AK-56 without license cannot be considered to be used for a bonafide reason and it can kill 600 people if on shots go unmissed. Merely because the explosives were qualified as of low intensity, it cannot be excluded from the category of hazardous substance and that possession of such quantity of weapons and bombs without license cannot be for bonafide use.
[Case Brief] S. K. Shukla and Ors. v/s State of U.P. and Ors.
S. K. Shukla and Ors. v/s State of U.P. and Ors.
WRIT PETITION (CRL) NO. 132, 134 OF 2003
Supreme Court of India
Shri Justice B. N Agarwal
Shri Justice A. K Mathur
November 10, 2005
Constitution of India, Prevention of Terrorism Act, 2005, Arms Act, 1959, Explosives Act
BRIEF FACTS AND PROCEDURAL HISTORY:
1. Paramhans Mishra, Inspector In-charge, P.S. Kotwali Kunda 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.
2. During the raid, Udai Pratap Singh was found with an AK-56 rifle with a bag of 3 pieces of magazine without license. The following arms and ammunitions were also 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.
(viii) a square wooden box yellow colored polythene bag 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, 55 bullets .605 bore and 22 bullets of .22, two pieces of Motorola wireless set.
(ix) A huge number of guns were also recovered from the garden area.
3. 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.
4. 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 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 decease filed an FIR No.16 of 2003 under Section 302/34/506/120B IPC.
5. 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.
6. 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.
7. A review petition was filed by the accused and a Review Committee was set up which held that there was no case against the accused u/s 3 and 4 of POTA and that the accused be released. SLP was filed challenging the said order.
8. A transfer petition was also filed by the present petitioner with respect to the prosecution of the accused be transferred.
9. A writ petition was also filed challenging the bail of Mr. Akshay Pratap Singh against the order of the High Court granting him bail.
10. The Supreme Court combined all the Writ Petitions, transfer petition and SLP in the present SLP and dealt with the same.
Ø ISSUE BEFORE THE COURT:
1. 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?
2. 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?
3. 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?
4. Whether the order of the State Government stands correct?
5. Whether there is a need to transfer the case?
6. Whether the order of the High Court stands correct?
Ø RATIO OF THE COURT
1. The counsel for accused submitted that the weapons recovered from the house cannot be dismissed as a hazardous weapon as they were of low intensity as per the reports of Forensic Science Laboratory.
2. After close scrutiny of the records of the Government Secretariat’s files as well as original registers of the Government Press, the court was 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.
3. The court relied on definition of hazardous substance as per Oxford Dictionary (“risky and dangerous”) and Aiyar’s Advanced Law 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."
4. The court observed that 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.
5. The court after considering various definitions of hazardous substance, lethal weapons and explosive substance was of the view that AK-56 without license cannot be considered to be used for a bonafide reason and it can kill 600 people if on shots go unmissed. The court said that merely because the explosives were qualified as of low intensity, it cannot be excluded from the category of hazardous substance and that possession of such quantity of weapons and bombs without license cannot be for bonafide use.
6. The court observed 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.
7. With respect to the notification, the court after reviewing the official notification and the documents was of the view that at the time of raid, the notification u/s 4 was not in force. 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.
8. The counsel of the petitioner submitted that in case the prosecution 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.
9. The court was of the view that the explosives were capable of creating a havoc if it is used for preparing a bomb, it is capable of mass destruction. The court also stated that if one 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).
10. In Sheonandan Paswan vs. State of Bihar and others 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.
11. 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.
12. With respect to the orders of the State government to revoke the previous order and case filed by the public prosecutor, the court was the opinion that the State Government errored in revoking the order since the facts clearly depicted that there exist a prima facie case u/s 4(b) of the Act.
13. Examining the point of the petitioner that there is a need to transfer the case, the court was of the opinion that there is no chance of fair trial in the State of U.P since the witnesses were afraid to speak against the accused and that the government was in favour of one of the accused. If the present case is dealt in the State of U.P, there will be a miscarriage of justice.
14. The court said that since the bail has already been granted by the High Court to Mr. Akshay Pratap Singh and that he was in detention for a long period, there is no need for any interference.
Ø DECISION HELD BY COURT:
1. The order of the Review Committee was set aside.
2. The court held that the respondents can be prosecuted u/s 3(3) and 4 of the Prevention of Terrorism Act, Arms Act and Explosives Act.
3. The Court ordered that the respondents must surrender (except Akshay Pratap who is on bail) and apply for bail else the respondents would be arrested.
4. The court ordered that the bail of Akshay Pratap remains in force therefore setting aside SLP(Crl) 1521 of 2004.
5. The order passed by the state government and the application filed by the public prosecutor for withdrawal of the cases was rejected therefore writ petition Nos.132-134 of 2004 is accordingly allowed.
6. The court directed that criminal case No.3/2003 in crime case No.10/03 under Sections 3 & 4 of POTA Act and that criminal case No.3/2003 in crime case No.10/03 under Sections 3 & 4 of POTA Act be transferred to a Special Judge in M.P.
7. Therefore, the transfer petition was allowed.