JUDGMENT

Ashwani Kumar Singh, J. - Heard Mr. Manish Kumar, learned counsel for the appellant and Mr. Manoj Kumar Singh, learned counsel for the National Investigating Agency.

2. This appeal under Section 21(4) of the Nation Investigation Agency Act, 2008 has been preferred by the appellant for setting aside the order dated 28.01.2021 passed by the learned Special Judge, National Investigating Agency, Patna in Special Case No.02/2019 arising out of RC Case No.05/ 2019, CIS No.02/2019 whereby the prayer for grant of bail of the appellant was rejected.

3. Initially, on the basis of self-statement of a Sub-Inspector of Police, Vijay Kumar Yadav, a first information report (for short 'FIR') was registered vide Baisi P.S. Case No.35 of 2019 dated 07.02.2019 under Sections 414 of the Indian Penal Code (for short 'IPC'), 25(1-B)(a), 26 and 35 of the Arms Act against accused persons, namely, Suraj, V. R. Kahorangam, Clearson Kabo, Mukesh Singh, Santosh Singh and other unknown persons.

4. During investigation of the case, the Central Government received information about Baisi P.S. Case No.35 of 2019. It also received information regarding interdiction of sophisticated weapons by the Bihar Police including Under Barrel Grenade Launchers and a large number of 9.96 mm ammunition being allegedly smuggled from across Myanmar Border with the help of some Naga undergrounds to be supplied to Maoists and gangsters in the country with the objective of committing terrorist act.

5. In view of the gravity of the offence and its interstate and international linkages, the Ministry of Home Affairs, Government of India issued orders in exercise of powers vested under Section 6(5) read with Section 8 of the National Investigating Agency, 2008 on 26.02.2019 directing the National Investigating Agency to take up investigation of Baisi P.S. Case No.35 of 2019 and re-register a case into the matter. Accordingly, RC Case No.5/2019/NIA-DLI was registered at P.S.-New Delhi on 28.02.2019 under Sections 414, 467, 468, 471 & 474 of the IPC, 25(1)(a), 25(1A), 25(1AA), 25(1-B)(a), 26, 29 and 35 of the Arms Act and 16, 17, 18, 18B and 19 of the Unlawful Activities (Prevention) Act, 1967 against the aforesaid accused and other unknown persons.

6. During investigation of the case, complicity of the appellant was found in the commission of the offence. He was arrested by the National Investigating Agency on 18.02.2019. Since then he is in jail. The National Investigating Agency completed the investigation of the case and submitted a report under Section 173(2) of the Code of Criminal Procedure (for short 'CrPC') in the court of Special Judge, National Investigation Agency, Patna, Bihar vide charge-sheet No.21 of 2019 dated 03.08.2019.

7. The appellant moved for grant of bail before the learned Special Judge, National Investigating Agency, Patna which had been rejected by the impugned order dated 28.01.2021.

8. Assailing the impugned order, Mr. Manish Kumar, learned counsel for the appellant submitted that the appellant is a businessman and is not involved in any manner in the alleged offence. He submitted that due to mistake of fact, he has been sent up for trial. He contended that the learned Special Judge failed to appreciate that the appellant is not named in the FIR and his name has been dragged only for the reason that he has issued a cheque in the name of Sumant Kumar which does not constitute any offence against him. According to him, there is no material to show the complicity of the appellant in the present case. Neither any arm nor any ammunition has been seized from his possession. He submitted that in absence of recovery of any incriminating article, his continued detention in custody is bad in law. He argued that name of the appellant transpired in the confessional statement of co-accused which has got no evidentiary value in the eyes of law. He submitted that the court below failed to appreciate that the appellant is a contractor and he makes payment to the suppl