TMI Blog1997 (8) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... up in appeal under Section 19 of TADA and the State of Gujarat have field an appeal for enhancement of the sentence of the first accused to the maximum limit provided in law. We heard both appeals together. First accused in the father of second accused Kalu Rambhai Gadhvi and also elder brother of the fourth accused Nagshi Nathabhai Gadhvi. The third accused Hitesh vajshi Pindariya is their neighbour. The nub of the case against them is that they all were actively engaged in smuggling of goods particularly arms and ammunitions. First accused is described as the kingpin of the joint venture of all the accused in the nefarious activities. Further details of the prosecution case would show that the District Superintendent of Police, Jamnagar, got some information about the activities of the accused and so he proceeded to their residence at Khambalia (in Jamnagar District with a posse of police personnel during the wee hours on 18-6-1993. On the way, he secured the presence of the Sub Divisional Magistrate (PW-4) and two other persons for witnessing the operation which was in the offing. On arrival at the residence of the first accused the Superintendent of police knocked at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence of offences under TADA. We must bear in mind that sanction is not granted to the Designated Court to take cognizance of the offence, but it is granted to the prosecuting agency to approach the court concerned for enabling it to take cognizance of the offence and to proceed to trial against the persons arraigned in the report. Thus a valid sanction is sine qua non for enabling the prosecuting agency to approach the court in order to enable the court to take cognizance of the offence under TADA as disclosed in the report. The corrolary is that, if there was no valid sanction the Designated Court gets no jurisdiction to try a case against any person mentioned in the report as the court is forbidden from taking cognizance of the offence without such sanction. If the Designated Court has taken cognizance of the offence without a valid sanction, such action is without jurisdiction and any proceedings adopted thereunder will also be without jurisdiction. 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 20A(2) of TADA. We are reproducing Ext.63 below: Sr. No.J-1/1909/1/Kh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other penal statutes. One of us (Dr. Anand, J) has explained in Hitendra Vishnu Thakur and ors vs. State of Maharashtra and ors. [1994 (4) SCC 602], while dealing with sanction under Section 20A of TADA, that The section was obviously introduced to safeguard a citizen from any vaxatious prosecution under TADA. Vide Section 20-A(2) of TADA no court can take cognizance of an offence under TADA unless there is a valid sanction accorded by the competent authority as prescribed by the section. In Anirudhsinhji Karansinhji Jadeja and anr. vs. State of Gujarat [1995(5) SCC 302], a three Judges Bench had looked at the broad principles governing sanction contemplated under TADA. The Bench noted in that case that for prosecution under TADA the State Government had provided two administrative instructions as additional safeguards against the drastic provisions of TADA wherein the DSP would required require the consent of the State Government. When the consent relied on by the prosecution in that case was considered the three Judges Bench observed that it was given by the State Government without proper application of mind, even though the said consent was granted on the strength of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of TADA. The exercise exhibits that the Director General of Police did not even read, let 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 Act. In view of the aforesaid legal and factual position we have no 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 matter. It vitiates sanction and hence Ext.63 cannot be treated as sanction under Section 20A(2) of TADA. Faced with this situation, learned counsel for the State of Gujarat contended that it is open to this Court to convict the accused under Section 25 of the Arms Act with the available evidence on record since the interdict contained in Section 20A(2) of the TADA has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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