Bangalore District Court
State Of Karnataka vs No.1 : Rahim Khan on 13 October, 2020
1
SC 513/2017
IN THE COURT OF XLIX ADDITIONAL CITY CIVIL
& SESSIONS JUDGE
[Spl Court for trial of NIA Cases] at Bengaluru (CCH-50)
Present: Sri Venkatesh R Hulgi, B.Com., LL.B.(Spl)
LI Adnal City Civil & Sessions Judge
C/c of XLIX Additional City Civil & Sessions
Judge and Judge, NIA Special Court, Bengaluru.
Date: 13th day of October 2020
S.C. No. 513/2017
Complainant : State of Karnataka
represented by P.I.,
Commercial Street Police
Bangalore
(By Special Public Prosecutor)
Vs
Accused No.1 : Rahim Khan
S/o Late Sharif Khan,
Aged about 33 years,
No.10-2-483,
Khanqua-E-Sarware Allam,
(Jagadguru Ashrama)
Mehendi Pattanam,
Asifnagar, Hyderabad,
Andra Pradesh.
Accused No.2 : Meer Nasiruddin,
S/o Late Meer Ahmed Mohinuddin,
2
SC 513/2017
Aged about 32 years,
No.10-2-483,
Khanqua-E-Sarware Allam,
(Jagadguru Ashrama)
Mehendi Pattanam,
Asifnagar, Hyderabad,
Andra Pradesh.
( By Sri. T.A. Basavaraju, Advocate)
01 Nature of Offence U/S.120B of IPC and Secs. 10
& 13 of Unlawful Activities
(Prevention) Act 1967
02 Date of Commission of 06.04.2011
Offence
03 Date of F.I.R. 06.04.2011
04 Date of Arrest of the
Accused A1 07.04.2011
A2 07.04.2011
05 Date of Commencement
of Evidence 26.02.2018
06 Date of Closure of 27.08.2018
Evidence
07 Date of Pronouncement
of Judgment 13.10.2020
08 Result of the Case Acting under Sec.235(1) of
Cr.P.C., Accused Nos.1 & 2 are
acquitted for the offences
3
SC 513/2017
punishable u/S 10 & 13 of UAP
Act, 1967 & u/S 120B of IPC.
(Venkatesh R Hulgi)
LI Addl City Civil & Sessions Judge (CCH-52)
C/c XLIX Addl City Civil & Sessions Judge
& Judge, NIA Special Court, Bengaluru, (CCH-50)
JUDGMENT
This is a Charge sheet submitted by Police Inspector, Commercial Street Police Station against accused Nos.1 and 2 for the offences punishable under Sections 3 & 10 of the Unlawful Activities (Prevention) Act, 1967 and Section 120B of India Penal Code.
2. The facts of the case in brief are as under:-
That the accused are the members of a religious association called "Siddiq Deendar Anjuman Channabasaweshwara". The Central Government; noticing that the above association has been involved in unlawful activities has, declared the same as an "unlawful association" by its Notification published in the official Gazette dated 20.3.2008 as required under Section 3 of U.A.P Act, 1967. Despite the fact 4 SC 513/2017 that the aforesaid association is declared as unlawful association, the accused being the members of the same have conspired together to commit the offences and in furtherance of such a conspiracy on 6.4.2011, during the evening hours by wandering in Jumma Masjid Road of Commercial Street Police Station had distributed the pamphlets containing messages of the said unlawful association in "Urdu" language and in order to develop the said association in a secrete manner started collecting funds from the public and thereby they have violated the Government Order and thus, they have committed the aforesaid offences. Hence, the Charge sheet.
3. The presence of the accused is secured and they are released on bail. The prosecution papers are duly served on the accused as required under Section 207 of Cr.P.C. Thereafter, charge for the aforesaid offences is framed, read over and explained to both the accused. Both the accused pleaded not guilty and claimed to be tried.
4. To prove its case, the prosecution has examined in all 9 witnesses as PWs 1 to 9 and got marked Exs.P1 to P32. 5
SC 513/2017 MOs 1 to 4 are also marked for prosecution. During the cross- examination of prosecution witnesses accused have got marked Exs.D1 to D3. After the evidence of prosecution is closed, the Statement of the accused under Section 313(b) of Cr.P.C is recorded. Accused have denied every incriminating statement appearing against them and not lead any evidence in their defence. Total denial of the case of prosecution and their false implication is the defence of the accused.
5. I heard the arguments of both the sides and perused the records. The following points emerge for my consideration.
POINTS
1) Whether the prosecution proves beyond doubt that accused Nos. 1 and 2 are the members of declared and banned unlawful association/organization called "Siddiq Deendar Anjuman Channabasaweshwara"
and thereby they have committed an offence punishable under Section 10 of Unlawful Activities (Prevention) Act, 1967?
2) Whether the prosecution further proves beyond doubt that in furtherance of their respective membership both the accused have mutually agreed to carried out and to spread the activities of the above referred 6 SC 513/2017 declared and banned association and thereby they have committed the offence of Criminal Conspiracy punishable under Section 120B of Indian Penal Code?
3) Whether the prosecution further proves beyond doubt that accused Nos. 1 and 2 being the members of above referred unlawful association with an intention to carry out the activities of the said association, on the evening of 6.4.2011 on the public road,which runs in front of Jumma Masjid within the jurisdiction of Commercial Street Police Station, not only distributed the Urdu language pamphlets and hand bills pertaining to the said association to the public, but also collected funds from the public and thereby they have violated the conditions of ban imposed by the Government of India, while banning the said association and thereby they have committed an offence punishable under Section 13 of Unlawful Activities (Prevention) Act, 1967 R/W Section 120B of IPC?
4) What order?
6. My findings on the above points are as under;
Point No.1: In the Negative
Point No.2: In the Negative
Point No.3: In the Negative
Point No.4: As per the final order for the
following;
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SC 513/2017
REASONS
7. Points No.1 to 3: As these points are interlinked to each other, hence they have been taken together for my common discussion to avoid repetition of facts and evidence on record.
8. As noted above, it is the specific case made out by the prosecution that the Central Government; looking to the fact that "Siddiq Deendar Anjuman Channabasaweshwara" has been involved in unlawful activities has declared the same as unlawful association by issuing a notification published in the official Gazette dated 20.3.2008 as required under Section 3 of U.A.P. Act, 1967. Further, it is the case of prosecution that knowing fully well that the above referred association is declared as unlawful association, the accused being the members of the same conspired together to commit the offences and in furtherance of such conspiracy, both the accused on
6.4.2011 started collecting funds and donations from the public in order to develop the association in a secrete manner and also they started distributing the pamphlets containing messages of the said association in "Urdu" language and thereby they have 8 SC 513/2017 violated the Government Order and consequently they have committed the aforesaid offences.
9. Therefore, at first, the prosecution has to prove that above referred association has been declared as an unlawful association as required under the law. Secondly, it has to prove that the accused at the relevant point of time were the members of the said association and lastly, the prosecution has to prove that accused being the members of the said unlawful association have conspired together to commit the offences and in furtherance of such conspiracy, they distributed the pamphlets containing messages of the said association in "Urdu" language by wandering in Jumma Masjid Road of Commercial Street Police Station and they collected donations and funds from the public in a secrete manner for the development of the said association and thereby they have committed the afore mentioned offences.
10. To prove that the above association is declared as unlawful association, apart from relying upon the oral evidence of PW9 and 10, the prosecution has produced the copy of 9 SC 513/2017 Gazette Notification marked at Ex.P30. Ex.P30(a) is the relevant portion, which indicates that the Central Government has noticed the illegal activities of the aforesaid association and declared the same as an unlawful association by exercising powers under Section 3 of U.A.P. Act.
11. There is no cross-examination by the defence on this document and also on the above facts. The document at Ex.P30 is not challenged by the accused. However, during the course of argument, the Counsel for accused has fairly submitted that he has no any dispute that the Central Government has declared the above association as an unlawful association. Therefore, I have no hesitation in holding that the prosecution has proved that the "Siddiq Deendar Anjuman Channabasaweshwara" is an unlawful association.
12. Now, let me come to the evidence portion of the case in the light of the facts made out by the prosecution during the trial. The story projected by the prosecution during the trial is that, noticing the conduct of the accused persons and doubting about their activities, Complainant Tanveer Ahmed Shariff files 10 SC 513/2017 a complaint at Ex.P1 on the night of 7.4.2011 at 2.30 am. Pursuant to such complaint, immediately a case is going to be registered in Crime No. 61/2011 of Commercial Street Police Station and after securing the panchas, I.O proceed to the spot in the late night at about 3.15 am and arrested both the accused and recovered the incriminating objects from the possession of the accused through a mahazar as per Ex.P2. Thereafter, he take the accused to custody and record their voluntary statements pursuant to which he proceed to the place where accused staying in Bengaluru and seized further incriminating articles from the said place by drawing mahazar at Ex.P19. Later, he recorded the statements of the witnesses in proof of accused collecting funds and donations from the public by distributing the pamphlets to develop the unlawful association named above.
13. To prove the above facts, the prosecution has examined Complainant Tanveer Ahmed Shariff as PW1. In the chief-examination, it is stated by PW1 that he is the Secretary of Jameeatul Ulema-e-Karnataka at the relevant point of time. At about 8 pm he was informed that two persons said to be the 11 SC 513/2017 members of "Siddiq Deendar Anjuman Channabasaweshwar"
are collecting funds from the public by standing in front of a Masjid situated at Ebrahim Sab Street near Jumma Masjid Road. Therefore, immediately he visited the said place and fund two persons who are the accused. It is further deposed by PW1 that when he visited the accused, at that time they were possessing and distributing certain pamphlets. On enquiry, they revealed that they are the members of the aforesaid unlawful association and they have been collecting donations from the public. It is further deposed by PW1 that immediately he discussed himself with the members of the religion about 4 to 5 hours and later in consultation with the President he decided to handover these persons to Police by setting the law into motion. Accordingly, he went to the Police Station and filed the complaint at Ex.P1, which is in English. He identified his signature on complaint at Ex.P1(a)
14. It is the further evidence of PW1 that immediately thereafter, the Police visited the aforesaid Masjid and caught hold of the accused interrogated them and seized some receipt books, pamphlets, mobile phone, cash and etc., from the 12 SC 513/2017 possession of the accused persons under a mahazar at Ex.P2. He identified his signature in mahazar at Ex.P2(a). Complainant has also identified two mobile phones marked at MOs 1 and 2 and he identified the pamphlets in Urdu at Ex.P3. The pocket note book and hand note book said to be seized from accused are marked at Ex.P4 and P5. The receipt book is marked at Ex.P6. At the end of the evidence, Complainant has deposed to the effect that the association referred to above has no any connection with his religion and according to him acts of accused persons amounted to anti- national activities.
15. Thus, in sum and substance, it is the evidence of PW1 that he found both accused circulating or distributing the pamphlets containing the name of the aforesaid association and he saw them collecting the donations. He has also spoken of arrest of accused and seizure of above articles from the accused under Ex.P2 mahazar.
16. A perusal of Ex.P1 complaint, it becomes very clear that it does not bear the date of filing of the same to the Police. 13
SC 513/2017 In the cross-examination of Complainant, it is elicited that he does not know English and Kannada and he is not fluent in both the languages. He admits that Ex.P1 is not in his own hand writing. But, it has written by somebody. In page No.5 of cross-examination at question No.10, PW1 has given admission that he is unable to say who is the scribe of Ex.P1 and there is no endorsement on the document as to who has written the same. Therefore, it is clear that Ex.P1 is not in the hand writings of the Complainant and he does not know its contents fully. This would be fortified by further admission given by him in the cross-examination.
17. As noted above in the chief-examination, it is stated by Complainant that after visiting the spot he had interaction with the accused and during the said interaction, accused disclosed that they are belonging to the above referred unlawful association. He admits that this fact is not mentioned in Ex.P1 complaint to the question No.8 put in the cross-examination. Further, he has admitted that Ex.P1 complaint do not bear particular date and time as to when it was presented before the Police and there is nothing on the document to show that the 14 SC 513/2017 contents of the same was read over and explained to him and later he put his signature. Thus, as mentioned above, I am unable to hold that Ex.P1 complaint is the one given by Complainant by noticing the aforesaid facts. He has not assigned any reasons as to why late night he went to the Police Station and filed the complaint in midnight at 2.30 am. This also throw shadow of doubt on the evidence of PW1.
18. As mentioned above, the I.O has conducted seizure mahazar in his presence as per Ex.P2 and recovered MOs 1 & 2 and also documents at Ex.P1 to P3. The accused have denied that those articles and papers are belonging to them. The prosecution has not produced any iota of evidence like customer application form, call detail records, etc. to indicate that the said mobile phones are belonging to very accused before the Court. Through out the trial, prosecution has not made any bonafide efforts to produce the above materials to connect the accused with the said Material Objects. Further more, the document at Ex.P3 to P6 pamphlets are in Urdu language. Pocket Note Book containing details about phone numbers, Hand Note Book and Receipt Books are also in Urdu 15 SC 513/2017 language. The prosecution has not made any efforts to produce the translation of those documents, so that the Court can understand its contents. Admittedly, those documents are not in the language of the Court. Therefore, the Court is totally handicapped to understand their contents to come to a definite conclusion that those pamphlets and receipt books are belonging to the aforesaid association and they were distributed by the very accused before the Court. No efforts are made by the prosecution to prove the handwritings of those pamphlets and to prove their contents. Therefore, the Court is unable to accept the case of the prosecution that those materials are belonging to the aforesaid association.
19. As mentioned above, it is the evidence of Complainant that he came to know about the accused through someone else. From whom, he received the information is totally silent. Despite the same, he denied a suggestion as false that Ex.P1 is the document prepared by the Police and his signature was obtained on the same. He further denies a suggestion as false that there is no relationship between accused and the aforesaid association. The prosecution, except examining some 16 SC 513/2017 witnesses, has not produced any cogent documentary evidence to indicate that at the relevant point of time accused were the members of the said association and the pamphlets and the receipt books produced contain the names of said association. This becomes more clear when we examine the evidence of remaining witnesses.
20. To corroborate the evidence of Complainant, prosecution has examined PW5, Abdul Bashid and PW6 Ajmat Ulla. It is the case of prosecution that they are the footpath vendors doing petty business at Commercial Street, where the accused were collecting the donations from the public by distributing the pamphlets. To prove the above, the prosecution has relied upon the evidence of these two witnesses.
21. A perusal of evidence of these two witnesses in chief- examination, they are almost similar. They have been examined to say that these two witnesses had seen the accused for the first time on 6.4.2011 near Commercial Street when they were collecting money from the public at large by passing receipts as acknowledgement of collecting funds. It is stated by 17 SC 513/2017 these two witnesses that they learnt that accused were collecting money on behalf of the above referred unlawful association. In this connection, the Police approached them and got identified the accused by showing the photos. Interesting to note that both these two witnesses have categorically stated that the accused had also collected donations of Rs.50/- each from them, but did not pass any receipt for the same. It is stated by these witnesses that the accused had also collected similar donations from other public. They have been cross-examined by the learned Counsel for the defence. In the cross-examination, it is suggested that these two witnesses have not stated anything in their 161 Statement about giving donations of Rs.50/- each to the accused as deposed in the evidence. They have denied it as false. A perusal of 161 Statement of these two witnesses make it very clear that these witnesses have not stated anything about payment of Rs.50/- each to accused as denied. It is admitted by PW8 Investigating Officer who has recorded their statements during the investigation. It appears to me that in order to avoid production of receipt these two witnesses have deposed 18 SC 513/2017 that though the accused collected funds, but they did not pass any receipts. But, a man of ordinary prudence would insist for receipt whenever he pay donations. Therefore, the conduct of these witnesses appears to be very strange under the facts of the present case. In their cross-examination these two witnesses have clearly admitted that they are deposing before the Court at the instance of Complainant, who asked them to be a witness in the case to implicate the innocent accused persons.
22. Thus, a perusal of evidence of these two witnesses, it becomes very clear they have not identified even single receipt alleged to have been given. Nothing had prevented the prosecution to show the receipts referred to above to those witnesses for identification at the trial. But, for the reasons, best known to it, prosecution has not made any such efforts.
23. Thus, from the evidence of PW1, PW5 and PW6, it becomes very clear , their version is a tutored version and they have no corroboration with each other. Their evidence is not sufficient to hold that the accused at the relevant point of time, 19 SC 513/2017 were the members of the aforesaid unlawful association as mentioned above. Merely on the oral evidence of these witnesses, it is not possible to hold that the accused were belonging to the said association and they were collecting donations. Except the aforesaid three witnesses, prosecution has not examined any other independent witnesses who can speak about the fact that the accused were collecting donations from the public in the name of the above association and they were passing receipts. As noted above, the receipts produced before the Court are in Urdu language and they do not contain the name of donor. The signature on those documents are not proved to be that of the very accused before the Court. The above documents being in Urdu language, their translated copy is not made available to appreciate the case of prosecution. Hence, I am of the opinion that merely on the basis of evidence of PW1, PW5 and PW6, it is not possible to hold that accused are the members of the unlawful association and they were indulging in collection of donations for the same from public by passing receipts.
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24. It is the case of prosecution that, pursuant to the voluntary statements of the accused, they proceeded to the place where they were residing and where they kept incriminating articles. The portion which lead to recovery of incriminating articles are also marked as per Ex.P24 and P25.
25. A perusal of Ex.P24 and P25, it becomes very clear that in Bengaluru, both the accused had stayed in the house of one Smt. Fathima Baigam situated at No.25/1, Pipeline, 'E' Cross, J C Nagar, Bengaluru - 86. Interestingly the said Smt. Fathima Baigam though cited as a witness, (CW7) but not examined before the Court. Thus, it creates doubt in the mind of Court whether really the accused had stayed in her house referred to above. No explanation is offered by the prosecution for non examination of said lady.
26. According to the prosecution when the accused lead them to the said house for recovery of the incriminating articles they took PW3 Mohammed Tafim Ul Maharoop and PW4 Riyaz Ahmed Khan as mahazar witnesses and in their presence they have drawn Ex.P29 mahazar for recovery of incriminating 21 SC 513/2017 articles. Unfortunately, PW3 and PW4 turned hostile to the case of prosecution. They have been cross-examined by the prosecution, but nothing could be elicited from their mouth in support of the case of prosecution. They have stated that no mahazar as per Ex.P19 was drawn in their presence nor anything was recovered in their presence from the accused. These witnesses have gone to the extent of denying that they have given statements as per Ex.P20 and Ex.P21 before the I.O. It is the case of prosecution that in the presence of these two witnesses I.O has seized incriminating articles marked at Ex.P7 to P18 and Ex.P26 to P29, which are in Urdu language. A perusal of those documents, it become very clear that they are literature in Urdu language, which highlight principles of Islam. They are pertaining to the year 1962 or so, they are published by well known publication and therefore, they cannot be said to be incriminating articles in possession of the accused. Mere possessing the books containing literature highlighting once religion is not sufficient to hold that the person in possession of them is an antisocial element. The prosecution has not produced any of the translation of above documents to 22 SC 513/2017 demonstrate that the contained materials which are against the State and they contained anti national contents. Thus, the examination of PW3 and 4 has not served any meaningful purpose to prove contents of Ex.P19 mahazar.
27. Noticing the above the prosecution has examined PW7 Shantha Kumar, Police Constable who claimed to be present at the time of arrest of the accused, preparation of Ex.P2 mahazar and preparation of Ex.P19 mahazar. In the cross-examination, he has admitted that none of the sealed covers containing above articles bear his signature. He admits that he has not produced any documents to indicate that he was on duty at the relevant point of time and he accompanied PW8 Manjunath to the aforesaid places. Therefore, the evidence of PW7 alone do not inspire any confidence to hold that he was all along present with PW8 Manjunath during both the mahazars. Therefore, his evidence alone is not helpful to the prosecution to prove the above facts that too when independent witnesses who are examined as PW3 and PW4 have failed to support the case of prosecution.
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28. PW8 is the first Investigating Officer. His evidence discloses that during 24.9.2008 to 5.7.2011 he was working as PSI, Commercial Street Police Station. According to him, between intervening night of 6 th and 7th of April 2011 at about 2.30 am, the Complainant Tanveer Ahmed Sharif had come to the Police Station and filed the complaint as per Ex.P1. Thus, pursuant to the same, he registered the crime and proceeded to the spot. He claimed that along with Ex.P1, Complainant had annexed two documents viz one receipt containing Urdu letters and Pamphlet, which is also in Urdu, which pertains to "Dindar Anjuman Chennabasawesjwara". But, this fact is not stated by the Complainant himself. It is further evidence of this witness that while giving the complaint, Complainant had informed that two suspected persons were at Beparia Masjid and they were to be examined in respect of documents in their possession. Therefore, immediately he summoned PW2 and PW4 and along with staff he went to the said Masjid and he found both the accused sleeping in the Masjid. But, the evidence of PW2 discloses that Complainant had been to the Police Station along with the accused. This can be seen from the chief-examination 24 SC 513/2017 of PW2 and 3, wherein they have stated that PW1 himself took both the accused to the Police Station besides putting law into motion. Hence, the above evidence of PW8 regarding identification of accused for the first time in Masjid appears to be a concocted story. According to the PW8, when he arrested both the accused, they revealed that they are belonging to the "Dindar Anjuman Chennabasaweshwara Siddiq" a banned organization. They also disclosed that they had visited this city to propagate the principles of the said association. Therefore, he made thorough search of them and seized the above articles from their possession. When PW1 had taken the accused to the Police Station with the Complainant, there was no occasion for Investigating Officer to once again come to the Masjid and arrest the accused person to draw the mahazar. Therefore, the evidence of PW8 regarding the above aspect is not cogent and trustworthy of acceptance. He has deposed about further investigational formalities like seizing of other incriminating articles through mahazar at Ex.P19. In the above para, I have explained that the independent witnesses to the mahazar have not supported the case of prosecution and the evidence of PW7 25 SC 513/2017 and 8 are not corroborating with each other. PW7 has stated that he was present on the spot, but his signature was not taken either on the mahazar or on the sealed cover wherein those articles were kept. Therefore, the evidence of PW8 which pertains to the investigational aspect of the case is not sufficient to come to a conclusion that both the accused were members of the aforesaid association and they were collecting donations from the public in the name of banned association and passing receipts. Further, the above evidence is not sufficient to hold that accused were distributing the pamphlets containing the messages of unlawful association.
29. PW9 M.Manjunath is the subsequent Investigating Officer who has produced Ex.P30 Gazette Notification and obtained sanction as per Ex.P32 for prosecution and filed the Charge sheet. Thus his evidence pertains to the above said formalities. In the cross-examination, PW9 has denied a suggestion as false that as per the provisions of U.A.P Act the sanctioning authority of the case on hand did not have proper authority to accord the sanction. He admits that the sanctioning authority is not made as a Charge sheet witness. In 26 SC 513/2017 this context little reference to the aspect of sanction is very much required in the opinion of the Court.
30. As noted above, the Charge sheet has been filed against the accused for the offences punishable under Section 3 and 10 of U.A.P Act r/w Section 120B of IPC. A perusal of the aforesaid provisions, it becomes very clear that they fall under Chapter III of the Act. A perusal of Section 45 of the above Act, more particularly Section 45(1)(i), it becomes very clear that no Court shall take cognizance of any offence under Chapter III without the previous sanction of the Central Government or any officer authorized by the Central Government in this behalf. Therefore, it is clear that the Central Government or anybody authorized by it can accord the sanction to prosecute the accused in respect of offence falling under III of the Act. A perusal of Ex.P32 Sanction Order, it becomes very clear that the sanction was accorded by the State Government through its Principal Secretary (PCAS) or Internal Administration (Crimes). He is not a Central Government Official. Therefore in my opinion, the very sanction order appears to be against the aforesaid provision of U.A.P Act. Be 27 SC 513/2017 that as it may, even if it is held that the sanction is proper, however, the prosecution has failed to prove the allegations made against the accused beyond all reasonable doubt.
31. The Counsel for accused has referred to Ex.D3 the copy of remand application and its portion marked at Ex.D3(a) to contain that accused have been falsely implicated in the present case on false allegations. A perusal of Ex.D3(a) it becomes very clear that the prosecuting agency had failed to collect any material evidence regarding collection of donations by the accused and passing of receipts in Bengaluru and other places like Mysore etc. This supports the arguments of the learned Advocate for accused. This fact is admitted by PW8 in his Cross-examination. Therefore, without any sufficient proof, accused have been implicated in the present case.
32. In this context, it is very relevant to mention the observations made by the Hon'ble High Court of Bombay in a decision reported in 2007 Cr.L.J 1386 (Javed @ Java Ahmed Mohammed Akbar Bhatt and others Vs. State of 28 SC 513/2017 Maharashtra). In the similar circumstances, Hon'be High Court of Bombay has observed as follows:
"The prosecution has failed to establish that the literature obtained from the room was in any manner inflammatory or provocative or that it incited the readers to unite in waging war against the Government of India. The prosecution has not cared to bring on record the translations of the Urdu periodicals and the offending literature. A perusal of the impugned Judgment does not disclose that such translations were made available to the learned trial Judge. However, the learned trial Judge has elaborately dealt with the criticism against India published in these Urdu periodicals. W are not aware as to how the learned Judge came to the conclusion that the Urdu periodicals criticized the premise that India was an ancient culture".
As mentioned above in the case on hand also prosecution has failed to produce the translated copy of the Urdu documents alleged to have been seized from the possession of the accused. Therefore, I am unable to come to a conclusion that those documents pertains to the aforesaid unlawful association and they contain ideology of the said association which is against the sovereignty of India.
33. Thus, from the above discussion, it becomes crystal clear that the materials placed on record by the prosecution is not sufficient to come to a conclusion that the accused were the 29 SC 513/2017 members of the aforesaid unlawful association and being the members, they collected donations from the public by passing receipts for the improvement of the same. Hence, the prosecution has miserably failed to establish its case beyond reasonable doubt with cogent and convincing evidence.
34. The Counsel for accused would submit that even if it is presumed that the accused were the members of the aforesaid association there is no materials to indicate that they resorted to any violence or any unlawful activities. Therefore, mere becoming the member of the said association is not an offence. To support his argument, he referred to the decision of the Hon'ble Apex Court in the case of Indra Das Vs State of Assam (2011) 3 Supreme Court Cases 380 . In the said case in the context of ULFA, which is a banned association the Apex Court has held that mere membership of banned organization will not make a person criminal unless he resorts or incites people to violence or creates public disorder by violence or incitement to violence. In my opinion, the above principle has application to some extent to the case on hand. However, as mentioned above the prosecution at the out set has failed to 30 SC 513/2017 prove that the accused were the members of the unlawful association referred to above.
35. The Counsel has also referred to another decision of the Hon'ble Apex Court in the case of Seeni Nainar Mohammed Vs State by Deputy Superintendent of Police (2017) Supreme Court 3035. The ratio laid down in the said decision pertains to the facts involved therein and it can be distinguishable on facts.
36. In 2016(4) KCCR 3227 (DB) (Abdul Raheman @ Shami Ahmed Sha @ Babu Vs State of Karnataka through Station Bazar Police Station, Gulbarga is also referred to contend that the voluntary statement alleged to have been given by accused has no any evedentary value. Ofcourse, I have no any quarrel with principle of law laid down by the Hon'ble High Court in the above decision regarding relevancy of voluntary statement of accused as per Section 25 and 26 of Evidence Act, but in the instant case only the portion of statement which led to disclosure is marked as Ex.P24 and 25. But, ofcourse, prosecution has failed to prove the seizure of the above articles. 31
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37. Another decision of Hon'ble Apex Court reported in AIR 2011 Supreme Court 72 Varun Chaudhary Vs. State of Rajastan is referred. That is in respect of recovery of articles pursuant to the disclosure statement made by accused, but in the instant case, there is no cogent evidence regarding seizure of articles pursuant to the disclosure statement alleged to have been made by accused. Hence, the accused can not claim any benefit from the said decision.
38. ( 2008) 5 Supreme Court Cases 89 (Pulin Das Alias Panna Koch Vs. State of Assam is referred to by the Counsel for the accused regarding sanction. In the above para, I have discussed in detail regarding aspect of sanction. Hence, there is no need to reiterate the law laid down by the Hon'ble Apex Court.
39. The Counsel has referred to Judgment of the Apex Court in the case of Mohan Lal Vs State of Punjab (LAWS (SC) 2018 (833) to contend that non examination of CW7 Smt. Fathima Baigum is fatal tot he case of prosecution. In the above paras, I have mentioned this aspect holding that prosecution 32 SC 513/2017 has not offered any reasonable explanation for non examination of this witness who is the owner of the house where accused were staying with incriminating articles. Her signature is also not obtained on the seizure mahazar for the reasons best known to the prosecution. Therefore, same is fatal to its case. Hence, the said decision is also not much helpful to the accused.
40. The learned Public Prosecutor has also referred to the decision of the Hon'ble Apex Court in the case of Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid Vs State of Maharashtra (2012) 3 Supreme Court Cases (Cri) 481 and also the decision in the case of Sanjay Dutt Vs. State of Maharashtra through C.B.I 2013 (2) Crimes 21 Supreme Court. However, the law laid down in those decision would not help the prosecution as it has failed to bring cogent evidence on record indicating commission of alleged offence by the accused.
41. From the above discussion, it is clear that the prosecution has failed to bring home the guilt of the accused beyond shadow of doubt. Therefore, the accused are entitled for 33 SC 513/2017 benefit of doubt and hence same is accorded to them. With these observations, I answer points No. 1 to 3 in the Negative.
42. POINT NO.4: In view of the reasons mentioned in the preceding paras, I proceed to pass the following:
ORDER Accused Nos. 1 and 2 are hereby acquitted under Section 235(1) of Cr.P.C for the offences punishable under Sections 10 and 13 of U.A.P.Act, 1967 and under Section 120B of I.P.C.
Their bail bonds and surety bonds stand canceled.
MOs 1 to 4 shall be forfeited to Government after expiry of Appeal period. [Dictated to the Stenographer, transcribed by him, then corrected and pronounced by me in the open Court on this the 13th day of October, 2020.] (VENKATESH R. HULGI) LI Adnal City Civil & Sessions Judge C/c of XLIX Additional City Civil & Sessions Judge and Judge, NIA Special Court, Bengaluru.34
SC 513/2017 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION PW1 Tanveer Ahmed Shariff 26.2.2018 PW2 Mansoor Ahmed Khan 04.04.2018 PW3 Mohammed Tafim 04.04.2018 PW4 Riyay Ahmed Khan 04.04.2018 PW5 Abdul Bashid 05.04.2018 PW6 Ajmar Ulla 06.04.2018 PW7 Shantha Kumar P C 06.04.2018 PW8 S.R. Manjunath 22.06.2018 PW9 M.Manjunath 27.08.2018 LIST OF EXHIBITS MARKED BY PROSECUTION Ex.P1 Complaint 26.2.2018 Ex.P2 Mahazar "
Ex.P3 Urdu Pamphlet/handbill " Ex.P4 Pocket Note books (3) " Ex.P5 Hand Note books (2) " Ex.P6 Receipt book " Ex.P7 Election ID card & its copy (A1) 4.4.2018 Ex.P8 RC card (RTO) & its copy (A1) " Ex.P9 House hold card & its copy (A1) " Ex.P10 Passport photo (A1) " Ex.P11 Visiting cards (5) " Ex.P12 Small Urdu book -Minar 2011 " 35 SC 513/2017 Ex.P13 KSRTC Bus ticket " Ex.P14 Urdu Pamphlet, Books (7) " Ex.P15 Pamphlets Books (5) " Ex.P16 Receipt book (No.79) " Ex.P17 Poster pamphlet " Ex.P18 Railway Ticket (4) & Bus ticket(1) " Ex.P19 Mahazar dt: 8.4.2011 " Ex.P20 Statement u/s 161 of Cr.P.C of PW3 " Ex.P21 Statement u/s 161 of Cr.P.C of PW4 " Ex.P22 F.I.R. 22.6.2018 Ex.P23 Receipt " Ex.P24 Voluntary Statement of A1 " Ex.P25 Voluntary Statement of A2 " Ex.P26 Urdu Receipt books (2) " Ex.P27 Book-in English language " Ex.P28 Book in English language " Ex.P29 Urdu books (3) " Ex.P30 Gazette dated 28.3.2008 27.8.2018 Ex.P31 Letter by PSI to C.O.P " Ex.P32 Sanction Order " LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION MO 1 Nokia Mobile PF No.40/2011 26.2.2018 MO 2 Samsung Mobile PF No.41/2011 " MO 3 Cash amount of Rs.9,700/- 6.4.2018 MO 4 Cash amount of Rs.2,160/- " 36 SC 513/2017 LIST OF WITNESS EXAMINED FOR ACCUSED - NIL - LIST OF EXHIBITS MARKED FOR ACCUSED Ex.D1 PF No.40/2011 26.7.2018 Ex.D2 PF No.41/2011 " Ex.D3 Remand application dt 11.4.2011 " Ex.D3(a) Page 3 & Para 3 in Ex.D3 "
LIST OF MATERIAL OBJECTS MARKED FOR ACCUSED
- NIL -
(VENKATESH R. HULGI) LI A C C & S J Judge C/c of XLIX A C C & S Judge & Judge, NIA Spl Court, Bengaluru