FARHAT HUSSAIN Vs. UNION TERRITORY OF DELHI

JUDGEMENT

(1.) By orders made on 3rd June, 1989, Sh. R.L. Chugh, Additional Sessions Judge. Delhi, dismissed the bail application of the petitioner on the ground that the case had to be tried under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'the Act') because the alleged recovery was of April, 1989 when the said Act was enforced. Similar observations were also made while rejecting the second application on 6th June, 1989. By this petition tiled under Article 226 of the Constitution of India and Section 482 of Cr.P.C. the petitioner seeks quashing of the aforesaid orders dated 3rd June 1989 and 6th June, 1989 and in particular that part of the order whereby learned Additional Sessions Judge held that the case had to be tried under the Act. In substance the grievance made in this petition is, that on the basis of the allegations, made by the prosecution, the bail application of the petitioner cannot be rejected on the ground that the case is liable to be tried by a designated court under the Act. It is claimed that it has to, be tried by an ordinary court. The facts in brief are these:-

(2.) The petitioner is said to be involved in F.I.R No. 128 dated 23-3-1989 under Section 25/54/59 of the Arms Act, 1959. inter-alia, on the allegations that one Sher Singh while driving a motor-cycle along with another person met with an accident with the result he received injuries and the police recovered from possession of Sher Singh a Pistol without magazine and on the basis of that a case F.I R. No. 128 was interrogated and and at his instance of Saran Singh was arrested in the same F.I.R.inter-alia, on the allegations that Sher Singh had received pistol from Saran Singh. The case of the prosecution, as set out in the writ petition, is that the statement of Saran Singh as an accused was recorded by the police on or before 28-3-1989 wherein Saran Singh stated that he had received Pistol from the petitioner three years ago According to the petitioner as per the said statement, Saran Singh had received Pistol sometime in March, 1986. It has been. inter alia pleaded that the statement given by Saran Singh is hit by Section 24 of the Indian Evidence Act and is not admissible under Section 27 of the said Act as recovery of the Pistol, if any, had already taken place. It is further pleaded that assuming the allegations to be correct on its face value, the possession of the petitioner relating to the said Pistol was prior to 11-4-1986. A notification under Section 6 of the Terrorist and Disruptive Activities (Prevention) Act. 1985 (No. 31 of 1985) (for short '1985 Act') was issued on April 11, 1986 extending the provisions of 1985 Act to Union Territory of Dalhi. The pentitioner says that as even according to the prosecution the possession of the petitioner in respect of the Pistol relates to the period prior to 11- 4-1986 the provisions of the Act or the 1985 Act cannot be applied and, if at all, the petitioner can be prosecuted only under the provisions of the Arms Act.

(3.) It has also. been averrad in the petition that the bail applications of aforesaid Sher Singh was considered by the court of Additional Sessions Judge and not by a designated court Sher Singh was granted bail by orders of Additional Sessions Judge, dated 4-4-1989. The bail application of Saran Singh was also not considered by the designated court but was considered by Direct and Sessions Judge, Delhi, and by orders made on 28th March 1989 made by District and Sessions Judge. Delhi, Saran Singh was also ordered to be admitted on bail. One of the contention of Mr.Grover. learned counsel for the petitioner was that application of the person from whose possession the Pistol was recovered was considered by the ordinary court and not by designated court, a different treatment could not be meted out to the petitioner a gainst whom only allegations are that he gave possession of the pistol to Saran Singh in March. 1986. Mr. Grover contended that bail application of the petitioner could not be dismissed on the ground that it can be considered only by the. designated court under the Act.