Delhi High Court
Javed Ali @ Javed vs National Investigation Agency on 14 November, 2024
Author: Amit Sharma
Bench: Prathiba M. Singh, Amit Sharma
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 21st October, 2024
Date of Decision: 14th November, 2024
+ CRL.A. 576/2024
JAVED ALI @ JAVED .....Appellant
Through: Mr. Aarif Ali, Mr. Pankaj Tiwari, Mr.
Mujahid Ahmad and Mr. Dhirendra
Kumar Verma, Advocates.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. Rahul Tyagi, SPP for NIA with
Mr. Sangeet Sibou, Advocate, Mr.
Jatin, APP for NIA with Mr. Aniket,
Advocate and Mr. Vikas Walia, APP
for NIA.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE AMIT SHARMA
JUDGMENT
AMIT SHARMA, J.
1. The present appeal under Section 21(4) of the National Investigation
Agency Act, 2008 read with Section 482 of the Code of Criminal Procedure,
1973, (for short, ‘CrPC’) seeks the following prayers: –
“a) Allow the appeal and set aside the order dismissing the
application via the impugned order dated 22.04.2024 passed by the
Ld. Additional Sessions Judge, ASJ-03 / Special Court (NIA), New
Delhi, arising out of FIR No. RC- 20/2017/NIA/DLI and further,
direct the jail authority to release the appellant from the Jail in the
present case and/ or;
b) pass such further orders as this Hon’ble Court may deem fit.”
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT
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2. The case of the NIA-Respondent against the present Appellant, as per
the reply dated 21.08.2024, filed to the present appeal is as under: –
“1. That in pursuance to the Order No 11011/46/2017-IS-IV dated
27.11.2017 issued by the Ministry of Home Affairs, Government
of India, the National Investigation Agency (hereinafter referred to
as “NIA”), PS New Delhi has registered a case vide FIR no. RC-
20/2017 /NIA/DLI dated 27.11.2017 under sections 120B, 468 &
471 of the Indian Penal Code; sections 17, 18, 18B, 19, 20, 21, 38,
39 & 40 of Unlawful Activities (Prevention) Act, 1967 (hereinafter
referred to as “UA (P) Act, 1967”); section 12 of the Passport Act;
section 34 of the Aadhar Act; section 7 & 25 of the Arms Act.
2. That, the case has been registered based on the allegations that
the proscribed terrorist outfit Laskar-e-Taiba (LeT) based in
Pakistan has activated its network based in UAE, to send money to
LeT operatives, based in India for reconnaissance of targets for
carrying out attacks. One of the LeT operatives operating in India
has been identified as Shiekh Abdul Naeem@ Sohail Khan (A-1 ),
who has already established his base in Bihar, Odisha, UP and
Jammu and Kashmir and is on the lookout for possible targets in
and around Delhi. He has also established contacts with other LeT
operatives in India, UAE and is regularly taking directions from
Amzad@ Rehan (A-8), LeT commander based in Pakistan and in
charge of operations in India, Bangladesh, Nepal, and Maldives.
On 28.11.2017, accused Shaikh Abdul Naeem @ Sohel Khan (A-
1) was arrested at Charbagh, Lucknow, Uttar Pradesh. He was
arrested for his involvement in raising funds from the main
operatives of Lashkar-e-Taiba (LeT) based Pakistan for terrorist
activities in India.
3. During investigation, it was established that accused Bedar
Bakht @ Dhannu Raja (A-2), Towseef Ahmad Malik @ Tipu (A-
3), Mafooz Alam, Habib Ur Rehman (A-9) and Amzad @ Rehan
@ Abdullah Rashid @ Abdul Aziz @ Wali (A-8) had arranged
shelter, logistics, mobile phones to accused Shaikh Abdul Naeem@
Sohel Khan (A-1), raised funds for the him and had also facilitated
him in engaging fake identity as Sonu/Sohel Khan who is actually
Shaikh Abdul Naeem (A-1).
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT
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4. That, Shaikh Abdul Naeem@ Sohail Khan (A-1), previously
sentenced to capital punishment for possession of special category
of explosives vide judgement dated 11.12.2018 by fast-track court
1, At Bongaon, North 24 Parganas U/S
419/420/468/469/471/121/121A/122/124A/120B in Case No.
179/2007 ofBongaon PS dated 04.04.2007.
5. That, during investigation of the present case, it was revealed that
accused/appellant Javed Ali @Javed (A-11) son of Mohammad
Imran, resident of Village- Khampur, Post Office- Khudda, Police
StationChapar, District- Muzaffamagar, Uttar Pradesh went to
Riyad, Saudi Arabia on work permit and he came in to contact with
accused Gul Nawaz (Accused now discharged, hereinafter read as
AD-10) (AD-10) resident of Phulas, Muzaffamagar, Uttar Pradesh,
who was working as a taxi driver at Riyadh, Saudi Arabia.
6. Investigation revealed that in the year 2017,
accused/appellant Javed (A-11) came into contact with one
Zakir, resident of Pakistan, Zakir told the accused Javed Ali
@Javed (A-11), that he wanted to send Rs. 3,50,000/- (Rupees
Three Lakh Fifty Thousand) to India to Accused Shiekh Abdul
Naeem @ Sohail Khan (A-1) at Muzaffarnagar, Uttar Pradesh.
Consequently, accused Javed Ali @ Javed (A-11) took an
amount ofRiyal-20,425/- (Twenty Thousand Four Hundred-
and Twenty- Five-Riyal currency of Saudi Arabia) from Zakir
along with mobile number of recipient accused Sheikh Abdul
Naeem@ Sohail Khan (A-1).
7. That the accused/appellant Javed Ali @ Javed (A-11), living
in Saudi Arabia had sent Rs. 3.5 lakh through Gul Nawaz (AD-
10), also resident of Saudi Arabia, to be delivered to the Sheikh
Abdul Naeem @ Sohail Khan (A-1). The Appellant had sent the
said funds to Gul Nawaz (AD- 10), who further sent the money
to Dinesh Garg (Accused now discharged, hereinafter read as
AD-6) (AD-6). On the instructions of Gul Nawaz (AD-10), the
accused turned approver Abdul Samad (Accused turned
approver witness, hereinafter read as A/W-5) (A/W-5) had
collected Rs 3.5 Lakh from the Dinesh Garg (AD-6) and asked
the accused Sheikh Abdul Naeem@ Sohail Khan (A-1) to arrive
at Roorkee to collect the aforesaid amount from him. The name
“Sohel” and mobile number of accused Sheikh Abdul Naeem
@ Sohail Khan (A-1) and amount was given to the accused
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turned approver Abdul Samad (A/W-5). However, the
handover of the said terror fund could not take place
as Sheikh Abdul Naeem@ Sohail Khan (A-1) denied to show
his identity card to the approver Abdul Samad (A/W-5).
Further on the directions of Gul Nawaz (AD-10), Abdul Samad
(A/W-5) denied delivery of money to accused Sheikh Abdul
Naeem@ Sohail Khan (A-1).
8. That, during the investigation, it was further revealed that
accused/ appellant Javed Ali @Javed (A-11) upon not able to
deliver the foresaid amount to accused Shaikh Abdul Naeem @
Sohel Khan (A-1), instead delivered it to his father i.e. accused
Mohd Imran (A-12)through accused turned approver Abdul Samad
(A/W-5). Mohd Imran (A-12) wilfully held the aforesaid amount
of Rs. 3 .5 Lakhs, actually meant for the use of the accused Shaikh
Abdul Naeem @ Sohel Khan (A-1), which amounts to “Proceeds
of terrorism”.
9. That, accused Javed Ali @ Javed ( A-11) was arrested on
10.11.2019 and during the personal search of the accused/appellant,
a coloured photograph was recovered and seized. Upon
interrogating accused/appellant, he disclosed and identified the
person in the seized photograph as Zakir resident of Pakistan from
whom the appellant received Rs. 3.5 Lakh to further deliver it to
accused Shaikh Abdul Naeem @ Sohel Khan (A-1) at
Muzaffarnagar UP.
10. That, upon further investigation, it surfaced that
accused/appellant Javed Ali @ Javed (A-11) made several VoIP
calls (Voice over Internet Protocol) to accused Shiekh Abdul
Naeem @ Sohail Khan (A-1) and out of them one audio file
numbered as +5492403-20171116170012.aac was found in the
extracted data, received from CERT-In vide its report dated
27th February 2017 in respect of the mobile phone, ‘ONE PLUS
A5000, marked as X3-MOB, which was seized from the accused
Shaikh Abdul Naeem@ Sohel Khan (A-1) at the time of his
arrest on 28.11.2017. The said audio file has established that on
16.11.2017 and 17.11.2017, the accused Shaikh Abdul Naeem@
Sohel Khan (A-1) had been in contact with the accused Javed
Ali@ Javed (A-11). The Appellant was the user of VOIP
numbers +5492403 and ISD numbers +916552507527 I
+966552507527 in Saudi Arabia. Transcript of this voice (D-
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT
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297) clearly establish that accused Javed Ali @ Javed was in
touch with Zakir and had conspired for raising, collecting, and
transferring terror fund to LeT operative accused Shaikh
Abdul Naeem@ Sohel Khan (A-1).
11. That, during investigation, the voice clip recovered from the
mobile data of accused Shaikh Abdul Naeem @ Sohel Khan (A-1)
and the sample voice of accused Javed Ali @ Javed (A-11) have
been forwarded to the Director, CFSL CBI, CGO Complex, New
Delhi vide letter No.RC-20/2017/NIA/DLI/15561 dated
06.12.2019 for the purpose of examination, matching and expert
opinion. As per the report vide No. CFSL-2019/P-1118 dated
25.09.2020 and certificate No.TC-5846 dated 25.09.2020 (D- 308)
it was opined that the sample voice of accused Javed Ali @ Javed
(A-11) matched with the voice of one person who was speaking in
the said voice clips recovered from the mobile data of A-1. It was
established that Javed Ali@ Javed (A-11) had spoken with accused
Shaikh Abdul Naeem @ Sohail Khan (A-1) on 16.11.2017 and
17.11.2017 in connection with the supply of fund to A-1 on the
direction of his handlers located in Saudi Arabia and Pakistan.
CFSL report dated 06.12.2019 annexed is ANNEXURE-R-1.
12. That, after completion of the investigation charge sheet was
filed against the accused persons after obtaining
permission/sanction of the Ceptral Government under section 45 of
the UA (P) Act, 1967 after carefully examining the case record and
relevant material. Thereafter, the Ld. NIA Special Court has taken
cognizance of the offences in the present case.
13. That, the Ld. Special Court vide Order dated 10.06.2022 has
also framed charges under section 120-B IPC and Sections 17, 18
& 40 of the UA (P) Act, 1967. Thus, charges against the appellant
have been framed under offences which are part of Chapter IV &
VI of the UA (P) Act, 1967 and therefore the Ld. Special Court has
given a finding on the prima facie offences against the appellant.”
(emphasis supplied)
SUBMISSIONS ON BEHALF OF THE APPELLANT
3. Learned Counsel appearing on behalf of the Appellant has submitted
that the latter is a permanent resident of District Muzaffarpur, Uttar Pradesh
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and had been working in Saudi Arabia as a labourer/carpenter for his
livelihood. It is further submitted that, even as per the case of the prosecution,
he had never met Accused No. 1, i.e., Shaikh Abdul Naeem @ Sohel Khan
(A-1). Learned Counsel has further contended that the Appellant is a victim
of circumstances and has been falsely implicated for alleged attempted
delivery of sum of Rs. 3.5 Lakhs to Accused No. 1. It was pointed out that the
case of the prosecution is that the present Appellant (arrayed as Accused No.
11 in the chargesheet) was living in Saudi Arabia at that relevant point in time
and it was Gul Nawaz (A-10), who was raising, receiving, collecting and
sending funds from Saudi Arabia to India through illegal (Hawala/Hundi)
channels and, in India, the accused, who has now become approver, Abdul
Samad (originally arrayed as Accused No. 5 in the chargesheet; AW-2/A-5),
was collecting the said money from Dinesh Garg (A-6) and Adish Kumar Jain
(A-7) and had attempted to disburse the said money, as per the directions of
Gul Nawaz (A-10), to Shaikh Abdul Naeem @ Sohel Khan (A-1), who is an
active operative of Lashkar-E-Taiba (for short, ‘LeT’), a proscribed
organization in India. It is also the case of the prosecution that the Appellant
had sent a sum of Rs. 3.5 Lakhs to Gul Nawaz (A-10), who had further sent
the said money to Dinesh Garg (A-6). It is pointed out by learned counsel for
the Appellant that the learned Special Judge, NIA, vide order on framing of
charge dated 10.06.2022 had discharged all the aforesaid four proposed
accused persons, i.e., the said approver Abdul Samad (A-5), Dinesh Garg (A-
6), Adish Kumar Jain (A-7) and Gul Nawaz (A-10).
4. It was pointed out that, on instructions of Gul Nawaz (A-10), Abdul
Samad (A-5) had collected Rs. 3.5 lakhs from Dinesh Garg (A-6) and asked
Shaikh Abdul Naeem @ Sohel Khan (A-1) to arrive at Roorkee and collect
Signature Not Verified
Digitally Signed By:BHASKAR
SINGH RAWAT
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the aforesaid amounts. It is submitted that the handover of the sum could not
take place as Shaikh Abdul Naeem @ Sohel Khan (A-1) denied to show his
identity card to Abdul Samad (A-5) and the said amount was ultimately
delivered to the father of the present Appellant, i.e., Mohd. Imran (A-12)
through the said Abdul Samad (A-5). It is submitted that apart from the
aforesaid circumstance, there is nothing on record to show that the Appellant
had knowingly sent the said sum to Shaikh Abdul Naeem @ Sohel Khan (A-
1) to support his alleged activities relating to LeT. It was further submitted
that the present appellant has been in custody since 10.11.2019 and has
undergone incarceration for more than 5 years and the trial is likely to take
substantial period of time to conclude. The prosecution has cited 221
witnesses in the chargesheet and only 9 prosecution witnesses have been
examined so far.
5. Learned counsel for the Appellant has placed reliance on Union of
India v. KA Najeeb, 2021 3 SCC 713; Javed Gulam Nabi Shaikh v. State
of Maharashtra & Anr., 2024 SCC OnLine SC 1693; Sheikh Javed Iqbal
@ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh, (2024) 8 SCC
293: 2024 SCC OnLine SC 1755, to contend that delay in trial is sufficient
ground for this Court to grant bail despite rigours of Section 43D (5) of the
Unlawful Activities (Prevention) Act, 1967, (for short, ‘UAPA’).
SUBMISSIONS ON BEHALF OF THE NIA/RESPONDENT
6. Learned SPP for NIA has submitted, on the lines of the reply as quoted
hereinabove and, has submitted that the allegations made in the chargesheet
have been found to be prima facie true and on the basis of the said allegations
charges have been framed qua the present Appellant by the learned Special
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SINGH RAWAT
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Judge for the offences punishable under Section 120B of the IPC and Sections
17, 18, 40 of the UAPA vide order on framing of charge. It is submitted that
in view of the above, rigours of Section 43D (5) of the UAPA would be
attracted. Reliance has been placed upon the following judgments:
i) Gurwinder Singh v. State of Punjab And Anr., (2024) 5 SCC
4031;
ii) Umar Khalid v. State of National Capital Territory of Delhi,
2022 SCC OnLine Del 3423: 2023 Cri LJ 980;
iii) Mohd. Amir Javed v. State (NCT of Delhi), 2023 SCC
OnLine Del 5777.
7. Learned SPP for NIA also submitted that the case of the prosecution is
based upon an audio file which records a call between the present Appellant
and Shaikh Abdul Naeem @ Sohel Khan (A-1) on 16th/17th November, 2017,
when the aforesaid Abdul Samad did not complete the money transaction. It
is submitted that the said conversation was retrieved from A-1’s mobile phone
after his arrest. The transcript of the said call is D-297 (annexed with the
chargesheet) and the FSL report regarding the identification of the voice of
the present Appellant is relied upon as D-308 and the same has been filed
alongwith the chargesheet. Based on the aforesaid, it is submitted that the
learned Special Judge has rightly rejected the bail application of the present
Appellant while coming to conclusion that the allegations made in the
chargesheet are prima facie true.
1
Review Petition (Crl.) No. 299/2024 against this judgment has been dismissed vide order dated 16th July,
2024: 2024 SCC OnLine SC 1777
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Digitally Signed By:BHASKAR
SINGH RAWAT
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ANALYSIS AND FINDINGS
8. The prosecution case essentially revolves around Shaikh Abdul Naeem
@ Sohel Khan (A-1). It is alleged that the aforesaid accused is an operative
of proscribed terrorist organization LeT, which is based in Pakistan. The case
of the prosecution is that the aforesaid accused was previously sentenced to
capital punishment for possession of special categories of explosive vide
judgment dated 11.12.2018 by learned Fast Track Court-1 at Bongaon, North
24 Parganas, under Sections 419/420/468/469/471/478/
121/121A/122/124A/120B/126 of the IPC in Case No. 179/2007 of PS
Bongaon dated 04.04.2007. It is pointed out that during the transport of the
said accused (A-1) from Maharashtra to Kolkata for court attendance, he had
escaped from the custody of the police near Raigarh, Chattishgarh Railway
Station on 24.08.2014. The following has been recorded in the chargesheet: –
“17.3 Investigation has further established that the accused Shaikh
Abdul Naeem @ Sohel Khan [A-1], after his escape from the Police
custody on 24 August 2014, arrived at Ramnagar, Varanasi and
through ‘Nimbuuz’ a messaging application re-established his contact
with his handler Amzad @ Abdullah Rashid @ Rehan @ Abdul Aziz
@ Wali[A-8] who had arranged his further shelter at Goplaganj and
Siwan, Bihar. Accordingly the accused Shaikh Abdul Naeem @ Sohel
Khan [A- 1] shifted his base from Ramnagar, Varanasi, UP to
Gopalganj, Bihar in October- November 2014. Investigation has
established that with the active connivance of his handlers and
associates including accused Bedar Bakht @ Dhannu Raja [A-2 ] and
the accused turned approver Mahfooz Alam [AW-1/ A-4] and others,
obtained fake identity documents and thus established himself as
Sohel Khan , an assumed and fake name, at Gopalganj , Bihar and
received , raised and collected money ‘terror fund’ from the UAE
through Western Union Services Pvt . Ltd .”
9. It is further recorded in the chargesheet that after arrest of the aforesaid
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Accused (A-1), during investigation, the following was revealed: –
“17.23 During the investigation, it has been established that the
Shaikh Abdul Naeem @ Sohel Khan [A- l ] has regularly received
funds originating from the UAE and Saudi Arabia. The accused
Shaikh Abdul Naeem @ Sohel Khan [A- l ] has also received Rs 4.6
Lakh in August 2016 at Aurangabad through unknown hawala
channel, out of which Rupees 4.29 Lakh has been deposited by him in
Federal Bank branch Jalgaon Maharashtra into his own bank account
in the Federal bank, Gopal Ganj, opened in the his name as ‘Sohel
Khan’.
17.24 Investigation has established that accused -Shaikh Abdul Naem
@ Sohel Khan [A-l] had also attempted to receive and collect funds
from his handler in the Saudi Arabia sent by them through the hawala
operators, based in the Saudi Arabia to hawala operators based in
India including the accused Adish Kumar Jain [A-7] and accused
Dinesh Garg@ Ankit Garg [A-6] and their hawala conduits based in
Muzaffarnagar, UP. The investigation has established the telephonic
interconnection between these hawala operators based in the Saudi
Arabia and India. The modus opernadi unearthed during the
investigation shows that the hawala operators based in India including
the accused Adish Kumar Jain [A-7] and accused Dinesh Garg @
Ankit Garg [A-6] and others receive cash through hawala channles
and also the gold smuggled into India from the Saudi Arabia through
gold smugglers, who are mostly the conduits of the aforementioned
hawala operators. These conduits at the Saudi Arabia end use Indian
from Muzaffarnagar, U.P., based in Reyadh, Saudi Arabia, to collect
money from different sources and send it to India through this hawala
channel. These hawala operators, most of whom are Indian, now in
the Saudi Arabia, are in contact with hawala operator in India
including the accused Adish Kumar Jain [A-7] and accused Dinesh
Garg @ Ankit Garg [A-6] and hawala conduits based in
Muzaffarnagar, UP. These accused hawala operators also sometimes
provide cash in exchange of gold smuggled by these hawala operators
from the Saudi Arabia through their conduits.
17.25 Investigation has further established that this hawala channel
has been used by LeT, the Proscribed terrorist organization in India,
to send money (terror fund) to their members / cadres, active in India.
In this case, the Amzad @ Abdullah Rashid @ Rehan @ Abdul Aziz
@ Wali[A-8] and accused Habib-ur Rehman [A-9], the handlers of
the accused Shaikh Abdul Naeem @ Sohel Khan [A-l ], gave money
to the accused Javed (A-11) son of accused Mohd Imran (A- 12),Signature Not Verified
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resident of Khampur, Khudda, Muzaffarnagar, UP, who is in the
Saudi Arabia. The aforesaid Javed in connivance with accused Gul
Nawaz (A-10) son of Wamis, resident of Phullas, Muzaffarnagar, UP,
now in the Saudi Arabia, sent Rupees 3.5 Lakh from Saudi Arabia
through the aforesaid hawala channel to Shaikh Abdul Naeem @
Sohel Khan [A- l].
17.26 Investigation has further revealed that on 16.11.2017, the
accused Javed (A-11), using his Saudi mobile number
00966552507527 has contacted the accused Shaikh Abdul Naeem @
Sohel Khan [A- l] on his mobile number 7609831582 and asked him
to go to Deoband and collect the money. On 17.11.2017, the accused
Shaikh Abdul Naeem @ Sohel Khan [A- l ] had gone to Deoband and
thereafter had reached at Roorkee Roadways to receive Rupees 3.5
Lakh through hawala channel. During their telephonic conversation
on 16.11.2017, the aforesaid accused Javed (A- 11) had given / shared
his Saudi Arabia mobile number 00966552507527 by making a
missed call at mobile number 7609831582 of the accused Shaikh
Abdul Naeem @ Sohel Khan [A-l]. The accused Gul Nawaz (A-10),
who is maternal cousin of the accused turned approver witness Abdul
Samad [AW-2 /A-5], had sent / shared the name, mobile number and
amount to be given to the accused Shaikh Abdul Naeem @ Sohel
Khan [A- l] through WhatsApp to the accused turned approver
witness Abdul Samad [AW-2 / A-5], his hawala conduit / courier
operating in the Districts of Saharanpur, Muzaffarnagar and Bijnour [
U.P] .
17.27 Investigation has further revealed that on 17.11.2017, the
accused turned approver witness Abdul Samad [AW- 2 / A-5] , user
of mobile number 919639448468, as directed by accused Gul Nawaz
(A-10) , his handler in the Saudi Arabia , collected Rs 5 Lakh from
the accused Dinesh Garg @ Ankit Garg [A-6], who runs a shop at
Sarafa Bazar, Muzaffarnagar, U .P.. He was arrested on 08.02.2018
along with another Jeweler and hawala operator accused Adish Kumar
Jain [A -7], owner of M /S Arihant Jeweler, Muzaffarnagar, UP].
17.28 Investigation has established that on 17.11.2017, the accused
Shaikh Abdul Naeem @ Sohel Khan [A- l ] had met the accused
turned approver witness Abdul Samad [AW-2 / A-5] at Roorkee
Roadways [ bus stand ]. The telephonic contact between the accused
Shaikh Abdul Naeem @ Sohel Khan [A- 1], user ‘ of mobile number
‘ 7609831582’ and the accused turned approver witness Abdul Samad
[AW-2 / A-5], user of mobile number ‘ 9639448468’ on 17.11.2017
has been established through CDR analysis of their aforesaid mobileSignature Not Verified
Digitally Signed By:BHASKAR
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numbers. The accused turned approver witness accused Abdul Samad
[AW – 2 / A- 5] had met the accused Shaikh Abdul Naeem @ Sohel
Khan [A-l], however, the transaction of Rupees 3.5 Lakh could not be
completed as the accused Shaikh Abdul Naeem @ Sohel Khan [A- l ]
did not want tour could not produce any credible identity proof or
document except his aforesaid mobile number as his identity.
17.29 During the investigation, it has surfaced that the accused Javed
[A- l 1] son of Mohd Imran, originally resident of Khampur, Khudda,
Muzaffarnagar, UP, now in the Saudi Arabia, had sent Rupees 3.5
Lakh through the accused Gul Nawaz [A- 10 ) , son of Wamis,
resident of Phullas, Muzaffarnagar , UP, now in the Saudi Arabia, to
be delivered to the accused Shaikh Abdul Naeem @ Sohel Khan [A-
l ]. On the direction of the accused Gul Nawaz [A-10], the accused
turned approver witness Abdul Samad [AW -2 / A- 5], has collected
Rupees 3.5 Lakh from the accused Ankit Garg @ Dinesh Garg [ A-4]
on 17.11. 2017 and had asked the accused Shaikh Abdul Naeem @
Sohel Khan [A- 1] to arrive at Roorkee Roadways [bus stand] to
collect the aforesaid amount from him. The name and mobile number
of accused Shaikh Abdul Naeem @ Sohel Khan [A – l ] was given to
the accused turned approver witness Abdul Samad [AW-2 / A-5] by
the accused Gul Nawaz [A – 10] from the Saudi Arabia.
17.30 During the investigation, one audio file numbered as +5492403-
20171116170012.aac was found in the extracted data, received from
CERT- In vide its report dated 27 February 2017 in respect of the
mobile phone , ‘ONE PLUS A5000, 7.1.1 NMF26X 327 with IMEI
number 8651240341927345, marked as X3-MOB, seized from the
accused Shaikh Abdul Naeem @ Sohel Khan [A- l ] at the time of his
arrest on 28.11.2017 , has established that on 16.11.2017 and
17.11.2017, the accused Shaikh Abdul Naeem @ Sohel Khan [A- l ]
has been in telephonic communication with the accused Javed [A- 11]
son of Mohd Imran, resident of Khampur, Khudda, Muzaffarnagar,
UP, an hawala operator in the Kingdom of Saudi Arabia, user of VOIP
numbers +5492403 and ISD numbers +916552507527 /
+966552507527 in the Saudi Arabia.
17.31 Investigation has established that the accused Shaikh Abdul
Naeem @ Sohel Khan [A- l ] had many contacts in the Saudi Arabia
including his handler namely–Habib-ur-Rehman,– user of mobile
numbers 00966553997172, 966596159826 and 966536503432.
17.32 Investigation has further established that Rupees Three Lakh
Fifty Thousand, which accused turned approver Abdul Samad [AW-
2 / A-5] had received from accused Dinesh Garg @ Ankit Garg [A-
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6], has originally come from his handler in the Saudi Arabia, through
accused Habib-ur-Rehman [A- 9], who in turn send it to India through
the international hawala channel with accused Javed [A – 11 ] accused
Gul Nawaz [A-10] on Saudi Arabia end and-accused Dinesh Garg @
Ankit Garg [A-6]-accused turned approver Abdul Samad [AW-2 / A-
5] on Indian end, was actually to be delivered to the accused Shaikh
Abdul Naeem @ Sohel Khan [A- l ], an active operative of LeT, who
has been active in the preparation and furtherance of terrorist activities
in India.
17.33 During the investigation, it has been further established that
there were several calls and messages exchanged between the accused
Shaikh Abdul Naeem @ Sohel Khan [A- l ] and the accused Habib-
ur-Rahman @ Habib [A-9] during the period of the aforesaid
transaction i.e 16.11.2017 to 18.11.2017. Further the accused Javed
[A- 11 ] son of accused Mohd Imran [A-12 ] had also made several
VOIP calls using VOIP number + 5492403 to the accused Shaikh
Abdul Naeem @ Sohel Khan [A- l] on his mobile number
7609831582 . Further he has made the call using same VOIP number
+ 5492403 to his father accused Mohd Imran [A- 12 ] on 18 November
2017. Out of the several aforesaid VOIP calls, one was attended by
the accused Shaikh Abdul Naeem @ Sohel Khan [A- 1] and same has
been found recorded on his mobile number as audio clip of same date
and time.”
10. On the basis of the aforesaid chargesheet and material placed on
record, the Appellant has been charged for the commission of offences
punishable under Section 120B of the IPC and Sections 17, 18, 40 of the
UAPA. But for the purposes of bail, this Court can examine if the Appellant
can make out a prima facie case for the bail satisfying the requirement of
Section 43D (5) of the UAPA. Hon’ble Supreme Court in Javed Gulam Nabi
Shaikh (supra), while dealing with an investigation by the NIA and where
the Accused/Appellant had been in incarceration for four years, had observed
and held as under: –
“20. We may hasten to add that the petitioner is still an accused; not a
convict. The over-arching postulate of criminal jurisprudence that an
accused is presumed to be innocent until proven guilty cannot be
brushed aside lightly, howsoever stringent the penal law may be.”
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11. The Hon’ble Supreme Court in Mohd. Muslim @ Hussain v. State
(NCT of Delhi), 2023 SCC OnLine SC 352, while considering the
parameters of granting bail in view of Section 37 of the NDPS Act, wherein,
one of the requirements of the Court to grant bail to the accused is that the
Court should be satisfied that the accused is not guilty, had observed and held
as under: –
“20. A plain and literal interpretation of the conditions under Section 37
(i.e., that Court should be satisfied that the accused is not guilty and
would not commit any offence) would effectively exclude grant of bail
altogether, resulting in punitive detention and unsanctioned preventive
detention as well. Therefore, the only manner in which such special
conditions as enacted under Section 37 can be considered within
constitutional parameters is where the court is reasonably satisfied on
a prima facie look at the material on record (whenever the bail
application is made) that the accused is not guilty. Any other
interpretation, would result in complete denial of the bail to a person
accused of offences such as those enacted under Section 37 of the NDPS
Act.
21. The standard to be considered therefore, is one, where the court
would look at the material in a broad manner, and reasonably see
whether the accused’s guilt may be proved. The judgments of this
court have, therefore, emphasized that the satisfaction which courts
are expected to record, i.e., that the accused may not be guilty, is
only prima facie, based on a reasonable reading, which does not call
for meticulous examination of the materials collected during
investigation (as held in Union of India v. Rattan Malik19). Grant of
bail on ground of undue delay in trial, cannot be said to be fettered by
Section 37 of the Act, given the imperative of Section 436A which is
applicable to offences under the NDPS Act too (ref. Satender Kumar
Antil supra). Having regard to these factors the court is of the opinion
that in the facts of this case, the appellant deserves to be enlarged on
bail.”
(emphasis supplied)
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12. In Shoma Kanti Sen v. State of Maharashtra And Another, (2024)
6 SCC 591, the Hon’ble Supreme Court after comparing the provisions of
Section 37 of the NDPS Act and Section 43D (5) of the UAPA, had observed
and held as under: –
“22. In Zahoor Ahmad Shah Watali [NIA v. Zahoor Ahmad Shah
Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] , it has been, inter
alia, held : (SCC pp. 24-27, para 23)
“23. By virtue of the proviso to sub-section (5), it is the
duty of the Court to be satisfied that there are reasonable
grounds for believing that the accusation against the
accused is prima facie true or otherwise. Our attention
was invited to the decisions of this Court, which has
had an occasion to deal with similar special
provisions in TADA and Mcoca. The principle
underlying those decisions may have some bearing
while considering the prayer for bail in relation to
the offences under the 1967 Act as well. Notably,
under the special enactments such as
TADA, Mcoca and the Narcotic Drugs and
Psychotropic Substances Act, 1985, the Court is
required to record its opinion that there are reasonable
grounds for believing that the accused is “not guilty” of
the alleged offence. There is a degree of difference
between the satisfaction to be recorded by the Court
that there are reasonable grounds for believing that
the accused is “not guilty” of such offence and the
satisfaction to be recorded for the purposes of the
1967 Act that there are reasonable grounds for
believing that the accusation against such person is
“prima facie” true. 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
accused concerned 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
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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 the
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 supplied)
13. Again recently, the Hon’ble Supreme Court in Jalaluddin Khan v.
Union of India, 2024 SCC OnLine SC 1945, while dealing with the
provision of Section 43D (5) of the UAPA, has observed and held as under: –
“13. Learned ASG relied upon a decision of this Court in the case
of Gurwinder Singh v. State of Punjab2. This Court extensively
considered its earlier decision in the case of National Investigation
Agency v. Zahoor Ahmad Shah Watali3, which deals with
interpretation of Section 43D(5). Paragraph 32 of the said decision
reads thus:
“32. In this regard, we need to look no further than Watali
case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2
SCC (Cri) 383] which has laid down elaborate guidelines on the
approach that courts must partake in, in their application of the bail
limitations under the UAP Act. On a perusal of paras 23 to 24 and 26
to 27, the following 8-point propositions emerge and they are
summarised as follows:
32.1. Meaning of “prima facie true”:
On the face of it, the materials must show the complicity of the
accused in commission of the offence. The materials/evidence
must be good and sufficient to establish a given fact or chain of
facts constituting the stated offence, unless rebutted or
contradicted by other evidence.
32.2. Degree of satisfaction at pre charge-sheet, post charge-sheet
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and post-charges — compared:
“26. … once charges are framed, it would be safe to assume that
a very strong suspicion was founded upon the materials before
the Court, which prompted the Court to form a presumptive
opinion as to the existence of the factual ingredients constituting
the offence alleged against the accused, to justify the framing of
charge. In that situation, the accused may have to undertake an
arduous task to satisfy the Court that despite the framing of
charge, the materials presented along with the charge-sheet
(report under Section 173 of CrPC), do not make out reasonable
grounds for believing that the accusation against him is prima
facie true. Similar opinion is required to be formed by the Court
whilst considering the prayer for bail, made after filing of the first
report made under Section 173 of the Code, as in the present
case.”
32.3. Reasoning, necessary but no detailed evaluation of evidence:
“24. … the exercise to be undertaken by the Court at this stage–of
giving reasons for grant or non-grant 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.”
32.4. Record a finding on broad probabilities, not based on proof
beyond doubt:
“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.”
32.5. Duration of the limitation under Section 43-D(5):
“26. … the special provision, Section 43-D of the 1967 Act, applies
right from the stage of registration of FIR for the offences under
Chapters IV and VI of the 1967 Act until the conclusion of the trial
thereof.”
32.6. Material on record must be analysed as a “whole”; no
piecemeal analysis
“27. … the totality of the material gathered by the investigating
agency and presented along with the report and including the case
diary, is required to be reckoned and not by analysing individual
pieces of evidence or circumstance.”
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32.7. Contents of documents to be presumed as true:
“27. … The Court must look at the contents of the document and take
such document into account as it is.”
32.8. Admissibility of documents relied upon by prosecution
cannot be questioned:
The materials/evidence collected by the investigation agency in
support of the accusation against the accused in the first information
report must prevail until contradicted and overcome or disproved by
other evidence…. In any case, the question of discarding the
document at this stage, on the ground of being inadmissible in
evidence, is not permissible.”
(emphasis added)
14. There is one more decision of this Court in the case of Thwaha
Fasal v. Union of India4, which again deals with the scope of Section
43D(5) of UAPA. After considering the decision in the case of Zahoor
Ahmad Shah Watali3, in fact, in paragraph 24, the case has been
extensively reproduced. Thereafter, in paragraph 26, this Court held thus:
“26. Therefore, while deciding a bail petition filed by an accused
against whom offences under Chapters IV and VI of the 1967 Act
have been alleged, the court has to consider whether there are
reasonable grounds for believing that the accusation against the
accused is prima facie true. If the court is satisfied after examining
the material on record that there are no reasonable grounds for
believing that the accusation against the accused is prima facie
true, then the accused is entitled to bail. Thus, the scope of inquiry
is to decide whether prima facie material is available against the
accused of commission of the offences alleged under Chapters IV
and VI. The grounds for believing that the accusation against the
accused is prima facie true must be reasonable grounds. However,
the court while examining the issue of prima facie case as required
by subsection (5) of Section 43-D is not expected to hold a mini
trial. The court is not supposed to examine the merits and
demerits of the evidence. If a charge-sheet is already filed, the
court has to examine the material forming a part of charge-sheet
for deciding the issue whether there are reasonable grounds for
believing that the accusation against such a person is prima facie
true. While doing so, the court has to take the material in the
charge-sheet as it is.”
(emphasis added)
4
15. As held in the case of Thwaha Fasal , the Court has to examine the
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material forming part of the charge sheet to decide whether there are
reasonable grounds for believing that the accusations against the person
applying for bail are prima facie true. While doing so, the court must take
the charge sheet as it is.”
(underline supplied)
14. In view of the aforesaid discussion, this Court is to consider whether
the Appellant, despite being formally charged for the offences punishable
under Section 120B of the IPC and Sections 17, 18, 40 of the UAPA, can
make out a prima facie case for grant of bail satisfying the requirement of
Section 43D (5) of the UAPA. This Court in terms of the aforesaid parameters,
will proceed to examine the case of the present Appellant. Sections 17, 18 and
40 of the UAPA read as under: –
“[17. Punishment for raising funds for terrorist act.–Whoever, in
India or in a foreign country, directly or indirectly, raises or provides
funds or collects funds, whether from a legitimate or illegitimate source,
from any person or persons or attempts to provide to, or raises or collects
funds for any person or persons, knowing that such funds are likely to be
used, in full or in part by such person or persons or by a terrorist
organisation or by a terrorist gang or by an individual terrorist to commit
a terrorist act, notwithstanding whether such funds were actually used or
not for commission of such 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.
Explanation.–For the purpose of this section,–
(a) participating, organising or directing in any of the acts stated therein
shall constitute an offence;
(b) raising funds shall include raising or collecting or providing funds
through production or smuggling or circulation of high quality
counterfeit Indian currency; and
(c) raising or collecting or providing funds, in any manner for the benefit
of, or, to an individual terrorist, terrorist gang or terrorist organisation for
the purpose not specifically covered under Section 15 shall also be
construed as an offence.]
18. Punishment for conspiracy, etc.–Whoever conspires or attempts
to commit, or advocates, abets, advises or 33[incites, directs or
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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.
*** *** ***
40. Offence of raising fund for a terrorist organisation.–(1) A person
commits the offence of raising fund for a terrorist organisation, who, with
intention to further the activity of a terrorist organisation,–
(a) invites another person to provide money or other property, and
intends that it should be used, or has reasonable cause to suspect that it
might be used, for the purposes of terrorism; or
(b) receives money or other property, and intends that it should be used,
or has reasonable cause to suspect that it might be used, for the purposes
of terrorism; or
(c) provides money or other property, and knows, or has reasonable cause
to suspect, that it would or might be used for the purposes of terrorism.
68
[Explanation.–For the purposes of this sub-section, a reference to
provide money or other property includes–
(a) of its being given, lent or otherwise made available, whether or not
for consideration; or
(b) raising, collecting or providing funds through production or
smuggling or circulation of high quality counterfeit Indian currency.]
(2) A person, who commits the offence of raising fund for a terrorist
organisation under sub-section (1), shall be punishable with
imprisonment for a term not exceeding fourteen years, or with fine, or
with both.”
15. As pointed out earlier that the role assigned to the present Appellant is
with regard to an attempted handing over of Rs. 3.5 Lakhs to the Accused
No.1, who is an alleged LeT operative and thus providing him funds to further
his activity. The prosecution relies upon a transcript of a conversation between
the Appellant and Accused No.1. It is the case of the prosecution that the voice
of the present Appellant had matched with the conversation that took place
between the present Appellant and the Shaikh Abdul Naeem @ Sohel Khan
(A-1), which was retrieved from the phone of the Accused No.1. The English
translation of the transcript of the said conversation relied upon by the
prosecution is as under: –
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16. As per the case of the prosecution, the present Appellant was sitting
along with one Zakir who at the relevant time, when this conversation was
going on, was in constant touch with Habib-ur-Rahman (A-9), who is the
alleged handler of the Accused No.1, i.e., Shaikh Abdul Naeem @ Sohel Khan
(A-1). The aforesaid circumstance has been placed on record to demonstrate
that the present Appellant knew that the money was being sent to Shaikh
Abdul Naeem @ Sohel Khan (A-1), who is a LeT operator and in support of
his activity in India.
17. It will be relevant to note here that the case of the prosecution itself is
that Shaikh Abdul Naeem (A-1), after his escape from custody, changed his
name to Sohel Khan based on the identity document provided by his
associates. There is nothing on record to show that the present Appellant had
knowledge about the existence of Shaikh Abdul Naeem (A-1) or the fact that
he was LeT operative and had escaped from custody way back in 2014. The
nature of the conversation as reflected from the transcript, in fact, shows that
Shaikh Abdul Naeem (A-1) was referring to himself in his new assumed
identity, i.e., Sohel Khan. The case of the prosecution is that Zakir, whose part
of conversation as reflected in the transcript, was in constant touch with
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Habib-ur-Rahman (A-9), who was stated to be the handler of Shaikh Abdul
Naeem (A-1), is an incriminating circumstance against the present Appellant.
It is pertinent to note that there is nothing on record to show that the
conversation attributed to Zakir is of the person who is supposed to be known
as Zakir. Secondly, assuming that the person referred to as Zakir is the one
who was present at the time when the Appellant and Accused No.1 (Shaikh
Abdul Naeem @ Sohel Khan) were having a conversation, the same would
not lead to presumption that the present Appellant knew the real status of the
person who was being addressed as Sohel. It is a matter of record that apart
from the said transcript or the conversation placed on record, there is nothing
else to connect the present Appellant with Accused No. 1 or for that matter
with Habib-ur-Rahman (A-9). It is further a matter of record that the said
money was never finally handed over to Shaikh Abdul Naeem @ Sohel
Khan/A-1. There is no other circumstance or transaction placed on record by
the prosecution to show that the present Appellant was in any way responsible
for providing funds to Shaikh Abdul Naeem @ Sohel Khan/A-1 apart from
the aforesaid failed transaction.
18. It has been the case of the prosecution that the present Appellant was
dealing in money being sent through hawala/hundi channels and the person
who was collecting and disbursing money, at the instructions of Gul Nawaz
(A-10), was Abdul Samad (AW-2/A-5), who had later turned as approver
witness, has been kept in Column 12 of the chargesheet, and now, stood
discharged. It is also matter of record that Gul Nawaz (A-10) has also been
discharged. It is pertinent to note that the said approver witness, Abdul Samad
(AW-2/A-5), in his statement has not taken the name of the present Appellant.
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19. In the totality of the facts and circumstances of the case, this Court is
of the considered opinion that the Appellant has been able to satisfy the
requirement of Section 43D (5) of the UAPA for grant of bail.
20. It is a matter of record that the Appellant has been in judicial custody
since 10.11.2019. As per the Nominal Roll dated 13.08.2024, the Appellant,
as on 12.08.2024, has undergone incarceration for 4 years 9 months and 3
days. Out of the 221 witnesses cited by the prosecution in the chargesheet,
only 9 have been examined so far. Therefore, the trial is likely to take some
time to conclude.
21. The present appeal is allowed. The impugned order dated 22.04.2024
is hereby set aside.
22. The Appellant is directed to be released on bail upon his furnishing a
personal bond in the sum of Rs. 50,000/- alongwith two sureties of like
amount to the satisfaction of the learned Special Court, further subject to the
following conditions: –
i. The memo of parties shows that the Appellant is a resident of
Khampur, Khudda, Muzaffarnagar, Uttar Pradesh. In case of any
change of address, the Appellant is directed to inform the same to
the learned Special Court and the Investigating Officer.
ii. The Appellant shall report to the concerned Investigating Officer of
NIA at his Office on 1st Monday of every month at 04:00 PM and
the concerned officer is directed to release him by 05:00 PM after
recording his presence and completion of all the necessary
formalities.
iii. The Appellant shall not leave India without the prior permission of
the learned Special Court.
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iv. The Appellant is directed to give all his mobile numbers to the
Investigating Officer and keep them operational at all times.
v. The Appellant shall not, directly, or indirectly, tamper with evidence
or try to influence the witnesses in any manner.
vi. The Appellant shall appear before the learned Special Court, as and
when, the matter is going to be taken up for hearing.
vii. In case, it is established that the Appellant tried to tamper with the
evidence, the Respondent/NIA will be at liberty to apply for
cancellation of bail.
23. The appeal stands disposed of along with all the pending application(s),
if any.
24. Needless to state that all the observations made in this judgment are to
satisfy this Court whether a prime facie case for bail is made out or not qua
the present Appellant only and nothing mentioned hereinabove is an opinion
on the merits of the case of the Appellant or other Accused and the
observations made herein are for the purpose of present appeal.
25. Copy of this judgment be communicated to the concerned Jail
Superintendent for necessary information and compliance.
26. Judgment be uploaded on the website of this Court, forthwith.
AMIT SHARMA
(JUDGE)
PRATHIBA M. SINGH
(JUDGE)
NOVEMBER 14, 2024/sn/bsr
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