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TMI Blog2009 (3) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 in Criminal Misc. Application No. 164 of 2007 in Special TADA Case No. 6 of 2005 in respect of offences alleged to have been committed under Sections 121, 121A, 122, 123. 120B, 34 IPC, Section 25(1), AB, AA of the Arms Act, Section 9-B of the Explosive Substances Act read with Sections 3, 4, 5 and 6 of TADA. 3. The appellant No. 1, Izharul Haq Abdul Hamid Shaikh has also filed Criminal Appeal D. No. 23837 of 2008 against order dated 9th April, 2008, passed by the Designated TADA Court at Valsad in Criminal Misc. Application No. 68 of 2008 in Special TADA Case No. 1 of 2005 in respect of charges similar to those made against him in the Porbandar case. 4. Criminal Appeal No. 813 of 2008 has been filed by one Jivan Raghu Varli against an order dated 13th September, 2007, in Criminal Misc. Application No. 88 of 2007 on charges similar to those made against Izharul Haq Abdul Hamid Shaikh. 5. In all the three appeals, the prayer for bail made on behalf of the appellants under Section 439 Cr.P.C. and Section 20(8) of TADA has been rejected. 6. Mr. Sushil Kumar, learned Senior Advocate, appearing for the appellants in Crl. Appeal No. 811 of 2008 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate, who appeared for the appellant in Criminal Appeal No. 813 of 2008, preferred by Jivan Raghu Varli, submitted that the appellant had been arrested on 28th June, 2005, and that there were as many as 47 accused in the case which was based on facts similar to those involving Izharul Haq Abdul Hamid Shaikh, and they are all on bail except the appellant who was alleged to have been absconding till he was arrested. Of the said 47 accused, the appellant, Jivan Raghu Varli, was one of the labourers who had unloaded the materials from a truck and had loaded them on to another and although the other labourers had been granted bail, the appellant's prayer for bail had been rejected on the above-mentioned ground. 10. In this regard, Mr. Ranjit Kumar referred to the decision of this Court in Shaheen Welfare Association v. Union of India and Ors. 1996CriLJ1866 , wherein keeping in mind the dilemma of individual liberty as against protection from terrorism and disruptive activities, this Court categorized people indulging in terrorism and disruptive activities into two categories. The first category was the hardcore terrorists who were directed to be dealt with strictly, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zharul Haq Abdul Hamid Shaikh at the relevant point of time. Furthermore, although, it has been suggested that the appellant had absconded for 11 years, the fact is that no steps had been taken to apprehend him during the said period or to have him declared as an absconder. 14. It was also submitted that other labourers similarly situated, such as Suresh Ishwar Varli and Mangu Mahadu Varli, had already been granted bail in connection with this case. However, bail has been refused in the case of the appellant on erroneous considerations. 15. Yet another decision of this Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. 2005CriLJ2533 was referred to by Mr. Ranjit Kumar with regard to the interpretation of Article 21 in the light of the presumption of innocence, before being proved guilty. It was observed that Article 21, in view of its expansive meaning, not only protects life and liberty, but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefore. Although, the aforesaid decision was rendered under the provisions of the Maharashtra Control of Orga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n said to have been made by Izharul Haq Abdul Hamid Shaikh, Mr. Adhyaru submitted that the said certificate satisfies the rigours of Sections 15 and 18 of TADA and the same was sufficient to deny bail, even if there was no other material available. Mr. Adhyaru relied on the decision in Kartar Singh's case (supra) which was referred to by Mr. Ranjit Kumar, wherein the validity of TADA had been upheld and this Court had held that while considering grant of bail, the High Court under Article 226 of the Constitution was required to exercise extreme caution in view of the stringent provisions of the Act. 19. Mr. Adhyaru submitted that as far as Criminal Appeal No. 811 of 2008 is concerned, it should be kept in mind that facts, other than the confessional statements, had been taken into consideration by the Special Court while denying bail to Izharul Haq Abdul Hamid Shaikh. 20. With regard to Criminal Appeal D. No. 23837/08, Mr. Adhyaru submitted that the trial had already commenced in this case and out of 86 witnesses, already 76 witnesses have been examined and that only the official witnesses were left to be examined. Further more, in this case there is a separat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending before the learned Special Judge at Porbandar and that the trial is being stayed on that account, and not on account of any delay on the part of the prosecution. 23. As indicated hereinbefore, we are only concerned with the question regarding grant of bail to the appellants. We do not, therefore, intend to go into the merits of the matters, which are pending disposal before the Special Court. However, from the submissions made on behalf of the parties, certain facts also emerge which are required to be taken into consideration while considering the question of grant of bail. 24. Taking up Criminal Appeal No. 813/08 preferred by Jivan Raghu Varli, first, it has transpired from the submissions of the parties that he was a labourer, who was allegedly under the employment of Izharul Haq Abdul Hamid Shaikh, the appellant in the other two appeals. It has also transpired that he was one of a number of labourers who were allegedly involved in the transfer of certain containers from one vehicle to another. The other labourers who were involved in such operation are said to have been granted bail as they had no knowledge of the contents of the said boxes and were mer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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