Kerala High Court
Shareef @ Mohammed Yusuf @ Farooq vs State on 24 June, 2013
Author: M.L.Joseph Francis
Bench: K.T.Sankaran, M.L.Joseph Francis
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
FRIDAY, THE 2ND DAY OF AUGUST 2013/11TH SRAVANA, 1935
CRL.A.No. 1030 of 2013 (C)
AGAINST THE ORDER IN CMP.NO.320/2013 IN SC NO.2/2013 OF THE SPECIAL
COURT FOR TRIAL OF NIA CASES,KERALA, ERNAKULAM DATED 24.6.2013.
APPELLANT/RESPONDENT/ACCUSED NO.7:
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SHAREEF @ MOHAMMED YUSUF @ FAROOQ, AGED 38 YEARS
S/O YUSUF, R/O PB NO.8451, NAIF ROAD
DEIRA, DUBAI, NATIVE OF KOLLARKKAD HOUSE
KUDALMERKULA P.O., PERUMUDE, KUMBALA
KASARAGODE DISTRICT.
BY ADVS. SRI.I.V.PRAMOD
SRI.B.VINOD
RESPONDENT/PETITIONER/COMPLAINANT:
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STATE
REPRESENTED BY NATIONAL INVESTIGATION AGENCY
ERNAKULAM- 682 018.
BY SRI.M.AJAY, SPECIAL PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-08-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX
ANNEXURE A1 TRUE COPY OF THE REPORT FILED BY THE PROSECUTOR
FOR EXTENSION OF TIME, DATED 20.6.2013.
ANNEXURE A2 TRUE COPY OF THE FINAL REPORT FILED AGAINST
ACCUSED NOS.1 TO 4 DATED 29.4.2013.
ANNEXURE A3 TRUE COPY OF THE OBJECTION DATED 22.6.2013.
//TRUE COPY//
AHZ/
K.T.SANKARAN &
M.L.JOSEPH FRANCIS, JJ.
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CRL.A. NO.1030 OF 2013 C
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Dated this the 2nd day of August, 2013
JUDGMENT
K.T.Sankaran, J.
The appellant is accused No.7 in S.C.No.2 of 2013 on the file of the Special Court for Trial of NIA cases, Kerala, Ernakulam The allegation against the accused is that they committed the offences under Sections 489B, 489C read with Section 34 of the Indian Penal Code and Sections 15 and 17 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as 'UAP Act').
2. The appellant was arrested on 26.3.2013 at 5.10 hours at Indira Gandhi International Airport, New Delhi on his arrival from Abu Dhabi. He was produced before the Special Judge for NIA cases at New Delhi and on the issuance of a transit warrant, the appellant was produced before the court below on 27.3.2013. He was remanded to judicial custody. The investigation was not completed within ninety days. The Public Prosecutor filed an application under CRL.A. NO.1030 OF 2013 C :: 2 ::
the first proviso to sub-section (2) of Section 43D of UAP Act. In that application, extension of time upto 180 days for completing the investigation was prayed for. The court below allowed the application filed by the Public Prosecutor overruling the objections raised by the appellant. The Criminal Appeal is filed against the said order passed by the court below.
3. Sri.Pramod, the learned counsel appearing for the appellant, submitted that the order impugned is unsustainable on several grounds. He submitted that the reasons stated in the application filed by the Public Prosecutor for extension of the period for completing the investigation are not sufficient for invoking the proviso to sub-section (2) of Section 43D of the UAP Act. It is submitted that the requirements of the said proviso have not been satisfied in the present case and, therefore, the court below was not justified in granting the prayer for extension of time. The learned counsel also submitted that originally the offences alleged against the accused were only under Sections 489B and 489C read with Section 34 of the Indian Penal Code. Sections 15 and 17 of the UAP Act were subsequently included. However, going by the CRL.A. NO.1030 OF 2013 C :: 3 ::
allegation made by the respondent, the appellant has indulged in financial terrorism. But financial terrorism was included as an offence under the UAP Act only by the Unlawful Activities (Prevention) Amendment Act, 2012 (Act 3 of 2013), which came into force only on 3.1.2013. The learned counsel submitted that the offence was alleged to have been committed before coming into force of Act 3 of 2013. Extension of the period for completing the investigation, so as to avoid the opertion of the proviso to Section 167(2) of the Code of Criminal Procedure, could be made only if an offence is made out under the UAP Act. In the case of offences under Sections 489B and 489C read with Section 34 of the Indian Penal Code, the period for completing the investigation cannot be extended by the court.
4. In reply, Sri.M.Ajay, the learned Special Public Prosecutor submitted that the allegations made against the appellant would constitute a terrorist act under clause (a) of Section 15 of the UAP Act. The learned Special Public Prosecutor submitted that the definition of "property" under Section 2(h) of the UAP Act is to be read along with Section 15 of the said Act. Sri.Ajay submitted that CRL.A. NO.1030 OF 2013 C :: 4 ::
even by the interpretation of terrorist act as defined in the UAP Act, before its amendment by Act 3 of 2013, financial terrorism would also be taken in by Section 15. It is also submitted that the amendment of Section 15 by Act 3 of 2013 is only clarificatory in nature.
5. Before dealing with the contentions touching upon the provisions of the UAP Act, we think it would be relevant to advert to some more facts of the case. Originally, the case was registered at Thaliparamba Police Station as Crime No.711 of 2011 under Sections 489B and 489C of the Indian Penal Code against accused Nos.1 to 3, on the seizure of counterfeit Indian Currency Notes to the tune of `8,91,000/- on 18.9.2011. The investigation of the case was taken over by the National Investigation Agency ('NIA' for short) as per the order dated 15.11.2011 passed by the Central Government. When the investigation conducted by the NIA revealed that other accused persons were also involved and offences under Sections 15 and 17 of the UAP Act were committed by the accused, a report to that effect was filed before Court and, accordingly, Sections 15 and 17 of the UAP Act were included. A charge sheet dated 29.4.2013 CRL.A. NO.1030 OF 2013 C :: 5 ::
was submitted against accused Nos.1 to 4 and a petition was also filed to continue further investigation, under Section 173(8) of the Code of Criminal Procedure. In the charge sheet filed against accused Nos.1 to 4, under the heading "facts disclosed during the investigation", it is inter alia stated thus:
"17.1. This is a case of printing and smuggling Fake Indian Currency Notes (hereinafter referred to as FICN) by the countries like Pakistan who are inimical to India with an intention to destabilize the Indian Economy as a part of Financial Terrorism (Maashi-Jihad).
Wherein the accused Pradeep Kumar (A1) and Ashish MP (A3) involved in smuggling and circulating of FICN into India with an intention to make easy money, while the accused Kamal Haji (A2) and Aboobacker Haji (A4) took advantage of this to make easy money and achieve their goal and joined their hands with the persons involved in printing and smuggling FICN into India and smuggled FICN into India.
xxxx xxxx xxxx 17.9. On 02.11.2012, the accused Aboobacker Haji (A4) was arrested on 02.11.2012 at 0530 Hrs on his arrival at Indira Gandhi International Airport, New Delhi and produced before this Hon'ble Court on 03.11.2012 and got the police custody of the accused Aboobacker CRL.A. NO.1030 OF 2013 C :: 6 ::
Haji (A4). During the custody the accused Aboobacker Haji (A4) voluntarily admitted the guilt of committing this offence and revealed that he established Maintenance Company in the name of "Abu Hajar' and incurred loss due to the then recession and he was forced to indulge in circulating FICN as advised by the accused Sihab (A6). He disclosed that as per the advice of Sihab (A6) he met the accused Shareef (A7) and got impressed with his ideology when he told him that the circulation of FICN in India will destabilize the Indian economy as a part of financial terrorism (Maashi-Jihad) which will give Pakistan an upper hand over India. He admitted that he instigated the accused Pradeep Kumar (A1) with the help of his brother Kamal Haji (A2) to circulate FICN in India and invited the accused Pradeep Kumar (A1) and Kamal Haji (A2) to Abu Dhabi to check the quality of FICN. ......"
6. In the report submitted by the Special Public Prosecutor for extension of time to complete the investigation, it was stated thus:
"It is submitted that the Investigation Officer is of the opinion that the Counterfeit/Fake Indian Currency Notes (FICN) seized in this case from A1 to A3 were procured by them from A4. A4 had in turn procured the same from A6 and A7 while in UAE. It has to be noted that A7 was in UAE throughout that time. On CRL.A. NO.1030 OF 2013 C :: 7 ::
questioning, A7 has revealed that the source of the FICN was one Abdul Rehman @ Rehman Bhai, a Pakistani national working in Dubai. Investigation is in progress to identify the said Rehman Bhai. All these angles are yet to be investigated since the events were from the UAE.
As per the above, it has occurred to me that, the acts of the accused and their accomplices were intended to destabilize the financial stability and internal security of India. It is submitted that the FICN are printed in Pakistan and brought to India through Dubai and Abu Dhabi. In order to obtain evidence that exist in UAE, the NIA has initiated a request under the Mutual Legal Assistance Treaty intended to the Sovereign Authority of UAE. It is required that an officer from NIA need to proceed to UAE and collect the evidence available there. Only then the investigation in this case will be full and final. For these purposes, some more time is required. The NIA will be unable to complete the same within 90 days which falls on 24.06.2013."
7. The appellant filed a detailed objection to the application for extension and stated that no grounds are made out for extension of time.
CRL.A. NO.1030 OF 2013 C :: 8 ::
8. Sub-section (2) of Section 43D of the UAP Act reads as follows:
"43D. Modified application of certain provisions of the Code.-- (1) ......
(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub-section (2),--
(a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days"
respectively; and
(b) after the proviso, the following provisos shall be inserted, namely:--
"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days: CRL.A. NO.1030 OF 2013 C :: 9 ::
Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.""
9. The Supreme Court in Hitendra Vishnu Thakur and others v. State of Maharashtra and others ((1994) 4 SCC 602), considered the scope and ambit of clause (bb) of sub-section (4) of Section 20 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ('TADA' for short), which is similarly worded as the proviso to sub-section (2) of Section 43D of the UAP Act. The difference in the proviso available under TADA is that instead of the word "may" under the UAP Act, the word "shall" is provided in the proviso to Section 20 (4) of TADA. Moreover, the original period for completing investigation is 180 days and extension is possible upto one year. The Supreme Court held thus:
"23. ..... Thus, for seeking extension of time under clause (bb), the public prosecutor after an CRL.A. NO.1030 OF 2013 C :: 10 ::
independent application of his mind to the request of the investigating agency is required to make a report to the Designated Court indicating therein the progress of the investigation and disclosing justification for keeping the accused in further custody to enable the investigating agency to complete the investigation. ........ The report of the public prosecutor, therefore, is not merely a formality but a very vital report, because the consequences of its acceptance affects the liberty of an accused and it must, therefore, strictly comply with the requirements as contained in clause (bb). ......... The contents of the report to be submitted by the public prosecutor, after proper application of his mind, are designed to assist the Designated Court to independently decide whether or not extension should be granted in a given case. Keeping in view the consequences of the grant of extension i.e. keeping an accused in further custody, the Designated Court must be satisfied for the justification, from the report of the public prosecutor, to grant extension of time to complete the investigation. ......... In the absence of an appropriate report the Designated Court would have no jurisdiction to deny to an accused his indefeasible right to be released on bail on account of the default of the prosecution to file the challan within the prescribed time if an accused seeks and is prepared to furnish the bail CRL.A. NO.1030 OF 2013 C :: 11 ::
bonds as directed by the court. Moreover, no extension can be granted to keep an accused in custody beyond the prescribed period except to enable the investigation to be completed and as already stated before any extension is granted under clause (bb), the accused must be put on notice and permitted to have his say so as to be able to object to the grant of extension."
10. Going by the principles laid down by the Supreme Court in Hitendra Vishnu Thakur and others v. State of Maharashtra and others ((1994) 4 SCC 602), we are of the view that the court below has considered all the relevant aspects and allowed the prayer made for extension of time to complete the investigation. The application filed by the Special Public Prosecutor would also satisfy the necessary requirements for extension of time. We do not find any illegality, irregularity or impropriety in the order passed by the court below.
11. To comprehend the contention put forward by the learned counsel for the appellant that Section 15 of the UAP Act before its amendment by Act 3 of 2013, does not take in financial terrorism, it CRL.A. NO.1030 OF 2013 C :: 12 ::
would be appropriate to refer to Section 15 of the UAP Act before its amendment and the amendments brought in by Act 3 of 2013. Section 15 of the UAP Act (before its amendment by Act 3 of 2013) reads as follows:
"15. Terrorist act.-- Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or CRL.A. NO.1030 OF 2013 C :: 13 ::
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
Explanation.-- For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the Official Gazette by the Central Government as a public functionary." CRL.A. NO.1030 OF 2013 C :: 14 ::
12. Section 15 of the principal Act was amended by Section 4 of Act 3 of 2013, which reads as follows:
"4. Amendment of Section 15.-- Section 15 of the principal Act shall be renumbered as sub-section (1) thereof and in sub -section (1) as so renumbered, --
(i) in the opening portion, after the word "security", the words "economic security", shall be inserted;
(ii) in clause (a), after sub-clause (iii), the following sub-clause shall be inserted, namely ---
"(iii-a) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or;
(iii) in clause (c), for the words "any other person to do or abstain from doing any act,", the words "an international or inter-governmental organisation or any other person to do or abstain from doing any act; or"
shall be substituted;";
(iv) for the Explanation, the following Explanation shall be substituted, namely---
Explanation.-- For the purpose of this sub-section,--
(a) "public functionary" means the constitutional authorities or any other functionary notified in the Official CRL.A. NO.1030 OF 2013 C :: 15 ::
Gazette by the Central Government as public functionary;
(b) "high quality counterfeit Indian currency"
means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule;
(v) after sub-section (1), the following sub-section shall be inserted, namely ---
"(2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule"."
13. To apply Section 15 before its amendment in 2013, an act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in a foreign country should be done by the accused concerned. The opening words of Section 15 mentioned above were followed by three clauses as (a), (b) and (c) which alone would constitute a terrorist act. To apply clause (a), it is sufficient if the act is done by CRL.A. NO.1030 OF 2013 C :: 16 ::
using "any other means of whatever nature". But the act mentioned in clause (a) to Section 15 is further classified under four sub- clauses as (i) to (iv). Sub-clause (ii) deals with "loss of or damage to or destruction of property". "Property" is defined in Section 2(h) of the UAP Act as follows:
""(h) "property" means property and assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and legal documents, deeds and instruments in any form including electronic or digital, evidencing title to, or interest in, such property or assets by means of bank credits, travellers' cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit, cash and bank account including fund, however acquired;"
14. We are of the view that even without the insertion of the words 'economic security' in Section 15, the word "security" occurring in Section 15 of the Act before its amendment would cover 'economic security' as well. In view of the definition of "property" in Section 2(h), by using any means of whatsoever in nature, loss is caused to the property, it would attract sub-clause (ii) of clause (a) of Section 15 before its amendment by Act 3 of 2013. Property CRL.A. NO.1030 OF 2013 C :: 17 ::
includes cash, bank account and funds. The finance of the country is included in the definition of property. If any loss is caused to the finance of the country by an act on the part of the accused with intent to threaten the unity, integrity, security or sovereignty of India, it would attract Section 15 of the Act.
15. Since we have held that the Unlawful Activities (Prevention) Act applies on the allegation made by the prosecution, the contention put forward by the appellant that extension of the period to complete investigation is not possible, has necessarily to fail.
For the aforesaid reasons, we dismiss the Criminal Appeal.
(K.T.SANKARAN) Judge (M.L.JOSEPH FRANCIS) Judge ahz/