Books, Slogans, Diary Entries, Etc., Not Evidence For UAPA Charges Without Overt Acts Of Violence Or Instigation: NIA Court Kochi [Read Order]

A Special Court in Kochi granted bail to two students arrested in Kerala over alleged Maoist links, after nearly ten months of incarceration, observing that the National Investigation Agency failed to establish a prima facie case under the Unlawful Activities Prevention Act (UAPA), 1967, against the accused.In the case, NIA had submitted chargesheet against Allan Shuhaib (20) and Thwaha Fasal(24) - students of law and journalism respectively - invoking offences under Sections 38 and 39 of the UAPA which deal with association with a terrorist organization and supporting it with the intention to further its activities. The accused were also charged with Section 13 of the UAPA (punishment for unlawful activity) and 120B of the Indian Penal Code (criminal conspiracy).At the outset, the Court noted that the bar against grant of bail under Section 43D(5) of UAPA is not applicable if there are no reasonable grounds to believe that the accusations are "prima facie true".Referring to the SC decision in NIA vs Zahoor Ahmad Shah Watali (2019), the Court said that if a "rational and reasonable doubt" is felt regarding the prosecution case, it will not be precluded from the grant of bail.Judge Anil K Bhaskar of the Special NIA Court, in the 64-page judgment, cataloged the evidence cited by the prosecution into 12 categories as below :Pamphlets/notices/writings issued/authored by various organizations said to be the frontal organizations of CPI(Maoist) -seized from the possession of the accused.Evidence to prove the participation of the accused in the activities and programs of the so-called front organizations.Pamphlets/notices/writings authored by CPI(Maoist) for distribution among the public- seized from the possession of the accused.Writings/banners prepared by the accused themselves for and on behalf of CPI(Maoist) for exhibiting in public.Literature/reading materials on communist ideology -seized from the possession of the accused.Writings/booklets issued by CPI(Maoist) for internal circulation among its cadres - seized from the possession of the accused.Evidence to prove that the accused strictly followed the instructions issued by CPI(Maoist) in their movements and activities.Evidence to prove a series of conspiracy meetings by the accused with underground part-time and professional members of CPI(Maoist).Evidence to prove the strong inclination of the accused towards extremist ideology and acceptance of the path of violence to achieve the ultimate objective of CPI(Maoist) organization.Writings/photos/videos supporting the dissections and disruptive forces in Jammu and Kashmir who are trying to destabilize India- seized from the accused.The similarity of materials seized from the possession of the accused and those seized in relation to crimes registered for encounters with militant Maoists.Evidence to prove that the accused are keeping files written in coded language.The Court observed that the notices, pamphlets, banners, etc., seized from the accused related to "burning social and political issues" such as calling for implementation of Gadgil Committee report for the protection of western ghats, condemnation of encounter killings of Maoists, protests against police atrocities, abrogation of J&K special status, etc. The programmes and activities projected by the prosecution were public protests related to current issues, the court noted."Right to protest is a constitutionally guaranteed right. It is well settled that "Government established by law" has to be distinguished from persons for the time being engaged in carrying on the administration. A protest against policies and decisions of the government, even if it is wrong a wrong cause, cannot be termed as sedition or an intentional act to support cession or secession", the court observed.The Court further noted the mere possession of books on Communist ideology, Maoism, class struggle, etc., does not prove anything adverse against the accused."It becomes adverse only when there is any positive act from the side of the accused to instigate violence. Prima facie there is nothing to suggest any overt act on the side of the accused in this regard", the Court said.The Court also particularly noted that the NIA dropped Section 20 of UAPA(which relates to membership of banned organization) from the chargesheet. So, the Court said that even the NIA does not have a case that the accused are members of Maoist organizations. Scribblings in diaryThe NIA cited the private diary of Allan to allege that he had adopted the path of violence. The diary had entries like :"Fight with guns, fight against the government, together as one power. As the bullets fire from AK47 gun, each bullets against the police. When the enemy attacks, we withdraw. When the enemy rests, we disturb. When the enemy withdraws we attack. When the enemy is gone, we move forward. A new world awaits. Hold on to the guns, the time to pull the trigger is here".In this regard, the Court termed that these...

Books, Slogans, Diary Entries, Etc., Not Evidence For UAPA Charges Without Overt Acts Of Violence Or Instigation: NIA Court Kochi [Read Order]

Manu Sebastian

"A provocative thought does not ipso facto prove preparation for crime", the court observed.

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