Holding

The Court held that the interpretation of Section 5 of TADA and the effect of a default in investigation under Section 20(4)(bb) read with Section 167(2) CrPC must be settled authoritatively by a Constitution Bench, and therefore referred the matter for such determination.

Summary

Sanjay Dutt, accused in the Bombay blast case, was arrested under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) for possession of unauthorised arms. The charge‑sheet was filed after the statutory period of 180 days, and the petitioner sought bail on the grounds that mere possession of arms without intent to use them for terrorist activity does not attract Section 5 of TADA, and that a default in investigation creates an indefeasible right to bail under Section 20(4)(bb) read with Section 167(2) of the CrPC. The Court denied bail but, noting that the interpretation of Section 5 and the effect of the investigation‑default provision would impact many cases, ordered the matter to be referred to a Constitution Bench for authoritative resolution. The order also highlighted the need to reconsider the extension of detention period and notice requirements under the same provisions.

Issues considered

Whether possession of unauthorised arms under Section 5 of TADA constitutes an offence absent proof of intent to use them for terrorist or disruptive activities.
Whether the proviso to Section 167(2) CrPC, read with Section 20(4)(bb) of TADA, creates an indefeasible right to bail when the investigation exceeds the prescribed 180‑day period.
Whether the investigating agency must give notice to the accused before extending the detention period beyond 180 days up to one year.
Whether the extension of detention period under Section 20(4)(bb) can be exercised without infringing principles of natural justice.

Legislation cited

Code of Criminal Procedure, 1973s. 167(2), s. 173, s. 209(b), s. 309(2)
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 20(4)(bb), s. 24(4)(b), s. 5

Subjects

TADASection 5possession of armsbailinvestigation defaultSection 167 CrPCconstitutional benchterrorismpreventive lawindefeasible rightnotice requirement

Judgment

SANJAYDUTI A
v.
STATE THROUGH CBI, BOMBAY

AUGUST 18, 1994
B
[B.P. JEEVAN REDDY AND N.P. SINGH, JJ.)

Terrorists & Disrnptive Activities (Preve11tio11) Act, 1987-Arrest a11d
Dete11ti01t-Refere11ce to the Comtitutio11 Benclt-Reaso11s foi-/11terpretatio11
of Sec. 5--Effect on large 11umber of case:.-Setting the issue authoritative-
1)'--0biter Dicta of Supreme Coun-Bindi11g upon other couns. c
Ten-onst and Disrnptive Activities (Prevention) Ac~ 1987-Sec. 5-Ar-
rest a11d Dete11tio1t- Unauthorised possession of specified am1s and ammu11i-
rio11-Naw with the object of use-Whether necessary-To be autltoritatively
settled by the Constitution Bench. D
Terrorist a11d DiSrnptive Activities (Preve11tio11) Act, 1987-Sec.
24(4)(b) read with Section 167(2) Cr.P.C.-Default in completion of inves-
tigation within 180 days-W/1ether indefeasible right in accused to be released
011 bail-To be aurhoritatively and expeditiously settled by the Constitution
Bench. E

Sanjay Dutt, one of the accused in the Bombay Blast Case was
arrested and detained pending investigation by CBI u/s S of TADA for
possession of illegal arms. However, the charge sheet was filed beyond six
months of his arrest. The Speeial Leave Petition was filed for grant of bail F
on the ground that mere possession of illegal arms was no offence and that
Section S could be invoked only if there was some material to show that
the person who was possessed of the arms intended it to be used for
terrorist or disruptionist activity. Further that the filing of charge sheet
beyond 180 days gave the accused an indefeasible right of bail on account
of the 'default' by the investigating agency in the completion of the inves- G
ligation within the maximum period prescibed.

Denying bail, but recommending that the questions raised in the SLP
be decided expeditiously and authoritatively by the Constitution Bench,
this Court H
729
730 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A HELD : 1.1. Since even the obiter dicta of the Supreme Court ls:
1
binding upon other Courts in the country and because the interpretation ·
placed upon Sec. S amounted to reading words into that section that were
not there and as the interpretation of Sec!ion 5 one way or the other was'
likely to affect a large number of cases in the country it was appropriate
for the Constitution Bench to pronounce on the matter and authoritatively
B settle the issue. (735-C]

Kartar Singh v. State of Punfab, (1994) JT 2 423, referred to.

2.1. Investigation should b" concluded within 180 days of the arrest
C but the court, on being satisfied \lith the progress of the investigation and
the reasons for the continued detention of the accused was empowered to
extend the said period to one yeair. There was no provision for issuance of
notice to' the accused while extending the period of detention. If the
reasoning 'and logic underlying the observation in Hitendra Vishnu ;
D 17iakur's case were extended to Section 167(2) of cr:P.C., ii would mean
that every time the Magistrate authorised the detenntion of the accused in
custody beyond 15 days, he W'oulcl be obliged to give notice to the accused
and hear him. Such a course was neither feasible nor warranted. The view
taken by the Division Bench needed re-consideration. (737-F to H, 738-A]
E
Hitendera Vishnu 17iakur & Ors. etc. etc. v. State of Maharashtra &
Ors., JT (1994) 4 SC 255, referred to.

2.2. Section 167 Cr.P.C. authorised detention of an accused in cus-
tody during investigation. After the expiry of the statutory period men-
F tioned therein, if the investigation was not concluded the accused was
entitled to be released on bail an1l that would be deemed to be under the
provisions of Chapter XXXIII of the Code. The right to be released on bail
under proviso to Section 167(2) accrued to an accused at a particular
stage. But could it be held to be an indefeasible right which could he
G exercised at any stage including the stage of trial? The meaning and effect
of the said provision needed to be authoritatively pronounced upon.
(738-C, D, F]

Ram Narayan Singh v. The State of Delhi & Ors., (1953] SCR 652;
Naranjan Singh Nathawan v. State of Punjab & Ors., (1952] SCR 395 and
H A.K. Gopalan v. Govt. of India, (1966) 2 SCR 427, referred to.
SAN JAY DUTT v. C.B.I. BOMBAY 731

CIVIL APPELLATE JURISDICTION : S.L.P. (Crl.) Nos. 1834-35 A
of 1994.

From the Judgment and.Order dated 4.7.94 of the Designated Court
at Bombay in M.A. No.118/94, B.A. No. 31/94 and B.B.C. No.l of 1993.

Ram Jethmalani, Shanti Bhushan, Kapil Sibal, Rajinder Singh, S.B. B
Jaisinghani, Mahesh Jathmalani, C.B. Wadhwa, P.K. Dey, A.K. Sahu, Ms.
Rani J ethmalani and Ms. Lata ~ishnamurthi for the Petitioner.

G. Natarajan, V.K. Agarwal and P. Parmeswaran for Respondent.

Caveator in-person A.S. Bhasme for State of Maharashtra. c
The following Order of the Court was delivered :

The purpose of this order is merely to indicate the reasons for
referring the matter to the Constitution Bench.
D
Section ·s of the Terrorist and Disruptive Activities (Prevention) Act,
1987 (TADA) provides :

'5. Possession of certain unauthorised arms, etc., In specified
. areas.- Where any person is in possession of any arms and am- E
munition specified in Columns 2 and 3 of Category I or Category
III(a) of Schedule I to the Arms Rules, 1962, or bombs, dynamite
or other explosive substances unauthorisedly in a notified area, he
shall, notwithstanding anything co9tained in any other law for the
time being in force, be pubishable with imprisonment for a term
which shall not be less than five years but which may eXtend to F
imprisonment for life and shall also be liable to fine."

According to this section, unauthorised possession of any of the
specified arms and ammunition (specified in Columns 2 and 3 of Category-
! or Category III(a) of Schedule-I of the Arms Rules, 1962) or bombs,
dynamite or other explosive substances in a notified area is sufficient by G
itself to attarct the provision. Mensrea is not an ingredient of the offence.
The non obstante clause "notwithstanding anything contained in any other
law for the time being in force" - gives the provision an over-riding effect.
The punishment for such unauthorised possession is imprisonment for a
term which shall not be less than five years but which may eXtend to H
732 SUPREME COURT REPORTS [1994] SUPP. 2 s:c.R.

A imprisonment for life besides fine.

The petitioner is one of the accused in Bombay Blast which took
place on 12.3.1993 registered as Case No.1 of 1993 on the file of the
Designated Court for Greater Bombay. The case of the prosecution against
the petitioner, set out in the chargesheet, is that on 16th January, 1993 he
B "knowingly and intentionally procurred from accused Anees Ibrahim Kas-
kar through Sarneer Ahmad Hingora, Hanif Kadawala, Baba @ Ibrahim
Musa Chauhan, Abu Salem Abdul Qayoom Ansari and Manzoor Ahmed
Sayed Ahmed 3 AK-56 rifles, 25 hand grenades and one 9 mm. Pistol and
cartridges for the purpose of comitting terrorist acts. By keeping the AK-56
c rifles, hand grenades, pistol and cartridges in the possession willingly,
accused Sanjay Dutt facillitated the objectives. Some parts of the rifle, the
9 mm. pistol and 53 rounds of live cartridges were recovered during the
course of the investigation. Accused Yusuf Mohsin Nullwala, Kersi Bapuji
Adenia, Rusi Frarnrose Mulla, Ajay Yashprakash Marwah, who caused
D wilful destruction of evidence namely 1 AK-56 rifle, one 9 mm. pistol, and
cartriges by deliberately removing them from the house of accused Sanjay
Dutt, at his instance, with the intention to protect the offender i.e., Sanjay
Dutt from legal consequences and therefore, they are also guilty of the
offence u/s 201 !PC".

E The prosecution is relying upon the statements of the servant of the
petitioner and of the police guard posted at his house and certain other
circumstances. The Petitioner himself made a confession to the police,
which has remained unretracted till today, wherein he admitted receiving
three AK-56 rifles on 16.1.1993 alongwith ammunition from the aforesaid
p persons but stated that two days after he returned two of them and retained
only one for the purpose of self-defence. He stated that during those days
the communal situation in Bombay was tense and there were constant
threats to the lives and property of the petitioner and members of his
family. Only with a view to defend himself in an extreme eventuality, the
petitioner stated, he acquired the AK-56 rifle and that as soon as he came
G to know that the persons who sold the said rifle to him were implicated in
the case, he instructed his people to destroy the said weapon. He stated
that he did so out of fear.

Sri Ram Jethmalani, learned counsel for the petitioner contends that
H possession of any of the arms and arnmunitions or other material specified
SANJAY DUTI v. C.B.I. BOMBAY 733

in Section 5 per se does not attract Section 5. More particularly, he A
...' submitted, possession of a weapon exclusively for self-defence can certainly
not attract the said provision. Learned counsel pointed out that according
to Section 5 read with the relevant entries in Schedule I to the Arms Rules,
1962, even the mere unauthorised possession of a pistol or a revolver in
the notified area would by itself attract Section 5, if read literally. He B
submits that when the legislative competence of the Parliament to enact
TADA was questioned in Kartar Singh v. State of Punjab, 1994 J.T. (2) 423,
this Court affirmed the Parliament's competence with reference to inter a/ia
Entry (I) of List-I of the Seventh Schedule to the Constitution. For this
reason, he says, the requirement of the said Entry must necessarily be read
into Section 5. In other words, according to the learned counsel, the C
prosecution must allege and establish that the weapon unauthorisedly in
possession of the accused was intended to be used for any of the objects
mentioned in Sub-Section (1) of Section 3 of the Act. He points out that
Section 2(h) of the Act defmes 'Terrorist act' and 'Terrorist' as under :-
D
Sec. 2(h). "terrorist act" has the meaning assigned to it in sub-sec-
tion (1) of Section 3, and the expression "terrorist" shall be con-
strued accordingly;

Learned counsel urges that before a person is charged for having
committed a terrorist act, it must be alleged that he committed any of the E
acts specified in sub-section (1) of Section 3. Similarly, any person, who is
being charged for conspiracy, his actions must have nexus with the objects
mentioned in sub-section (1) of Section 3. Section 5 does not say that the
accused concerned found in possession of any arms and ammunitions
specified, must be in possession of the same for any of the objects men- F
tioned in sub-section (1) of Section 3. But unless the possession of the arms
and ammunitions specified in Section 5 are related or connected with any
of the objects mentioned in sub- section (1) of Section 3, the accused shall
not be deemed to be a 'terrorist' within the meaning of the Act and the
possession of any arms and ammunitions specified therein, shall not be G
deemed to be a 'terrorist act', says Sri Jethrnalani. He relies upon the
observations in the concurring opinion of R.M. Sahai, J. in Kartar Singh.
In paragraphs 478 and 479 the learned Judge opined that to attract Section
5 there must be some inter- relation between Section 5 and Sections 3 and
4 of the Act, howsoever remote it may be. The following observations are
particularly relied upon : H
734 SUPREME COURT REPORTS [1994] SUPP. 2 S.C.R.

A "In Sections 3 and 4 the offence arises on the act having been done
whereas in Section 5 it is founded only on possession. Even under
sub-section (3) of Section 3 person is liable to be prosecuted for
abeiting the offence if he assists or communicates with a terrorist. I
Sub-sections 5 and 6 inserted by Act 43 of 1993 to Section 3 also
B require that a person can be prosecuted only if he is found to be
a member of a terrorist gang or terrorist organisation etc. The Act,
therefore, visualises prosecution of the terrorist or disruptionist for
offences under Sections 3 and 4 and in others only if they are
associated or related with it. That is in keeping with the objective
of the Act. The legislation has been upheld as the legislature is
c competent to enact in respect of a cirme which is not otherwise
covered by any Entry in List II of the Seventh Schedule. The
definition of the cirme, as has been discussed earlier, is contained
in Sections 3 and 4 of the Act and it is true that while defining the
..
crime it is open to the legislature to make provision open to the
D legislature to make provision which may serve the objective of the ·
legislation and from a wider point of view one may say that
possession of such arms, the use of which may lead to torrorist
activity, should be taken as one of the offences as a preventive or
deterrent provision. Yet the1·e must be some inter'relatifin between
E the two howsoever, remote it may be. The harshness of the t
provisions is apparent as all-ptose provisions of the Act for
prosecuting a person including forfeiture of property, denial of bail
etc., are applicable to a person accused of possessing any arms
and ainmunition as one who is charged for an offence under
Sections 3 and 4 of the Act. It is no doubt true that no one has .
F justification to have such arms and ammunitions as are mentioned
in Section 5, but unjustifiable possession does not make a person
a terrorist or gisruption~t. Even under Ireland Emergency
Provisions Act, 1978 on which great reliance was placed by learned
Additional Solicitor General there is no such harsh provision like
G Section .5. Since both the substantive and procedural law apply to
a terrorist and disruptionist or a terrorist act or a disruptive act,
it is necessary, in my opini•on that, this Section if it has to be
immune from attack of arbitrariness may be invoked only if there
, is som~ material to show that the person who was possessed of the
H arms intended it to be used for terrorist or disruptionist activity or

r
SAN JAY DUTii·. CB.I. BOMBAY 735

it \ra.s an arm and ammunition \Vhich in fact \Vas used. 1' A

It may be noticed that the said observations were !!lade on a submis-
sion "raised in the \VTitten submissions only". In other words, it does not
appear that the said issue was raised or argud before the Constitution
Bench. On this basis, it is contended by the other side that the said
observations are in the nature of obiter dicta and cannot be treated as a B
decision.

Since even the obiter dicta of this Court is said to be binding upon
other Courts in the country and also because the interpretation placed
upon Section 5 by the learned Judge amounts to reading words into Section C
5 which are not there and further because interpretation of Section 5 one
may or the other is likely to affect a large number of cases in the country,
we think it appropriate that the matter is pronounced upon by the Con-
stitution Bench so as to authoritatively settle the issue.
D
There is yet another issue which is raised by the· petitioner in the
additional grounds based upon Section 20(4)(bb) of TADA. It is submitted
that the charge-sheet in this case was filed beyond six months of bis arrest
but no order extending the petitioner's detention was made by the Desig-
nated Court with 1101ice to the petitio11er, before the expiry of 180 days. In
this context, the orders of the Bombay High Court granting him bail, or E
continuing it, are said to be of no significance, as held by the Designated
Court itself in the order in question. (The Designated Court held that
notwithstanding the said orders, the petitioner must be deemed in law to
be in custody.) If so at the end of 180 days from the date of bis arrest, says
the counsel, an indefeasible right accrued to the petitioner to be enlarged F
on bail soon upon the expiry of 180 days. In support of this contention,
strong reliance is placed upon the Judgment of this Court in Cirminal
Appeal Nos. 732-735 of 1993 decided on July 12, 1994 (Hitendra Vishnu
Thakur & Ors. etc. etc. v. State of Maharashtra & Ors., J.T. (1994) 4 SC 255.
Among other questions the said decision deals with the meaning, effect and
retrospectivity of clause (bb) in sub-section (4) of Section 20 of TADA G
We may read sub-section 4 in full at this stage ;

"(4) Section 167 of the Code shall apply in relation to a case
involving an offence punishable under this Act or any rule made
thereunder subject to the modification that- H
736 SUPREME COURT REPORTS 11994] SUPP. 2 S.C.R.

A (a) the reference in sub-section (1) thereof to "Judicial Magis-
trate" shall be construed as a reference to ''Judicial tvtegistrate or
Executh·e Magistrate or Special Executi,·e Magistrate";

(b) the references in sub-section (2) thereof to "fifteen days",
"ninety days" and "sixty days", wherever they occur, shall be con-
B
strued as references to "sixty, days", and "one hundred and eighty
days" respectively; and

(bb) PrO\ided further that if it is not possible tc ·complete the
investigation within the said peiod of one hundred and eightly days,
C . the Designated Court shall ext~nd the said period up to one year,
,on the report of the Public Prosecutor indicating the progress of
·the investigation and the specific reasons for the detention of the
accused beyond the said period of one hundred and eightly days;
and
D
(c) sub-section (2-A) thereof shall be deemed to have been
omitted."

The Division Bench, construing the said provision in the light of
Section.167 of the Criminal Procedure Code held thus:. "(The proviso to
E Section 167(2) of the Code read with Section 20(4)(b) of TADA, therefore,
creates an indefeasible right in an accused person, on account of the
'default' by the investigating agency in the completion of the investigation
within the maximum period prescribed or extended, as the case may he, to·
seek an order for his release on bail... .... As a consequence of the amend-
F ment, an accused after the expiry of 180 days from the date of his arrest
becomes entitled to bail irrespective of the nature of the offence with which
he is charged, where the pros<0cution fails to put up challan against him on
completion of the investigation. With the amendment of clause (b) of
sub-section (4) of Section 20 read with the proviso to sub-section (2) of
Section 167 of Cr.P .C., an indefeasible right to be enlarged on bail accrues
G in favour of the accused, if the police fails to complete the investigation
and put up a challan against him in accordance with law under Section 173
Cr.P.C. An obligation, in such a case, is cast upon the Court, when after
the expiry of the maximum period during which an accused could be kept
in custody, to decline the police request for further remand except in cases
H governed by clause (bb) of Section 20(4). There is yet another obligation
SANJAYDUTI1·. CB.I. BOMBAY 737

also \vhich is cast on the Court and that is to inform the accused of his A
right of being released on bail and enable him to make an application in
that behalf.. ... Thus, we find that once the period for filing the charge (bb)
has been granted by the Designated Court or the period of extension has
also expired, the accused person would be entitled to mm·e an application
for being admitted to bail under sub-section (4) of Section 20 TADA read
B
with Section 167 of the Code and the Designated Court shall release him
on bail. if the accused seeks lo be so released and furnishes the requisite
bail. ....... fl would, therefore, sen·e the ends of justice ·if both sides are
heard on a petition for grant of bail on account of the prosecution's
'default'. Similarly, when a repo11 is submitted by the public prosecutor to
the Designated Court for grant of extension under clause (bb), its notice c
should be issued to the accused before granting such an extension so that
an accused may have an opportunity to oppose the extension on all
legitimate and legal grounds available to him. It is true that neither clause
(b) nor (bb) of sub-section (4) of Section 20 TADA specifically provide
for the issuance of such a notice but in our opinion the issuance of such a D
notice must be read into these provisions both in the interest of the·accus'ed
and the prosecution as well as for doing complete justice between the
parties. This is a requirement of the principles of natural justice and the
issuance of notice to the accused or the public prosecutor, as the case ~ay
be, would accord with fair play in action, which the courts have always
encouraged and even insisted upon." E

We are of the respectful opinion that the said proviso may have been
conceived to prod the prosecution to proceed with the complete the
investigation with all promptitude. The idea is that the investigation should
be concluded within 180 days of the arrest but in case it could not be F
concluded and the public prosecutor reports the progress of investigation
and the specific reasons for the detention of the accused beyong the period
of 180 days, the court - evidently on being satisfied with the progress of the
investigation and the reasons for the continued detention of the accused •
is empowered to extend the said period to one year. The absence of words G
providing for issuance of notice to the accused while extending the period
of detention tends to support this view. If the reasoning and logic under-
lying the aforesaid observations in Hitendra Vishnu Thakur are extended to
Section 167(2) of Cr.P.C., as it may well be contended, it would mean that
every time the Magistrate authorises the detention of the accused in
custody beyond 15 days, he would be obliged to give notice to the accused H
738 SUPREME COURT REPORTS [1994) SUPP. 2 S.C.R.

A and hear him. Such a course may neither be feasible nor warranted. In our
opinion, the view taken by the Division Bench in Hitendra Vishnu Thakur
probably calls for a re-consideration.

It has been said in the said judgment that after the expiry of the
statutory period mentioned in proviso to sub-section (2) of Section 167 and
B sub-section (4) of Section 20 of the TADA and 'indefeasible right' is
created in a accused person on account of the default by the investigating
agency in the completion of the investigation. But can such a right be
exercised by an accused who in the meantime has been remanded to
custody under other provisions of the Code like Section 309(2) and Section
C 209(b) of the Code. ll need not be pointed out that Section 167 is a
provision regarding authorising detention of an accused in custody during
investigation. After the expiry of the statutory period mentioned therein, if
the investigation is not concluded the accused becomes entitled to he
released on bail. When such accused is released, then it shall be deemed
D that he has been released under the provisions of Chapter XXXlll of the
Code. According to us, the tight to he released on hail under proviso to
sub-section (2) of Section 167, accrues lo an accused at a particular stage.
But can it be held to be an 'indefeasible right' which can be exercised at
any stage including the stage of trial'? Even a Habeas Corpus application
E on the ground that there is no valid order of remand or detention of the
accused to custody, has to be dismissed, if it is found that on the date of
the return of the Rule, the accused is in custody on the basis of a valid
order of remand or detention. (Ram Narayan Singh v. 17te Stale of Delhi
and others, (1953) SCR 652; Naranjan Singh Nathawan v. Stale of Punjab
& Others, (1952] SCR 395 andA.K. Gopalan v. Government of India, (1966)
F 2 SCR 427). In short, the meaning and effect of the said provision has to
be authoritatively pronounced upon.

Yet another contention raised by Sri Jethmalani relates to interpreta-
tion of sub-section (8) of Section 20 in the facts ar.d circumstances of the
G case. We need not however, refer to it - nor to his other arguments - since
we are referring the very Special Leave Petition to the Constitution Bench
where, of course, it would be open to both the parties to raise all such
contentions as are open to them in law.

H When we indicated our inclination to refer the matter to the Con-
SANJAYDUITv. C.B.l.BOMBAY 739

stitution Bench, Sri Jethmalani made a fervent plea for releasing the ·A
petitioner on interim bail. We are, however, not inclined to accede to the
said request. It is sufficient to observe that it shall be open to the petitioner
to make this request, if he is so advised, before the Constitution Bench.

Since the present Special Leave Petition is one directed against an
order refusing bail and also because it is in the interests of justice that the B
questions indicated hereinabove are decided authoritatively at an early
date, this is a case, in our opinion, which merits an expeditous hearing. It
is open to the learned counsel for the parties to make a mention in this
behalf before the Hon'ble Chief Justice of India.

A.G.