Holding

The conviction under Section 3(2)(ii) of the TADA Act is set aside because the prosecution failed to prove the essential elements of a terrorist act, including intent and ULFA affiliation.

Summary

The appellants, Pulin Das @ Panna Koch and Mahendra Saikia @ Dilip Saikia, were arrested after a police raid on 8 December 1993 during which arms were seized and they were alleged to be members of the banned ULFA outfit. They were convicted by a designated TADA court under Section 3(2)(ii) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and sentenced to five years' rigorous imprisonment and a fine. On appeal, the Supreme Court examined whether the prosecution had proved the essential ingredients of a terrorist act under Section 3(1), namely the requisite intent, use of weapons and a link to a banned organization. The Court found that none of the prosecution witnesses, including police officers and the house owners, testified to any ULFA affiliation or terrorist intent of the accused, and the procedural safeguards of Section 20A were not satisfied. Consequently, the conviction under Section 3(2)(ii) was held unsustainable and set aside, leading to the appellants' release.

Issues considered

The prosecution established the requisite intent and connection to a banned organization required under Section 3(1) of TADA.
Whether the designated court erred in convicting the accused on the basis of mere reference to ULFA without substantive evidence.
Compliance with the procedural requirements of Section 20A of TADA regarding police approval and sanction for prosecution.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 19, s. 20A, s. 3(1), s. 3(2)(ii), s. 5

Subjects

TerrorismTADASection 3IntentULFADesignated CourtEvidenceAppeal

Judgment

[2008] 3 S.C.R. 257

PULIN DAS @ PANNA KOCH A
v.
STATE OF ASSAM
(Criminal Appeal No: 706 of 2007)
FEBRUARY 22, 2008
B
[P.P. NAOLEKAR AND P. SATHASIVAM, JJ.]

Terrorist and Disruptive Activities (Prevention) Act, 1987:
ss. 3 (1) and 2 (ii) - Prosecution under - Police raid -
Apprehension of accused - Recovery of arms and C
ammunitions - Conviction by designated court - On appeal,
held: Conviction not sustainable - Prosecution witnesses
including the police personnel not mentioning about the
banned organization, link of the accused therewith and unlawful
activities of the accused. D
s. 3 (1) - Applicability of - Circumstances discussed.
Appellants-accused were prosecuted u/ss. 3 and 5
of Terrorist and Disruptive Activities (Prevention) Act,
1987. According to prosecution, police party raided the E
house of PW-5. There was exchange of firing from both
the sides. Thereafter both the appellants were
apprehended. Arms and ammunitions were also
.. recovered from their possession. FIR was lodged on that
basis u/ss. 3/4/5 of the Act. Charges were framed. F
Designated court convicted both the accused u/s 3 (1)
and u/s 3 (2) (ii). However, acquitted them u/s 5 of the Act.
Hence the present appeals.
Allowing the appeals, the Court
G
HELD: 1.1 It is clear from Section 3(1) of Terrorist and
Disruptive Activities (Prevention) Act, 1987 that whoever
with intent (i) to overawe the Government as by law
e~tablished; or (ii) to strike terror in the people or any

257 H
258 SUPREME COURT REPORTS [2008] 3 S.C.R.
'-.

A section of the people; or (iii) to alienate any section of the
people; or (iv) to adversely affect the harmony amongst
different sections of the people, does any act or things
by using (a) bombs or dynamite, or (b) other explosive
substances, or (c) inflammable substances, or (d) firearms,
8 or (e) other lethal weapons, or (f) poisons or noxious
gases or other chemicals, or (g) any other substances
(whether biological or otherwise) of a hazardous nature
in such a manner as to cause or as is likely to cause (i)
death, or (ii) injuries to any person or persons, (iii) loss of
c or damage to or destruction of !Ji.?perty, or (iv) disruption
of any supplies or services essential to the life of the
community, or (v) detains any person and threatens to
kill or injure such person in order to compel the
Government or any other person to do or abstain from
doing any act, commits a 'terrorist act' punishable under
0
the said Section. [Para 8] [267-D, E, F, G]
Kartar Singh vs. State of Punjab 1994 (3) SCC 569 -
followed.
Hitendra Vishnu Thakur and Ors. vs. State of
E Maharashtra and Ors. 1994 (4) SCC 602; State through
Superintendent of Police, CBI/SIT vs. Nalini and Ors. 1999
(5) sec 253 - relied on.
Usmanbhai Dawoodbhai Memon and Ors. vs. State of
F Gujarat 1988 (2) SCC 271; Niranjan Singh Karam Singh
Punjabi, Advocate vs. Jitendra Bhimraj Bijjaya and Ors., 1990
(4) sec 76 - referred to.
1.2 An activity which is sought to be punished under
Section 3(1) of TADA has to be such which cannot be
G classified as a mere law and order problem or disturbance
of public order or disturbance of even tempo of the life of
the community of any specified locality but is of the nature
which cannot be tackled as an ordinary criminal activity
under the ordinary penal law by the normal law
H enforcement agencies because the intended extent and
PULIN DAS @ PANNA KOCH v. STATE OF ASSAM 259

reach of the criminal activity of the 'terrorist' is such which A
travels beyond the gravity of the mere disturbance of
public order even of a 'virulent nature' and may at times
transcend the frontiers of the locality and may include
such anti-national activities which throw a challenge to
the very integrity and sovereignty of the country in its B
democratic polity. The Designated Court must not act
mechanically and record conviction without examining
whether or not from the evidence led by the prosecution
an offence under Section 3 (1) is made out. [Para 9)
[267-H; 268-A, B, CJ c
1.3 In the facts of the case and in light of strict
compliance to be followed to attract Section 3(1), the
conviction under Section 3(1) and punishment under sub-
section 2(ii) of Section 3 of the TADA Act cannot be
sustained. The prosecution has miserably failed to D
establish the charge levelled against both the accused.
The Designated Court has committed an error in accepting
the prosecution case based on a mere reference of the
terrorist organization ULFA by P.Ws. 5 and 6. In fact, both
of them have stated that it was the police who disclosed E
that they recovered some arms from two ULFA men and it
is not their own assertion. Neither P.Ws.5 and 6 nor the
remaining seven police personnel including Dy.
Superintendent of Police, who were examined, whisper a
word about the banned organization - ULFA and the F
alleged unlawful activities of the accused persons in
terms of Section 3(1) of the Act. These material aspects
have not been adverted to by the Designated Court. ·
[Para 23) [272-F, G, H; 273-A]
1.4 In a case of this nature, particularly, in the light of G
the stringent provisions as provided in sub-section (1) of
Section 3 as well as Section 20A which mandates that no
information about the commission of an offence under
this Act shall be recorded by the police without prior
approval of the D.S.P, and no court shall take cognizance H
260 SUPREME COURT REPORTS [2008] 3 S.C.R.
.._.

A of any offence under this Act without previous sanction
of the Inspector General of Police or Commissioner of
· Police, P.W.9 D.S.P. ought to have explained all the details
about t:he ULFA organization its activities and the alleged
connection of the accused persons. It is the bounden duty
B of the prosecution to examine highest police officer of the
district, namely, Superintendent of Police or equivalent ~
officer about the above-mentioned relevant materials.
[Para 22] [272-8, C, D]

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
c No. 706 of 2007.
From the Judgment and final order dated 19/4/2007 of
the Court of the Judge, Designated Court, Assam, Guwahati in
T.A.D.A. Session Case No. 1/1996.
D WITH ..,..
Criminal Appeal No. 836 of 2007.
Nitin Sangra, V.D. Khanna and Satyajeet Saha for the
Appellant in Criminal Appeal No. 706 of 2007.
E
Vijay Hansaria, Aseem Mehrotra, Shefali Jain and Abhijat
P. Medh for the Appellant in Criminal Appeal No. 836 of 2007.
Avijit Roy and Ranjan Mozumdar (for Mis. Corporate Law
Group) for the Respondent. ..._
F The Judgment of the Court was delivered by
P. SATHASIVAM, J. 1) These appeals, under Section 19
of the Terrorist and Disruptive Activities (Prevention) Act, 1987
(hereinafter referred to as "the TADA Act") are directed against
G the common judgment dated 19.04.2007 of the Designated
Judge at Assam, Gauhati in TADA Sessions Case No. 1of1996
whereby the Designated Judge convicted Pulin Das @ Panna

H
Koch - appellant in Criminal Appeal No. 706 of 2007 and
Mahendra Saikia @ Dilip Saikia - appellant in Criminal Appeal
No. 836 of 2007 for offences under Section 3(2)(ii) of the TADA
'
PULIN DAS @ PAN NA KOCH ,v. STATE OF ASSAM 261
_,. [P. SATHASIVAM, J.]

Act and sentenced them to undergo rigorous imprisonment for A
five years and to pay a fine of Rs.500/-, in default further R.I. for
another six months.
·"
2) Brief'facts, in a nutshell, are as follows:
On the night of 08.12.1993, on secret information, the B
police party under the leadership of S.P. Sonitpur and S.D.P.O.,
-f Bishwanath Chariali raided the house of Uday Chetry. It was
alleged that the extremist fired upon the police party and the
police party also fired in self-defence and as such there was
exchange of fire from both sides and thereafter Pulin Das @ c
Panna Koch- appellant in Crl.A.No. 706 of 2007 and Mahendra
Saikia @ Dilip Saikia - appellant in Crl.A. No.836 of 2007 were
apprehended and arms and ammunitions were recovered from
their possession. On the basis of the above incident, an F.l.R.
No.187/1993 was recorded and the police registered a case
D
...,,: under Sections 3/4/5 of the TADAA<;:t. On 17.12.1995, Charge
Sheet No.101 of 1995 in FIR No.187/1993 was filed against
both the accused. On 30.08.2006, stc1tements of the appellants-
accused were recorded under Section 313 of the Criminal
Procedure Code. The prosecution examined nine witnesses in
support of its case and exhibited the seizure list (Ex.1), the FIR E
(Ex.2), the sketch map(Ex.3), the expert report (Ex.4),
prosecution sanction(Ex.5) and the charge sheet (Ex.6) and also
exhibited the seized arms and ammunitions (Mat. Ex.1-4). The
f, Designated Court, Assam, Gauhati convicted •the appellants
herein under Section 3(2)(ii) of TADA and sentenced each of F
them to undergo rigorous imprisonment for five years and to
pay a fine of Rs.500/-, in default further rigorous imprisonment
for another six months. However, the Designated Court acquitted
the accused persons under Section 5 of the TADA Act as there
was no evidence available for possession of unauthorized arms G
and ammunition. Being aggrieved by the said judgment, the
appellants preferred separate appeals before this Court.
3) Heard Mr. Nitin Sangra, learned counsel, for the
appellant in Criminal Appeal No.706 of 2007 and Mr. Vijay
H
262 SUPREME COURT REPORTS [2008] 3 S.C.R.

A Hansaria, learned senior counsel, for the appellant in Criminal
Appeal No.836 of 2007 and Mr. Avijit Roy, learned counsel,
appearing for the State of Assam.

4) Since both the appellants/accused were convicted only
under Section 3(2)(ii) of the TADA Act, it is useful to refer to the
B said provision.
"3. Punishment for terrorist acts.- (1) Whoever with
intent to overawe the Government as by law established
or to strike terror in the people or any section of the people
c or to alienate any section of the people or to adversely
affect the harmony amongst different sections of the people
does any act or thing by using bombs, dynamite or other
explosive substances or inflammable substances or
firearms or other lethal weapons or poisons or noxious
gases or other chemicals or by any other substances
D
(whether biological or otherwise) of a hazardous nature in
such a manner as to cause, or as is likely to cause, death
of, or injuries to, any person or persons or loss of, or
damage to, or destruction of, property or disruption of any
supplies or services essential to the life of the community,
E or detains any person and threatens to kill or injure such
person in order to compel the Government or any other
person to do or abstain from doing any act, commits a
terrorist act.

F (2) Whoever commits a terrorist act, shall,-

( i) if such act has resulted in the death of any person, be
punishable with death or imprisonment for life and shall
also be liable to fine;
( ii) in any other case, be punishable with imprisonment
G
for a term which shall not be less than five years but which
may extend to imprisonment for life and shall also be liable
to fine."
5) In Kartar Singh vs. State of Punjab, (1994) 3 SCC
H 569, the legality and the efficaciousness of Sections 3 and 4
PULIN DAS @ PANNA KOCH v. STATE OF ASSAM 263
->
[P. SATHASIVAM, J.]

were assailed on the following grounds, namely,- A
(1) These two sections cover the acts which constitute
offences under ordinary laws like the Indian Penal
; Code, Arms Act and Explosive Substances Act;

(2) There is no guiding principle laid down when the B
executive can proceed under the ordinary laws or
-J

l (3)
under this impugned Act of 1987; and
This Act and Sections 3 and 4 thereof should be
struck down on the principle laid down in State of
W.B. vs, Anwar Ali Sarkar, AIR 1952 SC 75 and c
followed in many other cases including A.R. Antulay
vs. Union of India and Ors., (1988) 2 SCC 764.
While upholding the validity of Sections 3 and 4, the
Constitution Bench laid down that the Act tends to be very harsh
D
.....,.· and drastic containing the stringent provisions and provides
minimum punishments and to some other offences enhanced
" penalties also. The provisions prescribing special procedures
aiming at speedy disposal of cases, departing from the
procedures prescribed under the ordinary procedural law are
evidently for the reasons that the prevalent ordinary procedural E
.,
, law was found to be inadequate and not sufficiently effective to
deal with the offenders indulging in terrorist and disruptive
activities, secondly that the incensed offences are ~rising out

-
';I.. of the activities of the terrorists and disruptionists which disrupt
or are intended to disrupt even the sovereignty and territorial F
integrity of India or which may bring about or support any claim
for the cession of any part of India or the secession of any part
of India from the Union, and which create terror and a sense of
insecurity in the minds of the people. Further the Legislature
being aware of the aggravated nature of the offences have G
brought this drastic change in the procedure under this law so
that the object of the legislation may not be defeated and nullified.
6) In Hitendra Vishnu Thakur and Others vs. State of
Maharashtra and Others, (1994) 4 SCC 602, while
H
i-,
264 SUPREME COURT REPORTS [2008) 3 S.C.R.

A considering Section 3(1) and (2), two-Judge Bench of this Court
basing reliance on Kartar Singh case (supra), Usmanbhai
Dawoodbhai Memon & Ors. vs. State of Gujarat, (1988) 2
SCC 271 and Niranjan Singh Karam Singh Punjabi,
Advocate vs. Jitendra Bhimraj Bijjaya & Ors., (1990) 4 SCC
B 76 held thus:

"11 .......... Thus, unless the Act complained of falls strictly
~·
within the letter and spirit of Section 3(1) of TADA and is
committed with the intention as envisaged by that section
by means of the weapons etc. as are enumerated therein
c with the motive as postulated thereby, an accused cannot
be tried or convicted for an offence under Section 3(1) of .
TADA. When the extent and reach of the crime committed
with the intention as envisaged by Section 3(1 ), transcends
the local barriers and the effect of the criminal act can be
D felt in other States or areas or has the potential of that
result being felt there, the provisions of Section 3(1) would ~

certainly be attracted. Likewise, if it is only as a
consequence of the criminal act that fear, terror or/anq
panic is caused but the intention of committing the
E particular crime cannot be said to be the one strictly
envisaged by Section 3(1), it would be impermissible to
try or convict and punish an accused under TADA. The .
commission of the crime with the intention to achieve the
result as envisaged by the section and not merely where
the consequence of the crime committed by the accused ,.:..
F
create that result, would attract the provisions of Section
3(1) of TADA. Thus, if for example a person goes on a
-
shooting spree and kills a number of persons, it is bound
to create terror and panic in the locality but if it was not
committed with the requisite intention as contemplated
G
by the section, the offence would not attract Section 3(1)
of TADA. On the other hand, if a crime was committed
with the intention to cause terror or panic or to alienate a
section of the people or to disturb the harmony etc. it
would be punishable under TADA, even if no one is killed
•••
H

-
_;,
PULIN DAS @ PANNA KOCH v. STATE OF ASSAM 265
[P. SATHASIVAM, J.]

and there has been only some person who has been injured A
or some damage etc. has been caused to the property,
the provisions of Section 3(1) of TADA would be squarely
attracted. Where the crime is committed with a view to ·
overawe the Government as by law established or is
intended to alienate any section of the people or adversely B
affect the harmony amongst different sections of the people
and is committed in the manner specified in Section 3(1)
of TADA, no difficulty would arise to hold that such an
offence falls within the ambit and scope of the said
provision ....... c
12. Of late, we have come across some cases where the
Designated Courts have charge-sheeted and/or convicted
an accused person under TADA even though there is not
even an iota of evidence from which it could be inferred,
even prima facie , let alone conclusively, that the crime D
was committed with the intention as contemplated by the
provisions of TADA, merely on the statement of the
investigating agency to the effect that the consequence of
the criminal act resulted in causing panic or terror in the
society or in a section thereof. Such orders result in the E
misuse of TADA. Parliament, through Section 20-A of
TADA has clearly manifested its intention to treat the
,. offences under TADA seriously inasmuch as under Section
20-A(1), notwithstanding anything contained in the Code
of Criminal Procedure, no information about the F
commission of an offence under TADA shall even be
recorded without the prior approval of the District
Superintendent of Police and under Section 20-A(2), no
court shall take cognisance of any offence under TADA
without the previous sanction of the authorities prescribed
G
therein. Section 20-A was thus introduced in the Act with
a view to prevent the abuse of the provisions of TADA.
13. We would, therefore, at this stage like to administer a
word of caution to the Designated Courts regarding

....
invoking the provisions of TADA merely because the H
266 SUPREME COURT REPORTS [2008] 3 S.C.R.

A investigating officer at some stage of the investigation
chooses to add an offence under same (sic some)
provisions of TADA against an accused person, more
often than not while opposing grant of bail, anticipatory or
otherwise. The Designated Courts should always consider
B carefully the material available on the record and apply
their mind to see whether the provisions of TADA are
even prima facie attracted.
15. Thus, the true ambit and scope of Section 3(1) is that
no conviction under Section 3(1) of TADA can be recorded
c unless the evidence led by the prosecution establishes
that the offence was committed with the intention as
envisaged by Section 3(1) by means of the weapons etc.
as enumerated in the section and was committed with the
motive as postulated by the said section. Even at the cost
D of repetition, we may say that where it is only the
consequence of the criminal act of an accused that terror,
fear or panic is caused, but the crime was not committed
with the intention as envisaged by Section 3(1) to achieve
the objective as envisaged by the section, an accused
E should not be convicted for an offence under Section 3(1)
of TADA. To bring home a charge under Section 3(1) of
the Act, the terror or panic etc. must be actually intended
with a view to achieve the result as envisaged by the said
section and not be merely an incidental fall out or a
F consequence of the criminal activity. Every crime, being a
revolt against the society, involves some violent activity
which results in some degree of panic or creates some
fear or terror in the people or a section thereof, but unless
the! panic, fear or terror was intended and was sought to
achieve either of the objectives as envisaged in Section
G
3(1 ), the offence would not fall stricto sensu under TADA.
Therefore, as was observed in Kartar Singh case by the
Constitution Bench : (SCC p. 759, para 451)
"Section 3 operates when a person not only intends
H to overawe the Government or create terror in people
PULIN DAS @ PANNA KOCH v. STATE OF ASSAM 267
.,,-.
[P. SATHASIVAM, J.]

etc. but he uses the arms and ammunition which A
results in death or is likely to cause death and
damage to property etc. In other words, a person
becomes a terrorist or is guilty of terrorist activity
when intention, action and consequence all the three
ingredients are found to exist." B
7) In State through Superintendent of Police, CBI/SIT
vs. Nalini and Others, (1999) 5 SCC 253, three-Judge Bench
of this Court held thus:
544. "Under Section 3 of TADA in order there is a terrorist c
act three essential conditions must be present and these
are contained in sub-section (1) of Section 3 -(1) criminal
activity must be committed with the requisite intention or
motive, (2) weapons must have been used, and (3)
consequence must have ensued."
D
8) In the light of the language used and interpreted by this
Court in various decisions, it is clear from Section 3(1) that
whoever with intent (1) to overawe the Government as by law
established; or (it) to strike terror in the people or any section of
the people; or (iit) to alienate any section of the people; or (iv) E
to adversely affect the harmony amongst different sections of
the people, does any act or things by using (a) bombs or
dynamite, or (b) other explosive substances, or (c) inflammable
.. )£
substances, or (d) firearms, or (e) other lethal weapons, or (f)
poisons or noxious gases or other chemicals, or (g) any other F
substances (whether biological or otherwise) of a hazardous
nature in such a manner as to cause or as is likely to cause·(t)
death, or (it) injuries to any person or persons, (iii) loss of or
damage to or destruction of property, or (iv) disruption of any
supplies or services essential to the life of the community, or (v)
G
detains any person and threatens to kill or injure such person in
order to compel the Government or any other person to do or
abstain from doing any act, commits a 'terrorist act' punishable
under the said Section.
9) In view of the same, an activity which is sought to be H
268 SUPREME COURT REPORTS [2008] 3 S.C.R.

A punished under Section 3(1) of TADA has to be such which
cannot be classified as a mere law and order problem or
~isturbance of public order or disturbance of even tempo of the
life of the community of any specified locality but is of the nature
which cannot be tackled as an ordinary criminal activity under
8 the ordinary penal law by the normal law enforcement agencies
because the intended extent and reach of the criminal activity
of the 'terrorist' is such which travels beyond the gravity of the
mere disturbance of public order even of a 'virulent nature' and
may at times transcend the frontiers of the locality and may
c include such anti-national activities which throw a challenge to
the very integrity and sovereignty of the country in its democratic
polity. The Designated Court must not act mechanically and
record conviction without examining whether or not from the
evidence led by the prosecution an offence under Section 3 (1)
D is made out.
10) Though the appellants/accused were charged under
Section 5 for possession of arms and ammunitions along with
Section 3(1) and (2), since the Designated Court itself acquitted
them in respect of offence under Section 5, in the absence of
E appeal by the State there is no need to consider the same.
11) Now, 1-:t us consider whether prosecution has
established the charge under Section 3(2) (ii) of the TADA Act.
Before going into the oral evidence examined on the side of the
prosecution in support of their claim, since learned counsel
F appearing for the respondent/State insisted us to see the
contents of charge-sheet (Annexure 3), we verified the same.
The .written ejahar received from the complainant has been
treated as FIR. The following materials available under clause
7 of the charge-sheet read thus:-
G
"The fact of the case is that on 8.12.93 on secret ...
information, it is known that some ULFA outfit members
have taken shelter in the house of Uday Chetry situated at
Christian Pura under Dhekiajuli P.S. Accordingly, the said
house was gheroed by the outfit members. Thereafter the
H
~-
PULIN DAS @ PANNA KOCH v. STATE OF ASSAM 269
[P. SATHASIVAM, J.]

outfit members (1) Pulin Das@ Panna Koch, (2) Mohendra A
Saikia @ Dilip Saikia were arrested. From their
possession, one revolver, one 303 rifle, one stand gun
and some cartridges were recovered. Be it mentioned
while they were nabbed, they opened fire upon police for
which there were exchange of fire from both sides. 8
Accordingly, a case under s'ections 3, 4 and 5 of TADA
-~
Act was registered and started investigation."

The charge-sheet proceeds that the accused are ULFA
outfit members. In order to prove the charge against the accused ·
persons, the prosecution has examined as many as nine c
witnesses.

12) P.W.1 -Abdul Rahman, a Constable, who proceeded
along with the other members of the police party to Christianbasti
has not stated anything about the accused particularly their
D
y activities. He merely stated that "police arrested two inmates of
that house and seized some arms and ammunitions". In the
cross-examination, he admitted that he was away from the
house and did not see who made the firing and he did not know
whether any gun was fired or not. He also admitted that he did
not know whether any arms and ammunitions or any other articles E
were seized from the accused persons.

13) Nandaraj Sharma, one of the police personnel, who
visited the house of P.W. 5 was examined as P.W.2. He mainly
)L
referred about possession of arms and ammunitions in the F
residence where the accused were apprehended. In the cross-
examination, he stated that 6/7 empty cartridges were seized
from the place of occurrence. He further deposed that there were
five or six persons inside the house where the accused persons
were arrested and there were also women in that house.
G
According to him, he did not know who fired from inside the
house. He also did not whisper a word about the character and
activities of the accused.

14) Another police personnel by name Phuleswar Konwer
was examined as P.W.3. Though he furnished more details H
270 SUPREME COURT REPORTS [2008] 3 S.C.R.
'>

A about the occurrence particularly gun shot from the house, over-
powering by the police personnel, entering the house,
apprehending the two accused and seizing arms and
ammunitions and also identified both the accused in the court
when he was examined, he also did not say anything about either
B banned organization (ULFA) or the accused and their activities.
On the other hand, he fairly admitted that he did not know whether
the arrested accused persons belonged to any banned ~

organization. In other words, even the prime witness of
prosecution did not whisper anything about the banned
c organization (ULFA) their connection and unlawful activities.
15) Next witness one Phuleswar Das who is also one of
the police personnel was examined as P.W.4. Though he
mentioned that he heard some firing at the place of occurrence,
he did not say anything about the accused and their activities. •
D
16) Shri Uday Chetry, resident of the house in question ""
was examined as P.W.5. According to him, on 08.12.1993, after
attending a kirtan party, he returned home at 10 p.m. His wife
told him that two guests have come and they are sleeping after
taking food. He also returned to bed after food. The following
E statement made by him before Court is relevant and the same
is reproduced hereunder:-
"At about 12.30 A.M. midnight, I heard the sound of firing
in the house. Out of fear we did not go out. Thereafter
~
F police called us. Police showed us some arms and
disclosed that they recovered it from two ULFA men." ""
Except the above statement, he did not say anything about
the accused persons and their activities.
17) P.W.6, Om Chetry, who is none else than the brother of
G
P.W.5. deposed that he lives with his brother Uday Chetry, and
is residing in the same house. Like P.W.5, he also deposed
that at mid-night, he heard the sound of firing, woke up and both ~
of tht:im were called by the police. He also deposed that from
police we came to know that both the guests are members of
H
"'°4.
PULIN DAS @ PANNA KOCH v. STATE OF ASSAM 271
[P. SATHASIVAM, J.]

ULFA. A
18) As rightly pointed out by learned counsel appearing
for the appellants/accused though the prosecution has claimed
that P.W.5 and P.W.6 were important witnesses, their evidence
clearly show that they did not know about the activities of the
accused persons particularly whether they are members of B
-¥'
ULFA. Both of them have stated that from the police only they
came to know that both are members of ULFA. It is clear that
they heard the above information about the accused persons
from the police. In such situation and particularly in the light of
the charge against the accused, it is but proper on the part of c
the prosecution to put-forth reliable and acceptable evidence/
material to show that the accused were members of ULFAwhich
is a banned organization. Apart from the above witnesses, the
prosecution has examined two more witnesses in support of
their case. D
19) One Durga Mohan Brahma, Inspector of Police, has
been examined as P.W.7. His entire evidence is available from
pages 39-41 of the paper-book. We scanned the same.
Nowhere he mentioned anything about the activities of the
accused and ULFA. His evidence is also not helpful to the E
prosecution.
f~
20) The next witness examined on the side of the
prosecution is P.W.8, Bhadra Kanta Buragobain. He has nothing
~
to do with the charge framed since according to him, he F
examined arms and ammunitions on 15.12.1995 though seized
on 08.12.1993. We have already referred to the fact that the
Designated Court itself acquitted the accused persons from the
charge under Section 5 of the Act.
21) The last witness examined on the side of the G
prosecution was P.W.9, namely, Jogesh Barman. He was, at
the relevant time, working as D.S.P. H.Q. at Tezpur. According
,If to him, he received an order from S.P. Sonitpur for completion
of the investigation of the case. He further deposed that after
going through the materials from the CD, he submitted charge- H
272 SUPREME COURT REPORTS [2008] 3 S.C.R.

A sheet a9ainst both the accused persons. Though P.W.9 is a
D.S.P. Senior Officer of the District, he also did not whisper
about ULFA, the connection of the accused persons with the
said organization and their activities etc.
22) In a case of this nature, particularly, in the light of the
8 stringent provisions as provided in sub-section (1) of Section 3
as well as Section 20A which manda.tes that no information
about the commission of an offence under this Act shall be
recorded by the police without prior approval of the D.S.P, and

-
no court shall take cognizance of any offence under this Act
c without previous sanction of the Inspector General of Police or
Commissioner of Police, we are of the view that P.W.9 D.S.P.
ought to have explained all the details about the ULFA
organization its activities and the alleged connection of the
accused persons. It is the bounden duty of the prosecution to ..
D examine highest police officer of the district, namely,
Superintendent of Police or equivalent officer about the above- ...
mentioned relevant materials. We have already highlighted the
relevant ingredients and conditions to be fulfilled before initiating
prosecution under Section 3(1) of the TADA Act. Though most
E of the prosecution witnesses adverted to seizure of arms and
ammunitions and the accused were charged for an offence
under Section 5 which speaks about possession of unauthorized ·"
arms etc. in specified areas, the Designated Court acquitted
them on the said charge and admittedly the State has not
..!._
F preferred any appeal. •...
23) In view of the above discussion and in light of strict
compliance to be followed to attract Section 3(1), the conviction
under Section 3(1) and punishment under sub-section 2(ii) of
Section 3 of the TADAAct cannot be sustained. We are satisfied
G that the prosecution has miserably failed to establish the charge
levelled against both the accused. The Designated Court has
committed an error in accepting the prosecution case based
on a mere reference of ULFA by P.Ws. 5 and 6. In fact, both of ~ ,
them have stated that it was the police who disclosed that they
H recovered some arms from two ULFA men and it is not their
PULIN DAS @ PANNA KOCH v. STATE OF ASSAM 273
[P. SATHASIVAM, J.]
own assertion. Neither P.Ws.5 and 6 nor the remaining seven A
police personnel including Dy. Superintendent of Police, who
were examined, whisper a word about the banned organization
- ULFA and the alleged unlawful activities of the accused
persons in terms of Section 3(1) of the Act. These material
aspects have not been adverted to by the Designated Court. B
24) For the reasons stated above, both the appeals
succeed and are hereby allowed. The conviction of the
appellants under Section 3(1 )(2)(ii) of the TADA Act with
sentence and fine thereunder is set aside. The appellants are
directed to be released forthwith, if not required in any other C
offence.
K.K.T. Appeals allowed.