NAMAD HASSAN BHAGAD AND ORS.

STATE OFGUJARAT AND ORS.

MAY 9, 1996

[A.S. ANAND, K. VENKATASWAMI, JJ.J

Terrorist and Dismptive Activities Prevention Act-Sections 3, 4, 5, 7A Indian Penal Cod~Sections 121, 12JA, 122, 34--Anns Act-25(J)(A)(D), 25(I)(A)(2), 25(J)AA, 25(A)(B), 25(A)(F)-Wireless Telegraph C Act-Sec.211-Bombay Police Act-Section 135(1}-Attachment of property involved in terrorist activity-Property to be attached must be prima-facie having sources of purchase from proceeds of tennrism-Not necessary to attach properties of only those who are involved in the offence under TADA Act.

In the course of investigation in a case booked under the TADA Act, the District Superintendent of Police attached seven ships/vessels invoking powers under Section 87 A of TADA. An application made by the Police to the Designated Judge for confirming the attachment, was opposed by the appellants claiming to be the owners of the ships in question.

The appellants contended that Section 7A of the TADA came into force on and from 22.5.93 and the purchases of all the ships having taken place well before that date, the provisions of TADA cannot be invoked, that none of the owners had ever been arrested either under TADA or under the Customs Act and hence Section 7 A of the TADA is not applicable and that to invoke Section 7 A of TADA there should be knowledge or reasons to believe that properties attached are involved in terrorist activities and that requirement was not satisfied on the facts of the case.

The Public Prosecutor contended that on prima facie case being made out and entertaining reason to believe that the property in question G falls within the mischief of Section 7 A the attachment in question was made, that further inquiry/investigation was still going on regarding all the seven ships to conclusively find as to whether they were involved in smuggling activities or not, and that since some of the persons were absconding and some others were not available, at that stage attachment H could not be revoked and he prayed for confirmation of attachment. 614

N.H. BHAGAD v. STATE[K. VENKATASWAMI, J.] 615

TI1e Designated Judge on being satisfied with the primafacie finding A and on being satisfied with the prima facies case confirmed the attachment by the judgment under appeal. The Designated Court found that there was no mention at all in Section 7 A that the property to be investigated must be the property of an offender against whom the offence under Section 7 A is to be registered and what was required to be established was that the property in relation to which the investigation was made must be having sources of purchase from the amount or proceeds of terrorism or by way of commission of terrorist activity. Therefore, it found that it was not necessary or incumbent upon the Investigating Ollicer to attach only properties of the persons who were involved in the offence under TADA

Act and that on the other hand, any property can be attached if it is C reasonably believed that it was derived from the commission of any terrorist activity or was acquired by the proceeds of 'terrorism'.

Disposing of the Appeal the Court

HELD : 1. From the material ou record the Court is satisfied that D the Investigating Ollicer prima facie and reason to. believe that there is basis for invoking Section 7A of TADA. [618-G]

2. The conclusions reached by the designated Judge need not be interfered with. [619-AJ

3. The ship bearing the name "Nahi Mahar" cannot be kept under attachment, the reason being that this ship was purchased long before the passing of TADA. The said ship has to be released from attachment. [619-B)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

F 507 of 1994.

From the Judgment and Order dated 1.7.94 of the Designated Judge (TADA ACT) Jamnagar in Order below Ex. 1 in Report Application (TADA ACT) No. 1of1993.

B.K. Mehta, B.V. Desai and Mrs. Meeta Sharma for the Appellants.

Dr. N.M. Ghatate, Ms. Rekha Pandey, Ms. H. Wahi, Ms. S. Hazarika and Ms. Nandini Mukherjee for the Respondents.

The Judgment of the Court was delivered by

A K. VENKATASWAMI, J. This appeal preferred under section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter reforred to as "TADA") challenges the judgment and order of the learned Designated Judge (TADA), Jamnagar dated July 1, 1994.

The learned Designated Judge confirmed an order uf attachment of B seven vesseb/ships under Section 7A of TADA pending further investigation in the matter.

At the outset we would like lo make it clear that we du not propose tu deal with the matter either in detail or to give a final decision in this matter in view of the fact that when the judgment under appeal was made c h the matter \Vas under t e investigation stage unly. In our view any opinion expressed at this stage might cause prejudice to either party and that is the reason for not going into the matter in detail or giving any final decision.

Briefly slated the facts are as under :

D In the Kalyanpur Police Station Crime Register No. 62/93 related to a case booked for the offences punishable under sections 121, 121A, 122, 34 !PC and 25(1)(A)(D), 25(1)(A)(2), 25(1)AA, 25(A)(B), 25 (A)(F) of the Arms Act, Section 25 of Wireless Telegraph Act and Sections 3, 4 and 5 of TADA and Section 135(1) of the Bombay Police Act. In the course E of investigation one diary of Hamir Sajan was found and it contained certain financial transactions relating to one Haji Haji Ismail for purchasing the ships in question. The District Superintendent of Police attached tho'e ships invoking powers under Sectiun 7 A of TADA. A report application No. 1/93 was filed before the learned Designated Judge seeking confirmation of attachment.

F The appellants claiming to be the owners of the ships in question objected to the attachment and sought revocation of such attachment before the learned Designated Judge.

It was argued before the learned Designated Judge that section 7A G of TADA came into force on and from 22.5.1993 and the purchases of all the ships having taken place well before the date, the provisions of TADA cannot be invoked. It was also contended that none of the persons objecting (claiming to be the owners) the attachment had ever been arrested either under the provisions of Customs Act or under TADA and hence H prima facie Section 7A of TADA has no application. It was further

N.H. BlIAGAD v. STATE [K. VENKATASWAMI, J.] 617

contended that to invoke Section 7A of TADA there should be knowledge A or reasons to believe that properties attached are involved in terrorist activities and that requirement was not satisfied on the facts of the case.

Before the learned Designated Judge, the Designated Public Prosecutor after narrating the facts relating to the purchase of the seven ships in question contended that on p1inw facie case being made out and entertaining reason lo believe that the .property in question falls within the mischief of Section 7 A attachment in question was made and that further inquiry/investigation was still going on regarding all the seven ships to conclusively find as to whether they were involved in smuggling activities or not. It was admitted that since some of the persons were absconding and some of others had left the district therefore, at that stage, attachment could not be revoked and he prayed for confirmation of the order of attachment.

The learned Designated Judge bearing in mind that the investigation D was still going on has given only a prima facie finding and on being satisfied with the prima facie case confirmed the attachment by the judgment under appeal.

The learned Designated Judge found that the main accused was one Haji Haji Ismail and he was doing the landing activities of gold and silver articles which are smuggled goods and in order to see that Government authorities do not cause any hurdles to him in carrying out such activities he was possessing automatic rifles. foreign made Pistols and other latest and scientific means of communications and they were already attached

F and Hamir Sajan and other three persons were arrested. Though they were released on bail, in the first instance on the ground that TADA does not apply to them, on appeal to this Court, the order granting bail to them was cancelled and all the accused were taken into custody. The learned Designated Judge als9 found, prima facie, that there was no mention at all in Section 7A that the property to be investigated must be the property of an offender against whom the offence under Section 7A is to be registered. G According to the learned Judge what was required to be established was that the property in relation to which the investigation was made must be having sources of purchase from the amount or proceeds of terrorism or by way of commission of terrorist activity. Therefore, the learned Judge found that it was not necessary or incumbent upon the Investigating Officer H

A to attach only properties of the persons who were involved in the offence under TADA Act and that on the other hand, any property can be attached if it is reasonably believed that it was derived from the commission of any terrorist activity or was acquired by the proceeds of 'terrorism'. The learned Judge also found that 'the aforesaid party (namely the appellants

herein) arc related to the main smuggler Haji Haji Ismail' who is absconding and by using the funds provided by him the ships in question were purchased and so it can he said that :

"p1ima fade, doing smuggling activity of keeping and possessing latest and modern foreign made arms and ammunitions in order to cause terrorism among the Customs and Police Officers would mean that by keeping the authority such as Custom Officers or Police Personnel in constant fear due to his terrorist activities, the amount is derived from that activity, it would mean that the fond is created by way of terrorist act, as Haji Haji Ismail has managed for the money to purchas~ seven ships to the opposite party members who have purchased the ships in their names only as a show and ostentation so that they can be safe from attachment or they can be safe from penal action and such other consequences."

Finally the learned Judge observed that :

"Therefore, at this juncture, it is established prima facie that ships mentioned in report Application No. 1/1993 are liable to be attached and they are attached rightly as stated by the authorities and they deserve to be confirmed."

F Mr. Mehta, learned Senior Counsel reiterated the same arguments which were addressed before the learned Designated Judge. As we have observed at the outset it would not be advisable to give any definite opinion with regard to the involvement' of the attached ships at this stage except observing that from the materials on record we are satisfied that the G Investigating Officer prima facie had reason to believe that there is basis for invoking Section 7A of TADA. We may also add in fairness to Senior Counsel that he cited certain judgments to support his arguments, but for the very same reasons as given above we do not think it is necessary to quote and elaborate those citation>.

H After carefully going through all the relevant papers and the prima

N.1-L BHAGAD v. STATE [K VENKATASWAMI, J.] 619

facie views expressed by the learned Designated Judge, we are of the A opinion that at this stage we need not interfere with those conclusions reached by the learned Designated Judge. However, on the facts of this case, the_ ship bearing the name "Nabi Mahar", Registration No. B.D.l. 430 purchased on 10.12.1965, as per the case of the prosecution itself, cannot be kept under attachment, the reason being that this ship was purchased long before the passing of TADA. Therefore, the said ship has to be released from attachment. We make an order accordingly. Except for this modification, for obvious reason. We do not find any ground to interfere with the judgment and order of the learned Designated .Judge in any other respect. Subject to the modification as above, the appeal stands disposed of.

V.M.

Appeal disposed of.