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PETITIONER: BILAL AHMED KALOO

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       06/08/1997

BENCH: A. S. ANAND, K. T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                 THE 6TH DAY OF AUGUST, 1997 Present:               Hon’ble Dr. Justice A. S. Anand               Hon’ble Mr. Justice K. T. Thomas S. k. Bhattacharya, Adv for the appellant Guntur Prabhakar,  Adv. for  the Respondent and Appellant in Crl. A. No, 81/97                 J U D G M E N T / O R D E R      The  following   Judgment/Order  of   the   Court   was delivered:                       J U D G M E N T THOMAS. J      Bilal Ahmed  Kaloo, a  Kashmiri youth  had a sojourn in 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 he  was convicted  of Sedition  under Section  124-A of Indian Penal  Code and  was sentenced  to  imprisonment  for life,  besides  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  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 exhorted them to undergo training in  armed  militancy  and  offered  them  arms  and ammunitions. He  himself 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 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  appellant 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

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after recording his confessional statement the police seized a revolver  and two  cartridges which  were produced by him. After investigation  was completed  he was  challaned before the  Designated   Court  at  Hyderabad  for  offences  under Sections 124-A,  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 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 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  him  would  stand  or  fall depending on the 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 Indian into  hatred or  contempt etc. In 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  charger framed against the appellant contains no averment  that   appellant  did   anything  as  against  the Government.      A Constitution  Bench of  this Court has stated the law in Kedar  Nath Singh  vs. State  of Bihar(AIR 1962 SC 955 at page 967) as under:      "Now the expression ’the Government      established  by   law’  has  to  be      distinguished by  law’  has  to  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  law      is an  essential condition  of  the      stability of the State. That is why      ’section’, 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      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

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    incitement to violence."      As the  charge framed  against the appellant is totally bereft of the crucial allegation that appellant did anything with reference  to the  Government it  is  not  possible  to sustain the  conviction of  the appellant under Section 124A IPC.      Evidence of  the prosecution relating to offences under Section 153A  and 505(2)  IPC consists  of oral testimony of certain witnesses  who claimed  that appellant  was  telling others  that   the  Army   personnel  have  been  committing atrocities  on Muslims in Kashmir. Among those witnesses PW- 7, PW-7  and PW-13 were not cross-examined at all. Accepting their evidence,  it can  be held without any difficulty that prosecution has  established 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 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 1996. 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 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      maintenance   of    harmony.-   (1)      Whoever      (a)  by  words,  either  spoken  or      written, or  by signs or by visible      representations    or    otherwise,      promotes or attempts to promote, on      grounds of religion, race, place of      birth, residence,  language,  caste      or commuity  or  any  other  ground      whatsoever, disharmony  or feelings      of  enmity,   hatred  or   ill-will      between    different     religious,      racial, language or regional groups      or castes or communities, or      (b)  commits   any  act   which  is      prejudicial to  the maintenance  of      harmony      between      different      religious,  racial,   language   or      regional  groups   or   castes   or      communities, and  which disturbs or      is likely  to  disturb  the  public      tranquillity, or ..........................      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      statement  or   report   containing      rumour or alarming news with intent      to create  or promote,  or which is

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    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  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 or  regional  groups  or castes or  communities. Section  153A covers  a case where a person by  "words, either  spoken or written, or by signs or by visible  representations" promtes  or attempts to promote such  feeling.  Under  Section  505(2),  promotion  of  such feeling should  have been  done by  making and publishing or circulating any  statement or  report congaining  rumour  or alarming news.      This Court  has held  in Balwant  Singh and another vs. 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.      The main  distinction between  the two offences is that publication of  the word  or representation is not necessary under the  former, such  publication is  sine qua  non under Section  505.   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 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 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.  The  fact  that  both sections were  included as  a package  in the  same amending enactment lends further support to the said construction.      Yet another  support to the above interpretation can be gathered from  almost similar  words used  in Section 199 of the  Penal   Code  as  "whoever  by  words.........makes  or publishes any imputation......."      In Sunilakhya  Chowdhury vs.  H.M. Jadwet  and  another (AIR 1968  Calcutta 266)  it has  been held  that the  words "makes or publishes any 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.      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 atleast two such groups or communities  should  be  involved.  Merely  inciting  the felling of  one community  or group without any reference to any other  community or  group cannot  attract either of the two sections.

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    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.      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 organizations in  the wake  of series  of bomb  blasts which 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 interrogated  appellant produced one revolver (MO1) and  two cartridges  (MO2 &  MO3). 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.      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.      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.      We are  not impressed by the said contention and we may point out  that appellant made no allegation at any stage of the case  that the revolver and the cartridges 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 and  academic  possibility need not  be consonance  by us in this case because even the accused has  no case  that they  were  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.      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  of law  and he is thus 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 and  sentence passed  on the appellant for offences  under Section  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

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undergone the  sentence  passed  on  him  under  section  25 (1B)(a) of the Arms Act and is 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  Section 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 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  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.