Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 833/2006
Reserved on : 13.2.2007
Pronounced on : 4.5.2007
NASIR SAFI MIR ..... Petitioner
Through Mr. Ram Jethmalani, Mr. Dinesh Mathur,
Sr. Advocates with Mr. K.K. Manan, Mr. Mohit Mathur,
Mr. Tarun Goomber, Mr. Rishikesh Choudhary,
Advocates
versus
STATE, NCT OF DELHI ..... Respondent
Through Mr. Pawan Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE S.RAVINDRA BHAT
1. Whether reporters of local papers may be
allowed to see the judgment.? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
Mr.Justice S. Ravindra Bhat :
1. This revision is directed against an order on charge dated 31-10-2006, by which
the the trial court inter alia, charged the Petitioner for commission of offences under
Sections 3/5 Arms Act and 4/5 Explosives Substance Amendment Act 2001 and Sections
17/18 and 23 Unlawful Activities Prevention Act.
2. The prosecution version was that on 3.2.2006, the petitioner was apprehended on
a information through a central intelligence agency while he was travelling in a black
CRL.REV.P. 833/2006 1 of 10
colour car bearing No. DL3CAA-2289 from near Narula Restaurant, Defence Colony
Flyover and stopped in front of D-146 Defence Colony. The information of the
prosecution was that the petitioner is Dubai based conduit for banned terrorist outfit
Hijbul Mujahideen and was involved in a number of acts of providing funds through
"Hawala" Channels and explosives through terrorist organisations and he was to deliver a
consignment of explosives and Hawala money. The prosecution alleged that the
petitioner got down from the car, when he reached the spot and walked towards South
Delhi Public School, B Block, Defence Colony. At that point of time he was holding a
black coloured bag in his right hand. He was identified by an informer.
3. The petitioner waited for someone; after 15 minutes of waiting no one came there
he turned back to his car. Then, he was apprehended and his search led to the recovery of
two Kg of RDX, one electronic timer, and a detonator; one pistol make star with
magazine was also recovered from the pocket of the bag. The magazine had six live
cartridges. A cash amount of Rs.10 lakh was recovered from the bag. The petitioner
allegedly made a disclosure statement in which he revealed that he was working for
Hizbul Muzahideen and for Mir Waiz Ummar Farooq, Chief of Hurriyat Conference. He
stated that the consignment was collected by him from one Latif on the direction of Sayed
Salahuddin Chief of Hizbul Muzahideen terrorist outfit; it was to be delivered to one
Zahoor of Hizbul Mujahideen from the place where he was apprehended. He allegedly
also disclosed that he collected a sum of Rs.55 lakhs from a Hawala Operator and out of
that Rs.10 lakh was to be delivered to Zahoor alongwith recovered arms, explosive and
ammunition, while 40 lakhs was to be sent to Jammu & Kashmir to be distributed to
CRL.REV.P. 833/2006 2 of 10
various outfits.
4. It was alleged that a sum of Rs.45 lakhs was kept in a blue air bag; that too was
recovered from the front seat of the car. On the basis of these materials, the petitioner
was booked for offences under Section 121/121A/122/123/120B read with Section 4 & 5
Explosive Substance Act and 25 Arms Act and also under Section 17,18, 20 and 23
Unlawful Activities (prevention) Act. Sanctions were obtained to prosecute the accused
for the offences under the Indian Penal Code, Explosive Substances Act, Unlawful
Activities (Prevention) Act and under the Arms Act.
5. After investigation, a charge sheet was filed in court, on 2 May, 2006. After
hearing the accused, the trial court, i.e., the Additional Sessions Judge, framed charges
under Section 25, Arms Act, Sections 4 and 5 Explosive Substances (Amendment) Act
and Sections 17/23 and 18, Unlawful Activities (Prevention) Act. The court did not,
however frame charges under provisions of the Indian Penal Code.
6. Mr. Ram Jethmalani, learned senior counsel contended that since the trial Court
formed the opinion that elements of conspiracy, under Section 120B IPC were absent, it
was not open for it to frame charges under Section 17 and 18 of the Act. Counsel for the
petitioner submitted that the offence under Section 17, i.e. “raising money” for the
unlawful purposes was not made out. In that context, it was submitted that the expression
"raising money" merely implies obtaining or procuring it, by donation/subscription,
borrowing it, expropriation (or use of State power) or through extortion. Even if it were
assumed that the sum of Rs. 55 lakhs was recovered, that by itself could not lead to grave
suspicion that the petitioner had raised that money for the purposes mentioned in Section
CRL.REV.P. 833/2006 3 of 10
17, to justify a charge. Learned counsel relied upon the Black's Law Dictionary , page
rd
1132-33 and Advance Law Lexicon , 3 Edition (2005), page 3928, in support of his
submission regarding the expression “raised money”.
7. It was next contended that a charge under Section 18 i.e. act preparatory to a
terrorist act could be framed only subject to sanction. It was submitted that there was no
valid sanction within the meaning of the expression and that reliance placed upon the
order dated 01.05.06 is mis-placed. Shri Jethmalani submitted that there is nothing on the
face of the so-called sanction order indicative of proper application of mind and adequacy
of materials, in support of the sanction. He relied upon the judgment of the Privy Council
in Gokulchand Dwarkadas -v- The King AIR 1948 PC 82 to say that a sanction order
must, facially indicate brief facts of the case and that if it does not do so, it would be
invalid.
8. It was contended by counsel that there was also no evidence in support of the
charge under Section 18, which presupposed some objective facts pointing to the accused
acting so as to " conspires or attempts to commit, or advocates, abets, advises or incites
or knowingly facilitates the commission of, a terrorist act or any act preparatory to the
commission of a terrorist act..." The learned counsel submitted that mere recovery of
some amounts, howsoever substantive would not be indicative of any conspiracy, or
attempt to commit, advocacy, abetment, advice, incitement, or intentional facilitation of a
terrorist act, as defined under Section 15; there had to be something more than the mere
recovery of amounts.
CRL.REV.P. 833/2006 4 of 10
9. It was further contended that the materials on record show that there were serious
discrepancies about the time of the arrest. Allegedly, the rukka was sent on 03.02.06 at
8:30 PM, whereas the time of recording of the FIR was 8:50 PM. Counsel contended that
the seizure of materials, from the petitioner allegedly took place on 03.02.06 at 7:10 PM.
These inconsistencies were fatal to the genuineness of the prosecution version, and
pointed out to grave and serious suspicions about the truth of the allegations. In these
circumstances, the Court should not have proceeded to frame the charges, since on the
basis of the materials, two views were reasonably possible. Reliance was placed upon
Dilawar Babu Kuarane -v- State of Maharashtra AIR 2002 SC 564 for the proposition
that in such case the accused has to get the benefit of doubt.
10. Learned counsel for the State opposed the petition and submitted that the
order on charge does not require interference. It was contended that the petitioner was
apprehended and a huge quantity of dangerous explosives were recovered from him.
Also Rs. 10 lakhs were recovered at the same time and soon thereafter another Rs,. 45
lakhs was recovered, from the vehicle. The money was all unaccounted. Even if the
petitioner's allegation that disclosure statement were not to be taken into account, were
accepted nevertheless, the cumulative recovery of a large quantity of deadly explosives
and a huge sum of unaccounted money reasonably led to grave suspicion of the
petitioner's act preparatory to a terrorist act and also of his having raised amounts for the
purpose of committing a terrorist act. Under these circumstances, the charges under
Section 17 and 18 were correctly framed. In view of the recovery of explosives, the
charge under Section 23 of the Unlawful Activities (Prevention) Act had to be framed.
CRL.REV.P. 833/2006 5 of 10
11. Learned counsel submitted that as far as the question of sanction is concerned, the
judgment of the Supreme Court in State of Maharashtra -v- Som Nath Thapa 1996 SCC
(Crl.) 669 concludes the issue. The sanction order specifically mentions about
application of mind to the materials placed before the sanctioning authority. Therefore,
the Court cannot in the absence of compelling reasons go behind that order and see
whether the sanction order was vitiated.
12. The offence of "terrorist activities" finds mention in Section 2; after several
amendments, a new Chapter IV was added to the Unlawful Activities (Prevention) Act,
by Amendment Act of 29, which was brought into force with effect from 21st September,
2004. Section 15, defines terrorist activities, and Sections 17, 18 and 23 provide for
specific offences. The material provisions are extracted below:
"PUNISHMENT FOR TERRORIST ACTIVITIES
15. Terrorist Act .-Whoever, with intent to threaten the unity, integrity,
security or sovereignty of India or to strike terror in the people or any
section of the people in India or in any foreign country, does any act by
using bombs, dynamite or other explosive substances or inflammable
substances or firearms or other lethal weapons or poisons or noxious
gases or other chemicals or by any other substances (whether biological
or otherwise) of a hazardous nature, in such a manner as to cause, or
likely to cause, death of, or injuries to any person or persons or loss of, or
damage to, or destruction of, property or disruption of any supplies or
services essential to the life of the community in India or in any foreign
country or causes damage or destruction of any property or equipment
used or intended to be used for the defence of India or in connection with
any other purposes of the Government of India, any State Government or
any of their agencies, or detains any person and threatens to kill or injure
such person in order to compel the Government in India or the
Government of a foreign country or any other person to do or abstain from
doing any act, commits a terrorist act.
xxxxxxxxxxxxxx
CRL.REV.P. 833/2006 6 of 10
17. Punishment for raising fund for terrorist act .-Whoever raises fund
for the purpose of committing a terrorist act shall be punishable with
imprisonment for a term which shall not be less than five years but which
may extend to imprisonment for life, and shall also be liable to fine.
18. Punishment for conspiracy, etc. -Whoever conspires or attempts to
commit, or advocates, abets, advises or incites or knowingly facilitates the
commission of, a terrorist act or any act preparatory to the commission of
a terrorist act, shall be punishable with imprisonment for a term which
shall not be less than five years but which may extend to imprisonment for
life, and shall also be liable to fine.
xxxxxxxxxxxxxx
23. Enhanced penalties .-(1) If any person with intent to aid any terrorist
contravenes any provision of, or any rule made under the Explosives Act,
1884 (4 of 1884) or the Explosive Substances Act, 1908 (6 of 1908) or the
Inflammable Substances Act, 1952 (20 of 1952) or the Arms Act, 1959 (54
of 1959), or is in unauthorised possession of any bomb, dynamite or
hazardous explosive substance or other lethal weapon or substance
capable of mass destruction or biological or chemical substance of
warfare, he shall, notwithstanding anything contained in any of the
aforesaid Acts or the rules made thereunder, be punishable with
imprisonment for a term which shall not be less than five years but which
may extend to imprisonment for life, and shall also be liable to fine.
(2) Any person who, with intent to aid any terrorist, attempts to contravene
or abets, or does any act preparatory to contravention of any provision of
any law or rule specified in sub-section (1), shall be deemed to have
contravened that provision under sub-section (1) and the provisions of that
sub-section in relation to such person, have effect subject to the
modification that the reference to "imprisonment for life" therein shall be
construed as a reference to "imprisonment for ten years".
12. Apart from the above, no other point was urged in support of the petition. The
records of the trial court were called for. I have carefully considered them.
13. The first question is regarding the charge under Section 17. The controlling
expression is "raises fund" and the object clause is " purpose of commission of a terrorist
CRL.REV.P. 833/2006 7 of 10
act". There can be no dispute with the argument that the sources of funds may be four
fold; some lawful, and some unlawful. The question here is not the source, but the
suspicion about the possession. If the funds alone had been recovered, the argument on
behalf of the petitioner would have been attractive. However, that is not the case; apart
from the substantial amount of Rs. 55 lakh, recovered from the petitioner, a Dubai
national, he was also found in possession of a dangerous explosive, i.e two kilograms of
RDX. Now, the recovery of these two, ie. the sum of Rs. 55 lakhs, and the explosive, in
my opinion, was sufficient for the court to have entertained a grave suspicion about the
use of both. In other words, the cumulative, or total effect of the recoveries was seen by
the court, for framing the charge under Section 17, as well as Section 18. I find no
infirmity with that approach.
14. As regards the second submission, i.e that there was no other material to connect
the petitioner with any unlawful or terrorist act, or organization, and therefore in the
absence of any overt act toward that end, the charge under Section 18 could not be
framed, the answer, to my mind, is that the provision is not merely indicative of one or
few positive acts, but a series of acts, over a period of time. This necessarily would imply
a wider canvas in time, and a time continuum. This view is strengthened by use of such
expressions as "abet"; "conspire" " advocates, abets, advises or incites or knowingly
facilitates" any "act preparatory to a terrorist act". The intention here is to prevent a
potential abettor, or facilitator, or conduit, aiding the preparation of a terrorist act. The
recovery of the huge quantity of RDX is sufficient for a charge for that offence. I am not
persuaded with the submission that something overt or positive, on the part of the accused
CRL.REV.P. 833/2006 8 of 10
is necessary for the charge; to insist on such a condition would be to import limitations
which possibly were not contemplated. All the actions covered covert deeds performed,
or planned in stealth, and highlighted by isolated actions, or circumstances. If at the stage
of charge, the limited interpretation advanced were to be accepted, possibly the court
would be defeating the legislative intent.
15. The next question is whether the sanction granted, and produced in support of the
case was valid, as it did not contain reasons to support application of mind. Gokulchand's
case (supra) was cited for the purpose. An identical argument was apparently raised, in
Mohammed Afzal -vs- State of Delhi 2005-(11)-SCC -600 when, after considering the
ratio in Gokulchand, the Supreme Court held as follows:
"Ultimately, the test to be applied is whether relevant material that formed the
basis of allegations constituting the offence was placed before the sanctioning
authority and the same was perused before granting sanction. We are of the view
that this test has been amply satisfied in the instant case. The sanction orders on
their face indicate that all relevant material viz., FIR, disclosure statements,
recovery memos, draft charge sheet and other material on record was placed
before the sanctioning authority. The fact that the sanctioning authority perused
all this material is also discernible from the recital in the sanction orders. The
sanction orders make it clear that the sanctioning authority had reached the
satisfaction that prima facie the accused committed or conspired to commit the
offences mentioned therein. The elaborate narration of facts culled out from the
record placed before the sanctioning authority and the discussion as to the
applicability of each and every Section of the penal provision quoted therein is not
an imperative requirement. A pedantic repetition from what is stated in the FIR or
the draft charge-sheet or other documents is not what is called for in order to
judge whether there was due application of mind. It must be noted that the grant of
sanction is an executive act and the validity thereof cannot be tested in the light of
principles applied to the quasi-judicial orders vide the decisions in State of Bihar
v. P. P. Sharma ((1992) Suppl 1 SCC 222) (1991 AIR SCW 1034 : AIR 1991 SC
1260) and Superintendent of Police v. Deepak Chowdary ((1995) 6 SCC 225)
(1996 AIR SCW 3905 : AIR 1996 SC 186 : 1996 Cri LJ 405)."
CRL.REV.P. 833/2006 9 of 10
16. The last point urged was that the time of the rukka, the FIR and the arrest were so
discrepant, as to falsify and discredit the entire story and version of the prosecution; the
court could never have framed the charges. It is far too well settled that the court does not
embark upon a meticulous and microscopic foray into the evidence and materials relied
upon the prosecution, at the charge framing stage; it only sees the broad prima facie
aspects or features. Thus, some discrepancies, cannot completely destroy the version, so
as to preclude the court from framing charges.
17. For the above reasons, I find no ground to interfere with the order of the trial
court. The revision petition is accordingly dismissed.
(S. RAVINDRA BHAT)
JUDGE
May 02, 2007
CRL.REV.P. 833/2006 10 of 10
+ CRL.REV.P. 833/2006
Reserved on : 13.2.2007
Pronounced on : 4.5.2007
NASIR SAFI MIR ..... Petitioner
Through Mr. Ram Jethmalani, Mr. Dinesh Mathur,
Sr. Advocates with Mr. K.K. Manan, Mr. Mohit Mathur,
Mr. Tarun Goomber, Mr. Rishikesh Choudhary,
Advocates
versus
STATE, NCT OF DELHI ..... Respondent
Through Mr. Pawan Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE S.RAVINDRA BHAT
1. Whether reporters of local papers may be
allowed to see the judgment.? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
Mr.Justice S. Ravindra Bhat :
1. This revision is directed against an order on charge dated 31-10-2006, by which
the the trial court inter alia, charged the Petitioner for commission of offences under
Sections 3/5 Arms Act and 4/5 Explosives Substance Amendment Act 2001 and Sections
17/18 and 23 Unlawful Activities Prevention Act.
2. The prosecution version was that on 3.2.2006, the petitioner was apprehended on
a information through a central intelligence agency while he was travelling in a black
CRL.REV.P. 833/2006 1 of 10
colour car bearing No. DL3CAA-2289 from near Narula Restaurant, Defence Colony
Flyover and stopped in front of D-146 Defence Colony. The information of the
prosecution was that the petitioner is Dubai based conduit for banned terrorist outfit
Hijbul Mujahideen and was involved in a number of acts of providing funds through
"Hawala" Channels and explosives through terrorist organisations and he was to deliver a
consignment of explosives and Hawala money. The prosecution alleged that the
petitioner got down from the car, when he reached the spot and walked towards South
Delhi Public School, B Block, Defence Colony. At that point of time he was holding a
black coloured bag in his right hand. He was identified by an informer.
3. The petitioner waited for someone; after 15 minutes of waiting no one came there
he turned back to his car. Then, he was apprehended and his search led to the recovery of
two Kg of RDX, one electronic timer, and a detonator; one pistol make star with
magazine was also recovered from the pocket of the bag. The magazine had six live
cartridges. A cash amount of Rs.10 lakh was recovered from the bag. The petitioner
allegedly made a disclosure statement in which he revealed that he was working for
Hizbul Muzahideen and for Mir Waiz Ummar Farooq, Chief of Hurriyat Conference. He
stated that the consignment was collected by him from one Latif on the direction of Sayed
Salahuddin Chief of Hizbul Muzahideen terrorist outfit; it was to be delivered to one
Zahoor of Hizbul Mujahideen from the place where he was apprehended. He allegedly
also disclosed that he collected a sum of Rs.55 lakhs from a Hawala Operator and out of
that Rs.10 lakh was to be delivered to Zahoor alongwith recovered arms, explosive and
ammunition, while 40 lakhs was to be sent to Jammu & Kashmir to be distributed to
CRL.REV.P. 833/2006 2 of 10
various outfits.
4. It was alleged that a sum of Rs.45 lakhs was kept in a blue air bag; that too was
recovered from the front seat of the car. On the basis of these materials, the petitioner
was booked for offences under Section 121/121A/122/123/120B read with Section 4 & 5
Explosive Substance Act and 25 Arms Act and also under Section 17,18, 20 and 23
Unlawful Activities (prevention) Act. Sanctions were obtained to prosecute the accused
for the offences under the Indian Penal Code, Explosive Substances Act, Unlawful
Activities (Prevention) Act and under the Arms Act.
5. After investigation, a charge sheet was filed in court, on 2 May, 2006. After
hearing the accused, the trial court, i.e., the Additional Sessions Judge, framed charges
under Section 25, Arms Act, Sections 4 and 5 Explosive Substances (Amendment) Act
and Sections 17/23 and 18, Unlawful Activities (Prevention) Act. The court did not,
however frame charges under provisions of the Indian Penal Code.
6. Mr. Ram Jethmalani, learned senior counsel contended that since the trial Court
formed the opinion that elements of conspiracy, under Section 120B IPC were absent, it
was not open for it to frame charges under Section 17 and 18 of the Act. Counsel for the
petitioner submitted that the offence under Section 17, i.e. “raising money” for the
unlawful purposes was not made out. In that context, it was submitted that the expression
"raising money" merely implies obtaining or procuring it, by donation/subscription,
borrowing it, expropriation (or use of State power) or through extortion. Even if it were
assumed that the sum of Rs. 55 lakhs was recovered, that by itself could not lead to grave
suspicion that the petitioner had raised that money for the purposes mentioned in Section
CRL.REV.P. 833/2006 3 of 10
17, to justify a charge. Learned counsel relied upon the Black's Law Dictionary , page
rd
1132-33 and Advance Law Lexicon , 3 Edition (2005), page 3928, in support of his
submission regarding the expression “raised money”.
7. It was next contended that a charge under Section 18 i.e. act preparatory to a
terrorist act could be framed only subject to sanction. It was submitted that there was no
valid sanction within the meaning of the expression and that reliance placed upon the
order dated 01.05.06 is mis-placed. Shri Jethmalani submitted that there is nothing on the
face of the so-called sanction order indicative of proper application of mind and adequacy
of materials, in support of the sanction. He relied upon the judgment of the Privy Council
in Gokulchand Dwarkadas -v- The King AIR 1948 PC 82 to say that a sanction order
must, facially indicate brief facts of the case and that if it does not do so, it would be
invalid.
8. It was contended by counsel that there was also no evidence in support of the
charge under Section 18, which presupposed some objective facts pointing to the accused
acting so as to " conspires or attempts to commit, or advocates, abets, advises or incites
or knowingly facilitates the commission of, a terrorist act or any act preparatory to the
commission of a terrorist act..." The learned counsel submitted that mere recovery of
some amounts, howsoever substantive would not be indicative of any conspiracy, or
attempt to commit, advocacy, abetment, advice, incitement, or intentional facilitation of a
terrorist act, as defined under Section 15; there had to be something more than the mere
recovery of amounts.
CRL.REV.P. 833/2006 4 of 10
9. It was further contended that the materials on record show that there were serious
discrepancies about the time of the arrest. Allegedly, the rukka was sent on 03.02.06 at
8:30 PM, whereas the time of recording of the FIR was 8:50 PM. Counsel contended that
the seizure of materials, from the petitioner allegedly took place on 03.02.06 at 7:10 PM.
These inconsistencies were fatal to the genuineness of the prosecution version, and
pointed out to grave and serious suspicions about the truth of the allegations. In these
circumstances, the Court should not have proceeded to frame the charges, since on the
basis of the materials, two views were reasonably possible. Reliance was placed upon
Dilawar Babu Kuarane -v- State of Maharashtra AIR 2002 SC 564 for the proposition
that in such case the accused has to get the benefit of doubt.
10. Learned counsel for the State opposed the petition and submitted that the
order on charge does not require interference. It was contended that the petitioner was
apprehended and a huge quantity of dangerous explosives were recovered from him.
Also Rs. 10 lakhs were recovered at the same time and soon thereafter another Rs,. 45
lakhs was recovered, from the vehicle. The money was all unaccounted. Even if the
petitioner's allegation that disclosure statement were not to be taken into account, were
accepted nevertheless, the cumulative recovery of a large quantity of deadly explosives
and a huge sum of unaccounted money reasonably led to grave suspicion of the
petitioner's act preparatory to a terrorist act and also of his having raised amounts for the
purpose of committing a terrorist act. Under these circumstances, the charges under
Section 17 and 18 were correctly framed. In view of the recovery of explosives, the
charge under Section 23 of the Unlawful Activities (Prevention) Act had to be framed.
CRL.REV.P. 833/2006 5 of 10
11. Learned counsel submitted that as far as the question of sanction is concerned, the
judgment of the Supreme Court in State of Maharashtra -v- Som Nath Thapa 1996 SCC
(Crl.) 669 concludes the issue. The sanction order specifically mentions about
application of mind to the materials placed before the sanctioning authority. Therefore,
the Court cannot in the absence of compelling reasons go behind that order and see
whether the sanction order was vitiated.
12. The offence of "terrorist activities" finds mention in Section 2; after several
amendments, a new Chapter IV was added to the Unlawful Activities (Prevention) Act,
by Amendment Act of 29, which was brought into force with effect from 21st September,
2004. Section 15, defines terrorist activities, and Sections 17, 18 and 23 provide for
specific offences. The material provisions are extracted below:
"PUNISHMENT FOR TERRORIST ACTIVITIES
15. Terrorist Act .-Whoever, with intent to threaten the unity, integrity,
security or sovereignty of India or to strike terror in the people or any
section of the people in India or in any foreign country, does any act by
using bombs, dynamite or other explosive substances or inflammable
substances or firearms or other lethal weapons or poisons or noxious
gases or other chemicals or by any other substances (whether biological
or otherwise) of a hazardous nature, in such a manner as to cause, or
likely to cause, death of, or injuries to any person or persons or loss of, or
damage to, or destruction of, property or disruption of any supplies or
services essential to the life of the community in India or in any foreign
country or causes damage or destruction of any property or equipment
used or intended to be used for the defence of India or in connection with
any other purposes of the Government of India, any State Government or
any of their agencies, or detains any person and threatens to kill or injure
such person in order to compel the Government in India or the
Government of a foreign country or any other person to do or abstain from
doing any act, commits a terrorist act.
xxxxxxxxxxxxxx
CRL.REV.P. 833/2006 6 of 10
17. Punishment for raising fund for terrorist act .-Whoever raises fund
for the purpose of committing a terrorist act shall be punishable with
imprisonment for a term which shall not be less than five years but which
may extend to imprisonment for life, and shall also be liable to fine.
18. Punishment for conspiracy, etc. -Whoever conspires or attempts to
commit, or advocates, abets, advises or incites or knowingly facilitates the
commission of, a terrorist act or any act preparatory to the commission of
a terrorist act, shall be punishable with imprisonment for a term which
shall not be less than five years but which may extend to imprisonment for
life, and shall also be liable to fine.
xxxxxxxxxxxxxx
23. Enhanced penalties .-(1) If any person with intent to aid any terrorist
contravenes any provision of, or any rule made under the Explosives Act,
1884 (4 of 1884) or the Explosive Substances Act, 1908 (6 of 1908) or the
Inflammable Substances Act, 1952 (20 of 1952) or the Arms Act, 1959 (54
of 1959), or is in unauthorised possession of any bomb, dynamite or
hazardous explosive substance or other lethal weapon or substance
capable of mass destruction or biological or chemical substance of
warfare, he shall, notwithstanding anything contained in any of the
aforesaid Acts or the rules made thereunder, be punishable with
imprisonment for a term which shall not be less than five years but which
may extend to imprisonment for life, and shall also be liable to fine.
(2) Any person who, with intent to aid any terrorist, attempts to contravene
or abets, or does any act preparatory to contravention of any provision of
any law or rule specified in sub-section (1), shall be deemed to have
contravened that provision under sub-section (1) and the provisions of that
sub-section in relation to such person, have effect subject to the
modification that the reference to "imprisonment for life" therein shall be
construed as a reference to "imprisonment for ten years".
12. Apart from the above, no other point was urged in support of the petition. The
records of the trial court were called for. I have carefully considered them.
13. The first question is regarding the charge under Section 17. The controlling
expression is "raises fund" and the object clause is " purpose of commission of a terrorist
CRL.REV.P. 833/2006 7 of 10
act". There can be no dispute with the argument that the sources of funds may be four
fold; some lawful, and some unlawful. The question here is not the source, but the
suspicion about the possession. If the funds alone had been recovered, the argument on
behalf of the petitioner would have been attractive. However, that is not the case; apart
from the substantial amount of Rs. 55 lakh, recovered from the petitioner, a Dubai
national, he was also found in possession of a dangerous explosive, i.e two kilograms of
RDX. Now, the recovery of these two, ie. the sum of Rs. 55 lakhs, and the explosive, in
my opinion, was sufficient for the court to have entertained a grave suspicion about the
use of both. In other words, the cumulative, or total effect of the recoveries was seen by
the court, for framing the charge under Section 17, as well as Section 18. I find no
infirmity with that approach.
14. As regards the second submission, i.e that there was no other material to connect
the petitioner with any unlawful or terrorist act, or organization, and therefore in the
absence of any overt act toward that end, the charge under Section 18 could not be
framed, the answer, to my mind, is that the provision is not merely indicative of one or
few positive acts, but a series of acts, over a period of time. This necessarily would imply
a wider canvas in time, and a time continuum. This view is strengthened by use of such
expressions as "abet"; "conspire" " advocates, abets, advises or incites or knowingly
facilitates" any "act preparatory to a terrorist act". The intention here is to prevent a
potential abettor, or facilitator, or conduit, aiding the preparation of a terrorist act. The
recovery of the huge quantity of RDX is sufficient for a charge for that offence. I am not
persuaded with the submission that something overt or positive, on the part of the accused
CRL.REV.P. 833/2006 8 of 10
is necessary for the charge; to insist on such a condition would be to import limitations
which possibly were not contemplated. All the actions covered covert deeds performed,
or planned in stealth, and highlighted by isolated actions, or circumstances. If at the stage
of charge, the limited interpretation advanced were to be accepted, possibly the court
would be defeating the legislative intent.
15. The next question is whether the sanction granted, and produced in support of the
case was valid, as it did not contain reasons to support application of mind. Gokulchand's
case (supra) was cited for the purpose. An identical argument was apparently raised, in
Mohammed Afzal -vs- State of Delhi 2005-(11)-SCC -600 when, after considering the
ratio in Gokulchand, the Supreme Court held as follows:
"Ultimately, the test to be applied is whether relevant material that formed the
basis of allegations constituting the offence was placed before the sanctioning
authority and the same was perused before granting sanction. We are of the view
that this test has been amply satisfied in the instant case. The sanction orders on
their face indicate that all relevant material viz., FIR, disclosure statements,
recovery memos, draft charge sheet and other material on record was placed
before the sanctioning authority. The fact that the sanctioning authority perused
all this material is also discernible from the recital in the sanction orders. The
sanction orders make it clear that the sanctioning authority had reached the
satisfaction that prima facie the accused committed or conspired to commit the
offences mentioned therein. The elaborate narration of facts culled out from the
record placed before the sanctioning authority and the discussion as to the
applicability of each and every Section of the penal provision quoted therein is not
an imperative requirement. A pedantic repetition from what is stated in the FIR or
the draft charge-sheet or other documents is not what is called for in order to
judge whether there was due application of mind. It must be noted that the grant of
sanction is an executive act and the validity thereof cannot be tested in the light of
principles applied to the quasi-judicial orders vide the decisions in State of Bihar
v. P. P. Sharma ((1992) Suppl 1 SCC 222) (1991 AIR SCW 1034 : AIR 1991 SC
1260) and Superintendent of Police v. Deepak Chowdary ((1995) 6 SCC 225)
(1996 AIR SCW 3905 : AIR 1996 SC 186 : 1996 Cri LJ 405)."
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16. The last point urged was that the time of the rukka, the FIR and the arrest were so
discrepant, as to falsify and discredit the entire story and version of the prosecution; the
court could never have framed the charges. It is far too well settled that the court does not
embark upon a meticulous and microscopic foray into the evidence and materials relied
upon the prosecution, at the charge framing stage; it only sees the broad prima facie
aspects or features. Thus, some discrepancies, cannot completely destroy the version, so
as to preclude the court from framing charges.
17. For the above reasons, I find no ground to interfere with the order of the trial
court. The revision petition is accordingly dismissed.
(S. RAVINDRA BHAT)
JUDGE
May 02, 2007
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