d seeking regular bail in NIA Case RC.19/2020/NIA/DLI, registered under Sections 124A, 153A, 153B, 120-B of the Indian Penal Code, 1860 2 (IPC), Section(s) 17, 18, 19 of the Unlawful Activities (Prevention) Act, 1967 (UAP Act) and Sections 25 and 54 of the Arms Act, 1959, which came to be rejected.
2024 INSC 92
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.704 of 2024
(@ SPECIAL LEAVE PETITION (CRIMINAL) No.10047 of 2023)
GURWINDER SINGH …APPELLANT
VERSUS
STATE OF PUNJAB & ANOTHER ...RESPONDENTS
JUDGEMENT
Aravind Kumar J.
1. Leave granted.
2. The present appeal impugns the order dated 24.04.2023 passed by
the High Court of Punjab and Haryana at Chandigarh in CRA-D No. 144 of
2022 (O&M) whereby the High Court has upheld the order dated 16.12.2021
passed by the Special Judge, NIA Court, SAS Nagar, Mohali in an
application filed under Section 439 of the Code of Criminal Procedure, 1973
(Cr.P.C) filed by the Appellant herein-Gurwinder Singh along with other coaccused seeking regular bail in NIA Case RC.19/2020/NIA/DLI, registered
under Sections 124A, 153A, 153B, 120-B of the Indian Penal Code, 1860
2
(IPC), Section(s) 17, 18, 19 of the Unlawful Activities (Prevention) Act,
1967 (UAP Act) and Sections 25 and 54 of the Arms Act, 1959, which came
to be rejected.
3. The factual matrix relevant to dispose the present petition are
summarized as under:
3.1 On 19.10.2018, Sh. Varinder Kumar, Inspector, CIA Staff, received
secret information that two persons are hanging cloth banners on which
“Khalistan Jindabad” and “Khalistan Referendum 2020”, was written, at
Pillars Kot Mit Singh Flyover, Amritsar. The Police team apprehended one
Sukhraj Singh @ Raju and Malkeet Singh @ Meetu on the spot and a case
was registered vide FIR No.152 dated 19.10.2018 under section(s) 124A,
153A, 153B and 120B of IPC against both the arrested accused. During the
course of Investigation, entire module of the banned terrorist organization
named “Sikh for Justice” was busted and other accused persons involved in
the said module namely, Bikramjit Singh @ Vicky, Manjit Singh @ Manga,
Jatinder Singh @ Goldy, Harpreet Singh @ Happy, Gurwinder Singh @
Gurpreet Singh @ Gopi-the present Appellant, Harmeet Singh @ Raju,
Roofel @ Raful @ Rahul Gill, Sukhmander Singh @ Gopi and Kuldeep
Singh @ Kuldip Singh @ Keepa were arrested by Punjab Police.
3
3.2 The investigation was completed and final report was presented on
16.04.2019 before the Trial Court against eleven accused persons under
Sections 117, 112, 124A, 153A, 153B, 120-B of IPC, Sections 17, 18, 19 of
UAP Act and Section 25 of Arms Act. On further investigation, the police
submitted supplementary reports.
3.3 Due to degree of severity in the charges involved, the investigation
in the present matter was transferred to the National Investigation Agency
(NIA), which took over the investigation of this case as per the directions of
Government of India, Ministry of Home Affairs issued vide Order
F.No.11011/30/2020/NIA dated 04.04.2020 and registered the original case
as RC.19/2020/NIA/DLI dated 05.04.2020. 3rd supplementary chargesheet
was filed by NIA dated 18.12.2020 and Charges were framed by the Learned
Special Judge, NIA Punjab on 09.12.2021.
3.4 The investigation revealed that the accused persons received funds
through illegal means sent by members of the banned terrorist organization
“Sikhs For Justice”, those funds were channeled through illegal means such
as “Hawala” and were sent to be used for furthering separatist ideology of
demanding a separate State for Sikhs popularly called “Khalistan”, and to
carry out terror activities and other preparatory acts i.e., attempts to procure
weapons to spread terror in India in furtherance of such separatist
movement. The investigation further revealed the hand of an ISI handler
4
named Javed Khan, to be behind the operations of this module busted by
Punjab Police and NIA.
3.5 The prima facie involvement of the present Appellant has cropped
up in the disclosure statement of the co-accused Bikramjit Singh @ Vicky
(Accused No. 3) recorded on 09.06.2020 while he was in the custody of
NIA.
3.6 The said disclosure statement revealed that on 08.07.2018, the
Appellant herein-Gurwinder Singh accompanied Bikramjit Singh (Accused
No. 3) and Harpreet Singh @Happy (Accused No.7) to Srinagar in a car
where they had planned to purchase a pistol. There they met Sandeep Singh
@ Sana and further went to a JK-Li Camp in Srinagar. Sandeep Singh
entered the Army camp and after half an hour he came out and stated that
pistol was not available. Then they came back to Gurudwara Sahib, where
Sandeep offered them to purchase RDX instead, but they declined and all
three returned back to Punjab, where Bikramjit Singh (Accused No. 3) was
dropped off mid-way at Jandialaguru while both, the present Appellant and
Harpreet Singh @ Happy, returned back to their village in Punjab.
3.7 The Appellant’s disclosure statement recorded on 12.06.2020
revealed a similar story as that of Bikramjit Singh. The Appellant stated that
he and Harpreet Singh were childhood friends. In the 1
st week of July 2018,
Harpreet proposed to visit Srinagar for Religious Service and asked the
Appellant to accompany. The Appellant in his disclosure statement further
5
stated that he initially denied to go with them however later agreed to
accompany them when Harpreet Singh continuously insisted him.
3.8 The trial court vide its order dated 16.12.2023 in CIS No.
BA/2445/2021 dismissed the Appellant’s bail application under Section 439
CrPC on the ground that there were reasonable grounds to believe the
accusation against the Appellant to be true. The said order was impugned by
way of an appeal before the High Court of Punjab and Haryana and
meanwhile on 10.04.2023, 4
th supplementary charge sheet was filed by NIA
along with the List of witnesses and list of documents.
3.9 Vide the Impugned order the High Court rejected the grant of bail to
Appellant on the ground ofseriousness of the nature of offence and that none
of the protected witnesses had been examined.
SUBMISSION ON BEHALF OF THE PARTIES
4. The Learned Senior Counsel, Mr. Colin Gonsalves, appearing on
behalf of the Appellant made the following submissions in support of the
Appellant's bail application:
5. Mr. Gonsalves, learned Senior Counsel contended that the Appellant
has been denied bail by the Hon’ble High Court and the Ld. Special Judge
by relying upon the disclosure statement of Bikramjit Singh alias Vicky and
6
argued that the said disclosure statement cannot be used to implicate the
present Appellant.
6. Learned Senior Counsel further raised contentions about the lack of
scrutiny of the Appellant's mobile phone, marked as M-4 to indicate that the
phone number did not belong to the Appellant. He argued that the absence
of incriminating conversations in the Communication Data Records (CDR)
related to the Appellant's phone supports the case for bail. He further
contended that the Appellant has been in custody since the last Five years
facing charges of UAP Act which is contrary to the law laid down in KA
Najeeb v. Union of India.1
7. He further submitted that only 19 out of 106 witnesses have been
examined in the last five-year period. He also drew our attention to terror
funding chart to demonstrate that the name of the Appellant does not find
place in the same. Mr. Gonsalves also questioned the omission of the alleged
main conspirator, Nihal Singh, as an accused, emphasizing that the
Appellant did not procure any weapons.
8. He further sought our attention to the 4th supplementary
chargesheet, aimed at establishing a funding link with ISI, to illustrate the
1
(2021) 3 SCC 713
7
Appellant's exclusion from relevant documentation. Lastly, he stated that out
of Nine protected witnesses that have been examined, eight have not
mentioned the name of Appellant. Hence, he prayed to set aside the
impugned order and grant bail to the Appellant.
9. Per contra, Mr. Suryaprakash V. Raju, learned Additional Solicitor
General, on behalf of the Respondent, submitted that there is sufficient
evidence on record to prove the incriminating role of the Appellant and the
same is revealed by the statements of Protected witnesses.
10. He further submitted that the Appellant-accused along with coaccused Bikarmjit Singh @ Vicky (Accused No. 3) were involved in the
activities of “Sikhs for Justice”, a banded terrorist organisation, whose chief
proponent is Gurpatwant Singh Pannu (Accused No. 12) and Bikramjit
Singh @ Vicky (Accused No. 3) had asked their known persons to arrange
weapons from Kashmir. In furtherance of their activities to procure arms
and ammunition, the Appellant-accused along with co-accused Bikarmjit
Singh @ Vicky and Harpreet Singh @ Happy (Accused No. 7) had visited
Srinagar.
11. He further submitted that Appellant in his voluntary disclosure
statement admitted that on gaining knowledge of purpose of visit to
8
Srinagar, he voluntarily continued the journey. In fact, the Appellant
suggested an alternative to the co-accused and advised them to procure the
weapon from Western Uttar Pradesh.
12. Further, he submitted that the provisions of section 43D(5) of
Unlawful Activities (Prevention) Act, 1967 are completely applicable in this
case and as such the High court has rightly denied bail to the Appellantaccused.
13. He also contended that the case is presently under trial and so far 22
witnesses have been examined. The accused is facing charges of grave
nature pertaining to crimes that are not attributable to an individual but
members of a terrorist gang operating at the behest of Gurpatwant Singh
Pannu (Accused No. 12), a proscribed terrorist. If the Appellant is released
on bail, there is every likelihood that he will influence the key witnesses of
the case hampering the process of justice. Hence, he prayed that the bail
petition should be rejected.
DISCUSSION AND CONCLUSION
14. We have heard the learned counsel on behalf of both the parties and
have perused the records of the case. The present case involves the charges
under the UAP Act along with other charges under the IPC and Arms Act
9
therefore, it is apt to consider the bail provision envisaged undersection 43D
of the UAP Act before we delve to analyze the facts.
Bail under UAP Act: Section 43D (5)
15. In the course of oral argument, both sides have laid great
emphasis on the interpretation of section 43D(5) of the 1967 Act. We
will begin our analysis with a discussion on the scope and limitations of bail
under Section 43D(5) UAP Act.
We shall extract Section 43D(5) for easy reference:
"Section 43D - Modified application of certain provisions of the
Code
(1)......
................
(5) Notwithstanding anything contained in the Code, no person
accused of an offence punishable under Chapters IV and VI of
this Act shall, if in custody, be released on bail or on his own
bond unless the Public Prosecutor has been given an
opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail
or on his own bond if the Court, on a perusal of the case diary
or the report made under section 173 of the Code is of the
opinion that there are reasonable grounds for believing that the
accusation against such person is prima facie true.
(6) The restrictions on granting of bail specified in sub-section
(5) is in addition to the restrictions under the Code or any other
law for 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 a person accused of an offence
punishable under this Act, if he is not an Indian citizen and has
entered the country unauthorizedly or illegally except in very
exceptional circumstances and for reasons to be recorded in
writing."
10
16. The source of the power to grant bail in respect of non-bailable
offences punishable with death or life imprisonment emanates from Section
439 CrPC. It can be noticed that Section 43D(5) of the UAPAct modifies the
application of the general bail provisions in respect of offences punishable
under Chapter IV and Chapter VI of the UAP Act.
17. A bare reading of Sub-section (5) of Section 43D shows that apart
from the fact that Sub-section (5) bars a Special Court from releasing an
accused on bail without affording the Public Prosecutor an opportunity of
being heard on the application seeking release of an accused on bail, the
proviso to Sub-section (5) of Section 43D puts a complete embargo on the
powers of the Special Court to release an accused on bail. It lays down that
if the Court, ‘on perusal of the case diary or the report made under Section
173 of the Code of Criminal Procedure’, is of the opinion that there are
reasonable grounds for believing that the accusation, against such person, as
regards commission of offence or offences under Chapter IV and/or Chapter
VI of the UAP Act is prima facie true, such accused person shall not be
released on bail or on his own bond. It is interesting to note that there is no
analogous provision traceable in any otherstatute to the one found in Section
43D(5) of the UAPAct. In that sense, the language of bail limitation adopted
therein remains unique to the UAP Act.
11
18. The conventional idea in bail jurisprudence vis-à-vis ordinary penal
offences that the discretion of Courts must tilt in favour of the oft-quoted
phrase - ‘bail is the rule, jail is the exception’ – unless circumstances justify
otherwise - does not find any place while dealing with bail applications
under UAP Act. The ‘exercise’ of the general power to grant bail under the
UAP Act is severely restrictive in scope. The form of the words used in
proviso to Section 43D (5)– ‘shall not be released’in contrast with the form
of the words as found in Section 437(1) CrPC - ‘may be released’– suggests
the intention of the Legislature to make bail, the exception and jail, the rule.
19. The courts are, therefore, burdened with a sensitive task on hand. In
dealing with bail applications under UAP Act, the courts are merely
examining if there is justification to reject bail. The ‘justifications’ must be
searched from the case diary and the final report submitted before the
Special Court. The legislature has prescribed a low, ‘prima facie’ standard,
as a measure of the degree of satisfaction, to be recorded by Court when
scrutinising the justifications [materials on record]. This standard can be
contrasted with the standard of ‘strong suspicion’, which is used by Courts
while hearing applications for ‘discharge’. In fact, the Supreme Court in
Zahoor Ali Watali2 has noticed this difference, where it said:
2
(2019) 5 SCC 1
12
“In any case, the degree of satisfaction to be recorded by the
Court for opining that there are reasonable grounds for
believing that the accusation against the accused is prima facie
true, is lighter than the degree of satisfaction to be recorded for
considering a discharge application or framing of charges in
relation to offences under the 1967 Act.”
20. In this background, the test for rejection of bail is quite plain. Bail
must be rejected as a ‘rule’, if after hearing the public prosecutor and after
perusing the final report or Case Diary, the Court arrives at a conclusion that
there are reasonable grounds for believing that the accusations are prima
facie true. It is only if the test for rejection of bail is not satisfied – that the
Courts would proceed to decide the bail application in accordance with the
‘tripod test’ (flight risk, influencing witnesses, tampering with evidence).
This position is made clear by Sub-section (6) of Section 43D, which lays
down that the restrictions, on granting of bail specified in Sub-section (5),
are in addition to the restrictions under the Code of Criminal Procedure or
any other law for the time being in force on grant of bail.
21. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a
bail court must undertake while deciding bail applications under the UAP
Act can be summarised in the form of a twin-prong test :
1) Whether the test for rejection of the bail is satisfied?
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1.1 Examine if, prima facie, the alleged ‘accusations’
make out an offence under Chapter IV or VI of the UAP
Act
1.2 Such examination should be limited to case diary
and final report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail
in light of the general principles relating to grant of bail
under Section 439 CrPC (‘tripod test’)?
On a consideration of various factors such as nature of offence, length of
punishment (if convicted), age, character, status of accused etc., the Courts
must ask itself :
2.1 Whether the accused is a flight risk?
2.2. Whether there is apprehension of the accused
tampering with the evidence?
2.3 Whether there is apprehension of accused
influencing witnesses?
22. The question of entering the ‘second test’of the inquiry will not arise
if the ‘first test’is satisfied. And merely because the first test is satisfied, that
does not mean however that the accused is automatically entitled to bail. The
accused will have to show that he successfully passes the ‘tripod test’.
Test for Rejection of Bail: Guidelines as laid down by Supreme Court
in Watali’s Case
23. In the previous section, based on a textual reading, we have
discussed the broad inquiry which Courts seized of bail applications under
14
Section 43D(5) UAPAct r/w Section 439 CrPC must indulge in. Setting out
the framework of the law seems rather easy, yet the application of it, presents
its own complexities. For greater clarity in the application of the test set out
above, it would be helpful to seek guidance from binding precedents. In this
regard, we need to look no further than Watali’s case which has laid down
elaborate guidelines on the approach that Courts must partake in, in their
application of the bail limitations under the UAP Act. On a perusal of
paragraphs 23 to 29 and 32, the following 8-point propositions emerge and
they are summarised as follows:
• Meaning of ‘Prima facie true’ [para 23]: On the face of it, the materials
must show the complicity of the accused in commission of the offence. The
materials/evidence must be good and sufficient to establish a given fact or
chain of facts constituting the stated offence, unless rebutted or contradicted
by other evidence.
• Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and PostCharges – Compared [para 23]: Once charges are framed, it would be safe
to assume that a very strong suspicion was founded upon the materials
before the Court, which prompted the Court to form a presumptive opinion
as to the existence of the factual ingredients constituting the offence alleged
against the accused, to justify the framing of charge. In that situation, the
accused may have to undertake an arduous task to satisfy the Court that
15
despite the framing of charge, the materials presented along with the chargesheet (report under Section 173 CrPC), do not make out reasonable grounds
for believing that the accusation against him is prima facie true. Similar
opinion is required to be formed by the Court whilst considering the prayer
for bail, made after filing of the first report made under Section 173 of the
Code, as in the present case.
•Reasoning, necessary but no detailed evaluation of evidence [para 24]:
The exercise to be undertaken by the Court at this stage--of giving reasons
for grant or non-grant of bail--is markedly different from discussing merits
or demerits of the evidence. The elaborate examination or dissection of the
evidence is not required to be done at this stage.
•Record a finding on broad probabilities, not based on proof beyond
doubt [para 24]: “The Court is merely expected to record a finding on the
basis of broad probabilities regarding the involvement of the accused in the
commission of the stated offence or otherwise.”
•Duration of the limitation under Section 43D(5) [para 26]: The special
provision, Section 43-D of the 1967 Act, applies right from the stage of
registration of FIR for the offences under Chapters IV and VI of the 1967
Act until the conclusion of the trial thereof.
16
•Material on record must be analysed as a ‘whole’; no piecemeal
analysis [para 27]: The totality of the material gathered by the investigating
agency and presented along with the report and including the case diary, is
required to be reckoned and not by analysing individual pieces of evidence
or circumstance.
•Contents of documents to be presumed as true [para 27]: The Court must
look at the contents of the document and take such document into account as
it is.
•Admissibility of documents relied upon by Prosecution cannot be
questioned [para 27]: The materials/evidence collected by the investigation
agency in support of the accusation against the accused in the first
information report must prevail until contradicted and overcome or
disproved by other evidence…….In any case, the question of discarding the
document at this stage, on the ground of being inadmissible in evidence, is
not permissible.
24. It will also be apposite at thisjuncture to refer to the directionsissued
in Devender Gupta v. National Investigating Agency3 wherein a Division
Bench of the High Court of Andhra Pradesh strove to strike a balance
3 2014 (2) ALD Cri. 251
17
between the mandate under Section 43D on one hand and the rights of the
accused on the other. It was held as follows:
"The following instances or circumstances, in our view, would
provide adequate guidance for the Court to form an opinion, as
to whether the accusation in such cases is "prima facie true":
1) Whether the accused is/are associated with any organization,
which is prohibited through an order passed under the provisions
of the act;
2) Whether the accused was convicted of the offenses involving such
crimes, or terrorist activities, or though acquitted on technical
grounds; was held to be associated with terrorist activities;
3) Whether any explosive material, of the category used in the
commission of the crime, which gave rise to the prosecution; was
recovered from, or at the instance of the accused;
4) Whether any eye witness or a mechanical device, such as CC
camera, had indicated the involvement, or presence of the
accused, at or around the scene of occurrence; and
5) Whether the accused was/were arrested, soon after the
occurrence, on the basis of the information, or clues available with
the enforcement or investigating agencies."
25. In the case of Kekhriesatuo Tep and Ors. v. National Investigation
Agency4
the Two-Judge Bench (Justice B.R. Gavai & Justice Sanjay Karol)
while dealing with the bail application for the offence of supporting and
raising funds for terrorist organization under section 39 and 40 of the UAP
Act relied upon NIA v. Zahoor Ahmad Shah Watali5
and observed that:
“while dealing with the bail petition filed by the accused against
whom offences under chapter IV and VI of UAPA have been
made, the court has to consider as to whether there are
4
(2023) 6 SCC 58
5
(2019) 5 SCC 1
18
reasonable grounds for believing that the accusation against the
accused is prima facie true. The bench also observed that
distinction between the words “not guilty” as used in TADA,
MCOCA and NDPS Act as against the words “prima facie” in
the UAPA as held in Watali’s Case (supra) to state that a degree
of satisfaction required in the case of “not guilty” is much
stronger than the satisfaction required in a case where the words
used are “prima facie”
26. In the case of Sudesh Kedia v. Union of India6
the Bench of Justice
Nageswara Rao and Justice S. Ravindra Bhat while dealing with a bail
application for the offence u/s. 17, 18 and 21 of the UAP Act relied upon
the principle propounded in Watali’s case (supra) and observed that:
“the expression “prima facie” would mean that the
materials/evidence collated by the investigating agency in
reference to the accusation against the accused concerned must
prevail until contradicted and overcome or disproved by other
evidence, and on the face of it, shows that complicity of such
accused in the commission of the stated offence. It must be good
and sufficient on its face to establish a given fact or the chain of
facts constituting the stated offence, unless rebutted or
contradicted.”
27. In the light of these guiding principles, we shall now proceed to
decide whether the additional limitations found in Section 43D(5) UAPAct
are attracted in the facts of the present case. In other words, we shall inquire
if the first test (as set out above), i.e., test for rejection of bail, is satisfied.
For this purpose, it will, firstly, have to be examined whether the
allegations/accusations against the Appellants contained in charge-sheet
6
(2021) 4 SCC 704
19
documents and case diary, prima facie, disclose the commission of an
offence Section 17,18 and 19 of the UAP Act.
Section 17 of the UAP Act states:
17. Punishment for raising funds for terrorist act. —Whoever,
in India or in a foreign country, directly or indirectly, raises or
collects funds or provides funds to any person or persons or
attempts to provide funds to any person or persons, knowing that
such funds are likely to be used by such person or persons to
commit a terrorist act, notwithstanding whether such funds were
actually used or not for commission of such act, shall be
punishable with imprisonment for a term which shall not be less
than five years but which may extend to imprisonment for life, and
shall also be liable to fine.
Section 18 of the UAP Act states:
18. Punishment for conspiracy, etc.—Whoever conspires or
attempts to commit, or advocates, abets, advises or [incites,
directly or knowingly facilitates] the commission of, a terrorist
act or any act preparatory to the commission of a terrorist act,
shall be punishable with imprisonment for a term which shall not
be less than five years but which may extend to imprisonment for
life, and shall also be liable to fine.
Section 19 of the UAP Act states:
19. Punishment for harbouring, etc.—Whoever voluntarily
harbours or conceals, or attempts to harbour or conceal any
person knowing that such person is a terrorist shall be punishable
with imprisonment for a term which shall not be less than three
years but which may extend to imprisonment for life, and shall
also be liable to fine: Provided that this section shall not apply to
any case in which the harbour or concealment is by the spouse of
the offender.”
20
28. Having examined the provisions of law, let us now consider the
material available on record to ascertain whether the case of the Appellant
satisfies the tests as mentioned herein above.
29. The Appellant's counsel contended that the Appellant's mobile
phone has not undergone scrutiny, and therefore, no conclusive connection
to the charged offenses could be established. However, the scrutiny report
of Bikramjit Singh @ Vicky’s (Accused No. 3) mobile phone, marked as
M-5 reveals at serial no. 10, that the present Appellant was in
communication with Accused No.3 multiple times. The Call Detail Records
(CDRs) unveils a consistent pattern of communication between the
Appellant and Bikramjit Singh (Accused No.3) even prior to their trip to
Srinagar for procurement of weapons. Detailed scrutiny of the CDRs
indicates that the Appellant had engaged in communication with Bikramjit
Singh (Accused No.3) approximately 26 times, spanning from June 22,
2018 to October 19, 2018, the day of his arrest.
30. The Appellant’s counsel has objected to the denial of bail by the
High Court and Special Court upon relying on the disclosure statements of
Bikarmjit Singh @ Vicky (Accused No.3) and the Appellant himself.
Accused No.3 in his disclosure statement (Annexure P3) has stated that on
08.07.2018, he along with Harpreet Singh @ Happy and Gurwinder Singh
21
@ Gurpreet Singh Gopi (the present Appellant) went to Srinagar for the
purchase of pistol which was sought to be used by them to take revenge of
the Sacrilege of Guru Granth Sahib. Further, the disclosure Statement of the
present Appellant (Annexure P4) corroborated the disclosure Statement of
Accused No.3 wherein he stated that he went with Accused No.3 and
Harpreet Singh @ Happy to Srinagar. Though the present Appellant has
taken the stance of not knowing the purpose of the visit to Srinagar, in his
disclosure statement, he has admitted to the fact that he suggested both
Bikramjit Singh (Accused No.3) and Harpreet Singh (Accused No.7) to
purchase the weapon from western Uttar Pradesh.
31. The Appellant’s counsel has stated that in the terror funding chart
the name of the Appellant does not find place. It is pertinent to mention that
the charges in the present case reveals the involvement of a terrorist gang
which includes different members recruited for multiple roles. Hence, the
mere fact that the accused has not received any funds or nothing
incriminating was recovered from his mobile phone does not absolve him
of his role in the instant crime.
32. The Appellant’s counsel has relied upon the case of KA Najeeb
(supra) to back its contention that the appellant has been in jail for last five
years which is contrary to law laid down in the said case. While this
argument may appear compelling at first glance, it lacks depth and
22
substance. In KA Najeeb’s case this court was confronted with a
circumstance wherein except the respondent-accused, other co-accused had
already undergone trial and were sentenced to imprisonment of not
exceeding eight years therefore this court’s decision to consider bail was
grounded in the anticipation of the impending sentence that the respondentaccused might face upon conviction and since the respondent-accused had
already served portion of the maximum imprisonment i.e., more than five
years, this court took it as a factor influencing its assessment to grant bail.
Further, in KA Najeeb’s case the trial of the respondent-accused was
severed from the other co-accused owing to his absconding and he was
traced back in 2015 and was being separately tried thereafter and the NIA
had filed a long list of witnesses that were left to be examined with
reference to the said accused therefore this court was of the view of
unlikelihood of completion of trial in near future. However, in the present
case the trial is already under way and 22 witnesses including the protected
witnesses have been examined. As already discussed, the material available
on record indicates the involvement of the appellant in furtherance of
terrorist activities backed by members of banned terrorist organization
involving exchange of large quantum of money through different channels
which needs to be deciphered and therefore in such a scenario if the
appellant is released on bail there is every likelihood that he will influence
the key witnesses of the case which might hamper the process of justice.
23
Therefore, mere delay in trial pertaining to grave offences as one involved
in the instant case cannot be used as a ground to grant bail. Hence, the
aforesaid argument on the behalf the appellant cannot be accepted.
33. Hence, we are of the considered view that the material on record
prima facie indicates the complicity of the accused as a part of the
conspiracy since he was knowingly facilitating the commission of a
preparatory act towards the commission of terrorist act under section 18 of
the UAP Act.
34. For the aforementioned reasons the bail application of the
Appellant is rejected and consequently the appeal fails. Needless to say,
that any observation made hereinabove is only for the purpose of deciding
the present bail application and the same shall not be construed as an
expression on the merits of the matter before the trial court.
….………………….J.
(M.M. Sundresh)
…….……………….J.
(Aravind Kumar)
New Delhi,
February 07, 2024
