Individual Associated To Organization Designated As Unlawful Under UAPA Can Be Prosecuted Under Said Act In Addition To Other Statutes: Delhi HC

The Delhi High Court upheld the order for denial of bail and dismissed the appeal of an accused booked under the Unlawful Activities (Prevention) Act (UAPA) for allegedly providing shelter to members of terrorist organizations.

The High Court held so which considering an appeal challenging the order passed by the Special Judge (NIA) dated Jan 07, 2023 in a case registered by the National Investigation Agency under Sections 120B, 121A, 122, and 123 of the Indian Penal Code (IPC), as well as under Sections 18, 18A, 18B, 20, 38, and 39 of the UAPA. The order in question pertained to the dismissal of the bail application filed on behalf of the appellant.

From perusal of the list of terrorist organizations included in the First Schedule of the UAPA Act, the Division Bench comprising of Justice Siddharth Mridul and Justice Anish Dayal found that certain “organizations are considered to be involved in terrorism activities that threaten the sovereignty and integrity of India and these organizations and the individuals associated with them are liable to be prosecuted under the UAPA Act. As per the case of the prosecution, it has come on record in the chargesheet that the appellant attempted to arrange shelter for two militants associated with Jaish-e-Mohammed (JeM), a banned terrorist organization listed in the First Schedule of the UAPA Act”.

The Bench further observed that “after due consideration of the provisions of the UAPA Act, along with an assessment of the material appended in the subject charge-sheet; the collective evidence; as well as surface analysis of its probative value, in our considered view prima facie there exist reasonable grounds to believe that the accusations against the appellant are true. Consequently, the conditions in Section 43D(5) of the UAPA Act stand satisfied”.

Advocate Kartik Murukutla appeared for the Appellant, whereas Advocate Gautam Narayan appeared for the Respondent.

As per the brief facts, the prosecution's case revolved around the registration of an FIR, following an intelligence received, regarding a larger conspiracy taking shape in the Kashmir valley. According to the prosecution, this conspiracy had dual dimensions, both in the physical realm and the digital domain, and was allegedly orchestrated by proscribed terrorist groups, including Lashkar-e-Taiba (LeT), Jaish-E-Mohammed (JeM), Hizb-ul-Mujahideen (HM), Al-Badr, and others. It was further claimed that these terrorist groups, in collaboration with their facilitators and leaders based in Pakistan, as well as their Over-Ground Workers within India, were actively involved in influencing and radicalizing vulnerable local youth. The prosecution alleged that this conspiracy was hatched following the revocation of Article 370, with the primary objective of reigniting acts of terrorism in Jammu and Kashmir and other parts of India. According to their case, the appellant played an active role in providing shelter to members of the aforementioned terrorist organizations and their associates within his residence, with the assistance of his acquaintances. Consequently, the appellant was arrested on October 20, 2021, and a chargesheet was filed against him and co-accused individuals.

After considering the submission, the Bench observed that at the stage of bail under the UAPA, it is a well-established practice that a comprehensive or in-depth examination of the evidence is not required. Instead, the court's role is to establish findings based on general probabilities regarding the accused's potential involvement in the alleged offense.

The Bench noted that upon the appellant's arrest, two mobile phones were confiscated from his possession, and an analysis report of the digital data extracted from these seized mobile phones, conducted by Cert-In, revealed the presence of images associated with deceased militants and terrorist organizations.

The Bench further took note of the appellant's disclosure statement, wherein the appellant affirmed that he had a previous association with the militant Rouf Dar. Additionally, he disclosed that he had aided militants Rouf Dar and Walid by arranging accommodation for them in his hometown.

The Bench emphasized that the UAPA mandates proactive measures against organizations that present a threat to national security. Once an organization is designated as unlawful under the UAPA, any individual associated with it can be prosecuted for offenses outlined within the Act, in addition to any relevant criminal statutes.

Therefore, placing reliance in case of Arup Bhuyan versus State of Assam and Anr. [2023 SCC OnLine SC 338], where the Supreme Court had expressed the view that mere membership in a banned organization constitutes an offense under the UAPA, the High Court dismissed the appeal.

Cause Title: Suhail Ahmad Thokar v. National Investigation Agency

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