Delhi HC Denies Bail To Former PFI Chairman E Abubacker

Introduction

While perusing all the materials of this recent, remarkable, relevant and rational judgment titled Abubacker E vs National Investigation Agency in CRL.A. 623/2023 & CRL. M.A. 20963/2023 and cited in Neutral Citation No.: 2024:DHC:4415-DB that was reserved on 30.04.2024 and then finally pronounced most recently on 28.05.2024, the Delhi High Court dismissed the plea that had been moved by Abubacker E who is the former Chairman of the Popular Front of India (PFI) who was seeking bail in the UAPA case that was being probed by the National Investigation Agency. We need to note that a Division Bench comprising of Hon’ble Mr Justice Suresh Kumar Kait and Hon’ble Mr Justice Manoj Jain dismissed the appeal that had been moved by Abubacker who sought bail on the merits of the case as well as also on medical grounds. It must be mentioned here that Abubacker is currently in judicial custody of the case. We need to recollect that he was arrested by the agency during a massive crackdown on the banned organization in 2022.

Factual Background

At the very outset, this precise, pragmatic, peculiar and progressive judgment authored by Hon’ble Mr Justice Manoj Jain for a Division Bench of the Delhi High Court comprising of Hon’ble Mr Justice Suresh Kumar Kait and himself sets the ball in motion by first and foremost putting forth in para 1 that, “Appellant has challenged order dated 09.06.2023 (Order dated 09.06.2023 passed by learned Addl. Sessions Judge-03 (New Delhi) Patiala House Courts, New Delhi in RC 14/2022/NIA/DLI) whereby he has been denied bail.”

To put things in perspective, the Division Bench envisages in para 3 that, “The Central Government had credible information that the members, office-bearers and cadres of Popular Front of India (PFI) along with others were conspiring, raising or collecting funds within India or from abroad for committing or getting committed terrorist acts in various parts of India, including States of Kerala, Tamil Nadu, Karnataka, Uttar Pradesh and Delhi etc. FIR was accordingly registered at Police Station NIA on 13.04.2022 for commission of offences under Section 120-B & 153-A IPC and under Section 17, 18, 18B, 20, 22, 38 & 39 of the Unlawful Activities (Prevention) Act, 1967 (in short UAPA) indicting various members of PFI.”

As we see, the Division Bench specifies in para 4 that, “Name of appellant Abubacker E. also figured in such FIR. He has been claimed to be integral part of its National Executive Council (NEC).”

It cannot be glossed over that the Division Bench lays bare in para 69 that, “PFI was notified as unlawful association vide notification dated 27.09.2022 and immediately thereafter Unlawful Activities (Prevention) Tribunal was constituted and the Hon’ble Tribunal also came to the conclusion that there was sufficient cause for declaring PFI and its associates as unlawful association. While reaching such conclusion, the Hon’ble Tribunal observed that PFI had taken up clandestine operations which were certainly detrimental to the sovereignty and integrity of the country. It also observed that activities of such unlawful association are conducted under cover and in a clandestine manner and, therefore, in order to unearth the truth, the Tribunal had to pierce through the veil of secrecy to reach the goal and in the process, some inferences were drawn from the acts done by such organization, over the time. After careful perusal of the entire evidence produced by the Union of India, the Hon’ble Tribunal concluded that such evidence was irrefutable in nature and carried enormous weight.”

Most remarkably, the Division Bench underscores in para 84 stating that, “Once any such organization is declared as ‘terrorist organization’ or ‘unlawful association’, as the case may be, certain additional consequences may flow and emanate therefrom but merely because these organizations were not declared so at the relevant time would not mean that the acts of terrorism committed by them would stand disregarded and that the accused would be absolved of any prosecution. If such defence contention is accepted then it would lead to absolute absurdity and irrationality as in such a situation, any individual or association or organization could continue conspiring and doing terror activities, detrimental to the unity and sovereignty of the country, and then seek immunity from prosecution on the premise that it had not been declared so at the earlier point of time. This could never have been the intention of the legislature while bringing in UAPA.”

While citing the relevant case laws, the Division Bench propounds in para 87 that, “We have already taken note of the statements of various witnesses and at this initial juncture, we are unable to hold that such weapon- training was merely for protecting the community in case there was any communal violence unleashed against them, as allegedly apprehended. In Redaul Husain Khan Vs. National Investigation Agency (2010) 1 SCC 521, it has been observed that merely because a particular organization had not been declared as an unlawful association at the time of the arrest of the accused, it could not be said that such organization could not have indulged in terrorist act or that accused could not have knowledge of its such activities. Moreover, in Arup Bhuyan Vs. State of Assam (supra), it has been categorically observed that in context of Section 10 of UAPA, mere membership of a banned organization would be sufficient incriminating material and there was no requirement for the prosecution to show the existence of any overt act in furtherance of such criminal activities. We may also note that while observing thus in Arup Bhuyan Vs. State of Assam (supra), the Hon’ble Supreme Court overruled the State of Kerala Vs. Raneef: (2011 (1) SCC 784) which had been relied upon by Madras High Court in Barakathullah Vs. Union of India (supra).”

It is worth noting that the Division Bench notes in para 88 that, “We have already noted that the goal was to establish Caliphate by the year 2047 and at times, it takes years to achieve any such distant objective. To say that there was no proximity between the alleged preparatory act and the ultimate objective, would not be, therefore, appropriate as such kind of activities are unrelenting, perpetual and unceasing. The organization had been holding terror camps, recruiting and radicalizing Muslim youths and imparting weapon-training for the purposes of commission of terrorist act across the country and, therefore, it cannot be said that there was no proximity between the two or that the weapon-training was merely an act of defence, particularly when the statements of witnesses, clearly, speak to the contrary and indict the appellant. Such statements also go on to show that objective of such weapon-training was with the idea of overthrowing the democratically elected government to replace the Constitution of India with a Caliphate Shariya Law. The planning of targeted killing of Hindu leaders and attacking the security forces and establishing Caliphate by 2047 would clearly indicate that the target was to challenge the ‘unity and sovereignty of India’ and not merely to ‘overthrow the government’. Thus, the objective and manner of achieving the same, both, seem culpable.”

Conclusion

Most significantly and most forthrightly, the Bench also most forcefully asserts in para 109 holding that, “The allegations and averments appearing in charge-sheet coupled with the statements made by the witnesses, including the protected witnesses, the tone and tenor of the speeches made by the appellant, the fact that appellant was earlier closely associated with SIMI and when it was banned, he switched to PFI; the manner in which he has been sanctioning amount from PFI bank account and the overall impact of the material so collected by the investigating agency; leave no element of uncertainty in our minds about the fact that the case of the prosecution, with respect to the commission of offences falling under Chapter-IV and Chapter-VI of UAPA, is prima facie true.”

As it turned out, the Division Bench then points out in para 110 that, “There is nothing before us which may suggest infringement of his fundamental rights.”

Do note, the Division Bench notes in para 111 that, “As regards, his medical complications, learned Trial Court has already given the requisite directions, which we also feel to be very appropriate.”

As a corollary, the Division Bench then propounds in para 112 holding that, “Resultantly, finding no substance in the present appeal, we hereby dismiss the same.”

For sake of clarity, the Division Bench then clarifies in para 113 observing that, “It is, however, clarified that nothing expressed hereinabove shall tantamount to final expression on the merits of the case. Learned Trial Court shall not feel prejudiced to the above observations which have, primarily, been given while considering a bail plea. We expect the learned Trial Court to adjudicate on charges without getting swayed by what has been stated above.”

Finally, the Division Bench then concludes by holding in para 114 that, “Appeal stands dismissed accordingly.”

In conclusion, we thus see that the Delhi High Court very rightly denied bail to former PFI Chairman Abubacker E. It was held by the Court that there was prima facie commission of UAPA offences. So it was but natural that bail had to be denied and so was denied accordingly! No denying!

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.