http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

PETITIONER: MOHD. YUNUS

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       15/10/1997

BENCH: G. N. RAY, G. B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      In this appeal, the order dated 21st April, 1997 passed by the  learned Addl.  Designated Judge, Ahmedabad rejecting the application  made by  the  appellant  for  dropping  the charge under  Sections 3  and 5 of Terrorists and Disruptive Activities  (Prevention)   Act,  1987  (in  short  TADA)  in Terrorist Criminal  Case, No. 3/96 arising out of I.C.R. No. 4/3 of  the police  station Rakhiyal.  District Ahmedabad on account of non compliance of mandatory provisions of Section 20A of TADA, is under challenge.      The learned  counsel for  the appellant has referred to the decision  of  three  judges’  Bench  of  this  court  in Anirudhssinji Karansinhji  Jadeja  and  Anr.  vs.  State  of Gujarat (AIR  1995 (5) Sc 239). It has been held in the said decision that  cognizance of  the offence  under TADA can be taken on  compliance of the provisions of sub-section (1) of Section 20A  and sub-section  (2) of  Section 20A  of  TADa. Sub-section (2)  of Section 20A of TADA.  Sub-section (1) of section 20 A of TADA provides:      20-A (1)  ’Notwithstanding anything      contained   in    the   code,    no      information  this   Act  shall   be      recorded by  the police without the      prior  approval   of  the  District      Superintendent of Police.’      The learned  counsel has  contended that  in this case, the statutory  authority as  referred to  sub-section (1) of Section 20A  of TADa  has not  given any  prior approval for initiating the  criminal proceedings  under TADA.  Therefore charges under TADA cannot be invoked.      It is,  however, contended  by the  prosecution that on the very date when investigation had been made in this case, the Commissioner  of Police.   Ahmedabad  was present and he had given oral permission under Section 20A (1) of TADA.  We may indicate  here that considering the serious consequences in &  criminal case  initiated under the provisions of TADA, oral permission  cannot be  accepted.   In our view, Section 20A (1)  must be construed authority referred to in the said sub section must be in writing so that there is transparency in the  action of  the statutory  authority and  there is no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

occasion for any subterfuge subsequently by introducing oral permission.      That apart,  in the  facts  of  the  case  we  have  no hesitation to  hold that  even oral  permission had not been granted.  Dr.   Ghatate,  the   learned  counsel   for  that respondent has drawn our attention to two documents, namely, the latter  addressed by  the ACP Crime Branch, Ahmedabad to the Deputy  Commissioner, Crime  Branch, Ahmedabad city, for invoking Sections  3 and  5 of  TADA in  respect of  Rakhial Police Station  CR 1-94/93.    This  letter  is  dated  11th August, 1994.   In  the said letter, a request was made that in the  facts indicated  in the  letter, it was necessary to invoke sections  3 and  5 of  TADA and a request was made to grant approval  accordingly.    The  other  document  placed before us  by Dr.  Ghatate is the permission given by D.C.P. on the  basis of  request made  by the  A.C.P. Crime  Branch Ahmedabad.   It appears  that on 11.8.94 such permission had been granted  by Mr. A.K. Surolia the Deputy Commissioner of Police Crime  Branch,  Ahmedabad  city  and  such  grant  of permission is to the following effect:      ’Therefore, after a careful consideration I deem it fit that in  this case  relevant provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (in short TADA) are to  be applied  in the  FIR and hence I grant permission for the same.’      Such letter  on the  face  of  it  indicates  that  the alleged  oral   permission  had  not  been  granted  by  the Commissioner of  Police otherwise  there would not have been any  occasion  for  seeking  permission  from  an  authority subordinate to the Commissioner of Police namely, the Deputy Commissioner of Police and consequential grant of permission by such  subordinate authority.  As the mandatory provisions of Section  20A (1)  of TADA has not been complied with, the charge under  the provisions  of Sections  3 and  5 of  TADA cannot be  sustained in  the said criminal case.  Therefore, such invocation  of the  provisions of  TADA stands quashed. it is however made clear that  will be open to the concerned authority to  proceed in accordance with law as indicated in paragraph  16   of   the   decision   of   this   Court   in Anirudhsinhji’s case  for invoking  provisions of  TADA.  We make it  clear that  we have not considered as to whether or not in  the facts  of the case, a case under Section 3 and 5 of TADa  has been  made out  because the condition precedent for invoking  such provisions  had not  been complied  with. Such question is therefore kept open to be considered at the appropriate stage.  This appeal is accordingly disposed of.