Madras High Court
Subair vs The National Investigation Agency on 1 October, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
2024:MHC:3507
CRL.A.Nos.411 & 282 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.09.2024
PRONOUNCED ON : 01.10.2024
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
CRL.A.Nos.411 & 282 of 2024
and
CRL.M.P.No.4266 of 2024
1.Subair ... Appellant
in Crl.A.No.411/2024
2.Nabeesa Sulaiman ... Appellant
in Crl.A.No.282/2024
Vs.
The National Investigation Agency,
Represented by Inspector of Police,
NIA, Chennai. ... Respondent
in both Crl.As
Common Prayer: Criminal Appeals filed under Section 21 of National
Investigation Agency Act, 2008, to call for the records relating to the order
dated 06.02.2024 made in Crl.M.P.No.2476 of 2023 in Spl.S.C.No.17 of
2022 on the file of Special Court under the National Investigation Agency
Page 1 of 24
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Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast and POTA
Cases), Chennai at Poonamallee, Chennai – 600 056 and set aside the order
of attachment and allow above appeals.
For Appellants : Mr.R.Vivekananthan
(in both Crl.As)
For Respondent : Mr.AR.L.Sundaresan
Additional Solicitor General of India
Assisted by Mr.R.Karthikeyan
Special Public Prosecutor
[For NIA]
(in both Crl.As)
COMMON JUDGMENT
S.M.SUBRAMANIAM, J.
FACTUAL MATRIX:
The present criminal appeals have been instituted challenging the order
dated 06.02.2024 passed in Crl.M.P.No.2476 of 2023 in
R.C.No.03/2018/NIA/DLI.
2. The National Investigation Agency represented by Inspector of
Police / respondent filed a petition under Section 33 of Unlawful Activities
(Prevention) Act, 1967 [hereinafter referred as “UA(P) Act”] seeking
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attachment of the property of the 1st appellant / Accused No.3, who is the son
of 2nd appellant Mrs.Nabeesa Sulaiman.
2. It is not in dispute between the parties that the Spl.S.C.No.17 of
2022 is pending on the file of the Special Court under the National
Investigation Agency Act, 2008. Charges were framed by the Trial Court on
15th February, 2022 and at the time of filing the petition 36 prosecution
witnesses deposed and examined.
3. On 22.09.2016 at about 23:15 hours, Mr.C.Sasikumar,
Spokesperson, Hindu Munnani (Front), Coimbatore was attacked
indiscriminately by some unknown persons. He sustained grievous injuries
on the neck, head, shoulder, hands and succumbed to his injuries in the KG
Hospital at Coimbatore. Thudiyalur Police Station, Coimbatore Rural District
registered FIR No.735 of 2016, under Section 302 of Indian Penal Code
(IPC) on 23.09.2016. Initially the investigation was taken over by the Special
Investigation Division, CBCID, Coimbatore, considering the gravity of the
offence. The Special Investigation Division (SID), Crime Branch, Crime
Investigation Department (CB-CID) came to know that the A1 to A4 being
members of Popular Front of India, banned organisation, conspired to strike
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terror on particular section of people, and to create terror among the public at
large by brutally murdering Mr.C.Sasikumar. The SID, CB-CID, Coimbatore
arrested A1 to A4 and subsequently they were enlarged on bail. During the
course of investigation, the SID, CB-CID found that the incident was not a
case of simple murder, but a terrorist act committed as part of waging violent
Jihad against Non-Muslims with an intention to strike terror in a section of
people and general public and to create panic among them. The above facts
were confirmed through the confession statements of Sadham Hussain-A2
and Subair-A3. Accordingly, the Investigating Officer invoked Sections 120-
B and 153-A of IPC and Sections 16 and 18 of UA(P) Act, 1967.
4. The Government of India, Ministry of Home Affairs, vide their
order dated 22.01.2018 entrusted the investigation to the National
Investigation Agency as per powers conferred under Section 6(4) read with
Section 8 of National Investigation Agency Act, 2008 (herein after referred
as “NIA Act”). Accordingly, NIA took up investigation of the case by re-
registering the original case on 29.01.2018. After collecting sufficient
prosecutable evidence, the NIA filed chargesheet against Sadham Hussain-
A2 and Subair-A3 for the commission of offence under Section 302 read with
Sections 120-B, 302 read with 34, 153(A)(1)(b) of IPC and Sections 16(1)(a),
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18 and 20 of UA(P) Act on 07.04.2018. Subsequently, NIA had filed
supplementary chargesheet against the accused Abuthagir-A1 for the
offences under Section 18 of UA(P) Act and against accused Mohammed
Mubarak-A4 under Section 302 read with Sections 120B, 302 read with 34,
154(A)(1)(b) of IPC and Sections 16(1)(a), 18 and 20 UA(P) Act before the
Special Court on 21.06.2018. The Special Court took cognizance of the case
and numbered as CC.No.3 of 2018 and CC.No.5 of 2018 respectively and
trial is underway.
5. The Inspector General of Registrations, Registration Department,
Government of Tamil Nadu on 08.08.2023 provided list of immovable
properties belonging to the accused persons in the instant case. A search in
the database revealed that a gift of Settlement Deed (Registered Document
No.2268 of 2020) was handed over by (Subair-A3) to his mother Nabeesa
Sulaiman / 2nd appellant herein in 2020. The Settlement Deed reads that a part
of the property with Survey No.2907/2012 purchased by Subair in 2012 was
handed over to his mother as Settlement in 2020 i.e., after commission of the
offence in 2016 and after filing of chargesheet in apparent anticipation of
action. The details in this regard has been provided by Sub Registrar,
Peelamedu, Coimbatore on 11.08.2023.
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6. Based on the above details, the NIA filed petition under Section 33
of UA(P) Act seeking attachment of property of Accused No.3, who is facing
trial. The Trial Court considered the petition and the petition mentioned
property was attached. Having aggrieved, the appellant / A3 filed the present
appeal.
CONTENTIONS OF THE APPELLANTS:
7. Mr.R.Vivekananthan, learned counsel for the appellants would
mainly contend that A3 purchased subject property on 28.08.2012 measuring
600 Sq.ft. The Chargesheet was filed on 07.04.2018. Additional chargesheet
was filed on 21.06.2018. The Settlement Deed was executed in favour of his
mother on 10.08.2020 settling 300 Sq.ft of property. Under these
circumstances, invoking Section 33 for attaching the said properties is
beyond the scope of provisions of UA(P) Act.
8. Mr.R.Vivekananthan, would further contend that Chapter V of
UA(P) Act, deals with “Forfeiture of proceeds of terrorism or any property
intended to use for terrorism”. The term “Proceeds of Terrorism” as defined
under Section 2(g) of UA(P) Act denotes the properties, which have been
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obtained from commission of any terrorist act or acquired through funds
traceable to a terrorist act or any property used or intended to be used, for the
purpose of terrorist act / terrorism. Therefore, the NIA has to establish the
property purchased by the appellant / A3 in the year 2012 is falling under the
definition of “proceeds of terrorism” or acquired through funds traceable to a
terrorist act. In the absence of establishing link between the purchase of
property and proceeds of terrorism, the attachment made under Section 33 is
beyond the scope of the provisions of UA(P) Act.
9. The prosecution in the present case has no locus standi to file an
application under Section 33 of UA(P) Act as it does not confer any power on
the Investigating Agency to file an application for attachment. Whereas,
Section 25 of the Act empowers the Agency to make an order of attachment.
Since NIA has not chosen to attach the property under Section 25 of the
UA(P) Act, petition filed under Section 33 before the Special Court is
untenable.
10. In support, the learned counsel for the appellants relied on the
judgment of the Hon'ble Supreme Court of India in the case of People's
Union For Civil Liberties and Another vs. Union of India1, wherein, the
1. (2004) 9 SCC 580
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Hon'ble Apex Court considered the meaning of Section 2(1)(c) of the
Prevention of Terrorism Act, 2002 [hereinafter referred as “POTA”] relating
to “proceeds of terrorism”. Section 2(1)(c) of POTA contemplates “Proceeds
of Terrorism” shall mean “all kings of properties which have been derived or
obtained from commission of any terrorist act or have been acquired through
funds traceable to a terrorist act, and shall include cash, irrespective of person
in whose name such proceeds are standing or in whose possession they are
found”.
11. Relying on the above judgment, the appellants would submit that in
the present case, the respondent has not established that the subject property
purchased by the appellant in the year 2012 have been obtained from
commission of any terrorist act or have been acquired through funds traceable
through a terrorist act. The provisions of UA(P) Act is also akin to the
provisions under POTA. Therefore, the said principles laid down by the
Hon'ble Supreme Court is to be adopted.
12. In the case of Santhosh Construction vs. Union of India2, the
Division Bench of Jharkand at Ranchi considered the scope of Section 33 of
UA(P) Act. The Jharkhand High Court held that the provisions as contained
2. 2023 SCC Online Jhar 300
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under Section 33 of the Act, 1967 does imply that there is reason to believe
that it is proceeds of the terrorism, the same can either be seized in course of
investigation by the Investigating Agency under the provision of Section 25
or in course of trial by the Court under the provision of Section 33 of the Act,
1967 i.e., for the purpose of not allowing the said proceeds to be used in the
terrorist activities so as to achieve the very object and intent of the Act.
REPLY BY THE RESPONDENT:
13. Mr.AR.L.Sundaresan, learned Additional Solicitor General of India
appearing on behalf of the National Investigation Agency would oppose by
stating that the interpretation of Sections 25 and 33 of UA(P) Act, 1967 have
been misconstrued by the appellants. The circumstances warranting
invocation of Section 25 is not comparable with the application under Section
33 of UA(P) Act for attaching the property through Court during the course
of trial.
14. At the first instance, the learned Additional Solicitor General of
India would contend that the Division Bench of Jharkhand High Court
judgment would have not application with reference to the facts of the
present case. More so, in the said judgement the scope of Section 33 has not
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been independently interpreted with reference to the facts. The general
observations made by the High Court of Jharkhand may not be of any avail to
the appellants so as to succeed in the present criminal appeal. Regarding the
judgment of the Hon'ble Supreme Court in People's Union for Civil Liberties
case cited supra, the learned Additional Solicitor General of India would
contend that the case was under the provisions of POTA. In paragraph 29, the
Hon'ble Supreme Court considered the meaning of “Proceeds of Terrorism”
and the said principles are relating to the attachment of property by the
Investigating Officer under Section 25 of UA(P) Act and the scope of Section
33 was not considered by the Hon'ble Supreme Court. Therefore, the said
judgments and the facts therein are distinguishable.
15. Learned Additional Solicitor General of India, further said that
with reference to the Jharkhand High Court judgment in Santhosh
Construction's case cited supra, an appeal was preferred by M/s. Santhosh
Construction and the Hon'ble Supreme Court of India dismissed the SLP on
07.08.2023 with an observation that “the question(s) of law involved in this
case is left open to be considered in an appropriate case”. Therefore, the said
judgment cannot be construed as precedent for the purpose for considering
the facts of the present case.
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16. The UA(P) Act, 1967 was enacted to provide for more effective
prevention of certain unlawful activities of individuals and associations and
for dealing with terrorist activities and for matters connected therewith.
ANALYSIS:
17. Considering the submissions of the parties to the lis, let us now
look into the relevant provisions of the UA(P) Act, 1967 to consider the
issues raised in the present Criminal Appeals.
18. Section 2(1)(g) defines “Proceeds of Terrorism” means; (i) “all
kinds of properties which have been derived or obtained from commission of
any terrorist act or have been acquired through funds traceable to a terrorist
act, irrespective of person in whose name such proceeds are standing or in
whose possession they are found; or (ii) any property which is being used, or
is intended to be used, for a terrorist act or for the purpose of an individual
terrorist or a terrorist gang or a terrorist organisation. Explanation – For the
purposes of this Act, it is hereby declared that the expression “proceeds of
terrorism” includes any property intended to be used for terrorism”.
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19. Chapter V of the Act deals with “forfeiture of proceeds of terrorism
or any property intended to be used for terrorism”. Any property intended to
be used for terrorism was inserted by Act 3 of 2013 with effect from
01.02.2013.
20. Section 24-A deals with “Forfeiture of proceeds of terrorism”.
Section 25 provide “Powers of Investigating Officer and Designated
Authority and appeal against order of Designated Authority”.
21. Sub Section (1) to Section 25 stipulates that “If an officer
investigating an offence committed under Chapter IV or Chapter VI, has
reason to believe that any property in relation to which an investigation is
being conducted, represents proceeds of terrorism, he shall, with the prior
approval in writing of the Director General of the Police of the State in which
such property is situated, make an order seizing such property and where it is
not practicable to seize such property, make an order of attachment directing
that such property shall not be transferred or otherwise dealt with except with
the prior permission of the officer making such order, or of the Designated
Authority before whom the property seized or attached is produced and a
copy of such order shall be served on the person concerned”.
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22. Section 25 amplifies that the an Officer investigating an offence is
empowered to seize property involved in proceeds of terrorism. Therefore, to
invoke powers conferred under Section 25, the Investigating Officer has to
establish that the property sought to be seized is “proceeds of terrorism”
within the meaning of Section 2(1)(g) of the UA(P) Act. Therefore, powers
of the Investigating Officer to seize, if has reason to believe, that any
property in relation to which an investigation is conducted represents the
proceeds of terrorism, he shall seize the said property. Therefore, the powers
under Section 25 is to be exercised by the Investigating Officer during
conduct of investigation.
23. Section 33 deals about Forfeiture of property of certain persons.
Sub Section (1) stipulates “Where any person is accused of an offence under
Chapter IV or Chapter VI, it shall be open to the court to pass an order that
all or any of the properties, movable or immovable or both, belonging to him,
shall, during the period of such trial, be attached, if not already attached
under this Chapter”. Section 33(1) provides power to the Court to pass an
order of attachment during the trial. Therefore plain reading of Sections 25
and 33 would reveal that both are not connected, Section 25 confers power to
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the Investigating Officer and Section 33 provides power to the Court to attach
the property during trial. Section 33 is a stand alone provision provides power
to the Court to attach the property during course of trial. The distinction
would be under Section 25 an Investigating Officer if has reason to believe
that property represented proceeds of terrorism, he shall with the approval in
writing of the Director General of Police or Director General of National
Investigation Agency shall seize the property.
24. However, Section 33 is independent and stand alone provision
providing powers to the Courts to attach the property during the course of
trial. The circumstances under which the Court can attach the property have
been narrated under Section 33 itself. In order to invoke the powers conferred
under Section 33 by the Court, an application is necessary from the NIA.
Therefore, the contention of the petitioner that the respondent has no locus
standi to file a petition under Section 33 is untenable. Court has to exercise
the powers under Section 33 if an application is moved for attaching the
property by the Investigating Agency.
25. Section 33 states that “it shall be open to the court to pass an order
that all or any of the properties, movable or immovable or both, belonging to
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an accused, the power to attach the property shall be exercised during the
period of trial”. Section 33 do not speak about the property in relation with
“proceeds of terrorism”. Therefore, all or any of the properties, movable or
immovable or both, belonging to an accused is attachable by the order of the
Court under Section 33 of UA(P) Act.
26. The legislative intention is to provide balance between the powers
conferred on the Investigating Officer and the Court. The power to attach the
property is conferred on the Investigating Officer, if such property is
identified as “proceeds of terrorism”. However, if the Investigating Agency
found that other properties are also to be attached, while dealing with the
terrorist activities under the UA(P) Act, then the Investigating Agency has to
file an application before the Court concerned for passing an order of
attachment.
27. Let us now consider the scope of attachment made by the Court in
exercise of the powers conferred under Section 33 UA(P) Act, 1967.
28. Sub Section (2) to Section 33 clarifies that “Where a person has
been convicted of any offence punishable under Chapter IV or Chapter VI,
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the court may, in addition to awarding any punishment, by order in writing,
declare that any property, movable or immovable or both, belonging to the
accused and specified in the order, shall stand forfeited to the Central
Government or the State Government, as the case may be, free from all
encumbrances”.
29. The very objective of the Act is to impose by law reasonable
restrictions in the interest of the sovereignty and integrity of India. Prevention
of terrorism has been globally viewed seriously and by virtue of resolution
adopted by Security Council of United Nations measures are taken by all the
States to combat international terrorism.
30. After due consideration and examination, the Government has to
cover various facets of terrorism, terrorist activities, including financing of
terrorism, which were not fully covered before the enactment of UA(P) Act.
31. The Unlawful Activities (Prevention) Amendment Bill, 2011 inter-
alia provides;
(i) for attachment or forfeiture of property equivalent to the counterfeit
Indian currency involved in the offence, including the face value of such
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currency which are not defined to be of high quality but are part of the
common seizure along with the high quality counterfeit Indian currency;
(ii) for attachment or forfeiture of property equivalent to or the value of
the proceeds of terrorism involved in the offence;
(iii) for confiscation of movable or immovable property on the basis of
the material evidence where the trial cannot be concluded on account of the
death of the accused or the accused being declared as a proclaimed offender
or any other reason.
32. With reference to the objectives and to prevent terrorist activities,
the properties both movable or immovable belonging to an accused,
necessarily to be attached, if the Court finds that such attachment is just and
necessary. Sub Section (2) to Section 33 proceeds by stating that the Court
may in addition awarding any punishment forfeit any property movable or
immovable or both belonging to an accused. In order to impose the
punishment under Sub Section (2) powers are conferred on the Court under
Section 33 to attach the properties.
33. Sub Section (4) to Section 33 states that “Where a person is
accused of an offence punishable under Chapter IV or Chapter VI, the court
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may pass an order directing attachment or forfeiture, as the case may be, of
property equivalent to or the value of the proceeds of terrorism involved in
the offence”. Therefore, attachment of all or any of the properties movable or
immovable or both belonging to an accused may under Section 33(1) is an
interim measure and cannot be construed as a final decision taken by the
Court. Such attachment of property can be defended during trial by the
accused persons. Once the property is attached under Section 33(1), the said
properties, which may not be proceeds of terrorism can be dealt with by the
Courts at the time of passing final judgment under Sub Sections (2) to (5) of
Section 33.
34. The powers of the Court conferred under Section 33 is wider
enough to attach all or any of the properties during the course of trial and take
final decision, regarding such attached properties and at the time of passing
judgment. Thus, the application made by the NIA under Section 33(1) for
attachment of all or any of the properties, need not be the properties in
connection with proceeds of terrorism. It is an interim measure and the
attachments made during the pendency of the trial are to be dealt in
accordance with Sub Sections (2) to (5) of Section 33.
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35. Though the provision appears to be draconian, since it deals with
all the properties of a person involved in terrorist activities, the Parliament
thought fit to confer powers to the Court to make such attachment after
conducting an enquiry. Therefore, this Court do not find any justifiable
reason to consider the contention of the appellants that the NIA has no locus
standi to file an application under Section 33. Courts has to exercise powers
under Section 33 if any applications are received from the Investigating
Agency for attachment of property during the pendency of trial.
36. It is relevant to consider the judgment of the Constitution Bench of
the Hon'ble Supreme Court of India in the case of Kartar Singh vs. State of
Punjab3, wherein, the Constitution Bench in a similar provision under the
Terrorist and Disruptive Activities (Prevention) Act, 1987, held as follows;
“150. This argument is resisted by the learned
Additional Solicitor General contending that Section 8
only vests the property or interest of the ‘terrorist’ in
the State and does not forfeit the third party's interest
and that the third party can always enforce its rights
against the ‘terrorists’ in respect of its interest in the
forfeited property according to law notwithstanding the
forfeiture.
3. (1994) 3 SCC 569
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151. Section 8(1) of the Act gives discretionary
power to the Designated Court while awarding any
punishment on conviction of an offence under the Act
or any rule made thereunder, to pass an order in writing,
declaring that any property whether moveable or
immovable or both, specified in the order belonging to
the convicted person, shall stand forfeited to the
Government free from all encumbrances.
152. Sub-section (2) of Section 8 states that it is
open to the Designated Court trying an accused for any
offence under the Act or any rule made thereunder to
pass an order attaching all or any of the properties
belonging to the accused during the period of his trial
and in case the trial ends in conviction, the property will
stand forfeited to the Government free from all
encumbrances.
153. ..............
154. ..............
155. .............
156. The discretionary power given to the
Designated Court under Section 8(1) and (2) is to be
exercised under strict contingencies, namely that (1)
there must be an order of forfeiture and that order must
be in writing; (2) the property either moveable or
immovable or both must belong to the accused
convicted of any offence of TADA Act or rule
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thereunder; (3) the property should be specified in the
order; (4) even though attachment can be made under
Section 8(2) during the trial of the case, the forfeiture
can be ordered only in case of conviction and not
otherwise.
157. The very fact that the order should be in
writing implies that the Designated Court must give
reasons for such an order even though the section does
not specifically require the Designated Court to record
its reasons for so doing, because the word ‘order’ even
according to the lexicon meaning is that it is a decision
or direction either interlocutory or preliminary or final
by the court trying the offence. Secondly, under Section
19 of the Act, an appeal lies straight to the Supreme
Court as a matter of right from any order not being
interlocutory order both on facts and law.”
37. The Special Court in the present case has considered the scope of
Section 2(g) and Section 33 of UA(P) Act, 1967. The understanding of the
Special Court to invoke the powers conferred under Section 33 of UA(P) Act
is in consonance with the spirit and the legislative intention explicitly
traceable under the said provision. Thus, the order of attachment made by the
Special Court under Section 33 is in accordance with Section 33 and we do
not find any infirmity of perversity.
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38. Accordingly, the order under challenge is confirmed and
consequently the Criminal Appeals stand dismissed. Connected
Miscellaneous Petition is closed.
[S.M.S., J.] [N.S., J.]
01.10.2024
Jeni
Index : Yes
Speaking order
Neutral Citation : Yes
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To
1.The District and Sessions Judge,
Special Court under the National Investigation Agency Act, 2008,
Sessions Court for Exclusive Trial of Bomb Blast/POTA Cases,
Poonamallee, Chennai.
2.The Inspector of Police,
The National Investigation Agency,
NIA, Chennai.
3.The Special Public Prosecutor,
High Court of Madras,
Chennai – 600 104.
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S.M.SUBRAMANIAM, J.
and
N.SENTHILKUMAR, J.
Jeni
CRL.A.Nos.411 & 282 of 2024
01.10.2024
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