S Nashidul Hamsafar v Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943 CRL.A NO. 402 OF 2021 AGAINST THE ORDER/JUDGMENT IN CRMP 22/2021 OF SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM, ERNAKULAM** **APPELLANT:** S NASHIDUL HAMSAFAR, AGED 26 YEARS, S/O. ABDUL NAZAR, KARIKKADANPOIL, MUNDERI P.O KALPETTA, WAYANAD DISTRICT BY ADVS. SRI. S.RAJEEV SRI. K.K.DHEERENDRAKRISHNAN SRI. V.VINAY SRI. M.S.ANEER ## **RESPONDENT:** UNION OF INDIA REP.BY NATIONAL INVESTIGATING AGENCY KOCHI REP.BY STANDING COUNSEL, NATIONAL INVESTIGATING AGENCY, HIGH COURT OF KERALA ERNAKULAM 682 031 [RC NO.02/2016/NIA/KOC] ## **OTHER PRESENT:** SRI.ARJUN AMBALAPATTA, SENIOR GP FOR NIA CASES **THIS CRIMINAL APPEAL HAVING FINALLY HEARD ON 02.08.2021, THE COURT ON THE 04.08.2021 DELIVERED THE FOLLOWING:** **- 2 -** **Crl.A.No.402 of 2021** **K. Vinod Chandran & Ziyad Rahman A.A., JJ. ------------------------------------------Crl.A.No.402 of 2021 --------------------------------------------Dated, this the 04[th] August 2021** ## **JUDGMENT** **Vinod Chandran, J.** **The appellant is the 16[th] accused in S.C No. 1/19/NIA pending before the Special Court for Trial of NIA Cases, Ernakulam. The appeal is against the dismissal of a bail application in which the grounds raised were (i) the injuries suffered by the appellant in an earlier accident which requires Ayurvedic treatment,(ii) the medical complaints of his aged parents, (iii) the fact of the applicant having been continued in judicial custody for two and half years, (iv) trial having not yet commenced, (v) the further delay that would again ensue in the commencement and completion of trial and (vi) the factum of A17 who was arrested along with the appellant having been released from custody.** **- 3 -** **Crl.A.No.402 of 2021** **2. We have heard Sri.S.Rajeev, learned Counsel for the appellant and Sri Arjun Ambalapatta, Senior Public Prosecutor(NIA) for the respondent.** **3. Learned Counsel for the appellant submits that the application for bail was never considered on merits by this Court and the earlier appeal was withdrawn by the appellant. A Full Bench of this Court in** _**Younus Aliyar v. Sub Inspector of Police [2016(3)KLT 877]**_ **resolved an apparent conflict between two decisions of Coequal Benches as to the effect of the proviso to subsection(5) of S.43D of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The Full Bench had laid down clear guidelines as to how bail applications at various stages are to be considered and made a specific rider that the principles thus enunciated would all the same be subject to the decisions of the Hon'ble Supreme Court interpreting Articles 21 and 22 of the Constitution of India. Though later to it, the decision of the Hon'ble Supreme Court in** _**Union of India v. K.A Najeeb [(2021) 3 SCC 713]**_ **held that the statutory restriction under S.43D(5) of the UAPA, does not oust the power of the Constitutional Courts to grant bail on grounds of** **- 4 -** **Crl.A.No.402 of 2021** **violation of Part III of the Constitution of India. It is argued that the appellant has been continuously incarcerated for the last two and half years and a mere reading of para 19 of the impugned order, reveals that there is no chance of the trial being commenced and concluded in the near future.** **4. It is further argued that the original crime was registered as against A1 and A2, the former of whom had left India with his wife and child and joined the Islamic State of Iraq and Syria (ISIS). The 2[nd] accused was a close associate of A1 and she has been handed down an imprisonment for seven years which sentence granted by the trial Court, though reversed by this Court in Annexure-3, was restored by the Hon'ble Supreme Court by Annexure-4. Further it is pointed out that A17 who left India along with the appellant was arrested and now is released. The medical condition of the appellant and his parents were also urged in favour of considering the grant of bail. It is pointed out that the High Court having not considered the application on merits a proper consideration on the grounds urged is possible in the present appeal.** **- 5 -** **Crl.A.No.402 of 2021** **5. The learned Special Prosecutor would stoutly oppose the grant of bail. It is pointed out that earlier, the bail application filed by the appellant after the filing of the final report was dismissed on entering an opinion that there are reasonable grounds for believing the accusation against the appellant to be** _**prima facie**_ **true. There is absolutely no change in circumstance which would warrant consideration of a subsequent bail application on merits. The appeal filed earlier, to this Court was withdrawn realizing the futility in pressing the same. The prayer at that point was confined to a fresh application for bail on medical grounds which was allowed by this Court. The appellant cannot be allowed to expand the scope in the subsequent application by putting forth the contention on merits which were already considered and rejected. The offences charged against the appellant has no parallel to those on which A2 was convicted and sentenced. A17 was released since he had returned on his own volition, succumbing to the pressure exerted by his family and friends. A17 had turned approver and hence his release on pardon. A16, unlike A2 had actively participated in organizing meetings and carrying out** **- 6 -** **Crl.A.No.402 of 2021** **propaganda to further the object of ISIS, a proscribed terrorist organization. If released on bail, A16 would definitely continue the propaganda and recruit the young and gullible and would attempt to again join the terrorist organization; his first attempt having been foiled at the last moment. The learned Prosecutor also points out that the medical condition either of his own or his parents were long existing and despite that he attempted to go abroad and join a terrorist organization. It is argued that the claim raised by the applicant under Article 21 and 22 has to be viewed in the context of the appellant's alleged acts being in defiance of the values and principles enshrined in the Constitution of India. The appeal has to be rejected; strenuously urge the Prosecutor.** **6.** _**Younus Aliyar**_ **(supra) answered the reference and held that when once the NIA Court or the appellate Court forms an opinion that there are reasonable grounds for believing that the accusation against the accused person is** _**prima facie**_ **true on the basis of the case diary or the report made under S.173 of the Cr.PC, the same is not liable to be overlooked while dealing with a** **- 7 -** **Crl.A.No.402 of 2021** **subsequent bail application or appeal; unless there are further materials or circumstances relied upon in support of that application. It was held that when subsequent bail applications are filed during the course of investigation, the entire case diary can be perused to consider the new materials or circumstances pointed out in the subsequent bail application and this would take in consideration of any matter left unconsidered in the earlier round. However, when a final report has been filed under S.173 Cr.PC and a bail application or appeal has been rejected after that, finding a prima facie case to exclude grant of bail under the proviso to S.43D(5), then a subsequent consideration would stand excluded. It was also observed that if there is a further investigation ordered and a further report is filed, which is then treated as the final report then that could also be subjected to fresh scrutiny for grant of bail. The Full Bench, as argued by the learned Counsel for the appellant did not place a rider to the aforesaid view but only observed that these principles are in furtherance of the right of the accused as protected in terms of the judgments of the Hon'ble Supreme Court interpreting** **- 8 -** **Crl.A.No.402 of 2021** **Articles 21 and 22 of the Constitution of India.** _**K.A.Najeeb**_ **(supra) was a reiteration of such principles and the power of Constitutional Courts to grant bail; even melting down the rigour of the proviso under S.43D(5) was emphasized; when there is no likelihood of trial being completed within a reasonable time and a period of incarceration already undergone has exceeded a substantial part of the prescribed sentence.** **7. On the aspect of delay we have looked at paragraph 19 of the impugned order. The Special Court has specifically observed that the charge would be framed on 05.04.2021 and that the trial can be expedited. The Court also noticed that trial in three cases are scheduled to commence in April itself and hence practically speaking the conclusion of the trial in the instant case would probably take one year. It has also been observed by the NIA Court that the trial is not delayed by reason of any lethargy on the part of the prosecution. The NIA Court having specified the time frame we do not think the first limb of the principle in** _**K.A.Najeeb**_ **(supra), as to likelihood of trial being not completed within a reasonable time; so as to exceed a substantial portion of** **- 9 -** **Crl.A.No.402 of 2021** ## **the prescribed sentence arise at all.** **8. The appellant herein was arrested 18.09.2018 and he has remained in judicial custody for almost three years. The offences alleged against the appellant are under S.120B r/w 125 of IPC and Sections 38 and 39 of UAPA. The punishment for the offences except that under S.120B range from rigorous imprisonment of seven years to ten years. It has also to be observed that there is no warrant to assume at this stage that the sentences handed down under each of the provisions would not be the maximum and the court would in its discretion allow the sentences to run concurrently. We do not think the appellant satisfies the second limb of the extenuating circumstance pointed out in** _**K.A.Najeeb**_ **(supra) as to having now exceeded a substantial part of the prescribed sentence. If, in fact the trial takes a year as noticed by the NIA Court, even then it cannot be said that the appellant would have by then exceeded a substantial portion of the prescribed sentence.** **9. The objection filed by the respondent lists out the previous bail applications filed by the appellant. Crl.M.P No.208/2018 was filed at the investigation stage** **- 10 -** **Crl.A.No.402 of 2021** **which was rejected by the Special Court. When the appeal was pending before this Court, the charge sheet was filed and the appeal was disposed of permitting the appellant to move the Special Court afresh. Crl.M.P No.40/2019 was then filed which was rejected by a considered order dated 12.04.2019 finding the accusations against the appellant to be** _**prima facie**_ **true. An appeal therefrom stood withdrawn as is seen from Annexure II judgment. A reading of the judgment would indicate that the NIA had specifically relied on** _**Younus Aliyar**_ **(supra) and the appellant had thought it fit to withdraw the appeal; presumably on the realization of the futility in pressing the same. The decisions in** _**K.A.Najeeb**_ **(supra) does not change the legal position in any manner and hence a second application would not be maintainable, especially in the context of the liberty granted to the appellant being confined to medical grounds.** **10. Despite our finding on the maintainability of the second bail application, for completeness we looked at the merits of the matter. We do not find any parallel with the case against A2. Though the charges framed against A2 were under S.122 IPC and Sections 38, 39 and 40** **- 11 -** **Crl.A.No.402 of 2021** **of the UAPA, the conviction sustained was only for the offence under S.38 of UAPA. A2 had merely followed A1 who was actively propagating the ideology of the Islamic State and advocating, among other things war against non-Muslims. A2 was arrested at the Airport when she was attempting to fly out, to join A1, which attracts the offence under S.38 of the UAPA. But it was found that she had not taken any steps to wage a war, attempted or abetted waging of such a war against any Asiatic Power in alliance with or at peace with the Government of India, thus dropping the charges under S.125 IPC. It was also found that there was no material evidence on record to prove the ingredients of the charges under S.39 and 40 of the UAPA. It was hence A2 was handed down a sentence of seven years.** **11. We have gone through the report under S.173 Cr.PC, as produced across the Bar by the learned Counsel for the appellant. We find the allegations against A17 to be more comprehensive than that found proved against A2, as discernible from Annexure III judgment of this Court in the appeal filed by A2. A16 together with A17 had been, from April, 2017, actively involved in hatching a criminal** **- 12 -** **Crl.A.No.402 of 2021** **conspiracy over various encrypted social media platforms with A1, A10, A14 and others who have physically joined ISIS at Nangarhar province of Afghanistan. In furtherance of the said conspiracy during May 2017, A16 and A17, who had become members of ISIS had conducted conspiracy classes/meeting at Wayanad for promoting the objectives of ISIS in furtherance of the activities of the proscribed terrorist organization. A16 and A17, while in India and in Muscat continued to conduct classes/meetings in an attempt to motivate their friends, in person and through social medial platforms to sympathize with the cause of ISIS and actively involve in its propagation.** **12. Again in furtherance of waging war against the Asiatic Power in alliance with the Government of India both accused traveled to Tehran during October 2017. A17 returned to India due to intervention of his family and friends while A16 traveled to Afghanistan with the intention of physically joining the absconding accused and ISIS. In the present case, from the report under S.173 we find** _**prima facie**_ **the existence of the ingredients of the offence under S.123 IPC and Sections 38 and 39 of UAPA. The appellant was arrested at Afghanistan and imprisoned** **- 13 -** **Crl.A.No.402 of 2021** **and later deported to India. The appellant was arrested on setting foot back in India. The allegations against the appellant are more serious than that found against A2 and he had attempted to join the ISIS to wage war against an Asiatic power in alliance with the Government of India. The attempt did not achieve fruition only because of it being foiled by his arrest by the Afghan authorities. The forensic examination of the digital device seized from the possession of the appellant has been completed by C-Dac and a report is submitted before Court. We have been informed that the case is posted on 03.08.2021 for framing charges. We find no reason to grant the appellant bail at this juncture having found** _**prima facie**_ **that the accusation against the appellant are true.** **13. The Special Court has noticed that the appellant's ailments arising from an earlier accident are cared for in the Prison and he could seek for any treatment required and permissible under the Prison Rules. As pointed out by the Prosecutor the medical condition of his parents are long existing and it did not dissuade him from proceeding to wage a war against peaceful nations. The case of A17 is quite distinct and he has been treated** **- 14 -** **Crl.A.No.402 of 2021** **as an approver which disables the appellant from claiming any similar treatment.** **We find no compelling reason to grant bail. On maintainability as also on merits we reject the appeal.** **Sd/K. Vinod Chandran Judge** **Sd/Ziyad Rahman A.A. Judge** **jma/-** **- 15 -** **Crl.A.No.402 of 2021** ## **APPENDIX** ## **APPELLANT'S ANNEXURES:** **ANNEXURE I: TRUE COPY OF THE MRI REPORT DATED 06.11.2019 AND MEDICAL PRESCRIPTION ISSUED FROM THE GOVERNMENT MEDICAL COLLEGE ANNEXURE II A TRUE COPY OF THE JUDGMENT IN CRL. APPEAL NO. 465/2020 DATED 26.06.2020 PASSED BY THIS HON'BLE COURT** **ANNEXURE III A COPY OF THE FINAL JUDGMENT PASSED BY THIS HON'BLE COURT IN CRL.APPEAL NO.506/2018 ON 04.10.2018** **ANNEXURE IV A COPY OF THE JUDGMENT PASSED BY THE HON'BLE APEX COURT IN CRL.APPEAL NO.1199/2019 AND 1200/2019 (COMMON ORDER) DATED 02.08.2019**