Kerala High Court Sets Aside Bail Granted To Thwaha Fasal In UAPA Case Over Alleged Maoist Links; Allan's Bail Not Cancelled

The Kerala High Court on Monday set aside the order passed by by Special NIA Court Kochi granting bail to Thwaha Fasal in a UAPA case for alleged Maoist links.The High Court however has not cancelled the bail granted to Allan Shuhaib, who was also arrested along with Thwaha in November 2019.A division bench comprising Justices A Hariprasad and K Haripal allowed the appeal filed by the National Investigation Agency against the September 9 order passed by Special NIA Court, Kochi, granting bail to Thwaha, student of journalism. The High Court said that it was not interfering with the bail granting to Allan Shuhaib at the moment, considering his young age and also his psychiatric issues. The Court also observed that the materials seized from Allan were less "serious" when compared to those seized from Thwaha. The Court also placed particular emphasis on the allegation that Thwaha had uttered pro-Maoist slogans, which the court termed "blameworthy".The High Court has directed Thwaha to surrender before the trial court. The HC has also given a direction to the NIA Court to complete the trial within one year. The High Court has also set aside the finding of the trial court that no prima facie case was made out against the accused. The HC observed that the trial court went beyond the scope of prima facie enquiry for the purposes of bail consideration."While considering the question whether there is prima facie material to infer commission of offence under Sections 38 and 39 of the Act, the court should have confined to the area of enquiry instead of going haywire.We have no doubt that rights and personal liberty are sacrosanct. Courts are bound to protect it. At the same time, individual rights should subserve the national interest. When individual rights are pitted against national interest and security, the latter should prevail", the judgment authored by Justice K Haripal observed.The HC observed that the trial court went into a "thread-bare analysis" of the documents on record as if in a trial'. Reference was made to the SC decision in NIA v Zafoor Ahmed Shah Watali which held that the totality of the materials should be looked into for the purpose of bail consideration under Section 43D(5).'Volatile' documentsThe High Court observed that the documents seized from the accused were "highly inflammable and volatile"."After rushing through the materials we are only to say that, generally speaking,some of those materials are not innocent and innocuous which could be ignored in a light-hearted manner", the HC said.The bench observed that the prosecution had no case that the accused were members of terrorist organization and that the case against them was that they were supporting the banned outfit."A terrorist act and acts which further the activities,by promoting and assisting activities of such terrorist organisation by persons who associate themselves or profess to be associated have to be seen differently. Separate provisions have been incorporated in the statute to meet such contingencies", the HC remarked.The High Court did not accept the argument that the accused were keeping such books and records out of their intellectual curiosity."The respondents had carried numerous writings and literature published by the said organisation or by those who have strong allegiance to the outfit. That means, the contention that the respondents had carried such materials out of their youthful inquisitiveness and quest for understanding new ideologies and curiosity does not carry any weight. If they, as youngsters were interested in understanding and assimilating new and novel ideologies, a bunch of materials published by a particular outfit alonewould not have been found in their possession and power. The underlying element of mens rea cannot be overlooked. Therefore, this circumstance alone is sufficient to say, at least at this stage, that they are protagonists of the organisation"."It is seen that they consider the administrative set up of the Government and the police as their foes.The strategies adopted by them to further the activities of the outfit are vividly given in the guidelines regarding the movements of the activists,how meetings should be convened, guidelines regarding use of electronic gadgets, use of internet, computer, social media etc., and how precautionsare to be taken. This document also envisages two types of comraderie-'parasya sakhakkal' and 'rahasya sakhakkal' that is, comrades working overtly and covertly. By no stretch of imagination it could be thought that such types of documents were carried by the respondents out of mere curiosity or intellectual pursuit of new ideologies", the HC added.The HC said that 15 copies of the literature were found in the possession of the second accused(Thwaha). It is a very strong circumstance capable of drawing ...

Kerala High Court Sets Aside Bail Granted To Thwaha Fasal In UAPA Case Over Alleged Maoist Links; Allan's Bail Not Cancelled

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