High Court · 2009

In so far as the first question is concerned, the precise argument advanced on b ehalf of the appellants is that the DHD (J) organization is a banned organizatio n under the Act of 1967. It is submitted that the said organization is not inclu ded in the schedule of Terrorist Organizations under the Act of 1967 and therefo re, even if the allegations of providing fund or harboring members of the DHD (J ) is accepted to be correct, the same would amount to commission of an offence p unishable under Section 10(a) of the Act which is a bailable offence. In so far as the second limb of the argument is concerned, the Court may take no te of the provisions contained in Section 43(D) of the Act of 1967, by which und er sub-section (2) reference to ’fifteen days’, ’ninety days’ and ’sixty days’ o ccurring in Section 167 of the Code of Criminal Procedure is required to be cons trued as ’thirty days’, ’ninety days’ and ’ninety days’ respectively. Section 43 (D)(2) of the Act of 1967 provides that in a situation when it is not possible t o complete the investigation within 90 days, the Court may, if it is satisfied f rom the report of the Public Prosecutor indicating the progress of investigation , the period of 90 days can be extended upto 180 days. It appears from the mater ials on record that after the expiry of the initial period of 90 days, the accus ed have been remanded to custody by order dated 28.8.2009 of the learned Special Court for a period of another 60 days. Learned counsels for the appellants have contended, as already noticed, that the y have been in custody for long and further custodial interrogation is not requi red. It has also been submitted that there has been no interrogation of the accu sed while in custody. Specifically arguing for the appellant, Sri Mohit Hojai, S ri B K Mahajan, learned counsel has contended that recovery of the amount of rup ees one crore, which is alleged to have been collected for being handed over to the DHD (J) has been made and therefore, further custody of the said appellant i s not required. It has also been submitted by Sri Mahajan that appellant Mohit H ojai has been arrested on the basis of the statement of a co-accused, which is a n extremely weak piece of evidence. Mr. D K Das, learned Public Prosecutor has placed before the Court the relevant part of the case diary in original as well as the report of the Investigating Of ficer of the case showing the progress of investigation till date. Under the Act of 1967 a terrorist act has been defined by Section 15. Reading th e cognate provisions of the Act, we are unable to take the view that a terrorist act can be committed only by a terrorist organization which is included in the schedule to the Act. Beyond the above, it would not be prudent to record any vie ws at this stage as the same may cause prejudice the accused persons in the tria l. However the aforesaid satisfaction that has been generated would be sufficient t o lead us to the conclusion that the submissions advanced on behalf of the appel lants to the effect that providing funds to a banned organization cannot attract the provisions of Sections 17, 18 and 19 of the Act is wholly unacceptable. Coming to the other limb of the argument advanced on behalf of the appellants, w e have found from the case diary that the investigation of the case is still on and vigorous investigations have been made even after the date of the order of t he learned Special Court dated 14.8.2009. In such circumstances and when the law provides for completion of the investigation within the extended period of 180 days, merely because the accused have been in custody for 112 days, the same wil l not entitle them to be released on bail. In so far as the accused Redaul Hussain Khan is concerned, a supplementary affid avit has been filed today indicating certain precarious circumstances which acco rding to the appellant would entitle him to be released on bail. We have taken n ote of the facts, stated in the aforesaid supplementary case diary and it is our considered view that except the fact that the mother of the appellant is presen tly in Hospital in a critical condition (as certified by the Doctor) due to a he art attack, the other circumstances cannot, by any means, be understood to be mi tigating circumstances. The mother of appellant Redaul Hussain Khan is 70 years old and she is in a crit ical condition in a local Hospital at Guwahati. In these circumstances, the Cour t is of the view that the appellant in Crl. Appeal No.148/09 (Redaul Hussain Kha n) should be immediately allowed to visit his mother for a period of 2 hours und er Police escort and supervision of the Investigating Team. The Investigation Of ficer will so act without any delay. A specific issue with regard to the case of the appellant in Crl. Appeal No.150/ 09 Md. Sameer Ahmed will be required to be dealt with by us. The charge against the said accused is one of harboring two members of the DHD (J) Group including its Chairman one Jowel Garlosa. We have perused the materials placed before us in this regard by the Investigati on Agency and on consideration of such materials, we are unable to come to the c onclusion that the said materials are sufficient for us to record a prima facie view that the allegations leveled are not correct. The aforesaid additional obse rvation in the case of the particular appellant has been felt necessary as the m aterials placed before us discloses that no investigation of the case, in so far as aforesaid accused is concerned, has been carried out by the Investigation Ag ency after the order dated 14.8.2009 passed by the learned Special Court rejecti ng the prayer for bail made by the aforesaid appellant. In the result, all the 3 appeals are found to be without any merit and substance . They are accordingly dismissed subject to the observations made in Crl. Appeal No.148/09.