UNION OF INDIA versus YASMEEN MOHAMMAD ZAHID @ YASMEEN

Citation: [2019] 10 S.C.R. 996 · Decided: 02-08-2019 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 10  S.C.R.
    UNION OF INDIA
v.
 YASMEEN MOHAMMAD ZAHID @ YASMEEN
(Criminal Appeal No.1199 of 2019).
  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
(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
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 –
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
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
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
[2019] 10 S.C.R. 996
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A1.  These features definitely point to 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 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
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
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
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
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
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]
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
   UNION OF INDIA v. YASMEEN MOHAMMAD
ZAHID @ YASMEEN
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SUPREME COURT REPORTS
[2019] 10  S.C.R.
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 

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