Mere possession of jihadi literature not an offence: NIA court

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Possessing jihadi literature is not a crime unless its philosophy was executed for terrorist purposes, a special National Investigation Agency (NIA) court said, The Hindu reported.

The court’s observation was made while framing charges against 11 people accused of online propogation of ISIS ideology, in a case registered by the NIA under the Unlawful Activities (Prevention) Act (UAPA).

“Further, to hold that mere possession of Jihadi literature having a particular religious philosophy would amount to an offence, though such literature is not expressly or specifically banned under any provision of law, is not fathomable in law unless and until there is material about execution of such philosophy so as to do terrorist acts,” said the court’s order, a copy of which is with The Hindu.

The accused were from Kerala, Karnataka and Kashmir. The principal district and sessions judge, Special court (NIA), Dharmesh Sharma acquitted one of the 11 accused from all charges. The main accused had died. The other nine accused were booked under Section 120 B of the Indian Penal Code (IPC), read with Section 2 (o), read with Section 13, along with Sections 38 and 39 of the UAPA.

The court refused to frame charges against the accused under Section 121 A of the IPC, observing that there was no evidence that any of them were conspiring to wage war against the government of India.

While pronouncing the framing of charges, the court said that although each one of the accused has probably been aspiring to become a member of ISIS, none of them has yet been an active member of any such organisation. It added that there is no iota of evidence that any of the accused had been conferred any rank, position or designation, or for that matter, any task by the ISIS to carry out any terrorist activity.

The court noted that there was no evidence that there was ever any acknowledgement by any of the commandant hierarchy of the ISIS or its subsidiary or affiliated outfit treating any of the accused as its foot soldiers or members of any “sleeper cell”.

The court further added that the prosecution’s case that digital exhibits seized from the possession of the accused revealed several incriminating materials does not establish in any manner that they were conspiring to wage war against the Government of India.

“Although there is material to prima facie substantiate the prosecution story that the accused persons had a common agenda to propagate the ideology of ISIS through secret social media applications and attempted to garner support of the like minded people by influencing, inciting and radicalizing the vulnerable Muslim youths to join ISIS pursuant to a well planned criminal conspiracy but there is no material that they committed any terrorist act or conspired to wage war against the Government of India,” the court said.

“There is no substance in the prosecution case that the accused wanted to undertake Hijrah to Jammu and Kashmir and other ISIS controlled territories and, therefore, the said act on their part amounted to waging war against Government of India,” it added.

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