Irfan Tariq Antoo vs State (Nct Of Delhi)
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16.10.2026
Pronounced on: 30.10.2026
Uploaded on: 30.10.2026
# CNR No. DLHC010464202023
+ CRL.A. 954/2023
IRFAN TARIQ ANTOO .....Appellant
Through: Ms.Deeksha Dwivedi,
Mr.Fahad M. Khan, Mr.Nilesh
Jain and Mr.Paras N. Singh,
Advs.
versus
STATE (NCT OF DELHI) .....Respondent
Through: Mr.Amit Tiwari, SPP with
Ms.Ayushi Srivastava,
Mr.Arpan Narwal, Mr.Ujjwal
Tyagi and Mr.Kushagra Malik,
Advs. for NIA.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE ARUN BHARDWAJ
J U D G M E N T
NAVIN CHAWLA, J.
1. This appeal has been filed by the appellant under Section 21(4)
of the National Investigation Agency Act, 2008 (hereinafter referred
to as, „NIA Act‟) read with Section 43D (5) of the Unlawful Activities
Prevention Act, 1967 (hereinafter referred to as, „UAPA‟), assailing
the order dated 07.08.2023 passed by the learned Additional Sessions
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Judge-03, New Delhi, Patiala House Courts (hereinafter referred to as,
the „Trial Court‟) in NIA Case No. 2/2022 titled “NIA v. Tariq
Ahmad Dar & Ors.” arising out of RC No. 29/2021/NIA/DLI,
whereby the learned Trial Court rejected the bail application filed by
the appellant herein.
2. The appellant herein has been arrayed as accused no. 24 in the
above trial.
3. The learned Trial Court, while rejecting his application for
release on bail, held that the Disclosure Statement of the appellant
dated 28.12.2021 (D-162) cannot prima facie be held to be
inadmissible, as the prosecution was relying upon the consequent
discovery of a fact in the form of recovery of bullets of AK-47 from
witness X-12. The learned Trial Court further considered the
statements of witness X-12, X-1, PW-244 (Arif Qayoom Khuroo),
PW-265 (Sheikh Irfan) and PW-266 (Yasir Ahmed Sheikh), and held
that the veracity of the statements of these witnesses and the facts
stated by them could only be examined later in the trial and, therefore,
at that stage, the appellant is not entitled to be released on bail in light
of the restriction contained in Section 43D (5) of the UAPA. We quote
from the order of the learned Trial Court as under:
“23. No doubt veracity of statement of these
witnesses and facts stated by them can be well
examined later in the trial but in the light of
Section 43D(5) of UA(P) Act, this court is of
the view that statements of these witnesses
indicate that allegations against the accused
are prima facie genuine. Judgments of Apex
Court in Thwaha Fasal vs. Union of India
(supra) as relied upon, can be of no help for
the accused/ applicant in this case because
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there is evidence regarding handing over of
hand grenades, concealing of bullets of AK-47
etc. clearly showing overt act of the accused
towards furthering the cause/object of terrorist
organizations. Similarly, judgment of J&K
High Court in Waheed ur Rehman Parra vs.
UT of J&K (supra), is completely on different
factual and legal context. Thus for the reasons
so stated, bail application of accused/
applicant stands declined.”
SUBMISSIONS OF THE LEARNED COUNSEL FOR THE
APPELLANT:
4. The learned counsel for the appellant, at the outset, submits that
though by an order dated 30.07.2024 passed by the learned Trial Court
subsequent to the impugned order, charge under Sections 120B/121A
of the Indian Penal Code, 1860 (hereinafter referred to as, „IPC‟) and
Section 18 of the UAPA has been framed against the appellant herein,
the appellant stands discharged of offences under Sections 20, 38, 39
of the UAPA and Section 25(1A) of the Arms Act, 1959. She submits
that the said order on charge would not affect the right of the appellant
to be released on bail, inasmuch as there has been a considerable delay
in the conclusion of the trial. The appellant stood arrested on
16.12.2021, and though almost 5 years of custody period has been
undergone, presently out of the 356 witnesses cited by the
prosecution, only 21 witnesses have been examined. Placing reliance
on the judgments of the Supreme Court in Union of India v. K.A.
Najeeb , (2021) 3 SCC 713; Javed Gulam Nabi Shaikh v. State of
Maharashtra & Anr. , (2024) 9 SCC 813; and Sheikh Javed Iqbal v.
State of Uttar Pradesh , (2024) 8 SCC 293; and of this Court in Mohd.
Hakim v. State (NCT of Delhi), 2021 SCC OnLine Del 4623, she
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submits that the appellant is entitled to be granted bail as his
prolonged incarceration in custody is in violation of his Fundamental
Rights guaranteed under Article 21 of the Constitution of India.
5. She further submits that even otherwise, no case is made out
against the appellant. She submits that the alleged disclosure statement
of the appellant cannot be relied upon as no subsequent discovery of
fact was made thereby. In support, she places reliance on the judgment
of the Supreme Court in Yedala Subba Rao & Anr. v. Union of India ,
(2023) 6 SCC 65.
6. She submits that the star witness of the prosecution was X-1,
who had deposed about the appellant allegedly handing over grenades
to him for giving them to a co-accused, Rashid Muzafar Ganai
(accused no. 22). The said witness stands examined before the learned
Trial Court as PW-2. Taking us through the testimony of the said
witness, the learned counsel submits that the said witness is clearly
unreliable and was deposing under the influence of the National
Investigation Agency (hereinafter referred to as, „NIA‟) to save
himself from prosecution. She submits that the said witness was, at
best, an accomplice and, therefore, his statement has to find
corroboration in material particulars, as provided under Section 133
read with Illustration (b) to Section 114 of the Indian Evidence Act,
1872. She submits that no independent corroboration of the statement
of this witness qua the appellant is either pointed out anywhere in the
chargesheet nor has come in the evidence.
7. She submits that an offence of conspiracy cannot be established
on the basis of mere suspicion and surmises, unsupported by cogent
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and acceptable evidence. In support, she places reliance on the
judgments of the Supreme Court in Central Bureau of Investigation,
Hyderabad v. K. Narayana Rao , (2012) 9 SCC 512; and P.K.
Narayanan v. State of Kerala , (1995) 1 SCC 142.
8. She submits that even if the allegation regarding the handing
over grenades is to be accepted, the same cannot constitute an offence
under Section 18 of the UAPA. In support, she places reliance on the
judgment of the Supreme Court in Shoma Kanti Sen v. State of
Maharashtra & Anr., (2024) 6 SCC 591.
9. As far as the witness X-12 is concerned, it is the case of the
NIA that the appellant handed over 15 rounds of bullets to X-12,
which were later recovered from X-12, as recorded in the seizure
memo (D-142). The learned counsel states that the said recovery
cannot be fastened on the appellant, inasmuch as X-12 states that the
said bullets were handed over by her, on her own, and not pursuant to
any pointing out by the appellant. She submits that the alleged
recovery was effected from a third party 24 days after the alleged
disclosure statement was given by the appellant, with no chain of
custody linking the recovery to any pointing out by the appellant
himself.
10. As far as PW-244 (Arif Qayoom Khuroo) is concerned, she
submits that the said witness is, again, a self-confessed accomplice
who claims to have knowingly generated fake SIM cards at the request
of the appellant. Yet, he is being made a witness against the appellant.
She submits that his statement also remains uncorroborated, as the
prosecution has neither disclosed any mobile number for which these
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SIM Cards were given nor any Customer Application Forms (CAFs)
for these numbers have been filed on record.
11. In respect of PW-265 (Sheikh Irfan) and PW-266 (Yasir Ahmed
Sheikh), she submits that their testimony, apart from being wholly
unworthy of acceptance, is even otherwise based on hearsay. She
submits that there is no evidence on record to show that the car was
given by them to the appellant or that it was used in any manner for
any terrorist activity. Their allegations are only based on what they
heard and not on what they saw.
12. On the data retrieved from the appellant‟s phone, she submits
that the same has again not been corroborated by showing that the
mobile numbers with which the appellant had made contact were
linked to any terrorist organisation or to any terrorist activity. Such
material remains uncorroborated and does not, by itself, establish
active participation of the appellant in terrorist activities or show a
nexus between him and the terrorist act.
13. Placing reliance on the judgments of the Supreme Court in
Kehar Singh & Ors. v. State (Delhi Administration) , (1988) 3 SCC
609; and State of Kerala v. P. Sugathan & Anr. , (2000) 8 SCC 203,
she submits that the concurrence of parties to a conspiracy cannot be
inferred merely from a group of irrelevant facts artfully arranged so as
to give an appearance of coherence.
14. She submits that many of the co-accused persons have been
granted bail, not only by the learned Trial Court but also by this Court
and the Supreme Court. The charges against these co-accused persons
were almost similar and, therefore, the appellant is entitled to bail on
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the ground of parity.
15. She further submits that the appellant has been suffering from
various health issues, for which again the appellant is entitled to be
released on bail.
SUBMISSIONS OF THE LEARNED SPP FOR THE
RESPONDENT:
16. On the other hand, the learned SPP appearing for the
respondent-NIA submits that charges have already been framed
against the appellant by the learned Trial Court vide order dated
30.07.2024. He submits that the appellant was a radicalised recruiter-
cum-associate for the proscribed terrorist organisations Al-Badr and
Hizbul Mujahideen (HM). The appellant, along with co-accused Umar
Ayoub Bhat (accused no. 20) and Rashid Muzafar Ganai (accused no.
22), was in contact with Pakistan-based handlers of HM, its frontal
organisation- TRF and the absconding co-accused, namely, Imtiyaz
Kundoo (accused no. 2). The appellant functioned as a handler in the
movement of arms and ammunition and in the channelising of terror
funds. He kept live grenades and supplied the same to the co-accused
persons; gave shelter to active terrorists at his shop; possessed live
AK-47 bullets and handed them over for safe custody to another
person; and received and channelized terror funds at the direction of
the absconding co-accused Imtiyaz Kundoo (accused no. 2). He
submits that considering these circumstances, the learned Trial Court
rightly rejected the bail application of the appellant, and the impugned
order warrants no interference from this Court.
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17. He submits that the subsequent facts, including the statement of
PW-2 (X-1) recorded by the learned Trial Court, should not be
considered by this Court, as not only would this involve appreciation
of evidence but also because such subsequent facts should not be
considered in an appeal.
18. Placing reliance on the judgments of the Supreme Court in
Gurwinder Singh v. State of Punjab & Anr. , (2024) 5 SCC 403 and,
NIA v. Zahoor Ahmad Shah Watali , (2019) 5 SCC 1, and on the
provisions of Section 43D (5) of the UAPA, he submits that no ground
for grant of bail has been made out by the appellant. He submits that
even considering the witness testimonies and recoveries at the instance
of the appellant, no ground for bail is made out.
19. He submits that for the co-accused Suhail Ahmad Thokar
(accused no. 25), the Supreme Court in its order dated 15.05.2024
passed in SLP (Crl.) No.83/2024, titled “ Suhail Ahmad Thokar v.
National Investigation Agency ”, directed the learned Trial Court to
examine the material witnesses for the concerned accused
expeditiously and to ensure that the protected witnesses are examined
first. He submits that, since Special Courts have started functioning
for NIA trials, the prosecution shall make all earnest efforts to ensure
that the material witnesses qua the appellant are examined without
avoidable delay. He submits that, therefore, the ground of delay in
trial no longer survives.
20. He submits that having regard to the evidence on record and
given the antecedents of the appellant, who has two other cases
registered against him at Police Station Sopore, that is, FIR
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No.20/2018 under Sections 13 and 20 of the UAPA and FIR
No.08/2018 under Sections 147, 148, 149, 336 and 307 of the Jammu
and Kashmir State Ranbir Penal Code, 1989, both relating to his
involvement in terrorist support activities and his association with
cadres of terrorist organisations, the appellant is not entitled to be
released on bail.
ANALYSIS AND FINDINGS:
21. We have considered the submissions made by the learned
counsels for the parties.
22. At the outset, we would note the allegations made in the
chargesheet against the appellant, generally as also specifically. These
are reproduced hereinbelow:
“16.1 A reliable information was received
regarding hatching of conspiracy, both
physically and in cyberspace and planning to
undertake violent terrorist acts in Jammu &
Kashmir (J&K) and other parts of India,
including New Delhi, by the cadres of various
proscribed terrorist organisations like
Lashkar-e-Taiba (LeT), Jaish-e-Mohammad
(JeM), Hizb-ul-Mujahideen (HM), Al-Badr
and similar other outfits through their
affiliates such as the Resistance Front (TRF),
People Against Fascist Forces (PAFF),
Mujahideen Gazwatul Hind (MGH) etc. It was
also learnt that the proscribed terrorist
organizations in cohorts with their handlers
and Commanders based in Pakistan and their
Over Ground Workers in India were also
indulging in radicalization of impressionable
local youth for the purpose of recruiting and
training them in handling of arms, ammunition
and explosives. During the same period in a
number of violent terrorist acts a number of
innocent civilians and security personnel were
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killed unleashing a reign of terror in the valley
of Kashmir. It was also learnt that the
members of proscribed terror organisation
LeT/JeM/HM/Al-Badr and their affiliates such
as TRF/PAFF/MGH etc. have conspired to
commit such terrorist acts, recruited local
youth to become members of terrorist
organisations and collected arms/
ammunitions and further the members of the
above said proscribed organisations have
conspired to wage war against the
Government of India by way of executing
targeted killings.
16.2 Considering the gravity of the offence,
Central Government in exercise of the powers
conferred under sub-section 5 of section 6
read with section 8 of the National
Investigation Agency Act, 2008 vide Ministry
of Home Affairs, New Delhi CTCR Division
order no. 11011/65/2021/NIA dated
10.10.2021, directed National Investigation
Agency to take up investigation of the case and
accordingly, an FIR was registered as Case
No. RC-29/2021/NIA/DLI dated 10.10.2021
under sections 120B, 121A, 122 and 123 of
IPC and sections 18,18A, 18B, 20, 38 and 39
of UA (P) Act, 1967.
16.3 After registration of the FIR in NIA,
during the course of investigation, twenty eight
(28) accused persons were arrested. The
arrested/ absconding accused persons were
found to be members of various proscribed
terrorist organizations like Hizbul Mujahideen
(HM), Lashkar- e-Toiba (LeT), Tehrik-ul-
Mujahideen (TuM), Al-Badar and their
affiliates/ frontal organisations such as The
Resistance Front (TRF), People Against
Fascist Forces (PAFF), Mujahideen Gazwatul
Hind (MGH), United Liberation Front Jammu
& Kashmir (ULFJK), Kashmir Janbaaz Force
(MJF), Intelligence Mujahideen etc. The
aforesaid accused persons were actively
working as hybrid cadres and were involved in
radicalizing, recruiting, providing logistics
support and terror funding in order to enhance
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terrorist activities across the valley as well in
other part of India especially New Delhi.
xxxx
17.18 Investigation has brought on record that
A-2 on directions of A-1, directly conspired
with arrested accused persons A-3, A-5, A-6,
A-8, A-17, A-20, A-22, A-23 and A-24 to assist
active cadres associated with proscribed
terrorist organizations and their newly formed
frontal organizations, whereas the other
arrested accused persons A-4, A-9, A-10, A-
11, A-12, A-13, A-14, A-15, A-16, A-18, A-20,
A-21, A-25, A-26 and A-27, acting as hybrid
cadres or lone wolf operators, got associated
with online propaganda groups floated by
various Pakistan based handlers of proscribed
terrorist organizations on directions of A-1, A-
2 and other commanders of the 'United Jihad
Council'. Due care was taken by A-1 and A-2
to ensure that all the other terrorists in this
conspiracy did not know much about each
other so that even if one of these was arrested,
security agencies could not identify and locate
other conspirators involved in the larger
conspiracy.
xxxx
17.41 During the investigation it has also been
revealed that the accused Rashid Muzaffar
Ganaie (A-23) and co-accused lrfan Tariq
Antoo (A-24) were also in contact with a
number of Pakistan based handlers of frontal
organization, TRF and other handlers of
proscribed terrorist organization Hizbul
Mujahideen. On the instance of the accused
lrfan Tariq Antoo (A-24), Rashid Muzaffar
Ganaie (A-22) had kept live Grenades at his
shop, where the active terrorist cadres used to
take shelter. Later, the accused lrfan Tariq
Antoo (A-24) handed over these Grenades to
one terrorist of terror outfit, AI-Badr.
xxxx
17.43 Investigation also revealed that the
accused Umar Ayoub Bhat (A-20) was directly
connected and receiving directions from the
co-accused lmitiyaz Kundoo @ Fayaz Sopore
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(A-2). On the directions of Pakistan based
handler and accused lmitiyaz Kundoo @
Fayaz Sopore (A-2), accused lrfan Tariq
Antoo (A-24) and accused Umar Ayoub Bhat
(A-20), received and facilitated / channelized
funds to various persons associated with them
in order to strengthen the network and also
distributed funds to the families of killed /
slained militants.
xxxx
17.44 Investigation has also brought on record
that the accused lrfan Tariq Antoo (A-24) was
the recruitor cum associate of co-accused
Umar Ayoub Bhat (A-20) and Rashid Muzaffar
Ganaie (A-22) was directly in contact with
lmitiyaz Kundoo @ Fayaz Sopore (A-2). On
directions of A-2, the accused lrfan Tariq
Antoo (A-24) was in contact with several
active cadres of proscribed terrorist
organizations. Investigation has also brought
on record that the accused lrfan Tariq Antoo
(A-24) was in possession with live bullets of
AK-47 which were given to him by one HM
terrorist namely lmtiyaz, (now killed) which he
further handed over to one of his close ally for
safe custody. The said bullets were recovered
and seized during the course of investigation.
xxxx
17.96 CDR Interconnectivity amongst
accused persons A-1 to A-27/suspects
established association based on the
eveidence emerged:
During the course of investigation it has been
established that most of the times accused
persons were associated through various
medium i.e VOIP medium and calls but they
all are connected through various phone
numbers. The retrived chats/ VOIP calls/ GSM
calls/lawfull intercepted calls clearly indicates
about their associations. All the accused
persons were using secure communication
methods to avoid detection.
17.97 The evidence emerged during
investigation in the form statements, CDR
data, Chats retrived through seized mobile
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phones shows that all the accused persons are
associated with each other and enterned into
conspiracy both physically as well as in cyber
space in order to undertake targeted attacks in
the valley for furtherance of operation of
proscribed terrorist outifts operating under the
names of various frontal organziations like
TRF, ULF J&K, Kashmir Fight, Kashmir
janbaaz Force (KJF) etc.
xxxx
17.120 Role and activities of/ offences
established against lrfan Tariq Antoo (A-24)
Accused lrfan Tariq Antoo (A-24) knowingly
entered and become part of the conspiracy
with active terrorist commanders in the
Kashmir Valley along with other co-accused
persons to strengthen and facilitating the
network of various terrorist organisation. The
accused lrfan Tariq Antoo (A-24) was actively
working as an OGW for the terrorist
organisation. The accused lrfan Tariq Antoo
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(A-24) was also involved in
harbouring/transporting, raising and
channelizing the terror funds to the active
terrorist of banned terrorist outfits. Therefore,
as per the averments made hereinabove/ in the
pre-paragraphs, it is established that the
accused lrfan Tariq Antoo (A-24) criminally
conspired with co-accused persons and others
and in pursuance of the larger conspiracy and
indulged himself in the criminal conspiracy.
xxxx
18. CHARGE:
18.1 In the instant case, there is sufficient
evidence in the form of oral and documentary
evidence including digital evidence that
establishes beyond any reasonable doubt that
the accused persons had entered into
criminal conspiracy with the co accused
persons and known & unknown persons and
also raised funds by illegal means to extend
support to the banned organization LeT, HM
and others. The conspiracy got unearthed by
way of the arrest of accused persons in the
instant case and discovery of the various fact
& material. The evidence on record led to the
arrest of accused A-1 to A-27 (except A-7)
and A-20 (Chargesheet is being filed in JJB
Board, Kingsway Camp New Delhi) being
part of the conspiracy and extending support
to the banned terrorist organisation by way
of spreading propaganda, assisting active
cadres of proscribed terror outfit in J&K and
other parts of India especially in New Delhi.
18.2 Hence, the accused persons are liable for
prosecution under the following sections of
Law:-
S.No. Accused Name Sections of Law
xxxx xxxxx xxxxx
22. Irfan Tariq Antoo
(A-24)S/o Tariq
Ahmad Antoo R/o
Kralteng, Sopore,
Baramulla, J&K
Under Sections 120B &
121A of IPC and
Sections 18, 20, 38 & 39
of UP(P) Act and Section
25(1A) of Arms Act
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23. Section 43D (5) of the UAPA contains a special
prohibition/restriction on the grant of bail to an accused. It provides
that an accused shall not be released on bail if the Court is of the
opinion that there are reasonable grounds for believing that the
allegations against him are prima facie true. The said provision reads
as under:
“ 43D. Modified application of certain
provisions of the Code.-
xxxx
(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.”
24. In the present case, after the passing of the impugned order,
charges under Sections 120B and 121A of the IPC and Section 18 of
the UAPA already stand framed against the appellant by the order
dated 30.07.2024 passed by the learned Trial Court. The statement of
one of the important witnesses, that is, PW-2 (X-1) also stands
recorded on 16.12.2024 before the learned Trial Court.
25. In Shoma Kanti Sen (supra), the Supreme Court held that the
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Appellate Court can also consider the material that comes into
existence post the order passed by the learned Trial Court. We quote
from the said judgment of the Supreme Court as under:
“14. The factual position which forms the
background of the present appellant's plea for
bail is, however, different from that in which
the aforesaid judgments were delivered. The
appellant before us, at each stage, had applied
for bail before the Court which, at that point of
time, had regular jurisdiction to consider her
application. It was because of supervening
circumstances NIA entered into the picture
and then issued the second supplementary
charge-sheet. The Division Bench, being an
appellate forum, has the jurisdiction to look
into the facts which may arise subsequent to
the order of bail passed by the court of regular
jurisdiction. The order by which the Single
Judge, hearing the bail application under
Section 439 of the 1973 Code, placed the
matter before the Division Bench [in essence,
giving the said application the form or
character of an appeal under Section 21(2) of
the 2008 Act], had not been assailed by any of
the parties. We also do not find any error in
such a direction having been issued by the
Single Judge of the High Court exercising
jurisdiction under Section 439 of the 1973
Code. It was the same investigation which was
continued by NIA, based on the same FIR.
Only the investigating agency had changed.
Just because the second supplementary
charge-sheet had been issued by the NIA
after disposal of the bail application by the
Sessions Court, it was not the only legal
course available to the High Court to remand
the matter to the Special Court for examining
the second supplementary charge-sheet at the
first instance. As an Appellate Forum, in the
facts of the given case, it was well within the
jurisdiction of the High Court exercising its
power under Section 21(2) of the 2008 Act, to
examine the second supplementary charge-
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sheet as well, while sitting in appeal over the
order of rejection of bail by the regular
Sessions Court upon considering the first two
charge-sheets.
15. Now, the question arises as to whether the
course adopted by the High Court ought to be
invalidated by us simply because another
course, which is suggested by the appellant,
could also be adopted by the High Court. In
our view, under ordinary circumstances, we
might not have had interfered with the High
Court's judgment and order which is under
appeal before us. The course adopted by the
High Court was a permissible course. We,
however, must take into account that the High
Court had passed the aforesaid order when the
appellant, a lady, was in detention for over
four-and-a-half years. At present, the
appellant has been in detention for almost six
years, her age is over 66 years and charges
have not yet been framed. The appellant has
also moved an application before us,
registered as CRL MP No. 166531 of 2023, in
which various ailments from which she suffers
have been cited and prayer is made for bail on
medical grounds as well.
16. Having taken these factors into account,
we do not think it would be in the interest of
justice to remand the matter to the Special
Court constituted under the 2008 Act at this
stage. We are taking this view as in our
opinion, it would not have been beyond
jurisdiction of the High Court Division
Bench, even in exercise of appellate power
under Section 21(2) of the 2008 Act, to
examine the second supplementary charge-
sheet as well. For these reasons, we decline to
accept the preliminary objection raised by Mr
Nataraj and shall proceed to consider here,
the appellant's plea for bail on merit. Now that
we have given leave to the appellant in her
petition for special leave to appeal, the same
appellate jurisdiction which vested in the High
Court will vest in us as well and in exercise of
such appellate jurisdiction, we shall consider
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the appellant's prayer for bail, which was not
considered by the High Court on merit.
xxxx
18. Mr Nataraj had also contended that the
NIA must be permitted to contest the bail plea
of the appellant before the first court of bail
on the basis of materials disclosed in the
second supplementary charge-sheet, because
the prosecution would also be entitled to a
right of appeal. His submission is that such
right of appeal would stand lost if the High
Court itself had examined the second
supplementary charge-sheet and decided the
question of bail in favour of the appellant-
accused. These are cogent arguments , but we
must not lose sight of the fact that we are
concerned here with the question of liberty of
a pre-trial detenue, who is a senior citizen, in
custody for almost six years, against whom
charges are yet to be framed. The question of
losing right of an appellate forum would have
greater significance in substantive
proceedings but on the question of bail, in a
proceeding where the detenue herself has
volunteered to forego an appellate forum by
arguing before us her case for bail, the
approach of this Court would be to address the
question on merit, rather than to send it back
to the Court of first instance for examining the
materials available against the appellant.”
(Emphasis supplied)
26. We are also aware that in our own judgment in Mohd Shahzad
Kamal v. National Investigation Agency, 2026:DHC:8585-DB, we
considered the subsequent testimony of a witness recorded before the
learned Trial Court and granted bail to the accused therein, namely,
Mohd Shahzad Kamal. However, in the present case, we are of the
opinion that the effect of the order framing charge against the
appellant, as also of the testimony of PW-2 (X-1), should first be
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considered by the learned Trial Court. We reach this conclusion
because PW-2 (X-1) has deposed about the supply of a bag containing
grenades. He states that this bag containing grenades was given to him
by the appellant herein. He also states that he knows the appellant
well. In this regard, in fact, a suggestion was put to him that he knows
the appellant as they met for the first time in the year 2018 at Police
Station Sopore in connection with a stone-pelting case.
27. As observed by us hereinabove, the effect of the testimony of
PW-2 (X-1) and how much reliance can be placed on the same by the
learned Trial Court, are matters to be considered by the learned Trial
Court. The learned Trial Court also has the benefit of the other
evidence that has already come on record, albeit against other co-
accused persons.
28. The primary plank on which the appellant seeks bail is the delay
in the proceedings of the trial. The learned counsel for the appellant
has emphasised that though the appellant has been in custody since
16.12.2021, out of 356 witnesses cited only 21 witnesses have been
examined so far by the learned Trial Court.
29. The impugned order had been passed by the learned Trial Court
on 07.08.2023, by which time, the period the appellant had undergone
in custody was less than two years. However, much water has flown
since then. While the statements of 21 witnesses stand recorded by the
learned Trial Court, including that of PW-2 (X-1), the fact remains
that a large number of witnesses are yet to depose before the learned
Trial Court. As guided by K.A. Najeeb (supra), while we do find merit
in the submission of the learned counsel for the appellant that there is
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a considerable delay in conclusion of the trial and that the long period
of incarceration of the appellant during trial may violate his
Fundamental Rights guaranteed under Article 21 of the Constitution
of India, at the same time, the reasons for such delay and whether for
such delay alone, the appellant should, at this stage, be released on
bail or whether the other material witness against the appellant can be
examined expeditiously by the learned Trial Court, are matters to be
considered by the learned Trial Court at the first instance. This is
particularly so in view of the testimonies of witnesses yet to be
recorded, including another protected witness, that is, X-12, who is
claimed to have kept live cartridges of an AK-47 Rifle with her on the
calling of the appellant, PW-244 (Arif Qayoom Khuroo), who is
alleged to have given SIM cards to the appellant and even delivered
money on his asking, and PW-265 (Sheikh Irfan) and PW-266 (Yasir
Ahmed Sheikh), who are stated to have given the appellant the vehicle
belonging to PW-265 (Sheikh Irfan), which is alleged to have been
used in a terrorist activity. The learned Trial Court shall have to
consider if the statement of these witnesses can be recorded
expeditiously and whether there is any chance of the appellant
influencing them in case he is released on bail.
30. In this regard, we are alive and cognizant of the fact that on
account of delay in the trial, we have granted bail to some other co-
accused, however, the case of each accused has to be considered on its
own merits, including the issue whether such accused can influence
the trial in case he/she is released on bail.
31. The appellant also seeks to urge his ill-health as a ground to be
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enlarged on bail. However, this was not a ground contended before the
learned Trial Court.
32. For the aforesaid reasons, we dispose of the present appeal,
granting liberty to the appellant to again approach the learned Trial
Court with an application seeking bail. If such an application is filed
by the appellant, the same shall be considered by the learned Trial
Court without being influenced by any observations made by it in the
impugned order or by us in the present judgment. The learned Trial
Court shall consider the subsequent developments in the trial and the
effect thereof on the continued incarceration of the appellant pending
trial.
33. For the sake of clarity, we reiterate that we have not considered
the case of the prosecution and the testimonies which the cited
witnesses have given or may eventually give in the trial. These shall
be considered by the learned Trial Court if an application for seeking
bail is filed by the appellant before it. Any such application, if filed,
must be decided by the learned Trial Court expeditiously.
34. There shall be no order as to costs.
NAVIN CHAWLA, J
ARUN BHARDWAJ, J
OCTOBER 30, 2026/ ns / Yg
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