[2023:RJ-JP:20389]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 15015/2021
Jameel Ahmad S/o Sh. Haji Khalil Ahmad Bakhad, Aged About
50 Years, R/o 138 Ward No. 9 Vayapari Mohalla Kasba / Block -
Fathepur Dist. Sikar Raj. Present Address Flat No. 203 Royal
Palace Building Vill. Dahanu Dist. Palgarh Maharashtra Presently
Lodged In Central Jail Jaipur
----Petitioner
Versus
State Of Rajasthan, Through PP
----Respondent
For Petitioner(s) : Mr. Ashok Agarwal with
Mr. Nitesh Vyas
Mr. Mujahid Ahmad
Mr. Farooq Ahmad
For Respondent(s) : Mr. Rajesh Maharshi, AAG with
Mr. Devanshu Saini
HON'BLE MR. JUSTICE ANIL KUMAR UPMAN
ORDER
Order pronounced on ::: 04/09/2023
Order reserved on ::: 27/07/2023
1. The instant bail application has been filed under Section 439 Cr.P.C. on behalf of the accused-petitioner Jameel Ahmad who has been in custody since 15.11.2016 in connection with FIR No.08/2016 registered at Police Station ATS & SOG, Rajasthan Jaipur for offences under Sections 17, 18, 20, 39 and 40 of The Unlawful Activities (Prevention) Act, 1967. After investigation, the police has filed chargesheet in this matter before the learned court below wherein the trial is at the stage of prosecution evidence. (Downloaded on 11/11/2023 at 07:46:25 PM) [2023:RJ-JP:20389] (2 of 7) [CRLMB-15015/2021]
2. It is contended by learned counsel for the petitioner that the accused petitioner has falsely been implicated in this case. He contended that there is no evidence available on the record of the case to connect the accused petitioner with the allegations levelled against him. The petitioner was arrested in connection with the aforesaid FIR on 15.11.2016 and since then, he is languishing in jail. He further contended that out of 33 cited witnesses, 31 witnesses have been examined so far and from the last so many dates, prosecution has failed to produce the witness for recording their testimony inspite of the fact that the petitioner is languishing in jail for last six years and nine months. He contended that the co-accused Mohd. Iqbal has been granted bail by a Coordinate Bench of this Court vide order dated 17.01.2023 passed in S.B. Criminal Misc. Third Bail Application No.15689/2022n (Mohammad Iqbal vs State of Rajasthan). He contended that period of custody is always a relevant consideration for grant of bail. Learned counsel placed reliance on the following judgments:-
(i). Ashim @ Ashim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya vs National Investigation Agency : reported in 2022 1 SCC 695
(ii). Union of India vs K.A. Najeeb : reported in 2021 3 SCC 713
(iii). Iqbal Ahmed Kabir Ahmed vs State of Maharashtra :
MANU/MH/2082/2021
3. He thus, prayed that the instant bail application may be accepted and the petitioner may be released on bail in connection with the aforesaid FIR.
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4. Per contra, learned AAG Shri Rajveev Maharshi, vehemently and fervently opposed the bail application. He submitted that the petitioner is having anti-national ideology. He contended that the petitioner is the key person who provided financial assistance to the banned organization ISIS, which was used by the terrorist group to do terrorist activities. He also contended that the accused petitioner is involved with terrorist groups via social media and he expressed his pleasure (likes) as well as satisfaction over the demolition of a holy shrine and carnage, done by the ISIS and were liked by him. He further contended that in view of proviso t to sub-section (5) of Section 43D of the Act, bail should not be granted to an accused, if the Court, after 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. He thus, sought dismissal of the instant bail application. He relied upon the followed judgments:-
(i). Sartaj Khan vs State of Uttarakhand : reported in 2022 SCC online SC 360
(ii). Raan Singh vs Union of India : D.B. Criminal Appeal No.389/2019, decided on 17.01.2022
(iii). Sheikh Javed Iqbal vs State of U.P. : Criminal Misc. Bail Application No.2282/2021, decided on 03.04.2023 by Allahabad High Court (Lucknow Bench) : MANU /UP/0573/2023
(iv). Suresh Virpakshappa Dambal vs State : 2022 Livelaw (Kar) 486 (Downloaded on 11/11/2023 at 07:46:25 PM) [2023:RJ-JP:20389] (4 of 7) [CRLMB-15015/2021] 5 I have heard and considered the submissions advanced by counsel for the petitioner as well as learned AAG and perused the material available on record.
6. According to the prosecution story, the petitioner was settled at Dubai and some funds were made available to him by the co-accused Mohd. Iqbal through Hawala. However, the said co-accused Mohammad Iqbal has been granted bail by Coordinate Bench of this Court vide order dated 17.01.2013. It is further alleged against the petitioner that funds which were made available to him by the co-accused were further transferred by him to terrorist organization ISIS through Western Union Money Transfer. PW 20 Sikander and PW.21 Harun, who were projected by the prosecution to establish the fact that money was transferred to the accused petitioner Mohd. Iqbal through Hawala has not supported the prosecution case and they have been declared hostile. It is also evident from record that the petitioner is languishing in jail since 15.11.2016 and the prosecution is not producing the witnesses and the trial is still at the stage of prosecution evidence. The record reveals that statements of only two witnesses have been recorded during last eight months and as such, possibility that trial will take long time in it conclusion, cannot be ruled out. This lethargic attitude of the prosecution is seriously violating the fundamental right of the speedy trial of the petitioner as guaranteed under Article 21 of the Constitution of India and in such a situation, the conditional liberty must override the statutory embargo. In the case of Jahir Hak vs State of Rajasthan : (2022) 0 AIR (SC) 3047, indulgence of bail was (Downloaded on 11/11/2023 at 07:46:25 PM) [2023:RJ-JP:20389] (5 of 7) [CRLMB-15015/2021] extended to the accused therein by the Hon'ble Apex Court by considering the following observations made by in the case of Union of India vs K.A. Najeeb (2021) (3) SCC 713:-
"12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156], Babba v. State of Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v. State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.
19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43- D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by abscission, etc."(Downloaded on 11/11/2023 at 07:46:25 PM)
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7. It has also been observed by Hon'ble Apex Court that the condition in Section 43D(5) of the Act of 1967 has been understood to be less stringent than the provisions contained in Narcotic Drugs and Psychotropic Substances Act, 1985 because unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA.
8. In view of the aforesaid discussion, I am of the opinion that the instant application for bail under Section 439 Cr.P.C. deserves acceptance. Accordingly, the instant bail application is allowed and it is hereby directed that the accused petitioner Jameel Ahmad S/o Shri Haji Khalil, who has been arrested in connection with FIR No.8/2016, registered at Police Station ATS & SOG, Jaipur Rajasthan shall be released on bail provided he furnishes a personal bond in the sum of Rs.3,00,000/- together with two sureties in the sum of Rs.1,50,000/- each to the satisfaction of the learned trial court with the stipulation that he shall appear before that Court and any court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so. In addition to above, the bail is granted to the petitioner subject to following conditions:-
1. That he shall not involve in similar offence(s) in future.
2. That he shall mark his attendance twice a month before the concerned police station i.e., on every 15th and last day of the month.
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3. That he will provide his mobile number, if any, to the Investigating Agency within ten days from his release.
4. That he will surrender his passport, if any, to the trial court within ten days from his release
5. That he will provide his permanent residential address to the Investigating Agency and if he changes his address, he will inform in this regard to the Investigating Agency as well as the trial court.
6. That the petitioner shall cooperate in expeditious disposal of the trial.
7. In the event, the petitioner violates any of the aforesaid conditions, the relief of bail granted by this Court will be liable to be cancelled.
9. The learned trial court is directed to conclude the trial expeditiously preferably within six months from today and no unnecessary adjournments shall be given in this matter.
(ANIL KUMAR UPMAN),J Sudhir Asopa/ (Downloaded on 11/11/2023 at 07:46:25 PM) Powered by TCPDF (www.tcpdf.org)