Ashrafkhan Alias Babu Munnekhan Pathan And Another v. State Of Gujarat .

The Judgment of the Court was delivered by

C.K Prasad, J.— These appeals have been filed against the judgment and order dated 31-1-2002 passed by the Additional Designated Judge, Court No. 3, Ahmedabad City in TADA Cases Nos. 15 of 1995 and 6 of 1996 consolidated with TADA Cases Nos. 32 of 1994 and 43 of 1996.

2. According to the prosecution, Abdul Wahab Abdul Majid Khan was arrested in a case of murder. On being interrogated in that case, he made startling and shocking revelations. He disclosed that accused Yusuf Laplap, who is involved in illegal business of liquor and running a gambling den is in possession of four foreign-made hand-grenades, revolvers and AK-47 rifles. The fountainhead of the weapons, according to the information is notorious criminal Abdul Latif Shaikh and came at the hand of accused Yusuf Laplap through his close associate accused Abdul Sattar alias Sattar Chacha. Sattar gave the arms and explosives to accused Siraj alias Siraj Dadhi, a constable attached to Vejalpur Police Station. He in turn delivered those arms and explosives to accused Imtiyaz Nuruddin, the servant of Yusuf Laplap at the latter's instance. The aforesaid information was passed on to A.K Suroliya, the Deputy Commissioner of Police, Crime Branch. The police party searched the house of the accused Yusuf Laplap in the night and found him leaving the house with two bags. From one of the bags one revolver with ISI mark and five foreign-made hand-grenades were recovered and from another bag five detonators having clips affixed to it were found.

3. According to the allegation, the arms and explosives seized were similar to those used in Ahmedabad City earlier by gang of criminals and intended to be used in the forthcoming “Jagannath Rath Yatra”. The information given by Police Inspector, U.T Brahmbhatt led to the registration of Crime No. 1-CR No. 11 of 1994 dated 9-6-1994, at the Crime Branch Police Station under Section 120-B of the Penal Code, 1860, Sections 3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act (hereinafter referred to as “TADA”), Sections 7 and 25(1) of the Arms Act and Sections 4, 5 and 6 of the Explosive Substances Act against seven accused persons.

4. It is the case of the prosecution that Police Inspector U.T Brahmbhatt, before recording the first information report, sought prior approval of the Deputy Commissioner of Police, Crime Branch, for registration of the case which was granted. It is only thereafter, the first information report was registered and the investigation proceeded. It is also their case that another approval was granted on 15-6-1994 by the Additional Chief Secretary, Home Department. Not only that, the Deputy Commissioner of Police, Crime Branch, PW 65 A.R Suroliya gave another approval on 11-8-1994.

5. During the course of investigation, the complicity of large number of persons surfaced. In all 46 AK-56 rifles, 40 boxes of cartridges, 99 bombs, 110 fuse pins and 110 magazines were brought to Ahmedabad and seized by the investigating agency from various accused persons. These were distributed to the accused persons for killing and terrorising the Hindu community during “Jagannath Rath Yatra”. All those persons who were either found in possession or involved in transporting or facilitating transportation of those weapons were charge-sheeted. All these were intended to be used to disturb peace and communal harmony during “Jagannath Rath Yatra”.

6. Ultimately, the investigating agency, on 16-12-1994 submitted the first charge-sheet against 14 accused persons under Sections 120-B, 121-A, 122, 123 and 188 of the Penal Code, Sections 3 and 5 of TADA, Sections 4, 5 and 6 of the Explosive Substances Act, Section 25(1-A) of the Arms Act, Section 135 of the Customs Act and Section 135(1) of the Bombay Police Act. The second charge-sheet came to be filed on 23-5-1995 against 2 accused persons. The investigation did not end there and the third, fourth and fifth charge-sheets were submitted on 17-4-1996, 20-12-1996 and 24-5-2000 against 33, 11 and 2 accused persons respectively. Thus, altogether 62 persons were charge-sheeted.

7. The Designated Court framed charges against 60 accused persons under Section 120-B of the Penal Code, Sections 3 and 5 of TADA, Sections 4, 5 and 6 of the Explosive Substances Act and Section 25(1-A) of the Arms Act. However, Accused 57, namely, Mohmad Harun alias Munna alias Riyaz alias Chhote Rahim, has been discharged by the Designated Court by its order dated 24-8-2001. During the course of trial six accused, namely, Adambhai Yusufbhai Mandli (Shaikh), Accused 11; Fanes Aehmohmad Ansari, Accused 18; Abdullatif Abdulvahab Shaikh, Accused 35; Ikbal Jabbarkhan Pathan, Accused 38; Firoz alias Firoz Kankani, Accused 56 and Jay Prakash Singh alias Bachchi Singh, Accused 60 died. One accused, namely, Accused 9, Mohmad Ismail Abdul Shaikh absconded.

8. In order to bring home the charge, the prosecution altogether examined 70 witnesses and a large number of documents were also exhibited. The accused were given opportunity to explain the circumstances appearing in the evidence against them and their defence was of denial simpliciter. The Designated Court, on analysis of the evidence, both oral and documentary, vide its order dated 31-1-2002 convicted 11 accused persons under Sections 3 and 5 of TADA, Sections 7 and 25(1-A) of the Arms Act and Sections 4, 5 and 6 of the Explosive Substances Act. They have been sentenced to undergo rigorous imprisonment for five years for the offence punishable under Sections 3 and 5 of TADA and fine with default clause. The Designated Court further sentenced those convicted under Sections 4, 5 and 6 of the Explosive Substances Act to suffer rigorous imprisonment for five years and fine with default clause. They were further sentenced to undergo rigorous imprisonment for five years and fine with default clause under Sections 7 and 25(1-A) of the Arms Act. All the sentences were directed to run concurrently. The Designated Court, however, acquitted 41 accused of all the charges levelled against them.

9. Those found guilty have preferred Criminal Appeal No. 482 of 2002 (Ashrafkhan v. State of Gujarat) and Criminal Appeals Nos. 486-87 of 2002 (Yusufkhan v. State of Gujarat). The State of Gujarat, aggrieved by the inadequacy of sentence, preferred Criminal Appeals Nos. 762-65 of 2002 (State of Gujarat v. Yusufkhan) and also preferred Criminal Appeals Nos. 766-68 of 2002 (State of Gujarat v. Abdul Khurdush Abdul Gani Shaikh) against acquittal.

10. As all these appeals arise out of the same judgment, they were heard together and are being disposed of by this common judgment.

11. We have heard Mr Sushil Kumar and Mr Ranjit Kumar learned Senior Counsel, Mr Garvesh Kabra, learned amicus curiae, Mr Sanjay Jain and Ms Meenakshi Arora, learned counsel on behalf of the accused. Mr Yashank Adhyaru, learned Senior Counsel was heard on behalf of the State of Gujarat.

12. In order to assail the conviction several submissions were made by the learned counsel representing the accused. However, as the conviction has to be set aside on a very short ground, we do not consider it either expedient to incorporate or answer those submissions. We may record here that we have incorporated only those parts of the prosecution case which have bearing on the said point and shall discuss hereinafter only those materials which are relevant for adjudication of the said issue.

13. It is the contention of the accused that the first information report under the provisions of TADA was registered without approval of the District Superintendent of Police as contemplated under Section 20-A(1) of TADA and this itself vitiates the conviction.

14. The plea of the State, however, is that such an approval was granted by A.R Suroliya, the Deputy Commissioner of Police, Crime Branch, who is an officer of the rank of District Superintendent of Police. Alternatively, the State contends that Section 20-A of TADA is a two-tiered provision which provides for approval by the Deputy Commissioner under Section 20-A(1) and sanction by the Commissioner under Section 20-A(2) of TADA. In the absence of challenge to the sanction, challenge only to the approval, to use the counsel's word “would be curable defect under Section 465 of the Code of Criminal Procedure”. It has also been pointed out that the accused having not challenged the sanction granted by the Commissioner of Police under Section 20-A(2) of TADA, they cannot assail their conviction on the ground of absence of approval under Section 20-A(1) by the Deputy Commissioner.

15. In order to defend the conviction, the State of Gujarat further pleads that the Designated Court having taken cognizance and decided to try the case by itself under Section 18 of TADA, the prior defects, if any, are rendered irrelevant and cannot be raised. It has also been pointed out that the Designated Court having been empowered to take cognizance under Section 14 of TADA irrespective of absence of compliance with Section 20-A(1) of TADA, its non-compliance would not be fatal to the prosecution. It has also been highlighted that several safeguards have been provided under the scheme of TADA including the power of the court to take cognizance and proceed with the trial and once cognizance has been taken, defects prior to that cannot be allowed to be raised. In any view of the matter, according to the State, absence of approval under Section 20-A(1) of TADA would not vitiate the conviction of the accused persons under other penal provisions.

16. In view of the rival submissions the question for determination is as to whether the Deputy Commissioner, A.R Suroliya gave prior approval on 9-6-1994 or 11-8-1994 for recording the first information report as contemplated under Section 20-A(1) of TADA and in case it is found on facts that no such approval was granted, the effect thereof on the conviction of the accused. Further, the effect of approval by the Additional Chief Secretary, Home Department on 15-6-1994 is also required to be gone into.

17. To prove prior approval by the Deputy Commissioner before the lodging of the first information report, the prosecution has mainly relied on the evidence of the Inspector of Police U.T Brahmbhatt, PW 10 and Deputy Commissioner A.R Suroliya, PW 65. The xerox copy of the approval (Ext. 775) has also been brought on record to establish that. It is not in dispute that officer of the rank of Deputy Commissioner is equivalent to the District Superintendent of Police. U.T Brahmbhatt has stated in his evidence that “Mr Suroliya passed an order, sanctioned the same and an endorsement is also made regarding that”. This witness has been subjected to cross-examination and in the cross-examination he has admitted that the letter asking for approval to investigate and the report under Section 157 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) has been lost while producing the same in the Supreme Court.

18. A.R Suroliya, PW 65, in his evidence has supported the case of the prosecution regarding prior approval. While explaining the absence of the original approval, this witness has stated in his evidence that he had gone to the Supreme Court for hearing of the application filed by the accused Yusuf Laplap and handed over the original papers to the Senior Counsel. According to him, the Senior Counsel told him that after producing the necessary papers before the Supreme Court, the original papers would be sent back but it has not come and despite efforts and inquiry, it could not be traced out. According to his evidence “as the original letter of approval thereof is not found” the xerox copy thereof was produced. It was marked as Ext. 775. In the cross-examination, he reiterated that he had gone to the Supreme Court along with original approval letter and in the bail application of accused Yusuf Laplap, the said approval was produced. He feigned ignorance as to whether entry was made into outward register regarding approval and denied suggestion that he did not receive any proposal for approval nor granted the same and with a view to see that the case does not fall, he had deposed falsely regarding approval. In his cross-examination he has stated as follows:

“I do not know whether there is any such paper in my office or not for grant of approval for which I have deposed.”

19. The Designated Court accepted the case of the prosecution and held that prior approval was granted by the Deputy Commissioner under Section 20-A(1) of TADA. While doing so, the Designated Court observed as follows:

“… The original documents were sent to the Hon'ble Supreme Court for the purpose of producing the same in Court in connection with the same petition and thereafter the same have been misplaced or lost….”

It further observed as follows:

“… On receiving certain information from Abdul Wahab and Yusuf Laplap Mr Brahmbhatt lodged the FIR against seven accused persons and it was sent for the approval of DCP and on getting the approval under Section 20-A(1), the offence was registered under the TADA Act. Thereafter on perusal of the deposition, it becomes clear that there was total compliance with Section 20-A(1) of the TADA Act before lodging the FIR and on getting the approval from DCP the offence was registered.”

20. Having given our anxious consideration to the facts of the present case and the evidence on record, we are of the opinion that the case of the prosecution that the Deputy Commissioner granted approval under Section 20-A(1) of TADA before registration of the case is fit to be rejected. It is interesting to note that the Deputy Commissioner A.R Suroliya has categorically stated in his evidence that he had gone to the Supreme Court with original records, which included the first information report, on which he had granted approval and handed over the same to the counsel. Thereafter, according to him, the said original first information report got lost or misplaced. It has been brought to our notice that accused Yusuf Laplap had not come to this Court for grant of bail and, therefore, the Deputy Commissioner had no occasion to come with the original record in connection with that case. True it is that some of the accused persons in the case had approached this Court for various reliefs, but in the face of the evidence of the Deputy Commissioner A.R Suroliya that he came along with the record in connection with the case of the accused Yusuf Laplap is fit to be rejected. There are various other reasons also to reject this part of the prosecution story.

21. As stated earlier, the charge-sheet in the case has been filed in five stages. Further, report under Section 157 of the Code has been filed and all these acts had taken place before the alleged loss of the document in the Supreme Court and, therefore, should have formed part of the charge-sheet and the report given under Section 157 of the Code. It has also come on record that later on, the Assistant Commissioner of Police, Crime Branch had sought for approval of the Deputy Commissioner which he granted on 11-8-1994. The communication of the Assistant Commissioner of Police (Ext. 1173) does not refer to any approval granted by the Deputy Commissioner earlier and, not only that, the Deputy Commissioner while giving approval on 11-8-1994 has nowhere whispered that earlier he had already granted the approval. No explanation is forthcoming from the side of the prosecution that when Deputy Commissioner A.R Suroliya had already granted approval on 9-6-1994, what was the occasion to write to him for grant of another approval and the Deputy Commissioner granting the same. To prove prior approval, the prosecution has produced the xerox copy. According to the evidence of Deputy Commissioner A.R Suroliya, he had got it prepared from the copy kept in his office. We wonder as to how and why when a copy of the approval was kept in the office of the Deputy Commissioner itself, xerox copy was produced. It is relevant here to state that this witness, in his cross-examination, has admitted that he does not remember whether “there is any such paper in my office or not for grant of approval for which” he had deposed.

22. In the face of what we have observed above the case of the prosecution that prior approval was granted on 9-6-1994 is fit to be rejected. It seems that the prosecution has come out with a story of grant of prior approval under Section 20-A(1) of TADA in view of the decision of this Court in Mohd. Yunus v. State of Gujarat (1997) 8 SCC 459. There the prosecution has propounded the theory of oral permission which was rejected. In that case also the prosecution has pressed into service the permission granted on 11-8-1994 by the same Deputy Commissioner i.e A.R Suroliya and earlier oral permission. While rejecting the same this Court has observed as follows:

“4. It is, however, contended by the prosecution that on the very date when investigation had been made in this case, the Commissioner of Police, Ahmedabad was present and he had given oral permission under Section 20-A(1) of TADA. We may indicate here that considering the serious consequences in a criminal case initiated under the provisions of TADA, oral permission cannot be accepted. In our view, Section 20-A(1) must be construed by indicating that prior approval of the statutory authority referred to in the said sub-section must be in writing so that there is transparency in the action of the statutory authority and there is no occasion for any subterfuge subsequently by introducing oral permission.”

23. From the analysis of the evidence on record, we have no manner of doubt that the Deputy Commissioner A.R Suroliya did not grant prior approval before registration of the case.

24. As stated earlier, the prosecution has relied on another approval dated 11-8-1994 granted by the Deputy Commissioner. In order to prove this, reference is made to the letter of the Assistant Commissioner addressed to the Deputy Commissioner of Police (Ext. 1173). In the said letter, the Assistant Commissioner of Police has observed that the Home Department of the Government has given approval to apply sections of TADA and the approval of the Deputy Commissioner is necessary in this regard. The Deputy Commissioner of Police on the same day granted approval. However, Deputy Commissioner A.R Suroliya, in his evidence, has nowhere stated about the approval granted on 11-8-1994 though he had deposed about the approval granted on 9-6-1994. In the face of it, the case of the prosecution that Deputy Commissioner A.R Suroliya gave another approval on 11-8-1994 is fit to be rejected.

25. Another approval said to have been granted by the Additional Chief Secretary, Home Department for “using TADA sections” (Ext. 439) has also been proved by the prosecution to establish compliance with Section 20-A(1) of TADA. The accused has not joined issue on this count and in view of the evidence on record, we have no hesitation in accepting the case of the prosecution that the Additional Chief Secretary, Home Department, on 15-6-1994 had given approval. However, its consequences on the conviction of the accused shall be discussed later on.

26. Having found that the Deputy Commissioner has not granted the prior approval, as required under Section 20-A(1) of TADA, we proceed to consider the consequence thereof. For that, we deem it expedient to reproduce Section 20-A of TADA which reads as under:

“20-A. Cognizance of offence.—(1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.

(2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector General of Police, or as the case may be, the Commissioner of Police.”

27. It is worth mentioning here that TADA, as originally enacted, did not contain this provision and it has been inserted by Section 9 of the Terrorist and Disruptive Activities (Prevention) Amendment Act, 1993 (43 of 1993). From a plain reading of the aforesaid provision it is evident that no information about the commission of an offence shall be recorded by the police without the prior approval of the District Superintendent of Police. The legislature, by using the negative word in Section 20-A(1) of TADA, had made its intention clear. The scheme of TADA is different than that of ordinary criminal statutes and, therefore, its provisions have to be strictly construed. Negative words can rarely be held directory. The plain, ordinary grammatical meaning affords the best guide to ascertain the intention of the legislature. Other methods to understand the meaning of the statute is resorted to if the language is ambiguous or leads to absurd result. No such situation exists here. In the face of it, the requirement of prior approval by the District Superintendent of Police, on principle, cannot be said to be directory in nature.

28. There are authorities which support the view we have taken. Reference in this connection can be made to a three-Judge Bench decision of this Court in Anirudhsinhji Karansinhji Jadeja v. State of Gujarat (1995) 5 SCC 302. As in the present case, in the said case also the permission granted by the Additional Chief Secretary was considered. The effect of absence of prior approval by the District Superintendent of Police and the grant of approval by the Additional Chief Secretary were not found to be in conformity with the scheme of TADA. Para 11 of the judgment which is relevant for the purpose reads as follows:

“11. The case against the appellants originally was registered on 19-3-1995 under the Arms Act. The DSP did not give any prior approval on his own to record any information about the commission of an offence under TADA. On the contrary, he made a report to the Additional Chief Secretary and asked for permission to proceed under TADA. Why? Was it because he was reluctant to exercise jurisdiction vested in him by the provision of Section 20-A(1)? This is a case of power conferred upon one authority being really exercised by another. If a statutory authority has been vested with jurisdiction, he has to exercise it according to its own discretion. If the discretion is exercised under the direction or in compliance with some higher authority's instruction, then it will be a case of failure to exercise discretion altogether. In other words, the discretion vested in the DSP in this case by Section 20-A(1) was not exercised by the DSP at all.”

29. The effect of non-compliance with Section 20-A(1) of TADA also came up for consideration before this Court in Mukhtiar Ahmed Ansari v. State (NCT of Delhi) (2005) 5 SCC 258 and while holding that absence of prior approval would vitiate the conviction, the Court observed as under:

“23. We are unable to uphold the argument. In this case, the Deputy Commissioner of Police himself had been examined as prosecution witness (PW 4). In his deposition, he had not stated that he had given any such direction to PW 11 Ram Mehar Singh to register case against the accused under TADA. On the contrary, he had expressly stated that he had granted sanction (which was in writing) which is at Ext. P-4/1. As already adverted earlier, it was under the Arms Act and not under TADA.

24. In our opinion, therefore, from the facts of the case, it cannot be held that prior approval as required by Section 20-A(1) has been accorded by the competent authority under TADA. All proceedings were, therefore, vitiated. The contention of the appellant-accused must be upheld and the conviction of the appellant-accused under TADA must be set aside.”

30. In the present case, we have found that no prior approval was granted by the Deputy Commissioner of Police and in the face of the judgments of this Court in Anirudhsinhji Karansinhji Jadeja (1995) 5 SCC 302 and Mukhtiar Ahmed Ansari (2005) 5 SCC 258, the conviction of the accused cannot be upheld. It is worth mentioning that this Court had taken the same view in Mohd. Yunus (1997) 8 SCC 459 and on fact, having found that no permission was granted, the charge was held to have been vitiated. It is worth mentioning here that in Mohd. Yunus (1997) 8 SCC 459 this Court observed that no oral permission is permissible but in Kalpnath Rai v. State (1997) 8 SCC 732, this Court held that District Superintendent of Police, in a given contingency, can grant oral approval and that would satisfy the requirement of Section 20-A(1) of TADA.

31. The conflict between the decisions of this Court in Mohd. Yunus (1997) 8 SCC 459 and Kalpnath Rai (1997) 8 SCC 732 was considered by a three-Judge Bench in State of A.P v. A. Sathyanarayana (2001) 10 SCC 597, and this Court held that oral approval is permissible and while overruling the decision in Mohd. Yunus (1997) 8 SCC 459 upheld the ratio laid down in Kalpnath Rai (1997) 8 SCC 732 that the prior approval may be either in writing or oral also. But, at the same time, the decision in Mohd. Yunus (1997) 8 SCC 459 that prior approval is sine qua non for prosecution, has not been watered down and, in fact, reiterated. This would be evident from para 8 of the judgment which reads as follows: (A. Sathyanarayana case (2001) 10 SCC 597)

“8. Having applied our mind to the aforesaid two judgments of this Court, we are in approval of the latter judgment and we hold that it is not the requirement under Section 20-A(1) to have the prior approval only in writing. Prior approval is a condition precedent for registering a case, but it may be either in writing or oral also, as has been observed by this Court in Kalpnath Rai case (1997) 8 SCC 732 and, therefore, in the case in hand, the learned Designated Judge was wholly in error in refusing to register the case under Sections 4 and 5 of TADA. We, therefore, set aside the impugned order of the learned Designated Judge and direct that the matter should be proceeded with in accordance with law.”

(emphasis supplied)

32. Another question which needs our attention is the effect of approval dated 15-6-1994 given by the Additional Chief Secretary, Home Department of the State. Section 20-A of TADA authorises the District Superintendent of Police to grant approval for recording the offence and Additional Chief Secretary of the Home Department or for that matter, State Government does not figure in that. The legislature has put trust on the District Superintendent of Police and therefore it is for him to uphold that trust and nobody else. Hence approval by the Additional Chief Secretary is inconsequential and it will not save the prosecution on this count, if found vulnerable otherwise. We may however observe that in order to prevent the abuse of TADA, the State Government may put other conditions and prescribe approval by the Government or higher officer in the hierarchy but the same cannot substitute the requirement of approval by the District Superintendent of Police. Not only this, the District Superintendent of Police is obliged to grant approval in his own wisdom and outside dictate would vitiate his decision. This view finds support from the decision of this Court in Anirudhsinhji Karansinhji Jadeja (1995) 5 SCC 302.

33. Now we proceed to consider the submission advanced by the State that non-compliance with Section 20-A(1) i.e absence of approval of the District Superintendent of Police, is a curable defect under Section 465 of the Code. We do not have the slightest hesitation in holding that Section 465 of the Code shall be attracted in the trial of an offence by the Designated Court under TADA. This would be evident from Section 14(3) of TADA which reads as follows:

“14. Procedure and powers of Designated Courts.—(1)-(2) * * *

(3) Subject to the other provisions of this Act, a Designated Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session.”

34. From a plain reading of the aforesaid provision it is evident that for the purpose of trial Designated Court is a Court of Session. It has all the powers of a Court of Session and while trying the case under TADA, the Designated Court has to follow the procedure prescribed in the Code for the trial before a Court of Session. Section 465 of the Code, which falls in Chapter 35, covers cases triable by a Court of Session also. Hence, the prosecution can take shelter behind Section 465 of the Code. But Section 465 of the Code shall not be a panacea for all error, omission or irregularity. Omission to grant prior approval for registration of the case under TADA by the Superintendent of Police is not the kind of omission which is covered under Section 465 of the Code. It is a defect which goes to the root of the matter and it is not one of the curable defects.

35. The submission that absence of sanction under Section 20-A(2) by the Commissioner of Police has been held to be a curable defect and for parity of reasons the absence of approval under Section 20-A(1) would be curable is also without substance and reliance on the decision of Lal Singh v. State of Gujarat (1998) 5 SCC 529, in this connection, is absolutely misconceived. An Act which is harsh, containing stringent provision and prescribing procedure substantially departing from the prevalent ordinary procedural law cannot be construed liberally. For ensuring the rule of law its strict adherence has to be ensured. In Lal Singh (1998) 5 SCC 529 relied on by the State, Section 20-A(1) of TADA was not under scanner. Further, this Court in the said judgment nowhere held that absence of sanction under Section 20-A(2) is a curable defect. In Lal Singh (1998) 5 SCC 529 the question of sanction was not raised before the Designated Court and sought to be raised before this Court for the first time which was not allowed. This would be evident from the following paragraph of the judgment:

“4. Sub-section (2) makes it clear that when the objection could and should have been raised at an earlier stage in the proceeding and has not been raised, mere error or irregularity in any sanction of prosecution becomes ignorable. We therefore do not permit the appellants to raise the plea of defect in sanction.”

(emphasis supplied)

36. The decision of this Court in Ahmad Umar Saeed Sheikh v. State of U.P (1996) 11 SCC 61, relied on by the State, instead of supporting its contention clearly goes against it. As observed earlier, the omission to grant approval does not come within the purview of Section 465 of the Code and, hence, the rigors of Section 465(2) shall be wholly inapplicable. Otherwise also, the accused have raised this point at the earliest. Grant or absence of approval by the District Superintendent of Police is a mixed question of law and fact. The very existence of the approval under Section 20-A(1) of TADA has been questioned by the accused during the course of trial, which is evident from the trend of cross-examination. Not only this, it was raised before the Designated Court during argument and has been rejected. Thus, it cannot be said that it was not raised at the earliest.

37. The plea of the State is that the Commissioner of Police having granted the sanction under Section 20-A(2) of TADA, the conviction of the accused cannot be held to be bad only on the ground of absence of approval under Section 20-A(1) by the Deputy Commissioner. As observed earlier, the provisions of TADA are stringent and consequences are serious and in order to prevent persecution, the legislature in its wisdom had given various safeguards at different stages. It has mandated that no information about the commission of an offence under TADA shall be recorded by the police without the prior approval of the District Superintendent of Police. Not only this, further safeguard has been provided and restriction has been put on the court not to take cognizance of any offence without the previous sanction of the Inspector General of Police or as the case may be, the Commissioner of Police. Both operate in different and distinct stages and, therefore, for successful prosecution both the requirements have to be complied with. We have not come across any principle nor are we inclined to lay down that in a case in which different safeguards have been provided at different stages, the adherence to the last safeguard would only be relevant and breach of other safeguards shall have no bearing on the trial. Therefore, we reject the contention of the State that the accused cannot assail their conviction on the ground of absence of approval under Section 20-A(1) of TADA by the Deputy Commissioner, when the Commissioner of Police had granted sanction under Section 20-A(2) of TADA.

38. As regards submission of the State that the Designated Court having taken cognizance and decided to try the case by itself in exercise of the power under Section 18 of TADA, the prior defects, if any, are rendered irrelevant and cannot be raised, has only been noted to be rejected. Section 18 of TADA confers jurisdiction on the Designated Court to transfer such cases for the trial of such offences in which it has no jurisdiction to try and in such cases, the court to which the case is transferred, may proceed with the trial of the offence as if it had taken cognizance of the offence. The power of the Designated Court to transfer the case to be tried by a court of competent jurisdiction would not mean that in case the Designated Court has decided to proceed with the trial, any defect in trial, cannot be agitated at later stage. Many ingredients which are required to be established to confer jurisdiction on a Designated Court are required to be proved during trial. At the stage of Section 18 the Designated Court has to decide as to whether to try the case itself or transfer the case for trial to another court of competent jurisdiction. For that, the materials collected during the course of investigation have only to be seen. The investigating agency, in the present case, has come out with a case that prior approval was given for registration of the case and the allegations made do constitute an offence under TADA. In the face of it, the Designated Court had no option than to proceed with the trial. However, the decision by the Designated Court to proceed with the trial shall not prevent the accused to contend in future that they cannot be validly prosecuted under TADA. We hasten to add that even in a case which is not fit to be tried by the Designated Court but it decides to do the same instead of referring the case to be tried by a court of competent jurisdiction, it will not prevent the accused to challenge the trial or conviction later on.

39. The submission of the State that the Designated Court having been empowered to take cognizance under Section 14 of TADA irrespective of absence of compliance with Section 20-A(1) of TADA, its non-compliance would not be fatal to the prosecution, does not commend us. Section 14 of TADA confers jurisdiction on a Designated Court to take cognizance of any offence when the accused being committed to it for trial upon receiving a complaint of facts which constitute such offence or upon a police report of such facts. The offence under TADA is to be tried by a Designated Court. The Designated Court has all the powers of the Court of Session and it has to try the offence as if it is a Court of Session. The Code provides for commitment of the case for trial by the Court of Session. Section 14(1) of TADA provides that the Designated Court may take cognizance on receiving a complaint of facts or upon a police report. Had this provision not been there, the cases under TADA would have been tried by the Designated Court only after commitment. In any view of the matter, the accused during the trial under TADA can very well contend that their trial is vitiated on one or the other ground notwithstanding the fact that the Designated Court had taken cognizance. Taking cognizance by the Designated Court shall not make all other provisions inconsequential.

40. Lastly, it has been submitted that absence of approval under Section 20-A(1) of TADA would not vitiate the conviction of the accused under other penal provisions. As stated earlier, the accused persons besides being held guilty under Sections 3 and 5 of TADA, have also been found guilty under Sections 7 and 25(1-A) of the Arms Act and Sections 4, 5 and 6 of the Explosive Substances Act. According to the State, the conviction under the Arms Act and the Explosive Substances Act, therefore, cannot be held to be illegal. It is relevant here to state that the Designated Court, besides trying the case under TADA, can also try any other offence with which the accused may be charged at the same trial if the offence is connected with the offence under TADA. When the Designated Court had the power to try offences under TADA as well as other offences, it is implicit that it has the power to convict also and that conviction is permissible to be ordered under TADA or other penal laws or both. In our opinion it is not necessary for the Designated Court to first order conviction under TADA and only thereafter under other penal law. In view of the five-Judge Constitution Bench judgment of this Court in Prakash Kumar v. State of Gujarat (2005) 2 SCC 409, this point does not need further elaboration. In the said case this Court has observed that:

“37. … the Designated Court is empowered to convict the accused for the offence under any other law, notwithstanding the fact that no offence under TADA is made out.”

This would be evident from para 37 of the judgment which reads as follows: (Prakash Kumar case (2005) 2 SCC 409)

“37. The legislative intendment underlying Sections 12(1) and (2) is clearly discernible, to empower the Designated Court to try and convict the accused for offences committed under any other law along with offences committed under the Act, if the offence is connected with such other offence. The language ‘if the offence is connected with such other offence’ employed in Section 12(1) of the Act has great significance. The necessary corollary is that once the other offence is connected with the offence under TADA and if the accused is charged under the Code and tried together in the same trial, the Designated Court is empowered to convict the accused for the offence under any other law, notwithstanding the fact that no offence under TADA is made out. This could be the only intendment of the legislature. To hold otherwise, would amount to rewrite or recast legislation and read something into it which is not there.”

41. We have held the conviction of the accused to have been vitiated on account of non-compliance with Section 20-A(1) of TADA and thus, it may be permissible in law to maintain the conviction under the Arms Act and the Explosive Substances Act but that shall only be possible when there are legally admissible evidence to establish those charges. The Designated Court has only relied on the confessions recorded under TADA to convict the accused for offences under the Arms Act and the Explosive Substances Act. In view of our finding that their conviction is vitiated on account of non-compliance of the mandatory requirement of prior approval under Section 20-A(1) of TADA, the confessions recorded cannot be looked into to establish the guilt under the aforesaid Acts. Hence, the conviction of the accused under Sections 7 and 25(1-A) of the Arms Act and Sections 4, 5 and 6 of the Explosive Substances Act cannot also be allowed to stand.

42. As we have held the conviction and sentence of the accused to be illegal and unsustainable, the appeals filed by the State against acquittal and inadequacy of sentence have necessarily to be dismissed.

43. We appreciate the anxiety of the police officers entrusted with the task of preventing terrorism and the difficulty faced by them. Terrorism is a crime far serious in nature, more graver in impact and highly dangerous in consequence. It can put the nation in shock, create fear and panic and disrupt communal peace and harmony. This task becomes more difficult when it is done by an organised group with outside support. Had the investigating agency not succeeded in seizing the arms and explosives, the destruction would have been enormous. However, while resorting to TADA, the safeguards provided therein must scrupulously be followed. In the country of Mahatma, “means are more important than the end”. Invocation of TADA without following the safeguards resulting into acquittal gives an opportunity to many and also to the enemies of the country to propagate that it has been misused and abused. The District Superintendent of Police and Inspector General of Police and all others entrusted with the task of operating the law must not do anything which allows its misuse and abuse and ensure that no innocent person has the feeling of sufferance only because “My name is Khan, but I am not a terrorist”.

44. The facts of the case might induce mournful reflection how an attempt by the investigating agency charged with the duty of preventing terrorism and securing conviction has been frustrated by what is popularly called a technical error. We emphasise and deem it necessary to repeat that the gravity of the evil to the community from terrorism can never furnish an adequate reason for invading the personal liberty, except in accordance with the procedure established by the Constitution and the laws.

45. We have been told that many of the accused, because of poverty or for the reason that they had already undergone the sentence, have not preferred appeals before this Court. Further, this Court had not gone into the merits of the appeals preferred by few convicts on the ground that they have already served out the sentence and released thereafter. The view which we have taken goes to the root of the matter and vitiates the conviction and, hence, we deem it expedient to grant benefit of this judgment to all those accused who have been held guilty and not preferred appeal and also to those convicts whose appeals have been dismissed by this Court as infructuous on the ground that they had already undergone the sentence awarded.

46. In the result, we allow the appeals preferred by those accused who have been convicted and sentenced by the Designated Court and set aside the judgment and order of their conviction and sentence. However, we dismiss the appeals preferred by the State against the inadequacy of sentence and acquittal of some of the accused persons.

47. Schedule I

List of persons named in Crime No. 1-CR No. 11 of 1994 dated 9-6-1994

Sl. No. Names of the accused persons Accused Nos. 1. Yusufkhan Khudadatkhan Pathan alias Laplap Accused 1 2. Abdul Latif Abdul Vahab Shaikh Accused 2 3. Rasulkhan alias Yaz Accused 3 4. A.H.C Sirajmiya Akbarmiya alias Siraj Dadhi Accused 4 5. Imtiyaz Accused 5 6. Gulal Accused 6 7. Sattar Battery alias Sattar Chacha Accused 7

48. Schedule II

List of persons named in the first charge-sheet dated 16-12-1994

Sl. No. Names of the accused persons Accused Nos. 1. Yusufkhan alias Yusuf Laplap Khudadatkhan Pathan Accused 1 2. Shirajmiya Akbarmiya Thakore Accused 2 3. Abdulkhurdush Abdulgani Shaikh Accused 3 4. Mohmad Farukh alias Farukbawa Allarakha Shaikh Accused 4 5. Sajidali alias Benimohmadali Saiyed Accused 5 6. Anwarkhan Mohmadkhan Pathan Accused 6 7. Mohmad Jalaluddin alias Jalababa Tamizuddin Saiyed Accused 7 8. Gulamkadar Gulamhusain Shaikh Accused 8 9. Mohmad Ismail Abdul Vahab Shaikh Accused 9 10. Haiderkhan Lalkhan Pathan Accused 10 11. Adambhai Yusufbhai Mandli (Shaikh) Accused 11 12. Mohmad Soyeb alias Soyeb Baba Abdul Gani Shaikh Accused 12 13. Iqbal alias Bapu Saiyed Husain Saiyed Accused 13 14. Mohmad Hanif alias Anudin Husain Miya Shaikh Accused 14

49. Schedule III

List of persons named in the second charge-sheet dated 23-5-1995

Sl. No. Names of the accused persons Accused Nos. 1. Gajanfarkhan alias Gajukhan Accused 15 2. Asrafkhan alias Babu Accused 16

50. Schedule IV

List of persons named in the third charge-sheet dated 17-4-1996

Sl. No. Names of the accused persons Accused Nos. 1. Munavar Ullakhan alias Imtiyaz Ullakhan alias Pappu Accused 17 2. Fanes Aehmohmad Ansari Accused 18 3. Afzalhusain Accused 19 4. Samimulla alias Sammu Accused 20 5. Barikkhan alias Abdulsalim Accused 21 6. Babukhan alias Lala Accused 22 7. Maksud Ahmed Fatehahmed Shaikh Accused 23 8. Mohmedsafi Abdul Rahman Saikh Accused 24 9. Hafizudin Fajiudin Kaji Accused 25 10. Sohrabduin alias Salim Accused 26 11. Abdulgafar alias Gafar Accused 27 12. Abdulkayam Nizamudin Shaikh Accused 28 13. Mohmed Rafik alias Haji Rafikbhai Kapadia Accused 29 14. Usmangani Musabhai Vohra Accused 30 15. Abdulvahab Abdulmajid Baloch Accused 31 16. Abdul Sattar alias Sattar Battery Accused 32 17. Abdulrauf alias Rauf Accused 33 18. Imtiyazahmed Nurharanmiya Kadri Accused 34 19. Abdullatif Abdulvahab Shaikh Accused 35 20. Sabbirhusain Husainmiya Shaikh Accused 36 21. Mustak Ahmed Istiyak Ahmed Pathan Accused 37 22. Ikbal Jabbarkhan Pathan Accused 38 23. Ayub alias Lala Accused 39 24. Kadarbhai Musabhai Mandli Accused 40 25. Musabhai Yusufbhai Madli Accused 41 26. Daubhai Musabhia Shaikh Accused 42 27. Mohmedamin alias Amin Chobeli Accused 43 28. Musrafkhan Gorekhan Pathan Accused 44 29. Mehmood alias Pepa Pelhwan Husenkhan Nilgaramal Accused 45 30. Sahibudin alias Konjibaba Accused 46 31. Husanbhai alias Bhajia Accused 47 32. Ahmedbhai Haji Kasambhai Ajmeri Accused 48 33. Gulam Mohmed alias Gulu Accused 49

51. Schedule V

List of persons named in the fourth charge-sheet dated 20-12-1996

Sl. No. Names of the accused persons Accused Nos. 1. Mahebub Bag alias Mehbub Senior Accused 50 2. Mohmad Rafik alias R.D alias Mustak alias Nazim Accused 51 3. Gulam Mohmad alias Gulal alias Arif Accused 52 4. Imtiyaz alias Fatush Accused 53 5. Parminder Singh alias Kaka Accused 54 6. Aminkhan alias Alamkhan Accused 55 7. Firoz alias Firoz Kankani Accused 56 8. Mohmad Harun alias Munna alias Riyaz alias Chhote Rahim Accused 57 9. Mujfarkhan alias Nasir Luhar Accused 58 10. Mohmad Yakil alias Yakil Accused 59 11. Jay Prakash Singh alias Bachhi Sing Accused 60

52. Schedule VI

List of persons named in the fifth charge-sheet dated 24-5-2000

Sl. No. Names of the accused persons Accused Nos. 1. Jahangir Khan Fazalkhan Pathan Accused 61 2. Mohmad Anwarkhan alias Rushi Pathan Accused 62

53. Schedule VII

List of persons convicted by the Designated Court vide its order dated 31-1-2002

Sl. No. Names of the accused persons Accused Nos. 1. Yusufkhan alias Yusuf Laplap Khudadadkhan Pathan Accused 1 2. Shirajmiya Akbarmiya Thakore Accused 2 3. Sajidali alias Deni Mohammedali Saiyed Accused 5 4. Iqbal alias Bapu Saiyedhussein Saiyed Accused 13 5. Gajnafarkhan alias Gajjukhan Sabdrkhan Pathan Accused 15 6. Asharafkhan alias Babu Munnakhan Pathan Accused 16 7. Shohrabuddin alias Salim Anvaruddin Shaikh Accused 26 8. Abdulsattar alias Sattar Battery Abdulgani Shaikh Accused 32 9. Abdul Raoof alias Raoof Abdul Kadar Shaikh Accused 33 10. Hussainbhai alias Bhajiya Mohammedbhai Patani Accused 47 11. Mujffarkhan alias Nashir Luhar Umardarajkhan Pathan Accused 58

54. Schedule VIII

List of persons acquitted by the Designated Court vide its order dated 31-1-2002

Sl. No. Names of the accused persons Accused Nos. 1. Abdul Khurdush Abdul Gani Shaikh Accused 3 2. Mohammed Faruq alias Faruqbava Allarakha Accused 4 3. Anvarkhan Mohammedkhan Pathan Accused 6 4. Mohammed Jalaluddin alias Jalalbaba Tamijuddin Saiyed Accused 7 5. Gulam Kadar Gulam Hussain Shaikh Accused 8 6. Hyderkhan Lalkhan Pathan Accused 10 7. Mohammed Soeb alias Soebbava Abdul Gani Shaikh Accused 12 8. Mohammed Hanif alias Anudi Husseinmiya Shaikh Accused 14 9. Munavarullakhan alias Imtiyazullakhan alias Pappu Mohammed Safiullakhan Accused 17 10. Afzalhussain Ajgarhussein Rangrej Accused 19 11. Shamtullakhan alias Sammu Mohammed Safiulla Pathan Accused 20 12. Bariqkhan alias Abdul Salim Hussein Khan alias Abdul Hussein Shaikh Accused 21 13. Babukhan alias Lala Niyajkhan alias Niyajmohammed Pathan Accused 22 14. Maksud Ahmed Fatehmohammed Shaikh Accused 23 15. Mohammed Safi Abdul Rehman Saikh Accused 24 16. Hafizuddin Fazluddin Kazi Accused 25 17. Abdulgafar alias Gafar Party Mohammed Rafiq Shaikh Accused 27 18. Abdul Kaiyum Nizamuddin Shaikh Accused 28 19. Mohammed Rafiq alias Haji Rafiqbhai Husseinbhai Kapadia Accused 29 20. Usmangani Musabhai Vora Accused 30 21. Abdul Wahab Abdul Majid Baloch Accused 31 22. Imtieaz Ahmed Noorhadanmiya Kadari Accused 34 23. Sabbirhussein Husseinmiya Shaikh Accused 36 24. Mustaq Ahmed Istiyaq Ahmed Pathan Accused 37 25. Aiyub alias Lala Yusufbhai Mandali Accused 39 26. Kadarbhai Musabhai Mandali Accused 40 27. Musabhai Yusufbhai Mandali Accused 41 28. Daoodbhai Musabhai Shaikh Accused 42

29. Mohammed Amin alias Amin Chotely Rahimmiya Accused 43 30. Musharrafkhan Gorekhan Pathan Accused 44 31. Mehmood alias Pepa Pahelvan Hussainkhan Nilgadamal Accused 45 32. Shahbuddin alias Kanijbaba Badruddin Shaikh Accused 46 33. Ahmedbhai Haji Kasambhai Ajmeri Accused 48 34. Gulammohammed alias Gulu Gulam Hyder Momin Accused 49 35. Mehboobbeg alias Mehboob Senior Chhotubeg Mogal Accused 50 36. Mohammed Rafiq alias R.D alias Mustaq alias Nazim Majidkhan Accused 51 37. Gulam Mohammed alias Gulal alias Arif Abdul Kadar Shaikh Accused 52 38. Imtiyaz alias Fetas Ibrahim Ismial Bhathiyara Accused 53 39. Parmindarsing alias Kaka Maliksing Sikh Accused 54 40. Aminkhan alias Alamkhan Mojkhan Pathan Accused 55 41. Mohammed Yaakil alias Aakil Maiyuddin Malek Accused 59