2023:BHC-AS:27806-DB

Osk J-Apeal-232-2022.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 232 OF 2022

Mahesh Sitaram Raut ]

Aged 33 Years, Occ. Researcher and Teacher ]
R/o. Lakahpur, Post : Morshi, ]
Tal : Brahmapuri, Dist.: Chandrapur ]
Presently lodged in ]
Taloja Central Prison, Raigad ] … Appellant

V/s.

1. The National Investigation Agency ]

Through its Superintendent ]
Having his Office At : ]
Cumballa Hills, Peddar Road, ]
Mumbai – 400 026. ]
2. The State of Maharashtra ]
Office of Learned Public Prosecutor ]
High Court at Bombay. ] … Respondents

Mr.Mihir Desai, Senior Advocate a/w. Ms.Pritha Paul, Ms.Devyani Kulkarni &
Mr.Swaroop Nair i/b. Mr.Vijay Hiremath for Appellant.

Mr.Devang Vyas, Additional Solicitor General of India a/w. Mr.Sandesh Patil,

Mr.Chintan Shah, Mrs.Anusha Amin & Mr.Shrikant Sonkawade for
Respondent No.1-NIA.

Mrs.A.S. Pai, P.P. a/w. Mrs.S.D. Shinde, A.P.P. for Respondent No.2-State.

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CORAM : A. S. GADKARI AND

SHARMILA U. DESHMUKH, JJ.

Reserved On : 12th September 2023.

Pronounced On : 21st September 2023.

JUDGMENT ( Per : A.S. Gadkari, J.)

1) Appellant, original accused No.5, has impugned Order dated

23rd November 2021 passed below Exhibit-507 in Special Case No. 414 of

2020 alongwith Special Case No. 871 of 2020, by the learned Special Judge

(N.I.A.), City Civil & Sessions Court, Greater Mumbai, rejecting his

application for bail under Section 439 of Criminal Procedure Code (for short,

“Cr.P.C.”), by preferring present Appeal under Section 21 (4) of The National

Investigation Agency Act, 2008 (for short “N.I.A. Act”).

2) Heard Mr.Mihir Desai, learned senior counsel for Appellant,

Mr.Devang Vyas, learned Additional Solicitor General of India for Respondent

No.1-NIA and Mrs.Pai, learned P.P. with Mrs.S.D. Shinde, learned A.P.P. for

Respondent No.2-State. Perused entire record produced before us.

3) Appellant is arraigned as accused No.5 in FIR No. RC-01/2020/

NIA/MUM registered by National Investigation Agency (for short “NIA”)

under Sections 120-B, 115, 121, 121-A, 124-A, 153, 201, 505(1)(b) along

with 34 of the Indian Penal Code, 1860 (for short “IPC”) and under Sections

13, 16, 17, 18, 18B, 20, 38 and 39 of The Unlawful Activities (Prevention)

Act, 1967 (for short “UAP Act”).

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4) The facts which are necessary to decide present Appeal can

briefly be stated as under :

(i) On 31.12.2017, Bhima Koregaon Shaurya Din Prerana Abhiyan,

organised an event called ‘Elgaar Parishad’ in Shaniwarwada, Pune

(for short “Elgar Parishad Program”). It was decided to celebrate

200th anniversary of the historic battle of Bhima Koregaon on

01.01.2018 by more than 200-250 Social organisations under the

banner of ‘Bhima Koregaon Shaurya Din Prerana Abhiyan’ . The

program was held from 2:30 p.m. to 10:00 p.m. On 01.01.2018,

mobs bearing saffron flags attacked persons travelling to and

returning from Shaniwarwada Pune. There was large scale violence

and one youth lost his life.

(ii) A Zero(0) FIR was registered on 02.01.2018 at Pimpri Chinchwad

Police Station, Pune by an eye-witness, Ms. Anita Salve under

various provisions of IPC, Arms Act,1959, Maharashtra Police Act,

1951 and Scheduled Castes and Scheduled Tribes (Previsions of

Atrocities) Act, 1989) (for short “SC & ST Act”) alleging

involvement of Sambhaji Bhide, Milind Ekbote and their followers

for the attack and violence. A State wide bandh was also called by

several Dalit, OBC, Maratha and Muslim organisations against the

attacks across Maharashtra State thereafter.

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(iii) On 08.01.2018, first informant Mr. Tushar Damgude, registered

FIR No. 4 of 2018 under the provisions of Sections 153-A, 505(1)

(b), 117 read with 34 of IPC stating that, the Elgar Parishad

Program organised at Shaniwarwada, Pune on 31.12.2017 was

attended by him at around 2:00 p.m., wherein there were a few

speakers, compere, singers and other performers who performed

on stage. That the speakers gave provocative speeches, their

performances were provocative in nature and had the effect of

disrupting communal harmony. It is stated that, banned terrorist

organisation Communist Party of India (Maoist) (for short

“CPI(M)”) had an organisational role to play in arranging the said

program. CPI(M) wanted to infiltrate, inculcate and permeate its

ideology amongst the masses, mostly impoverished classes and

misguide them towards violent unconstitutional activities.

According to the complainant Kabir Kala Manch's (for short

“KKM”) Sudhir Dhawale, other members and activists had

performed provocative street plays in different areas of

Maharashtra earlier, made malice speeches and spread false

history, made disputable statements and objectionable slogans

inciting passion and hatred to disrupt communal harmony, sung

songs and participated in road dramas. On 31.12.2017, these very

activists amongst others performed skit / stage plays at the 'Elgar

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Parsihad Program’. As a direct result of which, on 01.01.2018

there were incidents of violence, arson, stone pelting and caused

death of an innocent person near Bhima Koregaon, Pune.

(iv) Houses of Rona Wilson (A. No. 2), Surendra Gadling (A. No.3),

Sudhir Dhawale (A. No.1), Harshali Potdar, Sagar Gorkhe (A.

No.13), Deepak Dhengale, Ramesh Gaichor (A. No.14) and Jyoti

Jagtap (A. No.15) were searched by the police. Articles and

incriminating material seized during search was sent to the

Forensic Science Laboratory, Pune. Analysis of the seized electronic

/ digital articles confirmed that accused Surendra Gadling, Rona

Wilson, Shoma Sen (A. No.4), Appellant (A. No.5), Comrade M. @

Milind Teltumbade (WA-1 - now deceased), Comrade Prakash @

Navin @ Rituprn Goswami (WA-2 - absconding), Comrade Manglu

(WA-3 -absconding), Comrade Deepu (WA-4 - absconding) are

involved in the crime. During investigation, the investigating

officer invoked provisions of Sections 13, 16, 17, 18, 18(B), 20,

38, 39, and 40 of the UAP Act.

(v) Accused Surendra Gadling, Rona Wilson, Smt. Shoma Sen,

Appellant (A. No.5) and Sudhir Dhawale were arrested on

06.06.2018. Residences of Smt. Shoma Sen and Appellant (A.

No.5) were searched, and Police seized digital devices and other

articles. The articles and material seized showed involvement of

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more accused, viz; Varavara Rao (A. No.6), Arun Ferreira (A.

No.8), Smt. Sudha Bharadwaj (A. No.9), Vernon Gonsalves (A.

No.7), Stan Swamy (A. No.16), Gautam Navlakha (A. No.11) and

Dr.Teltumbde (A. No.10). Their names were added as accused on

23.08.2018 in present crime.

(vi) Searches were conducted on 28.08.2018 at the

residences/workplaces of Varavara Rao, Smt. Sudha Bharadwaj,

Arun Ferreira, Gautam Navlakha, Stan Swamy and Vernon

Gonsalves. Police arrested Varavara Rao, Smt. Sudha Bharadwaj,

Gautam Navlakha, Arun Ferreira and Vernon Gonsalves and put

them under house arrest. On 15.11.2018, Pune Police filed

chargesheet under Sections 153-A, 505(1)(b), 117, 120-B, 121,

121-A, 124-A and 34 IPC and Sections 13, 16, 17, 18, 18B, 20, 38,

39 and 40 of the UAP Act against Sudhir Dhawale, Surendra

Gadling, Shoma Sen, Appellant (A. No.5), Rona Wilson and five

absconding accused persons namely Kishan da @ Prashanto Bose

(WA-5), Milind Teltumbde, Prakash @ Rituparn Goswami, Deepu

and Manglu.

Subsequently, on 21.02.2019, Police filed Supplementary

Chargesheet under Sections 153-A, 505(1)(b), 117, 120-B, 121,

121-A, 124-A & 34 IPC and Sections 13, 16, 17, 18, 18(B), 20, 38,

39 and 40 of the UAP Act against Varavara Rao, Arun Ferreira,

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Vernon Gonsalves and Sudha Bharadwaj and one absconding

accused namely Ganapathy @ Mupalla Laxman Rao (WA-6).

(vii) On 14.11.2018, the Competent Authority granted sanction for

prosecution under the U.A.P. Act.

(viii) On 15.11.2018, chargesheet was filed against the first five accused

including Appellant in the above case under various provisions of

IPC and UAP Act.

(ix) On 21.02.2019 a further supplementary Chargesheet was filed

against four more accused persons in the above case.

(x) Appellant filed an application for bail under Section 439 of CrPC

before the learned Additional Sessions Judge at Pune, which was

rejected by an Order dated 06.11.2019.

(xi) On 24.01.2020, the Under Secretary to the Government, Ministry

of Home Affairs, New Delhi, directed the Respondent No. 1 - NIA

to take up the investigation of FIR No. 4/2018 of Vishrambaug

Police Station. NIA re-registered FIR RC-01/2020/NIA/Mum u/s.

Sections 153-A, 505(1)(b), 117, 34 IPC and Sections 13, 16, 18,

18B, 20 and 39 of UAP Act on 24.01.2020.

(xii) On 09.10.2020, Respondent No.1-NIA filed Chargesheet in the

present crime against five accused including Appellant as Accused

No.5.

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(xiii) Appellant thereafter preferred an application for bail below

Exhibit-507. Learned Special Judge (NIA) for Greater Mumbai by

its impugned Order dated 23.11.2021 has rejected the said

application.

(xiv) Appellant filed this Appeal on 23.02.2022. The Respondent No.1-

NIA filed its Affidavit-in-Reply dated 14.03.2023 to the Appeal.

5) Mr.Desai, learned senior counsel for Appellant submitted that,

the Appellant is a highly educated person, has done his M.A. in Social Work

from Tata Institute of Social Sciences (TISS), Mumbai and M.A. in Political

Science from the Rashtra Sant Tukdoji Maharaj University (RTMU), Nagpur.

That, upon completing his MA from TISS, he received a Special Fellowship

from the said institute to conduct research on ‘Conflict and Development

Concerns in Central India’. After completing the said Fellowship, Appellant

was selected for the prestigious Prime Minister Rural Development

Fellowship Programme and was allocated to work with the District Collector,

Gadchiroli. That, during his said Fellowship, Appellant in coordination with

the District Collector was successful in liaising between the locals and the

Government. That, the Appellant has written several articles in local media

on issues concerning indigenous people and their rights. He was selected to

attend an International Youth Development and Education Programme in

July-August 2017 conducted at Brazil.

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5.1) He submitted that, the Appellant stands on a better footing than

the co-accused, namely, Dr. Anand Teltumbde (A. No.10), who has been

granted bail by this Court by its Order dated 18 th November 2022. That, the

Petition for Special Leave to Appeal (Crl.) No. 11345 of 2022 preferred by

the Respondent No.1-NIA against the said Order, has not been entertained by

the Hon’ble Supreme Court and by its Order dated 25 th November 2022 has

dismissed it.

5.2) Mr.Desai submitted that, the allegations against the Appellant

are three fold i.e. (i) Membership of the banned organization, (ii) He was

given task of recruitment of persons in the said organization and (iii)

handling of funds of the organization.

5.3) He submitted that, there is no material at all on record to

substantiate the said allegations and to indict him in the present crime. He

submitted that, the documents relied upon by the Respondent No.1-NIA

(page 117/350 and 118/351) are recovered from the computers of co-

accused Rona Wilson and Surendra Gadling respectively. That the document

at page No.118 only refers the name of the Appellant as ‘Mahesh’. That the

statement of witness Ms.Sakhrani also do not indict the Appellant in

commission of any offence as contemplated under Sections 13, 15 or 20 of

the UAP Act. That there is no material at all to indicate that, the Appellant in

fact recruited any person in the said party/organization.

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5.4) In support of his submissions Mr.Desai relied on the decisions,

namely, (i) Vernon Vs. State of Maharashtra & Anr., reported in 2023 SCC

OnLine SC 885 and (ii) Dr.Anand Teltumbde Vs. National Investigation

Agency & Anr., reported in 2022 SCC OnLine Bom 5174.

5.5) He submitted that, the prosecution has cited about 336

witnesses in the chargesheet. The Trial Court has not yet framed charge. No

prima-facie case is made out by the Respondent-NIA against the Appellant.

There are no antecedents at the discredit of Appellant. That, the Appellant is

in jail for about five years and three months and therefore also, by applying

the principles of law enunciated by the Supreme Court in the case of Union

of India Vs. K.A. Najeeb, reported in (2021) 3 SCC 731, the Appellant may

be released on bail.

6) Mr.Devang Vyas, learned Additional Solicitor General of India

for Respondent No.1-NIA submitted that, the material relied upon by the NIA

clearly indicates the activities of the banned Organization of which Appellant

is an active member. The said material in undeniable and unequivocal terms

establishes that, the Appellant is a member of the Communist Party of India

(Maoist). He submitted that, the violence which took place at Bhima

Koregaon wherein one person has died was a part of larger conspiracy. The

Appellant had received certain funds from co-accused and he utilized it for

the party work. He submitted that, testing the veracity of documents referred

to and relied upon by the Appellant (page 117/350 and 118/351) at this
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stage is not permissible. Its veracity and/or truthfulness has to be tested at

the time of trial only and not at the stage of bail. By referring to statement of

KW-4 dated 24.08.2020, Mr.Vyas submitted that, perusal of said statement

also clearly indicates that, the Appellant was in continuous contact with

other co-accused.

6.1) Mr.Vyas submitted that, during the investigation it was revealed

that the Appellant is an active member of CPI (M) and also member of

Central Convener Committee of the frontal organization i.e. Visthapan

Virodhi Jan Vikas Andolan (VVJVA) and he took active part in furthering the

unlawful activities of the banned organization with recruitment, funding and

providing support to the CPI (M).

6.2) He submitted that, the whole network of the Maoist Cadre of

CPI (M) systematically infiltrated in to Kabir Kala Manch and some of the

members of Kabir Kala Manch were recruited in the Moist Party. He

submitted that, during the course of investigation of present crime it is

revealed that, the strategy and tactics of the CPI (M), a banned organization

that, Dalit, Adiwasi and religious minorities are most important for the social

section to be taken cognizance by the party of the proletariat leading the

revolution. That the banned organization is intending to overturn the

democratically elected Government by its activities being carried out by the

persons like Appellant.

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6.3) Mr.Vyas submitted that, upon analysis of hard-disc seized from

accused Nirmala Kumari @ Narmadakka, in NIA RC-02/2019/NIA/MUM,

Original CR No. 19/2019 registered at Purada Police Station, Gadchiroli on

02.05.2019 in connection with IED blast/landmine blast and killing of 15

Police QRT personnel and one private driver at Jambhulkheda village,

Kurkheda, Maharashtra on 01.05.2019 at 11.40 – 12.00 hrs by Naxals of CPI

(M), a proscribed terrorist organization, it is found that, images/videos of

Appellant Mahesh Raut @ Rohit Verma delivering lecture in Gramsabha in

2017, letters of VVJVA etc are saved in her hard-disk which shows the links

of Appellant with CPI (M). That the Appellant is also known by nick name

‘Rohit Verma’.

6.4) He submitted that, the house searches of co-accused Shoma Sen

and Appellant were conducted and electronic material in the computers,

laptop, pendrive, memory cards were seized and was sent for analysis. That

the analysis of the electronic material seized from co-accused clearly reveals

that the Appellant and other co-accused are active members of CPI (M).

6.5) The communication/letter (page 117/350) seized from the co-

accused reveals that, the Appellant was provided with Rs. Five Lakhs by the

said organization for further providing it to the co-accused Surendra Gadling

and Sudhir Dhawale for the work of Bhima Koregaon. He submitted that,

therefore there is prima-facie material to indicate that, the Appellant is a

member of the said organization, received funds from it and onward

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transmitted it to co-accused for the Party work. That the Appellant was also

instrumental in recruitment of persons in the said organization.

6.6) Mr.Vyas submitted that, the decisions relied upon by the

Appellant in the cases of Dr.Anand Teltumbde (supra) and Vernon (supra)

are not applicable to the Appellant. He relied upon the decisions of Hon’ble

Supreme Court and this Court namely, (i) National Investigating Agency Vs.

Zahoor Ahmad Shah Watali, reported in (2019) 5 SCC 1, (ii) Hany Babu Vs.

National Investigation Agency, Criminal Appeal No. 351 of 2022, dated 19 th

September 2022, (iii) Jyoti Jagtap Vs. National Investigating Agency & Anr.,

Criminal Appeal No. 289 of 2022 dated 17th October 2022 & (iv) Dr.Anand

Teltumbde Vs. National Investigation Agency & Anr., Criminal Appeal No.676

of 2021, dated 18th November 2022 : 2022 SCC OnLine Bom 5174. He

submitted that, the parameters applied to the case of Hany Babu (supra) and

Jyoti Jagtap (supra) while rejecting their bail applications be applied in the

case of Appellant too. He submitted that, taking into consideration the role of

Appellant and the material on record, prima-facie case against Appellant is

made out and therefore his appeal may be dismissed.

7) The law relating to interpretation and application of Section

45-D(5) is well enunciated and crystallized by the Hon’ble Supreme Court by

its various decisions.

7.1) The Hon’ble Supreme Court in the case of National Investigating

Agency Vs. Zahoor Ahmad Shah Watali (supra) in para Nos.24 & 27 has held
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as under:-

“24. A priori, the exercise to be undertaken by the Court at this

stage - of giving reasons for grant or non-grant of bail - is
markedly different from discussing merits or demerits of the
evidence. The elaborate examination or dissection of the
evidence is not required to be done at this stage. The Court is
merely expected to record a finding on the basis of broad
probabilities regarding the involvement of the accused in the
commission of the stated offence or otherwise.
27. For that, the totality of the material gathered by the
investigating agency and presented along with the report and
including the case diary, is required to be reckoned and not by
analysing individual pieces of evidence or circumstance. In any
case, the question of discarding the document at this stage, on
the ground of being inadmissible in evidence, is not permissible.
For, the issue of admissibility of the document / evidence would
be a matter for trial. The Court must look at the contents of the
document and take such document into account as it is”

7.2) In the case of Thwaha Fasal Vs. Union of India, reported in

(2011) 4 SCC 240, the Hon’ble Supreme Court in para No.23 has held as

under:-

“23. Therefore, while deciding a bail petition filed by an

accused against whom offences under Chapters IV and VI of the
1967 Act have been alleged, the Court has to consider whether
there are reasonable grounds for believing that the accusation
against the accused is prima facie true. If the Court is satisfied
after examining the material on record that there are no
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reasonable grounds for believing that the accusation against the

accused is prima facie true, then the accused is entitled to bail.
Thus, the scope of inquiry is to decide whether prima facie
material is available against the accused of commission of the
offences alleged under Chapters IV and VI. The grounds for
believing that the accusation against the accused is prima facie
true must be reasonable grounds. However, the Court while
examining the issue of prima facie case as required by sub-
section (5) of Section 43D is not expected to hold a mini trial.
The Court is not supposed to examine the merits and demerits
of the evidence. If a charge sheet is already filed, the Court has
to examine the material forming a part of charge sheet for
deciding the issue whether there are reasonable grounds for
believing that the accusation against such a person is prima facie
true. While doing so, the Court has to take the material in the
charge sheet as it is.”

7.3) In a recent decision, in the case of Vernon Vs. State of

Maharashtra & Ors., reported in 2023 SCC OnLine SC 885, the Hon’ble

Supreme Court in para No.15 has held that,

“15. … … … … … … Under ordinary circumstances in a

petition for bail, we must point out, this exercise of analysis of
evidence would not have been necessary. But in view of the
restrictive provisions of Section 43D of the 1967 Act, some
element of evidence-analysis becomes inevitable.”

8) Perusal of chargesheet indicates that, the concise allegations

(draft Charge) against the Appellant along with other co-accused have been
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stated in paragraph Nos. 17.8; 17.8.1; 17.10.1; 17.11 & 17.12 of the

chargesheet. The said allegations can be broadly categorized under three

heads, namely, (i) Membership of the banned organization, (ii) Recruitment

of persons in the said organization & (iii) Handling/transfer of funds of

organization to co-accused.

8.1) To support the said allegations, Respondent No.1-NIA has relied

on the material in the form of statements of witnesses and communications

seized from the computers of co-accused i.e. statement of Ms.Monika R.

Sakhrani, statement of KW-4, a communication addressed by Com. Prakash

to Com. Rona (page 117/350) seized from the computer of co-accused

Mr.Rona Wilson and a letter seized from the computer of accused No.3

Surendra Gadling (page 118/351).

8.2) Perusal of statement of Ms.Monika Sakhrani discloses that, on

being asked about the Appellant she has stated that, she knew him as he was

a student of TISS. She also remembered him due to Gadchiroli issue. She

had read in paper that Harshali and Appellant were found in Gadchiroli

Jungle (forest).

As far as statement of Ms.Monika Sakhrani is concerned, it

indicates the fact that, the Appellant was a student of TISS and as per the

newspaper report, he along with Harshali were found in the Gadchiroli forest

and nothing else.

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8.3) The statement of KW-4 indicates that, the Appellant along with

co-accused and other persons were working for CPI (M) being Urban Naxal

Members.

Statement of KW-4 reveals that, the Appellant was working for

CPI (M) as its Urban Naxal Member along with co-accused and other

persons.

8.4) Perusal of communication (page 117/350) reveals that, the

same is allegedly addressed by Com. Prakash to Com. Rona. Apart from the

other facts mentioned in the said communication in its third paragraph it is

stated that, as per the rules of the party in a meeting arranged at a

Grampanchayat, the Appellant was handed over Rs. Five Lakhs for its

onward transmission to Com. Surendra and Com. Sudhir and it was

informed to them that the agitation of Bhima Koregaon appears to have been

losing its intensity. It is also mentioned therein that, two comrades sent by

Appellant (TISS Institute) have reached gorilla region safely.

8.4.1) As far as communication at page No.117/350 is concerned,

though it refers to the name of Appellant and that he was handed over Rs.

Five Lakhs for its onward transmission to other co-accused is concerned, the

same is recovered from the computer of co-accused Mr.Rona Wilson. The

other communication at page No.118/351 is seized from the computer of co-

accused Surendra Gadling. These documents have not been recovered from

the Appellant and therefore, as has held by the Supreme Court in the case of
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Vernon (supra) these communications or contents thereof have weak

probative value or quality. The contents of these letters through which the

Appellant is sought to be implicated are in the form of hearsay evidence,

recovered from co-accused.

8.4.2) Assuming for the sake of arguments, Com. Prakash had handed

over Rs. Five Lakhs to the Appellant for its onward transmission or handing it

over to Com. Surendra and Com. Sudhir, then there is no corroboration at all

to it, that the Appellant in fact received the money and handed it over to co-

accused. Merely because Com. Prakash says that he handed over the said

amount to Appellant, it ipso-facto does not make Appellant recipient of it, for

want of basic corroboration for it.

8.5) The letter at page 118/351 seized from the computer of

Surendra Gadling (A-3) is addressed to the said co-accused by an unknown

person. The author of the said letter refers only that, Mahesh and Nandu

have reached to them safely on 3rd Jan..

As far as letter at page No.118 is concerned, in para No.43 of

Dr.Teltumbde’s decision (supra) it has been observed that, in the list of

central committee members of CPI (M) Group at Sr.No.4 one Katkam

Sudarshan @ Anand @ Mahesh @ Bhaskar appears as Central Committee

and Polit Bureau Member of CPI (M). Prima-facie therefore it can be said

that, the name ‘Mahesh’ in the said letter is a disputed identity of the said

person.
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9) No evidence of any of the persons who are alleged to have been

recruited or have joined the organization through the Appellant has been

produced on record and brought before us and therefore we are unable to

prima-facie accept the contention of Respondent-NIA that, the Appellant has

committed the offence relating to recruitment of persons into the said

organization.

10) From the material on record it appears to us that, no covert or

overt terrorist act has been attributed to the Appellant. The communications

(page 117 & 118) seized from the computers of co-accused are in the nature

of hearsay, as far as Appellant is concerned.

11) We are unable to accept submission of Mr.Vyas regarding

application of parameters in the cases of Hany Babu (supra) and Jyoti Jagtap

(supra) to the present case and we respectfully disagree with him on the said

point. In those two cases, the considerations which weighed with us while

rejecting their bail pleas were entirely different. For the sake of brevity, we

are not repeating the same here, as it is not necessary. We therefore do not

agree with the submissions of Respondent-NIA that, the Appellant’s case can

be equated with Hany Babu (supra) or Jyoti Jagtap (supra) and deserves to

be dismissed.

12) In the present case, the incriminating material as adverted to

herein above does not in any manner prima-facie leads to draw an inference

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that, Appellant has committed or indulge in a ‘terrorist act’ as contemplated

under Section 15 of UAP Act.

12.1) After taking into consideration the totality of entire material and

evidence on record against the Appellant as noted herein above, this Court is

of the view that, at the most it can be said that the Appellant is a member of

CPI (M) and therefore it would attract provisions of Sections 13 and 38 of

UAP Act. According to us, there is no material on record to indicate that,

there are reasonable grounds for believing that the accusations against the

Appellant under Sections 16, 17, 18, 20 and 39 of UAP Act are prima-facie

true.

13) Section 13 of UAP Act provides for maximum punishment of

imprisonment of 7 years. Section 38 of UAP Act provides for maximum

punishment of imprisonment for a term not exceeding 10 years. The Hon’ble

Supreme Court in the case of Vernon (supra) in para 42 has held that, as far

as offence under Section 13 of UAP Act and the offences under IPC are

concerned, the yardstick for justifying the Appellant’s plea for bail is lighter

in this context. That, in the cases of K.A. Najeeb (supra) and Angela Harish

Sontakke Vs. State of Maharashtra, reported in (2021) 3 SCC 723, delay of

trial was considered to be relevant factor while examining the plea for bail of

the accused.

14) In view of the above discussion, we are of the prima-facie

opinion that on the basis of the material placed before us by the NIA, it
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cannot be said that there are reasonable grounds for believing that the

accusations against the Appellant is prima-facie true to attract Sections 16,

17, 18, 20 and 39 of UAP Act.

15) The Appellant is in pre-trial incarceration for more than five

years and three months. There are no criminal antecedents at the discredit of

Appellant. Therefore in our opinion a case for grant of bail to the Appellant

has been made out.

15.1) Hence, the following Order:-

(i) The impugned Order dated 23rd November 2021 passed below

Exhibit-507 in Special Case No. 414 of 2020 alongwith

Special Case No. 871 of 2020 is quashed and set-aside;

(ii) Appellant be released on bail in Special Case No.414

alongwith Special Case No.871 of 2020 arising out of RC-

01/2020/NIA/MUM under Sections 120B, 115, 121, 121A,

124A, 153, 201, 505(1)(B) read with 34 of IPC and Sections

13, 16, 17, 18, 18B, 20, 38 and 39 of the UAP Act on his

executing PR bond of Rs.1,00,000/- with one or more solvent

local sureties in the like amount;

(iii) Appellant is permitted to furnish cash bail for a period of 8

weeks from today and during the said period, Appellant shall

comply with the condition of furnishing solvent local sureties

as mentioned in para No.15.1(ii);

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(iv) Appellant shall not tamper with the evidence of prosecution

nor influence the prosecution witnesses;

(v) Before his actual release from jail Appellant shall furnish his

contact numbers, both-mobile and landline and permanent

residential address to the Investigating Officer and the learned

Special Court before which the case of Appellant is pending;

(vi) Appellant shall attend the concerned police station where he

intends to reside after his release from jail, initially for a

period of one year, once in a fortnight i.e. on every 1 st and 16th

of each English Calendar month and thereafter on every first

Monday of the month between 10:00 a.m. and 12:00 noon,

till conclusion of trial;

(vii) Appellant shall not leave the jurisdiction of this Court without

prior permission from the learned Special Judge (NIA),

Greater Mumbai / Trial Court, if he desires to travel outside

the jurisdiction of this Court;

(viii) Appellant shall deposit his passport held by him before his

actual release from jail, with the designated Special Court.

16) Appeal is accordingly allowed in the aforesaid terms.

17) After pronouncement of the present Judgment, Mr. Patil, learned

Special P.P. appearing for the NIA requested this Court for stay of its

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operation and implementation to enable NIA to challenge it before the

Hon’ble Supreme Court. Though opposed by the learned Senior Advocate for

Appellant, considering the fact that Appellant is in jail for more than five

years and three months, effect of present Judgment and Order granting bail

to the Appellant will remain stayed for a period of one week from today.

( SHARMILA U. DESHMUKH, J. ) ( A.S. GADKARI, J. )

Signed by: Omkar S. Kumbhakarn 23/23

Designation: PA To Honourable Judge
Date: 21/09/2023 13:52:58