ABDUL RAHEMAN Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned Additional State Public Prosecutor.

(2.) The appellant was the accused before the Trial Court. The case as alleged against the appellant by the prosecution is that on 30.03.2006, at about 3.50 p.m., the accused is said to have alighted from the Chennai-Mumbai train, at the Gulbarga Railway Station. It is stated that the Police Inspector, one D.C. Nandakumar, of the Station Bazaar Police Station was said to be on special duty along with a squad of officers and he had spotted the accused and on suspicion, had accosted him and on a search of his luggage, it is claimed that the accused was found in possession of a pistol, two hand grenades, books in Urdu and audio and video cassettes. It is claimed that the accused was further questioned as to his identity and background and the accused is said to have stated that he was originally a resident of Mumbai and that he was now residing in Goa and was visiting Gulbarga. And that he was dealing in children's toys. Not being satisfied with his explanation and on further interrogation and investigation, a case had been registered against the accused-appellant for offences punishable under Sections 121, 122, 124-A of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity) and Sections 10, 13, 18, 20, 21 and 23 of the Unlawful Activities (Prevention) Act, 1967 (Hereinafter referred to as the 'UAP Act', for brevity), and under Sections 4 and 5 of the Explosive Substances Act, 1908 (Herein-after referred to as the 'ES Act', for brevity) and Sec. 25 of the Arms Act, 1959. It was alleged by the prosecution that the appellant had after completing the Pre-University course at Mumbai, he had also learnt typing and undergone computer training and he had travelled to Oman in May 2001 and returned to Goa in Nov., 2001 and again went to Daman on 5.2.2002, where he had been indoctrinated about Jihad by Islamic leaders at centres there. And claiming to be a citizen of Pakistan, is said to have visited Pakistan. He had been trained at a Lashkar-e-Toiba (LeT) Training Centre at Rawalpindi which is said to be an outlawed terrorist outfit. Thereafter, he had studied the Kuran, Adis and had received training in handling sophisticated fire arms of all types. He had also been trained in disseminating information, inciting hatred against India via the internet and he had been trained in cartography and wireless radio transmission operation. Thereafter, in the year 2004, he had illegally entered Mumbai and had travelled to several cities including Hyderabad, Zahirabad and Gulbarga and had several financial transactions involving money transfers from outside the country, which was used as funding to recruit members for the LeT and was actively planning to cause destruction to dams, thermal power stations and other facilities in India. He was also travelling and visiting Mosques where he would deliver provocative speeches professing Jihad to the congregations. In December, 2005, he is said to have attempted to influence youth belonging to the Ahule Hadis Muslim community of Gulbarga inciting them to fight against India in the name of Jihad and to join the LeT organization. He is even said to have met leaders of the said organisation at Bangladesh, apart from travelling to Ahmedabad in March 2006 to bring explosives and grenades with a plan to carry out terrorist attacks and he was returning to Gulbarga, when he was apprehended. After further proceedings and upon committal to the Court of Sessions, the court had framed charges against the accused, who had pleaded not guilty and claimed to be tried. The prosecution which had named 60 witnesses, had examined 36 of them, as the other witnesses could not be secured as they were said to be unavailable as some of them had left the addresses furnished. The prosecution had marked as many as 108 documents, apart from 48 material objects. Thereafter, the statement of the accused, under Sec. 313 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity) having been recorded, the court below had framed the following points for consideration:

(3.) The learned counsel for the appellant would contend that there is no valid sanction obtained in initiating proceedings against the appellant under the provisions of the UAP Act. Attention is drawn to Sec. 45 of the UAP Act. In the absence of any previous sanction as provided therein, the entire proceedings were vitiated. He would contend that there is a document produced as Exhibit P.98, which is an order passed by the District Magistrate at the behest of the Investigating authority, granting permission to present the charge sheet against the appellant, in respect of the alleged offences committed under the provisions of the UAP Act, the IPC, the ES Act and the Arms Act. The District Magistrate was not an officer authorised by the Central Government or the State Government to grant such prior sanction in respect of offences punishable under the UAP Act. It is submitted that there is a Notification duly published in the Gazette of India dated 21.6.2007, whereby the Central Government has, in exercise of power conferred under Sec. 45 of the UAP Act, authorised the Secretaries of the State Government to exercise powers to sanction prosecution in respect of offences punishable under Chapter-III of the said Act. Even the said Notification, which was issued subsequent to the so-called sanction obtained in the present case on hand and therefore, there was no valid sanction in initiating proceedings against the appellant. It is also contended that the proceedings against the appellant are vitiated for yet another reason. In the present case on hand, the initial investigation is conducted by a Police Inspector and the subsequent investigation by an Additional Superintendent of Police, which is also opposed to Sec. 43 of the UAP Act. It is pointed out that the prosecution has not at all made out a case against the accused in the manner as alleged, as can be seen from the following infirmities: There is an inordinate delay in lodging the FIR and the delay not having been explained by any acceptable and cogent reason, it would prove fatal to the case of the prosecution. The law is settled in this regard by a Constitution Bench judgment of the Supreme Court in Lalita Kumari v. Government of UP, (2014) 2 SCC 1) : (AIR 2014 SC 187). It is pointed out that there are no eye witnesses examined at the trial in respect of any alleged illegal activity carried on by the appellant. There are a host of witnesses who have turned hostile and therefore have completely diluted the case of the prosecution. Namely, PW.3, an auto driver who was examined as a panch witness in respect of Exhibit P.8, namely, the spot mahazar. PW.5, the owner of an Internet Browsing Centre, where the appellant had allegedly sent and received the coded messages. As also PW.6, who was employed in the said Internet Browsing Centre and he has denied his statement recorded at Exhibit P. 10. PW.8, who was running a footwear business located near the Station Bazar Police Station, Gulbarga, was a panch witness to Exhibit P.l 1, the spot mahazar, in respect of the alleged defusing of a bomb that was being carried by the appellant. PW.9, a student whose statement had been recorded at Exhibit P. 12, to the effect that the appellant was known to visit the Internet Browsing Centre, belonging to his brother-in-law, had resiled from the statement. PW.10, another employee of the Internet Cafe had denied the statement at Exhibit P. 13 of having seen the appellant. PW.17, a panch witness in respect of the seizure mahazar pertaining to material objects, MOs. 10 and 11. PW. 19, an auto driver had denied the statement in Exhibit P.8 as regards the arrest of the appellant. It is further pointed out that the evidence of PWs. 15, 21 and 24 do not support the case of the prosecution. It is further pointed out that the prosecution has relied heavily on the report that was obtained after having conducted the brain mapping and a narco-analysis test on the appellant in eliciting information from him, which is clearly in total violation of the law as laid down by the Supreme Court in Selvi Vs. State of Karnataka, AIR 2010 SC 1974. It is pointed out that the allegations were the same in respect of the offences alleged under the provision of the UAP Act as well as the provisions of the IPC. The offences punishable under Sections 122 and 124A of the Penal Code were held proved. The offence alleged under Sec. 120-B of the Penal Code was not even pressed and was dropped by the prosecution at the initial stage itself. It is hence, inexplicable that the appellant having been acquitted of all the offences punishable under the UAP Act, could be convicted, on the same set of facts and on the same set of allegations, under the IPC. The reasoning of the trial court in this regard is, therefore, irreconcilable and inexplicable. The serious allegation of the appellant being a terrorist, who was trained in Pakistan not having been proved, it cannot be said that the appellant could be convicted merely on surmises without any material evidence. The reasoning of the court below is hence, perverse and without any foundation and has resulted in a gross miscarriage of justice. In the face of the finding of the court below that the appellant was not proved to be a member of the LeT and having been acquitted of the offences punishable under the UAP Act, the appellant could not have been convicted for the offences punishable under Sections 121, 122 and 124A of the IPC. In the absence of any evidence, that the appellant was a member of any terrorist organisation or any other organisation, which was banned by a Notification issued by the Central Government of India, the trial court's reasoning that the appellant had come to Mumbai unauthorisedly is without any basis. PW.36, the Additional Superintendent of Police, had categorically admitted that he was unable to collect materials to show that the appellant had undergone training in Pakistan and there was no corresponding entry in the passport of the appellant about his entry into India and therefore, there was no basis for the conclusion that the appellant had illegally entered India. Insofar as the appellant having been convicted under Sections 4 and 5 of the ES Act, a panch witness PW.25 has not stated about the seizure of any hand grenades and therefore there was no evidence to indicate that the appellant was in possession of explosive substances. The only statement made by PW.25 was that a pistol was seized from the appellant. Insofar as the appellant being funded as a terrorist through PWs. 1.11 and 12, who have spoken about such money transfers from abroad to the appellant in India, there is no evidence produced to demonstrate that the source was from any criminal or a member of a banned organisation. The literature seized were claimed to be incriminating material. Except the allegation that the books seized were in Urdu, there was no evidence about the contents of the books being incriminating. The witnesses examined to establish that the appellant was given to making provocative speeches after 'namaz' at the mosques that he visited for prayers, had turned hostile, namely, PWs.3,5 and 6. Even PW.7 had merely stated that he had visited the mosque for prayers, which could not be termed as an offence. It is pointed out that Pws.8, 9 and 10 had also turned hostile. It is also contended that the evidence of PW. 13 was to the effect that he had seen a bomb being defused and even at that point of time a panchnama was drawn up and was marked as Exhibit P. 11, but however, the presence of the appellant is not mentioned nor of the complainant who was the Police Inspector. Nor is it indicated that the Police Inspector had sought the assistance of any expert before opening the bag containing hand grenades in the police station itself, though it is stated by PW.27 that the appellant had informed him that it would be dangerous to open the bag. Therefore, the circumstance sought to be made out by the prosecution as to the bomb being defused is seriously doubtful as to whether the same was seized from the possession of the appellant. It is also pointed out that the evidence of PW.14, who was said to be the owner of a house at Zahirabad, where the appellant had stayed for 26 days, by itself would not establish that the appellant had committed any crime. It is further pointed out that from a reading of the evidence of PW. 15, who had stated that the appellant had visited a mosque at Hyderabad on two occasions and insisted on addressing a gathering, it is seen that he has not tendered any evidence to the effect that the appellant had even remotely suggested that a war was to be waged against the Union of India or any such similar speech inciting the congregation to indulge in terrorist activities. PW. 16, a Head Constable was examined to translate the contents of Exhibit P.15Ainto the Kannada language. The translation did not disclose the name of the appellant nor that he was the author nor was there any evidence on record that the same had been distributed by the appellant and that the contents of the document signified the indication to involve youth of his community in terrorism. PW.20 was a panch witness to the panchnama at Exhibit P. 16 pertaining to the search and seizure of the material in the house of the appellant. It is significant that no incriminating material had been seized. Therefore, it is contended that the above as well as other infirmities would indicate that the trial court has convicted the appellant and has sentenced him to life imprisonment with fine, only on suspicion and presumptions, which the prosecution had freely urged as being established facts and which the trial court has mechanically accepted. The learned counsel, therefore, seeks the acquittal of the accused.