SHIYAS T. S. Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is filed by the 3rd accused in SC No.01/2024/NIA on the files of the Special Court for the Trial of NIA Cases, Ernakulam challenging the order passed in Crl.M.P.No.218/2024 dismissing his petition filed under Sec. 439 of Cr.P.C.

(2.) The prosecution case is that, the appellant/3rdaccused knowingly and willingly became a member of the ISIS module in 2022, which was established by the first and the second accused and took oath of allegiance in favour of ISIS. Thereafter, accused Nos. 1 to 3 attempted to recruit the 4th accused and others to the module in Kerala and the third accused identified gullible youths for recruitment to ISIS for furthering the activities of the terrorist organization, and solicited and obtained funds from them for proISIS activities. Accused Nos. 1 to 3 also conspired and conducted recce of Hindu Temples and prominent persons of other communities for targeting them, as well as to loot them. They also identified and recruited vulnerable youths into ISIS and propagated ISIS ideology through social media and secret communication platforms. Hence, it is alleged that the 3rd accused has committed the offences punishable under Sec. 120B of IPC. and Ss. 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (for short "UAPA").

(3.) The learned Counsel for the appellant Adv.E.A.Haris contended that the appellant is totally innocent of the allegations levelled against him and he has been falsely implicated due to political rivalry. He argued that the appellant has been arrested and kept in custody by the NIA illegally, by flouting all the statutory norms. He submitted that the appellant, at the time of his arrest, was not even informed about the grounds of his arrest in writing and thereby has violated his constitutional rights. He, by relying on the decisions in Pankaj Bansal v. Union of India [2023 KHC 6887], Prabir Purkayastha v. State (NCT of Delhi) [2024 KHC 6286] and Vihaan Kumar v. State of Haryana [2025 KHC Online 6116], argued that non compliance with the requirement of informing the grounds of arrest under Article 22(1) of the Constitution of India renders the arrest itself illegal. He further contended that the appellant is undergoing custody from 2/8/2023 onwards and there is no reasonable chance of the trial in this case commencing in near future. He also argued that, as per the order dtd. 27/3/2024 in Crl.M.P.No.76/2024 of the trial court, further investigation in this case is still progressing, making the chances of commencement of trial in near future, bleak. He relied on the decisions in Union of India v. K.A. Najeeb [(2021) 3 SCC 713], Javed Gulam Nabi Shaikh v. State of Maharashtra (2024 SCC Online SC 1693), Shoma Kanti Sen v. State of Maharashtra (2024 KHC 6182), Athar Parwez v. Union of India (2024 KHC 6719), to contend that even in cases under UAPA Act, the Apex Court has held that long incarceration and unlikely likelihood of trial being completed in near future is a ground for exercising its constitutional role by the Constitution courts to grant bail. He submitted that the afore dictums can be squarely made applicable to the facts of the present case. He also, by relying on Sec. 6 of NIA Act, and specially clause 5 of that Sec. , contended that the NIA does not have the power to register an FIR directly except in cases falling under sub clause (8) and therefore, the registration of FIR directly by the NIA in the present case is illegal. He would also submit that the 5th accused, against whom similar allegations were raised, has been granted bail by Hon'ble Apex Court after undergoing incarceration for 11 months. Hence he prayed that this appeal may be allowed.