The absence of prima facie evidence against the appellant under UAPA necessitates granting bail, regardless of the framing of charges.

JUDGEMENT

ATUL SREEDHARAN, J.

1. The present appeal has been filed by the appellant, who is aggrieved by the Order dated 12th September, 2023, passed by the Special Judge (Designated Court under NIA), Anantnag, in a case arising from FIR No. 87/2013 registered at Police Station, Anantnag, for offences, inter alia, under Sections 13(1)(B), 18,20,23,40 of the Unlawful Activities (Prevention) Act. (for short "UAP Act"). By the said order, the appellant's bail application was rejected.

2. Before adverting to the facts of the case, this court feels it essential to note down the procedure that has been followed by the Jammu and Kashmir Police while investigating this case. The FIR was registered on 7th April, 2013. On 10th April, 2013, the appellant herein was arrested along with co-accused persons including Tariq Ahmad Shah. While the appellant was in custody as an under trial, the Union Territory government, on 23rd May, 2013, placed the appellant under preventive detention under the Public Safety Act, which order was challenged by the appellant before this Court, which quashed the order of detention vide its judgement dated 29th October, 2013. After the order of detention is quashed, the appellant, as so stated by learned counsel for the appellant, was released by the Jammu and Kashmir Police on his personal bond, notwithstanding the fact that he was still under arrest in the FIR case for offences interalia under the UAPA. Once a person is arrested for the offences under the UAPA, it was only the court of competent jurisdiction which could have granted him bail after observing that the bar under the UAPA to grant bail would not be applicable in the facts and circumstances of the given case.

3. After release of the appellant on his personal bond by the Jammu and Kashmir Police in the year 2013, the appellant remained a free person till 22nd October, 2022, when he was arrested once again when the charge sheet was filed before the Special Court. It is also relevant to mention here that the investigation of the case took nine years for its conclusion. After that, the learned counsel for the appellant has stated that the learned trial court has also framed charges against the appellant and has dismissed the application for grant of bail against which order the present appeal has been preferred.

4. The brief facts of this case are as follows. As per the allegations in the FIR, the appellant along with other co-accused persons used to meet certain under trials when they were brought to court for hearings. These undertrials were also detained under the PSA. It is further alleged that those persons directed the appellant and other co-accused persons to collect money from the people and also influence youngsters to take to the path of terrorism and wage a war against the Union of India.

5. The learned counsel for the Union Territory of the Jammu and Kashmir, while opposing the appeal, has referred to the disclosure memorandum of co-accused Tariq Ahmad Shah, in which, the co-accused states that he along with appellant herein and other co-accused persons, collected money and influenced persons for the purpose of waging war against the Union of India and that he has hidden the money so collected under a bridge and that he is willing to get the same recovered. Pursuant to the disclosure and on the identification of the spot by the co-accused Tariq Ahmad Shah, an amount of Rs. 29000/- was recovered from the place indicated by Tariq Ahmad Shah. Learned counsel for the Union Territory has submitted that this is the prima facie, material against the appellant. It is however not denied that Tariq Ahmad Shah continues to remain a co-accused and has not been made an approver whose statement can be used against the appellant herein. It is also undisputed that there is no disclosure memorandum of the appellant (u/s. 27 of the Evidence Act) and therefore, nothing has been seized at the appellant's behest.

6. We gave ample opportunity to the learned counsel for