# S.K. SHUKLA AND ORS v. STATE OF U.P. AND ORS

- **Citation:** [2005] Supp. 5 S.C.R. 172
- **Court:** Supreme Court of India
- **Decided:** 2005
- **Bench:** B.N. Agrawal, A.K. Mathur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-k-shukla-and-ors-v-state-of-u-p-and-ors-20762
- **Pages:** 30

## Headnote

Criminal Law
Prevention of Terrorism Act,' 2002-Section 3, 4(a)-Genera/ Clauses
C Act-Arms Act, 1959-Sch./ category (1), 3(a)-Possession of arms and
ammunition in a notified area-Notification though communicated on
23. 1.2003, published in Gazette on 29. 1.2003-Held, date of publication
relevant-Further Held publication essential as it affects the rights of publicNotification comes into effect from the date when it was published in the ·
D official gazette.
POTA, 2002-Section 4(b), Section 60-Review Committee-Recovery
of unauthorized possession of explosive substance and lethal weapons capable
of mass destruction-Forensic Lab report showing presence of explosive
'\
substances-Held, mere possession is an offence-Further Held, order of
E Review Committee holding that no offe.nce made out incorrect-Further Held,
powers of Review. Committee limited to see whether prima facie case made
out against accused
F
Words and Phrases- "lethal weapon" "hazardous substance"-
Meaning of
Cr.P.C.-Section 321-Duty of Public Prosecutor-Withdrawal from
prosecution-Held, public prosecutor has to act objectively and need not act
on the dictate of the State Governments.
·
Inspector In-charge, P.S. Kotwali Kunda along with informant and
G other police officials raided the house of 'U' for execution of warrant of
arrest under Section 2/3 of the Gangster Act. They entered through main
gate and went inside the Raj Mahal premises where they found 'K' an
advocate, who told them that he is an advocate for civil cases. They found
'U' present in Raj Mahal where he was standing with on piece of AK 56
H
172
)
S.K. SHUKLAv. STATE OF U.P.
173
rifle with black colour belt hanging on his right shoulder and the weapon A
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 with
36 bullets, he was asked to produce the licence, he could not show anything.
When they entered into his bedroom they Mund ammunition, a square
wooden box yellow colored polythene bag which contained in it about 200 B
gms of explosive chips and in grey colour polythene bag there was some
suspicious black power. In a while cotton bag there was blue colour
polythene which contained nearabout 400 gms suspicious brown colour
powder. The mango gardens of 'U' were raided from two clues. On the
western direction of the Raj Mahal Bhadri, at 200 mtrs from the western
wall at the mango gardens of 'U' they discovered three polythene green C
bags containing guns and other weapons.
An order under POTA was passed against all the three accused
namely, 'R', 'U' and 'A' 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 'U' to cause a massacre D
and/or to create terror after killing some VIPs. In this order it was
mentioned that statement of one witness was recorded wherein he stated
that all the accused have brought AK-47 (56) rifle and given it to 'U'. It
was also alleged that after this statement he was murdered and the father
of the deceased filed an FIR; that they propose to take some action against E
Chief Minister; that the said AK-56 rifle was brought by 'R' in presence
of' A' and was given to 'U'. On the basis of this, State Government granted
permission to launch prosecution under Section 50 of the POT A Act to
prosecute the accused persons under Sections 3(2), 3(3), 3(7) and 4 of
POTA. After this order was passed by the State Government against the
accused persons political events took a turn. A new Government came in F
power. This new Government revoked the order and withdrew the
prosecutor. This order was challenged by the petitioner in the Writ
Petition.
The accused also filed a review petition under Section 60 of POT A
before the Review Committee appointed under the POT A Act and a G
petition before the Central Government. The Review Committee reviewed
the matter and held that since there is no case

## Text

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A
S.K. SHUKLA AND ORS.
v.
STATE OF U.P. AND ORS ..
NOVEMBER I 0, 2005
B
[B.N. AGRAWAL AND A.K. MATHUR, JJ.]
Criminal Law
Prevention of Terrorism Act,' 2002-Section 3, 4(a)-Genera/ Clauses
C Act-Arms Act, 1959-Sch./ category (1), 3(a)-Possession of arms and
ammunition in a notified area-Notification though communicated on
23. 1.2003, published in Gazette on 29. 1.2003-Held, date of publication
relevant-Further Held publication essential as it affects the rights of publicNotification comes into effect from the date when it was published in the ·
D official gazette.
POTA, 2002-Section 4(b), Section 60-Review Committee-Recovery
of unauthorized possession of explosive substance and lethal weapons capable
of mass destruction-Forensic Lab report showing presence of explosive
'\
substances-Held, mere possession is an offence-Further Held, order of
E Review Committee holding that no offe.nce made out incorrect-Further Held,
powers of Review. Committee limited to see whether prima facie case made
out against accused
F
Words and Phrases- "lethal weapon" "hazardous substance"-
Meaning of
Cr.P.C.-Section 321-Duty of Public Prosecutor-Withdrawal from
prosecution-Held, public prosecutor has to act objectively and need not act
on the dictate of the State Governments.
·
Inspector In-charge, P.S. Kotwali Kunda along with informant and
G other police officials raided the house of 'U' for execution of warrant of
arrest under Section 2/3 of the Gangster Act. They entered through main
gate and went inside the Raj Mahal premises where they found 'K' an
advocate, who told them that he is an advocate for civil cases. They found
'U' present in Raj Mahal where he was standing with on piece of AK 56
H
172
)
S.K. SHUKLAv. STATE OF U.P.
173
rifle with black colour belt hanging on his right shoulder and the weapon A
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 with
36 bullets, he was asked to produce the licence, he could not show anything.
When they entered into his bedroom they Mund ammunition, a square
wooden box yellow colored polythene bag which contained in it about 200 B
gms of explosive chips and in grey colour polythene bag there was some
suspicious black power. In a while cotton bag there was blue colour
polythene which contained nearabout 400 gms suspicious brown colour
powder. The mango gardens of 'U' were raided from two clues. On the
western direction of the Raj Mahal Bhadri, at 200 mtrs from the western
wall at the mango gardens of 'U' they discovered three polythene green C
bags containing guns and other weapons.
An order under POTA was passed against all the three accused
namely, 'R', 'U' and 'A' 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 'U' to cause a massacre D
and/or to create terror after killing some VIPs. In this order it was
mentioned that statement of one witness was recorded wherein he stated
that all the accused have brought AK-47 (56) rifle and given it to 'U'. It
was also alleged that after this statement he was murdered and the father
of the deceased filed an FIR; that they propose to take some action against E
Chief Minister; that the said AK-56 rifle was brought by 'R' in presence
of' A' and was given to 'U'. On the basis of this, State Government granted
permission to launch prosecution under Section 50 of the POT A Act to
prosecute the accused persons under Sections 3(2), 3(3), 3(7) and 4 of
POTA. After this order was passed by the State Government against the
accused persons political events took a turn. A new Government came in F
power. This new Government revoked the order and withdrew the
prosecutor. This order was challenged by the petitioner in the Writ
Petition.
The accused also filed a review petition under Section 60 of POT A
before the Review Committee appointed under the POT A Act and a G
petition before the Central Government. The Review Committee reviewed
the matter and held that since there is no case against the applicants under
the POT A and no prima facie case is found under Sections 3 and 4 of the
POT A Act, there is no basis for proceeding against accused under POT A
and the State of U.P. was directed to release all the three applicants. Before H
174
SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.
A this order of the Review Committee the State Government has already
passed the order for withdrawing the cases against all the accused under
the POT A Act by an order.
Petitioner contended in the petitions, that in fact the Review
Committee did not appreciate the scope of Section 4 of the Act properly;
B 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 Sections 4(b) as required under Section 4(a) of the Act and that
C 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; that
this aspect seems to have been completely missed by the Review
Committee; that the Review Committee only concentrated with regard to
the question of Section 4(a), but did not examine the matter with reference
D to Sections 4(b) of the Act; that the hazardous explosive substances
recovered from the house cannot be dismissed as an explosive of low
intensity; that the explosive substances recovered were sent for Forensic
Science Laboratory and the report has observed presence of explosive
substances; that the potentiality of creating mass destruc~ion by a weapon
E like AK-56 is to be noted and that AK-56 is, in fact, the improved version
of AK-47.
F
G
The State supported the order of the Review Committee.
Respondent-Accused contended that the order passed by the Review
Committee is correct and it has not committed any irregularity or
illegality; that the raid in the house of 'R', 'U' and 'A' were politically
motivated as these persons did not support the Government of Mayawati,
the raid was con~ucted and POTA cases were launched against them; that
as per the finding of the bomb demolishing squad it is of low intensity and
cannot fall in the category of hazardous substance.
Allowing the Writ Petitions, Appeals and Transfer Petition, the
Court
HELD: 1. Section 4(b) of POTA talks of unauthorized possession of
bombs, dynamites, hazardous explosive substances or other lethal weapons
or poisonous or noxious gases or other chemicals or by any other
H substances of a hazardous nature capable of mass destruction whether
S.K. SHUKLAv. STATEOFU.P.
175
•·
notified or not notified. Therefore, the possession of bombs, dynamite or A
hazardous explosive substance or lethal weapons in an unauthorized
manner is punishable in itself and need not be in notified area. Therefore,
under Section 4(a) and (b), the possession of the arms mentioned in clause
(a), unauthorized possession thereof in notified area is prohibited whereas
under Section 4(b) any bomb, dynamite, hazardous explosive or lethal B
weapon capable of a mass destruction is punishable irrespective of the fact
that the area is notified or not 1totified. The qualification of the notified
area is not required in Section 4(b). (190-D-FI
2. After close scrutiny of the records of the Government Secretariat's
files as well as original registers of the Government Press, the Court is of c
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 at 5.30 p.m. 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 D
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 district magistrates. Therefore,
it became effective from the date of its publication. Normally under the E
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 that the possession of certain kinds of
arms in the notified area is prohibited, therefore, it would come into effect F
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 was conducted, this finding of the POT A
Review Committee is correct. As a result of this finding the charge under G
Section 4(a) cannot be sustained. (191-D-H; 192-A-B(
3. 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 H
"'
176
SUPREME COURT REPORTS [2005) SUPP. S S.C.R.
A is whether this substance is hazardoμs in nature or not. The very fact of
keeping such huge quantity of explosive in house is on the face of it
hazardous and it is not kept normally by a person unless he deals in
explosives with authorized licence for that purpose. The possession of such
explosive without any authorized licence is a serious matter. This explosive
B 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 'U' 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
C 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 to
by the Review committee. [192-H; 193-A-C)
D
4. The potentiality of AK-56 is capable of causing mass destruction.
It fires about 600 rounds per minute, 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.
E It is a lethal weapon capable of mass destruction and unauthorized
possession thereof is itself punishable. This aspect has also not been
adverted to by the Review Committee. [196-H; 197-A-BI
5. The Review committee only directed that an unauthorized
possession of the weapons which have been specified in columns 2 and 3
p 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). It the weapons falls in the category of Section 4(b) also under the
head 'lethal weapon', then irrespective of the fact that it falls in category
G (a) will not be excluded from category of Section 4(b). The Court 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. It the weapon
which is specified in clause (a) is equally covered under clause (b) under
the heading of 'lethal weaponr, then it would not mean that it shall stand
H excluded from Section 4(b). The purposes for which this Act was enacted
L,
S.K. SHUKLAv. STATE OF U.P.
177
have to be kept in view i.e. prevention of the terrorists activities and A
p~ovisions of Section 4(a) and (b) cannot be interpreted to be exclusive of
each other. It 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 B
not a hazardous or capable of mass destruction b.ecause of its low intensity.
[197-8, El
'
6. The Review Committee has also entered into the merit of the
matter that accused persons cannot be connected with the recovery of these
catch of arms. The role of the Review committee is very limited and the c
Review committee has to see a primafacie 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 Section 60(4) is very limited and it has
only to see whether there is a prime facie case for proceeding against the
accused under the Act or not. The Review Committee has travelled beyond D
its scope, the sufficiency of evidence cannot be gone into be 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 prim a facie case connects the accused on the basis of the
material with the prosecution then it is not for the Review Committee to E
dilate on that as if they are trying the cases under the Act.
(197-F, H; 198-AI
7. 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 F
mentioned above, it cannot proceed now. But it can proceed so far as under
Section 3(3) and Section 4(b) of the Act is concerned along with Arms Act
and Explosives Act. The order of the Review Committee is set aside and
the respondents can be prosecuted under Section 3(3) and Section 4(b) of
the Act and other provisions of the Explosives and Arms Act. (198-C, DI
G
8. The order passed by the Government 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 State Government
{
and the application moved by the special public prosecutor before the
Special Judge at Kanpur, both are rejected. (199-B, q
H
178
SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.
A
9. 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
and officer of the Court. At the same time court is also not bound by that.
The courts are also free to ass~ss whether the primafacie case is made or
not. The court, if satisfied, can also reject the prayer. However in the
B present. case there is a prima facie case to proceed against the accused
persons under Section 4(b) of the Act arid other provisions of the
., l
~·
Explosives or Arms Act, therefore, the sanction granted by the
Government and application moved by public prosecutor for withdrawal
of the cases cannot be sustained. Writ Petitions are allowed and the order
of the State Government withdrawing the case against the accused persons
C is quashed, likewise direction to the public prosecutor withdrawing the
cases from the Court. [200-A, CJ
Sheonandan Paswan v. State of Bihar and Ors., [1983) l SCC 438,
referred to.
D
10. In the interest of justice both these cases be transferred to any
other court where, in a proper atmosphere, the matter can be death with
fairy. Thus criminal case No. 3/2003 in crime case No. 10/03 under Sections
3 and 4 of POT A Act and case No. 113/2002 and 209/2002 under Section
2/3 of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 be
E transferred to a Special Judge in M.P. (200-C, DI
F
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (CRL) Nos.
132-134 of 2003.
(Under Article 32 of the Constitution of India.)
WITH
S.L.P: (Crl.) No. 1521/2004, T.P.(Crl.) Nos. 82-84/2004 and Crl.A. No.
1511 of 2005.
Sunil K. Jain, Ravi Singhal, S. Borthakur, Manish Kumar and Ansar
G Ahmad Chaudhary for the Petitioners.
H
Shanti Bhushan, Ravi Prakash Mehrotra, R.K. Singh, Garvesh Kabra
and Ms. Savitri Pandey for the Respondent No. I.
P.P. Rao and Vijay Bahadur Singh, C.D. Singh, Gunratan Pandey, Ms.
,, __ :
S.K. SHUKLA"· STATE OF U.P. [A.K. MATHUR, J.]
179
Kiran Suvama, Ms. Hena Rizvi and Dr. Indra Pratap Singh for the Respondent A
Nos. 2-4.
T.S. Doabia, M.S. Doabia, Hemant Sharma, P. Parmeswaran and Ms.
Sushma Suri for Union of India.
Pradeep Misra for the Respondent in Crl.A. No. 151112005.
B
The Judgment of the Court was delivered by
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 POT A 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 imp leaded as a party-respondent.
In SLP (Crl) 5609 of 2004, the petitioner has challenged the order
· passed by the POT A Review Committee dated 30.4.2004 under Section 60
of the Prevention of Terrorism Act, 2002 (15 of 2002) (hereinafter refe~ed
to as 'the POT A'). Leave granted.
c
D
In SLP (Crl) 1521 of 2004, the High Court order dated 24.2.2004 was E
challenged whereby accused Akshay Pratap Singh @ Gopalji was granted
bail in case No.10 of2003, under Section 3/4 of POTA, Police Station Kunda,
District Pratapgarh, U.P. on his furnishing a personal bond for Rs. l ,00,000
with two sureties each in the like amount to the satisfaction of the Special
Judge, designated court, Kanpur.
F
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
G
H
180
SUPREME COURT REPORTS (2005) SUPP. 5 S.C.R.
A 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 POT A Act
by order dated 30.4.2004. Aggrieved this order, the present petition was filed
by the appellant.
B
The prosecution case as disclosed in recovery memo dated 25. l.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
C Special Judge, Allahabad. They entered through main gate and went inside
the Raj Mahal premises where they found Shri Kesri "Mandan, 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
D 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
E 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) I 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
F 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
G ofUday 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/I (iv) another DBBL
H gun number destroyed (v) one rifle (vi) one SSBBL gun No.3_077-1994 (vii)
...
S.K. SHUKLA v. ST ATE OF U.P. (A.K. MATHUR, J.]
181
. one SBBL gun number 12194-B.2 (viii) five pieces of SSBBL guns (ix) two A
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 B
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 POT A 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 C
State Government. All this recovery of anns, 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 Raghuraj Pratap
Singh alias Raja Bhaiyya and Akshay Pratap Singh alias Gopalji have brought D
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 302/34/506/1208 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 E
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 F
Government granted pennission to launch prosecution under Section 50 of
the POT A 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 G
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, H
182
SUPREME COURT REPORTS [20051 SUPP. S S;C.R.
A 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 tum. 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
B 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
C 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 POT A and no prima facie case is found
under Sections 3 and 4 of the POT A 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
D 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
E 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 adtlress ourselves and examine the validity of this order
passed by the Review Committee under Section 60 of the POT A Act, it will
be relevant to review the necessary provisions of the POT A Act. The said
F Act i.e Prevention of Terrorism Act, 2002 was pro~ulgated by the .Parliament
with a view t.o prevent terrorists activities and the matters connected therewith.
The terrorist act has been defmed in Section 2(1)(g) which reads as under:
"2(l)(g) : "Terrorist Act" has the meaning assigned to it in subsectio.n ( l) of Section land the expression "terrorist" shall be construed
G
accordingly;"
Section 3 reads as under:
"3 .(1) Whoever,
H
(a) with intent to threaten the unity, integrity, security 9r sovereignty
\. •'"
S.K. SHUKLA 11. STATE OF U.P. [A.K. MATHUR, J.]
183
of India or to strike terror in the people or any section of the people A
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 B
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 C
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 D
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 dest~uction and commits any act resulting in
loss of human life or grievous*ijury to any person or causes significant E
damage- to any property, eJt; '
1
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.
F
(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:
G
(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 H
184
SUPREME· COURT REPORTS (2005) SUPP. S S.C.R.
A
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
fl~
•
(4) Whoever voluntarily harbours or conceals, or attempts to harbour
B
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
C
harbour or concealment is by the husband or wife of the offender.
D
(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
E
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 tine which may extend
to rupees ten lakh or with both.
(7) Whoever threatens any person who is a witness or any other
F
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."
G
Section 4 reads as under:
H
"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 I to the Arms Rules,
1962, in a notified area.
r
\
S.K. SHUKLA v. STATE OF U.P. (A.K. MATHUR,J.]
185
(b) bombs, dynamite or hazardous explosive substances or other A
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 B
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 th~ 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:
c
"60( l) The Central Government and each State Government shall,
whenever necessary, constitute one or more Review Committees for D
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.
E
F
4 to 7 Inst. by act 4/2004 w.e.f. 27.10.2003
G
( 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.
H
I 86
SUPREME COURT REPO.RTS [2005) SUPP. 5 S.C.R.
A
(5) Any direction issued un.der sub-section (4):
B
c
D
(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) Wher.e any Review Committee constituted under sub-section (I)
is of opinion that there is no primafacie case for proceeding against
the accused and issues directions under sub-s-ection (4), then, the
proceedings pending against the accused shall be deemed to have
been withdrawn from the date of such direction."
E
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
F 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 involved in preparation to a terrorist act can be roped in under the wide
definition of the Terrorist Act. In fact, the sub-section (I) of Section 3 clearly·
G says that whoever with intent to threaten the unity, integrity, security or
sovereignty oflndia 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
H
!
S.K. SHUKLAv. STATEOFU.P. (A.K. MATHUR,J.)
187
to any person or persons or loss of or damage to or destruction of, property A
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 B
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 C
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 (I) or category 3(a) of Schedule I 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 D
mass destructi.on 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 E
that in fact the Review Committee did not appreciate the scope of Section 4
of the Act properly. He submitted that tho.ugh 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) F
of the Act.
Shri Shanti Bhushan, learned senior counsel appearing for the State
supported the order of the Review Committee. Sbri 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 G
notcommitted 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, i 962, the H
188
SUPREME COURT REPORTS [2005) SUPP. S S.C.R.
A 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:
B
SCHEDULE I
(See rule 3)
Category
Arms
CI
D
E
2
(a) Prohibited arms as defined
in Section 2 (I) (i) and such
other arms as the Central
Government,
may,
by
notification in the Official
Gazette, specify to be prohibited
arms.
(b) Semi-automatic fire-arms,
other than those included in
categories I (c) and III (a),
smooth bore guns having barrel
of less than 29" in length.
(c) B~ot action or semi-automatic
rifles of".303" or 7.62 mm. bore
or any other .bore which can
F
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 ;
G
pistols, revolvers or carbines of
any bore which can chamber
.380" or .455" rimmed cartridges
or service 9 mm.