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While granting bail, the Special Court Judge also added: "this was to be an opportunity for reformation and not an opportunity to fasten their bond with a banned terrorist organisation."
A Kochi NIA Special Court recently granted bail to Allan Shuaib and Thwaha Fasal, two youths from Kozhikode, who have been charged under the Unlawful Activities Prevention Act, 1967 (UAPA) and the Indian Penal Code for their alleged association and support of banned Maoist terror outfit, Communist Party of India (Maoist), with the intention of furthering its activities (Sections 38 and 39 UAPA, Section 120-B IPC).
Additionally, Thwaha was charged under Section 13 for possessing a banner supporting the secession of Kashmir from the Indian Union (Punishment for Unlawful Activities).
The two, one a law student and the other a journalism student were arrested last November in a police patrol after they were found with a third person in “suspicious circumstances”.
Upon seeing the police, the third person fled, and Allan and 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.
Finding that the offences against them were not prima facie borne out by the evidence collected, Special NIA Judge Anil K Bhaskar opined:
Their earlier bail applications, made while the investigation against them was in progress, were rejected. Their last bail plea was rejected by the Kerala High Court. During this time, the two were accused of being members of the Communist Party (Maoist).
The Special Judge stated that the offences under Sections 38 and 39 of the UAPA required intention to be proved.
There were two ingredients postulated for both the offences, the Judge explained;
one, associating or supporting an organisation declared a terrorist organisation;
two, doing so with the intention to further the activities of the organisation.
Explaining that activity for the purpose of the UAPA was described under Section 13, Special Judge Bhaskar found the first requisite was prima facie fulfilled.
The Judge also referred to Supreme Court judgments under the erstwhile anti-terror laws i.e. TADA and POTA, to state that the Supreme Court has consistently rejected the doctrine of “guilt by association.”
Reasoning that the prosecution had not managed to show that the youth actively part took in the organisation’s terrorist activity, NIA Judge Bhaskar queried whether the affiliation the accused had with the banned organisation and the support rendered were with the purpose to “encourage, further, promote, or facilitate the commission of violent activities.”
In drawing his conclusion that the material recovered from Thwaha and Allan’s possession did not prima facie prove the intent, Judge Bhaskar discussed each of the material produced by the NIA.
Much of the material on record related to “burning social or political issues”, and did not demonstrate an intent to encourage a terrorist activity or facilitate commission, he opined. The protests and meetings attended by the two, in solidarity with the Kurds, against police atrocities, the 2016 demonetisation of currency, etc. were issues “debated and discussed in the social and political sphere” and were conducted peacefully, he added.
With regard to the Maoist pamphlets and literature found in their possession, the Judge found these to also pertain to contemporary social and political issues, which did not excite violence in any manner. Speaking specifically about the writings of Mao, Communism, class struggle etc. that were recovered, the Special Judge remarked, quoting a Kerala High Court ruling:
“Being a Maoist is not a crime, though the political ideology of Maoists does not synchronise with our constitutional polity. It becomes adverse only when there is any positive act from the side of the accused to instigate violence. Prima facie there is nothing to suggest any overt act on the side of the accused in this regard.”
The prosecution also submitted Allan’s diary to the Court, in which he allegedly wrote of violence.
His counsel, Advocate Isac Sanjay urged that a private diary at most represented his 'anguished mind and wild thoughts'. The Special Judge rejected the contention that the diary was not admissible but opined that the diary entries that did not depict any blueprint for a terrorist act, but rather only comprised of emotion venting. As noted by the Judge:
Stating that the accused did not indulge in violent acts either before or after he penned his thoughts, this piece of evidence was also prima facie found wanting.
Some leaflets titled “Enemy tactics and our counter tactics” was found from the possession of the second accused Thwaha Fazal. The document contained clear directions to cadre to destroy evidence while carrying out the activities of the organisation. The prosecution insisted that the accused were strictly following the instructions printed in the document, for instance, when they were apprehended, they did not have their mobile phones on their person.
The Judge pointed out that their homes were full of incriminating documents, despite the directive in the leaflet to leave no traces of their involvement in their residences.
“If we go by the instructions, there is a clear directive that no devices or document shall be kept in the house of the accused. They were not even concealed”, Special Judge Bhaskar observed.
Holding that the possession of an internal document of the banned organisation only indicated a leaning in that direction, the Judge found the charges under the UAPA to be doubtful.
The charges of conspiracy against the accused were also found inconclusive since the evidence did not point to the planning of a specific terrorist act.
A banner against the abrogation of Article 370 of the Constitution that was found in Thwaha Fazal’s house was urged by the Judge to be evaluated contextually, in light of the Government’s action last year.
Emphasising upon the need for leniency since records revealed that the petitioners could reform themselves, the Judge allowed them to be enlarged on bail.
However, he underscored the grant of bail with a clear message that "this was to be an opportunity for reformation and not an opportunity to fasten their bond with a banned terrorist organisation."
"One cannot have recourse to violent methods to overawe a democratically elected government or legally formed governmental machinery, even though peoples are ... tempted to have recourse to such things", the Court added.
They two applicants were released on bail, upon each of them executing a bond of Rs 1 Lakh.
The NIA has appealed the grant of bail against the two, and the appeal is expected to come up for admission hearings in the High Court on Monday.
In the proceedings before the NIA Special Judge, Advocates Isac Sanjay and Tushar Nirmaly Sarathy represented Allan Shuaib and Thwaha Fasal
Read the Judgment: