Zamin Adil Bhat vs National Investigation Agency

Navin Chawla, J

The present criminal appeals have been filed by the appellant(s) under  Section  21(4)  of the National Investigation Agency  Act,  2008 (hereinafter referred to as the ‘NIA Act’) read with Section 43-D(5) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as  the  ‘UAPA’),  assailing  the  Order  dated  03.03.2023  passed  by  the learned Additional Sessions Judge-03, Special Court (NIA), New Delhi  District,  Patiala  House  Courts,  New  Delhi  (hereinafter  referred to  as  the  ‘Trial  Court’)  in  SC  Case  No.  02/2022,  titled  NIA  v.  Tariq Ahmed Dar &  Ors., whereby the learned Trial Court rejected the bail application(s) filed by the appellant(s) herein.

The appellant(s) before this Court are Zamin Adil Bhat (Accused No. 14 before the learned Trial Court) in CRL.A. 408/2023, and Haris Nisar Langoo (Accused No. 15 before the learned Trial Court) in CRL.A. 406/2023.

Before this Court, certain submissions have been advanced which are common to both the appeals, particularly on the issue of prolonged incarceration and the plea founded on Article 21 of the Constitution of India. At the same time, each appeal also raises issues specific to the concerned appellant; turning on the role attributed to such appellant; the prosecution material relied upon; and, the findings recorded by the learned  Trial  Court. The present  judgment, therefore, first notices the broad factual background of the case and the prosecution narrative as emerging from the FIR and the charge sheets filed pursuant thereto.

CASE OF THE PROSECUTION:

The case of the prosecution is that reliable information was received by the Central Government regarding the hatching of a conspiracy, both in the physical realm and in cyberspace, to carry out violent  terrorist acts  in  Jammu &  Kashmir (J&K) and  other  parts of India, including New Delhi.  It is alleged that the said conspiracy was orchestrated by hybrid cadres/sleeper cells of various proscribed terrorist organisations, such as, Lashkar-e-Taiba (LeT), Jaish-e- Mohammad (JeM), Hizb-ul-Mujahideen (HM), Al-Badr, and other similar outfits, operating through their affiliated front organisations, including The Resistance Front (TRF), People Against Fascist Forces (PAFF), Muslim Janbaaz Force (MJF), and Mujahideen Ghazwatul Hind (MGH).

On the basis of the aforementioned intelligence inputs, the Ministry of Home Affairs, Government of India, issued Order No. 11011/65/2021/NIA dated 10.10.2021, directing the National Investigation Agency (NIA) to take over the investigation. Pursuant thereto, FIR bearing No. RC-29/2021/NIA/DLI (hereinafter referred to as  the’FIR’)came  to  be  registered  at  Police  Station  NIA,  Delhi,  on 10.10.2021,  under  Sections 120B,  121A,  122,  and  123  of  the  Indian Penal  Code,  1860  (hereinafter  referred  to  as  the’IPC’),and  Sections 18, 18-A, 18-B, 20, 38, and 39 of the UAPA.

The FIR, as per the record, apart from naming various individual accused persons, also narrates a broad conspiracy allegedly involving Pakistan-based handlers, the Pakistan ISI (intelligence agency), their local operatives, and networks of Over-Ground Workers (OGWs) engaged in radicalisation, recruitment, logistical support, and propaganda activities in furtherance of terrorist objectives.

Upon registration of the FIR, an investigation team was constituted by the NIA, which commenced an inquiry into digital footprints,  call  detail  records,  social  media  activity,  and  ground-level networks allegedly connected with the said conspiracy, as reflected in the charge sheet and the supplementary charge sheets.

During the  course of the investigation,  searches  and  raids  were conducted at multiple locations in Jammu and Kashmir, leading to the detention and subsequent arrest of several suspects, including the present appellant(s), between 21.10.2021 and 22.10.2021, as recorded in the arrest and remand documents.

Upon completion of a substantial investigation, the NIA filed its first  charge  sheet  on  08.04.2022  against  twenty-six accused  persons, including  the  present  appellant(s).  Two  accused,  namely,  the  accused no. 1, Bashir Ahmed Pir @ Imtiyaz Alam, and the accused no. 2, Imtiyaz Kundoo @ Fayaz Sopore, were shown as absconding.

After the filing of the first charge sheet, further investigation continued,  culminating  in  the  filing  of  a  supplementary  charge  sheet on 20.03.2023, wherein additional material was placed on record. However, no distinct or new role was attributed to the appellant(s) beyond what had already been alleged in the original charge sheet.

In  the  charge  sheet,  it  is  alleged  that  the  investigation  revealed that  the  larger  conspiracy  was  masterminded  by the  senior  leadership of various terrorist organisations operating from Pakistan. The conspiracy was allegedly conceived after the revocation of Article 370 of  the  Constitution  of  India,  with  the  objective  of  re-igniting  terrorist activities  in  Jammu  &  Kashmir  as  well  as  in  other  parts  of  India. In furtherance of this objective, a central coordinating body known as the “United Jihad Council” (UJC) was allegedly established in collaboration with other proscribed terrorist organisations. It is further alleged  that  the  entire  operation  was  orchestrated  under  the  guidance and support of Pakistan’s Intelligence Agency, namely, the Inter- Services Intelligence (ISI). The investigation is stated to have revealed the formation of various “coordination groups” as an integral component of the conspiracy, which were tasked with planning and strategising terrorist operations in the Kashmir Valley.

It is alleged that the aforesaid terrorist organisations, in collaboration  with  their  facilitators  and  leadership  based  in  Pakistan, and along with their OGWs operating within India, were actively engaged in influencing and radicalising vulnerable local youth. The object  of  such  activities  was  to  recruit  and  train  these  individuals  for participation in terrorist acts, including imparting training in the handling of weapons, ammunition, and explosive substances.

The  investigation,  as  per  the  charge  sheet,  further  revealed  the alleged existence of newly floated frontal organisations purportedly created to mask the activities  of banned terrorist outfits and to recruit local youth as OGWs and “hybrid cadres”. It is further alleged that these coordination groups and hybrid cadres comprised individuals who were ostensibly engaged in lawful activities but, in reality, functioned as OGWs, facilitating and executing small-scale terrorist acts, including targeting civilians and security personnel. These hybrid cadres were allegedly groomed to carry out low-intensity attacks, including targeted killings of minorities, political workers, and security personnel, with the object of spreading fear, unrest, and terror in the  Kashmir  Valley and  elsewhere,  particularly in  the  aftermath of the revocation of Article 370 of the Constitution of India.

As per  the  prosecution  case,  the modus  operandi  involved the extensive use of encrypted communication platforms, social media channels,  online  propaganda  groups,  and  digital  content  to  radicalise impressionable youth and to glorify terrorist ideology, fallen militants, and the concept of violent jihad.

It is alleged that Pakistan-based handlers issued directions through cyberspace to local operatives and OGWs for the dissemination of propaganda material, identification of potential recruits, and logistical facilitation of terrorist activities.

The prosecution alleges that the appellant(s) were not mere passive  associates  but  were  active  participants  in  both  the  online  and offline propaganda machinery of the alleged terrorist conspiracy.

SPECIFIC ALLEGATIONS AGAINST THE APPELLANT NAMELY ZAMIN ADIL BHAT (THE ACCUSED NO. 14):

Insofar as the appellant/accused no. 14 is concerned, the prosecution alleges that he was a highly radicalised individual who actively  propagated  videos,  images,  and  audio  material  related  to  the Islamic State (IS) and Islamic State Jammu and Kashmir (ISJK) among his contacts in order to motivate and radicalize them to join Jihad  for  the  cause  of  Kashmir.  He  used  to  don  the  badge  of  Islamic State. He also was in contact with several followers of ISJK and used to receive images with regard to establishment of Wilayat-Al-Hind. He along with Accused No. 15/Haris Nisar Langoo used to attend classes of one Bashir Moulvi @ Bashir Chouhan, who used to deliver radicalizing lectures. He was also a member of several online propaganda groups run by Pakistan based handlers of proscribed terrorist organisation on directions of Accused Nos. 1 and 2, that is Bashir Ahmed Pir @ Imtiyaz Alam and Imityaz Kundoo @ Fayaz Sopore respectively.

According to  the prosecution,  the appellant also functioned as an OGW  and  hybrid  cadre for  the frontal  organisation of  proscribed terrorist organization–TRF, extending logistical and ideological support to active militants. It is alleged that several incriminating images in the form of threat posters, clicked images of pasted posters and audios/videos venerating fallen terrorists have been recovered from the digital devices seized from the possession of the Accused Nos. 14 and 15.

SPECIFIC ALLEGATIONS AGAINST THE APPELLANT NAMELY HARIS NISAR LANGOO (THE ACCUSED NO. 15):

With respect to the appellant/accused no. 15, the prosecution alleges that he was closely associated with the other appellant, namely Zamin  Adil  Bhat,  and  other  co-accused,  and  acted  as  a  facilitator  for the dissemination of radical content through digital platforms.

It  is  specifically alleged  that  the  appellant  operated  a YouTube channel titled “No Compromise on Tawheed”, on which lectures of one Bashir Moulvi @ Bashir Chouhan were uploaded after being edited to incorporate Islamic State insignia and symbols. The prosecution asserts that the appellant, in association with the other appellant, namely Zamin Adil Bhat, used these videos to motivate and radicalise local youth towards extremist ideology and violent jihad.

As per the investigation, the appellant was also involved in motivating and radicalising local youth and functioned as a staunch OGW and hybrid cadre for TRF, thereby facilitating terrorist objectives.

The charge sheet records that several incriminating images, threat posters, screenshots of pasted posters, and audio-visual material venerating slain terrorists were recovered from the digital devices seized from the appellant(s).

BAIL APPLICATIONS OF THE APPELLANT(S) BEFORE THE LEARNED TRIAL COURT AND THE ORDER PASSED THEREON:

Applications for regular bail filed by the appellant(s) were considered and  dismissed  by  the  learned  Trial  Court  by Order dated 03.03.2023.

The learned Trial Court, as reflected in the order on record, observed that the case pertains to a serious terrorist conspiracy and that the allegations against the appellant(s), prima facie, attract the embargo contained in Section 43-D(5) of the UAPA.

Aggrieved by the Order dated 03.03.2023 passed by the learned Trial Court rejecting their bail applications, the present appellant(s) have approached this Court by way of the present criminal appeals under Section 21(4) of the NIA, read with Section 43-D(5) of the UAPA.

In the meantime, the learned Trial Court, vide Order dated 30.07.2024, framed charges against the appellant(s) under Sections 120B and 121A of the IPC and Section 18 of the UAPA, while discharging them of offence under Sections 20, 38, 39 and 40 of UAPA.

SUBMISSIONS OF THE LEARNED COUNSELS FOR THE APPELLANT(S):

Mr. Jawahar Raja, the learned counsel appearing for the appellant, namely Mr. Zamin Adil Bhat, and Ms. Tara Narula, the learned counsel appearing  for  the  appellant,  namely  Mr.  Haris  Nisar Langoo, at the outset, jointly submitted that the delay in the trial constitutes a ground for the grant of bail to the respective appellant(s). They submitted that the appellant(s) have been in custody since 21/22.10.2021.  As  per  the  charge  sheets,  the  prosecution  proposes  to examine approximately 359 witnesses, out of whom only 12 have been  examined  thus  far.  At  this  pace,  they  contend,  the  recording  of evidence  alone  is  likely  to  take  more  than  38  years.  The  appellant(s) have already undergone custody for more than four years. They submitted  that  although the prosecution  has  stated  that the number  of witnesses would be curtailed to 200, with 120 witnesses being formal in nature, no formal application to that effect has been filed thus far.

They further submitted that when the bail applications of the appellant(s) were earlier rejected, charges were yet to be framed. It is only by a subsequent Order dated 30.07.2024, that charges have been framed against the appellant(s) under Sections 120B and 121A of the IPC and Section 18 of the UAPA Act. They contend that, from the material placed on record by the prosecution, no offence under any of the aforesaid provisions is made out against the appellant(s).

They further submitted that several co-accused, including accused  no.  13/Mohd.  Manan  Dar  @  Manan,  accused  no.  10/Mateen Ahmed Bhatt, and accused no. 16/Rauf Ahmed Bhatt, have been granted bail, while accused no. 26/Adil Ahmad Ward has been discharged by the learned Trial Court.

They also took us through the statements of the material witnesses, namely, Mr. Shabir (PW-276), Mr. Tanzeel Yousuf Shah (PW-285), and protected witnesses X-8 and X-10. Of these,  witness X-8 has already been examined before the learned Trial Court on 30.04.2025, and has not identified the accused no. 14 as being the person with whom he was in contact. Additionally, with regard to accused No. 15, the learned counsel referred to X-14, PW-309 (Aadil Ayoub Sofi), and PW-310 (Muis Ahmad Mir) to submit that the evidence  relied  upon  by  the  prosecution  fails  to  demonstrate  that  the appellant(s) were either members of a proscribed terrorist organisation or  had  any  intention  to  further  the  activities  of  such  an  organisation. They contended that no overt act has been attributed to the appellant(s),  nor  is there  any  material  on  record  to  suggest  that  they intended to undertake any violent act. They further submit that the appellant(s) have been implicated merely because they were members of certain WhatsApp groups in which objectionable photographs or videos were shared by other members. However, there are no allegations that  the appellant(s) either created such  groups or  shared any objectionable content therein.

It was further submitted that vague allegations have been made describing the appellant(s) as hybrid cadres or ‘lone wolf operators’ who allegedly associated themselves with online propaganda groups floated by various Pakistan-based handlers of proscribed terrorist

organizations at the instance of accused nos. 1 and 2. It is also alleged that the appellant(s)  were followers of one Bashir Moulvi @ Bashir Chouhan, who purportedly delivered radicalizing lectures that were thereafter shared by the appellant(s). However, insofar as the appellant Haris Nisar Langoo (accused no. 15) is concerned, there is no evidence to substantiate this allegation. As regards the appellant Zamin Adil Bhat (accused no. 14), the only material relied upon is the alleged  sharing  of  such  content  with  PW-276,  who,  according  to  the learned  counsel,  appears to have  instigated  the  appellant into sending him a video of Bashir Moulvi @ Bashir Chouhan.

It  was  also  submitted  that  the  prosecution  has  relied  upon  Call Detail  Records  (CDRs)  to  show  that  the  appellant(s)  were  in  contact with an alleged TRF commander, namely, Mohd. Abbas Sheikh, through phone numbers used by accused No. 3, Bilal Ahmad Mir, and his wife. However, the CDRs merely reflect three calls between accused  no.  14  and  accused  no.  3  on  23.06.2021,  lasting  97  seconds, 49 seconds, and 7 seconds, respectively, between 08:25 P.M. and 08:57 P.M., and five calls between  accused no. 15 and accused no. 3, lasting 35, 9, 7, 21, and 23 seconds, respectively. According to the learned counsels, apart from being too brief to discuss or hatch any conspiracy, these calls do not indicate any frequency, pattern, or continuity  suggestive  of  planning for any  unlawful  act. They  further submitted that the appellant(s) were working as delivery boys and may have come into contact with accused no. 3 in connection with such deliveries.

It  was  also  contended  that  the  prosecution  has  relied  upon  the cell location records placing the appellant(s) in the vicinity of accused no. 3, without considering that the appellant(s) are residents of Khanyar,  District  Srinagar,  Jammu  and  Kashmir and,  therefore,  their presence in the said area is natural. In any event, the mere fact that an accused/appellant was located within the coverage area of the same cell tower is insufficient to establish a meeting for the purpose of a terror conspiracy or support to any terrorist organization.

Lastly,  it  was  urged  that  the  mere  framing  of  charges  does  not disentitle an accused from being granted bail, particularly when the conditions stipulated under Section 43D(5) of the UAPA are not attracted.

In support of their respective submissions, the learned counsels for the appellant(s) have placed reliance on the following judgments:-

i. Kalpnath Rai v. State, (1997) 8 SCC 732.

ii. Suresh Bhudharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337.

iii. Shreya Singhal v. Union of India, (2015) 5 SCC 1.

iv. S. Rangarajan v. P. Jagjivan Ram & Ors., (1989) 2 SCC 574.

v. Balwant Singh & Anr. v. State of Punjab, 1995 (3) SCC 214.

vi. Bilal Ahmed Kaloo v. State of A.P.,(1997) 7 SCC 431.

vii. Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000.

viii. Vernon v. State of Maharashtra & Anr., 2023 SCC OnLine SC 885.

ix. Ranjitsingh  Brahmajeetsing  Sharma  v.  State  of  Maharashtra & Anr., (2005) 5 SCC 294.

x. Jalaluddin Khan v. Union of India, 2024 INSC 604.

xi. Gurwinder Singh v. State of Punjab & Anr., 2024 SCC OnLine SC 109.

xii. NIA v. Zahoor Ahmed Shah Watali, (2019) 5 SCC 1.

xiii. Athar Parwez v. Union of India, 2024 INSC 995.

xiv. Yedela Subba Rao & Anr. v. Union of India, (2023) 6 SCC 65.

xv. Hitendra Vishnu Thakur & Ors. v. State of Maharashtra & Ors., (1994) 4 SCC 602.

xvi. State NCT of Delhi v. Navjyot Sandhu, (2005) 11 SCC 600.

xvii. To issue certain guidelines regarding inadequacies and deficiencies in Criminal Trials, In re, 2017 SCC OnLine SC 298.

xviii. To issue certain guidelines regarding inadequacies and deficiencies in Criminal Trials, In re v. State of A.P. Ors., (2021) 10 SCC 598.

xix. P. Ponnuswamy v. State of T.N., 2022 SCC OnLine SC 1543.

xx. State (By NCB) Bangaluru v. Pallulabid Ahmad Arimutta & Anr., (2022) 12 SCC 633.

xxi. Anter Singh v. State of Rajasthan, (2004) 10 SCC 657.

Ms.Tara Narula, the learned counsel appearing for the appellant/Haris Nisar Langoo, further submitted that the appellant is suffering from cervical spondylosis and that his medical condition has deteriorated during the prolonged period of incarceration, causing irreparable harm  to his health. It was contended that on this ground alone, the appellant deserves to be released on bail.

SUBMISSIONS OF THE LEARNED SENIOR COUNSEL/SPP ON BEHALF OF THE RESPONDENT:

On the other hand, Mr. Gautam Narayan, learned Senior Counsel/SPP appearing for the respondents, submitted that the appellant(s) have failed to make out a case for grant of bail by satisfying the conditions stipulated under Section 43D(5) of the UAPA. He submits that the said provision imposes a statutory bar on the  release  of  a  person  accused  of  offences  under  Chapter  IV  and/or Chapter  VI  of  the  UAPA  if,  upon  a perusal  of  the  case  diary and  the charge sheet, there are reasonable grounds for believing that the allegations  against  such  person  are  prima  facie  true.  Placing  reliance on the judgments of the Supreme Court in Zahoor Ahmad Shah Watali (supra); Gurwinder Singh (supra); and, Gulfisha Fatima v. State  (GNCTD), 2026  INSC  2,  he  submitted  that  the  appellant(s)  are not entitled to be released on bail.

He also took us through the material relied upon by the respondent/prosecution in support of its allegation(s) against the respective appellant(s). Insofar as the appellant Zamin Adil Bhat (accused no. 14) is concerned, he specifically relied upon the scrutiny report of the digital devices seized from the said accused, which allegedly contained images referring to India as an “occupier”; material glorifying slain militants associated with TRF, including messages forwarded by accused no. 14; photographs of accused no. 14 wearing a badge of the Islamic State; and several videos of IS fighters recovered from his digital devices. He further relied upon the CDR analysis reports showing calls made by accused no. 14 to accused no. 3 and indicating their close proximity based on cell tower location data. He also referred to the statements of various witnesses, including PW-276,  PW-285,  and  protected  witnesses  X-8  and  X-10,  insofar  as accused no. 14 is concerned.

As  regards  the  appellant  Haris  Nisar  Langoo  (accused  no.  15), the learned Senior Counsel/SPP again drew our attention to the scrutiny report of the digital device seized from him, which, inter alia, allegedly contained a TRF poster threatening supporters of India; images  exhorting  locals  to  take  up  jihad;  images  depicting  the Indian subcontinent as ‘Ghazwa-e-Hind’, a term used by IS; images of IS terrorists; and posters advocating the ideology of IS. He also relied upon  the  CDR  analysis  report  to  show  that  accused  no.  15  had  made five calls to accused no. 3 and was shown to be in close proximity to him based on cell tower location data. Additionally, he placed reliance on the statements of various witnesses earlier referred to by  learned counsel for the appellant(s).

He submitted that charges have already been framed against the appellant(s). He further submitted that, for invoking Section 18 of the UAPA,  it  is  not  necessary  for  the  prosecution  to  establish  the  actual involvement of the appellant(s) in a specific terrorist act under Section 15; even acts such as planning, coordination, or mobilization for a terrorist act are sufficient to attract Section 18. He contended that the judgments  relied  upon  by learned  counsel  for  the  appellant(s)  are  not applicable to the facts of the present case.

ANALYSIS AND FINDINGS:

We have considered the submissions made by the learned counsels for the parties and have perused the record as well as the judgments relied upon by the learned counsels for the parties.

At the outset, we may deal with the common submission urged by Mr. Jawahar Raja and Ms. Tara Narula on behalf of the appellant(s) regarding the delay in trial and the long period of incarceration of the appellants.

At the outset, we would first note that charges have already been framed against the appellant(s) under Sections 120B and 121A of the  IPC  and  Section  18  of  the  UAPA  by the  learned  Trial  Court  vide Order dated 30.07.2024. Presently, the said Order has not been challenged by either party,  with accused no. 15 having withdrawn his challenge on the ground of maintainability. Though Ms. Narula submits  that  the  appellant  is  in  the  process  of  availing  of  his  right  to challenge the above order, we shall proceed to consider the present appeals keeping in view the aforesaid Order passed by the learned Trial Court.

The claim for being released on bail during trial, is to be considered on the anvil of Section 43D of UAPA, which reads as under:

“43D. Modified application of certain provisions of the Code.—

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(5) Notwithstanding  anything  contained  in  the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has  been  given  an  opportunity  of  being  heard on the application for such release:

Provided that such accused person shall not be  released  on  bail  or  on  his  own  bond  if  the Court, on a perusal of the case diary or the report  made  under  section  173  of  the  Code  is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

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Most  recently,  in  Gulfisha  Fatima  (supra),  the  Supreme  Court considered, inter alia,  the statutory  framework  of Section 43D(5) of the UAPA and the scope of judicial inquiry  at the stage of grant of bail, and held as under:

“80. From the foregoing discussion, certain propositions governing the application of Section  43D(5)  emerge  with  clarity.  First,  the provision embodies a deliberate legislative departure from ordinary bail jurisprudence, premised upon the distinctive nature of offences under  Chapters  IV and VI  of the Act. Second, the expression “prima facie true”mandates a threshold judicial inquiry which is neither perfunctory nor adjudicatory, requiring the Court to examine whether the prosecution material, taken at face value, discloses  the  essential  statutory  ingredients  of the alleged offence. Third, the inquiry is necessarily accused- specific, directed to the role and attribution qua the individual, and does not admit of collective or undifferentiated treatment merely because allegations arise from a common transaction or conspiracy. Fourth, the bail stage under Section 43D(5) is not a forum for evaluating defences, weighing evidence,  or  conducting  a  mini-  trial;  judicial restraint at this stage is not an abdication of duty but a fulfilment of the  statutory mandate. These propositions, read together, define the contours of judicial power and responsibility under the provision.

The correct application of Section 43D(5), therefore, requires the Court to undertake a structured inquiry confined to the following:

i. whether the prosecution material, accepted as it stands, discloses a prima facie case satisfying the statutory ingredients of the offence alleged;

ii. whether the role attributed to the accused reflects a real and meaningful nexus  to  the  unlawful  activity  or  terrorist activity proscribed under the Act, as distinguished from mere association or peripheral presence; and

iii. whether the statutory threshold is crossed qua the individual accused, without embarking upon an assessment reserved after full- fledged trial.

Where these requirements are met, the statutory restraint on the grant of bail must operate with full force; where they are not, the embargo stands lifted. This approach preserves the legislative purpose of the Act, and  ensures  that  the  exceptional  nature  of the bail regime under Section 43D(5) is neither diluted by overreach nor distorted by mechanical application.”

The Court, while further analysing Sections 15 and 18 of the UAPA for the consideration of an application under Section 43D(5) of the UAPA, held as under:

“90. Read together, Sections 15 and 18 disclose a legislative design wherein Section 15 defines the nature of acts which Parliament has characterised as terrorist acts, while Section 18 ensures that criminal liability is not confined only to the final execution, but extends to those who contribute to the commission of such acts through planning, coordination, mobilisation, or other forms of concerted action. Whether particular conduct ultimately attracts Section 15 directly, or Section 18 read with Section 15, depends upon the role attributed and the statutory ingredients alleged to be satisfied.

At the stage of consideration under Section 43D(5), the Court is not required to finally classify the conduct or determine the precise provision under which liability would ultimately arise. The inquiry is confined to whether,  on  the  prosecution  material  taken  at face value, there are reasonable grounds for believing that the accused’s conduct bears a prima facie nexus to a terrorist act as  defined under  the  Act,  whether  as  a  direct  participant or as a conspirator or facilitator.”

On the question of delay in trial and its effect on an application filed by  the accused seeking bail, the Supreme Court explained that Article 21 provides not an absolute but a correlated right. All accused are not to be treated identically; their respective roles in the  alleged conspiracy must be considered. It must be examined what role is ascribed to them by the prosecution, how the same fits within the statutory  ingredients,  and  whether  continued  detention  would  serve  a legitimate purpose recognised by law. We quote from the judgment as under:

“101. It is well recognised that Article 21 rights, though not absolute, require the State and the Court to justify continued custody with reference to the specific individual before it. Treating all accused identically irrespective of their roles would risk transforming pre-trial detention into a punitive  mechanism divorced from individual circumstances. The constitutional mandate demands a differentiated inquiry: where prolonged custody disproportionately burdens those whose roles are limited, the balance between individual liberty and collective security may call for conditional release, while the same balance may tilt differently for those alleged to have orchestrated the offence.

The statutory restrictions under special enactments do not preclude the Court from recognising distinctions between accused persons based on the quality of material, the nature of involvement, and the necessity of further detention.

At this stage, the Court must be careful not to confuse two distinct legal exercises. One is the determination of criminal liability, which belongs to trial. The other is the regulation of personal liberty pending trial, which is the limited concern of bail. The law of conspiracy explains how several persons, acting at different levels and at different points of  time,  may  be  bound  together  by  a  common design.  That  doctrine  answers  the  question  of liability. It does not answer, by itself, the separate question of how long and on what basis the liberty of each individual may be restrained before guilt is proved. Bail adjudication therefore necessarily proceeds on a different plane. It requires the Court to look at what is attributed to each accused, how that attribution fits within the statutory ingredients, and whether continued detention, at that stage, serves a legitimate purpose recognised by law. This exercise does not dismantle the prosecution case of conspiracy, nor does it rank culpability. It merely ensures that pre- trial detention does not become indiscriminate or automatic, and that statutory restraint operates with reason, proportion, and fidelity to individual attribution. Seen thus, differentiation is not an exception to conspiracy law, but a constitutional discipline imposed upon the exercise of bail jurisdiction.”

Keeping  in  view  the  above  parameters,  we  shall  now  consider the allegations of the prosecution against the appellant(s) and juxtapose the same with the period of incarceration they have already undergone and are likely to undergo further in case they are not released on bail.

In the present appeals, as would be evident from the charge sheet,  the  order  on  charge,  and  the  submissions  of  the  learned  senior counsel appearing for the respondents, the allegations against the appellant(s) are that they were part of social media groups where anti- national messages propagating terrorism were being shared. However, there is no allegation of the appellant(s) being the creators of these groups or of sharing any objectionable material therein.

There are also allegations that the appellant(s) were OGWs who were  instigating  youth  to  join  terrorism  by  sharing  videos,  including videos of slain IS terrorists, in respect of which statements of various witnesses have been relied upon. The learned counsel for accused no. 14 has also taken us through the WhatsApp messages exchanged between accused no. 14 and PW-276, which would  prima facie show that  it  was  PW-276  who  was  instigating  accused  no.  14  to  share  the videos and images,  a matter  that  shall fall for deeper  consideration at trial.

There is also material indicating that the appellant(s) were in touch with accused no. 3, as reflected in the CDR analysis. However, the calls between accused no. 14 and accused no. 3 were only three in number, lasting 97, 49, and 7 seconds respectively, while accused no. 15 made five calls to accused no. 3, lasting 35, 9, 7, 21, and 23 seconds respectively. The learned counsels for the appellants have urged  that  the  short  duration  of  the  calls  are  insufficient  to  establish any shared criminal purpose or conspiratorial nexus. It has been urged that the appellant(s), being delivery boys by occupation, may plausibly have come in contact with accused no. 3 in connection with such deliveries, and the prosecution has not placed any material on record to conclusively rule out such an innocent explanation. The plea of the learned counsels for the appellants would again have to be tested  in  trial,  however,  for  the  purpose  of  the  present  appeal,  cannot be completely brushed aside as being fanciful or absolutely improbable.

Similarly, the prosecution has relied upon cell tower location data to show the proximity of the appellant(s) to accused no. 3. However, the appellant(s) are residents of Khanyar, District Srinagar, and their presence in the said area is claimed to be natural. In any event, mere presence within the range of the same cell tower is by itself insufficient to establish a meeting for the purpose of a terror conspiracy. The consideration of this evidence along with other pieces of evidence that may unearth in the course of the trial, is a matter to be considered by the learned Trial Court. For the purposes of the present appeal,  suffice  it  is  to  say that  the  appellants,  given  their  long  period of incarceration and the role attributed to them by the prosecution, have been able to meet the test laid down by  the Supreme Court in Gulfisha Fatima (supra) for being released on bail.

As regards the material found on the digital devices of the appellants,  which  may even be propagating  anti-national activities, in our  view,  the  same  may not  justify the  continuation  of  the  prolonged detention  of  the  appellants  at  the  trial  stage.  It  is  not  the  case  of  the prosecution  that  the  appellants  are  the  creators  of  this  content or  had further disseminated this content to others. We are guided by the observations of the Supreme Court in Thwaha Fasal (supra), wherein the  Supreme  Court,  while  dealing  with  UAPA  bail  matters,  held  that sympathy for  a cause,  or  even  the  possession  of  literature  and  digital content associated with a banned organization, does not by itself constitute  membership  of  such  organisation  or  active  participation  in its  terrorist  activities,  absent  a  demonstrated  nexus  to  actual  terrorist acts. The distinction between ideological alignment and operational participation is constitutionally significant, and must be borne in mind while  applying  the  prima  facie  standard  under  Section  43D(5)  of  the UAPA to the specific facts and material attributed to each of the appellant(s). In this regard, we may usefully draw support from the judgment of the Supreme Court in Vernon (supra).

Most significantly, witness X-8, who was one of the key prosecution witnesses relied upon to establish the role of accused no.14 (Zamin Adil Bhat) in radicalising and instigating youth towards terrorism through the sharing of videos and extremist content, upon examination before the learned Trial Court on 30.04.2025, did not identify  accused  no.  14  as  the  person  who  shared  such  material  with him or instigated him.  While this Court is not conducting a mini-trial and the weight of this evidence remains a matter for the learned Trial Court to assess finally, it is nonetheless a relevant factor in the present inquiry, particularly as mandated by Section 43D(5) of the UAPA and as expounded in Gulfisha Fatima (supra).

We must also remain mindful of the fact that though it has been submitted by the learned Senior Counsel for the respondents that, pursuant to certain orders passed by the Supreme Court in  SLP (Crl.) No.  83/2024,  titled Suhail  Ahmad  Thokar  v.  National  Investigation Agency, the list of witnesses to be examined at trial has been curtailed and, therefore, the trial is not likely to take long, in our view, even with the curtailed number of witnesses, the trial is still likely to take a considerable amount of time to conclude. We, therefore, are of the view that taking into consideration the allegations against the appellant(s), their continued detention may amount to a violation of their right under Article 21 of the Constitution of India. The appellant(s) have already undergone prolonged incarceration of around 4 years and 4 months, without any certainty of the trial concluding within a  reasonable  time.  In our considered  opinion,  and keeping in view the role assigned to the appellant(s), the continued detention of the appellant(s)  at this stage would not serve the ends of justice.

Insofar as the health condition of appellant/Haris Nisar Langoo (accused no. 15) is concerned, it has been brought on record that he is suffering from cervical spondylosis, a condition that has reportedly deteriorated during the period of his incarceration. While this Court does not treat medical grounds as independently decisive in cases governed by  Section 43D(5) of the UAPA, the state of health of an undertrial prisoner is nonetheless a relevant consideration in the overall assessment of rights under Article 21 of the Constitution of India.  Prolonged  pre-trial  detention  of  a person  whose  alleged  role  is predominantly digital and non-violent in nature, and who is additionally suffering from a documented ailment, further tilts the balance in favour of conditional release rather than continued incarceration.

We are also influenced by the fact that certain  co-accused, that is accused no. 13 (Mohd. Manan Dar @ Manan), accused no. 10 (Mateen Ahmed Bhatt), and accused no. 16 (Rauf Ahmed Bhatt), having similar allegations against them, have been granted bail by the learned Special Court itself, while accused no. 26 (Adil Ahmad Ward) has been discharged altogether.

While having found and said the above, this Court is conscious that the grant of bail in matters under the UAPA must be accompanied by  stringent  and  carefully  crafted  conditions,  so  as  to  ensure  that  the legitimate interests of national security and the integrity of the trial process are not compromised. The conditions imposed hereinbelow are therefore calibrated to address these concerns, while also ensuring that the appellant(s) are not subjected to pre-trial detention that has effectively  become  punitive  given  the  projected  duration  of  trial  and the limited role attributed to them in the charge sheet.

Keeping  in  view  the  above,  the  Impugned  Order is  hereby  set aside.

The  appellant(s)  are  directed  to  be  released  on  bail,  subject  to their  furnishing  personal  bail  bonds  of  Rs.50,000/-  with  two  sureties of like amount each to the satisfaction of the learned Trial Court, and subject to the following conditions:-

i. The appellant(s) shall not travel out of the country without the prior permission of the learned Trial Court.

ii. The appellant(s) shall surrender their passports, if any, before the learned Trial Court. In case they do not hold a passport, an affidavit to that effect shall be filed;

iii. The appellant(s) shall furnish their current residential addresses, contact numbers, and e-mail addresses to the Investigating Officer as well as to the learned  Trial Court.  They shall use only one mobile phone and/or one landline number during the course of trial. Details of these numbers shall be provided to the Special Public Prosecutor, and the mobile phone shall always be kept in the switched-on mode. They shall not change their place of residence or contact particulars without giving at least seven days’ prior written intimation to the Investigating Officer and the learned Trial Court;

iv. The  appellants  shall  personally appear  on  every Monday between 10:00 A.M. and 12:00 Noon, before the Station House Officer, Local Police Station, and mark their attendance. The Station House Officer shall maintain a separate register of attendance in respect of each of these appellant(s) and shall furnish  a  monthly  compliance  report  to  the  learned  Trial  Court, which shall be placed on the main record of the case;

v. The appellant(s) shall not directly or indirectly contact, influence, intimidate, or attempt to contact any witness or any person connected  with  the  proceedings,  nor  shall  they  associate with or participate  in  the  activities  of  any  group  or  organization linked to the subject matter of the present FIR/final report;

vi. The appellant(s) shall not join any WhatsApp group or other social media platforms where anti-national material is uploaded or circulated or propagated. They shall themselves also not upload/share/disseminate or circulate any anti-national material on any  social media platform  or otherwise. They  shall also furnish an undertaking to this effect before the learned Trial Court;

vii. The appellant(s) shall fully cooperate with the trial and shall appear on every date of hearing before the learned Trial Court unless exempted by the learned Trial Court, and they shall not exhibit any conduct that has the effect of delaying the proceedings; and,

viii. The appellant(s) shall not make any comment in the media about the present case or their role in the case.

In  the  event  of  the  appellant(s)  violating  any  of  the  conditions mentioned above, the prosecution will be at liberty to seek cancellation of bail granted to the appellant(s).

It  is  made  clear  that  the  observations  made  herein  shall  not  be construed as an expression on the merits of the case, and the same have been made only for the purpose of consideration of bail.

A  copy  of  this  order  be  sent  to  the learned  Trial  Court  as  also the concerned Jail Superintendent for information and necessary compliance.

The appeals along with the pending applications are disposed of in the above terms.