Updated: October 29, 2021 1:01:14 am
GRANTING BAIL to a Kerala youth arrested under the Unlawful Activities (Prevention) Act, 1967, in November 2019, for alleged Maoist links, and affirming a trial court’s order granting bail to his co-accused, the Supreme Court said on Wednesday that “mere association with” or “mere support” to “a terrorist organisation is not sufficient” to prove the offence under the Act. “The association and support have to be with intention of furthering the activities of a terrorist organisation,” it said.
Thwaha Fasal and Allan Suhaib, both students, were arrested by the Kerala police in November 2019. The case was later handed over to the NIA. In September 2020, the NIA court had granted them bail, saying the agency had failed to establish a prima facie case against them.
A bench of Justices Ajay Rastogi and A S Oka allowed Fasal’s appeal against the Kerala High Court’s order which set aside the bail granted by the NIA court. It also rejected the NIA’s appeal against the HC order upholding the bail granted to Suhaib.
“Taking the chargesheet as correct, at the highest, it can be said that the material prima facie establishes association of the accused with a terrorist organisation CPI(Maoist), and their support to the organisation. Now the question is whether on the basis of the materials forming part of the chargesheet, there are reasonable grounds for believing that accusation of commission of offences under Sections 38 and 39 against the accused 1 and 2 is true. As held earlier, mere association with a terrorist organisation is not sufficient to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39. The association and the support have to be with intention of furthering the activities of a terrorist organisation,” said the court.
“In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organisation which are borne out from the materials forming a part of chargesheet,” it said.
“At a formative young age, the accused… might have been fascinated by what is propagated by CPI(Maoist). Therefore, they may be in possession of various documents/ books concerning CPI(Maoist), in soft or hard form. Apart from the allegation that certain photographs show that the accused participated in a protest/ gathering organised by an organisation allegedly linked with CPI(Maoist), prima facie there is no material in the chargesheet to project active participation of the accused… in the activities of CPI(Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organisation,” said Justice Oka, writing for the bench.
“Apart from the fact that overt acts on their part for showing the presence of the required intention or state of mind are not borne out from the chargesheet, prima facie, their constant association or support of the organisation for a long period of time is not borne out from the chargesheet,” said the court.
The SC said the NIA court had noted that there was no prima facie material to show intention on the part of both the accused to further the activities of the terrorist organisation.
“The High Court observed that the learned Special Judge has oversimplified the matter. However, the High Court did not notice that by taking the material collected during the investigation which forms a part of the chargesheet as it is, the Special Court had recorded a prima facie finding regarding the absence of any material to show intention on the part of the accused to further the activities of CPI(Maoist). The High Court has not recorded prima facie finding on this aspect,” it said.
The court also relied on a previous judgment which said bail could be granted in such cases where there is a possibility of the trial not getting over in a reasonable time. It said there are 92 witnesses in the case and “even assuming that some of the witnesses may be dropped at the time of trial, there is no possibility of the trial being concluded in a reasonable time as even charges have not been framed”.
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