Madras High Court
Seema Basher Alias vs The State Of Tamilnadu on 5 July, 2010
Author: R.Mala
Bench: R.Mala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/07/2010 CORAM THE HONOURABLE JUSTICE MS.JUSTICE R.MALA Crl.O.P.(MD).No.5611 of 2010 and M.P.(MD).Nos.2 & 3 of 2010 Seema Basher alias Basheer Ahamad ... Petitioner Vs The State of Tamilnadu represented by the Deputy Superintendent of Police, 'Q' Branch C.I.D., Trichy. ... Respondent Criminal Original Petition filed under Section 482 of Cr.P.C., praying to call for the records connected with C.C.No.41 of 2009 on the file of the Special Court for Consumer and NDPS cases, Pudukkottai and quash the same as far as the petitioner is concerned. !For Petitioner ... M/s.P.Subbaraj ^For Respondent ... Mr.P.Kumaresan Public Prosecutor :ORDER
The petitioner approaches this Court with a prayer to call for the records connected with C.C.No.41 of 2009 on the file of the Special Court for Consumer and NDPS cases, Pudukkottai and quash the same as far as this petitioner is concerned.
2. The Petitioner who is facing a prosecution for the offences under sections 120(B) IPC, 10 (a) (iv) of Unlawful Activities (Prevention) Act 1967, Amended Act 2004 and Section 14 of Foreigners Act 1946, Section 5 (a) of Explosive Substances Act 1908, Amended Act 54 of 2001 and Section 6 of the Explosive Substances Act, 1908 has filed this petition under section 482 of the Code of Criminal Procedure, 1973 to Quash the proceedings.
3. The case of the Prosecution as found in the final report and relevant as far as the case of the petitioner is as follows:-
(a) In exercise of the powers conferred by sub-section (1) of section 3 of Unlawful Activities (Prevention) Act, 1967 (37 of 1967), the Central Government has issued Notification No.710 (E) dated 14th May 2006, whereby the Liberation Tigers of Tamil Eelam (for short 'LTTE') has been declared as an unlawful association. In S.O.710 (E) it is stated that the Liberation Tigers of Tamil Eelam (hereinafter referred to as the LTTE), is an association actually based in Srilanka but having sympathizers, supporters and agents on the Indian soil and the same has been published in Tamil Nadu Government Gazette vide Public Department (SC) Letter No. SR III/1370-30/2006, Public (SC), 6th January 2007.
(b) Seven accused viz. A1 Arulseelan, A2 Ragulan @ Antony, A3 Pradheepan @ Thillai @ Dheepan, A4 Bhakeerathan @ Eelavan, A7 Kannan @ Mahendran, A18 LTTE Satish (absconding) and A20 Mohamed Imtiass (absconding) are the foreign nationals hailing from Srilanka and very particularly A1 Arulseelan, A2 Ragulam @ Antony, A3 Pradheepan, A4 Bhakeerathan and A18 LTTE Sathish (absconding) are the members of LTTE which is a banned outfit in India as per the notification discussed in para 1 and all the accused said above have colluded with each other and other accused (Indians) viz. A5 Idayathullah, A6 Raju, A8 Balu @ Muniasamy, A9 Suku @ Sukumar. A10 Seema Basheer @ Basheer Ahamed, A11 Siva @ Sivakumar, A12 Ramesh @ Rameshkumar, A13 Ramachandran, A14 Sukumar, A15 Jayaraman and A19 Nagendran (absconding) have hatched criminal conspiracy at Vilankattor, Madurai, Mandapam, Rameshwaram, Periyathoppu Seashore, Uppur Coast, Udumalpet, Perambalur, Trichy and Chennai on 06.03.07 and earlier to smuggle iron balls, aluminium bars, petrol, diesel and other contrabands to Srilanka for the very purpose of using them as projectiles in Improvised Explosive Devices besides in breech loading or muzzle loading short guns for LTTE, the banned association under Unlawful Activites Act and thereby all the accused have committed an offence under Section 120 (B) IPC r/w 10 (a) (iv), of Unlawful Activities (Prevention} Act 1967, Amended Act 2004 Section 14 of Foreigners Act 1946, Section 5 (a) of Explosive Substances Act 1908, Amended Act 54 of 2001 and 6 of Explosive Substances Act 1908.
(c) Having fully known that LTTE have been declared as an unlawful association by the Government of India, A5 Idayathullah and A10 Seema Basheer @ Basheer Ahamad have funded A18 LTTE Sathish and A2 Ragulan @ Antony for the purchase of iron balls and other materials for the purpose of smuggling them to LTTE at Sri Lank for making bombs, landmines etc.
(d) The accused A1 Arulseelan received Rs.10 lakhs from A2 Ragulan @ Antony, an LTTE cadre at Central Bus Stand, Trichy on 06.03.07 early morning with an ulterior design of handing over the same to A18 LTTE Satheesh through A15 Jeyaraman at Madurai for the very purpose of purchasing of iron balls, lathe machines and other contrabands and smuggling them to LTTE, Srilanka as if he had done on earlier occasions. The said amount of Rs.10 lakhs was infact recovered from Arulseelan on 06.03.07 in front of VVV Theatre, Ponnagar, Cantonment PS, Trichy City. A2 Ragulan @ Antony, who was hailing from LTTE outfit, after illicitly staying in India had received money from A5 Idayathullah directly and through A3 Pradheepan to the tune of several lakhs at various phases and of them, he had had handed over Rs.10 lakhs to A1 Arulseelan which was seized from A1 Arulseelan on 06.03.07 at Trichy. Mreover A2 Ragulan took over safe custody of 4.5 tonnes of iron balls from A18 LTTE Satheesh which was kept concealed in the premsies of A12 Rameshkumar at Perambalur which was later seized on 07.03.07 on his concession. A2 Ragulan was putting his best efforts to smuggled out the said 4.5 tonnes of iron baslls to Srilanka with the help of A6 Raju for which he along with A1 Arulseelan visited Rameswaram and handed over Rs.5000/-
to A6 Raju to smuggle the said iron balls to Srilanka through Rameswaram or nearby coasts. A3 Pradheepan had many times received money from A5 Idayathullah and handed them over to A2 Ragulan and made his best efforts to send the parcels of A2 Ragulan to Rameswaram in association with A4 Bhakeetharan through Parveen Travels, Chennai. A4 Bhaskeetharan by staying in the residence of A1 Arulseelan had helped A1 Arulseelan and A2 Ragulan for their smuggling activities. The accused A5 Idayathullah and A10 Seema Basheer @ Basheer Ahamad have received amount from LTTE through hawala transaction to the tune of several lakhs and they have contributed the same to A18 Sathish (absconding) and A2 Ragulan @ Antony, the agents of LTTE outfit in India since October 2006for the benefit of LTTE, the banned organization under Unlawful Activities (Prevention) Act 1967.
(e) The accused A1 Arulseelan, A2 Ragulan, A3 Pradheepan @ Thillai @ Dheepan, A4 Bhakeerathan @ Bhakeetharan @ Eelavan and A18 LTTE Sathish (absconding), the members of LTTE in association with other accused A5 Idayathullah, A6 Raju, A7 Kannan @ Mahendran, A8 Balu @ Muniyasamy, A9 Suku @ Sukumar, A10 Seema Basheer @ Basheer Ahamed, A11 Siva @ Sivakumar, A12 Ramesh @ Rameshkumar, A13 Ramachandran, A14 Sukumar, A15 Jayaraman, A16 Kreedan, A17 Balamurugan, A19 Nagendran (absconding), A20 Mohamed Imtiass (absconding) and A21 Murugapandi (Absconding) had knowingly aided by all means by putting their best efforts for the procurement of iron balls from New Delhi and purchase of minimum bars, iron platges and other contrabands from different places for the very purpose of using them as projectiles in Improvised Explosives Devices (IED) and in breech loading or muzzle loading short guns besides manufacturing of other explosive materials they design from time to time and thereby all the accused A1 to A21 and have committed an offence under Section 6 of Explosive Substances Act 1908.
4. The learned counsel appearing for the petitioner would cull out some portion of the charge sheet and submits that even though A5 Idayathullah and A10 Seema Basheer are standing in the same footing, there is no prima facie evidence to show that the present petitioner is having knowledge that the amount alleged to be handed over to Sathish and the same is used for purchase of contraband materials for banned organisation.
5. He would further submit that the A5 Idayathullah has filed a petition before this Court in Crl.O.P.(MD)) No.9022 of 2010, where the same is allowed and the prosecution against him was quashed. So, he placing reliance on the decision rendered by this Court in Crl.O.P.(MD) No.9022 of 2010, where A5 has filed a petition for quashing the charge sheet against him in C.C.No.41 of 2009 on the file of the Special Court for Consumer and NDPS cases, Pudukkottai and the same is quashed. He also relied on the decision in People's Union for Civil Liberties V. Union of India reported in (2004) 9 SCC 580 at page No.605, wherein, the Apex Court has held that for commission of offence under POTA Act, an intention is necessary. Hence, the learned counsel appearing for the petitioner prayed for allowing of this petition.
6. The learned Public Prosecutor who by placing heavy reliance on the Counter filed by the Investigation Officer, strenuously opposed the contentions of the Petitioner. He relied on the decisions in U.P.Pollution Control Board Vs. Bhupendra Kumar Modi (Dr.) and another reported in 2009(2) SCC 147 and in State of Himachal Pradesh Vs. Pirthi Chand.
7.Considering the rival submissions made by both side, now, this Court has to decide whether the petitioner is entitled for quashing the charge sheet filed against him in C.C.No.41 of 2009 on the file of the Special Court for Consumer and NDPS cases, Pudukkottai.
8. The petitioner is sought to be prosecuted for offences under sections 120 (B) IPC r/w 10 (a) (iv), of Unlawful Activities (Prevention} Act 1967, Amended Act 2004 Section 14 of Foreigners Act 1946, Section 5 (a) of Explosive Substances Act 1908, Amended Act 54 of 2001 and section 6 of Explosive Substances Act 1908.
9. As regard the statements of witness Karthik @Kannan And A.S. Shajahan , I am of the view even if they are taken as true in their entirety and without going in to the probative value of those statements, no offence as alleged by the Prosecution is made out as against the Petitioner.
10.The petitioner is now facing the prosecution for an offence under section 120 (b) of IPC r/w 10 (a) (iv) of the Unlawful Activities (Prevention} Act 1967, as amended by Amendment Act 2004. Section 10 of the Unlawful Activities (Prevention} Act 1967, as amended by Amendment Act 2004 reads as follows:-
"10. Where an association is declared unlawful by a notification issued under section 3 which has become effective under sub-section (3) of that section,-
(a) a person, who-
(i) is and continues to be a member of such association;
or
(ii) takes part in meetings of such association;
or
(iii) Contributes to, or receives or solicits any contribution for the purpose of, such association;
or
(iv) in any way assists the operations of such association, shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine;.
Even if the statements of the abovenamed witnesses are taken in their entirety no intention on the part of the petitioner to "assist the operations" of the LTTE, a banned organization can be gathered.
11. At this juncture, it is appropriate to consider the decisions relied on by the learned Public Prosecutor in State of Himachal Pradesh Vs. Pirthi Chand, wherein the Apex Court in para 12 has held as follows:
Para 12. It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge sheet. At that state it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The court has to prima facie consider from the averments in the charge sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offrence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e., in rarest cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence - the court may embark upon the consideration thereof and exercise the power.
12. It is also appropriate to consider the decision relied on by the learned Public Prosecutor in U.P.Pollution Control Board Vs. Bhupendra Kumar Modi (Dr.) and another, wherein the Apex Court in para 21, has held as follows:
It is out endeavour to point out that the High Court has quashed the complaint arising in an environmental matter in a casual manner by exercising power under Section 482 of the Cr.P.c. This Court has held exercise of power under Section 482 of the Code is the exception and under the rule there are three circumstances under which the inherent jurisdiction may be exercised i.e.
(a) to give effect to an order of the Court; (b) to prevent abuse of the process of the Court; (c) to otherwise secure the ends of justice. It is true that it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. While exercising inherent powers either on civil or criminal jurisdiction, the Court does not function as a Court of Appeal or Revision. The inherent jurisdiction though wide has to be exercised sparingly, carefully and with caution. It should be exercised to do real and substantial justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent abuse. When no offence is disclosed by the complaint, the Court may examine the question of fact. When complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant had alleged and whether any offence is made out even if the allegations are accepted in toto. When exercising jurisdiction under Section 482 of the Code, the High Court could not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained.
To put it clear, it is the function of the trial Judge to do so. The court must be careful to see that its decision in exercise of its power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. If the allegations set out in the complaint do not constitute offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Crl. Procedure Code. However, it is not necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal.
There is no quarrel over the proposition laid down in both the cases and it is settled proposition. But, in this case, as per the charge sheet averments, both A5 and A10 are standing in same footing. But already A5 has filed an application for quashing the charge sheet filed against him and in his part it was quashed.
13. At this juncture, it is appropriate to consider the averment in the charge sheet against this petitioner, wherein paragraph Nos.6 and 7 of the charge sheet, the relevant portion are extracted hereunder:
Having fully known that LTTE have been declared as an unlawful association by the Government of India, A5 Idayathullah and A10 Seema Basheer @ Basheer Ahamad have funded A18 LTTE Sathish and A2 Ragulan @ Antony for the purchase of iron balls and other materials for the sole purpose of smuggling them to LTTE at Srilanka for making bombs, landmines etc. The marginally noted accused A5 Idayathullah and A10 Seema Basheer @ Basheer Ahamad have received amount from LTTE through hawala transaction to the tune of several lakhs and they have contributed the same to A18 Sathish (absconding) and A2 Ragulan @ Antony, the agents of LTTE outfit in India since October 2006 for the benefit of LTTE, the banned organisation under Unlawful Activities (Prevention) Act 1967.
This shows that both A5 Idayathullah and A10 Seema Basheer @ Basheer Ahamad are standing in the same footing.
14. The learned Public Prosecutor has filed the 164 Cr.P.C. statement given by Karthik @ Kannan, who is one of the accused in the main case. In that statement, the said accused has stated only two lines about this petitioner, which read as follows:
'kz;zof;F brd;W gh;fj; ghaplk; gzk; thA;fpBdhk;. rjP&plk; gh;f;fj; gha; U.1,50,000/- gzk; bfhLj;jhh;.*' 'kz;zof;F gzk; thA;f vd;id Tl;o Bghdhh;. rPkg&Ph; vd;gtiu fhl;o mthplk; Bgha; vd;W rjP&; brhd;dhh;. ePA;fsh rjP&; vd;W rPkg&Ph; Bfl;lhh;. ehd; ny;iybad;W brhd;Bdd;. rjP&plk; Bghdpy; gpd;g[ U.2,00,000/- gzj;ij rjP&plk; bfhLj;jhh;.*' Except the above said averments, there is nothing against the petitioner and there is no evidence to show that the petitioner is having knowledge while handover the amount stating that the amount has been utilized for purchase of contraband materials for utilisation of banned organisation.
15. In paragraph 5 and 6 of the counter filed by the learned Public Prosecutor, he mainly focussing opon the 164 Cr.P.C statement of the accused Karthik @ Kannan. As already pointed that the said Karthik has stated that Sathish has received the amount from the one Bargath Boy. But, there is no evidence to show that the petitioner has knowledge about that the said amount has been utilized for banned organisation.
16. In such circumstances, the case on the hand the materials on record would show that the petitioner had indulged in hawala transactions with the other accused but the same will not be sufficient to hold that at least that there is strong suspicion that the petitioner had assisted a banned organization in its operation. The materials do not show that the petitioner had the necessary intention to assist LTTE in its operations viz., Unlawful Activities as defined under the Act. The act of the Petitioner in indulging in hawala transactions may attract some other penal laws but not the provisions of the Unlawful Activities Act 1967 as amended by the Amending Act 2004.
17. As regards the provisions of Section 14 of Foreigners Act 1946, Section 5 (a) of Explosive Substances Act 1908, Amended Act 54 of 2001 and 6 of Explosive Substances Act 1908. absolutely there are no materials available as against the Petitioner in the entire material placed by the prosecution.
18. In view of the above reasons, I find no merits in the arguments advanced by the learned Public Prosecutor and there is no prima facie case against this petitioner and this criminal original petition is liable to be allowed.
19. Accordingly, this criminal original petition is allowed and the prosecution as against the Petitioner alone in S.C. No S.C.No. 41 of 2009 on the file of the Special Court for EC and NDPS Act Cases, Pudukottai is quashed. Consequently, connected M.Ps. are closed.
Arul To
1. The Special Court for EC and NDPS Act Cases, Pudukottai.
2. The Deputy Superintendent of Police, Q Branch, C.I.D., Trichy.