Jameel Ahmad S/O Sh. Haji Khalil ... vs State Of Rajasthan
2023 Latest Caselaw 4527 Raj/2

[2023:RJ-JP:20389]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

     S.B. Criminal Miscellaneous Bail Application No. 15015/2021

Jameel Ahmad S/o Sh. Haji Khalil Ahmad Bakhad, Aged About
50 Years, R/o 138 Ward No. 9 Vayapari Mohalla Kasba / Block -
Fathepur Dist. Sikar Raj. Present Address Flat No. 203 Royal
Palace Building Vill. Dahanu Dist. Palgarh Maharashtra Presently
Lodged In Central Jail Jaipur
                                                                      ----Petitioner
                                         Versus
State Of Rajasthan, Through PP
                                                                    ----Respondent

For Petitioner(s)            :     Mr. Ashok Agarwal with
                                   Mr. Nitesh Vyas
                                   Mr. Mujahid Ahmad
                                   Mr. Farooq Ahmad
For Respondent(s)            :     Mr. Rajesh Maharshi, AAG with
                                   Mr. Devanshu Saini



             HON'BLE MR. JUSTICE ANIL KUMAR UPMAN



                                     ORDER
Order pronounced on                :::               04/09/2023
Order reserved on                  :::              27/07/2023

1. The instant bail application has been filed under Section 439

Cr.P.C. on behalf of the accused-petitioner Jameel Ahmad who has

been in custody since 15.11.2016 in connection with FIR

No.08/2016 registered at Police Station ATS & SOG, Rajasthan

Jaipur for offences under Sections 17, 18, 20, 39 and 40 of The

Unlawful Activities (Prevention) Act, 1967. After investigation, the

police has filed chargesheet in this matter before the learned court

below wherein the trial is at the stage of prosecution evidence.

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2. It is contended by learned counsel for the petitioner that the

accused petitioner has falsely been implicated in this case. He

contended that there is no evidence available on the record of the

case to connect the accused petitioner with the allegations levelled

against him. The petitioner was arrested in connection with the

aforesaid FIR on 15.11.2016 and since then, he is languishing in

jail. He further contended that out of 33 cited witnesses, 31

witnesses have been examined so far and from the last so many

dates, prosecution has failed to produce the witness for recording

their testimony inspite of the fact that the petitioner is languishing

in jail for last six years and nine months. He contended that the

co-accused Mohd. Iqbal has been granted bail by a Coordinate

Bench of this Court vide order dated 17.01.2023 passed in S.B.

Criminal Misc. Third Bail Application No.15689/2022n (Mohammad

Iqbal vs State of Rajasthan). He contended that period of custody

is always a relevant consideration for grant of bail. Learned

counsel placed reliance on the following judgments:-

(i). Ashim @ Ashim Kumar Haranath Bhattacharya @ Asim

Harinath Bhattacharya @ Aseem Kumar Bhattacharya vs

National Investigation Agency : reported in 2022 1 SCC 695

(ii). Union of India vs K.A. Najeeb : reported in 2021 3 SCC 713

(iii). Iqbal Ahmed Kabir Ahmed vs State of Maharashtra :

MANU/MH/2082/2021

3. He thus, prayed that the instant bail application may be

accepted and the petitioner may be released on bail in connection

with the aforesaid FIR.

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4. Per contra, learned AAG Shri Rajveev Maharshi, vehemently

and fervently opposed the bail application. He submitted that the

petitioner is having anti-national ideology. He contended that the

petitioner is the key person who provided financial assistance to

the banned organization ISIS, which was used by the terrorist

group to do terrorist activities. He also contended that the accused

petitioner is involved with terrorist groups via social media and he

expressed his pleasure (likes) as well as satisfaction over the

demolition of a holy shrine and carnage, done by the ISIS and

were liked by him. He further contended that in view of proviso t

to sub-section (5) of Section 43D of the Act, bail should not be

granted to an accused, if the Court, after perusal of the case diary

or the report made under Section 173 of the Code, is of the

opinion that there are reasonable grounds for believing that the

accusation against such person is prima facie true. He thus,

sought dismissal of the instant bail application. He relied upon the

followed judgments:-

(i). Sartaj Khan vs State of Uttarakhand : reported in 2022 SCC

online SC 360

(ii). Raan Singh vs Union of India : D.B. Criminal Appeal

No.389/2019, decided on 17.01.2022

(iii). Sheikh Javed Iqbal vs State of U.P. : Criminal Misc. Bail

Application No.2282/2021, decided on 03.04.2023 by

Allahabad High Court (Lucknow Bench) : MANU

/UP/0573/2023

(iv). Suresh Virpakshappa Dambal vs State : 2022 Livelaw (Kar)

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5 I have heard and considered the submissions advanced by

counsel for the petitioner as well as learned AAG and perused the

material available on record.

6. According to the prosecution story, the petitioner was settled

at Dubai and some funds were made available to him by the

co-accused Mohd. Iqbal through Hawala. However, the said

co-accused Mohammad Iqbal has been granted bail by Coordinate

Bench of this Court vide order dated 17.01.2013. It is further

alleged against the petitioner that funds which were made

available to him by the co-accused were further transferred by

him to terrorist organization ISIS through Western Union Money

Transfer. PW 20 Sikander and PW.21 Harun, who were projected

by the prosecution to establish the fact that money was

transferred to the accused petitioner Mohd. Iqbal through Hawala

has not supported the prosecution case and they have been

declared hostile. It is also evident from record that the petitioner

is languishing in jail since 15.11.2016 and the prosecution is not

producing the witnesses and the trial is still at the stage of

prosecution evidence. The record reveals that statements of only

two witnesses have been recorded during last eight months and as

such, possibility that trial will take long time in it conclusion,

cannot be ruled out. This lethargic attitude of the prosecution is

seriously violating the fundamental right of the speedy trial of the

petitioner as guaranteed under Article 21 of the Constitution of

India and in such a situation, the conditional liberty must override

the statutory embargo. In the case of Jahir Hak vs State of

Rajasthan : (2022) 0 AIR (SC) 3047, indulgence of bail was

[2023:RJ-JP:20389] (5 of 7) [CRLMB-15015/2021]

extended to the accused therein by the Hon'ble Apex Court by

considering the following observations made by in the case of

Union of India vs K.A. Najeeb (2021) (3) SCC 713:-

"12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156], Babba v. State of Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v. State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.

19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43- D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by abscission, etc."

[2023:RJ-JP:20389] (6 of 7) [CRLMB-15015/2021]

7. It has also been observed by Hon'ble Apex Court that the

condition in Section 43D(5) of the Act of 1967 has been

understood to be less stringent than the provisions contained in

Narcotic Drugs and Psychotropic Substances Act, 1985 because

unlike the NDPS Act where the competent court needs to be

satisfied that prima facie the accused is not guilty and that he is

unlikely to commit another offence while on bail; there is no such

precondition under UAPA.

8. In view of the aforesaid discussion, I am of the opinion that

the instant application for bail under Section 439 Cr.P.C. deserves

acceptance. Accordingly, the instant bail application is allowed and

it is hereby directed that the accused petitioner Jameel Ahmad S/o

Shri Haji Khalil, who has been arrested in connection with FIR

No.8/2016, registered at Police Station ATS & SOG, Jaipur

Rajasthan shall be released on bail provided he furnishes a

personal bond in the sum of Rs.3,00,000/- together with two

sureties in the sum of Rs.1,50,000/- each to the satisfaction of the

learned trial court with the stipulation that he shall appear before

that Court and any court to which the matter is transferred, on all

subsequent dates of hearing and as and when called upon to do

so. In addition to above, the bail is granted to the petitioner

subject to following conditions:-

1. That he shall not involve in similar offence(s) in future.

2. That he shall mark his attendance twice a month before the

concerned police station i.e., on every 15th and last day of

the month.

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3. That he will provide his mobile number, if any, to the

Investigating Agency within ten days from his release.

4. That he will surrender his passport, if any, to the trial court

within ten days from his release

5. That he will provide his permanent residential address to the

Investigating Agency and if he changes his address, he will

inform in this regard to the Investigating Agency as well as

the trial court.

6. That the petitioner shall cooperate in expeditious disposal of

the trial.

7. In the event, the petitioner violates any of the aforesaid

conditions, the relief of bail granted by this Court will be

liable to be cancelled.

9. The learned trial court is directed to conclude the trial

expeditiously preferably within six months from today and no

unnecessary adjournments shall be given in this matter.

(ANIL KUMAR UPMAN),J

Sudhir Asopa/

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