Terror funding case: Delhi HC denies bail to Kashmiri separatist leader Shabir Shah

New Delhi: The Delhi High Court on Thursday refused to grant bail to Kashmiri separatist leader Shabir Ahmad Shah in a terror funding case, observing the possibility of him carrying out similar unlawful activities and influencing witnesses couldn't be ruled out.

A bench of Justices Navin Chawla and Shalinder Kaur said the Constitution of India provides for a right to freedom of speech and expression, but it also places reasonable restrictions such as public order, decency, morality or incitement to an offence.

"This right cannot be misused under the garb of carrying out rallies wherein, a person uses inflammatory speeches or instigates the public to commit unlawful activities, detrimental to the interest and integrity of the country," the bench said.

The high court, therefore, dismissed Shah's appeal against the trial court's July 7, 2023 order refusing bail.

Shah was arrested by the National Investigation Agency (NIA) on June 4, 2019.

The high court also rejected Shah's alternate prayer seeking "house arrest" given the serious nature of charges.

In 2017, the NIA registered a case against 12 persons for allegations of conspiracy for raising and collecting funds for causing disruption by way of pelting stones, damaging public property and conspiring to wage war against the government of India.

Shah was alleged to have played a "substantial role" in facilitating a separatist or militant movement in Jammu and Kashmir by inciting and instigating the general public to sloganeer in support of the secession of the J&K; paying tribute to the family of slain terrorists or militants by eulogising them as "martyrs"; receiving money through hawala transactions and raising funds through the LoC trade, which were allegedly used to fuel subversive and militant activities in J&K.

The high court observed he was the chairman of the unlawful organisation Jammu and Kashmir Democratic Freedom Party (JKDPF).

The bench examined a table elaborating on the 24 pending cases against Shah, indicating his involvement in a number of criminal cases of a similar nature and relating to conspiring for the secession of J&K from the union territory of India.

These cases reflect extensive preparations and coordinated action undertaken in furtherance of that objective, it added.

Opposing Shah's bail, the NIA counsel said the investigating agency had unearthed and collated substantial incriminating evidence against him and found that he played an active part in a deep-rooted conspiracy related to secessionist and terrorist activities in the J&K.

Shah's counsel argued at the time when his client was alleged to have been involved in various activities, his organisation hadn't been declared unlawful and that he was not involved in any illegal activity.

The court, however, found no merit in the plea.

In case Shah was involved in unlawful activities, the high court said, the same couldn't be termed as lawful only because the organisation he was heading was at the time, was not declared an unlawful association.

The court said though the videos relied upon by the prosecution were 25-years old, Shah couldn't be absolved of the alleged offences committed at that time.

These videos and the purported related acts came to light only when the investigation in the present case was initiated, it added.

On Shah's plea pointing out a delay in the trial against him, the high court noted though he had been in custody for five years, charges were framed and the trial was underway without any delay on the part of the prosecution.

In other connected cases, the high court said, the prosecution had fairly conceded to prune the list of its witnesses.

In the present case too, the prosecution was expected to drop irrelevant witnesses so that the trial would proceed at a faster pace, it added.

The court said charges were framed by the trial court in the case and for adjudicating his regular bail plea, there were reasonable grounds to believe that the accusations against Shah appeared prima facie true.

"The appellant has not been able to discharge the burden upon him in order to secure bail," it said.

In March 2022, the trial court framed charges against the appellant for allegedly conspiring to raise and collect funds for causing disruption and conspiring to wage war against the government of India.

The high court also noted that co-accused Mohd Yasin Malik was sentenced to life imprisonment by the trial court upon his pleading guilty in the case.