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However, the learned Additional Solicitor General submits that the appellants have committed an offence under Section 18 of UAPA as the statements of the Listed Witnesses would certainly indicate the commission of an act preparatory to the commission of a terrorist act. The learned Additional Solicitor General relied upon the statements made by several Listed Witnesses who repeatedly stated that some of the appellants have either trained or organised or facilitated training to use weapons such as knives, swords and bottles etc., as part of physical education training. Referring to the statements of some of the witnesses that training was given to throw beer bottles filled with water on specified targets, the learned Additional Solicitor General submitted that the training was given to the cadres only to throw bombs on targets and therefore, the involvement of the appellants in doing something to impart weapon training and to throw bottles is an act preparatory to the commission of terrorist act. Similarly, the learned Additional Solicitor General referred to the statements of one of the witnesses who has given statement to the effect that one of the accused namely A6 wanted to https://www.mhc.tn.gov.in/judis  CRLA.Nos.98, 114 & 116/2023 recruit several youngsters belonging to Muslim community and that members of PFI when opportunity comes in future, should join with ISIS to get weapon training and to fight for the said Organization and later, they should come back and join PFI to execute their future plans. This Court is unable to countenance the submission of the learned Additional Solicitor General for the following reason. First of all, the prosecution in the present case, has failed to establish through any material, the real objectives of the Organization or the motive behind the establishment of PFI so as to describe the Organization as a terrorist Organization. When the Organization as such, has been declared to be an unlawful Association, this Court cannot now presume that the existence of the Organization was with an intention to commit acts of terrorism within the meaning of Section 15 of UAPA especially when no terrorist act organized by PFI is reported. From some of the materials, as found in the typed set of documents, this Court at best, without any contradiction, may infer that the intention of the Organization was to protect the members of Muslim community from the oppression or violence like mass lynching by the majority community.

The term ‘preparation’ is often used to indicate a process of being prepared or to make anyone ready. None of the witnesses have spoken about any statements by any of the appellants about the training for using petrol bombs. It is not the statement of any of the Listed Witnesses that the training was to make the cadres to make petrol bombs or to throw such petrol bombs with an intention to strike terror or to pose a threat to unity, integrity and security or the sovereignty of India. In the overall https://www.mhc.tn.gov.in/judis  CRLA.Nos.98, 114 & 116/2023 context, the intention for giving training was to protect Muslim community from violence as seen from the literatures circulated and found in the typed set. The word ‘preparatory’ should be understood in the context. It is also relevant to point out here that under the general penal law preparation is not punishable barring a few exceptions. Section 18 of the Unlawful Activities (Prevention) Act, 1967, makes any Act preparatory to the commission of Terrorist Act punishable. It is trite that Penal Law should be construed strictly. To bring an Act within the meaning of preparatory it must be proximate to the Act which is intended to be committed out of that preparation. Any remote Acts, from which it cannot be definitely concluded that it was for the preparation of the terrorist act, cannot be called as preparatory acts within the meaning of Section 18 of the Unlawful Activities (Prevention) Act, 1967. In the instant case, it is the allegation of the prosecution that training was given by the accused to various persons to throw beer bottles filled with water and to aim at objects. From this, the prosecution draws an inference that this training was imparted only to make petrol bombs later and use those https://www.mhc.tn.gov.in/judis  CRLA.Nos.98, 114 & 116/2023 petrol bombs for achieving the object of the accused. It is not the case of the prosecution that the accused was found in possession of any petrol bombs, in which case, it may be a proximate act and may be a preparatory act for the commission of terrorist act. Therefore, in order to bring any act as preparatory act to commit terrorist act, as stated earlier, it must be proximate to the intended result. In other words, an act which is in the nature of preparatory, without an intention to commit a terrorist act attracting Section 15, will not be construed as an act to attract Section 18 of UAPA. Learned counsel for the appellants in Crl.A.Nos.114 & 116/2023 relied upon the judgment of the Hon’ble Supreme Court in the case of Union of India Vs. K.A.Najeeb reported in 2021 [1] SCR 443, for the proposition that the statutory limitations under Section 43[D][5] of UAPA, per se does not oust the power of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. This Court is not inclined to rest this judgment solely on that principle as there are factual issues which would make the judgment distinguishable in this case where the bail plea is considered within a period of one year and the disposal of the main proceedings can be predicted. In this case, the https://www.mhc.tn.gov.in/judis  CRLA.Nos.98, 114 & 116/2023 Charge Sheet had already been filed. This Court has taken note of the broad guidelines of the Hon’ble Supreme Court in Najeeb’s case. In K.A.Najeeb’s case, it is to be noted that the Hon’ble Supreme Court dealt with a case which is more serious than the present case. In the said case, the accused who belonged to a group of people, attacked a Professor and chopped off his right palm with choppers. During the pendency of the criminal case where the accused were prosecuted for offences under various Sections of the Indian Penal Code along with Sections 16, 18, 18B, 19 and 20 of UAPA, the Hon’ble Supreme Court was unable to uphold the view of the High Court of Kerala that the statutory restriction for grant of bail under Section 43[D][5] of UAPA was attracted.

With regard to the offences under Sections 18 and 18A of UAPA, the Division Bench has held as follows:-

''14.A more important and crucial issue on which the appellants and the respondent are in great controversy is regarding sustainability of the conviction and sentence imposed for offences punishable under the Unlawful Activities (Prevention) Act, 1967 (for short ‘the UA(P) Act’). The court below had imposed conviction against accused Nos. 1 to 21 https://www.mhc.tn.gov.in/judis  CRLA.Nos.98, 114 & 116/2023 under Sections 18 and 18A of the UA(P) Act. Learned counsel for the appellants contended that, the accused Nos. 1 to 21 had not committed any terrorist act nor any act preparatory for commission of a terrorist act. He further argued that the accused Nos. 1 to 21 have not organised or caused to be organised any camp for imparting training in terrorism. While examining the question, it would be beneficial to have a scanning of the relevant provision in the UA(P) Act, defining the terms, ‘Terrorism’ as well as ‘Terrorist act’. Section 2(k) of UA(P) Act provides that “terrorist act” has the same meaning assigned to it in Section 15, and the expressions ‘terrorism’ and ‘terrorist’ shall be construed accordingly. Section 15 of the UA(P) Act envisages punishment for Terrorist activities. It provides that, whoever does any act with the intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with the intent to strike terror or likely to strike terror in people or any section of the people in India or in any country by using explosive substances and arms mentioned under Sub Section (a) or by any other means to cause or likely to cause death or injuries to any person or persons or loss or damage or destruction to property, https://www.mhc.tn.gov.in/judis  CRLA.Nos.98, 114 & 116/2023 is punishable under the said provision. Therefore, the ingredients to constitute a ‘terrorist act’ are mainly that there should be an act committed with an intention to cause threat or likely to cause threat to the unity, integrity, security or sovereignty of the India or with an intent to strike terror or likely to strike terror in people or any section of people in the country. Secondly, there should be usage of the explosives or arms with the above said intent in order to cause or likely to cause death or injury to person or loss or damage or destruction to property. Sub Clause (b) and (c) to Section 15 are not relevant in this context. The question to be analysed is as to whether the unlawful assembly of accused Nos. 1 to 21 and their possession and having control over the arms and explosive substances was with any intention to commit a ‘terrorist act’ or was in any manner preparatory to the commission of a ‘terrorist act’. Learned Special Prosecutor argued that the intention with respect to the unlawful assembly and their possession and control over the substances need to be inferred as one intended to strike terror among people, even assuming that there is no evidence to prove that it is intended to threaten the unity, integrity, security or sovereignty of the country. He further https://www.mhc.tn.gov.in/judis  CRLA.Nos.98, 114 & 116/2023 contended that, use of such explosive substances for the purposes of demonstration would satisfy the ingredients of the usage, contemplated under clause (a) of Section 15. It is also contended that such usage, when it becomes likely to cause death or injury, can be considered as usage coming within the purview of that sub clause, dehorse whether any death or injury has sustained to any person or any damage or destruction had caused to any property. As we already discussed, the prosecution has not established through any convincing evidence the aims and the objectives or the activities of the organizations or regarding the motives and objectives in convening the alleged camp and in imparting training in manufacture and usage of the arms and the explosive substances. Despite the specific allegation that the accused were seen engaged in imparting training in manufacture of Bombs and in usage of arms, no cogent or convincing evidence is forthcoming with respect to any training being conducted at the premises, apart from the possession and control over the incriminating substances. Further, the prosecution has not succeeded in proving through any credible evidence their specific case that, the assembly and the alleged training was with a declared https://www.mhc.tn.gov.in/judis  CRLA.Nos.98, 114 & 116/2023 intention to protect members of the particular community from the alleged torture of the other community, especially from hindus. Under such context, this court is of the view that the conviction imposed under Section 18A of UA(P) Act cannot be sustained in any manner.

Section 18 of UAPA, as pointed out above, can come into play only when an act is construed as an act preparatory to the commission of a terrorist act. As pointed out earlier, when PFI is only declared as an unlawful Association and not a terrorist Organization so far, any preparatory act in the context, should be construed as one in defence and not to perpetrate any terrorist act. In the context of the present case, where the literature and other things indicate that the Organization as such was established at https://www.mhc.tn.gov.in/judis  CRLA.Nos.98, 114 & 116/2023 least in paper that the training they wanted to give, was to protect the community as such when communal violence is unleashed against them, this Court cannot interpret the act as spoken by the Listed Witnesses as an act which is in the nature of preparatory to commission of terrorist act.