1

IN THE COURT OF
SPECIAL JUDGE (DESIGNATED COURT UNDER NIA) ANANTNAG
File No.
Date of Institution
Date of order
________________________________________________________________________
In the case of :-
1. Asif Nisar Malik
S/O Nisar Ahmad Malik
2. Aqib Hussain Waza
S/O Mohammad Hussain Waza.R/O Arwani Bijbeheara
3. Burhan-ud-din Malik
S/O Mohammad Amin Malik
Residents of Arwani Bijbehara.

(Applicants/accused)
(Through Adv. Aijaz Ahmad Katoo )
Versus

U.T through Police Station Bijbehara

(Through: Mr.Mushtaq Ahmad Ld APP
________________________________________________________________________
In the matter of :-
Application for grant of bail in favour of applicants/accused involved
FIR No.26/2020 for the offences u/s 13 ULA (P) Act registered with
Police Station Bijbehara
________________________________________________________
Coram Mr, Javaid Aalam
JO Code: (00100)
__________________________________________________________
ORDER

1. The instant bail application has been moved for release of the accused
on bail on the grounds that the accused persons are innocent and have
not committed any offence. It has been further averred that the
accused persons have been arrested by the respondent and have been
falsely implicated in FIR No. 26/2020 under section 13 ULA(P) Act of
Police Station Bijbehara besides the applicants are still in custody. It has
been further averred that in the above titled case the charge sheet has
been submitted by the prosecution before this court, besides the trial is
pending before this court wherein the charge has been framed and
most of the witnesses have been examined by this court. It has been
further averred that all the witnesses examined so far have not
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supported the prosecution case, besides the statements of the

prosecution witnesses recorded in the above titled case have created
big dents in the prosecution case and yet the prosecution has not been
able to establish the guilt of above mentioned accused persons beyond
reasonable doubt. It has been further averred that the offence under
section 13 ULAP Act is punishable up to seven years in maximum while
the offences falling under part (b) are punishable up to five years in
maximum hence keeping the nature of the offence as well as
punishment prescribed which by no stretch of imagination can be
attribed as rigorous punishment, however the accused persons are
already in prison from more than 26 months. It has been further
averred that the accused persons are peace loving citizen of the soil
and have deep roots in their communities, hence the chances of their
remaining absconding from the process of law and are existent, besides
the accused persons are ready to submit any sort of surety/security in
case the accused persons are released on bail. Besides other grounds
mentioned in the application applicant has sought grant of bail in his
favour.
2. On presentation of the application, police concerned was directed to
submit report and also prosecution was directed to file objections.
Police report as well as prosecution objections are on record.
3. Perusal of police report would reveal that on 03.03.2020 police station
Bijbehara received a docket to the extent that during patrolling at
Padshahi bagh three persons were noticed in suspected circumstances
on seeing the police the three persons tried to escape from the spot but
they were arrested and put to search. During search posters of Banned
Terrorist group HM were recovered. During search process 18 posters
were recovered from the accused. The accused were going to paste the
posters in order to affect the sovergnity and integrity of the India. The
accused were also found instigating the youth in joining the militant
ranks.
4. On this report FIR was lodged and investigation was set in motion.
During the course of investigation posters were seized. Site map of the
occurrence was prepared. Statements of witnesses were recorded and
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accused were found to be involved for the commission of offence under

section 13 ULA(P) Act and were accordingly arrested. After completion
of investigation charge sheet was laid before court for trial against the
accused.
5. Prosecution has resisted the application on the grounds that accused
are involved in heinous offence which is not only serious in nature but
against the society at large. It has been further averred that this court
has to come strongly with iron hands against elements including
accused who by their acts have weakened the country and the fear
they have created in the society and activities of anti national
committed by accused does not deserve a bail at this stage. It has been
further averred that the accused person is admitted to bail there is
every livelihood that they may flee from justice and may thwart the
process of law and therefore the application merits outright dismissal
and custody of accused person is required very much for investigation.
Finally prayed that application may be rejected in the interest of justice.
6. Heard the learned counsel for the petitioner as well as Ld. APP perused
the material placed on record.
7. Learned counsel for the accused/ applicant submitted that the
involvement of the accused in the crime imputed to them has been
manipulated by the police. The allegations leveled against the accused
are baseless and without any reason. The accused are not connected
with any activity, which are illegal, anti-national or anti-social as alleged
by the police authorities. It is also argued that the accused have not
committed any offence which carries the punishment of imprisonment
for life or death. He further argued that the accused have been booked
in false case and they have not committed any heinous offence. So far
evidence recorded by the prosecution before court none of the
prosecution witnesses have supported the prosecution case. He
submitted that all the witnesses are police personnel and without
corroboration the statement of official witnesses by the independent
witness, the statement cannot be relied upon. He further submitted that
no doubt official witnesses have stated that posters came to be
recovered from the possession of accused but investigating officer has
 4

failed to investigate the matter with regard to source of posters and the
person who has handed over the posters to the accused for allegedly
pasting at different places. He further submitted that holding of posters
by the accused cannot restrict them to seek bail in their favour for the
purpose of preparing defence during trial. At the last Ld. Counsel
submitted that accused deserves concession of bail.
8. On the other hand Ld APP has argued that accused are involved in
heinous offence as they have been indulging the youth in anti national
activities by spreading the anti national posters and also instigating the
youth for joining the terrorist activities. The trial of the case is going on
and prosecution is recording evidence smoothly and in case accused
are released at this stage, there is every apprehension that they may
win the remaining witnesses and there is also apprehension that they
may flee from the clutches of law thereby thwart the process of trial. As
such application merits rejection.
9. On the question of granting or disallowing the bail, law has been laid
down by the Hon’ble High Court of J&K in case titled Balwan Singh V/S
State of J&K 2004 (3) JK Judgment 606, it was held by the Hon’ble High
Court that :-
“That apart, the considerations which normally weigh
with the Court in granting bail in non-bailable offences,
are the nature and seriousness of the offence; the
character of the evidence; circumstances which are
peculiar to the accused; a reasonable possibility of the
presence of accused not being secured at the trail;
reasonable apprehension of the witnesses being
tampered with; the larger interest of the public or the
State and other similar factors which may be relevant in
the facts and circumstances of the case. The
discretionary jurisdiction of the Court should be exercised
carefully and cautiously by balancing rights of the
accused and interest of society. To refuse bail, it is not
necessary that there should be evidence, which would
practically justify a conviction. The accused is not entitled
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to be released if there appear reasonable grounds for

believing that he has been guilty of an offence of the
specified kind. The gravity of the offence involved in case
of petitioner is likely to induce him to avoid the course of
justice, and must weigh with the Court when considering
the question of bail.”

15 The above principles are required to be kept in mind while

exercising the power for grant of bail, court has only to go into
limited question as to whether prima facie offences are
established against the applicant/accused or not. It cannot go
into evidentiary value credibility or reliability of the statement of
witnesses recorded u/s 161 Cr.P.C as well as before court while
examining bail plea of the accused and circumstances on which
crime is alleged to have been committed is also to be examined.
I am fortified with the case law reported in case titled State of
UP through CBI v/s Umermani Tripati reported in 2005(8)
SCC.

16. It is settled that matter is to be considered in application for bail

or refusal that whether,

1. there is prima facie reasonable ground to believe

that accused has committed offence
2. nature and gravity of the charge,
3. Severity of the punishment in the event of
conviction,
4. danger of the accused absconding or fleeing if
released on bail,
5. character, behavior means position and standing of
the accused,
6. likelihood of the evidence being repeated’
7. reasonable apprehension of the witnesses being
tempered with and
8. danger of course of justice being thwarted by grant
of bail.

17. This Court is conscious of the discussions to be made with

reference to grant or otherwise of the bail to an accused involved
in any offence. At this stage, there is no occasion for this Court to
return any finding on the evidence recorded by the Prosecution
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but, at the same time, this Court can also not lose sight of the
cardinal principle of scanning and perusing the evidence for the
purpose of gathering the involvement or otherwise of the
accused. The principles with reference to grant of bail, which is a
concession to be exercised by the Courts, are well settled,
therefore, on the basis of the pleadings of the parties and
scrutinization of the evidence on record, this Court is of the
considered opinion that the accused/ applicants herein deserves
the concession of grant of bail. However, the concession so
granted shall not form an impediment in the way of the
Prosecution for establishing its case against the accused/
applicants herein in the Court of law.
18. Undoubtly the accused are involved in offence u/s 13 ULAP Act. It
is well settled that under the relevant bail provisions a person is
not entitled to bail in non bailable offence where it appear that
there is reasonable ground for believing that a person has been
guilty of offence punishable with death sentence or life
imprisonment. It has been held in the case reported in 2004 SC
titled Kalyan Chander Sarkar v/s Rajesh Raanjan @ Papu Yadev
that :-
10 “Law in regard to grant or refusal of bail is very well
settled. Court granting bail should exercise its discretion
in judicious manner and not a matter of course. Though
at the stage of grant of bail a detailed examination of the
evidence and elaborate documentation of merit of the
case need not be undertaken. There is no indication in
such orders the reasons for prima facie concluding why
bail was being granted particularly where accused is
charged of heinous and serious offence of murder. In
order to devoid of such reasons would suffer from non
application of mind.
11 In the present case accused/petitioner is alleged to be involved
for the offence u/s 13 ULAP Act. Ld counsel for the petitioner
sought bail on the ground that accused have been implicated in
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the present case on a false grounds. On the question of granting

or disallowing the bail, law has been laid down by our Hon’ble
High Court in case titled Sanjay Sharma V/S State of J&K 2003
Part II SLJ 388. Relevant portion of the judgment is reproduced
herein below:-
12 “The jurisdiction to grant bail has to be exercised on the
basis of well settled principles having regard to the
circumstances of each case and not in an arbitrary
manner. While granting the bail, the court has keep in
mind the nature of accusations, the nature of evidence in
support thereof. Severity of the punishment which
conviction will entail, the character behavior means and
standing of the accused, circumstances which are
peculiar to the accused, reasonable possibility of securing
the presence of accused at the trial, reasonable
apprehension of the witness being tempered with, the
larger interest of the public or state and other similar
considerations. It is also to be kept in mind that for the
purpose of granting bail, legislature has used words
“reasonable ground for believing’ instead of ‘evidence’
which clearly envisages that court dealing with the grant
of bail can also satisfy it as to whether there is genuine
case against the accused and the prosecution is able to
produce prima facie evidence in support of the charge. It
is however, not expected at this stage to have the
evidence establishing the guilt of the accused beyond
reasonable debut. Of course the reasons must be
recorded but without discussion of merits and demerits of
the application” It has been further held by the Hon’ble
High Court that” It is trite that many other consideration
which the court has to take into account for deciding that
the bail should be granted for non-bailable offence which
the nature and gravity of the offence”
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13 To refuse bail, it is not necessary that there should be evidence,

which would practically justify a conviction. The accused are not
entitled to be released if there appear reasonable grounds for
believing that they have been guilty of an offence of the
specified kind. The gravity of the offence involved in case of
petitioners is likely to induce them to avoid the course of justice,
and must weigh with the Court when considering the question of
bail. Nature of charge is vital factor and nature of offence is also
pertinent, punishment to which parties liable, if convicted or
conviction is confirmed also bear upon the issues. It would not be
in the interest of justice to touch the merits of the case to dilate
upon the grounds urged and submission made by the Ld counsel
for the petitioners during the course of his arguments for
enlargement of the petitioners on bail. This is the matter which
can be gone into only whole evidence is recorded and its
appreciation and estimation on proper stage.
14 I am also fortified with the case law titled Bhim Singh vs Union of
India reported in 2014 5 Law Herald (SC) 3559 wherein in
computing the period of detention for granting bail the period of
detention passed due to delay in proceeding caused by the
accused shall be excluded. It has been further held that:-
“Section 436A- Period of detention, a person has during
the period of investigation, inquiry or trial under the code
of an offence under an law (not being an offence for
which the punishment of death has been specified as one
of the punishments under that law ) undergone detention
for a period of extending up to one half of the maximum
period of imp risonment specified for that offence under
that law, he shall be released by the Court on his
personal bond with or without sureties. In computing the
period of detention for granting bail the period of
detention passed due to delay in proceedings caused by
the accused shall be excluded. Having given thoughtful
consideration to the legislature policy engrafted in
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Section 436A and large number of under trail prisoners

housed in the prisons. Court is of the considered view
that some order deserves to be passed by the Court so
that the under trial prisoners do not continue to be
detained in prison beyond the maximum period provided
Under Sec. 436 A. Court direct that jurisdictional
Magistrate/Chief Judicial Magistrate/Sessions Judge shall
hold one sitting in a week in each jai/ prison for two
months commencing for the purpose of effective
implementation of 436 A of Code of Criminal procedure.”
15 I have also gone through the case laws referred by the Ld
counsel for the petitioner repported in Criminal Appeal No.487 of
2022 Bava Bahrudeen @ Mannai Bava Appellant vs. Union of
India rep by Inspector of Police, National Investigation Agency,
Chennai. Respondent , bail was granted to the accused in the
similar situated offence. Para 13 of the judgment is reproduced
herein below :-
“13. As far as the offences alleged against the appellant,
though there is a mandatory provision for imposing a
sentence of imprisonment, if found guilty, there is no
prescription of minimum https://www.mhc.tn.gov.in/judis
17 punishment of imprisonment and the maximum
punishment prescribed is imprisonment of 5 years or with
fine or with both. The Association to which the appellant
belongs is also not a proscribed organization or deemed
to be a terrorist organization. As indicated above, Section
13 of Unlawful Activities Prevention Act, 1967 does not
fall within Chapter IV or VI of the Act requiring recording
of satisfaction as contemplated by sub-sections (5) and
(6) of Section 43D of the Act. The appellant has been in
custody for more than 300 days. Taking into
consideration the stage of the case and the number of
witnesses, there is also no likelihood of the trial being
completed at the earliest. Therefore, this court is of the
 10

opinion that the appellant has made out a case for grant
of bail.”
16 I also lay my hands on the case law titled BORSHAHSRI
BURAGOHAIN @ NANG BORSHASRI BURAGOHAIN D/O SRI AJIT
BURAGOHAIN, R/O VILL- BANANI KATARIKHAM GARAMUR GAON,
P.O.-KAWOIMARI, P.S.-TEOK, DIST- JORHAT, ASSAM, PIN-785683
VERSUS THE STATE OF ASSAM REPRESENTED BY THE PUBLIC
PROSECUTOR, ASSAM. Relevant portion of the judgment is
reproduced herein below :-
“I have examined the accused petitioner’s case
in the light of Article 19(1) (a) [freedom of speech and
expression] and 19(2) of the Constitution of India
[reasonable restrictions] as well as the definition of
“unlawful activity” provided in Section 2(o) of the
Unlawful Activities (Prevention) Act, 1967. A perusal of
the contents of the relevant Facebook post, which is in
the form of one poetic line, it is revealed that the accused
petitioner, who is a college student, expressed her
feeling without reference to any organisation. On scrutiny
of the pros and cons of the evidence so far collected by
the investigating officer in the case and having regard to
the submissions made by the learned counsel for both the
sides as stated above as well as the length of detention,
this Court is of the opinion that further continuation of
detention of the accused petitioner may not be required
in the interest of the ongoing investigation”.
17 In another case vide No. CRM-M-41771-2020 Date of decision:
21.12.2021 Deep Kaur @ Kulvir Kaur ... Petitioner Versus State of
Punjab .. Respondent passed by Punjab and Haryana High court.
It has been held that :-
“The allegations against the petitioner are that she had
posted about 'referendum-2020' on her facebook account
and there is stated to be an audio recording of the
petitioner being in conversation with co-accused. Its
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authenticity and evidentiary value would be determined

at the trial. There is no reference to any act of violence
(overt) which was actually committed by any of the
accused in the instant case or that any individual had
been harmed in the instant case. The petitioner is a lady
with three minor children, one of whom is 3 of 5 ----------
Deep Kaur @ Kulvir Kaur vs State Of Punjab on 21
December, 2021 Indian Kanoon -
http://indiankanoon.org/doc/30249142/ 2 about one year
and nine months old and is lodged with her in jail. The
petitioner is in custody for over two years and three
months. Challan has been filed but there is no likelihood
of the trial being concluded soon. In the case of Union of
India versus K.A. Najeeb (supra), the Supreme Court has
held that long custody would be an essential factor while
granting bail under the UAPA. Article 21 of the
Constitution of India provides right to speedy trial and
long period of incarceration would be a good ground to
grant bail to an under-trial for an offence punishable
under the UAPA. It has also been held that the embargo
under Section 43-D of the UAPA would not negate the
powers of the Court to give effect to Article 21 of the
Constitution of India. The relevant extract of the
judgement is reproduced hereunder:- "It is thus clear to
us that the presence of statutory restrictions like Section
43D (5) of UAPA per se does not oust the ability of
Constitutional Courts to grant bail on grounds of violation
of Part III of the Constitution. Whereas at commencement
of proceedings, the Courts are expected to appreciate the
legislative policy against grant of bail but the rigours of
such provisions will melt down where there is no
likelihood of trial being completed within a reasonable
time and the period of incarceration already undergone
has exceeded a substantial part of the prescribed
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sentence. Such an approach would safeguard against the

possibility of provisions like Section 43D (5) of UAPA
being used as the sole metric for denial of bail or for
wholesale breach of constitutional right to speedy trial.
xxxxxxxxxxxx Instead, Section 43-D (5) of UAPA merely
provides another possible ground for the competent
Court to refuse bail, in addition to the well-settled
considerations like gravity of the offence, 4 of 5 ----------
possibility of tampering with evidence, influencing the
witnesses or chance of the accused evading the trial by
absconsion etc." In view of the above, the petition is
allowed and the petitioner is ordered to be released on
regular bail on her furnishing requisite bonds to the
satisfaction of the trial Court/Duty Magistrate concerned.
18 While dealing with the application for grant of bail there should
be sufficient reasons to indicate in the order for prima facie
concluding as to why bail should be granted to the accused when
the accused is charged with serious offence. The purpose of
refusing are granting bail is to ensure the presence of accused
during trial and to further ensure free and fair trial which may be
initiated by intimidation of the witnesses by the accused if set at
large during the course of trial.
19 It is settled position law that real question is whether there are
reasonable grounds for believing that a person guilty of offence
depends upon but when evidence is offered a prosecution to
prove the charge against her while reaching such a conclusion
the court must weigh the nature and character of the evidence
against him. In this view of the matter. I do agree with the
argument of Ld. Counsel for the accused/applicants that
investigating officer has failed to brought forward the source of
posters and also without involving or joining independent witness
the statement of official witnesses cannot be fully relied upon for
the purpose of discretion of bail. I am fortified with the case law
reported in SLJ 2014 Titled Haji Mohd Jaffer v/s state of J&K page
 13

360. Revelant para’s 10 and 11 are reproduced here in below

those are apropos:-
20 10. Grant or refusal of bail in non bailable offences is
discretion of the court but this discretionary jurisdiction
is to be exercised with great care and not casually and in
cavalier manner. Order passed by the bail court must
expressly indicate reasons for granting or refusing bail. A
reference to facts and evidence proposed/recorded is
inevitable but care must be taken to safe guard against
prejudicting the case at the time of trial. It must be
paramount in the mind of a judge dealing with a bail
application, particularly where an accused is alleged to
have omitted serious offence (s), that he is discharging
the solemn duty of balancing the sancity of individual
liberty enshrined under the Constitution on one hand an
interest of the society and public loath against crime on
the other.
21 11. Scrutiny of evidence needs to be done keeping in
mind the distinction between the standard to be adopted
for evaluating the evidence for proving the charge and
that for examining the evidence for limited purpose of
drawing prima facie opinion for releasing the accused on
bail. There is a category of offences, like one under
section 302 RPC, in which section 497 (1) Cr.P.C imposes
complete bar against bail. In such cases if needs to be
determined by the bail court whether the evidence
recorded at the trial or that proposed to be recorded
would lead one to believe that accused is guilty of the
offence punishable with death or imprisonment for life or
not.”
22 In the present case accused is stated to deep roots in the society
and are ready to abide by any of the condition which may be
imposed on them and as such without touching the merits of the
case application is allowed and the accused are admitted to
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interim bail up to 30.09.2022 on furnishing bail bonds to the tune

of Rs.2,00,000/- each with one surety of like amount subject to
the following terms and conditions:
1. The accused shall not leave the jurisdiction of this court, without
prior permission of this court.
2. The accused shall not tamper, with prosecution witnesses, in
any manner, or, otherwise, jump over the concession of bail.
3. The accused shall remain present before court for the purpose
of trial.
4. The accused shall not repeat the offence, as allegedly
committed by him in the instant case
5. That the accused is restrained from using social media directly
or indirectly till further orders from this court.
In violation of the any of the condition/s the bail bonds
shall be liable to forfeiture. It may be noted that the
observations made in this order are limited to the extent of bail
and shall not affect the merits of the case. Put up on
30.09.2022.
Announced:
08.09.2022 (Javaid Aalam)
Special judge, (Designated under NIA),
Anantnag
 15

IN THE COURT OF
SPECIAL JUDGE (DESIGNATED COURT UNDER NIA) ANANTNAG

In the case of :-
1. Asif Nisar Malik
S/O Nisar Ahmad Malik
2. Burhan-ud-din Malik
S/O Mohammad Amin Malik
Residents of Arwani Bijbehara.
(Applicants/accused)
(Through Adv. Aijaz Ahmad Katoo )
Versus
U.T through Police Station Bijbehara
(Through: Mr.Mushtaq Ahmad Ld APP
_________________________________________________________
In the matter of :-
Application for grant of bail in favour of applicants/accused involved
FIR No.26/2020 for the offences u/s 13 ULA (P) Act registered with
Police Station Bijbehara
________________________________________________________
The Superintendent
District Jail Poonch

Whereas, by virtue of the order dated today the 05 th day of

September 2022, petitioners/accused named above has been admitted to
interim bail till 30.09.2022 subject to furnishing bond to the tune of Rs.
2,00,000/- each as also surety in the like amount by them. Same stands
furnished, accepted and attested by this court.
You are as such directed to release the above named
petitioners-accused from the custody after obtaining bail, surety and personal
bond in the amount of Rs 2,00,000/- each provided that they are not involved
 16

in any other case or offence. The bail shall be subject to the following
conditions:-
1. The accused shall not leave the jurisdiction of this court, without
prior permission of this court.
2. The accused shall not tamper, with prosecution witnesses, in
any manner, or, otherwise, jump over the concession of bail.
3. The accused shall attend the trial in the present matter without
any fail till its conclusion.
4. The accused shall not repeat the offence, as allegedly
committed by him in the instant case.
In case, accused/petitioners violate any of the above referred
condition/s, bail bonds furnished shall be liable to forfeiture.

Given under my hand and seal of the court today 5th day of
September 2022

( Javaid Aalam)
Special Judge designated under NIA
Act
Anantnag
 17

IN THE COURT OF
SPECIAL JUDGE (DESIGNATED COURT UNDER NIA) ANANTNAG

In the case of :-
Aqib Hussain Waza
S/O Mohammad Hussain Waza. Arwani Bijbeheara
(Applicant/accused)
(Through Adv. Aijaz Ahmad Katoo)
Versus
U.T through Police Station Bijbehara
(Through: Mr.Mushtaq Ahmad Ld APP
_________________________________________________________
In the matter of :-
Application for grant of bail in favour of applicant/accused involved FIR
No.26/2020 for the offences u/s 13 ULA (P) Act registered with Police
Station Bijbehara.
________________________________________________________
The Superintendent
District Jail Anantnag

Whereas, by virtue of the order dated today the 05 th day of

September 2022, petitioner/accused named above has been admitted to
interim bail till 30.09.2022 subject to furnishing bond to the tune of Rs.
2,00,000/- as also surety in the like amount by him. Same stands furnished,
accepted and attested by this court.
You are as such directed to release the above named petitioner-
accused from the custody after obtaining bail, surety and personal bond in
the amount of Rs 2,00,000/- provided that he is not involved in any other
case or offence. The bail shall be subject to the following conditions:-

5. The accused shall not leave the jurisdiction of this court, without
prior permission of this court.
6. The accused shall not tamper, with prosecution witnesses, in
any manner, or, otherwise, jump over the concession of bail.
7. The accused shall attend the trial in the present matter without
any fail till its conclusion.
8. The accused shall not repeat the offence, as allegedly
committed by him in the instant case.

In case, accused/petitioner violate any of the above referred

condition/s, bail bonds furnished shall be liable to forfeiture.

Given under my hand and seal of the court today 5th day of
September 2022

( Javaid Aalam)
Special Judge designated under NIA Act
Anantnag