BRIJ MOHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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