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CASE NO.:

Writ Petition (crl.) 132-134 of 2003

PETITIONER:

S.K. Shukla & Ors

RESPONDENT:

State of U.P. & Ors.

DATE OF JUDGMENT: 10/11/2005

BENCH:

B.N. Agrawal & A.K. Mathur

JUDGMENT:

J U D G M E N T

(with SLP(Crl) No. 1521/2004, T.P.(Crl) Nos. 82-84/2004 &

Crl.A. 1511/2005 @ SLP (Crl) No. 5609/2004)

A.K. MATHUR, J.

All these cases are inter-related and common arguments

were raised, therefore, they are disposed of by this common

order.

Writ Petition Nos 132-134/2003 under Article 32 of the

Constitution of India is directed against the withdrawal of the

POTA order by the State Government dated 29th August 2003

against accused Udai Pratap Singh, Raghuraj Pratap Singh @

Raja Bhaiya & Akshay Pratap Singh @ Gapalji. The Union of

India was also permitted to be impleaded as a party-respondent.

In SLP (Crl) 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 'the POTA'). Leave granted.

In SLP (Crl) 1521 of 2004, the High Court order dated

24.2.2004 was challenged whereby accused Akshay Pratap

Singh @ Gopalji was granted bail in case No.10 of 2003, under

Section 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.

T.P (Crl) Nos. 82-84/2004 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

In order to appreciate the controversy involved in the

matter, it will be proper to take the first case i.e. SLP(Crl) 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 Section 3/4 of the POTA Act 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proceedings against them shall deem to have been withdrawn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 the

custody forthwith under Section 3/ 4 of the POTA Act by order

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dated 30.4.2004. Aggrieved this order, the present petition was

filed by the appellant.

The prosecution case as disclosed in recovery memo

dated 25.1.2003 of 13.45 hrs lodged at P.S. Kunda by

Paramhans Mishra, Inspector In-charge, P.S. Kotwali Kunda that

he along with informant and other police officials raided the

house of Udai Pratap Singh for execution of warrant of arrest in

crime No. 55/1993 under Section 2/3 of the Gangster Act

pending before Special Judge, Allahabad. They entered through

main gate and went inside the Raj Mahal premises where they

found Shri Kesri Nandan, advocate, who told them that he is an

advocate for civil cases of Uday Pratap Singh. They found Uday

Pratap Singh present in Raj Mahal where he was standing with

one piece of AK 56 rife with black colour belt hanging on his

right shoulder. In 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 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 into his bed room they

found (i) 25 bullets of .75, .65 bores (ii) 16 bullets of 400 NITRO

(iii) 1 bullet of .577 bore (iv) 3 other old rusted bullets which were

not able to read (v) 12 bullets of .405 (vi) 35 bullets of 77 mm and

(vii) 35 bullets which are old, rusted and not readable. After that

they found a square wooden box yellow colored polythene bag

which contained in it about 200 gms of explosive chips and in

gray colour polythene bag there was some suspicious black

power. In a white cotton bag there was blue colour polythene

which contained near about 400 gms suspicious brown colour

powder. In the same bed room in another corner 55 bullets .605

bore and 22 bullets of .22, two pieces of Motorola wireless set.

They further raided the mango gardens of Uday Pratap Singh

from two clues given by Bhole Tewari. On the western direction

of the Raj Mahal Bhadri, at 200 mtrs from the western wall at the

mango gardens of Uday 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 polythene green bags and

they also found (i) one DBBL gun (ii) another DBBL gun .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 number 12194-B.2 (viii) five pieces of SSBBL

guns (ix) two pieces of Mauzre guns (x) two pieces of Muzzle

loading guns (xi) thirteen pieces of swords (xii) two pieces of

Hachet (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.

On 26th January, 2003 they recovered one 30 spring field

self loading rifle, one 30 carbine, 11 cartridges of 30 spring field

rifle and 30 cartridges of 30 carbine. These huge catchy of arms

were recovered on the raid by the police on 25/26th January 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 were detailed in the order. It was also disclosed

that a conspiracy was hatched by Uday Pratap Singh to cause a

massacre and/or to create terror after killing some VIPs. In this

order it was mentioned that statement of one Shri Rajendra

Yadav was recorded on 30.2.2003 wherein he stated that

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Raghuraj Pratap Singh alias Raja Bhaiyya 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 an FIR No.16 of 2003 under Section 302/34/506/120B IPC in

P.S. Kunda, Distt. 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 arms and ammunition including AK-56/AK-47 in

their house and whoever speaks against them meet the same

fate. It was also alleged that they propose to take some action

against Chief Minister Mayawati. It was also mentioned in the

order that the said AK-56 rifle was brought by Raghuraj Pratap

Singh in presence of Akshay Pratap Singh and was given to Shri

Udai Pratap Singh. On the basis of this, State Government

granted permission to launch prosecution under Section 50 of

the POTA Act 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 Act 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 offence under Sections 302,

307,147, 148, 120-B, 320 IPC. The petitioner has also given a

chart of the cases pending against Uday 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

offence under Sections 302, 307 & the Gangster Act and many

other cases under Indian 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 in power. This regime after resuming the power revoked

the order by an order dated 29.8.2003. This order was

challenged by the petitioner in the Writ Petition (Crl) 132-134 of

2003 under Article 32 of the Constitution before this Court.

Meanwhile the accused also filed a review petition under

Section 60 of POTA before the Reviewing Committee appointed

under the POTA Act. They also filed petition before the Central

Government. The Reviewing Committee headed by Justice

Naseem Uddin and Rajendra Kumar Dubey, ex Commissioner in

U.P. reviewed the matter and held that since there is no case

against the applicants under the POTA and no prima facie case

is found under Sections 3 and 4 of the POTA Act, therefore,

there is no basis for proceeding against accused under POTA

and the State of U.P. was directed to release all the three

applicants. This is the subject matter of the Special Leave

Petition (Crl) 5069 of 2004. All the arguments were directed on

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 has already passed the order

for withdrawing the cases against all the accused under the

POTA Act 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.

Before we address ourselves and examine the validity of

this order passed by the Review Committee under Section 60 of

the POTA Act, it will be relevant to review the necessary

provisions of the POTA Act. The said Act i.e Prevention of

Terrorism Act, 2002 was promulgated by the Parliament with a

view to prevent terrorists activities and the matters connected

therewith. The terrorist act has been defined in Section 2(1)(g)

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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;"

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

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:-

(a) 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:

(b) 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.

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(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 organization, which is involved in terrorists 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

organization" means an organization 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."

Section 4 reads as under:

"Where any person is in unauthorized possession of any:-

(a) arms or ammunition specified in columns (2)

and (3) of Category I or Category III(a) of Schedule

1 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."

Section 60 lays down that the Central Government and the

State Government constituting a Review Committing for

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

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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 concerned High Court.

4 to 7 Inst. by act 4/2004 w.e.f. 27.10.2003

(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 face 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 Terrorist Act is very

wide and in this any person who commits or advocate, abets,

advises or incites or knowingly facilitates the commission or

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involved in preparation to a terrorist act can be roped in under

the wide definition of the Terrorist Act. In fact, the 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. That shows that if

any person with the help of any bombs, dynamite or explosive

substance or by fire arm or lethal weapons terrorize 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 houses were lethal

weapons and the possession of the explosive substances were

preparation of the terrorist act or not. Secondly, whether

unauthorized possession under Section 4(a) of the Arms Act and

ammunition specified in column 2 and 3 and category (1) or

category 3(a) of Schedule 1 to the Arms Act, 1959 in notified

area would attract the wrath of this provision. Likewise, whether

possession of hazardous explosive or lethal weapons capable of

mass destruction by these accused persons can be prosecuted

or not under Section 4(b) of the Act.

Learned counsel for the appellant has seriously

challenged the order passed by 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 unauthorized

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.

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.

Section 4 has already reproduced above has two parts, one

with the possession of the arms and ammunition specified in

column 2 and 3 of the category 1 or category 3(a) of Schedule 1

of the Arms Rules, 1962, the unauthorized possession of them in

notified area is punishable. Now the category 1 of Schedule

under the Arms Rules, 1962 read with category 3(a) of the

Schedule 1 reads as under:

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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 fire-arms, other

than those included in categories 1 (c)

and III (a), smooth bore guns having

barrel of less than 29" 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 of

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 fire-arms of cate-

gory I (c).

(d) Accessories for any fire-arms

designed or adapted to diminish the

noise or flash caused by the firing

thereof.

Nil.

II

Machinery for manufacture or proof-

testing of a fire-arm.

Machinery for manufacturing

ammunition.

III

Fire-arms other than those in

categories I, II and IV, namely :

Ammunition for fire-arms other

than those in categories I, II and IV,

namely :

(a) Revolvers and pistols.

Ammunition for fire-arms of cate-

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gory III (a).

(b) Breech- loading rifles other than

.22 bore rifles mentioned in category

III (c) below.

Ammunition for fire-arms of cate-

gory III (b).

(c) 22 bore (low velocity) rifles using

rimfire cartridges, breech-loading

smooth-bore guns and air-rifles.

Ammunition for fire-arms of cate-

gory III (c).

(d) Air-guns and muzzle-loading guns.

Ammunition for fire-arms of cate-

gory III(d).

IV

Curios and historical weapons, other

than those excluded under Section 45

(c).

Curios and historical ammunition.

V

Arms other than fire-arms : Sharp-

edged and deadly weapons, namely-

swords(including sword-stick),

daggers, bayonets, spears (including

lances and javelins; battle-axes, knives

(including kirrpans 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 batton; "Zipo" and

other such weapons called "life pre-

serves"; 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.\027

Parts and accessories of any arms or ammunition and charges for fire-arms and

accessories for charges belong to the same category as the arms or ammunition.

The second category i.e. Section 4(b) which says that the

unauthorized possession of bombs, dynamites, hazardous

explosive substances or other lethal weapons or poisons or

noxious gases or other chemicals or by any other substances of

a hazardous nature capable of mass destruction whether

notified or not notified. Therefore, the possession of bombs,

dynamite or hazardous explosive substance or lethal weapons

in an unauthorized manner is punishable in itself and need not

be in notified area. Therefore, Section 4(a) and (b), the

possession of the arms mentioned in clause (a), unauthorized

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possession thereof in notified area is prohibited whereas in

Section 4(b) any bomb, dynamite, hazardous explosive or lethal

weapon capable of a mass destruction is punishable

irrespective of the fact that the area is notified or not notified.

The qualification of the notified area is not required in Section

4(b).

So far as Section 4(a) is concerned, the Review Committee

had discussed the matter in greater details 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 in the

house of Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap

Singh and Akshay Pratap Singh alias Gopalji were 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

overtone 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 was 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 issue of the notification of the notified area. The

committee after considering full enquiry found that notification

of notified area was promulgated on 29.1.2003 and it was

communicated to the district 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 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 whole of 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 dated notification

dated 23.1.2003. Therefore after close scrutiny of the records of

the Government Secretariat's files as well as 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 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

Extra Ordinary Gazette of U.P. on 29.1.2003 and it was

dispatched thereafter to all the districts magistrates. Therefore,

it became effective from the date of its publication. Normally

under the State General Clause 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

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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.

Therefore, so far as this part of the finding given by the

Review Committee that 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 so far

as charge under Section 4(a) cannot be sustained.

Now, coming to alternative submission of the learned

counsel that Section 4(b) where unauthorized possession of the

bombs, dynamites or hazardous explosive substance or lethal

weapons capable of mass destruction is concerned, in that case

the area need not be notified. The unauthorized 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 sub-section (b) of Section 4 of the Act. The two

expressions which appear in Section 4(b) are relevant for our

purposes i.e. the possession of "hazardous explosive

substance" or "lethal weapons capable of mass destruction" .

Learned counsel for the petitioner has submitted that the

hazardous explosive substances were recovered from the house

of Udai Pratap Singh cannot be dismissed as an explosive of low

intensity and in that connection learned counsel has invited our

attention to the expression hazardous and also invited our

attention to the findings given by the forensic experts. The

explosive substances recovered were sent for Forensic Science

Laboratory, U.P. Agra and Forensic Science Laboratory in their

report has observed as under:

"On the analysis explosive substances Nitrate,

Sulpher, Potassium and Charcoal were found in

the Exhibit. Organic chemical and DLC method

has been used."

Our attention was also invited to the observation of the

bomb disposal/disbursement certificate it was mentioned that

'low intensify'. Therefore the question is whether this explosive

can be said to be as hazardous substance or not. Firstly, it is

unlikely that a law abiding citizen will keep such quantity of the

explosive at his house. It is not an explosive for 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 bonafide purpose. The question is whether this

substance is hazardous in nature or not. The very fact of

keeping such huge quantity of explosive in house is on the face

of it is a hazardous and it is not kept normally by a person

unless who deals in explosive with authorized licence for that

purpose. The possession of such explosive without any

authorized licence is a serious matter. Though, it is dealt

separately because the accused has already been charged

under the Explosive Act. But in this present context can such

unauthorized possession by a person can be said to be a

bonafide, is it not a hazardous or injurious to the public at large?

The hazardous has been defined in Collins Cobuild English

Language Dictionary as "something that is hazardous is

dangerous, especially to people's health or safety. The

hazardous has also been defined in the New Oxford Dictionary

of English as "Risky; dangerous". Aiyar's Advanced Law

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Lexicon at page 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."

The explosive substance has also been defined in Section

2 of the Explosive Substance 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 substances; also any part of

any such apparatus, machine or implement."

Therefore considering the hazardous substance under

Section 4(b) mean that possession of it by any person be it

notified area or otherwise is also punishable under the Act.

Learned Counsel Shri Shanti Bhushan and Shri Rao tried

to play it down that as per the finding of the bomb demolishing

squad it is of low intensity and cannot fall in category of

hazardous substance. We regret, we cannot accept their

submission. This explosive is capable of creating a 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 bonafide

purpose. Therefore, the fact that hazardous substance was

found at 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 demolishing

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 the human beings or

any building or otherwise. This aspect of the matter seems to

have not been adverted by the Review Committee.

Similarly, learned counsel for the appellant has also

placed much emphasis on the expression "other lethal

weapons". AK-56 is a weapon of such a mass destruction that

if it is fired then it can at a time kill number of persons because

of his 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 t he manner in which they are used."

A lethal weapon is a weapon capable of causing an injury, and

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if it is barreled 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 ballistic and containing a

phosphorous and magnesium flare is a lethal weapon

To give 'legal' is 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."

Stroud's Judicial Dictionary of Words & Phrases defines

'lethal weapon' as under:

"A lethal weapon is a weapon capable of causing an injury,

and if it is barreled 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".

AK-56 is a very dangerous weapon and it is used in the

warfare as well as in terrorist activities very frequently. The

possession of which in an unauthorized manner is itself is 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 the 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 world wide, making it the most widely

used rifle in the world.

The AK-47 is chambered in 7.62X39 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 a 800 meter leaf sight that is only

adjustable for range. All windage adjustments must be made

by using the front sight. The AK-47 weighs 4,300 g and has a

rat e of fire of 600rpm. The rifle will accept most synthetic and

metal magazines, generally 30 rounds in capacity. The rifles

effective killing range is 1,500 meters, and is generally not

used for more than 300 meters. 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)

AK-56 has the same features except some minor

improvement on it, reads as under:

"Caliber: 7.62X39

Action: Gas operated, rotating bolt

Overall length: 874 mm

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Weight: 3.80 kg.

Magazine capacity: 30 rounds

The type 56 assault rifle was adopted by PLA in 1956, along

with Type 56 carbine (which was a licence built Soviet SSKS

copy). The 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 ha 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 beyonet, which folds under the

barrel when not in use."

The design features has been quoted from the Janes

Information Group reads as under:

"Type 56 basic version with a fixed wooden stock, Type 56-1

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.

The 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, the Type 56 is fixed with a

foldable bayonet, but the two later version versions have no

bayonet.

All Type 56 assault rifles fire in either semiautomatic or

automatic mode and have an effective range of about 300 m.

At full cyclic rate, they can fire about 600 rounds per minute

semiautomatic. Both the 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 minutes, it means 600

bullets if hit all the 600 targets, it can lead to a mass destruction.

Therefore, the possession of such unauthorized weapon is

dangerous and is capable of mass destruction. It is a lethal

weapon capable of mass destruction and unauthorized

possession thereof is itself punishable. This aspect was also

not been adverted by the Review Committee. The Review

Committee only directed that an unauthorized possession of the

weapons which have been specified in column 2 and 3 of

category 1 or category 3(a) of Schedule 1 to the Arms Rules

possession of it in the notified area is punishable. But if at the

same time one of the weapons falls in the category of Section

4(b), then it does not mean that since it falls in category 4(a), it

stands excluded from 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

(a) will not be excluded from category of Section 4(b). We

cannot read both the provisions of clause (a) and (b) to be of

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

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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 the terrorists

activities and we cannot interpret provisions of Section 4(a) and

(b) to be exclusive of each other [Ref : 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 a hazardous or capable of

mass destruction because of its low intensity.

Secondly, the Review Committee has also has entered into

the merit of the matter that accused persons Raghuraj Pratap

Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap

Singh alias Gopalji cannot be connected with the recovery of

these catchy 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 merit 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 traveled 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. Role assigned to

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 first order passed was politically

motivated or the second order passed was also equally

politically motivated by 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 the political ends; it is meant

for the benefit of the nation so that the terrorists 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 Section 4

(a)(b) of the Act. But so far as Section 4(a) is concerned, for

reasons mentioned above, it cannot proceed now. But it can

proceed so far as under Section 3(3) & Section 4(b) of the Act is

concerned along with Arms Act & 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 Explosive and Arms Act. The accused,

Mr. Udai Pratap Singh and Raghuraj Pratap Singh alias Raja

Bhaiya may surrender before the Judge, Designated Court,

under POTA Act/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 Act, Kanpur Nagar get

them arrested. So far as Akshay Pratap Singh is concerned,

as he is already on bail, he need not to surrender. However, any

observation made in this order will not prejudice their trial.

SLP(Crl) 1521 of 2004

This petition is directed against the order passed by the

High Court granting the bail. By this petition, the petitioner has

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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) 1521 of 2004 is dismissed.

Writ Petition (Crl) 132-134 of 2003

This petition is filed against the order passed by the State

Government dated 29.8.2003 whereby public prosecutor was

directed to withdraw the POTA cases against the accused

persons. An application was moved by public prosecutor for

withdrawal of theses cases before Special Judge, though no

order was passed permitting withdrawal of these cases.

However, in view of our finding in SLP (Crl) 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 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 1983(1)

SCC 438, 1980(3) SCC 435, 1996(2) SCC 610, 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 Cr.P.C. In Sheonandan Paswan vs. State of

Bihar and others \026 1983 (1) SCC 438, it was held, that 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 received such instructions, he cannot be said to act

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

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". The Public Prosecutor cannot act like

a post box or act on the dictate of the State Governments. He

has to act objectively as he is also an officer of the Court. At the

same time court is also not bound by that. The courts are also

free to assess whether the prima face case is made or not. The

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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 other provisions of the

Explosive or Arms Act, therefore, the sanction granted by the

Government and application moved by public prosecutor for

withdrawal of the cases cannot be sustained. Hence writ

petition Nos.132-134 of 2004 is 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 Petition No.82-84 of 2004

This petition relates to transfer of the cases from State of

U.P. to any other court under Section 406 Cr.P.C. 1993 in

criminal case No.3/2003 in crime case No.10/03 under Sections 3

& 4 of POTA Act titled as State vs Udai Pratap Singh, Raghu Raj

Pratap Singh @ Raja Bhaiya and Akshya 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.

Likewise, crime case Nos. 113/2002 and 209/2002 under

Sections 2/3 of U.P. Gangster and Anti-social Activities

(Prevention) Act, 1986 titled as State vs Udai Pratap Singh,

Raghu Raj Pratap Singh @ Raja Bhaiya and Akshya Pratap

Singh @ Gopalji pending in the court of Special Judge (Gangster

Act), Allahabad, U.P. to the court of Special Judge at Delhi or to

any other court at Delhi.

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 No. 2 to 4. But no

affidavit was filed by the respondents though they were made a

party to the petition. We failed to understand why the affidavit

has not been filed by respondents themselves. It is alleged that

accused Raghuraj Pratap Singh alias Raja 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 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.3/2003 in

crime case No.10/03 under Sections 3 & 4 of POTA Act titled as

State vs Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja

Bhaiya and Akshya Pratap Singh @ Gopalji, and case No.

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113/2002 & 209/2002 under Section 2/3 of U.P. Ganster & Anti

Social Activities(Prevention) Act, 1986 titled as State of U.P. vs.

Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya &

Akshya Pratap Singh pending in the Court of Special

Judge(Gangster Act), Allahabad, U.P. be transferred to a Special

Judge in M.P. Let the Hon. Chief Justice nominate any Special

Judge to try these cases. The transfer petitions are accordingly

allowed.