JUDGMENT :

Sanjay K. Agrawal, J.

1. This appeal under Section 21(4) of National Investigation Agency Act, 2008 has been preferred by the appellant herein feeling aggrieved and dissatisfied with the order dated 04/10/2021 passed by Special Judge, NIA Act, Dantewada in Sessions Trial No. 112/2021 by which the second bail application filed by the appellant under Section 439 of CrPC has been rejected.

2. Mr. Kishore Narayan, learned counsel for the appellant, would submit that learned Special Judge is absolutely unjustified in rejecting appellant's bail application ignoring the fact that he is in jail since 18/07/2019 and two star prosecution witnesses namely Yogesh Girijogi (P.W.­1) and Sanjay Yadav (P.W.­2), both have been examined on 25/11/2021 and 26/11/2021, respectively and they have turned hostile and have not examined the case of the prosecution. He would further submit that in view of the decision rendered by the Supreme Court in the matter of Union of India v. K.A. Najeeb, (2021) 3 SCC 713, delay in trial is a valid ground to grant bail and the bar of Section 43­D(5) of the Unlawful Activities (Prevention) Act, 1967 would not apply, therefore, the appellant is entitled to be released on bail.

3. On the other hand, Mr. Sunil Otwani, learned Additional Advocate General, appearing on behalf of the respondent/State would submit that since charges have been framed against the appellant and his first bail application has been rejected on merits vide order dated 20/02/2020 against which he preferred Criminal Appeal No. 602/2020 before this Court and it has also been dismissed on merits vide order dated 11/01/2021, in view of the decision rendered by the Supreme Court in the matter of National Investigation Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 a prima facie case is made out against the appellant for denying bail. He would further submit that though two prosecution witnesses have been examined and they have turned hostile, but they have been examined after the first bail application filed by the appellant was rejected. Therefore, since this ground was not taken before the Court of learned Special Judge (NIA Act), it may not be considered by this Court. Even otherwise, merit of evidence of the witnesses should not be considered at the time of grant or non­grant of bail as held by the Supreme Court in Zahoor Ahmad Shah Watali (supra), as such, the instant appeal deserves to be dismissed.

4. We have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection.

5. Admittedly and undisputedly, appellant's first bail application has been rejected by the Special Judge on merits vide order dated 20/02/2020 against which he preferred Criminal Appeal No. 602/2020 which has also been dismissed by this Court on merits vide order dated 11/01/2021. When the second bail application was preferred by the appellant, there was no change in circumstances and it has also been dismissed vide order impugned dated 04/10/2021. Now, two prosecution witnesses namely Yogesh Girijogi (P.W.­1) and Sanjay Yadav (P.W.­2) have been examined on 25/11/2021 and 26/11/2021, respectively and they have turned hostile and have not supported the case of the prosecution.

6. In the matter of Zahoor Ahmad Shah Watali (supra), their Lordships of the Supreme Court have observed that the elaborate examination or dissection of the evidence is not required to be done at the stage of grant or non­grant of bail and held as under :­

“24. A priori, the exercise to be undertaken by the Court at this stage – of giving reasons for grant or non­grant of bail – is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or