J&K and Ladakh HC: ‘Prima Facie True’ Offences Under UAPA Justify Continued Custody: Rejects Bail Plea of Accused Alleged to Have Sheltered Foreign Terrorists Involved in Fatal Attack
Isabella Mariam
The High Court of Jammu & Kashmir and Ladakh, Division Bench comprising Chief Justice Tashi Rabstan and Justice M. A. Chowdhary, dismissed an appeal filed against the rejection of bail. The appeal had been preferred by Javaid Ahmad Bhat under Section 21 of the National Investigation Agency Act, 2008 read with Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. The Court upheld the order dated December 19, 2024, passed by the Additional Sessions Judge, Special Judge (Designated under NIA Act), Srinagar, denying bail to the appellant.
The appellant, Javaid Ahmad Bhat, a 41-year-old resident of Kohnkhan, Dalgate Srinagar, filed the appeal through his father, Abdul Majeed Bhat. The appeal challenged the rejection of bail in FIR No. 19 of 2022, registered at Police Station Khanyar. The FIR included allegations under Sections 13, 18, 19, and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAP Act).
The appellant contended that the trial court erred in applying the rigour of Section 43-D(5) of the UAP Act. It was submitted that there was no evidence on record apart from a self-incriminating statement recorded in police custody before an Executive Magistrate. According to the appellant, the foundational element of "knowledge" of the alleged terrorists’ identity was not corroborated by ocular, documentary, or electronic evidence. It was further asserted that this rendered the accusations insufficient to establish a prima facie case.
The appellant argued that he had been incarcerated for two years and that prolonged detention without trial amounted to pre-trial punishment. The appeal referred to Article 21 of the Constitution of India, asserting that continued denial of bail infringed upon the right to life and personal liberty. It was also submitted that out of 36 prosecution witnesses, only 10 had been examined so far, and none had deposed anything adverse against the appellant. Furthermore, it was brought to the Court's attention that co-accused Kaleem Zaffar, allegedly responsible for providing forged identification to the foreign nationals, had been granted bail.
The respondent, the Union Territory of Jammu and Kashmir, represented by Senior Additional Advocate General Mr. Mohsin S. Qadri and Ms. Maha Majeed, argued against the grant of bail. It was contended that the appellant had harboured two foreign terrorists in his hotel for approximately 12 days and subsequently in his residence for another 12 days. During their stay, the terrorists allegedly killed two CRPF personnel at Maisuma, Srinagar. The prosecution alleged that a fake Aadhar card was provided to one of the terrorists through an employee of the appellant and that the accused facilitated their concealment and logistics.
The prosecution submitted that the accused had been chargesheeted for offences under Sections 13, 18, 19, and 39 of the UAP Act, which fall under Chapters IV and VI of the statute. It was also stated that there was strong apprehension of the accused attempting to influence witnesses or abscond, considering the severity of the punishment involved. The trial court, according to the prosecution, had properly evaluated all materials and followed the legal standards applicable under the UAP Act.
The High Court noted that the appellant had not challenged the framing of charges by the NIA Court and that the trial against him had already commenced. The Division Bench stated: "To a pointed question to the learned senior counsel appearing for the appellant that whether the order framing charge has been assailed or not, the answer was replied in negative."
The Court observed that the trial court had provided detailed reasons while denying bail, taking into account the gravity of allegations, the materials on record, and statutory limitations under Section 43-D (5) of the UAP Act. It was noted: "The trial court has discussed all important aspects on the case and rejected the bail application moved by the appellant herein."
The High Court recorded that the allegations involved harbouring and providing logistical support to foreign terrorists who were involved in acts resulting in the killing of two security personnel. As per the prosecution case, the appellant was not only aware of the terrorists’ identity during their stay at his hotel and home but had also coordinated with other co-accused for their concealment and movement within the city. The Court further noted: "The appellant initially did not have knowledge of the two foreigners as terrorists, however, in due course of time, he learnt about it and was motivated by Bilal to work in league with him."
Regarding the statutory bar under Section 43-D(5) of the UAP Act, the Bench noted that the charges against the appellant attracted its provisions. Specifically, Section 18 relates to punishment for conspiracy to commit a terrorist act, Section 19 pertains to harbouring a terrorist, and Section 39 relates to providing support to a terrorist organization. These offences are covered under Chapters IV and VI of the UAP Act, which attract stringent conditions for bail. The Court stated:
"Having regard to the aforesaid provision contained in sub-section 5 of Section 43(D) of UAP Act, the contention raised by the learned counsel for the appellant-accused that the rigour of section is not attracted pales into insignificance as the appellant accused is stated to have been charged for the commission of offences punishable under Sections 18 and 19 falling under Chapter IV and Section 39 falling under Chapter VI of the UAP Act."
It was observed that the High Court, while exercising appellate jurisdiction in matters involving bail under special statutes like the UAP Act, could not conduct a detailed evaluation of evidence or assess its sufficiency. The Court remarked:
"The trial court while considering the application for grant of bail and so this appellate court while hearing the appeal against the rejection of bail cannot go into the intricate questions of whether the offences are made out or not as the evidence cannot be appreciated so minutely at the stage of consideration of bail, which is expected to be considered at the trial stage."
The Court reviewed the factual matrix derived from the chargesheet, including the initial detection of terrorists by police and CRPF at the appellant's residence, the retaliatory encounter that led to the terrorists' death, and the investigation linking their earlier movements to the hotel operated by the appellant. The investigation further pointed to communications and logistics facilitated by the appellant and other co-accused at the behest of a Pakistan-based handler affiliated with a proscribed terrorist organization.
The judgment also outlined the legal position that the presumption of innocence continues to operate but is subject to statutory limitations in cases involving grave offences under special laws like the UAP Act. The Court concluded that the appellant’s case did not satisfy the criteria for granting bail under Section 43-D (5).
The Court found no error in the NIA Court's decision to deny bail and accordingly dismissed the appeal. The order concluded:
"This court, after hearing both the sides, perusal of chargesheet and other incriminating material, while exercising appellate jurisdiction, does not find any illegality or perversity in the impugned order, which is, thus, upheld, as a result the appeal fails and is, accordingly dismissed."
Advocates Representing the Parties:
For the Petitioner: Mr. Azhar-ul-Amin, Advocate
For the Respondent: Mr. Mohsin S. Qadri, Senior Additional Advocate General with Ms. Maha Majeed, Assisting Counsel
Case Title: Javaid Ahmad Bhat vs. Union Territory of Jammu and Kashmir
Case Number: CrlA(D) No. 1/2025
Bench: Chief Justice Tashi Rabstan and Justice M. A. Chowdhary
[Read/Download order]
