Mere possession of Osama bin Laden photos, ISIS flags not crime under UAPA: Delhi High Court

The Delhi High Court recently observed that mere possession of photographs of Osama bin Laden, ISIS flags or accessing the lectures of hardline Muslim preachers is not a crime under the Unlawful Activities Prevention Act (UAPA) [Ammar Abdul Rahiman v National Investigation Agency]. .The Court said that mere possession of such material is not enough to brand a person as a member of a terrorist organisation or to conclude that he/she is furthering the activities of a terror group like ISIS..A Division Bench of Justices Suresh Kumar Kait and Manoj Jain said that these images/ videos/ photographs can give some glimpse of what was travelling through the person’s mind but they fail to establish that he was acting in furtherance of activities of ISIS.“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 Court observed..It said that in today’s electronic era, such type of incriminating material is freely available on the internet and even downloading the same would not be sufficient to hold that the person has 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. Though such act may give us some insight about his mindset but when we talk about a penal provision which, in essence, takes away the liberty of anyone and where even grant of bail becomes a sort of exception, the prosecution needs to have some extra ammunition in the shape of decipherable and tangible material,” the Court said. It further noted that there was nothing to suggest that after downloading the material, the accused, Ammar Abdul Rahiman, had in any manner disseminated such information to anyone or had put any such information on his social media account or in public domain.“In such a situation, it would be very difficult, at this stage, to come to a conclusion that the appellant had associated himself with a terrorist organization or that was professing to be associated with such terrorist organization. We are also unable to find any material which may indicate that he was giving support to such terrorist organization,” the judgment stated. .The Bench made the observations while granting bail to Rahiman who was charged with offences under Sections 38 and 39 of the UAPA and offences under Indian Penal Code (IPC) as well.The allegation against Rahiman was that he communicated with other radicals and planned to take Hijra to ISIS controlled territory to join ISIS.The National Investigation Agency (NIA) alleged that Rahiman associated himself with ISIS and incriminating contents like videos and images related to ISIS were recovered from his digital devices and social media account.It was the agency’s case that these materials reflected his inclination towards violent Jihad and established that he was a member of proscribed terrorist organization ISIS and hatched conspiracy to support the terror group..The Court considered the case and held that invocation of Sections 38 and 39 of UAPA against Rahiman was “erroneous and misplaced”.It was of the view that at best, Rahiman could be said to be a highly radicalised person who believed in the ideology of ISIS, a banned terrorist organisation but such fascination cannot be dubbed as if he was associated with the terror outfit and was furthering its cause.The Bench said that merely because Rahiman was following some news items related to Middle-East and Israel Palestine conflict or had been accessing hate speeches of hardline Muslim preachers, would not be enough to hold that he was acting in furtherance of a banned terrorist organisation.In its detailed judgement, the Court also distinguished between an offence under Section 10 of UAPA and Sections 38 and 39 of the Act.While Section 38 deals with offence relating to membership of a terrorist organisation, Section 39 is about offence relating to support given to a terrorist organisation.Section 10 imposes penalty for for being member of an unlawful association. This provision makes mere association with the banned group liable for punishment.The Bench noted that for an offence under Sections 38 and 39, there is a prerequisite of mens rea and this prerequisite is in direct contrast to Section 10 which stipulates that if an association is declared unlawful, a person who is a member of such association would be liable for punishment.“While Section 10 penalizes mere membership or association with any unlawful association, Section 38 and Section 39 make such association penal only when the association or support, as the case may be, is done in furtherance of the activities of such terrorist organization… However, in view of specific language of section 38 and section 39 of UAPA, the aspect related to intention is required to be established, even for making out a prima facie case. There is no room for guess work,” the Court explained.It further noted that the statutory bar contained in Section 43D(5) of the UAPA would also not come into play because the accused has not been charged with an offence under Chapter IV of the UAPA and the bar applies only to offences under Chapters IV and VI.“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..Senior Advocate Nitya Ramakrishnan along with advocates Archit Krishna, Tamanna Pankaj and Stuti Rai appeared for the accused.Additional Solicitor General (ASG) Aishwarya Bhati along with Public Prosecutor Zeenat Malick, Special Public Prosecutor Akshai Malik, advocates Rustam, Akshay Sehgal, Khawar Saleem, Arun Kumar and Poornima represented the NIA..[Read Judgment]