Asif Iqbal Tanha v. State of NCT of Delhi

93. Offences against laws with respect to any of the matters in this List.”

13. It further requires to be noticed that Entry 1 of List-II refers to matters of ‘public order’, which subject therefore falls within the legislative 9 133 2021:DHC:1882-DB competence of the State Legislature; and Entry 1 of List-III relates to matters of ‘criminal law’, including all matters included in the IPC but excluding offences against laws with respect to any matter specified in List-I or List-II and excluding the use of Naval, Military, Air Force or any other Armed Forces of the Union. The purpose of referring to Entry 1 of List-I (Defence of India) and Entry 2 of List-II (Public Order) is to take notice of the fact that since UAPA is a central legislation, it would have been enacted in relation to the ‘defence of India’ as contradistinct from ‘public order’, since it must be presumed that when the Parliament enacted the UAPA, it was acting within the scope of its powers under the constitutional scheme and was therefore enacting a legislation relating to a matter that was within its competence under Article 246 and the Seventh Schedule of the Constitution.

14. Post the amendments made from time-to-time, as of date, the provisions of the UAPA that are relevant for the purposes of the present matter are extracted below:

10 133 (m) “terrorist organisation” means an organisation listed in the First Schedule or an organisation operating under the same name as an organisation so listed; ….. (o) “unlawful activity”, in relation to an individual or association, means any action taken by such individual or association (whether by committing an act or by words, either spoken or written, or by signs or by visible representation or otherwise),—

(i) which is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or

(ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or

(iii) which causes or is intended to cause disaffection against

India; * * * * * ”

15. Before we examine the provision relating to bail under UAPA, it would benefit if we briefly examine the bail provisions under other similar statutes. Grant of bail has been restricted and stringent conditions have been engrafted for admitting accused persons on bail under several other legislations relating to serious offences. It would be useful at this point to allude to the construction placed by the courts upon such provisions. A comparative chart of the bail provisions under such comparable legislations is given as Annexure - A to this judgment. Bail under the Narcotic Drugs and Psychotropic Substances Act 1985 (‘NDPS Act’)

16. Interpreting section 37 of the NDPS Act, in State of Kerala & Ors. vs. Rajesh & Ors., the Hon’ble Supreme Court says: “20. The expression “reasonable grounds” means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provision requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. In the case on hand, the High Court seems to have completely overlooked the underlying object of Section 37 that in addition to the limitations provided under the CrPC, or any other law for the time being in force, regulating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for.” cf. Annexure-A to judgment.

15 133

17. In Union of India vs. Shiv Shanker Kesari, the Hon’ble Supreme Court has said:

19. A Constitutional Bench of the Hon’ble Supreme Court in Kartar Singh vs. State of Punjab, while inter alia determining the constitutional validity of Section 20(8) of TADA, held:

20. Dealing with section 21 MCOCA, which is the bail provision under that statute, in State of Maharashtra vs. Vishwanath Maranna Shetty, the Hon’ble Supreme Court holds:

21. Section 49 (6) and (7) POTA has been explained by the Hon’ble 9 10 Supreme Court in State of T.N. vs R.R. Gopal alias Nakkeeran Gopal, as follows:

24. Harmonising the power to grant bail on considerations of violation of Part-III of the Constitution with the restrictions imposed by UAPA and explaining that the nature of section 43D(5) UAPA is less stringent than that of section 37 NDPS, in Union of India vs. K.A. Najeeb, a 3- Judge Bench of the Hon’ble Supreme Court says:

(iv) In the alternative it is submitted, that though the material on record does not even make-out the offence of engaging in any unlawful activity as defined in section 2(1)(o) and as punishable under section 13 of UAPA, even assuming that that issue is debatable, the harsh provisions against release on bail under section 43D(5) have no application to an offence punishable under section 13, since it falls under Chapter III of UAPA;

(v) Insofar as the allegations of an offence under section 124A IPC are concerned, it is submitted that serious as these allegations may be, they are still only to be dealt with under the ordinary penal law and do not take the matter into the scope and ambit of UAPA; and therefore section 43D(5) UAPA has no application.

26. To flesh-out his submissions, Mr. Aggarwal has drawn the attention of this court to certain portions of the subject charge-sheet, which portions are essentially the same as those referred to by the learned ASG, which are extracted and discussed below in this judgment. Respondent’s Submissions

27. Written Submissions dated 22.03.2021 have been filed on behalf of the respondent/Delhi Police, summarising the arguments made by Mr. Aman Lekhi, learned Additional Solicitor General appearing on their behalf, which are detailed herein below. Dealing with the role of the appellant in the offences alleged, the learned ASG has relied upon certain portions of the subject FIR and the subject charge-sheet, which 29 133 2021:DHC:1882-DB are extracted as screenshots in Annexure - B to this judgment for ease of reference.

(i) That considering the “totality of evidence, including the statements of the protected witnesses, the documentary evidence and other evidences collected”, the complicity of the appellant in the offences of which he is accused is prima facie established, within the meaning of section 43D(5) UAPA. It is urged that the test to justify rejection of bail is whether on the evidence available it is possible to arrive at the conclusion that the case against the appellant is prima facie true. It is not the purport of a bail proceeding that evidence be weighed and benefit of doubt be given to the appellant.

(ii) It is argued that the present case is one of “serious disturbance of public order undermining security of state” as distinguished from one directed against the individuals, and the acts in their degree, extent and reach justifying the invocation of the provisions under which the appellant is accused. Moreover, it is submitted that the “context and circumstances in which the acts were committed would clearly cause reactions affecting not merely specific individuals but disorders of most extreme gravity”.

(iii) It has been argued that a communally surcharged environment was deliberately created by the conspirators, sharply dividing the religious communities hardening cleavages and eliminating any possibility of consensus, apart from disavowing all belief in the efficacy and worth of the existing system and portraying the 30 133 2021:DHC:1882-DB political establishment as inimical to a religious community. Having roused sentiments and having created a sense of insecurity, the “likelihood that any act or disorder would have the potential of tumultuous consequences could not only be foreseen but it is apparent that the conspirators desired these consequences”; and the intent to disrupt the unity and strike terror is obvious. Not merely physical and mental damage but prolonged psychological effect was produced affecting the society as a whole, disturbing its even tempo and tranquility and creating a general sense of fear and insecurity.

(iv) Relying upon Kartar Singh (supra), it has been submitted that the proviso to section 43D(5) UAPA bars release on bail if, on perusal of the case diary or report under section 173 Cr.P.C., the court is of the opinion that there are “reasonable grounds for believing that the accusations against such persons are prima facie true”; and that the source of the power of the Special Court to grant bail is not in section 43D(5) UAPA which only places limitations on the grant of bail is referable to section 437 Cr.P.C. since the Special Court is a Court other than the High Court and Court of Sessions. While the power of the High Court and Court of Sessions to grant bail is conferred by section 439 Cr.P.C. which, unlike section 437 Cr.P.C., is unfettered by any conditions or limitations under section 437 Cr.P.C., however, bail cannot be granted “if there appear to be reasonable grounds for believing that an accused is guilty of an offence punishable with death or imprisonment for life”. 31 133

(v) Referring to the observations of the Supreme Court in Martin

Burn Ltd. vs. R.N. Bangerjee, the State has argued that a prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed; and that while determining whether a prima facie case has been made-out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.

(vi) It is also pointed-out that in State of Gujarat vs. Gadhvi

Rambhai Nathabhai and Ors, while construing section 20(8) TADA, which provision imposed a far more onerous responsibility than the one under section 43D(5) UAPA, the Hon’ble Supreme Court held that the power to grant bail cannot be exercised in a manner virtually amounting to an order of acquittal, giving benefit of doubt to the accused after weighing the evidence collected during investigation.

(vii) The learned ASG has read the verdict of the Hon’ble Supreme

Court in Watali (supra) to submit that the Hon’ble Supreme Court has said that at the stage of granting or denying bail under UAPA, an elaborate examination or dissection of the evidence is not required and the court is merely expected to record a finding on the basis of broad probabilities regarding the AIR 1958 SC 79. (1994) 5 SC 111. 32 133 2021:DHC:1882-DB involvement of the accused in the commission of the stated offence or otherwise. It is pointed-out that relying on Watali (supra), this court in Ghulam Mohd. Bhat vs. National Investigating Agency, has said that the determination to be made by this court at the stage of dealing with a bail application is within a very narrow compass and what the court is required to examine is the issue whether there are reasonable grounds for believing that the accusations made against the appellant are “prima facie true”, which means the test to justify rejection of bail is whether on the evidence available it is possible to arrive at the conclusion that the case against the appellant is prima facie true.

(viii) The State says therefore, that the case against the appellant is one of conspiracy to commit a crime, which is itself punishable as a substantive offence and every individual offence committed pursuant to conspiracy is a separate and distinct offence; and though all conspirators may not be liable for an individual offence, they are all guilty of the offence of conspiracy. It is further argued that it not necessary to prove that the parties actually came together and expressly agreed to have a common design; nor that they knew all details of the conspiracy, as long as the conspirators took several steps all towards the realisation of the object of conspiracy through a continued period of time, which it is urged, the record clearly shows in the instant case.

33 133

(ix) It is submitted that a perusal of the record will show that the appellant and the other conspirators, by their acts, pursued the same object, often by the same means, one performing one part of the act and the other performing the other part, so as to complete it with a view to attainment of the same object.

(x) The State says that even if the objective of the conspiracy did not originate with the appellant or he joined after it was formed, he would even then be as guilty; and whatever may have been said or done by any of the conspirators in pursuance of the common design would be considered to be an act of the appellant.

(xi) The State in fact submits that despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions and that the rule of admissibility of evidence is relaxed in cases of conspiracy, since the principle of agency is attracted.

(xii) Most importantly, it is the case of the prosecution, that the conspiratorial design contemplated something much more dire and malevolent, with repercussions on public tranquility that are far more serious than ordinary forms of political protest. It is further alleged that the chakkajam which was planned was with a “difference” and the intention was “to stop milk and water” and was to be done not only in Delhi but in “every place where it was possible for Muslims” to organise it. It was intended to “cause riots and fear”. To support this submission the State draws attention to the portion of the subject charge- 34 133 2021:DHC:1882-DB sheet extracted as Screenshot 1 and 2 in Annexure - B attached to this judgment.

(xiii) As evidence of the “general agreement between the conspirators with regard to the common purpose”, the State draws attention of this court to a portion of the purported statement dated 19.06.2020 of one of protected witnesses named Hector. To support this submission the State draws attention to the portion of the subject charge-sheet extracted as Screenshot 3 in Annexure - B.

(xiv) The State alleges thereby that “a radical approach animated by extremist intent giving a different orientation to words of ordinary connotation like chakkajam is self-evident”. To support this, the State has relied upon page No. 2052 of the subject charge-sheet as well as the statement of a protected witness named Bond, which portions are extracted as Screenshot 4 and 5 in Annexure - B.

(xv) The CAA only provided an excuse for the agitation, the real motivation of which was to denounce the existing system and create extreme disenchantment with it. Reliance has been placed by the State on the portion at page 2048 of the chargesheet, which has been extracted as Screenshot 6 in Annexure -

(xvi) It is argued that the subject charge-sheet further shows that the actions of the conspirators was premeditated, which is apparent from the meetings of 16.12.2019 and 17.12.2019, which 35 133 2021:DHC:1882-DB followed the protest at the Parliament and at Jamia University on 13.12.2019 and 15.12.2019 respectively; and the two events having failed to yield desired results, the conspirators realised that stray or isolated events would not serve in achieving the objective of widespread turmoil, for which reason at the meetings of 16.12.2019 and 17.12.2019, in which the appellant had also participated, it was decided to hold protests in “an organised and planned way” and for this purpose the JCC was constituted; which, it is alleged, used religious identity as the tool to achieve its objectives. To support this submission, attention of the court is invited to pages 2045, 2057-59, 2067-68 and 2070 of the subject charge-sheet, which portions are extracted as Screenshot 7, 8a-8c, 9a-9b and 10 in Annexure - B.

(xvii) The above alleged objective of the JCC is stated to be corroborated by the statements recorded under section 164 Cr.P.C. of the protected witness Bond and James.

(xviii) The State contends that the object of JCC, with which the appellant is alleged to have been associated, was aligned with that of Muslim Students of JNU being run by one of the coaccused/co-conspirator; and was to debunk the secular values of the Constitution and to aggravate differences between the communities so as to cause social disharmony and bring out a feeling of disunity.

(xix) It is also alleged that the co-conspirators committed themselves to “avoiding over secularisation of movement”, for which 36 133 2021:DHC:1882-DB reference is made to portions of pages 2025 - 26 of the subject charge-sheet, which are extracted as Screenshot 11 in Annexure - B.

(xx) It is contended that the pamphlets were inflammatory and incendiary, were deliberately provocative and seditious in content and clearly undermined the State. In this regard the State refers to page 2040 of the subject charge-sheet, which is extracted as Screenshot 12 in Annexure - B.

(xxi) Mr. Lekhi contends that the CAA had nothing to do with Indian

Muslims; that there was no project to disenfranchise and definitely nothing to justify the allegation that Muslims will be put in detention camps. It is alleged that the endeavour of the co-conspirators was therefore only to inflame passions, whip-up religious frenzy and foment violence. The “burning” of Assam, “killing” of people and “disruption” of Delhi was intended towards that end.

(xxii) It is urged that there was thus, an “emphasis upon division and polarisation through narrowing the areas of mutual engagement by emphasising ethnocultural nationalism over cosmopolitanism and using the excuse of a political protest to give primacy to religion”; and a general disenchantment was sought to be created affecting the security of the State. Reference in this regard was made by the State to the statement dated 25.06.2020 of protected witness named Romeo, which is extracted as Screenshot 13 in Annexure - B, alleging that the actions therefore had the tendency of creating public disorder of 37 133 2021:DHC:1882-DB the most extreme gravity and demonstrated not just disaffection to the country but disloyalty to it.

(xxiii) Though it is conceded that the appellant was excluded from the

JCC after he was named in other FIRs, it is contended that such exclusion was nominal and the appellant continued to be associated with and participated in the objects of the conspiracy, which it is alleged, is apparent from his involvement in the meeting at Jamia University on 22.02.2020.

(xxiv) It is argued that the “voice of sanity” (allegedly of one of the protected witness) was shut-out. Attention of the court was drawn in this regard to portions of pages 2205-06 of the subject charge-sheet, which portions are extracted as Screenshot 14a-14b in Annexure - B; and it is submitted that the ill-boding intent of the secrecy of the real objective was apparent from the message of one of the co-conspirator / co-accused advising members from desisting sharing the real plans of conspirators in public. Reference in this regard was made to the portion of the subject charge-sheet extracted as Screenshot 15 in Annexure -

(xxv) It is alleged that in pursuance of the object, the “continued steps” towards the “shared intent” is apparent from page 2210 of the subject charge-sheet, which portion is extracted as Screenshot 16 in Annexure - B.

(xxvi) The State further argues that the appellant was part of the JCC meeting which was held on 22.02.2020 which further shows 38 133 2021:DHC:1882-DB that his so-called exclusion on 24.01.2020 was “mere trickery to disguise his continued involvement and participation in the conspiracy”; and that he “remained party” to the plan to affect public tranquility by “engineering riots”. To support this allegation, the State relies upon the statement of protected witnesses Bond and James which have been extracted as Screenshot 17 and 18 in Annexure - B.

(xxvii) It is urged that the fact that the protest planned was “not a typical protest” normal in the political culture or democracy but one far more evil and injurious geared towards extremely grave consequences. To bolster this contention, the State relies upon alleged statements of protected witness Victor (page 1527-1531 of the subject charge-sheet), Silver (page 1542-1545), Ct. Sunil (page 1662-1667), Ct. (GD) Mukesh (page 1681-1682), HC (GD) G. Nallaperumal (page 1682-1684 ) and Ct. (GD) Srinivas Rao (page 1684-1685), SI. Bheesham Rana (page 1801-1802) and Harender at (page 1802-1803), which are extracted as Screenshot 19a-19e, 20a-20c, 21, 22, 23, 24, 25 and 26 in Annexure - B. (xxviii)It is alleged that the breach of public order was neither small nor insignificant but was grave and serious affecting public tranquility, impacting unity and integrity and creating terror; and that not merely law and order was affected but the even “tempo of the life of the community was also disturbed”.

(xxix) The State contends that the subject charge-sheet shows that there were 53 deaths including those of public functionaries, 39 133 2021:DHC:1882-DB over seven hundred people were injured, deployment of an additional police force of 7800 was needed over and above the 2200 policemen already deployed; that “protests were coordinated across Delhi and covered diverse areas like Jamia, Seelampur, Khajuri, Hauzrani, Khureji and Jafrabad”, with there being plans to extend this protest across other cities of the country; and that there was extensive and widespread destruction of property involving settlement of claims of approximately Rs. 22 crores. As many as 16,381 PCR calls were received between 22.02.2020 and 26.02.2020; and cartridges, knives and swords, broken glass bottle (used for petrol bombs) and even scissors were weaponised and loose stones were liberally used.

(xxx) It is argued that the activity in its essential quality may not be different from another act but in its potentiality and in its effect upon public tranquility there can be a vast difference. Reliance in this behalf is placed on the decision of the Hon’ble Supreme Court in Arun Ghosh vs. State of West Bengal,:

(xxxi) It is further argued that the same principle was reiterated by the

Hon’ble Supreme Court in Giridhari Parmanand Vadhava vs. State of Maharashtra, in the context of what constitutes a terrorist act, where the Hon’ble Supreme Court holds that it is the impact of the crime and its fallout on the society and potentiality of such crime in producing fear in the minds of the people or a section of the people which makes a crime, a terrorist activity under section 3(1) of TADA.

(xxxii) Much emphasis was laid by the learned ASG on the word ‘likely’ being part of section 15, to urge that even presuming that ‘intention’ is not held to be disclosed on the appellant’s part, the ‘likelihood’ of what section 15 contemplates will attract the provision. It is argued that the word ‘likely’ means “of such nature or so circumstantial as to make probable”. (xxxiii)The State accordingly alleges that the actions of the coconspirators, including the appellant were (i) premeditated (ii) directed at a wider audience (iii) involved attacks on symbolic targets including civilians (iv) entailed acts of violence seen by the society as “extra normal” intended to provoke an

41 133 2021:DHC:1882-DB overreaction serving as a catalyst for more general conflict and publicised as a political cause inducing both fear and a sense of insecurity, by reason of which the characteristics of ‘terrorism’ as set-out by Paul Wilikson and cited in People’s Union For Civil Liberties and Anr. vs. Union of India, (‘PUCL’, for short) and Mohd. Iqbal M. Shaikh and Ors. vs. State of Maharashtra are duly satisfied. The State argues that under the UAPA, it is not just the intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity, not just the intent to strike terror but the likelihood to strike terror, not just the use of firearms but the use of any means of whatsoever nature, the means not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, constitutes terrorist act within the meaning of section 15 of UAPA. (xxxiv)It is urged that moreover, under section 18 of UAPA, not merely conspiracy to commit a terrorist act but an attempt to commit or advocating the commission or advising it or inciting or directing or knowingly facilitating commission of a terrorist act is also punishable. In fact, even acts preparatory to commission of terrorist acts are punishable under section 18 of UAPA.

(xxxv) It is submitted that the objection of the appellant that a case is not made-out under UAPA is based on assessing the degree of sufficiency and credibility of evidence not the absence of its

42 133 2021:DHC:1882-DB existence but the extent of its applicability; but that such objection of the appellant is outside the scope of section 43D(5) of the UAPA. (xxxvi)Distinguishing the present case from that in K.A. Najeeb (supra), the State argues that the reason for grant of bail in that case was “long period of incarceration and unlikelihood of the trial being completed anytime in the near future”; and that in K.A. Najeeb (supra), the High Court had relied upon a judgment of the Hon’ble Supreme Court in Shaheen Welfare Association vs. Union of India and Ors, wherein it was held that “no one can justify gross delay in disposal of cases when undertrial perforce remains in jail giving rise to possible situations that may justify invocation of Article 21”; and that the Hon’ble Supreme Court did not interfere with the order passed by the High Court because of “there being no likelihood of trial being completed within the reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence”. It is pointed-out that in State of Maharashtra vs. Abdul Hamid Haji Mohammed, notwithstanding section 19 of TADA providing for an appeal to the Supreme Court from an order passed by the Designated Court, the Hon’ble Supreme Court had yet held that in extreme cases where accusations are ex facie not constituting an offence, power under Article 226 of the Constitution can be invoked but (1996) 2 SC 616.

43 133 2021:DHC:1882-DB that in the present case the appellant has not chosen to invoke Article 226 of the Constitution. Analysis of section 15 UAPA

28. Before applying the additional conditions engrafted in section 43D(5) UAPA, it would be advisable to first analyse if the allegations against the appellant contained in the subject charge-sheet even prima facie disclose the commission of an offence under sections 15 and 18 of the UAPA. Although section 15 of the UAPA defines ‘terrorist act’ and section 18 provides for ‘punishment for conspiracy for committing a terrorist act, including an attempt to commit or advocating, abetting, advising or inciting the commission of a terrorist act, as also of any act preparatory to the commission of a terrorist act’, the word ‘terrorism’ or ‘terror’ has nowhere been defined in the UAPA. For completeness it may be noticed that section 2(1)(k) of the UAPA says that the phrase ‘terrorist act’ shall have the meaning as assigned to it in section 15 and that the expressions ‘terrorism’ and ‘terrorist’ shall be construed accordingly.

29. What however, is ‘terrorism’ or ‘terror’, from which the meaning of ‘terrorist act’ and other related words may be derived?

30. The concept and construction of terrorism has been dealt-with by the Hon’ble Supreme Court in relation to earlier legislations inter alia in the decisions discussed below.

31. In Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors., defining terrorism, the Hon’ble Supreme Court says:

44 133 “7. ‘Terrorism’ is one of the manifestations of increased lawlessness and cult of violence. Violence and crime constitute a threat to an established order and are a revolt against a civilised society. ‘Terrorism’ has not been defined under TADA nor is it possible to give a precise definition of ‘terrorism’ or lay down what constitutes ‘terrorism’. It may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole. There may be death, injury, or destruction of property or even deprivation of individual liberty in the process but the extent and reach of the intended terrorist activity travels beyond the effect of an ordinary crime capable of being punished under the ordinary penal law of the land and its main objective is to overawe the Government or disturb harmony of the society or “terrorise” people and the society and not only those directly assaulted, with a view to disturb even tempo, peace and tranquillity of the society and create a sense of fear and insecurity. A ‘terrorist’ activity does not merely arise by causing disturbance of law and order or of public order. The fall out of the intended activity must be such that it travels beyond the capacity of the ordinary law enforcement agencies to tackle it under the ordinary penal law. Experience has shown us that ‘terrorism’ is generally an attempt to acquire or maintain power or control by intimidation and causing fear and helplessness in the minds of the people at large or any section thereof and is a totally abnormal phenomenon. What distinguishes ‘terrorism’ from other forms of violence, therefore, appears to be the deliberate and systematic use of coercive intimidation. More often than not, a hardened criminal today takes advantage of the situation and by wearing the cloak of ‘terrorism’, aims to achieve for himself acceptability and respectability in the society because unfortunately in the States affected by militancy, a ‘terrorist’ is projected as a hero by his group and often even by the misguided youth. It is therefore, essential to treat such a criminal and deal with him differently than an ordinary criminal capable of 45 133 2021:DHC:1882-DB being tried by the ordinary courts under the penal law of the land. Even though the crime committed by a ‘terrorist’ and an ordinary criminal would be overlapping to an extent but then it is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every ‘terrorist’ may be a criminal but every criminal cannot be given the label of a ‘terrorist’ only to set in motion the more stringent provisions of TADA. The criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated by Section 3(1) of the Act by use of such weapons as have been enumerated in Section 3(1) and which cause or are likely to result in the offences as mentioned in the said section.”

32. TADA deals with activity “which cannot be classified as a mere law and order problem or disturbance of public order or even disturbance of the even tempo of the life of the community of any specified locality, but is of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies because the intended extent and reach of the criminal activity of the ‘terrorist’ is such which travels beyond the gravity of the mere disturbance of public order even of a ‘virulent nature’ and may at times transcend the frontiers of the locality...”, as explained by the Hon’ble Supreme Court in Kartar Singh (supra):

33. Since the theme of section 15 is evidently the intent or likelihood of an act threatening (i) the security of the State, described variously in the section as unity, integrity, security, economic security, sovereignty and

(ii) of striking terror, it is necessary to understand the concept and distinction between “law and order”, “public order” and “security of the State”, as eloquently explained by Hidayatullah, J. (as the learned Chief Justice then was) of the Hon’ble Supreme Court in Ram Manohar Lohia (Dr) vs. State of Bihar:

35. Illustrating what terrorist acts might be, in PUCL (supra), the Hon’ble Supreme Court says:

36. More recently in Yakub Abdul Razak Memon vs State of Maharashtra through CBI, Bombay, the Hon’ble Supreme Court held:

37. In Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra & Ors, dealing with the constitutionality of MCOCA and opining on the distinction between ‘public order’ and ‘security of the State’, the Hon’ble Supreme Court says:

38. In the same judgment observing that a court must always presume that a statute was within the legislative competence of the legislature that drafted it, the Hon’ble Supreme Court further says: “39. It is also a cardinal rule of interpretation that there shall always be a presumption of constitutionality in favour of a statute and while construing such statute every legally permissible effort should be made to keep the statute within the competence of the State Legislature. (Reference may be made to Charanjit Lal Chowdhury v. Union of India [AIR 1951 SC 41], T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481] and Karnataka Bank Ltd. v. State of A.P. [(2008) 2 SCC 254] )” 54 133

39. In the same judgment the Hon’ble Supreme Court has also explained the intention of Legislature in enacting UAPA and has said that UAPA falls under Entry 1 of List-I of the Seventh Schedule of the Constitution:

40. Another sacrosanct principle of interpretation of penal provisions is that they must be construed strictly and narrowly, to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, the more stringent a penal provision, the more strictly it must be construed. A brief reference to the decisions of the Hon’ble Supreme Court in this behalf may be made here.

41. In A.K. Roy vs. Union of India and Ors., dealing with the validity of certain provisions of the National Security Ordinance/Act, which were challenged as unconstitutional on the ground of vagueness, and which ordinance provided for preventive detention, the majority of a 5-Judge Bench of the Hon’ble Supreme Court partly accepted the challenge, holding that what constitutes ‘essential services and supplies’ should have been specified and published in advance by a law, order or notification, and says:

43. In Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra and Anr, a 3-Judge Bench of the Hon'ble Supreme Court says:

44. To complete the analysis as regards the presumption of constitutionality of a statute, a brief reference may also be made to this presumption as explained succinctly in Shri Ram Krishna Dalmia & Ors. vs. Shri Justice S.R. Tendolkar & Ors, where a 5-Judge Bench of the Hon’ble Supreme Court says: AIR 1958 SC 538. 63 133 “11. …The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish— …

(c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and un-known reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. The above principles will have to be constantly borne in mind by the court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of the laws.” 64 133

45. Since the event that led to the registration of the subject FIR arose from a protest allegedly organised and arranged inter alia by the appellant, it would be worthwhile at this point to appreciate the constitutional protection offered under our jurisprudence to the ‘right to protest’, which right has been repeatedly and unequivocally been held to be part of the fundamental rights guaranteed under our Constitution. The right to protest has been discussed and expatiated in various judgements, a reference to some of which is made below.

46. In Mazdoor Kisan Shakti Sangathan vs Union of India and Anr, the

50. Furthermore, in the same judgment the Hon’ble Supreme Court says: “...it is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond 73 133 2021:DHC:1882-DB the normal frontiers of the ordinary criminal activity. Every ‘terrorist’ may be a criminal but every criminal cannot be given the label of a ‘terrorist’ only to set in motion the more stringent provisions of TADA …”

51. The same sense and meaning has been echoed by the Hon’ble Supreme Court in PUCL (supra) where, quoting Mohd. Iqbal M Shaikh, the “…it may be possible to describe it as use of violence when its most important result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole …”

52. Furthermore, in PUCL (supra) the Hon’ble Supreme Court also observes that: “... Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather, it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together...” 74 133

53. Again, in Yakub Abdul Razak Memon (supra), the Hon’ble Supreme Court refers to acts of terrorism by saying that: “... Acts of terrorism can range from threats to actual assassinations, kidnappings, airline hijackings, bomb scares, car bombs, building explosions, mailing of dangerous materials, computer based attacks and the use of chemical, biological, and nuclear weapons—weapons of mass destruction (WMD)”

54. In our view therefore, notwithstanding the fact that the definition of ‘terrorist act’ in section 15 UAPA is wide and even somewhat vague, the phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC. We remind ourselves of the principle laid down by the Constitution Bench of the Hon’ble Supreme Court in A.K. Roy (supra) where it said that the requirement that crimes must be defined with an appropriate definitiveness is a fundamental concept of criminal law and must be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi vs. Union of India; and that the underlying principle is that every person is entitled to be informed as to what the State commands or permits and the life and liberty of the person cannot be put on peril of an ambiguity. The Constitution Bench further says that to stand true to this principle what is expected is that the language of the law must contain adequate warning of the conduct

75 133 2021:DHC:1882-DB which may fall within the proscribed area ‘when measured by common understanding’. Most importantly, the Constitution Bench observes, and it is imperative that we extract the words again: “... These expressions, though they are difficult to define, do not elude a just application to practical situations. The use of language carries with it the inconvenience of the imperfections of language...”. “...We must, however, utter a word of caution that since the concepts are not defined, undoubtedly because they are not capable of a precise definition, courts must strive to give to those concepts a narrower construction than what the literal words suggest...”.

55. Also noteworthy are the words of another Constitution Bench of the Hon’ble Supreme Court in Sanjay Dutt (supra) to the effect that when law visits a person with serious penal consequences, the courts must take extra care to ensure that those to whom the legislature did not intend to be covered by the express language of the statute “are not roped in by stretching the law”.

56. It is therefore clearly the position in our jurisprudence that where a provision of law engrafting serious penal consequences is vague, such provision must be construed narrowly in order to bring it within the constitutional framework; and must be applied in a just and fair way, lest it unjustly ropes within its ambit persons whom the Legislature never intended to punish. Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency ‘crying wolf’.

57. In our opinion, the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring 76 133 2021:DHC:1882-DB terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the ‘Defence of India’, nothing more and nothing less. Absent this, UAPA could not have been enacted by the Parliament since the only entries in List-I of the Seventh Schedule to the Constitution that would bring the statute within the legislative competence of the Parliament are Entry 1 read with Entry 93 relating to the Defence of India and offences with respect to the Defence of India. It was neither the intent nor purport of enacting UAPA that other offences of the usual and ordinary kind, however grave, egregious or heinous in their nature and extent, should also be covered by UAPA, since such conventional matters would have fallen within Entry 1 of List-II (State List) and/or Entry 1 of List-III (Concurrent List) of the Seventh Schedule to our Constitution. In order to lean in favour of constitutionality of the provisions of section 15, 17 and 18 of the UAPA, as we must, it must be taken that the Parliament acted within the realm of its legislative competence and that UAPA came to be enacted and amended in 2004 and 2008 to address issues relating to the ‘Defence of India’.

58. In the above view of the scope and ambit of UAPA, and in particular sections 15, 17 and 18 thereof, and based on the allegations made in the subject charge-sheet against the appellant as highlighted before us on behalf of the State, what we find is the following: (a) The essential aim and intent of the activities, in which the appellant is alleged to have been involved, was to orchestrate and participate in a protest across the city of Delhi to oppose the enactment of the CAA, which was perceived as a law 77 133 2021:DHC:1882-DB intended to deprive members of the Muslim community of citizenship of the Republic of India; (b) The allegation is that, alongwith co-conspirators, the appellant engaged in various steps and actions, the object of which was to organise a protest and take it to a crescendo that would lead to a chakkajam, namely to cause complete stoppage of vehicles and blockade of roads, so that supplies and services to the people of Delhi are adversely affected; and also to spread fear and cause riots;

(c) There is no allegation in the subject charge-sheet that the appellant was leading the co-conspirators, who are alleged to have been indulging in the aforestated acts; nor that he had formed the JCC; nor that he was even the group administrator of any of the WhatsApp groups, which, the allegation goes, were formed with the sinister aim of organising a protest against the CAA that would cause havoc amongst the ordinary citizenry;

(d) The appellant is stated to be a member of the SIO and the

JCC, admittedly neither of which is a banned organisation or terrorist organisation listed in the First Schedule to the UAPA. The JCC in fact is not even an organisation but only an inchoate committee, defined perhaps only by the WhatsApp group that it runs; (e) The common refrain running through the subject chargesheet, as seen from the extracts cited and relied upon by the 78 133 State, is that the appellant’s co-conspirators directed and instructed him to do certain things, including to visit Muslim areas, coordinate with local Imams, and help in orchestrating the anti-CAA protests at various locations in Delhi; (f) There is no allegation in the subject charge-sheet that the anti-CAA protest extended even to the whole of the National Capital Territory of Delhi; and a perusal of the subject charge-sheet shows that the protest and the disruptions it is alleged to have caused were restricted to North-East Delhi. It would therefore be a stretch to say that the protest affected the community at large for it to qualify as an act of terror; (g) In fact, from the extracts of the subject charge-sheet cited on behalf of the State, which are the most material allegations against the appellant, this court is able to discern only one specific, particular and overt act that the appellant is stated to have committed, namely that he handed over a SIM card given to him by someone else, to a co-conspirator / coaccused, which, it is further alleged, was used by the said coaccused to send messages on a WhatsApp group. Other than this one action that is specifically attributed to the appellant, this court is unable to discern any other act or omission attributed specifically to the appellant; (h) Furthermore, there is no allegation whatsoever that the arms, ammunition and other articles, that were supposedly to be used as weapons, were recovered from or at the instance of the appellant. In this context the provisions of section 43E of 79 133 2021:DHC:1882-DB the UAPA may be noted, which contain a presumption against an accused person, to the effect that unless the contrary is shown, the court shall presume that the accused had committed an offence under section 15 provided it is proved that the arms, explosives or other substances were recovered from the possession of the accused and there is reason to believe that these were used in the commission of the offence; or finger prints or other definitive evidence suggesting involvement of the accused was found at the site of the offence. In the present case, since there is not even a whisper of an allegation that any of the articles referred to above were even recovered from the possession or at the instance of the appellant, the question of any presumption arising under section 43E does not arise;

(i) The State is at pains to argue that section 15 contemplates not only an act ‘with intent to threaten’ the foundations of a nation but also any act ‘likely to threaten’ such foundations. It is further stressed that not only is the ‘intent to strike terror’ outlawed under section 15 but also an act that is ‘likely to strike terror’. The point sought to be made is that even the likelihood that the appellant’s acts or omissions may threaten the nation are an offence within the meaning of sections 15 and 18 of the UAPA. Having given our anxious consideration to this aspect of ‘likelihood’ of threat and terror, we are of the view that the foundations of our nation stand on surer footing than to be likely to be shaken by a 80 133 2021:DHC:1882-DB protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situate in the heart of Delhi; (j) It has been a recurrent theme, repeatedly urged by the State, that what was contemplated and in fact brought to fruition was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi. We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on any specific factual allegation and we are of the view that the mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince us otherwise. In fact, upon a closer scrutiny of the submissions made on behalf of the State, we find that the submissions are based upon inferences drawn by the prosecuting agency and not upon factual allegations; (k) It is the admitted position that the protest that is alleged to have been the culmination of the so-called conspiracy, in which inter alia the appellant participated, was neither banned nor outlawed. The protest was monitored by law enforcement agencies; and it is precisely by reason of disorderliness of the protest that the appellant is also an accused in another FIR bearing No. 298/2019 dated 16.12.2019, in which however the appellant has already been enlarged on bail vidé order dated 28.05.2020 by the learned ASJ, Saket District Courts, New Delhi; 81 133

(l) In the statutory framework of the now repealed TADA and

POTA, before allowing a bail plea, the court was required to assess whether the accused person was ‘not guilty’ of the offence alleged; and therefore the burden was clearly on the defence to disprove the allegations on a prima facie basis. Correspondingly therefore, under section 43D(5) of the UAPA, where, before allowing a bail plea, the court is required to assess if the accusation against an accused is prima facie true, the burden to demonstrate the prima facie veracity of the allegation must fall upon the prosecution. The requirement of being satisfied that an accused is ‘not guilty’ under TADA or POTA meant that the court must have reasons to prima facie exclude guilt; whereas the requirement of believing an accusation to be ‘prima facie true’ would mean that the court must have reason to prima facie accept guilt of the accused persons, even if on broad probabilities;

(m) The decision of the Hon’ble Supreme Court in Watali (supra) proscribes the court from delving into the merits or demerits of the evidence at the stage of deciding a bail plea; and as a sequitur, for assessing the prima facie veracity of the accusations, the court would equally not delve into the suspicions and inferences that the prosecution may seek to draw from the evidence and other material placed with the subject charge-sheet. To bring its case within Chapter IV of the UAPA the State must therefore, without calling upon the court to draw inferences and conclusions, show that the 82 133 2021:DHC:1882-DB accusations made against the appellant prima facie disclose the commission of a ‘terrorist act’ or a ‘conspiracy’ or an ‘act preparatory’ to the commission of a terrorist act.

59. In so far as the reliance placed by the State on the decision in Ghulam Mohd. Bhat (supra) is concerned, to which decision one of us was a member, we need only say that in that case charges had already been framed against the appellant therein and two co-accused had already pleaded guilty; whereby, after appreciating the evidence adduced alongwith the charge-sheet, the Special Court had already determined that the accusations against the appellant therein were prima facie true; and the order framing charges was not under challenge before the High Court.

60. In this case, we find that the State’s attempt to show that the accusations made against the appellant are prima facie true, does not commend itself for acceptance.

61. Once we are of the opinion, as we are in the present case, that there are no reasonable grounds for believing that the accusations against the appellant are prima facie true, the Proviso to section 43D(5) would not apply; and we must therefore fall back upon the general principles of grant or denial of bail to an accused person charged with certain offences. Right to Protest

62. Since this matter emanates from a protest organised by certain persons, which the State alleges, was no ordinary protest but one that has shaken or is likely to have shaken, the entire foundations of our Republic, we 83 133 2021:DHC:1882-DB feel compelled to discuss what might be the permissible contours of a protest that would not threaten our nation.

63. In this context we examined, when, the constitutionally guaranteed right to protest, which derives from the rights under Article 19(1)(b) of the Constitution to “assemble peaceably and without arms”, crosses the line and ventures into commission of a cognizable offence under the ordinary penal law; and even more so, when, the right to protest further crosses into the territory of becoming a terrorist act or a conspiracy or an act preparatory to commission of a terrorist act under the UAPA.

64. The observations of the Hon’ble Supreme Court in Mazdoor Kisan Shakti Sangathan (supra) appear to us to be the most lucid and pithy answer as to the contours of legitimate protest and these bear repetition. In the said decision the Hon’ble Supreme Court says that legitimate dissent is a distinguishable feature of any democracy and the question is not whether the issue raised by the protestors is right or wrong or whether it is justified or unjustified, people have the right to express their views; and a particular cause, which in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. The Hon’ble Supreme Court further says that a demonstration may take various forms: it may be noisy, disorderly and even violent, in which case it would not fall within the permissible limits of Articles 19(1)(a) or 19(1)(b) and in such case the Government has the power to regulate, including prohibit, such protest or demonstration. The Government may even prohibit public meetings, demonstrations or protests on streets or highways to avoid nuisance or disturbance of traffic but the 84 133 Government cannot close all streets or open areas for public meetings thereby defeating the fundamental right that flows from Articles 19(1) (a) and 19(1)(b) of the Constitution.

65. Assuming, without however expressing any opinion thereon, that in the present case the protest in question crossed the limit of what is permissible under Articles 19(1)(a) and 19(1)(b) and went into the forbidden realm of a non-peaceful protest, first of all there is nothing to show that the Government had prohibited the protest at the relevant time, much less is there anything to show that the appellant was the perpetrator or conspirator or was involved in any illegal protest. In any case, whatever offences are alleged to have been committed by reason of the protests having turned non-peaceful are subject matter of F.I.R. No. 298/2019, in which the appellant is an accused and in which he has already been admitted to bail and will face trial in due course. There is absolutely nothing in the subject charge-sheet, by way of any specific or particularised allegation that would show the possible commission of a ‘terrorist act’ within the meaning of section 15 UAPA; or an act of ‘raising funds’ to commit a terrorist act under section 17; or an act of ‘conspiracy’ to commit or an ‘act preparatory’ to commit, a terrorist act within the meaning of section 18 UAPA. We are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to found the offences defined under section 15, 17 or 18 UAPA.

66. In our view, on an objective reading of the allegations contained in the subject charge-sheet, there is complete lack of any specific, particularised, factual allegations, that is to say allegations other than those sought to be spun by mere grandiloquence, contained in the 85 133 2021:DHC:1882-DB subject charge-sheet that would make-out the ingredients of the offences under sections 15, 17 or 18 UAPA. Foisting extremely grave and serious penal provisions engrafted in sections 15, 17 and 18 UAPA frivolously upon people, would undermine the intent and purpose of the Parliament in enacting a law that is meant to address threats to the very existence of our Nation. Wanton use of serious penal provisions would only trivialise them. Whatever other offence(s) the appellant may or may not have committed, at least on a prima facie view, the State has been unable to persuade us that the accusations against the appellant show commission of offences under sections 15, 17 or 18 UAPA.

67. On another note, the learned ASG has attempted to distinguish the decision of a 3-Judge Bench of the Hon’ble Supreme Court in K. A. Najeeb (supra), submitting that that decision came to be made in the backdrop of an extended period of incarceration of the accused person as an undertrial and there being no likelihood of the trial being completed in a reasonable time. This, the learned ASG says, is not the case in the present matter. As presently advised, though the subject charge-sheet has been filed, there are some 740 prosecution witnesses, including public witnesses, protected witnesses, police witnesses cited in it; and trial is yet to commence. Should this court then wait until the appellant has languished in prison for a long enough time to be able to see that it will be impossible to complete the deposition of 740 prosecution witnesses in any foreseeable future, especially in view of the prevailing pandemic when all proceedings in the trial are effectively stalled? Should this court wait till the appellant’s right to a speedy trial guaranteed under Article 21 of the Constitution is fully and completely 86 133 2021:DHC:1882-DB negated, before it steps in and wakes-up to such violation? We hardly think that that would be the desirable course of action. In our view the court must exercise foresight and see that trial in the subject chargesheet will not see conclusion for many-many years to come; which warrants, nay invites, the application of the principles laid down by the Hon’ble Supreme Court in K. A. Najeeb (supra).

68. Since we are of the view that no offence under sections 15, 17 or 18 UAPA is made-out against the appellant on a prima facie appreciation of the subject charge-sheet and the material collected and cited by the prosecution, the additional limitations and restrictions for grant of bail under section 43D(5) UAPA do not apply; and the court may therefore fall back upon the usual and ordinary considerations for bail under the Cr.P.C.

69. In this behalf the submission made on behalf of the State, which we must address, is that the High Court while deciding an appeal under section 21 of the NIA Act must consider the grant or denial of bail only within the parameters of section 437 Cr.P.C. and not section 439 Cr.P.C. since the High Court is seized of an appeal arising from the Special Court, which (latter) has acted under section 437 Cr.P.C., since in dealing with a case under the UAPA, the Special Court is not a Court of Sessions. Although, the learned ASG contends that this is the principle laid down by the Hon’ble Supreme Court in Kartar Singh (supra), we are unable to find any precept to that effect laid down in Kartar Singh (supra). Moreover, to say that while considering a bail plea, even if in an appeal under section 21 of the NIA Act, the High Court would be constrained by the restrictive power for bail under 87 133 2021:DHC:1882-DB section 437 Cr.P.C., in our view, does violence both to the express wording of section 437 Cr.P.C. as also to the wider powers of the High Court with regard to bail under section 439 Cr.P.C. It requires to be noticed that section 439 Cr.P.C. in so many words applies to “a Court other than the High Court or Court of Sessions”. These words in section 437 Cr.P.C. cannot be deemed to have been amended by any provision of the NIA Act or the UAPA. Moreover, it does not appeal to our sense of reason, that when dealing with a bail plea in an appeal under section 21 of the NIA Act, the High Court would be bereft of its own powers under section 439 Cr.P.C., or absent even those powers, would be unable to act ex debito justitiae in exercise of its inherent powers under section 482 Cr.P.C. In our view therefore, regardless of the fact that the present case arises as an appeal under section 21 of the NIAAct, since the additional constraints of section 43D(5) of UAPA do not apply, this court would be entitled to consider the matter of bail on the touchstone of the provisions of section 439 Cr.P.C.

70. In this behalf, we remind ourselves of the following precepts laid down by the Hon’ble Supreme Court for grant or denial of bail. General Principles of Bail

71. A quick conspectus of the general principles for considering a bail plea would not be out of place at this point. Outlining the considerations for bail, in Ash Mohammad vs. Shiv Raj Singh & Anr. the Supreme Court expressed itself as follows:

88 133

89 133 “… (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence,

(ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge.” “10. In Masroor v. State of U.P., while giving emphasis to ascribing reasons for granting of bail, however, brief it may be, a two-Judge Bench observed that: (SCC p. 290, para 15) “15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case.” “11. In Prasanta Kumar Sarkar v. Ashis Chatterjee it has been observed that (SCC p. 499, para 9) normally this Court does not interfere with an order passed by the High Court granting or rejecting the bail of the accused, however, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. “9. … among other circumstances, the factors [which are] to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

90 133

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.”

72. In a recent decision in Sanjay Chandra vs. CBI the Supreme Court has held that:

74. Furthermore in P. Chidambaram vs. Directorate of Enforcement, the Supreme Court has explained the concept and application of ‘gravity’ of an offence in the following way: “12. …. The gravity can only beget the length of sentence provided in law and by asserting that the offence is grave, the grant of bail cannot be thwarted. The respondent cannot contend as if the appellant should remain in custody till the trial is over.

“23. …. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of “grave offence” and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial.”

75. Commenting on the consequences of pre-trial detention, in Moti Ram vs. State of M.P. the Supreme Court said:

77. Upon a conspectus of the general law relating to bail and applying these well-worn principles to the present case, in our view, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made. Charge-sheet dated 16.09.2020 has already been filed in the matter. Some 740 witnesses have been cited in the subject charge-sheet. Trial is yet to commence. In view of the truncated functioning of courts by

97 133 2021:DHC:1882-DB reason of the prevailing second wave of the COVID-19 pandemic, it is unlikely that trial will commence anytime soon.

78. That apart, the appellant has already been admitted to bail in case F.I.R. No. 298/2019 dated 16.12.2019 vidé order dated 28.05.2020 made by the learned Sessions Court; and in our view there also appears to be an overlap between the so-called larger conspiracy, acts and omissions alleged against the appellant in the said other FIR and in the subject FIR from which the present appeal arises. While the presence of the appellant for purposes of trial must be secured, there is no material or basis to suspect; nor is there any reasonable apprehension that the appellant will tamper with evidence or intimidate witnesses. As very pithily put by the Hon’ble Supreme Court in P. Chidambaram (supra) the gravity of the offence alleged would beget the length of sentence, as may be awarded upon conclusion of trial; but an assertion as to the gravity of the offence cannot thwart the grant of bail. On the other hand, apart from militating against the presumption of innocence, pretrial detention would lead to needless psychological and physical deprivations; and above all, would seriously hamper the appellant from participating in and contributing to the preparation of his defence at the trial. The three cardinal concerns against grant of bail pending trial, namely of evidence tampering, witness intimidation and abscondence, can be addressed by imposition of requisite conditions on grant of bail.

79. In view of the above considerations and discussion, we are inclined to allow the appeal.

80. We accordingly set-aside impugned order dated 26.10.2020 made by the learned Special Court in the case arising from F.I.R. No. 59/2020 98 133 2021:DHC:1882-DB dated 06.03.2020 registered at P.S.: Crime Branch; and admit the appellant to regular bail until conclusion of trial, subject to the following conditions: (a) The appellant shall furnish a personal bond in the sum of Rs. 50,000/- (Rs. Fifty Thousand Only) with 02 local sureties in the like amount, to the satisfaction of the learned Trial Court; (b) The appellant shall furnish to the Investigating Officer/ S.H.O. a cellphone number on which the appellant may be contacted at any time and shall ensure that the number is kept active and switched-on at all times;

(c) The appellant shall ordinarily reside at his place of residence as per prison records and shall inform the Investigating Officer if he changes his usual place of residence;

(d) If the appellant has a passport, he shall surrender the same to the learned Trial Court and shall not travel out of the country without prior permission of the learned Trial Court; (e) The appellant shall not contact, nor visit, nor offer any inducement, threat or promise to any of the prosecution witnesses or other persons acquainted with the facts of case. The appellant shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial.

81. For clarity, this judgment supersedes the interim custody bail granted to the appellant vidé order dated 04.06.2021. 99 133

82. Nothing in this order shall be construed as an expression on the merits of the pending trial.

83. A copy of this order be sent to the concerned Jail Superintendent.

84. The appeal stands disposed of in the above terms.

85. Pending applications, if any, are also disposed of.

SIDDHARTH MRIDUL, J ANUP JAIRAM BHAMBHANI, J JUNE 15, 2021 uj/Ne/ds 100 133

ANNEXURE-A COMPARISON TABLE OF PROVISIONS NDPS TADA MCOCA, 1999 POTA UAPA Narcotic Drugs and Psychotropic Substances Act, 1985 Terrorist and Disruptive Activities (Prevention) Act, 1987 Maharashtra Control of Organised Crime Act, 1999 Prevention of Terrorism Act, 2002 Unlawful Activities (Prevention) Act, 1967

37. Offences to be cognizable and nonbailable.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),— … (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless—

(i) the Public

(ii) where the Public

Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

20. Modified application of certain provisions of the Code. — … (8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act or any rule made thereunder shall if in custody, be released on bail or on his own bond unless— (a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

21. Modified application of certain provisions of the code …

4) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless — (a) the Public Prosecutor has been given an opportunity to oppose the application of such release; and (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

49. Modified application of certain provisions of the Code. —… (6) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless the court gives the Public Prosecutor an opportunity of being heard. (7) Where the Public Prosecutor opposes the application of the accused to release on bail, no person accused of an offence punishable under this Act or any rule made thereunder shall be released on bail until the court is satisfied that there are grounds for believing that he is not guilty of committing such offence: Provided that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of subsection (6) of this section shall apply. 43-D. Modified application of certain provisions of the Code. — … (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: 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. 101 133

ANNEXURE-B RELEVANT SCREENSHOTS EXTRACTED FROM THE SUBJECT CHARGE-SHEET The names and other identifying details of persons other than the appellant have been redacted by this Court. Screenshot 1 Screenshot 2 102 133 Screenshot 3 Screenshot 4 103 133 Screenshot 5 Screenshot 6 104 133 1762-1763 Screenshot 7 105 133 Screenshot 8a 106 133 Screenshot 8b 107 133 Screenshot 8c 108 133 Screenshot 9a 109 133 Screenshot 9b 110 133 Screenshot 10 111 133 Screenshot 11 112 133 2025 - 2026 Screenshot 12 113 133 Screenshot 13 114 133 1586-1587 Screenshot 14a 115 133 Screenshot 14b 116 133 Screenshot 15 117 133 Screenshot 16 118 133 Screenshot 17 119 133 Screenshot 18 Screenshot 19a 120 133 Screenshot 19b 121 133 Screenshot 19c 122 133 Screenshot 19d 123 133 Screenshot 19e 124 133 Screenshot 20a 125 133 Screenshot 20b 126 133 Screenshot 20c 127 133 Screenshot 21 128 133 1665-1666 Screenshot 22 129 133 1681-1682 Screenshot 23 130 133 1683-1684 Screenshot 24 131 133 Screenshot 25 132 133 Screenshot 26