TaxTMI 
TaxTMI 
2023 (9) TMI 1773
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....after 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 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 Pa....
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....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 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....
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....cate 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 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 affil....
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....) 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; xi. Asif Igbal 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 i....
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....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 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 c....
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....ainst 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 y State of Maharashtra & Anr. reported as 2023 SCC 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....
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....rt 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 in the First Information Report (FIR). The Court emphasized that, at the preliminary stage of bail, the ma....
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....d 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 Indi....
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.... and VI of the 1967 Act until the conclusion of the trial thereof. To wit, soon after the arrest of 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 ....
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....hat 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 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 s....
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....ionable 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 activities 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 ter....
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....cribed 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-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....
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....cure 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. 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: - 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 Tho....
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....ment recorded on 26.10.2021, affirmed that he had a prior school association with the militant Rouf Dar. He also 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 :- ● 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 :- ● 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 :- 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 y Union o....
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....orist 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 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 Parlia....
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....s. 26. Al Badr. 27. Jamiat-Ul-Mujahidden. 28. Al-Qaida. 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....
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.... 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....
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....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 Counci....
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....id 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 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 p....
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....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. ============= Document 1 Name A-25 Suhail Ahmad Thokar b. Father's Name Abdul Rashid Thokar c. Age 20 years d. Sex Male e. Nationality Indian f. Religion Islam g. Occupation He was a member of proscribed terrorist organisations h. Address (present) Village Hadigam, District Kulgam, J&K UT i. Address (permanent) Village Hadigam, District Kulgam, J&K UT j. Whether Arrested/On Bail/Absconding Arrested on 20.10.2021 and presently in Judicial Custody Document 2 RC-29/2021/NIA/DLI(J&K Terrorism Conspiracy Case) Association of accused persons based on the evidence collected so far during the course of investigation in the form of oral, documentary & forensic 1 - Ad W+ . Document 3 EXPLANATION MEMORANDUM RASHID TARRESTED ACCUSED SUHAIL AHMAD THOREY CESTRON THE THOKARRESIDENCE OF HADIGAM, KULGAM, UT OF J&K. . Reference Case No. RC-29/2021/NIA/DLI dated 10....
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.... /NIA In presence : 2012 Sh. Kulwant Lal Khatri, Executive Magistrate Insp/NIA xecutive Magistrate / Tehsildar there are Manda audios. Azhar Propõe loaded from That i had downbonsoirom social media platform Had saved these C views y SILSILA E BAVAN Afşar Khan n presence Sh Kutwant Lal Khatri, Executive Magistrate 12. 124904928 cache_em 1 pg these photo slain showing. He was kiled an militant w super with security forces in the Veer 2021 / used to share these impres to various 69328768 png radicalisation. 11283932 pg n this photo siain mutant with other militant. He we are was killed on encounter these images to Marie Accused Suhail Ahmad Thoker Monish Kumar, Insp/NIA 2. Date and Time Accused nail uhail Ahmad Thoker Manish Kumar, Insp/NIA Location Content Observations 21fb64b6dcbbc85 ae1c4667b7ele3 I was the active member of social media platforms ous sed groups many post related to Kashmir ation and other used to share all these 2. 1684070734.cach humb.jpg 193508916 M In this photo slain militant cousin brother Aizaz Shopian, Ho fors, varmt. these images to 199151912 cache e 1_thumb.i In this photo slain milita....
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....z Ganie was a contractor and was doing business of Apple. Then i took them to the home of Fayaz Ganie where they stayed for 2 days Thereafter, Rouf Dar asked me on whatsapp to take them to the house of another co-villager namely Mohammad Abdullah (45 years). After 2 days they again 5 Chail Ajak D-96/2 asked me to shift them to the house of another co-villager Janhangir Mir (35 years) s/o Abdul Rahman Mir. They kept on staying in the above said houses time to time. Both the said terrorists had also visited other villages Bumbrath, Okai, Kachawallam, Arerrh for hiding themselves to escape from Kulgam Police. In the month of October 2020 JeM terrorists Rouf Dar and Walid (Pak militant) were killed in an encounter in Kulgam. In the month of July 2021, Uzair a JeM terrorist, native of village Mirhama, Kulgam called me on my above mentioned whatsapp number from Pakistani unknown mobile number and asked me to arrange for his safe stay in my village, But they didn't come. My mobile number was shared with Uzair by Rouf Dar before his killing. One Pakistani militant namely Mohammad @ Ahmad) of JeM is also roaming in jungles around the area of Kulgam, with Uzair. I came....