'Trial Court Also Passed Equally Well Reasoned Order' : Supreme Court Issues Notice On Thwaha Fasal's Plea Challenging Bail Cancellation In UAPA Case

In the special leave petition filed in the Supreme Court, Fasal has stated that the High Court failed to note that "mere possession of Maoist literature is not a criminal offence".

"Mere possession of documents of banned organization along with other books of current political and social issues, to the most, only indicating a learning process from the side of the petitioner especially he was a journalism student", the plea states.

It is stated that in addition to the books published by CPI(Maoists), articles and pamphlets on various topics ranging from, books by Rosa Luxumberg, articles on the demolished Maradu apartment buildings, were also confiscated from him. The 25-year old points out that none of the materials allegedly seized from him are neither banned nor exhorting or supporting terrorism.

It was on January 4 that a division bench comprising Justices A Hariprasad and K Haripal set aside the Special NIA Court's order which granted bail to Thwaha Fasal and co-accused Allan Shuhaib. The Special Court, in its order delivered in September last year, had observed that no prima facie case was made out against the accused so as to attract Section 43D(5) of the Unwalful Activities Prevention Act as regards grant of bail. The Special Court observed that the case materials, at the most, suggested that the accused had Maoist leanings but had not indulged in any overt violence or incitement to violence.

The HC observed that the trial court went into a "thread-bare analysis" of the documents on record as if in a trial' and observed that the documents seized from the accused were "highly inflammable and volatile".

Though the High Court set aside the Special Court's order, it allowed co-accused Allan Shuhaib to continue on bail, having regard to his young age and special medical conditions related to mental depression. As regards Fasal, the Court noted that the materials seized from him were more serious. The HC also placed special emphasis on the allegation that Fasal had uttered pro-Maoist slogans at the time of his arrest, which the Court termed "blameworthy".

The High Court had also observed that the documents seized from the accused were "highly inflammable and volatile".

In the special leave petition, it is argued that the trial court had only undertaken a preliminary exercise to examine if a prima facie case was made out to bar the grant of bail under Section 43D(5) of the UAPA. In fact, it is the High Court, the petitioner contends, which went into a detailed re-appreciation of the materials on record to substitute the views of the Special Court.

Further, it is argued that the High Court was not justified in observing that the principle "bail is the rule, jail is the exception" is not applicable in UAPA cases. The petitioner refers to the recent Supreme Court judgment in Union of India v. K.A. Najeeb, where bail was granted in a UAPA case taking note of prolonged detention, to argue that the High Court's approach was erroneous.

The petition highlights that even the National Investigation Agency(NIA) has no case that the accused is a member of Maoist organization, as Section 20 of UAPA was dropped from the chargesheet. Reference is made to the Supreme Court precedents such as Arup Bhuyan to state that mere passive membership in a banned organization, without any overt violent activities, cannot be regarded as an offence.

The petitioner also challenges the High Court's findings that seizure of banners seeking independence of Jammu and Kashmir reflected secessionist ideology of the accused. It is said that the banners were made in the context of the abrogation of the special status of J&K under Article 370

"It is submitted that the contents of the banner and documents were not illegal rather justifiable to excise right of dissent to government policy in democratic way without resorting violence", the SLP says.

"The Special Court order reflected humanist compassion and a sense of reality.The Special Court was able to understood that the accused as two young man who may have flirted with extremist ideas out oftheir disenchantment at the failure of the existing system to remedy social injustice", the petition drawn by Advocates CC Anopp and PS Syamkuttan and filed through Judy James AoR stated.

Also, referring to Balwant Singh case, it is argued that mere raising of slogans of banned organizations, without any overt criminal act, cannot be an offence.

Fasal, along with law student Allan Shuhaib, were arrested by Kerala Police in November 2019, for alleged links with Maoist groups. Later, the case was taken over by the NIA.

In September last year, nearly ten months after custody, the NIA Court granted them bail observing that the National Investigation Agency failed to establish a prima facie case under the Unlawful Activities Prevention Act (UAPA), 1967, against the accused.

The NIA Court observed that the notices, pamphlets, banners, etc., seized from the accused related to "burning social and political issues" such as calling for implementation of Gadgil Committee report for the protection of western ghats, condemnation of encounter killings of Maoists, protests against police atrocities, abrogation of J&K special status, etc. The programmes and activities projected by the prosecution were public protests related to current issues, the court noted.

"Right to protest is a constitutionally guaranteed right. It is well settled that "Government established by law" has to be distinguished from persons for the time being engaged in carrying on the administration. A protest against policies and decisions of the government, even if it is wrong a wrong cause, cannot be termed as sedition or an intentional act to support cession or secession", the NIA court had observed.

The NIA Court further noted the mere possession of books on Communist ideology, Maoism, class struggle, etc., does not prove anything adverse against the accused.

Though the High Court reversed the finding of the Special Court that no prima facie case under UAPA existed, it allowed Allan Shuhaib to continue on bail, having regard to his young age, special medical condition. The High Court placed particular emphasis on the allegation that Thwaha had uttered pro-Maoist slogans, which it court termed "blameworthy".