Holding

The lack of prior approval under Section 20A(1) of TADA vitiated the proceedings, and the convictions under TADA and the Arms Act were unsustainable and therefore set aside.

Summary

Mukhtiar Ahmed Ansari was convicted under TADA (Sec. 5) and the Arms Act (Sec. 25(IB)) for allegedly possessing firearms and ammunition in a notified area after being arrested near Delhi's Bahai Temple in 1993. He had earlier been acquitted of the related kidnapping charge. On appeal, the Supreme Court examined whether the TADA proceedings were valid, focusing on the statutory requirement of prior approval under Sec. 20A(1) of TADA, and whether the conviction was sustainable on the merits, given the doctrine of autrefois acquit and the insufficiency of evidence. The Court found that the Deputy Commissioner had only sanctioned the Arms Act case, not TADA, so the requisite prior approval was absent, rendering the TADA proceedings vitiated. Moreover, the Designated Court erred by disregarding the appellant’s acquittal in the kidnapping case and by failing to prove possession beyond reasonable doubt, invoking the benefit of doubt. Consequently, both the TADA and Arms Act convictions were set aside, the appeal was allowed, and the appellant’s bail bond was discharged with the fine refunded.

Issues considered

The requirement of prior approval under Section 20A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 was complied with.
The conviction under TADA and the Arms Act is sustainable on the merits, considering the doctrine of autrefois acquit and the evidentiary standard of proof beyond reasonable doubt.

Legislation cited

Arms Act, 1959s. 25(IB)
Code of Criminal Procedure, 1973s. 428
Indian Evidence Act, 1872s. 60
Indian Penal Code, 1860s. 120B, s. 364A, s. 365, s. 387
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 20A(1), s. 5

Subjects

TADAArms ActDoctrine of autrefois acquitSection 20A prior approvalCriminal procedureEvidenceBenefit of doubtConviction set asideKidnappingFirearms possession

Judgment

MUKHTIAR AHMED ANSARI A
v.
STATE (N.C.T. OF DELHI)

APRIL 21, 2005

[B.N. AGRA WAL AND C.K. THAKKER, JJ.] B

Terrorist and Disruptive Activities (Prevention) Act, 1987-Sections 5
& 20A-Arms Act, 1959-Section 25(/B)-Conviction of appellant for
consciously possessingfire arms and ammunitions without licence in a"notified
area"-Conviction under both TADA and the Arms Act-Propriety of-On C
facts, held, improper-Proceedings under TADA were vitiated since prior
approval ofthe District Superintendent ofPolice under S.20A(J) for recording
FIR under TADA was not obtained-On merits too, the Designated Court
erred in passing conviction-It wrongly placed reliance upon facts of a
kidnapping case in which appellant was already acquitted~Besides, D
prosecution case was not proved beyond reasonable doubt-Penal Code,
1860-Sections 364A, 365, 387 rlw 120B.

Doctrines-Doctrine of "autrefois acquit"-Applicability of

According to the prosecution, PWl, a businessman kidnapped from E
Delhi was rescued by the police from Panchkula, Haryana. Appellant,
the alleged gang leader was nabbed and booked under the Arms Act and
under TADA. He was separately charged for kidnapping but got acquitted
on that count. The Designated Court held the Appellant guilty of
consciously possessing fire-arms and ammunitions without licence in a
"notified area" and accordingly convicted him under Section 5 of the F
Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and
also under Section 25 (lB) of the Arms Act, 1959.

In appeal to this Court the <JUestions which arose for consideration
are whether the proceedings under TADA were vitiated as no prior
approval in terms of sub-section (I) of Section 20A of TADA was obtained G
and whether on merits too, the Designated Court erred in convicting the
-- Appellant.

Allowing the appeal, the Court
797 H
798 SUPREME COURT REPORTS [2005] 3 S.C.R.

A HELD : 1.1. Sub-section (1) of Section 20A of Terrorist and
Disruptive Activities (Prevention) Act, begins with a non-obstante clause
and declare.; that notwithstanding anything contained in the CrPC, no
information about commission of an offence under TADA "shall be
recorded by the police without the prior permission of District
B Superintendent of Police". It is not in dispute that Authority to exercise
power under sub-section (1) of Section 20A in Delhi is the Deputy
Commissioner of Police. (806-G-HJ

1.2. In the instant case, initjally it was alleged by the prosecution.
that the appellant had committed offences punishable under the Arms
C Act as well as under the TADA. The Designated Court, however, held
that the provisions of TADA could not be invoked and hence no charge
was framed under TADA; The. matter was then taken to this Court by
the State and the order passed by the Designated Court was set aside. It .
was only after the order passed by this Court that the proceedings were
initiated under TADA. For such proceedings, compliance of Section 20A
D (1) of TADA and prior approval was necessary. (810-E, F]

1.3. PW 11 had stated in his evidence that after the weapons were
recovered, seized and sealed, the Deputy Commissioner of Police had
come on the spot and after satisfying himself, he gave .a direction to
register a case under TADA against the appellant. However the Deputy
E Commissioner of Police when himself examined as prosecution witness
(PW4) did not state that he had given. any such direction to PW 11. On
the contrary~ he had expressly stated that he had granted sanction in
writing, bare reading.·of which makes it clear that the Deputy
Commissioner of Police granted sanction only in respect of an offence
F punishable under the Arms Act and not under TADA. Therefore, from
the facts o( me case, it cannot be held that prior approval as required by
Section 20A (1) has been accorded by the competent authority under
TADA. All proceedings were, therefore, vitiated. Hence, conviction of the
appellant under TADA must be set aside. (811-A, C-E]

G Anirudhsinhji Karansinhji Jadeja and Anr. v. State of Gujarat, [1995)
5 SCC 302; Mohd. Yunus v. State of Gujarat, (1997) 8 SCC 459; Kalpnath
Rai v. State (Through CBI), [1997) 8 SCC 732 and State of A.P. v. A.
· Sathyanarayana and Ors., (2001) 10 SCC 597, relied on.

Commissioner of Police v. Gordhands Bhanji, (19521 SCR 135 and
H Ahmad Umar Saeed Sheikh v. State of U.P., (1996) 11 SCC 61, referred to.
MUKHTIARAHMEDANSARI v. STATE(N.C.T. OF DELHI) 799

2. Even on merits, the Designated Court committed an error in A
convicting the appellant. The kidnapping-case of PWl resulted in acquittal
of the appellant by a competent court. Th~ said decision is final. In view
thereof, it was not open to the Designated Court to reconsider the matter
by doubting the decision or commenting upon it observing that the
acquittal was undeserved or unwarranted and the appellant had committed B
the offence with which he was charged. Once the appellant-accused was
acquitted in kidnapping-case the doctrine of autrefois acquit gets attracted.
(811-F; 812-C)

Pritam Singh and Anr. v. State of Punjab, AIR (1956) SC 415, referred
to. c
Sambasivam v. Public Prosecutor Federal of Malaya, (1950) AC 458,
referred to.

3.1. It was the case of the prosecution that the police had
requisitioned a Maruti car from PWl. He, however, did not support the D
prosecution. The evidence of PWl destroyed the genesis of the prosecution
that he had given his Maruti car to police in which police had gone to
Bahai Temple in New Delhi and apprehended the accused. The prosecution
never declared PWl "hostile". His evidence did not support the
prosecution. Instead, it supported the defence. The accused hence can
rely on that evidence. (813-C, F) E
3.2. Two police officials, PW 4 and PW 5 could not state whether
arms and ammunitions were recovered from Delhi or Panchkula. The
Designated Court, however, did not consider that point by stating that
the witnesses 'deposed in a very casual manner in the Court'. (814-D)
F
3.3. According to the case of the prosecution when police went to
Panchkula, the accused was not found but his wife and children were
there. The two persons arrested by police informed the police party that
the accused was in a Guest House in Delhi. Telephone number of the
Guest House was also given. The wife of the accused was present at that G
time. The police authorities took no step to inform anyone to arrest the
accused by contacting Delhi police, nor immediately rushed to Delhi nor
had gone to the Guest House in the morning and waited near Bahai
Temple upto 12.00 noon. In that case, the wife should have immediately
informed the accused that the police was in search of him as she was
made aware of the whereabouts of the accused and even the telephone H
800 SUPREME COURT REPORTS [2005) 3 S.C.R.

A number. Thus, there is every possibility of accused having been arrested
from Panchkula and not from Delhi as asserted by the prosecution.
1814-E-GI

3.4. On overall consideration of the matter, it cannot be concluded
that the case against the appellant can be said to have been proved
B beyond reasonable doubt. Appellant is entitled to benefit of doubt. The
order of conviction and sentence passed against him under TADA as also
under the Arms Act is accordingly set aside. (814-H; 815-A, BJ

Raja Ram v. State of Rajasthan, JT (2000) 7 SC 549 and Megna Singh
C v. State of Haryana, (1996] 11 SCC 709, referred to.
--<-
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 325
of 2003.

From .the Judgment and Order dated 4.2.2002 and 5.2.2003 of the
D Designated High Court, TADA at New Delhi, in S.C. No. 49 of 2001.
Sushi! Kumar, Ramesh N. Keshwani, l.U. Khan, Ramlal Roy, C.G.
Sivakumaran, Vinay Arora, Adolf Mathrew and Sanjay Jain with him for the
Appellant.

Vikas Sharma and Mrs. ~nil Katiyar for the. Respondent.
E
Vikas Singh, Yunus Malik and Ms. Amrita Narayan with him for
~mpleading_ Party.

The Judgment of the Court was delivered by

F C.K. THAKKER, J. This appeal is directed against an order of
conviction and sentence passed by the Designated Court, New Delhi on
February 4, 2003 and February 5, 2003 in Sessions Case No. 49 of2001. The
said case was registered against the appellant under Section 5 of the Terrorist
an.d Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as
G 'TADA') as also under the Arms Act, 1959 (hereinafter referred to as 'Arms
Act'). For the offence under the Arms Act, the appellant was sentenced to
undergo rigorous imprisonment for three years and a fine of Rs.50,000, in
default to uniiergo R.I. for one year more. For the offence under TADA, he
was ordered to undergo rigorous imprisonment for ten years and a fine of
Rs.5~00,000, in default to undergo R.I. for one year more. Both the sentences
H were to ru~ concurrently. He was given benefit under Section 428 of Code
MUKHTIAR AHMED ANSARI v. ST ATE (N .C.T. OF DELHI) (THAKKER, J.] 80}

of Criminal Procedure, 1973 for the period already undergone by him as set A
off.

The case of the prosecution was that the appellant was found in
possession of several fire arms and ammunitions near Bahai Temple, Kalkaji,
New Delhi, on I Ith December, 1993. The case was closely linked with
another case of kidnapping for ransom. According to the prosecution version, B
one Ved Prakash Goel was a businessman ofGauhati, Assam. He was dealing
in coal in Gauhati and was doing business at Gauhati as well as at Calcutta.
Mainly su!>ply of coal was to cement plants of Birla. His son Sanjay Goel
was having a factory of preparing paper drums in the name and style of
Tushar Packaging Private Limited, Siraspur, Delhi. According to the C
prosecution, one Gandhi was also having business in Gauhati, where Ved
Parkash Goel used to do his business. The allegation of the prosecution was
that said Gandhi was a "Badmash" person and used to extract money (Chauth)
from other businessmen. According to Sanjay Goel, his father protested against
extraction of money and did not pay anything to Gandhi with the result that
there was tussle between Ved Prakash Goel and Gandhi. Ulfa extremists also D
learnt about flourishing business of Ved Prakash Goel and they were also
behind him. Due to all those reasons, prior to three months from December,
1993, Ved Prakash Goel closed this business in Gauhati and continued to
operate from Delhi and Calcutta. He had, however, a feeling that he was
being chased in Delhi and Calcutta also. E
On December 7, 1993, Ved Prakash Goel had gone to one of his friends
Dr. Surjit Mittra at D-11170, Pandara Road, New Delhi, to attend birthday
party. He left his house at about. 7 p.m. informing his servant that he was
going to Dr. Mittra's house. He went there in his red Maruti car bearing
registration No. DL 2C E 1517. He did not come back till late night but the F
family members were not worried since he used to get late in such parties.
Wife ofVed Prakash Goel, however, kept on waiting for him. For the whole
night Ved Prakash Goel did not tum up. In the morning of December 8,
1993, therefore, Mrs. Goel, inquired Dr. Mittra who replied that Ved Prakash
Goel had left his place the previous night i.e. on December 7, 1993 around
9.15 p.m. Thereafter several telephone calls were made to friends of Mr. G
Goel but he could not be traced. At about 7.30 a.m., a telephone call was
received at the residence of Mr. Goel. The caller wanted to talk to Mrs. Goel.
He told her that Mr. Goel was kidnapped from Dr. Mittra's residence and a
ransom of Rs. one crore should be arranged if he was wanted alive. The
caller also stated that when and where the money would be paid would be H
802 SUPREME COURT REPORTS [2005] 3 S.C.R.

A told later on. From the voice it sounded as if it was Punjabi Jat voice. The
caller also stated that Ved Prakash Goel had harassed kidnapper's friend in
Gauhati and had earned lot of money from Assam. A threat was administered
that if ransom is not paid or if the police is informed, Mr. Goel would be
killed. Sanjay Goel, son of Mr. Ved Prakash Goel informed the police about
B the telephone call and expressed his doubt that 'Goondas ~ of Gandhi had
hatched up a conspiracy and his father had been kidnapped. He also stated
that if money is not paid, his father might be killed. He furt:1er stated that the
Maruti car in which his father had gone was found parked outside the house
of Dr. Mittra. The report was lodged on December 8, 1993 and First
Information Report (FIR) was reg~stered on the basis of that report. Sub-
C Inspector Ram Mehat Singh sent report (rukka) at 11.00 p.m. after making
an endorsement and. the case was registered at about 11.30 p.m. on same day.

The kidnapper of Ved Prakash Goel made other calls at the residence
of Mr. Goel. The police mounted surveillance to know from which place
calls were made ·and came to know that they were being made from STD
D booth in Sector 7, Panchkula, Haryana. After tracing the location of caller,
police party of Crime Branch of Delhi Police went to Panchkula on December
IO, 1993 and started keeping watch on the STD booth of Sector 7. At about
2 p.m., police found that Mr. Goel was brought to STD booth by two persons.
The moment those two persons took Mr. Goel to STD booth, police
E immediately nabbed them. They were Ata-ur-Rehman and Afroz Khan. The
police also rescued Ved Prakash Goel. Those two persons were interrogated
and they disclosed that Mr. Goel· was kept in house No. 142, Sector 8,
Panchkula, Haryana. The house was then raided. Police recovered a rope,
some tape, a stitched coffin, some injection needles, distilled water, chemical
panthalene, etc. from the house. The two person~ also stated that their gang
F leader was Mukhtiat Ahmed Ansari (appellant herein) who had gone to Delhi
and was staying in a Guest House. As stated earlier, the place of receiving
ransom amount was to be informed to family members of Mr. Goel. The
police, therefore, brought those two persons to Delhi in the night of December
IO, 1993.

G On next morning, i.e. December 11, 1993, police made Ata-ur-Rehman
talked to the appellant - gang leader on telephone and got fixed Bahai Temple
as the place where ransom amount would be delivered at 12.00 noon. A red
colour Maruti car, beari~g No. DL 2 CE 1517 belonged to Ved Prakash Goel
was obtained by Police. Two private Maruti cars were also arranged by the
H Investigating Officer. The Police then went to Bahai Temple in civil clothes.
MUKHTIAR AHMED ANSARI v. STATE (N.C.T. OF DELHI) [THAKKER, J.] 803

At about 12.00 noon, the appellant came in a silver colour Maruti car to A
receive the ransom amount. The police had already laid a trap and the appellant
was apprehended. He was holding loaded rifle in his right hand which was
checked and found to contain one cartridge. It was seized. He was interrogated.
He produced one bag of green colour from his car which was checked. One
rifle of 22 bore, made in England, on the chassis of which KD 05488 was B
written, one double barrel gun of 12 bore made in Italy, one single barrel
gun, in two parts were found in the said bag. One another bag of black colour
containing 50 cartridges of 12 bore and 20 cartridges of 306 calibre and 41
cartridges of .22 bore was also recovered. All weapons and ammunitions
were seized by police. Police also found one unifonn set of DSP of Haryana
with cap, belt etc. from the car. The appellant-accused was arrested and C
weapons were seized. Since they were recovered in a notified area, accused
was booked under the Anns Act as. well as under TADA by FIR No. 508 of
1993, Police Station, Kalkaji, New Delhi. The investigation showed that
accused was the master mind and gang leader in kidnapping Mr. Ved Prakash
Goel for ransom. Police checked the Guest Register of the hotel in which the
accused had stayed in Delhi. They also sent arms and ammunitions to CFSL D
for examination and prepared cha/Ian and filed a case under the Anns Act
and also under TADA. Accused was separately challaned for the offences
punishable under Sections 364A, 365, 387 read with 120B of the Indian
Penal Code for kidnapping Mr. Goel in FIR No. 456 of 1993 of Police
Station, Tilak Marg, New Delhi. Cha/Ian was filed in the present case on E
April 19, 1994 under the Anns Act. On July 11, 1996, the Designated Court
held that the provisions of Section 5 of TADA were not attracted and the
accused was, therefore, not charged under TADA. The case remained only
under Section 25 of the Anns Act. Since the case was triable by a Court of
Magistrate, the Designated Court sent the case to the Court of Metropolitan
Magistrate who framed charge against the ·accused on September 4, 1996 F
under Section 25 of the Anns Act. The prosecution, however, appealed against
the order of Designated Court and this Court vide order dated September 16,
1996, allowed the appeal filed by the prosecution and held that provisions of
TADA were attracted and Designated Cour~ was not justifit;d in observing
that TADA was not applicable. The Designated Court was, therefore, directed G
to decide the case on merits. The case thus came back to the Designated
Court from the Court of Metropolitan Magistrate on December 5, 1997. The
charge was thereafter framed against the accused on January 16, 2001 under
Section 5 of TADA and the trial proceeded.

H
804 SUPREME COURT REPORTS [2005) 3 S.C.R.

A It may be stated at this stage that the appeJlant along with two others
were charged in the kidnapping case (Sessions Case No. 93 of 1997) which
resulted into acquittal on July 16, 1997 by the Additional Sessions Judge,
New Delhi.

The Designated Court after considering the evidence of prosecution
B witnesses, defence witnesses and documents produced by the parties, held
that the appellant-accused was guilty of possessing fire arms and ammunitions
without licence and thereby he had committed an offence punishable under
Section 25 (IB) of the Arms Act. He was also held guilty for consciously
. possessing fire arms and ammunitions without licence in the "notified area"
C · punishable under Section 5 of TADA and accordingly he was convicted.
After hearing appellant-accused and his counsel on the question of sentence,
the Designated Court awarded sentence as stated earlier.

The present appeal was placed for hearing on M;:i.y l, 2003 and it was
ordered that the appeal would be finally heard on re-opening of Court after
D summer vacation. Hearing of bail application was adjourned. On July 22,
2003, when the matter appeared on board, the learned Additional Solicitor
General prayed for time to supply paper books. On August 19, 2003, when
the matter appeared on board, it was submitted on behalf of the appellant that
· the charge under TADA could not be.substantiated and so far as conviction
E. .. . under ·the fAhrms Act wTas k~onc~rned, the aphpellbant h!d alrehadcy undergonde
sentence o t ree years. a mg mto account t e a ove 1acts, t e ourt passe
the following order :

"In the abovesaid circumstances, the application for suspension of
sentence is allowed and it is directed that during the hearing of this
appeal, the execution of sentence of imprisonment and recovery of
F fine shall remain suspended subject to the appellant·depositing half
of the amount of fine imposed on him and furnishing a solvent surety
in the amount of Rs.5 lakhs (Rupees five lakhs only) with two sureties
each in an amount of Rs.2.50 lakhs (Rupees two lakhs fifty thousand
only) to the satisfaction of the trial court requiring the appearance of
G the appellant as directed by this Court. The personal bond and the
bail bonds to be furnished by the appellant shall incorporate the
following conditions also :-

l. That the appellant shall not leave the country and shall
deposit his passport, if any, with the trial court.
H
MUKHTIAR AHMED ANSARI v. STATE(N.C.T. OF DELHI) [THAKKER, J.] 805

2. The appellant shall not leave the State of U.P. and the A
U.T. of Delhi without informing the local police station
of the place where he is a resident.

3. The appellant shall not commit any offence during the
pendency of this appeal or misuse the liberty given to
him in any other manner whatsoever. B
The learned counsel for the appellant states that within a period
of two weeks, he shall furnish a list of documents which are also
required to be included in the paper book, under copy to the learned
counsel for the State, whereupon the State shall provide an additional
paper book containing those documents." C
On February 21, 2005, an order was passed to list the matter for final
hearing in the end of March, 2005 or in April, 2005. That is how the matter
has been placed for final hearing.

We have heard learned counsel for the parties. D
Mr. Sushil Kumar, learned senior counsel, appearing for the accused,
submitted that the Designated Court was clearly wrong and wholly unjustified
in holding the appellant guilty under TADA as also under the Arms Act. He~
submitted that there was no evidence worth the name to connect the appellant
with the crime. The Designated Court has also erred in convicting the accused E
relying on the prosecution case in kidnapping of Mr. Goel in which he was
acquitted by a competent criminal court. The grievance of the counsel is that
the Designated Court re-appreciated evidence in the kidnapping case of Mr.
Goel and observed that acquittal of the appellant-accused was wrong and
convicted him in the present case. The counsel also contended that no prior F
approval as required by sub-section (I) of Section 20A of TADA had been
obtained and proceedings were vitiated. The counsel urged that counter version
of the appellant-accused that he was neither arrested from Delhi nor arms and
ammunitions were found from him was equally probable. From the evidence
on record, it is clear, submitted the counsel, that the accused was picked up
from his residence at Panchkula and was brought to Delhi. No arrest memo/ G
panchnama was prepared when the appellant was said to have been arrested
which goes to support the case of the accused that he was not arrested from
Delhi. Prosecution witnesses also supported the defence version. They were
not declared "hostile" by the prosecution. On their evidence also, the appellant
could not have been convicted. The evidence of defence witnesses was not H
806 SUPREME COURT REPORTS (2005) 3 S.C.R.

A appreciated in its proper perspective by the Designated Court from which it
was proved that the day on which the alleged incident took place, the appellant
was not present at or near Bahai Temple, New Delhi. The investigation was
not 'above board'. The complainant himself was the investigating officer.
Recovery, seizure and sealing of weapons created serious doubts in the light
B of the fact that they were shown to Press. It was, therefore, submitted that the
appellant:.accused deserves to be acquitted.

The learned counsel for the respondent, on the other hand, supported
the order of conviction and sentence passed by the Designated Court. It was
submitted that the provisions of TADA had been complied with. The
c kidnapping-case which resulted into acquittal of the appellant had nothing to
do with conscious possession of arms and ammunitions by the appellant at
Bahai Temple, New Delhi on December 11, 1993. The Designated Court
considered the facts of kidnapping case as the 'background' in which arms
and ammunitions were found from the appellant. It, therefore, cannot be said
that allegations of the prosecution had weighed with the Designated Court in
D the present case. The Court, according to the respondent, considered the
evidence of prosecution witnesses as also defence witnesses and found that
the evidence of prosecution witnesses was reliable and accordingly convicted
him. The said order deserves no interference by this Court.

So far as proceedings under TADA are concerned, in our opinion, the
E learned counsel for the appellant is right in submitting that the proceedings
could not have been initiated in view of sub-section (l) of Section 20A of
TADA. The said provision reads thus : '

"20A. Cognizance of offence - (I) Notwithstanding anything contained
in the Code, no information about the commission of an offence
F under this Act shall be recorded by the police without the prior
approval of the District Superintendent of Police.

(emphasis supplied)

The provision begins with a non-obstante -clause and declares that
G notwithstanding anything contained in the Code of Criminal Procedure, no
information about commission of an offence under TADA "shall be recorded
by the police without the prior permission of District Superintendent of Police".
It is not in dispute that Authority to exercise power under sub-section (I) of
Section 20A in Delhi is the Deputy Commissioner of Police. The learned
H counsel for the appellant submitted that prior approval as required by law had
MUKHTIAR AHMED ANSARI v. STA TE(N.C.T. OF DELHI) [THAKKER, J.] 807

not been obtained and hence the proceedings were vitiated and the appellant A
could not have been prosecuted. The learned counsel for the respondent, on
the other hand, submitted that prior approval had been granted by the Deputy
Commissioner of Police and the prosecution was legal and lawful. The counsel
on both sides in this connection invited our attention to a few decisions of
this Court.
B
In Anirudhsinhji Karansinlyi Jadeja and Anr. v. State ofGujarat, [1995]
5 SCC 302, the District Superintendent of Police had not granted prior
approval 'on his own'. Instead, he requested the Chief Secretary to accord
pennission to proceed against the accused under TADA. That action was
challenged by the accused. Upholding the contention and observing that the C
provision of the statute is clear and unambiguous, a three-Judge Bench of this
Court held that the power to grant approval under the Act has been vested
in the District Superintendent of Police and he alone must exercise the said
power. Referring to .an earlier decision of this Court in Commissioner of
Police v. Gordhands Bhanji, [1952] SCR 135, the Court observed that when
the power is conferred by a statute on a particular authority, that authority D
alone must exercise such power. In the opinion of the Court, the exercise of
power was on the basis of "external dictation". Such dictation came .on the
· prayer of District Superintendent of Police did not make any difference in
principle. The fact was that the District Superintendent of Police did not
exercise jurisdiction vested in him by the statute and did not grant approval E
to the recording of infonnation under TADA. The proceedings were, therefore,
vitiated.

The Court stated;

"The case against the appellants originally was registered on F
19.3.1995 under the Anns Act. The DSP did not give any prior
approval on his own to record any infonnation 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 under
TADA. Why? Was it because he was reluctant to exercise jurisdiction
vested in him by the provision of Section 20-A{l)? This is a case of G
power conferred upon one authority being really exercised by 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 discretion
H
808 SUPREME COURT REPORTS [2005) 3 S.C.R.

A altogether. In other words, the discretion vested in the DSP in this
case by Section 20-A(l) was not exercised by the DSP at all."

In Mohd. Yunus v. State of Gujarat, [1997] 8 SCC 459, a similar
question came up for consideration before a two-Judge Bench of this Court.
Following Anirudhsinhji, this Court held the provision for prior approval of
B the authority under sub-section (I) of Section 20A mandatory and ruled that
in absence of such approval, proceedings under TADA were not maintainable.
It was contended by the prosecution that when the investigation had been
made, the Commissioner of Police, was present and he had given "oral"
permission under Section 20A (I) of TADA. This Court, however, indicated
C that "considering the serious consequences in a criminal case initiated under
the provision of TADA, oral permission cannot be accepted".

We may now refer to a decision of two-Judge Bench in Kalpnath Rai
v. State (Through CBI), (1997] 8 SCC 732. There prosecution was launched
against several persons under TADA. It was contended on behalf of the
D accused that the provisions of sub-section (I) of Section 20A of TADA had
not been complied with and hence they stood vitiated. The Court negatived
the contention and held that prior approval envisaged by Section 20A (I) of
TADA need not be in writing.

The Court stated :-
E
"Then the question is whether prior approval envisaged in Section
20-A(l) of TADA should necessarily be in writing. There is nothing
in the sub-section to indicate that prior approval of the District ·
Superintendent of Police should be in writing. What is necessary is
the fact of approval which is sine qua non for recording the information
F about the commission of the offence under TADA. The provision is
intended to operate as a check against the police officials of lower
ranks commencing investigation into offences un~er TADA because
of the serious consequences which such action befalls the accused.
However, the check can effectively be exercised if a superior police
official of the rank of DSP first considers the need and feasibility of
G
it. His approval can be obtained even orally if such an exigency
. arises in a particular situation. So oral approval by itself is not illegal
and would not vitiate the further proceedings."

In our opinion, the learned counsel for the respondent is right in relying
H upon a three-Judge Bench decision in State of A.P. v. A. Sathyanarayana and
MUKHTIAR AHMED ANSARI v. ST ATE (N.C. T. OF DELHI) [THAKKER, J.] 809

Ors., [2001] 10 SCC 597. In that case, a Sub-Inspector of Police seized A
certain explosive substances and contacted Superintendent of Police being
appropriate authority for getting prior approval as required under Section
20A (l) of TADA before registering a case. The Superintendent of Police
instructed the Sub-Inspector of Police to register the case and book the accused
under TADA. The case was registered. The Superintendent of Police himself
recorded in writing to register a case but the writing reached the Sub-Inspector B
on the next day. When the charge sheet was filed, the Designated Judge took
the view that there was no approval in writing of the Competent Authority
and the registration of case under TADA was bad in law. The State approached
this Court. The Court considered Mohd Yunus and Kalpanath Rai and held
that Section 20A (I) of TADA did not require prior approval in "in writing". C
The Court stated that prior approval is no doubt condition precedent
for registering a case under TADA but it may either be in writing or oral. The
C_ourt proct'eded to state that in Mohd. Yunus, a two-Judge Bench considered
the question and held that such approval must be in writing so that there is
transparency in the action of the statutory authority and there is no occasion D
for any subterfuge subsequently by introducing oral permission. That judgment
was delivered on October 15, 1997. The Court further observed that another
two Judge Bench in Kalpnath Rai considered a similar question of prior
approval and held that such approval need not be in writing. The Court noted
that though Kalpnath Rai was decided subsequently on November 6, 1997, E
the attention of the Court was not invited to Mohd. Yunus and apparently
there .vas inconsistency between the observations in Mohd Yunus and Kalpnath
Rai. The Bench, however, held that the statute itself nowhere made it
imperative that the so called prior approval must be in writing. The Court
said ·that innumerable cases may arise where it may not be possible to obtain
approval in writing before registering the case and without registering the F
case the officer concerned would not be entitled with the investigation of the
matter. Such situation may lead to obliteration of the evidence of the case.

The Court, therefore, concluded;

"Having applied our mind to the aforesaid two judgments of this G
Court, we are in approval of the latter judgment and we hold that it
is not the requirement under Section 20A(l) to have the prior approval
only in writing. Prior approval is a condition precedent for registering
a case, but it may be either in writing or oral also, as has been
observed by this Com1 in Kalpnath Rai case and, therefore, in the
H
.t-

810 SUPREME COURT REPORTS [2005) 3 S.C.R.

A 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,
therefore, set aside the impugned order of the learned Designated
Judge and direct that the matter should be proceeded with in
accordance with law."

B (emphasis supplied)

Reference was also made to Ahmad Umar Saeed Sheikh v. State of
U.P., [1996] 11 SCC 61. In that case, the prosecution alleged that the accused
had committed offences under TADA as also under the Indian Penal Code.
According to the accused, since there was no prior approval of District
C Superintendent of Police for recording FIR under TADA, which was essential,
the proceedings were vitiated. Negativing the contention, this Court held that
prior approval of District Superintendent of Police was required for initiating
proceedings only under TADA. Siilce the allegations were for commission of
other offences also, such approval was not needed in respect of those offences.
D In the circumstances, grant of approval during the inv~stigation involving the
accused under TADA was sufficient compliance.

In the instant case, as already noted earlier, initially it was alleged by
the prosecution that the appellant accused had committed offences punishable
under the Arms Act as well as under TADA. The Designated Court, howev_er,
E held that the provisions of TADA could not be invoked and hence no charge
was framed under TADA. The matter was then taken to this Court by the
State and the order passed by the Designated Court was set aside. It was only
after the order passed by this Court that the proceedings were initiated under
TADA. For such proceedings, compliance of Section 20A (I) of TADA and
prior approval was necessary.
F
The learned counsel for the appellant-accused, however, stated that
even today when all the proceedings are over, the appellant is convicted
under TADA and the matter is pending before this Court, there is nothing to
show that prior approval as required by Section 20A ( l) had ever been
granted. The counsel in this connection stated that the only order which was
G passed by the Deputy Commissioner of Police is of April 5, 1994. The learned
counsel for the respondent admitted the said position. That order dated April
5, 1994 is on record (Ex.P4/I). Bare reading of the order makes it clear that
the Deputy Commissioner of Police granted sanction only in respect of an
offence punishable under the Arms Act.
H
MUKHTIAR AHMED ANSARI"· STATE (N .C.T OF DELHI) (THAKKER, J.) 8) )

The learned counsel for the respondent stated that on December 11, A
1993, the accused was apprehended and the weapons were found by police.
PW 11 Ram Mehar Singh had stated in his evidence that after the weapons
were recovered, seized and sealed, the Deputy Commissioner of Police had
come on the spot and after satisfying himself, he gave a direction to register
a case under TADA against the accused. It was, therefore, submitted that
prior approval had been granted as required under Section 20A( l) of TADA. B
Reference was also made by the counsel to Section 60 of the Evidence, 1872
which declares that if oral evidence refers to a fact, which could be heard,
it can be proved by the evidence of a witness who says he heard it.

We are unable to uphold the argument. In this case, Deputy C
Commissioner of Police himself had been examined as prosecution witness
(PW4). 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 in writing) which is at Ex.P4/l. As already adverted
earlier, it was under the Arms Act and not under TADA. D
In our opinion, therefore, from the facts of the case, it cannot be held
that prior approval as required by Section 20A (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. E
The learned counsel for the appellant is also right in submitting that
even on merits, the Designated Court committed an error in convicting the
appellant. The counsel submitted that kidnapping-case of Ved Prakash Goel
resulted into acquittal by a competent court. The said decision is final. In F
view of acquittal of the appellant, it was not open to the Designated Court
to reconsider the matter by doubting the decision or commenting upon it
observing that the acquittal was undeserved or unwarranted and the appellant-
accused had committed the offence with which he was charged.

In support of the argument, the learned counsel referred to a decision G
of this Court in Pritam Singh and Anr v. State of Punjab, AIR (1956) SC
415. In that case, one P was prosecuted under the Arms Act for possessing
a revolver without holding valid licence. He was, however, acquitted by a
competent court. Subsequently, he was tried on the charge of murder. The
prosecution wanted to rely on recovery and factum of possession of revolver
which resulted in acquittal in an earlier case. It was held that the doctrine of H
812 SUPREME COl:JRT REPORTS [2005] 3 S.C.R.

A autrefois acquit would apply.
Referring to a leading decision of the Judicial Committee of the Privy
Council in Sambasivam v. Public Prosecutor Federal of Malaya, (1950) AC
458, this Court said;

B "The acquittal of Pritam Singh Lohara of that charge was tantamount
to a finding that the prosecution had failed to establish the possession
of the revolver Ex. P-56 by him. The possession of that revolver was
a fact in issue which had to be established by the prosecution before
he could be convicted of the offence with which he had been charged."

c The counsel is right in contending that once the appellant-accused was
acquitted in kidnapping-case the doctrine of autre/ois acquit gets attracted.
The Designated Court had proceeded on the allegation of the prosecution and
observed that it was M.A. Ansari who master minded the kidnapping ofVed
Prakash Goel.

D The Court stated :-

"In view of my discussion made above and after considering the
entire evidence and the documents proved on record and documents
placed by accused on record, I come to the conclusion that it was
accused M.A. Ansari who master minded the kidnapping of V.P.
E Goel. For this he took a house on rent in sector 8, Panchkula on
25.10.93 (it is possible that he had done this kidnapping for ransom
at the instance of Gandhi who was enimical to V.P. Goel). After
keeping V.P. Goel at Panchkula with his two goons calls were made
for ransom of one crore to the family of V.P. Goel and threat to kill ........
'
F V.P. Goel was niven if the amount was not given. He was in guest
house in Delhi on 10.12.93 when police raided the rented house taken
IJy accu~ed in Sector 8 Panchkula after arresting two of his goons and .l

rescuing V.P. Goel. Unaware of this arrest of his two goons and
rescue of V.P. Goel, he came to receive ransom amount opposite
Bahai Temple gate and he fell in trap laid by the police, who had got =
G telephone made to him from one of his accomplices. He came to '
Bahai temple with four fire arms and lot of ammunition. He was
arrested there with arms and ammunitions. _He, under threat made to
V.P. Goel and his son Sanjay Goel forced them to testify in his
favour in the Session court where his kidnapping case was tried. He
•
H got TIP held deliberately as he knew that he has got V .P. Goel under lr
MUKHTIAR AHMED ANSARI v. STATE(N.C.T. OF DELHI) [THAKKER, J.] 813

his terror and V.P. Goel stated that he has not seen accused M.A. A
Ansari at any point of time before the TIP. He was acquitted in the
kidnapping case due to the witnesses turning hostile under his fear.
He thereafter forced the same V.P. Goel and Sanjay Goel to depose
in this court that he was apprehended from Panchkula. I have no
doubt in mind that accused was apprehended by the Delhi Police

- from opposite Bahai temple along with fire arms and ammunitions.
He tried to create evidence cf his presence in Panchkula by his money
power and muscular power both."
B

The learned counsel for the appellant also urged that it was the case of
the prosecution that the police had requisitioned a Maruti car from Ved C
Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness
in this case as PW l. He, however, did not support the prosecution. The
prosecution never declared PWl "hostile". His evidence did not support the
prosecution. Instead, it supported the defence. The accused hence can rely on
that evidence.
D
A similar question came up for consideration before this Court in Raja
Ram v. State of Rajasthan, JT (2000) 7 SC 549. In that case, the evidence
of the Doctor who was examined as a prosecution witness showed that the
deceased was being told by one K that she should implicate the accused or
else she might have to face prosecution. The Doctor was not declared "hostile".
The High Court, howeve~ convicted the accused. This Court held that it was E
open to the defence to rely on the evidence of the Doctor and it was binding
on the prosecution .

.In the present case, evidence of PWl Ved Prakash Goel destroyed the
genesis of the prosecution that he had given his Maruti car to police in which F
police had gone to Bahai Temple and apprehended the accused. When Goel
did not support that case, accused can rely on that evidence.

The counsel also raised an objection against investigation by PW I I
ASI, Ram Mehar Singh. He is the complainant as well as Investigating Officer.

In Megha Singh v. State of Haryana, [1996] 11 SCC 709, the G
investigation was conducted by the very same police official who had lodged
the complaint. Deprecating the practice, this Coun observed that in the absence
of independent corroboration, no conviction can be recorded in such cases.
Jn the opinion of this Court, it was a "disturbing feature of the case". The
conviction of the accused was, therefore, set aside and he was ordered to be H
814 SUPREME COURT REPORTS [2005] 3 S.C.R.

A acquitted.
The learned couns.!I for the appellant also argued that from the defence
evidence as a whole, there is probability that the accused was not present at
Delhi on the previous night i.e. December 10, 1993 and was not apprehended
from Bahai Temple, New Delhi on December 11, 1993 but wa.s arrested from
B Panchkul~. For that reason, four telegrams were sent by the wife of the
appellant accused to the President of India, Prime Minister of India, Chief
Justice of India and Chief Justice of Punjab & Haryana. Though the
Designated Court refused to believe it on the ground that the original record
was not produced, it cannot be ignored that a certificate from the telegram
C office had been produced and a witness from Chandigarh Telegram office
had also been examined.

The learned counsel also submitted that the weapons were not recovered
from Delhi but from Panchkula. PW 4 Maxwell Pareria and PW 5 M.B.
Kaushal (both police officials) stated that they could not state whether arms
D and ammunitions were recovered from Delhi or Panchkula. The Designated
Court, however, did not consider that point by stating that the witnesses
'deposed in a very casual manner in the court'. "They did not bother to look
into the matter and very casually stated that they could not admit or deny the
recovery of arms from Panchkula".

E One more circumstance was also pressed into. service by the defence.
According to the case of the prosecution, on December 10, 1993 when police
went to Panchkula, the accused was not found but his wife and children were
there. The two persons arrested by police informed the police party that the
accused was in Shaitgrila Guest House in Delhi. Telephone number of the
F Guest House was also giw~n. The wife of the accused was present at that
time. The police authorities took no step to inform anyone to arrest the
accused by contacting Delhi police, nor immediately rushed to Delhi nor had
gone to Shangrila Guest House in the morning of December I I and waited
near Bahai Temple upto 12.00 noon. It is also rightly submitted that in that
case, the wife should have immediately informed the accused that the police
G was in search of him as she was made aware of whereabouts of the accused
and even telephone number. Thus, there is every possibility of accused having
been arrested from Panchkula on December 10, 1993 and not from Delhi on
December 11, 1993 as asserted by th+ prosecution. --
Thus, on overall consideration of the matter, in our opinion, it cannot
H be concluded tHat the case against the appellant accused can be said to have
MUKHTIARAHMEDANSARI v. STATE(N.C.T. OF DELHI)[THAKKER, J.] 815

been proved beyond r~asonable doubt and the accused, in our considered A
opinion is entitled to benefit of doubt.

For the foregoing reasons, the appeal deserves to be allowed and is
accordingly allowed. The order of conviction and sentence passed against the
appellant accused under TADA as also under the Arms Act is liable to be set
aside and is accordingly set aside. The appellant is said to have been on bail. B
The bail bond stands discharged. Amount of fine, if paid, is to be refunded
to the accused.

B.B.B. Appeal allowed.