UNION OF INDIAversusYASMEEN MOHAMMAD ZAHID @ YASMEEN

996                      [2019]REPORTS
               SUPREME COURT    10 S.C.R. 996             [2019] 10 S.C.R.


A                               UNION OF INDIA
                                       v.
              YASMEEN MOHAMMAD ZAHID @ YASMEEN
                      (Criminal Appeal No.1199 of 2019).
B                              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 Activities
C     (Prevention) Act, 1967 – Conviction under – By trial/Special Court
      – Sentenced to three years RI on one count and seven years RI on
      four counts – High Court acquitted the accused u/s.125 IPC and
      ss.39 and 40 of the Act – Conviction u/s. 120B IPC and s.38 of the
      Act was upheld while reducing the sentence to one year and three
      years respectively – Appeal of State challenging the acquittal order
D
      and reduction of sentence – Appeal by accused challenging
      conviction order – Held: Evidence on record point to the existence
      of mens rea and hence conviction u/s.120B IPC and s.38 of the Act
      was correct – But the offences u/ss. 125 IPC and ss.39 and 40 of
      the Act are not made out, hence acquittal thereunder affirmed –
E     However, reduction of sentence by High Court on the ground of
      sympathy is not sustainable – Therefore, sentence of thRee years
      and 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 39
F     and their fields of operation are different – On investigation of
      s.38, s.39 does not become superfluous.
            Partly allowing the appeal of the State and dismissing that
      of the accused, the Court

G           HELD: 1 The evidence on record, establishes that A1 was
      propagating the ideology of IS and advocating, among other
      things, war against non-Muslims; that the classes were attended
      by A2 (appellant-accused) that the videos relating to such
      speeches were found on her person when she was arrested; and
      that she was attempting to go to Afghanistan at the instance of
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                                    996
          UNION OF INDIA v. YASMEEN MOHAMMAD                             997
                   ZAHID @ YASMEEN

A1. These features definitely point to the existence of mens rea.        A
The Courts below were therefore absolutely right in recording
conviction against A2 in respect of offences under Section 120B
IPC 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 the         B
High Court was right in observing that there was evidence to
prove that A2 had attended classes of Jihad propagating ISIS
ideology by original Accused No.1 but there was nothing to indicate
that she had taken any steps to wage a war or had attempted or
abetted waging of such war against any Asiatic Power in alliance
with or at peace with Government of India and as such there was          C
no 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 elements
in respect of which there is no material evidence on record. For
Section 39 of the Act to get attracted, support to a terrorist           D
organisation must be within the 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. The acquittal      E
in respect of charges under Sections 39 and 40 was therefore
rightly recorded by the High Court. [Para 16] [1004-D-E]
      4. The High Court was not right in observing “if a person
is punishable under Section 38, Section 39 becomes superfluous”.
The scope of these two Sections and their fields of operation are        F
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. [Para 17] [1005-F-G]                                       G
      5. The only ground that weighed with the High Court while
reducing the sentence was sympathy. Even at the time of arrest
of the appellant-accused, while leaving for Afghanistan, certain
objectionable material was found on her person. The intensity of
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998            SUPREME COURT REPORTS                       [2019] 10 S.C.R.


A     her participation and involvement were clearly made out. In the
      circumstances, there was no room for invoking sympathetic
      considerations. The quantum of sentence imposed by the trial
      court was absolutely correct and adequate. [Para 19][1004-H;
      1005-A]
B           State of Kerala v. Raneef (2011) 1 SCC 784 : [2011] 1
            SCR 590 – distinguished.
            Arup Bhuyan v. State of Assam (2011) 3 SCC 377 :
            [2011] 2 SCR 506 – referred to.
                              Case Law Reference
C
            [2011] 1 SCR 590             distinguished          Para 12
            [2011] 2 SCR 506            referred to             Para 14
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No.1199 of 2019
D          From the Judgment and Order dated 04.10.2018 of the High Court
      of 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, Zulfiker
E     Ali 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.
F           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
G     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.
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          UNION OF INDIA v. YASMEEN MOHAMMAD                                    999
         ZAHID @ YASMEEN [UDAY UMESH LALIT, J.]

       3. The case of the prosecution, in brief, was as under:                  A
       (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
      (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-                   C
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.                                 D
      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                E
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           F
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           G
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.
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1000            SUPREME COURT REPORTS                        [2019] 10 S.C.R.


 A            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
 B
       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:-
 C
             “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 with reference to IS and the Jihad,
 D           which according to them was a war against non Muslims………
             The prosecution has thus proved that the account ending with 251
             is of Sonia Sebastian who is the wife of the 1st accused and the
             amount was withdrawn from the said account on various dates
             from 3.6.2016 to 22.07.2016 by the 2nd accused. Contention is
 E           that the money was deposited by A1 in the account of Sonia
             Sebastian and the ATM card given to Sonia Sebastian was used
             by A2 for collecting the amounts. It is stated that the CCTV
             footage would show that the 2nd accused has withdrawn money
             from the bank accounts.
 F           The 2nd accused was arrested on 1.8.2016 and she was under
             judicial custody in Kannur women prison. At the time of admission,
             her personal belongings were entered in a register. Among the
             articles, there were two Idea SIM cards. The SIM cards were
             seized by PW41 as per P29 mahazar and produced as MO13 and
 G           MO14. The articles also contained a memory card marked as
             MO15. The memory card contained revelation videos and videos
             relating to ISIS, audio speech of Anwar Alwaki, a brief guide to
             Islamic State and women of Islamic State. This according to the
             prosecution further proved that she was preparing to go to
             Afghanistan at the instance of the 1st accused. When these facts
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         UNION OF INDIA v. YASMEEN MOHAMMAD                                  1001
        ZAHID @ YASMEEN [UDAY UMESH LALIT, J.]

      are proved, the question is whether the accused had committed          A
      any such offence.”
       In the backdrop of these proved facts, the High Court then
considered whether the offences alleged against A2-Yasmeen under
the aforesaid five counts were made out. It was observed that there
was evidence to prove that A2 had attended classes of Jihad propagating      B
ISIS ideology by original Accused No.1 but there was nothing to indicate
that she had taken any steps to wage a war or had attempted or abetted
waging of such war against any Asiatic Power in alliance with or at
peace with Government of India and as such there was no material to
sustain the charge under Section 125 IPC. As regards charge under
Section 38 of the UAPA it was observed as under:                             C

      “There is evidence to prove that the 2nd accused was associated
      with A1 who propagated ISIS ideology and had gone even to the
      extent of joining him. Her attempt to proceed to Afghanistan was
      with a clear intention to meet 1st accused and to involve in IS
      related activities. Therefore she is punishable under Section          D
      38(2).”
      8. In respect of charge under Section 39 of the UAPA the High
Court found that though A2 was certainly influenced by the ideology
professed by A1, she herself had not arranged any of the acts falling
under Clauses (a) to (c) of Section 39. The High Court went on to            E
observe as under:
      “She had already become a member of the organization as
      contemplated under Section 38 of the Act. If a person is
      punishable under Section 38, Section 39 becomes superfluous.”
                                                                             F
       9. As regards charge under Section 40 of the UAPA, the High
Court found that she was not raising any funds for terrorist organisation;
the amounts she received were for personal use and for purchasing
tickets for travel and other arrangements for herself and for her son and
as such charge under Section 40 of the UAPA was not made out.
                                                                             G
      10. Concluding that A2-Yasmeen was guilty of the offences
punishable under Section 120B IPC and Section 38 of the UAPA, the
High Court considered the case with a lenient view and reduced the
substantive sentences in respect of these two offences as stated
hereinabove.
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1002                SUPREME COURT REPORTS                        [2019] 10 S.C.R.


 A            11. In these appeals we heard Mr. K.M. Natraj, learned Additional
       Solicitor General for Union of India and Mr. Santosh Krishnan learned
       Advocate for A2-Yasmeen. According to the learned Additional Solicitor
       General, the material on record established the role played by A2-
       Yasmeen beyond any doubt and her acquittal in respect of offences
       punishable under Section 125 IPC and Sections 39 and 40 of the UAPA
 B
       was incorrect and in any case there was no reason to reduce the
       substantive sentence in respect of offences under Section 120B IPC
       and Section 38 of the UAPA. Mr. Santosh Krishnan, learned Advocate
       for A2-Yasmeen not only supported the judgment of the High Court in
       respect of acquittal under Section 125 IPC and Sections 39 and 40 of
 C     the UAPA but submitted that A2 deserved acquittal even in respect of
       Section 120B IPC and Section 38 of the UAPA. Relying upon the
       decisions of this Court in Arup Bhuyan v. State of Assam1 and State of
       Kerala v. Raneef2 it was submitted that for an offence under Section
       38 of the UAPA to get attracted the prosecution must establish requisite
       mens rea. He further submitted that in order to attract Sections 39 and
 D
       40 of the UAPA there must be material indicating that the acts in question
       were done by the accused in order to further the activity of a terrorist
       organisation.
             12. In State of Kerala v. Raneef2, a practising Dentist was alleged
       to have given medical aid to a wounded accused and the matter arose
 E     from the order of the High Court granting bail to said Dentist. While
       affirming the order of the High Court, it was observed,
                 “7. At this stage we are not expressing any opinion as to whether
                 the allegations in the versions of the prosecution or defence are
                 correct or not, as evidence has yet to be led. However, we would
 F               like to make certain observations.
                 8. We are presently only considering the bail matter and are not
                 deciding whether the respondent is guilty or not. Evidence has yet
                 to be led and the trial yet to commence. Hence the prosecution is
                 yet to establish by proof beyond reasonable doubt that the
 G               respondent was part of a conspiracy which led to the attack on
                 Prof. Jacob. The case against the respondent is very different
                 from that against the alleged assailants. There is no allegation
                 that the respondent was one of the assailants. We are of the opinion
       1
           (2011) 3 SCC 377
 H     2
           (2011) 1 SCC 784
         UNION OF INDIA v. YASMEEN MOHAMMAD                                   1003
        ZAHID @ YASMEEN [UDAY UMESH LALIT, J.]

      that at this stage there is no prima facie proof that the respondent    A
      was 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 Hippocratic
      oath to attempt to heal a patient. Just as it is the duty of a lawyer
      to defend an accused, so also it is the duty of a doctor to heal.       B
      Even a dentist can apply stitches in an emergency. Prima facie
      we are of the opinion that the only offence that can be levelled
      against the respondent is that under Section 202 IPC, that is, of
      omitting to give information of the crime to the police, and this
      offence has also to be proved beyond reasonable doubt. Section
      202 is a bailable offence.”                                             C

       13. Mr. Krishnan, however relied upon certain observations in
said decision to submit that mere membership of an unlawful organization
was not enough and there must be clear proof that the accused intended
to accomplish the aims of the organization by resort to violence. Those
observations were made while considering the matter in the context of         D
order of release on bail during trial which is clear from paragraphs 10
and 15 of the decision.
      14.In the case of Arup Bhuyan v. State of Assam1, the only
material against the concerned accused was his confession to the police
in which he had identified the house of the deceased and it was observed:-    E

      “7. In the instant case, the prosecution case mainly relies on the
      alleged confessional statement of the appellant made before the
      Superintendent of Police, which is an extra-judicial confession
      and there is absence of corroborative material. Therefore, we
      are of the opinion that it will not be safe to convict the accused on   F
      the basis of alleged confessional statement.”
      The subsequent portion of the decision, where the earlier decision
in State of Kerala v. Raneef2 was considered, was relied upon by
Mr. Krishnan.
                                                                              G
       15. The evidence on record, as culled out by the High Court in the
observations quoted hereinabove establishes that A1 was propagating
the ideology of IS and advocating, among other things, war against non-
Muslims; that the classes were attended by A2-Yasmeen; that the videos

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1004             SUPREME COURT REPORTS                           [2019] 10 S.C.R.


 A     relating to such speeches were found on her person when she was
       arrested; and that she was attempting to go to Afghanistan at the instance
       of A1. These features definitely point the existence of mens rea. The
       Courts below were therefore absolutely right in recording conviction
       against A2 in respect of offences under Section 120B IPC and Section
       38 of the UAPA. The submissions advanced by Mr. Krishnan, therefore,
 B
       cannot be accepted and the appeal preferred by A2-Yasmeen must fail.
               16. We now turn to the appeal preferred by the Union to see
       whether the acquittal of A2 for offences under Section 125 of IPC and
       Sections 39 and 40 of the UAPA was justified. As regards the offence
       under Section 125 of the IPC, the matter was rightly appreciated by the
 C     High Court and we are in complete agreement with the view taken by
       the High Court.
                 Coming to Sections 39 and 40 of the 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
 D     terrorist organisation must be within the 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. The acquittal in respect
 E     of charges under Sections 39 and 40 was therefore rightly recorded by
       the High Court.
              17.We must however state that the High Court was not right in
       observing “if a person is punishable under Section 38, Section 39 becomes
       superfluous”. In our view, the scope of these two Sections and their
 F     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.
 G
             18. Lastly, we come to the quantum of sentence in respect of
       offences where A2-Yasmeen has been found guilty by both the Courts.
              19. The only ground that weighed with the High Court while
       reducing the sentence was sympathy. The material on record indicates
       the role played by A2-Yasmeen. Even at the time of her arrest, while
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          UNION OF INDIA v. YASMEEN MOHAMMAD                                   1005
         ZAHID @ YASMEEN [UDAY UMESH LALIT, J.]

leaving for Afghanistan, certain objectionable material was found on her       A
person. The intensity of her participation and involvement were clearly
made out. In the circumstances, there was no room for invoking
sympathetic considerations. The quantum of sentence imposed by the
trial court was absolutely correct and adequate.
         20. In the premises,                                                  B
        A] Appeal preferred by A2-Yasmeen challenging her conviction
and sentence under Section 120B IPC and Section 38 of the UAPA is
dismissed.
        B] Appeal preferred by the Union challenging the acquittal of
A2-Yasmeen in respect of offences under Section 125 of the IPC and             C
Sections 39 and 40 of the UAPA is dismissed.
         C] Appeal preferred by the Union as regards reduction of
sentence awarded to A2-Yasmeen for offences under Section 120B
IPC and Section 38 of the UAPA is allowed. The order passed by the
High Court in that behalf is set aside and the sentence imposed by the         D
trial court in respect of offences under Section 120B IPC and Section
38 of the UAPA against A2 is restored.
         21. Appeals stand disposed of, in aforementioned terms.

                                                                               E
Kalpana K. Tripathy                                     Appeals disposed of.




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