Farhat Hussain vs Union Territoly Of Delhi And Anr.
1990 Latest Caselaw 206 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) By orders made on 3rd June, 1989, Sh. R.L. Chugh, Additional Sessions Judge. Delhi, dismissed the bail application of the petitioner on the ground that the case had to be tried under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'the Act') because the alleged recovery was of April, 1989 when the said Act was enforced. Similar observations were also made while rejecting the second application on 6th June, 1989. By this petition tiled under Article 226 of the Constitution of India and Section 482 of Cr.P.C. the petitioner seeks quashing of the aforesaid orders dated 3rd June 1989 and 6th June, 1989 and in particular that part of the order whereby learned Additional Sessions Judge held that the case had to be tried under the Act. In substance the grievance made in this petition is, that on the basis of the allegations, made by the prosecution, the bail application of the petitioner cannot be rejected on the ground that the case is liable to be tried by a designated court under the Act. It is claimed that it has to, be tried by an ordinary court. The facts in brief are these:-

(2) The petitioner is said to be involved in F.I.R No. 128 dated 23-3-1989 under Section 25/54/59 of the Arms Act, 1959. inter-alia, on the allegations that one Sher Singh while driving a motor-cycle along with another person met with an accident with the result he received injuries and the police recovered from possession of Sher Singh a Pistol without magazine and on the basis of that a case F.I R. No. 128 was interrogated and and at his instance of Saran Singh was arrested in the same F.I.R.inter-alia, on the allegations that Sher Singh had received pistol from Saran Singh. The case of the prosecution, as set out in the writ petition, is that the statement of Saran Singh as an accused was recorded by the police on or before 28-3-1989 wherein Saran Singh stated that he had received Pistol from the petitioner three years ago According to the petitioner as per the said statement, Saran Singh had received Pistol sometime in March, 1986. It has been. inter alia pleaded that the statement given by Saran Singh is hit by Section 24 of the Indian Evidence Act and is not admissible under Section 27 of the said Act as recovery of the Pistol, if any, had already taken place. It is further pleaded that assuming the allegations to be correct on its face value, the possession of the petitioner relating to the said Pistol was prior to 11-4-1986. A notification under Section 6 of the Terrorist and Disruptive Activities (Prevention) Act. 1985 (No. 31 of 1985) (for short '1985 Act') was issued on April 11, 1986 extending the provisions of 1985 Act to Union Territory of Dalhi. The petitioner says that as even according to the prosecution the possession of the petitioner in respect of the Pistol relates to the period prior to 11- 4-1986 the provisions of the Act or the 1985 Act cannot be applied and, if at all, the petitioner can be prosecuted only under the provisions of the Arms Act.

(3) It has also. been averred in the petition that the bail applications of aforesaid Sher Singh was considered by the court of Additional Sessions Judge and not by a designated court Sher Singh was granted bail by orders of Additional Sessions Judge, dated 4-4-1989. The bail application of Saran Singh was also not considered by the designated court but was considered by Direct and Sessions Judge, Delhi, and by orders made on 28th March 1989 made by District and Sessions Judge. Delhi, Saran Singh was also ordered to be admitted on bail. One of the contention of Mr.Grover. learned counsel for the petitioner was that application of the person from whose possession the Pistol was recovered was considered by the ordinary court and not by designated court, a different treatment could not be meted out to the petitioner against whom only allegations are that he gave possession of the pistol to Saran Singh in March. 1986. Mr. Grover contended that bail application of the petitioner could not be dismissed on the ground that it can be considered only by the. designated court under the Act.

(4) Before considering the picas taken in the counter affidavit by the respondent, it will be appropriate to notice the relevant provisions of the 1985 Act and the Act. The 1985 Act came into force on 23rd May, 1985. Section 3 of 1985 Act provides for punishment for terrorist acts. Section 4 provides for punishment for disruptive activities. Section 6 provides for enhanced penalties on contravention of provisions Acts & Rules mentioned in the said section Section 6 is applicable if contravention takes place in any area notified in that behalf by a State Government Insofar as the Union Territory of Delhi is concerned, the notification under Section 6 of 1985 Act was issued on 11th April, 1986. By issued of the Notification the union Territory of Delhi became a notified area as contemplated by Section 6 of 1985 Act. The 1985 Act, as per Section 1(3) had to remain in force for a period of two years Tom the date of its commencement

(5) On the expiry of period of two years i.e., from 24th May. 1987 the Act came into force. Section 1(4) of the Act, inter-alia, provides that it snail remain in force turn a period of two years from 24th May 1987 but its expiry shall not affect the acts and proceedings etc., mentioned in clauses (a) to (d) of she Section. Similar provision was also there in 1985 Act. Section 4 of the Act provides turn punishment for disruptive -activities. Section 5 provides that where any person is in possession of any arms and ammunition etc-, mentioned in that section unauthorisedly in a notified area he 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 reliable to fine. Section 6 of the Act.. inter alia, provides for enhanced penalties if any person with intent to aid any terrorist or disruptions contravenes any provision of the Acts or rules made under the Acts mentioned in that section, notwithstanding anything contained in any of the said Acts or rules made there under.

(6) From the facts set out in the counter affidavit it appears that the case of the prosecution is that a Pistol was recovered from the possession of Sher Singh and F.I.R. 128 dated 33rd March, 1989 under Sections 25/54/59 of the Arms Act was registered. On interrogation of Sher Singh, Saran Singh was arrested. Saran Singh in his statement disclosed that the Pistol belonged to the petitioner who had mortgaged the pistol with him (Saran Singh) for Rs. 1500.00 and undated receipt alleged to have been executed by the petitioner was produced. Saran Singh made the statement, according to the allegations in the petition, on or before 28th March, 1989, that he had received the pistol from the petitioner three years ago i.e , sometimes in March 1986. Sh. Surinder Kumar Kakkar, S.H.O Indraprastha Estate, New Delhi, in his affidavit filed in reply to the petitioner after staying the facts as noticed hereinbefore, inter-alia, pleaded that ownership of the pistol for all purposes remained with the petitioner and it was temporarily kept under mortgage with the' third person but the allegation of the petitioner that Saran Singh had disclosed in his statement that pistol had been given to him by Farhat Hussain, three years ago, i.e., sometime in March, 1986 was not controverter. even during arguments Sh. Lao, learned counsel for the respondent, could not state as to what wa¯ the case of the prosecution as to when the pistol was given by Farhat Hussain to Saran Singh. Mr. Lao did not contend that the pistol was given by Farhat Hussain to Saran Singh on or after 11th April, 1986 Mr. Lao conceded that if possession of the pistol had been given by Farhat Hussain to Saran Singh prior to 11th April, 1986 there will he no contravention of any provisions of 1985 Act or the Act. Learned counsel, however, contended that the question as to when the possession was delivered by Farhat Hussain to Saran Singh will be decided by the trial court at the appropriate stage and he is not in a position to state whether it was so delivered before or after 11-4-1986.

(7) As noticed above, the notification as contemplated by Section 6 of the 1985 Act was issued on 1 1-4-1986. Thus the provisions of Section 6 of 1985 Act Became operative, insofar as the Territory of Union of Delhi is concerned, with effect from 11-4-1986. Any contravention oi provisions of Arms Act, 1959 prior to 11-4-1986 will necessarily have to be dealt under the provisions of Arms Act or the Rules made there under and not under any provision which had not been enforced. In view of the averments in the writ petition that as per statement of Saran Singh the possession had been delivered to him sometime in March 1986 and in absence of respondent having controverter the said fact in the counter affidavit and even thereafter this court has to proceed on the assumption that the contravention, if, any, took Piece prior to the issue of the notification on 11th April, 1986. Mr Lao conceded-and in my opinion rightly that if possession of the pistol was delivered prior to 1l-4-1986 the case will have to be dealt with under the provisions of the Arms Act. The prosecution cannot be allowed to take a stand, as taken by Mr. Lao, that the question as to when the pistol was given by Farhat Hussain to Saran Singh will be decided by the trial court and till that is decided the petitioner has to be tried be designated court under the Act. The prosecution cannot be permitted to say that it cannot take any positive stand as to when the possession of the pistol was delivered particularly fact. It is only when the prosecution takes a positive stand that the possession of the pistol was delivered after 11-4-1986 the question of the applicability of 1985 Act or the Act may arise and not otherwise. In view of the aforesaid facts and circumstances, the application of the petitioner asking for bail cannot be rejected on the ground that it has to be considered by the designated court under the Act.

(8) It may be noticed, that the Arms Act provides for a lesser, punishment whereas the Act and 1985 Act provide for the higher punishments. If the petitioner had delivered the pistol prior to the applicability of these Acts, he will not be guilty of any offence under these Acts though he may have committed an offence under the Arms Act. At this stage, it is not necessary for this court to state whether the alleged delivery of the pistol by Farhat Hussain to Saran Singh prior to 11-4-1986 constitutes an offence under the Arms Act and if so, to what effect. These questions of course, will be dealt with by appropriate criminal court.

(9) For the offences committed prior to the commencement of the Act the punishment can only be awarded under the law in force at the time of commission of offence and not the punishment provided under the Act. Under Article 20(1) of the Constitution of India a person can be convicted of any offence for violation of a law in force at the time of commission of the act charged as an offence. No person can be subjected to a penalty more than permissible under the law in force at the time of commission of the offence.

(10) The plea that the ownership of the pistol for all purposes remained with the petitioner and it was temporarily kept under mortgage with a third person is not relevant for the purposes of deciding the present petition. On the facts and circumstances of the present case, it cannot be held that because of alleged constructive possession, the petitioner is liable to be tried, for an offence under 1985 Act or the Act. whether alleged constructive. possession constitutes an offence under Arms Act or not will be considered by the appropriate criminal court.

(11) Further, it appears strange that the person from whose possession the pistol was recovered, namely, Sher Singh is being dealt under the Arms Act. Sher Singh's application for bail was considered by the ordinary criminal court and not the designated court Sher Singh, was granted bail. The same is the position of Saran Singh. The application of the petitioner turn grant of bail could not have been rejected on the ground that the case has to be tried under the Act.

(12) For the reasons stated above, the petition is allowed. The impugned order dated 3-6-1989 made by Shri R.L.Chugh, Additional Sessions Judge, Delhi, insofar as it directs that the case has to be tried under the Act, is quashed. As and when the petitioner makes an application for grant of bail it will be considered on merits by the appropriate criminal court in accordance with directions contained in this order and it will not be rejected on the ground that the case has to be tried under the Act.