Punjab-Haryana High Court
Amir Nazir vs National Investigation Agency on 15 February, 2023
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
Neutral Citation No:=2023:PHHC:028360-DB
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-323-2022
Reserved on: 06.02.2023
Pronounced on: 15.02.2023
Amir Nazir
....Appellant(s)
Versus
National Investigation Agency (NIA)
.... Respondent(s)
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MS.JUSTICE HARPREET KAUR JEEWAN
Present: Mr. Bhanu Pratap Singh, Advocate, for the appellant.
Mr. S.S. Sandhu, Special Prosecutor
for the respondent-NIA.
*****
G.S. Sandhawalia, J.
Present appeal has been filed under Section 21 (4) of the National Investigation Agency Act, 2008 (for short '2008 Act') against the order of the Learned Sessions Judge, SAS Nagar, Mohali dated 25.03.2022, wherein the bail application was dismissed in case SC-91 of 2019 titled as NIA versus Fazil Bashir Pinchoo etc. RC- 39/2018/NIA/DLI dated 20.12.2018 under Sections 120-B, 121, 121 A, 122, 307, 506, 201 IPC, under Sections 16, 18, 20, 23 Unlawful Activities (Prevention) Act 1967 (for short '1967 Act') and under Sections 3, 6 Explosive Substances Act, 1908 registered as FIR No. 163 dated 15.09.2018 at Police Station: Division No.1, Jalandhar, of the appellant Amir Nazir who has been arrayed as A-3 by the Investigating Agency.
2. The reasoning given by the Learned Special Judge was that the present appellant is accused of facilitating the delivery of the 1 of 16 ::: Downloaded on - 30-05-2023 05:08:11 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 consignment four hand grenades to Fazil Bashir Pinchoo (A-1) and Shahid Quyoom (A-2) and was part of the conspiracy of carrying out grenade attack at the premises of Police Station Maqsuddan, Jalandhar on 14.09.2018. It was held that they were in contact with each other through secure means of communication and there was a strong prima facie case against the accused and charge had also been framed. The earlier bail application had been dismissed on 19.08.2019 and there was no change in the circumstances. Resultantly, keeping in view the gravity and nature of the offence involved in the present case, it was held that it was not inclined to grant the concession of bail to the accused/appellant in the second bail application.
3. Counsel for the appellant Mr. Bhanu Pratap Singh has taken us through the paper-book diligently and tried to convince us that the association with the main accused who were no longer alive and with A-1 and A-2 was only being mere acquaintances on account of the belonging to the same area being residents of Awantipora, District Pulwama, Jammu & Kashmir (J&K). The delivery of the grenades at Jalandhar was by one "Transporter" and the alleged allegation was that it was supposedly at the instructions of the appellant. It is submitted that the said "Transporter" as such had never been arrayed as accused and identified by the Investigating Agency. It is, thus, the case of the counsel that the attack was carried out at Police Station Maqsuddan, Jalandhar on 14.09.2018 by the accused Fazil Bashir Pinchoo (A-1), Shahid Quyoom (A-2), Rauf Ahmad Mir (A-
4) and Ummer Ramzan (A-5) and on the said date the location of the said appellant was not at Jalandhar and only arrested on 06.03.2019 from Awantipora at Pulwama. It was, accordingly, his contention that as per the charge-sheet he has been accused of causing explosion in the public places Page No.2 2 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 and attempted to wage war against the Government of India in September, 2018 and charged under Section 121 IPC and on the issue of conspiracy against the State under Section 121A IPC. Whereas the other charges against him were also regarding criminal conspiracy with the other accused to carry out the unlawful activities by causing the explosion at different places and causing grievous injuries and committing the offence under Section 18 of the 1967 Act.
4. It is further the case of the counsel for the appellant that there was no injury caused to anyone. Similarly, the charge was that the he was an active member of the Ansar Ghazwat-Ul-Hind (AGH) and, therefore, it was an offence under Section 20 of the 1967 Act but it was not an banned organization. The charge of causing similar explosion on the public place in September, 2018 and attempting to wage war against the Government of India, vide which incriminating evidence had been caused to be disappeared and that the offence under Section 201 IPC had been committed with other charges.
5. The charges framed on 10.10.2019 read as under:-
"That you all the above-mentioned three accused during Sept. 2018 have entered in the criminal conspiracy with your co-accused Rouf Ahmad Mir s/o Gulam Nabi Mir r/o Mirpura Mohalla Awantipura, Ummer Ramzan s/o Mohamad Ramzan Mir r/o Vill. Dadasara Teh. Awantipura and Rasik Ahmad Mir alias Rashik s/o Gulam Nabi Mir r/o vill. Dadasara Tral, Awantipura (since deceased) to carry out the unlawful activities by causing the explosion in the public place in order to cause the criminal intimidation to the public, causing grievous injuries, thereby causing the damage to public property, thus committed the offence u/s 120 B IPC, the same is cognizable by this court.Page No.3
3 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 Secondly you the aforesaid three accused by causing explosion on the public place attempted to wage war against the Govt. of India in Sept. 2018. Thus committed the offence u/s 121 IPC cognizable by this court. Thirdly, you the aforesaid three accused conspired during the period Sept. 2018 along with your co-accused (since deceased) to commit certain offences against the state thereby committed the offences 121 A IPC cognizable by this court.
Fourthly, you both the accused Fazil (Bashir Pinchoo and Shahid Quyoom were found in the unlawful possession of Tri Nitro Toluene (TNT) a special category explosive substance during Sept. 2018 with the intention to wage war against Govt. of India. Thus committed the offence u/s 122 IPC the same is cognizable by this court.
Fifthly, you the aforesaid both the accused Fazil Bashir Pinchoo and Shahid Quyoom on 14/09/2018 at 19.45 hrs. at Jalandhar have caused an explosion by exploding Tri Nitro Toluene high explosive material on the Police Station Maqsudan Jallandhar there by caused grievous injuries to the Police Personal on duty therein. Thus committed the offence u/s 307 IPC, the same is cognizable by this court. Sixthly you the aforesaid both the accused Fazil Bashir Pinchoo and Shahid Quyoom by exploding the TNT explosive on the premises of PS Maqsudan on 14/09/2018 at 19.45 hrs. have caused the damage to public property. Thus committed the offence u/s 427 IPC, the same is cognizable by this court.
Further, you the aforesaid both the accused Fazil Bashir Pinchoo and Shahid Quyoom on 14/09/2018 at 19.45 hrs. by exploding the TNT, a high degree explosive, have caused the criminal intimidation to the Police Personal and public at large living nearby. Thus committed the offence u/s 506 IPC, the same is cognizable by this court.
Further, you the aforesaid both the accused Fazil Bashir Pinchoo and Shahid Quyoom on 14/09/2018 at 19.45 hrs at Police Station Maqsudan, Jallandhar have caused the explosion of special category explosive substance thereby Page No.4 4 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 caused the endanger to life and public property. Thus committed the offence u/s 3 (b) The Explosive Substances Act 1908. The same is cognizable by this court. Further, you the aforesaid both the accused Fazil Bashir Pinchoo and Shahid Quyoom on 14/09/2018 at 19.45 hrs. have caused the explosion of TNT special degree explosive on PS Maqsudan JALLANDHAR thereby causing the grievous injuries to the Police persons posted therein which is a terrorist act. Thus committed the offence u/s 16 Jal (b) The Unlawful Activities (Prevention) Act 1967. The same is cognizable by this court.
Further, that you all the three accused during Sept. 2018 have entered in the criminal conspiracy with your co-accused Rouf Ahmad Mir s/o Gulam Nabi Mir r/o Mirpura Mohalla Awantipura, Ummer Ramzan s/o Mohamad Ramzan Mir r/o Vill. Dadasara Teh.
Awantipura and Rasik Ahmad Mir alias Rashik s/o Gulam Nabi Mir tio vill. Dadasara Tral, Awantipura (since deceased) to carry out the unlawful activities by causing the explosion in the public place in order to cause the criminal intimidation to the public, causing grievous injuries thereby causing the damage to public property, thus committed the offence u/s 18 The Unlawful Activities (Prevention) Act 1967. The same is cognizable by this court.
Further, that you all the three accused during Sept 2018- were found to be active member of a terrorist gang Ansar Ghazwat-ul-Hind which is involved in the terrorist act. Thus committed the offence u/s 20 The Unlawful Activities (Prevention) Act 1967. The same is cognizable by this court.
Further, that both the accused Fazil Bashir Pinchoo and Shahid Quyoom in Sept. 2018 at Jalandhar were found to be in the unauthorized possession of Tri Nitro Toluene (TNT) a special degree explosive substance for causing the mass destruction which was aided by your co-accused Amir Nazi Mir. Thus committed the offence u/s 23 (1) The Page No.5 5 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 Unlawful Activities (Prevention) Act 1967. The same is cognizable by this court.
Further, that you all the three accused during the period Sep. 2018 have destroyed your mobile phones and SIMS which were being used by you for making conversation with your co-accused, thus were containing incriminating evidence against you as such have caused the disappearance of the evidence thus committed the offence u/s 201 IPC. The same is cognizable by this court. And I hereby direct that you accused be tried by this Court on the above said charges.
(Nirbhow Singh Gill) Special Judge, NIA, Punjab, SAS Nagar, Mohali 10.10.2019"
6. Resultantly, reliance was placed upon the judgment of the Apex Court passed in Union of India Vs. K.A. Najeeb, 2021 (3) SCC 713 to contend that 5 years of incarceration was there in that case and in the present case he has 4 years of custody already there and the trial would likely to take some time, as only 35 witnesses out of the 78 prosecution witnesses had been examined. Reliance was also placed upon the judgment passed in State of Kerala Vs. Raneef, (2011) 1 SCC 784 in support of the said contention that the proviso under Section 43D(5) of the 1967 Act would not come into play.
7. Counsel for the appellant further contended that it was the case of the prosecution that because he was in touch with A-1 between 23.05.2018 to 24.08.2018 when he was in J&K and there was cause made inter se, which is the only incriminating material. The same was in the form of 7 times through the voice calls and 20 times through SMS. He, accordingly, pointed out from the chart of the calls as such that many are in the form of missed calls and only on account of the fact that there was inter se communication with accused A-1 or with the other accused Page No.6 6 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 namely Rauf Ahmad Mir (A-4) would not be a ground as such to further detain him. He submitted that only on account of the disclosure statement now placed on record as D-69/1, he has been connected as such and accordingly, submitted that the veracity of the disclosure statement would be a subject matter of the evidence. He, accordingly, relied upon the judgment of the Apex Court passed in Tofan Singh vs. State of Tamil Nadu, (2021) 4 SCC 1 to submit that any such statement made would be barred under Section 25 of the Evidence Act, 1872. It was, accordingly, contended that the requirement under the NDPS Act was more strict than 1967 Act and, therefore, he was liable to be bailed out.
8. Mr. Sandhu counsel for the NIA has vehemently argued that it is not a case of sheer acquaintance, but he was a actual facilitator between the two other surviving accused A-1 and A-2, who were students at Jalandhar and who had been introduced to the other main accused, who are no longer alive, namely, Rasik Ahmed Mir @ Rashik @ Rasikh (A-6) and Zakir Rashid Bhat @ Zakir Musa (A-7) and he had recruited the students in AGH. Reliance was placed upon the charge-sheet wherein the role of the accused as has been mentioned that he had introduced the two to the AGH Commander and got them recruited and facilitated their meeting at Awantipora on 26.05.2016 with A-1 and he had also motivated him to join AGH to carry out unlawful activities in Punjab. It is the case of Mr. Sandhu he had contacted A-6 and briefed him about the co-accused A-2 who wanted to join their group (AGH) and also made arrangement for installment of the BBM App for secured communication in the mobile of A-2 and further given the ID of two accused to A-6. Directions had also been given to collect the consignment of 4 hand grenades on 09.09.2018 and to throw them at the Police Station and at some police/army posts or Page No.7 7 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 some security installation in furtherance of larger conspiracy to destabilise the law and order situation in the Punjab State and thereby waging war against India. He was, thus, the link between the Jalandhar based accused and ones based in J&K. He also facilitated their meeting with A-4 and A-
5 at Maqsudan Chowk, Jalandhar on 13.09.2018. Accordingly, grenades had been thrown at Police Station, Maqsudan at 19:45 hours on 14.09.2018 and they had ran away and thereafter, remained in contact and also destroyed the mobile phone to evade the arrest and they were part of the larger conspiracy.
9. It was, accordingly, submitted that the "Transporter" had been organized by the other accused who had died and, thus, his identify could not be ascertained. A link was made between the other accused A-1 and A-2 and the main accused A-8 who had all been eliminated in two separate encounters on 24.12.2018 and 24.05.2019 and there were only three accused who are alive and, accordingly, were being proceeded against.
Reliance has placed upon the statement of one Dr. Alok Lalvani to show that the argument which has been raised by counsel for the appellant that there was no injury received by any one was also incorrect as Constable Parminderjit Singh of Punjab Police had been brought by his colleague namely Harpreet Singh in the Sacred Heart Hospitatal, Maqsudan, Jalandhar with splinter injury in his chest on the day of the grenade blasts.
10. The provisions of Section 43D (5) of the 1967 Act provides a restrain as such from granting bail if there are reasonable grounds in the report under Section 173 Cr.P.C. against such persons which are found prima facie true. The said provision was subject matter of consideration in 'National Investigation Agency Vs. Zahoor Ahmad Shah Watali', (2019) 5 SCC 1. Resultantly, it was held that the degree of satisfaction is Page No.8 8 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 lighter than the mandate of not guilty as required under the NDPS Act.
Similarly, in 'Sudesh Kedia Vs. Union of India', (2021) 4 SCC 704 bail was granted by the Apex Court on the ground that no conspiracy had been made out prima facie, as the appellant had only met a member of the organization and on account of the fact that `9,95,000/- recovered from his house, which could not be said to be received from terrorist activity. It was also held that it was the bounden duty of the Court to apply its mind to examine the entire record for the purpose of satisfying itself, whether prima facie case is made out against the accused or not. 11 The judgment relied upon K.A. Najeeb (supra) was a case where cancellation of bail had been prayed for and resultantly it was noticed that there were 276 witnesses left to be examined and charge had only been framed on 27.11.2010 and the sentences were not more than 8 years. Keeping in view the above fact the Apex Court had not interfered as such regarding the bail which had already been granted. The factual matrix in the present case is different as Mr. Sandhu has been able to convince us that prima facie case has been made out.
12. The FIR as noticed was against unknown persons when a meeting was being held at Police Station, Maqsudan when multiple bomb blasts had taken place and due to which window panes installed were smashed and it also left craters at the place where bomb blasts took place and smoke was spread all around. Eventually, the matter was entrusted to the NIA by re-registering the case on 20.12.2018. It transpired that it was a conspiracy of a terrorist gang AGH and A-1, A-2, A-4 and A-5 had carried out four blasts with intent to kill the police personnel on the directions of the AGH Chief Rashid Bhat @ Zakir Musa (A-7) and the appellant (A-3). On 06.05.2019 final report had been filed against A-1, A- Page No.9
9 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 2, A-4, A-5 and A-6 and the investigation continued. The present appellant was arrested on 06.03.2019 and was charge-sheet in the first supplementary charge-sheet filed on 30.08.2019.
13. It was the case of the Investigating Agency that Zakir Musa (A-7), who was a Hizb-ul-Mujahideen (HM) terrorist, had separated himself and formed a new terrorist gang namely, AGH and conspired to carry out terror activities at various installations in J&K, Punjab and rest of India in furtherance to wage war against India. He had released a Video to carry out attack on Indian Army Patrols, checkpoints as well as on companies interested in investing in India and also published material, which encouraged the community to carry out attack at various installations. Even a raid had been conducted on 10.10.2018 at Hostel of CT Institution, Jalandhar by Punjab Police and recovery was made of one AK Rifle with 2 magazines and 54 numbers of live rounds, one Mouser Pistol with 2 magazines and 31 live rounds and Explosives weighing about 1 KG from the three over ground worker of AGH, which has a separate RC No.34. The role as such of the present appellant was summarized as under:-
"ROLE OF ACCUSED APPELLANT AMIR NAZIR MIR (A-3) During the course of investigation, it has been found that the accused Amir Nazir Mir (A-3) had played an important role in the commission of four blasts that took place in the premises of PS Maqsudan, Jalandhar, Punjab on 14th Sept 2018 at about 1945 hours, Amir Nazir Mir (A-3) has facilitated the recruitment of Fazil Bashir Pinchoo (A-1) & Shahid Quyooom (A-2) into the AGH terrorist gang and they were in contact with each other through secure means of communication Amir Nazir Mir (A-3) had introduced Fazil Bashir and Shahid Quyoom with A-8 A-C AGH commanders Page No.10 10 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 Zakir Musa and Rasik Ahmed Mir thereby he recruited (Fazil Bashir and Shahid Quyoom in AGH. In this process, a meeting was held between Amir Nazir Mir (A-3) and Fazil Bashir Pinchoo (A-1) at Awantipora (J&K) on 26th May 2018. Amir Nazir Mir (A-3) motivated Fazil Bashir Pinchoo (A-1) to join the AGH for carrying out unlawful activities at Punjab.
Amir Nazir Mir (A-3) had contacted Rasik Ahmed Mir @ Rashik @ Rasikh (A-6), (an AGH cadre and briefed him about Fazil Bashir Pinchoo (A-1) who wanted to join their group i.e. AGH.
Amir Nazir Mir (A-3) had directed for installation (of BBM App for secured communication. On the same basis, on 1st Sept 2018, Fazil Bashir Pinchoo (A-1) & Shahid Quyooom (A-2) had installed a BBM App Messenger in the mobile of Shahid Quyoom (A-2). Thereafter, Fazil Bashir Pinchoo (A-
1) & Shahid-Quyooom (A-2) started conversation with Zakir Musa (A-7) through BBM.
Amir Nazir Mir (A-3) had given the BBM ID of Fazil Bashir Pinchoo (A- 1) & Shahid Quyoom (A-2) to accused person Rasik Ahmed Mir (A-6), an AGH cadre who was engaged in carrying out the illegal activities of AGH on the directions of Zakir Musa (A-7).
Amir Nazir Mir (A-3) had given further direction to Fazil Bashir Pinchoo (A-1) and Shahid Quyoom (A-2) after collecting the consignment-of four hand grenades from the delivery person (known as "Transporter"Y on 9th Sept. 2018. Amir Nazir Mir (A-3) had informed Fazil Bashir Pinchoo (A-1) & Shahid Quyooom (A-2) to throw grenades at some police / army post or some security installation as per the direction of the AGH Chief Zakir Musa (A-7) in furtherance of larger conspiracy to destabilise the law and order situation in the Punjab State and thereby waging war against India. Amir Nazir Mir (A-3) was the link between the Jalandhar based accused persons i.e. Fazil Bashir & Sahid Quyoom and Kashmir based AGH commanders i.e. Zakir Musa and Rasikh Ahmed Mir. He had directed Fazil Bashir Pinchoo (A-1) and Shahid Quyoom (A-2) to receive two Kashmiri persons Page No.11 11 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 namely Rauf Ahmed Mir (A-4)-and-Ummar Ramzan (A-5) at Maqsudan Chowk, Jalandhar on 13th Sept 2018.
Accordingly, Fazil Bashir Pinchoo (A-1), Shahid Quyoom (A-2), Rauf Ahmed Mir (A-4) and Ummer Ramzan (A-5) threw grenades at the premises of PS Maqsudan, Jalandhar at about 1945 hours on 14th Sept 2018 and ran away from the spot.
Amir Nazir Mir (A-3) passed important messages to Fazil Bashir after receiving information from the AGH cadres with regard to carry out the unlawful activities.
Amir Nazir Mir (A-3) was in touch with the accused Fazil Bashir Pinchoo during the period of incident according to Call Details Record.
Amir Nazir Mir (A-3) destroyed his mobile phone after the attack to evade their arrest. That investigation has established that Amir Nazir Mir (A-3) had facilitated the recruitment of Fazil Bashir Pinchoo (A-1) & Shahid Quyooom (A-2) into the AGH terrorist gang and the delivery of the consignment of four hand grenades to Fazil Bashir Pinchoo (A-1) and Shahid Quyoom (A-2) and was part of the conspiracy of carrying out grenade attack at the premises of PS Maqsudan, Jalandhar on 14th Sept 2018. They were in contact with each other through secure means of communication.
There is more than sufficient evidence on the record establishing a strong prima facie case against the accused persons (including Amir Nazir Mir). The evidence collected by NIA was taken into consideration by the NIA Spl. Court Mohali and on finding a prima facie case against all the accused the court vide order dated 10-10-2019 has framed charges against the charge sheeted accused including the accused appellant Amir Nazir Mir. U/s 120B, 121, 121A,201 IPC, Section18,20 Unlawful Activities (Prevention) Act. The copy of the order dt.10-10- 2019 framing charges against the appellant and other accused is being annexed as ANNEXURE R-1."
14. It was the case of the Investigating Agency that he was an active member and had active role to motivate A-1 & A-2 and had Page No.12 12 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 arranged delivery of 4 hand grenades, which had been collected by A-1 and A-2 from the "Transporter" on 09.09.2018. It was further the case of the prosecution that they were studying at Jalandhar, who were known to him and he had directed them that on getting the delivery of the said 4 hand grenades, they will throw the same at some police/army posts and further instructed them to wait till the message from the main operators is received and on that account the communication is stated to have been done through a secured/encrypted BBM Messenger APP which had been installed at the instance of the present appellant in the phone of A-1 and A-
2.
15. As noticed above while coming in touch with A-1, who wanted to join such a group, he had introduced him to A-6, who had initially declined the offer but had been convinced by the appellant. The BBM APP, accordingly, was installed and A-2 had been successful in helping A-1 to install it and who was his friend and room-mate. Eventually, his ID was shared with A-6 and arrangement was made on 09.09.2018 to get the delivery from a unknown person who called the "Transporter" and the facilitation was being done by the appellant. On the A-1 and A-2 getting nervous, A-6 was told about the said fact, who had replied that `2 lakhs had been spent on the delivery of four hand grenades and the same should be kept at a safe place and they would be sending Rouf Ahmad Mir (A-4) to accomplish the task. Resultantly, two persons had reached Jalandhar and carried out the rescue before the bomb attack with the help of A-1 and A-2. The two operators had allegedly come back on the said day after carrying out the attack and on account of high alert, A-1 got nervous and was instructed to destroy his mobile phone and sim cards and even the appellant had also destroyed his Samsung J-7 mobile Page No.13 13 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 phone on the same day. The other accused had told the present appellant also that when grenade attack had been carried out, A-1 and A-2 were alongwith him, which would be clear from Disclosure Memo D-69/1.
16. Similar is the confession statement of Fazil Bashir Pinchoo regarding the fact that he received a message from that the "Transporter" would be coming and accordingly they had met him on 09.09.2018 at Hotel WJ Grand after being informed by the present appellant, as regarding the date and time he would be coming. The similar disclosure was made that they had nervous and were not able to throw grenades. Resultantly, two operators had reached, who were received by A-1 & A-2 then and taken to various places including Army Camp and also the CRPF/State Police Camp and eventually the attack was carried out on 14.09.2018 late in the evening and the two operators had left for J&K, whereas the Jalandhar operators had returned to their PG room and on the next day had gone to J&K and accordingly had broken their mobiles and sims.
17. Similar is the disclosure statement of Shahid Quyoom (A-2) and in pursuance of the same counsel for the respondent-NIA has also placed on record the call details inter se the parties which would also go on to show that there are several blank calls made on 15.09.2018 between the telephones which were being used by the appellant and A1. Calls had been made on 15.09.2018 which was apparently a signal to contact and communicate by way of SMS or by one of the secured means of communication i.e. BBM APP.
18. The call details would, thus, go on to show that there was inter se communication on the relevant dates, when the delivery of the grenades was done and when the attack was carried out and thereafter. It Page No.14 14 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 has also been collected by the Investigating Agency that the appellant was possessing as many as eleven mobile phones on which five sim cards had been used. It is, thus, apparent that there is sufficient material to link the appellant alongwith the other co-accused who had carried out the attack and the argument which is raised that it was only a college association and on account of the belonging to the same area, is not liable to be accepted, keeping in view the gravity of the charge. Another fear that is harboured rightly by the prosecution agency is that on being released on bail the appellant would likely abscond and flee across the border cannot be said to be unfounded, as the offences under Sections 121 and 121A IPC are punishable with death or imprisonment for life.
19. In such circumstances, we are of the considered opinion that since the trial is already going on and as many as 35 witnesses have already been examined out of the 78 witnesses, it would be expedient to give directions to the Learned Special Court to ensure that the trial is conducted as far as possible on day-to-day basis, to ensure that it is taken to its logical end and the appellant's right under Article 21 of the Constitution of India is also duly protected.
20. Accordingly, in the peculiar facts and circumstances, we feel that counsel for the appellant has not been able to make out a case for interference for us to record a finding that prima facie there is no involvement which is the requirement and, therefore, the judgments relied upon would not come into play. The Investigating Agency has been able to put together the strings and filed the challan. Resultantly, we are of the considered opinion that no ground for grant of bail is made out in the facts and circumstances and the appeal stands dismissed. Anything observed Page No.15 15 of 16 ::: Downloaded on - 30-05-2023 05:08:12 ::: Neutral Citation No:=2023:PHHC:028360-DB CRA-D-323-2022 herein is also for the purpose of deciding the appeal and shall not prejudice the Trial Court while deciding the main case on merits.
(G.S. SANDHAWALIA) JUDGE (HARPREET KAUR JEEWAN) 15.02.2023 JUDGE Naveen Whether speaking/reasoned : Yes Whether Reportable : Yes Page No.16 Neutral Citation No:=2023:PHHC:028360-DB 16 of 16 ::: Downloaded on - 30-05-2023 05:08:12 :::