The main legal point established in the judgment is the interpretation of Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967, and its application in granting bail to the accused during the pendency of the trial.

JUDGMENT :

G.S. Sandhawalia, J.

1. The present appeal filed under Section 21 (4) of the National Investigation Agency Act, 2008 (for short 2008 Act') is directed against the order dated 04.02.2021 passed by the Special Judge, NIA, SAS Nagar, Mohali, whereby the bail application of the appellant was dismissed in FIR No. RC- 20/2019/NIA/DLI dated 23.09.2019 {arising out of FIR No.280 dated 05.09.2019 under Section 304 IPC and Sections 4 & 5 of the Explosive Substances Act, 1908 (for short 1908 Act') lodged at Police Station Sadar, Tarn Taran}.

2. The reason as such for the Special Judge to dismiss the bail application, though the name of the applicant was not found in the FIR, but during the course of investigation, as per the case of the prosecution it has come on record that the appellant Amarjeet Singh @ Amar Singh was associated with the pro-Khalistan terrorist gang to support Khalistan movement. On account of his close association with co-accused persons, he had advocated/abetted/advised/incited the commission of terrorist offences and was also associated with the co-accused persons in testing bombs. The prosecution had collected incriminating material during the screening of the digital data of his mobile phone and status of Whatsapp account showing the accused's ideology towards Khalistan state. His association with the other arrested persons, thus established his nefarious intention and pro-Khalistan activities and, therefore, in the absence of any ground for believing that accusation of the appellant is prima facie false, the bail application was dismissed.

3. Mr. Pratham Sethi, Advocate for the appellant has taken us thoroughly through the paper-book and the relevant provisions of the concerned Acts, to argue that it was a case of bail and his client was in custody since 15.09.2019. It was his argument that the appellant had been arrested on 15.09.2019 by the Punjab Police alongwith other co-accused on the basis of secret information received. Thereafter, a disclosure statement dated 21.10.2019 (Annexure A-7) was taken from him that he alongwith co-accused Malkit Singh @ Sher Singh (A-5) had tested a Improvised Explosive Device (IED) in the year 2016 in the month of October/November, near the Fatehgarh Churian Canal, when the said Malkit Singh had come to his house and taken him there. The co-accused Malkit Singh who has admittedly expired on 04.10.2021 during the trial had alleged to have gone 50 feet away from the motorcycle and taken out an IED from his pocket and blasted it and, thereafter, had left while entrusting the bike to the appellant. Apart from that another disclosure statement of the said co-accused Malkit Singh is stated to be there, in the form of extra-judicial confession recorded on 23.12.2019, wherein he had mentioned that he had exploded a bomb as a trial near the village canal and his friend Amarjeet Singh, the present appellant was with him. The bomb had been given by one Bikkar Baba for checking of the explosion.

4. It has, thus, the contention of the counsel for the appellant that as per the investigation itself he has been named in the said FIR only on account of the fact that he had met with Chandeep Singh @ Gabbar (A-4) and Bikramjit Singh @ Bikkar Panjwar @ Bikkar Baba (A-9) in the year 2015-2016 and the allegation that he had become highly radicalized. Accordingly, it has been contended that the sanction under the Unlawful Activities (Prevention) Act, 1967 (for short 1967 Act') has been granted under Section 13 & 20 of the 1967 Act by the Central Government, though it had also been asked under Section 120-B IPC. It is, accordingly, contended that there is nothing on record to show that the appellant is a member of any terrorist gang or terrorist organization and was involved in any unlawful activity and, therefore, is entitled for concession of bail during the pendency of the trial. It is submitted that he has been in custody almost for 2 years and 4 months and out of the 117 witnesses, only 5 h