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Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No.1702 of 2011

UMARMIYA ISMAILMIYA SAIYED @ MAMUMIYA PANJU MIYA.

.... Appellant Versus

STATE OF GUJARAT  

….Respondent

J U D G M E N T

L. NAGESWARA RAO, J.

The  Court  of  Designated  Judge  (TADA)  at  Jamnagar

(hereinafter referred to as the ‘Designated Court’)  dismissed

the bail  application of  the Appellant  by a Judgment dated

31.08.2010 aggrieved by which the Appellant has filed this

Criminal Appeal.  

2. FIR No.I-151 of 1993 was registered in Jamnagar City “B”

Division Police Station under Sections 3, 4 and 5 of the

Terrorist  and  Disruptive  Activities  (Prevention)  Act,

1987(hereinafter  referred  to  as  ‘Act’)  apart  from  the

offences punishable under Section 120 B, 121, 122 B, 123

r/w 34 of IPC, Sections Section 25 (1A), (1B) and 25(1AA)

of  the  Arms Act  and Section 9-B of  the Explosives Act,

Sections 3, 4, 5, 6 and 9 of the Explosive Substances Act.

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3. The case of the prosecution is that after demolition of the

Babri Masjid in the year 1992, a conspiracy was hatched

at  Dubai  for  smuggling  of  contraband goods,  arms and

explosives to the sea cost of Gosa Bara near Porbandar.

Harun Adam Sanghar,  Usman Umar  Koreja and  others

were arrested on the basis of information received by the

police.   On  the  basis  of  their  statements,  FIR  was

registered  in  Jamnagar  City  “B”  Division  Police  Station

vide  crime  register  No.151  of  1993.  The  Appellant

masterminded  the  conspiracy  for  smuggling  a  large

quantity of arms and ammunition.  After supervising the

landing of the ammunition, the Appellant absconded and

was arrested on 12.01.2005. 4. The  Appellant  filed  Criminal  Misc  (Bail)  application  No.

380 of 2010 on the ground that a prima facie case was not

made out against him and prior approval was not taken

from the District Superintendent of Police under Section

20A (1) of the Act which vitiated the entire proceedings.

The Appellant submitted before the Designated Court that

a co-accused Usman Gani Noor Mohamad Merchant alias

Munna was granted bail on 13.03.1996 on the ground of

violation  of  Section  20A  (1)  of  the  Act,  which  was

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confirmed by this Court by an order dated 30.04.1996 in

SLP(Crl.) No. 981/96. 5. The Designated Court dismissed the bail application by an

order dated 31.08.2010 on the ground that the Appellant

was involved in serious offences and his enlargement on

bail would be detrimental to the interest of the society.   6. The  principal  contention  of  Mr.  Sushil  Kumar,  learned

Senior  Counsel,  appearing  for  the  Appellant  is  that  no

prior approval of the District Superintendent of Police was

taken  under  Section  20A  (1)  of  the  TADA  Act  before

recording the FIR.  He relied upon the judgments of this

Court in  Izharul Haq Abdul Hamid Shaikh v. State of

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.   The Counsel further

submitted that the Appellant is entitled to be released on

bail.  He further submitted that the FIR was registered on

16.07.1993  and  after  a  lapse  of  more  than  23  years

charges have not been framed till date.  7. Mr.Yashank Adhyaru,  learned Senior  Counsel  appearing

for  the  Respondent-State  of  Gujarat  submitted  that  the

Appellant is not entitled for being released on bail in view

of his involvement in serious offences under TADA, IPC,

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Arms Act, Explosives Act and Explosive Substances Act.

He further submitted that the Appellant absconded for a

period of 10 years and in the event of his being released on

bail,  there is  every likelihood of  his fleeing from justice.

He  also  expressed  his  apprehension  that  the  Appellant

would  indulge  in  tampering  with  the  evidence  and

witnesses  which  would  result  in  obstruction  of  justice.

Mr.Adhyaru justified the delay in the framing of charges

on the ground that the record has been lying in this Court

for the past five years.  8. We  have  considered  the  submissions  made  by  the

counsels  appearing  for  the  parties.    As  per  the  law

declared by this Court, Section 20A is mandatory and any

violation of the procedure prescribed therein would vitiate

the entire proceedings with respect to the TADA offences.

This Court in Izharul Haq Abdul Hamid Shaikh v. State

of Gujarat reported in (2009) 5 SCC 283 released the

Appellant therein on bail on the ground that Section 20A

(1) was violated.   9. Without  expressing  any  opinion  on  the  merits  of  the

matter, we are of the opinion that the Appellant is entitled

to be released on bail only on the ground that the FIR was

registered  on  16.07.1993  in  violation  of  the  procedure

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prescribed under Section 20A (1) of the TADA Act.   There

is no dispute about the fact that the Appellant has been in

jail for more than 12 years and charges are not framed till

date  which  itself  is  a  ground  for  bail.  (See:  Sanghian

Pandian  Rajkumar  v  C.B.I  (2014)4  SCALE  74;  Bal

Krishna  Pandey  Alias  Vidur  V  State  of  U.P.

(2003)12SCC186;  Dipak  Shubhashchandra  Mehta  v.

CBI, (2012) 4 SCC 134)   

10. Taking note of the above and the fact that the Appellant

has been granted bail by this court in Criminal Appeal No.

1650  of  2011,  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

6:00PM. He shall not leave the territory of Porbandar. c. Whenever  the  Appellant  is  required  to  attend

proceedings  before  the  Designated  Court  for  the

purposes of  Special  TADA case No.  2 of  2005 arising

from C.R. No.II-151/93 received at Jamnagar City “B”

Division Police Station dated 16.07.93, the Appellant’s

attendance may be secured through video conferencing

which  has  to  be  organized  by  the  State.   If  video

conferencing cannot be arranged, the Appellant will be

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produced  before  the  Designated  Court  or  any  other

court, if necessary, through Escort by the Police.   d. The  Passport  of  the  Appellant  shall  be  surrendered

before  the  Court  of  Designated  Judge  (TADA)  at

Porbandar.  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.

11. The Registry is directed to transmit the record to the

Designated  Court  immediately.  The  Designated  Court  is

directed to frame charges at the earliest and dispose of the

matter  expeditiously.   With  the  above  directions,  the

Appeal is allowed.

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

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

New Delhi, February 01, 2017

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