IN THE COURT OF JUDGE DESIGNATED COURT ,

TADA Sessions case No. 75/2001 U/S 3 (2) (ii) of TADA (P) Act.

Present : Shri Alokeswar Bhattacharyya Judge, Designated Court, Assam, Guwahati

State of Assam Vs 1. Sri Rejim Ali 2. Sri Rafiul Hussain 3. Sri Kanak Saikia ………Accused persons.

Date of hearing : 10.03.2008, 14.07.2008, 16.08.2008, 19.09.2008, 19.09.2008, 30.12.2008, 02.02.2009, 01.04.2009, 07.05.2009, 07.07.2009, 25.11.2009, 03.03.2010, 26.03.2010, 13.12.2011, 22.02.2012, 19.03.2012, 07.06.2012, 18.09.2012,18.12.2014, 01.10.2013, 27.12.2013, 25.03.2015, 21.04.2015.

Date of Argument : 26.05.2015. Date of Judgment : 30.05.2015.

Advocates for defence : Sri Nekibur Zaman.

Advocate for prosecution : Sri D. Kotoki, Public Prosecutor. 2

JUDGMENT

1. Sri Nikunja Singh, Sub-Inspector of Police and the then Officer-in- Charge of Dergaon Police Station vide an ejahar dated 11.12.90 states before the Dergaon Police station that based on information, A.B. Constable 25 Md. Rafiul Hussain was brought for interrogation and during interrogation it was revealed that he had sold 5 (five) grenades to one young man about one year ago and he was introduced with the aforesaid young man by one RTS Constable Lokeswar Bora. During interrogation Rafiul Hussain also disclosed that about a month ago he took Rs. 1000/- (Rupees one thousand) from a brother of the owner of the Nava Udit Yuba Sangha, Bokakhat to give some ammunitions and grenades to him. But as he could not arrange he returned back the money to him. Also Rafiul Hussain disclosed during interrogation that RTS Constable Lokeswar Bora gave him (Rafiul Hussain) 20 rounds of .303 ammunitions to sell and he kept these ammunitions with him for some days but as he did not get purchaser he returned these ammunitions to Constable Lokeswar Bora. Thus the occasion of filing of the ejahar. 2. The Dergaon police on the basis of the aforesaid ejahar registered a case and took up the investigation and at the conclusion of the investigation laid the charge sheet U/S 3 (3) of TADA (P) Act. 3. On the appearance of accused persons and on consideration of the documents as referred to U/S 173 Cr.P.C. this Court was pleased to frame charges U/S 3 (2) (ii) of TADA (P) Act against the accused persons named above along with the accused Hem Prasad Bora, the case against whom lateron was abated due to his death. The charge so framed was read over and explained to the accused persons to which they pleaded not guilty. During trial prosecution side after examining as many as 22 P.Ws closed their side. Statement of the accused persons were recorded. I heard the arguments of the case from both the parties. 4. Now the point for determination in this case will be as to whether the material particulars surfaced in the testimonies of the P.Ws would warrant the conviction of the accused persons named above under the offences charged of or not ? 3

5. DECISION AND REASONS THEREON :

Here in this case the charge U/S 3 (2) (ii) of TADA (P) Act is framed against the accused persons. Accused persons had also faced trial thereunder and the prosecution had examined as many as 22 witnesses in order to bring home the said charges. The aforesaid sections of TADA Act is reproduced here in below. 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 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 fire-arms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or otherwise) of a hazardous nature 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, 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. (2) Whoever commits a terrorist act, shall,- (ii) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to fine. 6. A bare perusal of the aforesaid sections would show that the same provides for the punishment for the commission of a terrorist act in any other case. Again the defination of terrorist act has been provided under Sub-Section (1) of Section 3 of the TADA (P) Act, which is narrated here in above. 7. So, now we have to ascertain as to whether the ingredients of aforesaid sections of law had surfaced in the testimonies of P.Ws or not. To address the aforesaid question, perusal of entire evidences on record is necessary. Let us have a look at the evidences on record. 4

8. P.W.1 Sri Mridul Ahmed during trial and in his examination in chief states that on 12.12.90 while he was working as the Attached Officer in the Titabar Police Station in the district of Jorhat, the I/O of the case Mr. N. Sinha, SI of Police took the search of the house of Bhumidhar Bora, the then Armourer of the 3 rd A.P. Bn., Titabar. The I/O recovered one live cartridge of 9 mm pistol from the Gre- coat which was kept inside of a almirah. The same was seized in his presence and he put signature in the seizure list. Ext. 1 is the seizure list wherein Ext. 1(1) is his signature. During cross examination the P.W.1 deposed that independent and non official persons were not present at the time of seizure and the seized articles were neither sealed nor packeted at the place of occurrence. 9. P.W.2 Sri Tulumoni Dutta during trial and in his examination in chief states that in the year 1989 he was residing in the rented house of uncle of Upen Das. At that time the extremist out fit ULFA was not banned and its members had the acquaintance with Upen Das. He could not identify all those members. At that time Hemo Prasad Bora was as Armed Havildar of 11 th A.P. Bn. and during that period Upen Das asked him to hand over an amount of Rs. 2000/- to Hemo Prasad Bora. Thereafter one day Hemo Prasad Bora asked him to hand over a packet containing cartridge to Upen Das and accordingly he handed over the said packet to Upen Das. Upen Das was a member of banned out fit ULFA, who subsequently surrendered before the police. He does not know about the activities of the accused persons nor he can say about the activities of the organization with which the accused persons were allegedly entangled. The Executive Magistrate of recorded his statement U/S 164 Cr.P.C. Ext. 2 is the said statement wherein Ext. 2(1), 2(2) and 2(3) are his signatures. During cross examination the P.W.2 stated that he does not know the names of the accused persons excepting Hem Prasad Bora. Also he does not know about the alleged allegation leveled against the accused persons. He (P.W.2) admitted during cross examination that P.W.3 asked him to hand over Rs. 2000/- to Hem Prasad Bora but for what purpose he does not know. He did not open the packet handed over to him by Hem Prasad Bora. It was wrapped by piece of paper and he did not open the said packet therefore he could not presume its weight and he deposed before the Executive Magistrate on being directed by the Investigating Agency and the said statement was not read over to him. 5

10. P.W.3 Sri Upen Das during trial and in his examination in chief states that he was residing in the same house with Tulumani Dutta in the year 1989. Today he can not recall as to the contents of the statement made before the Executive Magistrate by him in the year 1993. Ext. 3 is the said statement and Ext. 3(1) and 3(2) are his signatures thereon. He is suffering from diabetes and therefore he lost memory. So today he can not recall as to what he stated before the Executive Magistrate. But it was true that he stated before the Executive Magistrate. During cross examination the P.W.3 deposed that he could not recollect as to whether he stated before the Executive Magistrate vide Ext. 3 on being directed by the police or not. At later point of time the P.W.3 admitted that he deposed before the Executive Magistrate on being directed by the police. He did not have personal knowledge as to the incident. The Ext. 3 was not read over to him and he does not know as to the contents of Ext. 3. 11. P.W.4 Sri Mridul Goswami during trial and in his examination in chief states that he know Sri Mridul Bora, in whose house in the year 1990 he took tuition. During that period he met Mr. Upen Das and Ramen Kalita. At that time Upen Das and Ramen Kalita were associated with the banned out fit ULFA and also know Mr. Kanak Saikia. But he does not know about his activities whether he was connected with any banned out fit or not. On 4.3.93 the police took him to the Addl. , Golaghat and he put signature in the papers. Ext. 4 is the said paper wherein Ext. 4(1), 4(2) and 4(3) are his signatures. The contents of the same was not known. During cross examination the P.W.4 states that he does not know about the activities of Kanak Saikia. 12. P.W.5 Sri Rakibuddin Ali during trial and in his examination in chief states that on 20.3.91 he took a motor cycle in his zimma and accordingly he put his signature in the zimmanama. Ext. 5 is the said zimmanama wherein Ext. 5(1) is his signature. On that day the Investigating Officer of the case, seized some documents of the vehicle vide Ext. 6 and obtained his signature under Ext. 6(1) therein. 13. P.W.6 Sri Dharmeswar Gogoi during trial and in his examination in chief states that on 28.1.91 while he was working as the O/C of Titabar P.S. in the Jorhat district, then Commandant of 3rd A.P. Bn., Titabar informed him over telephone that some ammunitions were recovered from the water of the pond situated at the A.P. Bn. campus. Getting the said telephonic information he rushed to the battalion campus and seized the aforesaid ammunitions on being produced by 6

Mr. M. Ali, the then battalion official. Before he arrived at the battalion campus he reduced the telephonic information into writing in the G.D. After recovery of the said ammunitions he obtained an ejahar from Mr. M. Ali and registered a case thereon which is Titabar P.S. Case No. 20/91. In connection with the said case he took search of the houses of Bhumidhar Bora, Armourer Const. Ratneswar Dutta, Armourer Havildar Kanteswar Chetia and Const. Purak Das but found nothing incriminating articles from their houses. Thereafter the said Bhumidhar Bora was arrested and forwarded to the court in connection with the aforesaid case. On 29.1.91 he got further information as to the recovery of ammunitions from another pond of the said battalion campus. Getting the said information he rushed to the battalion campus and also seized some ammunitions. Mr. M. Ali the battalion official lodged again an ejahar whereon he registered another case being No. Titabar P.S. Case No. 23/91. Again on 15.3.91 the Magazine In-Charge of the 3 rd A.P. Bn. Mr. Dhaneswar Dutta lodged an ejahar alleging the missing of ammunitions from the Magazine of the A.P. Bn. He registered another case thereon being No. Titabar P.S. Case No. 46/91 U/S 409 IPC. Thereafter he handed over the C.D. of the case to his successor in the event of his transfer. 14. P.W.7 Sri Debaranjan Sarmah during trial and in his examination in chief states that on 3.3.91 he was working at Dergaon P.S. as the Attached Officer therein. On that day the then O/C of Dergaon P.S. Mr. Nikunja Sinha seized one seizure list vide the seizure list Ext. 7 and obtained his signature therein under Ext. 7(1). The aforesaid seizure list was in connection with the Dergaon P.S. Case No. 331/91 whereby he seized one Yamaha motor cycle. Today he did not find the aforesaid seizure list and the Yamaha motor cycle in question. 15. P.W.8 Sri Kishore Singh Rai during trial and in his examination in chief states that on 27.5.1998 he was at 11th A.P. Bn. serving as Armourer. On that day the Commandant of 11th A.P. Bn. entrusted him to examine the ammunitions in connection with Dergaon P.S. Case No. 331/90 U/S 3/4 of TADA (P) Act. After receiving the article he examined the same and found as follows : Opinion – 1. Factory made 2. Live Ext. 8 is his report. Ext. 8(1) is his signature and Ext. 9 is forwarding report of the concerned authority and Ext. 9(1) is the signature of the then Commandant Abdul Kuddus of 11th A.P. Bn. which is known to him. 7

16. P.W.9 Sri Bolin Saikia during trial and in his examination in chief states that on 27.3.91 he was serving as Constable at 3rd A.P. Bn. at Titabar. On that day R.N. Bora, I/O of this case seized one scooter bearing No. AXH-75 (Narmada Prince 150) and its documents on being produced by Smt. Kusham Bora , W/O Bhumidhar Bora of 3rd A.P. Bn., Titabar in his presence. He has no knowledge about the incident. He has also forgotten whether police took his signature in connection with the seizure of scooter and its documents. Ext. 10 is the said document and Ext. 10(1) is his signature. 17. P.W.10 Sri Tirtho Lochan Adhikary during trial and in his examination in chief states that in the year 1988 he was serving at Recruit Training School, Dergaon. One day he heard that one Rafiul Hussain was apprehended by Dergaon police. He has no knowledge about the incident. 18. P.W.11 Sri Nikunja Singha during trial and in his examination in chief states that on 11.12.90 he was serving as O/C at Dergaon Police Station. On that day he received secret information that Rafiul Hussain, Armourer of RTS had closed nexus with ULFA organization. So he interrogated him and on being interrogated he told that he sold five numbers of grenades to some persons but he did not mention the name of the said persons. Rafiul also told him that Constable Lakheswar Bora introduced him the said persons who purchased the grenades from him. On the basis of said information he lodged the FIR at Dergaon P.S. He registered a case being Dergaon P.S. Case No. 331/90. Ext. 11 is the FIR, Ext. 11(1) is his signature and Ext. 11(2) is his signature with note. Before registering the case he informed the matter to Supdt. of Police, Golaghat. After receiving due approval he registered the case. He took the charge of investigation. During investigation he arrested accused Rafiul Hussain. He recorded the statement of witnesses. He visited the Magazine house of RTS, Dergaon. He seized the driving license of Md. Rafiul Hussain in connection with the case vide Ext. 6. During investigation it was revealed that the motor cycle of Rafiul Hussain was used for carrying arms and ammunitions. Ext. 6(2) is his signature. He also seized one certificate of registration of scooter No. NLH 6100 which was standing in the name of Rafiul Hussain along with the scooter bearing No. NLH 6100 on being produced by Rekibuddin Ali of Jorhat Police Reserve vide Ext. 5, Ext. 5(2) is his signature. 8

He seized one certificate of registration of Yamaha RX 100 motor cycle bearing registration No. AMS-6390 standing in the name of one Dulu Baruah, driving license No. 10504/Private/Now/1987 of Dulu Baruah vide Ext. 12, Ext. 12(1) is his signature. During investigation of the case, physical verification was conducted and a report was prepared. He seized the true copy of physical verification report of RTS on being produced by UB SI Afsar Ali Ahmed, true copy of the report addressed to IGP, Assam, Guwahati dated 21.12.90 regarding shortage of TOT BDR ammunitions of RTS, Dergaon. As per report there were shortage of arms and ammunitions in the RTS Magazine house vide Ext. 13, Ext. 13(1) is his signature. He also seized the register of arms and ammunitions on being produced by Afser Ali Ahmed and prepared seizure list i.e. (i) Page No. 219 of arms and ammunitions register where 1913 round of .38 bore revolver ammunitions were shown short by the then Commandant of RTS, Dergaon, (ii) Page No. 19 of RTS arms and ammunitions register where 3238 rounds of .22 ammunitions were shown short during physical verification, (iii) Page No. 235 of RTS arms and ammunitions register where 3260 rounds were shown short during physical verification made by the then Commandant of RTS, Dergaon containing pages from 1 to 293 vide Ext. 14 (seizure list). Ext. 14(1) is his signature. After seizure he handed over the items of Ext. 14 to the authority. He also seized one seizure list of Yamaha motor cycle being No. AMS- 6397 on being produced by S.I. D.R. Sarma of Dergaon P.S. vide Ext. 7, Ext. 7(2) is his signature. He also seized one pacca bandha stock register of arms and ammunitions of BTC, Dergaon commencing from 1.8.89 containing from 1 to 888 pages (Vol-II) on being produced by AB S.I. Boloram Bora of BTC. Ext. 15 is the seizure list, Ext. 15(1) is his signature. He also handed over the register from it was seized. In connection with the case he searched the house of accused Bhumidhar Bora after observing all formalities. During search he recovered one 9 mm ammunitions KF 63 and seized vide Ext. 1, Ext. 1(2) is his signature. He also took the signature of accused Bhumidhar Bora. Ext. 1(3) is the signature of accused Bhimidhar Bora. Thereafter due to his transfer he handed over the C.D. to his successor. 9

During cross examination the P.W.11 admitted that Rafiul Hussain was the Armourer and Khargeswar Bora was the In-charge of the Magazine House. He did not make enquiry who was the custodian of the keys of the magazine house. Lakheswar Bora identified one person to whom the accused alleged to have sold the ammunitions was not made accused in this case and his name was also not disclosed. He (P.W.11) informed the superior officer and superior officer instruscted him to lodge the FIR but to that effect he did not make any G.D.Entry. 19. P.W.12 Sri Cheniram Bora during trial and in his examination in chief states that at the time of incident he was the Compounder of the Hospital of A.P.T.C., Dergaon. Some persons of A.P.T.C. during that period were known since they used to go to the hospital for collection of medicines. But he has no knowledge about the incident of this case. 20. P.W.13 Sri Dilip Hazarika during trial and in his examination in chief states that before several years back while he was at his residence he heard that a theft was committed in respect of arms and ammunitions in the magazine house, Dergaon. But he has no knowledge about the said incident. 21. P.W.14 Sri Brajenjit Singha during trial and in his examination in chief states that on 4.5.98 he was serving as S.D.P.O., Bokakhat. Before that he received the case diary of instant case to complete the remaining part of investigation. He has gone through the case diary and started investigation. He recorded the statement of arrested accused Hem Prasad Bora. He found that investigation of this case was almost completed. In connection with this case former I/O seized one 9 mm ammunition. He sent the seized ammunition to 11th A.P. Bn. for examination by expert armourer and his opinion and during his tenure he received the expert opinion. He also made prayer to the Supdt of Police, Golaghat for obtaining prosecution sanction along with detailed report. Accordingly the S.P. moved the D.G.P., Assam for according prosecution sanction. He also recorded the statement of few witnesses under section 161 Cr.P.C. namely Tupiram Das @ Ramen Kalita , Jiten Gogoi, Mridul Baruah, Pradip Gogoi, Mumul Gogoi, Retd. A.B. S.I. Sahdullah Seikh, Inspector Asfar Ali Ahmed and Pinku Bora as instructed by CID (H.Q.). Thereafter he handed over the case diary to Supdt of Police, Golaghat as on 2.8.01 as he received his transfer order from to another place. 22. P.W.15 Sri Pradip Kr. Bhagawati during trial and in his examination in chief states that on 3.3.91 he was practicing at Golaghat Bar Association. On that day while he was at his residence police seized one Yamaha motor cycle in 10 connection with this case and took his signature in the seizure list. Ext. 12 is the said seizure list and Ext. 12 (2) is his signature thereon. During cross examination the P.W.15 deposed that he had no knowledge from whose possession and whrerfrom the Yamaha motor cycle was seized. He had got no personal knowledge about the seizure. 23. P.W.16 Sri Prafulla Konwar during trial and in his examination in chief states that on 24.1.91 he was working as O/C of Sonari P.S. On the same day at about 11 A.M. the then Executive Magistrate S.K. Gupta and Major C.P. Ramachandan under 104 Regiment came to the police station and told him that they wanted to catch one ULFA extremist and as such on that police force for the same. Thereafter he along with S.I. S.K. Singh, Constable 1501 Habibur Rahman and army personnel proceed towards Dungripar part II in the house of Rahim Uddhin Choudhury and reached there at about 12 noon at night. They searched the house of Rahim Uddhin Choudhury and found one suspected ULFA militant Rejim Ali and apprehended him and brought him to the Sonari P.S. Thereafter army took him in their possession for interrogation. On 25.1.91 the said suspected ULFA was handed over to them by the army personnel at about 8-40 P.M. As per the W.T. message sent by S.P. , Silchar and after examining the procedure U/S 41 Cr.P.C. they arrested accused Rejim Ali and sent him to D.M., Cachar on 30.1.91. He recorded the statement of the suspected ULFA Rejim Ali under section 161 Cr.P.C. and from his statement he found that he was not the member of banned ULFA organization and denied the allegation leveled against him. It is also stated in his statement that he took shelter in the house of his brother-in-law out of fear of ULFA extremist. Thereafter he made a note on the C.D. and sent the C.D. to the Dergaon P.S. Thereafter he did nothing in the name of investigation in connection with this case. During cross examination the P.W.16 states that after recording statement of accused Rejim Ali it was found that he nowhere involved and he was a member of ULFA organization. He (P.W.16) did not make any enquiry whether any case was pending in his name. 24. P.W.17 Sri Rabindra Nath Bora during trial and in his examination in chief states that in the month of March 1991 he was working as 2nd Officer at Dergaon Police Station. On 24.3.91 the then Officer-in-Charge, Dergaon P.S. entrusted him to investigate the case by writing specifically- (1) to seize stock register of 3rd A.P. Bn. magazine, (2) to seize the stock verification made by Commandant of 21/C or any other officer before institution of the case, (3) to 11 ascertain under what circumstances ammunitions were recovered and culprits, if any, (4) to seize the scooter of Havildar Bhumidhar Bora if found and left in zimma after verification, (5) to examine Commandant 21/C and other officials including the O/C and I/O of Titabar P.S. Case, which is registered under Arms Act. On the basis of the said letter dated 24.3.91 he visited 3rd A.P.Bn. He has performed his job as directed. He recovered and seized the following items in connection with this case on 27.3.91- (i) One scooter No. AXA-75 (Narmada 150) (ii) RC of AXH - 75 in the name of Md. Rafiul Hussain valid up to 31.3.89. (iii) I/C of AXH – 75 valid up to 6.11.89 in the name of Rafiul Hussain and prepared seizure list vide Ext. 10 on 27.3.91. Ext. 10 (2) is his signature. The above articles were produced by Smti Kushum Bora, wife of Bhumidhar Bora of 3rd A.P.Bn. , Titabar. He also recovered the following articles on being produced by ASI D. Neog, Dergaon P.S. in connection with this case and seized. (i) Morning report book for ammunitions of 3rd A.P. Bn., Titabar H.Q. w.e.f. 3.5.90 to 12.12.90, page 1 to 351. (ii) One binding register of all trainee of 3rd A.P. Bn. from 6.1.90 to 5.2.91. On 24.8.90 six officers were deputed to PTC, Dergaon for training issuing 35 rounds of 9 mm ammunition each with them along with the arms etc., and showing received back of 3600 ammunitions including 270 (9 mm) empty cartridges. (iii) Magazine guard arms issue register of 3rd A.P. Bn. being page No. 1 to 560 and closed on 31.1.91. In page No. 404 on 24.8.90, 210 of 9 mm ammunition were shown issued to AB S.I. Gunin Gohain on 27.8.90, 3566 rounds were issued to Commandant BTC, Dergaon vide No. BND/Q/ARMZ/718 dated 27.8.90. On 26.3.91 he seized the above articles. Ext. 16 is the said seizure list, Ext. 16 (1) is his signature. Similarly on 27.3.91 he also seized the following items- (i) One Stock book of bombs and demolition materials of 3rd A.P. Bn., Titabar, Q branch 1987 to 1991. Page No. 1 to 386, from page No. 6 to 16 shown stock of 4 sec. Hand grenade. (ii) Page No. 42 shown the stock of Dummy grenade (Drill grenade). (2) Stock book of ammunition of 3rd A.P. Bn. , H.Q. , Titabar Vol- III page No. 1 to 628, statement of physical verification of arms and ammunitions of 3 rd A.P. Bn., Titabar on 24th and 25th December,1990 on being produced by Dhaneswar Dutta, Q.M.I of 3rd A.P. Bn. in connection with the above noted case. Ext. 17 and 12

Ext. 18 are the said seizure lists and Ext. 17 (1) and 18 (1) are his signatures respectively. 25. P.W.18 Sri Mridul Kr. Dutta during trial and in his examination in chief states that on 6.11.01 he was working as Addl. S.P., Golaghat. He filed the charge sheet against the accused Rafiul Hussain, Bhumidhar Bora, Havildar Kanak Saikia, Havildar Hariprasad Bora U/S 409 IPC R/W Sec. 3/4 TADA (P) Act. Except submitting the charge sheet he did nothing in the name of investigation. Before filing the charge sheet he had gone through the case diary and thereafter on perusal of relevant documents he filed charge sheet against the above named accused persons under the above mentioned sections of law. Ext. 19 is the charge sheet and Ext. 19 (1) is his signature. 26. P.W.19 Sri Rajiv Mohan Singh during trial and in his examination in chief states that in the month of June 1993 he was serving as Supdt. of Police at Golaghat. Dergaon police station is under Golaghat district. In connection with Dergaon P.S. Case No. 76/93 he recorded the confessional statement of three accused persons namely Havildar Noren Bora, Khargeswar Saikia and Biswa Saikia. He has seen the confessional statement of accused Khargeswar Saikia which was recorded by him. Ext. 20 is the said confessional statement and Ext. 20 (1) is his signature. On 19.6.93 he recorded the confessional statement of accused Khargeswar Saikia in his office chamber at Golaghat S.P’s Office. After recording the confessional statement he read over to him and thereafter he put his signature on the said Ext. 20. Further P.W.19 during his examination in chief states that earlier he has deposed in connection with this case and today he deposing infurtherance of his earlier deposition. On March, 1993 he was working as Supdt. of Police at Golaghat. On 11.3.93 he has recorded confessional statement of accused Kanak Saikia in connection with Dergaon P.S. Case No. 331/90 U/S 3/4 TADA (P) Act. On 11.3.93 accused Kanak Saikia was produced before him for recording his confessional statement and he has cautioned him that he is not bound to make any confessional statement and if he make any confessional statement that may be used against him as evidence and inspite of caution he agreed to give his confessional statement. Thereafter he has given reflection time of three hours to the accused and he was asked to stay in visiting room of his office. After three hours the accused Kanak Saikia was again produced before him and he was again cautioned that if he makes any confessional statement it may be used against him as evidence and as he 13 desired to give his confessional statement he has recorded the confessional statement in his own hand writing. He wrote his statement as he dictated. After completion of recording of the confessional statement he has read over the same to the accused and the accused confirming the correctness of the contents of the confessional statement he put his signature in the confessional statement consisting of three pages. The accused put his signature in every page of the confessional statement. At the end of the confessional statement he has given a certificate certifying that the confessional statement 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 by him. Ext. 22 is the above mentioned confessional statement of the accused Kanak Saikia recorded U/S 15 of the TADA (P) Act in connection with Dergaon P.S. Case No. 331/90 U/S 3/4 of TADA (P) Act. Ext. 22 (1) to 22 (4) are his signatures and Ext. 22 (5) to 22 (7) are the signatures of the accused Kanak Saikia who put his signatures on the confessional statement before him. The accused confessed before him that in the last part of 1990 he was working as Armourer in the Battalion Training Center (BTC) in Dergaon and during that period in one Wednesday in the market of Dergaon one Rejim Ali met him and asked for some arms and ammunitions for the cause of ULFA. He contended that though he initially refused the request of Rejim Ali but upon his repeated request he supplied 10 nos. of H.E. 36 hand grenades to Rejim Ali in two installment in the Wednesday market. Accused Kanak Saikia also confessed that he has taken grenades from the armoury of Battalion Training Center (BTC) in a bag. He also stated that Rejim Ali gave some amount of money for supplying of the said arms and explosives to him but he did not remember the exact amount obtained by him. Accused Kanak Saikia also stated that thereafter he avoided Rejim Ali and did not supply any arms and ammunitions to Rejim Ali. Accused Kanak Saikia also confessed that after some days he met with one Mridul Goswami near the field of Recruitment Training School (RTS) who introduced him as working for ULFA and asked for some arms and ammunitions and accused Kanak Saikia gave him 5 nos. of H.E. 36 grenades and lateron 6 nos. of H.E. 36 grenades. He also gave 5 nos. of 9 mm ammunitions and 5 nos. of TNT slabs. For the said purpose of supply of arms and explosives Mridul Goswami has paid certain amount to Kanak Saikia. After completion of recording of the confessional statement he has forwarded the same in original to the District Magistrate, Golaghat Sri P. Basumatary. 14

Ext. 20 (8) is the endorsement with signature of P. Basumatary, the then District Magistrate, Golaghat. Today he has seen in the record an order issued by the Director General of Police, Assam dated 11.10.2001 whereby a prosecution sanction was accorded to prosecute accused (1) AB Constable Refiul Hussain of RTS , Dergaon, (2) Havildar Bhumidhar Bora, (3) Kanak Saikia, (4) Havildar Hem Prasad Bora and (5) Rejim Ali. At that time Sri H.K. Deka was the Director General of Police and he is acquainted with his signature. Ext. 23 is the above mentioned prosecution sanction and Ext. 23 (1) is the signature of the then D.G.P. and I.G.P., Assam Sri Hare Krishna Deka. The copies of the above mentioned prosecution sanction order were issued under Memo No. C.185/99/Vol.-XXI/366 dated 11.10.2001. Those copies were also sent by the then D.G.P. and I.G.P., Assam Sri Hare Krishna Deka. Ext. 23 (2) is the signature of Sri H. K. Deka. He is well acquainted with the signature of Sri H.K. Deka, the then D.G.P. and I.G.P., Assam. During cross examination the P.W.19 states that I/O of the case has produced accused Kanak Saikia before him and the said I/O alone has produced the accused before him. He has given three hours reflection time to the accused and during the said reflection period the accused was kept in the visiting room which was used by the public. He (P.W.19) has recorded the confessional statement in blank white sheets of paper but not in printed form. Before recording confessional statement he has explained to the accused that he was the Supdt. of Police of Golaghat district. However the same has not been reflected in the confessional statement. Though he has given three hours reflection time to the accused, the same was not reflected in the confessional statement. 27. P.W.20 Md. Ataur Rahman during trial and in his examination in chief states that on 13.9.91 he was serving as Officer-in-Charge of Dergaon P.S. and on that day he had taken up Dergaon P.S. Case No. 331/90. After taking up the case he arrested accused Kanak Saikia and forwarded him to the Court. After taking the said accused person in police custody when the accused expressed his desire to confess his guilt he forwarded him to the District Magistrate, Golaghat to record his confessional statement. On 11.3.93 he made an application to the S.P., Golaghat to record the confessional statement of accused Kanak Saikia. He also produced the accused person before the S.P., Golaghat. On the same day the then S.P., Golaghat R.M. Singh has recorded confessional statement of accused Kanak Saikia. In course of investigation of the case he arrested accused Havildar Hemo Bora of P.T.C., 15

Dergaon and forwarded him to the Court. He recorded the statement of witnesses namely Tulumoni Das and Mridul Goswami. On his transfer he handed over the case diary to his successor. 28. P.W.21 Sri Mukesh Sahay during trial and in his examination in chief states that on 8.1.91 he was working as S.P. at Golaghat. On that day one Constable ABC/25 Md. Rafiul Hussain had been brought before him for recording confessional statement U/S 15 of TADA (P) Act. At the time when Rafiul Hussain was brought before him he was repeatedly made to understand that he is not forced and by undue influence to give confessional statement. He was also allowed time for reflection. Accused Rafiul Hussain has been brought before him at 12-30 P.M. After giving time for reflection his confessional statement was recorded i.e. on 9.1.91. On the next day he has recorded his statement as stated by him in his own hand writing. After completion of recording of the confessional statement it was read over to accused Rafiul Hussain and he admitted the contents to be correct and thereafter he put his signature on the confessional statement. The statement given by accused Rafiul Hussain was voluntarily and without any threat and inducement and he has ascertained the same after putting certain questions to him and his answers have also been recorded and only after being satisfied that he is giving confessional statement voluntarily he has recorded the same. Ext. 21 is the said confessional statement recorded U/S 15 of TADA (P) Act of accused Rafiul Hussain. Ext. 21(1) to 21 (6) are his signatures. Ext. 21 (7) to 21 (11) are the signatures put by the accused Rafiul Hussain on the said confessional statement The above named accused was forwarded to him by the then Officer-in-Charge of Dergaon P.S. in connection with Dergaon P.S. Case No. 331/90 U/S 3/4 TADA (P) Act by submitting a written prayer addressing to him. Ext. 22 is the said written prayer. During his confession as stated before him and as recorded by him the accused has confessed before him that being an employee of RTS (Recruit Training School) he supplied grenades, bullets, weapons, ammunitions from the magazine of that institution as well as other institutions situated at Police Training Complex at Dergaon from time to time through some middlemen to ULFA organization knowingly and also received money for the same. Confessional statement Ext. 21 is contained four pages marked as page 1, 2, 3 (a), 3 (b) and 4. Thereafter on 18.2.91 another accused Md. Rejim Ali was also brought before him in connection with the same Dergaon P.S. Case No. 331/90 for recording his statement as desired by him and he was brought to him at about 10 16

A.M. of 18.2.91. He has asked him certain questions regarding his confession and towards the offence alleged against him and he expressed his desireness to confess and he is also satisfied with his answers of the questions as put to him. He has sent him for his reflection. Thereafter again he was brought to him on 19.2.91 and he has asked him whether he was willing to confess his guilt voluntarily and truthfully and on his reply he has recorded his statement in his own hand writing as stated by him on 19.2.91 at 2 P.M. After recording his statement he has read it over to him and he admitted the correctness of his statement of accused Rejim Ali as recorded by him. Ext. 23 (1) to 23 (7) are his signatures. Ext. 23 (8) to 23 (12) are the signatures put by the accused Rejim Ali in the above noted confessional statement. The said confessional statement contained four leaves marked as page No. 1, 2, 3. 3 (a) and 4. During his confession he has stated his involvement as being a linkman between the supplier of arms and ammunitions from P.T.C. complex Dergaon to the receipents whose names have been disclosed by him in his statement knowingly the receipents to be the members of ULFA organization. The above named accused Rejim Ali was sent to him by the then O/C Dergaon P.S. Nikunja Singh, S.I. of Police for recording confessional statement U/S 15 of the TADA (P) Act in connection with Dergaon P.S. Case No. 331/90 U/S 3/4 of TADA (P) Act. Ext. 24 is the written prayer submitted before him by the said O/C of Dergaon P.S. During cross examination the P.W.21 states that he had not seen any endorsement of any Magistrate or Designated Judge in the confessional statement i.e. Ext. 21 and Ext. 23. Further he stated that regarding his personal satisfaction he had not mentioned anything in Ext. 21 and Ext. 23 and during reflection period both the accused persons were in police custody. 29. P.W.22 Sri Lakheswar Borah during trial and in his examination in chief states that he knows accused Rafiul Hussain. He was working in the capacity of Constable Armourer along with him in the year 1990. At that time he was working in the capacity of guard in the magazine. The police in connection with an incident interrogated Rafiul Hussain also took search of his house. He was also interrogated by police and his house also searched but in his house police did not get anything. He was taken to Golaghat Police Station and in the police station he was interrogated. Rafiul Hussain asked him to show the house of Jiten Gogoi located at Bokakhat. Thereafter again one day Rafiul Hussain asked him to show the house of Jiten Gogoi and took him on his scooter to Bokakhat and he accompanied Rafiul Hussain. Thereafter he showed the house of Jiten Gogoi to Rafiul Hussain. 17

Accordingly Rafiul Hussain entered into the house of Jiten Gogoi and he came to his house. Name of the father of the Jiten Gogoi is Mumal Gogoi. He was known to him earlier. During evening while he was returning to Dergaon he found Rafiul Hussain and Jiten Gogoi at Naharjan Tiniali. Further he found that Jiten Gogoi was handing over three bundle of currency notes to Rafiul Hussain. Thereafter, he himself and Rafiul Hussain started to proceed towards Dergaon. After some days he found that Jiten Gogoi came to the house of Rafiul Hussain at R.T.S. Thereafter one day he found one Mumul Gogoi and Mukan Konwar came to the house of Rafiul Hussain and on their way he asked them as to why they came, then both of them showed him some live bullets and told him that they came to collect the aforesaid bullets. Lateron also some boys from his village visited the house of Rafiul Hussain and when he asked those boys as to why they came, then they showed him a pistol, also told him that they came to get repair of the aforesaid pistol at the house of Rafiul Hussain since he was an Armourer. He informed the aforesaid stories to his senior authorities. The deposition of P.W.22 recorded during his cross examination are reproduced here in below. During investigation police has recorded his statement. It is not a fact that he has not disclosed the story during investigation what he stated before this court during his examination in chief. On the day in question he was on duty in the capacity of Magazine Guard along with the nine others. He can not say as to whether investigating agency had examined the aforesaid nine others or not. There are about 3/4 persons were also on duty along with accused Rafiul Hussain in the department of Armourer. He was not present at the house of Rafiul Hussain when his house was searched. He can not say as to what articles were found at the house of Rafiul Hussain during search operation. He know Jiten Gogoi and his house also. Jiten Gogoi was not known to Rafiul Hussain and he identified the house of Jiten Gogoi to Rafiul Hussain. He can not say as to whether Jiten Gogoi was previously known to Rafiul Hussain or not. The distance between RTS camp to the house of Jiten Gogoi is about 45 k.m. On the day in question he did not take written permission from his superior authority to visit his house at Bokakhat but he informed verbally to his superior authority. He accompanied Rafiul Hussain on scooter to Bokakhat only one day. The distance between Bokakhat and Naharjani is about 42 k.m. It is not a fact that he hever met Refiul Hussain and Jiten Gogoi at Naharjani Tiniali. It is not a fact that he never went to his house along with Rafiul Hussain and nor he has shown the 18 house of Jiten Gogoi to Rafiul Hussain. It is not a fact that Jiten Gogoi did not pay anything to Rafiul Hussain at Naharjani Tiniali. To enter into the RTS camp permission is required. It is not a fact that he did not notice Jiten Gogoi visiting the house of Rafiul Hussain.Mumul Gogoi and Makan Konwar are hailing from his village. He did not notice the aforesaid persons at the house of Rafiul Hussain. He noticed the bullets at the hands of Mumul Gogoi and Makan Konwar but he can not say as to wherefrom they brought the aforesaid bullets. When he noticed the aforesaid bullets at the hands of Mumul Gogoi and Makan Konwar he brought the same to the notice to Khargeswar who happends to be the Havildar-Cum-Senior Armourer at that time but now he is no more. It is not a fact that he did not inform the aforesaid aspect to the aforesaid Havildar-Cum-Senior Armourer. He can not say as to the tools and instruments that are required for repairing pistol and guns. The aforesaid tools and instruments are normally kept at the magazine. He can not say as to whether the pistol and guns repairing tools and instruments are available at the house of accused Rafiul Hussain or not. He can not say the names of boys hailing from his village and who visited the house of accused Rafiul Hussain. He did not notice the aforesaid boys coming from the house of accused Rafiul Hussain nor he notice accused Rafiul Hussain repairing the pistol and guns etc. It is not a fact that no search was conducted at the house of accused Rafiul Hussain. It is not a fact that the accused Rafiul Hussain does not know the person by name Jiten Gogoi, also did not take ammunitions from Jiten Gogoi. It is not a fact that accused Rafiul Hussain does not know the person by name Mumul Gogoi and Makan Konwar nor the aforesaid persons ever visited the house of accused Rafiul Hussain. It is not a fact that the accused never furnish tools to the aforesaid persons. It is not a fact that accused never repaired any arms at his house and he deposed against the accused on being dictated by his superior officer. So these are all about the evidences on record. 30. Here in this case prosecution is launched against the accused persons U/S 3 (2) (ii) of TADA (P) Act. P.W.1 Sri Mridul Ahmed appears to be the witness of seizure list so also search but he could not bring any incriminating material against the accused persons named above. P.W.2 Sri Tulumani Dutta is also a witness of seizure list. He has recorded success to depose that P.W.3 asked him to hand over Rs. 2000/- to Hemo Prasad Bora but for what purpose he does not know. Accordingly he also could not bring any incriminating material against the accused persons named above. P.W.3 Sri Upen Das during trial exhibited the statement under Ext. 3 and 19 according to him the said statement was deposed by him on being directed by the police. P.W.4 Sri Mridul Goswami and P.W.5 Sri Rakibuddin Ali could not bring anything against the accused persons named above. P.W.6 Sri Dharmeswar Gogoi being a police official states about the registration of the case. P.W.7 Sri Debaranjan Sarmah being seizure list witness exhibited the seizure list under Ext. 7. P.W. 8 Sri Kishore Singh Rai examined the seized ammunitions and narrated about his examination under Ext. 8. The same is exhibited under Ext. 8. P.W.9 Sri Bolin Saikia being seizure list witness exhibited the seizure list under Ext. 10 whereby one scooter and its documents were seized. P.W.10 Sri Tirtho Lochan Adhikary has failed to bring materials against the accused persons named above. P.W.11 Sri Nikunja Singha was the informant of this case. During trial he has exhibited the FIR, seizure list. From his evidence it is revealed that he had informed his superior officer and superior officer instructed him to lodge the FIR but to that effect he did not make any G.D.Entry. From the deposition of P.W.12 Sri Cheniram Bora nothing was found to implicate the accused persons. Likewise from the deposition of P.W.13 Sri Dilip Hazarika nothing was found. P.W.14 Sri Brojenjit Singha also participated during investigation. P.W.15 Sri Pradip Kr. Bhagawati is the seizure list witness and he exhibited the seizure list under Ext. 12. P.W.16 Sri Prafulla Konwar apprehended the accused Rejim Ali and he recorded the statement of accused but during recording of the statement he did not find any material against the accused. P.W.17 Sri Rabindra Nath Bora seized some documents and during trial he exhibited those seizure list under Ext. 17 and Ext. 18. P.W.18 Sri Mridul Kr. Dutta siubmitted the charge sheet of this case under Ext. 19 and during trial he exhibited the same. P.W.19 Sri Rajiv Mohan Singh who was working as relevant point of time as thet Supdt. of Police, Golaghat recorded the confessional statement of accused persons namely Havildar Noren Bora, Khargeswar Saikia , Biswa Saikia and Kanak Saikia in this case. The admissibility of the said confessional statement and its evidentiary value will be discussed lateron. P.W.20 Md. Ataur Rahman had participated in the investigation of this case and arrested the accused Kanak Saikia and also forwarded him to the District Magistrate for recording his confessional statement. P.W.21 Sri Mukesh Sahay during investigation recorded the confessional statement of accused Rafiul Hussain and Rejim Ali. Both the confessional statements were exhibited by him during trial and its evidentiary value and admissibility will be discussed lateron. P.W.22 Sri Lakheswar Borah had narrated about the incident and stated about the relation of the accused Rafiul Hussain with Jiten Gogoi. 20

31. From the aforesaid facts and circumstances narrated here in before it is found that so far oral testimonies of the non-official and independent P.Ws are concerned it is found that they have failed to bring cogent materials against the accused persons named above linking them with the offences alleged of. Under the aforesaid circumstances it is to be seen as to how far the confessional statements of the accused persons exhibited under Ext. 21, 22 and 23 are sufficient to bring the incriminating materials against the accused persons named above ? 32. On a minute perusal of the aforesaid confessional statements it appears that Ext. 21 is the confessional statement of accused Rafiul Hussain. Ext. 22 is the confessional statement of accused Kanak Saikia and Ext. 23 is the confessional statement of accused Rejim Ali. Ext. 23 is recorded by the then Supdt. of Police, Golaghat Mr. Rajiv Mohan Singh (P.W.19) and the remaining confessional statements were recorded by the then Supdt. of Police, Golaghat Mr. Mukesh Sahay (P.W.21). 33. On a careful analysis of the aforesaid confessional statements it is found that none of the confessional statement was produced before the Ld. Chief Judicial Magistrate and Ld. C.J.M. did not endorse the said confessional statements. Also there are no records to show that after recording of the confessional statement accused persons were produced before the Ld. Chief Judicial Magistrate. Procedure of recording confessional statement are narrated U/S 15 of the TADA (P) Act so also under Rule 15 of the TADA rules. The same are reproduced here in below. 15. Certain confessions made to police officers to be taken into consideration.- (1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 (1 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 of Police and recorded by such police officer either in writing or on any mechanical devide 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 or conspirator for an offence under this Act or rules made there-under: (Provided that co-accused, abettor or conspirator is charged and tried in the same case together with the accused) (2) The police officer shall, before recording any confession under sub-section (1), 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 and such 21 police officer shall not record any such confession unless upon questioning the person making it, he has rfeason to believe that it is being made voluntarily. The Rule 15. Recording of confession made to police officers.- (1) A confession made by a person before a police officer and recorded by such police officer under Section 15 of the Act shall invariably be recorded in the language in which such confession is made and if that is not practicable, in the language used by such police officer for official purposes or in the language of the Designated Court and it shall form part of the record. (2) The confession so recorded shall be shown, read or played back to the person concerned and if he does not understand the language in which it is recorded, it shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his confession. (3) The confession shall, if it is in writing, be- (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 caontains a full and true 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 :- “I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I 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 p;erson making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. Sd/- Police Officer.) (4) Where the confession is recorded on any mechanical device, the memorandum referred to in sub-rule (3) in so far as it is applicable and a declaration made by the person making the confession that the said confession recorded on the mechanical device has been correctly recorded in his presence shall also be recorded in the mechanical device at the end of the confession. (5) Every confession recorded under the said Section 15 shall be sent forthwith to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having 22 jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Designated Court which may take cognizance of the offence. This apart, Hon’ble Apex Court of the country in the Kartar Singh –Vs- State of Punjab (1994) 3 SCC 569 formulated following guidelines for recording a confessional statement. The same is reproduced here in below. “ (I) The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him. (2) The person from whom a confession has been recorded under Section 15(I) of the Act, should be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under Rule 15(5) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay. (3) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the metropolitan cities and elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, should investigate any offence punishable under this Act of 1987. This is necessary in view of the drastic provisions of this Act. More so when the Prevention of Corruption Act, 1988 under Section 17 and the Immoral Traffic (Prevention) Act, 1956 under Section 13, authorize only a police officer of a specified rank to investigate the offences under those specified Acts. (5) The police officer if he is seeking the custody of any person for pre0indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody. (6) In case, the person, taken for interrogation, on receipt of the statutory warning that he is not abound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right t silence, 23 the police officer must respect his right of assertion without making any compulsion to give a statement of disclosure.” 34. Now on examination of Ext. 21, Ext. 22 and Ext. 23 in the light of the aforesaid aforesaid authorities of law of the land it is found that confessional statement of the accused persons were not recorded in compliance of the mandate of the law of the land. Therefore the said confessional statements are not at all admissible in evidence and the same can not be pressed into service for recording the conviction of the accused persons named above under the offences charged of. 35. Besides the above facts and circumstances another pertinent aspect is noticed during trial. Here in this case the ejahar was lodged on 11.12.90 and charge sheet of the case was submitted on 6.11.2001. Thus it is vividly clear that the case was under investigation on 22.5.93 on which the Amended Act of 43 of 1993 of TADA (P) Act has come into force. The aforesaid amended Act has inserted a new section under Section 20-A. The same is reproduced here in below. 20-A. Cognizance of offence,- (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police. (2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police, or as the case may be, the Commissioner of Police. The Apex Court of the country in Criminal Appeal No. 791 of 2009 (Vyas Ram @ Vyas Kahar & Ors. Vs State of Bihar) under para No. 13 observed as follows : Para 13. However, most of these arguments have already been rejected by the relevant observations in the majority judgment of this Court in Death reference 1/2001, i.e. Krishna Mochi’s case (supra) decided on 15.04.02. Besides as far as applicability of Section 20 A is concerned, the submission on behalf of the appellant is not wholly correct. In fact at the end of paragraph 25 of Hitendra Thakur (supra), this Court has held that the amendment of 1993 would apply to the cases which were pending investigation on 22.5.1993, and in which the challan had not been filed in Court till then. The present case was registered on 13.02.1992, the charge-sheet was submitted on 12.02.1993, and the congnizance was taken 6 days thereafter i.e. on 18.02.1993. Thus, all these steps were taken before coming into 24 force of the amendment act. Therefore, the appellants cannot claim the benefit of the amendment, nor does the case cited by them come to their rfescue. Also Hon’ble Apex Court of the country in Hitendra Vishnu Thakur –Vs- State of Maharashtra (1994) AIR 2623 in the para No. 27 observed as follows : Para 27. In fairness to the learned Additional Solicitor General Mr. Tulsi, it may be stated that he did not controvert the legal position (both in his oral submission and written arguments) that Amendment Act 43 of 1993 regulating the period of compulsory detention and the procedure for grant of bail, being procedural in nature, would operate retrospectively. We need not, therefore, detain ourselves to further examine the question of retrospective operation of the Amendment Act. On the basis of the submission made by learned counsel for the parties, we uphold the finding of the Designated Court, for the reasons recorded by it and those noticed by us above that the Amendment of 1993 would apply to the cases which were pending investigation on 22-5-1993 and in which the challan had not till then been filed in court. 36. Now on examination of case in hand in the light of the aforesaid judicial authority it is found that on 22.5.93 the case was under investigation. This being the position the amended section of 20-A is applicable in the case in hand. But it is found that no step was taken by the investigating agency to comply with the aforesaid provisions of the law of the land before filing of charge sheet. 37. For the reasons as stated above, the materials so far disclosed against the accused persons named above are not at all sufficient to bring home the offences charged of against the accused persons beyond all reasonable doubt and accordingly same is found to be insufficient and due to insufficiency of evidences the accused persons are entitled to get the benefit of doubt and on benefit of doubt the accused persons are acquitted and set at liberty forothwith. The seized ammunitions shall be confiscated to the State and other things shall be destroyed in due course of law. The Judgement is delivered in the open Court.

25

Given under my hand and seal of this Court today on this the 30 th day of May, 2015.

Judge, Designated Court Assam, Guwahati Dictated and corrected by me

Judge, Designated Court Assam, Guwahati

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Appendix

1. Exhibit 1 - Seizure list

2. Exhibit 2 - Statement

3. Exhibit 3 - Statement

4. Exhibit 4 - Statement

5. Exhibit 5 - Seizure list

6. Exhibit 6 - Seizure list

7. Exhibit 7 - Seizure list

8. Exhibit 8 - Report

9. Exhibit 9 - Forwawrding letter

10. Exhibit 10 - Seizure list

11. Exhibit 11 - F.I.R.

12. Exhibit 12 - Seizure list

13. Exhibit 13 - Seizure list

14. Exhibit 14 - Seizure list

15. Exhibit 15 - Seizure list

16. Exhibit 16 - Seizure list

17. Exhibit 17 - Seizure list

18. Exhibit 18 - Seizure list

19. Exhibit 19 - Charge sheet.

20. Exhibit 20 - Confessional statement.

21. Exhibit 21 - Confessional statement.

22. Exhibit 22(a) - Prayer for Confessional statement.

23. Ext. 22 (b) - Confessional statement of accused Kanak Saikia. 27

24. Exhibit 23 - Confessional statement.

25. Exhibit 24 - Prayer for confessional statement.

Judge, Designated Court Assam, Guwahati