UAPA | Supreme Court Refuses To Cancel Bail Of Man Booked Over Alleged ISIS Links, Expunges Madras HC's Remarks

The Supreme Court recently refused to cancel the bail granted to one Asif Musthaheen, booked over alleged ISIS links, Al-Qaeda ideology and plans to kill members of Hindu organisations.

A bench of Justices Surya Kant and Ujjal Bhuyan passed the order. Although the grant of bail, primarily on account of long incarceration, was not interfered with, the Court expunged certain remarks made by the Madras High Court in the impugned order. These related to:

(i) the evidentiary value of text messages;

(ii) prima facie no offence under Section 38 (2) of the Unlawful Activities (Prevention) Act 1967 Act being made out; and

(iii) whether there was any illegality/irregularity on the issue of sanction.

"Such observations by the High Court while deciding a bail application are apparently out of context, and the same are thus expunged, and shall not be treated as a precedent for any other matter" said the bench.

Briefly stated, the case against Asif was that he was a staunch supporter of terrorist Osama-bin-laden was following the ideology of terrorist organization Al-Qaeda, had ISIS links and also intended to kill members of Hindu organizations.

Asif approached the High Court for bail, claiming that he had been in custody since July 2022 and the nature of the allegations did not warrant a prolonged indefinite pre-trial detention. Further, it was submitted that the authorities had not recovered any incriminating evidence except a mobile phone. It was also argued that even if the allegations against Asif were taken to be true, they would not constitute the alleged offences.

Asif alleged that the authorities violated Rule 3 of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008 according to which the recommendation for prosecution by authority should be within seven working days of the receipt of the evidence gathered by the investigating officer under the Code. However, in his case, there was a delay of 60 days and continued detention violated the rights under Article 21 of the Constitution as the sanction itself was vitiated.

The State, on the other hand, opposed the bail plea by bringing to the court's attention an earlier order of the Supreme Court denying bail.

After hearing the parties, the High Court noted that the evidence adduced by the prosecution did not prove that Asif's co-accused was an ISIS member; even assuming him to be an ISIS member, Asif had only intended to be close to the co-accused. It was said that proximity to an individual was different from associating oneself with the terrorist organization to further its activities.

Further, it was observed that though there was an allegation about conspiracy to commit terrorist acts against Hindu religious leaders belonging to BJP and RSS, the prosecution had not shown how it amounted to a terrorist act as defined under Section 15 of UAPA.

Opining that there was no evidence of a conspiracy to commit a terrorist act and detention pending trial could not be indefinite, the High Court said,

“The question as to whether the killing of Hindu religious leaders by itself can constitute a terrorist act is debatable. However, considering the broad probabilities of the case from the materials collected by the prosecution, one cannot definitely conclude that there was a conspiracy to commit a terrorist act, though there is a conspiracy to commit other illegal acts including serious offences."

Case Title: STATE REPRESENTED BY: THE DEPUTY SUPERINTENDENT OF POLICE v. ASIF MUSTHAHEEN, SLP(Crl) No. 015582 / 2024

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