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2019 Supreme(Mad) 3297
IN THE HIGH COURT OF MADRAS
P.N. PRAKASH, J.
Samimul Islam and Ors. - Appellants
Versus
State - Respondent
Crl. A. Nos. 306, 392 of 2012 and Crl. M.P. No. 59449 of 2019
Decided On : 19-12-2019
For the Appellant : R. Sankarasubbu and D. Ashok Kumar for C. Vijayakumar.
For the Respondents:P. Kritika Kamal, Government Advocate.
Headnote:
Criminal Procedure Code, 1908 – Facts distilled from the evidence on record are crystallised – Inspector of Police, B3, Kattur Police Station was oh rounds with his subordinates in the afternoon in the Gandhipuram area – In the junction of Gandhipuram IV Street and 100 ft. road, there is a mosque. Sundar Rajan (P.W. 14) and his team observed two persons outside the mosque displaying some printed materials to the worshipers coming out of the mosque – When the police party neared them, the duo tried to slip out – They were apprehended and when questioned, they disclosed their name as Shah Jahan (A.6) and Abu Tahir (A.7) –Held, No doubt, the fact that, Shah Jahan (A.5) was found distributing issues of SIM newsletters outside the mosque, has been satisfactorily established by the prosecution via the evidence of Balasubramaniam (P.W. 1), Vijay (P.W. 2) and Sundar Rajan (P.W. 14), however, from the possession of Shah Jahan (A.5), a letter of SIM addressed to him (A.5) was seized and it has been marked as Ex. P.27. A reading of the said letter (Ex. P.27) shows that Shah Jahan (A.5) was appointed as sales agent-cum-distributor of SIM newsletters and he has been asked to remit the sale proceeds to the office. Concededly, the impugned articles were only part of the SIM newsletters which do contain other articles and write-ups too – Those articles and write-ups relate to ordinary religious topics and other allied news items – It is not the case of the prosecution that Shah Jahan (A.5) was distributing the two impugned articles alone in the form of pamphlets or leaflets – Criminal appeals are allowed.
JUDGMENT :
P.N. Prakash, J.
1. Since these criminal appeals emanate from the same judgment and FIR, they are considered and decided by this common judgment.
2. The facts distilled from the evidence on record are crystallised as under:
2.1 Sundar Rajan (P.W. 14), Inspector of Police, B3, Kattur Police Station was oh rounds with his subordinates in the afternoon of 25.06.1999 in the Gandhipuram area. In the junction of Gandhipuram IV Street and 100 ft. road, there is a mosque. Sundar Rajan (P.W. 14) and his team observed two persons outside the mosque displaying some printed materials to the worshipers coming out of the mosque. When the police party neared them, the duo tried to slip out. They were apprehended and when questioned, they disclosed their name as Shah Jahan (A.6) and Abu Tahir (A.7).
2.2. On verifying the hand outs in their possession, the police found them to be prima facie offending the State and therefore, in the presence of one Balasubramaniam (P.W. 1) and Ravindran (not examined), Sundar Rajan (P.W. 14) seized from Shah Jahan (A.6), the following items:
a. 10 copies of the June 1999 issue of Students Islamic Movement (for brevity "SIM") newsletter (Ex. P.25);
b. a letter addressed to Shah Jahan (A.6) from SIM (Ex. P.27);
c. An unposted letter from Shah Jahan (A.6) addressed to Syed Abdur Rahman (A.2) relating to SIM (Ex. P.28); and
d. 10 copies of the May 1999 issue of SIM newsletter (Ex. P.43) found along with 10 copies of the June 1999 issue of SIM newsletter (Ex. P.25).
2.3. Similarly, Sundar Rajan (P.W. 14) seized from Abu Tahir (A.7), the following items:
a. 7 copies of the June 1999 issue of SIM newsletter (Ex. P.26);
b. 7 copies of the May 1999 issue of SIM newsletter (Ex. P.44) found along with 7 copies of the June 1999 issue of SIM newsletter (Ex. P.26),
The above seizures were effected under the cover of mahazar (Ex. P.1).
2.4. After the seizure, Sundar Rajan (P.W. 14) arrested Shah Jahan (A.6) and Abu Tahir (A.7) and brought them to the police station. He registered a case in Cr. No. 722 of 1999 on the same day, i.e., 25.06.1999, under Section 124-A IPC, based on the names disclosed in the newsletters, against S.H.M. Mohideen (A.1), author of the articles, Samimul Islam (A.2), Editor of SIM newsletter, Syed Abdur Rahman (A.3), Editor in-charge, Syed Mohammed (A.4), Administrator, Khader Babha (A.5), Layout Designer, Shah Jahan (A.6) and Abu Tahir (A.7) and prepared the printed FIR (Ex. P.13).
2.5. Thereafter, Sundar Rajan (P.W. 14) searched the house of Abu Tahir (A.7) between 6.15 p.m. and 7.15 p.m. on the same day and did not recover any incriminating material vide search list (Ex. P.14). He also searched the house of Shah Jahan (A.6) between 7.30 p.m. and 8.00 p.m. and did not recover any incriminating material vide search list (Ex. P.15). Thereafter, Shah Jahan (A.6) and Abu Tahir (A.7) were produced before the jurisdictional Magistrate who sent them to judicial custody.
2.6. After reading the articles in the SIM newsletters, Sundar Rajan (P.W. 14) altered the penal provision in the FIR by including Section 153-B vide alteration report (Ex. P16). On 14.07.1999, Sundar Rajan (P.W. 14) obtained a search warrant and searched the premises of SIM at No. 81, Angappa Street, Chennai 600 001, Mannadi in the presence of witnesses Upendra Babu (P.W. 5) and Abdul Wadood (not examined).
2.7. From the office of SIM, the following items were seized under search list (Ex. P.3):
a. 5 copies of the May 1999 issue of SIM newsletter (Ex. P.45);
b. 5 copies of the June 1999 issue of SIM newsletter (Ex. P.46);
c. 1 copy each of the January and February 1999 editions of A1 Haznath of Sri Lanka Jamath (Ex. P.47);
d. Photocopy of the back cover of Ex. P.47 (Ex. P.48);
e. Tamil manuscript of the article titled 11 pages (Ex. P.49);
f. Resignation letter dated 10.04.1999 of Shah Jahan (A.6) from SIM (Ex. P.50);
g. A book in Urdu titled "Maulana Mufti Mohammed Kapoor Rai Haan Sahib" (Ex. P.51); and
h. Essay containing the Tamil translation of Ex.
