Criminal Appeal No. 482 of 2002 and 762-765 of 2002. Case: 1. Ashrafkhan @ Babu Munnekhan Pathan, 2. State of Gujarat Vs 1. State of Gujarat, [Alongwith Criminal Appeal Nos. 486-487 of 2002], 2. Yusufkhan @ Laplap Khudadattkhan Pathan and Ors., [Alongwith Criminal Appeal Nos. 766-768 of 2002]. Supreme Court

Case Number:Criminal Appeal No. 482 of 2002 and 762-765 of 2002
Party Name:1. Ashrafkhan @ Babu Munnekhan Pathan, 2. State of Gujarat Vs 1. State of Gujarat, [Alongwith Criminal Appeal Nos. 486-487 of 2002], 2. Yusufkhan @ Laplap Khudadattkhan Pathan and Ors., [Alongwith Criminal Appeal Nos. 766-768 of 2002]
Counsel:For Appellant: Sushil Kumar, Ranjit Kumar, Sr. Advs., Sanjay Jain, Afshan P., Vinay Arora and Vimal Chandra S. Dave, Advs. and For Respondents: Yashank Adhyaru, Sr. Adv., Pinky Behra, Nandini Gupta, Advs. for Hemantika Wahi, Adv., Kamini Jaiswal, Garvesh Kabra (A.C.), Pooja Kabra, Abhishek Jaju, Nikita Kabra Jaju, E.C. Agrawala, V. Anantharaman...
Judges:H.L. Dattu and Chandramauli Kumar Prasad, JJ.
Issue:Terrorist and Disruptive Activities (Prevention) Act - Sections 3, 4, 5, 12(1), 12(2), 14, 14(1), 14(3), 18, 20A, 20A(1), 20A(2); Terrorist and Disruptive Activities (Prevention) Amendment Act, 1993 - Section 9; Arms Act - Sections 7, 25(1), 25(1A); Explosive Substances Act - Sections 4, 5, 6; Customs Act - Section 135; Bombay Police Act - ...
Citation:2013 (1) ACR 921 (SC), AIR 2013 SC 217, 2013 CriLJ 226, 2013 (2) GLR 1364, JT 2012 (9) SC 661, 2012 (5) KarLJ 353, 2012 MLJ 403 (Crl), 2012 (9) SCALE 413, 2012 (11) SCC 606
Judgement Date:September 26, 2012
Court:Supreme Court
 
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Judgment:

Chandramauli Kumar Prasad, J.

  1. These appeals have been filed against the judgment and order dated 31st of January, 2002 passed by Additional Designated Judge, Court 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 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 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 delivered those arms and explosives to accused Imtiyaz 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 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 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 the Crime Branch Police Station Under Section 120B of the Indian Penal Code, Section 3 & 5 of Terrorist 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 the Explosive Substances Act against seven accused persons1.

  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. 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. 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 of cartridges, 99 bombs, 110 fuse pins and 110 magazines 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 or facilitating transportation of those weapons were charge-sheeted. 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 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 23rd of May, 1995 against 2 accused persons. Investigation did not end there and third4, fourth5 and fifth6 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.

  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. However, Accused No. 57 namely, Mohmad Harun @ Munna @ 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 Shaikh, Accused No. 35, Ikbal 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.

  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. 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 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 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 charges leveled against them.

  9. Those found guilty have preferred Criminal Appeal No. 482 of 2002 (Ashrafkhan @ Babu Munnekhan Pathan and Anr. v. State of Gujarat) and Criminal Appeal Nos. 486-487 of 2002 (Yusufkhan @ Laplap Khuddadkhan Pathan and Ors. v. State of Gujarat). State of Gujarat, aggrieved by the inadequacy of sentence, preferred Criminal Appeal Nos. 762-765 of 2002 (State of Gujarat v. Yusufkhan @ Laplap Khudadattkhan Pathan and Ors.) and also preferred Criminal Appeal Nos. 766-768 of 2002 (State of Gujarat v. Abdul Khurdush Abdul Gani Shaikh and Ors.) against acquittal.

  10. As all these appeals arise out of the same judgment, they were heard together and are being disposed of by this common judgment.

  11. We have heard Mr. Sushil Kumar and Mr. Ranjit Kumar learned Senior Counsel, Mr. Garvesh Kabra, learned amicus 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.

  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 for approval by the Deputy Commissioner Under Section 20-A(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 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. 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 of TADA irrespective of absence of compliance of Section 20-A(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 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 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 contemplated Under Section...

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