Javed Gulam Nabi Shaikh v. State of Maharashtra & Anr

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Crl.A.2787/2024 2024 INSC 645

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No 2787 of 2024 (Arising out of SLP (Crl) No 3809 of 204)

Javed Gulam Nabi Shaikh Appellant

Versus

State of Maharashtra and Another Respondents

ORDER

1 Leave granted.

2 This appeal arises from the order passed by the High Court of Judicature at

Bombay dated 5th February 2024 in Criminal Appeal No 1060 of 2023 by

which the High Court declined to release the appellant on bail in connection

with his prosecution under the provisions of the Unlawful Activities

(Prevention) Act 1967 (for short ‘UAPA’).

3 When this matter was taken up for hearing, both, the counsel appearing for

the National Investigation Agency (NIA) as well as the counsel appearing for

the State prayed for time. Having regard to the fact that the appellant is in

Chetan Kumar

Crl.A.2787/2024

custody past four years, we declined to adjourn the matter and proceeded to

hear the same on merits.

4 It appears from the materials on record that on 9 th February 2020 at about

9.30 am, on the basis of some secret information, the appellant herein was

apprehended by Mumbai Police of the DCB CID Unit VIII from a bus stop at

Terminal II Chhatrapati Shivaji Maharaj International Airport, Andheri. The

search of the person of the appellant was undertaken. The appellant had a

bag with him and from the bag 1193 numbers of counterfeit Indian currency

notes of the denomination of Rs 2,000 were recovered. The counterfeit notes

were seized and the appellant herein was arrested. The First Information

Report was registered at the Sahar Police Station for the offences punishable

under Sections 489B, 489C, 120B read with Section 34 of the Indian Penal

Code.

5 It is the case of the prosecution that the consignment of the counterfeit

notes was smuggled from Pakistan to Mumbai. Having regard to the nature of

the crime as alleged, the investigation was ultimately taken over by the NIA.

As a result, Case No RC/03/20/NIA/Mumbai came to be registered for the

offences enumerated above. The investigation further revealed that on 6 th

February 2020, the appellant visited Dubai, and while he was in Dubai, he is

said to have received the counterfeit notes from one of the absconding

accused persons. On 9th February 2020, he is said to have returned to India.

Crl.A.2787/2024

6 The materials on record further reveal that two co-accused were arrested in

connection with this offence and both are on bail as on today. So far as one

of the co-accused is concerned, the order granting bail to him is now the

subject matter of challenge before this Court.

7 Having heard the learned counsel appearing for the parties and having gone

through the materials on record, we are inclined to exercise our discretion in

favour of the appellant herein keeping in mind the following aspects:

(i) The appellant is in jail as an under-trial prisoner past four years;

(ii) Till this date, the trial court has not been able to even proceed to frame

charge; and

(iii) As pointed out by the counsel appearing for the State as well as NIA,

the prosecution intends to examine not less than eighty witnesses.

8 Having regard to the aforesaid, we wonder by what period of time, the trial

will ultimately conclude. Howsoever serious a crime may be, an accused has

a right to speedy trial as enshrined under the Constitution of India.

9 Over a period of time, the trial courts and the High Courts have forgotten a

very well settled principle of law that bail is not to be withheld as a

punishment.

10 In the aforesaid context, we may remind the trial courts and the High Courts

of what came to be observed by this Court in Gudikanti Narasimhulu &

Crl.A.2787/2024

Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We

quote:

“What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] :

"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."

11 The same principle has been reiterated by this Court in Gurbaksh Singh

Sibba v. State of Punjab reported in (1980) 2 SCC 565 that the object of

bail is to secure the attendance of the accused at the trial, that the proper

test to be applied in the solution of the question whether bail should be

granted or refused is whether it is probable that the party will appear to take

his trial and that it is indisputable that bail is not to be withheld as a

punishment.

12 Long back, in Hussainara Khatoon v. Home Secy., State of Bihar

reported in (1980) 1 SCC 81, this court had declared that the right to speedy

trial of offenders facing criminal charges is “implicit in the broad sweep and

content of Article 21 as interpreted by this Court”. Remarking that a valid

procedure under Article 21 is one which contains a procedure that is “reasonable, fair and just” it was held that:

“Now obviously procedure prescribed by law for depriving

Crl.A.2787/2024

a person of liberty cannot be “reasonable, fair or just” unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21.”

13 The aforesaid observations have resonated, time and again, in several

judgments, such as Kadra Pahadiya & Ors. v. State of Bihar reported in

(1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak reported in

(1992) 1 SCC 225. In the latter the court re-emphasized the right to speedy

trial, and further held that an accused, facing prolonged trial, has no option:

“The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial.”

14 In Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in 2023

INSC 311, this Court observed as under:

Crl.A.2787/2024 “21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry’s response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.

“loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.”

15 The requirement of law as being envisaged under Section 19 of the National

Investigation Agency Act, 2008 (hereinafter being referred to as “the 2008

Crl.A.2787/2024

Act”) mandates that the trial under the Act of any offence by a Special Court

shall be held on day-to-day basis on all working days and have precedence

over the trial of any other case and Special Courts are to be designated for

such an offence by the Central Government in consultation with the Chief

Justice of the High Court as contemplated under Section 11 of the 2008.

16 A three-Judge Bench of this Court in Union of India v. K.A. Najeeb

reported in (2021) 3 SCC 713] had an occasion to consider the long

incarceration and at the same time the effect of Section 43-D(5) of the UAP

Act and observed as under : (SCC p. 722, para 17)

“17. It is thus clear to us that the presence of statutory re- strictions like Section 43-D(5) of the 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. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being com- pleted within a reasonable time and the period of incarcer- ation already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safe- guard against the possibility of provisions like Section 43- D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

17 In the recent decision, Satender Kumar Antil v. Central Bureau of

Investigation reported in (2022) 10 SCC 51, prolonged incarceration and

inordinate delay engaged the attention of the court, which considered the

correct approach towards bail, with respect to several enactments, including

Crl.A.2787/2024

Section 37 NDPS Act. The court expressed the opinion that Section 436A

(which requires inter alia the accused to be enlarged on bail if the trial is not

concluded within specified periods) of the Criminal Procedure Code, 1973

would apply:

“We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code.”

18 Criminals are not born out but made. The human potential in everyone is

good and so, never write off any criminal as beyond redemption. This

humanist fundamental is often missed when dealing with delinquents,

juvenile and adult. Indeed, every saint has a past and every sinner a future.

When a crime is committed, a variety of factors is responsible for making the

offender commit the crime. Those factors may be social and economic, may

be, the result of value erosion or parental neglect; may be, because of the

stress of circumstances, or the manifestation of temptations in a milieu of

affluence contrasted with indigence or other privations.

Crl.A.2787/2024

19 If the State or any prosecuting agency including the court concerned has no

wherewithal to provide or protect the fundamental right of an accused to

have a speedy trial as enshrined under Article 21 of the Constitution then the

State or any other prosecuting agency should not oppose the plea for bail on

the ground that the crime committed is serious. Article 21 of the Constitution

applies irrespective of the nature of the crime.

20 We may hasten to add that the petitioner is still an accused; not a convict.

The over-arching postulate of criminal jurisprudence that an accused is

presumed to be innocent until proven guilty cannot be brushed aside lightly,

howsoever stringent the penal law may be.

21 We are convinced that the manner in which the prosecuting agency as well

as the Court have proceeded, the right of the accused to have a speedy trial

could be said to have been infringed thereby violating Article 21 of the

Constitution.

22 In view of the aforesaid, this appeal succeeds and is hereby allowed. The

impugned order passed by the High Court is set aside.

23 The appellant is ordered to be released on bail subject to the terms and

conditions which the trial court may deem fit to impose. However, we on our

own would impose the condition that the appellant shall not leave the limits

of Mumbai city and shall mark his presence at the concerned NIA office or

police station once every fifteen days. Any other condition which the trial

Crl.A.2787/2024

court may deem fit to impose, it may do so in accordance with law.

24 Pending applications, if any, stand disposed of.

..…....…........……………….…........J. [J B Pardiwala]

..…....…........……………….…........J. [Ujjal Bhuyan]

New Delhi; July 3, 2024 CKB

Crl.A.2787/2024

ITEM NO.17 COURT NO.16 SECTION II-A

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No.3809/2024

(Arising out of impugned final judgment and order dated 05-02-2024 in CRLA No.1060/2023 passed by the High Court of Judicature at Bombay)

JAVED GULAM NABI SHAIKH Appellant(s)

VERSUS

THE STATE OF MAHARASHTRA & ANR. Respondent(s)

(With IA No.67134/2024-EXEMPTION FROM FILING O.T.)

Date : 03-07-2024 These matters were called on for hearing today.

CORAM : HON'BLE MR. JUSTICE J.B. PARDIWALA HON'BLE MR. JUSTICE UJJAL BHUYAN (VACATION BENCH)

For Appellant(s) Mr. Sherali S. Khan, Adv. Mr. Sushant Kumar Yadav, Adv. Mr. Ankur Yadav, AOR

For Respondent(s) Mr. Abhikalp Pratap Singh, Adv. Mr. Siddharth Dharmadhikari, Adv. Mr. Aaditya Aniruddha Pande, AOR Mr. Bharat Bagla, Adv. Ms. Aagam Kaur, Adv. Mr. Aditya Krishna, Adv. Ms. Preet S. Phanse, Adv. Ms. Yamini Singh, Adv. Mr. Adarsh Dubey, Adv. Mr. Kartikey, Adv.

Crl.A.2787/2024

Mr. Shubhendu Anand, Adv. Mr. Siddharth Sinha, Adv. Mr. Madhav Sinhal, Adv. Mr. Amit Sharma B, Adv. Mr. Arvind Kumar Sharma, AOR

UPON hearing the counsel the Court made the following O R D E R

1 Leave granted.

2 The appeal is allowed in terms of the signed reportable order.

3 The appellant is ordered to be released on bail subject to the terms and conditions which the trial court may deem fit to impose. However, we on our own would impose the condition that the appellant shall not leave the limits of Mumbai city and shall mark his presence at the concerned NIA office or police station once every fifteen days. Any other condition which the trial court may deem fit to impose, it may do so in accordance with law.

4 Pending applications, if any, stand disposed of.

(CHETAN KUMAR) (POOJA SHARMA) A.R.-cum-P.S. Court Master (Signed reportable order is placed on the file)