{"id":88397,"date":"2009-07-07T00:00:00","date_gmt":"2009-07-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ganesh-gogoi-vs-state-of-assam-on-7-july-2009-2"},"modified":"2016-03-27T13:43:51","modified_gmt":"2016-03-27T08:13:51","slug":"ganesh-gogoi-vs-state-of-assam-on-7-july-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ganesh-gogoi-vs-state-of-assam-on-7-july-2009-2","title":{"rendered":"Ganesh Gogoi vs State Of Assam on 7 July, 2009"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ganesh Gogoi vs State Of Assam on 7 July, 2009<\/div>\n
Author: Ganguly<\/div>\n
Bench: Dalveer Bhandari, Asok Kumar Ganguly<\/div>\n
                                                                       REPORTABLE\n\n               IN THE SUPREME COURT OF INDIA\n               CRIMINAL APPELLATE JURISDICTION\n\n\n\n          CRIMINAL APPEAL NO. 1018 OF 2007\n\n\nGanesh Gogoi                                   .....Appellant(s)\n\n\n\n        - Versus -\n\n\n\nState of Assam                                 ....Respondent(s)\n\n\n\n\n                         J U D G M E N T\n<\/pre>\n
GANGULY, J.\n<\/p>\n<\/p>\n
1.      This     appeal        has     been   filed    under    Section<\/p>\n
        19(1)      of      the       Terrorist        and    Disruptive<\/p>\n
        Activities (Prevention) Act, 1987 (hereinafter<\/p>\n
        referred to as the `TADA(P) Act’) impugning<\/p>\n
        the     judgment       dated     11.7.2007     passed    by   the<\/p>\n
        learned Designated Court, Assam, Guwahati in<\/p>\n
        Sessions        Case     No.     68   of   2001     whereby   the<\/p>\n
                                     1<\/span>
\n     appellant has been convicted by the learned<\/p>\n
     Judge of the Designated Court under Section<\/p>\n
     3(2)(i)      TADA(P)    Act   and      was   sentenced      to<\/p>\n
     undergo imprisonment for life and to pay a<\/p>\n
     fine      of    Rs.2000\/-        in     default     further<\/p>\n
     imprisonment for six months.\n<\/p>\n<\/p>\n
2.   On the benefit of doubt being extended, the<\/p>\n
     other    accused,      namely,    Premodhar       Gogoi    was<\/p>\n
     acquitted.\n<\/p>\n<\/p>\n
3.   The material facts of the case as alleged by<\/p>\n
     the prosecution are that on 2.9.1991 at about<\/p>\n
     7.30 a.m., Sub-Inspector B. Kalita, who was<\/p>\n
     in-charge of Naohalia Out Police Post informed<\/p>\n
     the Office-in-Charge of Bordubi Police Station<\/p>\n
     over telephone that on the previous day i.e.<\/p>\n
     on 1.9.1991 at about 7.30 p.m. one Dinanath<\/p>\n
     Agarwalla Naohalia was taken away in a Maruti<\/p>\n
     car     by     some    unknown        persons     and     this<\/p>\n
     information      was    entered       vide   General    Diary<\/p>\n
     Entry No. 19 dated 2.9.1991.\n<\/p>\n
                             2<\/span>\n<\/p>\n
4.   Thereafter,     Prabhat          Gogoi,   Officer-in-Charge<\/p>\n
     along   with   his     staff       reached     the   place    of<\/p>\n
     occurrence for investigation and subsequently<\/p>\n
     an FIR was lodged by him.\n<\/p>\n
5.   On   conclusion      of    the     investigation,     charge-<\/p>\n
     sheet dated 25.9.2001 was filed under Sections<\/p>\n
     365\/302\/34 of the Indian Penal Code read with<\/p>\n
     Sections    3(2)(i)        and    3(5)    of   the   TADA    (P)<\/p>\n
     Act against the appellant and Premodhar Gogoi.<\/p>\n<\/blockquote>\n
6.   Thereafter,       on           10.1.2003,      the    learned<\/p>\n
     Designated Court, Assam framed charges against<\/p>\n
     the appellant under Section 302 of the Indian<\/p>\n
     Penal Code and Section 3(5) of the TADA(P)<\/p>\n
     Act. In the Trial evidence was adduced and the<\/p>\n
     appellant was examined under Section 313 of<\/p>\n
     the Code of Criminal Procedure and ultimately<\/p>\n
     by the impugned judgment dated 11.7.2007 the<\/p>\n
     appellant      was        convicted       by   the    learned<\/p>\n
     Designated Court under Section 3(2)(i) of the<\/p>\n
                                3<\/span>
\n     TADA(P)     Act     and        was    sentenced          as    stated<\/p>\n
     hereinabove.\n<\/p>\n<\/p>\n
7.   Mr.     P.K.      Ghosh,        learned         senior        counsel<\/p>\n
     appearing      on   behalf       of       the   appellant          while<\/p>\n
     assailing the judgment under appeal advanced<\/p>\n
     various submissions.\n<\/p>\n<\/p>\n
8.   His    first     submission          is    that    there       is    no<\/p>\n
     evidence which can connect the appellant with<\/p>\n
     the     alleged      incident         and,       therefore,          the<\/p>\n
     judgment       of    the        learned          Judge        of     the<\/p>\n
     Designated     Court       is    wholly         unsustainable         in<\/p>\n
     law.    Learned     Counsel          further      submitted         that<\/p>\n
     apart     from      the        aforesaid          infirmity          the<\/p>\n
     appellant      has     been          convicted       only          under<\/p>\n
     Section 3(2)(i) of TADA(P) Act whereas he has<\/p>\n
     not been charged under that Section at all.<\/p>\n
9.   Learned Counsel submitted that in view of the<\/p>\n
     charge which has been framed, he could not<\/p>\n
     have been convicted under Section 3(5) of the<\/p>\n
                                4<\/span>
\n      TADA(P) Act. He submitted that a charge under<\/p>\n
      Section   3(2)(i)    and    a    charge      under    Section<\/p>\n
      3(5) of the TADA(P) Act are different charges<\/p>\n
      and one is not encompassed by the other. His<\/p>\n
      further submission is that admittedly Section<\/p>\n
      3(5) of the TADA(P) Act has been inserted in<\/p>\n
      the statute book in 1993 by Section 4 of Act<\/p>\n
      43 of 1993.\n<\/p>\n<\/p>\n
10.   The incident, as alleged by the prosecution,<\/p>\n
      had taken place in September 1991. Therefore,<\/p>\n
      the   appellant    cannot       be    charged   for    having<\/p>\n
      committed     an    offence          which   was      not   in<\/p>\n
      existence on the day of alleged commission but<\/p>\n
      was brought into the statute much later.<\/p>\n
11.   This appeal has been filed before this Court<\/p>\n
      under Section 19(1) of the TADA(P) Act which<\/p>\n
      provides for an appeal both on facts and on<\/p>\n
      law   and this Court being the First Appellate<\/p>\n
      Court is entitled to look into the evidence on<\/p>\n
      record.   Section 19(1) reads as under:<\/p>\n
                            5<\/span>
\n      “19. Appeal – (1) Notwithstanding anything
\n      contained in the Code, an appeal shall lie
\n      as a matter of right from any judgment,
\n      sentence   or    order,   not   being   an
\n      interlocutory order, of a Designated Court
\n      to the Supreme Court both on facts and on
\n      law.\n<\/p>\n<\/p>\n
12.   In this case from the impugned judgment it is<\/p>\n
      clear that there is no direct evidence but<\/p>\n
      there   is    only       circumstantial       evidence     (see<\/p>\n
      para 20 of the impugned judgment).<\/p>\n
13.   From paragraph 3 of the impugned judgment, it<\/p>\n
      appears      that    the       prosecution    examined     ten<\/p>\n
      witnesses.\n<\/p>\n<\/p>\n
14.   P.W.1 – Dharam Chand Agarwalla is the brother<\/p>\n
      of the deceased. He is not an eye witness. He<\/p>\n
      was informed by his mother about the missing<\/p>\n
      of his elder brother Dinanath Agarwalla and<\/p>\n
      his   evidence      is    that    he   does   not   know   who<\/p>\n
      kidnapped Dinanath Agarwalla from their house<\/p>\n
      on the material day and killed him. Therefore,<\/p>\n
                                 6<\/span>
\n      the     evidence     of    P.W.1       is    that       his    elder<\/p>\n
      brother was kidnapped from their house.<\/p>\n
15.   But the evidence of the prosecution is that<\/p>\n
      Dinanath Agarwalla was kidnapped from the pan<\/p>\n
      shop of Narayan Dey (P.W.2).\n<\/p>\n<\/p>\n
16.   P.W.2- Narayan Dey in his evidence stated that<\/p>\n
      police     took    his      signatures       on     a     prepared<\/p>\n
      statement to the effect that the deceased was<\/p>\n
      killed on the previous day though he had no<\/p>\n
      knowledge     about        the        killing     of      Dinanath<\/p>\n
      Agarwalla. P.W.2 was declared hostile and was<\/p>\n
      cross-examined       by        the    prosecution.        In     his<\/p>\n
      cross-examination              also    he    stuck        to      his<\/p>\n
      evidence     given        in    Examination-in-Chief.              In<\/p>\n
      cross-examination he deposed that he did not<\/p>\n
      state before the I.O. that Dinanath came to<\/p>\n
      his shop for taking pan and one Maruti car<\/p>\n
      arrived    near    his         shop    and   accused          persons<\/p>\n
      while     coming     out        of     the    car       had     some<\/p>\n
                                 7<\/span>
\n      discussion with Dinanath and he was taken in<\/p>\n
      the car which was driven towards Madhuting.<\/p>\n
17.   P.W.3-   Sushil      Mazumdar           was     also   declared<\/p>\n
      hostile and he stated in Chief that Police did<\/p>\n
      not record any statement from him in regard to<\/p>\n
      the death of the deceased. He was similarly<\/p>\n
      cross-examined by the Police and in the cross-<\/p>\n
      examination     also      he       stuck   to    his   original<\/p>\n
      statement and made it very clear that he did<\/p>\n
      not see the appellant and the other accused<\/p>\n
      person kidnapping the deceased from the pan<\/p>\n
      shop of Narayan Dey.\n<\/p>\n<\/p>\n
18.   P.W.4-   Joyram     Das       is    a   police    officer.   He<\/p>\n
      deposed that on 17.8.1992 he was working as an<\/p>\n
      Office in-charge at Borubi Police Station.                   He<\/p>\n
      deposed that he took over the investigation<\/p>\n
      and arrested one of the accused persons and<\/p>\n
      from his interrogation came to know that on<\/p>\n
      the   alleged       date       of       occurrence     Dinanath<\/p>\n
      Agarwalla     was      kidnapped           by    the    present<\/p>\n
                                8<\/span>
\n      appellant.            In       cross-examination        P.W.4<\/p>\n
      admitted that he did not send Premodhar Gogoi<\/p>\n
      to any Magistrate for recording his statement.<\/p>\n
      It appears from the so called statement of<\/p>\n
      Premodhar Gogoi that the same is not at all<\/p>\n
      admissible having been made before a police<\/p>\n
      officer while in custody and in the course of<\/p>\n
      alleged interrogation.            Therefore, it has been<\/p>\n
      rightly contended by the learned counsel for<\/p>\n
      the appellant that the deposition of P.W.4 is<\/p>\n
      not admissible in evidence.\n<\/p>\n<\/p>\n
19.   P.W.5 is one Bibhusan Gogoi.                He had merely<\/p>\n
      seen the dead body of victim fastened by rope<\/p>\n
      and he was informed by another person that the<\/p>\n
      name of the deceased is Dinanath Agarwalla.<\/p>\n
      He   is   not   a   material      witness   at   all.      He<\/p>\n
      categorically stated that he did not know who<\/p>\n
      had killed the Dinanath, the victim.<\/p>\n
20.   P.W.6-Suresh        Kr.    Agarwalla   is    also   not    a<\/p>\n
      material witness.              He merely identified the<\/p>\n
                                 9<\/span>
\n      dead body of Dinanath and merely deposed that<\/p>\n
      the hands and feet of dead body were tied with<\/p>\n
      a rope and the rope was seized by the police<\/p>\n
      and he signed the said document of seizure.<\/p>\n
21.   P.W.7-Prabhat Gogoi is another police officer.<\/p>\n
      He initially took up the investigation and he<\/p>\n
      recorded      the    statements        of    witnesses    Dharam<\/p>\n
      Chand Agarwalla and Sushil Mazumdar but they<\/p>\n
      have not been examined in Court.                    He claimed<\/p>\n
      to have filed the FIR.                 In cross-examination<\/p>\n
      P.W.7    deposed      that     in     the    FIR   he    has   not<\/p>\n
      specifically mentioned the involvement of the<\/p>\n
      appellant in the aforesaid incident.                      He did<\/p>\n
      not mention anything about the statement of<\/p>\n
      witness Sushil Mazumdar.               The FIR was recorded<\/p>\n
      by      the     P.W.7         in     this      case      “during<\/p>\n
      investigation”.         However, in the course of his<\/p>\n
      evidence P.W.7 never stated anything about the<\/p>\n
      appellant       being    a         member    of    the    United<\/p>\n
      Liberation Front of Assam.                  In the FIR it has<\/p>\n
      clearly       been   stated        “that    investigation      has<\/p>\n
                               10<\/span>
\n      already been taken up by me.                       The certified<\/p>\n
      copy of G.D.E. No.19 is enclosed herewith.”<\/p>\n
22.   It   is    clear    from          the    aforesaid       statement,<\/p>\n
      investigation           in        the     case      had     already<\/p>\n
      commenced and once investigation commences the<\/p>\n
      FIR is hit by Section 162 Cr.P.C. and no value<\/p>\n
      can be attached to the same.\n<\/p>\n<\/p>\n
23.   P.W.8- Satyaraj Hazarika merely deposed that<\/p>\n
      he     submitted        the        prayer     for        accord    of<\/p>\n
      necessary       prosecution             sanction    to    the     then<\/p>\n
      D.G.P of Assam and he also filed certain other<\/p>\n
      documents.         He is not a material witness at<\/p>\n
      all.\n<\/p>\n<\/p>\n
24.   P.W.9     is      Dr.    N.        Sonowal,        who    conducted<\/p>\n
      postmortem on the dead body of the victim.<\/p>\n
25.   P.W.10-        Bipulananda          Choudhury        is     another<\/p>\n
      police     officer,      who        obtained       sanction       from<\/p>\n
      D.G.P     Assam    and       submitted       the    charge      sheet<\/p>\n
                                   11<\/span>
\n          against the accused persons.                    He is also not a<\/p>\n
          material witness.\n<\/p>\n<\/p>\n
26.       From the above discussions, this Court finds<\/p>\n
          that    there        is    no     evidence      to   connect       the<\/p>\n
          appellant with the alleged incident of killing<\/p>\n
          of the victim.\n<\/p>\n<\/p>\n
27.       Apart    from        that       this    Court     finds     that    in<\/p>\n
          Section       313         Cr.P.C.       examination         of     the<\/p>\n
          accused-appellant,                the     Court      has     put     a<\/p>\n
          question       which        is     totally      unfair.          Three<\/p>\n
          questions       were       put     to   the     appellant.         The<\/p>\n
          second question is as follows:-\n<\/p>\n
      “Q. No.2 The witnesses deposed that you are a
\n              member of ULFA?”\n<\/p>\n<\/p>\n
28.       It     does    not        appear       that    any   witness       has<\/p>\n
          deposed       that    the        appellant      is   a    member    of<\/p>\n
          ULFA.         Therefore,           it     is    a    very    unfair<\/p>\n
          question. This Court has allegedly convicted<\/p>\n
          the appellant under Section 3(2)(i) but the<\/p>\n
                                       12<\/span>
\n      ingredients of the Section 3(2)(i) were not<\/p>\n
      been put to him.            Therefore, there has not<\/p>\n
      been a fair examination under Section 313 of<\/p>\n
      the Cr.P.C. at all.         The provisions of Section<\/p>\n
      313 are for the benefit of the accused and are<\/p>\n
      there to give the accused an opportunity to<\/p>\n
      explain    the    “circumstances      appearing     in   the<\/p>\n
      evidence against him”.          In Basavaraj R. Patil<\/p>\n
      & others Vs. State of Karnataka & others –<\/p>\n
      (2000) 8 SCC 740, this Court held that those<\/p>\n
      provisions are not meant to nail the accused<\/p>\n
      to   his   disadvantage       but    are   meant   for   his<\/p>\n
      benefit.      These provisions are based on the<\/p>\n
      salutary principles of natural justice and the<\/p>\n
      maxim `audi alteram partem’ has been enshrined<\/p>\n
      in   them.       Therefore,    the    examination    under<\/p>\n
      Section 313 has to be of utmost fairness.                But<\/p>\n
      that has not been done here.               This is also a<\/p>\n
      factor vitiating the trial.\n<\/p>\n<\/p>\n
29.   It appears that in the instant case the charge<\/p>\n
      which   was   framed    by    the    Court   against     the<\/p>\n
                             13<\/span>
\n          appellant was under Section 3(5) of the said<\/p>\n
          Act.     But such a charge could not have been<\/p>\n
          framed against him by the Court in as much as<\/p>\n
          on the alleged date of occurrence, i.e. in<\/p>\n
          September 1991, Section 3(5) of the Act was<\/p>\n
          not brought on the statute.              The framing of<\/p>\n
          the    charge    was   thus       inherently    defective.<\/p>\n
          However the appellant has been convicted only<\/p>\n
          under Section 3(2)(i).            Section 3(2)(i) reads<\/p>\n
          as follows:-\n<\/p>\n
\n      “3(2)    Whoever     commits      a    terrorist        act,
\n      shall, –\n<\/p>\n
      (i) If such act has resulted in the death of
\n      any person, be punishable with death or
\n      imprisonment for life and shall also be
\n      liable to fine.”\n<\/p>\n<\/p>\n
30.       On     perusal   of    the    provision        of     Section<\/p>\n
          3(2)(i), it is clear that Section 3(2)(i) has<\/p>\n
          to be read with Section 3(1).            Section 3(1) is<\/p>\n
          set out herein below:-\n<\/p>\n
      “3.    Punishment for terrorist acts. – (1)
\n      Whoever with intent to overawe the Government
\n      as by law established or to strike terror in
\n                                 14<\/span>
\n      the people or any section of the people or to
\n      alienate any section of the people or to
\n      adversely affect the harmony amongst different
\n      sections of the people does any act or thing by
\n      using bombs, dynamite or other explosive
\n      substances or inflammable substances or fire-
\n      arms or other lethal weapons or poisons or
\n      noxious gases or other chemicals or by any
\n      other    substances   (whether  biological   or
\n      otherwise) of a hazardous nature in such a
\n      manner as to cause, or as is likely to cause,
\n      death of, or injuries to, any person or persons
\n      or loss of, or damage to, or destruction of,
\n      property or disruption of any supplies or
\n      services    essential  to   the  life  of   the
\n      community, or detains any person and threatens
\n      to kill or injure such person in order to
\n      compel the Government or any other person to do
\n      or abstain from doing any act, commits a
\n      terrorist act.”\n<\/p>\n<\/p>\n
31.       The    provision         of    Section    3(1)    has     been<\/p>\n
          construed by this Court in several cases and<\/p>\n
          reference in this connection may be made to<\/p>\n
          the    decision     of    Hitendra   Vishnu      Thakur    and<\/p>\n
          others Vs. State of Maharashtra and others –<\/p>\n
          (1994)    4   SCC    602,       wherein   learned       judges<\/p>\n
          explained the ambit of a terrorist act which<\/p>\n
          has not been defined in detail under TADA(P)<\/p>\n
          Act.     Sub-section (h) of Section 2 of the Act<\/p>\n
          defines `terrorist act’ to mean the same thing<\/p>\n
                                    15<\/span>
\n          as   assigned       to     it   in   sub-section     (i)   of<\/p>\n
          Section 3.\n<\/p>\n<\/p>\n
32.       Section 3(1) of the said Act is therefore very<\/p>\n
          vital for understanding the true meaning and<\/p>\n
          purport of terrorist acts.             In paragraph 5 of<\/p>\n
          Hitendra Vishnu Thakur (supra), at page 617 of<\/p>\n
          the report, Dr. Justice A.S. Anand (as His<\/p>\n
          Lordship     then        was)   analysed   Section    3    as<\/p>\n
          follows:-\n<\/p>\n
\n      “5.   Section 3 when analysed would show that
\n      whoever   with  intent   (i)  to   overawe   the
\n      Government as by law established; or (ii) to
\n      strike terror in the people or any section of
\n      the people; or (iii) to alienate any section of
\n      the people; or (iv) to adversely affect the
\n      harmony amongst different sections of the
\n      people, does any act or things by using (a)
\n      bombs or dynamite, or (b) other explosive
\n      substances, or (c) inflammable substances, or\n<\/p>\n
      (d) firearms, or (e) other lethal weapons, or\n<\/p>\n
      (f)   poisons  or   noxious   gases   or   other
\n      chemicals, or (g) any other substances (whether
\n      biological or otherwise) of a hazardous nature
\n      in such a manner as to cause or as is likely
\n      to cause (i) death, or (ii) injuries to any
\n      person or persons, (iii) loss of or damage to
\n      or destruction of property, or (iv) disruption
\n      of any supplies or services essential to the
\n      life of the community, or (v) detains any
\n      person and threatens to kill or injure such
\n      person in order to compel the Government or any
\n      other person to do or abstain from doing any
\n      act, commits a `terrorist act’ punishable under
\n      Section 3 of TADA.”\n<\/p>\n
                                     16<\/span>\n<\/p>\n
33.   It is clear from the perusal of Section 3 and<\/p>\n
      its interpretation in Hitendra Vishnu Thakur<\/p>\n
      (supra) that the requisite intention is the<\/p>\n
      sine    qua    non   of    terrorist      activity.       That<\/p>\n
      intention is totally missing in this case.                  It<\/p>\n
      is not there in the charge and it has also not<\/p>\n
      come in the evidence.               Therefore, both the<\/p>\n
      framing of charges against the appellant under<\/p>\n
      Section 3(5) and his conviction under Section<\/p>\n
      3(2)(i)        of the said Act are totally bad in<\/p>\n
      law.\n<\/p>\n<\/p>\n
34.   In Hitendra Vishnu Thakur (supra) the Court<\/p>\n
      has made it clear that in many cases criminal<\/p>\n
      activities constituting the terrorist act may<\/p>\n
      also be an offence under the ordinary penal<\/p>\n
      law.    Therefore before framing a charge under<\/p>\n
      the stringent provisions of TADA(P) Act the<\/p>\n
      Court has to be very careful.                     In view of<\/p>\n
      seriousness of the offence alleged under the<\/p>\n
      stringent      provisions      of   the    said    Act,   this<\/p>\n
      Court     in     Hitendra      Vishnu      Thakur     (supra)<\/p>\n
                                17<\/span>
\n(paragraph   14   at    page   623   of   the   report),<\/p>\n
explained the Court’s duty in very explicit<\/p>\n
terms and which I quote:-\n<\/p>\n
“14. …An onerous duty is therefore cast
\non the Designated Courts to take extra
\ncare to scrutinise the material on the
\nrecord and apply their mind to the
\nevidence and documents available with the
\ninvestigating      agency      before    charge-
\nsheeting an accused for an offence under
\nTADA. The stringent provisions of the Act
\ncoupled   with    the     enhanced    punishment
\nprescribed for the offences under the Act
\nmake the task of the Designated Court even
\nmore onerous, because the graver the
\noffence, greater should be the care taken
\nto see that the offence must strictly fall
\nwithin the four corners of the Act before
\na charge is framed against an accused
\nperson. Where the Designated Court without
\nas much as even finding a prima facie case
\non the basis of the material on the
\nrecord,   proceeds       to   charge-sheet    an
\naccused under any of the provisions of
\nTADA, merely on the statement of the
\ninvestigating agency, it acts merely as a
\npost office of the investigating agency
\nand does more harm to meet the challenge
\narising out of the `terrorist’ activities
\nrather      than       deterring       terrorist
\nactivities. The remedy in such cases would
\nbe worse than the disease itself and the
\ncharge against the State of misusing the
\nprovisions      of       TADA     would     gain
\nacceptability, which would be bad both for
\nthe criminal and the society. Therefore,
\nit is the obligation of the investigating
\nagency to satisfy the Designated Court
\nfrom the material collected by it during
\nthe investigation, and not merely by the
\nopinion   formed      by    the    investigating
\nagency,    that     the     activity    of   the
\n`terrorist’ falls strictly within the
\n                       18<\/span>
\n      parameters of the provisions of TADA
\n      before seeking to charge-sheet an accused
\n      under TADA. The Designated Court must
\n      record    its     satisfaction      about   the
\n      existence of a prima facie case on the
\n      basis of the material on the record before
\n      it   proceeds    to    frame   a   charge-sheet
\n      against an accused for offences covered by
\n      TADA. Even after an accused has been
\n      charge-sheeted for an offence under TADA
\n      and the prosecution leads evidence in the
\n      case,   it    is    an    obligation    of  the
\n      Designated Court to take extra care to
\n      examine the evidence with a view to find
\n      out whether the provisions of the Act
\n      apply or not. The Designated Court is,
\n      therefore, expected to carefully examine
\n      the evidence and after analysing the same
\n      come to a firm conclusion that the
\n      evidence   led    by    the   prosecution   has
\n      established that the case of the accused
\n      falls strictly within the four corners of
\n      the Act before recording a conviction
\n      against an accused under TADA.”\n<\/p>\n<\/p>\n
35.   In the instant case the Designated Court has<\/p>\n
      failed   in    its    duty   both   in    the   matter   of<\/p>\n
      application of mind to the materials on record<\/p>\n
      at the stage of framing of charge and also at<\/p>\n
      the time of convicting the appellant.<\/p>\n
36.   This Court is, therefore, of the clear opinion<\/p>\n
      that   in     the    facts   of   the    case   no   charge<\/p>\n
      against the accused under the said Act could<\/p>\n
      be framed, consequently he cannot be convicted<\/p>\n
                              19<\/span>
\n        under the provisions of the said Act.                 In any<\/p>\n
        way in the instant case as discussed above,<\/p>\n
        there is no evidence to connect the appellant<\/p>\n
        with   the    alleged     incident.          Therefore,     the<\/p>\n
        judgment and order of conviction is totally<\/p>\n
        unsustainable in law and is set aside.                      The<\/p>\n
        appeal succeeds and the appellant be set at<\/p>\n
        liberty      forthwith        if   he   is   not   wanted   in<\/p>\n
        connection with any other case.\n<\/p>\n<\/p>\n
                                       …………………..J.\n<\/p>\n
                                       (DALVEER BHANDARI)<\/p>\n
                                       …………………..J.\n<\/p>\n
New Delhi                              (ASOK KUMAR GANGULY)\nJuly 7, 2009\n\n\n\n\n                                 20<\/span>\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ganesh Gogoi vs State Of Assam on 7 July, 2009 Author: Ganguly Bench: Dalveer Bhandari, Asok Kumar Ganguly REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1018 OF 2007 Ganesh Gogoi …..Appellant(s) – Versus – State of Assam ….Respondent(s) J U D G M E N […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-88397","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGanesh Gogoi vs State Of Assam on 7 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ganesh-gogoi-vs-state-of-assam-on-7-july-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ganesh Gogoi vs State Of Assam on 7 July, 2009 - 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