UNION OF INDIA versus YASMEEN MOHAMMAD ZAHID @ YASMEEN on 2 August 2019

996

[2019] 10 S.C.R. 996

SUPREME COURT REPORTS

[2019] 10 S.C.R.

UNION OF INDIA

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v.

YASMEEN MOHAMMAD ZAHID @ YASMEEN

(Criminal Appeal No.1199 of 2019).

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AUGUST 02, 2019

[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]

Penal Code, 1860:

ss.120B and 125 and ss.38, 39 and 40 of Unlawful ActivitiesC(Prevention) Act, 1967 – Conviction under – By trial/Special Court– Sentenced to three years RI on one count and seven years RI onfour counts – High Court acquitted the accused u/s.125 IPC andss.39 and 40 of the Act – Conviction u/s. 120B IPC and s.38 of theAct was upheld while reducing the sentence to one year and threeyears respectively – Appeal of State challenging the acquittal orderDand reduction of sentence – Appeal by accused challengingconviction order – Held: Evidence on record point to the existenceof mens rea and hence conviction u/s.120B IPC and s.38 of the Actwas correct – But the offences u/ss. 125 IPC and ss.39 and 40 ofthe Act are not made out, hence acquittal thereunder affirmed –EHowever, reduction of sentence by High Court on the ground ofsympathy is not sustainable – Therefore, sentence of thRee yearsand seven years imposed by trial Court is restored.

Unlawful Activities (Prevention) Act, 1967:

ss.38 and 39 – Scope of – Held: The scope of ss.38 and 39Fand their fields of operation are different – On investigation ofs.38, s.39 does not become superfluous.

Partly allowing the appeal of the State and dismissing thatof the accused, the Court GHELD: 1 The evidence on record, establishes that A1 waspropagating the ideology of IS and advocating, among otherthings, war against non-Muslims; that the classes were attendedby A2 (appellant-accused) that the videos relating to suchspeeches were found on her person when she was arrested; andthat she was attempting to go to Afghanistan at the instance of H

A1. These features definitely point to the existence of mens rea.The Courts below were therefore absolutely right in recordingconviction against A2 in respect of offences under Section 120BIPC and Section 38 of the Unlawful Activities (Prevention) Act,1967. [Para 15] [1003-G-H; 1004-A-B]

2. As regards the offence under Section 125 of the IPC theHigh Court was right in observing that there was evidence toprove that A2 had attended classes of Jihad propagating ISISideology by original Accused No.1 but there was nothing to indicatethat she had taken any steps to wage a war or had attempted orabetted waging of such war against any Asiatic Power in alliancewith or at peace with Government of India and as such there wasno material to sustain the charge under Section 125 IPC.[Paras 6 and 7] [1001-B-C]

3. Sections 39 and 40 of the Act require certain elementsin respect of which there is no material evidence on record. ForSection 39 of the Act to get attracted, support to a terroristorganisation must be within the meaning of either of three clausesviz clauses (a), (b) and (c) of sub Section (1). Similarly, Section 40requires certain elements on satisfaction of which a person canbe said to be guilty of raising funds for a terrorist organisation.None of those features are established as against A2. The acquittalin respect of charges under Sections 39 and 40 was thereforerightly recorded by the High Court. [Para 16] [1004-D-E]

4. The High Court was not right in observing “if a personis punishable under Section 38, Section 39 becomes superfluous”.The scope of these two Sections and their fields of operation aredifferent. One deals with association with a terrorist organisationwith intention to further its activities while the other deals withgarnering support for the terrorist organisation, not restrictedto provide money; or assisting in arranging or managing meetings;or addressing a meeting for encouraging support for the terroristorganisation. [Para 17] [1005-F-G]

5. The only ground that weighed with the High Court whilereducing the sentence was sympathy. Even at the time of arrestof the appellant-accused, while leaving for Afghanistan, certainobjectionable material was found on her person. The intensity of A

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Aher participation and involvement were clearly made out. In thecircumstances, there was no room for invoking sympatheticconsiderations. The quantum of sentence imposed by the trialcourt was absolutely correct and adequate. [Para 19][1004-H;1005-A]

BState of Keralav. Raneef (2011) 1 SCC 784 : [2011] 1SCR 590 – distinguished.

Arup Bhuyanv. State of Assam(2011) 3 SCC 377 :[2011] 2 SCR 506 – referred to.

Case Law Reference

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[2011] 1 SCR 590 distinguishedPara 12

[2011] 2 SCR 506 referred toPara 14

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1199 of 2019DFrom the Judgment and Order dated 04.10.2018 of the High Courtof Kerala at Ernakulam in Crl. A. No. 506 of 2013

With

Criminal Appeal No. 1200 of 2019.

Shailesh Madiyal, B.V. Balaram Das, Santosh Krishnan, ZulfikerEAli P.S., Faisal M. Aboobaker, Ms. Lakshmi Shree Puthenpurackal, Advs.for the appearing parties.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J.

F1. Special leave to appeal granted.

2. The judgment and order dated 04.10.2018 passed by the HighCourt of Kerala in Criminal Appeal No.506 of 2018 has given rise tothese two appeals, one by Union of India against acquittal of A2-YasmeenMohammad Zahid @ Yasmeen in respect of offences punishable underGSection 125 of the Indian Penal Code (“IPC” for short), Sections 39 and40 of the Unlawful Activities (Prevention) Act, 1967 (UAPA for short)and also against reduction in sentence ordered by the High Court foroffences under Section 120B of IPC and Section 38 of the UAPA, whilesaid A2–Yasmeen is in appeal against her conviction and sentence underSection 120B IPC and Section 38 of the UAPA.H

3. The case of the prosecution, in brief, was as under:

(a) Pursuant to complaint received on 10.07.2016 in ChanderaPolice Station, Kasaragod preliminary investigation was undertaken whichrevealed that 14 persons had left India to join Islamic State of Iraq andSeria (ISIS) which is declared to be a terrorist organisation (Serial No.38in the First Schedule to the UAPA).

(b) During the course of investigation, A2–Yasmeen was arrestedon 01.08.2016 at Indira Gandhi International Airport, New Delhi whileshe was attempting to travel to Afghanistan along with her child.

(c) According to the prosecution, there was a criminal conspiracybetween original Accused No.1 (husband of A2-Yasmeen) and A2-Yasmeen from 2015 pursuant to which conspiracy A1 and A3 to A15left India and joined ISIS in Afghanistan; and A2-Yasmeen was an activeparticipant supporting terrorist activities of ISIS; and she had raised fundsto further the activities of ISIS and had received funds which wereutilised for supporting the activities of ISIS.

4. Out of 15 accused named in the charge-sheet all the otheraccused were declared to be absconding and A2-Yasmeen alone wassent up for trial for the offences punishable under Section 120B IPC,Section 125 IPC and under Sections 38, 39 and 40 of the UAPA. Thecharges were framed against her in respect of said offences. Theprosecution examined 52 witnesses and relied upon various documentsand material objects. Insofar as the role attributed to A2-Yasmeen wasconcerned, the relevant witnesses were PWs 4, 6, 7, 8, 11, 12 and 13.

5. After going through the material on record, the Special Courtfor the trial of NIA Cases, Ernakulam, found that the prosecution hadestablished the case against A2-Yasmeen and convicted her for theoffences punishable under Sections 120B and 125 IPC and under Sections38, 39 and 40 of the UAPA and sentenced her to suffer rigorousimprisonment for three years, seven years, seven years, seven yearsand seven years respectively under the aforesaid five counts. A2-Yasmeen was also directed to pay fine in the sum of Rs.25,000/- underSection 120B IPC, in default whereof she was directed to suffer threemonths rigorous imprisonment. The judgment and order dated 24.03.2018passed by the trial court was the subject matter of challenge at theinstance of A2-Yasmeen in Criminal Appeal No.506 of 2018.

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A6. The High Court by its judgment under appeal, set aside theconviction and sentence of A2-Yasmeen for the offences punishableunder Section 125 IPC, Sections 39 and 40 of the UAPA while upholdingher conviction for the offence punishable under Section 120B IPC andSection 38 of the UAPA. The High Court however reduced thesubstantive sentence from three years and seven years to one year andBthree years respectively on said two counts. The other elements, namely,sentence of fine and the default sentence were not varied or modifiedby the High Court.

7. During the course of its judgment, the High Court observed asunder:- C

“The aforesaid evidence of PW4, PW6, PW18 and PW21 whohad attended the class of 1[st] accused clearly proves the propagationof ideology of IS. Therefore there is absolutely no difficulty inassuming that the class attended by A2 in the house of PW7 andPW8 and taken by A1 was with reference to IS and the Jihad,which according to them was a war against non Muslims………

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The prosecution has thus proved that the account ending with 251is of Sonia Sebastian who is the wife of the 1[st] accused and theamount was withdrawn from the said account on various datesfrom 3.6.2016 to 22.07.2016 by the 2[nd] accused. Contention isthat the money was deposited by A1 in the account of SoniaSebastian and the ATM card given to Sonia Sebastian was usedby A2 for collecting the amounts. It is stated that the CCTVfootage would show that the 2[nd] accused has withdrawn moneyfrom the bank accounts.

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The 2[nd] accused was arrested on 1.8.2016 and she was underjudicial custody in Kannur women prison. At the time of admission,her personal belongings were entered in a register. Among thearticles, there were two Idea SIM cards. The SIM cards wereseized by PW41 as per P29 mahazar and produced as MO13 andMO14. The articles also contained a memory card marked asMO15. The memory card contained revelation videos and videosrelating to ISIS, audio speech of Anwar Alwaki, a brief guide toIslamic State and women of Islamic State. This according to theprosecution further proved that she was preparing to go toAfghanistan at the instance of the 1[st] accused. When these facts G

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are proved, the question is whether the accused had committedany such offence.”

In the backdrop of these proved facts, the High Court thenconsidered whether the offences alleged against A2-Yasmeen underthe aforesaid five counts were made out. It was observed that therewas evidence to prove that A2 had attended classes of Jihad propagatingISIS ideology by original Accused No.1 but there was nothing to indicatethat she had taken any steps to wage a war or had attempted or abettedwaging of such war against any Asiatic Power in alliance with or atpeace with Government of India and as such there was no material tosustain the charge under Section 125 IPC. As regards charge underSection 38 of the UAPA it was observed as under:

“There is evidence to prove that the 2[nd] accused was associatedwith A1 who propagated ISIS ideology and had gone even to theextent of joining him. Her attempt to proceed to Afghanistan waswith a clear intention to meet 1[st] accused and to involve in ISrelated activities. Therefore she is punishable under Section38(2).”

8. In respect of charge under Section 39 of the UAPA the HighCourt found that though A2 was certainly influenced by the ideologyprofessed by A1, she herself had not arranged any of the acts fallingunder Clauses (a) to (c) of Section 39. The High Court went on toobserve as under:

“She had already become a member of the organization ascontemplated under Section 38 of the Act. If a person ispunishable under Section 38, Section 39 becomes superfluous.”

9. As regards charge under Section 40 of the UAPA, the HighCourt found that she was not raising any funds for terrorist organisation;the amounts she received were for personal use and for purchasingtickets for travel and other arrangements for herself and for her son andas such charge under Section 40 of the UAPA was not made out.

10. Concluding that A2-Yasmeen was guilty of the offencespunishable under Section 120B IPC and Section 38 of the UAPA, theHigh Court considered the case with a lenient view and reduced thesubstantive sentences in respect of these two offences as statedhereinabove.

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A11. In these appeals we heard Mr. K.M. Natraj, learned AdditionalSolicitor General for Union of India and Mr. Santosh Krishnan learnedAdvocate for A2-Yasmeen. According to the learned Additional SolicitorGeneral, the material on record established the role played by A2-Yasmeen beyond any doubt and her acquittal in respect of offencespunishable under Section 125 IPC and Sections 39 and 40 of the UAPABwas incorrect and in any case there was no reason to reduce thesubstantive sentence in respect of offences under Section 120B IPCand Section 38 of the UAPA. Mr. Santosh Krishnan, learned Advocatefor A2-Yasmeen not only supported the judgment of the High Court inrespect of acquittal under Section 125 IPC and Sections 39 and 40 ofCthe UAPA but submitted that A2 deserved acquittal even in respect ofSection 120B IPC and Section 38 of the UAPA. Relying upon thedecisions of this Court in Arup Bhuyan v. State of Assam[1] and State ofKerala v. Raneef[2] it was submitted that for an offence under Section38 of the UAPA to get attracted the prosecution must establish requisitemens rea. He further submitted that in order to attract Sections 39 andD40 of the UAPA there must be material indicating that the acts in questionwere done by the accused in order to further the activity of a terroristorganisation.

12. In State of Kerala v. Raneef[2], a practising Dentist was allegedto have given medical aid to a wounded accused and the matter aroseEfrom the order of the High Court granting bail to said Dentist. Whileaffirming the order of the High Court, it was observed, “7. At this stage we are not expressing any opinion as to whetherthe allegations in the versions of the prosecution or defence arecorrect or not, as evidence has yet to be led. However, we wouldFlike to make certain observations.

8. We are presently only considering the bail matter and are notdeciding whether the respondent is guilty or not. Evidence has yetto be led and the trial yet to commence. Hence the prosecution isyet to establish by proof beyond reasonable doubt that theGrespondent was part of a conspiracy which led to the attack onProf. Jacob. The case against the respondent is very differentfrom that against the alleged assailants. There is no allegationthat the respondent was one of the assailants. We are of the opinion 1(2011) 3 SCC 377H2(2011) 1 SCC 784

that at this stage there is no prima facie proof that the respondentwas involved in the crime. Hence, the proviso to Section 43-D(5)has not been violated.

9. The respondent, being a doctor, was under the Hippocraticoath to attempt to heal a patient. Just as it is the duty of a lawyerto defend an accused, so also it is the duty of a doctor to heal.Even a dentist can apply stitches in an emergency. Prima faciewe are of the opinion that the only offence that can be levelledagainst the respondent is that under Section 202 IPC, that is, ofomitting to give information of the crime to the police, and thisoffence has also to be proved beyond reasonable doubt. Section202 is a bailable offence.”

13. Mr. Krishnan, however relied upon certain observations insaid decision to submit that mere membership of an unlawful organizationwas not enough and there must be clear proof that the accused intendedto accomplish the aims of the organization by resort to violence. Thoseobservations were made while considering the matter in the context oforder of release on bail during trial which is clear from paragraphs 10and 15 of the decision.

14. In the case of Arup Bhuyan v. State of Assam[1], the onlymaterial against the concerned accused was his confession to the policein which he had identified the house of the deceased and it was observed:- “7. In the instant case, the prosecution case mainly relies on thealleged confessional statement of the appellant made before theSuperintendent of Police, which is an extra-judicial confessionand there is absence of corroborative material. Therefore, weare of the opinion that it will not be safe to convict the accused onthe basis of alleged confessional statement.”

The subsequent portion of the decision, where the earlier decisionin State of Kerala v. Raneef[2] was considered, was relied upon byMr. Krishnan.

15. The evidence on record, as culled out by the High Court in theobservations quoted hereinabove establishes that A1 was propagatingthe ideology of IS and advocating, among other things, war against non-Muslims; that the classes were attended by A2-Yasmeen; that the videos A

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Arelating to such speeches were found on her person when she wasarrested; and that she was attempting to go to Afghanistan at the instanceof A1. These features definitely point the existence of mens rea. TheCourts below were therefore absolutely right in recording convictionagainst A2 in respect of offences under Section 120B IPC and Section38 of the UAPA. The submissions advanced by Mr. Krishnan, therefore,Bcannot be accepted and the appeal preferred by A2-Yasmeen must fail.

16. We now turn to the appeal preferred by the Union to seewhether the acquittal of A2 for offences under Section 125 of IPC andSections 39 and 40 of the UAPA was justified. As regards the offenceunder Section 125 of the IPC, the matter was rightly appreciated by theCHigh Court and we are in complete agreement with the view taken bythe High Court.

Coming to Sections 39 and 40 of the UAPA, these provisionsrequire certain elements in respect of which there is no material evidenceon record. For Section 39 of the UAPA to get attracted, support to aDterrorist organisation must be within the meaning of either of three clausesviz clauses (a), (b) and (c) of sub Section (1). Similarly, Section 40requires certain elements on satisfaction of which a person can be saidto be guilty of raising funds for a terrorist organisation. None of thosefeatures are established as against A2-Yasmeen. The acquittal in respectEof charges under Sections 39 and 40 was therefore rightly recorded bythe High Court.

17. We must however state that the High Court was not right inobserving “if a person is punishable under Section 38, Section 39 becomessuperfluous”. In our view, the scope of these two Sections and theirFfields of operation are different. One deals with association with aterrorist organisation with intention to further its activities while the otherdeals with garnering support for the terrorist organisation, not restrictedto provide money; or assisting in arranging or managing meetings; oraddressing a meeting for encouraging support for the terroristorganisation.G

18. Lastly, we come to the quantum of sentence in respect ofoffences where A2-Yasmeen has been found guilty by both the Courts.

19. The only ground that weighed with the High Court whilereducing the sentence was sympathy. The material on record indicatesthe role played by A2-Yasmeen. Even at the time of her arrest, whileH

leaving for Afghanistan, certain objectionable material was found on herperson. The intensity of her participation and involvement were clearlymade out. In the circumstances, there was no room for invokingsympathetic considerations. The quantum of sentence imposed by thetrial court was absolutely correct and adequate.

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20. In the premises,

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A] Appeal preferred by A2-Yasmeen challenging her convictionand sentence under Section 120B IPC and Section 38 of the UAPA isdismissed.

B] Appeal preferred by the Union challenging the acquittal ofA2-Yasmeen in respect of offences under Section 125 of the IPC andSections 39 and 40 of the UAPA is dismissed.

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C] Appeal preferred by the Union as regards reduction ofsentence awarded to A2-Yasmeen for offences under Section 120BIPC and Section 38 of the UAPA is allowed. The order passed by theHigh Court in that behalf is set aside and the sentence imposed by theDtrial court in respect of offences under Section 120B IPC and Section38 of the UAPA against A2 is restored.

21. Appeals stand disposed of, in aforementioned terms.

Kalpana K. Tripathy

Appeals disposed of.

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