Delhi District Court
By This Order I Shall Dispose Off ... vs . on 2 May, 2011
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IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
SC NO:36/09
FIR NO: 2/09
PS SPECIAL CELL
U/s 17/18/19/20 of The Unlawful Activities Act
State
Vs.
1.Chongtham Manglemajao Singh @ K.K.Nganba @Chaoba@Koi@Irabat Nagriyambam Rattan Singh 2. Naorem Amumacha Singh @ Yambung 3. Chongtham Ibomacha Singh 4. ORDER ON CHARGE:
1. By this order I shall dispose off submissions on the point of charge.
2. I have heard arguments at length putforth by Ld. Spl. PP Sh. Rajive Mohan for State and Ld. Counsels Sh. Ghanshyam Sharma on behalf of accused No.1 and 4 and Sh. Sandeep Chandra and Sand Tyagi advocate for accused No. 2 & 3.
3. Factual matrix of this case in brief is that on 17.01.2009, on the basis of an input provided by police officials of Manipur Police. a team led by Inspector S.K. Giri, New Delhi Range, Special Cell formed a team consisted of Two Inspectors , sub inspectors, constables and head constables. At around contd/........
27:00 AM they got a specific information from a secret informer that terrorists of Kanjalipak Communist Party (KCP) will assemble at fourth floor of house no. 688, Gali No.7, Govind Puri Delhi. A raiding party reached the spot at 9:30 AM and raided the address alongwith secret informer. The door was opened by A1 and apart from him A2 to A4 were also apprehended. The information was sent to ACP Sh Sanjeev Kumar Yadav. As per chargesheet A4 was found possessing Rs. 24,000/ cash . Disclosure statements of all the accused were recorded. A 3 was found possessing two books and a ICard of some Media House at Manipur. A1 was found possessing six spiral note books containing some account work. Rukka was sent. FIR U/s 17,18,19 & 20 Unlawful Activities (Prevention) Act ( hereinafter referred to as "Act:") was recorded. During the course of investigation the intercepted transcript of mobile phone conversation was produced. Voice samples were sent to FSL and report has been received and placed on record . Statement of witnesses both in Delhi and Manipur were recorded followed by filing of charge sheet in hand.
contd/........
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4. While opening his arguments Ld. APP submitted that all the four accused deserves to be charged under all the offences of the Act in so far as not only they are active members of banned Terrorist Organisation KCP as per Schedule under the Act of Item No.6 but also they were found possessing incriminating materials.
5. It would be handy in case the offences complaint against all the accused is reproduced for ready reference for The Unlawful Activities (Prevention) Act 194 Section 17 Raising funds for terrorist act Whoever, in India or in a foreign country, directly or indirectly, raises or collects funds or provides funds to any person or persons or attempts to provide funds to any person or persons knowing that such funds are likely to be used by such person or persons to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such 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.
Section 18 Punishment for conspiracy etc. Punishment for conspiracy etc Whoever conspires or attempts to commit, or advocates, abets , advises or (incites, directs or knowingly facilitates) for commission of, terrorist contd/........
4act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. Section 19 Punishment for harbouring etc. Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be less than three years but which may extent to imprisonment for life, and shall also be liable to fine.
Section 20 Punishment for being member of terrorist gang or organisation Any person who is a member of a terrorist gang or a terrorist organisation , which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
4. Having gone through the above statutory provisions it would be appropriate in case the evidence collected and relied by the prosecution against each of the accused is sifted and weighed to ascertain whether a prima facie case qua framing of charge is made out against them or not.
5. Although it is a settled legal preposition that charge can be framed even on suspicion of involvement but in the under mentioned case law Hon'ble contd/........
5Supreme Court ruled that mere suspicion is not sufficient but it has to be grave suspicion.
6. In case titled Dilawar Balu Kurane Vs. State of Maharashtra 2002 Supreme Court Cases (Crl.)310 it has been observed by Hon'ble Supreme Court that :
"In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceedings with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicision but not grave suspicion, against the accused , he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge can not act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
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7. Now I shall endeavour to sift and weigh the material qua each individual accused to ascertain if prima facie case for framing of charge is made out. Accused No.1 Chongtham Manglemajao Singh @ K.K.Nganba
8. @Chaoba@Koi@Irabat As against this accused the first evidence alleged is reocvery of six hand written spiral diaries purportedly containing certain entries qua Income and Expenditure from 2008 onwards. Apart from containing entries of expenditure on routine items food items, specticals medicines etc., as per Ld. APP that there are several entries which are in code language viz. purchase of "pen" for Rs. 30,000/ Here pen is said to be "gun" under the code language. Apart from this the diary is said to be containing certain handwritten text by this accused asking editors of print and electronic media for seeking financial assistance for people of Kangleipak Communist to regain independence. Apart from this another material relied is photocopy of a letter purportedly written by this accused to Hon'ble Governor of Manipur demanding commission of 5% out of the State Budget, 2% from Government contracts, 1/12 % from state employees contd/........
7salary for his organisation KCP . However only photocopy has been filed and original was not seized or sent to FSL for handwriting comparison. Other than above, the accused , who was under the surveillance was found using telephone nos. 9007150453 & 9007150462. Transcript of the conversation recorded prior to the arrest shows that there is talk of demand of money from Govt. Departments in Manipur and to start fresh recruitment of volunteers. Also an Icard of a purported media house was recovered from him which as per the statement of witnesses was obtained forcibly under gun point.
9. In my considered vieew, as against accused No.1 the above material prima facie shows that he is liable to be charged U/s 17,18 and 20 of the Act. However no charge under Section19 is made out against him. Accused No.2 Nagriyambam Rattan Singh
10. As regards this accused documents are available on record to prima facie show that he took on rent the flat in question where he allegedly harboured accused no.1 and ors. It is also alleged that the phone which was used by A1 for the said terrorism related activities was obtained under his name contd/........
8and particulars. With these circumstances prosecution is desirous of framing charge under all the offences against him. It is argued on behalf of this accused that he is brother in law of A1 . He had come to Delhi for treatment of his ill wife and for this reason alone he not only gave his correct address but also shared his ID with the landlord who filled tenant verification form and submitted it with SHO Kalkaji. As regards the phone issued in his name it is claimed that A1 might have misused his photo . I am not satisfied with the reasoning given from the side of accused. Although it is admitted that there is no specific evidence that is being an active/passive member of KCP and it might be his case that he came to Delhi for his wife is treatment but the circumstance that he was harbouring A1 who is self styled General Secretary of KCP a banned terrorist organisation and obtained a prepaid mobile phone connection in his name and gave it for use to A1 shows that he is chargable with offences under Section 18 & 19 of the Act and not under 17 and 20 of the Act. Accused No.3 Naorem Amumacha Singh @ Yambung
11. Before sifting the evidence qua this accused, it would be appropriate to contd/........
9mention the two latest land mark judgments of Hon'ble Supreme Court on the issue of membership of a terrorist organisation. State of Kerala Vs. Raneev 2011 (1) DLT 1 SC while dealing with a case where accused was alleged to be a member of a Terrorist Organisation becaue he was carrying a book titled "Jihad" Hon'ble Supreme Court observed :
"the book tiled "Jihad" , said to have been found in his house was a Malayam translation of a book written in urdu in 1927 by a well known and respective religious scholar, Maulana Sayyid Abul Ala Mandoodi and has been in circulation for around 83 years, is available in many book shops. "
In case titled Arup Bhuyan Vs. State of Asam 2011 (1) ACC CA No.889 of 2007 while hearing appeal of a convict under Section 3 (5) of TADA for his being a member of a terrorist organisation while relying on two Judgments passed by US Supreme Court and also case of Kedar Nath Vs. State of Bihar AIR 1962 SCC 955 it was observed by Hon'ble Supreme Court that:
"In our opinion, Section 3 (5) can not be read literally otherwise it will violate Articles 19 and 21 of the Constitution. It as to be read in the light of our observations made above.
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Hence, mere membership of a banned organisation will not make a person a criminal unless he resorts to violence or incites people to violence or creates public disorder by violence or incitement to violence."
11.Likewise in the case in hand as well accused no. 3 was found possessing two printed books. Admittedly there is nothing on record to show that either of the book is banned in the State of Manipur, Delhi or any where in our country. One of the books is qua history of Manipur while the other one is qua Ideology of insurgent groups in Manipur. Another circumstance shown against him is recovery of an Icard from his body purportedly of some Media House in Manipur said to h ave been obtained at Gun point as per statement of witnesses. Although possession of the above two printed books is not a circumstance which can be relied to indicate commission of offences sought to be charged by prosecution against him but the Icard and the manner in which it was procured with the help of KPC Caders is indicative of Commission of offence punishable under Section 18 & 20 of the Act. However there is nothing to show even prima facie commission of offence under Section 17 and 19 against him.
contd/........
11Accused no. 4 Chongtham Ibomacha Singh
12. The only circumstance/evidence relied by prosecution against him is recovery of Rs. 25,000/ in cash. He is admittedly younger brother of A1. Although telephonic conversation and transcript contains some conversation of his, but as per Ld. APP Conversations qua him does not contain any specific incriminating material. Now the only thing which remains against him is recovery of cash from his pocket. He is claimed to be a member of KCP .
13.While discussing the issue of "membership" of a terrorist organisation in Indra Dass Vs. State of Assam I (2011)DLT Cr. 596 Hon'ble Supreme Court observed:
" In Arup Bhuyan's case (supra) we have stated that mere membership of a banned organisation can not incriminate a person unless he is proved to have resorted to acts of violence or incited people to imminent violence, or does an act intended to create disorder or disturbance of public peace by resort to imminent violence. In the present case, even assuming that the appellant was a member of ULFA which is a banned organisation, there is no evidence to show that he did acts of the nature above mentioned. Thus, even if he was a member of ULFA it has not been proved that he was an active contd/........12
member and not merely a passive member. Hence the decision in Arup Bhuyan's case (supra) squarely applies in this case...............
It has been submitted by the learned Counsel for the Government before TADA Court that under many laws mere membership of an organisation is illegal e.g. Section 3 (5) of Terrorists and Disruptive Activities,1989, Section 10 of the Unlawful Activities (Prevention) Act 1967, etc. In our opinion these statutory provisions can not be read in isolation, but have to be read in consonance with the Fundamental Rights guaranteed by our Constitution...... Similarly, we are of the opinion that the provisions in various statues i.e. 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) which on their plain language make mere membership of a banned organization criminal have to be read down and we have to depart from the literal rule of interpretation in such cases otherwise these provisions will become unconstitutional violative of Articles 19 and 21 of the Constitution. It is true that ordinarily we should follow the literal rule of interpretation while construing a statutory provision, but if the literal interpretation makes the provision unconstitutional we can depart from it so that the provision becomes constitutional....
Had there been no Constitution having Fundamental Rights in it then of course a plain and literal meaning could be given to Section 3 (5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act . But since there is a Constitution in our country providing for Democracy and Fundamental Rights we can not give these statutory provisions such a meaning as that would make them unconstitutional."
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14.It is argued on behalf of accused that he has admittedly clean antecedents He had brought the seized money from Manipur for his own medical treatment at AIIMS and he had been under treatment at Manipur as well. The meager sum of Rs.25,000/ was also brought to financially assist his sister who is critical patient of paralysis and had been attending AIIMS since 2000 onwards. It is also argued that no incriminating material even in the telephonic conversation transcript is available against him. It is conceded by Ld. APP that apart from his own disclosure which is hit by Section 25 of the Evidence Act there is nothing on record to show that Rs. 25,000/ cash was procured out of any terrorist act and was supposed to be used for that purpose.
15.In the light of aforesaid case laws and the material ,prosecution has not been able to make out even a prima facie case for framing of charge against him . As such accused Chongtham Ibomacha Singh is accordingly discharged in this matter. He be released from J/c henceforth if not wanted in any other case.
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16.Separate charges be framed against the accused no.1. Chongtham Manglemajao Singh @ K.K.Nganba @ Chaoba @Koi@Irabat 2. Nagriyambam Rattan Singh 3.Naorem Amumacha Singh @ Yambung accordingly in terms of the above order.
(SURINDER S. RATHI) ASJ02/CENTRAL DELHI: 2.5.2011 contd/........
15IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI SC NO:36/09 FIR NO: 2/09 PS SPECIAL CELL U/s 17/18/19/20 Unlawful Act State Vs.
1. Chongtham Manglemajao Singh @ K.K.Nganba @Chaoba@Koi@Irabat
2.Nagriyambam Rattan Singh
3.Naorem Amumacha Singh @ Yambung
4.Chongtham Ibomacha Singh 02.05.2011 PR: Sh. Rajiv Mohan for State Ld. APP for state Accused No.1 & 4 in J/c with Sh. Ghanshyam Sahrma Advocate Accused No. 2 & 3 are in J/c with Ld. Counsel Sh.
Sandeep Chandra and Sandeep Tyagi advocate I have heard arguments at length on the point of charge and have perused the case file.
Vide separate order on charge of the day, no prima facie case is made out against the accused Chongtham Ibomacha Singh. He stands discharged accordingly , he be released from J/c forthwith if not required in any other case.
Prima facie case U/s 17/18 and 20 of Unlawful Activities Act made out against the accused No. 1 namely Chongtham contd/........
16Manglemajao Singh @ K.K.Nganba @Chaoba@Koi@Irabat. No charge for commission of offence punishable U/s 19 of Unlawful Activities made out against the accused Chongtham Manglemajao Singh @ K.K.Nganba @Chaoba@Koi@Irabat.
Prima facie case U/s 18 and 19 of Unlawful Activities Act made out against the Accused No.2 Nagriyambam Rattan Singh. No charge for commission of offence punishable U/s 17 and 20 of the Act made out against the accused Accused No.2 Nagriyambam Rattan Singh.
Prima facie case U/s 18 and 20 of Unlawful Activities Act made out against the Accused No.3 Naorem Amumacha Singh @ Yambung No charge for commission of offence punishable U/s 17 and 19 of the Act made out against the accused Accused No.3 Naorem Amumacha Singh @ Yambung .
All three accused persons are charged accordingly to which they pleaded not guilty and claimed to be tried. Now to come up for PE on 6.6.2011.
(SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi 02.05.2011 contd/........