Unlawful Activities (Prevention) Act

Case BriefsHigh Courts

Kerala High Court: In an interesting case the Division Bench comprising of A. Hariprasad and M. R. Anitha, JJ., had granted bail to the accused of terrorist activities. All the accused were booked for gold smuggling with an intention to destabilize the economy of the nation under the Unlawful Activities Prevention Act, 1967 (UAPA).

The instant appeal was filed against the order of Trial Court, whereby the Court had granted bail to all the accused except the accuse 7. National Investigation Agency (NIA) had registered the above-mentioned case alleging offences punishable under Ss. 16, 17 and 18 of UAPA. Accused persons were arrested by NIA on different dates and they had been confined to custody for a considerable time.

Allegations raised by the investigating agency was that on 05-07-2020, the officers of the Customs Department seized 30kgs of 24 carat gold, from International Airport, Thiruvananthapuram, secreted in a consignment camouflaged as diplomatic baggage sent from United Arab Emirates (UAE). It was alleged that the gold was smuggled through the diplomatic channel pursuant to a conspiracy hatched by the accused persons. It had been argued that the smuggled gold could have been used for financing terrorist activities in India or to destabilizing the economic security of India.

Interpretation of “Terrorist Activities”

The Bench interpreted the scope of Section 15 of UA(P) Act. Section 15(1) had mentioned that “whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security or sovereignty of India through any of the modes specified in Clauses (a), (b) or (c) commits a terrorist act.”

Similarly, under Sub-clause (iiia) to Section 15(1)(a) it had been established that “by any means of whatever nature if any damage to the monetary stability of India is caused or likely to be caused by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material, then also it will amount to a terrorist act.”

The Court discerned from Section 15(1)(a)(iiia) that what become a terrorist act thereunder was causing damage to the monetary stability of India by producing high quality counterfeit Indian paper currency, coin or any other material or smuggling of high quality counterfeit Indian paper currency, coin or any other material or circulating high quality counterfeit Indian paper currency, coin or any other material.

Whether “Any other material” under Section 15(1)(a)(iiia) would include gold smuggling?

It was contended by the appellant that high-quality counterfeit Indian paper currency or coin could not be disassociated or separated from the words “any other material”. The Bench while applying statutory rules of interpretation stated that it would be apposite to consider the wafer-thin distinction between “noscitur a sociis” and “ejusdem generic”. High-quality counterfeit Indian paper currency, coin or any other material should be read and understood as anything directly related to currency or coin.

Further, the Bench expressed, the legislature must had been aware of the existence of the Customs Act when it amended Section 15. Non-inclusion of the Customs Act in the Schedule to NIA Act also must be regarded as a conscious act by the legislature. Therefore, the Court said that by applying the above-mentioned rules of interpretation that smuggling of gold simplicitor would fall within Section 15(1)(a) (iiia) of UA(P) Act. The Bench said,

Gold smuggling clearly covered by the provisions of the Customs Act would not fall within the definition of Terrorist Act in Section 15 unless evidence was brought out to show that it was done with the intent to threaten or it was likely to threaten the economic security or monetary stability of India.

  “Other material” could be any material connected to counterfeit Indian paper currency or counterfeit Indian coin, like machinery or implements or high-quality paper or any other material which could be used for producing or circulating fake currency or coin. Noticing the arrangement of words indicating the things mentioned in the provision, the Court refused to accept gold smuggling with a mere illegal profit motive would fall within the aforementioned definition of the Terrorist Act. The Bench stated,

“It does not include gold as the words employed in the Sub-clause specifically mention about production or smuggling or circulation of high quality counterfeit Indian paper currency or coin and therefore gold cannot be grouped along with paper currency or coin even though gold is a valuable substance and has a great potential to get converted into cash.”

 Differentiating the judgment of Rajasthan High Court in Mohammed Aslam v. Union of India, 2021 SCC OnLine Raj 117, wherein it was held that smuggling of gold with intent to threaten or likely to threaten the economic security of the country was covered under the smuggling of “any other material”, the Bench said, it could be made out from the decision that no analysis of the provision was made by the Single Judge. Moreover, no specific reason had been stated for making the aforementioned observations.

Hence, the Bench affirmed the view hold by the Trial Judge that the materials produced before the court at that point of time were insufficient to hold prima facie that the accused persons had committed a terrorist act. Therefore, it had been held that there was no reason to think that the accused to whom bail had been granted will flee from justice or meddle with the investigation. Consequently, the appeal was dismissed and the bail order was affirmed.[Muhammed Shafi P., v. National Investigation Agency, 2021 SCC OnLine Ker 902, decided on 18-02-2021]

Kamini Sharma, Editorial Assistant has put this story together

Legislation UpdatesNotifications

Central Government had amended the Unlawful Activities (Prevention) Act, 1967 in August 2019, to include the provision of designating an individual as a terrorist. Prior to this amendment, only organizations could be designated as terrorist organizations.

The Union Home Minister, Amit Shah has unequivocally reaffirmed the nation’s resolve to fight terrorism. By invoking the said amended provision, the Central Government designated four individuals in September, 2019 and nine individuals in July, 2020 as terrorists.

Reinforcing the commitment of strengthening national security and its policy of zero tolerance to terrorism, the Modi Government today has declared the following eighteen more individuals as designated terrorists, under the provisions of the UAPA Act 1967 (as amended in 2019) and included their names in the Fourth Schedule of the said Act. Their details are as under:

1. Sajid Mir @ Sajid Majeed @ Ibrahim Shah @ Wasi @ Khali @ Muhammad Waseem

 

 Pakistan based top LeT Commander and was one of the main planners of the 26/11 Mumbai terror attack.
2. Yusuf Muzammil @ Ahmad Bhai @ Yousuf Muzammil Butt @ Hurreira Bhai

 

 Pakistan based Commander of LeT operations in Jammu & Kashmir and accused in the 26/11 Mumbai Terror attack.
3. Abdur Rehman Makki @ Abdul Rehman Makki

 

 Brother-in-law of Hafiz Saeed, Chief LeT and Head of LeT political affairs and served as Head of LeT’s foreign relations department.

 
4. Shahid Mehmood @ Shahid Mehmood Rehmatullah

 

 Pakistan based Deputy Chief of proscribed organization Falah-i-lnsaniyat Foundation (FIF), a frontal organisation of terror organisation Lashkar-e-Taiba (LeT).

 
5. Farhatullah Ghori @ Abu Sufiyan @ Sardar Sahab @ Faru

 

 Pakistan based terrorist and was involved in attack on Akshardham Temple (2002) and Suicide attack on Task Force office in Hyderabad (2005).
6. Abdul Rauf Asghar @ Mufti @ Mufti Asghar @ Saad baba @ Maulana Mufti Rauf Asghar

 

 Pakistan based terrorist, involved in Setting up of training camps in Pakistan for recruitment and militant training and Key conspirator in the terrorist attack (13.12.2001) on the Indian Parliament House, New Delhi.

 
7. Ibrahim Athar @ Ahmed Ali Mohd. Ali Shaikh @ JavedAmjad Siddiqui @ A.A. Shaikh@ Chief

 

 Pakistan based terrorist, involved in the hijacking of the Indian Airlines Flight No. lC-814 on Dec. 24, 1999, (Kandhar hijacking case) and also the key conspirator in the Indian Parliament terrorist attack (13.12.2001).

 
8. Yusuf Azhar @ Azhar Yusuf @ Mohd. Salim

 

 Pakistan based terrorist, involved in the hijacking of the Indian Airlines Flight No. lC-814 on Dec. 24, 1999 (Kandhar hijacking case).

 
9. Shahid Latif @ Chota Shahid Bhai @ Noor Al Din

 

 Pakistan based terrorist and JeM’s Commander of Sialkot sector, involved in launching of JeM terrorists into India. He is also involved in planning, facilitation and execution of terror attacks in India.
10. Syed Mohammad Yusuf Shah @ Syed
Salahudeen @ Peer Sahab @ Buzurg 		 Pakistan based, Supreme Commander of Hizb-ul-Mujahideen and Chairman, United Jihad Council (UJC) Involved in fund raising and routing finances to India for furtherance of terrorist activities by HM cadres
11. Ghulam Nabi Khan @ Amir Khan @ Saifullah Khalid @ Khalid Saifullah @ Jawaad @ Daand

 

 Pakistan based, Deputy Supreme of Hizbul Mujahideen (HM).
12. Zaffar Hussain Bhat @ Khursheed @ Mohd. Zafar Khan @ Moulvi @ Khursheed Ibrahim

 

 Pakistan based, Dy. Chief, Hizbul Mujahideen and also handles Financial affairs of Hizbul Mujahideen.  Responsible for sending funds for HM operatives in the Kashmir Valley.
13. Riyaz Ismail Shahbandri @ Shah Riyaz Ahmed @ Riyaz Bhatkal @ Md. Riyaz @ Ahmed Bhai @ Rasool Khan @ Roshan Khan @ Aziz Pakistan based, Founder member of terrorist organization “Indian Mujahideen”. Involved in various terrorist acts in India including German Bakery (2010), Chinnaswami Stadium, Bangalore (2010) , Jama Masjid (2010), Sheetlaghat (2010) and Mumbai (2011) etc.
14. Md. Iqbal @ Shabandri Mohammed Iqbal @ Iqbal Bhatkal Pakistan based Co-founder of the terrorist organization, Indian Mujahideen (IM).  Involved in terror financing and various terrorist acts including Jaipur Serial Blasts (2008), Delhi Serial Blasts (2008), Serial Blasts of Ahmedabad and Surat (2008), German Bakery Blast, Pune of (2010) and Chinnaswami Stadium, Bengaluru Blasts (2010) etc.
15. Shaikh Shakeel @ Chhota Shakeel Pakistan based Associates of Dawood Ibrahim, looks after all criminal and underworld operations of D-Company.  Finances D-Company operatives of India. Involved in the smuggling of firearms to Gujarat, India, during 1993.
16. Mohammad Anis Shaikh

 

 Pakistan based terrorist, involved in Bombay Bomb Blast Case, 1993 and responsible for the supply of arms, ammunition and hand grenades.

 
17. Ibrahim Memon @ Tiger Memon @ Mushtaq @ Sikander @ Ibrahim Abdul Razak Memon @ Mustafa @ Ismail Pakistan based terrorist, hatched the criminal conspiracy of the Bombay Bomb Blast Case.
18. Javed Chikna @  Javed  Dawood Tailor Pakistan based Associate of Dawood Ibrahim Kaskar, involved in Bombay Bomb Blast case, 1993.

These individuals are involved in various acts of terrorism from across the border and have been relentless in their nefarious efforts of destabilizing the country.

Ministry of Home Affairs

[Source: PIB]

Case BriefsHigh Courts

Jharkhand High Court:  A Division Bench of H.C. Mishra and Rajesh Kumar, JJ., dismissed the appeal being devoid of merits.

The facts of the case are that secret information was received by the police regarding the extortion of levy by the banned terrorist organization Tritya Prastuti Committee, in the coal region of Amrapali / Magadh Project of Central Coalfield Ltd., from the contractors, transporters, D.O. holders and coal traders. Subsequently, on the investigation, the house of one Binod Kumar Gupta was raided and amount of Rs 91,75,890/- with two mobile phones recovered and on whose disclosure the present appellant’s house was raided and Rs 57, 57,710/- and four cell phones were recovered. Pursuant to this, a case was instituted under Sections 414, 384, 386, 387 and 120-B of the Penal Code, 1860, Sections 25(1B) (a), 26 & 35 of the Arms Act, 1959 and Section 17(1) (2) of the Criminal Law Amendment Act and the appellant was thereby arrested. Thereafter, he filed a bail application before Judicial Commissioner-cum- Special Judge (NIA), Ranchi which was rejected. Aggrieved by which, the instant appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008 seeking bail.

Counsel for the petitioners R. S. Mazumdar and Kumar Basant Narayan submitted that the appellant is innocent and the money recovered by him is relating to his business which has a turnover of Rs 1 crore even on the day of arrest and therefore he has been falsely implicated. It was further submitted that the appellant was already on bail for the same occurrence/offence but when the NIA added offences, under the Unlawful Activities (Prevention) Act the appellant was again taken into custody, and hence he ought to have been enlarged on bail.

Counsel for the respondents Rohit Ranjan Prasad presented the evidence that clearly established the involvement of the appellant in the present matter. The materials placed on record by the NIA after investigation prima facie declared his close association with the banned terrorist organization and being actively involved in extortion. It was further submitted that the appellant also has a criminal history and hence the impugned order was correct and not illegal.

The Court observed that there is a clear bar in granting bail, under Section 43-D (5) of the Unlawful Activities (Prevention) Act, once the accusation is found to be prima facie true and on this ground, the appellant does not deserve the privilege of bail.

In view of the above, bail was rejected and the appeal dismissed.[Pradeep Ram v. Union of India, 2020 SCC OnLine Jhar 792, decided on 14-09-2020]

Arunima Bose, Editorial Assistant has put this story together

Case BriefsDistrict Court

Patiala House Court, New Delhi:  While deciding the instant bail application of student activist Safoora Zargar, who was accused of giving inflammatory speeches, thereby inciting riots and violence in North East Delhi and was arrested and taken into custody under the provisions of the Unlawful Activities (Prevention) Act, 1967 [hereinafter UAPA], Dharmendar Rana, ASJ, refused to grant her the bail. Furthermore, pointing out that although no direct violence is attributable to the applicant/ accused, still she cannot shy away from her liabilities.

The Court said that, “When you choose to play with embers, you cannot blame the wind to have carried the spark bit too far and spread the fire”. However, taking note of the accused/ applicant’s pregnancy, he requested the Jail Superintendent to provide adequate medical aid and assistance to her.

The applicant/accused is a student of Jamia Milia University. It was alleged by the prosecution that she delivered an inflammatory speech at Chand Bagh area of North East Delhi. Aftermath of which, riots erupted leading to a great loss of life and property. As per the submissions of the Additional Public Prosecutor, Irfan Ahmed, there is enough evidence available on record to connect the applicant/ accused to the riots. It was further submitted that Section 43D (5) of the UAPA places a statutory restriction on the power of the Courts to release the applicant/ accused on bail. The prosecution further pointed out that certain incriminating materials were seized by the police and if this recovery is viewed against the backdrop of the inflammatory speeches given by the applicant/ accused and statements of the witnesses, then it is clear that the riots were a result of a conspiracy to overawe the government and disrupt the normal functioning of the capital city. Thus under these circumstances, the applicant- accused should not be granted bail.

Meanwhile, counsel for the applicant/accused, Sanya Kumar, contended that the applicant/accused is an innocent woman who has a contrary opinion on the Citizenship Amendment Act (hereinafter CAA) and had simply exercised her fundamental right under Article 19(1)(a) of the Constitution by being involved in a peaceful protest against the CAA. She further pointed out to the court that the applicant/accused delivered her speech on 23-02-2020 and riots started in the afternoon of 24-02-2020. The evidences clearly suggest that the applicant was not present on 24-02-2020, therefore the alleged violence cannot be attributed to her and the provisions of the UAPA have been wrongly invoked against her. The counsel also contended that the applicant/ accused should be granted bail on humanitarian grounds as she is 21 weeks pregnant and suffers from various other medical complications and given the spread of Covid-19, the applicant/ accused is particularly vulnerable.

Perusing the contentions of both the parties, the Additional Sessions Judge observed that freedom of speech and expression is indeed a foundation for strong and vibrant democracy, however the same is not an absolute right and is subject to the reasonable restrictions laid down in Article 19(2) of the Constitution. Considering the provisions of the UAPA, the Court observed that any activity which creates a disorder and disturbance of law to such an extent that an entire city is “brought down to its knees”, constitutes an ‘unlawful activity’ under Section 2(o) of the UAPA. Concurring with the contentions of the prosecution, the Court noted that it cannot ignore the material available on record which clearly suggests that there was a conspiracy to create an unprecedented scale of destruction and breakdown of law and order. Finding no merits, the Court thus dismissed the bail application. [State v. Safoora Zargar, Bail Application No. 1119/2020 , decided on 04-06-2020]

Hot Off The PressNews

The Editors Guild of India has noted with shock and concern the high-handed manner in which the law enforcement agencies in Jammu & Kashmir have used the prevailing laws to deal with two Srinagar-based journalists, Masrat Zahra, a young freelance photographer, and Peerzada Ashiq, a reporter working for The Hindu.

While only an FIR has been filed in connection with a report filed by Peerzada Ashiq, the authorities in the union territory have used the Unlawful Activities Prevention Act against Masrat Zahra.

Any recourse to such laws for merely publishing something in the mainstream or social media is a gross misuse of power. Its only purpose can be to strike terror into journalists. The Guild also believes that this is an indirect way of intimidating journalists in the rest of the country as well.

The journalists should be put to no harm or further harassment. If the government has any grievance against their reporting, there are other ways of dealing with such issues in the normal course. Mere social media posts of factual pictures can’t attract the toughest anti-terror laws passed for hardened terrorists. And in the case of The Hindu reporter, the correct course was to escalate the complaint to the newspaper’s editor.

The Guild demands that the Union Territory administration of Jammu & Kashmir withdraw the charges forthwith.

Editors Guild of India

[Statement dt. 21-04-2020]

Legislation UpdatesNotifications

In exercise of the powers conferred by clause (a) of sub-section (1) of Section 35 of the Unlawful Activities (Prevention) Act, 1967, the Central Government hereby makes the following amendment in the Fourth Schedule to the said Act and declares the following as terrorists.

  • Maulana Masood Azhar @ Maulana Mohammad Masood Azhar Alvi @ Vali Adam Issa is founder, chief and key leader of proscribed terrorist organisation Jaish-e-Mohammad, which is listed as a terrorist organisation under the First Schedule to the Unlawful Activities (Prevention) Act, 1967
  • Hafiz Muhammad Saeed @ Hafiz Mohammad Sahib @ Hafiz Mohaddad Sayid @ Hafiz Muhammad @ Hafiz Saeed @ Hafez Mohammad Saeed @ Hafiz Mohammad Sayeed @ Mohammad Sayed @ Muhammad Saeed is founder, chief and key leader of proscribed terrorist  organisation Lashkar-e-Taiba (LeT) / Jamat-ud-Dawa (JuD)
  • Zaki-ur-Rehman Lakhvi @ Abu Waheed Irshad Ahmad Arshad @ Kaki Ur-Rehman @ Zakir Rehman Lakhvi @ Zaki-Ur-Rehman Lakvi @ Zakir Rehman is the chief operational commander of Lashkar-e-Taiba (LeT) and also one of its founder members
  • Dawood Ibrahim Kaskar @ Dawood Hasan Shiekh Kaskar @ Dawood Bhai @ Dawood Sabri @ Iqbal Seth @ Bada Patel @ Dawood Ebrahim @ Sheikh Dawood Hassan @ Abdul Hamid Abdul Aziz @ Anis Ibrahim @ Aziz Dilip @ Daud Hasan Shaikh Ibrahim Kaskar @ Daud Ibrahim Memon Kaskar @ Dawood Hasan Ibrahim Kaskar @ Dawood Ibrahim Memon @ Kaskar Dawood Hasan @ Shaikh Mohd Ismail Abdul Rehman @ Dowood Hassan Shaikh Ibrahim @ Dawood Bhai Low quality @ Ibrahim Shaikh Modh Anis @ Shaikh Ismail Abdul @ Sheikh Farooqi @ Iqbal Bhai runs an international underworld crime syndicate and is involved in perpetrating acts of terror, promoting religious fundamentalism, terror financing, arms smuggling, circulation of counterfeit currency, money laundering, narcotics, extortion and benami real estate business in India and abroad and is also involved in assassination attempts on prominent personalities to create social disharmony and terrorise common man.

*Please follow the link to read the detailed notification.

Ministry of Home Affairs

[Notification dt. 04-09-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Rashid Ali Dar, J. allowed an appeal against an order of the lower courts whereby appellant’s bail application had been rejected.

In the instant case, one of the accused had received some money from his cousins and handed over the same to the appellants so as to pass on the same to the militants for continuing their militant activities. The accused were charged under the Unlawful Activities (Prevention) Act, 1967 (the Act). The appellants applied for bail in the Trial Court which was disallowed. Thereon, they preferred an application for grant of bail before the Court of learned Additional Sessions Judge, Srinagar, which too was dismissed holding, ” the very seriousness of the offence alleged is sufficient ground to reasonably believe that the accused may misuse his liberty by interference with the evidence that may be available in the case, if possible or by absconding if tempering is not possible.”

The learned counsel for the respondents, Javaid Iqbal, challenged the maintainability of this appeal while relying on Sections 21 and 22 of the National Investigation Agency Act, 2008 read with Section 43-D of the Act. Whereas, M. A. Qayoom, the learned counsel for the appellants, argued that both the sections should be read independently of each other. He further argued that the learned trial Judge and the Addl. Sessions Judge had not examined the matter in its proper perspective and had declined bail to the appellants on flimsy grounds. He contended that in the instant case the appellants completed 90 days in police custody without the ‘challan’ being filed against them, on that ground the appellants were entitled to bail after the expiry of period of 90 days relying on Section 167(2) of CrPC as the police had to complete the investigation within 90 days on failure of which appellants were entitled to bail. 

The Court relied on the judgment of the Apex Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, and held, “the learned Additional Sessions Judge was required to examine the contention raised on behalf of the appellants herein for grant of bail by applicability of the default clause of Section 43 (D) of the Unlawful Activities (Prevention) Act 1967 which he having not done.” The Court observed that, “Since the investigating agency has omitted to file final report in terms of Section 173 Cr PC within the time prescribed under Section 167(2) of CrPC, the appellants whose appeal is now treated as petition for bail are held entitled to default bail.” 

It was held that “the bar created under Section 43 of the Act would not come in the way of petitioner to seek enforcement of default bail, as their further detention is not permissible.” Thus, the Court admitted the bail of the appellants with the condition of furnishing security to the tune of Rs 50,000/- with one surety in the like amount and not to leave the State without Court’s permission. [Abdul Rehman Mir v. State of J&K, 2019 SCC OnLine J&K 420, decided on 08-05-2019]

Case BriefsHigh Courts

Delhi High Court: Siddharth Mridul, J. dismissed an appeal filed under Section 21(4) of the National Investigation Agency Act, 2008 assailing an order passed by the Additional Sessions Judge whereby the appellant’s bail application was rejected.

The appellant was standing trial under Sections 18, 18-B and 20 of the Unlawful Activities (Prevention) Act, 1967. M.S. Khan and Prashant Prakash, Advocates representing the appellant asserted that he was entitled to be released on bail ex debito justitiae. Per contra, Ravi Nayak, Assistant Public Prosecutor appeared for the State.

At the outset, the High Court observed that relevant provision of the Unlawful Activities (Prevention) Act, in relation to grant of bail to an accused person is enunciated as a non-obstante clause, which clearly and unequivocally postulates: “if the Court is of the opinion that, there are reasonable grounds for believing that the accusations against such person are prima facie true, he shall not be released on bail.” Further, the provision stipulates that the restrictions contained in Section 437 (1) CrPC, are also applicable.

The order on charge led the Court to an inescapable conclusion that of a prima facie involvement of the appellant in grave and serious offences which attract a sentence that may extend to imprisonment for life upon conviction. Furthermore, a perusal of the report under Section 173 CrPC filed against the appellant and the circumstance that he was declared a ‘proclaimed offender’ in the present proceedings, as well as, his propensity to furnish fabricated documents, suffice in our view to believe that, he represents a flight risk.

In such view of the matter, no interference with the impugned order was warranted, and consequently, the appeal was dismissed. [Syed Mohd. Zishan Ali v. State (NCT of Delhi), 2019 SCC OnLine Del 8396, decided on 29-04-2019]

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Karuna Nand Bajpayee and Ifaqat Ali Khan, JJ. dismissed a petition seeking quashing of a First Information Report filed against the petitioner for offences committed under Sections 148, 307, 353 and 504 of Indian Penal Code, 1860, and Section 7 of the Unlawful Activities (Prevention) Act, 1967.

The Court observed that grounds for quashing of FIR are well-settled, and thus in such cases court must refrain itself from embarking upon a roving enquiry into details of the case. It was noted that all the contentions raised by the petitioner’s counsel related to the determination of disputed questions of fact which may be adequately discerned either through proper investigation or adjudicated by the trial court. The ambit of an investigation into the alleged offence is an independent area of operation and does not call for interference except in rarest of rare cases. Relying on Ajit Singh v. State of Uttar Pradesh, 2006 SCC OnLine All 1409 it was opined that operational liberty to collect sufficient material, if any, cannot be scuttled prematurely by any uncalled for overstepping of the Court. 

The Court held that perusal of the case records, prima facie, made out the offence alleged and there appeared to be sufficient ground for investigation in the case. In view thereof, prayer for quashing FIR was refused. However, it was directed that the petitioner shall not be arrested unless credible evidence against him is collected by the Investigating Officer.[Umar Mohd. v. State of U.P, Criminal Misc. Writ Petition No. 330 of 2019, Order dated 08-01-2019]

Case BriefsHigh Courts

Madras High Court: The High Court recently dealt with a petition for bail under S. 439 of the CrPC wherein the petitioner-accused was arrested and remanded to Judicial Custody for commission of offenses under Sections 120(B), 153(A), 353 and 307  IPC along with Sections 4 and 5 of the Explosive Substances Act, 1908 (Amendment Act 54 of 2001) which essentially deal with punishment for causing explosion or making/ keeping explosives with the intent to endanger life or making or possessing explosives under suspicious circumstances and Sections 10, 14 and 16(1)(b) of the Unlawful Activities (Prevention) Act, 1967 which again, in essence, deal with punishment for being part of any unlawful association or penalty for commission of any terrorist act.

The facts of the case involve the petitioner who had previously been accused of planting pipe bomb to assassinate Shri L.K. Advani at Madurai while the latter was on his tour and hence, already had a non-bailable warrant pending against him when the Investigating Officer was made aware of his whereabouts in Badlagundu. On trying to execute the warrant, the petitioner attacked the Officer but couldn’t cause any harm and was eventually taken to the Thirumangalam Taluk Police Station. On interrogating him, he confessed to have concealed explosives/weapons etc. On further investigation, the weapons were revived from a place nearby the spot of the petitioner’s arrest following which the aforementioned sections were invoked against him.

S.M.A Jinnah, counsel on behalf of the petitioner argued that the prosecution’s case was false due to various discrepancies such as that the petitioner was only remanded on a much later date from the date of occurrence of the alleged incident. At an even later date, the charges were altered and the case was committed to the Sessions Court together on the very same day. The petitioner hence contended that the alleged incident never even took place. He also put forth another contention that since he had been enlarged on bail in all other cases, including for the pipe bombing one by the High Court and had been in prison for more than 3-and-a-half years, he should be granted bail.

Mr. Raja Rathinam, the Public Prosecutor argued that there exist reasonable grounds for believing that the accusations against the petitioner are prima facie true owing which the he shouldn’t be granted bail as is prescribed under S. 43D(5) of the Unlawful Activities (Prevention Act), 1967. He not only tried to resist the execution of the Warrant but his confessions also led to recovery of various explosives etc which were in his possession. It was also clarified that only the formal arrest was shown on the records at a later stage and the alteration in the charges took place due to the discovery of the explosive weapons etc.

The Court thus held that there existed sufficient reasonable grounds to believe the prima facie truth in the case of the prosecution and hence, bail couldn’t be granted. Dr. G. Jayachandran, J. observed that it was clear from the case that the accused was indeed absconding from the process of law and obstructed the execution of the warrant against him along with the recovery of several explosive substances, all of which lead to the conclusion that these constitute reasonable belief about prima facie truth. [Mohamed Hanifa @ Thenkasi Hanifa v. State, 2017 SCC OnLine Mad 2902, decided on 27.06.2017]