Karnataka High Court
Irfan Nasir @ Irfi vs Investigating Officer on 1 July, 2022
Bench: K.Somashekar, Shivashankar Amarannavar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2022
PRESENT
THE HON'BLE Mr. JUSTICE K. SOMASHEKAR
AND
THE HON'BLE Mr. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1535/2021
BETWEEN :
--------------
Irfan Nasir @ Irfi
S/o. late Nasir Sattar
33 years
R/o. H. No. 24, 'F' Street
Taskeen Apartments
Flat No. TF-301, 4th Floor
Cleveland Town
Frazer Town
Bengaluru - 560 005. ... APPELLANT
(By Sri. Sandesh Chouta, Sr. Counsel, for
Sri. Indra Kumar C., Adv.)
AND :
-------
Investigating Officer
National Investigating
Agency, New Delhi
2
Rep. by Special Public
Prosecutor
Bengaluru - 560 001. ... RESPONDENT
(By Sri. P. Prasanna Kumar, Special P.P)
---
This Criminal Appeal is filed under Section 21 of NIA
Act read with section 439 of Cr.P.C. with a prayer to quash
and set aside the impugned order dated 28.07.2021 passed
by the XLIX Additional City Civil and Sessions Judge
(Special Court of trial of NIA cases), (CCH50), Bengaluru
and etc.
This Criminal Appeal having been heard and reserved
for orders, this day, Shivashankar Amarannavar J,
delivered the following;
JUDGMENT
This appeal is filed by accused No. 3 challenging the order dated 28.07.2021 in Spl.C.C. No. 595/2021 on the file of XLIX Additional City Civil and Sessions Judge, Special Court for trial of NIA Cases, Bengaluru, rejecting his bail application filed under Section 439 Cr.P.C.. 3
2. Brief facts of the case are that on 20.03.2020, a case in R.C. No. 11/2020/NIA/DLI was registered at NIA Police Station, New Delhi, under Sections 120-B, 124-A and 153-A of the IPC and Sections 13 and 20 of Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as `UAP Act') which arose out of FIR No. 85/2020 dated 08.03.2020 of Special Cell (SB) Police Station, Lodhi Colony, New Delhi, after arrest of Jahanzaib Sami and his wife Hina Bashir Beigh on 08.03.2020, for having affiliation with the banned terrorist organization, viz., Islamic State Khorasan Province/ISKP, which is a part of banned terror organization ISIS/Daesh and both were planning some subversive activities in India. During investigation of the said case, another accused - Abdullah Basith was also arrested on 17.03.2020. It further reveal that during investigation, three more accused persons including Abdur Rahman @ Dr. Brave son of Nassrulla Sharief was arrested on 17.08.2020. During custodial interrogation of Abdur 4 Rahman, he revealed that he along with Afroz Ahmed/P.W.1 (C.W.1) visited Syria in 2013-14 and his visit was funded by the members of group viz., Quran Circle. His examination revealed that pro-ISIS activities are active in Bengaluru, in identifying and radicalizing gullible Muslim youth, recruiting, raising funds and facilitating their visit to Syria, illegally via Turkey, for jointing and fighting for ISIS. It further reveal that thereafter, as per the direction of Ministry of Home Affairs, the NIA registered this case on 19.09.2020, under Sections 120-B and 125 of the IPC, 1860 and Sections 17, 18 and 18-B of UAP Act. As per the charge sheet, it reveal that the investigation has established that the accused Nos. 3 and 5 entered into criminal conspiracy along with accused Nos. 1, 2 and 4 and other associates to wage war against Syria, which is an Asiatic power in alliance with Government of India, by radicalizing, recruiting gullible Muslim youth, raising funds, and sending them to Syria illegally, via Turkey to join ISIS 5 and to further the ideology and activities of ISIS. This accused was said to have been arrested on 07.10.2020 along with accused No. 5 - Ahamed Abdul Cader and there is allegation of conspiracy by these accused with absconding accused Nos. 1, 2 and 4 and other known and unknown associates based in India as well as in Abroad. In the year 2008 accused No. 3 through his collegemate Anas Khalid Chinoy came across with one Faiz Masood, who used to listen lectures of Islamic hardliner preaches and accused No. 3 also started to listen the lectures. There is allegation that this accused No. 3 attended the IQRA camp and got influenced by the lectures and one Faiz Masood took accused No. 3 to Lalbagh Masjid, Bengaluru, where both of them attended Hizb-Ut-Tehrir (HUT) meeting. The said HUT is said to be a banned organization. There is further allegation that this accused went to the residence of one Faiz Masood and paid Rs.80,000/- in order to help him to visit Syria for joining ISIS. Even this accused and others 6 went to Bengaluru Airport to drop said Faiz Masood for visiting Syria. Event here is allegation that the accused No. 3 paid Rs.50,000/- to one Anas Faruq/P.W.2 (C.W.2) to visit Syria and join ISIS. Accused No. 5 is alleged to have paid Rs.20,000/- to the said Faruz for the said purpose. Accused Nos. 3 and 5 were found in contact with co- accused persons and associates through secured social medial applications. Thus, after conclusion of investigation, the NIA has filed charge sheet against these two accused persons.
3. Appellant - accused No. 3 filed application under Section 439 Cr.P.C. before the Special Court contending that he never had any close association with other accused persons and there is no evidence to prove the offence under Section 120-B of the IPC against him. The respondent agency have retrieved chats, e-mail and SMS and even in one conversation, it appears the accused propagated 7 violence or called upon another person to commit any offence. The case of the prosecution is based on the testimony of one Anas Faruq who went to Syria and suffered bullet injuries and returned to India and the said Anas does not disclose the name of this accused before the Police, at the first instance. The said Anas in his first statement has stated that accused No. 2 asked him, if he wanted to go to Syria and also promised him of financial assistance. In the second statement the said Anas has added the name of this accused, which is a false implication. The said Anas has stated that this accused has paid a sum of Rs.50,000/- to him, but there is no document in this regard. This accused has voluntarily submitted his laptop and other gadgets to the prosecution and he has not forwarded or promoted any violence. The enquiry made by the agency is of business related emails and sundry things. There is no data which incriminate the accused in any offence. The agency though seized his 8 phone, but nothing incriminating is recovered. He has denied the allegation that he was involved in radicalizing youths to send them to Syria. The allegation that IQRA camp was used to identify and radicalize youths by this accused is denied. The accused No.3 is a family man with a child, aged about four years and he is a devoted father and husband. He is a peace loving person and he will not abscond, if released on bail and he is ready to abide by the conditions imposed by the Court. He is the only bread winner of the family and now they have no source of income to lead their life and thus prayed to allow the application.
4. The Special Court after affording an opportunity to the Spl.P.P. of NIA, heard the matter and rejected the said application. Hence, appellant-accused No. 3 has filed the present appeal seeking to set aside the said order and to grant bail.
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5. In the appeal memorandum it is stated that the impugned order passed by the trial Court is bad in law and contrary to the facts of the case; the order passed by the trial Court is based on conjunctures and surmises; the appellant is innocent and has been falsely implicated in the case on suspicion based on the statement made by Abdur Rahaman during custodial interrogation that his visit to Syria along with Afroz Ahamed was funded by members of Quran circle; the case of prosecution is based on the testimony of one Anas Faruq who went to Syria and suffered bullet injuries and returned to India. The said Anas Faruq does not divulge the name of appellant before the Police at the first instance. The entire case against the appellant was cooked up by the NIA and there was no material to support the allegations made against the appellant; the anti-CAA protest cannot be considered as terrorist activity because large number of people from all 10 over India have participated both in anti-CAA and pro-CAA protest which was a democratic dissent; then allegations made against the appellant are vague and improbable; there is no iota of evidence to connect him with the alleged offence; the material/evidence collected by the investigating agency reveals that not even single piece of evidence supports that the appellant has entered into criminal conspiracy with co-accused and other associates to wage war against Syria, an Asiatic Power in alliance with the Government of India by radicalizing, recruiting gullible Muslim Youth, raising funds and sending them to Syria illegally via Turkey to join ISIS and to further the ideology and activities of terrorist organization ISIS/ISIL/ISKP/DAESH. There is no prima facie case for opining that there are reasonable grounds for believing that the appellant was associated with ISIS or any organization banned as per Section 35 of UAP Act. The prosecution has not made out sufficient ground for charging criminal 11 conspiracy against the appellant. Appellant has not committed any of the act as defined under Section 15 of the UAP Act. The participation of the appellant in the IQRA Camp and Quran Circle and anti-CAA or NRC protest does not amount to terrorist act as he has not done any act with an intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India. Occasionally giving money for the visit to Syria cannot be considered as providing funds to terrorist activity. It is unlikely that the trial would be concluded within a reasonable period. The appellant is a law abiding citizen and has no criminal antecedents; he is a peace loving person and he will not abscond, if released on bail and he will not flee from justice.
6. Heard the learned Senior counsel Sri. Sandesh Chouta along with Sri. Indra Kumar C., for the appellant and learned Sri. P. Prasanna Kumar, learned Spl.P.P. for the respondent - NIA.
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7. Learned Senior counsel appearing for the appellant/accused No. 3 contended that there are no material to attract appellant/accused No. 3 to the alleged offence. ISIS is not a banned organization in the year 2003 when the alleged offence has taken place. Any person who is not a member of a banned organization cannot be prosecuted under the UAP Act. ISIS has been inserted by amendment in Schedule I of UAP Act at Sl.No. 38 by notification dated 16.02.2015. Earlier to that it was not a terrorist organization on the date of alleged offence by appellant/accused No. 3. He further contends that prosecution has not placed any material to show that Syria was in alliance with India. The appellant/accused No. 3 came to be implicated only on the basis of statement of P.W.1 and P.W. 2 who are alleged to have committed the prohibited act and who went to Syria at the alleged instance of appellant/accused No. 3. The learned Senior counsel 13 further contended that duty of the Court to record its opinion is that he accusation made against the accused concerned is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the continents of the case diary and including the charge sheet (report under Section 173 Cr.P.C.) and other material gathered by the investigation agency during investigation and on that point he placed reliance on the decision of the Apex Court in the case of Thwaha Fasal Vs. Union of India reported in (2021) SCC Online 1000.
The learned Senior counsel further contended that by its very nature the expression `prima facie' would mean that the materials/evidence collated by the investigation agency in reference to the accusation against the accused concerned in the first information report must prevail until contradicted and overcome or disproved by other evidence. On that point he placed reliance on the decision of the 14 Apex Court in the case of National Investigation Agency Vs. Zahoor Ahmad Sha Watali reported in 2019 (5) SCC 1.
The learned Senior counsel further contended that when the word `prima facie' is coupled with the word `true' it implies that the Court has undertaken an exercise of cross-checking the truthfulness of the allegations made in the complaint, on the basis of the material on record. If the Court finds, on such analysis, that the accusation is inherently improbable or wholly unbelievable, it may be difficult to say that a case, which is `prima facie true' has been made out. On that point he placed reliance on the decision of the Apex Court in the case of Dhan Singh Vs. NIA reported in 2019 SCC Online Bomb 5721.
The learned Senior counsel further contended that the tenure of statements of the four witnesses (P1 to 4), even if taken at par would indicate that the accused persons and those witnesses used to have discussion over the threats to 15 Islam; real, perceived or imaginary. Indeed, two of the witnesses have stated that the possible solutions to such threats, are also discussed including actions of ISIS. In the context of the accused No. 3, what has been attributed to him is that he seconded the use of one of the co-accused, who supported the activities of ISIS. These statements appear to be in the realm of discussion and deliberation which the accused and those witnesses had. At this juncture, there is no prima facie material to indicate that the accused No. 3 instigated the commission of offence or insurgency. Nor there is, prima facie, material to indicate that the accused No. 3 advocated violent reactions. The material which is pressed into service against the appellant prima facie, does not appear to be such guilty as to sustain a reasonable belief that the accusation against the appellant is true, in the totality of the circumstance. The bar envisaged by Section 43-D(5) of UAP Act may not operate with full force and vigor. On that point he placed reliance 16 on the decision of the Bombay Court in the case of Iqbal Ahmed Kabir Ahmed Vs. The State of Maharastra, Crl.A. No. 355/2021 decided on 13.08.2021.
The learned senior counsel further contended that while considering the grant of bail under Section 43-D(5) of the UAP Act it is the bounded duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. On that point he placed reliance on the decision of the Apex Court in the case of Sudesh Kedia Vs. Union of India reported in 2021 (4) SCC 704.
The learned Senior counsel further contended that there was absence of any material to show that even prima facie the accusations made against the respondent could be said to be true. The documents on which reliance was placed by learned ASJ most of which were certain posts uploaded on social media allegedly by the absconding co- 17 accused persons and others, indicating involvement of the respondent in terrorist act, it was submitted that such material when pursued in detail, demonstrated that no connection of such material could be drawn with the respondent. As regards the photographs on which reliance was placed by the learned ASG, it was submitted that merely because the respondent has posted with a gun in his hand, did not ipso facto demonstrate that the acquisitions made against him could be said to be crook. As regards the video clippings nowhere did the persons seen in the video ever take the name of the respondent and there was no connection even prima facie, established between the contents of the video clipping and respondent herein. The prosecution was unable to bring on record material to show a prima facie case against the respondent and that it could not be concluded that the prosecution could develop a chain of evidences to show the guilt of the respondent. On that point he placed reliance on the decision of the Apex Court 18 in the case of National Investigation Agency Vs. Areeb Ejaz Majeed reported in 2021 SCC Online Bom. 239.
The learned Senior counsel also placed reliance on the decision of this Court in the case of Sri. Saleem Khan and another Vs. State of Karnataka, Crl.A. No. 130/2021 decided on 21.04.2022 wherein this Court has held as under:
23. It is well settled that, in view of the provision of section 43D of the UA(P) Act it is necessary to strove to strike a balance between the mandate under Section 43D on the hand and the rights of the accused on the other. To decide as to whether the accusation in such cases is prima facie true, the following circumstances would provide adequate guidance for the Court to form an opinion, which read as under:
(i) Whether the accused is/are associated with any organization, which is prohibited through an order passed under the provisions of the act?19
(ii) Whether the accused was convicted of the offences involving such crimes, or terrorist activities, or though acquitted on technical grounds; was held to be associated with terrorist activities?
(iii) Whether any explosive material, of the category used in the commission of the crime, which gave rise to the prosecution; was recovered from, or at the instance of the accused?
(iv) Whether any eye witness or a mechanical device, such as CC camera, had indicated the involvement or presence of the accused, at or around the scene of occurrence? and
(v) Whether the accused was/were arrested, soon after the occurrence, on the basis of the information, or clues available 20 with the enforcement or investigating agencies?
8. Per contra, learned Spl.P.P. for NIA contended that the offence is committed in the year 2013 and the ISIS has been declared as a terrorist organization in the year 2015.
He placed reliance on the resolutions of Security Council of different dates stating the involvement of ISIS in commission of several crimes and death of several persons prior to its inclusion as a terrorist organization in the year 2015. He further contended that the term `whoever' contained in Sections 17 and 18 of the UAP act means `anyone' or `everyone' and therefore, an individual can be prosecuted for commission of offence under the UAP Act even though he is not a member of any terrorist organization contained the first schedule of UAP Act. It is his further submission that without terrorist act an offence under Section 17 of the UAP Act can be committed. It is his further submission that there was numerous phone calls 21 between appellant/accused No. 3 and person who died in Syria which show his involvement in the commission of offence. It is his further submission that India and Syria are having bilateral relations and therefore Syria is in alliance at peace with Government of India and the same can be ascertained from the website. He further contended that criminal conspiracy in terms of Section 120-B of IPC is an independent offence and on that point placed reliance on the decision of the Apex Court in `the case of R. Venkateshan Vs. Central Bureau of Investigation reported in (2009) 11 SCC 737.
It is further submitted that there are sufficient material to attract the offence alleged against appellant- accused No. 3 and there is a prima facie case against appellant-accused No. 3 for the offence alleged against him. Therefore, in view of Section 43-D(5) of the UAP Act the appellant-accused No. 3 is not entitled for grant of bail and the Special Court has rightly appreciated the same and 22 rightly rejected the bail application of appellant-accused No. which does not call for any interference by this Court.
9. Having heard the arguments of learned Senior counsel for the appellant-accused No. 3 and learned Spl.P.P. appearing for the NIA and on perusal of the material on record and the decisions relied on by the parties, the point that arises for our consideration in this appeal is:
"Whether the appellant-accused No. 3 has made out a ground to set aside the impugned order and to enlarge him on bail?"
10. In view of the principles laid down in the judgment rendered by the High Court of Judicature of Hyderabad in the case of Devendar Gupta and others Vs. National Investigation Agency, Crl.A. No. 795/2013 decided on 12.03.2014, [2014 (2) Crimes 177 (AP)] and also by the Apex Court in the case of National Investigating 23 Agency Vs. Zahoor Ahmed Shah Watali, reported in 2019 (5) SCC 1, it is clear that after filing the charge sheet under Section 173 of Cr.P.C. the Court has to consider the material on record to ascertain whether there are reasonable grounds for believing that the accusations leveled against the accused persons is prima facie true and if it is not, then the Court can exercise its discretion and also there is a rider that the burden is high on the accused in terms of the proviso contained in Section 43-D(5) of the UAP Act to demonstrate that the prosecution has not been able to show that there exists reasonable grounds to show that the accusations against them is prima facie true and does not alter the legal position to the effect that the charge sheet need not contain detailed analysis of the evidence. A perusal of the charge sheet material reveals that there is specific allegations made against appellant- accused No. 3 that he is an active member of ISIS and he along with other co-accused persons conspired to rage war 24 against Syria by identifying, radicalizing, recruiting, raising funds and sending gullible Muslim youths to Syria illegally via Turkey and to join ISIS and fight against Government of Syria. The appellant-accused No. 3 along with other accused persons and associates explored the Muslim personality development workshops namely IQRA camp held on the outskirts of Bengaluru to identify gullible Muslim Youths for further radicalizing them in the Quran circle group. There is allegation that this appellant-accused No. 3 along with other accused used to provide funds to sponsor Syria visit for joining ISIS. There is further allegation that he has instigated the sentiments of gullible Muslim youths to protest against citizenship Amendment Act. The said material attracts offences under Sections 120-B and 125 of IPC and Sections 17, 18, 18-B of the UAP Act.
11. The statement of Afroz Ahmed - P.W.1 recorded on 04.11.2020 by the Metropolitan Magistrate - 5, Patiala 25 House Court, New Delhi under Section 164 of Cr.P.C. wherein the witness has clearly spelled out the name of appellant-accused No. 3 for having committed the illegal activities such as being member of Quran circle group and raising funds to travel to Syria. This witness is injured in Syria while fighting against the security forces. The witness has also spoken about accused No. 1 - Mohd. Tauqir Mahamood, accused No. 5 - Ahmed Abdul Cader, accused No. 2 - Zuhaib Manna and accused No. 4 - Mohamed Shihab. There is clear material that appellant-accused No. 3 and other accused have funded for travel to Syria on behalf of Quran circle. Similarly the statement of P.W.2 - Anas Faruq recorded by the Metropolitan Magistrate - 5, Patiala House Court, New Delhi on 04.11.2020 also discloses that appellant-accused No. 3 and other accused used to conduct IQRA Camp on the outskirts of Bengaluru being members of Quran circle and involved in radicalizing the youths. There is a mention about the talk with respect to jihad, atrocities 26 caused upon Muslims, crisis of Middle East especially at Syria and instigation for doing jihad. This appellant-accused No. 3 and other accused have promoted PW2 to go to Syria and fight and when he expressed about lack of money they assured that they will arrange funds. There is specific allegation that appellant-accused No. 3 has paid Rs.50,000/- to this witness to go to Syria. There is recovery mahazar dated 07.10.2020 whereunder number of incriminating materials have been seized from the possession of this accused from his house. The images retrieved from the mobile phone of the accused show the image of ISIS.
12. What are the matters to be considered while deciding bail application has been considered by the Hon'ble Apex Court in the case of NIA Vs. Zahoor Ahmad Shah Watali reported in 2019 (5) SCC 1 and it is observed as under:
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1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
2. nature and gravity of the charge;
3. severity of the punishment in the event of conviction;
4. danger of the accused absconding or fleeing, if released on bail;
5. character, behaviour, means, position and standing of the accused;
6. likelihood of the offence being repeated;
7. reasonable apprehension of the witnesses being tampered with and
8. danger, of course, of justice being thwarted by grant of bail.
13. The Hon'ble Apex Court further held that when it comes to offences punishable under special enactments, such as UAP Act, something more is required to be kept in 28 mind in view of special provisions contained in Section 43-D of the Act. The Apex Court referring to proviso to sub- section 5 of Section 43D of the UAP Act, held that by virtue of the proviso to sub-section 5 it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. It is further held that in one sense the degree of satisfaction is lighter when the court has to opine that the accusation is prima facie true as compared to opinion of the accused not guilty of such offence as required under the other special enactments. The Apex Court further held, be it noted that the special provision Section 43D of the UAP Act, applies right from the stage of registration of FIR for the offences under Chapter IV and VI of the UAP Act until the conclusion of trial thereof.
14. We are of the opinion that the Special Court has rightly held that on perusal of the entire material on record 29 there is a prima facie case against appellant-accused No. 3 to show that he has committed the offence as alleged in the charge sheet and therefore he is not entitled for grant of bail.
15. Learned Senior counsel for the appellant-accused No. 3 contended that appellant-accused No. 3 was not a member of any terrorist organization enumerated in the first schedule of UAP Act and therefore he cannot be prosecuted under the UAP Act. It is relevant to refer to some of the provisions of UAP Act to consider the said contention of the learned counsel for the appellant-accused No. 3.
2(1)(k) "terrorist act" has the meaning assigned to it in section 15, and the expressions "terrorism" and "terrorist" shall be construed accordingly;
2(1)(l) "terrorist gang" means any association, other than terrorist organization, 30 whether systematic or otherwise, which is concerned with, or involved in, terrorist act;
2(1)(a) "association" means any combination or body of individuals
15. Terrorist act.--(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, economic security, or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,--
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or 31
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iiia) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or an 32 international or inter-governmental organization or any other person to do or abstain from doing any act; or commits a terrorist act.
Explanation.--For the purpose of this sub- section,--
(a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;
(b) "high quality counterfeit Indian currency"
means the counterfeit currency as may be declared after examination by an authorized or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.
(2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.
16. Punishment for terrorist act.--(1) Whoever commits a terrorist act shall,-- 33
(a) if such act has resulted in the death of any person, be punishable with death or imprisonment for life, and shall also be liable to fine;
(b) in any other case, be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
17. Punishment for raising funds for terrorist act.--Whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used, in full or in part by such person or persons or by a terrorist organization or by a terrorist gang or by an individual terrorist to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a 34 term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
Explanation.--For the purpose of this section,--
(a) participating, organizing or directing in any of the acts stated therein shall constitute an offence;
(b) raising funds shall include raising or collecting or providing funds through production or smuggling or circulation of high quality counterfeit Indian currency; and
(c) raising or collecting or providing funds, in any manner for the benefit of, or, to an individual terrorist, terrorist gang or terrorist organization for the purpose not specifically covered under section 15 shall also be construed as an offence.
18. Punishment for conspiracy, etc.--
Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable 35 with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
18A. Punishment for organizing of terrorist camps.--Whoever organizes or causes to be organized any camp or camps for imparting training in terrorism shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
18B. Punishment for recruiting of any person or persons for terrorist act.--
Whoever recruits or causes to be recruited any person or persons for commission of a terrorist act shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
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20. Punishment for being member of terrorist gang or organization.--Any person who is a member of a terrorist gang or a terrorist organization, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine.
16. What is `terrorist act' has been enumerated in Section 15 of the UPA Act and the punishment for terrorist act is provided under Section 16 of the UPA Act. The said provision commences with the words `whoever'. The dictionary meaning of `whoever' is `anyone or everyone'. Any person who is a member of terrorist organization contained in the Section 20 has not been used in the definition of terrorist act (Section 15) or in the offence of conspiracy punishable under Section 18 of UPA Act. Therefore, an individual can be prosecuted for terrorist act defined under Section 15 of the UPA Act and it is not 37 necessary that to prosecute any person under the UPA Act he should be a member of a terrorist organization. Being a member of a terrorist gang or organization which is involved in terrorist act itself is an offence under Section 20 of the UPA Act. Therefore, the contention of the learned counsel for the appellants that individuals who are not members of banned organization cannot be prosecuted for offences under UPA Act does not hold any substance.
17. A perusal of the material on record discloses that there is sufficient material against appellant-accused No. 3. Prima facie case exists against accused No. 3. Hence, there is no merit in this appeal. There are no grounds to set aside the impugned order dated 28.07.2021 passed in Spl.C.C. No. 595/2021 on the file of XLIX Additional City Civil and Sessions Judge and Special Court for NIA Cases, Bengaluru whereunder the bail application of the appellant-accused 38 No. 3 came to be rejected. There are no grounds to grant bail to appellant -accused No. 3.
18. In view of the above discussion, we proceed to pass the following;
ORDER
(i) The appeal is dismissed.
Sd/-
JUDGE.
Sd/-
JUDGE.
LRS.