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Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1650 of 2011

UMARMIA ALIAS MAMUMIA

.... Appellant(s) Versus

STATE OF GUJARAT  

….Respondent

J U D G M E N T

L. NAGESWARA RAO, J.

This  Appeal  is  filed  against  the  Judgment  dated

16.06.2010 in Criminal Misc Sr. No.44 of 2010 by which the

Court of Designated Judge (TADA) at Porbandar (hereinafter

referred  to  as  the  ‘Designated  Court’)  rejected  the  bail

application filed by the Appellant under Section 439 Cr.P.C.

and Section 20 (8) of the Terrorist and Disruptive Activities

(Prevention) Act, 1987 (hereinafter referred to as the ‘Act’).  

2. Crime No. I-43 of 1994 was registered under Section 154

Cr.P.C. for offences committed under Section 121, 121A,

122, 123, 124B r/w 34 of the Indian Penal Code, Section

25 (1A), (1B) and 25(1AA) of the Arms Act, Sections 9-B of

the Explosives Act, Sections 3, 4, 5 and 6 of the Explosive

Substances Act and Sections 3, 4 and 5 of the Act.   The

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statement of one Suresh recorded under Section 108 of the

Customs Act revealed that explosive substances, powder

RDX  boxes,  bags  containing  fire  arms,  45  bags  of

weapons, 15 boxes of RDX and 225 pieces of silver ingots

were smuggled into the country and taken to Zaroli and

Dhanoli villages of Valsad District.  The first charge-sheet

was  filed  on  12.01.1995  in  which  the  name  of  the

Appellant  is  found at  serial  No.1 in column No.2 which

refers  to  persons  who  were  absconding.   The  11th

supplementary  Charge-sheet  was  filed  on  06.06.2005

wherein it was mentioned the Appellant was arrested at

1700 hrs on 10.12.2004.

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3. The involvement of the Appellant in the crime was set out

in  detail  in  the  charge-sheet  dated  06.06.2005.  The

Appellant conspired with Iqbal A Hussain and others sent

by Mustapha Majnu Sheikh from Mumbai at his residence

at  Memonwada,  Porbandar  and  finalized  the  plan  to

unload the ammunition. It was mentioned, inter alia, that

the Appellant was present at the time of delivery of RDX,

weapons  etc.  and  he  supervised  the  transport  of  some

weapons to his house. The rest of the material was loaded

in three tempos and was sent to Ghanoli village. Thereafter

the Appellant fled away to Dubai. 4. On  17.12.2010  the  Appellant  filed  Criminal  Misc.

Application No.44 of 2010 in TADA case No. 3 of 2005 in

the  Designated  Court  seeking  bail  under  Section  439

Cr.P.C. read with Section 20 (8) of Act.  The Designated

Court by its judgment dated 16.06.2010 dismissed the bail

application and held that  on perusal  of  the material  on

record,  a  prima facie case  of  Appellant’s  involvement  in

serious  offences  under  TADA  was  made  out.  The

Designated Court refused to release the Appellant on bail

after examining his confessional statement recorded under

Section 15(2) TADA.  The Court also took note of the fact

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that  the  Appellant  absconded  for  10  years  from

08.03.1994  to  10.12.2004.  Likelihood  of  tampering  of

evidence  and  witnesses  being  influenced  were  also

grounds  which  were  taken  into  consideration  by  the

Designated Court to deny bail.   The Appellant filed this

appeal challenging the validity of the said judgment dated

16.06.2010 of the Designated Court.   5. Mr. Sushil Kumar, learned Senior Counsel appearing for

the  Appellant  submitted that  the  entire  proceedings are

vitiated  due  to  no  prior  approval  being  taken  from the

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

the  TADA  Act  before  registration  of  First  Information

Report.   He  further  submitted  that  192 witnesses  have

been  cited  out  of  whom  only  25  witnesses  have  been

examined  so  far  and  there  is  no  likelihood  of  the

completion of the trial in the near future.  He also stated

that many of the other accused have either been released

on bail or had the benefit of the proceedings against them

being quashed.   He pleaded for grant of bail in view of his

long incarceration for more than 12 years.  To buttress his

submission the counsel relied upon the judgments of this

Court in  Izharul Haq Abdul Hamid Shaikh v. State of

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Gujarat  (2009)  5  SCC  283,  Ashrafkhan  v.  State  of

Gujarat (2012) 11 SCC 606 and Hussein Ghadially v.

State of Gujarat (2014) 8 SCC 425. 6. Mr. Yashank Adhyaru, learned Senior Counsel appearing

for the Respondent-State of Gujarat made an attempt to

convince  us  that  sanction  was,  in  fact,  granted  under

Section 20A (1).  According to him, there was an error in

the  order  dated  08.04.1994  which  mentioned  that

approval  was  granted  under  Section  20A  (2).   He

submitted that  a  plain  reading  of  the  said  order  would

disclose  that  the  approval  was  actually  granted  under

Section 20A (1).  He urged that the Appellant is the master

mind  of  the  conspiracy  which  resulted  in  smuggling  of

large scale arms and ammunition into the country.   He

submitted that there is every likelihood of the Appellant

fleeing justice, if released on bail. 7. Section 20-A of the Act 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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8. In  Izharul  Haq  Abdul  Hamid  Shaikh’s  case  (Supra)  this

Court granted bail to the Appellant therein.  In the said

case also the FIR was registered on 08.03.1994 relating to

the  smuggling  of  arms  and  ammunition  at  Porbandar.

This Court held that prior approval under Section 20A (1)

of  the  Act  was  a  sine  qua  non for  recording  of  First

Information Report.   The Appellant  therein was granted

relief on the ground that prior approval was not obtained

before recording the FIR.  The submission of Mr. Sushil

Kumar, who appeared for the Appellant in that case, that

prior approval under Section 20A (1) was not accorded by

the  competent  authority  was  accepted  by  Mr.  Adhyaru

who  appeared  for  the  State  of  Gujarat  in  that  case.

Mr.Adhyaru’s  submission  in  Izharul  Haq  Abdul  Hamid

Shaikh’s case that though the order of approval wrongly

mentioned Section 20A(2) it was actually an order under

Section 20A(1), was not accepted.  Mr. Adhyaru raised the

same  point  again  before  us  relying  on  order  dated

08.03.1994.  We permitted the Senior Counsel to read out

the order dated 08.03.1994 but we are not convinced that

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it was passed under Section 20A(1) and not under Section

20A(2).  9. It is no more res integra that infraction of Section         20A

(1) of  the TADA Act would vitiate the entire proceedings

and result in acquittal of the accused for offences under

the  Act.   (See:  Anirudhsinhji  Karansinhji  Jadeja  v.

State of Gujarat, (1995) 5 SCC 302; Prakash Kumar v.

State of Gujarat, (2005) 2 SCC 409; Izharul Haq Abdul

Hamid Shaikh v. State of Gujarat, (2009) 5 SCC 283;

Ashrafkhan v. State of Gujarat,  (2012) 11 SCC 606;

Hussein Ghadially v. State of Gujarat, (2014) 8 SCC

425)

10. After considering the submissions of both sides, we are

of the opinion that the Appellant is entitled to be released

on bail for the following reasons:

A. The prior approval required under Section 20A (1) of the

TADA  Act  was  not  taken  from  the  District

Superintendent of Police before the FIR was recorded.   B. Admittedly,  the  Appellant  had  been  suffering

incarceration for more than 12 years. C. Only 25 out of 192 witnesses have been examined so

far. D. There is no likelihood of the completion of trial in the

near future.   

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E. Though  there  is  a  confessional  statement  of  the

Appellant recorded under Section 15 of the TADA, the

same  cannot  be  looked  into  by  us  in  view  of  the

violation of Section 20A (1) of the TADA Act.  

11. This Court has consistently recognised the right of the

accused for a speedy trial. Delay in criminal trial has been

held  to  be  in  violation  of  the  right  guaranteed  to  an

accused under Article 21 of the Constitution of India. (See:

Supreme Court Legal Aid Committee v. Union of India,

(1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of

India, (1996) 2 SCC 616)  Accused, even in cases under

TADA, have been released on bail on the ground that they

have been in jail for a long period of time and there was no

likelihood  of  the  completion  of  the  trial  at  the  earliest.

(See:  Paramjit Singh v. State (NCT of Delhi), (1999) 9

SCC 252 and  Babba v. State of Maharashtra, (2005)

11 SCC 569).  

12. Though the Appellant is involved in serious offences and

has  absconded  for  a  period  of  10  years  before  he  was

arrested in 2004, we see no reason to confine him to jail as

he has already suffered more than 12 years in custody and

the trial may not be completed in the near future.  Taking

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note of the above, we grant relief of bail to the Appellant

subject to the following conditions: a. The Appellant will  furnish a bail  bond in the sum of

Rs.1 lakh (One Lakh only) with one surety for a similar

amount.  b. The Appellant will reside at Porbandar and report daily

to the City ‘B’ Division Police Station, Porbandar at 6:00

PM. He shall not leave the territory of Porbandar. c. If the Appellant is required to attend any Court outside

Porbandar  the  same  may  be  done  through  video

conferencing  to  be  organized  by  the  State.   If  video

conferencing cannot be arranged the Appellant will be

produced before any court, if necessary, through Escort

by the Police.   d. The  Passport  of  the  Appellant  shall  be  surrendered

before the Designated Court.  e. The Appellant shall not indulge in tampering of evidence

and influencing of witnesses.  f. The State is at liberty to move for cancellation of bail, if

the  Appellant  is  found  to  be  tampering  with  the

evidence or  causing  hindrance  to  the  progress  of  the

trial.    

13. As the case pertains to the year 1993, the Designated

Court is requested to expedite and complete the trial at the

earliest.  With the above directions, the Appeal is allowed.

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      .........................................J        [S. A. BOBDE]

              ...……................................J                                            [L. NAGESWARA RAO]

New Delhi, February 01, 2017

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