Kerala High Court
Shiyas T.S vs Union Of India on 8 April, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl. Appeal No.2362/2024 1
2025:KER:30311
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
CRL.A NO. 2362 OF 2024
CRIME NO.2/2023 OF NATIONAL INVESTIGATION AGENCY KOCHI, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 20.09.2024 IN CRMP
NO.218/2024 IN SC NO.1 OF 2024 OF SPECIAL COURT FOR TRIAL OF
NIA CASES,ERNAKULAM
APPELLANT/PETITIONER/ACCUSED NO.3:
SHIYAS T.S.
AGED 32 YEARS
S/O SIDHEEQ, THARAYIL HOUSE, NEDUMPURA CENTRE,
KATTOOR P.O., THRISSUR, PIN - 680702
BY ADVS.
E.A.HARIS
M.A.AHAMMAD SAHEER
MUHAMMED YASIL
FATHIMA SHERIN
RESPONDENT/RESPONDENT/COMPLAINANT:
UNION OF INDIA
REPRESENTED BY SUPERINTENDENT OF POLICE, NATIONAL
Crl. Appeal No.2362/2024 2
2025:KER:30311
INVESTIGATION AGENCY, KOCHI, PIN - 682020
OTHER PRESENT:
ADV. A R L SUNDARESAN, ASGI FOR NIA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.04.2025, THE COURT ON 8/4/2025 DELIVERED THE
FOLLOWING:
Crl. Appeal No.2362/2024 3
2025:KER:30311
RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------.
Criminal Appeal No. 2362 of 2024
---------------------------------
Dated this the 8th day of April 2025
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the 3rd accused in SC No.01/2024/NIA
on the files of the Special Court for the Trial of NIA Cases,
Ernakulam challenging the order passed in Crl.M.P.No.218/2024
dismissing his petition filed under Section 439 of Cr.P.C.
2. The prosecution case is that, the appellant/3rdaccused
knowingly and willingly became a member of the ISIS module in
2022, which was established by the first and the second accused
and took oath of allegiance in favour of ISIS. Thereafter, accused
Nos. 1 to 3 attempted to recruit the 4th accused and others to the
2025:KER:30311
module in Kerala and the third accused identified gullible youths for
recruitment to ISIS for furthering the activities of the terrorist
organization, and solicited and obtained funds from them for pro-
ISIS activities. Accused Nos. 1 to 3 also conspired and conducted
recce of Hindu Temples and prominent persons of other
communities for targeting them, as well as to loot them. They also
identified and recruited vulnerable youths into ISIS and propagated
ISIS ideology through social media and secret communication
platforms. Hence, it is alleged that the 3rd accused has committed
the offences punishable under Section 120B of IPC. and Sections
20, 38 & 39 of the Unlawful Activities (Prevention) Act, 1967 (for
short "UAPA").
3. The learned Counsel for the appellant Adv.E.A.Haris
contended that the appellant is totally innocent of the allegations
levelled against him and he has been falsely implicated due to
political rivalry. He argued that the appellant has been arrested
2025:KER:30311
and kept in custody by the NIA illegally, by flouting all the
statutory norms. He submitted that the appellant, at the time of
his arrest, was not even informed about the grounds of his arrest
in writing and thereby has violated his constitutional rights. He, by
relying on the decisions in Pankaj Bansal v. Union of India
[2023 KHC 6887], Prabir Purkayastha v. State (NCT of
Delhi) [2024 KHC 6286] and Vihaan Kumar v. State of
Haryana [2025 KHC Online 6116], argued that non compliance
with the requirement of informing the grounds of arrest under
Article 22(1) of the Constitution of India renders the arrest itself
illegal. He further contended that the appellant is undergoing
custody from 2/8/2023 onwards and there is no reasonable chance
of the trial in this case commencing in near future. He also argued
that, as per the order dated 27/3/2024 in Crl.M.P.No.76/2024 of
the trial court, further investigation in this case is still progressing,
making the chances of commencement of trial in near future,
2025:KER:30311
bleak. He relied on the decisions in Union of India v. K.A.
Najeeb [(2021) 3 SCC 713], Javed Gulam Nabi Shaikh v.
State of Maharashtra (2024 SCC Online SC 1693), Shoma
Kanti Sen v. State of Maharashtra (2024 KHC 6182), Athar
Parwez v. Union of India (2024 KHC 6719), to contend that
even in cases under UAPA Act, the Apex Court has held that long
incarceration and unlikely likelihood of trial being completed in
near future is a ground for exercising its constitutional role by the
Constitution courts to grant bail. He submitted that the afore
dictums can be squarely made applicable to the facts of the
present case. He also, by relying on Section 6 of NIA Act, and
specially clause 5 of that Section, contended that the NIA does not
have the power to register an FIR directly except in cases falling
under sub clause (8) and therefore, the registration of FIR directly
by the NIA in the present case is illegal. He would also submit that
the 5th accused, against whom similar allegations were raised, has
2025:KER:30311
been granted bail by Hon'ble Apex Court after undergoing
incarceration for 11 months. Hence he prayed that this appeal may
be allowed.
4. Per contra, learned Assistant Solicitor General of India
Adv.Sundareshan vehemently opposed the submissions made by
the learned Counsel for the appellant and contended that no
interference is required with the impugned order. He submitted
that the NIA, after investigation, has filed the final report against
the appellant and others and the evidence collected by them would
clearly show that the allegations levelled against the appellant are
well substantiated. He submitted that there are reasonable
grounds for believing that the accusation against the appellant is
prima facie true and therefore, considering the mandate of Section
43-D(5), the appellant is not entitled to be released on bail. He
relied on the decisions in Gurwinder Singh v. State of Punjab &
Anr[(2024) 5 SCC 403], Mazhar Khan v. NIA [(2024) 6 SCC
2025:KER:30311
627] and National Investigation Agency v. Zahoor Ahmad
Shah Watali [(2019) 5 SCC 1], in support of his contentions. He
further submitted that the decision in Pankaj Bansal's case (cited
supra) is not applicable to the facts of the present case since, the
said decision operates only prospective. He relied on the decision
in Ram Kishor Arora v. Directorate of Enforcement (2023
SCC Online SC 1682) and contended that the Apex Court has
specifically held that the decision in Pankaj Bansal's case (supra) is
prospective in nature. He argued that since the appellant in this
case has been arrested only on 2/8/2023 much after the decision
in Pankaj Bansal's case (supra) which was rendered on 3/10/2023,
the said decision is not applicable to him. He also distinguished the
decision in Vihaan Kumar's case (cited supra) and submitted that
the arrest in that case was made only on 10/6/2024 after, the
decision in Pankaj Bansal's case (supra). As regards the contention
raised by relying on Section 6 of the NIA Act, the learned counsel
2025:KER:30311
submitted that in the decision in Ali K. @ Ragam Ali v. Union of
India (2023 KHC 816), this Court has already held that the
Central Government has power under Section 6 (5) to direct the
NIA to investigate a scheduled offence which is brought to its
notice and which in its opinion requires to be investigated by the
NIA, even if the offence in respect of which no case has been
registered. Hence, he prayed that this appeal may be dismissed.
5. The first and foremost contention raised by the appellant is
regarding non intimation of grounds of arrest to him in writing. The
respondent does not dispute the fact that the appellant was not
informed in writing of the grounds of his arrest. It is true that in
Pankaj Bansal's case (cited supra), the Apex Court found that
unless a copy of written grounds of arrest is furnished to the
arrested persons, the arrest itself becomes vitiated.But, it is also to
be taken note that while ordering so, the Apex Court held that
such necessity will only be 'henceforth'. Subsequently, in the
2025:KER:30311
decision in Ram Kishor Arora's case (cited supra), the Apex Court
considered the decision in Pankaj Bansal's case (supra) and
categorically held that the judgment in Pankaj Bansal's case
(supra) will be prospective in operation. In the decision in Prabir
Purkayastha's case (supra) and Vihaan Kumar's case (supra), the
dictum laid down in Pankaj Bansal's case (supra) was made
applicable to the accused since the arrest in those cases were
made after rendering of the judgment in Pankaj Bansal's case
(supra). In the present case, as stated earlier, the appellant has
been arrested on 2/8/2023 much before the pronouncement of the
judgment in Pankaj Bansal's case (supra). If so, we have no doubt
in our mind that the appellant is not entitled to the benefit of the
dictum laid down in Pankaj Bansal's case (supra).
6. Coming to the next contention of the appellant, by relying
on the decisions in Najeeb's case, Shoma Kanti's case and Athar
Parwez's case (all cited supra) that since he has undergone
2025:KER:30311
incarceration for a significant period of time and there is no
possibility of the trial being conducted in near future, he is entitled
to be released on bail, we are of the view that there is some merit
in it. It is an admitted fact that the appellant has been arrested as
early as on 2/8/2023 and that he is in custody therefrom. It is also
an admitted fact that as on today, charge has not been framed
against him and further investigation is going on in this case. It is
true that initially, a final report was filed in this case on 12/1/2024.
But, the records show that an order for further investigation has
been issued by the Trial Court on 27/3/2024 based on an
application filed by the prosecution as Crl.M.P.No.76/2024. Even
as per the final report filed, the prosecution has cited 147
witnesses, and 161 documents and 55 material objects have been
produced to substantiate the charge against the accused. In the
afore circumstances, we have no hesitation in our mind that the
trial in this case is not likely to commence and end in near future.
2025:KER:30311
In the decision in Najeeb's case (supra) of the Hon'ble Apex Court,
while considering the bail application of an accused involved in a
case charged inter alia under Sections 16,18,19 & 20 of UAPA and
who has undergone a long period of incarceration, held as follows:
"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 the
constitutional courts to grant bail on grounds of
violation of Part III of the Constitution. Indeed,
both the restrictions under a statute as well as the
powers exercisable under constitutional jurisdiction
can be well harmonised. Whereas at
commencement of proceedings, the 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
2025:KER:30311
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."
While holding so,the court also considered and observed that
Section 43-D(5)of UAPA is comparatively less stringent than
Section 37 of the NDPS Act.
7.Subsequently, in the decision in Shoma Kanti Sen's case
(cited supra) the Apex Court by relying on the decision in Najeeb's
case (supra) and rejecting the contentions of the prosecution that
unless the conditions specified in section 43-D(5) of UAPA are
fulfilled the accused is not liable to be enlarged on bail, held thus:
"38. Relying on this judgement, Mr. Nataraj,
submits that bail is not a fundamental right.
Secondly, to be entitled to be enlarged on bail,
an accused charged with offences enumerated in
Chapters IV and VI of the 1967 Act, must fulfill
2025:KER:30311
the conditions specified in S.43D(5) thereof. We
do not accept the first part of this submission.
This Court has already accepted right of an
accused under the said offences of the 1967 Act
to be enlarged on bail founding such right on
Art.21 of the Constitution of India. This was in
the case of Najeeb(supra), and in that judgment,
long period of incarceration was held to be a
valid ground to enlarge an accused on bail in
spite of the bail - restricting provision of
S.43D(5) of the 1967 Act. Pre - conviction
detention is necessary to collect evidence (at the
investigation stage), to maintain purity in the
course of trial and also to prevent an accused
from being fugitive from justice. Such detention
is also necessary to prevent further commission
of offence by the same accused. Depending on
gravity and seriousness of the offence alleged to
have been committed by an accused, detention
before conclusion of trial at the investigation and
post - chargesheet stage has the sanction of law
broadly on these reasonings. But any form of
2025:KER:30311
deprival of liberty results in breach of Art.21 of
the Constitution of India and must be justified on
the ground of being reasonable, following a just
and fair procedure and such deprival must be
proportionate in the facts of a given case. These
would be the overarching principles which the
law Courts would have to apply while testing
prosecution's plea of pre - trial detention, both at
investigation and post - chargesheet stage."
8.The same principle was also followed by the Apex Court in
Javed Gulam Nabi Shaikh's case and Athar Parwez' case (all cited
supra). In the decision in Athar Parwez's case, the Apex Court after
discussing Najeeb's case, went on to observe as follows:
"At the initial stage, the legislative policy needs
to be appreciated and followed by the Courts.
Keeping the statutory provisions in mind but
with the passage of time the effect of that
statutory provision would in fact have to be
diluted giving way to the mandate of Part III of
the Constitution where the accused as of now is
2025:KER:30311
not a convict and is facing the charges.
Constitutional right of speedy trial in such
circumstances will have precedence over the
bar/strict provisions of the statute and cannot
be made the sole reason for denial of bail.
Therefore, the period of incarceration of an
accused could also be a relevant factor to be
considered by the constitutional courts not to be
merely governed by the statutory provisions."
In the light of the above settled principles of law laid down by the
Apex Court and considering the facts and circumstances of this
case as narrated afore, we are of the view that this is a fit case
where the appellant, who is undergoing incarceration since
02.08.2023, can be released on bail. At this juncture, we will also
take note of the fact that the 5th accused in this case, who was
charged under Section 19 of UAPA and Section 212 of IPC, has
already been granted bail by the Apex Court, after a period of 11
months' incarceration, by taking into consideration the fact that
2025:KER:30311
the trial is not likely to commence in near future.
In the result, Criminal Appeal No.2362/2024 is allowed as
follows:-
i) The appellant/3rd accused shall be released on bail on
executing a bond for a sum of Rs.1,00,000/- (Rupees One lakh
only) with two solvent sureties for the like sum each to the
satisfaction of the Special Court for the trial of NIA cases,
Ernakulam. It shall be open to the Special Court to impose such
additional conditions as it may deem fit and necessary in the
interest of justice. However, the conditions shall mandatorily
include the following:
a) If the appellant/3rd accused intend to leave State of
Kerala, he shall obtain prior permission from the Special
Court.
b) If the appellant/3rd accused is in possession of any
passport, he shall surrender the same before the Special
Court, forthwith.
2025:KER:30311
c) The appellant/3rd accused shall furnish to the
Investigating Officer of the NIA his complete and current
residential address, including any changes thereto, and
shall ensure that the same remains updated at all times.
d) The appellant/3rd accused shall use only one mobile
number during the period of bail and shall communicate
the said number to the Investigating Officer of the NIA. He
shall remain accessible on the said number throughout the
duration of bail and shall not, under any circumstances,
switch off or discard the device associated with it without
prior intimation.
e) The appellant/3rd accused shall report before the Station
House Officer of the Police Station having jurisdiction over
his place of residence on every first and third Saturdays,
without fail.
f) The appellant/3rd accused shall not tamper with
evidence or attempt to influence or threaten any witnesses
in any manner.
2025:KER:30311
g) The appellant/3rd accused shall not engage in or
associate with any activity that is similar to the offence
alleged against him or commit any offence while on bail.
ii) In the event of any breach of the aforesaid conditions or of
any other condition that may be imposed by the Special Court in
addition to the above, it shall be open to the prosecution to move
for cancellation of the bail granted to the appellant/3rd accused
before the Special Court, notwithstanding the fact that the bail was
granted by this Court. Upon such application being made, the
Special Court shall consider the same on its own merits and pass
appropriate orders in accordance with law.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
P.V.BALAKRISHNAN
dpk JUDGE
