1. Heard the parties.
2. The sole appellant along with Kaushik Maganlal and Arjun Maruti Kaginkar was tried and by judgment rendered by the Designated Court, while other accused persons were acquitted, the appellant was convicted under S.5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "the TADA Act") and sentenced to undergo rigorous imprisonment for a period of five years and to pay fine of Rs. 1000, in default, to undergo further rigorous imprisonment for a period of six months. The appellant was further convicted under S.25(1-B)(a) of the Arms Act, 1959 and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 500, in default, to undergo further imprisonment for a period of three months. The sentences, however, were ordered to run concurrently. Hence this appeal.
3. The appeal has got to succeed on a short question, as such it is not necessary to state the facts. S.20-A(1) of the TADA Act lays down that
"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"
The question to be considered is as to whether prior approval of the District Superintendent of Police was taken in the present case or not. First information report was lodged on 14-7-1994. Prosecution has come out with a definite case and evidence that before lodging of first information report, oral approval had been already granted but formal order of approval in writing was passed by the competent authority on 15-7-1994. The order of approval is Exhibit 36 wherein nowhere has it been stated that earlier at any point of time, much less even on 14-7-1994, oral approval was accorded. These facts clearly show that the case of oral approval is completely absent in the order of approval (Ext. 36). Mr R.K. Jain, learned Senior Counsel appearing on behalf of the appellant placed reliance upon a three Judge Bench decision of this Court in the case of State of A.P. v. A. Sathyanarayan, 2001 (10) SCC 597 [LQ/SC/2000/1483] a wherein it has been laid down that in case the factum of oral sanction is not enumerated in the subsequent written order of sanction, the prosecution case of oral sanction cannot be accepted: and in that view of the matter this Court set aside conviction of the accused under the TADA Act as in its opinion there was infraction of the provisions of S.20-A(2) of the TADA Act which lays down that:
"20-A. (2) 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."
The present case relates to infraction of the provisions of S.20-A(1) and ratio laid down in the case of A. Sathyanarayana, although that was a case of infraction of the provisions of S.20-A(2) of the TADA Act, would apply with equal force as both the provisions are similar, in the former prior approval is required before recording a first information report about commission of offence under the TADA Act whereas in the latter prior sanction is necessary before taking cognizance. Thus, we have no option but to hold that conviction of the appellant under S.5 of the TADA Act was unwarranted, the same being in violation of the provisions of S.20-A(1) of the TADA Act.
4. Next question which now arises is regarding legality or otherwise of the order of conviction of the appellant under the provisions of S.25(1-B)(a) of the Arms Act, 1959. Mr R.K. Jain, learned Senior Counsel appearing on behalf of the appellant very fairly submitted that he is not in a position to point out any illegality either in law or on facts in conviction of the appellant for the aforesaid offence. This being the position, it is not necessary for us to go into the legality or otherwise of the conviction under S.25(1-B)(a) of the Arms Act. It has been stated that a one year sentence was imposed for the aforesaid offence but the appellant has already remained in custody for a period of more than two years which shows that the sentence of imprisonment served out by the appellant is much more than the sentence awarded against him for the aforesaid offence.
5. For the foregoing reasons, the appeal is allowed in part, while upholding conviction and sentence of the appellant under S.25(1-B)(a) of the Arms Act, 1959, his conviction and sentence under S.5 of the TADA Act are set aside and he is acquitted of the charge. The appellant, who is on bail, is discharged from the liability of bail bonds.
