TaxTMI 
TaxTMI 
2026 (3) TMI 1713
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....), New Delhi District, Patiala House Courts, New Delhi (hereinafter referred to as the "Trial Court") in SC Case No. 02/2022, titled NIA v. Tariq Ahmed Dar & Ors., whereby the learned Trial Court rejected the bail application(s) filed by the appellant(s) herein. 2. The appellant(s) before this Court are Zamin Adil Bhat (Accused No. 14 before the learned Trial Court) in CRL.A. 408/2023, and Haris Nisar Langoo (Accused No. 15 before the learned Trial Court) in CRL.A. 406/2023. 3. Before this Court, certain submissions have been advanced which are common to both the appeals, particularly on the issue of prolonged incarceration and the plea founded on Article 21 of the Constitution of India. At the same time, each appeal also raises issues specific to the concerned appellant; turning on the role attributed to such appellant; the prosecution material relied upon; and, the findings recorded by the learned Trial Court. The present judgment, therefore, first notices the broad factual background of the case and the prosecution narrative as emerging from the FIR and the charge sheets filed pursuant thereto. CASE OF THE PROSECUTION: 4. The case of the prosecution is that reliable ....
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.....2022 against twenty-six accused persons, including the present appellant(s). Two accused, namely, the accused no. 1, Bashir Ahmed Pir @ Imtiyaz Alam, and the accused no. 2, Imtiyaz Kundoo @ Fayaz Sopore, were shown as absconding. 10. After the filing of the first charge sheet, further investigation continued, culminating in the filing of a supplementary charge sheet on 20.03.2023, wherein additional material was placed on record. However, no distinct or new role was attributed to the appellant(s) beyond what had already been alleged in the original charge sheet. 11. In the charge sheet, it is alleged that the investigation revealed that the larger conspiracy was masterminded by the senior leadership of various terrorist organisations operating from Pakistan. The conspiracy was allegedly conceived after the revocation of Article 370 of the Constitution of India, with the objective of re-igniting terrorist activities in Jammu & Kashmir as well as in other parts of India. In furtherance of this objective, a central coordinating body known as the "United Jihad Council" (UJC) was allegedly established in collaboration with other proscribed terrorist organisations. It is further a....
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....ciates but were active participants in both the online and offline propaganda machinery of the alleged terrorist conspiracy. SPECIFIC ALLEGATIONS AGAINST THE APPELLANT NAMELY ZAMIN ADIL BHAT (THE ACCUSED NO. 14): 17. Insofar as the appellant/accused no. 14 is concerned, the prosecution alleges that he was a highly radicalised individual who actively propagated videos, images, and audio material related to the Islamic State (IS) and Islamic State Jammu and Kashmir (ISJK) among his contacts in order to motivate and radicalize them to join Jihad for the cause of Kashmir. He used to don the badge of Islamic State. He also was in contact with several followers of ISJK and used to receive images with regard to establishment of Wilayat-Al-Hind. He along with Accused No. 15/Haris Nisar Langoo used to attend classes of one Bashir Moulvi @ Bashir Chouhan, who used to deliver radicalizing lectures. He was also a member of several online propaganda groups run by Pakistan based handlers of proscribed terrorist organisation on directions of Accused Nos. 1 and 2, that is Bashir Ahmed Pir @ Imtiyaz Alam and Imityaz Kundoo @ Fayaz Sopore respectively. 18. According to the prosecution, the ....
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....d this Court by way of the present criminal appeals under Section 21(4) of the NIA, read with Section 43-D(5) of the UAPA. 26. In the meantime, the learned Trial Court, vide Order dated 30.07.2024, framed charges against the appellant(s) under Sections 120B and 121A of the IPC and Section 18 of the UAPA, while discharging them of offence under Sections 20, 38, 39 and 40 of UAPA. SUBMISSIONS OF THE LEARNED COUNSELS FOR THE APPELLANT(S): 27. Mr. Jawahar Raja, the learned counsel appearing for the appellant, namely Mr. Zamin Adil Bhat, and Ms. Tara Narula, the learned counsel appearing for the appellant, namely Mr. Haris Nisar Langoo, at the outset, jointly submitted that the delay in the trial constitutes a ground for the grant of bail to the respective appellant(s). They submitted that the appellant(s) have been in custody since 21/22.10.2021. As per the charge sheets, the prosecution proposes to examine approximately 359 witnesses, out of whom only 12 have been examined thus far. At this pace, they contend, the recording of evidence alone is likely to take more than 38 years. The appellant(s) have already undergone custody for more than four years. They submitted that alth....
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....arious Pakistan-based handlers of proscribed terrorist organizations at the instance of accused nos. 1 and 2. It is also alleged that the appellant(s) were followers of one Bashir Moulvi @ Bashir Chouhan, who purportedly delivered radicalizing lectures that were thereafter shared by the appellant(s). However, insofar as the appellant Haris Nisar Langoo (accused no. 15) is concerned, there is no evidence to substantiate this allegation. As regards the appellant Zamin Adil Bhat (accused no. 14), the only material relied upon is the alleged sharing of such content with PW-276, who, according to the learned counsel, appears to have instigated the appellant into sending him a video of Bashir Moulvi @ Bashir Chouhan. 32. It was also submitted that the prosecution has relied upon Call Detail Records (CDRs) to show that the appellant(s) were in contact with an alleged TRF commander, namely, Mohd. Abbas Sheikh, through phone numbers used by accused No. 3, Bilal Ahmad Mir, and his wife. However, the CDRs merely reflect three calls between accused no. 14 and accused no. 3 on 23.06.2021, lasting 97 seconds, 49 seconds, and 7 seconds, respectively, between 08:25 P.M. and 08:57 P.M., and five....
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....Thakur & Ors. v. State of Maharashtra & Ors., (1994) 4 SCC 602. xvi. State NCT of Delhi v. Navjyot Sandhu, (2005) 11 SCC 600. xvii. To issue certain guidelines regarding inadequacies and deficiencies in Criminal Trials, In re, 2017 SCC OnLine SC 298. xviii. To issue certain guidelines regarding inadequacies and deficiencies in Criminal Trials, In re v. State of A.P. Ors., (2021) 10 SCC 598. xix. P. Ponnuswamy v. State of T.N., 2022 SCC OnLine SC 1543. xx. State (By NCB) Bangaluru v. Pallulabid Ahmad Arimutta & Anr., (2022) 12 SCC 633. xxi. Anter Singh v. State of Rajasthan, (2004) 10 SCC 657. 36. Ms.Tara Narula, the learned counsel appearing for the appellant/Haris Nisar Langoo, further submitted that the appellant is suffering from cervical spondylosis and that his medical condition has deteriorated during the prolonged period of incarceration, causing irreparable harm to his health. It was contended that on this ground alone, the appellant deserves to be released on bail. SUBMISSIONS OF THE LEARNED SENIOR COUNSEL/SPP ON BEHALF OF THE RESPONDENT: 37. On the other hand, Mr. Gautam Narayan, learned Senior Counsel/SPP app....
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....liance on the statements of various witnesses earlier referred to by learned counsel for the appellant(s). 40. He submitted that charges have already been framed against the appellant(s). He further submitted that, for invoking Section 18 of the UAPA, it is not necessary for the prosecution to establish the actual involvement of the appellant(s) in a specific terrorist act under Section 15; even acts such as planning, coordination, or mobilization for a terrorist act are sufficient to attract Section 18. He contended that the judgments relied upon by learned counsel for the appellant(s) are not applicable to the facts of the present case. ANALYSIS AND FINDINGS: 41. We have considered the submissions made by the learned counsels for the parties and have perused the record as well as the judgments relied upon by the learned counsels for the parties. 42. At the outset, we may deal with the common submission urged by Mr. Jawahar Raja and Ms. Tara Narula on behalf of the appellant(s) regarding the delay in trial and the long period of incarceration of the appellants. 43. At the outset, we would first note that charges have already been framed against the appellant(s) unde....
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....ause allegations arise from a common transaction or conspiracy. Fourth, the bail stage under Section 43D(5) is not a forum for evaluating defences, weighing evidence, or conducting a mini- trial; judicial restraint at this stage is not an abdication of duty but a fulfilment of the statutory mandate. These propositions, read together, define the contours of judicial power and responsibility under the provision. 81. The correct application of Section 43D(5), therefore, requires the Court to undertake a structured inquiry confined to the following: i. whether the prosecution material, accepted as it stands, discloses a prima facie case satisfying the statutory ingredients of the offence alleged; ii. whether the role attributed to the accused reflects a real and meaningful nexus to the unlawful activity or terrorist activity proscribed under the Act, as distinguished from mere association or peripheral presence; and iii. whether the statutory threshold is crossed qua the individual accused, without embarking upon an assessment reserved after full- fledged trial. 82. Where these requirements are met, the statutory restraint ....
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....les would risk transforming pre-trial detention into a punitive mechanism divorced from individual circumstances. The constitutional mandate demands a differentiated inquiry: where prolonged custody disproportionately burdens those whose roles are limited, the balance between individual liberty and collective security may call for conditional release, while the same balance may tilt differently for those alleged to have orchestrated the offence. 102. The statutory restrictions under special enactments do not preclude the Court from recognising distinctions between accused persons based on the quality of material, the nature of involvement, and the necessity of further detention. 103. At this stage, the Court must be careful not to confuse two distinct legal exercises. One is the determination of criminal liability, which belongs to trial. The other is the regulation of personal liberty pending trial, which is the limited concern of bail. The law of conspiracy explains how several persons, acting at different levels and at different points of time, may be bound together by a common design. That doctrine answers the question of liability. It does not answer, by itse....
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.... and 7 seconds respectively, while accused no. 15 made five calls to accused no. 3, lasting 35, 9, 7, 21, and 23 seconds respectively. The learned counsels for the appellants have urged that the short duration of the calls are insufficient to establish any shared criminal purpose or conspiratorial nexus. It has been urged that the appellant(s), being delivery boys by occupation, may plausibly have come in contact with accused no. 3 in connection with such deliveries, and the prosecution has not placed any material on record to conclusively rule out such an innocent explanation. The plea of the learned counsels for the appellants would again have to be tested in trial, however, for the purpose of the present appeal, cannot be completely brushed aside as being fanciful or absolutely improbable. 52. Similarly, the prosecution has relied upon cell tower location data to show the proximity of the appellant(s) to accused no. 3. However, the appellant(s) are residents of Khanyar, District Srinagar, and their presence in the said area is claimed to be natural. In any event, mere presence within the range of the same cell tower is by itself insufficient to establish a meeting for the pur....
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....UAPA and as expounded in Gulfisha Fatima (supra). 55. We must also remain mindful of the fact that though it has been submitted by the learned Senior Counsel for the respondents that, pursuant to certain orders passed by the Supreme Court in SLP (Crl.) No. 83/2024, titled Suhail Ahmad Thokar v. National Investigation Agency, the list of witnesses to be examined at trial has been curtailed and, therefore, the trial is not likely to take long, in our view, even with the curtailed number of witnesses, the trial is still likely to take a considerable amount of time to conclude. We, therefore, are of the view that taking into consideration the allegations against the appellant(s), their continued detention may amount to a violation of their right under Article 21 of the Constitution of India. The appellant(s) have already undergone prolonged incarceration of around 4 years and 4 months, without any certainty of the trial concluding within a reasonable time. In our considered opinion, and keeping in view the role assigned to the appellant(s), the continued detention of the appellant(s) at this stage would not serve the ends of justice. 56. Insofar as the health condition of appella....
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.... iii. The appellant(s) shall furnish their current residential addresses, contact numbers, and e-mail addresses to the Investigating Officer as well as to the learned Trial Court. They shall use only one mobile phone and/or one landline number during the course of trial. Details of these numbers shall be provided to the Special Public Prosecutor, and the mobile phone shall always be kept in the switched-on mode. They shall not change their place of residence or contact particulars without giving at least seven day's prior written intimation to the Investigating Officer and the learned Trial Court; iv. The appellants shall personally appear on every Monday between 10:00 A.M. and 12:00 Noon, before the Station House Officer, Local Police Station, and mark their attendance. The Station House Officer shall maintain a separate register of attendance in respect of each of these appellant(s) and shall furnish a monthly compliance report to the learned Trial Court, which shall be placed on the main record of the case; v. The appellant(s) shall not directly or indirectly contact, influence, intimidate, or attempt to contact any witness or any person connected with the pr....