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Terror funding case: NIA Court frames charges against Ex-Minister Babu Singh, others

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JAMMU: Special Judge NIA Jammu Jatinder Singh Jamwal on Monday framed charges against Jatinder Singh alias Babu Singh Ex-Minister, Mohd Shareef Shah alias Shariefuddin alias Shareef Bukhari, Fayaz Ahmead Bhat; Mubashir Mushtaq; Mohd. Rafiq; Aijaz Ahmad Sayam; Farooq Ahmad Naikoo; Mohd Arshad; alias Syed Ashiq Elahi alias Umar alias Moulvi Sahab in terror funding case.
According to the challan that instant case was registered on December 31, 2022 in Police-Station: Gandhi Nagar, Jammu, vide Its FIR No 73/2022, and subsequently the investigation of the case was transferred to the State Investigation Agency, Jammu, SIA for short hereafter, for carrying out an in-depth investigation. Besides the initial Charge-sheet filed by the Investigation Agency on September 24, 2022, four supplementary charge-sheets have been filed so far in the case, with first supplementary Charge-sheet being filed on December 5, 2022; second on December 19, 2022; third on February 17, 2023 and fourth on February 20, 2024.
Having said that, it Is further pertinent to notice that in Its fourth supplementary Charge-sheet, filed on February 20, 2024, the Investigation Agency has arraigned as many as six more persons as accused in the case, taking the total number of accused persons in the case to 18. That apart, proceedings under Section 299 of Cr. P.C., were initiated against three out of the twelve accused persons (arraigned as accused in the initial and firstly supplementary Charge-sheets), namely Mohd Hussain Khateeb alias Khateeb (A-3); Kifayat Rizvi (A-5); & Tariq Ahmad alias Tariq Murtaza alias Murtaza alias Muntazir Tariq (A-12), as they are presently settled in, and operating from, Pak Occupied Kashmir and, therefore, their presence could not be secured for the purpose of investigation and trial. Taking that into account coupled with the fact that arguments with respect to the six newly added accused persons, i.e. A-13 to A-18, are yet to commence and the arguments with respect to framing of charges against the accused persons, arraigned as such in the initial charge-sheet and the first three supplementary charge-sheets, had been almost completed by the time the fourth supplementary charge-sheet was filed, the finding in this order, regarding the framing of charges, is confined only to accused nos. A-1, A-2, A-4, A-6, A-7, A-8, A-9, A-10 & A-ll. That said, it is noticed that the present case was registered, on March 31, 2022, in Police-Station: Gandhi Nagar, on the basis of an input received by the Officer Incharge, Police-Post: Nehru Market, Jammu that the accused no. 1 was coming from Kashmir to Jammu to hand over hawala-money to ccused no. 2 for the purpose of financing Jammu based separatists and secessionist groups/parties to carry out subversive activities against the Sovereignty, Integrity and Security of India.
Accordingly, a cordon (Naka) was laid at Bikram Chowk, Jammu and the accused no.l was stopped and subjected to frisking and a sum of Rs.6,90,000/- only, comprising of Government Currency Notes (of India), was seized from his possession. The Currency Notes were concealed In a black coloured bag. It was In the said background, that the case was registered In Police-Station: Gandhi Nagar, Jammu for offences under Sections 13/17/18 of UA (P) Act and the investigation was taken-up by SDPO, Gandhi Nagar.
Special Judge NIA Jammu Jatinder Singh Jamwal after hearing Special PP Anuj Gupta for the SIA, observed that As far as, question of commission of offences under Sections 16, 17 & 18 of the UA (P) Act is concerned, as already noticed, there is nothing in the vision-document or in the two videos relied upon by the Prosecution evidence that the accused no. 2 advocated the use of terrorism or any other kind of violence. Rather, he is seen advising all the groups to shun militancy and adopt peaceful means for resolution of the Kashmir issue. It Is, therefore, reiterated that there is nothing in the evidence to make out a credible case of conspiracy to commit the offence/s involving ‘terrorist act’ as contemplated under section 15 of the UA (P) Act and made punishable under Section 16 of the Act. In observing that reliance is placed on a ruling anded down by the Division Bench of High Court of J&K in: Peerzada Shah Fahad Vs UT of J&K And Anr (Criminal) A(D) No. 42/2022 connected with CRM. M. No. 472/2023; Decided on 17.11.2023′, wherein the Hon’ble Division Bench quashed the charge framed for offences under section 18 of the Act by accepting the argument of the Counsel for the appellant that the offence under section 18 of the UA (P) Act can only be for committing the ‘terrorist act’ as defined under section 15 of the Act (supra) and that a ‘terrorist act’ is confined only to the acts mentioned In Section 15 (1) committed by using any of the substances mentioned In Section 15(1 )(a) resulting in any of the consequences mentioned In Section 15(1)(a) (i), (II), (ill), (iii)(a) and (iv) as also the acts mentioned in Section 15(1)(b) and 15(l)(c) of the UA(P) Act. In the Instant case, there is no accusation In the Charge-sheet that Accused persons had committed or conspired to commit ‘terrorist act’ as mentioned in Section 15 of the UA (P) Act. That being so, accused no. 2 is discharged of commission of offences under sections 16. 17 & 18 of the Act. Here it is seemly to advert to an argument put forth by the Ld. Spl. PP for the SIA that case of the accused no. 2 is covered under Explanation Clause (c) appended to Section 17 (supra), which provides that whoever raises or collects or provides funds. In any manner for the benefit of, or, to an individual terrorist, terrorist gang or terrorist organization for the purposes not specifically covered under Section 15 shall also be construed as an offence, it is noticed that offence under Section 17 of the Act is not established for the section (supra) is attracted only when funds are collected with the knowledge that the same are likely to be used in full or in part by a terrorist organization* or by a oterrorist gang* (‘Vinit Agarwal @ Vineet Agarwal vs National Investigation Agency’, as reported in Cr. Appeal (DB) No. 208 of 202; CLJ 2022 1258 (Jharkhand) (DB) followed). Since the Court has already come to the conclusion that the accused no. 2 is neither working for furtherance of the terrorist activities of HM or for terrorism and the party founded by him cannot be categorized as ‘terrorist gang’, the commission of offence under section 17 of the Act is also not established. In the given situation it needs no emphasis to observe that commission of offence under section 20, which provides punishment for being a member of ‘terrorist gang* or ‘organization1, is also not established. Accused no. 2 is, therefore, discharged of commission of said offence as well. However, as already noticed, the accused no. 2 prima facie appears to have committed the offences made punishable under Sections 10(a) fly) of the UA (PI Act read with Section 10(a) III) of the Act (supra) & the offence made punishable under Section 13 11) (a) and (b) of the UA (P) Act. He is. therefore, formally charge-sheeted for the commission of said offences.
Going back to accused no. 1, it is reiterated that the only accusation against him is that he collected the amount in question from accused no. 11, at near Chanpora Masjid, Srinagar, under the instruction ot accused no. 2 and was bringing it to Jammu for delivery to the latter when he was caught by the Police. Taking that into account as also the discussions made here before, whilst returning the finding on the question of framing of charges against accused no. 2, in the considered opinion of this Court, the accused no. 1 has prima facie committed the offence under Section 13 (I) (b) of the UA (P) Act by abetting the commission of unlawful activity by the accused no. 2. The accused no. 1 is, therefore, formally charge-sheeted for commission of offence under Sections 13 (I) (b) of the UA (P) Act and he is discharged of commission of offences under section 17/18/20/21/39 & 40 of the UA (P) Act.
As far as accused no. 4, namely Fyaz Ahmed Bhat is concerned, it manifests from the record that he has been working as an Over Ground Worker, since long tor a militant group: Hizb-ul-Momnin, an offshoot of Hizb-ul-Nluzahideen, headed by accused no. 5, who is presently in POK. As per the case of the Prosecution, he is a part of the larger conspiracy and a regular member of the module/network involved in furtherance of terrorist-activities in Jammu and Kashmir. In nutshell, it manifests that the accused no.4 received huge amount from unknown persons and distributed the same among the families of killed terrorists on the directions of accused no.5 in order to promote terrorist activities in the valley. In the instant case, also he received a sum of Rs 4 lacs from accused no. 11 and delivered Rs. 3.00 Lacs to one Muneer and retained a sum of Rs.1.00 Lac which he distributed between the members of Tehreek-e-Wahadat-e-lslaml. Besides that he has also obtained pecuniary benefits from terrorist-organization and managed admission of his two children in a Medical College at Bahawalpur, Pakistan free of cost. The accused no. 4, therefore, appears to have raised funds for the benefit of terrorists, terrorist gang and terrorist-organization, as mentioned in Part C of the explanation Clause of Section 17 of the UA (P) Act and also associated himself with the terrorist organization – HM, besides setting up his own group. Taking that into account and the facts and circumstances of the case, accused no.4 prima facie appears to have committed the offences made punishable under Sections 13 , 17 & 38 of the UA (P) Act. He is, therefore, formally charge-sheeted for commission of said offences (supra). However, in the peculiar circumstances of the case and his role, as established by the Investigation Agency, commission of offences under Sections 18 & 21 (i.e. punishment for holding of proceeds of terrorism) of the UA (P) Act are prima facie not established. He is, therefore, discharged of the offences made punishable under Sections 18 & 21 of the Act (supra). .3.3 Adverting to accused nos. 6, 7 & 8, namely Mubashir Mushtaq Fafoo, Mohd Rafiq Najar and Aijaz Ahmed Sayam respectively, it manifests from the record that accused no. 6 received an amount of Rs. 89.95 lacs from the accused no. 7 on the directions of accused no. 9, who was coordinating the movement of funds from Dubai under the instructions of accused no.12 based in Pakistan, for further distribution amongst the individuals identified by him (accused no. 9) in order to promote terrorist activities in J&K and the accused no. 8 facilitated and coordinated in delivery of the same. The said accused persons, therefore, prima facie appear to have committed offence under sections 13, 38 & 40 of UA (P) Act read with Section 120-B of IPC. They are. therefore, formally charge-sheeted for commission of said offences (supra) but discharged of the offence under Section 21 of the Act (supra).
Adverting to the accused no. 09, namely Farooq Naikoo, it manifests that the said accused always indulged in similar criminal activities not only in the state of J&K but even outside the State/ UT. As far as his role In the present case is concerned. It manifests that the entire collection of money from illegitimate sources was done and, thereafter, distributed, at his instruction/s through accused nos. 6, 7, 8 & 11. That apart, he also destroyed the cellphone used by him in the commission of offences (supra). Here it is in place to notice that the issue regarding generation of funds from Narco-Hawala transactions is still under investigation and a finding on that behalf shall be returned only after the additional charge-sheet/s are considered by the Court. Taking that into account and the facts and circumstances of the case, accused no. 9 prima facie appears to have committed the offences made punishable under Sections 13/38/398.40 of the UA (P) Act read with Section 120-B of IPC and Section 201 of the Code (supra). He is, therefore, formally charge-sheeted for commission of said offences (supra) but discharged of commission of offences under Section 21 of the Act (supra).
As far as the Accused no.10, namely Arshad Ahmed, is concerned, he had given his SIM Card (No.+971561098387) to Farooq Ahmed Naikoo (A-9) and the latter sent an OTP to accused no. 12, namely Tariq Murtuza, who was operating from Pakistan, for activation of Whats App on his mobile in Pakistan to maintain his anonymity and escape from Security Surveillance. In lieu thereof, the accused no. 9 directed the accused no. 6 to transfer a sum of Rs. 25,000/- into the account of the father of the accused no. 10. On the basis of the said allegations, the Prosecution has established offence under section 13 & 39 of the UA (P) Act read with Section 120-B of IPC against him. The precise accusation of the Prosecution is that by providing a Dubai based SIM Card to the accused no. 9, accused no. 10, facilitated him, in combination with terrorists, for carrying out terrorist activities. However, apart from the fact that he had handed over his SIM Card to the accused no. 9. there is no evidence manifesting his Involvement In furtherance of terrorist activities of the terrorist organization- HM – either prior to or after the handing over of the SIM Card to accused no. 9. The manner In which the accused no.10 got acquainted with accused no. 09 and developed good friendly relations with him is narrated In the charge-sheet In detail and is also admitted by the accused no.10 In his disclosure-statement and the statement under section 164 of Cr. P.C, which was recorded during the investigation of the case as the Investigation Agency initially intended to cite him as a witness for the Prosecution in the instant case. Therefore, question of commission of offence under Section 39 of the UA (P) Act by the accused no. 10 does not rise. However, since it is the case of the Prosecution that the accused no. 10 handed over the SIM Card to the accused no. 9 despite of being full-well in knowledge of the fact that the accused no. 9 was not getting a new SIM Card as his permit (VISA) for his stay in Dubai was about to expire, the accused no. 10 can at the most, in the considered opinion of this Court, be charae-sheeted for the offence made punishable under Section 13 fII lb) of the UA (P) Act for having abetted the commission of unlawful activities bv accused no. 9. As far as the question of him being a part of the criminal-conspiracy is concerned it is noticed that neither there is anything on record to infer that he was a part of the module which the accused no. 9 was using to distribute the funds amongst the individuals identified by the latter nor the goods/the articles, SIM Card in this case, was an article/instrument which could not have been put to a lawful use. Had the accused no. 10 handed over, to accused no. 9, something which could not have been put to lawful use, in that eventuality an inference could have been drawn against the accused no. 10 and held liable for the offence of criminal- conspiracy. Having said that and reiterating that there is nothing on record to suggest that accused no. 10 was in any manner involved in furtherance of the activities of accused no. 9, he is formally charge-sheeted for offence under Section 13 (I) (b) of the UA (P) Act and is discharged of offences under section 39 of the Act (supra) and Section 120-B of IPC. 4.3.6 As far as the Accused no. 11, namely Ashiq Elahi, is concerned, it manifests from the record that the accused nos. 9 and 12 generated terror funds with ctive support of accused nos. 7 and 8 and delivered the same to separatists through the accused nos. 6, 7, 8 & 11 in order to strengthen terrorism in the State of J&K. That apart, the accused no. 11 also destroyed his cell-phone along with SIM Card in order to do away with the evidence against him. Accused no. 11, therefore, appears to have prima facie committed offence made punishable under sections 13, 39 & 40 of UA (P) Act read with Section 120-B of IPC and the offence under Section201 of IPC. However, he is discharged of offence under Section 21 of the UA (P) Act. 5. In the circumstances, the accused no. 1 Is formally charged with commission of offence under Section 13 (I) (b) of the UA (P) Act; accused no. 2 Is formally charged with commission of offences under Sections 10(a) (iv) of the UA (P) Act read with Section 10(a) (11) of the Act (supra) & offence under Section 13 (I) (a) & (b) of the UA (P) Act; accused no. 4 is formally charged with commission of offences under Sections 13, 17 & 38 of the UA (P) Act; accused nos. 6, 7 & 8 are formally charged with commission of offences under Sections 13, 38 & 40 of UA (P) Act read with Section 120-B of the IPC; accused no. 9 is formally charged with commission of offences under Sections 13/38/398*40 of the UA (P) Act read with Section 120-B of IPC and Section 201 of the Code (Supra); accused no. 10 is formally charged with commission of offence under Section 13 (I) (b) of the UA (P) Act; accused no. 11 is formally charged with commission of offences under Sections 13, 39 & 40 of the UA (P) Act and Section 120-B of IPC and Section 201.

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