A.K Mathur, J.— All these cases are interrelated and common arguments were raised, therefore, they are disposed of by this common order.
2. Writ Petitions Nos. 132-34 of 2003 under Article 32 of the Constitution are directed against the withdrawal of the POTA order by the State Government dated 29-8-2003 against the accused Udai Pratap Singh, Raghuraj Pratap Singh @ Raja Bhaiya and Akshay Pratap Singh @ Gopalji. The Union of India was also permitted to be impleaded as a party-respondent.
3. In SLP (Crl.) No. 5609 of 2004, the petitioner has challenged the order passed by the POTA Review Committee dated 30-4-2004 under Section 60 of the Prevention of Terrorism Act, 2002 (15 of 2002) (hereinafter referred to as “POTA”). Leave granted.
4. In SLP (Crl.) No. 1521 of 2004, the High Court order dated 24-2-2004 was challenged whereby the accused Akshay Pratap Singh @ Gopalji was granted bail in Case No. 10 of 2003, under Sections 3/4 of POTA, Police Station Kunda, District Pratapgarh, U.P on his furnishing a personal bond for Rs 1,00,000 with two sureties each in the like amount to the satisfaction of the Special Judge, Designated Court, Kanpur.
5. TPs (Crl.) Nos. 82-84 of 2004 have been filed by the petitioners apprehending that there is likelihood of miscarriage of justice in the State of U.P seeking transfer of cases pending against the accused persons from the Special Judge, Kanpur Nagar, U.P to the Designated Court in Delhi.
6. In order to appreciate the controversy involved in the matter, it will be proper to take the first case i.e SLP (Crl.) No. 5609 of 2004 whereby the Review Committee reviewed the cases of all the three respondents i.e Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias Gopalji under Sections 3/4 of POTA and directed the State Government to release all these accused persons and the proceedings against them shall deem to have been withdrawn from the date of this direction and they may be released from custody forthwith under Sections 3/4 of POTA by order dated 30-4-2004. Aggrieved by this order, the present petition was filed by the appellant.
7. The prosecution case as disclosed in the recovery memo dated 25-1-2003 of 1345 hrs lodged at PS Kunda by Paramhans Mishra, Inspector in-charge, PS Kotwali Kunda, that he along with the informant and other police officials raided the house of Udai Pratap Singh for execution of warrant of arrest in Crime No. 55 of 1993 under Sections 2/3 of the Gangsters Act pending before the Special Judge, Allahabad. They entered through the main gate and went inside the Raj Mahal premises where they found Shri Kesri Nandan, Advocate, who told them that he was an advocate for civil cases of Udai Pratap Singh. They found Udai Pratap Singh present in the Raj Mahal where he was standing with one AK-56 rifle with black colour belt hanging on his right shoulder. On the rifle, there was triangular sign on the butt with 56 written in between it, then something was written in Chinese language and the number was printed as 1600232 and the weapon was in perfect condition, and on his shoulder there was a bag with three pieces of magazines of AK-56 rifle. After unloading the AK-56 rifle they found 36 bullets. When he was asked to produce the licence, he could not show anything nor was he ready to tell them how he had acquired all these items. It is further alleged that when they entered his bedroom they found (i) 25 bullets of .75 and .65 bores, (ii) 16 bullets of 400 NITRO, (iii) 1 bullet of .577 bore, (iv) 3 other old rusted bullets which they were not able to read, (v) 12 bullets of .405, (vi) 35 bullets of 77 mm, and (vii) 35 bullets which were old, rusted and not readable. After that they found a square wooden box in yellow-coloured polythene bag which contained in it about 200 gm of explosive chips and in grey-coloured polythene bag there was some suspicious black powder. In a white cotton bag there was a blue-coloured polythene bag which contained near about 400 gm suspicious brown-coloured powder. In the same bedroom in another corner 55 bullets of .605 bore and 22 bullets of .22 and two pieces of Motorola wireless sets were also found. They further raided the mango gardens of Udai Pratap Singh from two clues given by Bhole Tewari. In the western direction of the Raj Mahal Bhadri, at 200 m from the western wall in the mango gardens of Udai Pratap Singh, the police discovered freshly dug mud. After digging 3 ft deep with length of 5 ft and width of 4 ft they discovered three green polythene bags and they also found (i) one DBBL gun, (ii) another DBBL gun of .12 bore, (iii) another DBBL Gun No. 4136 C/1, (iv) another DBBL gun number destroyed, (v) one rifle, (vi) one SSBBL Gun No. 3077-1994, (vii) one SBBL Gun No. 12194-B.2, (viii) five pieces of SSBBL guns, (ix) two pieces of Mauser guns, (x) two pieces of muzzle-loading guns, (xi) thirteen pieces of swords, (xii) two pieces of hatchets, (xiii) two pieces of iron spears, (xiv) one cane with concealed sword, (xv) one iron axe with cap, and (xvi) one big knife with handle.
8. On 26-1-2003 they recovered one .30 Springfield self-loading rifle, one 30 carbine, 11 cartridges of .30 Springfield rifle and 30 cartridges of 30 carbine. This huge cache of arms was recovered in the raid by the police on 25/26-1-2003 and, therefore, an order under POTA was passed against all the three accused, namely, Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias Gopalji by the State Government. All this recovery of arms, ammunition and other weapons was detailed in the order. It was also disclosed that a conspiracy was hatched by Udai Pratap Singh to cause a massacre and/or to create terror after killing some VIPs. In this order it was mentioned that the statement of one Shri Rajendra Yadav was recorded on 30-2-2003 wherein he stated that Raghuraj Pratap Singh alias Raja Bhaiya and Akshay Pratap Singh alias Gopalji have brought AK-47 (56) rifle and given it to Udai Pratap Singh. It was also alleged that after this statement he was murdered on 3-3-2003 and the father of the deceased filed FIR No. 16 of 2003 under Sections 302/34/506/120-B IPC in PS Kunda, District Pratapgarh for causing the murder under a conspiracy hatched by Raghuraj Pratap Singh, Akshay Pratap Singh and Udai Pratap Singh. It was alleged that these persons kept the huge cache of arms and ammunition including AK-56.AK-47 in their house and whoever speaks against them meets the same fate. It was also alleged that they proposed to take some action against the Chief Minister Mayawati. It was also mentioned in the order that the said AK-56 rifle was brought by Raghuraj Pratap Singh in the presence of Akshay Pratap Singh and was given to Shri Udai Pratap Singh. On the basis of this, the State Government granted permission to launch prosecution under Section 50 of POTA to prosecute the accused persons, namely, Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias Gopalji under Sections 3(2), 3(3), 3(7) and 4 of POTA by order dated 5-5-2003. The petitioner has given details of the large number of criminal cases pending against these persons. Shri Raghuraj Pratap Singh is said to be involved in 37 cases for various offences under Sections 302, 307, 147, 148, 120-B, 320 IPC. The petitioner has also given a chart of the cases pending against Udai Pratap Singh for various offences under Sections 302, 307, 397, etc. totalling around 50 cases. The petitioner has also given a chart mentioning the cases against Akshay Pratap Singh for the offences under Sections 302, 307 and the Gangsters Act and many other cases under the Penal Code totalling around 32 cases. After this order was passed by the State Government against the accused persons, political events took a turn. A new regime came to power. This regime after assuming power revoked the order by an order dated 29-8-2003. This order was challenged by the petitioner in Writ Petitions (Crl.) Nos. 132-34 of 2003 under Article 32 of the Constitution before this Court.
9. Meanwhile the accused also filed a review petition under Section 60 of POTA before the Review Committee appointed under POTA. They also filed a petition before the Central Government. The Review Committee headed by Justice Naseem Uddin and Rajendra Kumar Dubey, ex-Commissioner in U.P reviewed the matter and held that since there was no case against the applicants under POTA and no prima facie case was found under Sections 3 and 4 of POTA, therefore, there was no basis for proceeding against the accused under POTA and the State of U.P was directed to release all the three applicants. This is the subject-matter of Special Leave Petition (Crl.) No. 5069 of 2004. All the arguments were directed at whether the order passed by the Review Committee is sustainable in law or not. In fact, before this order of the Review Committee the State Government had already passed the order for withdrawing the cases against all the accused under POTA by order dated 29-8-2003 but since the order was passed by the Review Committee therefore we shall now deal with this petition first that whether this order of the Review Committee can be sustained or not.
10. Before we address ourselves to and examine the validity of this order passed by the Review Committee under Section 60 of POTA, it will be relevant to review the necessary provisions of POTA. The said Act i.e the Prevention of Terrorism Act, 2002 was promulgated by Parliament with a view to prevent terrorist activities and matters connected therewith. A “terrorist act” has been defined in Section 2(1)(g) which reads as under:
“2. (1)(g) ‘Terrorist act’ has the meaning assigned to it in sub-section (1) of Section 3 and the expression ‘terrorist’ shall be construed accordingly;”
11. Section 3 reads as under:
“3. (1) Whoever,—
(a) with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature or by any other means whatsoever, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any person and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act;
(b) is or continues to be a member of an association declared unlawful under the Unlawful Activities (Prevention) Act, 1967 (37 of 1967), or voluntarily does an act aiding or promoting in any manner the objects of such association and in either case is in possession of any unlicensed firearms, ammunition, explosive or other instrument or substance capable of causing mass destruction and commits any act resulting in loss of human life or grievous injury to any person or causes significant damage to any property,
commits a terrorist act.
Explanation.—For the purposes of this sub-section, ‘a terrorist act’ shall include the act of raising funds intended for the purpose of terrorism.
(2) Whoever commits a terrorist act, shall—
(i) if such act has resulted in the death of any person, be punishable with death or imprisonment for life and shall also be liable to fine;
(ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine.
(4) Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine:
Provided that this sub-section shall not apply to any case in which the harbour or concealment is by the husband or wife of the offender.
(5) Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist acts, shall be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both.
Explanation.—For the purposes of this sub-section, ‘terrorist organisation’ means an organisation which is concerned with or involved in terrorism.
(6) Whoever knowingly holds any property derived or obtained from commission of any terrorist act or has been acquired through the terrorist funds shall be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both.
(7) Whoever threatens any person who is a witness or any other person in whom such witness may be interested, with violence, or wrongfully restrains or confines the witness, or any other person in whom the witness may be interested, or does any other unlawful act with the said intent, shall be punishable with imprisonment which may extend to three years and fine.”
12. Section 4 reads as under:
“4. Where any person is in unauthorised possession of any,—
(a) arms or ammunition specified in columns (2) and (3) of Category I or Category III(a) of Schedule I to the Arms Rules, 1962, in a notified area,
(b) bombs, dynamite or hazardous explosive substances or other lethal weapons capable of mass destruction or biological or chemical substances of warfare in any area, whether notified or not,
he shall be guilty of terrorist act notwithstanding anything contained in any other law for the time being in force, and be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakh or with both.
Explanation.—In this section, ‘notified area’ means such area as the State Government may, by notification in the Official Gazette, specify.”
13. Section 60 lays down that the Central Government and the State Government constitute a Review Committee for the purposes of reviewing the cases. Section 60 reads as under:
“60. (1) The Central Government and each State Government shall, whenever necessary, constitute one or more Review Committees for the purposes of this Act.
(2) Every such Committee shall consist of a Chairperson and such other members not exceeding three and possessing such qualifications as may be prescribed.
(3) A Chairperson of the Committee shall be a person who is, or has been, a Judge of a High Court, who shall be appointed by the Central Government, or as the case may be, the State Government, so however, that the concurrence of the Chief Justice of the High Court shall be obtained in the case of a sitting Judge:
Provided that in the case of a Union Territory, the appointment of a person who is a Judge of the High Court of a State shall be made as a Chairperson with the concurrence of the Chief Justice of the High Court concerned.”
Sub-sections (4) to (7) inserted by Act 4 of 2004 w.e.f 27-10-2003:
“60. (4) Without prejudice to the other provisions of this Act, any Review Committee constituted under sub-section (1) shall, on an application by any aggrieved person, review whether there is a prima facie case for proceeding against the accused under this Act and issue directions accordingly.
(5) Any direction issued under sub-section (4),—
(i) by the Review Committee constituted by the Central Government, shall be binding on the Central Government, the State Government and the police officer investigating the offence; and
(ii) by the Review Committee constituted by the State Government, shall be binding on the State Government and the police officer investigating the offence.
(6) Where the reviews under sub-section (4) relating to the same offence under this Act, have been made by a Review Committee constituted by the Central Government and a Review Committee constituted by the State Government, under sub-section (1), any direction issued by the Review Committee constituted by the Central Government shall prevail.
(7) Where any Review Committee constituted under sub-section (1) is of opinion that there is no prima facie case for proceeding against the accused and issues directions under sub-section (4), then, the proceedings pending against the accused shall be deemed to have been withdrawn from the date of such direction.”
A perusal of these relevant sections shows that Section 3 deals with terrorist activities and we are specially concerned with sub-section (3) which, inter alia, states that whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. Therefore, the ambit of a “terrorist act” is very wide and in this any person who commits or advocates, abets, advises or incites or knowingly facilitates the commission of or is involved in the preparation of a terrorist act can be roped in under the wide definition of “terrorist act”. In fact, sub-section (1) of Section 3 clearly says that whoever with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or a section of the people does any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or lethal weapons or poisons or noxious gases or other chemicals or by any other substances of a hazardous nature or by any other means whatsoever, in such manner as to cause death or injuries to any person or persons or loss of or damage to or destruction of property or disruption of any supplies or services essential to the life of the community or causes damage or destruction of any property or equipment used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or detains any persons and threatens to kill or injure such person in order to compel the Government or any other person to do or abstain from doing any act, will commit a terrorist act. That shows that if any person with the help of any bombs, dynamite or explosive substance or by firearms or lethal weapons terrorises the people or any section of people then such action will amount to a terrorist activity and the preparation thereof will also be punishable. Therefore, the question before us is whether the possession of the weapons by the accused persons in their house was of lethal weapons and the possession of the explosive substances was for preparation of a terrorist act or not. Secondly, whether unauthorised possession under Section 4(a) of the Arms Act and ammunition specified in columns (2) and (3) and Category I or Category III(a) of Schedule I to the Arms Rules, 1962 in a notified area would attract the wrath of this provision. Likewise, whether the possession of hazardous explosives or lethal weapons capable of mass destruction by these accused persons can be prosecuted or not under Section 4(b) of the Act.
14. Learned counsel for the appellant has seriously challenged the order passed by the Review Committee. Learned counsel for the petitioner submitted that in fact the Review Committee did not appreciate the scope of Section 4 of the Act properly. He submitted that though the cases of these accused persons are covered under Section 4(a) because of unauthorised possession of arms and ammunition, but in case it is not covered under Section 4(a), then alternatively it is squarely covered under Section 4(b) because there is no need to notify the area under Section 4(b) as required under Section 4(a) of the Act.
15. Shri Shanti Bhushan, learned Senior Counsel appearing for the State supported the order of the Review Committee. Shri Rao, learned Senior Counsel appearing for the accused-respondents also strenuously urged that the order passed by the Review Committee is correct and the Review Committee has not committed any irregularity or illegality.
16. Section 4 already reproduced above, has two parts, one deals with the possession of arms and ammunition specified in columns (2) and (3) of Category I or Category III(a) of Schedule I of the Arms Rules, 1962, the unauthorised possession of them in a notified area is punishable. Now Category I of Schedule under the Arms Rules, 1962 read with Category III(a) of Schedule I reads as under:
“SCHEDULE I
(See Rule 3)
Category
Arms
Ammunition
1
2
3
I
(a) Prohibited arms as defined in Section 2(1)(i) and such other arms as the Central Government may, by notification in the Official Gazette, specify to be prohibited arms.
Prohibited ammunition as defined in Section 2(1)(h) and such other articles as the Central Government may, by notification in the Official Gazette, specify to be prohibited ammunition.
(b) Semi-automatic firearms, other than those included in Categories I(c) and III(a), smooth-bore guns having barrel of less than 20″ in length.
Ammunition for arms of Category I(b).
(c) Blot action or semi-automatic rifles of .303″ or 7.62 mm bore or any other bore which can chamber and fire service ammunition of .303″ or 7.62 mm calibre; muskets of .410″ bore or any other bore which can fire .410″ musket ammunition; pistols, revolvers or carbines of any bore which can chamber .380″ or .455″ rimmed cartridges or service 9 mm or .445″ rimless cartridges.
Ammunition for firearms of Category I(c).
(d) Accessories for any firearms designed or adapted to diminish the noise or flash caused by the firing thereof.
Nil.
II
Machinery for manufacture or proof-testing of a firearm.
Machinery for manufacturing ammunition.
III
Firearms other than those in Categories I, II and IV, namely:
Ammunition for firearms other than those in Categories I, II and IV, namely:
(a) Revolvers and pistols.
Ammunition for firearms of Category III(a).
(b) Breech-loading rifles other than .22 bore rifles mentioned in Category III(c) below.
Ammunition for firearms of Category III(b).
(c) .22 bore (low velocity) rifles using rimfire cartridges, breech-loading smooth-bore guns and air-rifles.
Ammunition for firearms of Category III(c).
(d) Air-guns and muzzle-loading guns.
Ammunition for firearms of Category III(d).
IV
Curios and historical weapons, other than those excluded under Section 45(c).
Curios and historical ammunition.
V
Arms other than firearms: Sharp-edged and deadly weapons, namely: swords (including swordstick), daggers, bayonets, spears (including lances and javelins); battle-axes, knives (including kirpans and khukries) and other such weapons with blades longer than 9″ or wider than 2″ other than those designed for domestic, agricultural, scientific or industrial purpose, steel baton; ‘Zipo’ and other such weapons called ‘life preserves’; machinery for making arms, other than Category II; and any other arms which the Central Government may notify under Section 4.
Nil.
VI
VI(a) Articles containing explosives or fulminating material; fuses and friction tubes other than blank fire cartridges.
VI(b) Ingredients as defined in Section 2(b)(VII).
Note.—Parts and accessories of any arms or ammunition and charges for firearms and accessories for charges belong to the same category as the arms or ammunition.”
17. The second category i.e Section 4(b) says that the unauthorised possession of bombs, dynamites, hazardous explosive substances or other lethal weapons or poisons or noxious gases or other chemicals or any other substances of a hazardous nature capable of mass destruction whether notified or not, shall be punishable with imprisonment for a term which may extend to imprisonment for life or with fine which may extend to rupees ten lakhs or both. Therefore, the possession of bombs, dynamites or hazardous explosive substances or lethal weapons in an unauthorised manner is punishable in itself and need not be in a notified area. Therefore, Sections 4(a) and (b), the possession of the arms mentioned in clause (a), unauthorised possession thereof in a notified area is prohibited whereas in Section 4(b) any bomb, dynamite, hazardous explosive or lethal weapon capable of mass destruction is punishable irrespective of the fact whether the area is notified or not. The qualification of the notified area is not required in Section 4(b).
18. So far as Section 4(a) is concerned, the Review Committee had discussed the matter in great detail and it was found that the notification under Section 4(a) was not issued prior to the recovery of the arms and ammunition at the house of Udai Pratap Singh on 23-1-2003. It was submitted that the raid on the house of Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias Gopalji was politically motivated as these persons did not support the Government of Mayawati, the raid was conducted and POTA cases were launched against them. When the new Government came, headed by Chief Minister Mulayam Singh Yadav then this order was revoked under POTA as Raghuraj Pratap Singh supported this Government. We are not concerned with the political overtones of the matter. We are examining the matter purely from the legal point of view. The question before us is that on the relevant date whether the whole area of Uttar Pradesh was notified area or not under Section 4(a) of the Act. Much argument was addressed in this case and the original records of the Secretariat and of the Government Press were placed before us for our perusal. It may also be relevant to mention here that a Committee was appointed on the complaint made by some of the legislators that the raid at the house of Udai Pratap Singh was made prior to the issue of the notification of the notified area. The Committee after considering a full enquiry found that the notification of the notified area was promulgated on 29-1-2003 and it was communicated to all the District Magistrates on 31-3-2003 and it reached them thereafter. Since this finding was seriously debated before us also, therefore we perused the report of the Committee as well, we called the original record to satisfy ourselves, when exactly was the notification issued. After going through the note-sheet of the secretarial file as well as the record of the Government Printing Press, Lucknow, we are satisfied that in fact the notification declaring the whole of the State of Uttar Pradesh as a notified area was not published on 23-1-2003. But the decision on the note-sheet was taken on 22-1-2003 and a communication was sent to the Government Press for publication of it on 23-1-2003 but in fact it was published as per the record of the Government Press on 29-1-2003 though it was a dated notification dated 23-1-2003. Therefore, after close scrutiny of the records of the government secretariat's files as well as the original registers of the Government Press, we are of the opinion that the view taken by the Review Committee to this extent is correct that the whole area was notified on 29-1-2003 only and not on 23-1-2003, the date of the notification. The requisition reached the Government Press for publication at 5.30 on 27-1-2003 and it was published and ready for dispatch on 29-1-2003 and accordingly it was dispatched to the Home Department on 29-1-2003. Therefore, from these facts it is clear that the finding accorded by the Review Committee that the notification notifying the State of U.P as a notified area under Section 4(a) was published in the Extraordinary Gazette of U.P on 29-1-2003 and it was dispatched thereafter to all the District Magistrates. Therefore, it became effective from the date of its publication. Normally under the State General Clauses Act, an Act comes into force on the date when the assent of the Governor or the President, as the case may be, is first published in the Official Gazette of the State. Therefore, publication in the gazette is essential as it affects the rights of the public. Since this prohibitory notification notifying that the possession of certain kinds of arms in the notified area is prohibited, therefore, it would come into effect from the date when it was published in the Official Gazette.
19. Therefore, so far as this part of the finding given by the Review Committee that the notification under Section 4(a) had not come into existence at the time when the raid at the premises of Udai Pratap Singh was conducted, this finding of the POTA Review Committee is correct. As a result of this finding the charge under Section 4(a) cannot be sustained.
20. Now, coming to the alternative submission of the learned counsel that Section 4(b) where unauthorised possession of bombs, dynamites or hazardous explosive substances or lethal weapons capable of mass destruction is concerned, in that case the area need not be notified. The unauthorised possession thereof itself has been found to be punishable under this section. Learned counsel submitted that this aspect seems to have been completely missed by the Review Committee. The Review Committee only concentrated with regard to the question of Section 4(a), but did not examine the matter with reference to clause (b) of Section 4 of the Act. The two expressions which appear in Section 4(b) are relevant for our purpose i.e the possession of “hazardous explosive substances” or “lethal weapons capable of mass destruction”.
21. Learned counsel for the petitioner has submitted that the hazardous explosive substances recovered from the house of Udai Pratap Singh cannot be dismissed as explosives of low intensity and in that connection the learned counsel has invited our attention to the expression “hazardous” and also invited our attention to the findings given by forensic experts. The explosive substances recovered were sent to the Forensic Science Laboratory, Agra, U.P and the Forensic Science Laboratory in its report has observed as under:
“On analysis, explosive substances, nitrate, sulphur, potassium and charcoal were found in the exhibit. Organic chemical and DLC method has been used.”
22. Our attention was also invited to the observation of the bomb disposal/disbursement certificate wherein it was mentioned “low intensity”. Therefore, the question is whether this explosive can be said to be a hazardous substance or not. Firstly, it is unlikely that a law-abiding citizen will keep such quantity of explosives at his house. It is not an explosive for the purpose of firecrackers. In the light of the facts mentioned above, keeping of such explosive at their house does not show that it was meant for a bona fide purpose. The question is whether this substance is hazardous in nature or not. The very fact of keeping such huge quantity of explosives in the house is on the face of it hazardous and it is not kept normally by a person unless he deals in explosives with authorised licence for that purpose. The possession of such explosives without any authorised licence is a serious matter. Though, it is dealt with separately because the accused has already been charged under the Explosives Act, but in this present context can such unauthorised possession by a person be said to be bona fide, is it not hazardous or injurious for the public at large? “Hazardous” has been defined in Collins Cobuild English Language Dictionary as “something that is hazardous is dangerous, especially to people's health or safety”. “Hazardous” has also been defined in New Oxford Dictionary of English as “risky; dangerous”. Aiyar's Advanced Law Lexicon at p. 826 defines “hazardous substance” as:
“A solid waste, or combination of solid wastes which because of its quantity, concentration or physical, chemical or infectious characteristics may cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.”
23. “Explosive substance” has also been defined in Section 2 of the Explosive Substances Act, 1908 which reads as under:
“2. In this Act the expression ‘explosive substance’ shall be deemed to include any materials for making any explosive substance, also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement.”
Therefore, considering the hazardous substance under Section 4(b) means that possession of it by any person, be it notified area or otherwise is also punishable under the Act.
24. Learned Counsel Shri Shanti Bhushan and Shri Rao tried to play it down that as per the finding of the bomb disposal squad it is of low intensity and cannot fall in the category of hazardous substance. We regret, we cannot accept their submission. This explosive is capable of creating havoc if it is used for preparing a bomb, it is capable of mass destruction. Any person in this background possessing this hazardous explosive substance cannot be credited to have it for bona fide purpose. Therefore, the fact that hazardous substance was found in the house of Udai Pratap Singh clearly shows that the case is covered by Section 4(b) and it cannot be played down simply because it has been reported by the bomb disposal squad that it is of low intensity. This explosive substance is certainly hazardous and is capable of being used for preparation of bomb or other explosive material for scaring the people or for causing mass destruction, be it in terms of human beings or any building or otherwise. This aspect of the matter seems to have not been adverted to by the Review Committee.
25. Similarly, learned counsel for the appellant has also placed much emphasis on the expression “other lethal weapons”. That AK-56 is a weapon of such mass destruction that if it is fired then it can at a time kill a number of persons because of its lethal potentiality. The expression “lethal” has also been defined in Aiyar's Advanced Law Lexicon which reads as under:
“Lethal weapon.—A deadly weapon. The term ‘lethal weapons’ means deadly weapons. ‘Guns, swords, pistols, knives, and the like are lethal weapons as matter of law, when used within striking distance of the party assaulted. Others are lethal or not according to their capability of producing death or great bodily harm in the manner in which they are used.’
A lethal weapon is a weapon capable of causing an injury, and if it is barrelled and if a shot, bullet, or other missile can be discharged from it, it is a firearm. A signal pistol firing a cartridge with explosive ballistite and containing a phosphorous and magnesium flare is a lethal weapon.
To give ‘lethal’ its natural meaning, such a weapon should be proved to be one capable of causing injuries of a more than trivial nature and of a kind which it might reasonably be expected could lead to death.”
26. Stroud's Judicial Dictionary of Words and Phrases defines “lethal weapon” as under:
“A lethal weapon is a weapon capable of causing an injury, and if it is barrelled and if a shot, bullet, or other missile can be discharged from it, it is a firearm. A signal pistol firing a cartridge with explosive ballistite and containing a phosphorous and magnesium flare is a lethal weapon.”
27. AK-56 is a very dangerous weapon and it is used in warfare as well as in terrorist activities very frequently; the possession of which in an unauthorised manner is itself an offence under Section 4(b) of the Act. Learned counsel has also brought to our notice the potentiality of creating mass destruction by a weapon like AK-56 and invited our attention to the literature of AK-47 and AK-56; AK-56 is, in fact, the improved version of AK-47. AK-47 literature which has been brought to our notice reads as under:
“AK-47.net AK-47: The AK-47 was designed by Mikhail Timofeyevich Kalashnikov as a replacement for the SKS and as a rifle that could be used by Soviet tank crews. In 1946, while working at the Kovrov weapons plant, Kalashnikov began work on the AK-47. The AK-47 was accepted as the standard rifle for the Soviet Army in 1949 and retained that status until it was succeeded by the AKM. To this day between 30 and 50 million copies and variations of the AK-47 have been produced worldwide, making it the most widely used rifle in the world.
The AK-47 is chambered in 7.62 × 39 and features hardwood furniture with a fixed stock. The AK-47 has a 16-inch barrel with a muzzle nut to protect the threads. The AK-47 features a stamped receiver with a non-ribbed cover plate and magazine. The rifle can be fired in two different firing modes; semi and full auto. The AK-47 has an 800-metre leaf sight that is only adjustable for range. All windage adjustments must be made by using the front sight. The AK-47 weighs 4300 gm and has a rate of fire of 600rpm. The rifle will accept most synthetic and metal magazines, generally 30 rounds in capacity. The rifle's effective killing range is 1500 metres, and is generally not used for more than 300 metres. The original AK-47 was not outfitted for the use of a bayonet, however the design was changed and a bayonet was added. The AK-47 also features a hollow compartment in the buttstock which was used to keep the cleaning kit.”
(Source of information is www.ak-47.net/ak47.akru/ak47.html.)
28. AK-56 has the same features except some minor improvements on it which read as under:
“Calibre: 7.62 × 39
Action: Gas-operated, rotating bolt
Overall length: 874 mm
Weight: 3.80 kg
Magazine capacity: 30 rounds
Type 56 assault rifle was adopted by PLA in 1956, along with Type 56 carbine (which was a licence-built Soviet SSKS copy). Type 56 assault rifle was, in turn, also a licensed copy of the Soviet AK-47 assault rifle, with minor modifications.
Type 56 is a gas-operated, selective fire weapon. The receiver is machined from steel, the two-lugged bolt locks into receiver walls. Type 56 has AK-47 style controls with reciprocating charging handle and massive safety-fire selector lever at the right side of the receiver. The furniture was made from wood, and compact version with underfolding metallic buttstock was also available. The only visible difference from Soviet AK-47 is a permanently attached spike bayonet, which folds under the barrel when not in use.”
29. The design features have been quoted from Jane's Information Group which reads as under:
“Type 56 basic version with a fixed wooden stock, Type 56-I with a vertically folding metal stock, and Type 56-II with a horizontally folding metal stock. Except for the differences in the stock and the lack of a tool kit with the basic variant, the two versions with folding stock are identical to the basic variant.
Type 56 is such a reliable weapon that it can function normally after total immersion in mud and water. The fully chromed barrel ensures effective operation even at very low temperatures. Unlike the AKs, Type 56 is fixed with a foldable bayonet, but the two later versions have no bayonet.
All Type 56 assault rifles fire in either semi-automatic or automatic mode and have an effective range of about 300 m. At full cyclic rate, they can fire about 600 rounds per minute semi-automatic. Both Type 56-I and Type 56-II can mount a grenade launcher.”
The above potentiality of AK-56 is capable of causing mass destruction. It fires about 600 rounds per minute, it means 600 bullets if they hit all the 600 targets, it can lead to mass destruction. Therefore, the possession of such unauthorised weapon is dangerous and is capable of mass destruction. It is a lethal weapon capable of mass destruction and unauthorised possession thereof is itself punishable. This aspect had also not been adverted to by the Review Committee. The Review Committee only directed that an unauthorised possession of the weapons which have been specified in columns (2) and (3) of Category I or Category III(a) of Schedule I to the Arms Rules, possession of which in the notified area is punishable. But if at the same time one of the weapons falls in the category of Section 4(a), then it does not mean that since it falls in the category of Section 4(a), it stands excluded from the category of Section 4(b). If the weapon falls in the category of Section 4(b) also under the head “lethal weapon”, then irrespective of the fact that it falls in the category of Section 4(a) it will not be excluded from the category of Section 4(b). We cannot read both the provisions of clauses (a) and (b) to be exclusive of each other. Both the provisions have to be read harmoniously. If the weapon which is specified in clause (a) is equally covered under clause (b) under the heading of “lethal weapon”, then it would not mean that it shall stand excluded from Section 4(b). We have to keep in view the purpose for which this Act was enacted i.e prevention of terrorist activities and we cannot interpret the provisions of Sections 4(a) and (b) to be exclusive of each other. [Ref: State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600, (2005) 6 Scale 177.] If the weapons enumerated in clause (a) are also covered in clause (b), then it does not go out of the net of clause (b). This aspect was not addressed by the Review Committee at all. The Review Committee put a complete gloss over possession of the explosive substance, that it is not hazardous or capable of mass destruction because of its low intensity.
30. Secondly, the Review Committee has also entered into the merits of the matter that the accused persons Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias Gopalji cannot be connected with the recovery of this cache of arms. The role of the Review Committee is very limited and the Review Committee has to see a prima facie case and cannot enter into the merits that whether ultimately the conviction will be entailed or not or the evidence is so weak to connect the other accused persons. The role given to the Review Committee under sub-section (4) of Section 60 is very limited and it has only to see whether there is a prima facie case for proceeding against the accused under the Act or not. The Review Committee has travelled beyond its scope, the sufficiency of evidence cannot be gone into by the Review Committee. It is also not the job of the Review Committee whether confession is admissible or not. The role assigned to the Review Committee is very limited and if the prima facie case connects the accused on the basis of the material with the prosecution then it is not for the Review Committee to dilate on that as if they are trying the cases under the Act. As we have already mentioned above that we need not enter into the political controversy that whether the first order passed was politically motivated or the second order passed was also equally politically motivated by the other party in power, we do not want to go into these questions. The use of the Act for personal benefit of the political parties has to be condemned in no uncertain terms. This Act cannot be used for political ends; it is meant for the benefit of the nation so that the terrorist activities do not disturb the sovereignty or integrity of the nation. So far as this case is concerned, we are of the opinion that there is prima facie case for prosecuting the accused persons. These accused persons were charged under Section 3(3) read with Sections 4(a) and (b) of the Act. But so far as Section 4(a) is concerned, for the reasons mentioned above, it cannot proceed now. But it can proceed so far as under Section 3(3) and Section 4(b) of the Act are concerned along with the Arms Act and the Explosives Act. Therefore, we allow this appeal in part. We set aside the order of the Review Committee and hold that the respondents can be prosecuted under Section 3(3) and Section 4(b) of the Act and other provisions of the Explosives and the Arms Acts. The accused, Mr Udai Pratap Singh and Raghuraj Pratap Singh alias Raja Bhaiya may surrender before the Judge, Designated Court under POTA, Sessions Judge, Kanpur Nagar within a week and apply for bail. In case they fail to appear before the Judge, the Judge, Designated Court under POTA, Kanpur Nagar gets them arrested. So far as Akshay Pratap Singh is concerned, as he is already on bail, he need not surrender. However, any observation made in this order will not prejudice their trial.
SLP (Crl.) No. 1521 of 2004
31. This petition is directed against the order passed by the High Court granting the bail. By this petition, the petitioner has challenged the order passed by the High Court of Judicature, Allahabad releasing Akshay Pratap Singh @ Gopalji on bail. Since the bail has already been granted and he was in detention for a long time, we do not propose to interfere with the bail order, but observation made by the learned Judges in the order cannot be sustained as it is contrary to our finding. Therefore, SLP (Crl.) No. 1521 of 2004 is dismissed.
Writ Petitions (Crl.) Nos. 132-34 of 2003
32. This petition is filed against the order passed by the State Government dated 29-8-2003 whereby the Public Prosecutor was directed to withdraw the POTA cases against the accused persons. An application was moved by the Public Prosecutor for withdrawal of theses cases before the Special Judge, though no order was passed permitting withdrawal of these cases. However, in view of our finding in SLP (Crl.) No. 5609 of 2004, we cannot affirm the order of the State Government for withdrawal of these cases and consequential application made by the Public Prosecutor for withdrawal of these cases. The order passed by the Government dated 29-8-2003 as well as the application moved by the Special Public Prosecutor before the Special Judge, Kanpur Nagar cannot be sustained and accordingly the order passed by the State Government and the application moved by the Special Public Prosecutor before the Special Judge at Kanpur, both are rejected. In this connection our attention was invited to Sheonandan Paswan v. State of Bihar (1983) 1 SCC 438, Rajender Kumar Jain v. State (1980) 3 SCC 435, R.M Tewari v. State (NCT of Delhi) (1996) 2 SCC 610, Ayyub v. State of U.P (2002) 3 SCC 510 In these cases it has been laid down that the Public Prosecutor has to shoulder a greater responsibility for withdrawal of the cases under Section 321 CrPC. In Sheonandan Paswan v. State of Bihar (1983) 1 SCC 438 it was held:
“The settled law laid down by the Supreme Court has been that the withdrawal from the prosecution is an executive function of the Public Prosecutor and the ultimate decision to withdraw from the prosecution is his. Before an application is made under Section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The Government may suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so.
However, Section 321 of the Code does not lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application under that section. If the Public Prosecutor receives such instructions, he cannot be said to act under extraneous influence. On the contrary, the Public Prosecutor cannot file an application for withdrawal of a case on his own without instruction from the Government, since a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is appointed by the Government for conducting in court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public Prosecutor and the Government.
If the Government gives instructions to a Public Prosecutor to withdraw from the prosecution of a case, the latter after applying his mind to the facts of the case may either agree with the instructions and file a petition stating grounds of withdrawal or disagree therewith having found a good case for prosecution and refuse to file the withdrawal petition. In the latter event the Public Prosecutor will have to return the brief and perhaps to resign, for, it is the Government, not the Public Prosecutor, who is in the know of larger interest of the State.”
(emphasis supplied)
The Public Prosecutor cannot act like a postbox or act on the dictates of the State Government. He has to act objectively as he is also an officer of the court. At the same time the court is also not bound by that. The courts are also free to assess whether a prima face case is made or not. The court, if satisfied, can also reject the prayer. However, in the present case we have examined the matter and found that there is a prima facie case to proceed against the accused persons under Section 4(b) of the Act and the other provisions of the Explosives or Arms Acts, therefore, the sanction granted by the Government and application moved by the Public Prosecutor for withdrawal of the cases cannot be sustained. Hence Writ Petitions Nos. 132-34 of 2003 are accordingly allowed and the order of the State Government dated 29-8-2003 withdrawing the cases against the accused persons is quashed, likewise direction to the Public Prosecutor for withdrawing the cases from the court.
Transfer Petitions (Crl.) Nos. 82-84 of 2004
33. This petition relates to transfer of cases from the State of U.P to any other court under Section 406 CrPC, 1993 in Criminal Case No. 3 of 2003 in Crime Case No. 10 of 2003 under Sections 3 and 4 of POTA titled State v. Udai Pratap Singh, Raghuraj Pratap Singh @ Raja Bhaiya and Akshay Pratap Singh @ Gopalji pending before the Designated Court under POTA at Kanpur to the Designated Court under POTA at Delhi or before any other Special Judge at Delhi.
34. Likewise, Crime Cases Nos. 113 and 209 of 2002 under Sections 2/3 of the U.P Gangsters and Anti-Social Activities (Prevention) Act, 1986 titled State v. Udai Pratap Singh, Raghuraj Pratap Singh @ Raja Bhaiya and Akshay Pratap Singh @ Gopalji pending in the Court of Special Judge (Gangsters Act), Allahabad, U.P to the Court of Special Judge at Delhi or to any other court at Delhi.
35. The petitioner has stated that there will be no chance of fair trial in the State of U.P as most of the witnesses are afraid to speak against the respondents and even one Shri Rajender Yadav was killed as he deposed against these persons. It was also mentioned that the State Government is not serious. The State Government has already withdrawn the POTA cases against the accused persons and directed the Public Prosecutor to withdraw these cases. In this background, there is no likelihood of fair trial in the State of U.P The respondents failed to file counter-affidavit, but an affidavit has been filed by one Dinesh Priyadarshi on behalf of Respondents 2 to 4. But no affidavit was filed by the respondents though they were made a party to the petition. We fail to understand why the affidavit has not been filed by the respondents themselves. It is alleged that the accused Raghuraj Pratap Singh alias Raja Bhaiya is an independent MLA who is supporting the present Government and is a Minister in the Government. After going through the transfer petition and counter-affidavit on behalf of the respondents, we are of the opinion that there is likelihood of miscarriage of justice in the background mentioned above. It is alleged that the murder of Shri Rajender Yadav has taken place and his younger brother is connected with this case. Therefore, in the interest of justice both these cases be transferred to any other court where, in a proper atmosphere, the matter can be dealt with fairly. In the interest of justice, we direct that Criminal Case No. 3 of 2003 in Crime Case No. 10 of 2003 under Sections 3 and 4 of POTA titled State v. Udai Pratap Singh, Raghuraj Pratap Singh @ Raja Bhaiya and Akshay Pratap Singh @ Gopalji, and Crime Cases Nos. 113 and 209 of 2002 under Sections 2/3 of the U.P Gangsters and Anti-Social Activities (Prevention) Act, 1986 titled State of U.P v. Udai Pratap Singh, Raghuraj Pratap Singh @ Raja Bhaiya and Akshay Pratap Singh pending in the Court of Special Judge (Gangsters Act), Allahabad, U.P be transferred to a Special Judge in M.P Let the Hon'ble Chief Justice nominate any Special Judge to try these cases. The transfer petitions are accordingly allowed.