Terrorist and Disruptive Activities (Preventive) Act, 1987 – s. 20-A(1) – Compliance of – Three accused persons were stopped and personally searched by the police – Police recovered one foreign made pistol and 2 country made tamancha from them – FIR was registered u/ss. 25(1)(Ba), 27 of the Arms Act and s. 135 of the Bombay Police Act and u/s. 5 of TADA Act and arrangement was made for obtaining the sanction of the District Superintendent of Police u/s. 20(A(1) of the TADA Act – Appellants contended that in terms of s. 20-A(1) of TADA Act, no information about commission of offence could have been recorded under TADA Act without the approval of the District Superintendent of Police and therefore, it vitiates the entire proceeding under TADA Act – Held: Provisions of s.20-A(1) are mandatory – It forbids the recording of information about the commission of offence under TADA Act by the police without prior approval of the District Superintendent of Police – The bar u/s. 20-A(1) of TADA applies to information recorded u/s. 154 Cr.P.C. – This bar will not apply to a rukka or a communication sent by the police official to the District Superintendent of police seeking his sanction – No information can be recorded u/s. 154 Cr.P.C. for commission of an offence under TADA Act without the sanction of the competent authority – Further, it has to be seen that where the information basically discloses an offence under TADA Act and the other offence is more in the nature of an ancillary offence then the information cannot be recorded without complying with the provisions of s.20-A(1) of TADA Act – This will have to be decided in the facts of each case – In the instant case, the only information recorded which constitutes an offence was recovery of the arms – The area where accused were carrying arms was notified area under TADA Act and carrying arms in notified area is itself an offence under TADA Act – There were no other offences of rape, murder etc. in this case – Therefore in the present case, non-compliance of s. 20-A(1) vitiates the proceedings under the TADA Act – Accordingly, appellants discharged in so far as the offence under TADA Act is concerned, however, they can be proceeded against under the provisions of the Arms Act – Arms Act 1959 – ss. 25(1)(Ba), 27 – Bombay Police Act – s.135.
Allowing the appeal, the Court
HELD: 1.The language of the Section 20-A of the Terrorist and Disruptive Activities (Prevention) Act, 1987 is mandatory in nature. It starts with a non-obstante clause. It forbids the recording of information about the commission of offence under TADA Act by the police without prior approval of the District Superintendent of Police. [Para 6] [747-C]
2. The word ‘FIR’ is not used in Section 154 of CrPC, though it is now commonly used with regard to information recorded under Section 154. Therefore, whenever information relating to commission of a cognizable offence is given orally then the officer-in-charge of the police station is bound to record that information in a book to be kept for such offences in such form as the State Government may prescribe in this behalf. What is prohibited under Section 20-A(1) of TADA Act is the recording of information. It can be presumed that the Legislature while introducing Section 20-A(1) in TADA Act was also aware of the provisions of Section 154 of CrPC. Therefore, the clearcut intention was that no information of commission of an offence under TADA Act would be recorded by the police under Section
154 of CrPC without sanction of the competent authority. The reason why Section 20-A(1) was introduced into TADA Act in the year 1993 by amendment was that because the provisions of TADA Act were very stringent, the Legislature felt that a senior official should look into the matter to ensure that an offence under TADA is made out and then grant sanction. [Para 13] [751-C-E]
3. The bar under Section 20-A(1) of TADA Act applies to information recorded under Section 154 of CrPC. This bar will not apply to a rukka or a communication sent by the police official to the District Superintendent of Police seeking his sanction. Otherwise, there could be no communication seeking sanction, which could not have been the purpose of TADA Act. [Para 14] [751-F]
4. Each case is to be decided on its own facts. The police official, not being the District Superintendent of Police, may receive information of commission of an offence and may reach the scene of a crime. He can record the information on the spot and then send a rukka to the police station for recording of FIR. There may be cases of serious offences like murder, rape, offences under Narcotic Drugs and Psychotropic Substances Act, 1985, Protection of Children from Sexual Offences (POCSO) Act, 2012 etc. where any delay in investigation is fatal. In these cases, the police officer is entitled to record the information some of which may indicate an offence under TADA Act, also because non-recording of the information with regard to the main offence may delay the investigation and hamper proper investigation in the matter. In such cases, while recording the information and recording the FIR, for the offences falling under TADA Act, the police officials concerned can approach the District Superintendent of Police for sanction under Section 20A(1) of TADA Act. The investigation in serious cases of murder, rape, smuggling, narcotics, POCSO Act etc. cannot be delayed only because TADA Act is also involved. [Para 15] [751-G-H; 752-A-C]
5. At the same time, where the information basically discloses an offence under TADA Act and the other offence is more in the nature of an ancillary offence then the information cannot be recorded without complying with the provisions of Section 20-A(1) of TADA Act. This will have to be decided in the facts of each case. In the case in hand, the only information recorded which constitutes an offence is the recovery of the arms. The police officials must have known that the area is a notified area under TADA Act and, therefore, carrying such arms in a notified area is itself an offence under TADA Act. It is true that this may be an offence under the Arms Act also but the basic material for constituting an offence both under the Arms Act and TADA Act is identical i.e. recovery of prohibited arms in a notified area under TADA Act. The evidence to convict the accused for crimes under the Arms Act and TADA Act is also the same. There are no other offences of rape, murder etc. in this case. Therefore, as far as the present case is concerned, non-compliance of Section 20-A(1) of TADA Act is fatal and there is no other option but to discharge the appellants in so far as the offence under TADA Act is concerned. This Court makes it clear that they can be proceeded against under the provisions of the Arms Act. [Para 16] [752-D-F]
Rangku Dutta @ Ranjan Kumar Dutta v. State of Assam (2011) 6 SCC 358 : [2011] 8 SCR 639;
Anirudhsinhji Karansinhji Jadeja & Anr. v. State of Gujarat (1995) 5 SCC 302 : [2012] 12 SCR 1033 ; Ashrafkhan & Anr. v. State of Gujarat (2012) 11 SCC
606 : [2012] 12 SCR 1033 ; Hussein Ghadially & Ors. v. State of Gujarat (2014) 8 SCC 425 : [2014] 9 SCR 364 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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