Hussein Ghadially @ M.H.G.A.Shaikh Vs State of Gujarat

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REPORTABLE

CRIMINAL APPELLATE JURISDICTION

IN THE SUPREME COURT OF INDIA

CRIMINAL APPEAL NO. 92 OF 2009

Hussein Ghadially @ M.H.G.A Shaikh & Ors. …Appellants

Versus

State of Gujarat …Respondent

With

Criminal Appeals No.110 of 2009, 303-304 of 2009, 305 of

2009, 432-433 of 2009, 658-659 of 2009

J U D G M E N T

T.S. THAKUR, J.

1. Common questions of law arise for consideration in

these appeals which were heard together and shall stand

disposed of by this common order. The appeals arise out of

two separate judgments delivered by the Designated Court

at Surat both dated 4th October, 2008 whereby the

Designated Court has while acquitting some of the accused

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persons convicted the rest and sentenced them to

imprisonment for different periods ranging between 10 to 20

years. In Criminal (TADA) case No.41 of 1995 disposed of

with Criminal (TADA) case No.1 of 2000 arising out of C.R.

No.70 of 1993 relevant to Criminal Appeals No.92 of 2009

and 658 of 2009, the Designated Court has convicted the

appellants in those appeals while respondents in Criminal

Appeal No.305 of 2009 filed by the State of Gujarat against

the very same judgment have been acquitted. In Criminal

Appeals No.432-33 of 2009 the State has sought

enhancement of the sentence awarded to those convicted by

the Trial Court.

2. In Criminal (TADA) case No.59 of 1995 and 2 of 2000

arising out of C.R. No.32 of 1993 the Designated Court has

similarly convicted some of the accused persons who are

(appellants before us in Criminal Appeals No.110 of 2009

and 659 of 2009). The State has also assailed in the appeals

filed by it the judgment of the Trial Court and sought

enhancement of the sentence awarded to those convicted by

it in Criminal Appeals No.303-304 of 2009.

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3. The facts giving rise to the registration of I.C.Rs. No.32

and 70 of 1993 at Varccha and Surat Railway Police Stations

in the State of Gujarat respectively leading to the arrest of

those accused of committing the offences and their eventual

conviction by the Trial Court have been set out at great

length by the said Court below in the two judgments and

orders impugned before us. We need not, therefore,

recapitulate the entire factual backdrop in which the

appellants were tried, found guilty and sentenced except to

the extent it is absolutely necessary to do so. Suffice it to

say that the two blasts one at Mini Hira Bazar, Varccha

Road, Surat and the other at Platform 1, Surat Railway

Station took place on 28th January, 1993 and 22nd April,

1993 respectively. In the incident that took place at Mini

Hira Bazar, Varccha Road, one minor girl barely 8 years old

lost her life while as many as 11 others were injured. The

second incident at the Surat Railway Station relevant to ICR

No.70 of 1993 left as many as 38 persons injured, some of

them grievously. The prosecution case is that the genesis of

the two incidents mentioned above lay in the demolition of

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the Babri Masjid on 6th December, 1992 at Ayodhaya which

had led to wide-spread communal riots in several parts of

the country. These riots took place even in the city of Surat

causing damage to life and property to the Muslim

community. With a view to giving relief to those affected by

such riots a Relief Camp at Ranitalao area in the city of

Surat was set up mainly by the accused persons including

Hussein Ghadially, Iqbal Wadiwala, Mohammad Surti, Hanif

Tiger and others. A makeshift office adjacent to the relief

camp provided to the accused persons space to hold their

meetings.

4. The prosecution alleges that on account of riots and

damage suffered by the Muslims, the accused persons

nurtured a feeling that the Government and the police will

not be able to protect their community. The prosecution’s

further case is that in order to protect the members of the

Muslim community and also to retaliate against the majority

community the accused persons initially decided to collect

firearms, swords, spears, iron rods, country made bombs

and gelatin bombs etc. and to distribute the same to those

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who had converged in the relief camp. It was also decided to

import firearms, bombs etc. from Abdul Latif, a notorious

gangster of Ahmedabad who was known to accused No.1

Hussain Ghadially. Abdul Latif was then in Dubai but later

arrested and produced before the Designated Court. He was

killed in a police encounter during the trial.

5. According to prosecution appellant-Hussein Ghadially

and his wife alongwith Iqbal Wadiwala (A-2) went to

Ahmedabad in Maruti Van No. GJ 5A 5178 driven by one

Bhupat Makwana. In order to carry arms and ammunition

including AK 47 rifles, cartridges and bomb etc. a concealed

compartment was created in the Maruti Van that was owned

by appellant-Iqbal Wadiwala. The arms and ammunition

supplied by Abdul Latif (since deceased) were then placed in

the secret chamber of the vehicle and transported to Surat.

The prosecution alleges that the arms and ammunition to be

used were kept at different places for use to wreak

vengeance against the majority community. The blasts that

took place on 28th January, 1993 at Mini Hira Bazar, Varccha

Road, Surat and at Surat Railway Station on 22nd April, 1993

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were, according to the prosecution, the culmination of the

conspiracy hatched by the accused and the efforts made by

them including their active participation in the sordid

sequence leading up to grievous injuries to several persons

including the killing of an innocent child.

6. The prosecution further alleges that investigation into

the crime by the Surat Railway Police did not lead to the

apprehension of the real culprits. This forced the Director

General of Police of the State of Gujarat to constitute an

Action Group for inquiry and investigation into the crime. In

the course of investigation by the Action Group, one

Mushtaq Patel was apprehended on 12th March, 1995 in

connection with a case registered in Umra Police Station

under the Arms Act. In the course of interrogation the said

Mushtaq Patel revealed information relating to the bomb

blast at Platform No.1 at Surat Railway Station. This gave

the Action Group a break that led to a series of arrest of

persons responsible for the blasts and recovery of arms and

ammunition comprising as many as 6 foreign grenades, 2 AK

47 rifles and 199 live cartridges. The arrest of accused

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persons and the seizure of arms and ammunition in turn led

to invocation of provisions of Terrorists and Disruptive

Activities (Prevention) Act by orders passed by the

Additional Commissioner of Police, G Division, Surat city

and/or by the State Government.

7. Confessional statements of the accused persons were

after the application of the provisions of the said Act

recorded by the Additional Commissioner of Police and

separate chargesheet in both FIRs filed before the

Designated Court in which accused Yusuf Dadu was shown

as absconding. Yusuf Dadu was subsequently apprehended

and a supplementary chargesheet in both the cases filed

against him which came to be numbered as TADA cases

No.1 and 2 of 2000 in relation to the two incidents

aforementioned. Before the Designated Court the accused

persons pleaded not guilty and claimed a trial.

8. At the trial the prosecution examined as many as 120

witnesses in TADA case No. 41 of 1995 with 1 of 2000 and

105 witnesses in TADA case No. 59 of 1995 with 2 of 2000.

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The accused did not lead any defence. The Trial Court

eventually found some of the accused persons guilty while

some others were acquitted giving them the benefit of

doubt. Those found guilty were sentenced to imprisonment

ranging between 10 to 20 years details whereof may be

summarised as under:

S. No.

Appella nt/Accu sed

Accused -Appeal No.

Conviction by Designated Court in TADA Case no. 41/1995 and 1/2000 arising out of C.R. No. 70/1993

(Railway Station)

Maximum Sentence awarded by Designated Court in TADA Case no. 41/1995 and 1/2000

Conviction by Designated Court in TADA Case no. 59/1995 and 2/2000 arising out of C.R. No. 32/1993

(Mini Hira Bazar)

Maximum Sentence awarded by Designated Court in TADA Case no. 59/1995 and 2/2000

1 Husein Ghadially A1

92 of 2009 and 110 of 2009

s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, 325 and 324 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act.

10 years RI s. 3(2)(i) of TADA r/w 120B IPC, 5 of TADA, s. 302 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act.

20 years RI

2 Iqbal Wadiwala A2

92 of 2009 and 110 of 2009

s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, 325 and 324 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act.

10 years RI s. 3(2)(i) of TADA r/w 120B IPC, 5 of TADA, s. 302 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act.

20 years RI

3 Mohamma d Gulam @ Mohamma d Surti

A3

92 of 2009 and 110 of 2009

s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, 325 and 324 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act.

10 years RI s. 3(2)(i) of TADA r/w 120B IPC, 5 of TADA, s. 302 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A of Arms Act.

20 years RI

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4 Mustaq Ibrahim Patel

A4

92 of 2009 and 110 of 2009

s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, 325 and 324 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A & 25(1)AA of Arms Act.

10 years RI s. 3(2)(i) of TADA r/w 120B IPC, 5 of TADA, s. 302 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A & 25(1)AA of Arms Act.

20 years RI

5 Salim Chawal/Ma njro A5

92 of 2009 and 110 of 2009

s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, 325 and 324 r/w 120B IPC, s. 3(b) of Explosive Substances Act and 25 and 27 of Arms Act.

10 years RI s. 3(2)(i) of TADA r/w 120B IPC, 5 of TADA, s. 302 r/w 120B IPC, s. 3,4,5 of Explosive Substances Act and 25(1) A &25(1)AA of Arms Act.

20 years RI

6 Ahzaz Ahmed Patel

A6

92 of 2009 and 110 of 2009

s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, 325 and 324 r/w 120B IPC, s. 3(b) of Explosive Substances Act and 25 & 27 of Arms Act.

10 years RI s. 3(2)(i) of TADA r/w 120B IPC, 5 of TADA, s. 302 r/w 120B IPC, s. 3(B) of Explosive Substances Act and 25 & 27 of Arms Act.

20 years RI

7 Aziz Ibrahim Patel

110 of 2009

Acquitted

A7

___ S. 201 R/W 120B IPC A8

10 years RI

8 Mehmood @ Baba Ibrahim Master

110 of 2009

Acquitted

A8

___ s. 3(3) of TADA r/w s. 120B IPC, S. 5 of TADA, s. 5 of Explosives Substances Act, 25(1)A of Arms Act

A10

10 years RI

9 Fazal Dawood Nagori

110 of 2009

Acquitted

A9

___ s. 3(3) of TADA r/w s. 120B IPC, S. 5 of TADA, s. 5 of Explosives Substances Act, 25(1)A of Arms Act

A11

10 years RI

10 Saeed Naadi @ Abdul Saeed Abdul Mazid Navdiwala

110 of 2009

Acquitted

A10

___ s. 3(3) of TADA r/w s. 120B IPC, S. 5 of TADA, s. 5 of Explosives Substances Act, 25(1)A of Arms Act

A12

10 years RI

11 Baba @ Abdul Khalik Ali Mohamma d Shaikh

110 of 2009

S. 6 of TADA r/w s. 120B IPC

A9

10 years RI

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12 Yusuf Dadu @ Yusuf @ Yaasin @ Abdulla Gulam husen Nalband

658 of 2009

and 659 of 2009

s. 3(2)(ii) of TADA r/w 120B IPC, 5 of TADA, 307, 326, 325 and 324 r/w 120B IPC, s. 3(b) & 5 of Explosive Substances Act r/w s. 120B IPC and 25(1) A of Arms Act. A11

10 years RI s. 3(2)(i) of TADA r/w 120B IPC, 5 of TADA, s. 302 r/w 120B IPC, s. 3(b) & 5 of Explosive Substances Act and 25(1) A of Arms Act.

LI for 20 years

9. Appearing for the appellants Mr. Sushil Kumar, learned

Senior Counsel, strenuously argued that the trial and

conviction of the appellants for offences with which they

were charged is vitiated for breach of the mandatory

provisions of Section 20-A (1) of The Terrorist and

Disruptive Activities Act (TADA). That provision it was

contended required approval of the District Superintendent

of Police for recording of any information about the

commission of an offence punishable under the said Act. No

such approval was, however, either sought from or granted

by the District Superintendent of police concerned. Approval

for recording of the information was instead obtained from

the Additional Chief Secretary, Home Department,

Government of Gujarat who had no power to grant the same

under the Act. So also the purported approval from the

Additional Police Commissioner, Surat was of no legal effect

as the power to grant such approval vested only in the

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District Superintendent of Police and could not be exercised

by the Additional Commissioner of Police or anyone holding

an equivalent rank. The power to grant approval being a

sina qua non for recording of any information about the

commission of any offence under the Act, absence of such

approval was according to Mr. Sushil Kumar sufficient by

itself to vitiate any trial that was held in breach of the said

provision. Reliance in support of that submission was placed

by Mr. Kumar upon several decisions of this Court including

one in Aniruddhsinhji Jadeja & Anr. v. State of Gujarat

(1995) 5 SCC 302 to which we shall presently turn. It was

contended that the conviction and sentence of the appellants

ought to be set aside not only because the provision of

Section 20-A (1) is mandatory but also because the power

to grant approval for recording of information about the

commission of an offence under the Act could be exercised

only by the authority concerned under such provision and by

nobody else. The designated authority could not, contended

Mr. Kumar abdicate the exercise of power in favour of any

other authority, no matter such other authority was higher

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in rank to the designated authority. It was also contended

that if the law prescribes a particular procedure for doing a

particular thing then any such thing could be done only in

the manner prescribed or not at all. Inasmuch as the

procedure prescribed by law which required the approval of

the competent authority to grant approval for recording the

information had not been followed, the trial and conviction

of the appellants in breach of a mandatory provision was

legally unsustainable.

10. Mr. Yashank Adhyaru, learned Counsel for the State of

Gujarat, on the other hand, contended that there was in the

present cases no requirement of prior approval for recording

information about the commission of offences under TADA

inasmuch as the first information reports about the two

incidents were registered on 28th January, 1993 and 22nd

April, 1993 whereas Section 20-A (1) was inserted in the Act

subsequently on 22nd May, 1993. Alternatively it was

contended by the learned counsel that the approvals granted

by the Government and the Additional Police Commissioner

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were valid and substantially complied with the requirements

prescribed under Section 20-A (1).

11. Before we deal with the contentions urged at the bar

we need to sail smooth on the facts relevant to the

registration of the two FIRs. The first case relevant to the

blast at Mini Hira Bazar, Varaccha Road, led to registration

of C.R. No.32 of 1993 not only for commission of offences

under the IPC and Explosive Substances Act but also under

TADA. Almost one year after the registration of the FIR, on

24th January, 1994 the Police Commissioner, Surat

instructed Varaccha Police Station to remove the TADA

provision from C.R. No.32 of 1993. These instructions came

in the wake of a decision taken by the TADA Review

Committee in its meeting held on 24th January, 1994. The

instructions were carried out and TADA offences deleted

from the two cases in hand. Subsequent to the deletion of

TADA from C.R. No.32 of 1993, a request was made by P.C.

Pandey Police Commissioner, Surat to the Home

Department, Government of Gujarat for re-application of the

provisions of TADA. The Police Commissioner pointed out

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that a Russian made hand grenade was used in the blast.

Approval for re-application of TADA provisions was pursuant

to the said request granted by the Additional Chief

Secretary, Home Department, Government of Gujarat on

12th May, 1995 and intimated to the Additional

Commissioner of Police, Surat. In his letter dated 8th May,

1995, the Police Commissioner, Surat City sought approval

for reintroduction of TADA provisions in the following words:

“In the offence registered at Varacha Police Station, explosion was done by a Russian made grenade which was revealed when accused were arrested in Surat Railway P.St. O. Reg. No.I 60/93. Hence it is required that in Varacha Police Station I O.Reg. No. 32/93 sections of 302, 307, 324, 326, 120(B) of I.P.C. and Sections 3,4,5 of Explosives Substances Act and Sections 3 and 5 of Tada Act are required to be added. Hence sanction to add Sections of Tada may be given.

Yours faithfully,

(P.C.Pande) Police Commissioner Surat City”

12. Approval dated 12-05-1995 granted by the Additional

Chief Secretary, Home Department was pursuant to the

above request communicated to the Police Commissioner,

Surat City in the following words:

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“To Police Commissioner Surat City, Surat

Subject: Varacha P.St.I.O.Reg.No.32/93 Sanction of Tada

Sir,

This is to inform you with respect to above subject regarding your fax message No. RB/100/1995 dt. 8.5.95 in the case registered at Varacha P.St.(First) O.Reg. No.32/93:-

Additional Chief Secretary, Home Department has given sanction to apply the Sections of Tada.

Yours faithfully, Sd/- Illegible (R.B.Thakkar) Section Officer Home Department (Special)”

13. Insofar as the second blast that took place on Platform

No.1 Surat Railway Station on 22nd April, 1993 is concerned,

C.R. No.70 of 1993 registered in connection therewith was

not only under the provisions of the IPC and the Explosives

Substances Act but also under Sections 3 and 7 of TADA.

The TADA provisions were, however, subsequently removed

in this case also pursuant to the decision taken by the

Government on the basis of the TADA Review Committee’s

recommendations and the deletion intimated to the

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competent Court at Surat. On 12th April, 1995, however,

Additional Police Commissioner Range 2, Surat City

approved the re-introduction of Sections 3(1), 3 (2), 3(3),

3(4) and 5 of TADA Act to C.R. No.70 of 1993 registered in

connection with the said blast. The addition was accordingly

made by the investigating officer and intimated to the

designated Judge appointed under the TADA. This is evident

from the following passage appearing in the letter dated 13th

April, 1995 addressed by the investigating officer to the

designated Court:

“ K.C. Parmar, P.S.I. of Action Group hereby reports that:-

Section 3(1)(2)(3)(4) and Section 5 of TADA Act have been added in Surat Railway P.St. O.Reg. No. I 70/93 u/sec 307, 326, 324, 427, 120B of IPC and U/sec 3,5,7 of Explosive Substances Act. According to the new provisions of TADA Act, sanction of Additional Police Commissioner Range-2 Surat City has been obtained which is enclosed herewith the case papers.

Hence this is to inform you that Sections 3(1)(2)(3) (4) and Section 5 of TADA Act have been added in this offence which please note.

Date: 14.4.95 Sd/ - Illegible

(K.C.Parmar) P.S.Inspector

Action Group, Surat City”

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14. What is interesting is that even after the provisions of

TADA had already been introduced with the approval of the

Additional Police Commissioner, Range 2, Surat City, the

Government appears to have been approached for grant of

approval for introduction of the TADA in C.R. No.70 of 1993

which approval was granted by the Additional Chief

Secretary, Home Department and conveyed to the

designated court by the Assistant Police Commissioner, G

Division, Surat City in terms of his letter dated 12th May,

1995. The relevant portion of the letter conveys the

Additional Chief Secretary, Home Department’s approval for

introduction of the TADA. It reads as under:

“K.K. Chudasma (I.O) Assistant Police Commissioner Surat City “G” Division reports that:-

Sanction of Additional Chief Secretary Home Department has been received vide Fax Message No./ V2/ATK/2893/2768 Home Department, Block No.2, Sardar Bhavan, Sachivalaya, Gandhinagar dt. 15.4.95 has been received with the signature of Section Officer Home Department (Special) for application of Sections of TADA Act in Surat Railway Police Station I.O. Reg. No.70/93 registered u/sec 307, 326, 324, 427, 120(B) of IPC and u/sec. 3, 4, 5 of Explosive Substances Act. Sanction letter Fax message is enclosed along with the case papers which please note.

Date:12.5.95 Sd/Illegible

Received Copy (K.K. Chaudasma)

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Sd/- Illegible Assistant Police Commissioner

Jr. Clerk G. Division, Surat City”

15. It is in the light of the above evident that in C.R.No.32

of 1993 approval for recording of information regarding

commission of offences under the TADA came directly from

the Home Department of the Government of Gujarat. In

C.R. No.70 of 1993 relating to the second blast that took

place at Surat Railway Station, the State Government and

the Additional Police Commissioner, Surat city approved the

application of the provisions of TADA.

16. What falls for determination is whether these approvals

can be said to be sufficient compliance with the provisions of

Section 20-A of TADA that reads as under:-

“20-A Cognizance of offence.

(1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.

(2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police, or as the case may be, the Commissioner of Police.”

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17. A careful reading of the above leaves no manner of

doubt that the provision starts with a non obstante clause

and is couched in negative phraseology. It forbids recording

of information about the commission of offences under TADA

by the Police without the prior approval of the District

Superintendent of Police. The question is whether the power

of approval vested in the District Superintendent of Police

could be exercised by either the Government or the

Additional Police Commissioner, Surat in the instant case.

Our answer to that question is in the negative. The reasons

are not far to seek. We say so firstly because the statute

vests the grant approval in an authority specifically

designated for the purpose. That being so, no one except

the authority so designated, can exercise that power.

Permitting exercise of the power by any other authority

whether superior or inferior to the authority designated by

the Statute will have the effect of re-writing the provision

and defeating the legislature purpose behind the same - a

course that is legally impermissible. In Joint Action

Committee of Air Line Pilots’ Association of India

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(ALPAI) and Ors. V. Director General of Civil Aviation

and Ors. (2011) 5 SCC 435, this Court declared that even

senior officials cannot provide any guidelines or direction to

the authority under the statute to act in a particular manner.

18. Secondly, because exercise of the power vested in the

District Superintendent of Police under Section 20-A (1)

would involve application of mind by the officer concerned to

the material placed before him on the basis whereof, alone a

decision whether or not information regarding commission of

an offence under TADA should be recorded can be taken.

Exercise of the power granting or refusing approval under

Section 20-A (1) in its very nature casts a duty upon the

officer concerned to evaluate the information and determine

having regard to all attendant circumstances whether or not

a case for invoking the provisions of TADA is made out.

Exercise of that power by anyone other than the designated

authority viz. the District Superintendent of Police would

amount to such other authority clutching at the jurisdiction

of the designated officer, no matter such officer or authority

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purporting to exercise that power is superior in rank and

position to the officer authorised by law to take the decision.

19. Thirdly, because if the Statute provides for a thing to

be done in a particular manner, then it must be done in that

manner alone. All other modes or methods of doing that

thing must be deemed to have been prohibited. That

proposition of law first was stated in Taylor v. Taylor

(1876) 1 Ch. D426 and adopted later by the Judicial

Committee in Nazir Ahmed v. King Emperor AIR 1936

PC 253 and by this Court in a series of judgments including

those in Rao Shiv Bahadur Singh & Anr. v. State of

Vindhya Pradesh AIR 1954 SC 322, State of Uttar

Pradesh v. Singhara Singh and Ors. AIR 1964 SC 358,

Chandra Kishore Jha v. Mahavir Prasad & Ors. 1999

(8) SC 266, Dhananjaya Reddy v. State of Karnataka

2001 (4) SCC 9 and Gujarat Urja Vikas Nigam Ltd. V.

Essar Power Ltld. 2008 (4) SCC 755. The principle stated

in the above decisions applies to the cases at hand not

because there is any specific procedure that is prescribed by

the Statute for grant of approval but because if the approval

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could be granted by anyone in the police hierarchy the

provision specifying the authority for grant of such approval

might as well not have been enacted.

20. In Anirudhsinhji & Anr. v. State of Gujarat (1995)

5 SCC 302 relied upon by Mr. Sushil Kumar, this Court was

dealing with a fact situation where a case was registered

initially under the Arms Act. The District Superintendent of

Police had instead of giving approval for recording

information himself made a report to the Additional Chief

Secretary asking for permission to proceed under TADA.

The Deputy Director General and Additional Director General

of Police also sent fax messages to the Chief Secretary

requesting him to grant permission to proceed under TADA.

It was on that basis that the Additional Chief Secretary,

Home Department gave sanction/consent to proceed under

the provisions of TADA. The question that fell for

consideration before this Court was whether Section 20-A

(1) was violated and, if so, whether the prosecution of the

accused in that case was legally valid. Repelling the

contention that the approval was valid this Court observed:

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“11. The case against the appellants originally was registered on 19-3-1995 under the Arms Act. The DSP did not give any prior approval on his own to record any information about the commission of an offence under TADA. On the contrary, he made a report to the Additional Chief Secretary and asked for permission to proceed under TADA. Why? Was it because he was reluctant to exercise jurisdiction vested in him by the provision of Section 20-A(1)? This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority’s instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20-A(1) was not exercised by the DSP at all.”

21. This Court relied upon the decision in Commissioner

of Police v. Gordhandas Bhanji AIR 1952 SC 16 where

the Commissioner of Police had at the behest of the State

Government cancelled the permission granted for

construction of a cinema in Greater Bombay. The order

passed by the Commissioner was quashed on the ground

that the authorities concerned had vested the power to

cancel in the Commissioner alone who was bound to

exercise the same himself and bring to bear on the matter

his own independent and unfettered judgment instead of

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acting at the instance of, any other party. This Court

borrowed support for that view from the following passage

by Wade and Forsyth in ‘Administrative Law’, 7th Edition

Page Nos.358-359 under the heading ‘SURRENDER

ABDICTION, DICTATION’ and sub-heading ‘power in the

wrong hands’:

“Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with some one else, or may allow some one else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them....

Ministers and their departments have several times fallen foul of the same rule, no doubt equally to their surprise...”

22. Anirudhsinhji (supra) was followed in Manohar Lall

(dead) by Lrs. V. Ugrasen (dead) by Lrs. and Ors.

(2010) 11 SCC 557 where the question that fell for

consideration was whether the State Government, exercising

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revisional power under U.P. Urban Planning and

Development Act, 1973, could take up the task of a lower

statutory authority. Relying upon the view taken in

Anirudhsinhji case (supra) this Court observed:

“23. Therefore, the law on the question can be summarised to the effect that no higher authority in the hierarchy or an appellate or revisional authority can exercise the power of the statutory authority nor can the superior authority mortgage its wisdom and direct the statutory authority to act in a particular manner. If the appellate or revisional authority takes upon itself the task of the statutory authority and passes an order, it remains unenforceable for the reason that it cannot be termed to be an order passed under the Act.”

23. That Section 20-A (1) is mandatory is also no longer

res integra having been settled by this Court in Rangku

Dutta @ Ranjan Kumar Dutta v. State of Assam (2011)

6 SCC 358. This Court in that case held that since the

provision was couched in negative terms, the same is

mandatory in nature no matter the statute does not provide

any penalty for disobedience. This Court observed:

“18. It is obvious that Section 20-A(1) is a mandatory requirement of law. First, it starts with an overriding clause and, thereafter, to emphasise its mandatory nature, it uses the expression “No” after the overriding clause. Whenever the intent of a statute is mandatory, it is clothed with a negative

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command. Reference in this connection can be made to G.P. Singh’s Principles of Statutory Interpretation, 12th Edn.”

24. Relying upon Ahmad Umar Saeed Sheikh v. State of

U.P. (1996) 11 SCC 61, this Court has in Ashrafkhan @

Babu Munnekhan Pathan and Anr. v. State of

Maharashtra (2012) 11 SCC 606 not only held that the

approval given by the Chief Secretary (Home Department)

of the State Government was not a sufficient compliance

with Section 20-A (1) but also that the difficulty arising out

of it was not curable under Section 465 of the Code. This

Court observed:

“34. ……… Section 465 of the Code, which falls in Chapter 35, covers cases triable by a Court of Session also. Hence, the prosecution can take shelter behind Section 465 of the Code. But Section 465 of the Code shall not be a panacea for all error, omission or irregularity. Omission to grant prior approval for registration of the case under TADA by the Superintendent of Police is not the kind of omission which is covered under Section 465 of the Code. It is a defect which goes to the root of the matter and it is not one of the curable defects.”

25. This Court also rejected the argument that grant of

sanction in terms of Section 20-A(2) of the Act rendered the

infirmity in the approval under Section 20-A(1)

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inconsequential. This Court held that the two provisions

operate in different and distinct stages and that both the

requirements have to be complied with for a successful

prosecution. The following passage is in this regard

apposite:

“37. ……. Both operate in different and distinct stages and, therefore, for successful prosecution both the requirements have to be complied with. We have not come across any principle nor are we inclined to lay down that in a case in which different safeguards have been provided at different stages, the adherence to the last safeguard would only be relevant and breach of other safeguards shall have no bearing on the trial. Therefore, we reject the contention of the State that the accused cannot assail their conviction on the ground of absence of approval under Section 20-A(1) of TADA by the Deputy Commissioner, when the Commissioner of Police had granted sanction under Section 20-A(2) of TADA.”

26. In two subsequent decisions rendered by this Court in

Mohd. Iqbal M. Shaikh & Ors. v. The State of

Maharashtra (1998) 4 SCC 494 and Manjit Singh @

Mange CBI, through its SP: (2011) 11 SCC 578 a

slightly liberal view has been taken but having regard to the

fact that Anirudhsinhji’s case (supra) was decided by a

three-Judge Bench of this Court, we do not see any

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compelling reason to depart from the ratio of that decision

especially when the view taken in that decision proceeds on

sound and well settled legal principles to which we have

briefly adverted in the earlier part of this judgment.

27. The upshot of the above discussion, therefore, is that

the requirement of a mandatory statutory provision having

been violated, the trial and conviction of the petitioners for

offences under the TADA must be held to have been vitiated

on that account. The argument that the first information

report regarding the two incidents had been registered

before the introduction of Section 20-A (1) in the statute

book making approval of the competent authority

unnecessary has not impressed us. It is true that the two

incidents had taken place and cases registered regarding the

same under TADA before Section 20-A (1) came on the

statute book, but the fact remains that the provisions of

TADA were removed from the reports pursuant to the

recommendations of the Review Committee. By the time

fresh evidence came to light requiring re-introduction of the

provisions of the Act approval for recording information

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regarding commission of offences under TADA, had become

necessary. The fact that such approval was considered

necessary even by the investigating agency and was prayed

for, only shows that the authorities were aware of the

requirement of law and had consciously attempted to comply

with the said requirement no matter by applying for such

approval to an authority not competent to grant the same.

28. Mr. Yashank Adhyaru next argued that even if the

provisions of TADA were not available against the appellants

the prosecution could still succeed in sustaining the

conviction of the appellants under IPC and the Explosive

Substances Act. That would indeed be so, provided there is

enough evidence on record to support that course of action.

When called upon to show evidence that could warrant

conviction of the appellants independent of provisions of

TADA and the confessional statements of the accused

allegedly recorded under the said provisions, Mr. Yashank

Adhyaru fairly conceded that while there may be evidence

regarding recovery of some of the weapons the same would

not by itself be sufficient to justify the conviction of the

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appellants. Even otherwise the recovery of the weapons is

also not satisfactorily proved by cogent and reliable

evidence. Such being the position, we have no manner of

doubt left that the conviction of the appellants cannot be

sustained.

29. We accordingly allow Criminal Appeals No.92 of 2009,

110 of 2009 and 658-659 of 2009 and set aside the orders

of conviction passed against the appellants who shall be

released from custody forthwith unless required in any other

case. Criminal Appeals No.303-304 of 2009, 305 of 2009

and 432-433 of 2009 filed by the State of Gujarat shall,

however, stand dismissed.

……………………………………….……….…..…J. (T.S. THAKUR)

…………………………..…………………..…..…J. New Delhi (C. NAGAPPAN) July 18, 2014

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HUSSEIN GHADIALLY @ M.H.G.A.SHAIKH Vs STATE OF GUJARAT

HUSSEIN GHADIALLY @ M.H.G.A.SHAIKH Vs STATE OF GUJARAT