Isabella Mariam

The High Court of Delhi Division Bench of Justice Subramonium Prasad and Justice Harish Vaidyanathan Shankar dismissed an appeal challenging the rejection of bail under the Unlawful Activities (Prevention) Act, 1967. The Court, after examining the material produced in the chargesheet and applying the statutory threshold under Section 43D(5) of UAPA, held that there existed reasonable grounds to believe the accusations were prima facie true. The Court concluded that the accused had abetted and incited terrorist acts and therefore, the statutory embargo under Section 43D(5) of the UAPA applied.

The Bench declined to grant relief to the appellant who had been in custody for nearly four years, citing the potential risk of evidence tampering and flight. The Court found sufficient material indicating association with terrorist groups and propagation of radical ideology through digital platforms. Consequently, the appeal was dismissed, reaffirming the stringent conditions under which bail can be granted under UAPA.

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The appeal was filed against the order dated 10.09.2024, passed by the Principal District and Sessions Judge, Patiala House Court, New Delhi, which had dismissed the bail application of the appellant. The appellant had been charge-sheeted under Sections 120-B, 121, and 122 of the Indian Penal Code, 1860 and Sections 13, 17, 18, 18B, 38, and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA).

According to the facts recorded, following the abrogation of Article 370 of the Constitution of India, various terrorist organizations, including Lashkar-e-Toiba (LeT) and The Resistance Front (TRF), conspired to launch targeted attacks on minorities, security forces, and political leaders. These conspiracies aimed to create unrest and fear in Kashmir and other parts of the country. TRF was alleged to be involved not only in violent attacks but also in radicalising local youth and disseminating provocative narratives.

It was alleged that digital platforms like Facebook, WhatsApp, Telegram, Instagram, and Twitter were extensively used for spreading radical content. The term "Over Ground Workers" (OGW) was cited in the records, indicating individuals who facilitated terrorist operations through recruitment and ideological propagation.

The specific allegation against the appellant was his association with a slain TRF/LeT member, Mehran Yaseen Shalla, killed in an encounter on 24.11.2021. Under the latter’s influence, the appellant allegedly created multiple social media groups such as Ansar Gazwat-UI-Hind (AGH) and Shaikoo Naikoo, used various Gmail IDs to express radical views, and incited vulnerable youth to join terrorist organizations like TRF.

The appellant was arrested on 30.12.2021 and remanded to custody by the Special Judge, UAPA, Srinagar. He was later produced before the Patiala House Courts on 04.01.2022 and remained in custody. The investigating agency filed a chargesheet on 18.06.2022.

The chargesheet contained screenshots of chats, news articles, social media posts, pictures of weapons, and images of slain terrorists. One such post stated:

"Once again the Incumbent JK Police has shown a cowardice act... Today’s so-called encounter at Pulwama and in Srinagar is fake... freedom fighters won’t differentiate between you and your near & dear ones... The perpetrators won't be spared..."

The material further included photographs and an audio clip of slain terrorist Mehran Yaseen Shalla quoting: "Ab jag uthe hai diwane duniya ko jaga kar dum lenge... Mein mujhahid ke safon mein shamil ho gaya hoon. Meri is tanzeem se achi tarah wakif honge jiska naam hai The Resistance Front" (TRF).

Counsel for the appellant argued that TRF was not designated as a terrorist organization under Schedule I of the UAPA at the time of arrest or chargesheet. Hence, the provisions under Sections 38 and 39 of UAPA were inapplicable. Further, no material existed to prove the appellant was part of TRF or that Shalla was a member.

It was argued that mere sharing of images did not constitute an offence under UAPA. It was also contended that there was no proof the appellant assisted Shalla in any terrorist activity, nor could he be held vicariously liable. The Counsel insisted that Section 15 (defining terrorist act) had not been invoked, and hence, Section 18 (punishment for conspiracy) did not apply.

On the other hand, the respondent’s Counsel, representing the National Investigation Agency (NIA), opposed the appeal stating that the appellant actively propagated radical information and endangered national security. The case, therefore, fell within the rigours of Section 43D (5) of the UAPA.

The Court examined the statutory framework under Section 43D(5) of the UAPA, quoting: "Provided that such accused person shall not be released on bail... if the Court... is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."

The Court cited Gurwinder Singh v. State of Punjab (2024) 5 SCC 403, noting: "The legislature has prescribed a low, ‘prima facie’ standard... This standard can be contrasted with the standard of ‘strong suspicion’ used in discharge applications."

It held that: "Bail must be rejected as a ‘rule’ if... the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true."

Referring to Watali and other precedents, the Court observed: "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."

The Court clarified: "For attracting Section 18, the involvement of the accused in the actual commission of terrorist act as defined in Section 15 need not be shown."

Quoting Union of India v. Barakathullah (2024 SCC OnLine SC 1019), the Court recorded: "For the purpose of considering the offence under Section 18, the commission of terrorist act as contemplated in Section 15 is not required to be made out..."

"...if there is any material or evidence to show that the accused had conspired or attempted to commit a terrorist act, or committed any act preparatory to the commission of a terrorist act, such material would be sufficient to invoke Section 18."

The Court further observed: "Section 18 is framed in such a broader way that even the usage of social media or any digital activity for the purpose of disseminating radical information and ideology falls within its ambit."

On the specific facts, the Court noted: "Material on record prima facie indicates the capability of the Appellant to commit an offence under Section 18 of the UAPA."

"...the Appellant is in a position of influence... may pose a flight-risk... Appellant also fails to satisfy the tripod test."

The Court also addressed the duration of custody: "Undoubtedly, the Appellant has been in custody for an approximate period of four years. However... there are witnesses whose identities have not been disclosed and would be at risk..."

It was concluded: "It cannot be said that there is no evidence against the Appellant that he was closely associated with slain terrorist Mehran Yaseen Shalla... disseminating information for inciting local youths... is sufficient to bring the Appellant in the ambit of Section 18."

With these observations, the appeal stands dismissed, along with pending application(s), if any.

The Court held: "This Court is of the opinion that the material on record indicates that the Appellant has abetted and incited the commission of terrorist act in the country which is punishable under Section 18 of the UAPA."

It further clarified: "The question as to whether the Appellant is guilty of an offence under Sections 38 and 39 of UAPA need not be gone into by this Court at this juncture."

The Bench noted: "Material does indicate that the Appellant was disseminating information for inciting local youths to indulge in activities which will lead to commit a terrorist act which is sufficient to bring the Appellant in the ambit of Section 18 of UAPA, thereby satisfying the test of rejection of bail under UAPA."

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Concluding, the Court recorded: "Considering the facts of the present case, this Court is not inclined to grant bail to the Appellant at this juncture."

However, the Court allowed liberty for future relief: "Keeping in mind that right to speedy trial has been held to be concomitant under Article 21 of the Constitution of India, it is always open for the Appellant to approach the Competent Court for the grant of bail if the trial does not commence in the near future or that there is an undue delay in completion of trial."

Accordingly: "With these observations, the appeal stands dismissed, along with pending application(s), if any."

Advocates Representing the Parties:

For the Appellant: Mr. Siddharth Satija, Mr. Sowjhanya Shankaran, Mr. Akash Sachan, Ms. Anuka Bachawat, Advocates

For the Respondent: Mr. Rajesh Mahajan, Special Public Prosecutor with Mr. R.K. Bora, Advocate, and DSP Surender Pal

Case Title: Arsalan Feroze Ahenger vs. National Investigation Agency

Neutral Citation: 2025: DHC:5522-DB

Case Number: CRL.A. 1087/2024

Bench: Justice Subramonium Prasad and Justice Harish Vaidyanathan Shankar