Haq Abdul Hamid Shaikh & ANR. Vs. State of Gujarat  INSC 500 (6 March
APPELLATE JURISDICTION CRIMINAL APPEAL NO.811 OF 2008 Izharul Haq Abdul Hamid
Shaikh & Anr. ... Appellants Versus State of Gujarat ... Respondent WITH
Criminal Appeal No.813 of 2008 and Criminal Appeal No. of 2009 @ Criminal
Appeal D.No.23837 of 2008
Delay condoned in Criminal Appeal D.No.23837 of 2008.
three criminal appeals have been taken up together as the same questions of law
relating to the Terrorists and Disruptive Activities (Prevention) Act, 1987
(hereinafter referred to as 2 `TADA') regarding grant of bail are involved. All
these three appeals have been filed under Section 19 of TADA relating to
separate incidents which are alleged to have occurred in Porbandar and Valsad
in the State of Gujarat.
Criminal Appeal No.811 of 2008 has been filed by Izharul Haq Abdul
Hamid Shaikh and Amir Gulam Husein Bandukwala against the order passed by the
Designated Court, Porbandar, on 15th February, 2008 in Criminal Misc.
Application No.164 of 2007 in Special TADA Case No.6 of 2005 in respect of
offences alleged to have been committed under Sections 121, 121A, 122, 123.
120B, 34 IPC, Section 25(1) AB, AA of the Arms Act, Section 9-B of the
Explosive Substances Act read with Sections 3, 4, 5 and 6 of TADA.
The appellant No.1, Izharul Haq Abdul Hamid Shaikh has also filed
Criminal Appeal D.No.23837 of 2008 against order dated 9th April, 2008, passed
by the Designated TADA Court at Valsad in Criminal 3 Misc. Application No.68 of
2008 in Special TADA Case No.1 of 2005 in respect of charges similar to those
made against him in the Porbandar case.
Criminal Appeal No.813 of 2008 has been filed by one Jivan Raghu
Varli against an order dated 13th September, 2007, in Criminal Misc.
Application No.88 of 2007 on charges similar to those made against Izharul Haq
Abdul Hamid Shaikh.
In all the three appeals, the prayer for bail made on behalf of
the appellants under Section 439 Cr.P.C. and Section 20(8) of TADA has been
Mr. Sushil Kumar, learned Senior Advocate, appearing for the
appellants in Crl. Appeal No.811 of 2008 and Crl. Appeal D. No.23837 of 2008,
submitted that Izharul Haq Abdul Hamid Shaikh has been in custody since his
arrest on 29th April, 2005, i.e. for more than 3= years while the minimum
sentence provided in the TADA is 5 years and the 4 maximum is life sentence. He
urged that if the appellant was ultimately convicted and given minimum
sentence, he would have completed such sentence in custody by the time the
trial was concluded. Mr. Sushil Kumar submitted that of the other co-accused in
the Valsad case, twenty accused had been acquitted and it was observed in the
judgment of the learned Designated Judge that the prosecution had not been able
to prove its case beyond all reasonable doubt. Mr. Sushil Kumar also submitted
that the appeal against acquittal of the said twenty co-accused was dismissed
by this Court and another batch of three trials in the same case also ended in
acquittal. He contended that the contents of the charge-sheet did not warrant
framing of charges by the Special Judge, particularly when no recovery was
effected and the only evidence against the appellants was the alleged
confession which had not been relied upon in the earlier trial.
In the other case (Criminal Appeal No.811 of 2008), the First
Information Report was filed on 8th March, 1994, by the police authorities and
thereafter confessions of the appellant Nos.1 and 2 were recorded on 27th June,
2005. On being produced before the Magistrate on 29th June, 2005, the
appellants retracted their confessional statements on the ground that such
confessions had been obtained on the basis of threats and coercion and, in fact,
they did not even know as to what was written in the confessional statements. A
second petition made by the appellants was heard by the Designated Court at
Valsad, but the same was ultimately dismissed.
Mr. Sushil Kumar stated that since no recovery had been effected,
the only evidence available against the appellants were the confessional
statements alleged to have been made by them voluntarily, which have not been
relied upon in the earlier trial. Mr. Sushil Kumar submitted that most of the
accused persons in these cases have 6 either been acquitted or released on bail
and that in the absence of any concrete evidence linking the appellants with
the incident, their bail applications should have been allowed.
Mr. Ranjit Kumar, Senior Advocate, who appeared for the appellant
in Criminal Appeal No.813 of 2008, preferred by Jivan Raghu Varli, submitted
that the appellant had been arrested on 28th June, 2005, and that there were as
many as 47 accused in the case which was based on facts similar to those involving
Izharul Haq Abdul Hamid Shaikh, and they are all on bail except the appellant
who was alleged to have been absconding till he was arrested. Of the said 47
accused, the appellant, Jivan Raghu Varli, was one of the labourers who had
unloaded the materials from a truck and had loaded them on to another and
although the other labourers had been granted bail, the appellant's prayer for
bail had been rejected on the above-mentioned ground.
In this regard, Mr. Ranjit Kumar referred to the decision of this
Court in Shaheen Welfare 616], wherein keeping in mind the dilemma of
individual liberty as against protection from terrorism and disruptive
activities, this Court categorized people indulging in terrorism and disruptive
activities into two categories. The first category was the hardcore terrorists
who were directed to be dealt with strictly, while in the other cases it was
recommended that a liberal view be taken. But it was also indicated that such
an approach was not to be taken in extraordinarily grave cases, such as the
Bombay Bomb Blast cases.
Mr. Ranjit Kumar then referred to the Constitution Bench decision
in the case of Kartar which the constitutional validity of the Terrorist
Affected Areas (Special Courts) Act, 1984, the Terrorist and Disruptive
Activities (Prevention) Act, 1987, and the Terrorists and Disruptive 8
Activities Procedure (UP Amendment) Act, 1976, had been challenged. After
examining the provisions of the aforesaid enactments in detail, on the question
of bail, the majority view was that although such power was available to the
High Court under Article 226 of the Constitution, the same should be exercised
in extreme circumstances given the stringent provisions of the legislation.
Mr. Ranjit Kumar also referred to the decision of this Court in
Supreme Court Legal Aid Committee Representing Undertrial Prisoners vs. Union
of India & Ors. [(1994) 6 SCC 731], in which the provisions of Articles 21,
14 and 19 with regard to speedy trial of under trial prisoners was under
consideration and it was held that deprivation of personal liberty without
ensuring speedy trial violates Article 21 of the Constitution. The decision
which was rendered in regard to the provisions of the Narcotic Drugs and
Psychotropic Substances Act, 1985 took note of the fact of detention of persons
under the aforesaid Act for 9 long periods without trial and observed that the
provisions of bail under the Act being strict, refusing bail on the one hand
and delaying trial of cases on the other is unfair and unreasonable. Mr. Ranjit
Kumar submitted that charge had not yet been framed in the case and there were
216 witnesses to be examined. The likelihood of the trial being concluded at an
early date was highly improbable.
It was also submitted that the appellant, along with several
others, were labourers employed by Izharul Haq Abdul Hamid Shaikh and there is
nothing on record to indicate that they had any knowledge of the contents of
the boxes which were being transported from one vehicle to another. In fact, in
the affidavit affirmed by the Investigating Officer it has also been indicated
that the appellant was a labourer working under Izharul Haq Abdul Hamid Shaikh
at the relevant point of time.
although, it has been suggested that the appellant had absconded for 11 years,
the fact is that no steps had been taken to apprehend him 10 during the period
or to have him declared as an absconder.
It was also submitted that other labourers similarly situated,
such as Suresh Ishwar Varli and Mangu Mahadu Varli, had already been granted
bail in connection with this case. However, bail has been refused in the case
of the appellant on erroneous considerations.
Yet another decision of this Court in the case of Ranjitsing
Brahmajeetsing Sharma vs. State of Maharashtra & Anr. [(2005) 5 SCC 294]
was referred to by Mr. Ranjit Kumar with regard to the interpretation of
Article 21 in the light of the presumption of innocence, before being proved
guilty. It was observed that Article 21, in view of its expansive meaning, not
only protects life and liberty, but also envisages a fair procedure.
of a person should not ordinarily be interfered with unless there exist cogent
grounds therefor. Although, the aforesaid decision was 11 rendered under the
provisions of the Maharashtra Control of Organised Crime Act, 1999 (hereinafter
referred to as `MCOCA'), the provisions of TADA being similar with regard to
grant of bail, Mr. Ranjit Kumar submitted that the Court went on to observe
that Section 21(4) of MCOCA did not lead to the conclusion that the Court must
arrive at a positive finding that the applicant for bail had not committed an
offence under the Act, as in such an event it would be impossible for the
prosecution to obtain a judgment of acquittal and conviction, which could not
have been the intention of the Legislature. Section 21(4) of MCOCA would,
therefore, have to be considered reasonably by the Court to maintain a delicate
balance between a judgment of acquittal and conviction and an order granting
bail much before commencement of trial.
of the Court at the said stage was not to weigh the evidence meticulously but
to arrive at a finding on the basis of broad probabilities.
Reference was them made to the decision of this Court in State of
Maharashtra vs. Bharat Shanti Lal Shah & Ors. [2008 (12) SCALE 167], where
similar views have been expressed. Mr. Ranjit Kumar submitted that as far as
the appellant, Jivan Raghu Varli, was concerned, he could not be treated on a
different footing from the other labourers, who have been granted bail in this
The submissions made by Mr. Sushil Kumar and Mr. Ranjit Kumar on
behalf of the appellants in these three criminal appeals were strongly opposed
on behalf of the State of Gujarat by Mr. Yashank Adhyaru, learned Senior
Advocate. Referring to Section 12 of TADA, Mr. Adhyaru urged that when trying
an offence under the Act, the Designated Court could also try any other offence
with which the accused may, under the Indian Penal Code, be charged at the time
of trial. Mr. Adhyaru urged that sub-section (2) of Section 16 provides that if
during the trial under the TADA Act it is found that the accused person had
committed any other 13 offence under the Act or any rule made thereunder or
under any other law, the Designated Court could convict such person of such
other offence and pass any sentence authorized by the Act or such rule or such
other law for the punishment thereof.
was also made to Section 18 of TADA in this regard.
Referring to the certificate issued by the Superintendent of
Police, Porbandar, on 27th June, 2005, which records a confession said to have
been made by Izharul Haq Abdul Hamid Shaikh, Mr. Adhyaru submitted that the
said certificate satisfies the rigours of Sections 15 and 18 of TADA and the
same was sufficient to deny bail, even if there was no other material
available. Mr. Adhyaru relied on the decision in Kartar Singh's case (supra)
which was referred to by Mr. Ranjit Kumar, wherein the validity of TADA had
been upheld and this Court had held that while considering grant of bail, the
High Court under Article 226 of the Constitution was 14 required to exercise
extreme caution in view of the stringent provisions of the Act.
Mr. Adhyaru submitted that as far as Criminal Appeal No.811 of
2008 is concerned, it should be kept in mind that facts, other than the
confessional statements, had been taken into consideration by the Special Court
while denying bail to Izharul Haq Abdul Hamid Shaikh.
With regard to Criminal Appeal D. No.23837/08, Mr. Adhyaru
submitted that the trial had already commenced in this case and out of 86
witnesses, already 76 witnesses have been examined and that only the official
witnesses were left to be examined. Further more, in this case there is a
separate confessional statement.
In his response to Mr. Adhyaru's submissions, Mr. Sushil Kumar
pointed out that in terms of Section 20-A of TADA, notwithstanding anything
contained in the Code of Criminal Procedure, no 15 information about the
commission of an offence under the Act can be recorded by the police without
the prior approval of the District Superintendent of Police. Moreover,
Sub-Section (2) of Section 20-A provides that no Court shall take cognizance of
any offence under the Act without the previous sanction of the Inspector
General of Police or, as the case may be, of the Commissioner of Police.
Sushil Kumar submitted that the Investigating authorities had filed the First
Information Report without having obtained the prior approval of the District Superintendent
of Police, which was contrary to Sub-Section (1) of Section 20-A, thus
vitiating the entire proceedings. Mr. Sushil Kumar referred to the further
cross-examination of P.W.10 Harjeshwar, who was then serving as the District
Superintendent of Police, Porbandar, wherein he had admitted the fact that
approval had been accorded after the complaint had been registered. He also
referred to the First Information Report dated 8th May, 1994, in which, along
with the other offences under the Indian Penal Code, Arms Act and the 16
Explosive Substances Act, offences under Sections 3, 4 and 5 of the Tada Act
were also included. Mr. Sushil Kumar submitted that it would also be evident
from the affidavit filed on behalf of the State of Gujarat that approval had
been given for invoking the provisions of the TADA Act under Section 20-A(1) on
8th April, 1994, whereas the First Information Report was lodged on 8th March,
1994. The same question was the subject matter in Mukhtiar Ahmed Ansari vs.
State (NCT of Delhi), [(2005) 5 SCC 258], wherein it was held that since prior
approval, as required under Section 20-A(1) had not been accorded by the
Competent Authority under TADA, all proceedings taken without such sanction
were vitiated. Consequently, the conviction of the accused under TADA was set
Mr. Adhyaru, on instructions, submitted that the statement made by
Mr. Sushil Kumar was correct, but that though sanction had purportedly been
granted under Section 20-A(2), it was really intended to be a sanction under
Section 20-A(1) of 17 TADA. He also urged that Discharge Applications were also
pending before the learned Special Judge at Porbandar and that the trial is
being stayed on that account, and not on account of any delay on the part of
As indicated hereinbefore, we are only concerned with the question
regarding grant of bail to the appellants. We do not, therefore, intend to go
into the merits of the matters, which are pending disposal before the Special
from the submissions made on behalf of the parties, certain facts also emerge
which are required to be taken into consideration while considering the
question of grant of bail.
Taking up Criminal Appeal No.813/08 preferred by Jivan Raghu
Varli, first, it has transpired from the submissions of the parties that he was
a labourer, who was allegedly under the employment of Izharul Haq Abdul Hamid
Shaikh, the appellant in the other two appeals. It has also transpired that 18
he was one of a number of labourers who were allegedly involved in the transfer
of certain containers from one vehicle to another. The other labourers who were
involved in such operation are said to have been granted bail as they had no
knowledge of the contents of the said boxes and were merely shifting the same
on instructions. As far as the appellant - Jivan Raghu Varli is concerned, he
allegedly being in the employment of Izharul Haq Abdul Hamid Shaikh, a
presumption was drawn while denying him bail that he presumably had knowledge
of contents of the boxes. Without commenting on that aspect of the matter,
which is the subject matter of the trial, we are of the view that since the
other labourers have been granted bail and there being no available material to
presume that Jivan Raghu Varli had knowledge of the contents of the boxes, he
may be granted bail on a parity with the other labourers.
As to the prayer for grant of bail made by Izharul Haq Abdul Hamid
Shaikh, the records show 19 that while the First Information Report against him
under the Porbandar case had been lodged on 8th March, 1994, approval therefor
had been given a month later, on 8th April, 1994. What will be the effect of
the same will ultimately have to be decided in the trial and we are not
embarking on such exercise at the present moment. However, for the purpose of
grant of bail, having regard to the decision in Mukhtiar Ahmad Ansari's case
(supra) in which the question of grant of prior approval, as required under
Section 20-A(1), had been considered and was held to be a pre-condition for
recording the First Information Report, we are inclined to grant bail to the
appellant Izharul Haq Abdul Hamid Shaikh, since undoubtedly, approval had not
been obtained under Section 20-A(1) of TADA before the First Information Report
We, accordingly, grant bail to appellant Jivan Raghu Varli in
connection with TADA Case I/G. 6/96 n/s-121, 121(c), 122, 123, 120(B) of the
Indian Penal Code and under Sections 4, 5 and of the 20 Explosive Substances
Act and Sections 3, 4 and 5 of TADA Act pending before the Designated (TADA)
Judge at Porbandar, to the satisfaction of the Trial Court upon such conditions
as may be considered necessary to ensure his presence during the trial and also
as and when required, including restrictions on his movements and reporting to
the local Police Station in a manner, as may be deemed fit and proper.
We also grant bail to appellant Izharul Haq Abdul Hamid Shaikh in
Special TADA Case No.6 of 2005 under Sections 121, 121A, 122, 123, 120B, 34 of
the Indian Penal Code and Sections 25(1) AB, AA of the Arms Act, Section 9-B of
the Explosive Substances Act, read with Sections 3, 4, 5 and 6 of TADA Act
pending before the Designated (TADA) Court, Porbandar and also in connection
with Case No.1 of 2005 in respect of similar charges pending before the
Designated (TADA) Court at Valsad, subject to the satisfaction of the Trial
the conditions for grant of bail, there 21 will be similar directions, as
indicated hereinabove in Jivan Raghu Varli's case, with more stringent
conditions, if thought necessary by the Trial Court.
make it clear that any observation made by us while disposing of these appeals
at the stage of grant of bail should not influence the Trial Courts in the
trials pending before them. The appeals are disposed of accordingly.
.................J. (ALTAMAS KABIR)