SRINAGAR: A Delhi Court has granted bail to a 25-year-old Kashmir based photojournalist Mohammad Manan Dar in a case registered under the Unlawful Activities (Prevention) Act, observing that the accusation made by National Investigation Agency (NIA) against him does not appear to be cogent and true, reported LiveLaw.in.
Additional Sessions Judge Shailender Malik observed that the allegation of “assisting a proscribed militant organization discreetly whereas ostensibly carrying on legitimate activities like advocate, journalist etc” must be supported by direct evidence of any such activities.
“Mere assumptions or incomplete evidence to establish such facts may not be sufficient. This court would not discuss elaborately statements of the witnesses naming the the accused/applicant, except to note that such statements may not be conclusive,” the report quoted the court as having said.
On the allegation that Dar shared images of security forces and deployment under the cover of being a photojournalist, the special judge said that a perusal of extracted data of his mobile phone would show that while there are Telegram messages and images, they do not indicate that the same were sent by Dar.
“No doubt there is indirect reference showing share of links of other smaller, private messaging applications like Tam Tam, Nand messenger etc. to avoid detection of the messages. Similarly, there is also WhatsApp chat retrieved in which there is one message enquiring as to whether there is Hanan or Manan. However such messages, chat etc. may not be sufficient at least at this stage to show that accused/applicant sent message or was part of chat,” the court said.
The court also observed that there is no evidence to show that Dar shared any photograph or image of security forces or deployment with any individual or organization at any point of time.
“Moreover evidence is only upto the extent of such photograph/videos/images being stored in mobile phone of accused/applicant which even as per prosecution case, also was being used by A-9. Therefore taking into account all these evidence on face of it, it would be enough to observe for the purpose of bail application that such evidence do not connect or are not sufficient to indicate accused/applicant being part of conspiracy or other charges,” it added.
The court further said that though it would not go into detailed scrutiny of the evidence at this stage but “it would be sufficient to say that none of the evidence referred to (D-30, D-90, D-89 and D-141) or statement of witnesses (PW-251, PW-261 and X-14) in any manner indicate any act of ‘terrorist activity’ as defined /s 15 of the Act, in any manner.”
“At the cost of repetition this court would not make much observation on the merits of the matter but I find that having certain objectionable material in the mobile phone of someone which a prudent person otherwise would have deleted the same, ipso facto would not be sufficient for connecting the accused with the allegations/offences,” it added.
The court relied on Thawa Fazal vs. Union of India saying that the Supreme Court has elaborately discussed the ingredients of offences u/s 15, 20, 38 and 39 of UAPA and has held that basic ingredients required for proving an offence under those sections require any overt act for doing any of the terrorist act or activity as defined under section 15 of the Act.
“It was further held that mere association with militant organization is not sufficient to attract Section 38 of the Act and mere support given to militant organization is also not sufficient to attract Section 39 of the Act. Association and support have to be with the intention of furthering the activity of militant organization. Such intention can be inferred from the overt act or an act of active participation of accused in activities of militant organization.”
The special judge thus held that Dar has been able to establish a case satisfying the requirement of Section 43-D(5) of the Act.
“…and this court upon analysis of entire evidence and at least for the purpose of disposal of bail application it can be observed that accusation against the accused does not appear to be cogent and true,” said the judge, while granting the accused bail.
Dar has been in jail for more than a year in the case. According to the Committee to Protect Journalists, Manan was a freelance photojournalist who has covered news and conflict in Kashmir and contributed to agencies like Getty Images.
However, the investigating agency has alleged that Dar was working as an ‘over ground worker’ of Lashkar-e-Toiba (LeT) and its off-shoot ‘The Resistance Front’ and “knowingly entered into a conspiracy with militant commanders based across the border as well as active militants in the valley” to “assist unrest” in the valley.
Stating that proscribed militant organisations based in Pakistan had floated a number of a social media handles and groups on encrypted messaging apps like Telegram and WhatsApp, the NIA claimed that Dar was “the member of the group ‘The TRF’ which was being run on the direction of other co-accused based across the border”.
Opposing the bail plea, the central agency had alleged that Dar and other accused were associated with the online groups and were acting as “hybrid cadres” on behalf of the proscribed militant organisations.
NIA had further argued that the matter has national ramifications posing a direct threat to the security of the country. There is a danger that Dar may abscond across the border and influence witnesses, if released, the agency has told the court.
The matter pertains to an FIR registered in October 2021 under Section 18, 18A, 18B, 20, 38 and 39 of the UAPA and Section 120B, 121A, 122 and 123 of the Indian Penal Code.
The FIR was registered on the basis of an order of the Ministry of Home Affairs (CTCR Division) alleging that the cadres of various militant organizations namely Lashkar-e-Toiba (LeT), Jaish-e- Mohammed (JeM), Hizab-ul-Mujahideen (HM), Al Badr and their affiliates are active in J&K and other places.
Advocates Tara Narula, Tamanna Pankaj and Priya Vats on behalf of Association for Protection of Civil Rights (APCR) represented Dar.
