Syed Tanzeem Ahmed vs State of Karnataka

Mohan M. Shantana Goudar, J.—This appeal is filed under Section 21(4) of National Investigation Agency Act, 2008 praying for enlarging the appellant on bail in Crime No. 284/2012 of Basaveshwaranagara Police Station, Bangalore, which is later renumbered by National Investigation Agency as R.C. No. 4/2012/NIA/HYD and now pending in Special C.C. No. 52/2013, on the file of the XLIX Additional City Civil and Sessions Court and Special Judge for NIA Cases, Bangalore. Brief facts leading to this appeal are as under:

The Assistant Commissioner of Police, Special Enquiries Cell, CCB, Bangalore City, Bangalore, on the basis of credible information received on 26.08.2012 that some of the persons being members of Lashkar-e-Toiba (L-e-T) and HUJI have hatched a conspiracy to indulge in terrorist activities like target killings of important personalities of Hindu Community in Bangalore and Hubli and thereby to disturb communal harmony and that they are possessing Fire Arms and Ammunitions illegally to carry out their desired object and wage war against Government of India, surveillance was laid. A team of police officers was formed. As per credible information, Mr. Pratap Simha, a columnist of "Kannada Prabha" daily news paper was the target. The police had information that members of L-e-T are moving on the motor cycle bearing registration No. KA-27-E-1035.

On 29.08.2012, two persons came to Basaveshwarnagar, Bangalore on the said motor cycle and stopped near 3rd main, 6th cross, Maruthi nagar. On seeing the police the two persons tried to escape. The pillion rider was overpowered and a pistol bearing No. 71117 "PETRO AND BERATA" made in Italy was recovered. Live rounds of 7.65 mm and a magazine with two rounds of 7.65 mm were recovered. A pen drive was also recovered. Based on those, report was made and Crime No. 384/2012 was registered in Basaveshwaranagara Police Station on 29.08.2012 for the offences punishable under Sections 25 and 3 of Indian Arms Act, 1969 and under Sections 153-A, 121-A, 120-B, 121, 122, 379, 153-B, 307 of IPC and under Sections 10, 12, 13, 15, 16, 18 and 20 of Unlawful Activities (Prevention) Act, 1967.

The appellant (accused No. 25) was arrested on 4.11.2012 and he was produced before the jurisdictional Court on 5.11.2012; the police after investigation, have laid the charge-sheet against certain accused including the appellant herein; nine of the accused are shown as absconded accused.

Investigation records reveal that accused No. 25-appellant herein was a member of Popular Front of India (PFI) earlier and actively participated in its activities; the appellant was entrusted with the task of identifying and locating the movements of targets; such work was entrusted to the appellant by accused No. 1; accused Nos. 1 and 2 were caught red-handed with incriminating material on 29.8.2012; on the instruction of accused No. 1, appellant herein has located and surveyed the movements of Prathap Simha for his killing; based on the voluntary statement of the appellant herein, one HTC mobile with two SIM cards were seized which contained incriminating jihadi material; the police with the help of scientific investigation retrieved provocative jehadi literature from his email address.

Having regard to the gravity and seriousness of the case and considering the national and international ramifications, the Government of India, transferred the case to National Investigation Agency (NLA) as per the orders of Government of India, dated 16.11.2012. Thereafter, the investigation is further conducted by NLA and ultimately charge sheet is filed.

Supplementary charge-sheet came to be filed against the appellant herein (accused No. 25) on 2.5.2013. Now the trial is going on in the designated Court as mentioned supra.

The Court below has rejected the application filed by the appellant herein for bail on 1.8.2013. The appellant has approached this Court by filing this appeal under Section 21(4) of National Investigation Agency Act, seeking the order of bail in his favour.

Sri. Hasmath Pasha, learned advocate appearing on behalf of the appellant taking us through the relevant material on record, submits that appellant is young aged about 24 years; absolutely no overt acts are found against him; there is nothing on record to show that he is a member of any of the banned organisation; charge-sheet does not disclose the link between the appellant and the offence alleged; though he was apprehended on 2.11.2012, nothing incriminating material is seized from him till 17.11.2012 on which date, a mobile phone is said to have been recovered; merely because the mobile phone/SIM cards contained photographs of Mr. Modi, Prathap Simha and another person and merely because certain religious literature was stored in the SLM cards/email addresses, it is not open for the respondent to label the appellant as the one who participated in the unlawful activities; alleged activities of the appellant do not fall under ''unlawful activities'' as defined under the provisions of Unlawful Activities (Prevention) Act, 1967. He further submits that merely on assumption and only to harass him, the appellant is falsely implicated. He draws the attention of the Court that only four witnesses are examined before the Court below; the examination-in-chief of fourth witness is going on though the trial has commended two months prior to this day. The Special Court is not taking up the trial of the case on day-to-day basis as required under the provisions of Section 19 of National Investigating Agency Act, 2008. According to him, trial may drag on for 3 to 4 years and consequently, the appellant being innocent would be put to greater hardship.

Sri. C.H. Jadhav, learned advocate appearing on behalf of the respondent argued opposing the appeal/bail application by contending that material on record prima facie reveal the active involvement of the appellant in the crime in question; appellant was entrusted with the duty of having surveillance of Prathap Simha who is columnist and who used to write in columns of Kannada Prabha daily newspaper; heavily criticizing terrorist activities by banned Muslim Organizations; since the trial is going on and as nine accused are absconding, the appellant also may abscond if he is released on bail. He further submits that material collected amply goes to show the involvement of the appellant in the crime.

After the arrest of accused No. 25-appellant herein, his mobile phones were recovered based on his voluntary statement and he was found using SIM card Nos. 9738883248, 9738061629 and 8553356847 for contacting other accused. It is relevant to note that all the three SIMs were taken in the names of other persons and not in the name of the appellant. It is further pertinent to note that and other arrested accused have also taken the SIM cards similarly in different persons'' names. SIM cards and mobile phone were subjected to analysis by the concerned laboratory (CFSL, Hyderabad). It is reported that photographs of targeted persons were found in the mobile phone. The accused was found to be in touch with the other accused. He was entrusted with the responsibility of having surveillance to watch the movements of Prathap Simha who generally works in Indian Express Building Bangalore and that the appellant used to keep an eye on the movements of the target by following him from the place of his work, i.e., Indian Express to Basaveswaranagar. SIM Cards and memory cards contained incriminating materials and certain provocative and jihadi literatures were found from email ID sytanzeem @ gmail.com during his custody. Supplementary analysis report from the experts of CFSL who examined the SIM cards and memory cards, reveals number of photographs of Prathap Simha and Modi. Same photographs are also extracted from email ID Shahrukhkhanishero @ yahoo.com, which were shared among accused Nos. 1, 8 and 13.

Further, the CDR analysis and the link chart with reference to the geospatial analysis with the help of Google mapping establishes the movement of appellant near the office of the target on 9.8.2012 and further comparison with the tower location of the Pratap Simha''s movement on the particular day corroborate with the confession given by the accused during the time of his arrest.

We find that material collected during the investigation prima facie reveals the complicity of the appellant in the crime. Though there is no direct material to show that the appellant herein is a member of Lashke-re-Toiba (LET), the banned orgnisation, the material collected prima facie reveal the active participation of the appellant herein in the crime with accused Nos. 1 and 2 who are members of "LET" and who are caught redhanded.

Prima facie, it appears that appellant is working actively for banned organization i.e., "Lashker-e-Toiba". Therefore, the respondent may be justified in arguing that activities of the appellant are severe threat to the security of the country. According to the respondent, but for the timely action of the complainant, the untoward incident could have been occurred which could have shaken the city, which could have led to communal disharmony. Serious consequences would have followed.

The material on record prima facie reveals the unlawful activity of the appellant herein as defined under the provisions of Unlawful Activities (Prevention) Act, 1967. Since the trial is being proceeded with, we do not wish to comment anything further on merits of the matter. The material reveals that nine of the accused are absconding and the State feels that if the appellant herein is released on bail, he may also abscond and again participate in similar activities against the State along with other absconding accused. Hence, we decline to release the appellant on bail.

Accordingly appeal stands dismissed.

The trial Court is directed to make endeavour to decide Spl.C.C. No. 52/2013, on day-to-day basis.