NAMAD HASSAN BHAGAD AND ORS.versusSTATE OFGUJARAT AND ORS.

A                  NAMAD HASSAN BHAGAD AND ORS.
                                 v.
                     STATE OF·GUJARAT AND ORS.

                                   MAY 9, 1996

B                  [A.S. ANAND, K. VENKATASWAMI, JJ.J

          Terrorist and Dismptive Activities Prevention Act-Sections 3, 4, 5, 7A
    Indian Penal Cod~Sections 121, 12JA, 122, 34--Anns Act-25(J)(A)(D),
    25(I)(A)(2), 25(J)AA, 25(A)(B), 25(A)(F)-Wireless Telegraph
C   Act-Sec.211-Bombay Police Act-Section 135(1}-Attachment of property
    involved in terrorist activity-Property to be attached must be prima-facie
    having sources of purchase from proceeds of tennrism-Not necessary to at-
    tach properties of only those who are involved in the offence under TADA
    Act.

D         In the course of investigation in a case booked under the TADA Act,
    the District Superintendent of Police attached seven ships/vessels invoking
    powers under Section 87A of TADA. An application made by the Police to
    the Designated Judge for confirming the attachment, was opposed by the
    appellants claiming to be the owners of the ships in question.
E         The appellants contended that Section 7A of the TADA came into
    force on and from 22.5.93 and the purchases of all the ships having taken
    place well before that date, the provisions of TADA cannot be invoked, that
    none of the owners had ever been arrested either under TADA or under
    the Customs Act and hence Section 7A of the TADA is not applicable and
F   that to invoke Section 7A of TADA there should be knowledge or reasons
    to believe that properties attached are involved in terrorist activities and
    that requirement was not satisfied on the facts of the case.

          The Public Prosecutor contended that on prima facie case being
    made out and entertaining reason to believe that the property in question
G   falls within the mischief of Section 7A the attachment in question was
    made, that further inquiry/investigation was still going on regarding all
    the seven ships to conclusively find as to whether they were involved in
    smuggling activities or not, and that since some of the persons were
    absconding and some others were not available, at that stage attachment
H   could not be revoked and he prayed for confirmation of attachment.
                                       614
               N.H. BHAGAD v. STATE[K. VENKATASWAMI,J.]                   615




-         TI1e Designated Judge on being satisfied with the primafacie finding A
    and on being satisfied with the prima facies case confirmed the attachment
    by the judgment under appeal. The Designated Court found that there was
    no mention at all in Section 7A that the property to be investigated must
    be the property of an offender against whom the offence under Section 7A
    is to be registered and what was required to be established was that the
    property in relation to which the investigation was made must be having
                                                                               B
    sources of purchase from the amount or proceeds of terrorism or by way
    of commission of terrorist activity. Therefore, it found that it was not
    necessary or incumbent upon the Investigating Ollicer to attach only
    properties of the persons who were involved in the offence under TADA
    Act and that on the other hand, any property can be attached if it is C
    reasonably believed that it was derived from the commission of any ter-
    rorist activity or was acquired by the proceeds of 'terrorism'.

          Disposing of the Appeal the Court

          HELD : 1. From the material ou record the Court is satisfied that      D
    the Investigating Ollicer prima facie and reason to. believe that there is
    basis for invoking Section 7A of TADA. [618-G]

          2. The conclusions reached by the designated Judge need not be
    interfered with. [619-AJ
                                                                                 E
          3. The ship bearing the name "Nahi Mahar" cannot be kept under
    attachment, the reason being that this ship was purchased long before the
    passing of TADA. The said ship has to be released from attachment. [619-B)

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                  F
    507 of 1994.

        From the Judgment and Order dated 1.7.94 of the Designated Judge
    (TADA ACT) Jamnagar in Order below Ex. 1 in Report Application
    (TADA ACT) No. 1of1993.
                                                                                 G
         B.K. Mehta, B.V. Desai and Mrs. Meeta Sharma for the Appellants.

         Dr. N.M. Ghatate, Ms. Rekha Pandey, Ms. H. Wahi, Ms. S. Hazarika
    and Ms. Nandini Mukherjee for the Respondents.

         The Judgment of the Court was delivered by                              H
    616                   SUPREME COURT REPORTS (1996/ SUPP. 2S.C.R.

A         K. VENKATASWAMI, J. This appeal preferred under section 19 of
    the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter
    reforred to as "TADA") challenges the judgment and order of the learned
    Designated Judge (TADA), Jamnagar dated July 1, 1994.

          The learned Designated Judge confirmed an order uf attachment of
B   seven vesseb/ships under Section 7A of TADA pending further investiga-
    tion in the matter.

          At the outset we would like lo make it clear that we du not propose
    tu deal with the matter either in detail or to give a final decision in this
    matter in view of the fact that when the judgment under appeal was made
c   the matter \Vas under the investigation stage unly. In our view any opinion
    expressed at this stage might cause prejudice to either party and that is the
    reason for not going into the matter in detail or giving any final decision.
    Briefly slated the facts are as under :

D         In the Kalyanpur Police Station Crime Register No. 62/93 related to
    a case booked for the offences punishable under sections 121, 121A, 122,
    34 !PC and 25(1)(A)(D), 25(1)(A)(2), 25(1)AA, 25(A)(B), 25 (A)(F) of
    the Arms Act, Section 25 of Wireless Telegraph Act and Sections 3, 4 and
    5 of TADA and Section 135(1) of the Bombay Police Act. In the course
E   of investigation one diary of Hamir Sajan was found and it contained
    certain financial transactions relating to one Haji Haji Ismail for purchas-
    ing the ships in question. The District Superintendent of Police attached
    tho'e ships invoking powers under Sectiun 7A of TADA. A report applica-
    tion No. 1/93 was filed before the learned Designated Judge seeking
    confirmation of attachment.
F
          The appellants claiming to be the owners of the ships in question
    objected to the attachment and sought revocation of such attachment
    before the learned Designated Judge.

          It was argued before the learned Designated Judge that section 7A
G of TADA came into force on and from 22.5.1993 and the purchases of all
    the ships having taken place well before the date, the provisions of TADA
    cannot be invoked. It was also contended that none of the persons object-
    ing (claiming to be the owners) the attachment had ever been arrested
    either under the provisions of Customs Act or under TADA and hence
H   prima facie Section 7A of TADA has no application. It was further
           N.H. Bl·IAGAD v. STATE [K. VENKATASWAMI, J.]                   617

contended that to invoke Section 7A of TADA there should be knowledge            A
or reasons to believe that properties attached are involved in terrorist
activities and that requirement was not satisfied on the facts of the case.

      Before the learned Designated Judge, the Designated Public
Prosecutor after narrating the facts relating to the purchase of the seven
ships in question contended that on p1inw facie case being made out and B
entertaining reason lo believe that the .property in question falls within the
mischief of Section 7A attachment in question was made and that further
inquiry/investigation was still going on regarding all the seven ships to
conclusively find as to whether they were involved in smuggling activities
or not. It was admitted that since some of the persons were absconding           c
and some of others had left the district therefore, at that stage, attachment
could not be revoked and he prayed for confirmation of the order of
attachment.

      The learned Designated Judge bearing in mind that the investigation        D
was still going on has given only a prima facie finding and on being satisfied
with the prima facie case confirmed the attachment by the judgment under
appeal.

       The learned Designated Judge found that the main accused was one
Haji Haji Ismail and he was doing the landing activities of gold and silver E
articles which are smuggled goods and in order to see that Government
authorities do not cause any hurdles to him in carrying out such activities
he was possessing automatic rifles. foreign made Pistols and other latest
and scientific means of communications and they were already attached
and Hamir Sajan and other three persons were arrested. Though they were F
released on bail, in the first instance on the ground that TADA does not
apply to them, on appeal to this Court, the order granting bail to them was
cancelled and all the accused were taken into custody. The learned Desig-
nated Judge als9 found, prima facie, that there was no mention at all in
Section 7A that the property to be investigated must be the property of an
offender against whom the offence under Section 7A is to be registered. G
According to the learned Judge what was required to be established was
that the property in relation to which the investigation was made must be
having sources of purchase from the amount or proceeds of terrorism or
by way of commission of terrorist activity. Therefore, the learned Judge
found that it was not necessary or incumbent upon the Investigating Officer H
    618                   SUPREME COURT REPORTS i 1996) SUPP. 2 S.C.R.

A   to attach only properties of the persons who were involved in the offence
    under TADA Act and that on the other hand, any property can be attached
    if it is reasonably believed that it was derived from the commission of any
    terrorist activity or was acquired by the proceeds of 'terrorism'. The
    learned Judge also found that 'the aforesaid party (namely the appellants
    herein) arc related to the main smuggler Haji Haji Ismail' who is abscond-
B   ing and by using the funds provided by him the ships in question were
    purchased and so it can he said that :

                "p1ima fade, doing smuggling activity of keeping and possessing
            latest and modern foreign made arms and ammunitions in order
c           to cause terrorism among the Customs and Police Officers would
            mean that by keeping the authority such as Custom Officers or
            Police Personnel in constant fear due to his terrorist activities, the
            amount is derived from that activity, it would mean that the fond
            is created by way of terrorist act, as Haji Haji Ismail has managed
            for the money to purchas~ seven ships to the opposite party
D           members who have purchased the ships in their names only as a
            show and ostentation so that they can be safe from attachment or
            they can be safe from penal action and such other consequences."

            Finally the learned Judge observed that :
E               "Therefore, at this juncture, it is established prima facie that
            ships mentioned in report Application No. 1/1993 are liable to be
            attached and they are attached rightly as stated by the authorities
            and they deserve to be confirmed."

F         Mr. Mehta, learned Senior Counsel reiterated the same arguments
    which were addressed before the learned Designated Judge. As we have
    observed at the outset it would not be advisable to give any definite opinion
    with regard to the involvement' of the attached ships at this stage except
    observing that from the materials on record we are satisfied that the
G   Investigating Officer prima facie had reason to believe that there is basis
    for invoking Section 7A of TADA. We may also add in fairness to Senior
    Counsel that he cited certain judgments to support his arguments, but for
    the very same reasons as given above we do not think it is necessary to
    quote and elaborate those citation>.

H         After carefully going through all the relevant papers and the prima
           N.1-L BHAGAD v. STATE [K VENKATASWAMI,J.]                  619

facie views expressed by the learned Designated Judge, we are of the A
opinion that at this stage we need not interfere with those conclusions
reached by the learned Designated Judge. However, on the facts of this
case, the_ ship bearing the name "Nabi Mahar", Registration No. B.D.l. 430
purchased on 10.12.1965, as per the case of the prosecution itself, cannot
be kept under attachment, the reason being that this ship was purchased
long before the passing of TADA. Therefore, the said ship has to be          B
released from attachment. We make an order accordingly. Except for this
modification, for obvious reason. We do not find any ground to interfere
with the judgment and order of the learned Designated .Judge in any other
respect. Subject to the modification as above, the appeal stands disposed
of.                                                                          c
V.M.                                                  Appeal disposed of.