Supreme Court Asks NIA To Show 'Hard Evidence' To Justify Detention Of Kashmiri Separatist Shabir Shah In Terror Funding Case

Upon extensively hearing the bail plea of Kashmiri separatist Shabir Ahmed Shah in a terror funding case, the Supreme Court today expressed that it will take a call on his bail on February 10.The Court questioned the National Investigation Agency about its reliance on the statements of a co-accused Vani, noting that he was acquitted on the same allegation on which the agency booked Shah."We understand the sensitivity of the matter. But we just can't shut our eyes to the facts available. Prima facie, we can tell you, no sympathies with people who indulge in these things, but then facts have to be there to support the allegations. Show us hard evidence to justify his detention beyond 6 years", remarked Justice Sandeep Mehta.A bench of Justices Vikram Nath and Mehta heard the case. After considering the arguments of Senior Advocates Colin Gonsalves (for Shah) and Siddharth Luthra (for NIA), and taking into account Gonsalves' submission that Shah is in a "precarious condition" so the Court may grant bail, albeit restraining Shah to his house and garden, Justice Nath expressed that a call would be taken on February 10.During the hearing, Gonsalves took the Court through the main chargesheet and 2 supplementary chargesheets, pointing out that Shah's name figured only in the 2nd supplementary chargesheet. He stressed that the allegations against Shah pertain only to some old speeches, and terror-funding, for which he has been in custody for about 39 years.When the bench queried as to how many years Shah has spent in custody in the present case, Gonsalves conceded that he has been detained for about 6.5 years. Responding to a query on the specific allegations against Shah, he said that co-accused Vani is stated to have been apprehended carrying about Rs.62 lakhs, Rs.10 lakhs out of which were meant to be given to Shah. It is also claimed that Shah gave inflammatory speeches and when a stone pelter came to his house, he referred the pelter to a lawyer and provided legal assistance.Gonsalves highlighted that it is a case of no material, as there was no recovery effected from Shah and there is no call data record in support of the allegations. He emphasized that the allegations qua inflammatory speeches were not combined with any "warfare" activity. Rather, the speeches were only Shah's lament, as a senior leader of Kashmir, at the state of affairs in the area. It was further contended that all that has been attributed in the chargesheet has been taken as Shah's conduct.Reliance was also placed on the Supreme Court's judgment in Union of India v. KA Najeeb case, while pointing out that in Najeeb, there was a delay of 3.5 years, but in the present case, there has been a delay of 8 years. Gonsalves further told the Court that both co-accused Vani and Shah have been given bail in the ED case.Pressing for bail, Gonsalves lastly submitted that Shah is very sick and now 74 years old. His speech days are over and he is in a very precarious condition, so bail may be considered, subject to his remaining in his house and garden."He has been detained for 39 years for using uncomfortable words", he remarked. On the aspect of speeches, Justice Mehta said, "as they say, pen is mightier than the sword. So is the case with mic".Appearing for the NIA, Luthra informed the Court that the trial is ongoing and about 34 witnesses have already been examined. The prosecution has pruned the witness list and brought it down to 290 witnesses. The same will be pruned further and at best, the prosecution will examine about 150 witnesses.Further, it was alleged that Shah has contributed to delay in trial, while the prosecution has not. The senior counsel also claimed that Shah's total detention period stands at 5 years and 2 months (all included), as opposed to his claim of 39 years.He placed reliance on the Supreme Court's judgment in NIA v. Zahoor Ahmad Shah Watali. Notably, Gonsalves countered this decision, pointing out that 3 different coordinate benches of the Court have taken views contrary to Watali. He emphasized these benches' observations regarding surficial analysis to form a prima facie view."There's a very serious underlying question in this. Vani faced trial for this very same allegation (of carrying money). He is acquitted. On the very same allegation, can he be treated to be a witness against another person? In Vani's statement, is there any connection shown with this accused after 2005? If this part (allegation related to money) goes, what remains?", Justice Mehta posed to Luthra.Before parting, the bench also took note of Gonsalves' submission that 6 Prime Ministers held discussions with Shah and were photographed with him. "Why would they meet him and get photographed if he was a terrorist?", the senior counsel questioned.Looking at the pictures placed on record, the bench noted that Shah was photographed even with former US President George Bush and Senior Advocate Ram Jethmalani (since deceased). Interestingly, one of the...

Supreme Court Asks NIA To Show 'Hard Evidence' To Justify Detention Of Kashmiri Separatist Shabir Shah In Terror Funding Case

Debby Jain

'We have no sympathy for such people, but there must be facts to support the allegations,' the Court remarked.

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