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2021 (6) TMI 1072 - HC - Indian LawsSeeking enlargement on bail - allegation is that appellant played an active role in the conspiracy and is one of the 'masterminds' - HELD THAT - Upon a conspectus of the general law relating to bail and applying these well-worn principles to the present case, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made. Charge-sheet dated 16.09.2020 has already been filed in the matter. Some 740 witnesses have been cited in the subject charge-sheet. Trial is yet to commence. In view of the truncated functioning of courts by reason of the prevailing second wave of the COVID-19 pandemic, it is unlikely that trial will commence anytime soon. While the presence of the appellant for purposes of trial must be secured, there is no material or basis to suspect; nor is there any reasonable apprehension that the appellant will tamper with evidence or intimidate witnesses. The gravity of the offence alleged would beget the length of sentence, as may be awarded upon conclusion of trial; but an assertion as to the gravity of the offence cannot thwart the grant of bail - apart from militating against the presumption of innocence, pre-trial detention would lead to needless psychological and physical deprivations; and above all, would seriously hamper the appellant from participating in and contributing to the preparation of his defence at the trial. The three cardinal concerns against grant of bail pending trial, namely of evidence tampering, witness intimidation and abscondence, can be addressed by imposition of requisite conditions on grant of bail. The appellant shall furnish a personal bond in the sum of ₹ 50,000/- with 02 local sureties in the like amount, to the satisfaction of the learned Trial Court - the bail is granted subject to conditions imposed. Application allowed.
Issues Involved:
1. Legality of the appellant's detention under the UAPA. 2. Applicability of stringent bail conditions under UAPA. 3. Right to protest under the Constitution. 4. Prima facie case against the appellant under UAPA. 5. General principles of bail. Detailed Analysis: 1. Legality of the appellant's detention under the UAPA: The appellant, a 25-year-old student, was arrested under FIR No. 59/2020 for various offences, including those under the UAPA. The appellant challenged the denial of bail by the Special Court. The court examined whether the allegations made against the appellant under sections 15, 17, and 18 of the UAPA were prima facie true. The court noted that the essential aim of the activities attributed to the appellant was to orchestrate a protest against the CAA, perceived as discriminatory against the Muslim community. However, the court found no specific allegations that the appellant's actions amounted to a "terrorist act" as defined under the UAPA. 2. Applicability of stringent bail conditions under UAPA: The court analyzed section 43D(5) of the UAPA, which imposes stringent conditions for granting bail. It noted that the burden to demonstrate the prima facie veracity of the allegations lies with the prosecution. The court cited the Supreme Court's decision in *National Investigation Agency vs. Zahoor Ahmad Shah Watali*, emphasizing that the court must not delve into the merits of the evidence at the bail stage. The court found that the State's attempt to show that the accusations against the appellant were prima facie true did not commend itself for acceptance. 3. Right to protest under the Constitution: The court discussed the constitutionally guaranteed right to protest under Article 19(1)(b) of the Constitution, which allows for peaceful assembly. It cited the Supreme Court's observations in *Mazdoor Kisan Shakti Sangathan vs. Union of India and Anr.*, which highlighted that legitimate dissent is a feature of democracy. The court noted that the protest in question was not banned or outlawed and was monitored by law enforcement agencies. The court found no evidence that the appellant's involvement in the protest crossed into the realm of a "terrorist act" under the UAPA. 4. Prima facie case against the appellant under UAPA: The court examined the specific allegations against the appellant, such as providing a SIM card to a co-accused and participating in meetings to organize the protest. The court found that these actions did not constitute a "terrorist act" under section 15 of the UAPA. The court emphasized that the definition of "terrorist act" must be construed narrowly and should not be applied casually to ordinary criminal acts. 5. General principles of bail: The court referred to the general principles of bail, emphasizing that the object of bail is to secure the appearance of the accused at trial and not to punish them pre-trial. The court cited the Supreme Court's decisions in *Sanjay Chandra vs. CBI* and *P. Chidambaram vs. CBI*, which highlighted that the seriousness of the charge alone cannot justify denial of bail. The court found no material or basis to suspect that the appellant would tamper with evidence or intimidate witnesses. Conclusion: The court concluded that the accusations against the appellant did not make out a prima facie case under sections 15, 17, or 18 of the UAPA. The stringent conditions for bail under section 43D(5) of the UAPA were not applicable. The court allowed the appeal and granted the appellant bail, subject to certain conditions, emphasizing that the appellant's right to a speedy trial and preparation of defense must be protected.
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