Karnataka High Court
Mr. Abdul Saboor vs The State Of Karnataka on 6 February, 2017
Bench: B.S.Patil, B.V.Nagarathna
Crl.A.1554/2016
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2017
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
&
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
Crl.A.No.1554/2016
BETWEEN
MR. ABDUL SABOOR,
AGED ABOUT 24 YEARS,
S/O MOHAMMED HUSSAIN,
R/AT NO.392, DAROOL KHAIR,
JAMIABAD ROAD,
BHATKAL-581 320. ... APPELLANT
(By Sri S. BALAKRISHNAN, ADV.)
AND
THE STATE OF KARNATAKA
BY CCB POLICE,
REP. BY SPP,
HIGH COURT OF KARNATAKA,
BANGALORE-560 001. ... RESPONDENT
(By Sri CHETAN DESAI, GP)
THIS CRL.A. FILED U/S 21 OF NIA ACT, 2008, BY THE
ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE
COURT MAY BE PLEASED TO ENLARGE THE APPELLANT ON BAIL
IN CR.NO.11/2015 (NOW NUMBERED AS SPL.C.C.NO.330/2015) IN
XLIX ADDL. CITY CIVIL AND S.J., AND JUDGE, NIA SPECIAL
Crl.A.1554/2016
2
COURT, BANGALORE DATED 27.07.2016 P/U/S 13,16,18,20,38 OF
UAPA ACT AND U/S 120B,121A R/W 511 OF IPC AND U/S 4,5,6 OF
EXPOLSIVES ACT, 1984 ON THE FILE OF PULIKESHINAGAR
POLICE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
B.S.PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed under Section 21(4) of the National Investigation Agency Act, 2008 aggrieved by the order dated 27.07.2016 passed by the learned XLIX Additional City Civil & Sessions Judge (Special Court for trial of National Investigation Agency Cases), Bengaluru, in Special C.C.No.330/2015 thereby dismissing the application filed by the appellant under Section 439 Cr.P.C. seeking bail.
2. Briefly stated, facts giving rise to the present appeal are that, in the course of investigation of a case in Crime No.309/2014, a special investigation team of Cubbon Park Police Station which had been sent to Bhatkal in connection with bomb blast that occurred on 28.12.2014 at Church Street, Bengaluru, suspected involvement of accused - Syed Ismail Afaaq and Abdul Saboor (accused No.2). The team started Crl.A.1554/2016 3 secretly observing them with an intention to raid their houses. They learnt that accused Nos.1 & 2 were traveling to Bengaluru by Karwar - Bengaluru express train. The team gave information to C.W.1 (Assistant Commissioner of Police, CCB, Bengaluru). C.W.1 identified accused Nos.1 & 2 in the railway station on 08.01.2015, followed them to their house at Cox Town in Bengaluru; apprehended both the accused; subjected them to inquiry. He came to know that accused Nos.1 & 2 belonged to an organization called 'Indian Mujahideen' and were actually engaged in unlawful terrorist activity. He also learnt about criminal conspiracy, inasmuch as the said persons had stored huge quantity of explosives in the house of accused No.2 at Bhatkal, on which accused No.3 was keeping a secret vigil. This made C.W.1 to communicate to the special investigation team at Bhatkal, who in turn apprehended accused No.3, raided the house of accused No.2 at Bhatkal and seized huge quantity of explosives and other materials from the house of accused No.2. C.W.1 on his part seized the laptop, two mobile phones and a passport from accused Nos.1 & 2 at Bengaluru. Subsequently, after getting confirmation about seizure of explosives from the special investigation team at Bhatkal, a report was submitted by C.W.1 to the jurisdictional Crl.A.1554/2016 4 police i.e., Pulakeshinagar Police Station, who registered a case in Crime No.11/2015 against accused Nos.1 to 3 for the offences punishable under Sections 4 to 6 of Explosive Substances Act, 1908, Sections 120B & 121A of IPC and Sections 3, 13, 10 & 18 of Unlawful Activities (Prevention) Act, 1967 (for short, 'UAP Act').
3. Further case made out is that during the course of investigation, the investigating agency learnt about the role of other accused persons and they having collected huge quantities of explosives for the purpose of carrying out bomb blasts at various places in India during the visit of American President on the occasion of Republic Day of 2015.
4. The investigating agency has filed charge sheet on 07.07.2015 against nine persons. Out of whom accused Nos.5 to 9 have been absconding. Accused No.1 - Syed Ismail Afaaq and Accused No.2 - Abdul Saboor (appellant herein) had been arrested on 08.01.2015. Whereas, accused No.3 - Saddam Hussain was arrested on 09.01.2015.
5. Appellant herein/accused No.2 moved the Court below praying to enlarge him on bail pending trial of the case invoking Crl.A.1554/2016 5 Section 439 Cr.P.C. Application was contested. The Court below, as already pointed out above, has dismissed the application. It has come to the conclusion that documents made available by the prosecution, prima facie indicated that investigating agency had seized huge quantity of explosives from the house of accused No.2 at Bhatkal. Materials seized were mentioned in detail in Property Form No.6/2015. Articles allegedly seized from the house of accused No.2 included among others 975 grams of ammonium nitrate gel, 50 Class-2 gelatin sticks, 95 detonators, 70 resisters, 98 printed circuits, 150 printed circuit boards, etc. In the opinion of the Court below, the nature and quantity of items seized from the house of accused No.2 prima facie disclosed that in all probability they had been stored for the purpose of carrying out some unlawful activity. The Court below has also further found that although there were no allegation against accused No.2 of having either planted any bomb or having caused any explosions, the same had no bearing so far as the application filed for bail, because as per Section 18 of UAP Act, whoever conspires or attempts to commit, or advocates, abets, advises or incites, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be Crl.A.1554/2016 6 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.
6. The Court below, at the stage of consideration of plea for grant of bail, has held that keeping in mind the nature of facts and circumstances brought home by the investigating agency, the alleged storing of huge quantity of explosives and other materials by accused No.2 in his house it was indeed an act preparatory to the commission of terrorist act that is to say intended bomb blasts across the country and it was an act knowingly done to facilitate commission of such terrorist act. The Court below, by referring to Section 20 of UAP Act providing for punishment for person who is a member of terrorist gang or organization involved in terrorist act, has found that such offence was punishable with imprisonment for a term which may extend to imprisonment for life and also liable to fine. The Court below has also found that Indian Mujahideen, all its formations and front organizations have been declared as terrorist organizations with effect from 02.06.2010 as per First Schedule appended to UAP Act. Reference is also made by the Court below to the details Crl.A.1554/2016 7 received from laptops and mobile phones of the accused which allegedly revealed that accused No.2 was an active member of the group comprising of absconding accused. Therefore, the Court below has dismissed the application.
7. Learned counsel appearing for the appellant taking us through the provisions of UAP Act contends that no case has been made out by the prosecution against the appellant/accused No.2 either under Section 10 or 13, 16, 18, 20 or 38 of UAP Act. He submits that the alleged recovery made was not as a result of voluntary statement given by the appellant. Recoveries have been allegedly made in the absence of accused who was not at Bhatkal at the relevant point of time.
8. It is also urged by learned counsel for the appellant that mere recovery or seizure of certain materials such as ammonium nitrate gel, gelatin sticks or for that matter printed circuits cannot be taken to draw an inference that said items had been stored for the purpose of making bombs or other explosive devices and that materials seized in themselves were not dangerous. It is also contended by him that for the last two years, appellant has been in custody; there is no Presiding Crl.A.1554/2016 8 Officer presently posted to hear and dispose of the cases under special enactment and as a result, no charge has been framed so far, thereby giving room for a genuine apprehension on the part of the appellant that the trial will not be commenced in the near future, nor completed within a reasonable period of time and hence, this Court has to step into to enlarge the appellant on bail.
9. In support of the contentions, learned counsel for the appellant has placed reliance on the following judgments:
1. STATE OF KERALA Vs. RANEEF - AIR 2011 SC 340
2. SRI INDRA DAS Vs. STATE OF ASSAM - (2011) 3 SCC 380
3. BABBA @ SHANKAR RAGHUMAN ROHIDA Vs. STATE OF MAHARASHTRA - (2005) 11 SCC 569
4. SUNIL K.SINHA Vs. STATE OF BIHAR - AIR 1999 SC 1533
10. Learned High Court Government Pleader has resisted the contentions urged by the counsel for the appellant. He has taken us through the statement of objections filed, wherein it is urged that the appellant has been facing accusation of criminal conspiracy and attempt to wage war against Government of India, in addition to other accusations under the provisions of Explosive Substances Act and UAP Act. He urges that having Crl.A.1554/2016 9 regard to the seizure of huge quantity of explosive substances from the house of accused No.2 including pipe bombs, gun powder, detonators, electronic timer devices, and as several serious incriminating materials have been found in the course of investigation, this is not a fit case for grant of bail. He points out that appellant was found supplying explosives as per the instructions of absconding accused Nos.5 to 8 from Pakistan and Dubai to the Indian counterparts, who would operate the blasts. He urges that explosive materials and other devices used for preparation of explosives were found stored in the house of accused No.2. He places strong reliance on the seizure vide P.F.Nos.5/2015 and 6/2015 to contend that the case involved serious security concern and therefore, the Court has to be totally circumspect in granting bail by upsetting the order passed by the Court below.
11. Learned High Court Government Pleader invites our attention to sub-clause (5) of Section 43D of UAP Act to point out that if there are reasonable grounds to believe that accusation against persons involved was prima facie true, then the accused shall not be released on bail.
Crl.A.1554/201610
12. Having heard the learned counsel appearing for the appellant and the learned High Court Government Pleader and on careful perusal of the contents of the complaint given by Sri Ravi Kumar, Assistant Commissioner of Police, CCB, Bengaluru, dated 08.01.2015, the order passed by the Court below and the materials on record, the only point that arises for consideration is -
Whether a case has been made out by the appellant for releasing him on bail in exercise of the appellate powers conferred under Section 21(4) of the National Investigation Agency Act, 2008?
13. It is clear from the seizure effected and as reflected in P.F.No.6/2015 that huge quantity of explosive substances such as ammonium nitrate gel, gelatin sticks, detonators, resisters, printed circuits, fuel oil including pipe bombs, gun powder and electronic timer devices among others were seized from the house of accused No.2 on the statement made in the course of investigation of accused No.3 at Bhatkal. It cannot be said that seizure of such materials including pipe bombs and substantial quantity of other explosives cannot be termed as seizure of routine ordinary materials totally unconnected with the allegations made regarding alleged conspiracy hatched to carry Crl.A.1554/2016 11 out blasts in different places. Merely because voluntary statement of accused No.2 did not lead to such recovery, it cannot be said, at this stage, that the seizure is vitiated and cannot be looked into at least for the purpose of finding out prima facie case made out by the prosecution. It is true accused No.2/appellant has been arrested almost two years back, but the investigation has been completed, charge sheet has been filed and the matter is pending for trial. However, as urged by the counsel for the appellant, no Presiding Officer is posted to the Court, hence the matter is not being taken up and the case is still at the stage of framing of charges. Only because of this factor, it cannot be said, in the facts of the present case, that the accused has to be enlarged on bail because there is likelihood of delay in completion of trial. This is not a case where such an approach can be adopted merely on the ground that trial is likely to take considerable time while considering the plea for enlarging the accused on bail.
14. The judgments relied on by learned counsel for appellant, which pertain to delay in completion of trial and the resultant incarceration of accused therein necessitating their enlargement on bail, have nothing in common with the facts of Crl.A.1554/2016 12 the present case. In addition, even the contentions urged by learned counsel for appellant relying on some of the citations referred to supra urging that mere association of an accused with an organization where he did not share the unlawful purpose and did not participate in its unlawful activity, did not pose any threat to the public at large and therefore, he had to be enlarged on bail on the Doctrine of Guilt by Association does not also have any bearing on the facts of the present case. Therefore, reliance placed by learned counsel for appellant on the judgments in the cases of STATE OF KERALA Vs. RANEEF - AIR 2011 SC 340 and SRI INDRA DAS Vs. STATE OF ASSAM - (2011) 3 SCC 380 have no bearing on the facts of the present case. Similarly, judgment in the case of SUNIL K.SINHA Vs. STATE OF BIHAR - AIR 1999 SC 1533, wherein the accused was granted bail on the ground that trial was likely to be delayed also cannot be made basis for releasing the accused on bail in the instant case.
15. Facts, as presented in the instant case, at least at this stage, show that accused No.2 allegedly stored explosive materials including pipe bombs in his house. In addition, the investigating agency has recovered laptops and mobiles from the accused/appellant's house. It is allegedly found that Crl.A.1554/2016 13 accused had links with other co-accused and was hatching a conspiracy to carry out bomb blasts in the country. Therefore, the Court below has rightly found that there was prima facie material regarding involvement of accused in the offences alleged and it was not a case for releasing the accused on bail and no case had been made out for releasing the accused on bail. This, finding recorded by the Court below cannot be characterized as illegal, baseless or unfounded so as to warrant interference in exercise of appellate jurisdiction. The findings recorded are cogent and just. The conclusion reached logically follow from the reasons assigned.
16. Hence, the appeal being devoid of merit is dismissed. However, we make it clear that the observations made in the course of this order or for that matter in the course of the order passed by the Court below shall not influence the merits of the case in the course of trial.
17. At this stage, learned counsel for the appellant submits that a direction may be issued for speedy disposal of the case. We are afraid, without knowing the pressure on the Court below, such direction cannot be issued. However, we hope and Crl.A.1554/2016 14 trust that the Court below makes necessary endeavour to dispose of the case as early as possible.
Sd/-
JUDGE Sd/-
JUDGE PKS