SC Sets Aside Bail Granted To J&K Businessman In Terror Funding Case [Read Judgment]

Allowing the appeal filed by the National Investigating Agency, the bench comprising Justice AM Khanwilkar and Justice Ajay Rastogi observed that the Designated NIA Court had rightly rejected the bail application after adverting to the relevant material/evidence indicative of the fact that there are reasonable grounds for believing that the accusation against the respondent is prima facie true.

The allegations against Watali, a septuagenarian, is that he had acted as a conduit for transfer of funds received from terrorist Hafiz Muhammad Saeed, ISI, Pakistan High Commission, New Delhi and also from a source in Dubai, to Hurriyat leaders/secessionists/terrorists; and had helped them in waging war against the Government of India by repeated attacks on security forces and Government establishments and by damaging public property including by burning schools etc.

He was charged for offences punishable under Sections 120B, 121 and 121A of the Indian Penal Code and Sections 13,16,17,18,20,38,39 and 40 of the Unlawful Activities (Prevention) Act, 1967.

While setting aside the High Court order, the bench observed that the High Court has ventured into an area of examining the merits and demerits of the evidence. 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, the bench said. Taking note of the material record in the case, the bench observed:

"In our opinion, taking into account the totality of the report made under Section 173 of the Code and the accompanying documents and the evidence/material already presented to the Court, including the redacted statements of the protected witnesses recorded under Section 164 of the Code, there are reasonable grounds to believe that the accusations made against the respondent are prima facie true. Be it noted, further investigation is in progress."

While setting aside the High Court order, the bench further observed:

"The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true."

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