Holding

The sanction orders under Section 20‑A(2) of TADA were invalid due to lack of application of mind, rendering the Designated Court without jurisdiction to try the TADA offences, and in the absence of admissible evidence for other charges the acquittal was upheld.

Summary

The State of Gujarat appealed the acquittal of Anwar Osman Sumbhaniya and others by a Designated Court under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA). The appeal centered on whether the prior sanctions issued under Section 20‑A(2) of TADA for the 1993 and 2005 prosecutions were valid. The Supreme Court held that both sanction orders were invalid because they were issued without proper consideration of the material and amounted only to permission to apply TADA, not a sanction to prosecute. Consequently, the Designated Court could not have taken cognizance of the TADA offences, and the confessional statements recorded under TADA could not be used to prove offences under other statutes. Since there was no admissible evidence for the other charges, the acquittal stood. The Court affirmed that a Designated Court may try other offences only when valid TADA sanction exists and admissible evidence is available. The appeals were dismissed.

Issues considered

Whether the sanction orders issued under Section 20‑A(2) of TADA in 1993 and 2005 were valid.
Whether the Designated Court can try offences under statutes other than TADA when a valid TADA sanction is absent.
Whether confessional statements recorded under TADA are admissible for offences under other enactments.
Whether the acquittal of the respondents should be set aside in view of the alleged procedural defects.

Legislation cited

Arms Act, 1959s. 25, s. 27, s. 29A
Indian Penal Code, 1860s. 121, s. 121A, s. 122, s. 34
Indian Telegraph Act, 1885s. 20
Indian Wireless Telegraphy Act, 1933s. 6(1-A)
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 12(1), s. 12(2), s. 20-A(1), s. 20-A(2), s. 3, s. 4, s. 5

Subjects

TADAprior sanctionDesignated Court jurisdictionconfessional statement admissibilityarms possessionwalky‑talkieterrorismacquittalinvalid sanction

Judgment

[2019] 2 S.C.R. 749 749

THE STATE OF GUJARAT A
v.
ANWAR OSMAN SUMBHANIYA AND ORS.
(Criminal Appeal Nos. 1359-1361 of 2007)
FEBRUARY 27, 2019
B
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Terrorist and Disruptive Activities (Prevention) Act, 1987: s.20-
A(2) – Prior sanction under s.20A(2) – Validity of – By impugned
order, Designated Court held that there was no prior sanction under
s.20-A(2) before taking cognizance of the offence committed by the
respondents – Held: Perusal of the subject sanction order showed C
that it adverted only to the FIR and proposal received from DSP –
The noting in the sanction order was indicative of the fact that it
was not a sanction to prosecute the accused but at best giving
permission to apply the provisions of TADA – Such a sanction cannot
be considered as a valid sanction – Penal Code, 1860 – ss.121, D
121A, 122 and s.34 – Arms Act, 1959 – ss.25, 27(1) and 29A –
Telegraph Act, 1885 – s.20 – Indian Wireless Telegraphy Act, 1933
– s.6(1-A).
Terrorist and Disruptive Activities (Prevention) Act, 1987: s.3
– Mere possession of walky-talkies per se would not be an offence
E
under TADA – In the instant case, sanction order in respect of
respondent no.3 showed that there was nothing to indicate as to
whether the sanctioning authority was conscious of the materials
gathered during investigation qua respondent No.3 which merely
suggested possession and recovery of two walky-talkies from him –
The sanctioning authority was under a bounden duty to accord F
sanction, specific to offences, from amongst the different offences
under sub-sections (1) to (6) of s.3 of TADA – s.4 refers to disruptive
activities whereas s.5 refers to possession of unauthorized classified
arms and ammunition – A walky-talky is certainly not one of those
classified arms and ammunition – The purported sanction suffered
G
from the vice of non-application of mind, on this count alone.
Terrorist and Disruptive Activities (Prevention) Act, 1987:
Power of Designated Court to try any other offence (other than
TADA) – Whether the Designated Court could convict the accused
persons for offences punishable under other enactments (other than
H
749
750 SUPREME COURT REPORTS [2019] 2 S.C.R.

A TADA) – Held: Designated Court, besides trying the case under
TADA, can also try any other offence with which the accused may
be charged at the same trial if the offences are connected with
offences under TADA – For, implicit power has been bestowed upon
the Designated Court to convict the accused for offences under
other enactments if there is legally admissible evidence to establish
B
those charges – However, in the instant case, prosecution essentially
relied upon the confessional statement of the accused recorded under
the provisions of TADA – That will be of no avail and certainly not
admissible against the accused in the trial for offences under other
enactments, especially when the Designated Court could not have
C taken cognizance of the offence under TADA for lack of a valid
sanction – There was no legally admissible evidence to establish
the charges against the respondents regarding offences under other
enactments (other than TADA) – The conclusion reached by the
Designated Court, that the respondents were not guilty of the
offences for which they were charged and tried, is not interfered
D
with.
Dismissing the appeals, the Court
HELD: 1. The sanction order (Exh.84) issued under Section
20-A(2) of TADA by DGP (PW-14) shows that the author of the
E document DGP (PW-14), adverted only to the FIR and the
proposal received from DSP, Jamnagar (PW-15). The
understanding of PW-14 was that the proposal received from DSP,
Jamnagar (PW-15) was for granting approval to apply provisions
of TADA and the said proposal was accepted. The respondents
rightly relied on the dictum in Gadhvi’s case, where a similar
F
purported sanction under Section 20-A(2) of TADA issued by
the very same officer DGP (PW-14), in respect of some other
TADA case, came up for consideration. The wording of sanction
order considered therein was similar to the one under
consideration. [Para 13][764-F-H]
G
Rambhai Nathabhai Gadhvi & Ors. v. State of Gujarat (1997)
7 SCC 744 : [1997] 3 Suppl. SCR 356 – relied on

H
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 751

1.2 The subject sanction (Exh.84) was issued by the very A
same officer and presumably prepared on the same date 3.11.93,
but signed and issued on 9.11.1993. Even in the instant case,
reference was only to two documents reckoned by PW-14 before
issuing the sanction, the FIR and the letter or proposal sent by
the DSP, Jamnagar. In the evidence, although it was asserted
B
that the DSP (PW-15) was called for discussion and who, in turn,
apprised him of all the relevant details of the investigation, but
that fact was not reflected in any contemporaneous record. No
such record was produced by the prosecution. What is significant
is the wording of the subject sanction (Exh.84). When juxtaposed
with the sanction in the reported case (Exh.63 reproduced in C
paragraph 9 of the said judgment), it is obvious that even in the
instant case, what was noted in Exh.84 was the permission to
apply Sections 3, 4 and 5 of TADA. In paragraphs 14 and 15 of
the reported decision, this Court opined that such noting was
itself indicative of the fact that it was not a sanction to prosecute
D
the accused but at best giving permission to apply the provisions
of TADA. Such a sanction cannot be considered as a valid sanction,
much less issued after due application of mind. The same logic
applies proprio vigore to the fact situation of the instant case.
[Para 14][767-C-F]
2.1 The sanction dated 1st April, 2005 (Exh.57), concerning E
accused No.3/respondent No.3, issued under the signature of
‘AKB’, IGP (who is not examined) read with the evidence of PW-
10 show that it was issued after due consideration of all the
relevant material, including police papers. The evidence of PW-
10 indicates that a Yadi was received on 27th March, 2005 in the F
Office of Director General of Police and Chief Police Officer, where
the witness was working as ASI. The same is dated 11th March,
2005 (Exh.55), issued under the signature of PW-13. This was
followed by a communication sent under the signature of
Superintendent of Police, Jamnagar (not examined) dated 15th
March, 2005 (Exh.56). The purported sanction dated 1st April, G
2005 (Exh.57) was finally issued under the signature of ‘AKB’,
IGP (not examined). [Paras 16-18][767-G-H; 768-A, 771-D;
774-A]

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752 SUPREME COURT REPORTS [2019] 2 S.C.R.

A 2.2 A bare perusal of Exh.57 showed that there is nothing
to indicate as to whether the sanctioning authority was conscious
of the materials gathered during investigation qua the concerned
accused (respondent No.3), which merely suggested possession
and recovery of two walky-talkies from him. If that is the only
incriminatory material against accused No.3/respondent No.3, the
B
sanctioning authority ought to have pondered over the crucial
aspects including as to how such possession would entail in
commission of any offence muchless punishable under Sections
4 or 5 of TADA. Further, section 3 of TADA posits different
offences, namely, terrorist acts [Section 3(2)], being party to
C conspiracy or abetment or knowingly facilitating the commission
of terrorist acts [Section 3(3)], harbouring or concealing any
terrorist [Section 3(4)], being member of a terrorist gang or
terrorist organization, which is involved in terrorist acts [Section
3(5)], and to hold any property derived or obtained from
commission of any terrorist act [Section 3(6)]. The sanctioning
D
authority was under a bounden duty to accord sanction, specific
to offences, from amongst the different offences under sub-
sections (1) to (6) of Section 3 of TADA. Section 4 refers to
disruptive activities whereas Section 5 refers to possession of
unauthorized classified arms and ammunition. A walky-talky is
E certainly not one of those classified arms and ammunition. The
purported sanction vide Exh.57 also suffers from the vice of non-
application of mind, on this count alone. [Para 19][775-C-G]
3. It is now well settled that the Designated Court, besides
trying the case under TADA, can also try any other offence with
F which the accused may be charged at the same trial if the offences
are connected with offences under TADA. For, implicit power
has been bestowed upon the Designated Court to convict the
accused for offences under other enactments if there is legally
admissible evidence to establish those charges. Even in the
instant case, it is noticed that the prosecution has essentially
G relied upon the confessional statement of the accused recorded
under the provisions of TADA. That will be of no avail and certainly
not admissible against the accused in the trial for offences under
other enactments, especially when the Designated Court could
not have taken cognizance of the offence under TADA for lack of
H
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 753

a valid sanction. Additionally, in the instant case, the evidence A
produced by the prosecution regarding search and seizure is
replete with fatal deficiencies. There was no legally admissible
evidence to establish the charges against the respondents
regarding offences under other enactments (other than TADA).
The conclusion reached by the Designated Court, that the
B
respondents were not guilty of the offences for which they were
charged and tried, needs no interference. [Paras 23, 24, 25]
[777-B-C; 778-D-F]
Prakash Kumar alias Prakash Bhutto v. State of Gujarat
(2005) 2 SCC 409 : [2005] 1 SCR 408 – followed
Ashrafkhan alias Babu Munnekhan Pathan & Anr. v. State C
of Gujarat (2012) 11 SCC 606 : [2012] 12 SCR1033 – relied
on
Ahmad Umar Saeed Sheikh v. State of U.P. (1996) 11 SCC
61 : [1996] 9 Suppl. SCR 53 ; Harpal Singh v. State of
Punjab, (2007) 13 SCC 387 : [2007] 12 SCR 830 ; State of D
A.P. v. A. Sathyanarayana and Ors. (2001) 10 SCC 597 ;
State of Bihar & Anr. v. P.P. Sharma & Anr. (1992) Supp. (1)
SCC 222 : [1991] 2 SCR 1 ; Mohd. Iqbal M. Shaikh & Ors.
v. State of Maharashtra (1998) 4 SCC 494 : [1998] 2 SCR
734 ; State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC E
600 : [2005] 2 Suppl. SCR 79 ; Seeni Nainar Mohammed v.
State (2017) 13 SCC 685 : [2017] 3 SCR 312 – referred to
Case Law Reference
[1997] 3 Suppl. SCR 356 relied on Para 7
[1996] 9 Suppl. SCR 53 referred to Para 7 F
[2007] 12 SCR 830 referred to Para 7
[2005] 1 SCR 408 followed Para 7
(2001) 10 SCC 597 referred to Para 8
[1991] 2 SCR 1 referred to Para 8 G
[1998] 2 SCR 734 referred to Para 8
[2005] 2 Suppl. SCR 79 referred to Para 8
[2017] 3 SCR 312 referred to Para 8
[2012] 12 SCR 1033 relied on Para 23 H
754 SUPREME COURT REPORTS [2019] 2 S.C.R.

A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1359-1361 of 2007
From the Judgment and Order dated 12.01.2007 of the Designated
Judge, Jamnagar, in Special TADA Case Nos. 3 of 1994, 3 of 1997 and
1 of 2005
B Ms. Pinky Behra, Ms. Vishakha and Ms. Hemantika Wahi, Advs.,
for the Appellant.
A. Sirajudeen, Sr. Adv., Ms. Nidhi, Karri Venkata Reddy and
S. Gokula Krishnan, Advs., for the Respondents.
The Judgment of the Court was delivered by
C A. M. KHANWILKAR, J.
1. The instant appeals filed under Section 19 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (for short “TADA”), are
against the final judgment and order dated 12th January, 2007 passed by
the Designated Judge, Jamnagar in Special TADA Case Nos.3/1994, 3/
1997 and 1/2005, whereby the respondents have been acquitted after
D
finding them not guilty of the stated offences.
2. Separate charge-sheets were filed against the respondents for
offences punishable under Sections 121, 121A, 122 read with Section 34
of the Indian Penal Code, Sections 3, 4 and 5 of TADA, Sections
25(1)(A)(D), 25(1AA), 25(1B)(A B F G), 27(1), 29(A) of the Arms
E Act, 1959 (for short “1959 Act”), Section 20 of the Indian Telegraph
Act, 1885 (for short “1885 Act”) and Section 6(1-A) of the Indian
Wireless Telegraphy Act, 1933 (for short “1933 Act”). The respondents
were tried for the aforesaid offences in Special TADA Case Nos.3/
1994, 3/1997 and 1/2005, before the Special Court at Jamnagar, which
F was then transferred to the Court of Designated Judge at Jamnagar.
Since all the three charge-sheets were in connection with one and the
same offence and to obviate repetition of evidence, consolidated evidence
was recorded for all the cases in Special TADA Case No.3/1994.
3. The complaint (Exh.27A) was lodged by one Bakul Vithalbhai
Jani (PW-6), on the basis of information that respondent No.1 – Anwar
G
Osman Subhaniya, resident of Salaya Barlovas, Hussaini Chowk “Hasmi
Manzil”, was in illegal possession of foreign made fire arms weapons at
his residential house. The raiding party, after obtaining prior approval

H
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 755
[A. M. KHANWILKAR, J.]

(Exh.30) of Pramod Kumar Jha, DSP (PW-15), proceeded along with A
search warrant, and upon search of the residential house of respondent
No.1, conducted by the raiding party, following items were seized:
(i) One – Foreign made carbine gun with magazine valued
Rs.2 lakhs.
(ii) One – Foreign made revolver with eight chambers worth B
Rs.60,000/-.
(iii) One – Foreign made revolver with six chambers worth
Rs.45,000/-.
(iv) One – Transmitter walky-talky set worth Rs. 1 lakh.
(v) 52 live cartridges of 9 mm stain guns. C
(vi) 4 live cartridges of revolvers.
4. Immediately after recovery of arms and ammunition, after
seeking prior oral approval of PW-6, FIR was lodged vide CR-21/93 for
the stated offences only against respondent No.1 and he came to be
arrested on 18th June, 1993. Later, on 21st June, 1994, a charge-sheet D
was filed against respondent No.1 and the case was registered as Special
TADA Case No.3/1994. Along with the charge-sheet, sanction for
prosecution (Exh.84) was obtained from A.K. Tandon, Director General
of Police (PW-14) under Section 20-A(2) of TADA on 3-9/11-93.
Respondent No.2 - Junas Hazi Ibrahim came to be arrested on 20 th
E
March, 1997 and his confessional statement under Section 15 of TADA
was recorded on 25th March, 1997, when he stated that he sold one
carbine gun to respondent No.1. Charge-sheet was filed against
respondent No.2 on 6th April, 1997 whereafter a case was registered
against him as Special TADA Case No.3/1997 before the Designated
Court, Jamnagar. Respondent No.3 came to be arrested in 2005 in F
connection with another CR No.43/1994 registered under Sections 3, 4
& 5 of TADA by the B. Division Police Station on 10th December, 2004.
A transfer warrant was obtained from the TADA Court, Jamnagar for
arresting and taking custody of the respondent No.3 before his arrest.
After completion of investigation against respondent No.3, separate
G
charge-sheet came to be filed on 29th April, 2005 after obtaining prior
sanction (Exh.57) under Section 20-A(2) of TADA from A.K. Bhargav
dated 1st April, 2005.

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756 SUPREME COURT REPORTS [2019] 2 S.C.R.

A 5. As aforesaid, all the three separate charge-sheets were
registered as three Special TADA cases, being Special TADA Case
Nos.3/1994, 3/1997 and 1/2005 before the Designated Court at Jamnagar.
The Designated Court framed charges against the respondents on 12 th
September, 2005 to which they pleaded not guilty and wanted to be tried
for the alleged offence. The prosecution examined 15 prosecution
B
witnesses and their statements were recorded along with documentary
evidence in support of the case. The respondents did not produce any
defence witness. The Designated Court then proceeded to consider the
rival arguments and framed the following issues for consideration:
“1) Whether prosecution proves beyond reasonable doubt that
C accused have with a view to do the war against India Government,
by aiding and abutting each other, in furtherance of their common
intention, to prepare in advance to collect the weapons by previously
arranging conspiracy and as a part of that conspiracy, before any
time prior to 18-6-93 at 10:00 hrs. brought sub-Machinegun,
D Revolver and cartridges and walky talky set for non telephonic
message and kept it at the residential house of accused No.1
Anwar Osman Subhaniya?
2) Whether prosecution proves beyond reasonable doubt that
accused have in connection with the same offence, in furtherance
of their common intention as shown in issue No.1, with a view in
E furtherance of their common intention, aided and abutted each
other, before any time prior to 18-6-93, found from the possession
of accused No.1 Anwar Osman Sumbhaniya from his residential
house, one Egypt made self operating sub machine gun and 0.22
Caliber Germany made revolver and 0.8 caliber American made
F revolver and stain Gun and revolver cartridges and transmeter
walky talky set?
3) Whether prosecution proves beyond reasonable doubt, that in
connection with the same offence during 21-45 to 23-45 on 29-7-
93 at Salaya port road from the STD PCO from possession of
accused No.1, wireless set without licence was found out?
G
4) Whether prosecution proves beyond reasonable doubt that in
connection with the same offence, accused brought the above
muddamal sub machine gun, revolver and cartridges without
licence from abroad and where found in the conscious possession
of accused No.1?
H
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 757
[A. M. KHANWILKAR, J.]

5) Whether prosecution proves beyond reasonable doubt that in A
connection with same offence, accused brought Japan made two
transmeter, wire-less set, before 18-6-93 at any time from foreign
in the above muddamal in India, with common and criminal
intention without licence and done exchange mutually and where
foundout in the conscious possession of accused No.1 from STD
B
PCO and from the residential house?
6) Out of accused who can be convicted and for what offence?
7) What order?”
6. Even though no issue regarding validity of prior approval before
registration of FIR under Section 20-A(1) or the validity of prior sanction C
under Section 20-A(2) of TADA before taking cognizance was framed,
the Designated Court at the outset proceeded to answer the said issues
and opined that neither prior approval under Section 20-A(1) of TADA
nor prior sanction under Section 20-A(2) of TADA was in conformity
with the mandate of the stated provisions. So holding, the Designated
Court held that the respondents could not be proceeded further for the D
alleged offences. Despite the Designated Court being fully convinced
about the illegality of “prior approval” and “prior sanction”, it also adverted
to the evidence on record and observed that there was no legal evidence
to record a finding of guilt against the respondents. For, the confessional
statement recorded purportedly under the provisions of TADA, cannot E
be looked at. The same would not be admissible once the prosecution
fails on account of lack of a valid sanction to prosecute under TADA.
Further, the search and seizure procedure was also replete with illegalities.
The Designed Court, therefore, acquitted the respondents, holding them
not guilty for the stated offences, and consequently, directed immediate
release of respondent No.3/accused No.3, who was in judicial custody F
as undertrial prisoner, if was not required in any other case. The bail
bonds of respondent Nos.1 & 2/accused Nos.1 & 2 were ordered to be
cancelled.
7. This decision of the Designated Court is the subject matter of
challenge in these appeals filed by the State. According to the appellant, G
the Designated Court committed manifest error in concluding that no
valid prior approval under Section 20-A(1) of TADA was obtained before
registration of FIR for the stated offences. This opinion, however, was
founded on a decision of this Court which is no more a good law. It is

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758 SUPREME COURT REPORTS [2019] 2 S.C.R.

A now well settled that even the prior oral approval can be reckoned as a
valid approval within the meaning of Section 20-A(1) of TADA, albeit
supported by contemporaneous record in that regard to be followed by a
formal written approval. As regards prior sanction accorded by A.K.
Tandon (PW-14), there was ample material on record to substantiate
that he had accorded sanction (Exh.-84) after due consideration of the
B
relevant aspects and it was not a case of non-application of mind. Similarly,
the prior sanction (Exh.-57) accorded by A.K. Bhargav in respect of
accused No.3, is also backed by relevant material duly considered by
him, as is evident from the evidence of Raghuvirsinh Surubha Chudasama,
Dy.S.P. (PW-13) and Yashodhar Ramchandra Vaidya (PW-10). The
C opinion of the Designated Court that even this sanction order suffers
from the vice of non-application of mind is manifestly wrong. It is
alternatively contended that even if the Designated Court was right in
concluding that the prosecution of the respondents suffered due to lack
of valid approval or valid sanction, it should not have dilated on other
aspects of the case on merits - as the only option left to the Designated
D
Court in such a situation would be to transfer the case to a regular court
under Section 18 of TADA. At any rate, the Designated Court could
not have acquitted the respondents/accused. Instead, it could have given
opportunity to the prosecution to launch prosecution afresh with a valid
sanction as per the dictum in paragraph 20 of the decision of this Court
E in Rambhai Nathabhai Gadhvi & Ors. Vs. State of Gujarat1. If the
prosecution was not inclined to avail of that option, the Designated Court
as aforesaid, should have exercised powers under Section 18 of TADA
to transfer the case to a regular court having jurisdiction under the Code
for trial of other offences. To buttress the above submission, reliance is
placed on the decisions of this Court in Ahmad Umar Saeed Sheikh
F
Vs. State of U.P.2, Harpal Singh Vs. State of Punjab,3 and Prakash
Kumar alias Prakash Bhutto Vs. State of Gujarat4.
8. The respondents, on the other hand, have supported the final
opinion of the Designated Court to acquit them. As regards the validity
of prior approval under Section 20-A(1) of TADA, founded on oral
G approval followed by written approval, learned counsel for the
respondents, in all fairness, submitted that the three-Judge Bench of this
Court in State of A.P. Vs. A. Sathyanarayana and Ors.5 holds the
1
(1997) 7 SCC 744
2
(1996) 11 SCC 61
3
(2007) 13 SCC 387
4
H (2005) 2 SCC 409
5
(2001) 10 SCC 597
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 759
[A. M. KHANWILKAR, J.]

field. Resultantly, it may not be necessary for this Court to probe into A
that question and instead may proceed on the basis that a valid prior
approval was accorded in the present case before registration of FIR
for offences punishable under TADA. However, he contended that no
fault can be found with the conclusion reached by the Designated Court
that the prior sanction accorded in the present case under Section 20-
B
A(2) of TADA suffers from the vice of non-application of mind and that
finding recorded by the Trial Court is a possible view - which has been
expressed after due analysis of the evidence on record in that regard.
He has placed reliance on the decision of this Court in Gadhvi’s case
(supra) where a similar sanction order issued by A.K. Tandon (PW-14)
in another TADA case, registered at Khambala Police Station under his C
jurisdiction, has been deprecated. The Court expressed strong disapproval
regarding the approach of the officer [A.K. Tandon (PW-14)], being
reflective of scanty application of mind in respect of vital and crucial
aspects before according sanction under Section 20-A(2) of TADA. It
is contended that even in that case, the sanctioning authority (A.K.
D
Tandon) had merely adverted to the First Information Report and the
office note sent by the Superintendent of Police seeking permission or
sanction. Further, the sanction order had noted that permission to add
Sections 3, 4 or 5 of TADA was being given, as is the noting made in the
subject sanction order (Exh.-84). Such noting, it has been held suffers
from the vice of non-application of mind, a casual approach and completely E
in disregard of the mandate of the law requiring prior sanction of the
competent authority. For, it plainly overlooks the marked distinction
between grant of approval for adding sections of TADA at the stage of
registration of FIR and, on the other hand, according sanction to prosecute
the accused under the provisions of TADA before laying the charge-
F
sheet in the Designated Court qua them. Learned counsel submits that
the same logic would apply to the subject sanction order dated 3/9-11-93
(Exh. 84). The evidence of PW-14 or PW-15 or for that matter, other
documentary evidence Exh.82 and Exh.83, will be of no avail to justify
the validity of Exh.84. As regards the sanction accorded to prosecute
accused No.3, dated 1st April, 2005 (Exh. 57), the same also, ex-facie, G
suffers from the vice of non-application of mind. For, the evidence
gathered during the investigation against accused No.3, at best, indicated
that two walky-talkies were recovered from him. The sanctioning
authority ought to have reckoned this fact, which by no standard would
constitute an offence under the TADA. Inasmuch as mere possession
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760 SUPREME COURT REPORTS [2019] 2 S.C.R.

A of such walky-talkies per se would not be an offence under TADA.
The sanctioning authority has palpably failed to evaluate the materials
gathered during the investigations before recording its satisfaction on
the factum whether any terrorist act has been committed by the named
person within the meaning TADA or for that matter being a member of
the terrorist gang or party to the conspiracy or abetment or facilitating
B
the commission of a terrorist act. In substance, learned counsel for the
respondents submits that no interference is warranted with the finding
of fact recorded by the Designated Court that the sanction orders issued
by the competent authority (Exh.84 and Exh. 57) suffer from the vice of
non-application of mind. To buttress this submission, learned counsel for
C the respondents has placed reliance on State of Bihar & Anr. Vs. P.P.
Sharma & Anr.6, Rambhai Nathabhai Gadhvi (supra), Mohd. Iqbal
M. Shaikh & Ors. Vs. State of Maharashtra7, State (NCT of Delhi)
Vs. Navjot Sandhu 8, Seeni Nainar Mohammed Vs. State 9.
9. We have heard Ms. Pinky Behra, learned counsel appearing
D for the State of Gujarat and Mr. A. Sirajudeen, learned senior counsel
appearing for the respondents.
10. First we intend to deal with the issue of validity of the sanction
order dated 3/9-‘11-93 (Exh.84). This document is the outcome of the
letter dated 9th August, 1993 sent by Pramod Kumar Jha, DSP (PW-15),
to the Director General of Police for grant of sanction under Section 20-
E A(2) of TADA. The said letter reads thus:
“Exhibit – 82
“No. RB/D/121/1993/1810
THE OFFICE OF DISTRICT SUPREINTENDENT OF POLICE
JAMNAGAR
F DATED 09/08/1993
To,
The Director General of police
And Chief of Police
Gujarat State, Ahmedabad
Subject : With regard to obtaining sanction under section 20A(1) of the
G
TADA under Salaya Police Station Crime I 21/93.

6
1992 Supp. (1) SCC 222
7
(1998) 4 SCC 494
8
(2005) 11 SCC 600
9
H (2017) 13 SCC 685
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 761
[A. M. KHANWILKAR, J.]

With it is hereby stated with regard to the above mentioned subject that, A
The Salaya Police station Crime I 21/93 under section 121, 121A, 122,
34 of the IPC, section 26(1) (AD) (1-AA), 25(1-B) A,B,C,F,G and 27
(1) 29(A) of the Arms act, section 6(1)A of the Wireless Telegraph act,
section 20 of the Telegraph act and section 3, 4 and 5 of the TADA act
is committed on 18/06/1993 at 10/00 hours at Salaya Barlovas Hashmi B
Manzil. As for the crime, the PSI Mr. B. V. Jani, LCB Jamnagar filed
complaint on 18/06/1993 at 13/30 hours against accused Anwar Osman
Vadher Musalman resident of Salaya Barlovas Hashmi Manzil for keeping
in possession weapons unlawfully. The copy of FIR is annexed hereby.
The accused Anwar Osman Vadher resident of Salaya kept in his C
possession unlawfully and without license the 1) Foreign Carbon Stand
gun Magazine worth Rs.2 lacs, 2) Foreign made revolver with eight
cylinders in chamber worth Rs.60 thousand, 3) one foreign made revolver
with six cylinders in chamber having worth Rs. 45 thousand, 4) one
transmitter walky talky set foreign made worth Rs.1 lakh, 5) stand gun
live cartridges nos. 52 nos. worth Rs.1040, 6) Revolver live cartridges D
nos. 4 worth Rs.80/- and therefore he was arrested on 19/00 of 18/06/
1993. He was produced before the honourable court and a remand was
sought, thereby a remand till 01/07/1993 was granted and during the
remand, upon further investigation, it was divulged by him that the
weapons were obtained from 1) Mamummiya Panjumiya resident of E
Porbandar, 2) Junus Ibrahim Gajwa Vadher resident of Salaya, 3) Adam
Jusab Bhaya Vadher resident of Salaya since deceased. Upon
investigating as to the nos. 1 and 2, it was found that they had fled and
thus the further investigation is held so as to arrest these persons. Upon
completion of the remand period of accused Anwar Osman Patel, the
further remand was sought, but it was rejected by the court and thus the F
accused was sent to the court custody. As for the above mentioned
offence, the sanction is received by letter no. VIR/ATK/1993/3717 dated
06/07/1993 from the side of the home department, for the purpose of
application of TADA. Therefore it is submitted that relevant order be
passed for sanction of section 20A(2) of TADA.
G
Sd/- illegible
P K Za
District Superintendent of Police
Jamnagar”

H
762 SUPREME COURT REPORTS [2019] 2 S.C.R.

A 11. On the basis of this communication, Office Note (Exh. 83)
was placed for consideration before A.K. Tandon, DGP (PW-14). The
said Office Note (Exh.83) reads thus:
“Exhibit 83 (Office note)
“Salaya Police station Crime I 21/93 under section 25(A), 25(1)AA B A,
B Customs act section 135 and section 3, 4 and 5 of the TADA act.
From the house possessed and used by the accused Anwar Osman Vadher
Musalman, weapons without any license being Foreign Carbon Stand
gun Magazine worth Rs.2 lacs, Foreign made revolver with eight cylinders
in chamber worth Rs.60 thousand, one foreign made revolver with six
C cylinders in chamber having worth Rs.45 thousand, one transmitter walky
talky set foreign made worth Rs.1 lakh, stand gun live cartridges nos. 52
nos. worth Rs. 1040 and Revolver live cartridges nos. 4 worth Rs. 80/-
and upon investigation from the accused, he stated that, the weapons
were obtained from 1) Mamummiya Panjumiya resident of Porbandar,
2) Junus Ibrahim Gajwa Vadher resident of Salaya, 3) Adam Jusab Bhaya
D Vadher resident of Salaya (since deceased). Upon investigating as to
the nos. 1 and 2, it was found that they had fled and thus the further
investigation for these two persons.
Placed with regards:
It is a request to taken into perusal the order passed by the honourable
E Inspector General of Police at page P-19/NS.
2. In the Salaya police station Crime I 21/93, Jamnagar City B Division
Police station Crime 151/93, Panchnoshi B Division police station
Crime I 57/93 and Bharwad Police Station Crime I 43/93, the S1 to S8
documents are placed on record for signature, in reference to the order
F passed by the Inspector General of Police.
Kindly sign the same.
Orders giving permission for applying TADA as placed at S1 TO S8,
which may please be illegible.
Sd/- -1/11/1993"
G 12. Indeed, P.K. Jha (PW-15) in his evidence has stated that after
sending the letter (Exh. 82), the DGP Mr. A.K. Tandon (PW-14) had
summoned him with papers of the case for discussion. Further, Mr.
Tandon had personally discussed about the case with him. During that
interaction, P.K. Jha had apprised the DGP about the details of the
investigation and other details as to why it was necessary to apply the
H
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 763
[A. M. KHANWILKAR, J.]

provisions of TADA and file the charge-sheet in that regard. Pramod A
Kumar Jha, DSP (PW-15) has been cross-examined by accused Nos.1
& 2. In the cross-examination, he stood by his version that he had gone
to Director General of Police (PW-14) at Padadhari and had also gone
to Ahmedabad but was unable to give the dates and time of the said
meetings. He asserted that he had made notes about the meeting in his
B
records and in his personal diary which is called E-statement. However,
the fact remains that the purported sanction order dated 3/9-11-93
(Exh.84) makes reference only to have taken note of the FIR and the
proposal received from DSP, Jamnagar. We may assume that the two
officers – Pramod Kumar Jha (PW-15) and A.K. Tandon, DGP (PW-
14) had interacted regarding the nature of investigation before issuing C
the purported sanction order dated 3/9-11-93 (Exh.84). Even though
A.K. Tandon, DGP (PW-14) had asserted that he had fully applied his
mind before issuing the purported sanction order under Section 20-A(2)
of TADA, that order, however, is suggestive of a casual approach of
A.K. Tandon, DGP (PW-14). The same reads thus:
D
“ANNEXURE-P/5
Mark 80/5 Exh.84.
No.J.1/1909/1/Salaya/21
93/4327.
Office of DGP and Chief Police
Officer, Gujarat State, Ahmedabad E
3-9/11-93.
Ref:- 1. FIR of Salaya Police Stn. CR No.21/93 u/s. 122 of IP Code and
u/s. 25(1)(A) 25(1AA) 25 (AB,AF) 25(1)(B)(A)(F) of Arms Act and u/
s. 6(1)A of Wireless Telegraph Act and u/s. 20 of Telegraph Act and u/
s. 135 of Customs Act and u/s. 3,4,5 of TADA Act. F
—————
2. Proposal No. DSP, Jamnagar, RB-D-121- Proved in 1993/1810 dtd.
9-8-93 by DSP, Jamnagar.
Deposition of witness No.14
Mark 80/5 be exhibited at exh.84 in spl. case No.3/94.
G
Sd/- Desi. Judge, 4-7-06.
Jamnagar.
After carefully reading and considering the proposal for approval to apply
TADA section vide letter No. RBD/121/ 1993/1810 dtd. 9-8-93 by DSP
Jamnagar and FIR of Jamnagar Dist. Salaya Police Station CR No.21/
H
764 SUPREME COURT REPORTS [2019] 2 S.C.R.

A 93 u/s. 122 of IP Code and u/s. 25(1)(A) of Arms and u/s. 3,4,5 of
TADA act, I A.K. Tandon, DGP and Chief Police Officer Gujarat State,
Ahmedabad do hereby approval/sanctioned to apply TADA act 3,4,5
under amended provisions of amended TADA act 1987 (Amendment
1993) u/s. 20(1)(2).
B Sd/ A.K. Tandon
DGP and Chief Police
Officer, Guj. State,
Ahmedabad.
To,
DSP, Jamnagar Dists. Jamnagar
C
Copy to: Chief Special police officer/Dy. Chief Police Officer, Rajkot
Division, Rajkot, Addl. DGP Shri, CID, Crime and Range Gujarat State,
Ahmedabad.
Sd/ Pramodkumar
Asst. Chief Police Officer, Crime.
D Endorsement for true copy
Copy applied for by Dy.S.P. Khambhalia on 13-4-07
And copy ready on 23-4-07 and copy delivered on
25-5-07.
Sd/ Registrar
E True copy.
Sd/ Registrar.
Dist. & Sessions Court, Jam.
Translated from guj.
Into eng. Version by me.”
F 13. On a fair reading of this document it is evident that the author
of the document A.K. Tandon, DGP (PW-14), adverted only to the FIR
and the proposal received from DSP, Jamnagar. The understanding of
PW-14 was that the proposal received from DSP, Jamnagar (PW-15)
was for granting approval to apply provisions of TADA and the said
G proposal was accepted. The respondents have rightly relied on the dictum
in Gadhvi’s case (supra), where a similar purported sanction under
Section 20-A(2) of TADA issued by the very same officer A.K. Tandon,
DGP (PW-14), in respect of some other TADA case, came up for
consideration. The wording of sanction order considered by this Court is
similar to the one under consideration. In paragraph 9 of the reported
H
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 765
[A. M. KHANWILKAR, J.]

judgment, the said sanction order has been reproduced, which reads A
thus:
“9. In this case the prosecution relies on Ext. 63, an order issued
by the Director General of Police, Ahmedabad, on 3-9-1993, as
the sanction under Section 20-A(2) of TADA. We are reproducing
Ext. 63 below: B
“Sr. No. J-1/1909/1/Khambalia 55/93
Director General of Police, Dated 3-9-1993
Gujarat State,
Ahmedabad.
Perused: (1) FIR in respect of offence Registered No. 55/93 C
at Khambalia Police Station 25(1)(b)(a)(b) of Arms Act and
Sections 3, 4 and 5 of the TADA.
(2) Application sent by DSP Jamnagar vide his letter No. RB/
D/122/1993/1820 dated 9-8-1993.
Having considered the FIR in respect of offence Registered
No. 55/93 at Khambalia Police Station District Jamnagar under D
Section 25(1)(b)(a)(b) of Arms Act and Sections 3, 4 and 5 of
TADA and letter No. RB/D/122/1993/1820 of DSP dated 9-8-
1993 seeking permission to apply the provisions of TADA
carefully, I A.K. Tandon, Director General of Police, Gujarat
State, Ahmedabad under the powers conferred under the E
amended provisions of TADA (1993) Section 20-A(2) give
permission to add Sections 3, 4 and 5 of TADA.
A. K. Tandon
Director General of Police
Ahmedabad
F
Gujarat”
While analyzing the said sanction in paragraph 10, this Court observed
thus:
“10. Apparently Ext. 63 makes reference only to two documents
which alone were available for the Director General of Police to
G
consider whether sanction should be accorded or not. One is the
FIR in this case and the other is the letter sent by the Superintendent
seeking permission or sanction. No doubt in that letter to the
Director General of Police the Superintendent of Police had
narrated the facts of the case. But we may observe that he did
not send any other document relating to the investigation or copy H
766 SUPREME COURT REPORTS [2019] 2 S.C.R.

A thereof along with the application. Nor did the Director General
of Police call for any document for his perusal. All that the DGP
had before him to consider the question of granting sanction to
prosecute were the copy of the FIR and the application containing
some skeleton facts. There is nothing on record to show that the
Director General of Police called the Superintendent of Police at
B
least for a discussion with him.”
And again in paragraphs 14 and 15 of the judgment, this Court observed:
“14. Apart from what we have noticed above, the non-application
of mind by the Director General of Police, Gujarat State, is even
otherwise writ large in this case. A perusal of Ext. 63 (supra)
C shows that the Director General of Police in fact did not grant
any sanction for the prosecution of the appellants. Last part of
the order reads: ‘I A.K. Tandon, Director General of Police,
Gujarat State, Ahmedabad under the powers conferred under the
amended provisions of TADA (1993) Section 20-A(2) give
D permission to add Sections 3, 4 and 5 of TADA.’ Thus, what
the Director General of Police did was to grant permission “to
add Sections 3, 4 and 5 of TADA” and not any sanction to
prosecute the appellants. It is pertinent to note here that the
permission to add Sections 3, 4 and 5 of TADA had been granted
by the Home Secretary, the competent authority, much earlier
E and no such permission was sought for from the Director General
of Police by the DSP. The Designated Court thus, failed to notice
that Ext. 63 was not an order of sanction but an unnecessary
permission of the Director General of Police to add Sections 3, 4
and 5 of TADA. The Director General of Police, apparently, acted
F in a very casual manner and instead of discharging his statutory
obligations under Section 20-A(2) to grant (or not to grant) sanction
for prosecution proceeded to deal with the request of the DSP
contained in his letter dated 9-8-1993, as if it was a letter seeking
permission to apply the provisions of TADA. The exercise
exhibits that the Director General of Police did not even read, let
G alone consider “carefully”, the FIR and the letter of the DSP dated
9-8-1983. We cannot but express our serious concern at this casual
approach of the Director General of Police. On a plain reading of
Ext. 63, therefore, we must hold that it is not an order of sanction
to prosecute the appellants as required by Section 20-A(2) of the
H Act.”
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 767
[A. M. KHANWILKAR, J.]

15. In view of the aforesaid legal and factual position we have no A
doubt that sanction relied on by the prosecution in this case was
not accorded by the Director General of Police in the manner
required by law. Ext. 63 is not the result of a serious consideration
and the document reflects scanty application of the mind of the
sanctioning authority into vital and crucial aspects concerning the
B
matter. It vitiates sanction and hence Ext. 63 cannot be treated as
sanction under Section 20-A(2) of TADA.”
14. The subject sanction (Exh.84) as aforesaid is issued by the
very same officer and presumably prepared on the same date 3.11.93,
but signed and issued on 9th November, 1993. Even in the present case,
reference is only to two documents reckoned by PW-14 before issuing C
the sanction. To wit, the FIR and the letter or proposal sent by the DSP,
Jamnagar. In the evidence, although it is asserted that the DSP (PW-
15) was called for discussion and who, in turn, apprised him of all the
relevant details of the investigation, but that fact is not reflected in any
contemporaneous record. No such record has been produced by the D
prosecution. What is significant is the wording of the subject sanction
(Exh.84). When juxtaposed with the sanction in the reported case (Exh.63
reproduced in paragraph 9 of the said judgment), it is obvious that even
in the present case, what has been noted in Exh.84 is the permission to
apply Sections 3, 4 and 5 of TADA. In paragraphs 14 and 15 of the
reported decision extracted above, this Court opined that such noting E
was itself indicative of the fact that it was not a sanction to prosecute
the accused but at best giving permission to apply the provisions of TADA.
Such a sanction cannot be considered as a valid sanction, much less
issued after due application of mind. We wish to adopt the same logic,
which applies proprio vigore to the fact situation of the present case. F
15. In other words, the purported sanction dated 3/9-11-93 (Exh.84),
granted by PW-14 is not a valid sanction within the meaning of Section
20-A(2) of TADA. It must, therefore, follow that the Designated Court
could not have taken cognizance of the offences punishable under TADA
for want of a valid sanction.
G
16. Reverting to the sanction dated 1st April, 2005 (Exh.57),
concerning accused No.3/respondent No.3, issued under the signature
of A.K. Bhargav (who is not examined) read with the evidence of
Yashodhar Ramchandra Vaidya (PW-10), it may appear that it has been
issued after due consideration of all the relevant material, including police
papers. The evidence of Yashodhar Ramchandra Vaidya (PW-10) H
768 SUPREME COURT REPORTS [2019] 2 S.C.R.

A indicates that a Yadi was received on 27th March, 2005 in the Office of
Director General of Police and Chief Police Officer, where the witness
was working as ASI. The same is dated 11th March, 2005 (Exh.55),
issued under the signature of R.S. Chudasama (PW-13). It read thus:
“EXHIBIT – 55
B OUTWARD NO.RB/741/05
Office of the Deputy Superintendent of police
Khambhaliya Division, dated 11/03/2005
To,
The Inspector General of Police
Gujarat State, Gandhinagar.
C
Subject : Sanction for filing of charge sheet against accused
Umarmiya @Mamumiya s/0 Ismailmiya s/o Ismailmiya Panjumiya
Saiyed Bukhari resident of Porbandar under section 20 (a) (2) of
the Terrorist and Disruptive Activities (Prevention) act 1987.
The deputy superintendent of police, Khambhaliya Mr. R. S.
D Chudasama, hereby submit that,
That investigation of the Salaya Police station Crime I 21/93 under
section 121, 121A, 122, 34 of the IPC, section 26 (1) (AD) (1-
AA), 25 (1-B) A, B, C, F, G and 27 (1) 29 (A) of the Arms act,
section 6 (1) A of the Wireless Telegraph act, section 20 of the
E Telegraph act and section 3, 4 and 5 of the TADA act, is held by
me.
On 18/06/1993 at 13/30 hours at the Salaya Police Station, on
behalf of the state Mr. B. V. Jani police sub inspector LCB Branch,
Jamnagar declared complaint against Anwar Osman
SubhaniyaVagher resident of SalayaHussaini Chowk, Hazmi
F
Manzil and declared that that accused was arrested with the
muddamal of 1) Foreign Carbon Stand gun Magazine worth Rs.2
lacs, 2) Foreign made revolver with eight cylinders in chamber
worth Rs. 60 thousand, 3) one foreign made revolver with six
cylinders in chamber having worth Rs.45 thousand, 4) one
G transmitter walky talky set foreign made worth Rs.1 lakh, 5) stand
gun live cartridges nos. 52 nos. worth Rs.1040, 6) Revolver live
cartridge nos. 4 worth Rs.80/- and the above mentioned crime
was registered in detail.
The above mentioned accused Anwar Osman, during the remand
H showed one transmitter walky talky wireless set worth Rs. 75
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 769
[A. M. KHANWILKAR, J.]

thousand and during the remand he stated that two wireless set A
were purchased by him from accused Umarmiya @Mammumiya
s/o Ismailmiya @PanjumiyaSaiyed Bukhari resident of Porbandar.
In this manner the name of accused Umarmiya was declared for
the crime and this accused thereby remained absconding. As the
accused remained absconding, during the year 1994, the honourable
B
court notified the accused as absconding under section 8(3) of
the TADA act.
This particular accused Umarmiya @Mammumiya s/o Ismailmiya
@PanjumiyaSaiyed Bukhari resident of Probandar, was arrested
for the Porbandar city Kamlabaug B Division police station Crime
I 43/94 under sections 3, 4, 5, etc. of the TADA act on 10/12/2004 C
and he was brought before the Probandar Judicial First Class
magistrate court No.1. In this particular case, the transfer warrant
was issued by the Jamnagar designated court on 14/12/2004, it
was sunmitted before the Porbandar court and the accused was
brought before me after obtaining his custody by the police sub D
inspector Mr. B. V. Pander on 08/02/2005. This particular accused
was arrested as per proceedings in its presence of the panch
witnesses on 08/02/2005 at 23-00 hours. During the hearing, the
accused was brought before the honourable additional sessions
and designated judge Khambhaliya and a remand of days-30 were
sought for the accused and therefore the honourable court E
approved the remand in police custody, of the accused till 11-00
hours of 14/02/2005. During the remand, the accused was inquired
from and he mentioned that, the two Walky Talky set that he gave
to Anwar Osman Subhaniya were taken by him from his brother
Abdullah Osman Subhaniya in the year 1985 for smuggling F
activities. Thereafter he gave both these Walky Talky sets to
Anwar Osman Suhaniya and thereby these details were divulged
during the investigation. Upon investigating as to Abdullah Osman
Subhaniya, it came out during the investigation that, that particular
person does not reside in Salaya and has gone to Abu Dhabhi
(Foreign nation). As for this, the further remand of 15 days was G
sought for the accused but it was rejected by the court and thereby
he was taken under judicial custody.
The evidence found during the investigation against the accused
are hereby marked and provided.
H
770 SUPREME COURT REPORTS [2019] 2 S.C.R.

A M a rk A S a l a ya p o li ce s ta t io n C r im e I 2 1/ 9 3 F IR
M a rk B P a nc h na m a f o r ta k in g i n to cu st o dy t h e
w e a p o n s d a t e d 1 8/ 0 6 / 1 9 93
M a rk C D is cov ery p a n ch n a m a d a te d
2 9/ 0 6 / 1 9 93 fo r W a lk y T a l ky s h o w n b y
t h e a c c u s ed A n w a r O s m a n S u bh a n i ya
d u ri ng th e r e m a n d .
M a rk D T o t a l 2 3 s ta t em e n t s o f th e p o li c e of fi c e r
a n d s ta ff th a t w e re p re s e n t i n t h e
B r a i di n g p a rty .
M a rk E T h e s ta t em e n t of th e a cc u s ed A nw a r
O s m a n S u b h a n iya d a t e d 2 1 / 0 6/ 1 99 3
M a rk F T h e o rd e r p a s s ed fo r a p p li c a t io n o f
T A D A s ec t io n s i n th e S a la y a Cr im e I
2 1/ 9 3
M a rk G T h e l e tt e r m en t io n i n g t h e d et a il s o f c a se
r e gi s te re d ag a in s t t he a c cu s e d
C U m a rm i ya @ M a m m u m iy a s/o
Is m a il m iy a b y Cu sto m s P or ba n d a r fo r
s m u gg li n g si lv e r.
M a rk H The FS L ce rt i fi ca t e i s su e d by
A h m e d a ba d off i c e fo r th e w ea po n s t a k e n
i n to c u s t o dy.
M a rk I T h e c h a rg e s he et n o .1 9 / 9 4 reg ist e re d
a g a in st t h e a c c u s ed A n w a r O s m a n
S u b h an iya on 1 8/ 0 6 / 1 9 9 4 a n d t h e
D c o p y of t he c h a rge s h e e t w h e re i n t h e
a c c u se d M a m m u m iy a Pa n j u m i ya S a i ye d
i s sh o w n a s a bs c on d in g u n d e r c o l u m n
n o . 2.
M a rk J T h e l et te r u n d e r rep or t n o. 4 / 9 3 u n d e r
s e cti o n 8( 3) (A ) o f TA D A a c t a ga i n st t h e
a c c u se d M a m m u m i ya P a n j u m i ya .
M a rk K The p a p ers w h ere i n th e a c cu s e d
E M a m m u m i ya Pa n j u m iya w a s de c la re d
a b s co n d i ng .
M a rk L The t ra n s fe r w a rr a n t of a c cu s e d
M a m m u m i ya P a n j u m i ya .
M a rk M The p hy s i c a l si tu at i on p a n ch n a m a
d a te d 0 8 / 02 / 05 a t t h e ti m e o f a rre st o f
a c c u se d M a m m u m i ya P a n j u m i ya .
M a rk N F ace m a rk reg ist er fo r a c cu s e d
F M a m m u m i ya P a n j u m i ya .
M a rk O T h e e x p la n a ti o n d a te d 0 8 / 0 2 / 20 0 5 to
1 4/ 0 2 / 2 0 05 b y a cc u s ed M a m m u m i ya
P a nj u m i ya .
M a rk P The f u rt he r s t a te m e n t d a t ed 1 1-
1 2/ 0 2 / 2 0 05 b y a c c u se d A n w a r O s m a n
S u b h an iya .
M a rk Q The f u rt he r s t a te m e n t d a t ed 1 1-
1 2/ 0 2 / 2 0 05 b y a c c u s ed J u n u s Ib ra h i m
G G a ja n .
M a rk R T h e co p y of co u r t o rd e r fo r a p p l ica t io n
n o . 88 / 0 5 fi led f o r d a y s - 3 0 re m a n d
a g a in st the a c c u s ed M a m m u m i ya
P a nj u m i ya .
M a rk T h e co p y of co u r t o rd e r fo r a p p l ica t io n
S n o . 96 / 0 5 fi led f o r d a y s - 1 5 re m a n d
a g a in st the a c c u s ed M a m m u m i ya
H P a nj u m i ya .
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 771
[A. M. KHANWILKAR, J.]

In this manner, as for the purpose of filing a charge sheet under A
Section 20(A) (2) of the TADA act against the accused Saiyed
Bukhari aged 50 years, resident of Porbandar Thakkar Plot, Sheri
no.1, Jamadar Fadi, the sanction is required and thus it is hereby
submitted that the above mentioned documents be taken into
perusal and the sanction be provided for filing a charge sheet
B
against the accused under section 20(A)(2) of the TADA act.
Kindly consider the above.
Sd/- illegible
(R S Chudasama)
Deputy Superintendent of Police
Khambhaliya Division C
Sent with regards,
Superintendent of Police, Jamnagar.”
17. This was followed by a communication sent under the signature
of Manoj Shashidhar, Superintendent of Police, Jamnagar (not examined)
dated 15th March, 2005 (Exh.56). It read thus: D
“EXHIBIT – 56
“OUTWARD NO. RB/illegible 4/2005
Office of the Superintendent of police
Jamnagar, dated 15/03/2005
To, E
The Inspector General of Police
Gujarat State, Gandhinagar.
Subject : Sanction for filing of charge sheet against accused
Umarmiya @Mamumiya s/o Ismailmiya s/o Ismilmiya Panjumiya
Saiyed Bukhari resident of Probandar under section 20(a)(2) of F
the Terrorist and Disruptive Activities (Prevention) act 1987, so
as to held further proceedings against him before the honourable
court.
Reference: The Deputy superintendent of police, Khambhaliya
division letter No.RB/741/05 dated 11/03/2005.
G
The investigation of the Salaya Police station Crime I 21/93 under
section 121, 121A, 122, 34 of the IPC, section 26(1) (AD) (1-
AA), 25 (1-B) A, B, C, F, G and 27 (1) 29(A) of the Arms act,
section 6 (1) A of the Wireless Telegraph act, section 20 of the
Telegraph act and section 3, 4 and 5 of the TADA act, is held by
deputy superintendent of police, Khambhaliya Mr. R.S. H
Chudasama.
772 SUPREME COURT REPORTS [2019] 2 S.C.R.

A On 18/06/1993 at 13/30 hours at the Salaya Police Station, on
behalf of the state Mr. B. V. Jani police sub inspector LCB Branch,
Jamnagar declared complaint against Anwar Osman Subhaniya
Vagher resident of Salaya Hussaini Chowk, Hazmi Manzil and
declared that the accused was arrested with the muddamal of 1)
Foreign Carbon Stand gun Magazine worth Rs. 2 lacs, 2) Foreign
B
made revolver with eight cylinders in chamber worth Rs.60
thousand, 3) one foreign made revolver with six cylinders in
chamber having worth Rs. 45 thousand, 4) one transmitter walky
talky set foreign made worth Rs.1 lakh, 5) stand gun live cartridges
nos. 52 nos. worth Rs. 1040, 6) Revolver live cartridges nos. 4
C worth Rs. 80/- and the above mentioned crime was registered in
detail.
The above mentioned accused Anwar Osman, during the remand
showed one transmitter walky talky wireless set worth Rs.75
thousand and during the remand he stated that two wireless set
D were purchased by him from accused Umarmiya @Mammumiya
s/o Ismailmiya @Panjumiya Saiyed Bukhari resident of Probandar.
In this manner the name of accused Umarmiya @ Mammumiya
s/o Ismailmiya @Panjumiya Saiyed Bukhari resident of Porbandar
was declared for the crime and this accused thereby remained
absconding. As the accused remained absconding, during the year
E 1994, the honourable court notified the accused as absconding
under section 8(3) of the TADA act.
The particular accused Umarmiya @ Mammumiya s/o Ismailmiya
@ Panjumiya Saiyed Bukhari resident of Porbandar, was arrested
for the Probandar city Kamlabaug B Division police station Crime
F I 43/94 under Sections 3, 4, 5, etc. of the TADA act on 10/12/
2004 and he was brought before the Probandar Judicial First Class
magistrate court no.1. In this particular case, the transfer warrant
was issued by the Jamnagar designated court on 14/12/2004, it
was submitted before the Porbandar court. The accused Umarmiya
@Mammumiya s/o Ismailmiya @Panjumiya Saiyed Bukhari
G resident of Porbandar was brought before superintendent of police,
Khambhaliya division Mr. R.S. Chudasama after obtaining his
custody by the police sub inspector Mr. B.V. Pander on 08/02/
2005. This particular accused was arrested as per proceedings in
the presence of the panch witnesses on 08/02/2005 at 23-00 hours.
H
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 773
[A. M. KHANWILKAR, J.]

During the hearing, the accused was brought before the honourable A
additional sessions and designated judge Khambhaliya and a
remand of days-30 were sought for the accused and therefore
the honourable court approved the remand in police custody, of
the accused till 11-00 hours of 14/02/2005. During the remand,
the accused was inquired from and he mentioned that, the two
B
Walky Talky set that he gave to Anwar Osman Subhaniya were
taken by him from his brother Abdullah Osman Subhaniya in the
year 1985 for smuggling activities. Thereafter he gave both these
Walky Talky sets to Anwar Osman Suhaniya during 1989/90 and
thereby these details were divulged during the investigation. Upon
investigating as to Abdullah Osman Subhaniya, it came out during C
the investigation that, that particular person does not reside in
Salaya and has gone to Abu Dhabhi (Foreign nation). As for this,
the further remand of 15 days were sought for the accused
Umarmiya @Mammumiya s/o Ismailmiya @Panjumiya Saiyed
Bukhari resident of Probandar but it was rejected by the court
D
and thereby he was taken under judicial custody. The evidence
found during the investigation against the accused are hereby
provided as marked along with the letter submitted.
In this manner, as for the purpose of filing a charge sheet under
section 20(A) (2) of the TADA act against the accused Umarmiya
@Mammumiya s/o Ismailmiya @Panjumiya Saiyed Bukhari aged E
50 years, resident of Porbandar Thakkar Plot, Sheri no.1, Jamadar
Fadi, it is requested that a sanction be provided.
Kindly consider the above.
Annexed:
The documents placed on record along with the letter. F

Sd/- illegible
(Manoj Shashidhar)
Superintendent of Police
Jamnagar G
Copy sent:
Deputy Superintendent of police
Khambhaliya Division, Khambhaliya”

H
774 SUPREME COURT REPORTS [2019] 2 S.C.R.

A 18. The purported sanction dated 1st April, 2005 (Exh.57) was
finally issued under the signature of A.K. Bhargav, IGP (not examined).
The stated sanction reads thus:
“Exh.57.
Mark 13/18
B
No. G-1(Crime/T-1/TADA chargesheet/approval/1239/2005
Office of DIG and Chief Police officer
Gujarat State Police Bhavan, Sector 18 Gandhinagar.. proved in
deposition of Yashodhar Ramchandra in sessions case No.3/94
mark 13/8 is given exhi. in deposition of witness No.10.
C Sd/ Designated Judge, Jamnagar.
Ref:- 1. Regarding giving of approval for chargesheet u/s. 20(A)(2)
of TADA act against accused Umarmiya Aliyas Mamumiya S/o
Ismailmiya Alias Panjumiya Bukshari resi. of Porbander for
offence u/s. 121, 121(A), 122, 34 of IPC and u/s. 1(AD) (1 AA)
D 25(1B), ABCFG and 27(1), 29(A) of Arms act and u/s. 1 of Wire-
less Telegraphic act and u/s. 20 of Telegraph act and u/s. 3,4,5 of
TADA act who was arrested on Salaya CR No. 21/93.
2. Proposal for giving sanctioned for chargesheet under TADA
act letter No. RBR/1014/2005 dtd. 15-3-05 of DSP, Jamnagar.
E ———
After carefully considering and going through the proposal for
giving approval for chargesheet under the TADA act of the papers
and the letter No.RBR/1014/2005 dtd. 15-3-05 of DSP, Jamnagar
and going through the FIR filed against accused Umarmiya
F Mamumiya S/o. Ismailmiya alias Panjumiya Bukhari of Porbander
who is arrested for the offence u/s. 121, 121 A, 122, 34 of IPC
and u/s. (1) (AD) (1AA) 25(1B) A,B,C,F,G and 27(1), 29(A) of
Arms and u/s. (1) A of Wireless telegraphic act and u/s. 20 of
Telegraph acts and under sec. 3,4,5 of TADA act in Salaya Police
station 21/93 Dist. , Jamnagar I A.K. Bhargav IG and Chief
G Police officer Gujarat State Gandhinagar do hereby grant approval/
sanctioned under the provisions of TADA Act 1980 sec. 20(A)
(2) Amended 1993 for filing chargesheet against Umarmiya alias
Mamumiya S/o. Ismailmiya Alias Panjumiya Bukhari of Porbander
in CR No.21/39 u/s. 20(A) (2) of TADA act.
H
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 775
[A. M. KHANWILKAR, J.]

Sd/ A.K. Bhargav A
IGP
and Chief Police officer
Gujarat State Gandhinagar.
Inward No. 14237 office
of DSP, Jamnagar.
B
RB
To IO and SDPO KBL
for N/A.
Sd/- Illegible
15-4-05"
19. On a bare perusal of Exh.57, there is nothing to indicate as to C
whether the sanctioning authority was conscious of the materials gathered
during investigation qua the concerned accused (respondent No.3), which
merely suggested possession and recovery of two walky-talkies from
him. If that is the only incriminatory material against accused No.3/
respondent No.3, the sanctioning authority ought to have pondered over D
the crucial aspects including as to how such possession would entail in
commission of any offence muchless punishable under Sections 4 or 5
of TADA. Further, section 3 of TADA posits different offences, namely,
terrorist acts [Section 3(2)], being party to conspiracy or abetment or
knowingly facilitating the commission of terrorist acts [Section 3(3)],
harbouring or concealing any terrorist [Section 3(4)], being member of E
a terrorist gang or terrorist organization, which is involved in terrorist
acts [Section 3(5)], and to hold any property derived or obtained from
commission of any terrorist act [Section 3(6)]. The sanctioning authority
was under a bounden duty to accord sanction, specific to offences, from
amongst the different offences under sub-sections (1) to (6) of Section F
3 of TADA. Similarly, we are at a loss to know as to how Sections 4 &
5 of TADA would apply to a case of mere possession of walky-talkies.
Section 4 refers to disruptive activities whereas Section 5 refers to
possession of unauthorized classified arms and ammunition. A walky-
talky is certainly not one of those classified arms and ammunition. In our
opinion, the purported sanction vide Exh.57 also suffers from the vice of G
non-application of mind, on this count alone.
20. The necessity of obtaining prior sanction under Section 20-
A(2) need not be underscored considering the draconian provisions of
TADA. In our opinion, therefore, even sanction qua accused No.3/
respondent No.3 dated 1st April, 2005 (Exh.57) does not stand the test of H
776 SUPREME COURT REPORTS [2019] 2 S.C.R.

A a valid sanction to prosecute him for offences punishable under TADA.
Indeed, the prosecution has relied on the evidence of PW-10 and PW-
13. That, in our opinion, at best, would suggest that all the relevant papers
gathered during the investigation were placed for consideration before
the sanctioning authority. The fact remains that Exh.57 issued under the
signature of A.K. Bhargav, IGP, makes no attempt to even remotely
B
indicate as to why sanction to prosecution for offences punishable under
Sections 3, 4 or 5 of TADA has been accorded qua accused No.3/
respondent No.3 merely on the basis of possession and recovery of two
walky-talkies from him. Further, he has not been examined by the
prosecution which also could have thrown light on that crucial aspect.
C Therefore, we have no hesitation in concluding that the sanction dated
1st April, 2005 (Exh.57), is not a valid sanction qua accused No.3/
respondent No.3.
21. We are conscious of the fact that the Designated Court did
not frame any issue regarding validity of prior approval under Section
D 20-A(1) or prior sanction under Section 20-A(2). As the question of
prior approval or prior sanction goes to the root of the matter and is sine
qua non for a valid prosecution concerning TADA offences and including
the jurisdiction of the Designated Court, no fault can be found with the
Designated Court for having answered that issue at the outset.
22. The next question is whether the Designated Court could have
E had convicted the respondents for offences punishable under other
enactments (other than TADA). Even though the Designated Court, in
paragraph 17 of the impugned judgment, took note of the fact that the
learned APP had not alternatively argued this point, it went on to analyse
the efficacy of the evidence on record in reference to offences under
F other enactments namely, IPC, Arms Act, Indian Telegraph Act, Indian
Wireless and Telegraphy Act. It noted that the fulcrum of the prosecution
case was founded on the confessional statement of the accused, which
came to be recorded under the provisions of TADA. It took the view
that since the accused cannot be proceeded for TADA offences for
lack of a valid sanction, that confessional statement will be of no avail
G and cannot be looked at in reference to charges for offences under
other enactments (not being admissible) muchless to record a finding of
guilt against the accused for offences under the other enactments. It
also found that the evidence regarding search and recovery was replete
with fatal deficiencies and was insufficient to establish the complicity of
H the respondents in the commission of offences under the other enactments.
THE STATE OF GUJARAT v. ANWAR OSMAN SUMBHANIYA 777
[A. M. KHANWILKAR, J.]

Thus, it held that the accused deserved to be acquitted. However, relying A
on the observations in paragraphs 17 and 18 of Gadhvi’s case (supra),
it erroneously opined that the Designated Court had no independent power
to try any other offence, as valid sanction under Section 20-A (2) was
not in place.
23. We may hasten to observe that it is now well settled that the B
Designated Court, besides trying the case under TADA, can also try
any other offence with which the accused may be charged at the same
trial if the offences are connected with offences under TADA. For,
implicit power has been bestowed upon the Designated Court to convict
the accused for offences under other enactments if there is legally
admissible evidence to establish those charges. We may usefully refer C
to the dictum in paragraph 37 of the Constitution Bench judgment in
Prakash Kumar alias Prakash Bhutto (supra), which reads thus:
“37. The legislative intendment underlying Sections 12(1) and (2)
is clearly discernible, to empower the Designated Court to try and
convict the accused for offences committed under any other law D
along with offences committed under the Act, if the offence is
connected with such other offence. The language “if the offence
is connected with such other offence” employed in Section 12(1)
of the Act has great significance. The necessary corollary is
that once the other offence is connected with the offence
under TADA and if the accused is charged under the Code E
and tried together in the same trial, the Designated Court
is empowered to convict the accused for the offence under
any other law, notwithstanding the fact that no offence under
TADA is made out. This could be the only intendment of the
legislature. To hold otherwise, would amount to rewrite or recast F
legislation and read something into it which is not there.”
(emphasis supplied)
This exposition has been applied by a Two Judge Bench in a recent
decision in Ashrafkhan alias Babu Munnekhan Pathan & Anr. Vs.
State of Gujarat10, as is evident from paragraph 41, which reads thus: G
“41. We have held the conviction of the accused to have
been vitiated on account of non-compliance with Section
20-A(1) of TADA and thus, it may be permissible in law to
maintain the conviction under the Arms Act and the
10
(2012) 11 SCC 606 H
778 SUPREME COURT REPORTS [2019] 2 S.C.R.

A Explosive Substances Act but that shall only be possible
when there are legally admissible evidence to establish
those charges. The Designated Court has only relied on the
confessions recorded under TADA to convict the accused for
offences under the Arms Act and the Explosive Substances Act.
In view of our finding that their conviction is vitiated on
B
account of non-compliance of the mandatory requirement
of prior approval under Section 20-A(1) of TADA, the
confessions recorded cannot be looked into to establish
the guilt under the aforesaid Acts. Hence, the conviction of
the accused under Sections 7 and 25(1-A) of the Arms Act and
C Sections 4, 5 and 6 of the Explosive Substances Act cannot also
be allowed to stand.”
(emphasis supplied)
24. Even in the present case, it is noticed that the prosecution has
essentially relied upon the confessional statement of the accused recorded
D under the provisions of TADA. That will be of no avail and certainly not
admissible against the accused in the trial for offences under other
enactments, especially when the Designated Court could not have taken
cognizance of the offence under TADA for lack of a valid sanction.
Additionally, in the present case, the evidence produced by the prosecution
regarding search and seizure is replete with fatal deficiencies. We do
E not wish to deviate from the view taken by the Designated Court that
there was no legally admissible evidence to establish the charges against
the respondents regarding offences under other enactments (other than
TADA).
25. Having said this, it must follow that the conclusion reached by
F the Designated Court, that the respondents are not guilty of the offences
for which they were charged and tried, needs no interference for the
reasons mentioned hitherto.
26. In view of the above, the appeals must fail and are dismissed.

G Devika Gujral Appeals dismissed.

H