The conviction for terrorism was upheld based on substantive evidence linking the accused to ISIS activities and intent to procure explosives, with sentencing considerations addressing possible reform.

JUDGMENT :

K. V. Jayakumar, J.

This Criminal Appeal is preferred by the sole accused in S.C. No.2/2017/NIA impugning the judgment of the Special Court for NIA Cases, Ernakulam dated 25.09.2020. The appellant, Subahani Haja @ Abu Jasmine, was charged for the offences punishable under Sections 120B, 122 and 125 of the INDIAN PENAL CODE and Sections 20 , 38 and 39 of the Unlawful Activities (Prevention) Act (‘the UA(P) Act’ for the sake of brevity).

2. The learned Special Judge after a full fledged trial found the appellant guilty, convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,00,000/- with default sentence of one month under Section 20 of the UA(P) Act. He was also sentenced to undergo imprisonment for various terms under the other Sections.

Prosecution case

3. This is a tale of one Subahani Haja, a young man aged 35 years, who joined a proscribed terrorist organisation Islamic State of Iraq and Syria (‘the ISIS’ for the sake of brevity) and fought for them in Mosul in Iraq in the year 2015. During 2015-2017, ISIS captured almost one third of Iraq and established a parallel Government there. The appellant, Subahani Haja, was inspired by the activities of ISIS and had a cherished desire to join ISIS in Iraq. Since there was no airline service to Iraq, the accused had devised a plan to visit Istanbul, Turkey and then to reach Iraq by crossing the border of Turkey with the help of ISIS emissaries. On 08.04.2015, he proceeded to Istanbul, Turkey on a tourist visa for a fortnight. He concealed his objectives from his family members.

4. Thereafter, the appellant crossed the border of Turkey and reached Iraq as per his plan. He got physical training and arms training at Mosul in Iraq. He was deployed on the war front. While so, he sustained an injury during the physical training and was taken to hospital. At that time, he wanted to come back to India. He made several requests to the ‘Amir’ (boss in ISIS). But his requests were turned down. Since he was unable to participate in the war front, he was entrusted with guard duty in ISIS. When he made repeated requests to come back to his native country, he was incarcerated by ISIS. When he pressed his demand to come back to India, he was abandoned by ISIS in a street. Somehow, he arranged money for a return ticket and came back to India in September 2015.

5. After his arrival in India, he worked as a Salesman-cum-Accountant at Gold AIK, Kadayanellur, Tamil Nadu for about one year and resided in a rental house there. While so, NIA got credible information that the accused had joined ISIS, a proscribed terrorist organisation, and involved in activities affecting sovereignty and integrity of India. On 03.10.2016, a search was conducted in his house at Kadayanellur and NIA seized digital evidence, including mobile phones, in connection with his illegal activities. The accused was arrested on 05.10.2016.

The proceedings before the trial court

6. The Special Judge for the trial of NIA cases, after hearing the appellant and the prosecution, framed charges under Sections 120B, 122 and 125 of the INDIAN PENAL CODE and Sections 20 , 38 and 39 of the UA(P) Act. The accused denied the charges levelled against him and pleaded innocence. Thereafter, PWs.1 to 46 were examined and Exts.P1 to P81 were marked. Material objects 1 to 26 were identified and marked. On the side of the defence, Ext.D1 case diary contradiction was marked.

The findings of the learned Special Judge