The court affirmed that bail should not be denied solely based on association with a terrorist organization, emphasizing the presumption of innocence and the need for substantial evidence.

JUDGMENT

Sanjay Parihar. J.

1. Appellants are aggrieved of order dated 31^st July 2023 passed by the learned Special Judge (designated court under NIA) Srinagar, in case FIR 8/2022 u/s 13 ULA(P) Act of PS Chanpora. In terms of order impugned, respondent appears to have been let on bail. Appellant’s claim that the order impugned is in contravention of law because the Court below has not appreciated the fact that there were sufficient evidence connecting the respondent with the commission of offense. That the Court below while deciding the bail application was required to consider the merits of the case in the manner that the respondent was working as OGW for Terrorist Organization TRF (banned organization) which has emerged to be a national security suspect. The respondent was actively involved in providing logistic support to the members of the said organization who had unleashed a spate of terror by killing persons especially on soft targets. That the trial Court has sifted the evidence at the stage which is against law. Investigating Agency had cited Thirteen (13) prosecution witnesses who were yet to be recorded, thus there was no material before the trial Court to have allowed it to exercise discretion of bail in favour of the respondent. That the order sans reasons, thus, is required to be set-aside because the material before the trial Court was sufficient enough to dissuade it from enlarging the respondent on bail.

2. Learned counsel for the respondent argued that the trial Court has exercised jurisdiction in accordance with law because respondent had been charged only under Section 13 of the “Act” which carries punishment of Seven (7) years and since the offence falls in Chapter-III of the Act, to which Section 43-D has no application, therefore, the order under challenge has been drawn in accordance with law and no fault can be laid against the discretion exercised by the Court below.

3. On the other hand, learned counsel appearing for the petitioner claims that the Court below has failed to adopt a rational approach and judge the evidence and circumstances with the yardstick of probabilities. It has failed to consider the law on the subject and, thus, has resulted in miscarriage of justice. That the record of the trial Court would definitely convince this court, about the trial Court having landed in error in ordering release of the respondent on bail.

4. We have heard the learned counsel for the parties and perused the record of the case. At the very outset, this Court has been apprised that charge sheet, that was laid before the trial Court on 30.08.2022 against Twenty (20) accused persons including the respondent, was based upon case FIR 8/2022 registered under Sections 13, 18, 19, 39 UL(P) Act by PS Chanpora on the strength of reliable information that one Zahid Rashid Ganie has received directions from banned organization TRF/LeT Terrorist namely Momin Gulzar, Arif Hazar alias Reyan, Jahangir Ahmad Naikoo to regenerate terrorist activities in District Srinagar and, as a sequel thereto, search of house of the said Zahid Rashid Ganie was conducted from whom a mobile phone along with anti- national posters of TRF/LeT were recovered. It is alleged that he was in contact with various other OGW’s. During further investigation/interrogation, Zahid Rashid Ganie disclosed names of another five associates and one pen-drive was also recovered which contains objectionable photographs which were analyzed and sent to FSL Srinagar for expert opinion.

As against respondent, the allegations were that he was working as OGW for TRF, providing logistic support to its members for executing the terrorist acts. Accused/respondent was involved in providing a variety of logistic support to the shooter of TRF who have unleashed a spate of terror by killing persons on soft targets. These targets included street vendors, labours from outside Jammu and Kashmir working in orchards, small shops and commercial establishments, policemen who were off d