State of Maharashtra Vs. Abdul Hamid Haji Mohammed [1993] INSC 433 (13 October 1993)

PANDIAN, S.R. (J) PANDIAN, S.R. (J) SAHAI, R.M. (J) CITATION: 1994 SCC Supl. (1) 579 JT 1993 (6) 589 1993 SCALE (4)199

ACT:

HEADNOTE:

ORDER 1. Leave granted.

2. This appeal is preferred by State of Maharashtra challenging the order of the High Court dated August 6, 1993 granting interim bail to the respondent. The brief facts which led to the filing of this appeal are thus:

3.On March 12, 1993, there were a number of serious and ghastly incidents of bomb explosions in the metropolitan city of Bombay and suburbs resulting in the death of a number of persons and damage to huge amount of property. In respect of the first incident, a case was registered in Crime No. 129 of 1993 at MRA Marg Police Station on the complaint of the Chief Security Officer, Bombay Stock Exchange. Initially, offences under Sections 307, 302, 326, 324, 427, 436 read with 120-B IPC and Sections 4 and 5 of the Indian Explosive Substances Act came to be registered.

4.The investigation in the case was then handed over to the Senior Inspector of Police, DCB CID on March 13, 1993 under the orders of Joint Commissioner of Police (Crime and Administration) Bombay and DCB CID registered a case vide CR No. 70 of 1993 and offences under Sections 3, 4, 5 and 6 of the Terrorists and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the 'TADA') also were included along with other offences.

5.During the course of investigation, the respondent, Abdul Hamid Haji Mohd. was arrested in the early hours of April 18, 1993 in connection with Crime No. 70/DCB/CID. It is said, during the interrogation, he gave a statement which led to the recovery of 6 AK-56 rifles and 12 magazines which were kept concealed and hidden in the south-east corner on the western bank of a nulla 3-1/2' deep under the ground in a gunny sack bag in the compound of Picnic Guest House, behind Juhu Grant Restaurant adjacent to Ludo Cinema, Santacruz, Bombay. The police registered a separate case against the respondent vide 581 L.A.C. 20 of 1993 and the respondent thus has been formally arrested in two cases i.e. in C.R. No. 70 of 1993 and LAC No. 20 of 1993.

6.According to the prosecution, it was the respondent who pointed out the place in pursuance of his statement wherefrom these contraband were recovered in the presence of panchas. The contraband were sent to the forensic science laboratory. The ballistic expert gave the results of analysis in his report dated May 24, 1993 thus:

"Results of Analysis The rifles in Exhibits 1 to 6 are Chinese type 56-1 assault rifles of 7.62 mm caliber having selector markings generally put up in Chinese script or indicated by letters L and D respectively symbolic for full auto and semi- auto mode of operation in working order. As received the barrels of the exhibit rifles were oiled and greased.

Eight 7.62 mm short rifle cartridges from Ex. 4 of BL-495/93 (vide D.N. Nagar Police Station L.A.C. No. 926 of 1993) were successfully test fired from rifles in Ex. 1 to Ex. 6.

The rifle magazines in Exhibit 7-A to Exhibit 7-L readily sent in stock cavity of rifles in Exhibits 1 to 6. These rifle magazines are having capacity for thirty 7.62 mm short rifle cartridges." 7.It is the prosecution case that the respondent has two of his associates staying in Dubai who deal in hawala transaction and are in close contact with one Dawood Ibrahim and his associates who had supplied firearms and explosives to one Tiger Memmon and his associates and that the firearms had been stored in the said premises at the instance of one Mohmed Anis who is the brother of Dawood and is wanted in the bomb blast case. It is stated that the respondent is concerned with the conspiracy and that further investigation in the case is being proceeded with. It is not in dispute that one Mohmed Hussain Umar, merchant is the landlord and owner of the building, that one Mohmed Farooq Mohmed Yusuf Batki was the tenant and that the respondent was only a developer of the said building. According to the prosecution, the respondent was in possession and control of the property known as Picnic Guest House. We feel that it is not necessary to give any more details about the facts of this case for disposal of this appeal. But suffice it to say that two bail applications, namely, Bail Application No.

116 of 1993 in TADA Remand Application No. 68 of 1993 and Bail Application No. 117 of 1993 in TADA Remand Application No. 69 of 1993 were moved before the designated court for Greater Bombay. The designated court after hearing the parties by a detailed and common order dated June 4, 1993 rejected both the bail applications.

8.Being aggrieved by the dismissal of the applications, the appellant filed a Criminal Writ Petition No. 902 of 1993 under Articles 226 and 227 of the Constitution of India seeking issuance of a writ of certiorari quashing all the proceedings initiated under the provisions of TADA and also quashing and setting aside the order of the learned Judge of the designated court dated June 4, 1993 remanding the respondent to judicial custody. In addition to the above reliefs, there was one more prayer, that being, to admit the respondent to bail on such terms and conditions as the High Court would deem fit to impose. The High Court after hearing the parties passed the impugned order directing the respondent to be released on interim bail attached with certain conditions. For issuing rule, the High Court appears to have drawn inspiration on the basis of a 582 decision of a Division Bench of the High Court of Bombay in Rafiq Abid Patel v. Inspector of Police' and on the order of admission passed by another Division Bench of the same High Court in Sanjay Dutt v. State of Maharashtra2. It is as against this impugned order the State has preferred this appeal. This Court on August 20, 1993 while issuing notice granted interim stay of the order of the High Court.

9.Mr K.T.S. Tulsi, the learned Additional Solicitor General of India appearing for the State challenges the impugned order mainly on a legal ground, inter alia, contending that when there is specific procedure provided in the special act, namely TADA, that procedure alone must be followed and applied and not otherwise and that while the High Court cannot exercise its power under Section 439 CrPC, it has no justification in releasing the respondent on bail in exercise of its plenary jurisdiction under Articles 226 and 227 of the Constitution. He places reliance on several decisions of this Court, namely, (1) Ramchandra A. Kamat v.

Union of India3; (2) Kehar Singh v. State (Delhi Admn.4);

(3) State of Maharashtra v. Anand Chintaman Dighe5; (4) State of Maharashtra v. Anand Chintaman Dighe6 and (5) Mool Chand v. State7.

10.Incidentally, the learned Additional Solicitor General made his submission on the facts of the case stating that there is ample evidence collected against the respondent which would justify the invocation of the provisions of the TADA.

11.Mr Ram Jethmalani, the learned senior counsel opposed the above submission of Additional Solicitor General stating that there is absolutely no evidence creating a nexus between the alleged possession of the weapons and the offences. According to him, the respondent is only a developer having been entrusted with the work of construction; but actual possession was with the tenant of the property of which the owner is a different person. He drew our attention to Exhibit 'O' which is a roznama and the remand order showing the arrest of the owner, tenant and the respondent and contended that while the owner and the tenant who were arrested along with the respondent have been released on bail, there is no justification to reject the bail application of the developer, namely, the respondent.

He continued to urge that the authority of the court under Article 226 of the Constitution of India cannot be whittled down by the provisions of the special act which is the creature of the Constitution. He also cited a number of decisions in support of his submission, namely, (1) State of Bihar v. Rambalak Singh8; (2) State of W.B. v. Swapan Kumar Guha9; (3) Erram Santosh Reddy v. State of A.P.10; (4) Narendra Govind Mangela v.

1 (1992) 2 Bom CR 400: 1992 Cri Lj 394 2 Criminal Writ Petition No. 574 of 1993, decided on May 5, 1993 3 (1980) 2 SCC 270: 1980 SCC (Cri) 414 4 (1988) 3 SCC 609: 1988 SCC (Cri) 711 5 (1990) 1 SCC 397: 1990 SCC (Cri) 142 6 (1991) 3 SCC 209: 1991 SCC (Cri) 500 7 1991 Supp (2) SCC 101: 1991 SCC (Cri) 1001 8 (1966) 3 SCR 344: AIR 1966 SC 1441: 1966 Cri LJ 1076 9 (1982) 1 SCC 561: 1982 SCC (Cri) 283 10 (1991) 3 SCC 206: 1991 SCC (Cri) 5 1 0 583 Inspector of Police' 1 and (5) Bijander Kumar v. State of Haryanal 2. Besides he also drew our attention to para 1501 at page 96 of Halsbury's Laws of England. He explained the principle of law laid down in Usmanbhai Dawoodbhai Memon v. State of Gujaratl3. Both the parties thus made a lengthy argument both on the question of law and fact.

12.The order impugned herein is only an interim order.

The main writ petitionis still pending before the High Court for final hearing. In fact, the High Court after granting the interim order on August 6, 1993 has itself stayed the operation of the order for nearly 15 days i.e. till August 21, 1993 thereby enabling the appellant herein to approach this Court.

13.After going through the impugned order, we are at loss to understand as to whatwere the reasons that prompted the High Court to take a contrary view to that of the designated court observing that "the petitioner has made out a case for releasing him on bail during the pendency of the petition" and to pass the impugned interim order granting bail especially when the question of the jurisdiction of the High Court to entertain a bail application with regard to offences under the provisions of TADA is under serious challenge. Therefore, we are of the view that it would be just and proper if the High Court after hearing the parties both on the questions of law and fact, passes a reasoned order either on the main writ petition or on the ancilliary relief sought for i.e. bail so that this Court may be in a better position to understand and examine the reasonings of the High Court.

14.In the above circumstances, we feel it is not necessary for us to examine the legal question raised before this Court at this interlocutory stage and render our view.

15.In the result, we without expressing any opinion on the question of the jurisdiction of the High Court in granting bail by resorting to Articles 226 and 227 of the Constitution of India, request the High Court to dispose of the main reliefs or the ancilliary relief for bail as early as possible after hearing both the parties preferably within a period of two months from today. Meanwhile, the stay granted by this Court staying the operation of the impugned interim bail order of the High Court shall continue. The appeal is disposed of accordingly.

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