Patna High Court
Md. Yaqub Khan @ Sultan @ Usman vs The Union Of India Through The National ... on 18 April, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.252 of 2024
Arising Out of PS. Case No.-31 Year-2022 Thana- NIA District- Patna
======================================================
Md. Yaqub Khan @ Sultan @ Usman S/o Md. Ayub Khan R/o Mohalla -
Mogalpur, P.S. - Mehsi, District - East Champaran
... ... Appellant
Versus
The Union Of India Through The National Investigation Agency Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 462 of 2024
Arising Out of PS. Case No.-31 Year-2022 Thana- NIA District- Patna
======================================================
Shahid Reza son of Azhar Alam R/o- Ward No 10 Officer Colony Chakia East
Champaran, Ps- Chakia Dist- East Champaran
... ... Appellant
Versus
The Union Of India Through National Investigation Agency Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 252 of 2024)
For the Appellant/s : Mr. Syed Masleh Uddin Ashraf, Advocate
For the Respondent/s : Dr. Krishna Nandan Singh (ASG)
Mr. Manoj Kumar Singh, Spl.PP
Mr. Ankit Kumar Singh (JC)
Mr. Pramod Kumar (PP, NIA)
(In CRIMINAL APPEAL (DB) No. 462 of 2024)
For the Appellant/s : Mr. Akash Anand, Advocate
For the Respondent/s : Dr. Krishna Nandan Singh (ASG)
Mr. Manoj Kumar Singh, Spl.PP
Mr. Ankit Kumar Singh (JC)
Mr. Pramod Kumar (PP, NIA)
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 18-04-2025
Heard learned counsel for the appellants and learned
counsel for the National Investigating Agency.
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
2/26
2. These two appeals are arising out of the common
order dated 20.01.2024 (hereinafter called 'the impugned orders')
passed by learned Special Judge, NIA, Patna, Bihar (hereinafter
called the 'learned trial court') in Special Case No. 7 of 2022/R.C.
No. 31 of 2022.
3. By the impugned orders, the learned trial court has
been pleased to reject the prayer for bail of the appellants during
the ongoing trial. Both the appellants are aggrieved by and
dissatisfied with the orders of the learned trial court.
4. In order to appreciate the matter, it would be
necessary to take note of the prosecution case.
Prosecution Case
5. The prosecution case is based on a self-written report
dated 12.07.2022 of Akrar Ahmed Khan, the Inspector of Police-
cum-Officer-in-Charge of Phulwarisharif Police Station, Patna. In
the written report, the informant alleged that on 11.07.2022, at
about 7:30 PM, he got an information that some miscreants are
planning to do some occurrence during the proposed Patna visit of
the Prime Minister of India, they are doing training for a fortnight
for this purpose. On this information, the Officer-in-Charge of
Phulwarisharif Police Station brought it to the notice of the senior
officers. The senior officers constituted a team of police officers
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
3/26
and with the said team, the Officer-in-Charge/informant reached
'Ahmed Palace' situated in Naya Tola Nahar under Phulwarisharif
Police Station. On reaching there, in course of verification, it came
to his notice that some unknown persons are holding meeting on
the second floor of the 'Ahmed Palace' during last two months and
visit of unknown persons are frequent there. The informant came
to know that during 6th-7th July also, a meeting had taken place in
which some suspicious people had come.
6. It is alleged that as the informant was conducting the
verification, in the meantime, Md. Jalaluddin (A-2) and Athar
Parvez (A-1), who are the owner of 'Ahmed Palace', came there.
In their presence, in presence of two independent witnesses, when
the second floor of 'Ahmed Palace' was searched, in course of
search from a room, he found a literature, namely, 'India 2047
towards Rule of Islamic India, Internal Document not for
circulation' which was in seven pages and there were five copies
of the same. In search, thirty pamphlets written in 'Urdu' and
twenty five pamphlets written in 'Hindi' of Popular Front of India,
20 February 2021, forty nine flags made of clothes, red, green and
white bearing blue colour star on the flag, booklets printed in
'Urdu' were found. The search team also found thirty chairs placed
in the big hall and on a table, photocopy of lease deed on a non-
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
4/26
judicial stamp paper, showing the name of house owner of Farhat
Bano, wife of Jalaluddin and the name of lessee as Athar Parvez,
son of Abdul Qayum Ansari was found. The house owner informed
that the second floor of the building was taken by Athar Parvez for
purpose of giving training and training was provided on 6 th-7th July
2022 in which people from other states had come and several
doubtful person had also received training there. Athar Parvez,
however, denied but when the police enquired from him in
presence of Jalaluddin and local people, he told them that he was
an active member of SIMI organization and after the SIMI
organization was banned and the members of the same were in jail,
he was providing them legal help. He informed that at present he
was District General Secretary of SDPI party. He disclosed that the
parcha, flags and the booklets are of Popular Front of India (in
short 'PFI'). At the instance of the PFI, he is adding the former
members of SIMI with this party and is establishing a secret
organization. He disclosed that the main object of the organization
is to take revenge against the atrocities upon Muslims and
whosoever makes comment or abuses Islam religion, he is targeted
and attacked. Recently, Nupur Sharma had said wrong against the
religion, against her steps are being taken to take the revenge. For
this reason, revenge had been taken in Amravati in Maharashtra
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
5/26
and Udaipur in Rajasthan. He further disclosed that in this
planning, other persons are also actively participating with him.
He named twenty five other persons who were members of the PFI
in different areas and were conducting the activities of the PFI. He
disclosed that there are other people whom he identifies by face
and all of them came and got training here and they are motivated
to raise their voice and unleash war against a particular community
of the local society.
The Officer-in-Charge conducted a raid in the house of Athar
Parvez in Mohalla, Gulistan from where a bag containing red,
green and white colour flags inscribed with a blue colour star on
the flag and copy of the lease deed were found. From the bag, the
documents known as India 2047 towards rule of Islamic India,
Internal document not for circulation and other documents were
also found. The contents of the documents India 2047 towards
Rule of Islamic India has been mentioned in the FIR which is
being reproduced as under:
"... Popular Front of India (PFI) is confident that
even if 10% of total Muslim population rally behind
it, PFI would subjugate the coward majority
community to their knees and being back the glory of
Islam in India.
External Help
In the scenario of full-fledged show down with
the State, apart from relying on ours trained PE
cadres, we would need held from friendly Islamic
countries. In the last few years, PFI has
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
6/26
developed friendly relationship with Turkey, a
flag-bearer of Islam. Efforts are on to cultivate
reliable friendship in some other Islamic
countries"
7. On the basis of self-written information, furnished by
the Officer-in-Charge of the Police Station, Phulwarisharif P.S.
Case No. 827 of 2022 was registered under Sections
120/120(B)/121/121(A)/153(A)/153(B)/34 IPC.
Materials collected during Investigation
8. As the investigation progressed, NIA gathered
materials which showed that even after the PFI was declared an
"unlawful association" under Section 3 of the Unlawful Activities
(Prevention) Act (hereinafter referred to as the 'UA(P) Act') on
27.09.2022
for a period of five years, these two appellants
remained active and in furtherance of their unlawful criminal
activities for extending the ideology of PFI, the appellant Md.
Yaqub Khan (A-27) shared video on social media to support
reconstruction of Babri Masjid at the same place where Ram
Mandir was being constructed.
9. The NIA seized digital articles from the possession of
accused Md. Yaqub Khan and Shahid Reza which were forwarded
to Central Forensic Science Laboratory, New Delhi and the
extracted data from the Samsung keypad mobile phone of Yaqub
Khan (A-27) has been found containing mobile numbers of Reyaz
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
Moarif (A-4), Shahid Reza (A-38), Md. Belal (A-30) saved in the
contact list. His conversation with Md. Tanweer Barkati (A-28)
and Md. Irshad Alam (A-36) were also found in the call log. The
digital article seized from the house search of FIR named accused
Reyaz Moarif (A-4) revealed a video relating to training of PFI
members at Chakia, District - East Champaran, Bihar in which
Md. Yaqub (A-27) along with other PFI members were found
undergoing training of PFI.
10. The NIA has found that in the end of January, 2023
while Ram Shila (Stones) were being taken to Ayodhya through
Mehsi, East Champaran, Bihar, Md. Yaqub Khan (A-27) shared a
video of the same on social media and had made an appeal to
support reconstruction of Babri Masjid instead, at that place. After
that post, he was opposed vehemently and trolled on social media
and scuffles took place between his supporting PFI group and the
group who commented on his communal post. Thereafter, Md
Yaqub Khan (A-27) in association with Md Irshad Alam (A-36)
and others conspired to attack a Hindu boy namely, Rishu on
04.02.2023 for commenting on his post on social media and for
scuffle with his group. He had arranged a firearm and ammunition
to eliminate the said Rishu, by wearing Bhagwa clothes to flare up
communal hatred. The NIA investigation revealed that the
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
ammunition was supplied to him by Md Aabid (A-29) through Md
Tanweer @ Md. Tanweer Barkati (A-28) in this criminal
conspiracy.
11. These facts have been revealed in paragraph 17.22 of
the charge-sheet No. 1D/2023 dated 12.01.2024 filed against these
two appellants under Sections 120B, 121, 121A, 122, 153A, 153B
IPC, Sections 25(1B)(a), 29 and 35 of the Arms Act and Sections
10, 13, 17, 18, 18A, 18B and 20 of UA(P) Act.
12. It is stated that in course of investigation, the NIA
conducted a search on 04.02.2023 at the locations/premises of Md.
Yaqub Khan (A-27) and his associates and thwarted an attempt of
PFI cadres in creating atmosphere of terror, spreading religious
enmity and hatred for extending the agenda of PFI. The mobile
number of Yaqub Khan @ Sultan @ Usman (A-27) was legally
intercepted. During examination, the co-accused namely Md. Mr.
Tanweer Barkati (A-28) and Md. Aabid (A-29) stated that they
were associated with Riyaz Moarif (A-4) and Md. Yaqub Khan @
Sultan @ Usman (A-27). The investigation revealed that Md.
Yaqub Khan @ Sultan @ Usman (A-27) was in possession of a
firearm and he asked Md Tanweer Barkati (A-28) to arrange
ammunition for further activities of the PFI. Md. Tanweer Barkati
(A-28) had knowledge that Aabid @ Aryan (A-29), an associate of
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
PFI and resident of his village was indulged in providing firearm
and ammunition. Therefore, he requested Aabid @ Aryan (A-29)
for providing him ammunition. Aabid @ Aryan provided him two
rounds in the playground of his village and accordingly Md. Yaqub
Khan @ Sultan @ Usman transferred Rs 1,000/- to Md Aabid @
Aryan through Paytm UPI. After some time, Md. Yaqub Khan @
Sultan @ Usman reached to them and received two rounds from
him. Their bank account statements confirmed payment of Rs.
1,000/- by Yaqub Khan (A-27) through Paytm in the HDFC Bank
Account of Md. Aabid on 23.01.2023. Md. Aabid @ Aryan (A-29)
also corroborated these facts.
13. The appellant Yaqub Khan @ Sultan @ Usman (A-
27) was arrested in the instant case on 19.07.2023. During his
custodial interrogation he informed inter alia that at the instance of
Riyaz Moarif (A-4), he got the youths to join the PFI and Riyaz
Moarif instructed them to purchase folding knife and iron rod. Md.
Yaqub Khan was allotted Chakia Unit, East Champaran in District
of Bihar. In January, 2023, he posted a video on the social media
that "Aaj tum patthar le jaa rhe ho Ram Mandir ke liye jo ki Babri
Masjid par banegi, humani anne wali nasle waha hi Babari
Masjid phir se banayegi, insaallah, Nara-e Takbeer Allah Hu
Akbar". The NIA found that this video was inflammatory in nature
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
and due to this, scuffle took place between the youth of two
communities.
Recovery of Arms and Ammunition
14. During the custodial examination, Md. Yaqub Khan
(A-27) disclosed that after the arrest of Tanweer Barkat (A-28),
Md. Belal @ Irshad (A-30) and Md. Aabid (A-29) by NIA, he
handed over his firearm, ammunition and sword to one of his
associates Shahid Reza (A-38) of Officer Colony, Chakia, East
Champaran for safe custody of the said weapons. On his
disclosure, the house of Shahid Reza (A-38) was searched on
05.08.2023 morning by NIA and one countrymade pistol, two
rounds ammunition, one air pistol, one sword and two knives were
recovered and seized. During confrontation with Md. Yaqub Khan
and Shahid Reza (these two appellants) in presence of independent
witnesses, they confessed handing and taking over of the seized
firearm and ammunition and other articles. The seizure list of the
arms and ammunition recovered from the house of Shahid Reza
and the arms which have been seized from the house of Shahid
Reza are exhibits and material exhibits respectively in the present
case.
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
Reasons for rejection of bail
15. The learned trial court having noticed the materials
collected by the NIA in course of investigation held as follows:
".... It can be seen from the materials available
on record that the allegations supported by the available
material, would indicate that the allegations against both
these petitioners are not with regard to possession of
incriminating literature, but of attending training
programmes and possessing firearm to carry out the
targeted killing of a youth of another community to flare up
communal hatred and to damage the delicate fabric of the
society. ..."
16. The learned trial court has held inter alia that
"The materials as brought out during the
course of investigation against both the accused
persons certainly make the allegations against them
appear to be prima-facie true. The moment this
Court arrives at such a conclusion, the rigours of
Section 43B (5) of the UA(P) Act, 1967 along with
its strict interpretation by the Hon'ble Supreme
Court in Watali's case which mandates rejection of
any such petition kicks in."
Submissions on behalf of the Appellants
17. Before this Court, learned counsel for the appellants
has assailed the impugned judgment. It is submitted that there is
nothing on the record which can even prima facie attract
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
allegations of conspiracy by the appellants. It is their common
contention that the allegation of conspiracy under Section 120B
would not get attracted.
18. Learned counsel has submitted that the appellants are
not named in the FIR. The name of Yaqub Khan (A-27) transpired
during the course of investigation of Baruraj P.S. Case No. 32 of
2023 dated 05.02.2023 under Section 120B, 121, 121A, 153A,
153B IPC and Sections 10 and 13 of the UA(P) Act. The said
Yaqub Khan was apprehended on 19.07.2023. On the basis of the
confessional statement of Yaqub Khan (A-27), Shahid Reza (A-28)
had been brought within the purview of this case and he was
arrested on 06.08.2023. Learned counsel for both the appellants
have submitted that the appellants were not members of the PFI
and they were not concerned with the activities of the said
organization, however, it is one of their submissions that the PFI
was a registered organization under the Societies Registration Act,
1860 which promote inter alia national integration and social
harmony. The PFI has been banned for five years by the Home
Ministry, Government of India vide an extraordinary gazette
notification vide CG-DD-e-2809 2022-23917 Part-II.
19. It is their contention that the alleged seizure list are
highly suspicious, doubtful concocted, manufacture and
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
afterthought. The offences punishable under Sections 121, 121A,
153A, 153B IPC would not be attracted against the appellants and
the Sections of UA(P) Act, 1967 cannot be levelled retrospectively
against the appellants. Learned counsel for the appellants has
submitted that post ban of the 'PFI' if the appellants were
participating in the activities of the PFI, they may only be held
liable for the offence punishable under Chapter (III) of the UA(P)
Act. Chapter IV or Chapter VI would not be attracted because
there is no allegation of involvement in activities of terrorist
organization or a terrorist act. Referring to Section 10, 13 and 18
of the UA(P) Act, 1967 learned counsel submits that the
allegations against the appellant Yaqub Khan would not come
within the meaning of these provisions. The activities are not
unlawful activities within the meaning of Section 2(O) of the UAP
Act.
20. Learned counsel for the appellant Shahid Reza (A-38)
submits that his house was searched on 05.08.2023 and some arms
and ammunitions are said to have been seized from his house. The
name of this appellant transpired after 13 months, no money has
been found from his house and he happens to be a student of
Bachelor of Arts.
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
21. It is their contention that the Hon'ble Supreme Court
has been pleased to grant bail to two accused namely Jalaluddin
(A-2) and Athar Parwez (A-1) hence they would also deserve the
privilege of bail during pendency of the appeal. It is informed that
out of 160-170 witnesses, which NIA intends to examine, presently
cross-examination of PW-2 is going on, hence the trial is not likely
to be concluded in near future.
Submissions on behalf of the NIA
22. The prayer for bail of this appellant has been opposed
by Dr. K.N. Singh, learned ASG representing the NIA. It is
submitted that the case of these two appellants are that of
indulging in unlawful activities, terrorising a particular community
in the society in the name of religion by use of firearm and other
lethal weapons. Evidences have been collected by the NIA in this
regard. In course of search in the house of the appellant Shahid
Reza on the basis of the disclosure statement of the Yaqub Khan
(A-27), several arms and ammunitions have been found. Those
arms and ammunitions are the material exhibits and there are
sufficient materials which would prove more than prima-facie that
if those evidences are believed, these appellants would be held
liable for commission of the offence for which they have been
charged.
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
23. Learned ASG has taken this Court through the various
paragraphs of the charge-sheet to demonstrate that in this case
there are digital evidences which are duly supported by the
recoveries of firearms showing that the appellants were indulged in
hatching of criminal conspiracy and abetting waging of war
against the Government of India. For this purpose, they were
collecting men, arms and ammunitions. They were promoting
enmity between different groups on the ground of religion doing
acts prejudicial for maintaining peace and harmony. It is submitted
that the appellants are prima-facie guilty for imputation, assertions
which are prejudicial to national integration. Section 10 of the
UA(P) Act and Section 10 and 13 of the UA(P) Act are attracted
for being a member of unlawful association and for carrying
unlawful assembly. Section 17 of the UA(P) Act is attracted for
raising funds for terrorist acts. Section 18 of UA(P) Act gets
attracted for conspiracy by advocating/abetting, inciting directly or
knowingly to facilitate the commission of a terrorist act or any act
preparatory to the commission of a terrorist act. Section 18 of
UA(P) Act shall be attracted for organizing training camps. Section
18B of the UA(P) Act for recruiting the PFI cadres and Section 20
of UA(P) Act for being a member of the terrorist gang. Sanction
for prosecution under Section 196 CrPC and Section 45(1) of
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
UA(P) 1967 in respect of the accused persons Yaqub Khan and
Shahid Reza has been accorded by the Ministry of Home Affairs,
Government of India and sanction of prosecution under Section 39
of the Arms Act has also been accorded by the District Magistrate,
Patna, Bihar. It is submitted that in presence of the materials
available on the record, the rigours of Section 43D(5) of the UA(P)
Act shall apply and the learned trial court has not committed any
error in rejecting the prayer of appellants for bail.
24. As regards the order of the Hon'ble Supreme Court in
the case of Md. Jalaluddin and Athar Parwez, it is submitted that
those two appellants have been granted bail by Hon'ble Supreme
Court after noticing that the allegation was of being member of the
PFI during the pre-ban period. Paragraph '30' and '31' of the order
passed in case of Athar Parwez have been placed before this Court
to submit that the Hon'ble Supreme Court took a view that the acts
and omissions alleged against the appellant in the said case would
bring him within the ambit of UA(P) Act, 1967. The case of these
appellants are, however, clearly distinguishable.
25. It is pointed out that in both the orders, the Hon'ble
Supreme Court has clarified that the observations made in those
orders are tentative in nature. Hon'ble Supreme Court has in
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
paragraph '36' of its order in case of Athar Parwez clarified in the
following terms:-
"... 36. It is clarified here that the observations made
hereinafter are tentative in nature with reference to the prayer
made in the present appeal confining it to the case of the appellant.
It shall have no bearing on the trial or on the case of the accused"
It is submitted that each case has to be considered on its own facts
and the materials which are available on the record. In the present
case, the appellants cannot legally contend that their case would be
standing identical with that of Md. Jalaludding and Athar Parwez."
Consideration
26. We have heard learned counsel for the parties and
perused the materials which have been placed before us for a
prima-facie view at this stage for purpose of grant of bail to the
appellnats.
27. We have noticed that even as these two appellants are
not named in the first information report lodged on 12.07.2022,
their names surfaced in course of investigation of the case by the
NIA. During investigation, the NIA not only gathered materials
showing that Md. Yaqub Khan (A-27) and Shahid Reza (A-38) are
associated with each other, they are also involved in procurement
of lethal weapons to execute targeted attacks to flare up the
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
communal tension. They remained active in their pursuit to arrange
the weapons post-ban period of the PFI. The gist of the seized
document "India 2047 towards Rule of Islam in India,
International Document: Not for Circulation" brought out the
criminal conspiracy hatched by the PFI. It also revealed that the
PFI allured Muslim youths to join the organisation by sharing
views of atrocities committed against the Muslims. The digital
evidence which were found from the mobile phone of Md. Yaqub
Khan (A-27) in form of the video posted on 31.01.2023 would
show that he had made an appeal to support reconstruction of
Babri Masjid at the place where Ram Mandir was being
constructed. When he was trolled on social media on this post, he
decided to attack a Hindu boy for his comments on social media.
A-27 arranged a firearm and amunition to eliminate him by
wearing saffron clothes and to flare up communal hatred. A-27
was acting at the behest of Md. Reyaz Moarif (A-4). Reyaz Moarif
had moved this Court earlier for grant of bail in Cr. Appeal (DB)
No. 42 of 2024. This Court rejected his prayer for bail and refused
to interfere with the order of the learned trial court rejecting his
prayer for bail. The order dated 14.05.2024 passed by this Court
Hon'ble Court in Cr. Appeal (DB) No. 42 of 2024 has been placed
before this Court. It is this Reyaz Moarif (A-4) on whose instance
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
Md. Yaqub Khan @ Usman @ Sultan (A-27) along with Md. Belal
@ Irshad (A-30) and other PFI members were indulged in the
unlawful activities of the PFI.
28. There is another aspect which has been revealed
during investigation by the NIA. It has come in the chargesheet
filed against the appellants what the co-accused Md. Belal @
Irshad (A-30) had received Rs. 3,50,000/- from his associate Md.
Sajjad Alam, Resident of Kuawan, P.S. Mehsi, District-East
Champaran, Bihar. Md. Sajjad Alam is a close associate of FIR
named accused persons. In July 2022, Md. Sajjad had gone to
Dubai, United Arab Emirates and is based there till date. The flow
of funds was also increased in the Bandhan Bank Account of Md.
Belal (A-30) from the Canara Bank Account of Md. Sajjad Alam.
29. The chargesheet reveals that on the disclosure of
Md. Yaqub Khan, NIA recovered and seized one country-made
pistol, two rounds amunition, one air pistol, one sword and two
knives from the house of Shahid Raza (A-38) who is resident of
Chakia, District-East Champaran, Bihar. These seized articles were
handed over to him by accused Md. Yaqub @ Sultan @ Usman to
keep them in safe custody. This was arranged from Abid (A-29)
with assistance of his associate Md. Tanveer @ Md. Tanveer
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
Barkati (A-28) for targetting killing of a Hindu youth to flare up
the communal tension.
30. So far as the material collected against these
appellants are concerned, in paragraphs '17.49' to 17.51' of the
chargesheet it is stated that during examination, witnesses stated
about the association of Md. Yaqub Khan (A-27) with the other
accused persons, the CDR connectivity with co-accused persons in
this criminal conspiracy has been shown. Referring to the evidence
against Md. Yaqub Khan (A-27), learned ASG has shown that the
disclosure memo of Md. Yaqub Khan (A-27) dated 04.08.2023
under Section 27 of the Indian Evidence Act and recovery memo
dated 01.08.2023 of social media accounts in respect of A-27 will
prove that he is a member of PFI and he used different social
medical to propagate the ideology of PFI even after the PFI was
banned and was declared an unlawful association. The disclosure
memo of Md. Yaqub Khan (A-27) dated 04.08.2023 pointing out
memo dated 05.08.2023 and 07.08.2023 will prove that co-accused
A-27 along with other co-accused conspired for the criminal
activities of the PFI and organised/undergone training of PFI at
different locations in a clandestial manner. Search and seizure-
cum-recovery memo dated 05.08.2023 related to residential
premises of Sahid Raza (A-38) will prove recovery under Section
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
27 of the Indian Evidence Act of one country-made pistol (katta)
with two rounds ammunition, one air gun, one sword and two
knives from the house of Sahid Raza (A-38) on the disclosure of
Md. Yaqub Khan (A-27).
31. Learned ASG has also shown to this Court that
analysis of extracted data of mobile of the co-accused Md. Yaqub
Khan (A-27) and Sahid Raza (A-38), account statement of
Bandhan Bank Account of Md. Belal @ Irshad will prove his
transactions with other PFI members it will also prove that he
provided this to accused Md. Yaqub Khan (A-27) for further
criminal activities of the PFI.
32. We have noticed from the list of documents which
has description of the documents and the list of materials in
Annexure 'C' to the chargesheet that the NIA had placed before the
learned trial court the various documents and material exhibits to
prove the guilt of the appellants.
33. We find from the kind of materials available on the
record that the observations of the learned trial court in the
impugned order that the materials available on the record
supported the allegations against both the appellants are correct.
So far as the rigours of Section 43D (5) are concerned, we
reproduce Section 43D (5) as under:-
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
"43D (5). Notwithstanding anything contained
in the Code, no person accused of an offence
punishable under Chapters IV and VI of this Act
shall, if in custody, be released on bail or on his
own bond unless the Public Prosecutor has been
given an opportunity of being heard on the
application for such release:
Provided that such accused person shall not be
released on bail or on his own bond if the Court,
on a perusal of the case diary or the report made
under section 173 of the Code is of the opinion
that there are reasonable grounds for believing
that the accusation against such person is prima
facie true."
34. The appellants have been chargesheeted for the
offences committed under Sections 10, 13, 17, 18, 18A, 18B, 20 of
UA(P) Act. The appellants have also been chargesheeted under
various Sections of IPC and the Arms Act as stated hereinabove.
35. So far as the submission of the learned counsel for
the appellants that from the materials collected by the NIA, the
case of the appellants would not be covered under any of the
provisions under Chapter IV of the UA(P) Act, 1967 is concerned,
this Court is unable to agree with the said submission. Chapter IV
deals with the punishment for terrorist activities. The definition
Section 2 Clause (k) defines the words "Terrorist Act" which is the
meaning assigned to it in Section 15 and the expressions
"Terrorism and Terrorist" shall be considered accordingly.
36. Section 15 says (1) Whoever does any act with intent to
threaten or likely to threaten the unity, integrity, security, economic
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
security or sovereignty of India or 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-- (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) .... (iii) .... or (iiia) ....or (iv) ....
37. It is evident on reading of Section 15(1)of the UA(P)
Act, 1967 that if the Act is with intent to threaten or likely to threaten
the unity and integrity and security or sovereignty of India or it is
likely to strike terror in the people or any section of the people in
India by use of the kind of weapons mentioned in Clause (a) of
subsection (1) of Section 15, it would be covered under Section 15
and will come within the meaning of the word 'terrorist'. In the
present case, we have noticed from the materials on the record that
these two appellants not only procured and preserved the firearms
and other lethal weapons like sword, the procurement and
preservation of the weapons were preceded by an intention to strike
terror by killing one boy who had trolled A-27 on his comment
against construction of Ram Mandir.
38. This Court finds that there are materials in possession of
NIA which have been placed before the learned trial court, showing that
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
even after the ban was imposed against the PFI, these appellants were
taking part in the activities of the said organization and they were
involved in inciting the commissions of unlawful activity. The
punishment prescribed for such offences under Section 10 and 13 of the
UA(P) Act are severe and under Section 10(b) (i) and (ii), the
punishment may extend to imprisonment for life.
39. This Court would agree with the submissions of learned
ASG that so far as the case of Md. Jalaluddin Khan @ Md. Jalaluddin
and Athar Parvez who have been granted bail by the Hon'ble Supreme
Court are concerned, their cases would stand on a completely different
footing inasmuch as it would appear from the materials which were
available on the record in the said two cases that there was no material
showing that they were involved in procurement of arms with an intent
to strike terror in the society.
40. This Court has earlier rejected the prayer of the appellant
Md. Irshad Alam in Criminal Appeal (DB) No. 130 of 2024 and the
appellant Md. Reyaz Moarif in Criminal Appeal (DB) No. 42 of 2024.
The case of these two appellants would not stand on a better footing.
41. Paragraph '23' of the judgment in case of Md. Jalaluddin
and paragraph '36' of the judgment in case of Athar Parvez rendered by
the Hon'ble Supreme Court would make it clear that the observations in
the order are tentative in nature with reference to the prayer made in the
said appeal and the same has been confined to the case of the appellant
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
of the said case with a clear note that it shall have no bearing on the trial
or in the case of the co-accused.
42. The appellants are in custody for less than two years for
the present. They have not undergone incarceration for a substantial
period, hence it cannot be said that their continued detention would be
in violation of their fundamental right under Part III of the Constitution
of India. In the case of Union of India vs. K.A. Najeeb reported in
(2021) 3 SCC 713, the Hon'ble Supreme Court declined to interfere
with the order of the High Court granting bail to the accused under
UA(P) Act, 1967. In the said case, the accused was in jail for over four
years and the accused who had earlier faced trial were convicted but
sentenced in between two to eight years. Thus, the accused had served
substantive part of the sentenced attached to the offence of which he
was charged. In the case of Vernon vs. State of Maharashtra and Anr.
reported in (2023) 15 SCC 56 and Sk. Javed Iqbal vs. State of U.P.
reported in (2024) 8 SCC 293, their Lordships of the Hon'ble Supreme
Court exercised their power as a constitutional court when it was found
that the accused were in custody for more than five years to nine years
during trial but the trial was not likely to be concluded in near future.
However, at this stage, this view cannot be taken in case of these
appellants. This argument shall remain open to the appellants for
consideration at appropriate stage.
43. Considering the complete materials which have been
brought to the notice of this Court and the law on the subject in the
Patna High Court CR. APP (DB) No.252 of 2024 dt.18-04-2025
UA(P) Act, as discussed above, we find no infirmity in the
impugned orders of the learned trial court. These two appeals are
therefore dismissed, at this stage.
44. It is made clear that the observations made
hereinabove are tentative in nature and no part of it shall cause
prejudice to the case of the either parties and it will have no bearing
on the trial.
(Rajeev Ranjan Prasad, J)
(S. B. Pd. Singh, J)
Rishi/-
AFR/NAFR
CAV DATE 11.04.2025
Uploading Date 18.04.2025
Transmission Date 18.04.2025
