While observing that Union Territory of J&K is facing "onslaught of terrorist activities from the neighboring country, which is orchestrated by ISI of Pakistan", the Jammu & Kashmir High Court on Wednesday (02/12/2020) denied bail to a person (named Pankaj Sharma) who allegedly hobnobbed with ISI of Pakistan and passed on photographs of vital installations and troops movement to them. ( Pankaj Sharma v. Union Territory of J&K and another)
In the order dated December 2, 2020, a Bench of Justice Sanjay Dhar noted, “Providing vital information, to my mind, is nothing but waging war against the country and it also falls squarely within the definition of an offence punishable under of Enemy Agents Ordinance”. As per the order, the petitioner was alleged to have passed on photographs of Samba City, Bari Brahmana, Ujh Bridge, Vijaypur Market, Bahi Nallah, Bari Brahmana Railway Station, Ghagwal Bridge, Pagwal Nallah. He also allegedly sent pictures of trains boarded with army personnel at Railway Station, Bari Brahmana before the Balakote strike.
As per the prosecution's case, the petitioner (Pankaj Sharma) sent photographs of vital installations of Indian Territory to ISI of Pakistan through Facebook Messenger and in lieu thereof, he received money, thereby posing danger to the security, integrity and sovereignty of the Country.
On the basis of this information, an FIR under Section 121 IPC and Section 3 of Enemy Agents Ordinance Act. 2005. came to be registered and Pankaj Sharma was taken into custody.
The petitioner is stated to have sent photographs of Samba City, Bari Brahmana, Ujh Bridge, Vijaypur Market, Bahi Nallah, Bari Brahmana Railway Station, Ghagwal Bridge, Pargwal Nallah and besides this prior to the Balakote strike, petitioner is stated to have sent photographs of trains boarded with army personnel at Railway Station, Bari Brahmana.
The pictures were allegedly sent to two Facebook IDs (who claimed that they are stationed at Sudan) which were later on found to be fake.
The money is stated to have been received by the petitioner and his relatives/friends from Dubai, Maharashtra etc.
The petitioner had moved an application for grant of bail before the learned trial Court but the same was rejected vide order dated 14.08.2020.
According to the petitioner, the learned trial Court, while rejecting the bail application of the petitioner, has not appreciated the correct position of law and has not considered the facts and circumstances in right perspective. It is also averred that antecedents of petitioner are clean and he has been roped in a false case. Lastly, it has been averred that petitioner will abide by the conditions of bail, in case he is enlarged on bail.
Whereas the respondents have resisted the bail application of the petitioner by filing reply thereto. In the reply, the respondents have contended that the petitioner has committed a very heinous offence, which is against the society at large and as such, he does not deserve the concession of bail. It is further contended that petitioner cannot be granted bail both on facts as well as on law.
It has been vehemently contended by the learned Senior Counsel, appearing for the petitioner, that there is no material on record to even remotely suggest that the petitioner has committed an offence of waging war against the government or that he has committed any offence within the meaning of Section 3 of Enemy Agents Ordinance. According to the learned Senior Counsel, mere taking of photographs of some installations and sending it to some persons stationed at Sudan would not amount to either hobnobbing with enemy agents or waging war against the government of India. It has been contended that there is no material on record to show that the petitioner had any link with Pakistani ISI or that he had any knowledge of the links between ISI and the persons to whom he was sending the photographs. Learned Senior Counsel has also contended that even if, it is assumed that the photographs were being sent by the petitioner to the persons linked with ISI, still then no offence is made out against him because the kind of photographs, which the petitioner is alleged to have sent, are already available on the internet.
Learned counsel for the respondents, on the other hand, has argued that the petitioner has knowingly indulged in activities which are prejudicial to the security of the State, inasmuch as he has not only passed on the photographs of vital installations to the enemy of the nation but he has also passed on photographs of troops movement to the enemy. The learned counsel has submitted that in order to book a person for the offence of waging war against the Country, it is not necessary that such person should actually acquire or use arms and ammunition against the armed forces of the country. Learned AAG has submitted that having regard to the gravity of offences alleged to have been committed by the petitioner, he does not deserve the concession of bail.
The court noted that though the petitioner was initially unaware that the persons he kept sending messages to belonged to the ISI, he did come to know it later, and still kept sending them the images and information. He was also deleting the images from his own devices fearing detection. The Court also noted that not just the petitioner, but his mother and a friend named Ashwini Kumar were also receiving money for the photographs in their bank accounts.
The court rejecting the bail plea noted in the order that the charge sheet filed in the case, the documents attached, bank statements and the statements of witnesses prima facie show that the accusations against the petitioner were true. The co-accused in the case who belong to Dubai, Abu Dhabi and Maharashtra are still to be arrested. The court rejected the bail plea of the petitioner saying that considering petitioner’s connections with agents in Dubai and Abu Dhabi, the possibility of him fleeing could not be ruled out.
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