Jammu & Kashmir High Court
Majid Ali Sheikh And Others vs Union Territory Of J&K And Another on 3 May, 2024
Bench: Tashi Rabstan, Puneet Gupta
Sr. No. 01
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual Mode)
Case: CrlA(D) No.15/2023
CrlM No.785/2023
c/w
Crl Ref(L) No.5/2023
Majid Ali Sheikh and others ..... Appellant(s)
Through :- Mr. Sunil Sethi, Sr. Advocate with
Mr. Nitin Parihar, Advocate
Vs
Union Territory of J&K and another .....Respondent(s)
Through :- Ms. Monika Kohli, Sr. AAG
CORAM:
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
03.05.2024 CrlM No.785/2023 in CrlA(D) No.15/202S3
01. The appellants have filed an appeal against the judgment of conviction dated 08.04.2023 and order of sentence dated 24.04.2023 passed by the Court of learned 3rd Additional Sessions Judge, Jammu (Special Judge under Section 22 of the NIA Act) whereby the appellants have been convicted for the commission of offence under Sections 17 and 21 of UA(P) Act. The appellants have been sentenced to undergo rigorous imprisonment for life with fine to the same of Rs.10,000/- each for commission of under Section 17 Unlawful Activities and rigorous imprisonment for life with fine of Rs.10,000/- each for commission of under Section 21 of the Act. Both the sentences awarded to the appellants have been directed to run concurrently.
2 CrlM No.785/2023 in CrlA(D) No.15 of 2023
02. The appellants have also been filed an application for stay of judgment of conviction and sentence and grant of bail till the appeal is finally decided. It is submitted that there is no evidence against the appellants of their involvement in case in hand.
03. The status report to the application has been filed wherein the application has been opposed by the respondents. The respondents have given the summary of the events that took place in the matter.
04. Mr. Sunil Sethi, learned senior counsel appearing for the appellants has argued that the conviction is based upon no evidence against the appellants. The main accused in the case are no more in picture as they were either discharged or not found during the course of investigation and the trial. The accused in the case who is stated to have been the actual supplier of the money which is allegedly recovered by the police during the course of investigation has been discharged and the person to whom the said money was to be provided has died in police encounter. The other accused-Javed Ahmed Wani, from whom the accused are alleged have been received the money in order to hand over the same to the Masood Ahmad Natnoo has not been traced as yet and has been proceeded under Section 512 Cr.P.C. The said Masood Ahmad Natnoo has died in encounter.
05. Ms. Monika Kohli, learned Sr. AAG has vehemently argued that the accused have been held guilty after they faced trial. The trial Court meticulously marshalled the evidence brought on record. The appellants have involved themselves in the terrorist activity as they became handlers of the financial assistance which was to be used for terrorist purposes. 3 CrlM No.785/2023 in CrlA(D) No.15 of 2023
06. The accused cannot seek suspension of sentence and grant of bail as a matter of right. The trial Court has after going through the evidence brought on record convicted the appellants and sentenced has them to rigorous imprisonment for life. The sentence can be stayed and the judgment and sentence can be suspended and the accused can be granted bail provided the Court is convinced that there is fair chances of the appellants-convicts being acquitted in the appeal. The Court has to satisfy prima facie that the judgment cannot stand the test of law.
07. The case setup against the appellants is, in short, that while travelling in maruti van bearing registration No.JK02-J-1505 on 29.12.2004 they were intercepted on the inputs provided by the Northern Command Counter Intelligence Unit to the police station Bari Brahmana and on the checking of the vehicle in question a sum of Rs.9,38,000/- were recovered which were hidden between the inner panels of the door of the vehicle. The investigation revealed that the appellants had received this amount from the co-accused Javed Ahmed Wani from Delhi and this amount was handed over by co-accused-Santosh Pathak to the said Javed Ahmad Wani. This amount was to be ultimately given to Masood Ahmed Natnoo, who is a well-known active terrorist of HM and Commander of the area. As stated above Masood Ahmed Natnoo got killed during encounter with security force in Doda district and the accused Javed Ahmed Wani has been proceeded under Section 512 Cr.P.C. Santosh Pathak, who is stated to have handed over the money to accused-Javed Ahmed Wani stands discharged at the time of framing of the charges. During the course of 4 CrlM No.785/2023 in CrlA(D) No.15 of 2023 investigation, the investigators also obtain call records of the accused persons.
08. Learned counsels for both the sides have taken the Court through the judgment in order to support their respective arguments.
09. No doubt the appellants have been handed over rigorous imprisonment for life by the trial Court. However, the Court is of the considered view that the judgment is required to be suspended and the accused granted bail irrespective of the sentence given by the trial Court for the reasons hereinafter mentioned.
10. Admittedly, Santosh Pathak who had allegedly given the money in question to Javed Ahmed Wani has been discharged by the trial Court at the time of framing of charges. No appeal/revision has been filed by the State against the order of discharged of Santosh Pathak. The accused, who is alleged to have handed over the amount to the appellants has not been apprehended during the investigation and the trial Court has proceeded against him under Section 512 Cr.P.C. Of course, these two accused were key players in the accused as per the case setup against them. Santosh Pathak, who is stated to have handed over the money to Javed Ahmed Wani, one of the accused in the challan, having been discharged the case of the prosecution appears to be on a weak wicket. Of course, the trial Court has held that the money in question is prove to have been recovered from the panels of the windows of the car seized by the police. The trial Court on the basis of aforesaid seizure of the amount from the panels of the windows of the vehicle have assumed that the money was meant for terrorist activity. The call records have been taken into consideration by the 5 CrlM No.785/2023 in CrlA(D) No.15 of 2023 trial Court for also holding the appellants guilty of the offence in which they faced charges. The much reliance on the call records by the trial Court for holding the accused guilty is again doubtful and needs consideration in the appeal. The reasons given in the judgment for holding the accused guilty of the offence appear to be more on assumption and presumption instead of relevancy of the evidence and also credibility of evidence produced by the prosecution.
11. The counsel for the appellants had also during the course of arguments submitted that the appellant had been on bail during course of trial and therefore the application should be allowed. Learned Sr. AAG has however, countered the argument of the appellants by stating that this cannot be the ground to allow the application. The trial Court has handed over the sentence to the appellants after assessing the evidence that was brought on file.
12. The appellants were granted bail as the challan was not produced within the statutory period. It may also be noted that it appears that the prosecution was not keen for the custody of the appellants during course of trial and that is why they never moved the trial Court seeking custody of the appellants on merits. The accused being on bail during the trial can be a factor which may weigh with the appellant Court while considering the application in hand. At the same time, it may be the sole reason to allow the application. The severity of punishment should not be the sole criteria for rejecting the application if the other circumstances do convince the Court that the the case for bail is made out.
6 CrlM No.785/2023 in CrlA(D) No.15 of 2023
13. The court is of the considered view that the reasons given by the trial Court to convict the appellants are prima facie not in tune with the evidence that has come on record. There is fair chance of the appellants being acquitted. In view of the same, the application is allowed. The judgment of conviction and sentence is stayed. The appellants are granted bail subject to furnishing of personal bond and surety to the tune of Rs.50,000/- each failing which they shall remain in custody. The appellants shall report to the concerned Police Station once in a month and provide details of their address and phone numbers to the police station.
14. The appellants shall not leave the jurisdiction of this Court without its prior permission.
15. List the main appeal for final consideration on 02.07.2024.
16. Registry is directed to prepare the paper and same be provided to counsel for the parties.
(PUNEET GUPTA) (TASHI RABSTAN)
JUDGE JUDGE
Srinagar
03.05.2024
Shammi