Holding

Section 20‑A(1) of TADA is a mandatory provision that authorises only the District Superintendent of Police to approve the recording of information, and any approval by any other authority is invalid, rendering the TADA convictions void and, in the absence of sufficient evidence, the ancillary IPC and Explosives Act convictions unsustainable.

Summary

The case arose from twin bomb blasts in Surat in 1993 for which several accused were convicted under the Indian Penal Code, the Explosives Substances Act and the Terrorist and Disruptive Activities (Prevention) Act (TADA). The trial court recorded the offences under TADA after obtaining approvals from the Additional Chief Secretary, Home Department and the Additional Police Commissioner, rather than from the District Superintendent of Police as mandated by Section 20‑A(1) of TADA. The Supreme Court held that Section 20‑A(1) is a mandatory provision that vests the power of approval exclusively in the District Superintendent of Police; any approval by a higher or different authority is ultra vires and invalid. Because this statutory requirement was breached, the TADA convictions were vitiated, and the evidence was insufficient to sustain convictions under the IPC and the Explosives Act. Consequently, the Court set aside the convictions and ordered the release of the appellants, while dismissing the State’s appeals for enhancement of sentences.

Issues considered

The validity of approvals for recording information under TADA obtained from the Additional Chief Secretary and the Additional Police Commissioner instead of the District Superintendent of Police.
Whether the breach of the mandatory provision of Section 20‑A(1) of TADA vitiates the trial and conviction under TADA.
Whether convictions under the IPC and the Explosives Substances Act can be sustained despite the procedural defect in TADA proceedings.
Whether the timing of the FIRs (registered before Section 20‑A came into force) obviates the need for prior approval.
Whether compliance with Section 20‑A(2) (sanction of the IG/CP) can cure the defect in Section 20‑A(1).

Legislation cited

Arms Acts. 25(1)A, s. 27
Code of Criminal Procedures. 465
Explosives Substances Acts. 3, s. 4, s. 5
Indian Penal Code, 1860s. 120(8), s. 302, s. 307, s. 324, s. 326
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 20-A, s. 3, s. 4, s. 5

Subjects

TADASection 20-Amandatory statutory provisionapproval authorityDistrict Superintendent of Policeprocedural defectconviction vitiatedIPCExplosives Substances Actappeal

Judgment

[2014] 9 S.C.R. 364

A HUSSEIN GHADIALLY @M.H.G.A. SHAIKH & ORS.
v.
STATE OF GUJARAT
(Criminal Appeal No.92 of 2009)

JULY 18, 2014
B
[T.S. THAKUR AND C. NAGAPPAN, JJ.]

Terrorist and Disruptive Activities (Prevention) Act, 1987
- s. 20A - Cognizance of offence - Registration of FIR - Prior
C approval of District Superintendent of Police - Mandatory or
directory - Held: Is mandatory - s. 20A forbids recording of
information about the commission of offences under TADA
by the Police without the prior approval of the District
Superintendent of Police - When the statute vests the grant
D of approval in an authority specifically designated for the
purpose, no one except the authority so designated, can
exercise that power, whether superior or inferior- Exercise of
the power granting or refusinQ approval u/s. 20-A (1) in its very
nature casts a duty upon the officer concerned to evaluate the
E information and determine having regard to all attendant
circumstances whether or not a c;ase for invoking the
provisions of TADA is made out - Exercise of that power by
anyone other than the designated authority, would amount to
F such other authority clutching at the jurisdiction of the
designated officer - On facts, power of approval vested in the
District Superintendent of Police could not be exercised by
either the Government or the Additional Police Commissioner
- Requirement of a mandatory statutory provision having been
G violated, the trial and conviction of the appellants for offences
under the TADA vitiated - While there may be evidence
regarding recovery of some of the weapons but it would not
be sufficient to justify the conviction of the appellants - Even
otherwise the recovery of the weapons is also not satisfactorily
H 364
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 365
OF GUJARAT
proved by cogent and reliable evidence - Thus, conviction A
of the appellants cannot be sustained and is set aside -
Penal Code, 1860 - Explosives Substances Act.
Twin bomb blasts took place in city 'S'. The trial and
the conviction of the accused was carried out for the 8
commission of offences under Penal Code, 1860,
Explosives Substances Act and Terrorists and Disruptive
Activities (Preventive) Act, 1985 (TADA). The trial court
found some of the accused persons guilty and were
sentenced to imprisonment ranging between 10 to 20 c
years. Some of the accused were a·cquitted giving them
the benefit of doubt. With regard to the case registered
for the first blast, the Additional Chief Secretary, Home
Department gave approval for recording of information
regarding commission of offence under TADA and D
insofar as the second blast, the State Government and
the Additional Police Commissioner approved application
.
of the provisions of TADA.
The question which arose for consideration in these
appeals was whether the approvals by the State E
Government or Additional Police Commissioner can be
said to be sufficient compliance with the provisions of
Section 20-A of Terrorists and Disruptive Activities
(Preventive) Act, 1985, when under the said section the
power of approval is vested in District Superintendent of F
Police?
Disposing of the appeals, the Court
HELD: 1.1. A careful reading of the section 20-A of G
the Terrorists and Disruptive Activities Act, 1985 leaves
no manner of doubt that the provision starts with a non
obstante clause and is couched in negative phraseology.
It forbids recording of information about the commission
of offences under TADA by the Police without the prior H
366 .SUPREME COURT REPORTS (2014] 9 S.C.R.
~

A approval of the District Superintendent of Police. The
power of approval vested in the District Superintendent
of Police could not be exercised by either the
Government or the Additional Police Commissioner, Surat
in the instant case. Firstly because the statute vests the
B grant of approval in an authority specifically' designated
for the purpose. That being so, no one except the
authority so designated, can exercise that power.
Permitting exercise of the power by any other authority
whether superior or inferior to the authority designated
C by the Statute will have the effect of re-writing the
provision and defeating the legislature purpose behind
the same-a course that is legally impermissible. [Para 17]
[383-C-F]

D Joint Action Committee of Air Line Pilots' Association of
India (ALPAI) and Ors. V. Director General of Civil Aviation
and Ors. 2011 (5) SCR 1019 : (2011) 5 sec 435 - referred
to.
1.2. Secondly, because exercise of the power vested
E in the District Superintendent of Police- under Section 20-
A (1) would involve application of mind by the officer
concerned to the material placed before him on the basis
whereof, alone a decision whether or not information
regarding commission of an offence under TADA should
F be recorded can be taken. Exercise of the power granting
or refusing approval under Section 20-A (1) ·in its very
nature casts a duty upon the officer concerned to
evaluate the information and determine having regard to
all attendant circumstances whether or not a case for
G invoking the provisions of TADA is made out. Exercise
of that power by anyone other than the designated
authority viz. the District Superintendent of Police would
amount to such other authority clutching at the
H jurisdiction of the designated officer, no matter such
HUSSEIN GHADIALL'?,@M.H.G.A. SHAIKH v. STATE 367
• OF GUJARAT
'
officer or authority purportiri~o exercise that power is A
superior in rank and position to the officer authorised by
law to take the decision. [Para 1S] [383-H; 384-A-D]

1.3. Thirdly, because if the Statute provides for a thing
to be done in a particular manner, then it must be done B
in that manner alone. All other modes or methods of
doing that thing must be deemed to have been
prohibited. [Para 19] [384-D, E]

1.4. The requirement of a mandatory statutory C
provision ~aving been violated, the trial and conviction
of the petitioners for offences under the TADA must be
held to have been vitiated on that account. The two
incidents had taken place and cases registered regarding
the same under TADA before Section 20-A (1) came on
0
the statute book, but the fact remains that the provisions
of TADA were removed from t,he reports pursuant to the
recommendations of the Review Committee. By the time
fresh evidence came to light requiring re-introduction of
the provisions of the Act approval for recording E
information regarding commission of offences under
TADA, had bec·om~ n.ecessary. The fact that such
approval was considered necessary even by the
inv.estigating agency and was prayed for, only shows that
the authorities were aware of the requirement of law and F
had consciously attempted to comply with the said
requirement no matter by applying for such approval to
an a1:1thority not compet~rit to grant the same. [Para 27]
(389-C-G]

1.5. It was submitted that even if the provisions of G
TADA were not available against the appellants the
prosecution could still succeed in sustaining .the
conviction of the appellants under IPC and the Explosive
Substances Act. That would indeed be so, provided there H
368 SUPREME COURT REPORTS (2014] 9 S.C.R.

A is enough evidence on record to support that course of
action. When called upon to show evidence that could
warrant conviction of the appellants independent of
provisions of TADA and the confessional statements of
the accused allegedly recorded . under the said
B provisions, the counsel fairly conceded that while there
may be evidence regarding recovery of some of the
weapons the same would not by itself be sufficient to
justify the conviction of the appellants. Even otherwise
the recovery of the weapons is also not satisfactorily
C proved by cogent and reliable evidence. Such being the
position, there is no doubt that the conviction of the
appellants cannot be sustained. [Para 28) (389-G-H; 390-
A-C]

o Anirudhsinhji & Anr. v. State of Gujarat 1995 (2) Suppl.
SCR 637 : (1995) 5 SCC 302 - affirmed.

Rao Shiv Bahadur Singh & Anr. v. State of Vindhya
Pradesh 1954 SCR 1038: AIR 1954 SC 322; State of Uttar
E Pradesh v. Singhara Singh and Ors. AIR 1964 SC 358;
Chandra Kishore Jha v. Mahavir Prasad & Qrs. 1999 (8) SC
266, Dhananjaya Reddy v. State of Karnataka 2001 (2) SCR
399: 2001 (4) SCC 9; Gujarat Urja Vikas Nigam Ltd. v. Essar
Power Ltd. 2008 (4) SCR 822: 2008 (4) SCC 755 - relied on.
F Commissioner of Police v. Gordhandas Bhanji 1952
SCR 135 : AIR 1952 SC 16; Manohar Lall (dead) by Lrs. V.
Ugrasen (dead) by Lrs. and Ors. 2010 (7) SCR 346 :(2010)
11 SCC 557; Rangku Dutta @ Ranjan Kumar Dutta v. State
of Assam 2011 (8) SCR 639 : (2011) 6 SCC 358; Ahmad
G Umar Saeed Sheikh v. ~fate of U.P. 1996 (9) Suppl. SCR
53 :(1996) 11 SCC 61; Ashrafkhan @ Babu Munnekhan
Pathan and Anr. v. State of Maharashtra 2012 (12) SCR 1033
: (2012) 11 SCC 606; Mohd. Iqbal M. Shaikh & Ors. v. The
H State of Maharashtra 1998 (2) SCR 734: (1998).4 SCC 494;
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 369
OF GUJARAT
Manjit Singh@ Mange CBI, through its SP 2011 (1) SCR A
997 : (2011) 11 sec 578 - referred to.

Taylor v. Taylor (1876) 1 Ch. 04-26; Nazir Ahmed v. King
Emperor AIR 1936 PC 253 - referred to.
B
Case Law Reference:
2011 (5) SCR 1019 Referred to Para 17
1954 SCR 1038 Relied on Para 19
AIR 1964 SC 358 Relied on Para 19 c
1999 (8) SC 266 Relied on Para 19
2001 (2) SCR 399 Relied on Para 19
2008 (4) SCR 822 Relied on Para 19
D
1952 SCR 135 Referred to Para 21
2010 (7) SCR 346 Referred to Para 22
2011 (8) SCR 639 Referred to Para 23
1996 (9) Suppl. SCR 53 Referred to Para 24 E
2012 (12) SCR 1033 Referred to Para 24
1998 (2) SCR 734 Referred to Para 26
2011 (1) SCR997 Referred to Para 26
F
1995 (2) Suppl. SCR 637 Affirmed Para 26
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No.92 of 2009

From the Judgment and Order dated 04.10.2008 of the G
Judge Designated Court at Surat in Criminal (TADA) Case No.
41/1995.

WITH

Crl. A. Nos. 110, 303-304, 305, 432-433. 658, 659 of 2009. H
370 SUPREME COURT REPORTS [2014] 9 S.C.R.

A Sushi! Kumar, Yashank Adhyaru, Aditya Kumar, Aditya
Kumar, Sanjay Jain, Sadhana Sandhu, Hemantika Wahi, Archi
Agnihotri, Pinky Behera, Puja Singh, Nupur Kanungo, Javed-
Ur-Rehman, Bina Madhavan, Praseena E: Joseph, Salim A. ·
lnamdar (for Lawyer's Knit & Co.), Sudharshan Singh Rawat,
B Anurag Ahluwalia for the appearing parties.

The Judgment of the Court was delivered by

T.S. THAKUR, J. 1. Common questions of law arise for
C consideration in these appeals which were heard together and
shall stand disposed of by this common order. The appeals
arise out of two separate judgments delivered by the
Designated Court at Surat both dated 4th October, 2008
whereby the Designated Court has while acquitting some of the
D accused persons convicted the rest and sentenced them to
imprisonment for different periods ranging between 10 to 20
years. In Criminal (TADA) case No.41 of 1995 disposed of with
Criminal (TADA) case No.1 of 2000 arising out of C.R. No.70
of 1993 relevant to Criminal Appeals No.92 of 2009 and 658
E of 2009, the Designated Court has convicted the appellants in
those appeals while respondents in Criminal Appeal No.305
of 2009 filed by the State of Gujarat ag~inst the very same
judgment have been acquitted. In Criminal Appeals No.432-33
of 2009 the State has sought enhancement of the sentence
F awarded to those convicted by the Trial Court.

2. In Criminal (TADA) case No.59 of 1995 and 2 of 2000
arising out of C.R. No.32 of 1993 the Designated Court has
similarly convicted some of the accused persons who are
(appellants before us in Criminal Appeals No.110 of 2009 and
G 659 of 2009). The State has also assailed in the appeals filed
by it the judgment of the Trial Court and sought enhancement
of the sentence awarded to those convicted by it in Criminal
Appeals No.303-304 of 2009.
H
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 371
OF GUJARAT [T.S. THAKUR, J.]
3. The facts giving rise to the registration of LC.Rs. No.32 A
and 70 of 1993 at Var.ccha and Surat Railway Police Stations
in the State of Gujarat respectively leading to the arrest of those
accused of committing the offences and their eventual
conviction by the Trial Court. have been set out at great length
by the said Court below in the two judgments and orders B
impugned before us. We need not, therefore, recapitulate the
entire factual backdrop in which the appellants were tried, found
guilty and sentenced except to the extent it is absolutely
necessary to do so. Suffice it to say that the two blasts one at
Mini Hira Bazar, Varccha Road, Surat and the other at Platform C
1, Surat Railway Station took place on 28th January, 1993 and
22nd April, 1993 respectively. In the incident that took place at
Mini Hira Bazar, Varccha Road, one minor girl barely 8.years-··-
old lost her life while as many as 11 others were injured. The
second incident at the Surat Railway Station relevant to ICR D
No.70 of 1993 left as many as 38 persons injured, some of
them grievously. The prosecution case is that the genesis of
the two incidents mentioned above lay in the demolition of the
Babri Masjid on 6th December, 1992 at Ayodhaya which had
led to wide"spread communal riots in several parts of the E
country. These riots took place even in the city of Surat causing
damage to life and property to the Muslim community. With a
view to giving relief to those affected by such riots a Relief
Camp at Ranitalao area in the city of Surat was set up mainly
by the accused persons including Hussein Ghadially, Iqbal F
Wadiwala, Mohammad Surti, Hanif Tiger and others. A
makeshift office adjacent to the relief camp provided to the
accused persons space to hold their meetings.

4. The prosecution alleges that on account of riots and G
damage suffered by the Muslims, the accused persons nurtured
a feeling that the Government and the police will not be able to
protect their community. The prosecution's further case is that
in order to protect the members of the Muslim community and
H
372 SUPREME COURT REPORTS [2014] 9 S.C.R.

A also to retaliate against the majority community the accused
persons initially decided to collect firearms, swords, spears,
iron rods, country made bombs and gelatin bombs etc. and to
distribute the same to those who had converged in_the relief
camp. It was also decided to import firearms, bombs etc. from
B Abdul Latif, a notorious gangster of Ahmedabad who was
known to accused No.1 Hussain Ghadially. Abdul Latif was then
in Dubai but later arrested and produced before the
Designated Court. He was killed in a police encounter during
the trial.
c
5. According to prosecution appellant-Hussein Ghadially
and his wife alongwith Iqbal Wadiwala (A-2) went to
Ahmedabad in Maruti Van No. GJ SA 5178 driven by one
Bhupat Makwana. In order to carry arms and ammunition
D including AK 47 rifles, cartridges and bomb etc. a concealed
compartment was created in the Maruti Van that was owned
by appellant-Iqbal Wadiwala. The arms and ammunition
supplied by Abdul Latif (since deceased) were then placed in
the secret chamber of the vehicle and transported to Surat. The
E prosecution alleges that the arms and ammunition to be used
were kept at different places for use to wrsak vengeance
against the majority community. The blasts that took place on
28th January, 1993 at Mini Hira Bazar, Varccha Road, Surat
and at Surat Railway Station on 22nd April, 1993 were,
F according to the prosecution, the culmination of the conspiracy
hatched by the accused and the efforts made by them including
their active participation in the sordid sequence leading up to
grievous injuries to several persons including the killing of an
innocent child.
G
6. The prosecution further alleges that investigation into the
crime by the Surat Railway Police did not lead to the
apprehension of the real culprits. This forced the Director
General of Police of the State of Gujarat to constitute an Action
H
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 373
OF GUJARAT [T.S. THAKUR, J.]
Group for inquiry and investigation into the crime. In the course A
of investigation by the Action Group, one Mushtaq Patel was
apprehended on 12th March, 1995 in connection with a· case
registered in Umra Police Station under the Arms Act. In the
course of interrogation the said Mushtaq Patel revealed
8
information relating to the bomb blast at Platform No.1 at Surat
Railway Station. This gave the Action Group a break that led
to a series of arrest of person~ responsible for the blasts and
recovery of arms and ammunition comprising as many as 6
foreign grenades, 2 AK 47 rifles and 199 live cartridges. The C
arrest of accused persons and the seizure of arms and
ammunition in turn led to invocation of provisions of Terrorists
and Disruptive Activities (Prevention) Act by orders passed by
the Additional Commissioner of Police, G Division, Surat city
and/or by the State Government.
D
7. Confessional statements of the accused persons were
after the application of the provisions of the said Act recorded
by the Additional Commissioner of Police and separate
chargesheet in both FIRs filed before the Designated Court in
which accused Yusuf Dadu was shown as absconding. Yusuf E
Dadu was subsequently apprehended and a supplementary
chargesheet in both the cases filed against him which came
to be numbered as TADA cases No.1and2 of2000 in relation
to the two incidents aforementioned. Before the Designated
Court the accused persons pleaded not guilty and claimed a F
trial.

8. At the trial the prosecution examined as many as 120
witnesses in TADA case No. 41 of 1995 with 1 of 2000 and
105 witnesses in TADA case No. 59 of 1995 with 2 of 2000 .. G .,
The accused did not- lead any defence. The Trial Court
eventually found some of the accused persons guilty while some
others were acquitted giving them the benefit of doubt. Those
found guilty were sentenced to imprisonment ranging between
10 to 20 years details whereof may be summarised as under: H
s. Appellant Accused Conviction by Maximum Conviction by Maximum
No. /Acc~sed Appeal No. Designated Court in Sentence Designated Court in Sentence
TADA Case no. 41/1995 awarded by TADA Case no. 59/1995 awarded by
and 112000 arising out Designated and 2/2000 arising out Designated
of C.R. No. 70/1993 Court in of C.R. No. 32/1993 Court in
TADA Case TADA Case (/)
No. 41/1995 no. 59/1995 c
and 1/2000 and 2/2000 -u
(Railway Station) (Mini Hira Bazar) :::0
m
:;::
1 Husein . 92 of 2009 s. 3(2)(ii) of TADA r/w 1208 10 years RI s. 3(2)(i) of TADA r/w 1208 20 years RI m
Ghadially and 110 of IPC, 5 of TADA, 307, 326, IPC, 5 of TADA, s. 302 r/w ()
A1 2009 325 and 324 r/w 1208 IPC, 1208 IPC, s. 3,4,5 of 0
s. 3,4,5 of Explosive Explosive Substances
c
:::0
Substances Act and Act and 25(1) A of Arms -I
25(1) A of Arms Act. Ad. :::0
2 Iqbal 92 of 2009 s. 3(2)(ii) of TADA r/w 1208 10 years RI s. 3(2)(i) of TADA r/w 1208 20 years RI
m
"U
Wadiwala and 110 of IPC, 5 of TADA, 307, 326, IPC, 5 ofTADA, s. 302 r/w 0
A2 2009 325 and 324 r/w 1208 IPC, 1208 IPC, s. 3,4,5 of :::0
-I
s. 3,4,5 of Explosive Explosive Substances (/)
Substances Act and 25(1) A Act and 25(1) A of Arms Act.
of Arms Act.
3 Mohammad 92 of 2009 s. 3(2)(ii) of TADA r/w 1208 10 years RI s. 3(2)(i) of TADA r/w 1208 20 years RI
Gulam@ and 110 IPC, 5 of TADA, 307, 326, IPC, 5 of TADA, s. 302 r/w
Mohammad of 2009 325 and 324 r/w 1208 IPC, 1208 IPC, s. 3,4,5 of
SurtiA3 s. 3,4,5 of Explosive Explosive SubstaFJces Act
Substances Act and 25(1) and 25(1) A of Arms Act.
·.
of Arms Act I
4 Mustaq A4 92 of 2009 s. 3(2)(ii) of TADA r/w 1208 10 years RI s. 3(2)(i) of TADA r/w 1208 20 years RI c
en
Ibrahim and 110 of IPC, 5 of TADA, 307, 326, IPC, 5 of TADA, s. 302 r/w en
Patel 2009. 325 and 324 r/w 1208 IPC, 1208 IPC, s. 3,4,5 of m
s. 3,4,5 of Explosive Explosive Substances z
Substances Act and 25(1) Act and 25(1) A & 25(1)AA OG>
A & 25(1)AA of Arms Act. of Arms Act. ""TlI
G> )>
5 Salim 92 Of 2009 s. 3(2)(ii) of TADA r/w 1208 10 years RI s. 3(2)(i) of TADA r/w 1208 20 years RI cO
Chawal/ and 110 IPC, 5 of TADA, 307, 326, IPC, 5 of TADA, s. 302 r/w <- )>
Manjro A5 of 2009 325 and 324 r/w 1208 IPC, 1208 IPC, s. 3,4,5 of )> r
s. 3(b) of Explosive Explosive Substances ::0 !:(
Substances Act and 25 and Act and 25(1) A &25(1)AA ~
27 of Arms ~t. of Arms Act. -:::i®
. s:
6 Ahzaz 92 of 2009 s. 3(2)(ii) of TADA r/w 1208 10 years RI s. 3(2)(i) of TADA r/w 1·208 20 years RI en.
.I
Ahmed and 110 of IPC, 5 of TADA, 307, 326, IPC, 5 of TADA, s. 302 r/w -I (;)
Patel A6 2009 325 and 324 r/w 1208 IPC, 1208 IPC, s. 3(8) of :i:·
s. 3(b) of Explosive Explosive Substances Act
)> ?>
Substances Act and 25 & 27 and 25 & 27 of Arms Act. Aen
C:i:
of Arms Act. 20 years RI _::o )>
7 Aziz. 110 of Acquitted S. 201 RMI 1208 IPC 10 years RI <-A
Ibrahim 2009
- ~I

Patel :c::
-
A7 AB en
8 Mehmood 110 of Acquitted
- s. 3(3) of TADA r/w s. 1208 10 years RI ~
~
@Baba 2009 AB IPC, S. 5 of TADA, s. 5 of m
(,.)
.....
(J'I•
Ibrahim Explosives Substances Act, t
Master 25(1)A of Arms Ac
A10
9 Fazal 110 of Acquitted s. 3(3) of TADA r/w s. 1208 10 years RI
Dawood 2009
- IPC, S. 5 of TADA, s. 5
Nagori A9 of Explosives Substances Act en
25(1)A of Arms Act c
A11 -u
;;o
10 Saeed 110 of Acquitted s. 3(3) of TADA rlw s. 1208 10 years RI m
Naadi@ 2009
- IPC, S. 5 of TADA, s. 5 of s:
Abdul A10 Explosives Substances Act,
m
Saeed
- 25(1)A of Arms Act
()
0
Abdul c
;;o
Mazid A12
Navdiwala -i
;;o
11 Baba@ 110 ot S. 6 of TADA r/w s. 1208 IPC 10 years RI
Abdul Khlilik 2009' ~
Ali 0
;;o
Mohammad A9 -i
Shaikh en
~2 Yusuf 658 of s. 3(2)(ii) of TADA r/w 1208 10 years RI s. 3(2)(i) of TADA r/w 1208 LI fur 20 years 'N
0
Dadu@ 2009 IPC, 5 of TADA, 307, 326, IPC, 5 of TADA, s. 302 r/w .....
Yusuf@ 325 and 324 r/w 1208 IPC, 1208 IPC, s. 3(b) & 5 of ~
Yaasin@ and 659 s. 3(b) & 5 of Explosive Explosive Substances Act co
Abdulla of 2009 Substances Act r/w s. 1208 and 25(1) A of Arms Act. en
Gui am IPC and 25(1) A of Arms Act. ()
husen A11
'
;;o
Nalband
. .
HUSSEIN GHADIALLY @M.H.G.A. ~HAIKH v. STATE 377
OF GUJARAT [T.S. THAKUR, J ]
/

9. Appearing for the appellants Mr. Sushil Kumar, learned A
Senior Counsel, strenuously argued that the trial and conviction
of the appellants for offences with which they were charged is
vitiated for breach of the mandatory provisions of Section 20-
A (1) of The Terrorist and Disruptive Activities Act (TADA). That
provision it was contended required approval of the District B
Superintendent of Police for recording of any information about
the commission of an offence punishable under the said Act.
No such af>proval was, however, either sought from or granted
by the District Superintendent of police concerned. Approval
for recording of the information was instead obtained from the c
Additional Chief Secretary, Home Department, Government of
Gujarat who had no power to grant the same under the Act. So
also the purported approval from the Additional Police
Commissioner, Surat was of no legal effect as the power to
grant such approval vested only in the District Superintendent D
of Police and could not be exercised by the Additional
Commissioner of Police or anyone holding an equivalent rank.
The power to grant approval being a sina qua non for recording
of any information about the commission of any offence under
the Act, absence of such approval was according to Mr. Sushil
D
Kumar sufficient by itself to vitiate any trial that was held in
breach of the said provision. Reliance in support of that
submission was placed by Mr. Kumar upon several decisions
of this Court including one in Aniruddhsinhji Jadeja & Anr. v.
State of Gujarat (1995) 5 SCC 302-to which we shall presently
turn. It was contended that the conviction and sentence of the E
appellants ought to be set aside not only because the provision
of Section 20-A (1) is mandatory but also because the power
to grant approval for recording of information about the
commission of an offence under the Act could be exercised only
by the authority concerned under such provision and by nobody F
else. The designated authority could not, contended Mr. Kumar
abdicate the exercise of power in favour of any other authority,
no matter such other authority was higher in rank to the
designated authority. It was also contended that if the law
G
378 SUPREME COURT REPORTS [2014) 9 S.C.R.

A prescribes a particular procedure for doing a particular thing
then any such thing could be done only in the manner prescribed
or not at all. Inasmuch as the procedure prescribed by law which
required the approval of the competent authority to grant
approval for recording the information had not been followed, .
8 the trial and conviction of the appellants in breach of a
mandatory provision was legally unsustainable.

10. Mr. YashanK Adhyaru, learned Counsel for the State
of Gujarat, on the other hand, c.ontended that there was in the
present cases no requirement of prior approval for recording
C information about the .commission of offences under TADA
inasmuch as the first information reports about the two incidents
were registered on 28th January, 1993 and 22nd April, 1993
whereas Section 20-A (1) was inserted in the Act subsequently
on 22nd May, 1993. Alternatively it was contended by the
D learned counsel that the approvals granted by the Government
and the Additional Police Commissioner were valid and
substantially complied with the requirements prescribed under
Section 20-A (1).

E 11. Before we deal with the contentions urged at the bar
we need to sail smooth on the facts relevant to the registration
of the two Fl Rs. The first case relevant to the blast at Mini Hira
Bazar, Varaccha Road, led to registration of C.R. No.32 of 1993
not only for commission of offences under the IPC and Explosive
F Substances Act but also under TADA. Almost one year after
the registration of the FIR, on 24th. January, 1994 the Police
Commissioner, Surat instructed Varaccha Police Station to
remove the TADA provision from C.R. No.32 of 1993. These
instructions came in the wake of a decision·taken by the TADA
Review Committee in its meeting held on 24th January, 1994.
G The instructions were carried out and TADA offences deleted
from the two cases in hand. Subsequent to the deletion of
TADA from C.R. No.32 of 1993, a request was made by P.C.
Pandey Police Commissioner, Surat to the Home Department,
Government of Gujarat for re-application of the provisions of
H
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 379
OF GUJARAT [T.S. THAKUR, J.]
TADA. The Police Commissioner pointed out that a Russian A
made hand grenade was used in the blast. Approval for re-
application of TADA provisions was pursuant to the said
request granted by the Additional Chief Secretary, Home
Department, Government of Gujarat on 12th May, 1995 and
intimated to the Additional Commissioner of Police, Surat. In B
his letter dated 8th May, 1995, the Police Commissioner, Surat
City sought approval for reintroduction of TADA provisions in
the following words:

"In the offence registered at Varacha Police Station, C
explosion was done by a Russian made grenade which
was revealed when accused were arrested in Surat
Railway P.St. 0. Reg. No.160193. Hence it is required that
in Varacha Police Station I O.Reg. No. 32193 sections
of 302, 307, 324, 326, 120(8) of l.P.C. and Sections
3,4,5 of Explosives Substances Act and Sections 3 and D
5 of Tada Act are required to be added. Hence sanction
to add Sections of Tada may be given.

Yours faithfully,
E
(P.C.Pande)

Police Commissioner

Surat City"
F
12. Approval dated 12-05-1995 granted by the Additional
Chief Secretary, Home Department was pursuant to the above
request communicated to the Police Commissioner, Surat City
in the following words:

"To G

Police Commissioner

Surat City;
H
380 SUPREME COURT REPORTS [2014) 9 S.C.R.

A Su.rat

Subject: Varacha P.St.l.O.Reg.No.32193 Sanction
of Tada

Sir,
B
This is to inform you with respect to above subject
regarding your fax message No. RB/10011995 dt. 8.5.95
in the case registered at Varacha P.St.(First) O.Reg.
No.32193:-
c Additional Chief Secretary, Home Department has given
sanction to apply the Sections of Tada.

Yours faithfully,

D Sdl- //legible

(R.B. Thakkar)

Section Officer

E Home Department (Special)"

13. Insofar as the second blast that took place on Platform
No.1 Surat Railway Station on 22nd April, 1993 is concerned,
C.R. No.70of1993 registered in connection therewith was not
only under the provisions of the IPC and the Explosives
F Substances Act but also under Sections 3 and 7 of TADA. The
TADA provisions were, however, subsequently removed in this
case also pursuant to the decision taken by the Government
on the basis of the TADA Review Committee's
recommendations and the deletion intimated to the competent
G Court at Surat. On 12th April, 1995, however, Additional Police
Commissioner Range 2, Surat City ,approve<;! the re-
introduction of Sections 3(1), 3 (2), 3(;3), 3(4) and 5 of TADA
Act to C.R. No.70of1993 registered in connection with the said
blast. The addition was accordingly made by the investigating
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 381
OF GUJARAT [T.S. THAKUR, J.]
officer and intimated to the designated Judge app~inted under A
the TADA. This is evident from the following passage
appearing in the letteraated 13th April, 1995 addressed by the
investigating officer to the designated Court:

"K.C. Parmar, P.S.I. of Action Group hereby reports that:- 8
Section 3(1)(2)(3}(4) and Section 5 of TADA Act have
been added in Surat Railway P.St. O.Reg. No. I 70193 ul
sec 307, 326, 324, 427, 1208 of /PC and U!sec 3,5, 7 of
Explosive Substances Act. According to the new
provisions of TADA Act, sanction of Additional Police C
Commissioner Range-2 Surat City has been obtained
which is enclosed her.ewith the case papers.

Hence this is to inform you that Sections 3(1)(2)(3)(4) and
Section 5 of TADA Act have been added in this offence D
which please note.

Date: 14.4.95: Sd! -
Illegible

(KC.Parmar) E

P. S. Inspector

Action Group, Surat City"

14. What is interesting is that even after the provisions of F
TADA had already been introduced with the approval of the
Additional Police Commissioner, Range 2, Surat City, the
Government appears to have been approached for grant of
approval for ~reduction of the TADA in C.R. No.70 of 1993
which approvalwas granted by the Additional Chief Secretary, G
Home Department and conveyed to the designated court by the
Assistant Police Commissioner, G Division, Surat City in terms
of his letter dated 12th May, 1995. The relevant portion of the
letter conveys the\Additional Chief Secretary, Home
Department's approva~ for introduction of the TADA. It reads H
382 SUPREME COURT REPORTS [2014) 9 S.C.R.

A as under:

"K.K. Chudasma (/. 0) Assistant Police Commissioner
Surat City "G" Division reports that:-

Sanction of Additional Chief Secretary Home Department
B has been received vide Fax Message No.I V2/A TK/28931
2768 Home Department, Block No.2, Sardar Bhavan,
Sachivalaya, Gandhinagar dt. 15. 4. 95 has been received
with the signature of Section Officer Home Deparlment
(Special) for application of Sections of TADA Act in Surat
c Railway Police Station I. 0. Reg. No. 70193 registered u/
sec 3G7, 326, 324, 427, 120(8) of !PC and u/sec. 3, 4, 5
of Explosive Substances Act. Sanction letter Fax
message is enclosed along with the case papers which
please note.
D
Date: 12. 5. 95 Sdllllegible

Received Copy (K. K. Chaudasma)

Sdl- Illegible Assistant Police
E Commissioner

Jr. Clerk G. Division, Surat City"

15. It is in the light of the above evident that in C.R.No.32
of 1993 approval for recording of information regarding
F commission of offences under the TADA came directly from the
Home Department of the Government of Gujarat. In C.R. No. 70
of 1993 relating to the second blast that took place at Surat
Railway Station, the State Government and the Additional
Police Commissioner, Surat city approved the application of
G the provisions of TADA.

16. What falls for determination is whether these approvals
can be said to be sufficient compliance with the provisions of
Section 20-A of TADA that reads as under:-
H
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 383
OF GUJARAT [T.S. THAKUR, J.]
"20-A Cognizance of offence. A

(1) Notwithstanding anything contained in the Code, no
information about the commission of an offence under
this Act shall be recorded by the police without the prior
approval of the District Superintendent of Police. B
(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 Police."
c
17. A careful reading of the above leaves no manner of
doubt that the provision starts with a non obstante clause and
is couched in negative phraseology. It forbids recording of
information about the commission of offences under TADA by
the Police without the prior approval of the District D
Superintendent of Police. The question is whether the power
of approval vested in the District Superintendent of Police could
be exercised by either the Government or the Additional Police
Commissioner, Surat in the instant case. Our answer to that
question is in the negative. The reasons are not far to seek. E
We say so firstly because the statute vests the grant approval
in an authority specifically designated for the purpose. That
being so, no one except the authority so designated, can
exercise that power. Permitting exercise of the power by any
other authority whether superior or inferior to the authority
designated by the Statute will have the effect of re-writing the F
provision and defeating the legislature purpose behind the
same - a course that is legally impermissible. In Joint Action
Committee of Air Line Pilots' Association of India (ALPAI) and
Ors. V. Director General of Civil Aviation and Ors. (2011) 5
sec 435, this Court -L
declared thati even senior officials cannot G
provide any guidelines or direction to the authority under the
statute to act in a particular manner.

18. Secondly, because exercise of the power vested in the
District Superintendent of Police under Section 20-A (1) would H
384 SUPREME COURT REPORTS .[2014] 9 S.C.R.

A involve application of mind by the officer concerned to the
material placed before him on the basis whereof, alone a
decision whether or not information regarding commission of
an offence under TADA should.be recorded can be taken.
Exercise of the power granting or refusing approval under
B Section 20-A (1) in its very nature casts a duty upon the officer
concerned to evaluate the information and determine having
regard to all attendant circumstances whether or not a case for
invoking the provisions of TADA is made out. Exercise of that
power by anyone other than the designated authority viz. the
c District Superintendent of Police would amount to such other
authority clutching at the jurisdiction of the designated officer,
no matter such officer or authority purporting to exercise that
power is superior in rank and position to the officer authoris6d
by law to take the decision.,
D 19. Thirdly, because if the Statute provides for a thing to
be done in a particular manner, then it must be done in that
manner alone. All other modes or methods of doing that thing
must be deemed to have been prohibited. That proposition of
law first was stated in Taylor v. Taylor (1876) 1 Ch. D426 and
E adopted later by the Judicial Committee in Nazir Ahmed v.
King Emperor AIR 1936 PC 253 and by this Court in a series
of judgments including those in Rao Shiv Bahadur Singh &
Anr. v. State of Vindhya Pradesh AIR 19.54 SC 322, State of
Uttar Pradesh v. Singhara Singh and Ors. AIR 1964 SC 358,
F Chandra Kishore Jha v. Mahavir Prasad & Ors. 1999 (8) SC
266, Dhananjaya Reddy v. State of Karnataka 2001 (4) SCC
9 and Gujarat Urja Vikas Nigam Ltd. V. Essar Power Ltld.
2008 (4) SCC 755. The principle stated in the above decisions
applies to the cases at hand not because there is any specific
G procedure that is prescribed by the Statute for grant of approval
but because if the approval could be granted by anyone in the
police hierarchy the provision specifying the authority for grant
, of such approval might as well not have been enacted.

20. In Anirudhsinhji & Anr. v. State of Gujarat (1995) 5
H
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 385
OF GUJARAT [T.S. THAKUR, J.]
sec 302 relied upon by Mr. Sushil Kumar, this Court was A
dealing with a fact situation where a case was registered
initially under the Arms Act. The District Superintendent of
Police had instead of giving approval for recording information
himself made a report to the Additional Chief Secretary asking
for permission to proceed under TADA. The Deputy Director B
General and Additional Director General of Police also· sent fax
messages to the Chief Secretary requesting him to grant
permission to proceed under TADA. It was on that basis that
the Additional Chief Secretary, Home Department gave
sanction/consent to proceed under the provisions of TADA. The c
question that fell for consideration before this Court was whether
Section 20-A (1) was violated and, if so, whether the
prosecution of the accused in that case was legally valid.
Repelling the contention that the approval was valid this Court
observed: D
"11. The case against the appellants originally was
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 E
Additional Chief Secretary and· asked for permission to
proceed 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 F
another. If a statutory authority has been vested with
jurisdiction, he has to 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 G
In
discretion altogether. other words, the discretion vested
in the DSP in this case by Section 20-A(1) was not
exercised by the DSP at all."

21. This Court relied upon the decision in Commissioner H
386 SUPREME COURT REPORTS [2014] 9 S.C.R.

A of Police v. Gordhandas Bhanji AIR 1952 SC 16 where the
Commissioner of Police had at the behest 'of the State
Government cancelled the permission granted for construction
of a cinema in Greater Bombay. The order passed by the
Commissioner was quashed on the ground that the authorities
s concerned had vested the power to cancel in the Commissioner
alone who was bound to exercise the same himself and bring
to bear on the matter his own independent and unfettered
judgment instead of acting at the instance of, any other party.
This Court borrowed support for that view from the following
c passage by Wade and Forsyth in 'Administrative Law', 7th
Edition Page Nos.358-359 under the heading 'SURRENDER
ABDICTION, DICTATION' and sub-heading 'power in the wrong
hands':

"Closely akin to delegation, and scarcely distinguishable
D from it in some cases, is any arrangement by which a
power conferred upon one authority is in substance
exercised by another. The proper authority may share its
power with some one else, or may allow some one else
to dictate to it by declining to act without their consent or
E by submitting to their wishes or instructions. The effect
then is that the discretion conferred by Parliament is
exercised, at least in part, by the wrong authority, and the
resulting decision is ultra vires and void. So strict are the
courts in applying this principle that they condemn some
F administrative arrangements which must seem quite
natural and proper to those who make them ....

Ministers and their departments have several times fallen
foul of the same rule, no doubt equally to their surprise ... "
G 22. Anirudhsinhji (supra) was followed in Manohar Lall
(dead) by Lrs. ·v.
Ugrasen (dead) by Lrs. and Ors. (2010) 11
SCC·557 where the question that fell for consideration was
whether the State Government, exercising revisional power
under U.P. Urban Planning and Development Act, 1973, could
H
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 387
OF GUJARAT [:r.S. THAKUR, J.]
take up the task of a lower statutory authority. Relying upon the A
view taken in Anirudhsinhji case (supra) this Court observed:

"23. Therefore, the law on the question can be
summarised to the effect that no higher authority in the
hierarchy or an appellate or revisional authority can · B
exercise the power of the statutory authority nor can the
superior authority mortgage its wisdom and direct the
statutory authority to act in a particular manner. If the
appellate or revisional authority takes upon itself the task
of the statutory authority and passes an order, it remains C
unenforceable for the reason that it cannot be termed to
be an order passed under the Act. "

23. That Section 20-A (1) is mandatory is also no longer
res integra having been settled by this Court in Rangku Dutta
@ Ranjan Kumar Dutta v. State of Assam (2011) 6 SCC 358. D
This Court in that case held that since the provision was couched
in negative terms, the same is mandatory in nature no matter
the statute does not provide any penalty for disobedience. This
Court observed:
E
"18. It is obvious that Section 20-A(1) is a mandatory
requirement of law. First, it starts with an overriding clause
and, thereafter, to emphasise its mandatory nature, it
uses the expression "No" after the overriding clause.
Whenever the intent of a statute is mandatory, it is
clothed with a negative command. Reference in this F
connection can be made to G.P. Singh's Principles of
Statutory Interpretation, 12th Edn."

24. Relying upon Ahmad Umar Saeed Sheikh v. State of
UP. (1996) 11SCC61, this Court has in Ashrafkhan@Babu G
Munnekhan Pathan and Anr. v. State of Maharashtra (2012)
11 SCC 606 not only held that the approval given by the Chief
Secretary (Home· Department) of the State Government was not
a sufficient compliance with Section 20-A (1) but also that the
difficulty arising out of it was not curable under Section 465 of H
388 SUPREME COURT REPORTS [2014] 9 S.C.R.

A the Code. This Court observed:

"34. . .. . .. . . . Section 465 of the Code, which falls in
Chapter 35, covers cases triable by a Court of Session
also. Hence, the prosecution can take shelter behind
Section 465 of the Code. But Section 465 of the Code
B
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 nQt the kind of omission
which is covered under Section 465 of the Code. It is a
c defect which goes to the root of the matter and it is not
one of the curable defects."

25. This Court also rejected the argument that grant of
sanction in terms of Section 20-A(2) of the Act rendered the
D infirmity in the approval under Section 20-A(1) inconsequential.
This Court held that the two provisions operate in different and
distinct stages and that both the requirements have to be
complied with for a successful prosecution. The following
passage is in this regard apposite:
E
"37. .. . . . .. Both operate in different and distinct stages
and, therefore, for successful prosecution both the
requirements have to be complied with. We have not
come across any principle nor are we inclined to lay down
that in a case in which diff.erent safeguards have been
F provided at different stages,· the adherence to the last
safeguard would only be relevant and 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
G 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."

H 26. In two subsequent decisions rendered by this Court in
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 389
OF GUJARAT [T.S. THAKUR, J.]
Mohd. Iqbal M. Shaikh & Ors. v. The State of Maharashtra A
(1998) 4 SCC 494 and Manjit .Singh @ Mange CBI, through
its SP: (2011) 11 SCC 578 a slightly liberal view has been
taken but having regard to the fact that Anirudhsinhji's case
(supra) was decided by a three-Judge Bench of this Court, we
do not see any compelling reason to depart from the ratio of B
that decision especially when the view taken in that decision
proceeds on sound and well settled legal principles to which
we have briefly adverted in the earlier part of this judgment.

27. The upshot of the above discussion, therefore, is that
the requirement of a mandatory statutory provision having been C
violated, the trial and conviction of the petitioners for offences
under the TADA must be held to have been vitiated on that
account. Trle argument that the first information report regarding
the two incidents had been registered before the introduction
of Section 20-A (1) in the statute book making approval of the D
competent authority unnecessary has not impressed us. It is true
that the two incidents had taken place and cases registered
regarding the same under TADA before Section 20-A (1) came
on the statute book, but the fact remains that the provisions of
TADA were removed from the reports pursuant to the E
recommendations of the Review Committee. By the time fresh
evidence came to light requiring re-introduction of the provisions
of the Act approval for recording information regarding
commission of offences under TADA, had become necessary.
The fact that such approval was considered necessary even by F
the investigating agency and was prayed for, only shows that
the authorities were aware of the requirement of law and had
consciously attempted.to comply with the said requirement no
matter by applying for such approval to an authority not
competent to grant the same. G

28. Mr. Yashank Adhyaru next argued that even if the
provisions of TADA were not available against the appellants
the prosecution could still succeed in sustainin'g the conviction
of the appellants under IPC and the Explosive Substances Act.
H
390 SUPREME COURT REPORTS [2014] 9 S.C.R.

A That wcruld indee1 be so, provided there is eno~gh evidence
on record to support that course of action. Wherjl catfed upon
to show evidence that could warrant conviction of the appellants
independent of provLsions of TADA and the ~onfessional
statements of the accused allegedly recorded uhder the .said
B provisions, Mr. Yashank Adhyaru fairly conceded that while
there may be evidence regarding recoyery/ of some of the
weapons the same woµld not by itself be sufficient to justify the
conviction of the appellants. Even otherwise the recovery of the
weapons is also not satisfactorily proved by cogent and reliable
c evidence. Such being the position, we have no manner of.doubt
left that the conviction of the appellants cannot be sustained.

29. We accordingly allow Criminal Appeals No.92 of 2009,
110 of 2009 and 658-659 of 2009 and set aside the orders of
conviction passed against the appellants who shall be released
1
D from custody forthwith unless required in any other case.
Criminal Appeals No.303-304 of 2009, 305 of 2009 and 432-
433 of 2009 filed by the State of Gujarat shall, however, stand
dismissed.

Nidhi Jain Appeals disposed of.