Prolonged pre-trial detention mandates consideration for bail under Article 21, emphasizing the need for sufficient evidence linking the accused to criminal conspiracy under the UAPA.

JUDGMENT :

LAPITA BANERJI, J.

The appellant-Javed, has challenged the order dated September 20, 2022, passed by Additional Sessions Judge, SAS Nagar, Mohali, exercising the power of Special Court, whereby his bail application in FIR No.02 of 05.02.2020 registered under Section 120 -B of Indian Penal Code (hereinafter referred to as “ IPC ”), Section 25 of the Arms Act, Sections 10 ,13,18,19,20 of The Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as “the UAPA ”), at Police Station State Special Operation Cell, District SAS Nagar, Mohali has been dismissed.

2. Learned counsel for the appellant submits that although it has been alleged that the appellant was involved in unlawful activities under UAPA but except for alleged recovery of one 7.65 mm pistol, five 7.65 live cartridges along with one .315 bore pistol, two .315 live cartridges and one Samsung mobile phone from his wife-Tamanna, nothing else was recovered from him. No incriminating material/evidence was recovered from the appellant which could connect or link him to any offence under . Apart from the purported statements of chance witnesses-Kulwinder Singh @ Kala, Amrik Singh and Nishant Sharma, there was no evidence collected by the prosecution to connect the appellant to commission of any crime, moreso to an offence under the . Furthermore, he submits that only 01 out of 40 prosecution witnesses have been examined despite passage of more than 05 years of incarceration of the appellant.

3. In support of his submissions, he has placed reliance upon the judgments of the Supreme Court in the cases of Union of India v. K.A. Najeeb , (2021) 3 SCC 713 , Shoma Kanti Sen v. State of Maharashtra and another , 2024 SCC OnLine SC 498, Vernon v. The State of Maharashtra and another , 2023 SCC OnLine SC 885, Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh 2024 SCC OnLine SC 1755 and Javed Gulam Nabi Shaikh v. State of Maharashtra and another , 2024 SCC OnLine SC 1693, wherein it has been held that long custody by itself would entitle the accused being tried under UAPA to the grant of bail by invoking Article 21 of the Constitution of India.

4. He also places reliance upon State of Kerala v. P. Sugathan and another , (2000) 8 SCC 203 , to submit that even if 7.65 mm pistol and five 7.65 live cartridges along with one .315 bore pistol and two .315 live cartridges were recovered from the appellant as well as one Samsung mobile phone recovered from his wife, still nothing has been brought on record by the prosecution to establish criminal conspiracy between the present appellant and other co-accused. The relevant extract of the titled case is reproduced hereinafter:

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12. We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of interference. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.) held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumst