Kerala Gazette No. 45 dated 17th November 2009.

PART I

Section i

GOVERNMENT OF KERALA

Law (Leg. Publication) Department

NOTIFICATION

No. 4132/Leg. Pbn. 3/2009/Law.

Dated, Thiruvananthapuram, 28th February, 2009.

The following Act of Parliament, published in the Gazette of India

Extraordinary Part II, Section I, dated the 31^st December, 2008 is hereby

republished for general information. The Bill as passed by the Houses of

Parliament received the assent of the President on the 31^st December, 2008.

By order of the Governor,

K. JOHN BRITTO,

Special Secretary (Law),

In charge of Law Secretary.

G. 192/2009/DTP. (Kannur).

THE UNLAWFUL ACTIVITIES (PREVENTION) AMENDMENT ACT, 2008

(ACT NO. 35 OF 2008)

ACT

further to amend the Unlawful Activities (Prevention) Act, 1967.

BE it enacted by Parliament in the Fifty-ninth Year of the Republic of India as

follows:—

1. Short title.—This Act may be called the Unlawful Activities (Prevention)

Amendment Act, 2008.

2. Insertion of Preamble.—In the Unlawful Activities (Prevention) Act, 1967

(37 of 1967) (hereinafter referred to as the principal Act), after long title and before

the enacting formula, the following preamble shall be inserted, namely:—

“WHEREAS the Security Council of the United Nations in its 4385th meeting

adopted Resolution 1373 (2001) on 28th September, 2001, under Chapter VII

of the Charter of the United Nations requiring all the States to take measures

to combat international terrorism;

AND WHEREAS Resolutions 1267 (1999), 1333 (2000), 1363 (2001), 1390

(2002), 1455 (2003), 1526 (2004), 1566 (2004), 1617 (2005), 1735 (2006) and 1822

(2008) of the Security Council of the United Nations require the States to take

action against certain terrorists and terrorist organisation, to freeze the assets

and other economic resources, to prevent the entry into or the transit

through their territory, and prevent the direct or indirect supply, sale or

transfer of arms and ammunitions to the individuals or entities listed in the

Schedule;

AND WHEREAS the Central Government, in exercise of the powers conferred

by section 2 of the United Nations (Security Council) Act, 1947 (43 of 1947)

has made the Prevention and Suppression of Terrorism (Implementation of

Security Council Resolutions) Order, 2007;

AND WHEREAS it is considered necessary to give effect to the said

Resolutions and the Order and to make special provisions for the prevention

of, and for coping with, terrorist activities and for matters connected

therewith or incidental thereto.”.

3. Amendment of section 2.—In section 2 of the principal Act,—

(i) in clause (d), the words “and includes a Special Court constituted

under section 11 or under section 21 of the National Investigation Agency Act,

2008;” shall be inserted at the end;

(ii) after clause (e), the following clause shall be inserted, namely:—

‘(ea) “Order” means the Prevention and Suppression of Terrorism

(Implementation of Security Council Resolutions) Order, 2007, as may be

amended from time to time;’;

(iii) in clause (g), after the words “for the purpose of a terrorist

organisation”, the words “or terrorist gang” shall be inserted at the end;

(iv) for clause (h), the following clauses shall be substituted, namely:—

‘(h) “property” means property and assets of every description

whether corporeal or incorporeal, movable or immovable, tangible or

intangible and legal documents, deeds and instruments in any form

including electronic or digital, evidencing title to, or interest in, such

property or assets by means of bank credits, travellers’ cheques, bank

cheques, money orders, shares, securities, bonds, drafts, letters of credit,

cash and bank account including fund, however acquired;

(ha) “Schedule” means the Schedule to this Act;’.

4. Substitution of new section for section 15 Terrorist Act.—For section 15

of the principal Act, the following section shall be substituted, namely:—

“15. Whoever does any act with intent to threaten or likely to threaten

the unity, integrity, security or sovereignty of India or with intent to strike

terror or likely to strike terror in the people or any section of the people in

India or in any foreign country,—

(a) by using bombs, dynamite or other explosive substances or

inflammable substances or firearms or other lethal weapons or poisonous

or noxious gases or other chemicals or by any other substances

(whether biological radioactive, nuclear or otherwise) of a hazardous

nature or by any other means of whatever nature to cause or likely to

cause—

(i) death of, or injuries to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of

the community in India or in any foreign country; or

(iv) damage or destruction of any property in India or in a

foreign country used or intended to be used for the defence of

India or in connection with any other purposes of the Government

of India, any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal

force or attempts to do so or causes death of any public functionary or

attempts to cause death of any public functionary; or

injure such person or does any other act in order to compel the

Government of India, any State Government or the Government of a

foreign country or any other person to do or abstain from doing any

act,

commits a terrorist act.

Explanation.—For the purpose of this section, public functionary means

the constitutional authorities and any other functionary notified in the Official

Gazette by the Central Government as a public functionary.”.

5. Insertion of new section 16A.—After section 16 of the principal Act, the

following section shall be inserted, namely:—

“61A. Punishment for making demands of radioactive substances,

nuclear devices, etc.—Whoever intentionally, by use of force or threat of

use of force or by any other means, demands any bomb, dynamite or other

explosive substance or inflammable substances or firearms or other lethal

weapons or poisonous or noxious or other chemicals or any biological,

radiological, nuclear material or device, with the intention of aiding, abetting

or committing a terrorist act, shall be punishable with imprisonment for a term

which may extend to ten years, and shall also be liable to fine.”.

6. Substitution of new section for section 17.—For section 17 of the

principal Act, the following section shall be substituted, namely:—

“17. Punishment for raising funds for terrorist act.—Whoever, in India or

in a foreign country, directly or indirectly, raises or collects funds or provides

funds to any person or persons or attempts to provide funds to any person

or persons, knowing that such funds are likely to be used by such person or

persons to commit a terrorist act, notwithstanding whether such funds were

actually used or not for commission of such act, shall be punishable with

imprisonment for a term which shall not be less than five years but which

may extend to imprisonment for life, and shall also be liable to fine.”.

7. Amendment of section 18.—In section 18 of the principal Act, for the

words “incites or knowingly facilitates”, the words “incites, directs or knowingly

facilitates” shall be substituted.

8. Insertion of new sections 18A and 18B.—After section 18 of the principal

Act, the following sections shall be inserted, namely:—

“18A. Punishment for organising of terrorist camps.—Whoever organises

or causes to be organised any camp or camps for imparting training in

terrorism shall be punishable with imprisonment for a term which shall not be

less than five years but which may extend to imprisonment for life, and shall

also be liable to fine.

18B. Punishment for recruiting of any person or persons for terrorist

act.—Whoever recruits or causes to be recruited any person or persons for

commission of a terrorist act shall be punishable with imprisonment for a term

which shall not be less than five years but which may extend to

imprisonment for life, and shall also be liable to fine.”.

9. Amendment of section 23.—In section 23 of the principal Act,—

(a) in sub-section (1), for the words “If any person with intent to aid any

terrorist contravenes”, the words “If any person with intent to aid any terrorist

or a terrorist organisation or a terrorist gang contravenes” shall be substituted.

(b) in sub-section (2), for the words “Any person who, with the intent to

aid any terrorist”, the words “Any person who with the intent to aid any

terrorist, or a terrorist organisation or a terrorist gang” shall be substituted.

10. Amendment of section 24.—In section 24 of the principal Act, in sub-

section (2), after the words “proceeds of terrorism whether held by a terrorist or”,

the words “terrorist organisation or terrorist gang or” shall be inserted.

11. Amendment of section 25.—In section 25 of the principal Act, in sub-

section (5), in the Explanation, after clause(c), the following clasue shall be

inserted, namely:—

“(ca) credit or debit cards or cards that serve a similar purpose;”;

12. Insertion of new sections 43A to 43F. Power to arrest, search, etc.—

After section 43 of the principal Act, the following sections shall be inserted,

namely:—

‘43A. Any officer of the Designated Authority empowered in this behalf,

by general or special order of the Central Government or the State

Government, as the case may be, knowing of a design to commit any offence

under this Act or has reason to believe from personal knowledge or

information given by any person and taken in writing that any person has

committed an offence punishable under this Act or from any document, article

or any other thing which may furnish evidence of the commission of such

offence or from any illegally acquired property or any document or other

article which may furnish evidence of holding any illegally acquired property

which is liable for seizure or freezing or forfeiture under this Chapter is kept

or concealed in any building, conveyance or place, may authorise any officer

subordinate to him to arrest such a person or search such building,

conveyance or place whether by day or by night or himself arrest such a

person or search a such building, conveyance or place.

43B. Procedure of arrest, seizure, etc..—(1) Any officer arresting a person

under section 43A shall, as soon as may be, inform him of the grounds for

such arrest.

(2) Every person arrested and article seized under section 43A shall

be forwarded without unnecessary delay to the officer-in-charge of the

nearest police station.

(3) The authority or officer to whom any person or article is

forwarded under sub-section (2) shall, with all convenient dispatch, take

such measures as may be necessary in accordance with the provisions of

the Code.

43C. Application of provisions of Code.—The provisions of the Code

shall apply, insofar as they are not inconsistent with the provisions of this

Act, to all arrests, searches and seizures made under this Act.

43D. Modified application of certain provisions of the Code.—(1)

Notwithstanding anything contained in the Code or any other law, every

offence punishable under this Act shall be deemed to be a cognizable offence

within the meaning of clause (c) of section 2 of the Code, and “cognizable

case” as defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case

involving an offence punishable under this Act subject to the modification

that in sub-section (2),—

(a) the references to “fifteen days”, “ninety days” and “sixty

dyas”, wherever they occur, shall be construed as references to

“thrity days”, “ninety days” and “ninety days” respectively; and

(b) after the proviso, the following provisos shall be inserted,

namely:—

“Provided further that if it is not possible to complete the

investigation within the said period of ninety days, the Court may if

it is satisfied with the report of the Public Prosecutor indicating the

progress of the investigation and the specific reasons for the

detention of the accused beyond the said period of ninety days,

extend the said period up to one hundred and eighty days:

Provided also that it the police officer making the investigation

under this Act, requests, for the purposes of investigation, for police

custody from judicial custody of any person in judicial custody, he

shall file an affidavit stating the reasons for doing so and shall also

explain the delay, if any, for requesting such police custody.”.

(3) Section 268 of the Code shall apply in relation to a case

involving an offence punishable under this Act subject to the modification

that—

(a) the reference in sub-section (1) thereof—

(i) to “the State Government” shall be construed as a

reference to “the Central Government or the State Government”;

(ii) to “order of the State Government” shall be construed as

a reference to “order of the Central Government or the State

Government, as the case may be”; and

(b) the reference in sub-section (2) thereof, to “the State

Government” shall be construed as a reference to “the Central

Government or the State Government, as the case may be”.

(4) Nothing in section 438 of the Code shall apply in relation to any

case involving the arrest of any person accused of having committed an

offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person

accused of an offence punishable under Chapters IV and VI of this Act

shall, if in custody, be released on bail or on his own bond unless the

Public Prosecutor has been given an opportunity of being heard on the

application for such release:

Provided that such accused person shall not be released on bail or

on his own bond if the Court, on a perusal of the case diary or the

report made under section 173 of the Code is of the opinion that there are

reasonable grounds for believing that the accusation against such person

is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is

in addition to the restrictions under the Code or any other law for the

time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and (6),

no bail shall be granted to a person accused of an offence punishable

under this Act, if he is not an Indian Citizen and has entered the country

unauthorisedly or illegally except in very exceptional circumstances and for

reasons to be recorded in writing.

43E. Presumption as to offence under section 15.—In a prosecution for an

offence under section 15, if it is proved—

(a) that the arms or explosives or any other substances specified in

the said section were recovered from the possession of the accused and

there is reason to believe that such arms or explosives or other

substances of a similar nature were used in the commission of such

offence; or

(b) that by the evidence of the expert the finger-prints of the accused

or any other definitive evidence suggesting the involvement of the

accused in the offence were found at the site of the offence or on

anything including arms and vehicles used in connection with the

commission of such offence,

the Court shall presume, unless the contrary is shown, that the accused has

committed such offence.

43F. Obligation to furnish information.—(1) Notwithstanding anything

contained in any other law, the officer investigating any offence under this

Act, with the prior approval in writing of an officer not below the rank of a

Superintendent of Police, may require any officer or authority of the Central

Government or a State Government or a local authority or a bank, or a

company, or a firm or any other institution, establishment, organisation or any

individual to furnish information in his or its possession in relation to such

offence, on points or matters, where the investigating officer has reason to

believe that such information will be useful for, or relevant to, the purposes of

this Act.

(2) The failure to furnish the information called for under sub-section

(1), or deliberately furnishing false information shall be punishable with

imprisonment for a term which may extend to three years or with fine or

with both.

(3) Notwithstanding anything contained in the Code, an offence under

sub-section (2) shall be tried as a summary case and the procedure

prescribed in Chapter XXI of the said Code [except sub-section (2) of

section 262] shall be applicable thereto.’.

G. 192/2009/DTP. (Kannur).

13. Amendment of section 45.—Section 45 of the principal Act shall be

renumbered as sub-section (1) thereof and after sub-section (1) as so renumbered,

the following sub-section shall be inserted, namely:—

“(2) Sanction for prosecution under sub-section (1) shall be given within

such time as may be prescribed only after considering the report of such

authority appointed by the Central Government or, as the case may be, the

State Government which shall make an independent review of the evidence

gathered in the course of investigation and make a recommendation, within

such time as may be prescribed, to the Central Government or, as the case

may be, the State Government.”.

14. Insertion of new section 51A.—After section 51 of the principal Act, the

following section shall be inserted, namely:—

“51A. Certain powers of the Central Government.—For the prevention of,

and for coping with terrorist activities, the Central Government shall have

power to—

(a) freeze, seize or attach funds and other financial assets or

economic resources held by, on behalf of or at the direction of the

individuals or entities listed in the Schedule to the Order, or any other

person engaged in or suspected to be engaged in terrorism;

(b) prohibit any individual or entity from making any funds, financial

assets or economic resources or related services available for the benefit

of the individuals or entities listed in the Schedule to the Order or any

other person engaged in or suspected to be engaged in terrorism;

listed in the Schedule to the Order or any other person engaged in or

suspected to be engaged in terrorism.”.

15. Amendment of section 52.—In section 52 of the principal Act, in sub-

section (2), after clause (e), the following clasue shall be inserted, namely:—

“(ee) the time within which sanction for prosecution and recommendation

to the Central Government shall be given under sub-section (2) of section 45,

and”.

16. Amendment of section 53.—Section 53 of the principal Act, shall be

renumbered as sub-section (1) thereof and after sub-section as so renumbered, the

following sub-section shall be inserted, namely:—

“(2) The Order referred to in entry 33 of the Schedule and every

amendment made to that Order shall be laid as soon as may be after it is

made before each House of Parliament while it is in session for a total period

of 30 days which may be comprised in one session or in two or more

successive sessions.”.

17. Amendment of Schedule.—In the Schedule to the principal Act after entry

32, the following entry shall be inserted, namely:—

“33. Organisations listed in the Schedule to the U.N. Prevention and

Suppression of Terrorism (Implementation of Security Council Resolutions)

Order, 2007 made under section 2 of the United Nations (Security Council)

Act, 1947 (43 of 1947) and amended from time to time.”.