Bail in serious offence TADA: Supreme Court 2017

Non-Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1650 of 2011
UMARMIA ALIAS MAMUMIA
…. Appellant(s)
Versus
STATE OF GUJARAT
….Respondent
J U D G M E N T
L. NAGESWARA RAO, J.
This Appeal is filed against the Judgment dated
16.06.2010 in Criminal Misc Sr. No.44 of 2010 by which the
Court of Designated Judge (TADA) at Porbandar (hereinafter
referred to as the ‘Designated Court’) rejected the bail
application filed by the Appellant under Section 439 Cr.P.C.
and Section 20 (8) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as the ‘Act’).
2. Crime No. I-43 of 1994 was registered under Section 154
Cr.P.C. for offences committed under Section 121, 121A,
122, 123, 124B r/w 34 of the Indian Penal Code, Section
25 (1A), (1B) and 25(1AA) of the Arms Act, Sections 9-B of
the Explosives Act, Sections 3, 4, 5 and 6 of the Explosive
Substances Act and Sections 3, 4 and 5 of the Act. The
statement of one Suresh recorded under Section 108 of the
Customs Act revealed that explosive substances, powder
RDX boxes, bags containing fire arms, 45 bags of
weapons, 15 boxes of RDX and 225 pieces of silver ingots
were smuggled into the country and taken to Zaroli and
Dhanoli villages of Valsad District. The first charge-sheet
was filed on 12.01.1995 in which the name of the
Appellant is found at serial No.1 in column No.2 which
refers to persons who were absconding. The 11th
supplementary Charge-sheet was filed on 06.06.2005
wherein it was mentioned the Appellant was arrested at
1700 hrs on 10.12.2004.
3. The involvement of the Appellant in the crime was set out
in detail in the charge-sheet dated 06.06.2005. The
Appellant conspired with Iqbal A Hussain and others sent
by Mustapha Majnu Sheikh from Mumbai at his residence
at Memonwada, Porbandar and finalized the plan to
unload the ammunition. It was mentioned, inter alia, that
the Appellant was present at the time of delivery of RDX,
weapons etc. and he supervised the transport of some
weapons to his house. The rest of the material was loaded
in three tempos and was sent to Ghanoli village. Thereafter
the Appellant fled away to Dubai.
4. On 17.12.2010 the Appellant filed Criminal Misc.
Application No.44 of 2010 in TADA case No. 3 of 2005 in
the Designated Court seeking bail under Section 439
Cr.P.C. read with Section 20 (8) of Act. The Designated
Court by its judgment dated 16.06.2010 dismissed the bail
application and held that on perusal of the material on
record, a prima facie case of Appellant’s involvement in
serious offences under TADA was made out. The
Designated Court refused to release the Appellant on bail
after examining his confessional statement recorded under
Section 15(2) TADA. The Court also took note of the fact
that the Appellant absconded for 10 years from
08.03.1994 to 10.12.2004. Likelihood of tampering of
evidence and witnesses being influenced were also
grounds which were taken into consideration by the
Designated Court to deny bail. The Appellant filed this
appeal challenging the validity of the said judgment dated
16.06.2010 of the Designated Court.
5. Mr. Sushil Kumar, learned Senior Counsel appearing for
the Appellant submitted that the entire proceedings are
vitiated due to no prior approval being taken from the
District Superintendent of Police under Section 20A (1) of
the TADA Act before registration of First Information
Report. He further submitted that 192 witnesses have
been cited out of whom only 25 witnesses have been
examined so far and there is no likelihood of the
completion of the trial in the near future. He also stated
that many of the other accused have either been released
on bail or had the benefit of the proceedings against them
being quashed. He pleaded for grant of bail in view of his
long incarceration for more than 12 years. To buttress his
submission the counsel relied upon the judgments of this
Court in Izharul Haq Abdul Hamid Shaikh v. State of
Gujarat (2009) 5 SCC 283, Ashrafkhan v. State of
Gujarat (2012) 11 SCC 606 and Hussein Ghadially v.
State of Gujarat (2014) 8 SCC 425.
6. Mr. Yashank Adhyaru, learned Senior Counsel appearing
for the Respondent-State of Gujarat made an attempt to
convince us that sanction was, in fact, granted under
Section 20A (1). According to him, there was an error in
the order dated 08.04.1994 which mentioned that
approval was granted under Section 20A (2). He
submitted that a plain reading of the said order would
disclose that the approval was actually granted under
Section 20A (1). He urged that the Appellant is the master
mind of the conspiracy which resulted in smuggling of
large scale arms and ammunition into the country. He
submitted that there is every likelihood of the Appellant
fleeing justice, if released on bail.
7. Section 20-A of the 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.”
8. In Izharul Haq Abdul Hamid Shaikh’s case (Supra) this
Court granted bail to the Appellant therein. In the said
case also the FIR was registered on 08.03.1994 relating to
the smuggling of arms and ammunition at Porbandar.
This Court held that prior approval under Section 20A (1)
of the Act was a sine qua non for recording of First
Information Report. The Appellant therein was granted
relief on the ground that prior approval was not obtained
before recording the FIR. The submission of Mr. Sushil
Kumar, who appeared for the Appellant in that case, that
prior approval under Section 20A (1) was not accorded by
the competent authority was accepted by Mr. Adhyaru
who appeared for the State of Gujarat in that case.
Mr.Adhyaru’s submission in Izharul Haq Abdul Hamid
Shaikh’s case that though the order of approval wrongly
mentioned Section 20A(2) it was actually an order under
Section 20A(1), was not accepted. Mr. Adhyaru raised the
same point again before us relying on order dated
08.03.1994. We permitted the Senior Counsel to read out
the order dated 08.03.1994 but we are not convinced that
it was passed under Section 20A(1) and not under Section
20A(2).
9. It is no more res integra that infraction of Section 20A
(1) of the TADA Act would vitiate the entire proceedings
and result in acquittal of the accused for offences under
the Act. (See: Anirudhsinhji Karansinhji Jadeja v.
State of Gujarat, (1995) 5 SCC 302; Prakash Kumar v.
State of Gujarat, (2005) 2 SCC 409; Izharul Haq Abdul
Hamid Shaikh v. State of Gujarat, (2009) 5 SCC 283;
Ashrafkhan v. State of Gujarat, (2012) 11 SCC 606;
Hussein Ghadially v. State of Gujarat, (2014) 8 SCC
425)
10. After considering the submissions of both sides, we are
of the opinion that the Appellant is entitled to be released
on bail for the following reasons:
A. The prior approval required under Section 20A (1) of the
TADA Act was not taken from the District
Superintendent of Police before the FIR was recorded.
B. Admittedly, the Appellant had been suffering
incarceration for more than 12 years.
C. Only 25 out of 192 witnesses have been examined so
far.
D. There is no likelihood of the completion of trial in the
near future.
E. Though there is a confessional statement of the
Appellant recorded under Section 15 of the TADA, the
same cannot be looked into by us in view of the
violation of Section 20A (1) of the TADA Act.
11. This Court has consistently recognised the right of the
accused for a speedy trial. Delay in criminal trial has been
held to be in violation of the right guaranteed to an
accused under Article 21 of the Constitution of India. (See:
Supreme Court Legal Aid Committee v. Union of India,
(1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of
India, (1996) 2 SCC 616) Accused, even in cases under
TADA, have been released on bail on the ground that they
have been in jail for a long period of time and there was no
likelihood of the completion of the trial at the earliest.
(See: Paramjit Singh v. State (NCT of Delhi), (1999) 9
SCC 252 and Babba v. State of Maharashtra, (2005)
11 SCC 569).
12. Though the Appellant is involved in serious offences and
has absconded for a period of 10 years before he was
arrested in 2004, we see no reason to confine him to jail as
he has already suffered more than 12 years in custody and
the trial may not be completed in the near future. Taking
note of the above, we grant relief of bail to the Appellant
subject to the following conditions:
a. The Appellant will furnish a bail bond in the sum of
Rs.1 lakh (One Lakh only) with one surety for a similar
amount.
b. The Appellant will reside at Porbandar and report daily
to the City ‘B’ Division Police Station, Porbandar at 6:00
PM. He shall not leave the territory of Porbandar.
c. If the Appellant is required to attend any Court outside
Porbandar the same may be done through video
conferencing to be organized by the State. If video
conferencing cannot be arranged the Appellant will be
produced before any court, if necessary, through Escort
by the Police.
d. The Passport of the Appellant shall be surrendered
before the Designated Court.
e. The Appellant shall not indulge in tampering of evidence
and influencing of witnesses.
f. The State is at liberty to move for cancellation of bail, if
the Appellant is found to be tampering with the
evidence or causing hindrance to the progress of the
trial.
13. As the case pertains to the year 1993, the Designated
Court is requested to expedite and complete the trial at the
earliest. With the above directions, the Appeal is allowed.
…………………………………..J
[S. A. BOBDE]
…………………………………..J
[L. NAGESWARA RAO]
New Delhi,
February 01, 2017