Jammu & Kashmir High Court - Srinagar Bench
Ishrat Hussain Sheikh vs State Through Police Station Achabal ... on 14 August, 2019
Bench: Chief Justice, Tashi Rabstan
IN THE HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
B.A.No.70/2019
Reserved on 02.08.2019
Pronounced on 14.08.2019
Ishrat Hussain Sheikh ---Appellant(s)
Through: Mr. Arshid Andrabi, Advocate.
V/s
State through Police Station Achabal ---Respondent(s)
Through: Mr.Nissar Hussain Shah, Sr.AAG.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
JUDGMENT
GITA MITTAL, CJ:
01. The appellant has filed the present appeal impugning an order dated 27th May, 2019, whereby the learned Special Judge, designated under the National Investigation Agency Act, 2008, has rejected an application filed by the appellant for bail.
02. We have heard Mr Arshid Andrabi, learned counsel for the appellant and Mr Nissar Hussain Shah, learned Sr AAG, at great length.
We had also called for the record of the trial court which has been carefully perused by us.
03. It is on record in the reports before the trial court that during the intervening night of 7/8 September 2018 at about 23:45 hours, Police Station Achabal received information to the effect that some militants who were in two Maruti cars have carried out a murderous attack with their illegally acquired sophisticated weapons upon a police minority guard situated at Khul Ranipora which had resulted in serious injuries to the guard commander namely HC B.A.No.70/2019 Page 1 Janak Raj No.26/IRP 17th. However, one unknown militant had died in the retaliatory action on spot etc. Acting on the aforesaid information, Case FIR No. 84/2018 U/S 307 RPC 7/27 Arms Act, 16, 20 and 38 ULA(P) Act was registered in Police Station Achabal. During the course of investigation, I/O along with Police team and contingent of 19 RR reached on spot. Injured HC was evacuated to hospital while as the area was cordoned off for tracing out the involved terrorists. The dead body of the killed militant was taken into possession and 01 AK-56 along with 03 magazines, 59 live AK rounds, 06 empty cartridges and 01 pouch was recovered from the possession of said deceased militant whose identity was later on established as Bilal Ahmad Bhat S/o Abdul Ahad Bhat of Tantraypora Yaripora Kulgam.
During the search process, two vehicles viz 1. Alto-K10 bearing registration No.JK18A-6759 and 2. I-10 JK03E-4241 were found left behind by the culprits on the road in the area. Upon search of these vehicles incriminating material viz gunpowder like substance, SLR bullet without case, pistol grip, clothes and other material was recovered. As such, both the vehicles and the material were seized in the case. Seizure memos and site plan were prepared on spot. After completion of medico legal formalities, the dead body was handed over to its legal heirs for last rites.
During investigation, statements of witnesses acquainted with the facts and circumstances of the case were recorded. The sample from seized gunpowder like substance was sent to FSL Srinagar for chemical analysis and expert opinion received thereof revealed that the seized material was a "smokeless powder which is used as propellant has been detected from the sample". Medical opinion in respect of injured HC Janak Raj No.26/IRP 17 th B.A.No.70/2019 Page 2 Bn reveals the nature of injury suffered by him as "grievous". Medical opinion obtained in respect of the deceased militant revealed that the death of the deceased has caused due to cardiopulmonary arrest due to firearm injury on vital organs.
Statements of material witnesses were additionally got recorded in terms of section 164-A Cr.PC.
Call details of suspects namely Ishrat Hussain Sheikh S/o Ghulam Qadir Sheikh Nisar AhmadTeeli S/O Abdul Gani Teeli residents of Ranipora, Abdul Qayoom Shah S/o Ghulam Qadir Shah R/o SICOP Road Bijbehara and Adil Amin Thoker S/O Mohd Amin Thoker R/o Sopat Kulgam were obtained.
Test identification parade of accused Saif Gulzar Ganie S/o Gulzar Ahmad Ganie and accused Aadil Amin Thoker S/o Mohd Amin Thoker residents of Sopat Kulgam was conducted as per procedure.
As per statements of witnesses and evidence collected as well as CDR analysis, militants namely (i) Muzaffar Ahmad Bhat S/O Mohd Amin Bhat R/o Sopat Kulgam, (ii) Roshan Zameer Tantray @ Zaid Bai S/o Ghulam Mohd Tantray R/o Achwara Bijbehara, (iii) Nasir Gulzar Chadroo S/O Gulzar Ahmad Chadroo R/O Arwani Bijbehara, (iv) Gulzar Ahmad Bhat S/O AbdulSalam Bhat R/o Tarigam Kulgam, (v) Bilal Ahmad Bhat S/o Abdul Ahad Bhat R/o Tantraypora (deceased), (vi) Anees Shafi Bhat @ Furkan S/o Mohd Shafi Bhat R/O Takiya Maqsood Shah Bijbehara (deceased) were found involved in commission of offence U/S 307 RPC, 7/27 A.Act, 16, 20, 38 Unlawful Activities (Prevention) Act and apart from other accused persons, accused supra-mentioned accused namely Mubarak Ahmad Thoker S/o Abdul Rashid Thoker and Aadil Amin Thoker S/o Mohd Amin Thoker residents of Sopat Kulgam were found involved in commission of offence punishable U/S 18 of B.A.No.70/2019 Page 3 the Act, who were accordingly arrested in the case on 24.09.2018 and 21.09.2018 respectively and lodged in District Jail Anantnag. The main accused involved in the instant case were found to be active militants of proscribed Lashkar-e-Toiba (LeT) and Hizbul Mujahideen (HM) militant outfits for whose arrest strenuous efforts were made. However these efforts couldn't succeed as they are active militants. The accused Anees Shafi Bhat @ Furkan S/o Mohd Shafi Bhat R/o Takiya Maqsood Shah Bijbehara was killed in an anti-militancy operation at Takiya Maqsood Shah Bijbehara on 23.11.2018 and his death certificate obtained from concerned police station.
04. During investigation it was revealed to the police that one Sajad Ahmad Bhat S/O Assadullah Bhat R/o Ranipora had some knowledge about the incident. When interrogated, this person revealed the role of Ishrat Hussain Sheikh S/oGh. Qadir Sheikh R/oRanipora, Achabal, Anantnag,as a friend and overground worker (OGW) of the militant Muzaffar Ahmad Bhat.
05. A statement of Sajad Ahmad Bhat was recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure (Cr.P.C. for brevity). It is based on the statement of Sajad Ahmad Bhat, Ishrat Hussain Sheikh was arrested in the instant case. Thereafter, on 14th September, 2018,the statement of Sajad Ahmad Bhat was also got recorded under Section 164-A of the Cr.P.C.
06. During interrogation, Ishrat Hussain Sheikh revealed the name of one Javeid Ahmad Ganie of Ranipora. This person was called to explain his role. A statement of Javied Ahmad Ganie was recorded on 29th September, 2018, when he revealed that Ishrat Hussain Sheikh had taken him to meet militants and those militants sent him to fetch tea for them.
B.A.No.70/2019 Page 4
07. During investigation, the police has also got recorded a statement under Section 164-A Cr.P.C. of a third witness, namely, Sajad Ahmad Sheikh on 30 th October, 2018.
08. It is the case of the prosecution that the requisite sanction under sub- section (2) of Section 45 of the Unlawful Activities (Prevention) Act, 1967, for taking cognizance was obtained on 1st April, 2019 from the Home Department of the Government of Jammu and Kashmir.
09. On 19th April, 2019, a challan was filed against six persons under Section 173 Cr.P.C. In the challan/ report, filed in the trial court, the Investigating Agency has stated that commission of offences punishable under Section 18 and 38 of the Unlawful Activities (Prevention) Act, 1967, stands established against the appellant Ishrat Hussain Sheikh.
10. Mr Andrabi, learned counsel for the appellant has also drawn our attention to the notification dated 1st March, 2019, issued by the department of Law, Justice and Parliamentary Affairs, Government of Jammu & Kashmir, in exercise of powers conferred by sub-section (1) of Section 22 of the National Investigation Agency Act, 2008, notifying the court of Additional District and Sessions Judge (TADA/POTA) Srinagar as a Special Court for Kashmir, for the purposes of trial of offences punishable under the Unlawful Activities (Prevention) Act, 1967.
11. An application for bail on behalf of Ishrat Hussain Sheikh (the appellant before us) was filed on 24th September, 2018, before the trial court. It was pressed before the trial court on the same grounds, as are pressed before us, that he was a student appearing in the B.A. Final year examination when he was taken into custody by the police from his home. It was contended that appellant belongs to an educated and dignified family with deep roots in the society; that B.A.No.70/2019 Page 5 the appellant was innocent and has been implicated in the case on false and frivolous allegations. Mr Arshad Andrabi, learned counsel has submitted that the appellant has never been involved in any case till date.
12. Mr Arshad Andrabi, learned counsel for the appellant, has stanchly urged that the appellant is a married person and has been blessed with a child only in the month of July, 2019 when he was in custody. Learned counsel for the appellant has also contended that the appellant was actually arrested on 8th of September, 2018 and not on 13th September, 2018 which is the date given by the police regarding his arrest.
13. Learned counsel has submitted that on a consideration of the application for bail, the learned Principal Sessions Judge, Anantnag, had passed an order dated 1st October, 2018 directing that the appellant be enlarged on interim bail subject to his furnishing a bail bond to the tune of Rs.50,000/- with one surety in the like amount on the following terms and conditions.
"1. That the petitioner shall remain present before IO if required for lawful interrogation;
2. That petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such acts to the court or to any police officer/IO.
3. That petitioner shall not leave the territorial limits of the state of J&K without previous permission of this Court.
4. That petitioner shall not indulge in subversive activity of repetition of offence/s of any criminal activity."
14. Mr Andrabi submits that despite this order, the appellant was not released from custody.
15. Mr Andrabi has contended that this order of the Principal District Judge was extended from time to time till 26th December, 2018 and that despite this order, the appellant was not released by the police. Instead an order dated 12th B.A.No.70/2019 Page 6 November, 2018 under Section 8 of the Jammu & Kashmir Public Safety Act was passed by the District Magistrate, Anantnag, ordering that the appellant be taken in the preventive custody.
16. This order was assailed by the appellant before the learned Single Judge of this Court by way of awrit petition which was registered as HCP No.475/2018. The challenge to the detention order by the appellant came to be accepted by the learned Single Judge by a detailed judgment dated 29thApril, 2019 quashing the order of detention primarily for the reason that the appellant was already in custody having been arrested in connection with the case arising out of FIR No.84/2018. The learned Single Judge concluded that the order of preventive detention suffered from non-application of mind on the part of the detaining authority observing that even the sponsoring agency i.e., the Sr. Superintendent of Police had not been able to explain how judicial custody of the appellant was sought before the trial court after the detention order was passed. In this background by the judgment dated 21st April, 2019, the order or preventive detention dated 12th November, 2018 was quashed.
17. The learned Special Judge finally considered the bail application of the appellant Ishrat Hussain Sheikh at length and rejected the same by the order dated 27th May, 2019. The order records that the learned judge has perused the report filed under Section 173 Cr.P.C; the evidence recorded by the Investigating Officer on the file to the effect that Ishrat Hussain had played a major role in promoting militancy related activities in the area and that he had also been carrying militants from one place to another. Observing that HC Janak Raj had been injured in the incident by the militants, the learned Judge has recorded the prima facie finding that there was sufficient evidence in the file against the appellant for commission of offence under sections 18 and 38 of B.A.No.70/2019 Page 7 the Act of 1967. The learned judge has recorded that on the basis of the evidence collected by the Investigating Officer, he had reason to believe that accusations against the appellant are true.
18. We also find that in the order dated 27th May, 2019, the learned judge has conducted a detailed examination of the provisions of Section 43-D (5) of the Act observing that so far as consideration of the application for bail of multiple accused is concerned, the court would be required to weigh the allegations and the evidence against each of the co-accused individually and that court could not accord an identical consideration to cases of co-accused against whom the investigating agencies make explicit allegations; refer to separate evidence; allege different roles and also place separate outcomes of their investigations including searches and seizures as well as oral statements of witnesses.
19. The learned Trial Judge has rejected the application for bail taking into consideration the nature of the accusations against the appellant; the evidence collected by the Investigating Officer; severity of the punishment in the event of conviction; danger of the accused absconding or fleeing, if released on bail; his character and behavior; his means, position and the standing of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being tampered with; and danger, of course, of his impeding justice.
20. Reference stands made to the statements recorded by the Investigating officer under Section 161 Cr.P.C leading to formation of reasonable ground to believe prima facie involvement of the appellant in the commission of offence under the Act. The learned Trial Judge has also recorded that if the accused was enlarged on bail, there are chances of his tampering with the prosecution witnesses; that on account of his being an Over Ground Worker (OGW) of a B.A.No.70/2019 Page 8 banned outfit, the witnesses would not come against him because of his fear and influence in the society.
21. This order has been assailed by way of the appeal on the very grounds on which the application for bail was laid.
22. Mr Arshad Andrabi has submitted that it is not the prosecution case that the appellant has obstructed investigation in any manner. It is also his submission that there is no evidence of the appellant's involvement in the commission of any offence. It is contended that the appellant has spent more than seven months in custody and that the final report stands filed by the investigating agency before the Special Court.
23. In rebuttal, it is submitted by Mr N. H. Shah, learned Sr AAG, that the appellant was arrested on 13th September, 2018 and within 21 days, on 3rd of October, 2018, he was released on interim bail. The bail granted to the appellant was not extended beyond 3rd of November, 2018 and, therefore, on 13th November, 2018, he was re-arrested. The submission is that as the challan against the appellant came to be filed on 19th April, 2019, by that date, the appellant had spent only 179 days in the custody.
24. On the other hand, Mr N. H.Shah, learned Sr AAG, has stanchly defended the order passed by the trial judge keeping in view the seriousness of the allegations laid against the appellant.
25. Before examining the prayer made before us on merits, we may first and foremost examine Sections 18 and 38 of the Unlawful Activities (Prevention) Act, for which offences the appellant is facing trial. It is also necessary to examine the statutory provisions governing the consideration of the application for bail by an accused for the offences punishable under this enactment.
B.A.No.70/2019 Page 9
26. For expediency, Section 18 and 38 of the Unlawful Activities (Prevention) Act, 1967, are extracted below:
"18. Punishment for conspiracy, etc. - Whoever conspires or attempts to commit, or advocates, abets, advises or [incites, directs or knowingly facilitates] the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
38. Offence relating to membership of a terrorist organisation. -
(1) A person, who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities, commits of offence relating to membership of a terrorist organisation:
Provided that this sub-section shall not apply where the person charged is able to prove-
(a) that the organisation was not declared as a terrorist organisation at the time when he became a member or began to profess to be a member; and
(b) that he has not taken part in the activities of the organisation at any time during its inclusion in the Schedule as a terrorist organisation (2) A person, who commits the offence relating to membership of a terrorist organisation under sub-section (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both."
27. So far as grant of bail if arrested for alleged commission of offences under the Unlawful Activities (Prevention) Act, 1967 is concerned, special provisions have been made in Section 43D of the Act which were incorporated by Amendment Act 35 of 2008 with effect from 31st December, 2008. Sub- sections 5, 6 and 7 of Section 43D are relevant for the present consideration and are set down hereafter:
"43D. Modified application nof certain provisions of the Code.- xxxxxxxxxxx (5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
B.A.No.70/2019 Page 10 Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. (6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictioins under the Code or any other law for the time being in force on granting of bail. (7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian Citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in wirting."
(Emphasis by us)
28. By virtue of the proviso to sub-section 5 of Section 43 of the Act, it is thus the mandatory duty of the Special Court to record its satisfaction that there were reasonable grounds for believing that the accusation against the accused were "prima facie true". If such prima facie opinion is reached by the court, there is absolute prohibition on release of the arrested person on bail. To draw its opinion, the statute requires the concerned Court to peruse the case diary or the report under Section 173 of the Cr.P.C.
29. Valuable light is shed on the consideration in judicial precedents on similar provisions in special legislations which stand enacted to address specific issues and offences. The Terrorist and Disruptive Activities (Prevention) Act, 1985 ('TADA' for brevity hereafter) was enacted by the Parliament on the 23rd May, 1985 in order to make special provisions for the prevention of, and, for coping with, terrorist and disruptive activities and for matters connected therewith or incidental thereto. In Section 17 of this legislation, modified application of certain provisions of the Cr.P.C. was stipulated. So far as grant of bail to a person accused of commission of offences under TADA is concerned, sub-section (5) of Section 17 is relevant and reads as follows:
B.A.No.70/2019 Page 11 "17. Modified application of certain provisions of the Code Xxxxxxxxxxxxxxxxxxx (5) 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.
(6) The limitations on granting of bail specified in sub-section (5) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail."
30. Similarly, the Government of Maharashtra enacted the Maharashtra Control of Organized Crime Act, 1999, ('MCOC' for brevity hereafter) which received the assent of the President on the 23rd April, 1999, making special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gangs, and for matters connected therewith or incidental thereto. In this legislation, the power of the court to grant bail under the Cr.P.C. stood modified by Section 21(4) & (5) which reads as follows:
"21(4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act 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 of 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.
(5) Notwithstanding anything contained in the Code, the accused shall not be granted bail if it is noticed by the Court that he was on bail in an offence under this Act, or under any other Act, on the date of the offence in question.
(6) The limitations on granting of bail specified in sub-section (4) are in addition to the limitations under the Code or any other law for the time being in force on the granting of bail."
B.A.No.70/2019 Page 12 Sub-section (6) of Section 21 provides that the above limitations were in addition to the limitations under the Code or any other law which was in force on the granting of bail.
31. The Narcotic Drugs and Psychotropic Substances Act, 1985, ('NDPS Act' for brevity hereafter) enacted by the Parliament (received assent of the President of India on 16th September, 1985) for the purposes of consolidating and amending the law relating to narcotic drugs and, inter alia, to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. Section 37 of the Statute makes offences under the enactment cognizable and non-bailable. It contains a non- obstante clause and, so far as grant of bail is concerned, it contains the following provisions:
"37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-
(a)xxxxxxxxxxxxxxxx
(b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and
(ii) 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.
(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974 or any other law for the time being in force, on granting of bail."
32. A perusal of the above legislations would show that while MCOCA, TADA, NDPS Act as well as Unlawful Activities (Prevention) Act, all require opportunity to be given to the Public Prosecutor of hearing on an application of B.A.No.70/2019 Page 13 an arrested person for release on bail, the first three statutes require the court to be satisfied that there are "reasonable grounds" for believing that the applicant is "not guilty of such offence" and that he is "not likely to commit any offence while on bail". Section 43(D)(5) of the Unlawful Activities (Prevention) Act, requires the court to form an opinion that there are "reasonable grounds" for believing that the accusations against such person are "prima facie true".
33. The observations of the Supreme Court in a three Judge bench pronouncement reported at (2005) 5 SCC 294 :RanjitsingBrahmajeetsing Sharma v. State of Maharashtra and anr., wherein it was called upon to consider the contours of the requirement of exercise power of the court to grant bail under Section 21(4) & (5) of MCOCA deserve to be considered. We may usefully extract paras 36 to 38 and paras 44 to 48 of this pronouncement which reads as follows:
"36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose.
38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. ... What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly orindirectly. The court at the time of considering the application for grant of B.A.No.70/2019 Page 14 bail shall onsider the question from the angle as to whether he was possessed of the requisitemens rea...."
34. Again in paragraphs 44 to 48, the Court observed:
"44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committedan offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.
45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.
46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in subsection (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.
47. In Kalyan Chandra Sarkar v. Rajesh Ranjan13 this Court observed: (SCC pp. 53738, para 18) B.A.No.70/2019 Page 15 '18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court considering a bailapplication. Still one should not forget, as observed by this Court in the case Puran v. Rambilas14 : (SCC p. 344, para 8) 'Giving reasons is different from discussing merits or demerits.
At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. ... That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated.' We respectfully agree with the above dictum of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. Therefore, we are not in agreementwith the argument addressed by the learned counsel fortheaccused that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondent or his supporters to witnesses in the case. In such circumstances, the Court was duty bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. Then on consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he wason bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number ofwitnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. As stated hereinabove, this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the respondent on bail becauseof the serious allegations of tampering with the witnesses made against the respondent.'
48. In Jayendra Saraswathi Swamigal v. State of T.N. this Court observed: (SCC pp. 2122,para 16) '16. ... The considerations which normally weigh with the court in granting bail in nonbailable offences have been explained by this Court in State v. Capt. Jagjit Singh and Gurcharan Singh v. State (Delhi Admn.)and basically they are -- the nature and seriousness B.A.No.70/2019 Page 16 of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.' "
(Emphasis supplied)
35. We may usefully also refer to the pronouncement of the Supreme Court reported at (2007) 1 SCC 242 :ChennaBoyanna Krishna Yadav v. State of Maharashtra and anr., which has also been rendered in the context of an application for bail under section 21(4) of MCOCA. In para 12 of this judgment, Section 21(4) stands reproduced to enable contextualisation. We may usefully extract the relevant portion of para 12 and paras 13 & 16 of the judgment which read as follows:
"12. However, as the provisions of MCOCA have been invoked in the instant case in addition to the afore-mentioned broad principles, the limitations imposed in the provisions contained in sub-section (4) of Section 21 of MCOCA cannot be lost sight of while dealing with the application for grant of bail.
xxxxxxxxxxxx"
13. It is plain from a bare reading of the non-obstante clause in the sub-section that the power to grant bail by the High Court or Court of Sessions is not only subject to the limitations imposed by Section 439 of the Code but is also subject to the limitations placed by Section 21(4) of MCOCA. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions are: the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression "reasonable grounds" means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provisions requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording findings under the said provision is a sine qua non for granting bail underMCOCA.
B.A.No.70/2019 Page 17
16. At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the appellant has committed offences under Section 3(2) or Section 24 of MCOCA. What is to be seen is whether there is a reasonable ground for believing that the appellant is not guilty of the two offences, he has been charged with, and further that he is not likely to commit an offence under MCOCA while on bail. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It is true that when the gravity of the offence alleged is severe, mere period of incarceration or the fact that the trial is not likely to be concluded in the near future either by itself or conjointly may not entitle the accused to be enlarged on bail. Nevertheless, both these factors may also be taken into consideration while deciding the question of grant of bail."
These principles have to guide our consideration.
36. The expression "reasonable ground" as contained in Section 37(1)(b)(ii) of the NDPS Act, stands considered by the Supreme Court in the pronouncement reported at (2007) 7 SCC 798 : Union of India v. Shiv Shanker Kesari and it was held that "the expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charges and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged." (para 7)
37. In Shiv Shanker Kesari, the Supreme Court has also stated that, while considering the application for bail with reference to Section 37 of the NDPS Act, the court is not required to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty. The Court is only to called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.
38. In a recent pronouncement of the Supreme Court dated 2nd April, 2019 in Criminal Appeal No. 578 of 2019 entitled National Investigation Agency v.
B.A.No.70/2019 Page 18 Zahoor Ahmad Shah Watali, the Court was considering an appeal against the order of the High Court granting bail to the respondent who was standing trial for allegedly commission of offences under the Unlawful Activities (Prevention) Act, 1967. In para 17 of the judgment, the Supreme Court has expounded on the requirements of the expression "prima facie true" as contained in Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967.
"17.......... By its very nature, the expression "prima facie true"
would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act............"
(Emphasis by us)
39. In paras 18 and 19 of the aforesaid pronouncement in National Investigation Agency v. Zahoor Ahmad Shah Watali, the court summed up the manner of consideration of the material on record in the following manner:
"18. A priori, the exercise to be undertaken by the Court at this stage of giving reasons for grant or nongrant of bail is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise........
19. For that, the totality of the material gathered by the Investigating Agency and presented along with the report and B.A.No.70/2019 Page 19 including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance. Inany case, the question of discarding the document at thisstage, on the ground of being inadmissible in evidence, is notpermissible. For, the issue of admissibility of thedocument/evidence would be a matter for trial. The Courtmust look at the contents of the document and take suchdocument into account as it is."
(Emphasis by us)
40. The statutory requirement thus stands reinforced by the afore detailed enunciation of the legal principles that till contradicted/overcome/ disproved by other evidence, the materials/ evidence collected by the investigating agency against an accused person in the first information report would have to prevail. Furthermore, the degree of satisfaction for opining that the allegations are "prima facie true" as required by the proviso to Section 43D(5) is much lighter than for recording an opinion that the accused was "not guilty" (as contained in TADA, MCOCA and the NDPS Act). It is also lighter than the degree of satisfaction required while considering an application of the accused for discharge from the case or for framing of charges.
41. The Supreme Court has also clearly emphasized that court is required to take into account the entirety of evidence referred to in the report under Section 173 Cr. P.C. and the totality of material and evidence on record which is not required to be weighed and examined only for the purposes of forming an opinion broad probabilities.
42. The legislations as noted above have clearly stipulated that the limitations on granting of bail under the special enactments are in addition to the limitations under the Code of Criminal Procedure or any other law for the time being in force on granting of bail. Therefore, it becomes necessary also to consider what are the limitations and parameters on which a prayer for release B.A.No.70/2019 Page 20 on bail under the provisions of the Criminal Procedure Code is required to be considered.
43. In this regard the Supreme Court has considered the entire law on the subject in the pronouncement reported at (2005) 8 SCC 21 : State of U.P. through CBI v. Amarmani Tripathi. The principles on which an application for grant of bail under the Criminal Procedure Code would require to be considered have been enumerated in para 18, which reads as follows:
"18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if release on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi : (2001) 4 SCC 280 and Gurcharan Singh v.State (Delhi Admn.) : (1978) 1 SCC 118]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan : (2004) 7 SCC 528 "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of convction and the nature of supporting evidence.
B.A.No.70/2019 Page 21
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Goving Upadhyay v. Sudarshan Singh : (2002) 3 SCC 598 and Puran v. Rambilas (2001) 6 SCC
338."
(Emphasis supplied)
44. While Section 43D of the Unlawful Activities (Prevention) Act, 1967, contains a non-obstante clause, however, sub-section (6) clearly says that the restrictions on grant of bail as specified under Section 43D(5) are in addition to the Code of Criminal Procedure or any other law for the time being in force. Therefore, the restrictions under Section 43D(5) would apply in addition to the above parameters on which an application for bail under the Unlawful Activities (Prevention) Act, 1967, has to be considered.
45. It is noteworthy that the enunciation of law by the Supreme Court in State of U.P. v. Amarmani Tripathi has been cited with approval in para-15 of the pronouncement in National Investigation Agency v. Zahoor Ahmad Shah Watali.
46. In view of the principles above noted, in order to decide the prayer of the appellant who stands arrested on allegations of having committed an offence under the Unlawful Activities (Prevention) Act, for release on bail, this Court is required to examine the first information report and the other material placed by the investigating agency on record. We have extracted above the summarization of the reports placed by the police before the trial court.
47. From examination of the record of the trial court and the submissions made before us, we find that it is the case of the prosecution that Ishrat Hussain Sheikh, the appellant before this Court, was the main and central character in B.A.No.70/2019 Page 22 the planning of an attack on 7th September, 2018 on a guard post at Khul Ranipora.
48. The prosecution case is that the appellant left studies and started working at Bakery shop of his maternal uncle Bashir Magray at Aishmuqam. He came in contact with one Muzaffar Ahmad an Over Ground Worker who was also working in the same shop. With the passage of time Muzaffar Ahmad joined Lashkar-e-Toiba militant outfit and started providing logistic support to the militants under the influence of Ishrat Hussain.
49. On 7th September, 2018, Ishrat Hussain accompanied the militants using an Alto Car and attacked the guard post at KhulRanipora. In the retaliatory firing, one militant who was later identified as Bilal Ahmad Bhat of Yaripora got killed. On account of the firing by the militants, Head Constable Janak Raj of 26 IRP/17 Bn. got injured. Recoveries were effect from the spot including a rifle being an AK-47 weapon in addition to the body of the said militant as well as the vehicles as set down above.
50. In this regard we may also extract the statements of three witnesses recorded under Section 164-A Cr.P.C. against the appellant which stand placed along with the challan before the learned Trial Judge:
(i) Statement on oath of witness namely Sajad Ahmad Bhat S/o Assadullah Bhat R/o Ranipora, 23 years old, student by profession who has been produced by Inspector Javied Ahmad ARP 046114 of P/S Achabal. dt 14th September, 2018.
"The deponent states that on 02.09.2019 he was thrashing walnut trees and around 5 PM he returned to a shop of a friend namely Asif Hussain Sheikh. When I reached there accused namely Ishrat Hussain Sheikh also reached there in his car. He called me and told me that he has to take tea for 03 guests, but he did not tell me who are the guests. He told me to accompany him for such purpose. I accompanied him to Orchard. When we reached near Orchards we parked the car. He handed over to me the tea flask. Thereafter we proceeded towards Orchards. The Orchards were in B.A.No.70/2019 Page 23 huge patch of land. After moving for sometime we reached to a spot where I found (03) militants sitting. When I saw the militants my heart started pounding. I saw on garnate lying on the floor near militants. We poured tea in cups for them. I got scared thinking that army may come and kill us. The accused Ishrat was talking to one militant namely Muzaffar as he was called by other persons there. Muzaffar and Ishrat leaves from spot and I stayed with other two militants. These militants enquired about my name and other particulars. The militant who was enquiring from me identified himself as Bilal. These two militants now lit cigrattes and said that we do not smoke in front of Muzaffar because he is our Chief (Ameer). After sometime Muzaffar and Ishrat came back. Since I was not in my senses, Muzaffar shouted upon me and asked for my phone. I handed over phone to them. After this Muzaffar told me to get some petrol from market and thereafter he will release my phone. I ran for market to bring petrol. I purchased petrol for Rs.300/- and was returning to spot but in midway I found Ishrat coming back in his car from the spot alongwith these (03) militants. When they reach near me, Ishrat and Muzaffar in an intimidating tone ask me to board the car. I board the car on this. Thereafter, we reach Brah. At Brah I tried to inquire from them as to where we are going. On this they shouted "shut your mouth".
However,, I got scared and was thinking of my home. Thereafter we reach Kharpora, where these (03) militants deboard the car and left us. On this day we reached back to our homes. However, before leaving us the militants directed Ishrat to come back tomorrow alongwith deponent. On the next date at around 4.30 PM Ishrat called me to his shop. I went there. From there I alongwith Ishrat boarded Ishrat's car and reached Paison. At Paison I deboarded car of Ishrat and took motorcycle from my sister's matrimonial home. On reaching crossing of Kharpora, Ishrat direts me to say at crossing and left me. After 15 minutes Ishrat called me and told me to leave, however, directed me not to disconnect the phone call till I reach home. Thereafter I reached home and disconnected the call. On the next preceeding days I again saw Ishrat with Bilal (militant) near his shop, however, I left for magrib prayers deponent has knowledge thereafter."
(ii) Statement on oath of witness Javied Ahmad Ganie S/o Abdul GaniGanie R/o Ranipora, recorded on 29th September, 2018.
"States that I was busy with my marriage on 1st and 2nd September, 2018. On 3rd of September Ishrat (accused in this case) came at my house at around 2.00PM. At 2.30 PM, his brother called him. He told Ishrat that at his shop some guests have come. I accompanied him to his shop. We went in Ishrat's car. He told me guests are waiting at Shaheen Public School. When we reached there I saw three persons. One was carrying bag. These three persons boarded Ishrat's car also at Shaheen Public School. He told me that they are Apple Merchants. On this, we went to my Orchards. When we reached there, I came down from car and opened gate of Orchards. As soon as these persons came out of B.A.No.70/2019 Page 24 car, I saw one among them carrying gun. I told Ishrat I will leave. But he stopped me and told me to get tea for them. However I requested them I have to go back home as guests are waiting for me. On this Ishrat agreed and allowed me to leave, however, told me to make tea at home for them. After I reached home, I got tea prepared. Therafter Ishrat came and took the tea."
(iii) Statement on oath of witness namely Sajad Ahmad Sheikh s/o Ab. Aziz Sheikh R/o Brimar Nasar, 26 years, Baker by profession, recorded on 30th October, 2018.
State that "I am baker by profession and usually visits home after every 15 days. Some, one and half months back I went to my homeat Brimar. When I reached to my home on that day I saw 03 militants inside my house. I begged before them to leave my home. Around 7.30 PM militants told me to go outside on road and show way to one car driver. When I reached on main road I saw one red Santro. It was driven by one driver namely Ishrat who resides at Ranipora. I knew this man because I used to work as baker at shop of one of his relatives. I took him to my house. He drank one glass of water at my home. Then he took all the three militants alongwith him in his car. One of the militant was known to me. His name is Muzaffar Ahmad. He was my apprentice at my shop at Muqqam in 2015."
(Underlining by us)
51. The three witnesses noted above had made statements to the Investigating Officer under Section 161 Cr.P.C. Thereafter, their statements have been recorded by the learned Judicial Magistrate Ist Class under Section 164-A Cr. P.C.
52. On the trial court record is also a detailed report of the SDPO dated 27th September, 2018 detailing the allegations against the appellant and the accused persons.
53. The appellant stands arrayed as an accused for commission of offences punishable under Section 18 and 38 of the Act, in this background.
The offences in the present case are extremely serious and impact the security of the State.
B.A.No.70/2019 Page 25
54. Mr Andrabi has also attempted to submit that the appellant was kept in custody beyond the permissible period of 180 days before filing of the challan and he became entitled to statutory bail. There is nothing before us to support this position.
55. In the remand application dated 14th November, 2018, it has been mentioned that accused mentioned in the remand form including Ishrat Hussain Sehikh had been released on bail and set free on 30th October, 2018 pursuant to orders from the competent court. For the reason that they failed to produce an order extension of bail, the accused persons mentioned in the remand form (including the appellant) were taken in to custody again.
56. It has been contended by Mr Arshad Andrabi, learned counsel for the appellant, at length that there was delay in issuance of the sanction under Section 45 of the Unlawful Activities (Prevention) Act.
57. Mr Andrabi has relied upon Section 45(2) of the Act which mandates that sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the State Government.
58. Section 45 of the Act reads thus:
"45. Cognizance of offences.--[(1) ]No court shall take cognizance of any offence-
(i) under Chapter III without the previous sanction of the Central Government or any officer authorised by the Central Government in this behalf;
B.A.No.70/2019 Page 26
(ii) under Chapters IV and VI without the previous sanction of the Central Government or, as the case may be, the State Government, and where such offence is committed against the Government of a foreign country without the previous sanction of the Central Government.
[(2) Sanction for prosecution under sub-section (1) shall be given within such time as may be prescribed only after considering the report of such authority appointed by the Central Government or, as the case may be, the State Government which shall make an independent review of the evidence gathered in the course of investigation and make a recommendation within such time as may be prescribed to the Central Government or, as the case may be, the State Government.]"
59. So far as the time limit within which this sanction has to be accorded, our attention has been drawn to Rule 4 of the Unlawful Activities (Prevention) (Recommendation and Sanction of Prosecution) Rules, 2008, which reads as follows:
"4. Time limit for sanction of prosecution.-The Central Government [or, as the case may be, the State Government] shall, under sub-section (2) of section 45 of the Act, take a decision regarding sanction for prosecution within seven working days after receipt of the recommendations of the Authority."
(Underlining by us)
60. In our view nothing turns on this submission for the purposes of considering the application for bail. We do not have before us, the date of receipt of recommendations of the authority by the State Government. This is a matter which requires to be placed before and considered by the trial court, as and when the objections are placed before it.
61. Before us it has been stanchly contended by Mr Andrabi that four of the co-accused, namely, Mubashir Ahmad Bhat; Adil Ahmad Thoker; Mubarak Ahmad Thoker and Abdul Qayoom Shah stand admitted to bail in the same case (arising out of FIR 84/2018 registered by the P/S Achabal, District Anantnag).
B.A.No.70/2019 Page 27
62. The detailed enunciation of the legal principles which guide consideration of an application for bail by a person arrested for involvement in commission of offences under the Unlawful Activities (Prevention) Act, 1967, would show that the case of the prosecution as well as the material against each of accused person has to be carefully assessed and evaluated by the court for the purposes of consideration of the application for bail. We have not been informed of the material which was available against these four co-accused. Even copies of the orders granting bail to them have not been placed before us. However, so far as the appellant is concerned, material has been placed by the investigating agency before the trial court.
63. The learned Special Judge has conducted a close enquiry into the matter and opined that there was sufficient evidence on record against the appellant for commission of offences punishable under Sections 18 and 38 of the Act and that the accusations against the appellant were prima facie true.
In view of the above discussion, it is not possible to take a view other than that taken by the learned Trial Judge.
64. One more matter which needs to be noticed is that according to the Investigating Agency, some of the active militants involved in the case have not been arrested till date. This would be yet another circumstance which would militate against grant of the prayer made by the appellant in the present case.
65. Before parting with the case, we are compelled to point out an extremely distressing fact which has emerged from the factual submissions made by learned counsel for both the sides.
66. The appellant stood arrested with regard to an incident which took place on night intervening 7/8 September, 2018 with regard to which FIR 84/2018 B.A.No.70/2019 Page 28 was registered by the P/S Achabal. After his arrest, the appellant had filed an application seeking bail which came to be granted by the order dated 1st October, 2018 when the learned Special Judge granted interim bail. It is Mr Andrabi's submission that this bail remained extended till 26th December, 2018.
67. Though disputed on behalf of the appellant, it is Mr N. H. Shah, learned Sr AAG's submission that after his arrest on 13th September, 2018 pursuant to the orders of the Sessions Court on 3rd October, 2018, the appellant was released on interim bail which was extended from time to time. Mr Shah has submitted that as this bail was not extended beyond 3rd of November, 2018, the appellant was re-arrested on 13th November, 2018.
68. It is on record and not disputed before us that the appellant had filed a bail application which came to be dismissed by order dated 27 th May, 2019 of the learned Trial Judge which has been impugned before us by way of the present appeal.
69. It is also an admitted fact that on 12th November, 2018, a detention order came to be passed under the provisions of the Public Safety Act by the competent authority which came to be challenged by way of HCP No.475/2018. This writ petition was accepted by the learned Single Judge by the judgment dated 21st April, 2019.
70. The above narration therefore establishes that on 21st April, 2019, the bail application filed by the appellant was pending before the trial court. This fact has not been brought to the notice of the learned Single Judge who has proceeded to allow the writ petition primarily for the reason that appellant was already in custody and there could be no apprehension of his being released as he had not filed a bail application.
B.A.No.70/2019 Page 29
71. Given the above discussion, there can be no doubt that the offence for which the appellant stands implicated is extremely serious in nature. The incident in which the appellant has been involved relates to an attack on a guard post. Active militants involved in the incident are stated to be still at large.
72. In our view this is extremely a serious matter. It was incumbent on both sides to honestly and fairly place the true and complete facts of the case before the writ court especially regarding the pendency of the bail application. Both sides have failed to do so. On the contrary this important fact stands suppressed leading to the quashing of the order of detention.
73. In view of the above, we are also of the view that as a matter of prudence and abundant caution in challenges to orders in serious cases including to orders under the Public Safety Act wherein offences relating to security of the State are involved, and, it is submitted on behalf of the detenue that criminal proceedings are also pending with the trial court concerned, a report ought to be called from the trial court regarding the status of the proceedings and the pendency of bail application as well as orders directing release of the detenue, if any.
74. Having regard to the above, we are also of the opinion that there are reasonable grounds for believing that the accusations against the appellant are prima facie true.
75. Needless to say, the view that we have taken, is only on a prima facie consideration and shall not bind the trial court at the time of final consideration of the case on merits after conclusion of the trial.
B.A.No.70/2019 Page 30
76. It is, accordingly, held that there is no merit in this appeal, which is hereby dismissed.
77. Let copies of this order be sent to the Chief Secretary of the State and the Principal Secretary to Law, Justice and Parliamentary Affairs, for information.
(TASHI RABSTAN) (GITA MITTAL)
JUDGE CHIEF JUSTICE
14.08.2019
Abdul Qayoom, PS.
Whether the order is speaking: Yes/No.
Whether the order is reportable: Yes/No.
This judgment is being pronounced by me in terms of Rule 138(4) of the Jammu & Kashmir High Court Rules.
(GITA MITTAL) CHIEF JUSTICE Srinagar:
14.08.2019 ABDUL QAYOOM LONE 2019.08.14 16:27 I attest to the accuracy and integrity of this document B.A.No.70/2019 Page 31