Supreme Court of India
ASHRAFKHAN @ BABU MUNNEKHAN PATHANversusSTATE OF GUJARAT
- Citation
- 2012 INSC 425
- Decided
- 26 September 2012
- Disposal
- Disposed off
- Bench
- H L DATTU
Holding
The conviction under TADA is vitiated due to non‑compliance with the mandatory prior approval requirement of s.20‑A(1), and consequently the related convictions under the Arms Act and Explosive Substances Act are also set aside.
Summary
The case involved 60 accused charged under TADA, the Arms Act and the Explosive Substances Act, of whom 11 were convicted by a Designated Court. The appellants contended that the FIR under TADA was registered without the mandatory prior approval of the District Superintendent of Police under s.20‑A(1) of TADA, rendering the conviction void. The State argued that approval had been given by the Deputy Commissioner and that any defect could be cured under CrPC s.465, or that the later sanction under s.20‑A(2) or the Designated Court’s cognizance under s.14 and s.18 cured the defect. The Supreme Court held that no approval under s.20‑A(1) was proved, that the provision is mandatory and not directory, and that the defect is not curable under s.465. Consequently, the TADA conviction was vitiated, and because the convictions under the Arms Act and Explosive Substances Act were based solely on confessions recorded under TADA, those convictions were also set aside. The Court allowed the appeals of the convicted accused and dismissed the State’s appeals challenging acquittals and sentence adequacy.
Issues considered
- The FIR under TADA was registered without prior approval under s.20‑A(1) of TADA.
- Whether the lack of approval under s.20‑A(1) is a fatal defect or a curable defect under CrPC s.465.
- Whether approval by the Additional Chief Secretary or sanction under s.20‑A(2) can substitute for the missing s.20‑A(1) approval.
- Whether the Designated Court’s power to take cognizance under s.14 and s.18 bars the accused from challenging the defect later.
- Whether the conviction under the Arms Act and Explosive Substances Act can stand when the TADA conviction is vitiated.
Legislation cited
- Arms Act, 1959s. 25(1A), s. 7
- Code of Criminal Procedure, 1973s. 465
- Explosive Substances Act, 1908s. 4, s. 5, s. 6
- Indian Penal Code, 1860s. 1208, s. 120B, s. 121A, s. 122, s. 123, s. 188
- Terrorist and Disruptive Activities (Prevention) Act, 1987s. 14, s. 18, s. 20-A(1), s. 20-A(2)
Subjects
TADASection 20-Aprior approvaldesignated courtconviction vitiatedcurative defectSection 465 CrPCArms ActExplosive Substances Actterrorismprocedural safeguards
Judgment
[2012] 12 S.C.R. 1033
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN A
v.
STATE OF GUJARAT
(Criminal Appeal No. 482 of 2002 etc.)
SEPTEMBER 26, 2012
B
[H.L. DATTU AND CHANDRAMAULI KR. PRASAD, JJ.]
Terrorist and Disruptive Activities (Prevention) Act, 1987:
s.20-A(1) - Approval under - Absence - Effect of - c
·Prosecution under provisions of /PC, TADA, Arms Act and
Explosive Substances Act - Of 60 accused - Conviction of
11 accused by Designated Court under provisions of TADA,
Arms Act and Explosive Substances Act and acquittal of 41
accused - Appeals by the convicted accused as well as the 0
State - Plea of the accused that conviction was vitiated in
absence of approval u/s. 20A(1) before registration of FIR -
Plea of State interalia that there was approval by the Deputy
Commissioner of Police (PW65) on 9.6.1994 as well as on
· 11.8.1994 and approval given by Additional Chief Secretary, E
Home Department of the State on 15.6.1994 - Held: From
the evidence on record is it not proved that the Deputy
Commissioner of Police (PW65) granted approval uls. 20-
A(1) either on 9.6.1994 or on 11.8.1994 - The approval by
the Addi. Chief Secretary, Home Department of State, though
is proved, but the same is inconsequential ass. 20-A(1) does F
not contemplate approval by the Addi. Chief Secretary, Home
Department of the State - Thus the conviction stands vitiated
in absence of approval u/s. 20-A(1) - However, the absence
of approval u/s. 20-A(1) would not vitiate the conviction under
the other penal provisions viz. Arms Act and Explosive G
Substances Act - But since the conviction under TADA is
vitiated for non-compliance of s. 20-A(1), the confessions (on
the basis of which conviction under Arms Act and Explosive
1033 H
1034 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Substances Act was based) cannot be relied upon to
establish the guilt thereunder - Hence the conviction under
the provisions of Arms Act and Explosive Substances Act is
set aside - Benefit of the judgment is also given to the
convicted accused who did not approach Supreme Court or
B whose appeals were not entertained by this court on the
ground that they had served out the sentence - Arms Act,
1959 - ss. 7 and 25 (1A) - Explosive Substances Act, 1908
- ss. 4, 5 and 6.
s. 20-A(1) and 20-A(2) - Approval under s. 20-A(1) -
C Absence of- Whether inconsequential if sanction u/s. 20-A(2)
granted - Held: The approval and sanction operate in
different and distinct stages and for successful prosecution,
both the requirements have to be complied with - The
sanction uls. 20-A(2) does not render approval uls. 20-A(1)
D inconsequential.
ss. 20-A(1) and 20-A(2) - Non-compliance of s. 20-A(1)
- Whether curable defect in parity with s. 20-A(2) - Held: It
is not curable - An Act which is harsh, containing stringent
E provisions prescribing different procedure cannot be
construed liberally - For ensuring rule of law, its strict
adherence has to be ensured.
ss. 20-A(1) - Non compliance of - Whether curable
defect u/s. 465 Cr.P. C - Held: s. 465 is attracted to trial under
F TADA - But since the defect goes to the root of the matter, it
is not covered bys. 465 - Code of Criminal Procedure, 1973
- s. 465.
ss. 20-A(1) and 18-Approval unders. 20-A(1)-Absence
G of - Whether rendered irrelevant on Designated Court taking
cognizance of the case in exercise of power uls. 18 and
whether the issue permissible to be raised at later stage -
Held: Exercise of power u/s. 18 by Designated Court does not
prevent the accused to challenge the trial or conviction later.
H
ASHRAFKHAN@BABU MUNNEKHAN PATHAN v. 1035
STATE OF GUJARAT
ss. 20-A(1) and 14 - Non-compliance of s. 20-A(1) - A
Whether rendered irrelevant by the fact that Designated Court
is empowered to take cognizance u/s. 14 irrespective of
absence of compliance of s. 20-A(1) - Held: Power uls. 14 to
the Designated Court does not make all other provisions of
the Act inconsequential. B
s. 20-A(1) - Interpretation of- Requirement of approval
u/s. 20-A(1) cannot be said to be directory- Negative words
used in the provision makes it clear that it is not directory -
Provisions of TADA has to be strictly construed - C
Interpretation of Statutes.
Interpretation of Statutes - Rule of interpretation -
Legislative intent - Plain ordinary grammatical meaning
affords the best guide to ascertain the intention of the
legislature - Other methods to understand the meaning is D
resorted to, when the language of the provision is ambiguous
or leads to absurd result.
Charge-sheets were filed against 62 accused
including the appellants-accused in five stages, by the E
police. The accused were charged u/ss. 1208 IPC, ss. 3
and 5 of Terrorist and Disruptive Activities (Prevention)
Act, 1987, ss. 4, 5 and 6 of Explosive Substances Act,
1908 and s. 25 (1A) of the Arms Act. Designated Court
charged 60 accused of the above-mentioned charges.
Accused No. 57 was discharged and accused No. 9 F
absconded. Designated Court convicted 11 accused u/
ss. 3 and 5 of TADA, ss. 7 and 25(1A) of Arms Act and
ss. 4, 5 and 6 of Explosive Substances Act. 41 accused
were acquitted.
G
Convicted accused filed appeals to this Court
challenging their conviction. State also flled appeals
aggrieved by Inadequacy of the sentence to the
convicted accused and also challenged acquittal order.
H
1036 SUPREME COURT REPORTS [2012) 12 S.C.R.
A The appellants-accused contended that since the
FIR under the provisions of TADA was registered without
approval of District Superintendent of Police as
contemplated u/s. 20-A(1) of TADA and therefore the
conviction was vitiated.
B
The State contended that the Deputy Commissioner
PW 65 had given prior approval on 9.6.1994 and also on
11.8.1994 for recording FIR and that approval was also
given by the Addi. Chief Secretary, Home Department on
15.6.1994. Alternatively, the State contended that non-
e compliance of s. 20-A(1) is not fatal as the same is curable
defect u/s. 465 Cr.P.C.; that since absence of sanction u/
s. 20-A(2) is a curable defect, by parity absence of
approval u/s. 20-A(1) would also be curable; that the
police having granted sanction u/s. 20-A(2), conviction
D cannot be held bad only on the ground of non-
compliance of approval; that the Designated Court having
taken cognizance and decided to try the case in exercise
of power u/s. 18 TADA, prior defects are rendered
irrelevant and cannot be raised; that Designated Court
E having been empowered to take cognizance u/s. 14
TADA, irrespective of absence of compliance u/s. 20-A(1),
its non-compliance would not be fatal to the prosecution;
and that absence of approval u/s. 20-A(1) would not vitiate
the conviction under other penal provisions i.e. Arms Act
F and Explosive Substances Act.
Allowing the appeals filed by the accused and
dismissing the appeals filed by the State, the Court
HELD: 1.1 The case of the prosecution that the
G Deputy Commissioner granted approval under Section
20-A(1) of TADA before registration of the case is fit to be
rejected. the Deputy Commissioner PW 65 has
categorically stated in his evidence that he had gone to
the Supreme Court with original records, which included
H the First Information Report, on which he had granted
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1037
STATE OF GUJARAT
approval and handed over the same to the counsel. A '
Thereafter, according to him, the original First Information
Report got lost or misplaced. It has been brought to the
notice of the Court that accused 'YL' had not come to this
Court for grant of bail and, therefore, the Deputy
Commissioner had no occasion to come with the original B
records in connection with that case. True it is that some
of the accused persons in the case had approached this
Court for various reliefs, but in the face of the evidence
of PW 65 that he came along with the record in
connection with the case of the accused 'YL' is fit to be c
rejected. [Para 20] [1052-G-H; 1053-A-C]
1.2 Charge-sheet in the case has been filed in five
stages. Further, report under Section 157 Cr.P.C. _has
been filed and all these acts had taken place before the
alleged loss of the document in the Supreme Court and, D
therefore, should have formed part of the charge-sheet
and the report given under Section 157 Cr.P.C. It has also
come on record that later on, the Assistant Commissioner
of Police, Crime Branch had sought for approval of the
Deputy Commissioner which he granted on 11th of E
August, 1994. The communication of the Assistant
Commissioner of Police (Exh.1173) does not refer to any
approval granted by the Deputy Commissioner earlier
and, not only that, the Deputy Commissioner while giving
approval on 11th of August, 1994 has nowhere F
whispered that earlier he had already granted the
approval. No explanation is forthcoming from the side
of the prosecution that when Deputy Commissioner PW65
had already granted approval on 9th of June, 1994, what
was the occasion to write to him for grant of another G
approval and the Deputy Commissioner granting the
same. To prove prior approval, the prosecution has
produced the xerox copy. According to the evidence of
Deputy Commissioner PW65, he had got it prepared from
the copy kept in his office. When a copy of the approval H
1038 SUPREME COURT REPORTS (2012] 12 S.C.R.
A was kept in the office of the Deputy Commissioner itself,
why the xerox copy was produced. PW65 in his cross-
examination, has admitted that he did not remember
whether there was any such paper in his office or not for
grant of approval for which he had deposed. From the
B analysis of the evidence on record, there is no manner
of doubt that the Deputy Commissioner PW65 did not
grant prior approval before registration of the case.
[Paras 21 and 23] [1053-C-H; 1054-A-G]
1.3 The prosecution has relied on another approval
C dated 11th of August, 1994 granted by the Deputy
Commissioner. In order to prove this, reference is made
to the letter of the Assistant Commissioner addressed to
the. Deputy Commissioner of Police (Exh. 1173). In the
said letter, the Assistant Commissioner of Police has
D observed that the Home Department of the Government
has given approval to apply Sections of TADA and the
approval of the Deputy Commissioner is necessary in this
regard. The Deputy Commissioner of Police on the same
day granted approval. However, Deputy Commissioner
E PW65, in his evidence, has nowhere stated about the
approval granted on 11th of August, 1994 though he had
deposed about the approval granted on 9th of June,
1994. In the face of It, the case of the prosecution that
Deputy Commissioner PW65 gave another approval on
F 11th of August, 1994 Is also fit to be rejected. [Para 24]
[1055-A-C]
1.4 From a plain reading of s. 20-A(1) of TADA, It Is
evident that no Information about the commission of an
offence shall be recorded by the pollce without the prior
G approval of the District Superintendent of Polle;e. The
legislature, by using the negative word In Section 20-A(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
H construed. Negative words can rarely be held directory.
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1039
STATE OF GUJARAT
The plain ordinary grammatical meaning affords the best A
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 B
Superintendent of Police, on principle, cannot be said to
be directory in nature. [Para 27] [1056-C-E]
Anirudhsinhji Karansinhji Jadeja v. State of Gujarat
(1995) 5 SCC 302: 1995 (2) Suppl. SCR 637; Mukhtiar
Ahmed Ansari v. State (NCT of Delhi) (2005) 5 SCC 258: C
2005 (3) SCR 797; Mohd. Yunus v. State of Gujarat (1997)
8 SCC 459: 1997 (4) Suppl. SCR 494 - relied on.
Kalpnath Rai v. State (1997) 8 SCC 732; State of A.P.
v. A.Sathyanarayana (2001) 10 SCC 597 - referred to. D
2.1 In view of the evidence on record, the case of the
prosecution that the Additional Chief Secretary, Home
Department, on 15th of June, 1994 had given approval is
accepted. Section 20-A of TADA authorises the District E
Superintendent of Police to grant approval for recording
the offence and Additional Chief Secretary of the Home
Department or for that matter, State Government does not
figure in that. The legislature has put trust on the District
Superintendent of Police and therefore it is for him to uphold
that trust and nobody else. Hence approval by the
F
Additional Chief Secretary is inconsequential and it will
not save the prosecution on this count, if found vulnerable
otherwise. [Paras 25 and 31] [1055-E; 1059-C-E]
2.2 In order to prevent the abuse of TADA, the State G
Government may put other conditions and prescribe
approval by the Government or higher officer in the
hierarchy but the same cannot substitute the requirement
of approval by the District Superintendent of Police. Not
only this, the District Superintendent of Police is obliged H
1040 SUPREME COURT REPORTS [2012] 12 S.C.R.
A to grant approval on its own wisdom and outside dictate
would vitiate his decision. [Para 31] [1059-E·F]
Anirudhsinhji Karansinhji Jadeja v. State of Gujarat
(1995) 5 SCC302: 1995 (2) Suppl. SCR 637- relied on.
B 3. Section 465 Cr.P.C. shall be attracted in the trial of
an offence by the Designated Court under TADA. But
Section 465 Cr.P.C. shall not be a panacea for all error,
omission or irregularity. Omission to grant prior approval
for registration of the case under TADA by the
C Superintendent of Police is not the kind of omission which
is covered under Section 465 Cr.P.C. It is a defect which
goes to the root of the matter and it is not one of the curable
defects. [Paras 32 and 33] [1059-H; 1060-A-E-F]
0 4.1 It is also not correct to say that absence of
sanction under Section 20-A(2) by the Commissioner of
Police has been held to be a curable defect and for parity
of reasons, the absence of approval under Section 20-
A(1) would also be curable. An Act which is harsh,
E containing stringent provision and prescribing procedure
substantially departing from the prevalent ordinary
procedural law cannot be construed liberally. For
ensuring rule of law, its strict adherence has to be
ensured. [Para 34] [1060-F-H; 1061-A]
F 4.2 The very existence of the approval under Section
20-A(1) of TADA has been questioned by the accused
during the course of trial, which is evident from the trend
of cross-examination. Not only this, it was raised before
the Designated Court during argument and has been
G rejected. Thus, it cannot be said that it was not raised at
the earliest. [Para 35] [1061-F-G]
5. It is not correct to say that the accused cannot
assail their conviction on the ground of absence of
H approval under Section 20-A(1) of TADA by the Deputy
ASHRAF KHAN @ BABU MUNNEKHAN PATHAN v. 1041
STATE OF GUJARAT
Commissioner, when the Commissioner of Police had A
granted sanction under Section 20-A(2) of TADA. 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 B
about the commission of an offence under TADA shall be
recorded by the police without the prior approval of the
District Superintendent of Police. Further safeguard has
been provided and restriction has been put on the court
not to take cognizance of any offence without the c
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. In a case in which different safeguards 0
have been provided at different stages, it cannot be held
that adherence to the last safeguard would only be
relevant and breach of other safeguards shall have no
bearing on the trial. [Paras 36] [1062-A-D]
Ahmad Umar Saeed Sheikh v. State of U.P. (1996) 11 E
sec 61 - relied on.
Lal Singh v. State of Gujarat (1998) 5 SCC 529 - held
inapplicable.
6. It is not correct to say that the Designated Court F
having taken cognizance and decided to try the case by
itself in exercise of the power under Section 18 of TADA,
the prior defects, if any, are rendered irrelevant and
cannot be raised. The power of the Designated Court u/
s. 18, to transfer the case to be tried by a court of G
competent jurisdiction would not mean that in case the
Designated Court has decided to proceed with the trial,
any defect in trial, cannot be agitated at later stage. Many
ingredients which are required to be established to confer
jurisdiction on a Designated Court are required to be H
1042 SUPREME COURT REPORTS [2012] 12 S.C.R.
A proved during trial. At the stage of Section 18, the
Designated Court has to decide as to whether to try the
case itself or transfer the case for trial to another court
of competent jurisdiction. For that, the materials
collected during the course of investigation have only to
B be seen. The investigating agency, in the present case,
has come out with a case that prior approval was given
for registration of the case and the allegations made do
constitute an offence under TADA. In the face of it, the
Designated Court had no option than to proceed with the
c trial. However, the decision by the Designated Court to
proceed with the trial shall not prevent the accused to
contend in future that they cannot be validly prosecuted
under TADA. Even in a case which is not fit to be tried
by the Designated Court but it decides to do the same,
instead of referring the case to be tried by a court of
0
competent jurisdiction, it will not prevent the accused to
challenge the trial or conviction later on. [Para 37] [1062-
F-H; 1063-A-E]
7. Section 14 of TADA confers jurisdiction on a
E Designated Court to take cognizance of any offence
when the accused being committed to it for trial upon
receiving a complaint of facts which constitute s'uch
offence or upon a police report of such facts. The
offence under TADA is to be tried by a Designated Court.
F The Designated Court has all the powers of Court of
Session and it has to try the offence as if it is a Court of
Session. Cr.P.C. provides for commitment of the case
for trial by the Court of Session. Section 14(1) of TADA
provides that the Designated Court may take cognizance
G on receiving a complaint of facts or upon a police report.
Had this provision not been there, the cases under TADA
would have been tried by the Designated Court only after
commitment. In any view of the matter, the accused
during the trial under TADA can very well contend that
H their trial is vitiated on one or the other ground
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1043
STATE OF GUJARAT
notwithstanding the fact that the Designated Court had A
taken cognizance. Taking cognizance by the Designated
Court shall not make all other provisions inconsequential.
[Para 38] [1063-F-H; 1064-A-B]
8.1 The Designated Court, besides trying the case B
under TADA, can also try any other offence with which
the accused may be charged at the same trial, if the
offence is connected with the offence under TADA.
When the Designated Court had the power to try offences
under TADA as well as other offences, it is implicit that it
·has the power to convict also and that conviction is C
permissible to be ordered under TADA or other penal
laws or both. It is not necessary for the Designated Court
to first order conviction under TADA and only thereafter
under other penal law. "The Designated Court is
empowered to convict the accused for the offence under D
any other law notwithstanding the fact that no offence
under TADA is made out." [Para 39] [1064-D-G]
Prakash Kumar v. State of Gujarat (2005) 2 SCC 409:
2005 (1) SCR 408 - followed. E
8.2 Though the conviction of the accused is held to
have been vitiated on account of non-compliance of
Section 20-A(1) of TADA, it may be permissible in law to
maintain the conviction under the Arms Act and the
Explosive Substances Act but that shall only be possible F
when there are legally admissible evidence to establish
those charges. The Designated Court has only relied on
the confessions recorded under TADA to convict the
accused for offences under the Arms Act and the
Explosive Substances Act. In view of the finding that their G
conviction is vitiated on account of non-compliance of the
mandatory requirement of prior approval under Section
20-A(1) of TADA, the confessions recorded cannot be
looked into to establish the guilt under the aforesaid Acts.
H
1044 SUPREME COURT REPORTS [2012) 12 S.C.R.
A Hence, the conviction of the accused under Section 7
and 25(1A) of the Arms Act and Section 4, 5 and 6 of the
Explosive Substances Act cannot also be allowed to
stand. [Para 40) [1065-0-G]
9. Many of the accused, because of poverty or for the
8
reason that they had already undergone the sentence,
have not preferred appeals before this Court. Further, this
Court had not gone into the merits of the appeals
preferred by few convicts on the ground that they have
already served out the sentence and released thereafter.
C The view taken by this Court goes to the root of the matter
and vitiates the conviction and, hence, benefit of this
judgment is granted to all those accused who have been
held guilty and not preferred appeal and also those
convicts whose appeals have been dismissed by this
D Court as infructuous on the ground that they had already
undergone the sentence awarded. [Para 44) [1066-G-H;
1067-A·B]
Case Law Reference:
E 1997 (4) Suppl. SCR 494 Relied on Para 21
1995 (2) Suppl. SCR 637 Relied on Paras 27
and 31
2005 (3) SCR 797 Relied on Para 28
F
(1997) 8 sec 132 Referred to Para 29
(2001) 1o sec 597 Referred to Para 30
(1998) 5 sec 529 held inapplicable Para 34
G (1996) 11 sec 61 Relied on Para 35
2005 (1) SCR 408 followed Para 39
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 482 of 2002.
H
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1045
STATE OF GUJARAT
From the Judgment & Order dated 31.01.2002 of the A
Additional Designated Judge, Court No. 3, Ahmedabad City
in Tada Case No. 15/95 and 6/96 consolidated with Tada Case
No. 32/94 and 43/96.
WITH B
Crl. A. Nos. 486-487, 762-765 and 766-768 of 2002.
Sushi! Kumar, Ranjit Kumar, Sanjay Jain, Afshan P., Vinay
Arora, Vimal Chandra S. Dave for the Appellant.
Yashank Adhyaru, Pinky Behra, Nandini Gupta (for
c
Hemantika Wahi), Kamini Jaiswal, Garvesh Kabra (A.C.),
Pooja Kabra, Abhishek Jaju, Nikita Kabra Jaju, E.C. Agrawala,
V. Anantharaman (For Meenakshi Arora), Balraj Dewan for the
Respondent.
D
The Judgment.of the Court was delivered by
CHANDRAMAULI KR. PRASAD, J. 1. These appeals
have been filed against the judgment and order dated 31st of
January, 2002 passed by Additional Designated Judge, Court E
No.3, Ahmedabad City in TADA Case Nos. 15/1995 and 6/
1996 consolidated with TADA Case Nos. 32/1994 and 43/
1996.
2. According to the prosecution, Abdul Wahab Abdul Majid
Khan was arrested in a case of murder. On being interrogated F
in that case, he made startling and shocking revelations. He
disclosed that accused Yusuf Laplap, who is involved in illegal
business of liquor and running a gambling den is in possession
of four foreign made hand grenades, revolvers and AK-47
rifles. The fountainhead of the weapons, according to the G
information is notorious criminal Abdul Latif Shaikh and came
at the hand of accused Yusuf Laplap through his close
associate accused Abdul Sattar@ Sattar Chacha. Sattar gave
the arms and explosives to accused Siraj @ Siraj Dadhi, a
constable attached to Vejalpur Police Station. He in turn H
1046 SUPREME COURT REPORTS [2012] 12 S.C.R.
A delivered those arms and explosives to accused lmtiyaz
Nuruddin, the servant of Yusuf Laplap at latter's instance. The
aforesaid information was passed on to A.K. Suroliya, the
Deputy Commissioner of Police, Crime Branch. The police
party searched the house of the accused Yusuf Laplap in the
B night and found him leaving the house with two bags. From
one of the bags one revolver with ISi mark and five foreign made
hand grenades were recovered and from another bag five
detonators having clips affixed to it were found.
3. According to the allegation, the arms and explosives
C seized were similar to those used in the Ahmedabad City
earlier by gang of criminals and intended to be used in the
forthcoming "Jagannath Rath Yatra". The information given by
the Police Inspector, U.T. Brahmbhatt led to registration of
Crime No. 1-CR No. 11 of 1994 dated 9th of June, 1994, at
D the Crime Branch Police Station under Section 120B of the
Indian Penal Code, Section 3 & 5 of Terro.rist and Disruptive
Activities (Prevention) Act (hereinafter referred to as 'TADA'),
Section 7 & 25 (1) of the Arms Act and Section 4, 5 and 6 of
the Explosive Substances Act against seven accused persons'.
E
4. It is the case of the prosecution that the Police Inspector
U.T. Brahmbhatt, before recording the first information report,
sought prior approval of the Deputy Commissioner of Police,
Crime Branch, for registration of the case which was granted.
F It is only thereafter, the first information report was registered
and the investigation proceeded. It is also their case that
another approval was granted on 15th of June, 1994 by the
Additional Chief Secretary, Home Department. Not only that,
the Deputy Commissioner of Police, Crime Branch, PW-65 A.R.
G Suroliya gave another approval on 11th of August, 1994.
5. During the course of investigation, the complicity of large
number of persons surfaced. In all 46 AK-56 rifles, 40 boxes
1. List of persons named in Crime No. 1-CR No. 11 of 1994 dated 9th of
H June, 1994 is appended at Schedule No.-1.
ASHRAFKHAN @BABU MUNNEKHAN PATHAN v. 1047
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
of cartridges, 99 bombs, 110 fuse pins and 110 magazines A
were brought to Ahmedabad and seized by the investigating
agency from various accused persons. These were distributed
to the accused persons for killing and terrorising the Hindu
community during "Jagannath Rath Yatra". All those persons
who were either found in possession or involved in transporting B
or facilitating transportation of those weapons were charge-
sheeted. All these were intended to be used to disturb peace
and communal harmony during "Jagannath Rath Yatra".
6. Ultimately, the investigating agency, on 16th of
December, 1994 submitted first 2 charge-sheet against 14 C
accused persons under Section 120B, 121A, 122, 123 and
188 of Indian Penal Code, Section 3 and 5 of TADA, Section
4, 5 and 6 of Explosive Substances Act, Section 25(1A) of
Arms Act, Section 135 of Customs Act and Section 135 (1) of
Bombay Police Act. Second 3 charge-sheet came to be filed on D
23rd of May, 1995 against 2 accused persons. Investigation
did not end there and third 4 , fourth 5 and fifth" charge-sheets
were submitted on 17th of April, 1996, 20th of December, 1996
and 24th of May, 2000 against 33, 11 and 2 accused persons
respectively. Thus, altogether 62 persons were charge-sheeted. E
7. The Designated Court framed charges against 60
accused persons under Section 120B of the Indian Penal
Code, Section 3 and 5 of TADA, Section 4, 5 and 6 of the
Explosive Substances Act and Section 25 (1A) of the Arms Act. F
However, Accused No. 57 namely, Mohmad Harun @ Munna
2. List of persons charge-sheeted in the first charge-sheet dated 16th of
December, 1994 ios appended at Schedule No.-11.
3. List of persons charge-sheeted in the second charge-sheet dated 23rd
May, 1995 is appended at Schedule No.-111. G
4. List of persons charge-sheeted in the third charge-sheet dated 17th of April,
1996 is appended at Schedule No.-IV.
5. List of persons charge-sheeted in the fourth charge-sheet dated 2oth of
December, 1996 is appended at Schedule No.-V.•
6. List of persons charge-sheeted in the fifth charge-sheet dated 24th of May,
2000 is appended at Schedule No.VI. H
1048 SUPREME COURT REPORTS [2012] 12 S.C.R.
A @ Riyaz @ Chhote Rahim, has been discharged by the
Designated Court by its order dated 24th of August, 2001.
During the course of trial six accused namely, Adambhai
Yusufbhai Mandli (Shaikh), Accused No. 11, Fanes
Aehmohmad Ansari, Accused No. 18, Abdullatif Abdulvahab
B Shaikh, Accused No. 35, lkbal Jabbarkhan Pathan, Accused
No. 38, Firoz @ Firoz Kankani, Accused No. 56 and Jay
Prakash Singh @ Bachchi Singh, Accused No. 60 died. One
accused namely, Accused No. 9, Mohmad Ismail Abdul Shaikh
absconded.
c 8. In order to bring home the charge, the prosecution
altogether examined 70 witnesses and a large number of
documents were also exhibited. The accused were given
opportunity to explain the circumstances appearing in the
evidence against them and their defence was denial simpliciter.
D The Designated Court, on analysis of the evidence, both oral
and documentary, vide its order dated 31st of January, 2002
convicted 11 accused persons 7 under Section 3 and 5 of
TADA, Section 7 and 25(1A) of the Arms Act and Section 4, 5
and 6 of the Explosive Substances Act. They have been
E sentenced to undergo rigorous imprisonment for five years for
the offence punishable under Section 3 and 5 of TADA and fine
with default clause. The Designated Court further sentenced
those convicted under Section 4, 5 and 6 of the Explosive
Substances Act to suffer rigorous imprisonment for five years
F and fine with default clause. They were further sentenced to
undergo rigorous imprisonment for five years and fine with
default clause under Section 7 and 25(1A) of the Arms Act. All
the sentences were directed to run concurrently. The
Designated Court, however, acquitted 41 accused8 of all the
G charges leveled against them.
7. List of persons convicted by Designated Court vide its order dated 31st of
January, 2002 is appended at Schedule No.-Vll.
8. List of persons acquitted by Designated Court vide its order dated 31st of
January, 2002 is appended at Schedule No.VIII.
H All Schedules appended shall from part of the judgment.
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1049
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.)
9. Those found guilty have preferred Criminal Appeal No. A
482 of 2002 (Ashrafkhan @ Babu Munnekhan Pathan & Anr.
Vs. State of Gujarat) and Criminal Appeal Nos. 486-487 of
2002 (Yusufkhan@ Laplap Khuddadkhan Pathan & Ors. Vs.
State of Gujarat). State of Gujarat, aggrieved by the
inadequacy of sentence, preferred Criminal Appeal Nos. 762- B
765 of 2002 (State of Gujarat Vs. Yusufkhan @ Laplap
Khudadattkhan Pathan & Ors.) and also preferred Criminal
Appeal Nos. 766-768 of 2002 (State of Gujarat Vs. Abdul
Khurdush Abdul Gani Shaikh & Ors.) against acquittal.
10. As all these appeals arise out of the same judgment, C
they were heard together and are being disposed of by this
common judgment.
11. We have heard Mr. Sushi! Kumar and Mr. Ranjit Kumar
learned Senior Counsel, Mr. Garvesh Kabra, learned amicus D
curiae, Mr. Sanjay Jain and Ms. Meenakshi Arora, learned
counsel on behalf of the accused. Mr. Yashank Adhyaru,
learned Senior Counsel was heard on behalf of the State of
Gujarat.
E
12. In order to assail the conviction several submissions
were made by the learned counsel representing the accused.
However, as the conviction has to be set aside on a very short
ground, we do not consider it either expedient to incorporate
or answer those submissions.
F
13. We may record here that we have incorporated only
those parts of the prosecution case which have bearing on the
said point and shall discuss hereinafter only those materials
which are relevant for adjudication of the said issue.
G
14. It is the contention of the accused that the first
information report under the provisions of TADA was registered
without approval of the District Superintendent of Police as
contemplated under Section 20-A(1) of TADA and this itself
vitiates the conviction. H
1050 SUPREME COURT REPORTS [2012) 12 S.C.R.
A 15. Plea of the State, however, is that such an approval
was granted by A.R. Suroliya, the Deputy Commissioner of
Police, Crime Branch, who is an officer of the rank of District
Superintendent of Police. Alternatively, the State contends that
Section 20-A of TADA is a two tiered provision which provides
B for approval by the Deputy Commissioner under Section 20-
A(1) and sanction by the Commissioner under Section 20-A(2)
of TADA. In the absence of challenge to the sanction,
challenge only to the approval, to use the counsel's word "would
be curable defect under Section 465 of the Code of Criminal
c Procedure". It has also been pointed out that the accused
having not challenged the sanction granted by the
Commissioner of Police under Section 20-A(2) of TADA, they
cannot assail their conviction on the ground of absence of
approval under Section 20-A(1) by the Deputy Commissioner.
D In order to defend the conviction, the State of Gujarat further
pleads that the Designated Court having taken cognizance and
decided to try the case by itself under Section 18 of TADA, the
prior defects, if any, are rendered irrelevant and cannot be
raised. It has also been pointed out that the Designated Court
having been empowered to take cognizance under Section 14
E of TADA irrespective of absence of compliance of Section 20-
A(1) of TADA, its non-compliance would not be fatal to the
prosecution. It has also been highlighted that several
safeguards have been provided under the scheme of TADA
including the power of the court to take cognizance and
F proceed with the trial and once cognizance has been taken,
defects prior to that cannot be allowed to be raised. In any view
of the matter, according to the State, absence of approval under
Section 20-A(1) of TADA would not vitiate the conviction of the
accused persons under other penal provisions.
G
16. In view of the rival submissions the question for
determination is as to whether the Deputy Commissioner, A.R.,
Suroliya gave prior approval on 9th of June, 1994 or 11th of
August, 1994 for recording the first information report as
H contemplated under Section 20-A(1) of TADA and in case it
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1051
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
is found on facts that no such approval was granted, the effect A
thereof on the conviction of the accused. Further, the effect of
approval by the Additional Chief Secretary, Home Department
on 15th of June, 1994 is also required to be gone into.
17. To prove prior approval by the Deputy Commissioner 8
before the lodging of the first information report, the prosecution
has mainly relied on the evidence of the Inspector of Police U.T.
Brahmbhatt, PW-10 and Deputy Commissioner A.R. Suroliya,
PW-65. Xerox copy of the approval (Exh. 775)has also been
brought on record to establish that. It is not in dispute that C
officer of the rank of Deputy Commissioner is equivalent to
District Superintendent of Police. U.T. Brahmbhatt has stated
in his evidence that "Mr. Suroliya passed an order, sanctioned
the same and an endorsement is also made regarding that".
This witness has been subjected to cross-examination and in
the cross-examination he has admitted that the letter asking for D
approval to investigate and the report under Section 157 of the
Code of Criminal Procedure (hereinafter referred to as 'the
Code') has been lost while producing the same in the Supreme
Court. A.R. Suroliya, PW-65, in his evidence has supported
the case of the prosecution regarding prior approval. While E
explaining the absence of the original approval, this witness has
stated in his evidence that he had gone to the Supreme Court
for hearing of the application filed by the accused Yusuf Laplap
and handed over the original papers to the senior counsel.
According to him, the senior counsel told him that after F
producing the necessary papers before the Supreme Court, the
original papers would be sent back but it has not come and
despite efforts and inquiry, it could not be traced out. According
to his evidence "as the original letter of approval thereof is not
found" the xerox copy thereof was produced. It was marked as G
Exh.775. In the cross-examination, he reiterated that he had
gone to the Supreme Court along with original approval letter
and in the bail application of accused Yusuf Laplap, the said
approval was produced. He feigned ignorance as to whether
entry was made into outward register regarding approval and H
1052 SUPREME COURT REPORTS (2012) 12 S.C.R.
·A denied suggestion that he did not receive any proposal for
approval nor granted the same and with a view to see that the
case does not fall, he had deposed falsely regarding approval.
In his cross-examination he has stated as follows:
"I do not know whether there is any such paper in my office
B
or not for grant of approval for which I have deposed."
18. The Designated Court accepted the case of the
prosecution and held that prior approval was granted by the
Deputy Commissioner under Section 20-A(1) of TADA. While
C doing so, the Designated Court observed as follows:
"... The original documents were sent to the honorable
Supreme Court for the purpose of producing the same in
court in connection with the same petition and thereafter
D the same have been misplaced or lost.. .."
19. It further observed as follows:
".... On receiving certain information from Abdul Wahab
and Yusuf Laplap Mr. Brahmbhatt lodged the FIR against
E seven accused persons and it was sent for the approval
of DCP and on getting the approval under section 20-A(1).
the offence was registered under the TADA Act.
Thereafter on perusal of the deposition, it becomes clear
that there was total compliance of Section 20-A(1) of the
F TADA Act before lodging the FIR and on getting the
approval from DCP the offence was registered.
20. Having given our anxious consideration to the facts of
the present case and the evidence on record, we are of the
opinion that the case of the prosecution that the Deputy
G Commissioner granted approval under Section 20-A(1) of
TADA before registration of the case is fit to be rejected. It is
interesting to note that the Deputy Commissioner AR. Suroliya
has categorically stated in his evidence that he had gone to the
Supreme Court with original records, which included the first
H
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1053
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
information report, on which he had granted approval and A
handed over the same to the counsel. Thereafter, according
to him, the said original first information report got lost or
misplaced. It has been brought to our notice that accused Yusuf
Laplap had not come to this Court for grant of bail and,
therefore, the Deputy Commissioner had no occasion to come B
with the original record in connection with that case. True it is
that some of the accused persons in the case had approached
this Court for various reliefs, but in the face of the evidence of
the Deputy Commissioner A.R. Suroliya that he came along
with the record in connection with the case of the accused Yusufc
Laplap is fit to be rejected. There are various other reasons
also to reject this part of the prosecution story.
21. As stated earlier, charge-sheet in the case has been
filed in five stages. Further, report under Section 157 of the
Code has been filed and all these acts had taken place before D
the alleged loss of the document in the Supreme Court and,
therefore, should have formed part of the charge-sheet and the
report given under Section 157 of the Code. It has also come
on record that later on, the Assistant Commissioner of Police,
Crime Branch had sought for approval of the Deputy E
Commissioner which he granted on 11th of August, 1994. The
communication of the Assistant Commissioner of Police
(Exh.1173) does not refer to any approval granted by the
D~puty Commissioner earlier and, not only that, the Deputy
Commissioner while giving approval on 11th of August, 1994 F
has nowhere whispered that earlier he had already granted the
approval. No explanation is forthcoming from the side of the
prosecution that when Deputy Commissioner A.R. Suroliya had
already granted approval on 9th of June, 1994, what was the
occasion to write to him for grant of. another approval and the G
Deputy Commissioner granting the same. To prove prior
approval, the prosecution has produced the xerox copy.
According to the evidence of Deputy Commissioner A.R.
Suroliya, he had got it prepared from the copy kept in his office.
We wonder as to how and why when a copy of the approval H
1054 SUPREME COURT REPORTS [2012) 12 S.C.R.
A was kept in the office of the Deputy Commissioner itself, xerox
copy was produced. It is relevant here to state that this witness,
in his cross-examination, has admitted that he does not
remember whether "there is any such paper in my office or not
for grant of approval for which" he had deposed.
B
22. In the face of what we have observed above the case
of the prosecution that prior approval was granted on 9th of
June, 1994 is fit to be rejected. It seems that the prosecution
has come out with a story of grant of prior approval under
C Section 20-A(1) of TADA in view of the decision of this Court
in the case of Mohd. Yunus v. State of Gujarat, (1997) 8 SCC
459. There the prosecution has propounded the theory of oral
permission which was rejected. In that case also the
prosecution has pressed into service the permission granted
on 11th of August, 1994 by the same Deputy Commissioner
D i.e. A.R. Suroliya and earlier oral permission. While rejecting
the same this Court has observed as follows:
"4. It is, however, contended by the prosecution that on the
very date when investigation had been made in this case,
E the Commissioner of Police, Ahmedabad was present and
he had given oral permission under Section 20-A(1) of
TADA. We may indicate here that considering the serious
consequences in a criminal case initiated under the
provisions of TADA, oral permission cannot be accepted.
F In our view, Section 20-A(1) must be construed by
indicating that prior approval of the statutory authority
referred to in the said sub-section must be in writing so
that there is transparency in the action of the statutory
authority and there is no occasion for any subterfuge
subsequently by introqucing oral permission."
G
23. From the analysis of the evidence on record, we have
no manner of doubt that the Deputy Commissioner A.R.
Suroliya did not grant prior approval before registration of the
case.
H
ASHRAF KHAN @ BABU MUNNEKHAN PATHAN v. 1055
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.)
24. As stated earlier, the prosecution has relied on another A
approval dated 11th of August, 1994 granted by the Deputy
Commissioner. In order to prove this, reference is made to the
letter of the Assistant Commissioner addressed to the Deputy
Commissioner of Police (Exh. 1173). In the said letter, the
Assistant Commissioner of Police has observed that the Home B
Department of the Government has given approval to apply
sections of TADA and the approval of the Deputy
Commissioner is necessary in this regard. The Deputy
Commissioner of Police on the same day granted approval.
However, Deputy Commissioner A.R. Suroliya, in his evidence, c
has nowhere stated about the approval granted on 11th of
August, 1994 though he had deposed about the approval
granted on 9th of June, 1994. In the face of it, the case of the
prosecution that Deputy Commissioner A.R. Suroliya gave
another approval on 11th of August, 1994 is fit to be rejected. D
25. Another approval said to have been granted by the
Additional Chief Secretary, Home Department for "using TADA
sections" (Exh. 439) has also been proved by the prosecution
to establish compliance of Section 20-A(1) of TADA. Accused
has not joined issue on this count and in view of the evidence E
on record, we have no hesitation in accepting the case of the
prosecution that the Additional Chief Secretary, Home
•
Department, on 15th of June, 1994 had given approval.
However, its consequences on the conviction of the accused
shall be discussed later on. F
26. Having found that the Deputy Commissioner has not
granted the prior approval, as required under Section 20-A(1)
of TADA, we proceed to consider the consequence thereof.
For that, we deem it expedient to reproduce Section 20-A of G
TADA which reads as under:
20-A Cognizance of offence.
(1) Notwithstanding anything contained in the Code, no
information about the commission of an offence under this H
1056 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 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 Inspector-General
of Police, or as the case may be, the Commissioner of
B
Police.
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
C (Prevention) Amendment Act (Act 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
D word in Section 20-A(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
E 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,
F cannot be said to be directory in nature. There are authorities
which support the view we have taken. Reference, in this
connection, can be made to a three-Judge Bench decision of
this Court in the case of Anirudhsinhji Karansinhji Jadeja v,
State of Gujarat, (1995) 5 SCC 302. As in the present case,
G in the said case also the permission granted by the Additional
Chief Secretary was considered. The effect of absence of prior
approval by the District Superintendent of Police and the grant
of approval by the Additional Chief Secretary were not found
to be in conformity with the scheme of TADA. Paragraph 11
of the judgment which is relevant for the purpose reads as ,
H follows:.
ASHRAFKHAN@ BABU MUNNEKHAN PATHAN v. 1057
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.)
"11. The case against the appellants originally was A
registered on 19-3-1995 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 B
under TADA. Why? Was it because he was reluctant to
exercise jurisdiction vested in him by the provision of
Section 20-A{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 c
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 D
20-A{1) was not exercised by the DSP at all."
28. The effect of non-compliance of Section 20-A{1) of
TADA also came up for consideration before this Court in the
case of Mukhtiar Ahmed Ansari v. State (NCT of Delhi),
(2005) 5 SCC 258 and while holding that absence of prior E
approval would vitiate the conviction, the Court observed as
under:
"23. We are unable to uphold the argument. In this case,
the Deputy Commissioner of Police himself had been F
examined as prosecution witness {PW 4). In his
deposition, he had not stated that he had given any such
direction to PW 11 Ram Mehar Singh to register case
against the accused under TADA. On the contrary, he had
expressly stated that he had granted sanction {which was G
in writing) which is at Ext. P-4/1. As already adverted
earlier, it was under the Arms Act and not under TADA.
24. In our opinion, therefore, from the facts of the case, it
cannot be held that prior approval as required by Section
H
1058 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 20-A(1) has been accorded by the competent authority
under TADA All proceedings were, therefore, vitiated. The
contention of the appellant-accused must be upheld and
the conviction of the appellant-accused under TADA must
be set aside."
B
29. In the present case, we have found that no prior
approval was granted by the Deputy Commissioner of Police
and in the face of the judgments of this Court in the case of
Anirudhsinhji Karansinhji Jadeja (supra) and Mukhtiar Ahmed
C Ansari (supra), the conviction of the accused cannot be upheld.
It is worth mentioning that this Court had taken the same view
in the case of Mohd. Yunus (supra) and on fact, having found
that no permission was granted, the charge was held to have
been vitiated. It is worth mentioning here that in Mohd. Yunus
(supra) this Court observed that no oral permission is
D permissible but in Ka/pnath Rai v. State, (1997) 8 SCC 732
this Court held that District Superintendent of Police, in a given
contingency, can grant oral approval and that would satisfy the
requirement of Section 20-A(1) of TADA
E 30. The conflict between the decisions of this Court in
Mohd. Yunus (supra) and Kalpnath Rai (supra) was
considered by a three-Judge Bench in the case of State of A.P.
v. A. Sathyanarayana, (2001) 10 SCC 597 and this Court held
that oral approval is permissible and while over-ruling the
F decision in the case of Mohd. Yunus (supra), upheld the ratio
laid down in the case of Kalpnath Rai (supra) that the prior
approval may be either in writing or oral also. But, at the same
time, the decision in the case of Mohd. Yunus (supra) that prior
approval is sine qua non for prosecution, has not been watered
G down and, in fact, reiterated. This would be evident from
paragraph 8 of the judgment which reads as follows:
"8. Having applied our mind to the aforesaid two judgments
of this Court, we are in approval of the latter judgment and
we hold that it is not the requirement under Section 20-
H A(1) to have the prior approval only in writing. Prior
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1059
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.)
approval is a condition precedent for registering a case. A
but it may be either in writing or oral also, as has been
observed by this Court in Ka/pnath Rai case, 1997 (8)
sec 732 and, therefore, in the case in hand, the learned
Designated Judge was wholly in error in refusing to
register the case under Sections 4 and 5 of TADA. We, B
therefore, set aside the impugned order of the learned
Designated Judge and direct that the matter should be
proceeded with in accordance with law."
(underlining ours) C
31. Another question which needs our attention is the effect
of approval dated 15th of June, 1994 given by the Additional
Chief Secretary, Home Department of the State. Section 20-
A of TADA authorises the District Superintendent of Police to
grant approval for recording the offence and Additional Chief D
Secretary of the Home Department or for that matter, State
Government does not figure in that. The legislature has put trust
on the District Superintendent of Police and therefore it is for
him to uphold that trust and nobody else. Hence approval by
the Additional Chief Secretary is inconsequential and it will not E
save the prosecution on this count, if found vulnerable otherwise.
We may however observe that in order to prevent the abuse of
TADA, the State Government may put other conditions and
prescribe approval by the Government or higher officer in the
hierarchy but the same cannot substitute the requirement of F
approval by the District Superintendent of Police, Not only this,
the District Superintendent of Police is obliged to grant
approval on its own wisdom and outside dictate would vitiate
his decision. This view finds support from the decision of this
Court in the case of Anirudhsinhji Karansinhji Jadeja (Supra). G
32. Now we proceed to consider the submission advanced
by the State that non-compliance of Section 20-A( 1) i.e.
absence of approval of the District Superintendent of Police,
is a curable defect under Section 465 of the Code. We do not
have the slightest hesitation in holding that Section 465 of the H
1060 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Code shall be attracted in the trial of an offence by the
Designated Court under TADA. This would be evident from
Section 14 (3) of TADA which reads as follows:
"S.14.Procedure and powers of Designated Courts
B )()()( )()()( )()()(
(3) Subject to the other provisions of this Act, a Designated
Court shall, for the purpose of trial of any offence, have all
the powers of a Court of Session and shall try such offence
c as if it were a Court of Session so far as may be in
accordance with the procedure prescribed in the Code for
the trial before the Court of Session."
33. From a plain reading of the aforesaid provision it is
D evident that for the purpose of trial Designated Court is a Court '
of Session. It has all the powers of a Court of Session and
while trying the case under TADA, the Designated Court has
to follow the procedure prescribed in the Code for the trial
before a Court of Session. Section 465 of the Code, which
falls in Chapter XXXV, covers cases triable by a Court of
E Session also. Hence, the prosecution can take shelter behind
Section 465 of the Code. But Section 465 of the Code shall
not be a panacea for all error, omission or irregularity. Omission
to grant prior approval for registration of the case under TADA
by the Superintendent of Police is not the kind of omission
F which is covered under Section 465 of the Code. It is a defect
which goes to 'the root of the matter and it is not one of the
curable defects.
34. The submission that absence of sanction under Section
G 20-A(2) by the Commissioner of Police has been held to be a
curable defect and for parity of reasons the absence of
approval under Section 20-A(1) would be curable is also
without substance and reliance on the decision of Lal Singh v.
State of Gujarat, (1998) 5 SCC 529, in this connection, is
H absolutely misconceived. An Act which is harsh, containing
ASHRAFKHAN@BABU MUNNEKHAN PATHAN v. 1061
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
stringent provision and prescribing procedure substantially A
departing from the prevalent ordinary procedural law cannot be
construed liberally. For ensuring rule of law its strict adherence
has to be ensured. In the case of Lal Singh (supra) relied on
by the State, Section 20-A(1) of TADA was not under scanner.
Further, this Court in the said judgment nowhere held that B
absence of sanction under Section 20-A(2) is a curable defect.
In Lal Singh (supra) the question of sanction was not raised
before the Designated Court and sought to be raised before
this Court for the first time which was not allowed. This would
be evident from the following paragraph of the judgment c
"4. Sub-section (2) makes it clear that when the objection
could and should have been raised at an earlier stage in
the proceeding and has not been raised, mere error or
irregularity in any sanction of prosecution becomes
ignorable. We therefore do not permit the appellants to D
raise the plea of defect in sanction."
(underlining ours)
35. The decision of this Court in the case of Ahmad Umar E
Saeed Sheikh v. State of U.P., (1996) 11 SCC 61, relied on
by the State, instead of supporting its contention clearly goes
against it. As observed earlier, the omission lo grant approval
does not come within the purview of Section 465 of the Code
and, hence, the rigors of Section 465 (2) shall be wholly
inapplicable. Otherwise also, the accused have raised this F
point at the earliest. Grant or absence of approval by the
District Superintendent of Police is a mixed question of law and
fact. The very existence of the approval under Section 20-A(1)
of TADA has been questioned by the accused during the
course of trial, which is evident from the trend of cross- G
examination. Not only this, ii was raised before the Designated
Court during argument and has been rejected. Thus, it cannot
be said that it was not raised at the earliest.
36. The plea of the State is that the Commissioner of H
1062 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Police having granted the sanction under Section 20-A(2) of
TADA, the conviction of the accused cannot be held to be bad
only on the ground of absence of approval under Section 20-
A(1) by the Deputy Commissioner. As observed earlier, the
provisions of TADA are stringent and consequences are
B 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
c 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
D successful prosecution both the requirements have to be
complied with. We have not come across any principle nor we
are 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
E 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 20-A(1) of TADA by the Deputy
Commissioner, when the Commissioner of Police had granted
sanction under Section 20-A(2) of TADA.
F
37. As regards submission of the State that the Designated
Court having taken cognizance and decided to try the case by
itself in exercise of the power under Section 18 of TADA, the
prior defects, if any, are rendered irrelevant and cannot be
G raised, has only been noted to be rejected. Section 18 of
TADA confers jurisdiction on the Designated Court to transfer
such cases for the trial of such offences in which it has no
jurisdiction to try and in such cases, the court to which the case
is transferred, may proceed with the trial of the offence as if it
H had taken cognizance of the offence. The power of the
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1063
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.)
Designated Court to transfer the case to be tried by a court of A
competent jurisdiction would not mean that in case the
Designated Court has decided to proceed with the trial, any
defect in trial, cannot be agitated at later stage. Many
ingredients which are required to be established to confer
jurisdiction on a Designated Court are required to be proved B
during trial. At the stage of Section 18 the Designated Court
has to decide as to whether to try the case itself or transfer the
case for trial to another court of competent jurisdiction. For that,
the materials collected during the course of investigation have
only to be seen. The investigating agency, in the present case, c
has come out with a case that prior approval was given for
registration of the case and the allegations made do constitute
an offence under TADA. In the face of it, the Designated Court
had no option than to proceed with the trial. However, the
decision by the Designated Court to proceed with the trial shall D
not prevent the accused to contend in future that they cannot
be validly prosecuted under TADA. We hasten to add that
even in a case which is not fit to be tried by the Designated
Court but it decides to do the same instead of referring the case
to be tried by a court of competent jurisdiction, it will not prevent E
the accused to challenge the trial or conviction later on.
38. The submission of the State that the Designated Court
having been empowered to take cognizance under Section 14
of TADA irrespective of absence of compliance of Section 20-
A(1) of TADA, its non-compliance would not be fatal to the F
prosecution, does not commend us. Section 14 of TADA
confers jurisdiction on a Designated Court to take cognizance
of any offence when the accused being committed to it for trial
upon receiving a complaint of facts which constitute such
offence or upon a police report of such facts. The offence G
under TADA is to be tried by a Designate~ Court. The
Designated Court has all the powers of Court of Session and
ii has to try the offence as if it is a Court of Session. The Code
provides for commitment of the case for trial by the Court of
Session. Section 14(1) of TADA provides that the Designated H
1064 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Court may take cognizance on receiving a complaint of facts
or upon a police report. Had this provision not been there, the
cases under TADA would have been tried by the Designated
Court only after commitment. In any view of the matter, the
accused during the trial under TADA can very well contend that
B their trial is vitiated on one or the other ground notwithstanding
the fact that the Designated Court had taken cognizance.
Taking cognizance by the Designated Court shall not make all
other provisions inconsequential.
39. Lastly, it has been submitted that absence of approval
C under Section 20-A(1) of TADA would not vitiate the conviction
of the accused under other penal provisions. As stated earlier,
the accused persons besides being held guilty under Section
3 and 5 of TADA, have also been found guilty under Section 7
and 25(1A) of the Arms Act and Section 4, 5 and 6 of the
D Explosive Substances Act. According to the State, the
conviction under the Arms Act and the Explosive Substances
Act, therefore, cannot be held to be illegal. It is relevant here
to state that the Designated Court, besides trying the case
under TADA, can also try any other offence with which the
E accused may be charged at the same trial if the offence is
connected with the offence under TADA. When the Designated
Court had the power to try offences under TADA as well as
other offences, it is implicit that it has the power to convict also
and that conviction is permissible to be ordered under TADA
F or other penal laws or both. In our opinion it is not necessary
for the Designated Court to first order conviction under TADA
and only thereafter under other penal law. In view of the five-
Judge Constitution Bench judgment of this Court in Prakash
Kumar v. State of Gujarat, (2005) 2 SCC 409, this point does
G not need further elaboration. In the said case this Court has
observed that "the Designated Court is empowered to convict
the accused for the offence under any other law notwithstanding
the fact that no offence under TADA is made out." This would
be evident from paragraph 37 of the judgment which reads as
H follows:
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1065
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
"37. The legislative intendment underlying Sections 12(1) A
and (2) is clearly discernible, to empower the Designated
Court to try and convict the accused for offences committed
under any other law along with offences committed under
the Act, if the offence is connected with such other offence.
The language "if the offence is connected with such other B
offence" employed in Section 12(1) of the Act has great
significance. The necessary corollary is that once the other
offence is connected with the offence under TADA and if
the accused is charged under the Code and tried together
in the same trial, the Designated Court is empowered to c
convict the accused for the offence under any other law,
notwithstanding the fact that no offence under TADA is
made out. This could be the only intendment of the
legislature. Tq hold otherwise, would amount to rewrite or
recast legislation and read something into it which is not D
there."
40. We have held the conviction of the accused to have
been vitiated on account of non-compliance of Section 20-A(1)
of TADA and thus, it may be permissible in law to maintain the
conviction under the Arms Act and the Explosive Substances E
Act but that shall only be possible when there are legally
admissible evidence to establish those charges. The
Designated Court has only relied on the confessions recorded
under TADA to convict the accused for offences under the Arms
Act and the Explosive Substances Act. In view of our finding F
that their conviction is vitiated on account of non-compliance
of the mandatory requirement of prior approval under Section
20-A(1) of TADA, the confessions recorded cannot be looked
into to establish the guilt under the aforesaid Acts. Hence, the
conviction of the accused under Section 7 and 25(1A) of the G
Arms Act and Section 4, 5 and 6 of the Explosive Substances
Act cannot also be allowed to stand.
41 . As we have held the conviction and sentence of the
accused to be illegal and unsustainable, the appeals filed by H
1066 SUPREME COURT REPORTS [2012] 12 S.C.R.
A the State against acquittal and inadequacy of sentence have
necessarily to be dismissed.
42. We appreciate the anxiety of the police officers
entrusted with the task of preventing terrorism and the difficulty
8 faced by them. Terrorism is a crime far serious in nature, more
graver in impact and highly dangerous in consequence. It can
put the nation in shock, create fear and panic and disrupt
communal peace and harmony. This task becomes more
difficult when it is done by organized group with outside support.
C Had the investigating agency not succeeded in seizing the
arms and explosives, the destruction would have been
enorr.ious. However, while resorting to TADA, the safeguards
provided therein must scrupulously be followed. In the country
of Mahatma, "means are more important than the end".
Invocation of TADA without following the safeguards resulting
D into acquittal gives an opportunity to many and also to the
enemies of the country to propagate that it has been misused
and abused. District Superintendent of Police and Inspector
General of Police and all others entrusted with the task of
operating the law must not do anything which allows its misuse
E and abuse and ensure that no innocent person has the feeling
of sufferance only because "My name is Khan, but I am not a
terrorist".
43. The facts of the case might induce mournful reflection
F how an attempt by the investigating agency charged with the
duty of preventing terrorism and securing conviction has been
frustrated by what is popularly called a technical error. We
emphasize and deem it necessary to repeat that the gravity of
the evil to the community from terrorism can never furnish an
adequate reason for invading the personal liberty, except in
G accordance with the procedure established by the Constitution
and the laws.
44. We have been told that many of the accused, because
of poverty or for the reason that they had already undergone
H the sentence, have not preferred appeals before this Court.
ASHRAFKHAN@BABU MUNNEKHAN PATHAN v. 1067
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
Further, this Court had not gone into the merits of the appeals A
preferred by few convicts on the ground that they have already
served out the sentence and released thereafter. The view
which we have taken goes to the root of the matter and vitiates
the conviction and, hence, we deem it expedient to grant benefit
of this judgment to all those accused who have been lield guilty B
and not preferred appeal and also those .ccavicts whose
appeals have been dismissed by this Court as infructuous on
the ground that they had already undergone the sentence
awarded.
45. In the result, we allow the appeals preferred by those C
accused who have been convicted and sentenced by the
Designated Court and set aside the judgment and order of their
conviction and sentence. However, we dismiss the appeals
preferred by the State against the inadequacy of sentence and
acquittal of some of the accused persons. D
K.K.T. Appeals disposed of.
1068 SUPREME COURT REPORTS [2012] 12 S.C.R.
A SCHEDULE· I
List of persons named in Crime No. 1-CR No. 11 of 1994 dated
9th of June, 1994.
Sr. No. Names of accused persons Accused Nos.
B
1 Yusufkhan Khudadatkhan Pathan Accused No. 1
@ Laplap
2 Abdul Latif Abdul Vahab Shaikh Accused No. 2
c
3 Rasulkhan @ Yaz Accused No. 3
4 A.H.C. Sirajmiya Akbarmiya Accused No. 4
@ Siraj Dadhi
D Accused No. 5
5 lmtiyaz
6 GulaI Accused No. 6
7 Sattar Battery @ Sattar Chacha Accused No. 7
E
SCHEDULE - II
List of persons named in the First Charge-Sheet dated 16th
of December, 1994
F
Sr.No. Names of accused persons Accused Nos.
1 Yusufkhan @ Yusuf Laplap Accused No. 1
Khudadatkhan Pathan
G 2 Shirajmiya Akbarmiya Thakore Accused No. 2
3 Abdulkhurdush Abdulgani Shaikh Accused No. 3
4 Mohmad Farukh @ Farukbawa Accused No. 4
H Allarakha Shaikh
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1069
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
5 Sajidali @ Benimohmadali Saiyed Accused No. 5 A·
6 Anwarkhan Mohmadkhan Pathan Accused No. 6
7 Mohmad Jalaluddin @ Jalababa Accused No. 7
Tamizuddin Saiyed B
8 Gulamkadar Gulamhusain Shaikh Accused No. 8
9 Mohmad Ismail Abdul Vahab Accused No. 9
Shaikh
c
10 Haiderkhan Lalkhan Pathan Accused No. 10
11 Adambhai Yusufbhai Mandli Accused No. 11
(Shaikh)
D
12. Mohmad Soyeb @ Soyeb Baba Accused No. 12
Abdul Gani Shaikh
13. Iqbal @ Bapu Saiyed Husain Accused No. 13
Saiyed E
14. Mohmad Hanif @ Anudin Husain Accused No. 14
Miya Shaikh
SCHEDULE - Ill F
List of persons named in the Second Charge-Sheet dated 23rd
of May, 1995
Sr.No. Names of accused persons Accused Nos.
G
1 Gajanfarkhan @ Gajukhan Accused No. 15
2 Asrafkhan @ Babu Accused No. 16
H
1070 SUPREME COURT REPORTS [2012] 12 S.C.R.
A SCHEDULE - IV
List of persons named in the Third Charge-Sheet dated 17th
of April, 1996
Sr.No. Names of accused persons Accused Nos.
B
1 Munavar Ullakhan @ lmtiyaz Accused No. 17
Ullakhan @ Pappu
2 Fanes Aehmohmad Ansari Accused No. 18
c 3 Afzalhusain Accused No. 19
4 Samimulla @ Sammu Accused No. 20
5 Barikkhan @ Abdulsalim Accused No. 21
D 6 Babukhan @ Lala Accused No. 22
7 Maksud Ahmed Fatehahmed Accused No. 23
Shaikh
8 Mohmedsafi Abdul Rahman Accused No. 24
E Saikh
9 Hafizudin Fajiudin Kaji Accused No. 25
10 Sohrabduin @ Salim Accused No. 26
F 11 Abdulgafar @ Gafar Accused No. 27
12 Abdulkayam Nizamudin Shaikh Accused No. 128
13 Mohmed Rafik @ Haji Rafikbhai Accused No. 29
Kapadia
G
14 Usmangani Musabhai Vohra Accused No. 30
15 Abdulvahab Abdulmajid Baloch Accused No. 31
16 Abdul Sattar @ Sattar Battery Accused No. 32
H
ASHRAFKHAN @BABU MUNNEKHAN PATHAN v. 1071
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
17 Abdulrauf @ Rauf Accused No. 33 A
18 lmtiyazahmed Nurharanmiya Accused No. 34
Kadri
19 Abdullatif Abdulvahab Shaikh Accused No. 35 B
20 Sabbirhusain Husainmiya Shaikh Accused No. 36
21 Mustak Ahmed lstiyak Ahmed Accused No. 37
Pathan
c
22 lkbal Jabbarkhan Pathan Accused No. 38
23 Ayub@ Lala Accused No. 39
24 Kadarbhai Musabhai Mandli Accused No. 40 D
25 Musabhai Yusufbhai Madli Accused No. 41
26 Daubhai Musabhia Shaikh Accused No. 42
E
27 Mohmedamin @ Amin Chobeli Accused No. 43
28 Musrafkhan Gorekhan Pathan Accused No. 44
29 Mehmood @ Pepa Pelhwan Accused No. 45
Husenkhan Nilgaramal F
30 Sahibudin @ Konjibaba Accused No. 46
31 Husanbhai @ Bhajia Accused No. 47
G
32 Ahmedbhai Haji Kasambhai Accused No. 48
Ajmeri
33 Gulam Mohmed @ Gulu Accused No. 49
H
1072 SUPREME COURT REPORTS (2012) 12 S.C.R.
.A SCHEDULE - V
List of persons named in the Fourth Charge-Sheet dated
20th of December, 1996
Sr.No. Names of accused persons Accused Nos
B
1 Mahebub Bag @ Mehbub Senior Accused No. 50
2 Mohmad Rafik @ R.D. @ Accused No. 51
Mustak @ Nazim
c 3 Gulam Mohmad@ Gula! @ Arif Accused No. 52
4 lmtiyaz@ Fatush Accused No. 53
5 Parminder Singh @ Kaka Accused No. 54
D 6 Aminkhan @ Alamkhan Accused No. 55
7 Firoz @ Firoz Kankani Accused No. 56
8 Mohmad Harun @ Munna @ Accused No. 57
Riyaz @ Chhote Rahim
E
9 Mujfarkhan @ Nasir Luhar Accused No. 58
10 Mohmad Yakil @ Yakil Accused No. 59
11 Jay Prakash Singh @ Bachhi Accused No. 60
F Sing
SCHEDULE - VI
List of persons named in the Fifth Charge-Sheet dated
24th of May, 1994
G
Sr.No. Names of accused persons Accused Nos
1 Jahangir Khan Fazalkhan Pathan Accused No. 61
.. •
2 Mohmad Anwarkhan @ Rushi Accused No. 62
H Pathan
ASHRAFKHAN @ BABU MUNNEKHAN PATHAN v. 1073
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
SCHEDULE - VII A
List of persons convicted by Designated Court vide its
order dated 31st of January, 2002
Sr.No. Names of accused persons Accused Nos.
B
1 Yusufkhan @Yusuf Laplap Accused No. 1
Khudadadkhan Pathan
2 Shirajmiya Akbarmiya Thakore Accused No. 2
c
3 Sajidali @ Deni Mohammedali Accused No. 5
Saiyed
4 Iqbal @ Bapu Saiyedhussein Accused No. 13
Saiyed
D
5 Gajnafarkhan @ Gallukhan Accused No. 15
Sabdrkhan Pathan
6 Asharafkhan @ Babu Munnakhan Accused No. 16
Pathan E
7 Shohrabuddin @ Salim Accused No. 26
Anvaruddin Shaikh
8 Abdulsattar @ Sattar Battery Accused No. 32 F
Abdulgani Shaikh
9 Abdul Raoof @ Raoof Abdul Accused No. 33
Kadar Shaikh
Accused No. 47
G
10 Hussainbhai @ Bhajiya
Mohammedbhai Patani
11 Mujffarkhan @ Nashir LuhttL Accused No. 58
Umardarajkhan Pathan
H
1074 SUPREME COURT REPORTS [2012] 12 S.C.R.
A SCHEDULE - VIII
List of persons acquitted by Designated Court vide its
order dated 31st of January, 2002
Sr.No. Names of accused persons Accused Nos.
B
1 Abdul Khurdush Abdul Gani Accused No. 3
Shaikh
2 Mohammed Faruq@ Accused No. 4
Faruqbava Allarakha
c 3 Anvarkhan Mohammedkhan Accused No. 6
Pathan
4 Mohammed Jalaluddin @ Accused No. 7
Jalalbaba Tamijuddin Saiyed
D
5 Gulam Kadar Gulam Hussain Accused No. 8
Shaikh
6 Hyderkhan Lalkhan Pathan Accused No. 10
7 Mohammed Soeb @ Soebbava Accused No. 12
E Abdul Gani Shaikh
8 Mohammed Hanif @ Anudi Accused No. 14
Husseinmiya Shaikh
9 Munavarullakhan @ Accused No. 17
F lmtiyazullakhan @ Pappu
Mohammed Safiullakhan
10 Afzalhussain Ajgarhussein Accused No. 19
Rangrej
G 11 Shamtullakhan @ Sammu Accused No. 20
Mohammed Safiulla Pathan
12 Bariqkhan @ Abdul Salim Accused No. 21
Hussein Khan @ Abdul Hussein
H Shaikh
ASHRAFKHAN@ BABU MUNNEKHAN PATHAN v. 1075
STATE OF GUJARAT [CHANDRAMAULI KR. PRASAD, J.]
13 Babukhan @ Lala Niyajkhan Accused No. 22 A
@ Niyajmohammed Pathan
14 Maksud Ahmed Accused No. 23
Fatehmohammed Shaikh
15 Mohammed Safi Abdul Rehman Accused No. 24 B
Saikh
16 Hafizuddin Fazluddin Kazi Accused No. 25
17 Abdulgafar @ Gafar Party Accused No. 27
Mohammed Rafiq Shaikh
c
18 Abdul Kaiyum Nizamuddin Accused No. 28
Shaikh
19 Mohammed Rafiq @ Haji Accused No. 29 D
Rafiqbhai Husseinbhai Kapadia
.
20 Usmangani Musabhai Vora Accused No. 30
21 Abdul Wahab Abdul Majid Baloch Accused No. 31
E
22 lmtieaz Ahmed Noorhadanmiya Accused No. 34
Kadari
23 Sabbirhussein Husseinmiya Accused No. 36
Shaikh
F
24 Mustaq Ahmed lstiyaq Ahmed Accused No. 37
Pathan
25 Aiyub @ Lala Yusufbhai Mandali Accused No. 39
26 Kadarbhai Musabhai Mandali Accused No. 40 G
27 Musabhai Yusufbhai Mandali Accused No. 41
28 Daoodbhai Musabhai Shaikh Accused No. 42
H
1076 SUPREME COURT REPORTS [2012) 12 S.C.R.
A 29 Mohammed Amin @ Amin Accused No. 43
Chotely Rahimmiya
30 Musharrafkhan Gorekhan Pathan Accused No. 44
31 Mehmood @ Pepa Accused No. 45
8 Pahelvan Hussainkhan
Nilgadamal
32 Shahbuddin @ Kanijbaba Accused No. 46
Badruddin Shaikh
c 33 Ahmedbhai Haji Kasambhai Accused No. 48
Ajmeri
34 Gulammohammed @ Gulu Accused No. 49
Gulam Hyder Momin
D
35 Mehboobbeg @ Mehboob Accused No. 50
Senior Chhotubeg Mogal
36 Mohammed Rafiq @ R.D. Accused No. 51
@ Mustaq @ Nazim Majidkhan
E
37 Gulam Mohammed @ Gulal Accused No. 52
@ Arif Abdul Kadar Shaikh
38 lmtiyaz@ Fetas Ibrahim lsmial Accused No. 53
Bhathiyara
F
39 Parmindarsing @ Kaka Accused No. 54
Maliksing Sikh
40 Aminkhan @ Alamkhan Accused No. 55
G Mojkhan Pathan
41 Mohammed Yaakil @ Aakil Accused No. 59
Maiyuddin Malek
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