NIA Court order authored as if it is a court of record: Kerala High Court vacates bail granted to one accused of Maoist links

"We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary", reads the Kerala High Court judgment.
NIA Court order authored as if it is a court of record: Kerala High Court vacates bail granted to one accused of Maoist links
Allan Shuaib and Thwaha FasalMathrubhumi

The Kerala High Court has partially reversed an NIA Special Court’s order concerning bail for two youth, Allan Shuaib and Thwaha Fasal who were accused of having links to banned Maoist terror outfit, Communist Party of India (Maoist). (Union of India v. Allan Shuaib; Union of India v. Thwaha Fasal)

The High Court today upheld the bail granted to Shuaib, while reversing the grant of bail to Fasal. In doing so, it has also expressed disapproval over the drafting of the NIA Court judgment, remarking that it has been prepared as if it is a court of record "which was unnecessary."

In his 64-page judgment, Special NIA Judge Anil K Bhaskar had notably stated that, “Mere possession of Maoist literature, presence in anti-government protests or strong political beliefs does not make a person complicit in terrorist activity.”

In setting aside this ruling in so far as it related to one of the accused, the High Court Bench of Justices A Hariprasad and K Haripal said,

“We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary. Similarly, the learned Judge, while quoting some judgments of the Apex Court, has stated the names of the Hon'ble Judges who authored the judgments which is unwholesome.”
We would also like to remind the learned Judge that the impugned order has been prepared as if it is a court of record which was unnecessary.
Kerala High Court

In this case, Shuaib and Fasal have been charged under the Unlawful Activities Prevention Act, 1967 (UAPA) and the Indian Penal Code for their alleged association and support of the banned Maoist outfit, with the intention to further its activities (Sections 38 and 39 UAPA, Section 120-B, IPC).

The basis of their indictment was their possession of certain documents, pamphlets, and communications relating to Maoism and protests.

Allan Shuaib and Thwaha Fasal
Mere possession of Maoist works, presence in protests, strong political beliefs does not make person liable under UAPA: NIA Court, Kochi

Upon the NIA’s appeal against the bail granted to the two by the Special Court, the High Court accepted the Central Government’s stance that the lower court oversimplified the nature of the material collected.

While some of the documents seized by the investigating authorities were innocuous on the face, the other materials could not be ignored in a lighthearted manner, the High Court held.

The Court took on record the statement of persons who witnessed the youths’ participation in meetings organised by the banned outfit, the nature of documents found in their possession and their adherence to the outfit’s directives on concealment of communications to hold that their involvement in Maoist activities could not be ruled out.

Their involvement with the organisation could be inferred from the circumstances, even in the absence of evidence demonstrating that they were members of an unlawful organisation, the Bench opined.

“True, the prosecution could not prove that the respondents are members of an unlawful organisation. But these are surreptitious activities for which evidence may not be readily available, in black and white. Everything is done under the carpet, behind the curtain, without leaving any footprint. Matters have to be inferred from the circumstances", the High Court's judgment said.

However, deeming Shuaib's young age as a mitigating factor, the Court noted that the material found in his possession was “less serious”. Additionally, the Court took on record Shuaib's psychiatric conditions and directed that he be allowed bail according to the conditions imposed by the Special Judge. Fasal, whose conduct the High Court termed blameworthy was directed to surrender before the Special Judge.

The two, a law student and the other a journalism student, were arrested in November 2019 in a police patrol after they were found with a third person in “suspicious circumstances”.

Upon seeing the police, the third person fled, while Allan Shuaib and Fasal Thwaha were apprehended. A search of their belongings and homes revealed Maoist literature along with pamphlets, articles, and other pieces of writing on social and political events such as Turkey’s war against the Kurds, the implementation of the Madhav Gadgil Committee Report on the protection of the Western Ghat’s ecology, Jammu and Kashmir, the ruling dispensation at the Centre and the UAPA.

The Special NIA Judge had ruled that their leaning towards Maoism by itself could not make them liable under the UAPA and that a positive act had to be proved against them to charge them under the Act.

[Read High Court Judgment]

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Union of India v. Thwaha Fasal - Judgment dated Jan 4.pdf
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