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TMI Blog2024 (8) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... cated, abetted, advised, or incited the commission of terrorist acts or any preparatory activity. Taking the charge sheet as correct, it is not possible to record a prima facie finding that the appellant knowingly facilitated the commission or preparation of terrorist acts by letting out the first floor premises. Again, there is no allegation in the charge sheet against the appellant that he organised any camps to impart training in terrorism. On plain reading of the charge sheet, it is not possible to record a conclusion that there are reasonable grounds for believing that the accusation against the appellant of commission of offences punishable under the UAPA is prima facie true - it is impossible to record a prima facie finding that there were reasonable grounds for believing that the accusation against the appellant of commission of offences under the UAPA was prima facie true. No antecedents of the appellant have been brought on record. There was no reason to reject the bail application filed by the appellant - appellant is directed to be enlarged on bail on the terms and conditions as may be fixed by the Special Court. For that purpose, the appellant shall be produced before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d submit that the appellant's case satisfies the tests laid down by Section 43D (5) of the UAPA, as there are no reasonable grounds for believing that the accusations against the appellant are prima facie true. Learned senior counsel relied upon a decision of this Court in the case of Shoma Kanti Sen v. State of Maharashtra and another (2024) 6 SCC 591 . 3. Ms Aishwarya Bhati, learned Additional Solicitor General of India, invited our attention to statements of the protected witnesses V, Y, and Z, tendered on record, in a sealed cover. She pointed out that CCTV footage seized by the Investigating Agency of the building Ahmad Palace shows that on 6th and 7th July 2022, the appellant and accused no. 1 were seen shifting certain items from the first floor of the building. When the police conducted a raid on 11th July 2022, those items were not found, and therefore, the appellant tampered with the evidence. Relying upon paragraph 17.16 of the charge sheet, she submitted that protected witness Z disclosed that on 29th May 2022, the appellant attended a meeting-cum-training on the first floor of the building Ahmad Palace along with several other accused who were associated with PFI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copies in Hindi and 30 copies in Urdu, 49 cloth Flags, 02 magazines Mulk ke liye Popular front ke saath and one copy of rent agreement on non Judicial Stamp by Farhat Bano w/o Md Jalaluddin Khan (A-2) with tenant Athar Parvej (A-1) son of Abdul Qayum Ansari. The recovered articles and a Samsung mobile phone having SIM card of accused Mohammed Jalaluddin (A-2) were seized in the instant case. They were related to anti-India activities. 5. Following are the other paragraphs in the charge sheet relied upon by the respondent: 17.16 Protected witness- Z further stated that on 29th May 2022, a meeting cum training was organized in Ahmad Palace, Phulwarisharif Parna, a rented accommodation arranged by Athar Parvej (A-1) and others in this criminal conspiracy. This meeting was chaired by Riyaz Firangipet (A-20) of Karnataka and approximate 40-45 persons including Mahboob Alam Nadvi (A-7), Sanaullah (A-5), Riyaz Mourif (A-4), Mehboob- Ur-Rehman (A-11), Ehsan Parvez (A-7), Ansarul Huque (A-21), Riyaz Ahmed (A-17), Perwez Alam (A-26), Tausif Alam (A-6), Athar Parvej (A-1), Md. Jalaluddin (A-2) and others, who are associated with PFI, attended this meeting. During this meeting, the points rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the building on rent, the prosecution's case is that though the land and the building stand in the name of the appellant s wife, she is merely a name lender. The appellant purchased the property on 19th April 2005 for the consideration of Rs. 1,25,000/-. In the counter, the respondent has relied upon the appellant's disclosure /confessional statement. Whether such a statement is admissible in evidence or not is another thing. In the statement of the appellant relied upon by the respondent, it is stated that accused no.1, Athar Parvez, met his elder son Aamir Jalal Khan, in April 2022 and discussed renting the first floor of the building to him. The appellant s elder son - Aamir Jalal Khan, quoted rent of Rs 25,000/- per month. After that, there were negotiations, and finally, the rent was fixed at Rs. 16,000 per month. Accused no.1 gave Aamir Jalal Khan an advance of Rs. 5,000/-. Thereafter, a sum of Rs. 25,000/- was transferred by accused no.1 to the account of Aamir Jalal Khan and the remaining amount of Rs. 2,000/- was paid at the time of execution of the lease. In the appellant s statement, it is stated that this amount of Rs. 32,000/- was paid as advance rent for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slamic India . It is alleged in the charge sheet that the scrutiny of the said documents revealed that the said documents were about establishing Islamic rule in India. It is pertinent to note that there is no mention in the charge sheet about the nature of the articles allegedly shifted earlier by the appellant from the first floor premises. If the appellant intended to shift incriminating material circulated by PFI, he would have shifted the material mentioned in paragraph 17.1 of the charge sheet. A statement by Syed Abu Monawwar discloses that there were commercial premises, such as shops, pathology labs, etc., on the ground floor of the said building. If the appellant intended to allow the conduct of the objectionable activities of PFI by giving first floor premises on rent, he would not have installed CCTV cameras. 10. Now, we turn to the circumstance relied upon by learned ASG, which is in paragraph 17.16. Paragraph 17.16 purports to reproduce what protected witness Z stated. We again reproduce the said paragraph, which reads thus: 17.16 Protected witness- Z further stated that on 29th May 2022, a meeting cum training was organized in Ahmad Palace, Phulwarisharif Parna, a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discussion about the activities of PFI in the meeting held on 29th May 2022. According to the witness, the direction to kill Nupur Sharma was issued in June 2022 and not in the meeting of 29th May 2022. We are not reproducing the statement of the protected witness Z as it has been kept in a sealed cover. Suffice it to say that what is reproduced in paragraph 17.16 is not correct. The material portion of witness Z's actual statement has been completely distorted in paragraph 17.16 of the charge sheet. Several things which protected witness Z did not state have been incorporated in paragraph 17.16. Unfortunately, paragraph 17.16 attributes certain statements to protected witness Z, which he did not make. NIA owes an explanation for that. The investigating machinery has to be fair. But, in this case, paragraph 17.16 indicates to the contrary. 12. Now, we come to the provision relating to bail under the UAPA, which is sub-Section 5 of Section 43D of the UAPA, which reads thus: 43-D. Modified application of certain provisions of the Code. .. (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the first report made under Section 173 of the Code, as in the present case. 32.3. Reasoning, necessary but no detailed evaluation of evidence : 24. the exercise to be undertaken by the Court at this stage of giving reasons for grant or non-grant of bail is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. 32.4. Record a finding on broad probabilities, not based on proof beyond doubt : The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. 32.5. Duration of the limitation under Section 43-D(5) : 26. the special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. 32.6. Material on record must be analysed as a whole ; no piecemeal analysis 27. the totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held in the case of Thwaha Fasal4, the Court has to examine the material forming part of the charge sheet to decide whether there are reasonable grounds for believing that the accusations against the person applying for bail are prima facie true. While doing so, the court must take the charge sheet as it is. 16. Now, we come to the offences alleged against the appellant. Offences punishable under Sections 13, 18, 18A, and 20 of the UAPA have been alleged against the appellant. Section 13 reads thus: 13. Punishment for unlawful activities. (1) Whoever (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine. (2) Whoever, in any way, assists any unlawful activity of any association, declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (3) Nothing in this section shall apply to any treaty, agreement or conventio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to commit any terrorist act to which the appellant was a party. There is no material produced on record to show that the appellant advocated, abetted, advised, or incited the commission of terrorist acts or any preparatory activity. 17. We must note here that the appellant s son conducted the negotiations for giving the first floor on rent. Taking the charge sheet as correct, it is not possible to record a prima facie finding that the appellant knowingly facilitated the commission or preparation of terrorist acts by letting out the first floor premises. Again, there is no allegation in the charge sheet against the appellant that he organised any camps to impart training in terrorism. 18. Now, we come to Section 20 of UAPA, which reads thus: 20. Punishment for being member of terrorist gang or organisation. Any person who is a member of a terrorist gang or a terrorist organisation, 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. Terrorist gang has been defined in Section 2(L), which reads thus: 2 Definitions. . (L) terrorist gang means any association, other than terror ..... X X X X Extracts X X X X X X X X Extracts X X X X
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