Crl.A./34/2024 of WALLAM JINGSUK BARIM Vs THE UNION OF INDIA AND 2 ORS. on 17 September 2024

ORDER

1. On 30.01.2022, a bomb blast occurred at Police Bazaar,Shillong resulting in damage to entrance steps, walls, glass panes andsignage of one store owned by Shri Larsing Lalhming Dey Sawain,Managing Director, Centre Point Group Enterprise, Shillong.

2. On an FIR filed by the complainant, Shri Larsing LalhmingDey Sawain, police registered a police case bearing Sadar P.S Case No.27 (01) 2022, under Section 427 IPC read with Section 5 of theExplosive Substance Act, 1908. In view of the nature of the incident andthe parties involved, the National Investigation Agency was directed totake over the investigation of the case and the case was re-registered asNIA Case No. RC-07/2022/NIA-DLI under Section 120B/435/436 IPCread with Section 6 of the Explosive Substance Act, 1908 and Section10(b)(ii) and 13(1) & 13(2) of the UA(P) Act, 1967.

3. In course of investigation, 9(nine) accused persons wereapprehended including 3(three) Children in Conflict with Law(CCL) andthereafter, a charge sheet was filed on 29.07.2022. The case proceeding in the Court of the learned Special Judge (NIA), Shillong is at the stageof recording of evidence of the prosecution witnesses.

4. Heard Mr. P. Yobin, learned counsel for the appellant, whohas submitted that the appellant was implicated as an accused in the saidSpl (NIA) Case No. 1 of 2022 and according to the charge sheet, he wascharged under Section 120B IPC read with Section 6 of the ExplosiveSubstance Act, 1908. Since his arrest, he is in custody for about 2 yearsand 4 months or so.

5. The learned counsel has further submitted that the chain ofevents as far as the appellant is concerned, is that he was requested byDavid Nongkseh (A-1) to get him some explosive materials after whichhe contacted his friend Dalios Malieh (A-4) to procure the same. DaliosMalieh who has some gelatine sticks with him in turn procured the fusewires and detonators from one Tyngshiangborlang Rani (A-5).

6. Again, the learned counsel has submitted that Dalios Maliehand Tyngshainborlang Rani were also arrested and named in the chargesheet as A-4 and A-5 respectively, and the charges against them was alsothe same as that of the appellant, that is, under Section 120B IPC readwith Section 6 of the Explosive Substance Act, 1908.

7. The appellant has filed as many as five bail applicationsseeking enlargement on bail, however, the learned Trial Court hasrejected all such applications. The 5[th] bail application was rejected videthe impugned order dated 30.05.2024, the main reason cited for rejectionof the prayer for bail is that the appellant (A-3) is directly connectedwith the main accused person (A-1) when he had procured the explosivematerials and handed over the same to A-1, which according to thelearned counsel cannot be a ground for further incarceration of theappellant/A-3 when the chain also includes the involvement of A-4 andA-5 respectively, who were since enlarged on bail.

8. The learned counsel has again submitted that the appellant isa young person studying in college and having been in custody for abouttwo and a half year, also coming from a poor family, his furtherincarceration would hamper his future and, if enlarged on bail, he willabide by any conditions to be imposed by this Court.

9. Dr. N. Mozika, learned DSGI appearing for the respondentshas refuted the argument of the learned counsel for the appellant bypointing out that the materials on record and the evidence of the relevantwitnesses has clearly proved that the case against the appellant herein isvery serious, wherein the act by itself has threatened the security of the land, the involvement of the appellant being very apparent, he cannot beenlarged on bail at this stage. However, if this Court is inclined to allowthe appellant to go on bail, then stringent conditions may be imposed,further submits the learned DGSI.

10. We have heard the learned counsels for the parties and havealso perused the materials on record, including the impugned order inquestion.

11. As has been submitted, 64(sixty-four) prosecution witnesseshave been cited out of which 15(fifteen) of them have been examined incourt. Though the prosecution may not summon all of the remainingwitnesses, however a substantial number of witnesses are yet to becalled to court for recording of their deposition. Though the ground ofdelay have not been stressed upon by the appellant, the same will still betaken into consideration as it is observed that only 15(fifteen) out of the64(sixty-four) listed witnesses have been examined so far, the trial maycontinue for a slightly longer duration under such circumstances andspeedy trial has always been the oft repeated refrain when it comes toproceedings in a criminal trial.

12. Though this Court would not dwell on the merits of the casebefore the Trial Court at this juncture, but would only noticed that the main thrust of the appellant’s argument is on the issue of parity,inasmuch as, the fact that two accused persons, A-4 and A-5 who werecharged under the same sections of law as those of the appellant/A-3have since been released on bail, there cannot be any justification for theappellant/A-3 not to similarly extended the same benefit, considering thefact that all the three accused persons in question stands on the samefooting as far as the accusation against them is concerned.

13. It is well settled that the law of parity when applied to asituation concerning the applicability of principles of bail jurisprudence,the primary principle being “Bail and not Jail”, meaning thereby thatthe liberty of a citizen is sacrosanct and has to be safeguarded, thoughwithin the confines and limit of law, where a co-accused has beenenlarged on bail under similar sets of circumstances, as is the caseherein, then failure to apply the principle to the benefit of the appellantin this case will only be seen as a discriminatory action. The learnedSpecial Judge in making observations that the appellant’s prayer forgrant of bail based on the ground of parity cannot be accepted as he wasthe one who has directly supplied the explosive to A-1, is not wellfounded as only during the trial will the complicity and role played bythe individual accused persons be revealed.

14. Under such circumstances, we are of the considered opinion

14. Under such circumstances, we are of the considered opinion that the appellant has made out a case in this appeal to upset theimpugned order dated 30.05.2024 which is hereby done so.

15. The appellant/A-3 is directed to be released on bail, if notwanted in other case(s) on his subscribing to comply with the followingconditions:

i)That he will not abscond or tamper with the witnesses;

ii)That he will not leave the jurisdiction of this Statewithout the prior permission of the Trial Court;without the prior permission of the Trial Court;

iii) That he shall appear in court as and when required; and iv)That he shall bind himself on a personal bond of ₹50,000/- (Rupees fifty thousand) with two sureties oflike amount to the satisfaction of the Trial Court.50,000/- (Rupees fifty thousand) with two sureties oflike amount to the satisfaction of the Trial Court.

16. With the above, this appeal is hereby disposed of. No costs.

(B. Bhattacharjee) (W. Diengdoh)

Judge Judge