# Alam @ Mohammad Alam v. State of U.P. & Anr

- **Citation:** (2022) 8 ILRA 718
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-23
- **Case number:** Criminal Appeal No.1597 of 2022
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alam-mohammad-alam-v-state-of-u-p-anr-48935
- **Pages:** 12

## Headnote

Law-
National
Investigation
Agency Act, 2008- Section 21- Bail - No
incriminating article has been found and
no such material could be detected from
the mobile phone of the appellant as to
show his association with the terrorist or
terrorist activities- The grave offence
under Section 124-A of I.P.C. is there in
chargesheet but the Hon'ble Supreme
Court has put the effect of Section 124-A
I.P.C.
in
abeyance
in
the
case
of
S.G.Vombatkere Vs Union of India, Writ
Petition (C) No.682/2021. The only
evidence against the appellant which has
been shown at this stage i.e. after filing of
8 All. Alam @ Mohammad Alam Vs. State of U.P. & Anr.
719
the
chargesheet
is
that
he
paid
Rs.2,25,000/- as a purchase money of car
to one Mohd. Aneesh just few days ahead
of the incident and he is a relative of
Danish who has criminal antecedents and
was involved in roits of Delhi over the CAA
Protest-In regard to the above two
alleged evidences, the appellant has given
a
prima
facie
plausible
explanation-
Admittedly, the chargesheet has been
filed. There are 55 witnesses mentioned in
the chargesheet and the trial has not
commenced yet. It will take a long time in
completion of the trial. The appellant is
already in jail since 5.10.2020- Prima
facie, there appears no complicity and
involvement of the appellant with the
terrorist activities or any other activity
against the nation- No such allegation has
been placed before us to show that the
appellant shall if released on bail, terrorise
the witnesses to depose in the case or
there is possibility of his absconding.

As no evidence , prima facie, establishing the
involvement of the appellant in any terrorist
activities is present, the offence u/s 124A of the
IPC has been kept in abeyance by the Hon'ble
Supreme Court and the adverse circumstances
against the appellant have been satisfactorily
explained by him, then considering the further
fact that a large number of witnesses remain to
be examined and there is no likelihood of the
appellant
absconding
or
tampering
the
prosecution witnesses, the appellant is admitted
to bail. (Para 21, 24, 25, 27, 29)

Appeal allowed. (E-3)

Judgements/ Case law relied upon:-

## Text

718 INDIAN LAW REPORTS ALLAHABAD SERIES
days) and no convincing explanation was
given for the same and and correct picture
about information of commission of rape
on the victim given to the parents has also
not come forward as the mother in her
statement stated that the victim had
informed about commission of rape after 23 days whereas as per victim she was taken
to the police station and hospital on the
same day (i.e. 20.6.2012) for medical
examination whereas admittedly the first
information report was lodged after four
days and this delay has not been explained
properly so as to generate confidence
regarding cause of delay in lodging the
FIR. From the evidence available on
record, it is clear that the victim was minor
and in case had there being any rape
committed on her she must have suffered
some kind of injury on her body
particularly oh her private parts whereas
there was no such injury, which was
categorically proved by the doctor who has
conducted
the
medical
examination,
coupled with the fact that there is evidence
of enmity between the parties due to the
land dispute (situated in front of the home
of the information). In such view of the
matter, we find that a correct view has been
taken by the court below, which does not
require any interference by this Court by
taking a different view.

18. Accordingly, present criminal
appeal stands dismissed at the admission
stage itself.

Re: Criminal Misc. Application
(Leave to Appeal)

1. As already held by this Court
in number of cases that leave application
filed under Section 378(3) Cr.P.C. is not
required in the appeal filed by the victim
under Section 372 Cr.P.C. like the present
appeal. A reference may be made to the
order dated 4.8.2021 passed in Criminal
Appeal U/S 372 Cr.P.C. No. 123 of 2021
(Rita Devi vs. State of U.P. and another).
As such, the application for leave to appeal
stands rejected as not maintainable and / or
not required.

2. Since the office has already
allotted regular number, there is no need to
allot fresh regular number.
----------
(2022) 8 ILRA 718
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.08.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No.1597 of 2022

Alam @ Mohammad Alam ...Appellant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Sri Amarjeet Singh Rakhra

Counsel for the Opposite Parties:
Sri Umesh Channdra Verma, A.G.A.

Criminal
Law-
National
Investigation
Agency Act, 2008- Section 21- Bail - No
incriminating article has been found and
no such material could be detected from
the mobile phone of the appellant as to
show his association with the terrorist or
terrorist activities- The grave offence
under Section 124-A of I.P.C. is there in
chargesheet but the Hon'ble Supreme
Court has put the effect of Section 124-A
I.P.C.
in
abeyance
in
the
case
of
S.G.Vombatkere Vs Union of India, Writ
Petition (C) No.682/2021. The only
evidence against the appellant which has
been shown at this stage i.e. after filing of
8 All. Alam @ Mohammad Alam Vs. State of U.P. & Anr.
719
the
chargesheet
is
that
he
paid
Rs.2,25,000/- as a purchase money of car
to one Mohd. Aneesh just few days ahead
of the incident and he is a relative of
Danish who has criminal antecedents and
was involved in roits of Delhi over the CAA
Protest-In regard to the above two
alleged evidences, the appellant has given
a
prima
facie
plausible
explanation-
Admittedly, the chargesheet has been
filed. There are 55 witnesses mentioned in
the chargesheet and the trial has not
commenced yet. It will take a long time in
completion of the trial. The appellant is
already in jail since 5.10.2020- Prima
facie, there appears no complicity and
involvement of the appellant with the
terrorist activities or any other activity
against the nation- No such allegation has
been placed before us to show that the
appellant shall if released on bail, terrorise
the witnesses to depose in the case or
there is possibility of his absconding.

As no evidence , prima facie, establishing the
involvement of the appellant in any terrorist
activities is present, the offence u/s 124A of the
IPC has been kept in abeyance by the Hon'ble
Supreme Court and the adverse circumstances
against the appellant have been satisfactorily
explained by him, then considering the further
fact that a large number of witnesses remain to
be examined and there is no likelihood of the
appellant
absconding
or
tampering
the
prosecution witnesses, the appellant is admitted
to bail. (Para 21, 24, 25, 27, 29)

Appeal allowed. (E-3)

Judgements/ Case law relied upon:-

1. Asif Iqbal Tanha Vs St. of NCT of Del. :
MANU/DE/1095/2021 : (2021) 3 SCC (Del) 106

2. The N.I,A, Ministry of Home Affair, G.O.I. Vs
Akhil Gogoi : MANU/GH/0179/2021

3. U.O.I Vs K.A.Najeeb. : (2021) 3 SCC 713

4. Thwaha Fasal Vs U.O.I, AIR Online 2021 SC
963

5. The N.I.A Vs Zahoor Ahmad Shah Watali :
(2019) 5 SCC 1.

6. Ramjhan Gani Paloni Vs N.I.A : 2022 SC
2070.

7. S.G.Vombatkere Vs U.O.I, Writ Petition (C)
No.682/2021.

8. Sudesh Kedia Vs U.O.I : (2021) 4 SCC 704

9. Ashim @ Asim Kumar Haranath Bhattacharya
@ Asim Harinath Bhattacharya @ Aseem Vs
N.I.A, (2022) 1 SCC 695

(Delivered by Hon'ble Ramesh Sinha, J.
&
Hon'ble Mrs. Saroj Yadav, J.)

1. By filing this appeal under Section
21 of the National Investigation Agency
Act, 2008 (hereinafter referred to as NIA
Act), the appellant Alam @ Mohd. Alam
has challenged the order dated 30.5.2022
passed by the learned Additional District
and Sessions Judge, Court No.3/Special
Judge,
NIA
Special
Court,
A.T.S.,
Lucknow (in short Special Court) whereby
bail application of the appellant was
rejected.

2. The bail application of Sidhique
Kappan was heard and rejected by learned
Single Judge of this Court on 2.8.2022.
That was so heard because at that time the
bail application of Sidhique Kappan was
decided by learned Additional District and
Sessions Judge, Court No.1, Mathura as the
case was pending in the court of Mathura
District. Thereafter, on the application
moved by the prosecution, the case was
transferred to Special Court, Lucknow, the
court established for trying the cases of
such nature. The application was allowed
per order dated 13.12.2021 and the case
was transferred to the Special Court,
720 INDIAN LAW REPORTS ALLAHABAD SERIES
Lucknow. This case was investigated by
the Special Task Force.

3. Under Section 21 sub clause (2) of
the NIA Act, the appeal shall be heard by a
Bench of two Judges of the High Court. For
this reason, this appeal has been listed and
heard by this Division Bench.

4. The appellant is presently in jail
having been arrested on 5.10.2020 in Case
Crime No.0199 /2020, Police Station Manth,
District Mathura, wherein a chargesheet has
been filed in court on 2.4.2021 under Sections
153-A, 295-A, 124-A, 120-B of the Indian
Penal Code,1860 (in short I.P.C.), Sections 65
and 72 of the Information Technology
(Amendment) Act, 2008 and Sections 17 and
18 of The Unlawful Activities ( Prevention )
Act, 1967 ( in short UAPA ).

5.The bail application filed by the
appellant was rejected by the learned
Special Court observing that the accused/
appellant is named in the First Information
Report
(
in
short
F.I.R.)
and
the
chargesheet had been filed against him
after investigation, so at this stage, it cannot
be said that he is completely innocent. The
learned Special Court further observed that
the application of the co accused has
already been rejected, hence in view of the
learned
Special
Court,
the
accused
appellant was not entitled for bail and the
Special Court rejected the bail application.
Being aggrieved of this rejection order, this
appeal has been preferred.

6. Heard Shri Amarjeet Singh Rakhra,
learned counsel for the appellant and Shri
Umesh Chandra Verma, learned A.G.A. for
the respondent.

7. Learned counsel for the appellant
Shri Rakhra argued that :-

i). Even from the perusal of the
F.I.R. No.0199/2020, it is clear that the
appellant has no role in the commission of
the alleged offence. He was just ferrying
the passengers in his taxi to the place of
their destination.

ii). There is no allegation against
the appellant that he was associated with
any terrorist organization or was soliciting
any donation or funding or had any linkage
with either P.F.I. or C.F.I.

iii). No incriminating material
was recovered from the possession of
appellant or on his pointing out and a
thorough investigation of his technical
footprints (Mobile Data records and Social
Website etc.) revealed that the appellant is
not associated with any suspicious or anti
national activities.

iv). It is an admitted position that
the investigating agency has found no link
of receiving any financial aid from any
suspected organization or individual nor
any heavy /suspicious transactions in the
Bank account of the appellant were traced.

v). The appellant is neither
engaged in any unlawful activity as defined
under Section 2(o) of the UAPA nor is a
part of any unlawful association as defined
under Section 2 (p) of UAPA.

vi). The offences under Sections
mentioned in the chargesheet are not made
out against the appellant even if the story of
the prosecution is believed on its face
value. Sections 17 and 18 of the UAPA
which relates to raising funds for terrorist
activities and punishment thereof and
conspiracy for committing any terrorist act
and punishment thereof are not even
remotely attracted to the facts of the case.
8 All. Alam @ Mohammad Alam Vs. State of U.P. & Anr.
721

vii). From a bare perusal of the
F.I.R., the chargesheet prepared and the
material/evidence
collated
by
the
investigating agency, it is abundantly clear
that no 'terrorist act' as defined under
Section 15 of UAPA is made out as, neither
of the alleged provisions of Section 17 and
18 of the UAPA are attracted. The Special
Court has completely failed to appreciate
that the perusal of the allegations made in
the F.I.R. and the contents of the case diary
including the chargesheet and material
collated by the investigating agency clearly
evince that accusation made against the
appellant is prima facie false.

viii). In view of the provisions of
Section 43-D (5) of the UAPA, it is the
duty of the court dealing with the bail
application of the accused to satisfy itself
with regard to there being reasonable
grounds for believing that the accusation
against the accused is prima facie true. This
provision has been inserted with a view to
ensure that the stringent provisions of the
U.A.P.A. are not misused against innocent
persons. In the present matter, the learned
Special Court has completely failed to
satisfy itself about the applicability of
Section 43-D (5) of the UAPA and has
merely rejected bail application of the
appellant merely because a chargesheet has
been filed against him and the bail
application of the co accused was rejected.

ix).
There
was
neither
any
occasion nor any motive for the appellant
to commit the offence in question. The
appellant
is
languishing
in
jail
for
approximately two years even though there
is no prima facie case against him and no
active role has been attributed to him by the
investigating agency.

x). The investigating agency has
already filed a chargesheet against the
appellant and the trial is yet to commence.

xi). It is a settled position of law
that presence of statutory restrictions like
Section 43-D (5) of UAPA, per se does not
oust the ability of the Constitutional Courts
to grant bail on grounds of violation of
Part-III of the Constitution of India. Indeed,
both the restrictions under the statutes as
well as the powers exercisable under
constitutional jurisdiction may be well
harmonised.

xii).
There
are
around
55
witnesses of the prosecution as per the
chargesheet and while the appellant is
languishing in jail for almost two years, the
trial is yet to commence.

xiii). There is not even a prima
facie case, establishing the complicity of
the appellant and the nature and gravity of
charges and the absence of criminal history
on his part require his release on bail.

xiv). By the Hon'ble Supreme
Court in the case of S.G.Vombatkere Vs.
Union of
India,
Writ
Petition
(C)
No.682/2021 rigour of Section 124-A
I.P.C. has been taken away and its
application in the pending cases has been
kept in abeyance. The sections mentioned
in the chargesheet except Section 124-A
I.P.C. denote no serious offence.

xv). No criminal antecedents
could be found by the investigating agency
after a thorough investigation. Hence,
considering above submissions, the appeal
may be allowed and the appellant be
released on bail.
722 INDIAN LAW REPORTS ALLAHABAD SERIES

8. Learned counsel for the appellant
has relied upon the following case laws :-

a). Asif Iqbal Tanha Vs. State of
NCT of Delhi. : MANU/DE/1095/2021 :
(2021) 3 SCC (Del) 106.

b). The National Investigation
Agency, Ministry of Home Affair, Govt. of
India.
Vs.
Akhil
Gogoi
:
MANU/GH/0179/2021

c).
Union
of
India
Vs.
K.A.Najeeb. : (2021) 3 SCC 713.

d). Thwaha Fasal Vs. Union of
India reported in AIR Online 2021 SC 963

9. To the contrary, Shri Umesh
Chandra Verma, learned A.G.A. countered
the arguments of the learned counsel for the
appellant and argued that :-

i). The Special Court has rejected
the bail application of the appellant giving
valid reasons.

ii). A chargesheet has been filed
against the appellant after collecting
sufficient evidence against him. At the time
of arrest, one mobile phone was recovered
from the appellant. However, pamphlets
etc. were recovered from the co-accused
persons. Sufficient evidence of the use of
money received from terror funding to
purchase the car being used by the
appellant has been found in investigation.

iii). On 5.10.2020, the applicant
and co accused persons were arrested under
the provisions of Section 151 of the Code
of Criminal Procedure, 1973 (in short
Cr.P.C.) for the proceedings of Sections
107/116 of Cr.P.C. in an apprehension of
disturbing the peace by going to Hathras
which was mentioned in the G.D. No.41 of
the Manth Police Station, Mathura but after
that on examining the six phones, one
laptop and 17 printed papers recovered
from the possession of the accused and coaccused persons, the conclusion drawn by
the investigating officer Sub-Inspector Mr.
Prabal Pratap Singh, the F.I.R. in question
was registered against the appellant and co-
accused persons on 7.10.2020 at 6.13 a.m.
at
Police
Station
Manth
at
Crime
No.199/2020.

iv). During the investigation of
the case Crime No.136/ 2020 registered at
Police Station Chandapa on 14.9.2020
about the unfortunate incident occurred at
Harthras wherein a girl was killed,i t was
revealed
that
the
appellant
and his
associates were the members of one such
organization which intended to disturb the
law and order in Hathras, to implement
their nefarious designs.

v). The so-called taxi of the
appellant
was
registered
with
OLA
Company but the taxi was not booked
through OLA Company by the appellant to
take
co-accused
persons
to
village
Boolgarhi, Hathras. As per the inputs
received, the taxi i.e. Swift Desire Car No.
DL-1ZC 1203 was registered with OLA
Company only to escape it from scrutiny.
The real fact is that the taxi in question was
being used for some criminal activities.
From the investigation, it has come to light
that during the period of lock-down when
taxi business was completely closed, the
taxi in question was purchased by the
appellant from one Mohd. Anees on
25.9.2020 by paying Rs.2,25,000/- in cash,
just 10 days prior to the incident. It shows
that the amount of Rs.2,25,000/- was
received by the appellant from PFI/ CFI.
The appellant could not offer any plausible
8 All. Alam @ Mohammad Alam Vs. State of U.P. & Anr.
723
explanation as to how he arranged that
money.

vi). The appellant drove his car
as OLA Cab and there is no shortage of
passengers for OLA Cab in NCR but still
the booking of OLA car was not taken by
the appellant on the date of incident just
to help the members of the PFI on the
direction of his relative Danish.

vii). The past criminal history of
the appellant is not known, however, the
criminal history of Ateek-ur- Rahman and
Danish, brother-in-law (Sala) of the
appellant has come to light.

viii). The appellant is associated
with the PFI organization which is
involved in terrorist activities in the
country and is trying to create unrest in
the country by spreading caste and
religious animosity.

ix). The bail application of the
accused appellant was rejected by the
learned Special Court on the basis of
sufficient grounds as ample evidence is
there against the appellant,hence the
appeal should be dismissed.

10. Learned A.G.A. relied upon
following case laws :-

a).
The
National
Investigation
Agency Vs. Zahoor Ahmad Shah Watali
: (2019) 5 SCC 1.

b).
Ramjhan
Gani
Paloni
Vs.
National Investigation Agency : 2022 SC
2070.

11.

Considered
the
rival
submissions and gone through the case
laws cited and the material available on
record.

12. It is an admitted fact that the
appellant was arrested while driving the
other co-accused persons to Hathras in his
taxi/car Swift Desire Car No. DL-1ZC
1203.

13. The allegation of the respondents
is that he was so driving the co-accused
persons for committing the alleged crime. It
is also admitted that chargesheet has
already been filed against the appellant
under Sections 153-A, 295-A, 124-A, 120B of I.P.C., Sections 65 and 72 of the
Information
Technology
(Amendment)
Act, 2008 and Sections 17 and 18 of
UAPA.

14. In the chargesheet which has been
annexed as Annexure No.CA-5 to the
counter
affidavit,
the
following
observations has been made against the
appellant :-

"vfHk;qDr vkye lg vfHk;qDr nkfu'k
dk fjLrsnkj gSA nkfu'k ih,QvkbZ dk f=yksdiqjh
okMZ dk v/;{k gS tks iwohZ fnYyh esa naxks ds nSjku
fgalk djus] ftles yxHkx 51 yksx ekjs x;s Fks]
ds vfHk;ksx esa vfHk;qDr gSA vfHk;qDr vkye is'ks
ls VSDlh pkyd gS ftlus ;kstuk ds vuqlkj
?kVuk ls iwoZ fnukad 24-09-2020 dks 2-25 yk[k
:i;k udn nsdj VSDlh [kjhnh gSA vkye ds cSd
[kkrs ds voyksdu ls mlds [kkrs esa ukeek= dk
:i;k tek gSA ih,QvkbZ ds yksxks ,ao lg
vfHk;qDrks }kjk vkradh fxjksg dks izkIr QafMx ls
udn :i;k nsdj mlds mn~ns'; dh iwfrZ ds fy,
xkMh [kjhnokbZ x;h gSA vfHk;qDr vkye fnukad
?kVuk dks gkFkjl lg vfHk;qDrks ds lkFk tk jgk
Fkk tcfd og vksyk dEiuh esa VSDlh yxkdj
cqfdx dk dk;Z ysrk gSA ijUrq fnukad ?kVuk dks
vksyk dEiuh ls xkM+h cqd ugh dh x;h Fkh
ftlls ;g Li"V gksrk gS fd vkye lg vfHk;qDrks
724 INDIAN LAW REPORTS ALLAHABAD SERIES
ds lkFk ?kVuk dks vatke nsus ds "kM+;a= esa 'kkfey
FkkA"

15. It is also admitted that initially the
appellant was challaned under Section
107/116 Cr.P.C. and ordered to file the
bonds but he failed to file bonds. Thereafter
the F.I.R. in question was registered. The
allegations of prosecution is that in
investigation, the material evidence was
found against him.

16. In National Investigation Agency
Vs. Zahoor Ahmad Shah Watali (supra),
the Hon'ble Supreme Court has held as
under :-

"21.
Before
we
proceed
to
analyse the rival submissions, it is apposite
to restate the settled legal position about
matters to be considered for deciding an
application for bail, to wit :

(i). Whether there is any prima
facie or reasonable ground to believe that
the accused had committed the offence;

ii). nature and gravity of charge;

iii). severity of the punishment in
the event of conviction;

iv).
danger
of
the
accused
absconding or fleeing, if released on bail;

v). character, behaviour, means,
position and standing of the accused;

vi). likelihood of the offence being
repeated;

vii). reasonable apprehension of
the witnesses being tampered with;

(viii). danger, of course, of justice
being thwarted by grant of bail."

17. After careful examination of the
material available on record, the only
evidence against the appellant on which the
prosecution
hammered
much,
is
the
payment of Rs.2,25,000/- made to one
Anees for purchase of the vehicle which he
was driving at the time of the incident. The
learned A.G.A. argued that the money
which he paid was earned by him out of
terrorist funding as the economic condition
of the appellant was not sound enough to
pay for the same.

18. Learned counsel for the appellant
countered the argument and offered an
explanation in this regard that the appellant
borrowed the money from his cousin
namely Mehboob Ali who has filed
affidavit
stating
the
same
and
also
explained the source of money from which
Mehboob
arranged
that
money.
No
question has been raised on the affidavit
filed by Mehboob Ali and on the fact
explained by Mehboob Ali as to how he
resourced Rs.2,25,000/- to the appellant.
One more important argument of learned
A.G.A. on which he pressed hard is that the
appellant used to ply his vehicle for OLA
Company but on the day it was not booked
through Company rather booked directly.
The appellant has admitted that it was
booked directly and explained, as that was
COVID period and he could get some more
money
through
direct
booking
in
comparison to the booking through OLA,
so he preferred the direct booking and
ferried the passengers to their destination.
He further submitted that there was no
restrictions from OLA company to take
direct booking.
8 All. Alam @ Mohammad Alam Vs. State of U.P. & Anr.
725

19. Learned A.G.A. has not disputed
the fact that a Cab associated with OLA
Company could take direct bookings. It
was also argued vehemently by learned
A.G.A. that the appellant is a relative of
Danish who has criminal antecedents and
was found associated with many riots
committed in Delhi regarding CAA protest.

20. Learned counsel for the appellant
admitted that Danish is cousin of the
appellant but submitted that he has no
association or link with the crimes alleged
against him. The only connection found in
this regard is that he made a telephone call
to the appellant to get the taxi booked.

21. No incriminating article has been
found and no such material could be detected
from the mobile phone of the appellant as to
show his association with the terrorist or
terrorist activities. Mainly, the grave offence
under Section 124-A of I.P.C. is there in
chargesheet but the Hon'ble Supreme Court
has put the effect of Section 124-A I.P.C. in
abeyance in the case of S.G.Vombatkere Vs.
Union
of
India,
Writ
Petition
(C)
No.682/2021.

22. In Asif Iqbal Tanha Vs. State of
NCT of Delhi(supra), the Hon'ble High
Court of Delhi has held as under :-

"61. Once we are of the opinion, as
we are in the present case, that there are no
reasonable grounds for believing that the
accusations against the appellant are prima
facie true, the Proviso to Section 43D(5)
would not apply; and we must therefore fall
back upon the general principles of grant or
denial of bail to an accused person charged
with certain offences.

64. The observations of the
Hon'ble Supreme Court in Mazdoor Kisan
Shakti Sangathan (supra) appear to us to
be the most lucid and pithy answer as to the
contours of legitimate protest and these
bear repetition. In the said decision the
Hon'ble Supreme Court says that legitimate
dissent is a distinguishable feature of any
democracy and the question is not whether
the issue raised by the protestors is right or
wrong or whether it is justified or
unjustified, people have the right to express
their views ; and a particular cause, which
in the first instance, may appear to be
insignificant
or
irrelevant
may
gain
momentum and acceptability when it is
duly voiced and debated. The Hon'ble
Supreme Court
further
says
that a
demonstration may take various forms : it
may be noisy, disorderly and even violent,
in which case it would not fall within the
permissible limits of Articles 19(1) (a) or
19(1) (b) and in such case the Government
has the power to regulate, including
prohibit, such protest or demonstration.
The Government may even prohibit public
meetings, demonstrations or protests on
streets or highways to avoid nuisance of
disturbance of traffic but the Government
cannot close all streets or open areas for
public meetings thereby defeating the
fundamental right that flows from Article
19(1) (a) and 19(1) (b) of the Constitution.

66. In our view, on an objective
reading of the allegations contained in the
subject charge-sheet, there is complete lack
of any specific, particularised, factual
allegations, that is to say allegations other
than those sought to be spun by mere
grandiloquence, contained in the subject
charge-sheet that would make out the
ingredients of the offences under Sections
15, 17 or 18 UAPA. Foisting extremely
grave
and
serious
penal
provisions
engrafted in Sections 15, 17 and 18 UAPA
frivolously upon people, would undermine
726 INDIAN LAW REPORTS ALLAHABAD SERIES
the intent and purpose of the Parliament in
enacting a law that is meant to address
threats to the very existence of our Nation.
Wanton use of serious penal provisions
would only trivalise them. Whatever other
offence(s) the appellant may or may not
have committed, at least on a prima facie
view, the State has been unable to persuade
us that the accusations against the
appellant show commission of offences
under Sections 15, 17 or 18 UAPA.

71. A quick conspectus of the
general principles for considering a bail
plea would not be out of place at this point.
Outlining the considerations for bail, in
Ash Mohammad Vs. Shiv Raj Singh and
another, the Supreme Court expressed itself
as follows :-

"8. In Ram Govind Upadhya v.
Sudarshan Singh : (2002) 3 SCC 598, it has
been opined that the grant of bail though
involve exercise of discretionary power of
the court, such exercise of discretion has to
be made in a judicious manner and not as a
matter of course. The heinous nature of the
crime warrants more caution and there is
greater chance of rejection of bail, though,
however dependent on the factual matrix of
the matter. In the said case the learned
Judges referred to the decision in Prahlad
Singh Bhati v. NCT, Delhi and stated as
follows :

"(a). While granting bail the
court has to keep in mind not only the
nature of the accusations, but the severity
of the punishment, if the accusation entails
a conviction and the nature of evidence in
support of the accusations.

(b). Reasonable apprehensions of
the witnesses being tampered with or the
apprehension of there being a threat for the
complainant should also weigh with the
court in the matter of grant of bail.

(c ). While it is not expected to
have the entire evidence establishing the
guilt of the accused beyond reasonable
doubt but there ought always to be a prima
facie satisfaction of the court in support of
the charge.

(d).
Frivolity
in
prosecution
should always be considered and it is only
the element of genuineness that shall have
to be considered in the matter of grant of
bail, and in the event of there being some
doubt as to the genuineness of the
prosecution, in the normal course of events,
the accused is entitled to an order of
bail.................."

23. In Union of India Vs. K.A.
Nazeeb (supra), the Hon'ble Supreme
Court has held as under :-

"16. This Court has clarified in
numerous judgements that the liberty
guaranteed by Part III of the Constitution
would cover within its protective ambit not
only due procedure and fairness but also
access to justice and speedy trial. In
Supreme Court Legal Aid Committee
Representation Under trial Prisoners v.
Union of India MANU/SC/0877/1994 :
(1994)6 SCC 731, it was held that
undertrials cannot indefinitely be detained
pending trial. Ideally, no person ought to
suffer adverse consequences of his acts
unless the same is established before a
neutral arbiter. However, owing to the
practicalities of real life where to secure an
effective trial and to ameliorate the risk to
society in case a potential criminal is left at
large pending trial, courts are tasked with
deciding whether an individual ought to be
released pending trial or not. Once it is
8 All. Alam @ Mohammad Alam Vs. State of U.P. & Anr.
727
obvious that a timely trial would not be
possible and the accused has suffered
incarceration for a significant period of
time, Courts would ordinarily be obligated
to enlarge them on bail.

19. Adverting to the case at hand,
we are conscious of the fact that the charges
levelled against the respondent are grave and
a serious threat to societal harmony. Had it
been a case at the threshold, we would have
outrightly turned down the Respondent's
prayer. However, keeping in mind the length
of the period spent by him in custody and the
unlikelihood of the trial being completed
anytime soon, the High Court appears to
have been left with no other option except to
grant bail. An attempt has been made to
strike a balance between the Appellant's right
to lead evidence of its choice and establish
the
charges
beyond
any
doubt
and
simultaneously
the
Respondent's
rights
guaranteed under Part III of our Constitution
have been well protected.

20. Yet another reason which
persuades us to enlarge the Respondent on
bail is that Section 43-D (5) of the UAPA is
comparatively less stringent than Section 37
of the NDPS. Unlike the NDPS where the
competent court needs to be satisfied that
prima facie the Accused is not guilty and that
he is unlikely to commit another offence while
on bail; there is no such pre-condition under
the UAPA. Instead, Section 43-D(5) of UAPA
merely provides another possible ground for
the competent Court to refuse bail, in
addition to the well- settled considerations
like gravity of the offence, possibility of
tampering with evidence, influencing the
witnesses or change of the accused evading
the trial by absconsion etc."

24. In the present matter, the only
evidence against the appellant which has
been shown at this stage i.e. after filing of
the
chargesheet
is
that
he
paid
Rs.2,25,000/- as a purchase money of car to
one Mohd. Aneesh just few days ahead of
the incident and he is a relative of Danish
who has criminal antecedents and was
involved in roits of Delhi over the CAA
Protest.

25. In regard to the above two alleged
evidences, the appellant has given a prima
facie plausible explanation. The money paid
by him as per his statement was borrowed
from his cousin Mehboob Ali who has filed
his affidavit explaining the source of money.
As far as the relation with Danish is
concerned, he has admitted that Danish is
cousin but specifically denied that he has any
connection with the crime. Even the learned
A.G.A. cannot specify the connection of the
appellant with Danish of the nature that
appellant is associated in any way with him
regarding terrorist activities and terrorist
funding etc.

26. The Hon'ble Supreme Corut in
Sudesh Kedia Vs. Union of India : (2021) 4
SCC 704 has held as under :

"13. While considering the grant of
bail under Section 43- D(5), it is the bounden
duty of the Court to apply its mind to examine
the entire material on record for the purpose
of satisfying itself, whether a prima facie case
is made out against the accused or not."

27. Admittedly, the chargesheet has
been filed. There are 55 witnesses mentioned
in the chargesheet and the trial has not
commenced yet. It will take a long time in
completion of the trial. The appellant is
already in jail since 5.10.2020.

28. The Hon'ble Apex Court in the
case
of
Ashim
Alias
Asim
Kumar
728 INDIAN LAW REPORTS ALLAHABAD SERIES
Haranath Bhattacharya @ Asim Harinath
Bhattacharya Alias Aseem Vs. National
Investigation Agency : (2022) 1 SCC 695,
has held as under :-

"10. This Court has consistently
observed in its numerous judgements that
the liberty guaranteed in Part III of the
Constitution
would
cover
within
its
protective ambit not only due procedure
and fairness but also access to justice and
a
speedy
trials
imperative
and
the
undertrials cannot indefinitely be detained
pending trial. Once it is obvious that a
timely trial would not to possible and the
accused has suffered incarceration for a
significant period of time, the courts would
ordinarily be obliged to enlarge him on
bail.

11.
Deprivation
of
personal
liberty without ensuring speedy trial is not
consistent
with
Article
21
of
the
Constitution of India. While deprivation of
personal liberty for some period may not be
avoidable, period of deprivation pending
trial/appeal cannot be unduly long. At the
same time, timely delivery of justice is part
of human rights and denial of speedy
justice is a threat to public confidence in
the administration of justice."

29. On the basis of material available
on record upto this stage, there appears no
reasonable ground for believing that the
accusation against the appellant are prima
facie, true. Prima facie, there appears no
complicity
and
involvement
of
the
appellant with the terrorist activities or any
other activity against the nation.

30. The case of this accused appellant is
distinguished to the case of co accused
Sidhique Kappan as incriminating material
was allegedly recovered from his possession.
He is a Press Reporter and Laptop and
Mobile Phone recovered from his possession,
incriminating articles and video clips etc.
were found inter-alia. Admittedly, no such
incriminating material was recovered from
the possession of the present accused
appellant.

31. No such allegation has been placed
before us to show that the appellant shall if
released on bail, terrorise the witnesses to
depose in the case or there is possibility of his
absconding. Hence, it is clear that learned
trial court is not right in rejecting the bail
application only for the reason that the
appellant was named in the F.I.R. and
chargesheet has been filed against him.
Hence, considering all the facts and
circumstances, aforesaid, it appears just to
enlarge the appellant on bail.

32. The case law cited by the learned
A.G.A. i.e. NIA Vs. Zahoor Ahmad Shah
Watali (supra) is not applicable in this matter
because in the cited case, there were recovery
of many incriminating articles from the
accused. The account book with details of
receiving and disbursing the funds for
terrorist, contact diaries containing phone
numbers of Pakistan Nationals and Terrorist
documents showing previous involvement of
the accused in terrorist activities and CDR
reveal connection with other terrorists and
also photographs holding AK-47 Rifles with
other terrorists etc. were recovered from the
possession and house of the accused. Here in
this case, admittedly no incriminating article
was recovered from the possession of the
accused. Only one mobile phone of the
appellant was recovered from the possession
and in that mobile phone, no incriminating
material was found.

33. The case law Ramjhan Gani
Palani Vs. National Investigating Agency
8 All. Bali Singh Vs. State of U.P.
729
and another (supra) is also of no help to
respondents as the cited case law relates to
the heavy recovery of 236.62 Kg. of
Narcotic drugs. In that case, the evidence
was there against the accused that accused
remained in a fishing boat for five days and
talked on different channels in Code Words
and showing his involvement with the
miscreants.
Hence,
the
facts
and
circumstances of the case cited is entirely
different from the case in hand.

34. The appeal deserves to be allowed
and is accordingly allowed. The impugned
order dated 30.5.2022 passed by the
Special Judge, NIA/ATS, Lucknow in Bail
Application No.4344/ 2022 arising out of
Case Crime No.0199 /2020, Police Station
Manth, District Mathura is hereby set-aside
and the appellant Alam @ Mohammad
Alam is admitted to regular bail until
conclusion of trial, subject to the following
conditions :

a). The appellant shall furnish a
personal bond in the sum of Rs.50,000/-
(Rs. Fifty Thousands only) with 2 local
sureties of the like amount, to the
satisfaction of the learned trial court ;

b). The appellant shall furnish to
the investigating officer/S.H.O. a cellphone
number on which the appellant may be
contacted at any time and shall ensure that
the number is kept active and switched-on
at all times;

c). The appellant shall ordinarily
reside at his place of residence and shall
inform the investigating officer if he
changes his usual place of residence

d). If the appellant has a passport,
he shall surrender the same to the learned
Trial Court and shall not travel out of the
country without prior permission of the
learned Trial Court;

e).
The
appellant
shall
not
contact, nor visit, nor offer any inducement,
threat or promise to any of the prosecution
witnesses or other persons acquainted with
the facts of the case. The appellant shall not
tamper with evidence nor otherwise indulge
in any act or omission that is unlawful or
that would prejudice the proceedings in the
pending trial.

35. Here, it is made clear that
observations made in this order shall not
affect the trial, in any manner.
----------
(2022) 8 ILRA 729
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Criminal Appeal No. 1833 of 2008

Bali Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri A.C. Srivastava, Sri Rajesh K. Sharma,
Sri Yogesh Kumar Srivastava

Counsel for the Opposite Party:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Section 304 - The Code of Criminal
Procedure, 1973 -Section 313 - appeal
against conviction - culpable homicide not
amounting to murder - if public witnesses
of fact examined by the prosecution are
declared hostile their testimony does not
get effaced from the record - can be
utilized by the prosecution to the extent it