Calcutta HC: Illegal Entry into India Without Any Materialistic Anti-National Evidence Does Not Constitute Attempt to Wage War on India

Akansha Upadhyay

Date- 16 November 2022 at 19:14 IST

The Calcutta High Court commuted the death sentence of four Lashkar-e-Taiba (LeT) members who were apprehended by the Border Security Force (BSF) whilst attempting to illegally cross the border into India from Bangladesh in 2007, with an objective of spreading terror in Kashmir.

It was observed by the Division Bench of Justices Joymalya Bagchi and Ananya Bandyopadhyay that:

“on the basis of evidence on record that the appellants are not men who were in the higher echelons of the terrorist organisation. They are foot soldiers who were recruited through allurement or coercion for the activities of the organisation…”

Possession of explosives and other antinational materials have not been established beyond doubt…In this backdrop, it would not be correct to hold mere illegal entry of the appellants who are members of ‘LeT’ would constitute an attempt to commit the offence of waging war against the State.”

The bench was hearing the appeals preferred by the appellants, admittedly associated with militant outfit, against conviction and death sentence imposed by the Trial Court.

Three appellants, Muzaffar Ahamed Rather, Md. Abdullah and Md. Younus were convicted under Section 121 (Waging, or attempting to wage war against India), 121A (Conspiracy to wage war against India), 122 (Collecting arms, etc., with intention of waging war against India) and 120B (Criminal conspiracy) of IPC. Md. Abdullah and Md. Younus, being Pakistani nationals, were also convicted under Section 14 of the Foreigners Act.

Fourth accused, Sk. Abdul Nayeem was convicted for commissions of offence punishable under Sections 419, 420 (Cheating), 468, 471 (Forgery), 121, 121A, 122, 120B IPC and under Section 5(b) of Explosive Substances Act. All the accused were sentenced to death. The State had filed references seeking confirmation of the death sentence.

The High Court turned down their conviction under Section 121 (Waging, or attempting to wage war against India) which prescribes death penalty in punishment stating that even an attempt to commit the crime has not been established. It observes:

To constitute an ‘attempt, the overt act must not only be done with the intention to commit the crime but such act must have reasonable proximation and be done in the course of committing the crime.”

“Evidence on record proves pursuant to an arrangement between themselves the appellants had illegally entered the country to pursue the objectives of a terrorist organization. But possession of explosives and other antinational materials have not been established beyond doubt.”

“Under such circumstances, the test of reasonable proximation and potentiality to commit the offence of waging war stands snapped.”

The bench also found them not guilty of offence of collecting arms, etc., with Intention of waging war against India, punishable under Section 122. However, the bench held them guilty of conspiring to wage war against India under Section 121A IPC.

The object of the conspiracy was to smuggle the trained mercenaries of ‘LeT’ into Kashmir and utilise them to overawe the sovereign authority of the State by use of terror and violence.”

“The common intention of the conspirators to spread terror and awe among members of the public and thereby further the avowed objective of the terrorist organization, i.e., to overthrow sovereign control over Kashmir clearly attracts Section 121A of IPC.”

“The fact that the conspirators were not aware of a specific target of attack does not erode their culpability with regard to the offence punishable under Section 121A IPC.”

It thus sentenced all the accused under Section 121A IPC to suffer rigorous imprisonment for 10 years.

On charges of cheating and forgery against Sk. Nayeem, the High Court found that the trial court order recorded no finding as to these offences and ordinarily the matter would be remanded back for a decision.

However, given that more than 15 years had lapsed, the High Court said, “it would not enure to the ends of justice to remand the case for recording a finding on the charges as aforesaid, when all the appellants have been found guilty of a graver offence and have already undergone incarceration for more than the maximum period of substantive sentence which could be awarded upon them provided the sentences were to run concurrently.”

While parting, the High Court also criticized the trial court for its “unilateral imposition of the maximum sentence” without taking into account the aggravating and mitigating factors of the case.

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