Mr. Colin Gonsalves, Sr. Adv. With Mr. Kamran Khwaja, Adv v. NATIONAL INVESTIGATION AGENCY

Judgment

1. The present Criminal Appeal has been filed by the Appellant under Section 21 of the National Investigation Agency („NIA‟) Act, 2008 to assail the Order dated 07.07.2023 passed by the learned Additional Session Judge – 03 (New Delhi), Patiala House Courts, New Delhi (hereinafter referred to as, „Trial Court‟) in NIA case Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 bearing RC No. 10/2017/NIA/DLI titled NIA v. Hafiz Saeed & Ors., whereby the Bail application of the Appellant was dismissed. 2. The present case emanates from the registration of the NIA case bearing no. RC-10/2017/NIA/DLI for offences under Sections 120B, 121 and 121A of the Indian Penal Code, 1860 (IPC), and Sections 13, 16, 17, 18, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 [UA(P) Act], by the NIA, pursuant to the Order No. 11011/2017-IS-IV issued by the Ministry of Home Affairs on

30.05.2017. The Prosecution‟s case is premised on an alleged Conspiracy hatched among several accused persons who were purportedly engaged in secessionist activities in the erstwhile State of Jammu and Kashmir („J&K‟) through various terrorist activities, such as organization of violent protests, instigating the general public to commit violence, pelting of stones at the Security Forces, burning of Schools, damaging public property, etc and waging war against the Union of India. Their ultimate aim and objective was to seek the secession of the J&K from the Union of India, all in the garb of „Freedom‟. 3. The Prosecution‟s case the NIA launched an investigation and tried to unfold the said Conspiracy, during which it was allegedly found that the accused persons were members of various terrorist organizations and unlawful associations, such as Lashkar-e-Taiba (LeT), Hizb-ul-Mujahideen (HM), Jammu Kashmir Democratic Freedom Party (JKDFP), Jammu Kashmir Liberation Front (JKLF), Jaish-e- Mohammad (JoM) etc., and are members of the Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 All Parties Hurriyat Conference (APHC). Their operations were allegedly funded through a regular influx of large sums of money obtained by them through domestic and international unlawful channels, including hawala networks, etc. This funding, it is alleged, sustained the continued perpetration of violence in the valley, despite the heavy deployment of the Security Forces. 4. The investigation allegedly established that the secessionist and separatist leaders were also raising funds, to be utilized in the aforementioned terrorist and separatist activities through the Line of Control (LoC) trade. This was allegedly done by way of directing the Kashmiri traders to engage in under-invoicing and under-weighing of the goods which were imported through the LoC barter trade and to commit irregularities in the maintenance of records, etc. They would then sell the goods to the traders in Delhi, and a portion of the profits was allegedly used for anti-national propaganda, with the objective of mobilizing violent protests and other unlawful activities in J&K. The traders, so engaged, would have relatives across the borders who were closely associated with the terrorist organisations, especially Hizb-ul- Mujahideen, and who would smuggle weapons and contrabands. 5. Upon conclusion of the investigation, though, the NIA filed its main Chargesheet on 18.01.2018 under Sections 120B, 121, 121A, and 124 A of the IPC, read with Sections 13, 16, 17, 18, 20, 38, 39, and 40 of the UA(P) Act against 12 accused persons, however, the investigation was still underway with respect to the other suspected individuals who were being interrogated by the NIA. Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023

In this background, the first Supplementary Chargesheet came to be filed by the NIA, and in the course of the investigation, the Appellant was arrested on 04.06.2019. 7. In continuation of the investigations, a second Supplementary Chargesheet was filed by the NIA on 04.10.2019 against the Appellant under Sections 120B, 121, 121A, and 124A of the IPC read with Sections 13, 16, 17, 18, 20, 38, 39, and 40 of the UA(P) Act. Following additional accused persons were also arrayed in the said Supplementary Chargesheet.  Mohd. Yasin Malik @ Aslam (A-14)  Shabir Ahmad Shah @ Shabir Shah (A-15)  Masarat Alam @ Masarat Alam Bhat (A-16)  Syeda Aasiya Andrabi @ Asiya Andrabi @ SyedahAasiya Firduous Andrabi (A-17)  Abdul Rashid Sheikh @ Er. Rashid @ Sheikf Rashid (A-18)

8. The gist of allegations against the Appellant, as per the Prosecution, is that he has played a substantial role in facilitating a separatist/militant movement in the J&K by inciting and instigating the general public to chant slogans in support of the secession of the J&K, paying tribute to the family of slain terrorists/militants by eulogizing them as „martyrs‟, receiving money through hawala transactions and raising funds through the LoC trade, which were allegedly used to fuel subversive and militant activities in the J&K. 9. The Prosecution has alleged that the Appellant is the head of the JKDFP, a constituent of the APHC. During the course of further investigation, the NIA searched the Appellant‟s residence on

26.02.2019 and allegedly recovered incriminating materials, including Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 documents and electronic devices. 10. As per the Prosecution‟s case, the Appellant had earlier joined the People‟s League, a secessionist organization promoting the merger of the State of J&K with Pakistan. The said League allegedly founded its own militant outfit, vis-a-vis the Muslim Janbaz Force, which launched militant attacks on the Security Forces. Many of its members later joined the APHC, headed by Moulvi Umar Farooq. 11. The Appellant was initially arrested in 1989 in Ramban, District Doda, while allegedly attempting to cross over to Pakistan. Upon being released on Bail in 1994, he joined the APHC on the proposal of SAS Geelani and Abdul Gani Lone. In 1996, he left the APHC and formed his own organization under the name JKDFP, and became its Chairman on 24.05.1998. 12. The Prosecution has further alleged that the Appellant‟s organization has been one of the frontline secessionist entities, vigorously pursuing the secession of the J&K from the Union of India. Since the formation of the JKDFP, the Appellant allegedly became the mouthpiece of Pakistan‟s ISI, which had been handling him through a Pakistan based representative, namely, Mehmood Ahmed Sagar. 13. Further, it is alleged that from the Compact Disk (CD) recovered from the Appellant‟s residence, it was revealed that the Appellant had made inflammatory speeches at Kishtwar, Bhadarwa, Anantnag, Kargil, Poonch, etc, instigating the general public to chant slogans in furtherance of secessionist activities in the J&K and thus, created a surcharged atmosphere against the Government of India. Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023

14. Investigations have also allegedly revealed that the Appellant was in contact with Pakistan based militant leaders, including Syed Salahuddin, Hafiz Mohd. Saeed and Iftikar Haidar Rana. The Appellant is also alleged to have been supported by Pakistani Agencies through Hurriyat representatives Shafi Shair and Mehmood Sagar, both based in Pakistan. 15. The Prosecution has also alleged the Enforcement Directorate (ED) had filed a complaint against the Appellant under the Prevention of Money Laundering Act, 2002 (PMLA) case bearing ECIR No. 04/DZ/2007, based on the FIR No. 122/2005 registered under Sections 121, 121A, 122, 123, and 120B of IPC, and Sections 4 and 5 of the Explosive Substances Act, 1883 read with Section 25 of the Arms Act, 1959 by the Special Cell, Delhi Police („Predicate FIR‟), wherein it was alleged that one Aslam Wani, an associate of the Appellant and a cash mule for the terrorist organization Jaish-e- Mohammad, collected hawala funds in Delhi and handed them over to the Appellant for carrying out subversive and anti-national activities. The said Aslam Wani was arrested on 26.08.2005 with Rs. 63 lakhs received through hawala channels, along with explosives, arms, and ammunition by the Delhi Police. The said PMLA case is stated to be currently pending trial. 16. According to the Prosecution, during the investigations, the NIA had recovered the Appellant‟s email ID, and scrutiny of the downloaded emails therefrom, revealed that he had received an email from Shaifi Shair, who disclosed therein about the monies distributed Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 in the U.S. Dollars and Indian Rupees among various accused persons, including the Appellant. It is further the case of the Prosecution that the emails found in the inbox of the Appellant contained the pictures of slain militants along with an attachment titled “Confidential Army report on Lashkar-e-Toiba Apr 2014”, wherein the sender claimed that the militant who was killed, was an associate with LeT and he hailed from Sindh, Pakistan. The sender had also warned the Appellant to remain alert in future. Additionally, in the year 2016, the Government of Pakistan sent an amount of Rs. 1.10 Crore to the Appellant for distribution amongst the individuals who were injured while pelting stones at the Security Forces in the J&K. 17. The investigations also allegedly revealed that, on 29.04.2015, the Appellant had received a sum of Rs. 10 Lakhs from the hawala conduit, the accused no. 10, Zahoor Ahmad Shah Watali, and that the Appellant was involved in the smuggling of illegal weapons, drugs, and counterfeit currency through the LoC trade to further the secessionist activities. 18. Upon appreciating the arguments advanced by the parties, the learned Trial Court, vide Order dated 16.03.2022, framed the Charges, against the Appellant under Sections 120B, 121, and 121A of the IPC read with Sections 13 and 15, of the UA(P) Act, both read with Section 120B of the IPC; and Sections 17, 18 & 20 of the UA(P) Act, along with other accused persons. 19. The Appellant, thereafter, preferred a Bail Application under Section 437 of the Code of Criminal Procedure, 1973, which came to Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 be dismissed by the learned Trial Court vide Order dated 07.07.2023. Aggrieved thereby, the Appellant has preferred the present Appeal before this Court. SUBMISSIONS ON BEHALF OF THE APPELLANT: 20. Mr. Colin Gonsalves, the learned Senior Counsel for the Appellant, at the outset submitted that neither the name of the Appellant nor the name of the Appellant‟s organization finds any mention in the main Chargesheet or the first Supplementary Chargesheet, wherein the primary allegations and interlinkages relating to the alleged Conspiracy between several accused persons are outlined. He submitted that it is only for the first time in the Second Supplementary Chargesheet that the name of the Appellant appears, and he has been arrayed as an accused by the Prosecution. 21. The learned Senior Counsel submitted that the videos recovered by the Prosecution to implicate the Appellant in the present NIA case, belong to the year 1996 and prior, the most recent being over 25 years old. He submitted that the same videos have been used by the Prosecution in as many as 24 FIRs against the Appellant, to keep him incarcerated for a prolonged period, based on the same allegations of delivering „inflammatory speeches‟ and inciting violence in the J&K, thereby creating a „surcharged atmosphere‟. 22. Moreover, it was submitted that the Prosecution has not been able to show any specific incident involving a criminal act that can be attributed to the Appellant, either in the earlier FIRs or in the present one, let alone any terrorist act and therefore, till date there has been no Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 conviction in any of the said FIRs, while the Appellant continues to languish in judicial custody. 23. Mr. Gonsalves further submitted that rather, what can be seen from the videos presented by the Prosecution into evidence, is that the Appellant partakes in a peaceful gathering speaking about the grief of the mothers who have lost their young children and the suffering of the people of Kashmir without any instigation to undertake any criminal activity as wrongly alleged by the Prosecution. In these videos, he contended, the Appellant has also emphasised the teachings of Islam, including the duty to aid both victims and even enemies. He argued that no overt act, by any stretch, has been made out against the Appellant these speeches/gatherings, which are otherwise innocuous in nature. 24. He submitted, while further pointing towards these videos, that they have been recorded from a distance, and the identity of the Speaker cannot be made out. Furthermore, the Scrutiny report (AD- 116), which pertains to articles allegedly seized from the house of the Appellant, does not even specify the source, date, or time of the creation of these videos. 25. The learned Senior Counsel further drew our attention to the Videos seized vide Seizure Memo, that is, AD-11, and submitted that these videos depict processions, protests, chanting of slogans, and making of inflammatory speeches. However, none of these videos are accompanied by a Certificate under 65B of the Indian Evidence Act, 1872 (IE Act). Therefore, the Prosecution has failed to establish the Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 primary source of the contents of these videos and in the absence of the said Certification, they are not admissible into evidence. Nevertheless, he submitted that these do not seem genuine but appear to be fabricated in order to falsely array the Appellant as an accused in the alleged Conspiracy. 26. The learned Senior Counsel submitted that for argument‟s sake, even if these videos are taken to be authentic, in the absence of any terrorist act being attributed to the Appellant, the videos alone cannot form the basis for Prosecution under the UA(P)A against the Appellant. 27. He further submitted that the learned Trial Court grossly erred in not appreciating that the Appellant is neither a member of the APHC nor is his party JKDFP, one of the constituents of it and his party does not even reflect in the list of constituents of APHC produced by the Prosecution. In fact, in 1996, the Appellant had left the APHC and Hurriyat Leaders, to form his own separate organization, that is, JKDFP in 1998 and became its Chairman. He further submitted that the Appellant‟s organization was declared an unlawful association only sometime in April, 2023, which is several years later from the date of his arrest in the present case. 28. He submitted that the Appellant is a reputed political leader who, in his pursuit of a peaceful resolution to the Kashmir issue, has met certain prominent Indian political leaders. He was also invited to a round table conference in Delhi with the erstwhile Prime Minister to address the Kashmir issue. He submitted that there are also certain Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 photographs in this regard and these facts, thus, water down the Prosecution‟s version that the Appellant‟s aim is to incite violence through his speeches, whereas his aforementioned conduct speaks otherwise. 29. Furthermore, he submitted, from the statement of Protected Witness AW-62 (John), on which the Prosecution heavily relies on, no specific allegation can be made out against the Appellant and it is devoid of any particular details as to when, where and what was discussed in the meetings that the Appellant is alleged to have attended, or as to any particular incident of stone pelting which was instigated by him. Neither any details of the money allegedly received by the Appellant, as to by whom or how this money was received by him nor its trail has been stated by this witness. 30. He submitted that as far as the statement of the other Protected Witness AW-81, Aslam Wani, and the allegation of terror funding are concerned, nothing is forthcoming from the same as there are again no details of the alleged transfer of money. He submitted that an alleged transaction from 19 years ago cannot be made a basis to implicate someone in a penal statute, let alone under a Special Legislation, such as the UA(P) Act. Further, this witness is alleged to have collected cash on behalf of the Appellant from a person claiming that he was from Pakistan. However, the Appellant was in Jail at that time and Aslam Wani had been acquitted on the Charge of carrying Rs. 62 lakhs, received by the Appellant, in the predicate FIR and his acquittal has been upheld by this Court vide Judgement dated 31.10.2017. He Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 submitted that the allegations in the statement of AW-81 prove no link between the Appellant and the alleged hawala transfer ever being made to the Appellant, since there had been no recovery from either of them. Furthermore, he submitted that the Appellant is on Bail in the PMLA case. 31. Adverting to the loose sheet of paper, that is D132(a)/23, the learned Senior Counsel submitted that it is an unsigned statement attributed to Ghulam Mohammad Bhatt, an accountant of co-accused Zahoor Ahmad Shah Watali. It contains a single entry of Rs. 10,00,000 allegedly relating to a transaction with the Appellant on

29.04.2015. However, on the date of the said entry, the Appellant was again in Jail, and has been from 2011 to 2017. The alleged transaction has nothing to do with the Appellant and in the absence of any details as to the trail of the said transaction, as to its source, and other relevant particulars, it only makes for a weak evidence. Furthermore, this witness does not name the Appellant, which is the most relevant factor in favour of the Appellant. 32. So far as the evidence of AW-69 is concerned, the learned Senior Counsel contended that this witness mentions an alleged loan given to Fayaz Ahmed Kuloo, an initial loan of Rs. 5 lakhs from Nayeem Ahmad Khan, at the time when the Appellant was incarcerated and following the Appellant‟s release, the subsequent loans taken were allegedly asked to be returned to him, amounting to Rs. 28 lakhs. He submitted that the testimony of this witness is riddled with ambiguity, with no details of the transactions, as to what they Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 were for, when they were made, and the place where the alleged handing over the cash took place. Moreover, this witness states that the alleged meeting took place in 2016, however, he does not mention the Appellant or his alleged role in the said meeting, therefore, nothing substantial comes out of it. 33. The learned Senior Counsel further submitted Prosecution is also relying upon this witness, that is, AW-69 as he allegedly stated that the Appellant had received funds from Pakistan, however, this claim is completely unsubstantiated by the Prosecution, there is no monetary trial to corroborate the same and neither the Prosecution has placed on record any supporting material thereto. 34. He submitted that the statement of AW-67 is innocuous, inasmuch as it contains no specific detail and merely refers vaguely to a sum of Rs. 20-25 lakhs being borrowed from the Appellant in 1993. However, the Appellant was in Jail since 1989 and was released only in 1994, therefore, his testimony is impeached on this ground alone. He further submitted that an email from one Shafi Shair is also relied upon by the Prosecution to arraign the Appellant in the Conspiracy, however, the same fails to bring out any particular details as to transactions and in the absence of any information as to the source of the email, it cannot be relied upon. 35. He submitted that even the statement of AW-79, Razak, is not helpful to the Prosecution, as it pertains to a hotel deal in which the Appellant had relinquished his 25% share. He pointed out that this matter is already the subject of proceedings before the ED. This Signature Not Verified Digitally Signed By:SHALINI UNIYAL BHATT Signing Date:12.06.2025 15:05:20 CRL.A. 600/2023 witness also alleged that his daughter was admitted to an MBBS course in a medical College in Pakistan on the recommendation of the Appellant, however, it was argued that this is a weak attempt to link the Appellant to the Pakistani establishment. Moreover, there is no documentary evidence to support this claim. 36. Mr. Gonsalves submitted that the Appellant is 74 years old and has been arrayed as an accused in 24 FIRs, but has never been convicted for a single offence. He has been in custody since 1991 and, intermittently, for a total of 36 years till date. The Prosecution has cited approximately 400 witnesses, of whom only 20-21 witnesses have been examined till date. Considering the absence of any specific allegations in the present case and the long period of incarceration of five years undergone by the Appellant, the learned Senior Counsel prayed that he deserves to be enlarged on Bail. He submitted that the Appellant‟s right to life and personal liberty, enshrined under Article 21 of the Constitution of India, should be protected, subject to any conditions imposed upon him as deemed appropriate by this Court. 37. The learned Senior Counsel, in support of his contentions, has relied upon the following decisions:  Vernon v. State of Maharashtra & Anr., (2023) 15 SCC 56.  Dr. Anand Teltumbde v. National Investigation Agency, 2022 SCC OnLine Bom 5174.