The court also held that the rigours of 43-D(5) of the Unlawful Activities (Prevention) Act, which prohibits the grant of bail if the court is satisfied that the allegations against the accused are prima facie true, would melt down if the accused had been incarcerated for a long time and the trial is not likely to be completed in the near future.
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IN an important ruling, the Madras High Court has held that if a person threatens another by claiming to be a member of a terrorist organisation, it is not by itself a reasonable ground to hold that he was indeed a member of the terrorist organisation within the meaning of Section 39 of the Unlawful Activities (Prevention) Act (UAPA), 1967.
The court held this while granting bail to a meat dealer accused of working towards establishing Islamic rule in India.
A division Bench of Justices S.S. Sundar and Sunder Mohan was ruling on a petition filed by Mohamed Irfan. It was alleged that Irfan had committed the offence under Section 18 of the UAPA by conspiring to commit a terrorist act and also under Section 39 of the UAPA relating to support given to a terrorist organisation.
According to the prosecution, one Sathick Batcha (accused no.1) was a prime accused in a case at the Mayiladuthurai police station.
On specific information that he was in possession of arms and weapons, a special police team on February 21, 2022, at about 10.00 a.m., intercepted a black colour Mahindra Scorpio at Nidur–Mayiladuthurai railway gate travelling from Nidur to Mayiladuthurai.
Irfan and the other accused were found in the car. A case was registered at the Mayiladuthurai police station for the offences under Sections 148 (rioting, armed with a deadly weapon) and 506 (ii) (intimidation to cause death or grievous hurt) of the Indian Penal Code (IPC), 1860 and Section 28 (use and possession of firearms or imitation firearms in certain cases) of the Arms Act, 1959. All the accused were arrested.
On February 25, 2022, the investigating officer (IO) filed a report before the judicial magistrate to include Section 307 (attempt to murder) of the IPC to the list of crimes in the case.
On March 6, 2022, another report was filed by the IO before judicial magistrate-I, Mayiladuthurai, for including the offences under Sections 13 (punishment for unlawful activities), 38 (membership of a terrorist organisation) and 39 (support to a terrorist organisation) of the UAPA.
Eventually, the National Investigation Agency (NIA) took over the investigation and re-registered a case under Sections 148 and 506 (ii) of the IPC, and Sections 13, 38, 39 of the UAPA.
It was the case of the NIA that Irfan, along with co-accused Batcha, who founded the Khilafah Party of India, with an ideology reflecting that of the Islamic State of Iraq and Syria (ISIS), worked towards the goal of establishing Islamic rule in India in violation of the Constitution of India and the laws established thereunder.
The NIA further argued that the investigation revealed that Irfan had participated in conspiracy meetings held at the Tamil Nadu Haj Service Society at Choolai, and in a madrassa by the name Jamia Muhammadia at Mannady.
The NIA also referred to the statement of Protected Witness B, the statement of another witness by the name M. Fasithi Ali Rahman, and the messages in the WhatsApp group called the Islami Country/Islamic State stating that the conspiracy meetings were conducted at Tamil Nadu Haj Services Society.
The NIA contended that this evidence revealed the involvement of Irfan in the offences under the UAPA.
The Bench examined the material, in particular the statement of the witness who was alleged to have been threatened by Irfan by stating that his leaders were ISIS terrorists and they would kill any person who stood in their way.
Thereafter, the Bench opined: "We are of the view that merely because the appellant had threatened the person stating that he was associated with an ISIS terrorist, it would by itself not be a reasonable ground to hold that he had supported a terrorist organisation.
"The threat would certainly amount to an offence but not an offence under Section 39 of the UAPA. The prosecution has to establish the support to the terrorist organisation by independent evidence."
The Bench also referred to the statement of the protected witness shown to it. The Bench found that neither the conspiracy to commit a terrorist act nor the support of Irfan to a terrorist organisation could be inferred.
Protected witnesses are those whose identities are not revealed to the accused persons.
"No doubt, the statement reveals the association of the appellant with accused no. 1. The requisite intention to support a terrorist organisation cannot be inferred from the materials filed in support of the final report.
"The fact that the appellant handled the funds of accused no. 1 cannot be the basis to infer his support to any terrorist organisation. Support to an individual is different from support to a terrorist organisation," the Bench held.
The Bench also noted from the chargesheet that the motto of the outfit said to have been formed by accused no. 1, namely the Khilafa Party of India, was to establish Islamic rule in India by overthrowing the government established by law.
"This by itself would not amount to a terrorist act within the meaning of Section 15 of the UAPA. There must be material to show that the appellant had intended to support a terrorist organisation or had conspired to commit a terrorist act in order to attract the offences under Sections 39 and 18 of the UAPA, respectively.
"The allegation of conspiracy to commit a terrorist act must spell out the object of the conspiracy, i.e., as to what exactly was the terrorist act that was agreed to be committed," the Bench ruled.
In addition, the Bench also noted that Irfan has been in custody since February 2022 and that even assuming that the materials collected by the prosecution may ultimately lead to a conviction, the detention pending trial could not be indefinite.
Taking note of the fact that the trial of the case was not likely to be completed within a reasonable time, the Bench cited the ruling of the Supreme Court in Union of India versus K.A. Najeeb, holding that the rigours of 43-D(5) of the UAPA, which prohibits the grant of bail if the court is satisfied that the allegations against the accused are prima facie true, would melt down if the accused had been incarcerated for a long time and the trial is not likely to be completed in the near future.
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