EBHA ARJUN JADEJA & ORS. versus THE STATE OF GUJARAT on 16 October 2019

EBHA ARJUN JADEJA & ORS.

v.

THE STATE OF GUJARAT

(Criminal Appeal No. 1692 of 2009)

OCTOBER 16, 2019

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Terrorist and Disruptive Activities (Preventive) Act, 1987 –s. 20-A(1) – Compliance of – Three accused persons were stoppedand personally searched by the police – Police recovered oneforeign made pistol and 2 country made tamancha from them – FIRwas registered u/ss. 25(1)(Ba), 27 of the Arms Act and s. 135 ofthe Bombay Police Act and u/s. 5 of TADA Act and arrangementwas made for obtaining the sanction of the District Superintendentof Police u/s. 20(A(1) of the TADA Act – Appellants contended thatin terms of s. 20-A(1) of TADA Act, no information aboutcommission of offence could have been recorded under TADA Actwithout the approval of the District Superintendent of Police andtherefore, it vitiates the entire proceeding under TADA Act – Held:Provisions of s.20-A(1) are mandatory – It forbids the recordingof information about the commission of offence under TADA Actby the police without prior approval of the District Superintendentof Police – The bar u/s. 20-A(1) of TADA applies to informationrecorded u/s. 154 Cr.P.C. – This bar will not apply to a rukka ora communication sent by the police official to the DistrictSuperintendent of police seeking his sanction – No informationcan be recorded u/s. 154 Cr.P.C. for commission of an offenceunder TADA Act without the sanction of the competent authority –Further, it has to be seen that where the information basicallydiscloses an offence under TADA Act and the other offence is morein the nature of an ancillary offence then the information cannotbe recorded without complying with the provisions of s.20-A(1) ofTADA Act – This will have to be decided in the facts of each case– In the instant case, the only information recorded whichconstitutes an offence was recovery of the arms – The area whereaccused were carrying arms was notified area under TADA Act andcarrying arms in notified area is itself an offence under TADA Act

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A– There were no other offences of rape, murder etc. in this case– Therefore in the present case, non-compliance of s. 20-A(1)vitiates the proceedings under the TADA Act – Accordingly,appellants discharged in so far as the offence under TADA Act isconcerned, however, they can be proceeded against under theprovisions of the Arms Act – Arms Act 1959 – ss. 25(1)(Ba), 27 –BBombay Police Act – s.135.

Allowing the appeal, the Court

HELD: 1.The language of the Section 20-A of theTerrorist and Disruptive Activities (Prevention) Act, 1987 isCmandatory in nature. It starts with a non-obstante clause. Itforbids the recording of information about the commission ofoffence under TADA Act by the police without prior approval ofthe District Superintendent of Police. [Para 6] [747-C]

2. The word ‘FIR’ is not used in Section 154 of CrPC,Dthough it is now commonly used with regard to informationrecorded under Section 154. Therefore, whenever informationrelating to commission of a cognizable offence is given orallythen the officer-in-charge of the police station is bound to recordthat information in a book to be kept for such offences in suchform as the State Government may prescribe in this behalf.EWhat is prohibited under Section 20-A(1) of TADA Act is therecording of information. It can be presumed that the Legislaturewhile introducing Section 20-A(1) in TADA Act was also awareof the provisions of Section 154 of CrPC. Therefore, the clear-cut intention was that no information of commission of an offenceFunder TADA Act would be recorded by the police under Section154 of CrPC without sanction of the competent authority. Thereason why Section 20-A(1) was introduced into TADA Act inthe year 1993 by amendment was that because the provisionsof TADA Act were very stringent, the Legislature felt that asenior official should look into the matter to ensure that anGoffence under TADA is made out and then grant sanction. [Para13] [751-C-E]

3. The bar under Section 20-A(1) of TADA Act applies toinformation recorded under Section 154 of CrPC. This bar willnot apply to a rukka or a communication sent by the police officialHto 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. [Para 14][751-F]

4. Each case is to be decided on its own facts. The policeofficial, not being the District Superintendent of Police, mayreceive information of commission of an offence and may reachthe scene of a crime. He can record the information on the spotand 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 thesecases, the police officer is entitled to record the informationsome of which may indicate an offence under TADA Act, alsobecause non-recording of the information with regard to the mainoffence may delay the investigation and hamper properinvestigation in the matter. In such cases, while recording theinformation and recording the FIR, for the offences falling underTADA Act, the police officials concerned can approach theDistrict Superintendent of Police for sanction under Section 20-A(1) of TADA Act. The investigation in serious cases of murder,rape, smuggling, narcotics, POCSO Act etc. cannot be delayedonly because TADA Act is also involved.[Para 15] [751-G-H;752-A-C]

5. At the same time, where the information basicallydiscloses an offence under TADA Act and the other offence ismore in the nature of an ancillary offence then the informationcannot be recorded without complying with the provisions ofSection 20-A(1) of TADA Act. This will have to be decided inthe facts of each case. In the case in hand, the only informationrecorded which constitutes an offence is the recovery of thearms. The police officials must have known that the area is anotified area under TADA Act and, therefore, carrying such armsin a notified area is itself an offence under TADA Act. It is truethat this may be an offence under the Arms Act also but the basicmaterial for constituting an offence both under the Arms Act andTADA Act is identical i.e. recovery of prohibited arms in anotified area under TADA Act. The evidence to convict theaccused for crimes under the Arms Act and TADA Act is also A

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Athe same. There are no other offences of rape, murder etc. inthis case. Therefore, as far as the present case is concerned,non-compliance of Section 20-A(1) of TADA Act is fatal and thereis no other option but to discharge the appellants in so far asthe offence under TADA Act is concerned. This Court makes itclear that they can be proceeded against under the provisionsBof the Arms Act. [Para 16] [752-D-F]

Rangku Dutta @ Ranjan Kumar Dutta v. State ofAssam (2011) 6 SCC 358 : [2011] 8 SCR 639;Anirudhsinhji Karansinhji Jadeja & Anr.v.State ofGujarat (1995) 5 SCC 302 :[2012] 12 SCR 1033 ;CAshrafkhan & Anr.v.State of Gujarat (2012) 11 SCC606 : [2012] 12 SCR 1033 ; Hussein Ghadially &Ors. v. State of Gujarat (2014) 8 SCC 425 : [2014] 9SCR 364 – relied on.

Case Law Reference

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From the Judgment and Order dated 16.07.2009 of theDesignated Court at Porbandar in Special TADA Case No. 6 of 1995.

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Sanjay Jain, Sudarshan Singh Rawat, Advs. for the Appellants.Aniruddha P. Mayee, Ms. Deepanwita Priyanka, Advs. for theRespondent.

The Judgment of the Court was delivered by GDEEPAK GUPTA, J.

1. This appeal by the accused is directed against the order passedby the Designated TADA Court whereby the application filed by theaccused that they should be discharged due to non-compliance ofSection 20-A(1) of the Terrorist and Disruptive Activities (Prevention)HAct, 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-3/1994registered 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 PoliceInspector C.J. Singh along with some other police personnel was doingnight round in Kutiyana and was trying to keep a secret watch overbootleggers, he received some information that appellant no. 1, who wasabsconding in Crime No. II-3/1994, was coming to his village in a motorvehicle. The police inspector arranged two witnesses and after preparingpreliminary panchnama, left Kutiyana in a Government jeep at about1.00-1.15 a.m. They set up a naka and at about 2.45 a.m., one motorvehicle came from the side of village Garej. The vehicle was asked tostop and it stopped. Accused no. 1 was found sitting on the driver’sseat. The police cordoned the motor vehicle in which two other persons(appellant nos.2 and 3) were also sitting. All these three persons wereasked to get down and disclose their identities. On making personalsearch of these three persons, following recoveries were made:

4. The three accused persons could not produce any licence andthe aforesaid arms were seized. Though the first information report (FIR)was recorded under the Arms Act, in the very same FIR, the officeralso recorded as follows:

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A“One 9 MM semi automatic prohibited foreign made pistol andits cartridges loaded in it and Japan made revolver and itscartridges in a loaded condition were found from Mer EbhaArjan. Out of which, it becomes from the smell coming fromthe barrel of the pistol and box that the same is used before sometime for firing. From the two persons with Jadeja Ebha Arjan,Bnamely, Mer Bachu Bhima and Mer Keshu Chana also, twocountry made tamanchas are found and Mer Ebha Arjan is agang leader of gundas in Porbandar area and in thatcircumstances, the persons as above are found in an Ambassadorcar no.GJ-M-8905 and it appears that they are going to commitCany terrorist activity and so all the three persons were legallyarrested for the offence under Sections 25(1)(Ba), 27 of the ArmsAct and Section 135 of the Bombay Police Act and motor carAmbassador no.GJM-8905 valuing at Rs.100000/- was alsoseized in this case.

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

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EThe above persons were found in possession of weapons andcartridges from out of the weapons and explosives mentioned inArms Rules 1962 Schedule-1 Class-1 and Class-3(A) Columnno.2 and 3 in public area and hence, as the offence under Section5 of TADA Act is also made out and so, arrangement is madefor obtaining the sanction of the District Superintendent of Police,FPorbandar under Section 20(A)(1) of the Act, by making a reportalong with copies of the panchnama and F.I.R. and identificationsheets of the accused.”

5. Thereafter on the same day i.e. 10.04.1995, the DistrictSuperintendent of Police granted sanction to add Section 5 of TADAGAct to the offences already registered. The grievance of the appellantsis that in terms of Section 20-A(1) of TADA Act, no information aboutcommission of offence under the Act could have been recorded withoutapproval of the District Superintendent of Police. Therefore, it iscontended that the entire initiation of the action wherein the CrimeHNo.II.28/1995 was recorded without sanction of the District

Superintendent of Police, vitiates the entire proceedings in so far asthey have been initiated under TADA Act.

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

“20-A. Cognizance of offence.—(1) Notwithstanding anythingcontained in the Code, no information about the commission ofan offence under this Act shall be recorded by the police withoutthe prior approval of the District Superintendent of Police.

(2) No court shall take cognizance of any offence under this Actwithout 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 witha non-obstante clause. It forbids the recording of information about thecommission of offence under TADA Act by the police without priorapproval of the District Superintendent of Police.

7. The provisions of Section 20-A(1) are mandatory. This issueis no longer res integra. In Rangku Dutta @ Ranjan Kumar Duttav. State of Assam[1], this Court held that the provision, which wascouched in negative terms is mandatory in nature. Relevant portion ofthe judgment reads as under:

“18. It is obvious that Section 20-A(1) is a mandatoryrequirement of law. First, it starts with an overriding clause and,thereafter, to emphasise its mandatory nature, it uses theexpression “No” after the overriding clause. Whenever the intentof a statute is mandatory, it is clothed with a negative command.Reference in this connection can be made to G.P. Singh’sPrinciples of Statutory Interpretation, 12th Edn.…”

8. Learned counsel for the appellants also placed reliance on thejudgment of this Court in Anirudhsinhji Karansinhji Jadeja & Anr.v.State of Gujarat[2]. In this case, the case was registered against theaccused initially under the Arms Act. The District Superintendent ofPolice, instead of giving approval for recording information, made areport to the Additional Chief Secretary, seeking permission to proceedunder TADA Act. Thereafter, the Additional Chief Secretary, HomeDepartment, gave sanction to proceed under TADA Act. Dealing with 1 (2011) 6 SCC 358

2 (1995) 5 SCC 302

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Athe issue whether Section 20-A(1) was violated and whether theprosecution was, therefore, vitiated, this Court has observed as under:

“11. The case against the appellants originally was registered on19-3-1995 under the Arms Act. The DSP did not give any priorapproval on his own to record any information about theBcommission of an offence under TADA. On the contrary, hemade a report to the Additional Chief Secretary and asked forpermission to proceed under TADA. Why? Was it because hewas reluctant to exercise jurisdiction vested in him by the provisionof Section 20-A(1)? This is a case of power conferred upon oneCauthority being really exercised by another. If a statutoryauthority has been vested with jurisdiction, he has to exercise itaccording to its own discretion. If the discretion is exercised underthe direction or in compliance with some higher authority’sinstruction, then it will be a case of failure to exercise discretionaltogether. In other words, the discretion vested in the DSP inDthis case by Section 20-A(1) was not exercised by the DSP atall.”

9. Similar matter came up before this Court in Ashrafkhan &Anr.v. State of Gujarat[3]. Dealing with the issue of the consequencesEof non-compliance of Section 20-A(1) of TADA Act, this Court heldas follows:

27. It is worth mentioning here that TADA, as originally enacted,did not contain this provision and it has been inserted by Section9 of the Terrorist and Disruptive Activities (Prevention)FAmendment Act, 1993 (43 of 1993). From a plain reading of theaforesaid provision it is evident that no information about thecommission of an offence shall be recorded by the police withoutthe prior approval of the District Superintendent of Police. Thelegislature, by using the negative word in Section 20-A(1) ofTADA, had made its intention clear. The scheme of TADA isGdifferent than that of ordinary criminal statutes and, therefore,its provisions have to be strictly construed. Negative words canrarely be held directory. The plain, ordinary grammatical meaningaffords the best guide to ascertain the intention of the legislature.

H3 (2012) 11 SCC 606

Other methods to understand the meaning of the statute isresorted to if the language is ambiguous or leads to absurd result.No such situation exists here. In the face of it, the requirementof prior approval by the District Superintendent of Police, onprinciple, cannot be said to be directory in nature.”

Thereafter, reference was made to the various judgments of thisCourt and it was held as under:

“37. The plea of the State is that the Commissioner of Policehaving granted the sanction under Section 20-A(2) of TADA,the conviction of the accused cannot be held to be bad only onthe ground of absence of approval under Section 20-A(1) by theDeputy Commissioner. As observed earlier, the provisions ofTADA are stringent and consequences are serious and in orderto prevent persecution, the legislature in its wisdom had givenvarious safeguards at different stages. It has mandated that noinformation about the commission of an offence under TADAshall be recorded by the police without the prior approval of theDistrict Superintendent of Police. Not only this, further safeguardhas been provided and restriction has been put on the court notto take cognizance of any offence without the previous sanctionof the Inspector General of Police or as the case may be, theCommissioner of Police. Both operate in different and distinctstages and, therefore, for successful prosecution both therequirements have to be complied with. We have not comeacross any principle nor are we inclined to lay down that in acase in which different safeguards have been provided at differentstages, the adherence to the last safeguard would only be relevantand breach of other safeguards shall have no bearing on the trial.Therefore, we reject the contention of the State that the accusedcannot assail their conviction on the ground of absence ofapproval under Section 20-A(1) of TADA by the DeputyCommissioner, when the Commissioner of Police had grantedsanction under Section 20-A(2) of TADA.”

The Court further held that non-compliance of Section 20-A wasnot a curable defect and could not be cured in terms of Section 465 ofCode of Criminal Procedure, 1973 (CrPC).

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A10. Thereafter in Hussein Ghadially & Ors. v. State ofGujarat[4], this Court dealing with Section 20-A of TADA Act held asfollows:

“21. A careful reading of the above leaves no manner of doubtthat the provision starts with a non obstante clause and is couchedBin negative phraseology. It forbids recording of information aboutthe commission of offences under TADA by the police withoutthe prior approval of the District Superintendent of Police…….”

Thereafter, reference was made to the various judgments of thisCourt and it was held as under:

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“29. The upshot of the above discussion, therefore, is that therequirement of a mandatory statutory provision having beenviolated, the trial and conviction of the petitioners for offencesunder TADA must be held to have been vitiated on thataccount…..”

D11. The law is therefore, clear that if Section 20-A(1) of TADAAct is not complied with, then it vitiates the entire proceedings.

12. On behalf of the respondents, it is urged that in terms ofSection 154(1) of CrPC, an FIR has to be lodged whenever informationof commission of a cognizable offence is received. It is also urged thatESection 20-A(1) of TADA Act bars the recording of information but itdoes not specifically bar registration of the FIR under the Arms Act.It is also urged that the District Superintendent of Police has to take adecision and, therefore, some information has to be placed before himand then only he can decide whether the sanction should be granted orFnot. As far as the last submission is concerned, there can be no quarrelwith respect to the same. Obviously, information will have to be givento the District Superintendent of Police but this information can be inthe nature of a communication specifically addressed to the DistrictSuperintendent of Police and not in the nature of information beingrecorded in the Register or Book meant for recording of informationGunder Section 154 of CrPC. We may refer to the opening portion ofSection 154 of CrPC, which reads as under:

“154. Information in cognizable cases.-(1) Every informationrelating to the commission of a cognizable offence, if given orally H4 (2014) 8 SCC 425

to an officer in charge of a police station, shall be reduced towriting by him or under his direction, and be read over to theinformant; and every such information, whether given in writingor reduced to writing as aforesaid, shall be signed by the persongiving it, and the substance thereof shall be entered in a book tobe kept by such officer in such form as the State Governmentmay prescribe in this behalf:

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13. The word ‘FIR’ is not used in Section 154 of CrPC, thoughit is now commonly used with regard to information recorded underSection 154. Therefore, whenever information relating to commissionof a cognizable offence is given orally then the officer-in-charge of thepolice station is bound to record that information in a book to be keptfor such offences in such form as the State Government may prescribein this behalf. What is prohibited under Section 20-A(1) of TADA Actis the recording of information. We can presume that the Legislaturewhile introducing Section 20-A(1) in TADA Act was also aware of theprovisions of Section 154 of CrPC. Therefore, the clear-cut intentionwas that no information of commission of an offence under TADA Actwould be recorded by the police under Section 154 of CrPC withoutsanction of the competent authority. The reason why Section 20-A(1)was introduced into TADA Act in the year 1993 by amendment wasthat because the provisions of TADA Act were very stringent, theLegislature felt that a senior official should look into the matter to ensurethat an offence under TADA is made out and then grant sanction.

14. The bar under Section 20-A(1) of TADA Act applies toinformation recorded under Section 154 of CrPC. This bar will not applyto a rukka or a communication sent by the police official to the DistrictSuperintendent of Police seeking his sanction. Otherwise, there couldbe no communication seeking sanction, which could not have been thepurpose of TADA Act.

15. Each case is to be decided on its own facts. The policeofficial, not being the District Superintendent of Police, may receiveinformation of commission of an offence and may reach the scene ofa crime. He can record the information on the spot and then send arukka to the police station for recording of FIR. There may be casesof serious offences like murder, rape, offences under Narcotic Drugsand Psychotropic Substances Act, 1985, Protection of Children from AB

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ASexual Offences (POCSO) Act, 2012 etc. where any delay ininvestigation is fatal. In these cases, the police officer is entitled to recordthe information some of which may indicate an offence under TADAAct, also because non-recording of the information with regard to themain offence may delay the investigation and hamper properinvestigation in the matter. In such cases, while recording the informationBand recording the FIR, for the offences falling under TADA Act, thepolice officials concerned can approach the District Superintendent ofPolice for sanction under Section 20-A(1) of TADA Act. Theinvestigation in serious cases of murder, rape, smuggling, narcotics,POCSO Act etc. cannot be delayed only because TADA Act is alsoCinvolved.16. At the same time, where the information basically disclosesan offence under TADA Act and the other offence is more in the natureof an ancillary offence then the information cannot be recorded withoutcomplying with the provisions of Section 20-A(1) of TADA Act. ThisDwill have to be decided in the facts of each case. In the case in hand,the only information recorded which constitutes an offence is therecovery of the arms. The police officials must have known that thearea is a notified area under TADA Act and, therefore, carrying sucharms in a notified area is itself an offence under TADA Act. It is trueEthat this may be an offence under the Arms Act also but the basicmaterial for constituting an offence both under the Arms Act and TADAAct is identical i.e. recovery of prohibited arms in a notified area underTADA Act. The evidence to convict the accused for crimes under theArms Act and TADA Act is also the same. There are no other offencesof rape, murder etc. in this case. Therefore, as far as the present caseFis concerned, non-compliance of Section 20-A(1) of TADA Act is fataland we have no other option but to discharge the appellants in so faras the offence under TADA Act is concerned. We make it clear thatthey can be proceeded against under the provisions of the Arms Act.

17. As pointed out by us above, the situation may be differentGwhere, to give an example, the police official finds a dead body, seesthat a murder has taken place, apprehends a person, who is runningaway after committing the murder and from that person a prohibitedarm is recovered in a notified area. In such a situation, the main offenceis the offence of murder and the offence of carrying a prohibitedHweapon in a notified area is the secondary offence under TADA Act.

Here, the police official can record the information and arrest the personfor committing an offence under Indian Penal Code,1860 but beforeproceeding under TADA Act he will have to take sanction under Section20-A(1) of TADA Act.

18. In view of the above, the appeal is allowed, the order of theDesignated TADA Court is set aside and the appellants are dischargedfrom the offences under TADA Act but they may be proceeded againstunder other provisions of law, if required. Pending application(s), if any,stand(s) disposed of.

Ankit Gyan

Appeal allowed.

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