Prolonged pre-trial detention can justify bail under Article 21, emphasizing individual liberty rights even amidst stringent statutory limits.

JUDGMENT :

Anupinder Singh Grewal, J. (Oral)

CRM-17203-2023

1. This is an application seeking condonation of delay of 37 days in preferring the appeal against the order dated 09.02.2023 passed by the Additional Sessions Judge, Shaheed Bhagat Singh Nagar vide which bail application of the applicant-appellant was rejected.

2. Learned counsel for the applicant/appellant submits that the applicant is undergoing sentence as an undertrial and was not aware about the period of limitation. His family members had later approached the counsel and therefore, the delay has occurred in filing the appeal.

3. Issue notice in the application to the non-applicant/respondent.

4. At the asking of the Court, Mr. Aftar Singh Khara, Sr. DAG, Punjab, accepts notice on behalf of the respondent.

5. Heard.

6. The appeal against an order rejecting the application for bail is provided under Section 21 of the National Investigation Agency Act, 2008 . The period of limitation which is prescribed therein is 30 days which can be condoned up to 90 days with sufficient cause. It has been held by the Division Bench of the Bombay High Court in the case of Faizal Hasamali Mirza versus State of Maharashtra and another, 2023 SCC (online) Bom 1936, that the period of 30 days prescribed under of the would be directory in nature as the right to appeal is one of the essential components of Article 21 of the Constitution of India which guarantees protection of life and personal liberty. It has been held that in case the delay is not condoned then it would deprive the undertrial the right of appeal which is provided by the Statute which impinges on the life and liberty of the under trial as enshrined in the . It was held as under: -

'(i) that the Appellate Courts have the power to condone delay beyond the 90 days period, despite the language of the 2nd proviso to Section 21 (5) of the NIA Act and that this can be done by virtue of Section 5 of the Limitation Act, 1963, the applicability of which is not excluded under the provisions of the NIA Act. Thus, an application seeking to condone delay beyond 90 days in filing an appeal against the judgment, sentence, order, not being an interlocutory order, passed by a Special Court is maintainable, on sufficient cause being shown;

(ii) that the word 'shall' in the 2nd proviso to sub-section (5) of Section 21 , be read down, to read as 'may', and hence, directory in nature.'

7. In the instant case, the applicant/appellant is in custody as an under trial. The delay appears to be unintentional and not deliberate. It would, therefore, be in the interest of justice, if the appeal is heard and decided on merits. Consequently, the application is allowed and delay of 37 days in preferring the appeal is condoned.

Main case

The appellant has challenged the order dated 09.02.2023 passed by the Additional Sessions Judge, Shaheed Bhagat Singh Nagar whereby his bail application in FIR No.241 dated 08.11.2021, registered under Sections 307, 427, 212, 120-B IPC; Sections 3, 4, 5 of the Explosive Substances Act; Sections 13, 16, 17, 18, 18-B, 20 of the Unlawful Activities (Prevention) Act, 1967 (for short 'UAPA') and Section 6, 7, 8, 25 of the Arms Act at Police Station City Nawanshahr, has been dismissed.

2. Learned counsel for the appellant submits that the appellant was not named in the FIR and has been arraigned as an accused on the basis of a secret information to IO/SI Jamail Singh to the effect that the appellant gave shelter to the accused persons (co-accused). Later on, in the disclosure statement of t