2022 (5) TMI 792 - SC - Indian Laws

Seeking grant of Bail - framing of charges - Appellant who is an undertrial prisoner, has already undergone a long period of incarceration - offences punishable Under Sections 10, 13, 15, 16, 17, 18, 18A, 18B, 19, 20, 23 and 38 of the Unlawful Activities (Prevention) Act, 1967 - HELD THAT - The fact remains that the Appellant has been in custody as an undertrial prisoner for a period of nearly 8 years already. The Appellant, it may be noted, is charged with offences, some of which are punishable with a minimum punishment of 10 years and the sentence may extend to imprisonment for life. Learned Counsel for the Appellant also points out that one of the co-Accused namely Shri Aadil Ansari has been released on bail on 30.09.2020 by this Court. No doubt, in this regard, we keep in mind the submission of the State that the role attributed to the said Accused is different. The condition in Section 43D(5) of the Act of 1967 has been understood to be less stringent than the provisions contained in Narcotic Drugs and Psychotropic Substances Act, 1985 - in the nature of the case against the Appellant, the evidence which has already unfolded and above all, the long period of incarceration that the Appellant has already undergone, time has arrived when the Appellant be enlarged on bail. The Appellant is directed to be released on bail subject to such conditions as shall be fixed by the trial Court - appeal allowed.

Summary

Issues:
1. Denial of bail under Section 439 of the Code of Criminal Procedure.
2. Lengthy incarceration of the appellant.
3. Examination of witnesses and trial progress.
4. Need for protection of witnesses.
5. Comparison with similar cases.
6. Interpretation of Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967.

Analysis:
1. The appellant was denied bail under Section 439 of the Code of Criminal Procedure due to being arrested in connection with various offenses under the Unlawful Activities (Prevention) Act, 1967. Despite spending almost 8 years in custody, only 6 witnesses have been examined, out of a total of 109 witnesses, indicating a slow trial progress.

2. The Supreme Court noted the appellant's lengthy incarceration and the slow pace of the trial, with the possibility of the case taking another 2-3 years for disposal. Concerns were raised regarding the need to expedite the trial process due to the appellant's prolonged detention as an undertrial prisoner.

3. The court emphasized the importance of protecting witnesses, especially those expressing concerns about their safety while deposing against the accused. The State was directed to ensure the priority examination of such witnesses within a maximum period of two months to address any threats they may face.

4. Reference was made to previous judgments highlighting the importance of granting bail when an accused has been in custody for an extended period with little chance of an early trial completion. The court considered the less stringent conditions of Section 43D(5) of the Unlawful Activities (Prevention) Act compared to other special enactments like the NDPS Act.

5. The court acknowledged the severity of the charges against the appellant, some of which carried significant penalties, but also considered the appellant's long incarceration and the progress of the trial. The release of a co-accused on bail was also taken into account, leading to the decision to grant bail to the appellant.

6. In interpreting Section 43D(5) of the Act of 1967, the court found that the evidence presented so far, combined with the appellant's extended detention, warranted granting bail. The court allowed the appeal, set aside the impugned order, and directed the appellant's release on bail, subject to conditions set by the trial court.