Paragraph numbers below are the court’s original numbering, recovered from the source text.
1. The terrorist and Hurriyat leaders have a close nexus with the active militants, OGWs and stone-pelters in Kashmir Valley. They are closely coordinating with each other and have formed a terrorist gang to achieve their common goal of secession from the Union of India by way of an armed rebellion.
2. To fuel the secessionist activities, Pakistan is providing funds to the Hurriyat leaders and the same are channelized through Hawala, LoC trade and other means. Sometimes, the funds are provided directly by Pakistan High Commission in India.
3. Hurriyat has convenor/representative(s) in Pakistan who liaise with Pakistan agencies and also with the Kashmir Cell of the ISI, the United Jehad Council and the Jamaat-Ud-Dawah.
4. The benefits drawn out of the LoC trade are reaching the Hurriyat leaders for fuelling the unrest in the Valley.
5. Funds are raised locally by way of collecting donations from the common people in the name of Zakat and Betul Maal.
6. The Hurriyat leaders are working in a systematic and organized manner as per the instructions of their Pakistani handlers by setting up a network of their cadres at village level, block level and District level.
7. The High Commission of Pakistan organizes functions and meetings in New Delhi, to which the Hurriyat leaders from Kashmir are invited and they are given instructions and funds so that the unrest in the Valley can be fuelled in an organized manner.
8. The Hurriyat leaders are raising funds from the Pakistani establishments/agencies in the name of helping the youth injured/killed during the action of security forces.
9. The families of the active militants and killed militants are supported by the Hurriyat leaders financially, socially as well as by arranging for the higher education of their wards in Pakistan.
10. The Hurriyat leaders attend the funeral of killed militants, eulogise them as ‘martyrs’, hail their anti-India activities as ‘gallant’ and deliver speeches against the Government of India and motivate the youth of Kashmir to join militancy for the so-called freedom of Kashmir by way of an armed struggle. They misguide the common man by spreading false propaganda against the Government of India.
11. To further this conspiracy, the Hurriyat leaders, the terrorists/ terror organizations and stone-pelters are working in tandem and they are getting financial and logistic support from Pakistan.” 26. The accusation and charge against the accused, including the respondent, is in paragraph 18 of the report which reads thus: “18. CHARGE: 18.1 In the instant case, there is sufficient evidence in the form of incriminating documents, statements of witnesses and digital evidence that establishes beyond any reasonable doubt that the accused persons i.e. the Hurriyat leaders, terrorists and stone-pelters have been orchestrating violence and unrest in Jammu & Kashmir as a part of well-planned conspiracy under the overall patronage and financial support of Pakistani Establishment and agencies and that all the accused persons were acting in pursuance of their common goal i.e. to achieve secession of the State of Jammu & Kashmir from the Union of India by waging a war against the Government of India. 18.2 The documentary evidences seized during various searches such as letters of the banned terrorist organizations seeking financial assistance from the Hurriyat leaders, blank letterheads of terror organisations, conversations between Hafiz Saeed @ Burhan Wani, Hafiz Saeed and Asiya Andrabi, support extended by Hafiz Saeed and Syed Salahuddin to the protest calendars issued by the Hurriyat leaders, all these show that Hurriyat and terror organizations are working hand in glove.
Their common objective is to attain secession of Jammu & Kashmir from the Union of India and to achieve this objective, they have established a network of cadres throughout Kashmir Valley who motivate and incite the youth to attack all symbols of Indian authority, especially Indian security forces who have been deployed there for the maintenance of law and order. To achieve their objective, they are mobilizing funds from all possible sources. They are getting funds from Pakistani Establishment through the Pakistan High Commission; the funds are being remitted to India from offshore locations through hawala and accused A-10 Zahoor Ahmad Shah Watali is an important conduit for the same. They are raising funds through local donations such as Zakaat & Betulmaal, etc. They are generating funds by resorting to illegalities and irregularities such as under-invoicing and cash-dealings in LoC barter trade.
All this money is used to fund stone-pelting, to support the families of killed and active militants and to help pellet victims and to fuel terrorism in Jammu & Kashmir with the ultimate objective of breaking Jammu & Kashmir away from the Union of India. 18.3 They are all working in sync to achieve their greater goal. The nexus between the Pakistani agencies, Hurriyat leaders and terror organizations is amply substantiated by the chats retrieved from their email accounts, WhatsApp, Facebook profiles and Websites and also from the statements of the protected witnesses. Their nexus with hawala conduit, Zahoor Watali is also substantiated by the documentary and digital evidence. 18.4 Though the Constitution of Jammu & Kashmir, 1957, declares the State of Jammu & Kashmir to be an integral part of India, and the said pronouncement is irrevocable, the accused persons have been incessantly engaged in violence and carrying out subversive and secessionist activities in Jammu & Kashmir by waging a war against the Government of India. 18.5 Hence, as discussed in the foregoing paras, the evidence collected during investigation, prima facie, establishes a case against all the accused persons for conspiring to wage war against the Government of India by way of establishing a network of cadres of banned terrorist organizations LeT & HM as well as cadres in the garb of so-called political front viz., the All Parties Hurriyat Conference. 18.6 The scrutiny of the documents and the recovery from the digital devices have provided a large data of incriminating material in which the above accused A-3 to A-12 are a part of a gang who with the help of A-1 & A-2 and others collaborate and coordinate with each other to form strategies and action plan to launch massive violent protests, hartaals, bandhs, strikes, processions, demonstrations during which stone pelting is organised on security forces and government establishments.
These documents and digital evidences clearly indicates an action plan to instigate general public to observe strikes, hold anti-India protests through press releases, social media and use of Immams and mosques. The recovery of protest calendars from A-4 and the direct impact of such orchestrated protests have led to enormous loss of life and prop- erty which have been explained in detail. 18.7 The investigation have revealed linkage of A-1 and A-2 with A-3 to A-12 in a web of directions being passed through e-mails, SMSs, WhatsApp, videos and other means of com- munication to form a clear nexus between the above accused and the leaders of Hurriyat Conference. The recovery of a number of incriminating videos in which the separatists leaders and accused are exhorting the general public, sympathizing with the militants, seeking support and donations to carry out militant activities and instigating general public, especially youth to raise a revolt and launch violence against security forces and wage a war against Government of India, is clearly established. 18.8 The secessionists, especially the leaders of the Hurriyat Conference and the accused are a part of the terrorist designs to raise funds to propagate their ideology and agenda of secessionism and subversive activities prejudicial to the law of the land.
The investigations have clearly brought out that the Hurriyat has formed a well-developed network of cadres with district presidents, block level leaders and workers who collect donations from public, businessmen, apple growers and draw gains from profits of unregulated LoC trade. The money is routed through a complex system of hawala transfers and cash couriers using conduits such as A-10 who gathers money from Pakistan High Commission in New Delhi and through fake and bogus companies floated in UAE and other countries and delivers the funds to the Hurriyat leadership for subversive activities. The documents recovered and statements of witnesses to that effect also clearly establish the mechanism of funding and complicity of the accused in generating funds for its further use in organizing violent protests, assistance to the militants and creating an atmosphere of terror, chaos and uncertainty. 18.9 During the investigation about the past conduct of the accused, it is ascertained that as A-1 is a designated terrorist being the head of proscribed terror organisation Lashker-e-Toiba, A-2 is the head of proscribed organisation Hizb-Ul-Mujahideen.
A-3, A-4, A-5, A-6, A-8, A-9 are former militants with various cases of terrorism against them and have been detained under the Public Safety Act on numerous occasions. A-10 is a known hawala dealer and financer and has a number of cases against him which are being investigated by sister investigation agencies. 18.10 The CDR Linkages and technical analysis of social media clearly establish that the accused A-3 to A-10 are in constant communication with each other and there is a clear meeting of minds of the above accused in hatching the conspiracy with the support of A-1 and A-2 as well as other secessionist leaders of the Hurriyat Conference and other proscribed terrorist organizations of Jammu & Kashmir. 18.11 This case is a terror conspiracy case in which the terrorist act is not a single act of terror like an incident or series of incidents. It is a terrorist act as defined under UA (P) Act-1967 wherein the intention is to threaten the unity, integrity and sovereignty of India by striking terror in the people or any section of people in India by overawing by means of criminal force or show of criminal force causing death of any public functionary or attempts to cause death of any public functionary.
The terrorist gang of the accused above, have also committed terrorist act as they have disrupted the essential services and daily life of the citizenry of Jammu & Kashmir and have caused damage and destruction of property in India intended to be used in connection with any other purpose of the Government of India, any State Government or any of their agencies. 18.12 The analysis of documentary evidences seized during the searches, the statement of witnesses and the incriminating material recovered from the digital media seized from the accused clearly bring out the fact that with the active support and connivance of Pakistani establishments, Pakistani agencies, terrorist groups operating from Pakistani soil, the above accused have hatched a criminal conspiracy to engage in violence and carry out subversive and secessionist activities in Jammu & Kashmir and to achieve their objectives, have established a network of cadres who are funded through Pakistani agencies via hawala dealers, local conduits and also by raising funds through local donations and by generating illegal profits through the barter LoC trade.
The accused have used these funds for organised stone pelting through a set charter of protests and demonstrations which are issued in the form of “protest calendars” on regular basis resulting in an atmosphere of chaos, terror, uncertainty and fear in the State of Jammu & Kashmir. The main aim and objective of this entire conspiracy is to secede the State of Jammu & Kashmir, which is an integral part of India, from the Union of India and wage war against the Government of India to meet the objectives. 18.13 Hence, the accused persons are liable for prosecution under the following sections of law:- Accused Name of Accused Liable for prosecution under sections of law A-1 Hafiz Muhammad Saeed section 120B, 121, 121A &124A of IPC, section 13, 16, 17, 18, 20, 38, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-2 Mohd. Yusuf Shah @ Syed Salahuddin section 120B, 121, 121A & 124A of IPC, section 13, 16, 17, 18, 20, 38, 39 & 40 of Unlawful Activities (Prevention) Act, 1967.
A-3 Aftab Ahmad Shah @ Aftab Hilali Shah @ Shahid-ul-Islam section 120B, 121, 121A & 124A of IPC, section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-4 Altaf Ahmad Shah @ Fantoosh section 120B, 121, 121A & 124A of IPC, section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-5 Nayeem Ahmad Khan section 120B, 121, 121A & 124A of IPC, section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-6 Farooq Ahmad Dar @ Bitta Karate section 120B, 121, 121A & 124A of IPC, section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-7 Md. Akbar Khanday section 120B, 121, 121A & 124A of IPC, section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-8 Raja Mehrajuddin Kalwal section 120B, 121, 121A & 124A of IPC, section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967.
A-9 Bashir Ahmad Bhat @ Peer Saifullah section 120B, 121, 121A & 124A of IPC, section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities (Prevention) Act, 1967. A-10 Zahoor Ahmad Shah Watali section 120B, 121, 121A & 124A of IPC, section 13, 16, 17, 18, 20, 39 & 40 of Unlawful Activities(Prevention) Act,1967. A-11 Kamran Yusuf section 120B, 121 & 121A of IPC, section 13, 16, 18 & 20 of Unlawful Activities (Prevention) Act, 1967. A-12 Javed Ahmad Bhat section 120B, 121 & 121A of IPC, section 13, 16, 18 & 20 of Unlawful Activities (Prevention) Act, 1967. 18.14 The sanction for prosecution under section 45(1)(i)(ii) of the UA (P) Act in respect of the accused persons for the offences under section 13, 16, 17, 18, 20, 38, 39 and 40 of the UA (P) Act and under section 196 CrPC for the offences under section 121, 121A and 124A of IPC has been accorded by the Ministry of Home Affairs, Government of India vide order No.11011/26/2017/IS-IV dated 16th January, 2018.
The sanction for prosecution under section 188 CrPC has also been accorded by Government of India vide order No.11011/26/2017/IS-IV dated 16th January, 2018 for the offences committed outside of India. 18.15 It is therefore, prayed that, the Hon’ble Court may please take cognizance of the offences under sections 120B, 121, 121A & 124A of the IPC, sections 13, 16, 17, 18, 20, 38, 39 & 40 of the Unlawful Activities (Prevention) Act, 1967 in respect of the accused A-1 to A-12 (As per the mentioned in para 18.13), issue process to the accused persons and try the aforesaid accused persons and punish them in accordance with law.” (emphasis supplied in italics and bold) 27. The charge against respondent is not limited to Section 17 of the 1967 Act regarding raising funds for terrorist acts but also in reference to Sections 13,16,18,20,38,39 and 40 of the 1967 Act. Section 13 is in Chapter II of the 1967 Act.
The special provisions regarding bail under Section 43D(5), however, are attracted in respect of the offences punishable under Chapters IV and VI, such as Sections 16,17,18,20,38,39 and 40 of the 1967 Act. Sections 39 and 40 form part of Chapter VI, whereas other sections (except Section 13) form part of Chapter IV to which the subject bail provisions are applicable, mandating the recording of satisfaction by the Court that there are reasonable grounds for believing that the accusation against such person is prima facie true. 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 30th August, 2017 and 1st 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. Regarding the funding of terrorist activities in J & K and, in particular, the involvement of the respondent (Accused No.10), the charge-sheet mentions as under: “17.6 Funding of Secessionist and Terrorist Activities in Jammu & Kashmir: If publicity and propaganda is oxygen for the terror groups, terror financing is its life-blood. Terror financing provides funds for recruitment, operationalization of training and training camps, procurement of arms and ammunition, operational cost of planning and resources for terrorist acts, running of underground networks, well-planned stone pelting, school burnings, targeted attacks, provision of legal support for terrorists and over-ground workers facing judicial process, ex-gratia payment for militants killed in terrorist operations, regular payments to the families of terrorists and militants killed or convicted, funds for propaganda to clergy as well as relief measures for civilian population and also in case of natural disasters. The investigation in the case has revealed that the secessionists are mobilizing funds from all possible sources to fuel unrest and support the on-going secessionist and terrorist activities in Jammu & Kashmir. 17.6.1 Funding from Pakistan: i) The Hurriyat leaders are receiving funds from Pakistan through conduits and also from the Pakistan High Commission directly. It was substantiated by an incriminating document seized from the house of Ghulam Mohd. Bhatt druing search. Ghulam Mohd. Bhatt worked as the cashier-cum-accountant with accused A-10 Zahoor Ahmad Shah Watali, a known Hawala conduit. The document clearly shows that accused A-10 Zahoor Ahmad Shah Watali was receiving money from Accused A-1 Hafiz Saeed (Head of Jamaat-ud-Dawa), from the ISI, from the Pakistan High Commission at New Delhi and also from a source based in Dubai. Accused A-10 was remitting the same to the Hurriyat leaders, separatists and stone-pelters of Jammu & Kashmir. The said document has been maintained in regular course of his business and is signed by accused Zahoor Watali himself. This document clearly shows that Hurriyat leaders were receiving funds from Pakistan through the officials of Pakistan High Commission and through accused A-10 Zahoor Watali. The signature of Accused A-10 Zahoor Watali has also been verified and as per the expert report, his signature on the questioned document matches with his specimen handwriting as well as his admitted handwriting. ii) Further, the role of Pakistan in funding secessionist activities also surfaced in the scrutiny of the un-edited version of the audio/video furnished by the office of India Today T.V. News Channel wherein accused A-5 Nayeem Khan admits that the secessionists and terrorists of the Valley are receiving financial support from Pakistan and would have received approximately Rs.200 crores to organise anti-India protests and agitations after the killing of Burhan Wani, the Commander of the proscribed terror organisation Hizb-ul-Mujahiddin. He further speaks about funds reaching them from Saudi Arabia/Dubai through Hawala via Delhi (Balimaran/Chandni Chowk). He admits that S.A.S. Geelani (Chairman, APHC-G), Mirwaiz Umar Farooq (APHC-M) and Yasin Malik (JKLF) are receiving funds from Pakistan.
He further admits the pivotal role played by the Pakistan High Commission to convey and receive instructions from Pakistan. Nayeem Khan also stated that the accused Hafiz Mohd Saeed has supported S.A.S. Geelani, Chairman, APHC-G by paying at least 10-12 crores during anti-India agitation after killing of Burhan Wani. Accused Nayeem Khan further admitted that, if funded, he can fuel unrest in the Valley any time. iii) Similarly, the scrutiny of the audio/video of the sting operation also reveals accused A-6 Farooq Ahmad Dar Bitta Karate admitted that the funds are being sent by Pakistan to the secessionists and terrorists in the Kashmir Valley including him for organizing forcible closures, anti-India protests and processions and stone-pelting on the security forces. He further claimed that he has his cadres in every part of Kashmir who can act on his call at any given point of time and fuel unrest in the Valley.
When given an offer of financial support, accused Bitta Karate put forth a demand of Rs.70 crores for fuelling unrest upto six months. The voice samples of Nayeem Khan and Farooq Ahmad Dar @ Bitta Karate have been forensically examined and the CFSL report has confirmed the match with their voices. iv) Further, the investigation has revealed that the senior-most officials of the High Commission of Pakistan were in regular con- tact with the Hurriyat leaders. The High Commission of Pakistan in New Delhi used to organise functions and meetings in New Delhi, to which the Hurriyat leaders from Kashmir were invited and they were given instructions and funds on a regular basis. These funds were given to various allied groups of the APHC and investigation have revealed that a First Secretary level officer of Pakistan High Commission in New Delhi would act as a channel and A-10 Zahoor Ahmed Shah Watali would act as a courier to deliver the funds to the Hurriyat leadership.
These funds as explained above were used to foment the secessionist and separatist activities and unrest in the valley in an organized manner. One such invitation card from the Pakistan High Commission was seized from the house of A-6 Farooq Ahmad Dar @ Bitta Karate:- On the occasion of the National Day Pakistan High Commissioner and Mrs. Salman Bashir Request the pleasure of the company of Mr. Farooq Ahmed Dar At a Reception on Friday, 22 March 2013 from 1930 to 2100 hrs. Venue: R.S.V.P. 2/50-G, Shantipath, Tel. 011-24121819 Chanakyapuri, New Delhi Fax 011-26872339 Dress:National/Lounge Suit/Uniform E-mail:pakhcnd@gmail.com (Please bring this card with you) Investigation has also established that the accused A-4 was in direct contact with the High Commissioner of Pakistan in New Delhi and would apprise him about the situation in Jammu & Kashmir. 17.6.2 Funding from Terrorist Organisations based in Pakistan: During the course of investigation, it is also ascertained that the separatists and secessionists of Jammu & Kashmir were also receiving money from the terrorists and terrorist organizations operating out of Pakistan/PoK.
The incriminating document seized from the house of Ghulam Mohd. Bhatt who worked as a cashier-cum-accountant with accused A-10 Zahoor Watali shows that Zahoor Watali received money from accused A-1 Hafiz Saeed, Head of JuD and Chief of proscribed terror organisation Lashkar-e-Toiba and remit- ted it to the Hurriyat leaders espousing the cause of seces- sion of Jammu & Kashmir from the Union of India. 17.6.3 Local Donations/Zakat/Baitulmal: During the course of investigation, it is established that the Hurriyat has its network of cadres at districts and local levels. There are District Presidents and block level leaders who have the responsibility to raise the funds through donation during the religious festivals and month of Ramzan. In a well-established system, the receipt books are printed and funds are collected from shopkeepers, businessmen and residents of Kashmir. The money is also collected to become a member of the Tehreek-e-Hurriyat.
Selected members are made as Rukuns and are tasked to propagate the separatist ideology of Hurriyat. These Rukuns act as foot soldiers and ensure that bandhs and hartaals are successful. They also lead the processions and participate in stone pelting. Investigation also established that various District Presidents collect Rs.5 to 10 Lac per district as Baitulmal. Funds are also collected from apple-growers and businessmen who are compelled to donate to Hurriyat central office. This money is used for administrative and operational purposes of organizing protests and strikes as well as for aid to militants and their families. The seizure of unaccounted receipts of an amount of Rs.1,15,45,000/- from accused A-4 Altaf Ahmad Shah Fantoosh also shows that money is being raised by way of donations. Similarly, records pertaining to the collection of funds were also seized from the house of accused A-8 Mehrajuddin Kalwal, who was also the District President of Tehreek-e-Hurriyat for Srinagar and Ganderbal.
Further, during the course of investigation, it is also established that the Hurriyat leadership appeals to the public to contribute money generously by way of donations for their so-called freedom movement. This is clearly reflected in the Website of the Hurriyat Conference viz. www.huriyatconference.com, which shows a message from S.A.S. Geelani “Help the families of martyrs and prisoners….. people should come forward for donations in the month of Ramadan as the number of people affected by this movement is large”. This substantiates that Hurriyat is raising funds through donations and using the same to fuel secessionist activities and to support the families of killed and jailed terrorists. 17.6.4 LOC Trade: During the course of investigation, it has been established that the secessionist and separatist leaders are raising funds through LoC trade by way of directing the Kashmiri traders to do under-invoicing of the goods which were imported through LoC barter trade.
They sell the goods to the traders in Delhi and a part of the profit of the same is shared with the Hurriyat leaders and other separatists, which in turn is used on anti-India propaganda, for mobilizing the public to organise protests and stone-pelting and to support families of killed/jailed militants. The hawala operators based in Srinagar, New Delhi and other parts of the country and abroad are being used to transfer the funds so generated. The investigation has revealed that the funds are generated by resorting to sale of third-party goods, under-weighing, under-invoicing, large-scale dealings in cash and committing irregularities in maintenance of records. This modus-operandi leads to generation of huge cash surpluses on the Indian side which are then channelized through several formal banking channels as well as cash couriers and hawala dealers to the separatists and secessionists active in Jammu & Kashmir.
Investigation has revealed that a significant number of traders engaged in cross LoC trade have relatives across the border who are closely associated with banned terrorist organizations, especially Hizb-Ul-Mujahideen. Investigation has also revealed that certain ex-militants and their family members are using proxy companies and are registered as traders. During the course of investigation, use of LoC trade route for smuggling of contraband and weapons has also come to light. A separate investigation is underway regarding the irregularities in the LoC trade. 17.6.5 Hawala: Apart from the above mentioned sources and channels, the secessionists depend heavily on the hawala network and conduits to bring money from off-shore locations to India to fuel-anti-India activities in Jammu & Kashmir. i)During the course of investigation, it was ascertained that accused A-10 Zahoor Ahmad Shah Watali is one such conduit.
The seizure of the incriminating document from the house of his cashier-cum-accountant viz. Ghulam Mohd. Bhatt regarding the foreign contributions received by Zahoor Ahmad Shah Watali from Paskistani establishment and terror organizations and their further remittance to the Hurriyat leaders and secessionists of Jammu & Kashmir clearly shows that he was an active channel to transmit funds from abroad to India to fuel secessionist activities and to wage a war against the Government of India. ii) During the course of investigation, it is revealed that accused A-10 Zahoor Ahmad Shah Watali was bringing money from off-shore locations to India by layering it through the scores of firms and companies he has opened. It was ascertained that Zahoor Ahmad Shah Watali has an NRE A/c No.0252040200000505 in J&K Bank and he received foreign remittances to the tune of Rs.93,87,639.31/- in this account from 2011 till 2013 from unknown sources. iii) During the course of investigation, it was also ascertained that the accused Zahoor Ahmad Shah Watali was showing foreign remittances under ‘other income’ in his proprietorship firm viz. Trison International, Srinagar.
From the analysis of his bank accounts, it has been ascertained that foreign remittances to the tune of Rs.2,26,87,639.31 were received by the accused Zahoor Ahmad Shah Watali in different accounts from the year 2011 to 2016. An amount of Rs.93,87,639.31/- came in Zahoor Ahmad Shah Watali A/c No.NRE-0252040200000505 in J&K Bank from 2011 to 2013. An amount of Rs.14 lakh was remitted in the account of Acharya Shri Chander College of Medical Sciences (ASCOMs), Jammu account No.1213040100000229 on 09.04.2013 through NEFT against fee deposited for his son, viz., Yawar Zahoor Shah Watali. An amount of Rs.60 lakh was remitted in current account of accused Zahoor Ahmad Shah Watali in J&K Bank A/c No.CD4508. An amount of Rs.5 lakh was remitted in the account of Trison Farms & Constructions Pvt. Ltd. A/c OTN-10162. The investigation has revealed that all these foreign remittances are from unknown sources. iv) During the course of investigation, it was also revealed that on 07.11.2014, one Naval Kishore Kapoor, son of Om Prakash Kapoor, resident of P.O.
Box-8669, Aman, U.A.E. entered into an agreement with Trison Farms and Constructions Pvt. Ltd. through its Managing Director Zahoor Ahmad Shah Watali to take a piece of land measuring 20 Kanals in Sozeith Goripora Nagbal, Budgam on lease in consideration of an amount of Rs.6 crore as premium and Rs.1000/- annual rent for an initial period of 40 years extendable as may be mutually agreed between the parties. In the agreement, M/s Trison Farms and Constructions Pvt. Ltd. was declared to be the absolute owner of the piece of land in question. Mr. Naval Kishore Kapoor remitted a total amount of Rs.5.579 crores in 22 instalments between 2013 and 2016 to the accused Zahoor Ahmad Shah Watali. v) During the course of investigation, it was ascertained that no land exists in the name of M/s Trison Farms and Constructions Pvt. Ltd. as per the balance sheets of the said company. (AY 2011-12 to 2016-17).
It was also ascertained that the large sum of money i.e. Rs.5,57,90,000 was mobilized by Naval Kishore Kapoor from unkown sources and remitted to the accused Zahoor Ahmad Shah Watali over a period of 2 years to lease a piece of land which is not even existing in the name of the company mentioned as first party in the agreement and the agreement itself lacks legal sanctity. This proves that the said agreement was a ‘cover’ created by the accused Zahoor Ahmad Shah Watali to bring foreign remittances from unknown sources to India. vi) During the course of investigation, it is also ascertained that the Chartered Accountant, who signed the audited balance sheets of the firms belonging to the accused A-10 Zahoor Ahmad Shah Watali viz. M/s Trison International (2013-14 and 2015-16), Trison Farms & Constructions Pvt. Ltd. (2013-14 and 2015-16), M/s 3Y (2012-13, 2013-14 and 2015-16) and M/s Yasir Enterprises (2013-14 and 2015-16) did so without seeing any supporting documents.
The balance sheets of these companies were sent to him by one Mustaq Mir, Cost Accountant and Shabir Mir, Chartered Accountant from Wizkid Office, Srinagar through email and he was asked to sign on them in Delhi without showing any documents. This clearly shows that Zahoor Watali was remitting money received from unknown sources to India. vii) The investigation has also revealed that in the FY 2010-11, a firm belonging to accused A-10 Zahoor Ahmad Shah Watali and his family members viz., Trison Farms and Constructions Pvt. Ltd. raised unsecured loan of Rs.2,65,55,532/- from the Directors of the company, i.e. the accused Zahoor Ahmad Shah Watali, his wife Sarwa Begum and his sons Yassir Gaffar Shah, Yawar Zahoor & Yamin Zahoor in the form of both cash and cheque and the same was used towards repayment of 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 accused Zahoor Ahmad Shah Watali. viii) The seizure from the house of accused A-10 Zahoor Ahmad Shah Watali, of a list of ISI officials and a letter from Tariq Shafi, proprietor of AI Shafi group addressed to Pakistan High Commission recommending grant of visa to Zahoor Watali shows his proximity with Pakistani establishment.
It is pertinent to mention here that the name of Tariq Shafi figures in the document of foreign contributions seized from the house of Zahoor Watali’s cashier-cum- accountant viz., Ghulam Mohd. Bhatt.” (emphasis supplied in italics and bold) 29. 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 3rd 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 contact “Tariq Shafi 0092425765022…26A” whose name figures in document D-132(a)/23.
The Code “0092” pertains 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, “Tariq Shafi 00923008459775/ 0092425765022”. 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 3rd 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 of- fence 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 of “discharge”. In 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 of- fence 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 are “no reasonable grounds” for 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. 32. In the case of Hitendra Vishnu Thakur (supra), the Court was called upon to consider the following questions as noted in the opening paragraph of the judgment, viz.: “In this batch of criminal appeals and special leave petitions (criminal) the three meaningful questions which require our consideration are: (1) When can the provisions of Section 3(1) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as the TADA) be attracted? (2) Is the 1993 Amendment, amending Section 167(2) of the Code of Criminal Procedure by modifying Section 20(4)(b) and adding a new provision as 20(4)(bb), applicable to the pending cases i.e. is it retrospective in operation? and (3) What is the true ambit and scope of Section 20(4) and Section 20(8) of TADA in the matter of grant of bail to an accused brought before the Designated Court and the factors which the Designated Court has to keep in view while dealing with an application for grant of bail under Section 20(4) and for grant of extension of time to the prosecution for further investigation under clause (bb) of Section 20(4) and incidentally whether the conditions contained in Section 20(8) TADA control the grant of bail under Section 20(4) of the Act also? We shall take up for consideration these questions in seriatim” The focus essentially was on matters relevant for consideration of application for bail on the ground of default in filing the charge-sheet within the statutory period.
Indeed, one of the questions was about the scope of the provisions relating to grant of bail in respect of offence punishable under special enactment TADA. That has been discussed in paragraphs 13 and 14 of the reported judgment, which reads thus: “13. We would, therefore, at this stage like to administer a word of caution to the Designated Courts regarding invoking the provisions of TADA merely because the investigating officer at some stage of the investigation chooses to add an offence under same (sic some) provisions of TADA against an accused person, more often than not while opposing grant of bail, anticipatory or otherwise. The Designated Courts should always consider carefully the material available on the record and apply their mind to see whether the provisions of TADA are even prima facie attracted.
14. The Act provides for the constitution of one or more Designated Courts either by the Central Government or the State Government by notification in the Official Gazette to try specified cases or class or group of cases under the Act. The Act makes every offence punishable under the Act or any rule made thereunder to be a cognizable offence within the meaning of Section 2(c) of the CrPC. The Act vests jurisdiction in the Designated Court to try all such offences under the Act by giving precedence over the trial of any other case against an accused in any other court (not being a Designated Court) notwithstanding anything contained in the Code or any other law for the time being in force. The conferment of power on the Designated Courts to try the offences triable by them, punishable with imprisonment for a term not exceeding three years or with fine or with both, in a summary manner in accordance with the procedure prescribed in the CrPC notwithstanding anything contained in Section 260(1) or 262 CrPC by applying the provisions of Sections 263-265 of the Act is a marked departure.
The right of appeal straight to the Supreme Court against any judgment, sentence or order not being an interlocutory order vide Section 19(1) of the Act demonstrates the seriousness with which Parliament has treated the offences under TADA. An onerous duty is therefore cast on the Designated Courts to take extra care to scrutinise the material on the record and apply their mind to the evidence and documents available with the investigating agency before charge-sheeting an accused for an offence under TADA. The stringent provisions of the Act coupled with the enhanced punishment prescribed for the offences under the Act make the task of the Designated Court even more onerous, because the graver the offence, greater should be the care taken to see that the offence must strictly fall within the four corners of the Act before a charge is framed against an accused person. Where the Designated Court without as much as even finding a prima facie case on the basis of the material on the record, proceeds to charge-sheet an accused under any of the provisions of TADA, merely on the statement of the investi- gating agency, it acts merely as a post office of the investigating agency and does more harm to meet the challenge arising out of the ‘terrorist’ activities rather than deterring terrorist activities.
The remedy in such cases would be worse than the disease itself and the charge against the State of misusing the provisions of TADA would gain acceptability, which would be bad both for the criminal and the society. Therefore, it is the obligation of the investigating agency to satisfy the Designated Court from the material collected by it during the investigation, and not merely by the opinion formed by the investigating agency, that the activity of the ‘terrorist’ falls strictly within the parameters of the provisions of TADA before seeking to charge-sheet an accused under TADA. The Designated Court must record its satisfaction about the existence of a prima facie case on the basis of the material on the record before it proceeds to frame a charge-sheet against an accused for offences covered by TADA. Even after an accused has been charge-sheeted for an offence under TADA and the prosecution leads evidence in the case, it is an obligation of the Designated Court to take extra care to examine the evidence with a view to find out whether the provisions of the Act apply or not.
The Designated Court is, therefore, expected to carefully examine the evidence and after analysing the same come to a firm conclusion that the evidence led by the prosecution has established that the case of the accused falls strictly within the four corners of the Act before recording a conviction against an accused under TADA.” Again, in paragraph 22 of the said judgment, the Court observed thus: “22. ….The two provisions operate in different and independent fields. The basis for grant of bail under Section 20(4), as already noticed, is entirely different from the grounds on which bail may be granted under Section 20(8) of the Act. It would be advantageous at this stage to notice the provisions of Section 20(8) and (9) of the Act. ‘(8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless— (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.
(9) The limitations on granting of bail specified in sub-section (8) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail.’ As would be seen from the plain phraseology of sub-section (8) of Section 20, it commences with a non obstante clause and in its operation imposes a ban on release of a person accused of an offence punishable under TADA or any rule made thereunder on bail unless the twin conditions contained in clauses (a) and (b) thereof are satisfied. No bail can be granted under Section 20(8) unless the Designated Court is satisfied after notice to the public prosecutor that there are reasonable grounds for believing that the accused is not guilty of such an offence and that he is not likely to commit any offence while on bail. Sub-section (9) qualifies sub-section (8) to the extent that the two conditions contained in clauses (a) and (b) are in addition to the limitations prescribed under the Code of Criminal Procedure or any other law for the time being in force relating to the grant of bail.
Strictly speaking Section 20(8) is not the source of power of the Designated Court to grant bail but it places further limitations on the exercise of its power to grant bail in cases under TADA, as is amply clear from the plain language of Section 20(9). The Constitution Bench in Kartar Singh case19 while dealing with the ambit and scope of sub-sections (8) and (9) of Section 20 of the Act quoted with approval the following observations from Usmanbhai case20: (SCC p. 704, para 344) ‘Though there is no express provision excluding the applicability of Section 439 of the Code similar to the one contained in Section 20(7) of the Act in relation to a case involving the arrest of any person on an accusation of having committed an offence punishable under the Act or any rule made thereunder, but that result must, by necessary implication, follow. It is true that the source of power of a Designated Court to grant bail is not Section 20(8) of the Act as it only places limitations on such power.
This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are ‘in addition to the limitations under the Code or any other law for the time being in force’. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is ‘a court other than the High Court or the Court of Session’ within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act.’ and went on to add: (SCC p. 704, para 345) ‘Reverting to Section 20(8), if either of the two conditions mentioned therein is not satisfied, the ban operates and the accused person cannot be released on bail but of course it is subject to Section 167(2) as modified by Section 20(4) of the TADA Act in relation to a case under the provisions of TADA.’ Thus, the ambit and scope of Section 20(8) of TADA is no longer res integra and from the above discussion it follows that both the provisions i.e.
Section 20(4) and 20(8) of TADA operate in different situations and are controlled and guided by different considerations.” 33. 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 inde- pendent 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, 21 (1995) 1 SCC 574 (para 60) 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. 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. 38. Accordingly, this appeal succeeds. The impugned judgment and order is set aside and, instead, the order passed by the Designated Court rejecting the application for grant of bail made by the respondent herein, is affirmed. 39. All pending applications are also disposed of. Divya Pandey Appeal allowed.