UAPA | Terror Funds Received Directly From Pak, Accused Not Automatically Entitled To Bail Due To Prolonged Custody: J&K&L High Court

The Jammu & Kashmir and Ladakh High Court has held that prolonged custody of more than five years under the Unlawful Activities (Prevention) Act, 1967 does not automatically entitle an accused to bail when the prosecution has prima facie material demonstrating his direct involvement in raising and distributing terror funds, receiving money from Pakistan-based LeT handlers, and facilitating arms and ammunition for militant activities.The Court clarified that while Section 43-D(5) does not oust constitutional courts' power to grant bail in cases of delayed trial, the same cannot be invoked where the accused has been charge-sheeted and the allegations are not peripheral or fanciful.The Court was hearing an appeal against the order passed by the 3rd Additional Sessions Judge (Designated Court under UAPA), Jammu, which had denied bail to the appellant facing trial in FIR for offences under Sections 17, 18, 20, 21, 38 and 40 of the UAPA. The appellant, a Junior Engineer working under a “Self Help Group”, had been in custody since July 2020.The Division Bench of Justices Sanjeev Kumar and Justice Sanjay Parihar observed, “Mere delay in trial pertaining to grave offences cannot, by itself, be used as a ground to grant bail. Reliance upon K.A. Najeeb (supra), Shiekh Javid Iqbal (supra), and Vernon vs. State of Maharashtra is, therefore, misplaced, as the facts and circumstances of those cases are entirely different. The appellant is not shown to be a mere sympathizer, but is prima facie shown to be directly involved in acts not only of preparation, but also of receiving funds for furthering such activities.”The appellant along with co-accused was formally charged by the trial court for offences under Sections 17, 18, 20, 21, 38 and 40 of the UAPA. According to the prosecution, the appellant was a member of a LeT module and had collected funds for executing terrorist activities in the Doda area. He was in touch with a Pakistan-based LeT handler. It was also alleged that money was transferred to the appellant from the handler for further distribution among LeT cadre. The prosecution cited 107 witnesses, of whom 28 had been examined by the time of the bail hearing.The appellant contended that the case was built solely on his disclosure statement (which has no evidentiary value), that no recovery was effected from him, and that he had no connection with any terrorist organization. He also argued that the trial would not conclude soon due to the large number of witnesses, and that his custody for more than five years entitled him to bail.Court's Observation:The Court noted that the offences under Chapters IV and VI of the UAPA attract the bar under Section 43-D(5), which requires the court to record satisfaction that there are reasonable grounds for believing that the accusations against the accused are prima facie true before granting bail. The Court observed that the very framing of charge against the appellant reinforced the prosecution's assertion that there was prima facie sufficient material warranting trial.The Court examined the material on record, including the bank statement of the appellant's SBI account which reflected a transfer of ₹83,847.58/- from the account of Haroon (the Pakistan-based LeT handler). The court remarked, “… During the course of hearing, learned counsel for the appellant was not able to explain the legality of this transaction. The said Haroon, as per the charge-sheet, is stated to be across the border and is alleged to have handled the activities of LeT in the Doda area through the accused. Thus, the prosecution case is not based only upon the disclosure statement of the appellant, but also upon the aforesaid monetary transaction”The Court also noted that the appellant was alleged to have paid ₹20,000/- out of the received funds for arms and ammunition, and that he had purchased SIM cards and received grenades for furthering terrorist activities.Distinguishing the judgments relied upon by the appellant, the Court held that in K.A. Najeeb and Vernon, the facts and circumstances were entirely different. The appellant was not a mere sympathizer or a peripheral figure, the court said and added that he was prima facie directly involved in receiving and utilizing funds for terrorist acts. The Court observed that the allegation was not merely that he received funds, but that he was privy to their utilization for purchase and distribution of arms.Regarding the delay in trial, the Court held that mere custody of five years by itself could not persuade it to exercise discretion for grant of bail, given the nature and seriousness of the crime. The Court observed that the appellant had not demonstrated that the delay was being occasioned by the prosecution through failure to produce evidence in time. “… As many as twelve accused have been put to trial in the present case, and it has also been pointed out that even supplementary linkage is being explored. In that background, mere custody of five...

UAPA | Terror Funds Received Directly From Pak, Accused Not Automatically Entitled To Bail Due To Prolonged Custody: J&K&L High Court

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