UT of J&K v. Zahid Rashid Ganie @ Zahid Methan

9. Firdous Ahmad Bhat S/O Mohd. Yousuf Bhat R/O Dharambugh Kralpora, Budgam.

10. Jehangir Ahmad Naiko S/O Gh. Mohd. Naiko R/O Meemander Shopian.

11. Sehran Muzaffar Dar S/O Muzaffra Ahmad Dar R/O Gopalpora Wathora, Budgam. .…. Respondent(s) Through: Mr. Wajid Mohammad Haseeb, Advocate. CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE M A CHOWDHARY, JUDGE 2 CrlA No. 19/2023 JUDGMENT PER: CHOWDHARY-J

01. The appellant-UT of Jammu & Kashmir has filed the present appeal under Section 21(4) of the National Investigation Agency Act, 2008, challenging the order dated 02.03.2023 passed by the learned Special Judge (Designated Court under NIA Act) Srinagar, whereby all the respondents/accused have been admitted to bail in a case arising out of FIR No. 08/2022 registered at Police Station, Chanpora, Srinagar for the commission of offences punishable under Section 13 of the Unlawful Activities (Prevention) Act, 1967.

02. The impugned order has been assailed on the grounds that the respondents/accused had been arrested in the aforesaid case registered at Police Station, Chanpora, Srinagar for the commission of offences punishable under Sections 13, 18, 18B, 39, 40 of the Unlawful Activities (Prevention) Act, 1967 as there were sufficient evidence connecting them in the commission of the aforesaid offences; that the trial court adopted a technical approach in granting bail to the respondents/accused persons as out of the thirteen (13) prosecution witnesses cited by the Investigating Agency in the chargesheet, none of the prosecution witnesses had been examined by 3 CrlA No. 19/2023 the trial court; unmindful of the statutory provision contained under Section 43(D) of the Unlawful Activities (Prevention) Act, 1967, which provided an express bar on granting bail to the accused persons when there are reasonable grounds for believing that the accusations against such persons are ‘prima facie’ true and enlarged the respondents/accused persons on bail on superfluous grounds which are not based on cogent reasons without appreciating the correct position of law.

03. It appears that the present appeal has been filed primarily on the ground that Section 43(D) of the Unlawful Activities (Prevention) Act, 1967 was applicable but the trial court has passed the impugned order, without appreciating the said provision.

05. Heard, perused and considered. All the respondents/accused had been granted bail by the trial court vide impugned order, after noticing that the provision of statutory bar contained under Section 43(D) of the Unlawful Activities (Prevention) Act, 1967 is not applicable in the case, in view of the fact that though the case was initially registered vide FIR No. 08/2022 for the commission of offences punishable under Sections 13, 18, 18B, 39, 40 of the Unlawful Activities (Prevention) Act, 1967, however, the trial court, during 4 CrlA No. 19/2023 consideration of charge, chargesheeted respondents/accused for the commission of offence punishable under Section 13 of the Unlawful Activities (Prevention) Act, 1967 only and discharged them from all other offences for which they were accused by the prosecution.

06. Section 43(D) of the Unlawful Activities (Prevention) Act, 1967 provides that no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the public prosecution has been given an opportunity of being heard on the application for such release and further that such accused person shall not be released on bail or on his own bond if the court, on a perusal of the case diary or the report made under Section 173 of the Code, is of the opinion that there are reasonable grounds believing that the accusation against such person is prime facie true.

07. The offence under Section 13 of the Unlawful Activities (Prevention) Act, 1967 of which the respondents/accused have been charged, does not fall within Chapters IV or VI of the Unlawful Activities (Prevention) Act, 1967, as such, the bar with regard to grant of bail as provided in terms 5 CrlA No. 19/2023 of sub section (5) of Section 43-D is not applicable to the case against the respondents/ accused. The offence under Section 13 of the Unlawful Activities (Prevention) Act, 1967 of which the respondents have been charged carries a punishment of maximum imprisonment upto seven years. Having regard to the factors governing bail, such as, nature of the accusation, gravity of the crime, possibility of facing trial by the accused fairly and apprehension of tampering of prosecution evidence, the trial court has exercised the discretion of grant of bail in favour of the accused.

08. The Apex Court in a case titled as “Bhagirath Singh Jadeja Vs. State of Gujrat” reported as AIR 1984 SC 372 has enunciated that interference with discretionary order for grant of bail cannot be done ordinarily. The High Court was held misdirected itself by cancelling the bail granted by the Sessions Court. The material consideration in such cases as observed by their lordships was whether the accused would be readily available for trial.

09. In view of the above and having regard to the fact that the rigor of sub-section (5) of Section 43(D) of the Unlawful Activities (Prevention) Act, 1967 is not applicable in the instant case, therefore, we do not find 6 CrlA No. 19/2023 any reason to show interference in the well-reasoned order passed by the trial court. Accordingly, the appeal, being without any merit and substance is hereby dismissed along with connected CrlM. Interim direction, if any, subsisting as on date, shall stand vacated.

10. JAMMU 21.11.2024 NARESH/SECY (M A CHOWDHARY) JUDGE (TASHI RABSTAN) CHIEF JUSTICE