National Security Must Not Be Compromised | Delhi High Court Refuses Bail To PFI Member Accused Under UAPA | Evidence Suggests Conspiracy To Undermine India’s Unity
Sanchayita Lahkar
The High Court of Delhi Division Bench of Justice Navin Chawla and Justice Shalinder Kaur dismissed a criminal appeal challenging the rejection of bail under the Unlawful Activities (Prevention) Act, 1967 (UA(P) Act). The court held that there exist reasonable grounds to believe that the accusations against the appellant are prima facie true. Consequently, the appellant failed to discharge the burden required for the grant of regular bail. The Division Bench affirmed the lower court's order and refused to interfere with the decision, stating that the materials on record established the appellant's role in a broader conspiracy.
The appeal arose from a criminal prosecution initiated under RC-10/2017/NIA/DLI registered by the National Investigation Agency (NIA) under various provisions of the Indian Penal Code (IPC) and the UA(P) Act. The central allegation involved a conspiracy to wage war against the Union of India by orchestrating violent protests and secessionist activities in the erstwhile State of Jammu and Kashmir.
The prosecution alleged that the appellant was a key figure in the conspiracy. The initial chargesheet, filed on 18.01.2018, named 12 accused persons. The appellant was arrested on 04.06.2019 and subsequently arrayed in a second supplementary chargesheet filed on 04.10.2019, along with other co-accused. The appellant was charged under Sections 120B, 121, 121A, and 124A IPC read with Sections 13, 16, 17, 18, 20, 38, 39, and 40 of the UA(P) Act.
The NIA alleged that the appellant had long-standing ties to secessionist organizations, including the JKDFP, of which he was Chairman, and had connections with foreign-based handlers. He was accused of receiving funds through hawala networks and LoC trade to incite violence and support militant activities. The charges included allegations of glorifying slain militants, delivering inflammatory speeches, and organizing mass protests aimed at destabilizing the region.
The appellant moved a bail application before the Trial Court, which was dismissed on 07.07.2023. Aggrieved, he approached the High Court in appeal.
The appellant, represented by Senior Advocate Mr. Colin Gonsalves, submitted that the second supplementary chargesheet was the first to name him. He argued that the evidence relied upon—particularly the videos and protected witness statements—were vague, old, and inadmissible under Section 65B of the Indian Evidence Act. The defence also argued that the appellant had never been convicted in any prior FIRs despite facing 24 cases.
Counsel further submitted that the alleged videos were from 1996 or earlier and had already been used in other FIRs, thereby lacking independent probative value in the present case. It was argued that these videos merely depicted peaceful assemblies, and the speaker’s identity could not be discerned. The defence questioned the authenticity and source of these digital files.
The defence also claimed that documents cited by the prosecution, including an unsigned loose sheet (D132(a)/23) and protected witness statements (AW-62, AW-81), lacked specific incriminatory content linking the appellant directly to any terrorist act or funding route. Mr. Gonsalves stated that during the relevant periods, the appellant was already incarcerated, making it improbable for him to participate in the alleged activities.
It was also pointed out that the JKDFP, chaired by the appellant, was not declared an unlawful association until 2023—several years after the appellant’s arrest. Additionally, the appellant had engaged with senior political leaders and had even participated in dialogues for peaceful resolution, undermining the prosecution’s claim of him being a secessionist.
The NIA, represented by Senior Advocate Mr. Sidharth Luthra, opposed the appeal, citing Section 43D (5) of the UA(P) Act, which bars bail if the court finds the accusations to be prima facie true. The prosecution relied heavily on protected witness testimonies, emails allegedly sent to the appellant from Pakistani handlers, phone call data records, and digital material obtained during investigation.
According to the prosecution, the appellant’s presence at Hurriyat meetings, receipt of funds from Pakistan, and association with individuals like Zahoor Ahmad Shah Watali, who allegedly acted as a financial conduit, corroborated his involvement. It was submitted that the appellant received Rs. 1.10 crore from Pakistan and Rs. 10 lakhs from Watali, allegedly for distribution among stone pelters.
The NIA also stated that the CD containing inflammatory speeches and the emails recovered from the appellant’s account showed direct communication with handlers abroad, including updates on militant activity and financial distributions.
The trial court had earlier framed charges on 16.03.2022 under multiple provisions of IPC and UA(P) Act. The NIA asserted that, contrary to the defence’s claim of delay, the trial was proceeding with regular examination of witnesses. The agency also submitted a tabulated list showing that delays were not attributable to the prosecution.
In response to the house arrest plea, the NIA argued that it would be inappropriate at a stage when protected witnesses were yet to testify.
"The Prosecution has relied upon several videos, incriminating documents, and the statement of numerous witnesses, including Protected Witnesses, to implicate the Appellant for instigating the general public to perpetrate violence in the J&K, thereby waging war against the Union of India in furtherance of the alleged Conspiracy."
The bench rejected the argument that videos could not be relied upon due to their age or lack of certification under Section 65B. "This is not a stage to consider the admissibility of the evidence... the Certificate would be produced when the said electronic record is sought to be proved..."
The court recorded that the speech in question involved alleged glorification of slain militants and provocative rhetoric. "The right to freedom of speech... cannot be misused under the garb of carrying out rallies wherein, a person uses inflammatory speeches or instigates the public to commit unlawful activities, detrimental to the interest and integrity of the country."
The bench also observed that the evidence included email communication from Pakistani nationals, stating, "One of these emails contained the details of funds in USD and INR distributed to various individuals, which is corroborated by the statement of Protected Witness John."
Further, "Document D-132(a)/23... reflects the exchange of funds between several Hurriyat leaders and the Pakistan High Commission... It also shows transactions with the Appellant."
The court noted that this document was also discussed by the Supreme Court in Zahoor Ahmad Shah Watali’s bail rejection, stating: "There are reasonable grounds to believe that the accusations made against the Respondent are prima facie true."
On the charge of unlawful association, the court stated: "In case the Appellant was involved in unlawful activities, the same cannot be termed as lawful merely because the organization he was heading was at the time, not declared an unlawful association."
Regarding the appeal's reliance on prior judgments like K.A. Najeeb and Vernon, the court recorded: "The decisions relied upon... are distinguishable on facts... the Appellant is involved in 24 FIRs of a similar nature."
On the plea of delay: "Though the Appellant has been in custody for five years... there is no delay on the part of the Prosecution... the Prosecution will drop the witnesses who are not relevant so that the trial may proceed at a faster pace."
"It is well-settled law that at the stage of Bail the court is concerned with the existence of the material against the accused and not as to whether those materials are credible or not."
The court stated that the appellant failed to discharge the burden for the grant of regular bail. "There are reasonable grounds to believe that the accusations against the Appellant appear prima facie to be true."
"Accordingly, in view of the foregoing discussion, the present Appeal is dismissed."
The bench denied the alternative prayer seeking house arrest. "There is no question of entertaining the alternative prayer made by the Appellant seeking House Arrest, in view of the serious allegations against the Appellant as well as the sensitivity and gravity of the issues involved."
The court stated that the appeal for bail could not be allowed due to the nature of the accusations and the stage of the trial. "Consequently, there is no question of entertaining the alternative prayer..."
"It is made clear that the observations made hereinabove shall not tantamount to be an expression on the merits of the Appellant’s case pending before the learned Trial Court or to be read as an expression of opinion on the merits of the pending Appeal on Charge before this Court."
CRL.M.A. 875/2025 has been filed under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) on behalf of the Appellant, seeking a direction for the supply of his medical records.
Pursuant to the Order dated 27.01.2025, the medical records of the Appellant, as received from the Office of the Senior Medical Officer, Central Jail, Tihar, New Delhi, have already been placed on record. A copy of the same has also been furnished to the learned Senior Counsel appearing for the Appellant.
In view of the aforesaid, the application is rendered infructuous and is accordingly dismissed.
Advocates Representing the Parties:
For the Petitioner: Mr. Colin Gonsalves, Senior Advocate with Mr. Kamran Khwaja, Advocate
For the Respondents: Mr. Sidharth Luthra, Senior Advocate with Mr. Akshai Malik, SPP/NIA, Mr. Ayush Agarwal, Mr. Khawar Saleem, Mr. K.P. Rustom Khan, Advocates, Mr. B.B. Pathak, DSP NIA
Case Title: Shabir Ahmed Shah v. National Investigation Agency
Neutral Citation: 2025: DHC:4966-DB
Case Number: CRL.A. 600/2023
Bench: Justice Navin Chawla, Justice Shalinder Kaur
[Read/Download order]
