Judgment

Gita Mittal, CJ.—The appellant has filed the present appeal impugning an order dated 27th May, 2019, whereby the learned Special Judge, designated under the National Investigation Agency Act, 2008, has rejected an application filed by the appellant for bail.

02. We have heard Mr Arshid Andrabi, learned counsel for the appellant and Mr Nissar Hussain Shah, learned Sr AAG, at great length.

We had also called for the record of the trial court which has been carefully perused by us.

03. It is on record in the reports before the trial court that during the intervening night of 7/8 September 2018 at about 23:45 hours, Police Station Achabal received information to the effect that some militants who were in two Maruti cars have carried out a murderous attack with their illegally acquired sophisticated weapons upon a police minority guard situated at Khul Ranipora which had resulted in serious injuries to the guard commander namely HC Janak Raj No.26/IRP 17th. However, one unknown militant had died in the retaliatory action on spot etc.

Acting on the aforesaid information, Case FIR No. 84/2018 U/S 307 RPC 7/27 Arms Act, 16, 20 and 38 ULA(P) Act was registered in Police Station Achabal. During the course of investigation, I/O along with Police team and contingent of 19 RR reached on spot. Injured HC was evacuated to hospital while as the area was cordoned off for tracing out the involved terrorists. The dead body of the killed militant was taken into possession and 01 AK-56 along with 03 magazines, 59 live AK rounds, 06 empty cartridges and 01 pouch was recovered from the possession of said deceased militant whose identity was later on established as Bilal Ahmad Bhat S/o Abdul Ahad Bhat of Tantraypora Yaripora Kulgam.

During the search process, two vehicles viz 1. Alto-K10 bearing registration No.JK18A-6759 and 2. I-10 JK03E-4241 were found left behind by the culprits on the road in the area. Upon search of these vehicles incriminating material viz gunpowder like substance, SLR bullet without case, pistol grip, clothes and other material was recovered. As such, both the vehicles and the material were seized in the case. Seizure memos and site plan were prepared on spot. After completion of medico legal formalities, the dead body was handed over to its legal heirs for last rites.

During investigation, statements of witnesses acquainted with the facts and circumstances of the case were recorded. The sample from seized gunpowder like substance was sent to FSL Srinagar for chemical analysis and expert opinion received thereof revealed that the seized material was a “smokeless powder which is used as propellant has been detected from the sample”. Medical opinion in respect of injured HC Janak Raj No.26/IRP 17th Bn reveals the nature of injury suffered by him as “grievous”. Medical opinion obtained in respect of the deceased militant revealed that the death of the deceased has caused due to cardiopulmonary arrest due to firearm injury on vital organs.

Statements of material witnesses were additionally got recorded in terms of section 164-A Cr.PC.

Call details of suspects namely Ishrat Hussain Sheikh S/o Ghulam Qadir Sheikh Nisar AhmadTeeli S/O Abdul Gani Teeli residents of Ranipora, Abdul Qayoom Shah S/o Ghulam Qadir Shah R/o SICOP Road Bijbehara and Adil Amin Thoker S/O Mohd Amin Thoker R/o Sopat Kulgam were obtained.

Test identification parade of accused Saif Gulzar Ganie S/o Gulzar Ahmad Ganie and accused Aadil Amin Thoker S/o Mohd Amin Thoker residents of Sopat Kulgam was conducted as per procedure.

As per statements of witnesses and evidence collected as well as CDR analysis, militants namely (i) Muzaffar Ahmad Bhat S/O Mohd Amin Bhat R/o Sopat Kulgam, (ii) Roshan Zameer Tantray @ Zaid Bai S/o Ghulam Mohd Tantray R/o Achwara Bijbehara, (iii) Nasir Gulzar Chadroo S/O Gulzar Ahmad Chadroo R/O Arwani Bijbehara, (iv) Gulzar Ahmad Bhat S/O AbdulSalam Bhat R/o Tarigam Kulgam, (v) Bilal Ahmad Bhat S/o Abdul Ahad Bhat R/o Tantraypora (deceased),