The court upheld the trial court's rejection of bail, emphasizing the applicability of Section 43-D(5) of the UAP Act due to the serious nature of the charges against the appellant.

JUDGMENT :

CHOWDHARY, J.

01. The instant appeal has been filed by the appellant-Javaid Ahmad Bhat through his father Abdul Majeed Bhat, under Section 21 of the National Investigation Agency Act, 2008 read with Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, for setting-aside the order of rejection of bail dated 19.12.2024 passed by the Court of learned Additional Sessions Judge, Special Judge (Designated under NIA Act), Srinagar ("NIA Court‟ for short) in FIR No. 19 of 2022 under Sections 13, 18, 19, 39 of the Unlawful Activities (Prevention) Act, 1967 (for short, "UAP Act‟) registered at Police Station, Khanyar in case titled “Javid Ahmad Bhat Vs. Union Territory of J&K” with a further prayer that the appellant be released on bail.

02. The appellant has challenged the impugned order on the grounds that there is no material to give rise to the belief that accusations against the appellant are prima facie true and the evidence against the appellant is only circumstantial; that the appellant has been sought to be implicated in the case based on his own self-incriminating statement recorded in police custody before the Executive Magistrate regarding "knowledge‟ and the foundational circumstance of "knowledge‟ is not substantiated by any other evidence, be it ocular, documentary or electronic; that no reasonable foundation is available for the court to believe that accusations against the appellant are prima facie true; that rigour of section 43-D (5) of the UAP Act is not at all attracted in the case; that the order of rejection of bail suffers from the patent illegality, so much so, that the cardinal principle of criminal law is that benefit of doubt always goes to the accused but the trial court, while rejecting bail, has not given this benefit to the appellant; that the trial court has not appreciated the fact that the accused No. 4-Kaleem Zaffar, who provided Aadhar Cards and faked the identity of foreign terrorists, is already granted bail by the Court. Lastly, it has been prayed that the order of rejection of bail of the appellant be set aside and the appellant be released on bail.

03. Learned counsel for the appellant, in line with the memo of appeal, argued that the prolonged incarceration of the appellant , who is languishing in jail for the last two years, amounts to the pre-trial conviction and deprivation of his liberty as in the facts and circumstances of the case, no reasonable foundation is available for the trial court to believe that accusations against the appellant are prima facie true as such, the rejection of bail of the appellant is antithetical to Article 21 of the Constitution of India; that the rigour of section 43-D (5) of the UAP Act is not at all attracted in the case; that the trial court has applied strict burden in framing opinion that the appellant is prima facie guilty; that the order of rejection of bail suffers from the patent illegality so much so that the cardinal principle of criminal law is that benefit of doubt always goes to the accused and the trial court, while rejecting the bail of the appellant, has not given this benefit to the appellant; that the only reason foisted by the trial court for rejection of bail of the appellant is the ground of severity of allegations and the risk posed by the appellant's release.

04. He has further argued that the prosecution has cited 36 witnesses, out of which only 10 witnesses have been examined and none of the said 10 witnesses have deposed anything averse against the appellant; that the appellant has been behind the bars for the last two years, as such he is entitled to be released on bail. Lastly, he has argued that the order of rejection of bail of the appellant be set aside and the appellant be released on bail.

05. Learned counsel for the respondent, ex adverso, vehemently argued that the appellant-accused had been charged for having conspired and abetted the commission of terrorist acts, who has harboured two foreign terrorists in