1994 ALLMR ONLINE 41
BOMBAY HIGH COURT

A.C. AGARWAL AND I.G. SHAH, JJ.

Abdul Hamid Haji Mohammed Vs. State of Maharashtra

Criminal Writ Petition No. 902 of 1993

14th January, 1994


Respondent Counsel: R. F. Lambay, Addl. Public Prosecutor, .

Constitution of India,Art. 226, Terrorist and Disruptive Activities (Prevention) Act (1987),,S. 19 Terrorist and Disruptive Activities (Prevention) Act (1987),S. 3(1) Terrorist and Disruptive Activities (Prevention) Act (1987),S. 5

Cases Cited:
1993 Cri LJ 416 : AIR 1993 SC 1212 [Para 4]
1993 Cri LJ 2210 (PandH) (Rel. on) [Para 19]
1992 Cri LJ 2711 (Bom) : 1992 (2) Bom CR 478 (Rel. on) [Para 26]
1992 Cri LJ 394 (Bom) (Rel. on) [Para 25]
1991 Cri LJ 1085 (Guj) : 1990 (1) Crimes 183 [Para 15]
1965 (1) Cri LJ 714 (Mad) : AIR 1965 Mad 227 [Para 28]
AIR 1955 SC 233 [Para 14]


JUDGMENT

ASHOK AGARWAL, J.:-The petitioner in this case is one Abdul Hamid Haji Mohammed alias Hamid Chuva. He has preferred the present Writ Petition invoking the extra ordinary jurisdiction of the High Court under Article 226 of the Constitution of India inter alia praying for quashing the proceedings initiated against him under Terrorist and Disruptive Activities (Prevention) Act (28 of 1987) (hereinafter referred to as "the TADA Act"), on the ground that the provisions of the said Act are not applicable to the facts which are alleged against him. He has also prayed for grant of bail. On the night between 17/18th April, 1993 three persons, which included the petitioner, came to be arrested. The other two who were arrested were Mohamed Hussein Umer Merchant and Mohmed Farooq Mohamed Yusuf Batki. It was found that the three accused were connected with the property known as Picnic Guest House in Juhu. The accused Mohamed Hussein Umer Merchant is the owner of the said property. Apart from him one Eljar is said to have a share in the property to the extent of 30%. The accused, Mohmed Farooq Mohamed Yusuf Batki is a tenant in possession of the property. As far as the petitioner is concerned, he was employed by Mohmed Farooq Mohamed Yusuf Batki to develop the said property. The petitioner being the developer had submitted plans to the Bombay Municipal Corporation for sanction. Mohmed Farooq Mohamed Yusuf Batki is said to have employed security guards through a security contractor to guard the property. As far as the property in question is concerned, we have a description of it in an application for remand dated 20th April, 1993. The property is described as under :-

"The compound of 'Pick Nic Guest . House' is situated between the 'NULLAH' and the Lido Cinema. It houses four well constructed blocks consisting about 12 rooms each. The compound is surrounded with well constructed wall of the height of about 5' on all three sides with one side open to the 'NULLAH', with no approach possible. All the four blocks have been lying vacant following the eviction of the tenants, after the property was purchased by the persons closely linked with the under world. With the placing of the security guards, the place had become an ideal place for storing of anything from arms, ammunition to explosives........."

2. After the three accused were arrested between 12.30 to 1.30 p.m. in the night between 17th and 18th April, 1993 the petitioner was interrogated. During the interrogation the petitioner broke down and agreed to make a statement. He stated that he will discover certain arms which he had concealed in the aforesaid property. Consequent upon the statement, 6 AK rifles and 12 empty Magazines were recovered after digging a portion of the ground within the compound of the said property. The provisions of TADA Act were made applicable to the accused. All the accused were remanded to police custody and thereafter to judicial custody. So far as the other two accused were concerned they were released on bail, As far as the present petitioner is concerned he applied for bail, However, by an order passed by the designated Court on 4th June, 1993 the petitioner was remanded to judicial custody and his application for bail was adjourned to a later date. There after, by a judgment and order dated 2nd August, 1993 the learned Judge of the designated Court was pleased to reject his application for bail.

Date : 17th January, 1994.

3. The learned Judge of the trial Court has inter alia set out the case of the prosecution as under :-

"... the serial bomb blasts which took place in the city of Bombay on 12-3-1993 at various places...

It is the prosecution case that this conspiracy came to be initiated from the beginning of December, 1992 when communal riots broke out in Bombay. In furtherance of this conspiracy a huge quantity of arms, ammunition and explosives such as sophisticated firearms and ammunitions namely AK 56 assault rifles and its ammunition, hand grenades, explosives substances like RDA and gelatines, detenators etc. were smuggled into the country with the assistance of landing agents who usually dwell in smuggling activities at different ports. These firearms and ammunitions and explosives penetrated the country through a net work which distributes it to various persons for safe keeping so that the same could be made available as and when required.

In the present case a team of officers led by P.I. Kamble assisted by P.I. Nawghare were detailed to collect intelligence about persons involved in wide conspirary of illegal smuggling of firearm, and explosives to India and its distribution and storing.

On 18-4-93, on receipt of credible information, P. I. Kamble and P. I. Nawghare and their team arrested the applicant accused in connection with this case as the accused was suspected to be one of the persons concerned with the conspiracy of illegal smuggling of firearms and explosives from foreign country and its distribution and storing and the police have received specific information that the accused is responsible for smuggling 200 AK 56 rifles through one vessel near Gujarat.

After the accused was arrested, he was interrogated and he volunteered a statement which came to be recorded under the panchanama dated 18-4-1993 and pursuant to which six AK 56 rifles and 12 magazines were found in the compound of Picnic Guest House, behind Juhu Grant Restaurant, adjacent to Lido Cinema, Santacruz, Bombay which was kept concealed and hidden in the South East corner on the western bank of nalla 31/2deep under the ground in a gunny sack bag. The same came to be sized in the presence of panchas

...........................................................................................................

It is the prosecution case that the accused has two of his associates staying in Dubai who deal in hawalat transactions and are in close contact with Dawood Ibrahim and his associates who had supplied firearms and explosives to the accused Tiger Memmon and his associates. It is their case that these firearms have been stored in the said premises at the instances of Mohmed Anis who is the brother of Dawood and wanted in the bomb blast case, and that the accused is concerned with the conspiracy......

According to the prosecution the accused Abdul Hamid was in possession and control of the property known as Picnic Guest House, Juhu Grant Restaurant, adjacent Lido Cinema, Santacruz (W), Bombay, in his capacity as developer having arrangement with one Farooq Mohmed Yusuf a tenant of the said property and relative of the accused Mohmed Hussein Umer Merchant landlord and owner of the property who have been both arrested in the said case. One Ijaz who is wanted in the case and presently absconding has 30% share in the said property and is a close associate of accused Tiger Memmon. It is also their case that applicant accused has been in the past prosecuted for smuggling activities and was detained under COFEPOSA for smuggling activities. The accused is doing business in Hotel and is also a developer and builder."

4. The learned Judge has proceeded to note that it is not the case that the accused when arrested was found in possession of firearm but the accused was arrested on specific information that he has helped in smuggling 200 AK 56 rifles through his men and it is on further interrogation that the

The learned Judge has observed that the accused was found in possession of six AK 56 rifles and magazines. The same being discovered at his instance the accused has contravened Section 3 read with Section 25 of the Arms Act 1959. The firearms and magazines discovered at the instance of the accused fell in the category of prohibited arms as defined in Section 2(i)(1) of the Arms Act, 1959. At this stage the Court has no hesitation to hold that it was with an intent to aid the terrorists. The learned Judge noted that he had granted bail to the landlord and tenant of the said property (namely to Mohmed Hussein Umar Merchant and Mohmed Farooq Mohmed Yusuf) from whose property six AK 56 rifles and 12 Magazines came to be dugged out. He noted that the landlord and the tenant came to be arrested by the police mainly because they are concerned with the property in question. In the course of investigation the police could not lay hands on any material which would show that these two accused persons were in any manner concerned with storing of firearms which has been attributed to the applicant accused and as the investigation done by the police could not show any complicity of these two accused persons, they were enlarged on bail by the Court and the applicant accused cannot take any benefit out of it. Consequent upon the said finding the application for bail was rejected.

5. While the application for bail was pending before the Designated Court the petitioner was being remanded to judicial custody from time to time. Since the Designated Court had not disposed of the petitioner's application for bail, the petitioner preferred the present writ petition. After the petition was filed the Designated Court by its judgment and order passed on 2nd August, 1993 rejected the prayer for bail.

6. The present application came up for admission before my learned brothers V. P. Tipnis and M. L. Dudhat, JJ. Rule was issued and the petitioner was directed to be released on interim bail in the sum of Rs. 2,00,000/ with one surety in the like amount, on condition accused discovered six AK 56 rifles and 12 magazines. This prima facie makes out a case against the accused under Section 3(3) of the TADA Act, 1987. At this stage it can safely be inferred that the accused though may not be concerned with the general conspiracy but has definitely rendered assistance to terrorists as part of the consignments recovered at the instance of the accused do indicate that the nature of arms and ammunition i.e. AK 56 rifles which have been smuggled into the country by the conspirators were kept hidden and concealed by the accused which would amount to abetment. The learned Judge has gone on to observe that Section 3(3) makes out an offence as it reads "whoever conspires or attempts to commit, or advocates, abets (emphasis supplied) advises or incites or knowingly facilitates the commission of a terrorist act or any preparatory to a terrorist to act, shall be punishable with imprisonment for a term which shall not be less than five years...... ". The learned Judge has thereafter found that though strictly speaking the possession of only arms and magazines by the accused unauthorisedly in a notified area may not attract Section 5 of the TADA Act as can be seen from the decision in Parasaram v. State of Haryana reported in 1993 Cri LJ 416 : (AIR 1993 SC 1212) as the accused was not found in possession of any ammunition but definitely it would attract Section 6(1) of the TADA Act, which provides for enhanced penalties in the following terms :-

"6. Enhanced Penalties. - (1) If any person with intent to aid any terrorist or disruptionist, contravens any provision of, or any rule made under the Arms Act, 1959 (54 of 1959) the Explosives Act, 1884 (4 of 1884) the Explosive Substances Act, 1908 (6 of 1909) the inflammable Substances Act, 1952 (20 of 1952) he shall, notwithstanding anything contained in any of the aforesaid Acts or the rules made thereunder, 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. "

on condition that the petitioner shall report to the DCP, CID Unit 7, Crawford Market, Bombay, on every Monday and Thursday between 11.00 a.m. and 2.00 p.m. Further conditions were imposed namely that the petitioner shall not leave the country and shall not leave the limits of Greater Bombay. However, if the petitioner wants to visit Khandala for his business, he shall duly inform the DCB, CID Unit 7, Crawford Market, Bombay, in advance before proceeding to Khandala. The petitioner shall also make himself available as and when reasonably required by the DCP, CID Unit 7, for investigation. Having passed the aforsaid order, the court on an application made by the learned Assistant Public Prosecutor stayed the order of bail for a period of four weeks to enable the State to approach the Apex Court.

7. The State of Maharashtra thereafter carried the matter to the Supreme Court by filing S.L.P. (Crl.) No. 1647 of 1993 which gave rise to Criminal Appeal No. 644 of 1993. By an order passed on 13th October, 1993 the Supreme Court observed that "after going through the impugned order, we are at loss to understand as to what were the reasons that prompted the High Court to take a contrary view to that of the Designated Court observing that "the petitioner has made out a case for releasing him on bail during the pendency of the petition" and to pass the impugned interim order granting bail especially when the question of the jurisdiction of the High Court to entertain a bail application with regard to offences under the provisions of TADA is under serious challenge. By making the aforesaid observation the Supreme Court remanded the matter back to this Court with a direction to pass a reasoned order, both on the question of law and facts either on the main writ petition or on the ancillary relief of bail so that the Supreme Court may be in a better position to understand and examine the reasonings of the High Court. After passing of the aforesaid order the petitioner moved the Apex Court being Criminal Miscellaneous Petition No. 5764 of 1993 in Criminal Appeal No. 644 of 1993 for clarification. The petitioner in the said application stated as under :-

"Though in the final paragraph of order this Hon'ble Court has made it clear that no opinion on the jurisdiction of the High Court is being expressed and the High Court is free either to decide the main petition or the ancillary relief for bail, the following observation causes grave prejudice to the Respondent-

"After going through the impugned order, we are at loss to understand as to what were the reasons that prompted the High Court to take contrary view to that of the Designated Court observing that "the petitioner has made out a case for releasing him on bail during the pendency of the petition" and to pass the impugned interim order granting bail especially when the question of the jurisdiction of the High Court to entertain a bail application with regard to the offences under the provisions of TADA is under serious challenge."

8. By an order passed on 17th November 1993 the Supreme Court clarified as under :-

"We make the following clarification to the order dated October 13, 1993 :

"The High Court is at liberty to give its decision on the main question of the maintainability of the petition under Article 226 of the Constitution taking into consideration of the earlier decision of the said High Court as well as other High Courts and the Supreme Court. Further we clarify that the operation of the stay directed by this Court will enure only up to a point of the High Court passing an order either on the main or on ancillary reliefs. "

9. The present petition raises two issues : (1) in respect of jurisdiction of this Court under Article 226 of the Constitution of India in relation to orders passed in respect of prosecutions under the TADA Act and (2) whether on merits the petitioner is entitled to an order of bail?

l0. Shri Jethmalani, the learned counsel appearing in support of the petition has

contended that the jurisdiction to issue writs, which is conferred on High Courts, by Article 226 of the Constitution cannot be taken away by an enactment passed either by the Parliament or by the State Legislature. According to him, the only manner in which such power can be curtailed is by making an amendment to the Constitution itself. He proceeded to urge that if it is found that any enactment which is passed either by the Parliament or State Legislature seeks to annul or curtail the power or the jurisdiction of High Court under Article 226, the said enactment would be void and would be liable to be quashed and set aside.

11. Shri Lambay, the learned Addl. Public Prosecutor, however, contended that the TADA Act is a special Act dealing with a spcified area of operation in respect of offences of a serious nature and is passed by the Parliament with an object of preventing of and for coping with the terrorist and disruptive activities and for matters connected therewith or incidental thereto. The Act prescribes a Special Court to be designated Court under the Act. It has provided for a special place of sitting of the Court and has provided for separate jurisdiction of the Designated Courts. It has provided for a separate procedure and powers of the Designated Court. It has also provided special provisions in respect of appeals. He has pointed out that Section 19 of the Act has provided for an appeal to the Supreme Court, an appal or revision to any other Court from an order of a Designated Court is barred. According to Shri Lambay under the Scheme of the Act, an appeal to this Court is barred either from a final order or from an interlocutory order. If an appeal or revision to this Court is barred the same cannot be overcome by resorting to provisions of inherent powers under Section 482 of the Criminal Procedure Code, the writ jurisdiction or the powers of superintendence under Articles 226 and 227 of the Constitution of India.

12. In this context a reference can usefully be made to the decision of the Supreme Court in the case of Hari Vishnu Kamath v. Ahmad Ishaque reported in AIR 1955 SC 233. The SC in that case observed as follows at page 238 :-

"Articles 226 confers on High Courts power to issue appropriate writs to any person or authority within their territorial jurisdiction, in terms absolute and unqualified. Election Tribunals functioning within the territorial jurisdiction of the High Courts fall within the sweep of that power. If the High Courts are to recognise or admit any limitation on this power, that must be founded on some provision in the Constitution itself. "

13. In the case of K.T.K. Tangamani v. The Chief Secretary, Government of Madras reported in 1965 (1) Cri LJ 714 : (AIR 1965 Mad 225) the Division Bench of Madras High Court observed that Article 226 confers upon all the High Courts new and very wide powers subject alone to the two limitations of territorial jurisdiction, and the availability of the person or authority upon whom the writ issues, within such territory. Its power cannot be taken away or curtailed by any legislation short of an amendment of the Constitution. Any law which seeks to take away and restrict the jurisdiction of the High Court under Article 226 must be held to be void and the High Court will be clearly entitled to exercise its power under Article 226 free from the fetters imposed directly or indirectly.

14. In the case of Ayubkhan Kalandarkhan Pathan v. State of Gujarat reported in 1990 (1) Crimes 183 : (1991 Cri LJ 1085) the Division Bench of the Gujarat High Court has observed as follows at page 1093 of Cri LJ :-

"The question is before the accused is arrested and on account of overt act of the police if the petitioner feels that the fundamental right of personal liberty is imminently in danger and is likely to be violated by arresting him wrongly involving him for the offences under TADA Act and when he moved the High Court by filing petition under Article 226 of the Constitution, whether the High Court can look into the question as to

whether the provisions of TADA Act apply or not. In such circumstances the High Court has to consider the question of protection of fundamental right guaranteed under Article 21 of the Constitution and for that purpose it is necessary to consider as to whether the person concerned has been involved in the case as such or not by making proper allegation against him, for the offences under Sections 3 and 4 of the TADA Act. It cannot be gainsaid that for the purpuse of effectively exercising the power under Article 226 of the Constitution the High Court has power to consider the question as to whether the provisions of the TADA Act apply or not. "

15. In the case of Rafiq Abid Patel v. The Inspector of Police, Kashimira Police Station, Thane reported in 1992 Cri LJ 394 the Division Bench of this Court while dealing with the provision of Section 18 of the TADA Act has observed that in an appropriate case the High Court can, therefore, intervene even at the stage of investigation to set aside the application of the TADA Act to the accused if no case whatsoever is made out for applying it.

16. In our view the power to make laws which is vested either in the Parliament or in State Legislative stems from the authority to be derived from the Constitution of India. Thus all laws which are enacted either by the Parliament or by the State Legislature, have to be in confirmity with the provisions of the Constitution. In the event of there being any conflict the laws enacted by the Parliament or State Legislature are liable to be struck down as the same would be ultra vires the Constitution. Similarly the powers and jurisdiction conferred on the High Courts under Article 226 to issue against any person or authority including in appropriate cases any Government, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari are extra ordinary powers or functions bestowed upon the High Court by the Constitution. The said power cannot be taken away or abridged or curtailed by any enactment to be passed either by the Parliament or by the State Legislatures. If at all the said powers are required to be withdrawn or abridged or curtailed the same can be done only by the amendment to the Constitution itself and the same cannot be done by enacting any law by Parliament or State Legislature. If any enactment is found to be curtailed or abridged the said power, the said law itself will stand vitiated. ln the circumstances we are clearly of the view that there can be no curtailment or abridgment of the powers and functions conferred by Article 226 on the High Court by any provisions contained in the TADA Act. Dated 18th January 1994.

17. The power of the High Courts to issue writs is a prerogative right. It is, therefore, to be exercised sparingly. While exercising this discretionary jurisdiction conferred by Article 226 the High Court should not act as courts of appeal or revision to correct mere errors of law or of fact. Resort to the jurisdiction under Article 226 is not intended as an alternative remedy for relief which may be obtained by suit or other mode prescribed by statute. Where it is open to the aggrieved person to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided in a statute i.e. when there is an alternative efficacious remedy open, the High Court will not ordinarily exercise jurisdiction under Article 226 and permit the machinery created by the statute to be by-passed. Whether in a given case jurisdiction of issue of writs is to be exercised will largely depend upon facts and circumstances of each case. No hard and fast rule can be laid down in that behalf.

18. We shall now proceed to consider whether on the facts and circumstances of the present case, this is a fit case to exercise our extraordinary jurisdiction under Article 226. We have already reproduced in the foregoing paragraphs the case set up by the prosecution which is contained in several paragraphs of the judgment passed by the Designated Court. The facts narrated are long winding and contains sweeping allegations which seek to bring the case of the petitioner within the four corners of the TADA Act. However, the only fact which is alleged against the petitioners

is in respect of the discovery under Section 27 of the Evidence Act. As already pointed out, the petitioner along with others was arrested on the night between 17th/ 18 April 1993. Soon after the arrest, it is the case of the prosecution that the petitioner in consequence of the interrogation by the Police agreed to and thereafter discovered from the compound of the Picnic Guest House at Juhu 6 AK 56 rifles and 12 Magazines. This he discovered after digging a portion of the ground within the compound of the aforesaid Picnic Guest House. It is material to note that no ammunition of any nature was recovered at the instance of the petitioner.

19. Section 5 of the TADA Act in so far as is relevant provides that where any person is in possession of any arms and ammunition..... unauthorisedly in a notified area, he shall .... be punishable with imprisonment. .. . . . .. . .. In the case of Paras Ram v. State of Harayana reported in 1993 Cri LJ 416 : (AIR 1993 SC 1212) the Supreme Court has observed as under at page 417 of Cri LJ :-

"It was then argued, and, we think with substance, that S. 5 of the T.A. D.A. Act, 1987 applied only when a person was in possession of "arms and ammunition" and that the appellant, while he had been found in possession of a country-made pistol, had not been found in possession of any ammunition. We think that the words "arms and ammunition" in Section 5 should be read conjunctively. This is not merely a matter of correct grammar but also subserves the object of the T.A.D. A. Act, 1987. A person in possession of both a firearm and the ammunition therefor is capable of terrorist and disruptive activities but not one who has a firearm but not the ammunition for it or vice versa. It is, therefore, our view that the provisions of Section 5 of the T.A.D. A. Act, 1987 could not have been applied to the appellant."

20. When the application for bail was argued before the learned Designated Court the prosecution had sought to make good an offence under Section 5 of the TADA Act against the petitioner. However, in view of the above position, the learned Judge of the Designated Court has found that, since the petitioner was found in possession of only arms and magazines and not ammunition which could be used by the aforesaid arms, the provisions of Section 5 of the TADA Act may not be attracted. He, however, has found that the possession of the said arms would definitely attract Section 6(1) of the TADA Act. Section 6(1) of the TADA Act provides as under :-

"6. Enhanced penalties.- (1) if any person with intent to aid any terrorism or disruption contravenes any provision of, or any rule made under the Arms Act 1954 (54 of 1959), the Explosive Act, 1884 (4 of 1884), the Explosive Substances Act, 1908 (6 of 1908) or the inflammable Substances Act, 1952(20 of 1952), he shall, notwithstanding anything contained in any of the aforesaid Acts or the rules made thereunder, 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."'

The title of Section 6 is enhanced penalties. However, it appears that this heading is a misnomer as the said section 6 seeks to provide for an independent offence as mentioned therein. However, before the provisions of Section 6 can be said to be attracted, the prosecution has to be armed with positive material for imputing an intention on the part of the petitioner to aid any terrorism or disruption. It is only in case the petitioner is shown to have contravened any of the provisions of the Arms and Explosives Acts which are mentioned in the section with the requisite intention of aiding any terrorism or disruption, that the provisions of section can be said to be attracted. In the instant case, the only material which has been collected by the prosecution against the petitioner is the evidence in respect of discovery. The said discovery is alleged to have been made on 18th April, 1993. Moreover, the said discovery has been retracted on 20th April, 1993 when the petitioner was produced before the Designated Court at the time of second

remand application filed on that day. Roznama of the Designated Court of 20th April 1993 shows that the petitioner denied having made a statement leading to the discovery. It is pertinent to note that in the remand application dated 18th April, 1993 it has been alleged that the petitioner had made a statement that he along with some other persons has buried the weapons. Hence, even according to the prosecution, it does not appear that the petitioner alone is responsible for the concealment.

21. We have already given a description of the Picnic Guest House from where the discovery is alleged to have been made by the petitioner. We have noted that the owner of the property is one Mohamed Husain Umei Merchant and one Eajaz has 30% share the tenant is one Mohamed Farooq Mohamed Yusuf Batki. The property at the relevant time was being developed by the tenant and the present petitioner had been employed for the purpose of developing the property. We have also noted that as far as the property is concerned, the aforesaid tenant had employed security guards in order to protect the property. In the circumstances, it cannot even prima facie be held that the petitioner was in exclusive possession of the property. Moreover, the property is not a closed property. It is generally accessible. As far as the aforesaid owner and tenant are concerned, though they are as much in possession of the property as the petitioner, they have been released on bail.

22. The prosecution has sought to take recourse to various discoveries at the instance of different accused from different places and has tried to contend that the petitioner is a part and parcel of a general conspiracy in respect of terrorist and disruptionist. We have called upon Shri Lambay to produce before us any material which could connect the discovery by the petitioner with the other discoveries. Even after taking instructions from the Investigating Officer, he has been unable to produce any material to connect the petitioner with any other incidents or discoveries other than the discovery of the AK 56 rifles and the magazines. In the circumstances, we are constrained to hold that the provisions of Section 6 are also not attracted against the petitioner.

23. Shri Lambay, the learned Addl. Public Prosecutor has placed reliance on S. 2(1)(h), S. 3(1) and S. 3(3) of the TADA Act. Section 2(1)(h) provides "terrorist act" has the meaning assigned to it in sub-section (1) of Section 3, and the expression "terrorist" shall be construed accordingly. Sec. 3(1) provides as follows :-

"Whoever with intent to overawe the Government as by law established or to strike terror in the people or any section of the people or to alienate any section of people or to adversely affect the harmony amongst different sections of the people does any act or thing by using bombs, dynamite and other explosive substances or inflammable substances or fire-arms or other lethal weapons or poisonous or noxious gases or other chemicals or any other substances (whether biological or otherwise) of a hazardous nature in such a manner as to cause, or as is likely to cause, death of, or injuries to, any person or persons or loss of, or damage to, or distruction of, property or disruption of any supplies or services essential to the life of the communitv 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 commits a terrorist act. "

Sub-section 3(3) provides as follows :-

"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. terriorist 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.

24. In our view, the fact of discovery of AK 56 rifles and the Magazines which were

concealed under the ground does not and cannot satisfy the ingredients contained in the aforesaid sub-section (1) of Section 3 of the Act. The arms in question were concealed under the ground. Hence it cannot be said that the possession of the petitioner in respect of the said arms was with an intent to overawe the Government, or to strike terror in the people or any section of the people or to alienate any section of the people or to adversely affect the harmony amongst different sections of the people. The petitioner is not alleged to have done any act or thing by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature as is required under the said section. The petitioner is not alleged to have done any act or thing by using firearms. All that he is alleged to have done is to conceal the arms. Since he has not used the arms an important ingredient of the section is missing. The mere act of concealing the weapons will not justify an inference that the petitioner had the intention to overawe the Government.... etc. as required by Section 3(1). In the circumstances, we are inclined to hold that the provisions of Section 3 (1) or 3(3) are wholly inapplicable to the petitioner :

25. In the case of Narendra Govind Mangela v. The Inspector of Police reported in 1992 (2) Bom CR 478 : (1992 Cri LJ 2711) the Division Beneh of this Court has observed as under :-

"It cannot be said that provisions of Section 5 of the Act must be read independently and dehors of Section 3 and Section 4 of the Act. Sections 3, 4, 5 and 6 set out an integrated scheme for measures for coping with terrorist and disruptive activities and section 5 makes possession of unauthorised arm in a notified area an offence by itself punishable with imprisonment for life, the minimum not being for a term less than five years. The punishment prescribed under Section 5 is certainly heavier than the one prescribed under the ordinary law. It is not correct to suggest that mere possession of unauthorised arm in a notified area is sufficient to bring home the charge under Section 5 of the Act and such possession may not have any relation or nexus to the terriorist act or disruptive activity as described under Sections 3 and 4 of the Act. The legislature provided for a specific offence an enhanced punishment under Section 5 only because an area it notified on the basis that the terrorist act or disruptive activitiess in such area are undertaken on a large scale or likely to be undertaken on a large scale. The area cannot be declared a notified area by the State Government, as surely that could not have been in contemplation of the Parliament, even if there is not a trace of disruptive activity or commission of terrorist acts in such area. The occasion to specify any area as a notified area arises only when the Government is satisfied that terrorist acts and the disruptive activities are prevalent in that area. Once this aspect is borne in mind, then it is clear that mere possession of unauthorised arm in the notified area is not sufficient to invoke provisions of Section 5 of the Act, but Section 5 of the Act would be attracted provided such possession has some bearing to the terrorist acts or the disruptive activies. It is not necessary that the person in possession of unauthorised arm in a notified area shall personally be involved in terrorist acts or disruptive activities but if there is any material to indicate that unauthorised arm is likely to be permitted to be used for terrorist acts or disruptive activities, then Section 5 can be invoked. It is not possible to give any exhaustive list where Section 5 can be invoked, but same illustrations can be useful. In case the Investigating Officer has material that the possession of unauthorised arm in a notified area was intended for committing terrorist acts or disruptive activities or such arm is likely to be used for committing terrorist or disruptive activities, then Section 5 can be attracted. In case there is material available to indicate that a person found in possession of unauthorised arm in a notified area has a previous history of indulging in terrorist acts or disruptive activities, then invocation of Section 5 cannot be faulted. It hardly requires to be stated that the

nexus with the terrorist act or disruptive activity need not necessarily be after the date of declaration of the notified area, but can be even on an earlier date, though it should not be separated by long distance or otherwise it would snap the live link."

26. In the case of Bijender Kumar v. The State of Haryana reported in 1993 Cri LJ 2210 it has been observed that mere possession of unauthorised arms in a notified area is not sufficient to invoke Section 5. Nexus between such possession to terrorist acts or disruptive activities has to be proved.

27. In view of the above position and in view of the facts and circumstances of the case, we are constrained to hold that the provisions of the TADA Act are not applicable in the instant case.

28. Shri Lambay the learned Addl. Public Prosecutor has, however, contended that we need not examine the merits of the case as the petitioner has an alternative remedy by applying before the Designated Court under Section 18 of the TADA Act. A precise contention was taken by him before the Division Bench of this Court in the case of Rafiq Abid Patel v. The Inspector of Police Kashmira Police Station 1992 Cri LJ 394 and the same was rejected. In that case court was dealing with an application for anticipatory bail filed under Section 438 of the Criminal Procedure Code on an apprehension of being arrested by application of the TADA Act. The Court was also dealing with a contention that in view of the availability of an alternative remedy under Section 18 of the TADA Act, the Court should not exercise powers under Article 226 of the Constitution. The Court has held that the application of the TADA Act during the pendency of investigation, seriously affects the accused persons. In an appropriate case the High Court can, therefore, intervene even at the stage of investigation to set aside the application of the TADA Act to the accused if no case whatsoever is made out for applying it. In such a situation to refer the petitioner to the Designated Court under Section 18 of the TADA Act would not provide an adequate remedy. It was further held that if no prima facie case is disclosed for applying the provisions of the TADA Act, the Court can exercise its powers under Article 226 of the Constitution to entertain a petition.

29. As was found in the aforesaid case, we find that the material placed on record does not justify the application of the TADA Act to the petitioner. In the circumstances, we are constrained to hold that the detention of the petitioner under the provisions of the TADA Act are wholly unjustified. The petitioner will therefore be entitled to be released in so far as the application of the TADA Act is concerned. It is clarified that it would be open to the prosecution to proceed against the petitioner for offences such as under the Arms Act, or under any other law that may be permissible under law if so advised. In view of nor finding that the instant offence is not triable by the Designated Court, we direct that the case be transferred to the Sessions court, which will have jurisdiction to try the petitioner for offences under the Arms Act.

30. In the result, the petition succeeds.

31. We declare that the provisions of the TADA Act are not applicable to the case of the petitioner and consequently the prosecution pending against him before the Designated Court under the TADA Act are quashed. Since we find that the petitioner is liable to be prosecuted under the Arms Act we direct the Designated Court to transfer the case of the petitioner to the Court of Session for the purpose of taking cognizance of the offence punishable under the Arms Act. In view of the order of transfer, we instead of directing release of the petitioner direct that he be released on bail for a limited period to enable him to move the Sessions Court for bail for offences punishable under the Arms Act. We direct that the petitioner be released on bail for a period of one month.

Bail will be in the sum of Rs. 2,00000 / - (two lakhs) with one surety for the like amount. The petitioner will have option of furnishing cash security in lieu of furnishing surety. The Registrar of the Sessions Court will accept the

cash security when furnished by the petitioner. We direct that the petitioner shall not leave the country and shall not leave the limits of Greater Bombay without prior permission of the Sessions Court. The passport of the petitioner which has already been handed over to the Investigating Officer will continue with the Officer. As already stated the petitioner will be at liberty to move the Sessions Court for grant of bail in respect of offences under the Arms Act. The application when made will be decided by the Sessions Court on its own merits and in accordance with law.

At this stage Shri Lambay applies for certificate of fitness under Article 134A of the Constitution of India. Having regard to the facts and circumstances of the case and the importance of the questions of law involved, we grant certificate as provided in the aforesaid Article 134A (b). In view of the grant of the certificate and the fact that the petition has been finally disposed of and the further fact that the petitioner has been in custody since April 18, 1993, the prayer for stay of our order is refused. However, we direct that the petitioner shall report to the DCP CID Unit-7 Crawford Market on every day between 11.00 a.m. and 2.00 p. m. for a period of three weeks from the date of his release and thereafter on Monday and Thursday between 11.00 a.m. and 2.00 p.m. during the balance of the period of bail.

Certified copy expedited.

Order Accordingly