Long incarceration no ground for bail in terror cases: Delhi HC

The Delhi High Court has said an undertrial's long incarceration cannot be a ground to grant bail in terror cases, which have country-wide implications and the intent to destabilise the country's unity among other things.

A bench of Justices Navin Chawla and Shalinder Kaur made the observation and denied bail to separatist leader Nayeem Ahmad Khan in a terror-funding case involving Lashkar-e-Taiba (LeT) and 26/11 Mumbai attack mastermind Hafiz Saeed.

The accused, who challenged a trial court order against his bail plea, argued the trial was not likely to conclude in near future and to balance the period of custody undergone by him with his fundamental right to liberty, he ought to be granted bail.

"While we are aware that the right of an undertrial to a speedy trial is of paramount consideration, in cases involving terrorist activities which have nation-wide implications and where there is an intention to destabilise the unity of the union of India and to disrupt its law and order, more so, to create terror in the minds of general public, which are also factors that weigh in, the long period of incarceration would not, in itself, be ground enough to enlarge an accused on bail," said the bench's order on April 9.

Hurriyat Conference leader Khan was arrested on July 24, 2017 and is currently in judicial custody.

In the case registered in 2017 under the anti-terror law Unlawful Activities (Prevention) Act, the NIA claimed secessionists entered into a criminal conspiracy to instigate the general public to resort to violence and create a surcharged atmosphere for the propagation of their agenda in the valley.

The court, in its decision, observed prima facie, the accused persons, including Khan, conspired for secession of Jammu and Kashmir from the union of India through terrorist activities, which threatened the unity, integrity and security of the nation, and granting him bail would be detrimental to the security and safety of the public as well as the trial.

The court took note of the documentary evidence, statements of the witnesses and other material found by the prosecution to opine there were reasonable grounds to believe the accusations against Khan to be true, therefore, attracting the limitation on grant of bail under UAPA.

"The evidence prima facie show that the appellant (Khan) was a member of the Hurriyat and the chairman of Jammu and Kashmir National Front and a part of the conspiracy.. It can prima facie be gathered that the appellant was leading the pro-ISIS rally and had attended the Hurriyat meetings wherein directions were given to organise rallies and anti-India demonstrations, to make anti-national speeches and slogans," the court said.

The order observed protected witnesses had also brought out the nexus between the Hurriyat and the appellant and the Pakistan establishment aside from the funding received from Pakistan for organising secessionist activities.

"The main purpose of the appellant was to engage himself to create unrest in Jammu and Kashmir," it added.

The bench noted there was no delay in proceeding with the trial on the prosecution's end and the same had now been fast tracked.

"The prosecution is also conscious of the fundamental right of the appellant to liberty and they have also made efforts to expedite the trial by dropping 92 witnesses. A trial hurried is also detrimental to the accused persons. Nonetheless, the present is not a case where the appellant is in custody where either the charges have not been framed or that the witnesses are not being examined at regular intervals," the court said.