The length of incarceration and unlikelihood of trial completion can be considered in granting bail under UAPA.

JUDGMENT :

Revati Mohite Dere, J.

1. Heard learned counsel for the parties.

2. Admit. Learned APP waives notice on behalf of the respondent –State.

3. With the consent of the parties, the appeal is taken up for final disposal, forthwith.

4. By this appeal, the appellant seeks quashing and setting aside of the impugned order dated 4th October 2021, passed by the learned District Judge-2 and Additional Sessions Judge, Nashik, by which, the learned Judge was pleased to reject the appellant’s bail application (Exhibit 406) filed in Sessions Case No. 192 of 2010 and as such, seeks the appellant’s release on bail.

5. Mr. Solkar, learned counsel for the appellant argued for release of the appellant on bail, both, on merits as well as long incarceration. As far as merits are concerned, he submitted that the prosecution has relied on two witnesses’ statements dated 24th September 2010 and 3rd October 2010. He submitted that both the said witnesses’ statements were recorded a few days prior to the appellant’s arrest and that the said witnesses have disclosed about an incident i.e. an alleged meeting which had taken place 4 years prior i.e. in December 2006. He has stated that it is alleged by the said two witnesses that the appellant incited and instigated them to go to Pakistan for Hijrat i.e. training for Jihad. He further submitted that post December 2006, there is no evidence on record to show that the said witnesses went pursuant to the said incitement/instigation or that the appellant was involved in the present case, post the alleged meeting of December 2006. He submitted that the alleged incident is of December 2006 and Lashkar-E-Taiba (‘LET’) was declared as a terrorist organization on 31st December 2008 and as such, the Unlawful Activities (Prevention) Act, 1967 ('UAPA') will not apply. He further submitted that for both the sections i.e. Section 18 and 18B of the UAPA, the minimum sentence is 5 years, going upto imprisonment for life. Mr. Solkar submitted that the appellant is in custody for 13 years 2 months and that 30 more witnesses are yet to be examined and as such, the trial is not likely to be over in the immediate near future.

6. Mr. Solkar relied on Union of India v. K.A. Najeeb, 2021 SCC OnLine SC 50; Jahir Hak v. The State of Rajasthan, Cri. Appeal No. 605/2022 (Arising out of SLP (Crl.) No. 7003/2021; Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya v. National Investigation Agency, (2022) 1 SCC 695; Chandeep Singh @ Gabbar Singh v. National Investigation Agency, 2023:PHHC:118039-DB; Yedala Subba Rao & Anr. v. Union of India, (2023) 6 SCC 65; Yasir Sayyed Anis Sayyed @ Hujefa v. The State of Maharashtra, 2014 ALL MR (Cri) 4205; Vernon v. The State of Maharashtra & Anr., 2023 ALL SCR (OnLine) 610; National Investigation Agency, Ministry of Home Affairs, Government of India v. Areeb Ejaz Majeed, 2021 SCC OnLine Bom 239 in support of his submission i.e. for bail on the ground of long incarceration.

7. Learned APP opposes the appeal. She submitted that there are two statements of witnesses with respect to the meeting dated December 2006, in which the appellant incited/instigated the witnesses including co-accused No.1 - Shaikh Lal Baba to go to Pakistan for Jihad. A photograph of 2003 was also relied upon by the learned APP, wherein the appellant is seen with the other co-accused. Learned APP, however, does not dispute the fact that the appellant is in custody for more than 13 years and that 30 more witnesses are yet to be examined by the prosecution.

8. Perused the papers. The appellant along with other co-accused was arrested in connection with C.R. No.21 of 2010 registered with the ATS Mumbai, for the alleged offences punishable under Sections 419, 420, 465, 467, 468, 471, 153A, 109 and 120B r/w 34 of the Indian Penal Code; Sections 4, 5 and 6 of the Explosive Substances Act and Sections 10, 13, 15, 16, 18, 18A, 18B and 20 of the Unlawful Activities (Prevention) Act, 1967 ('UA