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.
Source: Barandbench
