Shabbir Abubakar Shaikh @ Malbari @ Shabbir Takla @ Humnaam @ Shahid @ Shakil vs The National Investigating Agency And Anr

2026:BHC-AS:22168-DB
pmk cri-apeal-820-2025-F.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.820 OF 2025
Shabbir Abubakar Shaikh @ Malbari @ ]
Shabbir Takla @ Humnaam @ Shahid @ ]
Shakil s/o Late Abubakar Moinuddin Shaikh ]
Age: 53, Occ: Business, ]
R/at: 402, A Wing, Asmita Orient, ]
Opp- Asmita Club, Station Road, ]
Mira Road (E), Mumbai – 401 107 ]
(Presently lodged in Arthur Road Jail ] … Appellant
V/s.
1. The National Investigating Agency, ]
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7 Floor, MTNL Telephone Exchange, ]
Building, Cumballa Hill, Pedder Road, ]
Mumbai – 400 026 ] … Respondent No.1
2. The State of Maharashtra ] … Respondent No.2

Mr. Sandeep Karnik a/w Mr. Darsh Gala, Mr. Vivek Upadhyay i/by Mr.
Vishwajeet Nimbalkar for the Appellant.
Mr. Anil C. Singh, The Additional Solicitor General of India a/w Mr. Chintan
Shah, Special PP, Mr. Prasanna Bhangale, Mr. Krishnakant Deshmukh, Mr.
Rajdatt Nagr for Respondent-U.O.I.
Ms. Prajakta P. Shinde, APP for the Respondent-State.
Mr. Sashikant Singh, PI, NIA Mumbai, Present.
Ms. Shipra Singh, PI NIA Mumbai, Present.
Mr. Pravin Ingawale, SP, NIA, Mumbai, Present.

CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
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RESERVED ON : 13 March, 2026.
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PRONOUNCED ON : 15 April, 2026.
Digitally
signed by
SUMEDH
NAMDEO
SONAWANE
Date:
2026.05.08
18:43:07
+0530
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SUMEDH
NAMDEO
SONAWANE
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JUDGMENT (PER : KAMAL KHATA, J.) :-
1) By this Appeal, the Appellant seeks to quash and set aside the
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Order dated 5 December, 2024 passed by the Hon’ble Special (Spl)
National Investigating Agency (NIA) Court in NIA Spl Case No.1409 of
2022. Consequently, the Appellant seeks his release on bail in NIA Spl Case
No.1409 of 2022, on such terms and conditions that the Hon’ble Court may
deem fit and proper.
Prosecution’s Case:
2) Between 2008 and 2018, acting on instructions of the head of
D-Company, the Appellant allegedly threatened and extorted approximately
Rs.16 crores from PW-4.
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2.1) On 3 February, 2022, the NIA registered an FIR bearing
No.RC–01/2022/NIA/Mum for offences punishable under Sections 17, 18,
20, 21, 38 and 40 of the Unlawful Activities (Prevention) Act, 1967 (UAPA),
read with Section 201, 387 and 120B of the Indian Penal Code, 1860 (IPC)
along with Section 3(1)(ii), 3(2), 3(4) and 3(5) of the Maharashtra Control
of Organized Crime Act, 1999 (MCOC Act) on the basis of reliable
information received from the Ministry of Home Affairs, Delhi, against the
D-Company allegedly headed by Dawood Ibrahim Kaskar.
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2.2) On 29 April, 2022, the Appellant allegedly received Rs.25
lakhs from a hawala operator in Malad, Mumbai, pursuant to instructions of
Accused No.1, Mr. Arif Shaikh. The prosecution alleges that this Rs.25 lakhs
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constituted proceeds of terrorism, intended for furthering terrorist activities
and larger conspiratorial acts in Mumbai. Out of this amount, Rs.20 lakhs
was allegedly handed over to Arif Shaikh, while Rs.5 lakhs was retained by
the Appellant.
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2.3) During a house search on 9 May, 2022, the investigating
agency allegedly recovered and seized Rs.5 lakhs from the Appellant’s
residence. A signal/blank pistol, resembling a real firearm, was also
allegedly recovered from the Appellant’s residence and is claimed to have
been used for threats and extortion for the benefit of D-Company. The
search was conducted at the premise of the Appellant under Section 165 of
the Code of Criminal Procedure, 1973 (CrPC). The Appellant came to be
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arrested on 12 May, 2022 at the behest of Respondent No. 1.
3) The first bail application of the Appellant came to be rejected
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by the Special Court by an Order dated 21 July, 2022, principally on the
ground that the investigation was incomplete and that there existed a
possibility of Appellant tampering with prosecution's evidence and
influencing witness, thereby impeding the filing of the charge-sheet against
the Appellant. Thereafter, the second bail application was also rejected by
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the learned Spl. Judge, NIA by an Order dated 5 December, 2024. Being
aggrieved thereby, the present Appeal has been preferred.
4) Mr. Karnik, learned Advocate for the Appellant, submitted that,
the Appellant is innocent and has been falsely implicated in the present
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case. According to him, the Appellant is a businessman engaged in property
dealings for several years. In so far as the statement of PW-2, PW-6 and PW-
11 pertaining to the alleged transaction of Rs. 25 lakhs in April 2022, is
concerned, Rs. 5 lakhs recovered was reserved for carrying out business
purposes and for ‘jakat’ and not for funding terrorism or terrorist activities.
According to him, the evidence placed on record does not establish that the
Appellant had knowledge that the said amount was to be used for terrorist
acts, which is a sine qua non under Section 17 of the UAPA. It is further
contended that, the statements, narrations, discussions and disclosures of
PW-2, PW-4, PW-5, PW-6 and PW-11 pertain to the alleged transactions
committed between the years 1999 to 2019 and therefore, are not relevant.
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4.1) It is submitted that, the search at the Appellant’s house on 9
May, 2022 was in absolute contravention of Section 165(1) of the CrPC.
The search report, according to him, clearly indicates that no arms,
ammunitions, explosives or any material ordinarily associated with terrorist
activities were recovered. The only article found was a signal / blank pistol,
which, according to him, does not qualify as a “firearm” within the meaning
of the Arms Act, 1959. He, therefore, submits that no offence under the
Arms Act could be sustained against him.
4.2) He submits that the learned Special Judge NIA, Court, failed to
consider that the FIR does not disclose any specific anti-national activity or
incident, nor does it contain any particular allegation against the Appellant.
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He further contends that Dawood Ibrahim Kaskar has been designated as a
terrorist in his individual capacity and not as a member of any gang.
4.3) Learned Advocate further submitted that, the provisions of
UAPA would be attracted only after the inclusion of the names of Dawood
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Ibrahim Kaskar and Chhota Shakil in the Fourth (4 ) Schedule as members
of a terrorist organization under Section 2(1) (m) of UAPA, and any alleged
acts prior thereto would not fall within its ambit in view of Section 35(1) of
the Act.
4.4) The learned Advocate submitted that, the substratum of the
F.I.R. is an allegation that members of D-Company were planning either to
instigate or trigger incidents of violence across various parts of India,
including Mumbai, major cities and the National Capital Region. However,
according to him, there is no material on record to substantiate any such
imminent or concrete plan. It is, therefore, submitted that, there was
absolutely no material on record produced by the prosecution that was
sufficient to invoke the rigors envisaged under the provisions of the MCOC
Act.
4.5) Mr. Karnik further submitted that, the Appellant is behind bars
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since 12 May, 2022 i.e. for over two years and eight months, and the
charges are yet to be framed. He further contended that, the charge-sheet
runs into more than 8,000 pages. Consequently, relying upon the
observations made by the Hon’ble Supreme Court in cases of (i) Jalaluddin
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Khan vs. Union of India (2024) 10 SCC 574, (ii) Union of India vs. K. A.
Najeeb (2021) 3 SCC 713, (iii) V. Senthil Balaji vs. Directorate of
Enforcement (2024) SCC OnLine 2626 and (iv) Athar Parwez v. Union of
India (2024) 20 SCC 57, it is contended that the Appellant is entitled to be
released on bail.
4.6) Learned Advocate submitted that the bar contained in Section
43-D (5) of UAPA and Section 21(4)(b) of MCOC Act, has been incorrectly
applied, and that the Appellant is entitled to be enlarged on bail.
5) Mr. Anil Singh, the learned Additional Solicitor General (ASG)
representing the Respondent – Union of India, submitted that Dawood
Ibrahim (wanted accused No. 1) and Chhota Shakil (wanted accused No. 2)
are absconding and continue to operate from abroad. He submitted that, by
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an order dated 3 February 2022, the Ministry of Home Affairs,
Government of India, directed the NIA to investigate the offences involving
certain proscribed organizations, namely “Lashkar e Taiba”, “Jaish-e-
Mohammad” and “AI-Qaida”, which are included in the First Schedule to
the UAPA.
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5.1) He submitted that, on 2 November, 2022, the NIA sought
sanction of the Central Government under Section 45(1) of the UAPA to
prosecute all the accused persons, including the Appellant, who is shown at
Serial No. 2 in the sanction proposal. The said communication also referred
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to an Order dated 9 October, 2022 passed under Section 23(2) of the
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MCOC Act. According to him, these steps were taken on the basis of
confidential information received from the Central Government and the
material disclosed through statements of protected witnesses, which
indicated that the Appellant was acting at the behest of the wanted
accused.
5.2) Learned ASG submitted that, during the course of
investigation, and upon scrutiny of the material and documents seized from
the house, office and shop of accused No. 3, it was revealed that, under the
leadership of Dawood Ibrahim (wanted accused No. 1) and Chhota Shakil
(wanted accused No.2) the accused persons were engaged in raising,
collecting and channelizing funds for commission of terrorist acts, as well as
in extorting money from Indian based businessmen, builders and other
individuals by putting them and their families in fear of death, thereby
spreading terror amongst the people. It was further submitted that the
signal or blank pistol recovered from the house of the Appellant (accused
No.2), which closely resembled a real firearm, was deliberately kept for the
purpose of intimidation and extortion. It was also contended that, with a
view to obliterate incriminating material, including data, communication,
the Appellant had formatted his mobile phone and destroyed the SIM card
in order to evade detection and conceal his association with the wanted
accused Nos.1 & 2.
5.3) Mr. Singh, then drew our attention to the various statements
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recorded during the course of investigation to demonstrate the involvement
of the Appellant in the alleged activities, and to contend that the amount
recovered from his possession formed part of the funds intended to support
the nefarious activities.
5.4) He further invited our attention to the reply filed by the NIA on
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26 June, 2025. It was submitted that the Appellant had amassed
substantial funds which were collected at the instance of the wanted
accused Nos.1 and 2, who are stated to be operating from Pakistan.
5.5) Mr. Singh relied upon the following Judgments in support of
his contentions:
(a) Zakir Abdul Mirajkar vs. State of Maharashtra reported
in (2023) 20 SCC 408 ( 87 & 88) ;
(b) Gulfisha Fatima vs. State(Govt. of NCT of Delhi) reported
in (2026) SCC OnLine SC 10 (41 to 58, 61, 71, 78-82,
426);
(c) National Investigation Agency vs. Zahoor Ahmad Shah
Watali reported in (2019) 5 SCC 1 (paragraphs 23 and
24);
(d) Gurwinder Singh vs. State of Punjab & Anr. Reported in
(2024) 5 SCC 403 (44 to 48);
For all the aforesaid reasons, Mr. Singh submitted that the bail to the
Appellant deserves to be rejected.
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6) We have heard Mr. Karnik for the accused and the learned ASG
Mr. Anil Singh for the Respondent and perused the record carefully.
7) The undisputed fact that, certain electronic evidence was
destroyed by the accused-Appellant lends support to the prosecution case
and lends support regarding the Appellant’s involvement in the alleged
crime. Having regard to the nature and gravity of the offences, the burden
lay upon the Appellant to make out a case for grant of bail. In our
considered view, the Appellant has failed to do so.
8) In National Investigation Agency v. Zahoor Ahmed Shah Watali
(supra), the Supreme Court, upon considering earlier decisions including
Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra (2005) 5 SCC
299, particularly, paragraphs 36, 37, 38, 44, 45 and 46, Kalyan Chandra
Sarkar v. Rajesh Ranjan (2004) 7 SCC 528 particularly, Paragraph 18 and
Jayandra Saraswathi Swamigal v. State of Tamil Nadu (2005) 2 SCC 13
particularly, paragraph 16 held that the exercise to be undertaken by the
Court at the stage of grant or non-grant of bail is markedly different from
discussing merits or demerits of evidence. The Court is not required to
undertake a meticulous examination of the evidence but is expected to form
a view, on broad probabilities, as to whether the accusations are prima facie
true.
9) In Gulfisha Fatima Vs. State(Government of NCT of Delhi)
(supra)particularly, paragraphs 41, 58, 61, 71, 78 to 82 and 426 the
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Supreme Court elaborated upon the scope of Section 43-D(5) of the UAPA
and held that it operates as a gatekeeping provision requiring a focused and
disciplined enquiry confined to whether the prosecution material, taken at
its highest, satisfies the statutory threshold of prima facie truth. The Court
emphasized that the provision requires neither mechanical denial nor
casual grant of bail, but a principled application of the statutory standard
within its clearly defined limits. It laid down guidelines for the correct
application of section 43D (5) as under:
i. whether the prosecution material, accepted as it
stands, discloses a prima facie case satisfying the
statutory ingredients of the offence alleged;
ii. whether the role attributed to the accused reflects a
real and meaningful nexus to the unlawful activity or
terrorist activity proscribed under the Act, as
distinguished from mere association or peripheral
presence; and
iii. whether the statutory threshold is crossed qua the
individual accused, without embarking upon an
assessment reserved after full-fledged trial.”
10) The Supreme Court further observed that, where the aforesaid
requirements are satisfied, the statutory embargo on the grant of bail must
operate with full force; conversely, where they are not, the embargo stands
lifted. While recognizing the fundamental importance of personal liberty
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under Article 21 of the Constitution, the Court also emphasized that such
liberty cannot be viewed in isolation from the competing considerations of
public order, the integrity of the trial process, and the security of the
community. Where the material on record, taken at face value, discloses
reasonable grounds for believing the accusation to be prima facie true, the
statutory restraint must ordinarily prevail.
11) In Gurvinder Singh v. State of Punjab and Anr. (supra)
(paragraph 44 to 48), the Supreme Court distinguished K. A. Najeeb
(supra) and held that, mere delay in trial, particularly in cases involving
grave offences, cannot by itself be a ground to grant bail. It was observed
that where the material available on record indicates involvement in
terrorist activities, and where there exists likelihood of influencing
witnesses, the grant of bail would seriously prejudice the administration of
justice.
12) In Zakir Abdul Mirajkar vs. State of Maharashtra & Ors.
(supra) referring to the decision in Govind Sakharam Ubhe v. State of
Maharashtra (2009) SCC OnLine Bom 770, it was held that for the purposes
of the MCOC Act, it is not necessary that multiple charge-sheets be filed
against an individual accused; charge-sheets pertaining to the organized
crime syndicate would suffice to meet the requirement under Section 2(1)
(d).
13) In the present case, what is important is the nexus or the link
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between the Appellant and the organized crime syndicate. The existence of
such link with the organized crime syndicate constitutes the essence of
“continuing unlawful activity”. Upon consideration of the material placed
on record, we are satisfied that such a nexus between the Appellant and the
organized crime syndicate is prima facie established.
14) In our view the various statements recorded during the course
of investigation prima facie indicate a link between the Appellant and the
wanted accused, Chhota Shakil. The recovery of Rs 5 lakhs from the
Appellant’s residence, along with a blank pistol, lends corroboration to the
prosecution’s case. Further, the destruction of the SIM card and the
formatting of the mobile phone further support the inference that the
Appellant was engaged in unlawful activities.
15) In our view, there is sufficient material against the Appellant
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and we find no reason to interfere with the Order dated 5 December, 2024
passed by the Hon’ble Spl Judge NIA. We are also of the view that, if
released on bail, there exist a likelihood of the Appellant tampering with
prosecution’s evidence and influencing witnesses as well as fleeing from
India thereby frustrating the investigation and the trial.
16) We are not persuaded by the Appellant’s explanation that the
blank pistol was kept for self-defence. If the Appellant, as a businessman,
genuinely perceived any threat to his life or property, he could have applied
for a licensed firearm in accordance with law to the competent Authority.
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The possession of a blank pistol, in the facts of the present case, gives rise
to a reasonable inference that it was intended to be used for issuing threats.
Similarly, the explanation that the recovered amount was kept aside for
“jakat” or business purposes is unsupported by any material, apart from a
bald assertion. We are, therefore, unable to accept the said explanation.
17) Upon an overall consideration of the material placed before us,
we find that the accusations against the Appellant are prima facie true.
Consequently, the Appellant is not entitled to be released on bail.
18) We are of the opinion that, the trial Court has not committed
any error while passing the impugned Order. In view of the above, Appeal is
accordingly dismissed.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
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