Terrorist and Disruptive Activities (Prevention) Act, 1987: s.20A(2) – Prior sanction under s.20A(2) – Validity of – By impugned order, Designated Court held that there was no prior sanction under s.20-A(2) before taking cognizance of the offence committed by the respondents – Held: Perusal of the subject sanction order showed that it adverted only to the FIR and proposal received from DSP – The noting in the sanction order was indicative of the fact that it was not a sanction to prosecute the accused but at best giving permission to apply the provisions of TADA – Such a sanction cannot be 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 offence under TADA – In the instant case, sanction order in respect of respondent no.3 showed that there was nothing to indicate as to whether the sanctioning authority was conscious of the materials gathered during investigation qua respondent No.3 which merely suggested possession and recovery of two walky-talkies from him – The sanctioning authority was under a bounden duty to accord sanction, specific to offences, from amongst the different offences under sub-sections (1) to (6) of s.3 of TADA – s.4 refers to disruptive activities whereas s.5 refers to possession of unauthorized classified arms and ammunition – A walky-talky is certainly not one of those classified arms and ammunition – The purported sanction suffered from 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 than TADA) – Whether the Designated Court could convict the accused persons for offences punishable under other enactments (other than TADA) – Held: 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 offences are connected with offences under TADA – For, implicit power has been bestowed upon the Designated Court to convict the accused for offences under other enactments if there is legally admissible evidence to establish those charges – However, in the instant case, prosecution essentially relied upon the confessional statement of the accused recorded under the provisions of TADA – That will be of no avail and certainly not admissible against the accused in the trial for offences under other enactments, especially when the Designated Court could not have taken cognizance of the offence under TADA for lack of a valid sanction – There was no legally admissible evidence to establish the charges against the respondents regarding offences under other enactments (other than TADA) – The conclusion reached by the Designated Court, that the respondents were not guilty of the offences for which they were charged and tried, is not interfered with.
Dismissing the appeals, the Court
HELD: 1. The sanction order (Exh.84) issued under Section 20-A(2) of TADA by DGP (PW-14) shows that the author of the document DGP (PW-14), adverted only to the FIR and the proposal received from DSP, Jamnagar (PW-15). The understanding of PW-14 was that the proposal received from DSP, Jamnagar (PW-15) was for granting approval to apply provisions of TADA and the said proposal was accepted. The respondents rightly relied on the dictum in Gadhvi’s case, where a similar purported sanction under Section 20-A(2) of TADA issued by the very same officer DGP (PW-14), in respect of some other TADA case, came up for consideration. The wording of sanction order considered therein was similar to the one under consideration. [Para 13][764-F-H]
Rambhai 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 very same 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 before issuing the sanction, the FIR and the letter or proposal sent by the DSP, Jamnagar. In the evidence, although it was asserted that the DSP (PW-15) was called for discussion and who, in turn, apprised him of all the relevant details of the investigation, but that fact was not reflected in any contemporaneous record. No such record was produced by the prosecution. What is significant is the wording of the subject sanction (Exh.84). When juxtaposed with the sanction in the reported case (Exh.63 reproduced in paragraph 9 of the said judgment), it is obvious that even in the instant case, what was noted in Exh.84 was the permission to apply Sections 3, 4 and 5 of TADA. In paragraphs 14 and 15 of the reported decision, this Court opined that such noting was itself indicative of the fact that it was not a sanction to prosecute the accused but at best giving permission to apply the provisions of TADA. Such a sanction cannot be considered as a valid sanction, much less issued after due application of mind. The same logic applies proprio vigore to the fact situation of the instant case. [Para 14][767-C-F]
2.1 The sanction dated 1st April, 2005 (Exh.57), concerning accused No.3/respondent No.3, issued under the signature of ‘AKB’, IGP (who is not examined) read with the evidence of PW10 show that it was issued after due consideration of all the relevant material, including police papers. The evidence of PW10 indicates that a Yadi was received on 27th March, 2005 in the Office of Director General of Police and Chief Police Officer, where the witness was working as ASI. The same is dated 11th March, 2005 (Exh.55), issued under the signature of PW-13. This was followed by a communication sent under the signature of Superintendent of Police, Jamnagar (not examined) dated 15th March, 2005 (Exh.56). The purported sanction dated 1st 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]
2.2 A bare perusal of Exh.57 showed that there is nothing to indicate as to whether the sanctioning authority was conscious of the materials gathered during investigation qua the concerned accused (respondent No.3), which merely suggested possession and recovery of two walky-talkies from him. If that is the only incriminatory material against accused No.3/respondent No.3, the sanctioning authority ought to have pondered over the crucial aspects including as to how such possession would entail in commission of any offence muchless punishable under Sections
4 or 5 of TADA. Further, section 3 of TADA posits different offences, namely, terrorist acts [Section 3(2)], being party to conspiracy or abetment or knowingly facilitating the commission of terrorist acts [Section 3(3)], harbouring or concealing any terrorist [Section 3(4)], being member of a terrorist gang or terrorist organization, which is involved in terrorist acts [Section 3(5)], and to hold any property derived or obtained from commission of any terrorist act [Section 3(6)]. The sanctioning authority was under a bounden duty to accord sanction, specific to offences, from amongst the different offences under subsections (1) to (6) of Section 3 of TADA. Section 4 refers to disruptive activities whereas Section 5 refers to possession of unauthorized classified arms and ammunition. A walky-talky is certainly not one of those classified arms and ammunition. The purported sanction vide Exh.57 also suffers from the vice of nonapplication of mind, on this count alone. [Para 19][775-C-G]
3. It is now well settled 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 offences are connected with offences under TADA. For, implicit power has been bestowed upon the Designated Court to convict the accused for offences under other enactments if there is legally admissible evidence to establish those charges. Even in the instant case, it is noticed that the prosecution has essentially relied upon the confessional statement of the accused recorded under the provisions of TADA. That will be of no avail and certainly not admissible against the accused in the trial for offences under other enactments, especially when the Designated Court could not have taken cognizance of the offence under TADA for lack of a valid sanction. Additionally, in the instant case, the evidence produced by the prosecution regarding search and seizure is replete with fatal deficiencies. There was no legally admissible evidence to establish the charges against the respondents regarding offences under other enactments (other than TADA). The conclusion reached by the Designated Court, that the respondents were not guilty of the offences for which they were charged and tried, needs no interference. [Paras 23, 24, 25] [777-B-C; 778-D-F]
Prakash Kumar alias Prakash Bhutto v. State of Gujarat (2005) 2 SCC 409 : [2005] 1 SCR 408 – followed Ashrafkhan alias Babu Munnekhan Pathan & Anr. v. State of Gujarat (2012) 11 SCC 606 : [2012] 12 SCR1033 – relied on
Ahmad Umar Saeed Sheikh v. State of U.P. (1996) 11 SCC
61 : [1996] 9 Suppl. SCR 53 ; Harpal Singh v. State of Punjab, (2007) 13 SCC 387 : [2007] 12 SCR 830 ; State of A.P. v. A. Sathyanarayana and Ors. (2001) 10 SCC 597 ; State of Bihar & Anr. v. P.P. Sharma & Anr. (1992) Supp. (1) SCC 222 : [1991] 2 SCR 1 ; Mohd. Iqbal M. Shaikh & Ors. v. State of Maharashtra (1998) 4 SCC 494 : [1998] 2 SCR
734 ; State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC
600 : [2005] 2 Suppl. SCR 79 ; Seeni Nainar Mohammed v. State (2017) 13 SCC 685 : [2017] 3 SCR 312 – referred to
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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