J&K HC Grants Bail to UAPA Accused Stressing arresting agency must justify that arrest is based on clear and present danger

LI Network

Published on: November 20, 2023 at 21:59 IST

The Jammu & Kashmir and Ladakh High Court recently delivered a landmark ruling, emphasizing that in Unlawful Activities (Prevention) Act (UAPA) cases, the arresting agency must justify the arrest based on the “clear and present danger” the accused poses to society [Peerzada Shah Fahad v. UT of J&K and Anr].

The court held that prima facie evidence alone would not suffice if the arrest lacked justification under the doctrine of “clear and present danger.”

The bench, comprising Justice Atul Sreedharan and retired Justice Mohan Lal, stated that failure to satisfy the court on this aspect would violate the accused’s fundamental rights.

While the court acknowledged the stringent conditions for bail under UAPA, it ruled that an accused, even with a prima facie case against them, could be granted bail if the arrest lacked justification due to the absence of a “clear and present danger” to society.

The court clarified that there is no universal rule to assess whether an accused poses a “clear and present danger”; it must be evaluated based on the specific facts and circumstances of each case.

This ruling came in the context of the bail granted to journalist Fahad Shah, accused under UAPA for an article published on The Kashmir Walla news portal in 2011.

The court’s decision implies that an accused, despite a prima facie case, can secure bail if their arrest lacked justification and did not present a “clear and present danger” to society.

While Section 43D (5) of UAPA restricts the release of accused involved in terrorist activities, the court emphasized that legislative intent was to prevent those genuinely posing a “clear and present danger” rather than indiscriminate incarceration.

The court declared an arrest without legal justification under UAPA as an arbitrary exercise of police discretion and a violation of constitutional rights under Articles 14 and 21.

Regarding Shah’s case, the court found insufficient evidence that the article incited violence or contributed to militancy. The court opined that Shah’s arrest without legal justification would render the bar of Section 43D (5) of UAPA inconsequential, entitling him to bail.

On the charges, the court held that the offense of conspiracy under Section 18 of UAPA was not made out, but Shah could face trial for unlawful activities under Section 13.

The court found no evidence supporting the accusation of waging war against the Government of India and deemed the article non-inflammatory based on caste or religion.

However, Shah may stand trial for receiving overseas remittances without notifying authorities under the Foreign Contribution Regulation Act.

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