Intention To Further Activities Of Terrorist Organization Mandatory For Offences Under Section 38/39 UAPA : Thwafa Fasal's Lawyer Argues For Bail In Supreme Court

The Supreme Court on Tuesday started hearing in the cases relating to the bail for two Kerala-based youngsters, Thwaha Fasal and Allan Shuhaib, booked under the UAPA for alleged Maoist links.The bench of Justices Ajay Rastogi and A. S. Oka was hearing the the SLP filed by the National Investigation Agency challenging the Kerala High Court judgment which did not interfere with the trial court's order granting bail to law student Allan Shuhaib in a UAPA case registered over alleged Maoist links. Also listed was the petition filed by Allan Shuhaib's co-accused Thwaha Fasal, a journalism student, challenging the very same judgment of the Kerala High Court which set aside the bail granted to him by the Special NIA Court.Senior Advocate Jayant Muthuraj, for Fasal, had urged for bail, advancing that Fasal is a 22 year old whose background is such that he is working as a construction worker. He told that Fasal is pursuing journalism through correspondence, that he has been in custody for 572 days and the trial is not progressing and that 92 witnesses are to be examined. He pointed out that the charge under section 20, UAPA (Punishment for being member of terrorist gang or organisation), though invoked in the FIR, has been dropped in the chargesheet. It was advanced that he has no antecedents. Further, he urged that nothing of substance was recovered from his possession at the time of his arrest and even the subsequent search of his house did not furnish any incriminating materials so as to create the presumption of a prima facie case so as to preclude bail. "The intent to further the activities of the terrorist organisation is mandatory to make out an offence under sections 38 and 39 of the UAPA. Otherwise, everybody will come to be thrown into jail for indefinite periods just for having a pamphlet or a book in their houses!", he had argued. He further submitted that both sections 38 (Offence Relating to Membership of a Terrorist Organisation) and 39 (Offence Relating to Support Given to a Terrorist Organisation) provide that the convict shall be punishable with imprisonment for a term not exceeding 10 years or fine or both, and hence, the two provisions call for lesser restrictions on bail.Mr. Muthuraj submitted, "The chargesheet says there was a secret meeting by Accused 1, 2 and 3 at a public place, from where I was arrested, for discussion on displaying banners and distributing pamphlets towards unlawful activities of the CPI (M) and spreading disaffection for the government…the chargesheet says that the investigation reveals that Accused 1 and 2 (Shuhaib and Fasal) had contributed money by way of membership fee to the CPI (M). But there is no charge of funding, these are allegations. I did not arrange the meeting, I did not assist in its arrangement, I have not funded anything…Now, please look at the material seized on arrest- 2 books titled 'Caste Issues in India' and 'Organisational democracy – disagreement with Lenin'…Then there was a search and seizure at my house and the chargesheet says the police recovered incriminating material attributable to and supporting the CPI (M), 'anti-national propaganda material'. The chargesheet mentions around 18 items- please note some of them- a diary; a book called 'Hello Bastar: The Untold Story of Indian Maoist Movement', which is found on Flipkart! The chargesheet says there was a one-page writing saying 'Support freedom struggle of J & K' and banners with the same writing. In addition, the allegation is that I was shouting that 'Inquilab Zindabad' and 'Maoist Zindabad' after the arrest…when the police arrested me, I did not move an inch while Accused 3 ran away! I have a huge variety of books in my house, they are not concealed and all are at the main place!", he continued."Suppose, an organisation arranges a meeting and I provide food, would that mean I am supporting? The Trial Court looked into all this, analysed the 'Support J & K' banner, pamphlets and other material and said he was studying journalism, he might have inclination to Maoism but that does not mean association. The trial court relied on various judgments of the Supreme Court in this behalf and concluded that mens rea is necessary for sections 38 and 39, that there must be intention to further terrorist activity. It said that terrorist activity is necessary and not just activities of a terrorist organisation! Accordingly, the trial court granted bail. But the High Court said that terrorist act is not necessary and it is enough if one is doing anything in connection with a terrorist organisation. The High Court says that keeping pamphlets, banners in your house is enough to be considered for association with organisation. Kindly mark that the witnesses referred in the High Court do not say anything against me, nothing incriminating…", submitted Mr. Muthuraj."What has weighed with the High Court to interfere in your bail and not of Accused 1(Allan Shuhaib)?", asked the bench."There are 2 distinguishing...

Intention To Further Activities Of Terrorist Organization Mandatory For Offences Under Section 38/39 UAPA : Thwafa Fasal's Lawyer Argues For Bail In Supreme Court

Mehal Jain

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