Delhi High Court
Shabir Ahmed Shah vs National Investigation Agency on 12 June, 2025
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28.05.2025
Pronounced on:12.06.2025
+ CRL.A. 600/2023
SHABIR AHMED SHAH .....Appellant
Through: Mr. Colin Gonsalves, Sr. Adv.
With Mr. Kamran Khwaja,
Adv.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. Sidharth Luthra, Sr. Adv.
with Mr. Akshai Malik,
SPP/NIA with Mr. Ayush
Agarwal, Mr. Khawar Saleem,
Mr. K.P. Rustom Khan, Advs.
Mr. B.B. Pathak, DSP NIA.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
SHALINDER KAUR, J.
1. The present Criminal Appeal has been filed by the Appellant
under Section 21 of the National Investigation Agency („NIA‟) Act,
2008 to assail the Order dated 07.07.2023 passed by the learned
Additional Session Judge – 03 (New Delhi), Patiala House Courts,
New Delhi (hereinafter referred to as, „Trial Court‟) in NIA case
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 1 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
bearing RC No. 10/2017/NIA/DLI titled NIA v. Hafiz Saeed & Ors.,
whereby the Bail application of the Appellant was dismissed.
2. The present case emanates from the registration of the NIA case
bearing no. RC-10/2017/NIA/DLI for offences under Sections 120B,
121 and 121A of the Indian Penal Code, 1860 (IPC), and Sections 13,
16, 17, 18, 20, 38, 39 and 40 of the Unlawful Activities (Prevention)
Act, 1967 [UA(P) Act], by the NIA, pursuant to the Order No.
11011/2017-IS-IV issued by the Ministry of Home Affairs on
30.05.2017. The Prosecution‟s case is premised on an alleged
Conspiracy hatched among several accused persons who were
purportedly engaged in secessionist activities in the erstwhile State of
Jammu and Kashmir („J&K‟) through various terrorist activities, such
as organization of violent protests, instigating the general public to
commit violence, pelting of stones at the Security Forces, burning of
Schools, damaging public property, etc and waging war against the
Union of India. Their ultimate aim and objective was to seek the
secession of the J&K from the Union of India, all in the garb of
„Freedom‟.
3. The Prosecution‟s case is that the NIA launched an
investigation and tried to unfold the said Conspiracy, during which it
was allegedly found that the accused persons were members of
various terrorist organizations and unlawful associations, such as
Lashkar-e-Taiba (LeT), Hizb-ul-Mujahideen (HM), Jammu Kashmir
Democratic Freedom Party (JKDFP), Jammu Kashmir Liberation
Front (JKLF), Jaish-e- Mohammad (JoM) etc., and are members of the
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 2 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
All Parties Hurriyat Conference (APHC). Their operations were
allegedly funded through a regular influx of large sums of money
obtained by them through domestic and international unlawful
channels, including hawala networks, etc. This funding, it is alleged,
sustained the continued perpetration of violence in the valley, despite
the heavy deployment of the Security Forces.
4. The investigation allegedly established that the secessionist and
separatist leaders were also raising funds, to be utilized in the
aforementioned terrorist and separatist activities through the Line of
Control (LoC) trade. This was allegedly done by way of directing the
Kashmiri traders to engage in under-invoicing and under-weighing of
the goods which were imported through the LoC barter trade and to
commit irregularities in the maintenance of records, etc. They would
then sell the goods to the traders in Delhi, and a portion of the profits
was allegedly used for anti-national propaganda, with the objective of
mobilizing violent protests and other unlawful activities in J&K. The
traders, so engaged, would have relatives across the borders who were
closely associated with the terrorist organisations, especially Hizb-ul-
Mujahideen, and who would smuggle weapons and contrabands.
5. Upon conclusion of the investigation, though, the NIA filed its
main Chargesheet on 18.01.2018 under Sections 120B, 121, 121A,
and 124 A of the IPC, read with Sections 13, 16, 17, 18, 20, 38, 39,
and 40 of the UA(P) Act against 12 accused persons, however, the
investigation was still underway with respect to the other suspected
individuals who were being interrogated by the NIA.
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 3 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
6. In this background, the first Supplementary Chargesheet came
to be filed by the NIA, and in the course of the investigation, the
Appellant was arrested on 04.06.2019.
7. In continuation of the investigations, a second Supplementary
Chargesheet was filed by the NIA on 04.10.2019 against the Appellant
under Sections 120B, 121, 121A, and 124A of the IPC read with
Sections 13, 16, 17, 18, 20, 38, 39, and 40 of the UA(P) Act.
Following additional accused persons were also arrayed in the said
Supplementary Chargesheet.
Mohd. Yasin Malik @ Aslam (A-14)
Shabir Ahmad Shah @ Shabir Shah (A-15)
Masarat Alam @ Masarat Alam Bhat (A-16)
Syeda Aasiya Andrabi @ Asiya Andrabi @ SyedahAasiya Firduous
Andrabi (A-17)
Abdul Rashid Sheikh @ Er. Rashid @ Sheikf Rashid (A-18)
8. The gist of allegations against the Appellant, as per the
Prosecution, is that he has played a substantial role in facilitating a
separatist/militant movement in the J&K by inciting and instigating
the general public to chant slogans in support of the secession of the
J&K, paying tribute to the family of slain terrorists/militants by
eulogizing them as „martyrs‟, receiving money through hawala
transactions and raising funds through the LoC trade, which were
allegedly used to fuel subversive and militant activities in the J&K.
9. The Prosecution has alleged that the Appellant is the head of the
JKDFP, a constituent of the APHC. During the course of further
investigation, the NIA searched the Appellant‟s residence on
26.02.2019 and allegedly recovered incriminating materials, including
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 4 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
documents and electronic devices.
10. As per the Prosecution‟s case, the Appellant had earlier joined
the People‟s League, a secessionist organization promoting the merger
of the State of J&K with Pakistan. The said League allegedly founded
its own militant outfit, vis-a-vis the Muslim Janbaz Force, which
launched militant attacks on the Security Forces. Many of its members
later joined the APHC, headed by Moulvi Umar Farooq.
11. The Appellant was initially arrested in 1989 in Ramban, District
Doda, while allegedly attempting to cross over to Pakistan. Upon
being released on Bail in 1994, he joined the APHC on the proposal of
SAS Geelani and Abdul Gani Lone. In 1996, he left the APHC and
formed his own organization under the name JKDFP, and became its
Chairman on 24.05.1998.
12. The Prosecution has further alleged that the Appellant‟s
organization has been one of the frontline secessionist entities,
vigorously pursuing the secession of the J&K from the Union of India.
Since the formation of the JKDFP, the Appellant allegedly became the
mouthpiece of Pakistan‟s ISI, which had been handling him through a
Pakistan based representative, namely, Mehmood Ahmed Sagar.
13. Further, it is alleged that from the Compact Disk (CD)
recovered from the Appellant‟s residence, it was revealed that the
Appellant had made inflammatory speeches at Kishtwar, Bhadarwa,
Anantnag, Kargil, Poonch, etc, instigating the general public to chant
slogans in furtherance of secessionist activities in the J&K and thus,
created a surcharged atmosphere against the Government of India.
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 5 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
14. Investigations have also allegedly revealed that the Appellant
was in contact with Pakistan based militant leaders, including Syed
Salahuddin, Hafiz Mohd. Saeed and Iftikar Haidar Rana. The
Appellant is also alleged to have been supported by Pakistani
Agencies through Hurriyat representatives Shafi Shair and Mehmood
Sagar, both based in Pakistan.
15. The Prosecution has also alleged that the Enforcement
Directorate (ED) had filed a complaint against the Appellant under the
Prevention of Money Laundering Act, 2002 (PMLA) case bearing
ECIR No. 04/DZ/2007, based on the FIR No. 122/2005 registered
under Sections 121, 121A, 122, 123, and 120B of IPC, and Sections 4
and 5 of the Explosive Substances Act, 1883 read with Section 25 of
the Arms Act, 1959 by the Special Cell, Delhi Police („Predicate
FIR‟), wherein it was alleged that one Aslam Wani, an associate of the
Appellant and a cash mule for the terrorist organization Jaish-e-
Mohammad, collected hawala funds in Delhi and handed them over to
the Appellant for carrying out subversive and anti-national activities.
The said Aslam Wani was arrested on 26.08.2005 with Rs. 63 lakhs
received through hawala channels, along with explosives, arms, and
ammunition by the Delhi Police. The said PMLA case is stated to be
currently pending trial.
16. According to the Prosecution, during the investigations, the
NIA had recovered the Appellant‟s email ID, and scrutiny of the
downloaded emails therefrom, revealed that he had received an email
from Shaifi Shair, who disclosed therein about the monies distributed
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 6 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
in the U.S. Dollars and Indian Rupees among various accused persons,
including the Appellant. It is further the case of the Prosecution that
the emails found in the inbox of the Appellant contained the pictures
of slain militants along with an attachment titled “Confidential Army
report on Lashkar-e-Toiba Apr 2014”, wherein the sender claimed
that the militant who was killed, was an associate with LeT and he
hailed from Sindh, Pakistan. The sender had also warned the
Appellant to remain alert in future. Additionally, in the year 2016, the
Government of Pakistan sent an amount of Rs. 1.10 Crore to the
Appellant for distribution amongst the individuals who were injured
while pelting stones at the Security Forces in the J&K.
17. The investigations also allegedly revealed that, on 29.04.2015,
the Appellant had received a sum of Rs. 10 Lakhs from the hawala
conduit, the accused no. 10, Zahoor Ahmad Shah Watali, and that the
Appellant was involved in the smuggling of illegal weapons, drugs,
and counterfeit currency through the LoC trade to further the
secessionist activities.
18. Upon appreciating the arguments advanced by the parties, the
learned Trial Court, vide Order dated 16.03.2022, framed the Charges,
against the Appellant under Sections 120B, 121, and 121A of the IPC
read with Sections 13 and 15, of the UA(P) Act, both read with
Section 120B of the IPC; and Sections 17, 18 & 20 of the UA(P) Act,
along with other accused persons.
19. The Appellant, thereafter, preferred a Bail Application under
Section 437 of the Code of Criminal Procedure, 1973, which came to
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 7 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
be dismissed by the learned Trial Court vide Order dated 07.07.2023.
Aggrieved thereby, the Appellant has preferred the present Appeal
before this Court.
SUBMISSIONS ON BEHALF OF THE APPELLANT:
20. Mr. Colin Gonsalves, the learned Senior Counsel for the
Appellant, at the outset submitted that neither the name of the
Appellant nor the name of the Appellant‟s organization finds any
mention in the main Chargesheet or the first Supplementary
Chargesheet, wherein the primary allegations and interlinkages
relating to the alleged Conspiracy between several accused persons are
outlined. He submitted that it is only for the first time in the Second
Supplementary Chargesheet that the name of the Appellant appears,
and he has been arrayed as an accused by the Prosecution.
21. The learned Senior Counsel submitted that the videos recovered
by the Prosecution to implicate the Appellant in the present NIA case,
belong to the year 1996 and prior, the most recent being over 25 years
old. He submitted that the same videos have been used by the
Prosecution in as many as 24 FIRs against the Appellant, to keep him
incarcerated for a prolonged period, based on the same allegations of
delivering „inflammatory speeches‟ and inciting violence in the J&K,
thereby creating a „surcharged atmosphere‟.
22. Moreover, it was submitted that the Prosecution has not been
able to show any specific incident involving a criminal act that can be
attributed to the Appellant, either in the earlier FIRs or in the present
one, let alone any terrorist act and therefore, till date there has been no
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 8 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
conviction in any of the said FIRs, while the Appellant continues to
languish in judicial custody.
23. Mr. Gonsalves further submitted that rather, what can be seen
from the videos presented by the Prosecution into evidence, is that the
Appellant partakes in a peaceful gathering speaking about the grief of
the mothers who have lost their young children and the suffering of
the people of Kashmir without any instigation to undertake any
criminal activity as wrongly alleged by the Prosecution. In these
videos, he contended, the Appellant has also emphasised the teachings
of Islam, including the duty to aid both victims and even enemies. He
argued that no overt act, by any stretch, has been made out against the
Appellant in these speeches/gatherings, which are otherwise
innocuous in nature.
24. He submitted, while further pointing towards these videos, that
they have been recorded from a distance, and the identity of the
Speaker cannot be made out. Furthermore, the Scrutiny report (AD-
116), which pertains to articles allegedly seized from the house of the
Appellant, does not even specify the source, date, or time of the
creation of these videos.
25. The learned Senior Counsel further drew our attention to the
Videos seized vide Seizure Memo, that is, AD-11, and submitted that
these videos depict processions, protests, chanting of slogans, and
making of inflammatory speeches. However, none of these videos are
accompanied by a Certificate under 65B of the Indian Evidence Act,
1872 (IE Act). Therefore, the Prosecution has failed to establish the
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 9 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
primary source of the contents of these videos and in the absence of
the said Certification, they are not admissible into evidence.
Nevertheless, he submitted that these do not seem genuine but appear
to be fabricated in order to falsely array the Appellant as an accused in
the alleged Conspiracy.
26. The learned Senior Counsel submitted that for argument‟s sake,
even if these videos are taken to be authentic, in the absence of any
terrorist act being attributed to the Appellant, the videos alone cannot
form the basis for Prosecution under the UA(P)A against the
Appellant.
27. He further submitted that the learned Trial Court grossly erred
in not appreciating that the Appellant is neither a member of the
APHC nor is his party JKDFP, one of the constituents of it and his
party does not even reflect in the list of constituents of APHC
produced by the Prosecution. In fact, in 1996, the Appellant had left
the APHC and Hurriyat Leaders, to form his own separate
organization, that is, JKDFP in 1998 and became its Chairman. He
further submitted that the Appellant‟s organization was declared an
unlawful association only sometime in April, 2023, which is several
years later from the date of his arrest in the present case.
28. He submitted that the Appellant is a reputed political leader
who, in his pursuit of a peaceful resolution to the Kashmir issue, has
met certain prominent Indian political leaders. He was also invited to a
round table conference in Delhi with the erstwhile Prime Minister to
address the Kashmir issue. He submitted that there are also certain
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 10 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
photographs in this regard and these facts, thus, water down the
Prosecution‟s version that the Appellant‟s aim is to incite violence
through his speeches, whereas his aforementioned conduct speaks
otherwise.
29. Furthermore, he submitted, from the statement of Protected
Witness AW-62 (John), on which the Prosecution heavily relies on, no
specific allegation can be made out against the Appellant and it is
devoid of any particular details as to when, where and what was
discussed in the meetings that the Appellant is alleged to have
attended, or as to any particular incident of stone pelting which was
instigated by him. Neither any details of the money allegedly received
by the Appellant, as to by whom or how this money was received by
him nor its trail has been stated by this witness.
30. He submitted that as far as the statement of the other Protected
Witness AW-81, Aslam Wani, and the allegation of terror funding are
concerned, nothing is forthcoming from the same as there are again no
details of the alleged transfer of money. He submitted that an alleged
transaction from 19 years ago cannot be made a basis to implicate
someone in a penal statute, let alone under a Special Legislation, such
as the UA(P) Act. Further, this witness is alleged to have collected
cash on behalf of the Appellant from a person claiming that he was
from Pakistan. However, the Appellant was in Jail at that time and
Aslam Wani had been acquitted on the Charge of carrying Rs. 62
lakhs, received by the Appellant, in the predicate FIR and his acquittal
has been upheld by this Court vide Judgement dated 31.10.2017. He
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 11 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
submitted that the allegations in the statement of AW-81 prove no link
between the Appellant and the alleged hawala transfer ever being
made to the Appellant, since there had been no recovery from either of
them. Furthermore, he submitted that the Appellant is on Bail in the
PMLA case.
31. Adverting to the loose sheet of paper, that is D132(a)/23, the
learned Senior Counsel submitted that it is an unsigned statement
attributed to Ghulam Mohammad Bhatt, an accountant of co-accused
Zahoor Ahmad Shah Watali. It contains a single entry of Rs.
10,00,000 allegedly relating to a transaction with the Appellant on
29.04.2015. However, on the date of the said entry, the Appellant was
again in Jail, and has been from 2011 to 2017. The alleged transaction
has nothing to do with the Appellant and in the absence of any details
as to the trail of the said transaction, as to its source, and other
relevant particulars, it only makes for a weak evidence. Furthermore,
this witness does not name the Appellant, which is the most relevant
factor in favour of the Appellant.
32. So far as the evidence of AW-69 is concerned, the learned
Senior Counsel contended that this witness mentions an alleged loan
given to Fayaz Ahmed Kuloo, an initial loan of Rs. 5 lakhs from
Nayeem Ahmad Khan, at the time when the Appellant was
incarcerated and following the Appellant‟s release, the subsequent
loans taken were allegedly asked to be returned to him, amounting to
Rs. 28 lakhs. He submitted that the testimony of this witness is riddled
with ambiguity, with no details of the transactions, as to what they
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 12 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
were for, when they were made, and the place where the alleged
handing over the cash took place. Moreover, this witness states that
the alleged meeting took place in 2016, however, he does not mention
the Appellant or his alleged role in the said meeting, therefore, nothing
substantial comes out of it.
33. The learned Senior Counsel further submitted that the
Prosecution is also relying upon this witness, that is, AW-69 as he
allegedly stated that the Appellant had received funds from Pakistan,
however, this claim is completely unsubstantiated by the Prosecution,
there is no monetary trial to corroborate the same and neither the
Prosecution has placed on record any supporting material thereto.
34. He submitted that the statement of AW-67 is innocuous,
inasmuch as it contains no specific detail and merely refers vaguely to
a sum of Rs. 20-25 lakhs being borrowed from the Appellant in 1993.
However, the Appellant was in Jail since 1989 and was released only
in 1994, therefore, his testimony is impeached on this ground alone.
He further submitted that an email from one Shafi Shair is also relied
upon by the Prosecution to arraign the Appellant in the Conspiracy,
however, the same fails to bring out any particular details as to
transactions and in the absence of any information as to the source of
the email, it cannot be relied upon.
35. He submitted that even the statement of AW-79, Razak, is not
helpful to the Prosecution, as it pertains to a hotel deal in which the
Appellant had relinquished his 25% share. He pointed out that this
matter is already the subject of proceedings before the ED. This
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 13 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
witness also alleged that his daughter was admitted to an MBBS
course in a medical College in Pakistan on the recommendation of the
Appellant, however, it was argued that this is a weak attempt to link
the Appellant to the Pakistani establishment. Moreover, there is no
documentary evidence to support this claim.
36. Mr. Gonsalves submitted that the Appellant is 74 years old and
has been arrayed as an accused in 24 FIRs, but has never been
convicted for a single offence. He has been in custody since 1991 and,
intermittently, for a total of 36 years till date. The Prosecution has
cited approximately 400 witnesses, of whom only 20-21 witnesses
have been examined till date. Considering the absence of any specific
allegations in the present case and the long period of incarceration of
five years undergone by the Appellant, the learned Senior Counsel
prayed that he deserves to be enlarged on Bail. He submitted that the
Appellant‟s right to life and personal liberty, enshrined under Article
21 of the Constitution of India, should be protected, subject to any
conditions imposed upon him as deemed appropriate by this Court.
37. The learned Senior Counsel, in support of his contentions, has
relied upon the following decisions:
Vernon v. State of Maharashtra & Anr., (2023) 15 SCC 56.
Dr. Anand Teltumbde v. National Investigation Agency, 2022 SCC OnLine
Bom 5174.
Union of India v. K.A. Najeeb, (2021) 3 SCC 713.
Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath
Bhattacharya @ Aseem Kumar Bhattacharya v. National Investigation
Agency, (2022) 1 SCC 695.
Thwaha Fasal v. Union of India, (2021) SCC OnLine SC 1000.
Dr. P. Varavara Rao v. National Investigation Agency, 2022 SCC OnLine
SC 1004.
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 14 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
Anvar P.V. v. P.K. Basheer and Ors., (2014) 10 SCC 473.
Shaheen Welfare Association v. Union of India, (1996) 2 SCC 616.
Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC
51.
Sagar Tatyaram Gorkhe and Anr. v. State of Maharashtra (2021) 3 SCC
725.
Angela Harish Sontakke v. State of Maharashtra (2021) 3 SCC 723.
Devangana Kalita v. State of NCT of Delhi, 2020 SCC OnLine Del 1902.
Balwant Singh and Another v. State of Punjab (1995) 3 SCC 214.
Directorate of Enforcement v. Shabir Ahmad Shah @ Shabir Shah & Ors.
in SC 357/2017, Order dated 07.06.2024.
Javed Gulam Nabi Shaikh v. State of Maharashtra and Anr., (2024) 9 SCC
813.
Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar
Pradesh, 2023 INSC 534.
Shoma Kanti Sen v. The State of Maharashtra & Anr., 2024 INSC 269.
Chandeep Singh @ Gabbar Singh v. National Investigation Agency, 2023
SCC OnLine P&H 6332 .
Baseerat-ul-Ain v. National Investigation Agency, 2024 SCC OnLine J &K
36.SUBMISSIONS ON BEHALF OF THE RESPONDENT
38. The learned Senior Counsel, Mr. Sidharth Luthra, appearing on
behalf of the NIA, while vehemently seeking dismissal of the Appeal,
contended that the Charges against the Appellant have already been
framed by the learned ASJ and, therefore, the embargo under Section
43D(5) of the UA(P) Act is applicable, and the Appellant has to meet
with a higher threshold for securing a grant of Bail. He submitted that
although the Appellant has challenged the Order on Charge before this
Court in a Criminal Appeal bearing no. 27/2023, nonetheless, there is
ample material against him to sustain the Charges framed vide Order
dated 16.03.2022.
39. The learned Senior Counsel submitted that as per the dictum of
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 15 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
the Supreme Court in NIA v. Zahoor Ahmed Shah Watali, (2019) 5
SCC 1, the degree of satisfaction to be recorded to decide the issue of
grant or denial of Bail, is lesser than the degree of satisfaction required
to be recorded for considering a discharge or framing of Charges in
relation to offences under the UA(P) Act. In the present case, the
Charges having been framed, the prima facie accusations already exist
to deny Bail to the Appellant.
40. The learned Senior Counsel submitted that the investigating
agency has unearthed and collated substantial incriminating evidence
against the Appellant and found that he had played an active part in a
deep-rooted Conspiracy related to secessionist and terrorist activities
in the J&K. Furthermore, it was submitted that the Appellant was the
head/Chairman of the JKDFP, an organization which was declared an
Unlawful Association by the UA(P) Act Tribunal vide Order dated
03.04.2024.
41. Adverting to the statement of John (AW-62/AD-125), the
learned Senior Counsel submitted that it reveals that the Appellant,
along with the co-accused persons; Bitta Karate, Zahoor Ahmed Shah
Watali and Yasin Malik, (who pled guilty before the learned Trial
Court), was present at the meetings of the APHC and had also
participated in Jalsa-Juloos in different districts of the J&K, thereby,
instigating the general public to commit acts of violence aimed at the
secession of the J&K from the Union of India. He contended that, in
pursuance of this, they had also organized „hartal‟ and encouraged
stone pelting, all of which posed a threat to the unity, integrity and
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 16 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
security of India. Moreover, it was submitted that these protests were
peaceful only on paper, while in their speeches, exhortations were
made to „break India‟, wage war, and promote „freedom‟ through
funds obtained via LoC Trade and by facilitating students‟ admission
to medical Colleges in Pakistan. These funds, he argued, were used to
burn Schools, incite stone pelting, and perpetuate other anti-national
activities.
42. The learned Senior Counsel further submitted that the
Appellant‟s connection with the other accused persons is also evident
through the CDR analysis, which establishes his key role in the
Conspiracy. Specifically, he had received several calls on his mobile
number from Mohd. Shafi Shair, who used a Pakistani number, during
the period from 22.01.2017 to 26.01.2017.
43. Mr. Luthra brought to our attention the emails recovered at the
instance of the Appellant (AD-120/43) and submitted that Shair Shafi
had also sent emails to the Appellant. One of these emails contained
the details of funds in USD and INR distributed to various individuals,
which is corroborated by the statement of Protected Witness John. It
was submitted that the Appellant was also regularly updated about the
Indian Army, and photographs of the terrorist encounters in the J&K
were attached to those emails.
44. The statement of Alpha (D-279), he submitted, corroborates the
statement of John and reveals the true objective behind the protest
calendars and the involvement of the Pakistan Embassy in New Delhi.
The Appellant is also stated to have been present at the meeting where
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 17 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
the Protest Calendar was decided. Furthermore, funds were also
generated through LoC Trade, and investigations revealed that the
relatives of some of the LoC Traders were closely associated with the
banned terrorist organization Hizb-ul-Mujahideen. It was submitted
that the Pakistani Government had sent the Appellant Rs. 1.10 Crores
to be distributed among the Stone Pelters. The Protected Witness
John also specifically stated that the Appellant was closely associated
with the Stone Pelters, one of them being Danish, who is stated by the
Protected Witness AW-62 to be a regular visitor to the Appellant‟s
House and whose phone number is also saved in the Mobile Phone of
the Appellant. Upon Danish‟s arrest, the Appellant also provided him
with a lawyer to secure his release on Bail.
45. The learned Senior Counsel submitted that this witness (AW-
62) also states that following the killing of the terrorist, namely
Burhan Wani, there was unrest in the Kashmir Valley. On the
directions of the Appellant, a large sum of money, around Rs. 35
lakhs, was collected, out of which Rs. 14-15 Lakhs were disbursed
amongst the Stone Pelters, and the remaining was kept by the
Appellant for himself.
46. It was contended that Document D-132(a)/23, is a loose sheet
seized from the house of the Accountant of the co-accused Zahoor
Ahmed Shah Watali, which reflects the exchange of funds between the
several Hurriyat leaders and the Pakistan High Commission, New
Delhi, it also shows transactions with the Appellant, and the said sheet
has been signed by co-accused Zahoor Ahmed Shah Watali, whose
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 18 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
Regular Bail was dismissed by the Supreme Court in the case titled as
NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1. He further
contended that said decision also discusses this document against the
accused no. 10, which also implicates the Appellant herein.
47. The learned Senior Counsel also submitted that the
investigations revealed that Hurriyat leaders had recommended
students for admission to Universities in Pakistan and charged a
commission, which were ultimately used for secessionist and terrorist
activities. As per the statement of AW-79, the Appellant had also
recommended students for medical seats in the Universities in
Pakistan to gather funds thereby, further aiding such activities.
48. The learned Senior Counsel, drawing our attention to the
statement of AW-81, contended that it reveals that the Appellant was
receiving funds from Pakistan which is corroborated by the statement
of AW-69, who stated that the Appellant received funds from
Pakistani establishments. In this regard, our attention was also drawn
to the statements of AW-67 and AW-79. Furthermore, the
inflammatory speeches made by the Appellant and as can be seen in
the videos recovered by the Investigation Agency unearth the true
nature and intention of the Appellant to support the militants and
incite hatred amongst the people of Kashmir against India and further
to promote activities related to secession. He submitted that the
speeches do not depict a case of general resentment but rather these
speeches threaten the sovereignty and integrity of India as can be seen
from the transcripts of the videos.
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 19 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
49. Mr. Luthra submitted that the decisions relied upon on behalf of
the Appellant do not support the Appellant‟s case as they are
distinguishable on facts. He submitted that in the case of Gurwinder
Singh (supra), the Supreme Court has categorically distinguished the
application of K.A. Najeeb (supra). Hence, the said decision does not
come to the aid of the Appellant. Moreover, the decisions in K.A.
Najeeb and Vernon are not applicable to the facts of the present case,
as the delay is attributable to the Appellant and co-accused persons
herein and secondly, the Charges stood framed against the Appellant
vide Order dated 16.03.2022. Additionally, the material in Vernon
(supra) was hearsay in nature, unlike the evidence in the present case.
50. The learned Senior Counsel submitted that in light of the above
and other incriminating evidence, there is sufficient material on record
to make out a prima facie case against the Appellant and his
involvement in various violent protests and anti-national activities and
as Charged against him.
51. Mr. Luthra submitted that the Trial is already underway, and no
delay can be attributed to the Prosecution. This is also evident from
the affidavit dated 16.11.2024 filed on behalf of the NIA, which
outlines in a tabular form, the dates and reasons for adjournments.
Therefore, in light of the overwhelming evidence against the
Appellant and the facts and circumstances of the present case, the
Appellant is not entitled to be enlarged on Regular Bail.
52. In rebuttal, the learned Senior Counsel for the Appellant, while
disputing the submissions, reiterated his claim to seek Regular Bail for
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 20 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
the Appellant, however, he urged that in the event this Court is not
inclined to grant Bail to the Appellant, the Court may release the
Appellant on House Arrest to enable him to be with his family
members, with only a few relatives allowed as visitors. He submitted
that the Appellant would give an undertaking to that effect and would
refrain from making any public speeches.
53. While strenuously opposing this prayer on behalf of the
Appellant, the learned Senior Counsel for the Respondent contended
that since the trial is underway and the Protected Witnesses are yet to
be examined, given the sensitive nature and the gravity of the offences
levelled against the Appellant, it would not be, at all, appropriate to
even place him under House Arrest with his family.
ANALYSIS AND FINDINGS
54. We have considered the arguments put forth by the learned
Senior Counsels for the parties and have carefully perused the record
as well as the statements of the sProtected Witnesses.
55. As is evident from the Prosecution‟s case, it primarily rests on
the key aspect of a Conspiracy to secede J&K from the Union of
India. To put this secessionist goal into action, the Appellant, along
with the other co-accused persons, in furtherance of the said
Conspiracy, threatened the Unity, Integrity, and Security of India.
Thus, the necessity of an agreement, and the role of individual action
in furtherance of a Conspiracy are fundamental in understanding the
application of criminal Conspiracy in a particular case.
56. At this stage, it would be befitting to extract the observations of
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 21 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
the Supreme Court in Kehar Singh and Others vs State (Delhi
Administration) (1988) 3 SCC 609, the relevant portions thereof are
as under:
“275. Generally, a Conspiracy is hatched in
secrecy and it may be difficult to adduce
direct evidence of the same. The Prosecution
will often rely on evidence of acts of various
parties to infer that they were done in
reference to their common intention. The
Prosecution will also more often rely upon
circumstantial evidence. The Conspiracy can
be undoubtedly proved by such evidence direct
or circumstantial. But the court must enquire
whether the two persons are independently
pursuing the same end or they have come
together in the pursuit of the unlawful object.
The former does not render them conspirators,
but the latter does. It is, however, essential
that the offence of Conspiracy requires some
kind of physical manifestation of agreement.
The express agreement, however, need not be
proved. Nor actual meeting of two persons is
necessary. Nor it is necessary to prove the
actual words of communication. The
evidence as to transmission of thoughts
sharing the unlawful design may be
sufficient. Gerald Orchard of University of
Canterbury, New Zealand explains the limited
nature of this proposition: [1974 Criminal
Law Review 297, 299]
“Although it is not in doubt that the
offence requires some physical
manifestation of agreement, it is
important to note the limited nature of
this proposition. The law does not
require that the act of agreement take
any particular form and the fact ofSignature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 22 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
agreement may be communicated by
words or conduct. Thus, it has been said
that it is unnecessary to prove that the
parties „actually came together and
agreed in terms‟ to pursue the unlawful
object; there need never have been an
express verbal agreement, it being
sufficient that there was „a tacit
understanding between conspirators as
to what should be done‟.”
(emphasis supplied)
57. Having noted the above, in the present case, the Prosecution has
alleged that the Appellant is one of the key conspirators, having
attended various meetings in pursuance of the Conspiracy, secured
funds through hawala and other illegal channels to propagate violence
in J&K, delivered inflammatory speeches, etc. Accordingly, we may
note the broad allegations levelled by the Prosecution against the
Appellant, as well as the evidence relied upon in support, which are
enumerated below:
A. Instigating violence through his Inflammatory speeches:
The Prosecution has relied upon several videos, which
allegedly depict the inciting of hatred and making of
inflammatory speeches by the Appellant to provoke the
people in J&K against India and to promote activities related
to secession such as stone pelting, burning of Schools, and
mass violence towards the Security Forces. It is further
alleged that the Appellant raised slogans to garner public
support for terrorist organizations. Document AD-114 and
AD-116 have been cited in support.
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 23 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
B. Receipt of funds through hawala transactions and from
LoC Trade: The Appellant has been alleged to be receiving
hawala money from one of the financial conduits, namely,
co-accused Zahoor Ahmed Shah Watali. The document
relied upon is D132(a)/23. Further, it is alleged that the
Appellant is also involved in raising funds through illegal
LoC Trade. Statements of Protected Witnesses AW-81 and
AW-69 have been cited in support. It emanates from the
statements that after the killing of a terrorist namely, Burhan
Wani, on the directions of the Appellant, around Rs. 35
lakhs were collected, out of which, Rs. 14-15 lakhs were
distributed among Stone Pelters for bringing unrest in the
Kashmir Valley
C. Financially aiding the Stone Pelters: The Appellant has
been alleged to have received Rs. 1.10 crores from the
Pakistani Government and to have disbursed a portion of this
amount to Stone Pelters who were injured in such action.
D. Attended Conspiratorial meetings: The Appellant, along
with other co-accused persons, has been alleged to have
attended meetings of the Hurriyat Conference at the
residence of SAS Geelani to decide the protest calendar, as
per which the violent protests were undertaken in the J&K.
Several Protected Witnesses have been cited in support of
this allegation such as John (AW-62), Alpha, (D-279), etc.
E. Earning commissions through securing admission ofSignature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 24 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
students in Pakistani Colleges: It has been alleged that the
Appellant and other co-accused persons would recommend
students for securing seats in Medical Universities in
Pakistan and earn commission therefrom. This commission
was utilized in funding the terrorist and secessionist
activities in the J&K. Protected Witnesses AW-79, AW-81
and AW-69 have been cited by the Prosecution in support.
F. Chairman of JKDFP, declared unlawful association by
UA(P) Tribunal: The Appellant is the Chairman of the
JKDFP Organization, which was propagating unlawful
activities and has been declared an Unlawful Association by
the UA(P) Tribunal vide Order dated 03.04.2024.
G. Eulogizing the terrorists as martyrs: The Appellant has
been alleged to eulogize the terrorists as martyrs, various
videos recovered by the Prosecution and the emails
recovered at the instance of the Appellant, wherein
attachments pertain to photographs of the terrorists who
were killed in the J&K and updates on the Indian Army in
the Kashmir Valley, to show his involvement in the unlawful
agenda of secession.
58. From the above allegations, it can be inferred that the
Prosecution has relied upon several videos, incriminating documents,
and the statement of numerous witnesses, including Protected
Witnesses, to implicate the Appellant for instigating the general public
to perpetrate violence in the J&K, thereby waging war against the
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 25 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
Union of India in furtherance of the alleged Conspiracy.
59. The learned Senior Counsel for the Appellant has claimed that
the alleged videos, relied upon by the Prosecution, wherein the
Appellant is alleged to have delivered inflammatory speeches, are
approximately 25 years old and have already been used as a piece of
evidence in other FIRs registered against the Appellant and, therefore,
these videos could not have been used in the present case too, to
implicate the Appellant. Moreso, it is submitted that the videos are
inadmissible in the absence of a certification under Section 65B of the
IE Act.
60. To the contrary, it is the Prosecution‟s version that even though
the Appellant has been in a long period of incarceration in different
FIRs, his involvement in the present case specifically pertains to the
hatching of the Conspiracy and, apart from the said videos, substantial
incriminating evidence has been collected against him. The material
evidence collected by the investigation agency had unearthed a deep-
rooted Conspiracy, hatched in secrecy, in which the Appellant is
alleged to be a key part of, and being the chairman of the JKDFP
organization, he had links with various terrorists and Pak-ISI. With
regard to the inadmissibility of the videos in evidence, the learned
Senior Counsel for the Respondent contended that this is not a stage to
consider the admissibility of the evidence collected by the
Prosecution, however, if required, the Certificate would be produced
when the said electronic record is sought to be proved before the
learned Trial Court in evidence during the trial. We, therefore, tend to
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 26 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
agree with the submissions of the learned senior counsel for the
Respondent.
61. Another plea raised on behalf of the Appellant pertains to the
rallies, alleged to be inflammatory, being held as a part of freedom of
speech and expression and the right to self-determination and
therefore, it cannot be made a basis to bring a Charge under the UA(P)
Act against the Appellant.
62. No doubt, the Constitution of India provides for a right to
freedom of speech and expression, however, the same also places
reasonable restrictions such as public order, decency, morality or
incitement to an offence, etc. This right cannot be misused under the
garb of carrying out rallies wherein, a person uses inflammatory
speeches or instigates the public to commit unlawful activities,
detrimental to the interest and integrity of the country.
63. It was also contended by the learned Senior Counsel for the
Appellant that there was no incitement in the speeches, and the
Prosecution is falsely accusing the Appellant of instigating violence.
Therefore, it is argued, that the Charge under the UA(P) Act, much
less the offence of Sedition, cannot be sustained. Reliance was placed
on the decision in Balwant Singh (supra).
64. To appreciate this plea, we may note that in the said case, the
Appellant therein had raised slogans in public, however, these slogans
did not evoke any provocative response that created any disorder or
any law-and-order situation. In the present case, however, the
Prosecution has alleged that the speeches delivered by the Appellant
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 27 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
were inflammatory and provoked several individuals to indulge in
stone pelting and raising anti-national slogans. Moreover, whether
these speeches had any far-reaching effects on the public or not, is a
matter to be considered by the learned Trial Court at an appropriate
stage of the proceedings.
65. To further establish the conspiratorial role of the Appellant, the
learned Senior Counsel for the Respondent pointed towards the
statements of various Protected Witnesses and documentary evidence,
upon analysis of which, it prima facie culminates that the Appellant
had received several calls from Mohd. Shafi Shair from his Pakistani
number during the period from 22.01.2017 to 26.01.2017.
Furthermore, Mohd. Shafi Shair had sent emails, specifically
document AD-120/43, which were recovered from the Appellant. One
of these emails contained details of funds, in both the USD and the
INR, distributed to various individuals.
66. We may note that the position of law is well settled that the
Court is not required to adjudicate upon the admissibility or credibility
of the evidence at the stage of deciding Bail under the UA(P) Act, and
the evidence on record is to be taken on as it is basis. Needless to say,
the Charges have already been framed by the learned Trial Court,
though, challenged by the Appellant in an Appeal before this Court.
Infirmities therein, if any, would be considered in the trial. Even
otherwise, the questions pertaining to production of Certificate under
Section 65B of IE Act, the admissibility and relevancy of the
statements of the co-accused Wani or the Appellant made in the
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 28 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
predicate FIR or the PMLA case, the Appellant not being named by
witness Ghulam Mohammad Bhatt in his statement, and the Appellant
being in Jail when the accused Wani in the PMLA case is alleged to
have given money to him, will all be a matter of trial.
67. One of the documents relied upon by the Prosecution, which it
contended is of significance importance, is D-132(a)/23, reflects the
exchange of funds between several Hurriyat leaders, the Pakistan High
Commission in Delhi, and the Appellant. This document also reveals
transactions of huge sums of money between the Appellant and the co-
accused Zahoor Ahmed Shah Watali (A-10), whose Bail was also
cancelled by the Supreme Court. This loose sheet also bears the
signature of A-10 and has been confirmed by the Forensic report dated
03.11.2017 (D-154).
68. Relevantly, the Supreme Court in Zahoor Ahmad Shah Watali
(supra), while rejecting the Bail application to co-accused no. 10
Zahoor Ahmad Shah Watali, and after evaluating the evidence as well
as the redacted statements of the Protected Witnesses, and the material
filed along with the Chargesheet, found that the NIA had established a
linkage between the Accused no. 10 and the other co-accused persons.
The relevant extract from the Judgment is reproduced herein below:-
“34. After having analysed the documents and
the Statements forming part of the charge-sheet
as well as the redacted Statements now taken on
record, we disagree with the conclusion
recorded by the High Court. In our opinion,
taking into account the totality of the report
made under Section 173 of the Code and the
accompanying documents and the
evidence/material already presented to theSignature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 29 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
Court, including the redacted Statements of the
Protected Witnesses recorded under Section 164
of the Code, there are reasonable grounds to
believe that the accusations made against the
Respondent are prima facie true. Be it noted,
further investigation is in progress.
35. We may observe that since the prayer for
Bail is to be rejected, it may not be appropriate
for us to dilate on matters which may eventually
prejudice the Respondent (Accused 10) in any
manner in the course of the trial. Suffice it to
observe that the material produced by the
investigating agency thus far (pending further
investigation) shows the linkage of the
Respondent (Accused 10) with A-3, A-4, A-5
and A-6 and, likewise, linkages between the
Respondent (Accused 10) and A-3 to A-12, as
revealed from the CDR analysis…….”
(emphasis supplied)
69. Suffice it is to say, the Prosecution, through the evidence
collected by it, has been able to prima facie establish the involvement
of the Appellant with Accused no. 10 as well as other co-accused
persons in the Conspiracy. Needless to state, in cases of Conspiracy, it
is the evidence that gradually unfolds and unravels the entire scheme.
The Prosecution has also adduced the CDR analysis, which indicates
the connectivity of the Appellant with Mohd. Shafi Shair.
70. The learned Senior Counsel for the Appellant had drawn our
attention to the Affidavit dated 14.05.2025 filed on behalf of the
Appellant, which outlines the details and status of the 24 FIRs
registered against the Appellant, and submitted that it is evident
therefrom that most of them are FIRs older than 10-15 years and the
Appellant has been in custody for an unreasonably longer period of
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 30 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
time. He further submitted that the trials in most of these, if not all, are
still in a nascent stage, and the Charges have also not been framed
against him. He further submitted that in any case, the Appellant has
not been convicted in any of these cases till date.
71. On the other hand, it was contended on behalf of the NIA, that
in almost all of these FIRs, the Chargesheet have been filed and the
evidence of the witnesses is being recorded. Moreover, apart from the
present NIA case before the learned ASJ, the said 24 FIRs are not a
subject matter of the present Criminal Appeal and, therefore, it has
little to no bearing on the adjudication of the present proceedings.
72. It is not denied that the Appellant is in custody in connection
with these FIRs. During the course of the proceedings, queries were
put to the learned Senior Counsels for the parties on whether the
Appellant has applied for Bail in these FIRs, and if so, the result
thereof. The counsels, however, could not give a clear and satisfactory
response as to whether any Bail applications had been filed on behalf
of the Appellant in these 24 FIRs. Nonetheless, the fact remains that
the Appellant continues to remain in custody. What is evident is that
the Appellant has multiple FIRs registered against him involving
grave offences, and what remains a mystery is, if a Bail application
had been filed, the result thereof, and if not, then why?
73. It is to be noted that the Appellant was arrested in a number of
FIRs, the details whereof have been provided by the learned Senior
Counsel for the Appellant in a tabular format, which is reproduced
below:
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 31 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
S.N DISTRICT FIR NO. WITH SECTION OF PS
O LAW
1. Bandipora 17/2014 U/S 132 RP Act, 13 UAP Hajin
Act, 147,148 RPC
2. 52/2015 U/S 13 UAP Act Sumbal
3. Ganderbal 77/2014 U/S 153,153-A, 121 RPC Kangan
4. Srinagar 68/2008 U/S 147,332,336,427 Nigeen
RPC
5. 11/2011 U/S 147,332,296 RPC Nigeen
6. 61/2017 U/S 132-B RPC Parimpora
7. 155/1995 U/S Sadder
188,148,353,121/RPC
8. 192/1996 U/S Shergari
307,341,148,336,332 RPC, 7/27
A. Act. 13 ULAP Act.
9. 73/1999 U/S Rajbagh
188,332,427,147,336,149/RPC
10. 108/2004 U/S 353, 336, 427 RPC Batamaloo
11. 108/2009 U/S 153 RPC, 13 UALP Batamaloo
Act
12. 59/10 U//S 153,121 RPC Maisuma
13. 10/2014 U/S 13 ULAP ACT, 109 Kothibagh
RPC
14. 26/2016 120-B,121-A,153-A,506 Sadder
RPC, 13, 18, ULAP Act
15. 74/2010 U/S 10 CLA, 13 ULAP Shaheed
Act, 153-B RPC Gunj
16. Sopore 205/2008 U/S Sopore
147,148,149,188,332,336, 121-
B,427, 153-A RPC
17. Budgam 132/2011 U/S 147,336 RPC Chari-
Sharief
18. 114/2014 U/S 13 ULAP Act Budgam
19. 39/2015 U/S 147,148,336,341- Magam
RPC 13 UAP Act
20. Handwara 44/2015 U/S 147,121-A RPC 13 Kralgund
ULAPAct
21. Pulwama 16/2010 U/S 153-A; RPC Rajpora
22. 142/2001 U/S 147,148,153-A,336, Pulwama
353 RPC
23. 288/2015 U/S Pulwama
148,149,336,447,332,307 RPC, 13
ULAP Act
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 32 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
24. 86/2014 U/S U/S 505 (2) (1) RPC, Pulwama
132 R-Act
74. What emerges from the table above is that the Appellant is
involved in a number of criminal cases of a similar nature, all of
which relate to the conspiring for the secession of the J&K from the
Union Territory of India. These cases reflect extensive preparations
and coordinated action undertaken in furtherance of that objective.
75. It is also pertinent to note that the JKDFP, of which the
Appellant is the Chairman, has been declared as an Unlawful
Association by the UA(P) Tribunal. The learned Senior Counsel for
the Appellant had submitted that, at the time when the Appellant has
been alleged to have indulged in various activities being the
Chairperson of his Organization, that is, JKDFP was not declared an
Unlawful Organization. Therefore, it was contended that the Appellant
was not involved in any illegal activity. We do not find any merit in
the said plea raised on behalf of the Appellant. In case the Appellant
was involved in unlawful activities, the same cannot be termed as
lawful merely because the organization he was heading was at the
time, not declared an unlawful association.
76. Furthermore, while it is submitted that the Appellant by virtue
of being the Chairman of the organization, he had met several
prominent political leaders, perhaps in pursuit of a peaceful resolution
for Kashmir, this fact, in itself, does not assist the Appellant‟s case.
Additionally, the fact that the videos relied upon by the Prosecution
are 25 years old does not absolve the Appellant of the alleged offences
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 33 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
committed at the relevant time. Needless to say, these videos and the
alleged acts depicted therein came to light only when the investigation
in the present case was initiated.
77. The learned Senior Counsel for the Appellant had also
contended that the testimonies of the Protected Witnesses are vague
and ambiguous. However, this is again a matter to be adjudicated
during the trial, where the credibility and reliability of such evidence
will be examined.
78. As far as the plea of delay in the trial is concerned, though, the
Appellant has been in custody for five years, the Charges have already
been framed and the trial is underway. There is no delay on the part of
the Prosecution for not examining its witnesses, as is evident from the
affidavit dated 16.11.2024 filed by the NIA. In other connected cases,
the Prosecution has fairly conceded to prune the list of its witnesses.
In the present case as well, it is expected that the Prosecution will drop
the witnesses who are not relevant so that the trial may proceed at a
faster pace.
79. It is a settled position of law that for any precedent to be relied
upon, it must be examined in the context of the totality of its facts and
circumstances. Even a minuscule difference in the facts can render a
decision inapplicable when juxtaposed with the factual matrix of the
case being dealt with at hand.
80. The consideration that arose in K.A. Najeeb (supra) before the
Supreme Court, amongst other factors, was that the co-accused therein
was held guilty by the learned Trial Court and was accordingly,
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 34 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
sentenced to eight years of imprisonment. The Appellant therein had
been in custody for nearly five years and thus, he was enlarged on
Bail. One of the co-accused in the present case, that is, Yasin Malik,
has been sentenced to life imprisonment by the learned Trial Court
upon his pleading guilty.
81. The decisions in Ashim (supra) and Vernon (supra) are also
distinguishable as in the former case, the Charges had been framed
after seven years from the date of filing of the Chargesheet, and the
examination of PW-1 was itself underway before the learned Trial
Court. In the latter case, the Charges had not been framed, and the
surface analysis of the probative value of the material therein
pertained to hearsay evidence, as it was recovered from the possession
of the co-accused and not from the Appellant therein. In Shoma Kanti
Sen (supra), the Charges had not been framed and the allegations
against the Appellant were found to be prima facie true. Other
decisions relied upon by the learned Senior Counsel for the Appellant
also do not come to his aid and are not further discussed for the sake
of brevity, particularly in view of the fact that the Appellant is
involved in 24 FIRs of a similar nature.
82. In view of the overwhelming evidence, it is premature to
evaluate the veracity of the material available on record at this stage.
However, it cannot be brushed aside or said to fall short of proof in
any manner, such assessment shall be considered by the learned Trial
Court at an appropriate stage of the trial.
83. Also, the Appellant‟s involvement in a number of cases of a
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 35 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
similar nature, thus, the possibility cannot be ruled out that being a
Chairman of the unlawful organization JKDPF, he would not indulge
in similar unlawful activities and may attempt to tamper with evidence
as well as influence witnesses who are yet to be examined.
84. It is well-settled law that at the stage of Bail the court is
concerned with the existence of the material against the accused and
not as to whether those materials are credible or not. Therefore,
considering the entire gamut of facts and circumstances, the present
case is not a fit case to extend the benefit of the grant of Bail to the
Appellant. Consequently, there is no question of entertaining the
alternative prayer made by the Appellant seeking House Arrest, in
view of the serious allegations against the Appellant as well as the
sensitivity and gravity of the issues involved.
85. Needless to state, the Charges have been framed by the learned
Trial Court, and for the purpose of adjudicating the plea of Regular
Bail, there are reasonable grounds to believe that the accusations
against the Appellant appear prima facie to be true. The Appellant has
not been able to discharge the burden upon him in order to secure
Bail.
86. Accordingly, in view of the foregoing discussion, the present
Appeal is dismissed.
87. It is made clear that the observations made hereinabove shall
not tantamount to be an expression on the merits of the Appellant‟s
case pending before the learned Trial Court or to be read as an
expression of opinion on the merits of the pending Appeal on Charge
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 36 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
before this Court, These observations are confined to the consideration
of the prayer for Bail alone.
CRL.M.A. 875/2025
88. This is an application under Section 528 of the Bhartiya Nagrik
Suraksha Sanhita, 2023 (BNSS) filed on behalf of the Appellant,
seeking a copy of his Medical Record.
89. Vide Order dated 27.01.2025, The medical record of the
Appellant from the Office of the Senior Medical Officer, Central Jail,
Tihar, New Delhi, was placed on record, and a copy of the same was
furnished to the learned Senior Counsel for the Appellant.
90. In view of the above, the application stands dismissed as being
infructuous.
SHALINDER KAUR, J.
NAVIN CHAWLA, J.
JUNE 12, 2025
KM/s
Signature Not Verified
Digitally Signed By:SHALINI
CRL.A. 600/2023 Page 37 of 37
UNIYAL BHATT
Signing Date:12.06.2025
15:05:20
[ad_1]
Source link