GURWINDER SINGHversusSTATE OF PUNJAB & ANOTHER

                  [2024] 2 S.C.R. 134 : 2024 INSC 92

                           Gurwinder Singh
                                   v.
                       State of Punjab & Another
                     (Criminal Appeal Nos. 704 of 2024)
                               07 February 2024
             [M.M Sundresh and Aravind Kumar,* JJ.]

                            Issue for Consideration
       Whether the High Court was justified in upholding the order passed
       by the Special Judge, rejecting the application filed u/s. 439 CrPC
       by the appellant seeking regular bail in a case registered under the
       Unlawful Activities (Prevention) Act, 1967 alongwith other charges
       under the Penal Code and the Arms Act.

                                   Headnotes
       Unlawful Activities (Prevention) Act, 1967 – ss. 43D (5), 17,
       18, 19 – Rejection of bail – On facts, charges u/ss. 17, 18, 19
       of the UAP Act, u/ss. 124A, 153A, 153B, 120-B IPC and u/ss.
       25 and 54 of Arms Act against the appellant along with other
       co-accused for raising funds for terrorist act, for conspiracy
       and for organising of terrorist camps – Bail application u/s.
       439 CrPC by the appellant – Rejected by the Special Judge
       as also the High Court – Correctness:
       Held: Material available on record indicates the involvement of the
       appellant in furtherance of terrorist activities backed by members of
       banned terrorist organization involving exchange of large quantum
       of money through different channels which needs to be deciphered
       – In such a scenario if the appellant is released on bail there is
       every likelihood that he would influence the key witnesses of the
       case which might hamper the process of justice – Furthermore,
       mere delay in trial pertaining to grave offences cannot be used
       as a ground to grant bail – Also mere fact that the accused has
       not received any funds or nothing incriminating was recovered
       from his mobile phone does not absolve him of his role in the
       instant crime – Thus, the material on record prima facie indicates
       the complicity of the accused as a part of the conspiracy since
       he was knowingly facilitating the commission of a preparatory act

* Author
[2024] 2 S.C.R.                                                                  135

              Gurwinder Singh v. State of Punjab & Another


     towards the commission of terrorist act u/s. 18 – Bail application
     of the appellant is rejected – Penal Code, 1860 – ss. 124A, 153A,
     153B, 120-B – Arms Act, 1959 – ss. 25 and 54. [Paras 32-34]
     Unlawful Activities (Prevention) Act, 1967 – s. 43D (5) – Scope
     and limitations of bail under :
     Held: s. 43D(5) modifies the application of the general bail provisions
     in respect of offences punishable under Chapter IV and Chapter VI
     of the Act – Discretion of Courts must tilt in favour that bail is the
     rule, jail is the exception unless circumstances justify otherwise
     does not find any place while dealing with bail applications under
     UAP Act – Exercise of the general power to grant bail under the
     UAP Act is severely restrictive in scope – Words used in proviso
     to s. 43D (5) ‘shall not be released’ in contrast with the words as
     found in s. 437(1) CrPC ‘may be released’ suggests the intention
     of the Legislature to make bail, the exception and jail, the rule –
     Thus, the courts are burdened with a sensitive task on hand – In
     dealing with bail applications under UAP Act, the courts are merely
     examining if there is justification to reject bail – ‘Justifications’ must
     be searched from the case diary and the final report submitted
     before the Special Court – Bail must be rejected as a ‘rule’, if
     after hearing the public prosecutor and after perusing the final
     report or Case Diary, the court arrives at a conclusion that there
     are reasonable grounds for believing that the accusations are
     prima facie true – It is only if the test for rejection of bail is not
     satisfied, the courts would proceed to decide the bail application in
     accordance with the ‘tripod test’-flight risk, influencing witnesses,
     tampering with evidence. [Paras 16, 18-20]
     Unlawful Activities (Prevention) Act, 1967 – Bail applications
     – Test for rejection – Guidelines on the approach that Courts
     must partake in – Reiterated. [Para 23]

                                Case Law Cited
           NIA v. Zahoor Ahmad Shah Watali, [2019] 5 SCR 1060:
           (2019) 5 SCC 1 – relied on.
           Union of India v. KA Najeeb, [2021] 1 SCR 443 : (2021)
           3 SCC 713; Devender Gupta v. National Investigating
           Agency : 2014 (2) ALD Cri. 251; Kekhriesatuo Tep and
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             Ors. v. National Investigation Agency [2023] 3 SCR
             523: (2023) 6 SCC 58; Sudesh Kedia v. Union of India
             : (2021) 4 SCC 704- referred to.

                                    List of Acts
       Code of Criminal Procedure, 1973; Penal Code, 1860; Unlawful
       Activities (Prevention)Act, 1967; Arms Act, 1959.

                                 List of Keywords
       Banned terrorist organization “Sikh for Justice”; Further investigation;
       National Investigation Agency; Hawala; Khalistan; Terror activities;
       Separatist movement; ISI handler; Disclosure statement; Bail
       application; Incriminating conversations; Communication Data
       Records; Funding Link with ISI; Voluntary disclosure statement;
       Proscribed Terrorist; Bail jurisprudence; Penal offences; Shall not
       be released; May be released; Standard of ‘strong suspicion’;
       Application for ‘discharge’; Final report or Case Diary; Tripod
       test; Flight risk; Influencing witnesses; Tampering with evidence;
       Rejection of the bail; Raising funds for terrorist organization; Scrutiny
       report; Procurement of weapons; Revenge of the Sacrilege of
       Guru Granth Sahib; Involvement of a terrorist gang; Delay in trial;
       Complicity of the accused; Conspiracy.

                                Case Arising From

       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.704 of
       2024

       From the Judgment and Order dated 24.04.2023 of the High Court of
       Punjab & Haryana at Chandigarh in CRAD No.144 of 2022

                            Appearances for Parties

       Colin Gonsalves, Sr. Adv., Satya Mitra, Ms. Mugdha, Kamran
       Khawaja, Advs. for the Appellant.
       Suryaprakash V Raju, A.S.G., Vivek Jain, DAG, Ajay Pal, Kanu
       Agarwal, Annam Venkatesh, Mayank Pandey, Arvind Kumar
       Sharma, Dr. Reeta Vasishta, Karan Sharma, Rishabh Sharma,
       Advs. for the Respondents.
[2024] 2 S.C.R.                                                      137

             Gurwinder Singh v. State of Punjab & Another



                Judgment / Order of the Supreme Court
                               Judgment
     Aravind Kumar J.
1.   Leave granted.
2.   The present appeal impugns the order dated 24.04.2023 passed by
     the High Court of Punjab and Haryana at Chandigarh in CRA-D No.
     144 of 2022 (O&M) whereby the High Court has upheld the order
     dated 16.12.2021 passed by the Special Judge, NIA Court, SAS
     Nagar, Mohali in an application filed under Section 439 of the Code
     of Criminal Procedure, 1973 (Cr.P.C) filed by the Appellant herein-
     Gurwinder Singh along with other co-accused seeking regular bail
     in NIA Case RC.19/2020/NIA/DLI, registered under Sections 124A,
     153A, 153B, 120-B of the Indian Penal Code, 1860 (IPC), Section(s)
     17, 18, 19 of the Unlawful Activities (Prevention) Act, 1967 (UAP
     Act) and Sections 25 and 54 of the Arms Act, 1959, which came to
     be rejected.
3.   The factual matrix relevant to dispose the present petition are
     summarized as under:
     3.1. On 19.10.2018, Sh. Varinder Kumar, Inspector, CIA Staff,
          received secret information that two persons are hanging
          cloth banners on which “Khalistan Jindabad” and “Khalistan
          Referendum 2020”, was written, at Pillars Kot Mit Singh Flyover,
          Amritsar. The Police team apprehended one Sukhraj Singh @
          Raju and Malkeet Singh @ Meetu on the spot and a case was
          registered vide FIR No.152 dated 19.10.2018 under section(s)
          124A, 153A, 153B and 120B of IPC against both the arrested
          accused. During the course of Investigation, entire module of
          the banned terrorist organization named “Sikh for Justice” was
          busted and other accused persons involved in the said module
          namely, Bikramjit Singh @ Vicky, Manjit Singh @ Manga, Jatinder
          Singh @ Goldy, Harpreet Singh @ Happy, Gurwinder Singh
          @ Gurpreet Singh @ Gopi-the present Appellant, Harmeet
          Singh @ Raju, Roofel @ Raful @ Rahul Gill, Sukhmander
          Singh @ Gopi and Kuldeep Singh @ Kuldip Singh @ Keepa
          were arrested by Punjab Police.
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       3.2. The investigation was completed and final report was presented
            on 16.04.2019 before the Trial Court against eleven accused
            persons under Sections 117, 112, 124A, 153A, 153B, 120-B of
            IPC, Sections 17, 18, 19 of UAP Act and Section 25 of Arms
            Act. On further investigation, the police submitted supplementary
            reports.
       3.3. Due to degree of severity in the charges involved, the
            investigation in the present matter was transferred to the National
            Investigation Agency (NIA), which took over the investigation of
            this case as per the directions of Government of India, Ministry
            of Home Affairs issued vide Order F.No.11011/30/2020/NIA dated
            04.04.2020 and registered the original case as RC.19/2020/
            NIA/DLI dated 05.04.2020. 3rd supplementary chargesheet was
            filed by NIA dated 18.12.2020 and Charges were framed by the
            Learned Special Judge, NIA Punjab on 09.12.2021.
       3.4. The investigation revealed that the accused persons received
            funds through illegal means sent by members of the banned
            terrorist organization “Sikhs For Justice”, those funds were
            channeled through illegal means such as “Hawala” and were
            sent to be used for furthering separatist ideology of demanding
            a separate State for Sikhs popularly called “Khalistan”, and to
            carry out terror activities and other preparatory acts i.e., attempts
            to procure weapons to spread terror in India in furtherance of
            such separatist movement. The investigation further revealed
            the hand of an ISI handler named Javed Khan, to be behind
            the operations of this module busted by Punjab Police and NIA.
       3.5. The prima facie involvement of the present Appellant has
            cropped up in the disclosure statement of the co-accused
            Bikramjit Singh @ Vicky (Accused No. 3) recorded on 09.06.2020
            while he was in the custody of NIA.
       3.6. The said disclosure statement revealed that on 08.07.2018,
            the Appellant herein-Gurwinder Singh accompanied Bikramjit
            Singh (Accused No. 3) and Harpreet Singh @Happy (Accused
            No.7) to Srinagar in a car where they had planned to purchase
            a pistol. There they met Sandeep Singh @ Sana and further
            went to a JK-Li Camp in Srinagar. Sandeep Singh entered the
            Army camp and after half an hour he came out and stated that
            pistol was not available. Then they came back to Gurudwara
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             Gurwinder Singh v. State of Punjab & Another


           Sahib, where Sandeep offered them to purchase RDX instead,
           but they declined and all three returned back to Punjab, where
           Bikramjit Singh (Accused No. 3) was dropped off mid-way at
           Jandialaguru while both, the present Appellant and Harpreet
           Singh @ Happy, returned back to their village in Punjab.
     3.7. The Appellant’s disclosure statement recorded on 12.06.2020
          revealed a similar story as that of Bikramjit Singh. The Appellant
          stated that he and Harpreet Singh were childhood friends. In the
          1st week of July 2018, Harpreet proposed to visit Srinagar for
          Religious Service and asked the Appellant to accompany. The
          Appellant in his disclosure statement further stated that he initially
          denied to go with them however later agreed to accompany
          them when Harpreet Singh continuously insisted him.
     3.8. The trial court vide its order dated 16.12.2023 in CIS No.
          BA/2445/2021 dismissed the Appellant’s bail application under
          Section 439 CrPC on the ground that there were reasonable
          grounds to believe the accusation against the Appellant to be
          true. The said order was impugned by way of an appeal before
          the High Court of Punjab and Haryana and meanwhile on
          10.04.2023, 4th supplementary charge sheet was filed by NIA
          along with the List of witnesses and list of documents.
     3.9. Vide the Impugned order the High Court rejected the grant of
          bail to Appellant on the ground of seriousness of the nature
          of offence and that none of the protected witnesses had been
          examined.
     SUBMISSION ON BEHALF OF THE PARTIES
4.   The Learned Senior Counsel, Mr. Colin Gonsalves, appearing on
     behalf of the Appellant made the following submissions in support
     of the Appellant’s bail application:
5.   Mr. Gonsalves, learned Senior Counsel contended that the Appellant
     has been denied bail by the Hon’ble High Court and the Ld. Special
     Judge by relying upon the disclosure statement of Bikramjit Singh
     alias Vicky and argued that the said disclosure statement cannot be
     used to implicate the present Appellant.
6.   Learned Senior Counsel further raised contentions about the lack of
     scrutiny of the Appellant’s mobile phone, marked as M-4 to indicate
     that the phone number did not belong to the Appellant. He argued
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       that the absence of incriminating conversations in the Communication
       Data Records (CDR) related to the Appellant’s phone supports the
       case for bail. He further contended that the Appellant has been in
       custody since the last Five years facing charges of UAP Act which
       is contrary to the law laid down in KA Najeeb v. Union of India.1
7.     He further submitted that only 19 out of 106 witnesses have been
       examined in the last five-year period. He also drew our attention to
       terror funding chart to demonstrate that the name of the Appellant
       does not find place in the same. Mr. Gonsalves also questioned the
       omission of the alleged main conspirator, Nihal Singh, as an accused,
       emphasizing that the Appellant did not procure any weapons.
8.     He further sought our attention to the 4th supplementary chargesheet,
       aimed at establishing a funding link with ISI, to illustrate the Appellant’s
       exclusion from relevant documentation. Lastly, he stated that out of
       Nine protected witnesses that have been examined, eight have not
       mentioned the name of Appellant. Hence, he prayed to set aside
       the impugned order and grant bail to the Appellant.
9.     Per contra, Mr. Suryaprakash V. Raju, learned Additional Solicitor
       General, on behalf of the Respondent, submitted that there is sufficient
       evidence on record to prove the incriminating role of the Appellant
       and the same is revealed by the statements of Protected witnesses.
10. He further submitted that the Appellant-accused along with co-
    accused Bikarmjit Singh @ Vicky (Accused No. 3) were involved in
    the activities of “Sikhs for Justice”, a banded terrorist organisation,
    whose chief proponent is Gurpatwant Singh Pannu (Accused No. 12)
    and Bikramjit Singh @ Vicky (Accused No. 3) had asked their known
    persons to arrange weapons from Kashmir. In furtherance of their
    activities to procure arms and ammunition, the Appellant-accused
    along with co-accused Bikarmjit Singh @ Vicky and Harpreet Singh
    @ Happy (Accused No. 7) had visited Srinagar.
11. He further submitted that Appellant in his voluntary disclosure
    statement admitted that on gaining knowledge of purpose of visit to
    Srinagar, he voluntarily continued the journey. In fact, the Appellant
    suggested an alternative to the co-accused and advised them to
    procure the weapon from Western Uttar Pradesh.


1    [2021] 1 SCR 443 : (2021) 3 SCC 713
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               Gurwinder Singh v. State of Punjab & Another


12. Further, he submitted that the provisions of section 43D(5) of
    Unlawful Activities (Prevention) Act, 1967 are completely applicable
    in this case and as such the High court has rightly denied bail to
    the Appellant-accused.
13. He also contended that the case is presently under trial and so far
    22 witnesses have been examined. The accused is facing charges
    of grave nature pertaining to crimes that are not attributable to an
    individual but members of a terrorist gang operating at the behest of
    Gurpatwant Singh Pannu (Accused No. 12), a proscribed terrorist.
    If the Appellant is released on bail, there is every likelihood that he
    will influence the key witnesses of the case hampering the process
    of justice. Hence, he prayed that the bail petition should be rejected.
     DISCUSSION AND CONCLUSION
14. We have heard the learned counsel on behalf of both the parties and
    have perused the records of the case. The present case involves
    the charges under the UAP Act along with other charges under the
    IPC and Arms Act therefore, it is apt to consider the bail provision
    envisaged under section 43D of the UAP Act before we delve to
    analyze the facts.
     Bail under UAP Act: Section 43D (5)
15. In the course of oral argument, both sides have laid great
    emphasis on the interpretation of section 43D(5) of the 1967
    Act. We will begin our analysis with a discussion on the scope and
    limitations of bail under Section 43D(5) UAP Act.
     We shall extract Section 43D(5) for easy reference:
           “Section 43D - Modified application of certain provisions
           of the Code
           (1)......
           ................
           (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:
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          Provided that such accused person shall not be
          released on bail or on his own bond 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.
          (6) The restrictions on granting of bail specified in sub-
          section (5) is in addition to the restrictions under the Code
          or any other law for the time being in force on granting
          of bail.
          (7) Notwithstanding anything contained in Sub-sections
          (5) and (6), no bail shall be granted to a person accused
          of an offence punishable under this Act, if he is not an
          Indian citizen and has entered the country unauthorizedly
          or illegally except in very exceptional circumstances and
          for reasons to be recorded in writing.”
16. The source of the power to grant bail in respect of non-bailable
    offences punishable with death or life imprisonment emanates from
    Section 439 CrPC. It can be noticed that Section 43D(5) of the
    UAP Act modifies the application of the general bail provisions in
    respect of offences punishable under Chapter IV and Chapter VI of
    the UAP Act.
17. A bare reading of Sub-section (5) of Section 43D shows that apart
    from the fact that Sub-section (5) bars a Special Court from releasing
    an accused on bail without affording the Public Prosecutor an
    opportunity of being heard on the application seeking release of an
    accused on bail, the proviso to Sub-section (5) of Section 43D puts
    a complete embargo on the powers of the Special Court to release
    an accused on bail. It lays down that if the Court, ‘on perusal of
    the case diary or the report made under Section 173 of the Code
    of Criminal Procedure’, is of the opinion that there are reasonable
    grounds for believing that the accusation, against such person, as
    regards commission of offence or offences under Chapter IV and/or
    Chapter VI of the UAP Act is prima facie true, such accused person
    shall not be released on bail or on his own bond. It is interesting
    to note that there is no analogous provision traceable in any other
    statute to the one found in Section 43D(5) of the UAP Act. In that
    sense, the language of bail limitation adopted therein remains unique
    to the UAP Act.
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                Gurwinder Singh v. State of Punjab & Another


18. The conventional idea in bail jurisprudence vis-à-vis ordinary penal
    offences that the discretion of Courts must tilt in favour of the
    oft-quoted phrase - ‘bail is the rule, jail is the exception’ – unless
    circumstances justify otherwise - does not find any place while dealing
    with bail applications under UAP Act. The ‘exercise’ of the general
    power to grant bail under the UAP Act is severely restrictive in scope.
    The form of the words used in proviso to Section 43D (5)– ‘shall
    not be released’ in contrast with the form of the words as found in
    Section 437(1) CrPC - ‘may be released’ – suggests the intention of
    the Legislature to make bail, the exception and jail, the rule.
19. The courts are, therefore, burdened with a sensitive task on hand. In
    dealing with bail applications under UAP Act, the courts are merely
    examining if there is justification to reject bail. The ‘justifications’
    must be searched from the case diary and the final report submitted
    before the Special Court. The legislature has prescribed a low, ‘prima
    facie’ standard, as a measure of the degree of satisfaction, to be
    recorded by Court when scrutinising the justifications [materials on
    record]. This standard can be contrasted with the standard of ‘strong
    suspicion’, which is used by Courts while hearing applications for
    ‘discharge’. In fact, the Supreme Court in Zahoor Ali Watali2 has
    noticed this difference, where it said:
            “In any case, the degree of satisfaction to be recorded
            by the Court for opining that there are reasonable
            grounds for believing that the accusation against
            the accused is prima facie true, is lighter than the
            degree of satisfaction to be recorded for considering a
            discharge application or framing of charges in relation
            to offences under the 1967 Act.”
20. In this background, the test for rejection of bail is quite plain. Bail
    must be rejected as a ‘rule’, if after hearing the public prosecutor and
    after perusing the final report or Case Diary, the Court arrives at a
    conclusion that there are reasonable grounds for believing that the
    accusations are prima facie true. It is only if the test for rejection of
    bail is not satisfied – that the Courts would proceed to decide the bail
    application in accordance with the ‘tripod test’ (flight risk, influencing
    witnesses, tampering with evidence). This position is made clear by


2   [2019] 5 SCR 1060 : (2019) 5 SCC 1
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       Sub-section (6) of Section 43D, which lays down that the restrictions,
       on granting of bail specified in Sub-section (5), are in addition to the
       restrictions under the Code of Criminal Procedure or any other law
       for the time being in force on grant of bail.
21. On a textual reading of Section 43 D(5) UAP Act, the inquiry that
    a bail court must undertake while deciding bail applications under
    the UAP Act can be summarised in the form of a twin-prong test :
       1)   Whether the test for rejection of the bail is satisfied?
            1.1 Examine if, prima facie, the alleged ‘accusations’ make out
                an offence under Chapter IV or VI of the UAP Act
            1.2 Such examination should be limited to case diary and final
                report submitted under Section 173 CrPC;
       2)   Whether the accused deserves to be enlarged on bail in light
            of the general principles relating to grant of bail under Section
            439 CrPC (‘tripod test’)?
            On a consideration of various factors such as nature of offence,
            length of punishment (if convicted), age, character, status of
            accused etc., the Courts must ask itself :
            2.1 Whether the accused is a flight risk?
            2.2 Whether there is apprehension of the accused tampering
                with the evidence?
            2.3 Whether there is apprehension of accused influencing
                witnesses?
22. The question of entering the ‘second test’ of the inquiry will not
    arise if the ‘first test’ is satisfied. And merely because the first
    test is satisfied, that does not mean however that the accused is
    automatically entitled to bail. The accused will have to show that he
    successfully passes the ‘tripod test’.
       Test for Rejection of Bail: Guidelines as laid down by Supreme
       Court in Watali’s Case
23. In the previous section, based on a textual reading, we have
    discussed the broad inquiry which Courts seized of bail applications
    under Section 43D(5) UAP Act r/w Section 439 CrPC must indulge
    in. Setting out the framework of the law seems rather easy, yet the
    application of it, presents its own complexities. For greater clarity in
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             Gurwinder Singh v. State of Punjab & Another


     the application of the test set out above, it would be helpful to seek
     guidance from binding precedents. In this regard, we need to look no
     further than Watali’s case which has laid down elaborate guidelines
     on the approach that Courts must partake in, in their application of
     the bail limitations under the UAP Act. On a perusal of paragraphs
     23 to 29 and 32, the following 8-point propositions emerge and they
     are summarised as follows:
     ●     Meaning of ‘Prima facie true’ [para 23]: On the face of it,
           the materials must show the complicity of the accused in
           commission of the offence. The materials/evidence must be
           good and sufficient to establish a given fact or chain of facts
           constituting the stated offence, unless rebutted or contradicted
           by other evidence.
     ●     Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet
           and Post-Charges – Compared [para 23]: Once charges
           are framed, it would be safe to assume that a very strong
           suspicion was founded upon the materials before the Court,
           which prompted the Court to form a presumptive opinion as to
           the existence of the factual ingredients constituting the offence
           alleged against the accused, to justify the framing of charge. In
           that situation, the accused may have to undertake an arduous
           task to satisfy the Court that despite the framing of charge, the
           materials presented along with the charge-sheet (report under
           Section 173 CrPC), do not make out reasonable grounds for
           believing that the accusation against him is prima facie true.
           Similar opinion is required to be formed by the Court whilst
           considering the prayer for bail, made after filing of the first report
           made under Section 173 of the Code, as in the present case.
     ●     Reasoning, necessary but no detailed evaluation of
           evidence [para 24]: The exercise to be undertaken by the
           Court at this stage--of giving reasons for grant or non-grant of
           bail--is markedly different from discussing merits or demerits of
           the evidence. The elaborate examination or dissection of the
           evidence is not required to be done at this stage.
     ●     Record a finding on broad probabilities, not based on proof
           beyond doubt [para 24]: “The Court is merely expected to
           record a finding on the basis of broad probabilities regarding
           the involvement of the accused in the commission of the stated
           offence or otherwise.”
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        ●      Duration of the limitation under Section 43D(5) [para 26]:
               The special provision, Section 43-D of the 1967 Act, applies
               right from the stage of registration of FIR for the offences under
               Chapters IV and VI of the 1967 Act until the conclusion of the
               trial thereof.
        ●      Material on record must be analysed as a ‘whole’; no
               piecemeal analysis [para 27]: The totality of the material
               gathered by the investigating agency and presented along
               with the report and including the case diary, is required to be
               reckoned and not by analysing individual pieces of evidence
               or circumstance.
        ●      Contents of documents to be presumed as true [para 27]:
               The Court must look at the contents of the document and take
               such document into account as it is.
        ●      Admissibility of documents relied upon by Prosecution
               cannot be questioned [para 27]: The materials/evidence
               collected by the investigation agency in support of the
               accusation against the accused in the first information report
               must prevail until contradicted and overcome or disproved by
               other evidence…….In any case, the question of discarding the
               document at this stage, on the ground of being inadmissible in
               evidence, is not permissible.
24. It will also be apposite at this juncture to refer to the directions issued
    in Devender Gupta v. National Investigating Agency3 wherein a
    Division Bench of the High Court of Andhra Pradesh strove to strike
    a balance between the mandate under Section 43D on one hand
    and the rights of the accused on the other. It was held as follows:
               “The following instances or circumstances, in our view,
               would provide adequate guidance for the Court to form
               an opinion, as to whether the accusation in such cases
               is “prima facie true”:
               1)      Whether the accused is/are associated with any
                       organization, which is prohibited through an order
                       passed under the provisions of the act;



3      2014 (2) ALD Cri. 251
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            2)      Whether the accused was convicted of the offenses
                    involving such crimes, or terrorist activities, or though
                    acquitted on technical grounds; was held to be
                    associated with terrorist activities;
            3)      Whether any explosive material, of the category used
                    in the commission of the crime, which gave rise to the
                    prosecution; was recovered from, or at the instance
                    of the accused;
            4)      Whether any eye witness or a mechanical
                    device, such as CC camera, had indicated the
                    involvement, or presence of the accused, at or
                    around the scene of occurrence; and
            5)       Whether the accused was/were arrested, soon after
                    the occurrence, on the basis of the information, or
                    clues available with the enforcement or investigating
                    agencies.”
25. In the case of Kekhriesatuo Tep and Ors. v. National Investigation
    Agency4 the Two-Judge Bench (Justice B.R. Gavai & Justice Sanjay
    Karol) while dealing with the bail application for the offence of
    supporting and raising funds for terrorist organization under section
    39 and 40 of the UAP Act relied upon NIA v. Zahoor Ahmad Shah
    Watali5 and observed that:
            “while dealing with the bail petition filed by the accused
            against whom offences under chapter IV and VI of UAPA
            have been made, the court has to consider as to whether
            there are reasonable grounds for believing that the
            accusation against the accused is prima facie true. The
            bench also observed that distinction between the words
            “not guilty” as used in TADA, MCOCA and NDPS Act as
            against the words “prima facie” in the UAPA as held in
            Watali’s Case (supra) to state that a degree of satisfaction
            required in the case of “not guilty” is much stronger than
            the satisfaction required in a case where the words used
            are “prima facie”


4   [2023] 3 SCR 523 : (2023) 6 SCC 58
5   [2019] 5 SCR 1060 : (2019) 5 SCC 1
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26. In the case of Sudesh Kedia v. Union of India6 the Bench of
    Justice Nageswara Rao and Justice S. Ravindra Bhat while dealing
    with a bail application for the offence u/s. 17, 18 and 21 of the UAP
    Act relied upon the principle propounded in Watali’s case (supra)
    and observed that:
            “the expression “prima facie” would mean that the materials/
            evidence collated by the investigating agency in reference
            to the accusation against the accused concerned must
            prevail until contradicted and overcome or disproved by
            other evidence, and on the face of it, shows that complicity
            of such accused in the commission of the stated offence.
            It must be good and sufficient on its face to establish a
            given fact or the chain of facts constituting the stated
            offence, unless rebutted or contradicted.”
27. In the light of these guiding principles, we shall now proceed to decide
    whether the additional limitations found in Section 43D(5) UAP Act
    are attracted in the facts of the present case. In other words, we
    shall inquire if the first test (as set out above), i.e., test for rejection of
    bail, is satisfied. For this purpose, it will, firstly, have to be examined
    whether the allegations/accusations against the Appellants contained
    in charge-sheet documents and case diary, prima facie, disclose the
    commission of an offence Section 17,18 and 19 of the UAP Act.
       Section 17 of the UAP Act states:
            17. Punishment for raising funds for terrorist act.
            —Whoever, in India or in a foreign country, directly or
            indirectly, raises or collects funds or provides funds to
            any person or persons or attempts to provide funds to any
            person or persons, knowing that such funds are likely to be
            used by such person or persons to commit a terrorist act,
            notwithstanding whether such funds were actually used or
            not for commission of such act, shall be punishable with
            imprisonment for a term which shall not be less than five
            years but which may extend to imprisonment for life, and
            shall also be liable to fine.


6   (2021) 4 SCC 704
[2024] 2 S.C.R.                                                             149

             Gurwinder Singh v. State of Punjab & Another


     Section 18 of the UAP Act states:
           18. Punishment for conspiracy, etc.—Whoever conspires
           or attempts to commit, or advocates, abets, advises or
           [incites, directly or knowingly facilitates] the commission of,
           a terrorist act or any act preparatory to the commission of
           a terrorist act, shall be punishable with imprisonment for
           a term which shall not be less than five years but which
           may extend to imprisonment for life, and shall also be
           liable to fine.
     Section 19 of the UAP Act states:
           19. Punishment for harbouring, etc.—Whoever
           voluntarily harbours or conceals, or attempts to harbour
           or conceal any person knowing that such person is a
           terrorist shall be punishable with imprisonment for a term
           which shall not be less than three years but which may
           extend to imprisonment for life, and shall also be liable to
           fine: Provided that this section shall not apply to any case
           in which the harbour or concealment is by the spouse of
           the offender.”
28. Having examined the provisions of law, let us now consider the
    material available on record to ascertain whether the case of the
    Appellant satisfies the tests as mentioned herein above.
29. The Appellant’s counsel contended that the Appellant’s mobile phone
    has not undergone scrutiny, and therefore, no conclusive connection
    to the charged offenses could be established. However, the scrutiny
    report of Bikramjit Singh @ Vicky’s (Accused No. 3) mobile phone,
    marked as M-5 reveals at serial no. 10, that the present Appellant
    was in communication with Accused No.3 multiple times. The Call
    Detail Records (CDRs) unveils a consistent pattern of communication
    between the Appellant and Bikramjit Singh (Accused No.3) even
    prior to their trip to Srinagar for procurement of weapons. Detailed
    scrutiny of the CDRs indicates that the Appellant had engaged in
    communication with Bikramjit Singh (Accused No.3) approximately
    26 times, spanning from June 22, 2018 to October 19, 2018, the
    day of his arrest.
30. The Appellant’s counsel has objected to the denial of bail by the High
    Court and Special Court upon relying on the disclosure statements of
    Bikarmjit Singh @ Vicky (Accused No.3) and the Appellant himself.
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       Accused No.3 in his disclosure statement (Annexure P3) has stated
       that on 08.07.2018, he along with Harpreet Singh @ Happy and
       Gurwinder Singh @ Gurpreet Singh Gopi (the present Appellant)
       went to Srinagar for the purchase of pistol which was sought to
       be used by them to take revenge of the Sacrilege of Guru Granth
       Sahib. Further, the disclosure Statement of the present Appellant
       (Annexure P4) corroborated the disclosure Statement of Accused
       No.3 wherein he stated that he went with Accused No.3 and Harpreet
       Singh @ Happy to Srinagar. Though the present Appellant has taken
       the stance of not knowing the purpose of the visit to Srinagar, in his
       disclosure statement, he has admitted to the fact that he suggested
       both Bikramjit Singh (Accused No.3) and Harpreet Singh (Accused
       No.7) to purchase the weapon from western Uttar Pradesh.
31. The Appellant’s counsel has stated that in the terror funding chart the
    name of the Appellant does not find place. It is pertinent to mention
    that the charges in the present case reveals the involvement of a
    terrorist gang which includes different members recruited for multiple
    roles. Hence, the mere fact that the accused has not received any
    funds or nothing incriminating was recovered from his mobile phone
    does not absolve him of his role in the instant crime.
32. The Appellant’s counsel has relied upon the case of KA Najeeb
    (supra) to back its contention that the appellant has been in jail for
    last five years which is contrary to law laid down in the said case.
    While this argument may appear compelling at first glance, it lacks
    depth and substance. In KA Najeeb’s case this court was confronted
    with a circumstance wherein except the respondent-accused, other
    co-accused had already undergone trial and were sentenced to
    imprisonment of not exceeding eight years therefore this court’s
    decision to consider bail was grounded in the anticipation of the
    impending sentence that the respondent-accused might face upon
    conviction and since the respondent-accused had already served
    portion of the maximum imprisonment i.e., more than five years,
    this court took it as a factor influencing its assessment to grant bail.
    Further, in KA Najeeb’s case the trial of the respondent-accused was
    severed from the other co-accused owing to his absconding and he
    was traced back in 2015 and was being separately tried thereafter
    and the NIA had filed a long list of witnesses that were left to be
    examined with reference to the said accused therefore this court
    was of the view of unlikelihood of completion of trial in near future.
[2024] 2 S.C.R.                                                            151

              Gurwinder Singh v. State of Punjab & Another


     However, in the present case the trial is already under way and 22
     witnesses including the protected witnesses have been examined.
     As already discussed, the material available on record indicates the
     involvement of the appellant in furtherance of terrorist activities backed
     by members of banned terrorist organization involving exchange of
     large quantum of money through different channels which needs
     to be deciphered and therefore in such a scenario if the appellant
     is released on bail there is every likelihood that he will influence
     the key witnesses of the case which might hamper the process of
     justice. Therefore, mere delay in trial pertaining to grave offences
     as one involved in the instant case cannot be used as a ground to
     grant bail. Hence, the aforesaid argument on the behalf the appellant
     cannot be accepted.
33. Hence, we are of the considered view that the material on record
    prima facie indicates the complicity of the accused as a part of the
    conspiracy since he was knowingly facilitating the commission of a
    preparatory act towards the commission of terrorist act under section
    18 of the UAP Act.
34. For the aforementioned reasons the bail application of the Appellant
    is rejected and consequently the appeal fails. Needless to say, that
    any observation made hereinabove is only for the purpose of deciding
    the present bail application and the same shall not be construed
    as an expression on the merits of the matter before the trial court.


     Headnotes prepared by: Nidhi Jain     Result of the case: Appeal Dismissed.