IN THE COURT OF JUDGE DESIGNATED COURT ASSAM , GUWAHATI 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 Golaghat 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.