Rambhai Nathabhai Gadhvi
& Ors State of Gujarat Vs. State of Gujarat, Rambhai Nathabhai Gadhvi  INSC 649 (6 August 1997)
ANAND, K. T. THOMAS
Dr. Justice A.S. Anand Hon'ble Mr. Justice K.T. Thomas Sushil Kumar, Sr. Adv.,
A.V. Palli, Atul Sharma and Mrs.
Advs. with him for the appellants Dr. N.M. Ghatate, Sr. Adv., Ms. Rekha Pandey
and Ms. Hemantika Wahi, Advs. with him for the Respondent
following Judgment of the Court was delivered:
W I T
H CRIMINAL APPEAL NO. 162 OF 1997
The Designated Court, Jamnagar convicted 4 persons under Section 5 of the Terrorist and
Disruptive Activities(Prevention) Act, 1987, (for short 'TADA'). They were also
tried for certain offences under Section 25 of the Arms Act, 1959 but the trial
judge refrained from convicting them under that section on the premise that the
other offence under TADA is a cognate offence of a graver dimension. In the
matter of sentences the trial court awarded rigorous imprisonment for 7 years
as against first accused Rambhai Gadhvi, while the three others were given only
a sentence of rigorous imprisonment for 5 years each.
convicted persons have come up in appeal under Section 19 of TADA and the State
of Gujarat have field an appeal for enhancement of the sentence of the first
accused to the maximum limit provided in law. We heard both appeals together.
accused in the father of second accused Kalu Rambhai Gadhvi and also elder
brother of the fourth accused Nagshi Nathabhai Gadhvi. The third accused Hitesh
vajshi Pindariya is their neighbour. The nub of the case against them is that
they all were actively engaged in smuggling of goods particularly arms and
ammunitions. First accused is described as the kingpin of the joint venture of
all the accused in the nefarious activities.
details of the prosecution case would show that the District Superintendent of
Police, Jamnagar, got some information about the
activities of the accused and so he proceeded to their residence at Khambalia
(in Jamnagar District with a posse of police personnel during the wee hours on 18-6-1993. On the way, he secured the presence of the Sub
Divisional Magistrate (PW-4) and two other persons for witnessing the operation
which was in the offing. On arrival at the residence of the first accused the
Superintendent of police knocked at the door and first accused opened the door
with a pistol in his hand, but was suddenly overpowered by the police. The
Superintendent of Police also succeeded in snatching the pistol from him.
party then raided the house of the second accused and seized one gun and
another air gun and a belt containing 10 cartridges besides currency notes for
Rs.67,000/-. When the person of the third accused was searched a pistol and
some cartridges were recovered. Thereupon the police wanted to raid the ice
factory of the accused. In that operation they succeeded in unearthing 9 boxes
containing smuggled goods.
accused was arrested and on interrogation the Superintendent of Police came to
know of the places where first accused had hidden other articles. When he was
taken to one such place he removed a heap of stones and disintered a bag
containing submachine guns, pistols, cartridges etc.
another place some more firearms and ammunitions were recovered. On 23-6-1993 police arrested the fourth accused and recovered a
pistol from a place where that firearm was concealed.
obtaining sanction purportedly under Section 20A(2) of TADA the prosecution was
launched against all the accused. After trial the Designated Court convicted the four accused and
sentenced them as aforesaid.
counsel for the appellant adopted a twin strategy to get the appellants
absolved of the conviction and sentence. Counsel attacked the veracity of the
evidence and tried to persuade us to hold that the evidence of the prosecution
is unrealistic and unreliable. Next he focussed on the validity of the sanction
under Section 20A of TADA.
advantageous to advert first to the contention relating to validity of the
sanction, for; if that contention deserves approval it renders the entire trial
vitiated and then it would be unnecessary to harp on the other contention.
Section 20A(2) of TADA: "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." Taking cognizance is the act which the Designed Court has to perform and granting
sanction is an act which the sanctioning authority has to perform. Latter is a
condition precedent for the former. Sanction contemplated in the sub- section
is the permission to prosecute a particular person for the offence of offences
under TADA. We must bear in mind that sanction is not granted to the Designated Court to take cognizance of the offence,
but it is granted to the prosecuting agency to approach the court concerned for
enabling it to take cognizance of the offence and to proceed to trial against
the persons arraigned in the report. Thus a valid sanction is sine qua non for
enabling the prosecuting agency to approach the court in order to enable the
court to take cognizance of the offence under TADA as disclosed in the report.
The corrolary is that, if there was no valid sanction the Designated Court gets no jurisdiction to try a case
against any person mentioned in the report as the court is forbidden from
taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence
without a valid sanction, such action is without jurisdiction and any
proceedings adopted thereunder will also be without jurisdiction.
this case the prosecution relies on Ext. 63, an order issued by the Director
General of Police, Ahmedabad, on 3-9-1993, as the sanction under Section 20A(2)
reproducing Ext.63 below:
No.J-1/1909/1/Khambalia 55/93 Director General of Police, Gujarat State, Ahmedabad Dt. 3.9.93 Perused: 1) FIR in respect of offence
registered No.55/93 at Khambalia Police Station 25(1)(b) (a)(b) of Arms Act and
section 3,4&5 of the TADA.
Application sent by DSP Jamnagar vide his letter No.RB/D/122/1993/1820 dt.
9.8.93. Having considered the FIR in respect of offence Registered No.55/93 at Khambalia
Police Station District Jamnagar under Section 25(1)(b)(a)(b) of Arms Act and
Sections 3,4 & 5 of TADA and letter No.RB/D/122/1993/1820 of DSP dt. 9.8.93
seeking permission to apply the provisions of TADA carefully. I A.K. Tandon,
Director General of Police, Gujarat State, Ahmedabad under the powers
conferred under the Amended provisions of TADA (1993) Section 20(A)(2) give
permission to add Section 3, 4 & 5 of TADA.
DIRECTOR GENERAL OF POLICE AHMEDABAD GUJARAT" Apparently Ext.63 makes
reference only to two documents which alone were available for the Director
General of Police to consider whether sanction should be accorded or not. One
is the FIR in this case and the other is the letter sent by the Superintendent
seeking permission or sanction. No doubt in that letter to the Director General
of police the Superintendent of Police had narrated the facts of the case. but
we may observe that he did not send any other document relating to the
investigation or copy thereof along with the application. Nor did the Director
General of Police call for any document for his perusal.
that the DGP had before him to consider the question of granting sanction to
prosecute were the copy of the FIR and the application containing some skeleton
facts. There is nothing on record to show that the Director General of police
called the Superintendent of Police atleast for a discussion with him.
such a situation, can it be said that the sanctioning authority granted
sanction after applying his mind effectively and after reaching a satisfaction
that it is necessary in public interest that prosecution should be launched
against the accused under TADA. As the provisions of TADA are more rigorous and
the penalty provided is more stringent and the procedure for trial prescribed
is summary and compendious, the sanctioning process mentioned in Section 20A(2)
must have been adopted more seriously and exhaustively than the sanction
contemplated in other penal statutes. One of us (Dr. Anand, J) has explained in
Hitendra Vishnu Thakur and ors vs. State of Maharashtra and ors. [1994 (4) SCC 602], while dealing with sanction
under Section 20A of TADA, that "The section was obviously introduced to
safeguard a citizen from any vaxatious prosecution under TADA. Vide Section 20-A(2)
of TADA no court can take cognizance of an offence under TADA unless there is a
valid sanction accorded by the competent authority as prescribed by the
section." In Anirudhsinhji Karansinhji Jadeja and anr. vs. State of Gujarat [1995(5) SCC 302], a three Judges
Bench had looked at the broad principles governing sanction contemplated under
TADA. The Bench noted in that case that for prosecution under TADA the State
Government had provided two administrative instructions as additional
safeguards against the drastic provisions of TADA wherein the DSP would required
require the consent of the State Government. When the consent relied on by the
prosecution in that case was considered the three Judges Bench observed that it
was given by the State Government without proper application of mind, even
though the said consent was granted on the strength of "a quite
exhaustive" letter addressed by the DSP. The following observations are
no doubt the message of the DSP is quite exhaustive, as would appear from that
message which has been quoted above in full, we are inclined to think that
before agreeing to the use of harsh provisions of TADA against the appellants,
the Government ought to have taken some steps to satisfy itself whether what
had been stated by the DSP was borne out by the records, which apparently had
not been called for in the present case, as the sanction/consent was given
post-haste on 18-3-1995, i.e., the very next day of the message of the
DSP." (emphasis supplied) If the consenting exercise even in respect of an
administrative instruction was construed to be of such a meaningful and serious
matter it is needless to point out that sanctioning exercise under a statutory
provision like Section 20A(2) would be no less.
from what we have noticed above, the non- application of mind by the Director
General of Police, Gujarat State, is even otherwise writ large in this case. A perusal of
Ext.63 (supra) shows that the Director General of Police in fact did not grant
any sanction for the prosecution of the appellants. Last part of the order
A.K. Tandon, Director General of Police, Gujarat State, Ahmedabad under he powers
conferred under the Amended provisions of TADA (1993) Section 20(A)(2) give
permission to add Section 3. 4 and 5 of TADA." Thus, what the Director
General of Police did was to grant permission "to add Section 3. 4 and 5
of TADA" and not any sanction to prosecute the appellants. It is pertinent
to note here that the permission to add Sections 3,4 and 5 of TADA had been
granted by the Home Secretary, the competent authority, much earlier and no
such permission was sought for from the Director General of Police by the DSP.
The Designated Court thus, failed to notice that Ext.63
was not an order of sanction but an unnecessary permission of the Director
General of Police to add Sections 3, 4 of TADA. The Director General of Police,
apparently, acted in a very casual manner and instead of discharging his
statutory obligations under Section 20(A)(2) to grant (or not to grant)
sanction for prosecution proceeded to deal with the request of the DEP
contained in his letter dated 9.8.1993, as if it was a letter seeking
permission to apply the provisions of TADA. The exercise exhibits that the
Director General of Police did not even read, let alone consider
"carefully", the FIR and the letter of the DSP dated 9.8.1983. We
cannot but express our serious concern at this casual approach of the Director
General of Police. On a plain reading of Ext.63, therefore, we must hold that
it is not an order of sanction to prosecute the appellants as required by
Section 20(A)(2) of the Act.
view of the aforesaid legal and factual position we have no doubt that sanction
relied on by the prosecution in this case was not accorded by the Director
General of Police in the manner required by law. Ext.63 is not the result of a
serious consideration and the document reflects scanty application of the mind
of the sanctioning authority into vital and crucial aspects concerning the
matter. It vitiates sanction and hence Ext.63 cannot be treated as sanction
under Section 20A(2) of TADA.
with this situation, learned counsel for the State of Gujarat contended that it
is open to this Court to convict the accused under Section 25 of the Arms Act
with the available evidence on record since the interdict contained in Section
20A(2) of the TADA has no application to the offences under the Arms Act.
said contention cannot be accepted for obvious reasons. Trail in respect of the
offence under Section 25 of the Arms Act was conducted by the Designated Court under the purported power conferred
by Section 12 of the TADA.
said Section reads thus:
of Designated Courts with respect to other offences - (1) when trying any
offence, a Designated Court may also try any other offence with which the
accused may, under the Code, be charged at the same trial if the offence is
connected with such other offence.
If, in the course of any trial under this Act of any offence, it is found that
the accused person has committed any other offence under this Act or any rule
made thereunder or under any other law, the Designated Court may convict such
person of such other offence and pass any sentence authorized by this Act or
such rule or, as the case may be, such other law, for the punishment there of.
obvious that power of the Designated Court
to charge the accused with any offence other than TADA offences can be
exercised only in a trial conducted for any offence under TADA. When trial for
offence under TADA could not have been held by the Designated Court for want of valid sanction
envisaged in Section 20-A(2) the consequence is that no valid trial could have
been held by that court into any offence under the Arms Act also. It is clear
that a Designated Court has no independent power to try any
other offence. Therefore, no conviction under Section 25 of the Arms Act is
possible on the materials collected by the Designated Court in the present case.
view of the above legal position we have to record an order of acquittal of the
accused. We, therefore, set aside the conviction and sentence passed on them
and acquit them and direct them to be set at liberty forthwith unless they are
required in any others case. Bail bonds executed by accused 4 shall stand
counsel for the State of Gujarat submitted that we may clarify that
acquittal of the accused on the above ground would not preclude the State from
launching a prosecution afresh with valid sanction. We may observe that if the
State Government considers the feasibility of launching any such fresh
prosecution it would bear in mind the fact that first accused has remained in
jail for all these years pursuant to the prosecution already launched against
him and, therefore, whether it would be desirable to launch fresh prosecution.
Appeal No.1909 of 1996 is thus, allowed and criminal Appeal No.162 of 1997 is