Whether the accused are entitled for discharge due to noncompliance of Section 20­A(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as ‘TADA Act”) ?. As pointed out by us above, the situation may be different where, to give an example, the police official finds a dead body, sees that a murder has taken place, apprehends a person, who is running away after committing the murder and from that person a prohibited arm is recovered in a notified area. In such a situation, the main offence is the offence of murder and the offence of carrying a prohibited weapon in a notified area is the secondary offence under TADA Act. Here, the police official can record the information and arrest the person for committing an offence under Indian Penal Code,1860 but before proceeding under TADA Act he will have to take sanction under Section 20­ A(1) of TADA Act. In view of the above, the appeal is allowed, the order of the Designated TADA Court is set aside and the appellants are discharged from the offences under TADA Act but they may be proceeded against under other provisions of law.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 1692 OF 2009
EBHA ARJUN JADEJA & ORS. …APPELLANT(S)
Versus
THE STATE OF GUJARAT …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.

  1. This appeal by the accused is directed against the order
    passed by the Designated TADA Court whereby the application
    filed by the accused that they should be discharged due to noncompliance of Section 20­A(1) of the Terrorist and Disruptive
    Activities (Prevention) Act, 1987 (hereinafter referred to as ‘TADA
    Act”) was dismissed.
  2. Briefly stated the facts of the case are that appellant no.
    1/accused no. 1, Ebha Arjun Jadeja, was wanted in Crime No. II1
    3/1994 registered against him under Section 25(1B)(a) and 27 of
    the Arms Act, 1959 and under Section 3 and 5 of TADA Act etc.
  3. The prosecution version is that on 10.04.1995, when Police
    Inspector C.J. Singh along with some other police personnel was
    doing night round in Kutiyana and was trying to keep a secret
    watch over bootleggers, he received some information that
    appellant no. 1, who was absconding in Crime No. II­3/1994, was
    coming to his village in a motor vehicle. The police inspector
    arranged two witnesses and after preparing preliminary
    panchnama, left Kutiyana in a Government jeep at about 1.00­
    1.15 a.m. They set up a naka and at about 2.45 a.m., one motor
    vehicle came from the side of village Garej. The vehicle was
    asked to stop and it stopped. Accused no. 1 was found sitting on
    the driver’s seat. The police cordoned the motor vehicle in which
    two other persons (appellant nos.2 and 3) were also sitting. All
    these three persons were asked to get down and disclose their
    identities. On making personal search of these three persons,
    following recoveries were made:
    2
    S.
    No.
    Name of the accused Recoveries
  4. Ebha Arjun Jadeja 1. One foreign made 9mm
    beretta pistol and three live
    cartridges and one fired
    cartridge, valued at
    Rs.1,50,150/­.
  5. One 32 bore foreign made
    revolver and 5 live
    cartridges, valued at Rs.
    50,250/­.
  6. One fired cartridge
  7. Bachchu Bhikha Mer One 315 bore country made
    tamancha, valued at Rs. 3,000/­.
  8. Keshu Chana Mer One 12 bore country made
    tamancha, valued at Rs. 2,000/­.
  9. The three accused persons could not produce any licence
    and the aforesaid arms were seized. Though the first information
    report (FIR) was recorded under the Arms Act, in the very same
    FIR, the officer also recorded as follows:
    “One 9 MM semi automatic prohibited foreign made pistol
    and its cartridges loaded in it and Japan made revolver
    and its cartridges in a loaded condition were found from
    Mer Ebha Arjan. Out of which, it becomes from the smell
    coming from the barrel of the pistol and box that the
    same is used before some time for firing. From the two
    persons with Jadeja Ebha Arjan, namely, Mer Bachu
    Bhima and Mer Keshu Chana also, two country made
    tamanchas are found and Mer Ebha Arjan is a gang
    3
    leader of gundas in Porbandar area and in that
    circumstances, the persons as above are found in an
    Ambassador car no.GJ­M­8905 and it appears that they
    are going to commit any terrorist activity and so all the
    three persons were legally arrested for the offence under
    Sections 25(1)(Ba), 27 of the Arms Act and Section 135 of
    the Bombay Police Act and motor car Ambassador
    no.GJM­8905 valuing at Rs.100000/­ was also seized in
    this case.
    Hence, it is my complaint against them for the offence
    under Sections 25(1)(BA), 27 of the Arms Act and Section
    135 of the Bombay Police Act. My witnesses are panchas
    with me and the police personnel and others who are
    found during the investigation.
    The above persons were found in possession of weapons
    and cartridges from out of the weapons and explosives
    mentioned in Arms Rules 1962 Schedule­1 Class­1 and
    Class­3(A) Column no.2 and 3 in public area and hence,
    as the offence under Section 5 of TADA Act is also made
    out and so, arrangement is made for obtaining the
    sanction of the District Superintendent of Police,
    Porbandar under Section 20(A)(1) of the Act, by making a
    report along with copies of the panchnama and F.I.R. and
    identification sheets of the accused.”
  10. Thereafter on the same day i.e. 10.04.1995, the District
    Superintendent of Police granted sanction to add Section 5 of
    TADA Act to the offences already registered. The grievance of the
    appellants is that in terms of Section 20­A(1) of TADA Act, no
    information about commission of offence under the Act could
    have been recorded without approval of the District
    Superintendent of Police. Therefore, it is contended that the
    entire initiation of the action wherein the Crime No.II.28/1995
    4
    was recorded without sanction of the District Superintendent of
    Police, vitiates the entire proceedings in so far as they have been
    initiated under TADA Act.
  11. Section 20­A of TADA Act reads as under:
    “20­A. Cognizance of offence.—(1) Notwithstanding
    anything contained in the Code, no information about the
    commission of an offence under this Act shall be recorded
    by the police without the prior approval of the District
    Superintendent of Police.
    (2) No court shall take cognizance of any offence under
    this Act without the previous sanction of the InspectorGeneral of Police, or as the case may be, the
    Commissioner of Police.”
    The language of the Section is mandatory in nature. It starts
    with a non­obstante clause. It forbids the recording of
    information about the commission of offence under TADA Act by
    the police without prior approval of the District Superintendent of
    Police.
  12. The provisions of Section 20­A(1) are mandatory. This issue
    is no longer res integra. In Rangku Dutta @ Ranjan Kumar
    Dutta v. State of Assam1
    , this Court held that the provision,
    which was couched in negative terms is mandatory in nature.
    Relevant portion of the judgment reads as under:
    1 (2011) 6 SCC 358
    5
    “18. It is obvious that Section 20­A(1) is a mandatory
    requirement of law. First, it starts with an overriding
    clause and, thereafter, to emphasise its mandatory
    nature, it uses the expression “No” after the overriding
    clause. Whenever the intent of a statute is mandatory, it
    is clothed with a negative command. Reference in this
    connection can be made to G.P. Singh’s Principles of
    Statutory Interpretation, 12th Edn.…”
  13. Learned counsel for the appellants also placed reliance on
    the judgment of this Court in Anirudhsinhji Karansinhji
    Jadeja & Anr. v. State of Gujarat2
    . In this case, the case was
    registered against the accused initially under the Arms Act. The
    District Superintendent of Police, instead of giving approval for
    recording information, made a report to the Additional Chief
    Secretary, seeking permission to proceed under TADA Act.
    Thereafter, the Additional Chief Secretary, Home Department,
    gave sanction to proceed under TADA Act. Dealing with the issue
    whether Section 20­A(1) was violated and whether the
    prosecution was, therefore, vitiated, this Court has observed as
    under:
    “11. The case against the appellants originally was
    registered on 19­3­1995 under the Arms Act. The DSP
    did not give any prior approval on his own to record any
    information about the commission of an offence under
    TADA. On the contrary, he made a report to the
    Additional Chief Secretary and asked for permission to
    proceed under TADA. Why? Was it because he was
    reluctant to exercise jurisdiction vested in him by the
    2 (1995) 5 SCC 302
    6
    provision of Section 20­A(1)? This is a case of power
    conferred upon one authority being really exercised by
    another. If a statutory authority has been vested with
    jurisdiction, he has to exercise it according to its own
    discretion. If the discretion is exercised under the
    direction or in compliance with some higher authority’s
    instruction, then it will be a case of failure to exercise
    discretion altogether. In other words, the discretion
    vested in the DSP in this case by Section 20­A(1) was not
    exercised by the DSP at all.”
  14. Similar matter came up before this Court in Ashrafkhan &
    Anr. v. State of Gujarat3
    . Dealing with the issue of the
    consequences of non­compliance of Section 20­A(1) of TADA Act,
    this Court held as follows:
  15. It is worth mentioning here that TADA, as originally
    enacted, did not contain this provision and it has been
    inserted by Section 9 of the Terrorist and Disruptive
    Activities (Prevention) Amendment Act, 1993 (43 of 1993).
    From a plain reading of the aforesaid provision it is
    evident that no information about the commission of an
    offence shall be recorded by the police without the prior
    approval of the District Superintendent of Police. The
    legislature, by using the negative word in Section 20­A(1)
    of TADA, had made its intention clear. The scheme of
    TADA is different than that of ordinary criminal statutes
    and, therefore, its provisions have to be strictly
    construed. Negative words can rarely be held directory.
    The plain, ordinary grammatical meaning affords the best
    guide to ascertain the intention of the legislature. Other
    methods to understand the meaning of the statute is
    resorted to if the language is ambiguous or leads to
    absurd result. No such situation exists here. In the face
    of it, the requirement of prior approval by the District
    Superintendent of Police, on principle, cannot be said to
    be directory in nature.”
    3 (2012) 11 SCC 606
    7
    Thereafter, reference was made to the various judgments of this
    Court and it was held as under:
    “37. The plea of the State is that the Commissioner of
    Police having granted the sanction under Section 20­A(2)
    of TADA, the conviction of the accused cannot be held to
    be bad only on the ground of absence of approval under
    Section 20­A(1) by the Deputy Commissioner. As
    observed earlier, the provisions of TADA are stringent and
    consequences are serious and in order to prevent
    persecution, the legislature in its wisdom had given
    various safeguards at different stages. It has mandated
    that no information about the commission of an offence
    under TADA shall be recorded by the police without the
    prior approval of the District Superintendent of Police.
    Not only this, further safeguard has been provided and
    restriction has been put on the court not to take
    cognizance of any offence without the previous sanction
    of the Inspector General of Police or as the case may be,
    the Commissioner of Police. Both operate in different and
    distinct stages and, therefore, for successful prosecution
    both the requirements have to be complied with. We have
    not come across any principle nor are we inclined to lay
    down that in a case in which different safeguards have
    been provided at different stages, the adherence to the
    last safeguard would only be relevant and breach of other
    safeguards shall have no bearing on the trial. Therefore,
    we reject the contention of the State that the accused
    cannot assail their conviction on the ground of absence of
    approval under Section 20­A(1) of TADA by the Deputy
    Commissioner, when the Commissioner of Police had
    granted sanction under Section 20­A(2) of TADA.”
    The Court further held that non­compliance of Section 20­A was
    not a curable defect and could not be cured in terms of Section
    465 of Code of Criminal Procedure, 1973 (CrPC).
    8
  16. Thereafter in Hussein Ghadially & Ors. v. State of
    Gujarat4
    , this Court dealing with Section 20­A of TADA Act held
    as follows:
    “21. A careful reading of the above leaves no manner of
    doubt that the provision starts with a non obstante
    clause and is couched in negative phraseology. It forbids
    recording of information about the commission of
    offences under TADA by the police without the prior
    approval of the District Superintendent of Police…….”
    Thereafter, reference was made to the various judgments of this
    Court and it was held as under:
    “29. The upshot of the above discussion, therefore, is
    that the requirement of a mandatory statutory provision
    having been violated, the trial and conviction of the
    petitioners for offences under TADA must be held to have
    been vitiated on that account…..”
  17. The law is therefore, clear that if Section 20­A(1) of TADA
    Act is not complied with, then it vitiates the entire proceedings.
  18. On behalf of the respondents, it is urged that in terms of
    Section 154(1) of CrPC, an FIR has to be lodged whenever
    information of commission of a cognizable offence is received. It
    is also urged that Section 20­A(1) of TADA Act bars the recording
    of information but it does not specifically bar registration of the
    FIR under the Arms Act. It is also urged that the District
    4 (2014) 8 SCC 425
    9
    Superintendent of Police has to take a decision and, therefore,
    some information has to be placed before him and then only he
    can decide whether the sanction should be granted or not. As far
    as the last submission is concerned, there can be no quarrel with
    respect to the same. Obviously, information will have to be given
    to the District Superintendent of Police but this information can
    be in the nature of a communication specifically addressed to the
    District Superintendent of Police and not in the nature of
    information being recorded in the Register or Book meant for
    recording of information under Section 154 of CrPC. We may
    refer to the opening portion of Section 154 of CrPC, which reads
    as under:
    “154. Information in cognizable cases.­(1) Every
    information relating to the commission of a cognizable
    offence, if given orally to an officer in charge of a police
    station, shall be reduced to writing by him or under his
    direction, and be read over to the informant; and every
    such information, whether given in writing or reduced to
    writing as aforesaid, shall be signed by the person giving
    it, and the substance thereof shall be entered in a book to
    be kept by such officer in such form as the State
    Government may prescribe in this behalf:
    xxx xxx xxx”
  19. The word ‘FIR’ is not used in Section 154 of CrPC, though it
    is now commonly used with regard to information recorded under
    10
    Section 154. Therefore, whenever information relating to
    commission of a cognizable offence is given orally then the officerin­charge of the police station is bound to record that information
    in a book to be kept for such offences in such form as the State
    Government may prescribe in this behalf. What is prohibited
    under Section 20­A(1) of TADA Act is the recording of
    information. We can presume that the Legislature while
    introducing Section 20­A(1) in TADA Act was also aware of the
    provisions of Section 154 of CrPC. Therefore, the clear­cut
    intention was that no information of commission of an offence
    under TADA Act would be recorded by the police under Section
    154 of CrPC without sanction of the competent authority. The
    reason why Section 20­A(1) was introduced into TADA Act in the
    year 1993 by amendment was that because the provisions of
    TADA Act were very stringent, the Legislature felt that a senior
    official should look into the matter to ensure that an offence
    under TADA is made out and then grant sanction.
  20. The bar under Section 20­A(1) of TADA Act applies to
    information recorded under Section 154 of CrPC. This bar will
    not apply to a rukka or a communication sent by the police
    11
    official to the District Superintendent of Police seeking his
    sanction. Otherwise, there could be no communication seeking
    sanction, which could not have been the purpose of TADA Act.
  21. Each case is to be decided on its own facts. The police
    official, not being the District Superintendent of Police, may
    receive information of commission of an offence and may reach
    the scene of a crime. He can record the information on the spot
    and then send a rukka to the police station for recording of FIR.
    There may be cases of serious offences like murder, rape,
    offences under Narcotic Drugs and Psychotropic Substances Act,
    1985, Protection of Children from Sexual Offences (POCSO) Act,
    2012 etc. where any delay in investigation is fatal. In these
    cases, the police officer is entitled to record the information some
    of which may indicate an offence under TADA Act, also because
    non­recording of the information with regard to the main offence
    may delay the investigation and hamper proper investigation in
    the matter. In such cases, while recording the information and
    recording the FIR, for the offences falling under TADA Act, the
    police officials concerned can approach the District
    Superintendent of Police for sanction under Section 20­A(1) of
    12
    TADA Act. The investigation in serious cases of murder, rape,
    smuggling, narcotics, POCSO Act etc. cannot be delayed only
    because TADA Act is also involved.
  22. At the same time, where the information basically discloses
    an offence under TADA Act and the other offence is more in the
    nature of an ancillary offence then the information cannot be
    recorded without complying with the provisions of Section 20­A(1)
    of TADA Act. This will have to be decided in the facts of each
    case. In the case in hand, the only information recorded which
    constitutes an offence is the recovery of the arms. The police
    officials must have known that the area is a notified area under
    TADA Act and, therefore, carrying such arms in a notified area is
    itself an offence under TADA Act. It is true that this may be an
    offence under the Arms Act also but the basic material for
    constituting an offence both under the Arms Act and TADA Act is
    identical i.e. recovery of prohibited arms in a notified area under
    TADA Act. The evidence to convict the accused for crimes under
    the Arms Act and TADA Act is also the same. There are no other
    offences of rape, murder etc. in this case. Therefore, as far as the
    present case is concerned, non­compliance of Section 20­A(1) of
    13
    TADA Act is fatal and we have no other option but to discharge
    the appellants in so far as the offence under TADA Act is
    concerned. We make it clear that they can be proceeded against
    under the provisions of the Arms Act.
  23. As pointed out by us above, the situation may be different
    where, to give an example, the police official finds a dead body,
    sees that a murder has taken place, apprehends a person, who is
    running away after committing the murder and from that person
    a prohibited arm is recovered in a notified area. In such a
    situation, the main offence is the offence of murder and the
    offence of carrying a prohibited weapon in a notified area is the
    secondary offence under TADA Act. Here, the police official can
    record the information and arrest the person for committing an
    offence under Indian Penal Code,1860 but before proceeding
    under TADA Act he will have to take sanction under Section 20­
    A(1) of TADA Act.
  24. In view of the above, the appeal is allowed, the order of the
    Designated TADA Court is set aside and the appellants are
    discharged from the offences under TADA Act but they may be
    14
    proceeded against under other provisions of law, if required.
    Pending application(s), if any, stand(s) disposed of.
    …………………………….J.
    (Deepak Gupta)
    ……………………………..J.
    (Aniruddha Bose)
    New Delhi
    October 16, 2019
    15