Gurwinder Singh v. State of Punjab & Another,

Criminal Appeal No. 704 of 2024 and SLP (Criminal) No. 10047 of 2023

The Supreme Court ruled on Wednesday, February 7, that a man accused of propagating the Khalistani terror movement under the Unlawful Activities (Prevention) Act, 1967 (“UAPA”) cannot be granted bail for merely delaying his trial for a serious violation. According to the bench of justices MM Sundresh and Kumar, they wrote: “…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…mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail.”.

In Union of India v. K.A. Najeeb, LL 2021 SC 56, the court stated that the right to a speedy trial is a basic right and that its violation is a basis for bail in UAPA cases. This ruling was cited by the appellant or accused. It was emphasised that the appellant had been incarcerated for more than five years and that, throughout that time, only nineteen of the 106 witnesses had been questioned. The court distinguished between the current case and that of KA Najeeb, noting that the latter’s trial was conducted independently of the other accused parties. The remaining suspects had their trial concluded, and they received prison terms not to exceed eight years. Therefore, the Court, expecting the impending sentence in case of conviction, took into account the fact that Najeeb had already undergone a portion of the maximum imprisonment (i.e., over 5 years).

Moreover, Najeeb had originally run away. His trial was postponed as a result, and a lengthy list of witnesses needed to be questioned about him. But in this particular case, the appellant’s trial had already begun, and 22 witnesses—including witnesses who were protected by law—had been questioned. The appellant had been involved in the exchange of substantial sums of money through various channels that needed to be deciphered to continue terrorist actions backed by members of a proscribed terrorist organisation, according to the Court’s assessment of the data on file. Therefore, it was impossible to completely rule out the chance that, should he be granted bail, important witnesses would be persuaded.

The appellant contended that his name was not included in the terror funding chart, that he had not received any money, and that nothing incriminating had been found on his cell phone. The court was not convinced by this argument. It stated that the appellant’s involvement in the relevant crime remained unabated.

Factual Background

The CIA first learned of two individuals hanging fabric banners with the phrases “Khalistan Zindabad” and “Khalistan Referendum 2020” next to a flypast in Amritsar. The terrorist group known as “Sikhs for Justice” was dismantled after a case was filed and an investigation into it was conducted. People connected to the group, including the appellant and a man named Bikramjit Singh, were eventually taken into custody.

The inquiry proceeded after the chargesheet was submitted to the Trial Court in 2019, and further chargesheets were later filed. Owing to the seriousness of the charges, the inquiry was moved to NIA in 2020. The Special Judge in 2021 framed charges following the NIA’s filing of a third supplemental chargesheet.

The NIA claims that the accused illegally obtained funds from “Sikhs for Justice” and used them to finance separatist ideology, which calls for the creation of a separate state for Sikhs (Khalistan), as well as other terrorist and preparation activities (such as trying to obtain weapons). Investigations also revealed the involvement of an ISI handler.

The appellant was linked to the case based on a disclosure statement that accused Bikramjit Singh gave to the NIA. According to the aforementioned statement, Bikramjit claimed that the appellant went to Srinagar with him and another accused, Harpreet Singh, to purchase a firearm. Their contact there, nevertheless, was unable to obtain the weapon and instead made an RDX offer. However, the three were told no, and they left for Punjab.

The appellant also allegedly made a disclosure statement to a similar effect.

He originally requested regular bail from the Trial Court for offences under Sections 124A/153A/153B/120B of the IPC, Section(s) 17/18/19 of the UAPA, and Sections 25/54 of the Arms Act. However, his request was denied because there were good reasons to think the accusations were accurate. The High Court upheld the lower court’s ruling on appeal, highlighting the gravity of the crime and the need to continue questioning protected witnesses. The appellant sought the Supreme Court in opposition to the order of the High Court.

Submissions of the Parties

The appellant used KA Najeeb to support his appeal of his more than five-year detention before the Supreme Court. He further insisted that his name was absent from the pertinent records and that he had not been named by eight of the nine protected witnesses who had been questioned.

However, the state contended that there was enough evidence to support the appellant’s damning involvement, citing Section 43 D(5) of the UAPA. It was emphasised that the appellant had stated in his disclosure statement that he had gone to Srinagar willingly after learning of its objective and had even offered the co-accused a different location to buy a rifle. Additionally, the state reported that 22 witnesses had been questioned.

Test for Bail

under UAPA Following a review of numerous rulings, such as NIA v. Zahoor Ali Watali, the court outlined the two-pronged standard that courts must follow when determining bail requests under UAPA: 1) Does the standard for refusing bail get met?

1.1 Determine whether the purported “accusations” initially establish an offence under UAPA’s Chapter IV or VI.

1.2 The case diary and final report filed under Section 173 CrPC should be the only things subject to this investigation.

2) Is it appropriate to extend the accused’s bail following the general guidelines for doing so under Section 439 CrPC (the “tripod test”)?

2.1 Does the accused pose a risk of fleeing?

2.2. Is there reason to believe the accused is manipulating the evidence?

2.3 Whether there is apprehension of the accused influencing witnesses?

The Court denied the appellant’s appeal after analyzing light of the aforementioned.

Adv. Khanak Sharma

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