HUSSEIN GHADIALLY @M.H.G.A. SHAIKH & ORS. versus STATE OF GUJARAT

Citation: [2014] 9 S.C.R. 364 · Decided: 18-07-2014 · Supreme Court of India · Bench: T.S. THAKUR · Disposal: Disposed off

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2014] 9 S.C.R. 364 
A 
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH & ORS. 
B 
v. 
STATE OF GUJARAT 
(Criminal Appeal No.92 of 2009) 
JULY 18, 2014 
[T.S. THAKUR AND C. NAGAPPAN, JJ.] 
Terrorist and Disruptive Activities (Prevention) Act, 1987 
- s. 20A - Cognizance of offence - Registration of FIR - Prior 
C approval of District Superintendent of Police - Mandatory or 
directory - Held: Is mandatory - s. 20A forbids recording of 
information about the commission of offences under TADA 
by the Police without the prior approval of the District 
Superintendent of Police - When the statute vests the grant 
D of approval in an authority specifically designated for the 
purpose, no one except the authority so designated, can 
exercise that power, whether superior or inferior- Exercise of 
the power granting or refusinQ approval u/s. 20-A (1) in its very 
nature casts a duty upon the officer concerned to evaluate the 
E information and determine having regard to all attendant 
circumstances whether or not a c;ase for invoking the 
provisions of TADA is made out - Exercise of that power by 
anyone other than the designated authority, would amount to 
F such other authority clutching at the jurisdiction of the 
designated officer - On facts, power of approval vested in the 
District Superintendent of Police could not be exercised by 
either the Government or the Additional Police Commissioner 
- Requirement of a mandatory statutory provision having been 
G violated, the trial and conviction of the appellants for offences 
under the TADA vitiated - While there may be evidence 
regarding recovery of some of the weapons but it would not 
be sufficient to justify the conviction of the appellants - Even 
otherwise the recovery of the weapons is also not satisfactorily 
H 
364 
HUSSEIN GHADIALLY @M.H.G.A. SHAIKH v. STATE 365 
OF GUJARAT 
proved by cogent and reliable evidence - Thus, conviction 
A 
of the appellants cannot be sustained and is set aside -
Penal Code, 1860 - Explosives Substances Act. 
Twin bomb blasts took place in city 'S'. The trial and 
the conviction of the accused was carried out for the 8 
commission of offences under Penal Code, 1860, 
Explosives Substances Act and Terrorists and Disruptive 
Activities (Preventive) Act, 1985 (TADA). The trial court 
found some of the accused persons guilty and were 
sentenced to imprisonment ranging between 10 to 20 c 
years. Some of the accused were a·cquitted giving them 
the benefit of doubt. With regard to the case registered 
for the first blast, the Additional Chief Secretary, Home 
Department gave approval for recording of information 
regarding commission of offence under TADA and D 
insofar as the second blast, the State Government and 
the Additional Police Commissioner approved application 
of the provisions of TADA . 
. 
The question which arose for consideration in these 
appeals was whether the approvals by the State E 
Government or Additional Police Commissioner can be 
said to be sufficient compliance with the provisions of 
Section 20-A of Terrorists and Disruptive Activities 
(Preventive) Act, 1985, when under the said section the 
power of approval is vested in District Superintendent of F 
Police? 
Disposing of the appeals, the Court 
HELD: 1.1. A careful reading of the section 20-A of G 
the Terrorists and Disruptive Activities Act, 1985 leaves 
no manner of doubt that the provision starts with a non 
obstante clause and is couched in negative phraseology. 
It forbids recording of information about the commission 
of offences under TADA by the Police without the prior H 
366 
. SUPREME COURT REPORTS (2014] 9 S.C.R. 
~ 
A 
approval of the District Superintendent of Police. The 
power of approval vested in the District Superintendent 
of Police could not be exercised by either the 
Government or the Additional Police Commissioner, Surat 
in the instant case. Firstly because the statute vests the 
B grant of approval in an authority specifically' designated 
for the purpose. That being so, no one except the 
authority so designated, can exercise that power. 
Permitting exercise of the power by any other authority 
whether superior or inferior to the authority designated 
C 
by the Statute will have the effect of re-writing the 
provision and defeating the legislature purpose behind 
the same-a course that is legally impermissible. [Para 17] 
[383-C-F] 
D 
Joint Action Committee of Air Line Pilots' Association of 
India (ALPAI) and Ors. V. Director General of Civil 

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