Partly allowed

Mr.Fakir Ahmed v. State of Karnataka

Karnataka HC14 Nov 2022CRL.A/820/2017

Case brief

AI extract

What is this about?

Terrorism and explosives convictions were partly set aside, including UAPA convictions lacking statutory sanction. The court substituted Section 5(a) explosives convictions, imposed ten years on two appellants and time served on the third, and retained the Explosives Act convictions. Concurrent sentences, set-off and conditional release were ordered.

What did the court decide?

Convictions partly set aside; Section 5(a) sentences substituted; concurrent sentences and set-off granted; release ordered upon payment of fines unless required in another case.

Mr.Fakir Ahmed Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2022)

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CRL.A No. 1206 of 2017 C/W CRL.A No. 820 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF NOVEMBER, 2022

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PRESENT

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THE HON'BLE MR. JUSTICE B.VEERAPPA

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AND

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THE HON'BLE MRS. JUSTICE K. S. HEMALEKHA

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CRIMINAL APPEAL No.1206 OF 2017 C/W

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CRIMINAL APPEAL No.820 OF 2017

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IN CRL.A. No.1206/2017

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BETWEEN:

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SAYYED MOHAMMED NAUSHAD, S/O SAYED MOHAMMED IRSHAD, AGED ABOUT 32 YEARS, R/O SHADI MAHAL, DOOR NO.21-158-3, 1^ST MAIN, SUBHASHNAGAR, PANDESHWAR, MANGALURU-575 001.

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Digitally signed by MALATESH K C Location: High Court of Karnataka

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AHAMAD BAVA ABOOBAKKAR, S/O ABOOBAKKAR, AGED ABOUT 39 YEARS, R/O BELLUR, HALEANGADY, MANGALURU-574 146.

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…APPELLANTS

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(BY SRI TOMY SEBASTIAN, SENIOR COUNSEL A/W SRI RAVINDRA GOWDA, ADVOCATE FOR APPELLANT No.1; BY SRI C.H. JADHAV, SENIOR COUNSEL A/W MS. SAGARIKA RAMESH, ADVOCATE FOR APEELLANT No.2)

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AND:

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STATE OF KARNATAKA, THOUGH STATION HOUSE OFFICER, ULLALA POLICE STATION, MANGALURU-575 020. REPRESENTED BY STATE PUBLIC PROSECUTOR, HON'BLE HIGH COURT OF KARNATAKA, BENGALURU-560 001.

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…RESPONDENT

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(SRI KIRAN S. JAVALI, SPP-I A/W SRI VIJAY KUMAR MAJAGE, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 10.04.2017 AND ORDER OF SENTENCE DATED 12.04.2017 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN S.C.NO.60/2009 - CONVICTED THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 16(1)(b),17,18 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT AND SECTIONS 5(b),9B(1)(b) OF EXPLOSIVES ACT, 1884, AND SECTIONS 420,468,471 AND 120(B) R/W 149 OF IPC AND SECTION 25(1AA) R/W 3 OF ARMS ACT AND THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 16(1)(b),17,18 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT AND SECTIONS 5(b),9B(1)(b) OF EXPLOSIVES ACT AND SEC. 120(B) R/W 149 OF IPC AND SEC. 25(1AA) R/W 3 OF ARMS ACT.

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IN CRL. A. No.820/2017

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BETWEEN:

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MR.FAKIR AHMED, @ FAKIR, S/O D. AHMED ISMAIL, R/O MANSOOR HOUSE, SRI GURUNARAYANA KRUPA ROAD,

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CRL.A No. 1206 of 2017 C/W CRL.A No. 820 of 2017

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UCCHILA, UDUPI DISTRICT-574 117.

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…APPELLANT

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(BY SRI BHARATH KUMAR V., ADVOCATE)

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AND:

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STATE OF KARNATAKA, THOUGH STATION HOUSE OFFICER, ULLALA POLICE STATION, MANGALURU-575 020, REPRESENTED BY STATE PUBLIC PROSECUTOR, HON'BLE HIGH COURT OF KARNATAKA, BENGALURU-56 0001.

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…RESPONDENT

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(SRI KIRAN S. JAVALI, SPP-I A/W SRI VIJAY KUMAR MAJAGE, ADDL. SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 10.04.2017 AND ORDER OF SENTENCE DATED 12.04.2017 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU IN S.C.NO.60/2009. APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 16(1)(b),17,18 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT AND SECTIONS 5(b),9B(1)(b) OF EXPLOSIVES ACT, 1884 AND SECTION 120(B) R/W 149 OF IPC AND SECTION 25(1AA) R/W SECTION 3 OF ARMS ACT AND SECTION 6 OF EXPLOSIVE SUBSTANCES ACT, 1908.

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THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:

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J U D G M E N T

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Criminal Appeal No.1206/2017 is filed by accused Nos.1 and 2, and Criminal Appeal No.820/2017 is filed by the accused No.6, against the judgment of conviction dated 10.04.2017 and order of sentence dated 12.04.2017 passed in S.C.No.60/2009 on the file of the III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru, sentencing the accused No.1 to undergo Rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo Rigorous imprisonment for one year; to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for three months; to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for three months, for the offences punishable under Sections 16(1)(b), 17 and 18 respectively, of the Unlawful Activities (Prevention) Act, 1967; to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year for the offence

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punishable under Section 5(b) of the Explosive Substances Act, 1908; to undergo rigorous imprisonment for two years and to pay fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for three months for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884; to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 120B read with Section 149 of the Indian Penal Code; to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 420 of the Indian Penal Code; to undergo rigorous imprisonment for three years and to pay fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for three months for the offence punishable under Section 468 of the Indian Penal Code; to undergo rigorous imprisonment for three years and to pay fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for three months for the offence punishable under Section 471 of the Indian Penal Code; to undergo rigorous

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imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 25(1AA) r/w Section 3 of the Arms Act, 1959; further, sentencing the accused No.2 to undergo Rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo Rigorous imprisonment for one year; to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for three months; to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for three months, for the offences punishable under Sections 16(1)(b), 17 and 18 respectively, of the Unlawful Activities (Prevention) Act, 1967; to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 5(b) of the Explosive Substances Act, 1908; to undergo rigorous imprisonment for two years and to pay fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for three months for the offence punishable under Section 9B(1)(b) of the Explosives

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Act, 1884; to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 120B read with Section 149 of the Indian Penal Code; to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 25(1AA) r/w Section 3 of the Arms Act, 1959; and further, sentencing the accused No.6 to undergo Rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo Rigorous imprisonment for one year; to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for three months; to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for three months, for the offences punishable under Sections 16(1)(b), 17 and 18 respectively, of the Unlawful Activities (Prevention) Act, 1967; to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year for the offence

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punishable under Section 5(b) of the Explosive Substances Act, 1908; to undergo rigorous imprisonment for two years and to pay fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for three months for the offence punishable under Section 9B(1)(b) of the Explosives Act, 1884; to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 120B read with Section 149 of the Indian Penal Code; to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 25(1AA) r/w Section 3 of the Arms Act, 1959; to undergo rigorous imprisonment for life and to pay fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 6 of the Explosive Substances Act, 1908, further, directing the sentences for life to run concurrently and the remaining term of sentences to run consecutively.

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I. FACTS OF THE CASE

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It is the case of the prosecution that accused Nos.1, 2 and 6 residents of Mukkachery and Chembugudde of Ullal village, Mangaluru Taluk, Dakshina Kannada, being the members of banned Students Islamic Movement of India (SIMI) and Indian Muzahiddin Organization, involved themselves in the terrorist activities from 2004-2008 to do terrorist activities in India, conducted unlawful activities and unlawful meetings to make the Indian Government insecure and to spoil the unity of the Nation. Further, to wage war against India, the accused persons collected arms and manufactured the ammunitions, conspired and possessed the arms, illegally, with an intention to cause explosion. They also transported the arms, explosives and explosive substances. They were in illegal possession of materials used for manufacturing explosive bombs only with an intention to explode the bombs at various places of India. All the accused transported the special substances of circuits, timer and practiced target with bow and arrow. They were also found in unlawful possession of materials relating to Jihad. They also used the photos of others,

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gave duplicate names, used fake mobile SIM cards, fake passports, identity cards to hide their identity and made others to believe that the xerox copies are the originals and cheated the people. The accused also used vehicles of others for their illegal activities.

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It is further case of the prosecution that, on 03.10.2008, CW1-Venkatesh Prasanna, the Police Inspector of District Crime Investigation Bureau (DCIB), Mangaluru, at about 10.30 a.m., with his subordinate officials, on getting authenticated information, raided the houses of accused No.3-Mohammad Ali, accused No.4-Javed Ali and accused No.7-Riyaz Bhatkal at Mukkacherry, Chembugudde, Ullal and the house of accused No.1Sayyed Mohammed Naushad at Subash Nagar of Pandeshwar. The accused were found in unlawful assembly. C.W.81-Jayanth Shetty took accused No.1 to the rented house of accused No.7- Riyaz Bhatkal, the founder of SIMI and Indian Muzahiddin Organization and seized the articles including explosives. The accused Nos. 2 to 6 who had participated in many other bomb blast cases, were

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found in unlawful possession of literary books of Jihad, pamplets, CD, DVD, VCD, laptop, computer, pen drive, mobile, fake SIMS etc. All the accused persons participated in the unlawful activities, conducted unlawful assemblies and formed illegal association at various places of Uttar Kannada and D.K District. They had the common intention to cause disturbance and to spoil the peace of Nation and had the intention to bring the fear of terrorism and communal clash between the people in the Nation. The accused persons had many accounts in different banks and financial institutions and were transacting through Savings Accounts. The accused persons, in prosecution of their common object, hatched criminal conspiracy and planned to cause havoc in the Nation, and with an intention to make bomb blast in order to cause death of people and also to cause damage to public properties, transported the materials like timers, gelatin and circuits for manufacturing explosives, to various places like Ahmedabad, Gujarath, Surath, Pune, Mumbai, Delhi etc., The accused being the members of terrorist organizations, made unlawful assemblies at various places.

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It is further case of the prosecution that, accused Nos.1 to 6, 8 to 13 were the members of Indian Muzahiddin Organization and accused No.7 is the founder of the said organization and all of them with a common object, committed unlawful activities in the houses of accused Nos.1, 3 and 4 situated at Mukkachery and Chembugudde of Ullal Village, Mangaluru Taluk and Subhash Nagar of Pandeshwar. The accused Nos.1 to 4, 7 to 13, in order to commit revolt and terror acts, practiced target with arrow and bow at Hakkalumane of N.R.Pura Taluk and organized unlawful meetings at Vittalmakki of Koppa Taluk, Chikmagaluru District. The accused No.2-Ahamad Bava Aboobakkar was found in illegal possession of explosives and explosive substances in his house at Haleangady of Mangaluru Taluk. All the accused persons conspired to wage war against the Government of India to deprive the Central Government or the State of Gujarat and also sovereignty of the Indian Republic. The accused persons conspired to overawe by means of criminal force, the Government of India, collected ammunitions, instigated people

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with an intention to wage war against the Government of India. The accused with a common object, concealed the existence of such design and possessed such materials of preparing explosives with an intention to waging war, promoted feelings of enmity between the people of republic of India.

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The accused Nos.1, 3 and 4 knowing fully well that the accused Nos.2, 7 to 13 are terrorists, allowed them to conduct unlawful activities and to discuss about the terrorism for causing terror, contacted the persons involved in the bomb blasts took at Delhi, Surath, Ahmedabad, Mumbai and Poona. The accused Nos.3 and 4 also arranged for discussion and meeting about causing disturbance in the Nation. Accused No.1 allowed the other accused inside his house, rented houses of accused No.7, accused No.9 and accused Nos.3 and 4, helped to make discussion with the persons involved in the bomb blasts took in the above mentioned places, on more than 100 occasions.

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It is further case of the prosecution that, Accused No.6 being the resident of Uchila of Udupi District since 2007, had

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contact with accused Nos.1, 2, 7 to 12 allowed them to make use of the land at Hakkalumane standing in the name of one Smt.Johra Rehaman, D/o Beary, for unlawful activities. The said accused Nos.1, 2, 7 to 12 used to manufacture bombs, test and practice the target. They did not vacate the premises even though the owner of the house after coming to know their unlawful activities, asked them to vacate. Later, accused No.6 allowed them to make use of his land at Vittalmakki in Koppa Taluk to carry unlawful activities inspite of knowing that they are the terrorists. Accused No.5 was made to help them in their daily activities and he was appointed to look after their activities.

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The accused Nos.1, 3 to 6 and 9 knowing fully well that the accused Nos.2, 7, 8, 10 to 13 are terrorists, harboured them to commit unlawful activities. All the accused persons being the members of banned SIMI and Indian Muzahiddin Organization, with a common object of terrorism and revolt in different places, hid their identity and used fake identity cards, mobile SIM cards possessed xerox copies of fake passports, election identity cards

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of students of P.A. Engineering College, Mangaluru, and with dishonest intention, induced the persons to believe the fake documents as originals and cheated the public.

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It is further case of the prosecution that, on 16.10.2008, PW-1 received information about accused Nos.5 and 6 that the accused No.5-Mohammad Rafiq who was helping the terrorist was available at Bolanthur. He made due search and at about 7.00 p.m., arrested him at Bolanthur. Thereafter, accused No.6 who gave his house at Vittalmakki to the terrorist for making use of the same was taken into custody on the same day 8.30 p.m., from Malur, Udupi District. On the same day, he had prepared a detailed report and produced both the accused Nos. 5 and 6 with the said report before the Investigating Officer.

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After receipt of the information, the jurisdictional police registered a criminal case against the accused persons for the offences punishable under Sections 10, 11, 13, 16, 17, 18, 19, 20, 21 of the Unlawful Activities (Prevention) Act, 1967, Sections 120B, 121A, 122, 123, 153A, 212, 420, 468, 471 of the Indian

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Penal Code, Section 9(B) of Explosives Act, 1884 read with Sections 5 and 6 of Explosive Substances Act, 1909 and Sections 3 and 25 of Indian Arms Act.

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After investigation, the jurisdictional police filed the charge sheet against all the accused persons. Split up charge was filed against accused Nos.7 to 12. The JMFC-III, Mangaluru, took cognizance of the offence and registered the case in C.C.No.4857/2008. After committal of the case to the Sessions Court, Mangaluru, the case was registered in S.C.No.60/2009. The learned Sessions Judge, took cognizance of the offence and framed common charges against accused Nos.1 to 13. Charge was read over and explained to the accused persons in the language known to them, who pleaded not guilty and claimed to be tried.

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In order to prove the case of the prosecution, in all 62 witnesses were examined as P.Ws.1 to 62, and marked the documents Exs.P.1 to P.122 and Material Objects 1 to 157. On behalf of the defendants, D.Ws.1 to 6 were examined and

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documents Exs.D.1 to D.4 were marked. The public prosecutor gave up C.Ws.3, 8, 15, 24, 26, 59 to 73, 76, 77 and 79. C.W.40 was reported to be dead. After completion of the evidence of prosecution witnesses, the statement of the accused Nos.1 to 6 and 13 was recorded as contemplated under Section 313 of the Code of Criminal Procedure. The accused Nos.1, 3, 6 and 6 filed their statements under Section 313(5) of the Code of Criminal Procedure. In support of their defence evidence, the witness for accused Nos.1 and 2 was examined as D.W.1. The witnesses for accused Nos.5 And 6 were examined as D.Ws.2 to 4 and 6. The accused No.3 examined himself as D.W.5.

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Based on the aforesaid material on record, the Trial Court formulated the following points for consideration:-

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1) Whether the prosecution is able to prove that the proper sanction obtained from competent Authority to prosecute against accused Nos.1 to 6 and 13 for the offences punishable under Sections 10, 11, 13, 18, 19 of Unlawful Activities (Prevention) Act, Section 5 and 6 of the Explosive Substances Act, 1908, Section

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9B (1) (b) of Explosives Act and Sections 3 and 25 of Arms Act?

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2) Whether the prosecution is able to prove that accused Nos.1 to 6 and 13 with absconding accused Nos.7 to 12, were the members of banned unlawful association namely Indian Muzahiddin Organizaton, involved in the offence of unlawful activities and committed the offence under Section 10, 11, 13, 15, 16, 17, 18, 19, 20 and 21 of the Unlawful Activities (Prevention) Act?

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3) Whether the prosecution is able to prove that accused Nos. 1 to 6 and 13 with absconding accused Nos.7 to 12, were parted to criminal conspiracy to wage war against Government of India and committed offence punishable under Section 120B, 121A, 122 and 153A of IPC?

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4) Whether the prosecution is able to prove that the accused No.1 found in possession of explosives and materials for manufacturing bombs in his house at Subhassh Nagar and accused No.2 found in possession of explosives both at his house situated in Haleangady and also he was residing at Hakkalumane and Vittalmakki of Chikmagaluru District, found in

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possession of explosives and both of them have committed the offence punishable under Section 5 and 6 of the Explosive Substances Act and Section 9B (1) (b) of Explosives Act?

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5) Whether the prosecution is able to prove that the accused Nos. 3 and 4 conducted meeting held at Jolly Beach and gave protection to absconding accused Nos.7, 8 and 11 in their house for illegal activities and also found in possession of DVDs relating to Terrorist Activities?

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6) Whether the prosecution is able to prove that accused No.2 with absconding accused Nos.7, 8, 10, 11 and 12 to reside in the house of accused No.6 at Hakkalumane and Vittalmakki of Chikmagaluru District and allowed them in preparing and testing explosives and used fire arms and committed the offence under Section 5 and 6 of the Explosive Substances Act and Section 9B (1) (b) of Explosives Act and Section 5 and 25 of the Arms Act?

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7) Whether the prosecution is able to prove that accused No.6 has allowed accused No.2 and absconding accused Nos.7, 8, 10, 11 to reside in his house at Hakkalumane and supported their illegal

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activities of bomb blast, test of explosives, target practice and knowing fully well their illegal activities, brought them to his land at Vittalmakki of Koppa Taluk, Chikmagaluru District?

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8) Whether the prosecution is able to prove that accused Nos. 1 to 4, 6 and 13 met accused No.5 to cooperate with their illegal activities and concealed them with intention to screening them from legal punishment and used fake passports, identity cards in order to cheat the public and committed the offence under Section 420, 468, 471 read with Section 149 of IPC?

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9) Whether the prosecution is able to prove that accused Nos. 1 to 6 and 13 with absconding accused Nos.7 to 12, participated in the terrorist activities and unlawfully possessed with explosive substances, improvised explosive device and have kept their identity in secret by using fake names with common object conspired to wage war against Nation and used the explosives, conducted testing of bombs and possessed fire arms in order to disturb the security of India and create terror and insecurity in the mind of common people and committed offence punishable under Section 10, 11, 13, 16, 17, 18, 19, 20, 21

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of Unlawful Activities (Prevention) Act, Section 120B, 121A, 122, 123, 153A, 212, 420, 468, 471 of IPC, Section 9B(1)(b) of the Explosives Act, Section 5A and 6 of Explosive Substances Act, 1908, Section 3 and 25 of the Arms Act, 1959 and Section 143, 147, 148 read with Section 149 of IPC?

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Considering both oral and documentary evidence on record, the learned Sessions Judge recorded the finding that the prosecution proved that proper sanction is obtained from the competent Authority to prosecute against accused Nos.1 to 6 and 13 for the offences punishable under Sections 10, 11, 13, 18, 19 of Unlawful Activities (Prevention) Act, Sections 5 and 6 of the Explosives Substances Act, 1908, Section 9B(1)(b) of Explosives Act and Section 3 and 25 of Arms Act. The second point was answered partly in the affirmative holding that the prosecution proved that accused Nos.1 to 6 and 13 with absconding accused Nos.7 to 12, were the members of banned unlawful association namely Indian Muzahiddin Organization, involved in the offence of unlawful activities and committed the offence under Sections 10, 11, 13, 15, 16, 17, 18, 19, 20 and 21 of the Unlawful Activities

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(Prevention) Act. The third point was answered partly in the affirmative holding that the prosecution proved that accused Nos.1 to 6 and 13 with absconding accused Nos.7 to 12, parted to criminal conspiracy to wage war against Government of India and committed offences punishable under Sections 120B, 121A, 122 and 153A of the Indian Penal Code. The fourth point was answered in the affirmative holding that the prosecution was able to prove that the accused No.1 was found in possession of explosives and materials used for manufacturing bombs in his house at Subhash Nagar and accused No.2 was found in possession of explosives both at his house situated in Haleangady and at Hakkalumane and Vittalmakki of Chikmagaluru District, found in possession of explosives and both of them have committed the offences punishable under Sections 5 and 6 of the Explosives Substances Act and Section 9B(1)(b) of the Explosives Act, 1884. The learned Sessions Judge answered the fifth point in the negative holding that the prosecution failed to prove that the accused Nos.3 and 4 conducted meeting held at Jolly Beach and gave protection to absconding accused Nos.7, 8 and 11 in their

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house for illegal activities and also found in possession of DVDs relating to Terrorist Activities? The point Nos.6 and 7 were answered in the affirmative holding that the prosecution was able to prove that accused No.2 with absconding accused Nos.7, 8, 10, 11 and 12 to resided in the house of accused No.6 at Hakkalumane and Vittalmakki of Chikmagaluru District and allowed them in preparing and testing explosives and used fire arms and committed the offence under Sections 5 and 6 of the Explosive Substances Act and Section 9B(1)(b) of the Explosives Act, 1884 and Sections 5 and 25 of the Arms Act and that the prosecution was able to prove that accused No.6 allowed accused No.2 and absconding accused Nos.7, 8, 10, 11 to reside in his house at Hakkalumane and supported their illegal activities of bomb blast, test of explosives, target practice and knowing fully well their illegal activities, brought them to his land at Vittalmakki of Koppa Taluk, Chikmagaluru District. With regard to point No.8, it was recorded that the prosecution failed to prove that accused Nos.1 to 4, 6 and 13 met accused No.5 to co-operate with their illegal activities and concealed them with an intention of screening

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them from legal punishment and used fake passports, identity cards in order to cheat the public and committed the offences punishable under Sections 420, 468, 471 read with Section 149 of IPC. Accordingly, point No.9 was answered partly in the affirmative holding that prosecution proved that accused Nos. 1 to 6 and 13 with absconding accused Nos.7 to 12, participated in the terrorist activities and unlawfully possessed with explosive substances, improvised explosive device and have kept their identity in secret by using fake names with common object conspired to wage war against Nation and used the explosives, conducted testing of bombs and possessed fire arms in order to disturb the security of India and create terror and insecurity in the mind of common people and committed offence punishable under Sections 10, 11, 13, 16, 17, 18, 19, 20, 21 of Unlawful Activities (Prevention) Act, Sections 120B, 121A, 122, 123, 153A, 212, 420, 468, 471 of the Indian Penal Code, Section 9B(1)(b) of the Explosives Act, 1884, Sections 5A and 6 of Explosive Substances Act, 1908, Sections 3 and 25 of the Arms Act, 1959 and Section 143, 147, 148 read with Section 149 of the Indian Penal Code.

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Thereby, the learned Sessions Judge proceeded to pass the impugned judgment of conviction and order of sentence against accused Nos.1, 2 and 6 and acquitted the accused Nos.3, 4, 5 and 13 of the Charges made against them. The State Government has not filed any appeal challenging the Order of acquittal of accused Nos.3, 4, 5 and 13.

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We have heard the learned counsel for the parties.

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II ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR APPELLANTS

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Sri.Tomy Sebastian, learned Senior Counsel for the Accused No.1 along with Sri.Melanie Sebastian in Criminal Appeal No.1206/2017 contended with vehemence that there is no sanction under the provisions of Section 45 of the Unlawful Activities (Prevention) Act ('UAP Act' for short), therefore, conviction of Accused Nos.1 and 2 under the provisions of the said Act is bad. The investigation made by the Sub-Inspector is contrary to the provisions of Section 45 of the UAP Act. The said provision makes it clear that officer not below the rank of Deputy

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Superintendent/Assistant Commissioner of Police has to investigate the case. He further submits that Section 17 of UAP Act came into force with effect from 01.02.2013. On the date of the incident, i.e., 03.10.2008 and date of filing of charge sheet, i.e., 31.12.2008, the said section was not at all in force. Therefore, the conviction cannot be sustained against the Accused Nos.1 and 2. He further contended that the provisions of Section 18 of UAP Act came into force on 31.12.2008 at midnight, but the chargesheet is filed on 31.12.2008 at about 4.45 p.m. Therefore, the conviction of the accused under the provisions of Section 18 of the UAP Act is bad. He would further contend that under Ex.P.87, sanction by the Deputy Commissioner, i.e., P.W.55 on 31.12.2008 under Explosive Substances Act was not a speaking order. Absolutely there is no independent application of mind.

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Elaborating first question of law, learned senior counsel contended that the sanction order dated 31.12.2008 under Section 196 of Cr.P.C., is only for the IPC clause and not under the provisions of UAP Act. The provisions of Section 45 of

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the UAP Act pertains to Chapter III, i.e., Sections 10 to 14 of the UAP Act.

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Sections 45(ii) contemplates that no Court shall take cognizance of any offence 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.

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Chapter IV contains the provisions of Sections 15, 16, 17, 18, 20, 21, 22 and 23. Sub-section (ii) of Section 45 came into effect on 31.12.2008, which would clearly depict that sanction for prosecution under sub-section (i) shall be given within time as has been prescribed only after considering the report of such authority appointed by the Central Government or as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of the investigation and make a recommendation till such time as may be prescribed

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by the Central Government or as the case may be, the State Government.

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He also invited attention of the Court with regard to the definition of the word 'designated authority' under Section 2(e) the Unlawful Activities (Prevention) Act, 1967, means such officer of the Central Government not below the rank of Joint Secretary to that Government, or such officer of the State Government not below the rank of Secretary to that Government, as the case may be, as may be specified by the Central Government or the State Government, by notification published in the Official Gazette. He also referred to definition of 'authority' under Rule 2(b), of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008, means the Authority to be appointed by the Central Government [or, as the case may be, the State Government] under subsection (2) of section 45. He refers to Rule 3 of the Rules of the said Rules, which reads as under:

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"3. Time limit for making a recommendation by the Authority .- The Authority shall, under sub-section

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(2) of Section 45 of the Act, make its report containing the recommendations to the Central Government (or, as the case may be, the State Government) within seven working days of the receipt of the evidence gathered by the investigating officer under the Code."

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Rule 3 of the said Rules contemplates the time-limit for making a recommendation by the authority - The authority shall under sub-section (2) of Section 45 of the Act, make its report containing the recommendations to the Central Government (or the State Government as the case may be) within seven working days of the receipt of evidence gathered by the Investigating Officer. Rule 4 of the said Rules contemplates that the Central Government [or, as the case may be, the State Government] shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority. Thereby, he would contend that even assuming the sanction order issued by the Under Secretary under the provisions of Sections 1 and 6 of the Code of Criminal Procedure, and in the absence of any specific sanction order under the provisions of

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Section 45(ii) of the Act, the authorities may register the case and investigate under the provisions of Sections 15, 16, 17 and 18 of the Act, conviction cannot be made.

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In support of his contentions, learned Senior Counsel relied upon the dictum of the co-ordinate Bench of this Court in the case of MOHAMMED RAZUL vs. STATE GOVERNMENT dated 10th May 2016 in Criminal Appeal No.220/2012, wherein this Court held that Secretary to the Government is the competent authority to issue sanction. Admittedly, in the present case, no such sanction is produced under the provisions of Section 45 of the UAP Act. He also relied upon the dictum of the Hon'ble Supreme Court in the case of Umarmia @ Mamumia vs. State of Gujarat reported in 2012(11) SCC 606 , Paragraphs 26 and 46 with regard to taking cognizance of the offences without previous sanction of the concerned authority as mentioned under Section 45 of the UAP Act. He would further contend that Section 43(c) of the UAP Act contemplates that, no police office, in any case not relatable to clause (a) or clause (b), below the rank of a

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Deputy Superintendent of Police or a police officer of an equivalent rank, shall investigate any offence punishable under Chapter IV or Chapter VI. Admittedly, Section 43(a) came into force in the midnight of 31.12.2008. As stated supra, in the present case, the charge sheet is filed on 31.12.2008 at 4.45 p.m. He would further contend that P.W.1 who had drawn mahazarEx.P1 dated 03.10.2008, Ex.P2 seizure mahazar dated 03.10.2008 and Ex.P3-seizure mahazar dated 03.10.2008 and Ex.P6-seizure mahazar dated 03.10.2008 deposed that he obtained permission from P.W.62-Jayanth Shetty, Dy.S.P. But P.W.62 never whispers anything about the permission granted by him to P.W.1 who investigated the case from 16.12.2008. Thereby, under Section 43A, other than Dy.S.P, no other person is permitted to carry out investigation, including P.W.1. Thereby, the very punishment imposed under the UAP Act against Accused Nos.1 and 2 cannot be sustained. He would further contend that the provisions of Section 17 came into force only with effect from 01.02.2013. The date of the incident is 03.10.2008 and the charge sheet is filed on 31.12.2008 at 4.45 p.m., when the said section was not in force.

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Therefore, the very charge sheet filed is fatal to the case of the prosecution and thereby, no conviction can be granted. He would further contend that Section 43A of the UAP Act came into effect on the midnight on 31.12.2008 and therefore charge sheet would not be sustainable and is liable to be set aside. He would further contend that under the Explosive Substances Act, 1908, the Deputy Commissioner-P.W.55 recovered five bombs from the house of Accused No.7 at his instance under Ex.P.2, Ex.P13Mahazar drawn on 07.10.2008 at the instance of Accused No.6 and recovered M.O.51-Tata Black Oxide, M.O.69-glycerin bottle containing liquid, M.O.71-Air Gun, M.O.74-sealed bottle containing white powder and M.O.88-bottle containing white powder. Ex.P31-mahazar dated 21.12.2008 was drawn at the instance of Accused Nos.1 and 6, and mobile phone-M.O.13 was recovered. ExP38-mahazar dated 21.12.2008 was drawn at the instance of Accused No.2 and recovered M.O.155- 20 gelatin sticks, M.O.15619 detonators of 2" length connected with LEG wire, M.O.157 containing four timers. Even assuming that the sanction was granted, all these materials are not disclosed in the sanction

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order. He would further contend that Ex.P.83-certificate of examination issued by P.W.52 wherein under Ex.P2-seizure mahazar dated 03.10.2008, five bombs are recovered, but under Ex.P6 seizure mahazar dated 03.10.2008, there is no mention of any explosive recovered from Accused Nos.1 and 2. He would further contend that Ex.P.85-certificate of examination issued by P.W.54, an expert opined that Article No.1 is not a firearm. Thereby, provisions of Section 25(A) of the Arms Act would not attract. He also invited the attention of the Court to the definition of Section 2(e) of the Arms Act, which reads as under:

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"2(e) "firearms" means arms of any description designed or adaparted to discharge a projectile or projectiles of any kind by the action of any explosive or other forms of energy, and includes,-

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(i) artillery, ahnd-grenades, riot-pistols or weapons of any kind designed or adapted for the discharge of any noxious liquid, gas or other such things,

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(ii) accessories for any such firearm designed or adapted to diminish the noise or flash caused by the firing thereof,

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(iii) parts of, and machinery for manufacturing, firearms, and

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(iv) carriages, platforms and appliances for mounting, transporting and serving artillery."

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Learned counsel further submitted that Ex.P.90certificate of examination was issued by P.W.58 in respect of Accused Nos.1 and 2, and 20 gelatin sticks was marked as M.O.155, 19 live electrical detonators of length connected with leg were marked as M.O.156, and 4 aluminum coloured timers of KADIO company were marked as M.O.157. While reading the evidence of P.W.8, he would contend that the charge is framed against the Accused Nos.1 and 2, but no oral or documentary evidence is produced to prove the charge against Accused Nos.1 and 2. Therefore, he would contend that conviction made by the learned Sessions Judge against the unknown persons cannot be

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sustained. He would further contend that Charge No.11 framed by the learned Sessions Judge is under Section 5(a) of the Explosive Substances Act, 1908 against the Accused Nos.1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12 and 13, but, the punishment imposed by the learned Sessions Judge is under Section 5(b) of the said Act, and the same is not permissible. He contended that the punishment for the offence under Section 5(a) of the Act is imprisonment which may extend to ten years and also fine, but Section 5(b) of the said Act now invoked by the learned Sessions Judge contemplates with rigorous imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and with fine, which is impermissible. Thereby learned counsel gave an example that, if the confession is made by any accused based on the evidence and material on record can be arrived and converted into Sections 304(1) or Section 304(2) of IPC depending upon the facts of the case, but it may not be vice versa. If the very charge is under the provisions of Section 304(2), accused cannot be convicted with life-imprisonment which is a major section. He would further contend that the firearms

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seized under Ex.P2-mahazar depicts that M.O.12 to M.O.21mobile phones and not bombs. The bombs were found in the possession of Accused No.7 against whom a split up charge sheet is filed and there is nothing against Accused Nos.1, 2, 3 and 6. M.O.131-six timers recovered at the residence of Accused No.1's father. Therefore, he would contend that absolutely there is no case made out by the prosecution against the Accused No.1. Therefore, sought to allow the appeal.

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Sri.C.H.Jadhav, learned senior counsel along with Sri.Chethan Jadhav for Appellant No.2/Accused No.2 in Criminal Appeal No.1206/2017 while adopting the arguments advanced by Sri Tomy Sebastian, learned senior counsel for appellant No.1/accused No.1 in the said appeal, would contend that absolutely there is no material against Appellant No.2 except the fact that Appellant No.2 was found in the house of Appellant No.1 at 3.00 p.m., on 03.10.2008. No recovery was made at the instance of Accused No.2. the presence of accused No.2 in the

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house of Accused No.1 cannot be a ground to convict Accused No.2.

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Learned senior counsel further contended that P.W.1 received credible information at about 4.00 a.m., on 03.10.2008, went to the house of Accused No.3 and then, went to the house of Accused No.1 and found Accused No.2 also in the house of Accused No.1. He would further contend that P.W.1 even before registration of the case, arrested Accused Nos.3 and 4, seized material objects which is against the provisions of Section 151 of the Code of Criminal Procedure, relied upon the dictum of Hon'ble Supreme Court in Lalita Kumari vs. Government of UP and others reported in AIR 2014 SC 187 . He would further contend that P.W.61-PSI took up the investigation and on 04.10.2008, P.W.1-Inspector enquired Accused No.2 and went to Vittala Makka village on 06.10.2008. P.W.1-Panch witness seized Arabic and Urdu Books marked as F-9 and 10 and C.Ds in motor-vehicle and conducted mahazar-Ex.P22. None of the material seized are incriminating material against Accused No.2 and he was arrested on 03.06.2010 and seizure was made on 06.10.2008, which is not

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permissible. He further contended that P.W.22-Dy.S.P, Pavankumar took up the investigation only on 06.10.2008.

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Be that as it may, accused Nos.1 to 6 are already arrested, interrogated and taken to police custody and after the lapse of two and a half months, the voluntary statement of Accused No.2 was recorded on 20.12.2008 under Ex.P.113 which is impermissible. Thereby, the conviction against Accused No.2 cannot be sustained. He would further contend that M.Os.155 to 157 were recovered under Ex.P.38-mahazar at the instance of P.Ws.20 to 23-witnesses who turned hostile. Delay of two and half months in recording voluntary statement and recovery is not explained. Therefore, recovery of M.Os.155 to 157 is doubtful. He would further contend that P.W.27-shop keeper has not identified Accused No.2. P.W.31-contractor turned hostile to the case of the prosecution. P.W.32-Writer of the coffee estate has deposed that he has seen the Accused No.2 nearby coffee estate, is not trustworthy to accept his evidence. Therefore, present Criminal Appeal is filed by Accused No.2.

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Sri Bharath Kumar, learned counsel for

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appellant/Accused No.6 in Criminal Appeal No.820/2017 would contend that the Accused No.6 is a post-graduate worked in Indonesia from 10.09.2007 to 17.09.2008 and came to India only to attend his brother's daughter's wedding to be held in the month of October 2008. The charge sheet was filed against Accused Nos.1 to 13 and split up charge sheet was filed against Accused Nos.7 to 12. He would further contend that either Accused No.5 or Accused No.6 are members of any gang, but only facilitators as alleged by the prosecution and absolutely, there is no material against Accused No.6. He would further contend that Accused No.5 was in-charge of estate owned by P.W.25 and his family. It is alleged against Accused No.5 that knowing fully well that the Accused Nos.7 to 12 target practice, involved Accused No.6 who was not aware of the same. He would further contend that Accused No.5 is the owner of Akkal Mane estate neither recognized by Accused No.6 nor he was cross-examined by the prosecution. P.Ws.26 to 32 are the neighbours, they have not

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stated about Accused No.6's involvement along with Accused Nos.1 to 3 and 4. He would further contend that the evidence of P.Ws.30 and 32 assumed importance, but they have never stated anything against Accused No.6.

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Learned counsel strongly contended that two mahazars, one under Ex.P.13 drawn on 07.10.2008 and another mahazar at Ex.P.22 drawn on 06.10.2008 were conducted at the place of occurrence at the instance of panch witnesses. At the instance of Accused No.6, M.Os.51 to 88 were seized. P.Ws.3 and 4-taxi driver and relatives of Accused No.6-GPA Holder had inducted Accused Nos.7 to 11 who were made as complainants under Ex.P.24 and they were not aware of anything about the Accused Nos.7 to 11 against whom split up charge sheets are filed. He would further contend that Accused No.6 submitted his defence under the provisions of Section 230(2) of the Indian Penal Code on 01.02.2017. The same was considered by the learned Sessions Judge in paragraphs 152 and 157 of the Judgment, but proceeded to ignore the same. Thereby, erroneously convicted

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the Accused No.6 without there being any oral and documentary evidence on record. He further contended that there are no eyewitnesses or any material available which depicts involvement of Accused No.6.

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III ARGUMENTS ADVANCED BY THE LEARNED SPP FOR THE STATE

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Per contra, Sri Kiran S. Javali, learned SPP-I along with Sri Vijaykumar Majage, learned Additional SPP for the respondent, while justifying the impugned judgment of conviction and order of sentence passed by the learned Sessions Judge, contended that the accused Nos.1, 2 and 6 are involved in the offence punishable not only under the Indian Penal Code, but also under the provisions of Unlawful Activities (Prevention) Act, 1967, Explosives Act, 1884, The Explosive Substances Act, 1908 and the Arms Act, 1959. The accused are involved in various illegal activities with an intention to wage war against India. They were involved in preparing bombs and explosives so as to destroy the peace in the country. Thereby he contended that the learned Sessions Judge is justified in convicting the appellants. He fairly

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submits that the learned Sessions Judge rightly acquitted accused Nos.3, 4, 5 and 13 since the prosecution was not able to prove the Charges levelled against them and the State has not filed any Appeal against the Order of acquittal.

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When specific question was posed to learned SPP-I with regard to the sanction granted by the State Government under the provisions of Section 196 of the Code of Criminal Procedure, whether it applies to all the provisions of Unlawful Activities (Prevention) Act, 1967 and other provisions, he fairly submits that there is a specific provision under Unlawful Activities (Prevention) Act, 1967, sanction has to be taken. Accordingly he produced the original records and original noting to show the issuance of notification dated 30.12.2008 issued by the State Government under the provisions of Section 196 of the Code of Criminal Procedure.

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A careful perusal of the Note, at No.1, page 112.1, it is clear that on the basis of the requisition made by the DGP, notification came to be issued on 30.12.2008 to proceed against

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accused Nos.1 to 13. Thereby, he sought to dismiss the Criminal Appeals.

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IV POINTS FOR DETERMINATION

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In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in the present Criminal Appeals are:

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i) Whether the trial Court is justified in convicting and sentencing the Accused Nos.1, 2 and 6 for the offences punishable under the provisions of Sections 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967; Section 5(b) of the Explosive Substances Act, 1908; Section 120B r/w Section 149 of IPC and Sections 3 and 25(1AA) of the Arms Act, 1959 and further Accused No.1 for the offences punishable under Sections 420, 468, 471 of IPC and Accused No.6 for the offence punishable under Section 6 of the Explosive Substances Act, 1908 ?

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ii) Whether the trial Court is justified in convicting and sentencing the Accused Nos.1, 2 and 6 for the offence punishable under the provisions of Section 9B(1)(b) of the Explosives Act, 1884 ?

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V. CONSIDERATION

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In order to re-appreciate the entire material on record,

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it is relevant to consider the oral and documentary evidence on record.

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(i) P.W.1-H.N.Venkatesh Prasanna, Police Inspector, District Crime Investigating Bureau, deposed that, upon receiving credible information, he obtained oral permission from his higher officials to conduct raid and arrest accused Nos.1 to 4 on 03.10.2008. He deposed about going to the house of accused Nos.3 and 4 and seizing M.Os.1 to 11 under mahazar-Ex.P.1 and also arresting accused Nos.3 and 4. Same day he seized M.Os.12 to 21 under mahazar Ex.P.2 in the house of accused No.7 and also seized five live bombs marked as M.Os.144 to 154. The witness further deposed regarding seizure of 11 items under the mahazarEx.P.3 in the house of accused Nos.1 and 2, seizure of M.Os.25 to 50 from the house of accused No.9 under mahazar-Ex.P.6. He further deposed that he produced accused Nos.1 to 4 before P.W.60-Chandrashekar with a report in the form of complaint-Ex.P.9, seizure mahazars (Exs.P.1, 2, 3 and 6) along with seized articles M.Os.1 to 50. He further deposed that on 16.10.2008, he arrested accused No.5 at 7.00 pm at

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Bolanthur and accused No.6 at 8.30 pm from Malur, Udupi District. On the same day, he produced them along with the report before the Investigating Officer, marked as Ex.P.10, and supported the prosecution case.

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(ii) P.W.2-Arun Kumar, panch witness to mahazar Exs.P.1 and P.2 deposed about going to the house of accused Nos.3 and 4 along with the police and P.W.3 and about seizure of M.Os.1 to 11. He also deposed about going to the house where accused No.7 was residing and regarding seizure of M.Os.12 to 21 and five live bombs. His signature was marked as Ex.P.1(b) and Ex.P.2(b). The witness supported the case of the prosecution.

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(iii) P.W.3-Rohith Kotian, panch witness to mahazars Exs.P.1 and 2 deposed regarding going to the house of accused Nos.3 and 4 along with police and P.W.2 and about seizure of M.Os.1 to 11. He also deposed about going to the house where Accused No.7 was residing and about seizure of M.Os.12 to 21 and five live bombs. His signature was marked as Ex.P.1(c) and Ex.P.2(c), respectively. He supported the case of the prosecution.

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(iv) P.W.4-Surendra Pandeshwar, owner of the property No.4-105:26, wherein the first floor was occupied by accused No.7, deposed regarding accused No.1 approaching him for securing the house for rent for accused No.7 and also speaks about the lease entered into by accused No.9 and it was signed by accused No.1 on behalf of accused No.9. He also deposed regarding accused No.1 often visiting the house of accused No.7. He identified accused No.1. The witness deposed about police coming to the house of accused No.7 and seizure of M.Os.12 to 21 and five live bombs and handing over the lease deed to police marked as Ex.P.12, and supported the case of the prosecution.

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(v) P.W.5-Sharath Kumar, witness mahazar to Exs.P.3, 6, 13 and 14 under which M.Os.22 to 24, 25 to 88 and 89 to 129 were seized, deposed that, he along with police and P.W.6 went to the house of accused No.1 at Subhasnagar and arrested accused Nos.1 and 2 and seized M.Os.22 to 24 and also bike of accused No.1 bearing No.KA-19/R-7171. His signature was marked as Ex.P.3(b). He also deposed about seizure of M.Os.25 to 50 in the house of accused No.9 and going to the house of accused Nos.5 and 6 and

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seizure of M.Os.51 to 88 and 89 to 129 and supported the prosecution case.

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(vi) P.W.6-Vivek Prabhu, witness to mahazars Exs.P.3 and 6 deposed that he along with police and P.W.5 went to the house of accused No.1 at Subhash Nagar and that accused Nos.1 and 2 were arrested. He deposed regarding seizure of M.Os.22 to 24 and bike of the accused bearing No.KA-19/R-7171. His signature was marked as Ex.P.3(c). He further deposed regarding seizure of M.Os.25 to 50 at the house of accused No.9. The witness supported the case of the prosecution.

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(vii) P.W.7-Abdul Rahiman, deposed that accused Nos.1 and 9 used to come to his garage for repair of the car and that accused No.1 had called his partner saying that the battery of the car is down and told his partner that the car is stationed in front of the house of accused No.1 at Subhash Nagar and that his partner took the battery from the garage and installed the battery and got the car to the garage stating that there is an issue with the power steering. In the cross-examination, he deposed that he has not stated in his statement that accused-Mudassar Yasin came to

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garage in a motorcycle and called him to his house since the battery of the car was down.

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(viii) P.W.8-Rehamathulla, witness to mahazar Ex.P.15 for seizure of car belonging to accused No.9Mudasir Yassin.

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(ix) P.W.9-Shrikanth, is the tenant in the ground floor of the property belonging to P.W.4. He deposed about the first floor being occupied by accused No.7 and his family and about the visit of accused Nos.1 and 3 to the first floor of the said house.

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(x) P.W.10-Srinath, is the tenant in the ground floor of property belonging to P.W.4. He deposed about the first floor being occupied by accused No.7 and his family members and about the visits of accused Nos.1 and 3 to the first floor of the said house.

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(xi) P.W.11-Dinesh, panch witness to mahazar Ex.P.22, wherein Sale Deed, GPA and other 4 documents, which were damaged, were seized. He deposed about going to the house belonging to accused No.6, in which accused No.2 is said to be residing and seizure of Exs.P.23 and 24 and supported the case of the prosecution.

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(xii) P.W.12-Abdul Sathar, owner of the canteen deposed that he was running a canteen at the site situated at Chembugudai and also deposed about accused No.1-Naushad, accused No.9-Mudassar and accused No.3-Mohammed Ali visiting the site after Ahamed came as site engineer in place of Mustaquee and supported the case of the prosecution.

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(xiii) P.W.13-Abdul Bukari, who was supplying materials from 2006 to 2008 to the site situated at Chembugudai deposed that initially Sri. Mustaq issued to pay him and thereafter accused No.9- Mudassar Yasin used to pay him the money and also deposed that he knows accused No.1 and that the police have not recorded his statement.

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(xiv) P.W.14-Salman, Labour Contractor deposed that he was doing layout work at Chembugudai and the site owner Ramdhariyani was making payments to him and thereafter, Mudassar Yasin was making payments to him. Since there was difference in the site plan, he stopped working at the site. He also deposed about Ahmed coming as site engineer and accused No.1 as contractor and P.W.24-Balakrishna being the Supervisor and supported the case of the prosecution.

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(xv) P.W.15-Ashwin, witness mahazars to Exs.P.13 and 14, wherein M.Os.51 to 88 and 89 to 129 were seized.

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(xvi) P.W.16-Eliyas, who deposed about entering into an Agreement of Sale with accused No.1-Naushad for the sale of his property for a sale consideration of Rs.13,00,000/-. The said mahazar is marked as Ex.P.30 and the advance amount of Rs.8,37,500/received under the Sale Agreement is marked as M.O.130 and supported the case of the prosecution.

¶246

(xvii) P.W.17-Avinash, is the mahazar witness to Ex.P.30. He deposed about going to Ullal Police Station and signing the mahazar. He does not identify accused No.1.

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(xviii) P.W.18-Arun.V, is the mahazar witness to Ex.P.30. He deposed about accused No.1 going along with police to the house of P.W.16. He also deposed about P.W.16 coming to the police station and handing over a sum of Rs.8,37,500/- to accused No.1 in the police station and supported the case of the prosecution.

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(xix) P.W.19-Prabhakar, witness to the mahazar at Ex.P.31 under which M.Os.131 to 143 were seized. He

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deposed that, he along with P.W.61 and accused No.1 going to the house of father of accused No.1 situated at 3^rd floor of Shaji Towers and seizing of M.Os.131 to 143.

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(xx) P.W.20-Sukumar N. Kotian, witness to the mahazar at Ex.P.38. He deposed that he does not know the contents of the mahazar at Ex.P.38. However, he identified his signature in the mahazar. The witness turned hostile.

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(xxi) P.W.21-Eshwar, RTO Officer, who issued ‘B’ extracts in respect of vehicle Hero Honda Passion Plus bearing No.KA-19-S-2467 and TVS Victor bike bearing No.KA-19-R-7171, which were marked as Exs.P.40 and P.41 respectively, is the witness, who supported the case of the prosecution.

¶254

(xxii) P.W.22-Harshith, mahazar witness to Ex.P.38. He deposed that he does not know the contents of the mahazar at Ex.P.38. However, he identified his signature in the said mahazar and thereby, he turned hostile.

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(xxiii) P.W.23-Narayana Ameen, mahazar witness to Ex.P.38. He deposed that he does not know what was

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seized under the mahazar at Ex.P.38. However, he identified his signature in the said mahazar and thereby, he turned hostile.

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(xxiv) P.W.24-Balakrishna, who deposed that he was working as writer for three years at the building of father of accused No.1 and that accused No.1Mohammed Naushad calling him to work at Bolara in 2004 and later accused No.1 called him for work at the site situated in Chembugudai which belonged to Ramadhari and that accused No.9 was the site incharge. The witness supported the case of the prosecution.

¶260

(xxv) P.W.25-Moosa, deposed that he does not know accused Nos.5 and 6, who were present before the Court and he further deposed that does not know why the case was registered against accused Nos.5 and 6 and further deposed that the police have not recorded his statement. Thereby, he turned hostile.

¶261

(xxvi) P.W.26-Appi, deposed that she is residing about a half furlong away from the house of accused No.6 and she does not know who was residing in the house of accused No.6 and has never visited his house and also stated that she has not given any statement before the police. Thereby, she turned partly hostile.

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(xxvii) P.W.27-Ashok Nayak deposed that he was running a general store at Kuduregundi. He does not know accused No.6-Fakir Ahmed, Ahmed Bava and Abbu. He stated that Abbu used to purchase articles from his shop and he does not identify any accused and turned partly hostile.

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(xxviii) P.W.28-Riji Joseph deposed that she does not know accused No.6-Fakhir Ahamad and turned hostile.

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(xxix) P.W.29-Ramachandra ThalaMakki deposed that he was an auto driver and that he knew the contractor Mohammed and deposed that he does not know Abbu.

¶267

(xxx) P.W.30-Aboobakkar deposed that he is a far relative of Fakir Ahmed and he was engaged by him as a mason for five days for construction work, which was carried out by contractor Mohammed and that since the money paid was not sufficient, he quit the work. He identified Fakir Ahmed.

¶268

(xxxi) P.W.31-Mohammad deposed about doing construction work for Fakir Ahmed and that he was not paid properly, he left the work. He identified accused No.2 as Ahmed Bava and accused No.6 as Fakir Ahmed.

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(xxxii) P.W.32-Chandrashekar deposed that he knows accused No.2-Ahmed Bava and Rafiq and that Ahmed Bava and Rafiq used to visit the rubber estate belonging to Fakir Ahmed. He identifies Rafiq as accused No.5 and Fakir Ahmed as accused No.6. He deposed that there was a hut and a half constructed house in the land belonging to Fakir Ahmed and that he has visited that house once and that the half constructed house was a lock manufacturing company and there were eight persons in the building and he does not remember their names.

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(xxxiii) P.W.33-Moula Ali, brother-in-law of accused No.8-Iqbal Bhatkal deposed that after marriage, his sister and brother-in-law were residing in Mumbai and after sometime they returned to Bhatkal and that accused No.8 was selling Ayurvedic medicines in his house. He deposed that Riyaz Bhatkal is the brother of accused No.8 and further deposed that he had seen him about ten years ago and he does not know the whereabouts of accused No.8.

¶273

(xxxiv) P.W.34-Nashuha Riyaz deposed that she is the wife of Riyaz Bhatkal. She stated that after marriage, she has not visited Mumbai and her husband used to take up engineering work at Mumbai and that she does

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not aware of Mumbai police or Mangalore Police visiting Bhatkal in search of her husband and turned partly hostile.

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(xxxv) P.W.35-Sana deposed that she is the wife of Iqbal Bhatkal and that Riyaz Bhatkal is her husband’s younger brother and she is not aware of Mumbai Police coming in search of Riyaz Bhatkal and it has been about ten years since she has seen him.

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(xxxvi) P.W.36-Mohammed Sajeed, relative of accused No.7 stated that Riyaz was married in the year 2001 and in the year 2003 Riyaz used to visit his house and that he used to tell him he wanted a house to stay in Mangalore, Bangalore and Mumbai as he was in the construction work and informed him that he does not know anyone in Mangalore. He further deposed that he has visited house of Riyaz once in Mangalore and when he met him, he did not meet anyone else and that he has visited the site and that he has last seen RiyazBhatkal in the year 2004 and supported the case of the prosecution.

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(xxxvii) P.W.37-Dr. Mohammed Arif deposed that he is the brother-in-law of Ismail. Iqbal Bhatkal and Riyaz Bhatkal are brothers. He know that Riyaz

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Bhatkal was working as a Civil Engineer in Mumbai and thereafter in Mangalore and that about 8 to 10 years ago the police had come in search of Riyaz and that he had last seen Riyaz Bhatkal about 10 to 12 years ago.

¶283

(xxxviii) P.W.38-Avil Samsun deposed about Noushad and Mudassar Yasin over staying at the ground floor and discussing about injustice towards Muslims in Gujarat and stated that Riyaz was in possession of 4 to 5 mobile phones and he was in the habit of changing his mobile phone and supported the case of the prosecution.

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(xxxix) P.W.39-Navyaraj deposed that in December 2008 her principal asked her to visit Ullal Police Station and when she visited the station the police showed the Xerox copy of her ID card and six to seven photographs and she identified the same as hers and she suspect that Naheed, brother of Noushad who is her classmate must have taken her ID and supported the case of the prosecution.

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(XL) P.W.40-Sanjaya Poojary deposed about accused No.1 visited his shop requesting him to solder short circuit, battery and timer and he gave it to him and collected Rs.300/- for the same.

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(XLI) P.W.41-Sudheer Hattangadi, Manager Bharath Co-Operative Bank, deposed that he has issued Ex.P.57-statement of account of S.S. Enterprises, which belongs to accused No.1 and supported the case of the prosecution.

¶289

(XLII) P.W.42-Shalini S. Shetty, Branch Manager, Vijaya Bank stated that she has issued certificate at Ex.P.61-Statement of account of Bharath Enterprises owned by Syed Mohammad Noushad and Ex.P.62statement of account of Dilshad Begum and Ex.P.63Statement of Namreen.

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(XLIII) P.W.43-Shivadas, Manager of Karnataka Bank, Kudraoli Branch stated that he has issued Ex.P.65fixed deposit receipt, which is in the name of Syed Mohammad Noushad and supported the case of the prosecution.

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(XLIV) P.W.44-Francis P.J, Chief Manager of South Indian Bank stated that he has issued Ex.P.68statement of account of Syed Mohammad Noushad and Ex.P.69-statement of account of Mohammad Ali.

¶292

(XLV) P.W.45-Prabhakara Naik, Manager, Haigai Bazar Branch, Mangalore stated that he has issued Ex.P.70statement of account of Syed Mohammad Noushad.

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(XLVI) P.W.46-Rehamathulla Sharif, Manager, Amanath Co-Operative Bank stated that he has issued Ex.P.73-statement of account of Mudassar Yasin and Ex.P.75-statement of account of Ruby Enterprises, which is operated by Mohammad Noushad.

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(XLVII) P.W.47-Ramesh, Commissioner of Urban Development Authority deposed that he has issued Ex.P.76-particulars of the ownership of land bearing Sy. No.103, 85 situated at Permanuru Village, Mangalore Taluk and Sy. No.28/2 situated at Someshwara Village, Mangalore.

¶297

(XLVIII) P.W.48-Srinivas, chief Officer, Municipal Corporation deposed that he has issued Ex.P.77 in respect of ownership of House No.15-111/38 standing in the name of Sri. Mohammad Ali, son of Ahamed (accused No.3) and supported the case of the prosecution.

¶298

(XLIX) P.W.49-K. Sukumar deposed that he defused five hand bombs and issued certificate as per Ex.P.79.

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(L) P.W.50-Kenjadiyapa, Police Constable, Ullal Police Station deposed that on 15.12.2008 he carried 15

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articles to FSL and submitted report as per Ex.P.80 and supported the case of the prosecution.

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(LI) P.W.51-Raghavendra, Police Constable, Ullal Police Station deposed that on 04.10.2008 he submitted FIR as per Ex.P.82 along with the complaint at Ex.P.9 before the Court and supported the case of the prosecution.

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(LII) P.W.52-Jayaramu P.R., FSL Officer deposed that he received 15 sealed articles (M.Os.144 to 154 and M.Os.51, 69, 74 and 88) from Ullal Police on 16.12.2008 and issued certificate at Ex.P.83.

¶305

(LIII) P.W.53-Kiran Kumar deposed that he is the owner of TVS Victor bearing registration No.KAR-19-R7171 and identified Ex.P.41-‘B’ Registrar Extract.

¶306

(LIV) P.W.54-N.G. Prabhakar, FSL officer deposed that on 16.12.2008 he received one sealed article from Ullal Police Station containing one AIR Rifle (M.O-71) and issuance of Certificate at Ex.P85.

¶307

(LV) P.W.55-Maheshwar Rao, Deputy Commissioner, Dakshina Kannada deposed that on 31.12.2008 he issued Ex.P.87-the Sanction Order under Section 7 of the Explosive Substance Act to prosecute accused No.1

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to accused No.12 for the offences under the Explosive Substance Act.

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(LVI) P.W.56-Ponnuraju, Deputy Commissioner, Dakshina Kannada deposed that he has issued the Certificate at Ex.P.88 the Sanction Order under Section 7 of the Explosive Substance Act to prosecute Accused No. 13 for offences under the Explosive Substance Act.

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(LVII) P.W.57-Shivaram Bhat, Under Secretary, Department of Home, Government of Karnataka deposed that he issued Ex.P.89 the Sanction Order under Section 196 of Cr.P.C to prosecute accused Nos.1 to 12 under the UAP Act, IPC, Explosive Substance Act and Arms Act.

¶313

(LVIII) P.W.58-Mallesh P. , FSL officer deposed that on 30.12.2008 he received Four (4) sealed Articles sent from Ullal Police Station and that he examined and issued the Certificate Ex.P90. He has identified Three articles namely -M.Os155, 156 and 157.

¶314

(LIX) P.W.59-Ivan Creado, Assistant Vice President, HDFC Bank deposed that he has issued Ex.P.93Statement of Account bearing A/c No.00632320014636, issued Ex.P.94 Statement of

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Account, Application form, Declaration form given by partners, Form No.60, Partnership Deed, Check List.

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(LX) P.W.60-Chandrashekar, Head Constable, Ullal Police Station deposed that based on Ex.P.9, he registered a Case in Crime No.242/2008 on 4.10.2008 and submitted the FIR as per Ex.P82. He identified the report at Ex.P.9, the mahazars at Exs.P.1 to P.3 and P.6 and he also identified M.O-1 to M.O-50 and the photos at Ex.P.4 and Passport copies belonging to Accused at Exs.P.7 and P.8.

¶319

(LXI) P.W.61-H. Shivaprakash, Sub-Inspector, Ullal Police Station deposed that he took over the investigation of the case from P.W.60-Chandrashekar on 4.10.2008. He seized the FORD car at Ex.P.16 under the Mahazar Ex.P15. He also seized the documents at Exs.P.17 to P.20 found in the car on 5.10.2008. On 6.10.2008 he has drawn the mahazar at Ex.P.22 and seized Ex.P.23 Xerox Copy of the Sale Deed and Ex.P.24 the GPA dated 24.01.2007. He also deposed that on 16.10.2008 Accused No.5 and 6 were produced before him and he arrested them and recorded their Voluntary Statements and seized 38 articles (M.O-51-88) under the Mahazar at Ex.P.13 at the instance of Accused No.6 and seized 41 Articles

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(M.O-89-129) under the Mahazar at Ex.P.14 at the instance of Accused No.5. He deposed that he recorded the Voluntary Statement of accused Nos.5 and 6 as per Exs.P.96 and P.97 respectively and sent 15 explosives on 12.12.2008, which were already seized and 16^th article which was seized to FSL, Bangalore with a Requisition Letter. On 16.12.2008 he handed over further investigation to P.W.-62 Jayanth Shetty. He has drawn the Mahazar at Ex.P.30 on 21.12.2008 and seized Rs.8,37,500/- which is marked as M.O.130.

¶323

(LXII) P.W.62-Jayanth Shetty, DYSP, Panamburu SubDivision deposed that on 16.12.2008 on the basis of the memo issued by S.P., Dakshina Kannada, he took over the investigation of Crime No.242/2008 of Ullal Police Station from P.W.-61 Shivaprakash. He deposed that on 20.12.2008 he recorded the Voluntary Statement of Mohammad Noushan-accused No.1 and AhamedBava-accused No.2 as per Exs.P.112 and P.113 respectively. On 21.12.2008 he drawn the Mahazar at Ex.P.31 and seized M.Os. 131 to 141 and other articles. He has also drawn the Mahazar Ex.P.38 under which 3 Articles were seized at the instance of Accused No.2. On 27.12.2008 he sent Timers,

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explosives, Gelatin, detonators and timers to FSL. On 31.12.2008, he filed Charge Sheet against the accused.

¶327

The case of the prosecution is that all the accused persons are the members of banned SIMI and Indian Muzahiddin Organization involved in the Terrorist activities from 2004-2008. To cause terror in the nation, carried on unlawful activities and unlawful meeting to make people feel insecure and to spoil the unity of the nation and completeness, to wage war against Indians, collected arms and manufactured the ammunitions with an intention to cause explosion, all the accused persons conspired and possessed illegal arms and transported the arms, illegal explosives, explosives substance etc., thereby a case came to be registered against 13 accused persons.

¶328

The main grievance of the learned counsel for the accused persons is that investigation made by the Sub-Inspector, is contrary to the provisions of Section 45 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as ‘the UAP Act’ for short) as no sanction was obtained and without there

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being any sanction, the very charges framed under the UAP Act is a nullity. In order to substantiate the contention of the learned counsel, it is relevant to consider the provisions of Section 196 of Cr.P.C., which reads as under:

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“196. Prosecution for offences against the State and for criminal conspiracy to commit such

¶333

offence.— (1) No Court shall take cognizance of—

¶334

(a) any offence punishable under Chapter VI or under section 153A, section 295A or sub-section (1) of section 505 of the Indian Penal Code (45 of 1860), or

¶335

(b) a criminal conspiracy to commit such offence, or

¶336

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except with the previous sanction of the Central Government or of the State Government. (1A) No Court shall take cognizance of—

¶338

(a) any offence punishable under section 153B or sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860), or

¶339

(b) a criminal conspiracy to commit such offence,

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except with the previous sanction of the Central Government or of the State Government or of the District Magistrate.

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(2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings:

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Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.

¶345

(3) The Central Government or the State Government may, before according sanction under sub-section (1) or sub-section (1A) and the District Magistrate may, before according sanction under subsection (1A) and the State Government or the District Magistrate may, before giving consent under subsection (2), order a preliminary investigation by a police officer not being below the

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rank of Inspector, in which case such police officer shall have the powers referred to in sub-section (3) of section 155.

¶349

A careful reading of the said provision makes it clear that no Court shall take cognizance of any offence punishable under Chapter VI or under Section 153A, [Section 295 A or subsection (1) of Section 505] of the IPC or a criminal conspiracy to commit such offence or any such abetment, except with the previous sanction of the Central Government or of the State Government. The Central Government or the State Government may, before according sanction under sub-section (1) or subsection (1A) and the District Magistrate may, before according sanction under sub-section (1A) and the State Government or the District Magistrate may, before giving consent under subsection(2) order a preliminary enquiry by a Police Officer not below the rank of Inspector, in which case, the police officer have the powers referred to in sub-section (3) of Section 155 of the Code of Criminal Procedure.

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A careful perusal of Government Notification issued under the provisions of Section 196 of Cr.P.C. clearly depicts that while issuing Sanction Order, Investigating Officer has not only invoked the provisions of IPC, but also the various provisions of UAP Act, Explosive Substances Act, 1908, provisions of Explosives Act and the provisions of the Arms Act. The specific provision to take cognizance under Chapter III, IV and VI of the UAP Act, previous sanction of the Central Government or, as the case may be, the State Government, is necessary and Section 45 of the UAP Act reads as under:

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“ 45. Cognizance of offences.— (1) No court shall take cognizance of any offence—

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(i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf;

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(ii) under Chapter 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.

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(2) Sanction for prosecution under sub-section

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(1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation, within such time as may be prescribed, to the Central Government or, as the case may be, the State Government.”

¶360

In the absence of any previous sanction either by the Central Government or any officer authorized by the Central Government in this behalf or by the State Government or as the case may be, the very action of invoking of the provisions of Sections 16, 17 and 18 of the UAP Act cannot be sustained. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Ashrafkhan alias Babu Munnekhan Pathan and another Vs. State of Gujarat reported in (2012) 11 SCC 606 . Paragraph Nos.26 and 46 of the judgment reads as under:

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“26. Having found that the Deputy Commissioner has not granted the prior approval, as

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required under Section 20-A(1) of TADA, we proceed to consider the consequence thereof. For that, we deem it expedient to reproduce Section 20-A of TADA which reads as under:

¶365

“ 20-A. Cognizance of offence.- (1) Notwithstanding anything contained in the Code, no information about the commission of an offence under this Act shall be recorded by the police without the prior approval of the District Superintendent of Police.

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(2) No court shall take cognizance of any offence under this Act without the previous sanction of the Inspector-General of Police, or as the case may be, the Commissioner of Police.”

¶367

x x x

¶368

46. In the result, we allow the appeals preferred by those accused who have been convicted and sentenced by the Designated Court and set aside the judgment and order of their conviction and sentence. However, we dismiss the appeals preferred by the State against the inadequacy of sentence and acquittal of some of the accused persons.”

¶369

With regard to the other contention that the sanction made under the provisions of Section 196 of the Cr.P.C. is equally

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applicable to other provisions of the Act, we are of the considered opinion that in the presence of specific provisions under the provisions of Section 45 of the UAP Act, which is a special enactment, the sanction granted under Section 196 of the Cr.P.C. cannot be made applicable and thereby, the very initiation of the investigation under the provisions of the UAP Act is illegal thereby, the framing of charges by the learned Sessions Judge against the accused persons without there being any sanction as contemplated under the provisions of Section 45 of the UAP Act, is illegal and without any basis.

¶373

The learned Sessions Judge proceeded to convict accused Nos.1, 2 and 6 without there being any sanction under the provisions of Section 45 of the UAP Act as stated supra and the very conviction against the accused under the UAP Act is vitiated and bad in law and the sanction order was passed on 31.12.2008 by the State Government, which applies only to the provisions of IPC and not to the provisions of UAP Act and Explosive Substances Act.

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41. Other contentions though raised by the learned Senior

¶377

Counsel with regard to the hierarchy of the authorities as contemplated under the provisions of Section 2 (e) of the UAP Act, we are of the considered opinion that the very charges framed against the accused persons under the provisions of UAP Act is without there being any sanction under Section 45 of the UAP Act, the entire proceedings initiated against the accused, is vitiated and the impugned conviction order passed by the learned Sessions Judge against accused Nos.1, 2 and 6 for the offence punishable under the provisions of UAP Act is liable to be setaside.

¶378

The accused persons have been convicted for the offence punishable under the provisions of Sections 3 and 25 of the Arms Act, 1959, which reads as under:

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“3. Licence for acquisition and possession of firearms and ammunition .—

¶380

(1) No person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds in

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this behalf a licence issued in accordance with the provisions of this Act and the rules made thereunder: Provided that a person may, without himself holding a licence, carry any firearms or ammunition in the presence, or under the written authority, of the holder of the licence for repair or for renewal of the licence or for use by such holder.

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(2) Notwithstanding anything contained in subsection (1), no person, other than a person referred to in sub-section (3), shall acquire, have in his possession or carry, at any time, more than three firearms: Provided that a person who has in his possession more firearms than three at the commencement* of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement*, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of sub-section (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that sub-section.

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(3) Nothing contained in sub-section (2) shall apply to any dealer in firearms or to any member of a rifle

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club or rifle association licensed or recognised by the Central Government using a point 22 bore rifle or an air rifle for target practice.

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(4) The provisions of sub-sections (2) to (6) (both inclusive) of section 21 shall apply in relation to any deposit of firearms under the proviso to sub-section (2) as they apply in relation to the deposit of any arm or ammunition under sub-section (1) of that section.

¶390

25. Punishment for certain offences —

¶391

(1) Whoever—

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(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or

¶393

(b) shortens the barrel of a firearm or converts an immitation firearm into a firearm in contravention of section 6;

¶394

(d) bring into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than three years but

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which may extend to seven years and shall also be liable to fine.

¶398

22[(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.

¶399

(1AA) Whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

¶400

23[(1AAA)] Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than

¶401

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¶403

24 [three years, but which may extend to seven years] shall also be liable to fine.

¶404

(1B) Whoever—

¶405

(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or

¶406

(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or

¶407

(c) sells or transfers any firearm which does not bear the name of the maker, manufacturer’s number or other identification mark stamped or otherwise shown thereon as required by sub-section

¶408

(2) of section 8 or does any act in contravention of sub-section (1) of that section; or

¶409

(d) being a person to whom sub-clause (ii) or subclause (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or

¶410

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¶412

(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or

¶413

(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or

¶414

(g) transports any arms or ammunition in contravention of section 12; or

¶415

(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or

¶416

(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are

¶417

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¶419

or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than 25 [one year] but which may extend to three years and shall also be liable to fine: Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 6[one year].

¶420

26 [(1C) Notwithstanding anything contained in subsection (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation.—For the purposes of this sub-section, “disturbed area” means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.]

¶421

(2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be

¶422

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¶424

punishable with imprisonment for a term which may extend to one year, or with fine or with both.

¶425

27[(3) Whoever sells or transfers any firearm, ammunition or other arms—

¶426

(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or

¶427

(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.]

¶428

(4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-

¶429

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¶431

section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.

¶432

(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.

¶433

On careful reading of Section 3 of the above said provision, it is evident that no person shall acquire, have in his possession, or carry any firearm or ammunition unless he holds a licence in this behalf, issued in accordance with the law under the provisions of this Act and the Rules made therein. The learned Sessions Judge proceeded to convict accused Nos.1, 2 and 6 for the offence punishable under the provisions of Section 25(1AA) read with Section 3 of the Arms Act, 1959 and sentenced him to undergo imprisonment for life with fine of Rs.10,000/-.

¶434

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¶436

On careful perusal of Section 25(1AA) of the Act

¶437

depicts that punishment shall be imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.

¶438

The materials on record clearly depicts that accused Nos.1, 2 and 6 were involved in various illegal activities and all of them conspired and possessed illegal arms and transported the arms, illegal explosives, explosives substance etc. The fact remains that when the accused persons were involved with a common object such as criminal conspiracy, the fact was known to wage war, even though common charges were proved to some extent, the material objects clearly depicts the activities of accused Nos.1, 2 and 6, who possessed the arms without there being any licence as contemplated under the provisions of Arms Act, they are liable to be convicted for not less than seven years.

¶439

Though under the provisions of Section 25 of the Arms Act, the punishment may be extended to imprisonment for life,

¶440

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¶442

the fact remains that the major provisions made against the accused persons is not proved beyond all reasonable doubt that the accused persons were involved in the commission of offence punishable under the provisions of UAP Act or Explosives Act and the learned Sessions Judge proceeded to convict the accused under the provisions of Section 5(b) of the Act, when the charge was made under Section 5(a) of the Explosive Substance Act, 1908, thereby, the life imprisonment imposed by the learned Sessions Judge cannot be sustained.

¶443

Though the material on record clearly depicts that accused Nos.1, 2 and 6 are involved in various unlawful activities, endangering the Nation, the fact remains that, in the absence of any specific provisions and in the absence of any evidence, conviction for life for the offence under the provisions of Section 25 of the Arms Act, cannot be sustained. The fact remains that while the very sanction order passed by the State Government incorporating all the provisions of Sections of IPC, UAP Act, Explosive Substances Act, Explosives Act and the Arms Act, is bad

¶444

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¶446

in law, thereby, investigation has been conducted incorrectly based on the sanction order dated 31.12.2008.

¶447

Thus, the question that also needs to be considered is:

¶448

“Whether the sanction order can be taken into consideration with respect to only the provisions of the IPC or under other provision of Explosive Substances Act, 1908 or Sections 3 and 25 of the Arms Act?”

¶449

A specific provision is made under the Explosive Substances Act that to invoke the provisions of Explosive Substances Act, Sanction of the District Magistrate is required as contemplated under Section 7 of the Explosive Substances Act. The same reads as under:-

¶450

“7. Restriction on trial of offences. – No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the [District Magistrate].”

¶451

To invoke the provisions of Arms Act, previous sanction of the District Magistrate is required as per Section 39 of the Arms Act, which reads as under:

¶452

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¶454

”39. Previous sanction of the district magistrate

¶455

necessary in certain cases.- No prosecution shall be instituted against any person in respect of any offence under section 3 without the previous sanction of the district magistrate.”

¶456

A careful reading of the said provision makes it clear that no prosecution shall be initiated against any person in respect of any offence under Section 3 without the previous sanction from the District Magistrate.

¶457

Of course, in the present case, the District Magistrate has given sanction order against accused Nos.1 to 12 as per Ex.P.87 on 31.12.2008 and against accused No.13 as per EX.P.88 on 31.03.2009.

¶458

Admittedly, in the present case, no such material is produced before the Court to prove the same. In the present case, though while framing the charge, the learned Sessions Judge proceeded to invoke the provisions of Section 3 read with Section 25 (1AAA) of the Act, learned SPP contended that sanction is only required for any offences committed under the provisions of

¶459

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¶461

Section 3 of the Arms Act and not under the provisions of Section 25(1AAA) of the Act. The said provision makes it clear that even on the proof of the said provision, the imprisonment with a term which shall not be less than ten years, which may be extended to imprisonment for life and also liable to pay fine may be imposed and no sanction is required.

¶462

Though a specific provision is made under Section 3 of the Arms Act, any offence cannot be proceeded without previous sanction under the provisions of the Arms Act.

¶463

Though learned SPP submits that under the provisions of Section 25(1AAA), no sanction is required however, when the provisions of Sections 3 and 25 (1AAA) of the Arms Act, invoked, the necessary sanction is required. Even otherwise, the punishment that may be imposed is imprisonment for seven years. Admittedly in the present case, the accused persons are in jail for more than 14 years. They have undergone punishment for a period of seven years. When a different provisions of the Act are invoked by the concerned authority, to prove the investigation,

¶464

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¶466

there must be a sanction on each and every provisions of the Act as stated supra. Unfortunately, though under the provisions of Explosive Substances Act, the sanction by the District Judge as contemplated under Section 7 of the Act was taken, very strangely the State Government while issuing sanction order on 31.12.2008 invoked all the provisions of the Act. Thereby, the very initiation made by the State Government is invalid. Thereby, the learned Judge is not justified in convicting the accused under the provisions of the Sections 16, 17 and 18 of the UAP Act, Section 5 (b) of the Explosive Substances Act, Section 120B read with Section 149, 420, 468 and 471 of the IPC and Section 6 of the Explosive Substances Act. 1908.

¶467

It is also relevant to state, at this stage, that whether this Court could permit to constitute a fresh prosecution against the accused persons, when the incident occurred in the year 2008 and we are in 2022 i.e., after lapse of more than 14 years to launch the fresh prosecution against all the accused persons, who are 32 years, 39 years and 53 years old, some of them have

¶468

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CRL.A No. 1206 of 2017 C/W CRL.A No. 820 of 2017

¶470

became senior citizens. Now putting the clock back, at this stage, when the prosecution witnesses themselves may not be available, in our considered opinion, serves no purpose. That apart, learned Sessions Judge even on appreciation of the evidence, has not considered the very sanction under the other provisions of the Acts stated supra, except the provisions of Section 196 of the Code, therefore, to resume the proceedings over and again would not serve purpose.

¶471

Though the learned SPP submits that other criminal cases are still pending against accused No.1, 2 and 6, it is for the prosecution to prove beyond all reasonable doubt and mere pendency of the case is not a ground to give a fresh permission in the present case when there is no sanction granted in respect of other provisions of the Acts. Thereby, in the absence of any sanction under the provisions of Section 45 of the UAP Act, punishment imposed against the accused for the offence punishable under the provisions of Sections 16, 17 and 18 of UAP Act cannot be sustained and is liable to be set-aside.

¶472

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¶474

When a specific charge was made against the accused

¶475

persons under the provisions of Section 5(a) of Explosive Substances Act, 1908 and the learned Sessions Judge convicted the accused persons under Section 5(b) of the Explosive Substances Act, 1908, it is relevant to extract the provisions of 5 of the Explosive Substances Act, 1908, which reads as under:-

¶476

“5. Punishment for making or possessing explosives under suspicious circumstances.—Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished,— 1[5. Punishment for making or possessing explosives under suspicious circumstances.—Any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not

¶477

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CRL.A No. 1206 of 2017 C/W CRL.A No. 820 of 2017

¶479

making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punished,-"

¶480

(a) in the case of any explosive substance, with imprisonment for a term which may extend to ten years, and shall also be liable to fine;

¶481

(b) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

¶482

The punishment under Section 5(a) of the Explosive Substances Act, 1908 is: imprisonment for a term which may extend to ten years, and shall also be liable to fine. However, the learned Sessions Judge proceeded to convict the accused under the provisions of Section 5(b) of the Explosive Substances Act, 1908. As per Section 5(b) of the Explosive Substances Act, 1908, in case of any special category of explosive substance, the punishment imposed is: rigorous imprisonment for life, or with

¶483

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CRL.A No. 1206 of 2017 C/W CRL.A No. 820 of 2017

¶485

rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

¶486

The learned Senior Counsel for accused Nos.1 and 2 contended that the very charges framed against the accused persons are under Section 5(a) of the Explosive Substances Act, 1908 and the learned Judge could not have convicted accused Nos.1, 2 and 6 under the provisions of Section 5(b) of the Explosive Substances Act, 1908 and there was no opportunity for the accused persons to lead evidence or to cross-examine the prosecution witness under Section 5(b) of the Explosive Substances Act, 1908.

¶487

Though the materials on record, including the prosecution witnesses, clearly depict that accused Nos.1, 2 and 6 are involved in various unlawful activities as alleged, the fact remains that if they have involved in the activities of explosive substances as contemplated under sub-section (a) of Section 5 of the Act, the punishment is only ten years. Even assuming that the case is proved under the provisions of Section 5(a) of the

¶488

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¶490

Explosive Substances Act, 1908, the learned Judge could not have awarded life imprisonment, which is not contemplated under Section 5(a) of the Explosive Substances Act, 1908 and there being so charge made out under Section 5(b) of the Explosive Substances Act, 1908, thereby, the punishment imposed by the learned Judge against accused No.1, 2 and 6 with imprisonment for life and with fine, cannot be sustained.

¶491

The materials on record clearly depicts that though the common charges were framed against accused Nos.1 to 13 on 28.01.2016, after contest accused Nos.3, 4, 5 and 13 were acquitted of the offences made out in the charge memo against them. Admittedly, accused Nos.7 to 12 are absconding and split up charge-sheet was filed against them and till today, they are not found. Admittedly, the State Government has not filed any appeal against the acquittal of accused Nos.3, 4, 5 and 13 for the various offences made out against them while framing common charges.

¶492

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¶494

On careful perusal of the materials on record, it clearly depicts that though charge was framed under the provisions of Section 5(a) of the Explosive Substances Act, 1908, which contemplates ten years imprisonment, the learned Sessions Judge proceeded to impose the punishment of imprisonment for life under the provisions of Section 5(b) of the Explosive Substances Act. When there is no proper evidence and when there is no charge framed under Section 5(b) and when the charge was framed under Section 5(a) of the Explosive Substances Act, the learned Judge is not justified in convicting accused Nos.1, 2 and 6 for imprisonment of life with fine of rupees ten thousand under the provisions of Section 5(b) of the Explosive Substances Act, 1908.

¶495

A careful reading of Section 5 of the Act, clearly depicts that any person, who makes or knowingly has in possession under his control any explosive substance, the special category explosives substances under such circumstances as to give rise to a reasonable suspicion that he is not making it or does

¶496

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¶498

not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, are liable to be punishable under the provisions of the Act.

¶499

In the present case, while recording the statement of accused Nos.1, 2 and 6 under Section 313 of Cr.P.C., except total denial, they have not taken any specific defence that they were holding the explosive substances act for lawful object. In the absence of the same, the material on record clearly depicts that they possessed the explosive objects, which is against the provisions of the Explosive Substances Act, 1908, thereby, they are liable to be punished under Section 5 (a) of the Explosive Substances Act, 1908. But the learned Sessions Judge proceeded to impose the punishment for life under the provisions of Section 5(b) of the Explosive Substances Act, 1908 and the same cannot be sustained and utmost the accused persons are liable to be convicted under Section 5(a) of the Explosive Substances Act,

¶500

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¶501

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¶502

1908 and not under Section 5(b) of the Explosive Substances Act, 1908.

¶503

It is also not in dispute that the provisions of Section 9B (1) of the Explosives Act, 1884 contemplates that whoever, in contraventions of Rule made under Section 5 or of the conditions of a licence granted under (b) possesses, uses, sells or transports any explosive, shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both.;

¶504

The accused persons were possessing the arms and explosives illegally and transporting the same, which was proved by the evidence of the prosecution witnesses and material documents and thereby, the punishment imposed by the learned Session Judge for two years with fine of Rs.3,000/- each is liable to be confirmed.

¶505

Accordingly, the prosecution has proved only the offences made out under the provisions of Section 5(a) of

¶506

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¶508

Explosive of Substances Act, 1908 and Section 9B (1) (b) of Explosives Act, 1884.

¶509

We hope and trust the accused persons would atleast maintain harmony in the society and would not indulge in any further unlawful activities and disturb the peace and Tranquility in the Nation. Now by this time, they would have had a reform and continue to be good citizen of this country.

¶510

The materials on record clearly depict that though accused No.6 was a post-graduate working in Indonesia from 10.09.2007 to 17.09.2008, he came to India only to attend his brother’s daughter’s wedding to be held in October 2008. Though accused No.6 was not a member of the gang, but has facilitated the alleged prosecution and other accused persons. In the present case, admittedly, accused Nos.3, 4, 5 and 13 were acquitted while issuing common charge and today, we are passing the order convicting accused Nos.1 and 2 only under Sections 5(a) of Explosive Substances Act, 1908 and 9B(1)(b) of the Explosives Act, 1884, taking into consideration mitigating circumstances age

¶511

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¶513

of accused No.6 as 67 years and taking into consideration the provisions that under Section 5(a) of the Explosives Substances Act, 1908, wherein, any person who makes or knowingly has in his possession or under his control any explosive substance or special category explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, in the case of any explosive substance, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine;

¶514

Accused No.6 has already undergone imprisonment for a period of six years, taking into consideration that he has only rented out building, we are of the considered opinion that the punishment already undergone by him is held sufficient by imposing a fine of Rs.10,000/- on him. Thereby, accused No.6 is also liable to be convicted for the offence punishable under

¶515

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¶517

Section 5(a) of the Explosive Substances Act and sentenced to undergo imprisonment for a period of six years.

¶518

VI. CONCLUSION

¶519

On re-appreciation of the entire material on record and in the light of the principles enunciated in the judgments of the Hon'ble Supreme Court cited supra, we answer the points raised in these criminal appeals as under:

¶520

i) The 1^st point is answered in the negative holding that the trial Court is not justified in convicting and sentencing the Accused Nos.1, 2 and 6 for the offences punishable under the provisions of Sections 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967; Section 5(b) of the Explosive Substances Act, 1908; Section 120B r/w Section 149 of IPC and Sections 3 and 25(1AA) of the Arms Act, 1959 and further Accused No.1 for the offences punishable under Sections 420, 468, 471 of IPC and Accused No.6 for the offence punishable under Section 6 of the Explosive Substances Act, 1908, in the peculiar facts and circumstances of the case.

¶521

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¶523

ii) The 2^nd point is answered in the affirmative holding that the trial Court is justified in convicting and sentencing the Accused Nos.1, 2 and 6 for the offence punishable under the provisions of Section 9B(1)(b) of the Explosives Act, 1884.

¶524

VII. RESULT

¶525

Accordingly, we pass the following:

¶526

ORDER

¶527

i) Criminal Appeal No.1206/2017 filed by Accused Nos.1 and 2 and Criminal Appeal No.820/2017 filed by Accused No.6 are hereby allowed-in-part ;

¶528

ii) The impugned judgment of conviction and order of sentence dated 10/12.04.2017 passed in S.C.No.60/2009 by the learned III Additional District and Sessions Judge, Dakshina Kannada, Mangaluru insofar as convicting Accused Nos.1, 2 and 6 for the offences punishable under the provisions of Sections 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967; Section

¶529

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¶531

5(b) of the Explosive Substances Act, 1908; Section 120B r/w Section 149 of IPC and Sections 3 and 25(1AA) of the Arms Act, 1959 and further Accused No.1 for the offences punishable under Sections 420, 468, 471 of IPC and Accused No.6 for the offence punishable under Section 6 of the Explosive Substances Act, 1908, is hereby set

¶532

aside ;

¶533

iii) Accused Nos.1 and 2 are hereby convicted for the offence punishable under the provisions of Section 5(a) of the Explosive Substances Act, 1908 and are sentenced to undergo imprisonment for a period of ten years with fine of Rs.10,000/- each, in default to undergo further simple imprisonment for two years;

¶534

iv) Accused No.6 is convicted for the offence punishable under the provisions of Section 5(a) of the Explosive Substances Act, 1908 and the period

¶535

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¶537

of sentence of more than six years already undergone by him shall be treated as sufficient punishment for the said offence, with fine of Rs.10,000/- (Rupees ten thousand only);

¶538

v) The impugned judgment of conviction and order of sentence insofar as convicting Accused Nos.1, 2 and 6 for the offence punishable under the provisions of Section 9B(1)(b) of the Explosives Act, 1884 and sentencing them to undergo rigorous imprisonment for two years and to pay a fine of Rs.3,000/- with default sentence, is hereby

¶539

confirmed ;

¶540

vi) All the sentences shall run concurrently;

¶541

vii) Since accused Nos.1 and 2 are in judicial custody for more than 14 years and Accused No.6 is in judicial custody for more than six years, they are entitled for the benefit of set off as contemplated

¶542

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¶543

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¶544

under the provisions of Section 428 of the Code of Criminal Procedure;

¶545

viii) The fine amount imposed for the offences punishable under the provisions of Section 5(a) of the Explosive Substances Act, 1908 and Section 9B(1)(b) of the Explosives Act, 1884, shall be paid within one month from the date of receipt copy this order.

¶546

ix) Accused No.1/Sayyed Mohammed Naushad, Accused No.2/Ahamad Bava Aboobakkar and Accused No.6/Fakeer Ahamad @ Fakeer shall be released forthwith on payment of fine amount as stated supra, if they are not required in any other case.

¶547

Though learned SPP submits that other criminal cases

¶548

are pending against accused Nos.1, 2 and 6, if it is so, the prosecution has to prove the same independently and the

¶549

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¶551

observations made by this Court in the present appeal depending upon the facts and circumstances of the present case only.

¶552

At this stage, it is relevant to state that Sri Kiran S. Javali, learned SPP-I along with Sri Vijay Kumar Majage, learned Addl. SPP during the course of arguments fairly submitted that while issuing the sanction Order under the provisions of Section 196 of the Code of Criminal Procedure, the Investigating Officer has invoked the provisions of various special Acts, which is impermissible. The said fair submission is placed on record. Their role as Officers of the Court must be commended.

¶553

We hope and trust that the learned members of the Bar will assist the Court by adopting such fair submissions in future.

¶554

THE RATIO DECIDENDI IN THESE APPEALS IS:

¶555

"When the State Government accorded sanction only under the provisions of Section 196 of the Code of Criminal Procedure, conviction of the accused persons under the provisions of Unlawful Activities

¶556

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¶557

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¶558

(Prevention) Act, 1967; Explosive Substances Act, 1908; the Explosives Act, 1884, the Arms Act, 1959, in the absence of any sanction Order under the provisions of the said special enactments, either by the Central Government or any Officer authorized by the Central Government or by the State Government,

¶559

is impermissible .

¶560

Sd/JUDGE

¶561

Sd/JUDGE

¶562

Page Nos…. 1 to 48 kcm

¶563

…..49 to end MBM

Mr.Fakir Ahmed v. State of Karnataka

Case brief

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Mr.Fakir Ahmed v. State of Karnataka

Case brief

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