UAPA | Article 21 Can't Be Stretched To Protect Those Posing A Threat To Nation's Sovereignty & Integrity: Karnataka High Court

The Karnataka High Court while dismissing an appeal by an accused charged under the Unlawful Activities (Prevention) Act, said “Article 21 cannot be stretched too long to afford protection to persons who have least concern for rule of law and pose threat to sovereignty and integrity of the nation.”

A division bench of Justices Sreenivas Harish Kumar and Vijaykumar A Patil dismissed the appeal filed by accused Mazin Abdul Rahman who is charged with sections 120B, 121, 121A of IPC and sections 18, 20 and 38 of Unlawful Activities (Prevention) Act, for being associated with banned terrorist outfit Islamic State (IS), challenging the order of the special court refusing bail to him.

It said “Article 51(A)(a) obligates every citizen of India to abide by the Constitution and respect its ideals and institutions, the national flag and the national anthem. Clause (c) mandates every citizen to uphold and protect the sovereignty, unity and integrity of India. These are fundamental duties of every citizen.”

“The appellant being a citizen of India is obligated to perform his duties and instead if he becomes a member of an organisation conspiring to wage war against India and show defiance to the Constitutional mandates, it is surprising that he tries to invoke Constitutional jurisdiction of this court, it added.

Background

It was alleged that the accused was part of a banned terrorist organisation IS and he conducted recce of the targets in Mangalore to conduct arson being in close contact with the other co-accused. The intention of all the accused was to wage war against India, it was argued.

The appellant-accused argued that except for the allegation that he was involved in conducting recce, there are no allegations against him indicative of his involvement in anti-national activities. The charge sheet discloses that accused No.2 induced the appellant to conduct recce. This allegation is also based on the voluntary statement said to have been given by accused No.2, it was submitted.

It was submitted that the investigating officer relied on Call Detail Records ('CDRs' for short), but the phone was not in the name of the appellant but his mother and there was no evidence that the appellant made use of the telephone of his mother.

Further, it was argued that the chargesheet also indicates IPDR chats in which the name of the appellant was not there and the laptop of the appellant contained some downloaded information, he was projected to be a member of a conspiracy about which there were no materials at all.

Finally, it was submitted that in Section 43D(5) of the UAP Act, the accusation against the appellant must prima facie appear to be true. Here if the entire charge sheet is scrutinised, it cannot be said that there is prima facie truth in the accusations made against the appellant and therefore he was entitled to claim bail, it was argued.

The prosecution opposed the appeal submitting that the intention of all the accused was to wage war against India. It was argued that the appellant used several encrypted communication platforms and received several incriminating materials. The CDR indicates the proximity of the appellant with accused No.2. The statements of the witnesses interrogated by the investigator showed that the appellant had downloaded the materials/preachings from the dark web, it was argued.

Further, it was stated that the statement of the appellant in the presence of independent witnesses along with the statement of CW193 would indicate that the appellant was involved with accused No.2, and his active participation in the furtherance of the conspiracy with co-accused persons, falling within the ambit of section 18 of the UAP Act.

According to section 43 D (5) of the UAP Act, the court has to arrive at a satisfaction that the accusation is prima facie true. Once the materials indicate that the accusations are prima facie true, the consideration of other factors for granting bail does not arise, the State argued. 

The bench on going through the material collected by the National Investigation Agency as produced in the chargesheet against the accused noted that the trial court has observed that there are reasonable grounds for believing that accused no.6 was a part of a larger conspiracy to further the activities of Islamic State and to wage war against India.

Further, it said “Appellant does not dispute the fact that he and accused no.2 were classmates while perusing engineering course. The allegation is that accused no.2 radicalised the appellant. In order to demonstrate the truth in this allegation, the NIA has collected materials which indicate regular contact between accused no.2 and the appellant.”

Rejecting the contention of the appellant that the phone number did not belong to him and was of his mothers, the court said that though the SIM stood in the name of the mother of the appellant, the materials indicated that the same SIM was being used by the appellant. It was found that accused No. 2 was already a member of the Islamic State and he radicalised the appellant.  

“Appellant was radicalised by accused no.2 for the cause of organisation (IS) and is a member of proscribed terrorist organisation. As a part of larger conspiracy appellant participated in recce activities at Mangaluru along with accused no.2 for conducting arson with intention to wage war against India. He also used encrypted communication platforms on the instructions of accused no.2 for receiving the radicalised contents. Digital devices were seized from him and all those things reveal a lot of incriminating materials relating to Islamic State. The accusations thus found in the charge sheet do not appear to be imaginary, rather they are the result of analysis of the data found in the devices recovered from the possession of the appellant," it held,

It further observed that the statements of the protected witnesses showed that the appellant was fully radicalised and had formed an opinion that the Indian Government was against the Muslims and that the Indian Army was harassing the Kashmirians to which Jihad was the only answer. He was found to be in conscious possession of materials challenging the sovereignty of India.

Court held that Section 18 of the UAP Act envisages punishment not only for conspiracy but also for other acts such as attempts to commit a terrorist act, advocating, abetting, advising, inciting, facilitating directly or knowingly, the commission of a terrorist act or any act preparatory to the commission of a terrorist act.

Conducting recce at some places was to facilitate the commission of a terrorist act, it concluded.

Accordingly, the Court denied the prayer for bail and dismissed the appeal. 

“It is our considered view that Constitutional powers cannot be exercised when materials produced before the court prima facie show or indicate threat to unity, integrity and sovereignty of our country, instead it is the duty of the Constitutional Courts to protect the nation and its society from such people who indulge in anti national and anti societal activities. Without the nation there is no Constitution," it

Appearance: Advocate S.Balakrishnan for Appellant.

Special Public Prosecutor P. Prasannakumar for the Respondent.

Citation No: 2024 LiveLaw (Kar) 97

Order details to be added shortly.