Long Incarceration No Ground for Bail if UAPA Accusation is Prima Facie True; 'Harbouring' is a Serious Offence: Delhi High Court - 2025-09-30

Delhi High Court Denies Bail to Man Accused of Harbouring LeT Terrorist, Cites Prima Facie Case Under UAPA

New Delhi: The Delhi High Court has dismissed a bail plea from Zahoor Ahmad Peer, who has been incarcerated for over seven years on charges of harbouring a Lashkar-e-Taiba (LeT) terrorist. A division bench of Justice Prathiba M. Singh and Justice Amit Sharma ruled that despite the prolonged custody, the stringent conditions for bail under the Unlawful Activities (Prevention) Act, 1967 (UAPA) were not met, as the accusations against him were prima facie true.

The Court, however, directed the trial court to conduct day-to-day proceedings and conclude the trial within four months, granting Peer the liberty to file a fresh bail application if the trial is not completed within six months.

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Background of the Case

The case originates from a larger conspiracy hatched by the Pakistan-based LeT to conduct terror attacks in India. In June 2016, a trained LeT terrorist, Bahadur Ali, illegally infiltrated into Jammu & Kashmir. He was arrested in July 2016, leading to the registration of an FIR which was later taken over by the National Investigation Agency (NIA).

Zahoor Ahmad Peer was arrested on September 19, 2017, for allegedly providing food and shelter to Bahadur Ali in Yahama village, J&K. He was charged under Sections 18 (conspiracy to commit a terrorist act), 19 (punishment for harbouring), and 39 (offence relating to support given to a terrorist organisation) of the UAPA. Bahadur Ali, the main co-accused, pleaded guilty and was sentenced to 10 years of rigorous imprisonment in March 2021.

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Arguments in Court

Appellant's Submissions: Mr. Kartik Venu, counsel for Zahoor Ahmad Peer, argued that his client, a driver by profession, has been in jail for over seven years without conviction, violating his rights under Article 21 of the Constitution. He contended that the alleged act of providing food and shelter was done under coercion and duress, as Bahadur Ali was armed. He further submitted that the role attributed to Peer was minor and did not constitute "harbouring" under the UAPA, especially since the terrorist did not stay at Peer's residence. The prolonged trial, with only 35 of over 100 witnesses examined, was a key ground for seeking bail.

NIA's Submissions: Ms. Shilpa Singh, Special Public Prosecutor for the NIA, vehemently opposed the bail. She argued that Peer was an active Over Ground Worker (OGW) for LeT and had provided crucial support to Bahadur Ali. The NIA presented evidence including:

- Identification of Peer by Bahadur Ali.

- Statements from protected witnesses linking Peer to the terrorist.

- Call Detail Records (CDRs) showing Peer was in contact with Pakistani phone numbers.

- A grid reference found on the terrorist that pointed to a location near Peer's house. The NIA stressed that harbouring is a serious offence that creates "safe havens" for terrorists, endangering national security. The agency also raised concerns that Peer could influence the remaining witnesses if released on bail.

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Court's Analysis and Legal Principles Applied

The High Court meticulously analyzed the evidence to determine if the accusation was "prima facie true" as required by the stringent bail provision under Section 43D(5) of the UAPA . This section bars the grant of bail if the court believes there are reasonable grounds that the accusation is true.

The bench referred to the definition of "harbour" under Section 52A of the Indian Penal Code, which includes supplying a person with shelter, food, money, or assisting them in any way to evade apprehension. The court also cited the Supreme Court's judgment in Kalpnath Rai v. State , which laid down four essential elements for proving the offence of harbouring a terrorist:

1. The person stayed at a particular location.

2. The stay was arranged by the accused.

3. The person being harboured was a terrorist.

4. The accused knew the person was a terrorist.

Applying this test, the Court made the following prima facie observations:

- Co-accused Bahadur Ali, a convicted LeT terrorist, was apprehended from Peer's village.

- Statements from a protected witness (PW-Y) and Bahadur Ali himself indicated that Peer and a co-accused had provided food and arranged a place for him to stay.

- Peer knew Bahadur Ali was a terrorist, as Ali had introduced himself as a member of LeT from Pakistan and was heavily armed.

The court highlighted a crucial piece of evidence from the statement of a protected witness:

"Jihadis are Pakistanis fighting against India for us, for our community and freedom of Kashmir from India, we should support them."

This statement, attributed to Peer and his co-accused, indicated their motive and knowledge.

The bench underscored the gravity of the offence, stating:

"Harbouring of terrorists may not be seen to be a serious offence, especially when it is claimed that the same is under duress or coercion. However, a deeper analysis would reveal that harbouring is not an innocent act. It is an act or a series of acts which leads to creation of ‘Safe Havens’ for terrorists thereby endangering the safety and security of citizens."

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Final Verdict

Given the evidence on record, the Court concluded that it could not arrive at the satisfaction required under Section 43D(5) of the UAPA to grant bail. It held that the accusation against Zahoor Ahmad Peer was prima facie true.

Dismissing the appeal, the Court directed an expedited trial, acknowledging the appellant's long period of incarceration. The trial court has been ordered to complete proceedings within four months.