IMPORTANT POINT
Bail – Accused cannot be kept in incarceration for indefinite period waiting for completion of trial.

JUDGMENT

Rajnesh Oswal, J.—This appeal has been filed against the judgment dated 20.02.2025 rendered by the Court of learned Special Judge (UAPA), Anantnag (hereinafter to be referred as “the trial court”), whereby the application filed by the appellant for grant of bail in charge sheet arising out of FIR No. 102/2020 for offences punishable under Sections 307 IPC, 7/25 Arms Act and Sections 13, 18-B, 20, 23, 33and 39 Unlawful Activities (Prevention) Act, 1967 (for short “the Act), has been rejected.

2. It is stated that the appellant was arrested on 17.11.2021 pursuant to the statement made by the accused Hafiz Abdullah Malik and no incriminating material has been seized from the appellant. It is contended that the statement made by the accused-Hafiz Abdullah Malik during the Police custody is not valid in the eyes of law. It is also urged that out of 30 witnesses cited by the prosecution, only 13 witnesses have been examined till date and the witnesses examined so far have not implicated the appellant in the commission of offences under sections 13 and 39 of the Act for which the appellant has been charged.

3. Respondent has filed the response, stating therein that on 08.11.2021, Police Station, Sirgufwara received specific information about hiding of the militants in Village Wahadan. On receipt of the said information, said village was cordoned off by the security forces along with police personnel of Police Station, Srigufwara and search was launched to trace out the hiding militants. During search, one militant of banned outfit Lashkar-e-Taiba was apprehended in injured condition at Village Wahadan. During initial interrogation, the apprehended militant revealed his name as Hafiz Abdullah Malik and one pistol, one magazine and seven cartridges of pistol were recovered from his possession. During questioning, the alleged accused disclosed that the appellant (Burhan Ahmed Mattoo) was working as “Over Ground Worker” with the terrorist organization, Lashkar-e-Taiba. After completion of the investigation, charge sheet was produced before the competent court of law on 30.04.2022. Out of 30 witnesses cited by the prosecution, statements of 13 witnesses have been recorded. It is further averred that the learned trial court has rightly dismissed the bail application.

4. Learned counsel for the appellant has submitted that the appellant has been arrayed as accused only on the basis of disclosure statement made by accused-Hafiz Abdullah Malik and except that statement, there is no evidence against the appellant with regard to his involvement in commission of any offence. He has further argued that the appellant has been in custody for the last nearly four and a half years and the witnesses examined by the prosecution so far have not deposed against the appellant. Learned counsel for the appellant further submitted that a single-line insertion was made into the disclosure statement of the accused, Hafiz Abdullah Malik, alleging that the appellant was working as Over Ground Worker. He has placed reliance upon the judgment of the Co-ordinate Bench of this Court in case, titled, Shabnam Akhter vs. U.T. of J&K, numbered as Crl A(D) No. 37/2025 dated 12.02.2026.

5. Mr. Mohsin Qadiri, learned Sr. AAG has submitted that except the disclosure statement made by the accused-Hafiz Abdullah Malik, there is no other evidence against the appellant, but as the appellant has been charged for the commission of offences punishable under Sections 39 of the Act, therefore, in view of the bar contained in Section 43-D (5)of the Act, the bail cannot be granted to the appellant.

6. Heard and perused the record including the trial court record.

7. The record depicts that the appellant has been arrayed as accused No. 2 in charge sheet, titled, “U.T. of J&K vs Hafiz Abdullah Malik and others” only on the basis of the statement made by accused No. 1, Hafiz Abdullah Malik, wherein he has stated that the appellant was working as Over Ground Worker. There is no r