STATE OF TAMIL NADUversusSIVARASAN @RAGHU @SIVARASA AND ORS.

                        STATE OF TAMIL NADU                                    A
                                  v.
                         SIVARASAN @ RAGHU
                        @ SIVARASA AND ORS.

                           OCTOBER 31, 1996.
                                                                               B
                 [G.N. RAY AND G.T. NANAVATI, JJ.]

      Criminal Law :

      Terrorist and Disruptive Activities (Prevention) Act, 198 7: Section     C
15. Confession-Recording of-By a Police officer-Typewritten confession
words "records in writing"-Meaning of-Held: wider meaning had to be
given to include typewriting-Confessional statement need not be recorded
by Superintendent of Police in his own handwriting-He could take help
of another person or instrument like typewriter-But he must not leave
work of recording confession to his subordinates-Confession must be            D
recorded in his presence and hearing and under his direct control.

      Section 5-Ingredients of-Held: Prosecution must prove accused
was in conscious "possession", "unauthoriiedly", in "notified area" of
any of the specified arms and ammunition-No further nexus with any
terrorist or disruptive activity was required to be proved as statutory E
presumption would arise that said arm or explosive substance was meant
to be used for terrorist or disruptive act.

      Section 5-Accused found in possession of explosive substances
(Gellatine sticks) for their use in Sri Lanka-Accused did not have intention
to commit terrorist or disruptive activity within India-Held: Accused          F
rebutted presumption arising out ofhis unauthorisedpossession ofExplosive
substance in a notified area-Acq,dttal upheld

      Section 5-Explosive substances-Meaning of-Held: could not be
given same meaning as under explosive Substances Act-It must be complete       G
article or device capable of exploding-Empty cells or part for making
bomb not covered-However, gelatine sticks were explosive substances-
Provisions must be construed strictly.

       Terrorist and Disruptive Activities (prevention) Rules, 1987: Rule
l 5(3)(b). Corifession-Certificate and memorandum made at the end of-          H
                                    243
    244                     SUPREME COURT REPORTS [ 1996] SUPP. 8 S.C.R.


A Held: need not be written down by Superintendent of Police himself-
    Typewritten certificate and memorandum signed by him were sufficient.

          Explosive substances Act, 1908-'-Section 5.

          Ingredients of-Accused found in possession of explosive substances
B as defined by Act- Such articles were parts of bombs and grenades-
  Accused did not possess them for any lawful object-Held: All ingredients
  ofoffence under S.5 satisfied-Accused guilty ofcommission ofthat offence.
  Section 7-Requirement of-Held: Section did not require sanction but
  only consent for prosecuting a person-Object of using word "consent"
C instead of "sanction" was to have purely subjective appreciation of matter
  before giving consent-Investigating Officer need not submit statement of
  witnesses before Collector for obtaining his consent.

          Penal Code, 1860; Section 120-B read with Section 3(3), TADA.

D         Conspiracy-Charge of-Certain articles like incomplete grenades
    or bombs or their parts and vehicles used in transporting same were
    recovered from accused-No evidence led by prosecution to prove that
    accused intended to commit terrorist act within India or to endanger
    life or cause injury to property in India-Evidence disclosed accused
E   involved in manufacturing bombs and grenades for their use by LITE in
    Sri Lanka Held: the said recovery, even if believed, not sufficient to prove
    charge of conspiracy-Ingredients ofS.3(3) TADA were not satisfied-S.4
    of the Explosive Substances Act not applicable.

          Section 309-Attempt to comm ii suicide-Proofof-Accused admitted
F that he tried to bite a cyanide capsule when police tried to take him into
    custody-Offence also proved-ffeld: acquittal set aside.

          Criminal Procedure Code, 1973:

G         Offence-Under S.4 of Explosive Substances Act, 1908-Accused
    charged with-Held: accused could be convicted and punished for a lesser
    offence under S.5 of that Act if ingredients constituting that offence were
    established.

H         Interpretation of Statutes :
                    STATEOFT.N. v. SIVARASAN                        245


     Interpretation-Rules of-Strict construction-Held: Statute             A
containing stringent provisions and providing heavier punishments must
be construed strictly.

     Words and Phrases:

     "Recorded in ·writing", "type1vriting"-Meaning of-In the context B
of-S 15 of the Terrorist and Disruptive Activities (Prevention} Act, 1987.

      "Explosive substances"--Meaning of-Jn the context of S.5 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987.

      "Under his own hand"-Meaning of-In the context of R.15{3){b)         C
of the Terrorist and Disruptive Activities (Prevention) Rules, 1987.

      "Consent "-Meaning of-In the context of S. 7 of the Explosive
Substances Act, 1908.
                                                                           D
      The respondents-accused were acquitted of charges under
Sections 120-B of the Indian Penal Code, 1860 read with Sections
3(3) and 5 of the Terrorist. and Disruptive Activities (Prevention) Act,
1987 and Sections 4 and 5 of the Explosive Substances Act, 1908.
Being aggrieved the appellant-State preferred the present appeal.
                                                                           E
      According to the prosecution, the accused who were Sri Lankan
nationals and members of Liberation Tamil Tigers Elam (LTTE) came
to India without any travel documents. Since then the accused were
engaged in obtaining explosive substances, manufacturing bombs and
sending them to LTTE in Sri Lanka. On the fateful day when the
police were trying to take accused (A-I) into custody he tried to bite     F
a cyanide capsule. On further investigation accused (A-1) was found
in the possession of explosive substance (gelatine sticks) for their use
in Sri Lanka. The accused were also in possession of explosive
substances as defined in Explosive Substances Act, 1908. Such explosive
substances were parts of bombs and grenades and the accused possessed      G
them not for any lawful object. Certain articles like incomplete
grenades or born bs or their parts and vehicles used in transporting
them were recovered from the accused. It was the further case of the
prosecution that the accused (A-2 and A-9) had made typewritten
confessional statements before the Superintendents of Police, PWs 51
and~.                                                                      H
    246                    SUPREME COCRTREPORTS [1996] SUPP. 8 S.C.R.


A

                                                                               -
         On the basis of the evidence adduced on behalf of the prosecution,
    the Sessions Judge came to the conclusion that the charges levelled
    against the accused were not established. The Sessions Judge, therefore,
    acquitted all the accused for the following reasons:-

          (I) The Superintendent of Police should have recorded the
B confession in his own handwriting and Section 15 of the TADA Act
    did not permit him to get it written by someone else on a typewriter
    even if that was done in his presence. Further, Rule 15 of the TADA
    Rules required that in case of a written confession the Superintendent
    of Police should have certified the same in his own handwriting. The
    confessions were wholly typewritten and they were not recorded in
C   accordance with Section 15 of the TADA Act and Rule 15 of the TADA
    Rules and hence were inadmissible.

         (2) There was no evidence to show that the accused possessed
    arms and ammunition and other explosive substances with the
    intention of committing any terrorist or disruptive activity within
D   India and hence the accused were not guilty under section 5 of the
    TADA Act and Section 4 of the Explosive Substances Act, 1908.

         (3) The charge of conspiracy was net established on the basis of
    evidence of the witnesses and confessions of the accused.
E
          (4) The charge under Section 309 IPC was void in view of the
    decision of this Court in P.Rathinam's case.

         (5) There was no evidence to prove the charge of conspiracy
    under Section 120-B IPC read with Section 3(3) of the TADA Act.
F
          (6) The sanction given by the District Collector under Section 7
    of the Explosive Substances Act, 1908 was not a valid sanction and,
    therefore, the accused could not be convicted under Section 4 of the
    Explosive Substances Act, 1908.
G
        On behalf of the appellant-State it was contended that the
  trial court did not correctly appreciate the charge regarding
  conspiracy; that on an erroneous view of the law the trial court
  ommitted from consideration the confessional statements; and that
  the finding regarding the sanction given by the Collector under Section
H 7 of the Explosive Substances Act, 1908 was bad being contrary to the
                   STATEOFT.N. v. SIVARASAN                    247

law and the evidence.                                                A

     Allowing the appeal in part, this Court

      HELD : I. The expression "recorded in writing" in section 15 of
the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA)
has a wider meaning. It would include writing down by one's hand B
and also writing by other means. Unless the context so requires it
would not be proper to give that expression a narrow meaning. In
Section 15 the words 'recorded in writing' are used to indicate a
mode or form of recording the confession. Though the nature of the
provision would, justify strict compliance with each of the conditions
mentioned therein there is no compelling reason to give such a narrow C
interpretation to those worc!s. Though the Superintendent of Police
must himself explain to the person making the confession that he is
not bound to make a confession and that it may be used as evidence
against him if he makes it and though he has himself to question the
person making it to form a reasonable belief that he is making it
voluntarily it was not intended by the Legislature that the D
Superintendent of Police should himself write down the confession
without taking any help of another person or an instrument like a
typewriter. What appears to have been intended by the Legislature is
that the Superintendent of Police should not leave the work of
recording the confession to any of his subordinates and that everything
in connection with the confession should be done in his presence and E
hearing and under his direct supervision and control. Therefore, there
is no justification for interpreting the words "recorded by such police
officer in writing" to mean recorded by such police officer in his own
handwriting. There is no reason why a Superintendent of Police who,
for some reason, is unable to write down the confession, cannot take F
the help of another person for writing the same. Why cannot a
Superintendent of Police, whose handwriting is not good, record the
confession by using a typewriter? Typewriting is also writing. A
typewritten thing is also a writing prepared with the help of a
typewriter. In the instant case the Sessions Judge erred in treating
the confessions as inadmissible on the ground that they were not G
recorded in accordance with the requirement of Section 15 of the
TADA Act. [259 D-H, 260 A,BJ

     State v. S.J Choudhary, [1996) 2 SCC 428, relied on.

     Webster's Comprehensive Dictionary, referred to.                H
    248                    SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A         2. The expression "under his own hand" as used in Rule 15(3)(b)
    of the TADA Rules does not mean in his own handwriting. What is
    inter alia required to be certified by the police officer is that the
    confession was taken in his presence and recorded by him. The words
    "taken in his presence and recorded by him' are significant. Similarly,
    the words of the memorandum that the <:onfession was taken 'in my
B   presence and hearing and recorded by me' are also significant and
    indicative of the expected manner of recording the confession. They
    clearly suggest that the confession should be recorded by the police
    officer in his presence and hearing. The emphasis is on the presence
    and hearing of the police officer and not on the police officer himself
    writing down the confession, the certificate and the memorandum.
C   Thus, what is required by sub-rule (3) is that the written confession
    should not only be countersigned by him but it should also contain
    the required certificate signed by him. The intention of the Rule clearly
    appears to be that all the formalities should be performed by him
    and he should himself certify that he had discharged all the obligations
    before recording the confession. [260 H & 261 A-DJ
D
          3.1. The prosecution must prove that the accused was in conscious
    "possession", "unauthorisedly', in a "notified" area of any of the
    specified arms and ammunition. No further nexus with any terrorist
    or disruptive activity is required to be proved by the prosecution as a
    statutory presumption would arise that the said arm or explosive
E   substance was meant to be used for a terrorist or disruptive act.
                                                                  [265 B,C]

          Sanjay Dutt v. State, [1994) 5 SCC 410, followed.

F        3.2. The TADA Act contains stringent provisions and provides
   heavier punishments. Therefore, its provisions have to be construed
   strictly. The TADA Act does not define the expression "explosive
   substances". The Legislature has not thought if fit to give that
   expression the same meaning as is given under the Explosive Substances
   Act. Otherwise, just as it has in case of arms and ammunition referred
G to the Arms Rules, 1962 it would have referred to the Explosive
   Substances Act if it really wanted the said expression 'explosive
   substances' to have the same meaning as it has under the Explosive
   Substances Act. The expression ·other explosive substances' is found
   to be in the company of 'bombs and dynamites' and, therefore, the
   explosive substance contemplated under Section 5 must be Qf the type
H. of bombs and dynamites. It must be a complete article or device capable
                    STA TE OF T.N. v. SlVARASAN                     249

of exploding. Therefore, neither empty cells nor parts for making a         A
bomb so long as they are not assembled and filled with gun powder
or other explosive substance can be said to be an explosive substance
as contemplated by that Section. 1265 D,E,FI

     4.1. Gellatine sticks which were found from the possession of
the accused would be an explosive substance but the acquittal of the        B
accused is confirmed because the evidence shows that no terrorist or
disruptive activity was ever intended by him to be committed within
India as the evidence disclos•s that they were to be sent to Sri Lanka
and used there. The accused has rebutted the presumption arising
out of his unauthorised possession of explosive substance in a notified
area. [265 F,G)                                                             C

      4.2. The accused were found in possession of explosive substances
as defined by the Explosive Substances Act, 1908. Such articles were
the parts of bombs and grenades. The clandestine manner in which
the accused were making, storing and transporting them is a
circumstance sufficient to create a reasonable suspicion that they were     D
not possessed for a lawful object. Therefore, all the ingredients of the
offence under Section 5 of the Explosive Substances Act, 1908 are
satisfied and the accused are guilty of that offence.· Although the
accused were charged under Section 4 of the Explosive Substances
Act, 1908 and there was no specific charge under Section 5 of that          E
Act, it being a lesser offence, the accused can be ·convicted and
punished under that Section, if the ingredients constituting that offence
are established. [266 A-El

      4.3. Section 7 of the Explosive Substances Act, 1908 does not
require a sanction but only consent for prosecuting a person for an         F
offence under that Act. The object of using the word 'consent' instead
of "sanction" in Section 7 is to have a purely subjective appreciation
of the matter before giving the necessary consent. It is not necessary
for the investigating officer to submit the statement of witnesses to
the Collector for obtaining his consent. [266 F,G)
                                                                            G
      5.1. The charge of conspiracy is not established on the basis of
the evidence of witnesses and confessions of the accused. Consequently,
the circumstance that certain articles like incomplete grenades or
bombs or their parts and vehicles used in transporting them were
recovered from the accused, even if believed, are not sufficient to H
    250                    SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A prove the charge of conspiracy. No other evidence was led by the
    prosecution to prove that the accused intended to commit a terrorist
    act in India or to endanger life or cause serious injury to property in
    India. On the contrary, the evidence discloses that the accused who
    were involved in manufacturing bombs and grenades were doing so
    for their use by LTTE in Sri Lanka. Therefore, the ingredients of
B   Section 3(3) of the TADA Act were not satisfied in this case and Section
    4 of the Explosive Substances Act, 1908 has no application.
                                                            1262-H 263-A,BJ

          5.2. The evidence clearly establishes that when the polic~ tried
    to take the accused (A-1) into custody he had attempted to commit
C   suicide by biting a cyanide capsule. The Constitution Bench of this
    Court in Gian Kaur 's case has overruled the view taken in P.Rathinam 's
    case that section 309 IPC is constitutionally invalid. Therefore, the
    acquittal of accused (A-1) under Section 309 IPC is set aside and he is
    convicted under that Section. 1268 E-GJ

D         Gian Kaur v. State of Punjab, [1996) 2 SCC 648, followed.

         P. Rathinam v. Union of India, [1994) 3 SCC 394, held
    inapplicable,

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
E 819 of 1994.
         From the Judgment and Order dated 10.8.94 of the Principal Sessions
    Judge and Designated Court at Coimbatore in C.C.No.61 of 1992.

F        V.R. Reddy, Additional Solicitor General, K.V. Venkataraman, K.V.
    Viswanathan and V.G. Pragasam for the Appellant.

         U.R. Lalit, M.T. George, P.D. Sharma(NP), Ashok Aggarwal, R.G.
    James and C.S. Ashri for the Respondents.

G         The Judgment of the Court was delivered by

          NANAVATl, J. This appeal arises out of the judgment and order of
    the Principal Sessions Judge aI>d Designated Court, Coimbatore, in C.C.No.
    61of1992. As the learned Judge acquitted the accused, the State has filed
    this appeal under Section 19 of the Terrorist and Disruptive Activities
H   (Prevention) Act, 1987 (herein after referred to as the "TADA Act").
            STATEOFT.N. v. SIVAR.\SAN [NANAVAT!,J.]                  251


       The prosecution case is that Shivarajan alias Raghu (Respondent/ A
Accused No.I) and Vigneswaran alias Vicky (Respondent/Accused No.2)
who were Sri Lankan nationals and members of LTTE came to India
sometime in 1989 without any traveling documents. So also, Guna and
Dixon who were Sri Lankan nationals and members of LTTE had come to
India in the like manner. Since then they were engaged in obtaining
explosive substances, manufacturing bombs and sending them !o LTTE in B
Sri Lanka. In the said cladestine activity they were helped and assisted by
Respondent Nos. 3 to 9 (Accused Nos. 3 to 9) who are Indian nationals.
Tilll the assassination ofRajiv Gandhi on 21.5.91, they could carry on the
said activity without any hinderance. Thereafter it became difficult for
them to do so as the whole of Tamil Nadu was declared as a Notified Area
with effect from 23.6.91, under Section 2(1)(1) of TADA Act and also        c
because the Government of India and the Government of Tamil Nadu
tightened security measures within the State of Tamil Nadu. The police
was also on look out for Sri Lankans who did not possess passport and
visa for staying in India and had also required the house owners to report
to it if such Sri Lankans were found to be occupying their houses. Due to
 such strict measures A-1, A-2 Guna and Dixon found it difficult to obtain D
 accommodation for their residence and for manufacturing bombs and storing
 them and therefore, they went on changing houses after taking them on
rent by making misrepresentations. Since February 1991 A-1 and Guna
 had taken on rent one house bearing Door No. 11/12 A situated in Shivaji
 Colony in Coimbatore. Dixon and others were occupying a different house E
 in Coimbatore. As the LTTE was in desperate need of hand grenades and
 bombs and wanted them to be supplied latest by the end of first week of
 August 1991, A-I to A-5 and A-7 to A-9 and Guna met at the house of A-
 l in Shivaji Colony and decided to manufacture and send them to Sri
 Lanka and also to strike terror in the people by using bombs or other
explosives and thereby causing damage to Indian property or death or F
 injuries to Indian leaders and other persons if they came in their way. All
 the nine accused along with Guna and Dixon continued to manufacture
 different parts of hand grenades and plastic bombs and store them at different
 places. A-I and A-2 were required to change their residence from shivaji
 Colony to a house in Dr. Muthuswamy Colony as the owner of the house G
 objected to their suspicious activities. On 28.7.91, A-1 and A-2 after making
 necessary arrangements for transporting the hand grenades and plastic
 bombs manufactured by them with the help of other accused and which
 were to be filled with explosives at Trichy returned to the house in Dr.
 Muthuswamy Colony. They found police standing near their house. So
 they went to another house where some more articles were kept. There H
    252                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A they came to know that Guna and Dixon had committed suicide as the
    police had surrounded their house.

          In the evening A-1 and A-2 were going on a Kinetic Honda scooter.
  P.W. l Pandurangan, a traffic police constable signalled them to stop as he
  noticed that the scooter was being driven very fast. Instead of stopping the
B scooter, A-1 who was driving it, attempted to dash it against him. P.W.l
  jumped aside and saved himself. After covering some distance A-1 and A-
  2 fell down on the road along with the scooter. P. W. l then went to that
  place and asked A-I to show his licence. A-I challenged him by saying as
  who he was to ask for a licence. A-1 then said "if this police man is done
  away with, this police department will then understand". He also threatened
C P. W. l by stating that if he tried to catch him, beat him or sent him out of
  the country he would destroy the entire Tamil Nadu. P.W.l suspecting
  them to be LTTE terrorists, shouted for help and blew his whistle.
  Thereupon A- I attempted to start the scooter but it did not start. Hearing
  the shouts and the whistle two police constables, Sivagnanam and P.W.2
   Devasayayam came there. The three police constables with the help of
D other persons tried to take both the accused in custody. At that time A- I
  took out a cyanide capsule from his pant pocket and attempted to put it in
   his mouth. P.W.l pushed his hand aside and the capsule fell down on the
   roail. The police constables then took both the accused to Thoodivalur
   police station. There P.W. \ lodged a complaint against them under section
E 353, 307 and309 l.P.C. On the basis of this complaint Inspector Angamuthu,
   P.W.55 started the investigation. On the basis of further information other
   charges under the TADA Act and Explosive Substances Act, 1908 were
   also added. During the investigation various incriminating articles like
   incomplete grenades or bombs or their parts and the vehicles used in
   transporting the same were discovered at the instance of the accused or
F were recovered from their possession.
          On these allegations, A-1 to A-5 and A-7 to A-9 were charged for
   the offences punishable under Section 120-B read. with section 3(3) of the
   TADA Act. A-1, A-3 to A-5 and A-7 to A-9 were also charged for the
G offences punishable under Sections 3(3) and 5 of the TADA Act. They
 · were also charged for commission of the offence under Section 4 of the
   Explosives Substances Act. A-6 was charged under section 5 of the TADA
   Act and Section 4 of the Explosives Substances Act. A-1 and A-2 were
    further charged under Section 307 read with Section 34 l.P.C. A-1 was
    individually charged for the offences punishable under Sections 353 and
H 309 1.P.C.
                  STATEOFT.N. v. SIVARASAN [NANAVATI,J.]                     253




-          In order to prove the conspiracy the prosecution relied upon the
    evidence of P. W.21 Prem Kumar, P. W.38 Kumar, confessional statements
    of A-2 and A-9 and also the evidence of other witnesses who deposed that
    between the first week of July 1991 and 3.8. 1991 they had either seen
                                                                                     A


    some of the accused together or seen them manufacturing, storing and
    transporting parts ofboms and grenades. As the charge against the accused
    regarding conspiracy was specific that said conspiracy was hatched during        B
    that period, in the house bearing Door No. l l/12A of Shivaji Colony, the
    learned trial judge held that it was necessary for the prosecution to prove
    that the conspiracy was hatched as alleged. After appreciating the evidence
    of prosecution witnesses in this behalf the learned trial judge held that the
    said house was vacated by A-1 on 3.7. 91 and that there was no evidence
    to show that during the first week of July 1991. When the said house was         C
    in occupation of A-1 all the accused had met there and conspired as alleged.
    The learned trial judge having found that between 11.7.91and28.7.91
    A-1 and Guna resided in a different house situated in Dr. Munusami Colony
    and that there was no evidence to show that A-I to A-5 and A-7 to A-9 and
    deceased Guna were found together in any place during the period from
    first week of July to 3.8.91 and had agreed to do any illegal act, held that     D
    the charge of conspiracy was not proved.

           Though the prosecution had also relied upon the confessional
    statements of A-2 and A-9 in order to prove the charge of conspiracy the
    learned judge did not take them into consideration as he was of the view
    that they were not recorded in the manner prescribed by Section 15 of the        E
    TADA Act and Rule 15 of the TADA Rules and therefore could not be
    accepted in evidence. In the alternative he held that even if they were
    accepted as evidence they alone could not be made the basis for conviction
    of the accused. To prove possession of bombs, grenades and explosive
    substances by the accused the prosecution had relied upon the evidence of        F
    those witnesses who deposed about their having seen the accused either
    making purchases of raw materials for preparing hand grenades or bombs
    or manufacturing parts of the bombs or transporting such parts and also of
    those witnesses in whose presence such parts and explosive substances
    were recovered. For proving this charge also the prosecution had relied
    upon the two confessional statements of A-2 and A-9. The learned judge           G
    held that the evidence regarding recovery of the articles from various
    accused was not sufficient. Therefore, this charge was also held as not
    proved. In the alternative the learned judge held that even if it was believed
    that such articles were recovered from the possession of A-1 and A-3 to A-
    9 and eventhough articles siezed by the police were explosive substances
    as defined by Section 2 of the Explosive Substances Act, there was no            H
    254                     SUPREMECOURTREPORTS [1996] SUPP. 8 S.C.R.


A evidence to show that they were ;possessed either for the purpose of
  committing terrorist acts or for supporting or abetting terrorist acts or
  with an intention to endanger life or to cause serious injury to any person
  in India by means thereof or to cause serious injury to property in India
                                                                                     -
  and, therefore, they could not be held guilty under Section 5 of the TADA
  Act and Section 4 of the Explosive Substances Act. The learned judge also
B held that the sanction given by the District Collector, to prosecute the
  accused under the Explosive Substances Act was not a valid Section and,
  therefore, also they could not be convicted under Section 4 of the Explosive
  Substances Act. With respect to the charges under Sections 307, 353 and
  309 I.PC. he held that the evidence of P.W.1 Pandurangan, P.W2
  DevasayayamP.W.3 Dhansekaran, P.W.4 Arumugam, P.W. 6 V.Arumugam
C and P.W.7 Singaram was not acceptable as the version given by them was
  "artificial and unbelievable". He did not consider the charge against A-I
  under Section 309 I.P.C. as the same was held void in view of the decision
  of this Court in P. Rathinam and Naghbushan Patnaik v. Union of India
   [1994] 3 SCC 394. The learned Judge, therefore, acquitted all the accused
  of all the charges levelled against them. Aggrieved by the said order of
D acquittal the State has filed this appeal.

           The learned counsel appearing for the appellant-State contended that
    the trial Court did not correctly appreciate the charge regarding conspiracy
    and, therefore,the finding that conspiracy as alleged is not proved stands
E   vitiated. He also contended that on an erroneous view of the law the trial
    court omitted from consideration the confessional statements, Exh.53 and
    Exh.51 of A-2 and A-9. He also submitted that the finding regarding the
    sanction given by the District Collector under Section 7 of the Explosive
    Substances Act is bad being contrary to the law and the evidence. The
    other findings are challenged on the ground that the evidence relating
F   thereto has not been correctly appreciated and the reasons given in support
    thereof are improper and untenable.

           On the other hand the learned counsel appearing for the respondents
    supported the findings on the grounds given by the trial court and submitted
G   that the acquittal of the accused is proper and just and does not call for any
    interference by this Court.

          We will first consider the charge of conspiracy and the evidence led
    to prove it. The prosecution case was that as, after the assassination of
    Rajiv Gandhi on 21.5.91, it became very difficult for A-1, A-2, Guna,
H   Dixon and others who were engaged in manufacturing hand grenades and
                 STATEOFT.N. v. SIVARASAN[NANAVATI,J.]                     255


    bombs for the LTTE and as the LTTE was in dire need of those bombs             A
    latest by the end of the first week of August 1991, the accused met at the
    house of A-1 and A-2 situated in Shivaji Colony in the first week of July
    1991 and hatched a conspiracy by agreeing "to commit illegal acts by
    illegal means, to strike terror in the people by using bombs and other
    explosive substances as was likely to cause death and injuries to Indian
    Leaders and people who might prevent their unlawful activities and also        B
    to manufacture grenades and explosive substances in the notified area of
    Coimbatore."

           Thus, the charge framed against the accused was not only that they
    had conspired to commit terrorist acts but they had also conspired to
    manufacture explosives like grenades and bombs in the notified area. The       C
    learned counsel for the appellant was, therefore, right in his submission
    that the learned Sessions Judge did not properly appreciate what exactly
    was the charge against the accused and failed to consider if the charge that
    they had also conspired to manufacture explosives was proved. He also
    rightly submitted that the charge against the accused was that the accused
    had entered into a criminal conspiracy in the first week of July 1991 in       D
    House No. 11/12-A of Shivaji Colony and the illegal acts referred to in
    the charge were committed in pursuance of that conspiracy between first
    week of July 1991 and 3.8.91 and therefore, the learned Sessions Judge
    was not right in holding that the charge of conspiracy was not proved as
    there was no evidence to establish that between 3.7.91 and 3.8.91 the          E
    accused had met in the said house and conspired to commit the said illegal
    acts. In view of this infirmity in the judgment we have carefully considered
    the evidence keeping in mind both these aspects.

          The evidence of P.W.21 Prem Kumar establishes that A-1, A-2 and
    Guna were in possession of his house in Shivaji Colony in the first week       F
    of July 1991. What he has stated is that his house was taken on rent by A-

-   l and Guna in February 1991 and they vacated it on 3.7.91. But there is
    no evidence except the two confessional statements (Exhs. 51 and 53 ), to
    prove that A-1 to A-5 and A-7 to A-9 had met together in that house any
    time between 1.7.91 and 3.7.91.
                                                                                   G
          It was not the prosecution case that conspiracy was hatched in any
    other manner or at any other place. Even with respect to the circumstances
    relied upon by the prosecution that during that period some of the accused
    were either residing or moving together or were helping each other, in
    order to prove by way of an inference that the accused had conspired as        H
    256                      SUPREME COURT REPORTS (1996] SUPP. 8 S.C.R.


A alleged, it has to be stated that the evidence of P.W.38 Kumar P.W.13,
    P. W.4 l and P.W.45 is neither specific nor sufficient to justify drawing of
    such an inference. They have generally stated that A-3 to A-9 were helping
    A-1, A-2 Guna and Dixon in obtaining raw materials or machines required
    for manufacturing bombs or their parts or they were manufacturing parts
    required for preparing bombs on orders placed by A-l or Guna. In absence
B   of further evidence to show that they had the knowledge or had shared the
    intention with A-1, A-2, Guna and Dixon that all those acts were · 'ing
    done for manufacturing bombs, no inference can be drawn that they were
    also party to the conspiracy.

          The only other evidence led in the case consists of the two confessional
C statements (Exhs. 51 and 53). The confessional statement of A-2 (Exh.53)
  was recorded on 17.8.91 by Superintendent of Police Shri Muthukaruppan,
  P. W.53. As disclosed by his evidence he had informed A-2 that it was not
  necessary for him to give such a statement and in spite of that ifhe gave if,
  it could be used against him at the trial. Even after ascertaining that he
  was not compelled to give it, he had given I0 to 15 minutes time to
D reconsider. As A-2 had shown his willingness again and as he was satisfied
  about the he had decided to record it. He had got it written on a typewriter.
  It was then read over to A-2 and his signatures were taken on each page as
  he had accepted that it was correctly taken down. He had also signed the
  statement and the certificate. The suggestions made to him in his cross-
E examination that A-2 had not willingly given that statement and that his
  signatures were obtained on it by force were denied. Nothing could be
  elicited in his cross-examination which would create any doubt regarding
  credit worthiness of this witness and genuineness and voluntary character
  of the confession. The confessional statement (Exh.51) of A-9 was recorded
  on 3. l 0.91 by P. W.5 l Appadurai. He has also given similar evidence and
F denied the suggestion made to him in his cross-examination that he had
  written down a false confession and obtained signatures of A-9 on it under
  a threat. No good reason has been given by the learned counsel for the
  respondents to disbelieve the evidence of this witness also. The evidence
  of these two witnesses, therefore, establishes that the confessions (Exh. 51
G and 53) were given by A-2 and A-9 voluntarily and were taken down
  correctly.

          The learned Sessions Judge was of the view that Section 15 of the
    TADA Act requires that the Superintendent of Police should record the
    confession either in his own handwriting or on any mechanical device like
H   cassettes, tapes or sound tracks from out of which sounds or images can be
             STATEOFT.N. v. SIVARASAN [NANAVATl,J.]                       257


reproduced and the Section does not permit him to get it written by someone       A
else on a typewriter even ifthat is done in his presence. The learned Judge
was also of the view that Rule I 5 requires that in case of written confession
the Superintendent of Police should, in his own handwriting, certify the
same. He, therefore, held that as both the confessions were wholly
typewritten they cannot be said to have been recorded in accordance with
the requirements of the said provisions. The learned Sessions Judge also          B
held that both the police officers had not exercised their power or discharged
their function under section 15 in the manner contemplated by that provision
as indicated by the fact that in the heading of each of those statements it
is stated that "It is a confessional statement of the accused". According to
the learned Judge that would mean that both the police officers had started
recording the same before satisfying themselves as to whether the accused         C
were willing to give a voluntary confession. We have already set out the
evidence of the two police officers earlier and it clearly transpires therefrom
that they had started recording the confessions not only after satisfying
themselves that they wanted to confes voluntarily but after giving them I 0
to 15 minutes' time for reconsidering their decision. Therefore, the inference
drawn by the learned Sessions Judge that the said two police officers had         D
started recording the confessions without properly satisfying themselves
regarding the willingness of the accused to make confessions is wholly
unjustified. We find that both the officers had, be.fore recording the
confessions complied with the requirement of sub-section (2) of Section
15.
                                                                                  E
      We will now consider whether Section 15 of the TADA Act and
Rule 15 of the TADA Rule require that the confessional statement should
be recorded by the Superintendent of Police in his own handwriting if it is
not recorded on any mechanical device. Section 15 and Rule 15 in so far
as they are relevant for the purpose of this appeal read as under:-
                                                                                  F
              ''Certain confessions made to police officers to be taken into
              consideration.(!) Notwithstanding anything in the Code or
              in the Indian Evidence Act, 1872 (I of 1872), but subject to
              the provisions of this section, a confession made by a person
              before a police officer not lower in rank than a Superintendent     G
              of Police and recorded by such police officer either in writing
              or on any mechanical device like cassettes, tapes or sound
              tracks from out of which sounds or images can be reproduced,
              shall be admissible in the trial of such person or co-accused,
              abettor of conspirator for an offence under this Act or rules
              made thereunder.                                                    H
    258                        SUPREMECOURTREPORTS [1996] SUPP. 8 S.C.R.


A                (2) .................. .

                 Rule 15 reads as under:-

                 "Recording of confession made to police officers".

B
                 (I) ··················

                 (2) .................. .

                 (3) The confession shall, if it is in writing, be-
c                (a) signed by the person who makes the confession; and

                 (b) by the police officer who shall also certify under his own
                 hand that such confession was taken in his presence and
                 recorded by him and that the record contains a full and true
D                account of the confession made by the person and such police
                 officer shall make a memorandum at the end of the confession
                 to the following effect:-

                 (4)
E
                 (5)                                                    "

         A confession made by an accused to a police officer is made
  inadmissible in a criminal trial both by the Indian Evidence Act and the
  Code of Criminal Procedure. But while enacting the Terrorist and
F Disruptive Activities (Prevention) Act which makes special provisions for
  the prevention of, and for coping with, terrorist and disruptive activities
  and for the matters connected therewith or incidental thereto the Legislature
  has thought it fit to make certain confessions made to police officers
  admissible in a trial of such person or co-accused, abettor or conspirator
G for an offence under that Act or Rules made thereunder. The Legislature
  has, however, at the same time, provided enough safeguards to protect the
  interest of the accused. A confession is made admissible only ifit is made
  before a police officer not lower in rank than a Superintendent of Police.
  It is made admissible if it is recorded by such police officer either in
   writing or on any mechanical device like cassettes, tapes or sound tracks
H from out of which sounds or images can be reproduced. Such a confession
             STATEOFT.N. v. SIVARASAN[NANAVATI,J.]                       259


can be used against a co-accused, abettor or conspirator only in those cases     A
where he is charged and tried in the same case together with the accused
making that confession. Before recording a confession the police officer
must explain to the person making it that he is not bound to make a
confession and that, if he does so, it may be used as evidence against him.
A provision is also made that the police officer shall not record any such
confession unless upon questioning the person making it, he has reason to        B
believe that it is being made voluntarily. The confessions (Exhs. 51 and
53) were recorded in writing. As regards compliance with the requirements
of Section 15 the only point in dispute is whether the confessions were
"recorded by such police officec....... in writing." The answer depends upon
the correct interpretation of the words "recorded in writing". As stated
earlier, the learned Sessions Judge has interpreted the word 'writing' to        C
mean in his own handwriting.

      According to Webster Comprehensive Dictionary 'to record' means
to write down or inscribe or register, as for preserving an authentic account,
evidence etc. and 'writing', as a verb, means to trace or inscribe or note
down letters, words, numbers etc. on a surface with a pen, pencil or by          D
some other device including stamping, printing or engraving. Thus the
expression 'record in writing' has a wider meaning. It would include writing
down by one's own hand and als0 writing by other means. Unless the
context so requires it would not be proper to give that expression a narrow
meaning. In Section 15 the words 'recorded in writing' are used to indicate      E
a mode or form of recording the confession. Though the nature of the
provision would justify strict compliance with each of the conditions
mentioned therein we find no compelling reason to give such a narrow
interpretation to those words as has been done by the learned Sessions
Judge. Though Superintendent of Police must himself explain to the person
making the confession that he is not bound to make a confession and that         F
it may be used as evidence against him if he makes it and though he has
himself to question the person making it tcr form a reasonable belief that
he is making it voluntarily we do not think that it was intended by the
Legislature is that the Superintendent of Police should not leave the work
of recording the confession to any of his subordinates and that everything
in connection with the confession should be done in his presence and             G
hearing and under his direct supervision and control. We, therefore, do
not find any justification for interpreting the words 'recorded by such
police officer in writing' to mean recorded by such police officer in his
own handwriting. There is no reason why a Superintendent of Police who,
for some reason, is unable to write down the confession, cannot take help
                                              .
of another person for writing the same. Why cannot a Suprintendent of            H
    260                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A Police, whose handwriting is not good, record the confession by using a
    typewriter? Typewriting is also writing. A typewritten thing is also a
    writing prepared with the help of a typewriter. In the context of Section
    45 of the Evidence Act this Court in State v. S.J Choudhary, [1996] 2
    sec 428, after observing that a typewriter·is a writing machine and typing
    has become more common than the handwriting, has held that typewriting
B   can legitimately be said to be including within the meaning of the word
    'handwriting'. We, therefore, hold that the learned Sessions Judge
    committed an error of law in treating the confessions (Exhs 51 and 53) as
    inadmissible on the ground that they were not recorded in accordance
    with the requirement of Section 15 of the Act.

C        Another ground on which the learned Sessions Judge held the two
  confessions inadmissible is that the concerned police officer did not certify
  the confession 'under his own hand' inasmuch as the certificate was
  typewritten, the memorandum at the end of the confession was also
  typewritten and the police officer had merely put his signatures below
  them and thus, there was non-compliance with the requirement of Rule
D 15. The said Rule inter alia prescribe the manner in which the confession
  made under Section 15 has to be recorded. Sub-rule (3) of the said Rule
  which is quoted in the earlier part of this judgment provides that if the
  confession is in writing it has to be signed by the person who makes it and
  also by the police officer who records the same. It further provides that
  the police officer shall also ·certify under his own hand' that such confession
E was taken in his presence and recorded by him and that th" record contains
  a full and true account of the confession. The police officer is also required
  to make a memorandum at the end of the confession to the following
  effect:

                  "I have explained to (name) that he is not found to make a
F                 confession and that, if he does so, any confession he may
                  make may be µsed as evidence against him and l believe that
                  this confession was voluntarily made. It was taken in my
                  presence and hearing and recorded by me and was read over
                  to the person making it and admitted by him to be correct,
                  and it contains a full and true account of the statement made
G                 by him.

                                                            Sd. Police Officer."

          The learned Sessions ledge has interpreted the exp"ession 'under his
H own hand' to mean written in his own hand. As the confossions were not
            STATEOFT.N. v. SIVARASAN [NANAVATl,J.]                     261


handwritten by the Superintendents themselves the learned sessions Judge A
held that they were not certified as required by Rule 15(3)(b). In our
opinion, the expression 'under his own hand' as used in sub-rule (3)(b) of
Rule I 5 does not mean in his own handwriting. What is inter alia required
to be certified by the police officer is that the confession was taken in his
presence and recorded by him. The words 'taken in his presence and
recorded by him' are significant. Similarly, the words of the memorandum B
that the confession was taken 'in my presence and hearing and recorded
by me' are also significant and indicative of the expected manner of
recording the confession. They clearly suggest that the confession should
 be recorded by the police officer in his presence and hearing. The emphasis
 is on the presence and hearing of the police officer and not on the police
 officer himself writing down the confession, the certificate and the C
 memorandum. Thus, what is required by sub-rule (3) is that the written
 confession should not only be countersigned by him but it should also
 contain the required certificate signed by him. The intention of the Rule
 clearly appears to be that all the formalities should be performed by him
 and he should himself certify that he had discharged all the obligations
 before recording the confession. The learned Sessions Judge was, therefore, D
 wrong inholding that the two confessions were inadmissible in evidence
 as they did not comply with the requirement of Rule 15(3)(b).

      Therefore, we will now consider the evidentiary value and the effect
of those two confessions. Though A-2 and A-9 have denied while
examining under Section 3 I 3 of the Code that they had made such              E
confessions we are inclined to believe P.W.51 and P.W.53 that A-2 and A-
9 did make those confessions and that they were voluntarily made and
correctly taken down. Having gone through the confession (Exh. 53) made
by A-2 we find that what he had stated with respect to the conspiracy is as
under:-
                                                                               F
             "On account of the action ta.ken by the present Tamil Nadu
             Government, bombs could not be sent to Lanka. There was a
             talk that bombs are required for ANAIYIRA VU WAR: Bombs
             have to be sent by the first week of August on any account.
             Aruchamy, Ramakrishnan, Loganathan, Jayapal, Shanmugam G
             and Ravi promised to help for this."

      Apart from the fact that the date on which the said talk took place
and the place are not mentioned, it does not contain a clear admission by
A-2 that he was present at the time of the talk and that he was also a party
to it. Thus, there is no confession by A-2 that in the first week of July      H
    262                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A   1991 in the aforesaid house in the Shivaji Colony he had agreed with A-1,
    A-3 to A-5 and A-7 to A-9 or any one of them to commit the illegal acts
    alleged against them. What A-9 in his confession (Exh.51) has stated is
    that in the first week of July 1991 when he had gone to the house of A-1,
    A-3 to A-4 had also come and at that time A-1, Guna and two others were
    also present. There was a conversation amongst them "that severe war was
B   going on at Cyclone and there are obstructions for sending the bombs
    manufactured here. They (Ratnakrishnan, Aruchamy, raghu, Guna and
    the two unknown persons) were saying: The spares of the bombs can be
    united and explosives filled in at Tanjore sea shore; that the bombs which
    are here should be sent to Lanka within a month if anybody obstructs we
    should not hesitate to kill them; if they could not be sent before the first
C   week of August, damage should be caused to the important cities of India
    and Tamil Nadu in Government offices and Railway Stations with the aid
    of the bombs manufactured here." He has further stated that he overheard
    this conversation from an adjacent room, that he left the house after some
    time and that he completely stopped going to their house thereafter. Thus,
    A-9 has not inculpated himself as one of the conspirators. Obviously, on
D   the basis of these two confessional statements neither A-2 nor A-9 nor any
    of the co-accused can be convicted for the offence of conspiracy to commit
    a terrorist act or any act preparatory to a terrorist act. So also, none of
    them can be convicted for conspiring to manufacture explosives like
    grenades and bombs as the prosecution has failed to establish any meeting
E   and any agreement between them for that purpose at the: time and place
    mentioned in the charge.

          O:ice the conspiracy as alleged is held not proved on \he basis of the
    evidence of those witnesses who had deposed that they had seen the accused
    meeting each other and moving together or doing certain acts together and
F   on the basis of the two confessions, the circumstances that certain articles
    were found from them, even if believed, cannot be regarded as sufficient
    to prove that charge. Therefore, the lea.-ned Sessions Judge was right in
    holding that the charge under Section 120-B !PC read with Section 3(3)
    of the TADA Act has not been proved by the prosecution.
G
          In view of the aforesaid discussion of the evidenc<: and the finding
    the acquittal of the accused under section 3(3) of the TADA Act and Section
    4 of the Explosive Substances Act also will have to be confirmed. No
    other evidence was led by the prosecution to prove that the accused intended
    to commit a terrorist act in India or to endanger life or cause serious
H   injury to property in India. On the contrary, the evidence discloses that the
            STATEOFT.N. v. SIVARASAN [NANAVATI,J.]                     263


accused who were involved in manufacturing bombs and grenades were A
doing so for their use by LTTE in Sri Lanka. Section 3(3) of the TADA
Act makes that person punishable who 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. as
no terrorist act as contemplated by Section 3(3) of the TADA Act was ever
intended by any of the accused, obviously, the ingredients of Section 3(3) B
cannot be said to have been satisfied in this case. Section 4 of the Explosive
Substances Act can have no application as the prosecution has failed to
establish that any of the accused had the intention to endager life or cause.
serious injury to property in Inda.

        What is next to be considered is whether any of the accused can be C
 held guilty under Section 5 of the TADA Act and Section 5 of the Explosive
 Substances Act which is a lesser offence as compared to that under Section
 4 of that Act. Possession of bombs, dynamites or other explosive substances
 unauthorisedly in a notified area is made punishable under Section 5 of
 the TADA Act. Under Section 5 of the Explosive Substances Act also
 making or possessing any explosive substance, under certain circumstances, D
.is made punishable. The learned Sessions Judge has recorded a clear finding
 that the prosecution has failed to establish that any incriminating article
 was found from the possession of A-3 and A-4. We have carefully consi<!ered
 the evidence in this behalf and in our opinion, the prosecution has
 completely failed to establish that House bearing Door No.359 from which E
 a large quantity of incriminating articles were found was in possession of
 A-3. The shop from which plastic grenades without gun powder and
 Gellatine sticks were found and with which A-4 was sought to be connected
 have not been proved to be in exclusive possession of A-4. The evidence
 discloses that one Damodarsamy was the tenant of the said shop and that
 Sathimurthi, Chandrakanth and other Tamilians were working in it and A- F
 4 was occasionally going there to '!ncet Damodarsamy.

       As regards possession of incriminating articles from other accused,
except A-2 against whom there was no such charge, the learned Sessions
Judge has not disbelieved the evidence led to prove that those incriminating   G
articles were either discovered at their instance or were recovered from
their houses or premises under their control. He however, did not record
any clear finding in this behalf but held that even if their possession is
held proved they cannot be said to have committed any offence under
sections 3(3) and 5 of the TADA Act or Section 4 of the Explosive
Substances Act. With respect to A-1 the learned Judge held that even though    H
    264                     SUPREME COURT REPORTS [l 996] SUPP. 8 S.C.R.


A some of the incriminating articles were discovered on the basis of the
  information given by him it cannot be said that he was in possession of the
  same. We have carefully gone through the evidence of P.W.8 Papathy,
  P. W.39 Balasubramaniam, P. W.55 Inspector Amgamuthu and Mahazars
  (Exhs, P-21, P-24) and find no good reason to discard! their evidence.
  Even A-1 in his statement under Section 313 has admitted that the
B incriminating articles found from the house situated at Dr. Muthuswamy
  Colony were in his possession. A-2 has also admitted in his statement
  under Section 313 that those articles were in possession of A-1, himself
  and deceased Guna: It is, therefore, difficult to appreciate how the learned
  trial judge could record a finding that those articles cannot be said to have
  been in possession of A-1. The evidence of P.W.39 Balasubramaniam and
C P.W.42 Abdul Azim in whose presence the incriminating articles were
  discovered or recovered from A-5, A-6, A-7 and A-8 together with the
  evidence of P.W.55 Inspector Angarnuthu and the relevant Mahazars (Exhs.
  P-23, P-30, P-33 and P-35) clearly establish that the artic:les noted in the
  Mahazars were recovered attheir instance. On the basis of the said evidence
  it can be said that the prosecution has proved that A-5, A-6, A-7 and A-8
D were found in possessison of those articles. So also, the evidence ofP.W.39
  Balasubramaniarn, P.W.56 Inspector Nizarnuddin and the Mahazar (Exh.
  P-26) clearly establish that certain molding machines, dyes, Gellatine sticks
  and detonators were found from the possession of A-9. It was also admitted
  by A-gin his statement under Section 3I3 of the Code that those articles
E were found from his custody though his explanation with respect to the
   possession of Gellatine sticks and detonators was that they were given to
   him for safe custody under a threat by deceased Guna. In his confession
   (Exh. P-51) also he admitted that the said articles were seized by the
   police officers in presence of a witness from his workshop and that he had
   produced the same. Thus, the possession of the articles which are held by
F the learned Sessions Judge to be explosive substances as defined by the
   Explosive Substances Act, by A-I and A-5 to A-9 is established by the
   prosecution beyond any reasonable doubt.

          On this finding, the question that arises is whether the charge against
G them under Section 5 of the TADA Act can be said to have been proved.
    The learned Sessions Judge held that as the said articles were not possessed
    by any of those accused for commission of a terrorist act they cannot be
    said to have committed that offence. According to the learned Sessions
    Judge mere unauthorised possession of Explosive substances in a notified
    area is not sufficient to convict the accused under Section 5 of the TADA
H   Act and it must further be proved by the prosecution that the accused
                                                            •

               STATEOFT.N. v. SIVARASAN[NANAVAT!,J.]                   265


   possessed the same for commission of a terrorist act. This view taken by A
  the learned Sessions Judge is clearly wrong. It is now held by this Court in
  Sanjay Dutt v. State, [1994] 5 SCC 410 that in the prosecution for an
  offence punishable under Section 5 of the TADA Act, the prosecution is
  required to prove that the accused is in conscious 'possession',
   'unauthorisedly', in 'a notified area' of any arms and ammunition specified
   in Columns 2 and 3 of Category l or Category llI (a) of Schedule l to the B
  Arms Rules, 1962 or bombs, dynamite or other explosive substances and
   no further nexus with any terrorist or disruptive activity is required to be
  proved by the prosecution as a statutory presumption would arise that the
  said arm or explosive substance was meant to be used for a terrorist or
  disruptive act. Though the learned Judge acquitted the accused for the
  offence under Section 5 of the TADA Act, on an erroneous view of law, C
  their acquittal of the offence under that Section will have to be confirmed
  as none of them except A-9 can be said to be in possession of explosive
  substances as contemplated by that Section. The articles which were found
  from the other accused were either empty cells ur the parts required for
  making a hand grenade or bomb. None of them was capable of exploding.
  TADA Act contains stringent provisions and provides heavier punishments. D
  Therefore, its provisions have to be construed strictly. TADA Act does not
  define the expression 'explosive substances'. The Legislature has not
  thought it fit to give that expression the same meaning as is given under
  the Explosive Substances Act. Otherwise, just as it has in case of arms and
  ammunition referred to the Arms Rules, 1962 it would have referred to
  the Explosive Substances Act if it really wanted the said expression E
  'explosive substances' to have the same meaning as it has under the
  Explosive Substances Act. The expression 'other explosive substances' is
  found to be in the company of 'bombs and dynamiies' and, therefore, the
  explosive substance contemplated under Section 5 must be of the type of
  bombs and dynamites. It must be a complete article or device capable of
  exploding. Therefore, neither empty cells nor parts for making a bomb so F
  long as they are not assembled and filled with gun powder or other
  explosive substance can be said to be an explosive substance as contemplated
  by that Section. Gellatine sticks which were found from the possession of
  A-9 would be an explosive substance but the acquittal of A-9 will have to
  be confirmed because the evidence shows that no terrorist or disruptive G
  activity was ever intended by him to be committed within India as the
  evidence discloses that they were to be sent to Cyclone and used there. A-
  9 can be said to have rebutted the presumption arising out of his unathorised
( possession of explosive substance in a notified area.

        It appears that as no separate charge was framed for the offence     H
    266                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C,R.


A under Section 5 of the Explosive Substances Act and as the learned Sessions
  Judge was of the view that the sanction given by the District Collector
  under Section 7 to prosecute the accused for the offences under that Act
  was not legal and valid he did not examine whether the accused can be
  said to have committed the lesser offence under Section 5 of that Act. On
  re-appreciation of the evidence we have come to the conclusion that A-1
B and A-5 to A-9 were found in possession of articles which have been held
  by the learned Sessions Judge to be explosive substances as defined by the
  Explosive Substances Act. Even though there was no specific charge under
  Section 5, it being a lesser offence, the accused can be convicted and
  punished under that Section, if the ingredients constituting that offence
  are held established. Section 5 renders any person who makes or knowingly
C has in his possession or under his control any explosive substance, under
  such circumstances has to give rise to a reasonable suspicion that he is not
  making it or does not have it in his possession or under his control for a
  lawful object, punishable unless he can show that he made it or had it in
  his possession or under his control for a lawful object. Possession of such
  articles by A· I and A-5 to A-9 is held proved by us. The nature of those
D articles and the evidence of the witnesses who have been examined to
  prove that those articles were prepared for manufacturing bombs and also
  the evidence of scientific expert P. W, 48 Srinivasan clearly establish that
  they were the parts o( bombs and grenades. The clandestine manner in
  which they were making, storing and transporting them is a circumstance
  sufficient to create a reasonable suspicion that they were not possessed for
E a lawful object. In fact, none of those accused has made any attempt to
  prove that they had those articles with them for a lawful object. Therefore,
  all the ingredients of the offence under Section 5 are satisfied in this case
  and A-1 and A-5 to A-9 are held guilty for commission of that offence.

          With respect to the finding regarding sanction we are of the opinion
F that the learned Sessions Judge was not right in treating it as not legal and
  valid. Section 7 does not require a sanction but only consent for prosecuting
  a person for an offence under the Explosive Substances Act. The object of
  using the word "consent' Instead of "sanction" in Section 7 is to have a
  purely subjective appreciation of the matter before giving the necessary
G consent. To prove the consent the prosecution had examined P.W.52
  Balachandran who was then acting as the P.A. of the District Collector. He
  has deposed about the requisition sent by the investigating officer and the
  reports and other documents sent along with it and consideration of the
  same by the District Collector before giving his consent. In his cross-
  examination he stated that he had not noticed in the relevant file statements
H of witnesses. Relying upon this answer given by the witness the learned
             STATEOFT.N.v. SIVARASAN [NANAVATI,J.]                    267

Sessions Judge held that in absence of such statements the District Collector A
cannot be said to have applied his mind properly to the facts of the case
before granting the sanction. From the evidence of the witness and the
copy of the proceedings of the Collector it appears that the Inspector of
Police had sent his report regarding the evidence collected by him together
with a copy of the FIR, the reports of the Forensic Department and other
connected record. Thus, the Mahazars under which the "explosive B
substances" recovered and seized by the police from different accused
were placed before the Collector and on consideration of all that material
the Collector had given his consent. We do not think that for obtaining
consent of the Collector for prosecuting the accused for the offence
punishable under the Explosive Substances Act it was nec~ssary for the
investigating officer to submit the statements of witnesses also, who had C
deposed about the movements of the accused and their activity of
manufacturing bombs and grenades. We, therefore, hold that the consent
given by the Collector was quite legal and valid.

       A-I and A-2 were also tried for the offence punishable under Section
 307 read with Section 34 !PC. In order to establish this charge the D
 prosecution had examined P.W.l Pandurangan who had deposed about the
 manner in which A-1 was found driving his Kinetic scooter in a rash and
 negligent manner, his signalling him to stop the vehicle and A-1 trying to
 dash the scooter with him. The prosecution had also led evidence of P. W.2
Devasayayam, P.W.4 Arumugham, P.W.6 V. Arumugham and P.W.7 E
Singaram to corroborate the evidence of P.W.1 Pandurangan. The learned
Sessions Judge disbelieved the evidence of these witnesses on the ground
that the version given by them was artificial and unbelievable for the
 reasons that ( 1) the accused had not sustained any injury (2) no damage
was noticed on the scooter (3) the FIR did not refer to the presence of the
three independent witnesses and (4) though Singaram and Radhakrishnan F
were cited as eye-witnesses the prosecution examined only Singaram. P.W.2
Devasayayam had helped P.W.l Pandurangan in taking A-1 and A-2 in
custody and had accompanied P.W.1 to the police station. His statement
was also recorded soon after the FIR was prepared. In the FIR the name of
Singaram was mentioned as an eye-witness. The learned Sessions Judge
has disbelieved the evidence of Singaram also on the ground that he did G
not depose about the presence of the other three witnesses. We find that
the learned Sessions Judge has not properly read the evidence of P.W.7.
He has referred to the presence of P.W.6. In his evidence he has stated that
he was in the shop of P.W.6 along with Radhakrishnan. No other reason
has been given by the learn•d Sessions Judge for disbelieving the evidence H
    268                     SUPREME COURT REPORTS [I 996] SUPP. 8 S.C.R.


A of those witnesses. It is quite likely that A-I having lost the balance after
  making an attempt to dash the scooter against P.W.I Pandurangan could
  not keep the scooter standing while stopping it. That appears to be the
  reason why the scooter and A-1 and A-2 fell down on the road. The scooter
  had stopped running and that is borne out by the evidence of those witnesses
  and that explains why neither A-I nor A-2 had received any injury nor
B was there any scratch· noticed on the scooter. Thus, none of the grounds
  given by the learned Sessions Judge for holding the version of the witnesses
  as artificial and unbelievable can be regarded as a good ground. The said
  finding is partly based upon the misreading of the evidence and partly
  upon the reasons which are not proper. We, therefore, hold that the charge
  against A-1 that he had tried to dash the scooter against P. W. l Pandurangan
C is established beyond reasonable doubt. However, in absence of any
  evidence or circumstances it is not possible to infer that the intention of A-
   l was to attempt to murder P.W.l Pandurangan. Therefore, we maintain
  his acquittal under section 307 but set aside his acquittal under Section
  353 and convict him for that offence.

D         A-2 had neither done nor uttered anything on the basis of which it       •
    can be said that he had shared the intention of committing the offence
    punishable under Section 307 with A-1. His acquittal, therefore, under
    Section 307 read with Section 34 has to be maintained.

E       The evidence of P. W. l Pandurangan and P.W.2 Devasayayam clearly
  establishes that when they tried to take A-1 into custody he had attempted
  to commit suicide by bitting a cyanide capsule. A-1 in his statement made
  under Section 313 of the Code has also admitted that he had tried to bite a
  cyanide capsule when he was caught by the police though his version
  regarding the other part of the incident is different. The evidence of P.W.l
F and P.W.2 thus receives corroboration from the said statement of A-1. The
  prosecution, therefore, can be said to have established beyond any
  reasonable doubt that A-1 had attempted to commit suicide. The learned
  Sessions Judge has acquitted A-1 as he considered the said charge as void
  in view of the decision of this Court in P. Rathinam v. Union of India,
G [1994] 3 sec 394 wherein it was held that Section 309 is unconstitutional.
  The Constitution Bench of this Court in a subsequent decision in Gian
  Kaur v. State of Punjab and other connected matters [1996] 2 SCC 648
   has overruled the view taken in the case of P. Rathinarn (supra) that section
   309 IPC is constitutionally invalid. Therefore, on the facts which are not
   only proved but are also admitted by A-1 the acquittal of A-1 under Section
H 309 IPC has to be set aside and he will have to be convicted under that
                 STATEOFT.N. v. SIVARASAN [NANAVATI,J.]                     269


    Section.                                                                        A

          Accordingly this appeal is partly allowed. Acquittal of all the accused
    for the offence punishable under Section 120-8 !PC read with Section
    3(3), TADA Act, for the offences punishable under Sections 3(3) and
    Section 5 of TADA Act and Section 4 of the Explosive Substances Act and
    that of A-l and A-2 under Section 307 read with Section 34 !PC is               B
    confirmed. The acquittal of A-1 for the offence punishable under Section
    353 !PC is set aside and he is convicted for commission of that offence
    and is sentenced to suffer rigorous imprisonment for a term of one year.
    He is also convicted under Section 309 !PC and is sentenced to suffer
    simple imprisonment for a term of six months. He is also convicted for the
    offence punishable under Section 5 of the Explosive Substances Act and is       C
    sentenced to suffer rigorous imprisonment for two years. A-5 to A-9 are
    also convicted for the offence punishable under Section 5 of the Explosive
    Substances Act and they are ordered to suffer rigorous imprisonment for a
    period ofone year. All the sentences imposed upon A-I are directed to run
    concurrently.
                                                                                    D
    v.s.s.                                             Appeal allowed in part.




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