{"id":214103,"date":"2019-04-30T13:30:38","date_gmt":"2019-04-30T08:00:38","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=214103"},"modified":"2019-05-07T10:52:14","modified_gmt":"2019-05-07T05:22:14","slug":"ker-hc-panayikulam-simi-camp-case-five-persons-convicted-by-nia-special-court-for-holding-secret-meeting-of-banned-outfit-acquitted-by-hc","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2019\/04\/30\/ker-hc-panayikulam-simi-camp-case-five-persons-convicted-by-nia-special-court-for-holding-secret-meeting-of-banned-outfit-acquitted-by-hc\/","title":{"rendered":"Ker HC | Panayikulam SIMI Camp Case: Five persons convicted by NIA Special Court for holding secret meeting of banned outfit, acquitted by HC"},"content":{"rendered":"

Kerala High Court: <\/strong>The Division Bench of A.M. Shaffique and Ashok Menon, JJ. hearing 6 criminal appeals clubbed together, acquitted five persons who were convicted by National Investigation Agency (NIA) Special Court in 2016 for organizing a meeting of the banned outfit Students Islamic Movement of India (SIMI) in 2006.<\/p>\n

Factual background of the case was that 17 people had assembled and organized a secret meeting in \u2018Happy Auditorium\u2019 at Panayikulam on Independence Day in 2006. Allegedly, they carried books and pamphlets of Students Islamic Movement of India (SIMI) \u2013 a banned organization \u2013 containing seditious, anti-national and inflammatory writings, and advocated for cession of Kashmir through jihad and for bringing back Muslim rule in India. It was alleged that they entered into a criminal conspiracy and committed an act of sedition with the intention to bring hatred and contempt against the Government of India. They were charged for offences under Sections 120B (criminal conspiracy)<\/em> and 124A (sedition) <\/em>of the Penal Code, 1860 and Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967 (membership of unlawful organization and taking part in unlawful activities)<\/em>.<\/p>\n

The case was initially investigated by local police, but taken over by NIA in 2008. A charge sheet was filed in 2011 against 16 accused. NIA Special Court sentenced Abdul Rasik (2nd<\/sup> accused) and Ansar (3rd<\/sup> accused) to 14-years rigorous imprisonment, while other three accused \u2013 P.A. Shaduly (1st<\/sup> accused), Nizamudeen (4th<\/sup> accused) and Shammi (5th<\/sup> accused) \u2013 were sentenced to 12 years of jail. Chargesheet against one juvenile-accused was filed in the Juvenile Justice Board. Rest of the 11 accused were acquitted. The six criminal appeals herein are \u2013 appeal filed by NIA through State challenging acquittal of the 11 accused; 4 appeals filed by accused challenging their conviction and one appeal filed by the juvenile-accused.<\/p>\n

Main contention advanced by the learned counsel on behalf of the accused was that there was no evidence to prove that any of the accused had committed any seditious act warranting a crime under Section 124A IPC. Further, they were not even members of SIMI. The alleged conspiracy had not been proved and there was no corroboration to the approver\u2019s evidence. The only evidence was that of police officers who had allegedly heard their speech, and the documents alleged to have been seized were fabricated.<\/p>\n

On the other hand, the learned Special Public Prosecutor Mr M. Ajay submitted that the arrest, body search, and recovery of publications had been made after registration of the crime. The case was largely built on the evidence of an Imam of Panayikulam Salafi Masjid (PW1) whose testimony was corroborated by the police officers. Therefore, it was submitted that there was no reason to doubt his testimony.<\/p>\n

Delay in filing FIR and conducting body search<\/strong><\/p>\n

The Court stressed the importance of registering FIR at the earliest opportunity by relying on Thulia Kali v. State of Tamil Nadu<\/em>, (1972) 3 SCC 393<\/a> and noted that while the accused were apprehended at around 1 p.m., the FIR was registered only at 8:15 p.m. and the said FIR reached the learned Magistrate only around 8:30 p.m. the next day. There was no explanation for the said delay. Though the accused were in the police station on 15-08-2006 since 2 p.m., their body search was conducted only at 9:30 p.m. that day. The publications of SIMI were seized from the accused but seizure mahazar was sent to court three days later.<\/p>\n

The Bench refused to place reliance on the seized documents observing that \u201cDefence has a case that most of documents had been produced subsequently and it was later planted on the accused and made it appear that it was the accused who brought it. In fact, there is no explanation for the prosecution regarding the delay in sending the seizure mahazar to Court which is also one of the reasons for not placing reliance on these documents.\u201d<\/em><\/p>\n

No evidence corroborating making of speech and of criminal conspiracy <\/strong><\/p>\n

The Court noted that when NIA took over the investigation from the local police, PW1 was the prosecution witness, then he was made an accused, and later he was made an approver. PW1 deposed that accused 2 and 3 had made the following statements: <\/em><\/p>\n