[Cites 10, Cited by 0]
Jammu & Kashmir High Court
2026:Jklhc-Jmu:228-Db vs Ut Of J&K Through P/S Jic on 7 February, 2026
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
2026:JKLHC-JMU:228-DB
Sr. No. 35
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case No: -. CrlA(D) No. 24/2025
Reserved on:- 31.01.2026
Pronounced on:- 07.02.2026
Uploaded on:- 09 .02.2026
Whether the operative part or full judgment
is pronounced: Full
Abdul Rashid, Age 42 years .... Appellant(s)
S/o Abdul Gani Sheikh
R/o Village Tantna, Tehsil Gundana, District Doda
At present lodged in Central Jail Kot Bhalwal,
Jammu.
Through: - Mr. I.H. Bhat, Advocate
V/s
UT of J&K through P/S JIC, Jammu / SIA, ......Respondent(s)
Jammu.
Through: - Mrs. Monika Kohli, Sr. AAG
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE SANJAY PARIHAR, JUDGE
JUDGMENT
Per: Sanjay Parihar-J
1. By way of the present appeal, the appellant calls in question the
order passed by the Court of 3rd Additional Sessions Judge, NIA
Court, Jammu (hereinafter referred to as "the Trial Court"),
whereby the bail application preferred by him came to be
dismissed. The appellant is facing trial in FIR No. 06/2010
registered at Police Station JIC/SIA for offences punishable under
Sections 13, 18, 18-B, 20 and 38 of the Unlawful Activities
(Prevention) Act, 1967. The grievance projected by the appellant is
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that the impugned order suffers from legal infirmity, inasmuch as
the material prosecution witnesses examined so far have not
supported the case of the prosecution, yet the Trial Court has
declined bail despite the appellant being in custody since the filing
of the charge-sheet.
2. Learned counsel appearing for the appellant contended that the FIR
pertains to the year 2010 and that the appellant, though formerly a
militant, had surrendered and thereafter faced prosecution in at least
two criminal cases in which he earned acquittal. It was submitted
that post surrender, the appellant did not indulge in any unlawful or
criminal activity, and even his detention under the Public Safety
Act did not survive judicial scrutiny. It was further argued that
though the case was registered in the year 2010, the charge-sheet
came to be filed only in the year 2022, that too without any legally
admissible evidence, rendering the entire prosecution case suspect
and untenable.
3. It was further submitted that the impugned order is vitiated as no
recovery whatsoever has been effected from the appellant. The SIM
card alleged to have been used in commission of the offence has not
been recovered, nor has the mobile phone allegedly used for
making extortion calls been seized. The appellant was arrested after
a lapse of more than twelve years from the date of registration of
the FIR, despite having been released in the year 2014 in other
cases. Learned counsel contended that even as per the case diary,
one of the Investigating Officers had initially opined that no case
was made out against the appellant, but for reasons unexplained, the
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investigation was revived in the year 2020, culminating in the
appellant's arrest and filing of the charge-sheet.
4. The respondents, in their reply, submitted that FIR No. 06/2010
was initially registered on 27.07.2010 under Sections 420, 406 and
109 RPC on the basis of an enquiry report, which revealed misuse
of SIM card No. 9906068834 by a terrorist to facilitate terrorist
activities. It was stated that the said SIM card was originally issued
in the name of one Mst. Halima Begum, which subsequently came
into possession of her son Amir Nazir, who handed it over to his
friend Mohd. Sharief Malik. The SIM card was thereafter allegedly
forcibly taken by the appellant, who at the relevant time was active
as a militant in District Doda.
5. It was further alleged that the appellant, along with one Sartaj
Ahmed (since deceased), used the said SIM card for making
extortion calls to influential persons and contractors in the area,
demanding payment of money to further terrorist activities. It was
also alleged that the appellant indulged in motivating the youth of
the area to join militancy. During investigation, offences under
Sections 13, 18, 18-B and 20 of the UAPA were found to be
attracted against the appellant.
6. The respondents contended that PW-32 and PW-33, examined
during the trial as protected witnesses, have supported the
prosecution case and specifically deposed regarding extortion calls
received by them from one "Arsalan", an active militant in District
Doda. On the strength of such evidence, it was submitted that the
Trial Court rightly declined bail, as the appellant failed to
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demonstrate that the accusations against him were prima facie
untrue, particularly in view of the gravity of the offences alleged.
7. Mrs. Monika Kohli, learned Senior AAG, appearing for the
respondents, supported the impugned order and argued that the
same has been passed after due appreciation of the material
available on record, strictly in conformity with the mandate of
Section 43-D (5) of the UAPA. It was contended that once charges
have been framed, a prima facie satisfaction regarding the
appellant's involvement stands recorded, and the trial being
underway, no indulgence is warranted at the stage of bail.
8. Learned Senior AAG further submitted that the appellant had
remained a District Commander of the proscribed organization
Hizbul Mujahideen and had a history of terrorist activities.
According to the prosecution, even after his surrender, the appellant
continued to motivate youth to join militancy. It was urged that the
stringent provisions of the UAPA must be given full effect, as grant
of bail would not only impede the trial but also pose a serious threat
to public order and the fragile normalcy restored in the District
Doda area.
9. We have given our anxious and thoughtful consideration to the rival
submissions advanced at the Bar. At the outset, it is not in dispute
that the appellant is facing trial for offences under Sections18, 18-
B, and 38 of the UAPA and has been in custody since 31.05.2022.
It is also fairly conceded that the appellant had earlier been
associated with the proscribed organization Hizbul Mujahideen and
was active in District Doda during the year 2010.
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10. As per the appellant's own case, he renounced militancy and
surrendered in the year 2010 under the rehabilitation policy
prevalent at the relevant time. He thereafter faced prosecution in
FIR No. 137/2010 of Police Station Kokernag and FIR No. 31/2010
of Police Station Doda and was also detained under the Public
Safety Act by the District Magistrate, Anantnag. Upon completion
of trial and quashment of the PSA, the appellant was released
during the years 2013-2014. The present FIR, though registered on
27.10.2010, inexplicably remained under investigation for over a
decade, a circumstance which requires careful scrutiny.
11. It is a matter of significance that at the time of the alleged
occurrence, though the appellant was stated to be associated with a
proscribed organization, the FIR was not registered under any
provision of the Unlawful Activities (Prevention) Act, but only
under Sections 420, 406 and 109 of the RPC. If, as alleged, the
appellant was extending extortion threats in his capacity as a
militant and for furtherance of terrorist activities, it remains
unexplained as to why no material evidencing such activities was
collected contemporaneously or in close proximity to the alleged
commission of the offence. The belated invocation of the provisions
of the UAPA, after a lapse of more than a decade, casts a serious
doubt on the genuineness of the prosecution case.
12. The appellant has also rightly contended that even as per the
investigation record, one of the Investigating Officers had initially
concluded that no case was made out against him. The revival of
the investigation after several years, culminating in the appellant's
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arrest in 2022, without any fresh or cogent material coming on
record, further weakens the prosecution narrative. Whether the
testimony of PW-32 and PW-33 is sufficient to establish the
complicity of the appellant is a matter to be determined at the stage
of trial; however, for the purpose of bail, the delayed recording of
their statements raises legitimate concerns regarding credibility.
13. The protected witnesses, PW-32 and PW-33, admittedly remained
silent from the year 2010 till their statements were recorded nearly
ten years later. Their testimony was secured at a time when the
appellant had already renounced militancy and had been living
outside the fold of insurgency for several years. Such unexplained
dormancy of key witnesses, particularly in cases involving serious
allegations, materially impacts the prima facie assessment required
under Section 43-D (5) of the UAPA.
14. It is further not disputed that neither the SIM card alleged to have
been used for making extortion calls nor the mobile phone through
which such calls were allegedly made has been recovered during
investigation. Equally unexplained is the fate of the intermediaries
through whom the SIM card is stated to have changed hands. These
missing links strike at the root of the prosecution case, especially
when the entire allegation hinges upon telephonic communication
attributed to the appellant.
15. The appellant has urged that the shadow of his past association has
continued to haunt him, rendering him vulnerable to implication
without credible supporting material. While it is not possible at this
stage to return a definitive finding on the truthfulness or otherwise
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of the allegations, the circumstances placed on record do suggest
that the prosecution case suffers from inherent weaknesses.
Notably, there is nothing on record to indicate that immediately
prior to his arrest in 2022, the appellant was involved in motivating
youth to join militancy or in any other unlawful activity.
16. The prosecution has asserted that there are reasonable grounds for
believing that the accusations against the appellant are true. In NIA
v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, the Supreme
Court cautioned that while considering bail under the UAPA, courts
must confine themselves to a prima facie assessment and must not
conduct a mini-trial by weighing the admissibility or sufficiency of
evidence. The High Court, in that case, was found to have exceeded
its jurisdiction by re-appreciating evidence in detail.
17. In Union of India v. K.A. Najeeb, (2021) 3 SCC 713, however, the
Supreme Court clarified that the rigours of Section 43-D (5) do not
completely oust the jurisdiction of constitutional courts to grant
bail, particularly where prolonged incarceration results in violation
of the fundamental right to speedy trial under Article 21 of the
Constitution. It was held that statutory restrictions and
constitutional safeguards must be harmoniously balanced, and
where the trial is unlikely to conclude within a reasonable time, the
continued detention of an accused may not be justified.
18. Recently, in Gurwinder Singh v. State of Punjab & Anr.,
Criminal Appeal No. 704 of 2024 decided on 07.02.2024, the
Supreme Court reiterated that the expression "prima facie true"
requires the court to assess whether the material on record discloses
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credible involvement of the accused in the commission of the
offence. It was held that once charges are framed, a strong
suspicion may arise, but even then, the accused can seek bail by
demonstrating that the material relied upon does not reasonably
support the accusation.
19. Applying the aforesaid principles to the facts of the present case, it
is evident that although charges have been framed against the
appellant under Sections 18-B and 38 of the UAPA, the material
placed on record does not disclose any concrete act of recruitment,
indoctrination or motivation of youth to commit terrorist acts after
the appellant's surrender. The past conduct of the appellant, for
which he has already faced prosecution and detention, cannot by
itself justify continued incarceration in the absence of credible and
proximate evidence connecting him to the alleged offences in the
present FIR.
20. In view of the foregoing discussion, we are of considered opinion
that the appellant has been able to demonstrate, on the touchstone
of broad probabilities, that the accusations levelled against him do
not disclose reasonable grounds for believing that they are prima
facie true. The material collected during the investigation suffers
from inherent infirmities, including unexplained delay in
conclusion of investigation, absence of recovery of the alleged SIM
card and mobile phone, and reliance on testimonies recorded after
an inordinate lapse of time. Consequently, the statutory embargo
contained in Section 43-D (5) of the Unlawful Activities
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(Prevention) Act is not attracted in the peculiar facts and
circumstances of the present case.
21. The continued incarceration of the appellant, who has remained in
custody since 31.05.2022, would amount to pre-trial punishment,
particularly when the prosecution has failed to demonstrate any
proximate or continuing involvement of the appellant in terrorist or
unlawful activities after his surrender in the year 2010. The object
of bail is to secure the presence of the accused during trial and not
to inflict punishment by way of prolonged detention, especially
where the likelihood of the trial concluding within a reasonable
time appears remote.
22. Accordingly, the appeal is allowed and the impugned order passed
by the Court of 3rd Additional Sessions Judge, NIA Court, Jammu,
rejecting the bail application of the appellant, is set aside. The
appellant is ordered to be released on bail in FIR No. 06/2010 of
Police Station JIC/SIA, subject to his furnishing a personal bond in
the sum of ₹ one lac, along with two sureties of the like amount to
the satisfaction of the Trial Court.
23. The appellant shall remain bound by the conditions that he shall
appear before the Trial Court on every date of hearing unless
exempted for valid reasons, shall not directly or indirectly influence
or intimidate any prosecution witness, shall not leave the territorial
jurisdiction without prior permission of the Trial Court, and shall
refrain from indulging in any activity prejudicial to the interest of
the State or public order.
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24. It is made clear that the observations recorded herein are confined
solely to the adjudication of the present bail appeal and shall not be
construed as an expression on the merits of the case, which shall be
decided independently by the Trial Court on the basis of the
evidence led before it.
(Sanjay Parihar) (Sanjeev Kumar)
Judge Judge
JAMMU
07.02.2026
Diksha
Whether the order is speaking: Yes
Whether the order is reportable: Yes
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