Calcutta High Court (Appellete Side)
Abu Samad vs National Investigation Agency on 22 January, 2025
Author: Arijit Banerjee
Bench: Arijit Banerjee
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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
CRA (DB) 276 of 2024
Abu Samad
-Vs.-
National Investigation Agency
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the appellant : Ms. Riya Jhapri, Adv.
Mr. Rajeev Lochan, Adv.
For the N.I.A. : Mr. Arun Kumar Maiti (Mohanty), Spl. PP, NIA.
Mr. Bhaskar Prosad Banerjee, Adv.
Mr. D. Tandon, Adv.
Mr. Arka Ghosh, Adv.
Mr. Shyamal Kr. Ghosh, Adv.
CAV on : 16.12.2024
Judgment On : 22.01.2025
Arijit Banerjee, J.:-
1.
The petitioner says that he is in judicial custody for more than 3 years
9 months. There is no material evidence against him. He has been arrested
only on the basis of suspicion. No victim died in the alleged incident. He is a
family man and by occupation, a truck driver. He has been arrested from
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Jalpaiguri which is more than 500 kilometres away from the place of
occurrence of the alleged crime.
2. The petitioner further says that there are 179 charge sheet named
witnesses. Only 54 witnesses have been examined so far.
3. The petitioner further argued that however grave the alleged offence
be, bail should be granted to an accused person if there is inordinate delay
in the trial and the accused person is in incarceration for a long period of
time. Reliance was placed on the decision of the Hon’ble Supreme Court in
the case of Angela Harish Sontakke v. State of Maharashtra, reported
at (2021) 3 SCC 723, in support of the submission that even in a case of
alleged offences under the Unlawful Activities (Prevention) Act, 1967 in spite
of the restrictions in Section 43D (5) of the Act, bail was granted to the
accused considering the extended period of custody and little possibility of
early conclusion of the trial. Reference was also made to the case of Union
of India v. K.A. Najeeb, reported at (2021) 3 SCC 713.
4. Learned Advocate for the National Investigating Agency (in short ‘NIA’)
argued that considering the nature and gravity of the alleged offence which
comes under a Scheduled Act, as per Central Government’s order dated
March 1, 2021, NIA took up the investigation and re-registered the case vide
FIR no. RC04/2021/NIA/DLI dated March 2, 2021, under Sections 326,
307, 120B of IPC & Sections 3 and 4 of the Explosive Substances Act, 1908.
After investigation, NIA filed the first chargesheet on August 24, 2021, under
Sections 326, 307, 120B of IPC, Sections 3 and 4 of the Explosive
Substances Act, 1908 and Sections 16, 18 & 20 of the UAPA Act, 1967.
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Supplementary charge sheet under the same sections was filed on November
14, 2022.
5. Learned Advocate submitted that the total number of persons injured
in the incident is 22 including a Minister in the Government of West Bengal
who lost one of his fingers because of bomb blast. Some of the other victims
lost vision in both eyes; some lost their hands and/or wrists. Some had their
feet blown away.
6. It was further submitted that the total number of witnesses cited in
the chargesheets was 139. However, the number of prosecution witnesses
have been pruned. The prosecution has already examined 52 witnesses. It
will examine 5 more witnesses including one protected witness, three
technical witnesses from CFSL and CERT and the Investigating Officer.
October 1, 2024 was fixed for recording evidence of protected witness no.
13. However, due to non-production of accused Isha Khan who was arrested
by the State Police in connection with GR 2694/2024, the protected witness
could not be examined on that date.
7. Learned Counsel for NIA further submitted that the appellant has
suppressed material facts. The charging sections of UAPA have not been
mentioned in the pleadings filed in this appeal. Further, learned Counsel for
the appellant upon instructions have made incorrect statements before this
Court by submitting that there is no progress in the trial. The order sheets
and the depositions would demonstrate that the trial of the case has been
proceeding with utmost expedition. There is no question of violation of the
appellant’s rights under Article 21 of the Constitution of India.
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8. Learned Advocate, with reference to the depositions of the witnesses
so far examined, submitted that the appellant was involved in making the
bomb and did the recce for planting the bomb at the concerned station. PW
26, PW 28 and PW 11 have identified the appellant on dock during recording
of their evidence. PW 22 has stated that another accused person namely,
Sahidul took terrorist training from Pakistan. P.W. 17 identified the box grill
done at the instance of Sahidul. Bail of the appellant at this juncture will
delay and frustrate the trial. The appellant is a close associate of Accused
No. 1. After committing a murder in the year 2010, the Accused No. 1
absconded for 10 years. If the present appellant, who is the Accused No. 2 is
released on bail, he is very likely to abscond and frustrate the trial.
9. Before proceeding further, we may note the alleged incident. On
February 17, 2021, at about 21:55 hours, a Minister of the State
Government along with approximately 70 other persons who belong to the
same political party arrived at Nimtita Railway Station, Murshidabad, West
Bengal, for boarding a train. While the group was entering the platform, a
bomb exploded causing serious injury to the Minister and 22 other persons.
The blast also endangered the lives of a number of people who had
assembled in the Railway Station in the usual course of business. Several
people sustained serious injuries. Some of them lost their hands, their
wrists. Some of them lost their feet and suffered grievous injury to their eyes
resulting in loss of vision.
10. Therefore, we see that the alleged offence was heinous in nature. The
petitioner is the accused no. 2 in the criminal case. Prima facie there
appears to be sufficient evidence against the petitioner. We have gone
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through the depositions of the witnesses already examined. They prima facie
implicate the petitioner.
11. It also cannot be said that there is any inordinate delay in the trial.
The charge sheet named witnesses numbered 139. However, the prosecution
decided to examine 54 witnesses. 5 witnesses remained to be examined as
on October 1, 2024. The trial is likely to conclude very soon.
12. We are conscious that an undertrial person cannot be kept in
incarceration for a long period of time without taking the trial to its logical
conclusion. However, there may be cases where a number of witnesses are
required to be examined and numerous documents need to be exhibited.
The trial may take some time. If a person is detained in judicial custody for
a long period without there being any progress in the trial, surely that
person can legitimately claim to be released on bail. However, we do not see
that such is the case here.
13. A number of factors need to be considered for deciding whether bail
should be granted in the case of a non-bailable offence. They are, inter alia:-
(1) Whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence.
(2) Nature of accusation and evidence therefor.
(3) Gravity of the offence and punishment which the conviction will
entail.
(4) Reasonable possibility of securing presence of the accused at
trial and danger of his absconding or fleeing if released on bail.
(5) Means, position and standing of the accused in the society.
(6) Reasonable apprehension of the witnesses being tampered with.
6(7) Danger of justice being thwarted by grant of bail.
(8) Balance between the rights of the accused and the larger
interest of the Society/State.
14. We have noted the sections of IPC and UAPA as well as the Explosive
Substances Act, under which the petitioner has been charged. The charge
under Section 307 of IPC (attempt to murder), if proved, may attract the
punishment of imprisonment for life for the petitioner. The charges under
Sections 3 and 4 of the Explosive Substances Act, 1908, if proved may
attract life imprisonment or even death penalty if any special category
explosive substance is involved. The charge under sections 16, 18 and 20 of
the Unlawful Activities (Prevention) Act, 1967, if established, will attract a
minimum of 5 years imprisonment and a maximum of life imprisonment for
the petitioner.
15. We, therefore, see that the petitioner is prima facie involved in an act
of terrorism which is a grave offence. Terrorism is a crime against mankind.
It compromises national security. If convicted, the petitioner will have to
suffer severe punishment. There is sufficient prima facie evidence against
the petitioner.
16. In view of the aforesaid, although the petitioner is in judicial custody
for a long period of time, seeing that there has been no inordinate delay or
stagnancy in the trial which is on the verge of being concluded, balancing
the private right of the petitioner against greater public and societal interest,
we are not inclined to allow the petitioner’s prayer for bail.
17. The application for bail being CRA (DB) 276 of 2024 is accordingly
dismissed.
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18. However, considering the fairly long period of custodial detention of
the petitioner, we request the trial court to conclude the trial as soon as
possible.
19. Urgent certified photocopy of this judgment and order, if applied for,
be given to the parties upon compliance of necessary formalities.
I agree.
(Apurba Sinha Ray, J.) (Arijit Banerjee, J.)
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