UAPA Case Against Allan-Thwaha : Can Intention To Further Terrorist Activities Be Inferred From Books, Banners & Slogans? Supreme Court Asks NIA
"If somebody has a book which is banned by the government, would that implicate them?",the Court asked during the hearing.
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The Supreme Court on Wednesday asked the National Investigation Agency if based on the recovery of certain books, pamphlets, banners, notices etc and the shouting of slogans, the membership of a banned organisation and the intent to further its activities can be inferred so as to attract the draconian anti-terror law the Unlawful Activities Prevention Act(UAPA).The bench of Justices...
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The Supreme Court on Wednesday asked the National Investigation Agency if based on the recovery of certain books, pamphlets, banners, notices etc and the shouting of slogans, the membership of a banned organisation and the intent to further its activities can be inferred so as to attract the draconian anti-terror law the Unlawful Activities Prevention Act(UAPA).
The bench of Justices Ajay Rastogi and Abhay Sreeniwas Oka was hearing the SLP filed by the NIA challenging the Kerala High Court judgment affirming the trial court's order granting bail to law student Allan Shuhaib in a UAPA case registered over alleged Maoist links. Also listed was the petition filed by Allan Shuhaib's co-accused Thwaha Fasal, a journalism student, challenging the very same judgment of the Kerala High Court which set aside the bail granted to him by the Special NIA Court.
On Wednesday, Additional Solicitor General S. V. Raju, for the NIA, argued that even though the charge of section 20 of the UAPA (Punishment for Being Member of Terrorist Gang or Organisation; which is extendable to life imprisonment) is dropped from the chargesheet in respect of Shuhaib and Fasal, the court may discern it from the allegations in the chargesheet of the incriminating material recovered from them and their conduct.
He submitted that the UAPA contemplates three types of entities- one, a terrorist gang, which, he said, the matter is not concerned with; the second, a terrorist organisation; and the third, an unlawful association, which, he said, is a milder form. "For unlawful association or unlawful activity, no terrorist activities are required", he told.
Justice Rastogi asked if Communist Party of India (Maoist) is notified as an unlawful organisation.
"That is the mischief! They are notified as a terrorist organisation under section 35 of the UAPA! It is not an unlawful association. There is a distinction. The moment you are notified in the first schedule to the Act, you are an organisation involved in terrorism!", replied the ASG.
"An unlawful association is totally different from a terrorist organisation. Section 35 allows the government to add an organisation to the first schedule or the name of an individual in the fourth schedule. These are individuals like Hafiz Saeed, Dawood Ibrahim! Look at the kind of organisations that are enlisted- Babbar Khalsa is one. CPI(Maoist) is also notified. It is a terrorist organisation- being a member itself is very serious!", he continued.
He sought to distinguish the 2011 Arup Bhuyan case, submitting that there, it was in context of the TADA that it was held that a terrorist act is important to be implicated- "In UAPA, that one is involved in a terrorist act is not important if one is a member of an organisation in respect of which the notification has been issued! And the notification will be issued only if you are involved in terrorism or terrorist activity!"
He submitted that under section 36, the organisation or the person affected can also apply for de-notification. If that is rejected, it has to go before a review committee. It is only when the review committee, consisting of a chairperson who is a sitting High Court judge or a retired High Court judge, approves of it is the confirmation done.
"From their activities, their conduct of shouting slogans of 'Inquilab Zindabad' and 'Maoist Zindabad' at the time of arrest, the material found from their home and their person, it is concluded that they are members. A3 (Usman) is a full-time professional member in the underground cadre of the CPI(M) and A1 (Shuhaib) and A2 (Fasal) are part-time members", he submitted.
'These are boys in their early 20s, they have some material in their possession. Can they be incarcerated only because of some kind of inference you draw?'- SC asks
"You are saying that they are members of this terrorist organisation? Your chargesheet says that they have given assistance to A3 who is the person who is basically involved. Based on these documents that the chargesheet says have been recovered from them, you are connecting and saying that they have been assisting A3. According to you, if any incriminating material was seized from these persons or their houses, you can infer that they are actively participating in these terrorist organisations?", asked Justice Rastogi.
"It will depend upon the nature of documents found. Here, the only inference is that you are an active member. Otherwise, how will you have 15 copies of notices to be circulated, minutes of the meeting?", replied the ASG.
"It is not that he is circulating the notices on the streets or circulating to the people at large. It is only that you have found it at his house", inquired Justice Rastogi
'If you wanted to read it, you wouldn't take out 15 copies...This is all a matter of trial", replied the ASG.
"They have no difficulty in trial. They say, 'We have been in custody for 1-1 1/2 years, why should we continue like this?'. Can they be incarcerated only because of some kind of inference you draw?", posed Justice Rastogi.
"In the Watali case that you have placed for our perusal, the incriminating material was of such nature- complete liasoning was going on, money was transferred, such connectivity between the people, the charge of communication between 2, 3, 4 people- where you could infer that these persons are completely involved. Here, these are boys in their early 20s and they have some material in their possession", asked the bench. In NIA v. Zahoor Ahmad Shah Watali (2019), the Supreme Court ruled that it is not permissible for courts to even engage in a detailed analysis of prosecution case while considering bail under UAPA and to weigh whether evidence adduced by prosecution is even sufficient or not.
"Terrorism doesn't know age. They have got these documents now, they are acting in assistance, it is this how people go on to become terrorists later. It has to be checked. We are in a position to control them to some extent because of Acts like UAPA. It is not that they were reading some book by Karl Marx. Look at the quantum of the material! And gathering this material itself is a difficult task. We have done it! And we have been able to catch only 2. Otherwise, there must be so many more working underground!", responded the ASG.
"Let me demonstrate from the facts if section 20 is applicable. Based on what is stated in the chargesheet, the court will discern objectively if the charge under section 20 is made out, even if the police dropped it. The chargesheet is not the gospel, courts can infer from it", he continued.
"So according to you, your investigating officer has missed it? Show us from the chargesheet that even if 20 is not specifically mentioned, the ingredients of 20 are there?", asked the bench.
"It is a specific allegation in the chargesheet that A1 and A2 are part-time members. The chargesheet further says that the investigation revealed that A1 and A2 contributed money by way of levy of membership fees to CPI (Maoist)", began the ASG.
"Is there any documentary evidence to justify this inference drawn by you?", asked the bench.
"It is very difficult for the IO to find subscription receipts of members of the banned terrorist organisation. You can only infer membership by circumstances. I can lay circumstantial evidence. I am pitching my case on section 20 even though the chargesheet does not mention it. Mentioning a wrong section or not mentioning a section will not make a difference if there is material to show. From the material collected, you can infer that they are members. This type of material will only be with members", replied the ASG.
"But we must have some satisfaction as regards the basis on which you are drawing the inference", probed the bench.
"The IO says it is on the basis of the confession", said the ASG.
As the bench seemed skeptical about the admissibility in evidence of the same, the ASG said that he is not pressing the same and basing his case on circumstantial evidence.
"So on the basis of the material recovered, active participation can be inferred?", asked the bench again. "There are various ways of inferring membership- section 20 does not say it requires subscription list, papers, receipt etc. There may be direct evidence, oral evidence, circumstantial evidence", said the ASG.
"Sections 38 and 39 require the intent to further the activities of the terrorist organisation. Where is the intention to further its activities?", asked the bench.
"The preparation of banners, distribution of notices, shouting slogans- intention is the matter to be inferred from the conduct. You have to take the cumulative effect of all this- a person who is not associated will not have any of this", replied the ASG.
"But he has not been given any opportunity to present his case", pointed out the bench.
"In his bail application, he says I am a student, I am a journalist. Ordinarily, a student will not have possession of minutes, banners, 15 copies of notices asking persons to attend meetings. A student will not hold meetings with a seasoned member. Prima facie, it is established that he is a member. If that is so, then section 20 will apply irrespective of the chargesheet...And all this material is not easy to come by. These naxalites and these Maoists are now so seasoned that they will not allow any material to leak. They are shrewd people, sharp people. It is fortunate that we could dig and lay our hands on this material. Their SOP says don't carry your mobile. When you are dealing with these kinds of people, I am not saying you do not have to abide by law, but you have to look at it from a slightly different angle", said the ASG.
At this, Justice Rastogi quipped "If you don't implicate him in 20, it is very difficult to entangle him in the case?" and that "Their SOP is sharper than the SOP of the investigating agency?"
The ASG continued to submit that the instant banned organisation is engaged in an armed struggle for destabilising the country- "If you go to even one meeting, you are imbibed with these ideas which will destroy the country. This is a very serious offence. The ordinary parameters of deciding bail application have to be ignored. This will ruin the country if they feel that no material could be recovered and nothing happened. Then these activities will go on and people are killed. And I can understand if somebody just goes into the place where the meeting is being held and listens to the meeting. But here, other than taking a gun and shooting somebody, there is active participation. Here, there is an organisation which is declared to be a terrorist organisation. The ordinary principle of association will not apply under 20. Mere membership is punishable under 20"
Justice Rastogi remarked, "We fully agree with you. But the material on record must justify that your inference has some basis"
"If somebody has a book which is banned by the government, would that implicate them?", asked Justice Rastogi.
"Please don't see it in isolation, but together with the material found from his house, his conduct. If the one book found on his person was the only thing, I would not have opposed the bail. The material found is descriptive of the typical Maoist ideology- that when the police are in their camps, take them said by surprise, go and attack them. This is the kind of people we are dealing with. They are celebrating Pakistani Independence Day! And these are not innocuous acts, not some innocent, stray, one-time incident. It is a continuous process! Poor, innocent lives are at stake, The armed forces' lives at stake. People in the guerilla army require these people's assistance to plan their activities!", urged the ASG.
"The principle of constitutionality has to be there for section 20 unless it is challenged and struck down. The section today remains as it is. I will demonstrate before trial court that 20 is made out and charges will be framed. Your Lordships can direct the charges to be framed in two months. The High Court has already said that the trial is to be concluded in 1 year", prayed the ASG.
"Would you like our finding on section 20 or would you want the first court to see if it has to be incorporated or not? You have made a submission here, we have to question and answer it. We have to make some observations based on the charge-sheet and whatever material supporting it is on record", asked the bench.
"I would prefer the finding of the trial court. If it is falling from your lordships, it will definitely prejudice the trial. Let the first court examine it and let this matter be kept after one month. Despite 12 cases, A3 absconded for two years. He was caught only now with great difficulty. If you grant them bail, and if the trial court says 20 is applicable, then I will have to come back for cancellation. In the meantime, they will escape to some remote jungle", pleaded the ASG.
'What is troubling us is that 10 years is the maximum sentence, there is no minimum and accused is already in custody for almost 2 years'- SC
Next, the bench pointed out that sections 38 and 39 of the UAPA, with which the accused are charged, are punishable with a maximum sentence of 10 years or fine or both, if the accused are found guilty on trial. The bench indicated that there is no minimum sentence for these offences.
"The quantum of sentence is not significant for deciding the question of bail under UAPA because of its section 43D(5)", replied the ASG. The proviso to the said section provides that such accused person shall not be released on bail if the Court is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.
Justice Rastogi observed that the condition for the grant of bail is more stringent in section 37 of the NDPS which provides that bail would be granted only if the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence- "The legislative wisdom has given more emphasis for granting bail in NDPS requiring that the finding that he is not guilty of offence is recorded". The judge pointed out that secondly, there is no minimum sentence in the UAPA- "Even if somebody is held guilty for the purpose of this Act, unless section 20 is there, then 10 years is maximum. So the trial court may give him punishment for two years, three years or even 1-1 1/2 years being the first time offender. It is at its discretion. Look at the punishment in section 38. 43D(5) may be there but what is the punishment you are imposing? Then, what will be the rigour of 43D(5)?"
Justice Rastogi observed, "What is troubling us is that 10 years is the maximum, with no minimum punishment prescribed. A2 has undergone custody for more than a year and a half, while A1 for almost a year. We are at the stage when the charges are yet to be framed. God knows how long it will take"
"In cases like this where stringent conditions are imposed for grant of bail, your lordships have held that they can be enlarged if they have undergone 50%. If they have undergone five years, then they can be let out because the maximum is 10", replied the ASG.
"That cannot be the standard. You cannot hold up anyone and then say suffer half the sentence. If something has been prima facie established against someone and they have undergone five years, then this court may consider. But if one is taken into custody in any manner, he must go through five years?", noted the bench.
There was a discussion between the bar and the bench that in K. A. Najeeb's case, where the offences booked provided for a maximum of life imprisonment and a minimum of 3 and 5 years, the court was affected by the long incarceration of 5-7 years. In Najeeb's case, a three-judge bench of the Supreme Court has appreciated that the presence of statutory restrictions like Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III the Constitution, and that whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence; that such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.
The ASG responded that in the instant case, prima facie, the material revealed to have been recovered from the accused in the chargesheet, their conduct and their activities will be sufficient for framing of the charges.
"So conditions for framing of charge will apply to the bail application? According to you if charges are framed, one is not entitled to bail?", asked the bench.
"One is not entitled to bail, depending on the charge, if 43D(5) applies. If charge is framed, a prima facie case is made out and then there is no bail, unless you have undergone 50%. But as far as constitutional courts are concerned, under Articles 32 and 226, 43D(5) is not applicable. The Supreme Court or a constitutional court can definitely grant bail, taking into consideration the material", replied the ASG.
"What type of material? We are asking you again and again?", said the bench.
"The CPI(Maoist) is a terrorist organisation, they are advocating an armed revolution to destabilise the country, they are saying Kashmir should be separated! Violence in a terrorist act is not an essential requirement under 38. 'Assisting' need not necessarily be in violent activities. That is why the punishment is 10 years or with fine or with both. Assisting in terrorist activities by way of providing arms would be a different thing", pressed the ASG.
"When you are setting the law into motion, if you file a chargesheet and there is a time-bound trial, it will inspire confidence in people. Then no person will come forward for bail. Right now they feel that if bail is rejected, God knows when the matter will be heard. This gap has to be filled. We need to assure the people that if you have committed something wrong, the mechanism will be operative and the final conclusion will be within a time bound period", remarked Justice Rastogi.
"The COVID situation is really bad in Kerala. Give us a year's time. We will finish the trial. We will drop most of the witnesses. We will examine only 50-60 even if there are 93 in the charge sheet", urged the ASG.
"The bail court takes a holistic view that if the number of witnesses is this, how much time will it take despite the fact that these are special courts dealing with the trial", noted the bench.
"In this case, where there are serious anti-national activities, a period of six months in the interest of the nation will not make a difference", concluded the ASG.
After the ASG concluded his submissions, Senior Advoacate R Basant, appearing for Allan Shuhaib, pointed out that the NIA has not obtained sanction under Section 45 of the UAPA to prosecute the accused under Section 20. So, the Special Court is barred from taking cognizance of the offence under Section 20.
The Court will hear the arguments of Basant tomorrow. Yesterday, Senior Advocate Jayant Muth Raj had concluded the arguments for Thwaha Fasal (report about that may be read here).
Click here to read/download the order