Section 20-A of TADA -Mandatory – whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. – Apex court held that A careful reading of the section 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. The question is whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. Our answer to that question is in the negative. The reasons are not far to seek. We say so firstly because the statute vests the grant approval in an authority specifically designated for the purpose. That being so, no one except the authority so designated, can exercise that power. Permitting exercise of the power by any other authority whether superior or inferior to the authority designated by the Statute will have the effect of re-writing the provision and defeating the legislature purpose behind the same – a course that is legally impermissible – Acquitted all accused as there was no evidence under penal laws apart from TADA = CRIMINAL APPEAL NO. 92 OF 2009 Hussein Ghadially @ M.H.G.A Shaikh & Ors. …Appellants Versus State of Gujarat …Respondent = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41775

Section  20-A  of  TADA – Mandatory – whether  the  power  of approval vested in the District Superintendent of Police could be  exercised by either the Government or the Additional  Police  Commissioner,  Surat  in the instant case. – Apex court held that A careful reading of the section 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.  The question is  whether  the  power  of approval vested in the District Superintendent of Police could be  exercised by either the Government or the Additional  Police  Commissioner,  Surat  in the instant case.  Our answer to that question  is  in  the  negative.   The reasons are not far to seek.  We say so firstly because  the  statute  vests the grant approval in an authority specifically designated for the  purpose. That being so, no one except the  authority  so  designated,  can  exercise that power.  Permitting  exercise  of  the  power  by  any  other  authority whether superior or inferior to the  authority  designated  by  the  Statute will  have  the  effect  of  re-writing  the  provision  and  defeating  the legislature  purpose  behind  the  same  –   a  course   that   is   legally impermissible – Acquitted all accused as there was no evidence under penal laws apart from TADA  = 

In Criminal (TADA) case No.59 of 1995 and 2 of  2000  arising  out  of

C.R. No.32 of 1993 the Designated Court has similarly convicted some of  the

accused persons who are (appellants before us in Criminal Appeals No.110  of

2009 and 659 of 2009). =

The State has also assailed in the appeals  filed  by

it the judgment of the Trial Court and sought enhancement  of  the  sentence

awarded to those convicted by it in Criminal Appeals No.303-304 of 2009.=

It was contended that the conviction and sentence of  the  appellants

ought to be set aside not only because the provision of Section 20-A (1)  is

mandatory but also because the power to  grant  approval  for  recording  of

information about the commission of  an  offence  under  the  Act  could  be

exercised only by the  authority  concerned  under  such  provision  and  by

nobody else.

The  designated  authority  could  not,  contended  Mr.  Kumar

abdicate the exercise of power in favour of any other authority,  no  matter

such other authority was higher in rank to  the  designated  authority.

It was also contended that if the law prescribes  a  particular  procedure  for

doing a particular thing then any such thing  could  be  done  only  in  the

manner prescribed or not at all.

Inasmuch as the  procedure  prescribed  by

law which  required  the  approval  of  the  competent  authority  to  grant

approval for recording the information had not been followed, the trial  and

conviction of the appellants in breach of a mandatory provision was  legally

unsustainable.

Apex court held that

whether these approvals  can  be  said

to be sufficient compliance with the provisions  of  Section  20-A  of  TADA

that reads as under:-

“20-A  Cognizance of offence.

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.

No court shall take cognizance of any offence under  this  Act  without  the

previous sanction of the Inspector-General of Police, or  as  the  case  may

be, the Commissioner of Police.”

17.   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.  The question is  whether  the  power  of

approval vested in the District Superintendent of Police could be  exercised

by either the Government or the Additional  Police  Commissioner,  Surat  in

the instant case.  Our answer to that question  is  in  the  negative.   The

reasons are not far to seek.  We say so firstly because  the  statute  vests

the grant approval in an authority specifically designated for the  purpose.

That being so, no one except the  authority  so  designated,  can  exercise

that power.  Permitting  exercise  of  the  power  by  any  other  authority

whether superior or inferior to the  authority  designated  by  the  Statute

will  have  the  effect  of  re-writing  the  provision  and  defeating  the

legislature  purpose  behind  the  same  –   a  course   that   is   legally

impermissible

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41775

T.S. THAKUR, C. NAGAPPAN