New Delhi, The Delhi High Court on Wednesday reserved order on the bail plea of Kashmiri separatist leader Shabir Ahmad Shah, who has been in judicial custody in a terror funding case lodged by the National Investigation Agency (NIA) in 2017.
He had moved to the High Court against an order of the special NIA court refusing bail to him.
Division bench of Justices Navin Chawla and Shalinder Kaur reserved an order after taking the list of cases against Shabir Ahmad Shah on record.
It was submitted that there were 24 cases against him, in which he has been charged in 18 cases, three cases have been dismissed, and three cases have pending investigation.
Senior advocate Colin Gonsalves appeared for the petitioner Shah. He moved the High Court in 2023. The trial court dismissed his earlier bail plea on July 7, 2023.
Earlier in 2023, a notice was issued to NIA. The counsel for the petitioner has submitted that it is a fresh bail application. He has been in custody since 2017. The charge sheet has been filed against the petitioner.
It was submitted that the trial court judge had erroneously declined to grant bail to the appellant herein by observing that in view of the bar under Section 43D(5) of UAPA and there being a prima facie case established at the point of framing charges, the appellant could not be granted bail.
It is also submitted that the trial Court ignored the complete lack of material against the appellant, the prolonged period of custody undergone, and that no criminality with respect to the commission of the offence is assigned to the appellant. There is not a single criminal act that can be attributed to the appellant.
It was also submitted that the Appellant is a reputed political leader in Kashmir, having founded the Jammu and Kashmir Democratic Freedom Party in 1998 with the objectives of seeking cooperation of people from within and outside the state, to inculcate brotherhood, friendship and goodwill, cultivate religious tolerance, regional and ethnic cooperation and interaction.
The plea stated that the Appellant finds no mention in the main chargesheet and the first supplementary chargesheet where all the allegations aforementioned have been stated and the NIA has shown the offences that have allegedly occurred as a result of the said conspiracy.
The Investigation agency has in fact gone on to show the interlinkage between the accused persons charge sheeted where again the appellant finds no mention, the plea said.
The FIR that was registered owing to the alleged conspiracy and the investigation showing the execution of the conspiracy in the main chargesheet by the accused persons admittedly does not find mention of accused Shabir Shah or his connivance in such conspiracy or any interlinkage insofar as the conspiracy or execution of the conspiracy is concerned.
It is also submitted that the Appellant has only been included in the second supplementary chargesheet and was arrested in pursuance of the same on 04.06.2019. However, the Appellant has been in custody since 26.07.2017 in a PMLA case.
The plea has stated that the Appellant has been incarcerated for over four years in the present FIR and intermittently for 35 years in different prisons in Kashmir and the country, apart from being under house arrest for a substantial period, without a single conviction or charge against him.
On May 30, 2017, NIA registered a case against 12 accused persons for alleged conspiracy to raise and collect funds for causing disruption by way of pelting stones, damaging public property, and thereby conspiring to wage war against the government of India.
On 04.06.2019 Appellant was arrested. On 04.10.2019 Second Supplementary chargesheet was filed and appellant was arrayed as accused along with others.
The allegations against the appellant included him playing a key role in building a separatist/militant movement in Jammu and Kashmir, inciting and instigating masses to shout slogans for secession of Jammu and Kashmir, paying tribute to family of slain terrorists, receiving money through hawala transactions, and raising funds through LoC trade which were used to fuel subversive and militantactivities in Jammu and Kashmir.
It is alleged that on 26.02.2019, his house was searched and a lot of incriminating material, including documents and electronic items, was seized from his house. Since the formation of JKDFP, accused Shabir Ahmad became the mouthpiece of Pak ISI, which had been handling him through his Pak/POK-based representative Mehmood Ahmed Sagar.
It is further alleged that the scrutiny of CDs recovered from his house has revealed numerous wherein accused Shabir Shah instances had made inflammatory speeches at several locations such as Kishtwar, Bhadarwa, Anantnag, Kargil, Poonch etc instigating the masses to shout slogans for secession of Jammu and Kashmir from the Union of India and created surcharged atmosphere against Government of India that people started pelting stones on the security forces.
Investigation has also revealed that the accused Shabir Shah was in touch with Pak/POK-based militant leadership, including Syed Salahuddin, Hafiz Mohd. Saeed and Iftikar Haidar Rana, the trial court had noted in the order of July 7, 2023.
It is further alleged that the accused Shabir Shah was duly supported by Pakistani agencies through the Hurriyat representatives, such as Shafi Shair and Mehmood Sagar, based in Pakistan.
