RAFIQ ABID PATEL Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) THE petitioner in both these writ petitions are co-accused in C. R. No. I-43 of 1991 registered at the Kashimira Police Station, Taluka Thane, District Thane. These petitions are for quashing the application of the provisions of sections 5 and 6 of the Terrorist and Distruptive Activities (Prevention) Act, 1987 (hereinafter called " the TADA Act") to the accused in C. R. No. I-43 of 91. The Petitioner have also prayed for striking down section 5 read with section 2 (f) of the TADA Act, as being ultra vires the Constitution of India. This prayer, however, is not pressed by Mr. Chitnis, learned Advocate for the petitioners in these petitions. He has confined his submissions in these writ petitions to setting aside the application of sections 5 and 6 of the TADA Act to the petitioners. The petition have subsequently been amended in view of the documents dated 24-7-1991. The petitioners have now also challenged the application of section 3 of the TADA Act to them.

(2.) THESE petitions are filed under Article 226 of the Constitution. The relevant facts in respect of C. R. No. I-43 of 1991 registered with the Kashimira Police Stations are as follows. :

(3.) THE complainant, Raju Patel, carries on business as a supplier of building material. He has alleged that on 3rd April, 1991 one Asif Gulam Rasool Patel and his brothers threatened the partners of the complainant that their lorries carrying building materials would not be allowed to ply. The complainant has alleged that these persons, at about 10-30 a. m. , stopped his lorry MCY 1111, which was carrying stones from Vasai to Mira Road. Asif and his brother assaulted the driver of the truck. On learning about this incident from his driver, the complainant registered a complaint with Kashimira Police Station (C. R. No. 42 of 1991 ). He also took the help of one Hitendra Thakur, who is an M. L. A. of the locality. On the evening of 3rd April, 1991, the complainant, his partners, Hitendra Thakur, M. L. A. and the body guard of Thakur were returning from the Police Station when their vehicles were stopped by Asif Patel and a group of other persons (including the petitioners) near the house of Asif Patel. It is alleged that when the complainant got down from his can he noticed that Asif Patel had a revolver in his hand whereas the other persons, about 25 to 31 in number, were armed with stones and soda water bottles. The complainant snatched the revolver from the hands of Asif Patel and handed it over to the constable, who was the bodyguard of Thakur. At the same time, Kaka Patel, a brother of Asif Patel attempted to assault the complainant with as word. This resulted in a small injury on the left hand thumb of the complainant. The other assailants threw soda water bottles and stones at the complainant and his group. With a view to dispersing the crowd, two rounds were fired in the air by the bodyguard of Hitendra Thakur. A complaint regarding this incident was made by Raju Patel at the Kashimira Police Station being C. R. No. I-43 of 1991. On the basis of this complaint the police has registered an offence under sections 307, 341, 147,148,149,324,336,427 of the Indian Penal Code and sections 25 (1) (s) and 27 of the Arms act.