Asked what tied the incriminating chats to the appellant, the prosecutor said it would be proved later. Delhi High Court grants bail after five years

Justices Navin Chawla and Arun Bhardwaj release a man accused of funding a separatist organisation, with 42 of 161 witnesses examined and a protected witness's account resting on hearsay.

A man held since August 2021 on an allegation of funding a separatist organisation has been granted bail by the Delhi High Court, which found that the prosecution could not presently point to any positive evidence linking him to the chats at the centre of its case. Justices Navin Chawla and Arun Bhardwaj noted that only the forty-second of 161 cited witnesses was being examined after five years in custody, that the co-accused with whom those chats were allegedly exchanged is already out on bail, and that the account of a protected witness rested on what another accused had told him. The order of the Special Court refusing bail was set aside.

The case and the appellant's place in it

The appeal was filed under Section 21(4) of the National Investigation Agency Act, 2008 against an order of 29 May 2024 by the Additional Sessions Judge-03, Special Court (NIA), New Delhi, in a case registered in December 2018 and titled National Investigation Agency v. Mufti Sohail & Ors. The appellant is arrayed as accused No. 18 and was not named in the first information report. He was arrested on 31 August 2021, is 34, and has no criminal antecedents.

This is the same investigation in which the High Court has been hearing bail appeals from several of the accused, and the allegations here are of a different character from the arms-procurement allegations against some of the others. The case against the appellant is that he funded the separatist organisation Harkat-ul-Harb-e-Islam.

The prosecution's material against him has four strands, as the judgment sets them out. There are chats alleged to have been exchanged between accused No. 5 and the appellant, together with other material said to have been recovered from the appellant's chats. There is the alleged disclosure statement of accused No. 6, and the recovery of Rs 30,000 on that accused's voluntary disclosure. There is the statement of a prosecution witness examined as PW-36, originally cited in the charge-sheet as PW-18. And there is the statement of Protected Witness 'D', examined as PW-37, with a further witness cited in the charge-sheet yet to be examined.

What the Court asked the prosecutor

The appellant's answer to the chats was that there was no evidence they had been exchanged with him at all — nothing on record connecting the device at the other end of accused No. 5's messages to him. His further submission was that even taken at face value the chats contained no incriminating material justifying prolonged incarceration.

The Bench put the question directly. To a pointed query whether there was any evidence to show that the number with which accused No. 5 was exchanging the chats belonged to the appellant, the Special Public Prosecutor stated that this would be proved from the statements of the witnesses and from the material against accused No. 5.

That answer is what the finding rests on. Presently, the Bench recorded, it did not see any positive evidence of the incriminating chats having originated from the appellant or being addressed to him — adding, as it had to, that this is a matter on which a conclusion can be reached only once the prosecution has led its entire evidence.

The point has practical force because accused No. 5, the person at the identified end of those chats, has himself already been granted bail by the same Court.

The witnesses, and what the Bench would not say about them

On the funding allegation itself, the Court examined the statements of PW-36 and of Protected Witness 'D', both of whom stand examined before the Special Court, and also the statement under Section 161 of the Code of Criminal Procedure of the witness cited in the charge-sheet who is yet to be examined.

Having done so, the judgment declines to set out what it found. The Bench stated that it was not giving a complete account of those statements because doing so might influence the Special Court in the trial. Its conclusion is expressed in a single sentence: having perused the statements, it did not find this to be a case in which the appellant should be directed to remain in custody while the trial is not likely to end any time soon.

The appellant's criticisms of that evidence are recorded. On PW-36, counsel pointed to discrepancies in the statement made before the Court which, he submitted, showed the witness to be unreliable. On the protected witness, the submission was that the account was hearsay — accused No. 6 had told him that a person named 'Shahzad' used to send money for the purpose of jihad — and that there was no identification of the appellant as the 'Shahzad' of the village referred to in that statement. On the disclosure of accused No. 6 and the recovery from him, the submission was the familiar one that the statement of a co-accused does not justify keeping another accused in custody.

Four strands, each with a gap

Taken together, the appellant's answers to the prosecution material share a shape: each strand of the case points at someone else and then has to be carried across to him.

The chats are between accused No. 5 and an unidentified second device. The disclosure and the cash recovery are accused No. 6's. The protected witness heard about a man who sent money for jihad from accused No. 6, not from his own knowledge, and the name he repeated is not shown to be this appellant. The remaining witness cited on the point has not been examined at all.

None of that means the prosecution will fail; it means the connecting link is a matter for evidence. The Bench said as much twice over — that a conclusion on the chats can be reached only when the entire evidence is led, and that its observations were for the purpose of bail alone. What it would not do is keep a man in custody for a sixth year while the link remained to be established, when the trial had reached its forty-second witness of 161.

Five years, and forty-two of 161

The arithmetic did much of the work. The appellant has been in custody since 31 August 2021 — more than five years. The trial is not likely to end any time soon, with only the statement of PW-42 being recorded out of a total of 161 witnesses cited by the prosecution. Counsel submitted, and the judgment does not dispute, that no part of the delay was attributable to the appellant.

The Bench recorded that some of the co-accused have already been granted bail by it, including accused No. 5.

On the law, the Court was guided by Gulfisha Fatima v. State (Govt. of NCT of Delhi) as explained by the later judgments in Syed Iftikhar Andrabi v. National Investigation Agency, Jammu and Tasleem Ahmed v. State Govt. of NCT of Delhi, all of which it had already taken note of in its earlier Division Bench judgment in Khuram Parvez v. National Investigation Agency. The passage it quoted is the foundation of this line: that in Union of India v. K.A. Najeeb the Supreme Court held that statutory restrictions such as Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 do not oust the ability of constitutional courts to grant bail for violation of Part III of the Constitution; that while at the commencement of proceedings courts are expected to appreciate the legislative policy against bail, the rigours of such provisions will melt down where there is no likelihood of the trial concluding within a reasonable time and the custody already undergone has exceeded a substantial part of the prescribed sentence; and that Section 43D(5) is comparatively less stringent than Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, because it carries no requirement that the court be satisfied the accused is prima facie not guilty.

Order

Holding that the order of the Special Court could not be sustained, the Bench set it aside and directed the appellant's release on bail on conditions.

He is to execute a personal bond of Rs 50,000 with two sureties in the like amount to the satisfaction of the Special Court, surrender his passport or file an affidavit that he holds none, and not leave the country without permission, any travel application disclosing destination, duration, purpose and contact details. He is not to leave his native District Hapur except to travel to Delhi for the trial or to report at the NIA office as part of his bail conditions. He may use only one mobile or landline number during the trial, which must always be kept switched on, and must furnish his residential address, telephone number and email to the investigating officer and the Special Court, with at least seven days' prior intimation of any change.

He must appear before the Special Court on each date of hearing unless exempted. The Court made clear that its observations were made only for the purpose of considering bail, and directed that a copy of the judgment be sent to the Special Court and to the concerned Jail Superintendent for information and compliance.

With this order the High Court has now released several of the accused in the same investigation on the same broad footing — prolonged custody set against a trial with no end in sight — while being careful each time to decide nothing about the strength of the case. The trial continues against all of them.