No evidence against Vernon Gonsalves, Arun Ferreira; mere possession of violent literature not terrorist Act under UAPA: Supreme Court

Mere possession of literature through which violent acts may be propagated will not fall within the scope of 'terrorist act' under Section 15 of the Unlawful Activities (Prevention) Act (UAPA), the Supreme Court said while granting bail to Bhima Koregaon violence accused Vernon Gonsalves and Arun Ferreira on Friday [Vernon v. State of Maharashtra]..Significantly, the Bench of Justices Aniruddha Bose and Sudhanshu Dhulia also noted that there was no evidence of Gonsalves and Ferreira committing any terrorist act that would require the Court to invoke the stringent provisions against grant of bail under Section 43D(5) of UAPA."There has been no credible evidence against the appellants of commission of any terrorist act or enter into conspiracy to do so to invoke the provisions of Section 43D (5) of the 1967 Act," the judgment said..The Court went on to hold that there is no material which prima facie establishes that they had indulged in activities which would constitute overawing any public functionary by means of criminal force."In none of the materials which have been referred to by the prosecution, the acts specified to in sub-clause (a) of Section 15(1) of the 1967 Act can be attributed to the appellants. Nor there is any allegation against them which would attract subclause (c) of Section 15(1) of the said statute. As regards the acts specified in Section 15(1) (b) thereof, some of the literature alleged to have been recovered from the appellants, by themselves give hint of propagation of such activities. But there is nothing against the appellants to prima facie establish that they had indulged in the activities which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts by the appellants to do so.".Pertinently, the Court said that prima facie, there are no reasonable grounds for believing that the accusation against the appellants of committing or conspiring to commit a terrorist act was true."The witness statements do not refer to any terrorist act alleged to have been committed by the appellants. The copies of the letters in which the appellants or any one of them have been referred, record only third-party response or reaction of the appellants’ activities contained in communications among different individuals. These have not been recovered from the appellants. Hence, these communications or content have weak probative value or quality," the Court said..Activists Vernon Gonsalves and Arun Ferreira, along with 14 others, stand accused by the National Investigation Agency (NIA) of being responsible for the violence that erupted at the Bhima Koregaon war memorial in Pune in 2017. According to Pune Police and the NIA, the activists delivered "inflammatory speeches" which triggered clashes between the Maratha and Dalit groups at an event to commemorate the two hundredth anniversary of the Battle of Koregaon-Bhima. Eight accused persons including Gonsalves and Ferreira had been refused bail by the Bombay High Court on December 1, 2021, while another co-accused, Sudha Bharadwaj, was granted bail.In that order, the High Court had distinguished Bharadwaj's plea from those of the other eight and noted that her application for default bail was pending while an application was made by the Pune Police seeking an extension of time to file the chargesheet.Those who were denied bail once again petitioned the High Court contending that there was an error in the December 2021 judgment and consequently, prayed that they be granted bail.However, on May 4, 2022, the High Court rejected that plea too, stating that there was no factual error in the December 2021 judgment as claimed.This led to the present appeal before the top court..The Supreme Court in its judgment noted that though the investigating agencies recovered electronic devices like mobile phones, tablets, pen drives and ancillary items from the accused, no evidence has been cited from these devices which would implicate them in terrorist acts and other offences. .As regards the statements and documents recovered, the Court said that these were from co-accused and mere possession of the same would not constitute an offence."What we must be conscious of, while dealing with prima facie worth of these statements and documents is that none of them had been seized or recovered from the appellants but these recoveries are alleged to have been made from the co-accused. None of these literatures has been specifically proscribed so as to constitute an offence, just by keeping them," reads the judgment..The Bench also clarified that when statutes like UAPA have stringent provisions, the duty of the Court would be more onerous. "Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act," the top court observed. .Specifically regarding the letters through which Gonsalves and Ferreira were implicated by NIA, the Court said that the contents of the same are hearsay."In the case of the appellants, contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused."The Court further noted that the activities of the accused cited by NIA were in the nature of ideological propagation and allegations of recruitment. However, no evidence of any of the persons alleged to have been recruited or to have joined the “struggle” inspired by the accused has been brought before the Court, the judges said."Thus, we are unable to accept NIA’s contention that the appellants have committed the offence relating to support given to a terrorist organisation. The second set of materials include the witness statements. There also no covert or overt act of terrorism has been attributed to the appellants by the three witnesses.".Finally, the Court noted that there was no credible evidence that the duo committed any terrorist act to deny them bail under the UAPA."We have also observed earlier that mere possession of the literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of the 1967 Act," the Bench underscored..Bhima Koregaon violence: Supreme Court grants bail to Vernon Gonsalves, Arun Ferreira.[Read Judgment]