BILAL AHMAD KALOOversusSTATE OF ANDHRA PRADESH

                       BILAL AHMAD KALOO                                       A
                                    v.
                   STATE OF A)'IDHRA PRADESH

                            AUGUST 6, 1997

             [DR. A.S. ANAND AND K.T. THOMAS, JJ.]
                                                                               B

      Criminal Law :

      Indian Penal Code, 1860 :

       Section 124(A)-Seditio11-C/1arge framed-No avennents-Hel~To­
                                                                               c
tally bereft of the cmcial allegation-Conviction unsustainable.

      Sections 153A, 505(2)-0ffence under-Distinction betwem-Promot-
ing enmity between two groups or communities-Meaning and scope of the
expressioH-nens rea-Essential ingredients of-Explained.                        D
     Anns Act, 1959:                               ,
      Section 25( IB )(a)-Possession of Anns is violation of law-Conviction
upheld.
                                                                               E
      The prosecution case was that the appellant was an active member in
one militant organisation and he had spread communal hatred among
muslims and exhorted them to undergo training in armed militancy.
During ihe period, when series of bomb blasts occured, the police kept a
cfose watch on the activities of the appellant and his organisation. The
appellant was arrested on 19.1.1994. After recording his confessional state-   F
ment, the police seized a revolver and catridges which were produced by
him.

      On the basis of the evidence adduced, on behalf of _the prosecution,
the Trial Court convicted the appellant under Section 124-A IPC and            G
sentenced him to undergo imprisonment for life. The appellant was also
convicted and sentenced to three years rigorous imprisonment under Sec-
tions 153(A), 505(2) IPC and Section 25 of the Arms Act, 1959. Hence this
appeal.

     Partly allowing the appeal, this Court                                    H
                                   327
    328                   SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A         HELD : 1.1. The decisive ingredient for establishing the offence of
    sedition under section 124-A IPC is the doing of certain acts which would
    bring the Government established by law in India into hatred or contempt.
    In the instant case, the charge framed against the appellant is totally bereft
    of the crucial allegation that appellant did anything with reference to the
B   Government, it is not possible to sustain the conviction under Section 124
    A IPC. [330F-G; 331-D]

          Kedar Nath Singh v, State of Bihar, AIR (1962) SC 955, relied on.

          2.1. Mens rea is a necessary ingredient for the offence under Section
C   153-A. Mens rea is an equally necessary postulate for the offences under
    Section 505(2) also as could be discerned from the words "with intent to
    create or promote or which is likely to create or promote" as used in that
    sub-section. [333-B-C]

          2.2. The common feature in Section 153(A) and Section 505(2) being
D promotion of feeling of enmity, hatred, or ill-will between different
    religious or racial or language or regional groups or castes and com-
    munities, it is necessary that atleast two such groups or communities
    should be involved. Merely inciting the feeling of one community or group
    without any reference to any other community or group cannot attract
E   either of the two sections. In this case, appellant has not done anything
    against any religious, racial or linguistic or regional group or community
    and so he cannot be held guilty of either of the offences under Section 153
    or 505(2) of l.P.C. [334-A-C]

p        2.3. The main distinction between the two offences is that while
  publication of the words -or representation is not necessary under the
  former, such publication is sine qua non under Section SOS. The words
  "whoever makes, publishes or circulates" used in the setting of Section
  505(2) cannot be interpreted disjunctively but only as supplementary to
  each other. If it is construed disjunctively any one who makes a statement
G falling within the meaning of section 505 would, without publication or
  circulation be liable to conviction. But the same is the effect with section
  153 A also and then that section would have been bad for redundancy. The
  intention of the legislature in providing two different sections on the same
  subject would have been to cover two different fields of similar colour.
H                                                                   [333-D-EJ
                            BILAL AHMAD KALOO v. STATE                       329

            Ba/want Singh and Another v. State of Punjab, (1995] 3 SCC 214 and A
      Sunilakhya Chowdhary v. H.M. Jodwat and Another, AIR (1968) Cal 266,
      relied on.

             3.1. Appellant was in possession of arms and ammunication in
      violation of law and liable to be convicted under Section 25(1-B)(a) of
      Indian Arms Act. Hence the sentence awarded by the Trial Corut needs no B
      interference. (335-D]
;;

            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1391 of 1995.

           From the Judgment and Order dated 18.9.95 of the 1st Additional
                                                                                   c
      Metropolitan Sessions Court, at Hydrabad in Andhra Pradesh in S.C. No.
      291of1994.

               S.K. Bhattacharya for the Appellant.
                                                                                   D
               Guntur Prabhakar, for the Respondent and Appellant in Crl. A. No.
      81/97.

               The following Judgment/Order of the Court was delivered:

            THOMAS, J. Bilal Ahmad Kaloo, a Kashmiri youth had a sojourn in        E
      the city of Hyderabad and was involved in a prosecution under Terrorist
      and Disruptive Activities (Prevention) Act, 1987, (for short 'TADA').
      Though the Designated Court under TADA has acquitted him of the
      offences under TADA he was convicted of Sedition under Section 124-A
      of Indian Penal Code and was sentenced to imprisonment for life, besides     F
      being convicted of certain other lesser offences for which a sentence of
      rigorous imprisonment for three years was awarded under each count. This
      appeal has been preferred by the· said convicted person under Section 19
      of the TADA.
,,                                                               /


            The case against the appellant in short is the following.· Appellant G
      was an active member of a militant outfit called Al- Jehad which was
      formed with the ultimate object of liberating Kashmir from Indian Union .
..•   With this in mind appellant spread communal hatred among the Muslim
      youth in the old city of Hyderabad and exhorte_d them to undergo training
      in armed militancy and offered them arms and ammunitions. He himself H
    330                  SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A was in possession of lethal weapons like country-made revolver and live
    cartridges. He was propagating among the Muslims that in Kashmir
    Muslims were being subjected to attrocities by the Indian Army personnel.

           During the period when series of bomb-blasting occurred in the city
    of Hyderabad the police kept a close watch on the activities of the appel-
B   !ant who was then staying in a room adjacent to Masjid-e-Niyameth Kha-
    e-ali at Mir-ka-Daira at Haribowli in Hyderabad. He was arrested on
    19-1-1994 and after recording his confessional statement the police seized
    a revolver and two cartridges which were produced by him. After inves-
    tigation was completed he was challenged before the Designated Court at
C   Hyderabad for offences under Section 124-A, 436, 153-A and 505(2) IPC,
    and under Sections 3(3), 4(3) and 5 of the TADA, and also under Section
    25 of the Indian Arms Act.

          As mentioned above the Designated Court acquitted him of the
    offences under TADA but convicted him of the offences under the Indian
D   Penal Code and also under Section 25 of the Indian Arms Act and was
    sentenced as aforesaid.

           While dealing with the offences of which appellant was convicted
    there is no question of looking into the confessional statement attributed
E   to him, much less relying on it since he was acquitted of all offences under
    TADA. Any confession made to a police officer is inadmissible in evidence
    as for these offences and hence it is fairly conceded that the said ban would
    not wane off in respect of offences under the Penal Code merely because
    the trial was held by the Designated Court for offences under TADA as
    well. Hence the case against hiin would stand or fall depending on the
F   other evidence. ·

        The decisive ingredient for establishing the offence of Sedition under
  Section 124-A IPC is the doing of certain acts which would bring the
  Government established by law in India into hatred or contempt etc. In
G this case, there is not even .a suggestion that appellant did anything as
  against the Government of India or any other Government of the State.
  The charge framed against the appellant contains no averment that appel-
  lant did anything as against the Government.

          A Constitution Bench of this Court has stated the law in Kedar Nath
H   Singh v. State of Bihar, AIR (1962) SC 955 at page 967 as under :
                    BILALAHMAD KALOOv. STATE                             331

        "Now the expression 'the Government established by law' has to          A
        be distinguished from the persons for the time being engaged in
        carrying on the administration. 'Government established by law' is
        the visible symbol of the State. The very existence of the State will
        be in jeopardy if the Government established by law is subverted.
        Hence, the continued existence of the Government established by         B
        law is an essential condition of the stability of the State. That is
        why 'sedition', as the offence in S.124A has been characterised,
        comes, under Chapter VI relating to offences against the State.
        Hence any acts within the meaning of S.124A which have the effect
        of subverting the Government by bringing that Government into
        contempt or hatred, or creating disaffection against it, would be       c
        within the penal statute because the feeling of disloyalty to the
        Government established by law or enmity to it imports the idea of
        tendency to public disorder by the use of actual violence or
        incitement to violence."
                                                                                D
      As the charge framed against the appellant is totally bereft of the
crucial allegation that appellant did anything with reference to the Govern-
ment it is not possible to sustain the conviction of the appellant under
Section 124A IPC.

      Evidence of the prq;ecution relating to offences under Section 153A       E
and 505(2) IPC consists of oral testinioby of certain witnesses who claimed
that appellant was telling others that the Army personnel have been
committing attrocities on Muslims in Kashmir. Among those witnesses
PW-7, PW-12 and PW-13 were not cross-examined at all. Accepting their
evidence, it can be held without any difficulty that prosecution has estab-     F
lished beyond doubt that appellant was spreading the news that members
of the Indian Army were indulging in commission of attrocities against
Kashmiri Muslims. So it is not necessary to advert to the other. evidence
which only repeats what those witnesses said. Hence the question to be
decided now is whether those acts of the appellant would attract the penal      G
consequences envisaged in Section 153A or 505(2) of IPC.

      Section 153A was amended by the Criminal and Election Laws
(Amendment) Act 1969 - Act No. XXXV of 1969. It consists of three
clauses of which clauses (a) and (b) alone are material now. By the same
amending Act sub-section (2) was added to Section 505 of the Indian Penal       H
    332                    SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A Code. Clauses (a) & (b) of Section 153A and Section 505(2) are extracted
    below:

             "153-A. Promoting enmity between different groups on grounds of
             religion, race, place of birth, residence, language, etc., and doing acts
             prejudicial to maintmance of hannony. - (1) Whoever -
B
             (a) by words, either spoken or written, or by signs or b'y visible
             representations or otherwise, promotes or attempts to promote,
             on grounds of religion, race, place of brith, residence, language,
             caste or community or any other ground whatsoever, disharmony
c            or feelings of enmity, hatred or ill-will between different
             religious, racial, language or regional groups or castes or com-
             munities, or

             (b) commits any act which is prejudicial to the maintenance of
             harmony between different religious, racial, language or regional
D
             groups or castes or communities, and which disturbs or is likely to
             disturb the public tranquillity, or



E            shall be punished with imprisonment which may extend to three
             years, or with fine, or with both."

             "505(2) Statements creating or promoting enmity, hatred or ill-will
             between classes.- Whoever makes, publishes or circulates any state-
             ment or report containing rumour or alarming news with intent to
F
             create or promote, or which is likely to create or promote, on
             grounds of religion,. race, place of birth, residence, language, caste
             or community or any other ground whatsoever, feelings of enmity,
             hatred or ill-will between different religious, racial, language or
             regional groups or castes or communities, shall be punished with
G            imprisonment which may extend to three years, or with fine, or
             with both."

          The common ingredient in both the offences is promoting feeling of
    enmity, hatred or ill-will between different religious or racial or linguistic
H   or regional groups or castes or communities. Section 153A covers a case
                   BILAL AHMAD KALOO v. STATE                          333

where a person by "words, either spoken or written, or by signs or by visible A
representations" promot.:s or attempts to promote such feeling. Under
Section 505(2), promotion of such feelings should have been done by
making and publishing or circulating any statement or report containing
rumour or alarming news.
                                                                             B
      This Court has held in Ba/want Singh and Another v. State of Punjab,
[1995] 3 SCC 214 that mens rea is a necessary ingredient for the offence
under Section 153A. Mens rea is an equally necessary postulate for the
offence under Section 505(2) also as could be discerned from the words
"with intent to create or promote or which is likely to create or promote"
as used in that sub-section.                                                 C

       Thp main distinction between the two offences is that while
publication of the words or representation is not necessary under the
former, such publication is sine qua 11011 under Section 505. The words
"whoever makes, publishes or circulates" used in the setting of Section D
505(2) cannot be interpreted disjunctively but only as supplementary to
each other. If it is construed disjunctively, any one who makes a statement
falling within the meaning of Section 505 would, without publication or
circulation, be liable to conviction. But the same is the effect with Section
153A aslo and then that Section would have been bad for redundancy. The E
intention of the legislature in providing two different sections on the same
subject would have been to cover two different fields of similar colour. The
fact that both sections we~e included as a package in the same amending
enactment lends further support to the said construction.

                                                                             F
     Yet another support to the above interpretation can be gathered
from almost similar words used in Section 499 of the Penal Code as
"whoever by words ......... makes or publishes any imputation ......"

      In Sunilakhya Chowdhury v. H.M. Jadwet and Another, AIR (1968)
Calcutta 266 it has been held that the words "makes or publishes any G
imputation" should be interpreted as words supplementing to each other. ·
A maker of imputation without publication is not liable to be punished
under that section. We are of the view that the same interpretation is
warranted in respect of the words "makes, publishes or circulates" in
Section 505 IPC also.                                                     H
    334                   SUPREME COURT REPORTS (1997) SUPP. 3 S.C.R.

A         The common feature in both sections being promotion of feeling of
    enmity, hatred or ill-will "between different" religious or racial or language
    or regional groups or castes and communities it is necessary that alteast
    two such groups or communities should be involved. Merely inciting the
    feeling of one community or group without any reference to any other
B   community or group cannot attract either of the two sections.

          The result of the said discussion is that appellant who has not done
    anything as against any religious, racial or linguistic or regional group or
    community cannot be held guilty of either the offence under Section 153A
    or under Section 505(2) of IPC.
c
          What remains is the offence under Section 25(1B) of the Indian
    Arms Act. PW-1 was the Superintendent of Police of Hyderabad City Zone
    (CID) during the relevant time. He deposed to the fact that he made close
    watch on certain organisations in the wake of series of bomb blasts which
D   rocked that city for a while and on receipt of some vital information about
    the activities of the appellant he. proceeded to the place where he was
    staying, accompanied by two Revenue officials (PW-22 and PW-23). He
    found out appellant in Room No. 2 of the building annexed to Masjid-e-
    Niyameth Kha-e-Ali at Mir-ka-Daira at Haribowli. PW-1 said that on being
E   interrogated appellant produced one revolver (MOl) and two cartridges
    (M02 & M03). Those articles were seized and later they were subjected
    to tests in the Forensic Science Laboratory. PW-16, the Assistant Director
    of that Laboratory has stated in court that the said revolver and cartridges
    were found to be in perfect working condition and he issued a certificate
    to that effect.
F
          PW-14 who was incharge of management of the rooms in the building
    attached to the aforesaid mosque said that appellant was staying in Room
    No. 2 of the building during the relevant time. Trial court found that
    evidence acceptable and we have no reason to dissent from it.
G          Learned counsel for the appellant, however, assailed the prosecution
    case relating to the said revolver and cartridges, on the ground that those
    articles were not sealed after seizure and were left at the Police Station for
    a number of days before they were sent to the Forensic Science Laboratory.

H         We are not impressed by the said contention and we may point out
                    BILALAHMAD KALOOv. STATE                             335

that appellant made no allegation at any stage of the case that the revolver A
and the cartridge were tampered with by the police. Not even a suggestion
was made to any witness in that direction. According to the counsel, since
those articles were not sealed there was the possibility of their being
tampered with. Such an academic possibility need not be countenanced by
us in this case because even the accused has no case that they were B
tampered with. That apart, the particulars of the weapon were given in the
seizure memo and the same tallied with the weapon on examination by the
ballistic expert. There is no challenge to the seizure memo admittedly
prepared at the time of recovery of arms and amunition. The identity of
the weapon thus stands, established beyond any reasonable doubt.
                                                                                c
      Assistant Director of Forensic Science Laboratory conducted
scientific test on the articles and found them to be in working condition.

      We are, therefore, in agreement with the finding recorded by the trial
court that appellant was in possession of arms and amunition in violation       D
of law and he is thu~ liable to be convicted under Section 25(1B)(a) of the
Arms Act. The sentence awarded by the trial court (rigorous imprisonment
for three years) in the circumstances of the case needs no interference.

      In the result, we partly allow this appeal and set aside the conviction   E
and sentence passed on the appellant for offences under Sections 124A,
153A and 505(2) of the Indian Penal Code. We confirm the conviction and
sentence passed on him under Section 25(1B)(a) of the Arms Act. The
appellant shall be released from custody fothwith if he has undergone the
sentence passed on him under section 25 (lB)(a) of the Arms Act and is          F
not wanted in any other case.

       Before parting with this· judgment, we wish to observe that the
manner in which convictions have been recorded for offences under
Sections 153A, 124A and 505(2), has exhibited a very casual approach of
the trial court. Let alone the. absence of any evidence which may attract G
the provisions of the sections, as already observed, even the charges framed
against the appellant for these offences did not contain the essential
ingredients of the offences under the three sections. The appellant strictly
speaking should not have been put to trial for those offences. Mechanical
order convicting a citizen for offences of such serious nature like sedition H
    336                  SUPREME COURT REPORTS (1997] SUPP. 3 S.C.R.

A and to promote enmity and hatred etc. does harm to the cause. It is
    expected that graver the offence, greater should be the care taken so that
    the liberty of a citizen is not lightly interfered with.

           Criminal Appeal No. 81 of 1977.

B          There is no ground for condoning the delay. Hence, we reject this
    petition of appeal.

    P.T.                                                      Appeal allowed.