Mere Photos Of 'Osama Bin Laden' Or 'Jihad Promotion' Material In Accused's Mobile Not Enough To Brand Him As ISIS Member: Delhi High Court

While granting bail to an accused in a UAPA case, the Delhi High Court on Monday said that merely because his mobile was found carrying incriminating material like “photographs of terrorist Osama Bin Laden, Jihad Promotion and ISIS flags” and he was accessing lectures of “hard-liner or Muslim preachers” would not be enough to brand him as a member of a banned terrorist organization like ISIS.

A division bench headed by Justice Suresh Kumar Kait said that such type of incriminating material, in today's electronic era, is freely available on World Wide Web and merely accessing and downloading it would not be sufficient to hold that the accused had associated himself with ISIS.

“Any curious mind can access and even download such content. That act by itself, to us, appears to be no crime,” a division bench also comprising Justice Manoj Jain said.

The court made the observations while granting bail to Amar Abdul Rahiman who was arrested by NIA in August 2021. He was charged under Section 120B of Indian Penal Code, 1860, read with Sections 2(o), 13, 38 and 39 of the UAPA.

It was alleged that Rahiman was highly radicalized towards ISIS and entered into criminal conspiracy with known and unknown ISIS members for undertaking “Hijrah” to Jammu and Kashmir and other ISIS controlled territory to join (ISIS) for establishment of Caliphate and to carry out terrorist activities in India.

The NIA alleged that a scrutiny of Rahiman's mobile phone revealed that he had downloaded videos related to ISIS and brutal killings from Instagram using screen recorder option.

The agency further alleged that the mobile also contained photographs of Osama-Bin- Laden, Jihad promotion, ISIS flags etc, which established his radical mindset and association with ISIS.

The question before the court was whether mere fact that the electronic device of Rahiman was containing material showing his radical mindset, would, in itself, be sufficient to hold that he was not only associated with ISIS but also acting in furtherance of its activities?

Granting him bail, the bench ruled that at best, Rahiman can be said to be a highly radicalised person who believed in ideology of ISIS, a banned terrorist organisation. However, it added that his fascination with ISIS cannot be dubbed as if he was associated with ISIS and was furthering its cause.

“Merely because the mobile device of the appellant was found carrying incriminating material including photographs of terrorist Osama bin Laden, Jihad Promotion, ISIS flags etc. and he was also accessing lectures of hard-liner/Muslim preachers would not be enough to brand him as a member of such terrorist organization, much less his being acting in furtherance of its cause...Though such act may give us some insight about his mindset but when we talk about a penal provision which, in essence, takes away the liberty of anyone and where even grant of bail becomes a sort of exception, the prosecution needs to have some extra ammunition in the shape of decipherable and tangible material,” the court said.

It added that there was no other fact and circumstance which may indicate the element of conspiracy and merely because Rahiman had downloaded certain software like MobileSafari or Telegram, would not mean anything substantial as the same are available in public domain.

The court observed that no adverse inference can be drawn merely because of the fact that such material was found downloaded in Rahiman's mobile.

“At best, the appellant was highly radicalized and had downloaded pro-ISIS material and was accessing the sermons of Muslim hard-liner but that would not be enough to attract Section 38 and Section 39 of UAPA,” the court said.

It added: “Even if, for a moment, we assume that the appellant is associated with ISIS or that he was supporting such organization, it is sine qua non for the prosecution to have further established the most crucial ingredient of mens rea i.e. acting with intention to further the activities of such terrorist organization. This crucial in-built ingredient of Section 38 and Section 39 cannot be left for imagination.”

The court also said that there were certain videos and files of incriminating nature which were bound to raise eyebrows but Rahiman was merely downloading and storing its contents on his mobile and there was nothing on record to indicate that he made any endeavour to disseminate or broadcast or transmit the content to anyone.

“These images/videos/photographs can, though, give us some glimpse of what was travelling through his mind but fail to establish that he was acting in furtherance of activities of ISIS,” the court said.

Allowing the plea, the bench directed that Rahiman be released on bail on the terms and conditions as the concerned Special Court may consider fit and proper.

“We also wish to clarify that the observations made hereinabove are tentative in nature and are purely for the purpose of deciding the bail. Learned Trial Court shall not feel persuaded by any of the observations made hereinabove which are, obviously, not a final expression about the merits of the case,” the court said.

Counsel for Appellant: Ms. Nitya Ramakrishnan, Sr. Advocate with Mr. Archit Krishna, Ms. Tamanna Pankaj and Ms. Stuti Rai, Advocates

Counsel for Respondent: Ms. Aishwarya Bhati, ASG with Ms. Zeenat Malick, PP, Mr. Akshai Malik, SPP, Mr. Rustam, Mr. Akshay Sehgal Mr. Khawar Saleem, Mr. Arun Kumar and Ms. Poornima, Advocates for NIA

Title: AMMAR ABDUL RAHIMAN v. NATIONAL INVESTIGATION AGENCY

Citation: 2024 LiveLaw (Del) 552

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