Mere Association Not Enough to Deny Bail Under UAPA: Jammu & Kashmir High Court Grants Bail in Terror Case - 2024-02-23

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J&K High Court Grants Bail, Affirms Mere Association Insufficient Under UAPA

Jammu , J&K – In a significant ruling, the Jammu & Kashmir High Court has granted bail to Baseerat -ul-Ain, an accused charged under the Unlawful Activities (Prevention) Act (UAPA). Justice [Judge's name not explicitly mentioned, so omitted] presiding over the Division Bench, overturned a lower court’s decision, emphasizing that mere association with an accused, without evidence of direct involvement in terrorist activities, cannot justify denying bail, even under stringent laws like the UAPA.

Case Overview: Allegations and Previous Bail Cancellation

The case stems from FIR No. 16/2021, initially registered with Police Station Gangyal and later taken over by the National Investigation Agency (NIA) as RC No. 01/2021/NIA/JMU, dated 02.03.2021. Baseerat -ul-Ain, wife of the primary accused Hidayat Ullah Malik , was implicated in a terror case involving Lashkar -e-Mustafa (LeM), an offshoot of a proscribed terrorist organization. She was charged under Sections 18 & 19 of the UAPA.

Initially, the trial court had granted bail to Baseerat -ul-Ain in January 2022, but it was subsequently cancelled in July 2022 after charges were framed. An appeal against this cancellation led the High Court to direct the trial court to reconsider the bail application, leading to the impugned order of June 12, 2023, which again dismissed her bail plea. This dismissal was then challenged in the current appeal before the High Court.

Arguments Presented: Association vs. Complicity

Senior Counsel Mrs. Surinder Kour, representing Baseerat -ul-Ain, argued that the initial bail cancellation was unwarranted without compelling reasons. She contended that the allegations against her client, even if accepted at face value, were insufficient to deny bail. The prosecution's case largely rested on Baseerat -ul-Ain's presence with her husband, Hidayat Ullah Malik , at various locations, which the defense argued was natural given their marital relationship.

Conversely, Mr. Vishal Sharma, representing the NIA, asserted the appellant’s complicity in the terror case, claiming prima facie evidence and highlighting her alleged role. He even disputed the validity of the marriage document, suggesting it was a tactic to evade legal consequences.

Court's Observations: Focus on Direct Evidence and Liberty

The High Court clarified that it would not delve into the marital status dispute. Crucially, the court underscored that framing of charges under UAPA Sections 18 & 19 alone is not grounds to reject bail if a prima facie case for bail exists.

The judgment highlighted that the core allegation against Baseerat -ul-Ain was her stay with Hidayat Ullah Malik at various places, including hotels and rented accommodations, where arms and ammunition were recovered. However, the court noted:

"The investigation against the appellant has not moved beyond the aforesaid allegation of the appellant having stayed with the accused Hidayat Ullah Malik at different places. The mere stay of the appellant with Hidayat Ullah Malik will amount to appellant in league with Hidayat Ullah Malik for his alleged activities or harboring him is a matter of trial."

The court further reasoned that her escape from the vehicle when police approached, another point raised by the prosecution, was also insufficient to deny bail at this stage, requiring explanation and proof during the trial. The court emphasized the importance of personal liberty, even under stringent laws:

"At the same time the liberty to the person cannot be denied only for the reason that the person is stated to be involved in offence which is serious in nature."

Reliance on Supreme Court Precedents

The High Court Bench relied on several Supreme Court judgments to support its decision, including:

Union of India vs. K.A. Najeeb (2021): Affirmed the constitutional courts' power to grant bail despite statutory restrictions like Section 43(D)(5) of the UAPA.

Sudesh Kedia vs. Union of India (2021): The Apex Court granted bail in a UAPA case, emphasizing the need to consider individual circumstances.

Vernon vs. The State of Maharashtra and Anr. (2023): Reinforced that the seriousness of allegations alone is not sufficient to deny bail.

Bail Granted: Conditions and Implications

Ultimately, the High Court allowed the appeal, setting aside the trial court’s order and granting bail to Baseerat -ul-Ain. The bail is subject to her furnishing a personal bond and surety bond of Rs. 1 lakh each and several conditions, including:

Not tampering with evidence or contacting witnesses.

Providing her mobile number and whereabouts to the NIA.

Regular court appearances.

Depositing her passport.

This judgment underscores the principle that even under stringent anti-terror laws, bail cannot be denied solely based on association without concrete evidence of direct involvement in unlawful activities. It reaffirms the judiciary's role in safeguarding personal liberty while acknowledging national security concerns.

Case Citation: CrlA(D) No. 18/2023 ( Baseerat -ul-Ain vs. National Investigation Agency)