The NIA Court at Kochi on Wednesday granted bail to Allan Shuhaib and Thawaha Fazal, who were arrested by Kerala police under Unlawful Activities Prevention Act for alleged links with banned Maoist organization.
Judge Anil K. Bhaskar observed that the accused were able to bring out a rational and reasonable doubt on the question of prima facie case and therefore bar under Section 43D(5) of the UAPA Act stands lifted.
Allan and Thawaha, activists of Communist Party of India (Marxist), were arrested by Kozhikode police on November 2, 2019 on suspected Maoist links and have been under custody since then. The High Court of Kerala had denied bail to the duo, who were arrested by Kerala police under Unlawful Activities Prevention Act for alleged links with banned Maoist organization.
To grant bail, the judge noted that the accused does neither have any other criminal antecedents, nor have any influential background and are students and young men with a possibility of reforming themselves. The court said:
"On evaluating the materials placed on record for the limited purpose of the disposal of bail applications, it appears to me that even though the prosecution was able to establish the first postulate of sections 38 and 39 that the accused had associated with and supported CPI(Maoist) organization, it is doubtful whether the prosecution has made out a prima facie case regarding second postulate that the affiliation and support rendered by the accused to the banned organization were done with intent to encourage, further, promote or facilitate the commission of terrorist activities."
"Here the petitioners are budding youngsters. At the time of arrest, the first accused was just 19 years old. The second accused was 23 yeras of age. The first accused was a student of law. The second accused was a student of journalism. It appears that they used to be pro-active on each and every contentious social and political issues. Such persons are more prone to extremist ideologies and probably that may be the reason for the petitioners to come in contact with banned organizations. Therefore to some extent the court has to be lenient to them on the question of granting bail , but with a clear message that the chance given for reformation shall not be mistook as an opportunity to fasten their bond with banned terrorist organization and to be part of it. One cannot have recourse to violent methods to overawe democratically elected government or legally formed Governmental Machinery, even though people are being tempted to have recourse to such things. Let us hope that the parents of the petitioners would play a constructive role in the betterment of the mental and psychological qualities of the petitioners."
Referring to the Bombay high court judgment in Jyoti and others vs State of Maharashtra (2012), the court said that a number of persons are influenced and get attracted towards the Maoist philosophy because of the oppression of the weaker section, which they might have experienced in the social set up.
"As observed by the Hon'ble Bombay High Court a number of persons are influenced, and get attracted towards the Maoist philosophy beacuse of the oppression of the weaker section which they might have experienced in the social set up. It is impossible to hold that all such persons are to be treated as members of a terrorist organization or that there they are liable to be punished for having some faith in such philosophy or having some sympathy for those who propagate such philosophy one. The strategy to fight against terrorism is to dissuade disaffected groups from embracing terrorism."
The judge also referred to the judgment of the Kerala High Court in Shyam Balakrishnan vs. State of Kerala, which held that, being a Maoist is not a crime and that the police cannot detain someone merely because he is a Maoist unless his activities are unlawful. The court said that since no specific violent at overt acts are attributed against the accused, at this stage, it is not possible to prove any nexus between the accused and the terrorist activities of organization.
Regarding the Kashmir Pamphlets, the Judge observed thus:
"It is to be taken note that these banners were prepared in the aftermath of abrogation of Article 370 and Article 35A of the Indian constitution by the Indian Parliament any evaluation diverted from the context will lead to bad conclusions. Right to protest is a constitutionally guaranteed right. It is well settled that the expression 'government established by law' has to be distinguished from persons for the time being engaged in carrying on the administration. A protest against the policies and decisions of the government, even if it is for a wrong cause, cannot be termed as sedition or an intentional act to support cession or secession. A contextual evaluation of the objectionable writings referred above does not prime office approve any attempt to create any hatred or contempt to government of India nor does it excite any disaffection."
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