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REPORTABLE   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NOS. 1359­1361  OF  2007

The State of Gujarat       …..Appellant(s)   :Versus:

Anwar Osman Sumbhaniya and Ors.     ....Respondent(s)

J U D G M E N T

A.M. Khanwilkar, J.

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.

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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 charge­

sheets 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

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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)

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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.

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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 18­6­ 93, found from the possession of accused No.1 Anwar

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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 23­ 45 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

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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

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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

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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

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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

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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

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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 non­

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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

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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

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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

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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 (PW­

14).  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:

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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)

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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 (PW­

15) 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.

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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, RB­D­121­ Proved 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

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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:  

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“9.  In this case the prosecution relies on Ext. 63, an order issued by the Director General of Police, Ahmedabad, on 3­9­ 1993, 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

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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 non­

application 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 (PW­

13).  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 11­ 12/02/2005 by accused Anwar Osman Subhaniya.

Mark Q The further statement dated 11­ 12/02/2005 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 Wire­ less 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 PW­

13. 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.

39

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.”

40

(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 Gujarat10,  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

10 (2012) 11 SCC 606

41

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.

42

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.