# SANJAYDUTI v. THE STATE THROUGH C.B.I. BOMBAY - **Citation:** [1994] Supp. 3 S.C.R. 263 - **Court:** Supreme Court of India - **Decided:** 1994-09-09 - **Bench:** Am. Ahmadi, J.S. Verma, P.B. Sawant, B.P. Jeevan Reddy, N.P. Singh - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sanjayduti-v-the-state-through-c-b-i-bombay-12356 - **Pages:** 47 ## Headnote Terrorist and Disruptive Activities (Prevention) Act, 1987: A B Section 5--Essential ingredients of and ambit of defence available to C accused-First ingredient-Possession of specified Arms and Ammunition-Held possession means conscious possession and not mere custodj-Second ingredient-Possession should be unauthorised i.e. without the authority of law-Third ingredient-Possession of unauthorised arms and . ammunition should be in a notified area-Essence of third ingredient is that D a presumption arises that the weapons were meant for use in terrorist or disruptive act-Held such a presumption is reason¢le and in consonance with the scheme of the Statute but is rebuttable-The extent of burden of proof on the accused to rebut presumption is lighter burden of proving the great probability--// the accused proves non-existing off acts necessary to prove the third ingredient he cannot be prosecuted under section 5 but has to be dealt E with under Section 12-But where prosecution proves the essential ingredients it has to do nothing more and convictions under Section 5 would follow. Expression 'arms and ammunition'-Held these words are not to be read conjuctively. F Section 2( l)(f)-State Government-Power t<;> declare 'notified area'---Manner of exercise of powe,-/leld, must have relation to curb terrorist and disruptive activities. Section 20(4) (bb) and Proviso-Offence punishable under TADA- G Failure to complete Investigation within the specified period-Right of accused to be released on bai1-Held that right accruing to the accused in such a situation is enforceable only prior to the filing of the challenge and does not remain enforceable on challan being filed-After the filing of ch all an bail has to be considered with reference to the merits of the case. H 263 264 SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R. A Offence under TADA-Extension of time for investigation of offenceRequirement of notice to the accused-Held written notice is not necessary-- Production of accused at the time when prayer for extension of time is considered by cowt is sufficient. B Section 20(8}-TADA offences-Bail in respect of-£onditions for grant of bail-field valid. Interpretation of Statutes. Penal Statutes-Rule of constntction of-TADA Acl-Constntction C made of provision$ should be purposive so as to promote the obje.ct of the Act. The petitioner, one of the several accused persons in the Bombay Blast case is being tried by the Designated Court, Greater Bombay, for several offences including section 5 of the Terrorists and Disruptive AcD tivities (Prevention) Act, 1987. The charge against him was tliat he knowingly and intentionally procured one AK-56 rifle with ammunition for the purposes of committing terrorist acts. The petitioner's case was that his possession of rifle and ammunition was for self defence on account of ·. various threats to the members of his family, unrelated to any terrorist E activity and, therefore, mere unauthorised possession of the weapons and ammunition by him does not constitute an offence under Section 5 and consequently his case should be dealt with only under the Arms Act, 1959. The petitioner's claim to be released on bail was-rejected by the Designated Court against which special leave petitions were filed in this Court. Since certain question involved in these petitions arose in respect of a large F number of persons accused of offences punishable under the Act of 1987, a Division Bench of this Court referred the following questions of law for decisions by a Constitution Bench : 1. The proper construction of Section 5 of the TADA Act indicating G the ingredients of the Offence punishable thereunder and the ambit of the defence available to a persQn accused of that offence;· 2. The proper construction of clause (bb) of sub-section (4) of Section 20 of the TADA Act indicating the nature of right of an accused to be released on bail thereunder, on the default to complete investigation H within the time allowed therein; ## Text _Characters 0–39,910 of 111,817. This is a partial read: ask again with offset=39910 for what follows._ SANJAYDUTI v. THE STATE THROUGH C.B.I. BOMBAY SEPTEMBER 9, 1994 [AM. AHMADI, J.S. VERMA,'P.B. SAWANT, B.P. JEEVAN REDDY AND N.P. SINGH, JJ.] Terrorist and Disruptive Activities (Prevention) Act, 1987: A B Section 5--Essential ingredients of and ambit of defence available to C accused-First ingredient-Possession of specified Arms and Ammunition-Held possession means conscious possession and not mere custodj-Second ingredient-Possession should be unauthorised i.e. without the authority of law-Third ingredient-Possession of unauthorised arms and . ammunition should be in a notified area-Essence of third ingredient is that D a presumption arises that the weapons were meant for use in terrorist or disruptive act-Held such a presumption is reason¢le and in consonance with the scheme of the Statute but is rebuttable-The extent of burden of proof on the accused to rebut presumption is lighter burden of proving the great probability--// the accused proves non-existing off acts necessary to prove the third ingredient he cannot be prosecuted under section 5 but has to be dealt E with under Section 12-But where prosecution proves the essential ingredients it has to do nothing more and convictions under Section 5 would follow. Expression 'arms and ammunition'-Held these words are not to be read conjuctively. F Section 2( l)(f)-State Government-Power t<;> declare 'notified area'---Manner of exercise of powe,-/leld, must have relation to curb terrorist and disruptive activities. Section 20(4) (bb) and Proviso-Offence punishable under TADA- G Failure to complete Investigation within the specified period-Right of accused to be released on bai1-Held that right accruing to the accused in such a situation is enforceable only prior to the filing of the challenge and does not remain enforceable on challan being filed-After the filing of ch all an bail has to be considered with reference to the merits of the case. H 263 264 SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R. A Offence under TADA-Extension of time for investigation of offenceRequirement of notice to the accused-Held written notice is not necessary-- Production of accused at the time when prayer for extension of time is considered by cowt is sufficient. B Section 20(8}-TADA offences-Bail in respect of-£onditions for grant of bail-field valid. Interpretation of Statutes. Penal Statutes-Rule of constntction of-TADA Acl-Constntction C made of provision$ should be purposive so as to promote the obje.ct of the Act. The petitioner, one of the several accused persons in the Bombay Blast case is being tried by the Designated Court, Greater Bombay, for several offences including section 5 of the Terrorists and Disruptive AcD tivities (Prevention) Act, 1987. The charge against him was tliat he knowingly and intentionally procured one AK-56 rifle with ammunition for the purposes of committing terrorist acts. The petitioner's case was that his possession of rifle and ammunition was for self defence on account of ·. various threats to the members of his family, unrelated to any terrorist E activity and, therefore, mere unauthorised possession of the weapons and ammunition by him does not constitute an offence under Section 5 and consequently his case should be dealt with only under the Arms Act, 1959. The petitioner's claim to be released on bail was-rejected by the Designated Court against which special leave petitions were filed in this Court. Since certain question involved in these petitions arose in respect of a large F number of persons accused of offences punishable under the Act of 1987, a Division Bench of this Court referred the following questions of law for decisions by a Constitution Bench : 1. The proper construction of Section 5 of the TADA Act indicating G the ingredients of the Offence punishable thereunder and the ambit of the defence available to a persQn accused of that offence;· 2. The proper construction of clause (bb) of sub-section (4) of Section 20 of the TADA Act indicating the nature of right of an accused to be released on bail thereunder, on the default to complete investigation H within the time allowed therein; and SANJA Y DUTT v. C.B.I. BOMBAY 265 3. The proper construction and ambit of sub-section (8) of Section A 20 of the TADA Act indicating the scope for bail thereunder. For the petitioner it was contended that (1) the unauthorised conscious possession of specified arms and ammunition etc. in a 'notified area' may not necessarily be related to, or associated with, a terrorist or disruptive activity and such an unauthorised possession may be for a different purpose e.g. self-defence. Therefore, the accused must have the opportunity in law of raising such a defence and proving it; (ii) the requirement of the 'notice' to the accused before granting the extension of time for completing the investigation is mere production of the accused before the court when the prayer for extension of time is considered by the Court and not written notice to the accused giving reasons for seeking the extension requiring the accused to show cause against it; and (iii) that the right available to the accused to be released on bail under section 20(4) (bb) is enforceable only upto the filing of the challan and does n9t survive B c for enforcement on the challan being fded; on fding of the challan the D question of bail has to be considered only on merits. On behalf of the respondents it was contended that (i) in view of the greater proneness of a notified area to the commission of terrorist and disruptive activities mere unauthorised possession of the specified arms etc. therein is made a statutory offence of strict liability. Therefore, there E is no right available to the accused being tried for an offence punishable under Section 5 of the TADA Act to prove that the possession was unrelated to terrorist or disruptive activities; (ii) the words 'arms and ammunition' in Section 5 are not to be read conjunctively; (iii) the manner in which the power to declare notified area under section 2(1) (f) is to be exercised by the State Government has to be inferred by reading the enactment as a whole keeping in view its object and so read the State Government's power to notify an area must have relation to curbing terrorist and disruptive activities in the notified area; and (iv) in view of the judgment of this Court in Kartar Singh v. State of Punjab, [1994] 3 SCC F 569, the meaning and scope of sub-section (8) of Section 20 of the TADA G Act is clear and unambiguous and therefore, there is no occasion for a fresh consideration of the matter. Dismissing the petitions, this Court HELD : 1. The ingredients of the offence punishable under Section H SUPREME COURT REPORTS [1994] SUPP. 3 S.C.R. A 5 of the TADA Act are: (i) possession of any of the arms and ammunition specified in columns 2 and 3 of Category I or Category IIl(a) of Schedule I to the Arms Rules, 1962 or bombs, dynamite or other explosive substances; (ii) the possession of such arms should be unauthorised; and (iii) in a notified area. If these ingredients of the offence are proved, then the · B c accused shall, notwithstanding anything contained in any other law for the time being in force, 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 for fine. (287-G] 2. The meaning of the first ingredient of 'possession' of any such arms etc. is not disputed. Even though the word 'possession's is not preceded by any adjective like 'knowingly' yet it is common ground that in the context the word 'possession' must mean possession with the requisite mental element that is, conscious possession and not mere custody without the awareness of the nature of such possession. There is mental element in the concept of possession. Accordingly, the ingredient of 'possession' in SecD tion 5 of TADA Act means conscious possession. This is how the ingredient of possession in similar· context of a statutory offence importing strict liability on account of mere possession of an unauthorised substance has been understood. Thus mere conscious possession of a forbidden substance is sufficient to constitute an offence and the offence created by E Section 5 in a statute like the TADA Act is not extraordinary or conceptually impermissible. Moreover, that is also the position in the general law, with difference only in the prescribed punishment. (290-H, 291-A-B, 298-F] F G Warner v. Metropolitan Police Commissioner, (1969) A.C. 256; Sambasivam v.Public Prosecutor Federation of Malaya, (1950) AC 458 and Louis Beaver v. Her Majesty The Queen, [1957) S.C.R. 531, referred to. 3. The net ingredient is that the possession of such arms etc. should be 'unauthorised'. The unauthorised possession in the context means without the authority of law. (291-C] 4. The significance of the third ingredient i.e. of unauthorised possession of any such arms and ammunition etc. in a notified area is that a statutory presumption arises that the weapon was meant to be used for a t~rrorist or disruptive act. This is so, because of the proneness of the area to terrorists and disruptive activities, the lethal and hazardous nature of H the weapon and its unauthorised possession with this awareness, within a !' SANJA Y DlJIT v. C.B.I. BOMBAY 267 notified area. This statutory presumpti011 .s the essence of the tbrd A ingredient of the offence created by Sectioa. 5 •li ihe TADA Act. [293-D-B] 5. The statutory presumption so read i11to Section 5 is in consonanct! with the scheme of the o,tatute and Section 5 read in the context m•,h~ scheme statutory presumption implicit in it. l urtber, Section 5 is attrack11 only in case of unauthorised possession of sptufled arms and ammunition in a notified area. None of these weaJ>oni. is meant for, or kept, for ordina:·~ use. The statutory presumption is also, therefore, reasonable. [296-D-(;1 6. However, the accused has a right as a part of his defence to pr·.11 t' E the non-existence of a fact essential to constitute an ingredient of lht: C offence under Section 5 of the TADA Act and for that purpose he can rt!but the presumption against him. [290-G] 7. Enactment of Section 21 also supports the view that the statutory presumption arising of commission of an offence under presumption arising of commission of an offence under Section 5, on proof of the D requisite facts, is a rebuttable and not an irrebuttable presumption. The presumption arising of the commission of an offence under Section 3 by virtue of Section 21 is expressly made rebuttable and the accused can even prove the non-existence of a fact essential to constitute an ingredient of the offence under Section 3. On the same principle, the statutory presumpE tion arising of the lesser offence under Section S on proof of the fact of unauthorised possession in a notified area would be rebuttable presumption enabling the accused to prove that the weapon was not meant for use for any terrorist or disruptive act. Where its actual use in addition to the possession has been proved, the presumption is of an offence under Section 3 and burden on the accused is to prove the non-existence of any F fact required for constituting an ingredient of the offence under Section 3. The distinction that an offence under Section 3 can be committed anywhere but that under Section 5 only within a notified area, is also significant. If the presumption arising of an offence under Section 3 by virtue of Section 21 is expressly made rebuttable, there can be no reason why presumption G of the offence under Section 5 would be irrebuttable and not rebuttable. After all the offence under Section 5 is less serious than that under Section 3 of the Act. This construction is also preferable because the statute is penal in nature. [295-E-H, 296-A-C] 8. The construction made of Section 5 of the TADA Act which gives H 268 SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R. A an opportunity to the accused to rebut the presumption arising against ·-, him of the commission of an offence by mere unauthorised possession of any such arms etc. within a notified area is manifest from the Statement ,, of object and Reasons. This is in consonance with the basic principle of :, criminal jurisprudence and the basic rights of an accused generally recogB nised. Court must attribute to the Parliament the legislative intent of not excluding the right of an accused to prove that he is not guilty of the graver offence u~der Section 5 of the TADA Act and therefore, he is entitled to be dealt with under the general law which provides a lesser punishment. But on principle, there is no requirement of reading anything more than the rebuttable presumption into Section 5 of the TADA Act. [302-E-F] ,.. c l \' R. v. Hunt, [1987] All. E.R. 1 and W.D. Manjev v. State of Georgi.a, 73 • ~ L.Ed. 575, referred to •. I 9. It is a settled rule of criminal jurisprudence that the burden on an accused of proving a fact for rebutting a statutory presumption in his D defence is not as heavy as on the prosecution to prove its case beyond reasonable doubt but the lighter burden of proving the greater probability. Thus, the burden on the accused of proving the rebutting the statutory presumption which arises against him under Section 5 of the TADA Act on proof by the prosecution that the accused was in un- ,, , E authorised possession of any of the specified arms and ammunition etc. • within a notified area is of greater probability. [30~-D-E] ., 10. Thus for constituting the offence made punishable under section 5 of the TADA Act, the prosecution has to prove the aforesaid three ingredients. When the prosecution has proved these facts, it has to do F nothing more an conviction under Section 5 of the TADA Act must follow ";:- unless the accused rebuts the statutory presumption by proving that any such arms and ammunitfon etc. was neither used nor was meant to be used for a terrorist or disruptive activity. No further nexus of his unauthorised possession of the same with any specific terrorist or disruptive activity is G required to be proved by the prosecution for proving the offence. under Section 5 of the TADA Act. The nexus is implicit, unless rebutted, from the fact of unauthorised concious possession of any such weapon etc. within a notified area and the inherent lethal and hazardous nature and potential · of the same. [300-F-G] " H Effect of observations of Sahai, Jin Kartar Singh v. State of Punjab, SANJA Y DlJIT v. C.B.I. BOMBAY 269 (1994] 3 sec 569 on the burden of proof of the prosecution, explained. 11. Undoubtedly, the accused can set up a defence of non-existence of a fact which is an ingredient of the offence to be proved by the prosecution. For proving the non-existence. of facts constituting the third ingredient of the offence, the accused would be entitled to rebut the above statutory presumption and prove that his unauthorised possession of any such arms and ammunition etc. was wholly unrelated to any terrorist or disruptive activity and the same was neither used nor available in that area for any such use and it~ ~vailability in a 'notified area' was innocuous. Whatever be the extent of burden on the accused to prove the non-existence of the third ingredient, as a matter of law he has such a right which flows from the basic right of the accused in every prosecution to prove the non-existence of a fact essential to constitute an ingredient of the offence for which he is being tried. If the accused succeeds in proving non-existence A B c of the facts necessary to constitute the third ingredient alone after his unauthorised possession of any such arms and ammunition etc. in a D notified area is proved by the prosecution, then he cannot be convicted under Section 5 of the TADA Act and would be dealt with and punished under the general law. It is obviously to meet situations of this kind that Section 12 was incorporated in the TADA Act. (293-G, 294-A-D] 12. Though Section 2(1)(f) defines 'notified area' to mean such area E as the State Government may, by notification in the Official Gazette, specify yet there is no express indication in the Act of the manner in which the State Government is to exercise this power of issuing the notification. The submission that the State Government's power to notify an area under section 2(l)(f) must have relation to curbing terrorist and disruptive F activities in the notified area is well founded for ptherwise the State Government's power would be unfettered and unguided which would render Section 5 vulnerable. (291-E, 292-C] 13. A specific area is declared to be a notified area by the State Government under Section 2(1)(f) of the TADA Act. This is done with G reference to the· fact that a notified area is treated to be more prone to the commission and escalation of terrorist and disruptive activities. This is the basis for classification of 'a notified area' differently from the nonnotified areas and it has a reasonable nexus with the object of classification. Such activities must, therefore, have a bearing on the constitution of H 270 SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R. A any special offen'ce confined to that area. Declaration of a specified area as a notified area by the State Government is based on its satisfaction, subjective in nature that the area is prone to terrorist and disruptive activities and its escalation. This opinion of the State Government has to be formed necessarily with reference to facts relating to incidents of B c terrorist and disruptive activities, for the prevention of which check on the influx of the specified arms ammunition etc. in that area is the object of enacting Section 5. The existence of the factual basis for declaring a specified area as notified area has to be presumed for the purposes of section 5 for otherwise it would be put to proof in every case. This is the true significance of the third ingredient of the offence under Section 5. [292-H, 293-A-D] 14. The settled rule of construction of penal provisions is, that 'if there is a reasonable interpretation which will avoid the penalty in any particular case, Court must adopt that construction and if there are two reasonable constructions. Court must give the more lenient one:; and i('two D possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty'. [289-D-E] London & North Eastern Railway v. Beniman, [1946) 1 All ER 255 E (BL); Tolaram Relumal andAnr. v. The State of Bombay, [1955] 1SCR158 and State of Madhya Pradesh v. Mis. Azad Bharat Finance Co. and Anr., (1966) Supp. SCR 473, referred to. F Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya and Ors., (1990) 4 SCC 76, relied on. 15. Schedule 1 to the Arms Rules specifies the categories of both arms and ammunition mentioned therein. This is what has led to use of the words 'arms and ammunition' in Section 5 while referring to them as those specified in columns 2 and 3 of Category 1 or category m (a) of G Schedule I. The word 'and' has been used because Schedule I specifies both arms and ammunition in Columns 2 and 3 thereof. The word 'and' instead of 'or' is used in the expression "any arms and ammunition specified. • ." because reference to both is made as specified in the Schedule. For this reason, the words 'arms and ammunition' are not to be read conjunctively. This is further evident from the fact that the disjunctive 'or' is used while H describing other forbidden substances like bombs etc. It means the forbid· SANJAYDUTI v. C.B.I. BOMBAY 271 den substances, the unauthorised possession of any of which in a notified A area is an offence under Section 5, are any of the specified arms or its ammunition or bombs or dynamite or other explosive substances. Unless these words are read disjunctively instead of conjuctively in this manner, the object of prohibiting unauthorised possession of the forbidden arms and ammunition would be easily frustrated by the simple device of one B person carrying the forbidden arms and his accomplice carrying its ammunition so that neither is covered by Section 5 when any one of them carrying both would be so liable. (301-E-H, 302-A-B] Paras Ram v. State of Haryana, (1992) 2 S.C.C. 662, dissented from. c 16. Section 20 of the TADA Act prescribes the modified application of the Code of Criminal Procedure indicated therein. The effect of sub-sec- · tion (4) of section 20 is to apply Section 167 of the Code of Criminal Procedure in relation to a case involving an offence punishable under the TADA Act subject to the modifications indicated therein. One of the modifications made in Section 167 of the Code by Section 20(4) of the TADA D Act is to require the investigation in any offence under the TADA Act to be completed within a period of 180 days with the further proviso that the Designated Court is empowered to extend that period upto one year if it is satisfied that it is not possible to complete the investigation within the said period of 180 days, on the report of the public prosecutor iqdicating the E progress of the investigation and the specific reasons for the detention of the accused beyond the said period of 180 days. This gives rise to the right of the accused to be released on bail on expiry of the said period of 180 days or the extended period on default to complete the investigation within the time allowed. [303-D·F] 17. The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4) (bb) of the TADA Act read with Section F 167 (2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, is a right which ensures to and is enforceable by the accused only from the time of default the filing of the challan and it does not survive or remain enforce- G able on the challan being filed. If the accused applies from bail under this provision on expiry of the period of 180 days or the extend period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. [309-A-C] H 272 SUPREME COURT REPORTS [1994] SUPP .. 3 S.C.R. A 18. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed is governed from the time of filing of the challan only by the provisions · relating to the grant of bail applicable at that stage. Once the challan has been filed , the question of grant of bail has to be considered and decided B only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accmed to the accused but it remained unenforced till the filing of the Challan, then there is not question of its enforcement thereafter C since it is extinguished the moment challan is filed because Section 167 Cr. P.C.. ceases to apply. It is obvious that no bail can be given even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. It is settled by Constitution D Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, bas to be dismissed, if on the date of return of the mle, the custody or detention is on the basis of a valid order. [306-D-H, 307-A-B] Hitendra Vishnu Thakur and Ors. v. State of Mahrashtra and Ors., E (1994] 4 S.C.C. 602, explained. F Naranjan Singh Nathawan v. The State of Punjab, (1952) S.C.R. 395; Ram Narayan Singh v. The State of Delhi and Ors., (1953] S.C.R.652 and A.K Gopalan v. The Government of India, (1966) 2 S.C.R. 427, referred to. 19. Section 20(4)(bb) of the TADA Act only requires production, of the accused before the court in accordance with Section 167(1) of the Code of Criminal Procedure and this is how the requirement of notice to the accused before granting extension beyond the prescribed period of 180 days in accordance with the further proviso to clause (bb) of sub-section G (4) of Section 20 of the TADA Act has to be understood in the judgment of this Court in Hitendra Vishnu Thakur. The requirement of such notice to the accused before granting the extension for completing the investigation is not a written notice to the accused giving reasons therein. Production of the accused at that time in the Court informing him that the H question of extension of the period for completing the investigation is being SANJAY DUTI v. C.B.I. BOMBAY [VERMA,J.] 273 considered, is alone sufficient for the purpose. (308-F-HJ 20. In view of the decision of the Constitution Bench in Kartar Singh on the meaning and scope of sub-section (8) of Section 20 of the TADA Act, the question as to proper construction and ambit of sub-section (8) A of Section 20 does not require any further elucidation by this Court. The pronouncement of the Constitution Bench is clear and binding on this B Court. (309-D] Kartar Singh v. State of Punjab, [1994) 3 S.C.C. 569, relied on. CRIMINAL APPELLATE JURISDICTION: Special Leave petition (CRL.) Nos. 1834-35 of 1994. From the Judgment and Order dated 4.7.94 of the Designated Court Bombay in M.A. No. 118/94 B.A. No. 31/94 B.B. C. No.l/93. c Kapil Sibal, C.B. Wadhwa, AK.Sahu, Manmohan, Ms. Rashmi D Kathapalia and Ms. Lata Krishnamurti for the Petitioner. K.T.S. Tulsi, Additional Solicitor General and N. Natarajan, Dr. V.K. Agarwal, Additional Secretary, P. Parmeswaran and Krishan Mahajan for the Respondent. The Judgment of the Court was delivered by J.S. VERMA, J. By an order dated 18.8.1994 made in these special leave petitions by the Division Bench (B.P. Jeevan Reddy and N.P. Singh, JJ.), these matters relating to grant of bail to the petitioner, an accused in E the Bombay blasts' case being tried by the Designated Court for Greater F Bombay, have been referred for decision by a Constitution Bench since certain questions involved in these special leave petitions arise in respect of a large number of persons accused of offences punishable under the Terrorist and Disruptive Activities (Prevention) Act. 1987 (hereinafter referred t(I) as 'the TADA Act'). This is }).ow these matters have come up for decision by this Bench. At the commencement of hearing before us, we G had indicated that this Bench would decide only the questions of law involved in the case as indicated in the order of reference and then send back these diatters to the appropriate Division Bench for decision on merits in accordance with the answers we give to the questions of law. Accordingly, only. those facts which are material for appreciating the H 274 SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R. A questions of law which are being decided by us require mention in this order. B c D The questions of law indicated in the said order of reference, to be decided by us, are three, namely - (1) The proper construction of Section 5 of the TADA Act indicating the ingredients of the offence punishable thereunder and the ambit of the defence available to a person accused of that offence; (2) The proper construction of clause (bb) of sub- section ( 4) of Section 20 of the TADA Act indicating the nature of right of an accused to be released on bail thereunder, on the default to complete investigation within the time allowed therein; and (3) The proper construction and ambit of sub-section (8) of Section 20 of the TADA Act indicating the scope for bail thereunder. The only material facts for answering the above question are these: The petitioner is one of the several accused persons in case No. 1 of 1993 being trial in the Designated Court for Greater Bombay in connection with the bomb blasts which took place in Bombay on 12.3.1993 killing a large E number of person and causing huge destruction of property. The case of the prosecution against the petitioner, set out in the charge-sheet, is that on 16.1.1993 he "knowingly and intentionally procured from accused Anees Ibrahim Kaskar through Sameer Ahmad Hingora, Hanif Kadawala, Baba @ Ibrahim Musa Chouhan, Abu Salem Abdul, Qayoob Ansari and ManF zoor Ahmed Sayed Ahmed 3 AK-56 rifles, 25 hand grenades and one 9 mm. Pistol and cartridges for the purpose of committing terrorist acts. By keeping the AK-56 rifles, hand grenades, pistol and cartridges' in his possession willingly, accused Sanjay Dutt facilitated these objectives. Some parts of the rifle, the 9 mm. pistol and 53 rounds of live cartridges were G recovered during the course of investigation. Accused Yusuf Mohsin Nullwaal, Kesri Bapuji Adenia, Rusi Framrose Mulla, Ajay Yashprakash Marwah, caused wilful destruction of evidence namely 1 AK-56 rifle, one 9 mm. pistol, and cartridges by deliberately removing them from the house of accused Sanjay Dutt, at his instance, with the intention to protect the offender i.e. Sanjay Dutt from legal consequences ~d therefore, they are H also guilty of the offence u/s 201 IPC". T SANJAYDUTf v. C.B.I.BOMBAY[VERMA,J.] 275 The charge against the petitioner is of several offence including those A under the TADA Act, of which Section 5 thereof is one, Reliance is placed by the prosecution on the testimony of certain witnesses, some incriminating circumstances and an unretracted confession by the petitioner himself. In the said confession, which has remained unretracted, the petitioner admitted receiving three AK-56 rifles on 16.1.1993 along with ammunition B from the aforesaid persons adding that two days later he returned two of them but retained only one for the purpose of self-defence. The petitioner further stated that in view of the tense communal situation as a result of the incident at Ayodhya on 5.12.1992 and the serious threats given to petitioner's father Sunil D'ltta then a Member of Parliament, for his active role in steps taken to restore communal harmony and serious threats C to petitioners' sisters also, all of whom were residing together, the petitioner agreed to obtain and keep one AK-56 rifle with ammunition for protection of him family without the knowledge of his father. In short, the petitioner's statement is that his possession of one AK-56 rifle with ammunition was in these circumstances for self defence on account of the .D serious threats to the members of his family, unrelated to any terrorist activity and, therefore, mere unauthorised possession of the weapons and ammunition by him in these circumstances cannot constitute an offence under Section 5 of the TADA Act. and has to be dealt with only under the Arms Act, 1959. The petitioner claims to be released on bail on this basis and places reliance on certain other facts pertaining to his conduct to E support his assertion that his action in unconnected with any terrorist or disruptive activity. It is unnecessary here to refer to any other facts which may be material only for the purpose of considering the case of petitioner on the merits for grant of bail. The Designated C011rt has refused bail to the petitioner. These special leave petitions are against the order of the F Designated Court, in substance, for grant of bail to the petitioner. On these facts, the aforesaid questions of law arise for determination by us. These questions arise in a large number of cases of persons accused of offences punishable under the TADA Act and detained for that reason. It is the general importance of these questions, numerous cases in which G they arise and the frequency of their occurrence during the life of the TADA Act which has oCC