The Delhi High Court ruled that the presence of photos depicting Laden and ISIS flags does not serve as conclusive evidence of the existence of a terrorist organization. This decision reflects a nuanced understanding of legal standards and the complexities of interpreting visual materials in legal contexts. It highlights the importance of thorough investigations and comprehensive evidence to establish links to terrorism beyond visual indicators alone.
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New Delhi: The Delhi High Court, while granting bail to a man accused in a UAPA case, emphasized that simply possessing incriminating material such as photos of terrorist Osama bin Laden and ISIS flags on his mobile device does not automatically make him a member of a terrorist organization. The court’s decision highlights the need for strong evidence beyond mere possession of such material to establish someone’s involvement in terrorist activities.
A division bench comprising Justice Suresh Kumar Kait and Justice Manoj Jain, in their ruling, stated,
“Simply because the appellant’s mobile device contained incriminating material such as photos of terrorist Osama bin Laden, Jihad Promotion, ISIS flags etc., and he accessed lectures from hard-line/Muslim preachers, does not automatically categorize him as a member of said terrorist organization, let alone actively supporting its cause.”
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The court elaborated, stating,
“In today’s digital age, such incriminating material is easily accessible on the World Wide Web (www), and simply accessing or downloading it does not imply association with ISIS. Any curious individual can access and download such content, which in itself is not a criminal act.”
The court noted that while such actions may offer insight into the individual’s mindset, in cases where penal provisions significantly limit liberty and bail is an exception, the prosecution must present “extra ammunition” in the form of “decipherable and tangible material.”
The court also emphasized that simply following “news items related to the Middle-East and Israel-Palestine conflict” or accessing “hate speeches of hard-line Muslim preachers” would not establish that the individual actively promoting the agenda of a banned terrorist organization.
The bench remarked that the application of Sections 38 and 39 of the UAPA appeared to be “incorrect and inappropriate.” Section 38 of the UAPA deals with the offense of membership in a terrorist organization, while Section 39 pertains to supporting a terrorist organization.
The court made certain remarks while granting bail to Ammar Abdul Rahiman, who arrested by the National Investigation Agency (NIA) in August 2021 and faced charges under different provisions of the Unlawful Activities (Prevention) Act (UAPA). Rahiman had appealed against a trial court’s decision in December 2023, which had denied him bail.
However, the High Court stated that,
“These remarks were provisional in nature and only intended to determine the issue of bail.”
The court clarified that they did not represent a final opinion on the merits of the case.
An examination of Rahiman’s mobile phone uncovered videos related to ISIS and violent killings, which were downloaded from Instagram using the screen-recorder feature. The agency also alleged that the phone contained photographs of Osama Bin Laden, materials promoting Jihad, ISIS flags, and other content that indicated his radical mindset and association with ISIS.
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The High Court, however, stated that,
“Rahiman could be described as a ‘highly radicalized individual’ who espoused the ideology of ISIS, a banned terrorist group, ‘at best’.”
The bench emphasized,
“Despite his fascination with ISIS, it cannot be interpreted as though he had direct involvement with ISIS or was advancing its agenda.”
The bench also noted that there were no other facts or circumstances that could suggest the presence of a conspiracy.
The bench further stated,
“Simply downloading software such as MobileSafari or Telegram does not carry significant weight, as these are publicly available. No negative assumptions should be made solely based on their presence on his mobile device.”