Jubair Khan v. The State of Assam

ORDER

09.01.2023

Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mr. I.U. Choudhury, learned counsel for the accused and Mr. B.B. Gogoi, learned Addl. P.P. for the State respondent.

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¶2This application, under Section 439 of Cr.P.C., is preferred for the second time by accused, namely, Jubair Khan, who has been languishing in jail hazoot in connection with Barpeta P.S. Case No. 763/2022, under Sections 120(B)/121/121A IPC, read with Sections 17/18/18(B)/19/20 of the Unlawful Activities (Prevention) Act, for granting bail.

¶3The said case has been registered on the basis of one FIR lodged by one Shri Ranjan Doley, Inspector of Police, Barpeta P.S. to the effect that during investigation of the Barpeta P.S. Case No.268/2022, under Sections 120(b)/121/121A of the IPC, read with sections 17/18/18(B)/19/20 of Unlawful Activities (Prevention) Act, 1967, read with Section 12(1)(C) Passport Act and Section 14A(b) of the Foreigners Act and Barpeta P.S. Case No.419/2022, under Sections 120(b)/121/121A IPC, read with Section 17/18/18(B)/19/20 of Unlawful Activities (Prevention) Act, 1967, regarding existence of an important Jehadi (terror) outfit based in Bangladesh and operating in Barpata District. It was learnt that several modules of the proscribed Ansarullah Bangla Team (ABT) having affiliation to Al-Qaeda in the Indian Sub-Continent (AQIS) are active in Barpeta District and that members/supporters of ABT were indoctrinating and motivating the youth/men of Barpeta to join Jehadi outfits and work in modules 'Ansas' (sleeper cells) for creating a base for Alqueda and its manifestations in various form of names and styles in India, all of which are declared terrorist organizations in India as per the provisions of Unlawful Activities (Prevention) Act. It was also found that these modules, comprising of one Jubair Khan, Rafiqul Islam, Dewan Hamidul Islam, Mainul Hoque, Kazibur Hussain, Muzibaur Rahman, Sahnur Alam, Sahjahan Ali and others, have hatched criminal conspiracy with other members of the ABT along with a group of men/youths of Page No.# 3/5 the District for facilitating further training of indoctrinated youths/men for waging Jehad and related terrorist activities in the District. They are working towards advocating, abetting, inciting, assisting, harboring, recruiting and collecting funds for organizing and committing unlawful and terrorist activities in the name of Jehad.

¶4Mr. Choudhury, learned counsel for the accused submits that the accused was arrested on 29.07.2022 and since then he has been languishing in jail hazoot for last 165 days. Further, Mr. Choudhury submits that no incriminating materials have been recovered from the possession of the accused Jubair Khan and that he is innocent and he is ready to cooperate with the investigating agency and further it is submitted that the bar of section 43[D][5] will not come into play here in this case as the allegation leveled against the accused are false, and therefore, it is contended to allow the petition.

¶5On the other hand Mr. Gogoi, learned Addl. P.P. has opposed the petition on the ground that investigation is going on and some of the accused are yet to be arrested and there is likelihood of committing similar offence if enlarged on bail. Mr. Gogoi further submits that the FSL report and the CFSL report are yet to be collected, and therefore, it is contended to dismiss the petition.

¶6Having heard the learned counsel for both the parties, I have carefully gone through the petition and the documents placed on record and also perused the case diary produced before this court with the assistance of Mr. Gogoi, learned Addl. P.P.

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¶7It appears that the accused was arrested on 29.07.2022, and science then he has been languishing in jail hazoot for last 165 days. And from the seizure list, which is available in the case diary reveals that no incriminating materials have been recovered from the possession of the accused, except however, 2 mobile phones. And further, having gone through the materials collected so far in the case diary and also having considered the submissions of learned Advocates of both sides, this Court is unable to derive its satisfaction that there exist any reasonable ground for believing that the accusation against the accused is prima facie true. This being the position, the bar of Section 43(D)

(5) of the UA(P) Act would not stand in the way of granting the privilege of bail to the accused. Be it mention here that Section 43(D)(5) of the UA(P) Act is less stringent than that of Section 37 of the NDPS Act, as held by a three Judge Bench of Hon'ble Supreme Court in Union of India vs. K.A. Najeeb, reported in

(2021) 3 SCC 713, where it is held that Section 43(D)(5) of the UA(P) Act merely provides another possible ground for 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 and chance of the accused evading the trial by absconding, etc.

¶8Having considered above and also the period of detention and further considering the stage of investigation, this Court is inclined to allow this petition.

¶9Accordingly, it is provided that on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) only, with one surety of like amount to the satisfaction of the learned Sessions Judge, Barpeta, the accused person, named above, shall be enlarged on bail, in connection with the Barpeta P.S. Case No. 763/2022.

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¶10In terms of above, this bail application stands disposed of.

¶11The case diary be returned.

JUDGE Comparing Assistant

Page No.# 1/5 GAHC010260752022 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./3552/2022 JUBAIR KHAN S/O LATE SAHADAT ALI @ SAHADAT KHAN VILL- KHUDRA PALADI P.S. SARTHEBARI DIST. BARPETA, ASSAM VERSUS THE STATE OF ASSAM REP. BY THE PP, ASSAM Advocate for the Petitioner : MR H R A CHOUDHURY Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN