Nasir Safi Mir vs State, NCT of Delhi

Ravndra Bhat, J.—This revision is directed against an order on charge dated 31-10-2006, by which the the trial court inter alia, charged the

Petitioner for commission of offences under Sections 3/5 Arms Act and 4/5 Explosives Substance Amendment Act 2001 and Sections 17/18 and

23 Unlawful Activities Prevention Act.

The prosecution version was that on 3.2.2006, the petitioner was apprehended on a information through a central intelligence agency while he

was travelling in a black colour car bearing No. DL3CAA-2289 from near Narula Restaurant, Defence Colony Flyover and stopped in front of D-

146 Defence Colony. The information of the prosecution was that the petitioner is Dubai based conduit for banned terrorist outfit Hijbul

Mujahideen and was involved in a number of acts of providing funds through ""Hawala"" Channels and explosives through terrorist organisations and

he was to deliver a consignment of explosives and Hawala money. The prosecution alleged that the petitioner got down from the car, when he

reached the spot and walked towards South Delhi Public School, B Block, Defence Colony. At that point of time he was holding a black coloured

bag in his right hand. He was identified by an informer.

The petitioner waited for someone; after 15 minutes of waiting no one came there he turned back to his car. Then, he was apprehended and his

search led to the recovery of two Kg of RDX, one electronic timer, and a detonator; one pistol make star with magazine was also recovered from

the pocket of the bag. The magazine had six live cartridges. A cash amount of Rs. 10 lakh was recovered from the bag. The petitioner allegedly

made a disclosure statement in which he revealed that he was working for Hizbul Muzahideen and for Mir Waiz Ummar Farooq, Chief of Hurriyat

Conference. He stated that the consignment was collected by him from one Latif on the direction of Sayed Salahuddin Chief of Hizbul Muzahideen

terrorist outfit; it was to be delivered to one Zahoor of Hizbul Mujahideen from the place where he was apprehended. He allegedly also disclosed

that he collected a sum of Rs. 55 lakhs from a Hawala Operator and out of that Rs. 10 lakh was to be delivered to Zahoor alongwith recovered

arms, explosive and ammunition, while 40 lakhs was to be sent to Jammu & Kashmir to be distributed to various outfits.

It was alleged that a sum of Rs. 45 lakhs was kept in a blue air bag; that too was recovered from the front seat of the car. On the basis of these

materials, the petitioner was booked for offences u/s 121/121A/122/123/120B read with Section 4 & 5 Explosive Substance Act and 25 Arms

Act and also u/s 17, 18, 20 and 23 Unlawful Activities (prevention) Act. Sanctions were obtained to prosecute the accused for the offences under

the Indian Penal Code, Explosive Substances Act, Unlawful Activities (Prevention) Act and under the Arms Act.

After investigation, a charge sheet was filed in court, on 2 May, 2006. After hearing the accused, the trial court, i.e., the Additional Sessions

Judge, framed charges u/s 25, Arms Act, Sections 4 and 5 Explosive Substances (Amendment) Act and Sections 17/23 and 18, Unlawful

Activities (Prevention) Act. The court did not, however frame charges under provisions of the Indian Penal Code.

Mr. Ram Jethmalani, learned senior counsel contended that since the trial Court formed the opinion that elements of conspiracy, u/s 120B IPC

were absent, it was not open for it to frame charges u/s 17 and 18 of the Act. Counsel for the petitioner submitted that the offence u/s 17, i.e.

raising money"" for the unlawful purposes was not made out. In that context, it was submitted that the expression ""raising money"" merely implies

obtaining or procuring it, by donation/subscription, borrowing it, expropriation (or use of State power) or through extortion. Even if it were

assumed that the sum of Rs. 55 lakhs was recovered, that by itself could not lead to grave suspicion that the petitioner had raised that money for

the purposes mentioned in Section 17, to justify a charge. Learned Counsel relied upon the Black''s Law Dictionary, page 1132-33 and Advance

Law Lexicon, 3rd Edition (2005), page 3928, in support of his submission regarding the expression ""raised money"".

It was next contended that a charge u/s 18 i.e. act preparatory to a terrorist act could be framed only subject to sanction. It was submitted that

there was no valid sanction within the meaning of the expression and that reliance placed upon the order dated 01.05.06 is mis-placed. Shri

Jethmalani submitted that there is nothing on the face of the so-called sanction order indicative of proper application of mind and adequacy of

materials, in support of the sanction. He relied upon the judgment of the Privy Council in AIR 1948 82 (Privy Council) to say that a sanction order

must, facially indicate brief facts of the case and that if it does not do so, it would be invalid.

It was contended by counsel that there was also no evidence in support of the charge u/s 18, which presupposed some objective facts pointing

to the accused acting so as to ""conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of,

a terrorist act or any act preparatory to the commission of a terrorist act...."" The learned Counsel submitted that mere recovery of some amounts,

howsoever substantive would not be indicative of any conspiracy, or attempt to commit, advocacy, abetment, advice, incitement, or intentional

facilitation of a terrorist act, as defined u/s 15; there had to be something more than the mere recovery of amounts.

It was further contended that the materials on record show that there were serious discrepancies about the time of the arrest. Allegedly, the

rukka was sent on 03.02.06 at 8:30 PM, whereas the time of recording of the FIR was 8:50 PM. Counsel contended that the seizure of materials,

from the petitioner allegedly took place on 03.02.06 at 7:10 PM. These inconsistencies were fatal to the genuineness of the prosecution version,

and pointed out to grave and serious suspicions about the truth of the allegations. In these circumstances, the Court should not have proceeded to

frame the charges, since on the basis of the materials, two views were reasonably possible. Reliance was placed upon Dilawar Balu Kurane Vs.

State of Maharashtra, for the proposition that in such case the accused has to get the benefit of doubt.

Learned Counsel for the State opposed the petition and submitted that the order on charge does not require interference. It was contended

that the petitioner was apprehended and a huge quantity of dangerous explosives were recovered from him. Also Rs. 10 lakhs were recovered at

the same time and soon thereafter another Rs. 45 lakhs was recovered, from the vehicle. The money was all unaccounted. Even if the petitioner''s

allegation that disclosure statement were not to be taken into account, were accepted nevertheless, the cumulative recovery of a large quantity of

deadly explosives and a huge sum of unaccounted money reasonably led to grave suspicion of the petitioner''s act preparatory to a terrorist act and

also of his having raised amounts for the purpose of committing a terrorist act. Under these circumstances, the charges u/s 17 and 18 were

correctly framed. In view of the recovery of explosives, the charge u/s 23 of the Unlawful Activities (Prevention) Act had to be framed.

Learned Counsel submitted that as far as the question of sanction is concerned, the judgment of the Supreme Court in State of Maharashtra v.

Som Nath Thapa 1996 SCC (Crl.) 669 concludes the issue. The sanction order specifically mentions about application of mind to the materials

placed before the sanctioning authority. Therefore, the Court cannot in the absence of compelling reasons go behind that order and see whether the

sanction order was vitiated.

The offence of ""terrorist activities"" finds mention in Section 2; after several amendments, a new Chapter IV was added to the Unlawful

Activities (Prevention) Act, by Amendment Act of 29, which was brought into force with effect from 21st September, 2004. Section 15, defines

terrorist activities, and Sections 17, 18 and 23 provide for specific offences. The material provisions are extracted below:

PUNISHMENT FOR TERRORIST ACTIVITIES

Terrorist Act. - Whoever, with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any

section of the people in India or in any foreign country, does any act by using bombs, dynamite or other explosive substances or inflammable

substances or firearms or other lethal weapons or poisons or noxious gases or other chemicals or by any other substances (whether biological or

otherwise) of a hazardous nature, in such a manner as to cause, or likely to cause, death of, or injuries to any person or persons or loss of, or

damage to, or destruction of, property or disruption of any supplies or services essential to the life of the community in India or in any foreign

country or causes damage or destruction of any property or equipment 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 detains any person and threatens to kill or injure

such person in order to compel the Government in India or the Government of a foreign country or any other person to do or abstain from doing

any act, commits a terrorist act.

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Punishment for raising fund for terrorist act.-Whoever raises fund for the purpose of committing 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.

Punishment for conspiracy, etc.-Whoever conspires or attempts to commit, or advocates, abets, advises or incites 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.

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Enhanced penalties.-(1) If any person with intent to aid any terrorist contravenes any provision of, or any rule made under the Explosives Act,

1884 (4 of 1884) or the Explosive Substances Act, 1908 (6 of 1908) or the Inflammable Substances Act, 1952 (20 of 1952) or the Arms Act,

1959 (54 of 1959), or is in unauthorised possession of any bomb, dynamite or hazardous explosive substance or other lethal weapon or substance

capable of mass destruction or biological or chemical substance of warfare, he shall, notwithstanding anything contained in any of the aforesaid

Acts or the rules made thereunder, 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.

(2) Any person who, with intent to aid any terrorist, attempts to contravene or abets, or does any act preparatory to contravention of any provision

of any law or rule specified in Sub-section (1), shall be deemed to have contravened that provision under Sub-section (1) and the provisions of

that Sub-section in relation to such person, have effect subject to the modification that the reference to ""imprisonment for life"" therein shall be

construed as a reference to ""imprisonment for ten years.

Apart from the above, no other point was urged in support of the petition. The records of the trial court were called for. I have carefully

considered them.

The first question is regarding the charge u/s 17. The controlling expression is ""raises fund"" and the object clause is ""purpose of commission of

a terrorist act"". There can be no dispute with the argument that the sources of funds may be four fold; some lawful, and some unlawful. The

question here is not the source, but the suspicion about the possession. If the funds alone had been recovered, the argument on behalf of the

petitioner would have been attractive. However, that is not the case; apart from the substantial amount of Rs. 55 lakh, recovered from the

petitioner, a Dubai national, he was also found in possession of a dangerous explosive, i.e. two kilograms of RDX. Now, the recovery of these

two, i.e. the sum of Rs. 55 lakhs, and the explosive, in my opinion, was sufficient for the court to have entertained a grave suspicion about the use

of both. In other words, the cumulative, or total effect of the recoveries was seen by the court, for framing the charge u/s 17, as well as Section 18.

I find no infirmity with that approach.

As regards the second submission, i.e. that there was no other material to connect the petitioner with any unlawful or terrorist act, or

organization, and therefore in the absence of any overt act toward that end, the charge u/s 18 could not be framed, the answer, to my mind, is that

the provision is not merely indicative of one or few positive acts, but a series of acts, over a period of time. This necessarily would imply a wider

canvas in time, and a time continuum. This view is strengthened by use of such expressions as ""abet""; ""conspire"" ""advocates, abets, advises or

incites or knowingly facilitates"" any ""act preparatory to a terrorist act"". The intention here is to prevent a potential abettor, or facilitator, or conduit,

aiding the preparation of a terrorist act. The recovery of the huge quantity of RDX is sufficient for a charge for that offence. I am not persuaded

with the submission that something overt or positive, on the part of the accused is necessary for the charge; to insist on such a condition would be

to import limitations which possibly were not contemplated. All the actions covered covert deeds performed, or planned in stealth, and highlighted

by isolated actions, or circumstances. If at the stage of charge, the limited interpretation advanced were to be accepted, possibly the court would

be defeating the legislative intent.

The next question is whether the sanction granted, and produced in support of the case was valid, as it did not contain reasons to support

application of mind. Gokulchand''s case (supra) was cited for the purpose. An identical argument was apparently raised, in Mohammed Afzal v.

State of Delhi 2005 (11) SCC 600 when, after considering the ratio in Gokulchand, the Supreme Court held as follows:

Ultimately, the test to be applied is whether relevant material that formed the basis of allegations Constituting the offence was placed before the

sanctioning authority and the same was perused before granting sanction. We are of the view that this test has been amply satisfied in the instant

case. The sanction orders on their face indicate that all relevant material viz., FIR, disclosure statements, recovery memos, draft charge sheet and

other material on record was placed before the sanctioning authority. The fact that the sanctioning authority perused all this material is also

discernible from the recital in the sanction orders. The sanction orders make it clear that the sanctioning authority had reached the satisfaction that

prima facie the accused committed or conspired to commit the offences mentioned therein. The elaborate narration of facts culled out from the

record placed before the sanctioning authority and the discussion as to the applicability of each and every Section of the penal provision quoted

therein is not an imperative requirement. A pedantic repetition from what is stated in the FIR or the draft charge-sheet or other documents is not

what is called for in order to judge whether there was due application of mind. It must be noted that the grant of sanction is an executive act and

the validity thereof cannot be tested in the light of principles applied to the quasi-judicial orders vide the decisions in State of Bihar and Another

Vs. P.P. Sharma, IAS and Another, and Superintendent of Police (C.B.I) Vs. Deepak Chowdhary and others,

The last point urged was that the time of the rukka, the FIR and the arrest were so discrepant, as to falsify and discredit the entire story and

version of the prosecution; the court could never have framed the charges. It is far too well settled that the court does not embark upon a

meticulous and microscopic foray into the evidence and materials relied upon the prosecution, at the charge framing stage; it only sees the broad

prima facie aspects or features. Thus, some discrepancies, cannot completely destroy the version, so as to preclude the court from framing

charges.

For the above reasons, I find no ground to interfere with the order of the trial court. The revision petition is accordingly dismissed.