RAMBHAI NATH BHAI GANDHVI AND ORS.versusSTATE OF GUJARAT

A              RAMBHAI NATH BHAI GANDHV~ AND ORS.
                                         v.
                             STATE OF GUJARAT

                                 AUGUST 6, 1997

B                [DR. A.S. ANAND AND K.T. THOMAS, JJ.]

          Criminal law :

          Criminal Procedure Code, 1973:

C         Section 197--Cognizance of offence-Duty of court-No valid sanction
    order for prosecution-Held, Court has no jurisdiction to take cognizance.

        Terrorist and Disruptive Activities [Prevention} Act, 1987-Section
  20A-Sanction order for prosecution-Non-application of mind-Hence, not
D valid under section 20A of TADA.
          Anns Act, 1959 Section 2~Trial under TADA vitiated for want of
    valid sanction - No valid trial could be held by the Designated Court into any
    other offence including under the Anns Act as it has no such independent
    power.
E
          The accused in this case were actively engaged In smuggling of goods
    particularly arms and ammunition. The District Superintendent of Police
    got information about their smuggling activities and conducted a search.
    In that operation the D.S.P. arrested all the accused and seized a gun,
    pistols, cartridges, sub-machine guns and some more fire arms and am·
F   munitions from them. All accused were prosecuted under TADA and Arms
    Act.

           On the basis of sanction order and other witnesses and materials
    adduced on behalf of the prosecution, the Designated Court convicted the
G   first accused and sentenced him to undergo imprisonment for 7 years
    under Section S of TADA. The other three accused were convicted and were
    sentenced to undergo imprisonment for S years under Section S of TADA.

           In this Appeal, appellants contended inter alia that the evidence of
    the pi:osecution was unrealistic and unreliable and that there was no valid
H   sanction for prosecution.
                                         356
              RAMBHAI NATH BHAI GANDHVI v. STATE                       357

      Allowing the appeal, this court                                        A

      HELD: 1.1. Valid sanction is sine qua non for enabling the prosecut-
ing agency to approach the court in order to enable the court to take
cognizance of the offence under TADA as disclosed in the report. The
corollary is that, if there was ·no valid sanction the Designated Court gets B
no j'urisdiction to try a case against any person mentioned in the report
as the court is forbidden from taking cognizance of the offence without
such sanction. If the Designated Court has taken cognizance of the offence
without a valid sanction, such action is without jurisdiction arid any
proceedings adopted thereunder will also be without jurisdiction.
                                                                  [361-B-D] C
      1.2. Taking cognizance is the act which the Designated Court has to
perform and granting sanction is an act which the sanctioning authority
has to perform. Latter is the permission to prosecute a particular person
for the offence or offences under TADA. Sanction is not granted, to the
Designated Court to take cognizance of the offence but it is granted to the D
prosecuting agency to approach the court concerned for enabling it to take
cognizance of the offence and to proceed to trial against the persons
arraigned in the report. [360-H; 361-A-B]

       2.1. The sanction order makes reference only to two doCUIJlents which E
alone were available for the DGP to consider whether sanction should be
accorded or not. One is the FIR in this case and the other is the letter sent
by Superintendent of Police seeking permission or sanction. No doubt in
that letter to the DGP the Superintendent of Police had narrated the facts
of the case. But he did not send any other documents relating to the
investigation or copy thereof along with the application. Nor did the DGP
                                                                              F
call for any documents for his peJ:'.nsal. All that the DGP had before him
to consider the question of granting sanction to prosecute were the copy
of the FIR and the application containing some skeleton facts. There is
nothing on record to show that the DGP called the superintendent of police
at least for a discussion with him. In such a situation, it cannot be said G
that the sanctioning authority granted sanction after applying its mind
effectively and after reaching a satisfaction that it is necessary in public
interest that prosecution should be launched against the accused under
TADA. As the provision of the TADA are more rigorous and the penalty
provided is more stringent and the procedure for trial prescribed is H
    358                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A summary and compendious, the sanctioning process mentioned in Section
    20-A[2) must be adopted more seriously and exhaustively than the sanc-
    tion contemplated in other penal statutes. [362-C-F]

        2.2. Apart from that, the non-application of mind by DGP, is even
  otherwise writ large in this case. In the instant case what the DGP did was
B to grant permission to add sections 3, 4 and 5 of TADA and not any
  sanction to prosecute the appellants. It is pertinent to note that the
  permission to add sections 3, 4 and 5 of TADA had been granted by the
  Home· Secretary, the competent authority, much earlier and no such
  permission was sought for from the DGP by the DSP. The Designated
C Court thus, failed to notice that the sanction order was not an order of
  sanction but unnecessary permission of the DGP to add sections 3,4, and
  5 of TADA. The DGP apparently acted in a very casual manner and instead
  of discharging his statutory obligation under Section 20· A[2) to grant [or
  not to grant) sanction for prosecution proceeded to deal with the request
D of the DSP contained in his letter as if it was a letter seeking permission
  to apply the .Provisions of TADA. So, there can be no doubt that the
  sanction relied on by the prosecution in this case was not accorded by this
  DGP in the manner required by law. Sanction order, in the instant case,
  is not the result of a serious consideration and the document n:flects
  scanty application of mind of the sanctioning authority into vital and
E crucial aspects concerning the matter. It vitiates sanction and sanction
  order cannot be treated as sanction under Section 20·A[2) of TADA.
                                                           [363-F-H; 364-A-E]
         Hitendra Vishnu Takur v. State of Maharashtra, [1994] 4 SCC 602 and
    Anirndhsinhji Karansinhji Jadeja v. State of Gujarat, [1995] 5 SCC 302,
F relied on.      ·

         3.1. Power of Designated Court to charge the accused with any
   offence other than TADA offence can be exercised only in a trial conducted
   for any offence under TADA. When trial for offence under TADA could not
   have been held by the Designated Court for want of valid sanction en-
G visaged in Section 20-A[2] the consequence is that no valid trial could have
   been held by that court into any offence under the Arms Act also. It is clear
   that a Designated Court has no independent power to try any other offence.
   Therefore, no conviction under Section 25 of the Arms Act is possible on
   the materials collected by the Designated Court in the present case.
II                                                                   [365-C-DJ
       RAMBHAI NATH BHAI GANDHVI v. STATE [THOMAS, J.)                  359

      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. A
1909 of 1996 Etc.                             ·

     From the Judgment and Order dated 10.10.96 of the Designated
Court in Jamnagar at Gujarat in Special (TADA) Case No. 8 of 1994.

      Sushi! Kumar, A.V. Palli, Atul Sharma and Mrs. Rekha Palli for the       B
Appellants; Dr. N.M Ghatate, Ms. Rekha Pande and Ms. Hemantika Wahi
for the Respondent.

      The Judgment of the Court was delivered by

      THOMAS, J, The Designated Court, Jamnagar convicted 4 persons            C
under Section 5 of the Terrorist and Disruptive Activities (Prevention) Act,
1987, (for short 'TADA'). They were also tried for certain offences under
Section 25 of the Arms Act, 1959 but the trial judge refrained from
convicting them under that section on the premise that the other offence
under TADA is a cognate offence of a graver dimension. In the matter of        D
sentence the trial court awarded rigorous imprisonment for 7 years as
against first accused Rambhai Nathabhai Gadhvi, while the three others
were given only a sentence of rigorous imprisonment for 5 years each. The
convicted persons have come up in appeal under Section 19 of TADA and
the State of Gujarat have filed an appeal for enhancement of the sentence      E
of the first accused to the maximum limit provided in law. We heard both
appeals together.

      First accused is the father of second accused Kalu Rambhai Gadhvi
and also elder brother of the fourth accused Nagshi Nathabhai Gadhvi.
The third accused Hitesh Vajshi Pindariya is their neighbour. The nub of       p
the case against them is that they all were actively engaged in smuggling of
goods particularly arms and ammunitions. First accused is described as the
kingpin of the joint venture of all the accused in the nefarious activities.

       Further details of the prosecution case would show that the District
Superintendent of Police, Jamnagar, got some information about the G
activities of the accused and so he proceeded to their residence at
Khambalia (in Jamnagar District) with a posse of police personnel during
the wee hours on 18.6.1993. On the way, he secured the presence of the
Sub Divisional Magistrate (PW-4) and two other persons for witnessing the
operation which was in the offing. On arrival at the residence of the first H
    360                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

A accused the Superintendent of Police knocked at the door and first accused
    opened the door with a pistol in his hand, but was suddenly overpowered
    by the police. The Superintendent of Police also succeeded in snatching
    the pistol from him. Police party then raided the house of the second
    accused and seized one gun and another air gun and a belt containing 10
B   cartridges besides currency notes for Rs. 67,000. When the person of the
    third accused was searched a pistol and some cartridges were recovered.
    Thereupon the police wanted to raid the ice factory of the accused. In that
    operation they succeeded in unearthing 9 boxes containing smuggled
    goods. First accused was arrested and on interrogation the Superintendent
C   of Police came to know of the places where first accused had hidden other
    articles. When he was taken to one such place he removed a heap of stones
    and disintered a bag containing submachine guns, pistols, cartridges etc.
    From another place some more firearms and ammunitions were recovered.
    On 23.6.1993 police arrested the fourth acc11sed and recovered a pistol
    from a place where that firearm was concealed.
D
          After obtaining sanction purportedly under Section 20A[2] of TADA
    the prosecution was launched against all the accused. After trial the
    Designated Court convicted the four accused and sentenced them as
    aforesaid.
E          Learned counsel for the appellant adopted a twin strategy to get the
    appellants absolved of the conviction and sentence. Counsel attacked the
    veracity of the evidence and tried to persuade us to hold that the evidence
    of the prosecution is unrealistic <.md unreliable. Next he focussed on the
    validity of the sanction under section 20A of TADA.
F
          It is advantageous to advert first to the contention relating to validity
    of the sanction, for, if that contention deserves approval it renders the
    entire trial vitiated and then it would be unnecessary to harp on the other
    contention.
G         Under Section 20A(2) of TADA : "No Court shall take cognizance
    of any offence under this Act without the previous sanction of the
    Inspector-General of Police, or as the case may be, the Commissioner of
    Police."

H         Taking cognizance is the act which the Designated Court has to
       RAMBHAI NATII BHAI GANDHVI v. STATE [THOMAs, J.]                361

perform and granting sanction is an act which the sanctioning authority has A
to perform. Latter is a condition precedent for the former. Sanction
contemplated in the sub-section is the permission to prosecute a particular
person for the offence or offences under TADA We must bear in mind
that sanction is not granted to the Designated Court to take cognizance
of the offence, but it is gra~ted to the prosecuting agency to approach the B
court concerned for enabling it to take cognizance of the offence and to
proceed to trial against the persons arraigned in the report. Thus a valid
sanction is sina qua 11011 for enabling the prosecuting agency to approach
the court in order to enable the court to take congizance of the offence
under TAD A as disclosed in the report. The corrolary is that, if there was
no valid sanction, the Designated Court gets no jurisdiction to try a case C
against any person mentioned in the report as the court is forbidden from
taking cognizance of the offence without such sanction. If the Designated
Court has taken cognizance of the offence without a valid sanction, such
action is without jurisdiction and any proceedings adopted thereunder will
also be without jurisdiction.                                               D
      In this case the prosecution relies on Ext.63, an order issued by the
Director General of Police, Ahmedabad, on 3.9.1993, as the sanction under
Section 20A(2) of TADA We are reproducing Ext. 63 below:

                   "Sr. No. J-1/1909/1/Khambalia 55/93 Director General       E
                   of Police, Gujarat State, Ahmedabad

                   Dt. 3.9.93

         Persued: (1) FIR in respect of offence registered No. 55/93 at
         Khambalia Police Station 25(l)(b) (a)(b) of Arms Act and sections    F
       . 3, 4 & 5 of the TADA.

          (2) Application sent by DSP Jamnagar vide his letter No.
        RB/D/122/1993/1820 dt. 9.8.93.

        Having considered the FIR in respect of offence Registered No. G
        55/93 at Khambalia Police Station District Jamnagar under Section
        25(1)(b)(a)(b) of Arms Act and section"s 3, 4 & 5 of TADA and
        letter No. RB/0/122/1993/1820 of DsP dt. 9.8.93 seeking permis-
        sion to apply the provisiovs of TADA carefully. I AR. Tandon,
        Director General of Police, Gujarat State, Ahmedabad under the H
    362                  SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A           powers conferred under the Amended provisions of TADA (1993)
            Section 20(A)(2) give permission to add Section 3, 4 & 5 of TADA.

                                          AR. TONDON
                                   DIRECTOR GENERAL OF POLICE
                                          AHMEDABAD
B                                            GUJARAT"

          Apparently ext. 63 makes reference only to two documents which
    alone were available for the Director General of Police to consider whether
    sanction should be accorded or not. One is the FIR in this case and the
C   other is the letter sent by the Superintendent seeking permission or sanc-
    tion. No doubt in that letter to the Director General of Police the Super-
    intendent of Police had narrated the facts of the case. But we may observe
    that he did not send any other document relating to the investigation or
    copy thereof along with the application. Nor did the Director General of
D   Police call for any document for his perusal. All that the DGP had before
    him to consider the question of granting sanction to prosecute were the
    copy of the FIR and the application containing some skeleton facts. There
    is nothing on record to show that the Director General of Police called the
    Superintendent of Police atleast for a discussion with him.

E          In such a situation, can it be said that the sanctioning authority
    granted sanction after applying his mind effectively and after reaching a
    satisfaction that it is necessary in public interest that prosecution should
    be launched against the accused under TADA. As the provisions of TADA
    are more rigorous and the penalty provided is more stringent and the
F   procedure for trial prescribed is summary and compendious, the sanction-
    ing process mentioned in Section 20A(2) must have been adopted more
    seriously and exhaustively than the sanction contemplated in other penal
    statutes. One of us (Dr. Anand, J.) has explained in Hitendra Vishnu
    Thakur and Ors. v. State of Maharashtra and Ors., [1994] 4 SCC 602, while
    dealing with sanction under Section 20A of TADA, that
G
            "The section was obviously introduced to safeguard a citizen from
            any vaxatious prosecution under TADA. Vide Section 20-A(2) of
            TADA no court can take cognizance of an offence under TADA
            unless there is. a valid sanction accorded by this competent
H           authority as prescribed by the section."
       RAMBHAI NATH BHAI GANDHVI v. STATE (THOMAS, J.]                363

      In Anirndhsinhji Karansinhiji Jadeja and·Anr. v. State of Gujarat, A
(1995] 5 SCC 302, a three Judges Bench had looked at the broad principles
governing sanction contemplated under TADA. The Bench noted in that
case that for prosecution under TADA the State Government had provided
two administrative instructions as additional safeguards against.the drastic
provisions of TADA wherein the DSP would require the consent of the
State Government. When the consent relied on by the prosecution in that B
case was considered the three Judges Bench observed that it was given by
the State Government without proper application of mind, even though the
said consent was granted on the strength of "a quite exhaustive" letter
addressed by the DSP. The following observations are pertinent :

        "Now, no doubt the message of the DSP is quite exhaustive, as
                                                                             c
        would appear from that message which has been quoted above in
        full, we are inclined to think that before agreeing to the use of
        harsh provisions of TADA against the appellants, the Government
        ought to have taken some steps to satisfy itself whether what had
        been stated by the DSP was borne out by the records, which ap-       D
        parently had not been called for in the present case, as the
        sanction/consent was given post-haste on 18.3.1995, i.e., the very
        next day of the message of the DSP."

                                                     (emphasis supplied)
                                                                             E
      If the consenting exercise even in respect of an administrative in-
struction was construed to be of such a meaningfull and serious matter it
is needless to point out that sanctioning exercise under a statutory
provision like Section 20A(2) would be no less.

      Apart from what we have noticed above, the non-application of mind F
by the Director General of Police, Gujarat State, is even otherwise writ
large in this case. A perusal of Ext. 63 (supra) shows that the Director
Genera:! of Police in fact did not grant any sanction for the prosecution of
the appellants. Last part of the order reads : "I A.R Tandon, Director
General of Police, Gujarat State, Ahmedabad under the powers conferred G
under the Amended provisions of TADA (i993) Section,20(A)(2) give
pennission to add Section 3, 4 and 5 of TADA." Thus, what the Director
General of police did was to grant pennission "to add Section 3, 4 and 5 of
TADA" and not any sanction to prosecute the appellants. It is pertinent to
note here that the permission to add Sections 3, 4 and 5 of TADA had
been granted by the Home Secretary, the competent authority, much H
        364                   SUPREME COURT REPORTS [1997] SUPP. 3 S.C.R.

    A earlier and no such permission was sought for from the Director General
      of Police by the DSP. The Designated Court thus, failed to notice that Ext.
      63 was not an order of s~.nction but an unnecessary permission of the
      Director General of Police to add Sections 3, 4 and 5 of TADA. The
      Director General of Police, apparently, acted in a very casual manner and
      instead of discharging his statutory obligations under Section 20(A)(2) to
    B grant (or not to grant) sanction for prosecution proceeded to deal with the
      request of the DSP contained in his letter dated 9.8.1993, as if it was a
      letter seeking pennission to apply the provisions of TADA. The exercise
      exhibits that the Director General of Police did not even read, let alone
      consider "care fully'', the FIR and the letter of the DSP dated 9.8.1983. We
    C cannot but express our serious concern at this casual approach of the Director
      General of Police. On a plain reading of Ext. 63, therefore, we must hold that
      it is not an order of sanction to prosecute the appellants as required by
        Section 20(A)(2) of the Act.

              In view of the aforesaid legal and factual position we have no doubt
    D that sanction relied on by the prosecution in this case was not accorded by
        the Director General of Police in the manner required by law. Ext.63 is
        not the result of a serious consideration and the document reflects scanty
        application of the mind of the sanctioning authority into vital and crucial
        aspects concerning the matter. It vitiates sanction and hence Ext. 63 cannot
    E   be treated as sanction under Section 20A(2) of TADA.

               Faced with this situation, learned counsel for the State of Gujarat
        contended that it is open to this Court to convict the accused under Section
        25 of the Arms Act with the available evidence on record since the interdict
        contained in Section 20A(2) of the TADA has no application to the offence
    F   under the Arms Act.

            The said contention cannot be accepted for obvious reasons. Trial in
      respect of the offence under Section 25 of the Arms Act was conducted by
      the Designated Court under the purported power conferred by Section 12
    G of the TADA. The said Section read thus :

                 Power of Designated Courts with respect to other offences - (1)
/
                 When trying any offence, a Designated Court may also try any
                 other offence with which the accused may, under the Code, be
                 charged at the same trial if the offence is connected with such
    H            other offence.
        RAMBHAI NATII BHAI GANDHVI v. STATE (TIIm~1AS, J.]              365

         (2) If, in the course of any trial under this Act of any offence, it A
         is found that the accused person has committed any other offence
         under this Act or any rule made thereunder or under any other
         law, the Designated Court may convict such person of such other
         offence and pass any sentence authorised by this Act or such rule
         or, as the case may be, such other law, for the punishment thereof.
                                                                               B
         It is obvious that power of the Designated Court to charge the
  accused with any offence other than TADA offences can be exercised only
  in a trial conducted for any offence under TADA. When trial for offence
  under TADA could not have been held by the Designated Court for want
  of valid sanction envisaged in Section 20-A(2) the consequence is that no    C
  valid trial could have been held by that court into any offence under the
· Arms Act also. It is clear that a Designated Court has no independent
  power to try any other offence. Therefore, no conviction under Section 25
  of the Arms Act is possible on the materials collected by the Designated
  Court in the present case.
                                                                               D
        In view of the above legal position we have to record an order of
 acquittal of the accused. We, therefore, set aside the conviction and
 sentence passed on them and acquit them and direct them to be set at
 liberty forthwith unless they are required in any other case. Bail bonds
 executed by accused 4 shall stand discharged.                                 E

        Learned counsel for the State of Gujarat submitted that we may
 clarify that acquittal of the accused on the above ground would not
 preclude the State from launching a prosecution afresh with valid sanction.
 We may observe that if the State Government considers the feasibility of      F
 launching any such fresh prosecution it would bear in mind the fact that
 first accused has remained in jail for all these years pursuant to the
 prosecution already launched against him and, therefore, whether it would
 be desireable to launch fresh prosecution.

     Criminal Appeal No. 1909 of 1996 is thus, allowed and Criminal            G
 Appeal No. 162 of 1997 is dismissed.

 P.T.                                          Crl. A. No. 1909/96 allowed.
                                               Crl. A No. 162/97 dismissed.