High Court
Facts
{1} APEAL-357-2025IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD CRIMINAL APPEAL NO. 358 OF 20251.Sayyad Faisal Sayyad KhaleelAge- 29 years, Occ. Business,R/o. Mehmoodpura, Rozabaugh,Aurangabad, Tal & Dist. Aurangabad.2.Abdul Hadi s/o Abdul Rauf MominAge -33, Occ. Driver,R/o. Varun Apartment, Rehman Ganj,In front of Jawahar Garden Jalna,Tal & Dist. Jalna.….APPELLANTS[Orig. Accused No. 2 and 4] VERSUSThe State Of Maharashtra…..RESPONDENT …..Mr. N.R. Shaikh, Advocate for appellants Mrs. Kalpalata Patil Bharaswadkar, APP for State…..WITHCRIMINAL APPEAL NO. 357 OF 2025Shaikh Irfan Shaikh Salim Alias Irfan MilliAge-40 years, Occ. Urdi Tuitions,R/o.Makka Masjid Kiradpura, Aurangabad(Presently incarcerated AurangabadCentral Prison, for last 2 years) ...APPELLANT [Orig. Accused No. 1] VERSUSThe State Of Maharashtra.....RESPONDENT …..Mr. Javed R. Shaih and Mr. N.R. Shaikh, Advocate for AppellantMrs. Kalpalata Patil Bharaswadkar, APP for State.......Bhagyawant Punde {2} APEAL-357-2025 CORAM : NITIN B. SURYAWANSHI AND SANDIPKUMAR C. MORE, JJ. RESERVED ON: 18th JUNE, 2025 PRONOUNCED ON: 07th JULY, 2025ORDER : [PER NITIN B. SURYAWANSHI, J.]1.By these appeals filed under Section 21 of NationalInvestigation Agency Act, 2008 (“NIA Act” for short), appellantschallenge common order passed below Exhibits- 12,13 and 14 inSpecial Case No. 58/2023 by learned Additional Sessions Judge,Aurangabad, thereby refusing bail to them.2.On 21.09.2022 FIR is lodged by Rahul Rode,Assistant Police Inspector, Anti Terrorism Squad, Aurangabadalleging that, a secret information was received that on23.11.2021 near Jama Masjid of Chikalthana, training of karatewas arranged for Muslim youths. At that place a banner i.e.“Healthy People Healthy Nation” was displayed. In the saidprogram, Secretary Mohsin Nadvi of Popular Front of IndiaOrganization (“PFI” for short) has given a speech propagatingthat Muslims in India are subjected to mob lynching and CentralGovernment is attacking Muslim people through Hinduorganizations in different States. The coming period is difficultfor Muslims. Therefore, PFI is working for making Muslim youthsBhagyawant Punde
Legal Reasoning
{13} APEAL-357-2025Thus, prima facie, in our opinion, we cannot reasonably come toa finding that any case against the appellants under Section15(1) (b) of 1967 Act can be held to be true.”It is further observed that, “witness statements donot refer to any terrorist act alleged to have been committed bythe appellants. …….. Moreover, actual involvement of theappellants in any terrorist act has not surfaced from any of thematerial. ……. Mere participation in seminars by itself cannotconstitute an offence under the bail restricting Sections of theUAPA, with which they have been charged.”20.Coming to the facts of present case allegationsagainst appellants- Sayyad Faisal Sayyad Khaleel and Abdul Hadiare that, they were present in the workshop dated 3rd and 4thJuly, 2022, wherein Muslim youths were trained and encouragedto fight against Indian Government. They both gave hatespeeches propagating that Central Government is implementingCAA, NRC, Hijab Ban, Triple Talaq Ban, which are against Muslimreligion and their statements create unrest, discontent and incitethe mob.The appellants have conducted camps whereinappellant- Sayyad Faisal Sayyad Khaleel has givenBhagyawant Punde {14} APEAL-357-2025demonstration of different weapons. Video clips found in themobile of appellant- Irfan Milli are allegedly anti national. Hatespeeches and mob lynching videos about Babri Masjid were alsofound. 311 videos in one memory card and 1394 images werefound with appellant- Abdul Hadi.Weapons like sword, rampuri knife, fighter wererecovered from appellant- Irfan Milli along with book againstjudicial system and electronic gadgets. Keeping in mind the observations of the Apex Courtin Vernon (supra) in absence of allegations of any overt act ofviolation and terrorist activities, mere participation inseminars/camps, prima facie, would not amount to terrorist act.Though, weapons are recovered from appellant-IrfanMilli, it is not the case of prosecution that those were used forany terrorist activity and/or for toppling the Government. 21.Since the trial is in progress, we refrain fromcommenting upon merits of the allegations levelled against theappellants. Suffice it to say that, no material is brought to ournotice showing involvement of appellants in any terrorist activity.22.On the ground of parity also the appellants areentitled for bail as co-accused in the present crime Shaikh UmerBhagyawant Punde {15} APEAL-357-2025is released on bail by the Apex Court. We do not find any meritin the submission of learned APP that he was not named in theFIR and was subsequently arrayed as accused. Fact remains thathe is arrayed as accused in the present crime along with otheraccused persons and all the accused are charged under Sections121A, 122, 153A, 120B, 109, 116, 201 of IPC, under Section13(1)(b) of UAPA and Section 4 read with 25 of Arms Act andunder Section 135 of Maharashtra Police Act.23.In Barakathullah (supra), Apex Court held;“ 22. In the instant case, we are satisfied from thechargesheet as also the other material/documentsrelied upon by the appellant that there arereasonable grounds for believing that theaccusations against the respondents are primafacie true and that the mandate contained in theproviso to Section 43(D)(5) would be applicable fornot releasing the respondents on bail. Havingregard to the seriousness and gravity of thealleged offences, previous criminal history of therespondents as mentioned in the charge-sheet, theperiod of custody undergone by the respondentsbeing hardly one and half years, the severity ofpunishment prescribed for the alleged offences andprima facie material collected during the course ofinvestigation, the impugned order passed by theHigh Court cannot be sustained. We are consciousof the legal position that we should be slow ininterfering with the order when the bail has beengranted by the High Court, however it is equallywell settled that if such order of granting bail isBhagyawant Punde {16} APEAL-357-2025found to be illegal and perverse, it must be setaside.23. This Court has often interpreted the counterterrorism enactments to strike a balance betweenthe civil liberties of the accused, human rights ofthe victims and compelling interest of the state. Itcannot be denied that National security is always ofparamount importance and any act in aid to anyterrorist act – violent or non-violent is liable to berestricted. The UAPA is one of such Acts which hasbeen enacted to provide for effective prevention ofcertain unlawful activities of individuals andassociations, and to deal with terrorist activities, asalso to impose reasonable restrictions on the civilliberties of the persons in the interest ofsovereignty and integrity of India.”In the present case, prima facie, we do not findreasonable grounds for believing that accusations against theaccused are true. Therefore, mandate contained in proviso toSection 43(D)(5) would not be applicable to the case of accused.The prosecution could not point out criminal antecedents ofappellants. Section 13(1)(b) prescribes maximum punishment of7 years, out of which appellants have already undergone 2 yearsand 8 months imprisonment. 24.Taking into consideration the fact that there are total145 witnesses cited by the prosecution and though trial is beingconducted on day to day basis, so far only five witnesses areBhagyawant Punde {17} APEAL-357-2025examined and accused are in jail since more than two years andeight months, there appears no likelihood of trial beingconcluded in the near future. In National Investigation Agency v.Zahoor Ahmad Shah Watali13, the Apex Court has held that,“Long incarceration and unlikely likelihood of trial beingcompleted in near future has also been taken as a ground forexercising its constitutional role by the Constitutional Courts togrant bail on violation of Article 21 of the Constitution of Indiawhich guarantees trial to be concluded within a reasonabletime.”On this ground also, appellants are entitled for bail.25.In the light of the aforesaid, we are inclined to allowthe appeals.26.The appeals are allowed with a direction thatappellants be released on bail on appropriate terms andconditions to be fixed by the Special Court. 27.The appellants shall surrender their passports, if any,and shall attend the Special Court on each and every date fixedand shall co-operate with the Special Court for early disposal ofthe case.13(2019) 5 SCC 1Bhagyawant Punde {18} APEAL-357-202528.The appellants shall be produced before the SpecialCourt on 10th July, 2025.29.The Special Court shall enlarge the appellants on bailon appropriate stringent terms and conditions including theconditions mentioned above. Learned APP shall be heard on theterms and conditions.(SANDIPKUMAR C. MORE, J.) (NITIN B. SURYAWANSHI, J.) Bhagyawant Punde
Arguments
{3} APEAL-357-2025physically capable. Similar program was held by PFI on27.11.2021 at Samosa Ground, Katkat Gate, Aurangabad. In thesaid program, District President of PFI Irfan Milli and GeneralSecretary Saber were present. They stated in their speeches thatpresent period is difficult for Muslim community. IndianGovernment is daily conspiring against Muslims. Therefore with aview to resist the Indian Government with arms they areconducting camps. Therefore, Muslim youths should becomemembers of PFI on large scale.3.As per the secret information received from thesources on 3rd and 4th July, 2022, PFI had arranged arms andphysical training at a hall in front of Masjid-a-Mansab Mir atNaregaon. In the said workshop District President of PFI ImranShaha and other followers of PFI were present. Except limitedtrainees nobody else was allowed there. It was learnt that in thesaid workshop Muslim youths were trained and encouraged tofight against Indian Government with arms and might to protectMuslim religion. It is also learnt that Managing Committeemembers of PFI namely Sayyad Faisal Sayyad Khaleel resident ofAurangabad and Abdul Hadi, resident of Jalna (appellants inAppeal No. 358/2025) and Parvez Khan, resident of AurangabadBhagyawant Punde {4} APEAL-357-2025gave hate speeches propagating that Central Government isimplementing CAA, NRC, Hijab Ban, Triple Talaq Ban, which areagainst Muslim religion. They make statement which createunrest, discontent and incite the mob. They call upon Muslimpeople to fight with arms and to commit Jihad.4.On 14.08.2022 a get together of Ulema was heldunder the campaign “Save The Republic”. In that programMaulana Irfan Milli and Maulana Nasir Nadvi were present. In thesaid program speeches were given creating discontent anddisaffection against the Central Government. A fake narrativewas propagated that through NRC Muslim community is beingharassed and by the violent action 20 Lakh Muslim communitypeople are tried to be killed. It is also learnt that they areexpressing their intention to establish new Government on thebasis of Sharia law and for that purpose they are encouragingMuslim youths to store arms and if necessary aid can be takenfrom other countries.5.The FIR is registered at ATS, Kalachowki PoliceStation, Mumbai for offences punishable under Sections 13(1)(b) of the Unlawful Activities (Prevention) Act, 1967 (“UAPA” forshort), under Sections 121A, 153A, 120B, 109, 116, 201 of IPCBhagyawant Punde {5} APEAL-357-2025and Section 4 read with 25 of Arms Act and under Section 135 ofMaharashtra Police Act.6.Pursuant to the registration of crime appellants cameto be arrested on 22.09.2022. During the course of investigationmaterial connecting ISIS was allegedly found with appellants.Document namely “India 2047 towards rule of Islam in India,internal Document not for circulation” was also found withappellant- Sayyad Faisal . So also one book in Urdu language byname “Babri Masjid Kahi Hum Bhul Na Jaye” was found.7.On completion of investigation charge sheet came tobe filed by prosecution in the month of February-2023 underSections 121A, 122, 153A, 120B, 109, 116, 201 of IPC, Section13(1)(b) of UAPA, Section 4 read with 25 of Arms Act and underSection 135 of Maharashtra Police Act. Appellant Shaikh IrfanShaikh Salim Alias Irfan Milli is arrayed as Accused No. 1 andAppellants- Sayyad Faisal Sayyad Khaleel and Abdul Hadi AbdulRauf Momin are arrayed as Accused No. 2 and 4 in the chargesheet. The case is numbered as Special Case No. 58 of 2023. 8. Appellants preferred applications Exhibits-12, 13and 14, for bail, which are rejected by the Trial Court. Hence, thepresent appeal.Bhagyawant Punde {6} APEAL-357-20259.Heard learned advocates for the accused and learnedAPP for State.10.Learned advocate Mr. N.R. Shaikh, for appellants inCriminal Appeal No. 358/2025 by relying on the order of grantingbail to Shaikh Umer (co-accused in the present crime) by theApex Court submits that on the ground of parity, accused areentitled for bail.11.On merit, he submits that FIR is lodged on21.09.2022 and appellants are arrested on 22.09.2022, whereasPFI was declared as unlawful organization on 27.09.2022. Sowhen the FIR was lodged PFI was not unlawful organization andhence no offence can be said to have been committed by theappellants. He submits that from the appellants Hard disk andcell phone, some literature was seized. Nothing incriminatingwas found with the appellants. He submits that, there is nomaterial to show that there was any physical act of terrorism orovert act of violence at the time of conducting programs orthereafter. He submits that act of teaching karate is not an act ofterrorism within the definition of UAPA. According to him, thoughamount of Rs. 8,00,000/- was found in the account of theaccused, the same is not used for any terrorist activity. ByBhagyawant Punde {7} APEAL-357-2025relying on the Division Bench decision at Nagpur in MaheshKariman Tirki and Ors. v. State of Maharashtra1, he submits that,Section 43E of UAPA deals with recovery of arms or explosive orany other substance specified in Section 15 recovered from theappellants and used in the commission of terrorist Act. In termsof Section 15 UAPA seizure must be of some article used tocreate violence resulting in death, injury, damage, destructionetc. According to him unless there is seizure of bomb, explosiveetc., sub clause (a) of Section 43E of UAPA has no application atall. By relying on Mahesh Tirki (supra), Vernon vs TheState of Maharashtra & Another2 and Barkathullah v. Union ofIndia3, he submits that mere recovery of literature in absence ofallegation of overt act of violence and mere participation inseminars does not attract offences under UAPA. By relying onDevangana Kalita v. State of Delhi NCT4, he submits that, rightto protest against Government is a fundamental right. Even ifinflammatory speeches are given, that does not amount toterrorist act. He further submits that even if allegations ofprosecution are taken as it is at the most appellants can be said1AIROnline 2024 BOM 4982Criminal Appeal No. 639 of 20233AIR Online 2023 MAD 16794AIROnline 2021 Del 837Bhagyawant Punde {8} APEAL-357-2025to have committed offences punishable under the provisions ofIPC and Arms Act, for which two years and three yearsimprisonment is provided. Appellants have already undergonemore than two years imprisonment. Though, the Trial hascommenced, out of 145 witnesses cited by the prosecution, onlyfive witnesses are examined so far. Therefore, there is nolikelihood of trial concluding in near future. Therefore, by relyingon Jahir Hak v. State of Rajasthan5, Athar Parwez vs. Union ofIndia6, he submits that accused are entitled to be released onbail. 12.Learned advocate Mr. Javed R. Shaikh for appellant-Shaikh Irfan Shaikh Salim Alias Irfan Milli adopted thearguments of appellants Sayyad Faisal and Abdul Hadi. Inaddition, he submits that from appellant- Irfam Milli 7 inch knife,fighter, Rampuri knife and 1½ ft. sword were recovered. Itcannot be said that these arms were used by appellant fortoppling the Government. He submits that at the most offenceunder Arms Act can be said to be made out against appellantwhich is punishable with two years imprisonment. Appellant-Irfan Milli is in jail since two years and eight months and since5AIROnline 2022 SC 50162024 INSC 995Bhagyawant Punde {9} APEAL-357-2025trial is not likely to conclude in near future he may be releasedon bail.13.By referring to definition of terrorist acts he submitsthat there is no material on record to show that appellant hasindulged in any terrorist act. Therefore by relying on orderpassed in favour of co-accused Shaikh Umer he prays forreleasing the appellant on bail. In support of his submissions herelied on Jalaluddin Khan v. Union of India7, Javed Gulam NabiShaikh vs. State of Maharashtra and Others8, Union of India vs.K.A. Najeeb9, Mohd. Muslim alias Hussain vs. State (NCT ofDelhi)10 and Javed Ahmad Hajam vs. State of Maharashtra &Anr.11.14.Per contra, learned APP strenuously opposed theappeals. She submits that appellants are involved in unlawfulactivity against the State. National security is of foremostimportant. PFI is radical organization which was indulging inseditious activity. They were taking secret meetings. Materialseized from appellant Sayyad Faisal Sayyad Khaleel shows aboutmission of 2047. She submits that appellants are main accused.7AIRONline 2024 SC 5428(2024) 9 SCC 81392021 3 SCC 713102023 SCC OnLne SC 352112024 (4) SCC 156Bhagyawant Punde {10} APEAL-357-2025The case of Shaikh Umer is distinguishable from the case ofpresent appellants as he was not named in the FIR and his namewas subsequently added as accused in the charge sheet. Theseappellants arranged meetings and events, whereas Shaikh Umeronly asked people to attend events and raised slogans in theevents. She submits that appellants are responsible for delay inframing of the charge. So far as five witnesses are examined andtrial is being conducted on day-to-day basis. If the accused arereleased on bail they will tamper the prosecution evidence. Shetherefore submits that appellants are not entitled for bail. Insupport of her submissions she relied on Union of India rep. bythe Inspector of Police National Investigation Agency ChennaiBranch vs. Barakathullah etc12.15.Heard learned advocates for appellants and learnedAPP for State at length. Perused the record.16.Admittedly, when the FIR was lodged on 21.09.2022and appellants were arrested on 22.09.2022, PFI which was aregistered organization was not banned. It was banned for aperiod of five years by Government of India by GazetteNotification dated 28.09.2022.122024 SCC OnLine SC 1019Bhagyawant Punde {11} APEAL-357-202517.In Athar Parwez (supra) the Apex Court wasconsidering the case of active members of PFI for bail. In para27 of this citation it is observed; “in the chargesheet there is noallegation that the Appellant was a member of a terrorist gangor organisation. It is worth mentioning here that the PFI ofwhich the Appellant was a member has not been declared aterrorist organisation within the meaning of Section 2(m) of theUAPA, 1967. It was also found that the PFI is not mentioned as aterrorist organisation in the first schedule of UAPA, 1967. Thechargesheet and the statement of witness ‘Z’ when seen as it is,it would not be possible to record prima facie finding thatcommission of offence under the UAPA, 1967 would be attractedas there are no reasonable grounds for believing that theaccusations are prima facie correct.”18.The aforesaid observations are squarely applicable tothe case of appellants as in the present case also when the FIRwas registered and appellants were arrested, PFI was notdeclared a terrorist organization within the meaning of Section2(m) of UAPA. So also PFI was not mentioned in the firstschedule of UAPA. Merely because appellants participated in themeetings, seminars or physical training of karate etc., primaBhagyawant Punde {12} APEAL-357-2025facie, it cannot be said that they have indulged in any terroristact.In Athar Parwez (supra) also the document titled“India 2047 towards rule of Islam in India, internal document notfor circulation” was found and prosecution alleged that appellantalong with other members of PFI aimed at disrupting sovereigntyof India and cause disaffection against the country. The ApexCourt thus in similar circumstances granted bail to Athar Parwez.19.In Vernon (supra) the Apex Court has held that, “asregards the acts specified in Section 15(1)(b) thereof, some ofthe literature alleged to have been recovered from theappellants, by themselves give hint of propagation of suchactivities. But there is nothing against the appellants to primafacie establish that they had indulged in the activities whichwould constitute overawing any public functionary by means ofcriminal force or the show of criminal force or attempts by theappellants to do so. Neither there is allegation against them ofcausing death of any public functionary or attempt to causedeath of such functionary. Mere holding of certain literaturesthrough which violent acts may be propagated would not ipsofacto attract the provisions of Section 15(1)(b) of the said Act.Bhagyawant Punde