K.T. Sankaran, J.

1. The appellant is accused No.6 in S.C.No.2 of 2011(NIA) on the file of the Special Court for Trial of NIA Cases, Ernakulam. The appellant is one among the 43 accused in the case. He moved an application for bail as Crl.M.P.No.426 of 2013, which was dismissed by the court below by the order dated 11.11.2013. The court below held, with reference to the materials on record, that there are reasonable grounds to believe that the appellant had played a key role in the alleged offence and that the bar under the proviso to subsection (5) of Section 43D of the Unlawful Activities (Prevention) Act, 1967 would apply.

2. The prosecution case, in brief, is the following: The accused persons conducted and participated in a training camp at Thangalpara in Wagamon with an intention to bring hatred and contempt against the Government of India, to conduct 'jihad', to commit acts prejudicial to the communal harmony and to incite the commission of unlawful activities. It is alleged that the accused committed offences under Sections 122, 124A, 153A and 120B of the Indian Penal Code, Sections 3, 5, 10 and 13 of the Unlawful Activities (Prevention) Act, 1967 and Sections 25 and 27 of the Arms Act. It is alleged that on 26.11.2007 the appellant purchased two air guns and two packets of pellets, each packet containing 500 pellets, from Cochin Armoury, as evidenced by the cash bill book. The camp was conducted at Wagamon from 10.12.2007 to 12.12.2007. The accused collected arms and explosives. It is alleged that the appellant stayed at Wagamon in Lekha Lodge, along with three others in the second week of December, 2007. The appellant was identified by the person who runs the Lodge. It is alleged that several leaders of Students Islamic Movement of India ('SIMI' for short), which is a banned organisation, attended the training camp. Training was imparted to the participants in mountaineering, swimming, two wheeler racing, rock climbing, jumping up and down from two wheeler, firing etc. The participants who attended the training camp included persons hailing from Kerala, Gujarat, Utter Pradesh, Madhya Pradesh, Jharkhand etc. Apart from physical training, lectures were made on the subject 'jihad in India' with an object of waging war against the Government of India. The prosecution alleged that the appellant entered into a criminal conspiracy in Madhya Pradesh and other places and decided to conduct training camps for the members of SIMI.

3. The prosecution alleged that the appellant was absconding after the incident. A red corner notice was issued by the Interpol and, accordingly, the appellant was detained in Dubai. The appellant was brought to India on 2.8.2013, after completing the formalities for extradition. The appellant was arrested by the NIA at New Delhi. The appellant is in judicial custody from 3.8.2013 onwards. The learned counsel for the appellant submitted that the appellant belongs to Aluva and he has no connection with any terrorist organisation or with the other accused. It is submitted that the appellant did not participate in the training camp at Wagamon and he did not impart training or attend the training classes. The learned counsel submitted that, in the facts and circumstances, the proviso to sub-section (5) of Section 43D of the Unlawful Activities (Prevention) Act is not attracted.

4. We also heard the Special Prosecutor for National Investigating Agency, who supported the order passed by the court below.

5. The offences alleged against the accused are very serious in nature. The allegation is that the appellant and the other accused are members of SIMI. The said organisation is included in the Schedule to the Unlawful Activities (Prevention) Act, 1967 as one of the terrorist organisations. Section 2(m) of the Unlawful Activities (Prevention) Act, 1967 defines “terrorist organisation” as an organisation listed in the Schedule or an organisation operating under the same name as an organisation so listed.

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