Delhi High Court
Md Heydaitullah vs National Investigation Agency on 10 January, 2025
Author: Amit Sharma
Bench: Prathiba M. Singh, Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Reserved on: 16th December, 2024
Pronounced on: 10th January, 2025
+ CRL.A. 871/2023
MD HEYDAITULLAH .....Appellant
Through: Mr. Trideep Pais, Sr. Adv. with
Mr. Kartik Murukutla, Adv.
Versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. Rahul Tyagi, SPP (NIA)
with Mr. Jatin, Mr. Amit Rohila
and Mr. Shaurya Lamba, Advs.
with Insp. Vishnu Kumar, CIO,
NIA with Mr. B.P. Gautam.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present appeal has been filed by the Appellant-Md.
Heydaitullah under Section 21(4) of the National Investigation Act,
2008 (for short, ‘NIA Act‘) read with Section 482 of the Code of
Criminal Procedure, 1973, (for short, ‘CrPC‘) assailing the impugned
order dated 23.08.2023 passed by Shri Shailender Malik – ASJ-03,
New Delhi District, Patiala House Courts, New Delhi in RC No.
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14/2021/NIA/DLI dated 29.06.2021 under Sections 124A/153A/153B
of the IPC and Sections 17/18/18-B/38/39/40 of the Unlawful
Activities Prevention Act, 1967 (for short ‘UAPA’) registered at P.S.
NIA, whereby the bail application of the Appellant was dismissed.
2. As per the case of the prosecution certain inputs were received
regarding proscribed terrorist organizations such as Islamic State of
Iraq and Syria (for short, ‘ISIS’) running a campaign in the cyber
space for radicalizing youths and carrying out terrorist activities in
India and elsewhere. It is alleged that one cyber identity by the name
of Qasim Saini @ Qasim Khurasani along with his associates was
actively involved in creating and disseminating ISIS centric
propaganda with the intention of motivating youths for taking part in
violent jihad.
3. In pursuance of the above Ministry of Home Affairs,
Government of India vide Order No. 11011141/2021/NIA dated
29.06.2021 directed the NIA (i.e. Respondent) to register and
investigate the aforesaid case.
4. The case of the prosecution is that the Appellant is a close
associate of co-accused Basit Kalam Siddiqui (for short, ‘A-12’) and
had conspired to establish Sharia law in India under the flag of ISIS
by waging Jihad. It is alleged that the Appellant was disseminating the
ISIS ideology through the cyber space, and was spreading hatred
against the Government of India by promoting enmity against Hindus
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on social media. It is further alleged that the Appellant had transferred
funds for the cause of ISIS from his bank account. Also, various
incriminating materials have been found in the electronic devices (D-
201 and D-202) recovered from the Appellant during the
investigation.
5. The Appellant was arrested by the Respondent on 22.10.2022
and was chargesheeted in the present case vide second supplementary
chargesheet dated 12.04.2023 for the offences punishable under
Sections 17/18/38/39 of the UAPA and Sections 120-B/153-A and
153-B of the IPC. For the sake of completeness, the role ascribed to
the Appellant (i.e A-13) by the Respondent in the aforesaid
supplementary chargesheet filed before the learned Trial Court is as
under:
“17.2 Role and activities/offences established against A-13: –
17.2.1 Investigation revealed that A-13 was born and brought up
at Village- Siswan, PS-Barharia, Dist-Siwan, Bihar. He
completed his MBA in the year 2015 from Jamia Milia Islamia
University, Delhi. At the time of arrest he was working in Avaya
India Private limited, Global Business Park, near Guru
Dronacharya Metro Station, Gurugram.
17.2.2 Investigation revealed that he used to watch videos/news
related to so called atrocities against the Muslim community.
After watching these types of videos, his thinking turned against
the Government of India and he started reading contents of
proscribed terrorist organisations including ISIS on the internet.
He got influenced by these thoughts and started feeling that
Muslims are being oppressed everywhere. Finally, he developed
inclination towards ISIS and came to a conclusion that ISIS is
the only Tanzeem which follows the principle of Sharia and
made up his mind to join ISIS organization. Gradually his
interest in ISIS grew and he began searching for keywords such
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as ISIS, Jihad, Khilafa, Islamic state, Dawlah Islamia, and so
on. He searched telegram groups and joined them. He was fully
inclined towards ISIS ideology. He further took oath (bayath)
twice in the name of “Abu Bakr Al Bagdadi” through audio
shared on Telegram to work with ISIS. Daring investigation his
mobile phone was seized and sent to Cert-In for examination and
data was received. Various pro ISIS audios, videos, posters were
recovered from his digital devices. Digital extract from the
digital devices of A-13 make it evident that he was higly
radicalised and was motivated by ISIS ideology. Recovery of a
picture of ISIS pledge proves that he had taken the pledge of
allegiance to ISIS and was an ardent member of this proscribed
organization. He joined various social media groups specially on
telegram to meet like minded people and had conspired to spread
ISIS ideology.
17.2.3 Investigation revealed that he searched and joined
Telegram group “Muslim chat”. During group chatting, he came
in contact with one Telegram handle “wolf” and further, he was
added in the telegram group “The Caravan of desert” by
“wolf”. After one month “wolf” shared another telegram group’s
link on the group of “The Caravan of Desert” and on his
personal telegram ID for joining telegram group ID Al
Malhamah, D@wl@tulisl@m, Sawt-al Hind Link, VOH,
Mohammad Bot, Islam based department, Adam Tech world
etc and he joined one telegram channel “Voices of Al-Hol
Camp” by self searching on Telegram by himself.
He used these accounts to keep a watch on posts regarding ISIS,
and he also tried to make friends, with people of similar
ideology. Telegram group Adam Tech World provides virtual
numbers and he got one virtual number +33751525309 and than
made telegram ID Wolf-lion. During this process, he established
connection with myriad militant groups such as TRF, ISIS etc.
who are fighting to remove the Government of India and want to
establish reign by Islam/Dajjal. This Telegram group has tips
and tricks on establishing and maintaining anonymity online.
17.2.4 Investigation revealed that A-13 was the member of many
pro ISIS groups. Once he received a message in Telegram group
voices of Al hol camp related to donation of some money for
Al-Hol Camp from telegram ID: umm_imara. In that message
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umm_imara shared a bank account number 0863101034295 of
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Canara bank in which funds had to be sent. He further sent Rs.
15000/- on 30.07.2020 through NEFT from his Yes Bank
account no. 017291800001989. The same transaction is reflected
in his bank statement. Further efforts to resolve the identity of
ISIS Telegram entity umm_imara are being made and to resolve
the identity the actual beneficiary of the amount sent by A-13.
Further during scrutiny of seized mobile data it was found that
A-13 was the member of Voices of Al-Hol Camp (Telegram id-
1398146684) and he got motivated to donate funds for the cause
of ISIS.
A-13 while chatting on a telegram group Voice of Al hol camp
got a message to donate money to support women and children
of ISIS fighters, from a telegram user @ umm_imara. The bank
account details for deposting the money was shared on the said
group. A-13 as an ardent member of ISIS, decided to donate the
sum of Rs 15000.
During investigations, A-13 was questioned regarding the
transfer of money from his bank account to the bank account
shared on the telegram group Al hol Camp to help the cause of
ISIS. He informed that he wanted to help the women and
children of ISIS fighters, so he transferred the money. This itself
proves that he is an ISIS Sympathsier. It is also corroborated by
witnesses.
17.2.5 Investigation revealed that the A-13 was associated with
co-accused A-12 through social media applications and both
were part of many Pro ISIS social media groups therein ISIS
propaganda materials were shared. Some chats were found in
mobile data of A-12 showing their association.
Chats have been found on Telegram between A-12 having
Telegram ID 5645052658 (WOLF) and A-13 having Telegram
ID: 5580008391 (Wolf-Lion).
Chats were found in al malhamah telegram group in which
Basit and Heydaitulla were members and ISIS related contents
were posted in this group.
During scrutiny of mobile data of A-13 it was found that he was
also member of pro ISIS telegram group ISLAM Based
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Department in which A-12 was also member and in this group
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ISIS material were shared.
Social media chats of A-13 with A-12 show that they both were
known to each other and they both were members of many
common social media accounts where ISIS related material were
circulated and ISIS ideology was discussed.
17.2.6 Investigation revealed that A-13 was the member of many
pro ISIS telegram groups and used to receive and share ISIS
propaganda material. It is evident from evidence extracted from
the digital devices of A-13 that he was highly radicalized by ISIS
ideology; took oath of allegiance to ISIS; joined various social
media groups where he came in contact with the like-minded
people propagating and disseminating ISIS ideology, recruited
people for the proscribed organisation, collected funding for the
cause of ISIS, learned to make IEDS, watched videos to
establish Sharia law in India under the flag of ISIS.
17.2.7 Investigation further revealed that A-13 was planning to
carry out bomb blasts in India with co accused A-12. He also
searched and read many online and off line articles to prepare
various types of explosives/IEDs & bombs. In this regard many
pdf and videos were found in his seized digital devices
describing methods of preparing explosives and bombs,
Chats on Telegram group where A-13 was a member and the
group members were sharing tutorial videos/pdf/image for
preparing explosives. This establishes inclination of A-13 for
preparing explosives and IEDs. In this chat A-13 is also seen
proposing to have separate secret chat group on conversation.in.
to avoid LEA’s scrutiny.
A-13 was also member of many Telegram groups dealing with
guns and 3D Printing of weapons/guns. Evidence extracted from
his digital devices shows Telegram groups discussing making of
Guns with the help of 3D printers and also recovery of digital
images, showing guns which can be easily made by 3D printers
with pictorial guides to make paper cartridge.
In this regard group chats found in mobile data of A-13, where
he was also a group member. This group discussed about making
Guns with the help of 3D printing.
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6. Thereafter, the Appellant filed an application under Section 437
Cr.P.C. read with Section 43(D)(5) of UAPA seeking regular bail and
the same was dismissed by the learned Trial Court vide the impugned
order.
7. Hence, the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANT
8. Learned Senior Counsel appearing on behalf of the Appellant
submitted that the there was no evidence connecting the Appellant to
any terrorist organization including ISIS. The only allegation, which is
relied upon by the prosecution, is the remittance of Rs.15,000/- from
the Yes Bank account of the Appellant to one Mohd. Unais (PW-125),
which is not sufficient to hold that the Appellant was either a member
of any terrorist organization or had in any manner donated or
contributed to any terrorist organization for furthering its cause. It is
further submitted that in the initial FIR dated 29.06.2021, no
accusations were made against the Appellant. It was only after the
Appellant was arrested on 20th October, 2022 that this banking
transaction was relied upon and the Appellant was arrayed as a co-
accused in the second supplementary chargesheet.
9. Learned Senior Counsel appearing on behalf of the Appellant
submitted that Appellant had not made any direct remittance to the
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lady Ms. Afa Ibrahim and the aforesaid witness i.e., Mohammad
Unais, to whom the Appellant had transferred Rs. 15,000/- on
30.07.2020, had made a second remittance of equivalent Maldivian
Rufiyaa (3100 MVR) to Ms. Afa Ibrahim, on the same date. Further, it
is submitted that there is no material on record show that Ms. Afa
Ibrahim, belonged to ISIS or that she was running any telegram group,
bearing Telegram ID: “umm_imara”. In the reply filed by the NIA, in
respect of the telegram chats, the following is recorded:
“….. Further during investigations of NIA case No. RC-
26/2022/NIA/DLI, it emerged that one lady having Telegram
account similar to “umm_imara” i.e “umm3imarah” and
“ummimarah0″ used to raise funds for ISIS on the name of
charity work for Al-Hol Camp. This clearly establishes that the
accused Md. Heydaitullah (A-13) had intentionally provided
funds for ISIS.”
10. It was argued that the aforesaid witness has also given an
explanation as to the reason why the Appellant deposited Rs. 15,000/-
in his account, and why the same was remitted by him to Ms. Afa
Ibrahim. However, in his statement, Mohd. Unais (PW-125) does
make a factual assertion that Ms. Afa Ibrahim is involved in raising
funds for ISIS activities, but there exists no material to support such
an assertion. It is submitted that the entire basis of the present case,
which has been put up against the Appellant, cannot be on such a
hearsay or a non-substantiated statement given by a witness. Further it
was argued that the Respondent has not been able to proffer any proof
that any message was sent by the Appellant to ISIS. Also, there was no
proof that Ms. Afa Ibrahim is part of ISIS. Even the neighbour’s name
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at whose behest allegedly the remittance was sought by the Appellant
could not be recalled by Mohd Unais during his deposition before the
learned Trial Court (PW-125).
11. Insofar as the chargesheet is concerned, it was pointed out that
the second supplementary chargesheet dated 12.04.2022, reflects that
there was no pro ISIS material that was revealed from the
investigation against the Appellant. Although, it is alleged that the two
mobile phones, which were seized from the Appellant, did reveal
certain documents relating to the ISIS such as pledge for joining ISIS
etc., but the same would not be sufficient to show that the Appellant
had, in any manner, disseminated any material relating to the ISIS. It
is also submitted that the mere presence of sympathizing material in
respect of ISIS would not be sufficient to show that the Appellant is
guilty of the offences charged.
12. Further it is submitted that a perusal of paragraph 17.2.1 and
17.2.7 of the second supplementary chargesheet would reflect that
various allegations have been made against the Appellant. However,
there is no supporting evidence provided by the prosecution with
regard to the said allegations, including the allegation regarding the
Appellant joining Muslim chat group on Telegram called “The
Caravan of desert” or “Voices of AL-Hol Camp” as is alleged in
paragraph 17.2.4 of the aforesaid chargesheet.
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13. Learned Senior Counsel appearing on behalf of the Appellant
submitted that the material which was recovered from the two mobile
phones of the Appellant namely (i) green black Redmi phone (D-201)
and (ii) Samsung Galaxy J7 phone (D-202), showed mere existence of
455 PDF documents on the Redmi phone, without any further
dissemination of the same. It was argued that this cannot show that the
Appellant had been distributing or calling for any recruitment or
actively participating in any ISIS activity. The data, which had been
recovered from the said phones, also does not establish that the Al-Hol
camp belong to the ISIS. It is submitted that at most, the allegation
that can be made against the Appellant is that there was ISIS
sympathizing material on both the phones. It was further argued that
there was no material to show that the Appellant, in fact, took a pledge
in favour of ISIS. Mere possession of such material cannot be held to
be an offence, as per the settled legal decisions.
14. Learned Senior Counsel appearing on behalf of the Appellant
argued that Insofar as the group named “Caravan of desert” being
related to the ISIS is concerned, the same is, in fact, an allegation,
which is not supported by the screen shot, appended at page 237 of the
present Appeal. It was submitted that that the telegram conversations
placed on record between a co- accused, who takes the name ‘Wolf’
and the Appellant, who goes by the name ‘Momin Believer’ also did
not show any implicating material.
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15. Reliance was placed on the judgement of the Hon’ble Supreme
Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra
and Anr1., to argue that mere sympathizing with an organization is not
sufficient to reject an application for bail. Further in consonance with
the principles laid down by the Hon’ble Supreme Court in National
Investigation Agency v. Zahoor Ahmad Shah Watali,2 (2019) 5 SCC
1, it was submitted that the allegations have to prima facie show the
Appellant’s complicity in the commission of the said offence.
16. Learned Senior Counsel appearing on behalf of the Appellant
also placed reliance on the judgment of the Hon’ble Supreme Court in
Thwaha Fasal v. Union of India3, wherein it was held that it is
imperative to establish that the accused was involved in furthering the
activities of a terrorist organization and the same is an essential
condition. Mere association and support to a terrorist organization
cannot be held to be sufficient and active participation is required.
17. Judgment of the Hon’ble Supreme Court in Jalaludin Khan v.
Union of India4, was relied upon to argue that the connection between
the Appellant and the tenant who was given the premises on rent
would not show a direct connection between the Appellant and the
Popular Front of India (“PFI”). It is pointed out that on the aforesaid
reasoning the Hon’ble Supreme Court had granted bail to the accused
in Jalaludin Khan (supra). The reference was then made to the
1
(2005) 5 SCC 294
2
(2019) 5 SCC 1
3
2021 SCC OnLine SC 1000
4
2024 SCC OnLine SC 1945
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decision of the U.S. Supreme Court in Brandenburg v. Ohio5 to argue
that it is not sufficient that there is a clear and present danger unless
the same is manifested in the form of lawlessness or unlawful action
thereafter. In furtherance of the above it was argued that even
advocacy of use of force or of law violation would not be sufficient to
reject the bail except where such advocacy is directed to inciting or
producing imminent illegal/violent action. It was also highlighted that
Brandenburg (Supra) had been upheld by the Supreme Court in
Shreya Singhal v. Union of India6.
18. Lastly, learned Senior Counsel for the Appellant submitted that
that the Appellant was arrested on 20.10.2022, more than two years
have passed since his arrest and charges are yet to be framed before
the learned Trial Court. It was further pointed out that the Appellant
had on one occasion submitted before the learned Trial Court that the
framing of charge ought to be postponed till the investigation is over
as per the prosecution. It was pointed out that the Appellant also
satisfies the Tripod Test as he is a qualified Engineer with an MBA.
He has a wife and two children and there is no propensity for him to
be involved in a terrorist organization. He also does not have any
previous criminal record. The use of certain objectionable terminology
by themselves would not constitute a crime under UAPA. Thus, it is
submitted that the test required under UAPA is not satisfied to
withhold the bail of the Appellant.
5
395 US 444 (1969)
6
2015 (5) SCC 1
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19. Learned Senior Counsel has also placed reliance on the
following judgments:
1) SC Legal Aid Committee Representing Undertrial
Prisoners v. Union of India7,
7
(1994) 6 SCC 731
8
(1978) 1 SCC 248
9
(1980) 1 SCC 81
10
(1980) 1 SCC 98
11
(1983) 2 SCC 104
12
(1986) 4 SCC 481
13
(2002) 4 SCC 578
14
(2018) 16 SCC 521
15
(2011) 1 SCC 784
16
(2017) 2 SCC 731
17
(2021) 3 SCC 713
18
(2021) 3 SCC 723
19
(2021) 3 SCC 725
20
2022 SCC Online SC 441
21
2021 SCC Online Del 4623
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SUBMISSIONS ON BEHALF OF THE RESPONDENT
20. Learned SPP appearing on behalf of the Respondent submitted
that the Appellant is a close associate of co-accused Basit Kalam
Siddiqui (A-12) having Telegram Id 5645052658 user name – ‘Wolf’.
It is further submitted that the Appellant was influenced by the
ideology of ISIS and had become a member of the same upon taking
the oath of allegiance. The Appellant had been found to be involved in
dissemination of ISIS ideology in cyber space and most of his posts on
social media are against Government of India and provocative against
the Hindu community.
21. It was argued that the Appellant had transferred funds for the
cause of ISIS from his Yes Bank account to one Mohd. Unais (PW-
125) and the same is reflected in his bank account (D-209). Various
pro-ISIS audios, videos, posters were recovered from the digital
devices of the Appellant. He joined various pro-ISIS telegram groups
such as ‘Muslim chat’, “The Caravan of desert”, “Al Malhama”,
“D@wl@tulisl@m”, “Sawt-al Hind”, “Islam Based department” and
“YOH” to meet like-minded people and had conspired to spread ISIS
ideology in India. It was further submitted that the Appellant had
joined one telegram channel “Voices of Al-Hol Camp” which is
directly linked to ISIS.
22. On 11.12.2024 a pen drive containing electronic data recovered
from the various devices seized from the Appellant was handed over
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in Court. Learned SPP appearing on behalf of the Respondent placed
reliance upon certain parts of the data, illustratively, to show the
nature of the activities of the Appellant and to emphasize the
following aspects: –
i. That the Appellant had taken oath twice and had sworn
allegiance to ISIS.
ii. That the Appellant was in the process of recruiting third
parties to become a part of ISIS and to swear allegiance to
ISIS.
iii That the Appellant had sworn his allegiance to a well-
known individual terrorist and thereafter to the leader.
iv. That the Appellant is a believer of Jihad and the chats
reflect that he believes in the establishment of a caliphate
and also to eliminate all non-believers.
23. It was submitted that the aforesaid chats would establish beyond
any reasonable doubt that for more than five years, the Appellant was
associated with ISIS. Various materials including the oath of
allegiance, the pledges which have been taken, methods for
preparation of explosive material, etc. have been recovered during the
investigation. It was pointed out that the image depicting the ISIS flag
on the India Gate is also available on the Appellant’s digital devices.
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It was argued that agencies cannot wait for such individuals to
manufacture explosives and indulge in terror attacks for taking action
or arresting them.
24. Learned SPP appearing on behalf of the Respondent submitted
that under Sections 38/39 of the UAPA such persons who either
associate with terror organisations or render support to terror
organisations would also be deemed to commit offences under the
UAPA. The chats would establish that Appellant’s case is fully
covered under Sections 38 and 39 as also Sections 17 and 18 of
UAPA as he is indulging in recruitment of other persons for
promoting the cause of terror organisations.
25. Learned SPP appearing on behalf of the Respondent further
submitted that the Appellant had used different names on Telegram
groups in order to hide his identity. In one Telegram group he goes by
the name “Sam” and in the other Telegram group he goes by the name
“Mommin Believer”. It was pointed out that the Appellant is a Senior
Project Manager who was working in an IT Company based in
Gurgaon with an MBA from an established university and if such
persons are involved in terror related activities the impact would be
far higher.
26. Learned SPP appearing on behalf of the Respondent placed
reliance upon the Financial Action Task Force evaluation report of
September 2024, which states that one of the most serious threats
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being faced by India is from groups linked to ISIS and Al Qaeda. It is
further submitted that the fact that all this material is not being shared
physically but through electronic means would not in any way render
the offence any lighter in as much as the electronic means and
technology is being used to spread the message of terror in a much
wider and a far-reaching manner.
27. Judgment of the Hon’ble Supreme Court in Arup Bhuyan v.
State of Assam and Ors.22, was relied upon to argue that the Hon’ble
Supreme Court has not accepted the tests laid down in Brandenburg
(Supra) in the context of Section 10 of the UAPA. It was pointed out
that in the aforesaid judgment the Hon’ble Supreme court has also
held that the intent and purport of the said Act is prevention of
unlawful activities.
28. Lastly, learned SPP appearing on behalf of the Respondent
sought to distinguish Thawaha Fasal (Supra) to say that the only
incriminating evidence which was found in the said matter against the
accused were hard copies of materials concerning CPI (Maoists) and
the accused had participated in some gathering of the said organisation
and nothing more. Thus, the said case is completely distinguishable.
29. Learned SPP has also placed reliance on the following
judgments:
1) Zahoor Ahmad Shah Watali (supra)
22
2011 (3) SCC 377
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2) State of U.P. through CBI v. Amarmani Tripathi23,
3) Umar Khalid v. State of National Capital Territory of Delhi24,
6) Lt. Col Prasad Shrikant Purohit v. The State of
Maharashtra27,REJOINDER SUBMISSIONS ON BEHALF OF THE
APPELLANT
30. Learned Senior Counsel appearing on behalf of the Appellant
submitted that merely expressing communal sentiments on Telegram
chats would not make an individual liable to punished for the offences
punishable under Section 38 and 39 of the UAPA. Reliance was
placed on an opinion of Professor Bipin Chandra to argue that the
social, economic and political life of an individual could be aligned
with one religion however, it is only after it becomes inimical to the
other religions and believers of other religions that it becomes a
fundamental resolve.
31. It was further submitted that the Appellant got drawn into such
conversations on Telegram by three other persons, and the said
persons have not been investigated yet. It was argued that the chats at
23
8 SCC 21
24
MANU/DE/4058/2022
25
MANU/DE/6294/2023
26
(2021) 4 SCC 704
27
(2018) 11 SCC 458
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best could be considered as inculcation of religious beliefs which in
itself cannot be considered as wrong.
32. Learned Senior Counsel appearing on behalf of the Appellant
fairly conceded that the aforesaid conversations did reveal that the
Appellant had taken oath of the ISIS twice, however, the same was not
video-graphed and at best would reveal that he is a supporter. Further
it was submitted that the said oath was taken individually and not in a
group which was clear from entry 2022 of the Telegram chat. Hence,
at best it could be said that the Appellant had communal tendencies
but without committing any overt act.
33. Reliance was placed upon paragraph 38 of Thawaha Fasal
(supra) in which the Hon’ble Supreme Court held that mere
association or support to a terrorist organisation by an individual
would not constitute a violation under the UAPA, unless there is an
overt act on an individual’s part which reflects the intention or the
state of mind of constant association and support for a terrorist
organisation.
34. Further reliance is placed upon the judgment of a Co-ordinate
Bench of this Court in Ammar Abdul Rahiman vs National
Investigation Agency28, to argue that mere existence of material on
digital devices showing a radical mindset of an individual would not
constitute as support to a terrorist organisation, and the required
28
2024 SCC OnLine Del 3318
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ingredients of Sections 38 and 39 of the UAPA cannot be left to
imagination but have to be borne out from the evidence.
ANALYSIS
35. Heard the parties and perused the record.
36. Admittedly, the charges qua the Appellant have not been
framed yet by the learned Trial Court in this case.
37. Vide the second supplementary chargesheet dated 12.04.2023,
the Appellant has been charged for offences punishable under
Sections 17/18/38/39 of the UAPA and Sections 120B/153A/153B of
the IPC.
38. Sections 17/18/38/39/40 of the UAPA read as under: –
“17. Punishment for raising funds for terrorist act.–
Whoever, in India or in a foreign country, directly or
indirectly, raises or provides funds or collects funds,
whether from a legitimate or illegitimate source, from any
person or persons or attempts to provide to, or raises or
collects funds for any person or persons, knowing that such
funds are likely to be used, in full or in part by such person
or persons or by a terrorist organisation or by a terrorist
gang or by an individual terrorist to commit a terrorist act,
notwithstanding whether such funds were actually used or
not for commission of such act, shall be punishable with
imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life, and
shall also be liable to fine.
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Explanation.–For the purpose of this section,–
(a) participating, organising or directing in any of the acts
stated therein shall constitute an offence;
(b) raising funds shall include raising or collecting or
providing funds through production or smuggling or
circulation of high quality counterfeit Indian currency; and
(c) raising or collecting or providing funds, in any manner
for the benefit of, or, to an individual terrorist, terrorist gang
or terrorist organisation for the purpose not specifically
covered under section 15 shall also be construed as an
offence.
18. Punishment for conspiracy, etc.–Whoever conspires
or attempts to commit, or advocates, abets, advises or
[incites, directly or knowingly facilitates] the commission
of, a terrorist act or any act preparatory to the commission
of a terrorist act, shall be punishable with imprisonment for
a term which shall not be less than five years but which may
extend to imprisonment for life, and shall also be liable to
fine.
*** *** ***
39. Offence relating to membership of a terrorist
organisation.–(1) A person, who associates himself, or
professes to be associated, with a terrorist organisation with
intention to further its activities, commits an offence relating
to membership of a terrorist organisation:
Provided that this sub-section shall not apply where the
person charged is able to prove–
(a) that the organisation was not declared as a terrorist
organisation at the time when he became a member or began
to profess to be a member; and
(b) that he has not taken part in the activities of the
organisation at any time during its inclusion in the Schedule
as a terrorist organisation.
(2) A person, who commits the offence relating to
membership of a terrorist organisation under sub-section
(1), shall be punishable with imprisonment for a term not
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exceeding ten years, or with fine, or with both.
40. Offence relating to support given to a terrorist
organisation.–(1) A person commits the offence relating
to support given to a terrorist organisation,–
(a) who, with intention to further the activity of a terrorist
organisation,–
(i) invites support for the terrorist organization; and
(ii) the support is not or is not restricted to provide money or
other property within the meaning of section 40; or
(b) who, with intention to further the activity of a terrorist
organisation, arranges, manages or assists in arranging or
managing a meeting which he knows is–
(i) to support the terrorist organization; or
(ii) to further the activity of the terrorist organization; or
(iii) to be addressed by a person who associates or professes
to be associated with the terrorist organisation; or
(c) who, with intention to further the activity of a terrorist
organisation, addresses a meeting for the purpose of
encouraging support for the terrorist organisation or to
further its activity.
(2) A person, who commits the offence relating to support
given to a terrorist organisation under sub-section (1) shall
be punishable with imprisonment for a term not exceeding
ten years, or with fine, or with both.”
*** *** ***
39. Sections 120B/153A/153B of the IPC read as under: –
120B. Punishment of criminal conspiracy. — (1)
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Whoever is a party to a criminal conspiracy to commit an
offence punishable with death, [imprisonment for life] or
rigorous imprisonment for a term of two years or upwards,
shall, where no express provision is made in this Code for
the punishment of such a conspiracy, be punished in the
same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a
criminal conspiracy to commit an offence punishable as
aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with fine
or with both.]*** *** ***
153A. Promoting enmity between different groups on
grounds of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to maintenance
of harmony. — (1) Whoever–
(a) by words, either spoken or written, or by signs or by
visible representations or otherwise, promotes or attempts to
promote, on grounds of religion, race, place of birth,
residence, language, caste or community or any other
ground whatsoever, disharmony or feelings of enmity,
hatred or ill-will between different religious, racial,
language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance
of harmony between different religious, racial, language or
regional groups or castes or communities, and which
disturbs or is likely to disturb the public tranquillity, [or]
(c) organizes any exercise, movement, drill or other similar
activity intending that the participants in such activity shall
use or be trained to use criminal force or violence or
knowing it to be likely that the participants in such activity
will use or be trained to use criminal force or violence, or
participates in such activity intending to use or be trained to
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use criminal force or violence or knowing it to be likely that
the participants in such activity will use or be trained to use
criminal force or violence, against any religious, racial,
language or regional group or caste or community and such
activity for any reason whatsoever causes or is likely to
cause fear or alarm or a feeling of insecurity amongst
members of such religious, racial, language or regional
group or caste or community,]shall be punished with imprisonment which may extend to
three years, or with fine, or with both(2) Offence committed in place of worship, etc.–
Whoever commits an offence specified in sub-section (1) in
any place of worship or in any assembly engaged in the
performance of religious worship or religious ceremonies,
shall be punished with imprisonment which may extend to
five years and shall also be liable to fine.]
153B. Imputations, assertions prejudicial to national
integration.–(1) Whoever, by words either spoken or
written or by signs or by visible representations or
otherwise,–
(a) makes or publishes any imputation that any class of
persons cannot, by reason of their being members of any
religious, racial, language or regional group or caste or
community, bear true faith and allegiance to the
Constitution of India as by law established or uphold the
sovereignty and integrity of India, or
(b) asserts, counsels, advises, propagates or publishes that
any class of persons shall, by reason of their being members
of any religious, racial, language or regional group or caste
or community, be denied, or deprived of their rights as
citizens of India, or
(c) makes or publishes any assertion, counsel, plea or appeal
concerning the obligation of any class of persons, by reason
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of their being members of any religious, racial, language or
regional group or caste or community, and such assertion,
counsel, plea or appeal causes or is likely to cause
disharmony or feelings of enmity or hatred or ill-will
between such members and other persons, shall be punished
with imprisonment which may extend to three years, or with
fine, or with both.
(2) Whoever commits an offence specified in sub-section
(1), in any place of worship or in any assembly engaged in
the performance of religious worship or religious
ceremonies, shall be punished with imprisonment which
may extend to five years and shall also be liable to fine.”
40. So far as the offences under provisions of UAPA are concerned,
the Appellant needs to satisfy the threshold as specified in Section
43D (5) of UAPA, in order to avail the benefit of bail. The said
provision reads as under: –
“43D 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.”
41. A bare reading of the aforesaid provision indicates that the
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opinion of the Court as required by the aforesaid section has to be “on
a perusal of the case diary or the report made under Section 173 of
the Code”. Thus, in order to assess and find justifications for grant or
non-grant of bail to the Appellant, the material collected and filed
along with chargesheet by the NIA needs to be examined.
42. It is admitted case of the Appellant that he is qualified MBA
and was working in an IT company based in Gurgaon as a Senior
Project Manager. The prosecution has placed heavy reliance on chats
retrieved from various devices seized from the Appellant, in order to
establish its case qua the Appellant with respect to offences for which
he has been charged for.
43. As per the case of the prosecution the Appellant was using
various IDs to join various pro-ISIS Telegram groups in order to meet
like-minded people and to spread ISIS ideology in India as well as
recruiting persons to join ISIS and take recourse to violent methods to
achieve their purpose. As per the main chargesheet dated 06.01.2022
in paragraph 16.2 it is recorded as under:
“The Islamic State is also known by the names Islamic State of
Iraq and Syria (ISIS), Islamic State of Iraq and Levant (ISIL),
Daesh, al- Dawlah al-Islamiyyah fi al-Iraq wa al-Sham. It is a
radical Sunni insurgent group emerged from the remnants of Al
Qaeda in Iraq (AQI), a local offshoot of al Qaeda founded by
Abu Musab al Zarqawi in 2004.
xxx xxx xxx
The group changed its name to the Islamic State of Iraq and
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Syria (ISIS) in 2013. In April 2013, ISIS became an independent
outfit.
xxx xxx xxx
ISIS launched an offensive on Mosul and Tikrit in June 2014. On
29 June 2014, ISIS leader Abu Bakr al Baghdadi announced
the formation of a caliphate stretching from Aleppo in Syria
to Diyala in Iraq, and renamed the group the Islamic State.
The Baghdadi era of ISIS ended on October 26, 2019, when the
leader was reportedly killed in a raid in norther Syria by NATO
forces.”
(emphasis supplied)
44. Some of the chats retrieved and relied upon by way of
illustration during the course of arguments by learned SPP are being
reproduced hereinbelow: –
45. The Appellant has had a group chat on the group
wherein the Appellant is using Telegram ID
Momin-Believer and is seen communicating with another individual
having Telegram ID 865888546 .
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The aforesaid chats clearly indicate that the Appellant is very
keen on Jihad and wants to establish Khilafat (Caliphate).
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46. The next set of chats is between the Appellant using the
Telegram ID Sam with an individual using Telegram ID 1277972116>
From the aforesaid chats it can be clearly seen that the
Appellant is contacting the other person in order to go for Hijrah
(connotes the travel to Dawlah). As already noted in the chargesheet
the Islamic State is also known by the names Islamic State of Iraq and
Syria (ISIS), Islamic State of Iraq and Levant (ISIL), Daesh, al
Dawlah al-Islamiyyah fi al-Iraq wa al-Sham.
47. The next set of chats is between the Appellant using the
Telegram ID Sam with another individual using Telegram ID
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963326519>
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In these chats again, the Appellant is trying to contact some
person in order to travel to Dawlah and is conveying that he has taken
Bayath (oath of swearing allegiance to ISIS) once in 2018 in the name
of Abu Bakr al Baghdadi and thereafter again in the name of Abu al-
Hasan al-Hashimi al-Qurashi (leader of the ISIS) in 2022. This also
corresponds to the oath which was retrieved from the phone of the
Appellant.
48. The Appellant has had online chats by using the Telegram ID
Sam with various individuals using different IDs. The first set of chats
is with an individual using Telegram ID Abdullah <5327875071>
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The aforesaid conversation would reveal that the Appellant had
been using different IDs and was advocating to do the same thing to
the person he was chatting with. The chat with the aforesaid further
continues in the following manner: –
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In the aforesaid chats, the Appellant is clearly advocating the
difference between Sharia Law and Khilafat (“Caliphate”). It can also
be seen that the Appellant states that Jihad is necessary to establish
Khilafat (“Caliphate”). The tone and tenure of the said chats clearly
reflect that the Appellant was advocating the establishment of Khilafat
(“Caliphate”) by all means including violent struggle. As already
noted hereinbefore as per the chargesheet on 29.06.2014 ISIS leader
Abu Bakr al Baghdadi announced the formation of a “Caliphate” from
Aleppo in Syria to Diyala in Iraq, and renamed the group Islamic
State.
49. The next set of conversation is between the Appellant using
Telegram ID Momin-Believer <2071200181> with an individual
using ID 13862454577
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In the aforesaid chats, the Appellant is clearly conveying to the
other person that despite of him being well placed in an IT company,
he is not happy as he is unable to do much for Jihad. Apart from the
above, the recovery of incriminating material recovered from the
mobile phone of the Appellant showing Pro-ISIS material including a
photograph depicting ISIS flag installed at India Gate and a copy of
Bayath would show that the Appellant is deeply influenced with the
philosophy and ideology of the ISIS. From the above it can be seen
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that the Appellant was keen to invite people to join groups and create
a movement to further the activities of ISIS. The chats as reproduced
hereinabove reflect that the Appellant was not just a passive supporter
of ISIS, but was determined to further its activities by influencing
other individuals at various platforms.
50. The prosecution has also placed reliance on other material
seized from the digital devices in which various PDFs and videos
were found describing methods of preparing explosives and bombs. It
is further alleged that chats on Telegram group where the Appellant
was also a member, tutorial videos/ PDFs/ images for preparing
explosives were being shared. Similarly, the Appellant was a member
of many Telegram groups dealing with guns and 3-D printing of
weapons/guns. The material extracted from the digital devices of the
Appellant demonstrates that on Telegram groups the Appellant and
other individuals were discussing making of guns with the help of 3-D
printers as well as the digital images showing guns which can be
easily made by the 3-D printers with pictorial guides to make paper
cartridge. The material extracted from Samsung Galaxy J7 mobile
phone (D-202) of the Appellant is reproduced hereinunder:
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51. Learned Senior Counsel appearing on behalf of the Appellant
had placed heavy reliance on the judgment of Hon’ble Supreme Court
in Thawaha Fasal (supra) and more particularly on the following
paragraphs: –
“37. Taking the charge-sheet as correct, at the highest, it can be
said that the material prima facie establishes association of the
accused with a terrorist organisation CPI (Maoist) and their
support to the organisation.
38. Thus, as far as Accused 1 is concerned, it can be said he was
found in possession of soft and hard copies of various materials
concerning CPI (Maoist). He was seen present in a gathering
which was a part of the protest arranged by an organisation
which is allegedly having link with CPI (Maoist). As regards
Accused 2, minutes of the meeting of various committees of CPI
(Maoist) were found. Certain banners/posters were found in the
custody of Accused 2 for which the offence under Section 13 has
been applied of indulging in unlawful activities. As stated
earlier, sub-section (5) of Section 43-D is not applicable to the
offence under Section 13.
39. Now the question is whether on the basis of the materials
forming part of the charge-sheet, there are reasonable grounds
for believing that accusation of commission of offences under
Sections 38 and 39 against Accused 1 and 2 is true. As held
earlier, mere association with a terrorist organisation is not
sufficient to attract Section 38 and mere support given to a
terrorist organisation is not sufficient to attract Section 39. The
association and the support have to be with intention of
furthering the activities of a terrorist organisation. In a given
case, such intention can be inferred from the overt acts or acts of
active participation of the accused in the activities of a terrorist
organisation which are borne out from the materials forming a
part of charge-sheet. At formative young age, Accused 1 and 2
might have been fascinated by what is propagated by CPI
(Maoist). Therefore, they may be in possession of various
documents/books concerning CPI (Maoist) in soft or hard form.
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40. Apart from the allegation that certain photographs showing
that the accused participated in a protest/gathering organised by
an organisation allegedly linked with CPI (Maoist), prima facie
there is no material in the charge-sheet to project active
participation of Accused 1 and 2 in the activities of CPI (Maoist)
from which even an inference can be drawn that there was an
intention on their part of furthering the activities or terrorist acts
of the terrorist organisation. An allegation is made that they were
found in the company of Accused 3 on 30-11-2019. That itself
may not be sufficient to infer the presence of intention. But that
is not sufficient at this stage to draw an inference of presence of
intention on their part which is an ingredient of Sections 38 and
39 of the 1967 Act. Apart from the fact that overt acts on their
part for showing the presence of the required intention or state of
mind are not borne out from the charge-sheet, prima facie, their
constant association or support of the organisation for a long
period of time is not borne out from the charge-sheet.”
Based on the aforesaid decision it was argued that the mere
association or support to a terrorist organisation would not constitute
an offence under the UAPA. It is imperative for an accused to reflect
intention or a state of mind of constant intention and support for a
terrorist organization to be prosecuted under Section 38 and 39 of the
UAPA. It was further submitted that the prosecution has not
investigated the other persons with whom the Appellant was alleged to
have had the aforesaid conversations. It was also urged that the chats
would show that the other persons have contacted the Appellant and
that there could be a possibility that such persons were acting as a bait
in order allure and trap the Appellant by having those conversations.
52. It was further argued that the Appellant had transferred funds
from his bank account to one Md. Unais (PW-125), who thereafter
transferred the funds to one lady Ms. Afa Ibrahim. It was vehemently
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argued that the prosecution has not been able to place any material on
record with regard to the aforesaid lady’s connection with the ISIS.
53. In the considered opinion of this Court, the facts of the present
case are distinct from those which were the subject matter in the
aforesaid judgment, i.e., Thawaha Fasal (supra). In the present case
as has been highlighted previously, the Appellant admittedly in 2018
had taken an oath (Bayath) in the name of Abu Bakr al Baghdadi and
Abu al-Hasan al-Hashimi al-Qurashi. Abu Bakr al Baghdadi is
admittedly a well-known leader of ISIS and as per the chargesheet had
declared formation of “caliphate” in June 2014.
54. ISIS had been declared to be a terrorist organisation and judicial
notice can be taken of the fact that the world at large knows about the
activities of ISIS. The aforesaid chats further reflect the intention of
the Appellant to join ISIS (Dawlah) and was ready to perform Hijrah
(travel) for the same. In two sets of chats as recorded hereinbefore it
was the Appellant who is asking other persons for finding a way to
reach Dawlah and not the other way around as claimed by the learned
Senior Counsel for the Appellant. As already noted, the Appellant is
an educated person and was well-aware of the nature of activities of
ISIS. Moreover, it is not a case of passive support to a terrorist
organisation, but rather the chats, as highlighted hereinabove, show
that the Appellant was advocating Jihad in order to establish Khilafat
(“Caliphate)”. By doing so the Appellant was also trying to recruit the
individuals on these online groups for such acts.
Signature Not Verified
Digitally Signed
By:SHIWANI NEGI CRL.A. 871/2023 Page 62 of 64
Signing Date:10.01.2025
19:28:13
55. So far as the transfer of funds in the account of Md. Unais (PW-
125) is concerned, the Appellant will have sufficient opportunity to
explain the same before the learned Trial Court at an appropriate
stage.
56. In view of the aforesaid material placed on record along with
the chargesheet, this Court is of the considered opinion that the
mandate of Section 43(D)(5) of the UAPA is clearly applicable.
57. Under these circumstances, this Court is of the opinion that the
impugned order does not warrant any interference.
58. In view of the above, the present appeal is dismissed and
disposed of accordingly. Pending application(s), if any, are also
disposed of.
59. Needless to state that all the observations made in this judgment
are to satisfy this Court whether a prima facie case for bail is made out
or not qua the present Appellant. Nothing mentioned hereinabove is
an opinion on the merits of the case of the Appellant and the
observations made herein are for the purpose of present Appeal.
60. Copy of this judgment be communicated to the concerned Jail
Superintendent for necessary information and compliance.
Signature Not Verified
Digitally Signed
By:SHIWANI NEGI CRL.A. 871/2023 Page 63 of 64
Signing Date:10.01.2025
19:28:13
61. Judgment be uploaded on the website of this Court, forthwith.
AMIT SHARMA, J.
PRATHIBA M. SINGH, J.
JANUARY 10, 2025/sn/bsr
Signature Not Verified
Digitally Signed
By:SHIWANI NEGI CRL.A. 871/2023 Page 64 of 64
Signing Date:10.01.2025
19:28:13
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