Suhail Ahmed Bhat vs N.I.A
2022 Latest Caselaw 17125 P&H

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH
211
                                      CRA-D No.483 of 2021
                                      Date of Decision: December 19th, 2022
Suhail Ahmed Bhat
                                                                     ...Appellant
                                     Versus

National Investigation Agency, New Delhi
                                                                  ...Respondents

CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH
       HON'BLE MR. JUSTICE ALOK JAIN

Present:    Mr. Navkiran Singh, Advocate
            for the appellant.

            Mr. Sukhdeep S. Sandhu, Advocate
            for the respondent.

AUGUSTINE GEORGE MASIH, J.

In this appeal, challenge has been posed to the order dated

23.08.2021 passed by the Special Judge, National Investigating Agency

(hereinafter referred to as 'NIA'), Punjab, S.A.S. Nagar (Mohali), vide which

application filed by the appellant for grant of regular bail under Section 437

Cr.P.C. stands dismissed.

2. It is the contention of learned counsel for the appellant that the

appellant has been falsely implicated in this case. He is only a student and was

not named in the FIR. His involvement is based upon the disclosure statement

of the co-accused, which is inadmissible in evidence. That apart, he asserts that

since no recovery has been effected from the appellant in person, the

involvement of the appellant cannot be said to be supported by any evidence,

especially when there is no other corroborated evidence which supports the

case of the prosecution. The evidence which is being sought to be pressed into

service against the appellant is inadmissible in law and, therefore, the same

cannot be made the basis for proceeding against the appellant. The disclosure

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statement, which has been made the basis on the part of the appellant, was

by threat and inducement as the same was in the presence of the police

officials when his statement was recorded and, therefore, by virtue of

Section 24 of The Indian Evidence Act, 1872, such statement would be

irrelevant and not admissible in Court of law. In any case, where no

discovery has been effected on the basis of the disclosure statement, such

type of evidence is a weak type of evidence, which when surrounded by

doubtful circumstances, cannot be relied upon by the Court casting a cloud

of confusion, which benefit of doubt should be given to the accused. It has

been submitted by the counsel for the appellant that speedy trial and

disposal of the case is embodied in the Constitution as a fundamental right.

Article 21 of the Constitution having been hit, the appellant would be

entitled to be released on bail, especially when out of total 69 witnesses,

only 36 witnesses have been examined and the appellant is in custody since

11.10.2018, which is more than four years, with the evidence not likely to

be concluded in near future and the trial not progressing at good pace,

would entitle him to the grant of benefit of bail. In support of this

contention, counsel for the appellant has placed reliance upon the judgments

of the Hon'ble Supreme Court in Union of India Versus K.A. Najeeb 2021

(3) SCC 713, Jahir Hak Versus State of Rajasthan 2022 (2) R.C.R. (Crl.)

746, Angela Harish Sontakke Versus State of Maharashtra 2021 (3) SCC

723, Sagar Tatyaram Gorkhe and another Versus State of Maharashtra

2021 (3) SCC 725, State of Kerala Versus Raneef 2011 (1) SCC 784. He on

this basis contends that the factum of undue delay in the progress of the trial

and the long incarceration of the appellant having been ignored by the

Special Judge renders the order impugned unsustainable and thus deserves

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to be set aside.

3. On the other hand, learned counsel for the respondent has

contended that the trial is proceeding at a reasonable rate. He asserts that in

the light of the provisions as contained under Section 43D (5) of

The Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as

'UAPA'), the appellant would not be entitled to the claim, as has been

made. He contends that the stringent provisions as contained in the said

Section would work against the relief which is being sought by the

appellant. Section 43D (5) of the UAPA provides for stringent provisions of

bail and when the Court is satisfied that prima facie case is made out against

an accused, the benefit of bail cannot be granted to the accused. On the

basis of the evidence, which has been collected against the appellant, he

would not be entitled to the benefit, as has been claimed. As regards the

submission of the counsel for the appellant with regard to the violation of

Article 21 of the Constitution of India, which guarantees a speedy trial to an

accused, counsel for the Investigating Agency has submitted that the benefit

of Article 21 is not an absolute one but the same is qualified. It is only when

justifiable reasons are made out that such a relief can be granted, especially

when it can be said on facts that the trial is not proceeding. It is an admitted

position that more than half of the witnesses have already been examined.

It has been pointed out by learned counsel for the respondent that the crucial

witnesses, who are protectees, are yet to be examined and in case the

appellant is released on bail, with the witnesses being residents of the same

State, to which the appellant belongs, the likelihood of his interference in

evidence and influencing the course of trial by threatening the witnesses is

quite possible. Counsel for the respondent has placed reliance upon the

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judgment of the Hon'ble Supreme Court in Mamta and another Versus

State (NCT of Delhi) and another 2022 (3) R.C.R. (Criminal) 139,

Narcotic Control Bureau Versus Mohit Aggarwal 2022 (3) R.C.R. (Crl.)

985, State through C.B.I. Versus Amaramani Tripathi 2005 (8) SCC 21. He

on this basis has supported the order passed by the trial Court rejecting the

bail application of the appellant.

4. We have considered the submissions made by the counsel for

the parties and with their assistance, have gone through the impugned order

dated 23.08.2021 passed by the Special Judge, NIA, as also the pleadings

and the evidence which has been placed on record and produced in Court.

5. Briefly the facts are that an input was received from reliable

sources on 10.10.2018 that three students namely Zahid Gulzar son of

Shri Gulzar Ahmed Rather, Yasir Rafiq Bhat son of Mohammad Rafiq Bhat

and Mohammad Idriss Shah son of Abdul Qayoom Shah, all residents of

District Pulwama, Jammu and Kashmir, and are located at Room No.94,

Hostel of CT Institution at Shahpur Campus, Jalandhar, were in possession

of arms, ammunition and explosives, planning to carry out some unlawful

activity to destabilize the law and order situation in the State. They are

associated with terrorist gang namely Ansar Ghazwat-Ul-Hind (hereinafter

referred to as 'AGH') and had been receiving fund for carrying out unlawful

activities including recruiting other students of the college in their terrorist

gang. FIR No.166/2018 dated 10.10.2018 under Sections 121, 121-A, 120-

B IPC, Section 25 of the Arms Act, 1959, Sections 3, 4 and 5 of the

Explosive Substances Act, 1883 and Sections 10, 13, 17, 18-B, 20, 38, 39

and 40 of the UAPA was registered at Police Station Sadar Jalandhar.

During investigation, as per the statements which have been recorded by

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NIA, it came to light that the appellant was the person, who had motivated

and made Zahid Gulzar (A-1) to join the terrorist gang AGH for carrying

out Jihad against India to establish Islamic rule. He had facilitated

communication between Zahid Gulzar and AGH Chief Zakir Musa (A-8)

over Telegram Messenger application by sharing User ID of both these

persons. Zakir Musa was also able to give instructions to Zahid Gulzar to

first collect explosive consignment from Gurdaspur on 03.08.2018 and

thereafter second consignment from Amritsar on 07.10.2018, which was

recovered during the raid. Disclosure statements of Zahid Gulzar (A-1) and

Suhail Ahmed Bhat (A-4) were recorded in the presence of three

independent witnesses, one of whom was the Executive Magistrate. In the

presence of these witnesses, they voluntarily gave the detailed account as to

how the whole process of induction of Zahid Gulzar in AGH, his

communication with Zakir Musa, instructions of Suhail Ahmed Bhat and

Zakir Musa, collection of arms and ammunition etc. was being carried out.

The corroborative evidence is in the form of recovered arms and

ammunition from the places, which were disclosed. Suhail Ahmed Bhat, the

appellant, in his statement had given detailed account as to how he along his

companion, came to Derabassi and did recce of the area but could not throw

the bomb on the Police Station because it was a thickly populated area and

they were likely to be arrested and thereafter on instructions from

Zakir Musa, head of the AGH, visited ISBT, Sector 17 and 43, Chandigarh,

but were unable to throw the bomb. The tower location established that the

appellant was at Chandigarh. The pictures and video recovered from the

seized laptop of the appellant showed his involvement and inclination

towards terrorism. The statement of the prosecution witnesses, who are from

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Jammu and Kashmir and has not yet been recorded, although being

protectees, are likely to be criminally intimidated in case the appellant is

released on bail. His likelihood of fleeing to Pakistan since the crime is

sponsored by the said country, with the base of the gang being there, if

released on bail, is very much there and it would be impossible to secure his

presence for facing trial. All the evidence which has been collected by the

prosecution agency clearly establishes the involvement of the appellant in

the commission of the offence.

The plea of the counsel for the appellant, with regard to the

recovery having been effected from the father of the appellant and not from

the appellant himself, suffice it to say that the said recovery has been

effected from the house of the appellant in Kashmir and it is so stated that

the laptop belongs to him. The downloaded content points a finger to the

motive of the appellant and his inclination towards terrorism. The said plea,

therefore, of the counsel for the appellant cannot be accepted.

6. As regards the statement recorded under Section 27 of the

Indian Evidence Act by the police to be inadmissible, suffice it to say that

the said statement has been recorded in the presence of the

Executive Magistrate and two other independent witnesses. Therefore,

prima facie, the said assertion of the counsel for the appellant also cannot be

accepted as it would be dependent upon the statement and

cross-examination of the Executive Magistrate and the other two

independent witnesses. At this stage, nothing more is required to be stated

on this count.

7. There is ample evidence which connects the appellant with the

offence for which he has been charge-sheeted and keeping in view the strict

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provisions as contained under Section 43D (5) of the UAPA, there is

reasonable ground for the Court to believe and form an opinion that the

accusation against the appellant is prima facie true.

8. The aspect with regard to violation of Article 21 of the

Constitution of India as he is being denied speedy trial, especially when he

is in custody for more than four years, suffice it to say that merely because a

person is in custody and that too for quite some time would not in itself be a

ground for coming to a conclusion that the trial has been delayed for a long

period. The gravity of the offence, the role of the accused, the evidence

collected, the severity of punishment in case of conviction need to be taken

note of. The reasonable apprehension of the accused tampering with the

evidence in the form of influencing, threatening or putting pressure on the

witnesses in the given facts and circumstances, has also to be kept in mind.

The aspect with regard to the seriousness of the offence for which an

accused is charged and in case he is granted bail, indulgence in various

activities of similar nature, apprehension thereof also could be other factors

which may weigh on the mind of the Court. Obviously balancing the right

of the accused vis-à-vis the prosecution has to be carried out.

It may be noted here that at the stage of granting bail, a detailed

examination of the evidence, elaborate documentation on merit of the case

need not be undertaken and only a prima facie opinion has to be formed by

the Court for exercising its discretionary powers.

9. When all these factors are taken note of in the present case,

where more than half of the witnesses have been examined, there are serious

allegations where the safety and security of the country is being sought to be

put to peril, with there being prima facie evidence indicating involvement of

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the appellant, the appeal of the appellant deserves to be rejected. However,

keeping in view the custody period of the appellant, a direction is issued to

the Special Judge, NIA, S.A.S. Nagar (Mohali) to expedite the trial and

conclude the same by giving very short dates.

9.           The      appeal       stands       dismissed        with       above

observations/directions.

10. Any observation made hereinabove in this order shall have no

bearing on the trial or merits of the main case.

                                       (AUGUSTINE GEORGE MASIH)
                                               JUDGE



December 19th, 2022                                (ALOK JAIN)
Puneet                                               JUDGE


                   Whether speaking/reasoned:        Yes

                   Whether Reportable:               No




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