Mere Possession Of Extremist Literature Not 'Terrorist Activity' Under UAPA; No 'Credible Evidence' Against Vernon & Arun: Supreme Court

Gonsalves and Ferreira were arrested in connection with the 2018 caste-based violence that broke out at Bhima Koregaon in Pune, and for having alleged links with the proscribed far-left outfit, Communist Party of India (Maoists). The duo have been in jail since August 2018 for alleged offences under various sections of the Indian Penal Code, 1860, as well as the Unlawful Activities (Prevention) Act. Their bail pleas were earlier rejected by the Bombay High Court.

The UAPA provisions pressed into service are Sections 13 (Punishment for unlawful activities), 16 (Punishment for terrorist act), 17 (Punishment for raising funds for terrorist act), 18 (Punishment for conspiracy, etc.), 18B (Punishment for recruiting of any person or persons for terrorist act), 20 (Punishment for being member of terrorist gang or organisation), 38 (Offence relating to membership of a terrorist organisation), 39 (Offence relating to support given to a terrorist organisation), 40 (Offence of raising fund for a terrorist organisation).

No evidence of terrorist act

Although under ordinary circumstances, an analysis of evidence is not necessary in a bail hearing, but in view of the restrictive provisions of Section 43D of the 1967 Act, some element of evidence-analysis becomes inevitable, the court said, before proceeding to appraise the material placed on record by the National Investigating Agency. Among other things, the prosecution relied on books, pamphlets, some of which were allegedly recovered from Gonsalves and Ferreira’s residence. According to the bench, these books and pamphlets mainly involved writings on extreme left-wing ideology and its application to India. The court notes:

“…The second head of alleged offensive acts of the appellants is keeping literature propagating violence and promoting overthrowing of a democratically elected government through armed struggle. But again, it is not the NIA’s case that either of the two appellants is the author of the materials found in their residences, as alleged. None of these literature has been specifically proscribed so as to constitute an offence, just by keeping them.”

With respect to the alleged offence of committing a ‘terrorist act’ within the meaning of Section 15 of the Unlawful Activities (Prevention) Act, the court concluded that the acts specified in sub-clause (a) of Section 15(1) cannot be attributed to the appellants; an offence under sub-clause (b) of Section 15(1) is not prima facie made out on the basis of the evidence; and there is no allegation against the appellants that would attract sub-clause (c) of Section 15(1).

While discussing the allegation that Gonsalves and Ferreira had ‘overawed’ or attempted to overawe by means or show of criminal force, with the intent of threatening the unity, integrity, security, and sovereignty of the country or strike terror in the people, as defined in Section 15(1)(b), the court specifically dealt with the issue of extremist literature:

“…Some of the literature alleged to have been recovered from the appellants, by themselves give hint of propagation of such activities. But there is nothing against the appellants to prima facie establish that they had indulged in the activities which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts by the appellants to do so. Neither there is allegation against them of causing death of any public functionary or attempt to cause death of such functionary. Mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of Section 15(1)(b). Thus, prima facie, in our opinion, we cannot reasonably come to a finding that any case against the appellants under Section 15(1)(b) of 1967 Act can be held to be true.”

Mere participation in seminars not offence under UAPA

Notably, the court also held that mere participation in seminars by itself cannot constitute an offence under the bail-restricting sections of the 1967 Act, with which Gonsalves and Ferreira have been charged. According to the statement of a protected witness, Ferreira had participated in a seminar organised by the Revolutionary Democratic Front in Hyderabad in the year 2012, while Gonsalves had participated in a September 2017 seminar by an organisation referred to as ‘Virasam’.

The evidence, the bench concluded after examining the material placed on record by the National Investigation Agency was of low probative value or quality:

“The contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused are in the nature of ideological propagation and allegations of recruitment. No evidence of any of the persons who are alleged to have been recruited or have joined this ‘struggle’ inspired by the appellants has been brought before us.

The second set of materials include the witness statements. There also no covert or overt act of terrorism has been attributed to the appellants by the three witnesses…We have also observed earlier that mere possession of the literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of the 1967 Act…There has been no credible evidence against the appellants of commission of any terrorist act or enter into conspiracy to do so to invoke the provisions of Section 43D (5) of the 1967 Act.”

Barring Section 13, all the offences against the duo are under the 1967 Act fall within Chapters IV and VI. The court also noted that the yardstick for securing bail with respect to Section 13 of the Unlawful Activities (Prevention) Act as well as the offences under the Indian Penal Code were ‘lighter’.

Ultimately, the bench held:

“Juxtaposing the appellants’ case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering the fact that almost five years have lapsed since they were taken into custody, we are satisfied that the appellants have made out a case for granting bail. Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them. While dealing with the offences under Chapters IV and VI of the 1967 Act, we have referred to the materials available against them at this stage. These materials cannot justify continued detention of the appellants, pending final outcome of the case under the others provisions of the 1860 Code and the 1967 Act.”

While the Bhima Koregaon-accused and activists have been granted bail, the Supreme Court has insisted on a number of stringent bail conditions, in addition to those that a special NIA court will now formulate.

Case Details

1. Vernon v. State of Maharashtra | Criminal Appeal No. 639 of 2023
2. Arun v. State of Maharashtra | Criminal Appeal No. 640 of 2023

Citation : 2023 LiveLaw (SC) 575

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