Kerala HC wrong in invoking sympathy to let off woman propagating for ISIS

New Delhi, Aug 03: The Supreme Court restored the sentence of 7 years awarded to a woman for propagating the ideology of the Islamic State.

A bench of Justices U U Lalit and Indu Malhotra dismissed the appeal filed by Yasmeen Mohammad Zahidi challenging her conviction and sentence under Section 120B (criminal conspiracy) Indian Penal Code and Section 38 of the Unlawful Activities (Prevention) Act (UAPA).

"Appeal preferred by the Union as regards the reduction of sentence awarded to A2-Yasmeen for offences under Section 120B IPC and Section 38 of the UAPA is allowed. The order passed by the High Court in that behalf is set aside and the sentence imposed by the trial court in respect of offences under Section 120B IPC and Section 38 of the UAPA against A2 is restored," the bench said.

Section 38 says, "A person, who associates himself, or professes to be associated, with a terrorist organisation with the intention to further its activities, commits an offence relating to membership of a terrorist organisation."

Yasmeen was arrested in 2016 at Indira Gandhi International Airport, New Delhi while she was attempting to travel to Afghanistan along with her child.

According to the prosecution, there was a criminal conspiracy between her husband and her pursuant to which conspiracy they left India along with others and joined ISIS in Afghanistan.

Yasmeen was an active participant supporting terrorist activities of ISIS, and she had raised funds to further the activities of ISIS and had received funds which were utilised for supporting the activities of ISIS, the prosecution had said.

Out of 15 accused named in the charge-sheet, all the other accused were declared to be absconding and Yasmeen alone was sent up for trial for the offences.

The Supreme Court said, "we must however state that the High Court was not right in observing "if a person is punishable under Section 38, Section 39 becomes superfluous".

In our view, 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."

"The only ground that weighed with the High Court while reducing the sentence was sympathy. The material on record indicates the role played by A2-Yasmeen. Even at the time of her arrest, while leaving for Afghanistan, certain objectionable material was found on her person. The intensity of 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 adequate," the court further said.