Punjab-Haryana High Court
Manpreet Singh @ Mann vs National Investigation Agency on 7 December, 2022
Author: G.S. Sandhawalia
Bench: G.S. Sandhawalia
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-440-2022 (O&M)
Reserved on : 23.11.2022
Pronounced on : 07.12.2022
Manpreet Singh @ Mann ....Aappellant
Versus
National Investigation Agency .... Respondent
CORAM : HON'BLE MR.JUSTICE G.S. SANDHAWALIA
HON'BLE MS.JUSTICE HARPREET KAUR JEEWAN
Present: Mr.Bhanu Pratap Singh, Advocate, for the appellant.
Mr.Sukhdeep Singh Sandhu, Advocate, for NIA.
Mr.Rohit Ahuja, DAG, Punjab.
*****
G.S. Sandhawalia, J.
The present appeal, filed under Section 21 of the National Investigation Agency Act, 2008 (for short, the '2008 Act'), is directed against the order dated 21.04.2022 wherein the bail application of the appellant was dismissed by the Special Judge, NIA Court, SAS Nagar Mohali, Punjab in RC No.20/2019/NIA/DLI dated 23.09.2019 arising out of FIR No.280 dated 05.09.2019. The said FIR had been lodged under Sections 304, 153-A and 120-B IPC and Sections 13, 18, 18A, 18B, 20, 23 of the Unlawful Activities (Prevention) Act, 1967 (for short, the 'UAPA Act') and Sections 3, 4 & 5 of Explosive Substance Act, 1908, lodged at Police Station Sadar, Tarn Taran.
The applicant- Manpreet Singh @ Mann who has been arrayed as A-7 was as per the learned Special Judge though not named in 1 of 16 ::: Downloaded on - 09-12-2022 04:20:11 ::: CRA-D-440-2022 (O&M) 2 the FIR but due to his associated role which was found during the course of investigation and on the basis of which he had been subsequently arrested at a later stage of the investigation in the case on 15.09.2019 by the Punjab Police held not entitled for the concession of bail. The learned Special Judge had found that the case of the prosecution was that he had tested a bomb made by other accused, Harjit Singh @ Harjit (A-2), Gurjant Singh (A-3) and Bikramjit Singh (A-9) near Bhullar Canal. The Special Judge had accepted the argument that he was associated with Gurjant Singh (A-3), Bikkar Singh @ Vikram (D-1), Harpreet Singh @ Happy (D-2) and Bikramjit Singh @ Bikkar @ Bikkar Panjwar (A-9) and that he had posted/shared pictures, videos, messages related to Khalistan through his social media accounts. They had met at Pizza Plus, Tarn Taran and planned an attack at Dera Muradpura and thus, keeping in view the fact that he had been chargesheeted on 03.12.2020, it was held that there was nothing on record to believe that the accusation against the appellant was not prima facie true. Resultantly, keeping in view the bar imposed under Section 43-D(5) of the UAPA Act, the concession of bail was not granted without keeping into mind the fact that he had been in custody since 15.09.2019 and the trial was progressing at a snails' pace.
Mr.Bhanu Pratap Singh, counsel for the appellant submits that no recovery has been effected of any incriminating material from the appellant and that co-accused, Amarjeet Singh @ Amar Singh was granted the benefit in CRA-D-226-2021. It is accordingly submitted that his role has been mentioned in the charge-sheet that he was allegedly testing the bombs along with another accused but the same is on the basis of disclosure statement obtained when the appellant was in custody which would not be admissible in evidence. It is accordingly submitted that he 2 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 3 was arrested on 15.09.2019 by the Punjab Police along with another co- accused and merely on account of the disclosure statement on 20.10.2019 and 21.10.2019 wherein he had admitted that he was associated with the persons who were injured in the explosion on 04.09.2019 in which also two persons had died, he was thereafter kept in custody.
It is thus the case of counsel for the appellant that there was nothing on record to show that the appellant was a member of any terrorist gang or any terrorist association and was involved in any unlawful activity and was entitled for the concession of bail. The Trial was likely to take substantial time and he had spent more than 3 years and 2 months in custody and out of the 117 witnesses, only 14 had been examined. It is further submitted that there is a charge of having thrown a bomb on the vehicle of Professor Darshan Singh on 07.03.2016 and for promoting disharmony, enmity, hatred and ill-will between various religious groups, caste and communities and the charge under Section 153A IPC had been framed. It is pointed out that on the said date, the appellant was not even in India and was at Bahrain from 30.11.2015 to 18.08.2016 while referring to the entries in the Passport and the specific pleadings raised in his appeal in para No.6 which were stated to have not been repelled in any manner therefore, the provisions of Section 43-D(5) of the UAPA Act would not stand in his way.
Mr.Sandhu has opposed the bail application and submitted that the offences are serious and the appellant has been accused of making bombs and testing them and also that the charge has been framed on 03.12.2020 under Section 153A IPC and the incident regarding throwing of the bomb on Professor Darshan Singh. Similarly, it is submitted that there was a conspiracy to attack Muradpura Dera of Divya Jyoti Jagran 3 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 4 Sansthan in Tarn Taran District, Punjab (founded by Aushutosh Maharaj) by throwing bombs in the night hours of 04.09.2019. However on account of the bombs having got exploded on being retrieved, they were unsuccessful in carrying out the attack and therefore, an offence under Section 18 of the UAPA Act had also been committed and charge had accordingly been framed. Similarly, there was a charge under Section 23 of the UAPA Act that appellant along with others formed a pro-Khalistan terrorist gang which was taking part in commission of unlawful activities of supporting the Khalistan movement. Similarly it was pointed out from the written statement filed that FIR No.3 dated 03.01.2019 under Sections 323, 324, 341, 506, 148, 149, 120B IPC had also been lodged at Police Station City, Tarn Taran wherein there were allegations that bombs had been thrown and gun shots had been fired at the house of Bhagwan Singh @ Bhana, Sarpanch.
Admittedly, the FIR was lodged on 05.09.2019 on account of information received by Harsha Singh, SI/SHO at Police Station Sadar, Tarn Taran that on the night of 04/05.09.2019 at around 8 PM that a bomb blast had occurred in a vacant land on the link road leading from Tarn Taran to Patti near Pandori Gola towards Bath side. In the blast which had taken place in a vacant plot in which lot of reeds had grown and trash had been thrown one person had been seriously injured namely Gurjant Singh and 2 persons had died. The persons who had died were Bikramjit Singh @ Vicky son of Bikkar Singh son of Sukhwinder Singh and Harpreet Singh @ Happy son of Kuldeep Singh. Resultantly, FIR under Section 304 IPC read with Sections 4 & 5 of the Explosives Act, 1908 was lodged. The FIR thereafter was lodged by the NIA on 23.09.2019 on the information being received by the Central Government on account of the 4 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 5 gravity of the offence and the national and international linkages which were required to be looked into by the NIA.
It is a matter of record that the appellant had already been rounded up by the Punjab Police by the same complainant, SI Harsha Singh again on the secret information received that the youths were in the vicinity of the canal namely Harjit Singh, Manpreet Singh, Amritpal Singh, who were apprehended along with Chandeep Singh, Malkit Singh and Amarjeet Singh. The disclosure statement of the appellant taken on 20.10.2019 reads as under:
"DISCLOSURE STATEMENT OF ACCUSED MANPREET SINGH @ MANN Today, on 20.10.2019 at 0950 hrs at NIA Camp office, CIA Khara Mohali the accused Manpreet Singh @Mann, Mukhtar Singh r/o Village Muradpura Tarn Taran, who is under Police Custody, during his examination he has voluntarily disclosed the following in the presence of NIA officers as well as independent witnesses namely Sh. Manish Kumar Bansal S/o Lt. Sh. Raj Kumar R/o 1376/1, phase 11, Mohali, Punjab, Posted at DC office, CIA branch, Mohali, Punjab and Gurnam Singh S/o Lt. Sh. Nirmal Singh R/o Vill- Kurda (SAS Nagar), Mohali, Punjab Posted at DC Office, LBA branch Mohalithat:
"I have been associated with Gurjant Singh, son of Resham Singh, resident of Village Bachhre, Tam Taran who injured in explosion on 04.09.2019 a Pandori Gola, Vikram @ Vicky @Bikkar Singh son of Sawinder Singh, resident of Village Kad Gill, Tarn Taran, Pujab and Harpreet Singh @ Happy, son of Kuldeep Singh, resident of Village Bachhre, Tarn Taran, Punjab both died due to explosion on 04.09.2019 at Pandori Gola and other associates Le Bikkar Singh @ Bikkar Baba, who are in abroad".
5 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 6 I have 01 below mentioned Facebook id, which was used to send/receive and share messages with my Facebook friends. I used to receive photographs, videos, messages related to khalistan. I also like, share and make comment on the shared articles. My Social media accounts are as under-
Facebook- manpreetsinghkhalsa.
Email [email protected] Instafram id- https://www.instagram.com/nihang singhh But I have forgotten my password of above said accounts if one SIM card of mobile number 7087989343 with phone may be provided to me I can get recovered the aforesaid communication/chats made with the associates from my above said social media accounts, if given access to any computer with internet connection.
This memo was read over to all concerned in the language best understood (English, Hindi & Punjabi) and admitted to be correctly recorded, by the accused under custody. The Proceeding concluded at 20.10.2019 at 1020 hrs. All present including accused in custody, signed this memo after fully understanding its contents."
The said statement was followed up by another statement on 21.10.2019 which reads as under:
"In continuation of the disclosure made on dated 20.10.2019 by the accused Manpreet Singh @ Maan at 0950 hrs at NIA Camp office, CIA Kharar, Mohali. Today on dated 21.10.19, for the investigational purpose a new SIM card of mobile number disclosed by the accused was procured from service provider Airtel and a new mobile phone was purchased for getting OTP and installation of social media application as disclosed by the accused.
Accused Chandeep Singh who is under Police Custody, with the orders of Hon'ble NIA Special Court Mohali, Chandigarh, was given access of computer system HP Laptop (service tag:
CND731292#) at 1710 hrs, in order to get the details in respect of the social media IDs. Ms. Monica, Assistant Programmer, IT 6 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 7 Division, NIA, New Delhi was also made available in order to assist the proceedings. Ms. Monica, Assistant Programmer checked the computer and found that the system is working properly without any malfunctioning installed with Antivirus with DVD writer.
Then accordingly the proceedings started at 1710 hrs. The above said SIM card was inserted in the newly purchased mobile (Model-L5502, IMEI No. 9116551004101). The SIM card was activated. On getting access to the laptop with internet connection following steps were taken in presence of the two independent witnesses:
(1) The accused tried to log in his Facebook account by entering his but account could not open due to wrong mobile number. Thereafter all the time line data from this email account of Manpreet was downloaded by signing in Chandeep Facebook account in presence of and as Manpreet is Facebook friend of Chandeep and is also co-
accused in the crime.
(2) The Instagram accounts linked to Facebook of Manpreet was searched and found. The Instagram was created using [email protected] which was not accessed. (3) Instagram account was accessed through facebook and linking email ID was changed to get the data access to the Instagram account of Mail ID of Vinay Kumar, IO was used for password. Using Mr. Vinay Kumar ID Instagram password was reset and data downloaded.
New DVD-R Sony was provided to Ms Monica, Assistant Programmer and asked him to write the data (including screenshots and the downloaded data) in this DVD. Accordingly, he checked the DVD in presence of the accused and the independent witnesses and found it blank and having no malware in it. Thereafter, he transferred the data in DVD, and the DVD was marked as "MN-1" and signed by all the signatories of this memorandum and sealed with NIA seal. Mobilephone and SIM card were also sealed after completion of proceeding. The impression of specimen seal were made on a separate sheet also 7 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 8 attached with this memorandum. Another copy of DVD was made for investigation purpose."
The allegations contained in the chargesheet as per the challan submitted after completion of investigation under Section 172 Cr.P.C. qua the appellant reads as under:
"17.18: Planning and execution for terror activities by the member of this gang: Investigation has revealed that in 2015 after Guru Granth Sahib Sacrilege incidents reported in Punjab, protest started across the state. Accused persons of instant case also participated in various protests under the leadership of Bikramjit Singh Panjwar (A-9) to create instability and disturbance in law and order situation in Punjab especially in Amritsar and Tarn Taran. Accordingly this group also executed various terror activities in furtherance to support Khalistan movement by creating terror in Punjab. The terrorist gang attacked Prof. Darshan Singh with bombs on 07.03.2016, when he was on his way to Ludhiana after delivering his address at Tarn Taran. The preacher escaped unhurt with major damage to his Innova vehicle that was repaired at various workshops at Ludhiana. The gang members were opposed to his views on Dasam Granth. Accordingly Harjit Singh (A-2), Chandeep Singh @ Gabbar Singh (A-4), Malkit Singh @ Sher Singh @ Shera (A-5), Amritpal @ Amrit Singh (A-
6), Manpreet Singh @ Maan, (A-7), Vicky (D-1) and Bikkar Panjwar (A-9) attended seminar organized by Akal Upma Jatha at Tarn Taran with an intention to create disturbance and protest and attacked his convoy after he left the venue.
Xxxx Investigation has revealed that accused Massa Singh @ Mandeep Singh (A-1), Harjit Singh @ Harjit (A-2), Gurjant Singh (A-3), Chandeep Singh @ Gabbar Singh (A-4), Malkit Singh @ Sher Singh @ Shera (A-5), Amritpal Amrit Singh (A-6). Manpreet Singh @ Maan, (A-7), Amarjeet Singh @Amar Singh(A-8) & Vikram @ Vicky (D-1), planned to attack on Muradpura Dera of DJJS. Further explosives were arranged to execute their plan and accordingly 4-5 crude bombs were prepared by Harjit Singh @ Harjit (A-2), Gurjant Singh (A-3) and Bikkar Singh @ Vikram @ 8 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 9 Vicky @ (D-1) and same was concealed by burying in the empty field near the house of Harjit (A-2) at village Pandori Gola, PS- Sadar, Distt- Tarn Taran. They also made a reconnaissance of the target area i.e. Muradpura Camp. On 04.09.2019 when they were digging a pit to retrieve the concealed explosives for execution of their plan, accidently bombs exploded during retrieving and as a result of explosion accused Bikkar Singh @Vicky (D-1) and Harpreet Singh @Happy (D-2) died on the spot and accused Guriant Singh (A-3) got seriously injured.
Xxxx 17.25. Role and activities of offences established against A-7:
During investigation it emerged that 4-7 was associated with A-2 since 2013 when they used to attend Gatka_classes together. Subsequently, he came into contact with other gang members during 2016-17. Soon he became a hardliner Sikh and started attending various religious events, meetings to further the conspiracy, social media campaigns, communication amongst gang members to achieve the goals set out by them. He was involved in hatching criminal conspiracy with other co-accused persons for targeting Hindu leaders. A-7 was also involved with co-accused in reconnaissance of different target places to carry out terrorist attack in Punjab. A-7 also tested bomb made by A-2, A-3 and A-9 near Bhullar canal. A-7 along with A-1, A-3, A-5 and D-1 conducted meetings whereat the conspiracy to target Muradpura Dera (DJJS, Tarn Taran) by throwing bomb was hatched. He used to spread Khalistan ideology through social media.
ii) Therefore as per averments made in the earlier paragraphs, it is established that A-7 was an active member of pro-Khalistan terrorist gan which supported Khalistan movement. A-7 was closely associated with other members of above terrorist gang with an intention to further its activities and was in conspiracy with co-
accused persons in planning to carry out terrorist attack by causing explosion. In order to commit attack, A-7 along with co- accused was nursing intent to spread disharmony to de-stabilize the Security, Integrity, Unity and Sovereignty of India. A-7 in association with co-accused persons advocated/ abetted/ advised/ incited the commission of terrorist offences. In the preparatory stage as part of conspiracy hatched by the gang to target 9 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 10 Muradpura Camp when D-1, D-2 & A-3 were trying to dig out the explosive from one isolated plot, accidental explosion occurred thereby causing death of D-1 & D-2 and A-3 got injured on the spot. A-7 has committed offences under sections 120B r/w 153A of IPC, and sections 13, 18, and 20 of the UA (P) Act, 1967." The above disclosure statements would only go on to show that apart from the bald allegations that the appellant was associated with the co-accused and he had some Facebook ID on which he used to send photographs, video related to Khalistan, he has been implicated would also go on to show that even an attempt was made to seize the same from his co-accused, Chandeep Singh and his Instagram accounts were searched and downloaded in a DVD. Thereafter, as per the final report also, the allegations are of throwing a bomb on 07.03.2016 at Professor Darshan Singh for which he has also been charge-sheeted. Apparently, the appellant was not in India and was in Kingdom of Bahrain on the said date as per his Passport entries which would go on to show that he had left India on 30.11.2015 and only came back on 18.08.2016. Though a charge has been framed against him for this offence under Section 153A IPC.
The appellant has thus been able to create an alibi in the form of unimpeachable evidence in the form of personal document and specific averment has been made in the appeal to which there is no credible response. It is also pertinent to notice that on 11.10.2022, directions were issued that copy of the FIR regarding the incident of 07.03.2016 be placed on record and thereafter, it was noticed that no FIR was lodged regarding the said incident at all. The affidavit had also been filed by the Investigating Officer, Inspector Ram Gopal Sharma that the appellant had pointed out the place where the bombs had been thrown at the house of 10 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 11 Sarpanch and similarly reference has been made to A-2 that certain persons had identified the photographs as to which persons had thrown the bomb at the vehicle of Professor Darshan Singh and the photographs of Manpreet Singh had been pointed out from the 31 photographs placed in front of the said person. Apparently, no FIR was lodged at the time the incident had happened. Another disclosure statement recorded by the Punjab Police has also been reproduced in the affidavit of the Investigating Officer now which reads as under:
"1. In the 2018, in the election of Sarpanch, Harjit Singh, Gurjant Singh and myself were together. Gurjant Singh received a phone call from his village that the caller told him that the opposition party members were shouting and abusing them. At that time, we were in Pandori Gola in Harjit Singh's house and then we went to the village Bacchre at Gurjant Singh's house. Then Gurjant Singh taken out two bombs, Darați (Sickle) etc. from his house and handed over a Bomb to me and other was handed over to Binda who was cousin of Gurjant Singh. I, Harjit Singh, Gurjant Singh, Amritpal Singh alias Amrit, Lakhwinder Singh alias Lakha (Cousin of Gurjant Singh) was present at village. One bomb was thrown by me and second bomb was thrown by Binda at Tank but no one died in this. We all fled away after throwing bomb.
2. After one month of this incident, I went to the house of Gurjant Singh where Amritpal Singh alias Amrit was sleeping in another room and Gurjant Singh and Vicky were in another room. I entered the room and saw that Gurjant Singh and Vicky were inserting the Masala of Bomb of gray color by putting that on a newspaper and inserting that in small boxes. When I asked then they told that they are making bombs. After 2-3 days, I again went to the house of Gurjant Singh where Vicky and Amritpal Singh alias Amrit took me there and told that we have to go. Somewhere on the way, Vicky shown me a box (Containing Bomb) and said that we will try to blast this. Vicky had tried the bomb blast near the canal of Bhullar on soft ground, and it was succeeded. Then we hastily left the place and returned to our house."
11 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 12 Nothing has come on record as to whether the material from which the bomb had been assembled and having sourced had been investigated into. Neither the copy of FIR No.3 regarding the opening fire and throwing bomb at the house of Sarpanch Bhagwan Singh had been placed on record as directed and apparently, the appellant was never prosecuted in the said FIR. The appellant has been charged under Sections 120B IPC, 153A IPC and Sections 13 & 18 of the UAPA Act. Section 2(k)(l) and (m), Sections 13, 18, 20 and 43-D(5) of 1967 Act, read as under:-
"Section 2 (k) "terrorist act" has the meaning assigned to it in section 15, and the expressions "terrorism" and "terrorist" shall be construed accordingly;(l) "terrorist gang" means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act; (m) "terrorist organisation" means an organisation listed in the or an organisation operating under the same name as an organisation so listed;
"13. Punishment for unlawful activities-
(1) Whoever--
(a) takes part in or commits, or
(b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful activity of any association, declared unlawful under section 3, after the notification by which it has been so declared has become effective under sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both.
(3) Nothing in this section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other
12 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 13 country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
18. Punishment for conspiracy, etc.--Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine.
20. Punishment for being member of terrorist gang or organisation.--Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine. Xxxxxx "Section 43-D (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."
In 'Union of India Vs. K.A. Najeeb' (2021) 3 SCC 713, it was held that the statutory restriction under Section 43-D (5) of the 1967 Act in comparison of Section 37 of the NDPS Act is less stringent.
Keeping in view the right under Article 21 of the Constitution of India, the prayer for cancellation of bail granted, was not interfered with. Relevant portion of the said judgment reads as under:-
"17. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part 13 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 14 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 43D (5) of 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.
19. Yet another reason which persuades us to enlarge the Respondent on bail is that Section 43D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS. Unlike the NDPS 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 the UAPA. Instead, Section 43D (5) of UAPA merely provides another possible ground for the competent Court to refuse bail, in addition to the wellsettled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion etc."
14 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 15 Resultantly, keeping in view the observations made in National Investigation Agency Vs. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1, wherein it was held that the degree of satisfaction is lighter under the UAPA Act. Apparently the material which has been collected against the appellant who belongs to Muradpura, Tarn Taran District would only go on to show that there were some links with other persons who had objectionable material on the social media due to which he had also been roped in. The unlawful activity with a terrorist association or an listed organization would invite the conviction under Section 13 and the conspiracy as such under Section 18 would invite the minimum conviction of 5 years going up to life which prima facie at least could not be linked up with the others in any form of credible evidence allegedly connected in the investigation. Same is the position regarding the charge under Section 20 for having formed a terrorist gang and having committed any offence for the objective of establishing an independent Khalistani State by violent means. The prima facie case is thus not made out which exercise was not conducted by the Special Judge in the proper perspective and the material which has apparently been collected by the NIA is not of that nature that it could deny the appellant the benefit of regular bail especially keeping in view the fact that he has been in custody for the last 3 years and 2 months. A shadow has also been thrown on his role regarding his presence in the incidence of March, 2014 when he was not in India and therefore, keeping in view these cumulative factors into mind and also the fact that his custody certificate which was filed by the State of Punjab would go on to show that he was not involved in any other criminal case.
Therefore, keeping in view the fact that he has clean antecedents and does not have any such background that he was involved 15 of 16 ::: Downloaded on - 09-12-2022 04:20:12 ::: CRA-D-440-2022 (O&M) 16 in any criminal activity and the fact that the trial is likely to take considerable time since over 117 witnesses have been arrayed out of which only 14 have been examined till now, we are of the considered opinion that the appellant is entitled for the benefit of regular bail during the pendency of the trial. He be produced before the Special Court within a week from today to enable him to seek bail by furnishing bail bonds/surety bonds. The Special Court shall also put a condition that the appellant shall report to the local police station after every 15 days on 1st and 15th of the month at 10:00 AM before the concerned SHO, to ensure that his whereabouts are always ascertainable.
The present appeal stands allowed in the above-said terms. Needless to say that any observations made herein are only for the purposes of granting the regular bail and it is not an observation on the merits of the case which is to be decided on the basis of the evidence to be led.
(G.S. SANDHAWALIA)
JUDGE
07.12.2022 (HARPREET KAUR JEEWAN)
Sailesh JUDGE
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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