Allahabad High Court
Sheikh Javed Iqbal @ Ashfaq Ansari @ ... vs State Of U.P. on 3 April, 2023
Author: Renu Agarwal
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 29 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2282 of 2021 Applicant :- Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari Opposite Party :- State of U.P. Counsel for Applicant :- Ishan Baghel,Mohd. Khalid Counsel for Opposite Party :- G.A. Hon'ble Mrs. Renu Agarwal,J.
Heard learned counsel for the applicant and learned A.G.A for the State.
The applicant has moved this first bail application under Section 439 Cr.P.C in Crime No. 01 of 2015 under Section 489B, 489C of IPC and 16 UAP Act Police Station ATS U.P. District Lucknow.
It is submitted on behalf of the applicant that the applicant is innocent and has been falsely implicated in this case. The first bail application of the applicant was rejected on 24.08.2016 by Additional Sessions Judge/ Special Judge (SC/ST) Act, Lucknow. The accused is in jail since 23.2.2015. The FIR was lodged against the applicant on 23.02.2015 at 14:35 pm by informant Inspector Tej Bahadur Singh under Section 121 A, 489B, 489C IPC in Crime No. 01 of 2015. The FIR was lodged with the delay of 19 hours without giving any explanation as to the cause of delay. According to the prosecution case huge quantity of fake Indian currency of the denomination of Rs. 1,000/- and 500 (totaling the sum of 26,03,500/-) were recovered from the possession of the applicant on 22.02.2015 at about 21:10 PM from Sanoli Nepal Border. He was arrested by Constable of ATS team and brought to ATS headquarter. The recovery memo was not prepared at the spot. The applicant has been arrested in contravention of the prescribed mandatory procedure of UAP Act, 1967. Under Section 4 of the said Act only officers of the designated authroity are empowered to arrest however, in the present case constable conducted serarch and arrest. The mandatory provisions of Section 6 of National Investigating Agency Act 2000 are not complied with. The Recommendation and Sanction of Prosecution Rules, 2008 of the Unlawful Activities (Prevention) Act, 1967 provides for a prescribed time limit for making a recommendation for prosecution sanction. In the present case recommendation is not been made to the authorized agencies. The opposite parties have not complied with the process of Section 6 of NIA Act and has been delying the proceedings deliberately to illegally deprive the applicant of his right of liberty.
The investigating authority have not followed the mandatory provisions of Sub-rule 5 of Rule 6 of NIA Act. Relying upon the Apex Court judgment in Narinderjit Singh Sahni and others Vs. Union of India and others 2002 (2) SCC 210 learned counsel for the applicant submitted the aforesaid investigation was transferred to ATS Lucknow who filed the charge-sheet No. 2 of 2015 under Section 489 B, and 489 C of IPC and Section 121 A IPC was dropped from the charge-sheet. The second sanction order dated 13.01.2017 has been issued illegally and contrary to the settled principles of law. The applicant is young married family man having wife and child and he is the sole bread earner of the family with no criminal hisotry. He has been falsely implicated by the prosecution as a result of false and fabricated story. He is in jail since the last eight years and there is no likelihood of tampering with the evidence by the applicant. There is no likelihood of absconding the applicant if he is released on bail he will cooperate with the trial.
During the argument learned counsel for the applicant restrained himself only to the ground of the period of incarceration and submitted that the applicant is in jail since the past eight year and the trial of the case is stayed vide order of the Apex Court. Learned counsel for the applicant has filed a supplementary affidavit stating therein that the applicant had moved discharged application before the Special Judge which was dismissed vide order dated 27.05.2016 which was subsequently challenged by the applicant by way of application No. 7528 fo 2018 under Section 482 Cr.P.C. Hon'ble High Court while deciding the application No. 7528 of 2015 filed under Section 482 Cr.P.C found that the sanction given under the UAP Act was not as per the provision of Section 45(2) of the U.P.A Act and hence, the Hon'ble Court was pleased to drop the proceedings against the applicant relating tot he UAP Act. The order dated 08.10.2021 was challenged by ATS in Supreme Court and the Hon'ble Supreme Court stayed the proceedings against the present applicant therefore, there is no chance of conclusion of trial in the near future.
Counter affidavit is filed on behalf of the learned A.G.A and it is submitted on behalf of ATS that after the arrest of Imran Teli ATS had cogent evidence of the fact that his network is involved in counterfeit Indian currency and its members are working in the different provinces of India. The accused was arrested with counterfeit currency of more than 23 lakhs. The recovered counterfeit notes was sent to currency note press in Nasik Road, Nasik for examination and on the basis of test report charge-sheet was submitted under Section 489B and 489 C IPC and 16 UPA Act. The accused was brought to the head office of ATS and recovery memo was prepared. The sanction of prosecution was duly obtained which cannot be dismissed only on the ground of irregularity. It is also submitted by learned A.G.A and ATS that the applicant raised objection regarding the provisions of NIA Act however he himself moved an application under Section 439 Cr.P.C charge-sheet has been submitted in Court therefore, in these circumstances the bail is opposed by the learned A.G.A.
It is also submitted on behalf of the ATS that State of U.P. has filed Special Appeal Criminal No. 861 of 2018 against the judgment and order dated 08.10.2021 whereby the Hon'ble High Court was pleased to quashed the charge-sheet for the offence under Section 16 of the UPA Act. In the said SLP Hon'ble Supreme Court passed the following order:
"Issue notice returnable in four weeks. Dasti service in addition is permitted in the meanwhile there shall be stay in the operation of the impugned order"
Learned Counsel for ATS has filed a copy of order of Additional Sessions Judge Court No.3 Lucknow dated 24.02.2022 by which the sessions court had stayed the further proceeding of the case.
Perused the record.
Learned counsel for the applicant restrained himself only to the point that the accused is in jail since the last eight years and the proceedings of trial are stayed by the order dated 24.02.2022 passed by Additional Sessions Judge in light of the order passed by Hon'ble Apex Court and there is no possibility to conclude the trial in the near future.
It is also pertinent to mention here that the applicant is resident of Narayani Parsa, Belwa Nepal. When the pointed query is made on the point what is the address of the applicant in India, no satisfactory reply is forthcoming from the learned counsel for the applicant and only a statement is made that the question of residence in India arises only when the accused is released from jail. It must be emphasised, at the outset, that there is distinction between the parameteres to be applied while considering the bail application under NIA Act and NDPS Act. In Shaheen Welfare Association Vs. Union of India (1996) 2 SCC 616 Hon'ble Apex Court held that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. It would be useful to quote the following observations from the cited case (SCC page 622 Para 10) "10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case, on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21."
Referring the orders enlarging the accused on bail under UAPA, Hon'ble Apex Court in Angela Harish Sontakke Vs. State of Maharashtra reported at (2021) 3 SCC 723 held as follows:
"This Court in its earnest effort to draw balance between the seriousness of the charges with the periof of custody suffered and the likely periof within which the tiral could be expected to be completed took note of the five years' incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43-D(5) of the UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra reported at (2021) 3 SCC 725 an accused under UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined."
Hon'ble Supreme Court held that Section 43-D(5) of UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled consideration like gravity of offence, possibility of tampering with evidence, influencing of witnesses or chances of the accused evading the trial by absconsion etc. The Court is aware of the fact that charge levelled against the applicant are grave and serious threat to the society and to the extent that it may topple the economy of the country. It is true that the present applicant is languisihing in jail since the last eight years and two witnesses are recorded in the meantime. It is also important to note that the accused applicant belongs to Nepal and he has no current address in India. In case he is enlarged on bail there is least chance that the applicant will appear before the court to co-operate with the trial and there is also least chance for his being available in the court to face trial and there is strong probability of accused evade the trial by absconsion.
Therefore, in view of the above discussion it is not a fit case to enlarge the accused applicant on bail at this stage.
The bail application is accordingly, rejected.
(Renu Agarwal,J.) Order Date :- 3.4.2023 Nadeem