Case Note & Summary
The appellant, Iqbal Ahmed Kabir Ahmed, was accused No. 3 in a case registered by the National Investigation Agency (NIA) for offences under the Indian Penal Code, the Unlawful Activities (Prevention) Act, 1967 (UAPA), and the Explosives Substances Act, 1908. The case stemmed from an alleged conspiracy involving accused No. 1, Naserbin Abubaker Yafai (Chaus), who was in contact with members of the banned terrorist organization Islamic State/ISIL. Accused No. 1 and accused No. 2, Mohd Shahed Khan, procured materials to prepare an Improvised Explosive Device (IED). The appellant was alleged to be a co-conspirator, and pursuant to disclosures made by co-accused, an electric switch board on which the IED was soldered was discovered from the appellant's house. Additionally, an oath (baith) owing allegiance to the banned terrorist organization was recovered from the appellant's possession. The appellant was arrested on 7th August 2016 by the Anti-Terrorism Squad (ATS) and later the investigation was transferred to the NIA. The appellant filed a bail application (Exhibit 141) before the Special Judge in NIA Special Case No. 3 of 2018, which was rejected on 27th May 2019. The appellant then appealed under Section 21 of the National Investigation Agency Act, 2008. The main legal issue was whether the appellant was entitled to bail given the stringent provisions of UAPA, particularly Section 43D(5) which imposes a bar on bail if the court finds reasonable grounds to believe the accusation is prima facie true. The appellant argued that there was no credible evidence linking him to the conspiracy and that the recoveries were planted. The respondent-State and NIA contended that the recoveries and the oath clearly established the appellant's involvement. The court analyzed the material on record, including the case diary and the report, and held that there were reasonable grounds to believe that the accusation against the appellant was prima facie true. The court noted that the recovery of the IED from the appellant's house and the oath of allegiance to ISIL were strong incriminating circumstances. Consequently, the court held that the bar under Section 43D(5) of UAPA applied and the appellant was not entitled to bail. The appeal was dismissed.
Headnote
A) Criminal Law - Bail - Unlawful Activities (Prevention) Act, 1967 - Section 43D(5) - Bar on bail - The court considered the scope of Section 43D(5) of UAPA which imposes a bar on grant of bail if the court, on a perusal of the case diary or the report, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. The court held that the bar operates unless the court finds that there are no reasonable grounds to believe the accusation is prima facie true. (Paras 10-15) B) Criminal Law - Bail - Unlawful Activities (Prevention) Act, 1967 - Prima facie case - The court examined the material on record including the recovery of an electric switch board with IED from the appellant's house and the oath of allegiance to ISIL. The court concluded that there are reasonable grounds to believe that the accusation against the appellant is prima facie true, thus attracting the bar under Section 43D(5) of UAPA. (Paras 16-25) C) Criminal Law - Bail - Explosives Substances Act, 1908 - Sections 4, 5, 6 - The appellant was charged under these sections for possession of explosive substances. The court noted that the recovery of the IED from the appellant's house prima facie establishes his involvement in the conspiracy. (Paras 26-30)
Issue of Consideration
Whether the appellant is entitled to bail under the stringent provisions of the Unlawful Activities (Prevention) Act, 1967, particularly in light of the bar under Section 43D(5) of the said Act, and whether the Special Judge erred in rejecting the bail application.
Final Decision
The appeal is dismissed. The order of the Special Judge rejecting the bail application is upheld.
Law Points
- Bail under UAPA
- Section 43D(5) UAPA bar on bail
- Prima facie case test for bail in terror offences
- Conspiracy under Section 120B IPC
- Recovery of incriminating material
- Oath of allegiance to banned terrorist organization
