NATIONAL INVESTIGATION AGENCY versus ZAHOOR AHMAD SHAH WATALI

[2019] 5 S.C.R. 1060

[2019] 5 S.C.R.

NATIONAL INVESTIGATION AGENCY

ZAHOOR AHMAD SHAH WATALI

(Criminal Appeal No.578 of 2019)

APRIL 02, 2019

[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Unlawful Activities (Prevention) Act, 1967 – Chapters IV& VI – ss.13, 16, 17, 18, 20 and 38-40 – Respondent was named asAccused No.10 in the FIR registered for offences punishableCu/ss.120B, 121 and 121A of IPC and ss.13,16,17,18,20 and 38-40of the 1967 Act – Respondent filed application for bail before theDistrict and Sessions Judge, Special Court (NIA), New Delhi –Rejected – Order reversed by the High Court – On appeal, held:Elaborate examination or dissection of the evidence is not requiredDto be done at the stage of considering the prayer for bail – Courtis merely expected to record finding on the basis of broadprobabilities regarding involvement of the accused in thecommission of the stated offence or otherwise – High Courtventured into examining the merits and demerits of the evidence –Question of discarding the document at this stage, on the ground ofEbeing inadmissible in evidence, is not permissible – Issue ofadmissibility of the document/evidence would be matter for trial –Taking into account the totality of the report made u/s.173 of CrPC,the accompanying documents and the evidence already presentedto the Court, including the redacted statements of the protectedFwitnesses recorded u/s.164 of CrPC there are reasonable groundsto believe that the accusations made against the respondent areprima facie true – Role attributed to the respondent is that of beingpart of the larger conspiracy and to act as fund raiser and financeconduit – High Court erroneously proceeded on the premise thatthe charge-sheet makes no reference to any other criminal caseGagainst the respondent – High Court adopted an inappropriateapproach whilst considering the prayer for grant of bail – Orderpassed by the High Court granting bail to the respondent, reversed– Order passed by the Designated Court rejecting the applicationfor grant of bail made by the respondent, affirmed – Penal Code,H

1860 – ss.120B, 121 and 121A – Narcotic Drugs and PsychotropicSubstances Act, 1985 – Terrorist and Disruptive Activities(Prevention) Act, 1985 – Maharashtra Control of Organised CrimeAct, 1999 – Code of Criminal Procedure, 1973 – ss.161, 164 and173, 207 – Evidence Act, 1872 – s.34 – Bail .

Unlawful Activities (Prevention) Act, 1967 – s.43D –Application of – Held: s.43D applies right from the stage ofregistration of FIR for offences under Chapters IV and VI of the1967 Act until the conclusion of the trial thereof.

Unlawful Activities (Prevention) Act, 1967 – Proviso tos.43D(5) – Purport of – Discussed.

Bail – Grant of – Factors to be considered – Discussed.

Words & Phrases – “prima facie true”, in context of 1967 Act– Meaning of – Unlawful Activities (Prevention) Act, 1967.

Allowing the appeal, the Court

HELD: 1.1 Matters to be considered for deciding anapplication for bail (i) whether there is any prima facie orreasonable ground to believe that the accused had committedthe offence; (ii) nature and gravity of the charge; (iii) severity ofthe punishment in the event of conviction; (iv) danger of theaccused 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) reasonableapprehension of the witnesses being tampered with; and(viii) danger, of course, of justice being thwarted by grant of bail.When it comes to offences punishable under special enactments,such as the Unlawful Activities (Prevention) Act, 1967,something more is required to be kept in mind in view of thespecial provisions contained in Section 43D of the 1967 Act,inserted by Act 35 of 2008 w.e.f. 31[st] December, 2008. By virtueof the proviso to sub-section (5), it is the duty of the Court to besatisfied that there are reasonable grounds for believing that theaccusation against the accused is prima facie true or otherwise.Under the special enactments such as Terrorist and DisruptiveActivities (Prevention) Act, 1985 (TADA), Maharashtra Controlof Organised Crime Act, 1999 (MCOCA) and the Narcotic Drugs

Aand Psychotropic Substances Act, 1985, the Court is required torecord its opinion that there are reasonable grounds forbelieving that the accused is “not guilty” of the alleged offence.There is degree of difference between the satisfaction to berecorded by the Court that there are reasonable grounds forbelieving that the accused is “not guilty” of such offence and theBsatisfaction to be recorded for the purposes of the 1967 Act thatthere are reasonable grounds for believing that the accusationagainst such person is “prima facie” true. [Paras 15, 17][1087-E-G; 1088-A; F-G; 1089-A-B]

1.2 By its very nature, the expression “prima facie true”Cwould mean that the materials/evidence collated by theInvestigating Agency in reference to the accusation against theconcerned accused in the first information report, must prevailuntil contradicted and overcome or disproved by other evidence,and on the face of it, shows the complicity of such accused in theDcommission of the stated offence. It must be good and sufficienton its face to establish given fact or the chain of factsconstituting the stated offence, unless rebutted or contradicted.In one sense, the degree of satisfaction is lighter when the Courthas to opine that the accusation is “prima facie true”, ascompared to the opinion of accused “not guilty” of such offenceEas required under the other special enactments. In any case, thedegree of satisfaction to be recorded by the Court for opiningthat there are reasonable grounds for believing that theaccusation against the accused is prima facie true, is lighter thanthe degree of satisfaction to be recorded for considering aFdischarge application or framing of charges in relation to offencesunder the 1967 Act. The exercise to be undertaken by the Courtat this stage- of giving reasons for grant or non-grant of bail- ismarkedly different from discussing merits or demerits of theevidence. The elaborate examination or dissection of the

evidence is not required to be done at this stage. The Court isGmerely expected to record finding on the basis of broadprobabilities regarding the involvement of the accused in thecommission of the stated offence or otherwise. The High Courtventured into an area of examining the merits and demerits ofthe evidence. The approach of the High Court in completelyH

discarding the statements of the protected witnesses recordedunder Section 164 of Cr.P.C., on the specious ground that thesame was kept in sealed cover and was not even perused bythe Designated Court and also because reference to suchstatements having been recorded was not found in thecharge-sheet already filed against the respondent is in completedisregard of the duty of the Court to record its opinion that theaccusation made against the concerned accused is prima facietrue or otherwise. That opinion must be reached by the Courtnot only in reference to the accusation in the FIR but also inreference to the contents of the case diary and including thecharge-sheet (report under Section 173 of Cr.P.C.) and othermaterial gathered by the Investigating Agency duringinvestigation. The special provision, Section 43D of the 1967 Act,applies right from the stage of registration of FIR for offencesunder Chapters IV and VI of the 1967 Act until the conclusion ofthe trial thereof. Soon after the arrest of the accused on the basisof the FIR registered against him, but before filing of thecharge-sheet by the Investigating Agency; after filing of the firstcharge-sheet and before the filing of the supplementary or finalcharge-sheet consequent to further investigation under Section173(8) Cr.P.C., until framing of the charges or after framing ofthe charges by the Court and recording of evidence of keywitnesses etc. However, once charges are framed, it would besafe to assume that very strong suspicion was founded uponthe materials before the Court, which prompted the Court to forma presumptive opinion as to the existence of the factualingredients constituting the offence alleged against the accused,to justify the framing of charge. In that situation, the accusedmay have to undertake an arduous task to satisfy the court thatdespite the framing of charge, the materials presented along withthe charge-sheet (report under Section 173 of Cr.P.C.), do notmake out reasonable grounds for believing that the accusationagainst him is prima facie true. Similar opinion is required to beformed by the Court whilst considering the prayer for bail, madeafter filing of the first report made under Section 173 of the Code,as in the present case. For that, the totality of the materialgathered by the Investigating Agency and presented along with

DEF

Athe report and including the case diary, is required to bereckoned and not by analysing individual pieces of evidence orcircumstance. In any case, the question of discarding thedocument at this stage, on the ground of being inadmissible inevidence, is not permissible. For, the issue of admissibility of thedocument/evidence would be matter for trial. The Court mustBlook at the contents of the document and take such documentinto account as it is. [Paras 17-19][1088-B-E; 1092-C-H;1093-A-F]

1.3 In terms of Section 43D, it is the bounden duty of theCourt to peruse the case diary and/or the report made underCSection 173 of the Code and all other relevant material/evidenceproduced by the Investigating Agency, for recording its opinion.The issue regarding admissibility of the statements and efficacyof the certificates given by the competent authority, appended tothe redacted statements would be matter for trial and subject

Dto the evidence in reference to Section 463 of Cr.P.C.[Paras 21, 23][1101-E-; 1102-C]

1.4 Taking into account the totality of the report made underSection 173 of the Code and the accompanying documents andthe evidence/material already presented to the Court, includingEthe redacted statements of the protected witnesses recordedunder Section 164 of the Code, there are reasonable grounds tobelieve that the accusations made against the respondent areprima facie true. Further investigation is in progress. Thematerial produced by the Investigating Agency thus far (pendingfurther investigation) shows the linkage of the respondentF(Accused No.10) with A-3, A-4, A-5 and A-6 and, likewise,linkages between the respondent (Accused No.10) and A-3 toA-12, as revealed from the CDR analysis. The Chart shows theinter-linkages of the named accused inter se and Chart show-ing the inter-linkages of the named accused with others and theGfrequency of their interaction on phone during the relevantperiod. The charge against respondent is not limited to Section17 of the 1967 Act regarding raising funds for terrorist acts butalso in reference to Sections 13, 16, 18, 20, 38, 39 and 40 of the1967 Act. Section 13 is in Chapter II of the 1967 Act. Thespecial provisions regarding bail under Section 43D(5), however,Hare attracted in respect of the offences punishable under

Chapters IV and VI, such as Sections 16, 17, 18, 20, 38, 39 and40 of the 1967 Act. Sections 39 and 40 form part of Chapter VI,whereas other sections (except Section 13) form part of ChapterIV to which the subject bail provisions are applicable, mandatingthe recording of satisfaction by the Court that there arereasonable grounds for believing that the accusation against suchperson is prima facie true. The accusation against therespondent (Accused No.10) is that accused A-3 to A-10 are partof the All Parties Hurriyat Conference which calls itself apolitical front, whereas their agenda is to create an atmosphereconducive to the goal of cessation of J & K from the Union ofIndia. The role attributed to the respondent (Accused No.10) isthat of being part of the larger conspiracy and to act as fundraiser and finance conduit. Ample material has been collected toshow the linkages between the Hurriyat leaders of the J & Kand terrorists/terrorist organizations and their continuousactivities to wage war against Government of India.[Paras 24-28][1102-E-H; 1112-E-F; 1113-C-E]

1.5 The seizure memo described as document D-3/6, inrespect of search and seizure of articles/documents seized fromthe premises of the respondent (Accused No.10) dated 3[rd] June,2017, would unravel the activities of the respondent, includingregarding his financial deals. Another crucial document describedas D-3g/20 is contact diary seized from the respondent videMemo D-3, which contains the Pakistan National name andcontact “TS 0092425765022…26A” whose name figures indocument D-132(a)/23. The Code “0092” pertains to Pakistan.Another contact diary was seized from the respondent videMemo D-3, which, at page D-3h/28 contains the same name andcontact, namely, “TS 00923008459775/ 0092425765022”. Thedocuments D-3j to D-3j/5 also indicate the involvement of therespondent in terrorist activities, including that three cases ofTADA have been registered against him in the past andinvestigated and one case of J & K PSA, 1978. The High Courterroneously proceeded on the premise that the charge-sheetmakes no reference to any other criminal case against therespondent. Additionally, the charge-sheet is accompanied withdocuments D-9b and D-9c, which are photographs of ex-militant

AA-3 holding AK-47, seen with other terrorists. These photographswere seized from the residence of the said ex-militant on 3[rd] June,2017. The prosecution case is that the respondent (AccusedNo.10) was in constant touch with the said ex-militant A-3, asnoticed from the inter-linkage chart. That fact is backed by theCDR analysis report, also part of the charge-sheet. TheBcharge-sheet also contains document D-185/10, which is acontact list of accused A-5 retrieved through forensic analysis,having mobile numbers of persons associated with Hurriyat party;and of one ‘MCP’ who is none other than the First Secretary ofPakistan High Commission. His name also figures in documentCD-132(a)/23. The Designated Court, besides adverting to theaforementioned documents, also adverted to other documentsand the statements of the prospective witnesses (Ws-1, 28, 29,38, 39, 43, 44, 48 and 52). The High Court has not appreciatedthe said material which found favour with the Designated Courtto record its opinion that there are reasonable grounds forDbelieving that the accusation against the respondent is prima facietrue. The High Court adopted tenuous approach - by firstdiscarding the document D-132(a) and then discarding thestatement of witnesses recorded under Section 161 and also thestatements recorded under Section 164, presented by theEInvestigating Agency in sealed cover. The High Court ought tohave taken into account the totality of the materials/evidenceswhich depicted the involvement of the respondent in thecommission of the stated offences and being member of largerconspiracy, besides the offence under Section 17 for raising fundsfor terrorist activities. Proviso to Section 43D(5) of the 1967 ActFmandates that the accused person involved in the commission ofoffence referable to Chapters IV and VI of the 1967 Act shall notbe released on bail or on bond. However, the Court may releasesuch accused on bail only if it is of the opinion, on perusal of thecase diary and/or the report made under Section 173 of Cr.P.C.Gthat there are “no reasonable grounds” for believing that theaccusation against such person is prima facie true. Conversely,if in the opinion of the Court, there are reasonable grounds forbelieving that the accusation against such person is prima facietrue, the question of granting bail would not arise as the bar

under the first part of the proviso of no bail in such cases wouldoperate. The fact that there is high burden on the accused interms of the special provisions contained in Section 43D(5) todemonstrate that the prosecution has not been able to show thatthere exists reasonable grounds to show that the accusationagainst him is prima facie true, does not alter the legal positionexpounded in K. Veeraswami, to the effect that the charge-sheetneed not contain detailed analysis of the evidence. It is for theCourt considering the application for bail to assess the material/evidence presented by the Investigating Agency along with thereport under Section 173 of Cr.P.C. in its entirety, to form itsopinion as to whether there are reasonable grounds forbelieving that the accusation against the named accused is primafacie true or otherwise. [Paras 29-31][1121-F-H; 1122-A-H;1123-B-F]1.6 The Designated Court had rightly rejected the bailapplication after adverting to the relevant material/evidenceindicative of the fact that there are reasonable grounds forbelieving that the accusation against the respondent is prima facietrue. The issue of admissibility and credibility of the material andevidence presented by the Investigating Officer would be amatter for trial. The High Court, in the present case, adopted aninappropriate approach whilst considering the prayer for grant ofbail. The High Court ought to have taken into account thetotality of the material and evidence on record as it is and oughtnot to have discarded it as being inadmissible. The High Courtclearly overlooked the settled legal position that, at the stage ofconsidering the prayer for bail, it is not necessary to weigh thematerial, but only form opinion on the basis of the materialbefore it on broad probabilities. The Court is expected to applyits mind to ascertain whether the accusations against the accusedare prima face true. [Paras 33-35][1128-E-F; 1129-B; E-G]

1.7 The Designated Court rightly opined that there arereasonable grounds for believing that the accusation against therespondent is prima facie true. The order passed by the HighCourt granting bail to the respondent is reversed. In the presentcase, the respondent is not entitled to grant of bail in connectionwith the stated offences, particularly those falling under

AChapters IV and VI of the 1967 Act. The impugned judgmentand order is set aside and, instead, the order passed by theDesignated Court rejecting the application for grant of bail madeby the respondent herein, is affirmed. [Paras 36-38][1130-A-D]

K. Veeraswami v. Union of India and Ors. (1991) 3 SCCB655 : [1991] 3 SCR 189 – followed.Salim Khan v. Sanjai Singh and Anr. (2002) 9 SCC 670;Ranjitsing Brahmajeetsing Sharma v. State ofMaharashtra and Anr. (2005) 5 SCC 294 : [2005] 3SCR 345 – relied on.

CHitendra Vishnu Thakur and Ors. v. State ofMaharashtra and Ors. (1994) 4 SCC 602 : [1994] 1Suppl. SCR 360 ; Niranjan Singh Karam Singh Punjabi,Advocate v. Jitendra Bhimraj Bijjaya and Ors. (1990)4 SCC 76 : [1990] 3 SCR 633 ; Manohar Lal SharmaDv. Union of India (2017) 11 SCC 783 ; Jayanta KumarGhosh and Ors. v. State of Assam and Anr. (2010) 6Gauhati Law Reports 727 ; Davender Gupta v.National Investigating Agency (2014) SCC Online AP192 ; Sanjay Chandra v. CBI AIR 2012 SC 830 :[2011] 13 SCR 309 ; Central Bureau of InvestigationEv. V. C. Shukla and Ors. (1998) 3 SCC 410 : [1998] 1SCR 1153 ; Chenna Boyanna Krishna Yadav v. Stateof Maharashtra and Anr. (2007) 1 SCC 242 : [2006]10 Suppl. SCR 381 ; State of U.P. through CBI v.Amarmani Tripathi (2005) 8 SCC 21 : [2005] 3 Suppl.FSCR 454 ; Khoday Distilleries Ltd. and Ors. v. State ofKarnataka and Ors. (1995) 1 SCC 574 : [1994] 4 Suppl.SCR 477 – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 578 of 2019

From the Judgment and Order dated 13.09.2018 by the High Courtof Delhi at New Delhi in Criminal Appeal No. 768 of 2018.

K.K. Venugopal, Attorney General, R. Balasubramanian,Ms. Suhasini Sen, Suchindran Bhaskar Narayan, Surinder Singh(Sr. P. P./ NIA), B. V. Balaram Das, Advs. for the Appellant.

Shekhar Naphade, R. A. Jan, Sr. Advs., Shariq J. Reyaz, AbhikalpPratap Singh, Ms. S. Lakshmi Iyer, Shakil Ahmed Syed, Advs.for theRespondent.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. Leave granted.

2. The respondent is named as Accused No.10 in the First Infor-mation Report dated 30[th] May, 2017, registered by the Officer-in-chargeof Police Station, NIA, Delhi, for offences punishable under Sections120B, 121 and 121A of the Indian Penal Code (“IPC”) and Sections13,16,17,18,20,38,39 and 40 of the Unlawful Activities (Prevention) Act,1967, (for short “the 1967 Act”). The respondent (Accused No.10)filed an application for bail before the District and Sessions Judge,Special Court (NIA), New Delhi, which came to be rejected on 8[th] June,2018. That order has been reversed by the High Court of Delhi at NewDelhi in Criminal Appeal No.768/2018 vide order dated 13[th] September,2018. The High Court directed release of the respondent on bail subject

Ato certain conditions. That decision is the subject matter of this appealfiled by the prosecuting agency - the appellant herein.

3. The Designated Court opined that there are serious allegationsagainst the respondent Zahoor Ahmad Shah Watali (Accused No.10) ofbeing involved in unlawful acts and terror funding in conspiracy withBother accused persons; he had acted as conduit for transfer of fundsreceived from terrorist Accused No.1 Hafiz Muhammad Saeed, ISI,Pakistan High Commission, New Delhi and also from source in Dubai,to Hurriyat leaders/secessionists/terrorists; and had helped them in wagingwar against the Government of India by repeated attacks on securityforces and Government establishments and by damaging publicCproperty including by burning schools etc. It then noted that theaccusation against the respondent (Accused No.10) was of being partof larger conspiracy to systematically upturn the establishment to causesecession of J & K from the Union of India. Keeping in mind thespecial provisions in Section 43D of the 1967 Act and the exposition inDHitendra Vishnu Thakur and Ors. Vs. State of Maharashtra andOrs.,[1]Niranjan Singh Karam Singh Punjabi, Advocate Vs. JitendraBhimraj Bijjaya and Ors.[2], Manohar Lal Sharma Vs. Union ofIndia[3] and Jayanta Kumar Ghosh and Ors. Vs. State of Assam andAnr.[4], it proceeded to analyse the material on record and observed thus:

E“7.5 Let me now see whether on the basis of the material onrecord, allegations against the accused are prima facie made outor not. Mindful of the fact that this is not the stage to examine andanalyze the evidence placed on record in detail, let me refer to thesame. Allegation against the accused that certain businesses ofhis, were just front/ sham for routing of funds received fromFabroad/ terrorist A-1/ High Commission, Pakistan/ Dubai/othersources and that there were, unaccounted financial transactions,is prima facie borne out from statement of the witnesses PW1,PW28 and PW29 and documents including D-202 & D-214. Ithas also come in the statements of PW38 & PW39, who preparedGbalance sheets of accused’s firms/companies namely Trison Farmsand Constructions Pvt. Limited, M/s Trison International, M/s YasirEnterprises, M/s 3Y, M/s Kashmir Veneer Industries & M/s Three

1 (1994) 4 SCC 602

2 (1990) 4 SCC 76

3 (2017) 11 SCC 783

H4 (2010) 6 Gauhati Law Reports 727

Star, that the accused never produced any supporting documentswith respect to remittances received from NZ-International Dubai-FZC, owned by him; and that he did not even inform about theactual execution of business despite asking of PW39. The factthat the balance sheets of M/s Trison International, M/s 3Y wereforcefully got signed from the protected witness PW43 withoutproviding him any document, has come in his statement. It hasalso come in the statement of PW44 that the audit report of theaforesaid companies were got signed from him without producingbooks for verification.”

Again in paragraph 7.8 to 7.10 the Court observed:

“7.8 The fact that the accused received money from abroad /A-1, chief of proscribed (terrorist) organization, HCP (HighCommission, Pakistan) and others and was passing on the saidfunds to Hurriyat leaders, is prima facie borne out from D-152read with statement of PW29 and D-154 (Expert’s Report), asper which the signatures of the accused on D-152 were comparedwith his admitted handwriting and were verified and found to besimilar. In view of the same, the Ld. Defence counsel’s argumentthat the said document/ D-152 cannot be looked into at all even toform prima facie opinion, cannot be accepted. Thus, the judgmentof Hon’ble Supreme court in Manohar Lal Sharma’s Case(Supra), relied upon Ld. Defence counsel is also of no assistanceto the accused.

7.9 Further, the association/proximity of Altaf Ahmad Shah @Fantoosh (A-4), Farooq Ahmad Dar @ Bitta Karate (A-6) withaccused, is also prima facie borne out from the statement ofprotected witness PW48. Accused’s links with people who haverole in governance of Pakistan and with Hurriyat leaders has alsoprima facie come on record vide statement of PW52, documentsD-3, D-4 (e) etc. and other material on record.

7.10 In view of the above facts and circumstances, the statementsof witnesses/material/documents and other material placed onrecord by NIA, offences as alleged against the accused are primafacie made out. Therefore, in view of the bar under proviso to

ASection 43D(5) UA(P) Act, the accused’s prayer for bail cannotbe granted.”

Further the Court observed:

“8.1.1 Ld. Special PP, NIA also submitted that the applicant/accused is an influential person/ business man and has greatclout in the valley, as has come in the statement of PW48. All thewitnesses are known to the applicant/ accused. There is everylikelihood of the applicant/accused influencing/ intimidatingwitnesses/ tempering with evidence, in the event of his releaseeven on interim bail.”

4. The respondent had also prayed for grant of bail on healthgrounds, which plea was duly considered and rejected in the followingwords:

“8.2 I have duly considered the submissions made by both thesides. Perusal of the record reveals that as and when requestedby the accused, he was provided medical treatment from time totime. Pursuant to the directions of this court, the accused wastaken to the premier medical institute of India/AIIMS for necessarymedical examination. This was besides being provided appropriatemedical attention to Jail hospital and in-patient treatment at Dr.RML hospital from 01.09.2017 to 05.09.2017. As per medical statusreport dated 26.09.2017, the accused was extensively evaluatedat Dr. RML Hospital for chest pain and cause of cardiac diseasewas ruled out. Even subsequently, the accused was reviewed atCentral Jail Hospital and detailed blood investigation was carriedout and medication was provided. On his complaint of anxiety,severe low back pain and bleeding per-rectum on 24.09.2017, theaccused was admitted to M.I. Room, Dispensary, Central JailNo. 8/9 from 24.09.2017 to 26.09.2017. Vide subsequent reportdated 11.10.2017, Medical Officer I/c, Central Jail Tihar,Dispensary 8/9, reported that the accused was getting treatementunder regular follow up of Medicine Specialist, jail visiting SRsurgery. It may further be mentioned that accused was constantlyreviewed at short intervals and was provided all advisedmedication.

8.3 It has also come in order sheet dated 03.01.2018 that as permedical report of accused received from AIIMS New Delhi, theaccused was evaluated in seven speciality/ superspeciality OPDsbut was not found to be suffering from any specific ailment exceptfor his known history of Type 2 diabetes mellitus, hypertension &hypothyroidism for which requisite medications to be takenregularly, were already prescribed. The Colonoscopy test of theaccused was scheduled for 15.01.2018. Medical status report ofaccused Zahoor Ahmad Shah Watali received from the MedicalOfficer Incharge, Central Jail Dispensary, Tihar, New Delhi,mentioned that the accused despite being counseled several timesto continue his treatment at AIIMS Hospital, refused to visit AIIMSfor treatment/further management.

9.0 From the above, it is evident that the applicant/ accused isbeing provided necessary medical attention/ treatment as and whenprayed for, not only inside the jail but also at AIIMS and otherGovt. Hospitals. Thus, taking into account the law as laiddown in Redual Hussain Khan’s case (Supra), no groundfor grant of interim bail on health grounds is made out.

9.1 However, Jail Superintendent is directed to provideproper medical care and treatment to the applicant/ accused,as requested/ called for.”

5. The respondent carried the matter before the High Court byway of Criminal Appeal No.768 of 2018 under Section 21(1) read withSection 21(4) of the National Investigation Agency Act, 2008. The HighCourt noticed that after filing of the charge-sheet, accused Nos.11 and12 had been granted regular bail, while accused Nos.1 and 2 had notbeen arrested. Rest of the accused, including the respondent (AccusedNo.10), were in judicial custody. The respondent (Accused No.10) wasarrested on 17[th] August, 2017 and had been in judicial custody sincethen. His age, as indicated in the charge-sheet, was about 70 years. TheHigh Court then adverted to paragraph 17.6.5 onwards of thecharge-sheet [report under Section 173 of the Code of CriminalProcedure (Cr.P.C.)] and summarized the allegations against respon-dent (Accused No.10) as follows:

“18. Specific to the Appellant are the allegations made inParagraph 17.6.5 of the charge-sheet which is subtitled ‘Hawala’.

This being the principal allegation against the Appellant, requiresto be summarized as under:

(i) The Appellant is one of the conduits to bring money fromoff-shore locations of India to fuel anti-India activities in Jammuand Kashmir. Reference is again made to the same incriminatingdocument i.e. No.132 (a).

(ii) A-10 was bringing money from off-shore locations to India“by layering it through the scores of firms and companies he hasopened”. Reference is made to an NRE account of the Appellantat the J&K Bank where, from 2011 till 2013, he is said to havereceived Rs.93, 87, 639. 31 from ‘unknown sources’.

(iii) The Appellant was showing foreign remittances under ‘otherincome’ in his proprietorship M/s Trison International, Srinagar.Foreign remittances in the sum of Rs.2,26,87,639.31 were receivedby the Appellant in different accounts from 2011 to 2016. It isrepeated that Rs.93,87,639.31 was received in his NRE accountfrom 2011 to 2013.

(iv) It is stated that Rs.14 lacs were remitted in the account of amedical college in Jammu through NEFT on 9th April, 2013 againstthe fees deposited for his son (who incidentally is medicaldoctor and through whom the present appeal has been filed). It isstated that Rs.60 lacs were remitted in the current account of theAppellant in J&K Bank. Rs.5 lacs were remitted in the accountof M/s Trison Farms and Constructions Pvt. Limited (‘TFCPL’).It is stated that all these foreign remittances “are from unknownsources”.

(v) On 7th November, 2014, one Nawal Kishore Kapoor (whoinitially was witness but has, since the filing of the charge-sheet,been arrayed as an accused himself), resident of United ArabEmirates (‘UAE’) entered into an agreement with TFCPL, whoseManaging Director (‘MD’) is the Appellant to take landmeasuring 20 kanals in Budgam in J&K on lease in considerationof sum of Rs.6 crores as premium and Rs.1,000/- annual rentfor an initial period of 40 years which could be extended throughmutual agreement. In the said agreement, TFCPL was declared

as the absolute owner of the land. Mr. Kapoor remitted totalsum of Rs.5.579 crores in 22 instalments between 2013 and 2016to the Appellant.

(vi) During investigation it was revealed that no land exists in thename of TFCPL as per the balance sheet of that company.Further, it was ascertained that Rs.5,57,90,000 was mobilized byMr. Kapoor from unknown sources and remitted to Appellant tolease piece of land which does not even exist in the name ofTFCPL and therefore the agreement itself lacks legal sanctity.According to the NIA, this “proves that the said agreement was acover” created by the Appellant “to bring foreign remittances fromunknown sources to India”.

(vii) The Chartered Accountant (‘CA’) who signed the auditedbalance sheet of M/s Trison International., TFCPL and M/s YasirEnterprises for various years between 2013-14 and 2015-16 “didso without seeing any supporting documents”. According to theNIA, the balance sheets of the above entities/companies weresent to the CA by Mustaq Mir, Cost Accountant and ShabirMir, CA from Wizkid Office, Srinagar through email and he wasasked to sign on them in Delhi without showing any documents.According to the NIA, this also clearly showed that the Appellantwas remitting money received from unknown sources to India.

(viii) TFCPL raised an unsecured loan of Rs.2,65,55,532/- fromthe Directors of the company, i.e. the Appellant, his wife, and histhree sons in the Financial Year (‘FY’) 2010-11 in the form ofboth cash and cheque and this was used to repay the securedloan of Rs.2,94,53,353/- in the books of J&K Bank. The sourceof money with the Directors could not be explained satisfactorilyby the Appellant.

(ix) The seizure from the house of the Appellant of list of ISIofficials and letter from Tariq Shafi, proprietor of Al Shafi Groupaddressed to the PHC recommending grant of visa to theAppellant “shows his proximity with Pakistani Establishment”. Itis stated that the name of Tariq Shafi figures in the document offoreign contributions seized from the house of the Appellantscashier-cum-accountant Ghulam Mohd. Bhatt.”

A6. The High Court also adverted to the accusations againstrespondent (Accused No.10) in paragraphs 17.9 and 17.10 of the charge-sheet, to the effect that CDRs relied upon by the prosecution revealedthat the accused persons were in contact “with each other, with somemilitants/OGWs (Over Ground Workers) and the hawala conduit” i.e.the respondent (Accused No.10) and the other accused, that theBrespondent (Accused No.10) was in constant contact on telephone withA-3, A-4, A-5 and A-6 and that A-3 to A-12 were in contact with eachother, either directly or indirectly. In paragraph 17.10 of the charge-sheet, it is stated that respondent (Accused No.10) was known hawaladealer and financer and number of cases were registered against him,Cwhich were being investigated by the sister investigating agencies. TheHigh Court, however, noted that the charge-sheet neither gave details ofthe other cases registered and being investigated against the respondentnor revealed the details thereof to the Court. The High Court also notedaccusations against the respondent (Accused No.10) in paragraphs 18.10,18.13 and 18.14, revealing the linkage between A-3 to A-10 andDindicating clear meeting of minds of the said accused in hatching theconspiracy in support of A-1 and A-2 and other Hurriyat leaders andother terrorist organizations in J & K.

7. After noting the relevant facts emanating from thecharge-sheet filed against the respondent, the High Court adverted toEthe conclusions recorded by the Trial Court. It then proceeded to analysethe relevant provisions of the 1967 Act and the principle underlying thedecisions of this Court concerning the Terrorist and DisruptiveActivities (Prevention) Act, 1985 (“TADA”) and the MaharashtraControl of Organised Crime Act, 1999 (“MCOCA”), in light of theFexposition in Hitendra Vishnu Thakur (supra) and Niranjan SinghKaram Singh Punjabi (supra), and posed question to itself as towhether the material gathered by the NIA in the present case couldhave enabled the Trial Court to come to the conclusion that there werereasonable grounds for believing that the accusation against the

respondent (Accused No.10) was prima facie true. After so noting, itGobserved that the statements of the proposed/prospective witnessesrecorded under Section 161 Cr.P.C. did not constitute admissibleevidence. Those could only be used to confront the witnesses who wouldsubsequently appear at the trial. It noted that this crucial aspect had tobe kept in view while referring to such statements at that stage. TheH

High Court then noted that the Investigating Agency had recorded thestatements of the witnesses under Section 164 of Cr.P.C. but had keptthe same in sealed cover enclosed to the charge-sheet. The HighCourt noted that the statements at serial Nos.277 and 278 were ofprotected witnesses “Charlie” and “Romeo” respectively, and those atserial Nos.279 to 284 were described as statements of protectedwitnesses “Romeo”, “Alpha”, “Gamma”, “Pie”, “Potter”, “Harry” and“xxx”. These statements were kept in sealed cover and not supplied tothe respondent (Accused No.10). Further, these statements werepresumably not perused by the Designated Court. Notably, theapplication moved by the Investigating Agency under Section 44 of the1967 Act to accord protection to those witnesses remained pendingbefore the Designated Court. Here, it may be mentioned that during thependency of the present appeal before this Court, the said applicationhas been decided in favour of the Investigating Agency vide order dated11[th] January, 2019 passed by the Designated Court. We shall refer tothis little later.

8. Reverting to the judgment of the High Court, it opined that thesaid statements under Section 164 of Cr.P.C. could not be considered,as copies thereof had not been provided to the respondent. It thenproceeded to hold that Section 44 of the 1967 Act merely permitted theidentity and address of such witnesses to be kept secret by the Court. Itheld that it was not possible to read Section 17 of the NIA or Section 44of the 1967 Act as an exception to Section 207 read with Section 173Cr.P.C., which mandates that the accused shall be supplied copies of thepolice report and other documents relied upon by the prosecution in thecharge-sheet, without delay and free of cost. It then proceeded to analysethe interplay between Sections 207, 161, 164 and 173 of Cr.P.C. andopined that even in respect of statements recorded under Section 161 ofCr.P.C., there was no wholesale exclusion of the entire document frombeing provided to the accused. What was permitted was the redactionof such portion of the document which could reveal the identity andaddress of the maker of the statement. Be it noted that the High Courtdid not think it necessary to direct the Designated Court to first decidethe application filed by the Investigating Agency under Section 44 of the1967 Act before proceeding with the hearing of the appeal filed by therespondent. Instead, the High Court preferred to exclude thosestatements kept in sealed cover from consideration. The High Court

ABC

Adid not advert to Section 48 of the 1967 Act, which makes it amply clearthat the provisions of the Act shall have effect notwithstanding anythinginconsistent therewith contained in any enactment other than the saidAct etc. The High Court then went on to observe that the charge-sheetmade no reference to the statements recorded under Section 164 of thewitnesses in respect of whom protection was sought by theBInvestigating Agency. The High Court distinguished the decision of thisCourt in K. Veeraswami Vs. Union of India and Ors.[5] pressed intoservice by the Investigating Agency to buttress its submission that it isnot necessary that the charge-sheet must contain detailed analysis ofthe evidence, and that the Trial Court ought to consider not only theCnarration in the charge-sheet but also all documents accompanyingthereto. The High Court, however, opined that in the context of therelatively high burden placed on the accused in terms of the proviso toSection 43D(5) of the 1967 Act, of having to demonstrate that theprosecution had not been able to show that there existed reasonable

grounds to show that the accusation against him was prima facie true,Dthe absence of any reference in the charge-sheet to the statementsunder Section 164 Cr.P.C., which are of higher probative value thanthe statements under Section 161 Cr.P.C., was significant. It thusobserved that such statements could not be kept back from the accused.Resultantly, the statements of the protected witnesses recorded underESection 164 Cr.P.C. were kept out of consideration by the High Court,with liberty to the parties to independently make submissions before theTrial Court at the appropriate stage.

9. The High Court then straightaway proceeded to analyse theefficacy of document D-132(a) forming part of the charge-sheet. InFlight of the statement of Ghulam Mohammad Bhatt from whom the samewas recovered, it noted in paragraph 61 of the impugned judgment thatit was unlikely that the document D-132(a) was recovered from theresidence of Ghulam Mohammad Bhatt till 16[th] August, 2017, andthereafter proceeded to observe thus:

G“62. While the genuineness and the evidentiary value ofDocument 132 (a) is yet to be established by the NIA at the trial,since this one document is being relied upon by the NIA as beingcentral to its case against the Appellant, it is but inevitable that thetrial Court and now this Court has to discuss it in some detail for

H5 (1991) 3 SCC 655

the purpose of deciding whether the Appellant can be released onbail.

63. The question that arises is whether there is anything to showwith reference to each of the dates mentioned in the aboveDocument No. 132 (a) that the figures shown against the entryon each date (purporting to be specific amounts of money) wasin fact received by the Appellant in his personal accounts or in theaccounts of any of his entities. Although the case of the NIA isthat the money has been received, there is no document orstatement, which forms part of the charge sheet, which in factindicates this.

64. The above document is also relied upon by the NIA asproviding proof of the linkages of the Appellant to A-1, throughthe entry dated 3rd May, 2015 and with the Pakistan HighCommission (PHC) through the entries dated 15th and 20thOctober, 2016. Yet none from the PHC has been named, muchless statement of such person been recorded to confirm thatthose figures represented money that was received from thePHC.

65. The case of the NIA in the charge sheet is that the samedocument is also proof of the fact that the monies so receivedwere passed on to the Hurriyat leaders. Reference is made to thefourth olumn of the above document where the names of some ofthe Hurriyat leaders are mentioned. However, there is nothing toshow that the money was received by the Appellant and thentransmitted by him to any of the named Hurriyat leaders. Norhave any of the ‘prospective witnesses’ including Mr Bhatt madeany statement to that effect.

66. Mr. Luthra urged that the signature of the Appellant in theright hand bottom corner of the document has been confirmed bythe handwriting expert to match the specimen signature of theAppellant. In reply it was pointed out by Mr. Vikas Pahwa, learnedSenior counsel for the Appellant, that the mere fact that theAppellant’s signature appeared on the document did not meanthat he had in fact signed the document in acceptance of the truthof its contents. According to him, it is too early to speculate whether

the Appellant when he signed the paper, if at all, put his signatureon blank green legal size paper which may be have then beenused for legal purposes for an affidavit etc.

67. It is indeed too early in the case to speculate whether theAppellant in fact signed the document after it was typed out andBwhether his signature amounts to accepting the truth of itscontents or for that matter whether the contents of the documentin question constitute conclusive proof of what the NIA allegesthe document to be.

68. In the circumstances, the Court is not satisfied that sheet ofCpaper containing typed entries and in loose form, not shown toform part of the books of accounts regularly maintained by theAppellant or his business entities, can constitute material to even‘prima facie’ connect the Appellant with the crime with which heis sought to be charged. The conclusion of the trial Court that thisdocument shows the connection of the Appellant with the otherDaccused as regards terrorist funding does not logically or legallyflow from plain reading of the document.”

10. The High Court then adverted to the other documents. Itanalysed the concerned documents and concluded that the entire bunchof documents did not reveal that the trading activities undertaken by theErespondent were geared towards funding of terrorist activities, asalleged in the charge-sheet. It may be apposite to reproduce therelevant extract from the impugned judgment in this regard, which readsthus:

“69. Mr. Luthra then referred to the statements of Mustaq AhmadFMir and Shabbir Ahmad Mir, the reply of Mr Mustaq Ahmad Mir(Ex.D-214), the CFSL report dated 6th November, 2017(document D-154); the seizure memo dated 3rd June, 2017(document D-3) regarding the recovery being made from theresidence of the Appellant; the seizure memo of the same date ofGthe recoveries from the office of the TFCPL (document D-4);and the bunch of papers seized from the Appellant [D-4(e)]referred to by the trial Court.

70. Beginning with the last referred document, [D-4(e)], it isactually bunch of documents, the first of which is letter dated

28th June, 2016, written by the Prime Minister of PakistanMr Mohammad Nawaz Sharif to the Appellant thanking him forthe bouquet sent to him with wishes for his good health and wellbeing.

71. Then there is letter dated 20th November, 2007 from thePresident of the Azad Jammu and Kashmir, Chambers ofCommerce and Industry, addressed to the Appellant, appointingthe Appellant as an Honorary Trade Consultant at Srinagar. Itnotes that Pakistan and India had initiated/undertaken numberof Kashmir related CBMs (confidence building measures) in therecent past to provide respite to the Kashmiris on both sides ofthe LoC (Line of Control):

‘1.Pakistan and India have initiated/undertaken number ofKashmir related CBMs in recent past to provide respite to theKashmiris on both sides of the LoC. One such CBM which isunder active consideration is commencement of trade betweenboth parts of Kashmir. Necessary modalities including the itemsto be traded are being worked out.’

72. The other documents reflect the correspondence carried outin the regular course of business between the Appellant’sbusiness entities and other entities including the Al-Shafi Group ofcompanies, headquartered at Lahore. business invitation wasextended to the Appellant on 7th February, 2014 by Mohd. TariqShafi, the director of Al-Shafi Group of companies to visit themfor business negotiations. There is letter of the same dateaddressed by Mr. Mohd. Tariq Shafi to the PHC in New Delhi forgrant of Pakistan Business Visa to the Appellant.

73. It must be noticed at this stage that the NIA does not disputethat the Appellant is leading businessman in Kashmir. He runs aconglomerate of business entities and has been active in thecontext of the Indo-Pakistan trade. Nothing has been shown tothis Court from the entire bunch of documents which wouldsuggest that these trade activities were geared toward funding ofterrorist activities, as alleged in the charge-sheet.”

11. The High Court then adverted to the statements of MustaqAhmad Mir and Shabbir Ahmad Mir and noted that the same had no

Aevidentiary value since they were merely statements under Section 161Cr.P.C. and even if taken at their face value, they would only indicatethat some of the entries in the accounts and, in particular, the source ofcredit entries were not explained properly. Further, the accounts of theentities of the respondent were regularly audited and it was not possibleto prima facie conclude that these unknown sources were, in fact,Bconnected to the other accused and that remittances were received fromPakistan or UAE for terrorist activities. The Court noted that there mustbe something more substantial than mere audited accounts that mayhave entries that require explanation to the Income Tax Authorities. Asa result, the High Court concluded that the documents relied upon by theCInvestigating Agency did not persuade the Court to prima facieconclude that the respondent received money from A-1 or Pakistan HighCommission or others and was passing on the said funds to the Hurriyatleaders for funding terrorist activities and stone-pelting. The High Courtalso adverted to the statement of the ‘protected witness’ W-48 about

the proximity of the respondent (Accused No.10) with A-4 and A-6 andDopined that the same could not be construed as material that wouldenable the prosecution to show that accusation against the respondentabout his funding terrorist activities was prima facie true. Lastly, theHigh Court dealt with transaction of lease involving Naval Kishore Kapoorand noted thus:

E“77. Turing to the transaction of lease involving Mr. Naval KishoreKapoor, it is explained on behalf of the Appellant that onlyindividuals domiciled in Kashmir can hold properties there. Therewas no declaration of ‘ownership’ of lands by the companies andin any event it was lease. The lease itself has not been shown toFbe sham transaction. As regards the NRE account, it is pointedout that it has since been closed and the fine amount was alsopaid. As regards the CDRs, it is pointed out that there may havebeen exchange of calls between the Appellant and A-6 but notbetween the Appellant and A-3, A-4 or A-5. This cannot at thisstage be said to constitute material to show that the accusation ofGa criminal conspiracy between the Appellant and A-6 forcommission of terrorist offences is prima facie true. It also emergedduring the course of the hearing of this appeal that neither theAPHC nor any of its 26 constituent organisations are ‘banned’organisations within the meaning of the UAPA.”

12. Having said thus, the High Court proceeded to conclude thatthe order passed by the Designated Court was cryptic andunsustainable both on facts and in law. It then went on to observe thatthere was nothing on record to indicate the previous criminalinvolvement of the respondent in any offence or the possibility of therespondent fleeing from justice, if released on bail. Further, therespondent who was septuagenarian and was suffering from variousmedical ailments, was in judicial custody for more than year and hadnot tampered with the evidence or interfered with any of the‘prospective/protected’ witnesses. The High Court then went on to relyon the dictum in Davender Gupta Vs. National Investigating Agency[6]and Sanjay Chandra Vs. CBI[7]. Finally, the High Court directed therelease of respondent on bail and issued directions in that regard subjectto conditions stated in the concluding part of the impugned judgmentwhich reads thus:

“Conclusion

82. The impugned order dated 8th June, 2018 of the trial Court isaccordingly set aside. The Appellant is directed to be released onbail subject to his furnishing personal bond in the sum of Rs.2lakhs with two sureties of like amount to the satisfaction of thetrial Court, and further subject to the following conditions:

(i) The Appellant shall report to the IO in charge of the case asand when required. He shall provide to the IO as well as thetrial Court the mobile phone on which he can be contacted andhis current address where he will be available. He will keepboth the IO and the trial Court informed promptly if there isany change in either.

(ii) He will not influence or intimidate the proposed/prospective Crl.A.768/2018 Page 40 of 40 prosecutionwitnesses or tamper with the evidence of the prosecution inany manner.

(iii) The Appellant will surrender his passport before the trialCourt at the time of execution of the bail bonds. He will not

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[2019] 5 S.C.R.

Atravel out of the country without prior permission of the trialCourt.

(iv) If there is any breach of the above conditions, it will beopen to the NIA to apply to the trial Court for cancellation ofbail.

B83. It is clarified that the observations of this Court in this orderboth on facts and law are based on the materials forming part ofthe charge sheet and are prima facie in nature and for the limitedpurpose of considering the case of the Appellant for grant of bail.They are not intended to influence the decisions of the trial CourtCat any stage of the case hereafter.

84. The appeal is allowed in the above terms.”

13. The view so taken by the High Court has been assailed by theInvestigating Agency – the appellant herein, on diverse counts.According to the appellant, the High Court has virtually conducted aDmini trial and even questioned the genuineness of the documents reliedupon by the Investigating Agency. In that, the High Court adopted acurious approach in finding fault with the Investigating Agency for notnaming any official from the High Commission of Pakistan as accusedor recording their statements as witnesses, for inexplicable reasons. InEso observing, the High Court clearly overlooked the fact that theofficials of the High Commission are accorded diplomatic immunity. Notonly that, while considering the statements of witnesses recorded underSection 161 of Cr.P.C., the High Court went on to observe that the samewere inadmissible in evidence and discarded it from consideration forforming opinion as to whether the accusations against the respondentF(Accused No.10) were prima facie true. The Court, however, wasobliged to consider all the statements recorded under Section 161 ofCr.P.C. in light of the exposition in Salim Khan Vs. Sanjai Singh andAnr.[8] Similarly, the statements recorded under Section 164, which wereproduced in sealed cover, had been completely discarded. TheGapproach of the High Court, to say the least, contends the learnedAttorney General, was tenuous and not permissible at the stage ofconsideration of prayer for bail. The analysis done by the High Court is

bordering on being perverse as it has virtually conducted mini trial atthe stage of consideration of the prayer for bail. According to theappellant, the charge-sheet filed against the respondent wasaccompanied by documentary evidence, statements of prospectivewitnesses and other evidence which indicated complicity of therespondent and reinforced the aspect that the accusations made againsthim were prima facie true. It is submitted that at the stage ofconsideration of bail, the totality of the evidence available against therespondent must be reckoned and ought to be taken into account as it is,without anything more. The question of admissibility of such evidencewould be matter for trial. The sufficiency or insufficiency of theevidence cannot be the basis to answer the prayer for grant of bail. It iscontended that after considering the statements of protected witnessesrecorded under Section 164 of the Code, the same reinforces theaccusations made against the respondent (Accused No.10) as beingprima facie true. Accordingly, it is submitted that the High Court orderbe set aside and the application for bail preferred by the respondent(Accused No.10) be rejected.14. Learned counsel for the respondent, on the other hand,submits that the High Court justly came to hold that no evidence wasforthcoming to indicate the complicity of the respondent in thecommission of the alleged offences and that the documents andevidence relied upon by the Investigating Agency were not enough tosustain the accusations, much less as being prima facie true. It issubmitted that the accusations made against the respondent in thecharge-sheet do not fall under Chapters IV and VI of the 1967 Act.Further, the pivotal document D-132(a) was not sufficient to fasten anycriminal liability upon the respondent. As matter of fact, the saiddocument is loose sheet of paper and cannot be looked at in view ofthe mandate of Section 34 of the Evidence Act. To buttress thissubmission, reliance has been placed on Central Bureau ofInvestigation Vs. V.C. Shukla and Ors.[9] In any case, the saiddocument itself cannot and does not prima facie suggest that the funds,as shown, were received and disbursed in the manner described in thedocument. Further, there is no independent corroboration forthcomingmuch less to establish the complicity of the respondent in attracting the

Aimperatives of Section 17 of 1967 Act. It is submitted that even if thecontents of the said document were taken as it is, with the exception ofaccused No.4 (Altaf Ahmad Shah @ Fantoosh), no other person to whomthe amount was paid or from whom the amount was received, has beenarrayed as an accused in the charge-sheet. The statements of witnessesrecorded under Section 161 or Section 164 of Cr.P.C. do not mentionBanything about the involvement of the respondent in commission of thestated offences. The statements of the co-accused cannot be consid-ered as admissions, much less used against the respondent. Further, therewas no evidence to indicate the involvement of the respondent in thelarger conspiracy much less regarding terrorist activity. It is submittedCthat the High Court was justified in analysing the materials on record tosatisfy itself as to whether the accusations made against the respondentwere prima facie true. That enquiry was permissible in terms of theexposition in Ranjitsing Brahmajeetsing Sharma Vs. State ofMaharashtra and Anr.[10] and Chenna Boyanna Krishna Yadav Vs.State of Maharashtra and Anr.[11] According to the respondent, noDfault can be found with the High Court and the view taken by the HighCourt, being possible view, did not require any interference in exerciseof the power under Article 136 of the Constitution of India. It is finallysubmitted that this Court, if it so desires, may impose additionalconditions whilst upholding the order of bail passed by the High Court.E

15. Before we proceed to analyse the rival submissions, it isapposite to restate the settled legal position about matters to be consid-ered for deciding an application for bail, to wit, (i) whether there isany prima facie or reasonable ground to believe that the accused hadcommitted the offence; (ii) nature and gravity of the charge; (iii)

Fseverity of the punishment in the event of conviction; (iv) danger of theaccused absconding or fleeing, if released on bail; (v) character, behaviour,means, position and standing of the accused; (vi) likelihood of theoffence being repeated; (vii) reasonable apprehension of the witnessesbeing tampered with; and (viii) danger, of course, of justice being thwartedby grant of bail. (State of U.P. through CBI Vs. Amarmani Tripathi[12]).G

16. When it comes to offences punishable under specialenactments, such as the 1967 Act, something more is required to be kept10 (2005) 5 SCC 29411 (2007) 1 SCC 24212 (2005) 8 SCC 21 (para 18)H

in mind in view of the special provisions contained in Section 43D of the1967 Act, inserted by Act 35 of 2008 w.e.f. 31[st] December, 2008. Sub-sections (5), (6) and (7) thereof read thus:

“43D. Modified application of certain provisions of theCode.- xxxxxxxxxxxx

(5) Notwithstanding anything contained in the Code, no personaccused of an offence punishable under Chapters IV and VI ofthis Act shall, if in custody, be released on bail or on his own bondunless the Public Prosecutor has been given an opportunity ofbeing heard on the application for such release:

Provided that such accused person shall not be released on bail oron his own bond if the Court, on perusal of the case diary or thereport made under section 173 of the Code is of the opinion thatthere are reasonable grounds for believing that the accusationagainst such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5)is in addition to the restrictions under the Code or any other lawfor the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and(6), no bail shall be granted to person accused of an offencepunishable under this Act, if he is not an Indian citizen and hasentered the country unauthorisedly or illegally except in veryexceptional circumstances and for reasons to be recorded inwriting.”

17. By virtue of the proviso to sub-section (5), it is the duty of theCourt to be satisfied that there are reasonable grounds for believing thatthe accusation against the accused is prima facie true or otherwise.Our attention was invited to the decisions of this Court, which has hadan occasion to deal with similar special provisions in TADA and MCOCA.The principle underlying those decisions may have some bearing whileconsidering the prayer for bail in relation to offences under the 1967 Actas well. Notably, under the special enactments such as TADA, MCOCAand the Narcotic Drugs and Psychotropic Substances Act, 1985, the

ACourt is required to record its opinion that there are reasonable groundsfor believing that the accused is “not guilty” of the alleged offence.There is degree of difference between the satisfaction to be recordedby the Court that there are reasonable grounds for believing that theaccused is “not guilty” of such offence and the satisfaction to be re-corded for the purposes of the 1967 Act that there are reasonable groundsBfor believing that the accusation against such person is “prima facie”true. By its very nature, the expression “prima facie true” would meanthat the materials/evidence collated by the Investigating Agency in ref-erence to the accusation against the concerned accused in the first in-formation report, must prevail until contradicted and overcome or dis-Cproved by other evidence, and on the face of it, shows the complicity ofsuch accused in the commission of the stated offence. It must be goodand sufficient on its face to establish given fact or the chain of factsconstituting the stated offence, unless rebutted or contradicted. In onesense, the degree of satisfaction is lighter when the Court has to opinethat the accusation is “prima facie true”, as compared to the opinion ofDaccused “not guilty” of such offence as required under the other specialenactments. In any case, the degree of satisfaction to be recorded bythe Court for opining that there are reasonable grounds for believing thatthe accusation against the accused is prima facie true, is lighter thanthe degree of satisfaction to be recorded for considering dischargeEapplication or framing of charges in relation to offences under the 1967Act. Nevertheless, we may take guidance from the exposition in thecase of Ranjitsing Brahmajeetsing Sharma (supra), wherein three-Judge Bench of this Court was called upon to consider the scope ofpower of the Court to grant bail. In paragraphs 36 to 38, the Courtobserved thus:F

“36. Does this statute require that before person is released onbail, the court, albeit prima facie, must come to the conclusionthat he is not guilty of such offence? Is it necessary for the courtto record such finding? Would there be any machinery availableto the court to ascertain that once the accused is enlarged on bail,Ghe would not commit any offence whatsoever?

37. Such findings are required to be recorded only for the purposeof arriving at an objective finding on the basis of materials onrecord only for grant of bail and for no other purpose.

38. We are furthermore of the opinion that the restrictions on thepower of the court to grant bail should not be pushed too far. Ifthe court, having regard to the materials brought on record, issatisfied that in all probability he may not be ultimately convicted,an order granting bail may be passed. The satisfaction of the courtas regards his likelihood of not committing an offence while onbail must be construed to mean an offence under the Act and notany offence whatsoever be it minor or major offence. … Whatwould further be necessary on the part of the court is to see theculpability of the accused and his involvement in the commissionof an organised crime either directly or indirectly. The court at thetime of considering the application for grant of bail shall considerthe question from the angle as to whether he was possessed ofthe requisite mens rea….”

And again in paragraphs 44 to 48, the Court observed:

“44. The wording of Section 21(4), in our opinion, does not lead tothe conclusion that the court must arrive at positive finding thatthe applicant for bail has not committed an offence under the Act.If such construction is placed, the court intending to grant bailmust arrive at finding that the applicant has not committed suchan offence. In such an event, it will be impossible for the prosecu-tion to obtain judgment of conviction of the applicant. Such can-not be the intention of the legislature. Section 21(4) of MCOCA,therefore, must be construed reasonably. It must be so construedthat the court is able to maintain delicate balance between ajudgment of acquittal and conviction and an order granting bailmuch before commencement of trial. Similarly, the court will berequired to record finding as to the possibility of his committinga crime after grant of bail. However, such an offence in futuromust be an offence under the Act and not any other offence.Since it is difficult to predict the future conduct of an accused, thecourt must necessarily consider this aspect of the matter havingregard to the antecedents of the accused, his propensities and thenature and manner in which he is alleged to have committed theoffence.

45. It is, furthermore, trite that for the purpose of considering anapplication for grant of bail, although detailed reasons are notnecessary to be assigned, the order granting bail mustdemonstrate application of mind at least in serious cases as towhy the applicant has been granted or denied the privilege of bail.

B46. The duty of the court at this stage is not to weigh the evidencemeticulously but to arrive at finding on the basis of broadprobabilities. However, while dealing with special statute likeMCOCA having regard to the provisions contained in sub-section(4) of Section 21 of the Act, the court may have to probe into thematter deeper so as to enable it to arrive at finding that theCmaterials collected against the accused during the investigationmay not justify judgment of conviction. The findings recordedby the court while granting or refusing bail undoubtedly would betentative in nature, which may not have any bearing on the meritof the case and the trial court would, thus, be free to decide theDcase on the basis of evidence adduced at the trial, without in anymanner being prejudiced thereby.

47. In Kalyan Chandra Sarkar v. Rajesh Ranjan[13] this Courtobserved: (SCC pp. 537-38, para 18)

‘18. We agree that conclusive finding in regard to the pointsurged by both the sides is not expected of the courtconsidering bail application. Still one should not forget, asobserved by this Court in the case Puran v. Rambilas[14]: (SCCp. 344, para 8)

‘Giving reasons is different from discussing merits ordemerits. At the stage of granting bail detailed examinationof evidence and elaborate documentation of the merits of thecase has not to be undertaken. … That did not mean that whilstgranting bail some reasons for prima facie concluding why bailwas being granted did not have to be indicated.’

We respectfully agree with the above dictum of this Court.We also feel that such expression of prima facie reasons forgranting bail is requirement of law in cases where such

13 (2004) 7 SCC 528

14 (2001) 6 SCC 338H

orders on bail application are appealable, more so because ofAthe fact that the appellate court has every right to know thebasis for granting the bail. Therefore, we are not in agreementwith the argument addressed by the learned counsel for theaccused that the High Court was not expected even toindicate prima facie finding on all points urged before it whileBgranting bail, more so in the background of the facts of thiscase where on facts it is established that large number ofwitnesses who were examined after the respondent wasenlarged on bail had turned hostile and there are complaintsmade to the court as to the threats administered by therespondent or his supporters to witnesses in the case. In suchCcircumstances, the Court was duty-bound to apply its mind tothe allegations put forth by the investigating agency and oughtto have given at least prima facie finding in regard to theseallegations because they go to the very root of the right of theaccused to seek bail. The non-consideration of these vital factsDas to the allegations of threat or inducement made to thewitnesses by the respondent during the period he was on bailhas vitiated the conclusions arrived at by the High Court whilegranting bail to the respondent. The other ground apart fromthe ground of incarceration which appealed to the High Courtto grant bail was the fact that large number of witnesses areEyet to be examined and there is no likelihood of the trialcoming to an end in the near future. As stated hereinabove,this ground on the facts of this case is also not sufficient eitherindividually or coupled with the period of incarceration torelease the respondent on bail because of the seriousFallegations of tampering with the witnesses made against therespondent.’

ABCD

48. In Jayendra Saraswathi Swamigal v. State of T.N.[15] thisCourt observed: (SCC pp. 21-22, para 16)

‘16. … The considerations which normally weigh with the courtin granting bail in non-bailable offences have been explainedby this Court in State v. Capt. Jagjit Singh[16] and GurcharanSingh v. State (Delhi Admn.)[17] and basically they are — the15 (2005) 2 SCC 1316 (1962) 3 SCR 62217 (1978) 1 SCC 118

Anature and seriousness of the offence; the character of theevidence; circumstances which are peculiar to the accused; areasonable possibility of the presence of the accused not beingsecured at the trial; reasonable apprehension of witnessesbeing tampered with; the larger interest of the public or theState and other similar factors which may be relevant in theBfacts and circumstances of the case.’ “

18. priori, the exercise to be undertaken by the Court at thisstage - of giving reasons for grant or non-grant of bail - is markedlydifferent from discussing merits or demerits of the evidence. Theelaborate examination or dissection of the evidence is not required to beCdone at this stage. The Court is merely expected to record finding onthe basis of broad probabilities regarding the involvement of the accusedin the commission of the stated offence or otherwise. From the analysisof the impugned judgment, it appears to us that the High Court hasventured into an area of examining the merits and demerits of theDevidence. For, it noted that the evidence in the form of statements ofwitnesses under Section 161 are not admissible. Further, the documentspressed into service by the Investigating Agency were not admissible inevidence. It also noted that it was unlikely that the document had beenrecovered from the residence of Ghulam Mohammad Bhatt till 16[th]August, 2017 (paragraph 61 of the impugned judgment). Similarly, theEapproach of the High Court in completely discarding the statements ofthe protected witnesses recorded under Section 164 of Cr.P.C., on thespecious ground that the same was kept in sealed cover and was noteven perused by the Designated Court and also because reference tosuch statements having been recorded was not found in the charge-Fsheet already filed against the respondent is, in our opinion, in completedisregard of the duty of the Court to record its opinion that theaccusation made against the concerned accused is prima facie true orotherwise. That opinion must be reached by the Court not only inreference to the accusation in the FIR but also in reference to thecontents of the case diary and including the charge-sheet (report underGSection 173 of Cr.P.C.) and other material gathered by the InvestigatingAgency during investigation. Be it noted that the special provision,Section 43D of the 1967 Act, applies right from the stage of registrationof FIR for offences under Chapters IV and VI of the 1967 Act until theconclusion of the trial thereof. To wit, soon after the arrest of the

accused on the basis of the FIR registered against him, but before filingof the charge-sheet by the Investigating Agency; after filing of the firstcharge-sheet and before the filing of the supplementary or final charge-sheet consequent to further investigation under Section 173(8) Cr.P.C.,until framing of the charges or after framing of the charges by the Courtand recording of evidence of key witnesses etc. However, once chargesare framed, it would be safe to assume that very strong suspicion wasfounded upon the materials before the Court, which prompted the Courtto form presumptive opinion as to the existence of the factualingredients constituting the offence alleged against the accused, to jus-tify the framing of charge. In that situation, the accused may have toundertake an arduous task to satisfy the court that despite the framingof charge, the materials presented along with the charge-sheet (reportunder Section 173 of Cr.P.C.), do not make out reasonable grounds forbelieving that the accusation against him is prima facie true. Similaropinion is required to be formed by the Court whilst considering theprayer for bail, made after filing of the first report made under Section173 of the Code, as in the present case.19. For that, the totality of the material gathered by theInvestigating Agency and presented along with the report and includingthe case diary, is required to be reckoned and not by analysing individualpieces of evidence or circumstance. In any case, the question ofdiscarding the document at this stage, on the ground of beinginadmissible in evidence, is not permissible. For, the issue of admissibilityof the document/evidence would be matter for trial. The Court mustlook at the contents of the document and take such document intoaccount as it is.

20. The question is whether there are reasonable grounds forbelieving that the accusations made against the respondent (AccusedNo.10) are prima facie true. That will have to be answered keeping inmind the totality of materials including the one presented along with thepolice report. Be it noted that the prosecution is relying on severaldocuments forming part of the first charge-sheet (pending furtherinvestigation) filed against the respondent (Accused No.10) allegedlyshowing his involvement in the commission of the stated offences.Reference has been made to some of the crucial documents mentionedin the chart handed over to the Court by the appellant. The same, interalia, read thus:

1094SUPREME COURT REPORTS[2019] 5 S.C.R.ANIA CASE NO.RC-10/2017/NIA/DLITERROR FUNDING IN JAMMU & KASHMIREVIDENCES FILED WITH CHARGE-SHEET(Excluding Supplementary Charge sheet)BAgainst Accused Zahoor Ahmed Shah Watali (A-10)ExhibitDetails of DocumentsD-1Order no.11011/26/2017-IS.IV, dated 30.05.2017 of Sh. N.S. Bisht, Under Secretary, GOI, MHA, New Delhi.D-2FIR No.RC-10/2017/NIA/DLI dated 30.05.2017, PS NIA New Delhi.CD-3Seizure memo dated 03.06.2017 in respect of search and recovery of articles/documents seized from the premises of accused Zahoor Ahmed Shah Watali (A-10). D-3aIncome Tax Returns of Three Star Enterprises seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. D-3bIncome Tax Returns of Trisons Farms and Construction Pvt. Ltd. Dseized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017.D-3cAcknowledgment ITR-4 of Yamin Zahoor Shah seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. D-3dAcknowledgment ITR-4 of Yawar Zahoor Shah seized from the Epremises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017.D-3eIncome Tax Returns of M/s Three Y seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. D-3fIncome Tax Returns in respect of Yasir Enterprises seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated F03.06.2017. D-3gOne blue colour small pocket diary seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017.D-3hOne blue booklet containing I.D.D Codes and Phone numbers seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. GD-3iA bunch of papers related to Pakistan Steel Mill Corp. Ltd. seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017.D-3jA bunch of papers containing Court documents related to Zahoor Ahmad Shah Watali seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017.

D-3kA bunch of papers containing Misc. documents related to Zahoor Ahmed Shah seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017.D-3lA bunch of papers containing various letter heads related to Zahoor Ahmad seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. D-4Production cum Seizure Memo dated 03.06.2017 regarding the seizure of documents/articles from the office of accused Zahoor Ahmad Shah Watali (A-10) i.e. Trison Farms and Construction Pvt. Ltd. D-4aCopies of documents related to N.Z. International, Yasir Enterprises, Trison Farms & Construction, Trison International, Trison Power Pvt. Ltd., M/s 3Y, Kashmir Veneer Industry along with Passport details of Zahoor Ahmad Shah Watali (A-10) and his family members seized from the office of accused Zahoor Ahmad Shah Watali i.e. Trison Farms and Construction Pvt. Ltd.D-4bCopy of order number DMS/PSA/37/2011 dated 28.09.2011 issued by District Magistrate Srinagar regarding detention of one Tariq Ahmad Khan @ SanjMolvi seized from the office of accused Zahoor Ahmed Shah Watali (A-10) i.e. Trison Farms and Construction Pvt. Ltd. D-6cOne blue Colour Diary “Evergreen Traders” seized from the premises of accused Altaf Ahmad Shah @ Fantoosh (A-4) on 03.06.17. D-6eA press Note containing anti India talks seized from the premises of accused Altaf Ahmad Shah @ Fantoosh (A-4) on 03.06.17. D-6f program issued on 04.08.2016 under the signature of Syed Ali Shah Geelani, Chairman, All Party Hurriyat Conference seized from the premises of accused Altaf Ahmad Shah @ Fantoosh (A-4) on 03.06.17. D-6gOne paper containing details of amount received from chairman and others showing an amount of Rs.1,15,45,000/- seized from the premises of accused Altaf Ahmad Shah @ Fantoosh (A-4) on 03.06.17. D-7aTwo letters dated 10.03.2006 and 17.03.2006) written by the Area Commander of Hizbul Mujahideen (HM) to accused Nayeem Khan (A-5) seized from the house of accused nayeem Khan dated 03.06.2017. D-7bLetter heads of proscribed terrorist organization Lashkar Toiba (LeT), Jammu & Kashmir seized from the house of accused Nayeem Khan (A-5) dated 03.06.2017. D-7cLetter written to Pakistan Embassy by accused Nayeem Khan (A-5) for recommending Visa to visit Pakistan seized from the house of accused Nayeem Khan dated 03.06.2017.

[2019] 5 S.C.R.

AD-7dLetter heads of National Front containing pro Pak and anti-India talks in urdu seized from the house of accused Nayeem Khan (A-5) dated 03.06.2017.D-7eOne letter head of Mujahidin Jammu & Kashmir seized from the house of accused Nayeem Khan (A-5) dated 03.06.2017.BD-7gA bunch of hand written and printed papers containing recommendation Letters written to Pakistan Embassy for Visa for students etc. seized from the house of accused Nayeem Khan (A-5) dated 03.06.2017.D-9aHand written (Urdu) letters from LeT on the letter head titled as “Lashkar-e-Tuibah Jammu Kashmir Head Office CMuzafarabad.” seized from the house of accused Shahid-ul-Islam @ AftabHilali Shah (A-3) on 03.06.2017.D-9bA photograph of Aftab Hilali Shah @ Shahid-ul-Islam holding AK-47 with other cadres seized from the residence of AftabHilali Shah @ Shahid-Ul-Islam (A-3) on 03.06.2017. D-9cPhograph of Aftab Hilali Shah @ Shahid-ul-Islam (A-3) with DProscribed terrorist organization Hizbul Mujahiddin Chief Syed Salahuddin (A-2) seized from the residence of AftabHilali Shah @ Shahid-Ul-Islam (A-3) on 03.06.2017. D-9d04 hand written loose papers seized from the residence of AftabHilali Shah @ Shahid-Ul-Islam (A-3) on 03.06.2017. D-9eOne letter head in respect of All Parties Hurriyat Conference Eaddressed to Deputy High Commissioner, High Commission of Pakistan New Delhi from Media advisor APHC, Advocate Shahidul Islam for issuing the Visa seized from the residence of Aftab Hilali Shah @ Shahid-Ul-Islam (A-3) on 03.06.2017.D-9gList of active militants (year 2016-17) of different outfits in the valley seized from the residence of Aftab Hilali Shah @ FShahid-Ul-Islam (A-3) on 03.06.2017. D-11dThe photocopy of the hand written letter written by Afzal Guru to SAS Geelani seized from the premises of Mohd. Akbar Khandey @ Ayaz Akbar (A-7) on 04.06.17.D-19Letter no.22/NIA/CIV/CR/17/6547 dated 12.07.2017 from Sh. Kulbir Singh, AIG (CIV), PHQ, J&K Srinagar in reply NIA Letter No. RC-10/2017/NIA providing details pertaining to Gcase RC-10/2017 to CIO NIA.D-20Scrutiny report of Inspector Vinay Kumar related to 07 CDs received vide letter no. 22/NIA/CIV/CR/17/6547 dated 12.07.2017 from PHQ, J&K Srinagar along with photo album.

D-42Letter dated 27.06.2017 from TV Today Network Ltd. India Today Group Mediaplex, Film City, Sector 16A, Noida to CIO, NIA forwarding exact, true and correct copy of India Television’s raw footage. D-43Letter no. RC-10/2017/NIA/DLI/7831 dated 14.06.2017 to DG, BSF, Lodhi Road, New Delhi for providing details of Bstone-pelting, burning of schools & college buildings and damage to Govt. property as reported in Kashmir Valley since July, 2016. D-44Letter no. 26/Kmr/Ops(B)W/BSF/17/18758 dated 2/3 August 2017 from Director General, BSF (Ops Directorate), New Delhi to CIO, NIA details of stone-pelting, burning of schools & college buildings and damage to Govt. property as reported Cin Kashmir Valley since July, 2016. D-63Letter dated 28.08.2017 from Nodal Officer Vodafone, New Delhi to CIO NIA forwarding certified copies of CDR, CAF and 65B Certificate in respect of mobile Nos. [REDACTED] & [REDACTED]. D-65Letter dated 01.12.2017 from Nodal Officer, Reliance Jio DInfocomm. Ltd., Delhi to CIO, NIA forwarding certified copies of CDR, CAF and 65B Certificate in respect of mobile nos. [REDACTED], [REDACTED] & [REDACTED]. D-70The transcripts of the audio-video of sting operation by the reporters of India Today related to accused Mohd. Nayeem Khan (A-5). ED-71The transcripts of the audio-video of sting operation by the reporters of India Today related to accused Farooq Ahmad Dar @ Bitta Karate (A-6). D-75Letter No. 22/NIA-III/CIV/CR/17/10275-76 dated 23.09.2017 from Sh. Kulbir Singh AIG (CIV), J&K PHQ, Srinagar to CIO NIA forwarding details of accused persons of the case. D-127Letter No. I&O/IMS/T-ACT/3/2015 NIA/10011 dated F03.08.2017 from Sh. Vishwas Kumar Singh, (W-196), ASP, I&O, NIA New Delhi to CIO, NIA.D-130Seizure memo dated 16.08.2017 in respect of search and seizure of articles/documents found from the premises of Ghulam Mohd. Rather@Gulla (W-29). D-132Seizure memo dated 16.08.2017 in respect of search and Gseizure of articles/documents found from the premises of Ghulam Mohd. Bhatt (W-29).D-132aVarious miscellaneous papers related financial transactions seized from the premises of Ghulam Mohd. Bhatt (W-29) on 16.08.2017.

DEF

1098SUPREME COURT REPORTS[2019] 5 S.C.R.AD-132bOne small diary title Arun (11) Notes Pad seized from the premises of Ghulam Mohd. Bhatt (W-29) on 16.08.2017. D-132cOne green colour diary of 2009 seized from the premises of Ghulam Mohd. Bhatt (W-29) on 16.08.2017. D-132eOne brown colour diary of 2010 seized from the premises of BGhulam Mohd. Bhatt (W-29) on 16.08.2017.D-132fOne dark brown colour diary mark Frankford (A division of Ultramark group) seized from the premises of Ghulam Mohd. Bhatt (W-29) on 16.08.2017. D-133Seizure memo dated 16.08.2017 in respect of search and seizure of articles/documents found from the premises of Ghulam Mohd. CBhatt@Mohd. Akbar (W-29).D-135Seizure memo dated 16.08.2017 in respect of search and seizure of articles/documents found from the premises of Dr. Peerzada Kaiser Habeeb Hakeem. D-135aOne transparent file folder of Trison International group of Dcompanies seized from the premises of Dr. Peerzada Kaiser Habeeb Hakeem on 16.08.2017. D-135bOne orange colour file folder of account statement of M/s Three Star Enterprises for the year of 2005-06 seized from the premises of Dr. Peerzada Kaiser Habeeb Hakeem on 16.08.2017. D-135cOne Khaki colour folder of Johar Enterprises stamp paper file Eno.47/P seized from the premises of Dr. Peerzada Kaiser Habeeb Hakeem on 16.08.2017. D-137Seizure memo dated 26.08.2017 in respect of search and seizure of articles/documents found from the office of Zahoor Ahmad Shah Watali (A-10) i.e. Trison Farms and Construction Pvt. Ltd.D-137aOne ledger and cash book of Trison Farms and construction Pvt. FLtd. Baba Dharam Das Complex, Khayam Srinagar for the year 2010-11 seized from the office of Trison farms and construction private Limited on 26.08.2017.D-137bOne ledger and cash book of M/S Yasir Enterprises, Baghat Barzullah, Sanat Nagar, Srinagar for the year of 2010-11 seized Gfrom the office of Trison farms and construction private Limited on 26.08.2017. D-137cOne ledger and cash book of M/S Three Y, Sanat Nagar, Srinagar for the year 2010-11 seized from the office of Trison farms and construction private Limited on 26.08.2017.

[2019] 5 S.C.R.

D-137bOne ledger and cash book of M/S Yasir Enterprises, Baghat Barzullah, Sanat Nagar, Srinagar for the year of 2010-11 seized from the office of Trison farms and construction private Limited on 26.08.2017.

D-137cOne ledger and cash book of M/S Three Y, Sanat Nagar, Srinagar for the year 2010-11 seized from the office of Trison farms and construction private Limited on 26.08.2017.

D-137dOne ledger and cash book of M/S Tirson International for the year 2010-11 seized from the office of Trison farms and construction private Limited on 26.08.2017. D-137fA bunch of documents related to Enforcement Directorate seized from the office of Trison farms and construction private Limited on 26.08.2017.D-154Letter report no. CFSL-2017/D-993/3953 dated 06.11.2017 from CFSL, (CBI), Lodhi Road, New Delhi to CIO NIA containing handwriting examination report alonwith original seizure seized from the house of Ghulam Mohd. Bhat r/o Tarahama.D-167Memoramdum for specimen voice sample in respect of accused Mohd. Nayeem Khan (A-5) dated 31.07.2017.

D-168Memorandum for specimen voice smaple in respect of accused Farooq Ahmed Dar @ Bitta Karate (A-6) dated 31.07.2017.

D-169Letter No. I&O/IMS/DE/33/2017/NIA dated 29.11.2017 from, Inspector, IMS, NIA New Delhi to CIO NIA alongwith transcripts of conversation and videos.D-183Technical analysis report in respect of accused Farooq Ahmad Dar @ Bitta Karate (A-6) forwarded vide Inter office note No.RC-10/2017/NIA/DLI/reports/1351 dated 10.12.2017. D-184Report on Protest calendar taken out from the open source alongwith source path forwarded vide Inter office note No.RC-10/2017/NIA/DLI/reports/1351 dated 10.12.2017.D-197Letter No.D.III.a/2017-Ops (NIA) dated 25.07.2017 from 2 I/C (Ops/Int.), Office of Inspector General CRPF, Brein Nishat, Srinagar, J&K to CIO NIA. D-204Original agreement documents between M/s Trison Farms and Mr. Nawal Kishore Kapoor dated 07.11.2014. D-205Notice under section 43 (F) UA(P) Act dated 30.11.2017 to Nawal Kishore Kapoor (W-28) for furnishing information/document from Insp T TBhutia, NIa, New Delhi. D-206Reply dated 4.12.201of Notice under section 43(f) of UA(P) Act dated 30.11.2017 from Nawal Kishore Kapoor (W-28).

AD-207Notice to witness under Section Cr.P.C.& 43 (F) of UA (P) Actdated 07.11.2017 to CVO, SBI, Mumbai to provide bank account details of account no.274724019 of Nawal Kishore Kapoor (W-28) from Sh Jyotiraditya, DC. D-208Letter No. Gen/2017-18/46 dated 18.11.2017 from Asst. General Manager, SBI NRI Branch, Jalandhar, Punjab forwarding certified copies of account opening form and account statement of account Bnumber 20074724019 of Nawal Kishore Kapoor (W-28). D-211 Letter No. F.No. ITO/W-3(4) Antg/2017-18/3540 dated 20.10.2017/11.12.2017 from Income Tax Officer, Anantnag containing income tax return details for last six years in respect of -accused Zahoor Ahmad Shah Watali (A10).D-212 Production cum receipt memo dated 17.11.2017 related to documents produced by Naval Kishore Kapoor (W-28) along with Cdocuments. D-220 Production cum Receipt Memo dated 14.12.2017 related to production of copy of text audit reports and audit financial statements of Ms. Trison Farms and Construction Pvt. Ltd. Etc. along with received documents. D-222 Inter office Note No.I&O/IMS/DE/33/2017/NIA/722 dated 17.01.2017 from Inspector S.K. Tyagi, IMS to CIO NIA forwarding 03 video clips Indentifying the voice of Hafiz Saeed Dalong certificate 65 of IEA. D-224 Letter No.F. No. T-3/1/FE/SRZO/2013 dated 12.12.17 from Sh. Sharad Kumar, (W -1) Assistant Director, Directorate of Enforcement, Government of India, Durani House Rajbagh, Srinagar to Sh. Ajeet Singh, SP NIA (W-229) forwarding alongwith enclosures therein proceedings against accused Zahoor -Ahmed Shah Watali (A10) under the FEMA Act.ED-248 Letter No. RC-10/2017/NIA/DLI/354 dated 11.01.2018 from Sh. Rajesh Kumar, Inspector NIA (W-209) to CIO forwarding of report on international linkage, India Hit report and report on Pakistani based Hurriyat representative along with 65-B Certificate. D-252 No. RC-10/2017/NIA/DLI/646 dated 15.01.2018 received from SI Sangram Singh, NIA (W-220) pertaining to transcripts of Fdownloaded videos.D-256 Letter No. RC-10/2017/NIA/DLI/5706 dated 26.12.2017 to GM (CM), Nodal Officer, BSNL, 4th Floor, Telephone Exchange, Trikuta Nagar, Near RBI Jammu, J&K from CIO NIA to provide CDRs, CAF and 65 Certificate of mobile nos. mentioned in the letter. D-257 Certified copies of CDRs, CAF and Form 65 of mobile numbers [REDACTED], [REDACTED], [REDACTED], [REDACTED], G[REDACTED], [REDACTED], [REDACTED] & [REDACTED] (BSNL J&K) received from BSNL, J&K. D-259 Letter of Nodal Officer Bharti Airtel Ltd. Forwarding certified copies of CDR, CAF of mobile numbers [REDACTED], [REDACTED], [REDACTED] & [REDACTED] alongwith certificate u/s 65B of Indian Evidence Act.”H(emphasis supplied in italics and bold)21. During the hearing, emphasis was placed by the learnedAttorney General on documents D-132, D-132(a)/23, D-3/6, D-3g/20,D-3h/28, D-3j to D-3j/5, D-9b, D-9c, D-154 and D-185/10. Besides thesedocuments, our attention was also invited to the statements of GhulamMohammad Bhatt (W-29) dated 30[th] August, 2017, and 23[rd] November,2017, as well as the redacted statements of protected witnesses (“Charlie”,“Romeo”, “Alpha”, “Gamma”, “Pie”, “Potter”, “Harry” and “xxx”)recorded under Section 164, which have now been taken on record bythe Designated Court in terms of order dated 11[th] January, 2019.Notably, the order passed by the Designated Court permitting redactionof those statements has not been assailed by the respondent. In ouropinion, the High Court, having noticed that the Designated Court hadnot looked at the stated statements presented in sealed cover, coupledwith the fact that the application under Section 44 filed by theInvestigating Agency was pending before the Designated Court, andbefore finally answering the prayer for grant of bail, should havedirected the Designated Court to first decide the said application and ifallowed, consider the redacted statements, to form its opinion as towhether there are reasonable grounds for believing that the accusationmade against the respondent is prima facie true or otherwise. For, interms of Section 43D, it is the bounden duty of the Court to peruse thecase diary and/or the report made under Section 173 of the Code and allother relevant material/evidence produced by the Investigating Agency,for recording its opinion. We could have relegated the parties before theHigh Court but the counsel appearing for the respondent, on instruc-tions, stated that the respondent would prefer to await the decision ofthe Designated Court and, depending on the outcome of the applicationunder Section 44 of the Act, would contest the proceedings before thisCourt itself. Accordingly, at the request of the respondent, we kept thepresent appeal pending. Since the Designated Court has finallydisposed of the application preferred by the Investigating Agency videorder dated 11[th] January, 2019, the correctness whereof has not beenchallenged by the respondent, the redacted statements of the concernedprotected witnesses have been taken on record.

22. Accordingly, we have analysed the matter not only in light ofthe accusations in the FIR and the charge-sheet or the police reportmade under Section 173, but also the documentary evidence andstatements of the prospective witnesses recorded under Sections 161

EFG

Aand 164, including the redacted statements of the protected witnesses,for considering the prayer for bail.

23. As regards the redacted statements, objection of therespondent was that the certificate given by the competent authority isnot in conformity with the certificate required to be given in terms ofBSection 164(4) of Cr.P.C. This objection has been justly countered bythe learned Attorney General with the argument that the objectionborders on the issue of admissibility of the said statements. We findforce in the submission that the issue regarding admissibility of thestatements and efficacy of the certificates given by the competent au-thority, appended to the redacted statements would be matter for trialCand subject to the evidence in reference to Section 463 of Cr.P.C. andcannot be overlooked at this stage. Viewed thus, the exposition in thecase of Ramchandra Keshav Adke (dead) by LRs. and Ors. Vs.Govind Joti Chavare and Ors.[18], in paragraph 25 of the reportedjudgment will be of no avail to the respondent.

24. After having analyzed the documents and the statementsforming part of the charge-sheet as well as the redacted statementsnow taken on record, we disagree with the conclusion recorded by theHigh Court. In our opinion, taking into account the totality of the reportmade under Section 173 of the Code and the accompanying documentsEand the evidence/material already presented to the Court, including theredacted statements of the protected witnesses recorded under Section164 of the Code, there are reasonable grounds to believe that theaccusations made against the respondent are prima facie true. Be itnoted, further investigation is in progress. We may observe that sincethe prayer for bail is to be rejected, it may not be appropriate for us toFdilate on matters which may eventually prejudice the respondent(Accused No.10) in any manner in the course of the trial. Suffice it toobserve that the material produced by the Investigating Agency thus far(pending further investigation) shows the linkage of the respondent(Accused No.10) with A-3, A-4, A-5 and A-6 and, likewise, linkagesGbetween the respondent (Accused No.10) and A-3 to A-12, as revealedfrom the CDR analysis. The Chart showing the inter-linkages of thenamed accused inter se and Chart showing the inter-linkages of thenamed accused with others and the frequency of their interaction onphone during the relevant period are as under:18 (1975) 1 SCC 559 = AIR 1975 SC 915H

1103ABCDEFGH

1104SUPREME COURT REPORTS[2019] 5 S.C.R.ABCDEFGH

25. The summing up of the outcome of the investigation done until

filing of the first report is noted in paragraph 17.10, which reads thus:

“17.10 SUMMING UP:

Hence, as has been discussed above, the investigation hasestablished that:-

1. The terrorist and Hurriyat leaders have close nexus with theactive militants, OGWs and stone-pelters in Kashmir Valley.They are closely coordinating with each other and have formeda terrorist gang to achieve their common goal of secession fromthe Union of India by way of an armed rebellion.

2. To fuel the secessionist activities, Pakistan is providing funds tothe Hurriyat leaders and the same are channelized throughHawala, LoC trade and other means. Sometimes, the fundsare provided directly by Pakistan High Commission in India.

3. Hurriyat has convenor/representative(s) in Pakistan who liaisewith Pakistan agencies and also with the Kashmir Cell of theISI, the United Jehad Council and the Jamaat-Ud-Dawah.

4. The benefits drawn out of the LoC trade are reaching theHurriyat leaders for fuelling the unrest in the Valley.

5. Funds are raised locally by way of collecting donations from thecommon people in the name of Zakat and Betul Maal.

6. The Hurriyat leaders are working in systematic and organizedmanner as per the instructions of their Pakistani handlers bysetting up network of their cadres at village level, block leveland District level.

7. The High Commission of Pakistan organizes functions andmeetings in New Delhi, to which the Hurriyat leaders fromKashmir are invited and they are given instructions and fundsso that the unrest in the Valley can be fuelled in an organizedmanner.

8. The Hurriyat leaders are raising funds from the Pakistaniestablishments/agencies in the name of helping the youthinjured/killed during the action of security forces.

A9. The families of the active militants and killed militants aresupported by the Hurriyat leaders financially, socially as wellas by arranging for the higher education of their wards inPakistan.

10. The Hurriyat leaders attend the funeral of killed militants,Beulogise them as ‘martyrs’, hail their anti-India activities as‘gallant’ and deliver speeches against the Government ofIndia and motivate the youth of Kashmir to join militancy forthe so-called freedom of Kashmir by way of an armed struggle.They misguide the common man by spreading falsepropaganda against the Government of India.

C11. To further this conspiracy, the Hurriyat leaders, the terrorists/terror organizations and stone-pelters are working in tandemand they are getting financial and logistic support fromPakistan.”

D26. The accusation and charge against the accused, including therespondent, is in paragraph 18 of the report which reads thus:

“18. CHARGE:

18.1 In the instant case, there is sufficient evidence in the formof incriminating documents, statements of witnesses and digitalevidence that establishes beyond any reasonable doubt that theaccused persons i.e. the Hurriyat leaders, terrorists andstone-pelters have been orchestrating violence and unrest in Jammu& Kashmir as part of well-planned conspiracy under the overallpatronage and financial support of Pakistani Establishment andagencies and that all the accused persons were acting inpursuance of their common goal i.e. to achieve secession of theState of Jammu & Kashmir from the Union of India by waging awar against the Government of India.

18.2 The documentary evidences seized during various searchessuch as letters of the banned terrorist organizations seekingfinancial assistance from the Hurriyat leaders, blank letterheadsof terror organisations, conversations between Hafiz Saeed @Burhan Wani, Hafiz Saeed and Asiya Andrabi, support extended

by Hafiz Saeed and Syed Salahuddin to the protest calendarsissued by the Hurriyat leaders, all these show that Hurriyat andterror organizations are working hand in glove. Their commonobjective is to attain secession of Jammu & Kashmir from theUnion of India and to achieve this objective, they haveestablished network of cadres throughout Kashmir Valley whomotivate and incite the youth to attack all symbols of Indianauthority, especially Indian security forces who have beendeployed there for the maintenance of law and order. To achievetheir objective, they are mobilizing funds from all possible sources.They are getting funds from Pakistani Establishment throughthe Pakistan High Commission; the funds are being remittedto India from offshore locations through hawala and accusedA-10 Zahoor Ahmad Shah Watali is an important conduit forthe same. They are raising funds through local donations such asZakaat & Betulmaal, etc. They are generating funds by resortingto illegalities and irregularities such as under-invoicing andcash-dealings in LoC barter trade. All this money is used to fundstone-pelting, to support the families of killed and active militantsand to help pellet victims and to fuel terrorism in Jammu &Kashmir with the ultimate objective of breaking Jammu &Kashmir away from the Union of India.

18.3 They are all working in sync to achieve their greater goal.The nexus between the Pakistani agencies, Hurriyat leaders andterror organizations is amply substantiated by the chats retrievedfrom their email accounts, WhatsApp, Facebook profiles andWebsites and also from the statements of the protected witnesses.

Their nexus with hawala conduit, Zahoor Watali is alsosubstantiated by the documentary and digital evidence.

18.4 Though the Constitution of Jammu & Kashmir, 1957,declares the State of Jammu & Kashmir to be an integral part ofIndia, and the said pronouncement is irrevocable, the accusedpersons have been incessantly engaged in violence and carryingout subversive and secessionist activities in Jammu & Kashmirby waging war against the Government of India.

18.5 Hence, as discussed in the foregoing paras, the evidencecollected during investigation, prima facie, establishes caseagainst all the accused persons for conspiring to wage war againstthe Government of India by way of establishing network ofcadres of banned terrorist organizations LeT & HM as well ascadres in the garb of so-called political front viz., the All PartiesHurriyat Conference.

18.6 The scrutiny of the documents and the recovery fromthe digital devices have provided large data ofincriminating material in which the above accused A-3 toA-12 are part of gang who with the help of A-1 & A-2 andothers collaborate and coordinate with each other to formstrategies and action plan to launch massive violent protests,hartaals, bandhs, strikes, processions, demonstrationsduring which stone pelting is organised on security forcesand government establishments. These documents and digitalevidences clearly indicates an action plan to instigate general publicto observe strikes, hold anti-India protests through press releases,social media and use of Immams and mosques. The recovery ofprotest calendars from A-4 and the direct impact of suchorchestrated protests have led to enormous loss of life and prop-erty which have been explained in detail.

18.7 The investigation have revealed linkage of A-1 and A-2with A-3 to A-12 in web of directions being passed throughe-mails, SMSs, WhatsApp, videos and other means of com-munication to form clear nexus between the above accusedand the leaders of Hurriyat Conference. The recovery of anumber of incriminating videos in which the separatists leadersand accused are exhorting the general public, sympathizing withthe militants, seeking support and donations to carry out militantactivities and instigating general public, especially youth to raise arevolt and launch violence against security forces and wage awar against Government of India, is clearly established.

18.8 The secessionists, especially the leaders of the HurriyatConference and the accused are part of the terrorist designs toraise funds to propagate their ideology and agenda of

secessionism and subversive activities prejudicial to the law ofthe land. The investigations have clearly brought out that theHurriyat has formed well-developed network of cadres withdistrict presidents, block level leaders and workers who collectdonations from public, businessmen, apple growers and draw gainsfrom profits of unregulated LoC trade. The money is routedthrough complex system of hawala transfers and cashcouriers using conduits such as A-10 who gathers money fromPakistan High Commission in New Delhi and through fakeand bogus companies floated in UAE and other countries anddelivers the funds to the Hurriyat leadership for subversiveactivities.

The documents recovered and statements of witnesses to thateffect also clearly establish the mechanism of funding andcomplicity of the accused in generating funds for its further use inorganizing violent protests, assistance to the militants andcreating an atmosphere of terror, chaos and uncertainty.

18.9 During the investigation about the past conduct of theaccused, it is ascertained that as A-1 is designated terroristbeing the head of proscribed terror organisation Lashker-e-Toiba,A-2 is the head of proscribed organisation Hizb-Ul-Mujahideen.A-3, A-4, A-5, A-6, A-8, A-9 are former militants with variouscases of terrorism against them and have been detained underthe Public Safety Act on numerous occasions. A-10 is knownhawala dealer and financer and has number of casesagainst him which are being investigated by sisterinvestigation agencies.

18.10 The CDR Linkages and technical analysis of socialmedia clearly establish that the accused A-3 to A-10 are inconstant communication with each other and there is clearmeeting of minds of the above accused in hatching theconspiracy with the support of A-1 and A-2 as well as othersecessionist leaders of the Hurriyat Conference and otherproscribed terrorist organizations of Jammu & Kashmir.

18.11 This case is terror conspiracy case in which the terroristact is not single act of terror like an incident or series of

incidents. It is terrorist act as defined under UA (P) Act-1967wherein the intention is to threaten the unity, integrity andsovereignty of India by striking terror in the people or any sectionof people in India by overawing by means of criminal force orshow of criminal force causing death of any public functionary orattempts to cause death of any public functionary. The terroristgang of the accused above, have also committed terrorist act asthey have disrupted the essential services and daily life of thecitizenry of Jammu & Kashmir and have caused damage anddestruction of property in India intended to be used in connectionwith any other purpose of the Government of India, any StateGovernment or any of their agencies.

18.12 The analysis of documentary evidences seized duringthe searches, the statement of witnesses and the incriminatingmaterial recovered from the digital media seized from theaccused clearly bring out the fact that with the active support andconnivance of Pakistani establishments, Pakistani agencies,terrorist groups operating from Pakistani soil, the above accusedhave hatched criminal conspiracy to engage in violence andcarry out subversive and secessionist activities in Jammu &Kashmir and to achieve their objectives, have established anetwork of cadres who are funded through Pakistani agenciesvia hawala dealers, local conduits and also by raising funds throughlocal donations and by generating illegal profits through the barterLoC trade. The accused have used these funds for organisedstone pelting through set charter of protests and demonstrationswhich are issued in the form of “protest calendars” on regularbasis resulting in an atmosphere of chaos, terror, uncertainty andfear in the State of Jammu & Kashmir. The main aim andobjective of this entire conspiracy is to secede the State of Jammu& Kashmir, which is an integral part of India, from the Union ofIndia and wage war against the Government of India to meet theobjectives.

18.13 Hence, the accused persons are liable for prosecutionunder the following sections of law:-

AName of Liable for prosecution under sections AccusedAccusedof lawA-1 Hafiz section 120B, 121, 121A &124A of IPC, Muhammad section 13, 16, 17, 18, 20, 38, 39 & 40 of Saeed Unlawful Activities (Prevention) Act, 1967. A-2 Mohd. Yusuf section 120B, 121, 121A & 124A of IPC, BShah @ Syed section 13, 16, 17, 18, 20, 38, 39 & 40 of Salahuddin Unlawful Activities (Prevention) Act, 1967. A-3Aftab Ahmad section 120B, 121, 121A & 124A of IPC, Shah @ Aftab section 13, 16, 17, 18, 20, 39 & 40 of Hilali Shah @ Unlawful Activities (Prevention) Act, Shahid-ul-Islam 1967. CA-4 Altaf Ahmad section 120B, 121, 121A & 124A of IPC, Shah @ Fantoosh section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-5 Nayeem Ahmad section 120B, 121, 121A & 124A of IPC, Khan section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, D1967. A-6 Farooq Ahmad section 120B, 121, 121A & 124A of IPC, Dar @ Bitta section 13, 16, 17, 18, 20, 39 & 40 of Karate Unlawful Activities (Prevention) Act, 1967. A-7 Md. Akbar section 120B, 121, 121A & 124A of IPC, Khanday section 13, 16, 17, 18, 20, 39 & 40 of EUnlawful Activities (Prevention) Act, 1967. A-8 Raja section 120B, 121, 121A & 124A of IPC, Mehrajuddin section 13, 16, 17, 18, 20, 39 & 40 of Kalwal Unlawful Activities (Prevention) Act, 1967. A-9 Bashir Ahmad section 120B, 121, 121A & 124A of IPC, FBhat @ Peer section 13, 16, 17, 18, 20, 39 & 40 of Saifullah Unlawful Activities (Prevention) Act, 1967. A-10 Zahoor Ahmad section 120B, 121, 121A & 124A of IPC, Shah Watali section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities(Prevention) Act,1967. GA-11 Kamran Yusuf section 120B, 121 & 121A of IPC, section 13, 16, 18 & 20 of Unlawful Activities (Prevention) Act, 1967. A-12 Javed Ahmad section 120B, 121 & 121A of IPC, Bhat section 13, 16, 18 & 20 of Unlawful Activities (Prevention) Act, 1967.

A18.14 The sanction for prosecution under section 45(1)(i)(ii) ofthe UA (P) Act in respect of the accused persons for theoffences under section 13, 16, 17, 18, 20, 38, 39 and 40 of the UA(P) Act and under section 196 CrPC for the offences undersection 121, 121A and 124A of IPC has been accorded by theMinistry of Home Affairs, Government of India vide orderBNo.11011/26/2017/IS-IV dated 16[th] January, 2018. The sanctionfor prosecution under section 188 CrPC has also been accordedby Government of India vide order No.11011/26/2017/IS-IV dated16[th] January, 2018 for the offences committed outside of India.

18.15 It is therefore, prayed that, the Hon’ble Court may pleaseCtake cognizance of the offences under sections 120B, 121, 121A& 124A of the IPC, sections 13, 16, 17, 18, 20, 38, 39 & 40 of theUnlawful Activities (Prevention) Act, 1967 in respect of theaccused A-1 to A-12 (As per the mentioned in para 18.13), issueprocess to the accused persons and try the aforesaid accusedDpersons and punish them in accordance with law.”

(emphasis supplied in italics and bold)

27. The charge against respondent is not limited to Section 17 ofthe 1967 Act regarding raising funds for terrorist acts but also inreference to Sections 13,16,18,20,38,39 and 40 of the 1967 Act. SectionE13 is in Chapter II of the 1967 Act. The special provisions regarding bailunder Section 43D(5), however, are attracted in respect of the offencespunishable under Chapters IV and VI, such as Sections 16,17,18,20,38,39and 40 of the 1967 Act. Sections 39 and 40 form part of Chapter VI,whereas other sections (except Section 13) form part of Chapter IV toFwhich the subject bail provisions are applicable, mandating the recordingof satisfaction by the Court that there are reasonable grounds forbelieving that the accusation against such person is prima facie true.28. Reverting to the documents on which emphasis has beenplaced, document D-132 is the Seizure Memo of properties seized fromGthe premises of Ghulam Mohammad Bhatt (W-29), the then Munshi/Accountant of the respondent (Accused No.10). Document D-132(a)is the green page document, seized during the search of the residence ofsaid Ghulam Mohammad Bhatt, containing information about foreigncontributions and expenditures of the respondent (Accused No.10)during 2015/2016. Whether this document is admissible in evidence would

be matter for trial. Be that as it may, besides the said document, thestatement of Ghulam Mohammad Bhatt (W-29) has been recorded on30[th] August, 2017 and 1[st] November, 2017. Whether the credibility ofthe said witness should be accepted cannot be put in issue at this stage.The statement does make reference to the diaries recovered from hisresidence showing transfer of substantial cash amounts to differentparties, which he has explained by stating that cash transactions werelooked after by the respondent (Accused No.10) himself. He hadadmitted the recovery of the green colour document from his residence,bearing signature of the respondent (Accused No.10) and mentioningabout the cash amounts received and disbursed during the relevantperiod between 2015 and 2016. The accusation against the respondent(Accused No.10) is that accused A-3 to A-10 are part of the All PartiesHurriyat Conference which calls itself political front, whereas theiragenda is to create an atmosphere conducive to the goal of cessation ofJ & K from the Union of India. The role attributed to the respondent(Accused No.10) is that of being part of the larger conspiracy and to actas fund raiser and finance conduit. Ample material has been collectedto show the linkages between the Hurriyat leaders of the J & K andterrorists/terrorist organizations and their continuous activities to wagewar against Government of India. Regarding the funding of terroristactivities in J & K and, in particular, the involvement of the respondent(Accused No.10), the charge-sheet mentions as under:

“17.6 Funding of Secessionist and Terrorist Activities inJammu & Kashmir:

If publicity and propaganda is oxygen for the terror groups, terrorfinancing is its life-blood. Terror financing provides funds forrecruitment, operationalization of training and training camps,procurement of arms and ammunition, operational cost ofplanning and resources for terrorist acts, running of undergroundnetworks, well-planned stone pelting, school burnings, targetedattacks, provision of legal support for terrorists and over-groundworkers facing judicial process, ex-gratia payment for militantskilled in terrorist operations, regular payments to the families ofterrorists and militants killed or convicted, funds for propagandato clergy as well as relief measures for civilian population andalso in case of natural disasters. The investigation in the case hasrevealed that the secessionists are mobilizing funds from all

possible sources to fuel unrest and support the on-goingsecessionist and terrorist activities in Jammu & Kashmir.

17.6.1 Funding from Pakistan:

i) The Hurriyat leaders are receiving funds from Pakistan throughconduits and also from the Pakistan High Commission directly. Itwas substantiated by an incriminating document seized fromthe house of Ghulam Mohd. Bhatt druing search. GhulamMohd. Bhatt worked as the cashier-cum-accountant withaccused A-10 Zahoor Ahmad Shah Watali, known Hawalaconduit. The document clearly shows that accused A-10Zahoor Ahmad Shah Watali was receiving money fromAccused A-1 Hafiz Saeed (Head of Jamaat-ud-Dawa), fromthe ISI, from the Pakistan High Commission at New Delhiand also from source based in Dubai. Accused A-10 wasremitting the same to the Hurriyat leaders, separatists andstone-pelters of Jammu & Kashmir. The said document hasbeen maintained in regular course of his business and is signedby accused Zahoor Watali himself. This document clearlyshows that Hurriyat leaders were receiving funds fromPakistan through the officials of Pakistan High Commissionand through accused A-10 Zahoor Watali.

The signature of Accused A-10 Zahoor Watali has also beenverified and as per the expert report, his signature on thequestioned document matches with his specimenhandwriting as well as his admitted handwriting.

ii) Further, the role of Pakistan in funding secessionist activitiesalso surfaced in the scrutiny of the un-edited version of theaudio/video furnished by the office of India Today T.V. NewsChannel wherein accused A-5 Nayeem Khan admits that thesecessionists and terrorists of the Valley are receiving financialsupport from Pakistan and would have received approximatelyRs.200 crores to organise anti-India protests and agitations afterthe killing of Burhan Wani, the Commander of the proscribedterror organisation Hizb-ul-Mujahiddin. He further speaks aboutfunds reaching them from Saudi Arabia/Dubai through Hawalavia Delhi (Balimaran/Chandni Chowk). He admits that S.A.S.Geelani (Chairman, APHC-G), Mirwaiz Umar Farooq(APHC-M) and Yasin Malik (JKLF) are receiving funds from

Pakistan. He further admits the pivotal role played by thePakistan High Commission to convey and receive instructionsfrom Pakistan. Nayeem Khan also stated that the accused HafizMohd Saeed has supported S.A.S. Geelani, Chairman,APHC-G by paying at least 10-12 crores during anti-Indiaagitation after killing of Burhan Wani. Accused Nayeem Khanfurther admitted that, if funded, he can fuel unrest in the Valleyany time.

iii) Similarly, the scrutiny of the audio/video of the stingoperation also reveals accused A-6 Farooq Ahmad Dar BittaKarate admitted that the funds are being sent by Pakistanto the secessionists and terrorists in the Kashmir Valleyincluding him for organizing forcible closures, anti-India protestsand processions and stone-pelting on the security forces. Hefurther claimed that he has his cadres in every part of Kashmirwho can act on his call at any given point of time and fuel unrestin the Valley. When given an offer of financial support, accusedBitta Karate put forth demand of Rs.70 crores for fuellingunrest upto six months.

The voice samples of Nayeem Khan and Farooq Ahmad Dar@ Bitta Karate have been forensically examined and the CFSLreport has confirmed the match with their voices.

iv) Further, the investigation has revealed that the senior-mostofficials of the High Commission of Pakistan were in regular con-tact with the Hurriyat leaders. The High Commission of Pakistanin New Delhi used to organise functions and meetings in NewDelhi, to which the Hurriyat leaders from Kashmir were invitedand they were given instructions and funds on regular basis.These funds were given to various allied groups of the APHCand investigation have revealed that First Secretary levelofficer of Pakistan High Commission in New Delhi would actas channel and A-10 Zahoor Ahmed Shah Watali would actas courier to deliver the funds to the Hurriyat leadership.These funds as explained above were used to foment thesecessionist and separatist activities and unrest in the valleyin an organized manner. One such invitation card from thePakistan High Commission was seized from the house of A-6Farooq Ahmad Dar @ Bitta Karate:-

On the occasion of the National DayPakistan High Commissioner andMrs. Salman BashirRequest the pleasure of the company ofMr. Farooq Ahmed DarAt Reception

on Friday, 22 March 2013 from 1930 to 2100 hrs.

Venue: R.S.V.P.2/50-G, Shantipath, Tel. 011-24121819Chanakyapuri, New Delhi Fax 011-26872339Dress:National/Lounge Suit/Uniform E-mail:[REDACTED]

(Please bring this card with you)

Investigation has also established that the accused A-4 was indirect contact with the High Commissioner of Pakistan in NewDelhi and would apprise him about the situation in Jammu &Kashmir.

17.6.2 Funding from Terrorist Organisations based inPakistan:

During the course of investigation, it is also ascertained that theseparatists and secessionists of Jammu & Kashmir were alsoreceiving money from the terrorists and terrorist organizationsoperating out of Pakistan/PoK. The incriminating documentseized from the house of Ghulam Mohd. Bhatt who workedas cashier-cum-accountant with accused A-10 ZahoorWatali shows that Zahoor Watali received money fromaccused A-1 Hafiz Saeed, Head of JuD and Chief ofproscribed terror organisation Lashkar-e-Toiba and remit-ted it to the Hurriyat leaders espousing the cause of seces-sion of Jammu & Kashmir from the Union of India.

17.6.3 Local Donations/Zakat/Baitulmal:

During the course of investigation, it is established that the Hurriyathas its network of cadres at districts and local levels. There areDistrict Presidents and block level leaders who have theresponsibility to raise the funds through donation during thereligious festivals and month of Ramzan. In well-established

system, the receipt books are printed and funds are collected fromshopkeepers, businessmen and residents of Kashmir. The moneyis also collected to become member of the Tehreek-e-Hurriyat.Selected members are made as Rukuns and are tasked topropagate the separatist ideology of Hurriyat. These Rukuns actas foot soldiers and ensure that bandhs and hartaals aresuccessful. They also lead the processions and participate in stonepelting.

Investigation also established that various District Presidentscollect Rs.5 to 10 Lac per district as Baitulmal. Funds are alsocollected from apple-growers and businessmen who are compelledto donate to Hurriyat central office. This money is used foradministrative and operational purposes of organizing protests andstrikes as well as for aid to militants and their families.

The seizure of unaccounted receipts of an amount ofRs.1,15,45,000/- from accused A-4 Altaf Ahmad Shah Fantooshalso shows that money is being raised by way of donations.Similarly, records pertaining to the collection of funds were alsoseized from the house of accused A-8 Mehrajuddin Kalwal, whowas also the District President of Tehreek-e-Hurriyat for Srinagarand Ganderbal.

Further, during the course of investigation, it is also establishedthat the Hurriyat leadership appeals to the public to contributemoney generously by way of donations for their so-calledfreedom movement. This is clearly reflected in the Website ofthe Hurriyat Conference viz. www.huriyatconference.com,which shows message from S.A.S. Geelani “Help thefamilies of martyrs and prisoners….. people should comeforward for donations in the month of Ramadan as thenumber of people affected by this movement is large”.

This substantiates that Hurriyat is raising funds throughdonations and using the same to fuel secessionist activities andto support the families of killed and jailed terrorists.

17.6.4 LOC Trade:

During the course of investigation, it has been established that thesecessionist and separatist leaders are raising funds through LoC

trade by way of directing the Kashmiri traders to dounder-invoicing of the goods which were imported through LoCbarter trade. They sell the goods to the traders in Delhi and partof the profit of the same is shared with the Hurriyat leaders andother separatists, which in turn is used on anti-India propaganda,for mobilizing the public to organise protests and stone-peltingand to support families of killed/jailed militants. The hawalaoperators based in Srinagar, New Delhi and other parts of thecountry and abroad are being used to transfer the funds sogenerated. The investigation has revealed that the funds aregenerated by resorting to sale of third-party goods,under-weighing, under-invoicing, large-scale dealings in cash andcommitting irregularities in maintenance of records. Thismodus-operandi leads to generation of huge cash surpluses onthe Indian side which are then channelized through severalformal banking channels as well as cash couriers and hawaladealers to the separatists and secessionists active in Jammu &Kashmir.

Investigation has revealed that significant number of tradersengaged in cross LoC trade have relatives across the border whoare closely associated with banned terrorist organizations,especially Hizb-Ul-Mujahideen. Investigation has also revealedthat certain ex-militants and their family members are using proxycompanies and are registered as traders. During the course ofinvestigation, use of LoC trade route for smuggling of contrabandand weapons has also come to light. separate investigation isunderway regarding the irregularities in the LoC trade.

17.6.5 Hawala:

Apart from the above mentioned sources and channels, thesecessionists depend heavily on the hawala network and conduitsto bring money from off-shore locations to India to fuel-anti-Indiaactivities in Jammu & Kashmir.

i)During the course of investigation, it was ascertained thataccused A-10 Zahoor Ahmad Shah Watali is one suchconduit. The seizure of the incriminating document from thehouse of his cashier-cum-accountant viz. Ghulam Mohd. Bhattregarding the foreign contributions received by Zahoor Ahmad

Shah Watali from Paskistani establishment and terrororganizations and their further remittance to the Hurriyatleaders and secessionists of Jammu & Kashmir clearly showsthat he was an active channel to transmit funds from abroadto India to fuel secessionist activities and to wage war againstthe Government of India.

ii) During the course of investigation, it is revealed thataccused A-10 Zahoor Ahmad Shah Watali was bringingmoney from off-shore locations to India by layering it throughthe scores of firms and companies he has opened. It wasascertained that Zahoor Ahmad Shah Watali has anNRE A/c No.0252040200000505 in J&K Bank and hereceived foreign remittances to the tune ofRs.93,87,639.31/- in this account from 2011 till 2013 fromunknown sources.

iii) During the course of investigation, it was also ascertainedthat the accused Zahoor Ahmad Shah Watali was showingforeign remittances under ‘other income’in hisproprietorship firm viz. Trison International, Srinagar. Fromthe analysis of his bank accounts, it has been ascertainedthat foreign remittances to the tune of Rs.2,26,87,639.31 werereceived by the accused Zahoor Ahmad Shah Watali indifferent accounts from the year 2011 to 2016. An amount ofRs.93,87,639.31/- came in Zahoor Ahmad Shah Watali A/cNo.NRE-0252040200000505 in J&K Bank from 2011 to2013. An amount of Rs.14 lakh was remitted in the accountof Acharya Shri Chander College of Medical Sciences(ASCOMs), Jammu account No.1213040100000229 on09.04.2013 through NEFT against fee deposited for his son,viz., Yawar Zahoor Shah Watali. An amount of Rs.60 lakhwas remitted in current account of accused Zahoor AhmadShah Watali in J&K Bank A/c No.CD4508. An amount ofRs.5 lakh was remitted in the account of Trison Farms &Constructions Pvt. Ltd. A/c OTN-10162. The investigation hasrevealed that all these foreign remittances are from unknownsources.

iv) During the course of investigation, it was also revealedthat on 07.11.2014, one Naval Kishore Kapoor, son of Om

Prakash Kapoor, resident of P.O. Box-8669, Aman, U.A.E.entered into an agreement with Trison Farms andConstructions Pvt. Ltd. through its Managing Director ZahoorAhmad Shah Watali to take piece of land measuring 20Kanals in Sozeith Goripora Nagbal, Budgam on lease inconsideration of an amount of Rs.6 crore as premium andRs.1000/- annual rent for an initial period of 40 yearsextendable as may be mutually agreed between the parties.In the agreement, M/s Trison Farms and Constructions Pvt.Ltd. was declared to be the absolute owner of the piece ofland in question. Mr. Naval Kishore Kapoor remitted totalamount of Rs.5.579 crores in 22 instalments between 2013and 2016 to the accused Zahoor Ahmad Shah Watali.

v) During the course of investigation, it was ascertained thatno land exists in the name of M/s Trison Farms andConstructions Pvt. Ltd. as per the balance sheets of the saidcompany. (AY 2011-12 to 2016-17). It was also ascertainedthat the large sum of money i.e. Rs.5,57,90,000 wasmobilized by Naval Kishore Kapoor from unkown sources andremitted to the accused Zahoor Ahmad Shah Watali over aperiod of 2 years to lease piece of land which is not evenexisting in the name of the company mentioned as first party

in the agreement and the agreement itself lacks legalsanctity. This proves that the said agreement was ‘cover’created by the accused Zahoor Ahmad Shah Watali to bringforeign remittances from unknown sources to India.

vi) During the course of investigation, it is also ascertainedthat the Chartered Accountant, who signed the auditedbalance sheets of the firms belonging to the accused A-10Zahoor Ahmad Shah Watali viz. M/s Trison International(2013-14 and 2015-16), Trison Farms & Constructions Pvt.Ltd. (2013-14 and 2015-16), M/s 3Y (2012-13, 2013-14 and2015-16) and M/s Yasir Enterprises (2013-14 and 2015-16)did so without seeing any supporting documents. The balancesheets of these companies were sent to him by one MustaqMir, Cost Accountant and Shabir Mir, Chartered Accountantfrom Wizkid Office, Srinagar through email and he was askedto sign on them in Delhi without showing any documents.

This clearly shows that Zahoor Watali was remitting moneyreceived from unknown sources to India.

vii) The investigation has also revealed that in the FY2010-11, firm belonging to accused A-10 Zahoor AhmadShah Watali and his family members viz., Trison Farms andConstructions Pvt. Ltd. raised unsecured loan ofRs.2,65,55,532/- from the Directors of the company, i.e. theaccused Zahoor Ahmad Shah Watali, his wife Sarwa Begumand his sons Yassir Gaffar Shah, Yawar Zahoor & YaminZahoor in the form of both cash and cheque and the samewas used towards repayment of secured loan ofRs.2,94,53,353/- in the books of J&K Bank. The source ofmoney with the Directors could not be explainedsatisfactorily by the accused Zahoor Ahmad Shah Watali.

viii) The seizure from the house of accused A-10 ZahoorAhmad Shah Watali, of list of ISI officials and letter fromTariq Shafi, proprietor of AI Shafi group addressed toPakistan High Commission recommending grant of visa toZahoor Watali shows his proximity with Pakistaniestablishment. It is pertinent to mention here that the name ofTariq Shafi figures in the document of foreign contributionsseized from the house of Zahoor Watali’s cashier-cum-accountant viz., Ghulam Mohd. Bhatt.”

(emphasis supplied in italics and bold)

29. In reference to these accusations, the entry in the diaries andthe green-colour document, recovered from the residence of GhulamMohammad Bhatt, is significant. Further, the seizure memo describedas document D-3/6, in respect of search and seizure of articles/documents seized from the premises of the respondent (Accused No.10)dated 3[rd] June, 2017, would unravel the activities of the respondent,including regarding his financial deals. Another crucial documentdescribed as D-3g/20 is contact diary seized from the respondent videMemo D-3, which contains the Pakistan National name and contact“Tariq Shafi 0092425765022…26A” whose name figures in documentD-132(a)/23. The Code “0092” pertains to Pakistan. Another contactdiary was seized from the respondent vide Memo D-3, which, at page

AD-3h/28 contains the same name and contact, namely, “Tariq Shafi00923008459775/ 0092425765022”. The documents D-3j to D-3j/5 alsoindicate the involvement of the respondent in terrorist activities,including that three cases of TADA have been registered against him inthe past and investigated and one case of J & K PSA, 1978. The HighCourt erroneously proceeded on the premise that the charge-sheet makesBno reference to any other criminal case against the respondent.Additionally, the charge-sheet is accompanied with documents D-9b andD-9c, which are photographs of ex-militant Aftab Hilali Shah @Shahid-ul-Islam (A-3) holding AK-47, seen with other terrorists. Thesephotographs were seized from the residence of the said ex-militant onC3[rd] June, 2017. The prosecution case is that the respondent (AccusedNo.10) was in constant touch with the said ex-militant Aftab Hilali Shah@ Shahid-ul-Islam (A-3), as noticed from the inter-linkage chartdepicted above. That fact is backed by the CDR analysis report, alsopart of the charge-sheet. The charge-sheet also contains documentD-185/10, which is contact list of accused Nayeem Khan (A-5)Dretrieved through forensic analysis, having mobile numbers of personsassociated with Hurriyat party; and of one Mudasir Cheema Pak whois none other than the First Secretary of Pakistan High Commission. Hisname also figures in document D-132(a)/23. The Designated Court,besides adverting to the aforementioned documents, also adverted toEother documents and the statements of the prospective witnesses(Ws-1, 28, 29, 38, 39, 43, 44, 48 and 52). The High Court has notappreciated the said material which found favour with the DesignatedCourt to record its opinion that there are reasonable grounds forbelieving that the accusation against the respondent is prima facie true.The view so expressed by the Designated Court commends to us.FSuffice it to observe that the High Court adopted tenuous approach -by first discarding the document D-132(a) and then discarding thestatement of witnesses recorded under Section 161 and also thestatements recorded under Section 164, presented by the InvestigatingAgency in sealed cover. As aforesaid, the High Court ought to haveGtaken into account the totality of the materials/evidences which depictedthe involvement of the respondent in the commission of the statedoffences and being member of larger conspiracy, besides the of-fence under Section 17 for raising funds for terrorist activities.

30. In the case of Niranjan Singh Karam Singh Punjabi(supra), the Court essentially considered the scope and ambit of theenquiry by the Trial Court at the stage of “discharge”. In that context,the Court made observations in paragraphs 6 and 8 of the said judgmentwhich must be understood accordingly. In the present case, however,we are called upon to consider the prayer for bail in the context of thepurport of the proviso to Section 43D(5) of the 1967 Act whichmandates that the accused person involved in the commission of of-fence referable to Chapters IV and VI of the 1967 Act shall not bereleased on bail or on bond. However, the Court may release suchaccused on bail only if it is of the opinion, on perusal of the case diaryand/or the report made under Section 173 of Cr.P.C. that there are “noreasonable grounds” for believing that the accusation against suchperson is prima facie true. Conversely, if in the opinion of the Court,there are reasonable grounds for believing that the accusation againstsuch person is prima facie true, the question of granting bail would notarise as the bar under the first part of the proviso of no bail in such caseswould operate.31. The fact that there is high burden on the accused in termsof the special provisions contained in Section 43D(5) to demonstratethat the prosecution has not been able to show that there existsreasonable grounds to show that the accusation against him is primafacie true, does not alter the legal position expounded in K. Veeraswami(supra), to the effect that the charge-sheet need not contain detailedanalysis of the evidence. It is for the Court considering the applicationfor bail to assess the material/evidence presented by the InvestigatingAgency along with the report under Section 173 of Cr.P.C. in itsentirety, to form its opinion as to whether there are reasonable groundsfor believing that the accusation against the named accused is primafacie true or otherwise.

32. In the case of Hitendra Vishnu Thakur (supra), the Courtwas called upon to consider the following questions as noted in the openingparagraph of the judgment, viz.:

“In this batch of criminal appeals and special leave petitions(criminal) the three meaningful questions which require ourconsideration are: (1) When can the provisions of Section 3(1) ofthe Terrorist and Disruptive Activities (Prevention) Act, 1987

1124SUPREME COURT REPORTS

A(hereinafter referred to as the TADA) be attracted? (2) Is the1993 Amendment, amending Section 167(2) of the Code ofCriminal Procedure by modifying Section 20(4)(b) and adding anew provision as 20(4)(bb), applicable to the pending cases i.e. isit retrospective in operation? and (3) What is the true ambit andscope of Section 20(4) and Section 20(8) of TADA in the matterBof grant of bail to an accused brought before the Designated Courtand the factors which the Designated Court has to keep in viewwhile dealing with an application for grant of bail under Section20(4) and for grant of extension of time to the prosecution forfurther investigation under clause (bb) of Section 20(4) andCincidentally whether the conditions contained in Section 20(8)TADA control the grant of bail under Section 20(4) of the Actalso? We shall take up for consideration these questions inseriatim”

The focus essentially was on matters relevant for considerationDof application for bail on the ground of default in filing the charge-sheetwithin the statutory period. Indeed, one of the questions was about thescope of the provisions relating to grant of bail in respect of offencepunishable under special enactment TADA. That has been discussed inparagraphs 13 and 14 of the reported judgment, which reads thus:

E“13. We would, therefore, at this stage like to administer wordof caution to the Designated Courts regarding invoking theprovisions of TADA merely because the investigating officer atsome stage of the investigation chooses to add an offence undersame (sic some) provisions of TADA against an accused person,more often than not while opposing grant of bail, anticipatory orFotherwise. The Designated Courts should always considercarefully the material available on the record and apply their mindto see whether the provisions of TADA are even prima facieattracted.

14. The Act provides for the constitution of one or moreGDesignated Courts either by the Central Government or the StateGovernment by notification in the Official Gazette to try specifiedcases or class or group of cases under the Act. The Act makesevery offence punishable under the Act or any rule madethereunder to be cognizable offence within the meaning of

Section 2(c) of the CrPC. The Act vests jurisdiction in theDesignated Court to try all such offences under the Act by givingprecedence over the trial of any other case against an accused inany other court (not being Designated Court) notwithstandinganything contained in the Code or any other law for the timebeing in force. The conferment of power on the Designated Courtsto try the offences triable by them, punishable with imprisonmentfor term not exceeding three years or with fine or with both, ina summary manner in accordance with the procedure prescribedin the CrPC notwithstanding anything contained in Section 260(1)or 262 CrPC by applying the provisions of Sections 263-265 ofthe Act is marked departure. The right of appeal straight to theSupreme Court against any judgment, sentence or order not beingan interlocutory order vide Section 19(1) of the Act demonstratesthe seriousness with which Parliament has treated the offencesunder TADA. An onerous duty is therefore cast on theDesignated Courts to take extra care to scrutinise the material onthe record and apply their mind to the evidence and documentsavailable with the investigating agency before charge-sheeting anaccused for an offence under TADA. The stringent provisions ofthe Act coupled with the enhanced punishment prescribed for theoffences under the Act make the task of the Designated Courteven more onerous, because the graver the offence, greater shouldbe the care taken to see that the offence must strictly fall withinthe four corners of the Act before charge is framed against anaccused person. Where the Designated Court without as muchas even finding prima facie case on the basis of the material onthe record, proceeds to charge-sheet an accused under any ofthe provisions of TADA, merely on the statement of the investi-gating agency, it acts merely as post office of the investigatingagency and does more harm to meet the challenge arising out ofthe ‘terrorist’ activities rather than deterring terrorist activities.The remedy in such cases would be worse than the disease itselfand the charge against the State of misusing the provisions ofTADA would gain acceptability, which would be bad both forthe criminal and the society. Therefore, it is the obligation of theinvestigating agency to satisfy the Designated Court from thematerial collected by it during the investigation, and not merely by

ABC

DEFG

thus:

the opinion formed by the investigating agency, that the activityof the ‘terrorist’ falls strictly within the parameters of theprovisions of TADA before seeking to charge-sheet an accusedunder TADA. The Designated Court must record its satisfactionabout the existence of prima facie case on the basis of thematerial on the record before it proceeds to frame charge-sheetagainst an accused for offences covered by TADA. Even afteran accused has been charge-sheeted for an offence under TADAand the prosecution leads evidence in the case, it is an obligationof the Designated Court to take extra care to examine theevidence with view to find out whether the provisions of the Actapply or not. The Designated Court is, therefore, expected tocarefully examine the evidence and after analysing the same cometo firm conclusion that the evidence led by the prosecution hasestablished that the case of the accused falls strictly within thefour corners of the Act before recording conviction against anaccused under TADA.”

Again, in paragraph 22 of the said judgment, the Court observed

“22. ….The two provisions operate in different and independentfields. The basis for grant of bail under Section 20(4), as alreadynoticed, is entirely different from the grounds on which bail maybe granted under Section 20(8) of the Act. It would beadvantageous at this stage to notice the provisions of Section 20(8)and (9) of the Act.

‘(8) Notwithstanding anything contained in the Code, noperson accused of an offence punishable under this Act or anyrule made thereunder shall, if in custody, be released on bail oron his own bond unless—

(a) the Public Prosecutor has been given an opportunity tooppose the application for such release, and

(b) where the Public Prosecutor opposes the application, thecourt is satisfied that there are reasonable grounds forbelieving that he is not guilty of such offence and that he is notlikely to commit any offence while on bail.

(9) The limitations on granting of bail specified in sub-section(8) are in addition to the limitations under the Code or anyother law for the time being in force on granting of bail.’

As would be seen from the plain phraseology of sub-section (8)of Section 20, it commences with non obstante clause and in itsoperation imposes ban on release of person accused of anoffence punishable under TADA or any rule made thereunder onbail unless the twin conditions contained in clauses (a) and (b)thereof are satisfied. No bail can be granted under Section 20(8)unless the Designated Court is satisfied after notice to the publicprosecutor that there are reasonable grounds for believing thatthe accused is not guilty of such an offence and that he is notlikely to commit any offence while on bail. Sub-section (9)qualifies sub-section (8) to the extent that the two conditionscontained in clauses (a) and (b) are in addition to the limitationsprescribed under the Code of Criminal Procedure or any otherlaw for the time being in force relating to the grant of bail. Strictlyspeaking Section 20(8) is not the source of power of theDesignated Court to grant bail but it places further limitations onthe exercise of its power to grant bail in cases under TADA, as isamply clear from the plain language of Section 20(9). TheConstitution Bench in Kartar Singh case[19] while dealing withthe ambit and scope of sub-sections (8) and (9) of Section 20 ofthe Act quoted with approval the following observations fromUsmanbhai case[20]: (SCC p. 704, para 344)

‘Though there is no express provision excluding theapplicability of Section 439 of the Code similar to the onecontained in Section 20(7) of the Act in relation to caseinvolving the arrest of any person on an accusation of havingcommitted an offence punishable under the Act or any rulemade thereunder, but that result must, by necessaryimplication, follow. It is true that the source of power of aDesignated Court to grant bail is not Section 20(8) of the Actas it only places limitations on such power. This is madeexplicit by Section 20(9) which enacts that the limitations ongranting of bail specified in Section 20(8) are ‘in addition to the

Alimitations under the Code or any other law for the time beingin force’. But it does not necessarily follow that the power ofa Designated Court to grant bail is relatable to Section 439 ofthe Code. It cannot be doubted that Designated Court is ‘acourt other than the High Court or the Court of Session’ withinthe meaning of Section 437 of the Code. The exercise of theBpower to grant bail by Designated Court is not only subjectto the limitations contained therein, but is also subject to thelimitations placed by Section 20(8) of the Act.’

and went on to add: (SCC p. 704, para 345)

‘Reverting to Section 20(8), if either of the two conditionsmentioned therein is not satisfied, the ban operates and theaccused person cannot be released on bail but of course it issubject to Section 167(2) as modified by Section 20(4) of theTADA Act in relation to case under the provisions of TADA.’

Thus, the ambit and scope of Section 20(8) of TADA is no longerres integra and from the above discussion it follows that both theprovisions i.e. Section 20(4) and 20(8) of TADA operate indifferent situations and are controlled and guided by differentconsiderations.”

33. We fail to understand as to how this decision will be of anyavail to the respondent. In our opinion, the Designated Court had rightlyrejected the bail application after adverting to the relevant material/evidence indicative of the fact that there are reasonable grounds forbelieving that the accusation against the respondent is prima facie true.

34. With reference to the document D-132(a), the High CourtFwas impressed by the argument that the same would be inadmissible. Tobuttress that opinion of the High Court, the respondent would rely on thedecision of this Court in V.C. Shukla (supra). Further, it was submittedthat in light of Section 34 of the Evidence Act, the said document couldnot be admitted in evidence, since it was not an entry in the books ofGaccount regularly kept in the course of business. In any case, thatdocument by itself would not be sufficient in the absence of any inde-pendent evidence. Learned Attorney General, relying on the underlyingprinciple in Khoday Distilleries Ltd. and Ors. Vs. State of Karnatakaand Ors.[21], would contend that there cannot be business in crime and,

as such, Section 34 of the Evidence Act will have no application. Hefurther submits that the prosecution may use the facts noted in the saiddocument and prove the same against the respondent by other evidence.This argument need not detain us. For, we find force in the argument ofthe learned Attorney General that the issue of admissibility andcredibility of the material and evidence presented by the InvestigatingOfficer would be matter for trial. Furthermore, indubitably, theprosecution is not solely relying on the document D-132(a) recoveredfrom the residence of Ghulam Mohammad Bhatt (W-29). There arealso other incriminatory documents recovered from respondent(Accused No.10) himself during the search, including other independentevidence, which, indeed, will have to be proved during the trial.35. The appellant has relied on the exposition in Salim Khan(supra), to contend that in cases where the High Court adopted totallyerroneous approach, as in the present case, discarding the crucialmaterial/evidence which is referred to in the report under Section 173Cr.P.C. and presented before the Designated Court, then the ordergranting bail by the High Court cannot be countenanced. The argumentof the respondent is that the said decision would make no difference asit is concerning an application for cancellation of bail made by theinformant. However, we find force in the argument of the appellant thatthe High Court, in the present case, adopted an inappropriate approachwhilst considering the prayer for grant of bail. The High Court ought tohave taken into account the totality of the material and evidence onrecord as it is and ought not to have discarded it as being inadmissible.The High Court clearly overlooked the settled legal position that, at thestage of considering the prayer for bail, it is not necessary to weigh thematerial, but only form opinion on the basis of the material before it onbroad probabilities. The Court is expected to apply its mind to ascertainwhether the accusations against the accused are prima face true.Indeed, in the present case, we are not called upon to consider the prayerfor cancellation of bail as such but to examine the correctness of theapproach of the High Court in granting bail to the accused despite thematerials and evidence indicating that accusations made against him areprima facie true.

36. In decision of this Court in Chenna Boyanna Krishna Yadav(supra), to which reference has been made, the Court has re-stated the

Atwin conditions to be considered by the Court before grant of bail inrelation to MCOCA offences. We are of the view that in the presentcase, the Designated Court rightly opined that there are reasonablegrounds for believing that the accusation against the respondent is primafacie true. As we are not inclined to accept the prayer for bail, in ouropinion, it is not necessary to dilate on other aspects to obviate prolixity.B

37. fortiori, we deem it proper to reverse the order passed bythe High Court granting bail to the respondent. Instead, we agree withthe conclusion recorded by the Designated Court that in the facts of thepresent case, the respondent is not entitled to grant of bail in connectionwith the stated offences, particularly those falling under Chapters IVCand VI of the 1967 Act.

38. Accordingly, this appeal succeeds. The impugned judgmentand order is set aside and, instead, the order passed by the DesignatedCourt rejecting the application for grant of bail made by the respondentherein, is affirmed.D

39. All pending applications are also disposed of.

Divya Pandey

Appeal allowed.