Holding

Bail may be granted where the FIR was recorded without prior approval under Section 20‑A(1) of TADA and there is no material to infer the accused’s knowledge of the contents of the boxes, and the accused is entitled to parity with co‑accused labourers.

Summary

Three criminal appeals under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) sought bail for appellants – Izharl Haq Abdul Hamid Shaikh, Amir Gulam Husein Bandukwala and labourer Jivan Raghu Varli – who had been denied bail by Designated TADA Courts. The appellants argued that the FIRs were lodged without the mandatory prior approval of the District Superintendent of Police under Section 20‑A(1) of TADA and that there was no material to show they knew the contents of the boxes they were handling, unlike other co‑accused labourers who had been granted bail. The State contended that the confessional statements and the seriousness of the offences justified denial of bail. The Supreme Court examined the procedural requirement of Section 20‑A, the presumption of knowledge, and the principle of parity with co‑accused, and held that the lack of prior approval vitiated the proceedings and that no inference of knowledge could be drawn. Consequently, bail was granted to both Jivan Raghu Varli and Izharl Haq Abdul Hamid Shaikh, subject to conditions, and the appeals were disposed of.

Issues considered

Whether bail can be granted under Section 20(8) of TADA when the FIR was recorded without prior approval under Section 20‑A(1).
Whether there is any material to presume that the accused labourers had knowledge of the contents of the boxes.
Whether the principle of parity with other co‑accused labourers warrants granting bail.
Interpretation of bail provisions under TADA in light of Article 21 of the Constitution.

Legislation cited

Arms Acts. 25(1)AA, s. 25(1)AB
Code of Criminal Procedure, 1973s. 439
Explosive Substances Acts. 9-8
Indian Penal Code, 1860s. 120B, s. 121, s. 121A, s. 122, s. 123, s. 34
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 12, s. 16, s. 18, s. 20(8), s. 20-A

Subjects

TADABailSection 20-APresumption of knowledgeParity with co‑accusedDesignated CourtConfessional statementsArticle 21Speedy trial

Judgment

- [2009] 4 S.C.R. 1

IZHARUL HAQ ABDUL HAMID SHAIKH & ANR. A
V.
STATE OF GUJARAT
Criminal Appeal No.811 of 2008

MARCH 6, 2009
B
[ALTAMAS KABIR AND DR. MUKUNDAKAM SHARMA,
JJ.]
Terrorists and Disruptive Activities (Prevention) Act, 1987
"" - s.20(8), 20-A - Code of Criminal Procedure, 1973- s. :39 -
Bail - Appellant, one of the labourer employed for loading C
and unloading of boxes - Other labourers granted bail -
Designated Court rejected the bail application on the
presumption that he had knowledge of contents of the boxes
- On appeal, held: No material to presume that appellant had
knowledge of contents of boxes - He may be granted bail on D
-. parity with other labourers - Moreover, before recording FIR,
approval under s.20-A (1) of TADA Act not obtained - Bail
granted to the second appellant a/so.
Shaheen Welfare Association v. Union of India & Ors.
(1996) 2 SCC 616; Kartar Singh v. State of Punjab (1994) 3 E
SCC 569; Supreme Court Legal Aid Committee
Representing Undertria/ Prisoners vs. Union of India & Ors.
-t (1994) 6 SCC 731; Ranjitsing Brahmajeetsing Sharma vs.
State of Maharashtra & Anr. (2005) 5 SCC 294; State of
Maharashtra vs. Bharat Shanti Lal Shah & Ors. 2008 (12) F
SCALE 167; Mukhtiar Ahmed Ansari vs. State (NCT of Delhi)
(2005) 5 sec 258 - referred to
Case Law Reference
(1996) 2 sec 616 referred to Para 10 G
(1994) 3 sec 569 referred to Para 11
(1994) 6 sec 731 referred to Para 12

1 H
2 SUPREME COURT REPORTS [2009] 4 S.C.R. ..
A (2005) 5 sec 294 referred to Para 15
(2008) 12 SCALE 167 referred to Para 16
(2005) 5 sec 258 referred to Para 21
B CRIMINALAPPELLATEJURISDICTION: Criminal Appeal
No. 811 of 2008

From the Judgement and Order dated 09.04.2008 of the
Hon'ble Designated TADA Court at Valsad, Gujrat in Criminal
Misc. Application No. 68 of 2008 in Special TADA Case No. 1 ~
c of 2005.
WITH
Criminal Appeal No. 813 of 2008
Criminai Appeal No. 453 of 2009
D
@ Criminal Appeal D.No. 23837 of 2008
Rajeev Sharma, for the Appellants.
Hemantika Wahi, for the Respondent.
E The Judgement of the Court was delivered by
ALTAMAS KABIR, J.
1. Delay condoned in Criminal Appeal D.No.23837 of
2008.
F These three criminal appeals have been taken up together
as the same questions of law relating to the Terrorists and
Disruptive Activities (Prevention) Act, 1987 (hereinafter referred
to as 'TADA') regarding grant of bail are involved. All these three
appeals have been filed under Section 19 of TADA relating to
G separate incidents which are alleged to have occurred in
Porbandar and Valsad in the State of Gujarat.
2. Criminal Appeal No.811 of2008 has been filed by lzharul
Haq Abdul Hamid Shaikh and Amir Gu lam Husein Bandukwala
H against the order passed by the Designated Court, Porbandar,
IZHARUL HAQ ABDUL HAMID SHAIKH & ANR. V. 3
STATE OF GUJARAT [ALTAMAS KABIR, J.]

'.\ on 15th February, 2008 in Criminal Misc. Application No.164 of A
2007 in Special TADA Case No.6 of 2005 in respect of offences
alleged to have been committed under Sections 121, 121A,
122, 123. 120B, 34 IPC, Section 25(1)AB,AAoftheArmsAct,
Section 9-8 of the Explosive Substances Act read with Sections
3, 4, 5 and 6 of TADA. B
3. The appellant No.1, lzharul Haq Abdul Hamid Shaikh
has also filed Criminal Appeal D.No.23837 of 2008 against order
1
dated 9 h April, 2008, passed by the Designated TADA Court at
Valsad in Criminal Misc. Application No.68 of 2008 in Special
TADA Case No.1 of 2005 in respect of charges similar to those c
made against him in the Porbandar case.
4. Criminal Appeal No.813 of 2008 has been filed by one
Jivan Raghu Varli against an order dated 13th September, 2007,
in Criminal Misc. Application No.88 of 2007 on charges similar
D
i· to those made against lzharul Haq Abdul Hamid Shaikh.
5. In all the three appeal.s, the prayer for bail made on behalf
of the appellants under Section 439 Cr.P.C. and Section 20{8)
of TADA has been rejected.
6. Mr. Sushi! Kumar, learned Senior Advocate, appearing E
for the appellants in Crl. Appeal No.811 of 2008 and Crl. Appeal
D. No.23837 of 2008, submitted that lzharul Haq Abdul Hamid
+ Shaikh has been in custody since his arrest on 29th April, 2005,
i.e. for more than 3Yi years while the minimum sentence provided
in the TADA is 5 years and the maximum is life sentence. He F
urged that if the appellant was ultimately convicted and given
minimum sentence, he would have completed such sentence in
custody by the time the trial was concluded. Mr. Sushil Kumar
submitted that of the other co-accused in the Valsad case, twenty
,._ accused had been acquitted and it was observed in the G
~
judgment of the learned Designated Judge that the prosecution
had not been able to prove its case beyond all reasonable
doubt. Mr. Sushi! Kumar also submitted that the appeal against
• acquittal of the said twenty co-accused was dismissed by this
Court and another batch of three trials in the same case also H
4 SUPREME COURT REPORTS [2009] 4 S.C.R.

A ended in acquittal. He contended that the contents of the charge-
,,.
sheet did not warrant framing of charges by the Special Judge,
particularly when no recovery was effected and the only evidence
against the appellants was the alleged confession which had
not been relied upon in the earlier trial.
B 7. In the other case (Criminal Appeal No. 811 of 2008), the
First Information Report was filed on 8th March, 1994, by the
police authorities and thereafter confessions of the appellant
Nos.1 and 2 were recorded on 27th June, 2005. On being
produced before the Magistrate on 29th June, 2005, the
c appellants retracted their confessional statements on the ground
that such confessions had been obtained on the basis of threats
and coercion and, in fact, they did not even know as to what
was written in the confessional statements. A second petition
made by the appellants was heard by the Designated Court at
D Valsad, but the same was ultimately dismissed.
8. Mr. Sushi! Kumar stated that since no recovery had been
effected, the only evidence available against the appellants were
the confessional statements alleged to have been made by them
voluntarily, which have not been relied upon in the earlier trial.
E Mr. Sushi! Kumar submitted that most of the accused persons
in these cases have either been acquitted or released on bail
and that in the absence of any concrete evidence linking the
appellants with the incident, their bail applications should have +
been allowed.
F
9. Mr. Ranjit Kumar, Senior Advocate, who appeared for
the appellant in Criminal Appeal No.813 of 2008, preferred by
Jivan Raghu Varli, submitted that the appellant had been
th
arrested on 28 June, 2005, and that there were as many as 47
accused in the case which was based on facts similar to those
G ...
involving lzharul Haq Abdul Hamid Shaikh, and they are all on
bail except the appellant who was alleged to have been
absconding till he was arrested. Of the said 47 accused, the
appellant, Jivan Raghu Varli, was one of the labourers who had
unloaded the materials from a truck and had loaded them on to
H
l•
) IZHARUL HAQ ABDUL HAMID SHAIKH &ANR. V. 5
STATE OF GUJARAT [ALTAMAS KABIR, J.]

another and although the other labourers had been granted bail, A
the appellant's prayer for bail had been rejected on the above-
mentioned ground.

10. In this regard, Mr. Ranjit Kumar referred to the decision
of this Court in Shaheen Welfare Association Vs. Union of
India & Ors. [(1996) 2 SCC 616], wherein keeping in mind the B
dilemma of individual liberty as against protection from terrorism
and disruptive activities, this Court categorized people indulging
in terrorism and disruptive activities into two categories. The
first category was the hardcore terrorists who were directed to
be dealt with strictly, while in the other cases it was c
recommended that a liberal view be taken. But it was also
indicated that such an approach was not to be taken in
extraordinarily grave cases, such as the Bombay Bomb Blast
cases.
D
11. Mr. Ranjit Kumar then referred to the Constitution Bench
i decision in the case of Kartar Singh Vs. State of Punjab [(1994)
3 sec 569], in which the constitutional validity of the Terrorist
Affected Areas (Special Courts) Act, 1984, the Terrorist and
Disruptive Activities (Prevention) Act, 1987, and the Terrorists
and Disruptive Activities Procedure (UP Amendment) Act, 1976, E
had been challenged. After examining the provisions of the
aforesaid enactments in detail, on the question of bail, the
majority view was that although such power was available to
+ the High Court under Article 226 of the Constitution, the same
should be exercised in extreme circumstances given the F
stringent provisions of the legislation.
12. Mr. Ranjit Kumar also referred to the decision of this
Court in Supreme Court Legal Aid Committee Representing
Undertrial Prisoners vs. Union of India & Ors. [(1994) 6 SCC
G
731], in which the provisions of Articles 21 , 14 and 19 with regard
to speedy trial of under trial prisoners was under consideration
and it was held that deprivation of personal liberty without
ensuring speedy trial violates Article 21 of the Constitution. The
decision which was rendered in regard to the provisions of the
H
(
6 SUPREME COURT REPORTS [2009] 4 S.C.R.

A Narcotic Drugs and Psychotropic Substances Act, 1985 took
note of the fact of detention of persons under the aforesaid Act
for long periods without trial and observed that the provisions of
bail under the Act being strict, refusing bail on the one hand and
delaying trial of cases on the othe• is unfair and unreasonable.
8 Mr. Ranjit Kumar submitted that charge had not yet been framed
in the case and there were 216 witnesses to be examined. The
likelihood of the trial being concluded at an early date was highly
improbable.
13. It was also submitted that the appellant, along with
C several others, were labourers employed by lzharul Haq Abdul
Hamid Shaikh and there is nothing on record to indicate that
they had any knowledge of the contents of the boxes which were
being transported from one vehicle to another. In fact, in the
affidavit affirmed by the Investigating Officer it has also been
D indicated that the appellant was a labourer working under lzharul
Haq Abdul Hamid Shaikh at the relevant point of time.
Furthermore, although, it has been suggested that the appellant
had absconded for 11 years, the fact is that no steps had been
taken to apprehend him during the said period or to have him
E declared as an absconder.
14. It was also submitted that other labourers similarly
situated, such as Suresh lshwar Varli and Mangu Mahadu Varli,
had already been granted bail in connection with this case.
However, bail has been refused in the case of the appellant on
F erroneous considerations.
15. Yet another decision of this Court in the case of
Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra
&Anr. [(2005) 5 SCC 294] was referred to by Mr. Ranjit Kumar
G with regard to the interpretation of Article 21 in the light of the
presumption of innocence, before being proved guilty. It was
observed that Article 21, in view of its expansive meaning, not
only protects life and liberty, but also envisages a fair procedure.
Liberty of a person should not ordinarily be interfered with unless
H there exist cogent grounds therefor. Although, the aforesaid
IZHARUL HAQ ABDUL HAMID SHAIKH & ANR. V. 7
-.; STATE OF GUJARAT [ALTAMAS KABIR, J.]

decision was rendered under the provisions of the Maharashtra A
"" Control of Organised Crime Act, 1999 (hereinafter referred to
as 'MCOCA'), the provisions of TADA being similar with regard
to grant of bail, Mr. Ranjit Kumar submitted that the Court went
on to observe that Section 21 (4) of MCOCA did not lead to the
conclusion that the Court must arrive at a positive finding that B
the applicant for bail had not committed an offence under the
Act, as in such an event it would be impossible for the
prosecution to obtain a judgment of acquittal and conviction,
which could not have been the intention of the Legislature.
,-1
Section 21 (4) of MCOCA would, therefore, have to be c
considered reasonably by the Court to maintain a delicate
balance between a judgment of acquittal and conviction and an
order granting bail much before commencement of trial. The
duty of the Court at the said stage was not to weigh the evidence
meticulously but to arrive at a finding on the basis of broad
D
probabilities.
16. Reference was them made to the decision of this Court
in State of Maharashtra vs. Bharat Shanti Lal Shah & Ors.
[2008 (12) SCALE 167). where similar views have been
expressed. Mr. Ranjit Kumar submitted that as far as the E
appellant, Jivan Raghu Varli, was concerned, he could not be
treated on a different footing from the other labourers, who have
been granted bail in this case.
+
17. The submissions made by Mr. Sushil Kumar and Mr.
Ranjit Kumar on behalf of the appellants in these three crimin9I F
appeals were strongly opposed on behalf of the State of Gujarat
by Mr. YashankAdhyaru, learned Senior Advocate. Referring to
Section 12 of TADA, Mr. Adhyaru urged that when trying an
offence under the Act, the Designated Court could also try any
other offence with which the accused may, under the Indian Penal G
... Code, be charged at the time of trial. Mr. Adhyaru urged that
sub-section (2) of Section 16 provides that if during the trial
under the TADA Act it is found that the accused person had
committed any other offence under the Act or any rule made
thereunder or under any other law, the Designated Court could H
8 SUPREME COURT REPORTS [2009] 4 S.C R.
,.
A convict such person of such other offence and pass any
sentence authorized by the Act or such rule or such other law for
"
the punishment thereof. Reference was also made to Section
18 of TADA in this regard.
18. Referring to the certificate issued by the Superintendent
B of Police, Porbandar, on 2ih June, 2005, which records a
confession said to have been made by lzharul Haq Abdul Hamid
Shaikh, Mr. Adhyaru submitted that the said certificate satisfies
the rigours of Sections 15 and 18 of TADA and the same was
sufficient to deny bail, even if there was no other material ...
c available. Mr. Adhyaru relied on the decision in Kartar Singh's
case (supra) which was referred to by Mr. Ranjit Kumar, wherein
the validity of TADA had been upheld and this Court had held
that while considering grant of bail, the High Court under Article
226 of the Constitution was required to exercise extreme caution
D in view of the stringent provisions of the Act.
19. Mr. Adhyaru submitted that as far as Criminal Appeal
No.811 of 2008 is concerned, it should be kept in mind that
facts, other than the confessional statements, had been taken
into consideration by the Special Court while denying bail to
E lzharul Haq Abdul Hamid Shaikh.

20. With regard to Criminal Appeal D. No.23837/08, Mr.
Adhyaru submitted that the trial had already commenced in this
case and out of 86 witnesses, already 76 witnesses have been .
F examined and that only the official witnesses were left to be
examined. Further more, in this case there is a separate
confessional statement.
21. In his response to Mr. Adhyaru's submissions, Mr. Sushi!
Kumar pointed out that in terms of Section 20-A of TADA,
G notwithstanding anything contained in the Code of Criminal
Procedure, no information about the commission of an offence ...
under the Act can be recorded by the police without the prior
approval of the District Superintendent of Police. Moreover, Sub-
Section (2) of Section 20-A provides that no Court shall take
H cognizance of any offence under the Act without the previous
IZHARUL HAQ ABDUL HAMID SHAIKH & ANR. V. 9
STATE OF GUJARAT [ALTAMAS KABIR, J.]

sanction of the Inspector General of Police or, as the case may A
be, of the Commissioner of Police. Mr. Sushi! Kumar submitted
that the Investigating authorities had filed the First Information
Report without having obtained the prior approval of the District
Superintendent of Police, which was contrary to Sub-Section
(1) of Section 20-A, thus vitiating the entire proceedings. Mr. B
Sushil Kumar referred to the further cross-examination of P.W.10
Harjeshwar, who was then serving as the District Superintendent
of Police, Porbandar, wherein he had admitted the fact that
approval had been accorded after the complaint had been
registered. He also referred to the First Information Report dated C
1
8 tt May, 1994, in which, along with the other offences under the
Indian Penal Code, Arms Act and the Explosive Substances
Act, offences under Sections 3, 4 and 5 of the Tada Act were
also included. Mr. Sushi! Kumar submitted that it would also be
evident from the affidavit filed on behalf of the State of Gujarat D
that approval had been given for invoking the provisions of the
1
TADA Act under Section 20-A(1) on 8 h April, 1994, whereas
1
the First Information Report was lodged on 8 h March, 1994.
The same question was the subject matter in Mukhtiar Ahmed
Ansari vs. State (NCT of Delhi), [(2005) 5 SCC 258], wherein
it was held that since prior approval, as required under Section E
20-A(1) had not been accorded by the Competent Authority
under TADA, all proceedings taken without such sanction were
vitiated. Consequently, the conviction of the accused under TADA
was set aside.
F
22. Mr. Adhyaru, on instructions, submitted that the
statement made by Mr. Sushi! Kumar was correct, but that though
sanction had purportedly been granted under Section 20-A(2),
it was really intended to be a sanction under Section 20-A(1) of
TADA. He also urged that Discharge Applications were also G
pending before the learned Special Judge at Porbandar and
that the trial is being stayed on that account, and not on account
of any delay on the part of the prosecution.
23. As indicated hereinbefore, we are only concerned with
the question regarding grant of bail to the appellants. We do H
10 SUPREME COURT REPORTS [2009] 4 S.C.R.

A not, therefore, intend to go into the merits of the matters, which
are pending disposal before the Special Court. However, from
the submissions made on behalf of the parties, certain facts
also emerge which are required to be taken into consideration
while considering the question of grant of bail.
B 24. Taking up Criminal Appeal No.813/08 preferred by
Jivan Raghu Varli, first, it has transpired from the submissions
of the parties that he was a labourer, who was allegedly under
the employment of lzharul Haq Abdul Hamid Shaikh, the appellant
in the other two appeals. It has also transpired that he was one
C of a number of labourers who were allegedly involved in the
transfer of certain containers from one vehicle to another. The
other labourers who were involved in such operation are said to
have been granted bail as they had no knowledge of the
contents of the said boxes and were merely shifting the same
D on instructions. As far as the appellant - Jivan Raghu Varli is
concerned, he allegedly being in the employment of lzharul Haq
t
Abdul Hamid Shaikh, a presumption was drawn while denying
him bail that he presumably had knowledge of contents of the
boxes. Without commenting on that aspect of the matter, which
E is the subject matter of the trial, we are of the view that since the
other labourers have been granted bail and there being no
available material to presume that Jivan Raghu Varli had
knowledge of the contents of the boxes, he may be granted bail
on a parity with the other labourers.
F 25. As to the prayer for grant of bail made by lzharul Haq
Abdul Hamid Shaikh, the records show that while the First
Information Report against him under the Porbandar case had
th
been lodged on 8 March, 1994, approval therefor had been
given a month later, on 8th April, 1994. What will be the effect of
G the same will ultimately have to be decided in the trial and we
are not embarking on such exercise at the present moment.
However, for the purpose of grant of bail, having regard to the
decision in Mukhtiar Ahmad Ansari's case (supra) in which the
question of grant of prior approval, as required under Section
H 20-A(1 ), had been considered and was held to be a pre-
IZHARUL HAQ ABDUL HAMID SHAIKH & ANR. V. 11
STATE OF GUJARAT [ALTAMAS KABIR, J.]

condition for recording the First Information Report, we are A
inclined to grant bail to the appellant lzharul Haq Abdul Hamid
"" Shaikh, since undoubtedly, approval had not been obtained
under Section 20-A(1) of TADA before the First Information
Report was recorded.
26. We, accordingly, grant bail to appellant Jivan Raghu 8
Varli in connection with TADA Case l/G. 6/96 n/s-121, 121(c),
122, 123, 120(8) of the Indian Penal Code and under Sections
4, 5 and of the Explosive Substances Act
. .
and Sections 3, 4 and
5 of TADA Act pending before the Designated (TADA) Judge
~
at Porbandar, to the satisfaction of the Trial Court upon such c
conditions as may be considered necessary to ensure his
presence during the trial and also as and when required,
including restrictions on his movements and reporting to the local
Police Station in a manner, as may be deemed fit and proper.
D
27. We also grant bail to appellant lzharul Haq Abdul Hamid
Shaikh in Special TADA Case No.6 of 2005 under Sections
121, 121A, 122, 123, 1208, 34 of the Indian Penal Code and
Sections 25(1) AB, AA of the Arms Act, Section 9-8 of the
Explosive Substances Act, read with Sections 3, 4, 5 and 6 of
TADA Act pending before the Designated (TADA) Court, E
Porbandar and also in connection with Case No.1 of 2005 in
respect of similar charges pending before the Designated
(TADA) Court at Valsad, subject to the satisfaction of the Trial
... Court. Regarding the conditions for grant of bail, there will be
similar directions, as indicated hereinabove in Jivan Raghu F
Varli's case, with more stringent conditions, if thought necessary
by the Trial Court.
28. We make it clear that any observation made by us
while disposing of these appeals at the stage of grant of bail G
should not influence the Trial Courts in the trials pending before
+ them. The appeals are disposed of accordingly.

D.G. Appeals disposed of.
"