Karnataka High Court
State Of Karnataka vs Nasir Liyakatali Patel on 8 February, 2017
Bench: Anand Byrareddy, K.Somashekar
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 8TH DAY OF FEBRUARY 2017
PRESENT
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
AND
THE HON'BLE MR. JUSTICE K.SOMASHEKAR
CRIMINAL APPEAL NO.2662/2012 (A)
Between
State of Karnataka,
Through APMC Police Station,
Belgaum.
... Appellant
(By Shri V.M.Banakar, Additional State Public Prosecutor)
And
1. Nasir Liyakatali Patel
Age: 22 Years, Occ: Student,
R/o Azam Nagar, Belgaum
2. Izazkhan S/o Gulam Hussain Khan,
Age: 27 Years, Occ: Business,
R/o Azam Nagar,
Bauxite Road, Belgaum
3. Imtiaz Abdulizaz Dalayat,
Age: 29 Years, Occ:Pan Shop Owner
R/o EWS 297, Ashok Nagar, Belgaum
:2:
4. Nadeem Abdul Nayeem Sayyad,
Age: 24 Years, Occ: BBA Student,
R/o Plot No. 2283, Sector No.7,
Mahantesh Nagar, Belgaum
5. Tanveer Abdul Sattar Mull,
Age: 31 Years, Occ: Real Estate Agent,
R/o Khusro Nagar, Belgaum
6. Iqbalahamed Shoukatali Jakati
Age: 38 Years, Occ: Slesman in
Manickbag Auto, R/o Azad Nagar,
Belgaum
7. Dr Munroj Uj-Jama S/o Kutubuddin Nalband,
Age: 33 Years, Occ: Doctor,
R/o EWS 92, Ashok Nagar, Belgaum
8. Mohammad Asif @ Shiraj
S/o Mohammad Khadar,
Age: 24 Years, Occ: Student,
R/o Hubli, Now At Raichur
9. Liyaqat Ali S/o Abdulgani Sayyed,
Age: 32 Years, Occ: Business,
R/o Khusro Nagar, Belgaum
10. Nasir S/o Abdulmajid Rangrez
Age: 27 Years, Occ: Auto Driver,
R/o 4th Cross, Azad Nagar, Belgaum
11. Imran Jafarsab Rajgoli,
R/o. Khusroo Nagar, Belgaum.
12. Abubasir Mupti S/o. Abubakar,
R/o. Binapara Nizamabad,
Taluk: Azamgad, Uttara Pradesh.
:3:
13. Hafizhussain @ Adnan Tajoddin Mulla,
R/o. Bijapur.
14. Navid S/o Munirsab @ Munirahmed Khaji,
Age: 29 Years, Occ: Business,
R/o: Belgaum
... Respondents
(By Shriyuths Ahamed Ali Rehaman Shah, Advocate for R1,
Z.M.Hattaraki and V.V.Badiger, Advocates for
R2, R5, R6, R9, R10 and R14,
A.B.Patil, Prime Law Associates Advocate for
R2, R3, R5, R6, R9, R10, R14,
Vijay S. Chiniwar and
I.D.Jalgar and M.S.Halli, Advocates for R3,
A.G.Mulawadmath, Advocate for R4,
K.M.Shiralli, Advocate for R7,
I.D.Jalgar and R.M.Javed, Advocate for R8,
R11 to R13 are deleted)
This Criminal Appeal is filed under Sections 378(1) and
(3) of the Code of Criminal Procedure seeking to set aside the
judgment and order of acquittal passed by the Principal
Sessions Judge dated 08.11.2011 in Sessions Case
No.271/2008.
This Criminal Appeal coming on for hearing this day,
Anand Byrareddy J., delivered the following:
JUDGMENT
Heard the learned Additional State Public Prosecutor and the learned counsel for the respondents/accused. :4:
2. The facts of the case are as follows:
The Deputy Superintendent of Police, Khade Bazaar, Sub Division, Belgaum, is said to have filed the charge sheet before the Judicial Magistrate First Class IV Court, Belgaum on 21.08.2008 numbered as C.C. No.1204/2008 alleging that on 27.05.2008, he had received credible information, on the basis of which a search was conducted on the house of accused No.1/Nasir Liyakatali Patel situated at 8th cross, Azam Nagar, Bleguam, in the presence of panch witnesses and a hard disc of a computer was said to have been recovered and it was found that the hard disc contained folders which carried i) speeches by Osama-Bin-Laden exhorting Muslims to fight against injustice meted out to Muslims all over the world; ii) violent activities of Talibanin Afghanistan for the cause of Islam; iii) a Muslim youth giving interview justifying the serial bomb blasts that occurred in Mumbai and that it was done to fight against the exploitation of Muslims by non-believers; iv) demolition of Babri Masjid and communal riots that took place in Godhra, Gujarat State; v) preparation and use of RDX explosives neatly :5: explained in one of the video folders; vi) method of preparation and use of biological and chemical war fare by using poisonous substances; vii) Osama-Bin-Laden found teaching the use of rocket launchers against the non-believers as a fight for JEHAD.
3. It was alleged that accused No.1, who was a student of B.Sc. at Belgaum, had come into contact with accused Nos.2 to 10 on account of socio-religious proximity and this was seen when the email box of accused No.10/Liyakatali was opened. It said to have contained messages sent by accused No.10 to Muslims not to sing songs such as, Om Shanti Om, Hare Rama Hare Krishna and to follow the Islamic tenets strictly and that there was meeting of minds of accused on JEHADI literature (both printed and electronic media); and with the assistance of members of the Students Islamic Movement of India (hereinafter referred to as 'SIMI', for brevity), they were able to disseminate the information referred to above to cause communal hatred and assertions prejudicial to national integration; and in furtherance of their :6: common intention, accused No.4/Imtiyaz, accused No.5/Nadeem and accused No.8/Dr.Munroj who are said to have collected chemicals like glycerol, nitric acid etc., to prepare explosive articles like time bombs and other bombs and they even secured a cylinder prepared according to their specifications at Momin Galli, Belgaum to use the same for making gas bombs. That accused No.8 handed over a hard disc to accused No.1 and the contents of the said hard disc when viewed in the laptop of accused No.1, it was found to contain most barbaric scenes of demolition of Babri Masjid, the Godra Massacre, footage of speeches of Hindu leaders, atrocities on Muslims, Gujarat communal riots etc., and this was in order to incite the feelings of other castes and to provoke them to wreak vengeance on Hindus and thereby the accused committed offences punishable under Sections 13, 15, 18 of Unlawful Activities Prevention Act, 1967 (Amendment Ordinance 2004) and also Sections 153-A, 153-B, 124-A, 511 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC', for brevity) and Sections 4 and 5 of the Explosives Substances Act, 1908. :7:
4. It is in this background that accused No.1 was said to have arrested and produced before the Magistrate on 27.05.2008 and he was remanded to Police custody. Accused Nos.5 and 4 were produced on 02.06.2008 and were also remanded to judicial custody. Accused No.1 was remanded to judicial custody on 18.06.2008. Similarly, the other accused were remanded to judicial custody on various dates.
5. On 21.08.2008, the Investigating Officer filed the charge sheet against accused Nos.1, 4, 5, 6 and 10 for offences punishable under aforesaid provisions and it was mentioned that investigation as against accused Nos.2, 3, 7, 8 and 9 was not complete and that after collecting evidence, additional charge sheet would be filed against them. The Magistrate had taken cognizance of the offences against accused Nos.1, 4, 5, 6 and 10 on 21.08.2008. Additional charge sheet was filed on 01.10.2008 against accused Nos.2, 3, 7, 8, 9, 11, 12, 13 and 15 for offences punishable as aforesaid and the Magistrate had taken cognizance in respect of the above offences against the said accused. The case against the absconding accused namely :8: accused Nos.3, 12, 13 and 14 were split up by order dated 24.11.2008. The case against the remaining accused was committed to the Sessions Court under Section 209 of the Code of Criminal Procedure. Accused Nos.1, 2, 4 to 11 and 15 were ordered to be produced before the Sessions Court. They were accordingly produced and the accused having treated not guilty and the case went on for trial.
6. The prosecution had examined 43 witnesses, out of 47 witnesses cited in the charge sheet, including two additional witnesses and 145 documents were exhibited, apart from 101 material objects. The trial concluded on 28.05.2011. The defence did not choose to tender any evidence. The Court below had framed the following points for consideration:
"(1) Has the prosecution proved beyond all reasonable doubt that all or any of the accused are members of Students Islamic Movement of India ('SIMI' for short) which is a banned organisation?
(2) Has the prosecution further proved that in between October 2007 and 27.05.2008 the :9: accused persons entered into a criminal conspiracy with the intention of bringing into hatredness between Muslim community an other communities and / or causing disaffection towards national integrity and threatened unity, security and sovereignty of the country?
(3) Has the prosecution further proved that on
or about 27.05.2008 the accused in
furtherance of their conspiracy procured
explosive materials like glycerol, nitric acid and also gas cylinder and a clock for making time bombs in order to explode them in and around Belgaum?
(4) Have the accused committed the alleged
offences?"
The Trial Court answered the same in the negative and acquitted the accused, it is that which is under challenge in the present appeal.
7. The learned Additional State Public Prosecutor would vehemently contend that the grounds raised in the appeal are laconic. However, the learned State Public Prosecutor : 10 : would seek to take this Court through the record in independently urging the contention that the Court below has failed to appreciate the material evidence in the right perspective and has tangentially addressed the case with reference to preliminary issues such as, whether or not, the accused were proved to be the members of any banned association and whether there was valid sanction to prosecute the accused and has further similarly held that the evidence produced was not in accordance with law and has therefore, enabled the accused to circumvent the law when the material produced on record is of such a serious nature which has not been addressed. Further, that the evidence of the Investigating Officer is itself sufficient to establish the recovery of such incriminating material which places the security of the nation itself at stake. The same has been trashed on specious grounds. In the result, seriously incriminating material and the direct involvement of the accused has been completely over looked and has thus enabled the accused to carry on their unlawful activities which will jeopardize the security and peace of the : 11 : nation and hence canvasses that the judgment of the Court below be set aside and the accused be appropriately punished.
8. It is noticed that of the four points for consideration framed by the Court below, the points considered and accepted by the Court, as to whether there was valid sanction in prosecuting the accused is not one of them. However, insofar as the first point for consideration is concerned, the Court below has referred to the expression "unlawful association", as defined under Section 2(p) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as 'UA Act' for brevity) which reads as follows:
"2(p) "unlawful association" means any association,-
(i) which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity or of which the members undertake such activity; or
(ii) which has for its object any activity which is punishable under section 153A or section 153B of the Indian : 12 : Penal Code (45 of 1860), or which encourages or aids persons to undertake any such activity, or of which the members undertake any such activity:"
9. The Trial Court has also noticed the objects of the legislation which was to effectively prevent unlawful activities of individuals and associations. And that Section 3 of the UA Act empowers the Central Government to declare any association as an unlawful association within the meaning of Section 2(f) of the UA Act by issuing a notification published in the Official Gazette as well as in the newspapers. And a notification dated 07.02.2008 published in the Gazette of India was to the effect that SIMI was declared as an unlawful association by the Central Government. A letter was produced, in the course of trial, dated 22.07.2009, addressed to the Chief Secretary of Karnataka Government by the Joint Secretary, Ministry of Home Affairs, Government of India, New Delhi, wherein it was indicated that the Central Government had constituted a Tribunal for adjudicating whether or not there was : 13 : sufficient cause for the Central Government, in declaring SIMI as an unlawful association under the provisions of the UA Act and that the Tribunal vide its order dated 05.08.2008, had refused to confirm the ban imposed on SIMI by the Central Government. It was further mentioned that a Special Leave Petition was filed by the Central Government before the Apex Court challenging the order of the Tribunal and the Supreme Court had stayed the order of the Tribunal until further orders and the matter was referred to a larger Bench of the Supreme Court. Therefore, it was contended that the ban on SIMI continued until further orders of the Supreme Court or until 07.02.2010. The prosecution had produced a notification dated 05.02.2010 issued by the Central Government regarding the ban imposed on SIMI. This notification had come into effect from the date of its publication in the Gazette of India. Therefore, according to Section 6(1) of the UA Act, a notification which was issued under Section 3 of the UA Act, if the declaration made therein is confirmed by the Tribunal by an order made under Section 4 of the UA Act, such order shall remain in force : 14 : for a period of two years from the date on which the notification becomes effective. Therefore, the notification dated 05.02.2010 would indicate that the Central Government had declared SIMI as an unlawful association. The said notification dated 05.02.2010 came to be issued in view of the Tribunal's order passed in August 2008 holding that the notification dated 07.02.2008 did not specify the requirements of Section 3 of the UA Act and in view of the pendency of Special Leave Petition filed by the Central Government before the Apex Court in Special Leave Petition (Civil) No.19845/2008 and the interim order of stay granted by the Apex Court on 06.08.2008 as regards the impugned order of the Tribunal and also in view of the fact that the duration of ban of two years was to expire on 06.02.2010 in terms of 6 of the UA Act. Since there was no material placed by the prosecution to show that any of the accused person was a member of the said banned association namely SIMI and in view of the admission by P.W.36/Deputy Superintendent of Police, Khade Bazar, Sub Division, Belgaum in his cross-examination to the effect that except the voluntary : 15 : statement of accused Nos.6, 7 and 15, there was no material to show that they were members of the banned organization.
10. It was further held that in view of Section 25 of the Evidence Act, 1872, statements of the accused made to a Police Officer in the course of investigation would be inadmissible in evidence. The Court below has come to a conclusion that the said voluntary statements should not be relied upon to establish that the accused were members of SIMI. It is in this fashion that the point No.1 has been answered in the negative and in view of the first requirement namely that the accused allegedly being members of SIMI not having been established, apparently, the case against the accused was severely diluted.
11. Then proceeding to the next point which is not framed as point for consideration, the Trial Court has gone on to notice that under Chapter II of the UA Act, Sections 10 to 14 are covered, whereas under Chapter IV of the said Act, Sections 15 to 23 are covered and in terms of Section 45 of the said Act, for prosecution of offences covered under Chapter III, the : 16 : previous sanction of the Central Government or any officer authorised by the Central Government for the purpose was required. Whereas in respect of offences which are covered under Chapter IV and VI, the State Government may issue the sanction order, if the offence is committed against the Government. It has been noticed that offences alleged are under Sections 15 and 18 of the UA Act and they are covered under Chapter IV of the UA Act, but Section 13 is covered under Chapter III. Therefore, the prosecution did not demonstrate that with regard to prosecution of cases for offence under Section 13, the previous sanction of the Central Government was obtained. In the absence of the sanction order issued by the Central Government, as contemplated under Section 45(i) of the UA Act, there cannot be any prosecution under Section 13 of the said Act as the said Section falls under Chapter III of the Act and Section 45 clearly bars the Court from taking cognizance without sanction of the Central Government.
12. There was an attempt made by the prosecution to draw attention to the Unlawful Activities (Prevention) : 17 : (Recommendation and Sanction of Prosecution) (Amendment) Rules 2009 framed by the Central Government which were to the effect that the sanction could be issued either by the Central Government or the State Government. However, the Trial Court has noticed that the said amendment has been brought into force on 31.03.2009 and was prospective in nature. The charge sheet in the case on hand was filed in the year 2008. Therefore, the amendment could not be pressed into service to hold that either the State or the Central Government could issue a sanction to prosecute the accused for the offences. The Court below has also taken into account the Central Government notification dated 21.06.2007 issued in exercise of power under Section 45(i) of the UA Act, whereunder, the Secretaries of the State Government, the Union Territory's Administrations incharge of the Home Department had also been empowered to grant sanction in respect of offences under Chapter III of the UA Act triable by a Court in their respective States and Union Territories. According to the notification, the Secretary for Karnataka Sate Government incharge of the Home Department : 18 : in the Central Government is the authority to issue the sanction in respect of offences covered under Chapter III of the UA Act. But however, no such sanction was shown to have been obtained by the prosecution. Therefore, the Court has concluded that though the prosecution had demonstrated that SIMI was a banned organisation, but it has failed to prove that the accused were members of the said organisation at the relevant point of time. Therefore, point No.1 is answered in the negative, while also considering whether there was a valid sanction for prosecution.
13. Insofar as point Nos.2 and 3 are concerned, the Court below has addressed the evidence that was produced by the prosecution to substantiate the charges and with particular reference to M.Os.28 and 29 which were two cell phones and possibly produced as highly incriminating material and it is noticed by the Trial Court that these material objects had been seized by the prosecution in the course of investigation and P.W.1, a Police Inspector had tendered evidence and had spoken to the said cell phones which were of Nokia make and : 19 : he had produced them before the Deputy Superintendent with the report Ex.P-4, dated 19.07.2008. According to the said report, P.Ws.1 and 8 had visited Mumbai in search of accused No.6/Tanveer Mulla and when they showed the photograph of Tanveer Mulla to the owner of the Karnataka Rest House and the workers therein, they had not been able to identify the said person. Thereafter, they had visited Kazi Syed Street, Mumbai and there they secured the above mobiles from Abdulla Mubarak, who was running a mobile phone repair shop and he had informed P.Ws.1 and 38 that it had been given to him for repairs by accused No.10/Liyakatali Abdulgani Sayyed. Though the identity of the said mobiles were mentioned, there was no further document to show that the said cell phones belonged to accused No.10 and he had given them to the person mentioned in Ex.P-4 for repairs. Similarly, P.W.38 had tendered evidence to endorse the evidence of P.W.1 about the visit to Mumbai and reiterated the evidence of P.W.1, as regards the said material objects. But the Court has not been impressed by the said evidence, as there was no proof to the : 20 : effect that cell phones belonged to accused No.10 nor was there any evidence to show that accused No.10 visited Mumbai at any time prior to May 2008 and had handed over the cell phones to Abdulla Mubarak.
14. Further the Trial Court has noticed that accused No.1 had led the Police and panchas, including the Investigating Officer to a house in Sindholi Village on 31.05.2008. And he is said to have declared that he and other accused had viewed the hard disc/M.O.5 and that mahazar was also drawn in this connection, duly attested by P.Ws.7 and 8. But unfortunately both P.Ws.7 and 8 had turned hostile and had not supported the case of the prosecution.
15. P.W.9, one Fatima, had stated that her husband Sultansab Mulla had died about six years ago and there was a house belonging to her husband which was constructed about seven years ago and she and her husband stayed there for about 3½ years and after the death of her son Rajesab, she had left Sindholi and shifted to Shivaji Nagar, Belgaum and she had let : 21 : out the house to one Liyaz on a rent of Rs.500/-. She had also stated that she did not know accused No.10. She has denied that she had seen accused Nos.1, 4, 5, 7 and 15 and she also had denied that she had asked accused No.1 to bring his family members and reside in the said house or else to vacate the house. Therefore, her evidence also did not advance the case of the prosecution.
16. It is further noticed by the Court below that the evidence of P.Ws.10, 11, 12 and 14 did not support the case of the prosecution. The Court has then referred to the evidence of other witnesses to indicate that none of them had supported the case of the prosecution, namely, P.Ws.20, 22, 23, 27 and 28. Thereafter, insofar as the evidence of the Investigating Officer which is the most material evidence according to the learned Additional State Public Prosecutor, the Court below has analyzed the evidence of the said Investigating Officer about the recovery of M.O.5, the hard disc from the possession of accused No.1 and about the material which it contained and the manner in which it was recovered and the other material apart : 22 : from M.O.5 which were also collected during the search, but the Trial Court has noticed that in his evidence it is not indicated that a forensic duplicate copy of the suspect storage media, or bit for bit duplication of the original media, was prepared by taking the help of a forensic expert.
17. It is further pointed out by the Trial Court that the forensic duplicate is a file that contains every bit of information from the source disc. The bit stream system copy then run through a cryptographic hashing algorithm to assure that it was an unaltered copy. The source from which the information contained in many folders found in M.O.5 had been downloaded was not known. The Court has then noticed that the identity of the person who has downloaded the said contents of M.O.5 from the original source is also not known. The same has not been explained for, investigated by the Investigating Officer.
18. Therefore, the evidence tendered by P.Ws.1, 3, 4 and 5 may at most, show that the hard disc/M.O.5 was found : 23 : and seized in the house of accused No.1 on 27.05.2008, but since no proper steps were taken to ensure that the said folders which were found during raid operations were copied by using forensic techniques so as to rule out the possibility of any tampering.
19. In the absence of evidence to show that the present accused persons had viewed the contents of M.O.5 on a screen or a laptop and thereby they entered into a conspiracy, the mere seizure of the hard disc could not lead to an inference with regard to the conspiracy alleged against the accused.
20. It is this categorical finding on which the entire evidence of P.W.1 as to the seizure of incriminating material has been negated. The Trial Court having come to such a conclusion namely that a forensic duplicate copy of the suspect storage media was not prepared by taking the help of a forensic expert.
21. It is also to be noticed that Section 65B of the Evidence Act, 1872 has not been complied with and further that : 24 : there is no forensic expert examined in the course of the trial to substantiate the allegation that the hard disc seized from the possession of the accused No.1 was indeed the very hard disc which contained the incriminating material and that there was no possibility of the same being tampered with or meddled with being established is a crucial aspect which had been overlooked by the prosecution and has certainly proved fatal to its case into being able to rely upon the material which is grossly incriminating material if it had been established in accordance with law. Therefore, point Nos.2 and 3 having been answered in the negative cannot be faulted.
22. Insofar as accused No.4 is concerned, the evidence of P.W.32, who had investigated the case by virtue of a memo, Ex.P-47 issued to him by the Superintendent of Police and the enquiries made by him and the statements recorded by him including the accused No.1 and on the basis of information provided by accused No.1, the said witness having traced the place from where he purchased explosive materials and on the basis of further information provided by accused No.1, other : 25 : accused having been taken into custody etc. The Court has noticed that the said statements recorded of the several accused and witnesses had not been shown to be recorded in the language known to or spoken by the accused and further the attesting witnesses to the said statements had not supported the case of the prosecution. Therefore, the Court has held it would be dangerous to accept such statements as supporting the case of the prosecution and it is also frowned upon by the Trial Court that P.W.32 has not chosen to record the statement of accused by himself and they are seen to have been recorded by the Station Writer and the exact words used by the accused were not reflected in the so called statement. It is on this note that the Trial Court has held that the proof regarding conspiracy and the steps taken for execution of their plan not having been established against the accused, the mere sanction by the State Government for prosecution of the accused for offences punishable under Sections 153A, 153B of IPC cannot be sustained. Hence, has categorically held that the prosecution has : 26 : failed to prove the guilt of the accused beyond all reasonable doubt and had acquitted them.
We find no reason to interfere with the judgment for the above reasons. Accordingly, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Rsh