Zabiulla @ Zabibulla vs State Of Karnataka
2023 Latest Caselaw 3297 Kant

                                          CRL.A.No.1527/2022

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                                                               R
         DATED THIS THE 15th DAY OF JUNE, 2023

                          PRESENT

        THE HON'BLE MRS JUSTICE K.S.MUDAGAL

                             AND

  THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR

         CRIMINAL APPEAL NO.1527/2022 (NIA)

BETWEEN:

ZABIULLA @ ZABIBULLA
S/O A ISMAIL
AGED ABOUT 25 YEARS
R/AT NO.175/2
ASHWATHKATTA ROAD
OPP: GANESH TEMPLE
OLD GURAPPANA PALYA
BTM LAYOUT
SUGGUNAPALYA
BANGALORE -560 029                             ...APPELLANT

(BY SRI.BALAKRISHNAN, ADVOCATE)

AND:

STATE OF KARNATAKA
MICO LAYOUT POLICE STATION
REP. BY SPECIAL PUBLIC PROSECUTOR (NIA)
HIGH COURT BUILDING
BENGALURU -560 001                          ...RESPONDENT

(BY SRI.P.PRASANNA KUMAR, SPL. PP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 21(4) OF
NATIONAL INVESTIGATION AGENCY ACT, 2008, PRAYING TO SET
                                                  CRL.A.No.1527/2022

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ASIDE THE ORDER OF XLIX ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, SPECIAL COURT FOR TRAIL OF NIA CASES (CCH-50)
BENGALURU DATED 08.07.2022 IN CRL.MISC.NO.6090/2022 AND
ETC.
      THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED
ON 29.05.2023,COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:

                           JUDGMENT

Challenging the order of dismissal of his bail petition,

accused No.16 in Spl.C.C.No.320/2020 on the file of 69th Addl.

City Civil and Sessions Judge (Spl. Court for trial of NIA cases),

Bengaluru has preferred this appeal.

2. The brief facts of the case are as follows:

On 10.01.2020, Shri Niranjan Kumar C, Inspector, CCB,

Economic Offences Wing, Bengaluru City submitted a written

complaint at Suddaguntepalya Police Station, Bengaluru to the

effect that, Mehaboob Pasha (A-1), resident of Gurappanapalya,

Bengaluru, Karnataka in association with Khaja Moideen (A-2),

who was accused in several cases registered in Tamil Nadu

related to terrorism, murder etc. formed a terror group with

young Muslims in South India. They selected their base at

Bengaluru. They conducted several criminal conspiracy meetings CRL.A.No.1527/2022

at the house of accused Mehboob Pasha (A-1) and Zabiulla (A-

16) and at the Al-Hind Office in Bengaluru and other places in

Karnataka and Tamil Nadu since April, 2019. They propagated

the ideology of the proscribed terrorist organization ISIS. They

conspired to collect Arms and Explosives for murdering

Hindu leaders and police officers thereby creating

communal riots. They recruited vulnerable Muslim youths

with intention to carry out terrorist attacks in South India

especially in Karnataka and Tamil Nadu.

3. Based on the said written complaint, Crime

No.10/2020 dated 10.01.2020 under sections 153A, 121A, 120B,

122, 123, 124A and 125 of Indian Penal Code, 1860 and section

13, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967

('the UAP Act' for short) was registered at Suddaguntepalya

Police Station, Bengaluru, Karnataka against Mehaboob Pasha

(A-1) and 16 others.

4. Subsequently, considering the gravity of the offences

and interstate and international ramifications of the same, the

Ministry of Home Affairs, New Delhi, in exercise of the powers CRL.A.No.1527/2022

conferred under section 6(4) read with Section 8 of National

Investigation Agency Act 2008, issued its order vide

No.11011/11/2020/NIA dated 22nd January, 2020, directing the

National Investigation Agency to take up the investigation of the

case. Accordingly, National Investigation Agency (NIA) re-

registered the said case in RC-04/2020/NIA/DLI, u/s 153A,

121A, 120B, 122, 123, 124A and 125 of IPC and section 13, 18

and 20 of UA (P) Act at NIA, New Delhi on 23.01.2020.

5. After investigation NIA filed charge sheet against

accused Nos.1 to 21 for the offences punishable under Sections

17, 18, 18A, 18B, 19, 20, 38 and 39 of UAP Act, Section 25(1B)

of the Arms Act and Section 120B of IPC specifiable to each

individual accused. In the charge sheet the permission was

sought to conduct further investigation. Permission was sought

to conduct further investigation against accused Nos.22 and 23

the other suspected accused.

6. The charge sheet allegations against the appellant

are that he has committed the offences under Sections 17, 18,

18A, 20 and 39 of UAP Act and Section 120B of IPC. It was CRL.A.No.1527/2022

alleged that he conspired with the other accused to indulge in

terrorist acts to achieve the aim of the ISIS a terrorist

organization and for that purpose he propagated the ideologies

of ISIS, mobilized the funds, transferred them to accused No.1,

secured required articles to conduct the terrorist training camps,

organized them and he too took training in martial arts including

handling of the pistol, arrows and bows.

7. The appellant's earlier applications for bail were

rejected by the trial Court on the ground that there is prima facie

material to show his involvement in the offences alleged against

him, therefore, Section 43D(5) of the UAP Act bars granting him

bail. Admittedly, the appellant did not challenge that order by

filing any appeal.

8. The appellant and accused No.19 Syed Fasiur

Rehman again filed bail petition in Crl.Misc. No.6090/2022

before the trial Court. The trial Court on hearing both side by

the impugned order rejected the said application on the ground

that the earlier application was rejected on merits and no

changed circumstances were made out. The impugned order CRL.A.No.1527/2022

shows that the appellant contended that after the earlier order,

accused No.11 was granted bail by this Court, therefore parity

applies and that was the changed circumstance. The trial Court

rejected the said contention also holding that the overtacts

attributed to the petitioners and accused No.11 were not one

and the same.

9. The respondent has filed its counter to the appeal.

10. Heard both side.

Submissions of Sri S.Balan, learned counsel for the appellant:

11. To attract the charges under Sections 17, 18, 18A,

209 and 39 of UAP Act, either the appellant should have

committed a terrorist act or should have been member of

terrorist organization as contemplated under Section 2(k) & (m)

read with Section 15 of the UAP Act. Al-Hind organization to

which the appellant allegedly belonged to was not an

organization enlisted in First Schedule of the UAP Act, therefore

UAP Act does not apply. Probably for that reason the

Investigating Officer has not charge sheeted the appellant for

the offence punishable under Section 16 of UAP Act. If the UAP CRL.A.No.1527/2022

Act is not applicable, the question of considering prima facie case

does not arise. More over there was no prima facie material

against the appellant to show that he was involved in the

offences alleged against him. Accused No.11 against whom the

similar allegations were made was granted bail by this Court in

Crl.A.No.130/2021. Therefore on the ground of parity also the

appellant is entitled to grant of bail. The trial Court committed

error in rejecting the appellant's bail application overlooking the

order of this Court in Crl.A.No.130/2021 and the non application

of the provisions of the UAP Act and by applying Section 43D(5)

of the UAP Act.

12. In support of his submissions, he relies on the

following judgments:

1. Saleem Khan and Ors. Vs. State of Karnataka1

2. Iqbal Ahmed Kabir Ahmed Vs. The State of Maharashtra2

3. State of Kerala Vs. Raneef3

4. A.Ramachandran Vs. Central Bureau of Investigation & Ors.4

Crl.A.No.130/2021 D.D.21.04.2022

2021 SCC online Bom.1805

(2011) 1 SCC 784

2015 SCC online Ker.17832 CRL.A.No.1527/2022

5. Devendar Gupta & Ors. Vs. National Investigation Aegency5

6. Arup Bhuyan Vs. State of Assam6

7. Faizan Khan Vs. State NCT of Delhi7

8. Vikram Vinay Bhave Vs. State of Maharashtra & Anr. 8

9. Asif Iqbal Tanha Vs. State of NCT Delhi9

10. Thwaha Fasal Vs. Union of India10

11. C.K.Ramachandran Vs. State of Central Bureau of

Investigation & Anr. 11

Submissions of Sri Prasanna Kumar.K., learned Standing Counsel the respondent:

13. Even though Al-Hind was not proscribed

organization, it had the links with ISIS a proscribed organization

and is aiding and supporting the activities of ISIS. Al-Hind

though not enlisted terrorist organization, but is a terrorist gang.

Section 15 of UAP Act does not speak of commission of acts of

terrorism only by the terrorist organization, but it refers to any

individual committing such acts. Sections 17, 18, 18A of UAP Act

are independent of Section 39 of UAP Act. Therefore, the

2014 SCC Online AP 192

2023 SCC Online SC 338

2020 SCC Online Del. 1365

2021 SCC Online Bom 680

2021 SCC Online Del 3253

2021 SCC Online SC 1000

2020 SCC Online Ker. 9394 CRL.A.No.1527/2022

interpretation that to attract the UAP Act, one should be the

member of terrorist organization is wholly misconceived. Further

the allegations against the appellant and accused No.11 were

not one and the same. The judgment in Crl.A.No.130/2021 has

been challenged before the Hon'ble Supreme Court and the

same is still pending in Spl.Leave to appeal (Crl).

No.11482/2022. Therefore the appellant cannot claim the parity.

So far as the merits of the case, the trial Court had rejected the

appellant's earlier application on merits. He did not challenge

that order. Therefore, it is not open to him to urge the ground of

prima facie material or bar of Section 43D(5) of the Act. The

judgments relied on by learned Counsel for the appellant are not

applicable.

14. On careful consideration of the submission of both

side and the material on record, the question that arises for

consideration is;

"Whether the impugned order of rejection of bail application of the appellant suffers any illegality or perversity ?"

CRL.A.No.1527/2022

ANALYSIS

15. The allegations against the appellant in the charge

sheet is that since 2015 he is associated with Al Hind group

founded by accused No.1 which is propagating the ideologies and

aiding the activities of ISIS a proscribed terrorist organization.

It is further alleged that he conspired with them, raised funds

and transferred the same to accused No.1 for such illegal

activities, attended jihadi and martial arts classes for handling

arms. Thereby committed the offences under Sections 17, 18,

18A 20 and 39 of UAP Act read with section 120B IPC.

16. The sum and substance of the arguments of the

appellant's counsel is that to invoke the provisions of the UAP

Act more particularly section 43D(5) of the Act a person should

have committed the Terrorist act contemplated under Section 15

of the UAP Act or he should have been the member of Terrorist

organization. It is contended that neither Al Hind with which the

appellant is associated is a terrorist organization nor he has

committed a terrorist act as contemplated under Section 15 of

the UAP Act.

CRL.A.No.1527/2022

17. Therefore the Court has to examine whether to

invoke Sections 17, 18 and 18A of the UAP Act the accused shall

be necessarily a member of terrorist organization. For that

purpose it is necessary to examine those provisions which read

as follows:.

"Section 17. Punishment for raising funds for terrorist act.--Whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used, in full or in part by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such 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.

Section 18. Punishment for conspiracy, etc.--Whoever conspires or attempts to commit, or advocates, abets, advises or (incites, directly 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 CRL.A.No.1527/2022

be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.

18A. Punishment for organizing of terrorist camps.--Whoever organizes or causes to be organized any camp or camps for imparting training in terrorism 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. None of the above provisions say that the person

committing the aforesaid offences must be the member of a

terrorist organization or a gang. As per the aforesaid provisions,

it is sufficient if a person raises or provides funds, participates in

conspiracy, organizes the terrorist camps to aid the terrorist

acts directly or indirectly. Any act preparatory to the

commission of terrorist act is also punishable. Therefore, it is

necessary to examine the term terrorist act which is defined in

Section 2(k) as the act contemplated under Section 15 of the

UAP Act. Section 15 reads as follows:

" Section 15. Terrorist act.--(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security [economic security,] or sovereignty of India or with intent to strike terror or likely to strike CRL.A.No.1527/2022

terror in the people or any section of the people in India or in any foreign country,--

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--

(i) death of, or injuries to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or

(iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or

(iv) damage or destruction of any property in India or in a foreign country 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

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any CRL.A.No.1527/2022

public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or (an international or inter-governmental organisation or any other person to do or abstain from doing any act; or commits a terrorist act.

Explanation.--For the purpose of this sub-section,--

(a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;

(b) "high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.

(2) The terrorist act includes an act which constitutes an

offence within the scope of, and as defined in any of the

treaties specified in the Second Schedule."

19. In the above Section the term "Whoever" refers to

any person committing any act mentioned therein with an CRL.A.No.1527/2022

intention to threaten or likely to threaten the unity, integrity

security and sovereignty of India or doing such act not only to

strike the terror but which is likely to strike the terror amounts

to terrorist act. Such person need not be a member of any

terrorist organization or a terrorist gang.

20. It is no doubt true that as per Section 2(m) terrorist

organization is necessarily an organization enlisted in the

schedule and Al Hind was not so enlisted. However, terrorist

gang defined in Section 2(l) does not contemplate such

enlistment. Section 2(l) reads as follows:

"2(l) "terrorist gang" means any association, other than terrorist organization, whether systematic or otherwise, which is concerned with or involved in terrorist act."

21. The above provision shows that an informal body of

individuals is also covered under the definition. That need not

be necessarily involved in terrorist act as defined in Section 15.

It is enough even if such gang is concerned with the terrorist

act. Merrian-Webster Dictionary defines the word 'concerned' CRL.A.No.1527/2022

as "interested, anxious, worried, interestingly engaged,

culpably involved."

22. The Hon'ble Supreme Court in para 4 of the

judgment in Radha Kishan Bhatia vs. The Union of India

and others12 interpreting the word 'concerned' in Section

167(8) of the Sea Customs Act, 1978 held as follows:

" 4. ........ It is immaterial what meaning be attributed to the word 'concerned'. It can have the meaning 'interest' as urged for the respondent. It may have the meanings 'involved' or 'engaged' or 'mixed up'. The requirements of the expression 'concerned in any such offence' in the penalty part of S.167(8) are that the person to be penalised must be interested or involved or engaged or mixed up in the commission of the offence referred to in the first part of S.167 (8). The interest or the involvement or the engagement or the mixing up of the appellant in the commission of the offence must be at a stage prior to the completion of the offence of illegal importation of gold into the country........"

(Emphasis supplied)

23. The above discussion goes to show that any member

of the terrorist gang or any individual who is concerned with a

AIR 1965 SC 1072 CRL.A.No.1527/2022

terrorist act and done anything in aid of such act, even if he is

not the actual perpetrator of the terrorist act defined under

Section 15 of the UAP Act is covered under Sections 17, 18, 18A

and 20 of the UAP Act. Such interpretation defeats the object

and purpose of those provisions and ultimately the UAP Act. Law

should be applied adopting purposive interpretation. Therefore

there is no merit in the contention that to invoke Section 43D(5)

of the UAP Act the accused being a member of a terrorist

organization or involving in the violent acts of causing death or

injury to any person or persons or destruction of any property by

using the explosives, fire arms or lethal weapons etc is a pre-

condition.

24. Admittedly the judgment of the coordinate bench of

this Court in Saleem Khan's case (accused No.11) referred to

supra which is relied on by the learned counsel for the appellant

has not attained finality, as the challenge to the said order is

pending before the Hon'ble Supreme Court. More over accused

No.11 who was the appellant therein is not facing the allegations

of raising funds for terrorist activity. In this case the charge

sheet records contain the bank statements whereunder he had CRL.A.No.1527/2022

transferred the funds to accused No.1 who in turn was acting to

the tune of an ISIS handler. Therefore, on that count also that

judgment cannot be applied to the facts of the present case and

parity does not apply. Further another coordinate bench of this

Court in a later judgment in Irfan Pasha and another vs.

NIA13 in similar circumstances interpreting the word 'Whoever'

appearing in Section 15 of the UAP Act rejected the contention

that to attract the said section such accused should be a

member of a terrorist organization. We are persuaded to accept

the view taken in the said later judgment.

25. So far as the question whether the accusations made

against the appellant are prima facie true to apply Section

43D(5), the trial Court on analyzing the charge sheet material

had already once ruled against the appellant. He did not

challenge that finding/order. Thereby the same has attained

finality. Therefore, it is not open to him again to reagitate the

same point contending that acquiring tent materials etc itself

does not amount to terrorist act. Even otherwise, the charge

2022(5) Kar.L.J. 450 CRL.A.No.1527/2022

sheet contains the material to hold that there are reasonable

grounds for believing that the accusations against the appellant

are prima facie true.

26. Though learned counsel for the appellant relied on

host of judgments to substantiate his grounds, in the light of the

discussions made above, suffice it say that the said judgments

cannot be justifiably applied to the facts of the present case.

The appeal deserves no merit. Hence the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

Akc