EBHA ARJUN JADEJA & Ors. v. THE STATE OF GUJARAT

#2. The word ‘FIR’ is not used in Section 154 of CrPC, though it is now commonly used with regard to information recorded under Section 154. Therefore, whenever information relating to commission of a cognizable offence is given orally then the officer-in-charge of the police station is bound to record that information in a book to be kept for such offences in such form as the State Government may prescribe in this behalf. What is prohibited under Section 20-A(1) of TADA Act is the recording of information. It can be presumed that the Legislature while introducing Section 20-A(1) in TADA Act was also aware of the provisions of Section 154 of CrPC. Therefore, the clear- cut intention was that no information of commission of an offence under TADA Act would be recorded by the police under Section 154 of CrPC without sanction of the competent authority. The reason why Section 20-A(1) was introduced into TADA Act in the year 1993 by amendment was that because the provisions of TADA Act were very stringent, the Legislature felt that a senior official should look into the matter to ensure that an offence under TADA is made out and then grant sanction. [Para 13] [751-C-E]

#3. The bar under Section 20-A(1) of TADA Act applies to information recorded under Section 154 of CrPC. This bar will not apply to a rukka or a communication sent by the police official to the District Superintendent of Police seeking his sanction. EBHA ARJUN JADEJA & ORS. v. STATE OF GUJARAT 743 Otherwise, there could be no communication seeking sanction, which could not have been the purpose of TADA Act. [Para 14] [751-F]

#4. Each case is to be decided on its own facts. The police official, not being the District Superintendent of Police, may receive information of commission of an offence and may reach the scene of a crime. He can record the information on the spot and then send a rukka to the police station for recording of FIR. There may be cases of serious offences like murder, rape, offences under Narcotic Drugs and Psychotropic Substances Act, 1985, Protection of Children from Sexual Offences (POCSO) Act, 2012 etc. where any delay in investigation is fatal. In these cases, the police officer is entitled to record the information some of which may indicate an offence under TADA Act, also because non-recording of the information with regard to the main offence may delay the investigation and hamper proper investigation in the matter. In such cases, while recording the information and recording the FIR, for the offences falling under TADA Act, the police officials concerned can approach the District Superintendent of Police for sanction under Section 20- A(1) of TADA Act. The investigation in serious cases of murder, rape, smuggling, narcotics, POCSO Act etc. cannot be delayed only because TADA Act is also involved. [Para 15] [751-G-H; 752-A-C]

#5. At the same time, where the information basically discloses an offence under TADA Act and the other offence is more in the nature of an ancillary offence then the information cannot be recorded without complying with the provisions of Section 20-A(1) of TADA Act. This will have to be decided in the facts of each case. In the case in hand, the only information recorded which constitutes an offence is the recovery of the arms. The police officials must have known that the area is a notified area under TADA Act and, therefore, carrying such arms in a notified area is itself an offence under TADA Act. It is true that this may be an offence under the Arms Act also but the basic material for constituting an offence both under the Arms Act and TADA Act is identical i.e. recovery of prohibited arms in a notified area under TADA Act. The evidence to convict the accused for crimes under the Arms Act and TADA Act is also A B C D E F G H 744 SUPREME COURT REPORTS [2019] 13 S.C.R. A B C D E F G H the same. There are no other offences of rape, murder etc. in this case. Therefore, as far as the present case is concerned, non-compliance of Section 20-A(1) of TADA Act is fatal and there is no other option but to discharge the appellants in so far as the offence under TADA Act is concerned. This Court makes it clear that they can be proceeded against under the provisions of the Arms Act. [Para 16] [752-D-F] Rangku Dutta @ Ranjan Kumar Dutta v. State of Assam (2011) 6 SCC 358 : [2011] 8 SCR 639; Anirudhsinhji Karansinhji Jadeja & Anr. v. State of Gujarat (1995) 5 SCC 302 : [2012] 12 SCR 1033 ; Ashrafkhan & Anr. v. State of Gujarat (2012) 11 SCC 606 : [2012] 12 SCR 1033 ; Hussein Ghadially & Ors. v. State of Gujarat (2014) 8 SCC 425 : [2014] 9 SCR 364 – relied on. Case Law Reference [2011] 8 SCR 639 [2012] 12 SCR 1033 [2012] 12 SCR 1033 [2014] 9 SCR 364 relied on relied on relied on relied on Para 7 Para 8 Para 9 Para 10 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1692 of 2009. From the Judgment and Order dated 16.07.2009 of the Designated Court at Porbandar in Special TADA Case No. 6 of 1995. Sanjay Jain, Sudarshan Singh Rawat, Advs. for the Appellants. Aniruddha P. Mayee, Ms. Deepanwita Priyanka, Advs. for the Respondent. The Judgment of the Court was delivered by DEEPAK GUPTA, J.

#1. This appeal by the accused is directed against the order passed by the Designated TADA Court whereby the application filed by the accused that they should be discharged due to non-compliance of Section 20-A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as ‘TADA Act”) was dismissed. EBHA ARJUN JADEJA & ORS. v. STATE OF GUJARAT [DEEPAK GUPTA, J.] 745

#2. Briefly stated the facts of the case are that appellant no. 1/ accused no. 1, Ebha Arjun Jadeja, was wanted in Crime No. II-3/1994 registered against him under Section 25(1B)(a) and 27 of the Arms Act, 1959 and under Section 3 and 5 of TADA Act etc.

#3. The prosecution version is that on 10.04.1995, when Police Inspector C.J. Singh along with some other police personnel was doing night round in Kutiyana and was trying to keep a secret watch over bootleggers, he received some information that appellant no. 1, who was absconding in Crime No. II-3/1994, was coming to his village in a motor vehicle. The police inspector arranged two witnesses and after preparing preliminary panchnama, left Kutiyana in a Government jeep at about 1.00-1.15 a.m. They set up a naka and at about 2.45 a.m., one motor vehicle came from the side of village Garej. The vehicle was asked to stop and it stopped. Accused no. 1 was found sitting on the driver’s seat. The police cordoned the motor vehicle in which two other persons (appellant nos.2 and 3) were also sitting. All these three persons were asked to get down and disclose their identities. On making personal search of these three persons, following recoveries were made: S. No. 1. Name of the accused Ebha Arjun Jadeja Recoveries

#1. One foreign made 9mm beretta pistol and three live cartridges and one fired cartridge, valued at Rs.1,50,150/-.

#2. One 32 bore foreign made revolver and 5 live cartridges, valued at Rs. 50,250/-.

#3. One fired cartridge

#3. Bachchu Bhikha Mer Keshu Chana Mer One 315 bore country made tamancha, valued at Rs. 3,000/-. One 12 bore country made tamancha, valued at Rs. 2,000/-.

#4. The three accused persons could not produce any licence and the aforesaid arms were seized. Though the first information report (FIR) was recorded under the Arms Act, in the very same FIR, the officer also recorded as follows: A B C D E F G H 746 SUPREME COURT REPORTS [2019] 13 S.C.R. A B C D E F G H “One 9 MM semi automatic prohibited foreign made pistol and its cartridges loaded in it and Japan made revolver and its cartridges in a loaded condition were found from Mer Ebha Arjan. Out of which, it becomes from the smell coming from the barrel of the pistol and box that the same is used before some time for firing. From the two persons with Jadeja Ebha Arjan, namely, Mer Bachu Bhima and Mer Keshu Chana also, two country made tamanchas are found and Mer Ebha Arjan is a gang leader of gundas in Porbandar area and in that circumstances, the persons as above are found in an Ambassador car no.GJ-M-8905 and it appears that they are going to commit any terrorist activity and so all the three persons were legally arrested for the offence under Sections 25(1)(Ba), 27 of the Arms Act and Section 135 of the Bombay Police Act and motor car Ambassador no.GJM-8905 valuing at Rs.100000/- was also seized in this case. Hence, it is my complaint against them for the offence under Sections 25(1)(BA), 27 of the Arms Act and Section 135 of the Bombay Police Act. My witnesses are panchas with me and the police personnel and others who are found during the investigation. The above persons were found in possession of weapons and cartridges from out of the weapons and explosives mentioned in Arms Rules 1962 Schedule-1 Class-1 and Class-3(A) Column no.2 and 3 in public area and hence, as the offence under Section 5 of TADA Act is also made out and so, arrangement is made for obtaining the sanction of the District Superintendent of Police, Porbandar under Section 20(A)(1) of the Act, by making a report along with copies of the panchnama and F.I.R. and identification sheets of the accused.”

#5. Thereafter on the same day i.e. 10.04.1995, the District Superintendent of Police granted sanction to add Section 5 of TADA Act to the offences already registered. The grievance of the appellants is that in terms of Section 20-A(1) of TADA Act, no information about commission of offence under the Act could have been recorded without approval of the District Superintendent of Police. Therefore, it is contended that the entire initiation of the action wherein the Crime No.II.28/1995 was recorded without sanction of the District EBHA ARJUN JADEJA & ORS. v. STATE OF GUJARAT [DEEPAK GUPTA, J.] 747 Superintendent of Police, vitiates the entire proceedings in so far as they have been initiated under TADA Act. A

#6. Section 20-A of TADA Act reads as under: “20-A. Cognizance of offence.—(1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police. (2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police, or as the case may be, the Commissioner of Police.” The language of the Section is mandatory in nature. It starts with a non-obstante clause. It forbids the recording of information about the commission of offence under TADA Act by the police without prior approval of the District Superintendent of Police.

#7. The provisions of Section 20-A(1) are mandatory. This issue is no longer res integra. In Rangku Dutta @ Ranjan Kumar Dutta v. State of Assam1, this Court held that the provision, which was couched in negative terms is mandatory in nature. Relevant portion of the judgment reads as under: “18. It is obvious that Section 20-A(1) is a mandatory requirement of law. First, it starts with an overriding clause and, thereafter, to emphasise its mandatory nature, it uses the expression “No” after the overriding clause. Whenever the intent of a statute is mandatory, it is clothed with a negative command. Reference in this connection can be made to G.P. Singh’s Principles of Statutory Interpretation, 12th Edn.…”

#8. Learned counsel for the appellants also placed reliance on the judgment of this Court in Anirudhsinhji Karansinhji Jadeja & Anr. v. State of Gujarat2. In this case, the case was registered against the accused initially under the Arms Act. The District Superintendent of Police, instead of giving approval for recording information, made a report to the Additional Chief Secretary, seeking permission to proceed under TADA Act. Thereafter, the Additional Chief Secretary, Home Department, gave sanction to proceed under TADA Act. Dealing with