Mere possession of “jihadi literature” does not amount to an offence unless there also exists material about the “execution” of such an ideology, a Delhi court told the National Investigation Agency (NIA) while hearing an Unlawful Activities Prevention Act (UAPA) case.
The NIA has accused eleven people of aligning themselves with ISIS, “being part of various ISIS propaganda channels on different secured as well as unsecured social media applications”, and “propagating the violent jihadi ideology of the ISIS”. It has also flagged a transaction of Rs 60,000 between the accused persons as terror funding.
Principal District and Sessions Judge Dharmesh Sharma, in his order passed on October 31, said: “To hold that mere possession of jihadi literature having a particular religious philosophy would amount to an offence, though such literature is not expressly or specifically banned under any provision of law, is not fathomable in law unless and until there is material about execution of such philosophy so as to do terrorist acts.”
“Such a proposition runs counter to the freedoms and rights guaranteed by Article 19 of the Constitution. Even if they were impressed by the said philosophy and ideology, still they cannot be said to be members much less such members as would attract the penal liability of the said organisation,” the court said.
The court said that although each of the accused was probably aspiring to become a member of ISIS, “there is no iota of evidence if any of the accused had been conferred any rank… or for that matter any specific task by the ISIS to carry out a terrorist act.”
“There is no evidence that there is ever any acknowledgement by any one in the Command hierarchy of the ISIS or its subsidiary or affiliated outfit treating any of the accused as its foot soldiers or members of any ‘sleeper cell’,” the court said.
The court framed charges against Mushab Anwar, Rhees Rasheed, Mundadiguttu Sadanananda, Marla Deepthi, Mohd Waqar Lone, Mizha Siddeeque, Shifa Haris, Obaid Hamid Matta and Ammar Abdul Rahiman under IPC Section 120B (criminal conspiracy), read with Sections 2(o) (unlawful Activity), 13 (punishment for unlawful activities), 38 (offence relating to membership of a terrorist organisation) and 39 (offence relating to support given to a terrorist organisation) of the UAPA.
The court discharged one accused, Muzamil Hassan Bhat.
While framing charges, the court said that the accused have been sympathisers of ISIS ideology and professed themselves to be lone wolves intending to bring the caliphate to Jammu and Kashmir. It did not agree with the defence’s argument that the accused persons were “not disseminating the provocative messages”.
But the judge said: “The material gathered by the investigation agency at the best demonstrate that almost all the accused except one accused were ISIS sympathisers and accessing highly radicalised jihadi material from the web world but there is no iota of material to suggest any of the accused individually or in association with one or the other committed or planning any terrorist act.”
On allegations that the accused conducted recruitment drives, the court said there is nothing in the messages that would demonstrate that any such kind of recruitment process was ever conducted by any of the accused persons.
On the terror funding charge, the court said that there is no material that such funds were transferred to the terrorist organisation.
“There is no material collected so as to demonstrate that any of the accused in question made any attempt or in fact procured any weapons, arms or ammunition on receiving such funds,” the court said.
“To sum up, the accused persons before this court are more or less young persons and their religious & ideological bent of mind is certainly disdainful, despicable and contrary to the ideals of the Constitution of India. However, since none of the accused is said to have indulged into any acts of violence or of being a party to any conspiracy for committing any particular terrorist act, they cannot be held prima facie to have committed the offences in question,” the order read.