COMMISSIONER OF INCOME TAX vs. SINOCHEM INDIA CO. PVT. LTD.

The charge sheet filed against the Appellant before the trial Court on 18th January, 2018 states that he received money from Hafeez Mohammad Syed („A-1‟), from the Inter Services Intelligence („ISI‟) of Pakistan, the Pakistan High Commission in New Delhi („PHC‟) and also from „a source‟ in Dubai and then remitted money to the leaders of the All Parties Hurriyat Conference („APHC‟), a conglomerate of 26 political/social/ religious organizations whose agenda is to create an atmosphere conducive to the attainment of their goal in Jammu and Kashmir of secession from the Union of India as well as to separatists and stone-pelters.

According to the charge-sheet, the Appellant was acting as a conduit to transfer funds from terrorist organizations operating out of Pakistan and from other sources to India to fuel violence in J&K. As noted by the trial Court, in paragraph 3.1 of the impugned order, the case of the NIA is that the Appellant thus played a crucial role in the funding of terrorist activities.

After filing of the charge-sheet, A-11 and A-12 have been granted regular bail. A-1 and A-2 have not been arrested. All the other accused, including the present Appellant (A-10) are in judicial custody.

As far as the Appellant is concerned, he was arrested on 17th August, 2017 and has been in judicial custody since then. Although in the charge-sheet in

The portion of the charge-sheet that is relevant to the Appellant is from paragraph 17.6 onwards, which titled „funding of secessionist and terrorist activities in Jammu and Kashmir‟. The paragraph begins with the statement “If publicity and propaganda is oxygen for terror groups, terror financing is like its blood.” It proceeds to state: “Terror financing provides funds for recruitment, operationalization of training and training camps, procurement of arms and ammunition, operational cost of planning and resources for terrorist acts, running of underground networks, well-planned stone pelting, school burnings, targeted attacks, provision of legal support for terrorists and over- ground workers facing judicial process, ex-gratia payment for militants killed in terrorist operations, regular payments to the families of terrorists and militants killed or convicted, funds for propaganda to clergy as well as relief measures for civilian population and also in case of natural disasters.

Paragraph 17.6.1 of the charge-sheet is titled „funding from Pakistan‟. It says that the Hurriyat leaders are receiving funds from Pakistan through conduits and also from the PHC directly. According to the NIA, this was substantiated by an incriminating document seized from the house of Ghulam Mohd. Bhatt during search. Ghulam Mohd. Bhatt worked as the

It is further stated in paragraph 17.6.1 (i) that the said document, which is described in the charge-sheet as Document No.132 (a), showed that the Appellant was receiving money from A-1 via ISI, from the PHC and also from a source based in Dubai. It is then asserted that the Appellant was remitting the same to the Hurriyat leaders, as well as separatists and stone- pelters in Jammu and Kashmir. According to the NIA, the said document has been maintained in the regular course of the Appellant‟s business and has been signed by the Appellant himself. It is again asserted that the said document shows that Hurriyat leaders were receiving funds from Pakistan through the officials of the PHC and through the Appellant. It is further stated that the signature of the Appellant has also been verified and as per the expert report his signature on the questioned document matched the specimen handwriting as well as his admitted handwriting.

Paragraph 17.6.1 (ii) of the charge-sheet states that the role of Pakistan for funding secessionist activities also surfaced during the scrutiny of an “unedited version of the audio/video furnished by the office of India Today TV News Channel” wherein A-5 is said to have admitted that “the secessionists and terrorists of the Valley are receiving financial support from Pakistan and would have received approximately Rs.200 crores to organize anti-India protests and agitations after the killing of Burhan Wani, the Commander of HM.” Inter alia it is stated that A-5 admitted to the pivotal role played by the PHC to receive and convey instructions from Pakistan.

Paragraph 17.6.1 (iii) again refers to the same audio/video which purportedly revealed that A-6 (Bitta Karate) likewise admitted that funds were being sent by Pakistan to the secessionists and terrorists in the Kashmir Valley including himself “for organizing forcible closures, anti-India protests and processions and stone-pelting on the security forces.”

Paragraph 17.6.1(iv) of the charge-sheet alleges that the PHC in New Delhi used to organize functions and meetings in New Delhi to which the Hurriyat leaders from Kashmir were invited and they were given instructions and funds on a regular basis. It is further stated: “These funds were given to various allied groups of the APHC and investigations have revealed that a First Secretary level officer of Pakistan High Commission in New Delhi would act as a channel and A-10 Zahoor Ahmed Shah Watali would act as a courier to deliver the funds to the Hurriyat leadership. These funds as explained above were used to foment the secessionist and separatist activities and unrest in the Valley in an organized manner.”

It may be noticed at this stage that in the charge-sheet no one in the PHC is named. It is not asserted that the NIA is unable to proceed against such individual because of any diplomatic immunity or status. Further, except for a reception held at the PHC at New Delhi on 22nd March, 2013, no dates of functions/meetings organized by the PHC in Delhi where the Hurriyat and other separatist leaders were given instructions and funds have been mentioned. The invitation card from the PHC inviting him to the above function is said to have been seized from the house of A-6. It is stated that the investigation “also established that A-4 was in direct contact with the

Paragraph 17.6.2 of the charge sheet is subtitled „Funding from Terrorist Organizations based in Pakistan”. Here it is asserted that the same incriminating document No.132 (a) which was seized from the house of Ghulam Mohd. Bhatt, who worked as Cashier-cum-Accountant with the Appellant, showed that the Appellant received money from A-1 and remitted it to the Hurriyat leaders who were responsible for causing the secession of J&K from the Union of India.

Paragraph 17.6.3 is subtitled “Local donations/ Zakat/ Baitulmal.” It is stated that the Hurriyat has an established network of cadres at districts and local levels. There are district presidents of the Hurriyat and block level leaders who have the responsibility to raise funds through donations during the religious festivals in the month of Ramzan. It is stated that in a well- established system, receipt books are printed and funds are collected from shopkeepers, businessmen, and residents of Kashmir. Money is also collected to become a member of the Tehreek-e-Hurriyat. The selected members are made rukuns and asked to propagate the separatist ideology of the Hurriyat. These rukuns acts as foot soldiers and ensure that bandhs and hartals are successful. They also lead the processions and participate in stone-pelting. It is stated that the Hurriyat leadership appeals to the public to contribute money generously by way of donations for their so called

Paragraph 17.6.4 is subtitled „LoC Trade‟. According to the NIA, the separatists leaders are raising funds through the LoC trade by way of directing Kashmiri traders to do under-invoicing of the goods which were imported through LoC barter trade. Parts of the profits from selling the goods to traders in Delhi is alleged to be shared with Hurriyat leaders and other separatists, which in turn is used for anti-India propaganda for mobilizing the public to organize protests and stone-pelting and to support the families of killed/jailed militants. It is said that there are hawala operators based in Srinagar, New Delhi and other parts of the country.

Specific to the Appellant are the allegations made in Paragraph 17.6.5 of the charge-sheet which is subtitled „Hawala‟. This being the principal allegation against the Appellant, requires to be summarized as under:

Paragraph 17.9 of the charge sheet is sub-titled „CDR Analysis‟. According to the NIA, the CDRs revealed the conduct of the accused persons “with each other with some militants/OGWs (Over Ground Workers) and the hawala conduit” i.e. the Appellant and the other accused. It is asserted that the Appellant was telephonically in contact with A-3, A-4, A-5 and A-6. It is also stated that A-3 to A-12 are in contact with each other either directly or indirectly. The chart showing their inter-linkages is set out as part of the charge-sheet.

Paragraph 17.10 of the charge sheet is sub-titled „Summing Up‟. Paragraph 18 is subtitled „Charge‟. Specific to the Appellant are the allegations in paragraph 18.9 stating: “A-10 is a known hawala dealer and financer and has a number of cases against him which are being investigated by sister investigation agencies.”

The charge-sheet does not set out the details of the other cases against the Appellant being investigated. This Court too has not been shown any

Paragraph 18.10 of the charge sheet refers to the CDR linkages establishing that “A-3 to A-10 are with constant communication with each other and there is a clear meeting of minds of the above accused in hatching the conspiracy with the support of A-1 and A2 and the other secessionist leaders of Hurriyat Conference and other terrorist organizations of Jammu and Kashmir.”

Paragraph 18.13 of the charge-sheet sets out in tabular form the names of the accused and the offences with which they are charged. Paragraph 18.14 refers to sanction having been received by the Ministry of Home Affairs, Government of India on 16th January, 2018 for prosecuting the accused under the UAPA provisions. Paragraph 18.16 states that further investigation will continue under Section 173 (8) of Cr PC.

In its order dated 31st May, 2018 disposing of the said writ petition, the Division Bench of this Court distinguished the decisions in Javed Ahmed Tantray v. Delhi High Court (decision dated 17th September, 2013 in W.P.

The Court then directed as under:

The Division Bench requested the trial Court to “proceed and hear the bail application expeditiously and if possible on day-to-day basis and on conclusion of hearing pass appropriate orders preferably by the end of June, 2018”. Thereafter the case was heard before the learned D&SJ on 4th and 5th June, 2018 and the impugned order was passed on 8th June, 2018.

The trial Court then proceeded to deal with the prayer for interim bail on health grounds and rejected it after noting that he was being provided appropriate medical attention at the jail hospital and at the RML Hospital as well as AIIMS. Nevertheless, the Jail Superintendent was directed to provide proper medical care and treatment to the Appellant as and when requested.

This Court has heard the submissions of Mr Vikas Pahwa, learned Senior Counsel appearing for the Appellant and Mr Sidharth Luthra, learned Senior Counsel appearing for the NIA. The Court has also been taken through the documents which formed part of the record before the trial

Relevant to the present appeal is Section 43-D of the UAPA which modifies the application of certain provisions of the Cr PC in their application to the UAPA. Specific to the question of bail to an accused charged with UAPA offences is Section 43-D (5) of the UAPA which reads as under: “(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

In other words, the proviso to Section 43-D (5) of the UAPA states that an accused shall not be released on bail if the Court “on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are “reasonable grounds for believing that the accusation against such person is prima facie true.” A careful reading of the above proviso indicates that: (i) As opposed to the general criminal law, under the UAPA grant of bail is the exception. If the prosecution either through the case diary or through the charge sheet is able to show „reasonable grounds‟ for believing that the accusation is „prima facie‟ true then the accused person “shall not be released on bail”. (ii) As far as the accused person is concerned, in order to be able to be considered for the grant of bail, he will have to demonstrate that the prosecution has not been able to discharge the above burden viz., that there are reasonable grounds to show that the accusation against him is prima facie true. (iii) For forming such an opinion, what the trial Court will peruse is the case diary „or‟ the charge-sheet under Section 173 Cr PC. At a stage prior to the filing of the charge sheet, the case diary can be looked into by the trial Court to find out about the progress of the investigation and about the material gathered against the accused person. The charge sheet is the culmination of the analysis of the investigation officer (IO) of all the material gathered and reflects his opinion about the guilt of the accused. Although it is argued by Mr Luthra that the trial Court could peruse both the case diary as well as the charge-sheet, the legislative intent is clear that once a charge-sheet

What is „reasonable‟ will of course differ from case to case. The Supreme Court in Hitendra Vishnu Thakur v State of Maharashtra AIR 1994 SC 2623 in the context of the Terrorism and Disruptive Activities Act, 1985 („TADA‟), observed as under: “... Of late, we have come across some cases when the Designated Courts have charge-sheeted and/or convicted an accused person under TADA even though there is not even an iota of evidence from which it could be inferred, even prima facie, let alone conclusively, that the crime was committed with the intention as contemplated by the provisions of TADA, merely on the statement of the investigating agency to the effect that the consequence of the criminal act resulted in causing panic or terror in the society or in a section thereof. Such orders result in the misuse of TADA. The Parliament, through Section 20A of TADA has clearly manifested its intention to treat the offences under TADA seriously in as much as under Section 20A(1), notwithstanding anything contained in the Cr.PC, no information about the commission of an offence under TADA shall even be recorded without the prior approval of the District Superintendent of Police and under Section 20A(2) no court shall take cognizance of any offence under TADA without the previous sanction of the authorities prescribed therein. Section 20A, was thus, introduced in the Act with a view to prevent the abuse of the provisions of TADA.

We would, therefore, at this stage, like to administer a word of caution to the Designated Courts regarding

Likewise in Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Vijaya 1990 Cri LJ 1869, the Supreme Court observed as under:

It is, therefore, the settled legal position that as far as the statutes concerning serious offences inviting grave consequences are invoked, the trial Court will scrutinize the material with extra care. What the trial Court certainly should not do is to proceed “merely on the statements of the investigating agency” because if it does so, it would be acting “merely as a post-office of the investigating agency” and this would do “more harm to meet the challenge arising out of terrorist activities rather than deterring terrorist activities.”

Section 43-D (6) of the UAPA also makes it clear that the restrictions in the proviso to Section 43-D (5) of the UAPA are in addition to the restrictions under the Cr PC or any other law for the time being in force for granting of bail. These restrictions spelt out in Section 438 Cr PC require the criminal Court to consider factors such as: (i) The nature and gravity of the accusation. (ii) The criminal antecedents of the person seeking bail.

The question before the trial Court and before this Court is therefore whether the material gathered by the NIA in the present case could have enabled the trial Court to come to the conclusion that there were reasonable grounds for believing that the accusations against the present Appellant were prima facie true?

In examining the material on record, one feature that stands out is that the statements of several persons that have been recorded by the NIA during the course of its investigation have been referred to as „PWs‟. Mr Luthra clarified that these persons, at this stage, were only „proposed/prospective‟ witnesses and not „prosecution witnesses‟. This fine distinction has to be kept in mind. Statements recorded under Section 161 Cr PC do not constitute admissible evidence. They can only be used to confront the witnesses who subsequently appear at the trial. This has to be kept in view while referring to such statements at this stage.

It may be mentioned at this stage that at serial numbers 279 to 284 are the statements of other protected witnesses: „Romeo‟, „Alpha‟, „Gamma‟, „Pie‟, „Potter‟, „Harry‟ and „xxx‟.

It is not denied that copies of the above statements, including those of „Charlie‟ and „Romeo‟ which are relevant as far as the case against the Appellant is concerned, are kept in a sealed cover but as of date have not been supplied to the Appellant. Mr Luthra stated that the statements of „Charlie‟ and „Romeo‟ were before the learned D&SJ. It, however, does not appear that the learned D&SJ actually perused them. The impugned order makes no reference to the said statements.

Paragraph 7.9 of the impugned order, extracted hereinbefore, refers to statements of “PW-52, documents D-3, D-4, D-4(e) etc” and “other material on record”. The Court is unable to read the expression “other material on record” used by the trial Court as including the above statements under

Mr. Luthra then referred to Section 17 of the NIA Act and Section 44 of the UAPA, both of which are identically worded. Section 17 NIA Act reads as under: “17. Protection of witnesses.

Both under Section 17 NIA Act and Section 44 of the UAPA, the prosecution can apply to the Court to hold proceedings „in camera‟ on the ground that the life of the witness is in danger. What is permitted to be kept „secret‟ by the Court is “the identity and address of such a witness”. It can permit avoiding the mention of the “names and addresses of the witnesses” in the orders, judgments or any record of the case accessible to the public. The trial Court can issue directions “for securing that the identity and address of the witness are not disclosed”.

It is not possible to read Section 17 of the NIA Act or Section 44 of the UAPA as an exception to Section 207 read with Section 173 Cr PC which mandates that an accused shall be supplied copies of the police report and other documents relied upon by the prosecution in the charge-sheet “without delay” and “free of cost”. Section 207 Cr PC reads as under: “207. Supply to the accused a copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

The first proviso to Section 207 Cr PC makes an exception only in respect of the documents mentioned in Section 207 (iii), which in turn refers to the statements recorded under Section 161 (3) Cr PC. There is no exception to providing „confessions and statements, if any, recorded under Section 164 Cr PC‟ which has been mandated in terms of Section 207 (4) Cr PC. Reference may also be made to Section 173(6) Cr PC which again refers to the statement under Section 161 Cr PC, which is mentioned in Section 173 (5) (b) and it is only when the police officer is of the view that any part

It was then submitted that it is possible that in the present case, because of the nature of their contents, the entire statement under Section 164 Cr PC may have to be withheld. However, the Court finds that as far as the present case is concerned, it is not the case of the NIA that the entire statement is required to be withheld. It requires to be noted that on 12th April, 2018, while the bail application was still being heard, an application was filed

The Court has not been shown any provision either under the NIA Act or the UAPA that is an exception to the mandatory requirement under Section 207 read with Section 173 Cr PC that the police report shall be furnished without delay to the accused along with the copies of the documents relied upon by the prosecution including statements under Section 161 Cr PC, and importantly, statements under Section 164 Cr PC.

The Court also finds that in the charge-sheet filed before the trial Court, by the NIA on 18th January, 2018, which has been referred to extensively in the present order, there is no reference to the above statements under Section 164 Cr PC. If indeed the statements of „Charlie‟ and „Romeo‟ recorded under Section 164 Cr PC on 15th December 2017 and 21st December, 2017 respectively were critical for the trial Court to form an opinion on the culpability of the Appellant for the offences with which he has been accused, it is unusual for the IO not to have referred to them.

Mr Luthra referred to the decision of the Supreme Court in K. Veeraswami v. Union of India (1991) 3 SCC 655 where an observation was made by the Supreme Court that it is not necessary for the charge-sheet itself to contain detailed analysis of the evidence and that the trial Court had to

In any event, the statements under Section 164 Cr PC which form part of the documents relied upon by the prosecution in support of the charge sheet cannot be kept back from an accused and the accused be expected to discharge the onerous burden of demonstrating, for the purposes of bail in terms of the proviso to Section 43 D (5) UAPA, that the prosecution has not shown the existence of reasonable grounds for believing that the accusations against him are prima facie true.

The net result of the above discussion is that with the statements under Section 164 Cr PC purportedly recorded of „Charlie‟ and „Romeo‟ not being provided to the Appellant, not having been discussed in the charge-sheet, and with those statements not having been examined by the trial Court while passing the impugned order, the prosecution i.e. the NIA cannot rely on such statements in this Court to oppose the grant of bail to the Appellant.

The Court clarifies that the question whether the said statements of „Charlie‟ and „Romeo‟ under Section 164 Cr PC should be kept out of

Certain features of the above document have not been disputed by the NIA. The first is that it was a loose sheet of paper which was found amongst several other documents by the NIA when it undertook a search of the residential premises of Ghulam Mohammad Bhatt, the accountant of the Appellant. It was not recovered from the residence or place of business of the Appellant. Secondly, while all other documents pertaining to the accounts of the Appellant and his various business entities were on A-4 sized plain paper, this document was a single green sheet legal sized paper. Thirdly, while other documents did not contain the signature of the Appellant, the Appellant‟s signature was found on the right hand bottom corner of the above document.

Fourthly, it is a document not typed on any letterhead of the Appellant or any of his business entities. The Appellant‟s connection with the document is sought to be drawn by the NIA because of his signature on the right hand bottom. The document is not shown to be part of the books of accounts maintained by the Appellant in the regular course of business.

In this context, a reference may be made to the decision of the Supreme Court in Manohar Lal Sharma (supra) which was in the context of the Income Tax Act, 1961, and where the Supreme Court was dealing with the question of admissibility of the loose sheets purporting to be financial accounts, that were recovered pursuant to raids undertaken at various locations. After referring to the decision in CBI v V.C. Shukla (1998) 3 SCC 410, the Supreme Court observed in Manohar Lal Sharma (supra) as

The person who could explain what is written in Document No. 132 (a) was Ghulam Mohammad Bhatt from whom it was recovered. The document is stated to have been seized on 16th August, 2017 from his house. He was summoned thereafter on 30th August, 2017 i.e. two weeks after the seizure. Mr Bhatt purportedly referred to the single loose green sheet recovered from his premises. He stated that the accounts of the Appellant and his entities were “maintained and updated by him”.

The next statement of Mr Bhatt was recorded on 1st November, 2017. While he was asked to explain the several financial statements recovered, he was not asked about the above Document No. 132 (a). Mr Bhatt had joined the investigation in June 2017, prior to the raid at his residential premises. If

While the genuineness and the evidentiary value of Document 132 (a) is yet to be established by the NIA at the trial, since this one document is being relied upon by the NIA as being central to its case against the Appellant, it is but inevitable that the trial Court and now this Court has to discuss it in some detail for the purpose of deciding whether the Appellant can be released on bail.

The question that arises is whether there is anything to show with reference to each of the dates mentioned in the above Document No. 132 (a) that the figures shown against the entry on each date (purporting to be specific amounts of money) was in fact received by the Appellant in his personal accounts or in the accounts of any of his entities. Although the case of the NIA is that the money has been received, there is no document or statement, which forms part of the charge sheet, which in fact indicates this.

The above document is also relied upon by the NIA as providing proof of the linkages of the Appellant to A-1, through the entry dated 3rd May, 2015 and with the Pakistan High Commission (PHC) through the entries dated 15th and 20th October, 2016. Yet none from the PHC has been named, much less statement of such a person been recorded to confirm that those figures represented money that was received from the PHC.

The case of the NIA in the charge sheet is that the same document is also

Mr. Luthra urged that the signature of the Appellant in the right hand bottom corner of the document has been confirmed by the handwriting expert to match the specimen signature of the Appellant. In reply it was pointed out by Mr. Vikas Pahwa, learned Senior counsel for the Appellant, that the mere fact that the Appellant‟s signature appeared on the document did not mean that he had in fact signed the document in acceptance of the truth of its contents. According to him, it is too early to speculate whether the Appellant when he signed the paper, if at all, put his signature on a blank green legal size paper which may be have then been used for legal purposes for an affidavit etc.

It is indeed too early in the case to speculate whether the Appellant in fact signed the document after it was typed out and whether his signature amounts to accepting the truth of its contents or for that matter whether the contents of the document in question constitute conclusive proof of what the NIA alleges the document to be.

In the circumstances, the Court is not satisfied that a sheet of paper containing typed entries and in loose form, not shown to form part of the

Beginning with the last referred document, [D-4(e)], it is actually a bunch of documents, the first of which is a letter dated 28th June, 2016, written by the Prime Minister of Pakistan Mr Mohammad Nawaz Sharif to the Appellant thanking him for the bouquet sent to him with wishes for his good health and well being.

Then there is a letter dated 20th November, 2007 from the President of the Azad Jammu and Kashmir, Chambers of Commerce and Industry, addressed to the Appellant, appointing the Appellant as an Honorary Trade Consultant at Srinagar. It notes that Pakistan and India had

The other documents reflect the correspondence carried out in the regular course of business between the Appellant‟s business entities and other entities including the Al-Shafi Group of companies, headquartered at Lahore. A business invitation was extended to the Appellant on 7th February, 2014 by Mohd. Tariq Shafi, the director of Al-Shafi Group of companies to visit them for business negotiations. There is a letter of the same date addressed by Mr. Mohd. Tariq Shafi to the PHC in New Delhi for grant of Pakistan Business Visa to the Appellant.

It must be noticed at this stage that the NIA does not dispute that the Appellant is a leading businessman in Kashmir. He runs a conglomerate of business entities and has been active in the context of the Indo-Pakistan trade. Nothing has been shown to this Court from the entire bunch of documents which would suggest that these trade activities were geared toward funding of terrorist activities, as alleged in the charge-sheet.

Turning next to the statements of Mr. Mustaq Ahmad Mir and Mr. Shabbir Ahmad Mir, it requires to be stated, at the risk of repetition, that

The above documents do not enable this Court to prima facie conclude, as the trial Court has in paragraph 7.8 of the impugned order, that the Appellant received money from A-1 or PHC or others and was passing on the said funds to the Hurriyat leaders for funding terrorist activities and stone pelting.

The statement of the „protected witness‟, referred to by the trial Court as W-48, about the Appellant‟s proximity with A-4 and A-6 has been perused. It is not supported by any other statement or material on record. It cannot be construed as material that would enable the prosecution to show that the accusation against the appellant about his funding terrorist activities is prima facie true.

Turing to the transaction of lease involving Mr. Naval Kishore Kapoor, it is explained on behalf of the Appellant that only individuals domiciled in Kashmir can hold properties there. There was no declaration of „ownership‟

The entire discussion by the trial Court of the material forming part of the charge sheet is contained in three short paragraphs i.e. in paragraphs 7.8, 7.9 and 7.10 of the impugned order. It is cryptic. The following observations made by the High Court of Andhra Pradesh in Davender Gupta v. National Investigating Agency (2014) SCC-Online AP 192 are relevant here: “...till the truth comes out, it is always better to keep the fingers crossed, and to respect the age-old principle, that an accused cannot be equated to a convict, even before the trial is conducted and the judgment is rendered. Further, whatever be the considerations in economic offences, even an inadvertent attempt to implicate persons in terrorist related cases, otherwise than on the basis of strong and foolproof evidence would, as an immediate consequence, embolden, if not encourage the real perpetrators.”

As to other requirements of Section 438 Cr PC, nothing has been shown to the Court about the previous criminal involvement of the Appellant in any

The following observations by the Supreme Court in Sanjay Chandra v CBI AIR 2012 SC 830 are relevant in this context: “In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it

In light of the above discussion, this Court holds, for the limited purposes of the present appeal, that there are no reasonable grounds to form an opinion at this stage that the accusations against the Appellant under the UAPA are prima facie true. The Court is also not satisfied at this stage that there is prima facie material to show the involvement of the Appellant in any criminal conspiracy with the other accused justifying the accusations for the offences under Section 120-B IPC or Section 121, 121-A, 124-A IPC. The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities.

It is clarified that the observations of this Court in this order both on facts and law are based on the materials forming part of the charge sheet and are prima facie in nature and for the limited purpose of considering the case of the Appellant for grant of bail. They are not intended to influence the decisions of the trial Court at any stage of the case hereafter.

The appeal is allowed in the above terms.