Safikul Islam @ Safiqul Islam vs National Investigation Agency ...
2022 Latest Caselaw 859 Gua

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GAHC010217612021




                                THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : Crl.A./217/2021

             SAFIKUL ISLAM @ SAFIQUL ISLAM
             S/O- OMAR ALI, VILL.- SHIMLABARI, P.O. RANGAPANI, P.S. MERERCHAR,
             DIST.- BONGAIGAON, ASSAM, PIN- 783384.



             VERSUS

             NATIONAL INVESTIGATION AGENCY (NIA)
             REP. BY THE LEARNED PUBLIC PROSECUTOR, NIA.



Advocate for the Petitioner     : MR. S B LASKAR

Advocate for the Respondent : SC, NIA




                                         BEFORE
                            HONOURABLE MR. JUSTICE SUMAN SHYAM
                            HONOURABLE MR. JUSTICE ROBIN PHUKAN

                                          JUDGMENT

Date : 11-03-2022

(Robin Phukan, J.)

1. This appeal, under section 21(4) of the National Investigating Agency (NIA) Act 2008, is directed against the order dated 04.12.2021, passed by the learned Special Judge, NIA, Guwahati, Assam in Misc. Case (NIA) No. 24/2021, arising out of Special NIA Case No. 04/2019 (RC 02/2019/NIA/GUW), corresponding to FIR of Paltan Bazar P.S. Case No. Page No.# 2/5

339/2019, under Sections 120(B)/420/489(C) IPC. Be it mentioned here that vide impugned order the learned Special Judge, NIA, Guwahati has rejected the anticipatory bail application filed by the appellant Md. Safiqul Islam @ Safiqul Islam, under Section 438 Cr.PC.

2. The factual background leading to filing of the present appeal is adumbrated herein below:-

During a routine check up on 05.04.2019, at Islampur road near Solapara flyover Paltan Bazar police recovered Fake Indian Currency Notes (FICNs) of the denomination of Rs. 200/- (420 pieces) Rs. 500/- (200 pieces) of total Rs. 1,84,000/-(Rupees one lac eighty four thousand) only from the possession of three persons namely Matleb Ali, Amir Hamza and Dilbar Hussain. On receipt of a written complaint to that effect from women Sub-Inspector of Police- Smti. Junmoni Kalita, the Officer-in-Charge of Paltan Bazar Police Station registered one FIR, being FIR No. 339 of 2019, under Sections 120(B)/420/ 489(C) IPC and started investigation. In the meantime, the Ministry of Home Affairs, Government of India, vide its order F. No. 11011/16/2019/NIA, dated 07.05.2019, under sub-section (5) of Section 6 read with Section 8 of the NIA Act, 2008 directed the NIA to take up the investigation of the case. Pursuant to said direction Special NIA Case No. 04/2019 (RC 04/2019/NIA/GUW) dated 05.04.2019 was registered and investigation was carried out, which culminated in submission of charge sheet before the learned Special Judge, NIA on 05.12.2019, under Sections 120(B)/420/489(C) IPC, against four persons namely -Matleb Ali, Amir Hamza, Dilbar Hussain and Abdul Baten. While submitting the charge sheet, the Investigating Officer (I.O.) of the case made a prayer on 05.12.2019, before the learned Special Judge, NIA for allowing further investigation of the case, as per provision of section 173(8) Cr.P.C., and the learned Special Judge, NIA vide order dated 05.12.2019 had allowed the same. During further investigation, the I.O. has collected some materials against some other accused persons. Thereafter, on 17.12.2020 the I.O. had issued a notice, under Section 160 Cr.PC, to the appellant also, who was earlier arrested in connection with Kalgachia P.S. Case No. 797/2018, on 29.08.2018, under Sections 120(B)/489(A) / 489(C) IPC, which also relates to recovery of fake Indian currency notes from the Page No.# 3/5

house of one Sudip Biswas, asking the appellant to appear before him. On his appearance, the I.O. had recorded his statement under Section 161 Cr.P.C. The I.O. also got his statement recorded under section 164 Cr.P.C. Thereafter, apprehending arrest in NIA Case No. 04/2019, the appellant had approached the Court of learned Special Judge, NIA for granting pre-arrest bail on 22.11.2021, upon which Misc. Case No. 24/2021 was registered. After hearing learned Advocates of both sides, the learned Special Judge has rejected the petition, filed by the appellant.

3. Being highly aggrieved, the appellant approached this Court by filing the present appeal on the grounds that:-

(i) He had no connection with the offence alleged in the Special NIA Case No. 04/2019;

(ii) The Court below has failed to properly appreciate the statements of co-accused Sudip Biswas and Khandakar Khairul Alom, who had implicated him in Kalgachia P.S. Case No. 797/2018, under Sections 120(B)/489(A)/489(C) IPC;

(iii) The court below has failed to appreciate that he has co-operated with the investigation after receiving notice and he has got his statement recorded under Section 164 Cr.PC also;

(iv) The court below has failed to appreciate the submission made by his counsel in his bail petition.

4. We have heard Mr. S.B. Laskar, learned counsel for the appellant and Mr. D.K. Das, learned senior counsel appearing for the respondent/ NIA.

5. Mr. Laskar, learned counsel for the appellant submits that after recording the statement of the appellant under Section 161 and 164 Cr.P.C., the appellant had received one notice dated 06.01.2022, under Section 41A Cr.P.C. from the Investigating Officer asking the appellant to appear before him on 10.01.2022, at 11 hours and as such the appellant has reasonable apprehension that he may be arrested in the said case. Mr. Laskar further submits Page No.# 4/5

that the appellant has no connection in the NIA case No. 04/2019, though he was arrested in Kalgachia P.S. Case No. 797/2018, under Sections 120(B)/489(A)/489(C) IPC. And though the appellant had approached the learned Special Judge, NIA by filing an application under Section 438 Cr.P.C., yet, the same was rejected without appreciating the points raised in the said application and without appreciating the fact that the appellant has been co-operating with the I.O. Mr. Laskar, further submits that the appellant is innocent and therefore, it is contended to allow the appeal.

6. Per contra, Mr. D.K. Das, learned Sr. counsel for the respondent/NIA submits that there is no error in the impugned order passed by the learned court below and that Kalgachia P.S. Case No. 797/2018 is totally different from the NIA Case No. 04/2019 which was registered on the basis of FIR of Paltan Bazar P.S. Case No. 339/2019. Producing the case diary of NIA Case No.04/2019 for perusal of this court Mr. Das further submits that statement under Section 161/164 Cr.P.C. of the appellant discloses incriminating materials against him. Besides, Mr. Das submits, two other co-accuseds, namely, Sudip Biswas and Khandakar Khairul Alom also implicated the appellant and fake currency notes and printer/xerox machine was recovered from their possession and as such the learned court below has rightly rejected the petition. He further submits that investigation is still under progress in the case and therefore, the learned court below has rightly rejected the petition under Section 438 Cr.P.C.

7. Having heard the submissions of the learned Advocates of both sides we have carefully gone through the grounds of appeal and also the documents placed on record and the case diary produced by the Mr. D.K. Das and also carefully gone through the impugned order, dated 04.12.2021, passed by the learned Special Judge, NIA in NIA Case No. 24/2021, arising out of NIA Case No.04/2019. It is to be mentioned here that the learned court below has rejected the petition under Section 438 Cr.P.C. on the basis of statement co-accused Sudip Biswas and Khandakar Khairul Alom, who have implicated the appellant in dealing with fake Indian currency notes and also considering the statement of the appellant recorded under Sections 161/164 Cr.PC and thereafter arrived at the finding that pre-empting custodial examination of the appellant by granting anticipatory bail may not be in the best interest of Page No.# 5/5

further investigation.

8. Having carefully gone through the record of the learned court below and also the case diary produced by Mr. D.K. Das, learned senior counsel for the respondent, specially the statement of co-accused Sudip Biswas and Khandakar Khairul Alom and also the statement of the appellant recorded under Sections 161/164 Cr.PC, we are not impressed with the submissions advanced by Mr. Laskar, learned counsel for the appellant that there is no material against the appellant. It appears that the I.O. has collected sufficient materials in support of the allegations made in the FIR against the present appellant. It also appears that further investigation is still going on. Thus, considering above, and further considering the nature and gravity of accusations and severity of punishment in case of conviction and the antecedent of involvement of the appellant in similar cases and likelihood of the offence being repeated in the event of extending the privilege of pre-arrest bail and its ramification upon the economy of the country and also in the larger interest of the public and we are of the considered view that the learned court below has rightly arrived at the finding that pre- empting custodial interrogation of the appellant would not be in the best interest of further investigation.

9. In the result, we find no merit in this appeal and accordingly, the same stands dismissed. The appellant is directed to appear before the I.O. pursuant to the notice under Section 41A Cr.P.C. However, we make it clear that this judgment and order would not stand in the way of the appellant in seeking any other legal remedy available to him under the law, if so advised. The record and the case diary be sent back to the learned court below immediately.

10. Appeal stands dismissed.

                                                      JUDGE             JUDGE


Comparing Assistant