National Investigation Agency vs Zahoor Ahmad Shah Watali

Unlawful Activities (Prevention) Act, 1967 – s.43D – Application of – Held: s.43D 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.

Unlawful Activities (Prevention) Act, 1967 – Proviso to s.43D(5) – Purport of – Discussed.

Bail – Grant of – Factors to be considered – Discussed. Words & Phrases – “prima facie true”, in context of 1967 Act – Meaning of – Unlawful Activities (Prevention) Act, 1967. Allowing the appeal, the Court

HELD: 1.1 Matters to be considered for deciding an application for bail (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 justice being thwarted by grant of bail. When it comes to offences punishable under special enactments, such as the Unlawful Activities (Prevention) Act, 1967, 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. By virtue of the proviso to sub-section (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. Under the special enactments such as Terrorist and Disruptive Activities (Prevention) Act, 1985 (TADA), Maharashtra Control of Organised Crime Act, 1999 (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. [Paras 15, 17] [1087-E-G; 1088-A; F-G; 1089-A-B]

1.2 By its 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. The exercise to be undertaken by the Court at this stage- of giving reasons for grant or non-grant of bail- is markedly different from discussing merits or demerits of the evidence. The elaborate 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 probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. The High Court ventured into an area of examining the merits and demerits of the evidence. 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 charge-sheet already filed against the respondent is in complete disregard of the duty of the Court to record its 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 charge-sheet (report under Section 173 of Cr.P.C.) and other material gathered by the Investigating Agency during investigation. 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. Soon after the arrest of the accused on the basis of the FIR registered against him, but before filing of the charge-sheet by the Investigating Agency; after filing of the first charge-sheet and before the filing of the supplementary or final charge-sheet 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 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 charge-sheet (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 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. [Paras 17-19][1088-B-E; 1092-C-H; 1093-A-F]

1.3 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. 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. [Paras 21, 23][1101-E-; 1102-C]

1.4 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. Further investigation is in progress. The material produced by the Investigating Agency thus far (pending further investigation) shows the linkage of the respondent (Accused No.10) with A-3, A-4, A-5 and A-6 and, likewise, linkages between the respondent (Accused No.10) and A-3 to A-12, as revealed from the CDR analysis. The Chart A shows the inter-linkages of the named accused inter se and Chart B showing the inter-linkages of the named accused with others and the frequency of their interaction on phone during the relevant period. 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 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. The accusation against the respondent (Accused No.10) is that accused A-3 to A-10 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. [Paras 24-28][1102-E-H; 1112-E-F; 1113-C-E]

1.5 The seizure memo described as document D-3/6, 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 regarding his financial deals. Another crucial document described as D-3g/20 is a contact diary seized from the respondent vide Memo D-3, which contains the Pakistan National name and contact “TS 0092425765022…26A” whose name figures in document D-132(a)/23. The Code “0092” pertains to Pakistan. Another contact diary was seized from the respondent vide Memo D-3, which, at page D-3h/28 contains the same name and contact, namely, “TS 00923008459775/ 0092425765022”. The documents D-3j to D-3j/5 also indicate the involvement of the respondent in terrorist activities, including that three cases of TADA have been registered against him in the past and investigated and one case of J & K PSA, 1978. The High Court erroneously proceeded on the premise that the charge-sheet makes no reference to any other criminal case against the respondent. Additionally, the charge-sheet is accompanied with documents D-9b and D-9c, which are photographs of ex-militant A-3 holding AK-47, seen with other terrorists. These photographs were seized from the residence of the said ex-militant on 3rd June, 2017. The prosecution case is that the respondent (Accused No.10) was in constant touch with the said ex-militant A-3, as noticed from the inter-linkage chart. That fact is backed by the CDR analysis report, also part of the charge-sheet. The charge-sheet also contains document D-185/10, which is a contact list of accused A-5 retrieved through forensic analysis, having mobile numbers of persons associated with Hurriyat party; and of one ‘MCP’ who is none other than the First Secretary of Pakistan High Commission. His name also figures in document D-132(a)/23. The Designated Court, besides adverting to the aforementioned documents, also adverted to other documents and the statements of the prospective witnesses (Ws-1, 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 facie true. The High Court adopted a tenuous approach - by first discarding the document D-132(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. 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. Proviso to Section 43D(5) of the 1967 Act 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. 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, to the effect that the charge-sheet need not contain detailed analysis of the evidence. It is for the Court considering the application for bail to assess the material/evidence presented by the 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. [Paras 29-31][1121-F-H; 1122-A-H; 1123-B-F]

1.6 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. The issue of admissibility and credibility of the material and evidence presented by the Investigating Officer would be a matter for trial. The High Court, in the present case, adopted an inappropriate approach whilst considering the prayer for grant of bail. The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. [Paras 33-35][1128-E-F; 1129-B; E-G]

1.7 The Designated Court rightly opined that there are reasonable grounds for believing that the accusation against the respondent is prima facie true. The order passed by the High Court granting bail to the respondent is reversed. In 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. 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. [Paras 36-38][1130-A-D] K. Veeraswami v. Union of India and Ors. (1991) 3 SCC

655 : [1991] 3 SCR 189 – followed.

Salim Khan v. Sanjai Singh and Anr. (2002) 9 SCC 670; Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. (2005) 5 SCC 294 : [2005] 3 SCR 345 – relied on.

Hitendra Vishnu Thakur and Ors. v. State of

Maharashtra and Ors. (1994) 4 SCC 602 : [1994] 1 Suppl. SCR 360 ; Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya and Ors. (1990)

4 SCC 76 : [1990] 3 SCR 633 ; Manohar Lal Sharma v. Union of India (2017) 11 SCC 783 ; Jayanta Kumar Ghosh and Ors. v. State of Assam and Anr. (2010) 6 Gauhati Law Reports 727 ; Davender Gupta v.

National Investigating Agency (2014) SCC Online AP

192 ; Sanjay Chandra v. CBI AIR 2012 SC 830 : [2011] 13 SCR 309 ; Central Bureau of Investigation v. V. C. Shukla and Ors. (1998) 3 SCC 410 : [1998] 1 SCR 1153 ; Chenna Boyanna Krishna Yadav v. State of Maharashtra and Anr. (2007) 1 SCC 242 : [2006]

10 Suppl. SCR 381 ; State of U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21 : [2005] 3 Suppl. SCR 454 ; Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors. (1995) 1 SCC 574 : [1994] 4 Suppl. SCR 477 – referred to.