Ujjair Ahmad @ Ozair Ahmed v. National Investigation Agency,

judgement are read as under: "18. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, 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 UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

¶19Adverting 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."

¶20Considering the facts in this case i.e., 1) the long period of incarceration served by the Appellant; 2) the co-accused charged under similar provisions of UAPA being already released or being sentenced to ten years of imprisonment; 3) the limited role of the Appellant; and 4) the Appellant having deep roots within the society especially in Jharkhand where his family is residing; the Court is inclined to release the Appellant on regular bail subject to furnishing a bail bond in the sum of Rs.10,000/- with a surety of the like amount to the satisfaction of the Trial Court and subject to following conditions.

i) The Appellant is a resident in Ranchi. The residential address shall be provided to the IO, NIA. The Appellant shall intimate the Trial Court by way of an affidavit and to the Investigating Officer regarding any change in residential address.

ii) The Appellant shall not leave the country without prior permission of this Court. The passport of the Appellant shall be surrendered before the Trial Court;

iii) The Appellant shall remain in Ranchi throughout and shall not be permitted to travel to any other city except to Delhi for the purpose of appearing before the Trial Court;

iv) The Appellant is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times;

v) The Appellant shall appear before the concerned SHO PS Doranda, Ranchi on 1st Monday of every month at 11:00 AM and the concerned officer is directed to release him by 12:00 noon after recording his presence and completion of all the necessary formalities;

vi) The Appellant shall appear before the learned Special Court, as and when, the matter is going to be taken up for hearing;

vii) The Appellant shall not, directly, or indirectly, tamper with evidence or try to influence the witnesses in any manner. In case, it is established that the Appellant tried to tamper with the evidence, the Respondent/NIA will be at liberty to apply for cancellation of bail;

viii) If the Appellant indulges in any unlawful conduct including inciting violence through speeches or organising terror funding or any such incident comes to light, the NIA is free to seek cancellation of this bail.

¶21Needless to state that all the observations made in this judgment are only for considering if a prima facie case for bail is made out or not qua the present Appellant only. Nothing mentioned hereinabove shall be construed as an opinion on the merits of the case of the Appellant or other Accused and the observations made herein are for the purpose of present appeal.

¶22The appeal is allowed in the above terms and disposed of accordingly. Applications (if any) are also disposed of.

¶23Copy of the order be communicated to the concerned Jail

Superintendent for necessary information and compliance.

¶24Order be uploaded on the website of this Court forthwith.

PRATHIBA M. SINGH JUDGE

DHARMESH SHARMA JUDGE JANUARY 16, 2025 Rahul/am

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 16th January, 2025 + UJJAIR AHMAD @ OZAIR AHMED .....Appellant Through: Mr. Aarif Ali, Mr. Pankaj Tiwari, Mr. Mujahid Ahmad, Mr. Shahid Nadeem, Mr. Naveen & Mohd. Tansheed, Advs. versus NATIONAL INVESTIGATION AGENCY, .....Respondent Through: Ms. Shilpa Singh, SPP, NIA with Mr. Himanshu Jain, Dy. SP., AIO. CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE DHARMESH SHARMA Prathiba M. Singh, J. (Oral) 1. This hearing has been done through hybrid mode. Background 2. The present appeal has been filed by the Appellant under Section 21(4) of the National Investigation Agency, 2008 (hereinafter 'NIA Act') read with Section 528 of the BNSS, 2023 challenging the impugned order dated 19th September, 2024 by which his bail application has been rejected. 3. An FIR, being RC No.06/2012/NIA/DLI, was registered by the NIA on 10th September, 2012 at PS NIA, New Delhi for various offences under the Unlawful Activities (Prevention) Act, 1967 (hereinafter 'UAPA') against certain persons which did not include the Appellant herein. Thereafter, chargesheet was filed in the said FIR on 17th March 2013 which only charged five accused persons. However, when the supplementary chargesheet was filed on 20th February, 2014, further accused persons were added including A- 9 – Ujjair Ahmad @ Ozair who is the Appellant herein. 4. The Appellant was arrested on 30th October, 2013. He was charge- sheeted under Sections 17, 18, 19, 38(2), 39(2) and 40(2) of the UAPA. The Appellant had sought regular bail before the Special NIA Court which was, however, rejected in the following terms: "xxx xxx xxx 8. Till date, in the present matter, six witnesses have been examined. However, nothing has come in the evidence of these witnesses which would render substance to the contention of accused/applicant that he has been able to cross twin tests. Otherwise also, bare reading of section 43 (D) (5), shows that the opinion in respect of reasonable ground to believe that acquisition are not prima facie., true is to be formed from the perusal of case diary or the report made u/s 173 of the code. Therefore, the statute is silent on the aspect if at the time of considering the plea of bail, evidence recorded during trial is to be considered or not. However, it cannot be said that there is any ambiguity in the language used in section 43 (D) (5) of UA (P) A. Hence, when language in the concerned provision is clear and categorical, the mandate of law is also clear. Said mandate u/s 43 (D) (5) of UA (P) A is as to what material is to be considered at the time of adjudicating of application seeking bail. Thus, when the language is so clear, trial court cannot insert any other dimension to it through interpretation. Further, now the recording of evidence has begun. Bunch dates are fixed in this matter and on each date two witnesses are summoned for examination. These steps are taken as an attempt to speed up the trial. 9. Hence, in view of the above discussion, present application filed on behalf of accused/applicant Ujjair Ahmad seeking bail is hereby dismissed. Application stands disposed of accordingly. Copy dasti. Copy of order be sent to Jail Superintendent concerned to convey the decision to accused/applicant." Submissions 5. The submission of ld. Counsel for the Appellant is that the Appellant deserves to be granted bail on the following grounds: i) The long period of incarceration undertaken by the Appellant since 2013 which is more than 11 years; ii) That the other co-accused who had pleaded guilty have been either sentenced to the period already undergone or to 10 years which is much lesser than the Appellant's period of incarceration; 6. That the allegations in the chargesheet against the Appellant are primarily two-fold that he was part of the Muslim Student Federation (MSF) which is claimed to be an off-shoot of Students Islamic Movement of India (SIMI) and secondly that he had given some amount to one Mr. Haider Ali which