2009 (3) TMI 1079 - SC - Indian Laws

Summary

Issues Involved:
1. Delay in filing appeals.
2. Grant of bail under TADA.
3. Validity of confessional statements.
4. Parity in bail decisions for co-accused.
5. Compliance with procedural requirements under TADA.

Summary:

1. Delay in Filing Appeals:

1. Delay condoned in Criminal Appeal D. No. 23837 of 2008.

2. Grant of Bail under TADA:

These three criminal appeals have been taken up together as the same questions of law relating to the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as `TADA') regarding grant of bail are involved.

In all the three appeals, the prayer for bail made on behalf of the appellants under Section 439 Cr.P.C. and Section 20(8) of TADA has been rejected.

3. Validity of Confessional Statements:

Mr. Sushil Kumar submitted that of the other co-accused in the Valsad case, twenty accused had been acquitted and it was observed in the judgment of the learned Designated Judge that the prosecution had not been able to prove its case beyond all reasonable doubt. He contended that the contents of the charge-sheet did not warrant framing of charges by the Special Judge, particularly when no recovery was effected and the only evidence against the appellants was the alleged confession which had not been relied upon in the earlier trial.

Mr. Ranjit Kumar submitted that the appellant had been arrested on 28th June, 2005, and that there were as many as 47 accused in the case which was based on facts similar to those involving Izharul Haq Abdul Hamid Shaikh, and they are all on bail except the appellant who was alleged to have been absconding till he was arrested.

4. Parity in Bail Decisions for Co-Accused:

Mr. Ranjit Kumar submitted that as far as the appellant, Jivan Raghu Varli, was concerned, he could not be treated on a different footing from the other labourers, who have been granted bail in this case.

We are of the view that since the other labourers have been granted bail and there being no available material to presume that Jivan Raghu Varli had knowledge of the contents of the boxes, he may be granted bail on a parity with the other labourers.

5. Compliance with Procedural Requirements under TADA:

Mr. Sushil Kumar pointed out that in terms of Section 20A of TADA, notwithstanding anything contained in the Code of Criminal Procedure, no information about the commission of an offence under the Act can be recorded by the police without the prior approval of the District Superintendent of Police. Moreover, Sub-section (2) of Section 20A provides that no Court shall take cognizance of any offence under the Act without the previous sanction of the Inspector General of Police or, as the case may be, of the Commissioner of Police.

We are inclined to grant bail to the appellant Izharul Haq Abdul Hamid Shaikh, since undoubtedly, approval had not been obtained under Section 20A(1) of TADA before the First Information Report was recorded.

Conclusion:

We, accordingly, grant bail to appellant Jivan Raghu Varli in connection with TADA Case I/G. 6/96 n/s-121, 121(c), 122, 123, 120(B) of the Indian Penal Code and under Sections 4, 5 and of the Explosive Substances Act and Sections 3, 4 and 5 of TADA Act pending before the Designated (TADA) Judge at Porbandar, to the satisfaction of the Trial Court upon such conditions as may be considered necessary to ensure his presence during the trial and also as and when required, including restrictions on his movements and reporting to the local Police Station in a manner, as may be deemed fit and proper.

We also grant bail to appellant Izharul Haq Abdul Hamid Shaikh in Special TADA Case No. 6 of 2005 under Sections 121, 121A, 122, 123, 120B, 34 of the Indian Penal Code and Sections 25(1)AB, AA of the Arms Act, Section 9-B of the Explosive Substances Act, read with Sections 3, 4, 5 and 6 of TADA Act pending before the Designated (TADA) Court, Porbandar and also in connection with Case No. 1 of 2005 in respect of similar charges pending