JUDGMENT

HANSARIA, J. :- The two appellants are in jail being accused of having committed offences, inter alia under Section 3 and 5 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (for short the TADA). Their prayer is to release them on bail, which has been denied by the Designated Court. In support of this plea, a large number of points were raised before us in course of arguments. It is not necessary to go into all these questions as, according to us, the appeal deserves to be allowed on the sole ground of wrong invocation of TADA in the case of the appellants.

2. To bring home the above, we may note the prosecution case in short, which is that :

"........on March 15, 1995 one Jayantilal Mohanlal Vadodaria who is a son of elder brother Mohanlal Kalabhai of the complainant, was murdered by some assailants near Ashapura Dam at the distance of 3 K. M. from Gondal town. So on receiving this information, the complainant went to the scene of offence where a dead body of his nephew Jayantilal was lying. One Vespa-scooter of the deceased was also lying there. It was found that there were injury makes by fire on the body of the deceased. There was a cartridge of red colour which was used, was lying near the body. It was further stated in the complaint that deceased Jayantilal was traveling on his scooter for going to his vadi from his house at 4.00 p. M. as usual and he was passing through the way of Ashapura Dam. His vadi is situated on the road of Kotda Sangani Village."

3. It has been alleged that deceased Jayantilal, aged 32 years, was a resident of Gondal and was a leading member of the Patel community. Previously, he was a member of the Gondal Nagar Palika and also Director of Gondal Nagrik Sahakari Bank. The post-morten revealed that the deceased had received gun-shot injuries and also injuries caused by knives. The murderers had come in a white Ambassador Car No. GIG-375 and had fired twice at the deceased and had caused injuries by sharp weapons. After killing the deceased, the murderers absonconded. The car was ultimately recovered from a place within Jamkandorna Police Station, and all the four accused were arrested there on 16-3-1995 at 21. 15 hours.

4. The further allegation is that the four persons, after committing the murder, went to Anirudhsinh Karansinh Jadeja, Sarpanch of village Mota Umvada and a resident of that village and sought refuge. Anirusdsinh was in his field at that time (5.30 P. M.) and Digubha Jadeja was present there. Anirudhsinh declined to provide shelter but agreed to keep the weapons. One countary-made gun with cartridges and two knives were packed in a bundle and Vishubha and Digubha had concealed the bundle by digging a pit on the ground of a small room in the field belonging to Anirudhsinh. After hiding the weapons. Vishubha along with other alleged murderers left the field and went away by the white Ambassador car in which they had come. Police arrested and started criminal proceedings not only against the alleged murderers but also against Anirudhsinh Jadeja and Digubha Jadeja, the appellants herein.

5. Anirudhsinh (appellant No. 1) was produced before the Executive Magistrate, Gondal, on 18-3-1995 on the allegation that one country-made gun and cartridges were recovered from his field and a case was registered against him under Section 25 (1) (b) of the Arms Act bearing Crime Registration No. 28/95. The allegation against Digubha, appellant was that he had abetted in secreting the weapon. They were arrested and produced before the Executive Magistrate who granted five days remand. On a prayer made on behalf of the appellants on 23-3-1995, the Executive Magistrate directed the police authorities not to ill-treat the appellants. On 24th March, 1995 the Executive Magistrate sent all the accused persons, including the appellants, to hospital where they were kept till 27th March, 1995. Thereafter, an order was passed on 27th March, 1995 by which all the accused were remanded to jud