"The court said that by the time, fresh evidence came to light requiring re-introduction of TADA provisions, the approval for recording information under the act had become necessary."
New Delhi, July 18 - The Supreme Court Friday acquitted all the 11 people convicted for January and April 1993 bomb blasts in Gujarat's Surat in which a eight-year-old child was killed and several people were injured.
A bench of Justice T.S. Thakur and Justice C. Nagappan said: The requirement of a mandatory statutory provision having been violated, the trial and conviction of the petitioners for offences under the (now repealed Terrorist and Disruptive Activities (Prevention) Act) TADA must be held to have been vitiated on that account.
The investigating agency did not take the prior permission of the district police chief before recording information for offences under TADA which was mandatory and could not be waived, the court said in its judgment.
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 police without the prior approval of the district superintendent of police, the court said.
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, said Justice Thakur speaking for the bench.
The court said that exercise of authority vested in the district superintendent of police by any authority either higher in rank or lower is legally impermissible.
In both the cases, police invoked the provisions of TADA but they were later withdrawn after TADA review committee said so. However, they were reinserted at the instance of police at a later stage.
The contention of the Gujarat government was that initially when TADA was invoked, there was no provision in the anti-terror law that mandated prior approval of the district superintendent of police and this provision was inserted later.
The argument that the first information report regarding the two incidents had been registered before the introduction of section 20-A (1) in the statute book making approval of the competent authority unnecessary has not impressed us, the court said addressing the state government's contention.
It noted it was true that the two incidents had taken place and cases were registered before the provision came into force, but the fact remains that the provisions of TADA were removed from the reports pursuant to the recommendations of the Review Committee.
The court said that by the time, fresh evidence came to light requiring re-introduction of TADA provisions, the approval for recording information under the act had become necessary.
The fact that such approval was considered necessary even by the investigating agency and was prayed for, only shows that the authorities were aware of the requirement of law and had consciously attempted to comply with the said requirement no matter by applying for such approval to an authority not competent to grant the same, the court said.