# ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. STATE OF GUJARAT

- **Citation:** [2012] 12 S.C.R. 1033
- **Court:** Supreme Court of India
- **Decided:** 2012-09-26
- **Case number:** Criminal Appeal No. 482 of 2002
- **Bench:** H.L. Dattu, Chandramauli Kr. Prasad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ashrafkhan-babu-munnekhan-pathan-v-state-of-gujarat-28219
- **Pages:** 44

## Headnote

B
Terrorist and Disruptive Activities (Prevention) Act, 1987:
s.20-A(1) - Approval under - Absence - Effect of -
c
·Prosecution under provisions of /PC, TADA, Arms Act and
Explosive Substances Act - Of 60 accused - Conviction of
11 accused by Designated Court under provisions of TADA,
Arms Act and Explosive Substances Act and acquittal of 41
accused - Appeals by the convicted accused as well as the 0
State - Plea of the accused that conviction was vitiated in
absence of approval u/s. 20A(1) before registration of FIR -
Plea of State interalia that there was approval by the Deputy
Commissioner of Police (PW65) on 9.6.1994 as well as on
· 11.8.1994 and approval given by Additional Chief Secretary,
E
Home Department of the State on 15.6.1994 - Held: From
the evidence on record is it not proved that the Deputy
Commissioner of Police (PW65) granted approval uls. 20A(1) either on 9.6.1994 or on 11.8.1994 - The approval by
the Addi. Chief Secretary, Home Department of State, though
is proved, but the same is inconsequential ass. 20-A(1) does
F
not contemplate approval by the Addi. Chief Secretary, Home
Department of the State - Thus the conviction stands vitiated
in absence of approval u/s. 20-A(1) - However, the absence
of approval u/s. 20-A(1) would not vitiate the conviction under
the other penal provisions viz. Arms Act and Explosive
G
Substances Act - But since the conviction under TADA is
vitiated for non-compliance of s. 20-A(1), the confessions (on
the basis of which conviction under Arms Act and Explosive
1033
H
1034
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A Substances Act was based) cannot be relied upon to
establish the guilt thereunder - Hence the conviction under
the provisions of Arms Act and Explosive Substances Act is
set aside - Benefit of the judgment is also given to the
convicted accused who did not approach Supreme Court or
B whose appeals were not entertained by this court on the
ground that they had served out the sentence - Arms Act,
1959 - ss. 7 and 25 (1A) - Explosive Substances Act, 1908
- ss. 4, 5 and 6.
s. 20-A(1) and 20-A(2) - Approval under s. 20-A(1) -
C Absence of- Whether inconsequential if sanction u/s. 20-A(2)
granted - Held: The approval and sanction operate in
different and distinct stages and for successful prosecution,
both the requirements have to be complied with - The
sanction uls. 20-A(2) does not render approval uls. 20-A(1)
D inconsequential.
ss. 20-A(1) and 20-A(2) - Non-compliance of s. 20-A(1)
- Whether curable defect in parity with s. 20-A(2) - Held: It
is not curable - An Act which is harsh, containing stringent
E provisions prescribing different procedure cannot be
construed liberally - For ensuring rule of law, its strict
adherence has to be ensured.
ss. 20-A(1) - Non compliance of - Whether curable
defect u/s. 465 Cr.P. C - Held: s. 465 is attracted to trial under
F TADA - But since the defect goes to the root of the matter, it
is not covered bys. 465 - Code of Criminal Procedure, 1973
- s. 465.
ss. 20-A(1) and 18-Approval unders. 20-A(1)-Absence
G of - Whether rendered irrelevant on Designated Court taking
cognizance of the case in exercise of power uls. 18 and
whether the issue permissible to be raised at later stage -
Held: Exercise of power u/s. 18 by Designated Court does not
prevent the accused to challenge the trial or conviction later.
H
ASHRAFKHAN@BABU MUNNEKHAN PATHAN v.
1035
STATE OF GUJARAT
ss. 20-A(1) and 14 - Non-compliance of s. 20-A(1) -
A
Whether rendered irrelevant by the fact that Designated Court
is empowered to take cognizance u/s. 14 irrespective of
absence of compliance of s. 20-A(1) - Held: Power uls. 14 to
the Designated Court does not make all other provisions of
the Act inconsequential.
B
s. 20-A(1) - Interpretation of- Requirement of approval
u/s. 20-A(1) cannot be said to be directory- Negative words
used in the provision makes it clear that it is not directory -
Provisions of TADA has to be strictly construed -
C
Interpretation of Statutes.
Interpreta

## Text

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[2012] 12 S.C.R. 1033
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN
A
v.
STATE OF GUJARAT
(Criminal Appeal No. 482 of 2002 etc.)
SEPTEMBER 26, 2012
[H.L. DATTU AND CHANDRAMAULI KR. PRASAD, JJ.]
B
Terrorist and Disruptive Activities (Prevention) Act, 1987:
s.20-A(1) - Approval under - Absence - Effect of -
c
·Prosecution under provisions of /PC, TADA, Arms Act and
Explosive Substances Act - Of 60 accused - Conviction of
11 accused by Designated Court under provisions of TADA,
Arms Act and Explosive Substances Act and acquittal of 41
accused - Appeals by the convicted accused as well as the 0
State - Plea of the accused that conviction was vitiated in
absence of approval u/s. 20A(1) before registration of FIR -
Plea of State interalia that there was approval by the Deputy
Commissioner of Police (PW65) on 9.6.1994 as well as on
· 11.8.1994 and approval given by Additional Chief Secretary,
E
Home Department of the State on 15.6.1994 - Held: From
the evidence on record is it not proved that the Deputy
Commissioner of Police (PW65) granted approval uls. 20A(1) either on 9.6.1994 or on 11.8.1994 - The approval by
the Addi. Chief Secretary, Home Department of State, though
is proved, but the same is inconsequential ass. 20-A(1) does
F
not contemplate approval by the Addi. Chief Secretary, Home
Department of the State - Thus the conviction stands vitiated
in absence of approval u/s. 20-A(1) - However, the absence
of approval u/s. 20-A(1) would not vitiate the conviction under
the other penal provisions viz. Arms Act and Explosive
G
Substances Act - But since the conviction under TADA is
vitiated for non-compliance of s. 20-A(1), the confessions (on
the basis of which conviction under Arms Act and Explosive
1033
H
1034
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A Substances Act was based) cannot be relied upon to
establish the guilt thereunder - Hence the conviction under
the provisions of Arms Act and Explosive Substances Act is
set aside - Benefit of the judgment is also given to the
convicted accused who did not approach Supreme Court or
B whose appeals were not entertained by this court on the
ground that they had served out the sentence - Arms Act,
1959 - ss. 7 and 25 (1A) - Explosive Substances Act, 1908
- ss. 4, 5 and 6.
s. 20-A(1) and 20-A(2) - Approval under s. 20-A(1) -
C Absence of- Whether inconsequential if sanction u/s. 20-A(2)
granted - Held: The approval and sanction operate in
different and distinct stages and for successful prosecution,
both the requirements have to be complied with - The
sanction uls. 20-A(2) does not render approval uls. 20-A(1)
D inconsequential.
ss. 20-A(1) and 20-A(2) - Non-compliance of s. 20-A(1)
- Whether curable defect in parity with s. 20-A(2) - Held: It
is not curable - An Act which is harsh, containing stringent
E provisions prescribing different procedure cannot be
construed liberally - For ensuring rule of law, its strict
adherence has to be ensured.
ss. 20-A(1) - Non compliance of - Whether curable
defect u/s. 465 Cr.P. C - Held: s. 465 is attracted to trial under
F TADA - But since the defect goes to the root of the matter, it
is not covered bys. 465 - Code of Criminal Procedure, 1973
- s. 465.
ss. 20-A(1) and 18-Approval unders. 20-A(1)-Absence
G of - Whether rendered irrelevant on Designated Court taking
cognizance of the case in exercise of power uls. 18 and
whether the issue permissible to be raised at later stage -
Held: Exercise of power u/s. 18 by Designated Court does not
prevent the accused to challenge the trial or conviction later.
H
ASHRAFKHAN@BABU MUNNEKHAN PATHAN v.
1035
STATE OF GUJARAT
ss. 20-A(1) and 14 - Non-compliance of s. 20-A(1) -
A
Whether rendered irrelevant by the fact that Designated Court
is empowered to take cognizance u/s. 14 irrespective of
absence of compliance of s. 20-A(1) - Held: Power uls. 14 to
the Designated Court does not make all other provisions of
the Act inconsequential.
B
s. 20-A(1) - Interpretation of- Requirement of approval
u/s. 20-A(1) cannot be said to be directory- Negative words
used in the provision makes it clear that it is not directory -
Provisions of TADA has to be strictly construed -
C
Interpretation of Statutes.
Interpretation of Statutes - Rule of interpretation -
Legislative intent - Plain ordinary grammatical meaning
affords the best guide to ascertain the intention of the
legislature - Other methods to understand the meaning is
D
resorted to, when the language of the provision is ambiguous
or leads to absurd result.
Charge-sheets were filed against 62 accused
including the appellants-accused in five stages, by the
E
police. The accused were charged u/ss. 1208 IPC, ss. 3
and 5 of Terrorist and Disruptive Activities (Prevention)
Act, 1987, ss. 4, 5 and 6 of Explosive Substances Act,
1908 and s. 25 (1A) of the Arms Act. Designated Court
charged 60 accused of the above-mentioned charges.
Accused No. 57 was discharged and accused No. 9
absconded. Designated Court convicted 11 accused u/
F
ss. 3 and 5 of TADA, ss. 7 and 25(1A) of Arms Act and
ss. 4, 5 and 6 of Explosive Substances Act. 41 accused
were acquitted.
Convicted accused filed appeals to this Court
challenging their conviction. State also flled appeals
aggrieved by Inadequacy of the sentence to the
convicted accused and also challenged acquittal order.
G
H
1036
SUPREME COURT REPORTS
[2012) 12 S.C.R.
A
The appellants-accused contended that since the
B
FIR under the provisions of TADA was registered without
approval of District Superintendent of Police as
contemplated u/s. 20-A(1) of TADA and therefore the
conviction was vitiated.
The State contended that the Deputy Commissioner
PW 65 had given prior approval on 9.6.1994 and also on
11.8.1994 for recording FIR and that approval was also
given by the Addi. Chief Secretary, Home Department on
15.6.1994. Alternatively, the State contended that none compliance of s. 20-A(1) is not fatal as the same is curable
defect u/s. 465 Cr.P.C.; that since absence of sanction u/
s. 20-A(2) is a curable defect, by parity absence of
approval u/s. 20-A(1) would also be curable; that the
police having granted sanction u/s. 20-A(2), conviction
D cannot be held bad only on the ground of noncompliance of approval; that the Designated Court having
taken cognizance and decided to try the case in exercise
of power u/s. 18 TADA, prior defects are rendered
irrelevant and cannot be raised; that Designated Court
E having been empowered to take cognizance u/s. 14
TADA, irrespective of absence of compliance u/s. 20-A(1),
its non-compliance would not be fatal to the prosecution;
and that absence of approval u/s. 20-A(1) would not vitiate
the conviction under other penal provisions i.e. Arms Act
F and Explosive Substances Act.
Allowing the appeals filed by the accused and
dismissing the appeals filed by the State, the Court
HELD: 1.1 The case of the prosecution that the
G Deputy Commissioner granted approval under Section
20-A(1) of TADA before registration of the case is fit to be
rejected. the Deputy Commissioner PW 65 has
categorically stated in his evidence that he had gone to
the Supreme Court with original records, which included
H the First Information Report, on which he had granted
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v.
1037
STATE OF GUJARAT
approval and handed over the same to the counsel.
A '
Thereafter, according to him, the original First Information
Report got lost or misplaced. It has been brought to the
notice of the Court that accused 'YL' had not come to this
Court for grant of bail and, therefore, the Deputy
Commissioner had no occasion to come with the original
B
records in connection with that case. True it is that some
of the accused persons in the case had approached this
Court for various reliefs, but in the face of the evidence
of PW 65 that he came along with the record in
connection with the case of the accused 'YL' is fit to be c
rejected. [Para 20] [1052-G-H; 1053-A-C]
1.2 Charge-sheet in the case has been filed in five
stages. Further, report under Section 157 Cr.P.C. _has
been filed and all these acts had taken place before the
alleged loss of the document in the Supreme Court and,
D
therefore, should have formed part of the charge-sheet
and the report given under Section 157 Cr.P.C. It has also
come on record that later on, the Assistant Commissioner
of Police, Crime Branch had sought for approval of the
Deputy Commissioner which he granted on 11th of E
August, 1994. The communication of the Assistant
Commissioner of Police (Exh.1173) does not refer to any
approval granted by the Deputy Commissioner earlier
and, not only that, the Deputy Commissioner while giving
approval on 11th of August, 1994 has nowhere
F
whispered that earlier he had already granted the
approval. No explanation is forthcoming from the side
of the prosecution that when Deputy Commissioner PW65
had already granted approval on 9th of June, 1994, what
was the occasion to write to him for grant of another G
approval and the Deputy Commissioner granting the
same. To prove prior approval, the prosecution has
produced the xerox copy. According to the evidence of
Deputy Commissioner PW65, he had got it prepared from
the copy kept in his office. When a copy of the approval
H
1038
SUPREME COURT REPORTS
(2012] 12 S.C.R.
A was kept in the office of the Deputy Commissioner itself,
why the xerox copy was produced. PW65 in his crossexamination, has admitted that he did not remember
whether there was any such paper in his office or not for
grant of approval for which he had deposed. From the
B analysis of the evidence on record, there is no manner
of doubt that the Deputy Commissioner PW65 did not
grant prior approval before registration of the case.
[Paras 21 and 23] [1053-C-H; 1054-A-G]
1.3 The prosecution has relied on another approval
C dated 11th of August, 1994 granted by the Deputy
Commissioner. In order to prove this, reference is made
to the letter of the Assistant Commissioner addressed to
the. Deputy Commissioner of Police (Exh. 1173). In the
said letter, the Assistant Commissioner of Police has
D observed that the Home Department of the Government
has given approval to apply Sections of TADA and the
approval of the Deputy Commissioner is necessary in this
regard. The Deputy Commissioner of Police on the same
day granted approval. However, Deputy Commissioner
E PW65, in his evidence, has nowhere stated about the
approval granted on 11th of August, 1994 though he had
deposed about the approval granted on 9th of June,
1994. In the face of It, the case of the prosecution that
Deputy Commissioner PW65 gave another approval on
F 11th of August, 1994 Is also fit to be rejected. [Para 24]
[1055-A-C]
1.4 From a plain reading of s. 20-A(1) of TADA, It Is
evident that no Information about the commission of an
offence shall be recorded by the pollce without the prior
G approval of the District Superintendent of Polle;e. The
legislature, by using the negative word In Section 20-A(1)
of TADA, had made Its Intention clear. The scheme of
TADA Is different than that of ordinary criminal statutes
and, therefore, Its provisions have to be strictly
H construed. Negative words can rarely be held directory.
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v.
1039
STATE OF GUJARAT
The plain ordinary grammatical meaning affords the best A
guide to ascertain the intention of the legislature. Other
methods to understand the meaning of the statute is
resorted to, if the language is ambiguous or leads to
absurd result. No such situation exists here. In the face
of it, the requirement of prior approval by the District B
Superintendent of Police, on principle, cannot be said to
be directory in nature. [Para 27] [1056-C-E]
Anirudhsinhji Karansinhji Jadeja v. State of Gujarat
(1995) 5 SCC 302: 1995 (2) Suppl. SCR 637; Mukhtiar
Ahmed Ansari v. State (NCT of Delhi) (2005) 5 SCC 258:
C
2005 (3) SCR 797; Mohd. Yunus v. State of Gujarat (1997)
8 SCC 459: 1997 (4) Suppl. SCR 494 - relied on.
Kalpnath Rai v. State (1997) 8 SCC 732; State of A.P.
v. A.Sathyanarayana (2001) 10 SCC 597 - referred to.
D
2.1 In view of the evidence on record, the case of the
prosecution that the Additional Chief Secretary, Home
Department, on 15th of June, 1994 had given approval is
accepted. Section 20-A of TADA authorises the District
E
Superintendent of Police to grant approval for recording
the offence and Additional Chief Secretary of the Home
Department or for that matter, State Government does not
figure in that. The legislature has put trust on the District
Superintendent of Police and therefore it is for him to uphold
that trust and nobody else. Hence approval by the
Additional Chief Secretary is inconsequential and it will
not save the prosecution on this count, if found vulnerable
otherwise. [Paras 25 and 31] [1055-E; 1059-C-E]
F
2.2 In order to prevent the abuse of TADA, the State
G
Government may put other conditions and prescribe
approval by the Government or higher officer in the
hierarchy but the same cannot substitute the requirement
of approval by the District Superintendent of Police. Not
only this, the District Superintendent of Police is obliged
H
1040
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A to grant approval on its own wisdom and outside dictate
would vitiate his decision. [Para 31] [1059-E·F]
Anirudhsinhji Karansinhji Jadeja v. State of Gujarat
(1995) 5 SCC302: 1995 (2) Suppl. SCR 637- relied on.
B
3. Section 465 Cr.P.C. shall be attracted in the trial of
an offence by the Designated Court under TADA. But
Section 465 Cr.P.C. shall not be a panacea for all error,
omission or irregularity. Omission to grant prior approval
for registration of the case under TADA by the
C Superintendent of Police is not the kind of omission which
is covered under Section 465 Cr.P.C. It is a defect which
goes to the root of the matter and it is not one of the curable
defects. [Paras 32 and 33] [1059-H; 1060-A-E-F]
0
4.1 It is also not correct to say that absence of
sanction under Section 20-A(2) by the Commissioner of
Police has been held to be a curable defect and for parity
of reasons, the absence of approval under Section 20A(1) would also be curable. An Act which is harsh,
E containing stringent provision and prescribing procedure
substantially departing from the prevalent ordinary
procedural law cannot be construed liberally. For
ensuring rule of law, its strict adherence has to be
ensured. [Para 34] [1060-F-H; 1061-A]
F
4.2 The very existence of the approval under Section
20-A(1) of TADA has been questioned by the accused
during the course of trial, which is evident from the trend
of cross-examination. Not only this, it was raised before
the Designated Court during argument and has been
G rejected. Thus, it cannot be said that it was not raised at
the earliest. [Para 35] [1061-F-G]
5. It is not correct to say that the accused cannot
assail their conviction on the ground of absence of
H approval under Section 20-A(1) of TADA by the Deputy
ASHRAF KHAN @ BABU MUNNEKHAN PATHAN v.
1041
STATE OF GUJARAT
Commissioner, when the Commissioner of Police had
A
granted sanction under Section 20-A(2) of TADA. The
provisions of TADA are stringent and consequences are
serious and in order to prevent persecution, the
legislature in its wisdom had given various safeguards
at different stages. It has mandated that no information
B
about the commission of an offence under TADA shall be
recorded by the police without the prior approval of the
District Superintendent of Police. Further safeguard has
been provided and restriction has been put on the court
not to take cognizance of any offence without the c
previous sanction of the Inspector-General of Police or
as the case may be, the Commissioner of Police. Both
operate in different and distinct stages and, therefore, for
successful prosecution both the requirements have to be
complied with. In a case in which different safeguards
0
have been provided at different stages, it cannot be held
that adherence to the last safeguard would only be
relevant and breach of other safeguards shall have no
bearing on the trial. [Paras 36] [1062-A-D]
Ahmad Umar Saeed Sheikh v. State of U.P. (1996) 11
E
sec 61 - relied on.
Lal Singh v. State of Gujarat (1998) 5 SCC 529 - held
inapplicable.
6. It is not correct to say that the Designated Court
F
having taken cognizance and decided to try the case by
itself in exercise of the power under Section 18 of TADA,
the prior defects, if any, are rendered irrelevant and
cannot be raised. The power of the Designated Court u/
s. 18, to transfer the case to be tried by a court of G
competent jurisdiction would not mean that in case the
Designated Court has decided to proceed with the trial,
any defect in trial, cannot be agitated at later stage. Many
ingredients which are required to be established to confer
jurisdiction on a Designated Court are required to be
H
1042
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A proved during trial. At the stage of Section 18, the
Designated Court has to decide as to whether to try the
case itself or transfer the case for trial to another court
of competent jurisdiction. For that, the materials
collected during the course of investigation have only to
B be seen. The investigating agency, in the present case,
has come out with a case that prior approval was given
for registration of the case and the allegations made do
constitute an offence under TADA. In the face of it, the
Designated Court had no option than to proceed with the
c trial. However, the decision by the Designated Court to
proceed with the trial shall not prevent the accused to
contend in future that they cannot be validly prosecuted
under TADA.
Even in a case which is not fit to be tried
by the Designated Court but it decides to do the same,
0 instead of referring the case to be tried by a court of
competent jurisdiction, it will not prevent the accused to
challenge the trial or conviction later on. [Para 37] [1062F-H; 1063-A-E]
7. Section 14 of TADA confers jurisdiction on a
E Designated Court to take cognizance of any offence
when the accused being committed to it for trial upon
receiving a complaint of facts which constitute s'uch
offence or upon a police report of such facts. The
offence under TADA is to be tried by a Designated Court.
F The Designated Court has all the powers of Court of
Session and it has to try the offence as if it is a Court of
Session. Cr.P.C. provides for commitment of the case
for trial by the Court of Session. Section 14(1) of TADA
provides that the Designated Court may take cognizance
G on receiving a complaint of facts or upon a police report.
Had this provision not been there, the cases under TADA
would have been tried by the Designated Court only after
commitment. In any view of the matter, the accused
during the trial under TADA can very well contend that
H their trial is vitiated on one or the other ground
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v.
1043
STATE OF GUJARAT
notwithstanding the fact that the Designated Court had
A
taken cognizance. Taking cognizance by the Designated
Court shall not make all other provisions inconsequential.
[Para 38] [1063-F-H; 1064-A-B]
8.1 The Designated Court, besides trying the case
B
under TADA, can also try any other offence with which
the accused may be charged at the same trial, if the
offence is connected with the offence under TADA.
When the Designated Court had the power to try offences
under TADA as well as other offences, it is implicit that it
·has the power to convict also and that conviction is C
permissible to be ordered under TADA or other penal
laws or both. It is not necessary for the Designated Court
to first order conviction under TADA and only thereafter
under other penal law. "The Designated Court is
empowered to convict the accused for the offence under D
any other law notwithstanding the fact that no offence
under TADA is made out." [Para 39] [1064-D-G]
Prakash Kumar v. State of Gujarat (2005) 2 SCC 409:
2005 (1) SCR 408 - followed.
E
8.2 Though the conviction of the accused is held to
have been vitiated on account of non-compliance of
Section 20-A(1) of TADA, it may be permissible in law to
maintain the conviction under the Arms Act and the
Explosive Substances Act but that shall only be possible
F
when there are legally admissible evidence to establish
those charges. The Designated Court has only relied on
the confessions recorded under TADA to convict the
accused for offences under the Arms Act and the
Explosive Substances Act. In view of the finding that their G
conviction is vitiated on account of non-compliance of the
mandatory requirement of prior approval under Section
20-A(1) of TADA, the confessions recorded cannot be
looked into to establish the guilt under the aforesaid Acts.
H
1044
SUPREME COURT REPORTS
[2012) 12 S.C.R.
A Hence, the conviction of the accused under Section 7
and 25(1A) of the Arms Act and Section 4, 5 and 6 of the
Explosive Substances Act cannot also be allowed to
stand. [Para 40) [1065-0-G]
8
9. Many of the accused, because of poverty or for the
reason that they had already undergone the sentence,
have not preferred appeals before this Court. Further, this
Court had not gone into the merits of the appeals
preferred by few convicts on the ground that they have
already served out the sentence and released thereafter.
C The view taken by this Court goes to the root of the matter
and vitiates the conviction and, hence, benefit of this
judgment is granted to all those accused who have been
held guilty and not preferred appeal and also those
convicts whose appeals have been dismissed by this
D Court as infructuous on the ground that they had already
undergone the sentence awarded. [Para 44) [1066-G-H;
1067-A·B]
Case Law Reference:
E
1997 (4) Suppl. SCR 494 Relied on
Para 21
1995 (2) Suppl. SCR 637 Relied on
Paras 27
and 31
2005 (3) SCR 797
Relied on
Para 28
F
(1997) 8 sec 132
Referred to
Para 29
(2001) 1 o sec 597
Referred to
Para 30
(1998) 5 sec 529
held inapplicable Para 34
G
(1996) 11 sec 61
Relied on
Para 35
2005 (1) SCR 408
followed
Para 39
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
H No. 482 of 2002.
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v.
1045
STATE OF GUJARAT
From the Judgment & Order dated 31.01.2002 of the
A
Additional Designated Judge, Court No. 3, Ahmedabad City
in Tada Case No. 15/95 and 6/96 consolidated with Tada Case
No. 32/94 and 43/96.
WITH
Crl. A. Nos. 486-487, 762-765 and 766-768 of 2002.
Sushi! Kumar, Ranjit Kumar, Sanjay Jain, Afshan P., Vinay
Arora, Vimal Chandra S. Dave for the Appellant.
Yashank Adhyaru, Pinky Behra, Nandini Gupta (for
Hemantika Wahi), Kamini Jaiswal, Garvesh Kabra (A.C.),
Pooja Kabra, Abhishek Jaju, Nikita Kabra Jaju, E.C. Agrawala,
V. Anantharaman (For Meenakshi Arora), Balraj Dewan for the
Respondent.
B
c
D
The Judgment.of the Court was delivered by
CHANDRAMAULI KR. PRASAD, J. 1. These appeals
have been filed against the judgment and order dated 31st of
January, 2002 passed by Additional Designated Judge, Court
E
No.3, Ahmedabad City in TADA Case Nos. 15/1995 and 6/
1996 consolidated with TADA Case Nos. 32/1994 and 43/
1996.
2. According to the prosecution, Abdul Wahab Abdul Majid
Khan was arrested in a case of murder. On being interrogated
F
in that case, he made startling and shocking revelations. He
disclosed that accused Yusuf Laplap, who is involved in illegal
business of liquor and running a gambling den is in possession
of four foreign made hand grenades, revolvers and AK-47
rifles. The fountainhead of the weapons, according to the
G
information is notorious criminal Abdul Latif Shaikh and came
at the hand of accused Yusuf Laplap through his close
associate accused Abdul Sattar@ Sattar Chacha. Sattar gave
the arms and explosives to accused Siraj @ Siraj Dadhi, a
constable attached to Vejalpur Police Station. He in turn
H
1046
SUPREME COURT REPORTS
[2012] 12 S.C.R.
A delivered those arms and explosives to accused lmtiyaz
Nuruddin, the servant of Yusuf Laplap at latter's instance. The
aforesaid information was passed on to A.K. Suroliya, the
Deputy Commissioner of Police, Crime Branch. The police
party searched the house of the accused Yusuf Laplap in the
B night and found him leaving the house with two bags. From
one of the bags one revolver with ISi mark and five foreign made
hand grenades were recovered and from another bag five
detonators having clips affixed to it were found.
3. According to the allegation, the arms and explosives
C seized were similar to those used in the Ahmedabad City
earlier by gang of criminals and intended to be used in the
forthcoming "Jagannath Rath Yatra". The information given by
the Police Inspector, U.T. Brahmbhatt led to registration of
Crime No.
1-CR No. 11 of 1994 dated 9th of June, 1994, at
D the Crime Branch Police Station under Section 120B of the
Indian Penal Code, Section 3 & 5 of Terro.rist and Disruptive
Activities (Prevention) Act (hereinafter referred to as 'TADA'),
Section 7 & 25 (1) of the Arms Act and Section 4, 5 and 6 of
E
the Explosive Substances Act against seven accused persons'.
4. It is the case of the prosecution that the Police Inspector
U.T. Brahmbhatt, before recording the first information report,
sought prior approval of the Deputy Commissioner of Police,
Crime Branch, for registration of the case which was granted.
F It is only thereafter, the first information report was registered
and the investigation proceeded. It is also their case that
another approval was granted on 15th of June, 1994 by the
Additional Chief Secretary, Home Department. Not only that,
the Deputy Commissioner of Police, Crime Branch, PW-65 A.R.
G Suroliya gave another approval on 11th of August, 1994.
5. During the course of investigation, the complicity of large
number of persons surfaced. In all 46 AK-56 rifles, 40 boxes
1.
List of persons named in Crime No. 1-CR No. 11 of 1994 dated 9th of
H
June, 1994 is appended at Schedule No.-1.
ASHRAFKHAN @BABU MUNNEKHAN PATHAN v.
1047
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
of cartridges, 99 bombs, 110 fuse pins and 110 magazines
A
were brought to Ahmedabad and seized by the investigating
agency from various accused persons. These were distributed
to the accused persons for killing and terrorising the Hindu
community during "Jagannath Rath Yatra". All those persons
who were either found in possession or involved in transporting
B
or facilitating transportation of those weapons were chargesheeted. All these were intended to be used to disturb peace
and communal harmony during "Jagannath Rath Yatra".
6. Ultimately, the investigating agency, on 16th of
December, 1994 submitted first2 charge-sheet against 14
C
accused persons under Section 120B, 121A, 122, 123 and
188 of Indian Penal Code, Section 3 and 5 of TADA, Section
4, 5 and 6 of Explosive Substances Act, Section 25(1A) of
Arms Act, Section 135 of Customs Act and Section 135 (1) of
Bombay Police Act. Second3 charge-sheet came to be filed on
D
23rd of May, 1995 against 2 accused persons. Investigation
did not end there and third4, fourth5 and fifth" charge-sheets
were submitted on 17th of April, 1996, 20th of December, 1996
and 24th of May, 2000 against 33, 11 and 2 accused persons
respectively. Thus, altogether 62 persons were charge-sheeted.
E
7. The Designated Court framed charges against 60
accused persons under Section 120B of the Indian Penal
Code, Section 3 and 5 of TADA, Section 4, 5 and 6 of the
Explosive Substances Act and Section 25 (1A) of the Arms Act.
F
However, Accused No. 57 namely, Mohmad Harun @ Munna
2.
List of persons charge-sheeted in the first charge-sheet dated 16th of
December, 1994 ios appended at Schedule No.-11.
3.
List of persons charge-sheeted in the second charge-sheet dated 23rd
May, 1995 is appended at Schedule No.-111.
G
4.
List of persons charge-sheeted in the third charge-sheet dated 17th of April,
1996 is appended at Schedule No.-IV.
5.
List of persons charge-sheeted in the fourth charge-sheet dated 2oth of
December, 1996 is appended at Schedule No.-V .•
6.
List of persons charge-sheeted in the fifth charge-sheet dated 24th of May,
2000 is appended at Schedule No.VI.
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[2012] 12 S.C.R.
A @ Riyaz @ Chhote Rahim, has been discharged by the
Designated Court by its order dated 24th of August, 2001.
During the course of trial six accused namely, Adambhai
Yusufbhai Mandli (Shaikh), Accused No. 11, Fanes
Aehmohmad Ansari, Accused No. 18, Abdullatif Abdulvahab
B Shaikh, Accused No. 35, lkbal Jabbarkhan Pathan, Accused
No. 38, Firoz @ Firoz Kankani, Accused No. 56 and Jay
Prakash Singh @ Bachchi Singh, Accused No. 60 died. One
accused namely, Accused No. 9, Mohmad Ismail Abdul Shaikh
absconded.
c
8. In order to bring home the charge, the prosecution
altogether examined 70 witnesses and a large number of
documents were also exhibited. The accused were given
opportunity to explain the circumstances appearing in the
evidence against them and their defence was denial simpliciter.
D The Designated Court, on analysis of the evidence, both oral
and documentary, vide its order dated 31st of January, 2002
convicted 11 accused persons7 under Section 3 and 5 of
TADA, Section 7 and 25(1A) of the Arms Act and Section 4, 5
and 6 of the Explosive Substances Act. They have been
E sentenced to undergo rigorous imprisonment for five years for
the offence punishable under Section 3 and 5 of TADA and fine
with default clause. The Designated Court further sentenced
those convicted under Section 4, 5 and 6 of the Explosive
Substances Act to suffer rigorous imprisonment for five years
F and fine with default clause. They were further sentenced to
undergo rigorous imprisonment for five years and fine with
default clause under Section 7 and 25(1A) of the Arms Act. All
the sentences were directed to run concurrently. The
Designated Court, however, acquitted 41 accused8 of all the
G charges leveled against them.
7.
List of persons convicted by Designated Court vide its order dated 31st of
January, 2002 is appended at Schedule No.-Vll.
8.
List of persons acquitted by Designated Court vide its order dated 31st of
January, 2002 is appended at Schedule No.VIII.
H
All Schedules appended shall from part of the judgment.
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v.
1049
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.)
9. Those found guilty have preferred Criminal Appeal No.
A
482 of 2002 (Ashrafkhan @ Babu Munnekhan Pathan & Anr.
Vs. State of Gujarat) and Criminal Appeal Nos. 486-487 of
2002 (Yusufkhan@ Laplap Khuddadkhan Pathan & Ors. Vs.
State of Gujarat). State of Gujarat, aggrieved by the
inadequacy of sentence, preferred Criminal Appeal Nos. 762B
765 of 2002 (State of Gujarat Vs.
Yusufkhan @ Laplap
Khudadattkhan Pathan & Ors.) and also preferred Criminal
Appeal Nos. 766-768 of 2002 (State of Gujarat Vs. Abdul
Khurdush Abdul Gani Shaikh & Ors.) against acquittal.
10. As all these appeals arise out of the same judgment,
C
they were heard together and are being disposed of by this
common judgment.
11. We have heard Mr. Sushi! Kumar and Mr. Ranjit Kumar
learned Senior Counsel, Mr. Garvesh Kabra, learned amicus
D
curiae, Mr. Sanjay Jain and Ms. Meenakshi Arora, learned
counsel on behalf of the accused. Mr. Yashank Adhyaru,
learned Senior Counsel was heard on behalf of the State of
Gujarat.
12. In order to assail the conviction several submissions
were made by the learned counsel representing the accused.
However, as the conviction has to be set aside on a very short
ground, we do not consider it either expedient to incorporate
or answer those submissions.
13. We may record here that we have incorporated only
those parts of the prosecution case which have bearing on the
said point and shall discuss hereinafter only those materials
which are relevant for adjudication of the said issue.
14. It is the contention of the accused that the first
information report under the provisions of TADA was registered
without approval of the District Superintendent of Police as
contemplated under Section 20-A(1) of TADA and this itself
vitiates the conviction.
E
F
G
H
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SUPREME COURT REPORTS
[2012) 12 S.C.R.
A
15. Plea of the State, however, is that such an approval
was granted by A.R. Suroliya, the Deputy Commissioner of
Police, Crime Branch, who is an officer of the rank of District
Superintendent of Police. Alternatively, the State contends that
Section 20-A of TADA is a two tiered provision which provides
B for approval by the Deputy Commissioner under Section 20A(1) and sanction by the Commissioner under Section 20-A(2)
of TADA. In the absence of challenge to the sanction,
challenge only to the approval, to use the counsel's word "would
be curable defect under Section 465 of the Code of Criminal
c Procedure". It has also been pointed out that the accused
having not challenged the sanction granted by the
Commissioner of Police under Section 20-A(2) of TADA, they
cannot assail their conviction on the ground of absence of
approval under Section 20-A(1) by the Deputy Commissioner.
D In order to defend the conviction, the State of Gujarat further
pleads that the Designated Court having taken cognizance and
decided to try the case by itself under Section 18 of TADA, the
prior defects, if any, are rendered irrelevant and cannot be
raised. It has also been pointed out that the Designated Court
having been empowered to take cognizance under Section 14
E of TADA irrespective of absence of compliance of Section 20A(1) of TADA, its non-compliance would not be fatal to the
prosecution. It has also been highlighted that several
safeguards have been provided under the scheme of TADA
including the power of the court to take cognizance and
F proceed with the trial and once cognizance has been taken,
defects prior to that cannot be allowed to be raised. In any view
of the matter, according to the State, absence of approval under
Section 20-A(1) of TADA would not vitiate the conviction of the
G
accused persons under other penal provisions.
16. In view of the rival submissions the question for
determination is as to whether the Deputy Commissioner, A.R.,
Suroliya gave prior approval on 9th of June, 1994 or 11th of
August, 1994 for recording the first information report as
H contemplated under Section 20-A(1) of TADA and in case it
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v.
1051
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
is found on facts that no such approval was granted, the effect
A
thereof on the conviction of the accused. Further, the effect of
approval by the Additional Chief Secretary, Home Department
on 15th of June, 1994 is also required to be gone into.
17. To prove prior approval by the Deputy Commissioner
8
before the lodging of the first information report, the prosecution
has mainly relied on the evidence of the Inspector of Police U.T.
Brahmbhatt, PW-10 and Deputy Commissioner A.R. Suroliya,
PW-65. Xerox copy of the approval (Exh. 775)has also been
brought on record to establish that. It is not in dispute that
C
officer of the rank of Deputy Commissioner is equivalent to
District Superintendent of Police. U.T. Brahmbhatt has stated
in his evidence that "Mr. Suroliya passed an order, sanctioned
the same and an endorsement is also made regarding that".
This witness has been subjected to cross-examination and in
the cross-examination he has admitted that the letter asking for
D
approval to investigate and the report under Section 157 of the
Code of Criminal Procedure (hereinafter referred to as 'the
Code') has been lost while producing the same in the Supreme
Court. A.R. Suroliya, PW-65, in his evidence has supported
the case of the prosecution regarding prior approval. While
E
explaining the absence of the original approval, this witness has
stated in his evidence that he had gone to the Supreme Court
for hearing of the application filed by the accused Yusuf Laplap
and handed over the original papers to the senior counsel.
According to him, the senior counsel told him that after
F
producing the necessary papers before the Supreme Court, the
original papers would be sent back but it has not come and
despite efforts and inquiry, it could not be traced out. According
to his evidence "as the original letter of approval thereof is not
found" the xerox copy thereof was produced. It was marked as
G
Exh.775. In the cross-examination, he reiterated that he had
gone to the Supreme Court along with original approval letter
and in the bail application of accused Yusuf Laplap, the said
approval was produced. He feigned ignorance as to whether
entry was made into outward register regarding approval and
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SUPREME COURT REPORTS
(2012) 12 S.C.R.
·A denied suggestion that he did not receive any proposal for
approval nor granted the same and with a view to see that the
case does not fall, he had deposed falsely regarding approval.
In his cross-examination he has stated as follows:
B
"I do not know whether there is any such paper in my office
or not for grant of approval for which I have deposed."
18. The Designated Court accepted the case of the
prosecution and held that prior approval was granted by the
Deputy Commissioner under Section 20-A(1) of TADA. While
C doing so, the Designated Court observed as follows:
" ... The original documents were sent to the honorable
Supreme Court for the purpose of producing the same in
court in connection with the same petition and thereafter
D
the same have been misplaced or lost.. . ."
19. It further observed as follows:
" .... On receiving certain information from Abdul Wahab
and Yusuf Laplap Mr. Brahmbhatt lodged the FIR against
E
seven accused persons and it was sent for the approval
of DCP and on getting the approval under section 20-A(1).
the offence was registered under the TADA Act.
Thereafter on perusal of the deposition, it becomes clear
that there was total compliance of Section 20-A(1) of the
F
TADA Act before lodging the FIR and on getting the
approval from DCP the offence was registered.
20. Having given our anxious consideration to the facts of
the present case and the evidence on record, we are of the
opinion that the case of the prosecution that the Deputy
G Commissioner granted approval under Section 20-A(1) of
TADA before registration of the case is fit to be rejected. It is
interesting to note that the Deputy Commissioner AR. Suroliya
has categorically stated in his evidence that he had gone to the
Supreme Court with original records, which included the first
H
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v.
1053
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
information report, on which he had granted approval and
A
handed over the same to the counsel. Thereafter, according
to him, the said original first information report got lost or
misplaced. It has been brought to our notice that accused Yusuf
Laplap had not come to this Court for grant of bail and,
therefore, the Deputy Commissioner had no occasion to come
B
with the original record in connection with that case. True it is
that some of the accused persons in the case had approached
this Court for various reliefs, but in the face of the evidence of
the Deputy Commissioner A.R. Suroliya that he came along
with the record in connection with the case of the accused Yusuf c
Laplap is fit to be rejected. There are various other reasons
also to reject this part of the prosecution story.
21. As stated earlier, charge-sheet in the case has been
filed in five stages. Further, report under Section 157 of the
Code has been filed and all these acts had taken place before
D
the alleged loss of the document in the Supreme Court and,
therefore, should have formed part of the charge-sheet and the
report given under Section 157 of the Code. It has also come
on record that later on, the Assistant Commissioner of Police,
Crime Branch had sought for approval of the Deputy
E
Commissioner which he granted on 11th of August, 1994.