Terrorism Must Be Dealt With Sternly: Delhi HC

While displaying zero tolerance for terrorism and terror acts which is nothing but war against the entire nation which affects all of us, the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Mohsin Ibrahim Sayyed vs National Investigation Agency in W.P.(CRL) 463/2023 & CRL.M.A. 4336/2023 and cited in Neutral Citation No.: 2024:DHC:4734 that was reserved on 01.04.2024 and then finally pronounced on 07.06.2024 very rightly rejected a plea that had been filed by a man convicted of being a member of the terror outfit ISIS seeking direction that the sentence awarded to him in two different cases be made to run concurrently instead of consecutively. It must be noted that the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma who authored this learned judgment observed that the petitioner Mohsin Ibrahim Sayyed was convicted under the Unlawful Activities Prevention Act (UAPA) and pleaded guilty to the offence of terrorism. The Delhi High Court underscored that the Supreme Court has held that concurrent running of sentences should not be allowed in the Narcotics Drugs and Psychotropic Substances (NDPS) Act cases because of their impact on society. Hon’ble Ms Justice Sharma clearly held that terror cases must be dealt with an even higher degree of sternness.

At the very outset, this notable judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner has preferred this petition under Article 226/227 of the Constitution of India read with Section 482 and 427(1) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’), whereby he has sought a prayer that the sentence imposed upon him in NIA Case No. RC-09/2016/NIA/DLI by the learned Additional Sessions Judge-03, Patiala House Court, New Delhi vide order dated 02.06.2022 be directed to run concurrently with the sentence imposed upon him in NIA Special Case no. 3/2016 arising out of RC-02/2016/NIA/MUM, by the learned Additional Principal Judge and Special Judge MCOCA/POTA/NIA/TADA Greater Bombay vide order dated 07.01.2022.”

To put things in perspective, the Bench envisages in para 2 that, “Succinctly put, the case set out by the petitioner herein is that the Court of NIA Special Judge at Greater Bombay had convicted him for the offences punishable under Section 120B of Indian Penal Code, 1860 (‘IPC’) and Sections 18/20/38/39 of Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) in case arising out of RC/02/2016/NIA/MUM, vide judgment dated 07.01.2022. Thereafter, vide order on sentence dated 07.01.2022, the learned Trial Court (Greater Bombay) had sentence the petitioner to five years of rigorous imprisonment under Section 18 of UAPA and Section 120B of IPC; eight years of rigorous imprisonment under Section 20 of UAPA; and seven years of rigorous imprisonment under Section 38/39 of UAPA. It was further directed that these sentences would would run concurrently. Thus, the maximum actual sentence in this case was eight years.”

As it turned out, the Bench then enunciates in para 3 stating that, “Thereafter, the Court of learned Additional Sessions Judge-03, Patiala House Court, New Delhi had held the petitioner guilty in case arising out of RC-09/2016/NIA/DLI and had convicted him, vide judgment dated 20.05.2022, under Sections 17/18/20 of UAPA and Section 120B of IPC. Pursuant thereto, the learned Trial Court (Delhi) had, vide order dated 02.06.2022, sentenced the petitioner to five years of rigorous imprisonment under Section 120B of IPC; seven years of rigorous imprisonment, each, under Section 17, 18 and 20 of UAPA; and had directed that these sentences would run concurrently. Thus, the maximum actual sentence in this case was seven years.”

As we see, the Bench points out in para 4 that, “It is, however, stated that the factum of petitioner’s conviction and sentencing by the learned Trial Court (Greater Bombay) was not brought to the attention of the learned Trial Court (Delhi),as a result of which, the Court in Delhi could not exercise its statutory discretion under Section 427(1) of Cr.P.C. to determine the manner of execution of the sentence, considering that the petitioner was already serving the sentence awarded by the learned Trial Court (Greater Bombay) vide order dated 07.01.2022 at such time.”

As things stands, the Bench mentions in para 6 that, “Notice was issued in the present petition on 17.02.2023 and the respondent i.e. NIA was directed to file a reply to the petition. Reply was filed on record on behalf of respondent, opposing the grant of relief in the present case.”

Needless to say, the Bench then stipulates in para 14 that, “The issue, which falls for consideration of this Court in the present case is whether the discretion, as provided under Section 427(1) of Cr.P.C., should be exercised by this Court, by invoking its extraordinary and inherent powers, to direct concurrent running of sentence awarded to the petitioner by the learned Trial Court (Delhi) with the sentence awarded to the petitioner by the learned Trial Court (Greater Bombay).”

It is worth noting that the Bench notes in para 17 that, “An analysis of sub-section (1) of Section 427 CrPC would reveal that it firstly presupposes two separate sentences awarded to a person in two different cases, secondly, the person must be undergoing the sentence in the first case, and thirdly, the person must be subsequently sentenced to imprisonment in the second case.”

Quite damningly, the Bench notes in para 24 that, “The petitioner was arrested by Special Cell of Delhi Police on 05.02.2016 for his involvement in an ISIS-related case concerning planning of an attack during the Ardh Kumbh Mela in Haridwar, Uttarakhand. The case was later taken over by the NIA. During the course of trial, the petitioner had pleaded guilty to the charges framed against him.”

Quite revealingly, the Bench observes in para 25 that, “It was revealed in this case that the petitioner had come in contact with an ISIS handler, Yousuf Al-Hindi, and had attempted to join ISIS. On his directions, the petitioner had fled to Kerala to obtain fake IDs but had fled to escape the police. He had then traveled to Delhi and Rohtak and subsequently had collected funds from his associate in Lucknow on the directions of Yousuf Al-Hindi, which he had then handed over to other co-accused persons. The petitioner had also instructed his associates/co-accused to collect powder from matchsticks, intending to teach them bomb-making.”

Truth be told, the Bench lays bare in para 26 that, “For the aforesaid acts, the petitioner was convicted by the learned Trial Court (Delhi) for offences under Sections 17/18/20 of UAPA and Section 120B of IPC.”

Petitioner’s Role in Case Arising out of RC-02/2016/NIA/MUM

Further, the Division Bench discloses in para 27 that, “After his arrest by Special Cell of Delhi Police on 05.02.2016, the petitioner was arrested in this case also, on 15.06.2016. This case had initially been registered by the ATS Branch of Mumbai Police against one Aiyaz Md. Sultan and other unknown persons for instigating youths to join ISIS and furtherance of activities of Islamic State. During the course of trial, the petitioner had pleaded guilty to the charges framed against him.”

Be it noted, the Bench notes in para 43 that, “Another important and crucial factor to be considered in the present case is the gravity of offence committed by the petitioner and its impact on the society as a whole.”

Most forthrightly, the Bench propounds in para 46 that, “There is no gainsaying that terrorism not only threatens the national security of the country but also the very fabric of society by targeting innocent civilians and institutions indiscriminately, with an aim to instill fear among the common and innocent citizens of a country. The impact of such terrorist activities on society is profound and far-reaching, as these crimes have the capacity to sow fear and insecurity among communities, as well as disrupt the social harmony. They also result in loss of innocent lives, destruction of property, and destabilization of regions. These impacts are often long-lasting. Thus, the gravity of such crimes lies in their potential to cause widespread harm, both physically and psychologically, and their challenge to fundamental values of peace, tolerance, and coexistence in a nation.”

Most significantly and most commendably, we need to note that what constitute the cornerstone of this notable judgment is then encapsulated in para 47 wherein it is mandated that, “Thus, when the Hon’ble Apex Court has observed that concurrent running of sentences should not be allowed in cases under NDPS Act since offences involving narcotic drugs and psychotropic substances are against society at large and even result in loss of young lives, this Court is of the firm opinion that cases such as the present one have to be dealt with the same or even a higher degree of sternness. In this case, the petitioner had himself pleaded guilty to charges framed under UAPA, for his acts of planning to carry out terrorist attacks in Haridwar during Kumbh Mela and plotting to kill a leader of Hindu Mahasabha, primarily with an aim to harm and disrupt communal harmony in the country, and since lenient view has already been taken by the Trial Courts at the stage of sentencing, no further leniency can be granted to the petitioner by allowing concurrent running of sentences awarded to him by the Trial Courts in Greater Bombay and in Delhi.”

CONCLUSION

As a corollary, the Bench then propounds in para 49 that, “The observations recorded in the foregoing discussion can be summed up as under:

i. The offences committed by the present petitioner, for which he has been convicted upon conclusion of trial in two different cases, cannot be termed as part of a ‘same transaction’.

ii. The petitioner was not awarded maximum sentence i.e. imprisonment for life in either of the case by the Trial Courts; rather a lenient approach was adopted by the Courts while awarding sentence to him.

iii. The offence committed by the petitioner under the provisions of Unlawful Activities (Prevention) Act, 1967 are grave and serious in nature, which have an impact on the society at large as well as the national security and communal harmony of the nation.”

Resultantly, the Bench holds in para 50 that, “Therefore, this Court finds no reasons to exercise discretion under Section 427(1) of Cr.P.C. and thus, the sentence of imprisonment awarded to the petitioner in case arising out of RC09/2016/NIA/DLI by the learned Trial Court (Delhi) shall commence upon expiration of the sentence of imprisonment awarded to the petitioner in case arising out of RC-02/2016/NIA/MUM by the learned Trial Court (Greater Bombay).”

Quite naturally, the Bench then directs in para 51 that, “In view thereof, the present petition alongwith pending application stands dismissed.”

Finally, the Bench then concludes by directing in para 52 that, “The judgment be uploaded on the website forthwith.”

In sum, we thus see that the Delhi High Court has very rightly held that terrorism must be dealt with sternly. It must be underscored that terrorism affects not just one or few individuals but our nation as a whole whom they want to destroy completely and so we have just no option but to deal with them most sternly displaying complete zero tolerance as held by the Delhi High Court in this leading case. No doubt, we thus see that the Court very rightly rejected the plea that had been filed by the petitioner convicted of being a member of the terror outfit ISIS who sought direction that the sentence awarded to him in two different cases be made to run concurrently instead of consecutively. No denying or disputing it!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.