Presumption of innocence under UAPA: Meaning of ‘prima facie’ case

The law is clear: Detention should not be permitted when there are no reasonable grounds for believing that the accusations are prima facie true. Its application is another story, writes Lakshmi Devi.

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IN the past month, there have been several decisions in which the Supreme Court of India has emphasised the right to life and liberty of undertrial prisoners. The court reiterated in several cases that "bail is the rule and jail is an exception".

One notable instance of prolonged undertrial detention was the case of Jalaluddin Khan versus Union of India.

Facts of the case

The appellant, Jalaluddin Khan, a retired police constable, was charged with Sections 13, 18, 18A and 20 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

Allegedly, his wife owned a building called 'Ahmad Palace' in Phulwarisharif Patna, Bihar, the first floor of which was rented by one Athar Parvej (the tenant/ accused no. 1).

The National Investigation Agency (NIA) conducted a raid of the premises on July 11, 2022, resulting in the recovery of certain incriminating articles and documents relating to the Popular Front of India (PFI), and the appellant was arrested the following day.

The NIA alleged that the appellant took part in a conspiracy to commit unlawful activities under the UAPA, claiming that the appellant's wife was only a name lender regarding the building's ownership, and that the tenant had been an active member of a banned terrorist organisation.

The NIA also claimed that the appellant had tampered with the evidence, basing this claim on CCTV footage that allegedly showed the appellant moving certain items from the first floor.

However, as was noted by the Supreme Court, there was a complete lack of material in the chargesheet to show the appellant's connection with any terrorist organisations.

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The chargesheet also failed to show any connection of the appellant with PFI before letting out the first-floor premises to the tenant, which in any case is not listed as a terrorist organisation under the UAPA.

Further, the Supreme Court found that the statement of a protected witness which was purportedly reproduced in the chargesheet was "completely distorted". The NIA had relied upon this distorted witness statement to claim that the appellant had participated in a conspiracy to commit terrorist acts. 

Bombay High Court on landlord's criminal liability

The Bombay High Court in Abhay Marutirao Chidri versus The State of Maharashtra considered the question of the owner's liability for criminal activity carried out on rented premises.

In this case, an application was filed by the petitioner Abhay Marutirao Chidri to quash and set aside a first information report (FIR) under Sections 370 (3) and 34 of the Indian Penal Code and Sections 3, 4 and 5 of Immoral Traffic (Prevention) Act, 1956.

The prosecution's case was that a raid was conducted on December 17, 2021 by the immoral traffic prevention department of the premises owned and rented out by the petitioner.

The raid was conducted after receiving information that immoral trafficking and forceful prostitution were taking place at the premises, and the raid resulted in the recovery of evidence and recording of witness statements.

The matter came before a Bench comprising Justices Nitin Jamdar and N.R. Borkar of the Bombay High Court.

Rejecting the writ petition, the court held, "The leave and licences stated to be executed by the petitioner do not mean that the petitioner had surrendered the entire control over the premises.

"It is not possible to believe, without evidence and the trial, that the petitioner had no knowledge of the activities that were going on at the premises. That in spite of being the owner, the petitioner had no knowledge of the activities going on in his premises is a matter of defence of the petitioner, which the petitioner will have to demonstrate at the time of trial."

Also read: Casual and mechanical staying of bail Orders disastrous for human liberty, says SC

The Bombay High Court, in this matter, took the view that a landlord is presumed to be aware of the goings-on at premises let out by him. This placed the landlord in a position of having to prove, through trial, that he was not guilty of the offence he was accused of by the prosecution.

While the high court did not delve into the reasoning behind this ruling, such a presumption as to the guilt of the landlord-petitioner arises from Section 3 of the Immoral Traffic (Prevention) Act, 1956.

Sub-Section 2(b) of Section 3 of this Act provides that the owner, lessor or landlord of any premises who lets the whole or part of such premises with the knowledge that it is intended to be used as a brothel, or is wilfully a party to its use as a brothel, shall be punishable with imprisonment extending up to two years and with fine.

Sub-Section 2A of Section 3 further clarifies that such owner, lessor or landlord shall be presumed, until the contrary is proved, to be knowingly allowing the whole or part of such premises to be used as a brothel or, as the case may be, having knowledge that the premises are being used as a brothel, if,

1. a report is published in a newspaper having circulation in the area in which he resides to the effect that the premises have been found to be used for prostitution as a result of a search made under the Immoral Traffic (Prevention) Act; or
2. a copy of the list of all things found during such a search is given to such a person.

That is, the Immoral Traffic (Prevention) Act contains provisions providing for the presumption of guilt of landlords subject to the satisfaction of certain conditions.

Thus, the Bombay High Court's decision in Abhay Marutirao Chidri versus The State of Maharashtra ought to be appreciated in the light of this special provision.

Presumption of innocence under UAPA

There are several special statutes that provide for a 'reverse burden of proof', such as the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985.

Also read: Safeguards under the UAPA: Section 43A and 43B

However, the UAPA only contains one provision that places the burden of proof on the accused, i.e., Section 43E. It reads as follows:

"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."

Applying the legal maxim 'expressio unius est exclusio alterius' which means 'expression of one is the exclusion of another,' we may conclude that the express inclusion of the reverse burden of proof principle in relation to offences under Section 15 of UAPA means that the general rule of innocent until proven guilty shall be applicable to all other offences under the UAPA.

The Supreme Court's decision in Suresh Thipmppa Shetty versus The State of Maharashtra sheds light on this point. Here it was stated that:

"The presumption of innocence in favour of the accused and insistence on the prosecution to prove its case beyond a reasonable doubt are not empty formalities.

"Rather, their origin is traceable to Articles 21 and 14 of the Constitution of India. Of course, for certain offences, the law seeks to place a reverse onus on the accused to prove his/her innocence, but that does not impact adversely the innocent-till-proven-guilty rule for other criminal offences."

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The observations of the Supreme Court in National Investigation Agency versus Zahoor Ahmad Watali with regard to granting of bail under the UAPA also clarifies this position:

"Notably, under the special enactments such as the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), the Maharashtra Control of Organised Crime Act (MCOCA) and the NDPS Act, 1985, the court is required to record its opinion that there are reasonable grounds for believing that the accused is 'not guilty' of the alleged offence.

"There is a degree of difference between the satisfaction to be recorded by the court that there are reasonable grounds for believing that the accused is 'not guilty' of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is 'prima facie' true.

"By its very nature, the expression 'prima facie true' would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the concerned accused in the first information report must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence.

"It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the court has to opine that the accusation is 'prima facie true', as compared to the opinion of accused 'not guilty' of such offence as required under the other special enactments."

Therefore, the general rule of burden of proof ought to apply to all proceedings under the UAPA, except those under Section 15 of UAPA.

Threshold for 'reason to believe'

The landmark judgment of the Supreme Court in Arnesh Kumar versus State of Bihar had clarified that "apart from the power to arrest, police officers must be able to justify the reasons thereof".

It was also held that "before the arrest, first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence". This requirement is also contained in Section 35 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

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That is, investigating agencies ought to have reason to believe that the accused person has committed the offence before arresting him. In other words, exercising the power to arrest should be justifiable.

Therefore, when the investigating agencies, with the complete backing and might of the State power behind them, do not meet this standard before proceeding to curtail the liberty of persons, the 'procedure established by law' cannot be said to have been followed.

The Supreme Court in the Jalaluddin Khan case reiterated the bail guidelines that were laid down in National Investigation Agency versus Zahoor Ahmad Watali.

Despite being a special statute with stricter conditions to be satisfied to avail bail, the court held that bail ought to be granted once those requirements are met. Detention should not be permitted when there are no reasonable grounds for believing that the accusations are prima facie true.

Conclusion

When there is an absence of 'information and material' to show that the accusations are prima facie true, proceeding with arrest amounts to violation of the constitutional safeguards against curtailment of the right to life and liberty.

As held in Union of India versus Mrityunjay Kumar Singh, "It is well-settled law that an accused cannot be detained under the guise of punishing him by presuming guilt."

When the statute does not provide for a reverse burden of proof, proceeding against property owners for alleged criminal activity by their tenants without the investigating agency making out a prima facie case against the landlord himself should be strongly discouraged.

Arrest without any evidence other than the mere fact of ownership of the premises where the alleged incidents took place is a gross violation of the fundamental rights of the detainees.

It amounts to reading in a presumption of guilt which is not statutorily provided, and placing the accused persons in a position of having to prove their innocence through trial.

It may be wise to remember that criminal law is not a weapon for the harassment of citizens, but a tool to deliver justice through a fair process. High regard must be given to liberty even in case of grave offences such as those under the UAPA. The investigating agencies ought to be issued directions in this regard.