[Cites 7, Cited by 0]
Bombay High Court
Nadim Akhtar Ashfaque Shaikh vs The State Of Maharashtra on 10 February, 2026
Author: A.S. Gadkari
Bench: A.S. Gadkari
2026:BHC-AS:7029-DB
P.H. Jayani 32 APEAL300.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.300 OF 2022
Nadim Akhtar Ashfaque Shaikh
Aged : 30 years, Occ. Student,
Room No.508m 5th Floor, Bldg. No.11,
MHADA Colony, Bhakti Park, Nr. IMAX Theatre,
Wadala (E), Mumbai
(Presently in Judicial Custody lodged at
Taloja Central Prison, Mumbai) .... Appellant
(Orig. Accused No.2)
V/s.
The State of Maharashtra
(Through ATS Police Station, Mumbai) .... Respondent
(Orig. Complainant)
_______________________________
Mr. Abad Ponda, Sr. Advocate a/w. Mr. Mubin Solkar, Mr. Tahir Hussain,
Adv. Tahera Qureshi, Mr. Yakub Shaikh, Ms. Hemal Shah and
Mr. Zahid B. i/b. Mr. Anas Khalid Shaikh for the Appellant.
Mr. Vaibhav Bagade, Special PP a/w. Smt. Prajakta P. Shinde, APP for the
Respondent - State
Mr. Prashant Mohite-PI, Mr. Ambre-PSI and Mr. Lad-HC, ATS, present.
_______________________________
CORAM: A.S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 28th JANUARY, 2026
PRONOUNCED ON : 10th FEBRUARY, 2026
JUDGMENT :
[PER : SHYAM C. CHANDAK, J.] :-
1) This Appeal under Section 21(4) of the National Investigation
Agency Act (for short 'NIA Act'), is filed by the original accused no.2,
impugning Order dated 16th January, 2017 passed below Exh.407 in MCOC
Special Case No.11/2012 along with 14/2012, 5/2014, 5/2015 and
P.H. Jayani 32 APEAL300.2022.doc
15/2015 arising out of C.R.No.28/2011 (Opera House), C.R.No.29/2011
(Zaveri Bazar) and C.R.No.30/2011 (Kabutarkhana, Dadar Bomb Blast
Case), Mumbai, by the learned Special Judge under MCOC and NIA Act,
Mumbai, rejecting his Application for bail under Section 439 of the Code of
Criminal Procedure (Cr.P.C.).
1.1) The Officers of the ATS Mumbai have filed Affidavits-in-reply
and opposed the Appeal.
2) Heard Mr. Abad Ponda, learned senior Advocate appearing for
the Appellant, Mr. Vaibhav Bagade, learned Special PP and Smt. P.P. Shinde,
learned APP appearing for the Respondent - State. Perused the record.
3) Mr. Ponda, learned Senior Advocate for the Appellant
submitted that, the Appellant came to be arrested in the year 2012. Since
then, he is behind bars and facing the said case as an under-trial. Till date,
the Appellant has been incarcerated for about 14 years. There is long list of
the prosecution witnesses. As such, the possibility of hearing and
concluding the trial of the case in near future, is remote. He submitted that,
speedy and expeditious trial is a facet of right to live as embodied under
Article 21 of the Constitution of India. That, the trial Court failed to
consider these aspects while rejecting the Application for bail filed by the
Appellant. He submitted that the accused no.5 Kafeel Ahmed Mohd. Ayub
has been released on bail by this Court vide its Judgment dated 4th
November, 2025 in Criminal Appeal No.612/2022. He therefore prayed
P.H. Jayani 32 APEAL300.2022.doc
that, the impugned Order may be set aside and the Appellant may be
released on bail. To support these submissions, Mr. Ponda has cited
following cases :-
1. Kafeel Ahmed Mohd. Ayub v/s. State of Maharashtra reported in
2025 SCC OnLine Bom 4150
2. Gulfisha Fatima v/s. State (Govt. of NCT of Delhi) reported in 2026
SCC OnLine SC 10
3. Arvind Dham v/s. Directorate of Enforcement reported in 2026
SCC OnLine SC 30
4. Javed Gulam Nabi Shaikh v/s. State of Maharashtra and anr.
reported in (2024) 9 SCC 813
5. Jalaluddin Khan v/s. Union of India reported in (2024) 10 SCC
6. Manish Sisodia v/s. Directorate of Enforcement reported in 2024
SCC OnLine 1920
7. Vernon v/s. State of Maharashtra and anr. reported in 2023 SCC
OnLine SC 885
8. Yedala Subba Rao and anr. v/s. Union of India reported in 2023 6
SCC 65
9. Satender Kumar Antil v/s. CBI and anr. reported in (2022)10 SCC
10 Dhan Singh s/o. Shiv Singh v/s. Union of India and Ors. reported
in 2019 SCC Online BOM 5721
11 Munib Iqbal Memon v/s. The State of Maharashtra reported in
2024 SCC OnLine Bom 3017
12 Mirza Himayat Beig v/s. The State of Maharashtra reported in
2024 SCC OnLine Bom 42
13 Afroz Khan Shahid Khan Pathan v/s. State of Maharashtra reported
in 2023 SCC OnLine Bom 1240
4) In reply, Mr Bagade, learned Special PP vehemently submitted
that, there is ample evidence against the Appellant showing his involvement
in the crime right from the beginning till carrying out the bomb explosions
as conspired. Present crime is committed against the nation. As such, it is a
P.H. Jayani 32 APEAL300.2022.doc
serious offence. The case against the Appellant is substantially different
than the case against the accused no.5, whose Appeal was considered by
this Court. This is not a casual prosecution, nor one involving a narrow
factual canvas. The delay in hearing and disposal of the case is on account
of the complexity of the case, the number of accused and the nature of
various issues involved. In this background, Article 21 of the Constitution
of India is of no help to the Appellant. Therefore, release of the Appellant
merely on the ground of long incarceration will not be proper. To support
these submissions, the learned Special PP has produced the affidavits filed
by the NIA/prosecution in Criminal Appeal No.612/2022 and copy of the
Order dated 11th October, 2024 passed in said Appeal.
5) Both the learned counsel have mainly relied upon the decision
in case of Gulfisha Fatima (supra). Therein, the Hon'ble Supreme Court has
observed that Article 21 has never been understood as operating in
isolation from law. The constitutional promise is not that liberty will be
unregulated, but that deprivations of liberty will not be arbitrary,
unconscionable, or unfair. The expression "procedure established by law"
reflects that balance. The UAPA, as a special statute enacted to address
offences alleged to affect the security of the State and the stability of civic
life, represents a legislative judgment as to conditions under which bail may
be granted at pre-trial stage. Section 43D(5) of UAPA embodies the exercise
of that judgment. The Constitutional inquiry into delay is not an inquiry
P.H. Jayani 32 APEAL300.2022.doc
into guilt. It is an inquiry into whether continued detention remains
constitutionally permissible in the circumstances of the case. The proper
constitutional question, therefore, is not whether Article 21 is superior to
Section 43D(5). The proper question is how Article 21 is to be applied
where Parliament has expressly conditioned the grant of bail in relation to
offences alleged to implicate national security. The law does not
contemplate an either-or approach. Nor does it contemplate an
unstructured blending of statutory and constitutional considerations. What
is required is disciplined judicial scrutiny that gives due regard to both.
It is further held that, prolonged custody, though a matter of
concern, does not operate as automatic ground for grant of bail where
statutory threshold continues to be attracted. Plea of delay in facts of
particular case,therefore, does not warrant enlargement of bail, though it
justifies continued judicial emphasis on timely conduct of the proceedings.
Consideration must also be given to integrity of trial process and risks
associated with release. Depending on nature of the case, these may include
the possibility of influencing witnesses, tampering with evidence, or
undermining the fairness of proceedings. This is not to presume guilt, but
to recognise that bail decisions are necessarily forward-looking in terms of
ensuring an effective trial. The Court must also bear in mind that it is not
confined to a binary choice between continued custody and unconditional
release. Where delay becomes a matter of constitutional concern,
P.H. Jayani 32 APEAL300.2022.doc
appropriate directions for expeditious trial, prioritisation of witnesses, or
periodic review of progress may be issued. The liberty to renew prayer for
bail upon continued stagnation may also be preserved. In prosecutions
alleging threats to public order and national security, the Court cannot be
unmindful that both dimensions are engaged. The constitutional order is
not served by an approach that treats liberty as the sole value and societal
security as peripheral. Discipline imposed by Section 43D(5) necessarily
circumscribes nature of judicial scrutiny permissible at bail stage. The Court
is not called upon to weigh the probative value of evidence, to assess its
admissibility, or to determine whether the prosecution version will
ultimately withstand trial. Any exercise approximating a mini-trial at this
stage would transgress the statutory boundary deliberately drawn by
Parliament. Once the prosecution itself projects varying degrees of
proximity, control, and participation, the law mandates an individualised
assessment of culpability, particularly in the context of stringent penal
provisions.
6) In paragraph 28, the Hon'ble Supreme Court has observed
that, "At the threshold, it is necessary to clarify the legal contours within
which the plea of delay operates in prosecutions under the UAPA. Delay
engages Article 21 at two distinct constitutional planes. First, delay may
be of such magnitude and character that continued detention becomes
per se unconstitutional, irrespective of the strength of the prosecution
P.H. Jayani 32 APEAL300.2022.doc
case. Second, delay may be pressed as a circumstance to contend that the
statutory satisfaction under Section 43D(5) stands diluted or
displaced. ..."
7) Perusal of record indicates that, the Appellant was arrested
on 12th January, 2012. The charge was framed in the year 2019. After
framing the charge in 2019, nearly 2 years' time was taken to file an
Application under Section 294 of Cr.P.C. The charge against the co-accused
i.e. Kafeel Ahmed Mohd. Ayub was framed on 5 th March, 2021. The Order
dated 4th November, 2025 in Criminal Appeal No.612/2022 noted that,
about 700 witnesses have been cited by the prosecution in the list of
witnesses. The Bail Application (Exh.407) of the Appellant was rejected by
the impugned Order on 16th January 2017. This Appeal is filed in the year
2022. As informed by the learned Special PP, so far 189 witnesses have been
examined and 200 more witnesses are yet to be examined. Thus, nearly five
years' period is taken by the prosecution to examine said 189 witnesses.
By an Order dated 30th October, 2023 in Criminal Appeal No.612/2022, this
Court had directed the learned Judge of the trial Court to dispose off the
present case as expeditiously as possible and in any event within a period of
one year from the date of receipt of the said Order. It was also kept open
for the learned Judge to take up the case on day to day basis, if possible.
Therefore, it was observed by this Court that "From the pace of the
prosecution, it appears that, similar period may be consumed to examine
P.H. Jayani 32 APEAL300.2022.doc
the remaining witnesses." As such, we are of the view that, in the present
case, the delay alleged is of such a nature as to constitutionally eclipse
the statutory embargo.
8) A three Judge Bench of the Hon'ble Supreme Court in the
case of Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713, in
paragraph Nos.17 and 18 has held as under :-
" 17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D(5) of the 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 the prescribed sentence. Such an approach would safeguard
against the possibility of provisions like Section 43-D(5) of the
UAPA being used as the sole metric for denial of bail or for
wholesale breach of constitutional right to speedy trial.
18. Adverting to the case at hand, we are conscious of the fact
that the charges levelled against the respondent are grave and a
serious threat to societal harmony. Had it been a case at the
threshold, we would have outrightly turned down the
respondent's prayer. However, keeping in mind the length of the
period spent by him in custody and the unlikelihood of the trial
being completed anytime soon, the High Court appears to have
been left with no other option except to grant bail. An attempt has
been made to strike a balance between the appellant's right to
lead evidence of its choice and establish the charges beyond any
doubt and simultaneously the respondent's rights guaranteed
under Part III of our Constitution have been well protected. "
9) After applying the ratio enunciated by the Hon'ble Supreme
P.H. Jayani 32 APEAL300.2022.doc
Court in case of K.A. Najeeb (supra) and Gulfisha Fatima (Supra) and in
light of the facts mentioned above, we are of the view that the Appellant
is entitled to be released on bail during the pendency of his trial.
9.1) Hence, the following Order :-
(i) The impugned Order dated 16th January, 2017
passed below Exh.407 in MCOC Special Case No.11/2012
along with 14/2012, 5/2014, 5/2015 and 15/2015, is
quashed and set-aside.
(ii) The Appellant be enlarged on bail, on his
executing PR bond in the sum of Rs.1,00,000/- with one or
more solvent local sureties in the like amount, to the
satisfaction of the learned Special court.
(iii) After his release from jail, the Appellant shall
report to the office of the ATS, Mumbai (Respondent), on the
first Saturday of every month between 10:00 a.m. to 12:00
noon, till the conclusion of the trial.
(iv) The Appellant shall not, either himself or
through any other person, tamper with the prosecution
evidence and give threats or inducement to any of the
prosecution witnesses.
(v) The Appellant shall not leave the jurisdiction of
the trial court without the prior permission of the trial court,
till the conclusion of the trial.
P.H. Jayani 32 APEAL300.2022.doc
(vi) The Appellant shall surrender his passport, if any,
before the trial court, before his actual release from jail.
(vii) The Appellant shall inform his latest place of
residence and mobile number immediately after being
released and/or change of residence or mobile details, if any,
from time to time to the Court seized of the matter and to the
Investigating Agency i.e. the Respondent herein.
(viii) The Appellant to co-operate in concluding the trial of
present case and attend the trial court on all dates, unless
specifically exempted.
(ix) The Appellant shall file an undertaking with regard to
clauses (iii) to (viii) before the trial court, within two weeks
of his release.
(x) If there is breach of any of the aforesaid conditions, the
prosecution will be at liberty to seek cancellation of
Appellant's bail.
10) Appeal is allowed in the aforesaid terms.
11) It is made clear that, the observations made herein are prima
facie in nature and for deciding the present Appeal only. The learned
Special Judge shall decide the main case on its own merits, in accordance
with law, uninfluenced by the observations made in this judgment.
PREETI
HEERO
JAYANI (SHYAM C. CHANDAK, J.) (A.S. GADKARI, J.)
