Delhi High Court
Syed Ahmad Shakeel vs National Investigation Agency on 8 August, 2025
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 11.07.2025
Pronounced on: 08.08.2025
+ CRL.A. 262/2021
SYED AHMAD SHAKEEL .....Appellant
Through: Mr. Jawahar Raja and Ms. Aditi
Saraswat, Advs.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. Vikramjit Banerjee, ASG
with Mr. Akshai Malik, SPP
and Mr. Khawar Saleem, Adv.
with Mr. Pankaj Aggarwal,
DSP, NIA.
+ CRL.A. 1023/2024
SHAHID YUSUF .....Appellant
Through: Mr. Jawahar Raja and Ms. Aditi
Saraswat, Advs.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. Vikramjit Banerjee, ASG
with Mr. Akshai Malik, SPP
and Mr. Khawar Saleem, Adv.
with Mr. Pankaj Aggarwal,
DSP, NIA.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
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JUDGMENT
SHALINDER KAUR, J.
1. The present criminal appeals arise out of NIA Case No. RC-
06/2011/NIA/DLI, which originated from FIR No. 04/2011 dated
16.01.2011, registered at the Special Cell, Delhi Police, Lodhi Colony,
under Section 120B of the Indian Penal Code, 1806 (‘IPC‘) and
Section 17 of the Unlawful Activities (Prevention) Act, 1967
(‘UAPA’). These appeals involve similar factual and legal issues and
are, thus being adjudicated collectively through the present common
judgment.
2. This case triggered from an investigation when the Special Cell
of the Delhi Police received information from a source indicating that
funds originating from Pakistan were being routed to Jammu &
Kashmir through hawala channels operating via Delhi, for the purpose
of funding terrorist and secessionist activities in Jammu and Kashmir.
On basis of the same, FIR No. 04/2011 was registered.
3. Acting upon the said information, certain telephone numbers
were placed under surveillance. Upon analysis of the intercepted
communications and the inputs received from sources, it emerged that
there was a conspiracy to raise and transfer funds to the State of
Jammu and Kashmir through hawala transactions for the purpose of
funding terrorist activities.
4. The investigation revealed that one Maqbool Pandit (A-5), a
member of the proscribed terrorist organisation Hizb-ul-Mujahideen,
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based in Pakistan, was involved in transmitting substantial amounts of
money to secessionist elements and terrorists operating in Jammu &
Kashmir.
5. During the course of the investigation, a joint team comprising
officials from the Special Cell of the Delhi Police and the Jammu &
Kashmir Police laid a trap at Bemina Bypass Chowk, Srinagar, on
22.01.2011, which resulted in the apprehension of four accused
persons, namely, i) Ghulam Mohd. Bhat @ Abdul Rehman (A-1), ii)
Mohd. Sidiq Ganai @ Lala (A-2), iii) Ghulam Jeelani Liloo @ Salim
@ Ghulam Jeelani Sofi (A-3), and iv) Farooq Ahmed Dagga @ Rahi
(A-4). From the possession of the aforementioned accused persons, a
total sum of Rs. 21,20,000/-, mobile phone sets, SIM cards, and other
incriminating material were recovered. The investigation unearthed a
deeper criminal conspiracy involving various individuals engaged in
the collection and disbursement of funds to separatist leaders,
members of Hizb-ul-Mujahideen, and other terrorist groups. These
funds, received from Pakistan through hawala channels, were meant
for the promotion of terrorist activities in Jammu & Kashmir.
Consequently, Sections 18 and 20 of the UAPA were also added to the
aforementioned FIR No. 04/2011.
6. Thereafter, the Ministry of Home Affairs (MHA), Government
of India, vide letter No. 1-11011/23/2011-IS-IV dated 15.04.2011,
transferred the investigation to the National Investigation Agency
(‘NIA’). Accordingly, the case was re-registered as RC-
06/2011/NIA/DLI (Delhi Hawala Channel Funding Terror in Jammu
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& Kashmir) on 25.04.2011 under Section 120B of the IPC and
Sections 17, 18, and 20 of the UAPA.
7. Upon conclusion of the investigation, the NIA filed a Charge-
Sheet on 20.07.2011 against four accused persons, namely Ghulam
Mohammad Bhat @ Abdul Rehman (A-1), Mohammad Sidiq Ganai
@ Lala (A-2), Ghulam Jeelani Liloo @ Salim @ Ghulam Jeelani Sofi
(A3), and Farooq Ahmad Dagga @ Rahi (A-4), for offences under
Sections 13, 17, 18, and 20 of the UAPA.
8. A first supplementary Charge-Sheet dated 22.12.2011 was filed
against the accused Mohd. Maqbool Pandit (A-5) and Aijaz Ahmad
Bhat @ Aijaz Maqbool Bhat (A-6), terrorists of Hizb-ul-Mujahideen,
who were absconding and have been declared proclaimed offenders.
9. On 03.03.2012, Charges were framed against the co-accused A-
1 to A-4 by the learned Special Court, NIA, Patiala House Courts,
New Delhi.
10. Subsequently, on 28.05.2018, the co-accused A-2, A-3, and A-4
pleaded guilty to offences under Sections 13, 17, 18, and 20 of the
UAPA, and vide Order dated 04.06.2018, were sentenced to the period
already undergone by them in custody, which was 7 years and 4
months, along with a fine of Rs. 2000/-.
11. However, the investigation continued and further revealed that,
as part of a larger criminal conspiracy, to raise and send funds to the
State of Jammu & Kashmir for carrying out terrorist activities, the
appellant Shahid Yousuf (A-7) and the appellant Syed Ahmad Shakeel
(A-8), both sons of Mohammad Yousuf Shah @ Syed Salahuddin, the
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self-styled supreme commander of Hizb-ul-Mujahideen, a proscribed
terrorist organization, and resident of House No. 34, Zumzum Colony,
Ram Bagh, Police Station Sadar Gir, Jammu & Kashmir, willfully
received and collected money from Aijaz Ahmad Bhat @ Aijaz
Maqbool Bhat (A-6) on different occasions. During the course of
investigations, the disclosure statements of the appellants, as well as
evidence of their receipt of terror funds from Aijaz Ahmad Bhat @
Aijaz Maqbool Bhat (A-6), were recorded.
12. The prosecution maintains that the evidence gathered during the
course of investigation establishes that both the accused, A-5 and A-6,
are members of the proscribed terrorist organisation Hizb-ul-
Mujahideen and were actively involved in a larger conspiracy to raise
funds for the said terrorist outfit. Accordingly, the accused Shahid
Yousuf (A-7) was arrested on 24.10.2017, and the appellant, Syed
Ahmad Shakeel (A-8) was arrested on 30.08.2018 in RC-
06/2011/NIA/DLI.
13. On the basis of the evidence collected during the investigation,
a second supplementary Charge Sheet dated 20.04.2018 was filed
against the appellant- Shahid Yusuf (A-7), under Sections 13, 17, 18,
20, 21, 38, and 40 of the UAPA and Section 120 B of the IPC.
14. A third supplementary Charge Sheet was filed on 20.11.2018
under Sections 17, 18, and 38 of the UAPA and Section 120B of the
IPC against the appellant- Syed Ahmad Shakeel (A-8).
15. Vide Order dated 09.02.2021, the trial of A-7 and A-8 was
bifurcated, leading to the registration of a separate case as RC-
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02/2021/NIA/DLI, titled State (NIA) v. Shahid Yousuf & Syed
Ahmad Shakeel.
16. Both the appellants filed bail applications seeking regular bail.
The appellant-Syed Ahmad Shakeel (A-8) filed his bail application on
20.05.2021, which was dismissed by the learned Special Court, NIA,
vide Order dated 09.07.2021. The appellant-Shahid Yousuf (A-7) filed
a second bail application before the learned Special Judge on
16.01.2024, which was dismissed vide Order dated 31.08.2024.
17. Aggrieved by the non-grant of Regular Bail, the appellants filed
the present criminal appeals. They have also preferred separate
appeals against the framing of Charges, bearing Criminal Appeal Nos.
201/2021 and 199/2021, which are stated to be pending adjudication.
18. To appreciate the arguments advanced on behalf of the parties,
it is necessary to examine the role of each of the appellants as
described by the prosecution.
CRL. A 262/2021 (SYED AHMAD SHAKEEL- A-8)
19. The prosecution alleges that between 2009 and 2010, the
appellant, Syed Ahmad Shakeel (A-8), received terror funds
amounting to Rs. 2,74,444/- in six installments via Western Union
from the co-accused A-6, with whom he was in touch on telephone
and who was allegedly an active member of Hizb-ul-Mujahideen.
These funds were purportedly received using multiple identity
documents, including the appellant’s office ID and voter ID.
20. Additionally, suspicious cash deposits of Rs. 4.15 lakhs were
allegedly found in the appellant’s bank accounts held with the J&K
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Bank, SKIMS Branch, Soura. The appellant is stated to have failed to
account for these deposits during the investigation.
21. The NIA contends that the said funds originated at the behest of
his father, Mohammad Yousuf Shah @ Syed Salahuddin, the self-
styled Supreme Commander of Hizb-ul-Mujahideen, and were routed
via operatives based in Pakistan, Saudi Arabia, and other Islamic
countries.
22. In support of the above accusations, the prosecution has relied
upon documents D-144 to D-148 and D-154, comprising letters from
Western Union Money Transfer; D-192 to D-200, being documents
pertaining to the identity of the accused, his handwriting, and
unaccounted deposits in his bank account; and D-191 and D-192,
which are the confessional statements of the appellant relating to his
involvement in raising, receiving, and collecting funds from the
leadership and active cadres of Hizb-ul-Mujahideen, and his
association therewith.
SUBMISSIONS ON BEHALF OF THE APPELLANT (A-8)
23. Mr. Jawahar Raja, the learned counsel for the appellant,
submitted that the appellant- Syed Ahmad Shakeel has been in
custody since 30.08.2018. He has been falsely implicated and wrongly
incarcerated in the present case for nearly 6 years and 11 months
without the conclusion of the trial. He submitted that such prolonged
detention, without any likelihood of early conclusion of proceedings,
is inherently violative of the appellant’s fundamental right under
Article 21 of the Constitution of India.
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24. He submitted that the Charges under Sections 17, 18 and 38 of
the UAPA and Section 120B of the IPC were framed against the
appellant on 17.02.2020. Out of a total number of 201 witnesses cited
by the prosecution, 17 witnesses have been dropped, 32 witnesses
have been examined till date, and 152 witnesses are yet to be
examined. The learned counsel urged that in such a situation, where
the possibility of the trial concluding in the near future cannot be
visualized, the long period of incarceration suffered by the appellant
amounts to a denial of his right to a speedy trial. Thus, on this ground
alone, the appellant is entitled to regular bail.
25. Mr. Jawahar Raja further submitted that, apart from the above,
the prosecution has miserably failed to place on record sufficient
evidence to support the serious allegations against the appellant.
26. The learned counsel submitted that co-accused A-2 to A-4, who
had been charged with more serious offences, including Sections 13
and 20 of the UAPA, both of which have not been invoked against the
appellant. They pleaded guilty and were sentenced to approximately 7
years and 4 months of imprisonment. More so, A-1, upon conclusion
of the trial, was convicted under Sections 13 and 18 of the UAPA and
was sentenced to undergo a custody period of twelve and a half years
only. The appellant, despite facing comparatively less grave Charges,
has already undergone a substantial term of custody of around 7 years
and yet remains an under-trial.
27. It was submitted that A-2 to A-4 were actively involved in
hawala operations to transfer funds to Jammu & Kashmir using
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impoverished intermediaries. By contrast, the only allegation against
the appellant is that he received Rs. 2,74,744/- in six installments from
co-accused A-6 through Western Union Money Transfer, which the
appellant categorically denies. The prosecution, he submitted, has
failed to demonstrate any nexus between the appellant and any
specific terrorist act, or any material to establish the requisite intent
under Sections 17, 18, or 38 of the UAPA.
28. The learned counsel submitted that the appellant has clean
antecedents, having served as a Senior Lab Technician in the
Department of Microbiology, Sher-e-Kashmir Institute of Medical
Sciences (SKIMS), Soura, since 1989. There have been no
disciplinary complaints against him, nor does he have any criminal
history. The prosecution’s attempt to taint him only because of he
being the son of Mohammad Yousuf Shah @ Syed Salahuddin, is
wholly unjustified and impermissible.
29. It was contended that neither the FIR dated 25.04.2011 nor the
initial Charge-Sheets mentioned the name of the appellant. His name
surfaced only in 2018, and he was not even asked to join the
investigation for over 7 years after the registration of the FIR. Unlike
the other co-accused, there exist no call records, money trails, or
testimonial linkages between the appellant and the absconding co-
accused Maqbool Pandit (A-5) or Aijaz Ahmad Bhat (A-6).
30. The learned counsel submitted that the reliance of the NIA on
Section 106 of the Indian Evidence Act, 1872, is misplaced, as Section
106 does not absolve the prosecution of its initial burden to establish a
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prima facie case. In the absence of evidence proving a nexus with a
terrorist act under Sections 15, 17, or 18 of the UAPA, the burden
does not shift to the appellant. Reliance was placed on the decision of
the Supreme Court in Anees v. State Govt. of NCT of Delhi, 2024
INSC 368.
31. The learned counsel submitted that the prosecution’s allegation
that the appellant is a flight risk, is amiss, as the appellant has duly
responded to all the notices issued to him by the NIA. A Non-Bailable
Warrant was issued against him only when he failed to respond to
three notices to join the investigations. On one occasion, the notice
was received two days late, which was duly endorsed on the notice
itself. On another occasion, due to medical incapacity, he could not
appear, which was communicated to the NIA along with documentary
proof.
32. The learned counsel further submitted that the appellant’s
continued incarceration is causing serious hardship to his family. His
wife suffers from multiple health conditions, including Chronic
Idiopathic Thrombocytopenic Purpura, Chronic liver disease with
Steatosis Grade S3, diabetes, and Bilateral Knee Arthropathy with
osteoarthritis. His daughter is afflicted with Cervical Spondylosis,
PCOD, and a psychiatric disorder, while his son suffers from a
gastrointestinal disorder. He submits that the learned Special Court
failed to consider the medical records of his family members, which
were produced before it, while declining his regular bail.
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33. Lastly, it was urged that the mere framing of Charges does not
disentitle an accused from being granted bail, especially when the
conditions under Section 43D (5) of the UAPA are not attracted.
34. In view of the above, the learned counsel prayed that the appeal
be allowed, the Impugned Order dated 09.07.2021 rejecting the
appellant’s bail application be set aside, and the appellant be enlarged
on regular bail.
35. In support of his contentions, the learned counsel has relied
upon the following decisions:
i. Vernon v. State of Maharashtra & Anr., 2023 SCC
OnLine SC 885;
ii. Thawaha Fasal v. Union of India, 2021 SCC
OnLine SC 1000;
iii. Ranjitsingh Brahmajeetsing Sharma v. State of
Maharashtra & Anr., (2005) 5 SCC 294;
iv. NIA v. Zahoor Ahmed Shah Watali, (2019) 5 SCC
1;
v. Anter Singh v. State of Rajasthan, (2004) 10 SCC
657;
vi. Gurwinder Singh v. State of Punjab & Anr., 2024
SCC OnLine SC 109;
vii. Union of India v. K.A.Najeeb, (2021) 3 SCC 713;
viii. Ashim @ Asim Kumar Haranath Kumar
Bhattacharya v. NIA, (2022) 1 SCC 695;
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ix. Jahir Hak v. State of Rajasthan, (2022) SCC
OnLine SC 441;
x. Mohd Muslim @ Hussain v. State of NCT of Delhi,
(2023) SCC OnLine SC 352;
xi. Yedela Subba Rao & Anr. v. Union of India, (2023)
6 SCC 65;
xii. Baidyanath Prasad Srivastava v. State of Bihar,
1968 SCC OnLine SC 255;
xiii. Kashi Ram & Ors. v State of MP, (2002) 1 SCC 71;
xiv. State NCT of Delhi v Navjyot Sandhu, (2005) 11
SCC 600.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
36. Mr. Banerjee, the learned Additional Solicitor General (ASG),
appearing on behalf of the NIA, while seeking dismissal of the appeal,
strongly submitted that the appellant has been arrayed as an accused in
a well-organized and transnational conspiracy involving hawala
funding to support terrorism in Jammu & Kashmir, orchestrated under
the aegis of the proscribed terrorist organization Hizb-ul-Mujahideen.
37. It was submitted that the appellant, Syed Ahmed Shakeel, is the
son of Mohammad Yousuf Shah @ Syed Salahuddin, the self-styled
commander-in-chief of Hizb-ul-Mujahideen and one of the most
wanted terrorists, whose activities have been declared inimical to the
sovereignty and integrity of India.
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38. The learned ASG submitted that the appellant is alleged to have
received large sums, amounting to Rs. 2,74,744/-, in six instalments
through Western Union Money Transfers from absconding co-accused
A-6, who was acting under the directions of the Hizb-ul-Mujahideen
leadership. These transactions were made at the behest of the
appellant’s father.
39. He submitted that although the appellant was duly summoned to
join the investigation, he failed to appear on 05.05.2018, 27.06.2018,
and 29.06.2018. His continued absence reflected a deliberate attempt
to evade interrogation by the NIA, thereby indicating a guilty mind
and criminal intent. Consequently, a Non-Bailable Warrant was issued
against him by the learned Special Court (NIA) on 06.07.2018,
pursuant to which he was arrested on 30.08.2018.
40. The learned ASG contended that there is ample evidence on
record in the form of Call Detail Records (CDRs), financial
transaction records, confessional statements, and testimonies of
witnesses, linking the appellant with other co-accused and the larger
criminal conspiracy. The receipt of hawala money by the appellant
directly connects him to the Hizb-ul-Mujahideen funding channel.
41. He submitted that the prosecution has established a prima facie
case against the appellant under Sections 17 and 18 of the UAPA,
which deal with raising funds for terrorist acts and involvement in
conspiracy to commit terrorist acts. These offences are of a grave
nature and attract the embargo on bail under Section 43D(5) of the
UAPA.
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42. It was further submitted that the investigation revealed that the
appellant is part of a wider network for mobilizing and transmitting
funds from abroad to finance terrorism in India. The role of the
appellant is not in isolation but rather deeply entwined with the
objectives of a banned terrorist organization.
43. The learned ASG submitted that the appellant’s claim of having
no connection with the other co-accused- A-6, is false. He submitted
that the involvement of the appellant has surfaced through careful
digital and documentary analysis of transactions, money trails, and
witness depositions. Specific witnesses have testified regarding the
financial trail linking the appellant to Hizb-ul-Mujahideen operatives.
44. With respect to the contention that the accused A-2 to A-4 were
convicted for more serious offences and awarded lesser sentences or
that the co-accused A-1 was awarded a sentence of 12 and half years
only, it was submitted that their conviction followed either a plea of
guilt after full disclosure of their roles or upon conviction, which
stands on a different footing. The appellant, he submits, in contrast,
continues to deny his involvement, and the trial against him is
proceeding independently.
45. It was submitted that the appellant’s reliance on his
medical/family circumstances is a general ground and cannot be a
consideration when national security is involved. There is no evidence
to suggest that the appellant’s continued incarceration is endangering
his family’s lives or well-being in an exceptional manner.
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46. The learned ASG, while acknowledging the appellant’s right to
a speedy trial, submitted that 30 witnesses will be dropped from the
prosecution’s witness list and that the trial may conclude by the end of
the year, provided the case is heard four days a week by the learned
Trial Court.
47. Lastly, the learned ASG emphasized that the burden to explain
the source of the funds received, lies with the appellant. He submits
that as a government servant, a higher standards of probity applies to
the appellant. He submits that the invocation of Section 106 of the
Indian Evidence Act, 1872, in the present case is justified, as the facts
relating to the transactions are within the special knowledge of the
appellant.
48. In view of the above, the respondent prayed for the dismissal of
the appeal, contending that the appellant’s continued detention is
justified under law and on the facts of the case, and that the embargo
under Section 43D (5) of the UAPA squarely applies to the present
matter.
49. In support of his contentions, the learned ASG relied on the
following judgments:
i. Union of India rep. by Inspector of Police
National Investigation Agency Chennai
Branch v. Barakathullah etc., 2024 SCC
OnLine SC 1019;
ii. Yash Pal Mittal vs. State of Punjab, (1977) 4
SCC 540;
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iii. Gurwinder Singh vs State of Punjab & Anr.,
(2024) 5 SCC 403.
SUBMISSIONS OF THE APPELLANT IN REJOINDER
50. In rejoinder, Mr. Jawahar Raja, the learned counsel for the
appellant, submitted that the case of the prosecution is weak against
the appellant, as the alleged transactions had occurred in the year
2010, prior to the date on which Mohammad Yousuf Shah @ Syed
Salahuddin, the appellant’s father, was declared a terrorist, which
occurred on 27.10.2010.
51. He submitted that the prosecution’s case is primarily based on
the appellant’s disclosure statement, which does not even reveal that
the appellant was ever involved in any terrorist activity or had any
knowledge that the alleged funds received in his account had any link
to a terrorist organization, a terrorist gang, or an individual terrorist.
He further submitted that the prosecution has also failed to establish
any intention on the part of the appellant to further the activities of a
terrorist organization.
52. Furthermore, unlike the Prevention of Money Laundering Act,
2002 (PMLA), he submitted that under the UAPA, there is no
statutory presumption qua the receipt or possession of funds.
ANALYSIS AND CONCLUSION
53. Having heard the learned counsel for the appellant, the learned
ASG for the respondent, and having perused the record and the
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judgments furnished by the parties, we may, at the outset, consider the
common submission made by Mr. Jawahar Raja on behalf of both the
appellants. He contends that although charges were framed against the
appellants on 07.02.2020, the prosecution has examined only 32
witnesses till date. As a large number of witnesses remain to be
examined, it indicates that there is no likelihood of the trial concluding
in the near future. He submitted that the appellants have been in
custody since the date of their arrest, the appellant Syed Ahmed
Shakeel having spent 6 years and 11 months in incarceration, and the
appellant Shahid Yousuf having undergone incarceration of a period
of 7 years and 8 months, which he argued, is inherently violative of
the appellants’ fundamental rights under Article 21 of the Constitution
of India.
54. It was further submitted that the NIA’s failure to produce
material witnesses or case property on various listed dates, and its
practice of summoning irrelevant witnesses, indicate a lack of urgency
in prosecuting the trial.
55. On the contrary, with respect to the issue of delay, the learned
ASG submitted that mere delay in the trial cannot be a ground to
override the statutory bar under Section 43D (5) of the UAPA,
especially when the Charges are grave and the evidence implicates the
appellants in aiding a terrorist organisation. The delay, he argued, is
not attributable to the prosecution but rather to the complexity of the
case and the necessity of a number of witnesses to be examined by the
prosecution.
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56. To consider the above submissions, it would be apposite to note
the provision under Section 43D of UAPA, which reads as under:-
“Modified application of certain
provisions of the Code.
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.”
57. Section 43D (5) of the UAPA has been analysed in various
decisions of the Supreme Court as well as by Co-ordinate Benches of
this Court. The Supreme Court, in the case of Zahoor Ahmed Shah
Watali (supra), has culled out the criteria on which the grant of bail is
to be tested under the UAPA. The relevant extract is:
“21. Before we proceed to analyse the
rival submissions, it is apposite to
restate the settled legal position about
matters to be considered for deciding an
application for bail, to wit:
(i) whether there is any prima facie or
reasonable ground to believe that the
accused had committed the offence;
(ii) nature and gravity of the charge;
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(iii) severity of the punishment in the
event of conviction;
(iv) danger of the accused absconding or
fleeing, if released on bail;
(v) character, behaviour, means,
position and standing of the accused;
(vi) likelihood of the offence being
repeated;
(vii) reasonable apprehension of the
witnesses being tampered with; and
(viii) danger, of course, of justice being
thwarted by grant of bail. (State of U.P.
v. Amarmani Tripathi [State of U.P. v.
Amarmani Tripathi, (2005) 8 SCC 21,
para 18 : 2005 SCC (Cri) 1960 (2)] .)
xxxx
25. From the analysis of the impugned
judgment [Zahoor Ahmad Shah Watali v.
NIA, 2018 SCC OnLine Del 11185] , it
appears to us that the High Court has
ventured into an area of examining the
merits and demerits of the evidence. For,
it noted that the evidence in the form of
statements of witnesses under Section
161 are not admissible. Further, the
documents pressed into service by the
investigating agency were not admissible
in evidence. It also noted that it was
unlikely that the document had been
recovered from the residence of Ghulam
Mohammad Bhatt till 16-8-2017 (para
61 of the impugned judgment). Similarly,
the approach of the High Court in
completely discarding the statements of
the protected witnesses recorded under
Section 164 CrPC, on the specious
ground that the same was kept in a
sealed cover and was not even perused
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by the Designated Court and also
because reference to such statements
having been recorded was not found in
the charge-sheet already filed against
the respondent is, in our opinion, in
complete disregard of the duty of the
Court to record its opinion that the
accusation made against the accused
concerned is prima facie true or
otherwise. That opinion must be reached
by the Court not only in reference to the
accusation in the FIR but also in
reference to the contents of the case
diary and including the charge-sheet
(report under Section 173 CrPC) and
other material gathered by the
investigating agency during
investigation.”
58. In the case of K.A.Najeeb (supra), the Supreme Court
distinguished the law laid down in the case of Zahoor Ahmed Shah
Watali (supra) and held that while Courts are expected to appreciate
the legislative policy against the grant of bail, the rigours of such
provision will abate when there is no likelihood of the trial being
completed within a reasonable time, and the period of incarceration
already undergone has exceeded a substantial part of the prescribed
sentence. The relevant portion is reproduced as under:
“16. As regards the judgment in NIA v.
Zahoor Ahmad Shah Watali [NIA v.
Zahoor Ahmad Shah Watali, (2019) 5
SCC 1 : (2019) 2 SCC (Cri) 383] , cited
by the learned ASG, we find that it dealt
with an entirely different factual matrix.
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In that case, the High Court [Zahoor
Ahmad Shah Watali v. NIA, 2018 SCC
OnLine Del 11185] had reappreciated
the entire evidence on record to overturn
the Special Court’s concltawusion of
their being a prima facie case of
conviction and concomitant rejection of
bail. The High Court had practically
conducted a mini-trial and determined
admissibility of certain evidence, which
exceeded the limited scope of a bail
petition. This not only was beyond the
statutory mandate of a prima facie
assessment under Section 43-D(5), but it
was premature and possibly would have
prejudiced the trial itself. It was in these
circumstances that this Court intervened
and cancelled the bail.”
59. Section 43D (5) of the UAPA further came under consideration
before the Supreme Court in the case of Thawaha Fasal (supra). The
relevant portion of the decision is reproduced as under:
” 26. Therefore, while deciding a bail
petition filed by an accused against
whom offences under Chapters IV and
VI of the 1967 Act have been alleged, the
court has to consider whether there are
reasonable grounds for believing that
the accusation against the accused is
prima facie true. If the court is satisfied
after examining the material on record
that there are no reasonable grounds for
believing that the accusation against the
accused is prima facie true, then the
accused is entitled to bail. Thus, the
scope of inquiry is to decide whetherSignature Not Verified
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prima facie material is available against
the accused of commission of the
offences alleged under Chapters IV and
VI. The grounds for believing that the
accusation against the accused is prima
facie true must be reasonable grounds.
However, the court while examining the
issue of prima facie case as required by
sub-section (5) of Section 43-D is not
expected to hold a mini trial. The court
is not supposed to examine the merits
and demerits of the evidence. If a
charge-sheet is already filed, the court
has to examine the material forming a
part of charge- sheet for deciding the
issue whether there are reasonable
grounds for believing that the accusation
against such a person is prima facie
true. While doing so, the court has to
take the material in the charge-sheet as
it is.”
60. On the other hand, the learned ASG strongly relied upon the
decision of the Supreme Court in Gurwinder Singh (supra) and
contended that, in the said case, the Supreme Court had considered its
earlier decisions, including Zahoor Ahmed Shah Watali (supra) and
K.A. Najeeb (supra), and had dismissed the bail appeal. He submitted
that the Supreme Court further clarified the principles governing the
consideration of bail applications in cases involving offences under
the provisions of the UAPA, which are set out below:
“26. The conventional idea in bail
jurisprudence vis-à-vis ordinary penal
offences that the discretion of courts must tilt
in favour of the oft-quoted phrase — “bail isSignature Not Verified
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the rule, jail is the exception” — unless
circumstances justify otherwise — does not
find any place while dealing with bail
applications under the UAP Act. The
“exercise” of the general power to grant bail
under the UAP Act is severely restrictive in
scope. The form of the words used in the
proviso to Section 43-D(5)— “shall not be
released” in contrast with the form of the
words as found in Section 437(1)CrPC —
“may be released” — suggests the intention of
the legislature to make bail, the exception and
jail, the rule.
27. The courts are, therefore, burdened with a
sensitive task on hand. In dealing with bail
applications under the UAP Act, the courts are
merely examining if there is justification to
reject bail. The “justifications” must be
searched from the case diary and the final
report submitted before the Special Court. The
legislature has prescribed a low, “prima
facie” standard, as a measure of the degree of
satisfaction, to be recorded by the Court when
scrutinising the justifications [materials on
record]. This standard can be contrasted with
the standard of “strong suspicion”, which is
used by courts while hearing applications for
“discharge”. In fact, the Supreme Court
in Zahoor Ahmad Watali [NIA v. Zahoor
Ahmad Shah Watali, (2019) 5 SCC 1 : (2019)
2 SCC (Cri) 383] has noticed this difference,
where it said : (SCC p. 24, para 23)
“23. … In any case, the degree of
satisfaction to be recorded by the
court for opining that there are
reasonable grounds for believing
that the accusation against the
accused is prima facie true, is
lighter than the degree of
satisfaction to be recorded for
considering a discharge
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in relation to offences under the
1967 Act.”
(emphasis supplied)
28. In this background, the test for rejection of
bail is quite plain. Bail must be rejected as a
“rule”, if after hearing the Public Prosecutor
and after perusing the final report or case
diary, the court arrives at a conclusion that
there are reasonable grounds for believing
that the accusations are prima facie true. It is
only if the test for rejection of bail is not
satisfied — that the courts would proceed to
decide the bail application in accordance with
the “tripod test” (flight risk, influencing
witnesses, tampering with evidence). This
position is made clear by sub-section (6) of
Section 43-D, which lays down that the
restrictions, on granting of bail specified in
sub-section (5), are in addition to the
restrictions under the Code of Criminal
Procedure or any other law for the time being
in force on grant of bail.
29. On a textual reading of Section 43-D(5) of
the UAP Act, the inquiry that a bail court must
undertake while deciding bail applications
under the UAP Act can be summarised in the
form of a twin-prong test:
(1) Whether the test for rejection of
the bail is satisfied?
1.1. Examine if, prima facie, the
alleged “accusations” make out an
offence under Chapter IV or VI of
the UAP Act;
1.2. Such examination should be
limited to case diary and final
report submitted under Section
173CrPC;
(2) Whether the accused deserves
to be enlarged on bail in light of
the general principles relating to
grant of bail under Section
439CrPC (“tripod test”)?
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On a consideration of various factors such as
nature of offence, length of punishment (if
convicted), age, character, status of accused,
etc. the court must ask itself:
2.1. Whether the accused is a flight
risk?
2.2. Whether there is apprehension
of the accused tampering with the
evidence?
2.3. Whether there is apprehension
of accused influencing witnesses?
30. The question of entering the “second test”
of the inquiry will not arise if the “first test” is
satisfied. And merely because the first test is
satisfied, that does not mean however that the
accused is automatically entitled to bail. The
accused will have to show that he successfully
passes the “tripod test”.
Test for rejection of bail : Guidelines as laid
down by Supreme Court inWatali
case [NIA v. Zahoor Ahmad Shah Watali,
(2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383]
31. In the previous section, based on a textual
reading, we have discussed the broad inquiry
which courts seized of bail applications under
Section 43-D(5) of the UAP Act read with
Section 439CrPC must indulge in. Setting out
the framework of the law seems rather easy,
yet the application of it, presents its own
complexities. For greater clarity in the
application of the test set out above, it would
be helpful to seek guidance from binding
precedents.
32. In this regard, we need to look no further
than Watali case [NIA v. Zahoor Ahmad Shah
Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri)
383] which has laid down elaborate guidelines
on the approach that courts must partake in, in
their application of the bail limitations under
the UAP Act. On a perusal of paras 23 to 24
and 26 to 27, the following 8-point
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propositions emerge and they are summarised
as follows:
32.1.Meaning of “prima facie true” : (Watali
case [NIA v. Zahoor Ahmad Shah Watali,
(2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] ,
SCC p. 24, para 23)
On the face of it, the materials
must show the complicity of the
accused in commission of the
offence. The materials/evidence
must be good and sufficient to
establish a given fact or chain of
facts constituting the stated
offence, unless rebutted or
contradicted by other evidence.
32.2.Degree of satisfaction at pre charge-
sheet, post charge-sheet and post-charges —
compared : (Watali case [NIA v. Zahoor
Ahmad Shah Watali, (2019) 5 SCC 1 : (2019)
2 SCC (Cri) 383] , SCC p. 28, para 26)
“26. … once charges are framed,
it would be safe to assume that a
very strong suspicion was founded
upon the materials before the
Court, which prompted the Court
to form a presumptive opinion as
to the existence of the factual
ingredients constituting the offence
alleged against the accused, to
justify the framing of charge. In
that situation, the accused may
have to undertake an arduous task
to satisfy the Court that despite the
framing of charge, the materials
presented along with the charge-
sheet (report under Section
173CrPC), do not make out
reasonable grounds for believing
that the accusation against him is
prima facie true. Similar opinion is
required to be formed by the Court
whilst considering the prayer for
bail, made after filing of the first
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report made under Section 173 of
the Code, as in the present case.”
32.3.Reasoning, necessary but no detailed
evaluation of evidence : (Watali
case [NIA v. Zahoor Ahmad Shah Watali,
(2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] ,
SCC p. 27, para 24)
“24. … the exercise to be
undertaken by the Court at this
stage–of giving reasons for grant
or non-grant of bail–is markedly
different from discussing merits or
demerits of the evidence. The
elaborate examination or
dissection of the evidence is not
required to be done at this stage.”
32.4.Record a finding on broad probabilities,
not based on proof beyond doubt : (Watali
case [NIA v. Zahoor Ahmad Shah Watali,
(2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] ,
SCC p. 27, para 24)
“The Court is merely expected to
record a finding on the basis
of broad probabilities regarding
the involvement of the accused in
the commission of the stated
offence or otherwise.”
32.5.Duration of the limitation under Section
43-D(5) : (Watali case [NIA v. Zahoor Ahmad
Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC
(Cri) 383] , SCC p. 27, para 26)
“26. … the special provision,
Section 43-D of the 1967 Act,
applies right from the stage of
registration of FIR for the offences
under Chapters IV and VI of the
1967 Act until the conclusion of
the trial thereof.”
32.6.Material on record must be analysed as
a “whole”; no piecemeal analysis : (Watali
case [NIA v. Zahoor Ahmad Shah Watali,
(2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] ,
SCC p. 28, para 27)
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“27. … the totality of the material
gathered by the investigating
agency and presented along with
the report and including the case
diary, is required to be reckoned
and not by analysing individual
pieces of evidence or
circumstance.”
32.7.Contents of documents to be presumed
as true : (Watali case [NIA v. Zahoor Ahmad
Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC
(Cri) 383] , SCC p. 28, para 27)
“27. … The Court must look at the
contents of the document and take
such document into account as it
is.”
32.8.Admissibility of documents relied upon
by prosecution cannot be questioned : (Watali
case [NIA v. Zahoor Ahmad Shah Watali,
(2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] ,
SCC pp. 24 & 28, paras 23 & 27)
The materials/evidence collected
by the investigation agency in
support of the accusation against
the accused in the first information
report must prevail until
contradicted and overcome or
disproved by other evidence…. In
any case, the question of
discarding the document at this
stage, on the ground of being
inadmissible in evidence, is not
permissible.
61. We may herein note that subsequent to the decision of
Gurwinder Singh (supra), the Supreme Court, in the case titled
Sheikh Javed Iqbal v. State of Uttar Pradesh, 2024 INSC 534, held
that when a trial is prolonged, the prosecution cannot oppose bail for
an undertrial solely on the ground that the charges are very serious. It
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was further observed that K.A. Najeeb (supra), which was decided by
a three-judge bench, is binding on a two-judge bench, such as in
Shaikh Jawed Iqbal (supra). Significantly, in Shaikh Jawed Iqbal
(supra), the Supreme Court also observed that, depending on the facts
of a particular case, the Constitutional Court may decline to grant bail.
62. Subsequently, a review petition was filed in Gurwinder Singh
(supra), wherein the Supreme Court noted that the said decision was
based on the specific facts and circumstances of the case and
dismissed the review petition.
63. From the above legal position, it is evident that while
adjudicating a bail application under the UAPA, it is requisite for the
Court to satisfy itself that there exists reasonable grounds for believing
that the allegations made against the accused are prima facie true. In
this regard, the Court is required to examine the material and evidence
collected by the Investigating Agency in support of the allegations
levelled against the accused. Accordingly, the nature of the offence
and the prosecution’s case regarding the manner in which the offence
was committed must be taken into account for the purpose of forming
a prima facie view.
64. Furthermore, Section 43D (5) of the UAPA does not take away
the power of the Constitutional Courts to grant bail, especially when
an accused has been in jail for a long period and there is no likelihood
of the trial concluding soon. The right to life and personal liberty
under Article 21 of the Constitution of India is of paramount
importance, and if this right is being violated, the Court can grant bail.
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However, the grant of bail ultimately depends on the specific facts and
circumstances of each case.
65. The present appeal, therefore, ought to be considered in view of
the aforementioned binding principles of law as enunciated herein
above.
66. Now turning to the allegations against the appellant, Syed
Ahmed Shakeel (A-8), it is alleged that between 2009 and 2010, the
appellant wilfully received and collected terror funds totalling Rs.
2,74,444/- in six instalments, which include Rs. 50,000/- on
09.03.2009, Rs. 50,000/- on 24.06.2009, Rs. 50,000/- on 29.06.2009,
Rs. 24,744/- on 01.10.2009, Rs. 50,000/- on 19.01.2010 and another
Rs. 50,000/- again on 19.01.2010. These amounts were allegedly
received from co-accused Aijaz Ahmad Bhat (A-6) through Western
Union Money Transfer, using multiple identity cards of the appellant,
including his office ID and election card.
67. The prosecution further alleges that the said money was
collected by the appellant with full knowledge that these funds had
been raised, received, and collected by members of the Hizb-ul-
Mujahideen terrorist outfit, led by his father, Mohammad Yousuf
Shah @ Syed Salahuddin. The said terrorist organization has been
involved in several terrorist activities in the State of Jammu &Kashmir
and other parts of India, resulting in the deaths of innocent persons
and damage to the property belonging to the Government of India and
the Government of Jammu & Kashmir.
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68. It is further alleged that Mohammad Yousuf Shah @ Syed
Salahuddin had received and collected terror funds from various
sources, including government agencies in the Islamic Republic of
Pakistan, the Kingdom of Saudi Arabia, and other Islamic Countries,
through different means, and had these funds transferred to India
through Aijaz Ahmad Bhat (A-6) and others, for the furtherance of
terrorist activities.
69. The further case of the prosecution is that A-6 used the
addresses of Ijaz Ahmad Abdull R/o Sittin City, JED, Saudi Arabia,
and Eijaz Ahmad Mohammad Abdullah R/o Msuhrfa, Jehdha, Saudi
Arabia, to transfer the funds to the appellant.
70. The investigation further revealed that cash deposits of Rs.
90,000/-, Rs. 12,000/- and Rs. 40,000/- were made on 20.01.2010,
08.03.2010 and 26.03.2010 respectively (amounting to a total of Rs.
1.42 lakhs) into a loan account of J&K Bank, SKIMS Branch, Soura,
Srinagar, standing in the name of A-8. In addition to the aforesaid,
cash amounts of Rs. 1,00,000/- and Rs. 12,000/- were deposited on
01.05.2008 and 19.06.2008, respectively (totalling Rs. 1.12 lakhs) into
another loan account of the appellant, maintained with the same bank
branch. Likewise, cash deposits of Rs. 61,500/- and Rs. 1,00,000/-
were made on 10.11.2016 and 13.03.2018, respectively, in the
salary/savings account of the appellant.
71. It is the case of the prosecution that a total amount of Rs. 4.15
lakhs was deposited in cash in the bank accounts of the appellant.
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72. Upon being questioned regarding the source of the said cash
deposits, the appellant, in his disclosure statement, stated that the said
amounts were deposited by him towards repayment of the loan.
However, he was unable to disclose or substantiate the source from
which the said amounts were obtained.
73. The prosecution has claimed that the appellant, in pursuance to
the criminal conspiracy and in connivance with A-6 and other
members of Hizb-ul-Mujahideen, acted as a member of the terrorist
gang/organization, indulged in unlawful activities, raised and
mobilized funds from Saudi Arabia, and held proceeds of terrorism to
support terror activities of Hizb-ul-Mujahideen in the State of Jammu
& Kashmir and other parts of India.
74. To support the allegations against the appellant, the prosecution
has relied upon documents received from the Post Office and the
Office of the Director of Accounts (Postal), J&K Circle, which
contain the handwriting and signatures of the accused, as well as
receipts obtained from Western Union Services Pvt. Ltd.
75. In his Disclosure Statement (D-191 and D-192), the appellant
has stated that he used to receive telephone calls from his father, who
was residing in Islamabad, Pakistan. However, he claimed that he
never made any calls to his father. He further disclosed that during the
years 2009-2010, he received six to seven telephone calls from Aijaz
Ahmad Bhat (A-6). Additionally, he stated that in the year 2009, on
one occasion, his father informed him over the phone that one person,
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Aijaz, would call him and provide him with a number, and that he was
to act upon the directions received accordingly.
76. In view of the foregoing, the main allegations summed up
against the appellant are as follows:
i. That he had received funds to the tune of Rs. 2,74,744/- on
six different occasions, from a proclaimed offender and co-
accused A-6, who had sent the money through Western
Union Money Transfers at the behest of his father;
ii. That there were unaccounted cash deposits amounting to Rs.
4.15 lakhs in his bank accounts;
iii. That these funds were received by the appellant while acting
as a member of the proscribed terrorist organization, Hizb-
ul-Mujahideen, and pursuant to a larger criminal conspiracy;
iv. It is also alleged that the appellant had been receiving phone
calls from his father, who is presently residing in Pakistan
and is the leader of the aforesaid organization, and has been
declared a terrorist.
77. The learned counsel for the appellant vociferously submitted
that although charges under Sections 17, 18 and 38 of the UAPA and
Section 120B of the IPC have been framed against the appellant, an
appeal against the framing of charge is pending adjudication before
this Court. More so, there is not an iota of evidence on record to allege
that appellant has been a member of the Hizb-ul-Mujahideen or that he
had any knowledge that the alleged money received in his account was
to be used towards terrorist activities.
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78. We have considered the facts and circumstances of the present
case. The trial is underway, therefore, we are restraining ourselves to
delve deep into the evidence. Suffice it to say here that the mainstay of
the prosecution against the appellant is the receipt of money and not
its use for any terrorist activity. The appellant therefore, has satisfied
the test under Section 43D(5) of the UAPA.
79. The prosecution is yet to examine a substantial number of
witnesses, as only 32 witnesses have been examined till date. Though
the learned ASG has submitted that the trial can end by the end of the
year, this is with a rider that the learned Trial Court takes up the trial
four times a week for full day. We are not directing the learned
Special Court to do so, as there would be other trials also pending
before it. It is for the learned Special Court to manage its Board and to
determine the matter which needs to be prioritised over others.
80. The co-accused A-2, A-3, and A-4 already pleaded guilty to
offences under Sections 13, 17, 18 and 20 of the UAPA, and vide
Order dated 04.06.2018, were sentenced to the period already
undergone by them in custody since their date of arrest, which was 7
years and 4 months, along with a fine. The co-accused A-1 was
convicted for 12.5 years under Sections 13 and 18 of the UAPA vide
Order dated 22.05.2023.
81. The appellant has already suffered prolonged incarceration of
around 6 years and 11 months, without any certainty of the trial
concluding within a reasonable time.
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82. The learned ASG had emphasized the conduct of the appellant
in failing to appear before the NIA despite the service of three notices
requiring him to join the investigation. The appellant has offered an
explanation for his non-appearance, which has not been challenged by
the respondent. Moreover, the appellant is a Government Servant,
working as a Senior Lab Technician in the Department of
Microbiology at Sher-i-Kashmir Institute of Medical Sciences, Soura.
83. In our considered opinion, keeping in view the role assigned to
the appellant, continued detention of the appellant at this stage would
not serve the ends of justice.
84. Accordingly, we enlarge the appellant on bail in the present
case, on his furnishing a personal bond in the sum of Rs. 1,00,000/-
with two sureties of like amount, to the satisfaction of the learned
Trial Court/ Special Court/CMM/ Duty Magistrate, and further subject
to the following conditions:-
i. The appellant shall not leave India without prior permission
of the learned Trial Court;
ii. The appellant shall surrender his passport before the learned
Trial Court and shall not travel abroad without taking prior
permission from the learned Trial Court.
iii. The appellant shall report at the Local Area Police Station
twice a week, that is, every Monday and Thursday at 04:00
P.M., for marking his presence;
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iv. The appellant shall intimate the learned Trial Court, by way
of an affidavit and also inform the Investigating Officer
regarding any change of residential address;
v. The appellant shall appear before the learned Trial Court as
and when the matter is taken up for hearing;
vi. The appellant is directed to provide his mobile number to
the Investigating Officer and keep it operational at all times;
vii. The appellant shall not contact, nor visit, nor offer any
inducement, threat, or promise to any of the prosecution
witnesses or other persons acquainted with the facts of the
case;
viii. The appellant shall also not tamper with the evidence nor
otherwise indulge in any act or omission that is unlawful or
that would prejudice the proceedings in the pending trial.
85. It is made clear that no observations made above shall be
tantamount to an expression on the merits of the appellant’s case, and
they have been made for the purpose of consideration of bail alone.
86. A copy of this order be sent to the Jail Superintendent
concerned for information and necessary compliance.
87. Accordingly, the present appeal is allowed.
CRL. A 1023/2024 (SHAHID YUSUF, A-7)
88. The prosecution claims that the appellant Shahid Yusuf, had
entered into a conspiracy to raise and collect funds from co-accused,
namely, Aijaz Ahmad Bhat (A-6), who is a cadre of the proscribed
terrorist organization Hizb-ul-Mujahideen. It is further the case of the
Signature Not Verified
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By:RASHIM KAPOOR
Signing Date:08.08.2025
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prosecution that corroborative material on record demonstrates that
the appellant, while acting as a member of Hizb-ul-Mujahideen, was
part of a larger conspiracy to raise funds with the intention of
supporting the activities of the terror outfit.
89. It is alleged that the appellant received terror funds amounting
to a total of Rs. 4,40,850/- in nine installments between 2008 and
2014, eight times from GPO, Srinagar, and once from Sanatnagar,
Budgam, through Western Union Money Transfer Service. The said
amounts include Rs. 50,000/- on 16.09.2008, Rs. 50,000/- on
31.01.2011, Rs. 49,900/- on 17.09.2011, Rs. 49,950/- on 14.10.2011,
Rs. 50,000/- on 02.01.2012, Rs. 50,000/- on 22.02.2012, Rs. 49,000/-
on 19.11.2014, Rs. 47,000/- on 13.05.2014, and Rs. 45,000/- on
30.09.2014.
90. It is further alleged that appellant had consistently furnished his
mobile number along with other identity documents in the records of
GPO, Srinagar, at the time of receiving the aforesaid amounts during
the relevant period between 15.09.2008 and 28.09.2014. Moreover, in
the year 2011, there were three telephonic communications between
A-6 and the appellant.
91. Furthermore, various diaries recovered from the possession of
the appellant indicate that he was in contact with his father. It has also
come to light that the appellant travelled to Dubai in 1999-2000 using
a passport bearing his name, in which his father’s name was recorded
as Mohd Yousuf Mir. During this visit, the appellant allegedly met
both, his father- Mohammad Yousuf Shah @ Syed Salahuddin, and
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Digitally Signed CRL.A. 262/2021 & CRL.A. 1023/2024 Page 37 of 47
By:RASHIM KAPOOR
Signing Date:08.08.2025
17:39:46
Nazir Ahmed Qureshi, a key hawala operator and fundraiser for Hizb-
ul-Mujahideen.
92. It is further alleged that the appellant received a sum of 3,000
UAE Dirhams from his father during this visit.
93. It is alleged that the appellant received ‘proceeds of terrorism’
with full knowledge that the said funds had been raised, received, and
collected by members of Hizb-ul-Mujahideen, which is led by his
father.
94. The prosecution further claims that the funds originated under
the directions of Mohammad Yousuf Shah @ Syed Salahuddin,
Supreme Commander of Hizb-ul-Mujahideen, and were routed
through operatives based in Pakistan, Saudi Arabia, and other Islamic
countries, through various channels, and that these terror funds were
transferred to India through co-accused A-6 and other operatives for
the purpose of furthering terrorist activities within the territory of
India.
95. It has also been alleged that Mohammad Yousuf Shah @ Syed
Salahuddin had been transferring terror funds in foreign currency
through his grandson, namely, Muzammil Khan, son of Nazir Ahmad
Khan and nephew of the appellant, who pursued his studies in
Pakistan from the year 2010 till April 2017. It has further come to
light that Muzammil Khan was a witness to the meetings held between
Mohammad Yousuf Shah @ Syed Salahuddin and Nazir Ahmed
Qureshi at the former’s residence in Pakistan. The forensic
examination of the mobile phone, SIM cards, and SD card seized from
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By:RASHIM KAPOOR
Signing Date:08.08.2025
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the possession of the appellant revealed that he was in telephonic as
well as online communication with the said Nazir Ahmed Qureshi and
his sons. Furthermore, Muzammil Khan had had given 500 euros to
the appellant.
96. The investigation revealed that A-6 was in telephonic contact
with the appellant and had used multiple mobile numbers in Saudi
Arabia to remain in touch with his associates for the purpose of
funding terrorist and other related unlawful activities during the
relevant period. Telephonic calls were made by A-6 on 30.01.2011 to
the appellant and on 31.01.2011, A-6 had transferred an amount of Rs.
50,000/- to the appellant through Western Union Money Transfer.
97. It is stated that the association of the appellant with the
aforementioned Nazir Ahmed Qureshi, coupled with his association
with A-6, clearly establishes that the appellant was actively involved
in raising, receiving, and transferring funds through members of the
said terrorist outfit and associates of Mohammad Yousuf Shah @
Syed Salahuddin, as part of a larger criminal conspiracy to raise and
route terror funds to the State of Jammu and Kashmir for the purpose
of carrying out terrorist activities.
98. In order to substantiate the allegations against the appellant, the
prosecution has placed reliance upon D-144 to D-155 and D-154,
which comprise letters received from Western Union Money Transfer
and the Srinagar GPO, indicating the receipt of funds by the appellant
from A-6.
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By:RASHIM KAPOOR
Signing Date:08.08.2025
17:39:46
99. Further reliance is placed on documents D-136 to D-143, being
the disclosure statements of the appellant, wherein he has admitted to
raising, receiving, and collecting funds from A-6, and to having
visited Dubai to meet Nasir Ahmad Qureshi, a fundraiser for Hizb-ul-
Mujahideen. Additionally, reliance is placed on D-129 and D-131,
being handwritten diaries of the appellant.
100. The NIA has placed reliance on document D-177, which,
according to the prosecution, establishes that the accused Shahid
Yousuf was in telephonic contact with A-6 during the year 2011 from
Saudi Arabia. Further reliance is placed on document D-178 to
establish the appellant’s connection with Nasir Ahmad Qureshi, a
fundraiser for Hizb-ul-Mujahideen.
SUBMISSIONS OF THE APPELLANT
101. Mr. Jawahar Raja, while seeking bail of the appellant, Sahid
Yusuf, apart from raising similar grounds regarding his long
incarceration of nearly seven years and eleven months, as well as the
period of sentence awarded to the co-accused A-2 to A-4 under
Sections 13, 17, 18, and 20 of the UAPA upon their conviction,
submitted that a bare reading of the second Charge-Sheet filed against
the appellant reveals that there is no material whatsoever, which may
even remotely inculpate the appellant in any offence, let alone the
serious charges that have been framed against him. It was submitted
that, even assuming the case of the prosecution in its entirety to be
true, the mere receipt of funds by the appellant from his father,
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By:RASHIM KAPOOR
Signing Date:08.08.2025
17:39:46
without anything more, would not constitute any offence under the
law.
102. The learned counsel submitted that the prosecution has heavily
placed reliance upon twelve diaries, purportedly containing
handwritten entries of the appellant, which, he submitted, are in no
manner incriminating so as to connect the appellant with any terrorist
act or organization. The said diaries merely contain disconnected
references pertaining to the appellant’s relationship with his father,
which in themselves are innocuous and do not disclose any element of
the commission of an offence or any ‘terrorist act’. He submitted that a
bare reading of the diaries reflects some personal notings of the
appellant, having no connection whatsoever with any terrorist
organization.
SUBMISSIONS OF THE RESPONDENT
103. The learned ASG, while seeking dismissal of the appeal,
submitted that the evidence gathered during the course of investigation
establishes that the appellant conspired to raise and collect funds from
the absconding co-accused, that is, A-6. The disclosure statements of
the appellant, when read in conjunction with other incriminating
evidence collected by the Investigating Agency, establishes that the
appellant was acting as a member of the terrorist organization – Hizb-
ul-Mujahideen and was a part of a larger conspiracy to raise funds
with the intent to further the activities of the said organisation.
104. Furthermore, it was submitted that the recovery of incriminating
handwritten diaries and other documents from the appellant
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By:RASHIM KAPOOR
Signing Date:08.08.2025
17:39:46
establishes that the appellant received funds at the behest of
Mohammad Yousuf Shah @ Syed Salahuddin and had met associates
of Mohammad Yousuf Shah @ Syed Salahuddin in Dubai. In
addition, other documentary evidence establishes that the appellant
was in telephonic contact with co-accused Aijaz Ahmad Bhat (A-6)
from Saudi Arabia and was also connected with Nasir Ahmad
Qureshi, another cadre of Hizb-ul-Mujahideen. The aforesaid
documentary evidence, when read in conjunction with the oral
evidence, that is, statements of protected/prosecution witnesses, he
submitted, prima facie establishes the offences alleged against the
appellant.
105. The learned ASG submitted that the appellant, on an earlier
occasion, had travelled to Dubai on a forged passport, wherein the
name of his father was mentioned as Mohd Yousuf Mir instead of
Mohammad Yousuf Shah or Syed Salahuddin.
106. The learned ASG, thus, submitted that in view of the material
available on record, the learned Special Court, vide Order dated
17.02.2020, framed charges against the appellant under Sections 120B
of the IPC and Sections 13, 17, 18, 20, 21, 38, and 40 of the UAPA.
107. He submitted that the allegations against the appellant are grave
and indicate that the appellant had complete knowledge that he was
working at the behest of the terrorist organization Hizb-ul-Mujahideen
and cooperated with it in receiving the proceeds of terrorism.
ANALYSIS AND CONCLUSION
Signature Not Verified
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By:RASHIM KAPOOR
Signing Date:08.08.2025
17:39:46
108. We have already dealt with the submissions advanced on behalf
of the appellant concerning the alleged delay in the investigation, and
the position of law with respect to the statutory embargo contained
under Section 43D of the UAPA. These have been duly considered in
the foregoing analysis and, therefore, do not merit further elaboration
at this stage.
109. Apart from the above, we have carefully considered the material
placed on record as well as the submissions advanced on behalf of
both parties. Relevantly, it appears from the record that the nature of
allegations levelled against the present appellant is graver than those
attributed to the accused A-8.
110. In the present case, the prosecution has ascribed the following
role to the appellant :
i. That the appellant had entered into a conspiracy to raise and
collect funds from A-6. During the period between 2008 and
2014, he received terror funds amounting to a total of Rs.
4,40,850/- in nine installments, eight times from GPO,
Srinagar, and once from Sanatnagar, Budgam, through
Western Union Money Transfer Service. The said amounts
include Rs. 50,000/- on 16.09.2008, Rs. 50,000/- on
31.01.2011, Rs. 49,900/- on 17.09.2011, Rs. 49,950/- on
14.10.2011, Rs. 50,000/- on 02.01.2012, Rs. 50,000/- on
22.02.2012, Rs. 49,000/- on 19.11.2013, Rs. 47,000/- on
13.05.2014, and Rs. 45,000/- on 30.09.2014.
Signature Not Verified
Digitally Signed CRL.A. 262/2021 & CRL.A. 1023/2024 Page 43 of 47
By:RASHIM KAPOOR
Signing Date:08.08.2025
17:39:46
ii. In the year 2011, there were three telephonic
communications between A-6 and the appellant.
iii. A search conducted at the appellant’s residence led to the
seizure of several electronic devices, including a laptop,
mobile phones, SIM cards, and SD cards, along with certain
documents purportedly containing incriminating material,
including diaries and photographs.
iv. Forensic examination of the seized devices revealed that the
appellant was in telephonic and online communication with
Nazir Ahmed Qureshi, a key hawala operator and fundraiser
for Hizb-ul-Mujahideen, and his sons.
v. The appellant had several contacts saved on his mobile
device, regarding which he gave evasive responses in his
disclosure statement, claiming that apart from 2-3 numbers,
he does not remember anything about the remaining
numbers.
vi. Certain messages extracted from the Facebook account on
the appellant’s mobile phone were alleged to be of a serious
nature.
vii. The appellant’s web browsing history, containing 937 items,
included one item that the prosecution has claimed to be of a
suspicious nature.
viii. During his visit to Dubai, the appellant had met Nazir
Ahmed Qureshi in person.
Signature Not Verified
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By:RASHIM KAPOOR
Signing Date:08.08.2025
17:39:46
ix. The appellant had travelled to Dubai on a passport in which
his father’s name was recorded differently. In his disclosure
statement (D-141), the appellant stated that he had no
knowledge of who had arranged the said passport and
further claimed that he had destroyed it in the year 2008.
x. Several handwritten diaries of the appellant indicate that he
was in contact with his father, and the contents of the diaries
do not merely record domestic expenses and expenditures,
as claimed by the appellant in his disclosure statement.
111. The learned ASG had submitted that a perusal of the diaries
recovered from the appellant reveals that the appellant was
sympathetic towards various terrorists who were killed in different
operations.
112. The learned counsel for the appellant, while seeking bail,
emphasized the appellant’s prolonged incarceration, submitting that he
has been in custody for a period of 7 years and 4 months, which is
violative of his right to liberty under Article 21 of the Constitution of
India, and therefore, he is entitled to be enlarged on regular bail.
113. Undisputedly, the appellant has been in custody since the date
of his arrest, that is, 30.08.2018, and is facing trial under Sections 13,
17, 18, 20, 21, 38 & 40 of the UAPA. The charges have been framed,
and the case is presently at the stage of recording of evidence of the
prosecution witnesses. The learned ASG had submitted that the
prosecution had made earnest efforts to fast-track the trial and intends
to prune the list of witnesses by deleting as many as 30 witnesses.
Signature Not Verified
Digitally Signed CRL.A. 262/2021 & CRL.A. 1023/2024 Page 45 of 47
By:RASHIM KAPOOR
Signing Date:08.08.2025
17:39:46
114. This Court is conscious of the fact that the appellant, being an
undertrial, has a right to a speedy trial. At the same time, statements of
protected witnesses is being recorded before the Special Court. This
Court cannot ignore the larger conspiracy brought forth by the
prosecution, which poses a threat to the unity, integrity, and security
of the Nation. The prosecution has highlighted the use of hawala
channels to route terror funds into Jammu and Kashmir, and the
appellant is allegedly part of this network. The nature of the
allegations and the material placed on record prima facie establish the
appellant’s involvement in this conspiracy and his direct contact with
known members of the proscribed terrorist outfit. He is alleged to
have received money from co-accused A-6, knowing that the funds
would be used to further terrorist activities.
115. Moreover, the possibility of the appellant being a flight risk
cannot be ruled out, especially in light of the allegation that he had
earlier travelled on a passport with a falsified parental identity and
later destroyed the document. There exists a real likelihood of his
tampering with evidence and influencing witnesses.
116. We have also perused the decisions relied upon by the learned
counsel for the appellant and find that those decisions do not come to
the aid of the appellant, as those decisions are based on their own
peculiar facts and circumstances of the case, thereby not being
applicable to the facts of the present case.
Signature Not Verified
Digitally Signed CRL.A. 262/2021 & CRL.A. 1023/2024 Page 46 of 47
By:RASHIM KAPOOR
Signing Date:08.08.2025
17:39:46
117. In view of the entire conspectus of facts and circumstances, we
are not inclined to release the appellant on bail. Accordingly, the
present appeal is dismissed.
118. The pending applications, if any, are also accordingly
dismissed.
119. There shall be no order as to costs.
SHALINDER KAUR, J
NAVIN CHAWLA, J
AUGUST 08, 2025/sk
Signature Not Verified
Digitally Signed CRL.A. 262/2021 & CRL.A. 1023/2024 Page 47 of 47
By:RASHIM KAPOOR
Signing Date:08.08.2025
17:39:46
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