Delhi High Court
Joginder Singh @ Joginder Rana vs National Investigation Agency on 17 January, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh, Dharmesh Sharma
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 17th January, 2025
+ CRL.A. 799/2023
JOGINDER SINGH @ JOGINDER RANA .....Appellant
Through: Mr. Nishant Rana, Ms. Rajani, Mr.
Manveen Dhanjal, Mr. Adarsh
Shandilya, Ms. Zeba Parveen, Mr.
Deepak, Mr. Shubham Singh, Mr.
Rajvant & Mr. Jatin, Advs.
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Mr. Rahul Tyagi, SPP with Mr. Jatin,
Mr. Amit Rohilla & Mr. Aniket Singh,
Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE DHARMESH SHARMA
JUDGMENT
Prathiba M. Singh, J.
1. This hearing has been done through hybrid mode.
Background:
2. The present appeal has been filed on behalf of the Appellant-Joginder
Singh @ Joginder Rana under Section 21 of the National Investigation
Agency Act, 2008 (hereinafter, the ‘NIA Act, 2008‘) assailing the impugned
order dated 10th May, 2023, passed by the Special Judge (NIA), ASJ-03,
Patiala House Courts, New Delhi in FIR No. RC-39/2022/NIA/DLI dated
26th August, 2022, registered under Section 120 of the Indian Penal Code,
1860 (hereinafter, the ‘IPC, 1860′) and Section 17/18/18B of the Unlawful
Activities (Prevention) Act, 1967 (hereinafter, ‘UAPA, 1967’), at the P.S.
CRL.A. 799/2023 Page 1 of 29
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
NIA, New Delhi. Further, vide the present petition, the Appellant seeks grant
of Regular bail.
3. Vide the impugned order the application of the Appellant seeking grant
of Regular bail has been dismissed. The relevant portion of the order dated
10th May, 2023 is extracted hereinunder for a ready reference:
“Ld. Counsel for the accused/applicant has further
relied upon the judgment of Apex Court in Guddan @
Roop Narayan v. State of Rajasthan. There can hardly
be any denial to the legal proposition laid down in that
judgment. It is no doubt established legal position that
court would grant the relief of bail as a rule and denial
of the same would be an exception. However, this
general legal proposition cannot be applied in cases
involving offence of UA(P) Act where relief of bail would
be subject to the provisions of section 43D (5) of UA(P)
Act. Therefore, keeping in view the allegations against
the accused/applicant mentioned in para 17.75 and
17.76 and taking into consideration the protected
witnesses statement and totality of entire evidence, I find
that accused has failed to satisfy the threshold laid down
in section 43D (5) and therefore, is not entitled for the
bail. Bail application is accordingly dismissed.”
4. A brief background of the present case is that a raid was conducted by
the National Investigation Agency (‘NIA’) on 12th September, 2022 at the
residential premises of the Appellant, being, 438, Laxmi Garden,
Yamunanagar, Haryana. During the said raid, the NIA recovered various
weapons, ammunition, bank passbooks, mobile phones, etc. The same were
seized by the NIA vide seizure memo dated 12th September, 2022. The
Appellant was arrested on 1st October, 2022.
5. The Appellant herein then sought bail from the NIA Court. However,
vide the impugned order dated 10th May 2023, the Special Judge (NIA), ASJ-
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Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
03, Patiala House Courts, New Delhi dismissed the bail application filed on
behalf of the Appellant. Hence, the present appeal.
6. Notice was issued in the present appeal on 21st November, 2023.
Thereafter, the Court substantially heard the matter on 25th September, 2024,
28th November, 2024 and 15th January, 2025.
7. On the last date of hearing i.e. 15th January, 2025 detailed submissions
were heard and thereafter the Court had directed as under: –
“1. This hearing has been done through hybrid
mode.
2. Both parties have made substantial arguments.
3. Let the Appellant’s Counsel confirm the factum
with respect to the current whereabouts of both sons of
the Appellant and whether the second son i.e., Surya
Pratap @ Noni who is on bail currently, is following up
and appearing before the concerned Court regularly or
not.
4. Insofar as the National Investigation Agency is
concerned, let a clarification be obtained as to what led
to the search which was conducted in the Appellant’s
premises on 12th September, 2022.
5. The statements of the protected witnesses
which have been handed over to the Court today shall
for the time being, be kept in safe custody with the Court
Master.
6. List on 17th January, 2025 at item no.1.”
8. As per the above order, the NIA was to clarify the reason as to what
was the basis of the search conducted in the Appellant’s premises. Further,
the Appellant was to clarify the status of the whereabouts of the two sons of
the Appellant as also whether the second son of the Appellant, Mr. Surya
Pratap@Noni, who is on bail currently, is following up and appearing before
the concerned Court or not.
CRL.A. 799/2023 Page 3 of 29
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
Submissions:
9. Mr. Nishant Rana, ld. Counsel appearing on behalf of the Appellant
submits the following:
i. There is no incriminating evidence against the Appellant. The only
reason why the Appellant appears to have been arrested by the NIA is
because of the fact that the son of the Appellant is alleged to be part of
Lawrence Bishnoi (hereinafter, ‘LB’) gang. The Appellant is nowhere
connected or aware of any of the allegations which have been made
against him.
ii. The Appellant is portrayed to be a member of the LB gang but he has
only two cases against him. Out of the said two cases, one is where the
Appellant has been implicated under Section 307 read with Section
120B IPC. In this case, the Appellant has been granted bail. In the
second case against the Appellant, the Appellant was convicted under
Section 174A IPC, 1860, the period for which has already been
undergone. No other case is pending against the Appellant.
iii. The present allegations against the Appellant are only raised because
the Appellant is the pairokar for both his sons, i.e. Mr. Virender Pratap
@ Kala Rana and Mr. Suraj Pratap@ Noni.
iv. The evidence against the Appellant to substantiate the allegations by the
NIA are given by Mr. Simranjeet Singh@ Baba and another Mr.
Abhisekh@ Panjeta. Both of these witnesses are unreliable as they are
accused in another FIR, being FIR No. 408/2022 dated 13th September
2024. Further, Mr. Abhishek was residing with the Appellant at the
residence, when the search was conducted. It is possible that he plantedCRL.A. 799/2023 Page 4 of 29
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
the weapons and other seized material merely to implicate the
Appellant.
v. The Appellant is 59 years of age and has been unnecessarily implicated
in the charge sheet. The search of the Appellant’s residence took place
between 6:10 am to 8:00 pm on 12th September, 2022. During the
search, no video recording was done.
vi. The trial has not yet started in the present matter. There are more than
four hundred witnesses who were to be examined and therefore, the
Appellant is entitled to bail.
vii. The statements of the protected witnesses which are relied upon by the
NIA cannot be placed credence upon as they were all recorded post the
arrest of the Appellant. Reliance is place on Devangana Kalita v. State
of Delhi NCT (2021 SCC Online Del 3255) to argue that in such
circumstances, bail ought to be granted.
viii. Considering the number of witnesses and the fact that the Appellant has
been in custody since 2022 because the trial could not be concluded, is
enough to release the Appellant on bail as his right under Article 21 i.e.,
the right to life and liberty of the Appellant cannot be curtailed in the
matter. Reliance is placed upon
• Sheikh Javed Iqbal v. State of Uttar Pradesh (2024 INSC 534),
• Javed Gulam Nabi Shaikh v. State of Mahrashtra & Anr (2024
SCC Online SC 1693),
• Jalaluddin Khan v. Union of India (2024 INSC 604),
• Union of India v. K.A. Najeeb [(2021) 3 SCC 713], and;
• Vernon v. State of Maharashtra & Anr (2023 INSC 655)
ix. Answering the query of the Court made on 15th January, 2025 the ld.
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Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
Counsel of the Appellant submitted that the second son of the
Appellant, Mr. Suraj Pratap@ Noni is not in touch with his mother who
is living in Yamunanagar, Haryana and hence, his whereabouts are not
known at the present moment.
10. Mr. Rahul Tyagi, ld. Counsel appearing on behalf of the NIA submits
as under:
i. The Appellant’s son-Virender Pratap @ Kala Rana had absconded from
India earlier and steps had to be taken by the State agencies to extradite
him from Thailand. He is currently in custody. The second son of the
Appellant-Surya Pratap @ Noni has been given bail. However, he is
still absconding.
ii. Substantial amount of cash and weapons have been recovered from the
Appellant’s residence and search memo/seizure memo is fully
admitted. Moreover, the Appellant poses a flight risk as he is a frequent
traveller to Thailand and also is involved in sending weapons and
money there.
iii. Answering the query of the Court made on 15th January, 2025, Mr.
Tyagi, ld. Counsel submits that on the basis of the intelligence which
was gathered and the confidential information which was received,
multiple raids were conducted simultaneously on 12th September, 2022
at various places. A total number of twenty-two raids were conducted
on the same date and the seizure was affected accordingly. The
Appellant’s residence was one such place where the raid was conducted.
iv. Reliance has been made upon the search and seizure memo dated 12th
September, 2022 as also the statements of various protected witnesses,CRL.A. 799/2023 Page 6 of 29
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
namely, PW-407, PW-408, PW-409 and PW-413. It is submitted by Mr.
Tyagi, ld. Counsel that the said protected witnesses testimony coupled
with the seizure of a large quantity of arms, leads to only one conclusion
that the Appellant is also guilty and is unable to prove his innocence.
Thus, the rigorous of 43D(5) of the UAPA needs to be applied in the
present case.
v. The second son, Mr. Suraj Pratap@ Noni has taken responsibility for
another incident which has occurred in Haryana i.e., a double murder
case. Reliance is placed on a statement put up by Noni on his twitter
handle.
Analysis:
11. In the present appeal, the Special NIA Court, vide the impugned order,
has rejected the prayer for bail made on behalf of the Appellant. The reasoning
given by the Court is as under: –
“Having considered the submissions at bar,
Accused/applicant in the present case being involved
inter alia for offence u/s 18 of UA(P) Act which is
covered under Chapter VI of the Act, therefore, for relief
of bail accessed/applicant is required to satisfy
conditions as provided u/s 43D (5) of the Act. Section
43D of UA(P) Act contemplates that accused of an
offence punishable under Chapter IV and V of UA(P) Act
shall not be released on ball if, perusal of report u/s 173
Сr.P.C there is a reasonable ground for believing that
the accusation against such person is prima facie true.
On account of specific bar, bail to accused of offence
falling under Chapter IV and VI of Act cannot be granted
if evidence against such accused upon prima facie,
assessment, satisfy the court that accusation against him
is substantive and true. It is not that accused cannot be
granted relief of bail in such cases. Bail can be grantedCRL.A. 799/2023 Page 7 of 29
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
where court on broad assessment of material/evidence
etc. find that accusation is without basis and does not
appear to be authenticated. Such assessment of evidence
for bail would however be not similar to as to be done at
stage of charge or at final stage of trial.
Keeping such legal proposition in mind if we examine
the case against the accused/applicant, no doubt being
matter of record that when raid was conducted on
12.09.2022 at the premises, which as per seizure memo
D-18 is shown to be the place belonging to Virender
Pratap @ Kala Rana (A-4). In that raid many
incriminating evidence including mobile phones,
financial documents as well as arms and ammunitions
were recovered including 5 pistols including one 09 mm
pistol, 100 of cartridges of various bores including 9 mm
and 7.62 x 25 mm as well as foreign made cartridges. It
is around 18 days of alleged seizure of arms and
ammunitions, accused/applicant has been arrested later
on 01.10.2022. Even if the recovery of such consignment
of arms and ammunitions may not be directly
attributable to the accused/applicant, still there is
statement of protected witness Y-7 (PW-19) recorded u/s
161 Cr.P.C, wherein witness specifically mentioned
about the accused/applicant and stated that
accused/applicant Joginder Singh and his son Kala
Rana are closely associated with Lawrence Bishnoi,
Goldy Brar, Kala Jatheri and they worked together for
Harvinder Singh Rinda and Babbar Khalsa
International Terrorist Organization in addition to
extortion, illegal liquor sale and illegal arms purchase
as well as running crime syndicate. Similarly, another
protected witness X-3 in his statement recorded u/s 164
Cr.P.C recorded before Ld.MM specifically named
accused/applicant Joginder Singh being owner of
vehicle no. HR 22 K 7761, in which arms and
ammunitions were being transported. That protected
witness further stated that under the active connivance
and involvement of accused Kala Rana, Surya Pratap as
CRL.A. 799/2023 Page 8 of 29
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
well as Joginder Singh, arms and ammunitions were
being smuggled in illegal manner.
Statement of those two protected witnesses clearly
implicate the accused/applicant being part of conspiracy
Therefore, recovery of huge consignment of arms and
ammattions from the house where the accused applicant
was residing, even if may not be directly attributable to
him, still there is statements of protected witnesses
clearly establish the involvement of the
accused/applicant.
Ld. Counsel for the accused/applicant though submits
that immediately on the next date of raid conducted at
the house i.e. on 13.09.2022, FIR no. 408/2022 was
registered at PS Sadar Yamunanagar, in which accused
Abhishek @ Panjeta and Simranjeet Singh Bawa were
involved. It is submitted that in that case also there was
recovery of arms and ammunitions which accused of that
case owned to be their. Ld. Counsel has also referred to
disclosure statement of accused Simranjeet Singh and
Abhishek @ Panjeta recorded in that case FIR no.
408/2022 of PS Sadar Yamunanagar. Ld. Counsel has
also annexed with the bail application, bail orders
passed by Ld. ASJ, Yamunanagar.
Having considered those documents though these
documents of FIR no. 408/2022 of PS Sadar
Yamunanagar being not part of judicial record of this
case can hardly be taken into consideration. Moreover,
if we go through the FIR no. 408/2022, it would clearly
show that upon receipt of secret information, local
police arrested Simranjeet Singh @ Bawa alongwith one
country made pistol of 0.9 mm which was loaded and
there were five live cartridges. Similarly another
accused Shubham Saini was arrested by the local police
with country made katta of 315 bore with certain live
cartridges. Disclosure statement recorded in that case in
CRL.A. 799/2023 Page 9 of 29
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
itself being inadmissible cannot be taken into
consideration moreover, relates to recovery of that case.
Therefore, can hardly be of any help or use for alleged
recovery in the present case.
Ld. Counsel for the accused/applicant has further relied
upon the judgment of Apex Court in Guddan @ Roop
Narayan v. State of Rajasthan. There can hardly be any
denial to the legal proposition laid down in that
judgment. It is no doubt established legal position that
court would grant the relief of bail as a rule and denial
of the same would be an exception. However, this
general legal proposition cannot be applied in cases
involving offence of UA(P) Act where relief of bail would
be subject to the provisions of section 43D (5) of UA(P)
Act. Therefore, keeping in view the allegations against
the accused/applicant mentioned in para 17.75 and
17.76 and taking into consideration the protected
witnesses statement and totality of entire evidence, I
find that accused has failed to satisfy the threshold laid
down in section 43D (5) and therefore, is not entitled
for the bail. Bail application is accordingly dismissed.”
12. A perusal of the above order would show that the NIA Court has been
persuaded not to grant bail in this matter considering the large amount of arms
and ammunitions which were recovered from the Appellant’s premises during
the raid on 12th September, 2022.
13. In the present appeal, the Court has heard the submissions of the parties
and has considered the material on record.
14. As per the NIA, the entire investigation in this case started when a
terrorist organization, Babbar Khalsa International (‘BKI’) was being
activated and certain members of the said organization had joined hands with
the LB criminal syndicate. According to the NIA, the BKI was involved in
CRL.A. 799/2023 Page 10 of 29
Signature Not Verified
Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
the various illegal acts in India especially in Punjab and is involved in killings
of certain celebrities such as Sidhu Moosewala, in Punjab. The ideological
objective of this organisation, as per the NIA, is to revive the Khalistan
movement in Punjab.
15. The Appellant has two sons, one is Virender Pratap@ Kala Rana and
the second is Surya Pratap@ Noni. According to the NIA, the elder son Kala
Rana had initially absconded from India and extradition proceedings had to
be taken in Thailand to bring him to India. He is currently in custody. The
second son, Noni, was also involved in various criminal activities. However,
he was in judicial custody for some time but thereafter, was released on bail.
Presently, as per the facts which have emerged, he is absconding.
16. Coming to the facts of the present case, in FIR No.RC-
39/2022/NIA/DLI, information is alleged to have been received by the
Special Cell regarding various illegal and unlawful activities. Pursuant to the
same, an FIR was registered. It is apprehended that there is a criminal
syndicate gang which is part of a larger conspiracy between the BKI and LB
who were conspiring to carry out various criminal activities.
17. As part of the investigation in the said case, a raid was conducted at the
house of the Appellant on 12th September, 2022. In the said raid, the NIA
seized the following goods.
S. Description of the No. of Remarks
No. Documents/Articles/Electronics pages
Gadgets /Artic
le
1) CP Plus DVR, Model No.CP-UVR- 01 Found from the
0401E1S-V3, Serial No DVR stand fitted in
No.CP2E050EEPAG08826 the east wall of the
south west corner
CRL.A. 799/2023 Page 11 of 29
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
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bed room on the
ground floor.
2) White colour Samsung Mobile Model GT- 01 Found from table
19300, SSN No.19300GSMH, IMEI No located on the east
353818/05/312351/7 side of south west
comer bed room
on the ground
floor.
3) iPhone Silver Colour having IMEI No. 01 Found from table
356645080900824. located on the east
side of south west
comer bed room
on the ground
floor.
4) Samsung Duos dark blue colour phone 01 Found from table
IMEI No. (1)35401009139244/01 (2) located on the east
354011091392448/01 with Vodafone side of south west
SIM No,89910123000004186587SY. comer bed room
on the ground
floor.
5) Samsung Duos white colour phone IMEI 02 Found from table
No.(1) 354468088261004 (2) located on the east
354469088261002 with Airtel SIM side of south west
No.8991000900730004630U corner bed room
on the ground
floor.
6) iPhone Silver white colour having IMEI 01 Found from table
No.351981061156614. located on the east
side of south west
comer bed room
on the ground
floor.
7) iPhone Black colour having IMEI No. (1) 02 Found from table
356499101510620 (2) located on the east
356499101541559 with Airtel 40 SIM side of south west
No.89910009028311952180. corner bed room
on the ground
floor.
8) iPhone silver colour having IMEI 01 Found from the
No.355674071580909. wooden wardrobe
located on the
north side of the
CRL.A. 799/2023 Page 12 of 29
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KUMAR VATS
Signing Date:22.01.2025
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south west corner
bed room in the
ground floor.
9) iPhone white colour in locked condition 01 Found from the
and cannot be switched off. wooden wardrobe
located on the
north side of the
south west comer
bed room in the
ground floor.
10) Dark Gray colour Samsung Mobile Phone 01 Found from the
in switched condition and scratches on wooden wardrobe
the left top screen. located on the
north side of the
south west comer
bed room in the
ground floor.
11) Blue colour Samsung Mobile phone 01 Found from the
Model SM-J415F/DS, IMEI (1) wooden wardrobe
No.353414/10/790596/6 (2) located on the
353415/10/790596/3 north side of the
south west corner
bed room in the
ground floor.
12) Steel Colour HP Pen Drive 64 GB with 01 Found from a
writings v220w on it. green colour kit in
the north side
wooden wardrobe
of the south west
corner bed room
in the ground
floor.
13) Red Colour Pen Drive 16 GB Cruzer blade 01 - do-
having a white tag on it.
14) Red Colour Pen Drive - 16 GB Cruzer 01 - do-
blade.
15) Steel Colour Sony 32 GB Pen drive 01 - do-
16) Red Colour Pen Drive 32 GB Cruzer 01 - do-
blade.
17) Red Colour Pen Drive 4 GB Cruzer blade. 01 - do -
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KUMAR VATS
Signing Date:22.01.2025
11:30:34
18) HDFC Bank passbook with A/c No. 50 01 Found from a
100227964985 in the name of Surya white colour kit in
Pratap Singh. the north side
wooden wardrobe
of the south west
19) State Bank of India passbook Savings 01 Found from a
Bank A/ c No.20282207389 in the name white color kit in
of Joginder Singh the north side
wooden wardrobe
of the south west
corner bed room
in the ground
floor.
20) Punjab National Bank pass book Savings 01 - do-
Bank A/c No.10312010012350 in the
name of Neelam Rani
21) Haryana Grameen Bank Passbook A/c 01 - do-
No.82010100003089 in the name of
Joginder Singh.
22) Oriental Bank of Commerce Paasbook 01 - do-
A/c No.10312010012350 in the name of
Neelam Rani.
23) Axis Bank Passbook A/c No. 9190l 01 - do-
0096250789 in the name of Joginder
Singh.
24) HDFC Bank passbook with A/c 01 - do-
No.50100155538459 in the name of
Joginder Singh.
25) Haryana Grameen Bank Passbook A/c 01 - do-
No. 8201NG 00000093 in the name of
Joginder Singh
26) Punjab National Bank Savings Fund Pass 01 - do-
book with A/c No. 4682000l00008942
in the name of Joginder Singh
27) Oriental Bank of Commerce A/c 01 - do-
No.10312010004630 in the name of
Joginder Singh.
28) Oriental Bank of Commerce A/c 01 - do-
No.10312010012350 in the name of
Neelam
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Digitally Signed By:PRAMOD
KUMAR VATS
Signing Date:22.01.2025
11:30:34
29) Xerox copy of Aadhar Card of Varinder 01 - do -
Pratap Singh having Aadhar No.4927
8738 6586
30) Eley Grand Prix Cartridge, Eley loaded 09 Found from the
Smokeless Diamond, Made in great drawer of cot
Britain with writings “12 Eley-Kynoch located in the
12” in the metallic part (in a pouch) south west corner
bed room in the
ground floor in a
brown belt like
pouch. This pouch
is also packed
together
31) Plastic fibre and metallic made Pistol 01 Found from the
with magazine (The serial number and head side
make looks tampered). Lengths is 17 CM cupboard of the
cot in the south
west corner of the
bed room in the
ground floor.
32) Live ammunition 9 mm cartridge LOT 70 Found from the
No. KF 20 in 1 Plastic box (35 each) head side
cupboard of the
cot in the south
west corner bed
room of the
ground floor along
with item No 31
33) Live ammunition 9 mm cartridge LOT 30 Found from the
No. KF 20 in 1 plastic box (30 Nos of head side
cartridge) cupboard of the
cot in the north
west corner bed
room of the first
floor.
34) Live ammunition 7.62 TT PPU Cartridge 10 Found inside a
(found in a VIVO Y21T mobile box) white colour VIVO
mobile phone Box
(IMEI No.(1)
86631805125159
2 (2)
86631805125158
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KUMAR VATS
Signing Date:22.01.2025
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4) in the head side
cub bord of the cot
in the south west
corner bed room
of the first floor.
35) Dark Blue Redmi Mobile Phone covered 01 Found from the
with bubble wrap paper and black downside drawer
colour electrical insulation Tape. of the cot located
in the south west
comer bed room of
first floor.
The item was
opened using a
knife to find the
contents in the
wrapped cover
36) Black colour iPhone with white colour 01 -do -
charger cable wrapped with bubble
wrap paper and red and black electrical
insulation Tape.
37) Golden Colour MI Phone with small 01 -do -
connecting cable wrapped with bubble
wrap paper and black electrical
insulation Tape.
38) Light Blue metallic colour Realme mobile 01 -do -
phone wrapped with bubble wrap paper
and black electrical insulation Tape.
39) Dark Blue red.mi mobile phone wrapped 01 -do -
with bubble wrap paper and red and This Dark Blue
black colour electrical insulation Tape. redmi mobile
phone was found
along with a dark
brown opium like
substance in a
closed plastic
pouch and both
were found
together wrapped
with bubble wrap
paper and red and
black colour
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Signing Date:22.01.2025
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electrical
insulation
Tape.
40) Dark brown opium like substance in a 01 Found inside item
closed plastic pouch having 23.4 grams No.39 together in
as weighed by weighing machine a wrapped
brought by local Police. condition
41) 2 Nos Blue colour keypad Samsung 01 Found from the
mobile phone with red black coloured downside
neckband head set wrapped with black drawer of the cot
colour electrical insulation Tape. located in the
south west comer
bed room of first
floor.
The item was
opened using a
knife to find the
contents in the
wrapped cover
42) One MI Black coloured charger adapter, 01 -do -
one ERD charger adapter along with two
white colour data cable, one black colour
data cable and one head set wrapped
with black colour electrical insulation
Tape.
43) One Xiaomi power adapter Black colour, 01 – do –
one ERD mobile charger adapter along
with and one head set wrapped with
black colour electrical insulation Tape.
44) One metallic and wooden pistol with 01 Found in the
writing "BERETTA GARDONE TV GAL drawer under the
765 vi vi PAT, MADE IN ITALY" with two cot located in the
magazines. south west corner
bed room inside a
black coloured
back pack bag.
45) One steel, metallic and fibber pistol 01 - do -
(19.5 cm length and Piston 10.5 cm
length\ with two magazines.
46) One steel and plastic fibre pistol (15.5 cm 01 - do -
barrel length and 9.5 cm Piston length)
with two magazines.
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47) One metallic and wooden made pistol 01 - do -
with writing "BERETTA GARDONE TV
GAL 765 MM PAT, MADE IN ITALY" with
two magazine.
48) Cartridges "BOULT LONG RANGE 10 - do -
Smokeless powder Components from
ITALY, MADE IN INDIA" with writing
KUVHIMA 12 in the metallic top.
49) Live ammunition 7.62 x 25 S&B cartridge 12 - do -
50) Live ammunition KF 32 5 & W.L 04 - do -
cartridge.
51) Live ammunition 7 .65 KF cartridge. 21 - do -
52) 3 Nos Empty Fired (7.62 x 25 S&B) 03 - do -
Cases( in a leather pistol pouch)
53) One Steel, Brass and wooden gun with 48 01 - do -
cm Barrel length and with inscription
"312" in brass metal parts on both side
along with a small steel chain
54) A black colour back pack bag without 01 Found in the
maker name. drawer under the
cot located in the
south west corner
bed room. The
items 44 to 53
were found in this.
18. The said seizure which was effected from the Appellant’s home in 438,
Laxmi Garden, Yamunanagar, Haryana led to his arrest. The Appellant was
arrested on 1st October, 2022.
19. The case of the Appellant is that he was having no knowledge of the
goods and articles including the weapons which were seized from his
residence. According to him, the same were planted in some manner and the
Appellant has been implicated.
20. The question is whether the Appellant is entitled to bail in these facts
and whether the conditions under Section 43D(5) UAPA, 1967 are satisfied.
Section 43D(5) of the UAPA, 1967 is set out below for a ready reference:
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“[43D. Modified application of certain provisions of
the Code.
(1) …..(4)
(5) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under
Chapters IV and VI of this Act shall, if in custody, be
released on bail or on his own bond unless the Public
Prosecutor has been given an opportunity of being
heard on the application for such release:
Provided that such accused person shall not be
released on bail or on his own bond if the Court, on a
perusal of the case diary or the report made under
section 173 of the Code is of the opinion that there are
reasonable grounds for believing that the accusation
against such person is prima facie true.
(6) The restrictions on granting of bail specified in sub-
section (5) is in addition to the restrictions under the
Code or any other law for the time being in force on
granting of bail.
(7) Notwithstanding anything contained in sub-sections
(5) and (6), no bail shall be granted to a person accused
of an offence punishable under this Act, if he is not an
Indian citizen and has entered the country
unauthorisedly or illegally except in very exceptional
circumstances and for reasons to be recorded in
writing.]”
The above provision in the UAPA has been discussed in several decisions by
the Supreme Court and this Court, though in varying fact situations. Some of
the decisions are discussed hereinbelow.
21. In Gurwinder Singh v. State of Punjab and Anr. [(2024) 5 SCC 403]
the Supreme Court has discussed the scope of Section 43-D (5) of the UAPA,
1967 and observed that, unlike in conventional bail matters, where bail is a
rule, and jail is an exception, under the UAPA, 1967 the intention is to make
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the ‘bail an exception and jail a rule’. The Supreme Court provided clear
guidelines as to the manner in which grant of bail under Section 43D(5) of the
UAPA, 1967 is to be considered. The relevant portion of the said decision is
extracted below:
“26. The conventional idea in bail jurisprudence vis-à-
vis ordinary penal offences that the discretion of Courts
must tilt in favour of the oft-quoted phrase ‘bail is the
rule, jail is the exception’ – unless circumstances justify
otherwise – does not find any place while dealing with
bail applications under UAP Act. The ‘exercise’ of the
general power to grant bail under the UAP Act is
severely restrictive in scope. The form of the words used
in proviso to Section 43D (5)– ‘shall not be released’ in
contrast with the form of the words as found in Section
437(1) CrPC – ‘may be released-suggests the intention
of the Legislature to make bail, the exception and jail,
the rule.
27. The Courts are, therefore, burdened with a sensitive
task on hand. In dealing with bail applications under
UAP Act, the Courts are merely examining if there is
justification to reject bail. The ‘justifications’ must be
searched from the case diary and the final report
submitted before the Special Court. The legislature has
prescribed a low, ‘prima facie’ standard, as a measure
of the degree of satisfaction, to be recorded by Court
when scrutinising the justifications [materials on
record]. This standard can be contrasted with the
standard of ‘strong suspicion’, which is used by Courts
while hearing applications for ‘discharge’. In fact, the
Supreme Court in Zahoor Ahmad Watali has noticed
this difference, where it said:
“In any case, the degree of satisfaction to be recorded
by the Court for opining that there are reasonable
grounds for believing that the accusation against the
accused is prima facie true, is lighter than the degree of
satisfaction to be recorded for considering a dischargeCRL.A. 799/2023 Page 20 of 29
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application or framing of charges in relation to offences
under the 1967 Act.”
28. In this background, the test for rejection of bail is
quite plain. Bail must be rejected as a ‘rule’, if after
hearing the public prosecutor and after perusing the
final report or Case Diary, the Court arrives at a
conclusion that there are reasonable grounds for
believing that the accusations are prima facie true. It
is only if the test for rejection of bail is not satisfied –
that the Courts would proceed to decide the bail
application in accordance with the ‘tripod test’ (flight
risk, influencing witnesses, tampering with evidence).
This position is made clear by Sub-section (6) of
Section 43D, which lays down that the restrictions, on
granting of bail specified in Sub-section (5), are in
addition to the restrictions under the Code of Criminal
Procedure or any other law for the time being in force
on grant of bail.
29. On a textual reading of Section 43 D(5) UAP Act,
the inquiry that a bail Court must undertake while
deciding bail applications under the UAP Act can be
summarised in the form of a twin-prong test:
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged ‘accusations’
make out an offence under Chapter IV or VI of the
UAP Act
1.2 Such examination should be limited to case diary
and final report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail
in light of the general principles relating to grant of
bail under Section 439 CrPC (‘tripod test’)?
On a consideration of various factors such as nature
of offence, length of punishment (if convicted), age,
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character, status of accused etc., the Courts must ask
itself:
2.1 Whether the accused is a flight risk?
2.2 Whether there is apprehension of the accused
tampering with the evidence?
2.3 Whether there is apprehension of accused
influencing witnesses?
22. The question of entering the ‘second test’ of the
inquiry will not arise if the ‘first test’ is satisfied. And
merely because the first test is satisfied, that does not
mean however that the accused is automatically
entitled to bail. The accused will have to show that he
successfully passes the ‘tripod test’.”
22. The ld. Counsel for the Appellant has relied on the judgment of
Devangana Kalita v. State of Delhi NCT (supra) to argue that if no offence
under section 15/ 17/18 UAPA, 1967 is made out against the Appellant on a
prima facie appreciation of the subject charge-sheet and the material collected
and cited by the prosecution, the additional conditions, limitations and
restrictions on grant of bail under section 43D(5) of UAPA, 1967 do not
apply. Hence, bail must be decided on the usual and ordinary principles of
grant of bail, i.e., the ‘triple test’ of assessing the flight risk, evidence
tampering and witness intimidation.
23. Reliance is also placed on Union of India v K.A. Najeeb (supra) by the
ld. Counsel on behalf of the Appellant to argue that the liberty granted by Part
III of the Constitution of India would cover within its protective ambit not
only due procedure and fairness but also access to a speedy trial.
24. In K.A. Najeeb case (supra) the Court therein was confronted with a
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circumstance wherein, except the Respondent-Accused, the other co-Accused
had already undergone trial and was sentenced to imprisonment of not
exceeding eight years. The Court therein was considering bail grounded in the
anticipation of the impending sentence i.e., the sentence the Respondent
would serve in case conviction is made out. The Respondent therein had
already served more than five years and considering this and other factors, the
Court had granted bail.
25. The present case completely distinguishes itself from the K.A. Najeeb
case. In the present case, the Appellant was arrested on 1st October, 2022 and
the chargesheet has been drawn by the NIA on 24th March, 2023. The
Appellant has been in custody for approximately 2 years. Moreover, the extent
of seizure in the present case, completely distinguishes from the facts in K.A.
Najeeb (supra).
26. Ld. Counsel appearing on behalf of the Appellant has further relied on
Vernon v. State of Maharashtra & Anr. (supra). In the said case, the Court
has granted bail to the Appellants therein considering inter alia that the
witness statements do not refer to any terrorist act alleged to have been
committed on behalf of the Accused persons.
27. In the present case however, the NIA has presented the testimonies of
protected witnesses being, PW-407, PW-408 and PW-413. The statements of
the protected witnesses which have been placed before the Court by the NIA
would show that apart from his two sons, the Appellant was also acting as a
source of weapons to the gang members of LB.
28. One protected witness, PW-407 who was an inmate with LB in jail has
given a statement that LB used to tell his accomplices to coordinate with the
Appellant who is the father of Kala Rana for delivery and supply of weapons
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to members of his gang. Another protected witness, PW-408 in his statement
said that the Appellant, who is the father of Kala Rana had received money
sent by his son Kala Rana for Panjeta who would collect it from the Appellant.
This witness also stated that weapons could be arranged through the
Appellant. PW-413 who was also from Yammunanagar, Haryana had full
details of the dispute between the Appellant’s family and the local MLA
Dilbag Singh. He was also aware of the various physical attacks which had
taken place between the Appellant’s family and the MLA’s family. He stated
that he would collect money from the Appellant and his wife Neelam for
depositing in the bank. Panjeta had once informed him that weapons of the
LB gang were stored at the Appellant’s residence.
29. A perusal of the said testimonies leaves the Court with no iota of doubt
that granting bail to the Accused at this stage, would be detrimental to the
safety and security of the country. The testimonies of these protected
witnesses reveal a serious situation and the same cannot be brushed aside.
30. The ld. Counsel on behalf of the Appellant has further relied on the
judgment of the Supreme Court in Sheikh Javen Iqbal v. State of U.P.
(supra) to emphasise the need for speedy trial. The ld. Counsel submits that
the present case will be prolonged at the stage of trial due to the large number
of witnesses who are yet to be examined.
31. This Court while acknowledging that speedy trial is necessary as a
Constitutional prescription, observes that in cases involving anti-national
activities and terrorism on an international scale, long incarceration in itself
ought not to lead to enlargement on bail when facts show involvement in such
activities which can have a national and transnational impact.
32. Thus, insofar as the decisions which have been cited by the ld. Counsel
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for the Appellant is concerned, in this Court’s opinion, the same would be
completely distinguishable in view of the lack of any seizure of such a
quantity of weapons in those cases. It cannot be presumed that a person can
be innocently in possession of such a large cache of weapons.
33. Moreover, the above judgments relied upon by the ld. Counsel
appearing on behalf of the Appellant, have also been considered by this Court
in Jagtar Singh Johal @ Jaggi v. National Investigation Agency
(2024:DHC:7110-DB) wherein, while relying on the principles of Gurwinder
Singh (supra), the Court inter alia held that Cases involving serious crimes
could be of various categories, such as offences relating to laundering of
money, offences related to counterfeit currency, terrorist acts, etc. Acts of
Terrorism and association with banned organisations which have international
networks as also acts against the nation have to be considered as a distinct and
more serious category of offences. In such cases, it is imperative for the Court
to adjudicate not merely on the facts of one particular FIR but on a larger
canvas as such acts can cause immense damage in terms of loss of life. The
Court further held that while speedy trial and personal liberty, as in the present
case, is necessary as a Constitutional prescription, in cases involving anti
national activities, grant of bail ought to be considered with a stricter brush.
The relevant portion of the judgment is extracted hereinunder:
“76. Cases involving serious crimes could be of various
categories, such as offences relating to laundering of
money, offences related to counterfeit currency,
terrorist acts, etc. Acts of Terrorism and association
with banned organisations which have international
networks as also acts against the nation have to be
considered as a distinct and more serious category of
offences. All offences covered under the UAPA cannotCRL.A. 799/2023 Page 25 of 29
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be treated with the same brush. Even for the purpose of
grant of bail, such offences are not to be examined on
the basis of mere facts of one particular FIR but on a
larger canvas in the overall scheme of the multiple FIRs,
if existing, against a particular accused. The damage in
terms of loss of life as also the intent behind such attacks
i.e., to destabilise the law and order situation as well as
to strike terror in the minds of people in or outside India,
has to be considered for the purposes of granting bail.
Terrorist activities, which have trans-national links,
would also fall in a more serious and grave category of
cases. Accused, who are involved in such activities,
could be working overtly and covertly. The fact that they
could be linked through dark networks which are easily
not traceable needs to be borne in mind. Investigating
agencies face enormous challenges in unearthing
evidence in such cases. While speedy trial is necessary
as a Constitutional prescription, in cases involving anti-
national activities and that too terrorism at an
international scale, long incarceration in itself ought
not to lead to enlargement on bail when facts show
involvement in such activities. In the case of persons
associated with terrorist or unlawful organizations
having their activities spanning across countries, the
consideration for grant of bail in such serious offences
ought to be strictly dealt with, as prescribed in the
statute(UAPA), on the benchmarks contained in Section
43D(5) of the Act.”
34. A perusal of the seizure memo dated 12th September, 2022 coupled
with the articles and goods which have been recovered from the Appellant’s
own residence would show that a large cache of weapons such as pistols,
wooden guns, etc. as also ammunitions and several expensive mobile phones,
were found in the room of the Appellant’s house. The house is stated to be
owned by the Appellant’s wife. It was their regular residence. Moreover, the
Appellant as also his wife are the pairokar for both sons, one of whom, had
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in fact absconded to Thailand and extradition proceedings had to be initiated.
Though the Appellant claims that he has, in fact, disowned the son, he and his
wife still continue to remain the pairokars for the older son, Kala Rana. He
was also the pairokar for the second son, Noni, who has obtained bail and has
now absconded. The involvement with such criminal gangs which are
involved in transnational killings cannot be ruled out at this stage.
35. In the present case, a large quantum of weapons, expensive mobile
phones, ammunitions, etc. were found from the residence of the Appellant as
captured in the seizure memo dated 12th September, 2022. In these
circumstances, a prima facie opinion against the innocence of the Appellant
is drawn by the Court as it is not normal or justifiable to find incriminating
evidence of this quantity at someone’s residence. Moreover, applying the
triple test of bail jurisprudence in this case, the Appellant herein has a son
who has already absconded from bail to Thailand and had to be extradited
back to India. The Appellant is the pairokar of his son. Further, the Appellant
was convicted in FIR No. 796/2018, PS. City Jagadhri, Haryana under
Section 174A IPC, 1860 vide judgment dated 25th July, 2023 for being an
absconder in FIR No. 826/2017. There are also allegations made by the NIA
that the Appellant herein has a substantial base in Thailand and the chances
of flight risk are quite high. Moreover, the deep-rooted involvement of the
entire family leads this Court to believe that the Appellant’s propensity to
indulge in continued illegal activity and support for LB’s gang is also quite
high.
36. The inability of the defense to refute these allegations, is enough for
this Court, at this stage, to hold that the Appellant does not satisfy the triple
test of bail jurisprudence. This view is taken by the Court in the light of the
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Gurwinder Singh (supra) wherein it is inter alia held that the question of
entering the ‘second test’ of the inquiry will not arise if the Appellant is unable
to pass the ‘first test’. In the overall circumstances of the case, the accused
will have to show that he successfully passes the ‘tripod test’.
37. Moreover, while speedy trial and liberty of an individual are of utmost
importance, in cases involving anti-national activities, terrorism, involvement
with dreaded gangsters where there is a clear possibility of continued
involvement, the considerations of bail cannot be the same. Recently, in the
judgment of Neeraj Sehrawat @ Neeraj Bawaniya (2025:DHC:176) a ld.
Single Judge of this Court observed that speedy trial cannot be a `free pass’
for every undertrial, demanding that he be enlarged on bail regardless of his
criminal antecedents and the nature of offence. The Court must consider the
larger interest of society and the same must prevail over the individual right
of an undertrial. The relevant portion of the judgment is extracted hereunder:
“23. To reiterate, in the present case, bail is not being
denied so as to inflict pre-trial punishment upon the
petitioner, but in view of the petitioner’s grave criminal
antecedents and demonstrable recidivistic tendencies,
as discussed above. It may be said that the right to
speedy trial derived from Article 21 of the Constitution
of India is not a ‘free-pass’ for every undertrial,
demanding that he be enlarged on bail regardless of his
criminal antecedents and the nature of the offence. In
matters such as this, the larger interests of society must
prevail over the individual rights of an undertrial.”
38. The innocence of the Appellant at this stage cannot be said to be prima
facie, proved under the rigours of Section 43D(5) UAPA, 1967 as both the
sons were in custody at the time, when the search was conducted at the
Appellant’s house. Therefore, it is implausible for the Court to believe that
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such a large quantum of expensive mobile phones and the whole cache of
weapons which were found including guns and live cartridges, etc. could have
been stored without his knowledge, in his own residence where he and his
wife reside.
39. Even if the Court does not take the testimonies of the protected
witnesses into consideration, the presence of the Appellant at his residence at
the time when the seizure was effected and the fact that both the sons were in
judicial custody when the seizure was effected, persuades this Court to
reasonably believe at prima facie that the allegations against the Appellant are
true, which is the standard to be considered under 43D(5) of the UAPA, 1967.
40. Therefore, the opinion of this Court is that the allegations against the
Appellant are prima facie true and the Appellant is unable to prove his
innocence at this stage or is able to give any valid explanation for the presence
of the seized goods at his residence.
41. In view thereof, applying all the tests laid down by the Supreme Court
in a catena of judgments, this Court is not inclined to grant bail in the present
case.
42. The appeal is, accordingly, dismissed and disposed of in the above
terms.
PRATHIBA M. SINGH
JUDGE
DHARMESH SHARMA
JUDGE
JANUARY 17, 2025
Ch/rks
(corrected & released on 21st January, 2025)
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KUMAR VATS
Signing Date:22.01.2025
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