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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1216 OF 2023
Mr. Rizwan Ibrahim Momin
Aged : 43 years, Occu : Teacher
Residing at G3/B Wing, Khatija Apartment
Bazar Road, Bandra (West), Mumbai
(Presently lodged at Judicial Custody at … Appellant
Taloja, Navi Mumbai) (Orig. Accused No.2.)
(At the instance of Kalachowki ATS)
Mumbai … Respondent
Mr. Mubin Solkar a/w. Mr. Tahir Hussain, Mr. Anas Shaikh and Ms. Tahera Qureshi for the Appellants.
Mr. K. V. Saste, Additional PP for the State.
ORAL JUDGMENT
1. Heard.
2. Admit. Learned A.P.P waives notice on behalf of the respondent-State. rrpillai
3. By this appeal, preferred under Section 21 of the National Investigation Agency Act, (‘NIA Act’), the appellant seeks quashing and setting aside of the impugned order dated 19th April 2023 passed by the learned Special Judge under MCOCA, TADA, POTA & NIA, City Civil and Sessions Court, Mumbai in Bail Application (Exhibit-18) in NIA Special Case No. 274 of 2022, by which, the appellant’s application (Exhibit-18) seeking his enlargement on bail, came to be rejected by the said Court. Accordingly, the appellant seeks his enlargement on bail in connection with C.R. No. 18 of 2021 registered with the Kalachowki Police Station, Mumbai, for the alleged offences punishable under Sections 18, 19 and 20 of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’); Sections 115 r/w 302, 201, 34 r/w 120B of the Indian Penal Code.
4. Mr. Solkar, learned counsel for the appellant seeks bail on the ground of parity. He submits that similarly placed coaccused Mohammed Irfan Rehmatali Shaikh i.e. original accused no. 3 has been granted bail by this Court (Coram: Revati Mohite Dere & Gauri Godse, JJ.) vide order dated 29th August 2023. Learned counsel for the appellant submits that the appellant, a teacher was running coaching classes for students and had no knowledge that Zakir Husain (original accused no.1), an auto-rickshaw driver was involved in any terrorist activities, and as such, it cannot be said that there are reasonable grounds for believing that the accusations against the appellant are prima facie true and as such the bar of Section 43-D of the UAPA would not apply. He submits that essentially the charge against the appellant is that of harboring co-accused Zakir, which offence is punishable under Section 19 of the UAPA, where the minimum sentence is three years which may extend upto imprisonment for life.
5. Learned counsel for the appellant submits that the appellant came in contact with Zakir (accused no.1) during the lock-down, when Zakir, an auto-rickshaw driver helped the appellant in connection with his work i.e. distribution of food packages and other social work, since Zakir was plying his auto-rickshaw in the suburbs of Mumbai.
6. According to the learned counsel for the appellant, as Zakir had helped the appellant during the lock-down i.e. by assisting the appellant in distributing aid/relief to persons, the appellant in good faith permitted Zakir to stay with him, on the intervening night of 15th September 2021 to 16th September 2021 i.e. for one night. Learned counsel for the appellant submitted that Zakir had disclosed to the appellant that he had taken money from several persons and that the said persons were after him and were demanding money, pursuant to which the appellant not only permitted Zakir to stay for one night, but also destroyed Zakir’s phone on his request, as Zakir had disclosed to the appellant that he was constantly receiving calls from persons demanding money. He submits that on the request of Zakir, he destroyed Zakir’s phone.
7. Mr. Solkar further submits that certain documents were recovered at the instance of Zakir (accused no.1), i.e. Zakir’s passport etc from behind the sofa in appellant’s house where Zakir had concealed the same. He submits that the said circumstance cannot be said to be incriminating, in as much as, the appellant could have destroyed the said documents, if he knew Zakir had kept some documents there, however, the appellant had no knowledge of the same. He further submits that the CDR’s between the appellant and Zakir cannot be said to be incriminating per se, since the appellant was associated with co-accused Zakir, an auto-rickshaw driver, during the Covid time, as Zakir was regularly plying his auto-rickshaw for the appellant, in connection with the appellant’s work.
8. As far as recovery of five sim cards in closed packets is concerned, at the instance of the appellant, Mr. Solkar submits that the said recovery also cannot be said to be incriminating, in as much as, the sim cards were purchased by the appellant sometime in January 2021 and were not utilised till October 2021, when the recovery was effected. He submitted that the appellant had called for the sim cards, as he wanted to expand his coaching class business.
9. Mr. Solkar further submitted that the appellant has no antecedents and that the appellant is a teacher, running coaching classes for students. He further submits that the appellant apart from running coaching classes for students was also working for an NGO called “Educare Foundation” as its Secretary. He submits that the said NGO was creating Drug Awareness, at Andheri, Sewri, Malad, Jogeshwari, Parel, Govandi etc. He submits that apart from creating drug awareness, the said NGO was also working for scholarship for minority students and was also providing medical help/loan to needy persons, during the pandemic. He further submits that in fact, considering the appellant’s work, the appellant was even issued an ‘Essential Services Pass’ by the DCP Zone-09, Mumbai.
9. Mr. Solkar further submitted that even the money flow chart or CDR chart as reflected in the prosecution case, would reveal that the appellant was not concerned with the money trail nor are there any calls exchanged between the wanted accused - Sagir and the appellant. He submits that considering the material on record and the fact, that the appellant is in custody for almost about three years and the fact, that co-accused – Mohammed Irfan Rehmatali Shaikh, who is identically placed as the appellant, has been released on bail, the appellant’s bail be allowed and the appellant be enlarged on bail.
10. Mr. Saste, learned Additional P.P opposed the grant of bail. He submitted that there is material against the appellant to connect him with the alleged offences:.
(i) That Zakir stayed with the appellant for one night between 15th September
2021.
(ii) The appellant destroyed Zakir’s mobile.
(iii) That at Zakir’s instance, there is recovery of
(iv) Exchange of calls between Zakir and the appellant; and
(v) Recovery of five sim cards at the instance of the appellant.
11. Mr. Saste, learned Additional P.P., however, does not dispute the fact, that the appellant has no antecedents and that the five sim cards that were found in the appellants office, were found in intact condition and that they were not used.
12. Perused the papers. It is the prosecution case, that on 13th September 2021, the ATS received information from their secret sources, that accused No. 1 -Zakir alongwith one person i.e. Anthony @ Anwar, residing in the neighboring country were indulging in terrorist activities. The said Zakir is alleged to have been acting on the instructions of the said person i.e. Anthony for striking terror in Mumbai,Maharashtra and other places and for facilitating the said act, they were collecting people. Pursuant thereto, Police Inspector – Navnath Ghuge, attached to Kalachowki Unit of ATS, lodged an FIR, which was registered vide C.R. No. 18 of 2021 as against Zakir (accused No.1) and Anthony, alleging an offence punishable under Section 18 of UAPA. Pursuant thereto, investigation commenced and the police started searching for Zakir. On 18th September 2021 Zakir came to be arrested from the house of the co-accused–Mohammed Irfan Rehmatali Shaikh. Admittedly, the appellant had not been named in the FIR by the ATS. It appears that the appellant was called for interrogation, soon after the arrest of Zakir on 18th September 2021, however, was arrested on 19th September 2021. It appears that in the interregnum, Zakir made a disclosure statement under Section 27 of the Evidence Act, that he had concealed his documents i.e. Passport etc. at the appellant’s residence, pursuant to which the same was recovered from the appellant’s house from behind the sofa. The said articles were recovered on 19th September 2021.
13. It is pertinent to note, that the appellant has not disputed the fact, that Zakir stayed with him in the intervening night on 15th September 2021 i.e. for one day and also that the appellant had destroyed Zakir’s phone. According to the appellant, he destroyed Zakir’s phone at his instance since he had disclosed to the appellant, that several people were calling him and asking him to return their money
14. As noted above, under Section 19 of the UAPA, the said offence of harboring is punishable with imprisonment for a minimum of three years, which extends upto life imprisonment. The appellant has admittedly also not denied that Zakir had stayed with him for one night. According to the appellant, as Zakir had disclosed to him that people were after him and were demanding money, the appellant allowed Zakir to stay with him for one night.
15. It appears that certain documents were recovered at the instance of Zakir i.e. Zakir’s passport etc. from behind the sofa in the appellant’s house. There is nothing to show that the appellant was aware of Zakir having kept documents in his house behind the sofa.
16. As far as CDRs are concerned, mere exchange of calls between the appellant and Zakir cannot be said to be incriminating, more particularly, when there is no other evidence to show that the appellant had also not made calls to the wanted accused. In the facts, the calls exchanged between the appellant and Zakir cannot be said to be incriminating, because the appellant, a teacher-cum-social worker was distributing essential goods to the needy during the covid time and that during the said time, was using Zakir’s auto-rickshaw to ply the said goods.
17. As far as recovery of 5 sim cards at the instance of the appellant is concerned, it appears that the appellant had purchased the said sim cards in January 2021 from a witness, who has stated that the appellant has asked for 15- 20 sim cards, as he wanted to expand his coaching classes. The witness has stated that although the appellant wanted 15-20 sim cards, he handed over five sim cards to the appellant. Admittedly, the said sim cards were not used by the appellant and were found intact at the time of recovery of the sim cards on 1st October 2021 (almost 9 months after purchase of the sim cards).The said sim cards were found in the appellants office.
18. It is also pertinent to note, that the prosecution in its brief facts of the case, have given the ‘money flow chart’. In the said ‘money flow chart’, name of the appellant is not mentioned. Admittedly, no calls have also been exchanged between the wanted accused-Sagir and the appellant. Calls are only exchanged between Sagir and Zakir. The role of the appellant is similar to that of co-accused Mohammed Irfan Rehmatali Shaikh, who has been enlarged on bail. No doubt there is a statutory embargo under Section 43-D(5) of the UAPA, but that embargo per se does not act as an impediment to grant of bail, in the event, the court comes to a conclusion that there are no reasonable grounds to believe that the allegations are prima facie true.
19. Considering the material on record and having perused the statements, we are prima facie of the view that the circumstances relied upon by the prosecution are not of such a nature, so as to sustain a reasonable belief that the accusations against the appellant are prima facie true. Thus there is no impediment to grant bail under Section 43-D(5) of the UAPA.
20. Infact, the prosecution has failed to point out any material to show that the appellant was aware of the activities of Zakir, an auto-rickshaw driver or that the appellant had participated in/was aware of any terrorist activities. The appellant is in custody for almost three years. Minimum sentence as noted aforesaid, under Section 19 of the UAPA for harboring is three years, which may extend up to life imprisonment. The trial of the appellant has not commenced.
21. The Appellants role is at par with co-accused – Mohammed Irfan Rehmatali Shaikh, who has been granted bail. It is also pertinent to note that even otherwise the trial of the appellant has not commenced, in as much as, charge has not been framed in the case till date.
22. Considering what is stated aforesaid, we are satisfied that the appellant has made out a case for grant of bail and as such the appeal is allowed on the following terms: ORDER
(i) The appeal is allowed.
(ii) The impugned order dated 19th April 2023, passed by the learned Special Judge under MCOCA, TADA, POTA & NIA, City Civil and Sessions Court, Mumbai in Bail Application (Exhibit-18) in NIA Special Case No. 274 of 2022, stands quashed and set aside;
(iii) The appellant be enlarged on bail, on executing
PR Bond in the sum of Rs.50,000/- with one or more sureties in the like amount, to the satisfaction of the learned Judge, NIA Court.
(iv) The appellant shall report to the office of the NIA,
Mumbai Branch, Mumbai, on the first Saturday of every month from 10.00 am to 12.00 noon, till the conclusion of the trial.
(v) The appellant shall not, either himself or through any other person, tamper with the prosecution evidence and give threats or inducement to any of the prosecution witnesses;
(vi) The appellant shall not leave the jurisdiction of
(vii) The appellant shall not leave India, without the prior permission of the NIA Court.
(viii) The appellant shall surrender his passport, if any, before the NIA Court, before his release.
(ix) The appellant shall inform his latest place of residence and mobile contact number immediately after being released and/or change of residence or mobile details, if any, from time to time to the Court seized of the matter and to the Investigating Officer of the concerned Police Station;
(x) The appellant to co-operate with the conduct of the trial and attend the NIA Court on all dates, unless exempted;
(xi) The appellant shall file an undertaking with regard to clauses (iv) to(x) before the NIA Court, within two weeks of his release.
(xii) If there is breach of any of the aforesaid conditions, the prosecution shall be at liberty to seek cancellation of the appellant’s bail.
23. Appeal is allowed in the aforesaid terms and is accordingly disposed of.
24. It is made clear that the observations made herein are prima facie, and the learned Special Judge shall decide the case on its own merits, in accordance with law, uninfluenced by the observations made in this order.
25. All concerned to act on the authenticated copy of this judgment.
GAURI GODSE, J. REVATI MOHITE DERE, J.