THE STATE OF GUJARAT versus ANWAR OSMAN SUMBHANIYA AND ORS. on 27 February 2019

[2019] 2 S.C.R. 749

THE STATE OF GUJARAT

v.

ANWAR OSMAN SUMBHANIYA AND ORS.

(Criminal Appeal Nos. 1359-1361 of 2007)

FEBRUARY 27, 2019

[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Terrorist and Disruptive Activities (Prevention) Act, 1987: s.20-A(2) – Prior sanction under s.20A(2) – Validity of – By impugnedorder, Designated Court held that there was no prior sanction unders.20-A(2) before taking cognizance of the offence committed by therespondents – Held: Perusal of the subject sanction order showedthat it adverted only to the FIR and proposal received from DSP –The noting in the sanction order was indicative of the fact that itwas not a sanction to prosecute the accused but at best givingpermission to apply the provisions of TADA – Such a sanction cannotbe considered as a valid sanction – Penal Code, 1860 – ss.121,121A, 122 and s.34 – Arms Act, 1959 – ss.25, 27(1) and 29A –Telegraph Act, 1885 – s.20 – Indian Wireless Telegraphy Act, 1933– s.6(1-A).

Terrorist and Disruptive Activities (Prevention) Act, 1987: s.3– Mere possession of walky-talkies per se would not be an offenceunder TADA – In the instant case, sanction order in respect ofrespondent no.3 showed that there was nothing to indicate as towhether the sanctioning authority was conscious of the materialsgathered during investigation qua respondent No.3 which merelysuggested possession and recovery of two walky-talkies from him –The sanctioning authority was under a bounden duty to accordsanction, specific to offences, from amongst the different offencesunder sub-sections (1) to (6) of s.3 of TADA – s.4 refers to disruptiveactivities whereas s.5 refers to possession of unauthorized classifiedarms and ammunition – A walky-talky is certainly not one of thoseclassified arms and ammunition – The purported sanction sufferedfrom the vice of non-application of mind, on this count alone.

Terrorist and Disruptive Activities (Prevention) Act, 1987:Power of Designated Court to try any other offence (other thanTADA) – Whether the Designated Court could convict the accusedpersons for offences punishable under other enactments (other than

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ATADA) – Held: Designated Court, besides trying the case underTADA, can also try any other offence with which the accused maybe charged at the same trial if the offences are connected withoffences under TADA – For, implicit power has been bestowed uponthe Designated Court to convict the accused for offences underother enactments if there is legally admissible evidence to establishBthose charges – However, in the instant case, prosecution essentiallyrelied upon the confessional statement of the accused recorded underthe provisions of TADA – That will be of no avail and certainly notadmissible against the accused in the trial for offences under otherenactments, especially when the Designated Court could not haveCtaken cognizance of the offence under TADA for lack of a validsanction – There was no legally admissible evidence to establishthe charges against the respondents regarding offences under otherenactments (other than TADA) – The conclusion reached by theDesignated Court, that the respondents were not guilty of theoffences for which they were charged and tried, is not interferedDwith.

Dismissing the appeals, the Court

Conclusion

Dismissing the appeals, the Court

HELD: 1. The sanction order (Exh.84) issued under Section20-A(2) of TADA by DGP (PW-14) shows that the author of theEdocument DGP (PW-14), adverted only to the FIR and theproposal received from DSP, Jamnagar (PW-15). Theunderstanding of PW-14 was that the proposal received from DSP,Jamnagar (PW-15) was for granting approval to apply provisionsof TADA and the said proposal was accepted. The respondentsrightly relied on the dictum in Gadhvi’s case, where a similarFpurported sanction under Section 20-A(2) of TADA issued bythe very same officer DGP (PW-14), in respect of some otherTADA case, came up for consideration. The wording of sanctionorder considered therein was similar to the one underconsideration. [Para 13][764-F-H]GRambhai Nathabhai Gadhvi & Ors. v. State of Gujarat (1997)7 SCC 744 : [1997] 3 Suppl. SCR 356 – relied on 1.2 The subject sanction (Exh.84) was issued by the verysame officer and presumably prepared on the same date 3.11.93,but signed and issued on 9.11.1993. Even in the instant case,reference was only to two documents reckoned by PW-14 beforeissuing the sanction, the FIR and the letter or proposal sent bythe DSP, Jamnagar. In the evidence, although it was assertedthat the DSP (PW-15) was called for discussion and who, in turn,apprised him of all the relevant details of the investigation, butthat fact was not reflected in any contemporaneous record. Nosuch record was produced by the prosecution. What is significantis the wording of the subject sanction (Exh.84). When juxtaposedwith the sanction in the reported case (Exh.63 reproduced inparagraph 9 of the said judgment), it is obvious that even in theinstant case, what was noted in Exh.84 was the permission toapply Sections 3, 4 and 5 of TADA. In paragraphs 14 and 15 ofthe reported decision, this Court opined that such noting wasitself indicative of the fact that it was not a sanction to prosecutethe accused but at best giving permission to apply the provisionsof TADA. Such a sanction cannot be considered as a valid sanction,much less issued after due application of mind. The same logicapplies proprio vigore to the fact situation of the instant case.[Para 14][767-C-F]

2.1 The sanction dated 1[st] April, 2005 (Exh.57), concerningaccused No.3/respondent No.3, issued under the signature of‘AKB’, IGP (who is not examined) read with the evidence of PW-10 show that it was issued after due consideration of all therelevant material, including police papers. The evidence of PW-10 indicates that a Yadi was received on 27[th] March, 2005 in theOffice of Director General of Police and Chief Police Officer, wherethe witness was working as ASI. The same is dated 11[th] March,2005 (Exh.55), issued under the signature of PW-13. This wasfollowed by a communication sent under the signature ofSuperintendent of Police, Jamnagar (not examined) dated 15[th]March, 2005 (Exh.56). The purported sanction dated 1[st] April,2005 (Exh.57) was finally issued under the signature of ‘AKB’,IGP (not examined). [Paras 16-18][767-G-H; 768-A, 771-D;774-A]

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A2.2 A bare perusal of Exh.57 showed that there is nothingto indicate as to whether the sanctioning authority was consciousof the materials gathered during investigation qua the concernedaccused (respondent No.3), which merely suggested possessionand recovery of two walky-talkies from him. If that is the onlyincriminatory material against accused No.3/respondent No.3, theBsanctioning authority ought to have pondered over the crucialaspects including as to how such possession would entail incommission of any offence muchless punishable under Sections4 or 5 of TADA. Further, section 3 of TADA posits differentoffences, namely, terrorist acts [Section 3(2)], being party toCconspiracy or abetment or knowingly facilitating the commissionof terrorist acts [Section 3(3)], harbouring or concealing anyterrorist [Section 3(4)], being member of a terrorist gang orterrorist organization, which is involved in terrorist acts [Section3(5)], and to hold any property derived or obtained fromcommission of any terrorist act [Section 3(6)]. The sanctioningDauthority was under a bounden duty to accord sanction, specificto offences, from amongst the different offences under sub-sections (1) to (6) of Section 3 of TADA. Section 4 refers todisruptive activities whereas Section 5 refers to possession ofunauthorized classified arms and ammunition. A walky-talky isEcertainly not one of those classified arms and ammunition. Thepurported sanction vide Exh.57 also suffers from the vice of non-application of mind, on this count alone. [Para 19][775-C-G]

3. It is now well settled that the Designated Court, besidestrying the case under TADA, can also try any other offence withFwhich the accused may be charged at the same trial if the offencesare connected with offences under TADA. For, implicit powerhas been bestowed upon the Designated Court to convict theaccused for offences under other enactments if there is legallyadmissible evidence to establish those charges. Even in theinstant case, it is noticed that the prosecution has essentiallyGrelied upon the confessional statement of the accused recordedunder the provisions of TADA. That will be of no avail and certainlynot admissible against the accused in the trial for offences underother enactments, especially when the Designated Court couldnot have taken cognizance of the offence under TADA for lack of H

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a valid sanction. Additionally, in the instant case, the evidenceproduced by the prosecution regarding search and seizure isreplete with fatal deficiencies. There was no legally admissibleevidence to establish the charges against the respondentsregarding offences under other enactments (other than TADA).The conclusion reached by the Designated Court, that therespondents were not guilty of the offences for which they werecharged and tried, needs no interference. [Paras 23, 24, 25][777-B-C; 778-D-F]

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Prakash Kumar alias Prakash Bhutto v. State of Gujarat(2005) 2 SCC 409 : [2005] 1 SCR 408 – followed

ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1359-1361 of 2007

From the Judgment and Order dated 12.01.2007 of the DesignatedJudge, Jamnagar, in Special TADA Case Nos. 3 of 1994, 3 of 1997 and1 of 2005

Ms. Pinky Behra, Ms. Vishakha and Ms. Hemantika Wahi, Advs., B

for the Appellant.

A. Sirajudeen, Sr. Adv., Ms. Nidhi, Karri Venkata Reddy andS. Gokula Krishnan, Advs., for the Respondents.

The Judgment of the Court was delivered by CA. M. KHANWILKAR, J.

1. The instant appeals filed under Section 19 of the Terrorist andDisruptive Activities (Prevention) Act, 1987 (for short “TADA”), areagainst the final judgment and order dated 12[th] January, 2007 passed bythe Designated Judge, Jamnagar in Special TADA Case Nos.3/1994, 3/1997 and 1/2005, whereby the respondents have been acquitted afterDfinding them not guilty of the stated offences.

2. Separate charge-sheets were filed against the respondents foroffences punishable under Sections 121, 121A, 122 read with Section 34of the Indian Penal Code, Sections 3, 4 and 5 of TADA, Sections25(1)(A)(D), 25(1AA), 25(1B)(A B F G), 27(1), 29(A) of the ArmsEAct, 1959 (for short “1959 Act”), Section 20 of the Indian TelegraphAct, 1885 (for short “1885 Act”) and Section 6(1-A) of the IndianWireless Telegraphy Act, 1933 (for short “1933 Act”). The respondentswere tried for the aforesaid offences in Special TADA Case Nos.3/1994, 3/1997 and 1/2005, before the Special Court at Jamnagar, whichFwas then transferred to the Court of Designated Judge at Jamnagar.Since all the three charge-sheets were in connection with one and thesame offence and to obviate repetition of evidence, consolidated evidencewas recorded for all the cases in Special TADA Case No.3/1994.

3. The complaint (Exh.27A) was lodged by one Bakul VithalbhaiJani (PW-6), on the basis of information that respondent No.1 – AnwarGOsman Subhaniya, resident of Salaya Barlovas, Hussaini Chowk “HasmiManzil”, was in illegal possession of foreign made fire arms weapons athis residential house. The raiding party, after obtaining prior approval (Exh.30) of Pramod Kumar Jha, DSP (PW-15), proceeded along withsearch warrant, and upon search of the residential house of respondentNo.1, conducted by the raiding party, following items were seized:

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(i) One – Foreign made carbine gun with magazine valuedRs.2 lakhs.

(ii) One – Foreign made revolver with eight chambers worthBRs.60,000/-.

(iii) One – Foreign made revolver with six chambers worthRs.45,000/-.

(iv) One – Transmitter walky-talky set worth Rs. 1 lakh.

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(v) 52 live cartridges of 9 mm stain guns.

(vi) 4 live cartridges of revolvers.

4. Immediately after recovery of arms and ammunition, afterseeking prior oral approval of PW-6, FIR was lodged vide CR-21/93 forthe stated offences only against respondent No.1 and he came to bearrested on 18[th] June, 1993. Later, on 21[st] June, 1994, a charge-sheetwas filed against respondent No.1 and the case was registered as SpecialTADA Case No.3/1994. Along with the charge-sheet, sanction forprosecution (Exh.84) was obtained from A.K. Tandon, Director Generalof Police (PW-14) under Section 20-A(2) of TADA on 3-9/11-93.Respondent No.2 - Junas Hazi Ibrahim came to be arrested on 20[th]March, 1997 and his confessional statement under Section 15 of TADAwas recorded on 25[th] March, 1997, when he stated that he sold onecarbine gun to respondent No.1. Charge-sheet was filed againstrespondent No.2 on 6[th] April, 1997 whereafter a case was registeredagainst him as Special TADA Case No.3/1997 before the DesignatedCourt, Jamnagar. Respondent No.3 came to be arrested in 2005 inconnection with another CR No.43/1994 registered under Sections 3, 4& 5 of TADA by the B. Division Police Station on 10[th] December, 2004.A transfer warrant was obtained from the TADA Court, Jamnagar forarresting and taking custody of the respondent No.3 before his arrest.After completion of investigation against respondent No.3, separatecharge-sheet came to be filed on 29[th] April, 2005 after obtaining priorsanction (Exh.57) under Section 20-A(2) of TADA from A.K. Bhargavdated 1[st] April, 2005.

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A5. As aforesaid, all the three separate charge-sheets wereregistered as three Special TADA cases, being Special TADA CaseNos.3/1994, 3/1997 and 1/2005 before the Designated Court at Jamnagar.The Designated Court framed charges against the respondents on 12[th]September, 2005 to which they pleaded not guilty and wanted to be triedfor the alleged offence. The prosecution examined 15 prosecutionBwitnesses and their statements were recorded along with documentaryevidence in support of the case. The respondents did not produce anydefence witness. The Designated Court then proceeded to consider therival arguments and framed the following issues for consideration:

“1) Whether prosecution proves beyond reasonable doubt thataccused have with a view to do the war against India Government,by aiding and abutting each other, in furtherance of their commonintention, to prepare in advance to collect the weapons by previouslyarranging conspiracy and as a part of that conspiracy, before anytime prior to 18-6-93 at 10:00 hrs. brought sub-Machinegun,Revolver and cartridges and walky talky set for non telephonicmessage and kept it at the residential house of accused No.1Anwar Osman Subhaniya?

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2) Whether prosecution proves beyond reasonable doubt thataccused have in connection with the same offence, in furtheranceof their common intention as shown in issue No.1, with a view inEfurtherance of their common intention, aided and abutted eachother, before any time prior to 18-6-93, found from the possessionof accused No.1 Anwar Osman Sumbhaniya from his residentialhouse, one Egypt made self operating sub machine gun and 0.22Caliber Germany made revolver and 0.8 caliber American madeFrevolver and stain Gun and revolver cartridges and transmeterwalky talky set?

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3) Whether prosecution proves beyond reasonable doubt, that inconnection with the same offence during 21-45 to 23-45 on 29-7-93 at Salaya port road from the STD PCO from possession ofaccused No.1, wireless set without licence was found out?

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4) Whether prosecution proves beyond reasonable doubt that inconnection with the same offence, accused brought the abovemuddamal sub machine gun, revolver and cartridges withoutlicence from abroad and where found in the conscious possessionof accused No.1?

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5) Whether prosecution proves beyond reasonable doubt that inconnection with same offence, accused brought Japan made twotransmeter, wire-less set, before 18-6-93 at any time from foreignin the above muddamal in India, with common and criminalintention without licence and done exchange mutually and wherefoundout in the conscious possession of accused No.1 from STDPCO 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 beforeregistration of FIR under Section 20-A(1) or the validity of prior sanctionunder Section 20-A(2) of TADA before taking cognizance was framed,the Designated Court at the outset proceeded to answer the said issuesand opined that neither prior approval under Section 20-A(1) of TADAnor prior sanction under Section 20-A(2) of TADA was in conformitywith the mandate of the stated provisions. So holding, the DesignatedCourt held that the respondents could not be proceeded further for thealleged offences. Despite the Designated Court being fully convincedabout the illegality of “prior approval” and “prior sanction”, it also advertedto the evidence on record and observed that there was no legal evidenceto record a finding of guilt against the respondents. For, the confessionalstatement recorded purportedly under the provisions of TADA, cannotbe looked at. The same would not be admissible once the prosecutionfails 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 themnot guilty for the stated offences, and consequently, directed immediaterelease of respondent No.3/accused No.3, who was in judicial custodyas undertrial prisoner, if was not required in any other case. The bailbonds of respondent Nos.1 & 2/accused Nos.1 & 2 were ordered to becancelled.

7. This decision of the Designated Court is the subject matter ofchallenge in these appeals filed by the State. According to the appellant,the Designated Court committed manifest error in concluding that novalid prior approval under Section 20-A(1) of TADA was obtained beforeregistration of FIR for the stated offences. This opinion, however, wasfounded on a decision of this Court which is no more a good law. It is AB

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Anow well settled that even the prior oral approval can be reckoned as avalid approval within the meaning of Section 20-A(1) of TADA, albeitsupported by contemporaneous record in that regard to be followed by aformal written approval. As regards prior sanction accorded by A.K.Tandon (PW-14), there was ample material on record to substantiatethat he had accorded sanction (Exh.-84) after due consideration of theBrelevant aspects and it was not a case of non-application of mind. Similarly,the prior sanction (Exh.-57) accorded by A.K. Bhargav in respect ofaccused No.3, is also backed by relevant material duly considered byhim, as is evident from the evidence of Raghuvirsinh Surubha Chudasama,Dy.S.P. (PW-13) and Yashodhar Ramchandra Vaidya (PW-10). TheCopinion of the Designated Court that even this sanction order suffersfrom the vice of non-application of mind is manifestly wrong. It isalternatively contended that even if the Designated Court was right inconcluding that the prosecution of the respondents suffered due to lackof valid approval or valid sanction, it should not have dilated on otheraspects of the case on merits - as the only option left to the DesignatedDCourt in such a situation would be to transfer the case to a regular courtunder Section 18 of TADA. At any rate, the Designated Court couldnot have acquitted the respondents/accused. Instead, it could have givenopportunity to the prosecution to launch prosecution afresh with a validsanction as per the dictum in paragraph 20 of the decision of this CourtEin Rambhai Nathabhai Gadhvi & Ors. Vs. State of Gujarat[1]. If theprosecution was not inclined to avail of that option, the Designated Courtas aforesaid, should have exercised powers under Section 18 of TADAto transfer the case to a regular court having jurisdiction under the Codefor trial of other offences. To buttress the above submission, reliance isplaced on the decisions of this Court in Ahmad Umar Saeed SheikhFVs. State of U.P.[2], Harpal Singh Vs. State of Punjab,[3] and PrakashKumar alias Prakash Bhutto Vs. State of Gujarat[4].

8. The respondents, on the other hand, have supported the finalopinion of the Designated Court to acquit them. As regards the validityof prior approval under Section 20-A(1) of TADA, founded on oralGapproval followed by written approval, learned counsel for therespondents, in all fairness, submitted that the three-Judge Bench of thisCourt in State of A.P. Vs. A. Sathyanarayana and Ors.[5] holds the1 (1997) 7 SCC 7442 (1996) 11 SCC 613 (2007) 13 SCC 387H4 (2005) 2 SCC 4095 (2001) 10 SCC 597

field. Resultantly, it may not be necessary for this Court to probe intothat question and instead may proceed on the basis that a valid priorapproval was accorded in the present case before registration of FIRfor offences punishable under TADA. However, he contended that nofault can be found with the conclusion reached by the Designated Courtthat the prior sanction accorded in the present case under Section 20-A(2) of TADA suffers from the vice of non-application of mind and thatfinding recorded by the Trial Court is a possible view - which has beenexpressed 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 (PW-14)in another TADA case, registered at Khambala Police Station under hisjurisdiction, has been deprecated. The Court expressed strong disapprovalregarding the approach of the officer [A.K. Tandon (PW-14)], beingreflective of scanty application of mind in respect of vital and crucialaspects before according sanction under Section 20-A(2) of TADA. Itis contended that even in that case, the sanctioning authority (A.K.Tandon) had merely adverted to the First Information Report and theoffice note sent by the Superintendent of Police seeking permission orsanction. Further, the sanction order had noted that permission to addSections 3, 4 or 5 of TADA was being given, as is the noting made in thesubject sanction order (Exh.-84). Such noting, it has been held suffersfrom the vice of non-application of mind, a casual approach and completelyin disregard of the mandate of the law requiring prior sanction of thecompetent authority. For, it plainly overlooks the marked distinctionbetween grant of approval for adding sections of TADA at the stage ofregistration of FIR and, on the other hand, according sanction to prosecutethe accused under the provisions of TADA before laying the charge-sheet in the Designated Court qua them. Learned counsel submits thatthe same logic would apply to the subject sanction order dated 3/9-11-93(Exh. 84). The evidence of PW-14 or PW-15 or for that matter, otherdocumentary evidence Exh.82 and Exh.83, will be of no avail to justifythe validity of Exh.84. As regards the sanction accorded to prosecuteaccused No.3, dated 1[st] April, 2005 (Exh. 57), the same also, ex-facie,suffers from the vice of non-application of mind. For, the evidencegathered during the investigation against accused No.3, at best, indicatedthat two walky-talkies were recovered from him. The sanctioningauthority ought to have reckoned this fact, which by no standard wouldconstitute an offence under the TADA. Inasmuch as mere possession AB

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Aof such walky-talkies per se would not be an offence under TADA.The sanctioning authority has palpably failed to evaluate the materialsgathered during the investigations before recording its satisfaction onthe factum whether any terrorist act has been committed by the namedperson within the meaning TADA or for that matter being a member ofthe terrorist gang or party to the conspiracy or abetment or facilitatingBthe commission of a terrorist act. In substance, learned counsel for therespondents submits that no interference is warranted with the findingof fact recorded by the Designated Court that the sanction orders issuedby the competent authority (Exh.84 and Exh. 57) suffer from the vice ofnon-application of mind. To buttress this submission, learned counsel forCthe respondents has placed reliance on State of Bihar & Anr. Vs. P.P.Sharma & Anr.[6], Rambhai Nathabhai Gadhvi (supra), Mohd. IqbalM. Shaikh & Ors. Vs. State of Maharashtra[7], State (NCT of Delhi)Vs. Navjot Sandhu[8], Seeni Nainar Mohammed Vs. State[9].

9. We have heard Ms. Pinky Behra, learned counsel appearingDfor the State of Gujarat and Mr. A. Sirajudeen, learned senior counselappearing for the respondents.

10. First we intend to deal with the issue of validity of the sanctionorder dated 3/9-‘11-93 (Exh.84). This document is the outcome of theletter dated 9[th] August, 1993 sent by Pramod Kumar Jha, DSP (PW-15),to the Director General of Police for grant of sanction under Section 20-EA(2) of TADA. The said letter reads thus:

“Exhibit – 82“No. RB/D/121/1993/1810THE OFFICE OF DISTRICT SUPREINTENDENT OF POLICEJAMNAGARDATED 09/08/1993

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To,The Director General of policeAnd Chief of Police Gujarat State, Ahmedabad Subject : With regard to obtaining sanction under section 20A(1) of theGTADA under Salaya Police Station Crime I 21/93.

6 1992 Supp. (1) SCC 222

7 (1998) 4 SCC 4948 (2005) 11 SCC 600H9 (2017) 13 SCC 685

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) (1-AA), 25(1-B) 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 actis committed on 18/06/1993 at 10/00 hours at Salaya Barlovas HashmiManzil. As for the crime, the PSI Mr. B. V. Jani, LCB Jamnagar filedcomplaint on 18/06/1993 at 13/30 hours against accused Anwar OsmanVadher Musalman resident of Salaya Barlovas Hashmi Manzil for keepingin possession weapons unlawfully. The copy of FIR is annexed hereby.

The accused Anwar Osman Vadher resident of Salaya kept in hispossession unlawfully and without license the 1) Foreign Carbon Standgun Magazine worth Rs.2 lacs, 2) Foreign made revolver with eightcylinders in chamber worth Rs.60 thousand, 3) one foreign made revolverwith six cylinders in chamber having worth Rs. 45 thousand, 4) onetransmitter walky talky set foreign made worth Rs.1 lakh, 5) stand gunlive cartridges nos. 52 nos. worth Rs.1040, 6) Revolver live cartridgesnos. 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 wassought, thereby a remand till 01/07/1993 was granted and during theremand, upon further investigation, it was divulged by him that theweapons were obtained from 1) Mamummiya Panjumiya resident ofPorbandar, 2) Junus Ibrahim Gajwa Vadher resident of Salaya, 3) AdamJusab Bhaya Vadher resident of Salaya since deceased. Uponinvestigating as to the nos. 1 and 2, it was found that they had fled andthus the further investigation is held so as to arrest these persons. Uponcompletion of the remand period of accused Anwar Osman Patel, thefurther remand was sought, but it was rejected by the court and thus theaccused was sent to the court custody. As for the above mentionedoffence, the sanction is received by letter no. VIR/ATK/1993/3717 dated06/07/1993 from the side of the home department, for the purpose ofapplication of TADA. Therefore it is submitted that relevant order bepassed for sanction of section 20A(2) of TADA.

Sd/- illegibleP K ZaDistrict Superintendent of PoliceJamnagar”

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A11. On the basis of this communication, Office Note (Exh. 83)was placed for consideration before A.K. Tandon, DGP (PW-14). Thesaid 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,BCustoms act section 135 and section 3, 4 and 5 of the TADA act.

From the house possessed and used by the accused Anwar Osman VadherMusalman, weapons without any license being Foreign Carbon Standgun Magazine worth Rs.2 lacs, Foreign made revolver with eight cylindersin chamber worth Rs.60 thousand, one foreign made revolver with sixCcylinders in chamber having worth Rs.45 thousand, one transmitter walkytalky set foreign made worth Rs.1 lakh, stand gun live cartridges nos. 52nos. worth Rs. 1040 and Revolver live cartridges nos. 4 worth Rs. 80/-and upon investigation from the accused, he stated that, the weaponswere obtained from 1) Mamummiya Panjumiya resident of Porbandar,2) Junus Ibrahim Gajwa Vadher resident of Salaya, 3) Adam Jusab BhayaDVadher resident of Salaya (since deceased). Upon investigating as tothe nos. 1 and 2, it was found that they had fled and thus the furtherinvestigation for these two persons.

Placed with regards:It is a request to taken into perusal the order passed by the honourableEInspector General of Police at page P-19/NS.

2. In the Salaya police station Crime I 21/93, Jamnagar City B DivisionPolice station Crime 151/93, Panchnoshi B Division police stationCrime I 57/93 and Bharwad Police Station Crime I 43/93, the S1 to S8documents are placed on record for signature, in reference to the orderFpassed 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"G12. Indeed, P.K. Jha (PW-15) in his evidence has stated that after G12. Indeed, P.K. Jha (PW-15) in his evidence has stated that aftersending the letter (Exh. 82), the DGP Mr. A.K. Tandon (PW-14) hadsummoned him with papers of the case for discussion. Further, Mr.Tandon had personally discussed about the case with him. During thatinteraction, P.K. Jha had apprised the DGP about the details of theinvestigation and other details as to why it was necessary to apply theH

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provisions of TADA and file the charge-sheet in that regard. PramodKumar Jha, DSP (PW-15) has been cross-examined by accused Nos.1& 2. In the cross-examination, he stood by his version that he had goneto Director General of Police (PW-14) at Padadhari and had also goneto Ahmedabad but was unable to give the dates and time of the saidmeetings. He asserted that he had made notes about the meeting in hisrecords and in his personal diary which is called E-statement. However,the fact remains that the purported sanction order dated 3/9-11-93(Exh.84) makes reference only to have taken note of the FIR and theproposal received from DSP, Jamnagar. We may assume that the twoofficers – Pramod Kumar Jha (PW-15) and A.K. Tandon, DGP (PW-14) had interacted regarding the nature of investigation before issuingthe purported sanction order dated 3/9-11-93 (Exh.84). Even thoughA.K. Tandon, DGP (PW-14) had asserted that he had fully applied hismind before issuing the purported sanction order under Section 20-A(2)of TADA, that order, however, is suggestive of a casual approach ofA.K. Tandon, DGP (PW-14). The same reads thus:

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“ANNEXURE-P/5Mark 80/5 Exh.84.No.J.1/1909/1/Salaya/21

93/4327.

Office of DGP and Chief PoliceOfficer, Gujarat State, AhmedabadE3-9/11-93.

Ref:- 1. FIR of Salaya Police Stn. CR No.21/93 u/s. 122 of IP Code andu/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.

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2. Proposal No. DSP, Jamnagar, RB-D-121- Proved in 1993/1810 dtd.9-8-93 by DSP, Jamnagar.

Deposition of witness No.14Mark 80/5 be exhibited at exh.84 in spl. case No.3/94.

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Sd/- Desi. Judge, 4-7-06.

Jamnagar.

After carefully reading and considering the proposal for approval to applyTADA section vide letter No. RBD/121/ 1993/1810 dtd. 9-8-93 by DSPJamnagar and FIR of Jamnagar Dist. Salaya Police Station CR No.21/

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A93 u/s. 122 of IP Code and u/s. 25(1)(A) of Arms and u/s. 3,4,5 ofTADA act, I A.K. Tandon, DGP and Chief Police Officer Gujarat State,Ahmedabad do hereby approval/sanctioned to apply TADA act 3,4,5under amended provisions of amended TADA act 1987 (Amendment1993) u/s. 20(1)(2).

Sd/ A.K. TandonDGP and Chief PoliceOfficer, Guj. State,Ahmedabad.

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To,

DSP, Jamnagar Dists. JamnagarCCopy to: Chief Special police officer/Dy. Chief Police Officer, RajkotDivision, Rajkot, Addl. DGP Shri, CID, Crime and Range Gujarat State,Ahmedabad.

Sd/ PramodkumarAsst. Chief Police Officer, Crime.

DEndorsement for true copyCopy applied for by Dy.S.P. Khambhalia on 13-4-07And copy ready on 23-4-07 and copy delivered on25-5-07.

Sd/ Registrar

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True copy.

Sd/ Registrar.

Dist. & Sessions Court, Jam.

Translated from guj.

Into eng. Version by me.”F

13. On a fair reading of this document it is evident that the authorof the document A.K. Tandon, DGP (PW-14), adverted only to the FIRand the proposal received from DSP, Jamnagar. The understanding ofPW-14 was that the proposal received from DSP, Jamnagar (PW-15)was for granting approval to apply provisions of TADA and the saidGproposal was accepted. The respondents have rightly relied on the dictumin Gadhvi’s case (supra), where a similar purported sanction underSection 20-A(2) of TADA issued by the very same officer A.K. Tandon,DGP (PW-14), in respect of some other TADA case, came up forconsideration. The wording of sanction order considered by this Court issimilar to the one under consideration. In paragraph 9 of the reported H

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THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA[A. M. KHANWILKAR, J.]

judgment, the said sanction order has been reproduced, which readsthus:

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“9. In this case the prosecution relies on Ext. 63, an order issuedby the Director General of Police, Ahmedabad, on 3-9-1993, asthe sanction under Section 20-A(2) of TADA. We are reproducingExt. 63 below:

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“Sr. No. J-1/1909/1/Khambalia 55/93

Director General of Police,Dated 3-9-1993Gujarat State,Ahmedabad.

Perused: (1) FIR in respect of offence Registered No. 55/93at Khambalia Police Station 25(1)(b)(a)(b) of Arms Act andSections 3, 4 and 5 of the TADA.

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(2) Application sent by DSP Jamnagar vide his letter No. RB/D/122/1993/1820 dated 9-8-1993.

Having considered the FIR in respect of offence RegisteredNo. 55/93 at Khambalia Police Station District Jamnagar underSection 25(1)(b)(a)(b) of Arms Act and Sections 3, 4 and 5 ofTADA and letter No. RB/D/122/1993/1820 of DSP dated 9-8-1993 seeking permission to apply the provisions of TADAcarefully, I A.K. Tandon, Director General of Police, GujaratState, Ahmedabad under the powers conferred under theamended provisions of TADA (1993) Section 20-A(2) givepermission to add Sections 3, 4 and 5 of TADA.

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A. K. TandonDirector General of Police

AhmedabadFGujarat”

While analyzing the said sanction in paragraph 10, this Court observedthus:

“10. Apparently Ext. 63 makes reference only to two documentswhich alone were available for the Director General of Police toconsider whether sanction should be accorded or not. One is theFIR in this case and the other is the letter sent by the Superintendentseeking permission or sanction. No doubt in that letter to theDirector General of Police the Superintendent of Police hadnarrated the facts of the case. But we may observe that he didnot send any other document relating to the investigation or copy G

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thereof along with the application. Nor did the Director Generalof Police call for any document for his perusal. All that the DGPhad before him to consider the question of granting sanction toprosecute were the copy of the FIR and the application containingsome skeleton facts. There is nothing on record to show that theDirector General of Police called the Superintendent of Police atleast 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-applicationof mind by the Director General of Police, Gujarat State, is evenotherwise writ large in this case. A perusal of Ext. 63 (supra)shows that the Director General of Police in fact did not grantany sanction for the prosecution of the appellants. Last part ofthe order reads: ‘I A.K. Tandon, Director General of Police,Gujarat State, Ahmedabad under the powers conferred under theamended provisions of TADA (1993) Section 20-A(2) givepermission to add Sections 3, 4 and 5 of TADA.’ Thus, whatthe Director General of Police did was to grant permission “toadd Sections 3, 4 and 5 of TADA” and not any sanction toprosecute the appellants. It is pertinent to note here that thepermission to add Sections 3, 4 and 5 of TADA had been grantedby the Home Secretary, the competent authority, much earlierand no such permission was sought for from the Director Generalof Police by the DSP. The Designated Court thus, failed to noticethat Ext. 63 was not an order of sanction but an unnecessarypermission of the Director General of Police to add Sections 3, 4and 5 of TADA. The Director General of Police, apparently, actedin a very casual manner and instead of discharging his statutoryobligations under Section 20-A(2) to grant (or not to grant) sanctionfor prosecution proceeded to deal with the request of the DSPcontained in his letter dated 9-8-1993, as if it was a letter seekingpermission to apply the provisions of TADA. The exerciseexhibits that the Director General of Police did not even read, letalone consider “carefully”, the FIR and the letter of the DSP dated9-8-1983. We cannot but express our serious concern at this casualapproach of the Director General of Police. On a plain reading ofExt. 63, therefore, we must hold that it is not an order of sanctionto prosecute the appellants as required by Section 20-A(2) of theAct.”

15. In view of the aforesaid legal and factual position we have nodoubt that sanction relied on by the prosecution in this case wasnot accorded by the Director General of Police in the mannerrequired by law. Ext. 63 is not the result of a serious considerationand the document reflects scanty application of the mind of thesanctioning authority into vital and crucial aspects concerning thematter. It vitiates sanction and hence Ext. 63 cannot be treated assanction under Section 20-A(2) of TADA.”

14. The subject sanction (Exh.84) as aforesaid is issued by thevery same officer and presumably prepared on the same date 3.11.93,but signed and issued on 9[th] November, 1993. Even in the present case,reference is only to two documents reckoned by PW-14 before issuingthe 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 (PW-15) was called for discussion and who, in turn, apprised him of all therelevant details of the investigation, but that fact is not reflected in anycontemporaneous record. No such record has been produced by theprosecution. What is significant is the wording of the subject sanction(Exh.84). When juxtaposed with the sanction in the reported case (Exh.63reproduced in paragraph 9 of the said judgment), it is obvious that evenin the present case, what has been noted in Exh.84 is the permission toapply Sections 3, 4 and 5 of TADA. In paragraphs 14 and 15 of thereported decision extracted above, this Court opined that such notingwas itself indicative of the fact that it was not a sanction to prosecutethe accused but at best giving permission to apply the provisions of TADA.Such a sanction cannot be considered as a valid sanction, much lessissued 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 3/9-11-93 (Exh.84),granted by PW-14 is not a valid sanction within the meaning of Section20-A(2) of TADA. It must, therefore, follow that the Designated Courtcould not have taken cognizance of the offences punishable under TADAfor want of a valid sanction.

16. Reverting to the sanction dated 1[st] April, 2005 (Exh.57),concerning accused No.3/respondent No.3, issued under the signatureof A.K. Bhargav (who is not examined) read with the evidence ofYashodhar Ramchandra Vaidya (PW-10), it may appear that it has beenissued after due consideration of all the relevant material, including policepapers. The evidence of Yashodhar Ramchandra Vaidya (PW-10)

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Aindicates that a Yadi was received on 27[th] March, 2005 in the Office ofDirector General of Police and Chief Police Officer, where the witnesswas working as ASI. The same is dated 11[th] March, 2005 (Exh.55),issued under the signature of R.S. Chudasama (PW-13). It read thus:

“EXHIBIT – 55OUTWARD NO.RB/741/05Office of the Deputy Superintendent of policeKhambhaliya Division, dated 11/03/2005

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To,

The Inspector General of PoliceGujarat State, Gandhinagar.

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Subject : Sanction for filing of charge sheet against accusedUmarmiya @Mamumiya s/0 Ismailmiya s/o Ismailmiya PanjumiyaSaiyed Bukhari resident of Porbandar under section 20 (a) (2) ofthe Terrorist and Disruptive Activities (Prevention) act 1987.The deputy superintendent of police, Khambhaliya Mr. R. S.Chudasama, hereby submit that, D

That investigation of the Salaya Police station Crime I 21/93 undersection 121, 121A, 122, 34 of the IPC, section 26 (1) (AD) (1-AA), 25 (1-B) 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 theTelegraph act and section 3, 4 and 5 of the TADA act, is held byme.

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On 18/06/1993 at 13/30 hours at the Salaya Police Station, onbehalf of the state Mr. B. V. Jani police sub inspector LCB Branch,Jamnagar declared complaint against Anwar OsmanSubhaniyaVagher resident of SalayaHussaini Chowk, HazmiManzil and declared that that accused was arrested with themuddamal of 1) Foreign Carbon Stand gun Magazine worth Rs.2lacs, 2) Foreign made revolver with eight cylinders in chamberworth Rs. 60 thousand, 3) one foreign made revolver with sixcylinders in chamber having worth Rs.45 thousand, 4) onetransmitter walky talky set foreign made worth Rs.1 lakh, 5) standgun live cartridges nos. 52 nos. worth Rs.1040, 6) Revolver livecartridge nos. 4 worth Rs.80/- and the above mentioned crimewas registered in detail.

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The above mentioned accused Anwar Osman, during the remandshowed one transmitter walky talky wireless set worth Rs. 75

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thousand and during the remand he stated that two wireless setwere purchased by him from accused Umarmiya @Mammumiyas/o Ismailmiya @PanjumiyaSaiyed Bukhari resident of Porbandar.In this manner the name of accused Umarmiya was declared forthe crime and this accused thereby remained absconding. As theaccused remained absconding, during the year 1994, the honourablecourt notified the accused as absconding under section 8(3) ofthe TADA act.

This particular accused Umarmiya @Mammumiya s/o Ismailmiya@PanjumiyaSaiyed Bukhari resident of Probandar, was arrestedfor the Porbandar city Kamlabaug B Division police station CrimeI 43/94 under sections 3, 4, 5, etc. of the TADA act on 10/12/2004and he was brought before the Probandar Judicial First Classmagistrate court No.1. In this particular case, the transfer warrantwas issued by the Jamnagar designated court on 14/12/2004, itwas sunmitted before the Porbandar court and the accused wasbrought before me after obtaining his custody by the police subinspector Mr. B. V. Pander on 08/02/2005. This particular accusedwas arrested as per proceedings in its presence of the panchwitnesses on 08/02/2005 at 23-00 hours. During the hearing, theaccused was brought before the honourable additional sessionsand designated judge Khambhaliya and a remand of days-30 weresought for the accused and therefore the honourable courtapproved the remand in police custody, of the accused till 11-00hours of 14/02/2005. During the remand, the accused was inquiredfrom and he mentioned that, the two Walky Talky set that he gaveto Anwar Osman Subhaniya were taken by him from his brotherAbdullah Osman Subhaniya in the year 1985 for smugglingactivities. Thereafter he gave both these Walky Talky sets toAnwar Osman Suhaniya and thereby these details were divulgedduring the investigation. Upon investigating as to Abdullah OsmanSubhaniya, it came out during the investigation that, that particularperson does not reside in Salaya and has gone to Abu Dhabhi(Foreign nation). As for this, the further remand of 15 days wassought for the accused but it was rejected by the court and therebyhe was taken under judicial custody.

The evidence found during the investigation against the accusedare hereby marked and provided.

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AM a rk AS alaya po lice s ta tio n Cr im e I 21/ 93 F IR M a rk B P a nc h na m a fo r tak in g in to cu st o dy th e w e apo n s da ted 1 8/0 6/1 993 M a rk CD is cov ery p a n ch n am a d ate d 2 9/0 6/1 993 fo r W a lk y Talky sh o wn b y t h e a cc used An wa r Osm a n S u bh a n iya d u ring th e r em an d. M a rk DTo t al 2 3 s tat em en ts o f th e po lice officer Ba n d s ta ff th at w ere p rese n t in th e raidin g p arty . M a rk E Th e s ta t em en t of th e a cc u sed A nw a r O sm a n S u bh an iya da ted 2 1/0 6/1 99 3 M a rk FTh e o rd er pa s sed fo r app lica tio n o f TA DA s ect io n s in th e S alay a Cr im e I 2 1/9 3M a rk GTh e letter m en tio n in g th e d et ails o f c ase re giste red ag a in s t t he accu se d CU m a rm iya @ M a m m u m iy a s/o Is m a ilm iya by Cu sto m s P or ba n dar fo r sm ugg lin g silv er. M a rk HTh e FS L cert ifica t e issu e d b y A h m e da ba d office fo r th e w ea po n s ta ken in to cu sto dy. M a rk I Th e ch a rg e s he et n o .1 9/9 4 reg ist ere d a g a in st t h e acc u sed A n w a r O sm a n DS u b h an iya on 18/ 06 /19 94 a n d th e co p y of the c h a rge sh e et w h e rein th e a cc u sed M a m m u m iy a Pa n ju m iya S a iye d is sh o w n as a bsc on d in g u n de r co lu m n n o .2.M a rk JTh e let ter un d er rep or t n o.4 /93 u n d er se ctio n 8(3)(A ) o f TA D A a ct a ga in st th e a cc u sed M a m m u m iya Pan ju m iya .M a rk KTh e pa p ers w h erein th e accu se d EM a m m u m iya Pa n ju m iya w as dec la re d a b sco n ding .M a rk LTh e t ran sfer w arr an t of accu se d M a m m u m iya Pan ju m iya .M a rk MTh e p hy sical situ ation pa n ch n am a d ated 08 /02 /05 a t t h e tim e o f a rre st o f a cc u sed M a m m u m iya Pan ju m iya .M a rk NF ace m a rk reg ist er fo r accu se d FM a m m u m iya Pan ju m iya .M a rk OTh e ex p lan a tio n d a ted 08/ 02/ 200 5 to 1 4/0 2/2 005 by a cc u sed M a m m um iya P anju m iya .M a rk PTh e fu rt he r sta te m en t da t ed 1 1-1 2/0 2/2 005 by ac cu sed A n w ar O sm a n S u b h an iya .M a rk QTh e fu rt he r sta te m en t da t ed 1 1-1 2/0 2/2 005 by acc u sed J u n us Ibra h im GG a jan . M a rk RTh e co py of co u r t o rd er fo r ap plica tio n n o .88/ 05 filed fo r day s-30 re m a n d a g a in st t h e a c cused M a m m um iya P anju m iya .M a rk Th e co py of co u r t o rd er fo r ap plica tio n Sn o .96/ 05 filed fo r day s-15 re m a n d a g a in st t h e a c cused M a m m um iya HP anju m iya .

In this manner, as for the purpose of filing a charge sheet underSection 20(A) (2) of the TADA act against the accused SaiyedBukhari aged 50 years, resident of Porbandar Thakkar Plot, Sherino.1, Jamadar Fadi, the sanction is required and thus it is herebysubmitted that the above mentioned documents be taken intoperusal and the sanction be provided for filing a charge sheetagainst the accused under section 20(A)(2) of the TADA act.Kindly consider the above.

Sd/- illegible(R S Chudasama)Deputy Superintendent of PoliceKhambhaliya Division Sent with regards, Superintendent of Police, Jamnagar.”

17. This was followed by a communication sent under the signatureof Manoj Shashidhar, Superintendent of Police, Jamnagar (not examined)dated 15[th] March, 2005 (Exh.56). It read thus:

“EXHIBIT – 56

“OUTWARD NO. RB/illegible 4/2005Office of the Superintendent of policeJamnagar, dated 15/03/2005

To,

The Inspector General of Police

Gujarat State, Gandhinagar.

Subject : Sanction for filing of charge sheet against accusedUmarmiya @Mamumiya s/o Ismailmiya s/o Ismilmiya PanjumiyaSaiyed Bukhari resident of Probandar under section 20(a)(2) ofthe Terrorist and Disruptive Activities (Prevention) act 1987, soas to held further proceedings against him before the honourablecourt.

Reference: The Deputy superintendent of police, Khambhaliyadivision letter No.RB/741/05 dated 11/03/2005.

The investigation of the Salaya Police station Crime I 21/93 undersection 121, 121A, 122, 34 of the IPC, section 26(1) (AD) (1-AA), 25 (1-B) 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 theTelegraph act and section 3, 4 and 5 of the TADA act, is held bydeputy superintendent of police, Khambhaliya Mr. R.S.Chudasama.

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On 18/06/1993 at 13/30 hours at the Salaya Police Station, onbehalf of the state Mr. B. V. Jani police sub inspector LCB Branch,Jamnagar declared complaint against Anwar Osman SubhaniyaVagher resident of Salaya Hussaini Chowk, Hazmi Manzil anddeclared that the accused was arrested with the muddamal of 1)Foreign Carbon Stand gun Magazine worth Rs. 2 lacs, 2) Foreignmade revolver with eight cylinders in chamber worth Rs.60thousand, 3) one foreign made revolver with six cylinders inchamber having worth Rs. 45 thousand, 4) one transmitter walkytalky set foreign made worth Rs.1 lakh, 5) stand gun live cartridgesnos. 52 nos. worth Rs. 1040, 6) Revolver live cartridges nos. 4worth Rs. 80/- and the above mentioned crime was registered indetail.

The above mentioned accused Anwar Osman, during the remandshowed one transmitter walky talky wireless set worth Rs.75thousand and during the remand he stated that two wireless setwere purchased by him from accused Umarmiya @Mammumiyas/o Ismailmiya @Panjumiya Saiyed Bukhari resident of Probandar.In this manner the name of accused Umarmiya @ Mammumiyas/o Ismailmiya @Panjumiya Saiyed Bukhari resident of Porbandarwas declared for the crime and this accused thereby remainedabsconding. As the accused remained absconding, during the year1994, the honourable court notified the accused as abscondingunder section 8(3) of the TADA act.

The particular accused Umarmiya @ Mammumiya s/o Ismailmiya@ Panjumiya Saiyed Bukhari resident of Porbandar, was arrestedfor the Probandar city Kamlabaug B Division police station CrimeI 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 Classmagistrate court no.1. In this particular case, the transfer warrantwas issued by the Jamnagar designated court on 14/12/2004, itwas submitted before the Porbandar court. The accused Umarmiya@Mammumiya s/o Ismailmiya @Panjumiya Saiyed Bukhariresident of Porbandar was brought before superintendent of police,Khambhaliya division Mr. R.S. Chudasama after obtaining hiscustody by the police sub inspector Mr. B.V. Pander on 08/02/2005. This particular accused was arrested as per proceedings inthe presence of the panch witnesses on 08/02/2005 at 23-00 hours.

During the hearing, the accused was brought before the honourableadditional sessions and designated judge Khambhaliya and aremand of days-30 were sought for the accused and thereforethe honourable court approved the remand in police custody, ofthe accused till 11-00 hours of 14/02/2005. During the remand,the accused was inquired from and he mentioned that, the twoWalky Talky set that he gave to Anwar Osman Subhaniya weretaken by him from his brother Abdullah Osman Subhaniya in theyear 1985 for smuggling activities. Thereafter he gave both theseWalky Talky sets to Anwar Osman Suhaniya during 1989/90 andthereby these details were divulged during the investigation. Uponinvestigating as to Abdullah Osman Subhaniya, it came out duringthe investigation that, that particular person does not reside inSalaya and has gone to Abu Dhabhi (Foreign nation). As for this,the further remand of 15 days were sought for the accusedUmarmiya @Mammumiya s/o Ismailmiya @Panjumiya SaiyedBukhari resident of Probandar but it was rejected by the courtand thereby he was taken under judicial custody. The evidencefound during the investigation against the accused are herebyprovided as marked along with the letter submitted.

In this manner, as for the purpose of filing a charge sheet undersection 20(A) (2) of the TADA act against the accused Umarmiya@Mammumiya s/o Ismailmiya @Panjumiya Saiyed Bukhari aged50 years, resident of Porbandar Thakkar Plot, Sheri no.1, JamadarFadi, 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 PoliceJamnagar Copy sent:Deputy Superintendent of policeKhambhaliya Division, Khambhaliya”

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18. The purported sanction dated 1[st] April, 2005 (Exh.57) wasfinally issued under the signature of A.K. Bhargav, IGP (not examined).The stated sanction reads thus:

“Exh.57.

No. G-1(Crime/T-1/TADA chargesheet/approval/1239/2005Office of DIG and Chief Police officer Gujarat State Police Bhavan, Sector 18 Gandhinagar.. proved indeposition of Yashodhar Ramchandra in sessions case No.3/94mark 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/oIsmailmiya Alias Panjumiya Bukshari resi. of Porbander foroffence 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 ofTADA act who was arrested on Salaya CR No. 21/93.

2. Proposal for giving sanctioned for chargesheet under TADAact letter No. RBR/1014/2005 dtd. 15-3-05 of DSP, Jamnagar.

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After carefully considering and going through the proposal forgiving approval for chargesheet under the TADA act of the papersand the letter No.RBR/1014/2005 dtd. 15-3-05 of DSP, Jamnagarand going through the FIR filed against accused UmarmiyaMamumiya S/o. Ismailmiya alias Panjumiya Bukhari of Porbanderwho is arrested for the offence u/s. 121, 121 A, 122, 34 of IPCand u/s. (1) (AD) (1AA) 25(1B) A,B,C,F,G and 27(1), 29(A) ofArms and u/s. (1) A of Wireless telegraphic act and u/s. 20 ofTelegraph acts and under sec. 3,4,5 of TADA act in Salaya Policestation 21/93 Dist. , Jamnagar I A.K. Bhargav IG and ChiefPolice officer Gujarat State Gandhinagar do hereby grant approval/sanctioned under the provisions of TADA Act 1980 sec. 20(A)(2) Amended 1993 for filing chargesheet against Umarmiya aliasMamumiya S/o. Ismailmiya Alias Panjumiya Bukhari of Porbanderin CR No.21/39 u/s. 20(A) (2) of TADA act.

Sd/ A.K. BhargavAIGP

and Chief Police officerGujarat State Gandhinagar.

Inward No. 14237 officeof DSP, Jamnagar.

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To IO and SDPO KBLfor N/A.Sd/- Illegible15-4-05"

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19. On a bare perusal of Exh.57, there is nothing to indicate as towhether the sanctioning authority was conscious of the materials gatheredduring investigation qua the concerned accused (respondent No.3), whichmerely suggested possession and recovery of two walky-talkies fromhim. If that is the only incriminatory material against accused No.3/respondent No.3, the sanctioning authority ought to have pondered overthe crucial aspects including as to how such possession would entail incommission of any offence muchless punishable under Sections 4 or 5of TADA. Further, section 3 of TADA posits different offences, namely,terrorist acts [Section 3(2)], being party to conspiracy or abetment orknowingly facilitating the commission of terrorist acts [Section 3(3)],harbouring or concealing any terrorist [Section 3(4)], being member ofa terrorist gang or terrorist organization, which is involved in terroristacts [Section 3(5)], and to hold any property derived or obtained fromcommission of any terrorist act [Section 3(6)]. The sanctioning authoritywas under a bounden duty to accord sanction, specific to offences, fromamongst the different offences under sub-sections (1) to (6) of Section3 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 walky-talkies.Section 4 refers to disruptive activities whereas Section 5 refers topossession of unauthorized classified arms and ammunition. A walky-talky is certainly not one of those classified arms and ammunition. In ouropinion, the purported sanction vide Exh.57 also suffers from the vice ofnon-application of mind, on this count alone.

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FGH

20. The necessity of obtaining prior sanction under Section 20-A(2) need not be underscored considering the draconian provisions ofTADA. In our opinion, therefore, even sanction qua accused No.3/respondent No.3 dated 1[st] April, 2005 (Exh.57) does not stand the test of

Aa valid sanction to prosecute him for offences punishable under TADA.Indeed, the prosecution has relied on the evidence of PW-10 and PW-13. That, in our opinion, at best, would suggest that all the relevant papersgathered during the investigation were placed for consideration beforethe sanctioning authority. The fact remains that Exh.57 issued under thesignature of A.K. Bhargav, IGP, makes no attempt to even remotelyBindicate as to why sanction to prosecution for offences punishable underSections 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 twowalky-talkies from him. Further, he has not been examined by theprosecution which also could have thrown light on that crucial aspect.CTherefore, we have no hesitation in concluding that the sanction dated1[st] April, 2005 (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 didnot frame any issue regarding validity of prior approval under Section D20-A(1) or prior sanction under Section 20-A(2). As the question ofprior approval or prior sanction goes to the root of the matter and is sinequa non for a valid prosecution concerning TADA offences and includingthe jurisdiction of the Designated Court, no fault can be found with theDesignated Court for having answered that issue at the outset.

22. The next question is whether the Designated Court could haveEhad convicted the respondents for offences punishable under otherenactments (other than TADA). Even though the Designated Court, inparagraph 17 of the impugned judgment, took note of the fact that thelearned APP had not alternatively argued this point, it went on to analysethe efficacy of the evidence on record in reference to offences under

Fother enactments namely, IPC, Arms Act, Indian Telegraph Act, IndianWireless and Telegraphy Act. It noted that the fulcrum of the prosecutioncase was founded on the confessional statement of the accused, whichcame to be recorded under the provisions of TADA. It took the viewthat since the accused cannot be proceeded for TADA offences for lack of a valid sanction, that confessional statement will be of no availGand cannot be looked at in reference to charges for offences underother enactments (not being admissible) muchless to record a finding ofguilt against the accused for offences under the other enactments. Italso found that the evidence regarding search and recovery was repletewith fatal deficiencies and was insufficient to establish the complicity ofHthe respondents in the commission of offences under the other enactments.

Thus, it held that the accused deserved to be acquitted. However, relyingon the observations in paragraphs 17 and 18 of Gadhvi’s case (supra),it erroneously opined that the Designated Court had no independent powerto try any other offence, as valid sanction under Section 20-A (2) wasnot in place.

23. We may hasten to observe that it is now well settled that theDesignated Court, besides trying the case under TADA, can also tryany other offence with which the accused may be charged at the sametrial if the offences are connected with offences under TADA. For,implicit power has been bestowed upon the Designated Court to convictthe accused for offences under other enactments if there is legallyadmissible evidence to establish those charges. We may usefully referto the dictum in paragraph 37 of the Constitution Bench judgment inPrakash 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 andconvict the accused for offences committed under any other lawalong with offences committed under the Act, if the offence isconnected with such other offence. The language “if the offenceis connected with such other offence” employed in Section 12(1)of the Act has great significance. The necessary corollary isthat once the other offence is connected with the offenceunder TADA and if the accused is charged under the Codeand tried together in the same trial, the Designated Courtis empowered to convict the accused for the offence underany other law, notwithstanding the fact that no offence underTADA is made out. This could be the only intendment of thelegislature. To hold otherwise, would amount to rewrite or recastlegislation and read something into it which is not there.”

(emphasis supplied)

This exposition has been applied by a Two Judge Bench in a recentdecision in Ashrafkhan alias Babu Munnekhan Pathan & Anr. Vs.State of Gujarat[10], as is evident from paragraph 41, which reads thus:

“41. We have held the conviction of the accused to havebeen vitiated on account of non-compliance with Section20-A(1) of TADA and thus, it may be permissible in law tomaintain the conviction under the Arms Act and the10 (2012) 11 SCC 606

A

B

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D

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G

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AExplosive Substances Act but that shall only be possiblewhen there are legally admissible evidence to establishthose charges. The Designated Court has only relied on theconfessions recorded under TADA to convict the accused foroffences under the Arms Act and the Explosive Substances Act.In view of our finding that their conviction is vitiated onBaccount of non-compliance of the mandatory requirementof prior approval under Section 20-A(1) of TADA, theconfessions recorded cannot be looked into to establishthe guilt under the aforesaid Acts. Hence, the conviction ofthe accused under Sections 7 and 25(1-A) of the Arms Act andCSections 4, 5 and 6 of the Explosive Substances Act cannot alsobe allowed to stand.”

(emphasis supplied)

24. Even in the present case, it is noticed that the prosecution hasessentially relied upon the confessional statement of the accused recordedDunder the provisions of TADA. That will be of no avail and certainly notadmissible against the accused in the trial for offences under otherenactments, especially when the Designated Court could not have takencognizance of the offence under TADA for lack of a valid sanction.Additionally, in the present case, the evidence produced by the prosecutionregarding search and seizure is replete with fatal deficiencies. We doEnot wish to deviate from the view taken by the Designated Court thatthere was no legally admissible evidence to establish the charges againstthe respondents regarding offences under other enactments (other thanTADA).

25. Having said this, it must follow that the conclusion reached byFthe Designated Court, that the respondents are not guilty of the offencesfor which they were charged and tried, needs no interference for thereasons mentioned hitherto.

26. In view of the above, the appeals must fail and are dismissed.

GDevika Gujral

Appeals dismissed.

H