The court ruled that merely possessing incriminating material, whether in physical or digital form, does not automatically imply an intention to advance terrorist activities.
The Delhi High Court on Monday granted bail to a man accused of supporting the ISIS under the Unlawful Activities Prevention Act (UAPA). The court said that merely having an interest in or fascination with the banned terrorist organisation does not necessarily imply association with it.
Justice Suresh Kumar Kait, leading the bench, said the accused, 30-year-old Ammar Abdul Rahiman, was a “highly radicalised person” who aligned with ISIS ideology. Rahiman was found to have downloaded and stored certain objectionable content on his mobile phone, but there was no evidence indicating any effort to distribute it further. The court observed that accessing and downloading such content from the internet, while concerning, isn’t a criminal offense.
“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 organisation, 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 ruled that merely possessing incriminating material, whether in physical or digital form, does not automatically imply an intention to advance terrorist activities. It said that additional evidence beyond possession is required to establish such intent.
The National Investigation Agency (NIA) alleged that the appellant, who was arrested in August 2021, conspired with ISIS members to undertake “Hijrah” to Jammu and Kashmir and to carry out ISIS activities in India. The prosecution presented evidence that the appellant followed a pro-ISIS Instagram account and had images to global terrorist Osama bin Laden, Jihad promotion, and ISIS flags on his digital devices.
However, in its 46-page judgment, the court observed that the data retrieved from the appellant”s electronic devices did not support the prosecution”s case. The court also deemed the invocation of Section 38 and 39 of the Unlawful Activities (Prevention) Act (UAPA) as “erroneous and misplaced” in this instance. It noted that while the trial court directed the appellant to face trial for offenses of conspiracy under the Indian Penal Code along with Section 2(o) (unlawful activity) and sections 13 (punishment for unlawful activities), 38, and 39 of UAPA, there was no prima facie evidence suggesting that he was either a perpetrator of a terrorist act or conspiring to commit one.
The court said that merely downloading software such as MobileSafari or Telegram, which are publicly available, cannot be construed as evidence of wrongdoing. It stressed the necessity for the prosecution to establish the element of “mens rea,” indicating an intention to further the activities of a terrorist organisation.
The court also referenced the Supreme Court”s stance on the Bhima Koregaon case, highlighting that mere possession of literature that may inspire or propagate violence does not automatically constitute offenses under the relevant sections of the UAPA.
“Merely because he was following some news items 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 ordered the appellant”s release on bail, subject to the terms and conditions deemed appropriate by the trial court. It also held that the right to seek bail in UAPA cases is inherent and can be exercised at any stage, even after charges have been framed.
