Law Relating To Terrorism Cases
Law Relating To Terrorism Cases
TO TERRORISM
CASES
JUSTICE N. KOTISWAR SINGH
Judge, Gauhati High Court
• Important facets of Indian law (substantive and
procedural), concerning terrorism related cases.
cases 3. Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
4. The Narcotic Drugs and Psychotropic Substances Act, 1985
5. Maharashtra Control of Organised Crime Act, 1999
6. National Investigation Agency Act, 2008
7. Information Technology Act 2000
8. Passports Act, 1967
9. Arms Act, 1959
10. Explosive Substances Act, 1908
11. Extradition Act, 1962
12. Prevention of Seditious Meetings Act, 1911
13. Foreigners Act 1946
14. National Security Act, 1980
15. The Preventive Detention Act (PDA), 1950
Schedule to the NIA Act
• 1. The Atomic Energy Act, 1962
• 2. The Unlawful Activities (Prevention) Act, 1967
• 3. The Anti-Hijacking Act, 1982
• 4. The Suppression of Unlawful Acts against Safety of Civil Aviation Act, 1982
• 5. The SAARC Convention (Suppression of Terrorism) Act, 1993
• 6. The Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed
Platforms on Continental Shelf Act, 2002
• 7. The Weapons of Mass Destruction and their Delivery Systems (Prohibition of
Unlawful Activities) Act, 2005
• 8. Offences under—(a) Chapter VI of the Indian Penal Code (45 of 1860)
[sections 121 to 130 (both inclusive)]
--- (b) Sections 489-A to 489-E (both inclusive) of the
Indian Penal Code(45 of 1860).
Terrorist Act :: Definition
15. Terrorist act (UAP Act) -- Whoever does any act with intent to threaten or
likely to threaten the unity, integrity, security, economic security, or
sovereignty of India or with intent to strike terror or likely to strike terror in
the people or any section of the people in India or in any foreign country,
(a) by using bombs, dynamite or other explosive substances or inflammable substances
or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or
by any other substances (whether biological radioactive, nuclear or otherwise) of a
hazardous nature or by any other means of whatever nature to cause or likely to cause—
(i) death of, or injuries to, any person or persons;
or
(ii) loss of, or damage to, or destruction of, property;
or
(iii) disruption of any supplies or services essential to the life of the community in India or
in any foreign country;
or
(iii-a) damage to, the monetary stability of India by way of production or smuggling or
circulation of high-quality counterfeit Indian paper currency, coin or of any other
material;
or
(iv) damage or destruction of any property in India or in a foreign country used or
intended to be used for the defense of India or in connection with any other purposes
of the Government of India, any State Government or any of their agencies;
or
(b) overawes by means of criminal force or the show of criminal force or attempts to
do so or causes death of any public functionary or attempts to cause death of any
public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person
or does any other act in order to compel the Government of India, any State
Government or the Government of a foreign country or 6[an international or inter-
governmental organization or any other person to do or abstain from doing any act;
or], commits a terrorist act.
General Assembly Resolution 49/60:
• Generating & raising funds for terrorist act and terrorist organisations.
Sec 17 &
Sec 40 • Any person who is a “member” of a terrorist gang or terrorist organisation is liable for
imprisonment. Arup Bhuyan Vs. State (2011)3 SCC 377; India Das Vs State (2011)3 SCC
Sec 20 & 380. This issue has been referred to a larger bench in 2015.
Sec 38 • Thwaha Fasal Vs UOI, Crl Appeal No. 1302 of 2021 : intention to further activities of a
terrorist organization is essential ingredient for offences under Sec 38 and 39.
Sec 35
& Sec • By 2019 Amendment Act- Central Govt. conferred power to designate “individual” as
terrorist. [Constitutional validity challenged in the Supreme Court]
36
Unlawful Activities (Prevention) Act, 1967
Presently, the Principal Statute dealing with terrorist related cases.
Amendments in UA(P)A in the years - 2004, 2008 and 2013.
Important facets –
• S. 43C: Application of provisions of the Code
Sec 43C, 43 (D) • S. 43D: Modified application of certain provisions of the Code [Bail &
Remand]
• Protection of Witnesses: Sect. 17 of the NIA Act [For reasons to be recorded in
Sec 44 writing]
Sec 48 • Effect of the Act & rules etc. inconsistent with other enactments.
Terrorist Act :: Meaning :: Sec. 15 UAP Act
Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602
7. …………“Terrorism” has not been defined under TADA nor is it possible to give a precise definition of “terrorism” or lay
down what constitutes “terrorism”. It may be possible to describe it as use of violence when its most important result is not
merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the
potential of producing on the society as a whole. …. the extent and reach of the intended terrorist activity travels beyond
the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is
to overawe the Government or disturb harmony of the society or “terrorise” people and the society and not only those
directly assaulted, with a view to disturb even tempo, peace and tranquility of the society and create a sense of fear and
insecurity.
…………What distinguishes “terrorism” from other forms of violence, therefore, appears to be the deliberate and systematic
use of coercive intimidation.
…………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. The criminal activity in order to invoke TADA must be committed with the requisite
intention as contemplated by Section 3(1) of the Act by use of such weapons as have been enumerated.
Question: Does it have the effect of overriding the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2015, if a juvenile is charged under the UAP Act?
1555. Thus, we do not think that the JJ Act would have an overriding effect on TADA which was not
in existence on the date of commencement of the provisions of Section 1(4) of the JJ Act.
1556. TADA, being a special Act, meant to curb the menace of terrorist and disruptive activities will
have effect notwithstanding the fact that the JJ Act is general and beneficial legislation. On perusal
of aims and objects of TADA, it is clear that the act is brought into the statute books to deal with a
special category of persons viz. terrorists.
Waging War :: Section 121 IPC
Nazir Khan v. State of Delhi, (2003) 8 SCC 461 : 2003 SCC (Cri) 2033 :
… in order to support a conviction on such a charge it is not enough to show that the persons charged have
contrived to obtain possession of an armoury and have…….. used the rifles and ammunition so obtained against
the government troops. It must also be shown that the seizure of the armoury was part and parcel of a planned
operation and that their intention in resisting the troops of the Government was to overwhelm and defeat these
troops and then to go on and crush any further opposition……
(5) The court must be cautious in adopting an approach which has the effect of bringing within the
fold of Section 121 all acts of lawless and violent acts resulting in destruction of public properties,
etc., and all acts of violent resistance to the armed personnel to achieve certain political
objectives.
(6) The expression “waging war” should not be stretched too far to hold that all the acts of
disrupting public order and peace irrespective of their magnitude and repercussions could be
reckoned as acts of waging war against the Government. A balanced and realistic approach is
called for in construing the expression “waging war” irrespective of how it was viewed in the long
long past.
(7) The single most important factor which impels us to think that this is a case of waging or
attempting to wage war against the Government of India is the target of attack chosen by the slain
terrorists and conspirators and the immediate objective sought to be achieved thereby. ..The
target chosen was Parliament - a symbol of the sovereignty of the Indian republic.
Waging War :: Section 121 IPC
Mohd. Ajmal Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1
(1) The expression “Government of India” is surely not used in this narrow and restricted sense in Section 121. It implies
the Indian State, the juristic embodiment of the sovereignty of the country that derives its legitimacy from the collective
will and consent of its people.
(2) Though every terrorist act does not amount to waging war, certain terrorist acts can also constitute the offence of
waging war and there is no dichotomy between the two. Terrorist acts can manifest themselves into acts of war. According
to the learned Senior Counsel for the State, terrorist acts prompted by an intention to strike at the sovereign authority of
the State/Government, tantamount to waging war irrespective of the number involved or the force employed.
Terrorist acts and the acts of waging war have overlapping features. However, the degree of animus or intent and the
magnitude of the acts done or attempted to be done would assume some relevance in order to consider whether the
terrorist acts give rise to a state of war. Yet, the demarcating line is by no means clear, much less transparent. It is often a
difference in degree. The distinction gets thinner if a comparison is made of terrorist acts with the acts aimed at overawing
the Government by means of criminal force. Conspiracy to commit the latter offence is covered by Section 121-A.”
What matters is that the attack was aimed at India and Indians. It was by foreign nationals. People were killed for no other
reason than they were Indians; in case of foreigners, they were killed because their killing on Indian soil would embarrass
India. The conspiracy, in furtherance of which the attack was made, was, inter alia, to hit at India; to hit at its financial
centre; to try to give rise to communal tensions and create internal strife and insurgency; to demand that India should
withdraw from Kashmir; and to dictate its relations with other countries. It was in furtherance of those objectives that the
attack was made, causing the loss of a large number of people and injury to an even greater number of people. Nothing
could have been more “in like manner and by like means as a foreign enemy would do”.
Sedition :: Section 124A IPC
Kedar Nath Singh v. State of Bihar, 1962 Supp (2) SCR 769 : AIR 1962 SC 955
………………………..The ratio decidendi in that case, in our opinion, applied to the case in hand insofar as we propose to limit its
operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities
involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.
▪
Sedition :: Section 124A IPC
The Schedule to the Act includes offences under the UAPA Act, Chapter VI of the
Indian Penal Code.
Unique feature – The Central Govt. u/s 6(4) and 6(5) of the Act , if is of the
opinion that a Schedule offence is required to be investigated under this Act, it
may, suo motto, direct the Agency to investigate the same and, whereafter, the
State u/s 6(6) is to transmit the records to the NIA and not proceed with
investigation.
(ii) Bail/Remand
3. Sentencing
INVESTIGATION
Sec 154 – Sec 173 CrPC Role and Duties of Magistrates during investigation.
Judicial Pronouncement * Sec 156(3) & Sec 173(8) CrPC : Magistrate has supervisory power to ensure
proper and fair investigation. Such power flows from Article 21 of the
Constitution of India.
* Such power can be exercised at a stage prior to commencement of trial. Trial
means after framing of charge. [Para 27]
* Magistrate has the power to suo motu direct further investigation.
Pre-trial stages
ARREST
43A of the UAP Act, inserted in 2008.
43C: Provisions of the CrPC shall apply unless inconsistent with the
provisions of the UAP Act to all arrests, searches and seizures under
the Act.
ANTICIPATORY BAIL
Sec 43 D – UA (P) Act • No Anticipatory Bail for offences under the UA (P) Act.
BAIL
Sec 439 CrPC • A High Court or Court of Session may direct that any person
accused of an offence and in custody be released on bail.
Iqbal Ahmed Kabir Ahmed vs. The State of Maharashtra (Cril Appeal
No.355 OF 20210 : Bombay High Court: DOJ 13 August 2021.
[Under TADA]
Shaheen Welfare Association versus Union of India (1996) 2 SCC 616.
[Para 13, 14, 16]
--- Classification of undertrials into 3 categories:
(a) hardcore undertrials
(b) acts/involvement Section 3 and/or 4 of the TADA Act :
(c) roped in, not directly attracting Section 3 and/or 4 of the TADA Act
(d) who are in position of incriminating articles in notified areas and
booked under Section 5 of TADA
• “35. Presumption of innocence is a human right…… Sub-section (4) of Section 21 must be interpreted keeping in view the
aforementioned salutary principles. ……
• 36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion
that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery
available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
• 37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials
on record only for grant of bail and for no other purpose.
• 38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too
far. …... The court at the time of considering the application for grant of bail shall consider the question from the angle as to
whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not
lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA.
• 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive
finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court
intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will
be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the
legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to
maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before
commencement of trial. …….
• 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad
probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-
section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding
that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings
recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any
bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at
the trial, without in any manner being prejudiced thereby.
NIA versus Zahoor Ahmed Shah Watali, (2019) 5 SCC 1. [Under UAP Act]
• 23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for
believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this
Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those
decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well.
Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the
Court is required to record its opinion that there are reasonable grounds for believing that the accused is “not guilty” of the
alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable
grounds for believing that the accused is “not guilty” of such offence and the satisfaction to be recorded for the purposes of the
1967 Act that there are reasonable grounds for believing that the accusation against such person is “prima facie” true. By its very
nature, the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference
to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or
disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence.
It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless
rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is
“prima facie true”, as compared to the opinion of the accused “not guilty” of such offence as required under the other special
enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for
believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for
considering a discharge application or framing of charges in relation to offences under the 1967 Act. Nevertheless, we may take
guidance from the exposition in Ranjitsing Brahmajeetsing Sharma12, wherein a three-Judge Bench of this Court was called upon
to consider the scope of power of the Court to grant bail. In paras 36 to 38, the Court observed thus: (SCC pp. 316-17)…..
• 24. A priori, the exercise to be undertaken by the Court at this stage—of giving reasons for grant or non-grant of bail—is markedly
different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not
required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the
involvement of the accused in the commission of the stated offence or otherwise.
• 32. Accordingly, we have analysed the matter not only in light of the accusations in the FIR and the charge-sheet or the police
report made under Section 173, but also the documentary evidence and statements of the prospective witnesses recorded under
Sections 161 and 164, including the redacted statements of the protected witnesses, for considering the prayer for bail.
Union of India v. K.A. Najeeb, (2021) 3 SCC 713: [Under UAP Act]
[On speedy trial: Sec 43D less stringent: Constitutional power]
15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover
within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court
Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India15, it was held that undertrials cannot indefinitely be
detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established
before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the
risk to society in case a potential criminal is left at large pending trial, the courts are tasked with deciding whether an
individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the
accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on
bail.
17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the
ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the
restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised.
Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail
but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable
time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an
approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric
for denial of bail or for wholesale breach of constitutional right to speedy trial.
• 19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is
comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be
satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no
such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the
competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of
tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, etc.
Thwaha Fasal v. Union of India, 2021 SCC Online SC 1000 [Under UAP Act]
34. Now the question is whether on the basis of the materials forming part of the charge sheet, there are
reasonable grounds for believing that accusation of commission of offences under Sections 38 and 39 against
the accused nos.1 and 2 is true. As held earlier, mere association with a terrorist organisation is not sufficient
to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39.
The association and the support have to be with intention of furthering the activities of a terrorist
organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation
of the accused in the activities of a terrorist organization which are borne out from the materials forming a
part of charge sheet. At formative young age, the accused nos.1 and 2 might have been fascinated by what is
propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI
(Maoist) in soft or hard form. Apart from the allegation that certain photographs showing that the accused
participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie
there is no material in the charge sheet to project active participation of the accused nos.1 and 2 in the
activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part
of furthering the activities or terrorist acts of the terrorist organisation. An allegation is made that they were
found in the company of the accused no.3 on 30th November, 2019. That itself may not be sufficient to infer
the presence of intention. But that is not sufficient at this stage to draw an inference of presence of intention
on their part which is an ingredient of Sections 38 and 39 of the 1967 Act. Apart from the fact that overt acts
on their part for showing the presence of the required intention or state of mind are not borne out from the
charge sheet, prima facie, their constant association or support of the organization for a long period of time is
not borne out from the charge sheet.
36. …………………..By applying the law laid down in the case of Watali (supra), there were no reasonable grounds
for believing that the accusations against the accused nos.1 and 2 of commission of offences under Sections
38 and 39 were prima facie true.
Iqbal Ahmed Kabir Ahmed vs. The State of Maharashtra (Cril Appeal No.355 OF 20210 : Bombay High Court:
DOJ 13 August 2021. [Under UAP Act]
28. In our considered opinion, if the expression, “reasonable grounds to believe that the accusation is prima
facie true” and “reasonable grounds for believing that the accused is not guilty” are compared and
contrasted, a greater degree of satisfaction is required to record an opinion that there are reasonable
grounds to believe that the accused is not guilty of the alleged offence, albeit prima facie. The restriction on
grant of bail under the special enactments which provide for recording a satisfaction that there are
reasonable grounds to believe that the accused is not guilty of the offences charged under those
enactments, appears to be more stringent.
34. This takes us to the submission on behalf of the respondent that the fact that electric switch board in the
house of the accused No. 3 was used to solder the material to prepare a bomb leads to no other inference
than that of accused No. 3 being a confederate in the conspiracy to commit terrorist acts. Two factors are of
critical signifcance. One, nothing incriminating has been recovered from the possession of the accused No. 3
in the context of charge of preparing IED. Two, the accused No. 3 has not been charged with the offence
punishable under the Explosives Substances Act, 1908. The fact that the co-accused has pointed the switch
board in the house of the accused, where the material was allegedly soldered, without seizure of any article
or material therefrom, prima facie, may not amount to the discovery of a fact which distinctly relates to the
said disclosure statement. Nor the said statement can be admitted against the accused No. 3, under sec.10
of the Evidence Act, as with the arrest of accused No. 1, the conspiracy came to an end. For these reasons, at
this juncture, in our view, the alleged discovery can not be, prima facie, fastened against the appellant.
35. The upshot of aforesaid consideration is that the material which is pressed into service against the
appellant, prima facie, does not appear to be of such quality as to sustain a reasonable belief that the
accusation against the appellant is true. In the totality of the circumstances, the bar envisaged by section 43-
D(5) may not operate with full force and vigor.
What is the difference between:
When the voluntary character of the confession and its truth are
accepted, it is safe to rely on it. Bombay Blast Case: Yakub Abdul
Razak Memon v. State of Maharashtra, (2013) 13 SCC 1 [Para
180-180.5]
Retracted confession
Retracted confession, however, stands on a slightly different footing.
A court may take into account the retracted confession
But it must look for the reasons
(i) for the making of the confession as well as
(ii) for its retraction, and
(iii) must weigh the two to determine whether the retraction affects the voluntary
nature of the confession or not.
If the court is satisfied that it was retracted because of an afterthought or advice, the
retraction may not weigh with the court if the general facts proved in the case and the tenor
of the confession as made and the circumstances of its making and withdrawal warrant its
user.
All the same, the courts do not act upon the retracted confession without finding assurance
from some other sources as to the guilt of the accused.
Therefore, it can be stated that a true confession made voluntarily may be acted upon
with slight evidence to corroborate it, but a retracted confession requires the general
assurance that the retraction was an afterthought and that the earlier statement was true.
[Bharat v. State of U.P., (1971) 3 SCC 950 ]
Retracted confession
A retracted confession may form the legal basis of a conviction if the
court is satisfied that it was true and was voluntarily made.
But it has been held that a court shall not base a conviction on such a
confession without corroboration.
It is not a rule of law, but is only rule of prudence.
General rule of practice that it is unsafe to rely upon a confession,
much less on a retracted confession, unless the court is satisfied that
the retracted confession is true and voluntarily made and has been
corroborated in material particulars.”
[Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094]
Corroboration of Retracted confession
There need not be meticulous examination of the entire material particulars.
“It would be sufficient, in our opinion, that the general trend of the confession
is substantiated by some evidence which would tally with what is contained in
the confession.” [Subramania Goundan Vs. State of Madras, 1958 SCR 428]
Use of Retracted confession against a co-accused
Confession of one accused cannot be treated as substantive evidence against his co-
accused. Keeping excluded the confession of a co-accused, when the evidence, adduced
Evidentiary value on record, otherwise, satisfy the court of the guilt of the accused, the confession of the
co-accused can be used as an aid for strengthening the conclusion.
[Para 12]: …in dealing with a case against an accused person, the court cannot
Judicial Pronouncement start with the confession of a co-accused person; it must begin with other
evidence adduced by the prosecution and after it has formed its opinion with
regard to the quality and effect of the said evidence, then it is permissible to turn
to the confession in order to receive assurance to the conclusion of guilt which
the judicial mind is about to reach on the said other evidence. That, briefly
stated, is the effect of the provisions contained in Section 30…
CONFESSION OF CO-ACCUSED
POTA
Sec 53 Presumption as to offences under
section 3.—Similar as in TADA
UA (P)
Act Presumption as to offences under section 15. — Similar provision, with
Sec 43 E addition of the following : ….. (b) that by the evidence of the expert, the
finger-prints of the accused or any other definitive evidence suggesting
the involvement of the accused in the offence were found at the site of the
offence or on anything including arms and vehicles used in connection
with the commission of such offence, the Court shall presume, unless the
contrary is shown, that the accused has committed such offence.
Judicial Pronouncement
Noor Aga v State of Punjab & Anr 42. The presumption raised in a case of this nature is one for shifting the
burden subject to fulfilment of the conditions precedent therefor.
(2008) 16 SCC 417 52. Sections 35 and 54 of the Act, no doubt, raise presumptions with
regard to the culpable mental state on the part of the accused as also
place the burden of proof in this behalf on the accused; but a bare perusal
[Judgment delivered in context of the said provision would clearly show that presumption would operate
of Sec 35 and 54 of the NDPS in the trial of the accused only in the event the circumstances contained
Act, which also provides for therein are fully satisfied. An initial burden exists upon the prosecution
presumption & reverse burden and only when it stands satisfied, would the legal burden shift. Even then,
of proof] the standard of proof required for the accused to prove his innocence is
not as high as that of the prosecution.
Whereas the standard of proof required to prove the guilt of the accused
on the prosecution is “beyond all reasonable doubt” but it is
“preponderance of probability” on the accused. If the prosecution fails to
prove the foundational facts so as to attract the rigours of Section 35 of
the Act, the actus reus which is possession of contraband by the accused
cannot be said to have been established.
54…..Provisions imposing reverse burden, however, must not only be
required to be strictly complied with but also may be subject to proof of
some basic facts as envisaged under the statute in question.
Evidence of Accomplice
Section 133 Indian Evidence Act, Section 114 (b) Indian Evidence Act,
Section 306 to 308 CrPC)
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 [Para 69]
PROTECTION OF WITNESSES
Sec 17 of the National Investigation Act, 2008
On 5th Dec, 2018, Hon’ble Supreme Court of India in Mahendra Chawla
and Others vs. Union of India and Others, (2019) 14 SCC 615, approved
the Centre’s draft witness protection scheme and directed all the states
to implement it until parliament comes out with a legislation.
WITNESS PROTECTION SCHEME: