TADA approval, sanction, and co-accused confession rules limited prosecution; several terrorism convictions failed for missing statutory proof.

Prior approval under Section 20A(1) of TADA was held to require actual prior approval, not necessarily written approval, so an FIR and investigation were not invalid where approval had in fact been obtained. Sanction defects under Section 20A(2), read with Section 465 CrPC, did not vitiate prosecution absent failure of justice. Convictions under Section 3(5) failed because the provision required proof of post-commencement terrorist acts by the gang or organisation. Harbouring under Section 3(4) required mens rea, and a company could not be convicted without a statutory basis for juristic liability. Co-accused confessions were not substantive evidence against another accused unless tried jointly for the same offence.

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Issues: (i) Whether prior approval under Section 20A(1) of TADA had to be in writing and whether the absence of written approval vitiated the FIR and investigation; (ii) whether the sanction for prosecution and any irregularity in sanction could invalidate the proceedings under Section 20A(2) of TADA read with Section 465 of the Code of Criminal Procedure, 1973; (iii) whether conviction under Section 3(5) of TADA was sustainable in the absence of proof that a terrorist gang or organisation committed terrorist acts after the provision came into force; (iv) whether mens rea was an essential ingredient of harbouring under Section 3(4) of TADA, whether a company could be convicted for that offence, and whether the evidence established harbouring against the concerned accused; (v) whether confessional statements of co-accused could be used against another accused when they were not tried for the same offence; and (vi) whether the Arms Act conviction and the raid version were proved on the evidence.

Issue (i): Whether prior approval under Section 20A(1) of TADA had to be in writing and whether the absence of written approval vitiated the FIR and investigation.

Analysis: The statutory requirement was only of prior approval by the District Superintendent of Police. The text of the provision did not require written approval. The record showed that approval had in fact been obtained before registration of the FIR, and the presence of an offence under the Arms Act in the FIR also meant that the FIR was not invalid merely because approval under TADA was not in writing. The procedural safeguard was satisfied if approval was actually granted, even orally.

Conclusion: The challenge based on absence of written approval failed.

Issue (ii): Whether the sanction for prosecution and any irregularity in sanction could invalidate the proceedings under Section 20A(2) of TADA read with Section 465 of the Code of Criminal Procedure, 1973.

Analysis: The sanction order showed application of mind to the facts and disclosed an intention to prosecute for the offences arising from those facts. Even if there was any omission or imperfection in the recital of particular offences, Section 465 of the Code controlled the consequence of such irregularity and a conviction could not be reversed unless failure of justice was shown. The curative principle under the Code was applied to avoid defeat of the prosecution on a mere technical defect in sanction.

Conclusion: The sanction was not invalid on the grounds urged, and the objection did not vitiate the prosecution.

Issue (iii): Whether conviction under Section 3(5) of TADA was sustainable in the absence of proof that a terrorist gang or organisation committed terrorist acts after the provision came into force.

Analysis: Section 3(5) became operative only from 23.5.1993, and Article 20(1) prohibited conviction for conduct not covered by law in force when the act was committed. The provision required proof that the accused was a member of a terrorist gang or organisation and that the gang or organisation had committed terrorist acts after the provision commenced. There was neither an averment in the charges nor evidence showing any post-23.5.1993 terrorist act by the relevant gang. Without both statutory ingredients, the offence under Section 3(5) could not stand.

Conclusion: The convictions under Section 3(5) of TADA were unsustainable and were set aside.

Issue (iv): Whether mens rea was an essential ingredient of harbouring under Section 3(4) of TADA, whether a company could be convicted for that offence, and whether the evidence established harbouring against the concerned accused.

Analysis: The expression "harbors" was construed in its penal sense and the provision was held to require knowledge that the person sheltered was a terrorist. The Court also held that a company could not be convicted under Section 3(4) in the absence of a statutory scheme fastening such criminal liability on a juristic person. On the facts, the evidence against several accused failed to establish the necessary link between the alleged sheltering and the identity or terrorist status of the persons said to have been harboured. As regards one accused, the attempted use of unproved letters through Section 313 questioning was impermissible, and the prosecution evidence did not sufficiently establish the offence.

Conclusion: Mens rea was essential, the company could not be convicted under Section 3(4), and the convictions under Section 3(4) were set aside.

Issue (v): Whether confessional statements of co-accused could be used against another accused when they were not tried for the same offence.

Analysis: A confession admissible under Section 15 of TADA could be used against a co-accused only subject to the same limitations that govern Section 30 of the Indian Evidence Act, 1872. Such a confession was not substantive evidence against a co-accused and could not be used where the co-accused and the maker of the confession were not tried jointly for the same offence. Since that condition was absent, the confessions could not support the finding against the concerned accused for harbouring.

Conclusion: The co-accused confessions were not usable against the other accused for the relevant charge.

Issue (vi): Whether the Arms Act conviction and the raid version were proved on the evidence.

Analysis: The evidence of the police witnesses was accepted on careful scrutiny, and the defence theory of an earlier illegal detention was rejected. At the same time, the conviction of one accused under Section 25 of the Arms Act could not stand because the knife recovered from him was not shown to satisfy the description in the relevant notification under Section 4 of the Arms Act. The Court also upheld the prosecution version of the raid and seizure as against the remaining accused concerned with the arms offences.

Conclusion: The raid was proved, but the knife-based Arms Act conviction of the concerned accused was set aside.

Final Conclusion: The appellants secured substantial relief through acquittal from the principal TADA charges, while some convictions for arms-related offences were maintained, and the matter remained open on the proposal to enhance the sentence under Section 5 of TADA after notice to the affected appellants.

Ratio Decidendi: A conviction under TADA provisions must rest on the full statutory ingredients proved by admissible evidence, and a co-accused confession cannot be used as substantive proof against another accused unless the governing evidentiary conditions are satisfied.

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