Dewan Hamidul Islam v. The State of Assam

ORDER

22.03.2023

Heard Mr. H.R.A. Choudhury, learned Sr. counsel appearing for the accused petitioners as well as Mr. R.J. Baruah, learned Addl. P.P., Assam for the State respondent. Page No.# 2/5

¶2By this petition under Section 439 Cr.P.C., the accused-petitioner, namely Dewan Hamidul Islam has prayed for grant of bail in connection with Sessions Case No. 10/2023 arising out of Barpeta P.S. Case No.763/2022 under Sections 120B/121/121A of the IPC read with Sections 17/18/18B/19/20 of the Unlawful Activities (Prevention) Act, 1967 pending in the Court of learned District and Sessions Judge, Barpeta.

¶3The scanned copy of the case record along with the case diary, as called for, is placed before the Court.

¶4Mr. HRA Choudhury, learned Sr. counsel appearing for the accused petitioner, submits that the accused petitioner has been languishing in judicial detention since

29.07.2022 despite being innocent. Mr. Choudhury further submits that the petitioner is falsely arrayed as accused in the case. According to Mr. Choudhury, learned Senior Counsel, the charge-sheet itself shows that the accused petitioner is not involved in terrorist activity except he is a member of Ansarullah Bangla Team (ABT) affiliated to Al-Qaeda involved in Jehadi activities in the district of Barpeta, Assam, which is a banned outfit. Mr. Choudhury also submits that the investigating officer without any evidence laid the charge-sheet against the petitioner. It is submitted that mere possession of leaflets of the said banned organization without any evidence of circulation by the accused petitioner cannot amount to an offence attracting any offence under the U.A.(P) Act. Therefore, Mr. Choudhury submits that the accused petitioner may be released on bail subject to any condition(s).

¶5Per contra, Mr. R.J. Baruah, learned Addl. Public Prosecutor, submits that the case record reveals that although the charge-sheet is submitted in the case under various provisions of the U.A.(P) Act, the case is pending at the stage of furnishing copies to the accused persons before consideration of charges. It is further submitted that there is abundance of prima facie evidence on the case diary showing the accused petitioner's direct and active association with unlawful activities and as such, Page No.# 3/5 his bail application may not be considered favourably at the present stage and liberty may be given to raise his grievances before the learned trial Court at the time of consideration of charges.

¶6I have given due consideration to the above submissions of both sides and perused the evidence peculiar to the accused petitioner available on the case diary.

¶7The case of the prosecution, in brief, is that on 28.07.2022 one Ranjan Doley, Inspector of Police lodged an FIR alleging, inter alia, that based on intelligence inputs and local enquiries on certain information which came to light during investigation of Barpeta P.S. Case Nos. 268/2022 and 419/2022 regarding existence of a Jehadi(terror) outfit based in Bangladesh and operating in Barpeta District, it was learnt that several modules of the proscribed Ansarullah Bangla Team (ABT) having affiliation to Al-Qaeda in the Indian Sub-continent (AQIS) are active in Barpeta District and that members/supporters of ABT were indoctrinating and motivating the youth of Barpeta to join Jehadi outfits and work in modules "Ansars" (sleeper cells) for creating base for Al-Qaeda and its manifestations in various forms of names and styles in India, all of which are declared terrorist organizations in India as per provisions of the UA(P) Act, 1967.

¶8The FIR further reveals that on examination, it was found that these modules had hatched a criminal conspiracy with other members of ABT along with a group of men/youth of the district to facilitate further training of indoctrinated youth/men for waging Jehad and related terrorist activities in the district and that they are working towards advocating, abetting, inciting, assisting, harbouring, recruiting and collecting funds for organizing and committing unlawful and terrorist activities in the name of Jehad.

¶9It is also alleged that some FIR named persons were identified to have joined the modules of ABT who were also the key persons along with others in organizing and participating in various dharmsabhas/jalsas in which foreign nationals and Page No.# 4/5 members of the proscribed ABT participated. It is further alleged that they participated in secret meetings organized in various masjids and madrassas in the district as well as circulated books and pamphlets propagating jehad. The search of their houses led to recovery of certain incriminating documents and electronic devices which were accordingly seized.

¶10It is noticed that the accused petitioner has been in judicial custody since

29.07.2022.

¶11On perusal of the case record, it appears that in the instant case, the investigation is completed with filing of the charge-sheet against 15(fifteen) accused persons including the accused petitioner under the various provisions of Sections 18/19/20 of the U.A.(P) Act and the case is pending for furnishing copy.

¶12It is noticed that a co-ordinate bench has granted the liberty of bail to co-accused persons namely, Jubair Khan vide order, dated 09.01.2023 in B.A. No. 3552/2022 and Rafiqul Islam vide order, dated 04.01.2023 in B.A. No. 3624/2022.

¶13On scrutiny of the case diary, it is, inter-alia, prima facie revealed that the accused petitioner is a member of ABT, which is affiliated to the banned international militant organization namely, Al Qaeda.

¶14There is abundance of prima facie evidence to show that the accused actively associated with other members of the aforesaid organization by indulging in promoting various terrorist acts in the state of Assam to achieve the long term goal of establishing an Islamic State in India replacing its constitutional character of secularism.

¶15The case diary clearly reveals in detail various terrorist acts committed by the accused petitioner which attract the definition of 'Terrorist Act' under Section 15 of the U.A. (P) Act and his involvement in facilitating such acts by others, even beyond they, who are members of the organization by associating new persons to promote such acts. Various documents, electronic and print, are seized in connection with the case. Page No.# 5/5

¶16This is a serious case of unlawful activities threatening the national integration and security of India.

¶17The prescribed punishment for being member of terrorist gang or organization is imprisonment for a term which may extend to imprisonment for life and fine under Section 20 of the said Act.

¶18It seems that the instant application for bail is made primarily on evidence disclosed in substance in the charge-sheet only.

¶19Therefore, this Court is of the opinion that if the liberty of bail is granted to the accused petitioner before consideration of charges by the learned trial court, there is every chance of the accused petitioner repeating active association in alleged nature of unlawful activities. For the above stated reasons, the bail application stands rejected. The bail application stands disposed off.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010044642023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./800/2023 DEWAN HAMIDUL ISLAM S/O- DEWAN MATIUR RAHMAN R/O- SALEKURA P.S. BARPETA DIST.- BARPETA (ASSAM) VERSUS THE STATE OF ASSAM REP. BY P.P. ASSAM ------------ Advocate for : MR H R A CHOUDHURY Advocate for : PP ASSAM appearing for THE STATE OF ASSAM BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR