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2009 Supreme(SC) 459

2009(4) Supreme 452
SUPREME COURT OF INDIA
Altamas Kabir and Mukundakam Sharma, JJ.
Izharul Haq Abdul Hamid Shaikh & Anr. — Appellants
versus
State of Gujarat — Respondent
Criminal Appeal No. 811 of 2008 with Crl. A. No. 813/2008 & Crl. A.D23837/2008
Decided on : 06-03-2009

Advocates appeared:
For the Appellants :Rajeev Sharma, Advocate.
For the Respondent:Ms. Hemantika Wahi, Advocate.

IMPORTANT POINT
In terms of Section 20-A of TADA, notwithstanding anything contained in the Code of Criminal Procedure, no information about the commission of an offence under the Act can be recorded by the police without the prior approval of the District Superintendent of Police.

Headnote:Criminal Procedure Code, 1973 – Section 439 – Terrorists and Disruptive Activities (Prevention) Act, 1987 – Sections 19, 20(8), 20 – A(1) – Arrest of appellants for offences alleged to have been committed under Sections 121, 121A, 122, 123. 120B, 34 IPC, Section 25(1) AB, AA of the Arms Act, Section 9-B of the Explosive Substances Act read with Sections 3, 4, 5 and 6 of TADA – Application for grant of bail –Rejected – Appeals thereagainst – Taking up Appeal preferred by J, first, it transpired from submissions of parties that he was a labourer, who was allegedly under employment of I, the appellant in other two appeals – He was one of a number of labourers who were allegedly involved in the transfer of certain containers from one vehicle to another – Other labourers who were involved in such operation were said to have been granted bail as they had no knowledge of contents of said boxes and were merely shifting the same on instructions – Since other labourers had been granted bail and there being no available material to presume that J had knowledge of contents of the boxes, held he was liable to be granted bail on parity with other labourers – As to prayer for grant of bail made by I, records showed that while First Information Report against him under Porbandar case had been lodged on 8th March, 1994, approval therefor had been given a month later, on 8th April, 1994 – For purpose of grant of bail, having regard to the decision in Mukhtiar Ahmad Ansari’s case in which question of grant of prior approval, as required under Section 20-A(1), had been considered and was held to be a pre-condition for recording the First Information Report, appellant I held liable to be granted bail since undoubtedly, approval had not been obtained under Section 20-A(1) of TADA before First Information Report was recorded – Appeals disposed of. (Paras 24 to 28)
       Facts of the Case :
        1. Appellants herein in the instant case were arrested for offences alleged to have been committed under Sections 121, 121A, 122, 123. 120B, 34 IPC, Section 25(1) AB, AA of the Arms Act, Section 9-B of the Explosive Substances Act read with Sections 3, 4, 5 and 6 of TADA. Applications for grant of bail by appellants were rejected.
        2. Present appeals have been filed against said orders rejecting grant of bail.
       Findings of the Court :
        Taking up Appeal preferred by J, first, it transpired from submissions of parties that he was a labourer, who was allegedly under employment of I, the appellant in other two appeals. He was one of a number of labourers who were allegedly involved in the transfer of certain containers from one vehicle to another. Other labourers who were involved in such operation were said to have been granted bail as they had no knowledge of contents of said boxes and were merely shifting the same on instructions.
        Since other labourers had been granted bail and there being no available material to presume that J had knowledge of contents of the boxes, held he was liable to be granted bail on parity with other labourers. As to prayer for grant of bail made by I, records showed that while First Information Report against him under Porbandar case had been lodged on 8th March, 1994, approval therefor had been given a month later, on 8th April, 1994. For purpose of grant of bail, having regard to the decision in Mukhtiar Ahmad Ansari’s case in which question of grant of prior approval, as required under Section 20-A(1), had been considered and was held to be a pre-condition for recording the First Information Report, appellant I held liable to be granted bail since undoubtedly, approval had not been obtained under Section 20-A(1) of TADA before First Information Report was recorded.
       Result : Appeals disposed of.

JUDGMENT

Altamas Kabir, J.—

1. Delay condoned in Criminal Appeal D.No.23837 of 2008.

These three criminal appeals have been taken up together as the same questions of law relating to the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as ‘TADA’) regarding grant of bail are involved. All these three appeals have been filed under Section 19 of TADA relating to separate incidents which are alleged to have occurred in Porbandar and Valsad in the State of Gujarat.

2. Criminal Appeal No.811 of 2008 has been filed by Izharul Haq Abdul Hamid Shaikh and Amir Gulam Husein Bandukwala against the order passed by the Designated Court, Porbandar, on 15th February, 2008 in Criminal Misc. Application No.164 of 2007 in Special TADA Case No.6 of 2005 in respect of offences alleged to have been committed under Sections 121, 121A, 122, 123. 120B, 34 IPC, Section 25(1) AB, AA of the Arms Act, Section 9-B of the Explosive Substances Act read with Sections 3, 4, 5 and 6 of TADA.

3. The appellant No.1, Izharul Haq Abdul Hamid Shaikh has also filed Criminal Appeal D.No.23837 of 2008 against order dated 9th April, 2008, passed by the Designated TADA Court at Valsad in Criminal Misc. Application No.68 of 2008 in Special TADA Case No.1 of 2005 in respect of charges similar to those made against him in the Porbandar case.

4. Criminal Appeal No.813 of 2008 has been filed by one Jivan Raghu Varli against an order dated 13th September, 2007, in Criminal Misc. Application No.88 of 2007 on charges similar to those made against Izharul Haq Abdul Hamid Shaikh.

5. In all the three appeals, the prayer for bail made on behalf of the appellants under Section 439 Cr.P.C. and Section 20(8) of TADA has been rejected.

6. Mr. Sushil Kumar, learned Senior Advocate, appearing for the appellants in Crl. Appeal No.811 of 2008 and Crl. Appeal D. No.23837 of 2008, submitted that Izharul Haq Abdul Hamid Shaikh has been in custody since his arrest on 29th April, 2005, i.e. for more than 3= years while the minimum sentence provided in the TADA is 5 years and the maximum is life sentence. He urged that if the appellant was ultimately convicted and given minimum sentence, he would have completed such sentence in custody by the time the trial was concluded. Mr. Sushil Kumar submitted that of the other co-accused in the Valsad case, twenty accused had been acquitted and it was observed in the judgment of the learned Designated Judge that the prosecution had not been able to prove its case beyond all reasonable doubt. Mr. Sushil Kumar also submitted that the appeal against acquittal of the said twenty co-accused was dismissed by this Court and another batch of three trials in the same case also ended in acquittal. He contended that the contents of the charge-sheet did not warrant framing of charges by the Special Judge, particularly when no recovery was effected and the only evidence against the appellants was the alleged confession which had not been relied upon in the earlier trial.

7. In the other case (Criminal Appeal No.811 of 2008), the First Information Report was filed on 8th March, 1994, by the police authorities and thereafter confessions of the appellant Nos.1 and 2 were recorded on 27th June, 2005. On being produced before the Magistrate on 29th June, 2005, the appellants retracted their confessional statements on the ground that such confessions had been obtained on the basis of threats and coercion and, in fact, they did not even know as to what was written in the confessional statements. A second petition made by the appellants was heard by the Designated Court at Valsad, but the same was ultimately dismissed.

8. Mr. Sushil Kumar stated that since no recovery had been effected, the only evidence available against the appellants were the confessional statements alleged to have been made by them voluntarily, which have not been relied upon in the earlier trial. Mr. Sushil Kumar submitted that most of the accused persons in these cases

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2009 Supreme(SC) 459

2009(4) Supreme 452SUPREME COURT OF INDIAAltamas Kabir and Mukundakam Sharma, JJ.Izharul Haq Abdul Hamid Shaikh & Anr. — AppellantsversusState of Gujarat — RespondentCriminal Appeal No. 811 of 2008 with Crl. A. No. 813/2008 & Crl. A.D23837/2008Decided on : 06-03-2009

IMPORTANT POINT In terms of Section 20-A of TADA, notwithstanding anything contained in the Code of Criminal Procedure, no information about the commission of an offence under the Act can be recorded by the police without the prior approval of the District Superintendent of Police.

Cases Referred (5)

2009(4) Supreme 452
SUPREME COURT OF INDIA
Altamas Kabir and Mukundakam Sharma, JJ.
Izharul Haq Abdul Hamid Shaikh & Anr. — Appellants
versus
State of Gujarat — Respondent
Criminal Appeal No. 811 of 2008 with Crl. A. No. 813/2008 & Crl. A.D23837/2008
Decided on : 06-03-2009

IMPORTANT POINT
In terms of Section 20-A of TADA, notwithstanding anything contained in the Code of Criminal Procedure, no information about the commission of an offence under the Act can be recorded by the police without the prior approval of the District Superintendent of Police.