Isabella Mariam

A Division Bench of the High Court of Delhi comprising Justice Navin Chawla and Justice Shalinder Kaur dismissed an appeal for regular bail filed by an accused charged under multiple provisions of the Indian Penal Code (IPC) and Unlawful Activities (Prevention) Act (UAPA). The appellant sought to set aside an earlier order by the Additional Special Judge at Patiala House Courts, Delhi, which had denied his request for bail in a case investigated by the National Investigation Agency (NIA).

The court refused bail after finding that a prima facie case existed against the appellant. The judgment detailed allegations of the appellant's deep involvement in a conspiracy with proscribed terrorist organizations and separatist groups aiming to secede Jammu and Kashmir from India. The bench further recorded that the accused had already spent over seven years in custody, and while the trial was ongoing, the gravity of charges and the material on record did not support his release.

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The case pertains to a criminal conspiracy allegedly involving Pakistan-based terrorist organizations, intelligence agencies, and Hurriyat Conference leaders, aiming to wage war against India and promote secessionist activities in Jammu and Kashmir. The appellant, alleged to be a senior member of the Hurriyat Conference (APHC-G faction) and Chairman of Jammu and Kashmir National Front (JKNF), was arrested by the NIA on 24 July 2017 and charged in NIA case RC-10/2017/NIA/DLI.

According to the NIA, the accused conspired with Hafiz Muhammad Saeed, Yousuf Shah @ Salahuddin, and other banned groups such as Lashkar-e-Toiba (LeT) and Hizb-ul-Mujahideen (HM), among others. The appellant is accused of planning organized protests, bandhs, and attacks on security forces, promoting violent unrest post the killing of Burhan Wani, and orchestrating financial transactions via hawala and other illicit means.

The prosecution contended that a sting operation conducted by India Today revealed the appellant admitting to receiving substantial foreign funds to incite violence and chaos in the Kashmir Valley. The sting was supported by voice-matching forensic reports and testimonies from India Today employees. Additionally, videos and documents recovered allegedly place the appellant at pro-ISIS rallies and show his involvement in facilitating admissions for students in Pakistani medical colleges for commissions.

The NIA relied on statements from several protected witnesses who claimed to have attended meetings with the appellant where protest calendars were devised. They also testified about the logistics of organizing violent demonstrations and stone-pelting activities, supposedly directed by APHC leaders. Further, it was claimed that the appellant had corresponded with militants of banned groups and was thanked by commanders of Hizb-ul-Mujahideen for providing funds and support.

In his defence, the appellant contended that his participation in APHC and JKNF activities predates the banning of these organizations and that his involvement was not connected to any terror-related acts. He argued that recommending students for admission in Pakistan did not constitute an offence, particularly as such academic exchanges were allegedly endorsed under confidence-building measures supported by the Indian government.

Regarding the sting operation, the appellant claimed entrapment and submitted that portions of the video had been redacted, thereby misrepresenting the context. He also asserted that the use of the sting in the bail proceedings violated journalistic and ethical standards.

The appellant pointed out his prolonged incarceration of more than seven years, health ailments, and slow progress in the trial, noting that only a fraction of the prosecution witnesses had been examined so far. He relied on various precedents, including K.A. Najeeb and Vernon v. State of Maharashtra, asserting that continued detention violated his fundamental right to a speedy trial under Article 21 of the Constitution.

The court acknowledged the legal position that the right to bail, especially under UAPA, requires the court to be satisfied that no prima facie case exists against the accused under Sections 43D (5) and 43D (6) of the Act.

Referring to its recent decision in Alemla Jamir v. National Investigation Agency, the court stated: "The Right to life and personal liberty under Article 21 of the Constitution is paramount. If the Court finds that the rights of the accused have been infringed under Article 21 of the Constitution, it is not deprived of the power to grant Bail." However, the court also observed that "the accused shall not be released on bail if the allegations are prima facie true. The onus being stricter on the Appellant when the Charges have already been framed in a given case."

The bench examined the sting operation transcript (D-70) and noted that the appellant made detailed references to mobilizing unrest in exchange for funds. It held: "Appellant has also stated that stone pelting could be ordered from where he was sitting... It is also stated... that burning the houses of the politicians would create a strong political pressure." The court stated that at the bail stage, it is not required to state on the admissibility of such evidence but must consider its prima facie impact.

Regarding the pro-ISIS rally video, the court observed: "Whether the flags are Islamic or pertain to being of ISIS Flags, will be a matter of trial. The Court, at this stage, is not required to hold a detailed analysis of the evidence."

On the letterhead recoveries, the court remarked: "The Appellant will have to explain the possession of these documents which is again a matter of trial... these documents may have been in the possession of the Appellant but were uncovered/seized by the Investigation Agency only during the investigation of the present case."

Rejecting the plea of differential treatment, the bench distinguished the present case from Vernon, noting: "The letters recovered by the NIA were addressed to the Appellant and were directly recovered from his possession, unlike in Vernon."

The court accepted the NIA’s claim that funds were raised through commissions on Pakistani medical admissions. It observed: "The Protected Witnesses have deposed that commissions were earned by helping such Students to secure admissions and the commissions so earned were used to fund the terrorist activities."

The court further noted that the JKNF was officially declared an unlawful association in 2024, and the appellant’s role as its chairman formed part of the allegations. The court also referred to the Supreme Court’s decision in Zahoor Ahmad Shah Watali, which had earlier denied bail in a related matter and noted that it had not been set aside.

The judgment stated: “many of the Witnesses, including a confessional statement of one of the accused... have expressed apprehension of threat to life to them and their family members by the persons accused in the present case, including the Appellant.”

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The Division Bench concluded that the material available on record satisfied the statutory bar under Section 43D (5) of the UAPA. Accordingly, the court stated:

"We are satisfied that a prima facie case exists against the appellant... the appeal is dismissed and the order dated 03.12.2022 passed by the learned ASJ denying bail is upheld."

The court further directed that the trial be continued expeditiously, and medical needs of the appellant be addressed in accordance with applicable jail rules.

Advocates Representing the Parties

For the Appellant: Ms. Tara Narula, Ms. Tamanna Pankaj, and Mr. Anurudh Ramanathan

For the Respondent: Mr. Sidharth Luthra, Senior Advocate with Mr. Akshai Malik, Mr. Ayush Agarwal, Mr. Karl P Rustom Khan, Mr. Suhail Ahmed, Mr. Khawar Saleem, and Mr. Yatharth Sharma

Case Title: Nayeem Ahmad Khan v. National Investigation Agency

Neutral Citation: 2025: DHC:2472-DB

Case Number: CRL.A. 118/2023

Bench: Justice Navin Chawla, Justice Shalinder Kaur

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