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

‘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

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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 3½ years while the minimum

sentence provided in the TADA is 5 years and the

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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.   

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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

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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.    

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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

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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

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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

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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

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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.   

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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                

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