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Wednesday, February 1, 2017

the entire proceedings are vitiated due to no prior approval being taken from the District Superintendent of Police under Section 20A (1) of the TADA Act before registration of First Information Report. He further submitted that 192 witnesses have been cited out of whom only 25 witnesses have been examined so far and there is no likelihood of the completion of the trial in the near future. He also stated that many of the other accused have either been released on bail or had the benefit of the proceedings against them being quashed. He pleaded for grant of bail in view of his long incarceration for more than 12 years. To buttress his submission the counsel relied upon the judgments of this Court in Izharul Haq Abdul Hamid Shaikh v. State of Gujarat (2009) 5 SCC 283, Ashrafkhan v. State of Gujarat (2012) 11 SCC 606 and Hussein Ghadially v. State of Gujarat (2014) 8 SCC 425.=Though the Appellant is involved in serious offences and has absconded for a period of 10 years before he was arrested in 2004, we see no reason to confine him to jail as he has already suffered more than 12 years in custody and the trial may not be completed in the near future. Taking note of the above, we grant relief of bail to the Appellant subject to the following conditions:

                                                         [pic]Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL No. 1650 of 2011

UMARMIA ALIAS MAMUMIA
                                                           .... Appellant(s)
                                   Versus
STATE OF GUJARAT
                                                                ….Respondent

                               J U D G M E N T


L. NAGESWARA RAO, J.
      This  Appeal  is  filed  against  the  Judgment  dated  16.06.2010  in
Criminal Misc Sr. No.44 of 2010 by  which  the  Court  of  Designated  Judge
(TADA) at Porbandar (hereinafter referred  to  as  the  ‘Designated  Court’)
rejected the bail application filed  by  the  Appellant  under  Section  439
Cr.P.C. and Section 20  (8)  of  the  Terrorist  and  Disruptive  Activities
(Prevention) Act, 1987 (hereinafter referred to as the ‘Act’).
Crime No. I-43  of  1994  was  registered  under  Section  154  Cr.P.C.  for
offences committed under Section 121, 121A, 122, 123, 124B  r/w  34  of  the
Indian Penal Code, Section 25 (1A),  (1B)  and  25(1AA)  of  the  Arms  Act,
Sections 9-B of the Explosives Act, Sections 3, 4, 5 and 6 of the  Explosive
Substances Act and Sections 3, 4 and 5 of the Act.   The  statement  of  one
Suresh  recorded  under  Section  108  of  the  Customs  Act  revealed  that
explosive substances, powder RDX boxes, bags containing fire arms,  45  bags
of weapons, 15 boxes of RDX and 225 pieces of silver  ingots  were  smuggled
into the country  and  taken  to  Zaroli  and  Dhanoli  villages  of  Valsad
District.  The first charge-sheet was filed on 12.01.1995 in which the  name
of the Appellant is found at serial No.1 in  column  No.2  which  refers  to
persons who were absconding.  The 11th supplementary Charge-sheet was  filed
on 06.06.2005 wherein it was mentioned the Appellant was  arrested  at  1700
hrs on 10.12.2004.
The involvement of the Appellant in the crime was set out in detail  in  the
charge-sheet dated 06.06.2005. The Appellant conspired with Iqbal A  Hussain
and others sent by Mustapha Majnu Sheikh from Mumbai  at  his  residence  at
Memonwada, Porbandar and finalized the plan to  unload  the  ammunition.  It
was mentioned, inter alia, that the Appellant was present  at  the  time  of
delivery of RDX, weapons etc.  and  he  supervised  the  transport  of  some
weapons to his house. The rest of the material was loaded  in  three  tempos
and was sent to Ghanoli village.  Thereafter  the  Appellant  fled  away  to
Dubai.
On 17.12.2010 the Appellant filed Criminal Misc. Application No.44  of  2010
in TADA case No. 3 of 2005  in  the  Designated  Court  seeking  bail  under
Section 439 Cr.P.C. read with Section 20 (8) of Act.  The  Designated  Court
by its judgment dated 16.06.2010 dismissed the  bail  application  and  held
that  on  perusal  of  the  material  on  record,  a  prima  facie  case  of
Appellant’s involvement in serious offences under TADA  was  made  out.  The
Designated Court refused to release the Appellant on  bail  after  examining
his confessional statement recorded under Section  15(2)  TADA.   The  Court
also took note of the fact that the Appellant absconded for  10  years  from
08.03.1994 to 10.12.2004. Likelihood of tampering of evidence and  witnesses
being influenced were also grounds which were taken  into  consideration  by
the Designated  Court  to  deny  bail.   The  Appellant  filed  this  appeal
challenging the validity of  the  said  judgment  dated  16.06.2010  of  the
Designated Court.
Mr. Sushil  Kumar,  learned  Senior  Counsel  appearing  for  the  Appellant
submitted that the entire proceedings are vitiated due to no prior  approval
being taken from the District Superintendent of  Police  under  Section  20A
(1) of the TADA Act before registration of  First  Information  Report.   He
further submitted that 192 witnesses have been cited out  of  whom  only  25
witnesses have been examined so far  and  there  is  no  likelihood  of  the
completion of the trial in the near future.  He also  stated  that  many  of
the other accused have either been released on bail or had  the  benefit  of
the proceedings against them being quashed.   He pleaded for grant  of  bail
in view of his long incarceration for more than 12 years.  To  buttress  his
submission the counsel relied upon the judgments of this  Court  in  Izharul
Haq Abdul Hamid Shaikh v. State of Gujarat (2009) 5 SCC 283,  Ashrafkhan  v.
State of Gujarat (2012) 11  SCC  606  and  Hussein  Ghadially  v.  State  of
Gujarat (2014) 8 SCC 425.
Mr. Yashank Adhyaru, learned Senior Counsel appearing  for  the  Respondent-
State of Gujarat made an attempt to convince us that sanction was, in  fact,
granted under Section 20A (1).  According to him, there was an error in  the
order dated 08.04.1994 which  mentioned  that  approval  was  granted  under
Section 20A (2).  He submitted that a plain reading of the said order  would
disclose that the approval was actually granted under Section 20A  (1).   He
urged that the  Appellant  is  the  master  mind  of  the  conspiracy  which
resulted in smuggling of large scale arms and ammunition into  the  country.
 He submitted that there  is  every  likelihood  of  the  Appellant  fleeing
justice, if released on bail.
Section 20-A of the Act 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.”

In Izharul Haq Abdul Hamid Shaikh’s case (Supra) this Court granted bail  to
the Appellant therein.  In the said case also  the  FIR  was  registered  on
08.03.1994 relating to the smuggling of arms and  ammunition  at  Porbandar.
This Court held that prior approval under Section 20A (1) of the Act  was  a
sine qua non for recording  of  First  Information  Report.   The  Appellant
therein was granted relief  on  the  ground  that  prior  approval  was  not
obtained before recording the FIR.  The submission of Mr. Sushil Kumar,  who
appeared for the Appellant in that case, that prior approval  under  Section
20A (1) was not accorded by the competent  authority  was  accepted  by  Mr.
Adhyaru who appeared for the State of Gujarat in  that  case.   Mr.Adhyaru’s
submission in Izharul Haq Abdul Hamid Shaikh’s case that  though  the  order
of approval wrongly mentioned Section 20A(2) it was actually an order  under
Section 20A(1), was not accepted.  Mr. Adhyaru raised the same  point  again
before us relying on  order  dated  08.03.1994.   We  permitted  the  Senior
Counsel to read out the order dated 08.03.1994  but  we  are  not  convinced
that it was passed under Section 20A(1) and not under Section 20A(2).
It is no more res integra that infraction of Section         20A (1) of  the
TADA Act would vitiate the entire proceedings and  result  in  acquittal  of
the accused for offences under the  Act.   (See:  Anirudhsinhji  Karansinhji
Jadeja v. State of Gujarat, (1995) 5 SCC 302;  Prakash  Kumar  v.  State  of
Gujarat, (2005) 2 SCC 409; Izharul  Haq  Abdul  Hamid  Shaikh  v.  State  of
Gujarat, (2009) 5 SCC 283; Ashrafkhan v. State of  Gujarat,  (2012)  11  SCC
606; Hussein Ghadially v. State of Gujarat, (2014) 8 SCC 425)

After considering the submissions of both sides, we are of the opinion  that
the Appellant is entitled to be released on bail for the following reasons:

The prior approval required under Section 20A (1) of the TADA  Act  was  not
taken from  the  District  Superintendent  of  Police  before  the  FIR  was
recorded.
Admittedly, the Appellant had been suffering incarceration for more than  12
years.
Only 25 out of 192 witnesses have been examined so far.
There is no likelihood of the completion of trial in the near future.
Though there is a confessional statement of  the  Appellant  recorded  under
Section 15 of the TADA, the same cannot be looked into by us in view of  the
violation of Section 20A (1) of the TADA Act.


This Court has consistently recognised  the  right  of  the  accused  for  a
speedy trial. Delay in criminal trial has been held to be  in  violation  of
the right guaranteed to an accused under Article 21 of the  Constitution  of
India. (See: Supreme Court Legal Aid Committee v. Union of India,  (1994)  6
SCC 731; Shaheen Welfare  Assn.  v.  Union  of  India,  (1996)  2  SCC  616)
Accused, even in cases under TADA, have been released on bail on the  ground
that they have been in jail for a long period  of  time  and  there  was  no
likelihood of the completion of the trial at the earliest.   (See:  Paramjit
Singh v. State (NCT of Delhi), (1999) 9  SCC  252  and  Babba  v.  State  of
Maharashtra, (2005) 11 SCC 569).



Though the Appellant is involved in serious offences and has  absconded  for
a period of 10 years before he was arrested in 2004, we  see  no  reason  to
confine him to jail as he  has  already  suffered  more  than  12  years  in
custody and the trial may not be completed in the near future.  Taking  note
of the above, we grant relief of  bail  to  the  Appellant  subject  to  the
following conditions:

The Appellant will furnish a bail bond in the sum of   Rs.1 lakh  (One  Lakh
only) with one surety for a similar amount.

The Appellant will reside at Porbandar and report  daily  to  the  City  ‘B’
Division Police Station, Porbandar at  6:00  PM.  He  shall  not  leave  the
territory of Porbandar.

If the Appellant is required to attend any Court outside Porbandar the  same
may be done through video conferencing to be organized  by  the  State.   If
video conferencing cannot be arranged the Appellant will be produced  before
any court, if necessary, through Escort by the Police.

The Passport of the Appellant shall be  surrendered  before  the  Designated
Court.

The Appellant shall not indulge in tampering of evidence and influencing  of
witnesses.

The State is at liberty to move for cancellation of bail, if  the  Appellant
is found to be tampering with the  evidence  or  causing  hindrance  to  the
progress of the trial.



As the case pertains to the year 1993, the Designated Court is requested  to
expedite  and  complete  the  trial  at  the  earliest.   With   the   above
directions, the Appeal is allowed.




.........................................J
       [S. A. BOBDE]



                   ...……................................J
                                                   [L. NAGESWARA RAO]

New Delhi,
February 01, 2017

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