A.M.KHANWILKAR,J. - (1.) Leave granted.
(2.) The respondent is named as Accused No.10 in the First Information Report dated 30th May, 2017, registered by the Officer­in­charge of Police Station, NIA, Delhi, for offences punishable under Sections 120B , 121 and 121A of the Indian Penal Code (" IPC ") and Sections 13,16,17,18,20,38,39 and 40 of the Unlawful Activities (Prevention) Act, 1967, (for short "the 1967 Act"). The respondent (Accused No.10) filed an application for bail before the District and Sessions Judge, Special Court (NIA), New Delhi, which came to be rejected on 8th June, 2018. That order has been reversed by the High Court of Delhi at New Delhi in Criminal Appeal No.768/2018 vide order dated 13th September, 2018. The High Court directed release of the respondent on bail subject to certain conditions. That decision is the subject matter of this appeal filed by the prosecuting agency ­ the appellant herein.
(3.) The Designated Court opined that there are serious allegations against the respondent Zahoor Ahmad Shah Watali (Accused No.10) of being involved in unlawful acts and terror funding in conspiracy with other accused persons; he had acted as a conduit for transfer of funds received from terrorist Accused No.1 Hafiz Muhammad Saeed, ISI, Pakistan High Commission, New Delhi and also from a source in Dubai, to Hurriyat leaders/secessionists/terrorists; and had helped them in waging war against the Government of India by repeated attacks on security forces and Government establishments and by damaging public property including by burning schools etc. It then noted that the accusation against the respondent (Accused No.10) was of being a part of a larger conspiracy to systematically upturn the establishment to cause secession of J & K from the Union of India. Keeping in mind the special provisions in Section 43D of the 1967 Act and the exposition in Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra and Ors., (1994) 4 SCC 602 Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijjaya and Ors. (1990) 4 SCC 76, Manohar Lal Sharma Vs. Union of India (2017) 11 SCC 783and Jayanta Kumar Ghosh and Ors. Vs. State of Assam and Anr. (2010) 6 Gauhati Law Reports 727, it proceeded to analyse the material on record and observed thus: "7.5 Let me now see whether on the basis of the material on record, allegations against the accused are prima facie made out or not. Mindful of the fact that this is not the stage to examine and analyze the evidence placed on record in detail, let me refer to the same. Allegation against the accused that certain businesses of his, were just a front/ sham for routing of funds received from abroad/ terrorist A­ 1/ High Commission, Pakistan/ Dubai/other sources and that there were, unaccounted financial transactions, is prima facie borne out from statement of the witnesses PW1, PW28 and PW29 and documents including D­202 and D­214. It has also come in the statements of PW38 and PW39, who prepared balance sheets of accused's firms/companies namely Trison Farms and Constructions Pvt. Limited, M/s Trison International, M/s Yasir Enterprises, M/s 3Y, M/s Kashmir Veneer Industries and M/s Three Star, that the accused never produced any supporting documents with respect to remittances received from NZ­International Dubai­ FZC, owned by him; and that he did not even inform about the actual execution of business despite asking of PW39. The fact that the balance sheets of M/s Trison International, M/s 3Y were forcefully got signed from the protected witness PW43 without providing him any document, has come in his statement. It has also come in the statement of PW44 that the audit report of the aforesaid companies were got signed from him without producing books for verification." Again in paragraph 7.8 to 7.10 the Court observed: "7.8 The fact that the accused received money from abroad /A­1, chief of proscribed (terrorist) organization, HCP (High Commission, Pakistan) and others and was passing on the said funds to Hurriyat leaders, is prima facie borne out from D­152 read with statement of PW29 and D­154 (Expert's Report), as per which the signatures of the accused on D­152 were compared with his admitted handwriting and were verified and found to be similar. In view of the same, the Ld. Defence counsel's argument that the said document/ D­152 cannot be looked into at all even to form prima facie opinion, cannot be accepted. Thus, the judgment of Hon'ble Supreme court in Manohar Lal Sharma's Case (Supra), relied upon Ld. Defence counsel is also of no assistance to the accused. 7.9 Further, the association/proximity of Altaf Ahmad Shah @ Fantoosh (A­4), Farooq Ahmad Dar @ Bitta Karate (A­6) with accused, is also prima facie borne out from the statement of protected witness PW48. Accused's links with people who have role in governance of Pakistan and with Hurriyat leaders has also prima facie come on record vide statement of PW52, documents D­3, D­4 (e) etc. and other material on record. 7.10 In view of the above facts and circumstances, the statements of witnesses/material/documents and other material placed on record by NIA, offences as alleged against the accused are prima facie made out. Therefore, in view of the bar under proviso to Section 43D(5) UA(P) Act, the accused's prayer for bail cannot be granted." Further the Court observed: "8.1.1 Ld. Special PP, NIA also submitted that the applicant/accused is an influential person/ business man and has a great clout in the valley, as has come in the statement of PW48. All the witnesses are known to the applicant/ accused. There is every likelihood of the applicant/accused influencing/ intimidating witnesses/ tempering with evidence, in the event of his release even on interim bail." ;