Case Note & Summary
The appeal arose from an order of the Designated TADA Court dismissing the appellants' application for discharge on the ground of non-compliance with Section 20A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act). The appellants, Ebha Arjun Jadeja and two others, were accused in Crime No. II-28/1995 registered under the Arms Act, 1959 and TADA Act. The prosecution alleged that on 10.04.1995, Police Inspector C.J. Singh received information that appellant no. 1, absconding in an earlier case, was coming to his village. A naka was set up, and the accused were found in a motor vehicle with firearms and ammunition. The FIR was initially recorded under the Arms Act and Bombay Police Act, but the officer also mentioned that an offence under Section 5 of TADA Act appeared to be made out and that arrangements were being made for sanction under Section 20A(1). Later the same day, the District Superintendent of Police granted sanction to add Section 5 of TADA Act. The appellants contended that under Section 20A(1), no information about a TADA offence could be recorded without prior approval of the DSP, and since the FIR was recorded without such approval, the proceedings were vitiated. The Supreme Court examined the language of Section 20A(1), which starts with a non-obstante clause and uses negative words, and held it to be mandatory. The Court relied on precedents including Rangku Dutta v. State of Assam, Anirudhsinhji Karansinhji Jadeja v. State of Gujarat, Ashrafkhan v. State of Gujarat, and Hussein Ghadially v. State of Gujarat, which consistently held that non-compliance of Section 20A(1) vitiates the entire proceedings and is not a curable defect under Section 465 CrPC. The Court rejected the State's argument that approval under Section 20A(2) could cure the defect, noting that both provisions operate at different stages. Consequently, the Supreme Court allowed the appeal, set aside the order of the TADA Court, and discharged the appellants from the TADA offences, though they remained liable for other offences under the Arms Act and Bombay Police Act.
Headnote
A) Criminal Law - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 20A(1) - Mandatory Requirement - Prior Approval of District Superintendent of Police - The provision is couched in negative terms and starts with a non-obstante clause, making it mandatory. Recording of information without prior approval vitiates the entire proceedings. (Paras 6-11) B) Criminal Law - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 20A(1) - Non-Compliance - Effect - Non-compliance of Section 20A(1) is not a curable defect under Section 465 CrPC and renders the trial and conviction for offences under TADA invalid. (Paras 9-11) C) Criminal Law - Terrorist and Disruptive Activities (Prevention) Act, 1987 - Section 20A(1) and 20A(2) - Distinct Safeguards - Both provisions operate at different stages and must be complied with separately. Approval under Section 20A(2) cannot cure the absence of approval under Section 20A(1). (Para 9)
Issue of Consideration
Whether the failure to obtain prior approval of the District Superintendent of Police under Section 20A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 before recording information about the commission of an offence under the Act vitiates the entire proceedings?
Final Decision
Appeal allowed. Order of Designated TADA Court set aside. Appellants discharged from offences under TADA Act. They remain liable for other offences under Arms Act and Bombay Police Act.
Law Points
- Section 20A(1) of TADA Act is mandatory
- non-compliance vitiates proceedings
- prior approval of DSP required before recording information
- negative words are rarely directory
- non-compliance not curable under Section 465 CrPC
