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TMI Blog2012 (9) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... al business of liquor and running a gambling den is in possession of four foreign made hand grenades, revolvers and AK-47 rifles. The fountainhead of the weapons, according to the information is notorious criminal Abdul Latif Shaikh and came at the hand of accused Yusuf Laplap through his close associate accused Abdul Sattar @ Sattar Chacha. Sattar gave the arms and explosives to accused Siraj @ Siraj Dadhi, a constable attached to Vejalpur Police Station. He in turn delivered those arms and explosives to accused Imtiyaz Nuruddin, the servant of Yusuf Laplap at latter's instance. The aforesaid information was passed on to A.K. Suroliya, the Deputy Commissioner of Police, Crime Branch. The police party searched the house of the accused Yusuf Laplap in the night and found him leaving the house with two bags. From one of the bags one revolver with ISI mark and five foreign made hand grenades were recovered and from another bag five detonators having clips affixed to it were found. 3. According to the allegation, the arms and explosives seized were similar to those used in the Ahmedabad City earlier by gang of criminals and intended to be used in the forthcoming Jagannath Rath Yatr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons were charge-sheeted. 7. The Designated Court framed charges against 60 accused persons Under Section 120B of the Indian Penal Code, Section 3 and 5 of TADA, Section 4, 5 and 6 of the Explosive Substances Act and Section 25 (1A) of the Arms Act. However, Accused No. 57 namely, Mohmad Harun @ Munna @ Riyaz @ Chhote Rahim, has been discharged by the Designated Court by its order dated 24th of August, 2001. During the course of trial six accused namely, Adambhai Yusufbhai Mandli (Shaikh), Accused No. 11, Fanes Aehmohmad Ansari, Accused No. 18, Abdullatif Abdulvahab Shaikh, Accused No. 35, Ikbal Jabbarkhan Pathan, Accused No. 38, Firoz @ Firoz Kankani, Accused No. 56 and Jay Prakash Singh @ Bachchi Singh, Accused No. 60 died. One accused namely, Accused No. 9, Mohmad Ismail Abdul Shaikh absconded. 8. In order to bring home the charge, the prosecution altogether examined 70 witnesses and a large number of documents were also exhibited. The accused were given opportunity to explain the circumstances appearing in the evidence against them and their defence was denial simpliciter. The Designated Court, on analysis of the evidence, both oral and documentary, vide its order dated 31st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of TADA was registered without approval of the District Superintendent of Police as contemplated Under Section 20-A(1) of TADA and this itself vitiates the conviction. 15. Plea of the State, however, is that such an approval was granted by A.R. Suroliya, the Deputy Commissioner of Police, Crime Branch, who is an officer of the rank of District Superintendent of Police. Alternatively, the State contends that Section 20-A of TADA is a two tiered provision which provides for approval by the Deputy Commissioner Under Section 20-A(1) and sanction by the Commissioner Under Section 20-A(2) of TADA. In the absence of challenge to the sanction, challenge only to the approval, to use the counsel's word would be curable defect Under Section 465 of the Code of Criminal Procedure . It has also been pointed out that the accused having not challenged the sanction granted by the Commissioner of Police under Section 20-A(2) of TADA, they cannot assail their conviction on the ground of absence of approval Under Section 20-A(1) by the Deputy Commissioner. In order to defend the conviction, the State of Gujarat further pleads that the Designated Court having taken cognizance and decided to try ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explaining the absence of the original approval, this witness has stated in his evidence that he had gone to the Supreme Court for hearing of the application filed by the accused Yusuf Laplap and handed over the original papers to the senior Counsel. According to him, the senior Counsel told him that after producing the necessary papers before the Supreme Court, the original papers would be sent back but it has not come and despite efforts and inquiry, it could not be traced out. According to his evidence as the original letter of approval thereof is not found the xerox copy thereof was produced. It was marked as Exh.775. In the cross-examination, he reiterated that he had gone to the Supreme Court along with original approval letter and in the bail application of accused Yusuf Laplap, the said approval was produced. He feigned ignorance as to whether entry was made into outward register regarding approval and denied suggestion that he did not receive any proposal for approval nor granted the same and with a view to see that the case does not fall, he had deposed falsely regarding approval. In his cross-examination he has stated as follows: I do not know whether there is any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 157 of the Code has been filed and all these acts had taken place before the alleged loss of the document in the Supreme Court and, therefore, should have formed part of the charge-sheet and the report given Under Section 157 of the Code. It has also come on record that later on, the Assistant Commissioner of Police, Crime Branch had sought for approval of the Deputy Commissioner which he granted on 11th of August, 1994. The communication of the Assistant Commissioner of Police (Exh.1173) does not refer to any approval granted by the Deputy Commissioner earlier and, not only that, the Deputy Commissioner while giving approval on 11th of August, 1994 has nowhere whispered that earlier he had already granted the approval. No explanation is forthcoming from the side of the prosecution that when Deputy Commissioner A.R. Suroliya had already granted approval on 9th of June, 1994, what was the occasion to write to him for grant of another approval and the Deputy Commissioner granting the same. To prove prior approval, the prosecution has produced the xerox copy. According to the evidence of Deputy Commissioner A.R. Suroliya, he had got it prepared from the copy kept in his office. We won ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Deputy Commissioner is necessary in this regard. The Deputy Commissioner of Police on the same day granted approval. 25. However, Deputy Commissioner A.R. Suroliya, in his evidence, has nowhere stated about the approval granted on 11th of August, 1994 though he had deposed about the approval granted on 9th of June, 1994. In the face of it, the case of the prosecution that Deputy Commissioner A.R. Suroliya gave another approval on 11th of August, 1994 is fit to be rejected. 26. Another approval said to have been granted by the Additional Chief Secretary, Home Department for using TADA sections (Exh. 439) has also been proved by the prosecution to establish compliance of Section 20-A(1) of TADA. Accused has not joined issue on this count and in view of the evidence on record, we have no hesitation in accepting the case of the prosecution that the Additional Chief Secretary, Home Department, on 15th of June, 1994 had given approval. However, its consequences on the conviction of the accused shall be discussed later on. 27. Having found that the Deputy Commissioner has not granted the prior approval, as required Under Section 20-A(1) of TADA, we proceed to consider the consequence the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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 provision of Section 20-A(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 20-A(1) was not exercised by the DSP at all. 29. The effect of non-compliance of Section 20-A(1) of TADA also came up for consideration before this Court in the case of Mukhtiar Ahmed Ansari v. State (NCT of Delhi) (2005) 5 SCC 258 and while holding that absence of prior approval would vitiate the conviction, the Court observed as under: 23. We are unable to uphold the argument. In this case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are in approval of the latter judgment and we hold that it is not the requirement Under Section 20-A(1) to have the prior approval only in writing. Prior approval is a condition precedent for registering a case, but it may be either in writing or oral also, as has been observed by this Court in Kalpnath Rai case 1997 (8) SCC 732 and, therefore, in the case in hand, the learned Designated Judge was wholly in error in refusing to register the case Under Sections 4 and 5 of TADA. We, therefore, set aside the impugned order of the learned Designated Judge and direct that the matter should be proceeded with in accordance with law. (Underlining ours) 32. Another question which needs our attention is the effect of approval dated 15th of June, 1994 given by the Additional Chief Secretary, Home Department of the State. Section 20-A of TADA authorises the District Superintendent of Police to grant approval for recording the offence and Additional Chief Secretary of the Home Department or for that matter, State Government does not figure in that. The legislature has put trust on the District Superintendent of Police and therefore it is for him to uphold that trust and nobody else. Hence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one of the curable defects. 35. The submission that absence of sanction Under Section 20-A(2) by the Commissioner of Police has been held to be a curable defect and for parity of reasons the absence of approval Under Section 20-A(1) would be curable is also without substance and reliance on the decision of Lal Singh v. State of Gujarat (1998) 5 SCC 529, in this connection, is absolutely misconceived. An Act which is harsh, containing stringent provision and prescribing procedure substantially departing from the prevalent ordinary procedural law cannot be construed liberally. For ensuring rule of law its strict adherence has to be ensured. In the case of Lal Singh (supra) relied on by the State, Section 20-A(1) of TADA was not under scanner. Further, this Court in the said judgment nowhere held that absence of sanction Under Section 20-A(2) is a curable defect. In Lal Singh (supra) the question of sanction was not raised before the Designated Court and sought to be raised before this Court for the first time which was not allowed. This would be evident from the following paragraph of the judgment 4. Sub-section (2) makes it clear that when the objection could and should have been r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 20-A(1) of TADA by the Deputy Commissioner, when the Commissioner of Police had granted sanction Under Section 20-A(2) of TADA. 38. As regards submission of the State that the Designated Court having taken cognizance and decided to try the case by itself in exercise of the power Under Section 18 of TADA, the prior defects, if any, are rendered irrelevant and cannot be raised, has only been noted to be rejected. Section 18 of TADA confers jurisdiction on the Designated Court to transfer such cases for the trial of such offences in which it has no jurisdiction to try and in such cases, the court to which the case is transferred, may proceed with the trial of the offence as if it had taken cognizance of the offence. The power of the Designated Court to transfer the case to be tried by a court of competent jurisdiction would not mean that in case the Designated Court has decided to proceed with the trial, any defect in trial, cannot be agitated at later stage. Many ingredients which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Designated Court shall not make all other provisions inconsequential. 40. Lastly, it has been submitted that absence of approval Under Section 20-A(1) of TADA would not vitiate the conviction of the accused under other penal provisions. As stated earlier, the accused persons besides being held guilty Under Section 3 and 5 of TADA, have also been found guilty Under Section 7 and 25(1A) of the Arms Act and Section 4, 5 and 6 of the Explosive Substances Act. According to the State, the conviction under the Arms Act and the Explosive Substances Act, therefore, cannot be held to be illegal. It is relevant here to state 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 offence is connected with the offence under TADA. When the Designated Court had the power to try offences under TADA as well as other offences, it is implicit that it has the power to convict also and that conviction is permissible to be ordered under TADA or other penal laws or both. In our opinion it is not necessary for the Designated Court to first order conviction under TADA and only thereafter under other penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsustainable, the appeals filed by the State against acquittal and inadequacy of sentence have necessarily to be dismissed. 43. We appreciate the anxiety of the police officers entrusted with the task of preventing terrorism and the difficulty faced by them. Terrorism is a crime far serious in nature, more graver in impact and highly dangerous in consequence. It can put the nation in shock, create fear and panic and disrupt communal peace and harmony. This task becomes more difficult when it is done by organized group with outside support. Had the investigating agency not succeeded in seizing the arms and explosives, the destruction would have been enormous. However, while resorting to TADA, the safeguards provided therein must scrupulously be followed. In the country of Mahatma, means are more important than the end . Invocation of TADA without following the safeguards resulting into acquittal gives an opportunity to many and also to the enemies of the country to propagate that it has been misused and abused. District Superintendent of Police and Inspector General of Police and all others entrusted with the task of operating the law must not do anything which allows its misuse a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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