Intention To Further Activities Of Terrorist Organization Mandatory For Offences Under Section 38/39 UAPA : Thwafa Fasal's Lawyer Argues For Bail In Supreme Court
"The intent to further the activities of the terrorist organisation is mandatory to make out an offence under sections 38 and 39 of the UAPA. Otherwise, everybody will come to be thrown into jail for indefinite periods just for having a pamphlet or a book in their houses!", Sr Adv Jayant Muthuraj argued.
The Supreme Court on Tuesday started hearing in the cases relating to the bail for two Kerala-based youngsters, Thwaha Fasal and Allan Shuhaib, booked under the UAPA for alleged Maoist links.The bench of Justices Ajay Rastogi and A. S. Oka was hearing the the SLP filed by the National Investigation Agency challenging the Kerala High Court judgment which did not interfere with the trial...
The Supreme Court on Tuesday started hearing in the cases relating to the bail for two Kerala-based youngsters, Thwaha Fasal and Allan Shuhaib, booked under the UAPA for alleged Maoist links.
The bench of Justices Ajay Rastogi and A. S. Oka was hearing the the SLP filed by the National Investigation Agency challenging the Kerala High Court judgment which did not interfere with 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.
Senior Advocate Jayant Muthuraj, for Fasal, had urged for bail, advancing that Fasal is a 22 year old whose background is such that he is working as a construction worker. He told that Fasal is pursuing journalism through correspondence, that he has been in custody for 572 days and the trial is not progressing and that 92 witnesses are to be examined. He pointed out that the charge under section 20, UAPA (Punishment for being member of terrorist gang or organisation), though invoked in the FIR, has been dropped in the chargesheet. It was advanced that he has no antecedents.
Further, he urged that nothing of substance was recovered from his possession at the time of his arrest and even the subsequent search of his house did not furnish any incriminating materials so as to create the presumption of a prima facie case so as to preclude bail.
"The intent to further the activities of the terrorist organisation is mandatory to make out an offence under sections 38 and 39 of the UAPA. Otherwise, everybody will come to be thrown into jail for indefinite periods just for having a pamphlet or a book in their houses!", he had argued.
He further submitted that both sections 38 (Offence Relating to Membership of a Terrorist Organisation) and 39 (Offence Relating to Support Given to a Terrorist Organisation) provide that the convict shall be punishable with imprisonment for a term not exceeding 10 years or fine or both, and hence, the two provisions call for lesser restrictions on bail.
Mr. Muthuraj submitted,
"The chargesheet says there was a secret meeting by Accused 1, 2 and 3 at a public place, from where I was arrested, for discussion on displaying banners and distributing pamphlets towards unlawful activities of the CPI (M) and spreading disaffection for the government…the chargesheet says that the investigation reveals that Accused 1 and 2 (Shuhaib and Fasal) had contributed money by way of membership fee to the CPI (M). But there is no charge of funding, these are allegations. I did not arrange the meeting, I did not assist in its arrangement, I have not funded anything…Now, please look at the material seized on arrest- 2 books titled 'Caste Issues in India' and 'Organisational democracy – disagreement with Lenin'…Then there was a search and seizure at my house and the chargesheet says the police recovered incriminating material attributable to and supporting the CPI (M), 'anti-national propaganda material'.
The chargesheet mentions around 18 items- please note some of them- a diary; a book called 'Hello Bastar: The Untold Story of Indian Maoist Movement', which is found on Flipkart! The chargesheet says there was a one-page writing saying 'Support freedom struggle of J & K' and banners with the same writing. In addition, the allegation is that I was shouting that 'Inquilab Zindabad' and 'Maoist Zindabad' after the arrest…when the police arrested me, I did not move an inch while Accused 3 ran away! I have a huge variety of books in my house, they are not concealed and all are at the main place!", he continued.
"Suppose, an organisation arranges a meeting and I provide food, would that mean I am supporting? The Trial Court looked into all this, analysed the 'Support J & K' banner, pamphlets and other material and said he was studying journalism, he might have inclination to Maoism but that does not mean association. The trial court relied on various judgments of the Supreme Court in this behalf and concluded that mens rea is necessary for sections 38 and 39, that there must be intention to further terrorist activity. It said that terrorist activity is necessary and not just activities of a terrorist organisation! Accordingly, the trial court granted bail. But the High Court said that terrorist act is not necessary and it is enough if one is doing anything in connection with a terrorist organisation. The High Court says that keeping pamphlets, banners in your house is enough to be considered for association with organisation. Kindly mark that the witnesses referred in the High Court do not say anything against me, nothing incriminating…", submitted Mr. Muthuraj.
"What has weighed with the High Court to interfere in your bail and not of Accused 1(Allan Shuhaib)?", asked the bench.
"There are 2 distinguishing factors between me and Accused 1 as per the High Court judgment- that my material is more incriminating than Accused 1 because I had a banner, for which section 13 of the UAPA has been invoked for me alone; and that I was shouting slogans of 'Inquilab Zindabad', 'Maoist Zindabad'. Further, the High Court says that Accused 1 is 20 years while I am 22 years old; and while Accused 1 has psychiatric issues for which he is undergoing treatment, which is not the problem with me", replied Mr. Muthuraj.
In his turn, ASG S. V. Raju, for the NIA, told the court that the absconding third accused in the matter, Usman, has only been recently arrested and that is why the trial has been delayed. "Progress has taken place. The matter is scheduled for framing of charges on Friday, September 24", he told.
At this, Justice Rastogi requested Mr. Muthuraj and Senior Advocate R. Basant, for Shuhaib, to ask their clients to cooperate on September 24. "Even if we hear this matter, we will not be able to pronounce orders by Friday. Please ask you clients to accomodate on Friday, see that the matter is heard by the trial judge for the framing of charges. We are not recording it in the order but by the time the matter is concluded here, we want to have an idea of the charges that have been framed…in our experience, charges are not framed for years and that is why the trial is delayed"
While Mr. Basant readily undertook orally that his client will appear, Mr. Muth Raj suggested that they would be in a better position to assist the court if bail is granted.
To this, the ASG countered that bail may not be granted without hearing him first.
"The matter is not as simple as my learned friend has depicted- that just because some book, some literature was recovered, he cannot be held guilty or it cannot be said that he was associated with a banned organisation! He was arrested while holding a conspiracy meeting. A pamphlet entitled 'Enemies' Tactics and Our Counter-Tactics' was recovered from his house. There was a pamphlet carried precautionary guidelines for underground members of the CPI(Maoist) for avoiding detection by security agencies, destroying evidence and not leaving behind discernible footsteps…there was one notebook having writings of minutes of a meeting of September 15, 2019…you don't find minutes at the place of one who is not a supporter or a member! And they were hidden in a separately locked room of his house!", advanced the ASG.
"There were 2 hand-prepared cloth banners which read 'Support the independence struggle of J & K'. The experts have confirmed that they are in his handwriting. There were 15 notices of some meeting of the proscribed organisation advocating the sessation of J & K that he was circulating. The notice read '…stop occupation of J & K…'. There was a letter which read that '…Kashmir is not an integral part of India…' and which was followed by the petitioner in preparing the posters and notices!", he continued.
"This is not some innocuous or stray incident! This was not some innocent act of a person reading a book! These are confidential documents of a banned organisation for supporting terrorist acts in J & K! This is not literature available in public domain! It reads '…take J & K from India…! These are the activities being engaged in! I would not file a charge-sheet just on a stray book", submitted the ASG.
As the hearing was about to end, Muthuraj submitted that as per his instructions, the case is posted before the trial court on September 24 for submission of FSL Report and not for framing of charges. He added that the ASG may verify this aspect, when the hearing resumes tomorrow.
The hearing shall resume on Wednesday.
The Kerala High Court division bench comprising Justices A Hariprasad and K Haripal in January allowed the appeal filed by the National Investigation Agency against the September 9 order passed by Special NIA Court, Kochi, granting bail to Thwaha, a student of journalism. The High Court said that it was not interfering with the bail granting to Allan Shuhaib at the moment, considering his young age and also his psychiatric issues. The Court also observed that the materials seized from Allan were less "serious" when compared to those seized from Thwaha. The Court also placed particular emphasis on the allegation that Thwaha had uttered pro-Maoist slogans, which the court termed "blameworthy".
The High Court has directed Thwaha to surrender before the trial court. The HC has also given a direction to the NIA Court to complete the trial within one year.
The High Court has also set aside the finding of the trial court that no prima facie case was made out against the accused. The HC observed that the trial court went beyond the scope of prima facie enquiry for the purposes of bail consideration.
"While considering the question whether there is prima facie material to infer commission of offence under Sections 38 and 39 of the Act, the court should have confined to the area of enquiry instead of going haywire.We have no doubt that rights and personal liberty are sacrosanct. Courts are bound to protect it. At the same time, individual rights should subserve the national interest. When individual rights are pitted against national interest and security, the latter should prevail", the judgment authored by Justice K Haripal observed.
The HC observed that the trial court went into a "thread-bare analysis" of the documents on record as if in a trial. Reference was made to the SC decision in NIA v Zafoor Ahmed Shah Watali which held that the totality of the materials should be looked into for the purpose of bail consideration under Section 43D(5).
Arrested In November 2019
They were arrested by the Kerala police in November 2019 under the Unlawful Activities Prevention Act alleging that they were supporting proscribed Maoist groups, which have been declared as terrorist organizations. The NIA took over the case later.
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 national agency cited books, pamphlets, placards, diary notes etc seized from the accused to allege that they were supporters of Maoist ideology. Offences under Sections 38 and 39 of the UAPA which deal with association with a terrorist organization and supporting it with the intention to further its activities, Section 13 of the UAPA (punishment for unlawful activity) and 120B of the Indian Penal Code (criminal conspiracy) were invoked against them.
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 court observed.
The Court further noted the mere possession of books on Communist ideology, Maoism, class struggle, etc., does not prove anything adverse against the accused.
"It becomes adverse only when there is any positive act from the side of the accused to instigate violence. Prima facie there is nothing to suggest any overt act on the side of the accused in this regard", the Court said.