Delhi High Court
Suhail Ahmad Thokar vs National Investigation Agency on 22 September, 2023
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Pronounced on: 22.09.2023
CRL.A. 286/2023
SUHAIL AHMAD THOKAR ..... Appellant
Versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Kartik Murukutla, Advocate
For the Respondent : Mr. Gautam Narayan, SPP with Ms. Asmita Singh, Ms.
Akriti & Mr. Harshit Goel, Advocates for NIA
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
SIDDHARTH MRIDUL, J
1. The present appeal under Section 21(4) of the National
Investigating Agency Act, 2008 (hereinafter referred to as „the NIA
Act‟) read with Section 482 of the Code of Criminal Procedure, 1973
(hereinafter referred to as „the Cr.P.C.‟) assails the order dated
07.01.2023 passed by the Additional Sessions Judge-03, Special Judge
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(NIA), Patiala House Courts, New Delhi, in the case arising out of
RC-29/2021/NIA/DLI, registered by the NIA under Sections 120B,
121A, 122, 123 of the Indian Penal Code, 1860 (hereinafter referred to
as „IPC‟) and under Sections 18, 18A, 18B, 20, 38 & 39 of the
Unlawful Activities (Prevention) Act, 1967, (hereinafter referred to as
„the UAPA Act‟), whereby the bail application instituted on behalf of
the appellant was dismissed.
2. Briefly, the facts as are necessary for the adjudication of the
present appeal are encapsulated as under:-
2.1. It is the case of the prosecution that an FIR was registered
subsequent upon the receipt of intelligence regarding the
incubation of a larger conspiracy in the Kashmir valley. It is
alleged by the prosecution, that the conspiracy,
encompassed both the physical realm, as well as in the
digital domain and had been orchestrated by violent and
proscribed terrorist groups, including Lashkar-e-Taiba
(LeT), Jaish-E-Mohammed (JeM), Hizb-ul-Mujahideen
(HM), Al-Badr, as well other terrorist groups pointed
elaborated in the charge sheet. It is further alleged that these
groups were allegedly associated with entities such as „The
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Resistance Front (TRF), People Against Fascist Force
(PAFF), and Mujahideen Ghazwat-ul-Hind (MGH)‟.
2.2. It is furthermore alleged that, during the course of the
investigation, it was unearthed that, the aforementioned
terrorist groups, in collaboration with their facilitators and
leaders based in Pakistan, along with their Over-Ground
Workers within India, were involved in influencing and
radicalizing susceptible local youth. It is also alleged that,
the objective was to recruit and train these young
individuals for participating in acts of terrorism, which
included handling weapons, ammunition, and explosive
materials. These actions were intended to execute acts of
terrorism, involving attacks on civilians and security forces,
with the intention of spreading fear within the Kashmir
Valley and in various regions of India, subsequent to the
revocation of Article 370 from the Constitution of India.
2.3. It is further the case of the prosecution that, based on the
abovementioned intelligence, the National Investigation
Agency (NIA) lodged the present FIR No: RC-
29/2021INIA/DLI under Sections 120B, 121A, 122, 123 of
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the IPC, and Sections 18, 18A, 18B, 20, 38, 39 of the UAPA
Act. It is alleged in the charge sheet that the investigation
had revealed that the larger conspiracy was masterminded
by high-ranking leaders of various terrorist organizations,
including Lashkar-e-Taiba (LeT), Hizb-ul-Mujahideen
(HM), Al-Badr and other entities situated in Pakistan. It is
further alleged that, the conspiracy was conceived
subsequent to the revocation of Article 370, with the
objective of reigniting acts of terrorism in Jammu and
Kashmir, as well as, in other regions of India and to
accomplish this malevolent objective, a central organization
known as the "United Jihad Council" (UJC) was established
as part of a larger conspiracy, in collaboration with other
proscribed terrorist groups.
2.4. It is further alleged that, the entire operation was
orchestrated under the guidance and support of Pakistan‟s
Intelligence Agency i.e. „Inter-Services Intelligence‟ (ISI).
The investigation further unveiled the formation of
"coordination groups" as an integral facet of the conspiracy,
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responsible for strategizing terrorist operations in the
Kashmir Valley.
2.5. It is furthermore alleged that, these groups included
individuals, who were outwardly engaged in lawful pursuits;
but functioned as Over-Ground Workers, executing small-
scale violent terrorist acts, like targeting civilians and
military personnel.
2.6. The case of the prosecution in the subject charge sheet is
that, the appellant played an active role in providing refuge
to members of the aforementioned terrorist organizations
and their associates within his domicile, with the aid of his
acquaintances. The appellant was consequently arrested on
20.10.2021 and the chargesheet was filed against him and
co-accused persons under Sections 120B, 121A, 122, 123
IPC in conjunction with Sections 18, 18A, 18B, 20, 38, and
39 of the UAPA Act.
2.7. The bail application instituted on behalf of the appellant was
dismissed by the learned trial court vide order dated
07.01.2023, impugned in the present appeal, observing
therein that the prosecution has been able to show that there
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is prima facie evidence to substantiate the case and the
accusations levelled against the appellant.
3. Mr. Kartik Murukutla, learned counsel appearing on behalf of
the appellant vehemently assails the impugned order whilst submitting
that there exists a conspicuous absence of material evidence
implicating the Appellant in any criminal conspiracy with the alleged
terrorist organizations; and specifically that the record remains bereft
of any indicia establishing a nexus between the Appellant and the co-
accused persons indicted in the chargesheet. It is contended on behalf
of the appellant that the evidence tendered by the prosecuting agency
held minimal probative value and while considering the prima facie
case against the appellant, the prima facie threshold could not have
been met without a preliminary assessment of the evidentiary
probative value. It is urged that, this evaluation becomes pivotal in
considering the case against the appellant during the stage of grant of
bail, as the substantive nature or weight of the probative value must
align with the satisfaction of the Court.
4. Learned counsel appearing on behalf of the appellant further
contended that there existed no substantive evidence on record to
corroborate a nexus between the Appellant and the "larger
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conspiracy", which is stated to be the genesis for registration of the
present FIR. Furthermore, it was contended that there was an evident
dearth of proof associating the appellant with any conspiracy related to
the origination and implementation of "hybrid terrorism".
Additionally, learned counsel representing the appellant has placed
significant emphasis on the fact that the learned Trial Court, in its
impugned judgment, relied heavily upon patently inadmissible
evidence, specifically the disclosure statement of the appellant, and
erroneously arrived at the conclusion that the said disclosure statement
resulted in the "discovery of fact".
5. The learned counsel representing the appellant further
contended that nothing incriminating was recovered from the
possession of the appellant. It was urged that the document marked as
D172 (Explanation Memorandum of Forensic Data extracted from the
confiscated Digital Devices) did not encompass any content,
establishing a link between the appellant and the larger conspiracy.
The "Explanation" which has been ascribed to the appellant in the
above mentioned document was inadmissible and appeared to be an
endeavor to gloss over and overcome the conspicuous lack of
evidence, demonstrating the involvement of the appellant in any
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online group linked with the above mentioned terrorist organizations
or dissemination of criminal content within those online groups.
6. Learned counsel representing the appellant further contended
that the case of the prosecution rests upon the statement of two
witnesses Uzair Ahmad Ganie (PW-271) and Fayaz Ahmad Ganie
(PW-272), recorded under Section 161 of the Cr.P.C., wherein they
fail to implicate the appellant in the alleged conspiracy. It was further
emphasized that the testimony of PW-271, merely offers ambiguous
and general information that lacks any incriminating value since the
above mentioned witness characterized the appellant merely as a
"friend" of a "militant"; a fact that intrinsically holds no material
significance in establishing the appellant‟s link with the present case.
The statement of PW-272 only alludes to an incident wherein the
appellant allegedly visited the residence of the said witness in the year
2020, accompanied by two individuals, identified ipse dixit as
"militants". Significantly, the said witness has conspicuously
abstained from providing any specific detail regarding the manner in
which he discerned that the accompanying persons were "militants".
7. Learned counsel appearing on behalf of the appellant further
submitted that a mere connection or endorsement of a terrorist
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organization does not meet the essential pre-requisites for invoking the
charges delineated under Sections 38 and 39 of the UAPA Act.
Learned counsel also contends that in order to establish an offence
under the above said sections, it is imperative that the affiliation or
support in question is directed towards advancing the objectives of the
said terrorist organization; which intent can only be inferred from the
explicit action or demonstrable participation in the activities of the
proscribed organization, as corroborated by the evidence tendered
within the chargesheet.
8. Learned counsel appearing on behalf of the appellant further
submitted that the jurisprudence concerning bail is well-established
and consistently reaffirmed through a series of judgments pronounced
by the Hon‟ble Supreme Court of India and various High Courts.
These judicial pronouncements have emphasized the gravity of
curtailing an individual‟s liberty thereby necessitating an array of
inexhaustible safeguards, principles, and guidelines. The Apex Court
and High Courts have consistently reiterated the principle that „bail is
the rule, jail is the exception,‟ requiring harmonizing the mitigating
circumstances in favor of the accused, thereby maintaining an
equilibrium and facilitating bail under a lenient approach.
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9. Lastly, it was urged by the learned counsel appearing on behalf
of the appellant that the investigation against the Appellant has
reached its culmination, and the chargesheet has been filed,
designating the Appellant as accused no. 25 therein. The Appellant,
presently in the capacity of an undertrial is languishing in judicial
custody and given the protracted nature expected of the on-going trial;
it is respectively submitted that the Appellant is ex debito justitiae
entitled to be released on bail.
10. In order to buttress his exhaustive submissions Mr. Kartik
Murukutla, learned Counsel appearing on behalf of the appellant, has
placed reliance on the following decisions:-
i. National Investigation Agency vs. Zahoor Ahmad
Shah Watali reported as (2019) 5 SCC 1;
ii. Ranjitsing Brahmajeetsing Sharma vs. State of
Maharashtra & Anr reported as (2005) 5 SCC 294;
iii. Thwaha Fasal vs. Union of India, reported as (2021)
SCC Online SC 1000;
iv. Iqbal Ahmed Kabir Ahmed vs. State of Maharashtra,
reported as 2021 SCC Online Bom 1805;
v. Yedala Subba Rao and Another vs. Union of India
reported as (2023) 6 SCC 65;
vi. Jyoti Babasaheb Chorge vs. State of Maharashtra
reported as 2012 SCC Online Bom 1460;
vii. Sudesh Kedia vs. Union of India reported as (2021) 4
SCC 704;
viii. State vs. Nalini reported as (1999) 5 SCC 253;
ix. P.K. Narayanan vs. State of Kerala reported as (1995)
1 SCC 142;
x. John Pandian vs. State reported as (2010) 14 SCC 129;
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xi. Asif Iqbal Tanha vs. State (NCT of Delhi) reported as
2021 SCC Online Del 3253;
11. Per Contra, Mr. Gautam Narayan, learned Special Public
Prosecutor appearing on behalf of the State, would categorically
oppose the submissions made on behalf of the Appellant by
vigorously urging that the learned Trial Court rightly rejected the
Appellant‟s bail application through a judiciously reasoned order;
meticulously addressing each and every speculative argument
articulated by the appellant. Moreover, the said order does not exhibit
any legal infirmity warranting any intervention by this Court.
12. Learned Special Public Prosecutor appearing on behalf of the
State further submitted that, the appellant is attempting to divert the
attention of this Court and seeking the conduct of a mini-trial
requiring delving into statements of the of witnesses recorded under
Section 161 Cr.P.C. as well as meticulous in depth scrutiny of the
evidence; which indubitably is impermissible in law, at the stage of
adjudicating a bail application. Mr. Narayan, learned SPP has further
submitted that this Court is obligated only to consider the prima facie
case against the appellant, as envisaged under Section 43 (D) (5) of
the UAPA Act, and the limitations prescribed under Section 437 of the
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Cr.P.C.
13. Learned Special Public Prosecutor appearing on behalf of the
State, further argued that in order to adjudge a prima facie case against
the appellant, it is of paramount importance to give due regard to the
accusations put forth against the appellant in the chargesheet. The
allegations portray the appellant as an integral member of a collective
group of terrorists operating under the direction of terrorist
organizations situate in Pakistan. The modus operandi involves
disseminating and propagating the ideology of the said terrorist
organizations within the Kashmir valley, with the intent of achieving
radicalization and recruitment for their cause from amongst the
general populace. Additionally, actively engaging in facilitating
terrorist activities by coordinating and providing logistical support to
militants situated in Kashmir valley. The prosecution relies heavily
upon the evidentiary material annexed within the chargesheet, to
demonstrate the active involvement of the appellant in sharing
materials eulogizing and endorsing slain terrorists and proscribed
terrorist groups. This sharing occurs across various online forums and
social media platforms; thereby serving the dual purpose of
radicalization as well as recruitment of local youth, for instigating fear
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and terror in general public and promoting terrorist activities within
the Kashmir Valley. Mr. Narayan, learned SPP further submitted that
the prosecution is clearly able to establish that the appellant played an
active role in arranging logistical support for militants in the Kashmir
valley. The statement of PW-272, a pivotal witness in this narrative,
leaves no room for doubt in indicating that the appellant took
affirmative steps to secure shelter for two militants. Mr. Narayan
further contends that the statements of both PW-271 and PW-272
corroborate the fact that the Appellant was affiliated with the network
of terrorism. Hence, is it urged that there exists ample evidence
requisite for arriving at the conclusion that the allegations leveled
against the Appellant are prima facie true, as sufficient to meet the
requirements of Section 43D(5) of the UAPA.
14. Mr. Gautam Narayan, Learned Special Public Prosecutor further
submitted that the Learned Trial Court has appositely relied on the
principles laid down by the Hon‟ble Supreme Court in the case of
National Investigation Agency vs. Zahoor Ahmad Shah Watali,
reported as (2019) 5 SCC 1, to support the assertion that, when
considering a bail application under Section 43D(5) of the UAPA Act,
the court should presume that the evidence presented by the
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prosecution holds sway unless rebutted or contradicted. Subsequently,
the court must only assess whether this evidentiary material is "good
and sufficient on the face of it" to establish the foundational elements
of the alleged offence. The Learned Trial Court, it is underlined, has
also taken cognizance of the fact that as per the legal doctrine
propounded in Watali (supra), the merits of the evidence against the
accused cannot be analyzed at the stage of bail.
15. It was further submitted by Learned Special Public Prosecutor
that in Watali (supra), the Hon‟ble Supreme Court has expounded
upon the extent of inquiry permissible when considering a bail
application under Section 43D(5) of the UAPA Act. The Apex Court
clearly emphasized the importance of arriving at a conclusion based
on broad probabilities regarding the involvement and participation of
an accused in the commission of the offence, without delving into a
detailed analysis of the merits and demerits of the evidence, at this
stage.
It was further argued by Mr. Gautam Narayan, learned SPP that the
Apex Court in Watali (supra), explicitly criticized the approach taken
by the High Court, in that case, where the admissibility of evidence
against the accused was considered; whilst reiterated that the
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principles laid down under Section 43D(5) of the UAPA Act, requires
that the allegations against the accused, as presented in the FIR, along
with the material cited in the chargesheet, should prevail unless
disproved. Therefore, when evaluating a bail application, the question
of the admissibility of evidence should not be entertained.
Furthermore, the entirety of the allegations and material contained
within the FIR, case diary and chargesheet must be considered to
determine the prima facie veracity of the accusations against the
accused.
16. It was further urged by Mr. Gautam Narayan, learned SPP that
the Appellant has placed reliance upon the judgment of the Hon‟ble
Supreme Court of India in the case of Ranjitsing Brahmajeetsing
Sharma vs. State of Maharashtra & Anr reported as (2005) 5 SCC
294, to assert that bail should be granted if the material relied upon by
the prosecution shall not ultimately lead to the conviction of the
accused. In this behalf it was submitted by the Learned Special Public
Prosecutor that, the case of the Appellant is that the document i.e.
D172 is inadmissible in evidence and that the statements of PW-271
and PW-272 are vague, leading to the conclusion that his conviction is
highly improbable; which contention does not hold any water.
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17. Mr. Gautam Narayan, learned SPP further submits that the
reliance placed by the Appellant on Ranjitsing (supra) is totally
misconceived and the arguments put forth by the appellant regarding
the admissibility of material in the chargesheet are inappropriate at
this stage, in view of the settled legal principles enunciated in Watali
(supra). As elucidated in Watali (supra), the standard of satisfaction
required for the Court to conclude that the allegations against the
accused are prima facie true is less stringent than to opine an accused
not guilty under Section 21(4)(b) of MCOCA, the provision under
which bail was sought in Ranjitsing (supra). It was further submitted
by Learned Special Public Prosecutor that the statements relied upon
by the Prosecution are not vague and as observed in Watali (supra),
the Court cannot delve into an examination of the admissibility of
evidence at the stage of deciding a bail application. Therefore, the
arguments advanced by the Appellant on the basis of Ranjitsing
(supra) are specious.
18. Learned Special Public Prosecutor appearing on behalf of the
State, further submitted that the Appellant has additionally sought to
rely upon the judgment of the Hon‟ble Supreme Court of India in the
case of Vernon v State of Maharashtra & Anr. reported as 2023 SCC
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OnLine 885, to assert that even at the stage of adjudicating a bail
application under the UAPA Act, the Court must conduct, a surface-
level analysis of the probative value of the material and the evidence
produced by the prosecution, in order to arrive at a conclusion that the
allegations against the accused are "prima facie true." In this behalf
it is urged that it is noteworthy to observe that the case of Vernon
(supra) can be distinguished from the circumstances of the present
case inasmuch as the evidentiary materials in the relied upon case
were predominantly „hearsay‟ in nature as the statements referred to
therein did not attribute any overt or covert act of terrorism to the
subject accused.
19. It was further argued by the Learned Special Public Prosecutor
that the Appellant has placed reliance on the judgment of the Apex
Court in the case of Thwaha Fasal v Union of India reported as 2021
SCC OnLine 1000, in order to assert that mere affiliation or
endorsement of a terrorist organization did not tantamount to the
commission of an offence under the provisions of Sections 38 and 39
of the UAPA Act. In order to establish an offence under the
aforementioned sections, it was urged by the learned counsel
appearing on behalf of the appellant that, the affiliation or
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endorsement was with the avowed intention of advancing the pursuits
of the specified terrorist organization. The requisite intention could
solely be deduced from the explicit actions or instances of direct
involvement in the operations of the said terrorist organization, as
elucidated by the evidence produced in the chargesheet. Mr. Narayan,
learned SPP would urge that in Thwaha Fasal (supra), the
chargesheet filed relied upon the information disseminated by CPI
(Maoist), as well as the vocalization of slogans endorsing CPI
(Maoist) by the accused therein during his arrest. Considering the
nature of the evidence produced against the said accused, the Hon‟ble
Supreme Court of India, in that case determined that, the evidence
provided was grossly inadequate to establish the commission of
offences, stipulated under Sections 38 and 39 of the UAPA Act. On
the other hand, in the present case, it is evident from the material
annexed with the chargesheet that, the Appellant endeavored to secure
lodging for two members affiliated with Jaish-E-Mohammed (JeM)
within the Kashmir valley. Therefore, the ratio in Thwaha Fasal
(supra) is not attracted in the present case as the prosecution has
adduced cogent material, showcasing the Appellant‟s direct
involvement in aiding and providing shelter to the members of a
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proscribed terrorist organization.
20. The Learned Special Public Prosecutor has submitted that, the
Learned Trial Court had rightly rejected the appellant‟s bail
application by a well-reasoned order dealing with each and every
speculative argument canvassed by the latter. The learned SPP has
further submitted that the impugned order does not suffer from any
illegality, so as to warrant any interference by this Court.
21. Lastly, it was urged by the learned Special Public Prosecutor,
that in the present case, the bar under Section 43D (5) of the UAPA
Act, pertaining to the grant of bail stands resolute, in view of the fact
that there exists significant evidence available on the record to
substantiate the prima facie veracity of the accusations alleged against
the appellant.
22. We have heard and carefully considered the submissions made
on behalf of the learned counsel representing the parties and have
perused the impugned judgment and the evidence adduced in the
charge sheet.
23. The Hon‟ble Apex Court, in the case of Watali (supra), made
an important observation regarding the consideration of evidence and
material presented by the prosecution in relation to accusations made
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in the First Information Report (FIR). The Court emphasized that, at
the preliminary stage of bail, the material and evidence collected by
the prosecution should be accorded weight and ought to prevail unless
contradicted, overcome, or disproved by other evidence. Furthermore,
the Court enunciated that at this preliminary stage, it was unnecessary
for the court to conduct an exhaustive examination of the material in
the charge sheet, with the primary focus being on the subject material
and evidence provided in the FIR. Any subsequent evaluation ought to
be conducted with due consideration of the initial evidence. This
observation underscores the principle that during the early stages of
the proceeding, the prosecution's evidence and material should be
given significant weightage, and the court should eschew an elaborate
examination on the merits of the case. The exposition of the law is
extracted herein below:-
"23. By virtue of the proviso to sub-section (5), it is the duty
of the Court to be satisfied that there are reasonable grounds
for believing that the accusation against the accused is prima
facie true or otherwise. Our attention was invited to the
decisions of this Court, which has had an occasion to deal with
similar special provisions in TADA and MCOCA. The principle
underlying those decisions may have some bearing while
considering the prayer for bail in relation to the offences under
the 1967 Act as well. Notably, under the special enactments such
as TADA, MCOCA and the Narcotic Drugs and Psychotropic
Substances Act, 1985, the Court is required to record its opinion
that there are reasonable grounds for believing that the accused is
"not guilty" of the alleged offence. There is a degree of
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difference between the satisfaction to be recorded by the
Court that there are reasonable grounds for believing that
the accused is "not guilty" of such offence and the
satisfaction to be recorded for the purposes of the 1967 Act
that there are reasonable grounds for believing that the
accusation against such person is "prima facie" true. By its
very nature, the expression "prima facie true" would mean
that the materials/evidence collated by the investigating
agency in reference to the accusation against the accused
concerned in the first information report, must prevail until
contradicted and overcome or disproved by other evidence,
and on the face of it, shows the complicity of such accused in
the commission of the stated offence. It must be good and
sufficient on its face to establish a given fact or the chain of
facts constituting the stated offence, unless rebutted or
contradicted. In one sense, the degree of satisfaction is lighter
when the Court has to opine that the accusation is "prima
facie true", as compared to the opinion of the accused "not
guilty" of such offence as required under the other special
enactments. In any case, the degree of satisfaction to be
recorded by the Court for opining that there are reasonable
grounds for believing that the accusation against the accused
is prima facie true, is lighter than the degree of satisfaction to
be recorded for considering a discharge application or
framing of charges in relation to offences under the 1967 Act.
Nevertheless, we may take guidance from the exposition in
Ranjitsing Brahmajeetsing Sharma [Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra, (2005) 5 SCC 294 : 2005
SCC (Cri) 1057] , wherein a three-Judge Bench of this Court was
called upon to consider the scope of power of the Court to grant
bail. In paras 36 to 38, the Court observed thus: (SCC pp. 316-
17).
24. In light of the elucidation in Ranjitsing (supra), the Hon‟ble
Supreme Court of India further observed as follows in paragraph 24 of
Watali (supra):-
"24. A priori, the exercise to be undertaken by the Court at
this stage--of giving reasons for grant or non-grant of bail--
is markedly different from discussing merits or demerits of
the evidence. The elaborate examination or dissection of the
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evidence is not required to be done at this stage. The Court is
merely expected to record a finding on the basis of broad
probabilities regarding the involvement of the accused in the
commission of the stated offence or otherwise."
25. Further, following a meticulous evaluation of the evidence
gathered by the investigating agency, the Hon‟ble Supreme Court of
India, in Watali (supra), made the following observations:-
"25. From the analysis of the impugned judgment [Zahoor
Ahmad Shah Watali v. NIA, 2018 SCC OnLine Del 11185] ,
it appears to us that the High Court has ventured into an
area of examining the merits and demerits of the evidence. For,
it noted that the evidence in the form of statements of
witnesses under Section 161 are not admissible. Further, the
documents pressed into service by the investigating agency
were not admissible in evidence. It also noted that it was
unlikely that the document had been recovered from the
residence of Ghulam Mohammad Bhatt till 16-8-2017 (para
61 of the impugned judgment). Similarly, the approach of the
High Court in completely discarding the statements of the
protected witnesses recorded under Section 164 Cr.P.C., on
the specious ground that the same was kept in a sealed cover
and was not even perused by the Designated Court and also
because reference to such statements having been recorded was
not found in the charge-sheet already filed against the
respondent is, in our opinion, in complete disregard of the
duty of the Court to record its opinion that the accusation
made against the accused concerned is prima facie true or
otherwise. That opinion must be reached by the Court not
only in reference to the accusation in the FIR but also in
reference to the contents of the case diary and including the
charge-sheet (report under Section 173 CrPC) and other
material gathered by the investigating agency during
investigation.
26. Be it noted that the special provision, Section 43-D of the
1967 Act, applies right from the stage of registration of FIR for
the offences under Chapters IV and VI of the 1967 Act until the
conclusion of the trial thereof. To wit, soon after the arrest of
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the accused on the basis of the FIR registered against him, but
before filing of the charge-sheet by the investigating agency;
after filing of the first charge-sheet and before the filing of
the supplementary or final charge-sheet consequent to further
investigation under Section 173(8) CrPC, until framing of the
charges or after framing of the charges by the Court and
recording of evidence of key witnesses, etc. However, once
charges are framed, it would be safe to assume that a very strong
suspicion was founded upon the materials before the Court,
which prompted the Court to form a presumptive opinion as to
the existence of the factual ingredients constituting the offence
alleged against the accused, to justify the framing of charge. In
that situation, the accused may have to undertake an arduous task
to satisfy the Court that despite the framing of charge, the
materials presented along with the charge-sheet (report under
Section 173 CrPC), do not make out reasonable grounds for
believing that the accusation against him is prima facie true.
Similar opinion is required to be formed by the Court whilst
considering the prayer for bail, made after filing of the first
report made under Section 173 of the Code, as in the present
case.
27. For that, the totality of the material gathered by the
investigating agency and presented along with the report and
including the case diary, is required to be reckoned and not
by analysing individual pieces of evidence or circumstance.
In any case, the question of discarding the document at this
stage, on the ground of being inadmissible in evidence, is not
permissible. For, the issue of admissibility of the
document/evidence would be a matter for trial. The Court
must look at the contents of the document and take such
document into account as it is."
26. In its recent decision, in the case of Vernon v State of
Maharashtra & Anr. reported as 2023 SCC OnLine 885, the Hon‟ble
Supreme Court has observed as follows:
"37. In the case of Zahoor Ahmad Shah Watali (supra), it has
been held that the expression "prima facie true" would mean that
the materials/evidence collated by the investigating agency in
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reference to the accusation against the accused concerned in the
chargesheet must prevail, unless overcome or disproved by other
evidence, and on the face of it, materials must show complicity
of such accused in the commission of the stated offences. What
this ratio contemplates is that on the face of it, the accusation
against the accused ought to prevail. In our opinion, however,
it would not satisfy the prima facie "test" unless there is at
least surface-analysis of probative value of the evidence, at
the stage of examining the question of granting bail and the
quality or probative value satisfies the Court of its worth. In
the case of the appellants, 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. Thus, we are unable to
accept NIA's contention that the appellants have committed the
offence relating to support given to a terrorist organisation."
27. On a conspectus of the principles culled out from the judgments
of the Hon‟ble Supreme Court of India extracted hereinabove and on a
conjoint and harmonious interpretation of the provisions of the UAPA
Act, we are axiomatically of the considered view that the relevant
indicators relating to the extent of judicial examination required under
Section 43-D(5) of the UAPA Act can be briefly encapsulated as
follows:-
Limited Examination: At the stage of bail under the UAPA
Act, it is well-established that an extensive or detailed
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examination of evidence is not necessary. The court should
refrain from conducting an elaborate dissection of the evidence.
Broad Probabilities: The role of a Court is to record findings
based on broad probabilities regarding the involvement of the
accused in the alleged offence. Meaning thereby that the court
should assess whether there are reasonable grounds to believe
that the accusations against the accused are prima facie true.
Admissibility of Documents: Documents forming part of the
evidence should not be discarded during the bail proceedings,
on the grounds of admissibility. Admissibility is a matter of
trial, and the court should consider such documents, as they are.
Holistic Analysis: The credibility of various statements of
witnesses should not be viewed in isolation during bail
proceedings. The Court must consider the materials adduced as
a whole and accordingly take them into account.
Surface Analysis: A surface analysis of the probative value of
the evidence must however be undertaken while examining the
question of granting bail. The court ought not to delve into an
in-depth examination of evidence but rather assess whether
there are reasonable grounds to believe that the accusations
against the accused are prima facie true.
28. In addition to the legal tenets expressed in the case of Watali
(supra) the supplemental surface analysis of the probative value of the
evidence, has been clearly emphasized by the Hon‟ble Supreme Court
in the case Vernon (supra). Consequeently, the pivotal query that now
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confronts us pertains to whether there exist rational grounds for
entertaining the prima facie veracity of the allegations levelled against
the Appellant. This necessitates an evaluation of the corpus of the
evidence adduced by the prosecution in the charge sheet.
29. The evidence collected by the prosecution against the appellant;
in relation to the larger conspiracy; within the charge sheet dated
08.04.2022, is extracted herein below for the sake of completeness:-
30. Further, the evidence gathered by the investigating agency in
connection with the subject larger conspiracy, encompassing
manifestations in both the physical domain and the virtual realm, it
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was delineated as follows:
"17.7. Investigation has revealed a well organised propaganda
machinery operating in furtherance of the criminal
conspiracy to portray terrorists activities undertaken in
Kashmir and other parts of India as an outcome „of home
grown resentment and insurgency. The first step, as described
earlier, was to float new outfits with secular/indigenous names
with an aim of deniability at international level and the
second was to attract new cadres into the fold of these terror
element of any terrorist enterprise, cyberspace was flooded
with outfits. Since propaganda is a key radicalising material
instigating impressionable youth with concoted and distorted
narratives through a plethora of online instruments such as
websites, blogs, Social Media channels/accounts, close groups
over encrypted platforms etc. This was done a dual purpose
of attaracting new foot soldiers and OGWs as well as striking
terror in minds of people by claiming terrorists attacks,
eologising slain terrorists, issuing threats and hitlists etc.
Investigation has revealed interlinkages of all such online
instruments and their convergance to Pakistan based
handlers/operatives of proscribed terrorist organisations.
Detailed technical analysis report of expert has revealed that
same entities have been associated with different cyber
accounts propagating terror activites for pseudo/frontal
terrorist outfits such as "The Resistant Front‟, „Kashmir
Tigers‟, „United Liberation Front of J&k‟, „Al Aqsa Media
J&K‟ etc.
*** *** ***
17.12. Traditionally newly recruited terrorists usually ex-
filtrate to Pakistan for getting training in handling of
weapons and explosives in terrorist camps „ani control and
thereafter infiltrate back into in territory under Paki India
for carrying out terrorist acts. These terrorists usually infiltrate
back into India along with large consignment of sophisticated
arms and ammunitions and they usually remain underground
and operate from various hideouts. During investigation of
the instant case, it has been found that the proscribed
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terrorist organizations operating in J&K are using new
modus operandi, whereby radicalised individuals are
identified and scouted through cyberspace and thereby the
handlers/ commanders of proscribed terrorist organizations
based in Pakistan initiate them into the terrorist fold through
secure messaging Apps. Thereafter, the newly inducted
terrorists are further radicalised through dissemination of
propaganda materials and provided online training in
handling of weapons and explosives. Investigation revealed
that the newly radicalized recruits are usually from various
walks of life such as students, shopkeepers, journalists, etc.
who could use their cover to remain rooted in society and
clandestinely carry out the instructions of the Pakistan based
handlers/ commanders. Such individuals are hybrid terrorists
who appear to be common citizens going about his/her daily
chores but in reality are ready to fulfil any instruction of
their commanders including but not limited to posting
propaganda graffiti on walls, snatching weapons of security
forces, shooting innocent civilians/ security forces with small
weapons, etc. The biggest advantage of such hybrid terrorists
is that after committing such dastardly acts, they can easily
blend into society without raising any suspicion. Investigation
revealed that creation of such hybrid terrorists is the
preferred modus operandi of Pak-based handlers/
commanders of various proscribed terrorist organizations.
17.13. Investigation has further established that the arrested
accused persons A-4, A-9, A-11, A-12, A-13, A-14, A-15, A-18
A-20, A-21, A-25, A-26 and A- 27 were identified through
these online propaganda groups and were acting as hybrid
cadres of the frontal organizations floated under the
conspiracy hatched by A-1, A-2 and other top commanders
of proscribed terrorist organizations...
*** *** ***
17.18. Investigation has brought on record that A-2 on directions
of A-1, directly conspired with arrested accused persons A-3, A-
5, A-6, A-8, A-17, A-20, A-22, A-23 and A-24 to assist active
cadres associated with proscribed terrorist organizations and
their newly formed frontal organizations, whereas the other
arrested accused persons A-4, A-9, A-10, A-11, A-12, A-13, A-
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14, A-15, A-16, A-18, A-20, A-21, A-25, A-26 and A-27, acting
as hybrid cadres or lone wolf operators, got associated with
online propaganda groups floated by various Pakistan based
handlers of proscribed terrorist organizations on directions
of A-1, A-2 and other commanders of the „United Jihad
Council‟, Due care was taken by A-1 and A-2 to ensure that
all the other terrorists in this conspiracy did not know much
about each other so that even if one of these was arrested,
security agencies could not identify and locate other
conspirators involved in the larger conspiracy.
*** *** ***
17.45. During the course of investigation, it has been revealed
that in furtherance of criminal conspiracy to wage a war against
the Government of India, the accused A-2 on directions of A-1
and other top commanders of proscribed terrorist organizations
floated a number of online propaganda groups under the names
of frontal organizations such as Resistance Front, Kashmir Fight,
People Against Fascist Forces (PAFF), ULF J&K, Maviya Al
Hizbi, Al-Hizbi etc. as already discussed in para 17.6 above.
Investigation has further established that the arrested accused
persons A-4, A-9, A-11, A-12, A-13, A-14, A-15, A-18 A-20, A-
21, A-25, A-26 and A-27, were associated with the above said
online groups and were acting as hybrid cadres on behalf of
proscribed terrorist organizations in order to motivate,
radicalize and recruit local youths into terror ranks, to carry
out small scale targeted attacks and for furtherance of
activities of proscribed terrorist organizations.
*** *** ***
17.76. Investigation has revealed A-16, A-25 and A-26 were also
the part of many social media groups which were being used
in the name of frontal organization for the proscribed
terrorist outfits under the directions of Bashir Ahmed Peer
@ Imtiyaz Alam (A-1) and Imtiyaz Kundoo @ Fayaz Sopore
(A-2) for assisting active cadres of procribed terror outfits to
execute targeted attacks in the valley.
*** *** ***
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17.85 In furtherance of the conspiracy hatched on the directions
of the accused A-1, A-2 and other commanders of proscribed
terrorist organization, the accused Suhail Anmed Thoker (A-
25) got associated with a number of online propaganda
groups floated by handlers of proscribed terrorist
organization, and started working as a hybrid cadre and
over ground worker for the active terrorists associated with
proscribed terrorist organization.
17.86 Investigation further revealed that A-25 was working as
cadre for Rouf Dar resident of Hadigam, an active cadre of
Hizb-ul Mujahideen and started arranging logistics for him
and other cadres of the proscribed terror outfit.
Investigation has clearly established that he was actively
involved in harbouring the cadres of banned terrorist outfits
in his house as well as with the help of his associates in the
fields of his known persons.
*** *** ***
17.96. CDR Interconnectivity amongst accused persons A-1
to A-27/ suspects established association based on the
evidence emerged:
During the course of investigation it has been established that
most of the times accused persons were associated through
various medium i.e VOIP medium and calls but they all are
connected through various phone numbers. The retrived chats/
VOIP calls/ GSM calls/lawful intercepted calls clearly
indicates about their associations. All the accused persons
„were using secure communication methods to avoid
detection.
17.97. The evidence emerged during investigation in the form
statements, CDR data, Chats retrieved through seized mobile
phones shows that all the accused persons are associated with
each other and entered into conspiracy both physically as well as
in cyber space in order to undertake targeted attacks in the
valley for furtherance of operation of proscribed terrorist
outifts operating under the names of various frontal
organizations like TRF, ULF J&K, Kashmir Fight, Kashmir
janbaaz Force (KJF) etc.
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31. In the abovementioned Charge Sheet, the investigating agency,
has scrutinized and succinctly outlined the role of the appellant,
specifically within paragraph 17.121, which is reproduced
hereinbelow for the sake of convenience: -
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17.121. Role and activities of / offences established against
Suhail Ahmed Thokar (A-25)
Accused Suhail Ahmed Thokar (A-25) knowingly entered
into a conspiracy hatched by terrorist commander based
across the border as well as active terrorist commanders in the
valley along with other co- accused persons to commit
multiple terrorist attacks in the valley. The accused Suhail
Ahmed Thokar (A-25) was actively working for the ideology
of terrorist organisation/ terror gangs as per the directions of
the commanders of the various terrorist outfits and
attempts/advocates/ the ideology of newly formed terror
gangs and also involved in providing shelter to the active cadres.
Therefore, as per the averments made hereinabove/ in the
pre-paragraphs, it is established that the accused Suhail
Ahmed Thokar (A-25) criminally conspired with co-accused
persons and others and in pursuance of the said conspiracy.
Suhail Ahmed Thokar (A-25) indulged himself in the
criminal conspiracy hatched by the terrorist organisations to
create unrest and strike terror in the Kashmir valley and in
others parts of the country.
32. Furthermore as per the material in the charge sheet as
articulated during the course of the arguments, the attention of this
Court is invited to several pieces of evidence procured during the
course of investigation that suggest the appellant‟s significant
involvement in the larger conspiracy and activities related to militancy
and terrorism, which require to be carefully considered to determine
whether there are reasonable grounds to substantiate a prima facie
case against the appellant. The same are extracted herein below:-
Seizure of Mobile Phones and SIM Card: At the time of the
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appellant‟s arrest on 20.10.2021, two mobile phones,
specifically the Redmi Note 9 Pro/Intel with distinct IMEI
numbers (IMEI 1: 865715048075094, IMEI 2:
865715048075102), connected to the JIO network mobile
number +919682652007, and an „Itel‟ mobile phone with
IMEIs: 353091114521802 and 353091114521810, along with a
BSNL 3G SIM card bearing number 8991627058113882149,
were seized from the appellant‟s possession.
Digital Data Analysis: An analysis report of the digital data
obtained from the seized mobile phones (IMEI numbers ending
with 5094 and 5102) conducted by Cert-In revealed the
presence of images related to deceased militants and terrorist
organizations. The appellant has acknowledged sharing these
images with individuals with the intent of radicalization within
the Kashmir Valley. Relevant extract of the forensic data
retrieved from the seized digital devices from the possession of
the appellant is reproduced herein below:-
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Disclosure Statement: The appellant in his disclosure
statement recorded on 26.10.2021, affirmed that he had a
prior school association with the militant Rouf Dar. He also
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disclosed that he had assisted militants Rouf Dar and Walid
in arranging accommodation in his hometown and guided
them to Fayaz Ganie‟s residence, where they stayed for two
days. Relevant extract from the disclosure statement of the
appellant is reproduced herein below:-
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Witness Testimonies: Uzair Ahmad Ganie (PW-271) spoke
about the appellant‟s affiliation with multiple insurgents and
asserted that the deceased militant Rouf Dar had an
acquaintance with the appellant. Relevant portion from the
statement of Uzair Ahmad Ganie (PW-271), is reproduced
herein below:-
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Additionally, Fayaz Ahmad Ganie (PW 272) also confirmed
the appellant‟s association with insurgents and his role in
harboring two militants at his residence. Relevant portion
from the statement of Fayaz Ahmad Ganie (PW 272), is
reproduced herein below:-
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33. During the course of arguments, learned counsel appearing on
behalf of the Appellant has placed strong reliance on the judgment of
the Hon‟ble Supreme Court of India in the case of Thwaha Fasal v
Union of India reported as 2021 SCC OnLine 1000, to contend that
mere association or support of a terrorist organization is not sufficient
to attract the offence under Sections 38 and 39 of the UAPA Act. It
was further contended that in order to establish the offences under
Sections 38 and 39 of the UAPA Act, the association or support must
be with the specific intent and this intent can only be inferred from the
overt acts or active participation in the activities of the terrorist
organization, as demonstrated from the materials presented in the
charge sheet. In essence, the argument put forth by learned counsel
appearing on behalf of the appellant suggests that a mere passive
association or sympathetic support, without evidence of active
involvement or intent to promote the organization‟s activities, may not
be enough to establish guilt under Sections 38 and 39 of the UAPA
Act. This interpretation underscores the importance of establishing a
direct link between an individual‟s actions and the promotion or
furtherance of terrorist activities.
34. At this stage, it is crucial to reiterate that the UAPA Act
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requires and warrants active measures against organizations that pose
a threat to national security. The UAPA Act outlines specific
procedures for imposing sanctions on such organizations and once an
organization is designated as unlawful under the UAPA Act, any
individual affiliated with it can be prosecuted for the offences
specified within the Act, in addition to any other relevant penal
statutes. The relevant sections of the UAPA Act, along with the list of
banned terrorist organizations specified in the First Schedule thereof,
are crucial for understanding the legal context in light of the factual
matrix of the instant case. The relevant sections of the UAPA Act are
extracted herein below for the sake of facility:-
"Section 2. Definitions.--(1) In this Act, unless the context
otherwise requires,--
m) "terrorist organisation" means an organisation listed in
the schedule or an organisation operating under the same
name as an organisation so listed;
Section 35. Amendment of Schedule, etc.--
(1) The Central Government may, by [notification], in
the Official Gazette,--
(a) add an organisation to the [First Schedule];
(b) add also an organisation to the [First Schedule],
which is identified as a terrorist organisation in a
resolution adopted by the Security Council under
Chapter VII of the Charter of the United Nations, to
combat international terrorism;
(c) remove an organisation from the 3 [First
Schedule];
(d) amend the [First Schedule] in some other way.
(2) The Central Government shall exercise its power
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under clause (a) of sub-section (1) in respect of an
organisation only if it believes that it is involved in
terrorism.
(3) For the purposes of sub-section (2), an organisation
shall be deemed to be involved in terrorism if it--
(a) commits or participates in acts of terrorism, or
(b) prepares for terrorism, or
(c) promotes or encourages terrorism, or
(d) is otherwise involved in terrorism.
(4) The Central Government may, by notification in the
Official Gazette, add to or remove or amend the Second
Schedule or Third Schedule and thereupon the Second
Schedule or the Third Schedule, as the case may be,
shall be deemed to have been amended accordingly.
(5) Every notification issued under sub-section (1) or
sub-section (4) shall, as soon as may be after it is issued,
be laid before Parliament.]"
35. Section 2(m) of the UAPA Act defines a "terrorist organization"
as an organization listed in the First Schedule or an organization
operating under the same name as an organization listed in the First
Schedule. This definition is fundamental in identifying and
categorizing organizations engaged in terrorism. Section 35 provides
the legal framework for the Central Government to make amendments
to the schedules of banned organizations under the UAPA Act,
particularly the First Schedule, taking into account the organizations
involved in terrorism and various international resolutions. This
section ensures that the government can respond to evolving threats
and international developments related to terrorism.
36. The First Schedule of the UAPA Act provides a comprehensive
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list of terrorist organizations, as defined by the Act. These
organizations are considered threats to national security and are
subject to legal measures outlined in the UAPA Act. Here is the list of
terrorist organizations included in the First Schedule:
1. Babbar Khalsa International.
2. Khalistan Commando Force.
3. Khalistan Zindabad Force.
4. International Sikh Youth Federation.
5. Lashkar-E-Taiba/Pasban-E-Ahle Hadis.
6. Jaish-E-Mohammed/Tahrik-E-Furqan.
7. Harkat-Ul-Mujahideen/Harkat-Ul-Ansar/Harkat-Ul-Jehad-E-
Islami.
8. Hizb-Ul-Mujahideen/Hizb-Ul-Mujahideen Pir Panjal Regiment.
9. Al-Umar-Mujahideen.
10.Jammu And Kashmir Islamic Front.
11.United Liberation Front Of Assam (ULFA).
12.National Democratic Front Of Bodoland (NDFB).
13.People‟s Liberation Army (PLA).
14.United National Liberation Front (UNLF).
15.People‟s Revolutionary Party Of Kangleipak (PREPAK).
16.Kangleipak Communist Party (KCP).
17.Kanglei Yaol Kanba Lup (KYKL).
18.Manipur People‟s Liberation Front (MPLF).
19.All Tripura Tiger Force.
20.National Liberation Front Of Tripura.
21.Liberation Tigers Of Tamil Eelam (LTTE).
22.Students Islamic Movement Of India.
23.Deendar Anjuman.
24.Communist Party Of India (Marxist-Leninist) People‟s War, All
Its Formations And Front Organisations.
25.Maoist Communist Centre (MCC), All Its Formations And
Front Organisations.
26.Al Badr.
27.Jamiat-Ul-Mujahidden.
28.Al-Qaida.
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29.Dukhtaran-E-Millat (DEM).
30.Tamil Nadu Liberation Army (TNLA).
31.Tamil National Retrieval Troops (TNRT).
32.Akhil Bharat Nepali Ekta Samaj (ABNES).
37. The abovementioned organizations are considered to be
involved in terrorism activities that threaten the sovereignty and
integrity of India and these organizations and the individuals
associated with them are liable to be prosecuted under the UAPA Act.
As per the case of the prosecution, it has come on record in the
chargesheet that the appellant attempted to arrange shelter for two
militants associated with Jaish-e-Mohammed (JeM), a banned terrorist
organization listed in the First Schedule of the UAPA Act.
38. At this juncture, it is also relevant to consider the recent
decision of the Full Bench of the Hon‟ble Apex Court in the case of
Arup Bhuyan versus State of Assam and Anr. reported as 2023 SCC
OnLine SC 338 (decided on 24-03-2023); where it has upheld the
Constitutional validity of Section 10(a)(i) of the UAPA Act and
further opined that mere membership of a banned organization
constitutes an offence under the UAPA Act. The relevant portion of
the judgment is extracted herein below for the sake of facility :
"8. While appreciating the submissions on behalf of the
respective parties on the aforesaid issues, the relevant provisions
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of the UAPA, 1967 are required to be referred to which are as
under:
"Section 2 - Definitions:
(1) In this Act, unless the context otherwise requires--,
(a) association means any combination or body of
individuals;
(k) terrorist act has the meaning assigned to it in section
15, and the expressions terrorism and terrorist shall be
construed accordingly;
(l) terrorist gang means any association, other than
terrorist organisation, whether systematic or
otherwise, which is concerned with, or involved in,
terrorist act;
(m) terrorist organisation means an organisation listed
in the [First Schedule] or an organisation
operating under the same name as an organisation
so listed;
(o) unlawful activity, in relation to an individual or
association, means any action taken by such
individual or association (whether by committing an
act or by words, either spoken or written, or by signs
or by visible representation or otherwise)--,..........
*** *** ***
18. Now so far as reading down Section 3(5) of Terrorist and
Disruptive Activities (Prevention) Act, 1987, which is pari
materia to Section 10(a)(i) of UAPA Act, 1967 and reading
down the said provision to the extent by observing that mere
membership of a banned organization will not make a person
guilty unless he resorts to violence or incites people to
violence or creates public disorder by violence or incitement
to violence and that mere membership of a banned
organization will not incriminate a person is concerned, it is
vehemently submitted by Shri Tushar Mehta, learned Solicitor
General that as such in absence of challenge to the relevant
provisions, more particularly Section 10(a)(i) of the UAPA,
1967, such a reading down was not permissible. It is submitted
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that as such in the case of Raneef (supra), which has been
subsequently followed in the cases of Arup Bhuyan (supra)
and Indra Das v. State of Assam, (2011) 3 SCC 380, this Court
was considering the bail application and the constitutional
validity of Section 10(a)(i) of the UAPA Act was not under
challenge.
*** *** ***
25. Making above submissions and relying upon the above
decisions, Shri Tushar Mehta, learned Solicitor General and
Shri Vinay Navare, learned Senior Counsel appearing on
behalf of the State of Assam have prayed to hold that the
observations/decisions of this Court in the cases
of Raneef (supra), Arup Bhuyan (supra) and Indra Das (supra)
taking the view that mere membership of a banned
organization will not incriminate a person unless he resorts
to violence or incites people to violence or does an act
intending to create disorder or disturbance of public peace
by resort to violence is not a good law, in view of the specific
provision under Section 10(a)(i) of the UAPA Act, 1967, the
constitutionality of which is not under challenge and even
otherwise on merits also looking to the object and purpose of
enacting the UAPA Act, 1967.
*** *** ***
52. Now so far as the reliance placed upon the decision
of Thawaha Fasal v. Union of India, 2021 SCC OnLine SC
1000 by Shri Parikh, learned Senior Counsel, it is vehemently
submitted by Shri Mehta, learned Solicitor General that the
said decision shall not be applicable while considering the
offence under Section 10(a)(i) of UAPA, 1967. It is submitted
that in the said judgment this Court was dealing with the
offence under Section 38 of UAPA, 1967 and was not dealing
with the provisions concerning membership. Sections 38 and
39 of the UAPA, 1967 are worded completely differently as
compared to the provisions concerning criminalization of
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membership of a banned organization. It is submitted that
therefore any observations made while considering the
different provision/offence may not be stricto
sensu applicable while considering Section 10(a)(i) of the
UAPA, 1967.
*** *** ***
55. At the outset, it is required to be noted that pursuant to
the order passed by this Court reported in the case of Arup
Bhuyan v. State of Assam, (2015) 12 SCC 702, the present
reference is before the larger Bench. The present reference to
the larger Bench is made on the request made on behalf of
the Union of India and the State of Assam doubting the
correctness of the decisions of this Court in the case
of Raneef (supra) and Arup Bhuyan (supra) taking the view
on reading down Section 10(a)(i) that mere membership of a
banned organization will not make a person a criminal/guilty
unless he resorts to violence or incites people to violence or
creates public disorder by violence or incitement to violence.
*** *** ***
82. Now the next question which is posed for consideration
before this Court is whether Section 10(a)(i) is required to be
read down so as to save the said provision from being
declared unconstitutional and is required to be read down as
had been done in the case of Arup Bhuyan (supra)
and Raneef (supra) that mere membership of a banned
organization will not incriminate a person unless he resorts to
violence or incites people to violence and does an act
intended to create disorder or disturbance of public peace by
resort to violence meaning thereby over and above the
membership of a banned organization there must be a mens
rea required to be established and proved and/or there must
be a further overt act? While deciding this issue elaborate
submissions have been made by Shri Tushar Mehta, learned
Solicitor General, Shri Vinay Navare, learned Senior
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Counsel appearing for the State of Assam and Shri Sanjay
Parikh, learned Senior Counsel appearing on behalf of the
appellant/intervener.
*** *** ***
87. The UAPA, 1967 has been enacted in exercise of powers
conferred under Article 19(2) & (4) of the Constitution of India.
At this stage, it is required to be noted that exceptions to the
freedom to form associations under Article 19(1) was
inserted in the form of sovereignty and integrity of India
under Article 19(4), after the National Integration Council
(NIC) appointed a Committee on National Integration and
Regionalisation. The said Committee was to look into the
aspect of putting reasonable restrictions in the interests of
the sovereignty and integrity of India. Pursuant to the
acceptance of the recommendations of the said Committee,
the Constitution (Sixteenth Amendment) Act, 1963 came to
be enacted to impose by law, reasonable restrictions in the
interests of sovereignty and integrity of India. In order to
implement the provisions of 1963 Act, the Unlawful Activities
(Prevention) Bill was introduced in the Parliament. The main
objective of the UAPA is to make powers available for
dealing with activities directed against the integrity and
sovereignty of India. It is also required to be noted that
pursuant to the recommendation of the Committee on
National Integration and Regionalisation appointed by the
National Integration Council Act on whose recommendation
the Constitution (Sixteenth Amendment) Act, 1963 was
enacted, UAPA has been enacted. It appears that National
Integration Council appointed a Committee on National
Integration and Regionalisation to look into, inter alia, the
aspect of putting reasonable restrictions in the interests of
sovereignty and integrity of India and thereafter the UAPA
has been enacted. Therefore, the UAPA has been enacted to
make powers available for dealing with the activities directed
against integrity and sovereignty of India.
88. Now let us consider the Preamble of the UAPA, 1967. As per
Preamble, UAPA has been enacted to provide for the more
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effective prevention of certain unlawful activities of individuals
and associations and dealing with terrorist activities and for
matters connected therewith. Therefore the aim and object of
enactment of UAPA is also to provide for more effective
prevention of certain unlawful activities. That is why and to
achieve the said object and purpose of effective prevention of
certain unlawful activities the Parliament in its wisdom has
provided that where an association is declared unlawful by a
notification issued under Section 3, a person, who is and
continues to be a member of such association shall be punishable
with imprisonment for a term which may extend to 2 years, and
shall also be liable to fine. Therefore, the Parliament in its
wisdom had thought it fit that once an association is declared
unlawful after following due procedure as required under Section
3 and subject to the approval by the Tribunal still a person
continues to be a member of such association is liable to be
punished/penalized.
*** *** ***
98. In view of the above and for the reasons stated above we
hold that the view taken by this Court in the cases of State of
Kerala v. Raneef, (2011) 1 SCC 784; Arup Bhuyan v. Union of
India, (2011) 3 SCC 377 and Sri Indra Das v. State of
Assam, (2011) 3 SCC 380 taking the view that under Section
3(5) of Terrorists and Disruptive Activities (Prevention) Act,
1987 and Section 10(a)(i) of the Unlawful Activities
(Prevention) Act, 1967 mere membership of a banned
organization will not incriminate a person unless he resorts
to violence or incites people to violence and does an act
intended to create disorder or disturbance of public peace by
resort to violence and reading down the said provisions to
mean that over and above the membership of a banned
organization there must be an overt act and/or further
criminal activities and adding the element of mens rea are
held to be not a good law. It is observed and held that when an
association is declared unlawful by notification issued under
Section 3 which has become effective of sub-section 3 of that
Section, a person who is and continues to be a member of such
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association is liable to be punished with imprisonment for a
term which may extend to two years, and shall also be liable
to fine under Section 10(a)(i) of the UAPA, 1967.
99. Any other decisions of the High Court taking a contrary view
are held to be not a good law and are specifically overruled by
this Judgment.
100. Reference is answered accordingly. Consequently, the
Review applications filed by the Union of India and the State of
Assam are hereby allowed.
101. Now the main appeals/SLPs be placed before the concerned
Bench for taking of such matters after obtaining the appropriate
order from Hon'ble the Chief Justice."
(Emphasis Supplied)
39. Furthermore, it will also be beneficial at this stage to
recapitulate the principles that the Court must bear in mind while
deciding an application for grant of bail. The Hon‟ble Apex Court has,
in a catena of judgments, outlined the considerations on the basis of
which discretion under Section 439 Cr.P.C. has to be exercised while
granting bail. The Hon‟ble Apex Court in the case of Prasanta Kumar
Sarkar v. Ashis Chatterjee & Anr. reported as (2010) 14 SCC 496,
after taking into account several precedents, elucidated the following:
"9...However, it is equally incumbent upon the High Court to
exercise its discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in a plethora of
decisions of this Court on the point. It is well settled that,
among other circumstances, the factors to be borne in mind
while considering an application for bail are:
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(i) whether there is any prima facie or reasonable
ground to believe that the accused had
committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing, if
released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail."
40. These principles underscore that courts must strike a balance
while dealing with the bail applications. The decision rendered by the
Hon‟ble Apex Court in Prasanta Kumar Sarkar (Supra) provides a
pivotal reference point in the jurisprudence of bail, ensuring that the
principles of natural justice and liberty of an individual is protected
while safeguarding the interests of society.
41. Resultantly, after due consideration of the provisions of the
UAPA Act, along with an assessment of the material appended in the
subject charge-sheet; the collective evidence; as well as surface
analysis of its probative value, in our considered view prima facie
there exist reasonable grounds to believe that the accusations against
the appellant are true. Consequently, the conditions in Section 43
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D(5) of the UAPA Act stand satisfied.
42. The present appeal is accordingly dismissed.
43. Before we part with the judgment, it is incumbent upon us to
point out that we have not expressed any opinion on the merits of the
present case.
44. A copy of this judgment be provided to the learned counsel
appearing on behalf of the parties electronically and be also uploaded
on the website of this Court forthwith.
SIDDHARTH MRIDUL
(JUDGE)
ANISH DAYAL
(JUDGE)
SEPTEMBER 22, 2023
dn/DA*
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