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Crl.AppealNo.2295-2296of2010

Crl.AppealNo.2295-2296of2010

Crl.A.Nos.2295-2296 of 2010 -96-We will now proceed to answer each point in detail.73. Justice Vivian Bose while dealing with theincipient constitution in the case of State of WestBengal v. Anwar Ali Sarkar 38 , made an observationwhich is very pertinent to be quoted herein, whichreads thus:“90. I find it impossible to read theseportions of the Constitution without regardto the background out of which they arose. Icannot blot out their history and omit fromconsideration the brooding spirit of thetimes. They are not just dull, lifeless wordsstatic and hide-bound as in some mummi-fiedmanuscript, but, living flames intended togive life to a great nation and order itsbeing, tongues of dynamic fire, potent tomould the future as well as guide thepresent. The Constitution must, in myjudgment, be left elastic enough to meet fromtime to time the altering conditions of achanging world with its shifting emphasis anddiffering needs. I feel therefore that ineach case judges must look straight into theheart of things and regard the facts of eachcase concretely much as a jury would do; andyet, not quite as a jury, for we areconsidering here a matter of law and not just38AIR 1952 SC 75

Crl.A.Nos.2295-2296 of 2010 -97-one of fact: Do these “laws” which have beencalled in question offend a still greater lawbefore which even they must bow? ”(emphasis laid by this Court)POTA was repealed in 2004. Yet, the trials, itsimplementation has entailed, are continuing till date.POTA was repealed for the gross violation of humanrights it caused to the accused persons due to abuseof power by the police. This is an important aspect tobe kept in mind while deciding this case and hence, itwas pertinent to mention this in the beginning to saythat we are wary of the abuse the provisions of thisAct might bring. And we are conscious of it.Answer to point no.174. It was contended by Ms. Kamini Jaiswal, thelearned counsel for A-6 that a perusal of thestatement of PW-88 would show that not all documentspertaining to the investigation were placed before thesanctioning authority and that it was only on the

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