Evidence Presented By NIA Not Sufficient To Prima Facie Prove Terrorist Act Under UAPA: Bombay HC Grants Bail To Gautam Navlakha

The Bombay High Court granted bail to Gautam Navlakha, emphasizing the inadequacy of the evidence presented by the National Investigative Agency to establish a prima facie under the Unlawful Activities (Prevention) Act, 1967 (UAPA).

The Court emphasized that all documents or literature recovered from Gautam Navlakha were hearsay evidence with weak probative value. Furthermore, the Court stated that, at most, the Appellant could be recognized as a member of CPI (M), invoking Sections 13 and 38 of the UAPA.

The Bench comprising Justice A. S. Gadkari and Justice Shivkumar Dige observed, “In view of the above discussion, we are of the prima facie opinion that on the basis of the material placed before us by the NIA, it cannot be said that there are reasonable grounds for believing that the accusation against the Appellant is prima facie true to attract Sections 16, 18, 20 and 39 of UAPA”.

Advocate Yug Mohit Chaudhry appeared for the Appellant, Additional Solicitor General Devang Vyas appeared for the National Investigating Agency and Public Prosecutor A.S. Pai appeared for the Respondent.

The case involves the Bhima Koregaon violence, with charges stemming from the 'Elgaar Parishad' event on December 31, 2017, commemorating the 200th anniversary of the Bhima Koregaon battle, which led to violence on January 1, 2018.

The Appellant, the Eleventh Accused, appealed to the High Court under Section 21(4) of the National Investigation Agency Act, 2008 (NIA Act), challenging the Special Court's order. The order rejected the Bail Application in a case registered under Sections 120-B, 115, 121, 121-A, 124-A, 505(1)(b), and Section 34 of the Indian Penal Code, 1860 (IPC) and Sections 13, 16, 18, 20, 38, and 39 of the UAPA, alleging Appellant's involvement based on speeches and performances at the event.

The Bench noted that the analysis of evidence becomes inevitable due to the restrictive provisions of Section 43-D of the UAPA. The Court reiterated that avoiding an elaborate discussion of evidence at the bail stage to safeguard the parties' rights during the trial. The Court observed that it must consider the material against the Appellant to form an opinion that there are reasonable grounds for believing the accusation is prima facie true.

The Court emphasized the need to consider the material against the Appellant to form an opinion on whether there are reasonable grounds for believing the accusation is prima facie true. The material included documents and communications seized from electronic devices, statements of witnesses, and references to the Appellant in party-related activities. The Court reviewed specific documents, such as letters, agendas, and videos, along with the statements of witnesses. The Bench noted the importance of establishing the identity of the Appellant in certain documents and reiterated that the mere possession of literature does not necessarily constitute offences under the UAPA.

Furthermore, the Court observed that documents mentioning the Appellant but not recovered from him have weak probative value. These documents, considered hearsay evidence, are recovered from the co-accused, and their content is insufficient to establish the Appellant's actual involvement in any terrorist act or conspiracy. The Court held that there is no material to infer a conspiracy or offence under Chapter IV of the UAPA.

Additionally, the Court noted that Sections 15, 18, or 20 of the UAPA cannot be prima facie applied to the Appellant at this stage. Overall, the Court held that the incriminating material does not prima facie lead to the inference that the Appellant committed a terrorist act under Section 15 of the UAPA.

The Bench observed that Section 13 of the UAPA carries a maximum punishment of 7 years, and Section 38 provides for a maximum punishment of imprisonment not exceeding 10 years. In light of the discussion, the Court expresses a prima facie opinion that, based on the material presented by the NIA, there are no reasonable grounds to believe that the accusations against the Appellant are prima facie true under Sections 16, 18, 20, and 39 of the UAPA.

The Court held that the Appellant is entitled to parity with co-accused individuals, including Arun Ferreira, Vernon Gonsalves, Anand Teltumbde, and Mahesh Raut, who have been granted bail either by the Supreme or High Court.

Accordingly, the Court allowed the Petition and set aside the impugned order.

Cause Title: Gautam P. Navlakha v National Investigating Agency (2023:BHC-AS:38364-DB)

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