Discussions About Working For Islam Not Incriminating: Bombay High Court Grants Bail To Man Accused Of IS Links After 7 Years Of Incarceration

A division bench of Justices Revati Mohite Dere and VG Bisht granted bail to Mohammad Raisuddin noting that laboratories had given divergent views connecting "oath" document to the handwriting of the accused. Moreover, NIA did not tender the opinion in the accused's favour for over two years.

Even otherwise, the Oath declaring a former leader of the IS as the "caliph" of Muslims was not prima facie incriminating, the court said.

The bench said witness statements that the accused would regularly discuss beef ban, Dadri incident, Muzaffarpur incident, Gujarat riots, on Islam, and therefore they were jihadist and fundamentalists, was merely the witnesses opinion.

"From a perusal of the said statements, one can reasonably conclude that, at the highest, what took place were mere discussions as to what was transpiring in India and the world and that everyone should work for Islam. The said statements prima-facie cannot be said to be incriminating," the bench observed.

Various other factors that weighed in on the bench include, a co-accused with far more incriminating circumstances being released on bail last year, two other accused pleading guilty, prolonged incarceration and no prima facie case being made out.

The bench therefore said that the bar under Section 45(D) of UAPA wouldn't apply.

"Considering the material on record, we are prima facie of the opinion that the said circumstances relied upon by the prosecution, do not appear to be of such a nature so as to sustain a reasonable belief that the accusations against the appellant are prima facie true and hence, having regard to the same, the bar under Section 43-D(5) of the UAPA will not apply."

"Oath (Baith) allegedly written by the appellant, at the highest, appears to be a declaration of the acceptance of one Abi Bakar Al Baghdadi Al Hussaini Al Quraishi as the `Caliph' of the Muslims. Prima-facie, a perusal of the said Oath (Baith) does not appear to be incriminating."

The NIA alleged that Raisuddin 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 Raisuddin 's co-accused was in touch with Islamic State members, and another had procured an IED. He is accused of being a co-conspirator as an oath of his allegiance was also found in a co-accused's house.

Raisuddin, was represented by Advocate Mubin Solkar. Solkar argued that the Oath, contents of which are easily available on the internet, was initially sent to State Examiner of Documents, Aurangabad but they could find an expert in Arabic/ Urdu to compare it with the handwriting specimens of the accused.

In 2017, Chief Examiner of Documents (CFSL) Hyderabad, had opined that for want of adequate specimen opinion couldn't be given. He submitted that the investigating agency misled this Court and suppressed the said report despite being repeatedly asked by this Court to produce the same.

Finally in 2019, the same documents were sent of CFSL Pune that gave an opinion in NIA's favour within two weeks.

"Be that as it may, there is variance in the opinion given by the two Forensic Labs, on the said document in question," the court noted.

The bench further observed that while one accused was granted bail last year as 550 witnesses were cited, two others had pleaded guilty.

"We have very closely and meticulously gone through the statements of prosecution witnesses and have also given our findings as to their nature and contents thereof. Totality of the material gathered by the investigation agency qua appellant-accused and presented before us does not prima facie point out the involvement of the appellant-accused in the aforesaid offences."

Case Title : Mohammad Raisuddin v The National Investigating Agency and anr

Citation: 2022 LiveLaw (Bom) 237 

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