At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE A.M. SHAFFIQUE & THE HONOURABLE MR. JUSTICE P. SOMARAJAN
For the Petitioner: Sunil Nair Palakkat, K.N. Abhilash, M.A. Ahammad Saheer, K. Aasha, Advocates. For the Respondent: M. Ajay, Spl. P.P for NIA.
1. This appeal has been filed against the order dated 12.03.2018 in Crl.M.P. No.26 of 2018 in R.C.No.1/2018/NIA/KOC on the files of the Special Court for trial of NIA cases challenging the order passed by the court below refusing to grant bail.
2. It is submitted that there is a matrimonial dispute between the appellant/1st accused and his wife. He married her in the year 2016. She was a Hindu by religion. She converted herself into Islam.
3. The appellant submits that while they were living together in Saudi Arabia, she had come back to meet her parents. They had a cordial relationship as evident from various messages communicated between them. But later on, it seems that she had fallen apart. The appellant had filed a habeas corpus petition before this Court on the ground that she had been illegally detained by her father which came to be decided as per judgment dated 23.1.2017. Before this Court his wife had submitted that she was not being illegally detained and she had voluntarily married the appellant. She also expressed her desire to live with him. Accordingly they went together.
4. The appellant submits that later on his wife filed a writ petition before this Court complaining that she was forced to change the religion, got married and lived together, but now the attempts are being made by the appellant to take her to Syria to join ISIS terrorist organisation. She had approached this Court seeking investigation in the matter. She has also stated in the writ petition that she was forced to make a statement in W.P. (Crl).No.483 of 2016 and the appellant had threatened her stating that her nude photographs will be published in the social media.
5. The matter was investigated by the local police and later handed over to NIA.
6. The main contention urged by the appellant is that he is not at all involved in any such terrorist organisation and he has no connection with the same. It is only on account of the matrimonial dispute or under the influence of some other persons that she made such allegations against him. Though lap tops were recovered by the NIA and surrendered the lap tops before them, other than a folder containing videos, speeches of one Zakhir Naik, many other Muslim leaders organization, no other evidence has been upcoming regarding the alleged terror link.
7. It is therefore submitted that the appellant is unnecessarily being detained in prison and he will get regular bail only after 180 days in terms of the statute. It is submitted that the appellant is ready and willing to comply with any of the directions issued by this Court.
8. Learned Special Public Prosecutor appearing on behalf of the NIA submitted that the NIA came into picture on the basis of a report submitted by the local police. It is true that two lap tops had been detained from the appellant, one recovered and other brought by his brother from abroad. Those contains certain literature regarding the Jihad movement and videos, speeches of one Zakhir Naik, Jihad organisations certain videos of war in Syria etc. That apart there are some nude photographs and videos of the girl. Other than that, as the matter stands now, link with any terrorist organisation has not been established.
9. The learned counsel for the appellant on the other hand submitted that the nude photographs and videos of the girl were recovered from her own lap top.
10. Be that as it may, we are of the view that the issue relating to the nude photographs of the girl etc are separate matters which has to be dealt with in accordance with the procedure prescribed.
11. As far as the appellant is concerned, he is detained on the ground that he might have involved in terrorism. The fact that he has seen certain videos and speeches as aforesaid by itself will not be a reason to implicate him as a terrorist, unless there are other materials to establish the same. Many of such videos, speeches etc are in public domain. Merely for the reason that one sees such matters it may not be possible for any person to establish that the accused is involved in terrorism. In the absence of any such materials forthcoming, even as on date, after expiry of 70 days of imprisonment, we are of the view that this is a fit case in which this Court should exercise jurisdiction to grant bail. Accordingly this appeal is allowed, setting aside the order passed by the NIA Court and bail is granted to the appellant on the following conditions:
1. That the appellant shall furnish simple b
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ond for Rs.1,00,000/- with two sureties for like sum before the trial court. 2. That the appellant shall not leave the jurisdiction of the NIA Court for a period of 30 days. 3. He shall appear before the Investigating Officer as and when called upon. The appellant shall give all his contact details to the Investigating Officer or the Court as the case may be. 4. The appellant shall not indulge in publishing any photographs or videos of the defacto complainant.