The Special NIA Court, hearing a case on November 3, 2022, stated that under Section 20 of the Unlawful Activities (Prevention) Act (UAPA), “mere possession” of Jihadi literature is not considered a crime unless any terror act is conducted supporting the philosophy.
Special Judge, Dharmesh Sharma ruled and noted, “Further, to hold that mere possession of Jihadi literature having a particular religious philosophy would amount to an offense, though such literature is not expressly or specifically banned under any provision of law, if not even fathomable in law, unless and until there is material about the execution of such a philosophy so as to commit terrorist acts.”
The court, in support of the statement, highlighted that such proposals contradict the freedoms and rights assured by Article 19 of the Indian Constitution. The ruling comes in a case where the NIA had accused eleven in relation to disseminating the ideology of ISIS, a banned terrorist organization, via social media platforms.
The Special Judge noted that there’s no solid evidence of them all being active members of the group, though they “probably” aspired to join the aforementioned terrorist group.
According to Bar and Bench, one of the accused, a 26-year-old, was found guilty of providing funding for terrorist activities, but the court added that he was not associated with any of the activities carried out by ISIS.
All of them are tried under Sections 120B (Criminal Conspiracy) and 121A (Waging War Against the Government of India) of the Indian Penal Code (IPC), and Sections 17 (Raising Funds for a Terrorist Act), 18 (Conspiracy), 18B (Recruiting of any Individual for a Terrorist Act), and 20 (Association with a Terrorist Organization). Apart from this, Sections 38, 39, and 40 of the UAPA have also been imposed on the 11 accused.
As per the court, on 8 of the 11 accused, it has found a “prima facie case” under Section 120B of IPC with Section 2(o), Section 13 of the UAPA, and Sections 38 and 39 of the UAPA.
“No physical act has been attributed to them leading to commission of a terrorist act or any act or omission shown to be preparatory to doing of a “terrorist act”, and it is imperative to point out that we have already referred to decision of the Supreme Court in the case of Zameer. Ahmed Laitful Rehman Sheikh v. State of Maharastra, (supra) wherein it was held that commission of a physical act is core condition of applicability of section 15 of the Act. Similarly, there is no material worth its salt that would show that the accused persons were conspiring together to commit any terrorist act within the scope and ambit of Section 18”, the court’s order further cites.
The court then added that none of the ammunition, procured arms, or explosive substances were collected from the accused, adding that there’s no proof of them even acquiring the same.
“Further, in so far as Section 18B of the UA (P) Act is concerned, there is no evidence that any of the accused, individually or in association with any of the other accused persons, was entrusted with the task of soliciting details of like-minded persons, conducting interviews, taking money, or even facilitating their onward journey to ISIS controlled territories. “Section 18B of the UA(P) Act contains the word ‘recruitment’ which implies certain kind of organized activity, process or pattern for finding out suitable candidates to join the terrorist organization and there is nothing in the messages that would demonstrate that any such kind of recruitment process was ever conducted by any of the accused persons,” it further added.
Adding to the above statement, the court called the ideology of the accused disdainful, despicable, and contrary to the ideals of the Indian constitution, but they haven’t indulged in any violent activity. The court notified some of the accused were directly or indirectly in connection with some of the operatives of ISIS.
“Though it appears that the accused persons except for one were highly radicalised and were by all means in connection with some known and unknown operatives of the ISIS, and deliberately, purposely and actively disseminating information about the philosophy and ideology of the said organization, they cannot be prima facie held as perpetrators of committing some or the other terrorist act or actions”.
