Prolonged Incarceration: Bombay High Court Grants Bail To Man Accused Of Being ISIS Recruit

A division bench of Justices SS Shinde and NJ Jamadar granted bail to Iqbal Ahmed Kabir Ahmed on merits and on the ground of prolonged incarceration, holding that it infringes his right to life and personal liberty.

The Court said,

"… in our considered opinion, the further incarceration of the appellant, in the face of extremely unlikely situation of the trial being completed in near future, would be in the negation of the protection of life and personal liberty under Article 21. The denial of bail, in such circumstances would render the procedure not only unreasonable but unconscionable as well."

The court, however, imposed strict bail conditions. He has been asked to report to the National Investigation Agency office twice a week for one month, once a week for the next two months and then once every Tuesday till the conclusion of the trial.

It noted that the Special NIA Judge seized with Ahmed's case had another 225 cases on his file, so his case's trial would not be completed anytime soon.

"Right of accused to speedy trial, which flows from the right to life under Article 21 of the Constitution, comes to the fore."

The bench held that the right to a speedy trial in cases where special laws (like UAPA) restrict the powers of the Court to grant bail, face a competing claim of the interest of society and security of the State.

"In such prosecutions, if the trials are not concluded expeditiously, the procedure which deprives the personal liberty for an inordinate period is then put to the test of fairness and reasonableness, envisaged by Article 21 of the Constitution. Where the period of incarceration awaiting adjudication of guilt become unduly long, the right to life and the protection of fair and reasonable procedure, envisaged by Article 21, are jeopardised."

The NIA alleged that Ahmed and three others were planning to attack the Maharashtra Anti-Terrorism Squad's (ATS) Aurangabad Unit. Arrested in 2016, they were booked under several sections of the IPC for conspiracy and of the UAPA.

The agency further alleged Ahmed's co-accused was in touch with Islamic State/Islamic State members, and another had procured an IED. He is accused of being a co-conspirator on the grounds that the electric switchboard in his house was used for soldering the IED and the oath of allegiance was also found in his house.

The Court observed that recovery of the oath form Ahmed's house does not seem to squarely incriminate him on two counts: (i) contents of the oath form were not in his handwriting; and (ii) mere possession of such oath form, without subscribing thereto, prima facie, does not appear to be an incriminating circumstance. 

So far as the electric switchboard is concerned, the Court held: "The fact that the co-accused has pointed the switch board in the house of the accused, where the material was allegedly soldered, without seizure of any article or material therefrom, prima facie, may not amount to the discovery of a fact which distinctly relates to the said disclosure statement."

It was also alleged that the accused persons and witnesses used to have discussions over the threats to Islam and possible solutions to such threats, were also discussed including actions of ISIS. The Court observed,

"These statements appear to be in the realm of discussion and deliberation which the accused and those witnesses had. At this juncture, there is no prima facie material to indicate that the accused No. 3 instigated the commission of offence or insurgency." 

"The upshot of aforesaid consideration is that the material which is pressed into service against the appellant, prima facie, does not appear to be of such quality as to sustain a reasonable belief that the accusation against the appellant is true. In the totality of the circumstances, the bar envisaged by section 43-D(5) may not operate with full force and vigour," the bench noted.

Case Title: Iqbal Ahmed Kabir Ahmed v. State of Maharashtra

Appearances : Sr Adv Mihir Desai a/w. Advs Kritika Agarwal and Shahid Nadeem for Ahmed, Special Public Prosecutor A.S. Pai for NIA, APP VB Konde-Deshmukh for State

Click Here To Read/ Download Order