EBHA ARJUN JADEJA & ORS. versus THE STATE OF GUJARAT

Citation: [2019] 13 S.C.R. 741 · Decided: 16-10-2019 · Supreme Court of India · Bench: DEEPAK GUPTA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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EBHA ARJUN JADEJA & ORS.
v.
THE STATE OF GUJARAT
(Criminal Appeal No. 1692 of  2009)
OCTOBER 16, 2019
[DEEPAK GUPTA  AND ANIRUDDHA BOSE, JJ.]
Terrorist and Disruptive Activities (Preventive) Act, 1987 –
s. 20-A(1)  –  Compliance of – Three accused persons were stopped
and personally searched by the police – Police recovered one
foreign made pistol and 2 country made tamancha from them –  FIR
was registered u/ss. 25(1)(Ba), 27 of the Arms Act and s. 135 of
the Bombay Police Act and u/s. 5 of TADA Act and arrangement
was made for obtaining the sanction of the District Superintendent
of Police u/s. 20(A(1) of the TADA Act – Appellants contended that
in terms of s. 20-A(1) of TADA Act, no information about
commission of offence could have been recorded under TADA Act
without the approval of the District Superintendent of Police and
therefore, it vitiates the entire proceeding under TADA Act – Held:
Provisions of s.20-A(1) are mandatory – 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 – The bar u/s. 20-A(1) of TADA applies to information
recorded u/s. 154 Cr.P.C. –  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 – No information
can be recorded u/s. 154 Cr.P.C. for commission of an offence
under TADA Act without the sanction of the competent authority –
Further, it has to be seen that 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 s.20-A(1) of
TADA Act – This will have to be decided in the facts of each case
– In the instant case, the only information recorded which
constitutes an offence was recovery of the arms – The area where
accused were carrying arms was notified area under TADA Act and
carrying arms in notified area is itself an offence under TADA Act
   [2019] 13 S.C.R. 741
741
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SUPREME COURT REPORTS
[2019] 13 S.C.R.
– There  were no other offences of rape, murder etc. in this case
– Therefore in the present case, non-compliance of s. 20-A(1)
vitiates the proceedings under the TADA Act – Accordingly,
appellants discharged in so far as the offence under TADA Act is
concerned, however, they can be proceeded against under the
provisions of the Arms Act – Arms Act 1959 – ss. 25(1)(Ba), 27 –
Bombay Police Act – s.135.
Allowing the appeal, the Court
HELD:  1.The language of the Section 20-A of the
Terrorist and Disruptive Activities (Prevention) Act, 1987 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. [Para 6] [747-C]
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.
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Otherwise, there could be no communication seeking sanction,
which could not have b

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