UNION TERRITORY THROUGH POLICE STATION BIJBEHARA (POLICE / HOME) vs GHULAM NABI SUMJI

Serial No. 1

Suppl Cause List

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRLA(D) 16/2026
Reserved on: 17/08/2026.
Pronounced on: 08/09/2026.
Uploaded on: 08/09/2026.
Union Territory Through
Police Station Bijbehara

…Appellant.
Through: Mr. Mohsin Qadiri, Sr. AAG with
Ms. Maha Majeed, Assisting Counsel
Vs.
Ghulam Nabi Sumji
S/o. Late Mohammad Sumji
R/o. Bijbehara Anantnag



...Respondent.
Through: Mr. Saif Ul Islam Malik, Advocate with
Mr. Mudasir Ahmad, Advocate
CORAM:
HON’BLE THE CHIEF JUSTICE (ACTING)
HON’BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
JUDGMENT
(Per: Mohd Yousuf Wani-J)

1. This appeal, having been filed in terms of the provisions of Section
21(4) of National Investigation Agency Act, 2008, impugns the order
dated 06-12-2025, read with order dated 29-12-2025 passed by the
Court of Ld Special Judge [designated under ULA(P) Act, 1967]
Anantnag and hereinafter referred to as the “Trial Court” for short,
whereby the Ld. Trial Court enlarged the Respondent [Accused] to
bail in case FIR No. 54 of 2024 in the offences u/s 10 and 11,
Unlawful Activities (Prevention) Act [“ULA(P) Act” for Short ], 121
and 121-A of the Indian Penal Code [“IPC” for short].
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 1

2. The Ld Trial Court, vide order dated 06-12-2025, granted interim
bail in favour of the Respondent/Accused, which was subsequently
made absolute on 29-12-2025.

3. The impugned orders have been assailed on the main grounds that
same are perverse, bad in the eyes of law and against the legal
principles governing the subject of bail, particularly in the cases
falling under ULA(P) Act. That the Ld. Trial Court, while
adjudicating upon the bail application giving rise to the aforesaid
orders, has proceeded to conduct a mini-trial by going into the merits
of the case. That the Ld. Trial Court did not appreciate the allegation
against the respondent-accused to the effect that he was found
continuing the activities of a banned organization, i.e., Muslim
Conference, Jammu and Kashmir, Sumji Faction. That the Ld. Trial
Court has commented upon the material/evidence collected by the
Investigating Agency by observing that same does not establish a
clear prima facie case. That the said observations of the Ld. Trial
Court have touched the merits of the evidence available with the
investigating agency/prosecution. That the observation of the Ld.
Trial Court to the effect, " A mere possession of literature and
organizational stationary without clear and contemporaneous links
to operational violent acts, recruitment for training, procurement or
direction of an offense, may not, in view of the record available with
the court, establish the prima facie threshold required to deny bail in
the case ," is also erroneous on facts and in law, as the material
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 2

recovered from the possession of the Respondent/Accused
establishes the fact that he intended and supported the claim of
secession of UT of Jammu and Kashmir from the Union of India
through his written literature.
That the respondent-accused advocated, abetted, and incited the
commission of unlawful activities. That the Ld. Trial Court has
observed in the basic impugned order dated 06.11.2025, that the
offenses leveled against the respondent-accused do not fall within
Chapters IV and VI of the ULA(P) Act, and as such, do not attract
the bar under Section 43-D (5) of the said Act. That despite the rigor
of Section 43-D of ULA(P) Act being not applicable in the case of
the respondent, the Ld. Trial Court ought to have kept in mind the
heinousness and severity of the allegations against the respondent,
being punishable u/s 10 and 13 of ULA(P) Act. That the Ld. Trial
Court did not appreciate the fact regarding apprehension of the
respondent's misusing the concession of bail, which was apparent as
he had already been an absconder in another case titled “UT of J&K
versus Mohd Hussain Zargar and others” , bearing FIR No. 249 of
2009, of Police Station Bijbehara.
That the respondent was being provided all the necessary
facilities in jail and there was nothing on record suggestive of the
fact that he suffered from such a disease that could not have been
taken care of by the prison authorities. That the basic impugned order
dated 06-12-2025 is cryptic, without any reason, and as such, is not
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 3

within the four corners of law. That the Ld. Trial Court was obliged
under law to exercise its discretion in a judicious manner, with great
circumspection, having regard to the seriousness of the crime alleged
against Respondent/Accused. That the Ld Trial Court has acted with
leniency while passing the impugned orders. That during the course
of investigation, the commission of the offences punishable u/s 121,
121A IPC could not be established, when the offenses u/s 10 and 13
of ULA(P) Act were found prima facie established against the
respondent, regarding which the government vide notification S.O.
No. 35 dated 10th February 2024, granted sanction for prosecution.

4. We have heard the learned counsel for the parties in respect of the
matter.

5. The learned Senior AAG while reiterating his stand taken in the
memo of appeal submitted that the impugned orders, whereby the
respondent was initially admitted to interim bail and subsequently to
absolute bail respectively, suffer from illegality and perversity for
having been passed in violation of set principles of law on the subject
as evolved by the Hon'ble Apex Court and various other High Courts
of the country, including this court, for consideration, especially in
respect of bail petitions covering heinous anti-national offences. He
submitted that as on the date of passing of the impugned orders, the
respondent-accused was prima facie involved in the commission of
offences punishable under sections 10 and 13 ULA(P) Act, 121 and
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 4

121A IPC, arising out of the case FIR No. 54 of 2024 of Police
Station Bijbehara.
The learned Senior AAG submitted that respondent/accused
continued to be the member of an unlawful declared association and
also took part in, committed, advocated, abetted, advised and incited
the commission of unlawful activities punishable u/s 10 and 13 of the
ULA(P) Act. He further contended that the respondent/accused, as
on the date of passing of the impugned orders, was involved in the
commission of offences punishable u/s 121 and 121A IPC, providing
punishment for waging or attempting to wage war or abetting the
waging of war against the Government of India and also of
conspiracy to commit such offences. He contended that the learned
trial court, while underestimating the seized record evidencing the
commission of the aforesaid offences, proceeded to observe that
there appear no prima facie ground of the involvement of the
respondent/accused in the commission of offences punishable under
the aforementioned sections of law. He contended that the learned
Trial Court, while exceeding its powers limited for consideration of
bail application in respect of the offences under ULA(P) Act, made
an unfounded observation that respondent does not seem to be prima
facie involved in the commission of the aforesaid offences. He
contended that even if the statutory bar in terms of provisions of
Section 43D of ULA(P) Act is not attracted in the case, yet the
respondent/accused was not deserving his enlargement in heinous,
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 5

non-bailable and anti-national offences. He further contended that
there is every apprehension of the misuse of concession of bail by the
respondent/accused who had already been declared an absconder in
another case FIR.

6. Per contra , the learned counsel for the respondent-accused very
vehemently contended that the appeal deserves to be outrightly
dismissed as being meritless. He contended that the
respondent/accused, being an old-aged and infirm person, has been
falsely and frivolously implicated in the case FIR when he is
innocent and has not committed the alleged offenses. That the
respondent did not commit any unlawful activity as alleged. He
contended that the Ld. Trial Court has rightly, on the basis of the
police report, made its satisfaction to the effect that prima facie there
appear no grounds of involvement of the respondent in the offenses
levelled against him. He contended that the statutory bar under
Section 43D, ULA(P) Act does not operate in respect of the offenses
u/s 10 and 13 of the ULA(P) Act, which do not fall within Chapters
IV and VI of the Act.
The learned counsel further contended that the basic interim bail
order reveals the observation of the Ld. Trial Court that prosecution
did not demonstrate any specific instance since the arrest of the
respondent regarding his attempt to tamper with the prosecution
evidence, nor did it furnish any material showing that the respondent
has previously evaded the court process or has absconded. He
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 6

contended that it has been further observed by the Ld. Trial Court in
the basic interim order dated 16.12.2025 that the concern of the
prosecution regarding tampering/influencing of witnesses and also
risk of evasion require careful mitigation to be taken care of by
imposition of reasonable bail conditions. He further contended that
the respondent is a senior citizen of approximately 70 years of age
who was arrested in the case on 18.11.2025. That he suffers from
multiple chronic, age-related ailments, hypertension, cardiac
complications, chronic respiratory disorder, and degenerative joint
disease, requiring continuous medical care and treatment.
It was further contended by the learned counsel for the
respondent/accused that the accused, during investigation of the case,
voluntarily attended the police station concerned in connection with
the investigation of the case FIR, but he was ultimately arrested in a
mechanical manner. He further contended that the interim bail order
dated 06.12.2025 came to be made absolute by the Ld. Trial Court by
order dated 29.12.2025, when there was nothing incriminating
against the respondent regarding his violation of any of the bail
conditions.
The learned counsel further contended that the grant of bail is a
rule and its denial an exception, especially in cases where primarily
there is no statutory bar and secondly, where there appear no
reasonable grounds of involvement of the accused in the offenses
punishable with death or imprisonment for life, in alternative. The
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 7

learned counsel further contended that the offenses punishable u/s
121 and 121A IPC, which were also leveled against the respondent,
were not found established against him during investigation of the
case. That the involvement of the respondent in the remaining
offences u/s 10 and 13 of the ULA(P) Act is also baseless and
without any sort of material evidence. He contended that the present
appeal filed by the State is liable to be outrightly rejected, being
devoid of any merit. That the allegations levelled against the
respondent are vague, general and without any substance. That the
impugned bail orders are well sustained under law and do not suffer
from any illegality or perversity.

7. We have perused the record of the instant appeal and a thoughtful
consideration has also been accorded to the rival contentions
advanced at the bar.

8. The prosecution case, in nutshell, is that on 23.03.2024, an
information was received by Police Station Bijbehara to the effect
that certain Leaders/Members of Muslim Conference, JK Sumji
Group led by respondent, despite being aware of the fact that the said
organisation has been declared as an unlawful organisation, are
carrying anti-national activities in the jurisdiction of the police
station and are provoking the youth to carry out agitations for
secession of Jammu and Kashmir from the Union of India. That on
receipt of the said information case FIR No. 54 of 2024 under
sections 10, 13 ULA(P) Act and Sections 121, 121A IPC was
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 8

registered and investigation commenced. That search of the
respondent's residential premises was conducted in the presence of
the Executive Magistrate and some witnesses. That the search led to
the recovery of some documents and materials of the unlawful
association. That the statements of the witnesses came to be recorded
during investigation. That the recovered material and the witnesses’
statements prima facie provided link between the respondent/accused
and the continued activities of the organization having been already
declared unlawful. That the respondent-accused was arrested on
18.11.2025.

9. As hereinbefore mentioned during reference to the rival stands of the
parties, the Ld. Trial Court initially granted interim bail on
06.12.2025 in favor of the respondent/accused, subject to some
conditions, upon being satisfied that the statutory bar u/s 43D of
ULA(P) Act is not attracted in the case and secondly there appear no
reasonable grounds of the involvement of the respondent/accused in
the commission of the offenses u/s 121, 121A IPC. The Ld. Trial
Court has observed in the basic impugned order, while granting the
interim bail, that the apprehensions of the prosecution regarding
misuse of concession can be taken care of by the imposition of
reasonable restrictions on the bail.

10. There appears to be no illegality or perversity in the passing of the
impugned orders by the Ld. Trial Court. The Ld. Trial Court initially
passed an interim bail order on 06.12.2025 in favor of the
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 9

respondent/accused, enlarging him up to 29.12.2025 with the
imposition of some reasonable conditions as to the furnishing of
personal and surety bonds for his cooperation during investigation,
abstinence from any attempt to tamper with the evidence or misusing
the concession of bail in any other manner. The Ld. Trial Court
subsequently on 29.12.2025, made the interim order dated
06.12.2025 as absolute, upon being satisfied that nothing adverse
was put-forth against the respondent regarding his violation of any
bail conditions.

11. Admittedly, the offenses punishable u/s 10 and 13 of the ULA(P)
Act, falling under Chapter-III of the ULA(P) Act, do not attract the
bar u/s 43D of the Act. Section 10 of the ULP Act, in the backdrop
of the allegations against the respondent/accused, carries a
punishment of imprisonment for a term which may extend to two
years with liability to fine also. Section 13 of the Act provides for
punishment of imprisonment for a term which may extend to seven
years with liability to fine also.
The offense u/s 121 IPC, which attracts the statutory bar under
section 437 of the repealed Code of Criminal Procedure,
corresponding to section 481 of BNSS, was not found established
along with offence under section 121A IPC during investigation of
the case, and after the passing of the impugned orders, which were
accordingly dropped in the case FIR by the investigating agency.
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 10

Even in the case of offenses providing the punishment of death
or imprisonment for life in alternative, bail can be granted by a court
after being satisfied that there appear no reasonable grounds of the
involvement of the accused in the said offenses. The Ld. Trial Court
has made a similar observation while passing the basic impugned
order dated 06-12-2025, as the offenses under sections 121 and 121A
IPC were intact in the FIR at the time of passing of the said orders.

12. The provisions of clause (5) of Section 43-D ULA (P) Act place an
embargo on the grant of bail to an accused involved in the offence(s)
falling under the Chapters IV and VI of ULA (P) Act when, the
accusation against him appears to be prima facie true. Such
restrictions imposed by the ULA (P) Act are an addition to the
restrictions under the Code/BNSS any other law for the time being in
force on granting bail.

13. It is apt to reproduce the provisions of clauses (5) and (6) of the
Section 43D of ULA (P) Act for ready reference: -
“43D. Modified application of certain provisions of the Code.
(1) ………………………
(2) ………………………
(3) ………………………
(4) ………………………
(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
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 11

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)
are in addition to the restrictions under the Code or any other law
for the time being in force on granting of bail.
(7) ……………………………………………….”

14. Thus, it is clear that an accused alleged to have committed the
offences falling under the Chapters IV and VI of the ULA (P) Act,
whether facing investigation or trial has to first come out of the
embargo placed by the Section 43D (5) of the Act, whereafter his
case for grant of bail can be considered under the provisions of
Sections 437 & 439 of the “Code” respectively corresponding to the
Sections 480 & 483 of “BNSS”. If the court is of the opinion on the
perusal of the Case Diary file or the record of the police
report/challan in case of pendency of the trial, that accusation against
the accused appears to be prima facie true, bail cannot be granted.
The inference regarding the “ Prima facie True ” or “otherwise” of
the prosecution case during the investigation stage can be drawn
from the perusal of the case diary and during trial from the record of
the Police report/challan.
The words “ prima facie true ” cannot be read and understood to
mean proved as used in the Evidence Act.
Such an interpretation would set at naught the power vested in a
Court to grant bail pending trial. The expression “ Prima facie true ”
would obviously mean something more than mere
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 12

suspicion/conjectures and something less than “proved”. The
inference regarding “ Prima facie true ” would vary from case to case
and from one accused to another. What may be “ Prima facie true ” in
one case may not be so in another and therefore, the said expression
cannot on account of a discretion vested in the Court be put in a strait
jacket. Each case would have to be dealt with and examined on its
own facts and decided.

15. The consideration at the time of taking up a bail application for
disposal is different from the consideration to be adopted at the end
of the trial for holding an accused, guilty or not guilty.

In considering an application for bail, the court is not required to
conduct a preliminary trial of the case and consider the probabilities
of the accused being found guilty or innocent.

The Courts while deciding the bail applications involving the
offences in respect of which the Code/BNSS or some Special Statute
places embargo/limitations will be traversing beyond their proper
ambit and would be exceeding the limit of their functions, if they get
engaged in discovering the guilt or innocence of the
Applicant/accused, which can only be determined at the conclusion
of the trial.

16. Obviously, the standard applied for grant of bail is higher than
the standard to be applied for framing of charge. While as in framing
charge, Court may be of prima facie opinion that offence has been
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 13

committed by the accused, but for refusing bail, Court should be of
the opinion also that accusation is” Prima facie true ”.

17. The provisions of section 437 of the Code corresponding to Section
480 BNSS again place an embargo on the grant of bail to an accused
in respect of whom there appear to be “ reasonable grounds ”
regarding his involvement in an offence punishable with death or
imprisonment for life. However, such bar does not operate where
imprisonment for life is provided disjunctive of death penalty. Even
if one escapes the embargo placed under aforesaid provisions of the
Code/BNSS, his case in respect of non-bailable offences is subject to
the discretion of the Court, which is to be exercised on the sound
judicial principles being evolved from time to time by the Hon’ble
Apex Court and the different High Courts of the country. The use of
words “ may ” in Sections 437 and 439 of the Code (corresponding to
480 & 483 BNSS) implies the discretion of the Court for grant of
bail in ordinary non-bailable offences.

18. There is no single golden rule or any single litmus test for
consideration of a bail application. However, the following
guidelines/governing principles, which are not exhaustive are to be
kept in mind while considering a bail application.

i) The judicial discretion must be exercised with the utmost care and
circumspection.

ii) That the Court must duly consider the nature and the circumstances
of the case including:
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 14

a) reasonable apprehension of the witnesses being
tampered;
b) investigation being hampered or
c) the judicial process being impeded or subverted.
iii) The liberty of an individual must be balanced against the larger
interests of the society and the State.
iv) The court must weigh in the judicial scales, pros and cons varying
from case to case all along bearing in mind two paramount
considerations viz:
i) grant of bail quo an offence punishable with death or
imprisonment for life is an exception and not the Rule;
ii) the court at this stage is not conducting a preliminary trial;
iii) the nature of the charge is the vital factor, the nature of
evidence is also pertinent, the punishment to which the
party may be liable also bears upon the matter and the
likelihood of the applicant interfering with the witnesses or
otherwise polluting the course or justice;
iv) the facts and circumstances of the case play a predominant
role.


19. Admittedly, it is now well settled by a catena of judgments of the
Hon’ble Supreme Court that the power to grant bail is not to be
exercised as if punishment before trial is being imposed. The only
material consideration in such situation is whether the accused would
be readily available for his trial and whether he is likely to abuse the
discretion granted in his favour by tampering with evidence.

20. It is also well settled that the bar imposed under Section 437 of the
Code corresponding to Section 480 BNSS on the exercise of the
discretion in the matters of bail subject to proviso contained in the
section is confined to the offences providing sentence of death or
imprisonment for life in alternate of the death and the cases covered
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 15

by the offences carrying sentences of imprisonment for life
disjunctive of death sentence are exempted from the embargo.


21. Hon’ble Apex Court in “Gur Bakash Singh vs State of Punjab
AIR 1980 SC 1632” , referred to the following extract from the
American jurisprudence having bearing on the subject of bail,
“ where the grant of bail lies within discretion of the court, granting
or denial is regulated to a large extent, by the facts and
circumstances of each particular case. Since the object of detention
order/ imprisonment of the accused is to secure his appearance and
submission to jurisdiction and the judgment of the court, the
preliminary enquiry is whether a recognizance or bond would
affect that end. It is thus clear that the question whether to grant
bail or not depends for its answer upon a variety of circumstances,
the cumulative effect of which must enter the judicial verdict. Any
one single circumstance cannot be treated as of universal validity
or necessarily justifying the grant or refusal of bail .”


22. Admittedly, in case of non-bailable offence, which do not carry the
sentence of death or imprisonment for life in alternative, bail is a rule
and its denial an exception especially where there is nothing on
record to show that the accused if admitted to bail will jump over the
concession of bail and will tamper with the prosecution witnesses.

23. It is a trite that two paramount cons.iderations viz: likelihood of
accused fleeing from justice and his tampering with prosecution
evidence relate to the ensuring of fair trial of the case in a court of
justice, it is essential that due and proper weightage should be
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 16

bestowed on these two factors apart from others. The requirements as
to bail are merely to secure the attendance of the accused at the trial.


24. Bail or jail at the pre-trial or post-conviction stage belongs to the
blurred area of the criminal justice system and largely hinges on the
hunch of the bench, otherwise called judicial discretion. Personal
liberty deprived when bail is refused is too precious a value of our
constitutional system recognized under Article 21 that the crucial
power to negate it is a great trust exercisable not casually but
judiciously with lively concern for the cost to the individual and the
community. After all personal liberty of an accused or convict is
fundamental, suffering lawful eclipse only in terms of procedure
established by law (Per Hon’ble Mr. Justice V. R. Krishna Iyer in G.
N. Nara Simhula vs Public Prosecutor Andhra Pradesh AIR 1978 SC
429).

25. The learned trial court appears to have committed no illegality by
enlarging the respondent/accused initially on interim bail subject to
some reasonable conditions so as to rule out any apprehension of
misuse of concession by him. The interim order dated 06-12-2025
came to be made absolute by learned trial court on 29-12-2025 when
nothing adverse was reported to the court regarding the misuse of
any of the bail conditions.

26. The learned trial court in the basic impugned order dated 06-12-2025
specifically mentioned that the observations made therein have been
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 17

made for the limited purpose of the disposal of the bail application,
which shall not be treated as any expression of the court on the
merits of the prosecution case, which has to be decided at the trial.
The learned trial court has also vide impugned order dated 06-
12-2025 kept the prosecution or the investigating agency at liberty to
move the court seeking cancellation of bail in case of breach of any
of the bail conditions. The conditions imposed by the learned trial
court at para 14 of the impugned order take care of any apprehension
of the prosecution regarding the misuse of concession by the
respondent.

27. In the backdrop of the aforementioned discussion, there seems to be
no merit in the instant appeal, which is accordingly dismissed .



(MOHD YOUSUF WANI) (SANJEEV KUMAR)
JUDGE CHIEF JUSTICE (ACTING)
SRINAGAR
08.09.2026
Shahid Manzoor

1. Whether the judgment is speaking Yes


2. Whether approved for reporting in
Law Journal/Reporter (print/electronic) Yes

3. Whether approved for reporting in Press/Media No
C R L A ( D ) 1 6 / 2 0 2 6 P a g e 18