Madras High Court
Mohamed Irfan vs Union Of India Represented By on 9 November, 2023
Author: S.S.Sundar
Bench: S.S.Sundar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 01.11.2023
Pronounced on : 09.11.2023
CORAM
THE HONOURABLE MR. JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
Criminal Appeal No.340 of 2023
Mohamed Irfan ...Appellant/3rd Accused
Vs.
Union of India represented by
The Inspector of Police,
National Investigation Agency,
Chennai.
(R.C.No.20/2022/NIA/DLI) ...Respondent/Complainant
Criminal Appeal filed u/s.21(4) of National Investigation Agency Act,
2008, to set aside the order passed in Crl.M.P.No.718 of 2022,
dated 05.01.2023 on the file of the Hon'ble Special Court under the
National Investigation Agency Act, 2008, Sessions Court for Exclusive Trial
for Bomb Blast Cases Chennai at Poonamallee, Chennai.
For Appellant : Mr.I.Abdul Basith
For Respondent : Mr.R.Karthikeyan
Special Public Prosecutor
(for NIA cases)
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JUDGMENT
(Order of the Court was delivered by SUNDER MOHAN, J.)
The captioned appeal has been preferred by the petitioner, challenging
the order in Crl.M.P.No.718 of 2022 dated 05.01.2023 passed by the
Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai, at
Poonamalle, Chennai – 600 056, dismissing his bail application.
2. The brief facts leading to the filing of the above appeal are as
follows:
(a) According to the prosecution one Sathick Batcha (A1) was a prime
accused in Mayiladuthurai, P.S. Crime No.1601/2020 and 164/2022.
On specific information that he was in possession of arms and weapons,
a special police team on 21.02.2022, at about 10.00 hours, intercepted a
black colour Mahindra Scorpio bearing Reg.No.TN OF IL-1446 at
Nidur – Mayiladuthurai Railway gate travelling from Nidur to
Mayiladuthurai. The appellant and the other accused were found in the car.
A case in Cr.No.165/2022 was registered on the file of Mayiladuthurai
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Police Station for the offence under Sections 148 and 506 (ii) IPC r/w
Section 28 of the Arms Act, 1959. All the accused were arrested. One laptop
with adapter, one stainless steel hand-cuff, one I-Phone, one OPPO Phone,
one power bank, one V8 video shooting pen, one GITE Wireless router,
one hard disk, one metal air gun, a small box containing pellets and a
Mahindra Scorpio with registration TN-07-BL-1446 were seized from the
accused.
(b) On 25.02.2022, an alteration report was filed by the Investigating
officer to include Section 307 of the Indian Penal Code. On 06.03.2022,
another alteration report was filed by the Investigating officer before
Judicial Magistrate-I, Mayiladuthurai, for including the offences under
Sections 13, 38, 39 of the Unlawful Activities (Prevention) Act, 1967
(hereinafter referred to as the UA (P) Act).
(c) The Government of India, in exercise of powers conferred under
Section 6 (5) r/w Section 8 of the National Investigation Agency Act, 2008
(hereinafter referred to as the NIA Act), entrusted the investigation of the
case to the respondent/National Investigation Agency (NIA).
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(d) The respondent re-registered an FIR in R.C.NO.20/2022/
NIA/DLI on 30.04.2022 under Sections 148, 506 (ii) IPC, 1860, and
Sections 13, 38, 39 of the UA (P) Act, and Section 28 of the Arms Act,
1959.
(e) On investigation, the respondent filed a Final Report after
obtaining sanction against the appellant and others which was taken
cognizance in Spl.S.C.No.2 of 2022 by the Trial Court. The Government of
India accorded sanction for prosecuting the appellant for the offences under
Sections 18 and 39 of the UA (P) Act.
(f) It is the case of the prosecution as seen from the Final Report that
A1 and A3 had been indulging in anti-national activities in the name of
Khilafah Party of India, and Intellectual Students of India (ISI); that A1 is
a strong and a devote supporter of ISIS; that Khilafah Party of India and
Khilafah Front of India, are manifestations of Islamic State/ISIS/Daesh
outfit; that A3 was associated with A1, since 2019; that A1 to A3 had
discussed about establishing Islamic rule in India, knowing fully well that
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A1 had links with ISIS; that A3 participated in conspiracy meetings
conducted at Tamil Nadu Haj Services Society by A1 and others for
discussing about ideologies of ISIS, and for promoting Khilafah Party of
India, which was formed with a motto to establish Islamic rule in India by
waging war and overthrowing the Government lawfully established; that
A3 had conspiracy meetings with other accused and hence, A3 has
committed the offence under Section 120-B of the Indian Penal Code and
Sections 18 and 39 of the UA (P) Act, 1967.
(g) The appellant filed the bail application before the Special Court
under the National Investigation Agency Act, 2008, Sessions Court for
Exclusive Trial of Bomb Blast Cases, Chennai at Poonamalle,
Chennai – 600 056, in Crl.M.P.No.718 of 2022. The Special Court
dismissed the said bail application, holding that there are reasonable
grounds to believe that the appellant had committed the offences and hence,
he is not entitled to bail. Aggrieved by the said order, the instant appeal has
been filed.
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2. Mr.I.Abdul Basith, the learned counsel for the appellant, submitted
that the Final Report is based on surmises and conjectures; that there is no
material to charge the appellant for the offence under the UA(P)Act; that the
prosecution at best had only established the appellant’s association with A1
and not with any terrorist organization; that the appellant is a meat dealer
and had supplied sheep to A1 during Bakrid festival; that the statements of
witnesses relied upon by the prosecution against the appellant do not
suggest that the appellant has committed the offences under the UA(P) Act.
The learned counsel relied upon the Judgment of the Hon’ble Supreme
Court in:
(i) Thwaha Fasal and Ors. Vs. Union of India (UOI)
and Ors reported in (2021) SCC Online SC 1000.
(ii) Union of India Vs. K.A.Najeeb reported in (2021) 3
SCC 713,
in support of his submission and prayed for releasing the appellant on bail.
3. The respondent had filed a counter, praying for dismissal of the
appeal.
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4. Mr.R.Karthikeyan, learned Special Public Prosecutor
(for NIA cases), submitted that the appellant is associated with A1/founder
of the Khilafah Party of India, which has ideologies of ISIS (Islamic State of
Iraq and Syria), and all the accused, including the appellant worked towards
the goal of establishing the Islamic rule in India in violation of the
Constitution of India and the laws established thereunder; that the
investigation revealed that the appellant had participated in conspiracy
meetings held at the Tamil Nadu Haj Service Society at Choolai, and in a
Madrassa by the name Jamia Muhammadia at Mannadi. The learned Public
Prosecutor further submitted that the statement of Protected Witness – B,
the statement of another witness by the name M.Fasithi Ali Rahman, and the
messages in the WhatsApp group called the Islami Country/Islamic State
stating that the conspiracy meetings were conducted at Tamil Nadu Haj
Services Society, revealed the involvement of the appellant in the offences
under the UA (P) Act. Therefore, the learned Public Prosecutor submitted
that there are reasonable grounds to believe that there is a prima facie case
against the appellant.
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5. This Court finds that the appellant has been charged for the
offences under the UA (P) Act, which falls under Chapters IV and VI of the
said Act. Therefore, there is a statutory restriction under the proviso to
Section 43 – D (5) of the UA (P) Act, while considering the bail application.
Before we analyse the facts to ascertain whether the appellant is entitled to
bail in view of the statutory limitations, the nature of the said limitations has
to be understood. The Hon’ble Supreme Court had occasion to consider this
aspect in a few cases.
6(a). In National Investigation Agency Vs. Zahoor Ahmad Shah
Watali reported in (2019) 5 SCC, the Hon’ble Apex Court had held as
follows:
“23.By virtue of the proviso to sub-section (5), it
is the duty of the Court to be satisfied that there are
reasonable grounds for believing that the accusation
against the accused is prima facie true or otherwise.
Our attention was invited to the decisions of this
Court, which has had an occasion to deal with similar
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special provisions in TADA and MCOCA. The principle
underlying those decisions may have some bearing
while considering the prayer for bail in relation to the
offences under the 1967 Act as well. Notably, under the
special enactments such as TADA, MCOCA and the
Narcotic Drugs and Psychotropic Substances Act,
1985, the Court is required to record its opinion that
there are reasonable grounds for believing that the
accused is “not guilty” of the alleged offence. There is
a degree of difference between the satisfaction to be
recorded by the Court that there are reasonable
grounds for believing that the accused is “not guilty”
of such offence and the satisfaction to be recorded for
the purposes of the 1967 Act that there are reasonable
grounds for believing that the accusation against such
person is “prima facie” true. “By its very nature, the
expression “ prima facie true” would mean that the
materials/evidence collaged by the investigating
agency in reference to the accusation against the
accused concerned in the first information report,
must prevail until contradicted and overcome or
disproved by other evidence, (emphasis supplied) and
on the fact of it, shows the complicity of such accused
in the commission of the stated offence. It must be good
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and sufficient on its face to establish a given fact or the
chain of facts constituting the stated offence, unless
rebutted or contradicted. In one sense, the degree of
satisfaction is lighter when the Court has to opine that
the accusation is “prima facie true,” as compared to
the opinion of the accused “not guilty” of such offence
as required under the other special enactments. In any
case, the degree of satisfaction to be recorded by the
Court for opining that there are reasonable grounds
for believing that the accusation against the accused is
prima facie true, is lighter than the degree of
satisfaction to be recorded for considering a discharge
application or framing of charges in relation to
offences under the 1967 Act.”
6 (b). In Paragraph 24 of the National Investigation Agency Vs.
Zahoor Ahmad Shah Watali's case (cited supra), the Hon’ble Supreme
Court had held as follows:
“24. A priori, exercise to be undertaken by
the Court at this stage of giving reasons for grant
or non - grant of bail is markedly different from
discussing merits or demerits of the evidence.
The elaborate examination or dissection of the
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evidence is not required to be done at this stage.
The Court is merely expected to record a finding on
the basis of broad probabilities regarding the
involvement of the accused in the commission of
the stated offence or otherwise.”
6 (c). In the above case, the Hon’ble Supreme Court had relied upon
the observations made in an earlier three Bench Judgment in Ranjitsing
Brahmajeetsing Sharma V. State of Maharashtra, reported in (2005) 5
SCC 294 while interpreting Section 21 (4) of Maharashtra Control of
Organised Crime Act, 1999. It is worthwhile to extract the relevant
observations made therein:
“44. The wording of Section 21 (4), in our
opinion, does not lead to the conclusion that the
court must arrive at a positive finding that the
applicant for bail has not committed an offence
under the Act. If such a construction is placed, the
court intending to grant bail must arrive at a finding
that the appellant has not committed such an offence.
In such an event, it will be possible for the
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prosecution to obtain a judgment of conviction of the
applicant. Such cannot be the intention of the
legislature.''
6 (d). Further in Thwaha Fasal Vs.Union of India's case
(cited supra) the Hon’ble Supreme Court had held as follows:
“20. Therefore, while deciding a bail petition
filed by an accused against whom offences under
Chapters IV and VI of the 1967 Act have been alleged,
the Court has to consider whether there are reasonable
grounds for believing that the accusation against the
accused is prima facie true. If the Court is satisfied after
examining the material on record that there are no
reasonable grounds for believing that the accusation
against the accused is prima facie true, then the
accused is entitled to bail. Thus, the scope of inquiry is
to decide whether prima facie material is available
against the accused of commission of the offences
alleged under Chapters IV and VI. The grounds for
believing that the accusation against the accused is
prima facie true must be reasonable grounds.
However, the Court while examining the issue a prima
facie case as required by sub section (5) of Section
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43 D is not expected to hold a mini trial. This Court is
not supposed to examine the merits and demerits of
the evidence. If a charge sheet is already filed, the
Court has to examine the material forming a part of
charge sheet for deciding the issue whether there are
reasonable grounds for believing that the accusation
against such a person is prima facie true. While doing
so, the Court has to take the material in the charge
sheet as it is.” (emphasis supplied).
6(e). This Court also finds that in Union of India Vs. K.A.Najeem
(cited supra), the Hon’ble Supreme Court had observed as follows:
“18. It is thus clear to us that the
presence of statutory restrictions like Section
43 – D (5) of UAPA per-se does not oust the
ability of Constitutional Courts to grant bail on
grounds of violation of Part III of the
Constitution. Indeed, both the restrictions
under a Statue as well as the powers
exercisable under Constitutional Jurisdiction
can be well harmonised. Whereas at
commencement of proceedings, Courts are
expected to appreciate the legislative policy
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against grant of bail but the rigours of such
provisions will melt down where there is no
likelihood of trial being completed within a
reasonable time and the period of
incarceration already undergone has exceeded
a substantial part of the prescribed sentence.
Such an approach would safegaurd against the
possibility of provisions like Section 43 – D (5)
of UAPA being used as the sole metric for
denial of bail or for wholesale breach of
constitutional right to speedy trial.”
7. Thus, from the observations made in the above judgments, it can be
seen that in National Investigation Agency Vs. Zahoor Ahmad Shah
Watali's case (cited supra), the Hon’ble Supreme Court had observed that
the degree of satisfaction to hold that there is a prima facie case for denying
bail would differ from the degree of satisfaction to dismiss a discharge
petition on the ground that there is a prima facie case. While considering a
discharge petition and assessing the prima facie case, it is trite law that even
grave suspicion is sufficient to frame a charge. However, we are of the view
that while denying the liberty of a person, the test to assess the prima facie
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case would be different. The liberty of a person cannot be denied on grave
suspicion alone. The Act specifically employs the words “reasonable
grounds for believing that the accusation against such a person is prima
facie true”. Further, we are of the view that the accusation must be not only
grave, but the materials in support of the accusation must be cogent at
whatever stage the bail application is considered. Thus, there must be
something more than grave suspicion while holding that there is a prima
facie case to deny bail. The Judgements referred to above would also
indicate that the above restriction in the proviso to Section 43 D (5) of the
UA (P) Act is a slight departure from the bail jurisprudence, namely that bail
is the rule and the jail is an exception. It only means that while considering
a bail application, the Courts cannot grant bail on mere asking, and there
must be reasons for the grant of bail. However, the above restriction found
in the proviso to 43 (5) of the UA(P) Act cannot be read to mean that the
basic human right or the constitutional right of a person is taken away.
Pre-trial detention is an anathema to the Constitution besides being in
violation of the basic human right. The Judgments referred to above would
also indicate that where the Constitutional Courts find that there is an
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infraction of the fundamental right under Article 21 of the Constitution of
India, the rigours of the proviso would melt down. As to when pre-trial
detention would amount to a violation of Article 21 of the Constitution of
India, would depend on the facts and circumstances of each case. In one
case, the pre-trial detention, even for six months may be in violation of
Article 21 of the Constitution of India. In yet another case, pre-trial
detention of even three years would not amount to a violation of
Constitutional right. This would depend on the gravity of the offence
alleged, the role played by the particular accused, the nature of the evidence
relied upon by the prosecution, and the probable punishment that could be
imposed on the said accused. The liberty of a person pending trial cannot be
ordinarily curtailed unless the law and facts warrant such curtailment.
8. Keeping in mind the above legal principles, we may analyse the
facts in the instant case. The allegation against the appellant is that he had
committed the offence under Section 18 of the UA (P) Act by conspiring to
commit a terrorist act and also under Section 39 of the UA (P) Act, relating
to support given to a terrorist organization. The materials relied upon by the
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prosecution is reiterated in the counter at paragraph 16, which reads as
follows:
“16. It is submitted that there are oral
evidence against the petitioner, to prove that
during October – 2021 the petitioner threatened
witness Shri M.Fasithi Ali Rahman, that his
leader A-1 and his associate A-2 are ISIS
terrorist and have no mercy and threatened the
witness that he will be killed in the middle of the
street. Further, protected Witness – B, had
clearly disclosed the role of the
petitioner/accused (A-3), that he is the close
confident of A-1 and he used to deal all the
matters of A-1 including funds illegally and
hence there are every grounds to substantiate
that the petitioner/accused has actively
participate in the offence committed by A-1 and
A-2 in pursuance of conspiracy and hence the
petition is liable to be dismissed.”
9. From the above, it can be seen that the first material relied upon
is a statement of witness who is alleged to have been threatened by the
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appellant by stating that his leaders were ISIS terrorists and they would kill
any person. We are of the view that merely because the appellant had
threatened the person stating that he was associated with an ISIS terrorist,
it would by itself not be a reasonable ground to hold that he had supported a
terrorist organization. The threat would certainly amount to an offence but
not an offence under Section 39 of the UA (P) Act. The prosecution has to
establish the support to the terrorist organisation by independent evidence.
The other statement relied upon by the prosecution is the statement of the
protected witness whose entire statement has been redacted. This Court had
perused the unredacted statement and found that neither the conspiracy to
commit a terrorist act nor the support of the appellant/petitioner to a terrorist
organization can be inferred. No doubt, the statement reveals the association
of the appellant with A1. The requisite intention to support a terrorist
organization cannot be inferred from the materials filed in support of the
final report. The fact that the appellant handled the funds of A1 cannot be
the basis to infer his support to any terrorist organization. Support to an
individual is different from support to a terrorist organisation. Further, we
find from the averments in the Final Report that the motto of the outfit said
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to have been formed by A1, namely the Khilafa Party of India, was to
establish Islamic rule in India by overthrowing the Government established
by law. This by itself would not amount to a terrorist act within the meaning
of Section 15 of the UA (P) Act. There must be material to show that the
appellant had intended to support a terrorist organisation or had conspired to
commit a terrorist act in order to attract the offences under Sections 39 and
18 of the UA (P) Act, respectively. The allegation of conspiracy to commit a
terrorist act must spell out the object of the conspiracy (i.e) as to what
exactly was the terrorist act that was agreed to be committed. However, we
may hasten to add that the above observations are made only for arriving at
a prima facie satisfaction for the purpose of considering the bail application
on the basis of the broad probabilities of the case.
10. We may also add here that the appellant has been in custody since
February 2022. Even assuming that the materials collected by the
prosecution may ultimately lead to conviction, the detention pending trial
cannot be indefinite. We are informed that the charges are yet to be framed.
The prosecution has cited 119 witnesses and in such circumstances, the trial
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is not likely to be completed within a reasonable time. We have already
referred to the observations of the Hon’ble Supreme Court in Union of
India Vs. K.A.Najeem's case (cited supra), wherein it has been held that
the rigours of 43 – D (5) of the UA(P) Act, would melt down if the accused
had been incarcerated for a long time and the trial is not likely to be
completed in the near future. Bearing in mind, the principles laid down by
the Hon'ble Supreme Court as summed up by us in Paragraph 7 supra,
considering the nature of allegation, the nature of the materials relied upon
by the prosecution, and the period of incarceration, we are inclined to
exercise our powers to grant bail to the accused.
11. Therefore for the above reasons, this appeal deserves to be
allowed, and the accused is set at liberty on the following conditions:
(i) The appellant shall execute a bond and
furnish two sureties for a likesum of Rs.50,000/-
[Rupees Fifty Thousand only] each and one of the
sureties should be a blood relative to the satisfaction
of the learned Judge, Special Court under the
National Investigation Agency Act, 2008 (Sessions
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Court for Exclusive Trial of Bomb Blast Cases)
Chennai at Poonamallee, Chennai - 600 056;
(ii) After coming out from jail, the appellant
shall stay at Chennai and shall not leave the Chennai
city without the permission of the trial court;
(iii) The appellant shall appear and sign before
the trial court every day at 10.30 a.m. until further
orders;
(iv) The appellant shall surrender his Passport
(if any) before the trial court and if he does not hold a
passport, he shall file an affidavit to that effect in the
form that may be prescribed by the trial court. In the
latter case the trial court will if he has reason to doubt
the accuracy of the statement, write to the
Passport Officer concerned to verify the statement and
the Passport Officer shall verify his record and send a
reply within three weeks. If he fails to reply within the
said period, the trial court will be entitled to act on the
statement of the appellant;
(v)The appellant shall cooperate with the
investigation;
(vi) The appellant shall not tamper with
evidence and indulge in any other activities which are
in the nature of preventing the investigation process;
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(vii) The appellant shall inform the trial court
the address where he resides and if changes his
address, it should be informed to trial court;
(viii)The appellant shall use only one mobile
phone during the time he remains on bail and shall
inform the trial court his mobile number;
(ix)The appellant shall also ensure that his
mobile phone remains active and charged at all times
so that he remains accessible over phone throughout
the period he remains on bail;
(x)The trial court will be at liberty to cancel bail
if any of the above conditions are violated or a case
for cancellation of bail is otherwise made out.
(S.S.S.R., J.) (S.M., J.)
09.11.2023
Index : yes / no
Speaking/Non-Speaking Order
Neutral citation : yes/no
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Copy to:
1.The Judge,
Sessions Court for Exclusive Trial for Bomb Blast Cases Chennai,
Poonamallee,
Chennai – 600 056.
2. The Superintendent of Prisons,
Central Prison,
Puzhal,
Chennai.
3.The Inspector of Police,
National Investigation Agency,
Chennai.
4. The Public Prosecutor
High Court of Madras,
Chennai – 600 104.
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S.S. SUNDAR, J.
AND SUNDER MOHAN, J.
dk Pre-delivery Judgment in Criminal Appeal No.340 of 2023 Dated: 09.11.2023 Page 24 of 24 https://www.mhc.tn.gov.in/judis