Isabella Mariam

The High Court of Jammu & Kashmir and Ladakh, Division Bench of Justices Sanjeev Kumar and Sanjay Parihar held that the trial court’s observation that it was “difficult to frame an opinion at this stage” could not justify denial of bail under the Unlawful Activities (Prevention) Act, 1967. The Court found that such an observation reflected non-performance of the statutory duty to form a satisfaction under Section 43-D(5) of the Act. Setting aside the order that had refused bail to an accused alleged to be associated with a proscribed organisation and involved in terror funding, the Bench remitted the matter for fresh consideration in accordance with law.

The appeal was filed under Section 21 of the National Investigation Agency Act, 2008, challenging the order dated 31 December 2024 passed by the Additional Sessions Judge, Poonch (Special Judge, Rajouri-Poonch under the NIA Act). The trial court had declined to grant bail to the appellant in connection with FIR No. 305/2021 registered for offences under Sections 17, 18, 20, and 40 of the Unlawful Activities (Prevention) Act, 1967, read with Sections 120-B, 121, 122, and 123 of the Indian Penal Code, 1860.

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The appellant, who has been in custody since 9 August 2021, challenged the impugned order on the ground that the trial court erred in declining bail despite the absence of reasonable grounds to believe the accusations were true. It was argued that the trial court failed to properly assess the probative value of the material collected during investigation and evidence produced at trial, and that there was no substantive evidence linking the appellant to the alleged offences.

The prosecution, opposing the appeal, submitted that the appellant was an active member of the Jammu & Kashmir Ghaznavi Force (JKGF), a proscribed terrorist organisation under the UAPA. It was alleged that the appellant, along with co-accused persons, raised funds to sustain terrorist activities and recruit local youth for the organisation.

During investigation, the police recovered ₹19,76,000 in Indian currency and several JKGF posters based on disclosure statements of co-accused individuals. The appellant was alleged to have received funds and materials for recruitment and propaganda. However, the investigating agency did not find sufficient material to substantiate offences under Sections 19 and 21 of the UAPA or Sections 212 and 216 of the IPC.

The Court observed that the trial court “failed to properly appreciate the scope and application of Section 43-D(5) of UAPA.” It recorded that the provision “lays down a statutory embargo against the grant of bail if the Court believes that there are reasonable grounds for believing that the accusation against the accused is prima facie true.” The Bench noted that by recording that it was “difficult to frame an opinion at this stage,” the trial court had “virtually abdicated its statutory duty to arrive at a satisfaction as contemplated under Section 43-D(5), thereby rendering its reasoning unsustainable in law.”

Citing National Investigation Agency vs. Zahoor Ahmad Shah Watali (2019 5 SCC 1), the Court observed: “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.”

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Referring to Union of India vs. Shri Shiv Shanker Kesari (2007 7 SCC 798), the Court stated: “The expression ‘reasonable grounds’ means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged.”

The Bench recorded that since the appellant had sought bail on the ground that the available material was insufficient to even raise a suspicion of involvement, “it was incumbent upon the trial court to have framed an opinion on whether the grounds so urged by the appellant make out a case for bail or not.” The Court further stated that the trial court had erred “in not appreciating the import and scope of Section 43-D(5) of the UAPA in its correct perspective.”

The Court: “Without entering into the merits of the accusations or examining whether the appellant has carved out a strong prima facie case in his favour, we consider it appropriate to remit the matter back to the trial court, which shall hear the appellant as well as the prosecution afresh and thereafter pass a reasoned order strictly in accordance with law, keeping in view the mandate of Section 43-D(5) of the UAPA.” The parties were directed to appear before the trial court on 17 November 2025 for further proceedings.

Advocates Representing the Parties
For the Appellant: Mr. I. H. Bhat, Advocate
For the Respondent: Mrs. Monika Kohli, Senior Additional Advocate General

Case Title: Farooq Ahmed v. Union Territory of Jammu & Kashmir
Case Number: Crl A (D) No. 02/2025
Bench: Justice Sanjeev Kumar and Justice Sanjay Parihar