Case: NATIONAL INVESTIGATION AGENCY Vs. ZAHOOR AHMAD SHAH WATALI

3. The Designated Court opined that there are serious allegations against the respondent Zahoor Ahmad Shah Watali (Accused No.10) of being involved in unlawful acts and terror funding in conspiracy with other accused persons; he had acted as a conduit for transfer of funds received from terrorist Accused No.1 Hafiz Muhammad Saeed, ISI, Pakistan High Commission, New Delhi and also from a source in Dubai, to Hurriyat leaders/secessionists/terrorists; and had helped them in waging war against the Government of India by repeated attacks on security forces and Government establishments and by damaging public property including by burning schools etc. It then noted that the accusation against the respondent (Accused No.10) was of being a part of a larger conspiracy to systematically upturn the establishment to cause secession of J & K from the Union of India. Keeping in mind the special provisions in Section 43D of the 1967 Act and the exposition in Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra and Ors.,(1994) 4 SCC 602 Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijjaya and Ors. (1990) 4 SCC 76 , Manohar Lal Sharma Vs. Union of India (2017) 11 SCC 783 and Jayanta Kumar Ghosh and Ors. Vs. State of Assam and Anr. (2010) 6 Gauhati Law Reports 727 , it proceeded to analyse the material on record and observedLet me now see whether on the basis of the material on record, allegations against the accused are prima facie made out or not. Mindful of the fact that this is not the stage to examine and analyze the evidence placed on record in detail, let me refer to the same. Allegation against the accused that certain businesses of his, were just a front/ sham for routing of funds received from abroad/ terrorist A¬ 1/ High Commission, Pakistan/ Dubai/other sources and that there were, unaccounted financial transactions, is prima facie borne out from statement of the witnesses PW1, PW28 and PW29 and documents including D¬202 & D¬214. It has also come in the statements of PW38 & PW39, who prepared balance sheets offirms/companies namely Trison Farms and Constructions Pvt. Limited, M/s Trison International, M/s Yasir Enterprises, M/s 3Y, M/s Kashmir Veneer Industries & M/s Three Star, that the accused never produced any supporting documents with respect to remittances received from NZ¬International Dubai¬ FZC, owned by him; and that he did not even inform about the actual execution of business despite asking of PW39. The fact that the balance sheets of M/s Trison International, M/s 3Y were forcefully got signed from the protected witness PW43 without providing him any document, has come in his statement. It has also come in the statement of PW44 that the audit report of the aforesaid companies were got signed from him without producing books forin paragraph 7.8 to 7.10 the CourtThe fact that the accused received money from abroad /A-1, chief of proscribed (terrorist) organization, HCP (High Commission, Pakistan) and others and was passing on the said funds to Hurriyat leaders, is prima facie borne out from D¬152 read with statement of PW29 and D¬154Report), as per which the signatures of the accused on D-152 were compared with his admitted handwriting and were verified and found to be similar. In view of the same, the Ld. Defenceargument that the said document/ D-152 cannot be looked into at all even to form prima facie opinion, cannot be accepted. Thus, the judgment ofSupreme court in Manohar LalCase (Supra), relied upon Ld. Defence counsel is also of no assistance to the accused.7.9 Further, the association/proximity of Altaf Ahmad Shah @ Fantoosh (A-4), Farooq Ahmad Dar @ Bitta Karate (A¬6) with accused, is also prima facie borne out from the statement of protected witness PW48.links with people who have role in governance of Pakistan and with Hurriyat leaders has also prima facie come on record vide statement of PW52, documents D¬3, D-4 (e) etc. and other material on record.7.10 In view of the above facts and circumstances, the statements of witnesses/material/documents and other material placed on record by NIA, offences as alleged against the accused are prima facie made out. Therefore, in view of the bar under proviso to Section 43D(5) UA(P) Act, theprayer for bail cannot be1.1 Ld. Special PP, NIA also submitted that the applicant/accused is an influential person/ business man and has a great clout in the valley, as has come in the statement of PW48. All the witnesses are known to the applicant/ accused. There is every likelihood of the applicant/accused influencing/ intimidating witnesses/ tempering with evidence, in the event of his release even on interim bail.The respondent had also prayed for grant of bail on health grounds, which plea was duly considered and rejected in the followingI have duly considered the submissions made by both the sides. Perusal of the record reveals that as and when requested by the accused, he was provided medical treatment from time to time. Pursuant to the directions of this court, the accused was taken to the premier medical institute of India/AIIMS for necessary medical examination. This was besides being provided appropriate medical attention to Jail hospital and in¬patient treatment at Dr. RML hospital from 01.09.2017 to 05.09.2017. As per medical status report dated 26.09.2017, the accused was extensively evaluated at Dr. RML Hospital for chest pain and cause of cardiac disease was ruled out. Even subsequently, the accused was reviewed at Central Jail Hospital and detailed blood investigation was carried out and medication was provided. On his complaint of anxiety, severe low back pain and bleeding per-rectum on 24.09.2017, the accused was admitted to M.I. Room, Dispensary, Central Jail No. 8/9 from 24.09.2017 to 26.09.2017. Vide subsequent report dated 11.10.2017, Medical Officer I/c, Central Jail Tihar, Dispensary 8/9, reported that the accused was getting treatement under regular follow up of Medicine Specialist, jail visiting SR surgery. It may further be mentioned that accused was constantly reviewed at short intervals and was provided all advised medication.8.3 It has also come in order sheet dated 03.01.2018 that as per medical report of accused received from AIIMS New Delhi, the accused was evaluated in seven speciality/ superspeciality OPDs but was not found to be suffering from any specific ailment except for his known history of Type 2 diabetes mellitus, hypertension & hypothyroidism for which requisite medications to be taken regularly, were already prescribed. The Colonoscopy test of the accused was scheduled for 15.01.2018. Medical status report of accused Zahoor Ahmad Shah Watali received from the Medical Officer Incharge, Central Jail Dispensary, Tihar, New Delhi, mentioned that the accused despite being counseled several times to continue his treatment at AIIMS Hospital, refused to visit AIIMS for treatment/further management.9.0 From the above, it is evident that the applicant/ accused is being provided necessary medical attention/ treatment as and when prayed for, not only inside the jail but also at AIIMS and other Govt. Hospitals. Thus, taking into account the law as laid down in Redual Hussaincase (Supra), no ground for grant of interim bail on health grounds is made out.9.1 However, Jail Superintendent is directed to provide proper medical care and treatment to the applicant/ accused, as requested/ called for.The respondent carried the matter before the High Court by way of Criminal Appeal No.768 of 2018 under Section 21(1) read with Section 21(4) of the National Investigation Agency Act, 2008. The High Court noticed that after filing of the charge¬sheet, accused Nos.11 and 12 had been granted regular bail, while accused Nos.1 and 2 had not been arrested. Rest of the accused, including the respondent (Accused No.10), were in judicial custody. The respondent (Accused No.10) was arrested on 17 th August, 2017 and had been in judicial custody since then. His age, as indicated in the charge¬sheet, was about 70 years. The High Court then adverted to paragraph 17.6.5 onwards of the charge¬sheet [report under Section 173 of the Code of Criminal Procedure (Cr.P.C.)] and summarized the allegations against respondent (Accused No.10) asSpecific to the Appellant are the allegations made in Paragraph 17.6.5 of the charge¬sheet which is subtitledThis being the principal allegation against the Appellant, requires to be summarized as under:(i) The Appellant is one of the conduits to bring money from off¬shore locations of India to fuel anti-India activities in Jammu and Kashmir. Reference is again made to the same incriminating document i.e. D No.132 (a).(ii) A¬10 was bringing money from off¬shore locations to Indialayering it through the scores of firms and companies he hasReference is made to an NRE account of the Appellant at the J&K Bank where, from 2011 till 2013, he is said to have received Rs.93, 87, 639. 31 from ‘unknownThe Appellant was showing foreign remittances under ‘otherin his proprietorship M/s Trison International, Srinagar. Foreign remittances in the sum of Rs.2,26,87,639.31 were received by the Appellant in different accounts from 2011 to 2016. It is repeated that Rs.93,87,639.31 was received in his NRE account from 2011 to 2013.(iv) It is stated that Rs.14 lacs were remitted in the account of a medical college in Jammu through NEFT on 9th April, 2013 against the fees deposited for his son (who incidentally is a medical doctor and through whom the present appeal has been filed). It is stated that Rs.60 lacs were remitted in the current account of the Appellant in J&K Bank. Rs.5 lacs were remitted in the account of M/s Trison Farms and Constructions Pvt. LimitedIt is stated that all these foreign remittances(v) On 7th November, 2014, one Nawal Kishore Kapoor (who initially was a witness but has, since the filing of the charge¬ sheet, been arrayed as an accused himself), a resident of United Arab Emiratesentered into an agreement with TFCPL, whose Managing Directoris the Appellant to take land measuring 20 kanals in Budgam in J&K on lease in consideration of a sum of Rs.6 crores as premium and Rs.1,000/¬ annual rent for an initial period of 40 years which could be extended through mutual agreement. In the said agreement, TFCPL was declared as the absolute owner of the land. Mr. Kapoor remitted a total sum of Rs.5.579 crores in 22 instalments between 2013 and 2016 to the Appellant.(vi) During investigation it was revealed that no land exists in the name of TFCPL as per the balance sheet of that company. Further, it was ascertained that Rs.5,57,90,000 was mobilized by Mr. Kapoor from unknown sources and remitted to Appellant to lease a piece of land which does not even exist in the name of TFCPL and therefore the agreement itself lacks legal sanctity. According to the NIA, thisthat the said agreement was acreated by the Appellantbring foreign remittances from unknown sources to.(vii) The Chartered Accountantwho signed the audited balance sheet of M/s Trison International., TFCPL and M/s Yasir Enterprises for various years between 2013¬14 and 2015¬16so without seeing any supportingAccording to the NIA, the balance sheets of the above entities/companies were sent to the CA by Mustaq Mir, Cost Accountant and Shabir Mir, CA from Wizkid Office, Srinagar through email and he was asked to sign on them in Delhi without showing any documents. According to the NIA, this also clearly showed that the Appellant was remitting money received from unknown sources to India.(viii) TFCPL raised an unsecured loan of Rs.2,65,55,532/¬ from the Directors of the company, i.e. the Appellant, his wife, and his three sons in the Financial Year2010¬11 in the form of both cash and cheque and this was used to repay the secured loan of Rs.2,94,53,353/- in the books of J&K Bank. The source of money with the Directors could not be explained satisfactorily by the Appellant.(ix) The seizure from the house of the Appellant of a list of ISI officials and a letter from Tariq Shafi, proprietor of Al Shafi Group addressed to the PHC recommending grant of visa to the Appellanthis proximity with Pakistani. It is stated that the name of Tariq Shafi figures in the document of foreign contributions seized from the house of the Appellant?s cashier¬cum¬accountant Ghulam Mohd. Bhatt.The High Court also adverted to the accusations against respondent (Accused No.10) in paragraphs 17.9 and 17.10 of the charge-sheet, to the effect that CDRs relied upon by the prosecution revealed that the accused persons were in contacteach other, with some militants/OGWs (Over Ground Workers) and the hawalai.e. the respondent (Accused No.10) and the other accused, that the respondent (Accused No.10) was in constant contact on telephone with A¬3, A¬4, A¬ 5 and A¬6 and that A¬3 to A-12 were in contact with each other, either directly or indirectly. In paragraph 17.10 of the charge-sheet, it is stated that respondent (Accused No.10) was a known hawala dealer and financer and a number of cases were registered against him, which were being investigated by the sister investigating agencies. The High Court, however, noted that the charge-sheet neither gave details of the other cases registered and being investigated against the respondent nor revealed the details thereof to the Court. The High Court also noted accusations against the respondent (Accused No.10) in paragraphs 18.10, 18.13 and 18.14, revealing the linkage between A-3 to A¬10 and indicating clear meeting of minds of the said accused in hatching the conspiracy in support of A¬1 and A¬2 and other Hurriyat leaders and other terrorist organizations in J & K.7. After noting the relevant facts emanating from the charge¬sheet filed against the respondent, the High Court adverted to the conclusions recorded by the Trial Court. It then proceeded to analyse the relevant provisions of the 1967 Act and the principle underlying the decisions of this Court concerning the Terrorist and Disruptive Activities (Prevention) Act, 1985 (and the Maharashtra Control of Organised Crime Act, 1999 (in light of the exposition in Hitendra Vishnu Thakur (supra) and Niranjan Singh Karam Singh Punjabi (supra), and posed a question to itself as to whether the material gathered by the NIA in the present case could have enabled the Trial Court to come to the conclusion that there were reasonable grounds for believing that the accusation against the respondent (Accused No.10) was prima facie true. After so noting, it observed that the statements of the proposed/prospective witnesses recorded under Section 161 Cr.P.C. did not constitute admissible evidence. Those could only be used to confront the witnesses who would subsequently appear at the trial. It noted that this crucial aspect had to be kept in view while referring to such statements at that stage. The High Court then noted that the Investigating Agency had recorded the statements of the witnesses under Section 164 of Cr.P.C. but had kept the same in a sealed cover enclosed to the charge¬sheet. The High Court noted that the statements at serial Nos.277 and 278 were of protected witnessesrespectively, and those at serial Nos.279 to 284 were described as statements of protected witnessesThese statements were kept in a sealed cover and not supplied to the respondent (Accused No.10). Further, these statements were presumably not perused by the Designated Court. Notably, the application moved by the Investigating Agency under Section 44 of the 1967 Act to accord protection to those witnesses remained pending before the Designated Court. Here, it may be mentioned that during the pendency of the present appeal before this Court, the said application has been decided in favour of the Investigating Agency vide order dated 11 th January, 2019 passed by the Designated Court. We shall refer to this a little later.8. Reverting to the judgment of the High Court, it opined that the said statements under Section 164 of Cr.P.C. could not be considered, as copies thereof had not been provided to the respondent. It then proceeded to hold that Section 44 of the 1967 Act merely permitted the identity and address of such witnesses to be kept secret by the Court. It held that it was not possible to read Section 17 of the NIA or Section 44 of the 1967 Act as an exception to Section 207 read with Section 173 Cr.P.C., which mandates that the accused shall be supplied copies of the police report and other documents relied upon by the prosecution in the charge¬sheet, without delay and free of cost. It then proceeded to analyse the interplay between Sections 207, 161, 164 and 173 of Cr.P.C. and opined that even in respect of statements recorded under Section 161 of Cr.P.C., there was no wholesale exclusion of the entire document from being provided to the accused. What was permitted was the redaction of such portion of the document which could reveal the identity and address of the maker of the statement. Be it noted that the High Court did not think it necessary to direct the Designated Court to first decide the application filed by the Investigating Agency under Section 44 of the 1967 Act before proceeding with the hearing of the appeal filed by the respondent. Instead, the High Court preferred to exclude those statements kept in a sealed cover from consideration. The High Court did not advert to Section 48 of the 1967 Act, which makes it amply clear that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than the said Act etc. The High Court then went on to observe that the charge¬sheet made no reference to the statements recorded under Section 164 of the witnesses in respect of whom protection was sought by the Investigating Agency. The High Court distinguished the decision of this Court in K. Veeraswami Vs. Union of India and Ors.(1991) 3 SCC 655 pressed into service by the Investigating Agency to buttress its submission that it is not necessary that the charge¬sheet must contain detailed analysis of the evidence, and that the Trial Court ought to consider not only the narration in the charge¬ sheet but also all documents accompanying thereto. The High Court, however, opined that in the context of the relatively high burden placed on the accused in terms of the proviso to Section 43D(5) of the 1967 Act, of having to demonstrate that the prosecution had not been able to show that there existed reasonable grounds to show that the accusation against him was prima facie true, the absence of any reference in the charge¬sheet to the statements under Section 164 Cr.P.C., which are of a higher probative value than the statements under Section 161 Cr.P.C., was significant. It thus observed that such statements could not be kept back from the accused. Resultantly, the statements of the protected witnesses recorded under Section 164 Cr.P.C. were kept out of consideration by the High Court, with liberty to the parties to independently make submissions before the Trial Court at the appropriate stage.9. The High Court then straightaway proceeded to analyse the efficacy of document D-132(a) forming part of the charge¬ sheet. In light of the statement of Ghulam Mohammad Bhatt from whom the same was recovered, it noted in paragraph 61 of the impugned judgment that it was unlikely that the document D¬132(a) was recovered from the residence of Ghulam Mohammad Bhatt till 16 th August, 2017, and thereafter proceeded to observeWhile the genuineness and the evidentiary value of Document 132 (a) is yet to be established by the NIA at the trial, since this one document is being relied upon by the NIA as being central to its case against the Appellant, it is but inevitable that the trial Court and now this Court has to discuss it in some detail for the purpose of deciding whether the Appellant can be released on bail.63. The question that arises is whether there is anything to show with reference to each of the dates mentioned in the above Document No. 132 (a) that the figures shown against the entry on each date (purporting to be specific amounts of money) was in fact received by the Appellant in his personal accounts or in the accounts of any of his entities. Although the case of the NIA is that the money has been received, there is no document or statement, which forms part of the charge sheet, which in fact indicates this.64. The above document is also relied upon by the NIA as providing proof of the linkages of the Appellant to A¬1, through the entry dated 3rd May, 2015 and with the Pakistan High Commission (PHC) through the entries dated 15th and 20th October, 2016. Yet none from the PHC has been named, much less statement of such a person been recorded to confirm that those figures represented money that was received from the PHC.65. The case of the NIA in the charge sheet is that the same document is also proof of the fact that the monies so received were passed on to the Hurriyat leaders. Reference is made to the fourth column of the above document where the names of some of the Hurriyat leaders are mentioned. However, there is nothing to show that the money was received by the Appellant and then transmitted by him to any of the named Hurriyat leaders. Nor have any of the ‘prospectiveincluding Mr Bhatt made any statement to that effect.66. Mr. Luthra urged that the signature of the Appellant in the right hand bottom corner of the document has been confirmed by the handwriting expert to match the specimen signature of the Appellant. In reply it was pointed out by Mr. Vikas Pahwa, learned Senior counsel for the Appellant, that the mere fact that thesignature appeared on the document did not mean that he had in fact signed the document in acceptance of the truth of its contents. According to him, it is too early to speculate whether the Appellant when he signed the paper, if at all, put his signature on a blank green legal size paper which may be have then been used for legal purposes for an affidavit etc.67. It is indeed too early in the case to speculate whether the Appellant in fact signed the document after it was typed out and whether his signature amounts to accepting the truth of its contents or for that matter whether the contents of the document in question constitute conclusive proof of what the NIA alleges the document to be.68. In the circumstances, the Court is not satisfied that a sheet of paper containing typed entries and in loose form, not shown to form part of the books of accounts regularly maintained by the Appellant or his business entities, can constitute material to even ‘primaconnect the Appellant with the crime with which he is sought to be charged. The conclusion of the trial Court that this document shows the connection of the Appellant with the other accused as regards terrorist funding does not logically or legally flow from a plain reading of the document.The High Court then adverted to the other documents. It analysed the concerned documents and concluded that the entire bunch of documents did not reveal that the trading activities undertaken by the respondent were geared towards funding of terrorist activities, as alleged in the charge¬sheet. It may be apposite to reproduce the relevant extract from the impugned judgment in this regard, which readsMr. Luthra then referred to the statements of Mustaq Ahmad Mir and Shabbir Ahmad Mir, the reply of Mr Mustaq Ahmad Mir (Ex.D¬214), the CFSL report dated 6th November, 2017 (document D¬154); the seizure memo dated 3rd June, 2017 (document D-3) regarding the recovery being made from the residence of the Appellant; the seizure memo of the same date of the recoveries from the office of the TFCPL (document D-4); and the bunch of papers seized from the Appellant [D¬4(e)] referred to by the trial Court.70. Beginning with the last referred document, [D¬4(e)], it is actually a bunch of documents, the first of which is a letter dated 28th June, 2016, written by the Prime Minister of Pakistan Mr Mohammad Nawaz Sharif to the Appellant thanking him for the bouquet sent to him with wishes for his good health and well being.71. Then there is a letter dated 20th November, 2007 from the President of the Azad Jammu and Kashmir, Chambers of Commerce and Industry, addressed to the Appellant, appointing the Appellant as an Honorary Trade Consultant at Srinagar. It notes that Pakistan and India had initiated/undertaken a number of Kashmir related CBMs (confidence building measures) in the recent past to provide respite to the Kashmiris on both sides of the LoC (Line of Control):‘1.Pakistan and India have initiated/undertaken a number of Kashmir related CBMs in recent past to provide respite to the Kashmiris on both sides of the LoC. One such CBM which is under active consideration is commencement of trade between both parts of Kashmir. Necessary modalities including the items to be traded are being worked out.The other documents reflect the correspondence carried out in the regular course of business between thebusiness entities and other entities including the Al-Shafi Group of companies, headquartered at Lahore. A business invitation was extended to the Appellant on 7th February, 2014 by Mohd. Tariq Shafi, the director of Al¬Shafi Group of companies to visit them for business negotiations. There is a letter of the same date addressed by Mr. Mohd. Tariq Shafi to the PHC in New Delhi for grant of Pakistan Business Visa to the Appellant.73. It must be noticed at this stage that the NIA does not dispute that the Appellant is a leading businessman in Kashmir. He runs a conglomerate of business entities and has been active in the context of the Indo¬Pakistan trade. Nothing has been shown to this Court from the entire bunch of documents which would suggest that these trade activities were geared toward funding of terrorist activities, as alleged in the charge¬sheet.The High Court then adverted to the statements of Mustaq Ahmad Mir and Shabbir Ahmad Mir and noted that the same had no evidentiary value since they were merely statements under Section 161 Cr.P.C. and even if taken at their face value, they would only indicate that some of the entries in the accounts and, in particular, the source of credit entries were not explained properly. Further, the accounts of the entities of the respondent were regularly audited and it was not possible to prima facie conclude that these unknown sources were, in fact, connected to the other accused and that remittances were received from Pakistan or UAE for terrorist activities. The Court noted that there must be something more substantial than mere audited accounts that may have entries that require explanation to the Income Tax Authorities. As a result, the High Court concluded that the documents relied upon by the Investigating Agency did not persuade the Court to prima facie conclude that the respondent received money from A-1 or Pakistan High Commission or others and was passing on the said funds to the Hurriyat leaders for funding terrorist activities and stone¬pelting. The High Court also adverted to the statement of the ‘protectedW¬48 about the proximity of the respondent (Accused No.10) with A¬ 4 and A-6 and opined that the same could not be construed as material that would enable the prosecution to show that accusation against the respondent about his funding terrorist activities was prima facie true. Lastly, the High Court dealt with transaction of lease involving Naval Kishore Kapoor and notedTuring to the transaction of lease involving Mr. Naval Kishore Kapoor, it is explained on behalf of the Appellant that only individuals domiciled in Kashmir can hold properties there. There was no declaration ofof lands by the companies and in any event it was a lease. The lease itself has not been shown to be a sham transaction. As regards the NRE account, it is pointed out that it has since been closed and the fine amount was also paid. As regards the CDRs, it is pointed out that there may have been exchange of calls between the Appellant and A¬6 but not between the Appellant and A-3, A¬4 or A¬5. This cannot at this stage be said to constitute material to show that the accusation of a criminal conspiracy between the Appellant and A-6 for commission of terrorist offences is prima facie true. It also emerged during the course of the hearing of this appeal that neither the APHC nor any of its 26 constituent organisations areorganisations within the meaning of the UAPA.Having said thus, the High Court proceeded to conclude that the order passed by the Designated Court was cryptic and unsustainable both on facts and in law. It then went on to observe that there was nothing on record to indicate the previous criminal involvement of the respondent in any offence or the possibility of the respondent fleeing from justice, if released on bail. Further, the respondent who was a septuagenarian and was suffering from various medical ailments, was in judicial custody for more than a year and had not tampered with the evidence or interfered with any of thewitnesses. The High Court then went on to rely on the dictum in Davender Gupta Vs. National Investigating Agency(2014) SCC Online AP 192 and Sanjay Chandra Vs. CBI AIR 2012 SC. Finally, the High Court directed the release of respondent on bail and issued directions in that regard subject to conditions stated in the concluding part of the impugned judgment which reads. The impugned order dated 8th June, 2018 of the trial Court is accordingly set aside. The Appellant is directed to be released on bail subject to his furnishing a personal bond in the sum of Rs.2 lakhs with two sureties of like amount to the satisfaction of the trial Court, and further subject to the following conditions:(i) The Appellant shall report to the IO in charge of the case as and when required. He shall provide to the IO as well as the trial Court the mobile phone on which he can be contacted and his current address where he will be available. He will keep both the IO and the trial Court informed promptly if there is any change in either.(ii) He will not influence or intimidate the proposed/prospective Crl.A.768/2018 Page 40 of 40 prosecution witnesses or tamper with the evidence of the prosecution in any manner.(iii) The Appellant will surrender his passport before the trial Court at the time of execution of the bail bonds. He will not travel out of the country without prior permission of the trial Court. (iv) If there is any breach of the above conditions, it will be open to the NIA to apply to the trial Court for cancellation of bail.83. It is clarified that the observations of this Court in this order both on facts and law are based on the materials forming part of the charge sheet and are prima facie in nature and for the limited purpose of considering the case of the Appellant for grant of bail. They are not intended to influence the decisions of the trial Court at any stage of the case hereafter.84. The appeal is allowed in the above

Reasoning: 17. By virtue of the proviso to sub¬section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused isof the alleged offence. There is degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused isof such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person ise. By its very nature, the expressionwould mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation isas compared to the opinion of accusedof such offence as required under the other special enactments. In any case, 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 in relation to offences under the 1967 Act. Nevertheless, we may take guidance from the exposition in the case of Ranjitsing Brahmajeetsing Sharma (supra), wherein a three¬Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail.A priori, the exercise to be undertaken by the Court at this stage ¬ of giving reasons for grant or non-grant of bail ¬ is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broadprobabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. From the analysis of the impugned judgment, it appears to us that the High Court has ventured into an area of examining the merits and demerits of the evidence. For, it noted that the evidence in the form of statements of witnesses under Section 161 are not admissible. Further, the documents pressed into service by the Investigating Agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16 th August, 2017 (paragraph 61 of the impugned judgment). Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 of Cr.P.C., on the specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge¬ sheet already filed against the respondent is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the concerned accused is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 of Cr.P.C.) and other material gathered by the Investigating Agency during investigation. Be it noted that the special provision, Section 43D of the 1967 Act, applies right from the stage of registration of FIR for offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. To wit, soon after the arrest of the accused on the basis of the FIR registered against him, but before filing of the charge-sheet by the Investigating Agency; after filing of the first charge-sheet and before the filing of the supplementary or final charge-sheet consequent to further investigation under Section 173(8) Cr.P.C., until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses etc. However, once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173 of Cr.P.C.), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.19. For that, the totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance. In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. For, the issue of admissibility of the document/evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as itwill have to be answered keeping in mind the totality of materials including the one presented along with the police report. Be it noted that the prosecution is relying on several documents forming part of the first charge-sheet (pending further investigation) filed against the respondent (Accused No.10) allegedly showing his involvement in the commission of the stated offences. Reference has been made to some of the crucial documents mentioned in the chart handed over to the Court by the appellant. The same, inter alia, readDuring the hearing, emphasis was placed by the learned Attorney General on documents D¬132, D-132(a)/23, D¬3/6, D¬3g/20, D¬3h/28, D¬3j to D¬3j/5, D¬9b, D¬9c, D¬154 and D¬ 185/10. Besides these documents, our attention was also invited to the statements of Ghulam Mohammad Bhatt (W¬29) dated 30 th August, 2017, and 23 rd November, 2017, as well as the redacted statements of protected witnesses (recorded under Section 164, which have now been taken on record by the Designated Court in terms of order dated 11 th January, 2019. Notably, the order passed by the Designated Court permitting redaction of those statements has not been assailed by the respondent. In our opinion, the High Court, having noticed that the Designated Court had not looked at the stated statements presented in a sealed cover, coupled with the fact that the application under Section 44 filed by the Investigating Agency was pending before the Designated Court, and before finally answering the prayer for grant of bail, should have directed the Designated Court to first decide the said application and if allowed, consider the redacted statements, to form its opinion as to whether there are reasonable grounds for believing that the accusation made against the respondent is prima facie true or otherwise. For, in terms of Section 43D, it is the bounden duty of the Court to peruse the case diary and/or the report made under Section 173 of the Code and all other relevant material/evidence produced by the Investigating Agency, for recording its opinion. We could have relegated the parties before the High Court but the counsel appearing for the respondent, on instructions, stated that the respondent would prefer to await the decision of the Designated Court and, depending on the outcome of the application under Section 44 of the Act, would contest the proceedings before this Court itself. Accordingly, at the request of the respondent, we kept the present appeal pending. Since the Designated Court has finally disposed of the application preferred by the Investigating Agency vide order dated 11 th January, 2019, the correctness whereof has not been challenged by the respondent, the redacted statements of the concerned protected witnesses have been taken on record.22. Accordingly, we have analysed the matter not only in light of the accusations in the FIR and the charge¬sheet or the police report made under Section 173, but also the documentary evidence and statements of the prospective witnesses recorded under Sections 161 and 164, including the redacted statements of the protected witnesses, for considering the prayer for bail.23. As regards the redacted statements, objection of the respondent was that the certificate given by the competent authority is not in conformity with the certificate required to be given in terms of Section 164(4) of Cr.P.C. This objection has been justly countered by the learned Attorney General with the argument that the objection borders on the issue of admissibility of the said statements. We find force in the submission that the issue regarding admissibility of the statements and efficacy of the certificates given by the competent authority, appended to the redacted statements would be a matter for trial and subject to the evidence in reference to Section 463 of Cr.P.C. and cannot be overlooked at this stage. Viewed thus, the exposition in the case of Ramchandra Keshav Adke (dead) by LRs. and Ors. Vs. Govind Joti Chavare and Ors. (1975) 1 SCC 559 = AIR 1975 SC 915 , in paragraph 25 of the reported judgment will be of no avail to the respondent.24. After having analyzed the documents and the statements forming part of the charge¬sheet as well as the redacted statements now taken on record, we disagree with the conclusion recorded by the High Court. In our opinion, taking into account the totality of the report made under Section 173 of the Code and the accompanying documents and the evidence/material already presented to the Court, including the redacted statements of the protected witnesses recorded under Section 164 of the Code, there are reasonable grounds to believe that the accusations made against the respondent are prima facie true. Be it noted, further investigation is in progress. We may observe that since the prayer for bail is to be rejected, it may not be appropriate for us to dilate on matters which may eventually prejudice the respondent(Accused No.10) in any manner in the course of the trial. Suffice it to observe that the material produced by the Investigating Agency thus far (pending further investigation) shows the linkage of the respondent (Accused No.10) with A¬3, A¬4, A¬5 and A¬6 and, likewise, linkages between the respondent (Accused No.10) and A¬3 to A¬12, as revealed from the CDR analysis.28. Reverting to the documents on which emphasis has been placed, document D-132 is the Seizure Memo of properties seized from the premises of Ghulam Mohammad Bhatt (W¬29), the then Munshi/Accountant of the respondent (Accused No.10). Document D¬132(a) is the green page document, seized during the search of the residence of said Ghulam Mohammad Bhatt, containing information about foreign contributions and expenditures of the respondent (Accused No.10) during 2015/2016. Whether this document is admissible in evidence would be a matter for trial. Be that as it may, besides the said document, the statement of Ghulam Mohammad Bhatt (W-29) has been recorded on 30 th August, 2017 and 1 st November, 2017. Whether the credibility of the said witness should be accepted cannot be put in issue at this stage. The statement does make reference to the diaries recovered from his residence showing transfer of substantial cash amounts to different parties, which he has explained by stating that cash transactions were looked after by the respondent (Accused No.10) himself. He had admitted the recovery of the green colour document from his residence, bearing signature of the respondent (Accused No.10) and mentioning about the cash amounts received and disbursed during the relevant period between 2015 and 2016. The accusation against the respondent (Accused No.10) is that accused A¬3 to A¬10 are part of the All Parties Hurriyat Conference which calls itself a political front, whereas their agenda is to create an atmosphere conducive to the goal of cessation of J & K from the Union of India. The role attributed to the respondent (Accused No.10) is that of being part of the larger conspiracy and to act as a fund raiser and finance conduit. Ample material has been collected to show the linkages between the Hurriyat leaders of the J & K and terrorists/terrorist organizations and their continuous activities to wage war against Government of India.In reference to these accusations, the entry in the diaries and the green-colour document, recovered from the residence of Ghulam Mohammad Bhatt, is significant. Further, the seizure memo described as document D¬3/6, in respect of search and seizure of articles/documents seized from the premises of the respondent (Accused No.10) dated 3 rd June, 2017, would unravel the activities of the respondent, including regarding his financial deals. Another crucial document described as D¬3g/20 is a contact diary seized from the respondent vide Memo D¬3, which contains the Pakistan National name and contactwhose name figures in document D¬132(a)/23. The Codepertains to Pakistan. Another contact diary was seized from the respondent vide Memo D-3, which, at page D¬3h/28 contains the same name and contact, namely,The documents D¬3j to D¬3j/5 also indicate the involvement of the respondent in terrorist activities, including that three cases of TADA have been registered against him in the past and investigated and one case of J & K PSA, 1978. The High Court erroneously proceeded on the premise that the charge-sheet makes no reference to any other criminal case against the respondent. Additionally, the charge-sheet is accompanied with documents D¬9b and D¬9c, which are photographs of ex¬militant Aftab Hilali Shah @ Shahid¬ul¬Islam (A¬3) holding AK¬47, seen with other terrorists. These photographs were seized from the residence of the said ex¬militant on 3 rd June, 2017. The prosecution case is that the respondent (Accused No.10) was in constant touch with the said ex-militant Aftab Hilali Shah @ Shahid¬ul¬Islam (A¬3), as noticed from the inter¬linkage chart depicted above. That fact is backed by the CDR analysis report, also part of the charge¬sheet. The charge-sheet also contains document D¬185/10, which is a contact list of accused Nayeem Khan (A¬5) retrieved through forensic analysis, having mobile numbers of persons associated with Hurriyat party; and of one Mudasir Cheema Pak who is none other than the First Secretary of Pakistan High Commission. His name also figures in document D¬132(a)/23. The Designated Court, besides adverting to the aforementioned documents, also adverted to other documents and the statements of the prospective witnesses (Ws-1, 28, 29, 38, 39, 43, 44, 48 and 52). The High Court has not appreciated the said material which found favour with the Designated Court to record its opinion that there are reasonable grounds for believing that the accusation against the respondent is prima facie true. The view so expressed by the Designated Court commends to us. Suffice it to observe that the High Court adopted a tenuous approach ¬ by first discarding the document D¬132(a) and then discarding the statement of witnesses recorded under Section 161 and also the statements recorded under Section 164, presented by the Investigating Agency in a sealed cover. As aforesaid, the High Court ought to have taken into account the totality of the materials/evidences which depicted the involvement of the respondent in the commission of the stated offences and being a member of a larger conspiracy, besides the offence under Section 17 for raising funds for terrorist activities.30. In the case of Niranjan Singh Karam Singh Punjabi (supra), the Court essentially considered the scope and ambit of the enquiry by the Trial Court at the stage ofIn that context, the Court made observations in paragraphs 6 and 8 of the said judgment which must be understood accordingly. In the present case, however, we are called upon to consider the prayer for bail in the context of the purport of the proviso to Section 43D(5) of the 1967 Act which mandates that the accused person involved in the commission of offence referable to Chapters IV and VI of the 1967 Act shall not be released on bail or on bond. However, the Court may release such accused on bail only if it is of the opinion, on perusal of the case diary and/or the report made under Section 173 of Cr.P.C. that there arefor believing that the accusation against such person is prima facie true. Conversely, if in the opinion of the Court, there are reasonable grounds for believing that the accusation against such person is prima facie true, the question of granting bail would not arise as the bar under the first part of the proviso of no bail in such cases would operate.31. The fact that there is a high burden on the accused in terms of the special provisions contained in Section 43D(5) to demonstrate that the prosecution has not been able to show that there exists reasonable grounds to show that the accusation against him is prima facie true, does not alter the legal position expounded in K. Veeraswami (supra), to the effect that the charge-sheet need not contain detailed analysis of the evidence. It is for the Court considering the application for bail to assess the material/evidence presented by the Investigating Agency along with the report under Section 173 of Cr.P.C. in its entirety, to form its opinion as to whether there are reasonable grounds for believing that the accusation against the named accused is prima facie true or otherwise.We fail to understand as to how this decision will be of any avail to the respondent. In our opinion, the Designated Court had rightly rejected the bail application after adverting to the relevant material/evidence indicative of the fact that there are reasonable grounds for believing that the accusation against the respondent is prima facie true.34. With reference to the document D¬132(a), the High Court was impressed by the argument that the same would be inadmissible. To buttress that opinion of the High Court, the respondent would rely on the decision of this Court in V.C. Shukla (supra). Further, it was submitted that in light of Section 34 of the Evidence Act, the said document could not be admitted in evidence, since it was not an entry in the books of account regularly kept in the course of business. In any case, that document by itself would not be sufficient in the absence of any independent evidence. Learned Attorney General, relying on the underlying principle in Khoday Distilleries Ltd. and Ors. Vs. State of Karnataka and Ors. 21 , would contend that there cannot be business in crime and, as such, Section 34 of the Evidence Act will have no application. He further submits that the prosecution may use the facts noted in the said document and prove the same against the respondent by other evidence. This argument need not detain us. For, we find force in the argument of the learned Attorney General that the issue of admissibility and credibility of the material and evidence presented by the Investigating Officer would be a matter for trial. Furthermore, indubitably, the prosecution is not solely relying on the document D¬132(a) recovered from the residence of Ghulam Mohammad Bhatt (W¬29). There are also other incriminatory documents recovered from respondent (Accused No.10) himself during the search, including other independent evidence, which, indeed, will have to be proved during the trial. 21 (1995) 1 SCC 574 ( para 60)35. The appellant has relied on the exposition in Salim Khan (supra), to contend that in cases where the High Court adopted a totally erroneous approach, as in the present case, discarding the crucial material/evidence which is referred to in the report under Section 173 Cr.P.C. and presented before the Designated Court, then the order granting bail by the High Court cannot be countenanced. The argument of the respondent is that the said decision would make no difference as it is concerning an application for cancellation of bail made by the informant. However, we find force in the argument of the appellant that the High Court, in the present case, adopted an inappropriate approach whilst considering the prayer for grant of bail. The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true.36. In a decision of this Court in Chenna Boyanna Krishna Yadav (supra), to which reference has been made, the Court has re¬stated the twin conditions to be considered by the Court before grant of bail in relation to MCOCA offences. We are of the view that in the present case, the Designated Court rightly opined that there are reasonable grounds for believing that the accusation against the respondent is prima facie true. As we are not inclined to accept the prayer for bail, in our opinion, it is not necessary to dilate on other aspects to obviate prolixity.37. A fortiori, we deem it proper to reverse the order passed by the High Court granting bail to the respondent. Instead, we agree with the conclusion recorded by the Designated Court that in the facts of the present case, the respondent is not entitled to grant of bail in connection with the stated offences, particularly those falling under Chapters IV and VI of the 1967 Act.