Prolonged incarceration and nature of allegations allow for bail under UAPA, balancing statutory provisions with constitutional rights.

JUDGMENT :

PRATHIBA M. SINGH, J.

1. This hearing has been done through hybrid mode.

Background

2. The present appeal has been filed by the Appellant under Section 21(4) of the National Investigation Agency, 2008 (hereinafter ‘NIA Act’) read with Section 528 of the BNSS, 2023 challenging the impugned order dated 19^th September, 2024 by which his bail application has been rejected.

3. An FIR, being RC No.06/2012/NIA/DLI, was registered by the NIA on 10^th September, 2012 at PS NIA, New Delhi for various offences under the Unlawful Activities (Prevention) Act, 1967 (hereinafter ‘UAPA’) against certain persons which did not include the Appellant herein. Thereafter, chargesheet was filed in the said FIR on 17th March 2013 which only charged five accused persons. However, when the supplementary chargesheet was filed on 20^th February, 2014, further accused persons were added including A-9 – Ujjair Ahmad @ Ozair who is the Appellant herein.

4. The Appellant was arrested on 30^th October, 2013. He was charge-sheeted under Sections 17, 18, 19, 38(2), 39(2) and 40(2) of the UAPA. The Appellant had sought regular bail before the Special NIA Court which was, however, rejected in the following terms:

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8. Till date, in the present matter, six witnesses have been examined. However, nothing has come in the evidence of these witnesses which would render substance to the contention of accused/applicant that he has been able to cross twin tests. Otherwise also, bare reading of section 43 (D) (5), shows that the opinion in respect of reasonable ground to believe that acquisition are not prima facie., true is to be formed from the perusal of case diary or the report made u/s 173 of the code. Therefore, the statute is silent on the aspect if at the time of considering the plea of bail, evidence recorded during trial is to be considered or not. However, it cannot be said that there is any ambiguity in the language used in section 43 (D) (5) of UA (P) A. Hence, when language in the concerned provision is clear and categorical, the mandate of law is also clear. Said mandate u/s 43 (D) (5) of UA (P) A is as to what material is to be considered at the time of adjudicating of application seeking bail. Thus, when the language is so clear, trial court cannot insert any other dimension to it through interpretation. Further, now the recording of evidence has begun. Bunch dates are fixed in this matter and on each date two witnesses are summoned for examination. These steps are taken as an attempt to speed up the trial.

9. Hence, in view of the above discussion, present application filed on behalf of accused/applicant Ujjair Ahmad seeking bail is hereby dismissed. Application stands disposed of accordingly. Copy dasti. Copy of order be sent to Jail Superintendent concerned to convey the decision to accused/applicant.”

Submissions

5. The submission of ld. Counsel for the Appellant is that the Appellant deserves to be granted bail on the following grounds:

i) The long period of incarceration undertaken by the Appellant since 2013 which is more than 11 years;

ii) That the other co-accused who had pleaded guilty have been either sentenced to the period already undergone or to 10 years which is much lesser than the Appellant’s period of incarceration;

6. That the allegations in the chargesheet against the Appellant are primarily two-fold that he was part of the Muslim Student Federation (MSF) which is claimed to be an off-shoot of Students Islamic Movement of India (SIMI) and secondly that he had given some amount to one Mr. Haider Ali which, according to th