IMPORTANT POINT
Either grant of prior approval by the District Superintendent of Police or alternatively, grant of approval by State Government after due application of mind independently will validate prosecution under TADA.

JUDGMENT :

A.K. Sikri, J.

All these appeals arise out of a common judgment dated 24.04.2012 rendered by the Designated Court for Rajasthan at Ajmer in TADA Special Case Nos. 1, 2 & 3 of 1999.

Four accused persons were arrayed and prosecuted by the prosecution under Sections 3(2)(ii), 3(3) and 6(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as “TADA Act” and Section 4A of the Explosive Substances Act, 1908. The TADA Court has acquitted two accused, namely, M. Jamal Alvi and Habib Ahmed.

Against their acquittal, State of Rajasthan has filed appeals which are registered as Criminal Appeal Nos. 2464-66 of 2014. Other two accused, namely, Abre Rehmat Ansari @ Qari and Dr. Mohd. Jalees Ansari, have been convicted by the TADA Court and challenging that conviction, these persons have filed Criminal Appeal Nos. 464-466 of 2013. It is for this reason, we have heard all these appeals together which are being disposed of by this common judgment.

Mr. R.K. Dash, learned senior counsel, appearing for the convicted accused persons submitted at the outset that he would not be going into the merits of the case because of the reason that the prosecution has to fail due to non-compliance of the mandatory requirements of Section 20A of the TADA Act. For this reason, we are eschewing any discussion on the merits of the case. Section 20A deals with the cognizance of offense that has to be taken under TADA Act and reads as under :-

“20-A Cognizance of offence.

(1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.

(2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police, or as the case may be, the Commissioner of Police.”

As per the aforesaid Section, no information about the commission of offense under TADA is to be recorded by the police without the prior approval of District Superintendent of Police. The specific authority which is named under sub-Section (1) of Section 20A is District Superintendent of Police. In the present case, it is on record that the approval that was taken was of Additional Director General of Police Mr. Shyam Partap Singh Rathore. The TADA Court has treated the said approval as valid because of the reason that approval is given by an authority which is higher than the District Superintendent of Police. The question, therefore, is as to whether it is only District Superintendent of Police whose approval will meet the requirements of law or it can be given by an Officer higher in rank. This question is no more res integra and is settled by a series of judgments of this Court. It is not necessary to give account of all those judgments as in the latest judgment rendered by this Court in Hussein Ghadially @ M.H.G.A. Shaikh & Ors. vs. State of Gujarat (2014) 8 SCC 425, all the previous precedents are taken note of and on that basis, this Court has reiterated the position in law that even an authority higher in rank would not be competent to give the approval as required under sub-Section (1) of Section 21A of the TADA Act. The same has been interpreted in the said judgment in the following manner:-

“21. A careful reading of the above leaves no manner of doubt that the provision starts with a non obstante clause and is couched in negative phraseology. It forbids recording of information about the commission of offences under TADA by the Police without the prior approval of the District Superintendent of Police. The question is whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. Our answer to that question is in the negative. The reasons are not far to seek:

21.1 We say so firstly because the statute vests the grant approval in a