State Of Maharashtra v. Abdul Hamid Haji Mohammed .

J.S Verma, J.— This appeal is by a certificate under Article 134-A of the Constitution of India granted by the Bombay High Court to appeal against its judgment dated January 18, 1994 in Criminal Writ Petition No. 902 of 1993 quashing the proceedings under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the “TADA Act”) against respondent Abdul Hamid Haji Mohammed on the ground that the provisions of TADA Act are not attracted to the allegations against him. In the charge-sheet dated November 4, 1993 filed in the Designated Court, Greater Bombay alleging the commission of offences punishable under the TADA Act by the 189 accused named therein, respondent Abdul Hamid is shown as accused 61. In the impugned judgment dated January 18, 1994, the High Court has held that the provisions of TADA Act are not attracted to the case against the respondent and consequently the proceedings against him before the Designated Court under the TADA Act have been quashed. Consequently, the High Court has directed the release of the petitioner on bail on terms mentioned in its judgment.

2. The city of Bombay was rocked by a series of bomb blasts on March 12, 1993 which killed 257 persons, maimed another more than 700 persons and destroyed property worth about Rs 27 crores. These bomb blasts occurred in important Government and public sector buildings of stock exchange, Air India, Sahar International Airport, several five star hotels and busy commercial localities such as Zaveri Bazar, Katha Bazar and Century Bazar. Petrol pumps adjoining important locations were also the target of these blasts. The bomb blasts were accompanied by explosion of hand grenades in sensitive areas intended to incite communal violence which caused riot in certain areas. These incidents were a part of carefully planned strategy calculated to terrorise the Governments in the State as well as at the Centre and to incite communal violence.

3. It was during the investigation into these crimes that respondent Abdul Hamid was arrested on April 18, 1993. It is alleged that on the same day soon after his arrest, the respondent gave information which led to discovery of six Chinese AK-56 rifles and twelve magazines kept concealed in a gunny bag buried three-and-a-half feet deep in the compound of Picnic Guest House behind New Juhu Grand Hotel, Bombay, which the respondent dug out from that place and handed over to the police. It is alleged that a large number of such rifles were smuggled into the country through the Porbunder Port along with other explosives, arms and ammunition, as a part of the conspiracy to create country-wide unrest and terror of which the Bombay bomb blasts were a part. In substance, this is the allegation against the persons named as accused, including respondent Abdul Hamid, in the charge-sheet dated November 4, 1993 filed in the Designated Court for trial of the accused persons for commission of offences under the TADA Act.

4. After arrest of the accused as aforesaid on April 18, 1993 alleging commission of offences under the TADA Act, an application for his release on bail was filed in the Designated Court on May 24, 1993. During the pendency of that bail application, the said Writ Petition (Criminal) No. 902 of 1993 was filed in the Bombay High Court under Article 226 of the Constitution challenging the resort to TADA Act for prosecution of the respondent. The High Court made a direction on July 14, 1993 to the Designated Court to dispose of respondent's bail application. On August 7, 1993, the Designated Court made the order rejecting respondent's bail application, taking the view that the allegations against the respondent indicated prima facie the applicability of provisions of TADA Act. Thereafter on November 4, 1993, the charge-sheet was filed in the Designated Court. The High Court then heard the writ petition and by the impugned judgment dated January 18, 1994 came to the conclusion as aforesaid that the provisions of TADA Act are not attracted to the case of the respondent and accordingly the prosecution against the respondent in the Designated Court under TADA Act was quashed. The High Court, however, held that the respondent is liable to be prosecuted under the Arms Act, 1959 and therefore, the case against him be transferred to the Court of Session for taking cognizance of the offence punishable under the Arms Act. On this view, the High Court also directed release of the respondent on bail on terms indicated in its judgment. However, the High Court accepted the submission made on behalf of the State that important questions of law were involved for decision relating to the High Court's jurisdiction in such a matter and therefore, it certified that the case is a fit one for appeal to the Supreme Court. This is how this appeal arises.

5. The learned Additional Solicitor General submitted that the High Court was not empowered in exercise of its extraordinary jurisdiction under Article 226 of the Constitution to quash a prosecution launched for punishment of offences under the TADA Act and, therefore, the impugned judgment is liable to be set aside for this reason alone. He further submitted that even on merits the order of the Designated Court refusing bail to the respondent is not open to interference and if the matter is examined afresh, the nature of accusation against the respondent and the material on which it is based clearly attracts the provisions of TADA Act justifying refusal of bail to the respondent.

6. In reply, Shri Ram Jethmalani for the respondent first submitted that the certificate granted by the High Court is liable to be revoked since there is no important question of law needing decision of this Court involved in the case; and without such a certificate, the impugned judgment of the High Court which merely grants bail is not liable to interference by this Court under Article 136 of the Constitution. Shri Jethmalani further submitted that on merits, the only material against the respondent, placing the prosecution case at the highest, is the alleged discovery of six AK-56 rifles and twelve empty magazines in the manner alleged, which without anything more, can constitute only an offence punishable under the Arms Act and no more. Shri Jethmalani submitted that the further material necessary to constitute the offence of conspiracy or the offences punishable under Section 3 and/or Sections 5 or 6 of TADA Act is totally absent even if the allegations made in the charge-sheet are accepted at their face value. On this basis, it was submitted by Shri Jethmalani that the provisions of TADA Act cannot be invoked and the only offence which can be made out against the respondent on these allegations is that punishable under the Arms Act. The impugned judgment of the High Court is justified by him on this basis.

7. The first question is : Whether the High Court was empowered in the present case to invoke its jurisdiction under Article 226 of the Constitution to examine the correctness of the view taken by the Designated Court and to quash the prosecution of the respondent under the TADA Act? Shri Jethmalani contended, placing reliance on the decisions in R.P Kapur v. State of Punjab (1960) 3 SCR 388, AIR 1960 SC 866, 1960 Cri LJ 1239 and State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 that in the facts of this case, the High Court had such a jurisdiction since there is no accusation against the respondent in the charge-sheet filed in the Designated Court which, if believed, must result in his conviction for an offence punishable under TADA Act. We are not impressed by this argument of Shri Jethmalani. It is no doubt true that in an extreme case if the only accusation against the respondent prosecuted in the Designated Court in accordance with the provisions of TADA Act is such that ex facie it cannot constitute an offence punishable under TADA Act, then the High Court may be justified in invoking the power under Article 226 of the Constitution on the ground that the detention of the accused is not under the provisions of TADA Act. We may hasten to add that this can happen only in extreme cases which would be rare and that power of the High Court is not exercisable in cases like the present where it may be debatable whether the direct accusation made in conjunction with the attendant circumstances, if proved to be true, is likely to result in conviction for an offence under TADA Act. The moment there is a debatable area in the case, it is not amenable to the writ jurisdiction of the High Court under Article 226 of the Constitution and the gamut of the procedure prescribed under TADA Act must be followed, namely, raising the objection before the Designated Court and, if necessary, challenging the order of the Designated Court by appeal in the Supreme Court as provided in Section 19 of TADA Act. In view of the express provision of appeal to the Supreme Court against any judgment, sentence or order, not being an interlocutory order of a Designated Court, there is no occasion for the High Court to examine merits of the order made by the Designated Court that the Act applies. We have no doubt that in the present case wherein the High Court had to perform the laboured exercise of scrutinising the material containing the accusation made against the respondent and the merits of the findings recorded by the Designated Court holding that the provisions of TADA Act were attracted, there was sufficient indication that the writ jurisdiction of the High Court under Article 226 of the Constitution was not available. The ratio of the decisions of this Court in R.P Kapur (1960) 3 SCR 388, AIR 1960 SC 866, 1960 Cri LJ 1239 and Bhajan Lal 1992 Supp (1) SCC 335 on which reliance is placed by Shri Jethmalani, has no application to the facts of the present case. There was thus no justification for the High Court in the present case to exercise its jurisdiction under Article 226 of the Constitution for examining the merits of the controversy much less for quashing the prosecution of respondent Abdul Hamid in the Designated Court for offences punishable under TADA Act.

8. The above conclusion alone is sufficient to set aside the impugned order made by the High Court. However, elaborate arguments were advanced by Shri Jethmalani on behalf of the respondent relating to the nature of accusation made against the respondent to support the High Court's view on merits. He contended that the provisions of TADA Act are not attracted in this case and that the respondent is triable only for commission of offences under the Arms Act. On this basis, Shri Jethmalani further contended that no interference with the ultimate order made by the High Court is called for. We are unable to accept even this contention. However, as a result of the view taken by us, the trial of the respondent in accordance with the provisions of TADA Act in the Designated Court has to continue and, therefore, we are confining our observations to the minimum necessary for dealing with this contention to avoid any possible prejudice to either side during the trial.

9. As noticed earlier, the submission of Shri Jethmalani is that except for the bare fact of the discovery of six Chinese AK-56 rifles and twelve empty magazines thereof as a result of the information given by the respondent in the manner already indicated, there is no other material against the respondent even in the charge-sheet dated November 4, 1993 filed in the Designated Court after the order dated August 7, 1993 made by the Designated Court dismissing the respondent's bail application. Shri Jethmalani submitted that this accusation, if proved at the trial, can constitute only an offence under the Arms Act and not either under Section 3 or Section 5 of TADA Act much less under Section 6 thereof or the offence of conspiracy which has been alleged generally in the charge-sheet. Shri Jethmalani placed reliance on the decision of this Court in Paras Ram v. State of Haryana (1992) 4 SCC 662 to support his submission that mere possession of AK-56 rifles without its ammunition cannot constitute the offence punishable under Section 5 of TADA Act. On the other hand, the learned Additional Solicitor General submitted that discovery of six rifles and twelve magazines by the respondent is not the only accusation against the respondent. He also referred to certain circumstances indicating the close association of respondent Abdul Hamid with one Ijaz who is alleged to be a close associate of Dawood Ibrahim, one of the prime accused in the case and concealment of these rifles and magazines by the respondent in a part of the property in which the respondent and Ijaz have interest as well as the allegation of large-scale smuggling of such rifles, ammunition and other explosives into the country with the complicity of customs officers who are all being prosecuted simultaneously, as some of the circumstances to be taken into account in conjunction with the discovery of these rifles and magazines to support the prosecution case of conspiracy etc. against all the accused including the respondent. The learned Additional Solicitor General referred to the definition of ‘abet’ in Section 2(1)(a) of TADA Act to contend that even some ‘association’ of the kind mentioned therein amounts to abetment in order to constitute the offence punishable under Section 3 of TADA Act. He also contended that the decision in Paras Ram (1992) 4 SCC 662 is distinguishable since it related merely to possession of a country-made pistol in the notified area without any ammunition and with no other material against the accused to associate him with any terrorist or disruptive activity.

10. We do not propose to make any observation on the merits of the rival contentions except to say that, as we read the charge-sheet, it is not correct to say that the only accusation therein against the respondent is merely of discovery of six Chinese AK-56 rifles and twelve empty magazines made by him. We may also add that a Chinese AK-56 rifle is not to be equated with a country-made pistol and the number of rifles along with the several magazines concealed in the manner alleged, if proved, may also have significance together with the other circumstances alleged against the respondent relating to terrorist activities. This is, however, a matter of appreciation of evidence at the trial and it cannot be said that the allegations made against the respondent in the charge-sheet can constitute merely an offence punishable under the Arms Act and not under TADA Act. The view taken by the High Court on this aspect is contrary to law apart from being unjustified and impermissible in exercise of its jurisdiction under Article 226 of the Constitution.

11. Consequently, this appeal is allowed. The impugned judgment dated January 18, 1994 of the Bombay High Court is set aside resulting in dismissal of Writ Petition (Criminal) No. 902 of 1993 filed by the respondent in the High Court. The result is that the prosecution of respondent Abdul Hamid Haji Mohammed in the Designated Court shall continue in accordance with the provisions of TADA Act and cancellation of his bail is confirmed.