Delhi High Court
Mohd Abdul Rehman vs State Nct Of Delhi on 23 December, 2024
Bench: Prathiba M. Singh, Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21st October, 2024
Date of Decision: 23rd December, 2024
+ CRL.A. 280/2023
MOHD ABDUL REHMAN .....Appellant
Through: Mr. Harsh Kumar, Advocate (M
6205536862).
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Ritesh Kumar Bahri, APP for the
State with Mr. Lalit Luthra and Ms.
Divya Yadav, Advocates (M-
9910645959).
Insp. Alok Kumar and SI Rahul
Khokher, Special Cell, Lodhi Colony.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
1. The present appeal filed by the Appellant-Mohd. Abdul Rehman under
Section 21(1) and (2) of the National Investigation Agency Act, 2008
(hereinafter, ‘NIA Act‘) seeks the following prayers:
“(i) Setting aside the Judgement dated 10.02.2023 and
order on conviction dated 14.02.2023 passed by the
Special NIA Court, Ld. ASJ-02, Patiala House Courts,
New Delhi in Sessions Case No. 9378/ 2016 – State vs
Mohd. Asif and Ors. in FIR No. 67/2015 P.S. Special Cell
originally under sections 18, 18B and 20 of the UAPA,
1967, New Delhi whereby convicted the Appellant under
Section 18 and 18B of the Unlawful Activities
(Prevention) Act, 1967 to undergo RI for a period ofSignature Not Verified
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Seven years and five months each Section 18 and 18B,
running concurrently with a fine of Rs. 25000/- each and
(ii)Pass any other order as this Hon’ble Court may deem
fit, just and proper in the present facts and circumstances
of the case;”
2. The appeal has been filed assailing the impugned judgment of
conviction dated 10th February, 2023 and order on sentence dated 14th
February, 2023 passed by Ld. ASJ-02, Patiala House Courts, New Delhi in
Sessions Case No. 9378/ 2016 arising out of FIR No. 67/2015 P.S. Special
Cell under Sections 18, 18B and 20 of the Unlawful Activities (Prevention)
Act, 1967 (hereinafter, ‘UAPA’), whereby the Appellant was convicted under
Section 18 and 18B of the UAPA and was sentenced to undergo rigorous
imprisonment for a period of seven years and five months for the offences
punishable under Section 18 and 18B of the UAPA, running concurrently with
a fine of Rs. 25000/- each in default of payment of fine to undergo simple
imprisonment for a period of three months.
BRIEF BACKGROUND
3. Brief facts which are necessary for the disposal of the present appeal
are as follows: –
i. It is alleged that the Special Cell had received specific intelligence
regarding a militant organization named Al-Qaida in Indian
Subcontinent (hereinafter ‘AQIS’) being active in Sambhal District of
Uttar Pradesh. On the basis of the aforesaid information, sources were
deployed to find out information regarding people from Sambhal
District who had visited foreign countries particularly Iran, Turkey and
Pakistan.
ii. On 14th December, 2015 at around 1:30 PM a specific intelligence was
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received by the Special Cell regarding the presence of one Mr. Mohd.
Asif (hereinafter ‘Co-Convict No.1’) at Welcome Bus Stand, near
Seelampur flyover, New Delhi. On the basis of the aforesaid
intelligence a raiding team was constituted. At about 3:30 PM one
person was seen coming with a black shoulder bag and upon
identification by the secret informer Co-Convict No.1 was apprehended
by the raiding team of the Special Cell.
iii. Co-Convict No.1 in his disclosure statements (Ex.PW 30/E to 30/G)
revealed that he had joined the terrorist organisation Al-Qaeda
(hereinafter ‘AQ’) and the group to which he belonged was called Al-
Qaeda in the Indian Subcontinent (AQIS).
iv. Co-Convict No.1 in his disclosure statements also revealed that on 23rd
June, 2013 he had left India for Pakistan illegally via Iran along with
one Mohd. Rehan and Mr. Mohd. Sharjeel Akhtar for getting arms
training.
v. During investigation, the travel details of Co-Convict No.1 were
collected from Minar Travels (India) Pvt. Ltd, Connaught Place, New
Delhi, (Ex. PW 6/H and Ex. PW 6/I) as per which, Co-Convict No.1,
Mr. Mohd Sharjeel Akhtar and Mr. Mohd Rehan had booked air tickets
(Ex. PW 6/E1 to E3) by Mahan Airlines for departure from Delhi to
Tehran on 23rd June, 2013 and arrival from Tehran to Delhi on 10th July,
2013. However, it is alleged that neither Co-Convict No.1 nor Mr.
Mohd Sharjeel Akhtar and Mr. Mohd Rehan returned to India on these
tickets.
vi. During investigation information regarding arrival of Co-Convict No.1
was sought from the Ministry of External Affairs. Vide reply dated 23rdSignature Not Verified
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February, 2016 (Ex.D-5 and Ex.PW- 56/G) it was informed by the
Ministry of External Affairs that Co-Convict No.1 had come to India
through Turkey, as he had submitted a false application before
Consulate General of India, Istanbul, Turkey on 26th August, 2014
stating that he had come to Istanbul, Turkey on a tour and lost his
passport. The Consulate General verified his citizenship and issued an
Emergency Certificate on 29th September, 2014 with remarks as
“Illegally living in Turkey” which facilitated his return to India.
vii. In the aforementioned disclosure statements Co-Convict No.1 also
revealed vital information regarding other members of AQIS operating
in India and on the basis of the information provided by him one Mr.
Zafar Masood @ Guddu (hereinafter ‘Co-Convict No.2’), Appellant
and Mr. Syed Anzar Shah were apprehended.
viii. Co-Convict No.2 in his disclosure statements (Ex.PW 33/D and Ex.PW
33 H to L) revealed that he had relations with various members of AQIS
and on their directions he had visited Pakistan in November-December
1999 and had also received arms training. He also revealed that one Mr.
Usman @ Asad in March 2001, had arranged for the stay of two
Pakistani militants namely Mr. Syed Mohd @ Hamja and Mr. Maqsood
Ahmed @ Ali in Delhi but they were apprehended by the police. Co-
Convict No.2 further revealed that he started living at various places in
Gujarat and during his stay in Gujarat, he obtained another passport
with fake identity in the name of Zafar Masood Shaikh S/o Shaikh
Masood Hasan. Upon verification during investigation, the said
passport (Ex. PW 45/B) was found to be forged.
ix. During investigation it was also revealed that Co-Convict No.2 was
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instructed by one Syed Akhtar @ Qasim to pay Rs. 1 lakh to Co-
Convict No.1 for purchasing air tickets from Delhi to Iran.
x. The Appellant in his disclosure statements (Ex.PW 18/H to 18M,
Ex.PW 18T to 18 U and Ex. PW 18/Z1) revealed that that in the year
1999, he had met one Jaish-e- Mohammad militant (hereinafter ‘JeM’)
Salim r/o Pakistan in Deoband, Uttar Pradesh, who was involved in
hijacking of IC-814 Indian Airlines flight. He further revealed that he
provided safe hideouts to militants belonging to terrorist organization
JeM, and the head of AQIS Mr. Sanaul Haq @ Maulana Asim Umar
had studied with him in Darul-uloom, Deoband.
xi. It is alleged that the Appellant was responsible for sending wanted
accused Mr. Mohd Umar @ Umar Hyderabadi, Mr. Abu Sufiyan and
Mr. Abdul Sami (hereinafter ‘Co-Convict No.3’) to Pakistan for
training through other wanted accused Mr. Syed Mohd Arshiyan, Dr.
Sabeel Ahmad and Mr. Shahid Faisal @ Yusuf.
xii. It is alleged that between 08th January, 2015 to 28th February, 2015 the
Appellant had visited Pakistan through Saudi Arabia. During
investigation a Notice dated 05th January, 2016 (Ex.PW 29/B) under
Section 91 Cr.P.C was issued to Emirates Airlines for seeking
information regarding the Appellant’s travel details. Vide reply dated
06th January, 2016 (Ex. PW 29/C) Emirates Airlines informed that the
Appellant had travelled from Karachi to Dammam via Dubai on 15/16
February, 2015. During investigation, passport of the Appellant was
seized but no arrival/departure visit stamps or visa of Pakistan were
found.
xiii. It is alleged that the Appellant during his visit to Pakistan met most
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wanted militants Mr. Zakiur Rehman Lakhwi, Chief of Lashker-e-
Taiba (hereinafter ‘LeT’), Mr. Hafiz Saeed Chief of Jamat-ud-Dawa
(hereinafter ‘JuD’) Kasim Bhai @ Sajid Mir who is wanted for being
involved in the 26/11 Mumbai attacks and wanted accused Faratullah
Gauri @ Chacha for planning to carry out more terrorist activities in
India.
xiv. It is alleged that in September 2015, the Appellant visited Bangalore
and met Co-Convict No.1 and they discussed about the planning and
objectives of AQIS and Co-Convict No.1 informed the Appellant that
he requires more youth for strengthening its base in India.
xv. During investigation in the year 2018 it was revealed that the Appellant
had procured a passport bearing no. F1233600 (Ex.PW 43/J2) in the
year 2004 with a fake name and identity. It is pertinent to note that the
Appellant has also been found to be involved in (i) FIR No. 21/2016
(Ex. PW 56/O) dated 25th January, 2016 at P.S. Bistupur East Singbhum
District Jamshedpur, Jharkhand and (ii) Case No.3 dated 25 th February
2016 of P.S. Special Task Force, Bhubaneshwar Odisha.
xvi. Pursuant to the aforesaid disclosure statements of the Appellant, Co-
Convict No. 3 was arrested. Co-Convict No.3 in his disclosure
statements (Ex.PW 20/E to Ex.PW 20/I) revealed that he had met the
Appellant in Jamshedpur, Jharkhand for a discussion on Islam and
religion. He further stated that he was interested in studying at a
Madrasa and wanted to become a Hafiz. Initially his family members
did not agree to send him to a Madrasa to study. However, his brothers
convinced his father to send him to a Madrasa. Co-Convict No.3 also
revealed that he used to watch video/speeches of most wanted militant
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Mr. Maulana Masood Azhar of JeM and Mr. Hafiz Saeed of JuD on
internet and due to the same he got inclined towards Jihad and asked
the Appellant to send him to Pakistan for arms training. Co-Convict
No.3 also stated that in June 2012, he met one Mr. Abu Sufiyan, who
was also interested to go to Pakistan for arms training. Pursuant to the
same Co-Convict No.3 set up a meeting with the Appellant and the
Appellant assisted Co-Convict No.3 and the aforesaid Mr. Abu Sufiyan
to go to Pakistan via Dubai.
xvii. Co-Convict No.3 further stated that he received arms training in
Pakistan and pursuant to the same in January 2015 he returned to Dubai
and continued residing there till March 2015 when he returned to India
via Nepal and met the Appellant who allegedly told him to remain in
touch so that further terrorist activities could be co-ordinated .
xviii. It is alleged that during investigation upon verifying the passport, it was
found that no arrival/departure entry of Pakistan was reflecting on the
passport of Co-Convict No.3. The travel details of Co-Convict No.3
were also verified and a Notice dated 31st December, 2015 (Ex.PW
29/I) under Section 91 Cr.P.C was issued to Emirates Airlines for
seeking information regarding Co-Convict No.3 and the aforesaid Abu
Sufiyan. Vide reply dated 04th January, 2016 (Ex.PW 29/J) Emirates
Airlines informed that both of them travelled from Kolkata to Dubai on
27th January, 2014. After further verification it was also established that
Co-Convict No.3 had returned to Dubai on 05th January, 2015 and later
returned to India via Nepal in March. It is pertinent to note that Co-
Convict No.3 is a co-accused with the Appellant in FIR No. 21/2016
(Ex. PW 56/O) dated 25th January, 2016 at P.S. Bistupur East Singbhum
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District Jamshedpur.
xix. On 09th August, 2017 one Mr. Syed Mohd. Zishan Ali was apprehended
at the Indira Gandhi International Airport, Delhi and it is alleged that
Mr. Syed Mohd. Zishan Ali was found providing logistics/financial aid
to the members of AQIS in India and abroad. It is further alleged that
on 16th October, 2015, Mr. Syed Mohd. Zishan Ali came to Bengaluru
by air from Saudi Arabia to attend a Walima on 26th October, 2015. On
the basis of a transcript of an intercepted call (Ex.PW 43/G) between
the Appellant and Mr. Syed Mohd. Zeeshan Ali, it is alleged that he had
also invited the Appellant for the Walima.
xx. On 28th August, 2020 one Mr. Sabeel Ahmed was arrested at the Indira
Gandhi International Airport, Delhi. It is pertinent to note that Mr.
Sabeel Ahmed was declared a Proclaimed Offender vide order 12th July,
2016 by the ld. ASJ. It is alleged that Mr. Sabeel Ahmed used to send
an amount of Rs.25000/- from his rental income to the Appellant from
Saudi Arabia through one Tajir Pasha (PW-51) and Amr Syed.
xxi. Mr. Sabeel Ahmed was also found to be involved in case RC No.
04/2012/NIA/Hyd dated 25th November, 2012 for allegedly hatching
conspiracy to kill prominent politicians, police officers and journalists
in Bengaluru, Hubli, Hyderabad and Nanded in collusion with
members of LeT based in Saudi Arabia.
xxii. After the completion of investigation on 10th June, 2016 chargesheet
under Sections 18, 18-B and 20 of the UAPA was filed against the
Appellant and other co-convicts/co-accused persons before the ld. Trial
Court. On 18th March, 2019 a supplementary chargesheet was filed
against the Appellant and Sections 464, 465, 468, 471, 174A, 120B,
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174A of the IPC and Section 12(1)B of the Passports Act, 1967 were
added.
xxiii. Vide Order dated 17th October, 2017 passed by the ld. Trial Court
charges were framed against the Appellant and other co-convicts under
Sections 18, 18-B and 20 of the UAPA. The relevant of portion of the
said order on charge qua the Appellant is reproduced hereinbelow:
…..
“14. Accused Mohd. Abdul Rehman (accused no.
3)
a) On disclosure dated 14.12.2015 of accused Mohd.
Asif, on 16.12.2015, accused Mohd. Abdul Rehman was
apprehended from Cuttack, Odisha u/s 41.1 Cr.PC
along with mobile phone, Tab, Passport, SO card, voice
recorder, compact disks, PAN card, Trust Deed, paper
slips having lots of mobile phone numbers, etc. and on
17.12.2015, he was arrested in this case.
b) During investigation, he admitted that in 1999, he
had met one Jaish-e-Mohd. (JeM) militant Salim r/o
Pakistan, in Deoband, UP who was involved in
hijacking of IC-814 Indian Airlines flight from Nepal
and release of JeM militant Mulana Masood Azhar by
Govt. of India.
c) He also provide safer hideouts to militants Salim,
Mansoor & Sajjad, all r/o Pakistan of terrorist outfit
JeM for terrorist activities in India but they were killed
in shootout at Gomti Nagar, Lucknow, UP in April 2001.
d) During investigation, accused Mohd. Asif Rehman
admitted that in the year 2009, in Bangalore, he had met
wanted accused Dr. Sabeel Ahmed [accused no. 11
(xiv)] who had come in India from London after
releasing from jail as his brother Kafil Ahmad had
committed suicidal attack in Glasgow airport, London
in year 2007.
e) This accused disclosed that wanted accused Sanaul
Haq @ Maulana Asim Umar (head of AQIS) had also
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studied with him at Darul-uloom, Deoband.
f) During investigation, it revealed that that accused
Mohd. Abdul Rehman had sent accused Mohd. Umar @
Umar Hyderabadi (wanted), Abu Sufyan (wanted) and
accused Abdul Sami (arrested) Pakistan for training
through other wanted accused Syed Mohd. Arshiyan,
Dr. Sabeel Ahmad and Sahid Faisal @ Yusuf. Report of
AD/CFB, MHA, Govt. of India showing their departure
from India is placed on record.
g) During investigation, it is revealed that between
08.01.2015 to 28.02.2015, he visited Saudi Arab and
during this period, he illegally travelled Pakistan for
meeting various outfit members. As per report of
‘Emirates Airlines, Dubai, UAE’, he had travelled from
Karachi to Dammam via Dubai on 15/16 February,
2015. His passport does not have any arrival/departure
visit stamps or Visa of Pakistan. Report of Emirates
Airlines showing his illegal Karachi visit is placed on
record.
h). During investigation, accused Mohd. Abdul
Rehmann admitted that during his illegal visit to
Pakistan. he met militant Zakir-ur-Rehman Lakhwi,
Chief of Lashkar-e-Toiba in Rawalpindi Jail, militant
Hafiz Syed, Chief of Jamiat-ul-Dawa in Lahore, militant
Kasim Bhai @ Sajid Mir (wanted in 26.11.2008 Mumbai
attack) and accused Faratullah Gauri @ Chacha
[accused no. 11 (xvi)] for planning to carry out more
terrorist activities in India.
i) Besides above, accused Mohd. Abdul Rehman is found
in contact with a criminal namely Raju r/o Tata
Jamshedpur, having Jihadi mindset, who used to run an
arms factory. In the year 2012, Raju and his associates
gave the delivery of arms in Bangalore but before any
terrorist outcome, this huge quantity of arms was seized
by the police.
j) During investigation, it is revealed that in September
2015, accused Mohd. Abdul Rehman visited Bangalore
and received a call of accused Mohd. Asif on mobile
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phone of PW Tajir Pasha @ Athar r/o Bangalore and
then met him there. Mohd. Asif gave him the message of
wanted accused Mohd. Umar @ Umar Hyderabadi
[accused no. 11 (xvii)] by introducing himself as India’s
head of AQIS and wanted accused Sanaul Haq @
Maulana Asim Umar (head of AQIS). Mohd. Asif
discussed with him about the planning and objectives of
AQIS and he requested for more youths for
strengthening its base in India. Intercepted call and
statement of witness Tajir Pasha @ Athar is placed on
record in this connection.
k) There is also another intercepted call dated
11.09.2015 between accused Mohd. Asif and Maulana
Abdul Rehman, which proves the linkage among these
arrested and wanted accused persons. In this
intercepted call, they are also talking about wanted
accused Mohd. Umar @ Umar Hyderabadi [accused
no. 11 (xvii)]. Said intercepted call is placed on record.
l) He is also found involved in the following cases:-
i. FIR No. 21/2016, u/s 121, 121A, 120-B, 341PC,
25(1b)A, 26, 35 Arms Act, 1 CLA Act-1908, 6,8,19,20,23
Unlawful Activities (Prevention) Act-1967, PS Bistupur,
East Singhbhum, District Jamshedpur, Jharkhand.
ii. Case No. 244/20015, uls 17,18, 18-Bb,20 Unlawful
Activities (Prevention) Act, PS Jagatpur, Cuttack,
Odisha and Case No. 3, dated 25.02.2016, PS Special
Task Force, Bhubaneshwar, Odisha.
m) There are also statement of witnesses namely Dil
Nawaj and Khalid Pasha showing that accused
Maulana Abdul Rehman used to give jihadi speeches
and cultivating them to go Pakistani Afghanistan for
jihadi trainings.
xxx xxx xxx
19. Let charge for offence u/s 18, 18-8 and 20 of UA(P)
Act be framed against accused Mohd. Asif, Zafar
Masood, Mohd. Abdul Rehman and Abdul Sami
(accused no. 1 to 4 respectively).”
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xxiv. In order to prove its case the prosecution has examined as many as 60
witnesses to prove the guilt of the Appellant and other co-convicts.
After the conclusion of the prosecution evidence, statements of all the
accused persons was recorded under Section 313 Cr.P.C wherein they
all had refuted the case of the prosecution. All the accused persons had
opted not to lead any evidence in their defence.
xxv. After the conclusion of the trial, ld. Trial Court, vide the Impugned
judgment of conviction dated 10th February, 2023 has held the
Appellant and other co-convicts guilty for offences punishable under
Sections 18/18B of UAPA.
4. Hence, the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT
5. Learned Counsel appearing on behalf of the Appellant submitted that
on the basis of the evidence which has been adduced, no act has been
committed by the Appellant which can be termed as a “Terrorist Act” under
Section 15 of the UAPA. He had pointed out the following paragraph of the
impugned judgment to argue as under:
“PREPARATORY ACT TO THE COMMISSION OF
TERRORIST ACT :-
77. Accused Maulana Abdul Rehman has also been
projected as one of the main accused in this case. There
are allegation that he was collecting fund for terror
activities in India as well as in abroad. His role is also of
recruiting accused Syed Mohd. Zishan Ali, Mohd. Abdul
Sami, Mohd. Umar @ Umar Hyderabadi (P.O) and Syed
Mohammad Arshiyan @ Haider (P.O). It is also alleged
against him that he was found visiting Pakistan illegally
for obtaining arms and ammunitions and also for
obtaining training where he also met top wanted
militants. Accused Maulana Abdul Rehman was alsoSignature Not Verified
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found obtaining financial assistance from co-accused Dr.
Sabeel Ahmed and accused Syed Mohd. Zishan Ali for
running terror activities.”
The various heads under which the ld. Trial Court had convicted the Appellant
are that:
(i) Appellant had committed preparatory acts for the commission of a
terrorist act;
(ii) Appellant had links with one Mohd. Asif i.e., Co-Convict No.1
from whom substantial incriminating material was retrieved;
(iii) Appellant had also made speeches against the interest of the nation;
(iv) Appellant had visited Pakistan in a covert manner, with Co-Convict
No.1;
(v) Appellant was involved in radicalisation of youth and collection of
funds for a terrorist organization;
(vi) Hate videos were recovered from his mobile phone apart from other
anti-national material.
6. Ld. Counsel for the Appellant submitted that there is in fact no
evidence to prove any of the above, inasmuch in the evidence given by the
witnesses, they do not implicate the Appellant for any terrorist activity. It was
further submitted that reliance was placed on the testimony of Mohd. Saquib
Khan (PW-46), who merely stated that the speeches of the Appellant did not
reflect true Islam and this cannot be inferred to mean that the Appellant was
promoting terrorism in any manner. It is further submitted that reliance was
placed upon mere pictures or hate speeches, none of which have been
exhibited in the prosecution evidence.
7. Ld. Counsel for the Appellant further submitted that insofar as visit to
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Pakistan was concerned, Sh. R. Ramanathan (PW-29), who was the security
supervisor in the Emirates Airline, has merely alleged that a journey was
undertaken from Karachi to Dammam via Dubai on 15/16th February, 2015
by the Appellant. It is further submitted that though the tickets dated 13th
February, 2015 and 15th February, 2015 have been produced, the passport
number is not mentioned on the same. The covering letter did mention the
passport number, however the said letter had not been proved before the ld.
Trial Court in accordance with law. It was further submitted that the signature
of Dr. Abdulla Al Hashimi (who was heading the group security Emirates
Airlines) and who had signed the letter is attempted to be proved by Sh. R.
Ramanathan (PW-29) before the Ld. Trial Court. However, the said evidence
is not sufficient and cannot conclusively establish that the Appellant had
travelled to Pakistan.
8. Ld. Counsel for the Appellant submitted that Sh. R. Ramanathan (PW-
29), the Security Supervisor from Emirates Airlines, produced the verification
report as well as the information regarding the journey undertaken by the
Appellant, showing the two tickets with journey details of 13th February,
2015 and 15th February, 2015. It was argued that Sh. R. Ramanathan PW-29
during cross examination admitted that the passport number is not mentioned
in the tickets (Ex.29C/D/H and J) and therefore the same is not conclusive and
does not clearly establish that the Appellant had undertaken a journey to
Pakistan.
9. Ld. Counsel for the Appellant submitted that with regard to the
allegation of radicalisation of youth is concerned, Mr. Md. Saquib Khan (PW-
46) and Mr. Sayed Dil Nawaz (PW-4) had given evidence which merely
showed that two persons were to be given a job abroad and that the Appellant
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would have helped in the same. Ld. Counsel for the Appellant further
submitted that the evidence given by the aforesaid witnesses would show that
there was no discussion of anything linked to terrorism or any form of
violence. Ld. Counsel for the Appellant submitted that Mr. Md. Saquib Khan
(PW-46) merely stated that he was asked by the Appellant whether he would
be willing to train students in basketball or karate as he was a national player.
The said witness in fact stated that he could not decipher the intention of the
Appellant properly and therefore he had not made any complaint to the police.
In view of above ld. Counsel for the Appellant submitted that in the present
case there is insufficient evidence against the Appellant and the ld. Trial Court
has reversed the burden of proof to show the negative.
10. Ld. Counsel for the Appellant submitted that with regard to the
recovery of objectionable material from the Appellant’s phone is concerned,
in paragraph 135 of the impugned judgment, the recovery of some
objectionable material in connection with Al Qaeda from Co-Convict No.1 is
discussed, however, the direct connection between the Appellant and Co-
Convict No.1 has not been established.
11. Ld. Counsel for the Petitioner submitted that it has been alleged that the
Appellant used to criticise the BJP and RSS in his speeches and the same is
far from being inculpatory in any way whatsoever, as these were mere
opinions held by a person against an organization. In fact, this kind of opinion
about various organisations is held by many persons throughout the country
including public personalities, and cannot be made the basis for any inference
as to membership of a terrorist organization, or any conspiracy to hurt any
person by the commission of a terrorist act. It is pertinent to mention that
Khalid Pasha (PW-3), in his statement clearly mentioned that the Appellant
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never did or said anything illegal. Thus, the allegations are frivolous in nature
as there is no act committed by the Appellant which suggested any planning,
or recruitment towards commitment, abetment or even instigation towards
any terrorist activity. Ld. Counsel for the Appellant also highlighted that in
the deposition of Mr. Syed Dil Nawaz (PW-4), there is no indication that the
Appellant called for violence or recruited for a terrorist organisation or had
any connection with any terror organisation.
12. Ld. Counsel for the Appellant submitted that as far as Sh. Imitiaz
Ahmed (PW-49), is concerned, he merely stated that he was working as an
attendant in Lal Masjid, Shivaji Nagar, Bengaluru area and after seeing the
photograph, he recognised the Appellant and stated that he was involved in
collection of chanda and donation about 15 years back. He identified the
Appellant in Court as the person who used to come for collecting chanda.
This cannot be construed as something which reflects the Appellant’s
involvement in collection of funds for terrorist activity.
13. Ld. Counsel for the Appellant submitted that as far as the intercepted
phone call with Co-Convict No.1 is concerned, the same took place on the
mobile phone of Mr. Tajir Pasha (PW-51). Also, the transcript only reflected
that the Appellant had no idea who co-convict No,1 was. Furthermore, no
sanction under Section 46 of the UAPA was taken for the same and there is
absolutely nothing incriminating in this conversation.
14. Reliance has been placed on the following judgments by Ld. Counsel
for the Appellant:
Signature Not Verified
Digitally Signed CRL.A. 280/2023 Page 16 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
(i) Ranvir Yadav vs State of Bihar; (2009) 6 SCC 595
(ii) Vernon vs State of Maharashtra and Anr; 2023 SCCOnLineSC 885
(iii) Hitendra Vishnu Thakur vs State Of Maharashtra (1994) 4 SCC
602
SUBMISSIONS ON BEHALF OF THE RESPONDENT/STATE
15. Ld. APP for the State had submitted that Section 2(o) of the UAPA
which defines ‘unlawful activities’, specifically mentions acts of an individual
spoken or written or any visible representation which causes or intends to
cause any disaffection towards the country or is disrupting or intends to
disrupt the territorial integrity or sovereignty of the country.
16. Ld. APP for the State further submitted that the transcription which has
been placed on record of the audio files which were traced from the mobile
phone of the Appellant would show the kind of ideology that he professes and
also the manner in which he professes violence against the country as also the
Prime Minister. It was further pointed out that there were several references
regarding taking revenge in Gujarat, Orissa and other States and the Appellant
is stated to have also been involved in collection of donation and recruitment.
Ld. APP for the State further submitted that the Appellant had visited Pakistan
illegally to obtain arms and ammunitions and the same fact has been
elaborated in paragraph 77 of the impugned judgment.
17. Ld. APP for the State submitted that Mr. Syed Dil Nawaz (PW-4) and
Mr. Md. Saquib Khan (PW-46) have established the conspiratorial nature of
the Appellant’s activities while visiting Lal Masjid in Karnataka. The sum and
substance of the evidence given by Mr. Syed Dil Nawaz (PW-4) and Mr. Md.
Saquib Khan (PW-46) reflects that there was a clear attempt to recruit persons
for terrorist activity to damage the sovereignty and integrity of India. Further
Signature Not Verified
Digitally Signed CRL.A. 280/2023 Page 17 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
it has also been confirmed that the Appellant had come to collect donations
from the Masjid area.
18. Ld. APP for the State pointed out that in Paragraphs 82 to 84, 85 and
88 of the impugned judgment, the ld. Trial Court has appreciated that the
Appellant was involved in radicalising youth to perform jihad against the
country. To establish the conspiracy alleged under Section 18 of UAPA,
reliance is placed upon the connectivity/connection between the other co-
convicts and the sequence of inflammatory speeches as also the deposition of
Mr. Syed Dil Nawaz (PW-4) and Mr. Md. Saquib Khan (PW-46).
19. Ld. APP for the State submitted that the Appellant had a direct link with
Co-Convict No.1 and Mr. Tajir Pasha (PW-51). It is submitted that FSL of
the intercepted call was conducted and the report clearly stated that the voice
in the intercepted call matched with that of the Appellant, Co-Convict No.1
and Mr. Tajir Pasha (PW-51). Further the location of all the three people was
found to be in Bangalore. Hence, it is established that there is a direct link
between the Appellant and the other co-accused/co-convict mentioned above.
ANALYSIS & FINDINGS
20. Heard the ld. Counsel for the parties and perused the record.
21. After the completion of investigation, chargesheet under Sections 18,
18-B and 20 of the UAPA was filed against the Appellant and other co-
convicts. On 18th March, 2019 a supplementary chargesheet was filed against
the Appellant under Sections 464, 465, 468, 471, 174A, 120B, 174A of the
IPC and Section 12 (1)(b) of Passport Act 1967. Vide order on charge dated
17th October, 2017 and 19th April, 2022 respectively the Appellant was
charged under Section 18, 18-B and 20 of UAPA, Section 467, 471 of IPC
Signature Not Verified
Digitally Signed CRL.A. 280/2023 Page 18 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
and Section 12 (1)(b) of the Indian Passport Act by the ld. Trial Court.
22. Vide the impugned judgment the Appellant was convicted for the
offences punishable under Sections 18 and 18-B of the UAPA and was
acquitted for the offences punishable under Section 20 of UAPA, Section 467
and Section 471 of IPC and Section 12 (1)(b) of the Indian Passport Act. The
relevant portion of the impugned judgment is reproduced hereinunder:
“134. In the present case, firstly, accused
Mohd. Asif was arrested. His connection with accused
Abdul Rehman through Call Detail Records, matching of
their voice samples has already been established. The
conduct of accused Mohd. Asif with accused Zafar
Masood in withdrawal from the bank account of his wife
and corresponding booking the travel tickets by giving
cash and travelling with accused Mohd. Sharjeel Akhtar
and Mohd. Rehan shows their connectivity with each
other. Similarly, accused Abdul Rehman is found
connected with accused Mohd. Asif through the
telephonic calls and matching of voice samples.
Accused Abdul Rehman is also found connected with
accused Abdul Sami in view of the testimony of Mohd.
Saquib Khan (PW46). In this manner, accused Mohd.
Asif, Maulana Abdul Rehman, Zafar Masood and
Abdul Sami are found to be connected with each other
directly or indirectly.
135. Merely having contact with each other will not
be sufficient in order to prove the existence of conspiracy
between them. Common object is also required to be
established from the conduct of the accused persons. So
far as accused Mohd. Asif is concerned, from his
possession objectionable material of his connection
with Al-Qaida and also material of procedure to prepare
explosives with the help of various methods etc, as
discussed above were recovered. recovery has been
effected of inflammatory material i.e. a video folder
MP4 file containing hatred video with pics of politicalSignature Not Verified
Digitally Signed CRL.A. 280/2023 Page 19 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
leaders including Sh. Narender Modi, Prime Minister
of India. There are two more video MP4 files found to
be containing hatred speech by a Maulvi and
antinational/ hatred video of Kashmiri people. Accused
Mohd. Asif and Abdul Rehman were following the same
design which indicates towards such an act of
threatening the unity, integrity, security of the country.
This belief from the conduct of the accused and
recovery from accused persons further finds support
from the fact that accused Mohd. Asif went to Pakistan
along with Mohd. Sharjeel Akhtar and Mohd. Rehan.
Mohd. Asif himself came back to India but whereabouts
of Mohd. Sharjeel Akhtar and Mohd. Rehan are still not
known and the amount of their tickets still remained un-
utilized as per the statement of witnesses. The conduct of
accused Mohd. Asif however indicates towards his
involvement in illegal activity when he got issued an
emergency certificate Ex. PW 56/G from Consulate
General of India, Istanbul on the basis of false
submissions/representations. Accused Mohd. Asif has not
been able to justify his absence for such a long period
from the country and his existence is registered during
that period neither in India nor in Iran for which he got
issued the tickets for travelling. Moreover visit of
accused Abdul Rehman, Abdul Sami, Zafar Masood to
Pakistan and their direct or indirect inter-se connection
further strengthens the belief that accused Mohd. Asif
had also visited Pakistan during the abovesaid period.
In these circumstances, direct evidence qua his visit to
Pakistan has not come out but his conduct and
recoveries from his possession and his unexplained
absence shows that he went to Pakistan for the purpose
of executing some preparatory act for terrorism in
India. This belief further finds support from the fact that
when he was trying to contact PW5 Mohd. Zeeshan,
brother of accused Mohd. Rehan to hand over the letter
kept in an envelope. It is established that the said
envelope bears the handwriting of accused Mohd. AsifSignature Not Verified
Digitally Signed CRL.A. 280/2023 Page 20 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
which further strengthens the belief of existence of some
conspiracy against the interest of the nation.
136. Similarly, accused Abdul Rehman was also
following the same objective as that of accused Mohd.
Asif which is evident from the testimony of PW4 Syed
Dil Nawaj and PW46 Mohd. Saquib Khan who have
proved that the speeches of accused Abdul Rehman
were inflammatory and were against the interest of the
nation. Witnesses have also established his journey to
Pakistan. There is no explanation about the reason of
his journey to Pakistan.
137. It is has been held by Hon’ble Supreme Court in
the case of Navjot Sandhu (supra) that in most of the
cases of conspiracy, there may not be direct evidence of
agreement amounting to criminal conspiracy but if the
circumstance is considered together, it would establish
beyond reasonable doubt that accused was party to the
conspiracy and had played active part in various acts
done in furtherance of conspiracy and such
circumstance cannot be viewed in isolation. From the
conduct and action of the accused persons, the Court can
draw a presumption u/s 114 of Indian Evidence Act
having regarding to the natural course of events and
human conduct to show the nexus between the accused
persons. From the conduct of accused Mohd. Asif,
articles recovered from his possession, his booking of the
tickets by obtaining money from accused Zafar Masood,
his contact with accused Abdul Rehman, further his visit
to Banglore, staying in Blue Star Lodge, Banglore,
having telephonic conversation with accused Abdul
Rehman through the phone of PW51 Tajir Pasha shows
the connection between them. Despite that the contents of
their intercepted conversation is inadmissible piece of
evidence but still the evidence available on record is
sufficient to show their connection. Moreover accused
Mohd. Asif obtained a sum of Rs.2 lacs from PW 44
Bhagirath Dass who has identified accused Mohd. Asif
being the same person and unexplained source of moneySignature Not Verified
Digitally Signed CRL.A. 280/2023 Page 21 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
and its use and failure of the accused to show the purpose
for which the same was received by him along with his
visit to Pakistan and furnishing false information to the
Consulate General of India are sufficient to show the
existence of conspiracy.
138. Similarly, from the conduct of accused Abdul
Rehman, articles recovered from his possession,
testimony of PW4 Syed Dil Nawaj and PW46 Mohd.
Saquib Khan, his travel to Pakistan, his contacts with
accused Mohd. Asif and also the testimony of PW46
Mohd. Saquib Khan who has deposed about accused
Abdul Sami and his recruitment abroad and also
allurement of PW46 Mohd. Saquib Khan for an
overseas job also indicates towards the existence of
conspiracy.
139. The conduct of accused Zafar Masood in which
he gave money to accused Mohd. Asif amounting to Rs.1
lakh, his visit to Pakistan and also obtaining four
Passports of deceptive similarities in his name and
parentage. The recovery of forged School Leaving
Certificate which is also proved by the relevant
witnesses. It has also come on record that he got issued
four Passports. When someone is getting issued the
Passport in such a manner, the possibility of its use to
hide his travel more specifically for the purpose of illegal
travel to Pakistan in view of his conduct and facts and
circumstance of this case cannot be ruled out. There has
been recovery of some international numbers of Saudi
Arabia but keeping the international numbers is not an
offence but accused has not been to justify the existence
of these numbers in his mobile phone. Keeping in view
the totality of circumstances, the prosecution has been
able to establish the involvement of accused Zafar
Masood alongwith co-accused in achieving a common
object in furtherance of conspiracy.
140. In the similar manner, the conduct of accused
Abdul Sami and his connection with accused Abdul
Rehman is not far from indicating him also as one of theSignature Not Verified
Digitally Signed CRL.A. 280/2023 Page 22 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
constituents for conspiracy alongwith other accused
persons. As per the evidence produced by the
prosecution, he travelled to Pakistan illegally hiding his
travel by creating forged and fabricated
departure/arrival stamps of Immigration on his passport.
His direct contact and recruitment by accused Abdul
Rehman is also established by witnesses more
specifically PW46 Mohd. Saquib Khan. His conduct and
overt act also is indicating towards the existence of
conspiracy and his involvement in the same.
Therefore, from the facts and circumstances, conduct
of the accused persons, it is established beyond
reasonable doubt that accused Mohd. Asif and Abdul
Rehman were indulged in carrying out such acts to
disturb the unity and integrity, peace and tranquillity of
India and for that purpose, they not only travelled to
Pakistan illegally but also roped in accused Abdul Sami,
Zafar Masood in their common design. Although the
present case is not about committing of a specific
terrorist act but act of accused persons is indicating
towards preparation of some terrorist act. Preparatory
act is being indicated by the conduct of the accused
persons and the prevailing circumstances as no person
normally would be indulged in such kind of activities. The
activities of each accused persons are not to be seen in
isolation. The evidence available on record clearly
indicate towards the existence of conspiracy to commit a
terrorist act but when the interse link of the accused
persons, their illegal travel to Pakistan , recruitment of
young persons in their terror outfit, inflammatory
speeches, objectionable articles, obtainment of
emergency certificate on false representation,
obtainment of various passports by creating false and
fabricated documents, if taken up as a whole and
weighed, it gives a cumulative effect of existence of some
common design or object to achieve something which is
not in the interest of the country. The act of the accused
persons shows that their conduct was conscious andSignature Not Verified
Digitally Signed CRL.A. 280/2023 Page 23 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
clearly enough to infer their concurrence as to their
common design and its execution. The evidence produced
by the prosecution considering the surrounding
circumstances and the conduct of the accused persons to
show that the same is a relevant material which is
required to complete the offence of conspiracy and also
to show an agreement between the accused persons. Such
agreement of doing a preparatory act to commit a
terrorist act can never be a disclosed agreement which is
required to be inferred from the circumstances and the
conduct of the accused persons. Therefore, in the totality
of circumstances, it is proved beyond reasonable doubt
that act of accused persons was preparatory in nature
with the intention to disturb the peace, tranquillity, unit,
integrity and security of the country within the meaning
of Section 15 and Section 18 of UAPA.
141. So far as recruitment for the purpose of terrorist
act is concerned, the evidence in the form of PW46 Mohd.
Saquib Khan is there who has deposed about his
association with accused Abdul Rehman, Abdul Sami and
his recruitment for the overseas job and also attempt of
influencing Mohd. Saquib Khan (PW46) by accused
Abdul Rehman to join his outfit under the garb of
overseas job within the meaning of Section 18 and
Section 18B of UAPA.
So far as accused Mohd. Asif is concerned, there is
evidence against him that alongwith him, he also took
Mohd. Sharjeel Akhtar and Mohd. Rehan to Pakistan
after obtaining money from Zafar Masood. Accused
Mohd. Asif travelled alongwith them by booking the
travel tickets also shows his involvement in the
recruitment of young persons for the purpose of
commission of terrorist activities within the meaning of
Section 18 and Section 18B of UAPA.
142. It has been alleged against the accused persons
that they were members of the banned terrorist
organisation Al- Qaeda and more specifically its Indian
outfit i.e. AQIS. The evidence already come on recordSignature Not Verified
Digitally Signed CRL.A. 280/2023 Page 24 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
establishes the existence of conspiracy between accused
Mohd. Asif, Abdul Rehman, Abdul Sami and Zafar
Masood having common objective of disturbing the peace
and tranquillity of India for which they joined hand
together. From the possession of accused Mohd. Asif,
incriminating material has been recovered which is
connected with Al-Qaeda. The connection between
accused Abdul Rehman, Zafar Masood, Mohd. Asif and
Abdul Sami has already been established and it is also
established that all the accused persons were acting
towards the achievement of common object, therefore,
their direct and indirect association with each other and
inclination towards Al-Qaeda, which has been declared
a terrorist organisation under Schedule-I of UAPA,
shows that they were associated with Al-Qaeda only.
Being the members of the such terrorist organisation,
seldom be an open affair, anyone who is joining such
terror outfit would be concealing his identity and acts. It
cannot be expected that such membership would be
offered in public. It is only from the conduct, facts and
circumstances and their association, inference can be
drawn about their association or involvement with a
terrorist organisation. Although direct evidence to show
that they were members of terrorist organisation ‘Al-
Qaeda’ are missing but facts and circumstantial evidence
produced by the prosecution shows their association with
the terrorist organisation. Therefore, the ingredients of
membership of terrorist organisation within the meaning
of Section 20 of UAPA are not proved. Despite that, there
is no bar to prove the charges u/s 18, 18B of UAPA for
which membership is not required.
143. As a cumulative effect of the above detailed
discussions, accused Mohd. Asif, Zafar Masood, Mohd.
Abdul Rehman and Abdul Sami @ Uzair @ Hasan are
held guilty for commission of offence punishable u/s 18
and 18B of UAPA and are convicted thereunder. Accused
Mohd. Abdul Rehman is acquitted of the offences
punishable u/s 467/471 IPC and also under Section 12Signature Not Verified
Digitally Signed CRL.A. 280/2023 Page 25 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
(1) (b) of the Indian Passport Act.”
xxx xxx xxx
(emphasis supplied)
23. The order on Sentence was pronounced on 14 th February 2023 in FIR
No. 67/2015 P.S. Special Cell passed by the ld. ASJ, Patiala House Court,
New Delhi whereby the Appellant was convicted under Sections 18 and 18B
of the UAPA and the Appellant was sentenced to undergo rigorous
imprisonment for a period of seven years and five months and fine of
Rs.25,000/- each for the offence punishable under Section 18 UAPA. In
default of payment of fine, SI for a period of three months each was also
directed. Similar sentence was also awarded under Section 18B. The operative
portion of the order on sentence reads:
“Vide separate order, the convicts, namely, Mohd. Asif,
Zafar Masood, Mohd. Abdul Rehman and Abdul Sami
are sentenced to undergo Rigorous Imprisonment for
period of seven years and five months and fine of
Rs.25,000/each for the offence punishable under Section
18 UAPA. In default of payment of fine, SI for a period
of three months each.
For the offence punishable u/s 18B UAPA, all the four
convicts are sentenced to undergo to undergo Rigorous
Imprisonment for period of seven years and five months
and fine of Rs.25,000/each for the offence punishable
under Section 18 UAPA. In default of payment of fine,
SI for a period of three months each.”
24. The appellant has already undergone more than 7 years the sentence
awarded in this case, but is stated to be in custody in Giridih Jail in Jharkhand.
The Appellant was transferred from Mandoli Jail, Delhi to Giridih Jail on 17th
September, 2023. An FIR No. 21/2016 was registered against the Appellant
at P.S. Bistupur, East Singhbhum District Jamshedpur, Jharkhand, under
Signature Not Verified
Digitally Signed CRL.A. 280/2023 Page 26 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
Sections 121, 121A, 120B, Sections 25(1)(b), 26, 35 of Arms Act and 34 of
IPC and Sections 6, 8, 19, 20, 23 of the UAPA.
25. It can be seen that the ld. Trial Court convicted the Appellant and other
co-convicts for conspiracy to commit acts which constituted preparation
towards commission of some terrorist act. The ld. Trial Court came to the
aforesaid conclusion on the basis of evidence indicating existence of a
conspiracy to commit a terrorist act which included, their illegal travel to
Pakistan, recruitment of persons to their terrorist outfit, inflammatory
speeches, objectionable articles, obtainment of emergency certificate on false
representation, and and obtainment of various passports by creating false and
fabricated documents. As per the ld. Trial Court these circumstances if
considered together “gives a cumulative effect of existence of some common
design or object to achieve something which is not in the interest of the
country”. The evidence which was the basis of the aforesaid finding is
discussed hereinafter.
26. One of the witnesses, whose testimony is considered by the ld. Trial
Court to conclude that the Appellant had given inflammatory speeches is, Mr.
Syed Dil Nawaz (PW-4). The said testimony is reproduced hereinbelow for
the sake of completeness:
“PW- 4: Sh. Sayed Dil Nawaz S/o Sayed Abdul Rahim,
aged about 23 years,r/o Village Gujarpur, P.O.
Bhairpur, District Cuttack, Odisha.
On SA: C
My father is serving as He in Odisha Police and he
is posted at PS Bhushan, District Dhenkanal. In the
month of July 2014 I was pursuing B.Sc. In July 2014 I
had gone to mosque of my village to listen the speech of
Maulana Abdul Rehman for the first time. The speech
pertains to Quran and Ahadis so I liked it. On theSignature Not Verified
Digitally Signed CRL.A. 280/2023 Page 27 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
following day of the Idh I had gone to village of
Maulana Abdul Rehman i.e. Satwatia for hearing his
speech. After the speech I met him and I asked him that
I was not well conversant with Quran so I asked him to
get me corrected. Maulana Abdul Rehman asked me to
come to his Madarsa i.e. Jamiat Ul Harmain at Terwa
Village, Tangi, Cuttack. After 2/3 days I went to his
Madarsa for the purpose of studying Quran. In the
Madarsa Maulana Abdul Rehman used to send me for
buying eatables/ration for the Madarsa. On many
occasion I went to hear the speech of Maulana Abdul
Rehrtlan, he· used to start the speech with Quaran
however, thereafter, he used to start addressing on the
contentious issues like Dadri pertaining to lynching of
Akhlaq and of Jagatpur. He also used to deliver the
provocative speech to the effect that RSS, the BJP and
VHP conspire against the Muslims and that Muslims
should also unite. He also used to deliver speech
regarding Jehad. Since I did not find his speeches in
the interest of the Nation so I discontinued meeting
him since the month of November 2014. The
atmosphere in Odisha in peaceful so he used to bring
the issue of other States to Odisha which had absolutely
no concern with Odisha,. From the TV news I came to
know that accused Abdul Rehman was having
association with terrorist organization i.e. AI Qaida.
The police recorded my statement to this effect. I had
also made a statement before the Magistrate to this
effect.
At this stage, one sealed envelope sealed with the
seal of SKS (Sh. Sunil Kumar Sharma) is taken off from
the judicial record. Same is opened from which the
proceedings u/s 164 CrPC including the statement of
this witness is taken out. The statement is shown to the
witness which the witness admits to have made before
the L Magistrate. The statement consisting of five pages
is now EX.PW4/A bearing my signature at point A.
I can identify accused Abdul Rehman if shown to meSignature Not Verified
Digitally Signed CRL.A. 280/2023 Page 28 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
as he is resident of my nearby village.
Further examination in chief is deferred for
identity of the accused
Abdul Rehman who is not produced from JC
(Cuttack Jail, disha) today.
XXXXX by Sh. Sarim Naved, Ld. Counsel for
accused persons namely Mohd. Asif, Zafar Masood,
Abdul Sami and Abdul Rehman.
It is correct that my father is a retired police official
from the post of HC. My father retired on 3rd of July,
2022. In the year, 2013-14, he was posted as a
Constable. I met accused Abdul Rehman for the first
time on Eid in the year, 2014. I learnt Quran from him
for about 7-8 months. During these 7-8 months, I have
not made any complaints with my father against accused
Abdul Rehman. Vol. I went to learn Quran in Madarsa
despite reluctance of my father and I told him after my
return that everything is not fine there in Madarsa.
After leaving the Madarsa, neither myself nor my father
made any complaint with the authorities against
accused Abdul Rehman. I do not have any documentary
proof regarding my enrollment in the Madarsa of
accused Abdul Rehman. I was called once by police to
Delhi to get my statement recorded. I was served a
notice by Delhi Police through local police. I was served
with a copy of the notice but I have not brought the same
today. I came to Delhi by train. The train ticket was
booked by local police. I came to Delhi all alone but one
person by the name of Zainul has also come from Odisha
to Delhi. Zainul has come for his statement in this case.
It is wrong to suggest that I have neither studied
under accused Abdul Rehman nor I can identify him. It
is further wrong to suggest that I have never heard any
speech delivered by accused Abdul Rehman. Vol. He
came to deliver the speech in my village only and I have
heard him in the local Masjid also. It is further wrong
to suggest that I am deposing falsely at the instance of
police.
Signature Not Verified
Digitally Signed CRL.A. 280/2023 Page 29 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
XXXXX by Sh. M.S. Khan, Ld. Counsel for accused
persons namely Dr. Sabeel Ahmed and Syed Mohd.
Zishan Ali”.
(emphasis supplied)
27. A perusal of PW-4’s evidence, confirms that the Appellant used to give
provocative speeches and that he used to give speeches relating to jihad to
conspire against the political leaders of other communities. PW-4 has also
come on record to say that the speeches of the Appellant were inconsistent
with true Islam and that the Appellant was not in fact teaching true Islam. PW-
4 clearly states that the speeches of the Appellant were not in the interest of
the country. The testimony given before the Court was also in line with his
statement under Section 164 Cr.P.C., which was exhibited as Ex.PW-4/A.
28. As per PW-4 the Appellant who used to give religious speeches at the
mosque – used to deviate from religious preaching to address on contentious
issues as mentioned hereinabove and also used to deliver provocative
speeches to the effect that the RSS, BJP and VHP have conspired against
Muslims and that Muslims should also unite. He used to radicalize youth by
giving such inflammatory speeches in order to recruit them for commission of
terrorist acts. It is pertinent to note that the said witness in his testimony before
the ld. Trial Court has clearly stated that the Appellant used to propagate Jihad
in his speeches at the mosque. From a plain reading of the aforesaid testimony,
it can be clearly said that the Appellant’s speeches were inflammatory and
against the interest of the nation. Further, PW-4 in his statement under Section
164 Cr.P.C specifically describes Appellant’s speeches as –
“byaan bhi bhadkane wale hote the.”
The above statement leaves no manner of doubt that the speeches of the
Signature Not Verified
Digitally Signed CRL.A. 280/2023 Page 30 of 58
By:DHIRENDER KUMAR
Signing Date:23.12.2024
19:35
Appellant were instigating and exhorting to indulge in acts against the
Country and against the people of a particular community.
29. As per the ld. Trial Court the aforesaid testimony of (PW-4) read with
testimony Mr. Md. Saquib Khan (PW-46) would indicate that the Appellant
was also trying to recruit persons in furtherance of conspiracy to commit a
terrorist act. The testimony of Mr. Md. Saquib Khan (PW-46) is reproduced
hereinbelow for the sake of completeness:
“PW-46:Statement of Sh. Md. Saquib Khan, Sh.Md.
Sharrlsher Khan, Aged about 28 years, Rio TOP Kapali,
Sarakaila, Kharwarshan, Jamshedpur, Jharkhand.
On SA.
In the year 2015, I was about 16-17 years old. At that
time, I met with a person named Abdul Rehman in a new
mosque namely Sarffuddin Masjid near my home. In an
inauguration ceremony of mosque and madarsa, local
people invited Abdul Rehman. At that point of time, I also
met one Abdul Sami in the mosque, along with another
person, who was staying in Murda Maidan Madarsa,
along with his son. Name of that person was Kaleem and
his son was known by the name of Ujeffa. Kaleem and
Ujeffa introduced me to Abdul Sami and Abdul Rehman.
After 1-2 days of the inauguration, Ujeffa called me up
and informed me that Abdul Rehman is coming and he
wants to meet me. Accordingly, i met Abdul Rehman in
Ujeffa’s home. When I met him, he asked me to introduce
myself, my education, family background and what I was
doing that point of tine and what I was studying. After
that, returned back to my home. After few days, again,
Ujeffa called me and informed me that they are going to
organized Islamic speeches at Ranchi and in case, if I am
interested they can make my boarding and lodging
arrangements. I accompanied Ujeffa to Ranchi and after
attending the speech, we returned back to Jamshedpur on
the next day. After sometime, about a month or so, Abdul
Rehman inquired from me about my future study plans. ISignature Not Verified
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informed him that after completing my 10th class, I
intend to go abroad and work there. I also informed him
that I have got my passport prepared on my own. He
informed me that Abdul Sami has also got a job abroad
and in case, if I interested he can help me arrange a job
abroad. Ujeffa, thereafter, called me up one day and
asked me to open a Skype ID so that an interview can be
arranged. I accordingly, opened an account on Skype. I
received a voice call on Skype from one Zishan, who
inquired from me as to what I was doing, whereupon I
informed him that I am pursuing my one year Diploma
course in aviation course from APT, Institute from
Calcutta. I was constrained leave my aviation course
mid-way due to depression of my mother. After that I
came back from Calcutta to Jamshedpur and took my
mother to the doctor for treatment. At that point of time
also, one speech of Abdul Rehman was scheduled. I also
came to know that they intend to recruit young boys for
education. During that period, Ujeffa also called me and
inquired as to why I was not calling him. I informed him
that my mother is ill. I also met Abdul Sami, at that point
of time, in Jama Masjid, Sanchi, Jamshedpur, who told
me that he is going for the job to Dubai. I went back to
my home. Ujeffa again called me and asked as to why I
am not responding his calls? I informed him that the
situation of my family is really bad and we are all
dependent upon meagre income of my elder brother and
my father is not able to work and my mother is ill. He
asked me to wait for some time so that he can arrange a
job for me. After sometime, I got an interview call from
International Trade link, Mumbai to work as salesman in
Saudi Arabia. Meanwhile, Abdul Rehman has once again
got back to Jamshedpur. 1 was again contacted by Ujeffa,
who inquired about my intentions and informed me that
Abdul Sami has alrealy left for his overseas job. I told
him that I am not able to arrange money and I already
have a job offer from International Trade link and I shall
crave for Saudi Arabia very soon. Meanwhile, I alsoSignature Not Verified
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realised that the speeches of Abdul Rehman are
inconsistent with true islam and true islam is infact not
what Abdul Rehman was teaching. I accordingly, opted
to detach from these guys. Since I am a national level
basketball and karate player, on one or two occasions,
Abdul Rehman has requested me to teach madrasa kids
saying that since I know English, I am the best person
to teach these poor kids but I flatly refused the offer and
told him that I will only act as per the Government’s
directions in this regard. In the end of year, 2015, I went
to Saudi Arabia. I was not aware about the activities of
these guys. Upon my return after two years, on 25th or
26th December, 2017, I got a notice that I am required to
come to Delhi in Special Cell’s Branch. I accordingly,
came down to Delhi in January 2018, probably on 11 or
12 January. I went to Special cell office and shared my
entire credentials with them and once the inquiry was
over, I returned back to Jamshedpur after two days.
Witness correctly identifies the accused Abdul Rehman
and Abdul Sami, who are present in the court today.
At this stage, Ld. seeks permission of the court to put
leading question to the witness regarding the date of the
incident as quite some time has passed.
Heard and allowed on account of lapse of time.
It is correct that it all began in the year 2013 when I
was about 16-17 years old. Vol. Its an old incident.
It is correct that I was summoned in the Spl. Cell
where my statement was recorded wherein I narrated the
entire facts to the IO. The statement recorded in the Spl.
Cell is available on record and the same is Ex. PW46/A
(objected to by Ld. Defence counsel that statement
recorded u/s 161 CrPC cannot be used for corroboration
purposes by the prosecution and cannot be exhibited.
XXXXX by Sh. Qausar Khan, Ld. Counsel for accused
persons namely Dr. Sabeel Ahmed and Syed Mohd.
Zishan Ali.
It is wrong to suggest that I never came into contact
with Zishan at any point of time. It is further wrong toSignature Not Verified
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suggest that he never offered me any job nor conducted
any interview. It is further wrong to suggest that I am
depesing falsely at the instance of the 10.
XXXXX by Sh. Sarim Naved, d. Counsel for accused
persons namely Mohd. Asif, Zafar Masood, Abdul Sami
and Abdul Rehman.
My date of birth is 11.05.1994. It is correct that in the
year 2013, I was about 19 years old. I have studied in
Govind Vidyalaya, Tamolia, CBSE Board. I completed
my 10th in the year, 2012. I have not pursued my 12th
class education as I got enrolled for an Aviation diploma.
In they year, 2013-2014, I have not applied for any job.
In the year, 2014, I worked for three months in a call
centre in Jamshedpur. I have not formally pursued any
diploma in Islamic / Quranic studies. Since, I was not
able to discern the true intent of these guys, therefore, I
have not made any complaints against them with any
authorities. I had never gone to the Madrasa of Abdul
Rehman in Cuttack. Before coming to the court, I read
my statement twice. I have informed the police that I am
a national level player of karate and basketball.
At this stage, attention of the witness is drawn to the
statement recorded u/s 161 CrPC Ex. PW46/A wherein it
is not so recorded.
It is wrong to suggest that I am deposing falsely under
pressure of Spl. Cell.”
(emphasis supplied)
30. Witness-PW46 stated that the Appellant had offered him a job in the
same manner as the Appellant had secured job for Co-Convict No.3. The said
co-convict, Abdul Sami is alleged to have been sent by the Appellant to
Pakistan to get weapons training. The Appellant had encouraged PW-46 also
to follow the footsteps of Abdul Saami as is clear from PW-46’s
testimony. The Appellant was quite closely associated with Abdul Saami to
the extent that the Appellant had started introducing Abdul Saami to other
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persons including PW-46 as per PW46’s testimony. The said testimony is
sought to be used by the prosecution to demonstrate that the Appellant in
furtherance of conspiracy for committing a terrorist act was trying to recruit
persons like Mr. Md. Saquib Khan (PW-46).
31. It is pertinent to note that from the aforesaid testimony that the link
between the Appellant and Co-Convict No.3 can be established because the
witness PW-46 clearly states that the Appellant had told him, that he had got
Co-Convict No.3 a job abroad. The travel tickets of Abdul Sami from Calcutta
to Dubai are exhibited as Ex-PW 29/J. The testimony of PW-46 and
establishes a direct link between the Appellant and Co-Convict No.3.
32. The next circumstance relied upon by the prosecution as well as by the
ld. Trial Court in the impugned judgment is the evidence of Mr. Mohd. Sadiq
(PW-48). The testimony of Mr. Mohd. Sadiq (PW-48) is reproduced
hereinbelow for the sake of completeness:
“PW-48:Statement Sh. Mohd. Sadiq, Aged about 70
years, S/o Sh. Abdul Latif, R/o 151, Lal Masjid
Building, Jumma Masjid Road, Shivaji Nagar,
Bengaluru. On SA.
I am engaged as a Khidmatgar (service attendant) in
Lat Masjid for past about 20-22 years. I am residing in
the same Mosque (Lal Masjid). Police inquired from me
about one Imdadulla Khan whereupon I informed them
that no body by the said name is residing in the Lal
Masjid-The Police had shown me a photocopy of the
photograph aiready Ex.PW43/J2. After seeing the
photograph, I had told the police that the person in the
photograph had come for the collection of the Chanda
/ donations in Lal Masjid about 15 years back. The
police had also inquired from me regarding two persons
by the name of Mohd. Syed and Mr. Munir as to if they
also reside in the vicinity of the Lal Masjid whereupon iSignature Not Verified
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19:35
told them that even no one by the Lesides name of either
Mohd. Syed or Mr. Munir Jesides in the al tal Masjid or
its neighborhood. The police recorded my statement
which on record is already Ex.PW43/O, bearing my
signature at point B. I do not want to say anything else.
The witness identifies accused Abdul Rehman as the
person, who is present in the court today, as the man
who came to Lal Masjid to collect donations/chanda.
XXXXX by Sh. Rahul Sahani, Id. Counsel for
accused persons namely Dr. Sabeel Ahmed and Syed
Mohd. Zishan Ali.
Nil. Opportunity is given.
XXXXX by Sh. Sarim Naved, L.d. Counsel for accused
persons namely Mohd. Asif, Zafar Masood, Abdul
Sami and Abdul Rehman.
In the Lal Masjid on a daily basis around 400-500
devotees come to offer Namaz / prayer. Except for the
service attendant, there are no rooms for anybody in the
said Masjid. If anybody comes to collect donations, he
makes a request with the Masjid management
whereupon, the management persons makes a public
announcement of the same. It is not my task to make such
announcements. Vol. My only job is to sweep in the
Masjid. It is also not my job to accord permissions to
collect donations. It is wrong to suggest that I am
deposing falsely.”
(emphasis supplied)
The aforesaid testimony is relied upon by the prosecution to show that the
Appellant was collecting funds in order to commit terrorist acts
33. Another circumstance relied upon by the prosecution is with regard to
the illegal travel of the Appellant to Pakistan. It is the case of the prosecution
that the Appellant had travelled from Karachi (Pakistan) to Dammam (Saudi
Arabia) via Dubai (United Arab Emirates) on 15/16th February, 2015 and to
establish the same, the prosecution proved the certified copies of the tickets
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Ex.PW-29/D and PW-29/E through R. Ramanathan, Security Supervisor,
Emirates Airlines (PW-29) before the ld. Trial Court. It is the case of the
prosecution that in the period between 08th January, 2015 to 28th February,
2015, the Appellant had visited Saudi Arabia and he had travelled illegally to
Pakistan to meet various terrorists.
34. It is also the case of the prosecution that the passport of the Appellant
did not reflect any arrival/departure visit stamp or visa of Pakistan and
therefore he had travelled to Pakistan on some fake documents. This
according to the prosecution as well as the ld. Trial Court is a highly
incriminating circumstance, inasmuch as the Appellant ought to have
explained the purpose of his visit to Pakistan. According to the ld. Trial Court
the fact that he travelled to Pakistan in such a clandestine manner, indicates
towards the existence of a conspiracy to commit a terrorist act. As per the ld.
Trial Court this circumstance of his illegal travel to Pakistan along with the
aforementioned circumstances of his alleged attempt to recruit Mr. Md.
Saquib Khan (PW-46) and the testimony of Mr. Syed Dil Nawaz (PW-4)
regarding his inflammatory speeches cumulatively establish on record that the
Appellant along with other co-convicts had conspired to commit a terrorist act
and in furtherance of the same, were committing acts which were preparatory,
thus within the meaning of Section 18 of the UAPA.
35. Ld. Counsel for the Appellant had countered the said assertion of
prosecution and argued that the tickets and documents, though proved by the
officials of Emirates Airlines, cannot prove that the Appellant travelled to
Pakistan. It is argued that in the said documents, passport number of the
Appellant is not mentioned and therefore, it cannot be established that the
tickets which have been proved on record belonged to the Appellant. The
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testimony of Sh. R. Ramanathan (PW-29), the Security Supervisor from
Emirates Airlines is reproduced hereinbelow for the sake of completeness:
“I have been serving Emirates Airlines since July, 2003
in different positions. During my employment with
Emirates Airlines, I initially served as Security Warden
in Dubai office during the period from 2003 to 2006
where I worked with Dr. Abdulla Al Hashimi, who is
now heading the group security Emirates Airlines and
Sh. Zack Zainal who is second in command. I have been
authorized to testify in this matter by the vice president
Sh. Mohd. Sarhan, who is looking after the operation of
Emirates in India and Nepal. I have brought the letter of
authority authorizing me to depose in this matter which
is retained on record and the same is now Ex.PW29/A
bearing the signature and seal of Sh. Mohd Sarhan at
point A. I identify the signature of Sh. Mohd. Sarhan as
he is serving in India these days and I am subordinate
to him.
On 05.01.2016, a notice u/s 91 Cr.PC authored by Sh.
Manish Chandra, Additional DCP, Special Cell and
addressed to the Manager of Emirates was received at
our Connaught Place office. The said notice was
forwarded to out Head Office located at Dubai for the
purpose of authenticating/verifying the information
sought in the said notice pertaining to accused Mohd.
Abdul Rehman. Pursuant thereto, a detailed
verification report/reply pertaining to the passport as
well as journey information of accused Mohd. Abdul
Rehman from Karachi to Dammam via Dubai with
Annexures i.e. two tickets showing the journey details
dt. 13.02.2015 & 15.02.2015 were received at our Delhi
Office which were further sent to Sh. Manishi
Chandra, Additional DCP, Special Cell. As per record,
the passenger/accused Mohd. Abdul Rehman had
initially booked the ticket on 09.02.2015 for the
journey to be taken on 13/14.02.2015 andSignature Not Verified
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subsequently, he got the journey date rescheduled on
11.02.2015 for the journey to be taken on
15/16.02.2015 from Karachi to Dammam via Dubai.
The notice u/s 91 Cr.PC received at our office in
Delhi is now Ex.PW29/B bearing the receipt stamp of
our office at point A. The original verification
report/letter received from Dubai authored by Dr.
Abdula Al Hashimi to the concerned official of Special
Cell is now Ex.PW29LC. The printouts of the tickets in
the name of passenger Mohd. Abdul Rehman for the
journeys date above are now Ex.PW29/D & Ex.EW29/E
bearing the stamp of our head office Dubai at point A
on both the tickets. Although the verification
report/letter has been authored in the name of Dr.
Abdulla Al Hashimi, but since he was not available on
the day of making the said letter so the letter was signed
on his behalf by second in command officer in Group
Security Office namely Sh. Zack Zainal at point A.
Similarly, on 22.02.2016, a notice u/s 91 Cr.PC
authored by Sh. Manishi Chandra, Additional DCP,
Special Cell and addressed to the Manager of Emirates
was received at our Connaught Place office. The said
notice was forwarded to our Head Office located at
Dubai for the purpose of authenticating/verifying the
information sought in the said notice pertaining to
accused Abdul Sami. Pursuant thereto, a detailed
verification report/reply pertaining to the passport as
well as journey information of accused Abdul Sami with
Annexure i.e. one ticket showing the journey details dt.
27.01.2014 was received at our Delhi Office which was
further sent to Sh. Manish Chandra, Additional DCP,
Special Cell. As per record, the passenger/accused
Abdul Sami booked the ticket on 25.01.2014 for the
journey to be taken on 27.01.2014 from Kolkata to
Dubai.
The notice u/s 91 Cr.PC is now Ex.PW29/F bearing
the receipt stamp of our office at point A. The original
verification report/letter received from Dubai authoredSignature Not Verified
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by Dr. Abdula Al Hashimi to the concerned official of
Special Cell is now Ex.PW29/G bearing the signature
of Dr. Abdulla Al Hashimi at point A. The printout of the
ticket in the name of passenger/accused Abdul Sami is
now Ex.PW29/H bearing the stamp of our Dubai office
at point A.
Again on 31.12.2015, a notice u/s 91 Cr.PC now
Ex.PW29/1 from Sh. Manishi Chandra, Additional DCP
was received at our Connaught Place Office and the
receipt was duly endorsed by one Ms. Sonia of our office
bearing her signature and seal of the office at point A.
Ms. Sonia has now left the services of Emirates and I
identify her signature at point A in the course of my
official office as we worked together. The said notice
was again forwarded to our Dubai Office from where a
detailed reply authored by Dr. Abdulla Al Hashimi was
received which on record is now Ex.PW29/J bearing
the signature of Dr. Abdulla Al Hashimi at point A. As
per record, the tickets in the name of passengers Abu
Sufian and Abdul Sami were booked for the journeys as
detailed in Ex.PW29/ J. The record further reveals that
the payment of the tickets appeared to have been made
in cash. Both the tickets in the name of Abu Sufian· and
Abdul Sami are on record and now Ex.PW22/K &
Ex.PW29/L bearing the stamp of our Dubai office at
point A. I am familiar with the signatures of Sh. Zack
Zainal as well as Dr. Abdulla Al Hashimi in the course
of my official duty as I worked with both of them since
the year 2003 to 2006 and also I am familiar with their
signatures and handwriting on the strength of our
correspondence with our office at Dubai. I have brought
my office records pertaining to the documents exhibited
above. Same are seen and returned.
(emphasis supplied)
36. The said witness (PW-29) in his testimony clearly states that pursuant
to a detailed verification of the Appellant’s passport as well as journey
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verification of the Appellant it was found that the Appellant had initially
booked the ticket from Karachi to Dammam via Dubai for 13/14th February,
2015 and later rescheduled it for 15/16th February, 2015 (Ex.PW-29/D and
PW-29/E). Further in the reply dated 06th January, 2016 (Ex. PW 29/C) Dr.
Abdullah Al- Hashmi, Div. Sr. Vice President – Group Security, Emirates
Airlines, clearly states that “Abdul Raheman/Mahammad Mr declared to be
holding an Indian Passport J2431458 (DOB: 15-AUG-1977) had travelled
from Karachi to Dammam via Dubai on flights EK503/15-FEB-2015 &
EK823/16-FEB-2015 respectively using a one-way re-issued ticket 176
8914316088 (PNR: JQQVK2)”. Also, the fact that the Appellant had no
arrival/departure visit stamps or visa of Pakistan on his passport, makes the
purpose of the Appellant’s travel to Pakistan highly suspicious. From the
aforesaid testimony and the evidence on record it can be clearly established
that the Appellant had travelled to Pakistan.
37. Further, circumstances relied by the prosecution as well as by the ld.
Trial Court is the alleged connection between the Appellant and Co-Convict
No.1- Mohd. Asif. For the said purpose, reliance was placed on the testimony
of Mr. Tajir Pasha (PW-51), who as per the case of the prosecution on 11th
September, 2015 had made the Appellant speak with Co-Convict No.1 on his
phone. The conversation had been recorded, however, the same was discarded
by the ld. Trial Court in absence of sanction under Section 46 of the UAPA.
However, the fact that the call was made is being relied upon to establish that
the Appellant was in touch with Co-Convict No.1. This witness when
examined before the ld. Trial Court was declared hostile as he failed to
identify the voice of the Appellant on the phone or that of Co-Convict No.1.
The said witness also failed to identify the Co-Convict No.1 before the ld.
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Trial Court.
38. A perusal of the testimony of Mr. Tajir Pasha (PW-51) shows that he
denied the case of the prosecution. However, the case of prosecution is proved
on the basis of the FSL Report (Ex PW-34/A) which confirms the voices of
the Appellant and Co-Convict No.1 in the call recording of 11th September,
2015. It establishes that Appellant and Co-Convict No.1 were connected and
had communication as stated by PW-51 in his witness statement.
39. The final circumstance which has been sought to be read against the
Appellant is the data recovered from the mobile phones and other electronic
devices seized from him. As per the case of the prosecution there were many
audio files containing hate speeches/anti-national speeches, hate videos and
pictures of political leaders including the Prime Minister of India and other
anti-national/hate videos of Kashmiri people. During the course of the hearing
the prosecution placed on record a status report dated 24th September, 2024
with regard to the data recovered from the aforesaid devices along with their
transcripts. Amongst the transcripts of audio files placed on record, a perusal
of the same would reflect that they are inflammatory in nature. Admittedly,
these speeches are not made by the present Appellant.
40. In the present case the ld. Trial Court has convicted the Appellant for
commission of preparatory acts within the meaning under Section 18 of the
UAPA.
41. It is now relevant to set out Section 18 and 18-B of the UAPA. The said
provisions read as under:
“18. Punishment for conspiracy, etc.–Whoever
conspires or attempts to commit, or advocates, abets,
advises or 3[incites, directly or knowingly facilitates] the
commission of, a terrorist act or any act preparatory toSignature Not Verified
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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.
xxx xxx xxx
18B. Punishment for recruiting of any person or
persons for terrorist act.–Whoever recruits or causes to
be recruited any person or persons for 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.”
42. Section 15 of the UAPA which provides the definition of a ‘Terrorist
act’ is reproduced hereinbelow:
“[15. Terrorist act.– 4[(1)] Whoever does any
act with intent to threaten or likely to threaten the unity,
integrity, security 5[, economic 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) loss of, or damage to, or destruction of,
property; or
(iii) disruption of any supplies or services essential
to the life of the community in India or in any foreign
country; orSignature Not Verified
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[(iiia) damage to, the monetary stability of India
by way of production or smuggling or circulation of high
quality counterfeit Indian paper currency, coin or of any
other material; or]
(iv) damage or destruction of any property in India
or in a foreign country 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
(b) overawes by means of criminal force or the show of
criminal force or attempts to do so or causes death of any
public functionary or attempts to cause death of any
public functionary; or
(c) detains, kidnaps or abducts any person and threatens
to kill or injure such person or does any other act in order
to compel the Government of India, any State
Government or the Government of a foreign country or
6[an international or inter-governmental organisation or
any other person to do or abstain from doing any act; or]
commits a terrorist act.
[Explanation.–For the purpose of this sub-
section,–
(a) “public functionary” means the constitutional
authorities or any other functionary notified in the
Official Gazette by the Central Government as public
functionary;
(b) “high quality counterfeit Indian currency” means the
counterfeit currency as may be declared after
examination by an authorised or notified forensic
authority that such currency imitates or compromises
with the key security features as specified in the Third
Schedule.]
[(2) The terrorist act includes an act which
constitutes an offence within the scope of, and as defined
in any of the treaties specified in the Second Schedule.]”
43. The definition of ‘Terrorist act’ under Section 15 of UAPA clearly
includes the expressions “with intent to strike terror”, ” by any other means
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of whatever nature to cause or likely to cause”. Such an expression would not
be linked only to an immediate Terrorist act but the same would even include
acts, which could be under contemplation for years together and may be given
effect to after several years. The planning to give effect to terrorist acts could
also extend over years and under Section 18 of the UAPA, the law aims to
address such preparation for terrorist acts, even in cases where a specific
terrorist act has not been identified. It is common knowledge that terrorist
organizations like AQIS function in an extremely secretive manner and
persons who are part of AQIS on most occasions, do not leave any trail of the
evidence linking them to the organization.
44. As per the case of the prosecution, the aforesaid circumstances show
that the Appellant along with the other co-convicts were committing acts
which were preparatory in nature in order to commit a terrorist act. Although,
there is nothing on record to show that any particular act or object was in
contemplation, however, it is the case of the prosecution that these
circumstances if taken cumulatively would demonstrate that the Appellant
was preparing to commit an act, which would otherwise disturb the unity,
integrity, peace and tranquility of India.
45. It was argued that the aforesaid circumstances especially the material
seized from the Appellant would show that he professed a kind of ideology
which would come within the meaning of unlawful activity as it causes or
intents to cause any dissatisfaction towards the country or disrupting or intent
to disrupt the territorial integrity and sovereignty of the Country. Suffice to
say that the Appellant in the present case has not been tried or convicted for
commission of unlawful activities but for offences punishable under Sections
18 and 18B of the UAPA, which provides for punishment for conspiracy and
Signature Not Verified
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for recruitment for commission of terrorist act, which stands established from
the evidence on record.
46. An analysis of the evidence on record including the testimony of
witnesses, speeches given by the Appellant and the material which was found
on his digital devices establishes the following facts:
i. The Appellant was associated with the Al-Qaida-specifically the AQIS.
He had close connections with Mohd. Asif the -Co-Convict No. 1 who
had enabled withdrawal of money from bank accounts and booking of
tickets for other co-convicts for travel to Dubai and, thereafter, to
Pakistan. Both co-accused Mohd. Sharjeel Akhtar and Mohd. Rehan
have in fact absconded.
ii. The Appellant was also closely associated with Abdul Saami, Co-
Convict No.3, which has been proved by one of the witnesses (PW-
4). The Appellant had attempted to recruit PW-4 also on the lines of
Abdul Saami to go to Saudi Arabia.
iii. The telephone calls between the Appellant and Mohd. Asif have been
established through the CDR records. The Appellant had a direct link
with Mohd. Asif.
iv. The speeches which were inciting hatred including against political
leaders such as the Prime Minster were recovered from his mobile
devices. The data recovered from the devices of the Appellant include
speeches for taking revenge in Gujarat and Orissa and other places. The
material which has been found is venomous towards the Country, its
politicians in general and specifically certain political leaders.
v. The evidence given by PW-4 clearly shows that the Appellant’s
speeches were provocative and would exhort people toward Jihad.
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Evidence has come on record that the Appellant was also collecting
funds from Masjid and other religious places.
vi. The Appellant was recruiting young boys under the garb of education
and sending them to foreign countries including Saudia Arabia and
Dubai.
vii. The testimony of the witnesses from Emirates Airlines proves beyond
any doubt that the Appellant had covertly travelled to Karachi. There
was no stamp on the Appellant’s passport of either arrival or departure
in Pakistan which shows that either the visit was to be kept under wraps
as part of the larger conspiracy or he had travelled to Pakistan on fake
documents.
47. It is the settled position in law that conspiracies are not easily detectable
as they are hatched in the dark and not in the open. The evidence could come
in trickles but in proving conspiracy such evidence forms part of a large
jigsaw puzzle. This position has been settled by the Supreme Court in Nazir
Khan & Ors. v. State of Delhi [(2003) 8 SCC 461] where the Supreme Court
has observed as under:
“20. As noted above, the essential ingredient of the offence of
criminal conspiracy is the agreement to commit an offence.
In a case where the agreement is for accomplishment of an
act which by itself constitutes an offence, then in that event
no overt act is necessary to be proved by the prosecution
because in such a situation, criminal conspiracy is
established by proving such an agreement. Where the
conspiracy alleged is with regard to commission of a serious
crime of the nature as contemplated in Section 120-B read
with the proviso to sub-section (2) of Section 120-A, then in
that event mere proof of an agreement between the accused
for commission of such a crime alone is enough to bring
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overt act by the accused or by any one of them would not be
necessary. The provisions, in such a situation, do not require
that each and every person who is a party to the conspiracy
must do some overt act towards the fulfilment of the object of
conspiracy, the essential ingredient being an agreement
between the conspirators to commit the crime and if these
requirements and ingredients are established, the act would
fall within the trappings of the provisions contained in
Section 120-B. (See: Suresh Chandra Bahri V. State of
Bihar.)
21. Conspiracies are not hatched in the open, by their
nature, they are secretly planned, they can be proved even
by circumstantial evidence, the lack of direct evidence
relating to conspiracy has no consequence. (See: E.K.
Chandrasenan V. State of Kerala.) 22. In Kehar Singh v.
State (Delhi Admn.)® (AIR at p. 1954) this Court observed:
(SCC pp. 732-33, para 275)
“275. Generally, a conspiracy is hatched in secrecy
and it may be difficult to adduce direct evidence of the
same. The prosecution will often rely on evidence of
acts of various parties to infer that they were f done in
reference to their common intention. The prosecution
will also more often rely upon circumstantial evidence.
The conspiracy can be undoubtedly proved by such
evidence direct or circumstantial. But the court must
enquire whether the two persons are independently
pursuing the same end or they have come together in
the pursuit of the unlawful object. The former does not
render them conspirators, but the latter does. It is,
however, essential that the offence of conspiracy
requires some kind of physical manifestation of
agreement. The express agreement, however, need not
be proved. Nor actual meeting of two persons is
necessary. Nor it is necessary to prove the actual
words of communication. The evidence as to
transmission of thoughts sharing the unlawful design
may be sufficient.”
Conspiracy can be proved by circumstances and other
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materials (See: State of Bihar v. Paramhans Yadav,
PatLRJ p.709, para 35.)
[To establish a charge of conspiracy knowledge about
indulgence in either an illegal act or a legal act by
illegal means is necessary. In some cases, intent of
unlawful use being made of the goods or services in
question may be inferred from the knowledge itself.
This apart, the prosecution has not to establish that a
particular unlawful use was intended, so long as the
goods or service in question could not be put to any
lawful use. Finally, when the ultimate offence consists
of a chain of actions, it would not be necessary for the
prosecution to establish, to bring home the charge of
conspiracy, that each of the conspirators had the
knowledge of what the collaborator would do, so long
as it is known that the collaborator would put the goods
or service to an unlawful use. (emphasis in original)
(See: State of Maharashtra v. Som Nath Thapa, SCC p.
668, para 24.)”
48. Moreover, speeches which are given to brainwash innocent youth
coupled with attempts to recruit them for committing unlawful and illegal acts
against the Country cannot be completely washed away on the ground that no
specific terrorist act has been committed. The Hon’ble Supreme Court in State
of Karnataka v. Dr. Praveen Bhai Thogadia [2004 SCC OnLine SC 411],
had observed as under:
“8. The High Court in our view should not have
glossed over these basic requirements, by saying that
the people of the locality where the meeting was to be
organised were sensible and not fickle minded to be
swayed by the presence of any person in their amidst
or by his speeches. Such presumptive and wishful
approaches at times may do greater damage than any
real benefit to individual rights as also the need to
protect and preserve law and order. The Court was not
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official concerned. Unless the order passed is patently
illegal and without jurisdiction or with ulterior motives
and on extraneous considerations of political
victimisation of those in power, normally interference
should be the exception and not the rule. The Court
cannot in such matters substitute its view for that of the
competent authority.
9. Our country is the world’s most heterogeneous
society, with rich heritage and our Constitution is
committed to high ideas of socialism, secularism and the
integrity of the nation. As is well known, several races
have converged in this sub-continent and they carried
with them their own cultures, languages, religions and
customs affording positive recognition to the noble and
ideal way of life – ‘Unity in Diversity’. Though these
diversities created problems, in early days, they were
mostly solved on the basis of human approaches and
harmonious reconciliation of differences, usefully and
peacefully. That is how secularism has come to be
treated as a part of fundamental law, and an
unalignable segment of the basic structure of the
country’s political system. As noted in S.R. Bommai v.
Union of India etc. (1994 (3) SCC 1) freedom of religion
is granted to all persons of India. Therefore, from the
point of view of the State, religion, faith or belief of a
particular person has no place and given no scope for
imposition on individual citizen. Unfortunately, of late
vested interests fanning religious fundamentalism of all
kinds vying with each other are attempting to subject the
constitutional machinaries of the State to great stress
and strain with certain quaint ideas of religious
priorities, to promote their own selfish ends, undettered
and unmindful of the disharmony it may ultimately bring
about and even undermine national integration
achieved with much difficulties and laudable
determination of those strong spirited savants of yester
years. Religion cannot be mixed with secular activities
of the State and fundamentalism of any kind cannot beSignature Not Verified
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permitted to masquerade as political philosophies to the
detriment of the larger interest of society and basic
requirement of a welfare State. Religion sans spiritual
values may even be perilous and bring about chaos and
anarchy all around. It is, therefore, imperative that if
any individual or group of persons, by their action or
caustic and inflammatory speech are bent upon sowing
seed of mutual hatred, and their proposed activities are
likely to create disharmony and disturb equilibrium,
sacrificing public peace and tranquility, strong action,
and more so preventive actions are essentially and
vitally needed to be taken. Any speech or action which
would result in ostracization of communal harmony
would destroy all those high values which the
Constitution aims at. Welfare of the people is the
ultimate goal of all laws, and State action and above
all the Constitution. They have one common object, that
is to promote well being and larger interest of the
society as a whole and not of any individual or
particular groups carrying any brand names. It is
inconceivable that there can be social well being
without communal harmony, love for each other and
hatred for none. The chore of religion based upon
spiritual values, which the Vedas, Upanishad and
Puranas were said to reveal to mankind seem to be –
“Love others, serve others, help ever, hurt never” and
“Sarvae Jana Sukhino Bhavantoo”. Oneupship in the
name of religion, whichever it be or at whomsoever’s
instance it be, would render constitutional designs
countermanded and chaos, claiming its heavy toll on
society and humanity as a whole, may be the inevitable
evil consequences, whereof.
(emphasis supplied)
49. It is a matter of public knowledge that terrorist organizations do not
operate merely though established channels but most of the operations of such
organizations are covert, stealthy, and secretive. Investigating agencies
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always find it challenging to unearth evidence. In the present case there is
sufficient evidence to show and link the Appellant with the main accused
Mohd. Asif who was clearly also found to obtain four passports and visited
Pakistan. The Appellant was also in close connection with Co-Convict No. 3.
The various Co-Accused/Co-Convicts are clearly a part of a larger network
involved in giving inflammatory speeches, disseminating material, having
links with Pakistan based organizations, travelling to Pakistan for secretive
meetings, recruiting persons for terrorist acts, collecting funds to help such
travels and other activities instigating hatred against the Country and its
political leaders etc.
50. A perusal of the definition of the “Terrorist act” under UAPA shows
that the said definition includes any acts which intend to threaten or are likely
to threaten the unity, integrity, security, or sovereignty of India. The definition
is wide enough to include indulging in conspiracy with terrorist organizations
and associated with persons who are rendering support to terrorist
organization. This position has been clearly established in the decision of
People’s Union For Civil Liberties and Anr. vs. Union of India [(2004) 9
SCC 580], where the Hon’ble Supreme Court of India held us under:
“4. In deciding the point of legislative competence, it is
necessary to understand the contextual backdrop that led to
the enactment of POTA, which aims to combat terrorism.
Terrorism has become the most worrying feature of
contemporary life. Though violent behaviour is not new, the
present-day “terrorism” in its full incarnation has obtained
a different character and poses extraordinary challenges to
the civilised world. The basic edifices of a modern State, like
democracy, State security, rule of law, sovereignty and
integrity, basic human rights etc. are under the attack of
terrorism. Though the phenomenon of terrorism is complex,Signature Not Verified
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a “terrorist act” is easily identifiable when it does occur. The
core meaning of the term is clear even if its exact frontiers
are not. That is why the anti-terrorist statutes — the earlier
Terrorism and Disruptive Activities (Prevention) Act, 1987
(TADA) and now POTA do not define “terrorism” but only
“terrorist acts”. (See Hitendra Vishnu Thakur v. State of
Maharashtra [(1994) 4 SCC 602 : 1994 SCC (Cri) 1087] .)
This extract is taken from People’s Union for Civil
5. Paul Wilkinson, an authority on terrorism-related works,
culled out five major characteristics of terrorism. They are:
1. It is premeditated and aims to create a climate of
extreme fear or terror.
2. It is directed at a wider audience or target than the
immediate victims of violence.
3. It inherently involves attacks on random and symbolic
targets, including civilians.
4. The acts of violence committed are seen by the society
in which they occur as extra-normal, in literal sense,
that they breach the social norms, thus causing a sense
of outrage.
5. Terrorism is used to influence political behaviour in
some way — for example to force opponents into
conceding some or all of the perpetrators’ demands, to
provoke an overreaction, to serve as a catalyst for more
general conflict, or to publicise a political cause.
6. In all acts of terrorism, it is mainly the psychological
element that distinguishes it from other political offences,
which are invariably accompanied with violence and
disorder. Fear is induced not merely by making civilians the
direct targets of violence but also by exposing them to a sense
of insecurity. It is in this context that this Court held in Mohd.
Iqbal M. Shaikh v. State of Maharashtra [(1998) 4 SCC 494
: 1998 SCC (Cri) 1064] that: (SCC p. 504, para 7)
“[I]t is not possible to give a precise definition of
terrorism or to lay down what constitutes terrorism.
But it may be possible to describe it as use of violence
when its most important result is not merely the
physical and mental damage of the victim but the
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prolonged psychological effect it produces or has the
potential of producing on the society as a whole if the
object of the activity is to disturb harmony of the
society or to terrorize people and the society with a
view to disturb the even tempo, tranquillity of the
society, and a sense of fear and insecurity is created
in the minds of a section of the society at large, then
it will, undoubtedly, be held to be a terrorist act.”
7. Our country has been the victim of an undeclared war
by the epicentres of terrorism with the aid of well-knit
and resourceful terrorist organisations engaged in
terrorist activities in different States such as Jammu &
Kashmir, North-East States, Delhi, West Bengal,
Maharashtra, Gujarat, Tamil Nadu and Andhra
Pradesh. The learned Attorney General placed material
to point out that the year 2002 witnessed 4038 terrorist-
related violent incidents in J&K in which 1008 civilians
and 453 security personnel were killed. The number of
terrorists killed in 2002 was 1707 out of which 508 were
foreigners. In the year 2001 there were as many as 28
suicide attacks while there were over 10 suicide attacks
in 2002 in which innocent persons and a large number
of women and children were killed. The major terrorist
incidents in the recent past includes attack on the Indian
Parliament on 13-12-2001, attack on Jammu &
Kashmir Assembly on 1-10-2001, attack on Akshardham
Temple on 24-9-2002, attack on US Information Center
at Kolkata on 22-1-2002, Srinagar CRPF Camp attack
on 22-11-2002, IED blast near Jawahar Tunnel on 23-
11-2002, attack on Raghunath Mandir on 24-11-2002,
bus bomb blast at Ghatkopar in Mumbai on 2-12-2002,
attack on villagers in Nadimarg in Pulwama district in
Jammu & Kashmir on the night of 23-3-2003/24-3-2003
etc. There were attacks in Red Fort and on several
government installations, security forces’ camps and in
public places. Gujarat witnessed gruesome carnage of
innocent people by unleashing unprecedented orgy of
terror. People in Bihar, Andhra Pradesh and
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Maharashtra etc. have also experienced the terror
trauma. The latest addition to this long list of terror are
the recent twin blasts at Mumbai that claimed about 50
lives. It is not necessary to swell this opinion by
narrating all the sad episodes of terrorist activities that
the country has witnessed.
8. All these terrorist strikes have certain common
features. They could be very broadly grouped into three:
1. Attack on the institution of democracy, which is
the very basis of our country (by attacking
Parliament, Legislative Assembly etc.). And the
attack on economic system by targeting economic
nerve centres.
2. Attack on symbols of national pride and on
security/strategic installations (e.g. Red Fort,
military installations and camps, radio stations
etc.).
3. Attack on civilians to generate terror and fear
psychosis among the general populace. The attack
at worshipping places to injure sentiments and to
whip communal passions. These are designed to
position the people against the Government by
creating a feeling of insecurity.
9. Terrorist acts are meant to destabilise the nation by
challenging its sovereignty and integrity, to raze the
constitutional principles that we hold dear, to create a
psyche of fear and anarchism among common people,
to tear apart the secular fabric, to overthrow
democratically elected government, to promote
prejudice and bigotry, to demoralise the security
forces, to thwart the economic progress and
development and so on. This cannot be equated with a
usual law and order problem within a State. On the
other hand, it is inter-State, international or cross-
border in character. Fight against the overt and covert
acts of terrorism is not a regular criminal justice
endeavour. Rather, it is defence of our nation and its
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citizens. It is a challenge to the whole nation and
invisible force of Indianness that binds this great nation
together. Therefore, terrorism is a new challenge for
law enforcement. By indulging in terrorist activities
organised groups or individuals, trained, inspired and
supported by fundamentalists and anti-Indian elements
are trying to destabilise the country. This new breed of
menace was hitherto unheard of. Terrorism is definitely
a criminal act, but it is much more than mere
criminality. Today the Government is charged with the
duty of protecting the unity, integrity, secularism and
sovereignty of India from terrorists, both from outside
and within the borders. To face terrorism we need new
approaches, techniques, weapons, expertise and of
course new laws. In the abovesaid circumstances
Parliament felt that a new anti-terrorism law is
necessary for a better future. This parliamentary resolve
is epitomised in POTA.
10. The terrorist threat that we are facing is now on an
unprecedented global scale. Terrorism has become a
global threat with global effects. It has become a
challenge to the whole community of civilised nations.
Terrorist activities in one country may take on a
transnational character, carrying out attacks across one
border, receiving funding from private parties or a
Government across another and procuring arms from
multiple sources. Terrorism in a single country can
readily become a threat to regional peace and security
owing to its spillover effects. It is, therefore, difficult in
the present context to draw sharp distinctions between
domestic and international terrorism. Many happenings
in the recent past caused the international community to
focus on the issue of terrorism with renewed intensity.
The Security Council unanimously passed Resolutions
Nos. 1368 (2001) and 1373 (2001); the General
Assembly adopted Resolution No. 56/1 by consensus,
and convened a special session. All these resolutions
and declarations inter alia call upon member States to
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take necessary steps to “prevent and suppress terrorist
acts” and also to “prevent and suppress the financing
of terrorist acts”. India is a party to all these resolves.
Anti-terrorism activities on the global level are mainly
carried out through bilateral and multilateral
cooperation among nations. It has thus become our
international obligation also to pass necessary laws to
fight terrorism.
11. The attempts by the State to prevent terrorism
should be based on well-established legal principles.
The “Report of the Policy Working Group of the United
Nations on Terrorism” urged the global community to
concentrate on a triple strategy to fight against
terrorism. They are:
(a) dissuade disaffected groups from embracing
terrorism;
(b) deny groups or individuals the means to carry
out acts of terrorism; and
(c) sustain broad-based international cooperation
in the struggle against terrorism.
12. Therefore, the anti-terrorism laws should be
capable of dissuading individuals or groups from
resorting to terrorism, denying the opportunities for the
commission of acts of terrorism by creating inhospitable
environments for terrorism and also leading the
struggle against terrorism. Anti-terrorism law is not
only a penal statute but also focuses on pre-emptive
rather than defensive State action. At the same time, in
the light of global terrorist threats, collective global
action is necessary. Lord Woolf, C.J. in A, X and
Y v. Secy. of the State for the Home Deptt. [2002 EWCA
Civ 1502] has pointed out that:
“… Where international terrorists are operating
globally and committing acts designed to terrorize
the population in one country, that can have
implications which threaten the life of another. This
is why a collective approach to terrorism is
important.”
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51. The amendments to UAPA in the year 2008 to include Terrorist act has
a wider ambit in light of the definition of terrorism. The same has been
analysed by the Division Bench of this Court in Asif Iqbal Tanha v. State of
NCT of Delhi [(2021)SCC OnlineDel 3253] where the Court has given a very
wide and detailed interpretation of Section 15 of UAPA. In order to establish
conspiracy for terrorist activity, identification or existence of a specific act of
terror or a specific terrorist attack is not required for punishment under Section
18 of the UAPA.
52. In conspiracies of this nature specific covert acts would not be required
but secretive and clandestine support to declared terrorist organisations would
also be sufficient. The evidence and the testimonies which have been recorded
in the present case clearly disclose association with terrorist organisations for
commission of conspiracy for committing a terrorist act as defined under
Section 15 of the UAPA.
53. The Trial Court has rightly convicted the Appellant. The said
conviction does not warrant any interference.
54. The appeal is, accordingly, dismissed.
55. All pending applications, if any, are also disposed of, accordingly.
JUSTICE PRATHIBA M. SINGH
JUDGE
JUSTICE AMIT SHARMA
JUDGE
DECEMBER 23, 2024
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