Mustafa @ Mufti Mustafa v. The State of Assam

ORDER

19.01.2024 Heard Ms. S. Nargis, learned counsel for the accused and Mr. P.S. Lahkar, learned Addl. P.P. for the State respondent. Page No.# 2/5

¶2This application, under Section 439 of Cr.P.C., is preferred by accused, namely, Mustafa @ Mufti Mustafa, who has been languishing in jail hazot since

07.09.2022, in connection with Sessions Case No. 10/2023, arising out of 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) of the 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 Jihadi (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 Jihadi outfits and work in modules 'Ansas' (sleeper cells) for creating a base for Al-Qaeda 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, Shahanur 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, harbouring, recruiting and collecting funds for organizing and committing unlawful and terrorist activities in the name of Jehad.

¶4Ms. Nargis, the learned counsel for the accused submits that the accused were arrested on 07.09.2022, and since then they have been languishing in jail hazoot for more than one year four months. Further, Ms. Nargis submits that no incriminating materials have been recovered from the possession of the accused person and that he is not a member of Ansarullah Bangla Team (ABT) and the said organization is not a banned organization and that the case has already been charge sheeted and that as many as 56 witnesses have been cited in the charge sheet and though charge have been framed against the accused on

27.07.2023, till date only one witness is examined by the prosecution side and there is no immediate chance of completion of trial and that the present accused is innocent and he will appear before the court regularly and that some of the co-accused have already been enlarged on bail by this court and the present accused also stands on the same footing and therefore, maintaining parity, with the accused who have been already enlarged on bail, Ms. Nargis contended to extend the privilege of bail to the present accused also.

¶5On the other hand Mr. Lahkar, learned Addl. P.P. has opposed the petition on the ground that having found sufficient materials against the accused persons, the learned court below had already framed charges only on

27.07.2023, and one witness has already been examined by the learned court below. Mr. Lahkar further submits that if enlarged on bail the accused may commit similar offence and there is also possibility of jumping bail, and Page No.# 4/5 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 scanned copy of the record of the learned court below.

¶7It appears that the accused were arrested on 07.09.2022, and since then they have been languishing in jail hazoot for more than one year four months. The scanned copy of the record also reveals that the learned court below had framed charge against the accused persons under sections 18/19/20 of UA (P) Act and till date only one witness has been examined by the learned court below out of 56 witnesses cited in the charge sheet. Since large numbers of witnesses are cited in the charge sheet there is no likelihood of trial being completed within reasonable time.

¶8Further, it appears that though the learned court below had framed charge against the present accused, along with other accused persons, under sections 18/19/20 of UA (P) Act, and that the bar of Section 43(D) (5) of the UA(P) Act is applicable yet, it has been well settled in the case of Union of India vs.K.A. Nazib reported in (2011) 3 SCC 713 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. And in the case of National Investigating Agency vs.Zahoor Ahmed Shah Watali reported in (2019) 5 SCC 1 it has been held that the degree of difference between the satisfactions to be recorded by the court is different and lighter from other special statute like TADA, MCOCA and NDPS Act. Page No.# 5/5

¶9In the instant case, the scanned copy of the record of learned court below indicates that nothing has been recovered from the possession of the present accused. Further, it appears that some of the co-accused has already been enlarged on bail by this court on the ground that there is unlikelihood of completion of trial within reasonable period as large numbers of witnesses were cited in the charge sheet and till date only one witness have been examined by the prosecution side.

¶10Having considered above, and also having adjudged the submissions of learned Advocates of both sides and having gone through the materials collected in the charge sheet, and further having reckoned the materials available in the case diary as a whole, and further balancing the period of detention with that of the nature and gravity of the offence this Court is of the view that a prima facie case for granting bail to the accused person is made out.

¶11Accordingly, 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 Mustafa @ Mufti Mustafa shall be enlarged on bail, in connection with the Barpeta P.S. Case No. 763/2022. It is being clarified that the above observations, made herein above, is only for the purpose of disposing of this bail application not on the merit of the case.

¶12In terms of above, this bail application stands disposed of. JUDGE Comparing Assistant

Page No.# 1/5 GAHC010284962023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./4572/2023 MUSTAFA @ MUFTI MUSTAFA S/OMD. RUSTAM ALI R/O VILL- SAHARIA GAON P.S. MOIRABARI DIST. MORIGAON, ASSAM VERSUS THE STATE OF ASSAM TO BE REP. BY THE LEARNED PP, ASSAM Advocate for the Petitioner : MS. S K NARGIS Advocate for the Respondent : PP, ASSAM BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN