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SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, JJ.
Union of India – Appellant
Versus
Yasmeen Mohammad Zahid @ Yasmeen – Respondent
Criminal Appeal No.1199 of 2019 (Arising out of Special Leave Petition (Crl.) No.461 of 2019) with Criminal Appeal No.1200 of 2019 (Arising out of Special Leave Petition (Crl.) No.6899 of 2019) (D.No.740 of 2019)
Decided On : 02-08-2019
(A) Indian Penal Code, 1860 – Sections 120B and 125 – Unlawful Activities (Prevention) Act, 1967 – Sections 38, 39 and 40 – Criminal conspiracy to join ISIS – Raising of funds and cadres to support terror activities – High Court set aside conviction and sentence of A2- for offences punishable under Section 125 IPC, Sections 39 and 40 of UAPA while upholding her conviction for offence punishable under Section 120B IPC and Section 38 of UAPA – High Court reduced substantive sentence from three years and seven years to one year and three years respectively on said two counts – Sentence of fine and default sentence not varied or modified by High Court – Evidence on record establishes that A1 was propagating ideology of IS and advocating, among other things, war against non-Muslims – Videos relating to such speeches were found on her person when she was arrested – She was attempting to go to Afghanistan at instance of A1 – These features definitely point existence of mens rea – Courts below were absolutely right in recording conviction against A2 in respect of offences under Section 120B IPC and Section 38 of UAPA – Acquittal of A2 for offences under Section 125 of IPC was justified – Regarding Sections 39 and 40 of UAPA, these provisions require certain elements in respect of which there is no material evidence on record – For Section 39 of the UAPA to get attracted, support to a terrorist organisation must be within meaning of either of three clauses viz clauses (a), (b) and (c) of sub Section (1) – Similarly, Section 40 requires certain elements on satisfaction of which a person can be said to be guilty of raising funds for a terrorist organisation – None of those features are established as against A2-Yasmeen – Acquittal in respect of charges under Sections 39 and 40 was rightly recorded by High Court – However, High Court was not right in observing “if a person is punishable under Section 38, Section 39 becomes superfluous” – Only ground that weighed with the High Court while reducing sentence was sympathy – In view of material on record, there was no room for invoking sympathetic considerations – Quantum of sentence imposed by trial court was absolutely correct and adequate – Appeal preferred by A2-Yasmeen challenging her conviction and sentence under Section 120B IPC and Section 38 of UAPA dismissed – Appeal preferred by Union challenging acquittal of A2 respect of offences under Section 125 of IPC and Sections 39 and 40 of UAPA dismissed – Appeal preferred by Union as regards reduction of sentence awarded to A2 for offences under Section 120B IPC and Section 38 of the UAPA is allowed – Order passed by High Court in that behalf is set aside and sentence imposed by trial court in respect of offences under Section 120B IPC and Section 38 of UAPA against A2 restored. (Paras 6, 15, 16, 19 and 20)
(B) Unlawful Activities (Prevention) Act, 1967 – Sections 38 and 39 – Scope and operation – Scope of these two Sections and their fields of operation are different. One deals with association with a terrorist organisation with intention to further its activities while the other deals with garnering support for the terrorist organisation, not restricted to provide money; or assisting in arranging or managing meetings; or addressing a meeting for encouraging support for terrorist organisation. (Para 17)
Facts of the Case:
Judgment and order dated 04.10.2018 passed by the High Court of Kerala in Criminal Appeal No.506 of 2018 has given rise to these two appeals, one by Union of India against acquittal of A2-Yasmeen Mohammad Zahid @ Yasmeen in respect of offences punishable under Section 125 of Indian Penal Code, Sections 39 and 40 of Unlawful Activities (Prevention) Act, 1967 and also against reduction in sentence ordered by the High Court for offences under Section 120B of IPC and Section 38 of the UAPA, while said A2–Yasmeen is in appeal against her conviction and sentence under Section 120B IPC and Section 38 of UAPA.
Findings of the Court:
High Court was not right in observing “if a person is punishable under Section 38, Section 39 becomes superfluous”. In our view, scope of these two Sections and their fields of operation are different. One deals with association with a terrorist organisation with intention to further its activities while the other deals with garnering support for the terrorist organisation, not restricted to provide money; or assisting in arranging or managing meetings; or addressing a meeting for encouraging support for the terrorist organisation.
Result : Appeals disposed of in terms.
JUDGMENT :
UDAY UMESH LALIT, J.
1. Special leave to appeal granted.
2. The judgment and order dated 04.10.2018 passed by the High Court of Kerala in Criminal Appeal No.506 of 2018 has given rise to these two appeals, one by Union of India against acquittal of A2-Yasmeen Mohammad Zahid @ Yasmeen in respect of offences punishable under Section 125 of the Indian Penal Code (“IPC” for short), Sections 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 (UAPA for short) and also against reduction in sentence ordered by the High Court for offences under Section 120B of IPC and Section 38 of the UAPA, while said A2– Yasmeen is in appeal against her conviction and sentence under Section 120B IPC and Section 38 of the UAPA.
3. The case of the prosecution, in brief, was as under:
(a) Pursuant to complaint received on 10.07.2016 in Chandera Police Station, Kasaragod preliminary investigation was undertaken which revealed that 14 persons had left India to join Islamic State of Iraq and Seria (ISIS) which is declared to be a terrorist organisation (Serial No.38 in the First Schedule to the UAPA).
(b) During the course of investigation, A2–Yasmeen was arrested on 01.08.2016 at Indira Gandhi International Airport, New Delhi while she was attempting to travel to Afghanistan along with her child.
(c) According to the prosecution, there was a criminal conspiracy between original Accused No.1 (husband of A2-Yasmeen) and A2-Yasmeen from 2015 pursuant to which conspiracy A1 and A3 to A15 left India and joined ISIS in Afghanistan; and A2-Yasmeen was an active participant supporting terrorist activities of ISIS; and she had raised funds to further the activities of ISIS and had received funds which were utilised for supporting the activities of ISIS.
4. Out of 15 accused named in the charge-sheet all the other accused were declared to be absconding and A2-Yasmeen alone was sent up for trial for the offences punishable under Section 120B IPC, Section 125 IPC and under Sections 38, 39 and 40 of the UAPA. The charges were framed against her in respect of said offences. The prosecution examined 52 witnesses and relied upon various documents and material objects. Insofar as the role attributed to A2-Yasmeen was concerned, the relevant witnesses were PWs 4, 6, 7, 8, 11, 12 and 13.
5. After going through the material on record, the Special Court for the trial of NIA Cases, Ernakulam, found that the prosecution had established the case against A2-Yasmeen and convicted her for the offences punishable under Sections 120B and 125 IPC and under Sections 38, 39 and 40 of the UAPA and sentenced her to suffer rigorous imprisonment for three years, seven years, seven years, seven years and seven years respectively under the aforesaid five counts. A2-Yasmeen was also directed to pay fine in the sum of Rs.25,000/-under Section 120B IPC, in default whereof she was directed to suffer three months rigorous imprisonment. The judgment and order dated 24.03.2018 passed by the trial court was the subject matter of challenge at the instance of A2-Yasmeen in Criminal Appeal No.506 of 2018.
6. The High Court by its judgment under appeal, set aside the conviction and sentence of A2-Yasmeen for the offences punishable under Section 125 IPC, Sections 39 and 40 of the UAPA while upholding her conviction for the offence punishable under Section 120B IPC and Section 38 of the UAPA. The High Court however reduced the substantive sentence from three years and seven years to one year and three years respectively on said two counts. The other elements, namely, sentence of fine and the default sentence were not varied or modified by the High Court.
7. During the course of its judgment, the High Court observed as under:-
“The aforesaid evidence of PW4, PW6, PW18 and PW21 who had attended the class of 1st accused clearly proves the propagation of ideology of IS. Therefore there is absolutely no difficulty in assuming that the class attended by A2 in the house of PW7 and PW8 and taken by A1 was
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