Full Text
HIGH COURT OF DELHI
Date of Decision: -16th October, 2024.
A. S. ISMAIL .....Appellant
Through: Ms. Kamini Jaiswal, Ms. Rani Misha, Mr. A. Nowfal, Mr. Shaikh Saipan and
Mr. Shereef K., Advocates (M:
9994148482)
Through: Mr. Rahul Tyagi, SPP, Mr. Sangeet Sibou, Mr. Jatin APP, Mr. Aniket, Mr. Vikas Walia APP, Advs. alongwith
DSP T.V. Rajesh AIO for NIA.
Prathiba M. Singh, J. (Oral)
JUDGMENT
1. This hearing has been done through hybrid mode. CRL.M.A. 30991/2024 (early hearing)
2. The appeal is taken up for hearing. Accordingly, the present application is allowed and disposed of.
3. The present appeal under Section 21(4) of the National Investigation Agency Act, 2008 has been filed on behalf of the Appellant- A.S. Ismail challenging the impugned order dated 2nd September, 2024 (hereinafter, the ‘impugned order’) in RC No. 14/2022/NIA/DLI by which the Special NIA Court has disposed of the interim bail application of the Appellant herein. 16:44
4. A brief background of this case is that vide order dated 12th April, 2022 passed by the Ministry of Home Affairs, Government of India, the National Investigation Agency (hereinafter, the ‘NIA’) P.S. New Delhi, registered a case against the Appellant herein vide FIR No. RC-14/2022/NIA/DLI dated 13th April, 2022 under Sections 120B/153A of the IPC and Sections 17/18/18B/20/22B/38/39 of the UAPA. Subsequently, the Appellant was arrested on 22nd November, 2022.
5. The Appellant thereafter, in 2024, sought interim bail for 30 days to attend his daughter’s wedding in Coimbatore, Tamil Nadu, however, his bail application had been disposed of with limited relief vide the impugned order. The Special NIA Court vide the impugned order granted custody parole to the Appellant herein for a period of 8 days from 5th November, 2024 to 12th November, 2024 so as to allow the Appellant to attend his daughter’s wedding. The wedding of the Appellant’s daughter is stated to be scheduled for 11th November, 2024. The operative portion of the impugned order reads as under: “7.[2] However, having considered the submissions made by Ld. Counsel for accused, on humanitarian grounds, in terms of Rule 1203 of Delhi Prison Rules, considering that accused/applicant intends to participate in the marriage ceremony of his daughter namely I. Fehimeeda Ghazia, scheduled on 11.11.2024, 08 days custody parole of accused/applicant A.S. Ismail w.e.f. 05.11.2024 to 12.11.2024 excluding travel time of journey for reaching to the place i.e. Fathima Gani Marriage Hall, Pothanur, Coimbatore, Tamilnadu and 4, Sowkar Nagar, 1st Street, Coimbatore-641008, where marriage ceremony of the daughter of applicant/accused is scheduled to be held and also to visit his house is hereby granted. On each date i.e. from 16:44 05.11.2024 to 12.11.2024, custody parole is awarded for a period of six hours excluding travel time. For confirmation, accused shall cause to file his latest address where his family resides.
8. It be directed that jail authorities, local police station and the staff of Nayak Vahini Unit (erstwhile 3rd Battalion) escorting the accused would ensure that accused would not go to any other place. In this regard for maintaining the dignity of the ceremony, those police officials who would accompany the accused may not be in police uniform, however other officials of force who would be ensuring the law and order, security etc. can be in uniform and stay outside the venue. Authorities concerned are directed to ensure that adequate safety/security measures are taken while taking the accused for custody parole. Jail authorities are also directed to coordinate with local Police Station for ensuring law and order situation, security etc. as well as to take appropriate measures to ensure that accused/applicant may not flee away during custody parole.
9. Further, accused shall not be allowed to use phone, both land-line and mobile, nor accused shall be allowed to have access to internet. Accused will not be allowed to mix in the crowd and shall sit separately. Accused will not be allowed to click photographs with anyone except with his family for the purposes of marriage ceremony of his daughter.
10. All the expenses for above referred custody parole shall be borne by accused.”
6. A perusal of the above order would show that custody parole has been granted for a period of eight days i.e. 5th November, 2024 to 12th November,
2024. On each day, the custody parole is for six hours excluding travel time.
7. The grievance of the Appellant is that he had sought interim bail for 30 days to attend his daughter’s marriage in Coimbatore, however, his bail 16:44 application had been disposed of with limited relief.
8. Ms. Kamini Jaiswal, ld. Counsel appearing on behalf of the Appellant submits that for the wedding of the Appellant’s daughter, interim bail for a longer period ought to have been granted by the Trial Court. It is submitted by her that the Appellant is unable to bear the expenses of custody parole and the Appellant may be granted bail till 13th November as the wedding itself is on 11th November 2024.
9. Mr. Tyagi, ld. SPP for the NIA however submits that owing to the Appellant’s connection earlier with Students Islamic Movement of India (‘SIMI’) and now thereafter with Popular Front of India (‘PFI’) there is a clear threat perception as also possibility of flight risk. The Appellant was the State President in Tamil Nadu of the PFI and was a senior PFI Leader. He was the member of its National Executive. Various statements made by witnesses are also relied upon. He was involved in recruiting youths and providing them weapon training. However, Mr. Tyagi, on instructions, submits that if the Appellant is unable to bear the expenses, the State would bear the same. He relies on the counter affidavit, the relevant portion of which is extracted herein under: “xxx xxx xxx
5. After completing investigation against all the arrested accused persons, a chargesheet was filed in the instant case before this Hon'ble Court on 18.03.2023 against 19 arrested accused persons and the organisation PFI, including the accused A S Ismail (A-10). It is submitted that the accused A S Ismail (A- 10) was earlier a member of Students Islamic Movement of India (SIMI), which was banned as terrorist organization in 2001. He was State President, PFI, Tamil Nadu and later became a NEC member of 16:44 PFI. Investigation revealed that as a senior PFI leader and NEC member, AS Ismail (A-10) was involved in the conspiracy of radicalizing the gullible Muslim youth by provoking them against the Indian Government & leaders of organizations who do not believe in the establishment of Islamic Rule in India. A-10 was also involved in creating communal disharmony and disrupting the sovereignty and integrity of India. The main intention behind radicalization & recruitment of Muslim youth was to send them to weapons training camps of PFI organised in different states under the garb of 'Beginners Course' and other seemingly innocuous programs like 'Healthy People Healthy Nation'. Further, A- 10 was also involved in conspiracy to recruit youth through the mosques into the mohalla committees in Tamil Nadu who would be provided with arms training and would be readily available for terrorist activities. Extraction of his digital devices revealed a copy of a Govt. Communication regarding travel programme of a topmost leader of RSS visit to Thoothukkudi During the course of investigation, the following evidence was collected against the accused A S Ismail (A-10) ….. xxx xxx xxx
25. It is respectfully submitted that the prima-facie case against the applicant accused A S Ismail (A-10) is made out, and as such grant of bail is restricted under section 43(D)(5) of the UA(P) Act and section 43(D)(5) of the UA(P) Act reads as follows: 43D (5)"Notwithstanding anything contained in the Code, 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 Prosecutor has been given an opportunity of being heard on the application for such release: 16:44 Provided 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 for believing that the accusation against such person is prima facie true."
26. It is submitted that the prosecution is relying on the decision of the Hon'ble High Court of the Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in the matter of State Represented by National Investigation Agency through DySP, Hyderabad vs Saddam Hussain vide Crl.A. Nos. 791 & 792 of 2016 dated 07.11.2016, wherein it was held as follows: "Section 43D of UA (P) Act takes away the discretion of the Court to grant bail wherever it is of the opinion that there are reasonable grounds for believing that the accusation against the accused is Prima Facie true. The Unlawful Activities (Prevention) Act 1967 being a special provision, overrides the provision of Code of Criminal Procedure whenever the provisions come into conflict with each other."
27. It is respectfully submitted that the applicant accused A S Ismail (A-10) is accused of conspiracy to commit offences affecting the security and sovereignty of the country. It is further submitted that the Hon'ble Apex Court of India in Afzal khan@Babu Murtuzakhan Pathan Vs. State of Gujarat AIR 2007 SC 2111 held that, " Bail - A bail application in a case involving the security of State should be rejected".In view of the above said judicial principle, this Hon'ble Court may be pleased to dismiss the petition for bail, as the case involves the security of the State.
28. It is submitted that the applicant accused A S Ismail (A-10) is facing charges under Sections 120B, 121A, 16:44 122, 153A IPC and sections 13, 17, 18, 18A, 18B, 22C of UA(P)Act and therefore, the said accused A S Ismail (A-10) is not entitled for any bail in view of section 43D (5) of the UA(P) Act as there is a prima facie true case against him.”
10. The Court has heard ld. Counsels for the parties and perused the record. The Court has also perused various similar orders passed by trial courts under similar circumstances. In most cases, custody parole has been granted instead of interim bail.
11. On the last date of hearing i.e. 15th October, 2024, in view of the fact that the State was willing to bear the expenses, it was put to ld. Counsel on behalf of the Appellant to seek instructions from the Appellant, on whether he would be willing to avail custody parole for a period between 5th and 13th November, 2024, for eight hours every day, so as to enable him to attend his daughter’s wedding. The relevant portion of the order dated 15th October, 2024 is extracted hereinunder:
12. Today it is submitted by Ms. Jaiswal that even if for a limited period, interim bail be granted. However, the Court after seeing the evidence on 16:44 record and the reply of the NIA is not inclined to do so. The Court is conscious of the fact that the Appellant is seeking interim bail on the ground of his daughter’s marriage. However, considering the nature of the event, there are likely to be interactions between the guests and other attendees with the Appellant, at the wedding. In these circumstances, custody parole is justified. Further, considering the Appellant’s role in the organisation-Popular Front of India (PFI), and the averments made in the counter affidavit filed by the NIA, the present case does not satisfy the conditions for grant of interim bail. The custody parole granted by the trial court is however modified in the following terms: a. The period of custody parole granted to the Appellant shall be from 5th November, 2024 to 13th November, 2024 for 8 hours every day and the expenses shall be borne by the State. The same would be exclusive of travel time. b. In so far as the travel expenses are concerned, if the Appellant wishes to travel by air, as requested by the ld. Counsel, then only the expenses for air travel of the police officials accompanying the Appellant to Coimbatore would have to be borne by the Appellant. If not, then the mode and manner of the travel from Delhi to Coimbatore and back shall be determined by the State, for which expenses shall be borne by the State. c. All remaining conditions in the order of the Special court dated 2nd September 2024 are maintained.
13. The present appeal is disposed of in the above terms.
14. Copy of the order be sent to the concerned Jail Superintendent for necessary information and compliance. 16:44
15. Order be uploaded on the website of this Court forthwith.
16. Date already fixed, i.e. 22nd October, 2024, stands cancelled.
PRATHIBA M. SINGH JUDGE AMIT SHARMA JUDGE OCTOBER 16, 2024/kr/rks 16:44