[S.18 UAPA] Provision Penal In Nature, Ultimately Must Be Proven With Evidence: Telangana High Court Upholds Bail For PFI Members

The Telangana High Court has held that Section 18 of the Unlawful Activities Prevention (UAPA) Act is only penal in nature, and needs to be proved by the prosecution. In doing so, the Court granted bail to 9 trained cadre/members of the Popular Front of India (PFI). “Section - 18A deals with 'punishment for organizing of terrorist camps', Section - 18B deals with punishment for recruiting of any person or persons for terrorist act' which says that whoever recruits or causes to be recruited any person or persons for commission of a terrorist act etc. are liable for punishment. It is only a penal provision. Ultimately it has to be proved by NIA by producing evidence," it said. The order was passed by a division bench of the Telangana High Court comprising Justice K. Lakshman and Justice P. Sree Sudha in a batch of criminal appeals filed by the members of the PFI who alleged to have practised in terrorist activities in the year 2021 as defined under the UAPA Act. The appeal was filed challenging the bail rejection order passed by the Special Court for NIA Cases. The Popular Front of India is an Islamic Organisation that was banned in the year 2022. It was alleged the petitioner/appellants in the year 2021 hand conducted various gatherings and in said gatherings had provoked and manipulated the youth into developing violent and hateful feelings towards Hindutva Organisations. It was further alleged that in the said meetings the youth was taught how to use weapons and inflict injuries to the core organs. Code words such as 'Book-1, Book-2 and Book-3' were used to impart combat knowledge. In 2023, when the accused filed for bail, owing to the gravity of the alleged offences, and based on the objections filed by the public prosecutor, the trial court dismissed the bail applications. The counsel appearing on behalf of the accused contended that it was not a terrorist organisation to begin with and conducted many welfare activities such as distribution of ration kits, food during Ramzan, organizing blood donation camps, 'school chalo' campaign for giving school uniforms, books and scholarships for the poor Muslim students. Nonetheless, it was stated that the organisation was banned only in 2022 and the alleged activities conducted by the petitioners were from 2021, when the organisation and all its activities were legal. He further submitted that the trial court failed to distinguish between 'unlawful activities' and 'terrorist activities' and hence the embargo under section 43D(5) of the UPAP would be inapplicable. Lastly, it was stated that the investigation was complete and a charge sheet was filed and this stage, the petitioners/accused who were a welder, a pickle shop owner, a painter, a chicken shop owner, a photostat shop owner and an electrician were incapable to participating in the alleged activities. Additional Solicitor General on behalf of the NIA on the other hand contended that the accused were convicted on the basis of the deposition of certain protected witnesses and if the accused were set free on bail, they were would to threaten the witness and coerce them into changing their depositions. He further stated that after the confession statements of the protected witnesses, it was on the accused to prove that they had not committed any offences. The Court while deliberating noted that the determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. Further, the Court noted that section 43 of the Act lays down certain criteria to gauge whether the accusations are 'prima facie true' and adding to that, relying on Dhan Singh v. Union of India held that the court needs to undertake the exercise of crosschecking the truthfulness of the allegations made. Making reference to the Gurwinder Singh v. State of Punjab and Zahoor Ahmad Shah Watali judgement, the Court noted that prima facie would mean that the evidence collated by the prosecution must prevail without being disproved or overcome and should be good and sufficient to establish a chain of events. In light of the above-mentioned observation, the Court went on to hold that the PFI was banned only in 2022 where as the alleged terrorist activities took place in 2021, when the organisation was lawful. It was also observed that no recoveries were based on the confessions made by the protected witnesses. The only argument raised by the prosecution was that if set out of bail, the accused/petitioners may coerce the protected witnesses, the Bench noted. It stated that in the event any of the prosecutions apprehensions were realised, they could seek cancellation of bail, but it cannot be a ground to oppose grant of bail. Lastly, the Bench also appreciated that a couple...

[S.18 UAPA] Provision Penal In Nature, Ultimately Must Be Proven With Evidence: Telangana High Court Upholds Bail For PFI Members

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