TaxTMI 
TaxTMI 
2019 (4) TMI 2023
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.... 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 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 sy....
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....t 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 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 ....
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.... 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 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 charg....
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....as, 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 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) Th....
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....egistered 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 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 b....
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....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 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....
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....ng 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 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 th....
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....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. Pakistan and India have initiated/undertaken a number of Kashmir related CBMs in recent past to provide respite to the Kashmiris ....
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....tone-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 Appellant and A-3, A-4 or A-5. This cannot at this stage be said to constitute material to show that the accusation....
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.... 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 inexplicable reasons. In so observing, the High Court clearly overlooked the ....
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....t 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 Accused No. 4 (Altaf Ahmad Shah @ Fantoosh), no other person to whom t....
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....t 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, if he is not an Indian citizen and has ....
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....nces 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 granting bail may be passed.....
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....s. 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 examinatio....
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.... court in granting bail in non-bailable 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 a....
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....n, 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. 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 Responden....
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....ation 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 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. ....
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.....06.2017. D-9c Photograph of Aftab Hilali Shah @ Shahid-ul-Islam (A-3) with Proscribed terrorist organization Hizbul Mujahideen Chief Syed Salahuddin (A-2) seized from the residence of Aftab Hilali Shah @ Shahid-Ul-Islam (A-3) on 03.06.2017. D-9d 04 hand written loose papers seized from the residence of Aftab Hilali Shah @ Shahid-Ul-Islam (A-3) on 03.06.2017. D-9e One letter head in respect of All Parties Hurriyat Conference addressed to Deputy High Commissioner, High Commission of Pakistan New Delhi from Media advisor APHC, Advocate Shahidul Islam for issuing the Visa seized from the residence of Aftab Hilali Shah @ Shahid-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 pertai....
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....eized from the premises of Ghulam Mohd. Bhatt (W-29) on 16.08.2017. D-132b One small diary title Arun (11) Notes Pad seized from the premises of Ghulam Mohd. Bhatt (W-29) on 16.08.2017. D-132c One green colour diary of 2009 seized from the premises of Ghulam Mohd. Bhatt (W-29) on 16.08.2017. D-132e One brown colour diary of 2010 seized from the premises of Ghulam Mohd. Bhatt (W-29) on 16.08.2017. D-132f One dark brown colour diary mark Frankford (A division of Ultramark group) seized from the premises of Ghulam Mohd. Bhatt (W-29) on 16.08.2017. D-133 Seizure memo dated 16.08.2017 in respect of search and seizure of articles/documents found from the premises of Ghulam Mohd. Bhatt@Mohd. Akbar (W-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 premise....
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....etter No. D. III. a/2017-Ops (NIA) dated 25.07.2017 from 2 I/C (Ops/Int.), Office of Inspector General CRPF, Brein Nishat, Srinagar, J & K to CIO NIA. D-204 Original agreement documents between M/s. Trison Farms and Mr. Nawal Kishore Kapoor dated 07.11.2014. D-205 Notice Under Section 43 (F) UA(P) Act dated 30.11.2017 to Nawal Kishore Kapoor (W-28) for furnishing information/document from Insp. T.T. Bhutia, NIA, New Delhi. D-206 Reply dated 4.12.2017 of Notice Under Section 43(f) of UA(P) Act dated 30.11.2017 from Nawal Kishore Kapoor (W-28). D-207 Notice to witness Under Section Code of Criminal Procedure & 43(F) of UA (P) Act dated 07.11.2017 to CVO, SBI, Mumbai to provide bank account details of account No. 274724019 of Nawal Kishore Kapoor (W-28) from Sh Jyotiraditya, DC. D-208 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 inco....
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....mmad Bhatt (W-29) dated 30th August, 2017, and 23rd November, 2017, as well as the redacted statements of protected witnesses ("Charlie", "Romeo", "Alpha", "Gamma", "Pie", "Potter", "Harry" and "xxx") recorded Under Section 164, which have now been taken on record by the Designated Court in terms of order dated 11th January, 2019. Notably, the order passed by the Designated Court permitting redaction of those statements has not been assailed by the Respondent. In our opinion, the High Court, having noticed that the Designated Court had not looked at the stated statements presented in a sealed cover, coupled with the fact that the application Under Section 44 filed by the Investigating Agency was pending before the Designated Court, and before finally answering the prayer for 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 ma....
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....gree with the conclusion recorded by the High Court. In our opinion, taking into account the totality of the report made Under Section 173 of the Code and the accompanying documents and the evidence/material already presented to the Court, including the redacted statements of the protected witnesses recorded Under Section 164 of the Code, there are reasonable grounds to believe that the accusations made against the Respondent are prima facie true. Be it noted, further investigation is in progress. We may observe that since the prayer for bail is to be rejected, it may not be appropriate for us to dilate on matters which may eventually prejudice the Respondent (Accused No. 10) in any manner in the course of the trial. Suffice it to observe that the material produced by the Investigating 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 ....
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.... Government of India and motivate the youth of Kashmir to join militancy for the so-called freedom of Kashmir by way of an armed struggle. They misguide the common man by spreading false propaganda against the Government of India. 11. To further this conspiracy, the Hurriyat leaders, the terrorists/terror organizations and stone-pelters are working in tandem and they are getting financial and logistic support from Pakistan. 26. The accusation and charge against the accused, including the Respondent, is in paragraph 18 of the report which reads thus: 18. CHARGE: 18.1 In the instant case, there is sufficient evidence in the form of incriminating documents, statements of witnesses and digital evidence that establishes beyond any reasonable doubt that the Accused persons i.e. the Hurriyat leaders, terrorists and stone-pelters have 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 ....
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....e and carrying out subversive and secessionist activities in Jammu & Kashmir by waging a war against the Government of India. 18.5 Hence, as discussed in the foregoing paras, the evidence collected during investigation, prima facie, establishes a case against all the Accused persons for conspiring to wage war against the Government of India by way of establishing a network of cadres of banned terrorist organizations LeT & HM as well as cadres in the garb of so-called political front viz., the All Parties Hurriyat Conference. 18.6 The scrutiny of the documents and the recovery from the digital devices have provided a large data of incriminating material in which the above Accused A-3 to A-12 are a part of a gang who with the help of A-1 & A-2 and Ors. collaborate and coordinate with each other to form strategies and action plan to launch massive violent protests, hartaals, 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 re....
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....mer militants with various cases of terrorism against them and have been detained under the Public Safety Act on numerous occasions. A-10 is a known hawala dealer and financer and has a number of cases against him which are being investigated by sister investigation agencies. 18.10 The CDR Linkages and technical analysis of social media clearly establish that the Accused A-3 to A-10 are in constant communication with each other and there is a clear meeting of minds of the above Accused in hatching the conspiracy with the support of A-1 and A-2 as well as other secessionist leaders of the Hurriyat Conference and other proscribed terrorist organizations of Jammu & Kashmir. 18.11 This case is a terror conspiracy case in which the terrorist act is not a single act of terror like an incident or series of incidents. It is a terrorist act as defined under UA (P) Act-1967 wherein the intention is to threaten 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 function....
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.... A-4 Altaf Ahmad Shah @ Fantoosh Section 120B, 121, 121A & 124A of Indian Penal Code, Section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-5 Nayeem Ahmad Khan Section 120B, 121, 121A & 124A of Indian Penal Code, Section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-6 Farooq Ahmad Dar @ Bitta Karate Section 120B, 121, 121A & 124A of Indian Penal Code, Section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-7 Md. Akbar Khanday Section 120B, 121, 121A & 124A of Indian 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(Pr....
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....f Ghulam Mohammad Bhatt (W-29), the then Munshi/Accountant of the Respondent (Accused No. 10). Document D-132(a) is the green page document, seized during the search of the residence of said Ghulam Mohammad Bhatt, containing information about foreign contributions and expenditures of the Respondent (Accused No. 10) during 2015/2016. Whether this document is admissible in 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....
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....SI, from the Pakistan High Commission at New Delhi and also from a source based in Dubai. Accused A-10 was remitting the same to the Hurriyat leaders, separatists and stone-pelters of Jammu & Kashmir. The said document has been maintained in regular course of his business and is signed by Accused Zahoor Watali himself. This document clearly shows that Hurriyat leaders were receiving funds from 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 Rs. 200 crores to organise anti-India protests and agitations after the killing of Burhan Wani, th....
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....with Accused A-10 Zahoor Watali shows that Zahoor Watali received money from Accused A-1 Hafiz Saeed, Head of JuD and Chief of proscribed terror organisation Lashkar-e-Taiba and remitted it to the Hurriyat leaders espousing the cause of secession of Jammu & Kashmir from the Union of India. 17.6.3 Local Donations/Zakat/Baitulmal: 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 Rs. 5....
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....erandi leads to generation of huge cash surpluses on the Indian side which are then channelized through several formal banking channels as well as cash couriers and hawala dealers to the separatists and secessionists active in Jammu & Kashmir. Investigation has revealed that a significant number of traders engaged in cross LoC trade have relatives across the border who 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 condui....
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....or Zahoor Ahmad Shah Watali to take a piece of land measuring 20 Kanals in Sozeith Goripora Nagbal, Budgam on lease in consideration of an amount of Rs. 6 crore as premium and Rs. 1000/- annual rent for an initial period of 40 years extendable as may be mutually agreed between the parties. In the agreement, M/s. Trison Farms and Constructions Pvt. Ltd. was declared to be the absolute owner of the piece of land in question. Mr. Naval Kishore Kapoor remitted a total amount of Rs. 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. Rs. 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....
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....s seized from the premises of the Respondent (Accused No. 10) dated 3rd June, 2017, would unravel the activities of the Respondent, including regarding his financial deals. Another crucial document described as D-3g/20 is a contact diary seized from the Respondent vide Memo D-3, which contains the Pakistan National name and contact "Tariq Shafi 0092425765022... 26A" whose name figures in document 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 terroris....
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....ters IV and VI of the 1967 Act shall not be released on bail or on bond. However, the Court may release such Accused on bail only if it is of the opinion, on perusal of the case diary and/or the report made Under Section 173 of Code of Criminal Procedure that there are "no reasonable grounds" for believing that the accusation against such person is prima facie true. Conversely, if in the opinion 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 Inve....
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....wise. The Designated Courts should always consider carefully the material available on the record and apply their mind to see whether the provisions of TADA are even prima facie attracted. 14. The Act provides for the constitution of one or more Designated Courts either by the Central Government or the State Government by notification in the Official Gazette to try specified cases or class or group of 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 notw....
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....n leads evidence in the case, it is an obligation of the Designated Court to take extra care to examine the evidence with a view to find out whether the provisions of the Act apply or not. The Designated Court is, therefore, expected to carefully examine the evidence and after analysing the same come to a firm conclusion that the evidence led by the prosecution has established that the case of the Accused falls 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 b....
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.... as it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are 'in addition to the limitations under the Code or any other law for the time being in force'. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is 'a court 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....
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.... is referred to in the report Under Section 173 Code of Criminal Procedure and presented before the Designated Court, then the order granting bail by the High Court cannot be countenanced. The argument of the Respondent is that the said decision would make no difference as it is concerning an application for cancellation of bail made by the informant. However, we find force in the argument of the Appellant that the High Court, in the present case, adopted an inappropriate 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 correctne....