Excelsior Correspondent
JAMMU, Oct 28: The High Court of Jammu and Kashmir and Ladakh has set aside an order of the Special Judge Poonch that had denied bail to an alleged operative of a banned terror outfit, observing that the trial court failed to properly apply the mandate of the Unlawful Activities (Prevention) Act (UAPA).
A Division Bench comprising Justice Sanjeev Kumar and Justice Sanjay Parihar passed the judgment while hearing an appeal filed by Farooq Ahmed (30), son of Talib Hussain of Derai Dabsi, presently residing at Dhar Galoon Kotan, Mendhar, Poonch, who has been lodged in Central Jail Kot Bhalwal since his arrest in August 2021.
Ahmed had challenged the December 31, 2024 order of the Additional Sessions Judge Poonch (Special Judge under NIA Act) which rejected his bail application in FIR No. 305/2021, registered for offences under Sections 17, 18, 20 and 40 of UAPA and Sections 120-B, 121, 122 and 123 of the Indian Penal Code.
The prosecution, represented by Senior Additional Advocate General Monika Kohli, argued that Farooq Ahmed was an active member of the proscribed terror organisation Jammu & Kashmir Ghaznavi Force (JKGF) and had been actively engaged in activities detrimental to national security. It was contended that Ahmed, along with other accused, was involved in raising funds for sustaining terror networks and recruiting youth for the banned outfit.
During investigation, disclosures by co-accused allegedly led to the recovery of Rs 19.76 lakh in cash and JKGF propaganda posters, while smaller recoveries were made from other associates. The police also alleged that Ahmed received cash and instructions from co-accused Mohd Parvaiz for carrying out recruitment activities, on the directions of Pakistan-based handlers including Mohd Razaq and Ismail, linked with the Inter-Services Intelligence (ISI).
Appearing for the appellant, Advocate I H Bhat argued that there was no substantive evidence against Ahmed and that the trial court had erred in law by refusing bail. He submitted that the trial court itself noted the difficulty in forming an opinion on whether the accusations were prima facie true, which, according to the defence, clearly showed non-application of mind under Section 43-D(5) of UAPA.
It was stressed that the accused has been incarcerated for over four years without trial reaching a meaningful stage, and in absence of reasonable grounds, the principle of “bail is the rule, jail the exception” ought to apply.
The High Court, after perusing the charge-sheet and trial court order, found merit in the appellant’s contention. The Bench observed that the Special Judge had abdicated its statutory responsibility under Section 43-D(5) of UAPA by failing to record a clear finding on whether accusations appeared prima facie true.
Quoting the Supreme Court ruling in NIA Vs Zahoor Ahmad Shah Watali (2019), the court held that the degree of satisfaction required for declining bail under UAPA is lighter than framing of charges, but nevertheless mandates a judicial determination. The Bench noted that by recording that it is difficult to frame an opinion at this stage, the trial court virtually abdicated its statutory duty to arrive at a satisfaction contemplated under Section 43-D(5). Such reasoning, the court held, is unsustainable in law.
While refraining from commenting on the merits of the case or the strength of evidence, the High Court remanded the matter back to the trial court for fresh consideration. “The impugned order declining bail to the appellant is set aside. The matter is remanded to the trial court, which shall hear both parties afresh and thereafter pass a reasoned order strictly in accordance with law,” the Division Bench directed.
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