[pic]Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1702 of 2011
UMARMIYA ISMAILMIYA SAIYED @ MAMUMIYA PANJU MIYA.
.... Appellant
Versus
STATE OF GUJARAT
….Respondent
J U D G M E N T
L. NAGESWARA RAO, J.
The Court of Designated Judge (TADA) at Jamnagar (hereinafter
referred to as the ‘Designated Court’) dismissed the bail application of
the Appellant by a Judgment dated 31.08.2010 aggrieved by which the
Appellant has filed this Criminal Appeal.
FIR No.I-151 of 1993 was registered in Jamnagar City “B” Division Police
Station under Sections 3, 4 and 5 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987(hereinafter referred to as ‘Act’) apart
from the offences punishable under Section 120 B, 121, 122 B, 123 r/w 34 of
IPC, Sections Section 25 (1A), (1B) and 25(1AA) of the Arms Act and Section
9-B of the Explosives Act, Sections 3, 4, 5, 6 and 9 of the Explosive
Substances Act.
The case of the prosecution is that after demolition of the Babri Masjid in
the year 1992, a conspiracy was hatched at Dubai for smuggling of
contraband goods, arms and explosives to the sea cost of Gosa Bara near
Porbandar. Harun Adam Sanghar, Usman Umar Koreja and others were arrested
on the basis of information received by the police. On the basis of their
statements, FIR was registered in Jamnagar City “B” Division Police Station
vide crime register No.151 of 1993. The Appellant masterminded the
conspiracy for smuggling a large quantity of arms and ammunition. After
supervising the landing of the ammunition, the Appellant absconded and was
arrested on 12.01.2005.
The Appellant filed Criminal Misc (Bail) application No. 380 of 2010 on the
ground that a prima facie case was not made out against him and prior
approval was not taken from the District Superintendent of Police under
Section 20A (1) of the Act which vitiated the entire proceedings. The
Appellant submitted before the Designated Court that a co-accused Usman
Gani Noor Mohamad Merchant alias Munna was granted bail on 13.03.1996 on
the ground of violation of Section 20A (1) of the Act, which was confirmed
by this Court by an order dated 30.04.1996 in SLP(Crl.) No. 981/96.
The Designated Court dismissed the bail application by an order dated
31.08.2010 on the ground that the Appellant was involved in serious
offences and his enlargement on bail would be detrimental to the interest
of the society.
The principal contention of Mr. Sushil Kumar, learned Senior Counsel,
appearing for the Appellant is that no prior approval of the District
Superintendent of Police was taken under Section 20A (1) of the TADA Act
before recording the FIR. He 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. The Counsel further submitted that the
Appellant is entitled to be released on bail. He further submitted that
the FIR was registered on 16.07.1993 and after a lapse of more than 23
years charges have not been framed till date.
Mr.Yashank Adhyaru, learned Senior Counsel appearing for the Respondent-
State of Gujarat submitted that the Appellant is not entitled for being
released on bail in view of his involvement in serious offences under TADA,
IPC, Arms Act, Explosives Act and Explosive Substances Act. He further
submitted that the Appellant absconded for a period of 10 years and in the
event of his being released on bail, there is every likelihood of his
fleeing from justice. He also expressed his apprehension that the
Appellant would indulge in tampering with the evidence and witnesses which
would result in obstruction of justice. Mr.Adhyaru justified the delay in
the framing of charges on the ground that the record has been lying in this
Court for the past five years.
We have considered the submissions made by the counsels appearing for the
parties. As per the law declared by this Court, Section 20A is mandatory
and any violation of the procedure prescribed therein would vitiate the
entire proceedings with respect to the TADA offences. This Court in
Izharul Haq Abdul Hamid Shaikh v. State of Gujarat reported in (2009) 5 SCC
283 released the Appellant therein on bail on the ground that Section 20A
(1) was violated.
Without expressing any opinion on the merits of the matter, we are of the
opinion that the Appellant is entitled to be released on bail only on the
ground that the FIR was registered on 16.07.1993 in violation of the
procedure prescribed under Section 20A (1) of the TADA Act. There is no
dispute about the fact that the Appellant has been in jail for more than 12
years and charges are not framed till date which itself is a ground for
bail. (See: Sanghian Pandian Rajkumar v C.B.I (2014)4 SCALE 74; Bal Krishna
Pandey Alias Vidur V State of U.P. (2003)12SCC186; Dipak Shubhashchandra
Mehta v. CBI, (2012) 4 SCC 134)
Taking note of the above and the fact that the Appellant has been granted
bail by this court in Criminal Appeal No. 1650 of 2011, 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 6:00PM. He shall not leave the
territory of Porbandar.
Whenever the Appellant is required to attend proceedings before the
Designated Court for the purposes of Special TADA case No. 2 of 2005
arising from C.R. No.II-151/93 received at Jamnagar City “B” Division
Police Station dated 16.07.93, the Appellant’s attendance may be secured
through video conferencing which has to be organized by the State. If
video conferencing cannot be arranged, the Appellant will be produced
before the Designated Court or any other court, if necessary, through
Escort by the Police.
The Passport of the Appellant shall be surrendered before the Court of
Designated Judge (TADA) at Porbandar.
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.
The Registry is directed to transmit the record to the Designated Court
immediately. The Designated Court is directed to frame charges at the
earliest and dispose of the matter expeditiously. With the above
directions, the Appeal is allowed.
........................................J
[S. A. BOBDE]
..……................................J
[L. NAGESWARA RAO]
New Delhi,
February 01, 2017
-----------------------
6
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1702 of 2011
UMARMIYA ISMAILMIYA SAIYED @ MAMUMIYA PANJU MIYA.
.... Appellant
Versus
STATE OF GUJARAT
….Respondent
J U D G M E N T
L. NAGESWARA RAO, J.
The Court of Designated Judge (TADA) at Jamnagar (hereinafter
referred to as the ‘Designated Court’) dismissed the bail application of
the Appellant by a Judgment dated 31.08.2010 aggrieved by which the
Appellant has filed this Criminal Appeal.
FIR No.I-151 of 1993 was registered in Jamnagar City “B” Division Police
Station under Sections 3, 4 and 5 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987(hereinafter referred to as ‘Act’) apart
from the offences punishable under Section 120 B, 121, 122 B, 123 r/w 34 of
IPC, Sections Section 25 (1A), (1B) and 25(1AA) of the Arms Act and Section
9-B of the Explosives Act, Sections 3, 4, 5, 6 and 9 of the Explosive
Substances Act.
The case of the prosecution is that after demolition of the Babri Masjid in
the year 1992, a conspiracy was hatched at Dubai for smuggling of
contraband goods, arms and explosives to the sea cost of Gosa Bara near
Porbandar. Harun Adam Sanghar, Usman Umar Koreja and others were arrested
on the basis of information received by the police. On the basis of their
statements, FIR was registered in Jamnagar City “B” Division Police Station
vide crime register No.151 of 1993. The Appellant masterminded the
conspiracy for smuggling a large quantity of arms and ammunition. After
supervising the landing of the ammunition, the Appellant absconded and was
arrested on 12.01.2005.
The Appellant filed Criminal Misc (Bail) application No. 380 of 2010 on the
ground that a prima facie case was not made out against him and prior
approval was not taken from the District Superintendent of Police under
Section 20A (1) of the Act which vitiated the entire proceedings. The
Appellant submitted before the Designated Court that a co-accused Usman
Gani Noor Mohamad Merchant alias Munna was granted bail on 13.03.1996 on
the ground of violation of Section 20A (1) of the Act, which was confirmed
by this Court by an order dated 30.04.1996 in SLP(Crl.) No. 981/96.
The Designated Court dismissed the bail application by an order dated
31.08.2010 on the ground that the Appellant was involved in serious
offences and his enlargement on bail would be detrimental to the interest
of the society.
The principal contention of Mr. Sushil Kumar, learned Senior Counsel,
appearing for the Appellant is that no prior approval of the District
Superintendent of Police was taken under Section 20A (1) of the TADA Act
before recording the FIR. He 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. The Counsel further submitted that the
Appellant is entitled to be released on bail. He further submitted that
the FIR was registered on 16.07.1993 and after a lapse of more than 23
years charges have not been framed till date.
Mr.Yashank Adhyaru, learned Senior Counsel appearing for the Respondent-
State of Gujarat submitted that the Appellant is not entitled for being
released on bail in view of his involvement in serious offences under TADA,
IPC, Arms Act, Explosives Act and Explosive Substances Act. He further
submitted that the Appellant absconded for a period of 10 years and in the
event of his being released on bail, there is every likelihood of his
fleeing from justice. He also expressed his apprehension that the
Appellant would indulge in tampering with the evidence and witnesses which
would result in obstruction of justice. Mr.Adhyaru justified the delay in
the framing of charges on the ground that the record has been lying in this
Court for the past five years.
We have considered the submissions made by the counsels appearing for the
parties. As per the law declared by this Court, Section 20A is mandatory
and any violation of the procedure prescribed therein would vitiate the
entire proceedings with respect to the TADA offences. This Court in
Izharul Haq Abdul Hamid Shaikh v. State of Gujarat reported in (2009) 5 SCC
283 released the Appellant therein on bail on the ground that Section 20A
(1) was violated.
Without expressing any opinion on the merits of the matter, we are of the
opinion that the Appellant is entitled to be released on bail only on the
ground that the FIR was registered on 16.07.1993 in violation of the
procedure prescribed under Section 20A (1) of the TADA Act. There is no
dispute about the fact that the Appellant has been in jail for more than 12
years and charges are not framed till date which itself is a ground for
bail. (See: Sanghian Pandian Rajkumar v C.B.I (2014)4 SCALE 74; Bal Krishna
Pandey Alias Vidur V State of U.P. (2003)12SCC186; Dipak Shubhashchandra
Mehta v. CBI, (2012) 4 SCC 134)
Taking note of the above and the fact that the Appellant has been granted
bail by this court in Criminal Appeal No. 1650 of 2011, 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 6:00PM. He shall not leave the
territory of Porbandar.
Whenever the Appellant is required to attend proceedings before the
Designated Court for the purposes of Special TADA case No. 2 of 2005
arising from C.R. No.II-151/93 received at Jamnagar City “B” Division
Police Station dated 16.07.93, the Appellant’s attendance may be secured
through video conferencing which has to be organized by the State. If
video conferencing cannot be arranged, the Appellant will be produced
before the Designated Court or any other court, if necessary, through
Escort by the Police.
The Passport of the Appellant shall be surrendered before the Court of
Designated Judge (TADA) at Porbandar.
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.
The Registry is directed to transmit the record to the Designated Court
immediately. The Designated Court is directed to frame charges at the
earliest and dispose of the matter expeditiously. With the above
directions, the Appeal is allowed.
........................................J
[S. A. BOBDE]
..……................................J
[L. NAGESWARA RAO]
New Delhi,
February 01, 2017
-----------------------
6
