Kerala High Court: A Division Bench of A. Hariprasad and N. Anil Kumar, JJ. dismissed the appeals filed by the appellants by invoking Section 21 (4) of the National Investigation Agency Act, 2008 (“NIA Act”) as they were accused under Sections 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (“UA(P) Act”).
On 01-11-2019, the appellants were restrained by Sub Inspector of Police for “suspiciously standing on a dark shop varandha”. Upon being searched, one of the appellants was found in possession of a shoulder bag which contained booklets and pamphlets/leaflets indicating their “association with Communist Party of India (Maoist), undisputedly a banned terrorist organisation figuring in the first schedule to the UA(P) Act”. Post this, the appellants were arrested and the “objectionable materials” were seized. The bail application filed by the appellants was dismissed by the Sessions Judge finding prima facie that there was material against the appellants to proceed with an investigation under Section 38 of the UA(P) Act.
Counsel for the appellants, K.S. Madhusoodanan and S. Rajeev, contended that the First Information Statement (FIS) did not state any reason for the arrest of the appellants. According to them, possession of certain readable materials ostensibly published by someone owing allegiance to Communist Party of India (Maoist) organisation, cannot by itself create any offence under the UA(P) Act. They argued that the 1st appellant was a law student and the 2nd appellant was a journalism student and that they should not be labelled as terrorists indulging in anti-national activities for reading some literature leaning towards left-wing. They stated that the arrest was illegal because there was no material on record to show that the Sub Inspector of Police was, in fact, an officer empowered by the designated authority under the UA(P) Act to effect an arrest.
Reliance was placed on the Supreme Court’s decision in in Arup Bhuyan v. State of Assam (2011) 3 SCC 377 and Indra Das v. State of Assam (2011) 3 SCC 380 to urge a proposition that being a member of a banned organisation does not make a person a criminal unless he resorts to or incites people to violence or create public disorder by violence or incitement to violence. However, the court rejected to peruse these two cases stating that there was no similarity in the facts and circumstances of the two cases.
High Court stated that on a plain reading of Section 20 of the UA(P) Act, it can be seen that punishment can be awarded only when it is proved that the accused is a member of a terrorist gang or terrorist organisation. At this stage of the investigation, it was too much to insist on proof to show that the appellants were in fact members of a banned organisation, as the activities of a banned organisation will be subterranean. Therefore, the Court held that the complicity of the appellants could be proved only after a thorough investigation.
Section 38 of the UAPA on the other hand, deals with the punishment of a person associated with a terrorist organisation with an intention to further its activities and thereby committing an offence relating to membership of a terrorist organisation. The Court held that the words “associated” and “professes to be associated” under this section are employed in a broad sense. Anybody indulging in such activities would do so clandestinely or surreptitiously. “Contextually, therefore, not only overt actions but covert actions may also at times satisfy the ingredients of the Section, provided they were done knowingly or consciously for the objectives mentioned in the Section”. But as the investigation was at its inceptive stage of the investigation, the court could not satisfy the ingredients of the offence.
The Court upheld the decision rendered by Sessions Judge to not grant bail to the appellants. They stated that they had considered the arguments advanced by the appellants that mere possession of such leaflets/pamphlets ipso facto will not be sufficient for branding an accused as members of a banned organisation. But, the nature of the materials cannot be lightly brushed aside as innocent possessions. According to the State Attorney, the materials recovered from the 1st accused included “details about the organisational set up of Communist Party of India (Maoist) and also their modes operandi in conducting meetings and disseminating Maoist ideology”. Finally, the Court held that the investigation on the case must continue and therefore, “release of the appellants at this stage of investigation may hamper or adversely affect the furtherance of the same”. [Thwaha Fasal v. State of Kerala, 2019 SCC OnLine Ker 4857, decided on 27-11-2019]