Holding

The Court held that unauthorized possession of hazardous explosives and lethal weapons attracts liability under Section 4(b) of POTA irrespective of any notification, the Review Committee exceeded its jurisdiction and its order was set aside, and the accused may be prosecuted under Section 3(3) and 4(b) of POTA with the cases transferred for a fair trial.

Summary

The Supreme Court examined a raid that uncovered AK‑56 rifles, ammunition and about 600 g of explosive material at the residence of three accused, leading to prosecution under the Prevention of Terrorism Act, 2002 (POTA). The State Government’s order withdrawing the POTA cases and the Review Committee’s finding of no prima facie case were challenged. The Court held that Section 4(b) of POTA makes unauthorized possession of hazardous explosives or lethal weapons punishable irrespective of any notified area, and that the notification under Section 4(a) became effective only on its Gazette publication on 29 January 2003, rendering the raid pre‑notification. The Review Committee was found to have exceeded its limited jurisdiction by assessing the merits of the evidence. Consequently, the Court set aside the Review Committee’s order, quashed the State’s withdrawal, directed that prosecution may proceed under Section 3(3) and 4(b) of POTA along with the Arms and Explosives Acts, and ordered transfer of the cases to ensure a fair trial.

Issues considered

The applicability of Section 4(b) of POTA to the possession of explosives and AK‑56 rifles irrespective of a notified area
The date of effect of the notification under Section 4(a) of POTA and its relevance to the raid
Whether the Review Committee under Section 60 of POTA exceeded its jurisdiction by examining the merits of the case
The authority of the public prosecutor to withdraw prosecution on the Government’s direction under Section 321 CrPC
The continuance of prosecution under Sections 3(3) and 4(b) of POTA despite the Review Committee’s finding
The appropriateness of transferring the cases to another jurisdiction for a fair trial

Legislation cited

Arms Act, 1959s. 3, s. 5
Code of Criminal Procedure, 1973s. 321
Explosive Substances Act, 1908s. 2
Prevention of Terrorism Act, 2002s. 3, s. 4(a), s. 4(b), s. 50, s. 60
State General Clauses Act
U.P. Gangster and Anti-Social Activities (Prevention) Act, 1986s. 2, s. 3

Subjects

POTASection 4(b)hazardous explosivelethal weaponreview committeenotificationArms Actpublic prosecutorwithdrawal of prosecutiontransfer of casesprima facieterrorism

Judgment

A S.K. SHUKLA AND ORS.
v.
STATE OF U.P. AND ORS ..

NOVEMBER I 0, 2005

B [B.N. AGRAWAL AND A.K. MATHUR, JJ.]

Criminal Law

Prevention of Terrorism Act,' 2002-Section 3, 4(a)-Genera/ Clauses
C Act-Arms Act, 1959-Sch./ category (1), 3(a)-Possession of arms and
ammunition in a notified area-Notification though communicated on
23. 1.2003, published in Gazette on 29. 1.2003-Held, date of publication
relevant-Further Held publication essential as it affects the rights ofpublic-
Notification comes into effect from the date when it was published in the ·
D official gazette.

POTA, 2002-Section 4(b), Section 60-Review Committee-Recovery
of unauthorized possession ofexplosive substance and lethal weapons capable
of mass destruction-Forensic Lab report showing presence of explosive '\
substances-Held, mere possession is an offence-Further Held, order of
E Review Committee holding that no offe.nce made out incorrect-Further Held, )

powers of Review. Committee limited to see whether prima facie case made
out against accused

Words and Phrases- "lethal weapon" "hazardous substance"-
Meaning of
F
Cr.P.C.-Section 321-Duty of Public Prosecutor-Withdrawal from
prosecution-Held, public prosecutor has to act objectively and need not act
on the dictate of the State Governments. ·

Inspector In-charge, P.S. Kotwali Kunda along with informant and
G other police officials raided the house of 'U' for execution of warrant of
arrest under Section 2/3 of the Gangster Act. They entered through main
gate and went inside the Raj Mahal premises where they found 'K' an
advocate, who told them that he is an advocate for civil cases. They found
'U' present in Raj Mahal where he was standing with on piece of AK 56
H 172
S.K. SHUKLAv. STATE OF U.P. 173
rifle with black colour belt hanging on his right shoulder and the weapon A
was in perfect condition and on his shoulder there was a bag with three
pieces of magazines of AK 56 rifle. After unloading the AK 56 rifle with
36 bullets, he was asked to produce the licence, he could not show anything.
When they entered into his bedroom they Mund ammunition, a square
wooden box yellow colored polythene bag which contained in it about 200 B
gms of explosive chips and in grey colour polythene bag there was some
suspicious black power. In a while cotton bag there was blue colour
polythene which contained nearabout 400 gms suspicious brown colour
powder. The mango gardens of 'U' were raided from two clues. On the
western direction of the Raj Mahal Bhadri, at 200 mtrs from the western
wall at the mango gardens of 'U' they discovered three polythene green C
bags containing guns and other weapons.

An order under POTA was passed against all the three accused
namely, 'R', 'U' and 'A' by the State Government. All this recovery of
arms, ammunition and other weapons were detailed in the order. It was
also disclosed that a conspiracy was hatched by 'U' to cause a massacre D
and/or to create terror after killing some VIPs. In this order it was
mentioned that statement of one witness was recorded wherein he stated
that all the accused have brought AK-47 (56) rifle and given it to 'U'. It
was also alleged that after this statement he was murdered and the father
of the deceased filed an FIR; that they propose to take some action against E
Chief Minister; that the said AK-56 rifle was brought by 'R' in presence
of' A' and was given to 'U'. On the basis of this, State Government granted
permission to launch prosecution under Section 50 of the POT A Act to
prosecute the accused persons under Sections 3(2), 3(3), 3(7) and 4 of
POTA. After this order was passed by the State Government against the
accused persons political events took a turn. A new Government came in F
power. This new Government revoked the order and withdrew the
prosecutor. This order was challenged by the petitioner in the Writ
Petition.

The accused also filed a review petition under Section 60 of POT A
before the Review Committee appointed under the POT A Act and a G
petition before the Central Government. The Review Committee reviewed
the matter and held that since there is no case against the applicants under
the POT A and no prima facie case is found under Sections 3 and 4 of the
POT A Act, there is no basis for proceeding against accused under POT A
and the State of U.P. was directed to release all the three applicants. Before H
174 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A this order of the Review Committee the State Government has already
passed the order for withdrawing the cases against all the accused under
the POT A Act by an order.

Petitioner contended in the petitions, that in fact the Review
Committee did not appreciate the scope of Section 4 of the Act properly;
B that though the cases of these accused persons are covered under Section
4(a) because of unauthorized possession of arms and ammunition, but in
case it is not covered under Section 4(a), then alternatively it is squarely
covered under Section 4(b) because there is no need to notify the area
under Sections 4(b) as required under Section 4(a) of the Act and that
C Section 4(b) where unauthorized possession of the bombs, dynamites or
hazardous explosive substance or lethal weapons capable of mass
destruction is concerned, in that case the area need not be notified; that
this aspect seems to have been completely missed by the Review
Committee; that the Review Committee only concentrated with regard to
the question of Section 4(a), but did not examine the matter with reference
D to Sections 4(b) of the Act; that the hazardous explosive substances
recovered from the house cannot be dismissed as an explosive of low
intensity; that the explosive substances recovered were sent for Forensic
Science Laboratory and the report has observed presence of explosive
substances; that the potentiality of creating mass destruc~ion by a weapon
E like AK-56 is to be noted and that AK-56 is, in fact, the improved version
of AK-47.

The State supported the order of the Review Committee.
Respondent-Accused contended that the order passed by the Review
Committee is correct and it has not committed any irregularity or
illegality; that the raid in the house of 'R', 'U' and 'A' were politically
F motivated as these persons did not support the Government of Mayawati,
the raid was con~ucted and POTA cases were launched against them; that
as per the finding of the bomb demolishing squad it is of low intensity and
cannot fall in the category of hazardous substance.

Allowing the Writ Petitions, Appeals and Transfer Petition, the
G Court

HELD: 1. Section 4(b) of POTA talks of unauthorized possession of
bombs, dynamites, hazardous explosive substances or other lethal weapons
or poisonous or noxious gases or other chemicals or by any other
H substances of a hazardous nature capable of mass destruction whether
S.K. SHUKLAv. STATEOFU.P. 175
•·
notified or not notified. Therefore, the possession of bombs, dynamite or A
hazardous explosive substance or lethal weapons in an unauthorized
manner is punishable in itself and need not be in notified area. Therefore,
under Section 4(a) and (b), the possession of the arms mentioned in clause
(a), unauthorized possession thereof in notified area is prohibited whereas
under Section 4(b) any bomb, dynamite, hazardous explosive or lethal
weapon capable of a mass destruction is punishable irrespective of the fact B
that the area is notified or not 1totified. The qualification of the notified
area is not required in Section 4(b). (190-D-FI

2. After close scrutiny of the records of the Government Secretariat's
files as well as original registers of the Government Press, the Court is of
the opinion that the view taken by the Review Committee to this extent is
c
correct that the whole area was notified on 29.1.2003 only and not on
23.1.2003 - the date of the notification. The requisition reached the
Government Press for publication at 5.30 p.m. on 27.1.2003 and it was
published and ready for dispatch on 29.1.2003 and accordingly it was
dispatched to the Home Department on 29.1.2003. Therefore, from these D
facts it is clear that the finding accorded by the Review Committee that
the notification notifying the State of U.P. as a notified area under Section
4(a) was published in the Extra Ordinary Gazette of U.P. on 29.1.2003
and it was dispatched thereafter to all the district magistrates. Therefore,
it became effective from the date of its publication. Normally under the
State General Clause Act, an Act comes into force on the date when the
E
assent of the Governor or the President as the case may be, is first
published in the official gazette of the State. Therefore, publication in the
gazette is essential as it affects the rights of the public. Since this
prohibitory notification notifying that the possession of certain kinds of
arms in the notified area is prohibited, therefore, it would come into effect F
from the date when it was published in the official gazette. Therefore, so
far as this part of the finding given by the Review Committee that
notification under Section 4(a) had not come into existence at the time
when the raid at the premises was conducted, this finding of the POT A
Review Committee is correct. As a result of this finding the charge under
Section 4(a) cannot be sustained. (191-D-H; 192-A-B(
G

3. It is unlikely that a law abiding citizen will keep such quantity of
the explosive at his house. It is not an explosive for purpose of firecrackers.
In the light of the facts mentioned above, keeping of such explosive at their
house does not show that it was meant for a bonafide purpose. The question H
"'
176 SUPREME COURT REPORTS [2005) SUPP. S S.C.R.

A is whether this substance is hazardoµs in nature or not. The very fact of
keeping such huge quantity of explosive in house is on the face of it
hazardous and it is not kept normally by a person unless he deals in
explosives with authorized licence for that purpose. The possession of such
explosive without any authorized licence is a serious matter. This explosive
B is capable of creating a havoc if it is used for preparing a bomb, it is
capable of mass destruction. Any person in this background possessing
this hazardous explosive substance cannot be credited to have it for
bonafide purpose. Therefore, the fact that hazardous substance was found
at the house of 'U' clearly shows that the case is covered by Section 4(b)
and it cannot be played down simply because it has been reported by the
C bomb demolishing squad that it is of low intensity. This explosive substance
is certainly hazardous and is capable of being used for preparation of
bomb or other explosive material for scaring the people or for causing ,L
mass destruction be it in terms of the human beings or any building or
otherwise. This aspect of the matter seems to have not been adverted to
by the Review committee. [192-H; 193-A-C)
D
4. The potentiality of AK-56 is capable of causing mass destruction.
It fires about 600 rounds per minute, it means 600 bullets if hit all the
600 targets, it can lead to a mass destruction. Therefore, the possession of
such unauthorized weapon is dangerous and is capable of mass destruction.
E It is a lethal weapon capable of mass destruction and unauthorized
possession thereof is itself punishable. This aspect has also not been
adverted to by the Review Committee. [196-H; 197-A-BI

5. The Review committee only directed that an unauthorized
possession of the weapons which have been specified in columns 2 and 3
p of category 1, or category 3(a) of Schedule 1 to the Arms Rules possession
of it in the notified area is punishable. But if at the same time one of the
weapons falls in the category of Section 4(b), then it does not mean that
since it falls in category 4(a), it stands excluded from category of Section
4(b). It the weapons falls in the category of Section 4(b) also under the
head 'lethal weapon', then irrespective of the fact that it falls in category
G (a) will not be excluded from category of Section 4(b). The Court cannot
read both the provisions of clause (a) and {b) to be of exclusive of each
other. Both the provisions have to be read harmoniously. It the weapon
which is specified in clause (a) is equally covered under clause (b) under
the heading of 'lethal weaponr, then it would not mean that it shall stand
H excluded from Section 4(b). The purposes for which this Act was enacted
S.K. SHUKLAv. STATE OF U.P. 177
have to be kept in view i.e. prevention of the terrorists activities and A
p~ovisions of Section 4(a) and (b) cannot be interpreted to be exclusive of
each other. It the weapons enumerated in clause (a) are also covered in
clause (b), then it does not go out of the net of clause (b). This aspect was
not addressed by the Review Committee at all. The Review Committee
put a complete gloss over possession of the explosive substance, that it is
not a hazardous or capable of mass destruction b.ecause of its low intensity. B
[197-8, El

' 6. The Review Committee has also entered into the merit of the
matter that accused persons cannot be connected with the recovery of these
catch of arms. The role of the Review committee is very limited and the
Review committee has to see a primafacie case and cannot enter into the
c
merit that whether ultimately the conviction will be entailed or not or the
evidence is so weak to connect the other accused persons. The role given
to the Review committee under Section 60(4) is very limited and it has
only to see whether there is a prime facie case for proceeding against the
accused under the Act or not. The Review Committee has travelled beyond D
its scope, the sufficiency of evidence cannot be gone into be the Review
Committee. It is also not the job of the Review committee whether
confession is admissible or not. Role assigned to Review committee is very
limited and if the prim a facie case connects the accused on the basis of the
material with the prosecution then it is not for the Review Committee to
E
dilate on that as if they are trying the cases under the Act.
(197-F, H; 198-AI

7. There is prima facie case for prosecuting the accused persons.
These accused persons were charged under Section 3(3) read with Section
4 (a)(b) of the Act. But so far as Section 4(a) is concerned, for reasons F
mentioned above, it cannot proceed now. But it can proceed so far as under
Section 3(3) and Section 4(b) of the Act is concerned along with Arms Act
and Explosives Act. The order of the Review Committee is set aside and
the respondents can be prosecuted under Section 3(3) and Section 4(b) of
the Act and other provisions of the Explosives and Arms Act. (198-C, DI
G
8. The order passed by the Government as well as application moved
by the special public prosecutor before the Special Judge, Kanpur Nagar
cannot be sustained and accordingly the order passed by State Government
{
and the application moved by the special public prosecutor before the
Special Judge at Kanpur, both are rejected. (199-B, q
H
178 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A 9. The Public Prosecutor cannot act like a post box or act on the
dictate of the State Governments. He has to act objectively as he is also
and officer of the Court. At the same time court is also not bound by that.
The courts are also free to ass~ss whether the primafacie case is made or
not. The court, if satisfied, can also reject the prayer. However in the
B present. case there is a prima facie case to proceed against the accused
persons under Section 4(b) of the ., l
Act arid other provisions of the
~·

Explosives or Arms Act, therefore, the sanction granted by the
Government and application moved by public prosecutor for withdrawal
of the cases cannot be sustained. Writ Petitions are allowed and the order
of the State Government withdrawing the case against the accused persons
C is quashed, likewise direction to the public prosecutor withdrawing the
cases from the Court. [200-A, CJ

Sheonandan Paswan v. State of Bihar and Ors., [1983) l SCC 438,
referred to.

D 10. In the interest of justice both these cases be transferred to any
other court where, in a proper atmosphere, the matter can be death with
fairy. Thus criminal case No. 3/2003 in crime case No. 10/03 under Sections
3 and 4 of POT A Act and case No. 113/2002 and 209/2002 under Section
2/3 of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 be
E transferred to a Special Judge in M.P. (200-C, DI

CRIMINAL ORIGINAL JURISDICTION : Writ Petition (CRL) Nos.
132-134 of
2003.

(Under Article 32 of the Constitution of India.)

F WITH

S.L.P: (Crl.) No. 1521/2004, T.P.(Crl.) Nos. 82-84/2004 and Crl.A. No.
1511 of 2005.

Sunil K. Jain, Ravi Singhal, S. Borthakur, Manish Kumar and Ansar
G Ahmad Chaudhary for the Petitioners.
Shanti Bhushan, Ravi Prakash Mehrotra, R.K. Singh, Garvesh Kabra
and Ms. Savitri Pandey for the Respondent No. I.

P.P. Rao and Vijay Bahadur Singh, C.D. Singh, Gunratan Pandey, Ms.
H
,, __ :
S.K. SHUKLA"· STATE OF U.P. [A.K. MATHUR, J.] 179

Kiran Suvama, Ms. Hena Rizvi and Dr. Indra Pratap Singh for the Respondent A
Nos. 2-4.

T.S. Doabia, M.S. Doabia, Hemant Sharma, P. Parmeswaran and Ms.
Sushma Suri for Union of India.

Pradeep Misra for the Respondent in Crl.A. No. 151112005. B
The Judgment of the Court was delivered by

A.K. MATHUR, J. All these cases are inter-related and common
arguments were raised, therefore, they are disposed of by this common order.

Writ Petition Nos 132-134/2003 under Article 32 of the Constitution of
c
India is directed against the withdrawal of the POTA order by the State
Government dated 29th August 2003 against accused Udai Pratap Singh,
Raghuraj Pratap Singh @ Raja Bhaiya & Akshay Pratap Singh @ Gapalji.
The Union of India was also permitted to .be imp leaded as a party-respondent.
D
In SLP (Crl) 5609 of 2004, the petitioner has challenged the order
· passed by the POT A Review Committee dated 30.4.2004 under Section 60
of the Prevention of Terrorism Act, 2002 (15 of 2002) (hereinafter refe~ed
to as 'the POTA'). Leave granted.

In SLP (Crl) 1521 of 2004, the High Court order dated 24.2.2004 was E
challenged whereby accused Akshay Pratap Singh @ Gopalji was granted
bail in case No.10 of2003, under Section 3/4 of POTA, Police Station Kunda,
District Pratapgarh, U.P. on his furnishing a personal bond for Rs. l ,00,000
with two sureties each in the like amount to the satisfaction of the Special
Judge, designated court, Kanpur. F
T.P (Crl) Nos. 82-84/2004 have been filed by the petitioners
apprehending that there is likelihood of miscarriage of justice in the State of
U.P. seeking transfer of cases pending against the accused persons from the
Special Judge, Kanpur Nagar U.P. to the Designated Court in Delhi.
G
In order to appreciate the controversy involved in the matter, it will be
proper to take the first case i.e. SLP(Crl) 5609 of 2004 whereby the Review
Committee reviewed the cases of all the three respondents i.e. Raghuraj Pratap
Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias
Gopalji under Section 3/4 of the POTA Act and directed the State Government
H
180 SUPREME COURT REPORTS (2005) SUPP. 5 S.C.R.

A to release all these accused persons and the proceedings against them shall
deem to have been withdrawn from the date of this direction and they may
be released from the custody forthwith under Section 3/ 4 of the POT A Act
by order dated 30.4.2004. Aggrieved this order, the present petition was filed
by the appellant.

B The prosecution case as disclosed in recovery memo dated 25. l.2003
of 13.45 hrs lodged at P.S. Kunda by Paramhans Mishra, Inspector In-charge,
P.S. Kotwali Kunda that he along with informant and other police officials
raided the house of Udai Pratap Singh for execution of warrant of arrest in
crime No. 55/1993 under Section 2/3 of the Gangster Act pending before
C Special Judge, Allahabad. They entered through main gate and went inside
the Raj Mahal premises where they found Shri Kesri "Mandan, advocate, who
told them that he is an advocate for civil cases of Uday Pratap Singh .. They
found Uday Pratap Singh present in Raj Mahal where he was standing with
one piece of AK 56 rife with black colour belt hanging on his right shoulder.
In the rifle, there was triangular sign on the butt with 56 written in between
D it, then something was written in Chinese language and the number was
printed 1600232 and the weapon was in perfect condition and on his shoulder
there was a bag.with three pieces of magazines of AK 56 rifle. After unloading
the AK 56 rifle they found 36 bullets. When he was asked to produce the
licence, he could not show anything nor was he ready to tell them how he
E had acquired all these items. It is further alleged that when they entered into
his bed room they found (i) 25 bullets of. 75, .65 bores (ii) 16 bullets of 400
NITRO (iii) I bullet of .577 bore (iv) 3 other old rusted bullets which were
not able to read (v) 12 bullets of .405 (vi) 35 bullets of 77 mm and (vii) 35
bullets which are old, rusted and not readable. After that they found a square
wooden box yellow colored polythene bag which contained in it about 200
F gms of explosive chips and in gray colour polythene bag there was some
suspicious black power. In a white cotton bag there was blue colour polythene
which contained near about 400 gms suspicious brown colour powder. In the
same bed room in another corner 55 bullets .605 bore and 22 bullets of .22,
two pieces of Motorola wireless set. They further raided the mango gardens
G ofUday Pratap Singh from two clues given by Bhole Tewari. On the western
direction of the Raj Mahal Bhadri, at 200 mtrs from the western wall at the
mango gardens of Uday Pratap Singh, the police discovered freshly dug mud.
After digging 3 ft deep with length of 5 ft and width of 4 ft they discovered
three polythene green bags and they also found (i) one DBBL gun (ii) another
DBBL gun .12 bore (iii) another DBBL gun No.4136 C/I (iv) another DBBL
H gun number destroyed (v) one rifle (vi) one SSBBL gun No.3_077-1994 (vii)
S.K. SHUKLA v. ST ATE OF U.P. (A.K. MATHUR, J.] 181
... . one SBBL gun number 12194-B.2 (viii) five pieces of SSBBL guns (ix) two A
pieces of Mauzre guns (x) two pieces of Muzzle loading guns (xi) thirteen
pieces of swords (xii) two pieces of Hachet (xiii) two pieces of iron spears
(xiv) one cane with concealed sword (xv) one iron axe with cap and (xvi) one
big knife with handle.

On 26th January, 2003 they recovered one 30 spring field self loading B
rifle, one 30 carbine, 11 cartridges of 30 spring field rifle and 30 cartridges
of 30 carbine. These huge catchy of arms were recovered on the raid by the
police on 25/26th January 2003 and, therefore, an order under POTA was
passed against all the three accused namely, Raghuraj Pratap Singh alias Raja
Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias Gopalji by the C
State Government. All this recovery of anns, ammunition and other weapons
were detailed in the order. It was also disclosed that a conspiracy was hatched
by Uday Pratap Singh to cause a massacre and/or to create terror after killing
some VIPs. In this order it was mentioned that statement of one Shri Rajendra
Yadav was recorded on 30.2.2003 wherein he stated that Raghuraj Pratap
Singh alias Raja Bhaiyya and Akshay Pratap Singh alias Gopalji have brought D
AK-47 (56) rifle and given it to Udai Pratap Singh. It was also alleged that
after this statement he was murdered on 3.3 .2003 and the father of the deceased
filed an FIR No.16 of 2003 under Section 302/34/506/1208 IPC in P.S.
Kunda, Distt. Pratapgarh for causing the murder under a conspiracy hatched
by Raghuraj Pratap Singh, Akshay Pratap Singh and Udai Pratap Singh. It E
was alleged that these persons kept the huge arms and ammunition including
AK-56/AK-47 in their house and whoever speaks against them meet the same
fate. It was also alleged that they propose to take some action against Chief
Minister Mayawati. It was also mentioned in the order that the said AK-56
rifle was brought by Raghuraj Pratap Singh in presence of Akshay Pratap
Singh and was given to Shri Udai Pratap Singh. On the basis of this, State F
Government granted pennission to launch prosecution under Section 50 of
the POTA Act to prosecute the accused persons namely, Raghuraj Pratap
Singh alias Raja Bhaiya, Udai Pratap Singh and Akshay Pratap Singh alias
Gopalji under Sections 3(2), 3(3), 3(7) and 4 of POTA Act by order dated
5.5.2003. The petitioner has given details of the large number of criminal G
cases pending against these persons. Shri Raghuraj Pratap Singh is said to be
involved in 37 cases for various offence under Sections 302, 307, 147, 148,
120-B, 320 IPC. The petitioner has also given a chart of the cases pending
against Uday Pratap Singh for various offences under Sections 302. 307, 397
etc. totalling around 50 cases. The petitioner has also given a chart mentioning
the cases against Akshay Pratap Singh for the offence under Sections 302, H
182 SUPREME COURT REPORTS [20051 SUPP. S S;C.R.

A 307 & the Gangster Act and many other cases under Indian Penal Code
totalling around 32 cases. After this order was passed by the State Government
against the accused persons political events took a tum. A new regime came
in power. This regime after resuming the power revoked the order by an
order dated 29.8.2003. This order was challenged by the petitioner in the
B Writ Petition (Crl) 132-134 of 2003 under Article 32 of the Constitution
before this Court.

Meanwhile the accused also filed a review petition under Section 60 of
POTA before the Reviewing Committee appointed under the POTA Act.
They also filed petition before the Central Government. The ·Reviewing
C Committee headed by Justice Naseem Uddin and Rajendra Kumar Dubey, ex
Commissioner in U.P. reviewed the matter and held that since there is no
case against the applicants under the POTA and no prima facie case is found
under Sections 3 and 4 of the POTA Act, therefore, there is no basis for
proceeding against accused under POTA and the State of U.P. was directed
to release all the three applicants. This is the subject matter of the Special
D Leave Petition (Crl) 5069 of'.2004. All the arguments were directed on whether
the order passed by the Review Committee is sustainable in law or not. In
fact, before this order of the Review Committee the State Government has
already passed the order for withdrawing. the cases against all the accused
under the POTA Act by order dated 29.8.2003 but since the order was passed
E by the Review Committee therefore we shall now deal with this petition first
that whether this order of the Review Committee can. be sustained or not.

Before we adtlress ourselves and examine the validity of this order
passed by the Review Committee under Section 60 of the POTA Act, it will
be relevant to review the necessary provisions of the POTA Act. The said
F Act i.e Prevention of Terrorism Act, 2002 was pro~ulgated by the .Parliament
with a view t.o prevent terrorists activities and the matters connected therewith.
The terrorist act has been defmed in Section 2(1)(g) which reads as under:

"2(l)(g) : "Terrorist Act" has the meaning assigned to it in sub-
sectio.n ( l) of Section land the expression "terrorist" shall be construed
G accordingly;"

Section 3 reads as under:

"3 .(1) Whoever,

(a) with intent to threaten the unity, integrity, security 9r sovereignty
H
S.K. SHUKLA 11. STATE OF U.P. [A.K. MATHUR, J.] 183
of India or to strike terror in the people or any section of the people A
•'"
\.
does any act or thing by using bombs, dynamite or other explosive
substances or inflammable substances or firearms or other lethal
weapons or poisons or noxious gases or other chemicals or by any
other substances (whether biological or otherwise) of a hazardous
nature or by any other means whatsoever, in such a manner as to
cause, or likely to cause, death of, or injuries to any person or persons B
or loss of, or damage to, or destruction of, property or disruption of
any supplies or services essential to the life of the community or
causes damage or destruction of any property or equipment used or
intended to be used for the defence of India or in connection with any
other purposes of the Government of India, any State Government or C
any of their agencies, or detains any person and threatens to kill or
injure such person in order to compel the Government or any other
person to do or abstain from doing any act;
(b) is or continues to be a member of an association declared unlawful
under the Unlawful Activities (Prevention) .Act, 1967 or voluntarily D
does an act aiding or promoting in any manner the objects of such
association and in either case is in_,possession of any unlicensed
firearms, ammunition, explosive or other instrument or substance
capable of causing mass dest~uction and commits any act resulting in
loss of human life or grievous*ijury to any person or causes significant E
damage- to any property, eJt; ' 1
commits a terrorist act.
Explanation:- For the purposes of this sub-section, "a terrorist act"
shall include the act of raising funds intended for the purpose of
terrorism. F
(2) Whoever commits a terrorist act, shall:-
(a) if such act has resulted in the death of any person, be
punishable with death or imprisonment for life and shall also be
liable to fine: G
(b) in .any other case, be punishable with imprisonment for a
term which shall not be less than five years but which may
extend to imprisonment for life and shall also be liable to fine.
(3) Whoever conspires or attempts to commit, or advocates, abets,
advises or incites or knowingly facilitates the commission of, a terrorist H
r

184 SUPREME· COURT REPORTS (2005) SUPP. S S.C.R.

A act or any act preparatory to a terrorist act, shall be punishable with
imprisonment for a term which shall not be less than five years but
which may extend to imprisonment for life and shall also be liable to
fl~ •

(4) Whoever voluntarily harbours or conceals, or attempts to harbour
B or conceal any person knowing that such person is a terrorist shall be
punishable with imprisonment for a term which shall not be less than
three years but which may extend to imprisonment for life and shall
also be liable to fine:

Provided that this sub-section shall not apply to any case in which the
C harbour or concealment is by the husband or wife of the offender.

(5) Any person who is a member of a terrorist gang or a terrorist
organization, which is involved in terrorists acts, shall be punishable
with imprisonment for a term which may extend to imprisonment for
life or with fine which may extend to rupees ten lakh or with both.
D
Explanation: For the purposes of this sub-section, "terrorist ·
organization" means an organization which is concerned with or
involved in terrorism.

(6) Whoever knowingly holds any property derived or obtained from
E commission of any terrorist act or has been acquired through the
terrorist funds shall be punishable with imprisonment for a term which
may extend to imprisonment for life or with tine which may extend
to rupees ten lakh or with both.

(7) Whoever threatens any person who is a witness or any other
F person in whom such witness may be interested, with violence, or
wrongfully restrains or confines the witness, or any other person in
whom the witness may be interested, or does any other unlawful act
with the said intent, shall be punishable· with imprisonment which
may extend to three years and fine."

G Section 4 reads as under:

"Where any person is in unauthorized possession of any:-

(a) arms or ammunition specified in columns (2) and (3) of
Category I or Category III(a) of Schedule I to the Arms Rules,
1962, in a notified area.
H
S.K. SHUKLA v. STATE OF U.P. (A.K. MATHUR,J.] 185
(b) bombs, dynamite or hazardous explosive substances or other A
lethal weapons capable of mass destruction or biological or
chemical substances of warfare in any area, whether notified or
not,
\ he shall be guilty of terrorist act notwithstanding anything contained ·
in any other law for the time being in force, and be punishable with B
imprisonment for a term which may extend to imprisonment for life
or with fine which may extend to rupees ten lakh or with both.

Explanation: in this section, "notified area" means such area as the
State Government may, by notification in th~ Official Gazette, specify."

Section 60 lays down that the Central Government and the State
c
Government constituting a Review Committing for purposes of reviewing the
cases. Section 60 reads as under:

"60( l) The Central Government and each State Government shall,
whenever necessary, constitute one or more Review Committees for D
the purposes of this Act.

(2) Every such Committee shall consist of a Chairperson and such
other members not exceeding three and possessing such qualifications
as may be prescribed.

(3) A Chairperson of the Committee shall be a person who is, or has
E
been, a Judge of a High Court, who shall be appointed by the Central
Government, or as the case may be, the State Government, so however,
that the concurrence of the Chief Justice of the High Court shall be
obtained in the case of a sitting Judge:
F
Provided that in the case of a Union territory, the appointment of a
person who is a Judge of the High Court of a State shall be made as
a Chairperson with the concurrence of the Chief Justice of the
concerned High Court.

4 to 7 Inst. by act 4/2004 w.e.f. 27.10.2003 G
(4) Without prejudice to the other provisions of this Act, any Review
Committee constituted under sub-section (1) shall, on an application
by any aggrieved person, review whether there is a prima facie case
for proceeding against the accused under this Act and issue directions
accordingly. H
I86 SUPREME COURT REPO.RTS [2005) SUPP. 5 S.C.R.

A (5) Any direction issued un.der sub-section (4):

(i) by the Review Committee constituted by the Central
Government, shall be binding on the Central Government, the
State Government and the police officer investigating the offence;
!
and
B (ii) by the Review Committee constituted by the State
Government, shall be binding on the State Government and the
police officer investigating the offence.

(6) Where the reviews under sub-section (4) relating to the same
offence under this Act, have been made by a Review Committee
c constituted by the Central Government and a Review committee
constituted by the State Government, under sub-section (1), any
direction issued by the Review Committee constituted by the Central
Government. shall prevail.

(7) Wher.e any Review Committee constituted under sub-section (I)
D is of opinion that there is no primafacie case for proceeding against
the accused and issues directions under sub-s-ection (4), then, the
proceedings pending against the accused shall be deemed to have
been withdrawn from the date of such direction."

E A perusal of these relevant Sections shows that Section 3 deals with
terrorist activities and we are specially concerned with sub-section (3) which,
inter alia, states that whoever conspires or attempts to commit, or advocates,
abets, advises or incites or knowingly facilitates the commission of, a terrorist
act or ·any act preparatory to a terrorist act, shall be punishable with
imprisonment for a term which shall not be less than five years but which
F may extend to imprisonment for life and shall also be liable to fine. Therefore
the ambit of Terrorist Act is very wide and in this any person who commits
or advocate, abets, advises or incites or knowingly facilitates the commission
or involved in preparation to a terrorist act can be roped in under the wide
definition of the Terrorist Act. In fact, the sub-section (I) of Section 3 clearly·
G says that whoever with intent to threaten the unity, integrity, security or
sovereignty oflndia or to strike terror in the people or a section of the people
does any act or thing by using bombs, dynamite or other explosive substances
or inflammable substances or firearms or lethal weapons or.poisons or noxious
gases or other chemicals or by any other substances of a hazardous nature or
by any other means whatsoever, in such manner as to cause death or ·injuries
H
S.K. SHUKLAv. STATEOFU.P. (A.K. MATHUR,J.) 187
to any person or persons or loss of or damage to or destruction of, property A
or disruption of any supplies or services essential to the life of the community
or causes damage or destruction of any property or equipment used or intended
to be· used for the defence of India or in connection with any other purposes
of the Government of India, any State Government or any of their agencies,
or detains any persons and threatens to kill or injure such person in order to B
compel the Government or any other person to do or abstain from doing any
act. That shows that if any person with the help of any bombs, dynamite or
explosive substance or by fire arm or lethal weapons terrorize people or any
section of people then such action will amount to a terrorist activity and the
preparation thereof will also be punishable. Therefore, the question before us
is whether the possession of the weapons by the accused persons in their C
houses were lethal weapons and the possession of the explosive substances
were preparation of the terrorist act or not. Secondly, whether unauthorized
possession under Section 4(a) of the Arms Act and ammunition specified in
column 2 and 3 and category (I) or category 3(a) of Schedule I to the Arms
Act, 1959 in notified area would attract the wrath of this provision. Likewise,
whether possession of hazardous explosive or lethal weapons capable of D
mass destructi.on by these accused persons can be prosecuted or not under
Section 4(b) of the Act.

Learned counsel for the appellant has seriously challenged the order
passed by Review Committee. Learned counsel for the petitioner submitted E
that in fact the Review Committee did not appreciate the scope of Section 4
of the Act properly. He submitted that tho.ugh the cases of these accused
persons are covered under Section 4(a) because of unauthorized possession
of arms and ammunition, but in case it is not covered under Section 4(a),
then alternatively it is squarely covered under Section 4(b) because there is
no need to notify the area under Section 4(b) as required under Section 4(a) F
of the Act.

Shri Shanti Bhushan, learned senior counsel appearing for the State
supported the order of the Review Committee. Sbri Rao, learned senior counsel
appearing for the accused respondents also strenuously urged that the order
passed by the Review Committee is correct and the Review Committee has G
notcommitted any irregularity or illegality.

Section 4 has already reproduced above has two parts, one with the
possession of the arms and ammunition specified in column 2 and 3 of the
category 1 or category 3(a) of Schedule 1 of the Arms Rules, i 962, the H
188 SUPREME COURT REPORTS [2005) SUPP. S S.C.R.

A unauthorized possession of them in notified area is punishable. Now the
category 1 of Schedule under the Arms Rules, 1962 read with category 3(a)
of the Schedule 1 reads as under:

SCHEDULE I
(See rule 3)
B
Category Arms Ammunition

2 3

CI (a) Prohibited arms as defined Prohibited ammunition as defined in
in Section 2 (I) (i) and such Section 2 ( 1) (h) and such other
other arms as the Central articles as the Central Government
Government, may, by may, by notification in the Official
notification in the Official Gazette, specify to be prohibited
Gazette, specify to be prohibited ammunition.
D arms.

(b) Semi-automatic fire-arms, Ammunition for arms of category I
other than those included in (b).
categories I (c) and III (a),
smooth bore guns having barrel
E
of less than 29" in length.

(c) B~ot action or semi-automatic Ammunition for fire-arms of cate-
rifles of".303" or 7.62 mm. bore gory I (c).
or any other .bore which can
F chamber and fire service
ammunition of .303" or 7.62
mm. calibre; muskets of .410"
bore of any other bore which can
fire .410" musket ammunition ;
pistols, revolvers or carbines of
G any bore which can chamber
.380" or .455" rimmed cartridges
or service 9 mm. or ".445"
rim less cartridges.

H (d) Accessories for any fire-arms Nil.
S.K. SHUKLA v. STATE OF U.P. (A.K. MA THUR. .1.J 189
designed or adapted to diminish Machinery for manufacturing A
the noise or flash caused by the ammunition.
firing thereof.

II Machinery for manufacture or Ammunition for fire-arms other than
proof-testing of a fire-arm. those in categories I, II and IV,
namely : B

III Fire-arms other than those in. Ammunition for fire-arms of cate-
.. categories I, II and IV, namely : gory III (a).

(a) Revolvers and pistols. Ammunition for fire-arms of cate- C
gory III (b ).

(b) Breech-loading rifles other Ammunition for fire-arms of cate-
than .22 bore rifles mentioned gory III (c).
in category III (c) below.
Ammunition for fire-anns of cate- D
(c) 22 bore (low velocity) rifles gory HI(d).
using rimfire cartridges, breech-
loading smooth-bore guns and Curios and historical ammunition.
air-rifles.

(d) Air-guns and muzzle-loading
E
guns.
IV Curios and historical weapons, Nil.
other than those excluded under
Section 45 (c).
V Arms other than fire-arms : F
Sharp-edged and deadly
weapons, namely-
swords(including sword-stick),
daggers, bayonets, spears
(including lances and javelins;
battle-axes, knives (including G
kirrpans and khukries) and other
such weapons with blades longer
than 9" or wider than 2" other
than those designed for
domestic, agricultural, scientific H
190 SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A or industrial purpose, steel
batton; "Zipo'' and other such
weapons called "life pre-serves";
machinery for making arms,
other than category II; and any
other arms which the Central
B Government may notify under
Section 4. VI (a) Articles containing explosives
VI or fulminating material; fuses and
friction tubes other than blank fire
cartridges. VI (b) Ingredients as
c defined in Section 2 (b) (VII).

Note.-

Parts and accessories of any arms or'ammunition and charges for fire-arms and accessories
for charges belong to the same category as the arms or ammunition.
D
The second category i.e. Section 4(b) which says that the unauthorized
possession of bombs, dynamites, hazardous explosive substances or other
lethal weapons or poisons or noxious gases or other chemicals or by any
other substances of a hazardous nature capable of mass destruction whether
notified or not notified. Therefore, the possession of bombs, dynamite or
E hazardous explosive substance or lethal weapons in an unauthorized manner
is punishable in itself and need not be in notified area. Therefore, Section
4(a) and (b), the possession of the arms mentioned in clause (a), unauthorized
possession thereof in notified area is prohibited whereas in Section 4(b) any
bomb, dynamite, hazardous explosive or lethal weapon capable of a mass
F destruction is punishable irrespective of the fact that the area is notified or
not notified. The qualification of the notified area is not required in Section
4(b).

So far as Section 4(a) is concerned, the Review Committee had discussed ·
the matter in greater details and it was found that the notification under
G Section 4(a) was not issued prior to the recovery of the arms and ammunition
at the house of Udai Pratap Singh on 23.1.2003. It was submitted that the raid
in the house of Raghuraj Pratap Singh alias Raja Bhaiya, Udai Pratap Singh
and Akshay Pratap Singh alias Gopalji were politically motivated as these·
persons did not support the Government of Mayawati, the raid was conducted
and POTA cases were launched against them. When the new Government
H
S.K. SHUKLA v. STATE OF U.P. [A.K. MATHUR, J.] 191

came headed by Chief Minister Mulayam Singh Yadav then this order was A
revoked under POTA as Raghuraj Pratap Singh supported this Government.
We are not concerned with the political overtone of the matter. We are
examining the matter purely from tbe legal point of view. The question
before us is that on the relevant date whether the whole area of Uttar Pradesh
was notified area or not under Section 4(a) of the Act. Much argument was
addressed in this case and the original records of the Secretariat and of the B
Government Press was placed before us for our perusal. It may also be
relevant to mention here that a committee was appointed on the complaint
made by some of the legislators that the raid at the house of Udai Pratap
Singh was made prior to issue of the notification of the notified area. The
committee after considering full enquiry found that notification of notified C
area was promulgated on 29.1.2003 and it was communicated to the district
on 31.3.2003 and it reached them thereafter. Since this finding was seriously
debated before us also, therefore we perused the report of the committee as
well, we called the original record to satisfy ourselves when exactly was
notification issued. After going through the note sheet of the Secretarial file
as well as the record of the Government printing press, Lucknow, we are D
satisfied that in fact the notification declaring whole of State of Uttar Pradesh
as a notified area was not published on 23.1.2003. But the decision on the
note-sheet was taken on 22.1.2003 and a communication was sent to the
Government Press for publication of it on 23.1.2003 but in fact it was published
as per the record of the Government Press on 29.1.2003 though it was dated E
notification dated 23.1.2003. Therefore after close scrutiny of the records of
the Government Secretariat's files as well as original registers of the
Government Press, we are of the opinion that the view taken by the Review
Committee to this extent is correct that the whole area was notified on
29. l.2003 only and not on 23. l.2003 - the date of the notification. The
requisition reached the Government Press for publication 5.30 on 27.1.2003 F
and it was published and ready for dispatch on 29.1.2003 and accordingly it
was dispatched to the tJome Department on 29. l .2003. Therefore, from these
facts it is clear that the finding accorded by the Review Committee that the
notification notifying the State of U.P. as a notified area under Section 4(a)
was published in the Extra Ordinary Gazette of U.P. on 29.1.2003 and it was G
dispatched thereafter to all the districts magistrates. Therefore, it became
effective from the date of its publication. Normally under the State General
Clause Act, an Act comes into force on the date when the assent of the
Governor or the President as the case may be, is first published in the official
gazette of the State. T-herefore, publication in the gazette is essential as it
r
affects the rights of the public. Since this prohibitory notification notifying H
192 SUPREME COURT REPORTS [2005] SUPP. S S.C.R.

A that the possession of certain kinds of arms in the notified area is prohibited,
therefore, it would come into effect from the date when it was published in
the official gazette.

Therefore, so far as this part of the finding given by the Review
Committee that notification under Section 4(a) had not come into existence
B at the time when the raid at the premises ofUdai Pratap Singh was conducted,
this finding of the POTA Review Committee is correct. As a result of this
finding so far as charge under Section 4(a) cannot be sustained.

Now, coming to alternative submission of the learned counsel that
Section 4(b) where unauthorized possession of the bombs, dynamites or
C hazardous explosive substance or lethal weapons capable of mass destruction
is concerned, in that case the area need not be notified. The unauthorized
possession thereof itself has been found to be punishable under this Section.
Learned counsel submitted that this aspect seems to have been completely
missed by the Review Committee. The Review Committee only concentrated
D with regard to the question of Section 4(a), but did not examine the matter
with reference to sub-section (b) of Section 4 of the Act. The two expressions
which appear in Section 4(b) are relevant for our purposes i.e. the possession
of "hazardous explosive substance" or "lethal weapons capable of mass
destruction" .

E Learned counsel for the petitioner has submitted that the hazardous
explosive substances were recovered from the house of Udai Pratap Singh
cannot be dismissed as an explosive of low intensity and in that connection
learned counsel has invited our attention to the expression hazardous and also
invited our attention to the findings given by the forensic experts. The explosive
F substances recovered were sent for Forensic Science Laboratory, U.P. Agra
and Forensic Science Laboratory in their report has observed as under:

"On the analysis explosive substances Nitrate, Sulpher, Potassium
and Charcoal were found in the Exhibit. Organic chemical and DLC
method has been used."
G Our attention was also invited to the observation of the bomb disposal/
disbursement certificate it was mentioned that 'low intensify'. Therefore the
question is whether this explosive can be said to be as hazardous substance
or not. Firstly, it is unlikely that a law abiding citizen will keep such quantity
of the explosive at his house. It is not an explosive for purpose of firecrackers.
H In the light of the facts mentioned above, keeping of such explosive at their
S.K. SHUKLA v. STATE OF U.P. [A.K. MATHUR. J.] 193
house does not show that it was meant for a bonafide purpose. The question A
is whether this substance is hazardous in nature or not. The very fact of
keeping such huge quantity of explosive in house is on the face of it is a
hazardous and it is not kept normally by a person unless who deals in
explosive with authorized licence for that purpose. The possession of such
explosive without any authorized licence is a serious matter. Though, it is B
dealt separately because the accused has'·alr~ady been charged under the
Explosive Act. But in this present context ..ican .such unauthorized possession
by a person can be said to be a bonafide, is it not a hazardous or injurious
to the public at large? The hazardous has been defined in Collins Cobuild
English Language Dictionary as "something that is hazardous is dangerous,
especially to people's health or safety. The hazardous has also been defined C
in the New Oxford Dictionary of English as "Risky; dangerous". Aiyar's
Advanced Law Lexicon at page 826 defines 'Hazardous substance' as :

"A solid waste, or combination of solid wastes which because of its
quantity, concentration or physical, chemical or infectious
characteristics may cause, or significantly contribute to an increase in D
mortality or an increase in serious irreversible, or incapacitating
reversible, illness or pose a substantial present or potential hazard to
human health or the environment when improperly treated, stored,
transported, or disposed of, or otherwise managed."

The explosive substance has also been defined in Section 2 of the E
Explosive Substance Act, 1908 which reads as under:

"2. In this Act the expression "Explosive Substance" shall be deemed
to include any materials for making any explosive substance; also any
apparatus, machine, implement or material used, or intended to be
used, or adapted for causing, or aiding in causing, any explosion in F
or with any explosive substances; also any part of any such apparatus,
machine or implement."

Therefore considering the hazardous substance under Section 4(b) mean
that possession of it by any person be it notified area or otherwise is also G
punishable under the Act.

Learned Counsel Shri Shanti Bhushan and Shri Rao tried to play it down
that as per the finding of the bomb demolishing squad it is of low intensity
and cannot fall in category of hazardous substance. We regret, we cannot
accept their submission. This explosive is capable of creating a havoc if it is H
t

194 SUPREME COURT REPORTS (2005] SUPP. 5 S.C.R.

A used for preparing a bomb, it is capable of mass destruction. Any person in
this background possessing this hazardous explosive substance cannot be
credited to have it for bonafide purpose. Therefore, the fact that hazardous .•
•
substance was found at the house of Udai Pratap Singh clearly shows that
the case is covered by Section 4(b) and it. cannot be played down simply
because it has been reported by the bomb demolishing squad that it is of low
B intensity. This explosive subs~.~,J~ certainly hazardous and is capable.of
being used for preparation of bomb or other explosive material for scaring the
people or for causing mass destruction be it in terms of the human beings
or any building or otherwise. This aspect of the matter seems to have not
been adverted by the Review Committee.
c Similarly, learned counsel for the appellant has also placed much emphasis
on the expression "other lethal weapons". AK-56 is a weapon of such a mass
destruction that if it is fired then it can at a time ki11 number of persons
because of his lethal potentiality. The expression "lethal" has also been
defined in Aiyar's Advanced Law Lexicon- which reads as under:
D
"Lethal weapon. A deadly weapon. The term "lethal weapons" means
deadly weapons. "Guns, Swords, pistols, knives, and the like are
lethal weapons as matter of Jaw,. when used within striking distance
of the party assaulted. Others are lethal or not according to their
capability of producing death or great bodily harm in t he manner in
E which they are used."

A lethal weapon is a weapon capable of causing an injury, and if it
is barreled and if a shot, bullet, or other missile can be discharged
from it, it is a firearm. A signal pistol firing a cartridge with explosive
ballistic and containing a phosphorous and magnesium flare is a lethal
F weapon

To give 'legal' is natural meaning, such a weapon should be proved
to be one capable of causing injuries of a more than trivial nature and
of a kind which it might reasonably be expected could lead to death."

G Stroud's Judicial Dictionary of Words & Phrases define~ 'lethal weapon'
as ~nder:

"A lethal weapon is a weapon capable of causing an injury, and if it
is barreled and if a shot, bullet, or other missile can be discharged
from it, it is a firearm. A signal pistol firing a cartridge with explosive
H
S.K. SHUKLA v. STATE OF U.P. [A.K. MATHUR, J.] 195
ballistite and containing a phosphorous and magnesium flare is a A
lethal weapon.,.

AK-56 is a very dangerous weapon and it is used in the warfare as well
as in terrorist activities very frequently. The possession of which in an
unauthorized manner is itself is an offence under Section 4(b) of the Act.
Learned counsel has also brought to our notice the potentiality of creating B
mass destruction by a weapon like AK-56 and invited our attention to the
literature of the AK-47 and AK-56, AK-56 is, in fact, the improved version
of AK-47. AK-47 literature which has been brought to our notice reads as
under:

"AK-47.net: AK-47:- The AK-47 was designed by Mikhail C
Timofeyevich Kalashnikov as a replacement for the SKS and as a
rifle that could be used by Soviet tank crews. In 1946, while working
at the Kovrov weapons plant, Kalashnikov began work on the AK-
47. The AK-47 was accepted as the standard rifle for the Soviet Army
in 1949 and retained that status until it was succeeded by the AKM. D
To this day between 30 and 50 million copies and variations of the
AK-47 have been produced world wide, making it the most widely
used rifle in the world.

The AK-47 is chambered in 7.62X39 and features hardwood furniture
with a fixed stock. The AK-47 has a 16 inch barrel with a muzzle nut E
to protect the threads. The AK-47 features a stamped receiver with a
non ribbed cover plate and magazine. The rifle can be fired in two

.. different firing modes; semi and full auto. The AK-47 has a 800
meter leaf sight that is only adjustable for range. All windage
adjustments must be made by using the front sight. The AK-47 weighs
4,300 g and has a rat e of fire of 600rpm. The rifle will accept most F
synthetic and metal magazines, generally 30 rounds in capacity. The
rifles effective killing range is 1,500 meters, and is generally not used
for more than 300 meters. The original AK-47 was not outfitted for
the use of a bayonet, however the design was changed and a bayonet
was added. The AK-47 also features a hollow compartment in the G
buttstock which was used to keep the cleaning kit." (Source of
information is www.ak-47.net/ak4 7/akru/ak4 7 .html)

AK-56 has the same features except some minor improvement on it,
reads as under:
"Caliber: 7.62X39 H
~-

196 SUPREME COURT REPORTS [2005) SUPP. S S.C.R.

A Action: Gas operated, rotating bolt
Overall length: 874 mm
Weight: 3.80 kg.
Magazine capacity: 30 rounds
The type 56 assault rifle was adopted by PLA in 1956, along with
B Type 56 carbine (which was a licence built Soviet SSKS copy). The
type 56 assault rifle was, in tum, also a licensed copy of the Soviet
AK-47 assault rifle, with minor modifications.

Type 56 is a gas operated, selective fire weapon. The receiver is
machined from steel, the two lugged bolt locks into receiver walls.
C Type Sf ha AK-47 style controls with reciprocating charging handle
and massive safety-fire selector lever at the right side of the receiver.
The furniture was made from wood, and compact version with
underfolding metallic buttstock was also available. The only visible
difference from Soviet AK-47 is a permanently attached spike beyonet,
which folds under the barrel when not in use."
D
The design features has been quoted from the Janes Information Group
reads as under:

"Type 56 basic version with a fixed wooden stock, Type 56-1 with
a vertically folding metal stock, and Type 56-II with a horizontally
E folding metal stock. Except for the differences in the stock and the
lack of a tool kit with the basic variant, the two versions with folding

..
stock are identical to the basic variant.

The Type 56 is such a reliable weapon that it can function normally
after total immersion in mud and water. The fully chromed barrel
F ensures effective operation even at very low temperatures. Unlike the
Aks, the Type 56 is fixed with a foldable bayonet, but the two later
version versions have no bayonet.

All Type 56 assault rifles fire in either semiautomatic or automatic
mode and have an effective range of about 300 m. At full cyclic rate,
G they can fire about 600 rounds per minute semiautomatic. Both the
Type 56-I and Type 56-II can mount a grenade launcher."

The above potentiality of AK-56 is capable of causing mass destruction.
It fires about 600 rounds per minutes, it means 600 bullets if hit all the 600
H targets, it can lead to a mass destruction. Therefore, the possession of such •.
S.K. SHUKLA v. STATE OF U.P. [A.K. MATHUR, J.) 197

unauthorized weapon is dangerous and is capable of mass destruction. It is A
a lethal weapon capable of mass destruction and unauthorized possession
thereof is itself punishable. This aspect was also not been adverted by the
Review Committee. The Review Committee only directed that an unauthorized
possession of the weapons which have been specified in column 2 and 3 of
category I or category 3(a) of Schedule l to the Arms Rules possession of B
it in the notified area is punishable. But if at the same time one of the
weapons fat ls in the category of Section 4(b ), then it does not mean that since
it falls in category 4(a), it stands excluded from category of Section 4(b). If
the weapon falls in the category of Section 4(b) also under the head 'lethal
weapon', then irrespective of the fact that it falls in the category (a) will not
be excluded from category of Section 4(b). We cannot read both the provisions C
of clause (a) and (b) to be of exclusive of each other. Both the provisions have
to be read harmoniously. If the weapon which is specified in clause (a) is
equally covered under clause (b) under the heading of 'lethal weapon', then
it would not mean that it shall stand excluded from Section 4(b). We have to
keep in view the purpose for which this Act was enacted i.e. prevention of D ·
the terrorists activities and we cannot interpret provisions of Section 4(a) and
(b) to be exclusive of each other [Ref: 2005 (6) SCALE 177]. If the weapons
enumerated in clause (a) are also covered in clause (b), then it does not go
out of the net of clause (b ). This aspect was not addressed by the Review
Committee at all. The Review Committee put a complete gloss over possession E
of the explosive substance, that it is not a hazardous or capable of mass
destruction because of its low intensity.

Secondly, the Review Committee has also has entered into the merit of
the matter that accused persons Raghur~j Pratap Singh alias Raja Bhaiya,
Udai Pratap Singh and Akshay Pratap Singh alias Gopalji cannot be connected F
with the recovery of these catchy of arms. The role of the Review Committee
is very limited and the Review Committee has to see a prima facie case and
cannot enter into the merit that whether ultimately the conviction will be
entailed or not or the evidence is so weak to connect the other accused
persons. The role given to the Review Committee under sub-section (4) of
Section 60 is very limited and it has only to see whether there is a prim a facie G
case for proceeding against the accused under the Act or not. The Review
Committee has traveled beyond its scope, the sufficiency of evidence cannot
be gone into by the Review Committee. It is also not the job of the Review
Committee whether confession is admissible or not. Role assigned to Review
Committee is very limited and if the prima facie case connects the accused H
on the basis of the material with the prosecution then it is not for the Review
198 SUPREME COURT REPORTS [2005] SUPP. 5 S.C.R.

A Committee to dilate on that as if they are trying the cases under the Act. As
we have already mentioned above that we need not enter into the political
controversy that whether first order passed was politically motivated or the
second order passed was also equally politically motivated by other party in
power, we do not want to go into these questions. The use of the Act for
B personal benefit of the political parties has to be condemned in no uncertain
terms. This Act cannot be used for the political ends; it is meant for the
benefit of the nation so that the terrorists activities do not disturb the
sovereignty or integrity of the nation. So far as this case is concerned, we are
of the opinion that there is prima facie case for prosecuting the accused
persons. These accused persons were charged under Section 3(3) read with
C Section 4 (a)(b) of the Act. But so far as Section 4(a) is concerned, for
reasons mentioned above, it cannot proceed now. But it can proceed so far
as under Section 3(3) & Section 4(b) of the Act is concerned along with Arms
Act & Explosives Act. Therefore, we allow this appeal in part. We set aside
the order of the Review Committee arid hold that the respondents can be
D prosecuted under Section 3(3) and Section 4(b) of the Act and other provisions
of the Explosive and Arms Act. The accused, Mr. Udai Pratap Singh and
Raghuraj Pratap Singh alias Raja Bhaiya may surrender before the Judge,
Designated Court, under POTA Act/Sessions Judge, Kanpur Nagar within a
week and apply for bail. In case they fail to appear before the Judge, the
Judge, Designated Court under POTA Act, Kanpur Nagar get them arrested.
E So far as Akshay Pratap Singh is concerned, as h'e is already on bail, he need
not to surrender. However, any observation made in this order will not
prejudice their trial.

SLP(Crl) 1521 of 2004
F This petition is directed against the order passed by the High Court
granting the bail. By this petition, the petitioner has challenged the order
passed by the High Court of Judicature, Allahabad releasing Akshay Pratap
Singh @ Gopalji on bail. Since the bail has already been granted and he was
in detention for a long time, we do not propose to interfere with the bail
G order, but observation made by the learned Judges in the order cannot be
sustained as it is contrary to our finding. Therefore, SLP(Crl) 1521 of 2004
is dismissed.

Writ Petition (Cr/) 132-134 of 2003

H This petition is filed against the order passed by the State Government
dated 29.8.2003 whereby public prosecutor was directed to withdraw the
S.K. SHUKLA v. STATE OF U.P. (A.K. MATHUR. J.] 199

POTA cases against the accused persons. An application was moved by A
public prosecutor for withdrawal of theses cases before Special Judge, though
no order was passed permitting withdrawal of these cases. However, in view
of our finding in SLP (Crl) 5609 of 2004, we cannot affirm the order of the
State Government for withdrawal of these cases and consequential application
made by t.he public prosecutor for withdrawal of these cases. The order
passed by the Government dated 29.8.2003 as well as application moved by B
the special public prosecutor before the Special Judge, Kanpur Nagar cannot
be sustained and accordingly the order passed by the State Govern~ent and
the application moved by the special public prosecutor before the Special
Judge at Kanpur, both are rejected. In this connection our attention was
invited to 1983(1) SOC438, 1980(3) SCC435, 1996(2) sec 610, 2002(3) sec 510. c
In these cases it has been laid down that the public prosecutor has to
shoulder a greater responsibility for withdrawal of the cases under Section
321 Cr.P.C. In Sheonandan Paswan v. State of Bihar and Ors., [1983] l SCC
438, it was held, that the settled law laid down by the Supreme Court has been
that the withdrawal from the prosecution is an executive function of the Public
Prosecutor and the ultimate decision to withdraw from the prosecution is his. D
Before an application is made under Section 321, the ,Public Prosecutor has
to apply his mind to the facts of the case independently without being subject
to any outside influence. The Government ma~ suggest to the Public Prosecutor
that a particular case may not be proceeded ".N!th, but nobody can compel him
to do so. However, Section 321 of the Code does not lay any bar on the Public E
Prosecutor to receive any instruction from the Government before he files an
application under that sectio_n. If the Public Prosecutor received such.
instructions, he cannot be said to act extraneous influence. On the contrary,
the Public Prosecutor cannot file an application for withdrawal of a case on
his own without instruction from the Government, since a Public Prosecutor
cannot conduct a case absolutely on his own, or contrary to the instruction F
of his client, namely, the Government. Unlike the Judge, the Public Prosecutor
is not an absolutely independent officer. He is appointed by the government
for conducting in court any prosecution or other proceedings on behalf of
the Government concerned. So there is the relationship of counsel and client
between the Public Prosecutor and the Government. If the Government gives G
instructions to a Public Prosecutor to withdraw from the prosecution of a
case, the latter after applying his mind to the facts of the case may either
agree with instructions and file a petition stating grounds of withdrawal or
disagree therewith having found a good case for prosecution and refuse to
file the withdrawal petition. In the latter event the Public Prosecutor will have
to return the brief and perhaps to resign, for, it is the Government, not the H
200 SUPREME COURT REPORTS [2005] SUPP. S S.C.R.

A Public Prosecutor, who is in the know of larger interest of the State". The
Public Prosecutor cannot act like a post box or act on the dictate of the State
Governments. He has to act objectively as he is atso an officer of the Court.
At the same time court is also not bound by that. .The courts are also free
to assess whether the prima face case is made or not. The court, if satisfied,
B can also reject the prayer. However in the present case we have examined the
matter and fou~d that there is a prima facie case to proceed against the
accused persons under Section 4(b) of the Act a~d other provisions of the
Explosive or Anns Act, therefore, the sanction granted by the Government
and application moved by public prosecutor for withdrawal of the cases
cannot be sustained. Hence writ petition Nos.132-134 of2004 is accordingly
C allowed and the order of the State Government dated 29.8.2003 withdrawing
the cases against the accused persons is quashed, likewise direction to the
public prosecutor for withdrawing the cases from the Court.

Transfer Petition No.82-84 of 2004

D This petition· relates to transfer of the cases from State of U.P. to any
other court under Section 406 Cr.P.C. 1993 in criminal case No.3/2003 in
crime case No. I 0/03 under Sections 3 & 4 of POTA Act titled as State vs
Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya and Akshya
Pratap Singh @ Gopalji pending before the Designated Court under POTA
at Kanpur to the Designated Court under POTA at Delhi or before any other
E Special Judge at Delhi. ·1 00'.' · ·

Likewise, crime case Nos. 113/2002 !l~ 209/2002 under Sections 2/3
of U.P. Gangster and Anti-social Activities (Prevention) Act, 1986 titled as
State vs Udai Pratap Singh, Raghu Raj Pratap Singh @ Raja Bhaiya and
F Akshya Pratap Singh @ Gopalji pending in the court of Special Judge
(Gangster Act), Allahabad, U.P. to the court of Special Judge at Delhi or to
any other court at Delhi.

The petitioner has stated that there will be no chance of fair trial in the
State of U.P. as most of the witnesses are afraid to speak against the
G respondents and even one Shri Rajender Yadav was killed as he deposed
against these persons. It was also mentioned that the State Government is not
serious. The State Government has already withdrawn the POTA cases against
the accused persons and directed the public prosecutor to withdraw these
cases. In this background, there is no likelihood of fair trial in the State of
U.P. The respondents failed to file counter affidavit, but an affidavit has been
H filed by one Dinesh Priyadarshi on "behalf of respondents No. 2 to 4. But no
S.K. SHUKLA v. STATE OF U.P. [A.K. MATHUR. J.] 201

affidavit was filed by the respondents though they were made a party to the A
petition. We failed to understand why the affidavit has not been filed by
respondents themselves. It is alleged that accused Raghuraj Pratap Singh
alias Raja is an independent MLA who is supporting the present government
and is a Minister in the government. After going through the transfer petition
and counter affidavit on behalf of the respondents, we are of the opinion that
there is likelihood of miscarriage of justice in the background mentioned B
above. It is alleged that murder of Shri Rajender Yadav has taken place and
his younger brother is connected with this case. Therefore in the interest of
justice both these cases be transferred to any other court where, in a proper
atmosphere, the matter can be dealt with fairly. In the interest of justice, we
direct that criminal case No.3/2003 in crime case No. I 0/03 under Sections 3 C
& 4 of POTA Act titled as State vs Udai Pratap Singh, Raghu Raj Pratap
Singh@ Raja Bhaiya and Akshya Pratap Singh@ Gopalji, and case No. 113/
2002 & 209/2002 under Section 2/3 of U.P. Ganster & Anti Social Activities
(Prevention) Act,'.1986 titled as State of U.P. v. Udai Pratap Singh, Raghu Raj
Pratap Singh @ Raja Bhaiya & Akshya Pratap Singh pending in the Court
of Special Judge (Gangster Act), Allahabad, U.P. be transferred to a Special D
Judge in M.P. Let the Hon. Chief Justice nominate any Special Judge to try
these cases. The transfer petitions are accordingly allowed.

VM Writ petition, Appeals and Transfer petition allowed.

-