The Cabinet has okayed an ordinance to repeal Pota, but decided to tone down the definition of terrorism to be included in the amended version of the Unlawful Activities (Prevention) Act, dropping from its ambit the 'unauthorised possession of specified arms/ ammunition in a notified area'.
The decision to drop Section 4(a) of Pota - which says that any person in unauthorised possession of arms or ammunition specified in columns (2) and (3) of Category I or III(a) of Schedule I of Arms Rules, 1962, in a notified area... is guilty of a terrorist act - was taken in view of its "wide misuse", especially where all parts of a state are notified.
"The clause was found amenable to great misuse, as all those found in possession of illegal arms were immediately branded as terrorists, whether or not they had any terror links," a senior MHA official said
The most prominent beneficiary of dropping this clause will be none other than UP minister Raja Bhaiyya, who was charged under Pota by the erstwhile Mayawati government for the alleged illegal possession of AK-47.
Although his case will also be reviewed by the Central Pota Review Committee, the fact that this offence no longer qualifies as terrorism under the Unlawful Activities (Prevention) Act, is expected to go in his favour and may lead the panel to recommend dropping the Pota charges against him.
At the same time, there is a view that the exclusion of unauthorised possession of arms from the purview of terrorism may handicap the intelligence agencies in cracking down on armed ultras in J&K and insurgency-hit states in the North-East, although they can still be charged under the relevant laws such as the Arms Act. Of course, the punishment will be far less stringent than the maximum sentence for life handed out under Pota.
Announcing the Cabinet's approval for an ordinance to repeal Pota and another to amend the Unlawful Activities (Prevention) Act, Union home minister Shivraj Patil said here on Friday that the "UPA had finally kept its promise made in the CMP and would bring two bills in the next session to replace the ordinances."
The new Unlawful Activities (Prevention) Act shifts the onus on the prosecution to prove an accused guilty and relaxes the stringent bail provisions of Pota, besides doing away with the provision wherein confession made before a police officer is admissible in court as well as the stringent penalty clause for persons who withhold information about a terrorist from the law enforcement agencies. All the 32 organisations banned under Pota will now be banned under the Unlawful Activities (Prevention) Act.
As for the pending Pota cases, the draft ordinance effecting its repeal provides for a sunset clause wherein the Central Pota Review Committee, or if need be more such committees, will take up review of all the cases within a year from its repeal.
Where the cases are under investigation or at the trial stage, if the review committee finds that no prima facie case is made out, they will be deemed to have been withdrawn and investigation stopped forthwith.
As for cases where the chargesheet has already been filed, if the committee finds them to be a fit case under Pota, the court can take cognisance of the offence within one year from the repeal or the anti-terror law.
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