2024 INSC 534 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2790 OF 2024

SHEIKH JAVED IQBAL

@ ASHFAQ ANSARI @ JAVED ANSARI APPELLANT(S)

VERSUS

STATE OF UTTAR PRADESH RESPONDENT(S)

J U D G M E N T

UJJAL BHUYAN, J.

Leave granted.

2. Heard learned counsel for the parties.

3. This appeal is directed against the order dated

03.04.2023 passed by the High Court of Judicature at Allahabad,

Lucknow Bench in Criminal Miscellaneous Bail Application No.

2282 of 2021 (Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari

Vs. State of U.P.).

2

3.1. By the aforesaid order, the High Court of Judicature at

Allahabad, Lucknow Bench (‘High Court’ hereinafter) has rejected

the bail application of the petitioner filed under Section 439 of the

Code of Criminal Procedure, 1973 (Cr.P.C.) in Crime No. 01 of 2015

registered under Sections 489B and 489C of the Indian Penal

Code, 1860 (‘IPC’ for short) and under Section 16 of the Unlawful

Activities (Prevention) Act, 1967 (‘UAP Act’ for short) before Police

Station ATS, Uttar Pradesh, District Lucknow.

4. This Court by order dated 10.04.2024 condoned the

delay in filing the related Special Leave Petition (Criminal) Diary

No. 11387 of 2024 and issued notice. On delay being condoned,

the case came to be registered as Special Leave Petition (Criminal)

No. 5260 of 2024. The matter was heard by the Vacation Bench on

03.07.2024.

5. First Information Report (FIR) was lodged against the

appellant by the informant Inspector Tej Bahadur Singh under

Sections 121A, 489B and 489C of IPC. It came to be registered as

Crime No. 01 of 2015. Informant stated that fake Indian currency

notes of the denomination of Rs. 1,000 and Rs. 500, totalling a

sum of Rs. 26,03,500.00, were recovered from the possession of

the appellant on 22.02.2015 at about 09:10 PM from the Indo-

3

Nepal border. He was apprehended by a constable of the ATS team

and brought to the ATS Headquarter. In the course of

investigation, the appellant disclosed his name as Sheikh Javed

Iqbal @ Ashfaq Ansari @ Javed Ansari, resident of Narayani Parsa,

Belwa, Nepal. In addition to the fake Indian currency notes, one

Nepalese driving licence of the appellant and one Nepalese

citizenship certificate also of the appellant were recovered besides

two mobile phones. According to the police, appellant had

confessed that he was engaged in the illegal trade of supplying

counterfeit Indian currency notes in Nepal. The appellant was

arrested on 23.02.2015.

6. Appellant had moved a bail application before the

Additional Sessions Judge, Special Judge, Lucknow (‘trial court’

hereinafter) but the same was rejected on 24.08.2016. It was

thereafter that the related bail application was filed by the

appellant before the High Court which came to be dismissed by the

impugned order.

7. At this stage, it may be stated that chargesheet against

the appellant under Section 489B and 489C IPC was filed by the

prosecution on 19.08.2015. Supplementary chargesheet under

Section 16 of the UAP Act was filed on 26.08.2015. It was

4

mentioned therein that the Hon’ble Governor had granted sanction

on 25.08.2015 to prosecute the appellant under Sections 489B

and 489C IPC read with Section 16 of the UAP Act, as amended.

Before the trial court, the case came to be registered as Case No.

940 of 2015.

8. The trial court considered the chargesheet as well as the

discharge application filed by the appellant and by the common

order dated 27.05.2016, the discharge application was dismissed,

while directing that charges be framed against the appellant under

aforesaid provisions of law.

9. By order dated 16.07.2016, the trial court framed the

charge against the appellant under the aforesaid provisions who

pleaded not guilty. Thereafter, the trial court issued summons to

the prosecution witnesses.

10. It may also be mentioned that the Home Department,

Government of U.P. passed an order on 13.01.2017, stating that

the earlier sanction granted by the Hon’ble Governor on

25.08.2015 was modified whereafter the Hon’ble Governor granted

full sanction for prosecution of the appellant in the aforesaid case

for commission of the offence under Section 16 of the UAP Act

which is punishable under Section 45(2) of the aforesaid Act.

5

11. Appellant filed an application before the High Court

under Section 482 of Cr.P.C. for quashing of the order dated

27.05.2016 passed by the trial court whereby the application for

discharge moved by the appellant was rejected. He also sought for

quashing of the order dated 16.07.2016 passed by the trial court

framing charge against the appellant.

11.1. The High Court by the order dated 08.10.2021 took the

view that no cognizance could have been taken by the trial court

against the appellant in the absence of any valid sanction of

prosecution for the offence under Section 16 of the UAP Act. The

High Court held that although sanction for prosecution had been

obtained, yet the same was not based upon recommendation after

an independent review of the evidence collected during the course

of investigation by the appropriate authority as required under

Section 45(2) of the UAP Act. According to the High Court, it was a

clear case of non-application of mind as the State failed to comply

with the mandatory statutory provision under Section 45 of the

UAP Act. Thus, the sanction orders dated 25.08.201 5 and

13.01.2017 were held to be invalid. Therefore, the trial court was

barred from taking cognizance under Section 16 of the UAP Act.

Consequently, the order of cognizance dated 27.05.2016 passed by

6

the trial court in Case No. 940 of 2015 in so far the offence under

Section 16 of the UAP Act was concerned as well as the charge to

the extent of Section 16 of the UAP Act were quashed. The trial

court was directed to proceed with the trial only with respect to the

rest of the offences under Sections 489B and 489C IPC against the

appellant.

12. State of U.P. assailed the order of the High Court dated

08.10.2021 before this Court by filing Special Leave to Appeal

(Criminal) No. 861 of 2022. This Court by order dated 11.02.2022

issued notice and in the meanwhile directed stay of the order of

the High Court dated 08.10.2021.

13. On 20.02.2024, this Court on perusal of the materials

placed before the Court, noted that subsequent development had

taken place whereby sanction was granted vide order dated

15.12.2021 after the order of the High Court. In view of the

subsequent development, this Court declined to examine the issue

on merit leaving it open to the State Government to apply before

the High Court seeking permission to proceed in the matter for the

offence under the UAP Act on the basis of the subsequent

development. It was clarified that on filing of such proceedings, the

High Court would be at liberty to consider the issue and decide the

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same affording due opportunity to all concerned without being

influenced by the observations made in the order of the High Court

dated 08.10.2021. Consequently, the Special Leave to Appeal

(Criminal) No. 861 of 2022 was disposed of.

14. In the meanwhile, appellant moved the High Court for

regular bail under Section 439 Cr.P.C. which came to be registered

as Criminal Miscellaneous Bail Application No. 2282 of 2021. By

the impugned order dated 03.04.2023, the High Court observed

that the charges levelled against the appellant are grave. Though

the appellant is in jail since the last eight years and evidence of

only two witnesses had been recorded, appellant could not be

released on bail since he belongs to Nepal and that there is a strong

probability of the appellant evading trial by absconding .

Accordingly, the bail application has been rejected.

15. Mr. M.S. Khan, learned counsel for the appellant

submits that appellant is in custody for more than nine years now.

There is no possibility of the criminal trial being concluded in the

near future. Therefore, the appellant should be enlarged on bail.

16. On the other hand, Ms. Garima Prasad, learned

Additional Advocate General for the State of U.P. submits that the

charges against the appellant are very serious in nature. Besides,

8

he being a foreign national, there is an attendant flight risk.

Therefore, appellant may not be released on bail; instead the trial

court may be directed to expedite the trial. Referring to the counter

affidavit filed on behalf of the State of U.P., she submits that

appellant is an accused under the UAP Act and is, therefore, not

entitled to bail. In this connection, she has referred to a recent

decision of this Court in Gurwinder Singh Vs. State of Punjab

1.

17. Submissions made by learned counsel for the parties

have been duly considered.

18. We have already noticed that the appellant is in jail

since 23.02.2015. Now we are in July 2024. Nine years have gone

by in the meanwhile. As per the impugned order, evidence of only

two witnesses have been recorded. In the course of hearing, the

Bench had queried learned counsel for the parties as to the stage

of the trial; how many witnesses the prosecution seeks to examine

and evidence of the number of witnesses recorded so far.

Unfortunately, counsel for either side could not apprise the Court

about the aforesaid. On the contrary, learned state counsel sought

for time to obtain instructions. Having regard to the fact that

1

(2024) SCC Online SC 109

9

appellant is in custody for more than nine years now, we declined

the prayer of the learned state counsel seeking further time.

Learned counsel for the parties were also unable to tell us as to

whether the State has moved the High Court after the order of this

Court dated 20.02.2024 and whether any order has been passed

by the High Court on the same.

19. As already noted above, appellant is in custody for more

than nine years now. The impugned order says that evidence of

only two witnesses have been recorded. In such circumstances, a

reasonable view can be taken that the trial is likely to take

considerable time.

20. Before proceeding further, let us briefly look at the

sections invoked against the appellant. Section 489B IPC deals

with the offence of using forged or counterfeit currency notes or

bank notes as genuine despite knowing the same to be forged or

counterfeit. Conviction for such an offence would result in

punishment of imprisonment for life or with punishment of either

description for a term which may extend to ten years and shall also

be liable to fine. Offence under Section 489C IPC is committed

when one is found in possession of any forged or counterfeit

currency notes or bank notes despite knowing the same to be

10

forged or counterfeit and intending to use the same as genuine.

Punishment for such an offence is imprisonment of either

description for a term which may extend to seven years or with fine

or with both.

20.1. Section 16 of the UAP Act provides for punishment for

committing a ‘terrorist act’. ‘Terrorist act’ is defined in Section 15.

For the present case, the definition which would be relevant is that

a person commits a ‘terrorist act’ if he does any act with the

intention to threaten or likely to threaten the economic security of

India i.e. damage to the monetary stability of India by way of

production or smuggling or circulation of ‘high quality counterfeit

Indian paper currency’, coin or of any other material. Explanation

(b) explains ‘high quality counterfeit Indian currency’. In such a

case, the punishment under Section 16 would be imprisonment

for a term which shall not be less than five years but which may

extend to imprisonment for life and shall also be liable to fine.

20.2. Section 43D of the UAP Act says that there shall be

modified application of certain provisions of the Cr.P.C. As per sub-

Section (5) of Section 43D, which starts with a non-obstante clause,

notwithstanding anything contained in the Cr.P.C, no person

accused of an offence punishable under Chapters IV (which

11

includes Section 16) and VI of the UAP 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 bail

application. The proviso says 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 Cr.P.C. is of

the opinion that there are reasonable grounds for believing that

the accusation against such person is prima-facie true. Sub-

Section (6) clarifies that the restrictions on granting of bail

specified in sub-Section (5) would be in addition to the restrictions

under the Cr.P.C. or any other law for the time being in force on

granting of bail.

21. It is true that the appellant is facing charges under

Section 489B IPC and under Section 16 of the UAP Act which

carries a maximum sentence of life imprisonment, if convicted. On

the other hand, the maximum sentence under Section 489C IPC is

7 years. But as noticed above, the trial is proceeding at a snail’s

pace. As per the impugned order, only two witnesses have been

examined. Thus, it is evident that the trial would not be concluded

in the near future.

12

22. It is trite law that an accused is entitled to a speedy trial.

This Court in a catena of judgments has held that an accused or

an undertrial has a fundamental right to speedy trial which is

traceable to Article 21 of the Constitution of India. If the alleged

offence is a serious one, it is all the more necessary for the

prosecution to ensure that the trial is concluded expeditiously.

When a trial gets prolonged, it is not open to the prosecution to

oppose bail of the accused-undertrial on the ground that the

charges are very serious. Bail cannot be denied only on the ground

that the charges are very serious though there is no end in sight

for the trial to conclude.

23. This Bench in a recent decision dated 03.07.2024 in

Javed Gulam Nabi Shaikh Vs. State of Maharashtra, Criminal

Appeal No. 2787 of 2024, has held that howsoever serious a crime

may be, an accused has the right to speedy trial under the

Constitution of India. That was also a case where fake counterfeit

Indian currency notes were seized from the accused-appellant. He

was investigated by the National Investigating Agency (NIA) under

the National Investigating Agency Act, 2008 and was charged

under the UAP Act alongwith Sections 489B and 489C IPC. He was

in custody as an undertrial prisoner for more than four years. The

13

trial court had not even framed the charges. It was in that context,

this Court observed as under:

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.

23.1. After referring to various other decisions, this Court

further observed as follows:

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.

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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.

24. Earlier, in Supreme Court Legal Aid Committee

(Representing Undertrial Prisoners) Vs. Union of India

2, this Court

had issued a slue of directions relating to undertrials in jail facing

charges under the Narcotic Drugs and Psychotropic Substances

Act, 1985 (briefly, the ‘NDPS Act’ hereinafter) for a period

exceeding two years on account of the delay in disposal of the

cases lodged against them. In respect of undertrials who were

foreigners, this Court directed that the Special Judge should

impound their passports besides insisting on a certificate of

assurance from the concerned Embassy/High Commission of the

country to which the foreigner accused belonged and that such

accused should not leave the country and should appear before

the Special Court as required.

25. Similarly, in Shaheen Welfare Association Vs. Union of

India

3, this Court was considering a public interest litigation

2

(1994) 6 SCC 731

3 (1996) 2 SCC 616

15

wherein certain reliefs were sought for undertrial prisoners

charged with offences under the Terrorist and Disruptive Activities

(Prevention) Act, 1987 (TADA Act) languishing in jail for

considerable periods of time. This Court observed that while liberty

of a citizen must be zealously safeguarded by the courts but, at the

same time, in the context of stringent laws like the TADA Act, the

interest of the victims and the collective interest of the community

should also not be lost sight of. While balancing the competing

interest, this Court observed that the ultimate justification for

deprivation of liberty of an undertrial can only be on account of the

accused-undertrial being found guilty of the offences for which he

is charged and is being tried. If such a finding is not likely to be

arrived at within a reasonable time, some relief(s) becomes

necessary. Therefore, a pragmatic approach is required.

26. Angela Harish Sontakke Vs. State of Maharashtra

4 is a

case where the accused-appellant was charged under various

provisions of the UAP Act as well as under the IPC. He sought for

bail. This Court observed that, undoubtedly, the charges are

serious but the seriousness of the charges will have to be balanced

with certain other facts like the period of custody suffered and the

4

(2021) 3 SCC 723

16

likely period within which the trial can be expected to be completed.

In that case, it was found that the appellant-accused was in

custody since April, 2011 i.e. for over five years. The trial was yet

to commence. A large number of witnesses were proposed to be

examined. It was in that context that the appellant-accused was

directed to be released on bail.

27. More recently, a three Judge Bench of this Court in

Union of India Vs. K.A. Najeeb

5, considered an appeal filed by the

Union of India through the National Investigation Agency (NIA)

against an order passed by the High Court of Kerala granting bail

to an accused-undertrial facing trial for allegedly committing

offences, amongst others, under Sections 16, 18, 18B, 19 and 20

of the UAP Act.

27.1. This Court noted that the appellant in K.A. Najeeb

(supra) was in jail for more than five years. Charges were framed

only on 27.11.2020 and there were 276 witnesses still left to be

examined. This Court emphasized that liberty granted by Part III

of the Constitution would cover within its protective ambit not only

due procedure and fairness but also access to justice and speedy

trial. No undertrial can be detained indefinitely pending trial. Once

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(2021) SCC Online SC 50

17

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 them on bail.

27.2. Referring to the decision of this Court in NIA Vs. Zahoor

Ahmad Shah Watali

6, this Court opined that the High Court in that

case had virtually conducted a mini trial and determined

admissibility of certain evidence which clearly exceeded the limited

scope of a bail proceeding. Not only was it beyond the statutory

mandate of prima-facie assessment under Section 43D(5) of the

UAP Act, it was premature and possibly would have prejudiced the

trial as well. It was in these circumstances that this Court in

Zahoor Ahmad Shah Watali (supra) had to intervene leading to

cancellation of the bail granted.

28. We are in respectful agreement with the reasoning given

in K.A. Najeeb (supra) regarding the decision in Zahoor Ahmad

Shah Watali (supra). This decision i.e. Zahoor Ahmad Shah Watali

(supra) has to be read and understood in the context in which it

was rendered and not as a precedent to deny bail to an accused-

undertrial suffering long incarceration with no end in sight of the

criminal trial.

6

(2019) 5 SCC 1

18

29. Going back to K.A. Najeeb (supra), this Court thereafter

proceeded to hold that Section 43D(5) of the UAP Act does not oust

the ability of the constitutional courts to grant bail on grounds of

violation of Part III of the Constitution. Long incarceration with the

unlikelihood of the trial being completed in the near future is a

good ground to grant bail. This Court also distinguished Section

43D(5) of the UAP Act from Section 37 of the NDPS Act. It has been

held as follows:

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

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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,

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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.

29.1. Declining to interfering with the order of the High Court,

this Court in K.A. Najeeb (supra) dismissed the appeal of the Union

of India.

30. Recently, this Court dealt with a matter where the

appellant, a foreign national, is being prosecuted for offences

punishable under Sections 8, 22, 23 and 29 of the NDPS Act. The

appellant was arrested on 21.05.2014. The High Court had

granted bail to the appellant vide the order dated 31.05.2022 but

had incorporated certain conditions in the bail order because of

which the appellant remained in custody despite having a bail

order in his favour. One of the conditions was that the appellant,

a Nigerian national, should obtain a certificate of assurance from

the High Commission of Nigeria to the effect that the appellant

would not leave the country and would appear before the trial

court on the dates fixed. Another condition imposed was that the

accused should drop a pin on the google map to ensure that his

21

location is available to the investigation officer at all times. This

Court as an interim measure had granted bail to the accused -

appellant and thereafter passed a detailed judgment in Frank Vitus

Vs. Narcotics Control Bureau, Criminal Appeal No. 2814-15 of

2024, decided on 08.07.2024. This Court after referring to earlier

decisions of this Court held that conditions of bail cannot be

arbitrary and fanciful. The expression ‘interest of justice’ finding

place in Section 437(3) Cr.P.C. means only good administration of

justice or advancing the trial process. It cannot be given any

further broader meaning to curtail the liberty of an accused

granted bail. Courts cannot impose freakish conditions while

granting bail. Bail conditions must be consistent with the object of

granting bail. While imposing bail conditions, the constitutional

rights of an accused who is ordered to be released on bail can be

curtailed only to the minimum extent required. Even when an

accused is in jail, he cannot be deprived of his right to life which

is a basic human right of every individual. This Court held that

bail conditions cannot be so onerous so as to frustrate the order of

bail itself.

30.1. Thereafter, this Court held as follows:

7.1. We are dealing with a case of the accused

whose guilt is yet to be established. So long as he

22

is not held guilty, the presumption of innocence

is applicable. He cannot be deprived of all his

rights guaranteed under Article 21. The Courts

must show restraint while imposing bail

conditions. Therefore, while granting bail, the

Courts can curtail the freedom of the accused

only to the extent required for imposing the bail

conditions warranted by law. Bail conditions

cannot be so onerous as to frustrate the order of

bail itself. For example, the Court may impose a

condition of periodically reporting to the police

station/Court or not travelling abroad without

prior permission. Where circumstances require,

the Court may impose a condition restraining an

accused from entering a particular area to protect

the prosecution witnesses or the victims. But the

Court cannot impose a condition on the accused

to keep the Police constantly informed about his

movement from one place to another. The object

of the bail condition cannot be to keep a constant

vigil on the movements of the accused enlarged

on bail. The investigating agency cannot be

permitted to continuously peep into the private

life of the accused enlarged on bail, by imposing

arbitrary conditions since that will violate the

right of privacy of the accused, as guaranteed by

Article 21. If a constant vigil is kept on every

movement of the accused released on bail by the

use of technology or otherwise, it will infringe the

23

rights of the accused guaranteed under Article

21, including the right to privacy. The reason is

that the effect of keeping such constant vigil on

the accused by imposing drastic bail conditions

will amount to keeping the accused in some kind

of confinement even after he is released on bail.

Such a condition cannot be a condition of bail.

***********

9. A condition cannot be imposed while

granting bail which is impossible for the accused

to comply with. If such a condition is imposed, it

will deprive an accused of bail, though he is

otherwise entitled to it.

30.2. In so far the condition that the accused should drop a

pin on the google map, this Court referred to the affidavit filed

Google LLC wherein it was stated that the user has full control over

sharing of pin with other users; pin location does not enable real

time tracking of the user or a user’s device. Therefore, this Court

found that such a condition was completely redundant. Thereafter,

this Court held that imposing any bail condition which enables the

police/investigating agency to track every move ment of the

accused released on bail by use of technology or otherwise would

undoubtedly violate the right to privacy of the accused guaranteed

under Article 21.

24

30.3. Distinguishing the decision of this Court in Supreme

Court Legal Aid Committee (Representing Undertrial Prisoners)

(supra), this Court observed that an accused-undertrial has no

control over the Embassy or High Commission of his country. On

failure of the Embassy or High Commission to issue a certificate

that the accused-undertrial would not flee from the country and

would attend the trial proceedings regularly, he cannot be

continued to be kept in detention despite a bail order. Instead of

the same, other practical and pragmatic conditions may be

imposed. This Court clarified that it is not necessary that in every

case where bail is granted to the accused in an NDPS case who is

a foreign national, the condition of obtaining a certificate of

assurance from the Embassy or the High Commission should be

incorporated. Consequently, in Frank Vitus (supra), this Court

while confirming the bail granted to the appellant, set aside the

two impugned conditions.

31. In Gurwinder Singh (supra) on which reliance has been

placed by the respondent, a two Judge Bench of this Court

distinguished K.A. Najeeb (supra) holding that the appellant in

K.A. Najeeb (supra) was in custody for five years and that the trial

25

of the appellant in that case was severed from the other co-accused

whose trial had concluded whereupon they were sentenced to

imprisonment of eight years; but in Gurwinder Singh, the trial was

already underway and that twenty two witnesses including the

protected witnesses have been examined. It was in that context,

the two Judge Bench of this Court in Gurwinder Singh observed

that mere delay in trial pertaining to grave offences cannot be used

as a ground to grant bail.

32. This Court has, time and again, emphasized that right

to life and personal liberty enshrined under Article 21 of the

Constitution of India is overarching and sacrosanct. A

constitutional court cannot be restrained from granting bail to an

accused on account of restrictive statutory provisions in a penal

statute if it finds that the right of the accused-undertrial under

Article 21 of the Constitution of India has been infringed. In that

event, such statutory restrictions would not come in the way. Even

in the case of interpretation of a penal statute, howsoever stringent

it may be, a constitutional court has to lean in favour of

constitutionalism and the rule of law of which liberty is an intrinsic

part. In the given facts of a particular case, a constitutional court

may decline to grant bail. But it would be very wrong to say that

under a particular statute, bail cannot be granted. It would run

26

counter to the very grain of our constitutional jurisprudence. In

any view of the matter, K.A. Najeeb (supra) being rendered by a

three Judge Bench is binding on a Bench of two Judges like us.

33. Thus, having regard to the discussions made above, we

are of the considered view that continued incarceration of the

appellant cannot be justified. We are, therefore, inclined to grant

bail to the appellant.

34. Consequently, we pass the following order: -

(i) The impugned order dated 03.04.2023 of the High

Court is set aside and quashed;

(ii) Appellant is directed to be released on bail subject

to fulfilment of the following conditions: -

(a) Trial court shall impound the passport

and/or citizenship document(s) of the appellant. If

those are in the custody of the prosecution, those

shall be handed over to the trial court.

(b) Appellant shall not leave the territorial

jurisdiction of the trial court; he shall furnish his

address to the trial court.

(c) He shall appear before the trial court on each

and every date of the trial.

27

(d) In addition to the above, the appellant shall

mark his attendance before the police station

which the trial court may indicate once in every

fortnight till conclusion of the trial.

(e) He shall not tamper with the evidence and

shall not threaten the witnesses.

(iii) If there is any violation of the bail conditions as

above, it would be open to the prosecution to move the

trial court for cancellation of bail.

35. The appeal is, accordingly, disposed of.

.………………………………J

[J.B. PARDIWALA]

…………………………………J

[UJJAL BHUYAN]

NEW DELHI;

JULY 18, 2024.