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Mere possession of ‘jihadist literature’ not an offense unless material shows execution of philosophy to commit terrorist acts: Delhi court


Dealing with a case registered under the Unlawful Activities (Prevention) Act, a Delhi court observed that the mere possession of “jihadist literature” having a “particular religious philosophy” would not constitute an offense unless there is evidence of the execution of such a philosophy to commit terrorist acts.

“….to consider the mere possession of jihadi literature having a particular religious philosophy as an offence, although such literature is not expressly or specifically prohibited by any provision of law, is not comprehensible in law unless and until there is evidence on the execution of such a philosophy to commit terrorist acts. Such a proposal goes against the freedoms and rights guaranteed by Article 19 of the Constitution,” said Senior District and Sessions Judge Dharmesh Sharma of the Courts of Patiala House.

The court made the observation when framing charges against nine defendants in a National Investigation Agency case related to the online spread of ISIS ideology. The defendants in the case hail from Kerala, Karnataka and Kashmir.

The court made charges against Mushab Anwar, Rhees Rasheed, Mundadiguttu Sadanananda Marla Deepthi, Mohd. Waqar Lone, Mizha Siddeeque, Shifa Haris, Obaid Hamid Matta and Ammar Abdul Rahiman under IPC Sections 120B read with UAPA Sections 2(o), 13, 38 and 39.

The court acquitted a 26-year-old Kashmiri boy, Muzamil Hassan Bhat, of all charges in the case, saying there is no evidence he ever claimed to be a member of ISIS or did anything to promote the activities. of the prohibited organization.

The court said there was a prima facie case to bring charges against the other defendants as they had accessed “highly provocative jihadi material” and subscribed to ISIS ideology and were also deliberately, willfully and deliberately disseminating actively this material, seeking support from like-minded people. and “encouraging gullible young Muslims” to follow the path of IS policies.

“They claimed to be self-proclaimed pods of Indian soldiers or ISIS operatives and, therefore, were making every effort to further the cause of the banned organization,” the court added.

Another defendant, Obaid Hamid Matta, was charged under Articles 2(o) and 13 of the UAPA.

“The mere fact that A8 (Obaid Hamid Matta) was accessing and reading some hardcore Islamic literature does not in itself constitute an offence. However, he was engaging in the commission of illegal activities and therefore committed offenses u/s 2(o) read with Section 13 of the UA(P) Act,” the court said.

During the formulation of the charges, the court said that the defendants had exploited various social media platforms “like a toolkit” to spread ISIS ideology and thereby seduce, impress and radicalize others who share the same beliefs. same ideas to engage in illegal activities.

“The above-mentioned accused persons not only professed, proclaimed or claimed to be members of the banned organization, but also promoted the provocative, violent and divisive ideology of the banned organization ISIS,” the court said.

Going through the indictments filed by the NIA, the court observed that data extraction from the digital devices and the social media account revealed that all of the defendants except Muzamil Hassan Bhat who been released, were accessing jihadist material on the Internet. He added that the defendants also advocated and disseminated such an ISIS ideology or philosophy through their private and public social media accounts.

“There is prima facie substance in the prosecution case that the defendants were spreading inflammatory and provocative jihadi material through various social media accounts, and therefore attempting to pollute the minds of gullible young Muslims to furthering the activities of the Prohibited Terrorist Organization In summary, even a simple reading of the messages, conversations, dialogues, comments and all the tone and tenor of all the material extracted from the digital devices of the defendants would show that there was a deliberate attempt to sow disaffection against the country,” the court said.

With respect to the terrorist act under the UAPA, the court stated that although the defendants prima facie committed offenses under Sections 2(o) and 13 of the UAPA, there is no however, there was no evidence to conclude that any of them had committed a terrorist act within the meaning of section 15 of the Act.

“No physical act was attributed to them leading to the commission of a terrorist act or any act or omission demonstrated to be preparatory to a ‘terrorist act’….”, the court said.

It was further observed that there was no evidence that any of the defendants had obtained weapons, ammunition or explosive substances or attempted to acquire them or planned to commit any terrorist act in such a way as to cause widespread disturbance or fear in the minds of the general public.

“If the prosecution’s story is to be believed, some of the defendants were highly motivated to undertake Hijra, that is, a mass exodus to ISIS-controlled territories or elsewhere to the Islamic State. State of Jammu and Kashmir, this desire can never materialize, and this in itself is not an offense under Section 18 of the UA(P) Act There is no evidence that the “one of the defendants, individually or in association with one or the other, planned to commit a terrorist act or an act preparatory to a terrorist act,” the judge added.

Observing that although the documents collected by the NIA demonstrated at best that almost all of the defendants, with the exception of Bhat, were IS sympathizers and accessing highly radicalized jihadist documents on the Internet, he however added that there was no evidence to suggest that either of them individually or in association with either committed or planned a terrorist act.

“To sum up, the defendants before this Court are more or less young and their religious and ideological bent is certainly disdainful, contemptible and contrary to the ideals of the constitution of India. However, since none of the defendants are said to be s ‘to be engaged in acts of violence or to have participated in a conspiracy to commit a particular terrorist act, they cannot be held prima facie to have committed the offenses in question,’ the court said.

On the issue of membership in the banned organization, the court said that although the defendants “probably aspired to become members of ISIS”, none of them was an active member of the said organization.

The court said there was no evidence whether any of the defendants had been given a rank, position or designation or given a specific task by ISIS to commit an act terrorist.

“There is no evidence that there was ever any acknowledgment by anyone in the command hierarchy of ISIS or its subsidiary or affiliated organization treating any of the defendants as its foot soldiers or members of any ‘sleeper cell’,” the court said. .

He added, “Even though they were impressed by the said philosophy and ideology, they still cannot be considered members let alone members who would bring criminal liability to the said organization.”

However, the court also observed that it is difficult to discern from the voluminous data extracted from social media accounts and cellphones that the defendants were merely “passive members” of the banned organization.

“Each of them was very deliberately, deliberately and actively using secure and insecure as well as encrypted social media accounts, openly declaring themselves to be sympathizers, activists and members of the banned organization ISIS. This was not a simple case of affirmation of the violent philosophy of the Islamic State by accessing this material on the Internet, but also by actively participating in the dissemination of this ideology,” the court said.

He added: “On the face of it, sharing highly inflammatory, anti-national and secessionist propaganda on social media platforms to a select group of people and entering into a discussion or exchange of comments and counter-comments or opinions by all means amounted to broadcasting and also conducting some sort of meeting of like-minded people on the web to spit venom against the country and further the cause of the terrorist organization.”

Regarding the terrorist financing charges, the court found that there was no evidence that any of the defendants attempted or obtained weapons, arms or ammunition while receiving these funds. It was also observed that there was no indication that these funds had been transferred to ISIS.

The court also declined to bring charges against the defendants under Article 121A of the ICC, observing that there was no evidence to conclude that any of them was conspiring to wage war on the Indian government.

“The mere fact of accessing and reading IED articles or information on the web by A9 and A10 without any evidence of an actual or physical act of assembling and manufacturing such a device does little to “There is no evidence that any of the defendants individually either conspired to wage war against the Indian government and/or engaged in any type of terrorist act,” the court said.

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