2005 Supreme(SC) 697

2005(3) Supreme 370
Supreme Court of India
(From Designated Court, TADA at New Delhi)
B.N. Agrawal & C.K. Thakker, JJ.
Mukhtiar Ahmed Anshari —Appellant
versus
State (N.C.T. of Delhi) —Respondent
Criminal Appeal No. 325 of 2003
Decided on 21-4-2005
Counsel for the Parties :
For the Appellant : Sushil Kumar, Sr. Advocate, Ramesh N. Keshwani, I.U. Khan, Ramlal Roy, C.G. Sivakumaran, Vinay Arora, Adolf Mathew, Sanjay Jain, Advocates.­
For the Respondent : Vikas Sharma and Mrs. Anil Katiyar, Advocates.
For the Impleading Party : Vikas Singh, Sr. Advocate, Yunus Malik and Ms. Amrita Narayan, Advocates.

Important point
Prior approval of the authority under Section 20A(1) of TADA is mandatory however approval might be either in writing or oral.

Headnote:(i) Terrorist and Disruptive Activities (Prevention) Act, 1987—Sections 5 and 20-A(1)—Appellant accused convicted by Designated Court for being found in possession of arms and ammu­nition in notified area without licence—Appeal—Contention that there was no prior approval obtained and proceedings were vitiated—No information about commission of an offence under TADA to be recorded by police without prior permission of District Superintendent of Police and he alone has to exercise the power—Provision was mandatory and proceedings under the Act would not be maintainable in absence of such approval—Approval however could be either oral or in writing—No evidence in the case if Deputy Commissioner of Police had given any such direction to Investigating Officer to register case under TADA—Prior approval required by Section 20A(1) of the Act could not be said to have been accorded and proceedings were vitiated—Conviction was liable to be set aside.

       Held : The provision begins with a non-obstante clause and declares that notwithstanding anything contained in the Code of Criminal Procedure, no information about commission of an offence under TADA “shall be recorded by the police without the prior permission of District Superintendent of Police”. It is not in dispute that Authority to exercise power under sub-section (1) of Section 20A in Delhi is the Deputy Commissioner of Police. The learned counsel for the appellant submitted that prior approval as required by law had not been obtained and hence the proceedings were vitiated and the appellant could not have been prosecuted. (Para 14)

       In our opinion, the learned counsel for the respondent is right in relying upon a three-Judge Bench decision in State of A.P. vs. A. Sathyanarayana & Others, (2001) 10 SCC 597. In that case, a Sub-Inspector of Police seized certain explosive substances and contacted Superintendent of Police being appropriate authority for getting prior approval as required under Section 20A(1) of TADA before registering a case. The Superintendent of Police instructed the Sub-Inspector of Police to register the case and book the accused under TADA. The case was registered. The Superintendent of Police himself recorded in writing to register a case but the writing reached the Sub-Inspector on the next day. When the charge sheet was filed, the Designated Judge took the view that there was no approval in writing of the Competent Authority and the registration of case under TADA was bad in law. The State approached this Court. The Court considered Mohd Yunus and Kalpanath Rai and held that Section 20A(1) of TADA did not require prior approval in “in writing”. The Court stated that prior approval is no doubt condition precedent for registering a case under TADA but it may either be in writing or oral. (Paras 19 and 20)

       In this case, Deputy Commissioner of Police himself had been examined as prosecution witness (PW4). 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 Ex.P4/1). As already adverted earlier, it was under the Arms Act and not under TADA. In our opinion, therefore, from the facts of the case, it cannot be held that prior approval as required by Section 20A(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. (Paras 26 and 27)

       (ii) Criminal Law—Doctrine of Autrefois acquit—Appellant-accused was arrested while in possession of arms and ammunition in notified area and prosecution for offences under TADA—He was separately prosecuted for offence of kidnapping for ransom being the master mind—Acquittal of that offence by Competent Court—Doctrine of autrefois acquit got attracted and Designated Court was wrong to proceed on the allegations in that case. (Paras 28 to 31)

       (iii) Criminal Law—Investigation by very same police official who had lodged complaint—In absence of independent corroboration, no conviction could be recorded in such case. (Para 36)