Supreme Court Upholds Acquittal in TADA Case Due to Invalid Sanctions: State of Gujarat vs. Anwar Osman Sumbhaniya (27 February 2019)

Date of the Judgment: 27 February 2019
Citation: [Not Available in Source]
Judges: A.M. Khanwilkar, J., Ajay Rastogi, J.
Can a conviction under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) stand if the mandatory prior sanctions for prosecution are invalid? The Supreme Court of India addressed this critical question in a case where the accused were acquitted by the Designated Court due to lack of valid prior sanctions. This judgment underscores the importance of adhering to procedural safeguards, especially in cases involving stringent laws like TADA. The bench, comprising Justices A.M. Khanwilkar and Ajay Rastogi, delivered the unanimous judgment.

Case Background

The case began with a complaint lodged by Bakul Vithalbhai Jani (PW-6) on the basis of information that Anwar Osman Subhaniya (Respondent No. 1) was illegally possessing foreign-made firearms at his residence in Salaya Barlovas. On June 18, 1993, a raiding party, after obtaining prior approval from Pramod Kumar Jha, DSP (PW-15), searched Subhaniya’s house and seized several items, including a foreign-made carbine gun, two revolvers, a transmitter walky-talky set, and live cartridges. Following the seizure, an FIR was lodged against Subhaniya, and he was arrested on the same day.

Later, Junas Hazi Ibrahim (Respondent No. 2) was arrested on March 20, 1997, based on his confessional statement that he had sold a carbine gun to Subhaniya. Subsequently, another accused, (Respondent No. 3), was arrested in 2005 in connection with another case registered under TADA. Separate charge sheets were filed against all three respondents, leading to the Special TADA cases before the Designated Court at Jamnagar. The cases were consolidated for the recording of evidence.

Timeline

Course of Proceedings

The Designated Court framed charges against the respondents on September 12, 2005, to which they pleaded not guilty. The prosecution examined 15 witnesses and presented documentary evidence. The respondents did not produce any defense witnesses. The Designated Court then considered the arguments and framed seven issues for consideration.

The Designated Court, despite not framing an issue regarding the validity of prior approval under Section 20-A(1) or prior sanction under Section 20-A(2) of TADA, addressed these issues first. It concluded that neither prior approval nor prior sanction was in accordance with the law. Consequently, the court held that the respondents could not be further prosecuted under TADA. The court also noted that the confessional statements recorded under TADA were inadmissible due to the lack of valid sanction. Additionally, the search and seizure procedures were deemed illegal, leading to the acquittal of the respondents.

Legal Framework

The case primarily revolves around the interpretation and application of the following legal provisions:

• Section 20-A of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA): This section mandates prior approval for the registration of a case under TADA and prior sanction for the prosecution of the accused. Specifically, Section 20-A(1) requires prior approval for registering an FIR under TADA, and Section 20-A(2) requires prior sanction for taking cognizance of an offense under TADA.
• Sections 121, 121A, and 122 read with Section 34 of the Indian Penal Code (IPC): These sections deal with offenses related to waging war against the Government of India, conspiracy, and attempts to wage war.
• Sections 3, 4, and 5 of TADA: These sections define and penalize terrorist acts, disruptive activities, and possession of unauthorized arms and ammunition.
• Sections 25(1)(A)(D), 25(1AA), 25(1B)(A B F G), 27(1), and 29(A) of the Arms Act, 1959: These sections deal with offenses related to the possession and use of firearms without a license.
• Section 20 of the Indian Telegraph Act, 1885: This section pertains to offenses related to the unauthorized use of telegraphs.
• Section 6(1-A) of the Indian Wireless Telegraphy Act, 1933: This section deals with offenses related to the unauthorized possession and use of wireless telegraphy apparatus.

The legal framework is set within the context of the stringent provisions of TADA, which was enacted to combat terrorism and disruptive activities. The Supreme Court’s analysis focuses on ensuring that the procedural safeguards provided by TADA are strictly adhered to, to protect the rights of the accused.

Arguments

Appellant (State of Gujarat) Arguments:

• The Designated Court erred in concluding that no valid prior approval under Section 20-A(1) of TADA was obtained. The State argued that even oral approval followed by written approval is valid, supported by contemporaneous records.
• The prior sanction accorded by A.K. Tandon (PW-14) was valid, as it was given after due consideration of relevant materials and was not a case of non-application of mind.
• The prior sanction by A.K. Bhargav for accused No. 3 was also valid, backed by relevant material, as evident from the evidence of Raghuvirsinh Surubha Chudasama, Dy.S.P. (PW-13) and Yashodhar Ramchandra Vaidya (PW-10).
• Even if the prosecution suffered from lack of valid approval or sanction, the Designated Court should have transferred the case to a regular court under Section 18 of TADA, instead of acquitting the accused.
• The Designated Court should have given the prosecution an opportunity to launch a fresh prosecution with a valid sanction, as per the dictum in Rambhai Nathabhai Gadhvi & Ors. Vs. State of Gujarat.

Respondents’ Arguments:

• While conceding that the three-judge bench decision in State of A.P. Vs. A. Sathyanarayana and Ors. holds the field regarding the validity of prior oral approval followed by written approval, the respondents contended that the prior sanction under Section 20-A(2) of TADA suffered from non-application of mind.
• The respondents relied on Gadhvi’s case, where a similar sanction order issued by A.K. Tandon (PW-14) in another TADA case was deprecated for its casual approach and lack of proper consideration.
• The sanction order (Exh. 84) only referred to the FIR and the office note, without showing any real application of mind by the sanctioning authority.
• The sanction order (Exh. 57) for accused No. 3 was also invalid, as the evidence only showed recovery of two walkie-talkies, which does not constitute an offense under TADA.
• The respondents argued that the sanctioning authority failed to evaluate the materials gathered during the investigation before concluding that a terrorist act had been committed.

Innovativeness of the Argument: The respondents innovatively used the Supreme Court’s own previous judgment in Gadhvi’s case, where the same sanctioning authority (A.K. Tandon) had been criticized for a similar casual approach, to argue that the sanction in the present case was also invalid. This strategic use of precedent effectively highlighted the lack of due diligence in the sanctioning process.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in the judgment. However, the core issues addressed by the court were:

1. Whether the prior sanction orders under Section 20-A(2) of TADA were valid.
2. Whether the Designated Court could have taken cognizance of the offenses under TADA in the absence of a valid sanction.
3. Whether the Designated Court could have convicted the respondents for offenses under other enactments in the absence of a valid TADA sanction.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Judgment

How each authority was viewed by the Court:

• Rambhai Nathabhai Gadhvi & Ors. Vs. State of Gujarat [(1997) 7 SCC 744]:* The Court relied on this case to highlight the casual approach of A.K. Tandon, the sanctioning authority, and held that the sanction order (Exh. 84) was invalid due to non-application of mind.
• State of A.P. Vs. A. Sathyanarayana and Ors. [(2001) 10 SCC 597]:* The Court acknowledged this case as the prevailing law, accepting the validity of oral approval followed by written approval for registering an FIR under TADA.
• Prakash Kumar alias Prakash Bhutto Vs. State of Gujarat [(2005) 2 SCC 409]:* The Court relied on this case to reiterate that a Designated Court can try other offenses connected to TADA offenses, even if no TADA offense is made out.
• Ashrafkhan alias Babu Munnekhan Pathan & Anr. Vs. State of Gujarat [(2012) 11 SCC 606]:* The Court cited this case to show that the Designated Court could try offenses under other enactments if there was legally admissible evidence.

What Weighed in the Mind of the Court?

The Supreme Court’s decision was primarily influenced by the procedural lapses in obtaining valid sanctions under Section 20-A(2) of TADA. The Court emphasized the importance of adhering to the mandatory requirements of the law, especially in cases involving stringent provisions like TADA. The Court was also concerned about the casual approach of the sanctioning authorities, who failed to properly assess the evidence before granting sanctions. The Court noted that the confessional statements recorded under TADA were inadmissible in the absence of valid sanctions, and the evidence regarding search and seizure was also deficient. The Court’s reasoning was driven by the need to ensure that the rights of the accused are protected and that the legal process is followed meticulously.

Logical Reasoning:

The Court rejected alternative interpretations that would have allowed the convictions to stand, emphasizing that the mandatory requirements of the law must be strictly followed. The final decision was reached by upholding the Designated Court’s acquittal due to the invalid sanctions and lack of legally admissible evidence.

The court’s reasoning was based on the principle that procedural safeguards, especially in stringent laws like TADA, must be meticulously followed. The court held that the sanction orders issued by A.K. Tandon and A.K. Bhargav were invalid as they did not demonstrate a proper application of mind. The court also noted that the confessional statements recorded under TADA were inadmissible due to the lack of a valid sanction. The court also highlighted the deficiencies in the search and seizure procedures, further weakening the prosecution’s case.

The majority opinion, authored by Justice A.M. Khanwilkar, was unanimous, with Justice Ajay Rastogi concurring. There were no dissenting opinions.

“The necessity of obtaining prior sanction under Section 20-A(2) need not be underscored considering the draconian provisions of TADA.”

“On a fair reading of this document it is evident that the author of the document A.K. Tandon, DGP (PW-14), adverted only to the FIR and the proposal received from DSP, Jamnagar.”

“In our opinion, the purported sanction vide Exh.57 also suffers from the vice of non-application of mind, on this count alone.”

Key Takeaways

• Importance of Valid Sanctions: The judgment underscores the critical importance of obtaining valid prior sanctions under Section 20-A(2) of TADA before prosecuting an individual for offenses under the Act.
• Procedural Safeguards: It highlights the need for strict adherence to procedural safeguards, particularly in cases involving stringent laws like TADA, to protect the rights of the accused.
• Application of Mind: The sanctioning authorities must demonstrate a clear application of mind when granting sanctions, ensuring that they have thoroughly assessed the evidence and relevant facts.
• Admissibility of Confessions: Confessional statements recorded under TADA are inadmissible if the prosecution fails to obtain a valid sanction to prosecute under TADA.
• Designated Court’s Powers: Designated Courts have the power to try offenses under other enactments connected to TADA offenses, but only if there is legally admissible evidence to support those charges.

Potential Future Impact: This judgment serves as a reminder to law enforcement agencies and sanctioning authorities to exercise due diligence and ensure that all procedural requirements are met before initiating prosecution under stringent laws like TADA. It also reinforces the importance of judicial review in safeguarding the rights of the accused.

Directions

The Supreme Court did not issue any specific directions in this judgment, other than dismissing the appeals filed by the State of Gujarat.

Development of Law

The ratio decidendi of this case is that a sanction order under Section 20-A(2) of TADA must demonstrate a clear application of mind by the sanctioning authority, and a casual approach or mere reference to the FIR and proposal is insufficient. This judgment reinforces the importance of procedural compliance and the protection of the rights of the accused in cases under stringent laws. This judgment also clarifies that a designated court can try cases under other enactments if there is legally admissible evidence.

Conclusion

The Supreme Court dismissed the appeals filed by the State of Gujarat, upholding the acquittal of the respondents. The Court found that the prior sanction orders under Section 20-A(2) of TADA were invalid due to a lack of proper application of mind by the sanctioning authorities. The Court also held that the Designated Court could not have taken cognizance of the offenses under TADA due to the invalid sanctions. Additionally, the Court found that the prosecution’s case for offenses under other enactments was also weak due to the inadmissibility of confessional statements recorded under TADA and the deficiencies in the search and seizure procedures. This judgment underscores the critical importance of procedural safeguards and the need for a thorough application of mind by sanctioning authorities in cases involving stringent laws like TADA.

Category

Parent Category: Terrorist and Disruptive Activities (Prevention) Act, 1987

Child Categories:

• Section 20-A, Terrorist and Disruptive Activities (Prevention) Act, 1
• Supreme Court Judgments
• Criminal Law
• Sanction for Prosecution
• Procedural Law