Madras High Court
Hameed Aspar @ Hameed Asfar @ Aspar vs Union Of India Rep. By on 4 September, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
Crl.A.No.1147 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.09.2024
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
Crl.A.No.1147 of 2023
and
Crl.M.P.No.16751 of 2023
Hameed Aspar @ Hameed Asfar @ Aspar ... Appellant
Vs.
Union of India Rep. by
The Inspector of Police,
National Investigation Agency,Chennai.
(R.C.No.01/2019/NIA/DLI) ... Respondent
Prayer :- The Criminal Appeal filed under Section 21(1) of National
Investigation Agency Act, 2008, is filed to set aside the order passed in
Crl.M.P.No.840 of 2023 dated 28.08.2023 on the file of the Hon'ble Special
Court for Exclusive Trial for Bomb Blast Cases Chennai at Poonamallee,
Chennai as illegal.
For Appellant : Mr.I.Abdul Basith
For Respondents : Mr.R.Karthikeyan,
Special Public Prosecutor for NIA,
assisted by
Mr.G.S.Siddi Ramulu,
1/8
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Crl.A.No.1147 of 2023
Senior Public Prosecutor for NIA.
JUDGMENT
(Order of the Court was delivered by S.M.Subramaniam J.)
Under assail is the judgment dated 28.08.2023, passed in
Crl.M.P.No.840 of 2023 in Spl.S.C.No.25 of 2022 (C.C.No.1 of 2021)
2. The 7th accused is the petitioner before us. A discharge petition
under Section 227 Cr.P.C. was instituted before the Special Court which was
rejected, resulted in filing of the present criminal appeal before this Court.
3. The learned counsel for the petitioner Mr.I.Abdul Basith would
mainly contend that no lethal weapons have been recovered during the course
of investigation nor any prohibited materials were recovered from the
petitioner. In the absence of any such recovery of weapons, the charge framed
against the petitioner under Section 15 r/w 18 of the Unlawful Activities
(Prevention) Act, 1967 is untenable.
4. Mr.I.Abdul Basith would further contend that there is no material
available on record to implicate the petitioner (A-7). Usage of Whatsapp in
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the mobile phone, per se would not constitute an offence under the Unlawful
Activities (Prevention) Act, 1967, and therefore, the petitioner was wrongly
implicated in the criminal case and therefore, the Trial Court has committed
an error in dismissing the discharge petition. The learned counsel for the
petitioner would contend that charges are vague and not specific. Therefore,
the Trial cannot be proceeded with and the petitioner is entitled to be
discharged on the ground that the charges are vague.
5. Mr.R.Karthikeyan, learned Special Public Prosecutor, appearing on
behalf of the respondent would strenuously oppose by stating that
incriminating materials are available to implicate the petitioner in the case
registered under the Unlawful Activities (Prevention) Act, 1967. Role of the
petitioner/ A-7 in the charge sheet reads as under:
“Role of A-7 in Charge Sheet:
A7-Hameed Para 17.1, 17.3, 17.5, 120B, 153A, 121A & 122 IPC and 13
Aspar 18.7 & 18 of UA(P) Act 1967
Accused List of Witness Speak Documents Mo's
A7-Hameed LW-1 to 9, LW-35, LW-36, LW- D-95, D-99, MO-28, MO-29
Aspar 48, LW-49, LW-61 and LW-64 D-100, D-118 and MO-42.
The above said LWs, Documents and MOs reveal
that the accused is involved in the conspiracy to the
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preparatory to terrorist act along with other accused
persons.
Thus, it could be seen that there are prima facie
materials against the appellant herein to frame charges
and hence the averments to the contrary are hereby
denied.”
6. The statement of LW1 under Section 161(3) Cr.P.C. would reveal
about the active participation of the petitioner and his involvement in
commission of crime under Unlawful Activities (Prevention) Act, 1967. The
said statement reveals that the accused persons, in the house of
Mr.Mohammed Rifas (A2), met frequently and attempted to make
arrangements for collection of donation for waging war against India and to
disrupt the communal harmony. When specific statements are available and
materials are recovered from the accused persons, the petitioner has to face
the trial and thus, the Trial Court has rightly rejected the discharge petition.
7. Section 15 of the Unlawful Activities (Prevention) Act, 1967 defines:
"Terrorist Act". Sub Section (1) of Section 15 of the Act indicates that
“whoever does any act with intent to threaten or likely to threaten the
unity, integrity, security [, economic security,] or sovereignty of India or
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with intent to strike terror or likely to strike terror in the people or any
section of the people in India or in any foreign country,”— by using the
modes stipulated in sub-clauses. Therefore, it would be sufficient that an
element of likely to threaten the unity, integrity, security, sovereignty is
established for the purpose of prosecuting a person.
8. Section 18 provides “Punishment for conspiracy, etc.”— which
states that “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 be less
than five years but which may extend to imprisonment for life, and shall
also be liable to fine.” Therefore, Section 18 also unambiguously stipulates
that attempt to commit or advocates or preparatory to the commission of a
terrorist act would be sufficient for the purpose of imposing punishment
under Section 18.
9. Therefore, the contention of the petitioner that recovery of lethal
weapon or fire-arm is to be made for invoking the provision of Unlawful
Activities (Prevention) Act, 1967, is not in consonance with the spirit of the
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provisions as elaborated above and such a contention therefore, stands
rejected.
10. The Trial Court has elaborately considered the materials collected
during the investigation by the respondents and considered the scope of
Section 227 of Cr.P.C. relying on the judgments of the Hon'ble Supreme
Court of India in the case of Union of India Vs. Prafulla Kumar Samal1.
and the case of Sajjan Kumar Vs. Central Bureau of Investigation 2.. The
principles laid down by the Apex Court in Sajjan Kumar's case (supra) was
also applied with reference to the grounds raised by the petitioner before the
Trial Court. The Trial Court formed an opinion that there are sufficient
grounds against the petitioner and there is no prima facie case to proceed
with the accused.
11. We do not find any infirmity or perversity in respect of the findings
made and the decision arrived at by the Special Court. Thus, the present
Criminal Appeal stands dismissed. Consequently, connected miscellaneous
petition is closed.
1. (1979) 3 SCC 4
2. (2010) 9 SCC 368
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12. However the Trial Court shall proceed with the trial uninfluenced
by the observations, if any made, with reference to the facts in the present
order.
(S.M.S.J.,) (V.S.G.,J.)
04.09.2024
Index : Yes/No
Speaking order/Non-Speaking order
Neutral Citation : Yes/No
(sha)
To
1. Special Court for Exclusive Trial for Bomb Blast Cases Chennai,
Poonamallee, Chennai.
2. The Inspector of Police,
National Investigation Agency,
Chennai.
3. The Public Prosecutor,
High Court of Madras.
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S.M.SUBRAMANIAM, J.
and
V.SIVAGNANAM, J.
(sha)
04.09.2024
https://www.mhc.tn.gov.in/judis
