IMPORTANT POINTS
(1) Bail – Bail jurisprudence mandates assessment of individual role and parity cannot be claimed mechanically.
(2) Fundamental right of a citizen under Article 21 of Constitution overrides statutory restriction on grant of bail under Section 43D(5) of UA(P) Act.

JUDGMENT

Arijit Banerjee, J.—The appellant renews his prayer for bail which was earlier rejected by this Court on March 17, 2025.

2. The appellant says that he is in custody for two years eight months. Only one out of 102 prosecution witnesses has been examined till date and that too, in part. All the other accused persons are on bail. The petitioner stands on the same footing or better footing than those persons.

3. The prosecution claims that the appellant along with 6 other persons were involved in mass scale manufacture of bombs in aid of terrorist activities. Out of the 7 accused persons, one person died due to a bomb blast in the process of manufacturing bombs. Charge sheet has been filed under various provisions of IPC, Explosive Substances Act, 1908 and Unlawful Activities (Prevention) Act, 1967 UA(P) Act.

4. Learned Senior Counsel representing National Investigation Agency (NIA) strongly opposes the prayer for bail. He says that the charges are serious. The unlawful activities that the accused persons were indulging in is against the interest of national security. Section 43D (5) of the UA(P) Act is a bar to grant of bail.

5. It is submitted that for unavoidable reasons on a few occasions the prosecution had to seek adjournment before the Trial Court. There is no intentional or deliberate delay in proceeding with the trial. 102 witnesses will definitely not be examined. The number will be pruned down. The trial will definitely conclude within 10 months. The bail prayer should not be allowed. In any event, the prosecution should be permitted to examine the six protected witnesses before this Court may consider granting bail to the petitioner.

6. Learned Counsel for NIA relied on the decision of the Hon’ble Supreme Court in the case of Gulfisha Fatima v. State (Govt. of NCT of Delhi), reported at 2026 INSC 2.

7. Having considered the rival contentions of the parties, we are inclined to allow this appeal for the following reasons: -

(i) From the charge sheet filed by NIA we find that the charges brought against all the six accused persons who are facing trial are similar. In fact, the charges against accused no. 1 (Imdadul Hoque @ Imdarul Hoque @ Anaj Master) are under sections 120(B), 201 and 304 of IPC, Sections 4, 5 and 6 of Explosive Substances Act, 1908 and Section 18 of UA(P) Act, 1967. The charges against the appellant are under identical provisions of law.

(ii) All the other accused persons including Imdadul Hoque, are on bail. While Imdadul has been granted bail by this Court, the other accused persons being Sukchand Ali, Mansur Ali, Masadul Hoque, Habibur Rahaman and Md Tahabul Sk were enlarged on bail by the learned Trial Court.

(iii) In the charge sheet NIA has described Imdadul as the main conspirator. It is alleged that he criminally conspired with the co-accused persons. The present petitioner has been described as a co-conspirator. Therefore, if Imdadul has been granted bail, there can be no legitimate reason to deny such privilege to the present petitioner.

(iv) It is not in dispute that there are 102 charge sheet named witnesses. It is also an admitted position that only one prosecution witness has been examined till date and that too, in part. Although learned Advocate for NIA wants us to believe that the trial will conclude within ten months, we are unable to attach much credence to such submission. Going by the fact that over the last eight months only one prosecution witness has been examined in part, it is highly improbable that even by pruning down the number of witnesses from 102, the prosecution will be able to conclude the trial within ten months or even one year.

(v) We see that charge was framed on July 14, 2025. Thereafter, on August 11, 2025, September 3, 2025 and September 9, 2025, the matter had to be adjourned either because the presiding officer was busy with other work or he was absent or the NIA sought adjournment. September 11, 2025, was fixed for recording evidence. On the