Case Note & Summary
The Supreme Court allowed the appeal filed by the National Investigation Agency (NIA) against the Delhi High Court's order granting bail to Zahoor Ahmad Shah Watali, accused No.10 in a terror funding case. The respondent was arrested on 17 August 2017 and charged under Sections 120B, 121, 121A IPC and Sections 13, 16, 17, 18, 20, 38, 39, 40 of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The Designated Court (NIA Special Court) rejected his bail application on 8 June 2018, finding a prima facie case based on witness statements and documents showing he acted as a conduit for funds from Hafiz Saeed, ISI, Pakistan High Commission, and Dubai to Hurriyat leaders for secessionist activities. The High Court reversed this decision on 13 September 2018, granting bail. The Supreme Court held that the High Court failed to apply the correct legal test under Section 43D(5) UAPA, which bars bail if the court, on a prima facie view, finds the accusations true. The Designated Court had correctly applied this bar, and the High Court's order was set aside. The appeal was allowed, and the respondent was directed to surrender to custody.
Headnote
A) Criminal Law - Bail - Unlawful Activities (Prevention) Act, 1967 - Section 43D(5) - Bar on bail - Prima facie case - The respondent, accused of terror funding and conspiracy to wage war against India, was denied bail by the Designated Court which found a prima facie case based on statements of witnesses and documents showing receipt and routing of funds from terrorist sources. The High Court granted bail, but the Supreme Court held that the High Court erred in not applying the correct test under Section 43D(5) and reversed the order. Held that the bar under Section 43D(5) applies when the court, on a prima facie view, finds the accusations to be true, and the High Court's approach was contrary to law (Paras 1-10). B) Criminal Law - Bail - Unlawful Activities (Prevention) Act, 1967 - Section 43D(5) - Scope of judicial review - The Supreme Court clarified that the proviso to Section 43D(5) imposes a restriction on the power to grant bail if the court, on a prima facie consideration of the material, forms an opinion that the accusations are prima facie true. The High Court's reasoning that the material did not establish a prima facie case was erroneous as it substituted its own view for that of the Designated Court without considering the bar. Held that the High Court's order granting bail was unsustainable (Paras 5-10).
Issue of Consideration
Whether the High Court was justified in granting bail to the respondent (Accused No.10) despite the bar under Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967, when the Designated Court had found a prima facie case against him based on material on record.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court order dated 13 September 2018, and directed the respondent to surrender to custody forthwith. The bail granted by the High Court was cancelled.
Law Points
- Bail under Unlawful Activities (Prevention) Act
- 1967
- Section 43D(5) bar
- Prima facie case
- Terror funding
- Hawala transactions
- Conspiracy to wage war against India
