The Delhi high court on Monday granted bail to an alleged Islamic State of Iraq and Syria supporter in a case under the anti-terror law Unlawful Activities (Prevention) Act, saying his "fascination" with the banned terrorist organisation cannot be dubbed as his association with it.
A bench headed by Justice Suresh Kumar Kait stated that 30-year-old Ammar Abdul Rahiman was, at best, a "highly radicalised person" who believed in ISIS ideology and was merely downloading and storing certain allegedly objectionable contents on his mobile phone but there was nothing to indicate that he made any endeavour to further disseminate these.
Any curious mind, the court observed, can access and download such content from the internet, which, by itself, is not a crime.
"Merely because the mobile device of the appellant was found carrying incriminating material including photographs of terrorist Osama bin Laden, Jihad Promotion, ISIS flags, etc. and he was also accessing lectures of hard-liner/Muslim preachers would not be enough to brand him as a member of such terrorist organization, much less his being acting in furtherance of its cause," the bench, also comprising Justice Manoj Jain, said.
"Such type of incriminating material, in today's electronic era, is freely available on World Wide Web (www) and mere accessing the same and even downloading the same would not be sufficient to hold that he had associated himself with ISIS. Any curious mind can access and even download such content. That act by itself, to us, appears to be no crime," added the court while allowing Rahiman's appeal against a trial court order refusing to release him on bail.
The court held that being in possession of incriminating material, in hard form or soft form, would not be sufficient to hold that such possession was with the intention to further terrorist activities as "there has to be something more than that".
"At best, the appellant was highly radicalized and had downloaded pro-ISIS material and was accessing the sermons of Muslim hard-liner but that would not be enough to attract Section 38 (offence relating to membership of a terrorist organisation) and 39 (Offence relating to support given to a terrorist organisation) of UAPA," the court stated.
The National Investigation Agency alleged that the appellant, arrested in August 2021, entered into criminal conspiracy with ISIS members for undertaking 'Hijrah' to Jammu and Kashmir and to carry out the activities of ISIS in India.
It was stated the appellant followed pro-ISIS Instagram account and photographs of global terrorist Osama bin Laden, Jihad promotion, ISIS flags etc. were also found on his digital devices.
In the 46-page judgement, the court observed the data which was retrieved from the electronic device/mobile of the appellant does not advance the case of prosecution and the invocation of Section 38 and 39 of the Unlawful Activities (Prevention) Act seemed "erroneous and misplaced" in the present case.
It noted that the trial court has directed the appellant to face trial for offences of conspiracy under the Indian Penal Code read with Section 2(o) (unlawful activity) and sections 13 (punishment for unlawful activities), 38 and 39 of UAPA but has prima facie found that he was either perpetrator of any terrorist act or was conspiring to commit the same.
The court stated that downloading certain software like MobileSafari or Telegram would also "not mean anything" as they are available in public domain and no adverse inference can be drawn and it was imperative for the prosecution to have established the ingredient of "mens rea" i.e. acting with intention to further the activities of such terrorist organization.
The court further observed that the Supreme Court, while dealing with the Bhima Koregaon case, has observed that mere possession of certain literature, which even inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of UAPA.
"Merely because he was following some news items related to Middle East and Israel-Palestine conflict or had been accessing hate speeches of hard-line Muslim preachers, would not be enough to hold that he was acting in furtherance of a banned terrorist organisation," it said.
The court therefore directed that the appellant be released on bail on such terms and conditions as the trial court may consider fit and proper.
It also held that the court can consider bail plea in a UAPA case, even after ascertainment of charges as the right to seek bail is an indefeasible one and can be exercised at any stage.
"Consequently, we, hereby, allow the present appeal and direct that the appellant be released on bail on such terms and conditions, as the concerned learned Special Court may consider fit and proper," the court ordered.
