Section 21(4) of the National Investigation Agency 2008

Justices: Siddharth Mridul & Anup Jairam Bhambhani

While dealing with the matter of this case, there are certain things which have been held by the Hon’ble Court, which are mentioned as follow:

The phrase ‘terrorist act’ must be its colour and flavour from the problem of terrorism as was earlier addressed by the Parliament under TADA and POTA. Though, as seen above, the phrase ‘terrorist act’ has been defined in a very wide and detailed manner within S.15 itself, in our opinion, the court must be careful in employing the definitional words and phrases used in S.15in their absolute literal sense or use them lightly in a manner that would trivialise the extremely heinous offence of ‘terrorist act’, without understanding how terrorism is different even from conventional, heinous crime”.

In the case of Hitendra Vishnu Thakur, it was held by the Hon’ble Supreme Court that, “the extent and reach of terrorist activity must travel beyond the effect of an ordinary crime and must not arise merely by causing disturbance of law and order or even public order, and must be such that it travels beyond the capacity of the ordinary law enforcement agencies to deal with it under the ordinary penal law.

Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency ‘crying wolf’.

It is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every ‘terrorist’ may be a criminal but every criminal cannot be given the label of a ‘terrorist’ only to set in motion the more stringent provisions of TADA”.

While referring the judgment of PUCL vs. Union of India, the court has stated that terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other-hand, it is inter-State, international or cross-border in character.

Notwithstanding the fact that the definition of ‘terrorist act’ in S.15UAPA is wide and even somewhat vague, the phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC.

While quoting the judgment of Sanjay Dutt, the Supreme Court that when law visits a person with serious penal consequences, the courts must take extra care to ensure that those to whom the legislature did not intend to be covered by the express language of the statue “are not roped in by stretching the law”.

It is therefore clearly the position in our jurisprudence that where a provision of law engrafting serious penal consequences is vague, such provision must be construed framework; and must be applied in a just and fair way, it unjustly ropes within its ambit persons whom the Legislature never intended to punish.

Furthermore it was held by the Court in our opinion, the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less. Absent this, UAPA could not have been enacted by the Parliament since the only entries in List-I of the Seventh Schedule to the Constitution that would bring the statute within the only entries in List of the Seventh Schedule to the Constitution that would bring the statute within the legislative competence of the Parliament are Entry 1 read with Entry 93 relating to the Defence of India and offences with respect to the Defence of India. It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA, since such conventional matters would have fallen within Entry 1 of List-II (State List) and/ or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution. In order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, as we must, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the ‘Defence of India’.

It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA, since such conventional matters would have fallen within Entry 1 of List- II (State List) and/or Entry of List-III (Concurrent List) of the Seventh Schedule to our Constitution.

In this case, the provisions of S.43 of the UAPA may be noted, which contain a presumption against an accused person, to the effect that unless the contrary is shown, the court shall presume that the accused had committed an offence under section 15 provided it is proved that the arms, explosives or other substances were recovered from the possession of the accused and there is reason to believe that these were used in the commission of the offence; or finger prints or other definitive evidence suggesting involvement of the accused was found at the site of the offence.

While concluding the case, the Court has held that to bring its case within Chapter IV of the UAPA the State must therefore, without calling upon the court to draw interferences and conclusions, show that the accusations made against the appellant prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.

Correspondingly therefore, under section 43D (5) of the UAPA, where, before allowing a bail plea, the Court is required to assess if the accusation against an accused is prima facie true, the burden to demonstrate the prima facie veracity of the allegation  must fall upon the prosecution.

15th June 2021 DEL. HC