LexTHE STATE OF GUJARAT versus ANWAR OSMAN SUMBHANIYA AND ORS.
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A B C D E F G H 749 THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA AND ORS. (Criminal Appeal Nos. 1359-1361 of 2007) FEBRUARY 27, 2019 [A. M. KHANWILKAR AND AJAY RASTOGI, JJ.] Terrorist and Disruptive Activities (Prevention) Act, 1987: s.20- A(2) – Prior sanction under s.20A(2) – Validity of – By impugned order, Designated Court held that there was no prior sanction under s.20-A(2) before taking cognizance of the offence committed by the respondents – Held: Perusal of the subject sanction order showed that it adverted only to the FIR and proposal received from DSP – The noting in the sanction order was indicative of the fact that it was not a sanction to prosecute the accused but at best giving permission to apply the provisions of TADA – Such a sanction cannot be considered as a valid sanction – Penal Code, 1860 – ss.121, 121A, 122 and s.34 – Arms Act, 1959 – ss.25, 27(1) and 29A – Telegraph Act, 1885 – s.20 – Indian Wireless Telegraphy Act, 1933 – s.6(1-A). Terrorist and Disruptive Activities (Prevention) Act, 1987: s.3 – Mere possession of walky-talkies per se would not be an offence under TADA – In the instant case, sanction order in respect of respondent no.3 showed that there was nothing to indicate as to whether the sanctioning authority was conscious of the materials gathered during investigation qua respondent No.3 which merely suggested possession and recovery of two walky-talkies from him – The sanctioning authority was under a bounden duty to accord sanction, specific to offences, from amongst the different offences under sub-sections (1) to (6) of s.3 of TADA – s.4 refers to disruptive activities whereas s.5 refers to possession of unauthorized classified arms and ammunition – A walky-talky is certainly not one of those classified arms and ammunition – The purported sanction suffered from the vice of non-application of mind, on this count alone. Terrorist and Disruptive Activities (Prevention) Act, 1987: Power of Designated Court to try any other offence (other than TADA) – Whether the Designated Court could convict the accused persons for offences punishable under other enactments (other than [2019] 2 S.C.R. 749 749 A B C D E F G H 750 SUPREME COURT REPORTS [2019] 2 S.C.R. TADA) – Held: Designated Court, besides trying the case under TADA, can also try any other offence with which the accused may be charged at the same trial if the offences are connected with offences under TADA – For, implicit power has been bestowed upon the Designated Court to convict the accused for offences under other enactments if there is legally admissible evidence to establish those charges – However, in the instant case, prosecution essentially relied upon the confessional statement of the accused recorded under the provisions of TADA – That will be of no avail and certainly not admissible against the accused in the trial for offences under other enactments, especially when the Designated Court could not have taken cognizance of the offence under TADA for lack of a valid sanction – There was no legally admissible evidence to establish the charges against the respondents regarding offences under other enactments (other than TADA) – The conclusion reached by the Designated Court, that the respondents were not guilty of the offences for which they were charged and tried, is not interfered with. Dismissing the appeals, the Court HELD: 1. The sanction order (Exh.84) issued under Section 20-A(2) of TADA by DGP (PW-14) shows that the author of the document DGP (PW-14), adverted only to the FIR and the proposal received from DSP, Jamnagar (PW-15). The understanding of PW-14 was that the proposal received from DSP, Jamnagar (PW-15) was for granting approval to apply provisions of TADA and the said proposal was accepted. The respondents rightly relied on the dictum in Gadhvi’s case, where a similar purported sanction under Section 20-A(2) of TADA issued by the very same officer DGP (PW-14), in respect of some other TADA case, came up for consideration. The wording of sanction order considered therein was similar to the one under consideration. [Para 13][764-F-H] Rambhai Nathabhai Gadhvi & Ors. v. State of Gujarat (1997) 7 SCC 744 : [1997] 3 Suppl. SCR 356 – relied on A B C D E F G H 751 1.2 The subject sanction (Exh.84) was issued by the very same officer and presumably prepared on the same date 3.11.93, but signed and issued on 9.11.1993. Even in the instant case, reference was only to two documents re
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