TaxTMI 
TaxTMI 
2019 (4) TMI 2023
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.... 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 India by repeated attacks on security forces and Government establishments and by damaging public property including by burning schools etc. It then noted that the accusation against the Respondent (Accused No. 10) was of being a part of a larger conspiracy to systematically upturn the establishment to cause ....
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....natures 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 view of the above facts and circumstances, the statements of witnesses/material/documents and other material placed on record by NIA, offences as alleged against the Accused are prima facie made out. Therefore, in view of the bar under proviso to Section 43D(5) UA(P) Act, the accused's prayer for bail cannot....
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.....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 before the High Court by way of Criminal Appeal No. 768 of 2018 Under Section 21(1) read with Section 21(4) of the National Investigation Agency Act, 2008. The High Court noticed that after filing of the charge-sheet, Accused Nos. 11 and 12 had been granted regular bail, while Accused Nos. 1 and 2 had not been arrested. Rest ....
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.... 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 Rs. 6 crores as premium and Rs. 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 Rs. 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 Rs. 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 itself lacks legal sanctity. According to the NIA, this "proves that the said agreement was a cover" created by the Appellant "to bring foreign remittances from unknown sources to India". (vii) The Chartered Accountant ('CA') who signed the audited balance sheet of M/s. Trison International., TFCPL and M/s. Yasir Enterprises for various years between 2013-14 a....
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....aphs 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 posed a question to itself as to whether the material gathered by the NIA in the present case could have enabled the Trial Court to come to the conclusion that there were reasonable grounds for believing that the accusation against the Respondent (Accused No. 10) was prima facie true. After so noting, it observed that the statements of the proposed/prospective witnesses recorded Under....
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....ocument 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 then went on to observe that the charge-sheet made no reference to the statements recorded Under Section 164 of the witnesses in respect of whom protection was sought by the Investigating Agency. The High Court distinguished the decision of this Court in K. Veeraswami v. Union of India and Ors. (1991) 3 SCC 655 pressed into service by the Investigating Agency to buttress its submission....
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....ere 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 mentioned. However, there is nothing to show that the money was received by the Appellant and then transmitted by him to any of the named Hurriyat leaders. Nor have any of the 'prospective witnesses' including Mr. Bhatt made any statement to that effect. 66. Mr. Luthra urged that the signature of the Appellant in the right hand bottom corner of the document has been confirmed by the ha....
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.... 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. Pakistan and India have initiated/undertaken a number of Kashmir related CBMs in recent past to provide respite to the Kashmiris on both sides of the LoC. One such CBM which is under active consideration is commencement of trade between both parts of Kashmir. Necessary modalities including the items to be traded are being worked out. 72. The other documents reflect the correspondence carried out in ....
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....gainst 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 Appellant and A-3, A-4 or A-5. This cannot at this stage be said to constitute material to show that the accusation of a criminal conspiracy between the Appellant and A-6 for commission of terrorist offences is prima facie true. It also emerged during the course of the hearing of this appeal that neither the APHC nor any of its 26 constituent organisations are 'banned' organisations within the meaning ....
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....nd 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 inexplicable reasons. In so observing, the High Court clearly overlooked the fact that the officials of the High Commission are accorded diplomatic immunity. Not only that, while considering the statements of witnesses recorded Under Section 161 of Code of Criminal Procedure, the High Court went on to observe that the same were inadmissible in evidence and discarded it from consideration for forming opinion as to whether the accusa....
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.... 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 Accused No. 4 (Altaf Ahmad Shah @ Fantoosh), no other person to whom the amount was paid or from whom the amount was received, has been arrayed as an Accused in the charge-sheet. The statements of witnesses recorded Under Section 161 or Section 164 of Code of Criminal Procedure do not mention anything about the involvement of the Respondent in commission of the stated offences. The statements of the co-accused cannot be consid....
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.... 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. 17. 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 ....
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....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 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 ....
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....e 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 elaborate documentation of the merits of the case has not to be undertaken. ... That did not mean that whilst granting bail some reasons 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 bec....
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....r 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 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 16th August, 2017 (paragraph 61 of the impugned judgment). Similarly, the approach of the High Court....
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....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. That will have to be answered keeping in mind the totality of materials including the one presented along with the police report. Be it noted that the prosecution is relying on several documents forming part of the first charge-sheet (pending further investigation) filed against the Respondent (Accused No. 10) allegedly showing his involvement in the commission of the stated offences. Reference has been made to some of the crucial documents mentioned in t....
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....med Shah Watali (A-10) dated 03.06.2017. D-4 Production cum Seizure Memo dated 03.06.2017 regarding the seizure of documents/articles from the office of accused Zahoor Ahmad Shah Watali (A-10) i.e. Trison Farms and Construction Pvt. Ltd. D-4a Copies of documents related to N.Z. International, Yasir Enterprises, Trison Farms & Construction, Trison International, Trison Power Pvt. Ltd., M/s. 3Y, Kashmir Veneer Industry along with Passport details of Zahoor Ahmad Shah Watali (A- 10) and his family members seized from the office of accused Zahoor Ahmad Shah Watali i.e. Trison Farms and Construction Pvt. Ltd. D-4b Copy of order number DMS/PSA/37/2011 dated 28.09.2011 issued by District Magistrate Srinagar regarding detention of one Tariq Ahmad Khan @ SanjMolvi seized from the office of accused Zahoor Ahmed Shah Watali (A-10) i.e. Trison Farms and Construction Pvt. Ltd. D-6c One blue Colour Diary "Evergreen Traders" seized from the premises of accused Altaf Ahmad Shah @ Fantoosh (A-4) on 03.06.17. D-6e A press Note containing anti India talks seized from the premises of accused Altaf Ahmad Shah @ Fantoosh (A-4) on 03.06.17. D-6f A program issued on 04.08.2016 under the signat....
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....d-Ul-Islam (A-3) on 03.06.2017. D-9g List of active militants (year 2016-17) of different outfits in the valley seized from the residence of Aftab Hilali Shah @ Shahid-Ul-Islam (A-3) on 03.06.2017. D-11d The photocopy of the hand written letter written by Afzal Guru to SAS Geelani seized from the premises of Mohd. Akbar Khandey @ Ayaz Akbar (A-7) on 04.06.17. D-19 Letter No. 22/NIA/CIV/CR/17/6547 dated 12.07.2017 from Sh. Kulbir Singh, AIG (CIV), PHQ, J & K Srinagar in reply NIA Letter No. RC-10/2017/NIA providing details pertaining to case RC-10/2017 to CIO NIA. D-20 Scrutiny report of Inspector Vinay Kumar related to 07 CDs received vide letter No. 22/NIA/CIV/CR/17/6547 dated 12.07.2017 from PHQ, J & K Srinagar along with photo album. D-42 Letter dated 27.06.2017 from TV Today Network Ltd. India Today Group Mediaplex, Film City, Sector 16A, Noida to CIO, NIA forwarding exact, true and correct copy of India Television's raw footage. D-43 Letter No. RC-10/2017/NIA/DLI/7831 dated 14.06.2017 to DG, BSF, Lodhi Road, New Delhi for providing details of stone-pelting, burning of schools & college buildings and damage to Govt. property as reported in Kashmir Valley since J....
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....-29). D-135 Seizure memo dated 16.08.2017 in respect of search and seizure of articles/documents found from the premises of Dr. Peerzada Kaiser Habeeb Hakeem. D-135a One transparent file folder of Trison International group of companies seized from the premises of Dr. Peerzada Kaiser Habeeb Hakeem on 16.08.2017. D-135b One orange colour file folder of account statement of M/s. Three Star Enterprises for the year of 2005-06 seized from the premises of Dr. Peerzada Kaiser Habeeb Hakeem on 16.08.2017. D-135c One Khaki colour folder of Johar Enterprises stamp paper file No. 47/P seized from the premises of Dr. Peerzada Kaiser Habeeb Hakeem on 16.08.2017. D-137 Seizure memo dated 26.08.2017 in respect of search and seizure of articles/documents found from the office of Zahoor Ahmad Shah Watali (A-10) i.e. Trison Farms and Construction Pvt. Ltd. D-137a One 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 yea....
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....8 Letter No. Gen/2017-18/46 dated 18.11.2017 from Asst. General Manager, SBI NRI Branch, Jalandhar, Punjab forwarding certified copies of account opening form and account statement of account number 20074724019 of Nawal Kishore Kapoor (W-28). D-211 Letter No. 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, Du....
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.... 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 statements of the concerned protected witnesses have been taken on record. 2....
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....e 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 other means. Sometimes, the funds are provided directly by Pakistan High Commission in India. 3. Hur....
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....rall 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 deployed there for the maintenance of law and order. To achieve their objective, they are mobilizing funds from a....
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....overnment 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 clearly established. 18.8 The secessionists, especially the leaders of the Hurriyat Conference and the Accused are a part ....
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....ing 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 network of cadres who are funded through Pakistani agencies via hawala dealers, local conduits and also by raising funds through ....
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....ode, 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 prosecution Under Section 45(1)(i)(ii) of the UA (P) Act in respect of the Accused persons for the offences Under Section 13, 16, 17, 18, 20, 38, 39 and 40 of the UA (P) Act and Under Section 196 Code of Criminal Procedure for the offences Under Section 121, 121A and 124A of Indian Penal Code has been accorded by the Ministry of Home Affairs, Government of India vide order No. 11011/26/2017/IS-IV dated 16th January, 2018. The sanction for prosecution Under Section 188 Code of Criminal Procedure has also been accorded by Government of India vide order No. 11011/26/2017/IS-IV dated 16th January, 2018 for the offences committed outside of India. 18.15 It is therefore, prayed that, the Hon'ble Court may please take cognizance of the offences Under Sections 120B, 121, 121A & 124A ....
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....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 as a fund raiser and finance conduit. Ample material has been collected to show the linkages between the Hurriyat leaders of the J & K and terrorists/terrorist organizations and their continuous activities to wage war against Government of India. Regarding the funding of terrorist activities in J & K and, in particular, the involvement of the Respondent (Accused No. 10), the charge-sheet mentions as under: 17.6 Funding of Secessionist and Terrorist Activities in Jammu & Kashmir: If publicity and propaganda is oxygen for the terror groups, terror financing is its life-blood. Terror financing provides funds for recruitment, operationalization of training and training camps, procurement of arms and ammunition, operational cost of planning and resources for terrorist acts, running....
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....ander 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 convey and receive instructions from Pakistan. Nayeem Khan also stated that the Accused Hafiz Mohd. Saeed has supported S.A.S. Geelani, Chairman, APHC-G by paying at least 10-12 crores during anti-India agitation after killing of Burhan Wani. Accused Nayeem Khan further admitted that, if funded, he can fuel unrest in the Valley any time. iii) Similarly, the scrutiny of the audio/video of the sting operation also reveals Accused A-6 Farooq Ahmad Dar Bitta Karate admitted that the funds are being sent by Pakistan to the secessionists and terrorists in the Kashmir Valley including him for organizing forcible closures, anti-India protests and processions and xplained above were used to foment the secessionist and separatist activities and unrest in the valley in an organized manner. On....
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....nessmen 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 an amount of Rs. 1,15,45,000/- from Accused A-4 Altaf Ahmad Shah Fantoosh also shows that money is being raised by way of donations. Similarly, records pertaining to the collection of funds were also seized from the house of Accused A-8 Mehrajuddin Kalwal, who was also the District President of Tehreek-e-Hurriyat for Srinagar and Ganderbal. Further, during the course of investigation, it is also established that the Hurriyat leadership appeals to the public to contribute money generously by way of donations for their so-called freedom movement. This is clearly reflected in the Website of the Hurriyat Conference viz. www.huriyatconference.com, which shows a message from S.A.S. Geelani "Help the families of martyrs and prisoners..... people should come forward for donations in the month of Ramadan as the number of people affected by this movement is large". This substantiates that Hurriyat is raising funds through donations and u....
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....eived 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 from abroad to India to fuel secessionist activities and to wage a war against the Government of India. ii) During the course of investigation, it is revealed that Accused A-10 Zahoor Ahmad Shah Watali was bringing money from off-shore locations to India by layering it through the scores of firms and companies he has opened. It was ascertained that Zahoor Ahmad Shah Watali has an NRE A/c No. 0252040200000505 in J & K Bank and he received foreign remittances to the tune of Rs. 93,87,639.31/- in this account from 2011 till 2013 from unknown sources. iii) During the course of investigation, it was also ascertained that the Accused Zahoor Ahmad Shah Watali was showing foreign remittances under 'other income' in his proprietorship firm viz. Trison International, Srinagar. From the analysis of his bank accounts, it has been ascertained that foreign remittances to the tune of Rs. 2,26,87,639.31 were received by the Accused Zahoor Ahmad Shah ....
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...., 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 (2013-14 and 2015-16), Trison Farms & Constructions Pvt. Ltd. (2013-14 and 2015-16), M/s. 3Y (2012-13, 2013-14 and 2015-16) and M/s. Yasir Enterprises (2013-14 and 2015-16) did so without seeing any supporting documents. The balance sheets of these companies were sent to him by one Mustaq Mir, Cost Accountant and Shabir Mir, Chartered Accountant from Wizkid Office, Srinagar through email and he was asked to sign on them in Delhi without showing any documents. This clearly shows that Zahoor Watali was remitting money received from unknown sources to India. vii) The investigation has also revealed that in the FY 2010-11, a firm belonging to Accused A-10 Zahoor Ahmad Shah Watali and his family members viz., Trison Farms and Constructions Pvt. Ltd. raised unsecured loan of Rs. 2,65,55,532/- from the Directors of the company, i.e. the Accused Zahoor Ahmad Shah Watali, his wife Sarwa Begum and his sons Yassir Gaffar Shah, Yawar Zahoor & Yamin Zahoor in the form of both cash and cheque and the s....
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....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-sheet also contains document D-185/10, which is a contact list of Accused Nayeem Khan (A-5) retrieved through forensic analysis, having mobile numbers of persons associated with Hurriyat party; and of one Mudasir Cheema Pak who is none other than the First Secretary of Pakistan High Commission. His name also figures in document D-132(a)/23. The Designated Court, besides adverting to the aforementioned documents, also adverted to other documents and the statements of the prospective witnesses (Ws-1, 28, 29, 38, 39, 43, 44, 48 and 52). The High Court has not appreciated the said material which found favour with the Designated Court to record its opinion that there are reasonable grounds for believing that the accusation against the Respondent is prima facie true. The view so expressed by the Designated Court commends to us. Suffice it to observe that the High Court adopted a tenuous approach-by first discarding the document D-132(a) and then discarding the statement of witnesses recorded Under Section 16....
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....med 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 opening paragraph of the judgment, viz.: In this batch of criminal appeals and special leave petitions (criminal) the three meaningful questions which require our consideration are: (1) When can the provisions of Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA) be attracted? (2) Is the 1993 Amendment, amending Section 167(2) of the Code of Criminal Procedure by modifying Section 20(4)(b) and adding a new provision as 20(4)(bb), applicable to the pending cases i.e. is it retrospective in operation? and (3) What is the true ambit and scope of Section 20(4) and Section 20(8) of TADA in the matter of grant of bail to an Accused brought before the Designated Court and the factors which the Designated Court has to keep in view while dealing with an application for grant of bail Under Section 20(4) and for grant of extension of time to the prosecution for further investigation under Clause (bb) of Section 20(4) and incidentally whether the conditi....
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....ence 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 onerous duty is therefore cast on the Designated Courts to take extra care to scrutinise the material on the record and apply their mind to the evidence and documents available with the investigating agency before charge-sheeting an Accused for an offence under TADA. The stringent provisions of the Act coupled with the enhanced punishment prescribed for the offences under the Act make the task of the Designated Court even more onerous, because the graver the offence, greater should be the care taken to see that the offence must strictly fall within the four corners of the Act before a charge is framed against an Accused person. Where the Designated Court without as much as even finding a prima facie case on the basis of the material on the record, proceeds to charge-sheet an Accused under any of the provisions of TADA, merely on the statement of the investigating agency, it acts merely as a post office of the investigating agency and does more harm to meet the challenge arising out of the 'terrorist' activiti....
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....ely 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 any other law for the time being in force on granting of bail. As would be seen from the plain phraseology of Sub-section (8) of Section 20, it commences with a non obstante Clause and in its operation imposes a ban on release of a person Accused of an offence punishable under TADA or any Rule made thereunder on bail unless the twin conditions contained in Clauses (a) and (b) thereof are satisfied. No bail can be granted Under Section 20(8) unless the Designated Court is satisfied after notice to the public prosecutor that there are reasonable grounds for believing that the Accused is not guilty of such an offence and that he is not likely to commit any offence while on bail. Sub-section (9) qualifies Sub-section (8) to the extent that the two conditions contained in Clauses (a) and (b) are in addition to the limitations prescribed under the Code of Criminal Procedure or any other law for the time being in force relating to the grant of bail. Strictly speaking Section 20(8) is not the source of power of the Designated....
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....e Designated Court had rightly rejected the bail application after adverting to the relevant material/evidence indicative of the fact that there are reasonable grounds for believing that the accusation against the Respondent is prima facie true. 34. With reference to the document D-132(a), the High Court was impressed by the argument that the same would be inadmissible. To buttress that opinion of the High Court, the Respondent would rely on the decision of this Court in V.C. Shukla (supra). Further, it was submitted that in light of Section 34 of the Evidence Act, the said document could not be admitted in evidence, since it was not an entry in the books of account regularly kept in the course of business. In any case, that document by itself would not be sufficient in the absence of any independent evidence. Learned Attorney General, relying on the underlying principle in Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors. (1995) 1 SCC 574 (para 60), would contend that there cannot be business in crime and, as such, Section 34 of the Evidence Act will have no application. He further submits that the prosecution may use the facts noted in the said document and prove ....