MD. SADDAM @ MOHAMMAD SADDAM @ SADDAM MALLIK @ ABDUL MALLICK vs THE UNION OF INDIA

IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION

APPELLATE SIDE
CRA (DB) 324 of 2025

MD. SADDAM@ MOHAMMAD SADDAM@ SADDAM MALLIK @ ABDUL
MALLICK
VS.
THE UNION OF INDIA

Before: The Hon’ble Justice Arijit Banerjee
&
The Hon’ble Justice Apurba Sinha Ray

: Mr. Deep Chaim Kabir, Sr. Adv.
For the Appellant
Mr. M.H. Chowdhury, Adv.



: Mr. A. K. Maity (Mohanty), Spl. P.P.
For the UOI


Mr. Bhaskar Prasad Banerjee, Spl. P.P.
Mr. Debayan Sen, Adv.
Mr. DebasishTandon, Adv.

CAV on : 30.09.2026
Judgment on : 13.11.2026


Apurba Sinha Ray, J.
1. Mr. Kabir, learned Senior Counsel has submitted that the petitioner is in
custody for more than 3 years 4 months and there are 52 Charge-sheet
witnesses and only 3 of them have been examined. There is no chance of an
early conclusion of the trial and accordingly, the petitioner is entitled to be
favoured with an order of bail on any term and condition. Mr. Kabir has
submitted that the requirement of ground of arrest being communicated to
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the arrestee, which emanates from the Indian Constitution was not
communicated to the petitioner at the relevant point of time. In this regard,
he has referred to the judgment of Najeeb reported in AIR 2021 SC 712-3JJ
which according to Mr. Kabir holds the field as of now and should be
considered in the matters of bail under the UAPA. The prosecution rely
upon three judgments i.e. Gurwinder Singh reported in (2024) 5 SCC
403 , Gulfisha Fatima reported in 2026 SCC OnLine SC 10 and Watali
reported in 2019 SC 1734 which contain divergent views with Najeeb as
aforesaid. It was further submitted that the entire allegation against the
appellant is to the effect that he is an ISIS sympathizer and proceeded with
indoctrination of Islamic Jehadi groups to several youth, and further,
several images, videos with incriminating materials were found in the mobile
phones and laptops of the accused. Although the same materials were
recovered from another person that is Farhan, the Investigating Authority
did not make him an accused, rather cited him as a sterling witness in the
Charge-sheet. Mere possession of some materials in the form of literature,
photographs or videos does not constitute any offence whatsoever. The same
principle of law in UAPA has been followed by the Hon’ble Supreme Court in
several important cases. In Thwaha Fasal vs. Union of India reported in
(2022) 14 SCC 766 at paragraph 39 and 40, the Hon’ble Apex Court
observed as hereunder:
“ 39. Now the question is whether on the basis of the materials
forming part of the charge-sheet, there are reasonable grounds
for believing that accusation of commission of offences under
Sections 38 and 39 against Accused 1 and 2 is true. As held
earlier, mere association with a terrorist organisation is not
sufficient to attract Section 38 and mere support given to a
terrorist organisation is not sufficient to attract Section 39. The
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association and the support have to be with intention of
furthering the activities of a terrorist organisation. In a given
case, such intention can be inferred from the overt acts or acts
of active participation of the accused in the activities of a
terrorist organisation which are borne out from the materials
forming a part of charge-sheet. At formative young age,
Accused 1 and 2 might have been fascinated by what is
propagated by CPI (Maoist). Therefore, they may be in
possession of various documents/books concerning CPI
(Maoist) in soft or hard form.
40. Apart from the allegation that certain photographs showing
that the accused participated in a protest/gathering organised
by an organisation allegedly linked with CPI (Maoist), prima
facie there is no material in the charge-sheet to project active
participation of Accused 1 and 2 in the activities of CPI (Maoist)
from which even an inference can be drawn that there was an
intention on their part of furthering the activities or terrorist acts
of the terrorist organisation. An allegation is made that they
were found in the company of Accused 3 on 30-11-2019. That
itself may not be sufficient to infer the presence of intention.
But that is not sufficient at this stage to draw an inference of
presence of intention on their part which is an ingredient of
Sections 38 and 39 of the 1967 Act. Apart from the fact that
overt acts on their part for showing the presence of the required
intention or state of mind are not borne out from the charge-
sheet, prima facie, their constant association or support of the
organisation for a long period of time is not borne out from the
charge-sheet.”




2. It was also contended that in Vernon vs. State of Maharashtra
reported in 2023 SCC OnLine SC 885 at paragraph no. 39, the Hon’ble
Apex Court came to the same conclusion. Paragraph no. 39 is quoted
hereinbelow:
“ 39. In none of the materials which have been referred to by the
prosecution, the acts specified to in sub-clause (a) of Section
15(1) of the 1967 Act can be attributed to the appellants. Nor
there is any allegation against them which would attract sub-
clause (c) of Section 15(1) of the said statute. As regards the
acts specified in Section 15(1)(b) thereof, some of the literature
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alleged to have been recovered from the appellants, by
themselves give hint of propagation of such activities. But there
is nothing against the appellants to prima facie establish that
they had indulged in the activities which would constitute
overawing any public functionary by means of criminal force or
the show of criminal force or attempts by the appellants to do
so. Neither there is allegation against them of causing death of
any public functionary or attempt to cause death of such
functionary. Mere holding of certain literatures through which
violent acts may be propagated would not ipso facto attract the
provisions of Section 15(1)(b) of the said Act. Thus, prima facie,
in our opinion, we cannot reasonably come to a finding that
any case against the appellants under Section 15(1)(b) of the
1967 Act can be held to be true.”

3. Mr. Kabir further submitted that even assuming without admitting
that such materials were recovered from the phone of the appellant, mere
possession of such materials does not constitute any offence or indicate any
ingredient of any offence, without specific material as to any overt act that
would point towards a terrorist act in any form. The allegation of
indoctrination does not demonstrate a single action of planning, foreign
travel, taking any steps for anything that would come within the statutory
definition of ‘terrorist act’. The allegation is that the appellant was himself
radicalized by Abdul Raqib Qureshi and thereafter, he has radicalized the
key witness Farhan. What is absurd is that Farhan, whose phone allegedly
contained the purported data of images, videos etc. has been made a
witness. By virtue of the same reasoning without any admission of any sort,
the present accused could at best, equally be said to be a person radicalized
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by the co-accused. The distinction drawn by the agency is arbitrary and
unsupported by objective material.
4. Apart from the possession of purported digital materials, there is no
direct overt act or physical recovery linking the accused with the ISIS
organization in any manner or any sort. The allegation of whatsapp and
telegram chats are completely unjustified and unsupported by any evidence.
There is no material from any of these communication platforms, or any
customer subscriber details connecting the appellant with any of these
accounts or numbers or so-called alleged codes.
5. Mr. Kabir categorically stated that electronic evidence demands a
strict chain of custody including generation and preservation of hash value,
certified extraction through authorized and validated tools, maintenance of
mirror images or clones, and documentation of time, place, person and
methods of conducting extraction of data. The prosecution case does not
show whether hash values were generated and matched, whether the
extraction was conducted before a Magistrate or any authorized Officer and
whether the integrity of the device was preserved prior to analysis. In
absence of compliance of the same, the alleged material cannot be relied
upon to keep a person incarcerated.
6. Mr. Kabir has argued that the appellant was arrested on 06.01.2023
and has been in jail for more than 3 years and 10 months. The evidence of
the Investigating Agency does not generate a prima facie case and the
presumptions may only arise under Section 15 which the appellant is not
charged with. Therefore, there is no question of the presumption of
innocence having been diluted in any manner.
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7. Mr. Kabir has pointed out that so far as the appeal is concerned the
language of Section 43D (5) of UAPA Act is very different from other
stringent statutes. It says that the accused cannot be released on bail if on a
perusal of the case diary or the report made under Section 173 of the Code,
the Court is of the opinion that there are reasonable grounds for believing
that the accusation against such person is prima facie true. The law in this
statute does not say what Section 45 of the PMLA or Section 37 of NDPS Act
say in a more stringent and absolute manner that the Court must be
satisfied that there are reasonable grounds for believing that he is not guilty
of such offence and that he will not commit further offence while on bail.
8. It was also submitted by Mr. Kabir that the petitioner being an
accused has a legal right to pray for his discharge and it cannot be said as
he filed the prayer for discharge, his fundamental right under Article 21 is
diluted. As the investigation suffers from very serious anomalies, defects,
the petitioner, a youth of 28 years, may be enlarged on bail on any
condition.
9. Mr. Kabir relied on the following judgments in support of his
contention.
i. Thwaha Fasal vs. Union of India reported in (2022) 14 SCC
766
ii. Vernon vs. State of Maharashtra reported in 2023 SCC
OnLine SC 885
iii. Tasleem Ahmed vs. State, NCT of Delhi, SLP (Crl) 2867 of
2026, judgment of Hon’ble Supreme Court of India dated
22.05.2026
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iv. Syed Iftikhar Andrabi vs. NIA, SLP (Crl) 1090 of 2026,
judgment of Hon’ble Supreme Court of India dated
18.05.2026
v. Ahmed Mansoor vs. State, SLP (Crl) 198 of 2025, judgment
of Hon’ble Supreme Court dated 14.10.2025
vi. Mansur Ali@MansurSiekh @Mansur Sk@ Machuur Ali vs.
State, CRA (DB) 360 of 2025, judgment of Hon’ble Calcutta
High Court dated 05.05.2026
vii. Md. Imadul Haque vs. NIA, CRA (DB) 137 of 2025, judgment
of Hon’ble Calcutta High Court dated 26.08.2025.
viii. National Investigating Agency vs. Zahoor Ahmed Shah
Watali reported in AIR 2019 SC 1734
ix. Union of India vs. K.A. Najeeb reported in AIR 2021 SC 712
x. Sudesh Kedia vs. Union Of India reported in AIR 2021 SC
1892
xi. Kekhriesatuo Tep v. National Investigating Agency reported
in (2023) 6 SCC 58
xii. Pankaj Bansal vs. Union of India reported in 2023 INSC 866
xiii. Shoma Kanti Sen vs. State of Maharashtra reported in Air
2169
xiv. Prabir Purkayashtha vs. State (NCT of Delhi) reported in AIR
2024 SC 2967
xv. Javed Gulam Nabi Shaikh vs. State of Maharashtra reported
in (2024)9 SCC 813
xvi. Arvind Kejriwal vs. Directorate of Enforcement reported in
AIR 2024 SC 3373
xvii. Sheikh Javed Iqbal vs. State of Uttar Pradesh, Criminal
Appeal No. 2790 of 2024 (SC)
xviii. Jalaluddin Khan v. Union of India reported in AIR 2024 SC
4380
xix. Prem Prakash vs. Union of India reported in AIR 2024 SC
4286
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xx. V.Senthil Balaji v. Deputy Director, Directorate of
Enforcement reported in AIR 2024 SC 4760
xxi. Athar Parwez vs. Union of India reported in 2024 INSC 995
xxii. Subires Bhattacharya v. Central Bureau of Investigation,
CRM (DB) 173 of 2024
xxiii. Directorate of Enforcement v. Subhash Sharma reported in
2025 INSC 141
xxiv. Vihaan Kumar vs. State of Haryana reported in 2025 INSC
162
xxv. Udhaw Singh vs. Enforcement Directorate reported in 2025
INSC 247
xxvi. Somnath Banerjee vs. State of WB in CRM (DB) 62 of 2025
xxvii. Partha Chatterjee vs. Central Bureau of Investigation in
Criminal Appeal Nos. 3618-2619 of 2025 (SC)


10. Mr. Maiti, learned Senior Counsel appearing for NIA has raised
serious objection against the bail prayer. According to him the appellant is
not a passive sympathiser but an active ISIS operator involved in
recruitment and radicalisation of Muslim youths, dissemination of ISIS
propaganda, administration and use of clandestine Telegram groups for
sending recruits to Afghanistan/Khorasan for terrorist training in making
discussion with regard to target killings and attacks against identified
persons and institutions. The materials collected during investigation
establishes a strong prima facie case attracting the statutory embargo
contained in Section 43D (5) of UAPA. The extraction report from the
electronic device shows that the appellant was in communication with
entities operating from Pakistan, Saudi Arabia, Syria and other foreign
jurisdictions. It was also submitted by Mr. Maiti that the extraction report
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further establishes that the appellant was not merely in possession of
violent propaganda videos generated by the terrorist organisation ISIS but
was actively circulating such videos amongst other Muslim youths. This
conduct clearly indicates the dissemination of extremist and terrorist
propaganda with the intent to influence and radicalise others. The said
evidence is duly corroborated by the statement of the prosecution’s witness,
Farhan Javed, thereby lending substantial credibility to the prosecution
case. It was also contended that the forensic extraction from the electronic
devices clearly indicates that the instant appellant was using a virtual
phone number through internet-based communication services.
11. If the petitioner is enlarged on bail, prosecution would suffer a lot. The
forensic analysis of the electronic device establishes that the petitioner has
ISIS Association. There is evidence of recruitment of youths. The telegram
chats recovered from the appellant’s phone contain the appellant’s
connection with an ISIS network. The petitioner has a connection with
Abdul Rakib Qureshi for planning and coordination of extremist activities
etc. Investigation identified one Amina Bint Munnavar, residing in
Singapore, as a key radicaliser and administrator of ISIS-linked groups. It
was further submitted by Mr. Maiti that it is not correct that the ground of
arrest was not intimated to the petitioner. It was also denied that appellant’s
long incarceration is only due to the fault of the prosecution. The appellant’s
case is that the case against him, at the highest, would attract Sections 38
and 39 of the UAPA Act. From then, the statutory embargo under Section
43D (5) of the UAPA Act would squarely be attracted. Accordingly, Mr. Maiti
concluded his argument by stating that materials collected during
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investigation clearly establishes that the accusation against the appellant is
prima facie true. The case attracts the statutory embargo contained under
Section 43D (5) of UAPA Act and hence prayer for bail should be rejected.
12. Mr. Maiti relied on the following judgments:
i. Ram Kishor Arora vs. Directorate of Enforcement reported in
2023 INSC 1082
ii. National Investigation Agency vs. Zahoor Ahmed Shah
Watali reported in 2019(5) SCR 1060
iii.Union of India vs. K.A Najeeb 2021(1) SCR 443
iv.State of Uttar Pradesh v. Anurudh 2026 INSC 47
v.Vernon vs. The State of Maharashtra & another reported in
2023(10)SCR 867
vi.Gulfisha Fatema vs. state 2026 INSC 2
vii.Tasleem Ahmed vs. State Government of NCT of Delhi
SLP(CRL) NO. 2867/2026 with SLP(CRL) NO. 3867/2026 of
Supreme Court of India
viii.Md. Heydaitullah vs. National Investigation Agency Crl. A.
871 of 2023
ix.Mohd. Shahid Khan Vs. Union of India 2025 MPHC-JBP:257
x.Abu Samad vs National Investigation Agency CRA (DB) 276 of
2024 of High Court at Calcutta

Court’s view:-
13. The present task of this court under section 43D(5) of UAPA is to find
out whether the materials brought against the applicant by the investigating
agency is sufficient to hold at this stage that the accusation against him is
prima facie true or not.
14. The extraction reports from the mobile phones of the applicant show
that messages were exchanged in the telegram app through virtual numbers
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with persons residing outside India, and there were talks of engagement/
recruitment of Indian youth in the foreign country for militant/extremism
purposes. The chats were made from the said mobile phones showing that
the sender of messages from the said phones was also eager to make serious
militant activities by killing journalists etc in India, and he was encouraged
to do so by the aforesaid persons of foreign origin. These materials clearly
distinguish this case from Veron vs. State of Maharashtra (supra).
Therefore, the case at hand is not mere possession of literature. There are
materials to show that the applicant took an active part in collecting or
organizing or instigating youth who would take part in hijarat and jihad for
Islamic extremism. He also collected youth isthihad (suicide squad). The
above overt acts of the applicant also satisfies the condition of Thwaha
Fasal (supra) case wherein it is laid down in which cases an accused can be
said to be associated with terrorist act and organisation. Relevant excerpts
of the said case law will be profitable for our present discussion :
“ The association and the support have to be with intention of furthering
the activities of a terrorist organisation. In a given case, such intention can
be inferred from the overt acts or acts of active participation of the accused
in the activities of a terrorist organisation which are borne out from the
materials forming a part of charge-sheet”.
15. Apart from the above chats there were a huge number of videos,
pictures showing destructive, subversive activities, killing of helpless people,
beheaded bodies, training of militants and so on. The videos also show
planning to kill PM Modi and American President Donald Trump.
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16. However, para 17 of the judgment of Union of India v. K.A. Najeeb ,
(2021) 3 SCC 713 has very lucidly balanced the accused’s fundamental
right to get speedy justice with restrictions of legislative policy against bail in
the following words:
“ 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 the constitutional courts to grant bail
on grounds of violation of Part III of the Constitution.
Indeed, both the restrictions under a statute as well as the
powers exercisable under constitutional jurisdiction can be
well harmonised. Whereas at commencement of
proceedings, the 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.

17. Now, the question is when will the melting point start in a given case?
In this case a chargesheet was filed on 04.07.2023 and charge was framed
on 14.08.2025. Several witnesses were examined but cross-examination of
such witnesses were deferred by the applicant under section 231 of Cr.P.C,
presumably because that the accused did not want to disclose his defence.
During the charge hearing, the accused had the opportunity to show that
the allegations against him had no basis. After considering the materials,
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the learned trial Judge framed the charges against the accused. Even
thereafter, the accused filed a discharge application which, being rejected by
the trial judge, the present appeal was filed. Undoubtedly, the accused has
the right to file an application for discharge but knowing fully well that
disposal of such application will take some time in view of the workload of
the Courts, he filed the discharge application and consequently, the
examination of the prosecution witnesses was halted. We do not find any
intentional laches from the side of the prosecution to prolong the trial. It is
very aptly observed in the decision of Gulfisha Fatema (supra) and Tasleem
Ahmed (supra) that the delay in trial cannot be automatically attributed to
the prosecution. We have considered the entire materials on record and
found that no delay was caused from the side of the prosecution.
Furthermore, taking into account the gravity and seriousness of the
offences, nature of technical and electronic evidence, the number of 52
Chargesheet witnesses cannot be said to be excessive.
18. It is further true that before the pronouncement of the Paban Bansal
case (supra) (3/10/2023) and subsequent decisions , such as, Shoma
Kanti Sen vs. State of Maharashtra (supra) (05/04/2024), Prabir
Purkayastha vs State (NCT of Delhi)(supra) (15/05/2024) etc., the case at
hand was started (06/01/2023) and therefore, mandatory compliance for
information regarding grounds of arrest becomes a matter of academic
research and interest, so far as this case is concerned.
19. It is true that incriminating videos were found from Javed Farhan and
he has been cited as a prosecution witness. Claiming parity, Mr Kabir’s
argument was that in that situation the present petitioner who also received
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alleged videos from other sources should have been cited as Prosecution
witness. The statement of Farhan recorded under section 164 Cr.P.C shows
that he came to his aunt’s house at Howrah for higher secondary education.
During his stay at Howrah, he used to visit a nearby mosque where he got
acquainted with the applicant who appeared to be a very knowledgeable
person. The statement further shows how the incriminating materials were
sent to his phone by the applicant who told that the same were very
confidential and he was further asked to maintain secrecy. The record
reveals that Farhan was a student and came to Howrah for educational
purposes. Taking advantage of proximity, he tried to indoctrinate the Islamic
extremist ideologies and for that purpose he sent such materials to Farhan’s
phone. In our considered view, the applicant and Farhan do not stand on
the same footing. Such action of the applicant lends support to the
prosecution case that there was a continuous encouragement of the
applicant from the persons of foreign origin to collect youth from India who
will be interested in doing all these extremist operations in India and
abroad.

20. Therefore, considering all materials on record we do not find that
there was any intentional laches on the part of the prosecution to proceed
with the trial. Further, the number of 52 charge witnesses, in view of the
nature of the case, is not unreasonable. It is settled law as per decision of
Watali (supra) as well as Najeeb (supra) that at this stage the court cannot
evaluate the evidence of the parties threadbarely nor can hold a mini trial of
the case. The issues raised by the applicant cannot be decided without a
trial, at least without a mini-trial but we are not to do so. The prosecution is
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not responsible for the alleged delay. The discharge application, although
legal, consumed much time and contributed to prolonging the trial, and for
which we cannot blame the prosecution. However, we can say that the case
has not reached the melting point as indicated in K.A. Najeeb’s case
(supra) . The matter concerns security of the country. As there are sufficient
materials on record indicating the overt acts on the part of the applicant in
committing the offences that he has been charged with, we are constrained
to say that the accusation against the applicant appear to be prima facie
true at least at the present stage of the proceedings. Accordingly we are
constrained to reject the prayer for bail.
21. Thus , CRA (DB) 324 of 2025 is dismissed .
22. All parties shall act on the server copy of this order downloaded from
the official website of this Court.
23. Urgent photostat certified copies of this judgment, if applied for, be
supplied to the parties on compliance of all necessary formalities.
I Agree.


(ARIJIT BANERJEE, J.) (APURBA SINHA RAY, J.)

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