Lucknow: More than a month after the Supreme Court granted bail to Kerala-based journalist Siddique Kappan in a case where he was booked for sedition, outraging religious feelings, raising funds and conspiring to commit terrorist activity, the 43-year-old journalist remains in jail.
That is because the Enforcement Directorate (ED) has alleged that he and four other Muslim men were money laundering to fund terrorist activity as members of the Popular Front of India (PFI), an Islamic group on 28 September banned by Prime Minister Narendra Modi’s government.
Legal documents show the money laundering case in which the ED arrested Kappan in February 2021 was registered three years earlier in May 2018 against alleged PFI members under section 3 (offence of money laundering) and section 4 (punishment for money laundering) of the Prevention of Money Laundering Act, 2002.
These documents include the ECIR ( (enforcement case information report) filed by the ED (similar to the first information report in a police case) in May 2018 against 22 alleged members of the PFI, the “complaint” (chargesheet) against Kappan and his co-accused—Atikur Rahman (28), Masud Ahmed (29), Md. Alam (39) and the “main conspirator” Rauf Sherif (28)—filed before the PMLA special court in Lucknow in February 2021, and Kappan’s bail application filed before the same court in September 2022.
The 2018 case was predicated on a 2013 case where the 22 Muslim men were, among other laws, convicted under section 18 and section 18A—conspiracy to commit a terrorist act and punishment for organising of terrorist camp—of the Unlawful Activities Prevention Act, 1967, by a special court of the NIA (National Investigation Agency) for conducting weapons and explosives training camp of the PFI in Narath in Ernakulam district in Kerala in April 2013.
The Kerala High Court, in January 2016, while retaining convictions under the Explosive Substances Act, 1908 and the Arms Act, 1959, set aside the convictions under the UAPA.
Two years later, the ED decided to further investigate the 22 men they said were PFI members, “and others” under the PMLA.
Neither Kappan nor his co-accused were accused in either the 2013 or the 2018 case until the ED filed a complaint (chargesheet) in the 2018 case before the PMLA court in Lucknow on 6 February 2021, four months or 125 days after his arrest in the UAPA case on 5 October.
The ED alleged that Kappan, Rahman, Ahmed and Alam, received money from the PFI to fund the movement against the Citizenship Amendment Act, 2019 and the Delhi riots.
Sherif financed them to go to Hathras, Uttar Pradesh, where a Dalit teenager was gang raped by upper caste men on 14 September 2020, with the objective of “disturbing communal harmony, instigating riots and speeding terror”, according to the ED. The UP police arrested them in Mathura while heading to Hathras on 5 October.
“This ED case registered in 2018 was for the scrutiny of PFI funding. It was never related to the UAPA case registered on 7 October by the UP police,” said Ishan Baghel, Kappan’s lawyer. “They have made him an accused in a 2018 case registered for some other offenses related to some other case.”
‘Main Conspirator’ Gets Bail
Sherif, who was arrested on 12 December 2020 from the Thiruvananthapuram airport when he tried to board a flight to Oman and allegedly flee the country, was granted bail by the PMLA court in Ernakulam in February 2021.
Noting the case against him was registered in 2018 and was predicated on a 2013 case of weapons and explosives training, the court said the alleged ‘proceeds of crime’ of Rs 2 crore was transferred to his bank account after the disposal of the 2013 case.
“There is absolutely no case for ED that the ‘proceeds of crime’ in the case was derived by Rauf as a result of criminal activity relating to the scheduled offence in the Narath case,” the court said. “That apart, the amount in the bank account of Rauf projected as ‘proceeds of crime’ was credited to his account after the disposal of the Narath case.”
A month after he was granted bail in Kerala, Sherif was denied bail by additional sessions judge Anil Pandey in Mathura in connection with the UAPA case registered by UP police. Moved from Kerala to UP after the UP police arrested him in the UAPA case in February 2021, Sherif is currently lodged in Lucknow central jail.
Madhuvan Dutt Chaturvedi, Sherif’s lawyer, said that bail by the PMLA court in Ernakulum is “sufficient” and he now only needs to get bail in the UAPA case from the Lucknow sessions court designated to hear UAPA and NIA matters.
745 Days In Jail
In April 2021, the UP police charge-sheeted eight people—Siddique Kappan, Atikur Rahman, Md Alam, Masud Ahmed, Rauf Sherif, Asad Badruddin, Firoz Khan, and Mohammad Danish—in the UAPA case, which was transferred in December 2021 from Mathura to the Lucknow sessions court.
Kappan, who was denied bail in the UAPA case by the Mathura district court in July 2021 and the Lucknow Bench of the Allahabad High Court in August 2021, has told the court that he is not a member of the PFI and that he was going to Hathras as a journalist with Azhimukham to report on the aftermath of the gang rape.
Finding the police case to be prima facie true, Justice Krishna Pal of the High Court questioned why Kappan was travelling with alleged PFI members and said the use of “tainted money” could not be ruled out.
While granting bail to Kappan a month later and referring to the Dalit teenager who was gang raped in Hathras, Chief Justice U U Lalit said—“Every person has a right to free expression, he was trying to show that the victim needs justice and raise a common voice.”
Chief Justice Lalit said to the UP government, " So best you can say is this man was travelling in a vehicle with three others when you apprehended him on the Yamuna Expressway, and inside the car, there was some literature...”
Justice S Ravindra Bhat said, “Till now, you have not shown anything provocative.”
In the 743 days of his incarceration in Mathura and Lucknow, Kappan, a father to two children, who hails from Vengara in the Malappuram district, lost his elderly mother, Khadeeja Kutty, in June 2021.
A month earlier, Kappan had contracted Covid-19 and collapsed in the bathroom of his jail cell. His wife Raihana Siddique told reporters that he was chained to the bed in the private hospital he was admitted to and not allowed to go to the toilet for many days, having to urinate into a bottle.
Some politicians and press bodies welcomed the bail for Kappan, secretary of the Kerala Union of Working Journalists, and a member of the Press Club of India and the Delhi Union of Journalists. His lawyers could not find anyone in UP to stand surety for him until a Lucknow-based philosophy professor and social activist, Roop Rekha Verma, came forward.
So far, in the UAPA case, Kappan has received bail from the Supreme Court, and Alam, a cab driver, from the Lucknow Bench of the Allahabad High Court.
‘Exploiting ED By Their Whims & Fancies’
Kappan, whose application for discharge from the money laundering case has been pending before the PMLA special court since 2 May 2022 (the ED filed a reply on 23 September 2022), filed for bail on 6 September 2022.
The bail application was heard on 12 October 2022, and the order was reserved by district and session judge Sanjay Shanker Pandey.
In July 2022, a three-judge bench of the Supreme Court—Justices A M Khanwilkar (now retired), Dinesh Maheshwari, and C T Ravikumar—in Vijay Madanlal Choudhary vs Union of India upheld the constitutional validity of certain provisions of the PMLA, where that burden of proof lies to establish prima facie innocence lies with the accused pleading for bail.
In response to a petition by a member of parliament Karti Chidambaram, former Chief Justice N V Ramana, on the eve of his retirement, said the Supreme Court would review its order about the presumption of innocence and sharing of the ECIR (enforcement case information report that the three-judge bench said was not like a first information report—FIR—registered by the police—and sharing a copy of it was not mandatory).
Baghel, Kappan’s lawyer, said that the ED had produced no evidence of any kind of monetary transaction by his client, which is shown to be used for any terrorist activity or proof of a connection with his co-accused he is accused of hatching a conspiracy.
In his bail arguments, Baghel referred to the Supreme Court’s ruling in February on Section 106, Indian Evidence Act, 1872, which says that if a fact is within the knowledge of the accused, then the onus of proving it is on the accused.
The Supreme Court said that if the prosecution has failed to prove the basic facts alleged against the accused,
“They are exploiting ED by their whims and fancies because it is such a stringent law that the onus falls on us to show we are innocent,” said Baghel, “You can't just book me for an offence without any proof and say now you prove that you are innocent.”
“For Kappan, in the money laundering case, the cause of action does not arise. There is no evidence on record of any financial transaction,” said Mohd Khalid, who is also representing Kappan. “It was a query of the court that how will you prove this.”
The PMLA complaint (chargesheet) has a “flow chart of money trail of funds”, with the names of 10 people and “Thejas travels”, who allegedly remitted money to Sherif as part of a criminal conspiracy, “in the guise of payments for the trading of goods”, amounting to Rs 1,36,14,291.
On Kappan’s role, the chargesheet in the PMLA says that he “directly indulged and was involved in the use of proceeds of crime by travelling in the vehicle by and by being part of the purported visit to Hathras along with other accused, the funds for which were transferred to the bank account of Atikur Rehman from the bank account of Ahmad Shibli PK on the instructions of KA Rauf Sharif.”
As defined in the Act, “proceeds of crime” means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offense or the value of any such property.” Scheduled crimes include offenses under the Indian Penal Code, 1860, Narcotics Drugs and Psychotropic Substances Act, 1985, Explosive Substances Act, 1908, the Unlawful Activities Prevention Act 1967 and the Arms Act, 1959, among others.
In August, Supreme Court justices Dinesh Maheshwari and Krishna Murari said the PMLA court could not have jurisdiction to continue in a money laundering case if the accused is acquitted in a scheduled offense under the Act.
In his bail application, Kappan said the flow chart of the money trail of funds shown by the ED is not related to him, and he has no connection with the alleged “proceeds of crime” estimated to be Rs 1,36,14,129.
Regarding the Rs 5,000 that were allegedly deposited into Rehman’s account, Kappan, in his bail application, said that no money has been transferred to his account and no account statement has been included in the chargesheet.
“In an ED case, there should be an allegation of money laundering, and I should be part of the ‘proceeds of crime’. In this case, they have not even alleged whether I have received any amount from any source or through Rauf Sherif,” said Baghel. “There is no connection with any money.”
Regarding the allegation that he received Rs 45,000 from the PFI in his account, made in the UAPA case, Kappan told the courts that he deposited Rs 25,000 in his account on 15 September 2020, which was money saved by him for the construction of his house but could not be utilised during the Covid-19 lockdown.
Kappan said he deposited Rs 20,000 on 4 April 2020, money his friends borrowed from him to purchase a mobile phone and flight tickets.
Regarding the allegation that he attended a PFI meeting in Delhi in 2015 and his name figured in the minutes of the meeting, Kappan, in his bail application in the PMLA case, said that he did not attend the meeting the minutes of the meeting confirmed his absence.
The ED has mentioned no call detail records, Kappan said.
“It is pertinent to mention that based on the false media reports and false narrative circulated in the media houses, the ED has filed the complaint/chargesheet against the present applicant, without there being any substantial piece of evidence,” his bail application says. “The allegation against the applicant accused is wrong, false and incorrect and based on conjectures and surmises. There is no substantial evidence against the applicant accused of running a case under the PMLA Act.”
Furthermore, Kappan, in his bail application, noted that his statement, as well as those of his co-accused, were taken while they were in custody, which the Supreme Court deemed as weak and are not regarded as evidence within section 3 of the Evidence Act, 1872.
Other Allegations In The UAPA Case
Regarding the allegation that the accused were carrying pamphlets on how to escape identification while inciting riots and printed paper likely to cause disharmony and caste-based violence, Kappan told the courts no pamphlets or published papers were in the car.
Regarding the allegation that the accused were managing a website named justice for the Hathras victim, Kappan told the court that no such website was being maintained, and the police submitted no evidence of the same.
Regarding the allegation that co-accused Ansad Baduruddin and Firoz Khan were arrested in Lucknow with explosives in furtherance of the conspiracy hatched by the co-accused, Kappan told the courts he might have come across Badruddin in the discharge of his duty as a journalist covering politics in Kerala. Still, there is no evidence to show he is connected with his activities.
Regarding the allegation that Kappan wrote an article supporting “terrorist Gulzar Ahmed Wani” and a video with photos of the last rites of the Hathras victim was found on his laptop, Kappan told the courts he had written no such article or made any such video.
Regarding the allegation that there was material in support of a banned organisation—SIMI (Students Islamic Movement of India), Kappan said his friend was writing a book on former SIMI leaders and had sent a draft to him and asked him to do interviews with ex SIMI leaders who were now lawmakers with the Trinamool Congress in West Bengal.
Regarding the allegation that Kappan sent messages to gather people at the AIIMS mortuary to mourn “terrorist Geelani”, he said he did not know such a person. Still, he did cover the death of SAR Geelani, a professor arrested in connection with the 2001 terrorist attack on the Indian parliament and acquitted by the Delhi High Court in 2003 and the Supreme Court in 2005.
Regarding the allegation that he was a member of the PFI, Kappan said that he was a former employee of Tejas Weekly, which is linked to the PFI, and he was in touch with many of its leaders and members, but he was not an activist.
Regarding the allegation that he did false and communal reporting during the Delhi riots and that he was in touch with instigators of the riots, Kappan said that a report by the Indusscroll website (which describes itself as a ‘nationalist digital media venture’) was behind the allegation. He had sent a legal notice to them for their defamatory and false reporting.
Regarding the allegation that the co-accused in the UAPA case purchased a car for Alam from the money they received from PFI to cause disharmony in Hathras, Kappan said he met Alam for the first time on 5 October 2020. There was no prior relationship between them.
A Four-Year-Old Case
The PMLA case, where Kappan and his co-accused were included in February 2021, was registered in May 2018 against 22 Muslim men from Kerala who were convicted by the National Investigation Agency (NIA) in a 2013 terror case in Kerala.
The 2013 case was registered at Mayyil police station in district Kannur under the IPC for rioting, unlawful assembly, and making assertions prejudicial to national integration, the UAPA for conspiracy to commit a terrorist act, the Arms Act and the Explosive Substances Act.
The allegation, in this case, was that members of the PFI entered into a conspiracy to conduct a “terrorist camp”, conducting weapons and explosives training in a building owned by the Thanal Foundation, a religious and charitable trust, on 23 April 2013 at Narath in Kannur.
The NIA took over the case on 7 August 2013, and a chargesheet was filed on 19 October 2013, which said that the CDR (call detail record) confirmed the presence of the accused in Narath, and “huge international transactions” were found in accounts of one accused Fahad PC.
In a judgment dated 20 January 2016, the Kerala High Court set aside the conviction under section 18 and section 18A—conspiracy to commit a terrorist act and punishment for organising of terrorist camps—under the UAPA, and section 153 and section 153A—provocation with intent to cause a riot and causing enmity between religious groups—under the IPC, made by the NIA court, while retaining convictions on attempting to cause an explosion and making explosives under the Explosives Substance Act, and altering the section in the Arms Act to illegal possession of firearms.
Offenses under the Explosives Substance Act, and the Arms Act, are scheduled offenses under the PMLA.
Bail For The Driver
Md Alam, the ED alleged, was travelling to Hathras with his co-accused in a car bought in his name by one Masud (a relative of his brother-in-law) that was purchased 10 to 15 days earlier for Rs 2,25,000 in cash. He was “involved in using the proceeds of crime” by taking other accused persons in his vehicle.
Alam’s brother-in-law is Md Danish, a PFI member, and an accused in a Delhi police case related to the Delhi riots, the ED said. (Neither Danish nor any other alleged PFI member has been charged-sheeted in the Delhi riots conspiracy case).
Granting bail to Alam, a cab driver from Delhi, on 23 August, the Lucknow Bench of the Allahabad High Court, comprising Justices Ramesh Sinha and Saroj Yadav, said no allegedly incriminating material was recovered from Alam, his cellphone had no incriminating material, and the car appears to have been purchased by his relative Mehboob Ali who filed an affidavit explaining the source of the money.
“Prima facie, there appears no complicity and involvement of the appellant with the terrorist activities or any other activity against the nation,” the court said.
(Betwa Sharma is managing editor, Article 14.)