Bombay High Court
Shaikh Irfan Shaikh Salim And ... vs The State Of Maharashtra on 9 October, 2023
Bench: R. G. Avachat, Sanjay A. Deshmukh
2023:BHC-AUG:21808-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 50 OF 2023
1. Shaikh Irfan Shaikh Salim,
2. Sayed Faisal Sayed Khalil,
3. Abdul Hadi Abdul Rauf ...Petitioners
versus
The State of Maharashtra ...Respondent
...
Advocate for Petitioners : Mr. Biyabani Anifadil Z.
APP for Respondent : Mr. A.R. Kale
.....
CORAM : R. G. AVACHAT AND
SANJAY A. DESHMUKH, JJ.
DATED : 9th OCTOBER, 2023.
PER COURT :-
1. This petition has been filed taking exception of invocation of
Section 13(1)(b) of the Unlawful Activities (Prevention) Act, 1967
(hereinafter for the sake of brevity referred to as "the UAPA").
According to the learned advocate for the petitioners, the Popular
Front of India (PFI) was banned w.e.f. 27.09.2022. Close reading of
the F.I.R. would indicate that the petitioners herein are alleged to
have indulged in unlawful activities within the meaning of definition
given in Section 2(o) of the UAPA, in the capacity as members of the
said banned organization. The learned advocate also referred to
Chapter VI of the UAPA and particularly Section 35 thereof. He then
adverted our attention to Schedule I and IV wherein names of certain
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organizations and individuals have been incorporated as terrorist
organizations and/or terrorists. He would further submit that if the
provisions of UAPA have been invoked then Section 120-B of I.P.C.
ought not to have been invoked. According to him, only with to
ensure that the petitioners would not secure bail in view of stringent
provisions of UAPA, the F.I.R. in question and consequential charge
have been filed. He also relied upon the judgment of the Apex Court
in the case of Prakash Kumar, Prakash Bhutto vs. State of
Gujarat, SCC 2005 (2) 409. He ultimately urged for quashment of
invocation of Section 13(1) (b) of the UAPA.
2. Learned A.P.P. would on the other hand takes us through
section 2(o) of UAPA. He then read out the F.I.R. According to him,
Section 13(1)(b) pertains to activities indulges in by individuals and
not as members of banned organization. He then reads out Section
13(1) (b) and Section 13(2) of UAPA. According to him, an individual
can also be prosecuted under UAPA. He also takes us through the
material collected by the investigating agency to ultimately urge
rejection of the petition.
3. Considered the submissions advanced. Perused the F.I.R.
and the authority relied upon. Learned advocate for the petitioners
do not advert to the material which has been relied upon by the
prosecution as against each of the petitioners so as to invoke Section
13(1)(b) of the UAPA. According to him, since the organization was
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banned post alleged activities of the petitioners, the said section
could not have been invoked. According to him, those activities took
place a year before the F.I.R. in question was lodged. We are not
convinced by the submissions advanced by learned advocate for the
petitioners. Section 2(o) of UAPA is reproduced as under:-
"(2)(o) "unlawful activity", in relation to an individual or
association, means any action taken by such individual or
association (whether by committing an act or by words, either
spoken or written, or by signs or by visible representation or
otherwise).
(i) which is intended, or supports any claim, to bring
about, on any ground whatsoever, the cession of a part of the
territory of India or the secession of a part of the territory of
India from the Union, or which incites any individual or group
of individuals to bring about such cession or secession; or
(ii) which disclaims, questions, disrupts or is intended
to disrupt the sovereignty and territorial integrity of India; or
(iii) which causes or is intended to cause disaffection
against India;"
4. Section 13(1) (b) of the UAPA is reproduced as under:-
"13. Punishment for unlawful activities.- (1) Whoever-
(a) .....
(b) advocates, abets, advices or incites the
commission of, any unlawful activity, shall be punishable
with imprisonment for a term which may extend to seven
years, and shall also be liable to fine."
5. Close reading of the aforesaid provisions would indicate
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that the individuals can even be prosecuted for the commission of
unlawful activities or abetment thereof. It is true that the Apex Court
in the case of Prakash Kumar, Prakash Bhutto vs. State of
Gujarat (supra) in para 42 has observed as under:-
"42. Having said so, we also notice the note of
caution of this Court in Kartar Singh (supra) in paragraph
352 (SCC p.707) as under:-
"352. It is true that on many occasions, we have
come across cases wherein the prosecution unjustifiably
invokes the provisions of the TADA Act with an oblique
motive of depriving the accused persons from getting bail
and in some occasions when the courts are inclined to grant
bail in cases registered under ordinary criminal law, the
investigating officers in order to circumvent the authority of
the courts invoke the provisions of the TADA Act. This kind
of invocation of the provisions of TADA in cases, the facts
of which do not warrant, is nothing but sheer misuse and
abuse of the Act by the police. Unless, the public
prosecutors rise to the occasion and discharge their
onerous responsibilities keeping in mind that they are
prosecutors on behalf of the public but not the police and
unless the Presiding Officers of the Designated Courts
discharge their judicial functions keeping in view the
fundamental rights particularly of the personal right and
liberty of every citizen as enshrined in the Constitution to
which they have been assigned the role of sentinel on the
qui vive, it cannot be said that the provisions of TADA Act
are enforced effectively inconsonance with the legislative
intendment." (emphasis supplied)."
The aforesaid observation was based on the facts and
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circumstances of the said case.
6. After having gone through the definition of unlawful activity
and the offence punishable under Section 13(1)(b) of the very Act
and when the learned advocate for the petitioners has conveniently
avoided to refer individual activities in relation to which there is
material to indicate their involvement in the alleged activities, we are
of the view that the State cannot be said to have erred in invoking
Section 13(1)(b) of the UAPA.
7. In view of above, the petition is sans merit and therefore,
deserves to be dismissed. The petition thus fails and dismissed
accordingly.
(SANJAY A. DESHMUKH, J.) (R. G. AVACHAT, J.)
rlj/
