CRL.A./1264/2018 of GHULAM MOHD. BHAT Vs NATIONAL INVESTIGATING AGENCY

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On : 11.07.2019Judgment Pronounced On : 02.08.2019

CRL.A.1264/2018

GHULAM MOHD. BHAT

..... Appellant

versus

NATIONAL INVESTIGATING AGENCY

..... Respondent

Advocates who appeared in this case:For the Appellant:Mr. Manu Sharma and Ms. Ridhima Mandhar, AdvocatesFor the Respondent :Mr. Amit Sharma, Special Public Prosecutor, NIA with Mr.Ahmed Zaid, Advocate

CORAM:HON'BLE MR. JUSTICE SIDDHARTH MRIDULHON'BLE MR. JUSTICE BRIJESH SETHI

J U M N T

SIDDHARTH MRIDUL, J

1.The present appeal under Section 21(4) of the NationalInvestigating Agency Act, 2008 (hereinafter referred to as ‘the NIAAct’) read with Section 439 of the Code of Criminal Procedure, 1973(hereinafter referred to as ‘the Cr.P.C.’) assails the order dated26.11.2018 passed by the District & Sessions Judge, Special Judge

(NIA), Patiala House Courts, New Delhi, in case arising out of RC-06/2011/NIA/DLI, registered by the NIA under Sections 13,17,18 and20 of the Unlawful Activities (Prevention) Act, 1967, (hereinafterreferred to as ‘UA(P) Act’), whereby the third bail applicationinstituted on behalf of the appellant came to be dismissed.

2.The facts as are relevant for the adjudication of the presentappeal are briefly encapsulated as follows:-

(a)It is the case of the prosecution that, in the month ofDecember,2010,theDelhiPolicereceivedaninformation that two cell phones bearing No.[REDACTED]and923335000846werebeingusedforHawalatransactions.December,2010,theDelhiPolicereceivedaninformation that two cell phones bearing No.[REDACTED]and923335000846werebeingusedforHawalatransactions.

(b)It is further the case of the prosecution that, case bearingFIR No.4/2011 was registered at Police Station-SpecialCell, Lodhi Colony on 16.01.2011 under Section 120-Bof the Indian Penal Code, 1860 (hereinafter referred to as‘the IPC’) read with Section 17 of the UnlawfulActivities (Prevention) Act, 1967 (hereinafter referred toas ‘the UA(P) Act’).Thereafter, the investigation wastransferred to National Investigating Agency (hereinafterFIR No.4/2011 was registered at Police Station-SpecialCell, Lodhi Colony on 16.01.2011 under Section 120-Bof the Indian Penal Code, 1860 (hereinafter referred to as‘the IPC’) read with Section 17 of the UnlawfulActivities (Prevention) Act, 1967 (hereinafter referred toas ‘the UA(P) Act’).Thereafter, the investigation wastransferred to National Investigating Agency (hereinafter

referred to as ‘NIA’) and it registered the case on24.04.2011.

(c)The NIA submitted its charge sheet before the SpecialCourt on 20.07.2011 indicting four persons, including theappellant herein.Court on 20.07.2011 indicting four persons, including theappellant herein.

(d)Itisallegedinthechargesheetthat,onthe

aforementioned information, certain phone numbers were

put under surveillance and on the basis of the information

collected from the surveillance, it came to light that, one

Maqbool Pandit, who was member of banned outfit,was sending huge amounts of funds to the secessionistswas sending huge amounts of funds to the secessionists

and terrorists based in Jammu and Kashmir via Delhi.

(e)It is further alleged that on 22.01.2011, on the basis of the

reliable information, joint team of the Delhi Police and

Jammu and Kashmir Police, laid trap at Bemina Bypass

Chowk, Srinagar, to apprehend the accused persons withthe illegal money.the illegal money.

(f)It is further alleged that, at around 10.30 a.m. whiteMaruti Car bearing No.JK 09 2942 came from the Bypassroad and stopped near the water tank, adjacent to park.Maruti Car bearing No.JK 09 2942 came from the Bypassroad and stopped near the water tank, adjacent to park.

It is further alleged that two people namely, GhulamJeelani Liloo @ Salim @ Ghulam Jeelani Sofi (A-3) andFarooq Ahmed Dagga @ Rahi (A-4) stepped out of thecar and waited.

(g)It is further alleged that, in the meanwhile the appellant,Ghulam Mohd. Bhat (A-1), came from the same side andstarted talking to them. It is further alleged that at thattime the informer identified the above said three persons.Ghulam Mohd. Bhat (A-1), came from the same side andstarted talking to them. It is further alleged that at thattime the informer identified the above said three persons.

(h)It is further alleged that, the persons who had come in thecar (A-3 and A-4) took out red and yellow bag from thecar, opened it and showed it to the person, who had comeon foot i.e. Ghulam Mohd. Bhat, the appellant herein.The team members then approached the said threepersons and apprehended them.car (A-3 and A-4) took out red and yellow bag from thecar, opened it and showed it to the person, who had comeon foot i.e. Ghulam Mohd. Bhat, the appellant herein.The team members then approached the said threepersons and apprehended them.

(i)It is further alleged that, from A-1, Rs.20 lakhs, cellphones bearing No.88039112274 and [REDACTED] and aslip containing certain phone numbers were recovered. Itis also alleged that, from the remaining two accusedpersons also certain recoveries were made. It is furtheralleged that, the appellant herein, was produced beforephones bearing No.88039112274 and [REDACTED] and aslip containing certain phone numbers were recovered. Itis also alleged that, from the remaining two accusedpersons also certain recoveries were made. It is furtheralleged that, the appellant herein, was produced before

the Court of learned Chief Judicial Magistrate, Srinagar

and one day’s transit remand was granted to the DelhiPolice.

(j)The case of the prosecution is that, the appellant while

being apprehended, tried to flee from the spot and in theprocess, he received some injuries after which he wasprocess, he received some injuries after which he was

shifted to the hospital. That further, two seizure memoswere allegedly prepared, with respect to the recoveriesallegedly made from the appellant.were allegedly prepared, with respect to the recoveriesallegedly made from the appellant.

(k)Thereafter, the NIA also filed supplementary chargesheet on 22.12.2011 in the court, indicting Mohd.Maqbool Pandit and Aijaz Ahmed Bhat as accused No.5sheet on 22.12.2011 in the court, indicting Mohd.Maqbool Pandit and Aijaz Ahmed Bhat as accused No.5

and 6 respectively, wherein it was alleged that theaforementioned have illegally raised funds in SaudiArabia and Pakistan and sent it to India through Hawalachannels to Mohd. Sidiq Ganai @ Lala, to promoteterrorist activities in Jammu and Kashmir, India.aforementioned have illegally raised funds in SaudiArabia and Pakistan and sent it to India through Hawalachannels to Mohd. Sidiq Ganai @ Lala, to promoteterrorist activities in Jammu and Kashmir, India.

(l)The District & Sessions Judge, Special Judge (NIA) videthe order dated 03.03.2012 was pleased to frame chargesagainst the appellant herein under Sections 13, 17, 18 andthe order dated 03.03.2012 was pleased to frame chargesagainst the appellant herein under Sections 13, 17, 18 and

20 of the UA(P) Act.

(m)The first bail application instituted on behalf of theappellant was dismissed by the learned Special Judge(NIA) vide order dated 18.02.2012, observing therein thatthe prosecution has been able to show that there is primafacie evidence to substantiate the accusations against theappellant.appellant was dismissed by the learned Special Judge(NIA) vide order dated 18.02.2012, observing therein thatthe prosecution has been able to show that there is primafacie evidence to substantiate the accusations against theappellant.

(n)The appellant, after 25 witnesses had been examined,filed the second application for bail dated 08.05.2015,pleading therein that, he had been falsely implicated;false allegations of recovery of money had been leveledagainst him; no independent witness was joined; neitherhas any specific act of terrorism been alleged against himnor has any material been placed on record to connecthim to any terrorist act; and that the testimony of thewitnesses examined thus far shows that he has beenfalsely implicated. The second bail application was alsopredicated on the submission that although PW-1 testifiedthat the appellant suffered injuries while trying to evadeapprehension, but his testimony shows that the latter wasfiled the second application for bail dated 08.05.2015,pleading therein that, he had been falsely implicated;false allegations of recovery of money had been leveledagainst him; no independent witness was joined; neitherhas any specific act of terrorism been alleged against himnor has any material been placed on record to connecthim to any terrorist act; and that the testimony of thewitnesses examined thus far shows that he has beenfalsely implicated. The second bail application was alsopredicated on the submission that although PW-1 testifiedthat the appellant suffered injuries while trying to evadeapprehension, but his testimony shows that the latter was

kept at the spot while his search was conducted.

(o)The second bail application lastly mentioned that the

appellant is 60 years old and suffering from various

ailments like hypothyroidism, gout, arthritis, prostrate

enlargement, respiratory allergy/asthma, spinal problemsand also diagnosed with T2 Hyperintense Lesions andHemangioma etc.and also diagnosed with T2 Hyperintense Lesions andHemangioma etc.

(p)The learned Special Judge (NIA), after considering thesubmissions made on behalf of the appellant, dismissedhis second bail application vide order dated 05.11.2015.submissions made on behalf of the appellant, dismissedhis second bail application vide order dated 05.11.2015.

(q)Theappellantassailedtheaforesaidorderdated05.11.2015 by instituting Criminal Appeal No.1251/201505.11.2015 by instituting Criminal Appeal No.1251/2015

before this Court.

(r)The High Court vide its order dated 07.02.2018, disposed

of the said Criminal Appeal No.1251/2015 with thefollowing order:-following order:-

“This appeal is pending since 2015against the order rejecting grant of bail. Sincethen the trial has progressed.

In our view, it would be appropriate thatthe appellant moves fresh application beforethe Trial Court to seek bail, since the TrialCourt is seized of the matter and would be ableto better appreciate the contentions of the

parties in relation to grant of bail.

Learnedcounselfortheappellant,therefore,seeksleavetomoveafreshapplication before the Trial Court. Liberty tomove fresh application to seek bail is granted.In case such an application is moved, the sameshall be considered by the Trial Court on itsown merits on an early date convenient to thecourt.

The appeal stands disposed of.”

(s)Subsequent thereto, the appellant filed third bail

application, which has been dismissed by the learnedSpecial Judge (NIA), vide order dated 26.11.2018,impugned in the present appeal.

3.Mr. Manu Sharma, learned counsel appearing on behalf of theappellant has reiterated the submissions made on behalf of theappellant before the learned Special Judge (NIA), as detailedhereinabove, before us as well. Mr. Manu Sharma, learned counselhas in this behalf, invited our attention to the testimony of PW-1 tourge that, same suffers from material contradictions and is bereft ofany material to show that there are reasonable grounds for believingthat the accusations against him are “prima facie true”.

4.It is contended on behalf of the appellant that, Section 43D(5)of UA(P) Act does not completely bar the grant of bail and thedecision of the Hon’ble Supreme Court inRanjit Singh Brahmjeet

Singh Sharma vs. State of Maharashtra & Anr.reported as (2005) 5SCC 294 has been pressed into service, in order to buttress thecontention of the appellant.

5.Per contra, Mr. Amit Sharma, learned counsel appearing onbehalf of the NIAhas invited our attention to the decision of the

Hon’ble Supreme Court inNational Investigation Agency vs. ZahoorAhmad Shah Watali reported as (2019) 5 SCC 1 to urge that, thematerial/evidence collated by them in reference to the accusationsagainst the appellant in the first information report, must prevail untilcontradicted and overcome or disproved by other evidence; and thatthe material against the appellant in the present case and on the face ofit, shows his complicity in the commission of the stated offences andthat detailed examination by the court of the merits and demerits ofthe offence is not required to be done at this stage.

6.In Zahoor Ahmad Shah Watali (supra), the Supreme Court

was pleased to held as follows:

“22. When it comes to offences punishable underspecial enactments, such as the 1967 Act, somethingmore is required to be kept in mind in view of thespecial provisions contained in Section 43-D of the1967 Act, inserted by Act 35 of 2008 w.e.f. 31-12-2008. Sub-sections (5), (6) and (7) thereof read thus:“43-D. Modified application of certainprovisions of the Code.—(1)-(4)***

(5) Notwithstanding anything containedin the Code, no person accused of anoffence punishable under Chapters IVand VI of this Act shall, if in custody, bereleased on bail or on his own bondunless the Public Prosecutor has beengiven an opportunity of being heard onthe application for such release:

Provided that such accused person shallnot be released on bail or on his ownbond if the Court, on perusal of thecase diary or the report made underSection 173 of the Code is of the opinionthat there are reasonable grounds forbelieving that the accusation against suchperson is prima facie true.

(6) The restrictions on granting of bailspecified in sub-section (5) is in additionto the restrictions under the Code or anyother law for the time being in force ongranting of bail.

(7) Notwithstanding anything containedin sub-sections (5) and (6), no bail shallbe granted to person accused of anoffence punishable under this Act, if heis not an Indian citizen and has enteredthe country unauthorisedly or illegallyexcept in very exceptional circumstancesandforreasonstoberecordedinwriting.”

23. By virtue of the proviso to sub-section (5), it is theduty of the Court to be satisfied that there arereasonable grounds for believing that the accusationagainst the accused is prima facie true or otherwise.Our attention was invited to the decisions of thisCourt, which has had an occasion to deal with similarspecialprovisionsinTADAand MCOCA.Theprinciple underlying those decisions may have somebearing while considering the prayer for bail inrelation to the offences under the 1967 Act as well.Notably,underthespecialenactmentssuchasTADA, MCOCA andtheNarcoticDrugsand

Psychotropic Substances Act, 1985, the Court isrequired to record its opinion that there are reasonablegrounds for believing that the accused is “not guilty”of the alleged offence. There is degree of differencebetween the satisfaction to be recorded by the Courtthat there are reasonable grounds for believing that theaccused is “not guilty” of such offence and thesatisfaction to be recorded for the purposes of the 1967Act that there are reasonable grounds for believing thatthe accusation against such person is “prima facie”true. By its very nature, the expression “primafacie true” would mean that the materials/evidencecollated by the investigating agency in reference to theaccusation against the accused concerned in the firstinformation report, must prevail until contradicted andovercome or disproved by other evidence, and on theface of it, shows the complicity of such accused in thecommission of the stated offence. It must be good andsufficient on its face to establish given fact or thechain of facts constituting the stated offence, unlessrebutted or contradicted. In one sense, the degree ofsatisfaction is lighter when the Court has to opine thatthe accusation is “prima facie true”, as compared tothe opinion of the accused “not guilty” of such offenceas required under the other special enactments. In anycase, the degree of satisfaction to be recorded by theCourt for opining that there are reasonable grounds forbelieving that the accusation against the accusedis prima facie true, is lighter than the degree ofsatisfaction to be recorded for considering dischargeapplication or framing of charges in relation tooffences under the 1967 Act. Nevertheless, we maytakeguidancefromtheexpositionin RanjitsingBrahmajeetsingSharma [RanjitsingBrahmajeetsingSharmav. State of Maharashtra, (2005) 5 SCC 294 :2005 SCC (Cri) 1057] , wherein three-Judge Benchof this Court was called upon to consider the scope ofpower of the Court to grant bail. In paras 36 to 38, theCourt observed thus: (SCC pp. 316-17)

“36. Does this statute require that beforea person is released on bail, the court,albeit prima facie, must come to theconclusion that he is not guilty of such

offence? Is it necessary for the court torecord such finding? Would there beany machinery available to the court toascertainthatoncetheaccusedisenlarged on bail, he would not commitany offence whatsoever?

37. Such findings are required to berecorded only for the purpose of arrivingat an objective finding on the basis ofmaterials on record only for grant of bailand for no other purpose.

38. We are furthermore of the opinionthat the restrictions on the power of thecourt to grant bail should not be pushedtoo far. If the court, having regard to thematerials brought on record, is satisfiedthat in all probability he may not beultimately convicted, an order grantingbail may be passed. The satisfaction ofthe court as regards his likelihood of notcommitting an offence while on bailmust be construed to mean an offenceunder the Act and not any offencewhatsoever be it minor or majoroffence.…Whatwouldfurtherbenecessary on the part of the court is tosee the culpability of the accused and hisinvolvement in the commission of anorganisedcrimeeitherdirectlyorindirectly. The court at the time ofconsidering the application for grant ofbail shall consider the question from theangle as to whether he was possessed ofthe requisite mens rea.”

And again in paras 44 to 48, the Court observed: (SCCpp. 318-20)

“44. The wording of Section 21(4), inouropinion,doesnotleadtotheconclusion that the court must arrive at apositive finding that the applicant forbail has not committed an offence underthe Act. If such construction is placed,

the court intending to grant bail mustarrive at finding that the applicant hasnot committed such an offence. In suchan event, it will be impossible for theprosecution to obtain judgment ofconviction of the applicant. Such cannotbetheintentionofthelegislature.Section 21(4) of MCOCA, therefore, mustbe construed reasonably. It must be soconstruedthatthecourtisabletomaintain delicate balance between ajudgment of acquittal and conviction andan order granting bail much beforecommencement of trial. Similarly, thecourt will be required to record findingas to the possibility of his committing acrime after grant of bail. However, suchan offence in futuro must be an offenceunder the Act and not any other offence.Since it is difficult to predict the futureconduct of an accused, the court mustnecessarily consider this aspect of thematter having regard to the antecedentsof the accused, his propensities and thenature and manner in which he is allegedto have committed the offence.

45. It is, furthermore, trite that for thepurpose of considering an application forgrant of bail, although detailed reasonsare not necessary to be assigned, theorder granting bail must demonstrateapplication of mind at least in seriouscases as to why the applicant has beengranted or denied the privilege of bail.46. The duty of the court at this stage isnot to weigh the evidence meticulouslybut to arrive at finding on the basis ofbroadprobabilities.However,whiledealingwithaspecialstatutelike MCOCAhavingregardtotheprovisions contained in sub-section (4)of Section 21 of the Act, the court mayhave to probe into the matter deeper so

as to enable it to arrive at finding thatthematerialscollectedagainsttheaccused during the investigation may notjustify judgment of conviction. Thefindings recorded by the court whilegranting or refusing bail undoubtedlywould be tentative in nature, which maynot have any bearing on the merit of thecase and the trial court would, thus, befree to decide the case on the basis ofevidence adduced at the trial, without inany manner being prejudiced thereby.47. In Kalyan Chandra Sarkar v. RajeshRanjan [KalyanChandraSarkar v. Rajesh Ranjan, (2004) 7 SCC528 : 2004 SCC (Cri) 1977] this Courtobserved: (SCC pp. 537-38, para 18)

‘18.Weagreethataconclusivefindinginregard to the points urgedby both the sides is notexpectedofthecourtconsideringabailapplication.Stilloneshouldnotforget,asobservedbythisCourtin Puran v. Rambilas [Puran v. Rambilas,(2001)6SCC 338 : 2001 SCC (Cri)1124] : (SCC p. 344, para8)“8. … Giving reasons isdifferent from discussingmerits or demerits. At thestage of granting bail adetailedexaminationofevidenceandelaboratedocumentationofthemerits of the case has notto be undertaken. … Thatdid not mean that whilstgranting bail some reasons

for prima facie concludingwhy bail was being granteddidnothavetobeindicated.”We respectfully agree withthe above dictum of thisCourt. We also feel thatsuch expression of primafacie reasons for grantingbail is requirement of lawin cases where such ordersonbailapplicationareappealable,moresobecause of the fact that theappellate court has everyright to know the basis forgrantingthebail.Therefore, we are not inagreementwiththeargument addressed by thelearnedcounselfortheaccusedthattheHighCourt was not expectedeven to indicate primafacie finding on all pointsurgedbeforeitwhilegranting bail, more so inthe background of the factsof this case where on factsit is established that largenumber of witnesses whowere examined after therespondentwasenlargedon bail had turned hostileand there are complaintsmade to the court as to thethreats administered by therespondentorhissupporters to witnesses inthecase.Insuchcircumstances,thecourtwas duty-bound to apply

its mind to the allegationsputforthbytheinvestigatingagency andought to have given at leasta prima facie finding inregard to these allegationsbecause they go to the veryroot of the right of theaccused to seek bail. Thenon-consideration of thesevitalfactsastotheallegationsofthreatorinducement made to thewitnessesbytherespondentduringtheperiod he was on bail hasvitiatedtheconclusionsarrivedatbytheHighCourt while granting bailtotherespondent.Theother ground apart from thegroundofincarcerationwhich appealed to the HighCourt to grant bail was thefact that large number ofwitnesses are yet to beexamined and there is nolikelihoodofthetrialcoming to an end in thenearfuture.Asstatedhereinabove,thisgroundon the facts of this case isalso not sufficient eitherindividuallyorcoupledwiththeperiodofincarceration to release therespondent on bail becauseof the serious allegations oftamperingwiththewitnesses made against therespondent.’

48.In JayendraSaraswathiSwamigal v. StateofT.N. [JayendraSaraswathi Swamigal v. State of T.N.,(2005) 2 SCC 13 : 2005 SCC (Cri) 481]this Court observed: (SCC pp. 21-22,para 16)‘16. … The considerationswhich normally weigh withthe court in granting bail innon-bailable offences havebeenexplainedbythisCourtin State v. JagjitSingh [State v. Jagjit Singh,(1962) 3 SCR 622 : AIR1962 SC 253 : (1962) 1 CriLJ215]and GurcharanSingh v. State(UTofDelhi) [GurcharanSingh v. State(UTofDelhi), (1978) 1 SCC 118 :1978 SCC (Cri) 41] andbasically they are — thenature and seriousness ofthe offence; the character ofthe evidence; circumstanceswhich are peculiar to theaccused;areasonablepossibility of the presenceof the accused not beingsecuredatthetrial;reasonable apprehension ofwitnessesbeingtamperedwith; the larger interest ofthe public or the State andother similar factors whichmay be relevant in the factsand circumstances of thecase.’”24. priori, the exercise to be undertaken by the Courtat this stage—of giving reasons for grant or non-grantof bail—is markedly different from discussing meritsor demerits of the evidence. The elaborate examinationor dissection of the evidence is not required to be done

at this stage. The Court is merely expected to record afinding on the basis of broad probabilities regardingthe involvement of the accused in the commission ofthe stated offence or otherwise.

25. From the analysis of the impugned judgment[ZahoorAhmadShahWatali v. NIA,2018SCCOnLine Del 11185] , it appears to us that the HighCourt has ventured into an area of examining themerits and demerits of the evidence. For, it noted thatthe evidence in the form of statements of witnessesunder Section 161 are not admissible. Further, thedocuments pressed into service by the investigatingagency were not admissible in evidence. It also notedthat it was unlikely that the document had beenrecovered from the residence of Ghulam MohammadBhatt till 16-8-2017(para 61 oftheimpugnedjudgment). Similarly, the approach of the High CourtincompletelydiscardingthestatementsoftheprotectedwitnessesrecordedunderSection164Cr.P.C., on the specious ground that the same was keptin sealed cover and was not even perused by theDesignated Court and also because reference to suchstatements having been recorded was not found in thecharge-sheet already filed against the respondent is, inour opinion, in complete disregard of the duty of theCourt to record its opinion that the accusation madeagainst the accused concerned is prima facie true orotherwise. That opinion must be reached by the Courtnot only in reference to the accusation in the FIR butalso in reference to the contents of the case diary andincluding the charge-sheet (report under Section 173CrPC) and other material gathered by the investigatingagency during investigation.

26. Be it noted that the special provision, Section 43-Dof the 1967 Act, applies right from the stage ofregistration of FIR for the offences under Chapters IVand VI of the 1967 Act until the conclusion of the trialthereof. To wit, soon after the arrest of the accused onthe basis of the FIR registered against him, but beforefiling of the charge-sheet by the investigating agency;after filing of the first charge-sheet and before thefiling of the supplementary or final charge-sheetconsequent to further investigation under Section

173(8) CrPC, until framing of the charges or afterframing of the charges by the Court and recording ofevidence of key witnesses, etc. However, once chargesare framed, it would be safe to assume that verystrong suspicion was founded upon the materialsbefore the Court, which prompted the Court to form apresumptive opinion as to the existence of the factualingredients constituting the offence alleged against theaccused, to justify the framing of charge. In thatsituation, the accused may have to undertake anarduous task to satisfy the Court that despite theframing of charge, the materials presented along withthe charge-sheet (report under Section 173 CrPC), donot make out reasonable grounds for believing that theaccusation against him is prima facie true. Similaropinion is required to be formed by the Court whilstconsidering the prayer for bail, made after filing of thefirst report made under Section 173 of the Code, as inthe present case.27. For that, the totality of the material gathered by theinvestigating agency and presented along with thereport and including the case diary, is required to bereckoned and not by analysing individual pieces ofevidence or circumstance. In any case, the question ofdiscarding the document at this stage, on the ground ofbeing inadmissible in evidence, is not permissible. For,the issue of admissibility of the document/evidencewould be matter for trial. The Court must look at thecontents of the document and take such document intoaccount as it is.”investigating agency and presented along with thereport and including the case diary, is required to bereckoned and not by analysing individual pieces ofevidence or circumstance. In any case, the question ofdiscarding the document at this stage, on the ground ofbeing inadmissible in evidence, is not permissible. For,the issue of admissibility of the document/evidencewould be matter for trial. The Court must look at thecontents of the document and take such document intoaccount as it is.”

7.In view of the foregoing observations, the determination to bemade by this court at this stage is within very narrow compass. Whatthe court is required to examine is the issue, whether there arereasonable grounds for believing that the accusations made against theappellant are “prima facie true”.

8.In this behalf we must observe at the outset that, it is anadmitted position that the co-accused, A-3 (Ghulam Jeelani Liloo) andA-4 (Farooq Ahmed Dagga), have since pleaded guilty to the chargesframed against them and stand convicted vide judgment and order onsentence dated 20.05.2019 and 04.06.2018 respectively.Further aperusal of the order passed by the Special Court, NIA as well as thematerial on record, would prima facie show the following:-

(i)That the appellant during the relevant period made andreceived calls to and from Farooq Ahmed Dagga (A-4)and Aijaz Ahmad Bhat (A-6) on the mobile phoneNo.[REDACTED] seized from him vide seizure memo D-10 (Ex.PW1/B) and CDR D-72 in relation thereto.received calls to and from Farooq Ahmed Dagga (A-4)and Aijaz Ahmad Bhat (A-6) on the mobile phoneNo.[REDACTED] seized from him vide seizure memo D-10 (Ex.PW1/B) and CDR D-72 in relation thereto.

(ii)That perusal of CDR D-72//87 shows that, calls werereceived by the appellant on the aforementioned mobilenumber 966548948415 allegedly belonging to A-6 AijazAhmad Bhat (absconder) on 20.01.2011.received by the appellant on the aforementioned mobilenumber 966548948415 allegedly belonging to A-6 AijazAhmad Bhat (absconder) on 20.01.2011.

(iii)That CDR No.D72/104 also shows receipt of calls by theappellant from Mobile No.[REDACTED] seized from A-4Farooq Ahmed Dagga vide seizure memo D-13.Theappellant from Mobile No.[REDACTED] seized from A-4Farooq Ahmed Dagga vide seizure memo D-13.The

transcript (D44/4) of the aforesaid conversation betweenthe appellant and A-6 alludes to ‘Dukan Khula Rakho’,which has been testified by PW-27 in his deposition as acode word for an unlawful act.

(iv)That vide forensic voice examination report (D-46) dated28.06.2011, Ex.PW-11/B, which has been opined by theexpert that the voice in the aforesaid conversation is thatof the appellant.28.06.2011, Ex.PW-11/B, which has been opined by theexpert that the voice in the aforesaid conversation is thatof the appellant.

(v)That the NIA has alleged that the appellant is habitualoffender of terror financing cases and has been charged asan accused in case FIR No.252/07, under Sections17,18,21,24,40ofUA(P)ActatPoliceStation-Udhampur,JammuandKashmir,India;andFIRNo.95/2007, under Sections 10,17,18,20 & 21 of UA(P)Act and Section 120-B, 121-A RPC, Police Station-Ramban, Jammu and Kashmir.offender of terror financing cases and has been charged asan accused in case FIR No.252/07, under Sections17,18,21,24,40ofUA(P)ActatPoliceStation-Udhampur,JammuandKashmir,India;andFIRNo.95/2007, under Sections 10,17,18,20 & 21 of UA(P)Act and Section 120-B, 121-A RPC, Police Station-Ramban, Jammu and Kashmir.

9.In our considered view, the relevant provision of the UA(P)

Act, in relation to the grant or release on bail to an accused person, isenunciated as non-obstante clause, which clearly and unequivocallypostulates that, if the court is of the opinion that, there are reasonable

grounds for believing that the accusations against such person areprima facie true, he shall not to be released on bail. (Ref: Syed Mohd.Zishan Ali vs. The State (NCT of Delhi, CRL.A.923/2018, decidedby this Court on 29.04.2019)

10.Further, as eloquently observed by the Hon’ble Supreme Courtin Zahoor Ahmad Shah Watali (supra) that, “a priori, the exercise tobe undertaken by the Court at this stage – of giving reasons for grantof non-grant of bail – is markedly different from discussing merits ordemerits of the evidence. The elaborate examination or dissection ofthe evidence is not required to be done at this stage. The Court ismerely expected to record finding on the basis of broad probabilitiesregarding the involvement of the accused in the commission of thestated offence or otherwise”. It has also been enunciated that, “oncecharges are framed, it would be safe to assume that very strongsuspicion was founded upon the materials before the Court, whichprompted the Court to form presumptive opinion as to the existenceof the factual ingredients constituting the offence alleged against theaccused, to justify the framing of charge”. (Ref: Zahoor Ahmad ShahWatali (supra), paragraphs 24 and 26)

11.In view of the foregoing, we find no warrant to interfere with

the impugned order dated 26.11.2018 rendered by the District &Sessions Judge, Special Judge (NIA), Patiala House Courts, NewDelhi. The appeal being devoid of merits, is consequently dismissed.

SIDDHARTH MRIDUL(JUDGE)

AUGUST 02, 2019dn

BRIJESH SETHI(JUDGE)