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.=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:

[pic]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’).

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.

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.

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.

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.

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.

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.”

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).

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)

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:

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.

Admittedly, the Appellant had been suffering incarceration for more than  12

years.

Only 25 out of 192 witnesses have been examined so far.

There is no likelihood of the completion of trial in the near future.

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.

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).

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:

The Appellant will furnish a bail bond in the sum of   Rs.1 lakh  (One  Lakh

only) with one surety for a similar amount.

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.

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.

The Passport of the Appellant shall be  surrendered  before  the  Designated

Court.

The Appellant shall not indulge in tampering of evidence and influencing  of

witnesses.

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.

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

———————–

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