Whether the accused are entitled for discharge due to noncompliance of Section 20A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as ‘TADA Act”) ?.
As pointed out by us above, the situation may be different where, to give an example, the police official finds a dead body, sees that a murder has taken place, apprehends a person, who is
running away after committing the murder and from that person a prohibited arm is recovered in a notified area. In such a situation, the main offence is the offence of murder and the
offence of carrying a prohibited weapon in a notified area is the secondary offence under TADA Act. Here, the police official can record the information and arrest the person for committing an offence under Indian Penal Code,1860 but before proceeding under TADA Act he will have to take sanction under Section 20 A(1) of TADA Act.
In view of the above, the appeal is allowed, the order of the Designated TADA Court is set aside and the appellants are discharged from the offences under TADA Act but they may be proceeded against under other provisions of law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 1692 OF 2009
EBHA ARJUN JADEJA & ORS. …APPELLANT(S)
Versus
THE STATE OF GUJARAT …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. This appeal by the accused is directed against the order
passed by the Designated TADA Court whereby the application
filed by the accused that they should be discharged due to noncompliance of Section 20A(1) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter referred to as ‘TADA
Act”) was dismissed.
2. Briefly stated the facts of the case are that appellant no.
1/accused no. 1, Ebha Arjun Jadeja, was wanted in Crime No. II1
3/1994 registered against him under Section 25(1B)(a) and 27 of
the Arms Act, 1959 and under Section 3 and 5 of TADA Act etc.
3. The prosecution version is that on 10.04.1995, when Police
Inspector C.J. Singh along with some other police personnel was
doing night round in Kutiyana and was trying to keep a secret
watch over bootleggers, he received some information that
appellant no. 1, who was absconding in Crime No. II3/1994, was
coming to his village in a motor vehicle. The police inspector
arranged two witnesses and after preparing preliminary
panchnama, left Kutiyana in a Government jeep at about 1.00
1.15 a.m. They set up a naka and at about 2.45 a.m., one motor
vehicle came from the side of village Garej. The vehicle was
asked to stop and it stopped. Accused no. 1 was found sitting on
the driver’s seat. The police cordoned the motor vehicle in which
two other persons (appellant nos.2 and 3) were also sitting. All
these three persons were asked to get down and disclose their
identities. On making personal search of these three persons,
following recoveries were made:
2
S.
No.
Name of the accused Recoveries
1. Ebha Arjun Jadeja 1. One foreign made 9mm
beretta pistol and three live
cartridges and one fired
cartridge, valued at
Rs.1,50,150/.
2. One 32 bore foreign made
revolver and 5 live
cartridges, valued at Rs.
50,250/.
3. One fired cartridge
2. Bachchu Bhikha Mer One 315 bore country made
tamancha, valued at Rs. 3,000/.
3. Keshu Chana Mer One 12 bore country made
tamancha, valued at Rs. 2,000/.
4. The three accused persons could not produce any licence
and the aforesaid arms were seized. Though the first information
report (FIR) was recorded under the Arms Act, in the very same
FIR, the officer also recorded as follows:
“One 9 MM semi automatic prohibited foreign made pistol
and its cartridges loaded in it and Japan made revolver
and its cartridges in a loaded condition were found from
Mer Ebha Arjan. Out of which, it becomes from the smell
coming from the barrel of the pistol and box that the
same is used before some time for firing. From the two
persons with Jadeja Ebha Arjan, namely, Mer Bachu
Bhima and Mer Keshu Chana also, two country made
tamanchas are found and Mer Ebha Arjan is a gang
3
leader of gundas in Porbandar area and in that
circumstances, the persons as above are found in an
Ambassador car no.GJM8905 and it appears that they
are going to commit any terrorist activity and so all the
three persons were legally arrested for the offence under
Sections 25(1)(Ba), 27 of the Arms Act and Section 135 of
the Bombay Police Act and motor car Ambassador
no.GJM8905 valuing at Rs.100000/ was also seized in
this case.
Hence, it is my complaint against them for the offence
under Sections 25(1)(BA), 27 of the Arms Act and Section
135 of the Bombay Police Act. My witnesses are panchas
with me and the police personnel and others who are
found during the investigation.
The above persons were found in possession of weapons
and cartridges from out of the weapons and explosives
mentioned in Arms Rules 1962 Schedule1 Class1 and
Class3(A) Column no.2 and 3 in public area and hence,
as the offence under Section 5 of TADA Act is also made
out and so, arrangement is made for obtaining the
sanction of the District Superintendent of Police,
Porbandar under Section 20(A)(1) of the Act, by making a
report along with copies of the panchnama and F.I.R. and
identification sheets of the accused.”
5. Thereafter on the same day i.e. 10.04.1995, the District
Superintendent of Police granted sanction to add Section 5 of
TADA Act to the offences already registered. The grievance of the
appellants is that in terms of Section 20A(1) of TADA Act, no
information about commission of offence under the Act could
have been recorded without approval of the District
Superintendent of Police. Therefore, it is contended that the
entire initiation of the action wherein the Crime No.II.28/1995
4
was recorded without sanction of the District Superintendent of
Police, vitiates the entire proceedings in so far as they have been
initiated under TADA Act.
6. Section 20A of TADA Act reads as under:
“20A. 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 InspectorGeneral of Police, or as the case may be, the
Commissioner of Police.”
The language of the Section is mandatory in nature. It starts
with a nonobstante clause. It forbids the recording of
information about the commission of offence under TADA Act by
the police without prior approval of the District Superintendent of
Police.
7. The provisions of Section 20A(1) are mandatory. This issue
is no longer res integra. In Rangku Dutta @ Ranjan Kumar
Dutta v. State of Assam1
, this Court held that the provision,
which was couched in negative terms is mandatory in nature.
Relevant portion of the judgment reads as under:
1 (2011) 6 SCC 358
5
“18. It is obvious that Section 20A(1) is a mandatory
requirement of law. First, it starts with an overriding
clause and, thereafter, to emphasise its mandatory
nature, it uses the expression “No” after the overriding
clause. Whenever the intent of a statute is mandatory, it
is clothed with a negative command. Reference in this
connection can be made to G.P. Singh’s Principles of
Statutory Interpretation, 12th Edn.…”
8. Learned counsel for the appellants also placed reliance on
the judgment of this Court in Anirudhsinhji Karansinhji
Jadeja & Anr. v. State of Gujarat2
. In this case, the case was
registered against the accused initially under the Arms Act. The
District Superintendent of Police, instead of giving approval for
recording information, made a report to the Additional Chief
Secretary, seeking permission to proceed under TADA Act.
Thereafter, the Additional Chief Secretary, Home Department,
gave sanction to proceed under TADA Act. Dealing with the issue
whether Section 20A(1) was violated and whether the
prosecution was, therefore, vitiated, this Court has observed as
under:
“11. The case against the appellants originally was
registered on 1931995 under the Arms Act. The DSP
did not give any prior approval on his own to record any
information about the commission of an offence under
TADA. On the contrary, he made a report to the
Additional Chief Secretary and asked for permission to
proceed under TADA. Why? Was it because he was
reluctant to exercise jurisdiction vested in him by the
2 (1995) 5 SCC 302
6
provision of Section 20A(1)? This is a case of power
conferred upon one authority being really exercised by
another. If a statutory authority has been vested with
jurisdiction, he has to exercise it according to its own
discretion. If the discretion is exercised under the
direction or in compliance with some higher authority’s
instruction, then it will be a case of failure to exercise
discretion altogether. In other words, the discretion
vested in the DSP in this case by Section 20A(1) was not
exercised by the DSP at all.”
9. Similar matter came up before this Court in Ashrafkhan &
Anr. v. State of Gujarat3
. Dealing with the issue of the
consequences of noncompliance of Section 20A(1) of TADA Act,
this Court held as follows:
27. It is worth mentioning here that TADA, as originally
enacted, did not contain this provision and it has been
inserted by Section 9 of the Terrorist and Disruptive
Activities (Prevention) Amendment Act, 1993 (43 of 1993).
From a plain reading of the aforesaid provision it is
evident that no information about the commission of an
offence shall be recorded by the police without the prior
approval of the District Superintendent of Police. The
legislature, by using the negative word in Section 20A(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
construed. Negative words can rarely be held directory.
The plain, ordinary grammatical meaning affords the best
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
Superintendent of Police, on principle, cannot be said to
be directory in nature.”
3 (2012) 11 SCC 606
7
Thereafter, reference was made to the various judgments of this
Court and it was held as under:
“37. The plea of the State is that the Commissioner of
Police having granted the sanction under Section 20A(2)
of TADA, the conviction of the accused cannot be held to
be bad only on the ground of absence of approval under
Section 20A(1) by the Deputy Commissioner. As
observed earlier, 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 about the commission of an offence
under TADA shall be recorded by the police without the
prior approval of the District Superintendent of Police.
Not only this, further safeguard has been provided and
restriction has been put on the court not to take
cognizance of any offence without the 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. We have
not come across any principle nor are we inclined to lay
down that in a case in which different safeguards have
been provided at different stages, the adherence to the
last safeguard would only be relevant and breach of other
safeguards shall have no bearing on the trial. Therefore,
we reject the contention of the State that the accused
cannot assail their conviction on the ground of absence of
approval under Section 20A(1) of TADA by the Deputy
Commissioner, when the Commissioner of Police had
granted sanction under Section 20A(2) of TADA.”
The Court further held that noncompliance of Section 20A was
not a curable defect and could not be cured in terms of Section
465 of Code of Criminal Procedure, 1973 (CrPC).
8
10. Thereafter in Hussein Ghadially & Ors. v. State of
Gujarat4
, this Court dealing with Section 20A of TADA Act held
as follows:
“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…….”
Thereafter, reference was made to the various judgments of this
Court and it was held as under:
“29. The upshot of the above discussion, therefore, is
that the requirement of a mandatory statutory provision
having been violated, the trial and conviction of the
petitioners for offences under TADA must be held to have
been vitiated on that account…..”
11. The law is therefore, clear that if Section 20A(1) of TADA
Act is not complied with, then it vitiates the entire proceedings.
12. On behalf of the respondents, it is urged that in terms of
Section 154(1) of CrPC, an FIR has to be lodged whenever
information of commission of a cognizable offence is received. It
is also urged that Section 20A(1) of TADA Act bars the recording
of information but it does not specifically bar registration of the
FIR under the Arms Act. It is also urged that the District
4 (2014) 8 SCC 425
9
Superintendent of Police has to take a decision and, therefore,
some information has to be placed before him and then only he
can decide whether the sanction should be granted or not. As far
as the last submission is concerned, there can be no quarrel with
respect to the same. Obviously, information will have to be given
to the District Superintendent of Police but this information can
be in the nature of a communication specifically addressed to the
District Superintendent of Police and not in the nature of
information being recorded in the Register or Book meant for
recording of information under Section 154 of CrPC. We may
refer to the opening portion of Section 154 of CrPC, which reads
as under:
“154. Information in cognizable cases.(1) Every
information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every
such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving
it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf:
xxx xxx xxx”
13. The word ‘FIR’ is not used in Section 154 of CrPC, though it
is now commonly used with regard to information recorded under
10
Section 154. Therefore, whenever information relating to
commission of a cognizable offence is given orally then the officerincharge of the police station is bound to record that information
in a book to be kept for such offences in such form as the State
Government may prescribe in this behalf. What is prohibited
under Section 20A(1) of TADA Act is the recording of
information. We can presume that the Legislature while
introducing Section 20A(1) in TADA Act was also aware of the
provisions of Section 154 of CrPC. Therefore, the clearcut
intention was that no information of commission of an offence
under TADA Act would be recorded by the police under Section
154 of CrPC without sanction of the competent authority. The
reason why Section 20A(1) was introduced into TADA Act in the
year 1993 by amendment was that because the provisions of
TADA Act were very stringent, the Legislature felt that a senior
official should look into the matter to ensure that an offence
under TADA is made out and then grant sanction.
14. The bar under Section 20A(1) of TADA Act applies to
information recorded under Section 154 of CrPC. This bar will
not apply to a rukka or a communication sent by the police
11
official to the District Superintendent of Police seeking his
sanction. Otherwise, there could be no communication seeking
sanction, which could not have been the purpose of TADA Act.
15. Each case is to be decided on its own facts. The police
official, not being the District Superintendent of Police, may
receive information of commission of an offence and may reach
the scene of a crime. He can record the information on the spot
and then send a rukka to the police station for recording of FIR.
There may be cases of serious offences like murder, rape,
offences under Narcotic Drugs and Psychotropic Substances Act,
1985, Protection of Children from Sexual Offences (POCSO) Act,
2012 etc. where any delay in investigation is fatal. In these
cases, the police officer is entitled to record the information some
of which may indicate an offence under TADA Act, also because
nonrecording of the information with regard to the main offence
may delay the investigation and hamper proper investigation in
the matter. In such cases, while recording the information and
recording the FIR, for the offences falling under TADA Act, the
police officials concerned can approach the District
Superintendent of Police for sanction under Section 20A(1) of
12
TADA Act. The investigation in serious cases of murder, rape,
smuggling, narcotics, POCSO Act etc. cannot be delayed only
because TADA Act is also involved.
16. At the same time, where the information basically discloses
an offence under TADA Act and the other offence is more in the
nature of an ancillary offence then the information cannot be
recorded without complying with the provisions of Section 20A(1)
of TADA Act. This will have to be decided in the facts of each
case. In the case in hand, the only information recorded which
constitutes an offence is the recovery of the arms. The police
officials must have known that the area is a notified area under
TADA Act and, therefore, carrying such arms in a notified area is
itself an offence under TADA Act. It is true that this may be an
offence under the Arms Act also but the basic material for
constituting an offence both under the Arms Act and TADA Act is
identical i.e. recovery of prohibited arms in a notified area under
TADA Act. The evidence to convict the accused for crimes under
the Arms Act and TADA Act is also the same. There are no other
offences of rape, murder etc. in this case. Therefore, as far as the
present case is concerned, noncompliance of Section 20A(1) of
13
TADA Act is fatal and we have no other option but to discharge
the appellants in so far as the offence under TADA Act is
concerned. We make it clear that they can be proceeded against
under the provisions of the Arms Act.
17. As pointed out by us above, the situation may be different
where, to give an example, the police official finds a dead body,
sees that a murder has taken place, apprehends a person, who is
running away after committing the murder and from that person
a prohibited arm is recovered in a notified area. In such a
situation, the main offence is the offence of murder and the
offence of carrying a prohibited weapon in a notified area is the
secondary offence under TADA Act. Here, the police official can
record the information and arrest the person for committing an
offence under Indian Penal Code,1860 but before proceeding
under TADA Act he will have to take sanction under Section 20
A(1) of TADA Act.
18. In view of the above, the appeal is allowed, the order of the
Designated TADA Court is set aside and the appellants are
discharged from the offences under TADA Act but they may be
14
proceeded against under other provisions of law, if required.
Pending application(s), if any, stand(s) disposed of.
…………………………….J.
(Deepak Gupta)
……………………………..J.
(Aniruddha Bose)
New Delhi
October 16, 2019
15
As pointed out by us above, the situation may be different where, to give an example, the police official finds a dead body, sees that a murder has taken place, apprehends a person, who is
running away after committing the murder and from that person a prohibited arm is recovered in a notified area. In such a situation, the main offence is the offence of murder and the
offence of carrying a prohibited weapon in a notified area is the secondary offence under TADA Act. Here, the police official can record the information and arrest the person for committing an offence under Indian Penal Code,1860 but before proceeding under TADA Act he will have to take sanction under Section 20 A(1) of TADA Act.
In view of the above, the appeal is allowed, the order of the Designated TADA Court is set aside and the appellants are discharged from the offences under TADA Act but they may be proceeded against under other provisions of law.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 1692 OF 2009
EBHA ARJUN JADEJA & ORS. …APPELLANT(S)
Versus
THE STATE OF GUJARAT …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. This appeal by the accused is directed against the order
passed by the Designated TADA Court whereby the application
filed by the accused that they should be discharged due to noncompliance of Section 20A(1) of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter referred to as ‘TADA
Act”) was dismissed.
2. Briefly stated the facts of the case are that appellant no.
1/accused no. 1, Ebha Arjun Jadeja, was wanted in Crime No. II1
3/1994 registered against him under Section 25(1B)(a) and 27 of
the Arms Act, 1959 and under Section 3 and 5 of TADA Act etc.
3. The prosecution version is that on 10.04.1995, when Police
Inspector C.J. Singh along with some other police personnel was
doing night round in Kutiyana and was trying to keep a secret
watch over bootleggers, he received some information that
appellant no. 1, who was absconding in Crime No. II3/1994, was
coming to his village in a motor vehicle. The police inspector
arranged two witnesses and after preparing preliminary
panchnama, left Kutiyana in a Government jeep at about 1.00
1.15 a.m. They set up a naka and at about 2.45 a.m., one motor
vehicle came from the side of village Garej. The vehicle was
asked to stop and it stopped. Accused no. 1 was found sitting on
the driver’s seat. The police cordoned the motor vehicle in which
two other persons (appellant nos.2 and 3) were also sitting. All
these three persons were asked to get down and disclose their
identities. On making personal search of these three persons,
following recoveries were made:
2
S.
No.
Name of the accused Recoveries
1. Ebha Arjun Jadeja 1. One foreign made 9mm
beretta pistol and three live
cartridges and one fired
cartridge, valued at
Rs.1,50,150/.
2. One 32 bore foreign made
revolver and 5 live
cartridges, valued at Rs.
50,250/.
3. One fired cartridge
2. Bachchu Bhikha Mer One 315 bore country made
tamancha, valued at Rs. 3,000/.
3. Keshu Chana Mer One 12 bore country made
tamancha, valued at Rs. 2,000/.
4. The three accused persons could not produce any licence
and the aforesaid arms were seized. Though the first information
report (FIR) was recorded under the Arms Act, in the very same
FIR, the officer also recorded as follows:
“One 9 MM semi automatic prohibited foreign made pistol
and its cartridges loaded in it and Japan made revolver
and its cartridges in a loaded condition were found from
Mer Ebha Arjan. Out of which, it becomes from the smell
coming from the barrel of the pistol and box that the
same is used before some time for firing. From the two
persons with Jadeja Ebha Arjan, namely, Mer Bachu
Bhima and Mer Keshu Chana also, two country made
tamanchas are found and Mer Ebha Arjan is a gang
3
leader of gundas in Porbandar area and in that
circumstances, the persons as above are found in an
Ambassador car no.GJM8905 and it appears that they
are going to commit any terrorist activity and so all the
three persons were legally arrested for the offence under
Sections 25(1)(Ba), 27 of the Arms Act and Section 135 of
the Bombay Police Act and motor car Ambassador
no.GJM8905 valuing at Rs.100000/ was also seized in
this case.
Hence, it is my complaint against them for the offence
under Sections 25(1)(BA), 27 of the Arms Act and Section
135 of the Bombay Police Act. My witnesses are panchas
with me and the police personnel and others who are
found during the investigation.
The above persons were found in possession of weapons
and cartridges from out of the weapons and explosives
mentioned in Arms Rules 1962 Schedule1 Class1 and
Class3(A) Column no.2 and 3 in public area and hence,
as the offence under Section 5 of TADA Act is also made
out and so, arrangement is made for obtaining the
sanction of the District Superintendent of Police,
Porbandar under Section 20(A)(1) of the Act, by making a
report along with copies of the panchnama and F.I.R. and
identification sheets of the accused.”
5. Thereafter on the same day i.e. 10.04.1995, the District
Superintendent of Police granted sanction to add Section 5 of
TADA Act to the offences already registered. The grievance of the
appellants is that in terms of Section 20A(1) of TADA Act, no
information about commission of offence under the Act could
have been recorded without approval of the District
Superintendent of Police. Therefore, it is contended that the
entire initiation of the action wherein the Crime No.II.28/1995
4
was recorded without sanction of the District Superintendent of
Police, vitiates the entire proceedings in so far as they have been
initiated under TADA Act.
6. Section 20A of TADA Act reads as under:
“20A. 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 InspectorGeneral of Police, or as the case may be, the
Commissioner of Police.”
The language of the Section is mandatory in nature. It starts
with a nonobstante clause. It forbids the recording of
information about the commission of offence under TADA Act by
the police without prior approval of the District Superintendent of
Police.
7. The provisions of Section 20A(1) are mandatory. This issue
is no longer res integra. In Rangku Dutta @ Ranjan Kumar
Dutta v. State of Assam1
, this Court held that the provision,
which was couched in negative terms is mandatory in nature.
Relevant portion of the judgment reads as under:
1 (2011) 6 SCC 358
5
“18. It is obvious that Section 20A(1) is a mandatory
requirement of law. First, it starts with an overriding
clause and, thereafter, to emphasise its mandatory
nature, it uses the expression “No” after the overriding
clause. Whenever the intent of a statute is mandatory, it
is clothed with a negative command. Reference in this
connection can be made to G.P. Singh’s Principles of
Statutory Interpretation, 12th Edn.…”
8. Learned counsel for the appellants also placed reliance on
the judgment of this Court in Anirudhsinhji Karansinhji
Jadeja & Anr. v. State of Gujarat2
. In this case, the case was
registered against the accused initially under the Arms Act. The
District Superintendent of Police, instead of giving approval for
recording information, made a report to the Additional Chief
Secretary, seeking permission to proceed under TADA Act.
Thereafter, the Additional Chief Secretary, Home Department,
gave sanction to proceed under TADA Act. Dealing with the issue
whether Section 20A(1) was violated and whether the
prosecution was, therefore, vitiated, this Court has observed as
under:
“11. The case against the appellants originally was
registered on 1931995 under the Arms Act. The DSP
did not give any prior approval on his own to record any
information about the commission of an offence under
TADA. On the contrary, he made a report to the
Additional Chief Secretary and asked for permission to
proceed under TADA. Why? Was it because he was
reluctant to exercise jurisdiction vested in him by the
2 (1995) 5 SCC 302
6
provision of Section 20A(1)? This is a case of power
conferred upon one authority being really exercised by
another. If a statutory authority has been vested with
jurisdiction, he has to exercise it according to its own
discretion. If the discretion is exercised under the
direction or in compliance with some higher authority’s
instruction, then it will be a case of failure to exercise
discretion altogether. In other words, the discretion
vested in the DSP in this case by Section 20A(1) was not
exercised by the DSP at all.”
9. Similar matter came up before this Court in Ashrafkhan &
Anr. v. State of Gujarat3
. Dealing with the issue of the
consequences of noncompliance of Section 20A(1) of TADA Act,
this Court held as follows:
27. It is worth mentioning here that TADA, as originally
enacted, did not contain this provision and it has been
inserted by Section 9 of the Terrorist and Disruptive
Activities (Prevention) Amendment Act, 1993 (43 of 1993).
From a plain reading of the aforesaid provision it is
evident that no information about the commission of an
offence shall be recorded by the police without the prior
approval of the District Superintendent of Police. The
legislature, by using the negative word in Section 20A(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
construed. Negative words can rarely be held directory.
The plain, ordinary grammatical meaning affords the best
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
Superintendent of Police, on principle, cannot be said to
be directory in nature.”
3 (2012) 11 SCC 606
7
Thereafter, reference was made to the various judgments of this
Court and it was held as under:
“37. The plea of the State is that the Commissioner of
Police having granted the sanction under Section 20A(2)
of TADA, the conviction of the accused cannot be held to
be bad only on the ground of absence of approval under
Section 20A(1) by the Deputy Commissioner. As
observed earlier, 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 about the commission of an offence
under TADA shall be recorded by the police without the
prior approval of the District Superintendent of Police.
Not only this, further safeguard has been provided and
restriction has been put on the court not to take
cognizance of any offence without the 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. We have
not come across any principle nor are we inclined to lay
down that in a case in which different safeguards have
been provided at different stages, the adherence to the
last safeguard would only be relevant and breach of other
safeguards shall have no bearing on the trial. Therefore,
we reject the contention of the State that the accused
cannot assail their conviction on the ground of absence of
approval under Section 20A(1) of TADA by the Deputy
Commissioner, when the Commissioner of Police had
granted sanction under Section 20A(2) of TADA.”
The Court further held that noncompliance of Section 20A was
not a curable defect and could not be cured in terms of Section
465 of Code of Criminal Procedure, 1973 (CrPC).
8
10. Thereafter in Hussein Ghadially & Ors. v. State of
Gujarat4
, this Court dealing with Section 20A of TADA Act held
as follows:
“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…….”
Thereafter, reference was made to the various judgments of this
Court and it was held as under:
“29. The upshot of the above discussion, therefore, is
that the requirement of a mandatory statutory provision
having been violated, the trial and conviction of the
petitioners for offences under TADA must be held to have
been vitiated on that account…..”
11. The law is therefore, clear that if Section 20A(1) of TADA
Act is not complied with, then it vitiates the entire proceedings.
12. On behalf of the respondents, it is urged that in terms of
Section 154(1) of CrPC, an FIR has to be lodged whenever
information of commission of a cognizable offence is received. It
is also urged that Section 20A(1) of TADA Act bars the recording
of information but it does not specifically bar registration of the
FIR under the Arms Act. It is also urged that the District
4 (2014) 8 SCC 425
9
Superintendent of Police has to take a decision and, therefore,
some information has to be placed before him and then only he
can decide whether the sanction should be granted or not. As far
as the last submission is concerned, there can be no quarrel with
respect to the same. Obviously, information will have to be given
to the District Superintendent of Police but this information can
be in the nature of a communication specifically addressed to the
District Superintendent of Police and not in the nature of
information being recorded in the Register or Book meant for
recording of information under Section 154 of CrPC. We may
refer to the opening portion of Section 154 of CrPC, which reads
as under:
“154. Information in cognizable cases.(1) Every
information relating to the commission of a cognizable
offence, if given orally to an officer in charge of a police
station, shall be reduced to writing by him or under his
direction, and be read over to the informant; and every
such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving
it, and the substance thereof shall be entered in a book to
be kept by such officer in such form as the State
Government may prescribe in this behalf:
xxx xxx xxx”
13. The word ‘FIR’ is not used in Section 154 of CrPC, though it
is now commonly used with regard to information recorded under
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Section 154. Therefore, whenever information relating to
commission of a cognizable offence is given orally then the officerincharge of the police station is bound to record that information
in a book to be kept for such offences in such form as the State
Government may prescribe in this behalf. What is prohibited
under Section 20A(1) of TADA Act is the recording of
information. We can presume that the Legislature while
introducing Section 20A(1) in TADA Act was also aware of the
provisions of Section 154 of CrPC. Therefore, the clearcut
intention was that no information of commission of an offence
under TADA Act would be recorded by the police under Section
154 of CrPC without sanction of the competent authority. The
reason why Section 20A(1) was introduced into TADA Act in the
year 1993 by amendment was that because the provisions of
TADA Act were very stringent, the Legislature felt that a senior
official should look into the matter to ensure that an offence
under TADA is made out and then grant sanction.
14. The bar under Section 20A(1) of TADA Act applies to
information recorded under Section 154 of CrPC. This bar will
not apply to a rukka or a communication sent by the police
11
official to the District Superintendent of Police seeking his
sanction. Otherwise, there could be no communication seeking
sanction, which could not have been the purpose of TADA Act.
15. Each case is to be decided on its own facts. The police
official, not being the District Superintendent of Police, may
receive information of commission of an offence and may reach
the scene of a crime. He can record the information on the spot
and then send a rukka to the police station for recording of FIR.
There may be cases of serious offences like murder, rape,
offences under Narcotic Drugs and Psychotropic Substances Act,
1985, Protection of Children from Sexual Offences (POCSO) Act,
2012 etc. where any delay in investigation is fatal. In these
cases, the police officer is entitled to record the information some
of which may indicate an offence under TADA Act, also because
nonrecording of the information with regard to the main offence
may delay the investigation and hamper proper investigation in
the matter. In such cases, while recording the information and
recording the FIR, for the offences falling under TADA Act, the
police officials concerned can approach the District
Superintendent of Police for sanction under Section 20A(1) of
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TADA Act. The investigation in serious cases of murder, rape,
smuggling, narcotics, POCSO Act etc. cannot be delayed only
because TADA Act is also involved.
16. At the same time, where the information basically discloses
an offence under TADA Act and the other offence is more in the
nature of an ancillary offence then the information cannot be
recorded without complying with the provisions of Section 20A(1)
of TADA Act. This will have to be decided in the facts of each
case. In the case in hand, the only information recorded which
constitutes an offence is the recovery of the arms. The police
officials must have known that the area is a notified area under
TADA Act and, therefore, carrying such arms in a notified area is
itself an offence under TADA Act. It is true that this may be an
offence under the Arms Act also but the basic material for
constituting an offence both under the Arms Act and TADA Act is
identical i.e. recovery of prohibited arms in a notified area under
TADA Act. The evidence to convict the accused for crimes under
the Arms Act and TADA Act is also the same. There are no other
offences of rape, murder etc. in this case. Therefore, as far as the
present case is concerned, noncompliance of Section 20A(1) of
13
TADA Act is fatal and we have no other option but to discharge
the appellants in so far as the offence under TADA Act is
concerned. We make it clear that they can be proceeded against
under the provisions of the Arms Act.
17. As pointed out by us above, the situation may be different
where, to give an example, the police official finds a dead body,
sees that a murder has taken place, apprehends a person, who is
running away after committing the murder and from that person
a prohibited arm is recovered in a notified area. In such a
situation, the main offence is the offence of murder and the
offence of carrying a prohibited weapon in a notified area is the
secondary offence under TADA Act. Here, the police official can
record the information and arrest the person for committing an
offence under Indian Penal Code,1860 but before proceeding
under TADA Act he will have to take sanction under Section 20
A(1) of TADA Act.
18. In view of the above, the appeal is allowed, the order of the
Designated TADA Court is set aside and the appellants are
discharged from the offences under TADA Act but they may be
14
proceeded against under other provisions of law, if required.
Pending application(s), if any, stand(s) disposed of.
…………………………….J.
(Deepak Gupta)
……………………………..J.
(Aniruddha Bose)
New Delhi
October 16, 2019
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