“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.”
|Case name:||S. K. Shukla and Ors. v/s State of U.P. and Ors.|
|Case number:||WRIT PETITION (CRL) NO. 132, 134 OF 2003|
|Court:||Supreme Court of India|
|Bench:||Shri Justice B. N Agarwal Shri Justice A. K Mathur|
|Decided on:||November 10, 2005|
|Relevant Act/Sections:||Constitution of India, Prevention of Terrorism Act, 2005, Arms Act, 1959, Explosives Act|
- BRIEF FACTS AND PROCEDURAL HISTORY:
- 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.
- 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:
- 25 bullets of .75, .65 bores
- 16 bullets of 400 NITRO
- 1 bullet of .577 bore
- 3 other old rusted bullets which were not able to read
- 12 bullets of .405
- 35 bullets of 77 mm and
- 35 bullets which are old, rusted and not readable.
- 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.
- A huge number of guns were also recovered from the garden area.
- On the basis of the raid, the State Government ordered prosecution against the accused u/s 3 and 4 of POTA, but after the order was passed, a new government came into power and revoked the previous orders. Writ Petition was filed against it.
- 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.
- A transfer petition was also filed by the present petitioner with respect to the prosecution of the accused be transferred.
- A writ petition was also filed challenging the bail of Mr. Akshay Pratap Singh against the order of the High Court granting him bail.
- The Supreme Court combined all the Writ Petitions, transfer petition and SLP in the present SLP and dealt with the same.
- ISSUE BEFORE THE COURT:
- 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.
- 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.
- 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.
- Whether the order of the State Government stands correct?
- Whether there is a need to transfer the case?
- Whether the order of the High Court stands correct?
- RATIO OF THE COURT
- 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.
- 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.”
- The court also examined the definition of explosive substance 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.”
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- DECISION HELD BY COURT:
- The order of the Review Committee was set aside.
- 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.
- 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.
- The court ordered that the bail of Akshay Pratap remains in force therefore setting aside SLP(Crl) 1521 of 2004.
- 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.
- 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. Therefore the transfer petition was allowed.