AJIT KHIMJI UDESHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is a petition filed by the petitioner under Article 226 of the Constitution of India seeking appropriate writ or direction for quashing application of provisions of Section 5 of Terrorist and Disruptive Activities (Prevention) Act, 1987, in respect of C. R. No. 1135 of 1991of Virar Police Station,

(2.) IN order to consider the rival contentions raised before us, it would be appropriate to set out averments contained in the complaint dated 28. 4. 1991 lodged by the complainant Shri Ranjit kumar Raj Deshmukh at Virar Police Station (F. I. R. ). This complaint came to be registered by the Virar Police Station being C. R. No. 1135 of 1991. The allegations contained in this complaint may be briefly summarised as under. The complainant Deshmukh has a residence in Bombay and also possesses an accommodation at Virar in Rajinsi Apartment. According to him, he obtained arm licence in 1978 from the concerned Police Authority and the said licence is valid till the date of the incident. On 28. 4. 199 1, he had gone to his Virar residence. At about -10. 30 p. m. on the said day, he was sitting in his house and listening to music. The petitioner (Accused) came to his house and appreciated the music and requested him to permit him to sit in the house and listen to the music. At that time, the complainant was having drinks. He had kept h is pouch containing pistol on his bed. He offered the petitioner (accused) the drinks. He also showed the petitioner (accused) the pistol which he had kept in the pouch. According to the complainant, he then went to have bath and before he went for bath he saw wife of the petitioner having come to his house. Since the complainant was going to Bombay he had lifted and kept his Stereo in the cupboard. In the meantime, the petitioner (accused) without informing him anything went away. The complainant further alleged that after putting on clothes he wanted to keep his pistol on his person. When he lifted the pouch, he found it very light and suspected some foulplay. He, therefore, immediately came on the ground floor and apprehended the petitioner (accused ). Complainant told him that he has committed theft of his pistol. Petitioner (accused) told the complainant that they should go to Police Station. Accordingly, both of them went to Police Station on 28. 4. 1991 between 10 and 10. 50 P. M. In the complaint it was alleged that the petitioner (accused) and his wife with common intention committed theft of loaded pistol and he has got every suspicion on the petitioner (accused) and on his wife. This complaint was registered at the Virar Police Station at about 2. 30 a. m. on 29. 4. 1991, and the petitioner (accused) was shown to have been arrested on the same day at about 9:30 A. M. on 29. 4. 1991. The petitioner (accused) was produced before the learned Judicial Magistrate, F. C. , Vasai with a remand application and remand was granted till 4. 5. 1991. It is alleged that recovery of the pistol was made on 30. 4. 1991 and it is said that the same was pursuant to the statement made by the petitioner. Recovery of the pistol is shown to have been made under Section 27 of the Indian Evidence Act. On 4. 5. 1991 the same police station made second application for remand and magisterial custody was granted till 18. 5. 1991. On 6. 5. 1991, the petitioner, made an application for bail. The concerned investigating officer on 7. 5. 1991 filed reply opposing the bail application and it was stated therein that the provisions of the TADA Act are being made applicable against the petitioner. The learned trial Judge after hearing both the sides on 8. 5. 1991 passed order releasing the petitioner (accused) on bail and it is not disputed that the petitioner availed bail on 8. 5. 199 1.

(3.) IN the meantime, the Investigating officer moved the Superintendent of Police, Thane (Rural), with an application to apply provisions of the TADA Act against the petitioner (accused ). This application came to be granted on 17. 9. 1991 by the Superintendent of Police, Thane (Rural ). Since the provisions of TADA Act were made applicable against the petitioner, the investigating officer moved the trial Court for cancellation of the bail, and it is common ground that the learned Trial Judge, having regard to the provisions of TADA Act, by his order dated 7. 10. 1991 cancelled the bail. It is also not disputed by the petitioner that after cancellation of his bail, he has not surrendered to police as per bail bond executed pursuant to the order dated 8. 5. 1991. In the meantime, the petitioner, on 27. 12. 1991 has filed the present writ petition challenging application of provisions of the TADA Act against him. This writ petition came up for admission on 20. 1. 1992 and this Court made Rule returnable on 10. 2. 1992. After hearing both the sides, this Court ordered that the order of bail dated 8. 5. 199 1 passed by the Judicial Magistrate, F. C. , Vasai shall continue during the pendency of this writ petition. Certain other incidental directions were also given in the said order.