Merely Seeing Accused In The Company Of A Member Of A Terrorist Organization Does Not Attract UAPA: J&K&L High Court Grants Bail

The Jammu and Kashmir and Ladakh High Court recently allowed bail to a man who was booked under Unlawful Activities (Prevention) Act, 1967, merely because he was seen in the company of a member of a terrorist organization. While granting bail, the Court observed that merely seeing him with a member of a terrorist organization is not enough to attract UAPA charges. "It is, thus, clear that merely the accused having been seen in the company of a member of a terrorist organization without doing anything more is not enough to attract the applicability of UAPA Act. Keeping in view the totality of circumstances and the discussion made hereinabove, we are of the considered view that this appeal deserves to be allowed. Ordered accordingly." Court was hearing an appeal under Section 21 of the National Investigation Act, 2008 challenging the order of Special Court rejecting his plea for bail in connection with alleged offences under Sections 13, 17, 18, 38, 39 & 40 of UAPA read with Sections 120-B, 121, 121-A & 124-A IPC. BackgroundThe appellant had challenged the order of rejection on the ground that the FIR was first registered on 11 January, 2020 against one Syed Naveed Mushtaq and others under UAPA, Arms Act and Explosive Substances Act. The investigation was thereafter taken over by the National Investigating Agency and the case was re-registered whereafter, the appellant came to be arrested. Subsequently, during the pendency of his application for bail, the Respondents, allegedly, on the same set of accusations against him, filed another FIR under UAPA and IPC and as soon as the appellant was released on bail in the above mentioned case, he was arrested in the subsequent FIR. In light of the above circumstances he submitted that his Constitutional rights have been violated. Appellant laid much stress on the submission that once an FIR was registered against him, wherein he was released on bail, on same set of allegations, the second FIR could not have been registered against him and this being an important aspect, has been ignored by the trial Court while rejecting his bail plea. He added that trial Court failed to consider that from the charge-sheet as well as the material placed on record by way of evidence collected during the investigation, the accusations are not made out against him. Further, it was submitted that the trial court has erred in law in not appreciating that proviso to Section 43-D(5) of UAPA Act is attracted only when the charge-sheet and the material placed in support thereof affords reason to believe that the accusation of being involved in the commission of offence punishable under Chapter IV and VI of the UAPA Act is, prima facie, true. He argued that in the present case, taking the allegations made in the final report on their face value do not make out a case of commission of any offence falling under Chapter IV and VI of the UAPA Act. It was thus submitted that the rigours of Section 43-D of UAPA Act were not attracted and this aspect ought to have been considered by the trial Court. The Government counsel on the other hand argued that the initial FIR is not only against the appellant, in particular, but it involves a number of political persons, terrorist outfits, secessionists and influential persons, who, in order to achieve their aim of causing instability in the Union Territory and eventually to cessation of Union Territory from Union of India, have been indulging in terrorist activities. It was submitted that the second FIR registered by NIA relates to a single transaction and therefore, the argument of sameness of the allegations in both the FIRs is not tenable. It was contended that since the trial Court has framed charges against the appellant and, therefore, it is not open to him in this appeal to contend that the ingredients of the offences alleged against him are missing and that no offence as alleged is made out against him. He also argued that offences allegedly committed by the appellant fall in Chapter IV and VI of UAPA Act and, therefore, the rigours of Section 43-D of UAPA Act are triggered. FindingsCourt noted that the object behind the denial of bail is always preventive as opposed to punitive. The bail in the bailable offences is as a matter of right and subject only to furnishing of security as an assurance of the accused for his/ her submission whenever demanded by legal authority, whereas in the matter of non-bailable offences, it is the discretion of the Court, which, of course, is to be exercised by the Court on well defined parameters of law. "The most fundamental distinction between the general bail provisions and the bail provisions engrafted under UPA Act owes its origin to sub-Section (5) of Section 43-D of UAPA Act which, in addition to the general restrictions on the grant of bail imposed by the Cr.P.C, also provides that the person accused of an offence ...

Merely Seeing Accused In The Company Of A Member Of A Terrorist Organization Does Not Attract UAPA: J&K&L High Court Grants Bail

Zeb Hasan

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Merely Seeing Accused In The Company Of A Member Of A Terrorist Organization Does Not Attract UAPA: J&K&L High Court Grants Bail

Zeb Hasan

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