Mr. Trideep Pais, Sr. Adv. with Mr. Kartik Murukutla, Adv v. NATIONAL INVESTIGATION AGENCY

Judgment

1. The present appeal has been filed by the Appellant-Md. Heydaitullah under Section 21(4) of the National Investigation Act, 2008 (for short, ‘NIA Act’) read with Section 482 of the Code of Criminal Procedure, 1973, (for short, ‘CrPC’) assailing the impugned order dated 23.08.2023 passed by Shri Shailender Malik – ASJ-03, New Delhi District, Patiala House Courts, New Delhi in RC No. Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 19:28:13 CRL.A. 871/2023 14/2021/NIA/DLI dated 29.06.2021 under Sections 124A/153A/153B of the IPC and Sections 17/18/18-B/38/39/40 of the Unlawful Activities Prevention Act, 1967 (for short ‘UAPA’) registered at P.S. NIA, whereby the bail application of the Appellant was dismissed.

2. As per the case of the prosecution certain inputs were received regarding proscribed terrorist organizations such as Islamic State of Iraq and Syria (for short, ‘ISIS’) running a campaign in the cyber space for radicalizing youths and carrying out terrorist activities in India and elsewhere. It is alleged that one cyber identity by the name of Qasim Saini @ Qasim Khurasani along with his associates was actively involved in creating and disseminating ISIS centric propaganda with the intention of motivating youths for taking part in violent jihad.

3. In pursuance of the above Ministry of Home Affairs, Government of India vide Order No. 11011141/2021/NIA dated

29.06.2021 directed the NIA (i.e. Respondent) to register and investigate the aforesaid case.

4. The case of the prosecution is that the Appellant is a close associate of co-accused Basit Kalam Siddiqui (for short, ‘A-12’) and had conspired to establish Sharia law in India under the flag of ISIS by waging Jihad. It is alleged that the Appellant was disseminating the ISIS ideology through the cyber space, and was spreading hatred against the Government of India by promoting enmity against Hindus Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 19:28:13 CRL.A. 871/2023 on social media. It is further alleged that the Appellant had transferred funds for the cause of ISIS from his bank account. Also, various incriminating materials have been found in the electronic devices (D- 201 and D-202) recovered the Appellant during investigation.

5. The Appellant was arrested by the Respondent on 22.10.2022 and was chargesheeted in the present case vide second supplementary chargesheet dated 12.04.2023 for the offences punishable under Sections 17/18/38/39 of the UAPA and Sections 120-B/153-A and 153-B of the IPC. For the sake of completeness, the role ascribed to the Appellant (i.e A-13) by the Respondent in the aforesaid supplementary chargesheet filed before the learned Trial Court is as under: “17.2 Role and activities/offences established against A-13: -

17.2.1 Investigation revealed that A-13 was born and brought up at Village- Siswan, PS-Barharia, Dist-Siwan, Bihar. He completed his MBA in the year 2015 from Jamia Milia Islamia University, Delhi. At the time of arrest he was working in Avaya India Private limited, Global Business Park, near Guru Dronacharya Metro Station, Gurugram.

17.2.2 Investigation revealed that he used to watch videos/news related to so called atrocities against the Muslim community. After watching these types of videos, his thinking turned against the Government of India and he started reading contents of proscribed terrorist organisations including ISIS on the internet. He got influenced by these thoughts and started feeling that Muslims are being oppressed everywhere. Finally, he developed inclination towards ISIS and came to a conclusion that ISIS is the only Tanzeem which follows the principle of Sharia and made up his mind to join ISIS organization. Gradually his interest in ISIS grew and he began searching for keywords such Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 19:28:13 CRL.A. 871/2023 as ISIS, Jihad, Khilafa, Islamic state, Dawlah Islamia, and so on. He searched telegram groups and joined them. He was fully inclined towards ISIS ideology. He further took oath (bayath) twice in the name of "Abu Bakr Al Bagdadi" through audio shared on Telegram to work with ISIS. Daring investigation his mobile phone was seized and sent to Cert-In for examination and data was received. Various pro ISIS audios, videos, posters were recovered from his digital devices. Digital extract from the digital devices of A-13 make it evident that he was higly radicalised and was motivated by ISIS ideology. Recovery of a picture of ISIS pledge proves that he had taken the pledge of allegiance to ISIS and was an ardent member of this proscribed organization. He joined various social media groups specially on telegram to meet like minded people and had conspired to spread ISIS ideology.

17.2.3 Investigation revealed that he searched and joined Telegram group "Muslim chat". During group chatting, he came in contact with one Telegram handle "wolf" and further, he was added in the telegram group “The Caravan of desert" by "wolf". After one month "wolf" shared another telegram group’s link on the group of "The Caravan of Desert" and on his personal telegram ID for joining telegram group ID Al Malhamah, D@wl@tulisl@m, Sawt-al Hind Link, VOH, Mohammad Bot, Islam based department, Adam Tech world etc and he joined one telegram channel "Voices of Al-Hol Camp" by self searching on Telegram by himself. He used these accounts to keep a watch on posts regarding ISIS, and he also tried to make friends, with people of similar ideology. Telegram group Adam Tech World provides virtual numbers and he got one virtual number +33751525309 and than made telegram ID Wolf-lion. During this process, he established connection with myriad militant groups such as TRF, ISIS etc. who are fighting to remove the Government of India and want to establish reign by Islam/Dajjal. This Telegram group has tips and tricks on establishing and maintaining anonymity online.

17.2.4 Investigation revealed that A-13 was the member of many pro ISIS groups. Once he received a message in Telegram group voices of Al hol camp related to donation of some money for Al-Hol Camp from telegram ID: umm_imara. In that message umm_imara shared a bank account number 0863101034295 of Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 19:28:13 CRL.A. 871/2023 Canara bank in which funds had to be sent. He further sent Rs. 15000/- on 30.07.2020 through NEFT from his Yes Bank account no. 017291800001989. The same transaction is reflected in his bank statement. Further efforts to resolve the identity of ISIS Telegram entity umm_imara are being made and to resolve the identity the actual beneficiary of the amount sent by A-13. Further during scrutiny of seized mobile data it was found that A-13 was the member of Voices of Al-Hol Camp (Telegram id- 1398146684) and he got motivated to donate funds for the cause of ISIS. A-13 while chatting on a telegram group Voice of Al hol camp got a message to donate money to support women and children of ISIS fighters, from a telegram user @ umm_imara. The bank account details for deposting the money was shared on the said group. A-13 as an ardent member of ISIS, decided to donate the sum of Rs 15000. During investigations, A-13 was questioned regarding the transfer of money from his bank account to the bank account shared on the telegram group Al hol Camp to help the cause of ISIS. He informed that he wanted to help the women and children of ISIS fighters, so he transferred the money. This itself proves that he is an ISIS Sympathsier. It is also corroborated by witnesses.

17.2.5 Investigation revealed that the A-13 was associated with co-accused A-12 through social media applications and both were part of many Pro ISIS social media groups therein ISIS propaganda materials were shared. Some chats were found in mobile data of A-12 showing their association. Chats have been found on Telegram between A-12 having Telegram ID 5645052658 (WOLF) and A-13 having Telegram ID: 5580008391 (Wolf-Lion). Chats were found in al malhamah telegram group in which Basit and Heydaitulla were members and ISIS related contents were posted in this group. During scrutiny of mobile data of A-13 it was found that he was also member of pro ISIS telegram group ISLAM Based Department in which A-12 was also member and in this group Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 19:28:13 CRL.A. 871/2023 ISIS material were shared. Social media chats of A-13 with A-12 show that they both were known to each other and they both were members of many common social media accounts where ISIS related material were circulated and ISIS ideology was discussed.

17.2.6 Investigation revealed that A-13 was the member of many pro ISIS telegram groups and used to receive and share ISIS propaganda material. It is evident from evidence extracted from the digital devices of A-13 that he was highly radicalized by ISIS ideology; took oath of allegiance to ISIS; joined various social media groups where he came in contact with the like-minded people propagating and disseminating ISIS ideology, recruited people for the proscribed organisation, collected funding for the cause of ISIS, learned to make IEDS, watched videos to establish Sharia law in India under the flag of ISIS.

17.2.7 Investigation further revealed that A-13 was planning to carry out bomb blasts in India with co accused A-12. He also searched and read many online and off line articles to prepare various types of explosives/IEDs & bombs. In this regard many pdf and videos were found in his seized digital devices describing methods of preparing explosives and bombs, Chats on Telegram group where A-13 was a member and the group members were sharing tutorial videos/pdf/image for preparing explosives. This establishes inclination of A-13 for preparing explosives and IEDs. In this chat A-13 is also seen proposing to have separate secret chat group on conversation.in. to avoid LEA’s scrutiny. A-13 was also member of many Telegram groups dealing with guns and 3D Printing of weapons/guns. Evidence extracted from his digital devices shows Telegram groups discussing making of Guns with the help of 3D printers and also recovery of digital images, showing guns which can be easily made by 3D printers with pictorial guides to make paper cartridge. In this regard group chats found in mobile data of A-13, where he was also a group member. This group discussed about making Guns with the help of 3D printing. Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 19:28:13 CRL.A. 871/2023

6. Thereafter, the Appellant filed an application under Section 437 Cr.P.C. read with Section 43(D)(5) of UAPA seeking regular bail and

the same was dismissed by the learned Trial Court vide the impugned order.

7. Hence, the present appeal. SUBMISSIONS ON BEHALF OF THE APPELLANT

8. Learned Senior Counsel appearing on behalf of the Appellant submitted that the there was no evidence connecting the Appellant to any terrorist organization including ISIS. The only allegation, which is relied upon by the prosecution, is the remittance of Rs.15,000/- from the Yes Bank account of the Appellant to one Mohd. Unais (PW-125), which is not sufficient to hold that the Appellant was either a member of any terrorist organization or had in any manner donated or contributed to any terrorist organization for furthering its cause. It is further submitted that in the initial FIR dated 29.06.2021, no accusations were made against the Appellant. It was only after the Appellant was arrested on 20th October, 2022 that this banking transaction was relied upon and the Appellant was arrayed as a co- accused in the second supplementary chargesheet.

9. Learned Senior Counsel appearing on behalf of the Appellant submitted that Appellant had not made any direct remittance to the Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 19:28:13 CRL.A. 871/2023 lady Ms. Afa Ibrahim and the aforesaid witness i.e., Mohammad Unais, to whom the Appellant had transferred Rs. 15,000/- on

30.07.2020, had made a second remittance of equivalent Maldivian Rufiyaa (3100 MVR) to Ms. Afa Ibrahim, on the same date. Further, it is submitted that there is no material on record show that Ms. Afa Ibrahim, belonged to ISIS or that she was running any telegram group, bearing Telegram ID: “umm_imara”. In the reply filed by the NIA, in respect of the telegram chats, the following is recorded: “..... Further during investigations of NIA case No. RC- 26/2022/NIA/DLI, it emerged that one lady having Telegram i.e "umm3imarah" and account similar "ummimarah0" used to raise funds for ISIS on the name of charity work for Al-Hol Camp. This clearly establishes that the accused Md. Heydaitullah (A-13) had intentionally provided funds for ISIS.” to "umm_imara"

10. It was argued that the aforesaid witness has also given an explanation as to the reason why the Appellant deposited Rs. 15,000/- in his account, and why the same was remitted by him to Ms. Afa Ibrahim. However, in his statement, Mohd. Unais (PW-125) does make a factual assertion that Ms. Afa Ibrahim is involved in raising funds for ISIS activities, but there exists no material to support such an assertion. It is submitted that the entire basis of the present case, which has been put up against the Appellant, cannot be on such a hearsay or a non-substantiated statement given by a witness. Further it was argued that the Respondent has not been able to proffer any proof that any message was sent by the Appellant to ISIS. Also, there was no proof that Ms. Afa Ibrahim is part of ISIS. Even the neighbour’s name Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 19:28:13 CRL.A. 871/2023 at whose behest allegedly the remittance was sought by the Appellant could not be recalled by Mohd Unais during his deposition before the learned Trial Court (PW-125).

11. Insofar as the chargesheet is concerned, it was pointed out that the second supplementary chargesheet dated 12.04.2022, reflects that there was no pro ISIS material that was revealed from the investigation against the Appellant. Although, it is alleged that the two mobile phones, which were seized from the Appellant, did reveal certain documents relating to the ISIS such as pledge for joining ISIS etc., but the same would not be sufficient to show that the Appellant had, in any manner, disseminated any material relating to the ISIS. It is also submitted that the mere presence of sympathizing material in respect of ISIS would not be sufficient to show that the Appellant is guilty of the offences charged.

12. Further it is submitted that a perusal of paragraph 17.2.1 and

17.2.7 of the second supplementary chargesheet would reflect that various allegations have been made against the Appellant. However, there is no supporting evidence provided by the prosecution with regard to the said allegations, including the allegation regarding the Appellant joining Muslim chat group on Telegram called “The Caravan of desert” or “Voices of AL-Hol Camp” as is alleged in paragraph 17.2.4 of the aforesaid chargesheet. Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 19:28:13 CRL.A. 871/2023

13. Learned Senior Counsel appearing on behalf of the Appellant submitted that the material which was recovered from the two mobile phones of the Appellant namely (i) green black Redmi phone (D-201) and (ii) Samsung Galaxy J7 phone (D-202), showed mere existence of 455 PDF documents on the Redmi phone, without any further dissemination of the same. It was argued that this cannot show that the Appellant had been distributing or calling for any recruitment or actively participating in any ISIS activity. The data, which had been recovered from the said phones, also does not establish that the Al-Hol camp belong to the ISIS. It is submitted that at most, the allegation that can be made against the Appellant is that there was ISIS sympathizing material on both the phones. It was further argued that there was no material to show that the Appellant, in fact, took a pledge in favour of ISIS. Mere possession of such material cannot be held to be an offence, as per the settled legal decisions.

14. Learned Senior Counsel appearing on behalf of the Appellant argued that Insofar as the group named “Caravan of desert” being related to the ISIS is concerned, the same is, in fact, an allegation, which is not supported by the screen shot, appended at page 237 of the present Appeal. It was submitted that that the telegram conversations placed on record between a co- accused, who takes the name ‘Wolf’ and the Appellant, who goes by the name ‘Momin Believer’ also did not show any implicating material. Signature Not Verified Digitally Signed By:SHIWANI NEGI Signing Date:10.01.2025 19:28:13 CRL.A. 871/2023

15. Reliance was placed on the judgement of the Hon’ble Supreme Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr1., to argue that mere sympathizing with an organization is not sufficient to reject an application for bail. Further in consonance with the principles laid down by the Hon’ble Supreme Court in National Investigation Agency v. Zahoor Ahmad Shah Watali,2 (2019) 5 SCC 1, it was submitted that the allegations have to prima facie show the Appellant’s complicity in the commission of the said offence.

16. Learned Senior Counsel appearing on behalf of the Appellant also placed reliance on the judgment of the Hon’ble Supreme Court in Thwaha Fasal v. Union of India3, wherein it was held that it is imperative to establish that the accused was involved in furthering the activities of a terrorist organization and the same is an essential condition. Mere association and support to a terrorist organization cannot be held to be sufficient and active participation is required.

17. Judgment of the Hon’ble Supreme Court in Jalaludin Khan v. Union of India4, was relied upon to argue that the connection between the Appellant and the tenant who was given the premises on rent would not show a direct connection between the Appellant and the Popular Front of India (“PFI”). It is pointed out that on the aforesaid reasoning the Hon’ble Supreme Court had granted bail to the accused in Jalaludin Khan (supra). The reference was then made to the