Munshi v. Ve unjab State of Punjab
Case Details
CRA-D-404-20 2023 (O&M) IN THE H THE HIGH COURT OF PUNJAB A JAB AND HARYANA AT CHANDIGARH M) CRA-D-404-2023 (O&M) RESERVED ON: SEPTEM DATE OF DECISION:SEP PTEMBER 02, 2025 SEPTEMBER 12, 2025 Arshad Ali @ M li @ Munshi ...Appellant Versus Ve unjab State of Punjab ...Respondent CORAM: HO HON’BLE MR. JUSTICE DEEP HON’BLE MS. JUSTICE LAPIT HO DEEPAK SIBAL APITA BANERJI Mr. M.S. Rana, Advocate for the a Present : M Mr. Shekhar Verma, Addl. A.G., Pu Mr r the appellant. .G., Punjab. LAPITA BANE ANERJI, J. *** The appellant-Arshad Ali @ Mu The Munshi, has challenged the order dated Feb ed February 27, 2023, passed by Ad by Additional Sessions Judge, SAS Nagar, Mo Mohali, exercising the power of Sp r of Special Court, whereby his bail application ication in FIR No.02 of 05.02.2020 .2020 registered under Section 120-B of Indian Indian Penal Code (hereinafter referred eferred to as “IPC”), Section 25 of the Arms A rms Act, Sections 10,13,18,19,20 of of The Unlawful Activities (Prevention) Ac Act, 1967 (hereinafter referred to a ed to as “the UAPA”), at Police Station State Sp tate Special Operation Cell, District istrict SAS Nagar, Mohali has been dismissed. issed. 2. Learned counsel for the appellant Lea ellant submits that although it has been allege alleged that the appellant was involv involved in unlawful activities under UAPA bu PA but there was no recovery from th rom the appellant including any incriminating m ting material which could connect the the appellant to any offence, more so, to to any offence under UAPA. Ap A. Apart from the purported PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 1 of 22 CRA-D-404-20 2023 (O&M) statements of ch s of chance witnesses-Kulwinder Sing er Singh @ Kala, Amrik Singh and Nishant Sha nt Sharma, there is no evidence collec collected by the prosecution to connect the ap he appellant to commission of any f any crime. Furthermore, he submits that on hat only 01 out of 40 witnesses hav es have been examined by the prosecution des n despite passage of more than 05 y n 05 years by the appellant in custody. 3. In n support of his submissions, he he has placed reliance upon the judgments o ents of the Supreme Court in the ca the cases of Union of India v. K.A. Najeeb, eb, (2021) 3 SCC 713, Shoma ma Kanti Sen v. State of Maharashtra a ra and another, 2024 SCC OnLine Line SC 498, Vernon v. The State of Mahar aharashtra and another, 2023 SCC SCC OnLine SC 885, Sheikh Javed Iqbal @ A l @ Ashfaq Ansari @ Javed Ansari sari v. State of Uttar Pradesh, 2024 SCC OnL OnLine SC 1755 and Javed Gulam lam Nabi Shaikh v. State of Maharashtra a ra and another, 2024 SCC OnLine Line SC 1693, wherein it has been held that lo that long custody by itself would entit ld entitle the accused being tried under UAPA t PA to the grant of bail by invo invoking Article 21 of the Constitution of I on of India. 4. Per contra, learned State counsel s Per unsel submits that the appellant was involved i lved in anti national activities. Base . Based on secret information received by Har y Harinderdeep Singh, the then DSP S DSP SSOC, SAS Nagar, a case
Facts
under FIR No.0 No.0002 dated 05.02.2020 was regis s registered against the accused persons namely amely Dharminder Singh @ Guggn Guggni, Ashish Kumar, Javed, Parveen and Sus nd Sushil along with Arshad Ali @ M i @ Munshi (present appellant). He submits that ts that upon investigation, it was foun s found that one Ashish Kumar who had been been recently arrested by the Pun e Punjab police was a close PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 2 of 22 CRA-D-404-20 2023 (O&M) associate of the the main accused Dharminder S der Singh @ Guggni who is confined in Tih in Tihar Jail, Delhi being a member ember of Khalistan Liberation Force (KLF). T LF). The said organisation is banned anned under Sections 2(1) (m) and 35 of UAP UAPA. Arshad Ali @ Munshi-appel appellant supplied weapons to accused Ashish shish Kumar who then supplied the s the same to the main accused Dharminder Sin er Singh @ Guggni. The said weapo weapons are being used by the pro-Khalistani stani elements and criminal gangs angs in Punjab which disturb peace and tranqu tranquility in the State. The appellant ellant is the resident of U.P and he along with with Javed and Parveen had been been illegally supplying the weapons to Ash to Ashish Kumar for onwards supply supply to Dharminder Singh @ Guggni. The sa he said weapons are used for commi commission of serious offences like murders, d ers, dacoity, loots and extortion in ion in Punjab including target killings of prom f prominent leaders. Therefore, in view n view of the gravity and nature of the offence, ence, he should not be enlarged on ba on bail. Since all accused had the common int on intention of committing terrorist a orist act/s, none of them should be released on b d on bail. 5. He relies on decision of Apex C He pex Court dated February 07, 2024 in Gurwin rwinder Singh v. State of Punjab an and another, (2024) 2 SCC Criminal 676, t , to submit that Section 43-D (5) D (5) of the UAPA Act puts a complete embar embargo on the powers of Special Co ial Court to release the accused on bail and that d that the exercise of general power t ower to grant bail under UAPA is severely res restricted in scope. The relevan elevant extract is reproduced hereinafter: “xxx PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document 25. A bare reading of Sub-sec shows that apart from the fact th sh section (5) of Section 43D ct that Sub-section (5) bars a Page 3 of 22 CRA-D-404-20 2023 (O&M) Special Court from releasing an Sp af affording the Public Prosecutor he heard on the application seeking bail, the proviso to Sub-section ( ba complete embargo on the power c re release an accused on bail. It lay ‘on perusal of the case diary o ‘o section 173 of the Code of Crimi se op opinion that there are reasonab that the accusation, against su th commission of offence or offences co Ch Chapter VI of the UAP Act is accused person shall not be relea ac bond. It is interesting to note th bo pr provision traceable in any other s Se Section 43D (5) of the UAP Act. I of bail limitation adopted therei of UAP Act. U an accused on bail without utor an opportunity of being king release of an accused on ion (5) of Section 43D puts a wers of the Special Court to t lays down that if the Court, ry or the report made under riminal Procedure’, is of the onable grounds for believing st such person, as regards nces under Chapter IV and/or ct is prima facie true, such eleased on bail or on his own te that there is no analogous her statute to the one found in ct. In that sense, the language erein remains unique to the 26. The conventional idea in ba 26 or ordinary penal offences that the til tilt in favour of the oft-quoted phr is the exception’ – unless circums is do does not find any place while deal un under UAP Act. The ‘exercise’ grant bail under the UAP Act gr sc scope. The form of the words us 43 43D (5) – ‘shall not be released’ of the words as found in section of re released’ – suggests the intenti m make bail, the exception and jail, Xxx Xx n bail jurisprudence vis-a-vis the discretion of Courts must phrase – ‘bail is the rule, jail umstances justify otherwise – dealing with bail applications ise’ of the general power to ct is severely restrictive in s used in proviso to Section sed’ in contrast with the form tion 437 (1) CrPC, – ‘may be tention of the Legislature to jail, the rule. test for rejection of bail is 2 28. In this background, the tes ejected as a ‘rule’, if after quite plain. Bail must be rejec qu r and after perusing the final hearing the public prosecutor an he ourt arrives at a conclusion re report or Case Diary, the Court rounds for believing that the that there are reasonable groun th true. It is only if the test for accusations are prima facie true ac fied – that the Courts would re rejection of bail is not satisfied pplication in accordance with proceed to decide the bail applic pr influencing witnesses, risk, test’ (flight risk, the th his position is made clear by tampering with evidence). This p ta D, which lays down that the Su Sub-section (6) of Section 43D, w bail specified in Sub-section restrictions, on granting of bail re estrictions under the Code of (5 (5), are in addition to the restri ther law for the time being in Cr Criminal Procedure or any other force on grant of bail. fo Xxx” Xx ‘tripod PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 4 of 22 CRA-D-404-20 2023 (O&M) 6. Thi This Court has heard learned cou ed counsel for the parties and perused the mat e material on record. 7. The allegation against the appellan The pellant is that he was a supplier of illegal arm l arms and weapons to co-accuse accused Ashish Kumar who subsequently su supplied to co-accused Dharmind arminder Singh @ Guggni for commission of on of serious offences like murders, rders, dacoity, loots, extortion etc. No recovery covery at all was made from the appe e appellant. From perusal of the status report file ort filed on behalf of the State, it tra , it transpires that the appellant who is the resid e resident of U.P. had been apprehen prehended only on the basis of secret informati ormation given by one of the police of lice officials. The only evidence that has been br een brought on record at this stage ar are the statements made by the chance witn e witnesses. One chance witness has ss has stated that the appellant and co-accused cused Javed approached him for sup or supply of weapons based on mistaken identi identity and revealed that they w hey were sent by co-accused Dharminder Sin er Singh @ Guggni. The other chance chance witness Nishant Sharma has purportedly rtedly stated that after the arrest of co t of co-accused Ashish Kumar, the present appe t appellant and co-accused Javed wer ed were supplying the weapons to the members mbers of KLF. The third chance witne e witness has purportedly stated that the appellan ppellant and co-accused Javed had off had offered him to facilitate the supply of illegal illegal weapons. 8. It appears from the status repo It report that no incriminating material has bee as been found against him, at this sta this stage. Furthermore, no link evidence has also been established to conne connect the appellant to the commission of on of any crime, more so, to a cri a crime/offence showing his involvement un under UAPA. No recovery of any of any sort has also been made PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 5 of 22 CRA-D-404-20 2023 (O&M) from him. The a The appellant has undergone an actua n actual sentence of 05 years 02 months and 30 d d 30 days. 9. Article 21 of the Constitution Art
Legal Reasoning
perusal of the case diary or the re per 173 173 of the Code is of the opinion gro grounds for believing that the person is prima facie true. per he report made under section ion that there are reasonable the accusation against such (6) (6) The restrictions on granting section (5) is in addition to the re sec or any other law for the time bein or bail. bai ing of bail specified in sub- e restrictions under the Code being in force on granting of contained in sub-sections (5) (7) Notwithstanding anything cont (7) ted to a person accused of an and and (6), no bail shall be granted t Act, if he is not an Indian offence punishable under this Ac offe country unauthorisedly or citizen and has entered the co citi illegally except in very exceptiona tional circumstances and for ille ng.” reasons to be recorded in writing. rea The relevant ext ant extract of the aforesaid judgment is as follows: hat the presence of statutory “17. It is thus clear to us that “ (5) of UAPA per se does not res restrictions like Section 43-D(5) o nal Courts to grant bail on ous oust the ability of Constitutional I of the Constitution. Whereas grounds of violation of Part III of t gro gs, the Courts are expected to at c at commencement of proceedings, t y against grant of bail but the app appreciate the legislative policy ag l melt down where there is no rigours of such provisions will mel rigo eted within a reasonable time like likelihood of trial being completed tion already undergone has and and the period of incarceration the prescribed sentence. Such exceeded a substantial part of the p exc rd against the possibility of an an approach would safeguard a 5) of UAPA being used as the pro provisions like Section 43-D (5) of sole metric for denial of bail or l or for wholesale breach of sole rial. constitutional right to speedy trial. con xxxxxxxxxxxx xxx 19. xxxxxx 19 Ins Instead, Section 43-D (5) of UAPA possible ground for the competen pos addition to the well settled conside add offe offence, possibility of tampering w the the witnesses or chance of the acc absconsion etc.” abs APA merely provides another etent Court to refuse bail, in siderations like gravity of the ng with evidence, influencing accused evading the trial by 10. The Supreme Court in the case of The ase of Vernon (supra) has held that serious alle us allegations against accused by itse by itself cannot be a reason to deny bail to th to the accused. The relevant extra extract thereof is reproduced hereunder:- PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 8 of 22 CRA-D-404-20 2023 (O&M) 44. In the case of Zahoor Ahm “44 refe reference was made to the judgmen Swa Swamigal v. State of Tamil Nad which, citing two earlier decisions whi of State v. Jagjit Singh (AIR 1962 of Sin Singh v. State of (UT of Delhi) factors for granting bail under no fac discussed. It was held that the natu disc offe offences, the character of the evide are peculiar to the accused, a rea are presence of the accused not bei pre rea reasonable apprehension of witnes the larger interest of the public the relevant factors for granting or re rele the the appellants’ case founded on A Con Constitution of India with the a considering the fact that almost fiv con the they were taken into custody, w app appellants have made out a c Allegations against them no doubt Alle rea reason alone bail cannot be denie wit with the offences under Chapters I we have referred to the materials we this this stage. These materials ca det detention of the appellants, pend case under the other provisions o cas 1967 Act.” 196 Ahmad Shah Watali (supra) ment of Jayendra Saraswathi Nadu [(2005) 2 SCC 13) in ions of this court in the cases 962 SC 253) and Gurcharan lhi) [(1978) 1 SCC 118), the r normal circumstances were nature and seriousness of the vidence, circumstances which reasonable possibility of the being secured at the trial; itnesses being tampered with; blic or the State would be or rejecting bail. Juxtaposing on Articles 14 and 21 of the e aforesaid allegations and st five years have lapsed since y, we are satisfied that the a case for granting bail. oubt are serious, but for that enied to them. While dealing ers IV and VI of the 1967 Act, ials available against them at s cannot justify continued ending final outcome of the ns of the 1860 Code and the 11. In the case of Shoma Kanti Sen (s In t (supra), the Supreme Court has held that ge hat generally pre-conviction detention ention at the investigation stage is necessary to ry to maintain purity in the course of urse of trial and also to prevent an accused fro ed from being a fugitive from justi justice or to prevent further commission of on of an offence. Once it is apparent parent that a timely trial is not possible and th and the accused has suffered incarc incarceration for a significant period of time, time, the Court would ordinarily be o ly be obligated to enlarge them on bail as any f s any form of deprival of liberty mus ty must be proportionate to the facts of the case e case and also follow a just and fair p fair procedure. A balance must be made betwee between the prosecution’s right to lea t to lead evidence of its choice and establish th lish the charges beyond any doubt doubt and simultaneously, the PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 9 of 22 CRA-D-404-20 2023 (O&M) respondent’s rig t’s rights guaranteed under Part-III III of the Constitution. The relevant extract xtract is reproduced hereinafter: “xxx “xx In the case of K.A. Najeeb v. 37. 37. SCC 713], a three Judge Bench of SCC of of us Aniruddha Bose, J was a Constitutional Court is not strictly Con provisions of grant of bail in the 1 pro its its constitutional jurisdiction to re who has been incarcerated for a lo who on Article 21 of Constitution of on sou sought to be distinguished by Mr. N jud judgment of this Court in the cas State of Punjab [2024 INSC 92]. In Sta held:- hel eb v. Union of India [(2021) 3 h of this Court (of which one s a party), has held that a ictly bound by the prohibitory he 1967 Act and can exercise to release an accused on bail a long period of time, relying of India. This decision was r. Nataraj on facts relying on case of Gurwinder Singh v. ]. In this judgment it has been unsel has relied upon the case "32. The Appellant's counse to back its contention that the of KA Najeeb (supra) to ba ail for last five years which is appellant has been in jail fo wn in the said case. While this contrary to law laid down in compelling at first glance, it argument may appear com nce. In KA Najeeb's case this lacks depth and substance. with a circumstance wherein court was confronted with ccused, other co-accused had except the respondent-accus ial and were sentenced to already undergone trial ceeding eight years therefore imprisonment of not exceed consider bail was grounded in this court's decision to cons impending sentence that the the anticipation of the imp ght face upon conviction and respondent accused might accused had already served since the respondent-accu imprisonment i.e., more than portion of the maximum imp ok it as a factor influencing its five years, this court took it ail. Further, in KA Najeeb's assessment to grant bail. pondent accused was severed case the trial of the respon sed owing to his absconding from the other co-accused ack in 2015 and was being and he was traced back fter and the NIA had filed a separately tried thereafter that were left to be examined long list of witnesses that said accused therefore this with reference to the said of unlikelihood of completion court was of the view of u However, in the present case of trial in near future. How nder way and 22 witnesses the trial is already under cted witnesses have been including the protected y discussed, the material examined. As already d dicates the involvement of the available on record indicat e of terrorist activities backed appellant in furtherance of terrorist organization nned by members of banned Page 10 of 22 PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document CRA-D-404-20 2023 (O&M) involving exchange of la f large quantum of money through different channe annels which needs to be deciphered and therefore i ore in such a scenario if the appellant is released on bai n bail there is every likelihood the key witnesses of the case that he will influence the k justice. the process of th r which might hamper in trial pertaining to grave Therefore, mere delay in ed in the instant case cannot offences as one involved in to grant bail. Hence, the be used as a ground to the behalf of the appellant aforesaid argument on the cannot be accepted.” 38. Relying on this judgment, M 38. bail is not a fundamental right. Sec bai enl enlarged on bail, an accused enu enumerated in Chapters IV and V fulfill the conditions specified in Se fulf do do not accept the first part of thi has has already accepted right of an offences of the 1967 Act to be en offe suc such right on Article 21 of the C was was in the case of Najeeb (supra), a period of incarceration was held per enl enlarge an accused on bail in sp provision of Section 43D (5) of the pro to col is necessary detention det inv investigation stage), to maintain pu and and also to prevent an accused justice. Such detention is also nec just com commission of offence by the sam gra gravity and seriousness of the offe committed by an accused, detent com trial at the investigation and post- tria san sanction of law broadly on these re deprival of liberty results in bre dep Constitution of India and must be Con bei being reasonable, following a just such deprival must be proportiona suc case. These would be the overarch cas law aw Courts would have to apply w ple plea of pre-trial detention, both a charge sheet stage.” cha nt, Mr. Nataraj, submits that . Secondly, to be entitled to be sed charged with offences nd VI of the 1967 Act, must in Section 43D (5) thereof. We f this submission. This Court f an accused under the said e enlarged on bail founding e Constitution of India. This ra), and in that judgment, long held to be a valid ground to n spite of the bail-restricting f the 1967 Act. Pre-conviction the in purity in the course of trial sed from being fugitive from necessary to prevent further same accused. Depending on offence alleged to have been tention before conclusion of -charge sheet stage has the se reasonings. But any form of breach of Article 21 of the t be justified on the ground of just and fair procedure and tionate in the facts of a given rarching principles which the ly while testing prosecution’s th at investigation and post- collect evidence (at 39. 39. As regards second part of which we have noted in the preced whi it with a qualification. The reas it w cas to be e case would also have constitutional court which is exam con for for retaining in custody an accu restricting offences. He cited res t of Mr Nataraj's argument eceding paragraph, we accept reasoning in Najeeb (supra) be examined, the examining prosecution's plea accused charged with bail- the case of Gurwinder is if it Page 11 of 22 PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document CRA-D-404-20 2023 (O&M) Singh (supra) in which the judgme Sin was was distinguished on facts and a ju reje rejecting the prayer for bail of the a this was a judgment in the given f this not dislocate the axis of reasoning not enu enunciated in the case of Najeeb ( prosecution, another order of a coo pro 18-1-2024, in the case of Mazhar 18 this this order, the petitioner's prayer rejection order of the High Court u reje the 1967 Act was rejected by the co the the the ratio of the case of Watali (s considering the case of Vernon (su con in this judgment accepting the re in val valid and applicable and then d alle allegations in terms of the proviso 1967 Act. Thus, the prosecution 196 app appellant is concerned, does not ga reasoning forming the basis of Maz rea gment of K.A. Najeeb (supra) a judgment of the High Court the appellant was upheld. But ven facts of that case and did ning on constitutional ground eeb (supra). On behalf of the a coordinate Bench passed on har Khan v. NIA was cited. In ayer for overturning a bail- urt under similar provisions of he coordinate Bench applying (supra) judgment and also (supra). We have proceeded e restrictive provisions to be en dealt with the individual viso to Section 43-D (5) of the ution's case, so far as the ot gain any premium from the Mazhar Khan (supra).’ [emphasis supplied]. 12. The case of Gurwinder Sing The Singh (supra) was clearly distinguished in hed in the present case under disc r discussion and it has been observed that in that in the said case the trial was alr already undergoing and 22 witnesses, inclu , including the protected witnesses had ses had already been examined. The observation rvations made in Gurwinder Singh’s gh’s case (supra), therefore, had to be restric restricted to the context in which they h they were made. 13. In the case of Javed Gulam N In Nabi Shaikh (supra), the Supreme Court Court has observed that criminals are als are not born but made out. Howsoever seri er serious a crime may be, an accuse accused has a right to a speedy trial as enshrine shrined under the Constitution of Indi of India. Moreover, the purpose of bail is only to only to secure the attendance of the ac the accused at the trial and bail is not to be w be withheld as a form of punishme nishment. The relevant extract thereof is reprod reproduced hereunder: PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document “13. The aforesaid observations “13 aga again, in several judgments, such a v. State of Bihar reported in (198 v. S ons have resonated, time and ch as Kadra Pahadiya & Ors. (1981) 3 SCC 671 and Abdul Page 12 of 22 CRA-D-404-20 2023 (O&M) Rehman Antulay v. R.S. Nayak re Reh 225 225. In the latter the Court reemph tria trial, and further held that an ac trial, has no option: tria k reported in (1992) 1 SCC mphasized the right to speedy n accused, facing prolonged “The State or complaina thus, the obligation of the as the case may be, to pro reasonable promptitude. country, where the large m from poorer and weaker se versed in the ways of law, w competent legal advice, th rule is wholly inadvisable. O if an accused demands spee given one, may be a relevan we cannot disentitle an acc infringement of his right ground that he did not ask f trial.” In Mohd Muslim @ Hussain 14. 14. rep reported in 2023 INSC 311, this Co “21. Before parting, it would b laws which impose stringent bail, may be necessary in pu are not concluded in time, the individual is immeasurable. J their living conditions, more According to the Union Hom Parliament, the National Cri recorded that as on 31st Dece prisoners were lodged in jails 4,25,069 lakhs in the country convicts; the rest 4,27,165 wer in ainant prosecutes him. It is, the State or the complainant, o proceed with the case with this de. Particularly, ge majority of accused come er sections of the society, not w, where they do not often get e, the application of the said le. Of course, in a given case, speedy trial and yet he is not evant factor in his favour. But accused from complaining of ight to speedy trial on the ask for or insist upon a speedy ssain v. State (NCT of Delhi) is Court observed as under: ld be important to reflect that gent conditions for grant of n public interest; yet, if trials , the injustice wrecked on the le. Jails are overcrowded and ore often than not, appalling. Home Ministry’s response to Crime Records Bureau had ecember 2021, over 5,54,034 jails against total capacity of untry. Of these 122,852 were were undertrials. 22. The danger of unjust impr imprisonment, is that inmates are at risk of “prisonisation” ion” a term described by the Kerala High Court in A C A Convict Prisoner v. State reported in 1993 Cri LJ LJ 3242, as “a radical loses his the prisoner t y transformation” whereby a number. He loses personal identity. He is known by a nu no personal relationships. possessions. He has no result from loss of freedom, Psychological problems resu ty any autonomy of personal status, possessions, dignity a of prison turns out to be life. The inmate culture of becomes hostile by ordinary dreadful. The prisoner beco changes. standards. Self-perception cha 23. There is a further danger crime, “as crime not only t more professional the crime, m ger of the prisoner turning to nly turns admirable, but the e, more honour is paid to the Page 13 of 22 PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document CRA-D-404-20 2023 (O&M) criminal” (also see Donald Community’ published in 1 further deleterious effects - w to the weakest economic st livelihood, and in several cas as well as loss of family bo society. The courts therefore these aspects (because in the loss to the accused is irrep trials – especially in cases, w stringent provisions, are ta speedily.” ald Clemmer’s ‘The Prison in 1940). Incarceration has where the accused belongs c strata: immediate loss of l cases, scattering of families y bonds and alienation from fore, have to be sensitive to the event of an acquittal, the rreparable), and ensure that es, where special laws enact e taken up and concluded Xxxxxxx 18. 18. Criminals are not born out pot potential in everyone is good and criminal as beyond redemption. Th crim is o is often missed when dealing with adu adult. Indeed, every saint has a future. When a crime is committe futu res responsible for making the offender fac factors may be social and econom value erosion or parental neglect; val stre stress of circumstances, or the ma in a in a milieu of affluence contrasted privations.” priv out but made. The human and so, never write off any n. This humanist fundamental with delinquents, juvenile and s a past and every sinner a tted, a variety of factors is nder commit the crime. Those nomic, may be, the result of lect; may be, because of the manifestation of temptations asted with indigence or other 14. In the case of Sheikh Javed Iqb In Iqbal @ Ashfaq Ansari @ Javed Ansari (supra), it has been held that r that right to life and personal liberty enshrine nshrined under Article 21 of the Constitution of India is overarching and ng and sacrosanct. A Constitutional C onal Court cannot be restrained from granting nting bail to an accused on accoun ccount of restrictive statutory provisions in a s in a penal statute if it finds that t that the right of the accused- undertrial unde under Article 21 of the Constitu onstitution of India has been infringed. In tha In that event, such statutory restrictio trictions would not come in the way. Even in t n in the case of interpretation of a of a penal statute, howsoever stringent it ma it may be, a constitutional court h ourt has to lean in favour of constitutionalism onalism and the rule of law, of which l hich liberty is an intrinsic part. PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 14 of 22 CRA-D-404-20 2023 (O&M) Furthermore, ore, it was held that the view taken taken in K.A. Najeeb’s case (supra) rendered ndered by a three Judge Bench of the of the Apex Court was binding on a Two Judge Judge Bench like Gurwinder Singh’ ingh’s case (supra) or Sheikh Javed Iqbal’s case (supra). The relevant extrac extract of Sheikh Javed Iqbal’s case (supra) is r is reproduced hereunder:- In Gurwinder Singh’s case 31. “31 has has been placed by the responden this Court distinguished K.A. Naje this that the appellant in K.A. Najee tha cus custody for five years and that the t that case was severed from the oth tha they were sentenced the had concluded whereupon had imp imprisonment of eight years; but tria trial was already underway and t including the protected witnesses inc was in that context, the two Judg was that mere delay tha Gu Gurwinder Singh observed pertaining to grave offences canno per grant bail. gra ase (supra) on which reliance ndent, a two Judge Bench of Najeeb’s case (supra) holding ajeeb’s case (supra) was in the trial 25 of the appellant in other co-accused whose trial to but in Gurwinder Singh, the nd that twenty two witnesses sses have been examined. It Judge Bench of this Court in trial annot be used as a ground to in in in d again, emphasized that right hrined under Article 21 of the rarching and sacrosanct. A restrained from granting bail estrictive statutory provisions hat the right of the accused- the Constitution of India has t, such statutory restrictions ay. Even the case of te, howsoever stringent it may has to lean in favour of of law of which liberty is an acts of a particular case, a ne to grant bail. But it would der a particular statute, bail n counter to the very grain of ce. In any view of the matter, ing rendered by a three Judge f two Judges like us. 32. This Court has, time and aga 32. to l to life and personal liberty enshrin Con Constitution of India is overarc constitutional court cannot be rest con to a to an accused on account of restri in in a penal statute if it finds that undertrial under Article 21 of the und been infringed. In that event, su bee wou the way. would not come interpretation of a penal statute, h inte be, a constitutional court has be, con constitutionalism and the rule of l intrinsic part. In the given facts intr constitutional court may decline to con be be very wrong to say that under cannot be granted. It would run co can our constitutional jurisprudence. I our K.A K.A. Najeeb’s case (supra) being r Ben Bench is binding on a Bench of two xxxxxx xxx 33. 33. Con Continued incarceration of the app xxx.” xxx appellant cannot be justified xxx PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 15 of 22 CRA-D-404-20 2023 (O&M) 15. In Jalaluddin Khan v. Union of In In of India reported in (2024) 10 SCC 574, the a , the appellant was, inter-alia, charge charged under Sections 13, 18, 18-A and 20 o 20 of the UAPA. He was arrested rested on July 12, 2022 and a charge-sheet wa eet was filed on January 07, 2023. 2023. The relevant part of the charge-sheet rea eet reads as follows: “xxx “xx 17.1 Bihar Police had received in 17. disturb the proposed visit of Ho dist Bih Bihar by some suspected persons Phu Phulwarisharif area. On 11.07.202 secret information, a raid was c sec offi officers of PS Phulwarisharif, hou house/premises of Athar Parvej (A of documents “India 2047 Toward of Inte for C Internal Document: Not “Po “Popular Front of India 20-2-202 and 30 copies in Urdu, 49 cloth fla and ke ke liye Popular Front ke saath” agr agreement on non-judicial stamp Jalaluddin Khan (A-2) with tenant Jal Abd Abdul Qayum Ansari. The recovere mo mobile phone having SIM card of (A-2) were seized in the instant ca (A ant anti-India activities.” Xxx” Xxx ed information about a plan to Hon’ble Prime Minister to sons who had assembled in .2022 at about 19:30 hrs, on as carried out by the police arif, Patna at the rented j (A-1) and recovered 05 sets wards Rule of Islamic India, r Circulation”, Pamphlets 2021” – 25 copies in Hindi th flags, 02 magazines “Mulk ath” and one copy of rent mp by Farhat Bano w/o Md. ant Athar Parvej (A-1) son of vered articles and a Samsung d of accused Md. Jalaluddin nt case. They were related to 16. The Hon’ble Supreme Court was o The was of the opinion that nothing in the charge arge-sheet showed that the appellan ellant had taken part in or committed unla d unlawful activities as defined in U d in UAPA. No material was produced on re on record to show that the appel appellant advocated, abetted, advised or incite r incited the commission of terrorist ac rist acts or preparatory activity. Succinct reason reasoning leading to the grant of b t of bail is reproduced herein under: “xxx “xx PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document 30. 30. Therefore, on plain reading not possible to record a conclusion not ding of the charge-sheet, it is sion that there are reasonable Page 16 of 22 CRA-D-404-20 2023 (O&M) grounds for believing that the gro app appellant of commission of offence is p is prima-facie true. We have taken statement of witness Z as they a stat mini-trial. Looking at what we min imp impossible to record a prima-faci reasonable grounds for believing th rea the appellant of commission of of the prim prima-facie true. No antecedents o brought on record. bro the accusation against the ences punishable under UAPA aken the charge-sheet and the ey are without conducting a we have held earlier, it is facie finding that there were ng that the accusation against of offences under UAPA was nts of the appellant have been 31. 31. The upshot of the above dis no no reason to reject the bail a appellant. app e discussion is that there was il application filed by the 32. 32. Before we part with the jud here that the Special Court and her con consider the material in the c Per Perhaps the focus was more on t therefore, the appellant’s case the app appreciated. When a case is made o Cou Courts should not have any hesita allegations of the prosecution may alle dut duty of the Courts is to consider th acc accordance with the law. “Bail i exception” is a settled law. exc e judgment, we must mention and the High Court did not he charge-sheet objectively. on the activities of PFI, and ase could not be properly ade out for a grant of bail, the esitation in granting bail. The may be very serious. But, the er the case for grant of bail in ail is the rule and jail is an 33. 33. Even in a case like the pres stringent conditions for the gran stri stat statutes, the same rule holds goo tha that the bail can be granted if the are satisfied. The rule also means are out for grant of bail, the Court can out If t If the Courts start denying bail in d a violation of the rights guarantee a v Constitution. Con xx” xxx present case where there are rant of bail in the relevant good with only modification f the conditions in the statute ans that once a case is made t cannot decline to grant bail. l in deserving cases, it will be nteed under Article 21 of our 17. In th In the case of “Mukesh Salam v. S v. State of Chhattisgarh and another” SLP ( LP (Criminal) No.3655 of 2024, vid , vide an order dated August 30, 2024, the pe the petitioner was charged under Secti r Sections 10, 13, 17, 38 (1) (2), 40, 22-A and 2 and 22-C of UAPA and directed to ed to be released on bail as he was in custody ustody since May 06, 2020 and 40 nd 40 out of 100 prosecution witnesses had b had been examined. The Apex Cour Court observed that continued PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 17 of 22 CRA-D-404-20 2023 (O&M) detention of the of the petitioner would not subserve th erve the ends of justice as there was no likeliho kelihood of early conclusion of the tr the trial. However, along with the conditions tions that may be imposed by the S the Special Judge (NIA Act) following two c two conditions were imposed as the as the conditions for grant of bail: (i) The petitioner shall repor 6 station once every week and stat eport to the nearest police The petitioner shall remain (ii) (ii) Jud Judge on every date of the trial pre presence is dispensed with by th cooperate in the early conclusion o coo main present before the trial trial without fail, unless his y the trial Court, and shall on of the trial.” 18. In a recent case in Tapas Ku In Kumar Palit v. State of Chhattisgarh, r , reported in 2025 SCC OnLine Line SC 322, by a judgment dated February ruary 14, 2025, the Supreme Court Court set-aside the impugned order passed by sed by the High Court, rejecting the ba the bail of the appellant. As per the prosecution’ cution’s case, the appellant was travel travelling in a vehicle carrying articles which c hich could be ordinarily related to to Naxalite activities. Upon search being c eing conducted, it was alleged tha ed that the appellant was in conscious posse cles: possession of the following articles: “xxx “xx The search was undertaken 4. 4. ken and the following articles alleged to be in conscious were recovered from the car all wer ein:- possession of the appellant herein: pos 95 pair of shoes (i) (i) (ii) Green black printed cloth (ii) (iii) Two bundles of electric wire (iii) (iv) LED lens and (iv) (v) Walki talki and other articles ticles. (v) wire each of 100 metere Xxx” Xxx PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 18 of 22 CRA-D-404-20 2023 (O&M) 19. In that case, the appellant was arre In as arrested on March 24, 2020. After filing of th g of the charge-sheet, the prosecution cution was only able to examine 42 witnesses an ses and intended to examine as many many as 100 witnesses. It was observed that ev that even after the passing of five year e years of the appellant being in judicial custody ustody, learned counsel appearing fo ring for the State had no idea regarding time t time that would be consumed to comp o complete the recording of oral evidence. The The Supreme Court rded recorded that in the aforesaid circumstances, i nces, it was left with no other option option but to get the appellant released on b on bail despite the seriousness sness of the crime alleged. Furthermore, it ore, it was of the view that the Public Public Prosecutor who was in- charge of the t the trial, had to decide which of t h of the witnesses were to be examined and and who were to be dropped as no as no useful purpose would be served if severa several witnesses were examined for e d for establishing the same fact. The relevant ext ant extract of the said judgment is repr is reproduced hereinafter: “xxx “xx 10. However, many times we h 10. clea lear that howsoever serious a cr has a fundamental right of spee has Article 21 of the Constitution. Art Xxx Xxx e have made ourselves very a crime may be the accused speedy trial as enshrined in The aforesaid results in inde 12. 12. of of trial. It is expected of the Pub exercise his discretion insofar as e exe is concerned. is c Xxx Xxx indefinite delay in conclusion Public Prosecutor to wisely as examination of the witness In this regard, the role of 14. 14. wou would also assume importance. T inq inquire with the Special Public Pro examine a particular witness if s exa dep depose the very same thing that have deposed earlier. We may s hav of the Special Judge (NIA) e. The Special Judge should Prosecutor why he intends to if such witness is going to that any other witness might ay sound as if laying some Page 19 of 22 PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document CRA-D-404-20 2023 (O&M) guidelines, but time has come to co gui and and bail in its true and proper per to g to get a final verdict after incarcer in jail as an undertrial prisoner, th in j said that his right to have a speedy said the the Constitution has been infringed on accused persons- who remai on guilty- can also be significant. A gui fina financially compensated for what m of pre-trial incarceration. They ma of p accommodation, acc rela relationships while incarcerated, a amount of money on legal fees. If a am not guilty, they have likely endure not stig stigmatized and perhaps even ostra and will have to rebuild their lives and to consider this issue of delay r perspective. If an accused is rceration of six to seven years er, then, definitely, it could be eedy trial under Article 21 of nged. The stress of long trials emain innocent until proven nt. Accused persons are not hat might be a lengthy period y may also have lost a job for personal d experienced ed, and spent a considerable . If an accused person is found dured many months of being ostracized in their community ives with their own resources. damage to 15. 15. We would say that delays ar extr extremely bad for the victims, for I credibility of our justice system, wh cre the the masters of their Courtrooms an Cod Code provides many tools for the ensure that cases proceed efficientl ens Xxx” Xxx s are bad for the accused and for Indian society and for the , which is valued. Judges are s and the Criminal Procedure the Judges to use in order to iently. 20. In the present case, even if one ass In t ne assumes that the co-accused were indulging lging in terrorist acts or were particip articipating in acts preparatory to the commiss mmission of terrorist acts, relevant levant material connecting the accused to adv to advocating, abetting, advising, in ing, inciting or conspiring to commit any terr ny terrorist act had to be brought on r ht on record to justify rejection of bail especial specially after a long period of inca f incarceration. However, no worthwhile mat material has been brought on reco n record by the prosecution, at this stage. 21. It is pertinent to note that for more It i r more than five and half years, no effort was was made by the State to interro interrogate the main accused Dharminder Sin er Singh @ Guggni who is serving h ving his sentence in connection with another ca her case in Tihar Jail, Delhi and is is yet to be arrested in the present case d ase despite challan being filed on led on March 01, 2021. No Page 20 of 22 PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document CRA-D-404-20 2023 (O&M) explanation has n has been provided by the prosec prosecution as to why despite lodging of FIR f FIR more than five years back t ack the primary accused was neither arrested rested nor interrogated. The charges u arges under Section 120-B IPC, Section 25 of th 5 of the Arms Act and Sections 10, s 10, 13, 18, 19, 20 of UAPA were framed on ed on April 24, 2024 and only 01 witn 1 witness out of 40 prosecution witnesses has b has been examined till date. Learn Learned State counsel is also unable to give a give any reasonable estimate of the f the time that may be required for completion letion of the trial. Therefore, the Co he Court is left with no other option but to rel t to release the appellant on bail. 22. In view of the aforesaid discussion In v ussion and the law laid down by the Supreme Co me Court, especially when the appella appellant is in custody for more than five years years and the end of the trial is not in s not in sight, considering only 01 out of 40 witne witnesses have been examined, the a the appeal is allowed and the impugned order order dated February 27, 2023 is se is set aside. The appellant is ordered to be r o be released on regular bail subject subject to following conditions besides furnishi rnishing of requisite bail bonds to th s to the satisfaction of the trial Court/Duty Mag ty Magistrate concerned:- (i) (i) He shall furnish bond of ₹10 l ₹10 lakh each; ₹10 ₹10 lakh with two sureties of (ii) (ii) He shall surrender his passport holding the same and is still with hi hol him; ssport in the Trial Court, if he is (iii) (iii) He shall appear before the Tria date, unless exempted by the Court; date Court; Trial Court on each and every (iv) (iv) He shall appear before the Inv when summoned; whe he Investigating Officer, as and directly make any inducement, v) H v) He shall not directly or indirect on acquainted with the facts of threat or promise to any person acq thre tness; the case or who is cited as witness; the PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 21 of 22 CRA-D-404-20 2023 (O&M) vi) He shall not involve in any crim vi) the the pendency of trial, he is found in any any offence punishable under age agency would be free to approach this order and cancellation of his ba this y criminal activity and if during und involved in commission of nder UAPA, the prosecuting proach this Court for recalling his bail; vii) vii) He shall not sell, transfer or in third party right over his immovabl thir r or in any other manner create ovable property; viii) He shall furnish an undertakin viii of his absence, Trial Court may pro of shall not claim re-examination of an sha rtaking to the effect that in case ay proceed with the trial and he n of any witness. ix) At the time of release of the ix) SH SHO shall be informed. He shall a every alternate Monday till the conc eve f the appellant, the concerned shall appear before the SHO on e conclusion of the trial. 23. In the event there is a breach of an In t h of any of the abovementioned conditions, or s, or of the conditions to be impo imposed by the Trial Court independently, i ntly, it would be open to the prosecuti secution to seek cancellation of the bail of the d f the defaulting appellant without any ut any further reference to this Court. Similarly ilarly, if the appellant seeks to threat threaten or otherwise influence any of the wi he witnesses, whether directly or i or indirectly, then also the prosecution sha n shall be at liberty to seek can k cancellation of bail of the concerned appe appellant by making appropriate ap ate application before the Trial Court. (DEEPAK SIB DGE JUDGE SIBAL) SEPTEMBER Prince BER 12, 2025 Whether speakin Whether reporta speaking/reasoned: Yes/No Yes/No reportable: (LAPITA BANERJI) (LA JUDGE PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document Page 22 of 22
Arguments
ution of India enshrines the fundamental rig tal right to protection of life and libert liberty which also includes the right to a speedy speedy trial. It has been held by the S the Supreme Court in a catena of judgments th ents that long custody by itself would would entitle the accused under UAPA to the gr grant of bail by invoking Article rticle 21 of the Constitution of India. The Cons e Constitutional Court would like to p ke to prevent a situation where the lengthy and y and arduous process of trial become ecomes the punishment in itself. Reference can b can be made to the judgment of the of the Supreme Court in K.A. Najeeb’s case (supra), wherein it has been held n held that long custody would be an essential f ential factor while granting bail under under UAPA. Article 21 of the Constitution of on of India provides right to speedy peedy trial and long period of incarceration wo ion would be a good ground to grant grant bail to an under-trial for an offence pun e punishable under UAPA. It has t has also been held that the embargo under under Section 43-D of UAPA would ould not negate the powers of the Court to giv to give effect to Article 21 of the Con e Constitution of India. Section 43-D of UAPA APA is reproduced hereinafter for rea for ready reference:- f certain provisions of the 43 D. Modified application of cer “43 Code.— Cod (1) Notwithstanding anything c (1) any any other law, every offence punish be deemed to be a cognizable offen be clause (c) of section 2 of the Code cl as defined in that clause shall be co as d ng contained in the Code or unishable under this Act shall offence within the meaning of Code, and “cognizable case” be construed accordingly. (2) Section 167 of the Code sh (2) cas case involving an offence punishab to the modification that in sub-secti to t e shall apply in relation to a ishable under this Act subject section (2),— (a) the references to “fifteen d (a) “sixty days”, wherever they occu “si en days”, “ninety days” and occur, shall be construed as Page 6 of 22 PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document CRA-D-404-20 2023 (O&M) references to “thirty days”, “ni refe days” respectively; and day “ninety days” and “ninety (b) (b) after the proviso, the follo inserted, namely:— inse following provisos shall be “Provided further that if it is not “Pr investigation within the said period inv ma may if it is satisfied with the report indicating the progress of the inve ind reasons for the detention of the rea per period of ninety days, extend the hundred and eighty days: hun not possible to complete the riod of ninety days, the Court eport of the Public Prosecutor investigation and the specific the accused beyond the said the said period up to one if that Pro the pol Provided also inv investigation under this Act, requ investigation, for police custody fro inv per person in judicial custody, he sha the the reasons for doing so and shall any, for requesting such police cust any police officer making the requests, for the purposes of y from judicial custody of any shall file an affidavit stating hall also explain the delay, if custody. (3) (3) Section 268 of the Code shall a involving an offence punishable un inv modification that— mo all apply in relation to a case e under this Act subject to the (a) the reference in sub-section (1) (a) (1) thereof— (i) to “the State Government” s (i) to “the Central Go reference refe Go Government.”; (ii) (ii) to “order of the State Govern as as a reference to “order of the Ce State Government, as the case may Sta t” shall be construed as a the State Government or vernment” shall be construed e Central Government or the may be”; and (b) the reference in sub-section ( (b) Government” shall be construed Go Cen Central Government or the State may be”. ma on (2) thereof, to “the State rued as a reference to “the tate Government, as the case (4) (4) Nothing in section 438 of the Co to to any case involving the arrest o having committed an offence punish hav e Code shall apply in relation est of any person accused of unishable under this Act (5) (5) Notwithstanding anything con person accused of an offence punis per and and VI of this Act shall, if in custo on on his own bond unless the Pub given an opportunity of being hea giv suc such release: Provided that such ac released on bail or on his own rele contained in the Code, no punishable under Chapters IV ustody, be released on bail or Public Prosecutor has been heard on the application for ch accused person shall not be wn bond if the Court, on a Page 7 of 22 . PRINCE SAINI 2025.09.14 21:54 I attest to the accuracy and integrity of this document CRA-D-404-20 2023 (O&M)