Naim @ Mohd. Naeem vs National Investigation Agency

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“VIII. The investigation has substantiated that Mufti Saqib (A-5) was instrumental in arranging for weapons for the group. For this purpose he contacted his relative Naim @ Nayeem Chaudhary (A-11) of village Radhna Inayatpur, Meerut. In the first instance, Naim arranged one Pistol, one Katta and 20 cartridges of .32 mm and second time A-11 arranged three Pistols and 80/100 cartridges from his village Radhana lnayatpur, through three persons Matloob (PW-11), Aarif(PW-58)and Israr(PW-57)all residents of the same village. It has been revealed that Naim had the knowledge about the intention of the group to target innocent civilians for spreading terror but nevertheless he provided the weapons and involved himself in the conspiracy to wage war against the Government of India.”

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III. Procurement of Pistols from Meerut: (1st Visit):

a)

The initial investigation revealed that A-1, A-2, A-3, A-4 & A-5 went to Meerut in the first week of July, 2018 to procure pistols from Radhana Inayatpur, Meerut, UP. Naim (A-11) was instrumental in their procuring the weapons.

b)

The investigation revealed that during the first week of July, 2018, Suhail (A-1) went to Simbhaoli in western UP along with Anus Younus (A-2), Zafar (A-4) and Zubair (A-3) by a Maruti Swift Car white colour (belonging to Zubair (A-3) and took Saqib (A-5) from Jama Masjid Baksar, Hapur and reached at the tea stall near bus stand of Radhna Inyatpur. Naim (A-11) and Kasun (s/o Sh. Zafaryab) a resident of this village was already therewhen Kasim called Matloob (PW-11).

c)

Matloob (PW-11) handed one Pistol and one Katta and one packet (Cartridge) rounds (20) to Mufti Suhail (A-1). In this transaction A-5 introduced A-11 to the group who promised them that weapons can be arranged for a price.

d)

Evidence gathered by Investigation to substantiate the transactions in Meerut (First Visit):

i.

Witness Matloob (PW-11) in his statement testified that during the transaction of weapons dealings by Naim (A-11) and Suhail (A-1) he witness the transaction of arranging 01 country made pistol, 01 country made Katta and 20Nos. ammunition on the direction of Naim (A-11) and that these were handed over to A-1.

ii.

Matloob (PW-11) also identified the arms which were given to A-1 after seeing the photographs of pistols at the time of seizure.

iii.

Voluntary Disclosure and Pointing out by Naim (A-11): The investigation has also corroborated the fact of this meeting from the disclosure/pointing out on 12/01/2019 wherein A-11 pointed out the places where A-11 met with A-1 and the place where Pistols were purchased.During the visit A-1, A-2, A-3, A-4, and A-5 came at Village Radhna Inyatpur and collected one country made pistol, one country made pistol and a packet of bullets from Matloob (PW- 11).

iv.

After taking the said arms and ammunition Mufti Suhail (A-1) and his team returned to Delhi and dropped Saqib (A-5) and Kasim at Simbhaoli (UP).

e)

Corroboration of above from CDR Analysis: CDR Analysis of Suhail (A-1), Zubair (A-3) and Anas (A-2) was conducted to corroborate the facts coming up from the disclosures of accused and from statement of witnesses. CDR Analysis confirms that Suhail (A-1), Zubair (A-3) and Anas (A-2) (their mobile numbers are 9910660673, 9811626865 & 8750150219) went to Meerut in the first week of July 2018. The locations and movements of phone numbers used by accused persons as mentioned above are consistent with the facts as come up in the evidence discussed above. Details are attached in the CDR Report (D-192).

IV. Procurement of Pistols from Meerut: (2nd Visit):-

a)

Investigation has established that during the second week of August, 2018 Mufti Suhail (A-1) along with Zafar (A-4) went to Vaishali metro station by Baleno car of Zafar and took Naim (A-11) (Naim was already present there) and reached Radhana lnayatpur village in Meerut, UP again. After reaching Radhana lnayatpur, they took Aarif (PW-58) and Israr (PW-57) who are locals of Radhna lnayatpur village. Here, Mufti Suhail (A-1) purchased three pistols and five packets of cartridge (each packet contains 20 rounds) from Israr (PW-57) (S/o Islam, Rio Village- Radhna lnayatpur, PS- Kitore, Distt- Meerut, UP).After collecting these arms and ammunition Mufti Suhail (A-1) and Zafar (A-4) returned to Delhi.

b)

Witnesses Israr (PW-57) and Aarif (PW-58) were examined by the investigation wherein they testified in their statement that they were present while arranging 03 country made pistols and 100 Nos. ammunition, on the direction of Naim (A-11) and the weapons/ammunition were handed over to Mufti Suhail (A-1).

c)

The investigation has substantiated by careful CDR Analysis of the phone numbers used by the accused persons that show commonality of location during the dates and it clearly corroborates that Suhail (A-1), Zubair (A-3), Anas (A-2) and Naim (A-11) (their mobile numbers are 9354439023, 981 1626865, 8750 150219 & 8448302920) went to Meerut in the second week of August 2018. They all met near Vaishali metro station and went to village- radhna Inyatpur, Meerut. Details are in CDR Report.

17.7.20 Evidence Against :Md. Naim (A-11):

Substantiation through evidence against accused Naim (A11) has been done under following headings:-

I. A-11 arranged and provided weapons for the group.

a. Disclosure/Pointing out by Naim (A-11) dated 12/01/2019 corroborates the statement of witnesses that he arranged arms & ammunition for the group through Matoob (PW-11), Israr (PW-57) & Aarif (PW-58).

b. Witness Matloob (PW-11)in his statement testified that during the transaction of weapons dealings by A-11 was present and involved in arranging 01 country made pistol, 01 country made Katta and 20Nos. ammunition which were handed over to A-1. This is a reliable eye-witness testimony.

c. Statement of Prosecution Witnesses Israr (PW-57) and Aarif (PW-58): they testified that they were present when 03 country made pistols and 100 Nos. ammunition, were arranged on the direction of Naim (A-11) and that the weapons/ammunition were handed over to Mufti Suhail (A-1).

d. The investigation has substantiated by careful CDR Analysis of the phone numbers used by the accused persons that show commonality of location during the dates ie in the first week of July and 2nd week of August, 2018. This further corroborates the facts as disclosed in the disclosure of Naim(11) and statements of eye witnesses Matloob (PW-11), Israr (PW-57) & Aarif (PW-58).

e. The evidence against him substantiates that he was part of the conspiracy hatched by A-1, A-2, A-3, A-4 & A-5 to procure weapons for the group from Radhana Inayatpur, Meerut UP.

17.7 Evidence against each accused in Tabular Format:

10

Mohd. Naeem (A-11) ➢ A-11 is a relative of Mufti Saqib (A-5). ➢ A-5 introduced A-1 and others to A-11 for arrangement of weapons through his known

Testimonial Evidence:- ➢ Oral evidence of Israr S/o Islam R/o Radhna, Inayatpur, Tehsil Mawana, PS-Kithore, Meerut, UP, Arif S/o Farmuddin R/o Radhna, Inayatpur, Tehsil Mawana, PS-Kithore, Meerut, UP, recorded u/s 161 Cr. PC. Documentary Evidence:- ➢ CDR analysis report. ➢ Forensic Examination Report of Dr. V. S. Baswani,

contacts in Radhna Inayatpur, Meerut. ➢ The investigation has established A-11 was instrumental in arranging weapons for the group.

Scientific Consultant (Explosive Expert) related to the recoveries made during searches on 26th Dec, 2018 says that the seized materials were collected for fabrication of IEDs. Material Evidence:- ➢ Recovery of two mobile phones along with SIM Cards seized from the possession of the A-11.

“52.

In K.A. Najeeb (supra), the Supreme Court considering the balance to be achieved between the Fundamental Right of an accused for a speedy trial vis-à-vis the restrictions imposed under Section 43D(5) of the UAPA on release of the accused on bail, held that these restrictions do not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. It held that whereas at the commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail, however, these restrictions will melt down where there is no likelihood of the trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. It was further held that Section 43D(5) of UAPA is comparatively less stringent than Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985, where the court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail. Instead, Section 43D(5) of the UAPA merely provides another possible ground for the court to refuse bail, in addition to the well-settled considerations like gravity of offence, etc.. We quote from the judgment as under:

“17.

It is thus clear to us that the presence of statutory restrictions 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 completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard 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.

18.

Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.

19.

Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43-D(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.”

“30.

Article 21 occupies a central place in the constitutional scheme. The right to life and personal liberty, and the insistence that any deprivation must conform to procedure established by law, are foundational guarantees. The right to a speedy trial has been recognised as an important facet of this guarantee. It follows that pre-trial incarceration cannot, by the mere passage of time, be permitted to assume the character of punishment.

31.

At the same time, Article 21 has never been understood as operating in isolation from law. The constitutional promise is not that liberty will be unregulated, but that deprivations of liberty will not be arbitrary, unconscionable, or unfair. The expression “procedure established by law” reflects that balance. The UAPA, as a special statute enacted to address offences alleged to affect the security of the State and the stability of civic life, represents a legislative judgment as to the conditions under which bail may be granted at the pre-trial stage. Section 43D(5) of UAPA embodies the exercise of that judgment.

32.

In Union of India v. K.A. Najeeb, this Court recognised a constitutional safeguard that cannot be ignored: statutory restrictions cannot be applied so as to render the guarantee of personal liberty illusory. It was held that where the trial is not likely to commence or conclude within a reasonable period, constitutional courts retain the jurisdiction to grant bail notwithstanding statutory restraints. The decision thus operates as a protection against unconscionable detention and there can be no second opinion on the said principle.

33.

The same decision, however, does not indicate as laying down a mechanical rule under which the mere passage of time becomes determinative in every case arising under a special statute. The jurisprudence of this Court does not support a construction whereby delay simpliciter eclipses a statutory regime enacted by Parliament to address offences of a special category.

34.

The constitutional inquiry into delay is not an inquiry into guilt. It is an inquiry into whether continued detention remains constitutionally permissible in the circumstances of the case. That inquiry is necessarily contextual. Context includes the nature of the allegation, the statutory field, the stage of the proceedings, the realistic trajectory of the trial, the causes contributing to delay, and the risks attendant upon release. Delay cannot be detached from these considerations and treated as a solitary determinant.

35.

The proper constitutional question, therefore, is not whether Article 21 is superior to Section 43D (5). The proper question is how Article 21 is to be applied where Parliament has expressly conditioned the grant of bail in relation to offences alleged to implicate national security. The law does not contemplate an either-or approach. Nor does it contemplate an unstructured blending of statutory and constitutional considerations. What is required is disciplined judicial scrutiny that gives due regard to both.

101.

It is well recognised that Article 21 rights, though not absolute, require the State and the Court to justify continued custody with reference to the specific individual before it. Treating all accused identically irrespective of their roles would risk transforming pre-trial detention into a punitive mechanism divorced from individual circumstances. The constitutional mandate demands a differentiated inquiry: where prolonged custody disproportionately burdens those whose roles are limited, the balance between individual liberty and collective security may call for conditional release, while the same balance may tilt differently for those alleged to have orchestrated the offence.”

“80.

From the foregoing discussion, certain propositions governing the application of Section 43D(5) emerge with clarity. First, the provision embodies a deliberate legislative departure from ordinary bail jurisprudence, premised upon the distinctive nature of offences under Chapters IV and VI of the Act. Second, the expression “prima facie true” mandates a threshold judicial inquiry which is neither perfunctory nor adjudicatory, requiring the Court to examine whether the prosecution material, taken at face value, discloses the essential statutory ingredients of the alleged offence. Third, the inquiry is necessarily accused-specific, directed to the role and attribution qua the individual, and does not admit of collective or undifferentiated treatment merely because allegations arise from a common transaction or conspiracy. Fourth, the bail stage under Section 43D(5) is not a forum for evaluating defences, weighing evidence, or conducting a mini-trial; judicial restraint at this stage is not an abdication of duty but a fulfilment of the statutory mandate. These propositions, read together, define the contours of judicial power and responsibility under the provision.

81.

The correct application of Section 43D(5), therefore, requires the Court to undertake a structured inquiry confined to the following:

i.

whether the prosecution material, accepted as it stands, discloses a prima facie case satisfying the statutory ingredients of the offence alleged;

ii.

whether the role attributed to the accused reflects a real and meaningful nexus to the unlawful activity or terrorist activity proscribed under the Act, as distinguished from mere association or peripheral presence; and

iii.

whether the statutory threshold is crossed qua the individual accused, without embarking upon an assessment reserved after full-fledged trial.

82.

Where these requirements are met, the statutory restraint on the grant of bail must operate with full force; where they are not, the embargo stands lifted. This approach preserves the legislative purpose of the Act, and ensures that the exceptional nature of the bail regime under Section 43D(5) is neither diluted by overreach nor distorted by mechanical application.”

“31.

In K.A. Najeeb, a three-Judge Bench of this Court was clear and unequivocal in holding that once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge the accused on bail. We have already extracted supra paragraph 17 of the said judgment where it has been clearly stated that the presence of statutory restrictions like Section 43D(5) of the UAP Act per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Whereas at the commencement of the proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigors of such provisions will „melt down‟ where there is no likelihood of the trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. In the facts of that case, this Court observed that it was conscious of the fact that the charges levelled against the accused were grave and a serious threat to societal harmony and had it been the case at the threshold, perhaps the Court would have outrightly rejected such a prayer. However, keeping in mind the duration of incarceration and the unlikelihood of the trial being completed in the near future, the accused had to be enlarged on bail.

35.

The often invoked phrase „bail is the rule and jail is the exception‟ is not merely an empty statutory slogan flowing from the CrPC as Gurwinder has stated. It is a constitutional principle flowing from Articles 21 and 22 of the Constitution and the presumption of innocence which is the cornerstone of any civilised society governed by the rule of law. Statutes may undoubtedly calibrate the manner in which that principle is applied, particularly in cases involving national security or terrorist offences for which the UAP Act is meant, but those cannot altogether invert the constitutional relationship between liberty and detention. The statutory embargo of Section 43-D(5) must remain a circumscribed restriction that operates subject to the guarantee of Articles 21 and 22 of the Constitution. Therefore, we have no manner of doubt in stating that even under the UAP Act, „bail is the rule and jail is the exception‟; of course, in an appropriate case, bail can be denied having regard to the facts of that particular case.”

“42.3.

Thus, from the aforesaid figures, it is evident that the country-wide percentage of conviction under the UAP Act for the five years comprising the period 2019-23 hovers between 2% to 6%. In other words, there is 94% to 98% possibility of acquittal in such cases in the country. When it comes to the Union Territory of Jammu and Kashmir, the percentage of conviction is abysmal, to say the least. For the aforesaid period, the annual rate of conviction is always less than 1%. It means that at the end of the trial, there is 99% possibility of acquittal in such cases. With these kind of statistics staring at our face, the question is, should we continue the detention of the appellant or defer the consideration to a later stage, simply because the charges are serious?”

“20.

We are also conscious that an unqualified reading of the proposition that lapse of time by itself must compel bail in every case under the UAPA may have serious consequences. Such an approach may leave little room for courts to examine the nature of allegations, centrality of role, protected witnesses, risk of intimidation, possibility of reactivation of networks, nature of delay and whether such delay is attributable to the accused himself/herself, public order concerns and national security implications. On the other hand, an equally unqualified insistence on Section 43D(5) without regard to prolonged incarceration would imperil Article 21. The Constitution does not command either extreme. It is this precise issue that may warrant attention of the appropriate bench dealing with the issues.

21.

The question, therefore, is not whether Article 21 survives Section 43D(5). It undoubtedly does. The true question is how Article 21 is to be applied in a statutory field where Parliament has consciously imposed restrictions on bail in respect of offences alleged to affect the security of the State and the stability of civic life.

22.

We clarify that nothing in this order is intended to whittle down, dilute, read narrowly, or detract from the authority of K.A. Najeeb. ...”

“35.

We are seeing before us judgments and orders by High Courts not deciding cases on the ground that the leading judgment of this Court on this subject is either referred to a larger Bench or a review petition relating thereto is pending. We have also come across examples of High Courts refusing deference to judgments of this Court on the score that a later coordinate Bench has doubted its correctness. In this regard, we lay down the position in law. We make it absolutely clear that the High Courts will proceed to decide matters on the basis of the law as it stands. It is not open, unless specifically directed by this Court, to await an outcome of a reference or a review petition, as the case may be. It is also not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts, as held by a 5-Judge Bench in National Insurance Co. Ltd. v. Pranay Sethi. The High Courts, of course, will do so with careful regard to the facts and circumstances of the case before it.”