Crl.A./35/2024 of GEISINGLUNG MEIRINGMEI Vs NATIONAL INVESTIGATION AGENCY (NIA) on 1 October 2024

1. The petitioner (sic appellant) being aggrieved with the orderdated 22.05.2024 passed by the learned Special Judge (NIA), Shillong inBail Application No. 75(H) 2024 wherein his prayer for grant of bail wasrejected, has now approached this Court with this instant appeal underSection 21(4) of the National Investigation Agency Act, 2008.

2. Heard Mr. S. Thapa, learned counsel for the petitioner who hassubmitted that the on an FIR dated 14.05.2018 lodged at Jowai PoliceStation, Jaintia Hills District wherein it was alleged that the petitionerherein and his associates as members of the banned NSCN (K) outfit haddemanded a sum of 25,00,000/- (rupees twenty five lakh) only from₹Bharatya Infra Projects Limited (BIPL) Company on 12.05.2018 in lieuof releasing an abducted employee of the said company. In course ofinvestigation the Government of India, Ministry of Home Affairs (MHA)had caused the National Investigation Agency to investigate into the caseand the same was re-registered as FIR No. RC-03/2018/NIA-GUWunder Sections 120A, 120B, 121, 121A, and 384 IPC read with Section10 and 13 of the Unlawful Activities (Prevention) Act.

3. On investigation launched, the petitioner was arrested on14.05.2018 and is still in custody till date. Of course, along with thepetitioner six other accused persons were arrested, three of them havesince been released on bail.

4. In due course, the charge sheet was filed inter alia finding the petitioner to be involved in this alleged incident and therefore he ischarged with the offences aforementioned. The stage of the case beingnow registered as Special (NIA) Case No. 1 of 2018 pending before thelearned Sessions Judge (NIA) case is for recording of the evidence ofprosecution witnesses.

5. The learned counsel has further submitted that the main chargeagainst the petitioner herein is that he was the one who has directed forthe kidnapping and also for demanding of ransom money from the saidBIPL Company as an exchange for release of the abducted employee ofthe Company, however, there is no credible evidence either in the chargesheet or through the witnesses to implicate the petitioner herein as far asthe alleged offences are concerned.

6. However, the learned counsel would submit that at this point oftime, the petitioner having been in custody for more than six years, thereis no likelihood of the trial to be concluded in the very near futuretherefore, the learned trial court failing to consider this aspect of thematter among other credible grounds, the impugned order cannot besustained.

7. The learned counsel has however pressed only on one groundthat is, that because of the long incarceration of the petitioner hispersonal liberty as enshrined under Article 21 of the Constitution of Indiahas been deprived. Considering the well settled principle of bailjurisprudence that bail is the rule and jail is the exception and that anaccused person is always assumed to be innocent until proven guilty which is to be done so in course of trial, keeping the petitioner in custodyfor more than is necessary will only defeat this liberty.

8. To support his contention that the petitioner is entitled to beenlarged on bail on the ground of prolonged custody, the learned counselhas referred to a number of authorities as follows:

i. Union of India v. K.A. Najeeb, (2021) 3 SCC 713, para 17,18 and 19;18 and 19;

ii. Javed Gulam Nabi Shaikh v. State of Maharashtra & Anr.,2024 SCC Online SC 1693, para 8, 9, 18, 19 20 and 21;2024 SCC Online SC 1693, para 8, 9, 18, 19 20 and 21;

iii. Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. Stateof Uttar Pradesh, 2024 SCC Online SC 1755, para 21, 22,23.1, 27.1 and 28;of Uttar Pradesh, 2024 SCC Online SC 1755, para 21, 22,23.1, 27.1 and 28;

iv. Balwinder Singh v. State of Punjab & Anr., Special Leave toAppeal (Crl.) No(s). 8523/2024, para 7, 8, 9 and 10.Appeal (Crl.) No(s). 8523/2024, para 7, 8, 9 and 10.

9. The learned counsel has reiterated that the issue of prolongedcustody and the right to be granted liberty vis-à-vis the proceedings inthe trial has also been noticed by this Court in a case between the partiesherein being Crl.A. No. 18/2021 wherein vide order dated 01.05.2023this Court at para 7 has elicit a response from the respondent/NIA thatalthough the prosecution intended to examine about 150 witnesses, onlyabout 75 or so witnesses would be examined and the trial, at its presentpace, should be completed in course of this year, meaning 2023.However, till date, only about 69 witnesses have been examined and considering the fact that most of the witnesses are from Manipur, underthe prevailing situation there is no likelihood of the trial being concludedbefore the end of this year.

10. For the reasons stated hereinabove, the learned counsel hassubmitted that if enlarged on bail, the petitioner will ensure that he willcomply with any conditions to be imposed by this Court.

11. Per contra, Dr. N. Mozika, learned DSGI has submitted thatapart from the offences being serious in nature, notwithstanding the factthat the petitioner has been in custody for about six years or so, the trialis proceeding with about 69 witnesses already examined and onlyapproximate 6 or more witnesses to be examined.

12. Another contention raised by the learned DSGI is that thepetitioner is a residence of the State of Manipur and if enlarged on bail,there is every possibility that he will abscond, therefore, being a flightrisk, bail may not be granted at this point of time.

13. On the contention of the learned counsel for the petitioner asregard prolonged trial and the reliance of the petitioner in the case ofK.A. Najeeb (supra), the learned DSGI has referred to the case ofGurwinder Singh v. State of Punjab & Anr., (2024) 5 SCC 403, whereinat para 45 and 46 of the same the case of K.A. Najeeb was distinguishedby the Apex Court to hold that mere delay in trial pertaining to graveoffences cannot be used as a ground to grant bail. It is therefore prayedthat this appeal be dismissed.

14. In reply, the learned counsel for the petitioner has submitted thatthe Gurwinder Singh case (supra) was also referred to in the case ofSheikh Javed Iqbal (supra) wherein at para 31 of the same the ApexCourt has observed that in the K.A. Najeeb case the accused therein wasalready in custody for more than five years and that the NIA had filed along list of witnesses to be examined, the unlikelihood of trial beingcompleted in the near future has influenced the court to grant him bail,whereas in the Gurwinder Singh case trial is already on the way and 22witnesses including the protected witnesses have been examined andtherefore, it was observed that mere delay in trial pertain to graveoffences cannot be used as a ground to grant bail. However, it isreiterated that there is no likelihood of the remaining witnesses to beexamined within a short span of time from here on and as such, on thisground alone, the petitioner may be allowed to be enlarged on bail.

15. This Court has considered the arguments advanced by thelearned counsels for the rival parties and is made to understand that,irrespective of the severity of the offence alleged, the prolongedincarceration of the petitioner in custody has been cited as a ground forgrant of bail, the relevant authorities in this regard being cited by thelearned counsel for the petitioner to lay stress on this aspect of thematter.

16. The observation of the Apex Court in the case of K.A. Najeeb(supra) at para 17, 18 and 19 do resemble the factual position of the caseof the petitioner herein. It would be but profitable for the same to bereproduce herein as follow:

“17. It is thus clear to us that the presence of statutoryrestrictions like Section 43D (5) of UAPA per se does not oustthe ability of constitutional courts to grant bail on grounds ofviolation of Part III of the Constitution. Indeed, both therestrictions under a Statue as well as the powers exercisableunder Constitutional Jurisdiction can be well harmonised.Whereas at commencement of proceedings, the courts areexpected to appreciate the legislative policy against grant of bailbut the rigours of such provisions will melt down where there isno likelihood of trial being completed within a reasonable timeand the period of incarceration already undergone has exceededa substantial part of the prescribed sentence. Such an approachwould safeguard against the possibility of provisions likeSection 43D(5) of the UAPA being used as the sole metric fordenial of bail or for wholesale breach of constitutional right tospeedy trial.

18. Adverting to the case at hand, we are conscious of the factthat the charges levelled against the respondent are grave and aserious threat to societal harmony. Had it been a case at thethreshold, we would have outrightly turned down therespondent’s prayer. However, keeping in mind the length of theperiod spent by him in custody and the unlikelihood of the trialbeing completed anytime soon, the High Court appears to havebeen left with no other option except to grant bail. An attempthas been made to strike a balance between the appellant’s rightto lead evidence of its choice and establish the charges beyondany doubt and simultaneously the respondent’s rightsguaranteed under Part III of our Constitution have been wellprotected.

19. Yet another reason which persuades us to enlarge therespondent on bail is that Section 43D(5) of the UAPA iscomparatively less stringent than Section 37 of the NDPS Act.Unlike the NDPS Act where the competent court needs to besatisfied that prima facie the accused is not guilty and that he isunlikely to commit another offence while on bail; there is nosuch precondition under UAPA. Instead, Section 43D (5) of theUAPA merely provides another possible ground for thecompetent court to refuse bail, in addition to the wellsettled considerations like gravity of the offence, possibility oftampering with evidence, influencing the witnesses or chance ofthe accused evading the trial by absconsion, etc.”

17. Even if reliance is placed in the case of Gurwinder Singh(supra), particularly at para 45 of the same, the factual situation of thecase of the petitioner is that the trial has taken a considerable period oftime, to the extent that during the intervening period, the petitioner hasbeen in custody for more than six years or so. It is a matter of course thatsince the charge sheet has been filed and recording of the evidence of thewitnesses is in progress, there is no possibility for the petitioner/accusedperson to tamper with the evidence or witnesses at this point of time.

18. As to the commitment given by the prosecution that the trialwill be expedited with only a few more witnesses to be examined, thisCourt would recall the said observations made at para 7 in the orderdated 01.05.2023 in Crl.A. No. 18/2021 to say that in spite of theassurance given by the prosecution that the trial will be completed by theend of 2023, we are now almost at the fag end of 2024 and still morewitnesses are yet to be examined. On this ground alone this petitiondeserves to be allowed.

19. On an overall consideration of the facts and circumstances ofthe case of the petitioner, this Court hereby set aside and quash theimpugned order dated 22.05.2024 (supra) and directs that the petitionerbe released on bail on the following conditions:-

i.That he shall not abscond or intimidate the witnesses;

ii.That he shall appear before the trial court as and when required;

iii.That he shall not leave the jurisdiction of the NorthEastern States without prior permission of the trial court;Eastern States without prior permission of the trial court; iv.That he shall surrender his passport (if he has one) to thetrial court and can use the same only if allowed by thetrial court; andtrial court and can use the same only if allowed by thetrial court; and

v.That he shall bind himself on a personal bond of ₹1,00,000/- (rupees one lakh) only with two solventsureties of like amount to the satisfaction of the trialcourt.1,00,000/- (rupees one lakh) only with two solventsureties of like amount to the satisfaction of the trialcourt.

20. Needless to say, if the petitioner violates any of the abovestipulated conditions, the prosecution is at liberty to pray for cancellationof bail before the trial court.

21. In view of the above, this appeal is hereby disposed of. Nocosts.

(B. Bhattacharjee) (W. Diengdoh)

Judge Judge