The Supreme Court recently granted bail to an undertrial in an Unlawful Activities (Prevention) Act (UAPA) case observing he has been in custody for almost eight years and the prosecution has examined only six of the 109 witnesses.
A Division Bench of Justice K.M. Joseph and Justice Hrishikesh Roy heard the criminal appeal filed by one Jahir Hak (appellant).
The appellant was arrested on 08.05.2014 in connection with FIR of Police Station Pratapnagar, Jodhpur for offences punishable under Sections 10, 13, 15, 16, 17, 18, 18A, 18B, 19, 20, 23 and 38 of the Unlawful Activities (Prevention) Act, 1967.
A chargesheet was filed against the appellant on 17.09.2014 and charges were framed on 29.01.2018. The appellant has been in custody for a period of almost 8 years. Examination of only 6 witnesses have been completed. The seventh witness is being examined.
The Court issued notice in this matter on 29.09.2021. Thereafter the matter came up on 26.11.2021 wherein the complaint of the appellant that out of 180 witnesses cited by the prosecution, evidence of not even a single witness was complete.
On April 11, the depositions of witnesses mentioned in the order dated 04.02.2022 were placed before the Court.
The counsel for the appellant would point out that one witness has been declared hostile. As far as the other two witnesses examined on behalf of the prosecution are concerned, it is pointed out by the counsel for the appellant that there is nothing in the deposition of the said witnesses which implicates the appellant. The counsel for the State does point out that in the nature of the case set up against the appellant, there would be further evidence which may unfold.
The Court observed that the basis of the case against the appellant appears to be largely the fact that he was found to be in touch with one of the accused and which is sought to be made good by conversations which the appellant is alleged to have engaged in with that accused on 31 occasions, who is a co-villager. According to the respondent, the said accused is the head of a sleeper cell module of Indian Mujahideen.
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“No doubt, in the said case, as pointed out by the learned counsel appearing on behalf of the State, the Court was dealing with an order passed by the High Court granting bail, whereas, in this case, the converse is true, that is, the impugned order is one rejecting the application for bail. The fact remains that the appellant has been in custody as an undertrial prisoner for a period of nearly 8 years already.”
The Court noted that the appellant is charged with offences, some of which are punishable with a minimum punishment of 10 years and the sentence may extend to imprisonment for life. Counsel for the appellant also points out that one of the co-accused namely Aadil Ansari has been released on bail on 30.09.2020 by the Court. No doubt, in this regard, we keep in mind the submission of the State that the role attributed to the said accused is different.
“The condition in Section 43D(5) of the Act of 1967 has been understood to be less stringent than the provisions contained in Narcotic Drugs and Psychotropic Substances Act, 1985, as already noticed by us.”
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The Court held that in the nature of the case against the appellant, the evidence which has already unfolded and above all, the long period of incarceration that the appellant has already undergone, time has arrived when the appellant will be enlarged on bail.
The Bench bore in mind the fact that the prosecution seeks to examine as many as 109 witnesses of which only 6 witnesses have been fully examined so far. Accordingly, we allow the appeal, set aside the impugned order and direct that the appellant shall be released on bail subject to such conditions as shall be fixed by the trial Court.
“Needless to say, the observations which have been made in this order are for the purpose of deciding the application for bail and the Court will, undoubtedly, decide upon the fate of the appellant in the trial on the basis of the evidence and in accordance with law”
-the order reads.
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