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.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 578 OF 2019
(Arising out of SLP(Crl.) No.7857 of 2018)
National Investigation Agency …..Appellant(s)
:Versus:
Zahoor Ahmad Shah Watali ….Respondent(s)
J U D G M E N T
A.M. K hanwilkar, J.

  1. Leave granted.
  2. The respondent is named as Accused No.10 in the First
    Information Report dated 30th May, 2017, registered by the
    Officer­in­charge of Police Station, NIA, Delhi, for offences
    punishable under Sections 120B, 121 and 121A of the Indian
    Penal Code (“IPC”) and Sections 13,16,17,18,20,38,39 and 40
    of the Unlawful Activities (Prevention) Act, 1967, (for short
    “the 1967 Act”). The respondent (Accused No.10) filed an
    application for bail before the District and Sessions Judge,
    2
    Special Court (NIA), New Delhi, which came to be rejected on
    8
    th 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
    3
    the respondent (Accused No.10) was of being a part of a larger
    conspiracy to systematically upturn the establishment to
    cause secession of J & K from the Union of India. Keeping in
    mind the special provisions in Section 43D of the 1967 Act
    and the exposition in Hitendra Vishnu Thakur and Ors. Vs.
    State of Maharashtra and Ors.,
    1 Niranjan Singh Karam
    Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijjaya and
    Ors.2
    , Manohar Lal Sharma Vs. Union of India3
    and
    Jayanta Kumar Ghosh and Ors. Vs. State of Assam and
    Anr.4
    , it proceeded to analyse the material on record and
    observed thus:
    “7.5 Let me now see whether on the basis of the material
    on record, allegations against the accused are prima facie
    made out or not. Mindful of the fact that this is not the stage
    to examine and analyze the evidence placed on record in
    detail, let me refer to the same. Allegation against the
    accused that certain businesses of his, were just a front/
    sham for routing of funds received from abroad/ terrorist A1/ High Commission, Pakistan/ Dubai/other sources and
    that there were, unaccounted financial transactions, is
    prima facie borne out from statement of the witnesses PW1,
    1
    (1994) 4 SCC 602
    2
    (1990) 4 SCC 76
    3
    (2017) 11 SCC 783
    4
    (2010) 6 Gauhati Law Reports 727
    4
    PW28 and PW29 and documents including D­202 & D­214.
    It has also come in the statements of PW38 & PW39, who
    prepared balance sheets of accused’s firms/companies
    namely Trison Farms and Constructions Pvt. Limited, M/s
    Trison International, M/s Yasir Enterprises, M/s 3Y, M/s
    Kashmir Veneer Industries & M/s Three Star, that the
    accused never produced any supporting documents with
    respect to remittances received from NZ­International DubaiFZC, owned by him; and that he did not even inform about
    the actual execution of business despite asking of PW39. The
    fact that the balance sheets of M/s Trison International, M/s
    3Y were forcefully got signed from the protected witness
    PW43 without providing him any document, has come in his
    statement. It has also come in the statement of PW44 that
    the audit report of the aforesaid companies were got signed
    from him without producing books for verification.”
    Again in paragraph 7.8 to 7.10 the Court observed:
    “7.8 The fact that the accused received money from
    abroad /A­1, chief of proscribed (terrorist) organization, HCP
    (High Commission, Pakistan) and others and was passing on
    the said funds to Hurriyat leaders, is prima facie borne out
    from D­152 read with statement of PW29 and D­154
    (Expert’s Report), as per which the signatures of the accused
    on D­152 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/
    D­152 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 (A­4), Farooq Ahmad Dar @ Bitta Karate
    5
    (A­6) 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 D­3, D­4 (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 be granted.”
    Further the Court observed:
    “8.1.1 Ld. Special PP, NIA also submitted that the
    applicant/accused is an influential person/ business man
    and has a great clout in the valley, as has come in the
    statement of PW48. All the witnesses are known to the
    applicant/ accused. There is every likelihood of the
    applicant/accused influencing/ intimidating witnesses/
    tempering with evidence, in the event of his release even on
    interim bail.”
  4. The respondent had also prayed for grant of bail on
    health grounds, which plea was duly considered and rejected
    in the following words:
    “8.2 I have duly considered the submissions made by both
    the sides. Perusal of the record reveals that as and when
    requested by the accused, he was provided medical
    treatment from time to time. Pursuant to the directions of
    this court, the accused was taken to the premier medical
    institute of India/AIIMS for necessary medical examination.
    6
    This was besides being provided appropriate medical
    attention to Jail hospital and in­patient treatment at Dr.
    RML hospital from 01.09.2017 to 05.09.2017. As per
    medical status report dated 26.09.2017, the accused was
    extensively evaluated at Dr. RML Hospital for chest pain and
    cause of cardiac disease was ruled out. Even subsequently,
    the accused was reviewed at Central Jail Hospital and
    detailed blood investigation was carried out and medication
    was provided. On his complaint of anxiety, severe low back
    pain and bleeding per­rectum on 24.09.2017, the accused
    was admitted to M.I. Room, Dispensary, Central Jail No. 8/9
    from 24.09.2017 to 26.09.2017. Vide subsequent report
    dated 11.10.2017, Medical Officer I/c, Central Jail Tihar,
    Dispensary 8/9, reported that the accused was getting
    treatement under regular follow up of Medicine Specialist,
    jail visiting SR surgery. It may further be mentioned that
    accused was constantly reviewed at short intervals and was
    provided all advised medication.
    8.3 It has also come in order sheet dated 03.01.2018 that
    as per medical report of accused received from AIIMS New
    Delhi, the accused was evaluated in seven speciality/
    superspeciality OPDs but was not found to be suffering from
    any specific ailment except for his known history of Type 2
    diabetes mellitus, hypertension & hypothyroidism for which
    requisite medications to be taken regularly, were already
    prescribed. The Colonoscopy test of the accused was
    scheduled for 15.01.2018. Medical status report of accused
    Zahoor Ahmad Shah Watali received from the Medical Officer
    Incharge, Central Jail Dispensary, Tihar, New Delhi,
    mentioned that the accused despite being counseled several
    times to continue his treatment at AIIMS Hospital, refused to
    visit AIIMS for treatment/further management.
    9.0 From the above, it is evident that the applicant/
    accused is being provided necessary medical attention/
    treatment as and when prayed for, not only inside the jail
    but also at AIIMS and other Govt. Hospitals. Thus, taking
    into account the law as laid down in Redual Hussain
    Khan’s case (Supra), no ground for grant of interim bail
    on health grounds is made out.
    9.1 However, Jail Superintendent is directed to
    provide proper medical care and treatment to the
    applicant/ accused, as requested/ called for.”
    7
  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
    charge­sheet, accused Nos.11 and 12 had been granted
    regular bail, while accused Nos.1 and 2 had not been arrested.
    Rest of the accused, including the respondent (Accused
    No.10), were in judicial custody. The respondent (Accused
    No.10) was arrested on 17th August, 2017 and had been in
    judicial custody since then. His age, as indicated in the
    charge­sheet, was about 70 years. The High Court then
    adverted to paragraph 17.6.5 onwards of the charge­sheet

[report under Section 173 of the Code of Criminal Procedure
(Cr.P.C.)]

and summarized the allegations against respondent
(Accused No.10) as follows:
“18. Specific to the Appellant are the allegations made in
Paragraph 17.6.5 of the charge­sheet which is subtitled
‘Hawala’. This being the principal allegation against the
Appellant, requires to be summarized as under:
(i) The Appellant is one of the conduits to bring money from
off­shore locations of India to fuel anti­India activities in
8
Jammu and Kashmir. Reference is again made to the same
incriminating document i.e. D No.132 (a).
(ii) A­10 was bringing money from off­shore locations to India
“by layering it through the scores of firms and companies he
has opened”. Reference is made to an NRE account of the
Appellant at the J&K Bank where, from 2011 till 2013, he is
said to have received Rs.93, 87, 639. 31 from ‘unknown
sources’.
(iii) The Appellant was showing foreign remittances under
‘other income’ in his proprietorship M/s Trison
International, Srinagar. Foreign remittances in the sum of
Rs.2,26,87,639.31 were received by the Appellant in different
accounts from 2011 to 2016. It is repeated that
Rs.93,87,639.31 was received in his NRE account from 2011
to 2013.
(iv) It is stated that Rs.14 lacs were remitted in the account
of a medical college in Jammu through NEFT on 9th April,
2013 against the fees deposited for his son (who incidentally
is a medical doctor and through whom the present appeal
has been filed). It is stated that Rs.60 lacs were remitted in
the current account of the Appellant in J&K Bank. Rs.5 lacs
were remitted in the account of M/s Trison Farms and
Constructions Pvt. Limited (‘TFCPL’). It is stated that all
these foreign remittances “are from unknown sources”.
(v) On 7th November, 2014, one Nawal Kishore Kapoor (who
initially was a witness but has, since the filing of the chargesheet, 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
9
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 2013­14 and
2015­16 “did so without seeing any supporting documents”.
According to the NIA, the balance sheets of the above
entities/companies were sent to the CA by Mustaq Mir, Cost
Accountant and Shabir Mir, CA from Wizkid Office, Srinagar
through email and he was asked to sign on them in Delhi
without showing any documents. According to the NIA, this
also clearly showed that the Appellant was remitting money
received from unknown sources to India.
(viii) TFCPL raised an unsecured loan of Rs.2,65,55,532/­
from the Directors of the company, i.e. the Appellant, his
wife, and his three sons in the Financial Year (‘FY’) 2010­11
in the form of both cash and cheque and this was used to
repay the secured loan of Rs.2,94,53,353/­ in the books of
J&K Bank. The source of money with the Directors could not
be explained satisfactorily by the Appellant.
(ix) The seizure from the house of the Appellant of a list of ISI
officials and a letter from Tariq Shafi, proprietor of Al Shafi
Group addressed to the PHC recommending grant of visa to
the Appellant “shows his proximity with Pakistani
Establishment”. It is stated that the name of Tariq Shafi
figures in the document of foreign contributions seized from
the house of the Appellant‟s cashier­cum­accountant
Ghulam Mohd. Bhatt.” The High Court also adverted to the accusations against
respondent (Accused No.10) in paragraphs 17.9 and 17.10 of
the charge­sheet, to the effect that CDRs relied upon by the
10
prosecution revealed that the accused persons were in contact
“with each other, with some militants/OGWs (Over Ground
Workers) and the hawala conduit” i.e. the respondent (Accused
No.10) and the other accused, that the respondent (Accused
No.10) was in constant contact on telephone with A­3, A­4, A5 and A­6 and that A­3 to A­12 were in contact with each
other, either directly or indirectly. In paragraph 17.10 of the
charge­sheet, it is stated that respondent (Accused No.10) was
a known hawala dealer and financer and a number of cases
were registered against him, which were being investigated by
the sister investigating agencies. The High Court, however,
noted that the charge­sheet neither gave details of the other
cases registered and being investigated against the respondent
nor revealed the details thereof to the Court. The High Court
also noted accusations against the respondent (Accused
No.10) in paragraphs 18.10, 18.13 and 18.14, revealing the
linkage between A­3 to A­10 and indicating clear meeting of
minds of the said accused in hatching the conspiracy in
11
support of A­1 and A­2 and other Hurriyat leaders and other
terrorist organizations in J & K. After noting the relevant facts emanating from the
charge­sheet 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 Section 161 Cr.P.C. did not constitute admissible
12
evidence. Those could only be used to confront the witnesses
who would subsequently appear at the trial. It noted that this
crucial aspect had to be kept in view while referring to such
statements at that stage. The High Court then noted that the
Investigating Agency had recorded the statements of the
witnesses under Section 164 of Cr.P.C. but had kept the same
in a sealed cover enclosed to the charge­sheet. The High Court
noted that the statements at serial Nos.277 and 278 were of
protected witnesses “Charlie” and “Romeo” respectively, and
those at serial Nos.279 to 284 were described as statements of
protected witnesses “Romeo”, “Alpha”, “Gamma”, “Pie”,
“Potter”, “Harry” and “xxx”. These statements were kept in a
sealed cover and not supplied to the respondent (Accused
No.10). Further, these statements were presumably not
perused by the Designated Court. Notably, the application
moved by the Investigating Agency under Section 44 of the
1967 Act to accord protection to those witnesses remained
pending before the Designated Court. Here, it may be
mentioned that during the pendency of the present appeal
13
before this Court, the said application has been decided in
favour of the Investigating Agency vide order dated 11th
January, 2019 passed by the Designated Court. We shall refer
to this a little later. Reverting to the judgment of the High Court, it opined
that the said statements under Section 164 of Cr.P.C. could
not be considered, as copies thereof had not been provided to
the respondent. It then proceeded to hold that Section 44 of
the 1967 Act merely permitted the identity and address of
such witnesses to be kept secret by the Court. It held that it
was not possible to read Section 17 of the NIA or Section 44 of
the 1967 Act as an exception to Section 207 read with Section
173 Cr.P.C., which mandates that the accused shall be
supplied copies of the police report and other documents relied
upon by the prosecution in the charge­sheet, without delay
and free of cost. It then proceeded to analyse the interplay
between Sections 207, 161, 164 and 173 of Cr.P.C. and opined
that even in respect of statements recorded under Section 161
of Cr.P.C., there was no wholesale exclusion of the entire
14
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 charge­sheet 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 Vs. Union of India and Ors.5
5
(1991) 3 SCC 655
15
pressed into service by the Investigating Agency to buttress its
submission that it is not necessary that the charge­sheet must
contain detailed analysis of the evidence, and that the Trial
Court ought to consider not only the narration in the chargesheet but also all documents accompanying thereto. The High
Court, however, opined that in the context of the relatively
high burden placed on the accused in terms of the proviso to
Section 43D(5) of the 1967 Act, of having to demonstrate that
the prosecution had not been able to show that there existed
reasonable grounds to show that the accusation against him
was prima facie true, the absence of any reference in the
charge­sheet to the statements under Section 164 Cr.P.C.,
which are of a higher probative value than the statements
under Section 161 Cr.P.C., was significant. It thus observed
that such statements could not be kept back from the
accused. Resultantly, the statements of the protected
witnesses recorded under Section 164 Cr.P.C. were kept out of
consideration by the High Court, with liberty to the parties to
16
independently make submissions before the Trial Court at the
appropriate stage. The High Court then straightaway proceeded to analyse
the efficacy of document D­132(a) forming part of the chargesheet. In light of the statement of Ghulam Mohammad Bhatt
from whom the same was recovered, it noted in paragraph 61
of the impugned judgment that it was unlikely that the
document D­132(a) was recovered from the residence of
Ghulam Mohammad Bhatt till 16th August, 2017, and
thereafter proceeded to observe thus:
“62. While the genuineness and the evidentiary value of
Document 132 (a) is yet to be established by the NIA at the
trial, since this one document is being relied upon by the
NIA as being central to its case against the Appellant, it is
but inevitable that the trial Court and now this Court has to
discuss it in some detail for the purpose of deciding whether
the Appellant can be released on bail. The question that arises is whether there is anything to
show with reference to each of the dates mentioned in the
above Document No. 132 (a) that the figures shown against
the entry on each date (purporting to be specific amounts of
money) was in fact received by the Appellant in his personal
accounts or in the accounts of any of his entities. Although
the case of the NIA is that the money has been received,
there is no document or statement, which forms part of the
charge sheet, which in fact indicates this. The above document is also relied upon by the NIA as
providing proof of the linkages of the Appellant to A­1,
through the entry dated 3rd May, 2015 and with the
17
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. 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. Mr. Luthra urged that the signature of the Appellant in
the right hand bottom corner of the document has been
confirmed by the handwriting expert to match the specimen
signature of the Appellant. In reply it was pointed out by Mr.
Vikas Pahwa, learned Senior counsel for the Appellant, that
the mere fact that the Appellant’s signature appeared on the
document did not mean that he had in fact signed the
document in acceptance of the truth of its contents.
According to him, it is too early to speculate whether the
Appellant when he signed the paper, if at all, put his
signature on a blank green legal size paper which may be
have then been used for legal purposes for an affidavit etc. It is indeed too early in the case to speculate whether the
Appellant in fact signed the document after it was typed out
and whether his signature amounts to accepting the truth of
its contents or for that matter whether the contents of the
document in question constitute conclusive proof of what the
NIA alleges the document to be. In the circumstances, the Court is not satisfied that a
sheet of paper containing typed entries and in loose form,
not shown to form part of the books of accounts regularly
maintained by the Appellant or his business entities, can
constitute material to even ‘prima facie’ connect the
Appellant with the crime with which he is sought to be
charged. The conclusion of the trial Court that this
18
document shows the connection of the Appellant with the
other accused as regards terrorist funding does not logically
or legally flow from a plain reading of the document.” The High Court then adverted to the other documents. It
analysed the concerned documents and concluded that the
entire bunch of documents did not reveal that the trading
activities undertaken by the respondent were geared towards
funding of terrorist activities, as alleged in the charge­sheet. It
may be apposite to reproduce the relevant extract from the
impugned judgment in this regard, which reads thus:
“69. Mr. Luthra then referred to the statements of Mustaq
Ahmad Mir and Shabbir Ahmad Mir, the reply of Mr Mustaq
Ahmad Mir (Ex.D­214), the CFSL report dated 6th
November, 2017 (document D­154); the seizure memo dated
3rd June, 2017 (document D­3) 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 D­4); and the bunch of papers seized from
the Appellant [D­4(e)] referred to by the trial Court. Beginning with the last referred document, [D­4(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. 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
19
(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.’ The other documents reflect the correspondence carried
out in the regular course of business between the
Appellant’s business entities and other entities including the
Al­Shafi Group of companies, headquartered at Lahore. A
business invitation was extended to the Appellant on 7th
February, 2014 by Mohd. Tariq Shafi, the director of Al­Shafi
Group of companies to visit them for business negotiations.
There is a letter of the same date addressed by Mr. Mohd.
Tariq Shafi to the PHC in New Delhi for grant of Pakistan
Business Visa to the Appellant. It must be noticed at this stage that the NIA does not
dispute that the Appellant is a leading businessman in
Kashmir. He runs a conglomerate of business entities and
has been active in the context of the Indo­Pakistan trade.
Nothing has been shown to this Court from the entire bunch
of documents which would suggest that these trade activities
were geared toward funding of terrorist activities, as alleged
in the charge­sheet.” The High Court then adverted to the statements of
Mustaq Ahmad Mir and Shabbir Ahmad Mir and noted that
the same had no evidentiary value since they were merely
statements under Section 161 Cr.P.C. and even if taken at
their face value, they would only indicate that some of the
entries in the accounts and, in particular, the source of credit
20
entries were not explained properly. Further, the accounts of
the entities of the respondent were regularly audited and it
was not possible to prima facie conclude that these unknown
sources were, in fact, connected to the other accused and that
remittances were received from Pakistan or UAE for terrorist
activities. The Court noted that there must be something more
substantial than mere audited accounts that may have entries
that require explanation to the Income Tax Authorities. As a
result, the High Court concluded that the documents relied
upon by the Investigating Agency did not persuade the Court
to prima facie conclude that the respondent received money
from A­1 or Pakistan High Commission or others and was
passing on the said funds to the Hurriyat leaders for funding
terrorist activities and stone­pelting. The High Court also
adverted to the statement of the ‘protected witness’ W­48
about the proximity of the respondent (Accused No.10) with A4 and A­6 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
21
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 A­6 but not
between the Appellant and A­3, A­4 or A­5. This cannot at
this stage be said to constitute material to show that the
accusation of a criminal conspiracy between the Appellant
and A­6 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
of the UAPA.” Having said thus, the High Court proceeded to conclude
that the order passed by the Designated Court was cryptic and
unsustainable both on facts and in law. It then went on to
observe that there was nothing on record to indicate the
previous criminal involvement of the respondent in any offence
or the possibility of the respondent fleeing from justice, if
released on bail. Further, the respondent who was a
septuagenarian and was suffering from various medical
22
ailments, was in judicial custody for more than a year and had
not tampered with the evidence or interfered with any of the
‘prospective/protected’ witnesses. The High Court then went
on to rely on the dictum in Davender Gupta Vs. National
Investigating Agency6
and Sanjay Chandra Vs. CBI 7
.
Finally, the High Court directed the release of respondent on
bail and issued directions in that regard subject to conditions
stated in the concluding part of the impugned judgment which
reads thus:
“Conclusion The impugned order dated 8th June, 2018 of the trial
Court is accordingly set aside. The Appellant is directed to be
released on bail subject to his furnishing a personal bond in
the sum of Rs.2 lakhs with two sureties of like amount to the
satisfaction of the trial Court, and further subject to the
following conditions:
(i) The Appellant shall report to the IO in charge of the
case as and when required. He shall provide to the IO as
well as the trial Court the mobile phone on which he
can be contacted and his current address where he will
be available. He will keep both the IO and the trial Court
informed promptly if there is any change in either.
(ii) He will not influence or intimidate the
proposed/prospective Crl.A.768/2018 Page 40 of 40
prosecution witnesses or tamper with the evidence of
the prosecution in any manner.
(iii) The Appellant will surrender his passport before the
trial Court at the time of execution of the bail bonds. He
will not travel out of the country without prior
permission of the trial Court.
6
(2014) SCC Online AP 192
7
AIR 2012 SC 830
23
(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. 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. The appeal is allowed in the above terms.” 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
24
Cr.P.C., 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 accusations against the
respondent (Accused No.10) were prima facie true. The Court,
however, was obliged to consider all the statements recorded
under Section 161 of Cr.P.C. in light of the exposition in
Salim Khan Vs. Sanjai Singh and Anr. 8
Similarly, the
statements recorded under Section 164, which were produced
in a sealed cover, had been completely discarded. The
approach of the High Court, to say the least, contends the
learned Attorney General, was tenuous and not permissible at
the stage of consideration of prayer for bail. The analysis done
by the High Court is bordering on being perverse as it has
virtually conducted a mini trial at the stage of consideration of
the prayer for bail. According to the appellant, the chargesheet filed against the respondent was accompanied by
documentary evidence, statements of prospective witnesses
and other evidence which indicated complicity of the
respondent and reinforced the aspect that the accusations
8
(2002) 9 SCC 670
25
made against him were prima facie true. It is submitted that at
the stage of consideration of bail, the totality of the evidence
available against the respondent must be reckoned and ought
to be taken into account as it is, without anything more. The
question of admissibility of such evidence would be a matter
for trial. The sufficiency or insufficiency of the evidence cannot
be the basis to answer the prayer for grant of bail. It is
contended that after considering the statements of protected
witnesses recorded under Section 164 of the Code, the same
reinforces the accusations made against the respondent
(Accused No.10) as being prima facie true. Accordingly, it is
submitted that the High Court order be set aside and the
application for bail preferred by the respondent (Accused
No.10) be rejected. Learned counsel for the respondent, on the other hand,
submits that the High Court justly came to hold that no
evidence was forthcoming to indicate the complicity of the
respondent in the commission of the alleged offences and that
the documents and evidence relied upon by the Investigating
26
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 charge­sheet
do not fall under Chapters IV and VI of the 1967 Act. Further,
the pivotal document D­132(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 Vs. V.C. Shukla and Ors.9
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 @
9
(1998) 3 SCC 410
27
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 charge­sheet. The statements of witnesses
recorded under Section 161 or Section 164 of Cr.P.C. do not
mention anything about the involvement of the respondent in
commission of the stated offences. The statements of the coaccused cannot be considered as admissions, much less used
against the respondent. Further, there was no evidence to
indicate the involvement of the respondent in the larger
conspiracy much less regarding terrorist activity. It is
submitted that the High Court was justified in analysing the
materials on record to satisfy itself as to whether the
accusations made against the respondent were prima facie
true. That enquiry was permissible in terms of the exposition
in Ranjitsing Brahmajeetsing Sharma Vs. State of
Maharashtra and Anr.10 and Chenna Boyanna Krishna
Yadav Vs. State of Maharashtra and Anr.11 According to
the respondent, no fault can be found with the High Court and
10
(2005) 5 SCC 294
11
(2007) 1 SCC 242
28
the view taken by the High Court, being a possible view, did
not require any interference in exercise of the power under
Article 136 of the Constitution of India. It is finally submitted
that this Court, if it so desires, may impose additional
conditions whilst upholding the order of bail passed by the
High Court. Before we proceed to analyse the rival submissions, it is
apposite to restate the settled legal position about matters to
be considered for deciding an application for bail, to wit,
(i) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence; (ii) nature
and gravity of the charge; (iii) severity of the punishment in the
event of conviction; (iv) danger of the accused absconding or
fleeing, if released on bail; (v) character, behaviour, means,
position and standing of the accused; (vi) likelihood of the
offence being repeated; (vii) reasonable apprehension of the
witnesses being tampered with; and (viii) danger, of course, of
29
justice being thwarted by grant of bail. (State of U.P. through
CBI Vs. Amarmani Tripathi12). When it comes to offences punishable under special
enactments, such as the 1967 Act, something more is required
to be kept in mind in view of the special provisions contained
in Section 43D of the 1967 Act, inserted by Act 35 of 2008
w.e.f. 31st December, 2008. Sub­sections (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 subsection (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 sub­sections (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.”
12
(2005) 8 SCC 21 (para 18)
30 By virtue of the proviso to sub­section (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 Court, which has had an occasion to deal
with similar special provisions in TADA and MCOCA. The
principle underlying those decisions may have some bearing
while considering the prayer for bail in relation to offences
under the 1967 Act as well. Notably, under the special
enactments such as TADA, MCOCA and the Narcotic Drugs
and Psychotropic Substances Act, 1985, the Court is required
to record its opinion that there are reasonable grounds for
believing that the accused is “not guilty” of the alleged offence.
There is degree of difference between the satisfaction to be
recorded by the Court that there are reasonable grounds for
believing that the accused is “not guilty” of such offence and
the satisfaction to be recorded for the purposes of the 1967
Act that there are reasonable grounds for believing that the
accusation against such person is “prima facie” true. By its
31
very nature, the expression “prima facie true” would mean that
the materials/evidence collated by the Investigating Agency in
reference to the accusation against the concerned accused in
the first information report, must prevail until contradicted
and overcome or disproved by other evidence, and on the face
of it, shows the complicity of such accused in the commission
of the stated offence. It must be good and sufficient on its face
to establish a given fact or the chain of facts constituting the
stated offence, unless rebutted or contradicted. In one sense,
the degree of satisfaction is lighter when the Court has to
opine that the accusation is “prima facie true”, as compared to
the opinion of accused “not guilty” of such offence as
required under the other special enactments. In any case, the
degree of satisfaction to be recorded by the Court for opining
that there are reasonable grounds for believing that the
accusation against the accused is prima facie true, is lighter
than the degree of satisfaction to be recorded for considering a
discharge application or framing of charges in relation to
offences under the 1967 Act. Nevertheless, we may take
32
guidance from the exposition in the case of Ranjitsing
Brahmajeetsing Sharma (supra), wherein a three­Judge
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? 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. 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 the time of considering the
application for grant of bail shall consider the question from
the angle as to whether he was possessed of the requisite
mens rea….”
And again in paragraphs 44 to 48, the Court observed:
33
“44. The wording of Section 21(4), in our opinion, does not
lead to the conclusion that the court must arrive at a
positive finding that the applicant for bail has not committed
an offence under the Act. If such a construction is placed,
the court intending to grant bail must arrive at a finding that
the applicant has not committed such an offence. In such an
event, it will be impossible for the prosecution to obtain a
judgment of conviction of the applicant. Such cannot be the
intention of the legislature. Section 21(4) of MCOCA,
therefore, must be construed reasonably. It must be so
construed that the court is able to maintain a delicate
balance between a judgment of acquittal and conviction and
an order granting bail much before commencement of trial.
Similarly, the court will be required to record a finding as to
the possibility of his committing a crime after grant of bail.
However, such an offence in futuro must be an offence under
the Act and not any other offence. Since it is difficult to
predict the future conduct of an accused, the court must
necessarily consider this aspect of the matter having regard
to the antecedents of the accused, his propensities and the
nature and manner in which he is alleged to have committed
the offence. It is, furthermore, trite that for the purpose of
considering an application for grant of bail, although detailed
reasons are not necessary to be assigned, the order granting
bail must demonstrate application of mind at least in serious
cases as to why the applicant has been granted or denied the
privilege of bail. The duty of the court at this stage is not to weigh the
evidence meticulously but to arrive at a finding on the basis
of broad probabilities. However, while dealing with a special
statute like MCOCA having regard to the provisions
contained in sub­section (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.
34 In Kalyan Chandra Sarkar v. Rajesh Ranjan13 this Court
observed: (SCC pp. 537­38, 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.
Rambilas14 : (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 because of the fact that the
appellate court has every right to know the basis for
granting the bail. Therefore, we are not in agreement
with the argument addressed by the learned counsel for
the accused that the High Court was not expected even
to indicate a prima facie finding on all points urged
before it while granting bail, more so in the background
of the facts of this case where on facts it is established
that a large number of witnesses who were examined
after the respondent was enlarged on bail had turned
hostile and there are complaints made to the court as to
the threats administered by the respondent or his
supporters to witnesses in the case. In such
circumstances, the Court was duty­bound to apply its
mind to the allegations put forth by the investigating
agency and ought to have given at least a prima facie
finding in regard to these allegations because they go to
the very root of the right of the accused to seek bail. The
non­consideration of these vital facts as to the
allegations of threat or inducement made to the
witnesses by the respondent during the period he was
on bail has vitiated the conclusions arrived at by the
High Court while granting bail to the respondent. The
other ground apart from the ground of incarceration
13
(2004) 7 SCC 528
14
(2001) 6 SCC 338
35
which appealed to the High Court to grant bail was the
fact that a large number of witnesses are yet to be
examined and there is no likelihood of the trial coming
to an end in the near future. As stated hereinabove, this
ground on the facts of this case is also not sufficient
either individually or coupled with the period of
incarceration to release the respondent on bail because
of the serious allegations of tampering with the
witnesses made against the respondent.’ In Jayendra Saraswathi Swamigal v. State of T.N.15 this
Court observed: (SCC pp. 21­22, para 16)
‘16. … The considerations which normally weigh with
the court in granting bail in non­bailable offences have
been explained by this Court in State v. Capt. Jagjit
Singh16 and Gurcharan Singh v. State (Delhi Admn.)17
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.’ ” A priori, the exercise to be undertaken by the Court at
this stage ­ of giving reasons for grant or non­grant of bail ­ is
markedly different from discussing merits or demerits of the
evidence. The elaborate examination 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
15
(2005) 2 SCC 13
16
(1962) 3 SCR 622
17
(1978) 1 SCC 118
36
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 in completely
discarding the statements of the protected witnesses recorded
under Section 164 of Cr.P.C., on the specious ground that the
same was kept in a sealed cover and was not even perused by
the Designated Court and also because reference to such
statements having been recorded was not found in the chargesheet already filed against the respondent is, in our opinion,
in complete disregard of the duty of the Court to record its
37
opinion that the accusation made against the concerned
accused is prima facie true or otherwise. That opinion must
be reached by the Court not only in reference to the
accusation in the FIR but also in reference to the contents of
the case diary and including the charge­sheet (report under
Section 173 of Cr.P.C.) and other material gathered by the
Investigating Agency during investigation. Be it noted that the
special provision, Section 43D of the 1967 Act, applies right
from the stage of registration of FIR for offences under
Chapters IV and VI of the 1967 Act until the conclusion of the
trial thereof. To wit, soon after the arrest of the accused on the
basis of the FIR registered against him, but before filing of the
charge­sheet by the Investigating Agency; after filing of the
first charge­sheet and before the filing of the supplementary or
final charge­sheet consequent to further investigation under
Section 173(8) Cr.P.C., until framing of the charges or after
framing of the charges by the Court and recording of evidence
of key witnesses etc. However, once charges are framed, it
would be safe to assume that a very strong suspicion was
38
founded upon the materials before the Court, which prompted
the Court to form a presumptive opinion as to the existence of
the factual ingredients constituting the offence alleged against
the accused, to justify the framing of charge. In that situation,
the accused may have to undertake an arduous task to satisfy
the court that despite the framing of charge, the materials
presented along with the charge­sheet (report under Section
173 of Cr.P.C.), 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. 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
39
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. 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 charge­sheet (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 the chart handed over to the Court by the
appellant. The same, inter alia, read thus:
NIA CASE NO.RC­10/2017/NIA/DLI
TERROR FUNDING IN JAMMU & KASHMIR
EVIDENCES FILED WITH CHARGE­SHEET
(Excluding Supplementary Charge sheet)
Against Accused Zahoor Ahmed Shah Watali (A­10)
Exhibit Details of Documents
D­1 Order no.11011/26/2017­IS.IV, dated 30.05.2017 of Sh. N.S.
40
Bisht, Under Secretary, GOI, MHA, New Delhi.
D­2 FIR No.RC­10/2017/NIA/DLI dated 30.05.2017, PS NIA New
Delhi.
D­3 Seizure memo dated 03.06.2017 in respect of search and
recovery of articles/documents seized from the premises of
accused Zahoor Ahmed Shah Watali (A­10).
D­3a Income Tax Returns of Three Star Enterprises seized from the
premises of accused Zahoor Ahmed Shah Watali (A­10) dated
03.06.2017.
D­3b Income Tax Returns of Trisons Farms and Construction Pvt.
Ltd. seized from the premises of accused Zahoor Ahmed Shah
Watali (A­10) dated 03.06.2017.
D­3c Acknowledgment ITR­4 of Yamin Zahoor Shah seized from the
premises of accused Zahoor Ahmed Shah Watali (A­10) dated
03.06.2017.
D­3d Acknowledgment ITR­4 of Yawar Zahoor Shah seized from the
premises of accused Zahoor Ahmed Shah Watali (A­10) dated
03.06.2017.
D­3e Income Tax Returns of M/s Three Y seized from the premises
of accused Zahoor Ahmed Shah Watali (A­10) dated
03.06.2017.
D­3f Income Tax Returns in respect of Yasir Enterprises seized from
the premises of accused Zahoor Ahmed Shah Watali (A­10)
dated 03.06.2017.
D­3g One blue colour small pocket diary seized from the premises of
accused Zahoor Ahmed Shah Watali (A­10) dated 03.06.2017.
D­3h One blue booklet containing I.D.D Codes and Phone numbers
seized from the premises of accused Zahoor Ahmed Shah
Watali (A­10) dated 03.06.2017.
D­3i A bunch of papers related to Pakistan Steel Mill Corp. Ltd.
seized from the premises of accused Zahoor Ahmed Shah
41
Watali (A­10) dated 03.06.2017.
D­3j A bunch of papers containing Court documents related to
Zahoor Ahmad Shah Watali seized from the premises of
accused Zahoor Ahmed Shah Watali (A­10) dated 03.06.2017.
D­3k A bunch of papers containing Misc. documents related to
Zahoor Ahmed Shah seized from the premises of accused
Zahoor Ahmed Shah Watali (A­10) dated 03.06.2017.
D­3l A bunch of papers containing various letter heads related to
Zahoor Ahmad seized from the premises of accused Zahoor
Ahmed Shah Watali (A­10) dated 03.06.2017.
D­4 Production cum Seizure Memo dated 03.06.2017 regarding the
seizure of documents/articles from the office of accused
Zahoor Ahmad Shah Watali (A­10) i.e. Trison Farms and
Construction Pvt. Ltd.
D­4a 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 (A­10) and his family members seized from the office of
accused Zahoor Ahmad Shah Watali i.e. Trison Farms and
Construction Pvt. Ltd.
D­4b 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 (A­10) i.e. Trison Farms
and Construction Pvt. Ltd.
D­6c One blue Colour Diary “Evergreen Traders” seized from the
premises of accused Altaf Ahmad Shah @ Fantoosh (A­4) on
03.06.17.
D­6e A press Note containing anti India talks seized from the
premises of accused Altaf Ahmad Shah @ Fantoosh (A­4) on
03.06.17.
42
D­6f A program issued on 04.08.2016 under the signature of Syed
Ali Shah Geelani, Chairman, All Party Hurriyat Conference
seized from the premises of accused Altaf Ahmad Shah @
Fantoosh (A­4) on 03.06.17.
D­6g One paper containing details of amount received from
chairman and others showing an amount of Rs.1,15,45,000/­
seized from the premises of accused Altaf Ahmad Shah @
Fantoosh (A­4) on 03.06.17.
D­7a Two letters dated 10.03.2006 and 17.03.2006) written by the
Area Commander of Hizbul Mujahideen (HM) to accused
Nayeem Khan (A­5) seized from the house of accused nayeem
Khan dated 03.06.2017.
D­7b Letter heads of proscribed terrorist organization Lashkar e
Toiba (LeT), Jammu & Kashmir seized from the house of
accused Nayeem Khan (A­5) dated 03.06.2017.
D­7c Letter written to Pakistan Embassy by accused Nayeem Khan
(A­5) for recommending Visa to visit Pakistan seized from the
house of accused Nayeem Khan dated 03.06.2017.
D­7d Letter heads of National Front containing pro Pak and antiIndia talks in urdu seized from the house of accused Nayeem
Khan (A­5) dated 03.06.2017.
D­7e One letter head of Mujahidin Jammu & Kashmir seized from
the house of accused Nayeem Khan (A­5) dated 03.06.2017.
D­7g A bunch of hand written and printed papers containing
recommendation Letters written to Pakistan Embassy for Visa
for students etc. seized from the house of accused Nayeem
Khan (A­5) dated 03.06.2017.
D­9a Hand written (Urdu) letters from LeT on the letter head titled
as “Lashkar­e­Tuibah Jammu Kashmir Head Office
Muzafarabad.” seized from the house of accused Shahid­ulIslam @ AftabHilali Shah (A­3) on 03.06.2017.
D­9b A photograph of Aftab Hilali Shah @ Shahid­ul­Islam holding
43
AK­47 with other cadres seized from the residence of
AftabHilali Shah @ Shahid­Ul­Islam (A­3) on 03.06.2017.
D­9c Phograph of Aftab Hilali Shah @ Shahid­ul­Islam (A­3) with
Proscribed terrorist organization Hizbul Mujahiddin Chief Syed
Salahuddin (A­2) seized from the residence of AftabHilali Shah
@ Shahid­Ul­Islam (A­3) on 03.06.2017.
D­9d 04 hand written loose papers seized from the residence of
AftabHilali Shah @ Shahid­Ul­Islam (A­3) on 03.06.2017.
D­9e 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 @ Shahid­Ul­Islam (A­3) on 03.06.2017.
D­9g List of active militants (year 2016­17) of different outfits in the
valley seized from the residence of Aftab Hilali Shah @ ShahidUl­Islam (A­3) on 03.06.2017.
D­11d The photocopy of the hand written letter written by Afzal Guru
to SAS Geelani seized from the premises of Mohd. Akbar
Khandey @ Ayaz Akbar (A­7) on 04.06.17.
D­19 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. RC­10/2017/NIA providing details pertaining to
case RC­10/2017 to CIO NIA.
D­20 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.
D­42 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.
D­43 Letter no. RC­10/2017/NIA/DLI/7831 dated 14.06.2017 to
DG, BSF, Lodhi Road, New Delhi for providing details of stonepelting, burning of schools & college buildings and damage to
44
Govt. property as reported in Kashmir Valley since July, 2016.
D­44 Letter no. 26/Kmr/Ops(B)W/BSF/17/18758 dated 2/3
August 2017 from Director General, BSF (Ops Directorate),
New Delhi to CIO, NIA details of stone­pelting, burning of
schools & college buildings and damage to Govt. property as
reported in Kashmir Valley since July, 2016.
D­63 Letter dated 28.08.2017 from Nodal Officer Vodafone, New
Delhi to CIO NIA forwarding certified copies of CDR, CAF and
65B Certificate in respect of mobile Nos. 9796158864 &
D­65 Letter dated 01.12.2017 from Nodal Officer, Reliance Jio
Infocomm. Ltd., Delhi to CIO, NIA forwarding certified copies of
CDR, CAF and 65B Certificate in respect of mobile nos.
7006046476, 7006208314 & 7889521803.
D­70 The transcripts of the audio­video of sting operation by the
reporters of India Today related to accused Mohd. Nayeem
Khan (A­5).
D­71 The transcripts of the audio­video of sting operation by the
reporters of India Today related to accused Farooq Ahmad Dar
@ Bitta Karate (A­6).
D­75 Letter No. 22/NIA­III/CIV/CR/17/10275­76 dated 23.09.2017
from Sh. Kulbir Singh AIG (CIV), J&K PHQ, Srinagar to CIO
NIA forwarding details of accused persons of the case.
D­127 Letter No. I&O/IMS/T­ACT/3/2015 NIA/10011 dated
03.08.2017 from Sh. Vishwas Kumar Singh, (W­196), ASP,
I&O, NIA New Delhi to CIO, NIA.
D­130 Seizure memo dated 16.08.2017 in respect of search and
seizure of articles/documents found from the premises of
Ghulam Mohd. Rather@Gulla (W­29).
D­132 Seizure memo dated 16.08.2017 in respect of search and
seizure of articles/documents found from the premises of
Ghulam Mohd. Bhatt (W­29).
D­132a Various miscellaneous papers related financial transactions
seized from the premises of Ghulam Mohd. Bhatt (W­29) on
45
16.08.2017.
D­132b One small diary title Arun (11) Notes Pad seized from the
premises of Ghulam Mohd. Bhatt (W­29) on 16.08.2017.
D­132c One green colour diary of 2009 seized from the premises of
Ghulam Mohd. Bhatt (W­29) on 16.08.2017.
D­132e One brown colour diary of 2010 seized from the premises of
Ghulam Mohd. Bhatt (W­29) on 16.08.2017.
D­132f One dark brown colour diary mark Frankford (A division of
Ultramark group) seized from the premises of Ghulam Mohd.
Bhatt (W­29) on 16.08.2017.
D­133 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 (W­29).
D­135 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.
D­135a One transparent file folder of Trison International group of
companies seized from the premises of Dr. Peerzada Kaiser
Habeeb Hakeem on 16.08.2017.
D­135b One orange colour file folder of account statement of M/s
Three Star Enterprises for the year of 2005­06 seized from the
premises of Dr. Peerzada Kaiser Habeeb Hakeem on
16.08.2017.
D­135c 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.
D­137 Seizure memo dated 26.08.2017 in respect of search and
seizure of articles/documents found from the office of Zahoor
Ahmad Shah Watali (A­10) i.e. Trison Farms and Construction
Pvt. Ltd.
D­137a One ledger and cash book of Trison Farms and construction
Pvt. Ltd. Baba Dharam Das Complex, Khayam Srinagar for the
46
year 2010­11 seized from the office of Trison farms and
construction private Limited on 26.08.2017.
D­137b One ledger and cash book of M/S Yasir Enterprises, Baghat
Barzullah, Sanat Nagar, Srinagar for the year of 2010­11
seized from the office of Trison farms and construction private
Limited on 26.08.2017.
D­137c One ledger and cash book of M/S Three Y, Sanat Nagar,
Srinagar for the year 2010­11 seized from the office of Trison
farms and construction private Limited on 26.08.2017.
D­137d One ledger and cash book of M/S Tirson International for the
year 2010­11 seized from the office of Trison farms and
construction private Limited on 26.08.2017.
D­137f A bunch of documents related to Enforcement Directorate
seized from the office of Trison farms and construction private
Limited on 26.08.2017.
D­154 Letter report no. CFSL­2017/D­993/3953 dated 06.11.2017
from CFSL, (CBI), Lodhi Road, New Delhi to CIO NIA
containing handwriting examination report alonwith original
seizure seized from the house of Ghulam Mohd. Bhat r/o
Tarahama.
D­167 Memoramdum for specimen voice sample in respect of accused
Mohd. Nayeem Khan (A­5) dated 31.07.2017.
D­168 Memorandum for specimen voice smaple in respect of accused
Farooq Ahmed Dar @ Bitta Karate (A­6) dated 31.07.2017.
D­169 Letter No. I&O/IMS/DE/33/2017/NIA dated 29.11.2017 from,
Inspector, IMS, NIA New Delhi to CIO NIA alongwith
transcripts of conversation and videos.
D­183 Technical analysis report in respect of accused Farooq Ahmad
Dar @ Bitta Karate (A­6) forwarded vide Inter office note
No.RC­10/2017/NIA/DLI/reports/1351 dated 10.12.2017.
D­184 Report on Protest calendar taken out from the open source
alongwith source path forwarded vide Inter office note No.RC10/2017/NIA/DLI/reports/1351 dated 10.12.2017.
D­197 Letter No.D.III.a/2017­Ops (NIA) dated 25.07.2017 from 2 I/C
47
(Ops/Int.), Office of Inspector General CRPF, Brein Nishat,
Srinagar, J&K to CIO NIA.
D­204 Original agreement documents between M/s Trison Farms and
Mr. Nawal Kishore Kapoor dated 07.11.2014.
D­205 Notice under section 43 (F) UA(P) Act dated 30.11.2017 to
Nawal Kishore Kapoor (W­28) for furnishing
information/document from Insp T TBhutia, NIa, New Delhi.
D­206 Reply dated 4.12.201of Notice under section 43(f) of UA(P) Act
dated 30.11.2017 from Nawal Kishore Kapoor (W­28).
D­207 Notice to witness under Section Cr.P.C.& 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 (W­28) from Sh Jyotiraditya, DC.
D­208 Letter No. Gen/2017­18/46 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 (W­28).
D­211 Letter No. F.No. ITO/W­3(4) Antg/2017­18/3540 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 (A­10).
D­212 Production cum receipt memo dated 17.11.2017 related to
documents produced by Naval Kishore Kapoor (W­28) along
with documents.
D­220 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.
D­222 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
48
along certificate 65 B of IEA.
D­224 Letter No.F. No. T­3/1/FE/SRZO/2013 dated 12.12.17 from
Sh. Sharad Kumar, (W­1) Assistant Director, Directorate of
Enforcement, Government of India, Durani House Rajbagh,
Srinagar to Sh. Ajeet Singh, SP NIA (W­229) forwarding
alongwith enclosures therein proceedings against accused
Zahoor Ahmed Shah Watali (A­10) under the FEMA Act.
D­248 Letter No. RC­10/2017/NIA/DLI/354 dated 11.01.2018 from
Sh. Rajesh Kumar, Inspector NIA (W­209) to CIO forwarding of
report on international linkage, India Hit report and report on
Pakistani based Hurriyat representative along with 65­B
Certificate.
D­252 No. RC­10/2017/NIA/DLI/646 dated 15.01.2018 received
from SI Sangram Singh, NIA (W­220) pertaining to transcripts
of downloaded videos.
D­256 Letter No. RC­10/2017/NIA/DLI/5706 dated 26.12.2017 to
GM (CM), Nodal Officer, BSNL, 4th Floor, Telephone Exchange,
Trikuta Nagar, Near RBI Jammu, J&K from CIO NIA to provide
CDRs, CAF and 65 Certificate of mobile nos. mentioned in the
letter.
D­257 Certified copies of CDRs, CAF and Form 65 B of mobile
numbers 9419011561, 9419504376, 9419075468,
9419547999, 9419006355, 9419008421, 9419001097 &
9469037774 (BSNL J&K) received from BSNL, J&K.
D­259 Letter of Nodal Officer Bharti Airtel Ltd. Forwarding certified
copies of CDR, CAF of mobile numbers 9596070530,
9906519595, 8494071470 & 8491001561 alongwith certificate
u/s 65B of Indian Evidence Act.”
(emphasis supplied in italics and bold) During the hearing, emphasis was placed by the learned
Attorney General on documents D­132, D­132(a)/23, D­3/6,
49
D­3g/20, D­3h/28, D­3j to D­3j/5, D­9b, D­9c, D­154 and D185/10. Besides these documents, our attention was also
invited to the statements of Ghulam Mohammad Bhatt (W­29)
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
50
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.
51 Accordingly, we have analysed the matter not only in
light of the accusations in the FIR and the charge­sheet or the
police report made under Section 173, but also the
documentary evidence and statements of the prospective
witnesses recorded under Sections 161 and 164, including the
redacted statements of the protected witnesses, for considering
the prayer for bail. As regards the redacted statements, objection of the
respondent was that the certificate given by the competent
authority is not in conformity with the certificate required to
be given in terms of Section 164(4) of Cr.P.C. This objection
has been justly countered by the learned Attorney General
with the argument that the objection borders on the issue of
admissibility of the said statements. We find force in the
submission that the issue regarding admissibility of the
statements and efficacy of the certificates given by the
competent authority, appended to the redacted statements
would be a matter for trial and subject to the evidence in
reference to Section 463 of Cr.P.C. and cannot be overlooked
52
at this stage. Viewed thus, the exposition in the case of
Ramchandra Keshav Adke (dead) by LRs. and Ors. Vs.
Govind Joti Chavare and Ors.18, in paragraph 25 of the
reported judgment will be of no avail to the respondent. After having analyzed the documents and the statements
forming part of the charge­sheet as well as the redacted
statements now taken on record, we disagree 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
18
(1975) 1 SCC 559 = AIR 1975 SC 915
53
(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 A­3,
A­4, A­5 and A­6 and, likewise, linkages between the
respondent (Accused No.10) and A­3 to A­12, as revealed from
the CDR analysis. The Chart A showing the inter­linkages of
the named accused inter se and Chart B showing the interlinkages of the named accused with others and the frequency
of their interaction on phone during the relevant period are as
under:
54
55
56 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:­ The terrorist and Hurriyat leaders have a close nexus with the
active militants, OGWs and stone­pelters 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. 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. Hurriyat has convenor/representative(s) in Pakistan who liaise
with Pakistan agencies and also with the Kashmir Cell of the
ISI, the United Jehad Council and the Jamaat­Ud­Dawah. The benefits drawn out of the LoC trade are reaching the
Hurriyat leaders for fuelling the unrest in the Valley. Funds are raised locally by way of collecting donations from
the common people in the name of Zakat and Betul Maal. The Hurriyat leaders are working in a systematic and
organized manner as per the instructions of their Pakistani
handlers by setting up a network of their cadres at village
level, block level and District level. The High Commission of Pakistan organizes functions and
meetings in New Delhi, to which the Hurriyat leaders from
Kashmir are invited and they are given instructions and funds
so that the unrest in the Valley can be fuelled in an organized
manner.
57 The Hurriyat leaders are raising funds from the Pakistani
establishments/agencies in the name of helping the youth
injured/killed during the action of security forces. The families of the active militants and killed militants are
supported by the Hurriyat leaders financially, socially as well
as by arranging for the higher education of their wards in
Pakistan. The Hurriyat leaders attend the funeral of killed militants,
eulogise them as ‘martyrs’, hail their anti­India activities as
‘gallant’ and deliver speeches against the Government of India
and motivate the youth of Kashmir to join militancy for the socalled freedom of Kashmir by way of an armed struggle. They
misguide the common man by spreading false propaganda
against the Government of India. To further this conspiracy, the Hurriyat leaders, the
terrorists/terror organizations and stone­pelters are working
in tandem and they are getting financial and logistic support
from Pakistan.” 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 stone­pelters have been orchestrating violence
and unrest in Jammu & Kashmir as a part of well­planned
conspiracy under the overall patronage and financial support
of Pakistani Establishment and agencies and that all the
accused persons were acting in pursuance of their common
goal i.e. to achieve secession of the State of Jammu &
Kashmir from the Union of India by waging a war against the
Government of India.
58
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 all
possible sources. They are getting funds from Pakistani
Establishment through the Pakistan High Commission;
the funds are being remitted to India from offshore
locations through hawala and accused A­10 Zahoor
Ahmad Shah Watali is an important conduit for the
same. They are raising funds through local donations such
as Zakaat & Betulmaal, etc. They are generating funds by
resorting to illegalities and irregularities such as underinvoicing and cash­dealings in LoC barter trade. All this
money is used to fund stone­pelting, to support the families
of killed and active militants and to help pellet victims and to
fuel terrorism in Jammu & Kashmir with the ultimate
objective of breaking Jammu & Kashmir away from the
Union of India.
18.3 They are all working in sync to achieve their greater
goal. The nexus between the Pakistani agencies, Hurriyat
leaders and terror organizations is amply substantiated by
the chats retrieved from their email accounts, WhatsApp,
Facebook profiles and Websites and also from the
statements of the protected witnesses. Their nexus with
hawala conduit, Zahoor Watali is also substantiated by
the documentary and digital evidence.
18.4 Though the Constitution of Jammu & Kashmir, 1957,
declares the State of Jammu & Kashmir to be an integral
part of India, and the said pronouncement is irrevocable, the
59
accused persons have been incessantly engaged in violence
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 socalled 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 A­3
to A­12 are a part of a gang who with the help of A­1 &
A­2 and others 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 to
observe strikes, hold anti­India protests through press
releases, social media and use of Immams and mosques. The
recovery of protest calendars from A­4 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 A­1
and A­2 with A­3 to A­12 in a web of directions being
passed through e­mails, 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.
60
18.8 The secessionists, especially the leaders of the
Hurriyat Conference and the accused are a part of the
terrorist designs to raise funds to propagate their ideology
and agenda of secessionism and subversive activities
prejudicial to the law of the land. The investigations have
clearly brought out that the Hurriyat has formed a welldeveloped network of cadres with district presidents, block
level leaders and workers who collect donations from public,
businessmen, apple growers and draw gains from profits of
unregulated LoC trade. The money is routed through a
complex system of hawala transfers and cash couriers
using conduits such as A­10 who gathers money from
Pakistan High Commission in New Delhi and through
fake and bogus companies floated in UAE and other
countries and delivers the funds to the Hurriyat
leadership for subversive activities.
The documents recovered and statements of witnesses
to that effect also clearly establish the mechanism of funding
and complicity of the accused in generating funds for its
further use in organizing violent protests, assistance to the
militants and creating an atmosphere of terror, chaos and
uncertainty.
18.9 During the investigation about the past conduct of the
accused, it is ascertained that as A­1 is a designated
terrorist being the head of proscribed terror organisation
Lashker­e­Toiba, A­2 is the head of proscribed organisation
Hizb­Ul­Mujahideen. A­3, A­4, A­5, A­6, A­8, A­9 are former
militants with various cases of terrorism against them and
have been detained under the Public Safety Act on
numerous occasions. A­10 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 A­3 to A10 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 A­1 and
A­2 as well as other secessionist leaders of the Hurriyat
61
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) Act­1967 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 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 local donations and by generating
illegal profits through the barter LoC trade. The accused
have used these funds for organised stone pelting through a
set charter of protests and demonstrations which are issued
in the form of “protest calendars” on regular basis resulting
in an atmosphere of chaos, terror, uncertainty and fear in
the State of Jammu & Kashmir. The main aim and objective
of this entire conspiracy is to secede the State of Jammu &
Kashmir, which is an integral part of India, from the Union
of India and wage war against the Government of India to
meet the objectives.
62
18.13 Hence, the accused persons are liable for prosecution
under the following sections of law:­
63
Accuse
d
Name of
Accused
Liable for prosecution under sections
of law
A­1 Hafiz
Muhammad
Saeed
section 120B, 121, 121A &124A of IPC,
section 13, 16, 17, 18, 20, 38, 39 & 40
of Unlawful Activities (Prevention) Act,
1967.
A­2 Mohd. Yusuf
Shah @ Syed
Salahuddin
section 120B, 121, 121A & 124A of IPC,
section 13, 16, 17, 18, 20, 38, 39 & 40
of Unlawful Activities (Prevention) Act,
A­3 Aftab Ahmad
Shah @
Aftab Hilali
Shah @
Shahid­ulIslam
section 120B, 121, 121A & 124A of IPC,
section 13, 16, 17, 18, 20, 39 & 40 of
Unlawful Activities (Prevention) Act,
A­4 Altaf Ahmad
Shah @
Fantoosh
section 120B, 121, 121A & 124A of IPC,
section 13, 16, 17, 18, 20, 39 & 40 of
Unlawful Activities (Prevention) Act,
A­5 Nayeem
Ahmad Khan
section 120B, 121, 121A & 124A of IPC,
section 13, 16, 17, 18, 20, 39 & 40 of
Unlawful Activities (Prevention) Act,
A­6 Farooq
Ahmad Dar
@ Bitta
Karate
section 120B, 121, 121A & 124A of IPC,
section 13, 16, 17, 18, 20, 39 & 40 of
Unlawful Activities (Prevention) Act,
A­7 Md. Akbar
Khanday
section 120B, 121, 121A & 124A of IPC,
section 13, 16, 17, 18, 20, 39 & 40 of
Unlawful Activities (Prevention) Act,
A­8 Raja
Mehrajuddin
Kalwal
section 120B, 121, 121A & 124A of IPC,
section 13, 16, 17, 18, 20, 39 & 40 of
Unlawful Activities (Prevention) Act,
A­9 Bashir
Ahmad Bhat
@ Peer
Saifullah
section 120B, 121, 121A & 124A of IPC,
section 13, 16, 17, 18, 20, 39 & 40 of
Unlawful Activities (Prevention) Act,
A­10 Zahoor
Ahmad Shah
Watali
section 120B, 121, 121A & 124A of IPC,
section 13, 16, 17, 18, 20, 39 & 40 of
Unlawful Activities(Prevention) Act,1967.
A­11 Kamran
Yusuf
section 120B, 121 & 121A of IPC,
section 13, 16, 18 & 20 of Unlawful
Activities (Prevention) Act, 1967.
A­12 Javed
Ahmad Bhat
section 120B, 121 & 121A of IPC,
section 13, 16, 18 & 20 of Unlawful
64
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 CrPC for the offences
under section 121, 121A and 124A of IPC has been accorded
by the Ministry of Home Affairs, Government of India vide
order No.11011/26/2017/IS­IV dated 16th January, 2018.
The sanction for prosecution under section 188 CrPC has
also been accorded by Government of India vide order
No.11011/26/2017/IS­IV 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 of the IPC, sections 13, 16, 17, 18, 20,
38, 39 & 40 of the Unlawful Activities (Prevention) Act, 1967
in respect of the accused A­1 to A­12 (As per the mentioned
in para 18.13), issue process to the accused persons and try
the aforesaid accused persons and punish them in
accordance with law.”
(emphasis supplied in italics and bold) The charge against respondent is not limited to Section
17 of the 1967 Act regarding raising funds for terrorist acts
but also in reference to Sections 13,16,18,20,38,39 and 40 of
the 1967 Act. Section 13 is in Chapter II of the 1967 Act. The
special provisions regarding bail under Section 43D(5),
however, are attracted in respect of the offences punishable
under Chapters IV and VI, such as Sections 16,17,18,20,38,39
and 40 of the 1967 Act. Sections 39 and 40 form part of
Chapter VI, whereas other sections (except Section 13) form
65
part of Chapter IV to which the subject bail provisions are
applicable, mandating the recording of satisfaction by the
Court that there are reasonable grounds for believing that the
accusation against such person is prima facie true. Reverting to the documents on which emphasis has been
placed, document D­132 is the Seizure Memo of properties
seized from the premises of Ghulam Mohammad Bhatt (W­29),
the then Munshi/Accountant of the respondent (Accused
No.10). Document D­132(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 (W­29) 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
66
recovered from his residence showing transfer of substantial
cash amounts to different parties, which he has explained by
stating that cash transactions were looked after by the
respondent (Accused No.10) himself. He had admitted the
recovery of the green colour document from his residence,
bearing signature of the respondent (Accused No.10) and
mentioning about the cash amounts received and disbursed
during the relevant period between 2015 and 2016. The
accusation against the respondent (Accused No.10) is that
accused A­3 to A­10 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
67
the funding of terrorist activities in J & K and, in particular,
the involvement of the respondent (Accused No.10), the
charge­sheet 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 life­blood. 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 of underground networks, well­planned stone
pelting, school burnings, targeted attacks, provision of legal
support for terrorists and over­ground workers facing
judicial process, ex­gratia payment for militants killed in
terrorist operations, regular payments to the families of
terrorists and militants killed or convicted, funds for
propaganda to clergy as well as relief measures for civilian
population and also in case of natural disasters. The
investigation in the case has revealed that the secessionists
are mobilizing funds from all possible sources to fuel unrest
and support the on­going secessionist and terrorist activities
in Jammu & Kashmir.
17.6.1 Funding from Pakistan:
i) The Hurriyat leaders are receiving funds from Pakistan
through conduits and also from the Pakistan High
Commission directly. It was substantiated by an
incriminating document seized from the house of
Ghulam Mohd. Bhatt druing search. Ghulam Mohd.
Bhatt worked as the cashier­cum­accountant with
accused A­10 Zahoor Ahmad Shah Watali, a known
Hawala conduit. The document clearly shows that
accused A­10 Zahoor Ahmad Shah Watali was receiving
money from Accused A­1 Hafiz Saeed (Head of Jamaatud­Dawa), from the ISI, from the Pakistan High
Commission at New Delhi and also from a source based
in Dubai. Accused A­10 was remitting the same to the
Hurriyat leaders, separatists and stone­pelters of
Jammu & Kashmir. The said document has been
68
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 A­10
Zahoor Watali.
The signature of Accused A­10 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 un­edited
version of the audio/video furnished by the office of India
Today T.V. News Channel wherein accused A­5 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
anti­India protests and agitations after the killing of Burhan
Wani, the Commander of the proscribed terror organisation
Hizb­ul­Mujahiddin. He further speaks about funds reaching
them from Saudi Arabia/Dubai through Hawala via Delhi
(Balimaran/Chandni Chowk). He admits that S.A.S. Geelani
(Chairman, APHC­G), Mirwaiz Umar Farooq (APHC­M) 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,
APHC­G by paying at least 10­12 crores during anti­India
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 A­6 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, anti­India protests and processions and stonepelting on the security forces. He further claimed that he has
69
his cadres in every part of Kashmir who can act on his call
at any given point of time and fuel unrest in the Valley.
When given an offer of financial support, accused Bitta
Karate put forth a demand of Rs.70 crores for fuelling unrest
upto six months.
The voice samples of Nayeem Khan and Farooq
Ahmad Dar @ Bitta Karate have been forensically examined
and the CFSL report has confirmed the match with their
voices.
iv) Further, the investigation has revealed that the seniormost officials of the High Commission of Pakistan were in
regular contact with the Hurriyat leaders. The High
Commission of Pakistan in New Delhi used to organise
functions and meetings in New Delhi, to which the Hurriyat
leaders from Kashmir were invited and they were given
instructions and funds on a regular basis. These funds
were given to various allied groups of the APHC and
investigation have revealed that a First Secretary level
officer of Pakistan High Commission in New Delhi
would act as a channel and A­10 Zahoor Ahmed Shah
Watali would act as a courier to deliver the funds to
the Hurriyat leadership. These funds as explained
above were used to foment the secessionist and
separatist activities and unrest in the valley in an
organized manner. One such invitation card from the
Pakistan High Commission was seized from the house of A­6
Farooq Ahmad Dar @ Bitta Karate:­
On the occasion of the National Day
Pakistan High Commissioner and
Mrs. Salman Bashir
Request the pleasure of the company of
Mr. Farooq Ahmed Dar
At a Reception
on Friday, 22 March 2013 from 1930 to 2100 hrs.
Venue: R.S.V.P.
2/50­G, Shantipath, Tel. 011­24121819
Chanakyapuri, New Dehli Fax 011­26872339

Dress: National/Lounge Suit/Uniform E­mail:pakhcnd@gmail.com
70
(Please bring this card with you)
Investigation has also established that the accused A­4 was
in direct contact with the High Commissioner of Pakistan in
New Delhi and would apprise him about the situation in
Jammu & Kashmir.
17.6.2 Funding from Terrorist Organisations based in
Pakistan:
During the course of investigation, it is also ascertained that
the separatists and secessionists of Jammu & Kashmir were
also receiving money from the terrorists and terrorist
organizations operating out of Pakistan/PoK. The
incriminating document seized from the house of
Ghulam Mohd. Bhatt who worked as a cashier­cumaccountant with accused A­10 Zahoor Watali shows
that Zahoor Watali received money from accused A­1
Hafiz Saeed, Head of JuD and Chief of proscribed terror
organisation Lashkar­e­Toiba 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 well­established 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 Tehreek­e­Hurriyat.
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 to 10 Lac per district as Baitulmal.
Funds are also collected from apple­growers and
businessmen who are compelled to donate to Hurriyat
71
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 A­4 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 A­8
Mehrajuddin Kalwal, who was also the District President of
Tehreek­e­Hurriyat 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 so­called freedom movement. This is clearly
reflected in the Website of the Hurriyat Conference viz.
http://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 using the same to fuel secessionist activities
and to support the families of killed and jailed terrorists.
17.6.4 LOC Trade:
During the course of investigation, it has been established
that the secessionist and separatist leaders are raising funds
through LoC trade by way of directing the Kashmiri traders
to do under­invoicing of the goods which were imported
through LoC barter trade. They sell the goods to the traders
in Delhi and a part of the profit of the same is shared with
the Hurriyat leaders and other separatists, which in turn is
used on anti­India propaganda, for mobilizing the public to
organise protests and stone­pelting and to support families
of killed/jailed militants. The hawala operators based in
Srinagar, New Delhi and other parts of the country and
abroad are being used to transfer the funds so generated.
The investigation has revealed that the funds are generated
by resorting to sale of third­party goods, under­weighing,
under­invoicing, large­scale dealings in cash and committing
irregularities in maintenance of records. This modus­
72
operandi 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 Hizb­Ul­Mujahideen. Investigation
has also revealed that certain ex­militants 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 off­shore locations to India to
fuel­anti­India activities in Jammu & Kashmir.
i) During the course of investigation, it was ascertained
that accused A­10 Zahoor Ahmad Shah Watali is one
such conduit. The seizure of the incriminating
document from the house of his cashier­cum­accountant
viz. Ghulam Mohd. Bhatt regarding the foreign
contributions received by Zahoor Ahmad Shah Watali
from Paskistani 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 A­10 Zahoor Ahmad Shah Watali was bringing
money from off­shore 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
73
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 Watali in
different accounts from the year 2011 to 2016. An
amount of Rs.93,87,639.31/­ came in Zahoor Ahmad
Shah Watali A/c No.NRE­0252040200000505 in J&K
Bank from 2011 to 2013. An amount of Rs.14 lakh was
remitted in the account of Acharya Shri Chander
College of Medical Sciences (ASCOMs), Jammu account
No.1213040100000229 on 09.04.2013 through NEFT
against fee deposited for his son, viz., Yawar Zahoor
Shah Watali. An amount of Rs.60 lakh was remitted in
current account of accused Zahoor Ahmad Shah Watali
in J&K Bank A/c No.CD4508. An amount of Rs.5 lakh
was remitted in the account of Trison Farms &
Constructions Pvt. Ltd. A/c OTN­10162. The
investigation has revealed that all these foreign
remittances are from unknown sources.
iv) During the course of investigation, it was also revealed
that on 07.11.2014, one Naval Kishore Kapoor, son of
Om Prakash Kapoor, resident of P.O. Box­8669, Aman,
U.A.E. entered into an agreement with Trison Farms
and Constructions Pvt. Ltd. through its Managing
Director 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
74
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 2011­12 to 2016­17). It was also
ascertained that the large sum of money i.e.
Rs.5,57,90,000 was mobilized by Naval Kishore Kapoor
from unkown sources and remitted to the accused
Zahoor Ahmad Shah Watali over a period of 2 years to
lease a piece of land which is not even existing in the
name of the company mentioned as first party in the
agreement and the agreement itself lacks legal
sanctity. This proves that the said agreement was a
‘cover’ created by the accused Zahoor Ahmad Shah
Watali to bring foreign remittances from unknown
sources to India.
vi) During the course of investigation, it is also
ascertained that the Chartered Accountant, who signed
the audited balance sheets of the firms belonging to the
accused A­10 Zahoor Ahmad Shah Watali viz. M/s
Trison International (2013­14 and 2015­16), Trison
Farms & Constructions Pvt. Ltd. (2013­14 and 2015­16),
M/s 3Y (2012­13, 2013­14 and 2015­16) and M/s Yasir
Enterprises (2013­14 and 2015­16) 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.
75
vii) The investigation has also revealed that in the FY 2010­
11, a firm belonging to accused A­10 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 same was used towards repayment of
secured loan of Rs.2,94,53,353/­ in the books of J&K
Bank. The source of money with the Directors could not
be explained satisfactorily by the accused Zahoor
Ahmad Shah Watali.
viii) The seizure from the house of accused A­10 Zahoor
Ahmad Shah Watali, of a list of ISI officials and a
letter from Tariq Shafi, proprietor of AI Shafi group
addressed to Pakistan High Commission recommending
grant of visa to Zahoor Watali shows his proximity with
Pakistani establishment. It is pertinent to mention here
that the name of Tariq Shafi figures in the document of
foreign contributions seized from the house of Zahoor
Watali’s cashier­cum­accountant viz., Ghulam Mohd.
Bhatt.”
(emphasis supplied in italics and bold)

  1. In reference to these accusations, the entry in the diaries
    and the green­colour document, recovered from the residence
    of Ghulam Mohammad Bhatt, is significant. Further, the
    seizure memo described as document D­3/6, in respect of
    search and seizure of articles/documents seized from the
    premises of the respondent (Accused No.10) dated 3rd June,
    2017, would unravel the activities of the respondent, including
    76
    regarding his financial deals. Another crucial document
    described as D­3g/20 is a contact diary seized from the
    respondent vide Memo D­3, which contains the Pakistan
    National name and contact “Tariq Shafi 0092425765022…
    26A” whose name figures in document D­132(a)/23. The Code
    “0092” pertains to Pakistan. Another contact diary was seized
    from the respondent vide Memo D­3, which, at page D­3h/28
    contains the same name and contact, namely, “Tariq Shafi
    00923008459775/ 0092425765022”. The documents D­3j to
    D­3j/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 charge­sheet makes no
    reference to any other criminal case against the respondent.
    Additionally, the charge­sheet is accompanied with documents
    D­9b and D­9c, which are photographs of ex­militant Aftab
    Hilali Shah @ Shahid­ul­Islam (A­3) holding AK­47, seen with
    other terrorists. These photographs were seized from the
    77
    residence of the said ex­militant on 3rd June, 2017. The
    prosecution case is that the respondent (Accused No.10) was
    in constant touch with the said ex­militant Aftab Hilali Shah @
    Shahid­ul­Islam (A­3), as noticed from the inter­linkage chart
    depicted above. That fact is backed by the CDR analysis
    report, also part of the charge­sheet. The charge­sheet also
    contains document D­185/10, which is a contact list of
    accused Nayeem Khan (A­5) 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 D­132(a)/23. The
    Designated Court, besides adverting to the aforementioned
    documents, also adverted to other documents and the
    statements of the prospective witnesses (Ws­1, 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
    78
    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 D­132(a) and then discarding the statement of
    witnesses recorded under Section 161 and also the statements
    recorded under Section 164, presented by the Investigating
    Agency in a sealed cover. As aforesaid, the High Court ought to
    have taken into account the totality of the materials/evidences
    which depicted the involvement of the respondent in the
    commission of the stated offences and being a member of a
    larger conspiracy, besides the offence under Section 17 for
    raising funds for terrorist activities.
  2. In the case of Niranjan Singh Karam Singh Punjabi
    (supra), the Court essentially considered the scope and ambit
    of the enquiry by the Trial Court at the stage of “discharge”. In
    that context, the Court made observations in paragraphs 6
    and 8 of the said judgment which must be understood
    accordingly. In the present case, however, we are called upon
    to consider the prayer for bail in the context of the purport of
    79
    the proviso to Section 43D(5) of the 1967 Act which mandates
    that the accused person involved in the commission of offence
    referable to Chapters 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
    Cr.P.C. 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.
  3. 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
    80
    effect that the charge­sheet need not contain detailed analysis
    of the evidence. It is for the Court considering the application
    for bail to assess the material/evidence presented by the
    Investigating Agency along with the report under Section 173
    of Cr.P.C. in its entirety, to form its opinion as to whether
    there are reasonable grounds for believing that the accusation
    against the named accused is prima facie true or otherwise.
  4. 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 conditions contained in Section
    20(8) TADA control the grant of bail under Section 20(4) of
    the Act also? We shall take up for consideration these
    questions in seriatim”
    81
    The focus essentially was on matters relevant for consideration
    of application for bail on the ground of default in filing the
    charge­sheet within the statutory period. Indeed, one of the
    questions was about the scope of the provisions relating to
    grant of bail in respect of offence punishable under special
    enactment TADA. That has been discussed in paragraphs 13
    and 14 of the reported judgment, which reads thus:
    “13. We would, therefore, at this stage like to administer a
    word of caution to the Designated Courts regarding invoking
    the provisions of TADA merely because the investigating
    officer at some stage of the investigation chooses to add an
    offence under same (sic some) provisions of TADA against an
    accused person, more often than not while opposing grant of
    bail, anticipatory or otherwise. 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.
  5. 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 CrPC. 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 CrPC notwithstanding anything contained
    82
    in Section 260(1) or 262 CrPC by applying the provisions of
    Sections 263­265 of the Act is a marked departure. The right
    of appeal straight to the Supreme Court against any
    judgment, sentence or order not being an interlocutory order
    vide Section 19(1) of the Act demonstrates the seriousness
    with which Parliament has treated the offences under TADA.
    An 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 chargesheeting 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 charge­sheet 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’ activities
    rather than deterring terrorist activities. The remedy in such
    cases would be worse than the disease itself and the charge
    against the State of misusing the provisions of TADA would
    gain acceptability, which would be bad both for the criminal
    and the society. Therefore, it is the obligation of the
    investigating agency to satisfy the Designated Court from the
    material collected by it during the investigation, and not
    merely by the opinion formed by the investigating agency,
    that the activity of the ‘terrorist’ falls strictly within the
    parameters of the provisions of TADA before seeking to
    charge­sheet an accused under TADA. The Designated Court
    must record its satisfaction about the existence of a prima
    facie case on the basis of the material on the record before it
    proceeds to frame a charge­sheet against an accused for
    offences covered by TADA. Even after an accused has been
    charge­sheeted for an offence under TADA and the
    prosecution 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,
    83
    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 been given an opportunity
    to oppose the application for such release, and
    (b) where the Public Prosecutor opposes the application,
    the court is satisfied that there are reasonable grounds
    for believing that he is not guilty of such offence and
    that he is not likely to commit any offence while on bail.
    (9) The limitations on granting of bail specified in subsection (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 sub­section
    (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. Sub­section (9) qualifies
    84
    sub­section (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 Court to grant bail but it places
    further limitations on the exercise of its power to grant bail
    in cases under TADA, as is amply clear from the plain
    language of Section 20(9). The Constitution Bench in Kartar
    Singh case19 while dealing with the ambit and scope of subsections (8) and (9) of Section 20 of the Act quoted with
    approval the following observations from Usmanbhai case20:
    (SCC p. 704, para 344)
    ‘Though there is no express provision excluding the
    applicability of Section 439 of the Code similar to the
    one contained in Section 20(7) of the Act in relation to a
    case involving the arrest of any person on an accusation
    of having committed an offence punishable under the
    Act or any rule made thereunder, but that result must,
    by necessary implication, follow. It is true that the
    source of power of a Designated Court to grant bail is
    not Section 20(8) of the Act 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
    19
    (1994) 3 SCC 569
    20
    (1988) 2 SCC 271
    85
    Section 20(4) of the TADA Act in relation to a case under
    the provisions of TADA.’
    Thus, the ambit and scope of Section 20(8) of TADA is no
    longer res integra and from the above discussion it follows
    that both the provisions i.e. Section 20(4) and 20(8) of TADA
    operate in different situations and are controlled and guided
    by different considerations.”
  6. We fail to understand as to how this decision will be of
    any avail to the respondent. In our opinion, the Designated
    Court had rightly rejected the bail application after adverting
    to the relevant material/evidence indicative of the fact that
    there are reasonable grounds for believing that the accusation
    against the respondent is prima facie true.
  7. With reference to the document D­132(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
    86
    absence of any independent evidence. Learned Attorney
    General, relying on the underlying principle in Khoday
    Distilleries Ltd. and Ors. Vs. State of Karnataka and
    Ors.21
    , 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 the same
    against the respondent by other evidence. This argument need
    not detain us. For, we find force in the argument of the
    learned Attorney General that the issue of admissibility and
    credibility of the material and evidence presented by the
    Investigating Officer would be a matter for trial. Furthermore,
    indubitably, the prosecution is not solely relying on the
    document D­132(a) recovered from the residence of Ghulam
    Mohammad Bhatt (W­29). There are also other incriminatory
    documents recovered from respondent (Accused No.10) himself
    during the search, including other independent evidence,
    which, indeed, will have to be proved during the trial.
    21
    (1995) 1 SCC 574 (para 60)
    87
  8. The appellant has relied on the exposition in Salim
    Khan (supra), to contend that in cases where the High Court
    adopted a totally erroneous approach, as in the present case,
    discarding the crucial material/evidence which is referred to in
    the report under Section 173 Cr.P.C. 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
    88
    to apply its mind to ascertain whether the accusations against
    the accused are prima face true. Indeed, in the present case,
    we are not called upon to consider the prayer for cancellation
    of bail as such but to examine the correctness of the approach
    of the High Court in granting bail to the accused despite the
    materials and evidence indicating that accusations made
    against him are prima facie true.
  9. In a decision of this Court in Chenna Boyanna Krishna
    Yadav (supra), to which reference has been made, the Court
    has re­stated the twin conditions to be considered by the
    Court before grant of bail in relation to MCOCA offences. We
    are of the view that in the present case, the Designated Court
    rightly opined that there are reasonable grounds for believing
    that the accusation against the respondent is prima facie true.
    As we are not inclined to accept the prayer for bail, in our
    opinion, it is not necessary to dilate on other aspects to
    obviate prolixity.
  10. A fortiori, we deem it proper to reverse the order passed
    by the High Court granting bail to the respondent. Instead, we
    89
    agree with the conclusion recorded by the Designated Court
    that in the facts of the present case, the respondent is not
    entitled to grant of bail in connection with the stated offences,
    particularly those falling under Chapters IV and VI of the
    1967 Act.
  11. Accordingly, this appeal succeeds. The impugned
    judgment and order is set aside and, instead, the order passed
    by the Designated Court rejecting the application for grant of
    bail made by the respondent herein, is affirmed.
  12. All pending applications are also disposed of.
    …………………………..….J.
    (A.M. Khanwilkar)
    …………………………..….J.
    (Ajay Rastogi)
    New Delhi;
    April 02, 2019.