Mere Membership Of Terrorist Gang Not Enough To Invoke S.20 UAPA; Prosecution Must Prove Terrorist Act: J&K&l High Court

Justice Rajesh Sekhri made the observation while partly allowing a petition filed by one Dawood, who had challenged the order of the trial court framing charges against him under Sections 13 and 20 UAPA and Section 201 IPC.

The High Court set aside the charge under Section 20 UAPA, while permitting the charges under Section 13 UAPA and Section 201 IPC to continue.

Court Applies Supreme Court's Ruling In Vernon

The Court examined the scope of Section 20 UAPA in light of the Supreme Court's judgment in Vernon v. State of Maharashtra, (2023) 15 SCC 56, which had approved the principles laid down in Dr. Anand Teltumbde v. National Investigation Agency.

Referring to the Supreme Court's reasoning, the High Court noted that Section 20 cannot be understood to mean that merely being a member of a terrorist gang automatically attracts criminal liability. What is required is material indicating involvement in or indulgence in a terrorist act. The Court observed,

“Section 20 cannot be interpreted to mean that merely being a member of a terrorist gang would entail such a member… punishment.”

It further relied upon the Supreme Court's observation that what is important is the “terrorist act” and the material before the Court showing that the accused had been involved in or had indulged in such an act. Applying the principle, Justice Sekhri held,

“It is evident from a plain reading of the afore-quoted excerpt that a 'terrorist act' as defined under Section 2(1)(k) UA(P)A is to be construed having regard to the meaning assigned to it in Section 15 of the Act.”

The Court further held that, for Section 20 to apply, the prosecution is required to show that the accused was a member of a terrorist gang or organisation which carries on or indulges in terrorist acts as defined under Section 15 UAPA.

In the present case, the prosecution alleged that Dawood was closely associated with co-accused Adil Manzoor Langoo and another accused, had been influenced by extremist literature and was aware of the collection of weapons.

It was further alleged that after the attack on two non-locals in Srinagar, Dawood helped in removing traces of the weapon by collecting a polythene bag used for wrapping the pistol and bullets. The prosecution claimed that the polythene was subsequently recovered at his instance.

The NIA also relied upon digital material allegedly showing Dawood in a video containing references to proscribed organisations, besides the statement of a protected witness who allegedly stated that the accused used to come to a mosque and make statements relating to jihad.

However, while examining the specific ingredients of Section 20, the High Court found that the material did not attribute any overt or covert terrorist act to the petitioner. The Court observed,

“There is nothing in the record to suggest that petitioner has committed or indulged in a 'terrorist act' as defined under Section 2(k) UA(P)A, which carries the meaning assigned to it in Section 15 because no covert or overt terrorist act has been attributed to him.”

Holding that the necessary ingredients of Section 20 were absent, the Court concluded,

“There is total absence of ingredients necessary to constitute offence under Section 20 UA(P)A. Standard legal thresholds are not met.” Accordingly, the charge under Section 20 UAPA was set aside.

Mere Possession Of Literature Not By Itself A Terrorist Act

The Court also considered the prosecution's reliance upon the book Milestones, which, according to the NIA, had influenced the petitioner towards extremist ideology.

The High Court noted the distinction between mere possession of literature and conduct demonstrating advocacy, incitement, abetment or participation in unlawful or terrorist activity.

While possession of a book, by itself, would not constitute a terrorist act, the Court observed that such material could assume evidentiary significance where the prosecution is able to establish its connection with other incriminating circumstances, including advocacy, incitement, recruitment or other unlawful activity.

The Court, therefore, examined the book allegation along with the other material relied upon by the prosecution, including the alleged recovery, digital evidence and statement of the protected witness.

The High Court, however, declined to interfere with the charge under Section 13 UAPA. The Court noted that, unlike the material considered in Vernon, the prosecution in the present case was relying upon several circumstances against the petitioner, including the alleged recovery of the polythene, digital material and the statement of a protected witness.

The Court found that, at the stage of framing charge, the material was sufficient to constitute a prima facie case under Section 13. It observed that the material relied upon by the prosecution indicated, prima facie, that the petitioner had,

“committed, advocated and incited the commission of unlawful activities by signs and visible representation” within the meaning of the statutory provisions.

The Court consequently declined to interfere with the Section 13 charge.

Court Can Modify Charges Framed By Investigating Agency

The Court also rejected the petitioner's contention that since Sections 13 and 20 UAPA had not been invoked in the manner suggested by the investigating agency, the trial court could not frame those charges. Justice Sekhri reiterated that the charge-sheet represents the opinion of the investigating agency, whereas framing of charge is a judicial function.

The Court observed that the opinion of the police regarding the offences made out is not binding upon the trial court. The court is required to independently examine the material collected during investigation and may frame an appropriate charge if the material discloses the commission of an offence.

The Court further declined to interfere with the charge under Section 201 IPC, noting that the prosecution had relied upon forensic material concerning the polythene allegedly recovered at the petitioner's instance. The Court found that the material placed on record, including the CFSL/FSL material, was sufficient at the charge stage to disclose a prima facie case of destruction or concealment of evidence.Accordingly, the charge under Section 201 IPC was permitted to stand.

The High Court ultimately partly allowed the petition. The charge framed against Dawood under Section 20 UAPA was set aside, while the charges under Section 13 UAPA and Section 201 IPC were upheld. The trial court was directed to proceed with the case in accordance with law.

Case Title: Dawood v. Union Territory of J&K through National Investigation Agency

Citation: 2026 LiveLaw (JKL) 326

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