No proof for UAPA. High Court grants bail to Muslim youth in Delhi riot case

Faizan Khan. Photo: Huffington Post.

The Delhi High Court has granted bail to Faizan Khan, a Muslim youth who is an accused in the Delhi Riots case and was facing charges under the draconian UAPA on Friday.

According to a Live Law report, a Single-Judge Bench of Justice Suresh Kumar Kait heard the matter and noted that the onerous conditions/embargo under Section 43D(5) of the UAPA would not be applicable in the present case as per the material on record and that the investigating agency’s status report did not disclose the commission of offences under UAPA, except for bald statements of the witnesses.

Faizan is a 35-year-old mobile SIM salesman and was arrested on 29 July under First Information Report (FIR) 59, which says that the anti-Cifizenship Amendment Act (CAA) protests were a front for planning the riots in Delhi.

In this case, the chargesheet had been filed against the 15 accused on 16 September however, none of them had been released on bail except for Safoora Zargar on humanitarian grounds.

The status report alleges that the accused Faizan Khan and co-accused and Jamia Millia Islamia student leader Asif Iqbal Tanha were “acting in connivance with each other” and “in furtherance of a pre-conceived criminal conspiracy hatched with the other co-accused knowingly facilitated the commissioning of unlawful and terrorist act”.

ASG SV Raju argued that the mobile phones of the accused persons were sent to CERT-IN for analysis and it was revealed that different WhatsApp groups were formed for coordination and passing of directions regarding mobilization of people at locations of CAA protest sites which lead to riots.

Senior Advocate Salman Khurshid appeared on behalf of Faiza Khan and submitted that the Delhi police had “misapplied and wrongly invoked” UAPA and that there was neither any allegation that the Petitioner had indulged in any terrorist act nor was there any material that remotely showed that Petitioner had funded any terror activity. Therefore, invocation of UAPA was a gross abuse to deprive the Petitioner of his personal liberty.

He also argued that there was no material to show that there was no requisite intention on behalf of Faizan Khan and the case of the investigating agency was that the SIM card was provided by Khan on allurement of money, but not for any other objective.

“Therefore, the invocation of the UAPA, 1967 is disproportionate and there is no material to satisfy the basic ingredients provided under the UAPA, 1967,” lawyer Khurshid said

Justice Kait, after hearing the arguments and going through the material available on record, observed that it was not the case of the investigating agency that Faizan Khan was a part of the WhatsApp groups which were made to organize protests against CAA and that there was no allegation against him that he had engaged in terror funding or any other ancillary activity.

Delhi Hight Court further noted that there was no proximate nexus between the incidents alleged by Delhi police and it had also not been alleged that the arrested Muslim youth Faizan was privy or party to organizing protests against CAA, 2019.

According to Live Law report, the Judge noted that for invoking UAPA, it was the duty of the agency to demonstrate that the Petitioner had “actual knowledge” that the said SIM would be used for organizing protests.

“It was imperative for the investigation agency to demonstrate that the Petitioner had ‘active knowledge’ about the utilization of the said SIM card. It is not alleged that the petitioner was party to any such conspiracy to organize protests,” judge said.

“It is pertinent to mention here that the onerous conditions/embargo under Section 43D(5) of the UAPA, 1967 will not be applicable in the present case qua the Petitioner herein as per the material on record and the investigating agency’s own status report, which does not disclose the commission of the offences under the UAPA, 1967, except bald statements of the witnesses, said Delhi High Court while directing for Faizan Khan to be released on bail after furnishing a personal bond in the sum of Rs. 25,000/- with one surety of the like amount to the satisfaction of the Trial Court.