ARORA, J. - (1.) THESE Special Appeals are directed against the judgment dated 20-3-95, passed by the learned Single Judge, by which the writ petitions, filed by the petitioner-appellants, were dismissed and the appellants were directed to surrender before the Designated Court, Ajmer, on or before 28-3-95. Since all these appeals arise out of the same judgment and involve identical controversies, we, therefore, think it proper to decide all these Special Appeals by this common judgment.
(2.) F. I. R. No. 77/93 under Section 3/25 of the Indian Arms Act was registered against one Poonam Chand Bishnoi at Police Station, Bajju (district Bikaner ). During the investigation in this F. I. R. , two bags full of arms and ammunition were recovered from the Dhani of Poonam Chand Bishnoi. On interrogation, it was revealed that Poonam Chand Bishnoi was engaged in the activities of smuggling arms and ammunitions from Pakistan through the border district of Bikaner in the State of Rajasthan and was supplying these arms and ammunitions through the other members of the gang to the terrorists and disruptionists operating in Punjab, who, by their activities, have disrupted the communal peace and harmony in Punjab and seriously threatened the sovereignithy and territorial integrity of the Country, Poonam Chand, on interrorgation, further told the investigating officer that he sold some arms and ammunitions to Hanuman Pooniya, Mohan Ram, Ramjas and Sri Chand. On the basis of this disclosure made by Poonam, Chand. on 28. 9. 93 an F. I. R. No. 81/93 under Sections 3 and 5 of the Terrorists and Disruptive Activities Act (T. A. D. A. Act) and under Section 3/25 of the Indian Arms Act was registered against Poonam Chand, Gulam Nabi, Hanuman Pooniya, Mohan Ram, Ramjas and Sri Chand. During the course of investigation, confessional statement of Poonam Chand Bishnoi, under Section 15 (1) of the T. A. D. A Act was recorded by the District Superintendent of Police, Bikaner. Poonam Chand disclosed the names of forty-nine persons, who were involved in this racket of smuggling arms and ammunitions from Pakistan and supplying the same to the terrorists and disruptists operating in Punjab. These forty-nine persons include the petitioners, to whom Poonam Chand had sold various arms and ammunitions, which were received from Pakistan, but the investigating officer could be able to arrest only twenty persons and the remaining twenty-nine accused, including the petitioners, could not be arrested. The police, after necessary investigation, presented the challan against the ten persons for the offences under Sections 3,4,5, and 6 of the T. A. D. A. Act 7/25 and 27 of the Indian Arms Act and under Sections 5,6 and 9-B of the Indian Explosive Act, 1908, and against the remaining ten persons, who have been arrested for the offences under Section 5 of the T. A. D. A. Act, 7/25 and 27 of the Indian Arms Act. While submitting the charge-sheet against these twenty persons, it was mentioned that the investigation against the remaining twenty- nine persons, whose names have been disclosed by Poonam Chand that he had sold the arms and ammunitions to them, the investigation is still going-on as they have not been arrested and a report under Section 173 (8) Cr. P. C. will be filed against them after their arrest and completion of the investigation. The appellant- petitioner, apprehending their arrest in pursuance to the F. I. R. No. 81/93 lodged at Police Station, Bajju (district Bikaner), filed bail applications under Section 438 Cr. P. C. for grant of anticipatory bail before the High Court. They, also, filed Criminal Miscellaneous Petitions under Section 482 Cr. P. C. for quashing the F. I. R. No. 81/1993 as will as for quashing the proceedings. These petitions under Section 438 Cr. P. C. as well as the applications under Section 438 Cr. P. C. for grant of anticipatory bail, were ultimately dismissed as not pressed in view of the decision of the Constitutional Bench of the Supreme Court in Kartar Singh Vs. the State of Punjab (1), wherein it has been held that the High Courts, under the Code of Criminal Procedure, have no jurisdiction to quash the proceeding or to grant bail for the offences under the' T. A. D. A. Act as the jurisdiction of the High Courts under the Code of Criminal Procedure has been completely ousted. The petitioners thereafter filed the writ petitions for quashing the F. I. R. No. 81/93 dated 28-9-93 registered at Police Station, Bajju and, also, for quashing the charge-sheet and proceedings pending against them in. the Designated Court, Ajmer, in pursuance of the aforesaid F. I. R. , under Sections 3 and 5 of the T. A. D. A. Act and Section 3/25 of the Indian Arms Act. It was,also prayed in the writ petitions that the investigating agency may be restrained to proceed with the investigation and to arrest the petitioner-appellants and in case they are. arrested, they may be released on bail. Reply on behalf of the State were filed only in some of the cases, but as the matters arise out of one F. I. R. , the learned Single Judge, therefore, considered those replies in all the aforesaid cases and disposed of the writ petitions filed by the petitioner-appellants and while dismissing the writ petitions, the learned Single Judge observed that it will not be proper to examine the objections raised by the petitioners at this stage and it would be appropriate for the petitioners to raise all these objections before the respective Designated Courts and directed the petitioners to surrender before the Designated Court on or before 28-3-95. It is against this judgment dated 20. 3. 95, passed by the learned Single Judge dismissing the writ petitions filed by the petitioner-appellants that the appellants have preferred these Special Appeals. It is contended by the learned counsel for the appellants that (i) the allegations made in the F. I. R. and the evidence collected during the investigation, do not justify the application of T. A. D. A, Act against the appellants as they do not belong to the category of the persons governed by the T. A. D. A. Act; (ii) the mandatory provisions of Section 20-A (1) of the T. A. D. A. Act have not been complied with as the F. I. R. No. 81/93 dated 28. 9. 93 has been registered at Police Station, Bajju (district Bikaner) without the prior approval of the District Superintendent of Police, Bikaner; (iii) the learned Single Judge, though directed the appellants to appear before the Designated Court to raise their grievances before the Designated Court but he pre-judged the issue, gave his findings and left nothing for the Designated Court to decide. Mr. G. Vaishnava learned counsel for appellant Bhom Raj in D. B. Civil Special Appeal No. 270 of 1995 - has raised some additional grounds that (a) the name of appellant Bhom Raj has not been given in the F. I. R. ; (b) he has been falsely implicated in the case by Poonam Chand on account of strained relations with him but later-on Poonam Chand has filed an affidavit in favour of Bhom Raj; (c) no recovery of any arm or ammunition has to be made from this appellant as the same has been made from this appellant as the same has been made from the father of Poonam Chand; and (d) appellant Bhom Raj is neither a previous convict nor it has been alleged against him that he is involved in terrorist and disruptive activities Mr. M. L. Garg learned counsel for appellant. Ram Kishan and Mam Raj in D. B. Civil Special Appeal No. 268 of 1995 - has, also, raised an additional ground that appellants Ram Kishan and Mam Raj have been implicated in the case on the false confessional statement of Shiv Lal and no recovery of any arm or ammunition has been made from them and in fact the recoveries have been made from them and in fact the recoveries have been made at the instance of Shiv Lal from the hotel at Jaipur where Shiv Lal was staying. Countervailing the challenges made by the learned counsel for the appellants, the learned Additional Advocate General submitted that there is ample evidence collected by the investigating agency, which justify the invoking of the provisions of T. A. D. A. Act against the appellants and so far as appellants Ram Kishan, Mam Raj and Bhom Raj are concerned, the investigation against them is still pending and the recoveries have to be made from them after they are arrested. The contention of the learned Additional Advocate General, so far as the recovery of the arems and ammunitions made from Rajhans Hotel, Jaipur, is concerned, is that these recoveries were made from the room in which accused Ram Kishan and Mam Raj were staying and according to him, the investigation has not been completed and, therefore, at this pre- mature stage, the proceedings cannot be quashed by the High Court exercising its powers under Article 226 of the Constitution of India. It has been further contended by the learned Additional Advocate General that the jurisdiction of the High Court has been excluded in the matters relating to T. A. D. A. Act. We have considered the submissions made by the learned counsel for the parties.
(3.) THE first contention, raised by the learned counsel for the appellants, is that under Article 226 of the Constitution of India, the High Court can quash the proceedings under the T. A. D. A. Act if the allegations made against the accused ex facie do not constitute any offence under the T. A. D. A. Act. THE Court also, owes a duty to ensure that the State Machineries should act fairly and not with extrenuous consideration and if the proceedings under the Act are found to be an abuse of the process of the Court or taken for extrenuous consideration or there is no material on record to show that a case under the T. A. D. A. Act is made out then these proceedings can be quashed by the High Court. In support of its contention, learned counsel for the appellants have placed reliance over: Ayub Khan kalandar khan Pathan Vs. the State of Gujarat and others (2), Rafiq Abid Patel and others Vs. the Inspector of Police, Kashmira Police Station, Thane and another (3), Shri Ajit Khimji Udeshi Vs. the State of Maharastra (4), Santosh Dattaram More and another Vs. the State of Maharastra (5), Ghanshyam Soni Vs. Union of India (6), Kartar Singh Vs. the State of Punjab (7), Swai Singh vs. THE State of Raj. & Ors. (D. B. Habes as Corpus Petition No. 4880 of 1994 decided on 16-2-95) and State of Maharastra Vs. Abdul Hamid Haji Mohammed Now we have to consider and determine the limitation of the power of the High Caurt under Articles 226 and 227 of the Constitution of India relating the matters under the T. A. D. A. Act. pending before the Designated Court. The T. A. D. A. Act was enacted to curb the growing menace of the terrorism in different parts of the country as ordinary criminal law was found inadequate for this purpose. The Act. makes special provisions for the prevention of, and for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. The Act created a new class of, offences not covered by the Indian Penal Code or any other Penal Law and provides a special machinery and special procedure for the trial of such cases. Terrorists and disruptionists have been grouped as a separate class of offenders from the ordinary criminals. Under the Act, there is a complete exclusion of the jurisdiction of the High Courts in the matters involving the trial of any person on an accusation of any offence punishable under the T. A. D. A. Act or any rule made thereunder. The powers of the trial in such cases vests in the Designated Court constituted under Section 9 of the Act and the order passed by the Designated Court has been made appealable before the Hon'ble Supreme Court under Section 19 of the Act. The High Court therefore, under the Code of Criminal Procedure, has no jurisdiction to interfere in the matters of trial of the offences or for the grant of bail in the offences under the T. A. D. A. Act. Whether the powers of the High Court, under Articles 226 and 227 of the Constitution of India, can be taken away by the legislation like the T. A. D. A. Act? In the case of Ayub Khan Kalandar Khan Pathan Vs. the State of Gujarat and others (supra), the Division Bench of Gujarat High Court held that "once there is an iminent threat of violation of fundamental rights coupled with overt- act, such an action of the Government can be challenged for protecting the fundamental rights guaranteed under Article 21 of the Constitution of India. In view of the aforesaid discussion, we hold that the provisions of the T. A. D. A. Act do not take away the fundamental right of the petitioner indserted under Article 21 and, therefore the High Court has also, power under Article 226 to entertain such petition for proteting the fundamental right before it is violated. " In that case, the High Court after looking into the facts and circumstances of the case, came to the conclusion that the F. I. R. alongwith the statement of three persons do not disclose commission of offence under Section 3 of the T. A. D. A. Act and therefore, the High Court directed the respondents not to arrest the petitioner for the alleged commission of the offences but further observed that the respondent No. 2 will be at liberty to further investigate the matter and on further investigation if he is satisfied that it is necessary to proceed against the petitioner under the provisions of T. A. D. A. Act, he would be at liberty to do so. In Rafiq Abid Patel and Others Vs. the Inspector of Police, Kashmira Police Station, Thane and Another (supra), the petition was made for quashing the proceedings initiated against the petitioner under Sections 5 and 6 of the T. A. D. A. Act. No prima facire case for applying the provisions of the Act was made-out and, therefore the Division Bench of Bombay High Court, exercising its owers under Article 226 of the Constitution of India, quashed the proceedings initiated against the petitioner. In Shri Ajit Khimji Udshi Vs. the State of Maharastra (supra), the Division Bench of Bombay High Court opined that the application of the provisions of the T. A. D. A. Act. , against the petitioners having regard to the facts and circumstances of the case, was not sustainable and, therefore, the proceedings were quashed, but the Division Bench however observed that the decision is passed on the facts and circumstances of the case and does not lay down any final verdict in the matter. In the case of Santosh Dattaram More and Another Vs. The State of Maharashtra (supra), the controversy before the Division Bench of Bombay High Court was whether the Designated Court has jurisdiction to try the case of the petitioner under sections 412 and 414 I. P. C. when the provisions of the T. A. D. A. Act were not applicable to the petitioner. The Division Bench of Bombay High Court held that the Designated Court may have jurisdiction to try any other offence is connected with such other offence under the T. A. D. A. Act but not in the case where no case is triable under T. A. D. A. Act is made out. This case, on which reliance has been placed by the learned counsel for the appellant, has no relevance to the present case as the controversy raised in that case is not under consideration before this Court. In the case of : Ghanshyam Soni Vs. Union of India and others (supra), the proceedings against the petitioners under Section 5 of the T. A. D. A. Act were initiated with respect to the possession of arms and ammunitions recovered from the residential premises of the petitioner situated in the town of Pali. Likewise, in the case of Sawai Singh Vs. the State of Rajasthan and others (D. B. Habeas Corpus Petition No. 4880 of 1994 - decided on 16-2-95), the proceedings were initiated against him under Section 5 of the T. A. D. A. Act read with Section 3/25 and 27 of the Indian Arms Act with respect to the possession of the arms and ammunitions recovered from his house situated in Kuchera (district Nagaur ). Pali and Kuchera (district Nagaur ) were not declared as Notified Areas within the meaning of Section 2 (7) of the T. A. D. A. Act and, therefore, the provisions of Section 5 of the T. A. D. A. Act are not attracted. When the Act itself was not applicable in the areas, from where the recoveries were made, the ingredients of the offences were not made-out and the proceedings were wholly without jurisdiction and were rightly quashed. In the case of : the State of Maharastra Vs. Abdul Hamid Haji Mohammed (supra), though the controversy raised was the same but it was not decided by the Supreme Court but the order, granting bail by the High Court, was stayed and the case was remanded to the High Court to dispose of the writ petition itself. As no issue has been decided by the Supreme Court in this case, this judgment is, also, of no assistance to the appellants. ;