Full Judgment Text
#
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved On : 11.07.2019
Judgment Pronounced On : 02.08.2019
CRL.A.1264/2018
GHULAM MOHD. BHAT ..... Appellant
versus
NATIONAL INVESTIGATING AGENCY ..... Respondent
Advocates who appeared in this case:
For the Appellant : Mr. Manu Sharma and Ms. Ridhima Mandhar, Advocates
For the Respondent : Mr. Amit Sharma, Special Public Prosecutor, NIA with Mr.
Ahmed Zaid, Advocate
CORAM:
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL
HON'BLE MR. JUSTICE BRIJESH SETHI
J U D G M E N T
SIDDHARTH MRIDUL, J
1. The present appeal under Section 21(4) of the National
Investigating Agency Act, 2008 (hereinafter referred to as ‘the NIA
Act’) read with Section 439 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Cr.P.C.’) assails the order dated
26.11.2018 passed by the District & Sessions Judge, Special Judge
CRL.A.1264/2018 Page 1 of 23
(NIA), Patiala House Courts, New Delhi, in case arising out of RC-
06/2011/NIA/DLI, registered by the NIA under Sections 13,17,18 and
20 of the Unlawful Activities (Prevention) Act, 1967, (hereinafter
referred to as ‘UA(P) Act’), whereby the third bail application
instituted on behalf of the appellant came to be dismissed.
2. The facts as are relevant for the adjudication of the present
appeal are briefly encapsulated as follows:-
(a) It is the case of the prosecution that, in the month of
December, 2010, the Delhi Police received an
information that two cell phones bearing No.9560872567
and 923335000846 were being used for Hawala
transactions.
(b) It is further the case of the prosecution that, case bearing
FIR No.4/2011 was registered at Police Station-Special
Cell, Lodhi Colony on 16.01.2011 under Section 120-B
of the Indian Penal Code, 1860 (hereinafter referred to as
‘the IPC’) read with Section 17 of the Unlawful
Activities (Prevention) Act, 1967 (hereinafter referred to
as ‘the UA(P) Act’). Thereafter, the investigation was
transferred to National Investigating Agency (hereinafter
CRL.A.1264/2018 Page 2 of 23
referred to as ‘NIA’) and it registered the case on
24.04.2011.
(c) The NIA submitted its charge sheet before the Special
Court on 20.07.2011 indicting four persons, including the
appellant herein.
(d) It is alleged in the charge sheet that, on the
aforementioned information, certain phone numbers were
put under surveillance and on the basis of the information
collected from the surveillance, it came to light that, one
Maqbool Pandit, who was a member of a banned outfit,
was sending huge amounts of funds to the secessionists
and terrorists based in Jammu and Kashmir via Delhi.
(e) It is further alleged that on 22.01.2011, on the basis of the
reliable information, a joint team of the Delhi Police and
Jammu and Kashmir Police, laid a trap at Bemina Bypass
Chowk, Srinagar, to apprehend the accused persons with
the illegal money.
(f) It is further alleged that, at around 10.30 a.m. a white
Maruti Car bearing No.JK 09 2942 came from the Bypass
road and stopped near the water tank, adjacent to a park.
CRL.A.1264/2018 Page 3 of 23
It is further alleged that two people namely, Ghulam
Jeelani Liloo @ Salim @ Ghulam Jeelani Sofi (A-3) and
Farooq Ahmed Dagga @ Rahi (A-4) stepped out of the
car and waited.
(g) It is further alleged that, in the meanwhile the appellant,
Ghulam Mohd. Bhat (A-1), came from the same side and
started talking to them. It is further alleged that at that
time the informer identified the above said three persons.
(h) It is further alleged that, the persons who had come in the
car (A-3 and A-4) took out a red and yellow bag from the
car, opened it and showed it to the person, who had come
on foot i.e. Ghulam Mohd. Bhat, the appellant herein.
The team members then approached the said three
persons and apprehended them.
(i) It is further alleged that, from A-1, Rs.20 lakhs, cell
phones bearing No.88039112274 and 9797720964 and a
slip containing certain phone numbers were recovered. It
is also alleged that, from the remaining two accused
persons also certain recoveries were made. It is further
alleged that, the appellant herein, was produced before
CRL.A.1264/2018 Page 4 of 23
the Court of learned Chief Judicial Magistrate, Srinagar
and one day’s transit remand was granted to the Delhi
Police.
(j) The case of the prosecution is that, the appellant while
being apprehended, tried to flee from the spot and in the
process, he received some injuries after which he was
shifted to the hospital. That further, two seizure memos
were allegedly prepared, with respect to the recoveries
allegedly made from the appellant.
(k) Thereafter, the NIA also filed a supplementary charge
sheet on 22.12.2011 in the court, indicting Mohd.
Maqbool Pandit and Aijaz Ahmed Bhat as accused No.5
and 6 respectively, wherein it was alleged that the
aforementioned have illegally raised funds in Saudi
Arabia and Pakistan and sent it to India through Hawala
channels to Mohd. Sidiq Ganai @ Lala, to promote
terrorist activities in Jammu and Kashmir, India.
(l) The District & Sessions Judge, Special Judge (NIA) vide
the order dated 03.03.2012 was pleased to frame charges
against the appellant herein under Sections 13, 17, 18 and
CRL.A.1264/2018 Page 5 of 23
20 of the UA(P) Act.
(m) The first bail application instituted on behalf of the
appellant was dismissed by the learned Special Judge
(NIA) vide order dated 18.02.2012, observing therein that
the prosecution has been able to show that there is prima
facie evidence to substantiate the accusations against the
appellant.
(n) The appellant, after 25 witnesses had been examined,
filed the second application for bail dated 08.05.2015,
pleading therein that, he had been falsely implicated;
false allegations of recovery of money had been leveled
against him; no independent witness was joined; neither
has any specific act of terrorism been alleged against him
nor has any material been placed on record to connect
him to any terrorist act; and that the testimony of the
witnesses examined thus far shows that he has been
falsely implicated. The second bail application was also
predicated on the submission that although PW-1 testified
that the appellant suffered injuries while trying to evade
apprehension, but his testimony shows that the latter was
CRL.A.1264/2018 Page 6 of 23
kept at the spot while his search was conducted.
(o) The second bail application lastly mentioned that the
appellant is 60 years old and suffering from various
ailments like hypothyroidism, gout, arthritis, prostrate
enlargement, respiratory allergy/asthma, spinal problems
and also diagnosed with T2 Hyperintense Lesions and
Hemangioma etc.
(p) The learned Special Judge (NIA), after considering the
submissions made on behalf of the appellant, dismissed
his second bail application vide order dated 05.11.2015.
(q) The appellant assailed the aforesaid order dated
05.11.2015 by instituting Criminal Appeal No.1251/2015
before this Court.
(r) The High Court vide its order dated 07.02.2018, disposed
of the said Criminal Appeal No.1251/2015 with the
following order:-
“This appeal is pending since 2015
against the order rejecting grant of bail. Since
then the trial has progressed.
In our view, it would be appropriate that
the appellant moves a fresh application before
the Trial Court to seek bail, since the Trial
Court is seized of the matter and would be able
to better appreciate the contentions of the
CRL.A.1264/2018 Page 7 of 23
parties in relation to grant of bail.
Learned counsel for the appellant,
therefore, seeks leave to move a fresh
application before the Trial Court. Liberty to
move a fresh application to seek bail is granted.
In case such an application is moved, the same
shall be considered by the Trial Court on its
own merits on an early date convenient to the
court.
The appeal stands disposed of.”
(s) Subsequent thereto, the appellant filed a third bail
application, which has been dismissed by the learned
Special Judge (NIA), vide order dated 26.11.2018,
impugned in the present appeal.
3. Mr. Manu Sharma, learned counsel appearing on behalf of the
appellant has reiterated the submissions made on behalf of the
appellant before the learned Special Judge (NIA), as detailed
hereinabove, before us as well. Mr. Manu Sharma, learned counsel
has in this behalf, invited our attention to the testimony of PW-1 to
urge that, same suffers from material contradictions and is bereft of
any material to show that there are reasonable grounds for believing
that the accusations against him are “ prima facie true” .
4. It is contended on behalf of the appellant that, Section 43D(5)
of UA(P) Act does not completely bar the grant of bail and the
decision of the Hon’ble Supreme Court in Ranjit Singh Brahmjeet
CRL.A.1264/2018 Page 8 of 23
Singh Sharma vs. State of Maharashtra & Anr. reported as (2005) 5
SCC 294 has been pressed into service, in order to buttress the
contention of the appellant.
5. Per contra, Mr. Amit Sharma, learned counsel appearing on
behalf of the NIA has invited our attention to the decision of the
Hon’ble Supreme Court in National Investigation Agency vs. Zahoor
Ahmad Shah Watali reported as (2019) 5 SCC 1 to urge that, the
material/evidence collated by them in reference to the accusations
against the appellant in the first information report, must prevail until
contradicted and overcome or disproved by other evidence; and that
the material against the appellant in the present case and on the face of
it, shows his complicity in the commission of the stated offences and
that a detailed examination by the court of the merits and demerits of
the offence is not required to be done at this stage.
6. In Zahoor Ahmad Shah Watali (supra) , the Supreme Court
was pleased to held as follows:
“22. When it comes to offences punishable under
special enactments, such as the 1967 Act, something
more is required to be kept in mind in view of the
special provisions contained in Section 43-D of the
1967 Act, inserted by Act 35 of 2008 w.e.f. 31-12-
2008. Sub-sections (5), (6) and (7) thereof read thus:
“ 43-D. Modified application of certain
provisions of the Code .—(1)-(4)*
CRL.A.1264/2018 Page 9 of 23
(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 unauthorisedly or illegally
except in very exceptional circumstances
and for reasons to be recorded in
writing.”
23. By virtue of the proviso to sub-section (5), it is the
duty of the Court to be satisfied that there are
reasonable grounds for believing that the accusation
against the accused is prima facie true or otherwise.
Our attention was invited to the decisions of this
Court, which has had an occasion to deal with similar
COCA
special provisions in TADA and M . The
principle underlying those decisions may have some
bearing while considering the prayer for bail in
relation to the offences under the 1967 Act as well.
Notably, under the special enactments such as
TADA, M COCA and the Narcotic Drugs and
CRL.A.1264/2018 Page 10 of 23
Psychotropic Substances Act, 1985, the Court is
required to record its opinion that there are reasonable
grounds for believing that the accused is “not guilty”
of the alleged offence. There is a degree of difference
between the satisfaction to be recorded by the Court
that there are reasonable grounds for believing that the
accused is “not guilty” of such offence and the
satisfaction to be recorded for the purposes of the 1967
Act that there are reasonable grounds for believing that
the accusation against such person is “ prima facie ”
true. By its very nature, the expression “ prima
facie true” would mean that the materials/evidence
collated by the investigating agency in reference to the
accusation against the accused concerned in the first
information report, must prevail until contradicted and
overcome or disproved by other evidence, and on the
face of it, shows the 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. In one sense, the degree of
satisfaction is lighter when the Court has to opine that
the accusation is “ prima facie true”, as compared to
the opinion of the accused “not guilty” of such offence
as required under the other special enactments. 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. Nevertheless, we may
take guidance from the exposition in Ranjitsing
Brahmajeetsing Sharma [ Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra , (2005) 5 SCC 294 :
2005 SCC (Cri) 1057] , wherein a three-Judge Bench
of this Court was called upon to consider the scope of
power of the Court to grant bail. In paras 36 to 38, the
Court observed thus: (SCC pp. 316-17)
“ 36 . Does this statute require that before
a person is released on bail, the court,
albeit prima facie, must come to the
conclusion that he is not guilty of such
CRL.A.1264/2018 Page 11 of 23
offence? Is it necessary for the court to
record such a finding? Would there be
any machinery available to the court to
ascertain that once the accused is
enlarged on bail, he would not commit
any offence whatsoever?
37 . Such findings are required to be
recorded only for the purpose of arriving
at an objective finding on the basis of
materials on record only for grant of bail
and for no other purpose.
38 . We are furthermore of the opinion
that the restrictions on the power of the
court to grant bail should not be pushed
too far. If the court, having regard to the
materials brought on record, is satisfied
that in all probability he may not be
ultimately convicted, an order granting
bail may be passed. The satisfaction of
the court as regards his likelihood of not
committing an offence while on bail
must be construed to mean an offence
under the Act and not any offence
whatsoever be it a minor or major
offence. … What would further be
necessary on the part of the court is to
see the culpability of the accused and his
involvement in the commission of an
organised crime either directly or
indirectly. The court at the time of
considering the application for grant of
bail shall consider the question from the
angle as to whether he was possessed of
the requisite mens rea.”
And again in paras 44 to 48, the Court observed: (SCC
pp. 318-20)
“ 44 . The wording of Section 21(4), in
our opinion, does not lead to the
conclusion that the court must arrive at a
positive finding that the applicant for
bail has not committed an offence under
the Act. If such a construction is placed,
CRL.A.1264/2018 Page 12 of 23
the court intending to grant bail must
arrive at a finding that the applicant has
not committed such an offence. In such
an event, it will be impossible for the
prosecution to obtain a judgment of
conviction of the applicant. Such cannot
be the intention of the legislature.
Section 21(4) of M COCA , therefore, must
be construed reasonably. It must be so
construed that the court is able to
maintain a delicate balance between a
judgment of acquittal and conviction and
an order granting bail much before
commencement of trial. Similarly, the
court will be required to record a finding
as to the possibility of his committing a
crime after grant of bail. However, such
an offence in futuro must be an offence
under the Act and not any other offence.
Since it is difficult to predict the future
conduct of an accused, the court must
necessarily consider this aspect of the
matter having regard to the antecedents
of the accused, his propensities and the
nature and manner in which he is alleged
to have committed the offence.
45 . It is, furthermore, trite that for the
purpose of considering an application for
grant of bail, although detailed reasons
are not necessary to be assigned, the
order granting bail must demonstrate
application of mind at least in serious
cases as to why the applicant has been
granted or denied the privilege of bail.
46 . The duty of the court at this stage is
not to weigh the evidence meticulously
but to arrive at a finding on the basis of
broad probabilities. However, while
dealing with a special statute
like M COCA having regard to the
provisions contained in sub-section (4)
of Section 21 of the Act, the court may
have to probe into the matter deeper so
CRL.A.1264/2018 Page 13 of 23
as to enable it to arrive at a finding that
the materials collected against the
accused during the investigation may not
justify a judgment of conviction. The
findings recorded by the court while
granting or refusing bail undoubtedly
would be tentative in nature, which may
not have any bearing on the merit of the
case and the trial court would, thus, be
free to decide the case on the basis of
evidence adduced at the trial, without in
any manner being prejudiced thereby.
47 . In Kalyan Chandra Sarkar v. Rajesh
Ranjan [ Kalyan Chandra
Sarkar v. Rajesh Ranjan , (2004) 7 SCC
528 : 2004 SCC (Cri) 1977] this Court
observed: (SCC pp. 537-38, para 18)
‘ 18 . We agree that a
conclusive finding in
regard to the points urged
by both the sides is not
expected of the court
considering a bail
application. Still one
should not forget, as
observed by this Court
in Puran v. Rambilas [ Pur
an v. Rambilas , (2001) 6
SCC 338 : 2001 SCC (Cri)
1124] : (SCC p. 344, para
8)
“ 8 . … Giving reasons is
different from discussing
merits or demerits. At the
stage of granting bail a
detailed examination of
evidence and elaborate
documentation of the
merits of the case has not
to be undertaken. … That
did not mean that whilst
granting bail some reasons
CRL.A.1264/2018 Page 14 of 23
for prima facie concluding
why bail was 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 for granting
bail is a requirement of law
in cases where such orders
on bail application are
appealable, more so
because of the fact that the
appellate court has every
right to know the basis for
granting the bail.
Therefore, we are not in
agreement with the
argument addressed by the
learned counsel for the
accused that the High
Court was not expected
even to indicate a prima
facie finding on all points
urged before it while
granting bail, more so in
the background of the facts
of this case where on facts
it is established that a large
number of witnesses who
were examined after the
respondent was enlarged
on bail had turned hostile
and there are complaints
made to the court as to the
threats administered by the
respondent or his
supporters to witnesses in
the case. In such
circumstances, the court
was duty-bound to apply
CRL.A.1264/2018 Page 15 of 23
its mind to the allegations
put forth by the
investigating agency and
ought to have given at least
a prima facie finding in
regard to these allegations
because they go to the very
root of the right of the
accused to seek bail. The
non-consideration of these
vital facts as to the
allegations of threat or
inducement made to the
witnesses by the
respondent during the
period he was on bail has
vitiated the conclusions
arrived at by the High
Court while granting bail
to the respondent. The
other ground apart from the
ground of incarceration
which appealed to the High
Court to grant bail was the
fact that a large number of
witnesses are yet to be
examined and there is no
likelihood of the trial
coming to an end in the
near future. As stated
hereinabove, this ground
on the facts of this case is
also not sufficient either
individually or coupled
with the period of
incarceration to release the
respondent on bail because
of the serious allegations of
tampering with the
witnesses made against the
respondent.’
CRL.A.1264/2018 Page 16 of 23
48 . In Jayendra Saraswathi
Swamigal v. State of T.N. [ Jayendra
Saraswathi Swamigal v. State of T.N. ,
(2005) 2 SCC 13 : 2005 SCC (Cri) 481]
this Court observed: (SCC pp. 21-22,
para 16)
‘ 16 . … The considerations
which normally weigh with
the court in granting bail in
non-bailable offences have
been explained by this
Court in State v. Jagjit
Singh [ State v. Jagjit Singh ,
(1962) 3 SCR 622 : AIR
1962 SC 253 : (1962) 1 Cri
LJ 215] and Gurcharan
Singh v. State (UT of
Delhi) [ Gurcharan
Singh v. State (UT of
Delhi) , (1978) 1 SCC 118 :
1978 SCC (Cri) 41] and
basically they are — the
nature and seriousness of
the offence; the character of
the evidence; circumstances
which are peculiar to the
accused; a reasonable
possibility of the presence
of the accused not being
secured at the trial;
reasonable apprehension of
witnesses being tampered
with; the larger interest of
the public or the State and
other similar factors which
may be relevant in the facts
and circumstances of the
case.’”
24. A priori, 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
CRL.A.1264/2018 Page 17 of 23
at this stage. 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.
25. From the analysis of the impugned judgment
[ Zahoor Ahmad Shah Watali v. NIA , 2018 SCC
OnLine Del 11185] , it appears to us that the High
Court has ventured into an area of examining the
merits and demerits of the evidence. For, it noted that
the evidence in the form of statements of witnesses
under Section 161 are not admissible. Further, the
documents pressed into service by the investigating
agency were not admissible in evidence. It also noted
that it was unlikely that the document had been
recovered from the residence of Ghulam Mohammad
Bhatt till 16-8-2017 (para 61 of the impugned
judgment). Similarly, the approach of the High Court
in completely discarding the statements of the
protected witnesses recorded under Section 164
Cr.P.C., on the specious ground that the same was kept
in a sealed cover and was not even perused by the
Designated Court and also because reference to such
statements having been recorded was not found in the
charge-sheet already filed against the respondent is, in
our opinion, in complete disregard of the duty of the
Court to record its opinion that the accusation made
against the accused concerned is prima facie true or
otherwise. That opinion must be reached by the Court
not only in reference to the accusation in the FIR but
also in reference to the contents of the case diary and
including the charge-sheet (report under Section 173
CrPC) and other material gathered by the investigating
agency during investigation.
26. Be it noted that 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. To wit, soon after the arrest of the accused on
the basis of the FIR registered against him, but before
filing of the charge-sheet by the investigating agency;
after filing of the first charge-sheet and before the
filing of the supplementary or final charge-sheet
consequent to further investigation under Section
CRL.A.1264/2018 Page 18 of 23
173(8) CrPC, until framing of the charges or after
framing of the charges by the Court and recording of
evidence of key witnesses, etc. However, once charges
are framed, it would be safe to assume that a very
strong suspicion was founded upon the materials
before the Court, which prompted the Court to form a
presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged against the
accused, to justify the framing of charge. In that
situation, the accused may have to undertake an
arduous task to satisfy the Court that despite the
framing of charge, the materials presented along with
the charge-sheet (report under Section 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.
27. For that, 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. In any case, the question of
discarding the document at this stage, on the ground of
being inadmissible in evidence, is not permissible. For,
the issue of admissibility of the document/evidence
would be a matter for trial. The Court must look at the
contents of the document and take such document into
account as it is.”
7. In view of the foregoing observations, the determination to be
made by this court at this stage is within a very narrow compass. What
the court is required to examine is the issue, whether there are
reasonable grounds for believing that the accusations made against the
appellant are “ prima facie true” .
CRL.A.1264/2018 Page 19 of 23
8. In this behalf we must observe at the outset that, it is an
admitted position that the co-accused, A-3 (Ghulam Jeelani Liloo) and
A-4 (Farooq Ahmed Dagga), have since pleaded guilty to the charges
framed against them and stand convicted vide judgment and order on
sentence dated 20.05.2019 and 04.06.2018 respectively. Further a
perusal of the order passed by the Special Court, NIA as well as the
material on record, would prima facie show the following:-
(i) That the appellant during the relevant period made and
received calls to and from Farooq Ahmed Dagga (A-4)
and Aijaz Ahmad Bhat (A-6) on the mobile phone
No.9797720964 seized from him vide seizure memo D-
10 (Ex.PW1/B) and CDR D-72 in relation thereto.
(ii) That a perusal of CDR D-72//87 shows that, calls were
received by the appellant on the aforementioned mobile
number 966548948415 allegedly belonging to A-6 Aijaz
Ahmad Bhat (absconder) on 20.01.2011.
(iii) That CDR No.D72/104 also shows receipt of calls by the
appellant from Mobile No.9622431733 seized from A-4
Farooq Ahmed Dagga vide seizure memo D-13. The
CRL.A.1264/2018 Page 20 of 23
transcript (D44/4) of the aforesaid conversation between
the appellant and A-6 alludes to ‘ Dukan Khula Rakho’ ,
which has been testified by PW-27 in his deposition as a
code word for an unlawful act.
(iv) That vide forensic voice examination report (D-46) dated
28.06.2011, Ex.PW-11/B, which has been opined by the
expert that the voice in the aforesaid conversation is that
of the appellant.
(v) That the NIA has alleged that the appellant is a habitual
offender of terror financing cases and has been charged as
an accused in case FIR No.252/07, under Sections
17,18,21,24,40 of UA(P) Act at Police Station-
Udhampur, Jammu and Kashmir, India; and FIR
No.95/2007, under Sections 10,17,18,20 & 21 of UA(P)
Act and Section 120-B, 121-A RPC, Police Station-
Ramban, Jammu and Kashmir.
9. In our considered view, the relevant provision of the UA(P)
Act, in relation to the grant or release on bail to an accused person, is
enunciated as a non-obstante clause, which clearly and unequivocally
postulates that, if the court is of the opinion that, there are reasonable
CRL.A.1264/2018 Page 21 of 23
grounds for believing that the accusations against such person are
prima facie true, he shall not to be released on bail. (Ref: Syed Mohd.
Zishan Ali vs. The State (NCT of Delhi, CRL.A.923/2018, decided
by this Court on 29.04.2019)
10. Further, as eloquently observed by the Hon’ble Supreme Court
in Zahoor Ahmad Shah Watali (supra) that, “ a priori, the exercise to
be undertaken by the Court at this stage – of giving reasons for grant
of 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. 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”. It has also been enunciated that, “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 ”. (Ref: Zahoor Ahmad Shah
Watali (supra), paragraphs 24 and 26)
11. In view of the foregoing, we find no warrant to interfere with
CRL.A.1264/2018 Page 22 of 23
the impugned order dated 26.11.2018 rendered by the District &
Sessions Judge, Special Judge (NIA), Patiala House Courts, New
Delhi. The appeal being devoid of merits, is consequently dismissed.
SIDDHARTH MRIDUL
(JUDGE)
BRIJESH SETHI
(JUDGE)
AUGUST 02, 2019
dn
CRL.A.1264/2018 Page 23 of 23