Point of Law: Using as genuine a forged document or electronic record - Bail granted - Clause (b) of section 21(4) of MCOC Act it becomes evident that it contains an interdict against grant of bail unless Court satisfies itself that there are reasonable grounds for believing that accused is ‘not guilty of such offence’ and that accused is ‘not likely to commit any offence while on bail.

JUDGMENT :

N.J. JAMADAR, J.

1. This appeal under section 21 of the National Investigation Agency Act, 2008 (NIA Act) is directed against an order dated 27th May, 2019 passed by the learned Special Judge on an application (Exhibit 141) in NIA Special Case No. 3 of 2018, preferred by the appellant-original accused No. 3 for enlarging him on bail, whereby the said application for bail came to be rejected.

2. The background facts leading to this appeal can be stated in brief as under:

The appellant has been arraigned as accused No. 3 in RC No. 03/2016/NIA/MUM registered by NIA for the offences punishable under section 120B and 471 of Indian Penal Code and sections 13, 16, 18, 18B, 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 (UAPA) and section 4, 5 and 6 of the Explosives Substances Act, 1908 (the Explosives Act). Initially, the accused No. 3 was arrested by ATS, Kalachowki police station on 7th August, 2016 in C.R. No. 8 of 2016. Charge sheet was filed by ATS on 7th October, 2016. Upon transfer of investigation to NIA, the later re-registered the crime as RC-03/2016/NIA/MUM and, post further investigation, filed supplementary charge sheet on 17th July, 2019.

3. The gravamen of indictment against the accused is that accused No. 1 namely Naserbin Abubaker Yafai (Chaus) has been in contact with the members of Islamic State/Islamic State of Iraq and Levant (ISIL)/Islamic State of Iraq and Syria/Daish, a terrorist organization, which has been banned by the Government of India vide notification K.A. 534(A) on 16th February, 2015. Accused No. 1 Naserbin Abubaker Yafai (Chaus) and No. 2 Mohd Shahed Khan procured material to prepare an IED. The appellant/accused No. 3 was a co-conspirator with the co-accused. Pursuant to disclosure made by the co-accused the electric switch board whereon the IED was soldered in the house of appellant/accused No. 3 was discovered. Likewise, the oath (baith) owing allegiance to banned terrorist organization was recovered from the house of accused No. 3. The accused have thus been arraigned for the offences punishable under section 120B of Indian Penal Code and section 13, 16, 18, 18B, 20, 38 and 39 of UAPA and section 4, 5 and 6 of the Explosives Act.

4. In the backdrop of the aforesaid nature of the accusations, the learned Special Judge was persuaded to reject the prayer for release on bail. The fact that the oath (baith) was recovered from the house of the accused No. 3 in pursuance of the discovery made by the co-accused, the discovery of the use of electric switch board to facilitate the preparation of the bomb, the procurement of the sim card by making use of false documents and the statement of the witnesses recorded during the course investigation which indicated that the accused, including accused No. 3, used to assemble at Mumtaz Nagar, opposite Mohamadiya Masjid, Parbhani and provoked each other to perpetrate unlawful activities weighed with the learned special Judge to reject the prayer for release on bail. Hence, the accused No. 3 is in appeal.

5. An affidavit is filed by Mr. Vikram M. Khalate, S.P. IPS, NIA, on behalf of NIA, in opposition of the prayer for bail.

6. Appeal is admitted and, with the consent of counsels for the parties, taken up for final disposal.

7. We have heard Mr. Mihir Desai, learned senior advocate for the appellant and Mrs. A.S. Pai, learned Special Public Prosecutor for respondent-NIA. With the assistance of the learned counsel for the parties, we have perused the material on record including the documents and statements of protected witnesses, copies of which were tendered by the learned PP, which according to the prosecution shed light on role attributed to the appellant/accused No. 3 and incriminate him.

8. Mr. Mihir Desai, learned senior counsel would urge that the learned special Judge committed a manifest error in negativing the prayer for bail. According to Mr. Mihir Desai, the learned special Judge fell in error in not properly appreciating the role attribu