Supreme Court: The bench of AM Khanwilkar and Ajay Rastogi, JJ has set aside the order of the Delhi High Court granting bail to Zahoor Watali, a J&K businessman, in a Terror Funding case.
Zahoor Ahmad Shah Watali is alleged to have been involved in unlawful acts and terror funding in conspiracy with other accused persons. He has allegedly 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.
Designated Court’s order rejecting bail
The Court noticed that the accusation against Watali was of being a part of a larger conspiracy to systematically upturn the establishment to cause secession of J & K from the Union of India. Keeping in mind the special provisions in Section 43D of the Unlawful Activities (Prevention) Act, 1967 it held,
“In view of the above facts and circumstances, the statements of witnesses/material/documents and other material placed on record by NIA, offences as alleged against the accused are prima facie made out. Therefore, in view of the bar under proviso to Section 43D(5) of UA(P) Act, the accused’s prayer for bail cannot be granted.”
Delhi High Court’s order granting bail
The High Court granted bail to Watali with riders and said,
“The impugned order dated 8th June, 2018 of the trial Court is accordingly set aside. The Appellant is directed to be released on bail subject to his furnishing a personal bond in the sum of Rs.2 lakhs with two sureties of like amount to the satisfaction of the trial Court”
Factors to be considered in bail application as decided in State of U.P. through CBI Vs. Amarmani Tripathi, (2005) 8 SCC 21
- whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
- nature and gravity of the charge;
- severity of the punishment in the event of conviction;
- danger of the accused absconding or fleeing, if released on bail;
- character, behaviour, means, position and standing of the accused;
- likelihood of the offence being repeated; reasonable apprehension of the witnesses being tampered with;
- danger of justice being thwarted by grant of bail.
According to the bench, the High Court, in the present case, adopted an inappropriate approach whilst considering the prayer for grant of bail. 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 bench said that the Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true.
It hence, held,
“A fortiori, we deem it proper to reverse the order passed by the High Court granting bail to the respondent. Instead, we agree with the conclusion recorded by the Designated Court that in the facts of the present case, the respondent is not entitled to grant of bail in connection with the stated offences, particularly those falling under Chapters IV and VI of the 1967 Act.”
[National Investigation Agency v. Zahoor Ahmad Shah Watali, 2019 SCC OnLine SC 461, decided on 02.04.2019]