R.R. Gopal @ Nakkeeran Gopal vs State

P. Shanmugam, J.—This is an appeal preferred u/s 34(4) of the Prevention Of Terrorism Act, 2002 and Section 439 of the Code of

Criminal Procedure as against the order refusing to grant bail to the appellant u/s 49(7) of the said Act and to release the appellant on bail in Crime

No. 1 of 2003 on the file of the Deputy Superintendent of Police, CB CID Head Quarters, Chennai-1.

The appellant/petitioner is said to have been arrested in Crime No. 414 of 2001 of Sathymangalam Police Station on 11.4.2003. Based on the

alleged search and recovery of arms found in his possession, a case was registered against him in Crime No. 1 of 2003 on the file of the Inspector

of Police, CB CID Head Quarters for an offence u/s 25(1B)(a) of the Arms Act, 1959 and Section 124(A) of the Indian Penal Code. Thereafter,

on 16.4.2003, the provisions of Section 4(a) of POTA were invoked and the crime was altered into one under the Prevention Of Terrorism Act in

Crime No. 1 of 2003 on the file of the respondent. The petitioner is on remand.

Petitioner filed Criminal Miscellaneous Petition No. 52 of 2003 in F.I.R. (POTA) No. 5 of 2003 before the Special Court constituted under the

Prevention of Terrorism Act, 2002, Poonamallee u/s 49 of the said Act for an order of bail. The learned Judge, by his order dated 4.8.2003,

dismissed the application and the present appeal is against this order and for an order to release him on bail.

Mr. N. Natarajan, learned senior counsel appearing on behalf of the appellant submitted that there are grounds for believing that the appellant is

not guilty of having committed the said offence and therefore, the appellant, who is already in jail for 180 days, is entitled for grant of bail.

According to him, the appellant was not in possession of any arms or ammunitions specified so as to be held guilty under the Terrorism Act. The

documents furnished to him would clearly establish that he could not have been in possession of the specified arms and ammunitions. Secondly, it is

submitted that there could not have been a recovery based on his voluntary statement said to have been taken on 25.4.2003 in the light of his

categorical statements and objections. According to the learned senior counsel, it is highly improbable to accept the recoveries said to have been

made only to incarcerate him on some pretext or the other. He, therefore, prays that the appellant has made out a prima facie case for believing

that he is not guilty of having committed the offence charged against him and hence be released on bail.

Learned Advocate General, the Special Public Prosecutor as well as the Public Prosecutor also made their submissions. According to them, the

burden is on the appellant to prove that he is not guilty of the offence and that it is premature to go into the question of discrepancy as to the arms

recovered and the statements obtained. It is submitted that the appellant, who has obtained a stay before the Supreme Court, is the cause for the

prosecution in not filing the final report and proceeding with the trial and therefore, he cannot take advantage of it to seek for an order of bail. It is

also submitted that the arms or ammunitions specified under the Arms Rules have been recovered in a notified area, which would be sufficient to

hold that the appellant is guilty of having indulged in terrorist activities. According to them, the submission that there was no voluntary statement is a

matter of evidence and the Court cannot act on the self-serving hypothesis of the appellant. It is submitted that the appellant had failed to establish

that he is not guilty of committing the offence. According to them, the recovery of arms specified u/s 4 of POTA is sufficient to hold that the

appellant is guilty of the offence and if there is any discrepancy in the type of arms recovered, it is for the trial court to go into that question and the

said question cannot be gone into at this stage and therefore, requested the Court to dismiss the appeal and reject the relief of bail.

We have heard the counsel and considered the matter carefully.

The Prevention of Terrorism Act, 2002 is an Act enacted for the purpose of preventing and dealing with terrorist activities. A ''terrorist act'' has

been defined as commission of an act set out u/s 3(1) of the Act. Section 4 of the Act says that a person shall be held guilty of a terrorist act if he is

in unauthorized possession of any arms or ammunitions specified in a notified area. There is a presumption as to the offence u/s 3 of the Act on

recovery and as per Section 49(7) of the Act, a person accused of the offence cannot be released on bail until the court is satisfied that there are

grounds for believing that he is not guilty of having committed such an offence. From the above, it is clear that stringent provisions are made under

the Act to deal with terrorist activities. The general rule of criminal law is that the intent and the act must both concur in order to constitute a crime

(actus non facit reum, nisi mens sit rea). The POTA is so framed as to make an act criminal, whether there has been any intention or otherwise to

do a wrong or not. The ordinary criminal law presumes innocence of the accused until the guilt is proved beyond doubt. The onus normally lies on

the prosecution to prove the ingredients in order to establish the charge. Whereas, under the present Act, presumption of an offence is established

if arms are recovered from the possession of the accused in a notified area and there is reason to believe that such arms were used in commission

of such offence. Therefore, it is necessary that these provisions are to be strictly construed.

A Constitution Bench of the Supreme Court, in Sanjay Dutt vs. State, C.B.I., Bombay-2 1994 S.C.C. 1433, while dealing with a similar

provision, viz. Section 5 Terrorist And Disruptive Activities (Prevention) Act, 1997, has held that the significance of unauthorized possession of

any arms and ammunitions, etc. in a notified area is that a statutory presumption arises that the weapon was meant to be used for a terrorist or

disruptive act. This is so because of the proneness of the area to terrorist and disruptive acts, the lethal and hazardous nature of the weapon and its

unauthorized possession with this awareness within a notified area. Their lordships, in paragraph 26 of the judgment, have observed as follows :-

For constituting the offence made punishable u/s 5 of the TADA, the prosecution has to prove the aforesaid three ingredients. Once the

prosecution has proved the ''unauthorized, conscious possession'' of any of the specified arms and ammunitions, etc. within a notified area by the

accused, conviction follows on the strength of the presumption unless the accused proves the non-existence of a fact essential to constitute any of

the ingredients of the offence. Undoubtedly, the accused can set up a defence of non-existence of a fact which is an ingredient of an offence to be

proved by the prosecution.

Therefore, it is open to the accused to prove that he is not in unauthorized possession of any arms or ammunitions.

In Narcotics Control Bureau Vs. Kishan Lal and others, , the Supreme Court held that the power of the High Court to grant bail u/s 439,

Cr.P.C. is subject to the limitations contained in the Special Act. Section 37 of the N.D.P.S. Act contained similar wordings that there must be

reasonable grounds for believing that the accused is not guilty of such an offence. In Usman Bhai Dawood Bhai Memmon & Others vs. State of

Gujarat AIR 1988 S.C. 1922, while considering the grant of bail by a Designated Court, their lordships of the Supreme Court have held that they

should not act mechanically, but should examine every case carefully since before granting bail, the Court is called upon to satisfy itself that there

are reasonable grounds for believing that the accused is innocent of the offence and that he is not likely to commit any offence while on bail.

A Division Bench of this Court, in Pazha Nedumaran & 4 Others vs. State represented by the Deputy Superintendent of Police & Others

2003 (2) C.T.C. 210, while considering Section 49 of POTA, held that the language suggests that where the Public Prosecutor opposes the bail

application, such accused should not be released on bail until the Court is satisfied that there are grounds for believing that he is innocent. The

Division Bench has observed as follows :-

The plain meaning would be that instead of showing that there is no prima facie case against him for his conviction, the accused would have to

show that there is prima facie case for his acquittal.

The appellant in this case was intimated of his arrest by the Inspector of Police through a Telegram dated 12.4.2003 addressed to the

Manager, Nakkeeran Magazine to the effect that the appellant was arrested near the Nakkeeran Office on 11.4.2003 at about 2040 hours in

connection with Sathyamangalam Police Station C.T. No. 414 of 2001 u/s. Man Missing (A) to 147 148, 302 and 201, I.P.C. read with Section

25(1-B)(a) of the Arms Act by SIC CICID Police and was taken to CICID Office. In the telegram, it is further stated, which is relevant for our

purpose, as follows :-

On search, since it was found that he was in possession of an unlicensed revolver with ammunition and a pamphlet in support of TNLA, a case in

CICID HQRS CR. No. 1/2003 u/s 25(1-B)(A) Arms Act, 1959 and 124-A IPC was registered and also he was arrested in this case.

In the First Information Report dated 12.4.2003 filed by the Inspector of Police, CB CID Head Quarters, Chennai before the Sessions Court for

Exclusive Trial of Bomb Blast Cases & POTA Cases, Chennai at Poonamallee, it is stated as follows:-

As soon as he was brought, a search was made and it was found out that R.R. Gopal was found in possession of an unlicensed Country Made

Pistol with ammunition and a Pamphlet supporting TNLA, a banned Organization, in a black handbag. Hence, the following properties, viz. 1)

Unlicensed Country Made Pistol with Ammunition and 2) Pamphlet supporting TNLA and ID Card and other visiting cards, etc. from his

possession were seized.

The Deputy Superintendent of Police, on 12.4.2003, in his alteration report submitted before the Additional Chief Metropolitan Magistrate,

Egmore, has stated that the accused was arrested in connection with Sathyamangalam Police Station Crime No. 414 of 2001 on 11.4.2003 and

when his person was searched, a country made Gun with two live muskets of 410 and a booklet in support of TNLA were seized under a cover of

mahazar.

From the above, it could be seen that three different versions are given by the prosecution as to the type of weapon recovered from the

appellant. They are :

(a) An unlicensed Revolver with ammunition and a pamphlet;

(b) An unlicensed country made Pistol with ammunition and a pamphlet; and

(c) A country made Gun along with two live ammunition of 410 muskets and a booklet in support of TNLA.

It is obvious that all of these three versions cannot be correct. A revolver is different from a pistol. Similarly, a gun will be different from a revolver

and a pistol. Besides, an unlicensed revolver is different from an unlicensed country made pistol. Above all, both the revolver and the pistol would

be entirely different from a country made gun with two live ammunition of 410 muskets. Here again, the 410 muskets could not go along with the

gun, pistol or a revolver. When the possession of an unauthorized arm itself is an offence, the prosecution cannot hold a person guilty of a terrorist

act without proving the possession of a particular arm or ammunition. The documents furnished by the prosecution themselves are contradicting. In

other words, they are prevaricating with reference to the nature of the arms recovered. The authorities who have dealt with the matter are not

ordinary officers, but they are in the ranks of an Inspector of Police and a Deputy Superintendent of Police. There cannot be any difference of

opinion that police officers, especially those in the above ranks dealing with offences of this nature, are fully aware of the nature and type of

weapon recovered. The Court cannot permit a mistake of this nature at the hands of police officials. Similarly, the omission to mention about the

two live ammunition of 410 muskets and the mentioning of the booklet instead of pamphlet in a black handbag cannot be a mere mistake.

In the light of these contradictions, we find prima facie that the weapon could not have been in the possession of the appellant or recovered

from him. Therefore, no legal presumption can be drawn so as to hold that the prosecution has proved the offence as defined u/s 3 of the Indian

Evidence Act. The term ''proved'' as defined u/s 3 of the Indian Evidence Act means that after considering the matter before it, when the Court

either believes a particular fact to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular

case, to act upon a supposition that it exists. Similarly, a fact is said to be ''disproved'' when after considering the matters before it, the Court either

believes that it does not exist or considers its existence so improbable that a prudent man ought, under the circumstances of the particular case, to

act upon a supposition that it exists. Applying the above principles, in this case, we are of the view that prima facie, the non-existence of the

recovery is so probable that we can act upon the supposition that the recovery does not exist.

Insofar as the recovery u/s 25 of the Act dated 25.4.2003 is concerned, it is seen that on 21.4.2003, when the CB CID sought for police

custody of the appellant, he has categorically stated before the learned Judge that he was not willing to go to the custody of police since the very

same officer had already enquired him ten days earlier and that he had already given all the information to him. The appellant further stated that the

present case was being foisted and that there was nothing to inform the police. According to him, there was every possibility that the police would

torture him, get his signature and in the name of raid, they will be able to show recovery and he had already intimated the High Court that his

security was in danger. In his elaborate statement before the learned Judge dated 21.4.2003, the appellant has stated that the police have planned

to take his custody in any one of the cases and to record recovery of crores of rupees and some arms from him in some place of the forest or

outside. On 22.4.2003, he had made a statement before the Court that if his custody was granted with the police, they will plant incriminating

documents and articles in his printing press, his office and also the residence of his relatives and his employees and record recovery of the same

through him. In the light of these categorical objections setting out in detail, the attitude of the police towards the appellant and the possibility of

their planting a recovery and foisting a case against him, it is highly improbable that the appellant would have made a voluntary statement confessing

the receipt of arms, ammunitions and explosives and thereupon led the police to the places for discovery of the incriminating materials and that a

recovery would have been made on the basis of such voluntary statement on 25.4.2003. In this context also, we have to hold that it is very difficult

to believe the same as probable and that under the circumstances of the case, the appellant would have made such a statement and the recovery

made on that basis.

It is the specific case of the appellant right through that the respondent is acting with an ulterior motive. A learned single Judge of this Court, in

his order in Crl. O.P. No. 24771 of 2001 dated 10.12.2001 in reference to an application filed by the appellant u/s 438, C.R.P. for an

anticipatory bail in Crime No. 90 of 2000, has found as follows :-

In the facts and circumstances revealed from the pleadings and the arguments by the parties in the case in hand, there is absolutely no sign of the

designs of the respondents in the scheme of the events revealed, but since the apprehension of the petitioner is alarming and since regarding the

said apprehension expressed on the part of the petitioner the prosecution is silent, this Court is of the firm view that the petitioner''s apprehension of

arrest at the hands of the respondents, under some pretext or other, is quite reasonable and thus becoming entitled to be afforded with the

protection of Section 438 of Cr.P.C.

Similarly, another learned single Judge of this Court, in his order in Crl. O.P. Nos.4254 and 4255 of 2003 dated 5.3.2003 for an anticipatory bail

in Crime Nos.676 and 1500 of 1998, has held as follows :-

The learned senior counsel for the petitioner contended that the petitioner has shown malafides on the part of the respondent by placing all

materials and the petitioner has also shown that the accusation appears to stem from ulterior motive to humiliate the petitioner by having him

arrested and hence he is entitled for anticipatory bail in the cases as per the decision of the Apex Court in Shri Gurbaksh Singh Sibbia and Others

Vs. State of Punjab, . The allegation of malafides cannot be gone into in detail, since the cases are under further investigation. Still, it is true that the

petitioner has placed enough materials before the Court to show that there was friction between the petitioner and the police machinery for a long

time."" (emphasis addded)

In the light of these observations coupled with the reasons set out in paragraphs 5 and 6 of the Memorandum of Grounds, the submissions made

on behalf of the appellant cannot be said to be without any substance.

It has to be pointed out that though the Sessions Court referred to the submissions made on behalf of the petitioner/appellant, the Court was of

the view that it is premature to consider the case of the petitioner/appellant for bail. Sub-section (7) of Section 49 of the Act enables the Court to

order release of a person on bail on being satisfied that there are grounds for believing that he is not guilty of committing such offence. In this case,

we have sufficient materials on the basis of admitted documents for believing prima facie that the appellant might not have had the possession of the

arms said to have been recovered from him in the light of the clear contradictions and the dispute as to the alleged recovery. Hence, we find no

merit in the submission that the Court must wait for the trial. If really the recovery of a particular weapon was made, there could not have been a

discrepancy of such a nature, which is vital and crucial.

For all the above reasons, we hold that there are prima facie grounds for believing that the appellant is not guilty of having committed the

offence as alleged and therefore, he is entitled to be released on bail subject to the condition that he executes a personal bond for a sum of Rs.

25,000/- (Rupees Twenty Five Thousand Only) with two sureties each for a likesum to the satisfaction of the learned Additional Chief

Metropolitan Magistrate, Egmore and on a further condition that after his release, the appellant shall reside at Chennai and report before the said

Magistrate everyday at 11 a.m.

In the result, the order of the Special Judge dated 4.8.2003 in Crl.M.P. No. 52 of 2003 is hereby set aside and the appellant is directed to be

released on bail upon his satisfying the above said conditions. The criminal appeal is accordingly allowed. The observations made in this judgment

shall, in no way, prejudice the trial of the case and the trial court shall proceed with the trial of the case, uninfluenced by any of the observations

contained in this judgment.