Case: Sri Indra Das Vs. State of Assam

2. The facts of the case are similar to the facts in Arup Bhuyan vs. State of Assam Criminal Appeal No.889 of 2007, which we allowed on 3.2.2011.  3. As in the case of Arup Bhuyan (supra), the only evidence against the appellant in this case is his alleged confession made to a police officer, for which he was charged under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short `TADA).  4. The facts of the case are that one Anil Kumar Das went missing from the evening of 6.11.1991, and his dead body was recovered after two months on 19.1.1992 from the river Dishang. Five persons including the appellant were charged for his death. The appellant was not named in the FIR. No prosecution witness has attributed any role to the appellant. The charge sheet in the case was filed after a gap of nine years from the date of the commission of the offence, and charges were framed more than four years after filing of the charge sheet. There is no evidence against the appellant except the confessional statement.  5. The alleged confession was subsequently retracted by the appellant. The alleged confession was not corroborated by any other material. We have held in Arup Bhuyans case (supra) that confession is a very weak type of evidence, particularly when alleged to have been made to the police, and it is not safe to convict on its basis unless there is adequate corroborative material. In the present case there is no corroborative material.  6. However, the appellant has been convicted under Section 3(5) of TADA which makes mere membership of a banned organization a criminal act, and sentenced to five years rigorous imprisonment and Rs.2000/- fine.  7. In Arup Bhuyans case (supra) we have stated that mere membership of a banned organization cannot incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence. In the present case, even assuming that the appellant was a member of ULFA which is a banned organization, there is no evidence to show that he did acts of the nature above mentioned. Thus, even if he was a member of ULFA it has not been proved that he was an active member and not merely a passive member. Hence the decision in Arup Bhuyans case (supra) squarely applies in this case.

Reasoning:
26. It has been submitted by the learned counsel for the Government before the TADA Court that under many laws mere membership of an organization is illegal e.g. Section 3(5) of Terrorists and Disruptive Activities, 1989, Section 10 of the Unlawful Activities (Prevention ) Act 1967, etc. In our opinion these statutory provisions cannot be read in isolation, but have to be read in consonance with the Fundamental Rights guaranteed by our Constitution31. Similarly, we are of the opinion that the provisions in various statutes i.e. 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) which on their plain language make mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases, otherwise these provisions will become unconstitutional as violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional34. The rule was applied by the Supreme Court in Kedar Nath Singh vs. State of Bihar (we have already referred to this decision earlier) in its construction of Section 124A of the IPC. The Section which relates to the offence of sedition makes a person punishable who `by words, either spoken or written or by sign or visible representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law. The Section, as construed by the Privy Council in Bal Gangadhar Tilak vs. Queen Empress ILR 22 Bom 528 (PC); Annie Besant vs. A-G of Madras AIR 1919 PC 31; and Emperor vs. Sadasiv Narain AIR 1947 PC 84; did not make it essential for an activity to come within its mischief that the same should involve intention or tendency to create disorder, or disturbance of law and order or incitement to violence. The Federal Court in Niharendra Dutta vs. Emperor AIR 1942 FC 22 had, however, taken a different view. In the Supreme Court when the question came up as to the Constitutional validity of the Section, the Court differing from the Privy Council adopted the construction placed by the Federal Court and held that on a correct construction, the provisions of the Section are limited in their application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence; and one of the reasons for adopting this construction was to avoid the result of unconstitutionality in view of Articles 19(1)(a) and 19(2) of the Constitution