Case BriefsHigh Courts

Kerala High Court: A Division Bench of A. Hariprasad and N. Anil Kumar, JJ. dismissed the appeals filed by the appellants by invoking Section 21 (4) of the National Investigation Agency Act, 2008 (“NIA Act”) as they were accused under Sections 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (“UA(P) Act”).

Facts:

On 01-11-2019, the appellants were restrained by Sub Inspector of Police for “suspiciously standing on a dark shop varandha”. Upon being searched, one of the appellants was found in possession of a shoulder bag which contained booklets and pamphlets/leaflets indicating their “association with Communist Party of India (Maoist), undisputedly a banned terrorist organisation figuring in the first schedule to the UA(P) Act”. Post this, the appellants were arrested and the “objectionable materials” were seized. The bail application filed by the appellants was dismissed by the Sessions Judge finding prima facie that there was material against the appellants to proceed with an investigation under Section 38 of the UA(P) Act.

Contentions:

Counsel for the appellants, K.S. Madhusoodanan and S. Rajeev, contended that the First Information Statement (FIS) did not state any reason for the arrest of the appellants. According to them, possession of certain readable materials ostensibly published by someone owing allegiance to Communist Party of India (Maoist) organisation, cannot by itself create any offence under the UA(P) Act. They argued that the 1st appellant was a law student and the 2nd appellant was a journalism student and that they should not be labelled as terrorists indulging in anti-national activities for reading some literature leaning towards left-wing. They stated that the arrest was illegal because there was no material on record to show that the Sub Inspector of Police was, in fact, an officer empowered by the designated authority under the UA(P) Act to effect an arrest.

Reliance was placed on the Supreme Court’s decision in in Arup Bhuyan v. State of Assam (2011) 3 SCC 377 and Indra Das v. State of Assam (2011) 3 SCC 380 to urge a proposition that being a member of a banned organisation does not make a person a criminal unless he resorts to or incites people to violence or create public disorder by violence or incitement to violence. However, the court rejected to peruse these two cases stating that there was no similarity in the facts and circumstances of the two cases.

Analysis:

High Court stated that on a plain reading of Section 20 of the UA(P) Act, it can be seen that punishment can be awarded only when it is proved that the accused is a member of a terrorist gang or terrorist organisation. At this stage of the investigation, it was too much to insist on proof to show that the appellants were in fact members of a banned organisation, as the activities of a banned organisation will be subterranean. Therefore, the Court held that the complicity of the appellants could be proved only after a thorough investigation.

Section 38 of the UAPA on the other hand, deals with the punishment of a person associated with a terrorist organisation with an intention to further its activities and thereby committing an offence relating to membership of a terrorist organisation. The Court held that the words “associated” and “professes to be associated” under this section are employed in a broad sense. Anybody indulging in such activities would do so clandestinely or surreptitiously. “Contextually, therefore, not only overt actions but covert actions may also at times satisfy the ingredients of the Section, provided they were done knowingly or consciously for the objectives mentioned in the Section”. But as the investigation was at its inceptive stage of the investigation, the court could not satisfy the ingredients of the offence.

The Court upheld the decision rendered by Sessions Judge to not grant bail to the appellants. They stated that they had considered the arguments advanced by the appellants that mere possession of such leaflets/pamphlets ipso facto will not be sufficient for branding an accused as members of a banned organisation. But, the nature of the materials cannot be lightly brushed aside as innocent possessions. According to the State Attorney, the materials recovered from the 1st accused included “details about the organisational set up of Communist Party of India (Maoist) and also their modes operandi in conducting meetings and disseminating Maoist ideology”. Finally, the Court held that the investigation on the case must continue and therefore, “release of the appellants at this stage of investigation may hamper or adversely affect the furtherance of the same”. [Thwaha Fasal v. State of Kerala, 2019 SCC OnLine Ker 4857, decided on 27-11-2019]

Amendments to existing lawsLegislation Updates

The Unlawful Activities (Prevention) Amendment Bill, 2019 has been passed by Parliament. The Bill will amend the Unlawful Activities (Prevention) Act, 1967 while enacting the Unlawful Activities (Prevention) Amendment Act, 2019.

Union Minister for Home Affairs, Shri Amit Shah said that:

Terrorist acts are committed not by organizations but by individuals. Declaring an organization as a terrorist organization will not stop the individuals behind it. Not designating individuals as terrorists, would give them an opportunity to circumvent the law and they would simply gather under a different name and keep up their terror activities.

The Minister said that only those individuals who participate in terrorist activities, aid those indulging in such activities, propagate the ideology of terrorism and members of known terrorist organizations will be declared as terrorists after this amendment is passed. He added that terrorism is a global problem and the UN along with several other countries, have provisions in their laws to designate individuals as terrorists.

The Amendment gives powers to DG, NIA to attach properties acquired from proceeds of terrorism. On this issue, Shri Shah said that this law does not take away powers of the state police. When NIA takes up a case having international and inter-state ramifications, all the facts pertinent to the case are with the NIA, and not with the state police. Currently, the law requires that NIA take prior permission from the respective state DGP to attach the proceeds of terrorism. This delays the process as often such properties are in different states, the Minister added.

Major Highlights:

  • the government can notify organizations as terrorist organizations by including them in the First Schedule.
  • empowers the officers of the National Investigation Agency, of the rank of Inspector or above, to investigate cases
  • Government can designate “individuals” as terrorists in accordance with this bill

Following are amendments passed by the Parliament:

Sections Amended

Unlawful Activities (Prevention) Act, 1967

Unlawful Activities (Prevention) Amendment Act, 2019

Section 2(1)(d)

“court” means a criminal court having jurisdiction, under the Code, to try offences under this Act [and includes a Special Court constituted under Section 11 or under “Section 21” of the National Investigation Agency Act, 2008

“court” means a criminal court having jurisdiction, under the Code, to try offences under this Act [and includes a Special Court constituted under Section 11 or under “Section 22” of the National Investigation Agency Act, 2008

Section 25 (1)

If an officer investigating an offence committed under Chapter IV or Chapter VI, has reason to believe that any property in relation to which an investigation is being conducted, represents proceeds of terrorism, he shall, with the prior approval in writing of the Director-General of the Police of the State “in which such property is situated, make an order” seizing such property and where it is not practicable to seize such property, make an order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order, or of the Designated Authority before whom the property seized or attached is produced and a copy of such order shall be served on the person concerned.

If an officer investigating an offence committed under Chapter IV or Chapter VI, has reason to believe that any property in relation to which an investigation is being conducted, represents proceeds of terrorism, he shall, with the prior approval in writing of the Director-General of the Police of the “in which such property is situated, or where the investigation is conducted by an officer of the National Investigation Agency, with the prior approval of the Director-General of National Investigation Agency, make an order” seizing such property and where it is not practicable to seize such property, make an order of attachment directing that such property shall not be transferred or otherwise dealt with except with the prior permission of the officer making such order, or of the Designated Authority before whom the property seized or attached is produced and a copy of such order shall be served on the person concerned.

Chapter VI [Heading Substituted]

TERRORIST ORGANISATIONS

TERRORIST ORGANISATIONS AND INDIVIDUALS

Section 35 (1) (a), (b), (c) & (d)

Section 36 [Marginal Heading] Denotification of a terrorist organisation

Denotification terrorist organisation or individual

Section 38 (1)(b)

that he has not taken part in the activities of the organisation at any time during its inclusion in the “Schedule” as a terrorist organisation

that he has not taken part in the activities of the organisation at any time during its inclusion in the “First Schedule” as a terrorist organisation

Section 43 [Addition of new clause]

“(ba) in the case of National Investigation Agency, below the rank of Inspector;”

Section 43 (c)

in any case not relatable to clause (a) or clause (b), below the rank of a Deputy Superintendent of Police or a police officer of equivalent rank,

in clause (c), after the words, brackets and letter “or clause (b)”, the words, brackets and letters “or clause (ba)” shall be inserted

Section 45 (1) (ii)

under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and “where” such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.

under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and “if” such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.

First Schedule
Second Schedule
Addition of Fourth Schedule

 

Legislation UpdatesNotifications

S.O. 1806(E)—Whereas, the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) (hereinafter referred to as the said Act) has been enacted to provide for more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith;

And whereas, as per clause (m) of sub-section (1) of Section 2 of the said Act, ‘terrorist organisation’ means an organisation listed in the First Schedule to the said Act or an organisation operating under the same name as an organisation so listed;

And whereas, the First Schedule to the said Act contains the list of such terrorist organisations;

And whereas, the ‘Jamaat-ul-Mujahideen Bangladesh’ came into existence in the year 1998 with the objective of establishing a Caliphate through Jihad;

And whereas, the Jamaat-ul-Mujahideen Bangladesh and its formations like Jamaat-ul-Mujahideen India or Jamaat-ul-Mujahideen Hindustan and their manifestations (hereinafter collectively referred as the JMB) have committed acts of terrorism, promoted acts of terrorism and have been engaged in radicalisation and recruitment of youth(s) for terrorist activities in India;

And whereas, the JMB was engaged in recruitment and raising funds for terrorist activities, procurement of explosives/chemicals and assembling of Improvised Explosives Devices;

And whereas, the involvement of JMB cadres has been established by the Investigation agency in the Burdwan bomb blast (2nd October, 2014) and Bodh Gaya Blast (19 January, 2018);

And whereas, Assam Police have found involvement of JMB in five cases registered by them and a total of fifty-six accused belonging to JMB were arrested by the Assam Police;

And whereas, investigations have also revealed JMB’s plan of making permanent bases within ten kilometers. along the Indo-Bangladesh border in the districts of States of West Bengal, Assam and Tripura and plans of spreading its network in South India with an overarching motive to establish Caliphate in the Indian subcontinent.

And whereas, the Central Government believes that the ‘Jamaat-ul-Mujahideen Bangladesh or Jamaat-ul-Mujahideen India or Jamaat-ul-Mujahideen Hindustan and all their manifestations’ are involved in terrorism as they have committed and participated in various acts of terrorism in India;

Now, therefore, in the exercise of the powers conferred by clause (a) of sub-section (1) of Section 35 of the Unlawful Activities (Prevention) Act, 1967, the Central Government hereby makes the following further amendments in the First Schedule to the said Act, namely:-

In the First Schedule to the said Act, after serial number 41 and the entries relating thereto, the following serial number and entries shall be inserted, namely:-

    “42. Jamaat-ul-Mujahideen Bangladesh or Jamaat-ul-Mujahideen India or Jamaat-ul-Mujahideen Hindustan and all its manifestations.”


[Notification dt. 23-05-2019]

Ministry of Home Affairs

Legislation UpdatesNotifications

S.O. 693(E)—Whereas, the Unlawful Activities (Prevention) Act, 1967 (37 of 1967) (hereinafter referred to as the said Act) has been enacted to provide for more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities and for matters connected therewith;

And whereas, as per clause (m) of sub-section (1) of Section 2 of the said Act, ‘terrorist organisation’ means an organisation listed in the First Schedule to the said Act or an organisation operating under the same name as an organisation so listed;

And whereas, the First Schedule to the said Act contains the list of such terrorist organisations;

And whereas, the ‘Tehreek-ul-Mujahideen’ (hereinafter referred as TuM) came into existence in the year 1990 with the objective of “liberation of Kashmir” and has been actively pursuing the same by way of acts of terror;

And whereas, the TuM carried out a number of terrorist attacks besides subversive acts, namely, grenade attacks, weapons snatching incidents, supporting other terrorist outfits, such as Hizb-Ul-Mujahideen (HM), Lashkar-e-Taiba (LeT), etc. in terms of financial and logistic support in the recent past;

And whereas, the TuM has committed acts of terrorism and promoting acts of terrorism and has been engaged in radicalisation and recruitment of youth for terrorist activities in India;

And whereas, a number of cases have been registered by the Jammu and Kashmir Police in the recent past, in which it is found that TuM has played a major role in commission of terrorist acts and a number of its cadres have been arrested;

And whereas, TuM is running terrorist training centres for Kashmiri youth and is likely to recruit more youth from the Jammu and Kashmir;

And whereas, the members of TuM are getting financial and logistic support from their handlers based abroad;

And whereas, the Central Government believes that the ‘Tehreek-ul-Mujahideen (TuM)’ is involved in terrorism as it has committed and participated in various acts of terrorism in India;

Now, therefore, in exercise of the powers conferred by clause (a) of sub-section (1) of Section 35 of the Unlawful Activities (Prevention) Act, 1967, the Central Government hereby makes the following further amendments in the First Schedule to the said Act, namely:-

In the First Schedule to the said Act, after serial number 40 and the entries relating thereto, the following serial number and entries shall be inserted, namely:-

“41. Tehreek-ul-Mujahideen (TuM) and all its manifestations.”

Ministry of Home Affairs

[F. No. 11034/19/2018-CT-I]


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