Mere Possession Of Extremist Literature Not 'Terrorist Activity' Under UAPA; No 'Credible Evidence' Against Vernon & Arun: Supreme Court

Mere possession of literature even if it inspires or propagates violence by itself would neither amount to a ‘terrorist act’ within the meaning of Section 15 of the Unlawful Activities (Prevention) Act, 2002, nor any other offences under Chapters IV and VI of the Act, the Supreme Court of India held while granting bail to Bhima Koregaon-accused and activists Vernon Gonsalves and Arun Ferreira. This verdict was delivered yesterday by a bench of Justices Aniruddha Bose and Sudhanshu Dhulia.The Court also held that there was "no credible evidence" against them regarding the commission of any terrorist act as defined under the UA(P)A."There has been no credible evidence against the appellants of commission of any terrorist act or enter into conspiracy to do so to invoke the provisions of Section 43D (5) of the 1967 Act....Nor there is any credible case of conspiracy to commit offences enumerated under chapters IV and VI of the 1967 Act", the Court observed after noting that the materials collected by the NIA were in the nature of "hearsay evidence" and materials seized from third parties. Gonsalves and Ferreira were arrested in connection with the 2018 caste-based violence that broke out at Bhima Koregaon in Pune, and for having alleged links with the proscribed far-left outfit, Communist Party of India (Maoists). The duo have been in jail since August 2018 for alleged offences under various sections of the Indian Penal Code, 1860, as well as the Unlawful Activities (Prevention) Act. Their bail pleas were earlier rejected by the Bombay High Court. The UAPA provisions pressed into service are Sections 13 (Punishment for unlawful activities), 16 (Punishment for terrorist act), 17 (Punishment for raising funds for terrorist act), 18 (Punishment for conspiracy, etc.), 18B (Punishment for recruiting of any person or persons for terrorist act), 20 (Punishment for being member of terrorist gang or organisation), 38 (Offence relating to membership of a terrorist organisation), 39 (Offence relating to support given to a terrorist organisation), 40 (Offence of raising fund for a terrorist organisation).'Mere possession of literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV & VI of the UAPA'#SupremeCourt in judgment granting bail to Vernon Gonsalves & Arun Ferreira in Bhima Koregaon case. pic.twitter.com/RlLVK0c2mG— Live Law (@LiveLawIndia) July 28, 2023 No evidence of terrorist act Although under ordinary circumstances, an analysis of evidence is not necessary in a bail hearing, but in view of the restrictive provisions of Section 43D of the 1967 Act, some element of evidence-analysis becomes inevitable, the court said, before proceeding to appraise the material placed on record by the National Investigating Agency. Among other things, the prosecution relied on books, pamphlets, some of which were allegedly recovered from Gonsalves and Ferreira’s residence. According to the bench, these books and pamphlets mainly involved writings on extreme left-wing ideology and its application to India. The court notes: “…The second head of alleged offensive acts of the appellants is keeping literature propagating violence and promoting overthrowing of a democratically elected government through armed struggle. But again, it is not the NIA’s case that either of the two appellants is the author of the materials found in their residences, as alleged. None of these literature has been specifically proscribed so as to constitute an offence, just by keeping them.” With respect to the alleged offence of committing a ‘terrorist act’ within the meaning of Section 15 of the Unlawful Activities (Prevention) Act, the court concluded that the acts specified in sub-clause (a) of Section 15(1) cannot be attributed to the appellants; an offence under sub-clause (b) of Section 15(1) is not prima facie made out on the basis of the evidence; and there is no allegation against the appellants that would attract sub-clause (c) of Section 15(1). While discussing the allegation that Gonsalves and Ferreira had ‘overawed’ or attempted to overawe by means or show of criminal force, with the intent of threatening the unity, integrity, security, and sovereignty of the country or strike terror in the people, as defined in Section 15(1)(b), the court specifically dealt with the issue of extremist literature: “…Some of the literature alleged to have been recovered from the appellants, by themselves give hint of propagation of such activities. But there is nothing against the appellants to prima facie establish that they had indulged in the activities which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts by the appellants to do so. Neither there is allegation against them of causing death of any public functionary or attempt to cause...

Mere Possession Of Extremist Literature Not 'Terrorist Activity' Under UAPA; No 'Credible Evidence' Against Vernon & Arun: Supreme Court

Awstika Das

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