The High Court of Kerala on Wednesday denied 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.
Dismissing their appeals filed against the order of Kozhikode Sessions Court, a division bench of Justices A Hariprasad and N Anil Kumar expressed the prima facie view that there are sufficient materials against the appellants to continue an investigation. Their release at this stage might "hamper or adversely affect the furtherance" of the investigation. The Court also observed that third accused in the case was at large.
"The investigating agency apprehends that the accused persons, if released on bail, may not only meddle with the investigation, but also flee from justice. We are not persuaded to ignore these apprehensions", the Court observed.
Allan and Thawaha, activists of Communist Party of India (Marxist), were arrested by Kozhikode police on November 2 on suspected Maoist links and have been under custody since then.
The Kozhikode Sessions Court dismissed their bail applications observing that the books, pamphlets and banners claimed to have been seized from them by police prima facie showed their association with the banned Maoist organization.
The Sessions Court's order was challenged as 'illegal and irregular' on the ground that bail was denied without entering into any finding that they had taken part in any activities of the banned organization.
Regarding Alan, a 20 year old student of law, it was contended that no materials, except a mobile phone, was seized from him by the police, as clear from the seizure report. Without any incriminating materials, the Sessions Court could not have entered a prima facie finding that he was associated with the banned organization. The Sessions Court mixed up the facts of Alan's case with the case of Thwaha, stated the appeal.
As regards Thwaha, a 25 year old student of journalism from whom books and materials were claimed to have been seized, the appeal stated the seizure was 'fictitious'. Even assuming that such books and pamphlets were actually seized from him, mere possession of literature containing ideology of banned organization will not amount to an offence under UAPA, contended the appeal. Reliance was placed on the SC decision in Arup Bhuyan v State of Assam and Indira Das v State of Assam, which held that mere passive membership of an organization cannot be construed as an offence under anti-terror laws, if there is no active commission or incitement of violence.
The High Court rejected these contentions raised by the appellants.
"The nature of the materials revealed from the seizure mahazar dated 01.11.2019 and search list would prima facie show that they cannot be lightly brushed aside as innocent", the HC observed.
The Court distinguished the precedents of Arup Bhuyan and Indira Das, stating that those principles cannot be applied here at an early stage of investigation.
The Kerala HC judgment in Shyam Balakrishnan case, which held the police action against a person for suspected Maoist links to be illegal, was also held to be distinguishable.
Referring to Section 43D(5) of UAPA, the division bench observed that at this stage it is only expected to see if there is any prima facie case against the appellants.
"At this stage of the investigation, it may be too much to insist on proof to show that the accused persons are members of a banned organisation, keeping in mind the fact that normally the activities of a banned organisation will be subterranean", the Court said.
According to the State Attorney, the materials recovered from the 1st accused would reveal details about the organisational set up of Communist Party of India (Maoist) and also their modes operandi in conducting meetings and disseminating Maoist ideology. It was also mentioned in the case diary that certain printed matters challenging the unity and integrity of the Union of India are also recovered from their possession. According to the report, recovery of materials revealing very recent activities of Maoist organisation indicate the accused persons' close link to the outfit. It was also alleged that various photographs pertaining to insurgency activities in Jammu and Kashmir are also seen in the mobile phone of the 1st accused . According to the report, printed materials exhorting people to wage war against the State Government for killing 4 Communist Party of India (Maoist) ideologists were recovered.
The Court observed that the words "associated" and "professes to be associated" occurring in Section 38 of the UAPA are employed in a "broad sense and with a specific purpose".
"Anybody indulging in such activities will normally do so clandestinely or surreptitiously. Contextually therefore, not only overt actions, but covert actions may also at times satisfy the ingredients of the Section, provided they were done knowingly or consciously for the objectives mentioned in the Section. At this inceptive stage of the investigation, the State Attorney contends, it may be difficult for the investigating agency to place all the materials before the court to satisfy the ingredients of the offence, particularly when the materials recovered from the accused contain electronic gadgets and writings in a code language. We find merit in this submission. For establishing these aspects, we are of the definite view, the investigation has to progress", said the Court.
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