{"id":243417,"date":"2009-03-06T00:00:00","date_gmt":"2009-03-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/izharul-haq-abdul-hamid-shaikh-vs-state-of-gujarat-on-6-march-2009"},"modified":"2016-07-28T12:17:58","modified_gmt":"2016-07-28T06:47:58","slug":"izharul-haq-abdul-hamid-shaikh-vs-state-of-gujarat-on-6-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/izharul-haq-abdul-hamid-shaikh-vs-state-of-gujarat-on-6-march-2009","title":{"rendered":"Izharul Haq Abdul Hamid Shaikh & … vs State Of Gujarat on 6 March, 2009"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Izharul Haq Abdul Hamid Shaikh & … vs State Of Gujarat on 6 March, 2009<\/div>\n
Author: A Kabir<\/div>\n
Bench: Altamas Kabir, Mukundakam Sharma<\/div>\n
                          IN THE SUPREME COURT OF INDIA\n\n           CRIMINAL APPELLATE JURISDICTION\n\n               CRIMINAL APPEAL NO.811 OF 2008\n\nIzharul Haq Abdul Hamid Shaikh & Anr. ... Appellants\n\n\n      Versus\n\n\nState of Gujarat                           ... Respondent\n\n                               WITH\n\n            Criminal Appeal No.813 of 2008\n                         and\n          Criminal Appeal No.        of 2009\n         @ Criminal Appeal D.No.23837 of 2008\n\n\n                      J U D G M E N T\n<\/pre>\n
ALTAMAS KABIR,J.\n<\/p>\n<\/p>\n
1.    Delay condoned in Criminal Appeal D.No.23837 of<\/p>\n
2008.\n<\/p>\n<\/p>\n
      These three criminal appeals have been taken up<\/p>\n
together as the same questions of law relating to<\/p>\n
the     Terrorists       and      Disruptive    Activities<\/p>\n
(Prevention) Act, 1987 (hereinafter referred to as
\n                                                              2<\/span><\/p>\n
`TADA’) regarding grant of bail are involved. All<\/p>\n
these three appeals have been filed under Section<\/p>\n
19 of TADA relating to separate incidents which are<\/p>\n
alleged to have occurred in Porbandar and Valsad in<\/p>\n
the State of Gujarat.\n<\/p>\n<\/p>\n
2.   Criminal Appeal No.811 of 2008 has been filed<\/p>\n
by Izharul Haq Abdul Hamid Shaikh and Amir Gulam<\/p>\n
Husein Bandukwala against the order passed by the<\/p>\n
Designated Court, Porbandar, on 15th February, 2008<\/p>\n
in Criminal Misc. Application No.164 of 2007 in<\/p>\n
Special    TADA   Case    No.6   of    2005    in   respect    of<\/p>\n
offences    alleged      to   have    been    committed     under<\/p>\n
Sections 121, 121A, 122, 123. 120B, 34 IPC, Section<\/p>\n
25(1) AB, AA of the Arms Act, Section 9-B of the<\/p>\n
Explosive Substances Act read with Sections 3, 4, 5<\/p>\n
and 6 of TADA.\n<\/p>\n<\/p>\n
3.   The   appellant     No.1,   Izharul      Haq   Abdul   Hamid<\/p>\n
Shaikh has also filed Criminal Appeal D.No.23837 of<\/p>\n
2008 against order dated 9th April, 2008, passed by<\/p>\n
the Designated TADA Court at Valsad in Criminal
\n                                                                    3<\/span><\/p>\n
Misc. Application No.68 of 2008 in Special TADA<\/p>\n
Case No.1 of 2005 in respect of charges similar to<\/p>\n
those made against him in the Porbandar case.<\/p>\n
4.   Criminal Appeal No.813 of 2008 has been filed<\/p>\n
by one Jivan Raghu Varli against an order dated 13th<\/p>\n
September,     2007,        in   Criminal    Misc.        Application<\/p>\n
No.88   of    2007    on    charges   similar      to     those    made<\/p>\n
against Izharul Haq Abdul Hamid Shaikh.<\/p>\n
5.   In all the three appeals, the prayer for bail<\/p>\n
made on behalf of the appellants under Section 439<\/p>\n
Cr.P.C.      and     Section     20(8)      of    TADA     has     been<\/p>\n
rejected.\n<\/p>\n<\/p>\n
6.   Mr.     Sushil    Kumar,      learned       Senior     Advocate,<\/p>\n
appearing for the appellants in Crl. Appeal No.811<\/p>\n
of   2008    and     Crl.    Appeal   D.     No.23837       of    2008,<\/p>\n
submitted that Izharul Haq Abdul Hamid Shaikh has<\/p>\n
been in custody since his arrest on 29th                         April,<\/p>\n
2005, i.e. for more than 3= years while the minimum<\/p>\n
sentence provided in the TADA is 5 years and the
\n                                                                             4<\/span><\/p>\n
maximum    is       life    sentence.         He    urged    that      if   the<\/p>\n
appellant       was        ultimately          convicted         and      given<\/p>\n
minimum       sentence,       he     would      have       completed        such<\/p>\n
sentence      in     custody       by    the       time    the   trial       was<\/p>\n
concluded.          Mr. Sushil Kumar submitted that of the<\/p>\n
other co-accused in the Valsad case, twenty accused<\/p>\n
had    been    acquitted       and       it     was    observed        in    the<\/p>\n
judgment of the learned Designated Judge that the<\/p>\n
prosecution had not been able to prove its case<\/p>\n
beyond all reasonable doubt.                    Mr. Sushil Kumar also<\/p>\n
submitted that the appeal against acquittal of the<\/p>\n
said twenty co-accused was dismissed by this Court<\/p>\n
and another batch of three trials in the same case<\/p>\n
also ended in acquittal.                       He contended that the<\/p>\n
contents       of     the     charge-sheet            did    not       warrant<\/p>\n
framing        of     charges           by     the        Special      Judge,<\/p>\n
particularly when no recovery was effected and the<\/p>\n
only    evidence           against       the       appellants       was      the<\/p>\n
alleged confession which had not been relied upon<\/p>\n
in the earlier trial.\n<\/p>\n
                                                                           5<\/span><\/p>\n
7.    In the other case (Criminal Appeal No.811 of<\/p>\n
2008), the First Information Report was filed on 8th<\/p>\n
March,      1994,     by     the        police        authorities          and<\/p>\n
thereafter confessions of the appellant Nos.1 and 2<\/p>\n
were recorded on 27th June, 2005.                    On being produced<\/p>\n
before      the    Magistrate          on    29th    June,        2005,    the<\/p>\n
appellants retracted their confessional statements<\/p>\n
on    the    ground       that     such       confessions         had     been<\/p>\n
obtained on the basis of threats and coercion and,<\/p>\n
in fact, they did not even know as to what was<\/p>\n
written in the confessional statements.                            A second<\/p>\n
petition made by the appellants was heard by the<\/p>\n
Designated        Court     at     Valsad,         but     the    same     was<\/p>\n
ultimately dismissed.\n<\/p>\n<\/p>\n
8.    Mr. Sushil Kumar stated that since no recovery<\/p>\n
had   been    effected,          the    only        evidence       available<\/p>\n
against      the    appellants              were     the     confessional<\/p>\n
statements        alleged     to       have    been        made    by     them<\/p>\n
voluntarily, which have not been relied upon in the<\/p>\n
earlier trial.            Mr. Sushil Kumar submitted that<\/p>\n
most of the accused persons in these cases have
\n                                                                       6<\/span><\/p>\n
either been acquitted or released on bail and that<\/p>\n
in the absence of any concrete evidence linking the<\/p>\n
appellants         with        the       incident,       their        bail<\/p>\n
applications should have been allowed.<\/p>\n
9.     Mr. Ranjit Kumar, Senior Advocate, who appeared<\/p>\n
for    the    appellant        in     Criminal    Appeal      No.813   of<\/p>\n
2008,    preferred        by    Jivan     Raghu      Varli,    submitted<\/p>\n
that the appellant had been arrested on 28th June,<\/p>\n
2005, and that there were as many as 47 accused in<\/p>\n
the case which was based on facts similar to those<\/p>\n
involving Izharul Haq Abdul Hamid Shaikh, and they<\/p>\n
are    all    on   bail        except    the     appellant      who    was<\/p>\n
alleged       to   have        been     absconding      till     he    was<\/p>\n
arrested. Of the said 47 accused, the appellant,<\/p>\n
Jivan Raghu Varli, was one of the labourers who had<\/p>\n
unloaded the materials from a truck and had loaded<\/p>\n
them on to another and although the other labourers<\/p>\n
had been granted bail, the appellant’s prayer for<\/p>\n
bail    had    been   rejected           on    the    above-mentioned<\/p>\n
ground.\n<\/p>\n
                                                                      7<\/span><\/p>\n
10. In this regard, Mr. Ranjit Kumar referred to<\/p>\n
the    decision    of    this    Court      in      Shaheen    Welfare<\/p>\n
Association Vs. Union of India & Ors. [(1996) 2 SCC<\/p>\n
616],    wherein     keeping       in    mind       the    dilemma    of<\/p>\n
individual      liberty     as     against          protection       from<\/p>\n
terrorism    and    disruptive          activities,         this    Court<\/p>\n
categorized       people    indulging          in     terrorism       and<\/p>\n
disruptive      activities      into     two     categories.          The<\/p>\n
first category was the hardcore terrorists who were<\/p>\n
directed to be dealt with strictly, while in the<\/p>\n
other cases it was recommended that a liberal view<\/p>\n
be taken.       But it was also indicated that such an<\/p>\n
approach was not to be taken in extraordinarily<\/p>\n
grave cases, such as the Bombay Bomb Blast cases.<\/p>\n
11. Mr.     Ranjit       Kumar      then       referred        to     the<\/p>\n
Constitution Bench decision in the case of Kartar<\/p>\n
Singh Vs. State of Punjab [(1994) 3 SCC 569], in<\/p>\n
which the constitutional validity of the Terrorist<\/p>\n
Affected    Areas       (Special    Courts)         Act,     1984,   the<\/p>\n
Terrorist    and    Disruptive          Activities         (Prevention)<\/p>\n
Act,    1987,     and    the     Terrorists          and     Disruptive
\n                                                                        8<\/span><\/p>\n
Activities Procedure (UP Amendment) Act, 1976, had<\/p>\n
been challenged.        After examining the provisions of<\/p>\n
the aforesaid enactments in detail, on the question<\/p>\n
of bail, the majority view was that although such<\/p>\n
power was available to the High Court under Article<\/p>\n
226     of   the    Constitution,          the    same       should      be<\/p>\n
exercised      in     extreme       circumstances            given      the<\/p>\n
stringent provisions of the legislation.<\/p>\n
12. Mr. Ranjit Kumar also referred to the decision<\/p>\n
of this Court in Supreme Court Legal Aid Committee<\/p>\n
Representing        Undertrial      Prisoners          vs.    Union      of<\/p>\n
India    &   Ors.<\/a>    [(1994)    6    SCC    731],      in    which      the<\/p>\n
provisions of Articles 21, 14 and 19 with regard to<\/p>\n
speedy trial of under trial prisoners was under<\/p>\n
consideration and it was held that deprivation of<\/p>\n
personal     liberty     without       ensuring         speedy        trial<\/p>\n
violates     Article    21     of    the    Constitution.               The<\/p>\n
decision     which     was     rendered      in     regard       to     the<\/p>\n
provisions of the Narcotic Drugs and Psychotropic<\/p>\n
Substances     Act,    1985     took   note       of    the    fact      of<\/p>\n
detention of persons under the aforesaid Act for
\n                                                                 9<\/span><\/p>\n
long periods without trial and observed that the<\/p>\n
provisions      of    bail    under     the   Act   being    strict,<\/p>\n
refusing bail on the one hand and delaying trial of<\/p>\n
cases on the other is unfair and unreasonable.                   Mr.<\/p>\n
Ranjit Kumar submitted that charge had not yet been<\/p>\n
framed in the case and there were 216 witnesses to<\/p>\n
be examined.          The likelihood of the trial being<\/p>\n
concluded at an early date was highly improbable.<\/p>\n
13. It was also submitted that the appellant, along<\/p>\n
with   several       others,    were     labourers    employed    by<\/p>\n
Izharul Haq Abdul Hamid Shaikh and there is nothing<\/p>\n
on record to indicate that they had any knowledge<\/p>\n
of   the   contents     of     the    boxes   which    were    being<\/p>\n
transported from one vehicle to another.                    In fact,<\/p>\n
in   the   affidavit         affirmed    by   the    Investigating<\/p>\n
Officer    it    has     also     been     indicated    that     the<\/p>\n
appellant was a labourer working under Izharul Haq<\/p>\n
Abdul Hamid Shaikh at the relevant point of time.<\/p>\n
Furthermore, although, it has been suggested that<\/p>\n
the appellant had absconded for 11 years, the fact<\/p>\n
is that no steps had been taken to apprehend him
\n                                                                        10<\/span><\/p>\n
during the said period or to have him declared as<\/p>\n
an absconder.\n<\/p>\n<\/p>\n
14. It      was   also       submitted      that       other    labourers<\/p>\n
similarly situated, such as Suresh Ishwar Varli and<\/p>\n
Mangu Mahadu Varli, had already been granted bail<\/p>\n
in connection with this case. However, bail has<\/p>\n
been    refused        in    the    case    of       the    appellant    on<\/p>\n
erroneous considerations.\n<\/p>\n<\/p>\n
15. Yet another decision of this Court in the case<\/p>\n
of Ranjitsing Brahmajeetsing Sharma vs. State of<\/p>\n
Maharashtra & Anr. [(2005) 5 SCC 294] was referred<\/p>\n
to     by   Mr.    Ranjit          Kumar    with       regard      to   the<\/p>\n
interpretation of Article 21 in the light of the<\/p>\n
presumption        of       innocence,      before         being    proved<\/p>\n
guilty. It was observed that Article 21, in view of<\/p>\n
its expansive meaning, not only protects life and<\/p>\n
liberty,     but       also    envisages         a     fair    procedure.<\/p>\n
Liberty     of     a    person       should      not       ordinarily   be<\/p>\n
interfered with unless there exist cogent grounds<\/p>\n
therefor.         Although,         the    aforesaid        decision    was
\n                                                                      11<\/span><\/p>\n
rendered under the provisions of the Maharashtra<\/p>\n
Control of Organised Crime Act, 1999 (hereinafter<\/p>\n
referred to as `MCOCA’), the provisions of TADA<\/p>\n
being similar with regard to grant of bail, Mr.<\/p>\n
Ranjit Kumar submitted that the Court went on to<\/p>\n
observe that Section 21(4) of MCOCA did not lead to<\/p>\n
the   conclusion   that       the   Court    must    arrive      at        a<\/p>\n
positive finding that the applicant for bail had<\/p>\n
not committed an offence under the Act, as in such<\/p>\n
an event it would be impossible for the prosecution<\/p>\n
to obtain a judgment of acquittal and conviction,<\/p>\n
which   could   not    have    been    the    intention     of    the<\/p>\n
Legislature.          Section       21(4)    of     MCOCA     would,<\/p>\n
therefore, have to be considered reasonably by the<\/p>\n
Court   to   maintain    a     delicate      balance   between             a<\/p>\n
judgment of acquittal and conviction and an order<\/p>\n
granting bail much before commencement of trial.<\/p>\n
The duty of the Court at the said stage was not to<\/p>\n
weigh the evidence meticulously but to arrive at a<\/p>\n
finding on the basis of broad probabilities.
\n                                                         12<\/span><\/p>\n
16. Reference was them made to the decision of this<\/p>\n
Court in State of Maharashtra vs. Bharat Shanti Lal<\/p>\n
Shah & Ors.<\/a> [2008 (12) SCALE 167], where similar<\/p>\n
views   have   been   expressed.      Mr.    Ranjit   Kumar<\/p>\n
submitted that as far as the appellant, Jivan Raghu<\/p>\n
Varli, was concerned, he could not be treated on a<\/p>\n
different   footing   from   the   other    labourers,   who<\/p>\n
have been granted bail in this case.\n<\/p>\n<\/p>\n
17. The submissions made by Mr. Sushil Kumar and<\/p>\n
Mr. Ranjit Kumar on behalf of the appellants in<\/p>\n
these three criminal appeals were strongly opposed<\/p>\n
on behalf of the State of Gujarat by Mr. Yashank<\/p>\n
Adhyaru, learned Senior Advocate.             Referring to<\/p>\n
Section 12 of TADA, Mr. Adhyaru urged that when<\/p>\n
trying an offence under the Act, the Designated<\/p>\n
Court could also try any other offence with which<\/p>\n
the accused may, under the Indian Penal Code, be<\/p>\n
charged at the time of trial.         Mr. Adhyaru urged<\/p>\n
that sub-section (2) of Section 16 provides that if<\/p>\n
during the trial under the TADA Act it is found<\/p>\n
that the accused person had committed any other
\n                                                            13<\/span><\/p>\n
offence under the Act or any rule made thereunder<\/p>\n
or under any other law, the Designated Court could<\/p>\n
convict such person of such other offence and pass<\/p>\n
any sentence authorized by the Act or such rule or<\/p>\n
such    other      law   for    the    punishment     thereof.<\/p>\n
Reference was also made to Section 18 of TADA in<\/p>\n
this regard.\n<\/p>\n<\/p>\n
18.    Referring    to   the   certificate   issued    by   the<\/p>\n
Superintendent of Police, Porbandar, on 27th June,<\/p>\n
2005, which records a confession said to have been<\/p>\n
made by Izharul Haq Abdul Hamid Shaikh, Mr. Adhyaru<\/p>\n
submitted that the said certificate satisfies the<\/p>\n
rigours of Sections 15 and 18 of TADA and the same<\/p>\n
was sufficient to deny bail, even if there was no<\/p>\n
other material available.             Mr. Adhyaru relied on<\/p>\n
the decision in Kartar Singh’s case (supra) which<\/p>\n
was referred to by Mr. Ranjit Kumar, wherein the<\/p>\n
validity of TADA had been upheld and this Court had<\/p>\n
held that while considering grant of bail, the High<\/p>\n
Court under Article 226 of the Constitution was
\n                                                                  14<\/span><\/p>\n
required to exercise extreme caution in view of the<\/p>\n
stringent provisions of the Act.\n<\/p>\n<\/p>\n
19. Mr. Adhyaru submitted that as far as Criminal<\/p>\n
Appeal No.811 of 2008 is concerned, it should be<\/p>\n
kept    in      mind     that    facts,     other      than       the<\/p>\n
confessional        statements,      had   been     taken        into<\/p>\n
consideration by the Special Court while denying<\/p>\n
bail to Izharul Haq Abdul Hamid Shaikh.<\/p>\n
20. With regard to Criminal Appeal D. No.23837\/08,<\/p>\n
Mr. Adhyaru submitted that the trial had already<\/p>\n
commenced in this case and out of 86 witnesses,<\/p>\n
already 76 witnesses have been examined and that<\/p>\n
only    the     official     witnesses     were     left    to     be<\/p>\n
examined.       Further more, in this case there is a<\/p>\n
separate confessional statement.\n<\/p>\n<\/p>\n
21. In his response to Mr. Adhyaru’s submissions,<\/p>\n
Mr.    Sushil    Kumar     pointed   out   that   in   terms       of<\/p>\n
Section      20-A   of   TADA,    notwithstanding          anything<\/p>\n
contained in the Code of Criminal Procedure, no
\n                                                               15<\/span><\/p>\n
information     about   the     commission    of    an   offence<\/p>\n
under the Act can be recorded by the police without<\/p>\n
the prior approval of the District Superintendent<\/p>\n
of Police.      Moreover, Sub-Section (2) of Section<\/p>\n
20-A provides that no Court shall take cognizance<\/p>\n
of any offence under the Act without the previous<\/p>\n
sanction of the Inspector General of Police or, as<\/p>\n
the case may be, of the Commissioner of Police.<\/p>\n
Mr. Sushil Kumar submitted that the Investigating<\/p>\n
authorities had filed the First Information Report<\/p>\n
without having obtained the prior approval of the<\/p>\n
District      Superintendent      of     Police,     which     was<\/p>\n
contrary to Sub-Section (1) of Section 20-A, thus<\/p>\n
vitiating the entire proceedings.            Mr. Sushil Kumar<\/p>\n
referred to the further cross-examination of P.W.10<\/p>\n
Harjeshwar, who was then serving as the District<\/p>\n
Superintendent of Police, Porbandar, wherein he had<\/p>\n
admitted the fact that approval had been accorded<\/p>\n
after the complaint had been registered.                 He also<\/p>\n
referred to the First Information Report dated 8th<\/p>\n
May, 1994, in which, along with the other offences<\/p>\n
under   the    Indian   Penal    Code,    Arms     Act   and   the
\n                                                                          16<\/span><\/p>\n
Explosive Substances Act, offences under Sections<\/p>\n
3, 4 and 5 of the Tada Act were also included.                            Mr.<\/p>\n
Sushil     Kumar       submitted       that    it    would        also    be<\/p>\n
evident from the affidavit filed on behalf of the<\/p>\n
State of Gujarat that approval had been given for<\/p>\n
invoking       the     provisions      of     the    TADA    Act     under<\/p>\n
Section    20-A(1)         on   8th   April,      1994,     whereas      the<\/p>\n
First Information Report was lodged on 8th March,<\/p>\n
1994.     The same question was the subject matter in<\/p>\n
Mukhtiar Ahmed Ansari vs. State (NCT of Delhi),<\/p>\n
[(2005) 5 SCC 258], wherein it was held that since<\/p>\n
prior approval, as required under Section 20-A(1)<\/p>\n
had not been accorded by the Competent Authority<\/p>\n
under    TADA,       all    proceedings        taken      without        such<\/p>\n
sanction         were       vitiated.          Consequently,              the<\/p>\n
conviction of the accused under TADA was set aside.<\/p>\n
22. Mr. Adhyaru, on instructions, submitted that<\/p>\n
the statement made by Mr. Sushil Kumar was correct,<\/p>\n
but     that    though      sanction        had     purportedly          been<\/p>\n
granted        under    Section       20-A(2),       it     was     really<\/p>\n
intended to be a sanction under Section 20-A(1) of
\n                                                                       17<\/span><\/p>\n
TADA.        He also urged that Discharge Applications<\/p>\n
were also pending before the learned Special Judge<\/p>\n
at Porbandar and that the trial is being stayed on<\/p>\n
that account, and not on account of any delay on<\/p>\n
the part of the prosecution.\n<\/p>\n<\/p>\n
23. As        indicated       hereinbefore,          we    are     only<\/p>\n
concerned with the question regarding grant of bail<\/p>\n
to the appellants.            We do not, therefore, intend to<\/p>\n
go    into    the   merits      of    the    matters,      which     are<\/p>\n
pending       disposal        before        the     Special      Court.<\/p>\n
However, from the submissions made on behalf of the<\/p>\n
parties,       certain     facts      also        emerge   which     are<\/p>\n
required      to    be    taken      into    consideration         while<\/p>\n
considering the question of grant of bail.<\/p>\n
24. Taking up Criminal Appeal No.813\/08 preferred<\/p>\n
by Jivan Raghu Varli, first, it has transpired from<\/p>\n
the    submissions       of    the    parties       that   he    was        a<\/p>\n
labourer, who was allegedly under the employment of<\/p>\n
Izharul Haq Abdul Hamid Shaikh, the appellant in<\/p>\n
the other two appeals.            It has also transpired that
\n                                                                            18<\/span><\/p>\n
he    was   one      of    a   number     of     labourers         who     were<\/p>\n
allegedly      involved         in   the        transfer      of     certain<\/p>\n
containers from one vehicle to another.                        The other<\/p>\n
labourers who were involved in such operation are<\/p>\n
said   to     have    been     granted         bail   as   they      had     no<\/p>\n
knowledge of the contents of the said boxes and<\/p>\n
were merely shifting the same on instructions.                               As<\/p>\n
far    as     the    appellant       –        Jivan   Raghu        Varli     is<\/p>\n
concerned, he allegedly being in the employment of<\/p>\n
Izharul Haq Abdul Hamid Shaikh, a presumption was<\/p>\n
drawn while denying him bail that he presumably had<\/p>\n
knowledge       of        contents       of     the   boxes.         Without<\/p>\n
commenting on that aspect of the matter, which is<\/p>\n
the subject matter of the trial, we are of the view<\/p>\n
that since the other labourers have been granted<\/p>\n
bail    and    there       being     no       available    material          to<\/p>\n
presume that Jivan Raghu Varli had knowledge of the<\/p>\n
contents of the boxes, he may be granted bail on a<\/p>\n
parity with the other labourers.\n<\/p>\n<\/p>\n
25. As to the prayer for grant of bail made by<\/p>\n
Izharul Haq Abdul Hamid Shaikh, the records show
\n                                                               19<\/span><\/p>\n
that while the First Information Report against him<\/p>\n
under the Porbandar case had been lodged on 8th<\/p>\n
March, 1994, approval therefor had been given a<\/p>\n
month later, on 8th April, 1994.           What will be the<\/p>\n
effect    of    the   same    will   ultimately    have   to    be<\/p>\n
decided in the trial and we are not embarking on<\/p>\n
such exercise at the present moment.               However, for<\/p>\n
the purpose of grant of bail, having regard to the<\/p>\n
decision in Mukhtiar Ahmad Ansari’s case (supra) in<\/p>\n
which the question of grant of prior approval, as<\/p>\n
required under Section 20-A(1), had been considered<\/p>\n
and was held to be a pre-condition for recording<\/p>\n
the First Information Report, we are inclined to<\/p>\n
grant bail to the appellant Izharul Haq Abdul Hamid<\/p>\n
Shaikh, since undoubtedly, approval had not been<\/p>\n
obtained under Section 20-A(1) of TADA before the<\/p>\n
First Information Report was recorded.<\/p>\n
26. We, accordingly, grant bail to appellant Jivan<\/p>\n
Raghu Varli in connection with TADA Case I\/G. 6\/96<\/p>\n
n\/s-121, 121(c), 122, 123, 120(B) of the Indian<\/p>\n
Penal    Code   and   under    Sections   4,   5   and    of   the
\n                                                                      20<\/span><\/p>\n
Explosive Substances Act and Sections 3, 4 and 5 of<\/p>\n
TADA Act pending before the Designated (TADA) Judge<\/p>\n
at    Porbandar,        to    the   satisfaction      of    the    Trial<\/p>\n
Court upon such conditions as may be considered<\/p>\n
necessary to ensure his presence during the trial<\/p>\n
and     also       as        and    when     required,          including<\/p>\n
restrictions on his movements and reporting to the<\/p>\n
local Police Station in a manner, as may be deemed<\/p>\n
fit and proper.\n<\/p>\n<\/p>\n
27. We also grant bail to appellant Izharul Haq<\/p>\n
Abdul Hamid Shaikh in Special TADA Case No.6 of<\/p>\n
2005 under Sections 121, 121A, 122, 123, 120B, 34<\/p>\n
of the Indian Penal Code and Sections 25(1) AB, AA<\/p>\n
of    the   Arms     Act,      Section     9-B   of   the       Explosive<\/p>\n
Substances Act, read with Sections 3, 4, 5 and 6 of<\/p>\n
TADA     Act      pending      before      the   Designated       (TADA)<\/p>\n
Court, Porbandar and also in connection with Case<\/p>\n
No.1 of 2005 in respect of similar charges pending<\/p>\n
before      the     Designated       (TADA)      Court     at    Valsad,<\/p>\n
subject to the satisfaction of the Trial Court.<\/p>\n
Regarding the conditions for grant of bail, there
\n                                                   21<\/span><\/p>\n
will   be      similar   directions,   as    indicated<\/p>\n
hereinabove in Jivan Raghu Varli’s case, with more<\/p>\n
stringent conditions, if thought necessary by the<\/p>\n
Trial Court.\n<\/p>\n<\/p>\n
28. We make it clear that any observation made by<\/p>\n
us while disposing of these appeals at the stage of<\/p>\n
grant of bail should not influence the Trial Courts<\/p>\n
in the trials pending before them.     The appeals are<\/p>\n
disposed of accordingly.\n<\/p>\n<\/p>\n
                                  ……………..J.\n<\/p>\n
                                      (ALTAMAS KABIR)<\/p>\n
                                  ……………..J.\n<\/p>\n
                                  (MUKUNDAKAM SHARMA)
\nNew Delhi,<\/p>\n
Dated: 06.03.2009<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Izharul Haq Abdul Hamid Shaikh & … vs State Of Gujarat on 6 March, 2009 Author: A Kabir Bench: Altamas Kabir, Mukundakam Sharma 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 … […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-243417","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIzharul Haq Abdul Hamid Shaikh & ... vs State Of Gujarat on 6 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/izharul-haq-abdul-hamid-shaikh-vs-state-of-gujarat-on-6-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Izharul Haq Abdul Hamid Shaikh & ... vs State Of Gujarat on 6 March, 2009 - 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