In Fahad Shah bail order, HC says probe agency lacked evidence, case against him ‘dug out’ after 11 years

“The existence of prima facie evidence against the accused is to no avail if there is no justification for the arrest based on the doctrine of clear and present danger to the society. If the investigating agency does not satisfy this court and is unable to justify the arrest (as warranted in Joginder Kumar), the same would result in the violation of the rights of the accused under part III of the Constitution as adumbrated in KA Najeeb’s case, and the accused may be enlarged on bail. In order to assess whether the accused is a clear and present danger, there can be no rule of thumb and it must be seen in the backdrop of the specific facts and circumstances of each case,” it said.

Granting bail to Shah and quashing charges framed against him for offences under section 18 of the UAPA, and IPC sections 121 and 153B, the court observed that while the “act was allegedly done 11 years” ago, the investigating agency has brought no evidence that it provoked people to take up the arms against the State.

Shah was held under provisions of the UAPA following the registration of a case by J&K’s State Investigation Agency at CIJ police station in Jammu on April 4, 2022, nearly 11 years after the publication of an article titled ‘The shackles of slavery will break’ on his portal in 2011. The article was written by a Kashmir University scholar, Abdul Aala Fazili, who too has been arrested.

A chargesheet was filed in the case in the NIA Court at Jammu in October last year and charges were framed against Shah and Fazili in March this year. In the chargesheet, the SIA stated that on April 4, 2022, it received from a “discreet but reliable source” a printout of the “highly provocative” and “seditious” article.

“The act was allegedly done 11 years back. From then till date, no evidence has been brought on record that the offending article was responsible in provoking persons to take to militancy. Not a single witness says this,” the court said. “The other cases in which the appellant (Shah) was arrested, he has been enlarged on bail in all of them.”

Giving details of Shah’s arrest under several FIRs, the court said the present case was “dug out” by the police. “The run up to the present case against the appellant is relevant. As per the averments in the appeal, the appellant was arrested by Pulwama police station in connection with FIR No. 19/2022, in which he was granted bail by the TADA/POTA Court at Srinagar. However, the police, without releasing the appellant, shifted his custody to Shopian police station in FIR No. 6/2021, in which too the appellant was granted bail by the court of the Munsiff, Shopian. However, the appellant was still not released, and his custody was shifted to Safa Kadal police station in another case registered there. It is also averred that before the court of competent jurisdiction at Srinagar could decide his bail application, the appellant was taken into preventive detention under the provisions of the Jammu and Kashmir Public Safety Act, 1978,” the court said. “It was in this backdrop that the current case against the appellant was dug out by the Respondent with the registration of the aforementioned FIR.”

On the police chargesheet, the court said that “none of the articles either espouse violence against the State or the government agencies, but they do report instances of violence and the opinion of others which is in the quotations”.

The court also rejected the terror funding charges against Shah. “It is further alleged in paragraph 16.16 of the chargesheet that the Appellant had received Rs. 10,59,163 into his account with HDFC bank from an NGO named Reporters Sans Frontiers in three instalments in the year 2020-21. The appellant is also stated to have received subscription from his readers amounting to Rs 12 lakh since the inception of the domain. The appellant is also alleged to have received approximately Rs 58 lakh, out of which Rs 30 lakh are by way of foreign contributions and Rs 15 lakh by way of cash deposits which, according to the prosecution, is suspicious,” reads the order.

“Orally it has been argued that this surreptitious receipt of monies by the appellant may have been for terror funding. As regards this, it is relevant to mention here that the Ld Trial Court has not charged the appellant u/s. 17 of the UAPA which provides a punishment for terror funding, and instead, has charged the appellant under the relevant provisions of the FCRA. Therefore, the apprehension sounded by the State that the funds received by the appellant, which includes overseas remittances, could have been used for terror funding is summarily rejected.”

On the opinion piece written by Fazili, the SIA had alleged that it is part of an “operation to build and propagate the false narrative that is essential to sustain the secessionist cum terrorist campaign the aim of which is to break the Indian union, secession of Jammu and Kashmir from India and accession to Pakistan”.

The court said that while the opinion piece calls for secession of Jammu and Kashmir, it doesn’t incite violence or an armed insurrection against the state.

“The main thrust of the prosecution’s argument is that the appellant and A1 (Fazili) created a narrative to incite the youth of Jammu and Kashmir to adopt violent means of protest to secede from India and accede to Pakistan and the offending article was written with that intention in which the appellant was a willing collaborator,” the court said.

“The main allegations are against A1 who is the agent provocateur according to the prosecution. It is he who authored the offending article. Having read the offending article, this court prima facie finds that the same calls for the secession of Jammu and Kashmir from India. There is no reference in the article for its accession with Pakistan. It accuses India and the Indian government of genocide against Kashmiris and that they would one day secure freedom. It must however be stated here that there is no call to arms by the author. There is no incitement to an armed insurrection against the State. There is no incitement to violence of any kind, much less acts of terrorism or of undermining the authority of the State with acts of violence,” it said.