Dawood Ibrahim Is A Terrorist In Individual Capacity, Gang Association With Him Not Punishable Under UAPA: Bombay High Court

In a significant order, the Bombay High Court has held that the Central Government under its powers has declared underworld gangster Dawood Ibrahim, a terrorist in his "individual capacity" and thus any association of any person with him or the D-Company, would not attract punishment for being member of a terrorist organisation under section 20 of the Unlawful Activities (Prevention) Act (UAPA).

A division bench of Justices Bharati Dangre and Manjusha Deshpande granted bail to two men booked for their alleged links with D-Company and for their involvement in a drugs seizure case.

"Section 20 prescribes punishment for being a member of a terrorist gang or organisation. In the instant case, the material on which reliance is placed, is in the form of Section 164 statement, referring to Parvez Vaid (petitioner) as a Member of D-gang. This, in our view, prima facie, would not attract the offence under section 20, as by the amendment in Schedule IV, Dawood Ibrahim Kaskar, has been declared as a terrorist in individual capacity, and therefore, any association with him on the pretext that a person belongs to D-gang/Dawood gang will not attract the provisions of Section 20," the judges held in their July 11 order.

In its order, the bench noted that under the UAPA, the Central government is empowered to enlist certain outfits as terrorist organisation (under first schedule) or an individual (under fourth schedule). Similar powers, the bench noted, can be exercised by the Central government to enlist either terrorist organisations or individuals, after a resolution of the same is adopted by the Security Council under Chapter VI of the Charter of the United Nations, to combat international terrorism.

The judges further noted that Dawood was declared a terrorist by the Central government in the fourth schedule under the UAPA by a notification issued on September 4, 2019.

As per the prosecution case, some of the witnesses had testified in their section 164 statements, that they knew applicant Vaid as a member of D-Company. The prosecution further relied on a transaction of Rs 25,000 made by Vaid to a person who was known to be closely associated with Dawood.

The prosecution further relied on a secret information, stating that one Anis Ibrahim, a close confidant of Dawood, has been financing several illegal activities in India, along with some of the members of his gang. Accordingly, a search raid was conducted in the house of Vaid in August 2022 and two cell phones were seized from his possession.

The other applicant in the case - Faiz Bhiwandiwala, was booked by the Anti Terrorism Squad (ATS) after it found 600 grams of ganja from his possession during the raids conducted in view of the secret information.

For Bhiwandiwala, the bench noted there was no material for the prosecution to contend that he was also a member of the D-Company. He was booked under the Narcotics Drugs and Psychotropic Substances (NDPS) Act. The bench noted that the quantity recovered from Bhiwandiwala was very small one, which does not mandate his incarceration. It noted that among other grounds opposing the plea, ATS relied on the fact that the applicant Bhiwandiwala shared some photos of drugs with Vaid and that the duo used "dark net" to order narcotics through an app called "Wicker Me."

"Since admittedly, the charge-sheet reveal that what is seized from accused no.2 (Bhiwandiwala) is 600 gms of ganja, which definitely do not deserve his incarceration, as the quantity is neither commercial nor intermediate, but is a small quantity, and bar for releasing him on bail under Section 37 of the NDPS Act, shall not come in its way. Mere sharing of the pictures of Narcotics or prohibited substance definitely do not attract the provisions of the NDPS Act," the bench held.

The bench, therefore, granted bail to the two applicants on surety of Rs 50,000.

Appearance:

Senior Advocate Mihir Desai, alongwith Advocates Samsher Garud, Vighnesh Iyer and Dhwani Parekh instructed by Jayakar & Partners appeared for Parvez Vaid.

Advocates Rishi Bhuta, Vivek Pandey, Ashish Dubey, Ujjwal Gandhi and Ankita Bamboli appeared for Faiz Bhiwandiwala.

Additional Public Prosecutor SV Gavand represented the State.

Case Details:

Parvez Vaid vs State of Maharashtra (Criminal Appeal 1138 of 2023).

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