J&K&L High Court Denies Bail To Man Accused Of Facilitating Safe Movement Of Hizbul Mujahideen Militants To Jammu

The High Court of Jammu & Kashmir and Ladakh has dismissed the bail appeal of an accused alleged to have acted as an intermediary between Hizbul Mujahideen militants and a police officer, facilitating the safe movement of militants from Shopian to Jammu for exfiltration to Pakistan and transferring funds for arms and ammunition, holding that the prima facie material collected during investigation must prevail at the bail stage under the stringent provisions of the Unlawful Activities (Prevention) Act.The Court was hearing an appeal under Section 21 of the National Investigation Agency Act, 2008 directed against the order passed by the learned Special Judge NIA Cases, Jammu, whereby the bail application of the appellant for offences under Sections 120-B, 121, 121-A & 122 IPC and Sections 17, 18, 19, 38, 39 & 40 of the UA(P) Act was dismissed.A Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem, while dismissing the appeal, observed, “... The appellant has been found to be part of this larger conspiracy and acted as an intermediary, who facilitated the safe movement of A-1 (his real brother and District Commander of HM), and other militants from Shopian to Jammu in the month of February 2019 for ex-filtration to Pakistan with the help of HM leadership.”The appellant, Syed Irfan Ahmad (A-6), was sent up for trial along with 10 co-accused in a Hizbul Mujahideen terror conspiracy case involving arms and ammunition recovery, fund raising and transferring, and waging war against India. The appellant along with co-accused was formally charge-sheeted and the prosecution examined 25 witnesses thus far, and two supplementary charge-sheets were filed.The prosecution case proceeded on the basis of an alleged larger conspiracy hatched by the accused to wage war against India by procuring arms and ammunition. The appellant was alleged to have acted as an intermediary between accused Naveed Mushtaq (A-1) his elder brother and District Commander of Hizbul Mujahideen Irfan Shafi Mir (A-2), and Devender Singh (A-3), a police officer in the Anti-Hijacking Unit, for extending support to the banned terrorist organization.The trial court dismissed the bail application noting that PW-31 had confirmed the complicity of the appellant, and PW-37 had travelled with A-2, A-3 and the appellant from Qazigund to Jammu in February 2019, besides bank records showing transfer of Rs. 50,000/- from the appellant's account to A-3, and call detail records showing hundreds of calls between them.Court's Observation:The Court noted that the present case pertains to waging war against India, hatching of conspiracy, and smuggling of arms and ammunition at the instance of banned terrorist organization Hizbul Mujahideen. The Court found that the appellant acted as a go-between for his elder brother (A-1) and Devender Singh (A-3). The call detail records prima facie showed that the appellant allegedly made hundreds of calls to A-1, A-2 and A-3 as part of the conspiracy to supply arms and ammunition, to harbour militants and to wage war against India.Rejecting the appellant's argument that he was only trying to help society, the Court held that such a plea cannot be accepted in present proceedings and can only be a valid defence at the appropriate stage during trial.The Court also noted a disturbing feature that during the pendency of the appeal, the appellant filed an application before the trial court seeking short-term bail on health grounds while the High Court was seized of the matter. The Court held that this amounted to abuse of process and forum shopping, and citing Kusha Duruka v. State of Odisha, (2024) 4 SCC 431, observed that a litigant who attempts to pollute the stream of justice is not entitled to any relief.On the legal position regarding bail under UAPA, the Court held that formal charges were framed after drawing prima facie satisfaction, thereby attracting the rigors of Section 43-D(5) of the UA(P) Act. The Court observed that to arrive at the conclusion whether there is a prima facie case, the material collated by the investigating agency must prevail until contradicted or disproved by other evidence.The Court relied upon Union of India v. Barakathullah, 2024 SCC OnLine SC 1019 and National Investigation Agency v. Zahoor Ahmed Shah Watali, (2019) 5 SCC 1, observing that the Court must look at the totality of the material gathered by the Investigating Agency as a whole, and the contents of the documents relied upon by the prosecution are to be presumed true at this stage.The Court further held that evaluating only the examined witnesses and ignoring the remaining ones would amount to a mini-trial which is legally impermissible, and that the primary role attributed to the appellant as an intermediary in the conspiracy to terrorist activities can be looked into by piecing together multiple links like phone records, money trails, meetings, and material against co-conspirators who may appear later in the list of...

J&K&L High Court Denies Bail To Man Accused Of Facilitating Safe Movement Of Hizbul Mujahideen Militants To Jammu

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J&K&L High Court Denies Bail To Man Accused Of Facilitating Safe Movement Of Hizbul Mujahideen Militants To Jammu

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