Delhi High Court Grants Bail to One Son of Hizb-ul-Mujahideen Chief, Denies to Another in Terror Funding Case

New Delhi — In a significant ruling on the interplay between national security laws and the fundamental right to a speedy trial, the Delhi High Court has granted bail to one son of Hizb-ul-Mujahideen chief Syed Salahuddin while denying it to another in a long-pending terror funding case. A division bench of Justice Navin Chawla and Justice Shalinder Kaur differentiated the roles of the two brothers, Syed Ahmad Shakeel and Shahid Yusuf, underscoring that prolonged incarceration can be a ground for bail under the stringent Unlawful Activities (Prevention) Act (UAPA), but the gravity of the allegations remains a critical factor.

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Background of the Case

The appeals arose from a 2011 case initiated by the Delhi Police Special Cell, later transferred to the National Investigation Agency (NIA). The investigation uncovered a conspiracy to channel funds from Pakistan to Jammu & Kashmir via hawala networks to finance terrorist and secessionist activities.

The appellants, Syed Ahmad Shakeel and Shahid Yusuf, are sons of Mohammad Yousuf Shah, also known as Syed Salahuddin, the self-styled supreme commander of the proscribed terrorist organization Hizb-ul-Mujahideen. The NIA alleged that both brothers were part of a larger conspiracy, receiving funds from Hizb-ul-Mujahideen operative Aijaz Ahmad Bhat at the behest of their father.

Syed Ahmad Shakeel was accused of receiving approximately ₹2.74 lakhs in six installments and having unexplained cash deposits of ₹4.15 lakhs.

Shahid Yusuf was accused of receiving around ₹4.40 lakhs in nine installments, being in contact with key hawala operators, and having previously travelled to Dubai on a passport with a falsified parental identity.

Both had been in custody for nearly seven years, and their bail applications were rejected by the Special NIA Court, leading to the present appeals.

Arguments Before the High Court

Appellants' Counsel, Mr. Jawahar Raja, argued:

- Violation of Speedy Trial: The prolonged incarceration of nearly seven years for Shakeel and over seven for Yusuf, with only 32 out of 201 prosecution witnesses examined, violates their fundamental right under Article 21 of the Constitution.

- Lack of Prima Facie Case: The prosecution failed to show any direct link between the received funds and a specific terrorist act. The mere receipt of money, especially from a relative, does not automatically constitute an offence under UAPA.

- Parity: Other co-accused in the case, who faced more serious charges, had already been sentenced to lesser periods of imprisonment after pleading guilty.

NIA's Counsel, ASG Mr. Vikramjit Banerjee, contended:

- Grave Offences: The case involves a transnational conspiracy to fund terrorism, directly impacting national security.

- Strict Bail Conditions under UAPA: Section 43D(5) of the UAPA creates a statutory bar on bail where there are reasonable grounds to believe the accusations are prima facie true.

- Strong Evidence: The NIA has evidence including financial records from Western Union, confessional statements, call detail records, and seized documents linking the appellants to the terror funding network.

- Flight Risk: Shahid Yusuf’s alleged use and destruction of a passport with a false identity makes him a flight risk.

Court's Analysis: Balancing Liberty and Security

The High Court meticulously analyzed the stringent bail conditions under Section 43D(5) of the UAPA, referencing landmark Supreme Court judgments like NIA v. Zahoor Ahmed Shah Watali and Union of India v. K.A. Najeeb . The bench noted the legal principle that while the UAPA imposes a high threshold for bail, it does not completely efface the constitutional right to a speedy trial.

In a key observation, the court stated:

"Section 43D(5) of the UAPA does not take away the power of the Constitutional Courts to grant bail, especially when an accused has been in jail for a long period and there is no likelihood of the trial concluding soon... However, the grant of bail ultimately depends on the specific facts and circumstances of each case."

Decision and Final Orders

Applying this legal framework, the court delivered a split verdict for the two brothers based on their individual roles.

Syed Ahmad Shakeel (Bail Granted): The court found that the "mainstay of the prosecution against the appellant is the receipt of money and not its use for any terrorist activity." Given his prolonged incarceration of nearly seven years and the slow pace of the trial, the bench concluded that his continued detention would not serve the ends of justice. He was granted bail on a personal bond of ₹1 lakh with two sureties and stringent conditions, including surrendering his passport and reporting to the local police station twice a week.

Shahid Yusuf (Bail Denied): The court deemed the allegations against Shahid Yusuf to be "graver than those attributed to the accused A-8 (Shakeel)." The prosecution's material pointed to his direct contact with known members of the terrorist outfit, his alleged travel on a falsified passport, and his communication with a key hawala operator. The court noted:

"The nature of the allegations and the material placed on record prima facie establish the appellant’s involvement in this conspiracy... Moreover, the possibility of the appellant being a flight risk cannot be ruled out."

Finding that a prima facie case was established and considering the national security implications, the court dismissed his appeal and declined to grant bail.

The judgment clarifies that while the right to a speedy trial is a crucial consideration even in UAPA cases, it must be weighed against the gravity of the specific allegations and the strength of the prima facie evidence against the accused.