In my college days way back in 1993, I always mistook dacoits for terrorists but my best friend Sageer Khan clarified all my doubts. He said that, “An ordinary criminal like a dacoit or rapist or robber or murderer or any other ordinary criminal never goes to Pakistan or any other foreign country for getting training on how to commit dacoity or rape or robbery or murder but a terrorist always go and get such training to commit terror acts. Not stopping here , he gets all type of financial and other kind of aid from abroad to perpetrate direct attack on the very identity of our nation as a whole. Ordinary criminals attack and affect adversely either one or few persons but in case of terrorists things are quite different because terrorists don’t attack just one or few individuals rather they attack and affect adversely our nation as a whole whom they want to destroy completely . A terrorist always declares war against the nation but an ordinary criminal never does so. An ordinary criminal like a rapist or a dacoit will never attack our nuclear installations by which our entire nation can be wiped away but terrorists always place our nuclear installations on their hit list as they are a part of a proxy war waged by some of our neighbouring countries like Pakistan and it is a fact that if they are able to execute their evil design , our entire nation can be eliminated in one go ! It also cannot be denied that a terrorist always gets all types of aid from foreign countries but an ordinary criminal gets no such help to rape or murder or any other crime. An ordinary criminal will never attack national symbols like Parliament, Red Fort, Supreme Court but terrorists always dream of attacking such places and sometimes have been able to partially attack them also. What is however most intriguing is that our Indian politicians overlook everything and find nothing wrong in holding regular talks with them only and in passing time and again resolutions in their favour and not for ordinary criminals. An enemy soldier during war attack our army soldiers but terrorists are worse than them as they rarely attack men in uniform and always enjoy attacking innocent people especially pilgrims to holy shrines as they are trained by enemy nation and still many of our leaders plead mercy for them for an act which is worse than war. Do they still deserve mercy? Killers of our former PM Rajiv Gandhiji not hanged even two years after he was most brutally blown to pieces! Only one crime is worse than terrorism and that is conversion because it is dodne without firing a single bullet and causes partition as happened in 1947 with undivided India!”
It is most refreshing and most reassuring to learn that the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Zahoor Ahmad Peer vs National Investigation Agency in Crl.A 439/2024 that was reserved on 24 January, 2025 and then finally pronounced on 18.02.2025 has while underscoring that harbouring terrorists is a serious offence under UAPA has said that such an act creates “safe havens” for terrorists and provides them a “veil of secrecy” which endangers the life and security of the citizens. We need to note that a Division Bench of Delhi High Court comprising of Hon’ble Ms Justice Pratibha M Singh and Hon’ble Mr Justice Amit Sharma said clearly that harbouring terrorists leads to disturbing society in general and legitimizes such unlawful activity if left unchecked. No denying it!
Most significantly, before stating anything else, it must be stated that what constitutes the cornerstone of this notable judgment is encapsulated in para 40 postulating that, “Harbouring of terrorists may not be seen to be a serious offence, especially when it is claimed that the same is under duress or coercion. However, a deeper analysis would reveal that harbouring is not an innocent act. It is an act or a series of acts which leads to creation of ‘Safe Havens’ for terrorists thereby endangering the safety and security of citizens. Persons who harbour terrorists lend support to such organisations like LeT and provide them a ‘veil of Secrecy’, thereby temporarily integrating them into society, only to let them strike at opportune moments. Harbouring also leads to disturbing society in general and legitimises such unlawful activity, if left unchecked. Providing of food and shelter with a safe place to stay to persons associated with terrorist organisations, encourages terrorism over a long period.”
Equally significant is that it is rightly propounded in para 41 that, “Thus, harbouring of terrorists has been treated as a serious offence under the UAPA under Section 19, which can be punished with minimum three years which can extend to life imprisonment.”
At the very outset, this notable judgment authored by Hon’ble Mr Justice Amit Sharma for a Division Bench of the Delhi High Court comprising of himself and Hon’ble Ms Justice Pratibha M Singh sets the ball in motion by first and foremost putting forth in para 1 that, “The present appeal filed by the appellant under Section 21(4) of the National Investigation Agency Act, 2008 (hereinafter “NIA Act”) seeks the following prayers:
A. Set aside the order dated 06.02.2024 passed by the Ld. Additional Sessions Judge — 03 / Ld. Special Court (NIA) — New Delhi, Patiala House Courts, Delhi in NIA Case No. 1/2017 titled ‘National Investigation Agency vs. Bahadur Ali & Ors.’; emanating from RC – 11/2016/NIA/DLI dated 27.07.2016, registered by PS NIA, New Delhi Branch, and consequently pass directions to release the Appellant on regular bail in the captioned case, on such terms and conditions as this Hon’ble Court may deem fit; and /or
B. Pass any other order(s) as deemed fit in the facts and circumstances of this case.”
As we see, the Division Bench then disclosing the purpose of filing appeal states in para 2 that, “The appeal has been filed assailing the impugned order dated 06.02.2024 passed by the learned ASJ-03/Special Court (NIA), Patiala House Courts, Delhi in NIA Case No.1/2017 arising out of RC – 11/2016/NIA /DLI under Sections 18/20/38 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter “UAPA”), Section 14 of the Foreigners Act, 1946 (hereinafter “Foreigners Act”) and Section 32 of the Indian Wireless and Telegraphy Act, 1933 (hereinafter “Wireless Act”) registered at P.S. NIA whereby, the bail application of the Appellant was dismissed by the learned Trial Court.”
Briefly stated, the Division Bench while elaborating on facts of the case envisages in para 3 that, “Brief facts which are necessary for the disposal of the present appeal are as follows:
i. It is alleged that the present case relates to a conspiracy hatched by the Lashkar-e-Taiba (hereinafter “LeT”), a proscribed terrorist organization, based in Pakistan, to commit terror attacks in India. As a part of the said conspiracy one Bahadur Ali @Saifullah Mansoor (hereinafter “co-accused no.1”) along with his two associates Abu Saad and Abu Darda illegally infiltrated into Indian territory (J&K) by crossing the LoC on intervening night of 12.06.2016 and 13.06.2016. Based on reliable sources on 25.07.2016 J&K Police and army conducted a joint search operation in village Yahama, Tehsil Langate (Handwara), District Kupwara (J&K) and arrested co-accused no.1. Thereafter FIR No. 50/2016 dated 25.07.2016 under Section 14 Foreigners Act and Section 32 of the Wireless Act was filed at P.S. Qalamabad, Handwara (J&K).
ii. Subsequently, in compliance with the order No. 11011/20/2016- IS.IV, dated 27.07.2016, issued by the Government of India (Ministry of Home Affairs), under Section 6(5) read with Section 8 of the NIA Act, the investigation of case FIR No. 50/2016 was taken over by the NIA and present FIR was registered.
iii. During the investigation of the present case the appellant was arrested on 19.09.2017 and has been in judicial custody since then. It alleged that the present Appellant had direct links with co-accused no.1 and had provided him food and shelter during his stay in village Yahama (J&K). Further two protected witnesses have also stated the role of the present appellant and Nazir Ahmed Peer (hereinafter “co-accused no.5”).
iv. It is alleged that the grid reference noted by the co-accused no.1 in his diary is very close to the house of the present appellant in Yahama (J&K). Further during the course of investigation several photographs were shown to co-accused no.1 in the presence of independent witnesses, and out of the photographs shown to co-accused no.1 he recognized the present appellant and co-accused no.5.
v. Based on the aforesaid investigation and the evidence on record a supplementary chargesheet dated 17.03.2018 was filed before the learned Trial Court qua the appellant and other co-accused persons. Vide order dated 19.02.2021 charges were framed by the learned Trial Court qua the appellant and other co-accused persons.
vi. It is pertinent to note that co-accused no.1 in the present case was convicted on a plea of guilt by the learned Trial Court by vide judgment dated 22.03.2021 for the offences punishable under Sections 120-B of the IPC read with Sections 17/18/20/38 of the UAPA and Section 121-A and 489(C) of the IPC, Section 9B of the Explosives Act, 1884, Section 4 of the Explosives Substances Act, 1908, Section 7 and Section 10 read with Section 25 of the Arms Act, Section 14 of the Foreigners Act and Section 6(1A) of the Wireless Act.
vii. The prosecution to establish its case against the present applicant examined the first witness before the learned Trial Court on 25.08.2022 and since then a total of 35 witnesses have been examined till the date of filing this appeal.”
It is worth noting that the Bench notes in para 39 that, “In the present case, what has to be examined is (1) whether accused no.1 was staying in the village of the Appellant, (2) whether that stay was arranged by the Appellant, (3) whether accused no.1 was a terrorist and that the (4) appellant knew that he was a terrorist. The following facts are therefore relevant:
39.1. That the co-accused no.1 was staying at the village of the present appellant at a location which has come on record by way of the statement of the protected witness PW-Y as well as the statement of co-accused no.1 recorded before the learned Trial Court. It is also matter of record, that accused no.1 was apprehended from the village of the appellant.
39.2 That the stay of accused no.1 at the appellant’s village was arranged by the present appellant and co-accused no. 5 has again been brought on record by the testimony of protected witness PW-Y who is yet to be examined.
39.3 Co-accused no.1 in his statement has himself stated the fact that he was a terrorist and a member of LeT and had infiltrated into India to carry out the activities of LeT.
39.4 Now the fact that Bahadur Ali @Saifullah Mansoor was a terrorist was in the knowledge of the appellant has also come on record by way of testimony of protected witness PW-Y. Even coaccused no.1 in his statement has clearly stated that he had introduced himself as Saifullah from Pakistan and the residents of the said area would be well aware about Pakistani infiltrators coming into India to carry out terrorist activities. Further, it has come on record that coaccused no.1 i.e Bahadur Ali was heavily armed and AK-47 assault rifle, ammunition, hand grenades, wireless set with antenna, map sheets, matrix sheets, grenade launcher and night vision device (Seizure Memo dated 25.07.2016, D-8) which were recovered at his instance. Thus, prima facie, the present appellant knew that coaccused no.1 was a terrorist.
39.5 The statement given by co-accused no.1 is also corroborated by the fact that two of his associates namely Abu Saad and Abu Darda, who had infiltrated into India alongwith him were killed in an encounter during a search operation conducted by the Army and J&K police on 14.02.2017.
39.6 It is pertinent to note that the present appellant alongwith coaccused no. 5 had moved an application pleading guilty to the charges framed and on 31.03.2022, separate statements of the appellant and co-accused no.5 were recorded by the learned Trial Court. In the order dated 31.03.2022, it has been recorded that in their statements they have stated that their only fault was that they have provided food and shelter to co-accused no.1 i.e Bahadur Ali @Saifullah Mansoor on gun point. Considering the fact that the said plea was not voluntary, the learned Special Judge rejected the same. The fact that whether the shelter given to co-accused no.1 was under duress or voluntary is a matter of trial. However, the fact remains that this statement also corroborates the evidence placed on record by the NIA with respect to co-accused no. 1 being provided food and shelter by the present appellant.”
Do note, the Division Bench notes in para 42 that, “The Appellant has been in judicial custody since 19.09.2017 and a period of more than 7 years has passed and as per the appellant out of a total of 100 plus witnesses only 35 have been examined. However, the learned SPP for the NIA submitted that they only intend to examine 12 witnesses out of the total witnesses cited by the prosecution.”
It is worth paying attention that the Division Bench points out in para 43 that, “The Hon’ble Supreme Court in Sheikh Javed Iqbal (supra) has held that even in case of interpretation of a stringent penal statute, the Constitutional Court has to lean in favour of the accused in case of long incarceration. However, it has been also observed that in the given facts of a particular case, the Constitutional Court may decline the grant of bail.”
Be it noted, the Division Bench notes in para 44 that, “In the considered opinion of this Court, co-accused no.1 was a Pakistani national and infiltrated into India with arms and ammunition to conduct a terrorist act. The present appellant, as per the evidence at this stage, continued to harbour him.”
It would be instructive to note that the Division Bench notes in para 45 that, “Although, in the present case, the appellant has not been shown to have been involved in any other similar incident in the past of harbouring a terrorist. However, the fact is that the assistance to the co-accused no.1 in the present case was not a single instance as recorded in the statement of protected witness PW-Y as well as in the statement of co-accused no.1, the present appellant along with the co- accused no. 5 continued to support him. This Court cannot ignore the aforesaid evidence which have been placed on record and in these circumstances, the satisfaction as required under Section 43D (5) of the UAPA cannot be arrived at. In the considered opinion of this Court the accusation made in the present FIR and the report under Section 173 Cr.P.C. is prima facie true. So far as, the trial is concerned, out of 110 witnesses, 35 witnesses have already been examined. The learned SPP had stated that only 11-12 witnesses are to be now examined as co-accused no.1 has already pleaded guilty and therefore, there is no requirement to examine all the witnesses.”
In addition, the Division Bench then directs in para 46 that, “In these circumstances, it is directed that the learned Trial Court shall conduct day to day trial and complete the same within a period of 4 months from today. In case, for any reason, if the Trial is not completed within a period of 6 months, the appellant will be at liberty to file fresh application for bail before the learned Trial Court, which shall be decided in accordance with law.”
Further, the Division Bench then directs in para 47 that, “The appeal is dismissed with the aforesaid direction.”
For clarity, the Division Bench clarifies in para 48 that, “Needless to state, nothing mentioned hereinabove is an opinion on the merits of the case and any observations made are only for the purpose of the present appeal.”
Finally, the Bench then concludes in para 51 that, “Copy of the judgment be sent to the concerned learned Trial Court for necessary information and compliance.”
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