REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 1692 OF 2009

EBHA ARJUN JADEJA & ORS.    …APPELLANT(S)   

Versus

THE STATE OF GUJARAT        …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

1. This  appeal  by the  accused  is  directed against the  order

passed by the Designated TADA Court whereby the application

filed by the accused that they should be discharged due to non­

compliance of Section  20­A(1) of the Terrorist and  Disruptive

Activities (Prevention) Act, 1987 (hereinafter referred to as ‘TADA

Act”) was dismissed.  

2.  Briefly stated the facts of  the case are that appellant no.

1/accused no. 1, Ebha Arjun Jadeja, was wanted in Crime No. II­

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3/1994 registered against him under Section 25(1B)(a) and 27 of

the Arms Act, 1959 and under Section 3 and 5 of TADA Act etc.   

3. The prosecution version is that on 10.04.1995, when Police

Inspector C.J. Singh along with some other police personnel was

doing night round in Kutiyana and was trying to keep a secret

watch over bootleggers, he received some information that

appellant no. 1, who was absconding in Crime No. II­3/1994, was

coming to his village  in a motor vehicle.  The police  inspector

arranged two witnesses and after preparing preliminary

panchnama, left Kutiyana in a Government jeep at about 1.00­

1.15 a.m.  They set up a naka and at about 2.45 a.m., one motor

vehicle  came  from  the side  of village  Garej.   The vehicle  was

asked to stop and it stopped.  Accused no. 1 was found sitting on

the driver’s seat.  The police cordoned the motor vehicle in which

two other persons (appellant nos.2 and 3) were also sitting.   All

these three persons were asked to get down and disclose their

identities.   On making personal search of these three persons,

following recoveries were made:

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S. No.

Name of the accused Recoveries

1. Ebha Arjun Jadeja 1. One foreign made 9mm beretta pistol and three live cartridges and one fired cartridge, valued at Rs.1,50,150/­.

2. One 32 bore foreign made revolver and 5 live cartridges, valued at Rs. 50,250/­.

3. One fired cartridge 2. Bachchu Bhikha Mer One 315 bore country made

tamancha, valued at Rs. 3,000/­.

3. Keshu Chana Mer One 12 bore country made tamancha, valued at Rs. 2,000/­.

4. The three accused persons could not produce any licence

and the aforesaid arms were seized.  Though the first information

report (FIR) was recorded under the Arms Act, in the very same

FIR, the officer also recorded as follows:

“One 9 MM semi automatic prohibited foreign made pistol and its cartridges loaded in it and Japan made revolver and its cartridges in a loaded condition were found from Mer Ebha Arjan.  Out of which, it becomes from the smell coming from  the barrel  of the  pistol  and box  that the same is used before some time for firing.   From the two persons with Jadeja Ebha Arjan, namely, Mer Bachu Bhima and Mer  Keshu Chana also, two country  made tamanchas are found and Mer Ebha Arjan is a gang

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leader of gundas in Porbandar area and in that circumstances, the  persons as  above are found in an Ambassador car no.GJ­M­8905 and it appears that they are going to commit any terrorist activity and so all the three persons were legally arrested for the offence under Sections 25(1)(Ba), 27 of the Arms Act and Section 135 of the Bombay Police Act and motor car Ambassador no.GJM­8905 valuing at Rs.100000/­ was also seized in this case.   

Hence,  it is my complaint against them for the offence under Sections 25(1)(BA), 27 of the Arms Act and Section 135 of the Bombay Police Act.  My witnesses are panchas with  me and  the police  personnel  and others  who are found during the investigation.

The above persons were found in possession of weapons and cartridges  from out of  the weapons and explosives mentioned in Arms Rules 1962 Schedule­1 Class­1 and Class­3(A) Column no.2 and 3 in public area and hence, as the offence under Section 5 of TADA Act is also made out and so, arrangement is made for obtaining the sanction of the District Superintendent of Police, Porbandar under Section 20(A)(1) of the Act, by making a report along with copies of the panchnama and F.I.R. and identification sheets of the accused.”

5. Thereafter on the same  day i.e. 10.04.1995, the  District

Superintendent  of  Police  granted sanction to  add Section 5  of

TADA Act to the offences already registered.  The grievance of the

appellants is that in terms of Section 20­A(1) of  TADA Act, no

information  about commission  of offence  under the  Act could

have been recorded without approval of the District

Superintendent of Police.   Therefore, it is contended that the

entire initiation of the action wherein the Crime No.II.28/1995

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was recorded without sanction of the District Superintendent of

Police, vitiates the entire proceedings in so far as they have been

initiated under TADA Act.   

6. Section 20­A of TADA Act reads as under:

“20­A.  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.”

The language of the Section is mandatory in nature.  It starts

with a non­obstante clause.   It forbids the recording of

information about the commission of offence under TADA Act by

the police without prior approval of the District Superintendent of

Police.

7. The provisions of Section 20­A(1) are mandatory.  This issue

is no longer  res integra.   In  Rangku Dutta @ Ranjan Kumar

Dutta  v.  State of Assam1,  this Court held that the provision,

which was couched  in negative terms  is mandatory  in nature.

Relevant portion of the judgment reads as under:  

1 (2011) 6 SCC 358

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“18.  It is  obvious that  Section 20­A(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  command.  Reference  in  this connection can be made to  G.P. Singh’s  Principles of Statutory Interpretation, 12th Edn.…”

8. Learned counsel for the appellants also placed reliance on

the judgment of this Court in  Anirudhsinhji Karansinhji

Jadeja & Anr. v. State of Gujarat2.  In this case, the case was

registered against the accused initially under the Arms Act.  The

District Superintendent of Police, instead of giving approval for

recording information, made a report to the Additional Chief

Secretary, seeking permission to proceed under TADA Act.

Thereafter, the Additional Chief Secretary, Home Department,

gave sanction to proceed under TADA Act.  Dealing with the issue

whether Section 20­A(1) was violated and whether the

prosecution was, therefore, vitiated, this Court has observed as

under:

“11.  The case against the appellants originally was registered on 19­3­1995 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

2 (1995) 5 SCC 302

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provision of Section 20­A(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 20­A(1) was not exercised by the DSP at all.”

9. Similar matter came up before this Court in Ashrafkhan &

Anr.  v.  State of Gujarat3.   Dealing with the issue of the

consequences of non­compliance of Section 20­A(1) of TADA Act,

this Court held as follows:

27.  It is worth mentioning here that TADA, as originally enacted, did not contain this provision and it has been inserted by Section 9 of the Terrorist and Disruptive Activities (Prevention) Amendment Act, 1993 (43 of 1993). From a plain reading of the aforesaid provision it is evident that no information about the commission of an offence shall be recorded by the police without the prior approval of the District Superintendent of Police. The legislature, by using the negative word in Section 20­A(1) of  TADA,  had made  its intention clear.  The scheme of TADA is different than that of ordinary criminal statutes and, therefore, its provisions have to be strictly construed. Negative words can rarely be held directory. The plain, ordinary grammatical meaning affords the best guide to ascertain the intention of the legislature. Other methods to understand the  meaning of the statute is resorted to if the language is ambiguous or leads to absurd result. No such situation exists here. In the face of it, the  requirement  of  prior  approval  by the District Superintendent of Police, on principle, cannot be said to be directory in nature.”

3 (2012) 11 SCC 606

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Thereafter, reference was made to the various judgments of this

Court and it was held as under:

“37.  The plea of the State is that the Commissioner of Police having granted the sanction under Section 20­A(2) of TADA, the conviction of the accused cannot be held to be bad only on the ground of absence of approval under Section 20­A(1) by the Deputy Commissioner. As observed earlier, the provisions of TADA are stringent and consequences are serious and in order to prevent persecution, the legislature in its wisdom had given various safeguards at different stages. It has mandated that no information about the commission of an offence under TADA shall be recorded by the police without the prior  approval  of the District  Superintendent  of  Police. Not only this, further safeguard has been provided and restriction has been put on the court not to take cognizance of any offence without the previous sanction of the Inspector General of Police or as the case may be, the Commissioner of Police. 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 20­A(1) of TADA by the Deputy Commissioner, when the Commissioner of Police had granted sanction under Section 20­A(2) of TADA.”

The Court further held that non­compliance of Section 20­A was

not a curable defect and could not be cured in terms of Section

465 of Code of Criminal Procedure, 1973 (CrPC).

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10. Thereafter in  Hussein Ghadially & Ors.  v.  State of

Gujarat4, this Court dealing with Section 20­A of TADA Act held

as follows:

“21. 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…….”  

Thereafter, reference was made to the various judgments of this

Court and it was held as under:

“29.  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 TADA must be held to have been vitiated on that account…..”

11. The law is therefore, clear that if Section 20­A(1) of TADA

Act is not complied with, then it vitiates the entire proceedings.

12. On behalf of the respondents, it is urged that in terms of

Section 154(1) of CrPC, an FIR has to be lodged whenever

information of commission of a cognizable offence is received.  It

is also urged that Section 20­A(1) of TADA Act bars the recording

of information but it does not specifically bar registration of the

FIR under the Arms Act.   It is also urged that the District

4 (2014) 8 SCC 425

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Superintendent of Police has to take a decision and, therefore,

some information has to be placed before him and then only he

can decide whether the sanction should be granted or not.  As far

as the last submission is concerned, there can be no quarrel with

respect to the same.  Obviously, information will have to be given

to the District Superintendent of Police but this information can

be in the nature of a communication specifically addressed to the

District Superintendent of Police and not in the nature of

information being recorded in the  Register  or  Book meant for

recording of  information under Section 154 of CrPC.   We may

refer to the opening portion of Section 154 of CrPC, which reads

as under:

“154. Information in cognizable cases.­(1) Every information relating to the  commission of  a  cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf:

xxx xxx xxx”

13. The word ‘FIR’ is not used in Section 154 of CrPC, though it

is now commonly used with regard to information recorded under

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Section 154.   Therefore, whenever information relating to

commission of a cognizable offence is given orally then the officer­

in­charge of the police station is bound to record that information

in a book to be kept for such offences in such form as the State

Government may prescribe  in  this  behalf.  What  is  prohibited

under Section 20­A(1) of TADA Act is the recording of

information.   We can presume that the Legislature while

introducing Section 20­A(1) in TADA Act was also aware of the

provisions of Section 154 of CrPC.   Therefore, the clear­cut

intention was that no information of commission of an offence

under TADA Act would be recorded by the police under Section

154 of CrPC without sanction of the competent authority.   The

reason why Section 20­A(1) was introduced into TADA Act in the

year  1993 by  amendment  was that  because the  provisions  of

TADA Act were very stringent, the Legislature felt that a senior

official should look into the  matter to  ensure that  an  offence

under TADA is made out and then grant sanction.

14. The bar under Section 20­A(1) of TADA Act applies to

information recorded under Section 154 of CrPC.   This bar will

not apply to a  rukka  or  a communication sent  by the  police

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official to the District Superintendent of Police seeking his

sanction.   Otherwise, there could be no communication seeking

sanction, which could not have been the purpose of TADA Act.    

15. Each case  is to be decided on  its  own  facts.  The police

official, not being the District Superintendent of Police, may

receive information of commission of an offence and may reach

the scene of a crime.  He can record the information on the spot

and then send a rukka to the police station for recording of FIR.

There may be cases of serious offences like murder, rape,

offences under Narcotic Drugs and Psychotropic Substances Act,

1985, Protection of Children from Sexual Offences (POCSO) Act,

2012  etc.  where  any  delay in investigation is fatal.   In these

cases, the police officer is entitled to record the information some

of which may indicate an offence under TADA Act, also because

non­recording of the information with regard to the main offence

may delay the investigation and hamper proper investigation in

the matter.   In such cases, while recording the information and

recording the FIR, for the offences falling under TADA Act, the

police officials concerned can approach the District

Superintendent of  Police for  sanction under Section 20­A(1)  of

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TADA Act.   The investigation in serious cases of murder, rape,

smuggling,  narcotics, POCSO Act etc. cannot  be  delayed  only

because TADA Act is also involved.

16. At the same time, where the information basically discloses

an offence under TADA Act and the other offence is more in the

nature  of  an ancillary  offence then  the information cannot  be

recorded without complying with the provisions of Section 20­A(1)

of TADA Act.   This will have to be decided in the facts of each

case.   In the case in hand, the only information recorded which

constitutes an offence is the recovery of the arms.   The police

officials must have known that the area is a notified area under

TADA Act and, therefore, carrying such arms in a notified area is

itself an offence under TADA Act.  It is true that this may be an

offence under the Arms Act also but the basic material for

constituting an offence both under the Arms Act and TADA Act is

identical i.e. recovery of prohibited arms in a notified area under

TADA Act.  The evidence to convict the accused for crimes under

the Arms Act and TADA Act is also the same.  There are no other

offences of rape, murder etc. in this case.  Therefore, as far as the

present case is concerned, non­compliance of Section 20­A(1) of

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TADA Act is fatal and we have no other option but to discharge

the appellants in so far as the offence under TADA Act is

concerned.  We make it clear that they can be proceeded against

under the provisions of the Arms Act.

17. As pointed out by us above, the situation may be different

where, to give an example, the police official finds a dead body,

sees that a murder has taken place, apprehends a person, who is

running away after committing the murder and from that person

a  prohibited arm is recovered in a  notified area.   In such a

situation, the  main offence is the offence of  murder and the

offence of carrying a prohibited weapon in a notified area is the

secondary offence under TADA Act.   Here, the police official can

record the information and arrest the person for committing an

offence under Indian Penal Code,1860 but before proceeding

under TADA Act he will have to take sanction under Section 20­

A(1) of TADA Act.

18. In view of the above, the appeal is allowed, the order of the

Designated TADA Court is set aside and the appellants are

discharged from the offences under TADA Act but they may be

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proceeded against under other provisions of law, if required.

Pending application(s), if any, stand(s) disposed of.   

…………………………….J. (Deepak Gupta)

……………………………..J. (Aniruddha Bose)

New Delhi October 16, 2019

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