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Wednesday, Jun 20, 2007
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Plea against sentencing in Mumbai blasts case

Staff Reporter

MUMBAI: Adding another last minute twist to the 1993 blasts trial, defence lawyer Farhana Shah filed an application seeking staying of sentencing citing a recent Supreme Court order, which says since the stringent Terrorist and Disruptive Activities (Prevention) Act was repealed, it would be unconstitutional to try and sentence persons under the same act. The delivery of judgment, which started in September 2006, has been stalled till this matter is resolved.

Advocate Farhana Shah who represented over 80 accused in the 1993 blasts case today filed the application on behalf of 16 accused who are still awaiting the sentence. The application says that the Act has expired from May 24, 1995 and there is no rational ground to suggest that acts committed before and after should be treated differently.

The application says the apex court has expressed this opinion and the question may be referred to the Bombay High Court or the Supreme Court regarding the continuation of the proceedings. The application also requests to stay the sentencing till this matter is settled.

The trial has been carried on after the act was repealed as section 1(4) of TADA makes it clear that expiry of the act would not affect any right or liability when the Act was in force. The Supreme Court noted, “it is under this provision that prosecutions under TADA have been continued although the life of the Act has expired.”

The Supreme Court order that was being referred to was by Justice S.B. Sinha and Markandey Katju in a case of criminal appeal. On May 18, 2007, the Supreme Court observed, “In my opinion the provisions that legal proceedings can be instituted or continues even after the Act has expired, is clearly violative of Article 14 of the Constitution. Supposing a law is made which makes an act committed by a person a crime on one day, but the same law says that the same act will not be a crime if committed on the next day. Surely such a law will be violative of Article 14 unless there is very strong and rational basis for such classification and differentiation.”

Special Public Prosecutor Ujjwal Nikam said that the Supreme Court order was an opinion and nothing more than that. He said that it was not legally binding and there were several judgments which upheld the prosecution and trials in similar cases.

The same order which says that the Section 1 (4) of TADA Act is “liable to be struck down as unconstitutional,” clarifies further, “since this point has not been raised in the appeal I am not giving any final opinion in the matter, but the point, to my mind, is of such a vital and wide constitutional importance that I thought it fit to express my opinion on the same, so that this opinion can be considered in other cases where prosecutions under TADA [Act] are going on or where convictions have been made in relation to the offences under Section 3 alleged to have committed before 24.5.1995.”

On hearing this application Judge P.D. Kode said he would adjourn the matter till June 21 and directed the prosecution to file a reply.

He did not pronounce any sentences and all the accused including film actor Sanjay Dutt and S.N.Thapa were asked to come on the next date of the hearing.

Other than film actor Sanjay Dutt and three others in the group, all the remaining accused have been convicted under the section 3 of TADA Act as mentioned in the Supreme Court order. Section 3 of TADA Act pertains to commission of terrorist acts.

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