Madhya Pradesh High Court
Syed Mamoor Ali @ Mamoor Bhai vs Union Of India on 6 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:257
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
CRIMINAL APPEAL No. 5743 OF 2024
SYED MAMOOR ALI @ MAMOOR BHAI
Versus
UNION OF INDIA
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Appearance :
Shri Manish Datt – Senior Advocate with Shri Satyam Rai –
Advocate for the appellant.
Shri Deepesh Joshi – Advocate with Shri Qasim Ali – Advocate for
the respondent NIA.
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Heard on : 13/12/2024
Pronounced on : 06/01/2025
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J UDGMENT
Per: Justice Sushrut Arvind DharmadhikariThe instant Criminal Appeal under section 21(4) of the National
Investigation Agency Act, 2008 (hereinafter referred as Act 2008) has been
filed on behalf of the appellant against the order dated 12/04/2024 passed in
SC NIA No.02 of 2023; whereby the application filed by the appellant for
grant of bail, has been rejected.
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2. The appellant has been arrested on 26/05/2023 relating to FIR/Crime
No.RC-14/2023/NIA/DLI registered at Police Station NIA, Delhi,
regarding commission of offence punishable under Sections 120-B, 153-A,
153-B, 295-A of the Indian Penal Code (hereinafter referred as IPC) and
Sections 13, 17, 18, 20, 38, 39 and 40 of Unlawful Activities (Prevention)
Act, 1967 (hereinafter referred as UAPA).
3. Prosecution story in brief is that in compliance of the order of
Government of India, Ministry of Home Affairs, dated 24/05/2023, the
National Investigation Agency registered a case bearing No. RC-
14/2023/NIA/DLI dated 24/05/2023 under Sections 120-B, 295-A of the
IPC and Sections 16, 17, 18, 18(B), 20 of UAPA against present appellant
i.e. Syed Mamoor Ali, co-accused Adil Khan and other unknown persons.
The NIA took up the investigation wherein it was revealed that during
nationwide lockdown in the year 2020, the accused persons started gaining
knowledge about comparison of religion through watching the videos of
Zakir Naik, an Islamic Preacher, reading Quran and Hadeeth.
(3.1) Further, investigation revealed that co-accused Mohd. Adil Khan got
influenced by the thoughts of Zakir Naik and started gaining knowledge
about basics of geopolitics (learnt about Syria @ Sham, Israel, America,
Saudi Arabia, Khurasan etc.). He also expressed interest towards Jihad and
started corroborating Jihad with Quran. He developed radicalized bent of
mind and started believing that there must be Shariyat all over the world
and no one should follow the man-made laws. The NIA found that the
present appellant was also listening and watching Islamic lectures delivered
by Islamic orators such as Zakir Naik, Syed Faiz, Dr. Israr Ahmad etc. and
was also watching videos of Anwar-Al-Awlaki. He started searching about
Jihad and corroborated the same with Quran for developing Jihadis
ideology as he wanted to spread Sharia law all over the world.
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(3.2) The investigation also revealed that the present appellant started
giving Dawah to Hindus and started distribution of pamphlets related to
Islam. Further, during the investigation, the NIA also found that other co-
accused, namely, Shahid Khan and Kasif Khan were also involved in said
unlawful activities. All the accused persons were watching Islamic lectures
to provoke Jihad and implement Sharia law all over the world including
India. All the accused persons became close friends and started discussing
Quran and Hadeeth and Jihad too. They all started sharing radicalized
thoughts with each other. They had a common mind of establishing Sharia
law in India through violent means. They used to visit Falah Darain Masjid
for offering Namaz, where they used to discuss Jihad through violent means
and Khilafat based on Shariyat. They also prepared the pamphlets similar to
the flags of ISIS and Al- Qaeda. They affixed one of the samples of
pamphlets on the wall of nearby Ahle Hadees mosque in order to attract
likeminded people, whom they can influence towards ideology of ISIS. The
Investigation further shows that in the month of August, 2022, co-accused
Kasif Khan created a whatsapp group namely “Pics” and added Mohd. Adil
Khan, Shahid Khan and some other persons. After creating said group, co-
accused Mohd. Adil khan started sharing videos, audios, photos, related to
ISIS/Jihad/Shariyat in order to motivate the group members towards the
ideology of ISIS. They also started sharing derogatory posts on Hindu
deities. In the month of December, 2022, co-accused Kasif Khan added
present appellant – Syed Mamoor Ali @ Mamoor Bhai, who changed the
name of group as “Fisabillilah” and also changed the Display Picture of the
group, which was similar to the flag of ISIS with slight modifications. In
the said WhatsApp group, the accused persons started discussing Shariyat,
Khilafat and Jihad. In order to escape themselves from the radar of
Investigation Agency, they decided to use code names for ISIS such as “eye
S”, “eye ass”, “eye as”, “eye sis”, “eye see”, “Dhadiwale”, “Dawlah”,
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“1515”, “15”, “Mujahideen” and “Eye s fisabilillah”. They also decided
that present appellant would be the Ameer of the group.
(3.3) The investigation further revealed that co-accused Adil Khan came
in contact with one Faris Nazdi through social media, who provided
contents related to ISIS. It is further alleged that co-accused Adil Khan also
downloaded several contents related to ISIS. The said contents were also
seen by other co-accused persons in laptop of co-accused Shahid Khan.
Further, co-accused Adil Khan created a bot channel namely “Dawlah @
baqiyah_bot)” on Telegram. He used to upload links of the Dawlah bot in
his Instagram account named as “abdullahadawallah”. He also took backup
of said data on Mega application. Thereafter, the other co-accused persons
also created accounts on Social Media in order to fulfill their motive.
(3.4) The investigation further shows that the present appellant and other
co-accused persons conspired to attack Ordnance Factory, Jabalpur, to
procure the weapons in large quantity in furtherance of their terror activity.
They also decided to blast the Jabalpur Ordnance Factory, if they could not
succeed in capturing the Factory. The present appellant also suggested to
have three Mujahids behind each security personnel in order to capture the
Factory. They wanted to expand their violence to whole India. It is further
alleged that the present appellant gave responsibility of technical head to
co-accused Mohd. Adil Khan and preparation of explosive to co-accused
Mohd. Kasif Khan. In furtherance thereof, co-accused Kasif Khan shared a
link of one YouTube video to prepare highly inflamable explosive by using
daily used material. The accused persons did not believe in the concept of
Nationalism, Democracy, Constitution and Voting system and motivated
others too for doing so. They wanted to recruit like-minded people in large
number to strengthen their organization. They also decided to make
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monthly contribution for their cause and they also wanted to raise funds
through Bait-ul-mal. During the course of investigation, various
audios/videos/PDFs of ISIS publications as well as incriminating
handwriting diary, digital devices, literature, pamphlets, mobile phones
were seized from possession of the accused persons. The investigating
agency also procured CDR between the accused persons. The accused
persons got arrested by the investigating agency.
4. It is submitted by the learned Senior counsel for the appellant that the
appellant has falsely been implicated in the case. The prosecution case is
based on suspicion and indeed, there is nothing on record against the
present appellant. No offence, as alleged is made out against him as
necessary ingredients to constitute the alleged offence are completely
missing. The appellant has no criminal antecedents and if the appellant is
kept in jail, it will adversely affect his family and cause irreparable loss. It
is also submitted that the appellant is physically handicapped and unable to
perform such dangerous/difficult tasks. Mere exchange of religious beliefs
does not constitute any offence. The appellant is not creator of WhatsApp
group through which the alleged contents were shared. The material
collected by the investigating agency prima facie does not constitute any
offence against the present appellant. No weapons have been seized from
the possession of the present appellant. It is further submitted that the jail
authority is not providing therapy to the appellant for which the appellant
had preferred a writ petition before the High Court and inspite of direction
given by the High Court, the jail authority is not providing therapy. It is
further submitted that investigation is over and charge-sheet has been filed.
He has also submitted that while considering the bail application under
Section 43(D)(5) of UAPA, the court is duty bound to apply its mind to
examine the entire material available on record for the purpose of satisfying
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itself as to whether prima facie case is made out against the accused or not
? The period of custody and probability of conclusion of trial in near future
should be considered by the Court. In the present case, the learned trial
Court failed to consider the provisions of law in proper manner. Mere
association with terrorist organization is not sufficient to attract Section 38
of UAPA and mere support to a terrorist organization is not sufficient to
attract Section 39 of UAPA. The association and support have to be with an
intention and in furtherance of the activities of the terrorist organization. In
addition to above submissions, the learned Senior counsel for the appellant
has submitted that the appellant is a permanent resident of District Jabalpur
and there is no likelihood of his absconding or tampering with the
prosecution evidence. The appellant is ready to furnish adequate surety and
shall abide by all the directions and conditions which may be imposed by
the Court. In support of his contentions, learned Senior counsel for the
appellant placed reliance on the following citations:- (1) Sudesh Kedia Vs.
Union of India, 2021 (4) SCC 704 (2) Sheikh Javed Iqbal @ Asfhaq
Ansari@Javed Ansari Vs. State of Uttar Pradesh, 2024(8) SCC 293 (3)
Jalaluddin Khan Vs. Union of India, 2024 SCC OnLine SC 1945 and
(4) Tawaha Fasal Vs. Union of India, (2022) 14 SCC 766. On these
grounds, prayer is made to allow the appeal and enlarge the appellant on
bail.
5. Per contra, learned counsel appearing for the respondent has
vehemently opposed the appeal. He submitted that the offence committed
by the appellant is serious in nature and against the integrity and peace of
country. The prosecution has collected incriminating material viz. audio
clips, video clips, objectionable literatures, pamphlets, handwritten
documents from the possession of all the accused persons including present
appellant which shows his involvement in the alleged crime. He has further
submitted that Section 43 D(5) of UAPA imposes restrictions upon the
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Court in granting bail to accused person. The statements of witnesses
recorded under Sections 161 and 164 of Cr.P.C., clearly establishes the
complicity of present appellant in the alleged crime. He further submitted
that it is not necessary that every person who are involved in terrorist
activities must have criminal antecedents. The appellant was fully aware
about the banned terrorist organization ISIS and its activities in India and
worldwide. As per Section 19 of NIA Act, 2008, the trial will be conducted
having precedence over other matters and therefore, there is no delay in
trial proceedings. If the appellant is released on bail, there is every
possibility of his fleeing away. In support of his contentions, learned
counsel for the respondent has placed reliance on the following decisions
(1) Gurwinder Singh vs. State of Punjab and another, reported in
(2024) 5 SCC 403 (2) Jayanta Kumar Ghosh Vs. National Investigation
Agency, 2013 (1) Gauhati Law Reports 374 (3) Golan Daulagupu Vs.
National Investigation Agency, 2013 (2) Gauhati Law Reports 791.
6. We have heard the submissions advanced by learned counsel for the
parties and perused the charge-sheet along with other documents available
on record and also the case laws referred by the counsel for the parties.
7. Before examining the facts of the case, we think it appropriate to
reiterate the settled legal position laid down by Hon’ble Supreme Court in
the case of Zahoor Ahmad Shah Watali, reported in (2019) 5 SCC 1, for
deciding an application for bail, which reads that:-.
Before we proceed to analyse the rival submissions, it is apposite to
reiterate the settled legal position about matters to be considered for
deciding an application for bail, to wit,
(i) whether there is any prima facie or reasonable ground to believe
that the accused had committed the offence;
(ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
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(v) character, behaviour, means, position and standing of the
accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being tampered with;
and
(viii) danger, of course, of justice being thwarted by grant of bail.
8. Now, we come to the provisions relating to bail under the UAPA i.e.
sub-section 5 of Section 43D, same reads as under:
“43-D. Modified application of certain provisions of the Code
“……………………………………………………………..
(5) Notwithstanding anything contained in the Code, no person
accused of an offence punishable under Chapters IV and VI of this
Act shall, if in custody, be released on bail or on his own bond unless
the Public Prosecutor has been given an opportunity of being heard on
the application for such release:
Provided that such accused person shall not be released on bail or
on his own bond if the Court, on a perusal of the case diary or the
report made under Section 173 of the Code is of the opinion that there
are reasonable grounds for believing that the accusation against such
person is prima facie true.
(6) The restrictions on granting of bail specified in Sub-Section (5) is
in addition to the restrictions under the Code or any other law for the
time being in force on granting of bail.
(7) Notwithstanding anything contained in Sub-Sections (5) and (6),
no bail shall be granted to a person accused of an offence punishable
under this Act, if he is not an Indian citizen and has entered the
country unauthorizedly or illegally except in very exceptional
circumstances and for reasons to be recorded in writing.”
9. In the case of Zahoor Ahmad Shah Watali (supra), the Hon’ble
Supreme Court has laid down the principle for considering the bail
application under UAPA, the relevant para is quoted as under:
“17. By virtue of the proviso to sub-section (5), it is the duty of the
Court to be satisfied that there are reasonable grounds for believing that
the accusation against the accused is prima facie true or otherwise. Our
attention was invited to the decisions of this Court, which has had anSignature Not Verified
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9occasion to deal with similar special provisions in TADA and
MCOCA. The principle underlying those decisions may have some
bearing while considering the prayer for bail in relation to offences
under the 1967 Act as well. Notably, under the special enactments such
as TADA, MCOCA and the Narcotic Drugs and Psychotropic
Substances Act, 1985, the Court is required to record its opinion that
there are reasonable grounds for believing that the accused is “not
guilty” of the alleged offence. There is degree of difference between
the satisfaction to be recorded by the Court that there are reasonable
grounds for believing that the accused is “not guilty” of such offence
and the satisfaction to be recorded for the purposes of the 1967 Act that
there are reasonable grounds for believing that the accusation against
such person is “prima facie” true. By its very nature, the expression
“prima facie true” would mean that the materials/evidence collated by
the Investigating Agency in reference to the accusation against the
concerned accused in the first information report, must prevail until
contradicted and overcome or disproved by other evidence, and on the
face of it, shows the complicity of such accused in the commission of
the stated offence. It must be good and sufficient on its face to establish
a given fact or the chain of facts constituting the stated offence, unless
rebutted or contradicted. In one sense, the degree of satisfaction is
lighter when the Court has to opine that the accusation is “prima facie
true”, as compared to the opinion of accused “not guilty” of such
offence as required under the other special enactments. In any case, the
degree of satisfaction to be recorded by the Court for opining that there
are reasonable grounds for believing that the accusation against the
accused is prima facie true, is lighter than the degree of satisfaction to
be recorded for considering a discharge application or framing of
charges in relation to offences under the 1967 Act…….”
10. Thereafter, in the case of K.A.Najeeb Vs. Union of India, reported
in (2021) 3 SCC 713, the Hon’ble Supreme Court distinguishing the law
laid down in the case of Zahoor Ahmad Shah Watali (supra) held that
Courts are expected to appreciate legislative policy against grant of bail but
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rigour of such provisions will melt down where there is no likelihood of
trial being completed within a reasonable time and period of incarceration
already undergone has exceeded a substantial part of prescribed sentence.
Presence of statutory restrictions like Section 43D(5) of UAPA per se do
not oust ability of Constitutional Courts to grant bail on grounds of
violation of Part III of Constitution.
11. After considering the decisions passed in the cases of Zahoor
Ahmad Shah Watali (supra) and K.A.Najeeb (supra), the Hon’ble
Supreme Court in the case of Thwaha Fasal (supra) dealing with the
scope of Section 43D(5) of UAPA, held that if Court, after examining
material on record, is satisfied that there are no reasonable grounds for
believing that accusation against accused is prima facie true, then
accused is entitled for bail. The Court while examining the issue of prima
facie case as required by sub-section (5) of Section 43-D is neither expected
to hold a mini trial nor is supposed to examine the merits and demerits of
the evidence. If a charge-sheet is already filed, the Court has to examine the
material forming a part of charge-sheet for deciding the issue whether there
are reasonable grounds for believing that the accusation against such a
person is prima facie true or not. While doing so, the Court has to take the
material available in the charge-sheet as it is.
Mere association with a terrorist organization as a member or otherwise
will not be sufficient to attract offence under Section 38 of UAPA unless
association is with an intention to further its activities.
Stringent restrictions imposed by sub-section (5) of Section 43D of UAPA,
do not negate the powers of Constitutional Court to grant bail keeping in
mind violation of Part III of the Constitution.
12. The learned counsel for the NIA relied upon a recent decision of
Hon’ble Supreme Court passed in the case of Gurwinder Singh (supra)
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wherein the Hon’ble Supreme Court has considered its earlier decisions
including Zahoor Ahmad Shah Watali (supra) as well as K.A.Najeeb
(supra) which deal with interpretation of Section 43D(5). In the said case,
the Hon’ble Supreme Court dismissed the appeal challenging the dismissal
of the bail application by the trial Court and that was upheld by the High
Court. Further, the Hon’ble Supreme Court explained in detail the
principles governing consideration of bail application in case under the
UAPA. Paragraph 20 to 23 of the said decision reads thus:
“20. In this background, the test for rejection of bail is quite plain.
Bail must be rejected as a ‘rule’, if after hearing the public prosecutor
and after perusing the final report or Case Diary, the Court arrives at a
conclusion that there are reasonable grounds for believing that the
accusations are prima facie true. It is only if the test for rejection of
bail is not satisfied – that the Courts would proceed to decide the bail
application in accordance with the ‘tripod test’ (flight risk, influencing
witnesses, tampering with evidence). This position is made clear by
Sub-section (6) of Section 43D, which lays down that the restrictions,
on granting of bail specified in Sub-section (5), are in addition to the
restrictions under the Code of Criminal Procedure or any other law for
the time being in force on grant of bail. 21. On a textual reading of
Section 43 D(5) UAP Act, the inquiry that a bail court must undertake
while deciding bail applications under the UAP Act can be
summarised in the form of a twin-prong test :
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged ‘accusations’ make out an
offence under Chapter IV or VI of the UAP Act
1.2 Such examination should be limited to case diary and final report
submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light of the
general principles relating to grant of bail under Section 439 CrPC
(‘tripod test’)?
On a consideration of various factors such as nature of offence, length
of punishment (if convicted), age, character, status of accused etc., the
Courts must ask itself :
2.1 Whether the accused is a flight risk?
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2.2. Whether there is apprehension of the accused tampering with the
evidence?
2.3 Whether there is apprehension of accused influencing witnesses?
22. The question of entering the ‘second test’of the inquiry will not
arise if the ‘first test’is satisfied. And merely because the first test is
satisfied, that does not mean however that the accused is
automatically entitled to bail. The accused will have to show that he
successfully passes the ‘tripod test’.
23. In the previous section, based on a textual reading, we have
discussed the broad inquiry which Courts seized of bail applications
under Section 43D(5) UAP Act r/w Section 439 Cr.P.C. must indulge
in. Setting out the framework of the law seems rather easy, yet the
application of it, presents its own complexities. For greater clarity in
the application of the test set out above, it would be helpful to seek
guidance from binding precedents. In this regard, we need to look no
further than Watali’s case which has laid down elaborate guidelines
on the approach that Courts must partake in, in their application of the
bail limitations under the UAP Act. On a perusal of paragraphs 23 to
29 and 32, the following 8-point propositions emerge and they are
summarised as follows:
(i) Meaning of ‘Prima facie true’ [Para 23]: On the face of it, the
materials must show the complicity of the accused in commission of
the offence. The materials/evidence must be good and sufficient to
establish a given fact or chain of facts constituting the stated offence,
unless rebutted or contradicted by other evidence.
(ii) Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet
and Post-Charges – Compared [Para 23]: Once charges are framed,
it would be safe to assume that a very strong suspicion was founded
upon the materials before the Court, which prompted the Court to
form a presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged against the accused, to
justify the framing of charge. In that situation, the accused may have
to undertake an arduous task to satisfy the Court that despite the
framing of charge, the materials presented along with the charge-sheet
(report under Section 173 Cr.P.C.) do not make out reasonable
grounds for believing that the accusation against him is prima facie
true. Similar opinion is required to be formed by the Court whilst
considering the prayer for bail, made after filing of the first report
made under Section 173 of the Code, as in the present case.
(iii) Reasoning, necessary but no detailed evaluation of
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13stage-of giving reasons for grant or non-grant of bail-is markedly
different from discussing merits or demerits of the evidence. The
elaborate examination or dissection of the evidence is not required to
be done at this stage.
(iv) Record a finding on broad probabilities, not based on proof
beyond doubt [Para 24]: “The Court is merely expected to record a
finding on the basis of broad probabilities regarding the involvement
of the accused in the commission of the stated offence or otherwise.”
(v) Duration of the limitation under Section 43D(5) [Para 26]: The
special provision, Section 43-D of the 1967 Act, applies right from the
stage of registration of FIR for the offences under Chapters IV and VI
of the 1967 Act until the conclusion of the trial thereof.
(vi) Material on record must be analysed as a ‘whole’ no
piecemeal analysis [Para 27]: The totality of the material gathered by
the investigating agency and presented along with the report and
including the case diary, is required to be reckoned and not by
analysing individual pieces of evidence or circumstance.
(vii) Contents of documents to be presumed as true [Para 27]: The
Court must look at the contents of the document and take such
document into account as it is.
(viii) Admissibility of documents relied upon by Prosecution
cannot be questioned [Para 27]: The materials/evidence collected by
the investigation agency in support of the accusation against the
accused in the first information report must prevail until contradicted
and overcome or disproved by other evidence……In any case, the
question of discarding the document at this stage, on the ground of
being inadmissible in evidence, is not permissible.”
13. Thereafter, the law laid down in the case of Gurwinder Singh
(Supra), has been distinguished by the Hon’ble Supreme Court in the case
of Sheikh Javed Iqbal (supra) holding that when trial gets prolonged, it is
not open to prosecution to oppose bail of accused-under trial on the ground
that charges are very serious. Bail cannot be denied only on the ground that
charges are very serious though there is no end in sight for trial to conclude.
The Constitutional Court cannot be restrained from granting bail to accused
on account of restrictive statutory provisions in a penal statute if it finds
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that right of accused-under trial under Article 21 of Constitution of India
has been infringed. Further, Section 43D(5) of UAPA does not oust ability
of Constitutional Courts to grant bail on the ground of violation of Part III
of the Constitution.
14. Thereafter, the Hon’ble Supreme Court again reiterated the principle
in the case of Jalaluddin Khan (supra) wherein it is held that the Court
has to examine the material forming part of the charge-sheet to decide
whether there are reasonable grounds for believing that the accusations
against the person applying for bail are prima facie true. While doing so,
the Court must take the charge-sheet as it is . When a case is made out for
grant of bail, Courts should not have any hesitation in granting bail. If
Courts start denying bail in deserving cases, it will be a violation of rights
guaranteed under Article 21 of the Constitution.
15. Recently, The Hon’ble Supreme Court referring the verdict given in
Ahmad Shah Watali (supra), K.A.Najeeb (supra), Thwaha Fasal
(supra) and Jalaluddin Khan (supra), passed the judgment in the case of
Athar Parwez Vs. Union of India, in Criminal Appeal No. 5387 of 2024
[Arising Out Of Slp (Crl) No. 9209 of 2024]
decided On 17-12-2024, and again reiterated and clarified the principle
regarding deciding the bail application under UAPA holding that the right
to a speedy trial under Article 21 of the Constitution is paramount, and
prolonged detention without charges is unconstitutional. Giving precedence
to the protection of Fundamental Rights and emphasizing upon their
primacy over the statutory provisions in case of delayed trial, in the above
judgments, the Hon’ble Supreme Court had even gone to the extent of
asserting that the seriousness of the crime for which the accused is facing
the trial would not be material as an accused is presumed to be innocent
until proven guilty.
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16. In the light of above referred judgments, we sum-up the legal
position by saying that while considering the bail application under UAPA,
it is the duty of the Court to be satisfied that there are reasonable grounds
for believing that the accusation against the accused is prima facie true or
otherwise. By its very nature, the expression “prima facie true” would
mean that the material/evidence collected by the investigating agency in
order to establish the accusation against the accused concerned in the first
information report, must prevail until contradicted or disproved by other
evidence, and on the face of it, shows the complicity of such accused in the
commission of the alleged offence. It must be sufficient on its face to
establish the given facts. The restriction on the powers of the Court to grant
bail is less stringent and if the Court, having regard to the material brought
before it, is satisfied that in all probability, the accused may not be
ultimately convicted, an order granting bail may be passed. What would
further be necessary on the part of the Court is to see the culpability of the
accused and his involvement in the commission of an organized crime
either directly or indirectly. The Court at the time of considering the
application for grant of bail shall consider the question from the angle as to
whether he was possessed of the requisite mens rea. The Court must
consider the nature and manner in which the accused is alleged to have
committed the offence. Further, for the purpose of considering an
application for grant of bail, although detailed reasons are not necessary to
be assigned, but the order granting bail must demonstrate application of
mind at least in serious cases as to why the applicant has been granted or
denied the privilege of bail. The duty of the Court at this stage is not to
weigh the evidence meticulously but to arrive at a finding on the basis of
broad probabilities. While deciding the bail, the Court should not conduct a
mini-trial to determine the admissibility of certain evidence, which
exceeded the limited scope of a bail petition. This not only was beyond the
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statutory mandate of a prima facie assessment under Section 43-D(5)
UAPA, but it was premature and possibly would have prejudiced the trial
itself. The findings recorded by the Court while granting or refusing bail
undoubtedly would be tentative in nature, which may not have any bearing
on the merits of the case and the trial Court would, thus, be free to decide
the case on the basis of evidence adduced at the trial, without being
prejudiced thereby in any manner.
17. Further, in the referred judgments, the Hon’ble Apex Court has also
taken care of the liberty guaranteed by Part III of the Constitution of India
which covers not only due procedure and fairness but also access to justice
and a speedy trial. The Hon’ble Supreme Court has time and again
reiterated that under-trials cannot indefinitely be detained in pending trial
even in UAPA. Once it is obvious that a timely trial would not be possible
and the accused has suffered incarceration for a significant period of time,
the Courts would ordinarily be obligated to enlarge them on bail. The
Hon’ble Supreme Court clarified that the presence of statutory restrictions
like Section 43-D(5) of the UAPA per-se do not oust the ability of the
constitutional Courts to grant bail on grounds of violation of Part III of the
Constitution. Whereas, at commencement of proceedings, the Courts are
expected to appreciate the legislative policy against grant of bail but the
rigour of such provisions will melt down where there is no likelihood of
trial being completed within a reasonable time and the period of
incarceration already undergone has exceeded a substantial part of the
prescribed sentence.
18. If the above principal is considered more precisely, there are two
conditions for granting bail to accused under trial in UAPA; first, if the
Court is satisfied that the entire material collected by the investigation
agency do not constitute prima facie case against the accused person and
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investigation agency has failed to show as to whether there are reasonable
grounds for believing that the accusation against the accused is prima facie
true, and secondly, a timely trial would not be possible and the accused has
suffered incarceration for a significant period for a substantial part of
prescribed sentence which amounts to violation of his Fundamental Rights.
19. Now adverting to the facts of the case at hand, we are conscious of
the fact that the allegations levelled against the appellant are grave and a
serious threat to societal harmony. On perusal of charge-sheet, following
allegations have been made against the present appellant –
“(I) He was associated with banned terrorist organization, Islamic
State of Iraq and Syria (ISIS) alongwith other co-accused persons.
(II) The present appellant was in possession of several
incriminating literatures, pamphlets containing a flag similar to the flag
of ISIS.
(III) The present appellant discussed Shariyah, Jihad, Khilafat and
ISIS along with other co-accused persons. They also planned to
disseminate the ideology of ISIS through Dawah programs and started
organizing Dars in Falah Darain Masjid and started radicalizing the
persons who came close to them to recruit them in ISIS.
(IV) Present appellant took initiative in offering Dawah (invitation
to religious discussion) to people in Penchkari Masjid to spot the
radicalized persons to take them into ISIS.
(V) Present appellant was the person who changed the name of
WhatsApp group from “Pics” to “Fisabilillah” (“for the sake of Allah”
or “in the way Allah”) and changed the Display Picture of the group
which was similar to the black flag of ISIS and started discussing
Shariyat, Khilafat and Jihad whereupon.
(VI) The present appellant was the Ameer (ruler or commander) of
the group.
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(VII) Present appellant along with other co-accused persons
conspired to attack Ordnance Factory, Jabalpur, to procure weapons in
large quantity for furtherance of the activities of ISIS.
(VIII) Present appellant was the person who suggested to have 03
Mujahids behind each security personnel in order to capture the factory.
(IX) The present appellant did not have belief in the concepts of
Nationalism, Democracy, Principles of Constitution and voting system.
(X) The present appellant was using the Instagram account namely
“fisabilillah_hizbullah” and he used to post various incriminating
photos against nationalism. He was constantly searching about ISIS,
Jihad, Taliban, Osama Bin Laden, Suicide Bombing etc.”
20. In order to strengthen their case, the NIA got analysed the phone of
present appellant wherein they found one magazine/literature namely
“Voice of Khurasan” which contains motivational articles for Jihad,
martyrdom, propagating ideology of ISIS etc. Another literature related to
Dawah to Hindus was also found in the mobile of present appellant. Apart
from these, images relating to modified flags of ISIS, photos of Anwar Al
Awlaki, Abu Duzana were also recovered from his mobile phone. He used
an application namely “Sherddit” to delete the data from his phone
regularly. Digital analysis further revealed that present appellant and co-
accused Mohd. Adil Khan were discussing about collection of funds for
their Tanzeem, suicide bombing, martyrdom, Istishhadi etc.
21. Further, the investigation agency recorded the statements of various
witnesses u/s 161 & 164 of Cr.P.C. denoting them as ‘A’ to ‘H’, which
indicate entire conspiracy and activities of the present appellant and other
accused persons in commission of the alleged crime. The witnesses also
stated that the present appellant and other co-accused persons decided to
make explosives from household material and subsequently present
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appellant gave tasks to other co-accused to prepare the same. They wanted
to attack Ordnance Factory, Jabalpur. The NIA also procured the CDR
report of all the accused persons to show interconnection between them.
22. In view of the above discussion, it is clear that there is sufficient
material available in the charge-sheet showing that the appellant has
actively participated in and has committed unlawful activities as defined in
the UAPA. There is specific material to show that the appellant advocated,
abetted, or incited commission of many unlawful activities. A terrorist act is
defined in Section 15(1) of UAPA, which inter-alia says that whoever does
any act with intent to threaten the unity, integrity, security, economic
security or sovereignty of India or with intent to strike terror or likely to
strike terror in the people or any section of the people in India or any
foreign country by using bombs, dynamite or other explosive substances or
inflammable substances or firearms or other lethal weapons or poisonous or
noxious gases or other chemical or by any other substances (whether
biological radioactive, nuclear or otherwise) of a hazardous nature or by
any other means of whatever nature to cause or likely to cause (i) death of,
or injuries to, any person or persons, or (ii) loss of, or damage to, or
destruction of property, or (iii) disruption of any supplies or services
essential to the life of the community in India or in any foreign country; or
(iv) damage or destruction of any property in India or in a foreign country
used or intended to be used for the defence of India or in connection with
any other purposes of the Government of India, any State Government or
any of their agencies, commits a terrorist act. The material collected by the
NIA show that the present appellant was the active member of conspiracy
by which, the accused persons were going to attack upon Ordnance Factory,
Jabalpur, which is an entity of defence. We find sufficient material to show
that there was conspiracy to commit a terrorist act to which the appellant
was a party. The NIA produced sufficient material on record to show that
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the appellant was involved in the alleged terrorist acts and other preparatory
activities. The accused persons were not only supporting the activities of
terrorist organization but also they wanted to stand their own organization
with the intention to ruin the Constitution of India.
23. The learned senior counsel for the appellant has also raised the
ground of appellant being physically handicapped and thus unable to carry
out such a dangerous act. We would say that the terrorism based upon
religion arises from hateful thoughts towards the other religions which
comes from mind and is spread by mind; the need of other physical
assistance is secondary. This Court cannot express undue leniency to a
person who is facing serious charge of terrorism and unlawful activities.
The trial is also set at full motion and there is every possibility of trial being
completed in its due course. Therefore, considering the overall facts, at this
stage, we are not inclined to grant bail to the appellant.
24. Accordingly, the instant Criminal Appeal is hereby dismissed. The
order passed by the learned trial Judge, dated 12/04/2024 in SC NIA No. 02
of 2023 is hereby affirmed.
25. However, we make it clear that the findings recorded in this
judgment are only for considering the prayer for bail and the learned trial
Court may proceed in the case without being prejudiced from any finding
given by this Court.
(SUSHRUT ARVIND DHARMADHIKARI) (ANURADHA SHUKLA)
JUDGE JUDGE
skt
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