Kerala High Court
Riyas A @ Riyas Aboobakkar @ Abu Dujana vs Union Of India on 10 December, 2024
Crl.A. No.783 of 2024 :1
: 2024:KER:92808
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TH
TUESDAY, THE 10
DAY OF DECEMBER 2024 / 19TH AGRAHAYANA, 1946
CRL.A NO. 783 OF 2024
CRIME NO.2/2016 OF NATIONAL INVESTIGATION AGENCY KOCHI,
ERNAKULAM
AGAINST
THE
JUDGMENT
DATED
09.02.2024
IN
SC
NO.3
OF
2019
OF
SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM
APPELLANT/ACCUSED:
IYAS A @ RIYAS ABOOBAKKAR @ ABU DUJANA
R
AGED 29 YEARS
S/O OF ABOOBAKKAR, HOUSE NO.XVI/717,
MUTHALAMAD PANCHAYAT, AKSHARA NAGAR,
CHULLIYARMEDU-POST, KOLLAMCODE,
PALAKKAD-DIST (PRESENTLY LODGED AT CENTRAL
PRISON VIYYUR), PIN - 678507
Y ADVS.
B
BIJU ANTONY ALOOR
K.P.PRASANTH
HASEEB HASSAN.M
Crl.A. No.783 of 2024 :2
: 2024:KER:92808
SOKAN K.V.
A
KRISHNASANKAR D.
RESPONDENT/COMPLAINANT:
NION OF INDIA U REPRESENTED BY INVESTIGATING OFFICER, IN RC- 02/2016/NIA/ROC OF NATIONAL INVESTIGATING AGENCY, KOCHI, THROUGH ASSISTANT SOLICITOR GENERAL OF INDIA, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031. Y ADV A.R.L. SUNDARESAN, ASGI. B ADV.SREENATH S, PUBLIC PROSECUTOR FOR NIA ADV. ARJUN AMBALAPATTA, SR.PP FOR NIA HIS T CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 26.11.2024, THE COURT ON 10.12.2024 DELIVERED THE FOLLOWING: Crl.A. No.783 of 2024 :3 : 2024:KER:92808 'CR' J U D G M E N T Raja Vijayaraghavan. J. In 2006, Yoko Ono--renowned songwriter and wife of the late John LennonoftheBeatles--offeredapoignanttributetothememoryofliveslost in the aftermath of the so-called "WarOnTerror"following9/11.Herwords resonate as both a lament and a plea: "To those who have lost loved ones without reason: forgive us for failing to prevent such tragedies. To those who havesufferedabuseortorture:forgiveusforallowing these horrors through our silence." Interpretedinthecontextofterrorismandrelatedviolence,theselines acknowledge the grief of those who have lost loved ones and the senseless violencedrivenbyideologyandhatred.Thelinesalsoreflecthowindifference, fear, or delayed action can create environments where extremist ideologies thrive,perpetuatingcyclesofviolenceandleavinglastingscarsonvictimsand society. Crl.A. No.783 of 2024 :4 : 2024:KER:92808 2. The term "terror" originates from the Latin word "terrere", meaning "to tremble" or "to frighten." Background Facts: 3. In recent decades, terrorist activities have taken various forms, including the targeted killing of innocent civilians with advanced weaponry, planting explosives in public spaces, taking of hostages, aircraft hijackings, and even armed conflicts, leaving no corner of society untouched by its devastating reach. 4. Terrorism has evolved into a global menace, and India is not immune to its impact. It threatens not only the life, liberty, and property of individuals but also endangers the social order, disrupts the economic framework of the State,andunderminestheidealsandvaluesthatdefineits liberal character. 5. Horrific acts of terrorism in India include the 1993 Mumbai blasts, the 2001 Parliament attack, the 2006 Mumbai train bombings, 26/11 attacks of the year 2008, the 2016Pathankotattack,andthe2019Pulwama Crl.A. No.783 of 2024 :5 : 2024:KER:92808 bombing. These tragedies highlight the persistent threat to national security and also the devastating but avoidable loss of hundreds of innocent lives. 6. The Unlawful Activities (Prevention) Act, 1967, (hereinafter referred to as "the UA(P) Act") was enacted to provide for more effective preventionofcertainunlawfulactivitiesofindividualsandassociationsandfor dealingwithterroristactivitiesandformattersconnectedtherein.ThesaidAct has been amended in the years 2004, 2008, and 2013 to add certain provisions relating to various facets of terrorism. Under Section 35 of the UA(P) Act, the Central Government is empowered to add an organization in the First Schedule or the name of an individual in the Fourth Schedule, if it believes that such organization or individual is involved in terrorism. It may alsoaddanorganizationintheFirstScheduleifsuchorganizationisidentified as a terrorist organization in the resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations to Combat International Terrorism. 7. The Ministry of Home Affairs,NewDelhi,videnotificationdated 16.02.2015, added Islamic State/Islamic State of Iraq and Levant/Islamic Crl.A. No.783 of 2024 :6 : 2024:KER:92808 State of Iraq and Syria/Daesh, and all its manifestations as a terrorist organization. In the said notification, it was mentioned as follows: "And whereas the Islamic State/Islamic State of Iraq and Levant/Islamic State of Iraq and Syria/Daesh, a terrorist outfit operating in Iraq and neighbouring countries, has been resorting to terrorist actions to consolidate its position in that area by recruiting youthfor'GlobalJihad'toachievetheobjectiveofestablishingitsown 'caliphate' by overthrowing democratically elected governments, besides resorting to terrorism in the form of killing of innocent civilians and security forces; And whereas, the Central Government believes that the Islamic State/Islamic State of Iraq and Levant/Islamic State of Iraq and Syria/Daeshisinvolvedinradicalizationandrecruitmentofvulnerable youth from various countries including India; And whereas, such recruitmentofyouthtotheoutfitfromIndiaand their radicalisation is a matter of serious concern for the country especially with regard to its likely impact on national security when such youth return to India; And whereas, the Central Government is satisfied that the Islamic State/Islamic State of Iraq and Levant/Islamic State of Iraq and Syria/Daeshisaterroristorganisationandhasdecidedtoaddthesaid organisationandallitsmanifestationsintheFirstScheduletothesaid Act". Crl.A. No.783 of 2024 :7 : 2024:KER:92808 Bytheabovenotification,theIslamicStateofIraqandSyria(ISIS)was includedintheFirstScheduleoftheUA(P)Act,andanypersonwhoassociates himself or professes to be associated with ISIS to further its activities are deemed to have committed an offence under Section 38 of the UA(P) Act. Similarly,anypersonwhoinvitessupporttofurthertheactivitiesofaTerrorist organization is liable for punishment under Section 39 of the UA(P) Act. A brief overview of the prosecution case: 8. Intheyear2016,therewasanexodusofIndiancitizensleaving thecountrytojointheIslamicStateofIraqandSyria(ISIS)/Daesh,aterrorist organization,proscribedinIndiabyinclusionintheScheduleoftheUA(P)Act. A certain Abdulla T.P. lodged a complaint before the Station House Officer, ChanderaPoliceStation,whereinitwasallegedthathisson,oneAbdulRashid AbdullaandhiswifeAyisha@SoniaSebastian,andtheirminorchildhadgone missingforoveramonth.Onthebasisofthesaidcomplaint,CrimeNo.534of 2016 was registered under Section 57 of the Kerala Police Act, 2011. At or aroundthesametime,itwasalsoreportedattheChanderaPoliceStationthat 14otherpersonsfromthelocalityhadgonemissingandseveralothercrimes Crl.A. No.783 of 2024 :8 : 2024:KER:92808 were registered under Section 57 of the Kerala Police Act, 2011. 9. Preliminary investigation conducted by the police, revealed that the missing persons had left India to physically join ISIS, a Terrorist Organization included in the Schedule of the UA(P) Act. To conduct an exhaustiveinvestigation,andtoarriveattherootoftheconspiracyleadingto the missing of the individuals, a special team was constituted and all the crimes registered were clubbed together with Crime No. 534 of 2016 as the maincase.Inthecourseoftheinvestigation,Sections38and39oftheUA(P) Act were added. The 1st accusedinthesaidcasewasAbdulRashidAbdulla. In the courseoftheinvestigation,itwasrevealedthatoneladybythename 'Yasmeen Muhammed Zahid' was also involvedandshewasarraignedasthe 2nd accused. The 2nd accused was arrested on 01.08.2016, while she was attempting to exit India with a view to joining ISIS/Daesh in Afghanistan. 10. Takingnoteofthenatureoftheallegationsandtheirgravity,the Ministry of Home Affairs, Government of India, by order dated 23.08.2016, entrusted the investigation of Crime No.534 of 2016 of the Chandera Police Station to the NIA. Immediately thereafter, the Crime was re-registered as Crl.A. No.783 of 2024 :9 : 2024:KER:92808 RC-02/2016/NIA/KOC of NIA Police Station, Kochi, under Sections 120B and 125 of the IPC and Sections 13, 38 and 39 of the UA(P) Act, 1967. 11. After the investigation was completed, the prosecutionsanction was obtained on 27.01.2017, and a charge sheet was filed against the 1st accused, whowasabsconding,andthe2ndaccusedunderSection120Br/w. Section 125 of the IPC and Sections 38, 39, and 40 of the UA(P) Act. 12. The learned Special Court took cognizance of the offence and numberedthecaseS.C.No.1of2017.Asthe1staccusedwasabsconding,the caseproceededagainstthe2ndaccused.ShewasfoundguiltybytheSessions Court and sentenced to rigorous imprisonmentforaperiodof7yearswitha fine for the offence under Section 120B r/w. Section 125 of the IPC and Sections 38, 39, and 40 of the UA(P) Act. 13. On appeal, this Court partly allowed the appeal and her conviction under Section 39 of the UA(P) Actwassetaside. Fortheoffence under Section 38 of the UA(P) Act, the imprisonment was reduced to three years. The matter was taken up before the Apex Court by the NIA and by judgment dated 2.8.2019 in Union of India v. Yasmeen Mohammad Crl.A. No.783 of 2024 :1 0: 2024:KER:92808 Zahid Alias Yasmeen1, the judgment passed by the Special Court was restored. 14. The investigation in the main case was proceeded with, in the course of which it was revealed that Nashidul Hamzafar, arrayed as accused No.16, and Habeeb Rahman, arrayed as accused No.17, had contacted the abscondingaccused,andtheyhadhatchedaconspiracythroughvarioussocial media platforms to join ISIS/Daesh in Afghanistan and to further terrorist activities. Nashidul had in factgonetoAfghanistanthroughIrantojoinISIS. HabeebhadalsogonewithNashiduluptoIranbuthadtoreturnbacktoIndia, without entering Afghanistan. The charge sheet was laid before the jurisdictional court against Nashidul under Section 120B r/w. Section 125 of theIPCandunderSections38and39oftheUA(P)Act.Habeebwastendered pardononconditionthathemakeafulldisclosureoftheentirefacts.Nashidul pleadedguiltybeforetheTrialcourtandthesamewasaccepted,andhewas convictedandsentencedtoundergoimprisonmentfor5years.Thisjudgment has become final. 15. Inthecourseoftheinvestigationofthemaincrime,information 1 [(2019) SCC OnLine SC 957] Crl.A. No.783 of 2024 :1 1: 2024:KER:92808 wasreceivedthat RiyasA.@RiyasAboobacker@AbuDujana,(theappellant herein), oneMuhammedFaizal,AboobakkarSidik,andoneAhammedArafath constantly maintained contact with the 1st accused and others, who joined ISIS/Daesh. The materials collected also revealed that the above accused were strongly influenced by the violent extremist ideology of ISIS and were potentially motivated to either join the Islamic State or carry out terrorist activities within Kerala. It was on the basis of the said informationthatthe aforesaid persons were arrayed as accused Nos. 18 to 21. 16. On the strength of an advanced search memorandum, simultaneous raids were conducted in the residential homes of accusedNos. 18 to 20. In the course of the search, various electronic gadgets and equipment like mobile phones, SIM Cards, DVDs, and Memory Cards were seized. Onfurtherinvestigation,itwasrevealedthattheappellanthereinwas ahighlycommittedmemberofISIS andthathewasmakingseriouseffortsto committerroristacts,thereby,furtheringtheactivitiesofISIS/DaeshinIndia. In the said circumstances, the arrest of the appellant was recorded on 29.04.2019. The investigation also revealed that the appellant along with accused Nos. 19 and 20, in pursuance to a conspiracy to commit a terrorist Crl.A. No.783 of 2024 :1 2: 2024:KER:92808 act, had organized meetings near Lulu Mall, Ernakulam, and Marine Drive, Ernakulamon26.10.2018.Theinvestigationalsorevealedthatinthecourseof the said meeting, the appellant took strenuous efforts to convince accused Nos. 19 and 20 to carry out the Istishhad Operation (martyrdom operation) associated with armed warfare and 'military jihad' citing various Islamic texts. 17. The NIA concluded that though accused Nos. 19 and 20 were initiallyinfluencedbytheideologyofISIS/Daeshandwereinclinedtoperform Hijra, they later realized their folly and joined the investigation. They expressedtheirwillingnesstostateallfactstotheirknowledgewithaviewto seek pardon and in that view of the matter, their statements were recorded under Section 164 of the Cr.P.C. In their statement, they stated that they became radicalized by ISISideologythroughsocialmediaplatformsandthey werepersuadedbytheappellantofhisdesiretocarryoutsuicidebombingsin KeralatofurthertheagendaofISISinIndia. Onexpressingtheirwillingness toturnapprovers,theNIAfiledanapplicationunderSection307oftheCr.P.C. before the Special Court seeking to grant pardontoaccusedNos.19and20 on condition that they make a full and true disclosure of the whole of the circumstances within their knowledge relating to the offence and to every Crl.A. No.783 of 2024 :1 3: 2024:KER:92808 other person concerned. The accused Nos. 19 and 20 accepted the pardon tendered by the court as borne out from the order dated 20.11.2019. 18. The accused Nos. 3to15and17couldnotbearrestedasthey remained absconding. 19. After the investigation was completed, the NIA filed supplementary charges against theappellantbeforetheSpecialCourt.Inthe meantime,theNIAsoughtsanctionfortheprosecutionoftheappellantunder Section45(1)oftheActfortheoffencespunishableunderSection120Bofthe IPC and Sections 38 and 39 of the UA(P) Act, 1969. After receiving the recommendation from the authority set up under the Unlawful Activities (Prevention) (Recommendation and Sanction for Prosecution) Rules, 2008 (hereinafter referred to as 'Rules 2008'), the Central Government accorded sanction. Proceedings before the Special Court: 20. After taking cognizance and hearing both sides, charges were framed against the accused for offenses under Sections 38 and 39 of the Crl.A. No.783 of 2024 :1 4: 2024:KER:92808 UA(P) Act r/w.Section120BoftheIPC.Thecourtchargeframedagainstthe appellant essentially reads as under: a) The appellant, along with Muhammed Faizal and Aboobakker SiddiiquewereradicalizedontheideologyofISIS/Daesh,from2017 onwards and had maintained contact withtheabscondingaccused Abdul Rasheed Abdulla and others who had become members of the said proscribedterroristorganization.FromJuly2017onwards, the appellant along with Muhammed Faizal and Aboobakker Siddique had contacted one another and shared the ideology of ISIS/Daesh with the intent to further the objectives of the proscribed organization, by performing Hijra to the Islamic State. The appellant had organized conspiracy meetings at LuluMalland MarineDriveinKochiCityon26.10.2018,tofurthertheactivitiesof ISIS/Daesh in India. In the said conspiracy meeting, the accused decidedtocommitterroristactsinKeralathroughsuicideattacksto further the activities of ISIS/Daesh inIndia.Forachievingthesaid objective, the appellant motivated and sought support from Muhammed Faizal and Aboobacker Siddique, the co-conspirators during the meeting, and by doingso,theappellanthascommitted offences punishable under Section120BoftheIPCr/w.Section38 and 39 of the UA(P) Act. b) That the appellant along with Muhammed Faizal and Aboobacker Sidik maintained contact with persons who had joined ISIS, and pursuant to the conspiracy, from July 2018 onwards,hecontacted Crl.A. No.783 of 2024 :1 5: 2024:KER:92808 A19andA20inthecrimeandsharedtheideologyofISIS/Daesh,to furthertheobjectivesoftheproscribedorganization,byperforming Hijra to the Islamic State and thereby committed offences punishable under Section 38 of the UA(P) Act. c) That the appellant along with Muhammed Faizal and Aboobacker Siddiquehadenteredintoacriminalconspiracyandinvitedsupport for ISIS/Daesh, a terrorist organization, with intent to further its activities,towagewaragainstSyria,anAsiaticpower,atpeacewith India, arranged meetings to support the terrorist organization to commit terrorist acts in Kerala throughsuicideattacksinIndia,for furthering the activities of ISIS/Daesh and thereby committed offences punishable under Section 39 of the UA(P) Act. 21. When the charges were read and explained, the appellant pleaded not guilty. To establishtheguilt,theprosecutionexaminedPWs1to 22, during which Exts. P1 to P37 were exhibited and marked. MO1 was produced and identified. After the close of the prosecution evidence, the incriminating materials arising from the evidence were presented to the accused under Section 313(1)(b) of the Cr.P.C. The accused denied all circumstancesandmaintainedhisinnocence.AstheinvocationofSection232 Cr.P.C.wasfoundtobenotwarranted,theaccusedwascalledupontopresent his defence. Although no evidence was adduced, the accused filed a written Crl.A. No.783 of 2024 :1 6: 2024:KER:92808 statementunderSection233(2)oftheCr.P.C.,narratinghisversionofevents. Inhisstatement,theappellantcontendedthatthewitnessesexaminedinthe case were strangers to him. According to him, after attaining adulthood, he had no occasion to stay at his family home and was unaware of the search conducted there. He denied attending any mosque as alleged by the prosecution and stated that he had no occasion to offer prayers inisolation. He refuted the allegations that he had spoken against India's democratic governancesystemoractedinanymannertosupportISIS.Hechallengedthe seizureofhisphoneandotherelectronicitems,denyinganyauthorshipofthe materials allegedly postedoninstantmessagingservicesorsocialnetworking platformssuchasFacebooktosupportISISoranyotherterroristorganization. He denied the prosecution's claimsthatheforwardedinflammatoryvideosor audioclipsanddeniedallallegationsthathewasinvolvedwithISIS.According to the appellant, the prosecution's case lacked evidence and constituted a clearabuseofprocess.Heassertedhisinnocenceanddeniedanyinvolvement in the alleged offences. Crl.A. No.783 of 2024 :1 7: 2024:KER:92808 Findings of the learned Special Judge: 22. The learned Sessions Judge, after a detailed evaluation of the evidence adduced by the prosecution, came to the following conclusions: a) Ext.P24 sanction order issued by the Central Government is in accordance with the provisions of Rules, 2008. b) The evidenceprovidedbyPWs1and2,alongwithdataextractedfrom themobilephoneoftheaccusedandotherdigitaldevices,coupledwith the social media posts, clearly establishes thattheaccusedwasdeeply radicalized by ISIS ideologies. c) There is clear evidence to demonstrate a meeting of minds between PWs 1 and 2 on the one hand and theaccusedforperforminghijrato Iraq and Afghanistan to further the activities of ISIS. d) Audio files retrieved from the accused's devices reveal voice clips of AbdulRasheedAbdulla,exhortinglistenerstotakeuparmsandengage in suicide attacks. e) The search history of the appellant's mobile phone includes searches Crl.A. No.783 of 2024 :1 8: 2024:KER:92808 relatedtoZahranHashim(aprominentSriLankanISISleader),AbuEsa (the Kuniya name of the original first accused), Sameer Ali (Shajeer Mangalassery,aKeralitewhojoinedISISandwaskilledinAfghanistan), AbdulGhayoob(abscondingaccusedinacaseunderinvestigationbythe NIA),Mithilaj(aconvictedaccusedinanISIS-relatedcase),andNimisha Fathima (an accused individual who joined ISIS and migrated to Afghanistan). The search historyalsoincludesqueriesonbomb-making and other similar subjects. f ) Theprosecutionsuccessfullyestablishedthattheaccusedenteredintoa criminal conspiracy to commit actsconstitutingoffencesunderSections 38 and 39 of the UA(P) Act. Consequently, the offence of criminal conspiracy stands proven. g) The prosecution had successfully established that the appellant had radicalized PWs 1 and 2 with the ideologies of ISIS, a recognized terrorist organization, that they conspired to further ISIS activities and garnersupportfortheorganizationbymigratingtoareassuchasSyria, Iraq, and Afghanistan, that the appellant associated himself with ISIS Crl.A. No.783 of 2024 :1 9: 2024:KER:92808 and professed such association with the intent to further its activities and that the appellant, with the intent to advance the organization's objectives, solicited support for ISIS by his acts and deeds. h) It was accordingly held that the actions of the appellant constitute offences punishable under Section 120B of the IPC, readwithSections 38 and 39 of the UA(P) Act, as well as standalone offences under Sections 38 and 39 of the UA(P) Act. i) The appellant was foundguiltyandwassentencedtoundergorigorous imprisonment for 10 years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a furtherperiodofoneyearfortheoffenceunderSection38oftheUA(P) Act. He was also sentenced to undergo rigorous imprisonment for a periodof10yearsandtopayafineofRs.50,000/-withadefaultclause for the offence punishable under Section 39 oftheUA(P)Act. Hewas sentenced to undergo RI for a period of 5 years and to pay a fine of Rs.25,000/- with a default clause for the offence punishable under Section 120B of the IPC r/w. Section 38 of the UA(P) Act. The Crl.A. No.783 of 2024 :2 0: 2024:KER:92808 substantive sentences of imprisonment were ordered to run concurrently. Contentions advanced by the Appellant: 23. Sri. B.A.Aloor, the learned counsel appearing for the appellant raised the following contentions before us to assail the finding of guilt: a) The appellant was arrayed as an accusedmerelybecauseherefusedto toe the line suggested by the NIA officers. b) AnevaluationoftheevidencetenderedbyPWs1and2revealsthatthey were the persons whowereinfluencedbytheviolentextremistideology propagated by the absconding accused. One of the witnesseshadeven travelled abroad. However, with respect to the appellant, who was attempted to be radicalized by PW1 and 2, was arrayed as an accused instead of as a witness. c) The investigating agency failed to present any material evidence suggestingthattheappellanthadmetPWs1and2atLuluMallorMarine Drive, Ernakulam, with the intent to further ISIS activities. The best Crl.A. No.783 of 2024 :2 1: 2024:KER:92808 evidence would have been statements from witnesses or CCTV footage corroborating such a meeting, neither of which was provided. d) NorelianceoughttohavebeenplacedonExts.P30andP31--thereports submitted by C-DAC--to further the claim of the prosecution that the appellant contacted PWs 1 and 2 through social networking sites to motivate them to join ISIS and spread its ideologies. e) PWs 1 and 2 were accomplices, and their evidence was inherently unreliable. Nevertheless, the learned Sessions Judge placed undue reliance on their testimony to arrive at a finding of guilt. f ) Theappellanthadbeenincustodyforover90daysbeforeanapplication was filed before the learned Magistrate to record the Section 164 statementsofPWs1and2.Areadingoftheevidencerevealsthatbefore recordingtheirstatements,bothwitnesseswerepermittedtoreviewtheir earlier statements recorded on 07.06.2019 to refresh their memory. g) In this case, the prosecution failed to prove the charge under Section 120BoftheIPC,astheevidencedidnotestablishameetingofmindsto Crl.A. No.783 of 2024 :2 2: 2024:KER:92808 commit an illegal act through illegal means. h) A proper evaluation of the evidence presented by the prosecution does notestablishthattheappellantwasamemberofaterroristorganization, professed such an association, or furthered its activities by soliciting support or any other means. Consequently, neither the offence under Section38norunderSection39ofthe UA(P)Actisattractedinthefacts of this case. i) ThelearnedSessionsJudgehasseriouslyerredinplacingrelianceonthe evidenceofPWs4,5,9,13,and14whowereallcitedtoprovethatthe appellanthadvisitedtheManjalimosqueandthathehadspokenagainst thedemocraticprocessandrefusedtoprayalongwithotherMuslimson thegroundthattheyfolloweddemocraticprinciples.Itispointedoutthat numerous omissions and contradictions were brought out while cross-examiningtheabovewitnessesandthus,theircredibilitywasitself under challenge. j) Relying on the principles laid down in Muhammed Riyas D.V.P v. Crl.A. No.783 of 2024 :2 3: 2024:KER:92808 Union of India2, it is contended that merely watching ISIS-related videosorjihadistcontentordownloadingspeechesbyindividualssuchas Zakir Naik is insufficient to categorize the appellant as a terrorist. k) Theprocedureforobtainingsanctionwasnotinaccordancewiththelaw. Furthermore,thesanctiongrantedwasissuedwithoutproperapplication of mind. l) With respect to the trial procedure, it is submitted that the learned Special Judge recorded evidence without adhering to the mandate of Section142oftheIndianEvidenceAct,whichexplicitlyprohibitsleading questionsduringchiefexaminationaimedatpromptingwitnessestogive answers favorable to the prosecution. m) It is submitted that the 17th accused in the original crime hadpleaded guilty to the chargeandhewasconvictedandsentencedtoundergoRI for 5 years. The2ndaccusedwasconvictedbytheSessionsJudgeand wassentencedtoundergoRIfor7years,whichjudgmentwasupheldby the Apex Court. However, insofar as the appellant is concerned, the 2 [(2018) 2 KLT S.N. 83 (Case No. 102)] Crl.A. No.783 of 2024 :2 4: 2024:KER:92808 Special Judge has imposed the maximum sentence of 10 years, which according to the learned counsel cannot be sustained. Contention of the respondents: 24. Sri.A.R.L.Sundareshan, the learned AssistantSolicitorGeneralof India, as assisted by Sri.Arjun Ambalappatta, and Sri. Sreenath, the learned Public Prosecutor, raised the following contentions before us: a) The Unlawful Activities (Prevention) Act prescribes a detailed procedure for granting sanction under Section 45(1) of the Act. The authority constituted under the Rules, 2008, conducted an independent review, and based on this recommendation, the Central Government granted sanction. The sanction order, it was argued, adhered to the prescribed procedure, upholding publicinterestwhilesafeguardingtherightsofthe accused. b) The learned counsel further contended that the rule requiring corroboration for relying on the evidence of an accomplice is one of prudence, not law. Inthiscase,theevidenceprovidedbytheapprovers Crl.A. No.783 of 2024 :2 5: 2024:KER:92808 was corroborated in material particularsbythetestimoniesofPWs4,5, 9, and 13, as well as electronic evidence. Relying onSureshChandra Bahri v. State of Bihar3, it was argued that a conviction can be recorded even on the uncorroborated testimony of an accomplice, provided the evidence is credible and cogent. Here, the approvers' evidence was not only credible but also supported byotherprosecution evidence. c) It was submitted that during cross-examination, PWs 1 and 2 were portrayed as individuals actively trying to further ISIS activities and persuading the appellant to join, rather than vice versa. However, the appellantdidnotchallengetheconspiracymeetingsheldatLuluMalland Marine Drive on 26.10.2018. PWs 1 and 2 explicitly stated that the appellant had expressed an intention to carry out suicide bombings in Kerala to further ISIS's agenda, a claim corroborated by constant communications between the appellant and PW1 through social media. d) The learned counsel would highlight the evidence of chats and interactions through platforms such as Facebook, Telegram, and other 3 [(1995) Supp. 1 SCC 80] Crl.A. No.783 of 2024 :2 6: 2024:KER:92808 internet-based messengers. These interactions included communications withZahranHashim,aSriLankanISISleader,andShajeerMangalassery, further demonstrating the appellant's association with ISIS.Additionally, data extracted from the appellant's mobile phone and memory card contained numerous videos, audio clips, documents, and images promoting ISIS ideologyandviolentjihad,evidencinghisinvolvementin proscribed activities. It was argued that theevidenceclearlyestablishes theappellant'spropagationofISISideology,demonstratingaclearmens rea. e) The evidence let in by the prosecution clearly established that the appellantnotonlyassociatedhimselfwiththeproscribedorganizationbut also professed such an association. The appellant invited support, arranged meetings to further ISIS's activities, and assisted in their organization. f ) AddressingthedelayinproducingtheSection65Bcertificate,thelearned counsel referred to the judgments in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal4 and State of Karnataka (s) v. 4 [(2020) 7 SCR 180)] Crl.A. No.783 of 2024 :2 7: 2024:KER:92808 T.Naseer @ Nasir @ Thadiyantavida Naseer @ Umarhazi@Hazi and Ors5, arguing that such certificates can be submitted at a later stage. g) It is urged that the evidence showed that the appellant sought to radicalize PWs 1 and 2, entered into a criminal conspiracy to further ISIS's activities, and actively garnered support. Itwasfinallyurgedthat the learned Special Judge had evaluated the evidence in its entirety, properly applied the legalprinciples,andrightlyarrivedatthefindingof guilt. 25. We have carefully considered the submissions advanced and have carefully gone through the evidence and the entire records produced before the Court. The evidence tendered by the prosecution to provethe charge: 26. The prosecution examined PWs 1 and 2 to establish that they were initially ISIS sympathizers. After seeing the messages and posts ofthe accused on social media and instant messengers, they got intouchwiththe 5 [2023 SCC OnLine SC 1447] Crl.A. No.783 of 2024 :2 8: 2024:KER:92808 accused. He invited theirsupportforISISandpersuadedthemtofurtherthe activitiesoftheproscribedorganization.TheprosecutionexaminedPW4,PW5, PW9, and PW13 to bring home the point that they had occasion to closely interact with the accused, and by his words and actions, he showed his affiliation to ISIS and looked down onMuslimswhoacceptedthedemocratic principles.Theyalsoadduceddigitalevidencetoprovethechargeagainstthe accused. We shall first deal with the oral evidence. A. The Oral Evidence: 26.1. When examined before the Court, PW1 stated that he had furnishedastatementbeforetheInvestigatingOfficerinJune2019andbefore thelearnedMagistrateinSeptember2019.Henarratedhisfamilybackground and stated that he had completedhisEngineeringDegree.Accordingtohim, he studied uptotheXstandardinSaudiArabia.From2012onwards,hehas been using a smartphone for chatting and accessing social media. On Facebook, his profile name was initially "Muhammed Faizal," which he later changed to "Abu Marwan." In 2017, he came across a Facebook post by a person named "Sameer Ali," which provided information about ISIS, its Crl.A. No.783 of 2024 :2 9: 2024:KER:92808 concepts, and ideologies. In the comment box, he found references to Gold Dinar, Millath Ibrahim, and Al Muhajir, which were links to certain Telegram (instant messenger) IDs. He subscribed to these posts and chats, and his Telegram ID was "Kirman." In 2018, he began residing in Vytila. Under a Facebook post by the accused proclaiming allegiance to ISIS, he noticed comments made by Aboobaker Sidique under the pseudonym "Abu Esa." He stated that he had two telephone numbers, 9544365682 and 9744448485, both connected to IDEA. These numbers were linked to Telegram IDs, as evidenced by Ext. P2 series Customer Application Forms (CAF). 26.2. In 2015, while at the Kollam bus stand, PW1 witnessed a live accident, which led him to become devout and study Islam more deeply.By 2018,hewasworkingasaSalesSupervisoratCitadelTyres.Duringthistime, he saw a post by Aboobakkar Sidik in the comment sectionoftheaccused's post and directly messagedhim.Hewasaskedwhetherhesubscribedtothe "Khawarij" ideologies. Later, their conversations on Facebook continued, and eventually, PW1 shared his Telegram ID, "Abu Fathima." Subsequently, PW1 andAbubakkerSidik(PW2)metintheparkingareaofLuluMallanddiscussed theprospectsofdoingHijra(migration)toeitherAfghanistanorSyria.During Crl.A. No.783 of 2024 :3 0: 2024:KER:92808 their conversation, PW1 realized that PW2 was more inclined to undertake Hijra with his family and identified him as an ISIS sympathizer. 26.3. On the same day, they met PW2, who introduced PW1 to the accused and shared his Telegram ID, "Mujahid Riyas." Thereafter, PW1 frequently chattedwiththeaccusedonTelegram.HefurtherstatedthatPW2 is a native of Kasaragod,whiletheaccusedisanativeofPalakkad,andboth wereengagedintheperfume(Athar)business.InOctober2018,PW1metthe accusedandPW2atLuluMall,wheretheydiscussedtheprospectsofHijrato SyriaorAfghanistanandjoiningISIS.Mostoftheconversationwasledbythe accused. PW1 stated that he travelled to Lulu Mall from Vytila, while the accused and PW2 arrived together. After this meeting, they proceeded to Marine Drive, Kochi, for a more detailed discussion on ISIS. They had food near Lulu Mall before heading to Marine Drive, where they sat under the Rainbow Bridge and conversed for over an hour. Their discussion revolved around plans for Hijra and joining ISIS. 26.4. Theaccusedexpressedintentionstoestablisha"Wilaya"orcarry outasuicidebombinginIndia.Tojustifyhisactions,theaccusednarratedthe Crl.A. No.783 of 2024 :3 1: 2024:KER:92808 story of Salahuddin Ayyoobi, an Islamic commander, who purportedly sacrificedasoldiertobreachenemyfortifications.Realizingthesuicidalnature of such actions, PW1 and PW2 expressed their disinterest and clarified that their goal was solely Hijra to join ISIS in Afghanistan or Syria. The accused responded by stating that India is alandof"Kafirs,"makingitimpossiblefor Muslimstolivepeacefullyinthecountry.Inresponsetoaleadingquestionby the learned Public Prosecutor about suicide attacks, PW1 stated that the accused had advocated for suicide bombings in India for ISIS. 26.5. After this meeting, they parted ways. In 2019, PW1 went to Qatar,wherehecontinuedchattingwiththeaccusedandPW2.Duringhistime abroad, PW1 fell in love with a girl, which led him to lose interest in ISIS ideologies and ceasecommunicationwiththeaccusedandPW2.Towardsthe end of 2018, PW1 messaged an individual with the Telegram ID "Abdul Khadira"aboutHijra,whoprovidedhimwiththeID"GreenBird1."Later,PW1 learned through newspapers that Riyas Aboobakkar hadbeenarrested.After discussing with hisfamily,hevoluntarilysurrenderedtotheNIA,andmadea true and complete disclosure of all relevant facts. He also surrendered his OPPO mobile phone. PW1 clarified that he had previously used a Huawei Crl.A. No.783 of 2024 :3 2: 2024:KER:92808 mobile phone, which he had sold; it was with that device that he communicated with the accused and PW2. 26.6. ThechatsretrievedfromPW1'sOPPOphonewiththeassistance ofC-DACwereshowntohimincourt.PW1identifiedthechatsandconfirmed that the messages emanating from the number 9544365682 were from his TelegramID,"AbuMarwanNew."Healsoidentifiedthenumber94446454340 as belonging to Riyas Aboobakkar. He recognizedandauthenticatedthechat messages displayed on the screen, despite objections raised by the learned counsel for the accused regarding the non-service of hard copies of the documents. The objections were rejectedasthelearnedSpecialJudgenoted thatsoftcopieshadbeenservedatthetimeoffilingthechargesheet,andthe objection was overruled. 26.7. PW1 admitted to addressing numerous messages to Riyas Aboobakkar as "Akhi," meaning brother. The contents of chat no. 187 were displayed in open court and reviewed by PW1 and counsel on both sides. SpecificchatsweremarkedasExts.P3(a)to(g).PW1clarifiedthattheshared beliefs between himself, PW2, and the accused were rooted in the Salafist Crl.A. No.783 of 2024 :3 3: 2024:KER:92808 ideology of ISIS. During cross-examination, it was suggested that PW1 had influenced Riyas Aboobakkar and not the other way around. It was further implied that PW1 and PW2 wereinstrumentalinpropagatingISISideologies. PW1 denied these suggestions and affirmed his interactions with Riyas Aboobakkar on social media. 26.8. It would be pertinent to notethatduringcross-examination,no questionswereputtodisputethefactthatPW1,PW2,andtheaccusedmetat Lulu MallandMarineDrive.Instead,thesuggestionwasthatitwasPW1and PW2 who initiated these meetings and the appellant was merely a passive partner. The witness denied the suggestion that Riyas Aboobakkar had declinedtobecomeanapproverandthatPW1andPW2hadturnedapprovers at the instigation of the NIA. 27. PW2, Abubakkar Sidik, stated that during 2009-2010, hejoined theMujahidestablishmentafterlisteningtothespeechesofMujahidBalussery and Hussain Salafi on YouTube. From2011to2014,hewasemployedinthe Gulf, and in 2017, he returned to India. Upon returning from the Gulf, he began attending the Salafi Mosque for prayers and religious study, later Crl.A. No.783 of 2024 :3 4: 2024:KER:92808 frequenting the Kuniya Salafi Mosque at Kasaragod. There, he befriended AbdulRahmanandbecameacquaintedwithBilal(PW4),whowasengagedin the sale of Attar (perfumes). PW4 invited Abdul Rahman and PW2 to Ernakulam to assist in thebusiness.Consequently,PW2arrivedinErnakulam in 2018. 27.1 He stated that he subscribed totwonumbers,9633040454and 9895557040, and in 2017, acquired new connections with numbers "7902371829"(CAF-Ext.P5)and"7994692007"(CAF-Ext.P6).Usingthese mobile phones, he interacted on social media and Telegram, where his TelegramIDwas"AbuEsa."ThispseudonymwasalsousedbyISISfollowers, including Rashid Abdulla (A1). Later, PW2 changed his Telegram ID to "Abu Fathima" and interacted with A1 through Facebook. PW2 stated that, after seeing A1's messages criticizing Salafis, Dammajis, Sunnis, and Saudis, he decidedtoconnectwithRiyas,whohadpostedcontentsupportingISIS.PW2 and Riyas exchanged phone numbers and interacted frequently through Telegram and WhatsApp. 27.2. During this period, a Facebook user withtheprofilename"Abu Crl.A. No.783 of 2024 :3 5: 2024:KER:92808 Marwan" messaged PW2, asking whether he was a Khawarij. They began communicating through Facebook Messenger, and PW2 later identified "Abu Marwan" as Mohammed Faizal (PW1). In conversations with PW1, PW2 realizedthatFaizalwasalsoanISISfollowerinterestedinHijra(migration)to AfghanistanorSyriatobecomeamartyr.Thetwodecidedtomeetinperson, and in 2018, after discussing Hijra, PW1 introduced PW2 to Riyas, providing him with Riyas' contact details. PW2 stated that Riyas had connections with individuals following ISIS ideology. 27.3 In August or September 2018, PW2 invited Riyas to Ernakulam to engage in the Attar business. Riyas was introduced to Muhammed Hafiz (PW9) and began residing at his house. PW2 and Riyas often met, shared meals, and discussed Hijra.RiyasfrequentlyclaimedthatIndiawasalandof "Kafirs" (infidels) and that such individuals should be eliminated, as per his interpretationoftheQuran.RiyasalsoattendedprayersattheJama-at-Islami Mosque in Manjali but prayed separately, explaining that other attendees supported democracy, which he opposed. 27.4. Approximately a week later, Riyas moved toKodungalloor.Ona Crl.A. No.783 of 2024 :3 6: 2024:KER:92808 subsequent Friday, PW4 (Muhammed Bilal), PW13 (Salahudeen V.S.), PW5 (Noushad), and CW9 (Ahammed Arfad) gatheredatPW9'shouse,alongwith PW2 and Riyas. During this meeting, PW5andPW13confrontedRiyasabout his comments against Saudi Arabia and his practice of praying separately, identifying them as aligned with ISIS ideologies. Riyas remainedsteadfastin hisviews.Later,RiyasexpressedadesiretomeetPW1inperson,whichPW2 communicated to PW1. In October 2018, PW2 and Riyas met PW1 at the parking area near Lulu Mall, Ernakulam. The three, all ISIS sympathizers, discussed Hijra, with Riyas leading the conversation. They moved to Marine Drive, Ernakulam, for a more private discussion, sitting near the bridge for over an hour. 27.5. During the discussion, PW2 expressed his inabilitytoundertake Hijra due to financial issues. Riyas assured him that brothers in Afghanistan andSyriawouldassisthimandstatedthatfinancialconstraintswerenotvalid reasons to avoidHijra.PW1similarlyexpressedhisinabilitytodoHijra.Riyas then suggested they could carry out Istishhad Operations (martyrdom or suicide attacks) in India, claiming ISISwouldsupportthem.WhenRiyaswas remindedthatsuicideoperationswerenotanapprovedformofcourtingdeath Crl.A. No.783 of 2024 :3 7: 2024:KER:92808 in Islam, he narrated the story of Salahudeen Ayoobi, a commander who persuaded his soldiers to throw him into an enemy fort to open its gates, leading to victory. This story was intended to persuade PW1 and PW2 to embrace martyrdom, but they were unimpressed and distanced themselves from Riyas. 27.6. Two days later, Riyas returned home. Subsequently, PW2 informedRiyasthathisserviceswerenolongerneeded,astheirideologiesdid notalign.Thereafter,RiyascontactedPW2onlysporadically.PW2readbooks, reconsidered his actions, and distanced himself from ISIS ideologies. NIA officers later raided his home, seizing books and his Redmi mobile phone (MO1). PW2 identified this phone and confirmed that his chats with Riyas occurred on Telegram. 27.7. Riyas had forwarded PW2 links to Telegram channels like "Al Mujahid" and "Gold Dinar," as well as Facebook links to speeches by Safran Hashmi and approximately 40 voice clips of RashidAbdulla,anISISmember advocating martyrdom. PW2 identified voice clips marked as Exts. P3(a)and P3(b)andaphotographofRiyaspointingtothesky,markedasExt.P3(c),as Crl.A. No.783 of 2024 :3 8: 2024:KER:92808 an ISIS gesture. He identified Ext. P3(d), an ISIS flag image featuring Abu Bakr al-Baghdadi, the leader of ISIS. PW2explainedthatpledgingallegiance (Bay'ah) to Baghdadi indicated loyalty to ISIS. He identified Ext. P3(e) as a message advocating leaving India to join ISIS and authenticated his mobile numbers and contactlistsmarkedasExts.P3(h)toP3(j).Healsorecognized Exts. P3(k) and P3(l), voice clips encouraging martyrdom as a religious duty. 27.8. Incross-examination,PW2wasaskedwhetherhewasanactive ISIS member and had introduced Riyas to ISIS ideologies. He admitted that his meetings with PW1 often involved discussions about ISIS but reiterated that it was Riyas who narrated the story of Salahudeen Ayoobi. PW2denied forwarding objectionable content to Riyas or persuading him to undertake Hijra during their meetings at Lulu Mall and Marine Drive. He refuted suggestions that his testimony was influenced by NIA officers to falsely implicate Riyas for refusing to become an approver. 28. PW4 is oneMuhammedBilal.Hestatedthathewasengagedin the Attar business. He is acquainted with Muhammed Hafiz (PW9),whowas also engaged inthesamebusiness.OnFridays,theyusedtogototheSalafi Crl.A. No.783 of 2024 :3 9: 2024:KER:92808 Mosque at Neerikodu. He got acquainted with Riyas Aboobakkar during one such visit, in the month of August 2018. He identified the accused whowas standing in the dock. He stated that PW9 called him and informed him that Riyas was not praying along with others and that his ideology differed from others.Later,theydecidedtoinvitePW5(Nawshad)andPW13(Salahudheen) to advise Riyas, for which purpose, PW9 hosted a feast in his residence. Duringthefeast,PW5andPW13triedtointerprettheQuranandtoconvince Riyas that his ideology and concepts were against the basic tenetsofIslam. Riyas, however, refused to heed to their advice and rejected the same with sarcasm.Theyfoundhiscommentstobeuglyandhisideologiesalignedwith thatofterroristorganizationslikeISIS.Afterthesaidmeeting,PW5andPW13 suggestedthatRiyasbeavoided.Incross-examination,certainomissionswere brought out. He stated that certain comments said to have been made by Riyas and stated by him in chief examination,werenotstatedbyhimtothe police. 29. PW5isNowshad.HestatedthathewasworkingasaKhateebin aMosque.Accordingtohim,in2018,heworkedintheKuniyaSalafiMasjidat Kasaragod.DuringAugust2018,hewasinvitedtotheresidenceofPW9,fora Crl.A. No.783 of 2024 :4 0: 2024:KER:92808 feast. PW2, PW4, PW13, PW9, and the accusedamongotherswerepresent. In the courseoftheget-together,RiyasspokeagainstSaudi.Healsousedto offer prayers alone, without joining with the others. PW5 tried to cite the Quran and the teachings therein, so astopersuadehimtochangehisways. However,Riyasdidnotheedtohisadvice.Hethenadvisedtheotherspresent theretokeepadistancefromRiyas.Thoughhewascross-examinedinlength, nothing worthwhile was brought out to doubt his version. 30. PW9isoneMuhammedHafiz.Hestatedthathewasengagedin the Attar business.HecontactedPW2andrequestedforsuggestingaperson to assist him in his business. As suggested by PW2, Riyas came and joined him. They used to stay together and also go to the Mosque. He found that Riyas never offered prayers by standing along with others.Heusedtostand separatelyandofferhisprayers.Whenheenquired,Riyastoldhimthatothers were followers ofdemocracyandthathecouldnotofferhisprayersstanding alongwiththem.Afteraweek,RiyaswenttoKodungalloor.Hestatedthathe hadhostedafeast,duringwhichPW5andPW13attemptedtoadviseRiyasto change his ways. However, he did not budge. He was told by his friends to avoid Riyas and accordingly, he was sent off. The said witness was also Crl.A. No.783 of 2024 :4 1: 2024:KER:92808 subjected to searching cross-examination, but he struck to his original version. 31. PW13 is Salahudheen,anArabicTeacher.Hestatedthathehad worked as a Khateeb in a Mosque at Neericode. HeisacquaintedwithPW4, PW5, PW9, and the accused. PW9 told him that Riyas was in the habit of offering his prayers bystandingseparatelyfromothers,andhewasaskedto offer him some advice. As requested, PW13 and PW5 talked to Riyas and requested him to mend his ways. However, Riyas did not heed their advice. B. The Digital Evidence: 32. As stated earlier, on 07.05.2019, the extraction of the data in Gmail and Facebook of the accused were carried out by the investigating officer, with the assistance of PW16, an IT Expert, in the presence of independent witnesses. The screenshot of the entire proceedings was taken and it was pasted in Ext.P7 Word Document. The entire data was copied to Ext.P23 DVD, and it is accompanied by Ext.P23(l) Certificate issued under Section 65B of the Indian Evidence Act, 1872. 33. WhenexaminedbeforetheCourt,PW16narratedthemannerin Crl.A. No.783 of 2024 :4 2: 2024:KER:92808 which the data was extracted by him, in the presence ofthewitnesses.The accused had furnished his e-mail address, which was '[email protected]', and hisFacebookID,whichwas'abudujana'.The Google account as wellasFacebookwasassessedusingthecomputeratthe IT wing on the NIA. The entire data was downloaded andthescreenshotof the variousstepstakenwerecopiedandpastedinaWordfile.TheFacebook account was then opened and the entire data was downloaded. The screenshot of the proceedings wastakenandthesamewaspastedinExt.P7 Word file. The entire data was then copied to Ext.P23 DVD. In cross-examination, he stated that the certificate under Section 65B of the Indian Evidence Act was produced before the Court, only on the date ofhis examination before the Court. The Data extracted include: a) Facebook Data: Ext.P23(b): Contact list of the accused. Ext.P23(c): Comments made by the accused. Ext.P23(d): Details of followers. Ext.P23(e): Accounts followed by the accused. Ext.P23(f): Folder containing Facebook friends of the accused. Crl.A. No.783 of 2024 :4 3: 2024:KER:92808 Ext.P23(g): ctivities in Facebook groups of which the accused was a A member. Ext.P23(h): Comments and posts made by the accused in the groups. Ext.P23(i): Facebook pages liked by the accused. Ext.P23(j): Chat data in the Facebook message inbox. Ext.P23(k): Facebook chats made by the accused. Ext.P23(l): Photos posted by the accused. Exts.P23(m) and P23(n): Videos posted by the accused. b) Google Data: Ext.P23(o): History of Google search data. Ext.P23(p): Profile photo of the accused in his Google account. Ext.P23(q): Search data of images searched on Google. Ext.P23(r): Google search data. c) YouTube Data: Ext.P23(s): YouTube search data. Ext.P23(u): YouTube search history data. Ext.P23(v): YouTube data history of watched videos. d) Other Data: Ext.P23(t): Photos used as profile photos in Google. e) Call Detail Records (CDRs): TheprosecutionreliedonCDRsofmobilenumberslinkedtotheaccused Crl.A. No.783 of 2024 :4 4: 2024:KER:92808 and other key individuals. The records were issued by the respective Nodal Officers and include: Ext.P20: C DR for mobile number 7994692007, subscribed in the name of PW2. Ext.P21: C DRformobilenumber9446454340,subscribedinthenameofthe accused. Ext.P25: C DR for mobile number 7902371829, subscribed in the name of PW2. Ext.P26: C DR for mobile number 9544365682, subscribed in the name of PW1. Ext.P28: A nother CDR for mobile number 9446454340, subscribed in the name of the accused. Ext.P27: Decoded list of these records. All the above records were accompanied by certification under Section 65B of the Indian Evidence Act, 1872. C. DATA from the mobile phone, SIM card, and Memory Card of the accused: 34. PW12,Dy.S.PofNIA,KochiBranch,conductedasearchofHouse No.16/717, where the accused and his parents resided. Theaccusedandhis parents were present during the search. During the search, the accused Crl.A. No.783 of 2024 :4 5: 2024:KER:92808 handed over his mobile phoneandaSIMcardtotheNIAofficials.SixDVDs, tworeligiousbooks,twodiaries,andanoldairgunwereseizedasperExt.P12 search list. Ext.P13 mobile phone, Ext.P13(a) SIM card, and Ext.P13(b) memory cardwereseizedbyPW12.PW10,theVillageOfficer,confirmedthat he witnessed the search conducted by PW12. PW11, the Secretary, MuthalamadaGramaPanchayath,issuedExt.P19,theownershipcertificatefor House No.16/717, confirming that the house belonged to Illias, S/o. Aboobakkar, as recorded in the assessment register. The investigating officer produced these items before the court along with Ext.P37 forwarding note,requestingtoforwardthesametothe C-DACforforensicexamination. A mirror image of the data contained in the seized items was obtained by C-DACforanalysis.PW21,Scientist-FofC-DAC,deposedthatheconducteda forensic examinationofthedigitaldevicesreceivedfromthecourt.Ext.P30is thereportpreparedbyhim,andExt.P31isthesoftcopyofthecyberforensic analysisdata.Ext.P32isthecertificationissuedbyPW21underSection65Bof the Indian Evidence Act, certifying the authenticity of the retrieved data. Measures were taken to ensure that the digital devices in Ext.P13 (series), seizedfromtheaccused'sresidence,wereforwardedtotheCourtandthento Crl.A. No.783 of 2024 :4 6: 2024:KER:92808 theC-DACinatamper-proofcondition.TheseitemswereforwardedtoC-DAC as per Ext.P37, where PW21 conducted a forensic examination, with the retrieved data stored in Ext.P31 Pendrive. PW21 deposed that he examined the mobile phone marked as Ext.P13, referred to as Evd01(a) in his report. TheSIMcard,Ext.P13(a),wasreferredtoasEvd01(b),theBSNLSIMcardas Evd01(c), and the memory card, Ext.P13(b) as Evd01(d). Details of these items weredescribedinChapterIII,page6,ofhisreport,includingthehash values created for the items sent for examination. The data extracted from Ext.P13 (Evd01) mobile phone was separately marked as under: A. Social media application chats (Ext.P31(c)). B. Audio files (Ext.P31(d)). C. Documents (Ext.P31(e)). D. Images (Ext.P31(f)). E. Video files (Ext.P31(g)). F. Extracted report of the data (Ext.P31(h)). G. Report of call logs (Ext.P31(i)). H. Contact details in the mobile phone (Ext.P31(j)). I. Search history (Ext.P31(k)). J. Facebook chats (Ext.P31(l)). Crl.A. No.783 of 2024 :4 7: 2024:KER:92808 K. Telegram chats (Ext.P31(m)). L. WhatsApp chats (Ext.P31(n)). M. Web history (Ext.P31(o)). N. Detailed call logs (Ext.P31(p)). O. Detailed contact data (Ext.P31(q)). P. Keyword search data (Ext.P31(r)). Q. Documents in the memory card (Ext.P31(t)). R. Deleted or overwritten audio clips (Ext.P31(q)). S. Deleted or overwritten audio files (Ext.P31(w)). T. Normal audio files (Ext.P31(x)). U. Deleted or overwritten video files (Ext.P31(aa)). V. Normal video files (Ext.P31(ab)). W. Deleted or overwritten picture files (Ext.P31(ac)). X. Normal picture files (Ext.P31(ad)). ThesearchhistoryinExt.P31(k)revealedspecificYouTubesearchesconducted by the accused, including: A. n 13.02.2018: Searches for "ISIS 53 voice clips in Malayalam" and O "ISIS 53 voice clips." B. On 10.01.2018: Search for "ISIS new videos." C. On 09.01.2018: Search for "ISIS Malayalam news." Crl.A. No.783 of 2024 :4 8: 2024:KER:92808 D. On 28.12.2017: Search for "most wanted ISIS members in Kerala." E. On 23.12.2017: Search for "ISIS new Malayalam news." F. On 18.12.2017: Search for "refutation of Zakir Naik." G. On 10.12.2017: Search for "MM Akbar speech about ISIS." H. On 06.12.2017: Search for "ISIS Malayalam voice clips." I. On27.11.2017:Searchesfor"RashidAbdullaallvoiceclips"and"ISIS ashid Abdulla voice clips." R J. On 17.11.2017: Searches for "Rashid Abdulla Malayalam voice clips," " Rashid Abdulla voice clips," and "Abdulla Al Rashid." K. On 17.10.2017: Search for "who arrested the Australian ISIS member." 35. PW22 deposed that one of the voice clips, marked as Ext.P31(d)(9), contains the voice of the accusedintroducinghimselfasRiyas from Palakkad. Ext.31(e)(1) is the PDF document of a "Rumia" magazine, whichisstatedthereinthatitistheofficialmagazineofISIS.Ext.P31(g)(1)is a video of ISIS militants which also displays the ISIS flag. Ext.31(e)(3) is another PDF document of "Dabiq" magazine, the mouthpiece of ISIS. Ext.31(e)(4) is the Malayalam translation of a speech rendered by Abu Bakr al-Baghdadi.Ext.31(e)(9)isanISISpublicationcontainingimagesofAbuBakr al-BaghdadiandofISISmilitants.Ext.31(e)(12)isaPDFdocumentcontaining Crl.A. No.783 of 2024 :4 9: 2024:KER:92808 a picture of ISIS flag. Ext.P31(g)(2) contains a video showing burned dead bodies. Ext.P31(g)(3) to Ext.P31(g)(6) consist of videos related to ISIS. Ext.P31(g)(7) includes propagandist videos of ISIS with English subtitles, promoting the ideology that everyone should becomemilitants,killpeopleof other faiths, and liberate various regions worldwide, including Kashmir. Ext.P31(g)(8) to Ext.P31(g)(30) contain videos of Zakir Naik. Evaluation of the Evidence: 36. IthascomeoutfromtheevidenceofPWs1and2thattheyare known to each other and also that they had constant interactions with the accused, through various social networking sites. It was through PW2 that PW1 got in touch with Riyas Aboobakker. The evidence tendered by them discloses that PW1 was holding two mobile connections bearing subscription numbers 9544365682 and 9744448485. Ext.P2 series, Customer Application Forms (CAF) would clearly prove the same. Similarly, the prosecution had successfully proved by the production of Exts.P5 and P6 series Customer Application Forms (CAF) that subscriber numbers 7902371829 and 7994692007, are that of PW2. As is revealed from Ext.P3(h), the contact Crl.A. No.783 of 2024 :5 0: 2024:KER:92808 numberofPW2issavedintheSIMcardoftheaccused.Ithasalsocomeout that the contact numbers of PW1 and PW2 were found in the contact list saved in the sim card of the phone of the accused, as is borne out from Ext.P3(g). Ext.P22 is the CAF of the Mobile Phone bearing number 9446454530,belongingtotheaccused.Ext.P20istheCallDataRecordofthe mobilephoneofPW2,Ext.P26istheCallDataRecordofthemobilephoneof PW1, Ext.P21 and Ext.P28 are the Call Data Records of themobilephoneof theaccused.Theconstantcontactsbetweentheaccused,PW1,andPW2are provedbytheabovedocuments.Ext.P23(b)theaddressbookofFacebookof the accused also contains the contact details PW1 and PW2. Ext.P3 are the chat transcripts retrieved from "chat-187.text". These records emphatically prove the prosecution case thatPW1andPW2wereinconstantcontactwith the accused through instant messaging applications, direct calling, and through Facebook Messenger. Furthermore, we also find that the accused is notdisputingthathewasinconstanttouch,buthiscontentionisthathewas persuaded by PW1 and PW2. 37. BothPWs1and2statedthat,afterhavingvirtualinteractionfor quite some time, PW1 decided to meet the accused in person. In October Crl.A. No.783 of 2024 :5 1: 2024:KER:92808 2018,PW2andRiyasmetPW1,attheparkingareanearLuluMall,Ernakulam andtohavemoreprivacy,theyshiftedtheirmeetingtothebridgenearMarine Drive, Ernakulam. Ext.P20 (CDR of PW2), Ext.P26 (CDR of PW1), Ext.P28 (CDR of accused), and Ext.P27 (Decoded Cell ID List) substantiate the fact that such a meeting had taken placeatthetimeanddate.Wealsofindthat the accused also does not dispute thatsuchameetinghadtakenplace.The suggestionputtothewitnesseswasthattheaccusedwasbeingpersuadedby PWs 1 and 2 to follow the ideology of ISIS and to do Hijra, which he refused. 38. The evidence tendered by PWs 1 and 2 is corroborated by the evidence extracted from the digital devices. The interaction between the appellant, PW1, and PW2, isdiscerniblefromExt.P20(CDRofPW2),Ext.P26 (CDRofPW1),Ext.P28(CDRofaccused),andExt.P27(DecodedCellIDList), and Ext.P3 chats. This aspect of the matter is not even disputed by the accused. Ext.P20 CDR, details the calls throughmobilephone,betweenPW2 (mobilenumber7994692007),andtheaccused(mobilenumber9446454530), on various days between30.07.2018,and22.01.2019.Similarly,Ext.P20CDR also details the calls between PW2 (mobile number 7994692007) and PW1 (mobile number 9744448485) on various days between 03.10.2018 and Crl.A. No.783 of 2024 :5 2: 2024:KER:92808 28.12.2018. Ext.P21 details the calls between the accused (mobile number 9446454530), and PW2 (mobile number 7994692007). Ext.P28 gives the details of the calls between the accused (mobile number 9446454530) and PW2 (mobile number 7994692007), between 08.08.2018 and 18.03.2019. Ext.P28 CDR details the calls between the accused (mobile number 9446454340), and PW1 (mobile number 9744448485). These records emphaticallyshowthattherewereconstantinteractionsbetweentheaccused and PWs 1 and 2. Exts.P20, P26,P27,andP28(decodedCellIDlist),clearly show that the appellant and PWs1and2,werefoundatthesametimeand place at Edappally North, Ernakulam and at Marine Drive Walkway on 26.10.2018.Furthermore,thepresenceoftheappellant,PW1andPW2isnot disputed by the accused, even while cross-examining PWs 1 and 2. As the defence has not disputed the presence of PWs 1 and2withtheaccused,at Edapally,nearLuluMallandatMarineDriveWalkway,Ernakulam,itcannotbe said that their presence at the place and time has not been established. 39. PWs 1 and 2 had deposed that the accused harboredintention and planned to executeasuicideattackinIndia.Ext.P23(i)revealedthatthe accused liked the English video pages of Dr. Zakir Naik, a person who has Crl.A. No.783 of 2024 :5 3: 2024:KER:92808 been banned by the Government of India under the UA(P) Act. Ext.P23(j) revealed thattheaccusedhadchattedwithZahranHashim,anISISleaderin Sri Lanka who carried out the suicide attack known as the "Easter Blast" in April 2019. Ext.P23(l) is a message by the accused which essentially meant that no one can defeat Islam and that the accused and his brothers were jihadistsevenwhiletheywereinthewomboftheirmother.Therearepictures posted by the accused on Facebook on 03.03.2016, 23.03.2016, and 19.06.2016 wherein he is seen pointing his index finger upwards. It is well knownthatIslamicMilitantsowingallegiancetoISISuseasingleraisedindex finger as the symbol of their cause. It is a well-known sign of power and victoryaroundtheworld,butforISIS,ithasamoresinistermeaning.Thesaid gesture refers to the tawhid, "the belief in the oneness of God and a key componentoftheMuslimreligion."Morespecifically,though,itreferstotheir fundamentalist interpretation of the tawhid, which rejects any other view, including other Islamic interpretations, as idolatry. ISIS uses the gesture to affirm an ideology that demands the destruction of the West,aswellasany form of pluralism, and thus to dominate the world. 40. The accused uploaded a photograph of himself on 28.02.2018 Crl.A. No.783 of 2024 :5 4: 2024:KER:92808 withthetagline"STANDWITHSYRIA,"followedbyastatementindicatingthat he is waiting forthatday.Anotherpost,markedasExt.P23(l),proclaimsthat "Islam will dominatetheworld,andFreedomcangotohell."Inapostdated 14.10.2017,theaccuseduploadedhisphotographsportingabeardandwrote thatthereisnoneedtoconvinceanyone,andothersarefreetoassociatehim with Syria or Afghanistan. He further stated that whatever is required will happen. The accused also posted a message on 28.02.2018 exhorting his friends to "STAND WITH SYRIA." Posts marked as Ext.P23(l)(1) to Ext.P23(l)(10) contain statements such as "YoucankillMuslims,butyoucan never kill Islam," and declarations thatheandothersare"themujahideenof Islam." Ext.P3(m) to Ext.P3(y) are voice clips associated with Abdul Rashid Abdulla. In Ext.P3(k), the voice clip describes the method of carrying out a suicide attack. PW20 deposed that he recognized the voice as belonging to Abdul Rashid Abdulla and identified the voice clips. Ext.P23(o) contains the Google search history of the accused, which reveals that he searched for termssuchas"ZahranHashim,""AbuMaryamAl-Balkani,""AbuEsa,""Sameer Ali,""AbdhulGhayoob,"and"Midhilaj."PW22deposedthatZahranHashimwas theSriLankanISISleaderandthisfactisnotdisputed.Itwasbroughtoutin Crl.A. No.783 of 2024 :5 5: 2024:KER:92808 evidencethatAbuEsaistheKuniya(alias)oftheoriginalfirstaccused.PW22, while tendering evidence stated that Sameer Ali was the Facebook ID of Shajeer Mangalaserry, a Keralite who joined ISIS and was later killed in Afghanistan, with the Facebook ID subsequently used by the original first accused.HehadalsostatedthatAbdhulGhayoobisanabscondingaccusedin another ISIS case under investigation by the NIA and that Midhilaj is a convicted accused in the Valapattanam ISIS case. Additionally, PW22 stated that Nimisha Fathima, an accused inthePalakkadISIScase,joinedISISand subsequently migrated to Afghanistan. 41. Ext.P23(p)(1) reveals that the profile photo displayed isofISIS militantsraisingtheISISflag.Ext.P23(q)(1)searchesinGooglewhichreveals that on 30.03.2016, the accused searched for details about Sheikh Anwar Al-Awlaki in Malayalam. On 21.06.2016, searcheswereconductedforimages of Abu Bakr al-Baghdadi andHizbulMujahideen.On11.04.2017,theaccused searched for an image of Shibi, missing people in Palakkad, and on 23.05.2017, he searched for images of Indian Mujahideen. While tendering evidence,PW22statedthatSheikhAnwarAl-Awlakiwasaclericwhopreached violent Jihad in English. PW22 identified Baghdadi as Abu Bakr al-Baghdadi, Crl.A. No.783 of 2024 :5 6: 2024:KER:92808 the founderandfirstCaliphofISIS.HefurtherstatedthatHizbulMujahideen is a banned terrorist organization operating in Kashmir and that Shibi is an accused in the Palakkad ISIS case.Ext.P23(v)pathrevealsthewatchhistory of the accused's YouTube searches on 03.12.2018. These searches include topics such as "How to make a Coca-Cola color smoke bomb - FoBIRD," "IslamicState's'chlorinegas'bombs-BBCNews,""Howtomakeagasbomb," "Insidethemindofasuicidebomber,"and"HowToMakeACarBomb."PW22 statedthatthevoiceclipsmarkedasExt.P3(m)toExt.P3(y)containthevoice of the original first accused, Abdul Rashid Abdulla, advocating ISISideology. These clips urge all true Muslims to join ISIS. Ext.P3(k) voice clip of Abdul Khayoom,detailsthemannerinwhichIstishhadOperationistobecarriedout. The said voice clip starts with a remark that the said clip is intended to be heard by Malayalis and comes from 'Dawlat al Islam' meaning ISIS. It says that true believers are those who will reach paradise in exchange for their wealth and bodies. The clip says that the Istishhad Operation (Martyrdom) was performed even before the establishment of theCaliphateofIslam.The clip glorifies the 19 brothers, who crashed Airplanes into the World Trade CenterintheUSandcarriedouttheIstishhadOperation.Itsaysthatthose19 Crl.A. No.783 of 2024 :5 7: 2024:KER:92808 persons are the lions of the century and that they had acted under the leadership of Osama Bin Laden. 42. Exts.P23(c)(1)toP23(c)(25)aremessagesinMalayalamposted by the accused on socialmedia,eitherindependentlyorinresponsetoother posts,aspartofaconversation.Forinstance,inthemessagemarkedasExt. P23(c)(6), the accused asks hisfriendswhethertheyarepreparedtodeclare wartosecure"Deen"(thewayoflifethatMuslimsmustfollowtocomplywith divinelaw).Heassertsthatifsomeonesitsandeatsriceofferings,thatperson willlackthebraverytocommittowar.Heproclaimsthatifthepersonagrees to Jihad, not a single non-believer would remain in the world, and only two groupsofpeoplewouldexist:thosewhocommitShirk(asin,oftentranslated as idolatry or polytheism) and those who do not.Inthemessagemarkedas Ext.P23(c)(7), the accused queries his friends and followers about whether anyactionsbyISIScanbeconsideredagainstthetenetsofIslam.Hefurther remarks in the same message that India is assisting ineradicatingISIS,and questionswhetheritis"Haram"(forbiddenunderIslamiclaw)toliveinIndia. Ext.P23(c)(15)containsamessagewheretheaccusedsuggeststhatvotingin a democracy like India amounts to Shirk. InExt.P23(c)(16),theaccusedhas Crl.A. No.783 of 2024 :5 8: 2024:KER:92808 posted a message to Thanseer, wherein he states that Prophet Muhammed has exhorted that "Kafirs who are competent to fight in a war are to be murdered.Ifthatbethecase,isn'titwrongforyoutosaythatyoucan'tfight against persons who do not take part in the war?". In Ext.P23(c)(21), the accused states that Muslims do not hold power in India, and warns that if Muslims denigrate their religion, Kafirs (non-believers) mayabuse"Allah".He further states that anyone who abuses "Allah" may lose their tongue. In Ext.P23(c)(22), the accused advises Muslims not toshowloveoraffectionto people who follow other faiths. In Ext.P23(c)(25), the accused declares that respecting Kafirs is an act of stupidity. PW4, PW5, PW9 and PW13 has also spokenaboutthedifferingideologyandsolitaryprayerhabitsoftheaccused. They had attempted to advise the accused and to enlighten him the true meaning of the Quran but the accused had sarcastically rejected their interpretation of the Quran and expressed views aligned with terrorist ideologies like ISIS. PW5 and PW13 had even suggested that it would be better for them to distance themselves from the accused. The evidence accusedhasemphaticallyshownthattheaccusedwasassociatinghimselfwith ISISandpromotingitsideologytofurtheritsactivities.Italsorevealsthatthe Crl.A. No.783 of 2024 :5 9: 2024:KER:92808 accused was radicalized through the ideologies of ISIS, a terrorist organization,thattheyenteredintocriminalconspiracytofurtheritsactivities and to garner support for the terrorist organization by migrating to ISIS controlled territories like Syria, Iraq, and Afghanistan. The evidence also discloses that the accused associated himselfandprofessedtobeassociated withISIS,withintenttofurtheritsactivities,andthattheaccusedwithintent to further the activity of the terrorist organization, invited support for the terrorist organization and thereby committed the offences punishable under S.120B of IPC r/w S.38 and 39 of UAPA and S.38 and 39 of UA(P) Act. Evaluation of the contentions advanced by the appellant: A.Validity of the Sanction order: 43. The first contention advanced by the learned counsel is with regardtothegrantofsanction.Thequestioniswhethertherespondentshave complied with Section 45(2) r/w. Rules 3 and 4 of the Rules, 2008. 44. In order to prove the grant of sanction, the prosecution examined PW18, the Under Secretary to the Government of India, Counter Crl.A. No.783 of 2024 :6 0: 2024:KER:92808 Terrorism and Counter Radicalisation Division (CTCR) Division of the Ministry of Home Affairs. The witness stated that the said Department is responsible for issuing sanctions under Section 45 of the UA(P) Act. He stated that on 10.10.2019, a letter was received from the NIA along with the investigation report and enclosures of evidence seeking sanction of prosecution under Section 45(1) of the Act of the appellant for offences underSection120Bof theIPC,Sections38and39oftheUA(P)Act.Onreceivingthesaidreport,he forwardedthesametotheauthoritysetupunderRule2(b)of Rules,2008for independent review and recommendation. The said authority submitted its report containing the recommendation to the Central Government recommending the issuance of sanction for prosecution against the accused under the Act on 15.10.2019. The said report by the authority set up for independent review along with the report of PW18 was considered by the Central Government and on 18.10.2019, by Ext.P24 order, sanction was issued. PW18 as a duly authorized personhadsignedonthesanctionorder and affixedhisseal. AsperExt.P24,sanctionwasaccordedtoprosecutethe appellant under Sections 38 and 39 of the UA(P)Act. Incross-examination, the suggestion was that Ext.P24 order was issued without any proper Crl.A. No.783 of 2024 :6 1: 2024:KER:92808 application of mind and without any independent review, which the witness denied. He denied the suggestion thatthesanctionorderwasissuedbeyond thestatutorylimit. WefindthatunderSection3ofRules,2008,theauthority is to submit its report containing the recommendations of the Central Governmentwithin7workingdaysofthereceiptoftheevidencegatheredby the investigating officer, and under Rule 3 of Rules, 2008, the Central Government is required to take a decision regarding sanction for the prosecution within 7 working days after receipt of recommendations of the authority. 45. InFuleshwarGopev.UnionofIndiaandOthers6, theApex Court had occasion to elucidate on the principles regarding the grant of sanction under Section 45 of the UA(P) Act. It was observed as under: 18. The UAPA does not provide for any such saving of the sanction. This implies that, in the wisdom ofthelegislature,theinbuiltmechanismofthe Act of havingtwoauthoritiesapplytheirmindtothegrantofasanction,is sufficient. This emphasizes the role and sanctity of the operation to be carried out by both these authorities. In order to challenge the grant of sanction as invalid, the grounds that can be urged are that (1) all the relevant material wasnotplacedbeforetheauthority;(2)theauthorityhas 6 2024 SCC OnLine SC 2610 Crl.A. No.783 of 2024 :6 2: 2024:KER:92808 not applied its mind to the said material; and (3)insufficiencyofmaterial. Thislistisonlyillustrativeandnotexhaustive.Thecommonthreadthatruns through the three grounds of challenge above is that the party putting forwardthischallengehastoleadevidencetosucheffect.That,needlessto say,canonlybedonebeforetheTrialCourt.Inthatviewofthematter,we have nohesitationinholdingthatwhilewerecognisethetreasuredrightof an accused to avail all remedies available to him under law, in ordinary circumstances challenge to sanction under UAPA should be raised at the earliestpossibleopportunitysoastoenabletheTrialCourttodeterminethe question, foritscompetencetoproceedfurtherandthebasisonwhichany other proceedingontheappellatesidewoulddependontheanswertothis question. [See: State of KarnatakavS.Subbegowda2023SCCOnLineSC 911] 46. Inthecaseonhand,theappellanthasnotbeenabletoestablish that the grant of sanction as invalid on any ground which include that the relevantmaterialwasnotplacedbeforetheauthorityorthattheauthorityhad not applied its mind to the said material or that the order is vitiated for insufficiencyofmaterialoronanyothercount.Itisfortheappellanttoplace adequate material or to lead evidence to substantiate the said contention. Having evaluated the entire records, we are of the considered view thatthe order cannot be held to be vitiated on any ground. Furthermore, the time stipulation under Rules 3 and 4 of the Rules, 2008 has been scrupulously complied with. In that view of the matter, the argument advanced by the Crl.A. No.783 of 2024 :6 3: 2024:KER:92808 learnedcounselthatthesanctionorderisvitiatedasithasnotbeenissuedin accordance with law cannot be accepted. B.The evidence of approvers: 47. The next contention is with regard to the credibility of the evidence tendered by PWs 1 and 2. PWs 1 and 2 were originally arrayedas accused Nos. 19 and 20. Based on an application filedbytheNIA,apardon was tendered to the accused by invoking Section 307 of the Cr.P.C. Under Section 307 of the Cr.P.C., discretion is conferred on the Court to tender a pardontoanaccused,withaviewtoobtainingevidence,wherethepersonis directly or indirectly concerned in or privy to any such offence. 48. Itwouldbeappositeatthisjuncturetorefertotheobservations of the Apex Court asregardstheprinciplesthataretobeborneinmindand thecredibilitythatistobeattachedtotheevidencetenderedbyanapprover. InDagduAndOthersv.StateofMaharashtra7, theApexCourtexplained the position in the following words: 20. Before considering that evidence, it would be necessary 7 AIR 1977 SC 1579 Crl.A. No.783 of 2024 :6 4: 2024:KER:92808 to state the legal position in regard to the evidence of accomplices and approvers. Section 133 of the Evidence Act lays down that an accomplice shall beacompetentwitnessagainstanaccusedperson; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Section 114 of the Evidence Act provides that the Court may presume the existence of anyfactwhichitthinkslikelytohavehappened,regardbeinghadto thecommoncourseofnaturalevents,humanconductandpublicand private business, in their relation to the facts of the particularcase. Illustration (b) to Section 114saysthattheCourtmaypresumethat an accomplice is unworthy of credit unless he is corroborated in material particulars. 21.ThereisnoantithesisbetweenSection133andIllustration (b) to Section 114 of the Evidence Act, becausetheillustrationonly says that the Court"may"presumeacertainstateofaffairs.Itdoes not seek to raiseaconclusiveandirrebuttablepresumption.Reading the two together the position which emerges is that though an accomplice is a competent witness and though a conviction may lawfully rest upon his uncorroborated testimony, yet the Court is entitled to presume and may indeedbejustifiedinpresuminginthe generalityofcasesthatnoreliancecanbeplacedontheevidenceof an accomplice unless that evidence is corroborated in material particulars,bywhichismeantthattherehastobesomeindependent evidence tending to incriminate the particular accused in the commissionofthecrime.Itishazardous,asamatterofprudence,to proceed upon the evidenceofaself-confessedcriminal,who,insofar Crl.A. No.783 of 2024 :6 5: 2024:KER:92808 as an approver is concerned, has to testify in terms of the pardon tendered to him. The risk involved in convicting an accused on the testimony of an accomplice, unless it is corroborated in material particulars, is so real and potent that what during the early development of law was felt to be a matter of prudence has been elevated by judicial experience into a requirement orruleoflaw.All thesame,itisnecessarytounderstandthatwhathashardenedintoa rule of lawisnotthattheconvictionisillegalifitproceedsuponthe uncorroborated testimony of an accomplice but that the rule of corroboration must be present to the mind of the Judge and that corroboration may be dispensed with only if the peculiar circumstances of a case make it safe to dispense with it. 49. After referring to the observations in King v. Baskerville8, Rameshwar v. The State of Rajasthan9, Bhiiboni Sahu v. King, and RavinderSinghv.StateofHaryana10,itwasheldthatthetestimonyofan accomplice is evidence under Section 3 of the Evidence Act and has to be dealtwithassuch.Theevidenceisofataintedcharacterandassuchisvery weak;but,nevertheless,itisevidenceandmaybeactedupon,subjecttothe requirement which has now become virtually a part of the law that it is corroborated in material particulars. 8 (1916) 2 KB 658 9 IR 1952 SC 54 A 10 (1975) 3 SCC 742 Crl.A. No.783 of 2024 :6 6: 2024:KER:92808 50. In Haroon Haji Abdulla v. State Of Maharashtra11, it was observed as under: "An accomplice is a competentwitnessandhisevidencecouldbeaccepted andaconvictionbasedonitifthereisnothingsignificanttorejectitasfalse. But the rule of prudence, ingrained in the consideration of accomplice evidence, requires independent corroborative evidence first of the offence and nextconnectingtheaccused,againstwhomtheaccompliceevidenceis used, with the crime." 51. In Ravinder Singh v. State of Haryana, it was laid down as follows: "An approver is a most unworthyfriend,ifatall,andhe,havingbargained forhisimmunity,mustprovehisworthinessforcredibilityincourt.Thistest isfulfilled,firstlyifthestoryherelatesinvolveshiminthecrimeandappears intrinsicallytobeanaturalandprobablecatalogueofeventsthathadtaken place. The story if given of minute detailsaccordingwithrealityislikelyto save it from being rejected brevi manu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible. Ordinarily, however, an approver's statement has to be 11 [A IR 1968 SC 832] Crl.A. No.783 of 2024 :6 7: 2024:KER:92808 corroboratedinmaterialparticularsbridgingcloselythedistancebetweenthe crimeandthecriminal.Certainclinchingfeaturesofinvolvementdisclosedby an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, wouldgivetheneeded assurance for acceptance of his testimony on which a conviction may be based." 52. Whathasbeenlaiddownaboveisthatanapprover'sevidenceto be accepted must satisfy two tests. The first test to be applied is that his evidence must show that he is a reliable witness. That is a test that is commontoallwitnesses.ThetestobviouslymeansthattheCourtshouldfind that there is nothing inherently improbable in the evidence tendered by the approver. The second test which thereafter still remains to be applied inthe case of an approver, and which is not always necessary when judging the evidence of other witnesses, is that his evidence must receive sufficient corroboration. This is not to say that the evidence of an approver hastobe consideredintwowater-typecompartments;itmustbeconsideredasawhole along with other evidence. [See: Lachhi Ram v. State of Punjab12, Saravanabhavan and Govindaswamy v. State of Madras13] 12 [ AIR 1967 SC 792] 13 [AIR 1966 SC 1273] Crl.A. No.783 of 2024 :6 8: 2024:KER:92808 53. HavingevaluatedtheevidenceofPWs1and2,wefindthatboth of them were young men, who were persuaded by the inflammatory messages, voice clips, and videos forwarded to them by theappellant.Their version before the Court is sufficientlycorroboratedbytheCallDataRecords anddigitalevidence.Weareoftheviewthatthecontentionsadvancedbythe learnedcounselappearingfortheappellantisthattheyareunreliableandno reliancecanbeplacedonthesamecannotbeaccepted.Allthatisrequiredto actupontheevidenceofanapproveristhattheirevidencehasaringoftruth and that there is other evidence brought on record, rendering the evidence tendered by them before the Court, probable. 54. Before parting with the appreciation of the evidence of the approver, we would like to notice another facet of the matter. The learned Special Judge has noted in Paragraph No.40 of the judgment as under: "The evidence of PWs.1 and 2 gets corroboration from their own previous statements recorded under Section 164 of the Cr.P.C. 55. We find that the statements of PWs 1 and 2 were initially recorded under Section 164 of the Cr.P.C. by the learned Magistrate. The learnedSpecialJudge,obviouslybeingawareofthelawthatomnibusmarking Crl.A. No.783 of 2024 :6 9: 2024:KER:92808 of the 164 statement is not permitted, proceeded to initially take down the evidencebythewitnessasnarratedbyhimandthereafterproceededtomark piecemealtherelevantportionofthe164statementasanexhibit. Exts.P1to P1(i) are the marked portions of the 164 statement of PW1 and Exts.P4 to P4(g) are the portions of the 164 statement insofar as it relates to PW2. Obviously,thesaidprocedurewasfollowedtogetoverthedirectionsissuedby the Apex Court to the effect that omnibus marking of the 164 Statement of the witnesses shall never be done. 56. The Apex Court Criminal Trials Guidelines regarding Inadequacies And Deficiencies, in Re. v. State of Andhra Pradesh and Others14, whilenoticingdeficienciesthatoccurinthecourseofcriminal trial and certain practices adopted by trial courts, had issued the following directions concerning Section 164 of the Cr.P.C. 10. References to statements under Section 161 and 164 CrPC. (i)Duringcross-examination,therelevantportionofthestatementsrecorded underSection161CrPCusedforcontradictingtherespectivewitnessshallbe extracted. If it is not possible to extracttherelevantpartasaforesaid,the PresidingOfficer,inhisdiscretion,shallindicatespecificallytheopeningand 14 [(2021) 10 SCC 598] Crl.A. No.783 of 2024 :7 0: 2024:KER:92808 closing words of such relevant portion, while recording the deposition, through distinct marking. (ii) In such cases, where therelevantportionisnotextracted,theportions onlyshallbedistinctlymarkedasprosecutionordefenceexhibitasthecase may be, so that otherinadmissibleportionsoftheevidencearenotpartof the record. (iii) In cases, where the relevant portion is not extracted, the admissible portion shall be distinctly marked as prosecution or defence exhibit as the case may be. (iv) The aforesaid rule applicable to recording of the statements under Section 161 shall mutatis mutandis apply to statements recorded under Section 164 CrPC, whenever such portions of prior statements of living persons are used for contradiction/corroboration. (v) Omnibus marking of the entire statement under Sections 161 and 164 CrPC shall not be done.(emphasis supplied) 57. In tune with the guidelines issued by theApexCourt,Rule56A was inserted in the Criminal Rules of Practice, Kerala, 1982, regarding the recording of depositions. Rule 56A reads as under: Rule 56A: Recording of Deposition: (1) The court shall while recording the deposition divide the same into separate paragraphs assigning paragraph numbers. xxxxx xxxxx xxxxx Crl.A. No.783 of 2024 :7 1: 2024:KER:92808 (7) During cross-examination, the relevant portion of the statements recorded under section 161 of the Code used for contradicting the respectivewitnessshallbeextracted.Ifitisnotpossibletoextractthe relevantpartasaforesaid,thePresidingOfficer,inhisdiscretion,shall indicate specifically the opening and closing words of such relevant portion, while recording the deposition, through distinct marking. (8) Insuchcases,wheretherelevantportionisnotextractedtheportions onlyshallbedistinctlymarkedasprosecutionordefenceexhibitasthe case may be, so that other inadmissibleportionsoftheevidenceare not part of the record. (9) In cases, where the relevant portion is not extracted, theadmissible portionshallbedistinctlymarkedasprosecutionordefenceexhibitas the case may be. (10)Theaforesaidruleapplicabletotherelevantstatementsundersection 161 of theCodeshallmutatismutandisapplytostatementsrecorded undersection164oftheCodewhensuchportionsofpriorstatements are used for contradiction/corroboration. (11)OmnibusmarkingoftheentirestatementsunderSection161and164 of the Code shall not be done. 58. In GeorgeandOrs.v.StateofKeralaandAnr.15,theApex Court had laid down that it is a fundamental rule of Criminal jurisprudence 15 [AIR 1998 SC 1376] Crl.A. No.783 of 2024 :7 2: 2024:KER:92808 thatastatementofawitnessrecordedunderSection164oftheCr.P.C.cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating the witness. In Utpal Das v. State of West Bengal16, it was held that the statement recorded under Section164ofthe Cr.P.C.canneverbeusedassubstantiveevidenceofthetruthofthefactsbut may be used for contradiction and corroboration of a witness, who made it. The statement made under Section 164 of the Cr.P.C. can be used to cross-examine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeachthecredibilityof the prosecution witness. In an appropriate case, the defence can invite the attention of the witness to the statement made under Section 164 of the Cr.P.C., for the purpose of bringing out the contradictions, if any, in his/her evidence. In the absence of the same, the Court cannot read the 164 Statement and compare the same with the evidence of the witness. In P.V NarasimhaRaoandOthersv.StatethroughCBI17,aSingleJudgeofthe Delhi High Court had occasiontonoticethepracticeofseekingcorroboration of the evidence of a witness, with his statement under Section 164 of the 16 [AIR 2010 SC 1894] 17 [ 2002 Crl J 2401] Crl.A. No.783 of 2024 :7 3: 2024:KER:92808 Cr.P.C. It was observed as under: "ThestatementofPW-1isbeingsoughttobecorroboratedbyhisstatement under Section 164 Code of Criminal Procedure. Such corroboration is impermissible.ThestatementunderSection164CodeofCriminalProcedure cannot be used tocorroboratethetestimonyofawitnesswhoneedstobe corroborated by material particulars by independent evidence. The corroboration must necessarily come from source de hors,theApproveror an accomplice. There is no such material in the entire case and the only corroborationisthestatementunderSection164CodeofCriminalProcedure of the Approver. It is well settled that a witness who needs corroboration cannot corroborate himself by any statement made earlier or later. His evidence needs to be corroborated by independent evidence and his own previous statement cannotbesaidtobeindependentevidence. (emphasis supplied) 59. The observations made above reflect the correct proposition of law. Section 157 of the EvidenceActpermitsproofofanyformerstatement made by a witness relating to the same fact before any authority legally competenttoinvestigatethefactbutitsuseislimitedtocorroborationofthe testimony of such witness. Though a police officer is legally competent to investigate, any statement made to him during such investigation cannot be used to corroborate the testimony of awitnessbecauseoftheclearinterdict containedinSection162oftheCode.ButastatementmadetoaMagistrateis Crl.A. No.783 of 2024 :7 4: 2024:KER:92808 notaffectedbytheprohibitioncontainedinthesaidSection.AMagistratecan record thestatementofapersonasprovidedinSection164oftheCodeand such statement would either be elevated to the status of Section 32 if the makerofthestatementsubsequentlydiesoritwouldremainwithintherealm of whatitwasoriginally.AstatementrecordedbyaMagistrateunderSection 164 becomesusabletocorroboratethewitnessasprovidedinSection157of theEvidenceActortocontradicthimasprovidedinSection155thereof.(See RamprasadvsStateOfMaharashtra 18).TheApexCourtinKeharSingh and Ors. v. State (Delhi Administration19 had held that a perusal of Sections145,155and157oftheIndianEvidenceActindicatesthatthereare two purposes for which a previous statement can be used. They are i) for cross examination and contradiction and ii) for corroboration. When the defencewantstousethepreviousstatementofawitnessitwouldonlybeto contradict a witness and not to corroborate. A previous statement of a witnessrecordedunderSection164oftheCr.P.C.canbeusedforimpeaching the credit of a witness and cannot be used as substantive evidence. 60. In view of the discussion above, we are of the view that the 18 IR 1999 SC 1969 A 19 [AIR 1988 SC 1883] Crl.A. No.783 of 2024 :7 5: 2024:KER:92808 observation made by the learned Sessions Judge thattheevidenceofPWs.1 and 2 gets corroboration fromtheirownpreviousstatementsrecordedunder Section 164 of the Cr.P.C.cannotbesaidtobecorrect. Corroborationtothe evidence of an accomplice must proceed from an independent and reliable source and the previous statement made by the accomplice himself though consistentwiththestatementmadebyhimatthetrialareinsufficientforsuch corroboration. C. The Certification under Section 65B of the Indian Evidence Act: 61. The next contention advanced by the learned counsel is with regardtothecertificationissuedunderSection65BoftheIndianEvidenceAct insofar as it relates to and the documents produced before court by PW16. The learned counsel would highlight that the said officer had extracted the data from the google and facebook accounts of the accused and the entire data were copied to a DVD. However, when the witness was examined as PW16,hestatedthatthecertificationunderSection65Bwasnotissuedatthe time of extraction as he omitted to do the same. However, at the time of recording of theevidence,heproducedExt.P23(l)certificationunderSection Crl.A. No.783 of 2024 :7 6: 2024:KER:92808 65B of the Act. The learned counsel points out that the said procedure adopted cannot be approved. We find that the very same issue was consideredbytheApexCourtinArjunPanditraoKhotkar(supra),wherein a Bench of Three Judges of the Apex Court, were called upon to interpret Section 65B of the Indian Evidence Act, 1872. One of the issues that was consideredwasthestageatwhichsuchacertificatemustbefurnishedtothat court. Whiledecidingtheissue,theApexCourttooknoteoftheobservations in Anvar P.V. v. P.K.Basheer20, State By Karnataka Lokayukta, Police Station,Bengaluruv.M.R.Hiremath21,theobservationsmadebytheHigh Court of Rajasthan in Paras Jain v. State of Rajasthan22 and that ofthe Delhi High Court inKundan Singh v. State23 and it was observed as under: "52.WemayhastentoaddthatSection65-Bdoesnotspeakofthestageat which such certificate must be furnished totheCourt.In AnvarP.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC473],thisCourtdidobservethatsuch certificatemustaccompanytheelectronicrecordwhenthesameisproduced inevidence.Wemayonlyaddthatthisissoincaseswheresuchcertificate could be procured by thepersonseekingtorelyuponanelectronicrecord. 20 (2014) 10 SCC 473 21 (2019) 7 SCC 515 22 [2015 SCC OnLine Raj 8331] 23 2015 SCC OnLine Delhi 13647 Crl.A. No.783 of 2024 :7 7: 2024:KER:92808 However, in cases where either a defective certificate is given, or incases where such certificate has been demanded and is notgivenbytheperson concerned,theJudgeconductingthetrialmustsummontheperson/persons referred to in Section 65-B(4) of the Evidence Act, and require that such certificatebegivenbysuchperson/persons.This,thetrialJudgeoughttodo when the electronic record is produced in evidencebeforehimwithoutthe requisite certificate inthecircumstancesaforementioned.Thisis,ofcourse, subject to discretion being exercised in civil cases in accordance with law, andinaccordancewiththerequirementsofjusticeonthefactsofeachcase. Whenitcomestocriminaltrials,itisimportanttokeepinmindthegeneral principle that the accused must be supplied all documents that the prosecutionseekstorelyuponbeforecommencementofthetrial,underthe relevant sections of the CrPC. 53. In a recent judgment, a Division Bench of this Court in State of Karnataka v. M.R. Hiremath [S tateofKarnataka v. M.R.Hiremath,(2019)7 SCC515],afterreferringto AnvarP.V. [A nvarP.V. v. P.K.Basheer,(2014)10 SCC 473] held:(M.R.Hiremathcase [S tateofKarnataka v. M.R.Hiremath, (2019) 7 SCC 515 : SCC p. 523, paras 16-17) "16.Thesameviewhasbeenreiteratedbyatwo-JudgeBenchofthis Courtin UnionofIndiav.RavindraV.Desai[U nionofIndiav.Ravindra V.Desai,(2018)16SCC273:(2020)1SCC(Cri)669:(2019)1SCC (L&S)225].TheCourtemphasisedthatnon-productionofacertificate under Section 65-B on an earlier occasion is a curable defect. The Court relied upon the earlier decision in Sonu v. State of Haryana [Sonu v. State of Haryana, (2017) 8 SCC 570 : (2017) 3 SCC (Cri) 663], in which it was held : (Sonu case [S onu v. State of Haryana, Crl.A. No.783 of 2024 :7 8: 2024:KER:92808 (2017) 8 SCC 570 : (2017) 3 SCC (Cri) 663] , SCC p. 584, para 32) '32....Thecrucialtest,asaffirmedbythisCourt,iswhetherthe defect could have been cured at the stage of marking the document.Applyingthistesttothepresentcase,ifanobjection was takentotheCDRsbeingmarkedwithoutacertificate,the courtcouldhavegiventheprosecutionanopportunitytorectify the deficiency.' 17. Havingregardtotheaboveprincipleoflaw,theHighCourt[M .R. Hiremath v. State,2017SCCOnLineKar4970]erredincomingtothe conclusion that the failure to produce a certificate under Section 65-B(4) of the Evidence Act atthestagewhenthecharge-sheetwas filed was fatal to the prosecution. The needforproductionofsucha certificate would arise when the electronic record is sought to be producedinevidenceatthetrial.Itisatthatstagethatthenecessity of the production of the certificate would arise." xxxxx xxxxx xxxxx 56.Therefore,intermsofgeneralprocedure,theprosecutionisobligatedto supply all documents upon which reliance may be placed to an accused beforecommencementofthetrial.Thus,theexerciseofpowerbythecourts incriminaltrialsinpermittingevidencetobefiledatalaterstageshouldnot resultinseriousorirreversibleprejudicetotheaccused.Abalancingexercise in respect of the rights of parties has to be carried out by the court, in examininganyapplicationbytheprosecutionunderSections91or311CrPC orSection165oftheEvidenceAct.Dependingonthefactsofeachcase,and thecourtexercisingdiscretionafterseeingthattheaccusedisnotprejudiced Crl.A. No.783 of 2024 :7 9: 2024:KER:92808 by want of a fair trial, the court may in appropriate cases allow the prosecution to produce such certificate at a later point in time. If it isthe accused who desires to produce the requisite certificate as part of his defence,thisagainwilldependuponthejusticeofthecase--discretionto be exercised by the court in accordance with law. xxxxx xxxxx xxxxx 59. Subjecttothecaveatlaiddowninparas52and56above,thelawlaid downbythesetwoHighCourtshasourconcurrence.Solongasthehearing in a trial is not yet over, the requisite certificate can be directed to be producedbythelearnedJudgeatanystage,sothatinformationcontainedin electronic record form can then be admitted, and relied upon in evidence. 62. Thepositionhasbeenclarifiedandithasbeenheldthatsolong as the hearing in a trial is not yet over, the requisite certification can be directed to be produced by the learned Judge at any stage, so that the information contained in electronic record form can then be admitted, and relied upon in evidence. Recently, inStateofKarnataka(s)v.T.Naseer @Nasir@ThadiyantavidaNaseer@Umarhazi@HaziandOrs(supra), the question before the Apex Court was whether the delay in producing the certificateunderSection65BoftheIndianEvidenceActwasavalidgroundfor rejection. AfterreferringtothelawlaiddowninArjunPanditrao(supra),it Crl.A. No.783 of 2024 :8 0: 2024:KER:92808 is observed that in paragraph No. 15 as follows: 15.Fairtrialinacriminalcasedoesnotmeanthatitshouldbefairtooneof the parties. Rather, the object is that no guilty should goscot-freeandno innocent should be punished. A certificate under Section 65-B of the Act, whichissoughttobeproducedbytheprosecutionisnotanevidencewhich hasbeencreatednow.Itismeetingtherequirementoflawtoproveareport on record. By permitting the prosecution to produce the certificate under Section 65B of the Act at this stage will not result in any irreversible prejudicetotheaccused.Theaccusedwillhavefullopportunitytorebutthe evidence led by the prosecution. ... 63. In the case on hand, a soft copy of theextractedmaterialwas admittedly handed over to the accusedandthecertificateunderSection65B of the Indian Evidence Act was produced when PW16 had appeared before courtfortenderingevidence.Inthatviewofthematter,itcannotbesaidthat thebelatedproductionofthecertificateunderSection65Bhasresultedinany prejudice to the accused. D. The Conspiracy meeting: 64. The next contention is that the evidence adduced by the InvestigatingagencywouldnotgotoshowthattheappellantandPW1and2 had assembled at Lulu Mall or Marine Drive, Ernakulam, with the intent to Crl.A. No.783 of 2024 :8 1: 2024:KER:92808 furtherISISactivitiesandthattheappellanthadpersuadedthemtocarryout proscribed activities. It is true that the prosecution hasnotplacedonrecord any CCTV footage to show that they were together at any of these places. However, as noted by us earlier, Ext.P23(b) clearly shows that the contact details of PW1 and PW2wereintheaddressbookoftheaccused.BothPW1 and PW2 deposed thaton26/10/2019,theyhadmetfirstnearLuluMalland then at Marine Drive. This meeting is substantiated by several pieces of evidence, including Ext.P20 (the call detail record of PW2), Ext.P26 (the call detail record of PW1), Ext.P28 (the call detail record of the accused), and Ext.P27 (the Decoded Cell IDList).Furthermore,themeetingisnotdisputed even by the accused while cross examining the witnesses. E. Extraction of incriminating materials from Google and Facebook. 65. A contention was taken during cross-examination of PW16 that the accused had not furnished the User ID and Password of the Google AccountaswellastheFacebookaccountandthatthecontentsofExt.P23has no connection whatsoever with him. However, wefindfromExt.P7thatafter Crl.A. No.783 of 2024 :8 2: 2024:KER:92808 entering the e-mail ID and Password of the accused, the account protection windowappeared,andtheMobileNumber9446454340andanotherGmailID '[email protected]' was displayed. The mobile number admittedly belonged to the accused, as is borne out fromExt.P22CustomerApplication Form (CAF). This fact is admitted by the accused when he was questioned under Section 313 of the Code. The account recoverynumberisalsothatof the accused. Furthermore, the entire extraction was carried out in the presence of PW3 and PW17. 66. We are unable to accept the contention of the learned counsel appearingfortheappellantthattheprocedureadoptedbyPW22isillegal.As held by a learned Single Judge of the Karnataka High Court, in Virendra Khannav.StateofKarnatakaandOrs.24,theInvestigatingOfficer,during thecourseofaninvestigationcouldalwaysissueanydirectionand/ormakea request to the accused to furnishinformationandinsuchmanner,candirect the accused to furnish thePassword,Passcode,orBiometricstofacilitatethe opening of the Smartphone or the Email Account. It would be open to the accused to accede to the said request. If he refuses, appropriate steps in 24 [MANU/KA/0728/2021] Crl.A. No.783 of 2024 :8 3: 2024:KER:92808 accordancewithlawwillhavetobeinitiated.Iftheaccusedwillinglyprovides such a Password, Passcode, or biometrics, it would be open to the Investigating Officer to utilize the same and gain accesstotheaccount.The Investigating Officer, however, is required to follow a transparent procedure whilecarryingouttheextractionwiththeassistanceofanexpert.TheDataso gathered would have to be treated like any other document and/or object securedduringthecourseoftheinvestigation.TheDatagatheredwillhaveto be proven during the course of the trial,inaccordancewithlaw.Inthecase on hand, the accused had voluntarily given his credentials with which DATA extraction was carried out in the presence of witnesses, in a transparent mode, by following proper procedure, and by recording the entire process. F. Extraction of Data from the mobile phone, Memory Card and SIM Card: 67. The next contention raised before usisthattherelianceplaced by the Special Court on Exts. P30 and P31--the reports submitted by C-DAC--to further the claim of the prosecution that the appellant contacted PWs1and2throughsocialnetworkingsitestomotivatethemtojoinISISand Crl.A. No.783 of 2024 :8 4: 2024:KER:92808 spread its ideologies is misplaced. We have dealt with this issue earlier. Though a contentionwasraisedthattheappellantwaslivingseparatelyfrom hisparentsandthatthemobilephoneandmemorycardarenothis,thereisa wealthofevidencelinkingthesaidelectronicitemswiththeappellant.Wefind that the seizure of the digital devices has been duly proved through the testimony of witnesses present during the seizure. The devices have been promptly handed overtotheconcernedcourtimmediatelyaftertheirseizure, ensuring properproceduralcompliance.Themetadataandpropertiesofeach retrieved file indicate that the files predatethearrestoftheaccused,further corroboratingtheirauthenticity.Personaldetailsoftheaccused,retrievedfrom the digital devices, were not even denied by the accused while he was questioned under Section 313 of the Code. He has stated that the mobile bearing number "9446454340" including the CAFactuallybelongstohim.He has also admitted that the photos found in the memory card belongtohim. The hash values of the digital devices, as recorded by C-DAC, confirm the integrity of the retrieved data, and the data was transferred to the Special Court ensuring its authenticity. The events and information contained in the digital devices are also corroborated by the respective witness.Furthermore, Crl.A. No.783 of 2024 :8 5: 2024:KER:92808 wefindthattheIMEInumberofthemobilephoneoftheaccused,markedas Ext.P13(OppoGoldenColourMobilePhone)matchestheCDRandtheC-DAC report.This establishesconclusivelythatExt.P13belongstotheaccusedand the chain of custody of the digital evidence ensures its credibility. G. Whether the ingredients of the offence chargedis attracted: 68. The next contention is that the offencesunderSections38and 39 of the UA(P) Act and Section 120B of theIPCwillnotbeattractedinthe instant case. 69. Before dealing with the ingredients of the offence, we may collate the evidence that has been established by the prosecution to bring home the charge. They are: a) The accused actively propagated ISIS ideology and advocated war against non-Muslims. b) He posted ISIS-related content on Facebook, shared videos of Abdul Rashid Abdulla and Abdul Khayoom, and disseminated links to ISIS Telegram channels. Crl.A. No.783 of 2024 :8 6: 2024:KER:92808 c) OrganizedandaddressedconspiracymeetingswithPW1andPW2near Lulu Mall and Marine Drive on 26.10.2018. d) Discussed Hijra (migration) to ISIS-controlled regions and the furtherance of ISIS activities with PW1 and PW2. e) Intended to perform Hijra to wage war against nations allied with India. f ) PlannedandencouragedsuicideattacksinIndiaforwhichpurposehe instigated PW1 and PW2. g) PW1 and PW2 confirmedthemeetingsatLuluMallandMarineDrive, where ISIS activitieswerediscussedandnarratedabouttheintention of the accused to conduct suicide attacks and narrated the story of Salahudeen Ayubi to persuade PW1 and PW2. h) PW4,PW5,PW9,PW13,andPW14testifiedtotheaccused'salignment with ISIS ideology and his proclivities. i) They stated about the refusal of the accusedtoperformNamazwith those who believed in democracy, citing his ideological allegiance to ISIS. Crl.A. No.783 of 2024 :8 7: 2024:KER:92808 j) Digital evidence including images, videos, and content depicting ISIS symbols, flags,andpledgesofallegiance(ExhibitsP3(b)toP3(e)and P23(l)(2) to P23(l)(4)). k) Voiceclips(Exts.P3(k),P3(l)toP3(y),P31(d)(11))andsearchhistory (Exts. P23(o)(1), P23(q)(1)) confirm the accused's communications and plans. l) TheevidenceofPWs1and2isfurthercorroboratedbytheCalldetail records (CDRs) of the accused, PW1, and PW2(Exts.P20,P26,P28) and Decoded Cell ID List (Ext.P27) establish the presence of the accused at the meetings. 70. Now weshalldealwiththequestionastowhethertheoffences chargedhavebeenattractedinthecase. Section38oftheUA(P)Actreadsas follows: 38. Offence relating to membership of a terrorist organisation.-- (1) Aperson,whoassociateshimself,orprofessestobeassociated,witha terroristorganisationwithintentiontofurtheritsactivities,commitsan offence relating to membership of a terrorist organisation: Provided that this sub-section shall not apply where the personchargedis Crl.A. No.783 of 2024 :8 8: 2024:KER:92808 able to prove-- (a) thattheorganisationwasnotdeclaredasaterroristorganisationat the time when he became a member or began to profess to be a member; and (b) thathehasnottakenpartintheactivitiesoftheorganisationatany time during its inclusion in the First Schedule as a terrorist organisation. (2) A person, who commits the offence relating to membership of a terrorist organisation under sub-section (1), shall be punishable with imprisonmentforatermnotexceedingtenyears,orwithfine,orwith both. 71. Section38oftheUA(P)Act,1967criminalizesassociationwithor professingtobeamemberofaterroristorganizationifdonewiththeintention of furthering its activities. This provision is aimed at preventing individuals frombecominginvolvedwithgroupslistedasterroristorganizationsunderthe First Schedule of the Act. The key elementistheassociationwithaTerrorist Organization. A person can be held liable under this section if he/she associates themselves with a terrorist organization, or claims or professesto be associated with such an organization. There should also be materials to establish that the person nursed an intention to further the activities of the terrorist organization. Mere membership without intent to promote its Crl.A. No.783 of 2024 :8 9: 2024:KER:92808 objectivesmaynotsuffice.However,therearecertainsafeguards.Theperson concernedcannotbeheldliableifheisabletoestablishthattheorganization was not declared a terrorist organizationatthetimetheybecameamember orbeganclaimingassociationwithit.He/Shecanbeexemptedfromliabilityif they are able toestablishthathe/shehasnotparticipatedinanyactivitiesof the organization during the period it was listed as a terrorist organization in the First Schedule. 72. Section 39 of the Act reads as under: 39. Offence relating to support given to a terrorist organisation.-- ( 1) A person commits the offence relating to support given to a terrorist organisation,-- (a) who, with intention to further the activity of a terrorist organisation,-- (i) invites support for the terrorist organization; and (ii) thesupportisnotorisnotrestrictedtoprovidemoneyorother property within the meaning of section 40;or (b) who, with intention to further the activity of a terrorist organisation, arranges, manages or assists in arranging ormanaginga meeting which he knows is-- (i) to support the terrorist organization; or (ii) to further the activity of the terrorist organization; or (iii) to be addressedbyapersonwhoassociatesorprofessestobe associated with the terrorist organisation; or (c) who, with intention to further the activity of a terrorist organisation, addresses a meeting for the purpose of encouraging support for the terrorist organisation or to further its activity. (2) A person, who commits the offenc erelating to support given to a Crl.A. No.783 of 2024 :9 0: 2024:KER:92808 terrorist organisation under subsection (1) shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both. 73. Section39oftheUA(P)Act,criminalizesanyactcommittedbya person supporting a terrorist organization with the intent to further its activities.Apersoncanbeheldliableunderthesaidprovisioniftheevidence establishes that he/she with intent to further the activity of a terrorist organization, which has been listed in the schedule, invites support for such organisation. It has been made clear that the support is not restricted to providing money or other property within themeaningofSection40.Sucha personcanalsobeheldliableifhe/shewithintenttofurthertheactivityofa terrorist organization has arranged, managed, or assisted in arranging or managing a meeting that he knows is with a view to i) supporttheterrorist organization, ii) further the activity of the terroristorganizationandiii)ifthe meeting is arranged, assisted or managed by him, then the said meeting is addressed byapersonwhoassociatesorprofessestobeassociatedwiththe terrorist organization. Theprovisionalsosaysthatifthesaidpersonwithan intention to further the activity of the terrorist organisation, addresses the meeting for the purpose ofencouragingsupportfortheterroristorganization Crl.A. No.783 of 2024 :9 1: 2024:KER:92808 or to further its activity, he can be held liable. The Section emphasizes the intent to furthertheorganization'sactivitiesandtheknowledgeofthenature or purpose of the meeting or support. Section 39 is designed to curtailthe spread of terrorism by targeting those who promote or facilitate terrorist organizations. It criminalizes indirect participation and ensures that even non-violent acts, such as organizing meetings or addressing gatherings, are penalized if they aim to further the terrorist organization's objectives. 74. In UnionofIndiav.YasmeenMohd.Zahid25,theUnionofIndia had preferred an appeal against the judgment rendered by this Court in YasmeenMohammadZahidv.UnionofIndiaRep.byNIA,Kochi26,the2nd accusedintheverysamecrimewhereinthisCourthadacquittedtheaccused inrespectoftheoffencepunishableunderSection125oftheIPC,Sections39and 40ofthe UA(P)ActandhadreducedthesentenceorderedbythisCourtforthe offence underSection120BoftheIPCand Section38 oftheUA(P) Act. The caseagainstthe2ndaccusedwasthatsheenteredintoacriminalconspiracy to raise funds for a terrorist organization and a part of the funds were transferred to the accused who in turn had transferred the same to the 1st 25 (2019) 7 SCC 790 26 [ 2018 SCC ONLINE KER 18630] Crl.A. No.783 of 2024 :9 2: 2024:KER:92808 accusedtoarrangetheirtraveltotheterritorycontrolledbytheIslamicState. Another allegation was that the 2nd accused had tried to exit India through the Indira Gandhi International Airport, New Delhi. This Court, while partly allowing the appeal,hadheldthatifapersonispunishableunderSection38 oftheUA(P)Act,Section39oftheActwouldbecomesuperfluous. TheApex Court,afterappreciatingthefacts,heldasfollowsinparagraphsNo.15to17 of the judgment. 15. The evidence on record, as culled out by the High Court in the observations quoted hereinabove establishes that A-1 was propagating the ideologyofISandadvocating,amongotherthings,waragainstnon-Muslims; that the classes were attended by A-2 Yasmeen; that the videos relating to suchspeecheswerefoundonherpersonwhenshewasarrested;andthatshe was attempting to go to Afghanistan at the instance of A-1. These features definitelypointtotheexistenceofmensrea.Thecourtsbelowweretherefore absolutelyrightinrecordingconvictionagainstA-2inrespectofoffencesunder Section 120-B IPC and Section 38 UAPA. The submissions advanced by Mr Krishnan, therefore, cannot be accepted and the appeal preferred by A-2 Yasmeen must fail. 16.WenowturntotheappealpreferredbytheUniontoseewhetherthe acquittal of A-2 for offences under Section 125 IPC and Sections 39 and 40 UAPAwasjustified.AsregardstheoffenceunderSection125IPC,thematter was rightlyappreciatedbytheHighCourtandweareincompleteagreement with the view taken by theHighCourt.ComingtoSections39and40UAPA, Crl.A. No.783 of 2024 :9 3: 2024:KER:92808 these provisions require certain elements in respect of which there is no materialevidenceonrecord.ForSection39UAPAtogetattracted,supporttoa terroristorganisationmustbewithinthemeaningofeitherofthreeclausesviz. clauses(a),(b)and(c)ofsub-section(1).Similarly,Section40requirescertain elements on satisfaction ofwhichapersoncanbesaidtobeguiltyofraising funds for a terrorist organisation. None of those features are established as against A-2 Yasmeen. The acquittal in respect of charges under Sections 39 and 40 was therefore rightly recorded by the High Court. 17.WemusthoweverstatethattheHighCourtwasnotrightinobserving "ifapersonispunishableunderSection38,Section39becomessuperfluous". In our view, the scopeofthesetwosectionsandtheirfieldsofoperationare different.Onedealswithassociationwithaterroristorganisationwithintention to further its activities while the other deals with garnering support for the terroristorganisation,notrestrictedtoprovidemoney;orassistinginarranging or managing meetings; or addressing a meeting for encouraging supportfor the terrorist organisation. 75. While allowing the appeal, the Apex Court noted that the evidenceestablishedthattheaccusedwaspropagatingtheideologyofISIS,a proscribed organization, and advocating, among other things, war against non-Muslims. It was also noted that the videos relating to inflammatory speeches advocating violence were found on her person when she was arrested. Records also revealed that the accused was attempting to go to Afghanistanattheinstanceofthe1staccused.Itwasheldthattheseactions Crl.A. No.783 of 2024 :9 4: 2024:KER:92808 definitely point to the existence of mens rea. While allowing the appeal, it was held that thisCourtwasnotrightinobserving"ifapersonispunishable under Section38,Section39becomessuperfluous".Itwasobservedthatthe scope of these two sections and their fields of operation are different. One deals with an association with a terrorist organization with the intention to further its activities while the other deals with garnering support for the terrorist organization, not restricted to providing money; or assisting in arranging or managing meetings, or addressing a meeting for encouraging supportfortheterroristorganization. Wehavenodoubtsinourmindthatthe acts proven against the accused would clearly attract Sections 38 and 39 of the UA(P) Act and the findings of the learned Sessions Judge to that effect does not warrant any interference. 76. ThenextquestioniswhethertheoffenceunderSection120Bof theIPCisattractedintheinstantcase. We may refer to the provisions of Section 120A of the Indian Penal Code which defines criminal conspiracy. It providesthatwhentwoormorepersonsagreetodoorcausetobedone,(1) an illegal act or (2) an act which is not illegal by illegal means, such agreement is designated a criminal conspiracy; provided that no agreement Crl.A. No.783 of 2024 :9 5: 2024:KER:92808 exceptanagreementtocommitanoffenceshallamounttocriminalconspiracy unlesssomeactbesidestheagreementisdonebyoneormorepartiestosuch agreement in pursuance thereof. Thus, a cursory look at the provisions contained in Section 120A reveals that a criminal conspiracy envisages an agreement between two or more persons to commit an illegal act or an act which by itselfmaynotbeillegalbutthesameisdoneorexecutedbyillegal means. Thus the essential ingredient of the offence of criminal conspiracyis theagreementtocommitanoffence.Inacasewheretheagreementisforthe accomplishment of an act which by itselfconstitutesanoffence,theninthat event, no overt act is necessary to be proved by theprosecutionbecausein such a fact situation criminal conspiracy is established by proving such an agreement.Inotherwords,wheretheconspiracyallegediswithregardtothe commissionofaseriouscrimeofthenatureascontemplatedinSection120B read with the proviso to sub-section (2) of Section120AoftheIPC,then,in thatevent,mereproofofanagreementbetweentheaccusedforcommission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them wouldnotbenecessary.Theprovisionsinsuchasituationdonotrequirethat Crl.A. No.783 of 2024 :9 6: 2024:KER:92808 each and every person who is a partytotheconspiracymustdosomeovert act towards the fulfillment of the object of the conspiracy, the essential ingredientbeinganagreementbetweentheconspiratorstocommitthecrime and if these requirements and ingredients are established the act would fall within the trapping oftheprovisionscontainedinSection120Bsincefromits verynatureaconspiracymustbeconceivedandhatchedincompletesecrecy because otherwise the whole purpose may be frustrated anditisacommon experience and goes without saying that only in very rare cases one may comeacrossdirectevidenceofacriminalconspiracytocommitanycrimeand in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn. (See:Suresh Chandra Bahri (supra)]. 77. In Noor Mohammad Mohd. Yusuf Momin v. State Of Maharashtra27,theobservationsmadebytheApexCourtcanbequotedwith advantage which read as under: "Criminal conspiracy differs from other offences in that mere agreement is 27 [(1970) 1 SCC 696] Crl.A. No.783 of 2024 :9 7: 2024:KER:92808 madeanoffenceevenifnostepistakentocarryoutthatagreement.Though there is close association of conspiracy with incitement and abetment the substantiveoffenceofcriminalconspiracyissomewhatwiderinamplitudethan abetment by conspiracy as contemplated by Section 107 IPC. A conspiracy from its very nature is generallyhatchedinsecret.Itis,therefore,extremely rarethatdirectevidenceinproofofconspiracycanbeforthcomingfromwholly disinterestedquartersorfromutterstrangers.But,likeotheroffences,criminal conspiracy can be proved by circumstantial evidence. Indeed, in most cases proofofconspiracyislargelyinferentialthoughtheinferencemustbefounded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, amongotherfactors,constituterelevantmaterial.Infactbecauseof thedifficultiesinhavingdirectevidenceofcriminalconspiracy,oncereasonable ground is shown for believing that two or more persons have conspired to commitanoffencethenanythingdonebyanyoneoftheminreferencetotheir commonintentionafterthesameisentertainedbecomes,accordingtothelaw of evidence, relevantforprovingbothconspiracyandtheoffencescommitted pursuantthereto.[SeealsoV.C.Shuklav.State(DelhiAdministration)(1980) 2 SCC 665)] 78. WehavealreadydealtwithSections38and39oftheUA(P)Act. Section38ofthe UA(P)Actwillbeattractedifapersonassociateshimself,or professes to be associated, with a terrorist organizationwiththeintentionto further its activities. Section 39 of the UA(P) Act, on the other hand,willbe attracted if a person, with intent to further the activity of a terrorist organization, which has been listed in the Schedule, invites supportforsuch Crl.A. No.783 of 2024 :9 8: 2024:KER:92808 organization in the manner mentioned therein. In that view of the matter, going by the principleslaiddownbytheApexCourtaboveinthelightofthe proven facts, mere proof of an agreement between the accused for the commission of the objectionable acts under Sections 38 and 39 would be enough to bring about a conviction under Section 120B of the IPC r/w. Sections 38 and 39 of the UA(P) Act and the proof of any overt act by the accusedorbyanyoneofthemwouldnotbenecessary.Theprovisionsinsuch a situation do not require that each and every person who is a party tothe conspiracymustdosomeovertacttowardsthefulfillmentoftheobjectofthe 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 trapping of the provisions contained in Section 120B of the IPC. This is because by its very nature, a conspiracy must be conceived and hatched in complete secrecy because otherwise the whole purpose may be frustrated. 79. Having evaluated the entire facts and evidence, we are of the viewthatthetrialcourthasrightlyheldthattheprosecutionhassucceededin proving that PWs 1 and 2 and the accused were radicalized through the Crl.A. No.783 of 2024 :9 9: 2024:KER:92808 ideologies of ISIS, a terrorist organization. Ithasalsobeenestablishedthat the accused was apartytothecriminalconspiracytofurthertheactivitiesof theterroristorganizationandtogarnersupportbymigratingtoISIScontrolled territories. It has also been established that the accused had associated himselfandhadprofessedtobeassociatedwithISIS,withintenttofurtherits activities. Materialsalsoclearlyrevealthattheaccusedwithintenttofurther the activities of the proscribed organization had invited support and thereby committedtheoffencepunishableunderSection120BoftheIPCr/w.Sections 38 and 39 of the UA(P) Act and Sections 38 and 39 of the UA(P) Act. H. Whether the sentence imposed by the Special Courtis in order: 80. Now, what remains is the sentence that istobeimposed. The learnedcounselappearingfortheappellantpointedoutthatthe16thaccused had pleaded guilty of the offence and he was convicted and sentenced to undergo imprisonment for five years. The 2nd accused faced trial and she was sentenced toundergorigorousimprisonmentforsevenyearsbythetrial court, which the Apex Court upheld. However, insofar as the appellant is concerned, he has been granted the maximum punishment for the offence Crl.A. No.783 of 2024 :1 00: 2024:KER:92808 under Sections 38 and 39 of the UA(P) Act. For awarding the maximum punishment provided for the offences, the learned Special Judge has given reasons. The learned Special Judge has held that the accused is a highly radicalized person in ISIS ideologies andhehasbeenspreadingtheideology throughsocialmediaplatformsforthepastseveralyears. Thecourtfeltthat the uploads, posts, and comments made on social media supporting ISIS would have caused an increase in the growth of radicalization due to the widespreadreachandinfluenceofthesocialmediaonlineplatform.Thecourt alsoobservedthatastheoffencecommittedwasagainstpublicorderaffecting the morale of the society, a clear signal of deterrence was to be sent. The question is in the facts and circumstances, the imposition of maximum punishment for the offences under Sections 38 and 39oftheUA(P)Actwas warranted. 81. InSunilDuttSharmav.State[Govt.ofNCTI,Delhi]28,the appellantthereinwastriedfortheoffenceunderSections302and304Bofthe IPC. He was acquitted for the offence under Section 302 of the IPC by extending the benefit of doubt but was found guilty for the offence under 28 [2013 AIR SCW 5889] Crl.A. No.783 of 2024 :1 01: 2024:KER:92808 Section 304B of the IPC, following which the sentence of life imprisonment wasimposed. TheApexCourtissuednoticetothelimitedquestionastothe determination as to whether the imposition of the maximumsentenceoflife imprisonment was in any way excessive or disproportionate warranting interference. The Apex Court held thatthepowerandauthorityconferredby useofthedifferentexpressionsindicatetheenormousdiscretionvestedinthe courtsinsentencinganoffenderwhohasbeenfoundguiltyofthecommission of any particular offence. Nowhere, either in the Penal Code or in anyother law in force, any prescription or norm or even guidelines governing the exerciseofthevastdiscretioninthematterofsentencinghavebeenlaiddown except perhaps, Section 354(3) of the Code of Criminal Procedure, 1973 which,interalia,requiresthejudgmentofacourttostatethereasonsforthe sentenceawardedwhenthepunishmentprescribedisimprisonmentforaterm of years. In the above situation, naturally, the sentencing power has beena matter of serious academic and judicial debate to discern an objective and rationalbasisfortheexerciseofthepowerandtoevolvesoundjurisprudential principlesgoverningtheexercisethereof. Afterreferringtotheprincipleslaid Crl.A. No.783 of 2024 :1 02: 2024:KER:92808 down in Jagmohan Singh v. State of U.P.29, Bachan Singh v.Stateof Punjab30, and Machhi SinghandOrs.v.StateofPunjab31,whichareall celebratedjudgmentslayingdownthejurisdictionalprinciplesinthematterof sentencing, the Apex Court observedasfollowsinparagraphNos.12and13 of the judgment: "12. Are we to understand that the quest and search for a sound jurisprudential basis for imposing a particular sentence on an offender is destined to remain elusive andthesentencingparametersinthiscountryare bound toremainJudge-centric?Theissuethoughpredominantlydealtwithin the context of cases involving thedeathpenaltyhastremendoussignificance to the Criminal Jurisprudence of the country inasmuch as in addition to the numerous offences under various special laws in force, hundredsofoffences areenumeratedinthePenalCode,punishmentforwhichcouldextendfroma singledayto10yearsorevenforlife,asituationmadepossiblebytheuseof the seemingly same expressions in different provisions of the Penal Code as noticed in the opening part of this order. 13. As noticed, the "net value" of the huge number of in-depth exercises performed since Jagmohan Singh (1973) 1 SCC 20 has been effectively and systematically culled out in Sangeet (2013) 2 SCC 452 and Shankar Kisanrao Khade (2013) 5 SCC 546. The identified principles could provide a sound objective basis for sentencing thereby minimising individualised and Judge-centric perspectives. Such principles bear a fair 29 [ (1973) 1 SCC 20] 30 [1980) 2 SCC 684] 31 [(1983) 3 SCC 470] Crl.A. No.783 of 2024 :1 03: 2024:KER:92808 amountofaffinitytotheprinciplesappliedinforeignjurisdictions,arésuméof whichisavailableinthedecisionofthisCourtinStateofPunjabv.PremSagar (2008)7SCC550.Thedifferenceisnotintheidentityoftheprinciples:itlies in the realm of application thereof to individual situations. While in India application of the principles is left to the Judge hearing the case, in certain foreign jurisdictions such principles are formulatedundertheauthorityofthe statute and are applied on principles of categorisation of offences which approach,however,hasbeenfoundbytheConstitutionBenchinBachanSingh (1980) 2 SCC 684 to be inappropriate to our system. The principles being clearly evolved and securely entrenched, perhaps, the answer lies in consistency in approach." 82. In Sadiya Anwar Shaikh v. National Investigation Agency32, a learned Single Judge of the Delhi High Court had occasion to renderascholarlyexpositionwiththeregardtosentencinginterrorismrelated offences. Itwasobservedthatinsofarassentencingisconcerned,specifically in terrorism and similar/related offences, no guidelines have been framed in India at a policy level. However, in foreign jurisdictionssuchastheUK,US, Sweden etc., specific guidelines have been framed for the purpose of sentencing in the case of terroristacts. Furthermore,incertainjurisdictions, there are also general guidelines that are to be followed for awarding sentences in the absence ofguidelinesspecifictotheoffenceathand. After 32 [2024 DHC 8801] Crl.A. No.783 of 2024 :1 04: 2024:KER:92808 referring to the guidelines in the UK, US, and Sweden, the learned Single Judge has referred to India and has laid down as under: "31. In India, though there are no specific sentencing guidelines, recommendationsrecordingtheneedtointroducesuchguidelinesweremade way back inMarch,2003.TheCommitteeonReformsontheCriminalJustice System (Malimath Committee) was of the opinionthatsuchguidelineswould minimizetheuncertaintyintheawardingofsentences.Suchaneed hasbeen reaffirmed by the Draft National Policy on Criminal Justice (MadhavaMenon Committee).Certainnewsreportsalsosuggestthatsuchameasurewasunder consideration to remove the uncertainty in sentencing. 32.Onthejudicialside,thefollowingarethejudgments,whichdiscuss the factorsintheawardingofsentences.InPramodKumarMishrav.Stateof UP[(2023)9SCC810]theSupremeCourtupheldthegeneralfactorsthatare to be considered while sentencing, mentioned in Santa Singh v. State of Punjab [(1976) 4 SCC 190] • Prior Criminal Record • Age of the Offender • Employment Records • Background of an offender with respect to Education, Homelife, Sobriety, and Social Adjustment. • Emotional and mental conditions of the offender • Prospects of rehabilitation •Possibilityofthesentenceactingasadeterrencetothecriminaland others. 33. In Sunder Singh v. State of Uttaranchal [2010) 10 scc 611], the Supreme Court listed out and classified various aggravating and mitigating Crl.A. No.783 of 2024 :1 05: 2024:KER:92808 factors. The Aggravating Factors include, • Whether the offence involves extreme brutality, •Whethertheoffenceistargetedtowardsalargenumberofpeopleof a particular caste, religion or locality, committed with previous planning. Similarly, the mitigating factors include, • extreme mental/ emotional disturbance of the offender, • young/old age of the offender, • reduced probability of committing the crime again, • offence committed under duress/ domination, mental impairment 34. The Supreme Court in the State of Madhya Pradesh v. Udham Singh7 laid down the basic principles in awarding sentences based on the fulcrum of three tests. (i) Crime test - involves assessment of factors like the extent of planning,choiceofweapon,modusofcrime,disposalmodus(ifany),therole oftheaccused,antisocialorabhorrentcharacterofthecrime,andstateofthe victim. (ii) Criminal test - involves assessment of factors such asageofthe criminal,genderofthecriminal,economicconditions,orsocial backgroundof the criminal, motivation of crime, availability of defence, state of mind, instigation by the deceased oranyonefromthe deceasedgroup,adequately represented in the trial, disagreement by a judge in the appeal process, repentance, possibility of reformation, trial, criminal record (not to take pending cases), and any other relevant factor (not an exhaustive list) (iii) Comparative Proportionality Test 35.Intermsofgeneralprinciples,theSupremeCourtinHazaraSingh Crl.A. No.783 of 2024 :1 06: 2024:KER:92808 v. Raj Kumar & Ors [2013) 9 SCC 516, observed thatsentencingshouldbe proportionaltothecrimecommitted.Similarly,theCourtalsoobservedthatthe processofsentencingshallhavetobalancetherightsofthevictimandthatof thesocietyatlarge.Further,theDelhiHighCourtinBilalAhmed&Orsv.NIA and Anr 2024:DHC:4113-DB while dismissing the case for not providing reasons in awarding thehighestsentence,clearlyobservedthattheenormity of the allegation cannot be the sole determinant factor for finalizing the quantumofsentence.A balancedapproachshouldbetakenuponconsidering mitigating circumstances such as age, previous antecedents, and the candid act of pleading guilty. 36. A perusal of the above factors and principles would show that thoughspecificguidelineshavenotbeenintroducedonapolicylevelinIndia, the factors to be seen in awarding sentences are similar to those of other jurisdictions. While awarding sentences for terrorism-related activities, the Courtswillhaveto,notmerelybearinmindthecrimecommittedbutalsothe impact of the same and the propensity of the person to indulge inasimilar crimeinfuture.Theintentbehindprovidingarangeofpunishmentthatcould beawardedforanoffenceistogivetheCourtssufficientdiscretiontoconsider various aggravating and mitigating factorswhileawardingsentences.Though there isnodoubtthatthediscretionhastobeexercisedjudiciously,itcannot be expected to be uniform. In a country like India, where there are possibilities of innocentpersonsbeingencouragedtowardsterrorism,itisnot merelytherightsoftheconvictthathavetobeconsideredbutalsotheimpact ofthesaidconvictbeingallowedtointegratebackintosocietywhichhastobe considered. Crl.A. No.783 of 2024 :1 07: 2024:KER:92808 83. In Shailesh Jasvantbhai v. State of Gujarat33, the Apex Court had occasion to lay down the principles that are to be borne in mind while imposing sentence. It was observed as under: "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function oftheState.Itcouldbeachievedthroughinstrumentalityofcriminal law. Undoubtedly, there is a cross-cultural conflictwherelivinglawmustfind answer to the new challenges and the courts are required to mould the sentencingsystemtomeetthechallenges.Thecontagionoflawlessnesswould undermine social order andlayitinruins.Protectionofsocietyandstamping out criminal proclivity must be the object of law which must beachievedby imposing appropriatesentence.Therefore,lawasacornerstoneoftheedifice of 'order' should meetthechallengesconfrontingthesociety.Friedmaninhis LawinChangingSocietystatedthat:'Stateofcriminallawcontinuestobe--as itshouldbe--adecisivereflectionofsocialconsciousnessofsociety.'Therefore, inoperatingthesentencingsystem,lawshouldadoptthecorrectivemachinery ordeterrencebasedonfactualmatrix.Bydeftmodulation,sentencingprocess besternwhereitshouldbe,andtemperedwithmercywhereitwarrantstobe. The facts and given circumstancesineachcase,thenatureofthecrime,the mannerinwhichitwasplannedandcommitted,themotiveforcommissionof the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration." 84. The observations in State Of Punjab v. Prem Sagar And 33 [( 2006) 2 SCC 359] Crl.A. No.783 of 2024 :1 08: 2024:KER:92808 Others34,are pertinent, which read as under: "5. Whether the Court while awarding a sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality, would no doubt depend upon the facts and circumstancesof each case. While doing so, however, the nature of the offence said to have been committed by the accused plays an importantrole.Theoffenceswhich affect public health must be dealt with severely. For the said purpose, the courts must notice the object for enacting Article 47 of the Constitution of India. 6. There are certain offences which touch our social fabric. We must remindourselvesthatevenwhileintroducingthedoctrineofpleabargainingin theCodeofCriminalProcedure,certaintypesofoffenceshadbeenkeptoutof the purview thereof. While imposing sentences, the said principlesshouldbe borne in mind. 7. A sentence is a judgment on conviction of a crime. It is resorted to after a person is convicted of the offence. It is the ultimate goal of any justice-delivery system. Parliament, however, in providing for a hearing on sentence,aswouldappearfromsub-section(2)ofSection235,sub-section(2) of Section 248, Section 325 as also Sections 360 and 361 of the Code of Criminal Procedure, has laid down certain principles. The said provisions lay down the principle that the court in awarding the sentence must take into consideration a large numberofrelevantfactors;sociologicalbackdropofthe accused being one of them. 8. Although a wide discretion has been conferred upon the court, the 34 [A IR 2008 SCW 4805] Crl.A. No.783 of 2024 :1 09: 2024:KER:92808 same must be exercised judiciously.Itwoulddependuponthecircumstances in which the crime has been committed and his mental state. Age of the accused is also relevant. 9.Whatwouldbetheeffectofthesentencingonthesocietyisaquestion which has been left unanswered by the legislature.Thesuperiorcourtshave comeacrossalargenumberofcaseswhichgotoshowanomaliesasregards thepolicyofsentencing.Whereasthequantumofpunishmentforcommission of a similar type of offence varies from minimum to maximum, even where same sentence is imposed, the principles applied are found to be different. Similar discrepancies have been noticed in regard to imposition of fine." 85. Havingevaluatedtheprinciplesabove,wenotethattheinterest ofjusticeshallbesubservedifthesentenceimposedontheappellantforthe offence under Sections 38 and 39 of the UA(P)Actismodifiedas8yearsof Rigorous Imprisonment instead of 10 years Rigorous Imprisonment as imposed by the learned Special Judge.Toarriveatthesaidfinding,wehave taken note of the following aspects: a) The accused was 29 years old at the time of the commission of the offence. b)The16thaccusedwhohadpleadedguiltytothechargewasimposed prisonsentenceof5yearsRIafterrecordinghispleaofguiltyandthe Crl.A. No.783 of 2024 :1 10: 2024:KER:92808 2nd accused was imposed imprisonment for 7 years by the Trial Court, which was confirmed by the Apex Court. We have noted the nature and gravity of the accusations against the appellant vis a vis that of the accused Nos. 2 and 16. c) Thereisnocasefortherespondentsthattheappellantisinvolvedin any other crimes. d) His actions were motivated by religious ideologies. e) TheappellantbeinganIndiancitizen,thesentenceimposedmustbe stern but tempered with some amount of mercy. f ) There are prospects of rehabilitation and at the same time, the sentence imposed by us will act as a deterrent to theappellantand others. g) The virtual and physical contact of the accused to seek support for the proscribed organization and further its activities attracting Sections38and39oftheUAPAwasonlywithPWs1and2andnota large number of persons. Crl.A. No.783 of 2024 :1 11: 2024:KER:92808 g) Wehavealsotakennoteofthenatureofthecrimecommittedbythe appellant, the manner in which it was planned and committed, the motive for the commission of the crime, and the conduct of the accused during trial. 86. Resultantly, these appeals are disposed of as under: a) We confirm the findings of the learned Special Judge finding the appellantguiltyfortheoffenceunderSections38andSection39of the UA(P) Act and under Section 120B of theIPCr/w.Sections38 and Section 39 of the Act. b) The sentence imposed by the learned Sessions Judge for Five (5) yearsfortheoffenceunderSection120BoftheIPCr/w.Sections38 and 39 of the UA(P) Act are confirmed. c) For the offence under Section 38 of the UA(P) Act, we are of the view that Rigorous Imprisonment of Eight (8) years and to pay a fine of Rs.50,000/- and indefaulttoundergoSimpleImprisonment for one year will subserve the interest of justice. Crl.A. No.783 of 2024 :1 12: 2024:KER:92808 d) For the offence under Section 39 of the UA(P) Act, Rigorous Imprisonment of Eight (8) years and to pay a fine of Rs.50,000/- and in default to undergo Simple Imprisonment for one year will subserve the interest of justice. e) TothatextentthesentenceimposedbythelearnedSessionsJudge will stand modified. f ) The substantive sentence of imprisonment ordered by us shall run concurrently.TheappellantshallbeentitledtosetoffunderSection 428 of the Cr.P.C. All other conditions shall remain as such. Sd/- RAJA VIJAYARAGHAVAN V, JUDGE Sd/- JOBIN SEBASTIAN, JUDGE PS &APM/09/12/24