Photos of Osama bin Laden, ISIS flags in phone not sufficient to brand someone a member of a terrorist organisation: Delhi HC

The court further said, “Such type of incriminating material, in today’s electronic era, is freely available on World Wide Web (www) and mere accessing the same and even downloading the same would not be sufficient to hold that he had associated himself with ISIS. Any curious mind can access and even download such content. That act by itself, to us, appears to be no crime.”

The court said that though such an act may give an “insight” about the man’s mindset but when a penal provision which, “in essence, takes away the liberty of anyone and where even grant of bail becomes a sort of exception”, the prosecution needs to have some “extra ammunition” in the shape of “decipherable and tangible material”.

It further said that merely because the man was following “news items related to Middle-East and Israel-Palestine conflict” or had been “accessing hate speeches of hard-line Muslim preachers” would not be sufficient to hold that he was acting in “furtherance” of a banned terrorist organisation.

The bench said that the invocation of Sections 38 and 39 of UAPA seemed to be “erroneous and misplaced”. Section 38 UAPA is an offence relating to membership of a terrorist organisation and Section 39 Offence relating to support given to a terrorist organisation.

The court made the observations while granting bail to Ammar Abdul Rahiman who was arrested by NIA in August 2021 and was booked under various provisions of the UAPA. He had filed an appeal against a trial court’s December 2023 order denying him bail.

The HC, however, said that the observations were “tentative in nature” and were purely for the purpose of “deciding the bail”, adding that it was not a final expression about the merits of the case.

The NIA had alleged that scrutiny of Rahiman’s mobile phone revealed that he had downloaded videos “related to ISIS and brutal killings from Instagram using screen-recorder option”.
The agency further alleged that the mobile also contained photographs of “Osama Bin Laden, Jihad promotion, ISIS flags etc”, which “established his radical mindset and association” with ISIS.

The HC, however, said “at best”, Rahiman can be said to be a “highly radicalised person” who “believed” in the ideology of ISIS — a banned terror organisation.

‘Fascination with ISIS can’t be dubbed as association’

“However, his such fascination with ISIS cannot be dubbed as if he was associated with ISIS and was furthering its cause,” the bench underscored.

It also said there was “no other fact and circumstance”, which could indicate the element of conspiracy.

“Merely because the appellant had downloaded certain software like MobileSafari or Telegram would not mean anything substantial as these are available in public domain and no adverse inference can be drawn merely because of the fact that these were found downloaded in his mobile,” the bench further said.