Delhi High Court Denies Bail To Man Booked Under UAPA In J&K Larger Conspiracy Case

The court observed that several pieces of evidence were procured during the course of investigation that suggested the accused’s significant involvement in the larger conspiracy and in activities related to militancy and terrorism. It further noted that as per the chargesheet filed by NIA, the accused had 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.

“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 D(5) of the UAPA Act stand satisfied,” the bench of Justices Siddharth Mridul and Anish Dayal said while upholding the trial court order.

It was the case of the prosecution that, upon the receipt of intelligence regarding the incubation of a larger conspiracy in the Kashmir valley, the NIA lodged an FIR under various provisions of the UAPA and the Indian Penal Code (IPC). The appellant-accused was consequently arrested on 20.10.2021 and the chargesheet was filed against him and co-accused persons under IPC and UAPA.

The chargesheet filed by the NIA 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. The chargesheet 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.

The State claimed that the 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, with the objective to recruit and train them for participating in acts of terrorism. It further alleged that the entire operation was orchestrated under the guidance and support of Pakistan’s Intelligence Agency, i.e., the “Inter-Services Intelligence” (ISI).

The chargesheet filed by NIA stated that the appellant played an active role in providing refuge to members of the terrorist organizations and their associates within his domicile, with the aid of his acquaintances.

The bail application filed by the appellant was dismissed by the Additional Sessions Judge, Special Judge (NIA), Patiala House Courts, after observing that the prosecution had been able to show that there was prima facie evidence to substantiate the case and accusations levelled against the appellant.

In the appeal filed against the dismissal of the bail application, the State submitted before the High Court that, in view of Section 43D (5) of the UAPA, at the stage of adjudicating a bail application, the court was only required to see whether there are reasonable grounds for believing that the accusation against the accused were prima facie true. The State claimed that the allegations against the appellant portray him as an integral member of a collective group of terrorists operating under the direction of terrorist organizations situated in Pakistan. Additionally, the State argued, the appellant actively engaged in facilitating terrorist activities by coordinating and providing logistical support to militants situated in the Kashmir valley.

The High Court noted that the evidence gathered by the investigating agency in connection with the “larger conspiracy” case, encompassed evidence in both the physical and the virtual realm.

The court further observed that the analysis report of the digital data obtained from the seized mobile phones revealed the presence of images related to deceased militants and terrorist organizations, and that the appellant had acknowledged sharing these images with individuals with the intent of radicalization within the Kashmir Valley.

Also, the court noted, the appellant in his disclosure statement had affirmed that he had assisted militants in arranging accommodation in his hometown. Further, the prosecution witness had spoken about the appellant’s affiliation with multiple insurgents and had confirmed his association with insurgents as well as his role in harbouring two militants at his residence, the court observed.

The court reiterated that the UAPA 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 court said.

The court referred to the recent decision of the Full Bench of the Supreme Court in Arup Bhuyan versus State of Assam and Anr., 2023 SCC OnLine SC 338, where the top court has upheld the constitutional validity of Section 10(a)(i) of the UAPA and has held that mere membership of a banned organization constitutes an offence under the Act.

The court remarked that at the stage of bail under the UAPA, an extensive or detailed examination of evidence is not necessary and that the court should only assess whether there are reasonable grounds to believe that the accusations against the accused are prima facie true.

The court added that documents forming part of the evidence should not be discarded during the bail proceedings, on the grounds of admissibility. It held that admissibility is a matter of trial, and the court should consider such documents, as they are. However, a surface analysis of the probative value of the evidence must be undertaken while examining the question of granting bail, the court said.

The bench thus concluded that, prima facie there existed reasonable grounds to believe that the accusations against the appellant were true. The court thus dismissed the appeal.

Case Title: SUHAIL AHMAD THOKAR vs NATIONAL INVESTIGATION AGENCY

Citation: 2023 LiveLaw (Del) 880

Counsel for the Appellant: Mr. Kartik Murukutla, Advocate

Counsel for the Respondent: Mr. Gautam Narayan, SPP with Ms. Asmita Singh, Ms. Akriti & Mr. Harshit Goel, Advocates for NIA

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