We may hasten to observe that it is now well settled that
the Designated Court, besides trying the case under TADA,
can also try any other offence with which the accused may be
charged at the same trial if the offences are connected with
offences under TADA. For, implicit power has been bestowed
upon the Designated Court to convict the accused for offences
under other enactments if there is legally admissible evidence
to establish those charges. We may usefully refer to the
dictum in paragraph 37 of the Constitution Bench judgment in
Prakash Kumar alias Prakash Bhutto (supra), which reads
thus:
“37. The legislative intendment underlying Sections 12(1)
and (2) is clearly discernible, to empower the Designated
Court to try and convict the accused for offences committed
under any other law along with offences committed under
the Act, if the offence is connected with such other offence.
The language “if the offence is connected with such other
offence” employed in Section 12(1) of the Act has great
significance. The necessary corollary is that once the
other offence is connected with the offence under TADA
and if the accused is charged under the Code and tried
together in the same trial, the Designated Court is
empowered to convict the accused for the offence under
any other law, notwithstanding the fact that no offence
under TADA is made out. This could be the only
intendment of the legislature. To hold otherwise, would
amount to rewrite or recast legislation and read something
into it which is not there.”
(emphasis supplied)
This exposition has been applied by a Two Judge Bench in a
recent decision in Ashrafkhan alias Babu Munnekhan
Pathan & Anr. Vs. State of Gujarat 10 (2012) 11 SCC 606, as is evident from
paragraph 41, which reads thus:
“41. We have held the conviction of the accused to have
been vitiated on account of noncompliance
with Section
20A( 1) of TADA and thus, it may be permissible in law to
maintain the conviction under the Arms Act and the
Explosive Substances Act but that shall only be possible
when there are legally admissible evidence to establish
those charges. The Designated Court has only relied on the
confessions recorded under TADA to convict the accused for
offences under the Arms Act and the Explosive Substances
Act. In view of our finding that their conviction is
vitiated on account of noncompliance
of the mandatory
requirement of prior approval under Section 20A(
1) of
TADA, the confessions recorded cannot be looked into to
establish the guilt under the aforesaid Acts. Hence, the
conviction of the accused under Sections 7 and 25(1A)
of
the Arms Act and Sections 4, 5 and 6 of the Explosive
Substances Act cannot also be allowed to stand.”
(emphasis supplied)
24. Even in the present case, it is noticed that the
prosecution has essentially relied upon the confessional
statement of the accused recorded under the provisions of
TADA. That will be of no avail and certainly not admissible
against the accused in the trial for offences under other
enactments, especially when the Designated Court could not
have taken cognizance of the offence under TADA for lack of a
valid sanction.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 13591361
OF 2007
The State of Gujarat Vs Anwar Osman Sumbhaniya
A.M. Khanwilkar, J.
Dated:February 27, 2019.
1. The instant appeals filed under Section 19 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (for
short “TADA”), are against the final judgment and order dated
12th January, 2007 passed by the Designated Judge,
Jamnagar in Special TADA Case Nos.3/1994, 3/1997 and
1/2005, whereby the respondents have been acquitted after
finding them not guilty of the stated offences.
2
2. Separate chargesheets
were filed against the
respondents for offences punishable under Sections 121,
121A, 122 read with Section 34 of the Indian Penal Code,
Sections 3, 4 and 5 of TADA, Sections 25(1)(A)(D), 25(1AA),
25(1B)(A B F G), 27(1), 29(A) of the Arms Act, 1959 (for short
“1959 Act”), Section 20 of the Indian Telegraph Act, 1885 (for
short “1885 Act”) and Section 6(1A)
of the Indian Wireless
Telegraphy Act, 1933 (for short “1933 Act”). The respondents
were tried for the aforesaid offences in Special TADA Case
Nos.3/1994, 3/1997 and 1/2005, before the Special Court at
Jamnagar, which was then transferred to the Court of
Designated Judge at Jamnagar. Since all the three chargesheets
were in connection with one and the same offence and
to obviate repetition of evidence, consolidated evidence was
recorded for all the cases in Special TADA Case No.3/1994.
3. The complaint (Exh.27A) was lodged by one Bakul
Vithalbhai Jani (PW6),
on the basis of information that
respondent No.1 – Anwar Osman Subhaniya, resident of
3
Salaya Barlovas, Hussaini Chowk “Hasmi Manzil”, was in
illegal possession of foreign made fire arms weapons at his
residential house. The raiding party, after obtaining prior
approval (Exh.30) of Pramod Kumar Jha, DSP (PW15),
proceeded along with search warrant, and upon search of the
residential house of respondent No.1, conducted by the raiding
party, following items were seized:
(i) One – Foreign made carbine gun with magazine
valued Rs.2 lakhs.
(ii) One – Foreign made revolver with eight chambers
worth Rs.60,000/.
(iii) One – Foreign made revolver with six chambers
worth Rs.45,000/.
(iv) One – Transmitter walkytalky
set worth Rs. 1 lakh.
(v) 52 live cartridges of 9 mm stain guns.
(vi) 4 live cartridges of revolvers.
4. Immediately after recovery of arms and ammunition,
after seeking prior oral approval of PW6,
FIR was lodged vide
CR21/
93 for the stated offences only against respondent No.1
and he came to be arrested on 18th June, 1993. Later, on 21st
June, 1994, a chargesheet
was filed against respondent No.1
and the case was registered as Special TADA Case No.3/1994.
Along with the chargesheet,
sanction for prosecution (Exh.84)
4
was obtained from A.K. Tandon, Director General of Police
(PW14)
under Section 20A(
2) of TADA on 39/
1193.
Respondent No.2 Junas
Hazi Ibrahim came to be arrested on
20th March, 1997 and his confessional statement under
Section 15 of TADA was recorded on 25th March, 1997, when
he stated that he sold one carbine gun to respondent No.1.
Chargesheet
was filed against respondent No.2 on 6th April,
1997 whereafter a case was registered against him as Special
TADA Case No.3/1997 before the Designated Court,
Jamnagar. Respondent No.3 came to be arrested in 2005 in
connection with another CR No.43/1994 registered under
Sections 3, 4 & 5 of TADA by the B. Division Police Station on
10th December, 2004. A transfer warrant was obtained from
the TADA Court, Jamnagar for arresting and taking custody of
the respondent No.3 before his arrest. After completion of
investigation against respondent No.3, separate chargesheet
came to be filed on 29th April, 2005 after obtaining prior
sanction (Exh.57) under Section 20A(
2) of TADA from A.K.
Bhargav dated 1st April, 2005.
5
5. As aforesaid, all the three separate chargesheets
were
registered as three Special TADA cases, being Special TADA
Case Nos.3/1994, 3/1997 and 1/2005 before the Designated
Court at Jamnagar. The Designated Court framed charges
against the respondents on 12th September, 2005 to which
they pleaded not guilty and wanted to be tried for the alleged
offence. The prosecution examined 15 prosecution witnesses
and their statements were recorded along with documentary
evidence in support of the case. The respondents did not
produce any defence witness. The Designated Court then
proceeded to consider the rival arguments and framed the
following issues for consideration:
“1) Whether prosecution proves beyond reasonable doubt
that accused have with a view to do the war against India
Government, by aiding and abutting each other, in
furtherance of their common intention, to prepare in
advance to collect the weapons by previously arranging
conspiracy and as a part of that conspiracy, before any time
prior to 18693
at 10:00 hrs. brought subMachinegun,
Revolver and cartridges and walky talky set for non
telephonic message and kept it at the residential house of
accused No.1 Anwar Osman Subhaniya?
2) Whether prosecution proves beyond reasonable doubt
that accused have in connection with the same offence, in
furtherance of their common intention as shown in issue
No.1, with a view in furtherance of their common intention,
aided and abutted each other, before any time prior to 18693,
found from the possession of accused No.1 Anwar
6
Osman Sumbhaniya from his residential house, one Egypt
made self operating sub machine gun and 0.22 Caliber
Germany made revolver and 0.8 caliber American made
revolver and stain Gun and revolver cartridges and
transmeter walky talky set?
3) Whether prosecution proves beyond reasonable doubt,
that in connection with the same offence during 2145
to 2345
on 29793
at Salaya port road from the STD PCO from
possession of accused No.1, wireless set without licence was
found out?
4) Whether prosecution proves beyond reasonable doubt
that in connection with the same offence, accused brought
the above muddamal sub machine gun, revolver and
cartridges without licence from abroad and where found in
the conscious possession of accused No.1?
5) Whether prosecution proves beyond reasonable doubt
that in connection with same offence, accused brought
Japan made two transmeter, wireless
set, before 18693
at
any time from foreign in the above muddamal in India, with
common and criminal intention without licence and done
exchange mutually and where foundout in the conscious
possession of accused No.1 from STD PCO and from the
residential house?
6) Out of accused who can be convicted and for what
offence?
7) What order?”
6. Even though no issue regarding validity of prior approval
before registration of FIR under Section 20A(
1) or the validity
of prior sanction under Section 20A(
2) of TADA before taking
cognizance was framed, the Designated Court at the outset
proceeded to answer the said issues and opined that neither
7
prior approval under Section 20A(
1) of TADA nor prior
sanction under Section 20A(
2) of TADA was in conformity
with the mandate of the stated provisions. So holding, the
Designated Court held that the respondents could not be
proceeded further for the alleged offences. Despite the
Designated Court being fully convinced about the illegality of
“prior approval” and “prior sanction”, it also adverted to the
evidence on record and observed that there was no legal
evidence to record a finding of guilt against the respondents.
For, the confessional statement recorded purportedly under
the provisions of TADA, cannot be looked at. The same would
not be admissible once the prosecution fails on account of lack
of a valid sanction to prosecute under TADA. Further, the
search and seizure procedure was also replete with illegalities.
The Designed Court, therefore, acquitted the respondents,
holding them not guilty for the stated offences, and
consequently, directed immediate release of respondent
No.3/accused No.3, who was in judicial custody as undertrial
prisoner, if was not required in any other case. The bail bonds
8
of respondent Nos.1 & 2/accused Nos.1 & 2 were ordered to
be cancelled.
7. This decision of the Designated Court is the subject
matter of challenge in these appeals filed by the State.
According to the appellant, the Designated Court committed
manifest error in concluding that no valid prior approval
under Section 20A(
1) of TADA was obtained before
registration of FIR for the stated offences. This opinion,
however, was founded on a decision of this Court which is no
more a good law. It is now well settled that even the prior oral
approval can be reckoned as a valid approval within the
meaning of Section 20A(
1) of TADA, albeit supported by
contemporaneous record in that regard to be followed by a
formal written approval. As regards prior sanction accorded by
A.K. Tandon (PW14),
there was ample material on record to
substantiate that he had accorded sanction (Exh.84)
after due
consideration of the relevant aspects and it was not a case of
nonapplication
of mind. Similarly, the prior sanction (Exh.57)
accorded by A.K. Bhargav in respect of accused No.3, is
9
also backed by relevant material duly considered by him, as is
evident from the evidence of Raghuvirsinh Surubha
Chudasama, Dy.S.P. (PW13)
and Yashodhar Ramchandra
Vaidya (PW10).
The opinion of the Designated Court that even
this sanction order suffers from the vice of nonapplication
of
mind is manifestly wrong. It is alternatively contended that
even if the Designated Court was right in concluding that the
prosecution of the respondents suffered due to lack of valid
approval or valid sanction, it should not have dilated on other
aspects of the case on merits as
the only option left to the
Designated Court in such a situation would be to transfer the
case to a regular court under Section 18 of TADA. At any rate,
the Designated Court could not have acquitted the
respondents/accused. Instead, it could have given opportunity
to the prosecution to launch prosecution afresh with a valid
sanction as per the dictum in paragraph 20 of the decision of
this Court in Rambhai Nathabhai Gadhvi & Ors. Vs. State
of Gujarat1. If the prosecution was not inclined to avail of that
1 (1997) 7 SCC 744
10
option, the Designated Court as aforesaid, should have
exercised powers under Section 18 of TADA to transfer the
case to a regular court having jurisdiction under the Code for
trial of other offences. To buttress the above submission,
reliance is placed on the decisions of this Court in Ahmad
Umar Saeed Sheikh Vs. State of U.P.2, Harpal Singh Vs.
State of Punjab,3 and Prakash Kumar alias Prakash
Bhutto Vs. State of Gujarat4.
8. The respondents, on the other hand, have supported the
final opinion of the Designated Court to acquit them. As
regards the validity of prior approval under Section 20A(
1) of
TADA, founded on oral approval followed by written approval,
learned counsel for the respondents, in all fairness, submitted
that the threeJudge
Bench of this Court in State of A.P. Vs.
A. Sathyanarayana and Ors.5 holds the field. Resultantly, it
may not be necessary for this Court to probe into that
question and instead may proceed on the basis that a valid
2 (1996) 11 SCC 61
3 (2007) 13 SCC 387
4 (2005) 2 SCC 409
5 (2001) 10 SCC 597
11
prior approval was accorded in the present case before
registration of FIR for offences punishable under TADA.
However, he contended that no fault can be found with the
conclusion reached by the Designated Court that the prior
sanction accorded in the present case under Section 20A(
2) of
TADA suffers from the vice of nonapplication
of mind and that
finding recorded by the Trial Court is a possible view which
has been expressed after due analysis of the evidence on
record in that regard. He has placed reliance on the decision of
this Court in Gadhvi’s case (supra) where a similar sanction
order issued by A.K. Tandon (PW14)
in another TADA case,
registered at Khambala Police Station under his jurisdiction,
has been deprecated. The Court expressed strong disapproval
regarding the approach of the officer [A.K. Tandon (PW14)],
being reflective of scanty application of mind in respect of vital
and crucial aspects before according sanction under Section
20A(
2) of TADA. It is contended that even in that case, the
sanctioning authority (A.K. Tandon) had merely adverted to
the First Information Report and the office note sent by the
12
Superintendent of Police seeking permission or sanction.
Further, the sanction order had noted that permission to add
Sections 3, 4 or 5 of TADA was being given, as is the noting
made in the subject sanction order (Exh.84).
Such noting, it
has been held suffers from the vice of nonapplication
of mind,
a casual approach and completely in disregard of the mandate
of the law requiring prior sanction of the competent authority.
For, it plainly overlooks the marked distinction between grant
of approval for adding sections of TADA at the stage of
registration of FIR and, on the other hand, according sanction
to prosecute the accused under the provisions of TADA before
laying the chargesheet
in the Designated Court qua them.
Learned counsel submits that the same logic would apply to
the subject sanction order dated 3/91193
(Exh. 84). The
evidence of PW14
or PW15
or for that matter, other
documentary evidence Exh.82 and Exh.83, will be of no avail
to justify the validity of Exh.84. As regards the sanction
accorded to prosecute accused No.3, dated 1st April, 2005
(Exh. 57), the same also, exfacie,
suffers from the vice of non13
application of mind. For, the evidence gathered during the
investigation against accused No.3, at best, indicated that two
walkytalkies
were recovered from him. The sanctioning
authority ought to have reckoned this fact, which by no
standard would constitute an offence under the TADA.
Inasmuch as mere possession of such walkytalkies
per se
would not be an offence under TADA. The sanctioning
authority has palpably failed to evaluate the materials
gathered during the investigations before recording its
satisfaction on the factum whether any terrorist act has been
committed by the named person within the meaning TADA or
for that matter being a member of the terrorist gang or party to
the conspiracy or abetment or facilitating the commission of a
terrorist act. In substance, learned counsel for the
respondents submits that no interference is warranted with
the finding of fact recorded by the Designated Court that the
sanction orders issued by the competent authority (Exh.84
and Exh. 57) suffer from the vice of nonapplication
of mind.
To buttress this submission, learned counsel for the
14
respondents has placed reliance on State of Bihar & Anr.
Vs. P.P. Sharma & Anr.6, Rambhai Nathabhai Gadhvi
(supra), Mohd. Iqbal M. Shaikh & Ors. Vs. State of
Maharashtra7, State (NCT of Delhi) Vs. Navjot Sandhu 8,
Seeni Nainar Mohammed Vs. State 9.
9. We have heard Ms. Pinky Behra, learned counsel
appearing for the State of Gujarat and Mr. A. Sirajudeen,
learned senior counsel appearing for the respondents.
10. First we intend to deal with the issue of validity of the
sanction order dated 3/9`
1193
(Exh.84). This document is
the outcome of the letter dated 9th August, 1993 sent by
Pramod Kumar Jha, DSP (PW15),
to the Director General of
Police for grant of sanction under Section 20A(
2) of TADA.
The said letter reads thus:
“Exhibit – 82
“No. RB/D/121/1993/1810
THE OFFICE OF DISTRICT SUPREINTENDENT OF POLICE
JAMNAGAR
DATED 09/08/1993
To,
The Director General of police
And Chief of Police
6 1992 Supp. (1) SCC 222
7 (1998) 4 SCC 494
8 (2005) 11 SCC 600
9 (2017) 13 SCC 685
15
Gujarat State, Ahmedabad
Subject: With regard to obtaining sanction under section
20A(1) of the TADA under Salaya Police Station Crime I
21/93.
With it is hereby stated with regard to the above mentioned
subject that,
The Salaya Police station Crime I 21/93 under section 121,
121A, 122, 34 of the IPC, section 26(1) (AD) (1AA),
25(1B)
A,B,C,F,G and 27 (1) 29(A) of the Arms act, section 6(1)A of
the Wireless Telegraph act, section 20 of the Telegraph act
and section 3, 4 and 5 of the TADA act is committed on
18/06/1993 at 10/00 hours at Salaya Barlovas Hashmi
Manzil. As for the crime, the PSI Mr. B. V. Jani, LCB
Jamnagar filed complaint on 18/06/1993 at 13/30 hours
against accused Anwar Osman Vadher Musalman resident of
Salaya Barlovas Hashmi Manzil for keeping in possession
weapons unlawfully. The copy of FIR is annexed hereby.
The accused Anwar Osman Vadher resident of Salaya kept in
his possession unlawfully and without license the 1) Foreign
Carbon Stand gun Magazine worth Rs.2 lacs, 2) Foreign
made revolver with eight cylinders in chamber worth Rs.60
thousand, 3) one foreign made revolver with six cylinders in
chamber having worth Rs. 45 thousand, 4) one transmitter
walky talky set foreign made worth Rs.1 lakh, 5) stand gun
live cartridges nos. 52 nos. worth Rs.1040, 6) Revolver live
cartridges nos. 4 worth Rs.80/and
therefore he was
arrested on 19/00 of 18/06/1993. He was produced before
the honourable court and a remand was sought, thereby a
remand till 01/07/1993 was granted and during the
remand, upon further investigation, it was divulged by him
that the weapons were obtained from 1) Mamummiya
Panjumiya resident of Porbandar, 2) Junus Ibrahim Gajwa
Vadher resident of Salaya, 3) Adam Jusab Bhaya Vadher
resident of Salaya since deceased. Upon investigating as to
the nos. 1 and 2, it was found that they had fled and thus
the further investigation is held so as to arrest these
persons. Upon completion of the remand period of accused
Anwar Osman Patel, the further remand was sought, but it
was rejected by the court and thus the accused was sent to
the court custody. As for the above mentioned offence, the
sanction is received by letter no. VIR/ATK/1993/3717 dated
16
06/07/1993 from the side of the home department, for the
purpose of application of TADA. Therefore it is submitted
that relevant order be passed for sanction of section 20A(2)
of TADA.
Sd/illegible
P K Za
District Superintendent of Police
Jamnagar”
11. On the basis of this communication, Office Note (Exh. 83)
was placed for consideration before A.K. Tandon, DGP (PW14).
The said Office Note (Exh.83) reads thus:
“Exhibit 83 (Office note)
“Salaya Police station Crime I 21/93 under section 25(A),
25(1)AA B A, Customs act section 135 and section 3, 4 and 5
of the TADA act.
From the house possessed and used by the accused Anwar
Osman Vadher Musalman, weapons without any license
being Foreign Carbon Stand gun Magazine worth Rs.2 lacs,
Foreign made revolver with eight cylinders in chamber worth
Rs.60 thousand, one foreign made revolver with six cylinders
in chamber having worth Rs.45 thousand, one transmitter
walky talky set foreign made worth Rs.1 lakh, stand gun live
cartridges nos. 52 nos. worth Rs. 1040 and Revolver live
cartridges nos. 4 worth Rs. 80/and
upon investigation from
the accused, he stated that, the weapons were obtained from
1) Mamummiya Panjumiya resident of Porbandar, 2) Junus
Ibrahim Gajwa Vadher resident of Salaya, 3) Adam Jusab
Bhaya Vadher resident of Salaya (since deceased). Upon
investigating as to the nos. 1 and 2, it was found that they
had fled and thus the further investigation for these two
persons.
Placed with regards:
17
It is a request to taken into perusal the order passed by the
honourable Inspector General of Police at page P19/
NS.
2. In the Salaya police station Crime I 21/93, Jamnagar
City B Division Police station Crime 151/93, Panchnoshi B
Division police station Crime I 57/93 and Bharwad Police
Station Crime I 43/93, the S1 to S8 documents are placed
on record for signature, in reference to the order passed by
the Inspector General of Police.
Kindly sign the same.
Orders giving permission for applying TADA as placed at S1
TO S8, which may please be illegible.
Sd/1/
11/1993”
12. Indeed, P.K. Jha (PW15)
in his evidence has stated that
after sending the letter (Exh. 82), the DGP Mr. A.K. Tandon
(PW14)
had summoned him with papers of the case for
discussion. Further, Mr. Tandon had personally discussed
about the case with him. During that interaction, P.K. Jha had
apprised the DGP about the details of the investigation and
other details as to why it was necessary to apply the
provisions of TADA and file the chargesheet
in that regard.
Pramod Kumar Jha, DSP (PW15)
has been crossexamined
by
accused Nos.1 & 2. In the crossexamination,
he stood by his
version that he had gone to Director General of Police (PW14)
18
at Padadhari and had also gone to Ahmedabad but was unable
to give the dates and time of the said meetings. He asserted
that he had made notes about the meeting in his records and
in his personal diary which is called Estatement.
However,
the fact remains that the purported sanction order dated
3/91193
(Exh.84) makes reference only to have taken note of
the FIR and the proposal received from DSP, Jamnagar. We
may assume that the two officers – Pramod Kumar Jha (PW15)
and A.K. Tandon, DGP (PW14)
had interacted regarding
the nature of investigation before issuing the purported
sanction order dated 3/91193
(Exh.84). Even though A.K.
Tandon, DGP (PW14)
had asserted that he had fully applied
his mind before issuing the purported sanction order under
Section 20A(
2) of TADA, that order, however, is suggestive of
a casual approach of A.K. Tandon, DGP (PW14).
The same
reads thus:
“AnnexureP/
5
Mark 80/5 Exh.84.
No.J.1/1909/1/Salaya/21
93/4327.
Office of DGP and Chief Police
Officer, Gujarat State, Ahmedabad
39/
1193.
19
Ref:1.
FIR of Salaya Police Stn. CR No.21/93 u/s. 122 of IP
Code and u/s. 25(1)(A) 25(1AA) 25 (AB,AF) 25(1)(B)(A)(F) of
Arms Act and u/s. 6(1)A of Wireless Telegraph Act and u/s.
20 of Telegraph Act and u/s. 135 of Customs Act and u/s.
3,4,5 of TADA Act.
2.
Proposal No. DSP, Jamnagar, RBD121Proved
in
1993/1810 dtd. 9893
by DSP, Jamnagar.
Deposition of witness No.14
Mark 80/5 be exhibited at exh.84 in spl. case No.3/94.
Sd/Desi.
Judge, 4706.
Jamnagar.
After carefully reading and considering the proposal for
approval to apply TADA section vide letter No. RBD/121/
1993/1810 dtd. 9893
by DSP Jamnagar and FIR of
Jamnagar Dist. Salaya Police Station CR No.21/93 u/s. 122
of IP Code and u/s. 25(1)(A) of Arms and u/s. 3,4,5 of TADA
act, I A.K. Tandon, DGP and Chief Police Officer Gujarat
State, Ahmedabad do hereby approval/sanctioned to apply
TADA act 3,4,5 under amended provisions of amended TADA
act 1987 (Amendment 1993) u/s. 20(1)(2).
Sd/ A.K. Tandon
DGP and Chief Police
Officer, Guj. State,
Ahmedabad.
To,
DSP, Jamnagar Dists. Jamnagar
Copy to: Chief Special police officer/Dy. Chief Police Officer,
Rajkot Division, Rajkot, Addl. DGP Shri, CID, Crime and
Range Gujarat State, Ahmedabad.
Sd/ Pramodkumar
Asst. Chief Police Officer, Crime.
Endorsement for true copy
Copy applied for by Dy.S.P. Khambhalia on 13407
And copy ready on 23407
and copy delivered on
25507.
Sd/ Registrar
20
True copy.
Sd/ Registrar.
Dist. & Sessions Court, Jam.
Translated from guj.
Into eng. Version by me.”
13. On a fair reading of this document it is evident that the
author of the document A.K. Tandon, DGP (PW14),
adverted
only to the FIR and the proposal received from DSP,
Jamnagar. The understanding of PW14
was that the proposal
received from DSP, Jamnagar (PW15)
was for granting
approval to apply provisions of TADA and the said proposal
was accepted. The respondents have rightly relied on the
dictum in Gadhvi’s case (supra), where a similar purported
sanction under Section 20A(
2) of TADA issued by the very
same officer A.K. Tandon, DGP (PW14),
in respect of some
other TADA case, came up for consideration. The wording of
sanction order considered by this Court is similar to the one
under consideration. In paragraph 9 of the reported judgment,
the said sanction order has been reproduced, which reads
thus:
21
“9. In this case the prosecution relies on Ext. 63, an order
issued by the Director General of Police, Ahmedabad, on 391993,
as the sanction under Section 20A(
2) of TADA. We are
reproducing Ext. 63 below:
“Sr. No. J1/
1909/1/Khambalia 55/93
Director General of Police, Dated 391993
Gujarat State,
Ahmedabad.
Perused: (1) FIR in respect of offence Registered No.
55/93 at Khambalia Police Station 25(1)(b)(a)(b) of Arms
Act and Sections 3, 4 and 5 of the TADA.
(2) Application sent by DSP Jamnagar vide his letter No.
RB/D/122/1993/1820 dated 981993.
Having considered the FIR in respect of offence
Registered No. 55/93 at Khambalia Police Station
District Jamnagar under Section 25(1)(b)(a)(b) of Arms
Act and Sections 3, 4 and 5 of TADA and letter No.
RB/D/122/1993/1820 of DSP dated 981993
seeking
permission to apply the provisions of TADA carefully, I
A.K. Tandon, Director General of Police, Gujarat State,
Ahmedabad under the powers conferred under the
amended provisions of TADA (1993) Section 20A(
2) give
permission to add Sections 3, 4 and 5 of TADA.
A.K. Tandon
Director General of Police
Ahmedabad
Gujarat”
While analyzing the said sanction in paragraph 10, this Court
observed thus:
“10. Apparently Ext. 63 makes reference only to two
documents which alone were available for the Director
General of Police to consider whether sanction should be
accorded or not. One is the FIR in this case and the other is
the letter sent by the Superintendent seeking permission or
sanction. No doubt in that letter to the Director General of
Police the Superintendent of Police had narrated the facts of
the case. But we may observe that he did not send any other
document relating to the investigation or copy thereof along
with the application. Nor did the Director General of Police
22
call for any document for his perusal. All that the DGP had
before him to consider the question of granting sanction to
prosecute were the copy of the FIR and the application
containing some skeleton facts. There is nothing on record to
show that the Director General of Police called the
Superintendent of Police at least for a discussion with him.”
And again in paragraphs 14 and 15 of the judgment, this
Court observed:
“14. Apart from what we have noticed above, the nonapplication
of mind by the Director General of Police, Gujarat
State, is even otherwise writ large in this case. A perusal of
Ext. 63 (supra) shows that the Director General of Police in
fact did not grant any sanction for the prosecution of the
appellants. Last part of the order reads: ‘I A.K. Tandon,
Director General of Police, Gujarat State, Ahmedabad under
the powers conferred under the amended provisions of TADA
(1993) Section 20A(
2) give permission to add Sections 3, 4
and 5 of TADA.’ Thus, what the Director General of Police did
was to grant permission “to add Sections 3, 4 and 5 of TADA”
and not any sanction to prosecute the appellants. It is
pertinent to note here that the permission to add Sections 3,
4 and 5 of TADA had been granted by the Home Secretary,
the competent authority, much earlier and no such
permission was sought for from the Director General of
Police by the DSP. The Designated Court thus, failed to
notice that Ext. 63 was not an order of sanction but an
unnecessary permission of the Director General of Police to
add Sections 3, 4 and 5 of TADA. The Director General of
Police, apparently, acted in a very casual manner and
instead of discharging his statutory obligations under
Section 20A(
2) to grant (or not to grant) sanction for
prosecution proceeded to deal with the request of the DSP
23
contained in his letter dated 981993,
as if it was a letter
seeking permission to apply the provisions of TADA. The
exercise exhibits that the Director General of Police did not
even read, let alone consider “carefully”, the FIR and the
letter of the DSP dated 981983.
We cannot but express our
serious concern at this casual approach of the Director
General of Police. On a plain reading of Ext. 63, therefore, we
must hold that it is not an order of sanction to prosecute the
appellants as required by Section 20A(
2) of the Act.”
15. In view of the aforesaid legal and factual position we
have no doubt that sanction relied on by the prosecution in
this case was not accorded by the Director General of Police
in the manner required by law. Ext. 63 is not the result of a
serious consideration and the document reflects scanty
application of the mind of the sanctioning authority into vital
and crucial aspects concerning the matter. It vitiates
sanction and hence Ext. 63 cannot be treated as sanction
under Section 20A(
2) of TADA.”
14. The subject sanction (Exh.84) as aforesaid is issued by
the very same officer and presumably prepared on the same
date 3.11.93, but signed and issued on 9th November, 1993.
Even in the present case, reference is only to two documents
reckoned by PW14
before issuing the sanction. To wit, the FIR
and the letter or proposal sent by the DSP, Jamnagar. In the
evidence, although it is asserted that the DSP (PW15)
was
called for discussion and who, in turn, apprised him of all the
24
relevant details of the investigation, but that fact is not
reflected in any contemporaneous record. No such record has
been produced by the prosecution. What is significant is the
wording of the subject sanction (Exh.84). When juxtaposed
with the sanction in the reported case (Exh.63 reproduced in
paragraph 9 of the said judgment), it is obvious that even in
the present case, what has been noted in Exh.84 is the
permission to apply Sections 3, 4 and 5 of TADA. In
paragraphs 14 and 15 of the reported decision extracted
above, this Court opined that such noting was itself indicative
of the fact that it was not a sanction to prosecute the accused
but at best giving permission to apply the provisions of TADA.
Such a sanction cannot be considered as a valid sanction,
much less issued after due application of mind. We wish to
adopt the same logic, which applies proprio vigore to the fact
situation of the present case.
15. In other words, the purported sanction dated 3/91193
(Exh.84), granted by PW14
is not a valid sanction within the
meaning of Section 20A(
2) of TADA. It must, therefore, follow
25
that the Designated Court could not have taken cognizance of
the offences punishable under TADA for want of a valid
sanction.
16. Reverting to the sanction dated 1st April, 2005 (Exh.57),
concerning accused No.3/respondent No.3, issued under the
signature of A.K. Bhargav (who is not examined) read with the
evidence of Yashodhar Ramchandra Vaidya (PW10),
it may
appear that it has been issued after due consideration of all
the relevant material, including police papers. The evidence of
Yashodhar Ramchandra Vaidya (PW10)
indicates that a Yadi
was received on 27th March, 2005 in the Office of Director
General of Police and Chief Police Officer, where the witness
was working as ASI. The same is dated 11th March, 2005
(Exh.55), issued under the signature of R.S. Chudasama (PW13).
It read thus:
“EXHIBIT – 55
OUTWARD NO.RB/741/05
Office of the Deputy Superintendent of police
Khambhaliya Division, dated 11/03/2005
To,
The Inspector General of Police
Gujarat State, Gandhinagar.
26
Subject: Sanction for filing of charge sheet against
accused Umarmiya @Mamumiya s/0 Ismailmiya s/o
Ismailmiya Panjumiya Saiyed Bukhari resident of Porbandar
under section 20 (a) (2) of the Terrorist and Disruptive
Activities (Prevention) act 1987.
The deputy superintendent of police, Khambhaliya Mr. R. S.
Chudasama, hereby submit that,
That investigation of the Salaya Police station Crime I 21/93
under section 121, 121A, 122, 34 of the IPC, section 26 (1)
(AD) (1AA),
25 (1B)
A, B, C, F, G and 27 (1) 29 (A) of the
Arms act, section 6 (1) A of the Wireless Telegraph act,
section 20 of the Telegraph act and section 3, 4 and 5 of the
TADA act, is held by me.
On 18/06/1993 at 13/30 hours at the Salaya Police Station,
on behalf of the state Mr. B. V. Jani police sub inspector
LCB Branch, Jamnagar declared complaint against Anwar
Osman SubhaniyaVagher resident of SalayaHussaini Chowk,
Hazmi Manzil and declared that that accused was arrested
with the muddamal of 1) Foreign Carbon Stand gun
Magazine worth Rs.2 lacs, 2) Foreign made revolver with
eight cylinders in chamber worth Rs. 60 thousand, 3) one
foreign made revolver with six cylinders in chamber having
worth Rs.45 thousand, 4) one transmitter walky talky set
foreign made worth Rs.1 lakh, 5) stand gun live cartridges
nos. 52 nos. worth Rs.1040, 6) Revolver live cartridge nos. 4
worth Rs.80/and
the above mentioned crime was registered
in detail.
The above mentioned accused Anwar Osman, during the
remand showed one transmitter walky talky wireless set
worth Rs. 75 thousand and during the remand he stated
that two wireless set were purchased by him from accused
Umarmiya @Mammumiya s/o Ismailmiya @PanjumiyaSaiyed
Bukhari resident of Porbandar. In this manner the name of
accused Umarmiya was declared for the crime and this
accused thereby remained absconding. As the accused
remained absconding, during the year 1994, the honourable
27
court notified the accused as absconding under section 8(3)
of the TADA act.
This particular accused Umarmiya @Mammumiya s/o
Ismailmiya @PanjumiyaSaiyed Bukhari resident of
Probandar, was arrested for the Porbandar city Kamlabaug B
Division police station Crime I 43/94 under sections 3, 4, 5,
etc. of the TADA act on 10/12/2004 and he was brought
before the Probandar Judicial First Class magistrate court
No.1. In this particular case, the transfer warrant was issued
by the Jamnagar designated court on 14/12/2004, it was
sunmitted before the Porbandar court and the accused was
brought before me after obtaining his custody by the police
sub inspector Mr. B. V. Pander on 08/02/2005. This
particular accused was arrested as per proceedings in its
presence of the panch witnesses on 08/02/2005 at 2300
hours. During the hearing, the accused was brought before
the honourable additional sessions and designated judge
Khambhaliya and a remand of days30
were sought for the
accused and therefore the honourable court approved the
remand in police custody, of the accused till 1100
hours of
14/02/2005. During the remand, the accused was inquired
from and he mentioned that, the two Walky Talky set that he
gave to Anwar Osman Subhaniya were taken by him from
his brother Abdullah Osman Subhaniya in the year 1985 for
smuggling activities. Thereafter he gave both these Walky
Talky sets to Anwar Osman Suhaniya and thereby these
details were divulged during the investigation. Upon
investigating as to Abdullah Osman Subhaniya, it came out
during the investigation that, that particular person does not
reside in Salaya and has gone to Abu Dhabhi (Foreign
nation). As for this, the further remand of 15 days was
sought for the accused but it was rejected by the court and
thereby he was taken under judicial custody.
The evidence found during the investigation against the
accused are hereby marked and provided.
Mark A Salaya police station Crime I 21/93 FIR
Mark B Panchnama for taking into custody the
28
weapons dated 18/06/1993
Mark C Discovery panchnama dated
29/06/1993 for Walky Talky shown by
the accused Anwar Osman Subhaniya
during the remand.
Mark D Total 23 statements of the police officer
and staff that were present in the
raiding party.
Mark E The statement of the accused Anwar
Osman Subhaniya dated 21/06/1993
Mark F The order passed for application of
TADA sections in the Salaya Crime I
21/93
Mark G The letter mentioning the details of case
registered against the accused
Umarmiya @Mammumiya s/o
Ismailmiya by Customs Porbandar for
smuggling silver.
Mark H The FSL certificate issued by
Ahmedabad office for the weapons taken
into custody.
Mark I The charge sheet no.19/94 registered
against the accused Anwar Osman
Subhaniya on 18/06/1994 and the
copy of the charge sheet wherein the
accused Mammumiya Panjumiya Saiyed
is shown as absconding under column
no.2.
Mark J The letter under report no.4/93 under
section 8(3)(A) of TADA act against the
accused Mammumiya Panjumiya.
Mark K The papers wherein the accused
Mammumiya Panjumiya was declared
absconding.
Mark L The transfer warrant of accused
Mammumiya Panjumiya.
Mark M The physical situation panchnama
dated 08/02/05 at the time of arrest of
accused Mammumiya Panjumiya.
Mark N Face mark register for accused
Mammumiya Panjumiya.
Mark O The explanation dated 08/02/2005 to
14/02/2005 by accused Mammumiya
Panjumiya.
29
Mark P The further statement dated 1112/
02/2005 by accused Anwar Osman
Subhaniya.
Mark Q The further statement dated 1112/
02/2005 by accused Junus Ibrahim
Gajan.
Mark R The copy of court order for application
no.88/05 filed for days30
remand
against the accused Mammumiya
Panjumiya.
Mark
S
The copy of court order for application
no.96/05 filed for days15
remand
against the accused Mammumiya
Panjumiya.
In this manner, as for the purpose of filing a charge sheet
under Section 20(A) (2) of the TADA act against the accused
Saiyed Bukhari aged 50 years, resident of Porbandar
Thakkar Plot, Sheri no.1, Jamadar Fadi, the sanction is
required and thus it is hereby submitted that the above
mentioned documents be taken into perusal and the
sanction be provided for filing a charge sheet against the
accused under section 20(A)(2) of the TADA act.
Kindly consider the above.
Sd/illegible
(R S Chudasama)
Deputy Superintendent of Police
Khambhaliya Division
Sent with regards,
Superintendent of Police, Jamnagar.”
17. This was followed by a communication sent under the
signature of Manoj Shashidhar, Superintendent of Police,
Jamnagar (not examined) dated 15th March, 2005 (Exh.56). It
read thus:
30
“Exhibit – 56
“OUTWARD NO. RB/illegible 4/2005
Office of the Superintendent of police
Jamnagar, dated 15/03/2005
To,
The Inspector General of Police
Gujarat State, Gandhinagar.
Subject: Sanction for filing of charge sheet against
accused Umarmiya @Mamumiya s/o Ismailmiya s/o
Ismilmiya Panjumiya Saiyed Bukhari resident of Probandar
under section 20(a)(2) of the Terrorist and Disruptive
Activities (Prevention) act 1987, so as to held further
proceedings against him before the honourable court.
Reference: The Deputy superintendent of police,
Khambhaliya division letter No.RB/741/05 dated
11/03/2005.
The investigation of the Salaya Police station Crime I 21/93
under section 121, 121A, 122, 34 of the IPC, section 26(1)
(AD) (1AA),
25 (1B)
A, B, C, F, G and 27 (1) 29(A) of the
Arms act, section 6 (1) A of the Wireless Telegraph act,
section 20 of the Telegraph act and section 3, 4 and 5 of the
TADA act, is held by deputy superintendent of police,
Khambhaliya Mr. R.S. Chudasama.
On 18/06/1993 at 13/30 hours at the Salaya Police Station,
on behalf of the state Mr. B. V. Jani police sub inspector
LCB Branch, Jamnagar declared complaint against Anwar
Osman Subhaniya Vagher resident of Salaya Hussaini
Chowk, Hazmi Manzil and declared that the accused was
arrested with the muddamal of 1) Foreign Carbon Stand gun
Magazine worth Rs. 2 lacs, 2) Foreign made revolver with
eight cylinders in chamber worth Rs.60 thousand, 3) one
foreign made revolver with six cylinders in chamber having
worth Rs. 45 thousand, 4) one transmitter walky talky set
foreign made worth Rs.1 lakh, 5) stand gun live cartridges
nos. 52 nos. worth Rs. 1040, 6) Revolver live cartridges nos.
31
4 worth Rs. 80/and
the above mentioned crime was
registered in detail.
The above mentioned accused Anwar Osman, during the
remand showed one transmitter walky talky wireless set
worth Rs.75 thousand and during the remand he stated that
two wireless set were purchased by him from accused
Umarmiya @Mammumiya s/o Ismailmiya @Panjumiya
Saiyed Bukhari resident of Probandar. In this manner the
name of accused Umarmiya @ Mammumiya s/o Ismailmiya
@Panjumiya Saiyed Bukhari resident of Porbandar was
declared for the crime and this accused thereby remained
absconding. As the accused remained absconding, during
the year 1994, the honourable court notified the accused as
absconding under section 8(3) of the TADA act.
The particular accused Umarmiya @ Mammumiya s/o
Ismailmiya @ Panjumiya Saiyed Bukhari resident of
Porbandar, was arrested for the Probandar city Kamlabaug B
Division police station Crime I 43/94 under Sections 3, 4, 5,
etc. of the TADA act on 10/12/2004 and he was brought
before the Probandar Judicial First Class magistrate court
no.1. In this particular case, the transfer warrant was issued
by the Jamnagar designated court on 14/12/2004, it was
submitted before the Porbandar court. The accused
Umarmiya @Mammumiya s/o Ismailmiya @Panjumiya
Saiyed Bukhari resident of Porbandar was brought before
superintendent of police, Khambhaliya division Mr. R.S.
Chudasama after obtaining his custody by the police sub
inspector Mr. B.V. Pander on 08/02/2005. This particular
accused was arrested as per proceedings in the presence of
the panch witnesses on 08/02/2005 at 2300
hours. During
the hearing, the accused was brought before the honourable
additional sessions and designated judge Khambhaliya and a
remand of days30
were sought for the accused and
therefore the honourable court approved the remand in
police custody, of the accused till 1100
hours of
14/02/2005. During the remand, the accused was inquired
from and he mentioned that, the two Walky Talky set that he
32
gave to Anwar Osman Subhaniya were taken by him from
his brother Abdullah Osman Subhaniya in the year 1985 for
smuggling activities. Thereafter he gave both these Walky
Talky sets to Anwar Osman Suhaniya during 1989/90 and
thereby these details were divulged during the investigation.
Upon investigating as to Abdullah Osman Subhaniya, it
came out during the investigation that, that particular
person does not reside in Salaya and has gone to Abu
Dhabhi (Foreign nation). As for this, the further remand of
15 days were sought for the accused Umarmiya
@Mammumiya s/o Ismailmiya @Panjumiya Saiyed Bukhari
resident of Probandar but it was rejected by the court and
thereby he was taken under judicial custody. The evidence
found during the investigation against the accused are
hereby provided as marked along with the letter submitted.
In this manner, as for the purpose of filing a charge sheet
under section 20(A) (2) of the TADA act against the accused
Umarmiya @Mammumiya s/o Ismailmiya @Panjumiya
Saiyed Bukhari aged 50 years, resident of Porbandar
Thakkar Plot, Sheri no.1, Jamadar Fadi, it is requested that
a sanction be provided.
Kindly consider the above.
Annexed:
The documents placed on record along with the letter.
Sd/illegible
(Manoj Shashidhar)
Superintendent of Police
Jamnagar
Copy sent:
Deputy Superintendent of police
Khambhaliya Division, Khambhaliya”
33
18. The purported sanction dated 1st April, 2005 (Exh.57)
was finally issued under the signature of A.K. Bhargav, IGP
(not examined). The stated sanction reads thus:
“Exh.57.
Mark 13/18
No. G1(
Crime/T1/
TADA chargesheet/approval/1239/2005
Office of DIG and Chief Police officer
Gujarat State Police Bhavan, Sector 18 Gandhinagar.. proved in
deposition of Yashodhar Ramchandra in sessions case No.3/94
mark 13/8 is given exhi. in deposition of witness No.10.
Sd/ Designated Judge, Jamnagar.
Ref:1.
Regarding giving of approval for chargesheet u/s. 20(A)(2)
of TADA act against accused Umarmiya Aliyas Mamumiya S/o
Ismailmiya Alias Panjumiya Bukshari resi. of Porbander for
offence u/s. 121, 121(A), 122, 34 of IPC and u/s. 1(AD) (1 AA)
25(1B), ABCFG and 27(1), 29(A) of Arms act and u/s. 1 of Wireless
Telegraphic act and u/s. 20 of Telegraph act and u/s. 3,4,5 of
TADA act who was arrested on Salaya CR No. 21/93.
2. Proposal for giving sanctioned for chargesheet under TADA
act letter No. RBR/1014/2005 dtd. 15305
of DSP, Jamnagar.
After
carefully considering and going through the proposal
for giving approval for chargesheet under the TADA act of the
papers and the letter No.RBR/1014/2005 dtd. 15305
of DSP,
Jamnagar and going through the FIR filed against accused
Umarmiya Mamumiya S/o. Ismailmiya alias Panjumiya Bukhari of
Porbander who is arrested for the offence u/s. 121, 121 A, 122, 34
of IPC and u/s. (1) (AD) (1AA) 25(1B) A,B,C,F,G and 27(1), 29(A) of
Arms and u/s. (1) A of Wireless telegraphic act and u/s. 20 of
Telegraph acts and under sec. 3,4,5 of TADA act in Salaya Police
station 21/93 Dist. , Jamnagar I A.K. Bhargav IG and Chief Police
officer Gujarat State Gandhinagar do hereby grant
34
approval/sanctioned under the provisions of TADA Act 1980 sec.
20(A) (2) Amended 1993 for filing chargesheet against Umarmiya
alias Mamumiya S/o. Ismailmiya Alias Panjumiya Bukhari of
Porbander in CR No.21/39 u/s. 20(A) (2) of TADA act.
Sd/ A.K. Bhargav
IGP
and Chief Police officer
Gujarat State Gandhinagar.
Inward No. 14237 office
of DSP, Jamnagar.
RB
To IO and SDPO KBL
for N/A.
Sd/Illegible
15405”
19. On a bare perusal of Exh.57, there is nothing to indicate
as to whether the sanctioning authority was conscious of the
materials gathered during investigation qua the concerned
accused (respondent No.3), which merely suggested
possession and recovery of two walkytalkies
from him. If that
is the only incriminatory material against accused
No.3/respondent No.3, the sanctioning authority ought to
have pondered over the crucial aspects including as to how
such possession would entail in commission of any offence
muchless punishable under Sections 4 or 5 of TADA. Further,
section 3 of TADA posits different offences, namely, terrorist
35
acts [Section 3(2)], being party to conspiracy or abetment or
knowingly facilitating the commission of terrorist acts [Section
3(3)], harbouring or concealing any terrorist [Section 3(4)],
being member of a terrorist gang or terrorist organization,
which is involved in terrorist acts [Section 3(5)], and to hold
any property derived or obtained from commission of any
terrorist act [Section 3(6)]. The sanctioning authority was
under a bounden duty to accord sanction, specific to offences,
from amongst the different offences under subsections
(1) to
(6) of Section 3 of TADA. Similarly, we are at a loss to know as
to how Sections 4 & 5 of TADA would apply to a case of mere
possession of walkytalkies.
Section 4 refers to disruptive
activities whereas Section 5 refers to possession of
unauthorized classified arms and ammunition. A walkytalky
is certainly not one of those classified arms and ammunition.
In our opinion, the purported sanction vide Exh.57 also
suffers from the vice of nonapplication
of mind, on this count
alone.
36
20. The necessity of obtaining prior sanction under Section
20A(
2) need not be underscored considering the draconian
provisions of TADA. In our opinion, therefore, even sanction
qua accused No.3/respondent No.3 dated 1st April, 2005
(Exh.57) does not stand the test of a valid sanction to
prosecute him for offences punishable under TADA. Indeed,
the prosecution has relied on the evidence of PW10
and PW13.
That, in our opinion, at best, would suggest that all the
relevant papers gathered during the investigation were placed
for consideration before the sanctioning authority. The fact
remains that Exh.57 issued under the signature of A.K.
Bhargav, IGP, makes no attempt to even remotely indicate as
to why sanction to prosecution for offences punishable under
Sections 3, 4 or 5 of TADA has been accorded qua accused
No.3/respondent No.3 merely on the basis of possession and
recovery of two walkytalkies
from him. Further, he has not
been examined by the prosecution which also could have
thrown light on that crucial aspect. Therefore, we have no
hesitation in concluding that the sanction dated 1st April, 2005
37
(Exh.57), is not a valid sanction qua accused No.3/respondent
No.3.
21. We are conscious of the fact that the Designated Court
did not frame any issue regarding validity of prior approval
under Section 20A(
1) or prior sanction under Section 20A(
2).
As the question of prior approval or prior sanction goes to the
root of the matter and is sine qua non for a valid prosecution
concerning TADA offences and including the jurisdiction of the
Designated Court, no fault can be found with the Designated
Court for having answered that issue at the outset.
22. The next question is whether the Designated Court could
have had convicted the respondents for offences punishable
under other enactments (other than TADA). Even though the
Designated Court, in paragraph 17 of the impugned judgment,
took note of the fact that the learned APP had not alternatively
argued this point, it went on to analyse the efficacy of the
evidence on record in reference to offences under other
enactments namely, IPC, Arms Act, Indian Telegraph Act,
Indian Wireless and Telegraphy Act. It noted that the fulcrum
38
of the prosecution case was founded on the confessional
statement of the accused, which came to be recorded under
the provisions of TADA. It took the view that since the accused
cannot be proceeded for TADA offences for lack of a valid
sanction, that confessional statement will be of no avail and
cannot be looked at in reference to charges for offences under
other enactments (not being admissible) muchless to record a
finding of guilt against the accused for offences under the
other enactments. It also found that the evidence regarding
search and recovery was replete with fatal deficiencies and
was insufficient to establish the complicity of the respondents
in the commission of offences under the other enactments.
Thus, it held that the accused deserved to be acquitted.
However, relying on the observations in paragraphs 17 and 18
of Gadhvi’s case (supra), it erroneously opined that the
Designated Court had no independent power to try any other
offence, as valid sanction under Section 20A
(2) was not in
place.
23. We may hasten to observe that it is now well settled that
the Designated Court, besides trying the case under TADA,
can also try any other offence with which the accused may be
charged at the same trial if the offences are connected with
offences under TADA. For, implicit power has been bestowed
upon the Designated Court to convict the accused for offences
under other enactments if there is legally admissible evidence
to establish those charges. We may usefully refer to the
dictum in paragraph 37 of the Constitution Bench judgment in
Prakash Kumar alias Prakash Bhutto (supra), which reads
thus:
“37. The legislative intendment underlying Sections 12(1)
and (2) is clearly discernible, to empower the Designated
Court to try and convict the accused for offences committed
under any other law along with offences committed under
the Act, if the offence is connected with such other offence.
The language “if the offence is connected with such other
offence” employed in Section 12(1) of the Act has great
significance. The necessary corollary is that once the
other offence is connected with the offence under TADA
and if the accused is charged under the Code and tried
together in the same trial, the Designated Court is
empowered to convict the accused for the offence under
any other law, notwithstanding the fact that no offence
under TADA is made out. This could be the only
intendment of the legislature. To hold otherwise, would
amount to rewrite or recast legislation and read something
into it which is not there.”
(emphasis supplied)
This exposition has been applied by a Two Judge Bench in a
recent decision in Ashrafkhan alias Babu Munnekhan
Pathan & Anr. Vs. State of Gujarat 10 (2012) 11 SCC 606, as is evident from
paragraph 41, which reads thus:
“41. We have held the conviction of the accused to have
been vitiated on account of noncompliance
with Section
20A( 1) of TADA and thus, it may be permissible in law to
maintain the conviction under the Arms Act and the
Explosive Substances Act but that shall only be possible
when there are legally admissible evidence to establish
those charges. The Designated Court has only relied on the
confessions recorded under TADA to convict the accused for
offences under the Arms Act and the Explosive Substances
Act. In view of our finding that their conviction is
vitiated on account of noncompliance
of the mandatory
requirement of prior approval under Section 20A(
1) of
TADA, the confessions recorded cannot be looked into to
establish the guilt under the aforesaid Acts. Hence, the
conviction of the accused under Sections 7 and 25(1A)
of
the Arms Act and Sections 4, 5 and 6 of the Explosive
Substances Act cannot also be allowed to stand.”
(emphasis supplied)
24. Even in the present case, it is noticed that the
prosecution has essentially relied upon the confessional
statement of the accused recorded under the provisions of
TADA. That will be of no avail and certainly not admissible
against the accused in the trial for offences under other
enactments, especially when the Designated Court could not
have taken cognizance of the offence under TADA for lack of a
valid sanction. Additionally, in the present case, the evidence
produced by the prosecution regarding search and seizure is
replete with fatal deficiencies. We do not wish to deviate from
the view taken by the Designated Court that there was no
legally admissible evidence to establish the charges against the
respondents regarding offences under other enactments (other
than TADA).
25. Having said this, it must follow that the conclusion
reached by the Designated Court, that the respondents are not
guilty of the offences for which they were charged and tried,
needs no interference for the reasons mentioned hitherto.
26. In view of the above, the appeals must fail and are
dismissed.
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Ajay Rastogi)
New Delhi;
February 27, 2019.
Print Page
the Designated Court, besides trying the case under TADA,
can also try any other offence with which the accused may be
charged at the same trial if the offences are connected with
offences under TADA. For, implicit power has been bestowed
upon the Designated Court to convict the accused for offences
under other enactments if there is legally admissible evidence
to establish those charges. We may usefully refer to the
dictum in paragraph 37 of the Constitution Bench judgment in
Prakash Kumar alias Prakash Bhutto (supra), which reads
thus:
“37. The legislative intendment underlying Sections 12(1)
and (2) is clearly discernible, to empower the Designated
Court to try and convict the accused for offences committed
under any other law along with offences committed under
the Act, if the offence is connected with such other offence.
The language “if the offence is connected with such other
offence” employed in Section 12(1) of the Act has great
significance. The necessary corollary is that once the
other offence is connected with the offence under TADA
and if the accused is charged under the Code and tried
together in the same trial, the Designated Court is
empowered to convict the accused for the offence under
any other law, notwithstanding the fact that no offence
under TADA is made out. This could be the only
intendment of the legislature. To hold otherwise, would
amount to rewrite or recast legislation and read something
into it which is not there.”
(emphasis supplied)
This exposition has been applied by a Two Judge Bench in a
recent decision in Ashrafkhan alias Babu Munnekhan
Pathan & Anr. Vs. State of Gujarat 10 (2012) 11 SCC 606, as is evident from
paragraph 41, which reads thus:
“41. We have held the conviction of the accused to have
been vitiated on account of noncompliance
with Section
20A( 1) of TADA and thus, it may be permissible in law to
maintain the conviction under the Arms Act and the
Explosive Substances Act but that shall only be possible
when there are legally admissible evidence to establish
those charges. The Designated Court has only relied on the
confessions recorded under TADA to convict the accused for
offences under the Arms Act and the Explosive Substances
Act. In view of our finding that their conviction is
vitiated on account of noncompliance
of the mandatory
requirement of prior approval under Section 20A(
1) of
TADA, the confessions recorded cannot be looked into to
establish the guilt under the aforesaid Acts. Hence, the
conviction of the accused under Sections 7 and 25(1A)
of
the Arms Act and Sections 4, 5 and 6 of the Explosive
Substances Act cannot also be allowed to stand.”
(emphasis supplied)
24. Even in the present case, it is noticed that the
prosecution has essentially relied upon the confessional
statement of the accused recorded under the provisions of
TADA. That will be of no avail and certainly not admissible
against the accused in the trial for offences under other
enactments, especially when the Designated Court could not
have taken cognizance of the offence under TADA for lack of a
valid sanction.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 13591361
OF 2007
The State of Gujarat Vs Anwar Osman Sumbhaniya
A.M. Khanwilkar, J.
Dated:February 27, 2019.
1. The instant appeals filed under Section 19 of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 (for
short “TADA”), are against the final judgment and order dated
12th January, 2007 passed by the Designated Judge,
Jamnagar in Special TADA Case Nos.3/1994, 3/1997 and
1/2005, whereby the respondents have been acquitted after
finding them not guilty of the stated offences.
2
2. Separate chargesheets
were filed against the
respondents for offences punishable under Sections 121,
121A, 122 read with Section 34 of the Indian Penal Code,
Sections 3, 4 and 5 of TADA, Sections 25(1)(A)(D), 25(1AA),
25(1B)(A B F G), 27(1), 29(A) of the Arms Act, 1959 (for short
“1959 Act”), Section 20 of the Indian Telegraph Act, 1885 (for
short “1885 Act”) and Section 6(1A)
of the Indian Wireless
Telegraphy Act, 1933 (for short “1933 Act”). The respondents
were tried for the aforesaid offences in Special TADA Case
Nos.3/1994, 3/1997 and 1/2005, before the Special Court at
Jamnagar, which was then transferred to the Court of
Designated Judge at Jamnagar. Since all the three chargesheets
were in connection with one and the same offence and
to obviate repetition of evidence, consolidated evidence was
recorded for all the cases in Special TADA Case No.3/1994.
3. The complaint (Exh.27A) was lodged by one Bakul
Vithalbhai Jani (PW6),
on the basis of information that
respondent No.1 – Anwar Osman Subhaniya, resident of
3
Salaya Barlovas, Hussaini Chowk “Hasmi Manzil”, was in
illegal possession of foreign made fire arms weapons at his
residential house. The raiding party, after obtaining prior
approval (Exh.30) of Pramod Kumar Jha, DSP (PW15),
proceeded along with search warrant, and upon search of the
residential house of respondent No.1, conducted by the raiding
party, following items were seized:
(i) One – Foreign made carbine gun with magazine
valued Rs.2 lakhs.
(ii) One – Foreign made revolver with eight chambers
worth Rs.60,000/.
(iii) One – Foreign made revolver with six chambers
worth Rs.45,000/.
(iv) One – Transmitter walkytalky
set worth Rs. 1 lakh.
(v) 52 live cartridges of 9 mm stain guns.
(vi) 4 live cartridges of revolvers.
4. Immediately after recovery of arms and ammunition,
after seeking prior oral approval of PW6,
FIR was lodged vide
CR21/
93 for the stated offences only against respondent No.1
and he came to be arrested on 18th June, 1993. Later, on 21st
June, 1994, a chargesheet
was filed against respondent No.1
and the case was registered as Special TADA Case No.3/1994.
Along with the chargesheet,
sanction for prosecution (Exh.84)
4
was obtained from A.K. Tandon, Director General of Police
(PW14)
under Section 20A(
2) of TADA on 39/
1193.
Respondent No.2 Junas
Hazi Ibrahim came to be arrested on
20th March, 1997 and his confessional statement under
Section 15 of TADA was recorded on 25th March, 1997, when
he stated that he sold one carbine gun to respondent No.1.
Chargesheet
was filed against respondent No.2 on 6th April,
1997 whereafter a case was registered against him as Special
TADA Case No.3/1997 before the Designated Court,
Jamnagar. Respondent No.3 came to be arrested in 2005 in
connection with another CR No.43/1994 registered under
Sections 3, 4 & 5 of TADA by the B. Division Police Station on
10th December, 2004. A transfer warrant was obtained from
the TADA Court, Jamnagar for arresting and taking custody of
the respondent No.3 before his arrest. After completion of
investigation against respondent No.3, separate chargesheet
came to be filed on 29th April, 2005 after obtaining prior
sanction (Exh.57) under Section 20A(
2) of TADA from A.K.
Bhargav dated 1st April, 2005.
5
5. As aforesaid, all the three separate chargesheets
were
registered as three Special TADA cases, being Special TADA
Case Nos.3/1994, 3/1997 and 1/2005 before the Designated
Court at Jamnagar. The Designated Court framed charges
against the respondents on 12th September, 2005 to which
they pleaded not guilty and wanted to be tried for the alleged
offence. The prosecution examined 15 prosecution witnesses
and their statements were recorded along with documentary
evidence in support of the case. The respondents did not
produce any defence witness. The Designated Court then
proceeded to consider the rival arguments and framed the
following issues for consideration:
“1) Whether prosecution proves beyond reasonable doubt
that accused have with a view to do the war against India
Government, by aiding and abutting each other, in
furtherance of their common intention, to prepare in
advance to collect the weapons by previously arranging
conspiracy and as a part of that conspiracy, before any time
prior to 18693
at 10:00 hrs. brought subMachinegun,
Revolver and cartridges and walky talky set for non
telephonic message and kept it at the residential house of
accused No.1 Anwar Osman Subhaniya?
2) Whether prosecution proves beyond reasonable doubt
that accused have in connection with the same offence, in
furtherance of their common intention as shown in issue
No.1, with a view in furtherance of their common intention,
aided and abutted each other, before any time prior to 18693,
found from the possession of accused No.1 Anwar
6
Osman Sumbhaniya from his residential house, one Egypt
made self operating sub machine gun and 0.22 Caliber
Germany made revolver and 0.8 caliber American made
revolver and stain Gun and revolver cartridges and
transmeter walky talky set?
3) Whether prosecution proves beyond reasonable doubt,
that in connection with the same offence during 2145
to 2345
on 29793
at Salaya port road from the STD PCO from
possession of accused No.1, wireless set without licence was
found out?
4) Whether prosecution proves beyond reasonable doubt
that in connection with the same offence, accused brought
the above muddamal sub machine gun, revolver and
cartridges without licence from abroad and where found in
the conscious possession of accused No.1?
5) Whether prosecution proves beyond reasonable doubt
that in connection with same offence, accused brought
Japan made two transmeter, wireless
set, before 18693
at
any time from foreign in the above muddamal in India, with
common and criminal intention without licence and done
exchange mutually and where foundout in the conscious
possession of accused No.1 from STD PCO and from the
residential house?
6) Out of accused who can be convicted and for what
offence?
7) What order?”
6. Even though no issue regarding validity of prior approval
before registration of FIR under Section 20A(
1) or the validity
of prior sanction under Section 20A(
2) of TADA before taking
cognizance was framed, the Designated Court at the outset
proceeded to answer the said issues and opined that neither
7
prior approval under Section 20A(
1) of TADA nor prior
sanction under Section 20A(
2) of TADA was in conformity
with the mandate of the stated provisions. So holding, the
Designated Court held that the respondents could not be
proceeded further for the alleged offences. Despite the
Designated Court being fully convinced about the illegality of
“prior approval” and “prior sanction”, it also adverted to the
evidence on record and observed that there was no legal
evidence to record a finding of guilt against the respondents.
For, the confessional statement recorded purportedly under
the provisions of TADA, cannot be looked at. The same would
not be admissible once the prosecution fails on account of lack
of a valid sanction to prosecute under TADA. Further, the
search and seizure procedure was also replete with illegalities.
The Designed Court, therefore, acquitted the respondents,
holding them not guilty for the stated offences, and
consequently, directed immediate release of respondent
No.3/accused No.3, who was in judicial custody as undertrial
prisoner, if was not required in any other case. The bail bonds
8
of respondent Nos.1 & 2/accused Nos.1 & 2 were ordered to
be cancelled.
7. This decision of the Designated Court is the subject
matter of challenge in these appeals filed by the State.
According to the appellant, the Designated Court committed
manifest error in concluding that no valid prior approval
under Section 20A(
1) of TADA was obtained before
registration of FIR for the stated offences. This opinion,
however, was founded on a decision of this Court which is no
more a good law. It is now well settled that even the prior oral
approval can be reckoned as a valid approval within the
meaning of Section 20A(
1) of TADA, albeit supported by
contemporaneous record in that regard to be followed by a
formal written approval. As regards prior sanction accorded by
A.K. Tandon (PW14),
there was ample material on record to
substantiate that he had accorded sanction (Exh.84)
after due
consideration of the relevant aspects and it was not a case of
nonapplication
of mind. Similarly, the prior sanction (Exh.57)
accorded by A.K. Bhargav in respect of accused No.3, is
9
also backed by relevant material duly considered by him, as is
evident from the evidence of Raghuvirsinh Surubha
Chudasama, Dy.S.P. (PW13)
and Yashodhar Ramchandra
Vaidya (PW10).
The opinion of the Designated Court that even
this sanction order suffers from the vice of nonapplication
of
mind is manifestly wrong. It is alternatively contended that
even if the Designated Court was right in concluding that the
prosecution of the respondents suffered due to lack of valid
approval or valid sanction, it should not have dilated on other
aspects of the case on merits as
the only option left to the
Designated Court in such a situation would be to transfer the
case to a regular court under Section 18 of TADA. At any rate,
the Designated Court could not have acquitted the
respondents/accused. Instead, it could have given opportunity
to the prosecution to launch prosecution afresh with a valid
sanction as per the dictum in paragraph 20 of the decision of
this Court in Rambhai Nathabhai Gadhvi & Ors. Vs. State
of Gujarat1. If the prosecution was not inclined to avail of that
1 (1997) 7 SCC 744
10
option, the Designated Court as aforesaid, should have
exercised powers under Section 18 of TADA to transfer the
case to a regular court having jurisdiction under the Code for
trial of other offences. To buttress the above submission,
reliance is placed on the decisions of this Court in Ahmad
Umar Saeed Sheikh Vs. State of U.P.2, Harpal Singh Vs.
State of Punjab,3 and Prakash Kumar alias Prakash
Bhutto Vs. State of Gujarat4.
8. The respondents, on the other hand, have supported the
final opinion of the Designated Court to acquit them. As
regards the validity of prior approval under Section 20A(
1) of
TADA, founded on oral approval followed by written approval,
learned counsel for the respondents, in all fairness, submitted
that the threeJudge
Bench of this Court in State of A.P. Vs.
A. Sathyanarayana and Ors.5 holds the field. Resultantly, it
may not be necessary for this Court to probe into that
question and instead may proceed on the basis that a valid
2 (1996) 11 SCC 61
3 (2007) 13 SCC 387
4 (2005) 2 SCC 409
5 (2001) 10 SCC 597
11
prior approval was accorded in the present case before
registration of FIR for offences punishable under TADA.
However, he contended that no fault can be found with the
conclusion reached by the Designated Court that the prior
sanction accorded in the present case under Section 20A(
2) of
TADA suffers from the vice of nonapplication
of mind and that
finding recorded by the Trial Court is a possible view which
has been expressed after due analysis of the evidence on
record in that regard. He has placed reliance on the decision of
this Court in Gadhvi’s case (supra) where a similar sanction
order issued by A.K. Tandon (PW14)
in another TADA case,
registered at Khambala Police Station under his jurisdiction,
has been deprecated. The Court expressed strong disapproval
regarding the approach of the officer [A.K. Tandon (PW14)],
being reflective of scanty application of mind in respect of vital
and crucial aspects before according sanction under Section
20A(
2) of TADA. It is contended that even in that case, the
sanctioning authority (A.K. Tandon) had merely adverted to
the First Information Report and the office note sent by the
12
Superintendent of Police seeking permission or sanction.
Further, the sanction order had noted that permission to add
Sections 3, 4 or 5 of TADA was being given, as is the noting
made in the subject sanction order (Exh.84).
Such noting, it
has been held suffers from the vice of nonapplication
of mind,
a casual approach and completely in disregard of the mandate
of the law requiring prior sanction of the competent authority.
For, it plainly overlooks the marked distinction between grant
of approval for adding sections of TADA at the stage of
registration of FIR and, on the other hand, according sanction
to prosecute the accused under the provisions of TADA before
laying the chargesheet
in the Designated Court qua them.
Learned counsel submits that the same logic would apply to
the subject sanction order dated 3/91193
(Exh. 84). The
evidence of PW14
or PW15
or for that matter, other
documentary evidence Exh.82 and Exh.83, will be of no avail
to justify the validity of Exh.84. As regards the sanction
accorded to prosecute accused No.3, dated 1st April, 2005
(Exh. 57), the same also, exfacie,
suffers from the vice of non13
application of mind. For, the evidence gathered during the
investigation against accused No.3, at best, indicated that two
walkytalkies
were recovered from him. The sanctioning
authority ought to have reckoned this fact, which by no
standard would constitute an offence under the TADA.
Inasmuch as mere possession of such walkytalkies
per se
would not be an offence under TADA. The sanctioning
authority has palpably failed to evaluate the materials
gathered during the investigations before recording its
satisfaction on the factum whether any terrorist act has been
committed by the named person within the meaning TADA or
for that matter being a member of the terrorist gang or party to
the conspiracy or abetment or facilitating the commission of a
terrorist act. In substance, learned counsel for the
respondents submits that no interference is warranted with
the finding of fact recorded by the Designated Court that the
sanction orders issued by the competent authority (Exh.84
and Exh. 57) suffer from the vice of nonapplication
of mind.
To buttress this submission, learned counsel for the
14
respondents has placed reliance on State of Bihar & Anr.
Vs. P.P. Sharma & Anr.6, Rambhai Nathabhai Gadhvi
(supra), Mohd. Iqbal M. Shaikh & Ors. Vs. State of
Maharashtra7, State (NCT of Delhi) Vs. Navjot Sandhu 8,
Seeni Nainar Mohammed Vs. State 9.
9. We have heard Ms. Pinky Behra, learned counsel
appearing for the State of Gujarat and Mr. A. Sirajudeen,
learned senior counsel appearing for the respondents.
10. First we intend to deal with the issue of validity of the
sanction order dated 3/9`
1193
(Exh.84). This document is
the outcome of the letter dated 9th August, 1993 sent by
Pramod Kumar Jha, DSP (PW15),
to the Director General of
Police for grant of sanction under Section 20A(
2) of TADA.
The said letter reads thus:
“Exhibit – 82
“No. RB/D/121/1993/1810
THE OFFICE OF DISTRICT SUPREINTENDENT OF POLICE
JAMNAGAR
DATED 09/08/1993
To,
The Director General of police
And Chief of Police
6 1992 Supp. (1) SCC 222
7 (1998) 4 SCC 494
8 (2005) 11 SCC 600
9 (2017) 13 SCC 685
15
Gujarat State, Ahmedabad
Subject: With regard to obtaining sanction under section
20A(1) of the TADA under Salaya Police Station Crime I
21/93.
With it is hereby stated with regard to the above mentioned
subject that,
The Salaya Police station Crime I 21/93 under section 121,
121A, 122, 34 of the IPC, section 26(1) (AD) (1AA),
25(1B)
A,B,C,F,G and 27 (1) 29(A) of the Arms act, section 6(1)A of
the Wireless Telegraph act, section 20 of the Telegraph act
and section 3, 4 and 5 of the TADA act is committed on
18/06/1993 at 10/00 hours at Salaya Barlovas Hashmi
Manzil. As for the crime, the PSI Mr. B. V. Jani, LCB
Jamnagar filed complaint on 18/06/1993 at 13/30 hours
against accused Anwar Osman Vadher Musalman resident of
Salaya Barlovas Hashmi Manzil for keeping in possession
weapons unlawfully. The copy of FIR is annexed hereby.
The accused Anwar Osman Vadher resident of Salaya kept in
his possession unlawfully and without license the 1) Foreign
Carbon Stand gun Magazine worth Rs.2 lacs, 2) Foreign
made revolver with eight cylinders in chamber worth Rs.60
thousand, 3) one foreign made revolver with six cylinders in
chamber having worth Rs. 45 thousand, 4) one transmitter
walky talky set foreign made worth Rs.1 lakh, 5) stand gun
live cartridges nos. 52 nos. worth Rs.1040, 6) Revolver live
cartridges nos. 4 worth Rs.80/and
therefore he was
arrested on 19/00 of 18/06/1993. He was produced before
the honourable court and a remand was sought, thereby a
remand till 01/07/1993 was granted and during the
remand, upon further investigation, it was divulged by him
that the weapons were obtained from 1) Mamummiya
Panjumiya resident of Porbandar, 2) Junus Ibrahim Gajwa
Vadher resident of Salaya, 3) Adam Jusab Bhaya Vadher
resident of Salaya since deceased. Upon investigating as to
the nos. 1 and 2, it was found that they had fled and thus
the further investigation is held so as to arrest these
persons. Upon completion of the remand period of accused
Anwar Osman Patel, the further remand was sought, but it
was rejected by the court and thus the accused was sent to
the court custody. As for the above mentioned offence, the
sanction is received by letter no. VIR/ATK/1993/3717 dated
16
06/07/1993 from the side of the home department, for the
purpose of application of TADA. Therefore it is submitted
that relevant order be passed for sanction of section 20A(2)
of TADA.
Sd/illegible
P K Za
District Superintendent of Police
Jamnagar”
11. On the basis of this communication, Office Note (Exh. 83)
was placed for consideration before A.K. Tandon, DGP (PW14).
The said Office Note (Exh.83) reads thus:
“Exhibit 83 (Office note)
“Salaya Police station Crime I 21/93 under section 25(A),
25(1)AA B A, Customs act section 135 and section 3, 4 and 5
of the TADA act.
From the house possessed and used by the accused Anwar
Osman Vadher Musalman, weapons without any license
being Foreign Carbon Stand gun Magazine worth Rs.2 lacs,
Foreign made revolver with eight cylinders in chamber worth
Rs.60 thousand, one foreign made revolver with six cylinders
in chamber having worth Rs.45 thousand, one transmitter
walky talky set foreign made worth Rs.1 lakh, stand gun live
cartridges nos. 52 nos. worth Rs. 1040 and Revolver live
cartridges nos. 4 worth Rs. 80/and
upon investigation from
the accused, he stated that, the weapons were obtained from
1) Mamummiya Panjumiya resident of Porbandar, 2) Junus
Ibrahim Gajwa Vadher resident of Salaya, 3) Adam Jusab
Bhaya Vadher resident of Salaya (since deceased). Upon
investigating as to the nos. 1 and 2, it was found that they
had fled and thus the further investigation for these two
persons.
Placed with regards:
17
It is a request to taken into perusal the order passed by the
honourable Inspector General of Police at page P19/
NS.
2. In the Salaya police station Crime I 21/93, Jamnagar
City B Division Police station Crime 151/93, Panchnoshi B
Division police station Crime I 57/93 and Bharwad Police
Station Crime I 43/93, the S1 to S8 documents are placed
on record for signature, in reference to the order passed by
the Inspector General of Police.
Kindly sign the same.
Orders giving permission for applying TADA as placed at S1
TO S8, which may please be illegible.
Sd/1/
11/1993”
12. Indeed, P.K. Jha (PW15)
in his evidence has stated that
after sending the letter (Exh. 82), the DGP Mr. A.K. Tandon
(PW14)
had summoned him with papers of the case for
discussion. Further, Mr. Tandon had personally discussed
about the case with him. During that interaction, P.K. Jha had
apprised the DGP about the details of the investigation and
other details as to why it was necessary to apply the
provisions of TADA and file the chargesheet
in that regard.
Pramod Kumar Jha, DSP (PW15)
has been crossexamined
by
accused Nos.1 & 2. In the crossexamination,
he stood by his
version that he had gone to Director General of Police (PW14)
18
at Padadhari and had also gone to Ahmedabad but was unable
to give the dates and time of the said meetings. He asserted
that he had made notes about the meeting in his records and
in his personal diary which is called Estatement.
However,
the fact remains that the purported sanction order dated
3/91193
(Exh.84) makes reference only to have taken note of
the FIR and the proposal received from DSP, Jamnagar. We
may assume that the two officers – Pramod Kumar Jha (PW15)
and A.K. Tandon, DGP (PW14)
had interacted regarding
the nature of investigation before issuing the purported
sanction order dated 3/91193
(Exh.84). Even though A.K.
Tandon, DGP (PW14)
had asserted that he had fully applied
his mind before issuing the purported sanction order under
Section 20A(
2) of TADA, that order, however, is suggestive of
a casual approach of A.K. Tandon, DGP (PW14).
The same
reads thus:
“AnnexureP/
5
Mark 80/5 Exh.84.
No.J.1/1909/1/Salaya/21
93/4327.
Office of DGP and Chief Police
Officer, Gujarat State, Ahmedabad
39/
1193.
19
Ref:1.
FIR of Salaya Police Stn. CR No.21/93 u/s. 122 of IP
Code and u/s. 25(1)(A) 25(1AA) 25 (AB,AF) 25(1)(B)(A)(F) of
Arms Act and u/s. 6(1)A of Wireless Telegraph Act and u/s.
20 of Telegraph Act and u/s. 135 of Customs Act and u/s.
3,4,5 of TADA Act.
2.
Proposal No. DSP, Jamnagar, RBD121Proved
in
1993/1810 dtd. 9893
by DSP, Jamnagar.
Deposition of witness No.14
Mark 80/5 be exhibited at exh.84 in spl. case No.3/94.
Sd/Desi.
Judge, 4706.
Jamnagar.
After carefully reading and considering the proposal for
approval to apply TADA section vide letter No. RBD/121/
1993/1810 dtd. 9893
by DSP Jamnagar and FIR of
Jamnagar Dist. Salaya Police Station CR No.21/93 u/s. 122
of IP Code and u/s. 25(1)(A) of Arms and u/s. 3,4,5 of TADA
act, I A.K. Tandon, DGP and Chief Police Officer Gujarat
State, Ahmedabad do hereby approval/sanctioned to apply
TADA act 3,4,5 under amended provisions of amended TADA
act 1987 (Amendment 1993) u/s. 20(1)(2).
Sd/ A.K. Tandon
DGP and Chief Police
Officer, Guj. State,
Ahmedabad.
To,
DSP, Jamnagar Dists. Jamnagar
Copy to: Chief Special police officer/Dy. Chief Police Officer,
Rajkot Division, Rajkot, Addl. DGP Shri, CID, Crime and
Range Gujarat State, Ahmedabad.
Sd/ Pramodkumar
Asst. Chief Police Officer, Crime.
Endorsement for true copy
Copy applied for by Dy.S.P. Khambhalia on 13407
And copy ready on 23407
and copy delivered on
25507.
Sd/ Registrar
20
True copy.
Sd/ Registrar.
Dist. & Sessions Court, Jam.
Translated from guj.
Into eng. Version by me.”
13. On a fair reading of this document it is evident that the
author of the document A.K. Tandon, DGP (PW14),
adverted
only to the FIR and the proposal received from DSP,
Jamnagar. The understanding of PW14
was that the proposal
received from DSP, Jamnagar (PW15)
was for granting
approval to apply provisions of TADA and the said proposal
was accepted. The respondents have rightly relied on the
dictum in Gadhvi’s case (supra), where a similar purported
sanction under Section 20A(
2) of TADA issued by the very
same officer A.K. Tandon, DGP (PW14),
in respect of some
other TADA case, came up for consideration. The wording of
sanction order considered by this Court is similar to the one
under consideration. In paragraph 9 of the reported judgment,
the said sanction order has been reproduced, which reads
thus:
21
“9. In this case the prosecution relies on Ext. 63, an order
issued by the Director General of Police, Ahmedabad, on 391993,
as the sanction under Section 20A(
2) of TADA. We are
reproducing Ext. 63 below:
“Sr. No. J1/
1909/1/Khambalia 55/93
Director General of Police, Dated 391993
Gujarat State,
Ahmedabad.
Perused: (1) FIR in respect of offence Registered No.
55/93 at Khambalia Police Station 25(1)(b)(a)(b) of Arms
Act and Sections 3, 4 and 5 of the TADA.
(2) Application sent by DSP Jamnagar vide his letter No.
RB/D/122/1993/1820 dated 981993.
Having considered the FIR in respect of offence
Registered No. 55/93 at Khambalia Police Station
District Jamnagar under Section 25(1)(b)(a)(b) of Arms
Act and Sections 3, 4 and 5 of TADA and letter No.
RB/D/122/1993/1820 of DSP dated 981993
seeking
permission to apply the provisions of TADA carefully, I
A.K. Tandon, Director General of Police, Gujarat State,
Ahmedabad under the powers conferred under the
amended provisions of TADA (1993) Section 20A(
2) give
permission to add Sections 3, 4 and 5 of TADA.
A.K. Tandon
Director General of Police
Ahmedabad
Gujarat”
While analyzing the said sanction in paragraph 10, this Court
observed thus:
“10. Apparently Ext. 63 makes reference only to two
documents which alone were available for the Director
General of Police to consider whether sanction should be
accorded or not. One is the FIR in this case and the other is
the letter sent by the Superintendent seeking permission or
sanction. No doubt in that letter to the Director General of
Police the Superintendent of Police had narrated the facts of
the case. But we may observe that he did not send any other
document relating to the investigation or copy thereof along
with the application. Nor did the Director General of Police
22
call for any document for his perusal. All that the DGP had
before him to consider the question of granting sanction to
prosecute were the copy of the FIR and the application
containing some skeleton facts. There is nothing on record to
show that the Director General of Police called the
Superintendent of Police at least for a discussion with him.”
And again in paragraphs 14 and 15 of the judgment, this
Court observed:
“14. Apart from what we have noticed above, the nonapplication
of mind by the Director General of Police, Gujarat
State, is even otherwise writ large in this case. A perusal of
Ext. 63 (supra) shows that the Director General of Police in
fact did not grant any sanction for the prosecution of the
appellants. Last part of the order reads: ‘I A.K. Tandon,
Director General of Police, Gujarat State, Ahmedabad under
the powers conferred under the amended provisions of TADA
(1993) Section 20A(
2) give permission to add Sections 3, 4
and 5 of TADA.’ Thus, what the Director General of Police did
was to grant permission “to add Sections 3, 4 and 5 of TADA”
and not any sanction to prosecute the appellants. It is
pertinent to note here that the permission to add Sections 3,
4 and 5 of TADA had been granted by the Home Secretary,
the competent authority, much earlier and no such
permission was sought for from the Director General of
Police by the DSP. The Designated Court thus, failed to
notice that Ext. 63 was not an order of sanction but an
unnecessary permission of the Director General of Police to
add Sections 3, 4 and 5 of TADA. The Director General of
Police, apparently, acted in a very casual manner and
instead of discharging his statutory obligations under
Section 20A(
2) to grant (or not to grant) sanction for
prosecution proceeded to deal with the request of the DSP
23
contained in his letter dated 981993,
as if it was a letter
seeking permission to apply the provisions of TADA. The
exercise exhibits that the Director General of Police did not
even read, let alone consider “carefully”, the FIR and the
letter of the DSP dated 981983.
We cannot but express our
serious concern at this casual approach of the Director
General of Police. On a plain reading of Ext. 63, therefore, we
must hold that it is not an order of sanction to prosecute the
appellants as required by Section 20A(
2) of the Act.”
15. In view of the aforesaid legal and factual position we
have no doubt that sanction relied on by the prosecution in
this case was not accorded by the Director General of Police
in the manner required by law. Ext. 63 is not the result of a
serious consideration and the document reflects scanty
application of the mind of the sanctioning authority into vital
and crucial aspects concerning the matter. It vitiates
sanction and hence Ext. 63 cannot be treated as sanction
under Section 20A(
2) of TADA.”
14. The subject sanction (Exh.84) as aforesaid is issued by
the very same officer and presumably prepared on the same
date 3.11.93, but signed and issued on 9th November, 1993.
Even in the present case, reference is only to two documents
reckoned by PW14
before issuing the sanction. To wit, the FIR
and the letter or proposal sent by the DSP, Jamnagar. In the
evidence, although it is asserted that the DSP (PW15)
was
called for discussion and who, in turn, apprised him of all the
24
relevant details of the investigation, but that fact is not
reflected in any contemporaneous record. No such record has
been produced by the prosecution. What is significant is the
wording of the subject sanction (Exh.84). When juxtaposed
with the sanction in the reported case (Exh.63 reproduced in
paragraph 9 of the said judgment), it is obvious that even in
the present case, what has been noted in Exh.84 is the
permission to apply Sections 3, 4 and 5 of TADA. In
paragraphs 14 and 15 of the reported decision extracted
above, this Court opined that such noting was itself indicative
of the fact that it was not a sanction to prosecute the accused
but at best giving permission to apply the provisions of TADA.
Such a sanction cannot be considered as a valid sanction,
much less issued after due application of mind. We wish to
adopt the same logic, which applies proprio vigore to the fact
situation of the present case.
15. In other words, the purported sanction dated 3/91193
(Exh.84), granted by PW14
is not a valid sanction within the
meaning of Section 20A(
2) of TADA. It must, therefore, follow
25
that the Designated Court could not have taken cognizance of
the offences punishable under TADA for want of a valid
sanction.
16. Reverting to the sanction dated 1st April, 2005 (Exh.57),
concerning accused No.3/respondent No.3, issued under the
signature of A.K. Bhargav (who is not examined) read with the
evidence of Yashodhar Ramchandra Vaidya (PW10),
it may
appear that it has been issued after due consideration of all
the relevant material, including police papers. The evidence of
Yashodhar Ramchandra Vaidya (PW10)
indicates that a Yadi
was received on 27th March, 2005 in the Office of Director
General of Police and Chief Police Officer, where the witness
was working as ASI. The same is dated 11th March, 2005
(Exh.55), issued under the signature of R.S. Chudasama (PW13).
It read thus:
“EXHIBIT – 55
OUTWARD NO.RB/741/05
Office of the Deputy Superintendent of police
Khambhaliya Division, dated 11/03/2005
To,
The Inspector General of Police
Gujarat State, Gandhinagar.
26
Subject: Sanction for filing of charge sheet against
accused Umarmiya @Mamumiya s/0 Ismailmiya s/o
Ismailmiya Panjumiya Saiyed Bukhari resident of Porbandar
under section 20 (a) (2) of the Terrorist and Disruptive
Activities (Prevention) act 1987.
The deputy superintendent of police, Khambhaliya Mr. R. S.
Chudasama, hereby submit that,
That investigation of the Salaya Police station Crime I 21/93
under section 121, 121A, 122, 34 of the IPC, section 26 (1)
(AD) (1AA),
25 (1B)
A, B, C, F, G and 27 (1) 29 (A) of the
Arms act, section 6 (1) A of the Wireless Telegraph act,
section 20 of the Telegraph act and section 3, 4 and 5 of the
TADA act, is held by me.
On 18/06/1993 at 13/30 hours at the Salaya Police Station,
on behalf of the state Mr. B. V. Jani police sub inspector
LCB Branch, Jamnagar declared complaint against Anwar
Osman SubhaniyaVagher resident of SalayaHussaini Chowk,
Hazmi Manzil and declared that that accused was arrested
with the muddamal of 1) Foreign Carbon Stand gun
Magazine worth Rs.2 lacs, 2) Foreign made revolver with
eight cylinders in chamber worth Rs. 60 thousand, 3) one
foreign made revolver with six cylinders in chamber having
worth Rs.45 thousand, 4) one transmitter walky talky set
foreign made worth Rs.1 lakh, 5) stand gun live cartridges
nos. 52 nos. worth Rs.1040, 6) Revolver live cartridge nos. 4
worth Rs.80/and
the above mentioned crime was registered
in detail.
The above mentioned accused Anwar Osman, during the
remand showed one transmitter walky talky wireless set
worth Rs. 75 thousand and during the remand he stated
that two wireless set were purchased by him from accused
Umarmiya @Mammumiya s/o Ismailmiya @PanjumiyaSaiyed
Bukhari resident of Porbandar. In this manner the name of
accused Umarmiya was declared for the crime and this
accused thereby remained absconding. As the accused
remained absconding, during the year 1994, the honourable
27
court notified the accused as absconding under section 8(3)
of the TADA act.
This particular accused Umarmiya @Mammumiya s/o
Ismailmiya @PanjumiyaSaiyed Bukhari resident of
Probandar, was arrested for the Porbandar city Kamlabaug B
Division police station Crime I 43/94 under sections 3, 4, 5,
etc. of the TADA act on 10/12/2004 and he was brought
before the Probandar Judicial First Class magistrate court
No.1. In this particular case, the transfer warrant was issued
by the Jamnagar designated court on 14/12/2004, it was
sunmitted before the Porbandar court and the accused was
brought before me after obtaining his custody by the police
sub inspector Mr. B. V. Pander on 08/02/2005. This
particular accused was arrested as per proceedings in its
presence of the panch witnesses on 08/02/2005 at 2300
hours. During the hearing, the accused was brought before
the honourable additional sessions and designated judge
Khambhaliya and a remand of days30
were sought for the
accused and therefore the honourable court approved the
remand in police custody, of the accused till 1100
hours of
14/02/2005. During the remand, the accused was inquired
from and he mentioned that, the two Walky Talky set that he
gave to Anwar Osman Subhaniya were taken by him from
his brother Abdullah Osman Subhaniya in the year 1985 for
smuggling activities. Thereafter he gave both these Walky
Talky sets to Anwar Osman Suhaniya and thereby these
details were divulged during the investigation. Upon
investigating as to Abdullah Osman Subhaniya, it came out
during the investigation that, that particular person does not
reside in Salaya and has gone to Abu Dhabhi (Foreign
nation). As for this, the further remand of 15 days was
sought for the accused but it was rejected by the court and
thereby he was taken under judicial custody.
The evidence found during the investigation against the
accused are hereby marked and provided.
Mark A Salaya police station Crime I 21/93 FIR
Mark B Panchnama for taking into custody the
28
weapons dated 18/06/1993
Mark C Discovery panchnama dated
29/06/1993 for Walky Talky shown by
the accused Anwar Osman Subhaniya
during the remand.
Mark D Total 23 statements of the police officer
and staff that were present in the
raiding party.
Mark E The statement of the accused Anwar
Osman Subhaniya dated 21/06/1993
Mark F The order passed for application of
TADA sections in the Salaya Crime I
21/93
Mark G The letter mentioning the details of case
registered against the accused
Umarmiya @Mammumiya s/o
Ismailmiya by Customs Porbandar for
smuggling silver.
Mark H The FSL certificate issued by
Ahmedabad office for the weapons taken
into custody.
Mark I The charge sheet no.19/94 registered
against the accused Anwar Osman
Subhaniya on 18/06/1994 and the
copy of the charge sheet wherein the
accused Mammumiya Panjumiya Saiyed
is shown as absconding under column
no.2.
Mark J The letter under report no.4/93 under
section 8(3)(A) of TADA act against the
accused Mammumiya Panjumiya.
Mark K The papers wherein the accused
Mammumiya Panjumiya was declared
absconding.
Mark L The transfer warrant of accused
Mammumiya Panjumiya.
Mark M The physical situation panchnama
dated 08/02/05 at the time of arrest of
accused Mammumiya Panjumiya.
Mark N Face mark register for accused
Mammumiya Panjumiya.
Mark O The explanation dated 08/02/2005 to
14/02/2005 by accused Mammumiya
Panjumiya.
29
Mark P The further statement dated 1112/
02/2005 by accused Anwar Osman
Subhaniya.
Mark Q The further statement dated 1112/
02/2005 by accused Junus Ibrahim
Gajan.
Mark R The copy of court order for application
no.88/05 filed for days30
remand
against the accused Mammumiya
Panjumiya.
Mark
S
The copy of court order for application
no.96/05 filed for days15
remand
against the accused Mammumiya
Panjumiya.
In this manner, as for the purpose of filing a charge sheet
under Section 20(A) (2) of the TADA act against the accused
Saiyed Bukhari aged 50 years, resident of Porbandar
Thakkar Plot, Sheri no.1, Jamadar Fadi, the sanction is
required and thus it is hereby submitted that the above
mentioned documents be taken into perusal and the
sanction be provided for filing a charge sheet against the
accused under section 20(A)(2) of the TADA act.
Kindly consider the above.
Sd/illegible
(R S Chudasama)
Deputy Superintendent of Police
Khambhaliya Division
Sent with regards,
Superintendent of Police, Jamnagar.”
17. This was followed by a communication sent under the
signature of Manoj Shashidhar, Superintendent of Police,
Jamnagar (not examined) dated 15th March, 2005 (Exh.56). It
read thus:
30
“Exhibit – 56
“OUTWARD NO. RB/illegible 4/2005
Office of the Superintendent of police
Jamnagar, dated 15/03/2005
To,
The Inspector General of Police
Gujarat State, Gandhinagar.
Subject: Sanction for filing of charge sheet against
accused Umarmiya @Mamumiya s/o Ismailmiya s/o
Ismilmiya Panjumiya Saiyed Bukhari resident of Probandar
under section 20(a)(2) of the Terrorist and Disruptive
Activities (Prevention) act 1987, so as to held further
proceedings against him before the honourable court.
Reference: The Deputy superintendent of police,
Khambhaliya division letter No.RB/741/05 dated
11/03/2005.
The investigation of the Salaya Police station Crime I 21/93
under section 121, 121A, 122, 34 of the IPC, section 26(1)
(AD) (1AA),
25 (1B)
A, B, C, F, G and 27 (1) 29(A) of the
Arms act, section 6 (1) A of the Wireless Telegraph act,
section 20 of the Telegraph act and section 3, 4 and 5 of the
TADA act, is held by deputy superintendent of police,
Khambhaliya Mr. R.S. Chudasama.
On 18/06/1993 at 13/30 hours at the Salaya Police Station,
on behalf of the state Mr. B. V. Jani police sub inspector
LCB Branch, Jamnagar declared complaint against Anwar
Osman Subhaniya Vagher resident of Salaya Hussaini
Chowk, Hazmi Manzil and declared that the accused was
arrested with the muddamal of 1) Foreign Carbon Stand gun
Magazine worth Rs. 2 lacs, 2) Foreign made revolver with
eight cylinders in chamber worth Rs.60 thousand, 3) one
foreign made revolver with six cylinders in chamber having
worth Rs. 45 thousand, 4) one transmitter walky talky set
foreign made worth Rs.1 lakh, 5) stand gun live cartridges
nos. 52 nos. worth Rs. 1040, 6) Revolver live cartridges nos.
31
4 worth Rs. 80/and
the above mentioned crime was
registered in detail.
The above mentioned accused Anwar Osman, during the
remand showed one transmitter walky talky wireless set
worth Rs.75 thousand and during the remand he stated that
two wireless set were purchased by him from accused
Umarmiya @Mammumiya s/o Ismailmiya @Panjumiya
Saiyed Bukhari resident of Probandar. In this manner the
name of accused Umarmiya @ Mammumiya s/o Ismailmiya
@Panjumiya Saiyed Bukhari resident of Porbandar was
declared for the crime and this accused thereby remained
absconding. As the accused remained absconding, during
the year 1994, the honourable court notified the accused as
absconding under section 8(3) of the TADA act.
The particular accused Umarmiya @ Mammumiya s/o
Ismailmiya @ Panjumiya Saiyed Bukhari resident of
Porbandar, was arrested for the Probandar city Kamlabaug B
Division police station Crime I 43/94 under Sections 3, 4, 5,
etc. of the TADA act on 10/12/2004 and he was brought
before the Probandar Judicial First Class magistrate court
no.1. In this particular case, the transfer warrant was issued
by the Jamnagar designated court on 14/12/2004, it was
submitted before the Porbandar court. The accused
Umarmiya @Mammumiya s/o Ismailmiya @Panjumiya
Saiyed Bukhari resident of Porbandar was brought before
superintendent of police, Khambhaliya division Mr. R.S.
Chudasama after obtaining his custody by the police sub
inspector Mr. B.V. Pander on 08/02/2005. This particular
accused was arrested as per proceedings in the presence of
the panch witnesses on 08/02/2005 at 2300
hours. During
the hearing, the accused was brought before the honourable
additional sessions and designated judge Khambhaliya and a
remand of days30
were sought for the accused and
therefore the honourable court approved the remand in
police custody, of the accused till 1100
hours of
14/02/2005. During the remand, the accused was inquired
from and he mentioned that, the two Walky Talky set that he
32
gave to Anwar Osman Subhaniya were taken by him from
his brother Abdullah Osman Subhaniya in the year 1985 for
smuggling activities. Thereafter he gave both these Walky
Talky sets to Anwar Osman Suhaniya during 1989/90 and
thereby these details were divulged during the investigation.
Upon investigating as to Abdullah Osman Subhaniya, it
came out during the investigation that, that particular
person does not reside in Salaya and has gone to Abu
Dhabhi (Foreign nation). As for this, the further remand of
15 days were sought for the accused Umarmiya
@Mammumiya s/o Ismailmiya @Panjumiya Saiyed Bukhari
resident of Probandar but it was rejected by the court and
thereby he was taken under judicial custody. The evidence
found during the investigation against the accused are
hereby provided as marked along with the letter submitted.
In this manner, as for the purpose of filing a charge sheet
under section 20(A) (2) of the TADA act against the accused
Umarmiya @Mammumiya s/o Ismailmiya @Panjumiya
Saiyed Bukhari aged 50 years, resident of Porbandar
Thakkar Plot, Sheri no.1, Jamadar Fadi, it is requested that
a sanction be provided.
Kindly consider the above.
Annexed:
The documents placed on record along with the letter.
Sd/illegible
(Manoj Shashidhar)
Superintendent of Police
Jamnagar
Copy sent:
Deputy Superintendent of police
Khambhaliya Division, Khambhaliya”
33
18. The purported sanction dated 1st April, 2005 (Exh.57)
was finally issued under the signature of A.K. Bhargav, IGP
(not examined). The stated sanction reads thus:
“Exh.57.
Mark 13/18
No. G1(
Crime/T1/
TADA chargesheet/approval/1239/2005
Office of DIG and Chief Police officer
Gujarat State Police Bhavan, Sector 18 Gandhinagar.. proved in
deposition of Yashodhar Ramchandra in sessions case No.3/94
mark 13/8 is given exhi. in deposition of witness No.10.
Sd/ Designated Judge, Jamnagar.
Ref:1.
Regarding giving of approval for chargesheet u/s. 20(A)(2)
of TADA act against accused Umarmiya Aliyas Mamumiya S/o
Ismailmiya Alias Panjumiya Bukshari resi. of Porbander for
offence u/s. 121, 121(A), 122, 34 of IPC and u/s. 1(AD) (1 AA)
25(1B), ABCFG and 27(1), 29(A) of Arms act and u/s. 1 of Wireless
Telegraphic act and u/s. 20 of Telegraph act and u/s. 3,4,5 of
TADA act who was arrested on Salaya CR No. 21/93.
2. Proposal for giving sanctioned for chargesheet under TADA
act letter No. RBR/1014/2005 dtd. 15305
of DSP, Jamnagar.
After
carefully considering and going through the proposal
for giving approval for chargesheet under the TADA act of the
papers and the letter No.RBR/1014/2005 dtd. 15305
of DSP,
Jamnagar and going through the FIR filed against accused
Umarmiya Mamumiya S/o. Ismailmiya alias Panjumiya Bukhari of
Porbander who is arrested for the offence u/s. 121, 121 A, 122, 34
of IPC and u/s. (1) (AD) (1AA) 25(1B) A,B,C,F,G and 27(1), 29(A) of
Arms and u/s. (1) A of Wireless telegraphic act and u/s. 20 of
Telegraph acts and under sec. 3,4,5 of TADA act in Salaya Police
station 21/93 Dist. , Jamnagar I A.K. Bhargav IG and Chief Police
officer Gujarat State Gandhinagar do hereby grant
34
approval/sanctioned under the provisions of TADA Act 1980 sec.
20(A) (2) Amended 1993 for filing chargesheet against Umarmiya
alias Mamumiya S/o. Ismailmiya Alias Panjumiya Bukhari of
Porbander in CR No.21/39 u/s. 20(A) (2) of TADA act.
Sd/ A.K. Bhargav
IGP
and Chief Police officer
Gujarat State Gandhinagar.
Inward No. 14237 office
of DSP, Jamnagar.
RB
To IO and SDPO KBL
for N/A.
Sd/Illegible
15405”
19. On a bare perusal of Exh.57, there is nothing to indicate
as to whether the sanctioning authority was conscious of the
materials gathered during investigation qua the concerned
accused (respondent No.3), which merely suggested
possession and recovery of two walkytalkies
from him. If that
is the only incriminatory material against accused
No.3/respondent No.3, the sanctioning authority ought to
have pondered over the crucial aspects including as to how
such possession would entail in commission of any offence
muchless punishable under Sections 4 or 5 of TADA. Further,
section 3 of TADA posits different offences, namely, terrorist
35
acts [Section 3(2)], being party to conspiracy or abetment or
knowingly facilitating the commission of terrorist acts [Section
3(3)], harbouring or concealing any terrorist [Section 3(4)],
being member of a terrorist gang or terrorist organization,
which is involved in terrorist acts [Section 3(5)], and to hold
any property derived or obtained from commission of any
terrorist act [Section 3(6)]. The sanctioning authority was
under a bounden duty to accord sanction, specific to offences,
from amongst the different offences under subsections
(1) to
(6) of Section 3 of TADA. Similarly, we are at a loss to know as
to how Sections 4 & 5 of TADA would apply to a case of mere
possession of walkytalkies.
Section 4 refers to disruptive
activities whereas Section 5 refers to possession of
unauthorized classified arms and ammunition. A walkytalky
is certainly not one of those classified arms and ammunition.
In our opinion, the purported sanction vide Exh.57 also
suffers from the vice of nonapplication
of mind, on this count
alone.
36
20. The necessity of obtaining prior sanction under Section
20A(
2) need not be underscored considering the draconian
provisions of TADA. In our opinion, therefore, even sanction
qua accused No.3/respondent No.3 dated 1st April, 2005
(Exh.57) does not stand the test of a valid sanction to
prosecute him for offences punishable under TADA. Indeed,
the prosecution has relied on the evidence of PW10
and PW13.
That, in our opinion, at best, would suggest that all the
relevant papers gathered during the investigation were placed
for consideration before the sanctioning authority. The fact
remains that Exh.57 issued under the signature of A.K.
Bhargav, IGP, makes no attempt to even remotely indicate as
to why sanction to prosecution for offences punishable under
Sections 3, 4 or 5 of TADA has been accorded qua accused
No.3/respondent No.3 merely on the basis of possession and
recovery of two walkytalkies
from him. Further, he has not
been examined by the prosecution which also could have
thrown light on that crucial aspect. Therefore, we have no
hesitation in concluding that the sanction dated 1st April, 2005
37
(Exh.57), is not a valid sanction qua accused No.3/respondent
No.3.
21. We are conscious of the fact that the Designated Court
did not frame any issue regarding validity of prior approval
under Section 20A(
1) or prior sanction under Section 20A(
2).
As the question of prior approval or prior sanction goes to the
root of the matter and is sine qua non for a valid prosecution
concerning TADA offences and including the jurisdiction of the
Designated Court, no fault can be found with the Designated
Court for having answered that issue at the outset.
22. The next question is whether the Designated Court could
have had convicted the respondents for offences punishable
under other enactments (other than TADA). Even though the
Designated Court, in paragraph 17 of the impugned judgment,
took note of the fact that the learned APP had not alternatively
argued this point, it went on to analyse the efficacy of the
evidence on record in reference to offences under other
enactments namely, IPC, Arms Act, Indian Telegraph Act,
Indian Wireless and Telegraphy Act. It noted that the fulcrum
38
of the prosecution case was founded on the confessional
statement of the accused, which came to be recorded under
the provisions of TADA. It took the view that since the accused
cannot be proceeded for TADA offences for lack of a valid
sanction, that confessional statement will be of no avail and
cannot be looked at in reference to charges for offences under
other enactments (not being admissible) muchless to record a
finding of guilt against the accused for offences under the
other enactments. It also found that the evidence regarding
search and recovery was replete with fatal deficiencies and
was insufficient to establish the complicity of the respondents
in the commission of offences under the other enactments.
Thus, it held that the accused deserved to be acquitted.
However, relying on the observations in paragraphs 17 and 18
of Gadhvi’s case (supra), it erroneously opined that the
Designated Court had no independent power to try any other
offence, as valid sanction under Section 20A
(2) was not in
place.
23. We may hasten to observe that it is now well settled that
the Designated Court, besides trying the case under TADA,
can also try any other offence with which the accused may be
charged at the same trial if the offences are connected with
offences under TADA. For, implicit power has been bestowed
upon the Designated Court to convict the accused for offences
under other enactments if there is legally admissible evidence
to establish those charges. We may usefully refer to the
dictum in paragraph 37 of the Constitution Bench judgment in
Prakash Kumar alias Prakash Bhutto (supra), which reads
thus:
“37. The legislative intendment underlying Sections 12(1)
and (2) is clearly discernible, to empower the Designated
Court to try and convict the accused for offences committed
under any other law along with offences committed under
the Act, if the offence is connected with such other offence.
The language “if the offence is connected with such other
offence” employed in Section 12(1) of the Act has great
significance. The necessary corollary is that once the
other offence is connected with the offence under TADA
and if the accused is charged under the Code and tried
together in the same trial, the Designated Court is
empowered to convict the accused for the offence under
any other law, notwithstanding the fact that no offence
under TADA is made out. This could be the only
intendment of the legislature. To hold otherwise, would
amount to rewrite or recast legislation and read something
into it which is not there.”
(emphasis supplied)
This exposition has been applied by a Two Judge Bench in a
recent decision in Ashrafkhan alias Babu Munnekhan
Pathan & Anr. Vs. State of Gujarat 10 (2012) 11 SCC 606, as is evident from
paragraph 41, which reads thus:
“41. We have held the conviction of the accused to have
been vitiated on account of noncompliance
with Section
20A( 1) of TADA and thus, it may be permissible in law to
maintain the conviction under the Arms Act and the
Explosive Substances Act but that shall only be possible
when there are legally admissible evidence to establish
those charges. The Designated Court has only relied on the
confessions recorded under TADA to convict the accused for
offences under the Arms Act and the Explosive Substances
Act. In view of our finding that their conviction is
vitiated on account of noncompliance
of the mandatory
requirement of prior approval under Section 20A(
1) of
TADA, the confessions recorded cannot be looked into to
establish the guilt under the aforesaid Acts. Hence, the
conviction of the accused under Sections 7 and 25(1A)
of
the Arms Act and Sections 4, 5 and 6 of the Explosive
Substances Act cannot also be allowed to stand.”
(emphasis supplied)
24. Even in the present case, it is noticed that the
prosecution has essentially relied upon the confessional
statement of the accused recorded under the provisions of
TADA. That will be of no avail and certainly not admissible
against the accused in the trial for offences under other
enactments, especially when the Designated Court could not
have taken cognizance of the offence under TADA for lack of a
valid sanction. Additionally, in the present case, the evidence
produced by the prosecution regarding search and seizure is
replete with fatal deficiencies. We do not wish to deviate from
the view taken by the Designated Court that there was no
legally admissible evidence to establish the charges against the
respondents regarding offences under other enactments (other
than TADA).
25. Having said this, it must follow that the conclusion
reached by the Designated Court, that the respondents are not
guilty of the offences for which they were charged and tried,
needs no interference for the reasons mentioned hitherto.
26. In view of the above, the appeals must fail and are
dismissed.
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Ajay Rastogi)
New Delhi;
February 27, 2019.
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