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TMI Blog2024 (7) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in sight for the trial to conclude. In SHAHEEN WELFARE ASSOCIATION VERSUS UNION OF INDIA (UOI) AND ORS. [ 1996 (2) TMI 597 - SUPREME COURT] , this Court was considering a public interest litigation wherein certain reliefs were sought for undertrial prisoners charged with offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act) languishing in jail for considerable periods of time. This Court observed that while liberty of a citizen must be zealously safeguarded by the courts but, at the same time, in the context of stringent laws like the TADA Act, the interest of the victims and the collective interest of the community should also not be lost sight of. While balancing the competing interest, this Court observed that the ultimate justification for deprivation of liberty of an undertrial can only be on account of the accused-undertrial being found guilty of the offences for which he is charged and is being tried. If such a finding is not likely to be arrived at within a reasonable time, some relief(s) becomes necessary. Therefore, a pragmatic approach is required. This Court has, time and again, emphasized that right to life and personal liberty ens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench on 03.07.2024. 5. First Information Report (FIR) was lodged against the appellant by the informant Inspector Tej Bahadur Singh under Sections 121A, 489B and 489C of IPC. It came to be registered as Crime No. 01 of 2015. Informant stated that fake Indian currency notes of the denomination of Rs. 1,000 and Rs. 500, totalling a sum of Rs. 26,03,500.00, were recovered from the possession of the appellant on 22.02.2015 at about 09:10 PM from the Indo3 Nepal border. He was apprehended by a constable of the ATS team and brought to the ATS Headquarter. In the course of investigation, the appellant disclosed his name as Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari, resident of Narayani Parsa, Belwa, Nepal. In addition to the fake Indian currency notes, one Nepalese driving licence of the appellant and one Nepalese citizenship certificate also of the appellant were recovered besides two mobile phones. According to the police, appellant had confessed that he was engaged in the illegal trade of supplying counterfeit Indian currency notes in Nepal. The appellant was arrested on 23.02.2015. 6. Appellant had moved a bail application before the Additional Sessions Judge, Special Judge, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... independent review of the evidence collected during the course of investigation by the appropriate authority as required under Section 45 (2) of the UAP Act. According to the High Court, it was a clear case of non-application of mind as the State failed to comply with the mandatory statutory provision under Section 45 of the UAP Act. Thus, the sanction orders dated 25.08.2015 and 13.01.2017 were held to be invalid. Therefore, the trial court was barred from taking cognizance under Section 16 of the UAP Act. Consequently, the order of cognizance dated 27.05.2016 passed by the trial court in Case No. 940 of 2015 in so far the offence under Section 16 of the UAP Act was concerned as well as the charge to the extent of Section 16 of the UAP Act were quashed. The trial court was directed to proceed with the trial only with respect to the rest of the offences under Sections 489B and 489C IPC against the appellant. 12. State of U.P. assailed the order of the High Court dated 08.10.2021 before this Court by filing Special Leave to Appeal (Criminal) No. 861 of 2022. This Court by order dated 11.02.2022 issued notice and in the meanwhile directed stay of the order of the High Court dated 08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2024) SCC Online SC 109. 17. Submissions made by learned counsel for the parties have been duly considered. 18. We have already noticed that the appellant is in jail since 23.02.2015. Now we are in July 2024. Nine years have gone by in the meanwhile. As per the impugned order, evidence of only two witnesses have been recorded. In the course of hearing, the Bench had queried learned counsel for the parties as to the stage of the trial; how many witnesses the prosecution seeks to examine and evidence of the number of witnesses recorded so far. Unfortunately, counsel for either side could not apprise the Court about the aforesaid. On the contrary, learned state counsel sought for time to obtain instructions. Having regard to the fact that appellant is in custody for more than nine years now, we declined the prayer of the learned state counsel seeking further time. Learned counsel for the parties were also unable to tell us as to whether the State has moved the High Court after the order of this Court dated 20.02.2024 and whether any order has been passed by the High Court on the same. 19. As already noted above, appellant is in custody for more than nine years now. The impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a perusal of the case diary or the report made under Section 173 Cr.P.C. is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima-facie true. Sub-section (6) clarifies that the restrictions on granting of bail specified in sub-Section (5) would be in addition to the restrictions under the Cr.P.C. or any other law for the time being in force on granting of bail. 21. It is true that the appellant is facing charges under Section 489B IPC and under Section 16 of the UAP Act which carries a maximum sentence of life imprisonment, if convicted. On the other hand, the maximum sentence under Section 489C IPC is 7 years. But as noticed above, the trial is proceeding at a snail s pace. As per the impugned order, only two witnesses have been examined. Thus, it is evident that the trial would not be concluded in the near future. 22. It is trite law that an accused is entitled to a speedy trial. This Court in a catena of judgments has held that an accused or an undertrial has a fundamental right to speedy trial which is traceable to Article 21 of the Constitution of India. If the alleged offence is a serious one, it is all the more ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia (1994) 6 SCC 731, this Court had issued a slue of directions relating to undertrials in jail facing charges under the Narcotic Drugs and Psychotropic Substances Act, 1985 (briefly, the NDPS Act hereinafter) for a period exceeding two years on account of the delay in disposal of the cases lodged against them. In respect of undertrials who were foreigners, this Court directed that the Special Judge should impound their passports besides insisting on a certificate of assurance from the concerned Embassy/High Commission of the country to which the foreigner accused belonged and that such accused should not leave the country and should appear before the Special Court as required. 25. Similarly, in Shaheen Welfare Association Vs. Union of India (1996) 2 SCC 616 , this Court was considering a public interest litigation wherein certain reliefs were sought for undertrial prisoners charged with offences under the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA Act) languishing in jail for considerable periods of time. This Court observed that while liberty of a citizen must be zealously safeguarded by the courts but, at the same time, in the context of stringent laws like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of this Court in NIA Vs. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, this Court opined that the High Court in that case had virtually conducted a mini trial and determined admissibility of certain evidence which clearly exceeded the limited scope of a bail proceeding. Not only was it beyond the statutory mandate of prima-facie assessment under Section 43D (5) of the UAP Act, it was premature and possibly would have prejudiced the trial as well. It was in these circumstances that this Court in Zahoor Ahmad Shah Watali (supra) had to intervene leading to cancellation of the bail granted. 28. We are in respectful agreement with the reasoning given in K.A. Najeeb (supra) regarding the decision in Zahoor Ahmad Shah Watali (supra). This decision i.e. Zahoor Ahmad Shah Watali (supra) has to be read and understood in the context in which it was rendered and not as a precedent to deny bail to an accused under trial suffering long incarceration with no end in sight of the criminal trial. 29. Going back to K.A. Najeeb (supra), this Court thereafter proceeded to hold that Section 43D (5) of the UAP Act does not oust the ability of the constitutional courts to grant bail on grounds of violation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 43D (5) of the 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 chance of the accused evading the trial by absconsion, etc. 29.1. Declining to interfering with the order of the High Court, this Court in K.A. Najeeb (supra) dismissed the appeal of the Union of India. 30. Recently, this Court dealt with a matter where the appellant, a foreign national, is being prosecuted for offences punishable under Sections 8, 22, 23 and 29 of the NDPS Act. The appellant was arrested on 21.05.2014. The High Court had granted bail to the appellant vide the order dated 31.05.2022 but had incorporated certain conditions in the bail order because of which the appellant remained in custody despite having a bail order in his favour. One of the conditions was that the appellant, a Nigerian national, should obtain a certificate of assurance from the High Commission of Nigeria to the effect that the appellant would not leave the country and would appear before the trial court on the dates fixed. Another condition imposed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enlarged on bail. The investigating agency cannot be permitted to continuously peep into the private life of the accused enlarged on bail, by imposing arbitrary conditions since that will violate the right of privacy of the accused, as guaranteed by Article 21. If a constant vigil is kept on every movement of the accused released on bail by the use of technology or otherwise, it will infringe the rights of the accused guaranteed under Article 21, including the right to privacy. The reason is that the effect of keeping such constant vigil on the accused by imposing drastic bail conditions will amount to keeping the accused in some kind of confinement even after he is released on bail. Such a condition cannot be a condition of bail. *********** 9. A condition cannot be imposed while granting bail which is impossible for the accused to comply with. If such a condition is imposed, it will deprive an accused of bail, though he is otherwise entitled to it. 30.2. In so far the condition that the accused should drop a pin on the google map, this Court referred to the affidavit filed Google LLC wherein it was stated that the user has full control over sharing of pin with other users; pin l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb (supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us. 33. Thus, having regard to the discussions made above, we are of the considered view that continued incarceration of the appellant cannot be justified. We are, therefore, inclined to grant bail to the appellant. 34. Consequently, we pass the following order: - (i) The impugned order dated 03.04.2023 of the High Court is set aside and quashed; (ii) Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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