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CASE NO.:

Appeal (crl.) 686 of 2001

PETITIONER:

GURMAIL SINGH

Vs.

RESPONDENT:

STATE OF PUNJAB

DATE OF JUDGMENT: 18/03/2002

BENCH:

U.C. Banerjee & P. Venkatarama Reddi

JUDGMENT:

Banerjee, J.

In Sanjay Dutt v. State through C.B.I. Bombay (II) (1994 (5) SCC 410) a Constitution

Bench of

this Court while according a true conspectus of Section 5 of the Terrorist and Disruptive Ac

tivities

(Prevention) Act, 1987 came to a conclusion that the ingredients of the offence punishable u

nder Section 5

of the Act are :

(i) Possession of any specified arms and ammunition, etc.;

(ii) unauthorisedly; and

(iii) in a notified area.

In the event of availability of the above mentioned three ingredients of the offence and the

same

are proved, then and in that event the accused shall, notwithstanding anything contained in

any other law

for the time being in force, be punishable with imprisonment for a term which shall not be l

ess than five

years but may extend to imprisonment for life and shall also be liable to fine. The expres

sion 'possession'

in Section 5 has been stated to mean in Sanjay Dutt (supra) a conscious possession introduci

ng thereby

involvement of a mental element i.e. conscious possession and not mere custody without aware

ness of the

nature of such possession and as regards meaning of the word 'unauthorised' in the contex

t means and

implies without any authority of law.

Incidentally, the TADA Act cannot but be said to be a drastic piece of legislation a

nd the statutory

intent is clear enough to indicate that the same has been introduced in the Statute Book for

the purpose of

combating the growing menace of terrorism in different parts of the country. Needless to s

tate that in the

normal course of events the provisions ought not to be resorted to unless the felt necessity

of the situation

definitely prompts the authority concerned to invoke the same.

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Having had a brief look at the relevant statutory provision and adverting to the fac

tual element

involved in the matter in issue, it appears that on 11th October, 1992 at about 1.00 p.m. Co

nstable Mangal

Singh and Constable Sukhpal Singh brought accused Gurmail Singh before the SSP Anil Kumar Sh

arma at

the Police Station Phul. It stands alleged that the accused was found carrying one bag on hi

s head along

with four detonators on his right hand at the police station itself. The bag was searched a

nd the same was

found to be containing explosive materials. Usual formalities were completed, to wit, prep

aration for the

seizure; drawing of samples; preparation of the seizure memo in the presence of punch witnes

ses, etc. etc.

and it is on the basis of the aforesaid that the appellant herein was charged under Section

5 of the TADA

Act. The learned Designated Court on the basis of the statutory presumptions available in

terms of Section

5 of the Act convicted the appellant with an imprisonment of six years RI and to pay a fine

of Rs.500/- and

in default of payment of fine to undergo a further RI for six months and thus the statutory

appeal in terms

of Section 19 of the Act before this Court.

Mr. Goburdhan, learned counsel appearing for the appellant, with his usual eloquenc

e strongly

contended the impossibility of the situation as depicted by the prosecution by stating that

it is in the realm

of imagination to book an accused with unauthorised possession of an explosive substance in

the notified

area. The implication, he contended, is out and out a mere figment of imagination and the

manner and

method of arrival of the accused person at the Police Station stands out to be utterly absur

d.

Mr. Goburdhan contended that a person is supposed to be a conscious carrier of an ex

plosive

substance unauthorisedly in terms of Section 5 of the Act and in the event of translating th

e requirement of

the Act, it appears that a person carrying 27 Kgs of explosive substance in a gunny bag on h

is head together

with four detonators on his right hand enters a Police Station so that he may be taken into

custody and thus

be punished with a minimum imprisonment of five years and also may be with fine nobody in h

is senses

would be able to do such an act which stands, as stated by the prosecution, to the credit of

accused person

and that too at the instance of two constables of the Police Station : it is this factual ba

ckground which Mr.

Goburdhan wants to ascribe to be incredulous exercise of power under Section 5 of the TADA A

ct. Ex-

facie, however, in the event of there being a reality of such a situation, question of escap

e from the rigours

of law (TADA Act) would not arise.

The issue thus arises as to whether the factual background as suggested by the prose

cution can in

fact take place ever or the same stands planted to rope in the accused person.

Significantly, the charge-sheet also included, apart from Section 5 of TADA Act, off

ences

punishable under Sections 4/5 of the Explosive Act as also under Section 6 of the TADA Act a

nd the

accused stands acquitted thereunder. The learned Designated Court observed :

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"Since the offence proved against the accused is

covered by Section 5 of the TADA [P] Act, so all

the other offences punishable under Section 4 and

5 of the Explosive Act and Section 6 of TADA

[P} Act which relates to only enhancement of

penalty is found not attracted in this case. So,

accused is acquitted of the offence punishable

under Section 4 and 5 of Explosive Act and

Section 6 of TADA [P] Act, for which there is no

positive evidence."

As regards Section 5, the entire emphasis of the Designated Court seem to be on the

report of the

expert and the evidence of the police officials, PW5 Sukhdev Singh and PW6 Des Raj, DSP, w

hich is

said to have proved that the accused possessed such an explosive material in violation of Se

ction 5 of the

TADA Act. The learned Judge at Designated Court, Bathinda while dealing with the matter, d

oes not rule

out the improbability of the prosecution and ascribes it to be a story which looked improbab

le and upon

recording of such a finding it is a matter of great significance that the learned Designated

Judge holds the

accused guilty of the offence under Section 5 of the Act. In the event the case made out b

y the prosecution

is improbable, where however, is the scope for introduction of Section 5 of the TADA Act it

is difficult to

appreciate. Reliance has been placed on the evidence of PW5 and PW6, relevant extracts whe

reof are set

out hereinbelow :-

"PW.5.

On 11.10.92 I was posted as DSP Rampura Phul. On that day I was

present at PS Phul, where SSP Anil Kumar Sharma and SPD Sh. Mokam Singh

along with gunman had come to the police station. Accused Gurmail Singh r/o

Ravikalan had surrendered on the inspiration of C. Mangal Singh & Shispal

Singh one Onkar Singh was also alongwith accused who had also surrendered in

my presence. Inspector Des Raj had conducted the personal search of the

accused Gurmail Singh and accused was carrying a gunny bag from which black

coloured explosive gun powder were recovered which is also black Gallatin and

it was weight to be 27 kg. and he was found carrying 4 detonators in his bag in

right hand. One sample of 250 gm of separate was also prepared and it was

converted into the separate parcel and remaining was sealed in the same bag and

both the parcels were sealed bearing impression DR by Sh. Des Raj and same

were taken into possession vide memo Ex.PE attested be me and H.C. Rajinder

Singh and C-Mangat Singh, the accused present in the Court and my statement

was recorded. Seal after its use was handed over to H.C. Rajinder Singh, and

sample seal was also prepared ."

"P.W.6

On 11.10.92 I was posted as SHO P.S. Phul. On that day I was present

in the P.S. Phul. C.Mangat Singh and C.Sushpal Singh, who brought Gurmail

Singh accused present in the Court and one Onkar Singh. At that time SSP Anil

Kumar Sharma, SPD Sh. Mokam Singh and DSP Sukhdev Singh along with

their gunman were present in the police station P.S. Phul, the accused brought

before the said officer. At that time accused was found carrying the bag on his

head. It was searched and was found to be explosive. It was black gelatin. A

sample of 250gm was separate and was sealed and remaining bulk was also

sealed after weighting and total was found 27 kg. and out of this 27 kg., 250 gm

sample was drawn on and both the parcel were separately sealed with seal

bearing impression DR and specimen sample seal was kept separately and seal

after its use was handed over to H.C. Rajinder Kumar. The accused was also

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carrying a bag from his right hand from which 4 detonators were recovered and

a separate proceeding was done about the said detonators. ..

Since no body from the public came to us so none was joined. I had not sent

written requisition to call of public witness u/S 160 CPC. It is wrong to suggest

that accused had been implicated falsely and the case property was recovered

from any other person and false case was planted. "

"The accused surrendered at the police station at about 1.00 PM. The

detonators were not tested by me. The gun powder was in black colour and I

cannot tell of what chemical it was prepared, nor I know any chemical test about

the gun powder. I have not taken any training regarding the material of gun

powder. I cannot say if the gun powder is available in the Bazar. Only one

seal was used on the bag. The seal was taken back on the same day in the

evening after completion of investigation. The detonators were not sealed.

There was no special mark of identification on the detonators. The gunny bag

in which detonators were put was not sealed. The seal in some broken

condition and the latter of the seal are not proper the legible. A chit bearing

particulars of the case was affixed on the parcel Ex.P1 but there is no chit on the

Ex.P1 at present."

Significantly, Mangal Singh and Sukhpal Singh, said to be the source of inspiration

which

prompted the accused person and Onkar Singh to surrender along with 27 Kgs. of explosive sub

stance and

four detonators, have not been called as to the nature of inspiration which has prompted the

accused person

to come to the police station with 27 Kgs of explosive material along with four detonators :

why this lapse ?

Is this a deliberate or to cover up or to present make-belief situation which otherwise stan

ds not only

improbable but totally absurd : unfortunately, learned State Advocate has answered the same

in silence

rather than on a definite note.

As noticed earlier, the provisions of the TADA Act are rather drastic and have been

introduced in

the Statute Book only to combat the situation which the existing state of the law may not be

able to achieve.

Exercise of powers under TADA Act cannot possibly be taken recourse to as a matter of course

. The

invocation is not available on ordinary situation but to meet only a situation which cannot

but be ascribed

to be extra-ordinary and by reason of the felt need of the society. We have already, in th

e earlier part of

this judgment, recorded our observations pertaining to the TADA Act, as such we need not dil

ate further

excepting that the provisions are to be taken recourse to as a last resort and for the good

and betterment of

the society in general, which was otherwise not possible having regard to the existing state

of law.

Unfortunately it is a serious in-road to the liberty of an individual, but having regard to

betterment of the

society and upliftment of social strata the authority to take recourse to the legislation st

ands approved by

the few courts inspite of the same being very stringent in nature. It however ought always

to be thus of

very limited in application. The absurdity of the situation, though recorded by the learne

d Designated

Court, but. obviously being overawed by the presence of the two police officials in Court, a

s otherwise

there is no rhyme nor any reason to rely on the evidence, as noticed above, far less to conv

ict the accused,

for rigorous imprisonment in terms of the Statute.

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Needless to record that the statutory appeal confers jurisdiction on to this Court t

o hear an appeal,

both on facts and on law, and on perusal of the relevant evidence on record, we do feel it e

xpedient to

record that the reliance on the evidence of police officials is wholly misplaced since the

available evidence

does not warrant any credence more so by reason of the absence of two police constables who,

it has been

stated to be true inspiration for the two accused persons to surrender and the consequent co

nviction on the

basis thereof thus is manifestly erroneous and liable to be set aside.

In that view of the matter, this statutory appeal in terms of Section 19 of the TADA

Act succeeds.

The order of the Designated Court stands set aside and quashed as regards the appellant. Th

e appellant be

released forthwith, if not wanted in any other matter.

..J.

(Umesh C. Banerjee)

J.

(P. Venkatarama Reddi)

March 18, 2002.