Gurwinder Singh vs State Of Punjab on 7 February, 2024

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Supreme Court of India

Gurwinder Singh vs State Of Punjab on 7 February, 2024

Author: Aravind Kumar

Bench: Aravind Kumar, M.M. Sundresh

2024 INSC 92


                                           IN THE SUPREME COURT OF INDIA

                                        CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL APPEAL NO.704 of 2024
                            (@ SPECIAL LEAVE PETITION (CRIMINAL) No.10047 of 2023)

                            GURWINDER SINGH                                          …APPELLANT


                            STATE OF PUNJAB & ANOTHER                             ...RESPONDENTS


Aravind Kumar J.

1. Leave granted.

2. The present appeal impugns the order dated 24.04.2023 passed by

the High Court of Punjab and Haryana at Chandigarh in CRA-D No. 144 of

2022 (O&M) whereby the High Court has upheld the order dated 16.12.2021

passed by the Special Judge, NIA Court, SAS Nagar, Mohali in an

application filed under Section 439 of the Code of Criminal Procedure, 1973

(Cr.P.C) filed by the Appellant herein-Gurwinder Singh along with other co-
Signature Not Verified

Digitally signed by
accused seeking regular bail in NIA Case RC.19/2020/NIA/DLI, registered
Rajni Mukhi
Date: 2024.02.07
19:13:35 IST

under Sections 124A, 153A, 153B, 120-B of the Indian Penal Code, 1860


(IPC), Section(s) 17, 18, 19 of the Unlawful Activities (Prevention) Act,

1967 (UAP Act) and Sections 25 and 54 of the Arms Act, 1959, which came

to be rejected.

3. The factual matrix relevant to dispose the present petition are

summarized as under:

3.1 On 19.10.2018, Sh. Varinder Kumar, Inspector, CIA Staff, received

secret information that two persons are hanging cloth banners on which

“Khalistan Jindabad” and “Khalistan Referendum 2020”, was written, at

Pillars Kot Mit Singh Flyover, Amritsar. The Police team apprehended one

Sukhraj Singh @ Raju and Malkeet Singh @ Meetu on the spot and a case

was registered vide FIR No.152 dated 19.10.2018 under section(s) 124A,

153A, 153B and 120B of IPC against both the arrested accused. During the

course of Investigation, entire module of the banned terrorist organization

named “Sikh for Justice” was busted and other accused persons involved in

the said module namely, Bikramjit Singh @ Vicky, Manjit Singh @ Manga,

Jatinder Singh @ Goldy, Harpreet Singh @ Happy, Gurwinder Singh @

Gurpreet Singh @ Gopi-the present Appellant, Harmeet Singh @ Raju,

Roofel @ Raful @ Rahul Gill, Sukhmander Singh @ Gopi and Kuldeep

Singh @ Kuldip Singh @ Keepa were arrested by Punjab Police.

3.2 The investigation was completed and final report was presented on

16.04.2019 before the Trial Court against eleven accused persons under

Sections 117, 112, 124A, 153A, 153B, 120-B of IPC, Sections 17, 18, 19 of

UAP Act and Section 25 of Arms Act. On further investigation, the police

submitted supplementary reports.

3.3 Due to degree of severity in the charges involved, the investigation

in the present matter was transferred to the National Investigation Agency

(NIA), which took over the investigation of this case as per the directions of

Government of India, Ministry of Home Affairs issued vide Order

F.No.11011/30/2020/NIA dated 04.04.2020 and registered the original case

as RC.19/2020/NIA/DLI dated 05.04.2020. 3rd supplementary chargesheet

was filed by NIA dated 18.12.2020 and Charges were framed by the Learned

Special Judge, NIA Punjab on 09.12.2021.

3.4 The investigation revealed that the accused persons received funds

through illegal means sent by members of the banned terrorist organization

“Sikhs For Justice”, those funds were channeled through illegal means such

as “Hawala” and were sent to be used for furthering separatist ideology of

demanding a separate State for Sikhs popularly called “Khalistan”, and to

carry out terror activities and other preparatory acts i.e., attempts to procure

weapons to spread terror in India in furtherance of such separatist

movement. The investigation further revealed the hand of an ISI handler

named Javed Khan, to be behind the operations of this module busted by

Punjab Police and NIA.

3.5 The prima facie involvement of the present Appellant has cropped

up in the disclosure statement of the co-accused Bikramjit Singh @ Vicky

(Accused No. 3) recorded on 09.06.2020 while he was in the custody of


3.6 The said disclosure statement revealed that on 08.07.2018, the

Appellant herein-Gurwinder Singh accompanied Bikramjit Singh (Accused

No. 3) and Harpreet Singh @Happy (Accused No.7) to Srinagar in a car

where they had planned to purchase a pistol. There they met Sandeep Singh

@ Sana and further went to a JK-Li Camp in Srinagar. Sandeep Singh

entered the Army camp and after half an hour he came out and stated that

pistol was not available. Then they came back to Gurudwara Sahib, where

Sandeep offered them to purchase RDX instead, but they declined and all

three returned back to Punjab, where Bikramjit Singh (Accused No. 3) was

dropped off mid-way at Jandialaguru while both, the present Appellant and

Harpreet Singh @ Happy, returned back to their village in Punjab.

3.7 The Appellant’s disclosure statement recorded on 12.06.2020

revealed a similar story as that of Bikramjit Singh. The Appellant stated that

he and Harpreet Singh were childhood friends. In the 1st week of July 2018,

Harpreet proposed to visit Srinagar for Religious Service and asked the

Appellant to accompany. The Appellant in his disclosure statement further

stated that he initially denied to go with them however later agreed to

accompany them when Harpreet Singh continuously insisted him.

3.8 The trial court vide its order dated 16.12.2023 in CIS No.

BA/2445/2021 dismissed the Appellant’s bail application under Section 439

CrPC on the ground that there were reasonable grounds to believe the

accusation against the Appellant to be true. The said order was impugned by

way of an appeal before the High Court of Punjab and Haryana and

meanwhile on 10.04.2023, 4th supplementary charge sheet was filed by NIA

along with the List of witnesses and list of documents.

3.9 Vide the Impugned order the High Court rejected the grant of bail to

Appellant on the ground of seriousness of the nature of offence and that none

of the protected witnesses had been examined.


4. The Learned Senior Counsel, Mr. Colin Gonsalves, appearing on

behalf of the Appellant made the following submissions in support of the

Appellant’s bail application:

5. Mr. Gonsalves, learned Senior Counsel contended that the Appellant

has been denied bail by the Hon’ble High Court and the Ld. Special Judge

by relying upon the disclosure statement of Bikramjit Singh alias Vicky and

argued that the said disclosure statement cannot be used to implicate the

present Appellant.

6. Learned Senior Counsel further raised contentions about the lack of

scrutiny of the Appellant’s mobile phone, marked as M-4 to indicate that the

phone number did not belong to the Appellant. He argued that the absence

of incriminating conversations in the Communication Data Records (CDR)

related to the Appellant’s phone supports the case for bail. He further

contended that the Appellant has been in custody since the last Five years

facing charges of UAP Act which is contrary to the law laid down in KA

Najeeb v. Union of India.1

7. He further submitted that only 19 out of 106 witnesses have been

examined in the last five-year period. He also drew our attention to terror

funding chart to demonstrate that the name of the Appellant does not find

place in the same. Mr. Gonsalves also questioned the omission of the alleged

main conspirator, Nihal Singh, as an accused, emphasizing that the

Appellant did not procure any weapons.

8. He further sought our attention to the 4th supplementary

chargesheet, aimed at establishing a funding link with ISI, to illustrate the

(2021) 3 SCC 713

Appellant’s exclusion from relevant documentation. Lastly, he stated that out

of Nine protected witnesses that have been examined, eight have not

mentioned the name of Appellant. Hence, he prayed to set aside the

impugned order and grant bail to the Appellant.

9. Per contra, Mr. Suryaprakash V. Raju, learned Additional Solicitor

General, on behalf of the Respondent, submitted that there is sufficient

evidence on record to prove the incriminating role of the Appellant and the

same is revealed by the statements of Protected witnesses.

10. He further submitted that the Appellant-accused along with co-

accused Bikarmjit Singh @ Vicky (Accused No. 3) were involved in the

activities of “Sikhs for Justice”, a banded terrorist organisation, whose chief

proponent is Gurpatwant Singh Pannu (Accused No. 12) and Bikramjit

Singh @ Vicky (Accused No. 3) had asked their known persons to arrange

weapons from Kashmir. In furtherance of their activities to procure arms

and ammunition, the Appellant-accused along with co-accused Bikarmjit

Singh @ Vicky and Harpreet Singh @ Happy (Accused No. 7) had visited


11. He further submitted that Appellant in his voluntary disclosure

statement admitted that on gaining knowledge of purpose of visit to

Srinagar, he voluntarily continued the journey. In fact, the Appellant

suggested an alternative to the co-accused and advised them to procure the

weapon from Western Uttar Pradesh.

12. Further, he submitted that the provisions of section 43D(5) of

Unlawful Activities (Prevention) Act, 1967 are completely applicable in this

case and as such the High court has rightly denied bail to the Appellant-


13. He also contended that the case is presently under trial and so far 22

witnesses have been examined. The accused is facing charges of grave

nature pertaining to crimes that are not attributable to an individual but

members of a terrorist gang operating at the behest of Gurpatwant Singh

Pannu (Accused No. 12), a proscribed terrorist. If the Appellant is released

on bail, there is every likelihood that he will influence the key witnesses of

the case hampering the process of justice. Hence, he prayed that the bail

petition should be rejected.


14. We have heard the learned counsel on behalf of both the parties and

have perused the records of the case. The present case involves the charges

under the UAP Act along with other charges under the IPC and Arms Act

therefore, it is apt to consider the bail provision envisaged under section 43D

of the UAP Act before we delve to analyze the facts.

Bail under UAP Act: Section 43D (5)

15. In the course of oral argument, both sides have laid great

emphasis on the interpretation of section 43D(5) of the 1967 Act. We

will begin our analysis with a discussion on the scope and limitations of bail

under Section 43D(5) UAP Act.

We shall extract Section 43D(5) for easy reference:

“Section 43D – Modified application of certain provisions of the


(5) Notwithstanding anything contained in the Code, no person
accused of an offence punishable under Chapters IV and VI of
this Act shall, if in custody, be released on bail or on his own
bond unless the Public Prosecutor has been given an
opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail
or on his own bond if the Court, on a perusal of the case diary
or the report made under section 173 of the Code is of the
opinion that there are reasonable grounds for believing that the
accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section
(5) is in addition to the restrictions under the Code or any other
law for the time being in force on granting of bail.
(7) Notwithstanding anything contained in Sub-sections (5) and
(6), no bail shall be granted to a person accused of an offence
punishable under this Act, if he is not an Indian citizen and has
entered the country unauthorizedly or illegally except in very
exceptional circumstances and for reasons to be recorded in


16. The source of the power to grant bail in respect of non-bailable

offences punishable with death or life imprisonment emanates from Section

439 CrPC. It can be noticed that Section 43D(5) of the UAP Act modifies the

application of the general bail provisions in respect of offences punishable

under Chapter IV and Chapter VI of the UAP Act.

17. A bare reading of Sub-section (5) of Section 43D shows that apart

from the fact that Sub-section (5) bars a Special Court from releasing an

accused on bail without affording the Public Prosecutor an opportunity of

being heard on the application seeking release of an accused on bail, the

proviso to Sub-section (5) of Section 43D puts a complete embargo on the

powers of the Special Court to release an accused on bail. It lays down that

if the Court, ‘on perusal of the case diary or the report made under Section

173 of the Code of Criminal Procedure’, is of the opinion that there are

reasonable grounds for believing that the accusation, against such person, as

regards commission of offence or offences under Chapter IV and/or Chapter

VI of the UAP Act is prima facie true, such accused person shall not be

released on bail or on his own bond. It is interesting to note that there is no

analogous provision traceable in any other statute to the one found in Section

43D(5) of the UAP Act. In that sense, the language of bail limitation adopted

therein remains unique to the UAP Act.


18. The conventional idea in bail jurisprudence vis-à-vis ordinary penal

offences that the discretion of Courts must tilt in favour of the oft-quoted

phrase – ‘bail is the rule, jail is the exception’ – unless circumstances justify

otherwise – does not find any place while dealing with bail applications

under UAP Act. The ‘exercise’ of the general power to grant bail under the

UAP Act is severely restrictive in scope. The form of the words used in

proviso to Section 43D (5)– ‘shall not be released’ in contrast with the form

of the words as found in Section 437(1) CrPC – ‘may be released’ – suggests

the intention of the Legislature to make bail, the exception and jail, the rule.

19. The courts are, therefore, burdened with a sensitive task on hand. In

dealing with bail applications under UAP Act, the courts are merely

examining if there is justification to reject bail. The ‘justifications’ must be

searched from the case diary and the final report submitted before the

Special Court. The legislature has prescribed a low, ‘prima facie’ standard,

as a measure of the degree of satisfaction, to be recorded by Court when

scrutinising the justifications [materials on record]. This standard can be

contrasted with the standard of ‘strong suspicion’, which is used by Courts

while hearing applications for ‘discharge’. In fact, the Supreme Court in

Zahoor Ali Watali2 has noticed this difference, where it said:


(2019) 5 SCC 1

“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.”

20. In this background, the test for rejection of bail is quite plain. Bail

must be rejected as a ‘rule’, if after hearing the public prosecutor and after

perusing the final report or Case Diary, the Court arrives at a conclusion that

there are reasonable grounds for believing that the accusations are prima

facie true. It is only if the test for rejection of bail is not satisfied – that the

Courts would proceed to decide the bail application in accordance with the

‘tripod test’ (flight risk, influencing witnesses, tampering with evidence).

This position is made clear by Sub-section (6) of Section 43D, which lays

down that the restrictions, on granting of bail specified in Sub-section (5),

are in addition to the restrictions under the Code of Criminal Procedure or

any other law for the time being in force on grant of bail.

21. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a

bail court must undertake while deciding bail applications under the UAP

Act can be summarised in the form of a twin-prong test :

1) Whether the test for rejection of the bail is satisfied?


1.1 Examine if, prima facie, the alleged ‘accusations’
make out an offence under Chapter IV or VI of the UAP

1.2 Such examination should be limited to case diary
and final report submitted under Section 173 CrPC;

2) Whether the accused deserves to be enlarged on bail
in light of the general principles relating to grant of bail
under Section 439 CrPC (‘tripod test’)?

On a consideration of various factors such as nature of offence, length of

punishment (if convicted), age, character, status of accused etc., the Courts

must ask itself :

2.1 Whether the accused is a flight risk?

2.2. Whether there is apprehension of the accused
tampering with the evidence?

2.3 Whether there is apprehension of accused
influencing witnesses?

22. The question of entering the ‘second test’ of the inquiry will not arise

if the ‘first test’ is satisfied. And merely because the first test is satisfied, that

does not mean however that the accused is automatically entitled to bail. The

accused will have to show that he successfully passes the ‘tripod test’.

Test for Rejection of Bail: Guidelines as laid down by Supreme Court

in Watali’s Case

23. In the previous section, based on a textual reading, we have

discussed the broad inquiry which Courts seized of bail applications under

Section 43D(5) UAP Act r/w Section 439 CrPC must indulge in. Setting out

the framework of the law seems rather easy, yet the application of it, presents

its own complexities. For greater clarity in the application of the test set out

above, it would be helpful to seek guidance from binding precedents. In this

regard, we need to look no further than Watali’s case which has laid down

elaborate guidelines on the approach that Courts must partake in, in their

application of the bail limitations under the UAP Act. On a perusal of

paragraphs 23 to 29 and 32, the following 8-point propositions emerge and

they are summarised as follows:

• Meaning of ‘Prima facie true’ [para 23]: On the face of it, the materials

must show the complicity of the accused in commission of the offence. The

materials/evidence must be good and sufficient to establish a given fact or

chain of facts constituting the stated offence, unless rebutted or contradicted

by other evidence.

• Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and Post-

Charges – Compared [para 23]: 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 CrPC), 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.

• Reasoning, necessary but no detailed evaluation of evidence [para 24]:

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.

• Record a finding on broad probabilities, not based on proof beyond

doubt [para 24]: “The Court is merely expected to record a finding on the

basis of broad probabilities regarding the involvement of the accused in the

commission of the stated offence or otherwise.”

• Duration of the limitation under Section 43D(5) [para 26]: The special

provision, Section 43-D of the 1967 Act, applies right from the stage of

registration of FIR for the offences under Chapters IV and VI of the 1967

Act until the conclusion of the trial thereof.

• Material on record must be analysed as a ‘whole’; no piecemeal

analysis [para 27]: 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.

• Contents of documents to be presumed as true [para 27]: The Court must

look at the contents of the document and take such document into account as

it is.

• Admissibility of documents relied upon by Prosecution cannot be

questioned [para 27]: The materials/evidence collected by the investigation

agency in support of the accusation against the accused in the first

information report must prevail until contradicted and overcome or

disproved by other evidence…….In any case, the question of discarding the

document at this stage, on the ground of being inadmissible in evidence, is

not permissible.

24. It will also be apposite at this juncture to refer to the directions issued

in Devender Gupta v. National Investigating Agency3 wherein a Division

Bench of the High Court of Andhra Pradesh strove to strike a balance

2014 (2) ALD Cri. 251

between the mandate under Section 43D on one hand and the rights of the

accused on the other. It was held as follows:

“The following instances or circumstances, in our view, would
provide adequate guidance for the Court to form an opinion, as
to whether the accusation in such cases is “prima facie true”:

1) Whether the accused is/are associated with any organization,
which is prohibited through an order passed under the provisions
of the act;

2) Whether the accused was convicted of the offenses involving such
crimes, or terrorist activities, or though acquitted on technical
grounds; was held to be associated with terrorist activities;

3) Whether any explosive material, of the category used in the
commission of the crime, which gave rise to the prosecution; was
recovered from, or at the instance of the accused;

4) Whether any eye witness or a mechanical device, such as CC
camera, had indicated the involvement, or presence of the
accused, at or around the scene of occurrence; and

5) Whether the accused was/were arrested, soon after the
occurrence, on the basis of the information, or clues available with
the enforcement or investigating agencies.”

25. In the case of Kekhriesatuo Tep and Ors. v. National Investigation

Agency4 the Two-Judge Bench (Justice B.R. Gavai & Justice Sanjay Karol)

while dealing with the bail application for the offence of supporting and

raising funds for terrorist organization under section 39 and 40 of the UAP

Act relied upon NIA v. Zahoor Ahmad Shah Watali5 and observed that:

“while dealing with the bail petition filed by the accused against
whom offences under chapter IV and VI of UAPA have been
made, the court has to consider as to whether there are

(2023) 6 SCC 58
(2019) 5 SCC 1

reasonable grounds for believing that the accusation against the
accused is prima facie true. The bench also observed that
distinction between the words “not guilty” as used in TADA,
MCOCA and NDPS Act as against the words “prima facie” in
the UAPA as held in Watali’s Case (supra) to state that a degree
of satisfaction required in the case of “not guilty” is much
stronger than the satisfaction required in a case where the words
used are “prima facie”

26. In the case of Sudesh Kedia v. Union of India6 the Bench of Justice

Nageswara Rao and Justice S. Ravindra Bhat while dealing with a bail

application for the offence u/s. 17, 18 and 21 of the UAP Act relied upon

the principle propounded in Watali’s case (supra) and observed that:

“the expression “prima facie” would mean that the
materials/evidence collated by the investigating agency in
reference to the accusation against the accused concerned must
prevail until contradicted and overcome or disproved by other
evidence, and on the face of it, shows that 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

27. In the light of these guiding principles, we shall now proceed to

decide whether the additional limitations found in Section 43D(5) UAP Act

are attracted in the facts of the present case. In other words, we shall inquire

if the first test (as set out above), i.e., test for rejection of bail, is satisfied.

For this purpose, it will, firstly, have to be examined whether the

allegations/accusations against the Appellants contained in charge-sheet

(2021) 4 SCC 704

documents and case diary, prima facie, disclose the commission of an

offence Section 17,18 and 19 of the UAP Act.

Section 17 of the UAP Act states:

17. Punishment for raising funds for terrorist act. —Whoever,
in India or in a foreign country, directly or indirectly, raises or
collects funds or provides funds to any person or persons or
attempts to provide funds to any person or persons, knowing that
such funds are likely to be used by such person or persons to
commit a terrorist act, notwithstanding whether such funds were
actually used or not for commission of such act, shall be
punishable with imprisonment for a term which shall not be less
than five years but which may extend to imprisonment for life, and
shall also be liable to fine.

Section 18 of the UAP Act states:

18. Punishment for conspiracy, etc.—Whoever conspires or
attempts to commit, or advocates, abets, advises or [incites,
directly or knowingly facilitates] the commission of, a terrorist
act or any act preparatory to the commission of a terrorist act,
shall be punishable with imprisonment for a term which shall not
be less than five years but which may extend to imprisonment for
life, and shall also be liable to fine.

Section 19 of the UAP Act states:

19. Punishment for harbouring, etc.—Whoever voluntarily
harbours or conceals, or attempts to harbour or conceal any
person knowing that such person is a terrorist shall be punishable
with imprisonment for a term which shall not be less than three
years but which may extend to imprisonment for life, and shall
also be liable to fine: Provided that this section shall not apply to
any case in which the harbour or concealment is by the spouse of
the offender.”


28. Having examined the provisions of law, let us now consider the

material available on record to ascertain whether the case of the Appellant

satisfies the tests as mentioned herein above.

29. The Appellant’s counsel contended that the Appellant’s mobile

phone has not undergone scrutiny, and therefore, no conclusive connection

to the charged offenses could be established. However, the scrutiny report

of Bikramjit Singh @ Vicky’s (Accused No. 3) mobile phone, marked as

M-5 reveals at serial no. 10, that the present Appellant was in

communication with Accused No.3 multiple times. The Call Detail Records

(CDRs) unveils a consistent pattern of communication between the

Appellant and Bikramjit Singh (Accused No.3) even prior to their trip to

Srinagar for procurement of weapons. Detailed scrutiny of the CDRs

indicates that the Appellant had engaged in communication with Bikramjit

Singh (Accused No.3) approximately 26 times, spanning from June 22,

2018 to October 19, 2018, the day of his arrest.

30. The Appellant’s counsel has objected to the denial of bail by the

High Court and Special Court upon relying on the disclosure statements of

Bikarmjit Singh @ Vicky (Accused No.3) and the Appellant himself.

Accused No.3 in his disclosure statement (Annexure P3) has stated that on

08.07.2018, he along with Harpreet Singh @ Happy and Gurwinder Singh

@ Gurpreet Singh Gopi (the present Appellant) went to Srinagar for the

purchase of pistol which was sought to be used by them to take revenge of

the Sacrilege of Guru Granth Sahib. Further, the disclosure Statement of the

present Appellant (Annexure P4) corroborated the disclosure Statement of

Accused No.3 wherein he stated that he went with Accused No.3 and

Harpreet Singh @ Happy to Srinagar. Though the present Appellant has

taken the stance of not knowing the purpose of the visit to Srinagar, in his

disclosure statement, he has admitted to the fact that he suggested both

Bikramjit Singh (Accused No.3) and Harpreet Singh (Accused No.7) to

purchase the weapon from western Uttar Pradesh.

31. The Appellant’s counsel has stated that in the terror funding chart

the name of the Appellant does not find place. It is pertinent to mention that

the charges in the present case reveals the involvement of a terrorist gang

which includes different members recruited for multiple roles. Hence, the

mere fact that the accused has not received any funds or nothing

incriminating was recovered from his mobile phone does not absolve him

of his role in the instant crime.

32. The Appellant’s counsel has relied upon the case of KA Najeeb

(supra) to back its contention that the appellant has been in jail for last five

years which is contrary to law laid down in the said case. While this

argument may appear compelling at first glance, it lacks depth and

substance. In KA Najeeb’s case this court was confronted with a

circumstance wherein except the respondent-accused, other co-accused had

already undergone trial and were sentenced to imprisonment of not

exceeding eight years therefore this court’s decision to consider bail was

grounded in the anticipation of the impending sentence that the respondent-

accused might face upon conviction and since the respondent-accused had

already served portion of the maximum imprisonment i.e., more than five

years, this court took it as a factor influencing its assessment to grant bail.

Further, in KA Najeeb’s case the trial of the respondent-accused was

severed from the other co-accused owing to his absconding and he was

traced back in 2015 and was being separately tried thereafter and the NIA

had filed a long list of witnesses that were left to be examined with

reference to the said accused therefore this court was of the view of

unlikelihood of completion of trial in near future. However, in the present

case the trial is already under way and 22 witnesses including the protected

witnesses have been examined. As already discussed, the material available

on record indicates the involvement of the appellant in furtherance of

terrorist activities backed by members of banned terrorist organization

involving exchange of large quantum of money through different channels

which needs to be deciphered and therefore in such a scenario if the

appellant is released on bail there is every likelihood that he will influence

the key witnesses of the case which might hamper the process of justice.

Therefore, mere delay in trial pertaining to grave offences as one involved

in the instant case cannot be used as a ground to grant bail. Hence, the

aforesaid argument on the behalf the appellant cannot be accepted.

33. Hence, we are of the considered view that the material on record

prima facie indicates the complicity of the accused as a part of the

conspiracy since he was knowingly facilitating the commission of a

preparatory act towards the commission of terrorist act under section 18 of

the UAP Act.

34. For the aforementioned reasons the bail application of the

Appellant is rejected and consequently the appeal fails. Needless to say,

that any observation made hereinabove is only for the purpose of deciding

the present bail application and the same shall not be construed as an

expression on the merits of the matter before the trial court.

(M.M. Sundresh)

(Aravind Kumar)

New Delhi,
February 07, 2024


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