IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.811 OF 2008
Izharul Haq Abdul Hamid Shaikh & Anr. ... Appellants
Versus
State of Gujarat ... Respondent
WITH
Criminal Appeal No.813 of 2008
and
Criminal Appeal No. of 2009
@ Criminal Appeal D.No.23837 of 2008
J U D G M E N T
ALTAMAS KABIR,J.
1. Delay condoned in Criminal Appeal D.No.23837 of
2008.
These three criminal appeals have been taken up
together as the same questions of law relating to
the Terrorists and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as
2
`TADA’) regarding grant of bail are involved. All
these three appeals have been filed under Section
19 of TADA relating to separate incidents which are
alleged to have occurred in Porbandar and Valsad in
the State of Gujarat.
2. Criminal Appeal No.811 of 2008 has been filed
by Izharul Haq Abdul Hamid Shaikh and Amir Gulam
Husein Bandukwala against the order passed by the
Designated Court, Porbandar, on 15th February, 2008
in Criminal Misc. Application No.164 of 2007 in
Special TADA Case No.6 of 2005 in respect of
offences alleged to have been committed under
Sections 121, 121A, 122, 123. 120B, 34 IPC, Section
25(1) AB, AA of the Arms Act, Section 9-B of the
Explosive Substances Act read with Sections 3, 4, 5
and 6 of TADA.
3. The appellant No.1, Izharul Haq Abdul Hamid
Shaikh has also filed Criminal Appeal D.No.23837 of
2008 against order dated 9th April, 2008, passed by
the Designated TADA Court at Valsad in Criminal
3
Misc. Application No.68 of 2008 in Special TADA
Case No.1 of 2005 in respect of charges similar to
those made against him in the Porbandar case.
4. Criminal Appeal No.813 of 2008 has been filed
by one Jivan Raghu Varli against an order dated 13th
September, 2007, in Criminal Misc. Application
No.88 of 2007 on charges similar to those made
against Izharul Haq Abdul Hamid Shaikh.
5. In all the three appeals, the prayer for bail
made on behalf of the appellants under Section 439
Cr.P.C. and Section 20(8) of TADA has been
rejected.
6. Mr. Sushil Kumar, learned Senior Advocate,
appearing for the appellants in Crl. Appeal No.811
of 2008 and Crl. Appeal D. No.23837 of 2008,
submitted that Izharul Haq Abdul Hamid Shaikh has
been in custody since his arrest on 29th April,
2005, i.e. for more than 3= years while the minimum
sentence provided in the TADA is 5 years and the
4
maximum is life sentence. He urged that if the
appellant was ultimately convicted and given
minimum sentence, he would have completed such
sentence in custody by the time the trial was
concluded. Mr. Sushil Kumar submitted that of the
other co-accused in the Valsad case, twenty accused
had been acquitted and it was observed in the
judgment of the learned Designated Judge that the
prosecution had not been able to prove its case
beyond all reasonable doubt. Mr. Sushil Kumar also
submitted that the appeal against acquittal of the
said twenty co-accused was dismissed by this Court
and another batch of three trials in the same case
also ended in acquittal. He contended that the
contents of the charge-sheet did not warrant
framing of charges by the Special Judge,
particularly when no recovery was effected and the
only evidence against the appellants was the
alleged confession which had not been relied upon
in the earlier trial.
5
7. In the other case (Criminal Appeal No.811 of
2008), the First Information Report was filed on 8th
March, 1994, by the police authorities and
thereafter confessions of the appellant Nos.1 and 2
were recorded on 27th June, 2005. On being produced
before the Magistrate on 29th June, 2005, the
appellants retracted their confessional statements
on the ground that such confessions had been
obtained on the basis of threats and coercion and,
in fact, they did not even know as to what was
written in the confessional statements. A second
petition made by the appellants was heard by the
Designated Court at Valsad, but the same was
ultimately dismissed.
8. Mr. Sushil Kumar stated that since no recovery
had been effected, the only evidence available
against the appellants were the confessional
statements alleged to have been made by them
voluntarily, which have not been relied upon in the
earlier trial. Mr. Sushil Kumar submitted that
most of the accused persons in these cases have
6
either been acquitted or released on bail and that
in the absence of any concrete evidence linking the
appellants with the incident, their bail
applications should have been allowed.
9. Mr. Ranjit Kumar, Senior Advocate, who appeared
for the appellant in Criminal Appeal No.813 of
2008, preferred by Jivan Raghu Varli, submitted
that the appellant had been arrested on 28th June,
2005, and that there were as many as 47 accused in
the case which was based on facts similar to those
involving Izharul Haq Abdul Hamid Shaikh, and they
are all on bail except the appellant who was
alleged to have been absconding till he was
arrested. Of the said 47 accused, the appellant,
Jivan Raghu Varli, was one of the labourers who had
unloaded the materials from a truck and had loaded
them on to another and although the other labourers
had been granted bail, the appellant’s prayer for
bail had been rejected on the above-mentioned
ground.
7
10. In this regard, Mr. Ranjit Kumar referred to
the decision of this Court in Shaheen Welfare
Association Vs. Union of India & Ors. [(1996) 2 SCC
616], wherein keeping in mind the dilemma of
individual liberty as against protection from
terrorism and disruptive activities, this Court
categorized people indulging in terrorism and
disruptive activities into two categories. The
first category was the hardcore terrorists who were
directed to be dealt with strictly, while in the
other cases it was recommended that a liberal view
be taken. But it was also indicated that such an
approach was not to be taken in extraordinarily
grave cases, such as the Bombay Bomb Blast cases.
11. Mr. Ranjit Kumar then referred to the
Constitution Bench decision in the case of Kartar
Singh Vs. State of Punjab [(1994) 3 SCC 569], in
which the constitutional validity of the Terrorist
Affected Areas (Special Courts) Act, 1984, the
Terrorist and Disruptive Activities (Prevention)
Act, 1987, and the Terrorists and Disruptive
8
Activities Procedure (UP Amendment) Act, 1976, had
been challenged. After examining the provisions of
the aforesaid enactments in detail, on the question
of bail, the majority view was that although such
power was available to the High Court under Article
226 of the Constitution, the same should be
exercised in extreme circumstances given the
stringent provisions of the legislation.
12. Mr. Ranjit Kumar also referred to the decision
of this Court in Supreme Court Legal Aid Committee
Representing Undertrial Prisoners vs. Union of
India & Ors. [(1994) 6 SCC 731], in which the
provisions of Articles 21, 14 and 19 with regard to
speedy trial of under trial prisoners was under
consideration and it was held that deprivation of
personal liberty without ensuring speedy trial
violates Article 21 of the Constitution. The
decision which was rendered in regard to the
provisions of the Narcotic Drugs and Psychotropic
Substances Act, 1985 took note of the fact of
detention of persons under the aforesaid Act for
9
long periods without trial and observed that the
provisions of bail under the Act being strict,
refusing bail on the one hand and delaying trial of
cases on the other is unfair and unreasonable. Mr.
Ranjit Kumar submitted that charge had not yet been
framed in the case and there were 216 witnesses to
be examined. The likelihood of the trial being
concluded at an early date was highly improbable.
13. It was also submitted that the appellant, along
with several others, were labourers employed by
Izharul Haq Abdul Hamid Shaikh and there is nothing
on record to indicate that they had any knowledge
of the contents of the boxes which were being
transported from one vehicle to another. In fact,
in the affidavit affirmed by the Investigating
Officer it has also been indicated that the
appellant was a labourer working under Izharul Haq
Abdul Hamid Shaikh at the relevant point of time.
Furthermore, although, it has been suggested that
the appellant had absconded for 11 years, the fact
is that no steps had been taken to apprehend him
10
during the said period or to have him declared as
an absconder.
14. It was also submitted that other labourers
similarly situated, such as Suresh Ishwar Varli and
Mangu Mahadu Varli, had already been granted bail
in connection with this case. However, bail has
been refused in the case of the appellant on
erroneous considerations.
15. Yet another decision of this Court in the case
of Ranjitsing Brahmajeetsing Sharma vs. State of
Maharashtra & Anr. [(2005) 5 SCC 294] was referred
to by Mr. Ranjit Kumar with regard to the
interpretation of Article 21 in the light of the
presumption of innocence, before being proved
guilty. It was observed that Article 21, in view of
its expansive meaning, not only protects life and
liberty, but also envisages a fair procedure.
Liberty of a person should not ordinarily be
interfered with unless there exist cogent grounds
therefor. Although, the aforesaid decision was
11
rendered under the provisions of the Maharashtra
Control of Organised Crime Act, 1999 (hereinafter
referred to as `MCOCA’), the provisions of TADA
being similar with regard to grant of bail, Mr.
Ranjit Kumar submitted that the Court went on to
observe that Section 21(4) of MCOCA did not lead to
the conclusion that the Court must arrive at a
positive finding that the applicant for bail had
not committed an offence under the Act, as in such
an event it would be impossible for the prosecution
to obtain a judgment of acquittal and conviction,
which could not have been the intention of the
Legislature. Section 21(4) of MCOCA would,
therefore, have to be considered reasonably by the
Court to maintain a delicate balance between a
judgment of acquittal and conviction and an order
granting bail much before commencement of trial.
The duty of the Court at the said stage was not to
weigh the evidence meticulously but to arrive at a
finding on the basis of broad probabilities.
12
16. Reference was them made to the decision of this
Court in State of Maharashtra vs. Bharat Shanti Lal
Shah & Ors. [2008 (12) SCALE 167], where similar
views have been expressed. Mr. Ranjit Kumar
submitted that as far as the appellant, Jivan Raghu
Varli, was concerned, he could not be treated on a
different footing from the other labourers, who
have been granted bail in this case.
17. The submissions made by Mr. Sushil Kumar and
Mr. Ranjit Kumar on behalf of the appellants in
these three criminal appeals were strongly opposed
on behalf of the State of Gujarat by Mr. Yashank
Adhyaru, learned Senior Advocate. Referring to
Section 12 of TADA, Mr. Adhyaru urged that when
trying an offence under the Act, the Designated
Court could also try any other offence with which
the accused may, under the Indian Penal Code, be
charged at the time of trial. Mr. Adhyaru urged
that sub-section (2) of Section 16 provides that if
during the trial under the TADA Act it is found
that the accused person had committed any other
13
offence under the Act or any rule made thereunder
or under any other law, the Designated Court could
convict such person of such other offence and pass
any sentence authorized by the Act or such rule or
such other law for the punishment thereof.
Reference was also made to Section 18 of TADA in
this regard.
18. Referring to the certificate issued by the
Superintendent of Police, Porbandar, on 27th June,
2005, which records a confession said to have been
made by Izharul Haq Abdul Hamid Shaikh, Mr. Adhyaru
submitted that the said certificate satisfies the
rigours of Sections 15 and 18 of TADA and the same
was sufficient to deny bail, even if there was no
other material available. Mr. Adhyaru relied on
the decision in Kartar Singh’s case (supra) which
was referred to by Mr. Ranjit Kumar, wherein the
validity of TADA had been upheld and this Court had
held that while considering grant of bail, the High
Court under Article 226 of the Constitution was
14
required to exercise extreme caution in view of the
stringent provisions of the Act.
19. Mr. Adhyaru submitted that as far as Criminal
Appeal No.811 of 2008 is concerned, it should be
kept in mind that facts, other than the
confessional statements, had been taken into
consideration by the Special Court while denying
bail to Izharul Haq Abdul Hamid Shaikh.
20. With regard to Criminal Appeal D. No.23837/08,
Mr. Adhyaru submitted that the trial had already
commenced in this case and out of 86 witnesses,
already 76 witnesses have been examined and that
only the official witnesses were left to be
examined. Further more, in this case there is a
separate confessional statement.
21. In his response to Mr. Adhyaru’s submissions,
Mr. Sushil Kumar pointed out that in terms of
Section 20-A of TADA, notwithstanding anything
contained in the Code of Criminal Procedure, no
15
information about the commission of an offence
under the Act can be recorded by the police without
the prior approval of the District Superintendent
of Police. Moreover, Sub-Section (2) of Section
20-A provides that no Court shall take cognizance
of any offence under the Act without the previous
sanction of the Inspector General of Police or, as
the case may be, of the Commissioner of Police.
Mr. Sushil Kumar submitted that the Investigating
authorities had filed the First Information Report
without having obtained the prior approval of the
District Superintendent of Police, which was
contrary to Sub-Section (1) of Section 20-A, thus
vitiating the entire proceedings. Mr. Sushil Kumar
referred to the further cross-examination of P.W.10
Harjeshwar, who was then serving as the District
Superintendent of Police, Porbandar, wherein he had
admitted the fact that approval had been accorded
after the complaint had been registered. He also
referred to the First Information Report dated 8th
May, 1994, in which, along with the other offences
under the Indian Penal Code, Arms Act and the
16
Explosive Substances Act, offences under Sections
3, 4 and 5 of the Tada Act were also included. Mr.
Sushil Kumar submitted that it would also be
evident from the affidavit filed on behalf of the
State of Gujarat that approval had been given for
invoking the provisions of the TADA Act under
Section 20-A(1) on 8th April, 1994, whereas the
First Information Report was lodged on 8th March,
1994. The same question was the subject matter in
Mukhtiar Ahmed Ansari vs. State (NCT of Delhi),
[(2005) 5 SCC 258], wherein it was held that since
prior approval, as required under Section 20-A(1)
had not been accorded by the Competent Authority
under TADA, all proceedings taken without such
sanction were vitiated. Consequently, the
conviction of the accused under TADA was set aside.
22. Mr. Adhyaru, on instructions, submitted that
the statement made by Mr. Sushil Kumar was correct,
but that though sanction had purportedly been
granted under Section 20-A(2), it was really
intended to be a sanction under Section 20-A(1) of
17
TADA. He also urged that Discharge Applications
were also pending before the learned Special Judge
at Porbandar and that the trial is being stayed on
that account, and not on account of any delay on
the part of the prosecution.
23. As indicated hereinbefore, we are only
concerned with the question regarding grant of bail
to the appellants. We do not, therefore, intend to
go into the merits of the matters, which are
pending disposal before the Special Court.
However, from the submissions made on behalf of the
parties, certain facts also emerge which are
required to be taken into consideration while
considering the question of grant of bail.
24. Taking up Criminal Appeal No.813/08 preferred
by Jivan Raghu Varli, first, it has transpired from
the submissions of the parties that he was a
labourer, who was allegedly under the employment of
Izharul Haq Abdul Hamid Shaikh, the appellant in
the other two appeals. It has also transpired that
18
he was one of a number of labourers who were
allegedly involved in the transfer of certain
containers from one vehicle to another. The other
labourers who were involved in such operation are
said to have been granted bail as they had no
knowledge of the contents of the said boxes and
were merely shifting the same on instructions. As
far as the appellant – Jivan Raghu Varli is
concerned, he allegedly being in the employment of
Izharul Haq Abdul Hamid Shaikh, a presumption was
drawn while denying him bail that he presumably had
knowledge of contents of the boxes. Without
commenting on that aspect of the matter, which is
the subject matter of the trial, we are of the view
that since the other labourers have been granted
bail and there being no available material to
presume that Jivan Raghu Varli had knowledge of the
contents of the boxes, he may be granted bail on a
parity with the other labourers.
25. As to the prayer for grant of bail made by
Izharul Haq Abdul Hamid Shaikh, the records show
19
that while the First Information Report against him
under the Porbandar case had been lodged on 8th
March, 1994, approval therefor had been given a
month later, on 8th April, 1994. What will be the
effect of the same will ultimately have to be
decided in the trial and we are not embarking on
such exercise at the present moment. However, for
the purpose of grant of bail, having regard to the
decision in Mukhtiar Ahmad Ansari’s case (supra) in
which the question of grant of prior approval, as
required under Section 20-A(1), had been considered
and was held to be a pre-condition for recording
the First Information Report, we are inclined to
grant bail to the appellant Izharul Haq Abdul Hamid
Shaikh, since undoubtedly, approval had not been
obtained under Section 20-A(1) of TADA before the
First Information Report was recorded.
26. We, accordingly, grant bail to appellant Jivan
Raghu Varli in connection with TADA Case I/G. 6/96
n/s-121, 121(c), 122, 123, 120(B) of the Indian
Penal Code and under Sections 4, 5 and of the
20
Explosive Substances Act and Sections 3, 4 and 5 of
TADA Act pending before the Designated (TADA) Judge
at Porbandar, to the satisfaction of the Trial
Court upon such conditions as may be considered
necessary to ensure his presence during the trial
and also as and when required, including
restrictions on his movements and reporting to the
local Police Station in a manner, as may be deemed
fit and proper.
27. We also grant bail to appellant Izharul Haq
Abdul Hamid Shaikh in Special TADA Case No.6 of
2005 under Sections 121, 121A, 122, 123, 120B, 34
of the Indian Penal Code and Sections 25(1) AB, AA
of the Arms Act, Section 9-B of the Explosive
Substances Act, read with Sections 3, 4, 5 and 6 of
TADA Act pending before the Designated (TADA)
Court, Porbandar and also in connection with Case
No.1 of 2005 in respect of similar charges pending
before the Designated (TADA) Court at Valsad,
subject to the satisfaction of the Trial Court.
Regarding the conditions for grant of bail, there
21
will be similar directions, as indicated
hereinabove in Jivan Raghu Varli’s case, with more
stringent conditions, if thought necessary by the
Trial Court.
28. We make it clear that any observation made by
us while disposing of these appeals at the stage of
grant of bail should not influence the Trial Courts
in the trials pending before them. The appeals are
disposed of accordingly.
……………..J.
(ALTAMAS KABIR)
……………..J.
(MUKUNDAKAM SHARMA)
New Delhi,
Dated: 06.03.2009