JUDGMENT :

Atul Sreedharan, J.

Brief Facts

1. The present appeal has been filed by the appellant for the grant of bail. The impugned order was passed in an application moved by him before the Court of the Ld. Special Judge.

2. The learned counsel for the appellant has argued that there has been a denial of speedy trial of the appellant. She further submits that out of five accused, four have already been granted default bail under Section 167(2) of Cr.P.C.

3. Learned counsel for the appellant has taken us through the record of the proceedings/daily order sheets of the learned Trial Court from 07.07.2021 till 16.05.2023. The case was listed on twenty-eight occasions before the Trial Court after framing of charge and preparation of the trial programme. During this period, out of thirty-four prosecution witnesses only six witnesses have been examined till date. On all the occasions mentioned hereinabove, the prosecution was unable to produce witnesses, besides the six already mentioned hereinabove. On two occasions i.e. on 24.12.2021 and 22.11.2022 the case was adjourned on account of non-availability of presiding officer for which the prosecution cannot be held liable.

4. Learned counsel for the UT on the other hand submits that the present case is not a run of the mill case and relates to an attempt to commit an act of terrorism against the State and therefore assumes seriousness. In order to buttress his arguments, he has referred to Section 24 of the Unlawful Activities Prevention Act, 1967 (hereinafter referred to as The Act of 1967), which provides for witness protection. He further submits that due seriousness must be accorded to the special nature of the case before the Special Judge, and in view of the provisions of Section 44 of the Act of 1967, the argument of a delay in trial is not available to the appellant as the prosecution has to be given a sufficient leeway to produce its witnesses. He has also taken an objection with regard to the maintainability of the appeal itself in the light of the Section 21(4) of the Act of 2008 of the NIA Act and was submitting that Section 21(4) of the Act of 2008 does not provide for an appeal from an interlocutory order and as bail is an interlocutory order, this appeal is not maintainable.

5. Learned counsel appearing for the appellant has drawn attention of this court to Section 21(4) of the Act of 2008, which provides for an appeal from an order granting or rejecting the bail. Thus, the learned counsel appearing for the appellant submits that the argument of the learned counsel for the respondent as regards maintainability is misplaced and deserves to be rejected.

6. On merits, the Ld. Counsel for the UT has argued that in the course of investigation, four cartridges, one pistol, one magazine (as in a device in which cartridges are stored in a firearm) and a mobile phone was recovered from the appellant. It was also submitted that the appellant and co-accused persons were preparing for an Act of terrorism. However, when asked by this Court to place some prima facie evidence in order to satisfy the allegation that the appellant and the others were preparing for an act of terrorism, the learned counsel for the State was unable to place any prima facie material before us.

7. Heard learned counsels for the parties and perused the documents filed along with the appeal. The objection of maintainability raised by the Ld. Counsel for the UT is rejected in view of S. 21(4) of the Act of 2008.

8. It is relevant to mention here that the Ld. Counsel for the applicant has pressed for bail on the grounds of delay in trial. Therefore, this Court has to consider is if