Mohd. Ikram @ Mohd. Akhtar vs State
1993 Latest Caselaw 397 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) Rule D.B.

(2) This petition under Article 226 of the Constitution of India read with Section 482 of Cr. P.C. seeks quashing of the order made by Sh. Babu Lal, learned Metropolitan Magistrate on 26th April 1993 directing that the case be committed to Special Court for trial as, prima facie, offence under Section 5 of Tada is disclosed to be committed by the accused which is exclusively friable by the Designated Court. The accused was on bail because he was charged under Sections 25 and 27 of the Arms Act. The learned Magistrate after noticing that under the provisions of Tada he had no power to grant bail, directed that the accused be taken into custody and be produced before the Designated Court.

(3) The undisputed facts are that since 1988 the accused petitioner is being tried for offences under the provisions of the Arms Act by the court of the Metropolitan Magistrate. The petitioner was granted bail on 2nd February 1988 on furnishing surety in the sam of Rs. 3,000.00 . The said bail was continuing till 26th April 1993. The case set up in the petition is that on 26th April 1993 the case was fixed before the Metropolitan Magistrate for recording the prosecution evidence 'and the prosecution with nesses were not present when the impugned order was made. The learned Magistrate by the impugned order after noticing that one country made revolver Along with five cartridges were allegedly recovered from the possession of the accused on 1st February 1988 and that Delhi is a notified area for the purposes of Tada and was declared so in October 1987 and as the alleged offence was allegedly committed on 1st February 1988, possession of fire arm Along with ammunition would prima facie attract the provisions of Section 5 of TADA. After holding that prima facie offence under Section 5 of Tada is disclosed to be committed by the accused and as the said offence is exclusively to be tried by the designated court, the case was directed to be committed to the Special Court for trial. The accused was on bail. The Magistrate directed that the accused be taken into custody as the court had no power to grant bail for offences under Tada and produced before the designated court.

(4) In the counter affidavit the aforesaid allegations made in the petition have not been denied. The only plea taken is that the charge under Tada Act has not been framed against the petitioner by Sessions Court and be has a right to make submissions before the Sessions Court during arguments at the point of charge. We do not agree. The provisions of Tada have drastic consequences. In the facts and circumstances of the case the least which the Magistrate should have done before committing the accused to designated court was to give a fair and reasonable opportunity to the accused to state as to why be may not be committed to designated court for offence under TADA. It was not done and thus impugned order cannot be sustained. As noticed hereinbefore, the accused was on bail for a period of more than five years. The challan has been filed under various provisions of the Arms Act. When the impugned order was made the prosecution witnesses, as per the case of the petitioner, were not present and without affording any opportunity to the petitioner the impugned order was made. At this stage, we refrain from expressing any opinion on the question whether mere possession of arms would attract the provisions of Tada or not. As and when and if the concerned Magistrate gives opportunity to the accused for committing him to designated court for offence under Tada it would, of course, be open to the accused to take such pleas as would be available to him in accordance with law.

(5) For the reasons stated above, the impugned order is liable to be quashed and we direct accordingly. The trial under the provisions of the Arms Act under which the accused has been charged will proceed. The accused is directed to be produced before the learned Magistrate on 9th July 1993 when appropriate orders for grant of his bail will bemade. A copy of the order be sent to the learned Magistrate and the Superintendent Jail III. A copy of the order be also given to 'counsel for the parties. The petition is disposed of in the above terms.