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Case title: Jamsheed Zahoor Paul V. State of NCT of Delhi.

Case no: CRL.A. 51/2024.

Dated on: 24th April, 2024.

Quorum: Hon’ble Mr Justice Suresh Kumar Kait and Hon’ble Mr. Justice Manoj Jain.

Facts of the case:

Special Cell (New Delhi Range), Lodhi Colony received information that two persons i.e. Parvaiz Rashid Lone and Jamsheed Zahoor Paul (appellant herein) were radicalized youths of Jammu & Kashmir, having allegiance to banned terrorist organization ISIS/SI/DAESH. As per intelligence inputs, they had procured arms and ammunition from UP for their cadres for executing some terrorist act in Jammu & Kashmir and would come at Netaji Subhash Park, near Lal Quila (Red Fort), Delhi on 07.09.2018 to proceed to Kashmir. Both the aforesaid named suspects were found moving towards Lal Qila. Search of the appellant yielded recovery of one pistol, containing live cartridges. These were seized. During investigation, both the accused divulged that they were propagating ideology of terrorist outfit ISIS in India and were in touch with another ISIS militant, namely, Abdullah Basith. Though, initially, FIR had been registered for commission of offence under Section 25 Arms Act, after detailed investigation and on the basis of the incriminating material collected during investigation, both the accused were accordingly charge-sheeted for commission of offences under Section 25 Arms Act and for Sections 18 & 20 of UAPA. Appellant had earlier moved one application seeking bail which was dismissed, and it was withdrawn on 06.06.2019. He moved another bail application which, too, was dismissed on 01.05.2020, feeling aggrieved, he preferred Criminal Appeal 345/2021 which was, however, not pressed and resultantly, the same was dismissed by this court on 31.01.2022. It was thereafter only that the appellant moved another bail application which also did not find favor and was dismissed by the learned trial court vide impugned Order dated 16.11.2023. Such, Order is under challenge now.

Contentions of the appellant:

There is no material to show that appellant had indulged into any unlawful or terrorist act. The entire case of prosecution is dependent upon the disclosure statements of the accused persons and these statements have no evidentiary value, being inadmissible in law. There is nothing to indicate that any message or BBM chat retrieved from the electronic device of the appellant had any potential to indicate that he was in contact with any terrorist. Appellant could not be branded as “terrorist‟ or a “person involved in terrorist act” merely on the basis of the recovery of a pistol and, therefore, invocation of draconian provision of UAPA is totally mis-founded and unwarranted. There is nothing to indicate that the appellant was a member of ISIS or their purported fronts. Mere framing of charge does not create any embargo against grant of bail as the consideration for framing the charge is different from the one required for grant of bail. Appellant has undergone incarceration for more than five and half years and the trial are not likely to conclude any time soon and, therefore, his fundamental right as enshrined under Article 21 of the Constitution of India has been seriously jeopardized, entitling him to be released on bail on that count alone.

Contention of the respondent:

There are serious allegations against the appellant and the learned Trial Court has already come to a definite conclusion that there is a prima facie case against him for offences under Section 18 & 20 UAPA. According to the respondents, there are following clear-cut allegations and if all these allegations are read conjunctively, it would clearly reveal his complicity qua offences under Section 18 & 20 UAPA. One loaded pistol was recovered possession and the fact he had purchased the same from four juveniles was found to be correct. Appellant was found in possession of two electronic devices, and it was found that he was found using Black Berry Messenger for communicating with his associates. Appellant and his co-accused had procured illicit arms and had come to Delhi together and were to leave for Kashmir together in furtherance of their conspiracy.

Legal Provisions:

Section 18 & 20 of UAPA- Punishment for Organizing Terrorist Camps
Punishment for Being a Member of a Terrorist Gang or Organization
Section 43D(5) of UAPA- makes it virtually hard to grant a bail.
Section 10 of Evidence Act- pertains to the admissibility of evidence in cases involving conspiracy.



Issue:

• Whether in view of the fact that charges have already been framed and such charges have not been challenged by the appellant, whether bail plea can be considered and whether the court can go on to opine that there are no reasonable grounds for believing the accusation to be prima facie true?
  
  
• What should be the level of scrutiny for believing the same? Whether the appellant has been able to show that there is no prima facie case against him?
• Whether despite such statutory bar being in place and when prima facie is found to be made out, bail can still be granted in order to safeguard his fundamental rights.

Court analysis and Judgement:

The Hon’ble Supreme Court in Gurwinder Singh Vs. State of Punjab & Anr. 2024 SCC On-Line SC 109, the impact of Section 43D (5) of UAPA was delineated and it was observed that the conventional idea in bail jurisprudence – bail is the rule and jail is the exception – does not find any place in UAPA. It further observed that exercise of general power to grant bail under UAPA is severely restrictive in scope. In National Investigation Agency v. Zahoor Ahmad Shah Watali: 2019 SCC On-Line SC 461 elaborate guidelines was laid about the approach that the Courts must partake in, while considering bail application under UAPA. In context of the meaning attributable to “prima facie true‟, it observed that material collected by the investigating agency, on the face of it, must show the complicity of the accused in relation to the offence and must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. It also observed that at the stage of giving reasons for grant or rejection of bail, the elaborate examination or dissection of evidence was not required and the Court is merely expected to record a finding on the basis of broad probabilities. Thus, once charges are framed, it can be easily assumed that there is a very strong suspicion against the accused. Therefore, in such a situation, the task of any such accused becomes much more onerous and challenging as it is never going to be easy for anyone to satisfy that the same set of material, which compelled the court to frame charges on the basis of strong prima facie case, would persuade it to hold to the contrary, by declaring that such accusation was not prima facie true. Be that as it may, there can never be any restriction or embargo on moving application seeking bail. Such unfettered right remains available as long as the proceedings are alive.  As per allegations appearing on record and facts and circumstances placed before the court, the appellant was continuously in touch with his co-accused, travelling with him and arranging weapons. He was in touch with militants as well and met one of them in Delhi. Conspiracy has to be inferred by connecting dots from bunch of circumstances. Moreover, Section 10 of Evidence Act cannot be kept aside which visualizes such type of situation and makes the actions and the statements of co- conspirator to be relevant as against the others. Appellant does not seem to be in any position to wriggle out of the statutory bar contained in proviso of Section 43D (5) of UAPA as there are clear-cut allegations which go on to indicate that accusation against him is prima facie true.  The appellant was in touch with cadres of ISIS which is sufficient to give insight of his culpable mind. In Arup Bhuyan v. State of Assam, (2023) 8 SCC 745, it has been observed that mere membership of banned organization is also sufficient to incriminate, without there being any overt act. Learned counsel for the appellant has prayed that accused has already undergone incarceration for more than 5 ½ years and trial is not likely to conclude in near future. It is argued there is no likelihood of case getting disposed of in near future and, therefore, on the strength of Union of India v. K.A. Najeeb, (2021) 3 SCC 713, it is prayed that despite the aforesaid statutory bar, Constitution Court can always grant bail so that the right of speedy trial and that of life and liberty do not stand defeated.  However, in the case in hand, the maximum sentence provided under Section 18 & 20 UAPA is imprisonment for life and there is nothing which may indicate that prosecution is acting in a manner which is detrimental to his fundamental rights. The learned trial court has already observed that it, being already conscious about such fundamental right of the accused, was taking up the matter diligently by giving shortest possible dates. Therefore, there is no further requirement of passing any further direction in this regard. Resultantly, finding no substance in the appeal, we hereby dismiss the same.

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Judgement reviewed by- Parvathy P.V.

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