Mere holding of certain literature through which violent acts may be propagated would not attract the provisions of Unlawful Activities (Prevention) Act, the Supreme Court on Friday said as it granted bail to activists Vernon Gonsalves and Arun Ferreira in the Elgar Parishad-Maoist links case.
A bench of Justices Aniruddha Bose and Sudhanshu Dhulia said the actual involvement of Gonsalves and Ferreira in any terrorist act has not surfaced from any third-party communications.
"Mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of Section 15(1)(b) (use of criminal force or the show of criminal force or attempts to do so or cause the death of any public functionary ) of the said Act.
"Thus, prima facie, in our opinion, we cannot reasonably come to a finding that any case against the appellants under Section 15(1) (b) of the 1967 Act can be held to be true," the bench said.
According to the NIA, various letters and other materials recovered from the arrested co-accused persons including Surendra Gadling and Rona Wilson showed the involvement of Gonsalves and Ferreira with the Communist Party of India (Maoist).
The top court said no evidence of their continued membership after the party was classified as a terrorist organisation has been brought to its notice.
"Nor is there any reliable evidence to link Indian Association of People's Lawyer (to which Ferreira belonged) with CPI (Maoist) as its frontal organisation," it said.
The apex court said the contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused.
"Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused are in the nature of ideological propagation and allegations of recruitment.
"No evidence of any of the persons who are alleged to have been recruited or have joined this 'struggle' inspired by the appellants has been brought before us. Thus, we are unable to accept NIA's contention that the appellants have committed the offence relating to support given to a terrorist organisation," the bench said.
A bench of Justices Aniruddha Bose and Sudhanshu Dhulia said Gonsalves and Ferreira shall not leave Maharashtra without the trial court's permission and surrender their passports.
"Considering the fact that almost five years have elapsed, we are satisfied they have made out a case for bail. The allegations are serious, no doubt, but for that reason alone, bail cannot be denied to them," the bench said.
Imposing a number of conditions, the apex court directed the two activists to use one mobile phone each and let the National Investigation Agency (NIA), which is probing the case, know their addresses.
The apex court also directed that the mobile phones of the activists should be charged and active round-the-clock.
"They shall keep the location status of their mobile phones active 24 hours a day and their phone shall be paired with NIA's IO to enable him to identify their exact location at any time. They shall also report to the investigating officer once a week," the bench said.
It also granted liberty to the NIA to seek cancellation of their bail if there is any violation of the bail conditions.
The activists had moved the top court against a Bombay High Court order rejecting their bail pleas.
The Communist Party of India-Maoist has been placed in the First Schedule to the 1967 Act as a terrorist organisation by a notification dated June 22, 2009, issued in terms of Section 2(m) of the Unlawful Activities (Prevention) Act, 1967 Act.
The prosecution's case is that the Gonsalves and Ferreira played an active role in the recruitment of and training for cadres of the said organisation and Ferreira also had a role in managing the finances of that organisation.
The case pertains to the Elgar Parishad conclave held in Pune on December 31, 2017 which, according to the Pune police, was funded by Maoists.
The inflammatory speeches made there led to violence at the Koregaon-Bhima war memorial in Pune the next day, police had alleged.
