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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940 CRL.A.No. 429 of 2018 (AGAINST THE ORDER IN CRL.M.P.NO.26/2018 IN RC NO.01/2018/NIA/KOC DATED 12/3/2018 OF THE SPECIAL COURT FOR TRIAL OF NIA CASES, KERALA, ERNAKULAM)

APPELLANT/PETITIONER/1ST ACCUSED. MUHAMMED RIYAS D.V.P. AGED 26 YEARS, S/O RASHEED P.P, AL SAFA, MANGAD, PERINGADI PO, NEW MAHE. BY ADVS.SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SRI.M.A.AHAMMAD SAHEER SMT.K.AASHA

RESPONDENT/RESPONDENT/COMPLAINANT.: UNION OF INDIA REPRESENTED BY NATIONAL INVESTIGATION AGENCY, KOCHI, THROUGH THE PUBLIC PROSECUTOR, NIA. . BY ADV. SRI.M.AJAY, SPL. P.P FOR NIA THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No. 429 of 2018

APPENDIX: APPELLANT'S ANNEXURES: ANNEXURE A1: TRUE COPY OF THE NOTARIZED AFFIDAVIT DATED 16.04.2016 ISSUED BY THE DEFACTO COMPLAINANT. ANNEXURE A2: TRUE COPY OF THE RECEIPT DATED 16.04.2016 FOR THE ENROLMENT OF AADHAR CARD OF THE DEFACTO COMPLAINANT. ANNEXURE A3: TRUE COPY OF THE CERTIFICATE OF MARRAIGE DATED 21.05.2016 ISSUED BY THE GOVERNMENT OF KARNATAKA. ANNEXURE A4: TRUE COPY OF THE JUDGMENT DATED 23.01.2017 IN WPCRL NO. 483/2016 OF THE HON'BLE HIGH COURT OF KERALA. ANNEXURE A5: TRUE COPY OF THE BOARDING PASS DATED 04.10.2017 ISSUED BY AIR INDIA IN FAVOUR OF THE DEFACTO COMPLAINANT. ANNEXURE A6: TRUE COPY OF THE WHATSAPP CHAT BETWEEN THE APPELLANT AND THE DEFACTO COMPLAINANT FROM 23.10.2017 TO 087.11.2017. RESPONDENT'S ANNEXURES:

NIL //TRUE COPY// PA TO JUDGE

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A.M.SHAFFIQUE & P.SOMARAJAN, JJ -----------------------------------Crl.A. No. 429 of 2018 ------------------------------Dated this the 12th day of April, 2018 -------------------------------JUDGMENT SHAFFIQUE, J. 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

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his wife had submitted that she was not being illegally detained and she had voluntarily married the appellant. expressed her desire to live with him.

She also

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

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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.

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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

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passed by the NIA Court and bail is granted to the appellant on the following conditions: 1. That

the

appellant

shall

furnish

simple

bond

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

photographs or videos of the defacto complainant.

Sd/A.M.SHAFFIQUE, JUDGE sd/P.SOMARAJAN, JUDGE kp

any