THE STATE OF GUJARATversusGADHVI RAMBHAI NATHABHAI AND ORS. ETC.

                       THE STATE OF GUJARAT                                       A
                                 v.
              GADHVI RAMBHAI NATHABHAI AND ORS. ETC.

                                   JUNE 20, 1994

                       [P.B. SAWANT AND N.P. SINGH, JJ.)                          B

           Terrorist and Disruptive Activities (Prevention) Act, 1987:

           Sections 5 and 21}-Prosecution under TADA-Bail-Grant of-Desig-
     nated Cowt to find out whether there· are reasonable grounds for believing C
     that accused persons were guilty of an offence under TADA-Not to exercise
     power of Trial Court-Not to weigh materials collected during investiga-
     tion-Granting bail otherwise would amount to acquittal even before the con-
     clusion of investigation.

           According to the prosecution on receipt of information that accused- D
     respondents had smuggled arms and ammunitions, a police raid was
     conducted at the residential premises of the accused-respondents and
     large quantities of arms and ammunitions of foreign origin were recovered.
     Huge amount of cash to an extent of more than 2 crores was also recovered.
     It was alleged that the accused-respondents were the main landing agents E
     of smugglers controlling the activities from Dubai. They were charged
     under various provisions of the Arms Act, TADA Act and Section 135 of
     the Customs Act.

            The accused-respondents were released on bail by the designated
     Court, against which the State preferred the present appeal by. special      F
     leave.

           Appellant-State contended that the accused-respondents were freely

J•
     distributing arms, ammunitions and explosives on a very large scale in
     States of Punjab, Assam and Kashmir.                                         G
          Allowing the appeals, and setting aside the order granting bail, this
     Court

          HELD : 1. Instead of finding out as to whether there were reasonable
     grounds for believing that the accused persons were not guilty of an offence H
                                         163
    164                   SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.

A under the TADA Act, the Designated Court has virtually purported to
    acquit the accused-respondents of the charges levelled in respect of con·
    travention of Sections 3, 4 and 5 of the TADA Act. While exercising the
    power to grant bail, the Designated Court is not expected to exercise the
    power of the Trial Court and record a finding which is expected to be
    recorded at the conclusion of the trial. [167-E-F-GJ
B
          2. It is true that for the purpose of grant of bail, the framers of the
    TADA Act require the Designated Court to be satisfied that there were
    reasonable grounds for believing that the accused concerned was not guilty
    of such offence but this power cannot be exercised for grant of bail in a
C   manner which amounts virtually to an order of acquittal, giving benefit of
    doubt to the accused person after weighing the evidence collected during
    the investigation or produced before the Court. At that stage the Desig·
    nated Court is expected to apply its mind as to whether accepting the
    allegations made on behalf of the prosecution on their face, there are
    reasonable grounds for believing that the accused concerned was not
D   guilty of the offence. The Designated Court is not required to weigh the
    material collected during the investigation. [167-H; 168-A-B-C)

          3.1. It will not be proper for this Court to express opinion on the
    merits of the case while considering the question as to whether the Desig·
E   nated Court was justified in coming to the conclusion that there were no
    reasonable grounds for believing that the accused-respondents were guilty
    of any of. the offences under the Act because that is bound to prejudice the
    parties. [168-D-E)

          3.2 The Designated Court should not have directed release of the
F accused-respondents on bail. [168-E-F)
          CRIMINAL APPELLATE JURISDICTION                     Criminal Appeal
    Nos. 357-358 of 1994.

          From the Judgment and Order dated 4.9.93 of Sessions Judge desig-
G nated Court, Jamnagar (Gujarat) in Crimiqal Misc. (Bail) Application No.
    583 of 1993.

         Altaf Ahmad, Additional Solicitor General, Ms. MeenaJcshi Arora,           •
    Anip Sachthey and Nigam Shukla for the appellant.

H         Ram Jethmalani, Uday Kumar Sagar, P.H. Parekh, S. Fazal and
       STATE OF GUJARAT v. G.R.NATHABHAI[N.P.SINGH,J.]                   165

Rajesh Kumar for the Respondents.                                               A

      The Judgment of the Court was delivered by

      N.P. SINGH, J. Leave granted.

      These appeals have been filed on behalf of the State of Gujarat           B
against orders passed by the Designated Court under the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as
'TADA Act') directing release of the Respondents Gadhvi Rambhai
Nathabhai, Karu Rambhai Gadhvi, Hitesh Vajshi Pindariya, Nagshibhai
Nathbhai, Hamir Sajan Ahir, Ranmal Bogha Ahir, Bhimshi Lakhman and
Ibrahim Hasan Vagher, on bail. The said respondents are alleged to have
                                                                                c
committed offences punishable under Sections 25(1) (a)(b), 25(1-A), 25(1-
AA), 25(1-AAA), 25(1- B) of the Arms Act, Sections 3, 4 and 5 of the
TADA Act and Section 135 of the Customs Act.

       It is the case of the prosecution that on receipt of an information on   D
19.6.1993, that accused-respondents Gadhvi Ramhbai Nathabhai and
Hitesh Vajshi Pindariya had stored smuggled arms and ammunitions in
their residential premises, situated at Harsidhdhinagar of Khambhai town,
the District Superintendent of Police along with the Sub-Divisional
Magistrate, two Deputy Superintendents of Police and other officials,
raided the residential houseof the aforesaid accused persons. During the        E
search, Sub-Machine Gun made in Spain, several foreign made Revolvers
and Pistols and cash amounting to Rs. 1,07,00,000 (Rupees One crore and
seven lakhs) were recovered from accused-respondent Gadhvi Rarnhbai
Nathabhai. Several foreign made arms, huge quantity of cartridge.s and Rs.
1,07,67,000 (Rupees One crore seven lakhs and sixty-seven thousand) were        F
also recovered from accused-respondent Nagshibhai Nathabhai. It is also
the case of the prosecution that from a Jeep Car near the farm house of
accused Hamir Sajan Ahir, a gunny bag was recovered in which there were
two A.K.56 Rifles, one Tomy Gun, two Pistols, two empty magazines of
AK. 56 Rifles, two big Walky Talky sets, a small Transmiter, 98 cartridges
of twelve bore, 191 cartridges of A.K.56 Rifles, 35 cartridges of Revolver.     G
Similarly, from other accused persons several foreign made pistols and
arms are alleged to have been recovered. It is alleged that the accused-
respondents are working as main landing agents of notorious smugglers
and the prime accused Haji Haji Ismail who is controlling the activities
from Dubai. In the special leave petitions filed before this Court, it has      H
    166                   SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A been stated on behalf of the State that contraband articles like arms,
    ammunitions and explosives were being freely distributed in the troubled
    parts of the country like Punjab, Assam and Kashmir on a very large scale.

          The Designated Court after referring to the case of the prosecution
    and recovery of arms and ammunitions from the different accused persons
B   observed in the impugned order : -

              •.. "The accused prima facie, seem to have been involved in illegal
            import or otherwise possession of arms and ammunitions and the
            charge is difficult to be dislodged in view of the disclosure from
c           the papers of investigation. However, there is a strong controversy
            regarding the applicability or otherwise and attraction of various
            provisions of the TADA Act."

            Thereafter, it has said :

D           . "It is true that the accused are or were found to be in possession
            of Arms and ammunitions without permit or licence but there is
            nothing on record even to remotely connect them and prima facie
            establish that any of them had intended to over-awe the Govern-
            ment by law established or to strike terror in the people or any
            section of the people or to alienate any section of the people or
E           to adversely affect the harmony amongst different sections of the
            people or did any act or thing by using barns, Dynamite or other
            explosive substance or committed or conspired or attempted to
            commit or abetted to commit activities as mentioned in S.3 and 4
            of the TADA Act... ... The Accused are simply the persons who
F           had been lastly found in possession of such arms and ammunitions.
            The learned P.P. Mr. H.O. Bhatt tried to establish the connection
            with the recent Bombay Bomb Blast without any material on record
            and it would be too early to involve any person in the recent event
            of the country without probable nexus .... "

G         In respect of the applicability of Section 5 of the TADA Act, the
    Designated Court was of the view that it necessary to find out whether any
    material is available with the Investigating Officer to prima facie sugg~st
    that the possession of the unauthorised arms in any notified area was for
    indulging in terrorist acts or disruptive activities as set out in Sections 3
H   and 4 of the Act and in the absence thereof, the person need not be
       STATE OF GUJARAT v. G.R. NATHABHAI [N.P. SINGH. J.]               167

prosecuted under Section 5 of the TADA Acl but only in accordance with          A
the provisions of the ordinary law.

      Sub-sections (8) and (9) of Section 20 of the TADA Act are as
follows :-

           "20(8). - Notwithstanding anything contained in lhe Cude, nu         B
        person accused of an offence punishable under this Act or any
        rule made thereunder shall, if in custody, be released on bail or
        on his own bond unless -

             (a) the Public Prosecutor has been given an opportunity to
             oppose the application for such release, and                       c
             (b) where the Public Prosecutor opposes the application, the
             court is satisfied that there are reasonable grounds for believ-
             ing that he is not guilty of such offence and that he is not
             likely to commit any offence while on bail.
                                                                                D
        (9) The limitations on granting of bail specified in sub-section (8)
        are in addition to the limitations under the Code or any other law
        for the time being in force on granting of bail."

       From the impugned order, it appears that the Designated Court was E
conscious of the limitation prescribed on its power of granting bail by
sub-section (8). But it appears that instead of finding out as to whether
there were reasonable ground for believing that the accused persons were
not guilty of an offence under the TADA Act, the Designated Court has
virtually purported to acquit the accused-respondents of the charges
levelled in respect of contravention of Sections 3, 4 and 5 of the TADA F
Act. It need not be impressed that while exercising the power to grant bail,
the designated Court is not expected to exercise the power of the Trial
Court and to record a finding which is expected to be recorded at the
conclusion of the trial. The Designated Court has not only weighed the
materials collected during the investigation but has also examined the G
submissions made on behalf of the accused persons in the light of several
judgments of the High Court and this Court for the purpose of coming to
the conclusion that no case for contravention of any provisions of the Act
has been made out.

     It is true that for the purpose of grant of bail, the framers of the Act   H
              ''
    168                  SUPREME COURT REPORTS (1994J SUPP. 1 S.C.R.

A require the designated Court to be satisfied that there were reasonable
  grounds for believing that the accused concerned was not guilty of such
  offence but this power cannot be exercised for grant of bail in a manner
  which amounts virtually to an order of acquittal, giving benefit of doubt to
  the accuseii person after weighing the evidence collected during the inves-
  tigation or produced before the Court. At that stage the Designated Court
B is expected to apply its mind as to whether accepting the allegations made
  on behalf of the prosecution on their face, there are reasonable grounds
  for believing that the accused concerned was not guilty of the offence. At
  that stage the Designated Court is not required to weigh the material
  collected during the investigation. The Designated Court itself while deal-
C ing with the submission of the counsel for the State regarding the involve-
  ment of the accused persons in Bombay Bomb Blast has observed : "...... It
  would be too early to involve any person in the recent event of the country
  without probable nexus". Still while examining as to whether there
  reasonable grounds for believing that the accused were not guilty of such
D offence, the Designated Court has passed an order of acquittal even before
  conclusion of the investigation.

           It will not be proper for this Court to express opinion on the merit
    of the case while considering the question as to whether the Designated
    Court was justified in coming to the conclusion that there were no
E   reasonable grounds for believing that the accused-respondents were guilty
    of any of the offences under the said Act because that is bound to prejudice
    the parties. But we are satisfied that the Designated Court should not have
    directed ·release of the accused-respondents on bail. Accordingly, the
    orders granting bail to the accused-respondents in the two bail applications
    filed on their behalf are set aside and their bail bonds are cancelled.
F
            It may be mentioned that pursuant to the order passed by this Court,
    Respondents Nos. 2 to 4 in Special Leave Petition No. 457 of 1994 have
    already surrendered. So far as Respondent No. 1, Gadhvi Rambhai
    Nathabhai, is concerned, we were informed that he was in custody under
G   the Conservation of Foreign Exchange and Prevention of Smuggling Ac-
    tivities Act (COFEPOSA). Because of it neither non-bailable warrant or
    arrest was issued against him nor was he directed to surrender. But in view
    of the fact that the order granting him bail by the Designated Court has
    been set aside, the Designated Court shall pass an order directing him to
H   be taken i_nto custody in connection with this case as well.
          STATE OF GUJARAT v. G.R. NATHABHAI [N.P. SINGH, J.]         169

        By order dated 11.3.1994, accused Respondent No. 2 Karn Rambhai A
 Oadhvi, Who had been taken into custody, was directed to be released on
 parole because it was stated on his behalf that he had to appear for his
 Xllth Standard Examination commencing from 29.3.1994. It was further
 directed that the said order will remain in force till further orders of this
 Court. In view of the fact that the order of the Designated court directing B
 release of the said accused Karn Rambhai Oadhvi has been set aside and
 his bail bond has also been cancelled, he shall surrender within two weeks
 from today failing which all steps shall be taken to take him into custody.
 The investigation if not concluded, shall be concluded as early as possible
 and if chargesheet is submitted against the accused-respondents or against
 any one of them, the Designated Court shall proceed with trial and C
 conclude the same within six months.

         The appeals are allowed· accordingly.

. O.N.                                                  Appeals allowed.