HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.3996 OF 2008 DATE: 09-09-2011 BETWEEN: P.V. Kondala Rao and another. - - - Petitioners/Accused. AND The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad And another. - - - Respondents/ De-facto Complainant. This Court made the following : HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.3996 OF 2008 ORDER: This Criminal Petition is filed by the Petitioners/Accused Nos.1 and 2 (For short, ‘A-1 and A-2’) under Section 482 Cr.P.C., seeking to quash proceedings in P.R.C. No.42 of 2008, pending on the file of the Court of III Additional Judicial Magistrate of First Class, Warangal, registered for offences punishable under Section 8 (1) of Andhra Pradesh Public Security Act and Section 21 of the Unlawful Activities (Prevention) Amendment Act, 2005 (For short, ‘the Act’) 2. Whereas the Petitioners are A-1 and A-2, the Respondent No. 2 is the de-facto complainant in the Preliminary Registered Case. For the sake of convenience, I refer the parties as arrayed in the Preliminary Registered Case. 3. The case of the prosecution in brief is as follows : A-1 and A-2 are strong and committed sympathizers of C.P.I. (Maoist) Party, they worked and aided the party for about 15 to 20 years. About ten days prior to the incident in question i.e., on 03-04- 2007, A-1 received an amount of Rs.5,00,000/- (50 bundles of Rs.100/- currency notes) packed in a paper box in a carry bag from Gajarla Ravi @ Ganesh, Secretary KKW and Member of NTZC through an unknown dalam member and handed over the amount to A-2 for purchasing party literature and for transmitting it to the Secretary KKW. In pursuance of the said act on 04-04-2007 at about 08-00 a.m. A-2 hired a Tata Indica Car bearing registration No.AP 11 X 1348 and reached the house of A-1 along with the said cash and some party literature belonging to C.P.I. (Maoist) Party. Then the Police on necessary information arrested both A-1 and A-2 for possessing the money and literature of the C.P.I (Maoist) Party and hence they are liable to be punished for the alleged offences. 4. It is the contention of learned counsel for A-1 and A-2 that by virtue of Section 45-A of the Unlawful Activities (Prevention) Act, 1967 charge sheet in the case should not have been filed against the Accused without the previous sanction of the State Government and further by virtue of Section 43 of the Act, at least Deputy Superintendent of Police or Police Officer of an equivalent rank should have investigated the case and further by virtue of Section 25 of the Act, such Police Officer while investigating the case with regards to the offences covered by Chapter IV and VI of the Act only got right to seize the case property with the prior approval in writing of the Director General of Police in the State but significantly, as per the prosecution at first the Sub-Inspector of Police, Ghanpur P.S. took up and conducted the investigation of the case during the course of which he seized the case property whereas, subsequently the investigation of the case was taken over and completed by the Deputy Superintendent of Police, Warangal following which he filed the corresponding charge sheet and therefore in view of non following of the said statutory provisions, the Preliminary Registered Case is not tenable and accordingly the Criminal Petition is to be allowed. It is his further contention that there is no basis to say that the amount of Rs.5,00,000/- is related to any terrorist activity. It is his further contention that A-1 happened to be a Journalist and working President of the Working Journalists Union of Warangal District and Member of National Working Journalists Union and a false case was foisted against him by the police. 5. Therefore, the point for consideration is whether there are sufficient grounds to quash the proceedings as prayed? 6. Section 21 of the Act reads as follows : “Whoever knowingly holds any property derived or obtained from commission of any terrorist act or acquired through the terrorist fund shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.” 7. Section 43 of the Act provides : “Officers competent to investigate offences under Chapters IV and VI – Notwithstanding anything contained in the Code, no police officer : (a) in the case of the Delhi Special Police Establishment, constituted under sub-section (1) of Section 2 of the Delhi Special Police Establishment Act, 1946, (25) of 1946), below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank ; (b) in the metropolitan areas of Mumbai, Kolkata, Chennai and Ahemdabad and any other metropolitan area notified as such under sub-section (1) of Section 8 of the Code, below the rank of an Assistant Commissioner of Police ; (c) in any case not relatable to clause (a) or clause (b), below the rank of a Deputy Superintendent of Police or a police officer of an equivalent rank, shall investigate any offence punishable under Chapter IV or Chapter VI.” 8. Therefore, by virtue of Section 43 (c) of the Act notwithstanding anything contained in the Code, no Police officer below the rank of Deputy Superintendent of Police or an equivalent rank should investigate the offence punishable under Chapter IV or Chapter VI of the Act. 9. Section 45 of the Act provides : “Cognizance of offences – No court shall take cognizance of any offence : (i) under Chapter III without the previous sanction of the Central Government or any officer authorized by the Central Government in this behalf ; (ii) under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government and where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.” 10. Therefore, this provision makes it very clear that no Court shall take cognizance of any offence or offences covered by the Chapters IV and VI of the Act without the previous sanction of the Central Government or as the case may be of the State Government and where such offence is committed against a foreign country without the previous sanction of the Central Government. There is no dispute that no such sanction was obtained by the State Government in respect of the alleged offence covered by the Chapter IV of the Act. 11. Section 25 of the Act which gives powers to the investigating officer and Designated Authority to seize such case properties and the consequential action to be taken, reads as follows : “(1) If an officer investigating an offence committed under Chapter IV or Chapter VI, has reason to believe that any property in relation to which an investigation is being conducted, represents proceeds of terrorism, he shall, with the prior approval in writing of the Director General of the Police of the State in which such property is situated, make an order seizing such property and where it is not practicable to seize such property, make and order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order, or of the Designated Authority before whom the property seized or attached is produced and a copy of such order shall be served on the person concerned. (2) The investigating officer shall duly inform the Designated Authority within forty-eight hours of the seizure or attachment of such property. (3) The Designated Authority before whom the seized or attached property is produced shall either confirm or revoke the order of seizure or attachment so issued within a period of sixty days from the date of such production : Provided that an opportunity of making a representation by the person whose property is being seized or attached shall be given. (4) In the case of immovable property attached by the investigating officer, it shall be deemed to have been produced before the Designated Authority, when the investigating officer notified his report and places it at the disposal of the Designated Authority. (5) The investigating officer may seize and detain any cash to which this Chapter applies if he has reasonable grounds for suspecting that : (a) it is intended to be used for the purposes of terrorisms; or (b) it forms the whole or part of the resources of a terrorist organization : Provided that the cash seized under this sub- section by the investigating officer shall be released within a period of forty-eight hours beginning with the time when it is seized unless the matter involving the cash is before the Designated Authority and such Authority passes an order allowing its retention beyond forty-eight hours. Explanation: for the purposes of this sub-section, “cash’ means : (a) Coins or notes in any currency; (b) Postal orders: (c) Traveller’s cheques: (c a) credit or debit cards or cards that serve a similar purpose: (d) banker’s drafts; and (e) such other monetary instruments as the Central Government or, as the case may be, the State Government may specify by an order make in writing. (6) Any person aggrieved by an order made by the Designated Authority may prefer an appeal to the court within a period of thirty days from the date of receipt of the order, and the court may either confirm the order of attachment of property or seizure so made or revoke such order and release the property.” 12. Therefore, this provision makes it very clear that the officer who got authority to investigate the case by virtue of Section 43 (c) of the Act while investigating an offence committed under the Chapter IV or Chapter VI of the Act subject to having reasons to believe that any property in relation to which an investigation is being conducted represents proceeds of terrorism shall with the prior approval in writing of the Director General of Police of the State Government in which such property is situated make an order seizing such property …………… and further he should duly inform the Designated Authority within 48 hours of the seizure or attachment of such property and so on. Apparently when Section 25 of the Act read with Section 43 (c) of the Act provides that such a seizure should have been made by a Police officer not below the rank of Superintendent of Police or an equivalent rank person with the prior permission of the Director General of Police of the State subject to the compliance of other formalities noted therein the alleged seizure of the property by the Sub- Inspector of police is not valid. There is no basis to say that any approval was obtained by the Sub-Inspector of Police from the Director General of Police in this case for the seizure of the property and it is valid in any case. 13. The provisions enumerated above are mandatory and not directory in nature. A reading of these provisions makes it very clear that the restrictions discussed above with regards to the competency of taking up and conducting necessary investigation and seizure of such property and obtaining necessary sanction for prosecution were imposed by the Parliament in order to avoid false implication of innocent persons in respect of the offences punishable under the Act. It is easy to book such false cases creating a false story subject to availability of such property one way or the other for various reasons. There is no provision to the effect that any mistake committed in complying with any of these provisions can be ratified by a competent authority, whereas it appears that it is the intendment of the parliament to strictly implement the restrictions imposed. 14. It is quite surprising as to why the Sub-Inspector of Police who got no power of investigation of the case involved in seizing the property from A-1 and A-2 and further it is also quite surprising as to why necessary sanctions were not obtained for the prosecution of A-1 and A-2 and also necessary approval was not obtained from the Director General of Police, Andhra Pradesh for the seizure of the property from the so-called possession of A-1 and A-2, which in my opinion is fatal to the prosecution case in view of the circumstances narrated. Further, there is also no good material to the effect that the amount in question happened to be a property concerned in any terrorist activity. So, on this ground also the Criminal Petition is liable to be allowed. Accordingly, the Criminal Petition is allowed quashing the entire proceedings in P.R.C. No.42 of 2008, pending on the file of the Court of III Additional Judicial Magistrate of First Class, Warangal. However, it is observed that the learned Magistrate is directed to take necessary steps for the disposal of the money subject to the observations made above and also subject to the claim of the Accused. ___________________________ G. KRISHNA MOHAN REDDY, J Dated: 09-09-2011. Dsh. THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 134 CRIMINAL PETITION No.3996 OF 2008 September, 09 2011 DSH