Jammu & Kashmir High Court – Srinagar Bench
Javaid Ahmad Bhat vs Union Territory Of Jammu And Kashmir on 3 April, 2025
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
(THROUGH VIRTUAL MODE)
Reserved on: 25.03.2025
Pronounced on: 03.04.2025
CrlA(D) No. 1/2025
Javaid Ahmad Bhat, aged 41 years
S/O Abdul Majeed Bhat
R/O Kohnkhan, Dalgate Srinagar
Through his father
Abdul Majeed Bhat
.....Petitioner(s)
Through: Mr. Azhar-ul-Amin, Advocate.
Vs
Union Territory of Jammu and Kashmir,
Through SHO Police Station Khanyar.
..... Respondent(s)
Through: Mr. Mohsin S. Qadri, Sr. AAG with
Ms. Maha Majeed, Assisting Counsel.
HON‟BLE THE CHIEF JUSTICE
CORAM:
HON‟BLE MR. JUSTICE M A CHOWDHARY, JUDGE
JUDGMENT
(PER: CHOWDHARY-J)
01. The instant appeal has been filed by the appellant-Javaid
Ahmad Bhat through his father Abdul Majeed Bhat, under
Section 21 of the National Investigation Agency Act, 2008
read with Section 483 of the Bharatiya Nagarik Suraksha
Sanhita (BNSS), 2023, for setting-aside the order of
rejection of bail dated 19.12.2024 passed by the Court of
learned Additional Sessions Judge, Special Judge
2 CrlA(D) No. 1/2025
(Designated under NIA Act), Srinagar („NIA Court‟ for short)
in FIR No. 19 of 2022 under Sections 13,18,19,39 of the
Unlawful Activities (Prevention) Act, 1967 (for short, „UAP
Act‟) registered at Police Station, Khanyar in case titled
“Javid Ahmad Bhat Vs. Union Territory of J&K” with a
further prayer that the appellant be released on bail.
02. The appellant has challenged the impugned order on the
grounds that there is no material to give rise to the belief
that accusations against the appellant are prima facie true
and the evidence against the appellant is only
circumstantial; that the appellant has been sought to be
implicated in the case based on his own self-incriminating
statement recorded in police custody before the Executive
Magistrate regarding „knowledge‟ and the foundational
circumstance of „knowledge‟ is not substantiated by any
other evidence, be it ocular, documentary or electronic; that
no reasonable foundation is available for the court to
believe that accusations against the appellant are prima
facie true; that rigour of section 43-D (5) of the UAP Act is
not at all attracted in the case; that the order of rejection of
bail suffers from the patent illegality, so much so, that the
cardinal principle of criminal law is that benefit of doubt
always goes to the accused but the trial court, while
rejecting bail, has not given this benefit to the appellant;
that the trial court has not appreciated the fact that the
accused No. 4-Kaleem Zaffar, who provided Aadhar Cards
and faked the identity of foreign terrorists, is already
3 CrlA(D) No. 1/2025
granted bail by the Court. Lastly, it has been prayed that
the order of rejection of bail of the appellant be set aside
and the appellant be released on bail.
03. Learned counsel for the appellant, in line with the memo of
appeal, argued that the prolonged incarceration of the
appellant , who is languishing in jail for the last two years,
amounts to the pre-trial conviction and deprivation of his
liberty as in the facts and circumstances of the case, no
reasonable foundation is available for the trial court to
believe that accusations against the appellant are prima
facie true as such, the rejection of bail of the appellant is
antithetical to Article 21 of the Constitution of India; that
the rigour of section 43-D (5) of the UAP Act is not at all
attracted in the case; that the trial court has applied strict
burden in framing opinion that the appellant is prima facie
guilty; that the order of rejection of bail suffers from the
patent illegality so much so that the cardinal principle of
criminal law is that benefit of doubt always goes to the
accused and the trial court, while rejecting the bail of the
appellant, has not given this benefit to the appellant; that
the only reason foisted by the trial court for rejection of bail
of the appellant is the ground of severity of allegations and
the risk posed by the appellant‟s release.
04. He has further argued that the prosecution has cited 36
witnesses, out of which only 10 witnesses have been
examined and none of the said 10 witnesses have deposed
4 CrlA(D) No. 1/2025
anything averse against the appellant; that the appellant
has been behind the bars for the last two years, as such he
is entitled to be released on bail. Lastly, he has argued that
the order of rejection of bail of the appellant be set aside
and the appellant be released on bail.
05. Learned counsel for the respondent, ex adverso, vehemently
argued that the appellant-accused had been charged for
having conspired and abetted the commission of terrorist
acts, who has harboured two foreign terrorists initially for a
period of twelve days in his hotel and then in his house and
in this period, two foreign terrorists were abetted to stay
concealing their identity and one of the foreign terrorists
was also provided with a fake aadhar card by one of the
employees of the appellant-accused and those two foreign
terrorists were later neutralized in an encounter; that
during the period of their stay in the properties of the
appellant-accused which they used as hideouts, the said
two foreign terrorists had committed an act of terror
wherein they had killed two CRPF personnel in the heart of
city at Maisuma and that the appellant-accused had
actively participated in the conspiracy and harbouring the
terrorists to carry on terrorist acts to further the designs of
a terrorist organization, as such, the appellant-accused is
liable to be awarded with life imprisonment and the
appellant accused had failed to show any reason that no
„prima facie‟ case is made out against him so as to escape
the rigour of sub-section 5 of Section 43-D of the UAP Act
5 CrlA(D) No. 1/2025
for grant of bail especially when he has been chargesheeted
for the commission of the offences he was charged by the
prosecution agency.
06. Learned counsel for the respondent further argued that in
case the appellant-accused is admitted to bail at this stage,
when most of the prosecution witnesses are yet to be
examined, there is a strong apprehension that given to his
clout, he may try to win-over the witnesses by exerting
influence and there is also likelihood that he may abscond
and may not face the trial in view of the severity of
punishment in case of conviction. He has finally argued
that the trial court has decided the bail application moved
by the appellant-accused touching all the aspects raised by
him perfectly in consonance with law and the impugned
order refusing grant of bail to the appellant-accused does
not warrant any interference by this court, invoking
appellate jurisdiction and prayed that the appeal be
rejected.
07. Heard learned counsel for the parties and perused the
record.
08. The appellant-Javaid Ahmad Bhat, had filed an application,
before the NIA Court, on the ground that in view of the
investigation already having been completed, he was no
more required for investigation and not admitting to bail
shall amount to pre-trial punishment to the appellant,
which is against the principle of concept of liberty in terms
6 CrlA(D) No. 1/2025
of Article 21 of the Constitution; that the accused persons
are presumed to be innocent till the guilt is proved beyond
reasonable doubt and cannot be deprived of their personal
liberty when there is nothing on record, which can connect
them to the commission of any sort of crime; that the
purpose of bail is not to exonerate the accused of their
charges but is merely shifting of custody of sureties, who
undertake their presence; that bail is the rule and jail is
exception; that the offences alleged against the appellant do
not carry punishment of death or life imprisonment, as
such, there was no justification to keep the appellant in
custody.
09. The prosecution had filed objections to the application filed
by the appellant before the court below asserting that out of
36 prosecution witnesses, 10 prosecution witnesses have
been examined and the report submitted by the
Investigating Agency is suggestive of the fact that the
appellant is involved in the commission of offences
punishable under sections. 307 IPC, 7/27 Arms Act, 16,
18, 19, 20, 39 UAP Act; that the offences punishable under
these sections of law carry imprisonment for life and the
rigour of Section 43(D) of UAP Act also bars the jurisdiction
of trial court to grant bail if the accused is „prime facie‟
found involved in commission of such offences; that the
appellant was involved in serious offences, which impinges
upon the peace and security of the State and society in
general and the prosecution has reasonable apprehension
7 CrlA(D) No. 1/2025
that in case the bail application is allowed, the appellant
may jump over the bail and turn absconder; that on
drawing a balance sheet of aggravating and mitigating
factors of the case i.e., involvement of the appellant in the
commission of aforesaid crime, one will come to an
irresistible conclusion that case in question is full of
aggravating factors, as such, motion for grant of bail in
favour of the appellant deserves to be rejected as it is
incumbent upon the court to strike a balance between the
individual and public interest and wherever they may get
pitted against one another, former must give way to the
later.
10. The facts gathered from the trial court record are that on
10.04.2022 at about 1100 hrs, Khanyar police received
information through reliable sources about the presence of
two foreign terrorists in the Bishember Nagar, Khanyar
area, as a result whereof the local police along with CRPF
and security forces launched cordon/search operation and
the terrorists, who were hiding in the house of one Javid
Ahmed Bhat S/O Abdul Majeed R/O Konkhan-the
appellant herein, on seeing the search party, opened
indiscriminate firing upon the security forces resulting to
which, some police and CRPF personnel got injured; that
the firing was retaliated by security forces turning into an
encounter and the holed up terrorists were gunned down
and consequent to this a case was registered vide FIR No.
19/2022 under Sections 307 IPC, 7/27 Arms Act and 13,
8 CrlA(D) No. 1/2025
16, 18, 19, 20, 39 UAP Act at Police Station, Khanyar; that
during investigation, statements of the witnesses recorded,
recoveries and seizures made, disclosures recorded and
other technical data analysis collected which established
that the two foreign terrorists, who had illegally infiltrated
in J&K on the directions of PAK based handler Mubashir
Hamza, were later transported into Srinagar city to carry
out terrorist activities; that Mubashir Hamza who was in
fact Mubashir Ahmad Dar @ Hamza S/O Ghulam Nabi Dar
R/O Syedabad Tral, is believed to have exfiltrated to
Pakistan in the year 2018 and associated with LeT terrorist
outfit there and he motivated two accused, namely, Bilal
Ahmad Dagga and Ashiq Bashir Najar to transport and
accommodate the two foreign terrorists in Srinagar city;
that both the foreign terrorists were transported from
Parimpora in the month of December, 2021 to Soiteng area
of Srinagar city wherefrom they contacted Hamza and then
went to the shop of Ashiq Bashir Najar, who was made to
speak to Hamza through their mobile phone and on the
directions of PAK based handler Hamza, the said Ashiq
Bashir Najar accommodated the two foreign terrorists in a
nearly abandoned house for about 12 days, providing them
food and other daily needs during this period; that
thereafter these two foreign terrorists were again received
by Bilal Ahmad Dagga from the above area of Srinagar and
got them accommodated in Khayam area of Srinagar
through his acquaintance Sabreena in a hotel run by one
9 CrlA(D) No. 1/2025
Javid Ahmad Bhat-appellant herein where they stayed for
around 12 days, however, later the appellant shifted them
to his home located at Bishambar Nagar on the instructions
of Bilal Ahmad Dagga as they felt it safer; that the appellant
initially did not have knowledge of the two foreigners as
terrorists, however, in due course of time, he learnt about it
and was motivated by Bilal to work in league with him; that
as per the chargesheet, these two foreign terrorists with the
assistance of two local accused carried out a terrorist
attack on CRPF personnel deployed in Maisuma area on
04.04.2022 in which two CRPF personnel got martyred.
11. It is the prosecution case that the appellant Javaid Ahmed
Bhat had accommodated the foreign terrorists initially in
his hotel and then in his house and also arranged sim card
for them, besides accommodated them in Padshahibagh
and used to meet them in Bishambar Nagar area
occasionally to discuss and plan their movement and other
terrorist activities. The police concluded the investigation
establishing that all the accused persons including the
appellant conspired with each other to wage war against
the Govt. of India by receiving, transporting, concealing,
harboring and by extending all physical and
communicational logistics to the freshly infiltrated
Pakistani terrorists of proscribed terror organization
“Lashker-e-Toiba” with the aim and motive to spread terror
by way of carrying out terror attacks on the security forces
and on the persons working in the security grid in J&K in
10 CrlA(D) No. 1/2025
particular and based on the investigation, the chargesheet
was concluded against the appellant for the commission of
offences punishable under sections 13, 18, 19 & 39 of UAP
Act as he was alleged to have voluntarily provided
accommodation to the two alleged slain militants in his
hotel (Section 19 of UAP Act) and asked one of his
employees (Saqib) to provide a SIM card to one of the two
alleged slain militants for use (Section 18 of UAP Act).
12. The court below, vide impugned order, has discussed all
important aspects on the case and rejected the bail
application moved by the appellant herein.
13. The contention of the learned counsel for the appellant that
the learned NIA court has not appreciated the submission
made with regard to the fact that the appellant not to have
committed any offence punishable under the Chapters of IV
and VI of UAP Act as no such offences are made out on the
basis of the evidence collected by the prosecution, seems to
be untenable in law in view of the fact that the trial court
has framed charges for the trial of the appellant for the
commission of the aforementioned offences and to a pointed
question to the learned senior counsel appearing for the
appellant that whether the order framing charge has been
assailed or not, the answer was replied in negative and that
the appellant has been facing trial of his case wherein out
of 36 witnesses, 10 prosecution witnesses are stated to
have been examined.
11 CrlA(D) No. 1/2025
14. The appellant-accused has been charged for the
commission of offences punishable under Sections 13, 18,
19 and 39 of the UAP Act. Section 13 (Punishment for
unlawful activities) provides for a punishment for
unlawful activities and is punishable with imprisonment for
a term which may extend to seven years and shall also be
liable to fine. Section 18 (Punishment for conspiracy)
provides that whoever conspires or attempts to commit or
advocates, abets, advises or incites, directs or knowingly
facilitates the commission of, a terrorist act or any act
preparatory to the commission of a terrorist act, shall be
punishable with imprisonment for a term which shall not
be less than five years but which may extend to
imprisonment for life and shall also be liable to fine.
Section 19 (Punishment for harbouring) provides that
whoever voluntarily harbours or conceals, or attempts to
harbour or conceal any person knowing that such person is
a terrorist shall be punishable with imprisonment for a
term which shall not be less than three years but which
may extend to imprisonment for life, and shall also be liable
to fine. It is to be noted that both these offences under
sections 18 and 19 of UAP Act fall under Chapter IV of the
UAP Act.
15. Section 39 (Offence relating to support given to a
terrorist organization) of the UAP Act provides that
whoever commits the offence relating to support given to a
terrorist organization shall be punishable with
12 CrlA(D) No. 1/2025
imprisonment for a term not exceeding 10 years or with fine
or with both. It is not out of place to mention that the
offence punishable under section 39 of the UAP Act is a
part of Chapter VI of the UAP Act.
16. Sub-section 5 of section 43(D) of the UAP Act creates a
rigour to the grant of bail to an accused, who is alleged to
have committed offence punishable under Chapter IV and
VI of the UAP Act. It will be profitable to extract the
relevant part of the said Section as under:
“43(D) (5)-Notwithstanding anything contained in
the Code, no person accused of an offence punishable
under Chapters IV and VI of this Act shall, if in
custody, be released on bail or on his own bond
unless the Public Prosecutor has been given an
opportunity of being heard on the application for
such release:
Provided that such accused person shall not
be released on bail or on his own bond if the Court, on
a perusal of the case diary or the report made under
section 173 of the Code is of the opinion that there
are reasonable grounds for believing that the
accusation against such person is prima facie true.”
17. Having regard to the aforesaid provision contained in sub-
section 5 of Section 43(D) of UAP Act, the contention raised
by the learned counsel for the appellant-accused that the
rigour of section is not attracted pales into insignificance as
the appellant accused is stated to have been charged for the
commission of offences punishable under Sections 18 and
13 CrlA(D) No. 1/2025
19 falling under Chapter IV and Section 39 falling under
18. The trial court while considering the application for grant of
bail and so this appellate court while hearing the appeal
against the rejection of bail cannot go into the intricate
questions of whether the offences are made out or not as
the evidence cannot be appreciated so minutely at the stage
of consideration of bail, which is expected to be considered
at the trial stage.
19. It appears that the learned judge presiding over the NIA
Court has discussed all the points raised by the appellant
before the trial court and the point wise determination has
been given with elaborate discussion on each and every
point raised.
20. This court, after hearing both the sides, perusal of
chargesheet and other incriminating material, while
exercising appellate jurisdiction, does not find any illegality
or perversity in the impugned order, which is, thus, upheld,
as a result the appeal fails and is, accordingly dismissed.
(M A CHOWDHARY) (TASHI RABSTAN)
JUDGE CHIEF JUSTICE
JAMMU
03.04.2025
Naresh/Secy
Whether the order is speaking: Yes
Whether the order is reportable: Yes
.....
Naresh Kumar
2025.04.03 14:38
I attest to the accuracy and
integrity of this document
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