Kerala High Court
A.Muhammed Navas vs Station House Officer on 31 July, 2009
Author: K.T.Sankaran
Bench: K.T.Sankaran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 3103 of 2009()
1. A.MUHAMMED NAVAS, AGED 31 YEARS,
... Petitioner
Vs
1. STATION HOUSE OFFICER,
... Respondent
2. STATE OF KERALA,
For Petitioner :SRI.C.KHALID
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :31/07/2009
O R D E R
K.T.SANKARAN, J.
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B.A. NO. 3103 OF 2009
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Dated this the 31st day of July, 2009
O R D E R
Accused No. 14 (A.Muhammed Navas) in Crime No. 356 of 2008 of Edakkad Police Station has filed this Bail Application under Section 439 of the Code of Criminal Procedure.
2. The offences alleged against the petitioner are under Sections 13(2), 16,18,38,39 and 40 of the Unlawful Activities (Prevention) Act and under Sections 120 B, 121,121-A, 124-B, 465 and 471 of the Indian Penal Code. The petitioner was arrested on 7.11.2008 and he is in judicial custody.
3. The learned Director General of Prosecutions submitted that there are 23 accused persons included in the case, of whom 14 persons were arrested, 4 persons (Accused Nos. 7,8,9 and 10) died in an encounter in Jammu and Kashmir while they attempted to cross the border and 5 persons are yet to be arrested. He also submitted that Accused No.15 escaped from Jammu and Kashmir.
4. The Court of Session, Thalasseri dismissed the application B.A. NO.3103 OF 2009 :: 2 ::
for bail filed by the petitioner on 24-11-2008. The petitioner moved the High Court in Bail Application No.322 of 2009 which was dismissed as per the order dated 29th January 2009.
5. Sri.C.Khalid, the learned counsel for the petitioner submitted that the petitioner is a painter by profession and he is eking out his livelihood by the meagre income from his work as a painter. He has to maintain his family. He was never associated with any religious or regional organisations in India or abroad. The petitioner states that the police has branded him as a supporter of an organisation called "Thareekath", which is allegedly engaged in antinational activities. The learned counsel submitted that the investigation has not resulted in bringing out any material to connect the petitioner with the alleged offence. The petitioner has also made an allegation that the investigating agency has filed a "dubious charge sheet" to prevent the release of the petitioner under the proviso to Section 167 (2) of the Code of Criminal Procedure.
6. The Sub Inspector of Police suo motu registered the case. He arrested the first accused Abdul Jaleel on 18-10-2009 on getting information that he was aiding and associating with a banned B.A. NO.3103 OF 2009 :: 3 ::
organisation in Jammu and Kashmir. After completing the investigation, charge sheet was filed. It is submitted that a report was filed before Additional Chief Judicial Magistrate's Court, Thalasseri to continue the investigation under Section 173 (8) Cr.P.C. and that further investigation is in progress.
7. The learned Director General of Prosecution submitted the following. The accused indulged in a conspiracy to facilitate terrorism. Classes were arranged at different places in Kannur, Malappuram and Ernakulam Districts for that purpose. In the meeting held on 14-8-2009 at Neerchal, it was decided to send delegates to Jammu and Kashmir so that they could get training in arms and ammunition from Lashker- E- Thoiba in Jammu and Kashmir and Pakisthan. After the training they were to commit terrorist activities in the State of Kerala. From Kannur, accused Nos. 2, 3, 7, 8, 10, 13, 15, 20 went to Hyderabad in different groups. On 11-9-2008, a meeting of these persons was held at Hyderabad under the leadership of the third accused, namely, Naseer alias Thadiyantavida Naseer alias Haji. The selected five among the accused, that is, accused Nos. 7 to 10 and 15 proceeded to Delhi on 12-9-2008 with forged identity cards provided by the third accused. B.A. NO.3103 OF 2009 :: 4 ::
Accused No.20 along with his wife had reached at Delhi earlier. The five member team reached at Delhi on 13-9-2008. Accused No.20 arranged for their stay at Delhi. On 14-9-2008, they proceeded to Jammu and Kashmir and reached at Jammu on 15-9-2009. Thereafter, they proceeded to Shrinagar. Accused No.20 sent the five member team with another group of persons at Shrinagar. The five member team associated themselves with Lashker- e- Thoiba comprising Pakistanees and Kashmirees. The five member team got intensive training in using arms and ammunition and they attended training at various places for advocating and facilitating terrorism. They waged war against the nation. Accused Nos.7 to 10 died in an encounter. Accused No.15 escaped.
8. The 3rd accused played major part in the whole episode, while accused No.11, Ibrahim Moulavi alias Bai is the master brain in the conspiracy. The different accused persons performed the duties assigned to them, like arranging classes and attending the classes, arranging train tickets, providing shelter to various persons, procuring forged identity cards, getting themselves trained by Lashker-e-Thoiba etc. Accused No.23 provided financial assistance for facilitating terrorism.
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9. Investigation also revealed that Accused No.10 (Varghese, son of Joseph, Thammanam, Ernakulam ) was converted to Islam. He was later known as Muhammad Yasin. He died in the encounter in Jammu and Kashmir.
10. The prosecution alleges that the petitioner (Accused No.14) arranged the room at Neerchal for taking the classes to advocate terrorism. He is a member of the conspiracy. He attended the classes and also took classes. He also provided shelter at his residence to the wife of Accused No.15, while accused No.15 was in Jammu and Kashmir.
11. The case diary reveals that the selected five member team among the accused persons were given intensive training in Jammu and Kashmir. They had spent days together in adverse climatic conditions for that purpose. It is also revealed that even in Kerala, several classes were held. Persons from outside the State also took classes. The participants were greatly influenced by the speeches inciting terrorism and the need for terrorism. The classes were held in a highly sensitive tone.
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12. It is true that the petitioner is in judicial custody since 7.11.2008. The question is not whether how long a person is in judicial custody, but whether it is feasible to release him on bail in the facts and circumstances of the case. Counting of the days of detention is not the criterion to be adopted in all cases. Facts and circumstances may vary in each case. Terrorism is an evil affecting the life and liberty of peace loving people. Terrorism has no barriers. It may strike anybody at any time. Any amount of precautionary measures and security arrangements may prove futile to combat terrorism. Fundamental right to individual liberty is certainly valuable. But when it is pitted against the life and liberty of the people at large, it becomes insignificant. Terrorism affects the growth of the nation; the resources of the nation have to be utilised for combating terrorism; it could be utilised in better ways for the betterment of the people. Offences against individuals are to be distinguished from offences affecting the nation and the people at large. Parameters to be adopted in the matter of considering the plea for bail would also be different in these two types of cases. A strict approach in the latter category of cases is justified. Sympathy has no role in dealing with such cases.
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13. The submission made by the learned Director General of Prosecution that if the petitioner is released on bail, he would certainly tamper with the evidence and influence and intimidate the witnesses, is worthy of acceptance. It is also likely that the petitioner may indulge in similar prejudicial activities, if bail is granted.
For the aforesaid reasons, the Bail Application is dismissed.
(K.T.SANKARAN) Judge