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IN SUPREME COURT OF INDIA Page 1 of 31

CASE NO.:
Writ Petition (civil) 389 of 2002

PETITIONER:
People’s Union for Civil Liberties & Anr.

RESPONDENT:
Union of India

DATE OF JUDGMENT: 16/12/2003

BENCH:
S. RAJENDRA BABU & G.P. MATHUR

JUDGMENT:
J U D G M E N T

[With
W.P.(Crl.) 89/2002, W.P.(Crl.)
129/2002, W.P.(Crl.) 28/2003 &
W.P.(Crl.) 48/2003]

RAJENDRA BABU, J. :

W.P.(C) No. 389/2002 & W.P.(Crl) No.

89/2002 :

In this batch of Writ Petitions before us the

Constitutional validity of various provisions of the
Prevention of Terrorism Act, 2002 (hereinafter
POTA) is in challenge.
The Petitioners’ contended before us that
since the provisions of POTA, in pith and
substance, fall under the Entry 1 (Public Order) of
List II Parliament lacks legislative competence. To
authenticate this contention, the decision in
Rehman Shagoo & others V. State of Jammu
Kashmir, 1960 (1) SCR 680, is relied upon.
According to them, the menace of terrorism is
covered by the Entry "Public Order" and to explain
the meaning thereof, our attention is invited to
decisions in Romesh Thaper V. State of
Madras, 1950 SCR 594, Dr. Ram Manohar
Lohia V. State of Bihar, 1966 (1) SCR 709, and
Madhu Limaye V. SDM, Monghyr, (1970) 3 SCC
746. The Petitioners thus submitted that terrorist
activity is confined only to State(s) and therefore
State(s) only have the competence to enact a
legislation.
The learned Attorney General refuting this
contention submitted that acts of terrorism, which
are aimed at weakening the sovereignty and
integrity of the country cannot be equated with
mere breaches of law and order and disturbances
of public order or public safety. He argued that the
concept of "sovereignty and integrity of India" is
distinct and separate from the concepts of "public
order" or "security of State" which fall under List
II enabling States to enact legislation relating to
public order or safety affecting or relating to a
particular State. Therefore, the legislative
competence of a State to enact laws for its
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security cannot denude Parliament of its
competence under List I to enact laws to
safeguard national security and sovereignty of
India by preventing and punishing acts of
terrorism. Learned Attorney General distinguished
the decision in Rehman Shagoo and submitted
that the legislation dealt with therein is
fundamentally and qualitatively different from
POTA. He also argued before us that Rehman
Shagoo cannot mitigate the binding ratio and
unanimous conclusion reached by this Court on
the point of legislative competence in Kartar
Singh V. State of Punjab, 1994 (3) SCC 569 =
1994 (2) SCR 375, that Parliament can enact such
law.
In deciding the point of legislative
competence, it is necessary to understand the
contextual backdrop that led to the enactment of
POTA, which aims to combat terrorism. Terrorism
has become the most worrying feature of the
contemporary life. Though violent behavior is not
new, the present day ’terrorism’ in its full
incarnation has obtained a different character and
poses extraordinary challenges to the civilized
world. The basic edifices of a modern State, like -
democracy, state security, rule of law, sovereignty
and integrity, basic human rights etc are under
the attack of terrorism. Though the phenomenon
of terrorism is complex, a ’terrorist act’ is easily
identifiable when it does occur. The core meaning
of the term is clear even if its exact frontiers are
not. That is why the anti-terrorist statutes - the
earlier Terrorism and Disruptive Activities
(Prevention) Act, 1987 (TADA) and now POTA do
not define ’terrorism’ but only ’terrorist acts.’ (See
: Hitendra Vishnu Thakur V. State of
Maharashtra, (1994) 4 SCC 602).
Paul Wilkinson, an authority on terrorism
related works, culled out five major characteristics
of terrorism. They are:
1. It is premeditated and aims to create a climate
of extreme fear or terror.
2. It is directed at a wider audience or target than
the immediate victims of violence.
3. It inherently involves attacks on random and
symbolic targets, including civilians.
4. The acts of violence committed are seen by the
society in which they occur as extra-normal, in
literal sense that they breach the social norms,
thus causing a sense of outrage; and
5. Terrorism is used to influence political behavior
in some way - for example to force opponents into
conceding some or all of the perpetrators
demands, to provoke an over-reaction, to serve as
a catalysis for more general conflict, or to
publicize a political cause.
In all acts of terrorism, it is mainly the
psychological element that distinguishes it from
other political offences, which are invariably
accompanied with violence and disorder. Fear is
induced not merely by making civilians the direct
target of violence but also by exposing them to a
sense of insecurity. It is in this context that this
Court held in Mohd. Iqbal M. Shaikh V. State
of Maharashtra, (1998) 4 SCC 494, that:
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"...it is not possible to give a precise definition

of terrorism or to lay down what constitutes
terrorism. But... it may be possible to describe
it as a 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. ... if the object of the activity is to
disturb harmony of the society or to terrorize
people and the society, with a view to disturb
even tempo, tranquility of the society, and a
sense of fear and insecurity is created in the
minds of a section of society at large, then it
will, undoubtedly be held to be terrorist act..."

Our country has been the victim of an

undeclared war by the epicenters of terrorism with
the aid of well-knit and resourceful terrorist
organizations engaged in terrorist activities in
different States such as Jammu & Kashmir, North-
East States, Delhi, West Bengal, Maharashtra,
Gujarat, Tamilnadu, Andhra Pradesh. The learned
Attorney General placed material to point out that
the year 2002 witnessed 4038 terrorist related
violent incidents in J&K in which 1008 civilians and
453 security personnel were killed. The number of
terrorist killed in 2002 was 1707 out of which 508
were foreigners. In the year 2001 there were as
many as 28 suicide attacks while there were over
10 suicide attacks in 2002 in which innocent
persons and a large number of women and
children were killed. The major terrorist incidents
in the recent past includes attack on Indian
Parliament on 13th December 2001, attack on
Jammu & Kashmir Assembly on 1st October, 2001,
attack on Akshardham temple on 24th September
2002, attack on US Information Center at Kolkatta
on 22nd January 2002, Srinagar CRPF Camp attack
on 22nd November 2002, IED blast near Jawahar
Tunnel on 23rd November 2002, attack on
Raghunath Mandir on 24th November 2002, bus
bomb blast at Ghatkopar in Mumbai on 2nd
December 2002, attack on villagers in Nadimarg in
Pulwama District in Jammu Kashmir on the night
of 23rd-24th March 2003 etc. There were attacks
in Red Fort and on several Government
Installations, security forces’ camps and in public
places. Gujarat witnessed gruesome carnage of
innocent people by unleashing unprecedented
orgy of terror. People in Bihar, Andhra Pradesh,
and Maharashtra etc have also experienced the
terror trauma. The latest addition to this long list
of terror is the recent twin blast at Mumbai that
claimed about 50 lives. It is not necessary to swell
this opinion by narrating all the sad episodes of
terrorist activities that the country has witnessed.
All these terrorist strikes have certain
common features. It could be very broadly
grouped into three.
1. Attack on the institution of democracy,
which is the very basis of our country. (By
attacking Parliament, Legislative Assembly etc).
And the attack on economic system by targeting
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economic nerve centers.
2. Attack on symbols of national pride and
on security / strategic installations. (eg. Red Fort,
Military installations and camps, Radio stations
etc.)
3. Attack on civilians to generate terror
and fear psychosis among the general populace.
The attack at worshipping places to injure
sentiments and to whip communal passions. These
are designed to position the people against the
government by creating a feeling of insecurity.

Terrorist acts are meant to destabilize 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
demoralize 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, inter-national or cross-border in
character. Fight against the overt and covert acts
of terrorism is not a regular criminal justice
endeavor. Rather it is defence of our nation and
its citizens. It is a challenge to the whole nation
and invisible force of Indianness that binds this
great nation together. Therefore, terrorism is a
new challenge for law enforcement. By indulging
in terrorist activities organized groups or
individuals, trained, inspired and supported by
fundamentalists and anti-Indian elements were
trying to destabilize the country. This new breed
of menace was hitherto unheard of. Terrorism is
definitely a criminal act, but it is much more than
mere criminality. Today, the government is
charged with the duty of protecting the unity,
integrity, secularism and sovereignty of India from
terrorists, both from outside and within borders.
To face terrorism we need new approaches,
techniques, weapons, expertise and of course new
laws. In the above said circumstances Parliament
felt that a new anti-terrorism law is necessary for
a better future. This parliamentary resolve is
epitomized in POTA.
The terrorist threat that we are facing is now
on an unprecedented global scale. Terrorism has
become a global threat with global effects. It has
become a challenge to the whole community of
civilized nations. Terrorist activities in one country
may take on a transnational character, carrying
out attacks across one border, receiving funding
from private parties or a government across
another, and procuring arms from multiple
sources. Terrorism in a single country can readily
become a threat to regional peace and security
owing to its spillover effects. It is therefore
difficult in the present context to draw sharp
distinctions between domestic and international
terrorism. Many happenings in the recent past
caused the international community to focus on
the issue of terrorism with renewed intensity. The
Security Council unanimously passed resolutions
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1368 (2001) and 1373 (2001); the General
Assembly adopted resolution 56/1 by consensus,
and convened a special session. All these
resolutions and declarations inter alia call upon
Member States to take necessary steps to ’prevent
and suppress terrorist acts’ and also to ’prevent
and suppress the financing of terrorist acts.’ India
is a party to all these resolves. Anti-terrorism
activities in the global level are mainly carried out
through bilateral and multilateral cooperation
among nations. It has thus become our
international obligation also to pass necessary
laws to fight terrorism.
The attempts by the State to prevent
terrorism should be based on well-established
legal principles. The ’Report of the Policy Working
Group of the United Nations and Terrorism’ urged
the global community to concentrate on a triple
strategy to fight against terrorism. They are:
a). Dissuade disaffected groups from
embracing terrorism;
b). Deny groups or individuals the means to
carry out acts of terrorism; and
c). Sustain broad-based international
cooperation in the struggle against terrorism.
Therefore, the anti-terrorism laws should be
capable of dissuading individuals or groups from
resorting to terrorism, denying the opportunities
for the commission of acts of terrorism by creating
inhospitable environments for terrorism and also
leading the struggle against terrorism. Anti -
terrorism law is not only a penal statue but also
focuses on pre-emptive rather than defensive
State action. At the same time in the light of
global terrorist threats, collective global action is
necessary. Lord Woolf CJ in A, X and Y, and
another V. Secretary of the State for the
Home Department (Neutral Citation Number:
[2002] EWCA Civ. 1502) has pointed out that
"...Where international terrorists are operating
globally and committing acts designed to terrorize
the population in one country, that can have
implications which threaten the life of another.
This is why a collective approach to terrorism is
important."
Parliament has passed POTA by taking all
these aspects into account. The terrorism is not
confined to the borders of the country. Cross-
border terrorism is also threatening the country.
To meet such a situation, a law can be enacted
only by Parliament and not by a State Legislature.
Piloting the Prevention of Terrorism Bill in the joint
session of Parliament on March 26, 2002 Hon’ble
Home Minister said:
"...The Government of India has been
convinced for the last four years that we have
been here and I am sure even the earlier
Governments held that terrorism and more
particularly, State-sponsored cross border
terrorism is a kind of war. It is not just a law
and order problem. This is the first factor,
which has been responsible for Government
thinking in terms of an extraordinary law like
POTO.
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...So, first of all, the question that I would like

to pose to all of you and which we have posed
to the nation is: ’Is it just in Jammu and
Kashmir an aggravated law and order situation
that we are facing or is it really when we say it
a proxy war, do we really believe that it is a
proxy war?’...But when you have terrorist
organizations being trained, financed by a
State and it becomes State-sponsored
terrorism and all of them are enabled to
infiltrate into our country, it becomes a
challenge of a qualitatively different nature..."
(Emphasis supplied)

From this it could be gathered that

Parliament has explored the possibility of
employing the existing laws to tackle terrorism
and arrived at the conclusion that the existing
laws are not capable. It is also clear to Parliament
that terrorism is not a usual law and order
problem.
The protection and promotion of human
rights under the rule of law is essential in the
prevention of terrorism. Here comes the role of
law and Court’s responsibility. If human rights are
violated in the process of combating terrorism, it
will be self-defeating. Terrorism often thrives
where human rights are violated, which adds to
the need to strengthen action to combat violations
of human rights. The lack of hope for justice
provides breeding grounds for terrorism.
Terrorism itself should also be understood as an
assault on basic rights. In all cases, the fight
against terrorism must be respectful to the human
rights. Our Constitution laid down clear limitations
on the State actions within the context of the fight
against terrorism. To maintain this delicate
balance by protecting ’core’ Human Rights is the
responsibility of Court in a matter like this.
Constitutional soundness of POTA needs to be
judged by keeping these aspects in mind.
Now, we will revert to the issue of legislative
competence. Relying on Rehman Shagoo
Petitioners argued that Parliament lacks
competence since the ’terrorism’ in pith and
substance covered under the Entry 1 (Public
Order) of List II. Conclusion of this contention
depends upon the true meaning of the Entry -
’Public Order’.
A constitution Bench of this Court in Rehman
Shagoo examined the constitutionality of the
Enemy Agents (Ordinance), No. VIII of S. 2005
promulgated by His Highness the Maharaja under
Section 5 of Jammu Kashmir Constitution Act, S.
1996. For a proper understanding of the ratio in
Rehman Shagoo, it is necessary to understand the
background in which the impugned Ordinance was
promulgated. (See : Prem Nath Kaul V. The
State of Jammu & Kashmir, 1959 Supp. (2)
SCR 270, to understand the background that
prevailed in the then Kashmir). Because any
interpretation divorced from the context and
purpose will lead to bad conclusions. It is a well-
established canon of interpretation that the
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meaning of a word should be understood and
applied in accordance with the context of time,
social and conditional needs. Rehman Shagoo
was concerned with the interpretation of
Instrument of Accession and the power of
Maharaja to issue the impugned Ordinance
therein. The same was promulgated to protect the
state of Kashmir from external raiders and to
punish them and those who assist them. The
situation that prevailed during the latter half of
1940s is fundamentally different form today. The
circumstances of independence, partition, state
re-organization, and the peculiar situation
prevailing in the then Kashmir etc. need to be
taken into account. It is only in that context this
Court said in Rehman Shagoo that the impugned
Ordinance:

" ...In pith and substance deals with public

order and criminal law procedure; the mere
fact that there is an indirect impact on armed
forces in s. 3 of the Ordinance will not make it
in pith and substance a law covered by item
(1) under the head ’Defence’ in the Schedule."

Therefore, Rehman Shagoo is

distinguishable and cannot be used as an authority
to challenge the competence of Parliament to pass
POTA. The problems that prevailed in India
immediately after independence cannot be
compared with the menace of terrorism that we
are facing in the twenty first century. As we have
already discussed above, the present day problem
of terrorism is affecting the security and
sovereignty of the nation. It is not State specific
but trans-national. Only Parliament can make a
legislation to meet its challenge. Moreover, the
entry ’Public Order’ in the State List only
empowers the States to enact a legislation relating
to public order or security in so far as it affects or
relates to a particular State. How so ever wide a
meaning is assigned to the Entry ’Public Order’,
the present day problem of terrorism cannot be
brought under the same by any stretch of
imagination. Thus, Romesh Thaper, Dr. Ram
Manohar Lohia and Madhu Limaye (all cited
earlier) cannot be resorted to read ’terrorism’ into
’Public Order’. Since the Entry Public Order or any
other Entries in List II do not cover the situation
dealt with in POTA, the legislative competence of
Parliament cannot be challenged.
Earlier a Constitution Bench of this Court,
while dealing with the very same argument, held
in Kartar Singh’s case (supra) as follows:

"Having regard to the limitation placed by

Article 245 (1) on the legislative power of the
Legislature of the State in the matter of
enactment of laws having application within
the territorial limits of the State only, the
ambit of the field of legislation with respect to
’public order’ under Entry 1 in the State List
has to be confined to disorders of lesser
gravity having an impact within the boundaries
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of the State. Activities of a more serious nature
which threaten the security and integrity of the
country as a whole would not be within the
legislative field assigned to the States under
Entry 1 of the State List but would fall within
the ambit of Entry 1 of the Union List relating
to defence of India and in any event under the
residuary power conferred on Parliament under
Article 248 read with Entry 97 of the Union
List.
...
The terrorism, the Act (TADA) contemplates,
cannot be classified as mere disturbances of
’public order’ disturbing the ’even tempo of the
life of community of any specified locality’ - in
the words of Hidayathulla, C J in Arun Ghosh v.
State of West Bengal (1970) 1 SCC 98 but it is
much more, rather a grave emergent situation
created either by external forces particularly at
the frontiers of this country or by anti-
nationals throwing a challenge to the very
existence and sovereignty of the country in its
democratic polity.
...
In our view, the impugned legislation does not
fall under Entry 1 of List II, namely, Public
Order. No other Entry in List II has been
invoked. The impugned Act, therefore, falls
within the legislative competence of Parliament
in view of Article 248 read with Entry 97 of List
I and it is not necessary to consider whether it
falls under any of the entries in List I or List
III. We are, however, of the opinion that the
impugned Act could fall within the ambit of
Entry 1 of List I, namely, ’Defence of India’."
[pp. 633, 634, 635]

While this is the view of the majority of

Judges in Kartar Singh’s case (supra), K.
Ramaswamy,J. held that Parliament does possess
power under Article 248 and Entry 97 of List I of
the Seventh Schedule and could also come within
the ambit of Entry 1 of List III. Sahai,J. held
that the legislation could be upheld under Entry 1
of List III. Thus, all the Judges are of the
unanimous opinion that Parliament had legislative
competence though for different reasons.

Considering all the above said aspects, the

challenge advanced by Petitioners of want of
legislative competence of Parliament to enact
POTA is not tenable.

Another issue that the Petitioner has raised

at the threshold is the alleged misuse of TADA and
the large number of acquittals of the accused
charged under TADA. Here we would like to point
out that this Court cannot go into and examine the
’need’ of POTA. It is a matter of policy. Once
legislation is passed the Government has an
obligation to exercise all available options to
prevent terrorism within the bounds of the
Constitution. Moreover, we would like to point out
that this Court has repeatedly held that mere
possibility of abuse cannot be counted as a ground
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for denying the vesting of powers or for declaring
a statute unconstitutional. (See: State of
Rajasthan V. Union of India, (1978) 1 SCR 1,
Collector of Customs V. Nathella Sampathu
Chetty, AIR 1962 SC 316, Keshavananda
Bharati V. State of Kerala, 1973 (4) SCC 225;
Mafatlal Industries V. Union of India, (1997) 5
SCC 536 etc).

Meaning of the word ’abets’ in the context of

POTA:

Pertaining to the validity of individual

sections, petitioners primarily contended that
Section 3(3) of POTA provides that whoever
’abets’ a terrorist act or any preparatory act to a
terrorist act shall be punishable and this provision,
fails to address the requirement of ’mens rea’
element. They added that this provision has been
incorporated in POTA in spite of the contrary
observation of this Court in Kartar Singh,
wherein it was held that the word ’abets’ need to
have the requisites of intention or knowledge.
Consequently, they want us to strike down Section
3(3) as the same is prone to misuse.

In Kartar Singh, this Court was concerned

with the expression "abet" as defined under
Section 2(1)(a) of TADA and hence considered the
effect of different provisions of the TADA to
ascertain true meaning thereof. As the meaning
of the word "abet" as defined therein is vague and
in precise, actual knowledge or reason to believe
on the part of the person to be brought within the
definition should be brought into that provision
instead of reading down that provision. That kind
of exercise is not necessary in POTA.

Under POTA the word "abets" is not defined

at all. Section 2(1)(i) of POTA says "words and
expressions used but not defined in this Act and
defined in the Code shall have the meaning
respectively assigned to them in the Code."
According to Section 2(1)(a) of POTA "Code"
means ’Code of Criminal Procedure, 1973 (2 of
1974).’ Whereas, Section 2(y) Cr.P.C. refers to
Indian Penal Code for meaning of the word ’abets’.
Therefore, the definition of ’abets’ as appears in
the IPC will apply in a case under POTA. In order
to bring a person abetting the commission of an
offence, under the provisions of IPC it is necessary
to prove that such person has been connected
with those steps of the transactions that are
criminal. ’Mens rea’ element is sine qua non for
offences under IPC. Learned Attorney General
does not dispute this position. Therefore, the
argument advanced pertaining to the validity of
Section 3(3) citing the reason of the absence of
mens rea element stands rejected.

Section 4:

Section 4 provides for punishing a person

who is in ’unauthorised possession’ of arms or
other weapons. The petitioners argued that
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since the knowledge element is absent the
provision is bad in law. A similar issue was raised
before a Constitution Bench of this Court in
Sanjay Dutt V. State (II), (1994) 5 SCC 410.
Here this Court in Para 19 observed that:

"... Even though the word ’possession’ 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 a mental element in the concept of
possession. Accordingly, the ingredient of
’possession’ in Section 5 of the TADA Act
means conscious possession. This is how the
ingredient of possession in similar context of
statutory offence importing strict liability on
account of mere possession of an unauthorised
substance has been understood."

The finding of this Court squarely to the

effect that there exists a mental element in the
word possession itself answers the Petitioners
argument. The learned Attorney General also
maintains the stand that Section 4 presupposes
conscious possession. Another aspect pointed out
by the petitioners is about the ’unauthorized’
possession of arms and argued that unauthorized
possession could even happen; for example, by
non-renewal of license etc. In the light of Sanjay
Dutt’s case (supra) this Section presupposes
knowledge of terrorist act for possession. There is
no question of innocent persons getting punished.
Therefore, we hold that there is no infirmity in
Section 4.

Sections 6, 7, 8, 10, 11, 15, 16 and 17:

Contentions have been raised in regard to

provisions relating to seizure, attachment and
forfeiture of proceeds of terrorism.
Provisions relating to seizure, attachment
and forfeiture have to be read together. Section
2(c) of POTA sets out the meaning of ’proceeds of
terrorism’ and reads as follows:
" ’proceeds of terrorism’ shall mean all
kinds of properties which have been
derived or obtained from commission of
any terrorist act or have been acquired
through funds traceable to a terrorist act,
and shall include cash irrespective of
person in whose name such proceeds are
standing or in whose possession they are
found."

Explanation to Section 3 gives the meaning

of ’a terrorist act’ in the context of sub-section (1)
of Section 3 so as to include the act of raising
funds intended for the purpose of terrorism.
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Section 6 debars a person from holding or
possessing any proceeds of terrorism and also
makes it clear that it is liable to be forfeited.
Section 7 authorises an investigating officer, not
below the rank of Superintendent of Police with
the prior approval in writing of the Director
General of Police of the State, to seize such
property or attach the same and serve a copy of
such an order on the person concerned, if he has
reason to believe that any property in relation to
which an investigation is being conducted
represents proceeds of terrorism. Section 8
provides for forfeiture of the proceeds of terrorism
by a court irrespective of the fact whether or not
the person from whose possession it is seized or
attached is prosecuted in a Special Court for an
offence under POTA. Section 9 provides for issue
of show cause notice before forfeiture of proceeds
of terrorism and an order for forfeiture cannot be
made if such person establishes that he is a bona
fide transferee of such proceeds for value without
knowing that they represent proceeds of
terrorism. Under Section 10, an appeal lies
against an order made under Section 8 of POTA.
Sub-section (2) thereof states that where an order
made under Section 8 is modified or annulled by
the High Court, the person against whom an order
of forfeiture has been made under Section 8 is
acquitted, such property shall be returned to him
and in either case if it is not possible for any
reason to return the forfeited property, adequate
compensation should be paid to him, which will be
equivalent to the price and interest from the date
of seizure of the property. Although the
petitioners have challenged the various provisions
of POTA relating to seizure, forfeiture and
attachment of the property, ultimately they did
not pursue with that argument and submitted that
the various facets of challenge to the aforesaid
provisions can only be examined in the context of
an actual fact situation and for the present they
wanted an interpretation of the expressions used
in Section 10(2) to apply even to a case of
forfeiture of the proceeds of terrorism against a
person who is prosecuted under POTA. Even that
aspect can only be considered when an actual
situation arises and not in the abstract.
Therefore, we need not examine in detail these
provisions except to notice the background in
which these provisions have been enacted.

The order of forfeiture, by reason of Section

11, has been made independent of imposition of
other punishments to which a person may be
liable. Under Section 12, Designated Authority
has been permitted to investigate the claims made
by a third party. These provisions have to be seen
as against Section 16, which provides for
forfeiture of property of any person prosecuted
and ultimately convicted. Here only on conviction,
forfeiture of property can take place. In this
connection, it is relevant to take note of the
provisions of Sections 15, 16 and 17. Section 15
renders certain transfers to be null and void in
cases where after the issue of an order under
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Section 7 or notice under Section 9 any property
is transferred by any mode whatsoever, such
transfer shall for the purpose of the Act be ignored
and if such property is subsequently forfeited, the
transfer of such property shall be deemed to be
null and void. Section 16 enables a special court
trying a person for an offence under the Act to
pass an order that all or any of the properties,
movable or immovable or both belonging to him,
during the period of such trial, be attached, if not
already attached under the Act. On conviction of
such person, the special court may, by an order,
declare that any property, movable or immovable
or both belonging to the accused and specified in
the order, shall stand forfeited to the Central
Government or the State Government, as the case
may be. Section 17 provides that in cases where
any share of a company shall stand forfeited,
then, the company shall, on receipt of the order of
the special court, notwithstanding anything
contained in the Companies Act, 1956 or the
articles of association of the company, forthwith
register the Central Government or the State
Government, as the case may be, as the
transferee of such shares.

Funding and financing play a vital role in

fostering and promoting terrorism and it is only
with such funds terrorists are able to recruit
persons for their activities and make payments to
them and their family to obtain arms and
ammunition for furthering terrorist activities and
to sustain the campaign of terrorism. Therefore,
seizure, forfeiture and attachment of properties
are essential in order to contain terrorism and is
not unrelated to the same. Indeed, it is relevant
to notice a resolution passed by the United
Nations Security Council [Resolution No.1373
dated 28.9.2001] which emphasized the need to
curb terrorist activities by freezing and forfeiture
of funds and financial assets employed to further
terrorist activities. It will also be interesting to
notice the United Nations International Convention
for the Suppression of the Financing of Terrorism
but at the same time it is not necessary to go into
those details in the present context. The scheme
of the provisions indicate that the principles of
natural justice are duly observed and they do not
confer any arbitrary power and forfeiture can only
be made by an order of the court against which an
appeal is also provided to the High Court and the
rights of bona fide transferee are not affected.
Therefore, for the present, it is not necessary to
pronounce the constitutional validity of these
provisions and we proceed on the basis that they
are valid.

Number of changes have been made in the

provisions which existed in TADA and which exist
in POTA. The relevant discussion in the challenge
to Section 8 of TADA by majority in Kartar Singh
is contained in paras 149-157 and para 452 by
Justice Sahai who has concurred with the
majority. The validity of Section 8 of TADA was
upheld, only if it was applied in the manner
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indicated in Para 156 of the judgment which is as
under :-

"The discretionary power given to the

Designated Court under Section 8(1) and (2)
is to be exercised under strict contingencies,
namely, that (1) there must be an order of
forfeiture and that order must be in writing;
(2) the property either movable or immovable
or both must belong to the accused convicted
of any offence of TADA Act or rule thereunder;
(3) the property should be specified in the
order; (4) even though attachment can be
made under Section 8(2) during the trial of the
case, the forfeiture can be ordered only in
case of conviction and not otherwise."

However, ultimately, they do not press these

contentions to be considered in these proceedings
by stating that the various facets as set above can
really be seen in actual fact situation and for the
present, they call upon the Court to clarify that
the expression "modified" or "annulled" used in
Section 10(2) shall apply even in a case of
forfeiture of the proceeds of terrorism against a
person who is not prosecuted under POTA.

It is not necessary to interpret these

expressions and as and when an appropriate case
arises, appropriate interpretation can be given on
the said expressions. There is a scheme for
forfeiture of the proceeds of terrorism followed by
a show cause notice to be issued and thereafter
on a decision being made, an appeal lies thereto
and the order of forfeiture, by itself, will not
prevent the court from inflicting any other
punishment for which the person may be liable
under the Act. The effect of modification and
annulment of an order made by court under
Section 8 of the Act is set out in sub-section (2) of
Section 10. Therefore, as rightly submitted on
behalf of the petitioners, these aspects can
appropriately be dealt with depending upon the
fact situation arising in a given case. Therefore,
it is not necessary to express any opinion on these
aspects of the matter.

Section 14:

The constitutional validity of Section 14 is

challenged by advancing the argument that it
gives unbridled powers to the investigating officer
to compel any person to furnish information if the
investigating officer has reason to believe that
such information will be useful or relevant to the
purpose of the Act. It is pointed out that the
provision is without any checks and is amenable to
misuse by the investigating officers. It is also
argued that it does not exclude lawyers or
journalists who are bound by their professional
ethics to keep the information rendered by their
clients as privileged communication. Therefore,
the Petitioners submitted that Section 14 is
violative of Articles 14, 19, 20(3) and 21 of the
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Constitution. Learned Attorney General maintained
that the Act does not confer any arbitrary or
unguided powers; that such power is restricted to
furnish information in one’s possession in relation
to terrorist offence ’on points or matters where
the investigating officer has reason to believe (not
suspect) that such information would be useful for
or relevant to the purposes of the Act’; that this
provision is essential for the detection and
prosecution of terrorist offences; and that the
underlying rationale of the obligation to furnish
information is the salutary duty of every citizen.

Section 39 of the Code of Criminal Procedure,

1973 casts a duty upon every person to furnish
information regarding offences. Criminal justice
system cannot function without the cooperation of
people. Rather it is the duty of every body to
assist the State in detection of the crime and
bringing criminal to justice. Withholding such
information cannot be traced to right to privacy,
which itself is not an absolute right (See : Sharda
V. Dharmpal, 2003 (4) SCC 493). Right to
privacy is subservient to that of security of State.
Highlighting the necessity of people’s assistance in
detection of crime this Court observed in State of
Gujarat V. Anirudhsing, 1997 (6) SCC 514,
that:

"...It is the salutary duty of every witness who

has the knowledge of the commission of the
crime, to assist the State in giving evidence..."

Section 14 confers power to the investigating

officer to ask for furnishing information that will be
useful for or relevant to the purpose of the Act.
Further more such information could be asked
only after obtaining a written approval from an
officer not below the rank of a Superintendent of
Police. Such power to the investigating officers is
quiet necessary in the detection of terrorist
activities or terrorist.

It is settled position of law that a journalist or

lawyer does not have a sacrosanct right to
withhold information regarding crime under the
guise of professional ethics. A lawyer cannot claim
a right over professional communication beyond
what is permitted under Section 126 of the
Evidence Act. There is also no law that permits a
newspaper or journalist to withhold relevant
information from Courts though they have been
given such power by virtue of Section 15(2) of the
Press Council Act, 1978 as against Press Council.
(See also : Pandit M.S.M Sharma V. Shri Sri
Krishan Sinha, 1959 Supp (1) SCR 806, and
Sewakram Sobhani V. R.K Karanjia, 1981 (3)
SCC 208, which quoted Arnold V. King Emperor
1913-14 (41) IA 149, with approval and also
B.S.C V. Granada Television, 1981 (1) All E.R
417 (HL) and Branzburg V. Hayes, 1972 (408)
US 665). Of course the investigating officers will
be circumspect and cautious in requiring them to
disclose information. In the process of obtaining
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information, if any right of citizen is violated,
nothing prevents him from resorting to other legal
remedies.
In as much as the main purpose of Section14
of POTA is only to allow the investigating officers
to procure certain information that is necessary to
proceed with the further investigation we find
there is no merit in the argument of the
petitioners and we uphold the validity of Section
14.

Sections 18 & 19:

Sections 18 and 19 deals with the notification
and de-notification of terrorist organizations.
Petitioners submitted that under Section 18(1) of
POTA a schedule has been provided giving the
names of terrorist organization without any
legislative declaration; that there is nothing
provided in the Act for declaring organizations as
terrorist organization; that this provision is
therefore, unconstitutional as it takes away the
fundamental rights of an organization under
Articles 14, 19(1)(a) and 19(1)(c) of the
Constitution; that under Section 18(2) of the Act,
the Central Government has been given
unchecked and arbitrary powers to ’add’ or
’remove’ or ’amend’ the Schedule pertaining to
terrorist organizations; that under the Unlawful
Activities (Prevention) Act, 1967 an organization
could have been declared unlawful only after the
Central Government has sufficient material to
form an opinion and such declaration has to be
made by a Notification wherein grounds have to
be specified for making such declaration: that
therefore such arbitrary power is violative of
Articles 14, 19 and 21 of the Constitution.
Pertaining to Section 19 the main allegation is that
it excessively delegates power to Central
Government in the appointment of members to
the Review Committee and they also pointed out
that the inadequate representation of judicial
members will affect the decision-making and
consequently it may affect the fair judicial
scrutiny; that therefore Section 19 is not
constitutionally valid.

The Learned Attorney General contended that

there is no requirement of natural justice which
mandates that before a statutory declaration is
made in respect of an organization which is listed
in the schedule a prior opportunity of hearing or
representation should be given to the affected
organization or its members: that the rule of audi
alteram partem is not absolute and is subject to
modification; that in light of post-decisional
hearing remedy provided under Section 19 and
since the aggrieved persons could approach the
Review Committee there is nothing illegal in the
Section; that furthermore the constitutional
remedy under Articles 226 and 227 is also
available; that therefore, having regard to the
nature of the legislation and the magnitude and
prevalence of the evil of terrorism cannot be said
to impose unreasonable restrictions on the
Fundamental Rights under Article 19(1)(c) of the
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Constitution.

The right of citizens to form association or

union that is guaranteed by Article 19(1)(c) of the
Constitution is subject to the restriction provided
under Article 19(4) of the Constitution. Under
Article 19(4) of the Constitution the State can
impose reasonable restrictions, inter alia, in the
interest of sovereignty and integrity of the
country. POTA is enacted to protect sovereignty
and integrity of India from the menace of
terrorism. Imposing restriction under Article 19(4)
of the Constitution also includes declaring an
organization as a terrorist organization as
provided under POTA. Hence Section 18 is not
unconstitutional.

It is contended that before making the

notification whereby an organization is declared as
a terrorist organization there is no provision for
pre-decisional hearing. But this cannot be
considered as a violation of audi alteram partem
principle, which itself is not absolute. Because in
the peculiar background of terrorism it may be
necessary for the Central Government to declare
an organization as terrorist organization even
without hearing that organization. At the same
time under Section 19 of POTA the aggrieved
persons can approach the Central Government
itself for reviewing its decision. If they are not
satisfied by the decision of the Central
Government they can subsequently approach
Review Committee and they are also free to
exercise their Constitutional remedies. The post-
decisional remedy provided under POTA satisfies
the audi alteram partem requirement in the
matter of declaring an organization as a terrorist
organization. (See: Mohinder Singh Gill V. Chief
Election Commissioner, 1978 (1) SCC 405;
Swadeshi Cotton Mills V. Union of India, 1981
(1) SCC 664; Olga Tellis V. Bombay Municipal
Corporation, 1985 (3) SCC 545; Union of India
V. Tulsiram Patel, 1985 (3) SCC 398).
Therefore, the absence of pre-decisional hearing
cannot be treated as a ground for declaring
Section 18 as invalid.
It is urged that Section 18 or 19 is invalid
based on the inadequacy of judicial members, in
the Review Committee. As per Section 60,
Chairperson of the Review Committee will be a
person who is or has been a Judge of High Court.
The mere presence of non-judicial members by
itself cannot be treated as a ground to invalidate
Section 19. (See: Kartar Singh’ case (supra) at
page 683, para 265 of SCC).
As regards the reasonableness of the
restriction provided under Section 18, it has to be
noted that the factum of declaration of an
organization as a terrorist organization depends
upon the ’belief’ of Central Government. The
reasonableness of the Central Government’s
action has to be justified based on material facts
upon which it formed the opinion. Moreover the
Central Government is bound by the order of the
Review Committee. Considering the nature of
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legislation and magnitude or presence of
terrorism, it cannot be said that Section 18 of
POTA imposes unreasonable restrictions on
fundamental right guaranteed under Article
19(1)(c) of the Constitution. We uphold the
validity of Sections 18 and 19.

Sections 20, 21 & 22:

Petitioners assailed Sections 20, 21 and 22

mainly on the ground that no requirement of mens
rea for offences is provided in these Sections and
the same is liable to misuse therefore it has to be
declared unconstitutional. The Learned Attorney
General argued that Section 21 and its various
sub-sections are penal provisions and should be
strictly construed both in their interpretation and
application; that on a true interpretation of the Act
having regard to the well settled principles of
interpretation Section 21 would not cover any
expression or activity which does not have the
element or consequence of furthering or
encouraging terrorist activity or facilitating its
commission; that support per se or mere
expression of sympathy or arrangement of a
meeting which is not intended or designed and
which does not have the effect to further the
activities of any terrorist organization or the
commission of terrorist acts are not within the
mischief of Section 21 and hence is valid.

Here the only point to be considered is

whether these Sections exclude mens rea element
for constituting offences or not. At the outset it
has to be noted that Sections 20, 21 and 22 of
POTA is similar to that of Sections 11, 12 and 15
of the Terrorism Act, 2000 of United Kingdom.
Such provisions are found to be quite necessary
all over the world in anti-terrorism efforts.
Sections 20, 21 and 22 are penal in nature that
demand strict construction. These provisions are a
departure from the ordinary law since the said law
was found to be inadequate and not sufficiently
effective to deal with the threat of terrorism.
Moreover, the crime referred to herein under
POTA is aggravated in nature. Hence special
provisions are contemplated to combat the new
threat of terrorism. Support either verbal or
monetary, with a view to nurture terrorism and
terrorist activities is causing new challenges.
Therefore Parliament finds that such support to
terrorist organizations or terrorist activities need
to be made punishable. Viewing the legislation in
its totality it cannot be said that these provisions
are obnoxious.

But the Petitioners apprehension regarding

the absence of mens rea in these Sections and the
possibility of consequent misuse needs our
elucidation. It is the cardinal principle of criminal
jurisprudence that mens rea element is necessary
to constitute a crime. It is the general rule that a
penal statute presupposes mens rea element. It
will be excluded only if the legislature expressly
postulate otherwise. It is in this context that this
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Court said in Kartar Singh’s case (supra) (at
page 645 para 115 of SCC) that:
"Unless a statue either expressly or by
necessary implication rules out ’mens rea’ in
case of this kind, the element of mens rea
must be read into the provision of the statute."

Mens rea by necessary implication could be

excluded from a statue only where it is absolutely
clear that the implementation of the object of the
Statue would otherwise be defeated. Here we
need to find out whether there are sufficient
grounds for inferring that Parliament intended to
exclude the general rule regarding mens rea
element. (See: State of Maharashtra V. M H
George, AIR 1965 SC 722, Nathulal V. State of
MP, AIR 1966 SC 43, Inder Sain V. State of
Punjab, (1973) 2 SCC 372, for the general
principles concerning the exclusion or inclusion of
mens rea element vis-‘-vis a given statute). The
prominent method of understanding the legislative
intention, in a matter of this nature, is to see
whether the substantive provisions of the Act
requires mens rea element as a constituent
ingredient for an offence. Offence under Section
3(1) of POTA will be constituted only if it is done
with an -’intent’. If Parliament stipulates that the
’terrorist act’ itself has to be committed with the
criminal intention, can it be said that a person who
’profess’ (as under Section 20) or ’invites support’
or ’arranges, manages, or assist in arranging or
managing a meeting’ or ’addresses a meeting’ (as
under Section 21) has committed the offence if he
does not have an intention or design to further the
activities of any terrorist organization or the
commission of terrorist acts? We are clear that it
is not. Therefore, it is obvious that the offence
under Section 20 or 21 or 22 needs positive
inference that a person has acted with intent of
furthering or encouraging terrorist activity or
facilitating its commission. In other words, these
Sections are limited only to those activities that
have the intent of encouraging or furthering or
promoting or facilitating the commission of
terrorist activities. If these Sections are
understood in this way, there cannot be any
misuse. With this clarification we uphold the
constitutional validity of Sections 20, 21 and 22.

Section 27:
Under Section 27, a police officer
investigating a case can seek a direction through
the Court of Chief Judicial Magistrate or the Court
of a Chief Metropolitan Magistrate for obtaining
samples of handwriting, finger prints, foot-prints,
photographs, blood, saliva, semen, hair, voice of
any accused person reasonably suspected to be
involved in the commission of an offence under
the Act. The Court can also draw adverse
inference if an accused refuses to do so.
Petitioners argued that this Section falls foul
of Articles 14, 20(3) and 21 of the Constitution for
the reason: that no power has been left with the
Court to decide whether the request for samples
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from a suspect person sought for by investigating
office is reasonable or not; that no power has
been given to the Court to refuse the request of
the investigating officer; that it is not obligatory
for the Court to record any reason while allowing
the request; and that the Section is a gross
violation of Article 20(3) because it amounts to
compel a person to give evidence against himself.
Relying mainly on State of Bombay V. Kathi
Kalu Oghad, 1962 (3) SCR 10, learned Attorney
General submitted that the argument pertaining to
the violation of Article 20(3) is not sustainable.
We do not think, as feared by the Petitioner,
that this Section fixes a blanket responsibility
upon the Court to grant permission immediately
upon the receipt of a request. Upon a close
reading of the Section it will become clear that
upon a ’request’ by an investigating police officer
it shall only ’be lawful’ for the Court to grant
permission. Nowhere it is stated that the Court will
have to positively grant permission upon a
request. It is very well within the ambit of Court’s
discretion. If the request is based on wrong
premise, the Court is free to refuse the request.
This discretionary power granted to the Court
presupposes that the Court will have to record its
reasoning for allowing or refusing a request.
Pertaining to the argument that the Section per se
violates Article 20(3), it has to be noted that a
bench consisting of 11 judges in Kathi Kalu
Oghad’s case (supra) have looked into a similar
situation and it is ruled therein (at pages 30 -32)
that:
"...The giving of finger impression or of
specimen signature or of handwriting, strictly
speaking, is not ’to be a witness’...when an
accused person is called upon by the Court or
any other authority holding an investigation to
give his finger impression or signature or any
specimen of his handwriting, he is not giving
any testimony to the nature of a personal
testimony. The giving of a personal testimony
must depend upon his volition. He can make
any kind of statement or may refuse to make
any statement. But his finger impressions or
his handwriting, in spite of efforts at concealing
the true nature of it by dissimulation cannot
change their intrinsic character. Thus the
giving of finger impression or of specimen
writing or of signatures by an accused person,
though it may amount to furnishing evidence in
the larger sense, is not included within the
expression ’to be a witness’...

...They are only materials for comparison in

order to lend assurance to the Court that its
inference based on other pieces of evidence is
reliable..."
(Emphasis Supplied)

This being the position in law, the argument

of the Petitioners pertaining to the violation of
Article 20(3) is not sustainable. It is meaningful to
look into Section 91 of Cr. PC that empowers a
criminal court as also a police officer to order any
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person to produce a document or other thing in
his possession for the purpose of any inquiry or
trial. (See: Shyamlal Mohanlal V. State of
Gujarat, AIR 1961 SC 1808, in this regard).
Moreover, this Section is only a step in aid for
further investigation and the samples so obtained
can never be considered as conclusive proof for
conviction. Consequently we uphold the
constitutional validity of Section 27.

Section 30:
Section 30 contains provision for the
protection of witness. It gives powers to the
Special Court to hold proceedings in camera and
to taking measures for keeping the identity of
witness secret.
Petitioners challenged the constitutional
validity of this Section by leveling the argument;
that the right to cross-examine is an important
part of fair trial and principles of natural justice
which is guaranteed under Article 21; that even
during emergency fundamental rights under
Article 20 and 21 cannot be taken away; that
Section 30 is in violation of the dictum in Kartar
Singh’s case (supra) because it does not contain
the provision of disclosure of names and identities
of the witness before commencement of trial; that
fair trial includes the right for the defence to
ascertain the true identity of an accuser; that
therefore the same has to be declared
unconstitutional. Learned Attorney General
submitted that such provisions or exercise of such
powers are enacted to protect the life and liberty
of a person who is able and willing to give
evidence in prosecution of grave criminal offences;
that the Section is not only in the interest of
witness whose life is in danger but also in the
interest of community which lies in ensuring that
heinous offences like terrorist acts are effectively
prosecuted and punished; that if the witnesses are
not given immunity they would not come forward
to give evidence and there would be no effective
prosecution of terrorist offences and the entire
object of the Act would be frustrated; that cross-
examination is not a universal or indispensable
requirement of natural justice and fair trial; that
under compelling circumstances it can be
dispensed with natural justice and fair trial can be
evolved; that the Section requires the Court to be
satisfied that the life of witness is in danger and
the reasons for keeping the identity of the witness
secret are required to be recorded in writing; that,
therefore, it is reasonable to hold that the Section
is necessary for the operation of the Act.
Section 30 of POTA is similar to Section 16 of
TADA, the constitutional validity of which was
upheld by this Court in Kartar Singh’s case
(supra) (see pages 683 - 689 of SCC). In order to
decide the constitutional validity of Section 30 we
don’t think it is necessary to go into the larger
debate, which learned Counsel for both sides have
argued, that whether right to cross-examine is
central to fair trial or not. Because right to cross-
examination per se is not taken away by Section
30. This Section only confers discretion to the
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concerned Court to keep the identity of witness
secret if the life of such witness is in danger. We
cannot shy away from the unpleasant reality that
often witnesses do not come forward to depose
before Court even in serious cases. This
precarious situation creates challenges to our
criminal justice administration in general and
terrorism related cases in particular. Witnesses do
not volunteer to give evidence mainly due to the
fear of their life. Ultimately, the non-conviction
affects the larger interest of community, which lies
in ensuring that the executors of heinous offences
like terrorist acts are effectively prosecuted and
punished. Legislature drafted Section 30 by taking
all these factors into account. In our view a fair
balance between the rights and interest of
witness, rights of accused and larger public
interest has been maintained under Section 30. It
is also aimed to assist the State in justice
administration and encourage others to do the
same under the given circumstances. Anonymity
of witness is not general rule under Section 30.
Identity will be withheld only in exceptional
circumstance when the Special Court is satisfied
that the life of witness is in jeopardy. Earlier this
Court has endorsed similar procedure. (See:
Gurbachan Singh V. State of Bombay, 1952
SCR 737, Hira Nath Mishra V. Principal,
Rajendra Medical College, 1973 (1) SCC 805,
A. K. Roy V. Union of India, 1982 (1) SCC 271).
While deciding the validity of Section 16 of TADA,
this Court quoted all these cases with approval.
(See also the subsequent decision in Jamaat-e-
Islami Hind V. Union of India, 1995 (1) SCC
428.

The need for the existence and exercise of

power to grant protection to a witness and
preserve his or her anonymity in a criminal trial
has been universally recognised. Provisions of
such nature have been enacted to protect the life
and liberty of the person who is able and willing to
give evidence in support of the prosecution in
grave criminal cases. A provision of this nature
should not be looked at merely from the angle of
protection of the witness whose life may be in
danger if his or her identity is disclosed but also in
the interest of the community to ensure that
heinous offences like terrorist acts are effectively
prosecuted and punished. It is a notorious fact
that a witness who gives evidence which is
unfavourable to an accused in a trial for terrorist
offence would expose himself to severe reprisals
which could result in death or severe bodily injury
or that of his family members. If such witnesses
are not given appropriate protection, they would
not come forward to give evidence and there
would be no effective prosecution of terrorist
offences and the entire object of the enactment
may possibly be frustrated. Under compelling
circumstances this can be dispensed with by
evolving such other mechanism, which complies
with natural justice and thus ensures a fair trial.
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The observations made in this regard by this
Court in the decisions to which we have adverted
to earlier have been noticed by this Court in
Kartar Singh’s case (supra) and has upheld the
validity of a similar provision subject, of course, to
certain conditions which form part of Section 30
now. The present position is that Section 30(2)
requires the court to be satisfied that the life of a
witness is in danger to invoke a provision of this
nature. Furthermore, reasons for keeping the
identity and address of a witness secret are
required to be recorded in writing and such
reasons should be weighty. In order to safeguard
the right of an accused to a fair trial and basic
requirements of the due process a mechanism can
be evolved whereby the special court is obligated
to satisfy itself about the truthfulness and
reliability of the statement or disposition of the
witness whose identity is sought to be protected.

Our attention has been drawn to legal

position in USA, Canada, New Zealand, Australia
and UK as well as the view expressed in the
European Court of Human Rights in various
decisions. However, it is not necessary to refer
any of them because the legal position has been
fully set out and explained in Kartar Singh and
provision of POTA in Section 30 clause (2) has
been modelled on the guidelines set out therein.
We may further notice that the effort of the court
has been to balance the right of the witness as to
his life and liberty and the right of community in
effective prosecution of heinous criminal offences
with the right of the accused to a fair trial. This is
done by devising a mechanism or arrangement to
preserve anonymity of the witness when there is
an identifiable threat to the life or physical safety
of the witness or others whereby the court
satisfies itself about the weight to be attached to
the evidence of the witness. In some jurisdictions
an independent counsel has been appointed for
the purpose to act as amicus curie and after going
through the deposition evidence assist the court in
forming an opinion about the weight of the
evidence in a given case or in appropriate cases to
be cross-examined on the basis of the questions
formulated and given to him by either of the
parties. Useful reference may be made in this
context to the recommendations of the Law
Commission of New Zealand.

The necessity to protect the identity of the

witness is not a factor that can be determined by
a general principle. It is dependent on several
factors and circumstances arising in a case and,
therefore, the Act has left the determination of
such question to an appropriate case.

Keeping secret the identity of witness,

though in the larger interest of public, is a
deviation from the usual mode of trial. In
extraordinary circumstances we are bound to take
this path, which is less travelled. Here the Special
Courts will have to exercise utmost care and
caution to ensure fair trial. The reason for keeping
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 31
identity of the witness has to be well
substantiated. It is not feasible for us to suggest
the procedure that has to be adopted by the
Special Courts for keeping the identity of witness
secret. It shall be appropriate for the concerned
Courts to take into account all the factual
circumstances of individual cases and to forge
appropriate methods to ensure the safety of
individual witness. With these observations we
uphold the validity of Section 30.

Section 32:
This Section made it lawful of certain
confessions made to police officers to be taken
into consideration.
Concerning the validity and procedural
difficulties that could arise during the process of
recording confessions the Petitioners submitted
that there is no need to empower the police to
record confession since the accused has to be
produced before the Magistrate within forty-eight
hours, in that case magistrate himself could record
the confession; that there is no justification for
extended time limit of forty eight hours for
producing the person before Magistrate; that it is
not clear in the Section whether the confession
recorded by the police officer will have the validity
after Magistrate has recorded the fact of torture
and has sent the accused for medical
examination; that it is not clear as to whether
both the confession before the police officer as
well as confession statement before the Magistrate
shall be used in evidence; that the Magistrates
cannot be used for mechanically putting seal of
approval on the confessional statements by the
police; that, therefore, the Section has to be
nullified. Validity of this Section was defended by
the learned Attorney General by forwarding the
arguments that the provisions relating to the
admissibility of confessional statements, which is
similar to that of Section 32 in POTA was upheld in
Kartar Singh’s case (supra); that the provisions
of POTA are an improvement of TADA by virtue of
enactment of Section 32(3) to 32(5); that the
general principles of law regarding the
admissibility of a confessional statement is
applicable under POTA; that the provision which
entails the Magistrate to test and examine the
voluntariness of a confession and complaint of
torture is an additional safeguard and does not in
any manner inject any constitutional infirmity;
that there cannot be perennial distrust of the
police; that Parliament has taken into account all
the relevant factors in its totality and same is not
unjust or unreasonable.
At the outset it has to be noted that the
Section 15 of TADA that was similar to this Section
was upheld in Kartar Singh’s case (supra) (pages
664-683 of SCC). While enacting this Section
Parliament has taken into account of all the
guidelines, which were suggested by this Court in
Kartar Singh’s case (supra). Main allegation of
the Petitioners is that there is no need to empower
the police to record confession since the accused
has to be produced before the Magistrate within
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 31
forty-eight hours in which case the Magistrate
himself could record the statement or confession.
In the context of terrorism the need for making
such a provision so as to enable Police officers to
record the confession was explained and upheld
by this Court in Kartar Singh’s case (supra)
(page 680 para 253 of SCC). We need not go into
that question at this stage. If the recording of
confession by police is found to be necessary by
Parliament and if it is in tune with the scheme of
law, then an additional safeguard under Section
32 (4) and (5) is a fortiori legal. In our considered
opinion the provision that requires producing such
a person before the Magistrate is an additional
safeguard. It gives that person an opportunity to
rethink over his confession. Moreover, the
Magistrate’s responsibility to record the statement
and the enquiry about the torture and provision
for subsequent medical treatment makes the
provision safer. It will deter the police officers
from obtaining a confession from an accused by
subjecting him to torture. It is also worthwhile to
note that an officer who is below the rank of a
Superintendent of Police cannot record the
confession statement. It is a settled position that
if a confession was forcibly extracted, it is a nullity
in law. Non-inclusion of this obvious and settled
principle does not make the Section invalid. (See :
Kartar Singh’s case (supra) page 678, para 248
- 249 of SCC). Ultimately, it is for the concerned
Court to decide the admissibility of the confession
statement. (See : Kartar Singh’s case (supra)
page 683, para 264 of SCC). Judicial wisdom will
surely prevail over irregularity, if any in the
process of recording confessional statement.
Therefore we are satisfied that the safeguards
provided by the Act and under the law is adequate
in the given circumstances and we don’t think it is
necessary to look more into this matter.
Consequently we uphold the validity of Section 32.

Section 49:

Section 49 mainly deals with procedure for

obtaining bail for an accused under POTA.
Petitioners’ main grievance about this Section
is that under Section 49(7) a Court could grant
bail only if it is satisfied that there are grounds for
believing that an accused ’is not guilty of
committing such offence’, since such a satisfaction
could be attained only after recording of evidence
there is every chance that the accused will be
granted bail only after minimum one year of
detention; that the proviso to Section 49(7),
which is not there under TADA, makes it clear that
for one year from the date of detention no bail
could be granted; that this Section has not
incorporated the principles laid down by this Court
in Sanjay Dutt’s case (supra) (at page 439 para
43-48 of SCC) wherein it is held that if a challan is
not filed after expiry of 180 days or extended
period, the indefeasible right of an accused to be
released on bail is ensured, provided that the
same is exercised before filing of challan; that the
prosecution is curtailing even this right under
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 31
POTA. Therefore, the petitioners want us to make
the Section less stringent according to the settled
principles of law. Learned Attorney General
submitted that the provisions regarding bail are
not onerous nor do they impose any excessive
burden or restriction on the right of the accused;
that similar provisions are found in Section 37 of
the NDPS Act 1985 and in Section 10 of the UP
Dacoity Affected Areas Act; that on a true
construction of Section 49(6) and (7) it is not
correct to conclude that the accused cannot apply
for bail at all for a period of one year; that the
right of the accused to apply for bail during the
period of one year is not completely taken away;
that the stringent provision of bail under Section
49(7) would apply only for the first one year of
detention and after its expiry the normal bail
provisions under Cr.P.C. would apply; that there is
no dispute that the principle laid down by this
Court in D.K Basu V. State of West Bengal,
1997 (1) SCC 416, will apply; that in the light of
effective safeguards provided in the Act and
effective remedies against adverse orders there is
no frailty in Section 49.

Section 49 of the Act is similar to that of

Section 20 of TADA, constitutional validity of
which has been upheld by this Court in Kartar
Singh’s case (supra) (pages 691-710 of SCC).
Challenge before us is limited to the interpretation
of Section 49(6) and (7). By virtue of Section
49(8), the powers under Section 49 (6) and (7)
pertaining to bail is in addition to and not in
derogation to the powers under the Code or any
other law for the time being in force on granting of
bail. The offences under POTA are more complex
than that of ordinary offences. Usually the overt
and covert acts of terrorism are executed in a
chillingly efficient manner as a result of high
conspiracy, which is invariably linked with anti-
national elements both inside and outside the
country. So an expanded period of detention is
required to complete the investigation. Such a
comparatively long period for solving the case is
quite justifiable. Therefore, the investigating
agencies may need the custody of accused for a
longer period. Consequently, Section 49 (6) and
(7) are not unreasonable. In spite of this, bail
could be obtained for an accused booked under
POTA if the ’court is satisfied that there are
grounds for believing that he is not guilty of
committing such offence’ after hearing the Public
Prosecutor. It is the general law that before
granting the bail the conduct of accused seeking
bail has to be taken into account and evaluated in
the background of nature of crime said to have
committed by him. That evaluation shall be based
on the possibility of his likelihood of either
tampering with the evidence or committing the
offence again or creating threat to the society.
Since the satisfaction of the Court under Section
49(7) has to be arrived based on the particular
facts and after considering the abovementioned
aspects, we don not think the unreasonableness
attributed to Section 49(7) is fair. (See: Kartar
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 31
Singh’s case (supra) page 707, para 349-352 of
SCC).

Proviso to Section 49(7) reads as under:

"Provided that after the expiry of a period of

one year from the date of detention of the
accused for an offence under this Act, the
provisions of sub-section (6) of this Section
shall apply."

It is contended that this proviso to Section

49(7) of POTA is read by some of the courts as a
restriction on exercise of power for grant of bail
under Section 49(6) of POTA and such power
could be exercised only after the expiry of the
period of one year from the date of detention of
the accused for offences under POTA. If the
intention of the legislature is that an application
for bail cannot be made prior to expiry of one year
after detention for offences under POTA, it would
have been clearly spelt out in that manner in
Section 49(6) itself. Sections 49(6) and 49(7) of
POTA have to be read together and the combined
reading of these two sections is to the effect that
Public Prosecutor has to be given an opportunity
of being heard before releasing the accused on
bail and if he opposes the application, the court
will have to be satisfied that there are grounds for
believing that he is not guilty of having committed
such offence. It is by way of exception to Section
49(7) that proviso is added which means that
after the expiry of one year after the detention of
the accused for offences under POTA, the accused
can be released on bail after hearing the Public
Prosecutor under ordinary law without applying
the rigour of Section 49(7) of POTA. It also
means that the accused can approach the court
for bail subject to conditions of Section 49(7) of
POTA within a period of one year after the
detention for offences under POTA.

Proviso to Section 49(7) provides that the

condition enumerated in sub-section (6) will apply
after the expiry of one-year. There appears to be
an accidental omission or mistake of not including
the word ’not’ after the word ’shall’ and before the
word ’apply’. Unless such a word is included, the
provision will lead to an absurdity or become
meaningless. Even otherwise, read appropriately,
the meaning of the proviso to Section 49(7) is that
an accused can resort to ordinary bail procedure
under the Code after that period of one year. At
the same time, proviso does not prevent such an
accused to approach the Court for bail in
accordance with the provisions of POTA under
Section 49(6) and (7) thereof. This interpretation
is not disputed by the learned Attorney General.
Taking into account of the complexities of the
terrorism related offences and intention of
Parliament in enacting a special law for its
prevention, we do not think that the additional
conditions regarding bail under POTA are
unreasonable. We uphold the validity of Section
49.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 31
There is no challenge to any other provisions
of the Act.
In the result, these petitions stand dismissed
subject, however, to the clarifications that we
have set out above on the interpretation of the
provisions of the enactment while dealing with the
constitutionality thereof.

W.P.(Crl.) 129/2002 :
A case was registered against the petitioner
under Section 13(1)(a) of the Unlawful Activities
Prevention Act, 1967, Section 21(2) and (3) of the
Prevention of Terrorism Act, 2002 (POTA) read
with Sections 109 and 120B of the Indian Penal
Code on 4.7.2002. When the petitioner returned
to Chennai from Chicago on 11.7.2002, he was
arrested at the Chennai Airport and was produced
before a Judicial Magistrate, Madurai on
12.7.2002. He had been remanded. He has been
detained in jail since then pursuant to the remand
order of the Judicial Magistrate, Madurai. A
notification was issued constituting Special Court,
Chennai at Poonamallee for trial of the offences
under POTA. The petitioner was produced before
the Special Court on 7.8.2002 and he has been
continued to be remanded to jail from time to
time. On 9.10.2002, his remand has been
extended beyond the period of 90 days.
In this case, though several questions have
been raised, two questions have been specifically
urged, namely :
(1) Whether Section 21(1) and (3) of the
Prevention of Terrorism Act, 2002 are
offending Article 19(1)(a) and 19(1)(c) of the
Constitution of India and therefore
unconstitutional?
(2) Does the mere expression of sympathy for
Tamils in Sri Lanka for whom the Liberation
of Tigers of Tamil Eelam has become the
sole-representative recognised by the
International Community amount to support
to a terrorist organisation under the
Prevention of Terrorism Act, 2002 thereby
empower the State to curtail the personal
liberty?

We have upheld the constitutional validity of

Section 21 of POTA in the decision pronounced by
us in Writ Petition (C) No. 389 of 2002 above and,
therefore, the first question does not survive for
consideration.
So far as the second question is concerned,
we have heard Shri F.S. Nariman and Shri Anil B.
Divan, learned senior counsel appearing for the
petitioner, apart from Shri Rajinder Sachhar and
Shri B.S. Malik, the learned senior counsel
appearing for the petitioner in connected matters,
on the interpretation of Section 21 of POTA. Shri
P.P. Rao, appearing for the State of Tamil Nadu,
has made elaborate submissions and adverted to
various affidavits filed by the Union of India.
However, it is not necessary for us to examine any
of these aspects in these proceedings. We have
carefully considered the arguments advanced by
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 31
the learned counsel and that of the learned
Attorney General for India on this aspect of the
matter. We think, the proper course that has to
be adopted in a case of this nature where a
criminal case has already been lodged and the
same is pending consideration before the Special
Court, it would not be appropriate for us to
express our views on the question of facts arising
in this case. We are sure that the Special Court
will decide the matter in the light of decision
pronounced by us in Writ Petition (C) No. 389 of
2002 above.
The writ petition is disposed of with aforesaid
observations.

W.P.(Crl.) 28/2003 :
The petitioner in this writ petition seeks for
declaration that Section 21(2) and the proviso to
Section 49(6) and 49(7) of POTA are illegal and
ultra vires the Constitution of India.
Inasmuch as we have upheld the
constitutional validity of Section 21(2) and proviso
to Section 49(6) and 49(7) of POTA in the
judgment pronounced by us in Writ Petition (C)
No. 389 of 2002 above, this writ petition is
dismissed.

W.P.(Crl.) 48/2003 :

In this writ petition, apart from challenging

the constitutional validity of Sections 1(4), 3 to 9,
14, 18 to 24, 26, 27, 29 to 33, 36 to 53 which has
been upheld by us in the judgment pronounced by
us in Writ Petition (C) No. 389 of 2002 above, the
constitutional validity of Entry 21 of the Schedule
to POTA is also challenged.

On that aspect no specific arguments have

been addressed by any of the parties. This matter
will have to be heard separately and hence, this
writ petition is de-linked from other matters.

Appeal (civil)#Appeal (civil) 4051 of 1996#1996#M/s Pepsi Foods Limited

#Collector of Central Excise, Chandigarh

#2003-11-25#25622# 4051#P. VENKATARAMA REDDI # Dr. AR. LAKSHMANAN.
###
Appeal (crl.)#Appeal (crl.) 104-106 of 2003#2003#Bikau Pandey and Ors.

#State of Bihar
#2003-11-25#25623# 104-106#DORAISWAMY RAJU # ARIJIT PASAYAT.
###

Appeal (civil)#Appeal (civil) 10906 of 1996#1996#Shanti Kumar Panda

#Shakutala Devi
#2003-11-03#25624# 10906#R.C. LAHOTI # ASHOK BHAN.
###

Appeal (civil)#Appeal (civil) 11483 of 1996#1996#Amrendra Pratap Singh

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 31
#Tej Bahadur Prajapati & Ors.
#2003-11-21#25625# 11483#R.C. LAHOTI # ASHOK BHAN.
###
Appeal (civil)#Appeal (civil) 9130 of 2003#2003#Ameer Trading Corporation Ltd.

#Shapoorji Data Processing Ltd.

#2003-11-18#25626# 9130#CJI# S.B. Sinha # AR. Lakshmanan.
##
Appeal (civil)#Appeal (civil) 14178-14184 of 1996#1996#Brij Behari Sahai (Dead) through L.R
s., etc. etc.
#State of Uttar Pradesh #2003-11-28#25627# 14178-14184#Do
raiswamy Raju # Arijit Pasayat.
###
Appeal (crl.)#Appeal (crl.) 1968 of 1996#1996#Goa Plast (P) Ltd.

#Chico Ursula D’Souza

#2003-11-20#25628# 1968#B.P. Singh # Dr. AR. Lakshmanan
###
Writ Petition (crl.)#Writ Petition (crl.) 199 of 2003#2003#Ashok Kumar Pandey
#The State of West Bengal
#2003-11-18#25629# 199#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Appeal (crl.)#Appeal (crl.) 20 of 2003#2003#Surendra Paswan

#State of Jharkhand
#2003-11-28#25630# 20#DORAISWAMY RAJU # ARIJIT PASAYAT.
###

Appeal (crl.)#Appeal (crl.) 278 of 1997#1997#Vidyadharan

#State of Kerala
#2003-11-14#25631# 278#DORAISWAMY RAJU # ARIJIT PASAYAT.
###

Appeal (crl.)#Appeal (crl.) 292 of 1997#1997#State of Madhya Pradesh.

#Awadh Kishore Gupta and Ors.
#2003-11-18#25632# 292#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
###State of Punjab & Anr.
#M/s Devans Modern Brewaries Ltd. & Anr.
#2003-11-20#25633##CJI.# R.C. Lahoti # Dr. AR. Lakshmanan.
##

Appeal (crl.)#Appeal (crl.) 331 of 1997#1997#Shriram

#State of Madhya Pradesh

#2003-11-24#25634# 331#DORAISWAMY RAJU # ARIJIT PASAYAT.
###

Appeal (civil)#Appeal (civil) 3630-3631 of 2003#2003#The Prohibition & Excise Supdt., A.P.
& Ors.
#Toddy Tappers Coop. Society, Marredpally & Ors. #2003-11-17#25635# 3630-3631#CJI.
#Dr. AR. Lakshmanan
###
Appeal (crl.)#Appeal (crl.) 371-372 of 2003#2003#Ram Dular Rai & Ors.

#State of Bihar
#2003-11-27#25636# 371-372#S.B. Sinha.
####

Appeal (civil)#Appeal (civil) 4075-4081 of 1998#1998#Nair Service Society

#Dist. Officer, Kerala Public Service Commission & Ors.

#2003-11-17#25637# 4075-4081#CJI. # Dr. AR. Lakshmanan.
###
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 31
Appeal (civil)#Appeal (civil) 4698-4700 of 1994#1994#State of U.P. & Ors.

#Lalji Tandon (Dead)

#2003-11-03#25638# 4698-4700#R.C. LAHOTI # ASHOK BHAN
###
Appeal (crl.)#Appeal (crl.) 506 of 1997#1997#State of Karnataka

#Puttaraja
#2003-11-27#25639# 506#DORAISWAMY RAJU # ARIJIT PASAYAT.
###

Appeal (crl.)#Appeal (crl.) 519-521 of 2003#2003#Goura Venkata Reddy

Vs.
#State of Andhra Pradesh
#2003-11-19#25640# 519-521#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Appeal (crl.)#Appeal (crl.) 530-531 of 2003#2003#Bhargavan & Ors.

#State of Kerala
#2003-11-17#25641# 530-531#DORAISWAMY RAJU # ARIJIT PASAYAT.
###

Appeal (civil)#Appeal (civil) 7371 of 2002#2002#N.D. Thandani (Dead) By Lrs.

#Arnavaz Rustom Printer & Anr.

#2003-11-24#25642# 7371#R.C. LAHOTI # ASHOK BHAN.
###
Appeal (civil)#Appeal (civil) 9205-07 of 2003#2003#The Land Acquisition Officer, Nizamabad,
District, Andhra Pradesh
#Nookala Rajamallu and Ors.
#2003-11-21#25643# 9205-07#DORAISWAMY RAJU # ARIJIT PASAYAT.
###
Transfer Petition (crl.)#Transfer Petition (crl.) 77-78 of 2003#2003#K. Anbazhagan

#The Superintendent of Police & ors.

#2003-11-18#25644# 77-78#S.N. VARIAVA # H.K. SEMA.
###
Appeal (civil)#Appeal (civil) 7868 of 1995#1995#ITW Signode India Ltd.

#Collector of Central Excise

#2003-11-19#25645# 7868#CJI# S.B. Sinha # Dr. AR. Lakshmanan.
##
Appeal (civil)#Appeal (civil) 857 of 1998#1998#Shyam Singh
#Daryao Singh (dead) by Lrs. & Ors
#2003-11-19#25646# 857#Shivaraj V. Patil # D.M. Dharmadhikari.
###

Appeal (civil)#Appeal (civil) 3630-3631 of 2003#2003#Prohibition & Excise Supdt. A.P. & Ors
.
#Toddy Tappers Coop. Society, Marredpally & Ors.

#2003-11-17#25647# 3630-3631#S.B. Sinha

####
Appeal (civil)#Appeal (civil) 62-65 of 1999#1999#Pramod K. Pankaj

#State of Bihar and Ors.

#2003-11-20#25648# 62-65#CJI# # S.B. Sinha.
##

Appeal (civil)#Appeal (civil) 8232 of 1996#1996#Hindustan Lever & Anr.

#State of Maharashtra & Anr.

#2003-11-18#25649# 8232#R.C. Lahoti # Ashok Bhan.
###
Appeal (civil)#Appeal (civil) 5337-5339 of 1999#1999#Manager, Nirmala Senior, Secondary Sch
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ool, Port Blair
#N.I. Khan & Ors.
#2003-11-21#25650# 5337-5339#SHIVARAJ V. PATIL # ARIJIT PASAYAT.
###
Appeal (civil)#Appeal (civil) 9131 of 2003#2003#Rekha Mukherjee

#Ashish Kumar Das & Anr.

#2003-11-18#25651# 9131#CJI# S.B. Sinha # Dr. AR. Lakshmanan.
##
Appeal (civil)#Appeal (civil) 3130 of 2002#2002#Ashan Devi & Anr.

#Phulwasi Devi & Ors.

#2003-11-19#25652# 3130#Shivaraj V. Patil # D.M. Dharmadhikari.
###
Appeal (civil)#Appeal (civil) 7096 of 2000#2000#Smt. Lila Ghosh (Dead) through LR, Shri Tap
as Chandra Roy
#The State of West Bengal
#2003-11-18#25653# 7096#S. N. Variava # H. K. Sema.
###
###Harinagar Sugar Mills Ltd.
#State of Bihar & Ors.
#2003-11-19#25654##Brijesh Kumar # Arun Kumar.
###

Appeal (crl.)#Appeal (crl.) 115-120 of 2002#2002#R. Sai Bharathi

#J. Jayalalitha & Ors.

#2003-11-24#25655# 115-120#S. RAJENDRA BABU # P. VENKATARAMA REDDI
###
Appeal (civil)#Appeal (civil) 9136-9137 of 2003#2003#M/s.Sathyanarayana Brothers (P) Ltd.

#Tamil Nadu Water Supply & Drainage Board

#2003-11-18#25656# 9136-9137#Brijesh Kumar # (Arun Kumar.
###