UAPA Case : Supreme Court Grants Bail To Thwaha Fasal, Dismisses NIA's Appeal Against Allan Shuhaib's Bail

The Supreme Court on Thursday restored the Special NIA Court, Kochi's order granting bail to Kerala youth Thwaha Fasal and Allan Shuhaib in a UAPA case over alleged Moist links.

The bench of Justices Ajay Rastogi and Abhay Sreeniwas Oka delivered the judgment in the following appeals :

1. The appeal filed by Thwaha Fasal, a journalism student, challenging the judgment of the Kerala High Court which set aside the bail granted to him by the Special NIA Court.
2. The appeal filed by the NIA challenging the very same Kerala High Court judgment affirming the trial court's order granting bail to Fasal's co-accused law student Allan Shuhaib

The Supreme Court has allowed Fasal's appeal and dismissed the appeal filed by the NIA.

Justice Oka, who read out the operative portion of the judgment, stated that Fasal's appeal has been allowed and the High Court's judgment of January 2021, which reversed his bail, has been set-aside. Also, the appeal by Union of India against Shuhaib's bail is dismissed, and the order of bail granted by trial court is confirmed.

The Court directed that Fasal be produced before the trial court to complete the bail formalities. The bail will be subject to the conditions in the bail order passed by the Special NIA Court Kochi in September 2020.

For separate report about the reasons stated in the order, refer here : Mere Support To Terrorist Organization Without Intention To Further Its Activities Does Not Attract Section 38/39 UAPA : Supreme Court

UAPA - If Chargesheet Does Not Reveal Prima Facie Case, Embargo For Bail Under Sec 43D(5) Won't Apply : Supreme Court

Senior Advocate Jayant Muth Raj, appearing for Fasal, had mainly argued that the NIA's chargesheet does not establish that the the accused had the intention to further the activities of Maoist group, so as to attract Sections 38 and 39 of the UAPA. It was highlighted that the NIA has dropped Section 20 of the UAPA, which is the offence relating to membership of banned terror group, from the chargesheet. Senior Advocate V Giri had appeared for Fasal at the admission stage of the appeal.

Senior Advocate R Basant, appearing for Shuhaib, whose bail was sustained by the High Court on medical grounds (noting his condition of depression), argued that the 'intention' for offence under Sections 38/39 cannot be gathered from mere books or pamphlets.

Additional Solicitor General SV Raju, appearing for the NIA, argued that the materials seized indicated that the accused were not mere sympathizers of Maoist ideology but were closely linked with the terror group's activities. The ASG agreed that dropping of Section 20 UAPA was a lacunae but said that it was rectifiable by adding the provision later after obtaining the requisite sanction. According to him, dehors Section 20, the materials on record were sufficient to infer their membership in the Maoist group.

In the instant case, the Court noted that taking the charge sheet as correct, at the highest, it can be said that the material prima facie establishes association of the accused with a terrorist organisation CPI (Maoist) and their support to the organisation. However, there is no material to show that they had "intention to further the activities" of the terror group, so as to attract the grave offences under Sections 38 and 39 of the UAPA.

The Supreme Court observed that the findings of the Special Court was based on the materials of the chargesheet. The High Court has not recorded any prima facie case regarding the intention to further the activities of terror group.

"The High Court observed that the learned Special Judge has oversimplified the matter. However, the High Court did not notice that by taking the material collected during the investigation which forms a part of the charge sheet as it is, the Special Court had recorded a prima facie finding regarding the absence of any material to show intention on the part of the accused to further the activities of CPI (Maoist). The High Court has not recorded prima facie finding on this aspect. By applying the law laid down in the case of Watali (supra), there were no reasonable grounds for believing that the accusations against the accused nos.1 and 2 of commission of offences under Sections 38 and 39 were prima facie true", the Court noted.

The Court also noted that stringent conditions have been imposed by the Special Court for bail. Accordingly, the Special Court's order was restored and the High Court's judgment was set aside.