Bombay High Court
Nadim Akhtar Ashfaque Shaikh vs The State Of Maharashtra on 10 February, 2026
Author: A.S. Gadkari
Bench: A.S. Gadkari
2026:BHC-AS:7029-DB
P.H. Jayani 32 APEAL300.2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.300 OF 2022
Nadim Akhtar Ashfaque Shaikh
Aged : 30 years, Occ. Student,
Room No.508m 5th Floor, Bldg. No.11,
MHADA Colony, Bhakti Park, Nr. IMAX Theatre,
Wadala (E), Mumbai
(Presently in Judicial Custody lodged at
Taloja Central Prison, Mumbai) .... Appellant
(Orig. Accused No.2)
V/s.
The State of Maharashtra
(Through ATS Police Station, Mumbai) .... Respondent
(Orig. Complainant)
_______________________________
Mr. Abad Ponda, Sr. Advocate a/w. Mr. Mubin Solkar, Mr. Tahir Hussain,
Adv. Tahera Qureshi, Mr. Yakub Shaikh, Ms. Hemal Shah and
Mr. Zahid B. i/b. Mr. Anas Khalid Shaikh for the Appellant.
Mr. Vaibhav Bagade, Special PP a/w. Smt. Prajakta P. Shinde, APP for the
Respondent - State
Mr. Prashant Mohite-PI, Mr. Ambre-PSI and Mr. Lad-HC, ATS, present.
_______________________________
CORAM: A.S. GADKARI AND
SHYAM C. CHANDAK, JJ.
RESERVED ON : 28th JANUARY, 2026
PRONOUNCED ON : 10th FEBRUARY, 2026
JUDGMENT :[PER : SHYAM C. CHANDAK, J.] :-
1) This Appeal under Section 21(4) of the National Investigation Agency Act (for short 'NIA Act'), is filed by the original accused no.2, impugning Order dated 16th January, 2017 passed below Exh.407 in MCOC Special Case No.11/2012 along with 14/2012, 5/2014, 5/2015 and 1/10 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:45:01 ::: P.H. Jayani 32 APEAL300.2022.doc 15/2015 arising out of C.R.No.28/2011 (Opera House), C.R.No.29/2011 (Zaveri Bazar) and C.R.No.30/2011 (Kabutarkhana, Dadar Bomb Blast Case), Mumbai, by the learned Special Judge under MCOC and NIA Act, Mumbai, rejecting his Application for bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.).
1.1) The Officers of the ATS Mumbai have filed Affidavits-in-reply and opposed the Appeal.
2) Heard Mr. Abad Ponda, learned senior Advocate appearing for the Appellant, Mr. Vaibhav Bagade, learned Special PP and Smt. P.P. Shinde, learned APP appearing for the Respondent - State. Perused the record.
3) Mr. Ponda, learned Senior Advocate for the Appellant submitted that, the Appellant came to be arrested in the year 2012. Since then, he is behind bars and facing the said case as an under-trial. Till date, the Appellant has been incarcerated for about 14 years. There is long list of the prosecution witnesses. As such, the possibility of hearing and concluding the trial of the case in near future, is remote. He submitted that, speedy and expeditious trial is a facet of right to live as embodied under Article 21 of the Constitution of India. That, the trial Court failed to consider these aspects while rejecting the Application for bail filed by the Appellant. He submitted that the accused no.5 Kafeel Ahmed Mohd. Ayub has been released on bail by this Court vide its Judgment dated 4th November, 2025 in Criminal Appeal No.612/2022. He therefore prayed 2/10 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:45:01 ::: P.H. Jayani 32 APEAL300.2022.doc that, the impugned Order may be set aside and the Appellant may be released on bail. To support these submissions, Mr. Ponda has cited following cases :-
1. Kafeel Ahmed Mohd. Ayub v/s. State of Maharashtra reported in 2025 SCC OnLine Bom 4150
2. Gulfisha Fatima v/s. State (Govt. of NCT of Delhi) reported in 2026 SCC OnLine SC 10
3. Arvind Dham v/s. Directorate of Enforcement reported in 2026 SCC OnLine SC 30
4. Javed Gulam Nabi Shaikh v/s. State of Maharashtra and anr.
reported in (2024) 9 SCC 813
5. Jalaluddin Khan v/s. Union of India reported in (2024) 10 SCC 574
6. Manish Sisodia v/s. Directorate of Enforcement reported in 2024 SCC OnLine 1920
7. Vernon v/s. State of Maharashtra and anr. reported in 2023 SCC OnLine SC 885
8. Yedala Subba Rao and anr. v/s. Union of India reported in 2023 6 SCC 65
9. Satender Kumar Antil v/s. CBI and anr. reported in (2022)10 SCC 51 10 Dhan Singh s/o. Shiv Singh v/s. Union of India and Ors. reported in 2019 SCC Online BOM 5721 11 Munib Iqbal Memon v/s. The State of Maharashtra reported in 2024 SCC OnLine Bom 3017 12 Mirza Himayat Beig v/s. The State of Maharashtra reported in 2024 SCC OnLine Bom 42 13 Afroz Khan Shahid Khan Pathan v/s. State of Maharashtra reported in 2023 SCC OnLine Bom 1240
4) In reply, Mr Bagade, learned Special PP vehemently submitted that, there is ample evidence against the Appellant showing his involvement in the crime right from the beginning till carrying out the bomb explosions as conspired. Present crime is committed against the nation. As such, it is a 3/10 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:45:01 ::: P.H. Jayani 32 APEAL300.2022.doc serious offence. The case against the Appellant is substantially different than the case against the accused no.5, whose Appeal was considered by this Court. This is not a casual prosecution, nor one involving a narrow factual canvas. The delay in hearing and disposal of the case is on account of the complexity of the case, the number of accused and the nature of various issues involved. In this background, Article 21 of the Constitution of India is of no help to the Appellant. Therefore, release of the Appellant merely on the ground of long incarceration will not be proper. To support these submissions, the learned Special PP has produced the affidavits filed by the NIA/prosecution in Criminal Appeal No.612/2022 and copy of the Order dated 11th October, 2024 passed in said Appeal.
5) Both the learned counsel have mainly relied upon the decision in case of Gulfisha Fatima (supra). Therein, the Hon'ble Supreme Court has observed that Article 21 has never been understood as operating in isolation from law. The constitutional promise is not that liberty will be unregulated, but that deprivations of liberty will not be arbitrary, unconscionable, or unfair. The expression "procedure established by law"
reflects that balance. The UAPA, as a special statute enacted to address offences alleged to affect the security of the State and the stability of civic life, represents a legislative judgment as to conditions under which bail may be granted at pre-trial stage. Section 43D(5) of UAPA embodies the exercise of that judgment. The Constitutional inquiry into delay is not an inquiry 4/10 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:45:01 ::: P.H. Jayani 32 APEAL300.2022.doc into guilt. It is an inquiry into whether continued detention remains constitutionally permissible in the circumstances of the case. The proper constitutional question, therefore, is not whether Article 21 is superior to Section 43D(5). The proper question is how Article 21 is to be applied where Parliament has expressly conditioned the grant of bail in relation to offences alleged to implicate national security. The law does not contemplate an either-or approach. Nor does it contemplate an unstructured blending of statutory and constitutional considerations. What is required is disciplined judicial scrutiny that gives due regard to both.
It is further held that, prolonged custody, though a matter of concern, does not operate as automatic ground for grant of bail where statutory threshold continues to be attracted. Plea of delay in facts of particular case,therefore, does not warrant enlargement of bail, though it justifies continued judicial emphasis on timely conduct of the proceedings. Consideration must also be given to integrity of trial process and risks associated with release. Depending on nature of the case, these may include the possibility of influencing witnesses, tampering with evidence, or undermining the fairness of proceedings. This is not to presume guilt, but to recognise that bail decisions are necessarily forward-looking in terms of ensuring an effective trial. The Court must also bear in mind that it is not confined to a binary choice between continued custody and unconditional release. Where delay becomes a matter of constitutional concern, 5/10 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:45:01 ::: P.H. Jayani 32 APEAL300.2022.doc appropriate directions for expeditious trial, prioritisation of witnesses, or periodic review of progress may be issued. The liberty to renew prayer for bail upon continued stagnation may also be preserved. In prosecutions alleging threats to public order and national security, the Court cannot be unmindful that both dimensions are engaged. The constitutional order is not served by an approach that treats liberty as the sole value and societal security as peripheral. Discipline imposed by Section 43D(5) necessarily circumscribes nature of judicial scrutiny permissible at bail stage. The Court is not called upon to weigh the probative value of evidence, to assess its admissibility, or to determine whether the prosecution version will ultimately withstand trial. Any exercise approximating a mini-trial at this stage would transgress the statutory boundary deliberately drawn by Parliament. Once the prosecution itself projects varying degrees of proximity, control, and participation, the law mandates an individualised assessment of culpability, particularly in the context of stringent penal provisions.
6) In paragraph 28, the Hon'ble Supreme Court has observed that, "At the threshold, it is necessary to clarify the legal contours within which the plea of delay operates in prosecutions under the UAPA. Delay engages Article 21 at two distinct constitutional planes. First, delay may be of such magnitude and character that continued detention becomes per se unconstitutional, irrespective of the strength of the prosecution 6/10 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:45:01 ::: P.H. Jayani 32 APEAL300.2022.doc case. Second, delay may be pressed as a circumstance to contend that the statutory satisfaction under Section 43D(5) stands diluted or displaced. ..."
7) Perusal of record indicates that, the Appellant was arrested on 12th January, 2012. The charge was framed in the year 2019. After framing the charge in 2019, nearly 2 years' time was taken to file an Application under Section 294 of Cr.P.C. The charge against the co-accused i.e. Kafeel Ahmed Mohd. Ayub was framed on 5 th March, 2021. The Order dated 4th November, 2025 in Criminal Appeal No.612/2022 noted that, about 700 witnesses have been cited by the prosecution in the list of witnesses. The Bail Application (Exh.407) of the Appellant was rejected by the impugned Order on 16th January 2017. This Appeal is filed in the year 2022. As informed by the learned Special PP, so far 189 witnesses have been examined and 200 more witnesses are yet to be examined. Thus, nearly five years' period is taken by the prosecution to examine said 189 witnesses. By an Order dated 30th October, 2023 in Criminal Appeal No.612/2022, this Court had directed the learned Judge of the trial Court to dispose off the present case as expeditiously as possible and in any event within a period of one year from the date of receipt of the said Order. It was also kept open for the learned Judge to take up the case on day to day basis, if possible. Therefore, it was observed by this Court that "From the pace of the prosecution, it appears that, similar period may be consumed to examine 7/10 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:45:01 ::: P.H. Jayani 32 APEAL300.2022.doc the remaining witnesses." As such, we are of the view that, in the present case, the delay alleged is of such a nature as to constitutionally eclipse the statutory embargo.
8) A three Judge Bench of the Hon'ble Supreme Court in the case of Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713, in paragraph Nos.17 and 18 has held as under :-
" 17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statue as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.
18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected. "
9) After applying the ratio enunciated by the Hon'ble Supreme 8/10 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:45:01 ::: P.H. Jayani 32 APEAL300.2022.doc Court in case of K.A. Najeeb (supra) and Gulfisha Fatima (Supra) and in light of the facts mentioned above, we are of the view that the Appellant is entitled to be released on bail during the pendency of his trial. 9.1) Hence, the following Order :-
(i) The impugned Order dated 16th January, 2017 passed below Exh.407 in MCOC Special Case No.11/2012 along with 14/2012, 5/2014, 5/2015 and 15/2015, is quashed and set-aside.
(ii) The Appellant be enlarged on bail, on his executing PR bond in the sum of Rs.1,00,000/- with one or more solvent local sureties in the like amount, to the satisfaction of the learned Special court.
(iii) After his release from jail, the Appellant shall report to the office of the ATS, Mumbai (Respondent), on the first Saturday of every month between 10:00 a.m. to 12:00 noon, till the conclusion of the trial.
(iv) 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.
(v) The Appellant shall not leave the jurisdiction of the trial court without the prior permission of the trial court, till the conclusion of the trial.
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P.H. Jayani 32 APEAL300.2022.doc
(vi) The Appellant shall surrender his passport, if any,
before the trial court, before his actual release from jail.
(vii) The Appellant shall inform his latest place of residence and mobile 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 Agency i.e. the Respondent herein.
(viii) The Appellant to co-operate in concluding the trial of present case and attend the trial court on all dates, unless specifically exempted.
(ix) The Appellant shall file an undertaking with regard to clauses (iii) to (viii) before the trial court, within two weeks of his release.
(x) If there is breach of any of the aforesaid conditions, the prosecution will be at liberty to seek cancellation of Appellant's bail.
10) Appeal is allowed in the aforesaid terms.
11) It is made clear that, the observations made herein are prima
facie in nature and for deciding the present Appeal only. The learned Special Judge shall decide the main case on its own merits, in accordance with law, uninfluenced by the observations made in this judgment. PREETI HEERO JAYANI (SHYAM C. CHANDAK, J.) (A.S. GADKARI, J.) Digitally signed by PREETI HEERO JAYANI Date: 2026.02.11 13:57:06 +0530 10/10 ::: Uploaded on - 11/02/2026 ::: Downloaded on - 11/02/2026 20:45:01 :::