IMPORTANT POINT
The court established that the absence of reasonable grounds for believing the accusations are true can justify the grant of bail under the UAPA, despite statutory restrictions.

JUDGMENT :

Revati Mohite Dere, J.

1. Heard.

2. Admit. Learned A.P.P waives notice on behalf of the respondent-State.

3. By this appeal, preferred under Section 21 of the National Investigation Agency Act, (‘NIA Act’), the appellant seeks quashing and setting aside of the impugned order dated 19th April 2023 passed by the learned Special Judge under MCOCA, TADA, POTA & NIA, City Civil and Sessions Court, Mumbai in Bail Application (Exhibit-18) in NIA Special Case No. 274 of 2022, by which, the appellant’s application (Exhibit-18) seeking his enlargement on bail, came to be 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.

4. Mr. Solkar, learned counsel for the appellant seeks bail on the ground of parity. He submits that similarly placed co-accused Mohammed Irfan Rehmatali Shaikh i.e. original accused no. 3 has been granted bail by this Court (Coram : Revati Mohite Dere & Gauri Godse, JJ.) vide order dated 29th August 2023. Learned counsel for the appellant submits that the appellant, a teacher was running coaching classes for students and had no knowledge that Zakir Husain (original accused no.1), an auto-rickshaw driver was involved in any terrorist activities, 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 essentially the charge against the appellant is that of harboring co-accused Zakir, which offence is punishable under Section 19 of the UAPA, where the minimum sentence is three years which may extend upto imprisonment for life.

5. Learned counsel for the appellant submits that the appellant came in contact with Zakir (accused no.1) during the lock-down, when Zakir, an auto-rickshaw driver helped the appellant in connection with his work i.e. distribution of food packages and other social work, since Zakir was plying his auto-rickshaw in the suburbs of Mumbai.

6. According to the learned counsel for the appellant, as Zakir had helped the appellant during the lock-down i.e. by assisting the appellant in distributing aid/relief to persons, the appellant in good faith permitted Zakir to stay with him, on the intervening night of 15th September 2021 to 16th September 2021 i.e. for one night. Learned counsel for the appellant submitted that Zakir had disclosed to the appellant that he had taken money from several persons and that the said persons were after him and were demanding money, pursuant to which the appellant not only permitted Zakir to stay for one night, but also destroyed Zakir’s phone on his request, as Zakir had disclosed to the appellant that he was constantly receiving calls from persons demanding money. He submits that on the request of Zakir, he destroyed Zakir’s phone.

7. Mr. Solkar further submits that certain documents were recovered at the instance of Zakir (accused no.1), i.e. Zakir’s passport etc from behind the sofa in appellant’s house where Zakir had concealed the same. He submits that the said circumstance cannot be said to be incriminating, in as much as, the appellant could have destroyed the said documents, if he knew Zakir had kept some documents there, however, the appellant had no knowledge of the same. He further submits that the CDR’s between the appellant and Zakir cannot be said to be incriminating per se, since the appellant was associated with co-accused Zakir, an auto-rickshaw driver, during the Covid time, as Zakir was regularly plying his auto-rickshaw for the appellant, in connection with the appellant’s work.

8. As far as recovery of five sim cards in closed packets is concerned, at the instance of the app