Activities Not Lawful Merely Because Organization Wasn’t Declared Unlawful: Delhi High Court Rejects JKDFP Leader Shabir Ahmed Shah’s Bail Plea
The Delhi High Court said that though the accused has been in custody for five years, the charges have already been framed and the trial is underway and there is no delay on the part of the prosecution for not examining its witnesses.
Justice Navin Chawla, Justice Shalinder Kaur, Delhi High Court
The Delhi High Court has denied bail to Shabir Ahmed Shah, leader of Jammu Kashmir Democratic Freedom Party (JKDFP) who has been accused under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
The Court was hearing a Criminal Appeal preferred by Shabir under Section 21 of the National Investigation Agency Act, 2008 (NIA Act), challenging the Order of the Additional Session Judge (ASJ) by which his Bail Application was dismissed.
A Division Bench comprising Justice Navin Chawla and Justice Shalinder Kaur held, “In case the Appellant was involved in unlawful activities, the same cannot be termed as lawful merely because the organization he was heading was at the time, not declared an unlawful association. … Furthermore, while it is submitted that the Appellant by virtue of being the Chairman of the organization, he had met several prominent political leaders, perhaps in pursuit of a peaceful resolution for Kashmir, this fact, in itself, does not assist the Appellant’s case.”
The Bench added that though the accused has been in custody for five years, the charges have already been framed and the trial is underway and there is no delay on the part of the prosecution for not examining its witnesses.
Senior Advocate Colin Gonsalves appeared for the Appellant while Senior Advocate Sidharth Luthra appeared for the Respondent.
Facts of the Case
The prosecution’s case is premised on an alleged conspiracy hatched among several accused persons who were purportedly engaged in secessionist activities in the erstwhile State of Jammu and Kashmir (J&K) through various terrorist activities, such as organization of violent protests, instigating the general public to commit violence, pelting of stones at the Security Forces, burning of Schools, damaging public property, etc and waging war against the Union of India. Their ultimate aim and objective was to seek the secession of the J&K from the Union of India, all in the garb of ‘Freedom’. National Investigation Agency (NIA) launched a probe during which it was allegedly found that the accused persons were members of various terrorist organizations and unlawful associations, such as Lashkar-e-Taiba (LeT), Hizb-ul-Mujahideen (HM), Jammu Kashmir Democratic Freedom Party (JKDFP), Jammu Kashmir Liberation Front (JKLF), Jaish-e- Mohammad (JoM) etc., and are members of the All Parties Hurriyat Conference (APHC).
It was alleged that the Appellant-accused played a substantial role in facilitating a separatist/militant movement in the J&K by inciting and instigating the general public to chant slogans in support of the secession of the J&K, paying tribute to the family of slain terrorists/militants by eulogizing them as ‘martyrs’, receiving money through hawala transactions and raising funds through the LoC trade, which were allegedly used to fuel subversive and militant activities in the J&K. The NIA allegedly recovered incriminating materials, including documents and electronic devices from the accused’s residence.
Reasoning
The High Court in the above regard, observed, “Additionally, the fact that the videos relied upon by the Prosecution are 25 years old does not absolve the Appellant of the alleged offences committed at the relevant time. Needless to say, these videos and the alleged acts depicted therein came to light only when the investigation in the present case was initiated.”
The Court further said that it is expected that the prosecution will drop the witnesses who are not relevant so that the trial may proceed at a faster pace.
“It is a settled position of law that for any precedent to be relied upon, it must be examined in the context of the totality of its facts and circumstances. Even a minuscule difference in the facts can render a decision inapplicable when juxtaposed with the factual matrix of the case being dealt with at hand”, it noted.
The Court also said that the Appellant’s involvement in a number of cases of a similar nature, thus, the possibility cannot be ruled out that being a Chairman of the unlawful organization JKDPF, he would not indulge in similar unlawful activities and may attempt to tamper with evidence as well as influence witnesses who are yet to be examined.
“It is well-settled law that at the stage of Bail the court is concerned with the existence of the material against the accused and not as to whether those materials are credible or not. Therefore, considering the entire gamut of facts and circumstances, the present case is not a fit case to extend the benefit of the grant of Bail to the Appellant. Consequently, there is no question of entertaining the alternative prayer made by the Appellant seeking House Arrest, in view of the serious allegations against the Appellant as well as the sensitivity and gravity of the issues involved”, it concluded.
Accordingly, the High Court dismissed the Appeal and denied bail to the accused.
Cause Title- Shabir Ahmed Shah v. National Investigation Agency (Neutral Citation: 2025:DHC:4966-DB)
Appearance:
Appellant: Senior Advocate Colin Gonsalves and Advocate Kamran Khwaja.
Respondent: Senior Advocate Sidharth Luthra, SPP Akshai Malik, Advocates Ayush Agarwal, Khawar Saleem, and K.P. Rustom Khan.
