Full Judgment Text
2023:BHC-AS:25259-DB
NISHA
SANDEEP
CHITNIS
Digitally signed by
NISHA SANDEEP
CHITNIS
Date: 2023.09.01
14:52:37 +0530
902-apeal.350.2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.350 OF 2023
Mohammed Irfan Rehmatali Shaikh
Age about 50 Years, Occ – Tailor,
Permanent address – Room No 9/7,
Razzak Chawl, Opp – Golden Bakery,
Kherwadi Road, Bandra (East),
Mumbai – 400051.
(Presently lodged in Taloja Jail) ... Appellant
Versus
State of Maharashtra
(Through ATS, Kalachowki Police Station,
In CR No UAPA 18 of 2021 u/s 18, 19, 20
of UAPA r/w S 302 r/w S 115 of IPC And
Ss 201, 120 B, 34 of IPC.
In Special Case No.100274 of 2022) ...Respondent
Mr. Majeed Memon, Senior Counsel a/w Mr. Mateen Qureshi,
Mr. Khalil Girkar and Mr. Tapish Jain i/b Majeed Memon and
Associates, for the Appellant.
Ms. S. S. Kaushik, A.P.P for the Respondent – State.
PSI – Mr. Suryakant Ambre and HC Mr. Satyawan Lad from ATS are
present in Court.
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
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DATE : 29 AUGUST 2023
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ORAL JUDGMENT (Per Revati Mohite Dere, J.):
1. At the outset, learned counsel for the appellant seeks leave
to amend the prayer clause. He also seeks leave to carry out
amendment in the second set. Leave granted. Amendment to be
carried out forthwith.
2. Heard.
3. Admit. Learned A.P.P waives notice on behalf of the
respondent-State.
4. By this appeal, preferred under Section 21 of the National
Investigation Agency Act, ('NIA Act’), the appellant seeks quashing
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and setting aside of the impugned order dated 8 July 2022, passed by
the learned Special Judge under MCOCA, TADA, POTA & NIA, City
Civil and Sessions Court, Mumbai in Bail Application (Exhibit – 3) in
NIA Special Case No.274 of 2022, by which, the appellant’s
application (Exhibit 3) seeking his enlargement on bail, came to be
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rejected by the said Court. Accordingly, the appellant seeks his
enlargement on bail in connection with C.R. No.18 of 2021,
registered with the Kalachowki Police Station, Mumbai, for the alleged
offences punishable under Sections 18, 19 and 20 of the Unlawful
Activities (Prevention) Act, 1967 ('UAPA'); Sections 115 r/w 302, 201,
34 r/w 120B of the Indian Penal Code.
5. Mr. Memon, learned senior counsel for the appellant
submits that taking the prosecution case as it stands, no offence as
alleged is disclosed as against the appellant. He submits that there is no
material in the charge-sheet to show that the appellant, a tailor had
any knowledge that Zakir Husain (accused No.1) was involved in any
terrorist activity and as such it cannot be said that there are reasonable
grounds for believing that the accusations against the appellant are
prima facie true and as such the bar of Section 43-D of the UAPA
would not apply. He submits that the appellant came in contact with
Zakir, during the lock-down, when Zakir helped the appellant to
commute for his work, since Zakir would ply rickshaw in the
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suburbs of Mumbai. He submits that as Zakir had helped him during
the lock-down to enable him to continue with his work (tailoring job),
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he permitted Zakir to stay with him on the intervening night of 17
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September and 18 September 2021. Learned senior counsel submits
that Zakir had informed the appellant that he had misplaced his wallet
and mobile phone and that as one of his close relatives was to get
married in Uttar Pradesh and he needed money to purchase the ticket,
he was excepting an amount of Rs.50,000/- from Western Union
Money transfer. He submits that on the request of Zakir, since Zakir
had disclosed to the appellant that he had misplaced his wallet and
mobile and had no identity card for purchase of rail ticket, the
appellant gave his identity card for receiving the amount from
Western Union Money transfer and also his mobile phone for the said
purpose. He submits that the appellant had absolutely no reason to
believe that Zakir had any intention to use the said amount of
Rs.50,000/- for any other purpose i.e. terrorist activity, other than
what was stated to him.
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6. Learned APP opposes the appeal. Learned APP has
tendered a compilation of certain documents and statements,
evidencing transfer of Rs.50,000/- from U.S.A into the appellant’s
bank account.
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7. Perused the papers. It is the prosecution case that on 13
September 2021, ATS received information from secret sources that
accused No.1 – Zakir alongwith one person i.e. Anthony @ Anwar,
residing in the neighbouring country are indulging in terrorist
activities. The said Zakir is alleged to have been acting on the
instructions of the said person i.e. Anthony for striking terror in
Mumbai, Maharashtra and other places and for facilitating the said act,
they were collecting people. Pursuant thereto, Police Inspector –
Navnath Ghuge, attached to Kalachowi Unit of ATS, lodged an FIR,
which was registered vide C.R. No.18 of 2021 as against Zakir
(accused No.1) and Anthony, alleging offence punishable under Section
18 of UAPA. Pursuant thereto, investigation commenced and the
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police started searching for Zakir. On 18 September 2021 Zakir came
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to be arrested from the house of the appellant. Admittedly, the
appellant had not been named in the FIR by the police. It appears that
the appellant was called for interrogation, soon after the arrest of
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Zakir on 18 September 2021, and was arrested only on 30
September 2021. It appears that in the interregnum, Zakir made a
disclosure statement under Section 27 of the Evidence Act, pursuant to
which, Zakir produced Rs.50,000/- cash and a chit, on which it was
written ‘Zakirbhai’ and one memory card from the appellant’s house.
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The said articles were recovered on 29 September 2021. It is
pertinent to note, that the appellant has not disputed the fact, that
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Zakir stayed with him in the intervening night of 17 and 18
September 2021, the finding of the articles from his residence at the
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instance of the accused No.1 – Zakir on 29 September 2021; and of
receiving Rs.50,000/- from U.S.A.
8. Prima facie, we are of the opinion, that if the appellant
had the intent or knowledge that Zakir was engaged in terrorist
activities, it was well within his domain to destroy/remove the articles,
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which were kept by Zakir in his house, however, the same was not
done. As far as, 205 calls being exchanged between the appellant and
accused No.1 – Zakir over a period of one year is concerned, it cannot
be said to be incriminating per se, since the appellant admits knowing
Zakir, since lockdown, as Zakir had helped him. Mere exchange of
CDR’s between the accused No.1 – Zakir and the appellant, would not
connect the appellant with the alleged offences or said to be
incriminating, more particularly, when there is no other evidence to
connect the appellant with the alleged offences.
9. Learned APP although has tendered a compilation of
documents and statements, has not been able to point out a single
statement from the said compilation of witnesses to show that the
appellant had the requisite knowledge that Zakir was indulging in
terrorist activities, apart from pointing out the three admitted
circumstances i.e. that Zakir stayed with the appellant in the
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intervening night of 17 and 18 September 2021; that there was
recovery at the instance of Zakir from the appellant’s house i.e. of
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Rs.50,000/-, memory/sim card a chit on which it was written
‘Zakirbhai’; and of a money transfer from one Rohan Habib from
U.S.A to the bank account of the appellant. When questioned, the
learned APP states that Rohan Habib, who sent Rs.50,000/- in the
appellant’s account, has not been made an accused. No doubt, there is
a statutory embargo under Section 43-D(5) of the UAPA but that
embargo per se does not act as an impediment to grant bail, in the
event, the Court comes to a conclusion that there are no reasonable
grounds to believe that the allegations are prima facie true.
10. Considering the material on record and having perused the
statements, we are prima facie of the view that the circumstances relied
upon by the prosecution are not of such a nature so as to sustain a
reasonable belief that the accusations against the appellant are prima
facie true and hence the bar under Section 43-D(5) of the UAPA will
not apply. We have seen the statements of the prosecution witnesses
tendered by the learned APP and have recorded our findings, as stated
aforesaid. Infact, we may point out that the perusal of the statements
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show that the allegations are as against accused No.1 – Zakir. The
learned APP has failed to point out any material to show that the
appellant was aware of the activities of Zakir or that the appellant had
participated in any terrorist activity.
11. Considering what is stated aforesaid, we are satisfied that
the appellant has made out a case for bail and as such the Appeal
deserves to be allowed. Hence, the following order :
ORDER
(i) The appeal is allowed;
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(ii) The impugned order dated 8 July 2022, passed by the
learned Special Judge under MCOCA, TADA, POTA & NIA, City
Civil and Sessions Court, Mumbai in Bail Application (Exhibit –
3) in NIA Special Case No.274 of 2022, stands quashed and set-
aside;
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(iii) The appellant be enlarged on bail, on executing PR Bond
in the sum of Rs. 50,000/- with one or more sureties in the like
amount, to the satisfaction of the learned Judge, NIA Court;
(iv) The appellant shall report to the office of the NIA,
Mumbai Branch, Mumbai, on the first Saturday of every month
from 10:00 a.m. to 12:00 noon, till the conclusion of the trial.
(v) 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;
(vi) The appellant shall not leave the jurisdiction of NIA
Court, Greater Mumbai, till the conclusion of the trial, without
the prior permission of the NIA Court;
(vii) The appellant shall not leave India, without the prior
permission of the NIA Court;
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(viii) The appellant shall surrender his passport, if any, before
the NIA Court, before his release.
(ix) The appellant shall inform his latest place of residence
and mobile contact 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
Officer of the concerned Police Station;
(x) The appellant to cooperate with the conduct of the trial
and attend the NIA Court on all dates, unless exempted;
(xi) The appellant shall file an undertaking with regard to
clauses (iv) to (x) before the NIA Court, within two weeks of his
release;
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(xii) If there is breach of any of the aforesaid conditions, the
prosecution shall be at liberty to seek cancellation of the
appellant's bail.
12. Appeal is allowed in the aforesaid terms and is
accordingly disposed of.
13. It is made clear that the observations made herein are
prima facie, and the learned Special Judge shall decide the case
on its own merits, in accordance with law, uninfluenced by the
observations made in this order.
14. All concerned to act on the authenticated copy of
this judgment.
GAURI GODSE, J. REVATI MOHITE DERE, J.
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