P&H HC releases man arrested in 2020 for ‘anti-national activities’ for possessing a phone that displayed ‘objectionable’ gun pictures

The Punjab and Haryana High Court has granted bail to a man arrested in 2020 for allegedly involving in “anti-country” activities under the stringent Unlawful Activities (Prevention) Act (UAPA) in 2020.

Justice Anupinder Singh Grewal And Judge Lapita Banerji noted that “It is merely alleged that a mobile phone was seized from him, which allegedly contained offensive photographs of weapons and ammunition, etc. No firearms or other incriminating material has been seized to date. The complainant has been in custody for over 3 years and 8 months..”

The panel of judges stated: “Article 21 of the Indian Constitution enshrines the fundamental right to protection of life and liberty, which also includes the inalienable right to a speedy trial. The Supreme Court has held in a series of judgments that only a long period of pre-trial detention entitles the accused to bail under UAPA invoking Article 21 of the Indian Constitution. The appellant has been in custody for about 3 years and 8 months.”

These observations were made during the hearing of an appeal against an order of the Patiala court registering his bail application under sections 13, 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. [UAPA]Section 25 of the Arms Act of Samana Police Station, Patiala District, has been repealed.

The applicant's lawyer, Arjun Sheoran, argued that although the applicant was accused of involvement in illegal activities, no other incriminating material had been recovered from him other than the recovery of a mobile phone.

The prosecutor submits that the allegations against the appellant consist of his alleged involvement in anti-state activities, but that only a mobile phone was seized from him, which allegedly contained offensive photographs of certain persons with weapons and the motif “Referendum 2020”.

He further added that the complainant was in contact with anti-national elements and that they were on the verge of carrying out terrorist activities.

After hearing the submissions, the Court stated: “The complainant has been in custody for around 3 years and 8 months. The Constitutional Court wants to prevent the lengthy and arduous process from becoming a punishment in itself.”

Relying on Union of India v. KA Najeeb, it was held that lengthy detention is a significant factor in granting bail under UAPA. Article 21 of the Indian Constitution provides the right to a speedy trial and lengthy detention would be a good reason to grant bail to a pretrial detainee for an offence punishable under UAPA.

“It was also held that the embargo under Section 43-D of the UAPA does not abrogate the powers of the court to give effect to Article 21 of the Indian Constitution,” the court added.

The court also referred to the case of Shoma Kanti Sen v. State of Maharashtra and Anr [2024 LiveLaw (SC) 280]The Supreme Court said: “Once it is obvious that a timely trial is not possible and the accused has already been detained for a significant period of time, the court would normally be obliged to extend the period of detention on bail, since any form of deprivation of liberty must be proportionate to the facts of the case and follow a just and fair trial.”

With the statement: “Having regard to the above, in particular when the applicant has been in detention for 3 years and 8 months and no end to the trial is in sight”The court overturned the decision to revoke bail and allowed the appeal.

The court granted the motion while imposing certain conditions, so the motion was dismissed.

Mr. Arjun Sheoran, Advocate, Mr. Rohan Gupta, Advocate and Mr. Tejasvi Sheokand, Advocate for the applicant/appellant.

Mr HS Sullar, Senior DAG, Punjab.

Title: RAJ KUMAR @ LOVEPREET @ LOVELY vs STATE OF PUNJAB

Quote: 2024 LiveLaw (PH) 237

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