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2019 Supreme(SC) 222

SUPREME COURT OF INDIA
A.M. KHANWILKAR, AJAY RASTOGI, JJ.
The State Of Gujarat – Appellant(s)
Versus
Anwar Osman Sumbhaniya And Others – Respondent(s)
Criminal Appeal Nos. 1359-1361 of 2007
Decided on : 27-02-2019

Advocates Appeared:
For the Appellant :Ms. Hemantika Wahi, Advocate
For the Respondent: Mr. Baij Nath Patel, Adv. Ms. Sweta, Adv. Ms. Romila, Adv. Ms. Nidhi, AOR.

IMPORTANT POINTS
Cognizance of offences under TADA cannot taken in absence of valid sanction.
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.

Headnote:(a) Terrorist and Disruptive Activities (Prevention) Act, 1987 – Section 20-A(2) – sanction for prosecution – DGP, taking note of the FIR and proposal of DSP to apply provisions of TADA casually approving the proposal – Cannot be said to be sanction u/s 20-A(2) – Held, Designated court could not have taken cognizance of offences punishable under TADA for want of a valid sanction. (Para 11, 13, 15)
       (1997) 7 SCC 744 – Relied upon
       (b) Terrorist and Disruptive Activities (Prevention) Act, 1987 – Section 20-A(2) – Sanctioning authority not referring to materials gathered during investigation – Only referring to possession and recovery of two walky-talkies from the accused – Sanction order not specifying the offence u/s 3 against sanction was granted – Walky-talky not a classified arms and ammunition – The sanction held not valid. (Para 19, 20)
       (c) Terrorist and Disruptive Activities (Prevention) Act, 1987 – Section 20-A(2) – Designated court not framing any issue as regards validity of sanctions granted by DGP – Still deciding the issue – The issue goes to the root of the matter and is sine qua non for a valid prosecution concerning TADA offences and including the jurisdiction of the Designated Court – Approach of Designated court held justified. (Para 21)
       (d) Administration of criminal justice – Respondents charged under TADA and other enactments – Designated court could not proceed under TADA for want of valid sanction – Prosecution case resting solely on confessional statement under TADA – Could not be used for prosecution under other enactments – Held, Designated court rightly acquitted the respondents. (Para 22, 24, 25)
       (2005) 2 SCC 409 – Relied upon
       (1996) 11 SCC 61; (2007) 13 SCC 387; (2001) 10 SCC 597; 1992 Supp. (1) SCC 222; (1998) 4 SCC 494; (2005) 11 SCC 600; (2017) 13 SCC 685 – Referred

       Facts of the case:
       A complaint was lodged by one Bakul Vithalbhai Jani, on the basis of information that respondent No. 1 - Anwar Osman Subhaniya, resident of Salaya Barlovas, Hussaini Chowk "Hasmi Manzil", was in illegal possession of foreign made fire arms weapons at his residential house. In raid and seizure some arms were recovered.
       Separate charge-sheets were filed against the respondents for offences punishable under Sections 121, 121A, 122 read with Section 34 of the Indian Penal Code, Sections 3, 4 and 5 of TADA, Sections 25(1)(A)(D), 25(1AA), 25(1B)(A B F G), 27(1), 29(A) of the Arms Act, 1959, Section 20 of the Indian Telegraph Act, 1885 and Section 6(1-A) of the Indian Wireless Telegraphy Act, 1933. The respondents were tried for the aforesaid offences in Special TADA Case Nos. 3/1994, 3/1997 and 1/2005, before the Special Court at Jamnagar, which was then transferred to the Court of Designated Judge at Jamnagar. Since all the three charge-sheets were in connection with one and the same offence and to obviate repetition of evidence, consolidated evidence was recorded for all the cases in Special TADA Case No. 3/1994.
       The Designed Court acquitted the respondents.
       Finding of the Court:
       Designated court rightly acquitted the respondents.
       Result: Appeals dismissed.

JUDGMENT

A.M. Khanwilkar, J.

The instant appeals filed under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "TADA"), are against the final judgment and order dated 12th January, 2007 passed by the Designated Judge, Jamnagar in Special TADA Case Nos. 3/1994, 3/1997 and 1/2005, whereby the respondents have been acquitted after finding them not guilty of the stated offences.

2. Separate charge-sheets were filed against the respondents for offences punishable under Sections 121, 121A, 122 read with Section 34 of the Indian Penal Code, Sections 3, 4 and 5 of TADA, Sections 25(1)(A)(D), 25(1AA), 25(1B)(A B F G), 27(1), 29(A) of the Arms Act, 1959 (for short "1959 Act"), Section 20 of the Indian Telegraph Act, 1885 (for short "1885 Act") and Section 6(1-A) of the Indian Wireless Telegraphy Act, 1933 (for short "1933 Act"). The respondents were tried for the aforesaid offences in Special TADA Case Nos. 3/1994, 3/1997 and 1/2005, before the Special Court at Jamnagar, which was then transferred to the Court of Designated Judge at Jamnagar. Since all the three charge-sheets were in connection with one and the same offence and to obviate repetition of evidence, consolidated evidence was recorded for all the cases in Special TADA Case No. 3/1994.

3. The complaint (Exh.27A) was lodged by one Bakul Vithalbhai Jani (PW-6), on the basis of information that respondent No. 1 - Anwar Osman Subhaniya, resident ofSalaya Barlovas, Hussaini Chowk "Hasmi Manzil", was in illegal possession of foreign made fire arms weapons at his residential house. The raiding party, after obtaining prior approval (Exh. 30) of Pramod Kumar Jha, DSP (PW-15), proceeded along with search warrant, and upon search of the residential house of respondent No. 1, conducted by the raiding party, following items were seized:

(i) One - Foreign made carbine gun with magazine valued Rs. 2 lakhs,

(ii) One - Foreign made revolver with eight chambers worth Rs. 60,000/-.

(iii) One - Foreign made revolver with six chambers worth Rs. 45,000/-.

(iv) One - Transmitter walky-talky set worth Rs. 1 lakh,

(v) 52 live cartridges of 9 mm stain guns,

(vi) 4 live cartridges of revolvers.

4. Immediately after recovery of arms and ammunition, after seeking prior oral approval of PW-6, FIR was lodged vide CR-21/93 for the stated offences only against respondent No. 1 and he came to be arrested on 18th June, 1993. Later, on 21st June, 1994, a charge-sheet was filed against respondent No. 1 and the case was registered as Special TADA Case No. 3/1994. Along with the charge-sheet, sanction for prosecution (Exh. 84)was obtained from A.K. Tandon, Director General of Police (PW-14) under Section 20-A(2) of TADA on 3-9/11-93. Respondent No. 2 - Junas Hazi Ibrahim came to be arrested on 20th March, 1997 and his confessional statement under Section 15 of TADA was recorded on 25th March, 1997, when he stated that he sold one carbine gun to respondent No. 1. Charge-sheet was filed against respondent No. 2 on 6th April, 1997 whereafter a case was registered against him as Special TADA Case No. 3/1997 before the Designated Court, Jamnagar. Respondent No. 3 came to be arrested in 2005 in connection with another CR No. 43/1994 registered under Sections 3, 4 & 5 of TADA by the B. Division Police Station on 10th December, 2004. A transfer warrant was obtained from the TADA Court, Jamnagar for arresting and taking custody of the respondent No. 3 before his arrest. After completion of investigation against respondent No. 3, separate charge-sheet came to be filed on 29th April, 2005 after obtaining prior sanction (Exh.57) under Section 20-A(2) of TADA from A.K. Bhargav dated 1st April, 2005.

5. As aforesaid, all the three separate charge-sheets were registered as three Special TADA cases, being Special TADA Case Nos. 3/1994, 3/1997 and 1/2005 before the Designated Court at Jamnagar. The De

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2019 Supreme(SC) 222

SUPREME COURT OF INDIAA.M. KHANWILKAR, AJAY RASTOGI, JJ.The State Of Gujarat – Appellant(s)Versus Anwar Osman Sumbhaniya And Others – Respondent(s)Criminal Appeal Nos. 1359-1361 of 2007Decided on : 27-02-2019

IMPORTANT POINTSCognizance of offences under TADA cannot taken in absence of valid sanction.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.

Cases Referred (10)

SUPREME COURT OF INDIA
A.M. KHANWILKAR, AJAY RASTOGI, JJ.
The State Of Gujarat – Appellant(s)
Versus
Anwar Osman Sumbhaniya And Others – Respondent(s)
Criminal Appeal Nos. 1359-1361 of 2007
Decided on : 27-02-2019

IMPORTANT POINTS
Cognizance of offences under TADA cannot taken in absence of valid sanction.
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.