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Synopsis

The Delhi High Court on Wednesday declined to grant bail to a Kashmiri individual who was charged under the Unlawful Activities (Prevention) Act (UAPA). The court held that the evidence prima facie indicated that the individual was in communication with ISIS militants and cadres, indicating his culpability.

The bench of Justice Suresh Kumar Kait and Justice Manoj Jain held, “The appellant was in touch with cadres of ISIS which is sufficient to give insight of his culpable mind”. 

The Special Cell detained two individuals subsequent to receiving information regarding their radicalization and association with the proscribed terrorist group ISIS, originating from Jammu & Kashmir. It was reported that the group had acquired weapons from Uttar Pradesh to aid in a planned terrorist activity. Intelligence suggested their rendezvous at Netaji Subhash Park near Lal Quila (Red Fort), Delhi, on September 7, 2018, with intentions to travel to Kashmir.

Consequently, both suspects were apprehended while heading towards Lal Qila. Upon inspection, one of them was found in possession of a loaded pistol containing five live cartridges. Both confessed to procuring the seized weapons from four individuals in Uttar Pradesh in exchange for money. Further investigation revealed the suspects' status as juveniles in conflict with the law, leading to a separate report filed before the relevant Juvenile Justice Board.

The accused admitted to propagating ISIS ideology in India and maintaining contact with another ISIS militant. The investigation also uncovered their involvement in procuring weapons for the banned terrorist organization and sharing military movement information with other terrorists in Kashmir. Accordingly, both were charged under Section 25 of the Arms Act and Sections 18 & 20 of the Unlawful Activities (Prevention) Act (UAPA). The appellant's bail application before the trial court was denied.

Advocate Nizam Pasha, representing the appellant, argued that there was insufficient evidence to prove the appellant's involvement in any unlawful or terrorist activities, let alone any overt actions on his part. He further contended that although the charges have been confirmed by the trial court and not challenged thus far, the appellant was still entitled to seek bail and demonstrate that the bar provided under Section 43D(5) of the UAPA does not apply.

Additional Public Prosecutor Manjeet Arya, representing the State, asserted that there were clear and specific allegations against the appellant, and when these allegations were considered together, they unmistakably indicated his involvement in offences under Sections 18 & 20 of the UAPA.

The court elucidated the limitation on the grant of bail under the UAPA, emphasizing Sections 18 and 20 within Chapter IV, pertaining to sanctions for terrorist activities. Section 15 delineated the definition of a ‘terrorist act’, Section 16 specified the consequences, and Section 17 addressed penalties for financing such endeavors. Section 18 dealt with penalties for conspiracy, entailing imprisonment and fines, whereas Section 20 covered repercussions for affiliating with terrorist factions. Moreover, Chapter VI concentrated on terrorist organizations, although the defendants in this instance were not indicted under this chapter.

The court held, “Though in adversarial system, there is presumption of innocence in favour of accused and, therefore, bail is generally a rule, UAPA contains modified application of certain provisions of Criminal Code of Procedure and thus commands that no person accused of an offence punishable under Chapter IV and/or Chapter VI shall, if in custody, be released on bail if there are reasonable grounds of believing that the accusation against such person is prima facie true”. 

Consequently, the bench emphasized the four key aspects that ought to be examined prior to bail. Firstly, the bench deliberated on whether, given that charges were formally filed and unchallenged by the appellant, bail could be entertained, and if the court could determine the absence of reasonable grounds for the accusation's prima facie truth. Secondly, it assessed the required level of scrutiny for such determination. Thirdly, it considered whether the appellant successfully demonstrated the absence of a prima facie case against them. Lastly, it explored the possibility of granting bail despite statutory restrictions, particularly when a prima facie case is established, to uphold the accused's fundamental rights.

The court elucidated that once charges are framed, a strong suspicion against the accused is presumed. Consequently, the burden on the accused becomes significantly weightier and more challenging, as it is unlikely that the same evidence leading to charge framing on a strong prima facie basis would support a contrary declaration that the accusation lacks prima facie validity.

The bench, after a detailed examination, noted the appellant’s communication with ISIS members indicating a culpable mindset. “Mere membership of banned organization is also sufficient to incriminate, without there being any overt act. Moreover, the factum of connection and association with any banned outfit has to be inferred from the attendant circumstances and the activities of the person concerned. There will never be a tangible piece of evidence or any kind of documentary proof in this regard, particularly once any such organization is banned”, the bench reiterated. 

The bench examined whether imprisoning the accused would violate their rights. It observed that in this instance, where the maximum possible punishment under Sections 18 and 20 of the UAPA is life imprisonment and there's no evidence of the prosecution violating the accused's fundamental rights under Part III of the Constitution, the delay in the trial doesn't automatically justify granting bail. The trial records didn't show any intentional efforts by the prosecution to hinder the trial process, so the prolonged detention of the accused alone doesn't qualify them for bail, court noted. 

Furthermore, it was noted that the trial court had already acknowledged the accused's fundamental rights and was expediting the proceedings accordingly, thus eliminating the need for further instructions.

Accordingly, court denied bail to the accused. 

Advocates for Appellant: Advocates Nizam Pasha, Ahmad Ibrahim, Ayesha Zaidi, Siddharth Kaushik and Awastika Das. 
Advocates for Respondent: Additional Public Prosecutor Manjeet Arya. 

Case Title: Jamsheed Zahoor Paul v State Of Nct Of Delhi