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Court on Kashmir photojournalist Kamran Yousuf’s bail: ‘His presence on stone-pelting sites intrinsic’

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From: Indian Express By: AFP Published at: March 13, 2018
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It would make “serious dent” in personal liberty of the accused, “as guaranteed under Article 21 of the Constitution”, if the court holds that there are reasonable grounds to show that the charges against Kamran are prima facie true, a Delhi court said while granting bail to the Kashmiri photojournalist, arrested in September.

Additional Sessions Judge Tarun Sherawat dismissed the NIA’s claim that Yusuf was involved in “stone-pelting” and “subversive activities”, and said the agency has not placed on record a “single photo/video” to show the accused was “indulging in stone pelting activities at any site”.

The court also said the NIA could not produce any direct link between Yusuf and others chargesheeted in the case.

Yusuf, 22, has been in Tihar Jail after his arrest by the NIA on September 5. The court took into account the bail of a journalist in Karnataka, who was reporting an incident, and said that it was “apparent” that mere “presence” of the accused at the site of incident is “not sufficient to implicate” the accused.

Yusuf and 11 others were chargesheeted and booked under Unlawful Activities Prevention Act (UAPA).

Some of the observations made by ASJ Sherawat while dismissing the NIA’s claim, as per the detailed order made available to the defence and the prosecution sides on Tuesday:

* “Admittedly Kamran Yusuf was working as a photojournalist and he was covering all kinds of incidents…as such, his presence on sites of stone pelting incidents etc is intrinsic, notwithstanding the fact/contention (that) he was not a permanent employee of any media organisation.”

* “TIP (Test Identification Parade) of the accused should have been conducted, as per procedure, for identification of the accused.”

* On criminal conspiracy: “During the course of arguments, on inquiry, the IO (investigation officer) could not show any direct linkage/chat conversation of Yusuf with other accused. Counsel for the accused submitted that Kamran was allegedly in touch with IPS officer, journalists, but none of them in the co-accused in the case. On the other hand, the prosecution did not furnish details of these other suspects despite several opportunities granted for argument.”

* “…the applicant has never been in touch with the other accused in this case and even if, as per the prosecution case, he was in touch/contact with other suspects, it is not explained why the prosecution did not make them accused in this case, or why they did not investigate on their involvement.”

* “It is surprising to note that the IO (of NIA) is not able to provide details of these persons till date.”

* “…prima facie, I may note that the prosecution has not leveled any specific allegations against Kamran that he has been a member of any particular banned organisation, as the first schedule annexed to UAPA. Even otherwise, mere membership of a banned organisation will not make a person criminally liable unless he resorts to violence or incites people to violence.”

* “Kamran has not found involved in any such offences/terrorist activities in the past. No such material, explosive or otherwise, has been recovered from or at the instance of the accused. Besides there is no such allegation that the accused was arrested soon after the occurrence…”

Arguing on behalf of NIA, special public prosecutor Sidharth Luthra had submitted:

* “Investigations revealed his (Yusuf’s) links with overground workers of terrorist organisations.”

* Electronic evidence such as CDRs (call detail record) show involvement and presence of the accused in offences alleged at various places…

* Statements of three witnesses clearly showed Yusuf’s involvement in stone-pelting.

* Yusuf was chargesheeted for criminal conspiracy on the basis that he had close nexus with the terrorist organisations, which is reflected from his chat conversations with other accused.

* As per Section 43D(5) of UAPA, if the court was of the opinion that there are reasonable grounds for believing that the accusations against the accused is prima facie true for the commission of the offences, then the accused shall not be granted bail at this stage–and only prima facie view was to be taken by this court. Accused was not a permanent employee as he had claimed.

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