TMI Blog2019 (4) TMI 2023X X X X Extracts X X X X X X X X Extracts X X X X ..... ses Under Section 161 are not admissible. Further, the documents pressed into service by the Investigating Agency were not admissible in evidence. 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 of Code of Criminal Procedure), 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. The High Court ought to have taken into account the totality of the materials/evidences which depicted the involvement of the Respondent in the commission of the stated offences and being a member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 121A of the Indian Penal Code ( IPC ) and Sections 13, 16, 17, 18, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967, (for short the 1967 Act ). The Respondent (Accused No. 10) filed an application for bail before the District and Sessions Judge, Special Court (NIA), New Delhi, which came to be rejected on 8th June, 2018. That order has been reversed by the High Court of Delhi at New Delhi in Criminal Appeal No. 768/2018 vide order dated 13th September, 2018. The High Court directed release of the Respondent on bail subject to certain conditions. That decision is the subject matter of this appeal filed by the prosecuting agency-the Appellant herein. 3. The Designated Court opined that there are serious allegations against the Respondent Zahoor Ahmad Shah Watali (Accused No. 10) of being involved in unlawful acts and terror funding in conspiracy with other Accused persons; he had acted as a conduit for transfer of funds received from terrorist Accused No. 1 Hafiz Muhammad Saeed, ISI, Pakistan High Commission, New Delhi and also from a source in Dubai, to Hurriyat leaders/secessionists/terrorists; and had helped them in waging war against the Government of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the Accused received money from abroad/A-1, chief of proscribed (terrorist) organization, HCP (High Commission, Pakistan) and Ors. and was passing on the said funds to Hurriyat leaders, is prima facie borne out from D-152 read with statement of PW29 and D-154 (Expert's Report), as per which the signatures of the Accused on D-152 were compared with his admitted handwriting and were verified and found to be similar. In view of the same, the Ld. Defence counsel's argument that the said document/D-152 cannot be looked into at all even to form prima facie opinion, cannot be accepted. Thus, the judgment of Hon'ble Supreme court in Manohar Lal Sharma's Case (Supra), relied upon Ld. Defence counsel is also of no assistance to the accused. 7.9 Further, the association/proximity of Altaf Ahmad Shah @ Fantoosh (A-4), Farooq Ahmad Dar @ Bitta Karate (A-6) with accused, is also prima facie borne out from the statement of protected witness PW48. Accused's links with people who have role in governance of Pakistan and with Hurriyat leaders has also prima facie come on record vide statement of PW52, documents D-3, D-4 (e) etc. and other material on record. 7.10 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even speciality/superspeciality OPDs but was not found to be suffering from any specific ailment except for his known history of Type 2 diabetes mellitus, hypertension hypothyroidism for which requisite medications to be taken regularly, were already prescribed. The Colonoscopy test of the Accused was scheduled for 15.01.2018. Medical status report of Accused Zahoor Ahmad Shah Watali received from the Medical Officer Incharge, Central Jail Dispensary, Tihar, New Delhi, mentioned that the Accused despite being counseled several times to continue his treatment at AIIMS Hospital, refused to visit AIIMS for treatment/further management. 9.0 From the above, it is evident that the Applicant/Accused is being provided necessary medical attention/treatment as and when prayed for, not only inside the jail but also at AIIMS and other Govt. Hospitals. Thus, taking into account the law as laid down in Redual Hussain Khan's case (Supra), no ground for grant of interim bail on health grounds is made out. 9.1 However, Jail Superintendent is directed to provide proper medical care and treatment to the Applicant/Accused, as requested/called for. 5. The Respondent carried the matter be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Limited ('TFCPL'). It is stated that all these foreign remittances are from unknown sources . (v) On 7th November, 2014, one Nawal Kishore Kapoor (who initially was a witness but has, since the filing of the charge-sheet, been arrayed as an Accused himself), a resident of United Arab Emirates ('UAE') entered into an agreement with TFCPL, whose Managing Director ('MD') is the Appellant to take land measuring 20 kanals in Budgam in J K on lease in consideration of a sum of ₹ 6 crores as premium and ₹ 1,000/- annual rent for an initial period of 40 years which could be extended through mutual agreement. In the said agreement, TFCPL was declared as the absolute owner of the land. Mr. Kapoor remitted a total sum of ₹ 5.579 crores in 22 instalments between 2013 and 2016 to the Appellant. (vi) During investigation it was revealed that no land exists in the name of TFCPL as per the balance sheet of that company. Further, it was ascertained that ₹ 5,57,90,000 was mobilized by Mr. Kapoor from unknown sources and remitted to Appellant to lease a piece of land which does not even exist in the name of TFCPL and therefore the agreement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses were registered against him, which were being investigated by the sister investigating agencies. The High Court, however, noted that the charge-sheet neither gave details of the other cases registered and being investigated against the Respondent nor revealed the details thereof to the Court. The High Court also noted accusations against the Respondent (Accused No. 10) in paragraphs 18.10, 18.13 and 18.14, revealing the linkage between A-3 to A-10 and indicating clear meeting of minds of the said Accused in hatching the conspiracy in support of A-1 and A-2 and other Hurriyat leaders and other terrorist organizations in J K. 7. After noting the relevant facts emanating from the charge-sheet filed against the Respondent, the High Court adverted to the conclusions recorded by the Trial Court. It then proceeded to analyse the relevant provisions of the 1967 Act and the principle underlying the decisions of this Court concerning the Terrorist and Disruptive Activities (Prevention) Act, 1985 ( TADA ) and the Maharashtra Control of Organised Crime Act, 1999 ( MCOCA ), in light of the exposition in Hitendra Vishnu Thakur (supra) and Niranjan Singh Karam Singh Punjabi (supra), and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the police report and other documents relied upon by the prosecution in the charge-sheet, without delay and free of cost. It then proceeded to analyse the interplay between Sections 207, 161, 164 and 173 of Code of Criminal Procedure and opined that even in respect of statements recorded Under Section 161 of Code of Criminal Procedure, there was no wholesale exclusion of the entire document from being provided to the accused. What was permitted was the redaction of such portion of the document which could reveal the identity and address of the maker of the statement. Be it noted that the High Court did not think it necessary to direct the Designated Court to first decide the application filed by the Investigating Agency Under Section 44 of the 1967 Act before proceeding with the hearing of the appeal filed by the Respondent. Instead, the High Court preferred to exclude those statements kept in a sealed cover from consideration. The High Court did not advert to Section 48 of the 1967 Act, which makes it amply clear that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the said Act etc. The High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es is whether there is anything to show with reference to each of the dates mentioned in the above Document No. 132 (a) that the figures shown against the entry on each date (purporting to be specific amounts of money) was in fact received by the Appellant in his personal accounts or in the accounts of any of his entities. Although the case of the NIA is that the money has been received, there is no document or statement, which forms part of the charge sheet, which in fact indicates this. 64. The above document is also relied upon by the NIA as providing proof of the linkages of the Appellant to A-1, through the entry dated 3rd May, 2015 and with the Pakistan High Commission (PHC) through the entries dated 15th and 20th October, 2016. Yet none from the PHC has been named, much less statement of such a person been recorded to confirm that those figures represented money that was received from the PHC. 65. The case of the NIA in the charge sheet is that the same document is also proof of the fact that the monies so received were passed on to the Hurriyat leaders. Reference is made to the fourth column of the above document where the names of some of the Hurriyat leaders are men ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Mr. Mustaq Ahmad Mir (Ex. D-214), the CFSL report dated 6th November, 2017 (document D-154); the seizure memo dated 3rd June, 2017 (document D-3) regarding the recovery being made from the residence of the Appellant; the seizure memo of the same date of the recoveries from the office of the TFCPL (document D-4); and the bunch of papers seized from the Appellant [D-4(e)] referred to by the trial Court. 70. Beginning with the last referred document, [D-4(e)], it is actually a bunch of documents, the first of which is a letter dated 28th June, 2016, written by the Prime Minister of Pakistan Mr. Mohammad Nawaz Sharif to the Appellant thanking him for the bouquet sent to him with wishes for his good health and well being. 71. Then there is a letter dated 20th November, 2007 from the President of the Azad Jammu and Kashmir, Chambers of Commerce and Industry, addressed to the Appellant, appointing the Appellant as an Honorary Trade Consultant at Srinagar. It notes that Pakistan and India had initiated/undertaken a number of Kashmir related CBMs (confidence building measures) in the recent past to provide respite to the Kashmiris on both sides of the LoC (Line of Control): 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission or others and was passing on the said funds to the Hurriyat leaders for funding terrorist activities and stone-pelting. The High Court also adverted to the statement of the 'protected witness' W-48 about the proximity of the Respondent (Accused No. 10) with A-4 and A-6 and opined that the same could not be construed as material that would enable the prosecution to show that accusation against the Respondent about his funding terrorist activities was prima facie true. Lastly, the High Court dealt with transaction of lease involving Naval Kishore Kapoor and noted thus: 77. Turing to the transaction of lease involving Mr. Naval Kishore Kapoor, it is explained on behalf of the Appellant that only individuals domiciled in Kashmir can hold properties there. There was no declaration of 'ownership' of lands by the companies and in any event it was a lease. The lease itself has not been shown to be a sham transaction. As regards the NRE account, it is pointed out that it has since been closed and the fine amount was also paid. As regards the CDRs, it is pointed out that there may have been exchange of calls between the Appellant and A-6 but not between the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the bail bonds. He will not travel out of the country without prior permission of the trial Court. (iv) If there is any breach of the above conditions, it will be open to the NIA to apply to the trial Court for cancellation of bail. 83. It is clarified that the observations of this Court in this order both on facts and law are based on the materials forming part of the charge sheet and are prima facie in nature and for the limited purpose of considering the case of the Appellant for grant of bail. They are not intended to influence the decisions of the trial Court at any stage of the case hereafter. 84. The appeal is allowed in the above terms. 13. The view so taken by the High Court has been assailed by the Investigating Agency - the Appellant herein, on diverse counts. According to the Appellant, the High Court has virtually conducted a mini trial and even questioned the genuineness of the documents relied upon by the Investigating Agency. In that, the High Court adopted a curious approach in finding fault with the Investigating Agency for not naming any official from the High Commission of Pakistan as Accused or recording their statements as witnesses, for inexplic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the Respondent in the commission of the alleged offences and that the documents and evidence relied upon by the Investigating Agency were not enough to sustain the accusations, much less as being prima facie true. It is submitted that the accusations made against the Respondent in the charge-sheet do not fall under Chapters IV and VI of the 1967 Act. Further, the pivotal document D-132(a) was not sufficient to fasten any criminal liability upon the Respondent. As a matter of fact, the said document is a loose sheet of paper and cannot be looked at in view of the mandate of Section 34 of the Evidence Act. To buttress this submission, reliance has been placed on Central Bureau of Investigation v. V.C. Shukla and Ors. (1998) 3 SCC 410. In any case, the said document itself cannot and does not prima facie suggest that the funds, as shown, were received and disbursed in the manner described in the document. Further, there is no independent corroboration forthcoming much less to establish the complicity of the Respondent in attracting the imperatives of Section 17 of 1967 Act. It is submitted that even if the contents of the said document were taken as it is, with the exception of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l provisions contained in Section 43D of the 1967 Act, inserted by Act 35 of 2008 w.e.f. 31st December, 2008. Sub-sections (5), (6) and (7) thereof read thus: 43D. Modified application of certain provisions of the Code.- xxx xxx xxx xxx (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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framing of charges in relation to offences under the 1967 Act. Nevertheless, we may take guidance from the exposition in the case of Ranjitsing Brahmajeetsing Sharma (supra), wherein a three-Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail. In paragraphs 36 to 38, the Court observed thus: 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 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 grantin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, while dealing with a special statute like MCOCA 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 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 (2004) 7 SCC 528 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 the case Puran v. Rambilas (2001) 6 SCC 338: (SCC p. 344, para 8) Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and ela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences have been explained by this Court in State v. Capt. Jagjit Singh (1962) 3 SCR 622 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 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. 18. 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 exa mination 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. From the analysis of the impugned judgment, it appears to us that the High Court has ventured into an area of examining the merits and deme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arduous task to satisfy the court that despite the framing of charge, the materials presented along with the charge-sheet (report Under Section 173 of Code of Criminal Procedure), 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. 19. 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. 20. The question is whether there are reasonable grounds for believing that the accusations made against the Respondent (Accused No. 10) are prima facie true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D-3g One blue colour small pocket diary seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. D-3h One blue booklet containing I.D.D. Codes and Phone numbers seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. D-3i A bunch of papers related to Pakistan Steel Mill Corporation Ltd. seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. D-3j A bunch of papers containing Court documents related to Zahoor Ahmad Shah Watali seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. D-3k A bunch of papers containing Misc. documents related to Zahoor Ahmed Shah seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. D-3l A bunch of papers containing various letter heads related to Zahoor Ahmad seized from the premises of accused Zahoor Ahmed Shah Watali (A-10) dated 03.06.2017. D-4 Production cum S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Letter heads of National Front containing pro Pak and anti-India talks in urdu seized from the house of accused Nayeem Khan (A-5) dated 03.06.2017. D-7e One letter head of Mujahideen Jammu Kashmir seized from the house of accused Nayeem Khan (A-5) dated 03.06.2017. D-7g A bunch of hand written and printed papers containing recommendation Letters written to Pakistan Embassy for Visa for students etc. seized from the house of accused Nayeem Khan (A-5) dated 03.06.2017. D-9a Hand written (Urdu) letters from LeT on the letter head titled as Lashkar-e-Taiba Jammu Kashmir Head Office Muzafarabad. seized from the house of accused Shahid-ul-Islam @ Aftab Hilali Shah (A-3) on 03.06.2017. D-9b A photograph of Aftab Hilali Shah @ Shahid-ul-Islam holding AK-47 with other cadres seized from the residence of Aftab Hilali Shah @ Shahid-Ul-Islam (A-3) on 03.06.2017. D-9c Photograph of Aftab Hilali Shah @ Shahid-ul-Islam (A-3) with Proscribed terrorist organization Hizbul Mujahideen Chief Syed Salahuddin (A- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to CIO NIA forwarding certified copies of CDR, CAF and 65B Certificate in respect of mobile Nos. 9796158864 9811813796. D-65 Letter dated 01.12.2017 from Nodal Officer, Reliance Jio Infocomm. Ltd., Delhi to CIO, NIA forwarding certified copies of CDR, CAF and 65B Certificate in respect of mobile Nos. 7006046476, 7006208314 7889521803. D-70 The transcripts of the audio-video of sting operation by the reporters of India Today related to accused Mohd. Nayeem Khan (A-5). D-71 The transcripts of the audio-video of sting operation by the reporters of India Today related to accused Farooq Ahmad Dar @ Bitta Karate (A-6). D-75 Letter No. 22/NIA-III/CIV/CR/17/10275-76 dated 23.09.2017 from Sh. Kulbir Singh AIG (CIV), J K PHQ, Srinagar to CIO NIA forwarding details of accused persons of the case. D-127 Letter No. I O/IMS/T-ACT/3/2015 NIA/10011 dated 03.08.2017 from Sh. Vishwas Kumar Singh, (W-196), ASP, I O, NIA New Delhi to CIO, NIA. D-130 Seizure memo dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledger and cash book of Trison Farms and construction Pvt. Ltd. Baba Dharam Das Complex, Khayam Srinagar for the year 2010-11 seized from the office of Trison farms and construction private Limited on 26.08.2017. D-137b One ledger and cash book of M/S. Yasir Enterprises, Baghat Barzullah, Sanat Nagar, Srinagar for the year of 2010-11 seized from the office of Trison farms and construction private Limited on 26.08.2017. D-137C One ledger and cash book of M/S. Three Y, Sanat Nagar, Srinagar for the year 2010-11 seized from the office of Trison farms and construction private Limited on 26.08.2017. D-137d One ledger and cash book of M/S. Trison International for the year 2010-11 seized from the office of Trison farms and construction private Limited on 26.08.2017. D-137f A bunch of documents related to Enforcement Directorate seized from the office of Trison farms and construction private Limited on 26.08.2017. D-154 Letter report No. CFSL-2017/D-993/3953 dated 06.11.2017 from CFSL, (CBI), Lodhi Roa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F. No. ITO/W-3(4) Antg/2017-18/3540 dated 20.10.2017/11.12.2017 from Income Tax Officer, Anantnag containing income tax return details for last six years in respect of accused Zahoor Ahmad Shah Watali (A-10). D-212 Production cum receipt memo dated 17.11.2017 related to documents produced by Naval Kishore Kapoor (W-28) along with documents. D-220 Production cum Receipt Memo dated 14.12.2017 related to production of copy of text audit reports and audit financial statements of Ms. Trison Farms and Construction Pvt. Ltd. Etc. along with received documents. D-222 Inter office Note No. I O/IMS/DE/33/2017/NIA/722 dated 17.01.2017 from Inspector S.K. Tyagi, IMS to CIO NIA forwarding 03 video clips Indentifying the voice of Hafiz Saeed along certificate 65 B of IEA. D-224 Letter No. F. No. T-3/1/FE/SRZO/2013 dated 12.12.17 from Sh. Sharad Kumar, (W-1) Assistant Director, Directorate of Enforcement, Government of India, Durani House Rajbagh, Srinagar to Sh. Ajeet Singh, SP NIA (W-229) forwarding alongwith enclosures therein proceedings aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of bail, should have directed the Designated Court to first decide the said application and if allowed, consider the redacted statements, to form its opinion as to whether there are reasonable grounds for believing that the accusation made against the Respondent is prima facie true or otherwise. For, in terms of Section 43D, it is the bounden duty of the Court to peruse the case diary and/or the report made Under Section 173 of the Code and all other relevant material/evidence produced by the Investigating Agency, for recording its opinion. We could have relegated the parties before the High Court but the counsel appearing for the Respondent, on instructions, stated that the Respondent would prefer to await the decision of the Designated Court and, depending on the outcome of the application Under Section 44 of the Act, would contest the proceedings before this Court itself. Accordingly, at the request of the Respondent, we kept the present appeal pending. Since the Designated Court has finally disposed of the application preferred by the Investigating Agency vide order dated 11th January, 2019, the correctness whereof has not been challenged by the Respondent, the redacted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigating Agency thus far (pending further investigation) shows the linkage of the Respondent (Accused No. 10) with A-3, A-4, A-5 and A-6 and, likewise, linkages between the Respondent (Accused No. 10) and A-3 to A-12, as revealed from the CDR analysis. The Chart A showing the inter-linkages of the named Accused inter se and Chart B showing the inter-linkages of the named Accused with others and the frequency of their interaction on phone during the relevant period are as under: 25. The summing up of the outcome of the investigation done until filing of the first report is noted in paragraph 17.10, which reads thus: 17.10 SUMMING UP: Hence, as has been discussed above, the investigation has established that: 1. The terrorist and Hurriyat leaders have a close nexus with the active militants, OGWs and stone-pelters in Kashmir Valley. They are closely coordinating with each other and have formed a terrorist gang to achieve their common goal of secession from the Union of India by way of an armed rebellion. 2. To fuel the secessionist activities, Pakistan is providing funds to the Hurriyat leaders and the same are channelized through Hawala, LoC trade and oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been orchestrating violence and unrest in Jammu Kashmir as a part of well-planned conspiracy under the overall patronage and financial support of Pakistani Establishment and agencies and that all the Accused persons were acting in pursuance of their common goal i.e. to achieve secession of the State of Jammu Kashmir from the Union of India by waging a war against the Government of India. 18.2 The documentary evidences seized during various searches such as letters of the banned terrorist organizations seeking financial assistance from the Hurriyat leaders, blank letterheads of terror organisations, conversations between Hafiz Saeed @ Burhan Wani, Hafiz Saeed and Asiya Andrabi, support extended by Hafiz Saeed and Syed Salahuddin to the protest calendars issued by the Hurriyat leaders, all these show that Hurriyat and terror organizations are working hand in glove. Their common objective is to attain secession of Jammu Kashmir from the Union of India and to achieve this objective, they have established a network of cadres throughout Kashmir Valley who motivate and incite the youth to attack all symbols of Indian authority, especially Indian security forces who have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaals, bandhs, strikes, processions, demonstrations during which stone pelting is organised on security forces and government establishments. These documents and digital evidences clearly indicates an action plan to instigate general public c to observe strikes, hold anti-India protests through press releases, social media and use of Imams and mosques. The recovery of protest calendars from A-4 and the direct impact of such orchestrated protests have led to enormous loss of life and property which have been explained in detail. 18.7 The investigation have revealed linkage of A-1 and A-2 with A-3 to A-12 in a web of directions being passed through e-mails, SMSs, WhatsApp, videos and other means of communication to form a clear nexus between the above Accused and the leaders of Hurriyat Conference. The recovery of a number of incriminating videos in which the separatists leaders and Accused are exhorting the general public, sympathizing with the militants, seeking support and donations to carry out militant activities and instigating general public, especially youth to raise a revolt and launch violence against security forces and wage a war against Government of India, is clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the unity, integrity and sovereignty of India by striking terror in the people or any Section of people in India by overawing by means of criminal force or show of criminal force causing death of any public functionary or attempts to cause death of any public functionary. The terrorist gang of the Accused above, have also committed terrorist act as they have disrupted the essential services and daily life of the citizenry of Jammu Kashmir and have caused damage and destruction of property in India intended to be used in connection with any other purpose of the Government of India, any State Government or any of their agencies. 18.12 The analysis of documentary evidences seized during the searches, the statement of witnesses and the incriminating material recovered from the digital media seized from the Accused clearly bring out the fact that with the active support and connivance of Pakistani establishments, Pakistani agencies, terrorist groups operating from Pakistani soil, the above Accused have hatched a criminal conspiracy to engage in violence and carry out subversive and secessionist activities in Jammu Kashmir and to achieve their objectives, have established a netwo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Penal Code, Section 13, 16, 17, 18, 20, 39 40 of Unlawful Activities (Prevention) Act, 1967. A-8 Raja Mehrajuddin Kalwal Section 120B, 121, 121A 124A of Indian Penal Code, Section 13, 16, 17, 18, 20, 39 40 of Unlawful Activities (Prevention) Act, 1967. A-9 Bashir Ahmad Bhat @ Peer Saifullah Section 120B, 121, 121A 124A of Indian Penal Code, Section 13, 16, 17, 18, 20, 39 40 of Unlawful Activities (Prevention) Act, 1967. A-10 Zahoor Ahmad Shah Watali Section 120B, 121, 121A 124A of Indian Penal Code, Section 13, 16, 17, 18, 20, 39 40 of Unlawful Activities(Prevention) Act, 1967. A-11 Kamran Yusuf Section 120B, 121 121A of Indian Penal Code, Section 13, 16, 18 20 of Unlawful Activities (Prevention) Act, 1967. A-12 Javed Ahmad Bhat Section 120B, 121 121A of Indian Penal Code, Section 13, 16, 18 20 of Unlawful (sic Unlawful Activities (Prevention) Act, 1967) 18.14 The sanction for prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n evidence would be a matter for trial. Be that as it may, besides the said document, the statement of Ghulam Mohammad Bhatt (W-29) has been recorded on 30th August, 2017 and 1st November, 2017. Whether the credibility of the said witness should be accepted cannot be put in issue at this stage. The statement does make reference to the diaries recovered from his residence showing transfer of substantial cash amounts to different parties, which he has explained by stating that cash transactions were looked after by the Respondent (Accused No. 10) himself. He had admitted the recovery of the green colour document from his residence, bearing signature of the Respondent (Accused No. 10) and mentioning about the cash amounts received and disbursed during the relevant period between 2015 and 2016. The accusation against the Respondent (Accused No. 10) is that Accused A-3 to A-10 are part of the All Parties Hurriyat Conference which calls itself a political front, whereas their agenda is to create an atmosphere conducive to the goal of cessation of J K from the Union of India. The role attributed to the Respondent (Accused No. 10) is that of being part of the larger conspiracy and to act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pakistan through the officials of Pakistan High Commission and through Accused A-10 Zahoor Watali. The signature of Accused A-10 Zahoor Watali has also been verified and as per the expert report, his signature on the questioned document matches with his specimen handwriting as well as his admitted handwriting. ii) Further, the role of Pakistan in funding secessionist activities also surfaced in the scrutiny of the un-edited version of the audio/video furnished by the office of India Today T.V. News Channel wherein Accused A-5 Nayeem Khan admits that the secessionists and terrorists of the Valley are receiving financial support from Pakistan and would have received approximately ₹ 200 crores to organise anti-India protests and agitations after the killing of Burhan Wani, the Commander of the proscribed terror organisation Hizb-ul-Mujahideen. He further speaks about funds reaching them from Saudi Arabia/Dubai through Hawala via Delhi (Ballimaran/Chandni Chowk). He admits that S.A.S. Geelani (Chairman, APHC-G), Mirwaiz Umar Farooq (APHC-M) and Yasin Malik (JKLF) are receiving funds from Pakistan. He further admits the pivotal role played by the Pakistan High Commission to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : During the course of investigation, it is established that the Hurriyat has its network of cadres at districts and local levels. There are District Presidents and block level leaders who have the responsibility to raise the funds through donation during the religious festivals and month of Ramzan. In a well-established system, the receipt books are printed and funds are collected from shopkeepers, businessmen and residents of Kashmir. The money is also collected to become a member of the Tehreek-e-Hurriyat. Selected members are made as Rukuns and are tasked to propagate the separatist ideology of Hurriyat. These Rukuns act as foot soldiers and ensure that bandhs and hartaals are successful. They also lead the processions and participate in stone pelting. Investigation also established that various District Presidents collect ₹ 5 to 10 Lac per district as Baitulmal. Funds are also collected from apple-growers and businessmen who are compelled to donate to Hurriyat central office. This money is used for administrative and operational purposes of organizing protests and strikes as well as for aid to militants and their families. The seizure of unaccounted receipts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho are closely associated with banned terrorist organizations, especially Hizb-Ul-Mujahideen. Investigation has also revealed that certain ex-militants and their family members are using proxy companies and are registered as traders. During the course of investigation, use of LoC trade route for smuggling of contraband and weapons has also come to light. A separate investigation is underway regarding the irregularities in the LoC trade. 17.6.5 Hawala: Apart from the above mentioned sources and channels, the secessionists depend heavily on the hawala network and conduits to bring money from off-shore locations to India to fuel-anti-India activities in Jammu Kashmir. i) During the course of investigation, it was ascertained that Accused A-10 Zahoor Ahmad Shah Watali is one such conduit. The seizure of the incriminating document from the house of his cashier-cum-accountant viz. Ghulam Mohd. Bhatt regarding the foreign contributions received by Zahoor Ahmad Shah Watali from Pakistani establishment and terror organizations and their further remittance to the Hurriyat leaders and secessionists of Jammu Kashmir clearly shows that he was an active channel to transmit funds fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lute owner of the piece of land in question. Mr. Naval Kishore Kapoor remitted a total amount of ₹ 5.579 crores in 22 instalments between 2013 and 2016 to the Accused Zahoor Ahmad Shah Watali. v) During the course of investigation, it was ascertained that no land exists in the name of M/s. Trison Farms and Constructions Pvt. Ltd. as per the balance sheets of the said company. (AY 2011-12 to 2016-17). It was also ascertained that the large sum of money i.e. ₹ 5,57,90,000 was mobilized by Naval Kishore Kapoor from unknown sources and remitted to the Accused Zahoor Ahmad Shah Watali over a period of 2 years to lease a piece of land which is not even existing in the name of the company mentioned as first party in the agreement and the agreement itself lacks legal sanctity. This proves that the said agreement was a 'cover' created by the Accused Zahoor Ahmad Shah Watali to bring foreign remittances from unknown sources to India. vi) During the course of investigation, it is also ascertained that the Chartered Accountant, who signed the audited balance sheets of the firms belonging to the Accused A-10 Zahoor Ahmad Shah Watali viz. M/s. Trison International (2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent D-132(a)/23. The Code 0092 pertains to Pakistan. Another contact diary was seized from the Respondent vide Memo D-3, which, at page D-3h/28 contains the same name and contact, namely, Tariq Shafi 00923008459775/0092425765022 . The documents D-3j to D-3j/5 also indicate the involvement of the Respondent in terrorist activities, including that three cases of TADA have been registered against him in the past and investigated and one case of J K PSA, 1978. The High Court erroneously proceeded on the premise that the charge-sheet makes no reference to any other criminal case against the Respondent. Additionally, the charge-sheet is accompanied with documents D-9b and D-9c, which are photographs of ex-militant Aftab Hilali Shah @ Shahid-ul-Islam (A-3) holding AK-47, seen with other terrorists. These photographs were seized from the residence of the said ex-militant on 3rd June, 2017. The prosecution case is that the Respondent (Accused No. 10) was in constant touch with the said ex-militant Aftab Hilali Shah @ Shahid-ul-Islam (A-3), as noticed from the inter-linkage chart depicted above. That fact is backed by the CDR analysis report, also part of the charge-sheet. The charge-sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Court, there are reasonable grounds for believing that the accusation against such person is prima facie true, the question of granting bail would not arise as the bar under the first part of the proviso of no bail in such cases would operate. 31. The fact that there is a high burden on the Accused in terms of the special provisions contained in Section 43D(5) to demonstrate that the prosecution has not been able to show that there exists reasonable grounds to show that the accusation against him is prima facie true, does not alter the legal position expounded in K. Veeraswami (supra), to the effect that the charge-sheet need not contain detailed analysis of the evidence. It is for the Court considering the application for bail to assess the material/evidence presented by the Investigating Agency along with the report Under Section 173 of Code of Criminal Procedure in its entirety, to form its opinion as to whether there are reasonable grounds for believing that the accusation against the named Accused is prima facie true or otherwise. 32. In the case of Hitendra Vishnu Thakur (supra), the Court was called upon to consider the following questions as noted in the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases under the Act. The Act makes every offence punishable under the Act or any Rule made thereunder to be a cognizable offence within the meaning of Section 2(c) of the Code of Criminal Procedure. The Act vests jurisdiction in the Designated Court to try all such offences under the Act by giving precedence over the trial of any other case against an Accused in any other court (not being a Designated Court) notwithstanding anything contained in the Code or any other law for the time being in force. The conferment of power on the Designated Courts to try the offences triable by them, punishable with imprisonment for a term not exceeding three years or with fine or with both, in a summary manner in accordance with the procedure prescribed in the Code of Criminal Procedure notwithstanding anything contained in Section 260(1) or 262 Code of Criminal Procedure by applying the provisions of Sections 263-265 of the Act is a marked departure. The right of appeal straight to the Supreme Court against any judgment, sentence or order not being an interlocutory order vide Section 19(1) of the Act demonstrates the seriousness with which Parliament has treated the offences under TADA. An onerou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... strictly within the four corners of the Act before recording a conviction against an Accused under TADA. Again, in paragraph 22 of the said judgment, the Court observed thus: 22. ....The two provisions operate in different and independent fields. The basis for grant of bail Under Section 20(4), as already noticed, is entirely different from the grounds on which bail may be granted Under Section 20(8) of the Act. It would be advantageous at this stage to notice the provisions of Section 20(8) and (9) of the Act. (8) Notwithstanding anything contained in the Code, no person Accused of an offence punishable under this Act or any Rule made thereunder shall, if in custody, be released on bail or on his own bond unless- (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (9) The limitations on granting of bail specified in Sub-section (8) are in addition to the limitations under the Code or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt other than the High Court or the Court of Session' within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act. and went on to add: (SCC p. 704, para 345) Reverting to Section 20(8), if either of the two conditions mentioned therein is not satisfied, the ban operates and the Accused person cannot be released on bail but of course it is subject to Section 167(2) as modified by Section 20(4) of the TADA Act in relation to a case under the provisions of TADA. Thus, the ambit and scope of Section 20(8) of TADA is no longer res integra and from the above discussion it follows that both the provisions i.e. Section 20(4) and 20(8) of TADA operate in different situations and are controlled and guided by different considerations. 33. We fail to understand as to how this decision will be of any avail to the Respondent. In our opinion, the Designated Court had rightly rejected the bail application after adverting to the relevant material/evidence indicative of the fact that there are reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te approach whilst considering the prayer for grant of bail. The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the Accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the Accused despite the materials and evidence indicating that accusations made against him are prima facie true. 36. In a decision of this Court in Chenna Boyanna Krishna Yadav (supra), to which reference has been made, the Court has re-stated the twin conditions to be considered by the Court before grant of bail in relation to MCOCA offences. We are of the view that in the present case, the Designated Court r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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