Rizwan Ahmed @ Khali @ Azad vs The State Of Maharashtra
2021 Latest Caselaw 17716 Bom

                                          CRI APEAL525-2021-.DOC

                                                           Santosh
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            CRIMINAL APPELLATE JURISDICTION


             CRIMINAL APPEAL NO. 525 OF 2021

Rizwan Ahmed @ Khali @ Azad
Age 23 yrs; Occu : Student
S/o Nizamuddin Ali Mohammed Ali
Sisvamatiya, Post Parsauna, Tal. Padrauna,
Kasaya Police Station, Dist. Kushinagar,           ...Appellant
Uttar Pradesh                                      (Accused no.1)

                     Versus

The State of Maharashtra
(through National Investigating Agency)
National Investigating Agency (NIA)              ...Respondent
                                                    (Complainant)



Mr. Sharif Shaikh, a/w Ms. Kritika Agarwal, Mr. Shahid
      Nadeem, Mr. Qurban Hussain, i/b Mr. Mateen Shaikh,
      for the Appellant.
Smt. A. S. Pai, Special PP, for the Respondent/NIA.
Mr. S. R. Shinde, APP for the State.

                              CORAM: S. S. SHINDE AND
                                  N. J. JAMADAR, JJ.

RESERVED ON: 30th SEPTEMBER, 2021.

PRONOUNCED ON: 21st DECEMBER, 2021 JUDGMENT:- (Per: N. J. JAMADAR, J.)

1. This appeal under Section 21 of the National Investigation

Agency Act, 2008 ("the NIA Act") is directed against an order

dated 10th May, 2021, passed by the learned Special Judge (NIA),

on an application (Exhibit-174) in NIA Special Case No.3 of 2016,

preferred by the appellant - accused no.1 for enlarging him on

CRI APEAL525-2021-.DOC

bail during the pendency of the said case, whereby the said

application came to be rejected.

2. Shorn of unnecessary details, the background facts

leading to this appeal can be stated as under:

(a) In Special Case No.3 of 2016, the appellant along

with co-accused Mohseen (A2) and Ayaz Mohammed (wanted

accused no.1) and Yusuf-Al-Hind @ Yusuf (wanted accused no.2)

stand charged for having entered into a criminal conspiracy with

unknown persons to instigate wanted accused no.1 Ayaz and

other youths of Malvani, Malad, to join Islamic State of Iraq and

Syria ("ISIS") and for having supported the ISIS in its terrorist

acts and instigated and assisted the youths of Malad, Mumbai

to leave India to join the terrorist organization ISIS for Jihad,

punishable under Section 18 of the Unlawful Activities

(Prevention) Act, 1967 ("UAPA") and Section 120B of the Indian

Penal Code, 1860 ("the Penal Code"). The appellant has also

been charged for the offence punishable under Section 20 of

UAPA for being a member of banned terrorist organization (ISIS

and ISIL). In addition, the appellant has been charged for

having committed offence relating to membership of a terrorist

organization, punishable under Section 38, and also for having

CRI APEAL525-2021-.DOC

given support to the terrorist organization, punishable under

Section 39 of the UAPA.

3. The gravamen of indictment against the appellant is that

the appellant was involved in the criminal conspiracy with co-

accused no.2 Mohsin and wanted accused Ayaz Mohammed and

Yusuf in propagating the jihadi related activities of ISIS with

the common objective and intention to join ISIS, a banned

terrorist organization, and to participate in its terrorist

activities. In pursuance of the aforesaid criminal conspiracy the

appellant and co-accused Mohsin started making efforts to

instigate, intimidate and influence vulnarable Muslim youths of

Malvani (Malad) Mumbai with a view to compel them to become

Fidayeen or to leave for Hijart with an ultimate objective of

motivating them to join ISIS.

4. The appellant was initially arrested on 22 nd January, 2016

in CR No.24 of 2015, registered at ATS Kalachowky Police

Station, Mumbai, pursuant to the report lodged by Mr. Satish

Mayekar, Police Inspector, to the effect that four youths were

missing from Malvani area and one of them Ayaz (wanted

accused no.1) had already joined ISIS. After the NIA took over

the investigation, the crime was re-registered at RC

CRI APEAL525-2021-.DOC

No.02/2016/NIA/Mumbai. Post completion of investigation, the

appellant stands charged for the offences, as indicated above.

5. The appellant preferred the application for bail (Exhibit-

174), with the assertion that there was no material to make out

a prima facie case against the appellant. The investigating

agency failed to collect any evidence to substantiate the

allegation that the appellant entered into a conspiracy with the

wanted accused and co-accused no.2, he was a member of the

banned terrorist organization (ISIS) and gave support to the

terrorist organization. In particular, apart from the statement

of the accomplice Mohsin (A2), that the appellant was the Nayab

Amir of ISIS in India, there was no material to establish the

nexus between the appellant and the banned terrorist

organization.

6. Apart from the merits, the appellant sought bail on the

ground of prolonged incarceration as the appellant had spent

almost six years as an under-trial prisoner. It was very unlikely

that the trial would be completed in a reasonable time as the

prosecution proposed to examined 228 witnesses. The

continued incarceration of the appellant without the prospect of

the trial being concluded within reasonable time was in

CRI APEAL525-2021-.DOC

negation of the right to life and liberty guaranteed under Article

21 of the Constitution of India.

7. The learned Special Judge was not persuaded to accede to

the prayer of the appellant for release on bail. After adverting to

the material on record, including the evidence of witnesses

recorded during the course of the trial, the learned Special

Judge was of the view that there was prima facie material to

show the involvement of the appellant for the offences for which

he has been arraigned. To arrive at the said finding, the learned

Special Judge adverted to the statements of the witnesses and

the circumstantial evidence in the nature of the call detail

records, the history of online activities of the appellant and the

fact that the appellant had travelled to many places in India,

during the relevant period, and had established contacts with

persons, who were based at Saudi Arabia and Siria, and had

taken a room on leave and licence basis at Goa.

8. On the aspect of the period of incarceration as an under-

trial prisoner, though the learned Special Judge was of the view

that the case of the appellant - accused no.1 would fall within

category (b) of the classification delineated in the case of

Shaheen Welfare Association vs. Union of India and others, 1 yet,

1 (1996) 2 Supreme Court Cases 616.

CRI APEAL525-2021-.DOC

having regard to the nature of the accusation and the material

pressed into service against the appellant, the learned Special

Judge declined to exercise the discretion in favour of the

appellant. The possibility of the appellant reverting to identical

proscribed activities and fleeing away from justice was also

adverted to.

9. Being aggrieved by and dissatisfied with the impugned

order of rejection of the prayer for bail, accused no.1 - appellant

is in appeal.

10. Mr. Vikram Khalate, Superintendent of Police, NIA, has

filed an affidavit in opposition of the prayer for bail.

11. Appeal is admitted and, with the consent of the Counsels

for the parties, taken up for hearing and final disposal.

12. We have heard Mr. Sharif Shaikh, the learned Counsel for

the appellant and Mrs. Pai, the learned Special Counsel for the

respondent/NIA, at length. With the assistance of the learned

Counsels for the parties, we have perused the material on

record including the documents, depositions of witnesses and

statements of protected witnesses, compilations of which were

tendered by the learned Counsel for the appellant and

respondent/NIA.

CRI APEAL525-2021-.DOC

13. Mr. Shaikh, the learned Counsel for the appellant

submitted that the accusation against the appellant of having

conspired with wanted accused Ayaz is not at all borne out by

the material on record. An endeavour was made to demonstrate

that the prosecution case proceeds on the premise that the

appellant came to Mumbai in the month of December, 2015. If

that be the case, from the own showing of the prosecution, the

radicalization of wanted accused no.1 Ayaz had started in the

year 2013 itself. Even the co-accused no.2 Mohasin and PW-15

and PW-18, who were allegdly instigated by the appellant to join

ISIS and commit terrorist acts, were already radicalized.

Except, co-accused no.2 Mohsin and PW-15, no other person

had the occasion to meet the appellant. To bolster up this

submission, Mr. Shaikh took us through the charge-sheet

(paragraphs 17.4 to 17.6), the statements of protected witnesses

and the evidence of PW-15 and PW-18. It was urged, with a

degree of vehemence, that even if the prosecution case is taken

at par, it cannot be said that there is material to demonstrate

that the accusation against the appellant is prima facie true.

14. In the backdrop of the aforesaid nature of the evidence

and the material arrayed against the appellant, the learned

Special Judge committed a grave error in rejecting the

CRI APEAL525-2021-.DOC

application, despite recording, in clear and explicit terms, that

there was no material to suggest that the appellant had

contacted wanted accused no.1 Ayaz, submitted Mr. Shaikh.

15. Assailing the order on the score of refusal to exercise the

discretion in favour of the appellant, though the learned Special

Judge observed in no uncertain terms that the case of the

appellant would fall in category "b" of the classification in the

case of Shaheen Welfare Association (supra), Mr. Shaikh

submitted that the said refusal to exercise the discretion

tantamounts to denial of life and personal liberty. Thus, on

merits as well as on the count of prolonged incarceration, which

is in teeth of the judgments of the Supreme Court in the cases

of Shaheen Welfare Association (supra) and Union of India vs. K.

A. Najeeb2, the appellant deserves to be enlarged on bail, urged

Mr. Shaikh.

16. Reliance was also placed on the judgments of this Court in

the cases of Vikram Vinay Bhave vs. State of Maharashtra and

others3, National Investigation Agency vs. Areeb Ejaz Majeed 4

and recent judgment delivered by us in the case of Iqbal Ahmed

Kabir Ahmed vs. State of Maharashtra,5 wherein, this Court has

2(2021) 3 SCC 713.

3MANU/MH/1213/2021 42021 SCC Online Bom 239.

52021 Online Bombay 1805.

CRI APEAL525-2021-.DOC

granted bail to accused, who stood charged for the offences

under UAPA.

17. In opposition to this, Smt. Pai, the learned Special PP for

the respondent - NIA stoutly resisted prayer for bail. At the

threshold, it was submitted that in the backdrop of the grave

nature of the allegations and the material on record, including

the evidence of PW-15 and PW-18, which ex facie indicate that

the allegations against the appellant are true, the interdict

contained in Section 43D of the UAPA comes into play with full

force and vigour and, therefore, the appellant cannot be released

on bail. In the light of the overwhelming material on record,

according to the learned Special PP, the learned Special Judge

was wholly justified in declining to exercise the discretion in

favour of the appellant, especially, in the face of the interdict

contained in Section 43D of UAPA. Smt. Pai, the learned

Special PP took the Court through the statements of protected

witnesses, statements of PW-15 and PW-18 recorded under

Section 164 of the Code, and the depositions of PW-15 and PW-

18, as well as the circumstantial evidence formed by the Call

Detail Records and the panchnamas. Banking upon the

pronouncement of the Supreme Court in the case of National

Investigation Agency vs. Zahoor Ahmad Shah Watali6, Smt. Pai 62019(5) Supreme Court Cases 1.

CRI APEAL525-2021-.DOC

forcefully submitted that since, in the facts of the case, the bar

under Section 43D of UAPA operates with full force, the Court

would not be justified in releasing the appellant on bail.

18. On the aspect of the prolonged period of incarceration,

Smt. Pai would urge that, as of the date of the submissions, the

prosecution had examined 34 witnesses. The prosecution

proposes to examine 70 to 80 more witnesses. In the case at

hand, the delay was not attributable to the prosecution as the

accused took three months each to cross-examine PW-15 and

PW-18. In this backdrop, since the trial is being conducted in

right earnest and 34 witnesses, including PW-15 and PW-18,

who are the material witnesses, have been examined, the

appellant does not deserve to be enlarged on bail on the count of

delay in trial, submitted Smt. Pai.

19. We have carefully perused the material on record and

considered the submissions canvassed across the bar.

20. In the matter of grant of bail, ordinarily the nature and

seriousness of the offence, the circumstances in which the

offences were allegedly committed, the nature and character of

the evidence, the circumstances peculiar to the accused, the

possibility or otherwise of the presence of the accused not being

secured at the trial, reasonable apprehension of evidence/

CRI APEAL525-2021-.DOC

witnesses being tampered with, and the larger public interest

are the factors which weigh in, in exercising the discretion. It is

trite law that at the stage of considering the prayer for bail,

meticulous examination of evidence and elaborate

documentation on merits of the case are not to be made. The

Court is, however, expected to give reasons for granting or

refusing to grant bail. Yet, the said exercise of ascribing reasons

is markedly different from discussing merits/demerits of the

case, as a Court would do at the stage of determination of guilt.

This requirement of ascribing reasons assumes critical

significance where there are statutory restrictions in the matter

of grant of bail like Section 43D of the UAPA. Section 43D(5)

contains an interdict against the grant of bail unless the public

prosecutor has been given an opportunity of being heard and,

on a perusal of the case diary or the report lodged under

Section 173 of the Code, the Court is of the opinion that there

are no reasonable grounds for believing that the accusation

against the accused is prima facie true. Section 43D(6) further

provides that the restriction on granting of bail, envisaged in

Section 43D(5), is in addition to the restriction under the Code

or any other law for the time in force for grant of bail.

CRI APEAL525-2021-.DOC

21. The aforesaid being the contours of sphere of exercise of

discretion, in the matter of grant of bail, particularly when the

accused stands charged for the offence punishable under UAPA,

the task at hand becomes more delicate, in the sense that, the

evidence of the witnesses, who have been examined so far,

cannot be subjected to such scrutiny as is warranted while

determining the guilt of the accused. We are, thus, required to

exercise due circumspection in considering import of evidence,

lest the exercise does not partake the character of appreciation

of evidence.

22. With the aforesaid clarity, we revert to the facts of the

case. As indicated above, the charge against the appellant is

that of entering into a criminal conspiracy with unknown

persons to instigate wanted accused no.1 Ayaz and other youths

of Malvani, Malad to join ISIS, and to instigate, advocate, advise

and incite them to leave India to join the terrorist organization,

ISIS. In pursuance of the said conspiracy the appellant,

allegedly being a member of the said terrorist organization, ISIS

and ISIL, indulged in acts and participated in the meetings to

achieve the aforesaid objective. Is there material which renders

the aforesaid accusation, prima facie, true?

CRI APEAL525-2021-.DOC

23. The statements of protected witnesses recorded during the

course of investigation and PW-15 and PW-18 under Section 164

of the Code indicate that the appellant had visited Mumbai in

the month of December, 2015. Co-accused no.2 Mohsin had

introduced the appellant to PW-15. In his deposition before the

Court, PW-15 has given a vivid account of the circumstances in

which he came to be indoctrinated. Undoubtedly, a significant

role is attributed to co-accused no.2 Mohsin. However, the part

played by the appellant in the indoctrination of PW-15 is also

deposed to with reference to the meetings between co-accused

no.2 Mohsin, appellant and PW-15, the arrangements made for

the stay of appellant, precautionary action taken when it was

apprehended that the appellant was being pursued by police.

PW-15 specifically deposed to a meeting which he had at Haji

Ali, Mumbai and the endeavour made by the appellant to

indoctrinate him.

24. Mr. Shaikh, the learned Counsel for the appellant,

endeavoured to persuade us to appreciate the manner in which

PW-15 fared in the cross-examination. Our attention was

invited to the omissions and improvements in the version of PW-

15 qua the statements recorded during the course of

investigation. Emphasis was laid on the circumstances which

CRI APEAL525-2021-.DOC

allegedly forced PW-15 to attempt to commit suicide, attributing

the alleged acts of harassment to the officers of the investigating

agency.

25. As indicated above, at this juncture, we would not be

justified in delving into the manner in which PW-15 fared in the

cross-examination. At the cost of repetition, we are not called

upon to appreciate the evidence as the trial court would do. The

testimony of PW-15 indicates that the appellant had visited

Mumbai in the month of December, 2015. He was introduced by

co-accused no.2 Mohsin as the Nayab Amir of ISIS in India and

the appellant made an endeavour to indoctrinate PW-15.

26. Mr. Shaikh, the learned Counsel for the appellant, would

strenuously urge that apart from the said assertion that co-

accused no.2 Mohsin had introduced appellant as the Nayab

Amir, there is no material to establish the nexus between the

appellant and the banned organizations. The aforesaid

submission is required to be appreciated in the light of the fact

that the said assertion is made by a witness, who was allegedly

a privy to the plot to leave India to join ISIS. There is material

on record to indicate that PW-15 and PW-18 had in fact left their

home with the said objective along with co-accused no.2 Mohsin

and travelled to various places in the South.

CRI APEAL525-2021-.DOC

27. The aforesaid submission also losses sight of the true

nature and import of criminal conspiracy. It is well recognized

that conspiracy is hatched in secrecy. The degree of secrecy,

where the allegations are of the conspiracy to commit terrorist

acts, is compounded by pseudo-names, aliases and devices

adopted to conceal the identity. It would be naive to expect that

there would be direct evidence of conspiracy in such matters.

The prosecution is thus not necessarily enjoined to establish

that the conspirators expressly agreed to do or cause to be done

the illegal act. The agreement may be proved by necessary

implication and inferred from the act, conduct and attendant

circumstances. Law is settled that the conspiracy to commit an

offence is by itself a substantive offence and thus entails

punishment. Every individual offence committed in pursuance

of such conspiracy is separate and distinct offence for which the

offenders are liable to be punished, independent of the offence

of conspiracy.

28. In the backdrop of the aforesaid principles which govern

the law of conspiracy we are afraid to accede to the broad

submission on behalf of the appellant that there should be

either direct evidence or a direct nexus between all the co-

conspirators. From this stand point, the absence of material to

CRI APEAL525-2021-.DOC

indicate that PW-18 had known or met the appellant or that the

appellant had met wanted accused Ayaz, does not assume

decisive significance. The law recognizes that there can be a

general conspiracy and separate conspiracy wherein a group of

persons act together in furtherance and execute a part of the

general conspiracy. In such cases, the doctrine of plurality

means in execution of a larger and general conspiracy comes

into play.

29. A profitable reference, in this context, can be made to a

judgment of the Supreme Court in the case of Ajay Agarwal Vs.

Union of India & Ors.7, wherein the Supreme Court expounded

several or different models or techniques to broach the scope of

conspiracy. One of the model was that of a chain, where each

party performs, even without knowledge of other, a role that

aids succeeding parties in accomplishing the criminal objectives

of the conspiracy. The Supreme Court gave the illustration of

procuring and distributing narcotics or an illegal foreign drug

for sale in different parts in which confederates in the general

conspiracy execute their respective parts in the larger

conspiracy. The observations of the Supreme Court in

paragraph No. 24 are instructive and thus extracted below :

"24. ............ Thus, an agreement between two or more

7(1993) 3 SCC 609

CRI APEAL525-2021-.DOC

persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means. Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into. It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy. Each act constitutes separate offence punishable, independent of the conspiracy. The law had developed several or different models or techniques to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. An illustration, of a single conspiracy, its parts bound together as links in a chain, is the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers knew that the middlemen must sell to retailers-, and the retailers knew that the middlemen must buy of importers of someone or another. Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers, and those at the other end knew that it had not begun with their settlers. The accused embarked upon a venture in all parts of which each was a participant and an abettor in the sense that, the success of the part with which he was immediately concerned, was dependent upon the success of the whole. It should also be considered as a spoke in the hub. There is a rim to bind all the spokes to gather in a single conspiracy. It is not material that a rim is found only when there is proof that each spoke was aware of one another's existence but that all promoted in furtherance of some single illegal objective. The traditional concept of single agreement can also accommodate the situation where a well defined group conspires to commit multiple crimes so long as all these crimes are the objects of the same agreement or continuous conspiratorial relationship, and the conspiracy continues to subsist though it was entered in the first instance................."

(emphasis supplied)

30. The aforesaid pronouncement was followed with approval

by a three Judge Bench of the Supreme Court in the case of

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State of Maharashtra & Ors. Vs. Som Nath Thapa and Ors. 8 In

the said case, (Bombay bomb blasts), the Supreme Court held

that, it would not be necessary to establish that the accused

knew that the RDX and/or bomb was/were meant to be used for

bomb blast at Bombay, so long as they knew that the material

would be used for bomb blast in any part of the country. The

Supreme Court adverted to the principle of plurality of means.

The observations of the Supreme Court in paragraphs 22 to 24

illuminatingly postulate the legal position :

"22. As in the present case the bomb blast was a result of chain of actions, it is contended on behalf of the prosecution, on the strength of this Court's decision in Yash Pal Mittal vs. State of Punjab 1977 (4) SCC 540, which was noted in para 9 of Ajay Aggarwal's case that of such a situation there may be division of performances by plurality of means sometimes even unknown to one another; and in achieving the goal several offences may be committed by the conspirators even unknown to the committed. All that is relevant is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy, even though there may be sometimes misfire or over-shooting by some of the conspirators.

23. Our attention is pointedly invited by Shri Tulsi to what was stated in para 24 of Ajay Aggarwal's case wherein Ramaswamy, J. stated that the law has developed several or different models or technique to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other, a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. The illustration given was what is done in the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers. Middleman privies to a single conspiracy to smuggle and distribute narcotics. The smugglers know that the middlemen must sell to retailers and the retailers know that the middlemen must buy from importers. Thus the conspirators at one end at the chain know that the unlawful business would not, and could not,

8(1996) 4 SCC 659

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stop with their buyers, and those at the other end know that it had not begun with settlers. The action of each has to be considered as a spoke in the hub - there being a rim to bind all the spokes together in a single conspiracy.

24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. When can charge be framed ?"

(emphasis supplied)

31. Thus, the Supreme Court has exposited in clear and

explicit terms that when the ultimate offence consists of a chain

of actions, it would not be necessary for the prosecution to

establish, to bring home the charge of conspiracy, that each of

the conspirators had the knowledge of what the collaborator

would do, so long as it is known that the collaborator would put

the goods or service to an unlawful use.

32. Readverting to the facts of the case, in the light of the

aforesaid legal position, it is pertinent to note that the statement

made by co-accused no.2 Mohsin, about the position of the

appellant in the banned terrorist organization cannot be said to

be bereft of any evidentiary value. The said statement was

made when the conspiracy was allegedly afoot. PW-15 has

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categorically deposed to the said fact and, prima facie, even

stood his ground during the course of cross-examination. In

this state of affairs, the provisions contained in Section 10 of the

Evidence Act render such statement relevant and admissible

against the co-conspirator on the basis of "doctrine of agency",

which the said section embodies.

33. The circumstantial evidence in the nature of the use of

multiple mobile phones, visit to multiple locations by the

appellant in proximity to the period during which the appellant

visited Mumbai and met co-accused Mohsin and PW-15, the use

of the accounts online in pseudo names and alises, also

deserves requisite consideration. If the circumstantial evidence

is considered in juxtaposition with the evidence of PW-15 and

PW-18, and the statements of the rest of the protected

witnesses, it would be audacious to record a finding that there

are no reasonable grounds to believe that the accusation against

the appellant is prima facie true. In the facts of the case at

hand, the reliance placed by the learned Special PP, on the

judgment of the Supreme Court in the case of Zahoor Ahmad

Watali (supra) appears to be well-founded. Once such a prima

facie finding is recorded, the interdict contained in Section

43D(5) of the UAPA precludes the Court from releasing the

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accused on bail, unless a case is made out to exercise the

jurisdiction to uphold the constitutional guarantee.

34. This propels us to the second limb of the submission on

behalf of the appellant rested in the long period of incarceration

as an under-trial prisoner. The appellant came to be arrested

on 22nd January, 2016. The appellant is in custody for almost

six years. Post filing of the charge-sheet by NIA, charge was

framed against the appellant and co-accused no.2 on 3 rd

August, 2018. Indisputably, the recording of evidence has

commenced and the prosecution had examined 34 witnesses. It

would be contextually relevant to note that the prosecution cited

228 witnesses; however, the learned Special PP had made a

statement that now the prosecution proposes to examine 70 to

80 witnesses out of the rest of the witnesses.

35. In the aforesaid factual backdrop, as regards the stage of

trial and the course it is expected to take, Mr. Shaikh, the

learned Counsel for the appellant would urge that in the

light of the punishment which the offences entail, namely

Section 120B of the Penal Code, Sections 18, 20, 38 and 39 of

the UAPA, for which the appellant is being prosecuted, further

detention of the appellant as an under-trial prisoner would be in

gross violation of the right of the appellant - accused to speedy

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trial, which is a facet of right to life under Article 21 of the

Constitution.

36. In the case of Iqbal Ahmed (supra), we had an occasion to

deal with the prayer for bail on the count of prolonged

incarceration, as an under-trial prisoner, in the context of the

fundamental right to life and personal liberty and the

reasonability of the procedure which deprives an under-trial

prisoner of the right to speedy trial. In the said case, after

consulting the pronouncements in the cases of Shaheen Welfare

(supra) and K. A. Najeeb (supra), we had stated the legal

position as under:

"39. This right to speedy trial, in the prosecutions where the special enactments restrict the powers of the Court to grant bail, faces a competing claim of the interest of society and security of State. In such prosecutions, if the trials are not concluded expeditiously, the procedure which deprives the personal liberty for an inordinate period is then put to the test of fairness and reasonableness, envisaged by Article 21 of the Constitution. Where the period of incarceration awaiting adjudication of guilt become unduly long, the right to life and the protection of fair and reasonable procedure, envisaged by Article 21, are jeopardized.

40. In the case of Saheen Welfare Association (supra) the Supreme Court considered the conflicting claims of personal liberty emanating from Article 21 and protection of society from the terrorist acts, which the Terrorist and Disruptive Activities (Prevention) Act, 1987 professed to achieve. The Supreme Court reconciled the conflicting claims of individual liberty and the interest of the community by issuing directions for release of the under trial prisoners, who had suffered long incarceration, depending upon the gravity of the charges. The observations of the Supreme Court in para 9 to 11 and 13 to 14 are material and hence extracted below:

9] The petition thus poses the problem of reconciling conflicting claims of individual liberty versus the right of the community and the nation

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to safety and protection from terrorism and disruptive activities. While it is essential that innocent people should be protected from terrorists and disruptionists, it is equally necessary that terrorists and disruptionists are speedily tried and punished. In fact the protection to innocent civilians is dependent on such speedily trial and punishment. The conflict is generated on account of the gross delay in the trial of such persons. This delay may contribute to absence of proper evidence at the trial so that the really guilty may have to be ultimately acquitted. It also causes irreparable damage to innocent persons who may have been wrongly accused of the crime and are ultimately acquitted, but who remain in jail for a long period pending trial because of the stringent provisions regarding bail under TADA. They suffer severe hardship and their families may be ruined.

10] Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justifed looking to the nature of the crime, as was held in Kartar Singh's case (supra), on the presumption that the trial of the accused will take place without undue delay.

No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.

11] These competing claims can be reconciled by taking a pragmatic approach.

13] For the purpose of grant of bail to TADA detentes, we divide the under trials into three classes, namely, (a) hardcore under trials whose release would prejudice the prosecution case and whose liberty may prove to be a menace to society in general arid to the complainant and prosecution witnesses in particular; (b) other under-trials whose overt acts or involvement directly attract Sec.3 and/or 4 of the TADA Act;

(c) under trials who are roped in, not because of any activity directly attracting Sec.3 and A, but by virtue of Sec.120B or 147 I.P.C., and; (d) those under trials who were found possessing Incriminating articles in notified areas & are booked under Section 5 of TADA.

14] Ordinarily, it is true that the provisions of Sections 20(8) and 20(9) of TADA would apply to all the aforesaid classes. But while adopting a

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pragmatic and just approach, no one can dispute the fact that all of them cannot be dealt with by the same yardstick. Different approaches would be justified on the basis of the gravity or the charges. Adopting this approach we are of the opinion that under-trials falling within group (a) cannot receive liberal treatment. Cases of under- trials falling in group (b) would have to be differently dealt within. in that, if they have been in prison for five years or more and their trial is not likely to be completed within the next six months, they can be released on bail unless the court comes to the conclusion that their antecedents are such that releasing them may be harmful to the lives of the complainant the family members of the complainant, or witnesses. Cases of under-trials falling in groups (c) and (d) can be dealt with leniently and they can be released if they have been in sail for three years and two years respectively................."

41. The aforesaid judgment was referred with approval, by the Supreme Court in the case of K. A. Najeeb (supra) wherein the Supreme Court while emphasizing that under trials cannot be indefinitely detained pending trial, expounded in clear terms that once it is found that timely conclusion of trial would not be possible and accused has suffered incarceration for a significant period of time, the Court would be obligated to enlarge the accused on bail. The observations in paragraph 15 and 17 are instructive and thus extracted below:

15] This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Under-trial Prisoners v. Union of India, it was held that under trials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time,

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Courts would ordinarily be obligated to enlarge them on bail.

17] It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of prescribed sentence. Such approach would safeguard against possibility of provisions like Sec.43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

(emphasis supplied)

42. The Supreme Court has thus exposited the legal position that the statutory restriction like section 43-D(5) of the UAPA per se does not operate as an impediment on the powers of the constitutional Court to grant bail, if a case of infringement of the constitutional guarantee of protection of life and personal liberty is made out, and the rigours of such statutory restriction would melt down in the face of long incarceration of an under trial prisoner. In such a situation, the prayer of entitlement for bail on the count of prolonged delay in conclusion of trial is required to be appreciated in the backdrop of period of incarceration, the prospect of completion of trial in a reasonable time, the gravity of the charge and attendant circumstances."

37. The aforesaid observations were recorded in the backdrop

of the fact that in the said case the appellant - accused therein

had undergone more than five years imprisonment as an under-

trial prisoner and the recording of evidence had yet not

commenced.

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38. Applying the aforesaid principles to the facts of the case at

hand, in our view, the distinctive features which emerge are:

firstly, the trial has commenced and a substantial number of

witnesses, including PW-15 and PW-18, who appeared to be

prime witnesses, have been examined. Secondly, in the

impugned order also, the learned Special Judge has adverted to

the circumstances, especially the exigency of situation which

arose on account of Covid-19 Pandemic for the delay in trial.

Thirdly, the quality of the material pressed into service against

the appellant also assumes importance. Fourthly, in the light of

the nature of the accusation and the gravity of the offences, the

apprehension entertained by the learned Special Judge that

there is a strong possibility of the appellant reverting to the

proscribed activities cannot be said to the totally unfounded. At

this juncture, it deserves mention that the appellant's name is

revealed as an accused in the report filed by the NIA,

Delhi in the NIA Court, New Delhi, arising out of

RC/14/2015/NIA/DLI. We refrain to observe anything more in

that context. Yet, this fact cannot be brushed aside when the

question of exercise of discretion on account of delay in trial is

considered on the touchstone of the likelihood of the appellant

indulging in the proscribed activities. We are thus not

persuaded to accede to the prayer of the appellant to enlarge

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him on bail on the count of the prolonged period of

incarceration as an under-trial prisoner. At the same time, the

fact that the appellant has already undergone the minimum

period of imprisonment prescribed for the offence punishable

under Section 18 and more than half of the maximum

punishment prescribed for the offeneces punishable under

Sections 38 and 39, cannot be lost sight of.

39. In the circumstances of the case, since we have noted that

the trial is being conducted with reasonable dispatch, we deem

it appropriate to direct the learned Special Judge to conclude

the trial as expeditiously as possible. We are of the view that,

since material witnesses have been examined, the examination

of the rest of the witnesses ought not consume long time. In the

totality of the circumstances, we deem it appropriate to grant

liberty to the appellant to renew prayer for bail if the trial is not

concluded by December, 2022.

40. For the foregoing reasons, we do not find any justifiable

reason to interfere with the impugned order. The appeal thus

deserves to be dismissed, subject to aforesaid direction and

liberty to the appellant.

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41. Hence, the following order:

:ORDER:

(i) The appeal stands dismissed.

(ii) The learned Special Judge NIA, Mumbai is, however,

requested to conclude the trial in NIA Special Case

No. 3 of 2016, as expeditiously as possible and

preferably by the end of December, 2022.

(iii) In the event, the trial is not concluded by December,

2022, the appellant shall be at liberty to renew the

prayer for bail.

(iv) By way of abundant caution, it is clarified that the

consideration is confined to the entitlement of the

appellant for bail and the NIA Court shall not be

influenced by any of the observations made

hereinabove in the determination of the guilt of the

appellant and/or the co-accused.

                            [N. J. JAMADAR, J.]                   [S. S. SHINDE, J.]



         Digitally
         signed by
         SANTOSH
SANTOSH SUBHASH
SUBHASH KULKARNI
KULKARNI Date:
         2021.12.21
         17:20:36
         +0530