Jammu & Kashmir High Court
Farooq Ahmed vs Union Territory Of J&K Through on 17 October, 2025
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No. 08
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- Crl A (D) No.02/2025
Pronounced on : 17.10.2025
Uploaded on : 18.10.2025
Farooq Ahmed, Age 30 years S/O
Talib Hussain
R/O Derai Dabsi
At present Dhar Galoon Kotan,
Tehsil Mendhar, District Poonch
At present lodged in Central Jail
Kot Bhalwal, Jammu
.... Appellant(s)
Through:- Mr. I. H. Bhat, Advocate
V/s
Union Territory of J&K through
SHO Police Station Mendhar
.....Respondent(s)
Through:- Mrs. Monika Kohli, Sr. AAG.
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT (ORAL)
17.10.2025
Per: Sanjay Parihar-J
01. This appeal, filed under Section 21 of the National Investigation
Agency Act, 2008, is directed against the order dated 31.12.2024
passed by the learned Additional Sessions Judge, Poonch [Special
Judge (Rajouri-Poonch) under NIA Act], whereby the trial court
declined to grant bail to the appellant in case FIR No. 305/2021
registered for offences punishable under Sections 17, 18, 20, and 40
of the Unlawful Activities (Prevention) Act, 1967 (UAPA), read
with Sections 120-B, 121, 122, and 123 of the Indian Penal Code,
1860.
02. The appellant, who has been in custody since 09.08.2021, assails
the impugned order primarily on the ground that the trial court has
erred in declining bail. It is urged that there exist no reasonable
grounds for believing that the accusations against the appellant are
prima facie true. It is contended that the appellant has been made to
languish in jail without any substantive evidence against him; that
the trial court has failed to assess the probative value of the material
collected during investigation and adduced at trial. Particular
reliance is placed on the trial court's observation that "it is very
difficult to frame an opinion at this stage that reasonable grounds
exist for believing that the accusation against the accused persons
is true or not". According to the appellant, such an observation
itself demonstrates non-application of mind to the mandate of
Section 43-D (5) of UAPA, which is attracted only when there are
reasonable grounds for believing that the accusations against the
accused are prima facie true.
03. Per contra, Mrs Monika Kohli, learned Senior Additional Advocate
General, opposing the appeal, submitted that the appellant is
involved in grave anti-national activities. It is contended that
incriminating material has been recovered from his possession and
that he is an active member of Jammu & Kashmir Ghaznavi Force
(JKGF), a proscribed terrorist organisation under UAPA. It is
further urged that the appellant, along with the co-accused, was
engaged in raising funds not only for perpetrating terrorist acts but
also for sustaining a terrorist organisation, thereby attracting the
rigour of Section 43-D (5) of UAPA.
04. We have heard learned counsel for the parties and carefully perused
the charge-sheet as also the documents annexed thereto. The record
reveals that co-accused Mohd. Ilyas and Mohd. Shakeel were found
to be in contact with Pakistan-based Inter Services Agency, which
has been engaged in destabilising the Indian Union by exhorting
proscribed organisations to indulge in narco-terror activities.
Pursuant to the disclosure statement of co-accused Mohd. Shakeel,
an amount of ₹19,76,000/- in Indian currency, along with posters of
Jammu & Kashmir Ghaznavi Force (JKGF) came to be recovered.
During the investigation, the chain of disclosures allegedly led to
co-accused Mohd. Rehman, from whose possession ₹2,000/- in
Indian currency and eight posters of JKGF were recovered. It was
alleged that co-accused Mohd. Parvaiz provided a cash of Rs.1 lakh
and some Pakistani posters to the appellant-Farooq Ahmed and
similar one was given to co-accused Rashid Ali. It was further
alleged that there was a meeting of the accused wherein Mohd.
Parvaiz gave further direction as per the message given by Mohd.
Razaq and Ismail for recruitment of youngsters in the Jammu
Kashmir Ghaznabi Force in collaboration with each other and
include them in the Outfit. It is on this basis that the appellant,
along with the co-accused, has been arraigned for offences under
Sections 17, 18, 20, and 40 of UAPA read with Sections 120-B,
121, 122, and 123 of IPC. However, the investigating agency did
not find sufficient material to substantiate offences under Sections
19 and 21 of UAPA or Sections 212 and 216 of IPC.
05. From a perusal of the impugned order, it is evident that while the
trial court has referred to the nature of accusations against the
appellant, it has failed to properly appreciate the scope and
application of Section 43-D (5) of UAPA. The said provision lays
down a statutory embargo against the grant of bail if the Court
believes that there are reasonable grounds for believing that the
accusation against the accused is prima facie true. The trial court,
by recording that it is "difficult to frame an opinion at this stage,"
has virtually abdicated its statutory duty to arrive at a satisfaction as
contemplated under Section 43-D (5), thereby rendering its
reasoning unsustainable in law.
06. In National Investigation Agency Vs. Zahoor Ahmad Shah
Watali reported in 2019 (5) SCC 1, it was observed:
"17.In any case, the degree of satisfaction to be recorded by
the Court for opining that there are reasonable grounds for
believing that the accusation against the accused is prima
facie true, is lighter than the degree of satisfaction to be
recorded for considering a discharge application or framing
of charges in relation to offences under the 1967 Act."
In Union of India vs. Shri Shiv Shanker Kesari, 2007 (7) SCC
798, it was held: -
"7. The expression used in Section 37(1)(b) (ii) is
"reasonable grounds". The expression means something more
than prima facie grounds. It connotes substantial probable
causes for believing that the accused is not guilty of the
offence charged, and this reasonable belief contemplated in
turn points to the existence of such facts and circumstances as
are sufficient in themselves to justify recording of satisfaction
that the accused is not guilty of the offence charged.
8. The word "reasonable" has in law the prima facie
meaning of reasonable concerning those circumstances of
which the actor, called on to act reasonably, knows or ought
to know. It is difficult to give an exact definition of the word
'reasonable."
07. Since the appellant had approached the trial court with an
application for grant of bail on the ground that the material
available before the court was not sufficient enough to even raise a
suspicion about his involvement in the commission of unlawful
activities, it was incumbent upon the trial court to have framed an
opinion on whether the grounds so urged by the appellant make out
a case for bail or not.
08. On our careful consideration of the impugned order, we are of the
considered view that the trial court has erred in not appreciating the
import and scope of Section 43-D(5) of the UAPA in its correct
perspective. The modified application of the Code of Criminal
Procedure, 1973, in respect of offences under Chapters IV and VI
of the UAPA, provides that, in addition to the restrictions imposed
under the Code, the Court, before granting bail, must necessarily
hear the Public Prosecutor and return a finding that there existed
reasonable grounds for believing that the accusation against the
accused is prima facie true. Conversely, where no such reasonable
grounds are found to exist, the normal principle governing bail,
namely, that "bail is the rule and jail the exception", would be
attracted.
09. In the present case, without entering into the merits of the
accusations or examining whether the appellant has carved out a
strong prima facie case in his favour, we consider it appropriate to
remit the matter back to the trial court, which shall hear the
appellant as well as the prosecution afresh and thereafter pass a
reasoned order strictly in accordance with law, keeping in view the
mandate of Section 43-D(5) of the UAPA.
10. Consequently, the impugned order declining bail to the appellant is
set aside. The matter is remanded to the trial court for fresh
consideration. The parties, through their learned counsel, shall
appear before the trial court on 17.11.2025, and the trial court shall
proceed to dispose of the bail application as per law. Appeal shall
stand disposed of.2
( Sanjay Parihar ) ( Sanjeev Kumar )
Judge Judge
JAMMU
17.10.2025
Narinder
Whether the order is speaking? : Yes/No
Whether order is reportable? : Yes/No
