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Case Name:  Ammar Abdul Rahiman v. National Investigation Agency  

Case No.: CRL.A. 79/2024 & CRL.M.A. 2650/2024 

Dated: May 06, 2024 

Quorum: Justice Suresh Kumar Kait and Justice Manoj Jain 

 

FACTS OF THE CASE: 

The Islamic State of Iraq and Syria (ISIS) was known to be affiliated with a man named Mohammed Ameen Kathodi@ Abu Yahya (A-1), who was reportedly running multiple ISIS propaganda channels on several secure social media platforms. This information was deemed credible and reported to the Central Government. He had been indoctrinating naive and credulous Muslim adolescents and spreading the violent Jihadi doctrine of ISIS through these means.  

According to the investigative agency, he (A-1) and his friends intended to carry out a religious pilgrimage, or “Hijrah,” to areas under ISIS control and Jammu and Kashmir (J&K) in order to commit acts of terrorism. They had obtained virtual numbers and phoney SIM cards in order to create multiple identities on secure social media chat platforms. They then used these to communicate with other like-minded individuals in order to raise money for funding ISIS operations and to carry out anti-national crimes in India. 

On March 15, 2021, three individuals were taken into custody: Abdul Karim Anwar (A-2), Rahees Rasheed (A-3) and accused Mohammed Ameen Kathodi @ Abu Yahya (A-1). Their involvement was made clear by the evidence gathered for the investigation, which identified them as ISIS members—a terrorist group that is outlawed. On September 8, 2021, the National Investigating Agency (NIA) issued the first chargesheet against them, alleging a variety of violations covered by the Unlawful Activities (Prevention) Act, 1967 (better known as “UAPA”) and the Indian Penal Code.  

The appellant (A-10) in this case was taken into custody on August 4, 2021, and on January 28, 2022, a supplemental chargesheet about him and the other accused parties was submitted. 

 

LEGAL PROVISION: 

Section 120B of IPC- If there is no specific provision in this Code for the punishment of such a conspiracy, then anybody found to be a party to a criminal conspiracy to commit an offence that carries a sentence of death or imprisonment for a period of two years or more would be punished as though they had assisted in the commission of the offence. 

Section 121A of IPC- Anybody who, whether inside or outside of India, plans to carry out any of the offences listed in section 121 or plots to intimidate the Central Government or any State Government by using force or the threat of using force will be imprisoned for life or for ten years. 

Section 17 of UAPA- -Anyone who, whether directly or indirectly, raises, provides, or collects money for any person or people, whether from legal or illicit sources, or tries to provide to, raises, or collects money for any person or people knowing that the money is likely to be used, in whole or in part, by that person or people, or by a terrorist organisation, terrorist gang, or by an individual terrorist, to commit a terrorist act, whether or not the money was actually used for the commission of the act, shall be punished with a minimum sentence of five years, but it may be extended to life imprisonment. 

Section 38 of UAPA. Offence relating to membership of a terrorist organisation. An offence related to membership in a terrorist organisation is committed by someone who identifies or claims to be linked with one with the objective of advancing the operations of the organisation 

 

CONTENTIONS OF THE APPELLANT: 

The learned counsel for the appellants strongly contended that the appellant, who is about thirty years old, is a law-abiding individual with strong social ties and no criminal history. It is emphasised that the main accusations levelled against the accused are that his sister-in-law (A4) radicalised him to support ISIS, and that his phone contained multiple photos demonstrating that he had access to extreme sermons, ISIS-related videos, and accounts on Instagram that supported the group.  

The fact that he was seeing content that had been downloaded into his electronic devices would not be significant in and of itself because there is no proof that he has ever shared, acted upon, or taken any action related to the content. 

It is also asserted that, of the approximately 1000 pages that the involved Forensic Labs claim to have recovered from his two mobile phones, the prosecution appears to be relying on six pages of photographs and one page of browser history (D-140). He has never acknowledged being a member of, engaged in, or been connected to any terrorist group, despite the fact that pictures and online history have been recovered. 

It is further stated that the mere fact that charges had been filed would not prevent bail from being granted, even though it would be extremely difficult for any accused person to get bail in such a case.  

It is argued that the learned Trial Court should have conducted a surface analysis of the evidence’s probative value even though the charges had been established. If this had been done correctly, it would have become evident to the Trial Court that there was no admissible evidence, indicating a prima facie case against the accused.  

 

CONTENTIONS OF THE RESPONDENTS: 

The argument is that the chargesheet was presented to the appropriate court regarding the appellant on January 28, 2022, and the learned trial court determined the charges against him on October 31, 2022, specifically noting that there was a prima facie case for offences under Section 120B read with Sections 38 and 39 of UAPA read with Section 2(o) and Section 13 of UAPA.  

It was also argued that A-1 Mohammed Ameen Kathodi@ Abu Yahya had already passed away, according to the information provided regarding the accusations made against the appellant and his co-accused. A-2 Mus’Hab Anwar and A-3 Rahees Rasheed were freed on default bail, and A-8 Obaid Hamid was released on bond because he had not been charged with any offences covered by Chapter IV or Chapter VI of the UAPA. 

It is asserted that the thorough investigation unequivocally reveals the existence of a criminal conspiracy involving all of the accused, and that the Investigating Agency has successfully deciphered this conspiracy with the aid of several pivotal events. 

Four of the appellant’s mobile devices are allegedly found during the alleged search of their residential property on August 4, 2021, in accordance with Search and Seizure Memo (D-76). For digital data extraction, these were forwarded to CERT-In. When the report and data from these digital devices were carefully examined, it was discovered to contain a number of incriminating materials, including images of different Muslim extremist preachers and movies from ISIS.  

In 2015, it was argued that ISIS was declared a terrorist organisation and that, despite this, there was sufficient evidence in the record to support the appellant’s continued affiliation with and support of the organisation. ISIS is listed as a banned terrorist organisation under the First Schedule of the United Antiterrorism Provisions Act (UAPA), with serial number 38. The claim also makes reference to social media material that was acquired from the accounts of A-10 and his sister-in-law/co-accused, Deepthi Marla (A-4). It was established that A-4 and A-6 had talked about their intentions for the Hijrah, and that A-10 was a part of this plot.  

 

COURT’S ANALYSIS AND JUDGMENT: 

According to the court, they were also aware of Section 43-D(5) of the UAPA, which establishes a kind of restriction and limitation on the granting of bail in the event that the accused has committed offences covered by Chapter IV and/or Chapter VI of the UAPA and the prosecution’s case against them is presumed to be valid.  

This Court can still very well contemplate granting bail under the aforementioned circumstances, even though the allegations have been established and the order in question has not been contested. We might also refer to Chandeep Singh (above), where it was noted that the trial court has a duty to consider the role of the accused by carefully reading the complaint and taking into account the limitations imposed by Section 43-D(5) of UAPA, adding that bail cannot be denied simply because the charges have been filed.  

As a result, it was clear that the court in a UAPA case might take bail into consideration even after the charges were established. The right to request bail is unalienable and may be used at any time. It never goes out of style. 

He never had access to the texts that were sent between him and his co-accused, so he cannot be held accountable for them. To claim that someone was operating in support of a prohibited terrorist group would be impossible if all they did was follow news reports on the Middle East and Israel-Palestine conflict or listen to hate speeches from radical Muslim preachers.  

In light of this, it appears incorrect and inappropriate to use Sections 38 and 39 of the UAPA. The court ruled that the statutory bar under Section 43-D (5) would only apply in cases where the accused person’s offence is covered by either Chapter IV or Chapter VI of the UAPA. The appellant has not been accused of committing any crimes under Chapter IV, and in light of what we have already discussed, we believe that the evidence in the record does not point to the appellant having committed any crimes under UAPA Sections 38 or 39, which are under Chapter VI.  

The appellant was ordered to be released on bail under any terms and restrictions that the concerned learned Special Court deemed appropriate and fitting after the court granted the current appeal. The prosecution may request the cancellation of bail without bringing this case before this court if there is any violation of any condition set forth by the learned Trial Court, or if the appellant makes any direct or indirect threats or attempts to influence any witness, or if the appellant tries to delay the trial.  

The court further stated that the aforementioned remarks were only intended to be used in determining the bond amount and were tentative in nature.  

The statements above, which were clearly not a conclusive statement regarding the merits of the case, will not persuade the Learned Trial Court. The trial court would have the freedom to reach any decision following a thorough review of the material, as the court has limited its proceedings to the mere claims thus far.  

 

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Judgment reviewed by Riddhi S Bhora. 

Click to view judgment.