Merely Threatening By Claiming To Be Associated With ISIS Terrorists Not By Itself UAPA Offence: Madras High Court

“We are of the view that merely because the appellant had threatened the person stating that he was associated with an ISIS terrorist, it would by itself not be a reasonable ground to hold that he had supported a terrorist organization. The threat would certainly amount to an offence but not an offence under Section 39 of the UA (P) Act. The prosecution has to establish the support to the terrorist organisation by independent evidence,” the court said.

The bench of Justice SS Sundar and Justice Sunder Mohan also observed that the materials produced by the prosecution did not show an intention to support the terrorist organization but only showed that the appellant had handled the funds for the prime accused which was different than supporting a terrorist organization. The court added that for bail while alleging conspiracy under the UAPA Act, it was necessary to show exactly what the terrorist act was agreed to be committed.

“The allegation of conspiracy to commit a terrorist act must spell out the object of the conspiracy (i.e) as to what exactly was the terrorist act that was agreed to be committed. However, we may hasten to add that the above observations are made only for arriving at a prima facie satisfaction for the purpose of considering the bail application on the basis of the broad probabilities of the case,” the court said.

The court was hearing an appeal preferred by one Mohamed Irfan challenging denial of bail. Irfan along with others was found in the car intercepted by the police on the information that it was carrying arms and weapons. Subsequently the NIA was entrusted with the investigation and case was registered for offences under the IPC and the Arms Act. The Government also accorded sanction to prosecute the accused for offences under the UAPA.

As per the final report, the prime accused along with the appellant had indulged in anti-national activities in the name of Khilafah Party of India, and Intellectual Students of India (ISI). It was also alleged that the appellant had conducted at Tamil Nadu Haj Services Society by A1 and others for discussing about ideologies of ISIS, and for promoting Khilafah Party of India, which was formed with a motto to establish Islamic rule in India by waging war and overthrowing the Government lawfully established.

Irfan contended that the Final report was based on surmises and conjectures and that there was no material to charge him under the UAPA. He submitted that the prosecution could only establish that he was associated with the prime accused and not the terrorist organisation. He added that he was a meat dealer and had supplied meat to the prime accused during the Bakrid festival.

While opposing the bail, the prosecution submitted that as per the witness statements, Irfan had threatened some witnesses by claiming that his leader, the prime accused and others were ISIS terrorists and also threatened to kill the witness. It was also submitted that Irfan had threatened another witness by claiming that he was a close associate of the prime accused and used to deal with their funds illegally.

The court noted that though while assessing prima facie case, even a grave suspicion is sufficient to frame a charge, when the liberty of a person was being denied, the test to assess the prima facie case would be different. The court noted that as per the Act, the accusations must not only be grave, but the materials against the accused must be cogent at all stages.

Restriction Under UAPA Does Not Mean Rights Taken Away

While discussing the restrictions under Section 43D of the UAPA, the court also noted that the restriction only mean that the courts cannot grant bail on mere asking and that there must be reasons for granting bail. The court added that the restrictions could not be read to mean that the basic human rights or the constitutional rights were taken away.

“The Judgements referred to above would also indicate that the above restriction in the proviso to Section 43 D (5) of the UA (P) Act is a slight departure from the bail jurisprudence, namely that bail is the rule and the jail is an exception. It only means that while considering a bail application, the Courts cannot grant bail on mere asking, and there must be reasons for the grant of bail. However, the above restriction found in the proviso to 43 (5) of the UA(P) Act cannot be read to mean that the basic human right or the constitutional right of a person is taken away,” the court observed.

With respect to the present case, the court observed that the requisite intention to support a terrorist organization could not be inferred from the materials produced by the prosecution. The court also noted that the charges were yet to be framed and the trial was also not likely to be completed within a reasonable time. Thus, emphasizing that pre-trial detention could not be indefinite, the court deemed it fit to grant him bail on conditions.

Counsel for the Appellant: Mr.I.Abdul Basith

Counsel for the Respondent: Mr.R.Karthikeyan Special Public Prosecutor (for NIA cases)

Citation: 2023 LiveLaw (Mad) 354

Case Title: Mohamed Irfan v Union of India

Case No: Criminal Appeal No.340 of 2023