Bombay High Court
Chotu @ Srinumulla Gawade vs State Of Mah. Thr. Ps Dhamaracha Tehsil … on 17 January, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-NAG:576-DB
52.apeal.710.23.jud.doc 1/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.710 OF 2023
Appellant : : Chotu alias Srinu Mulla Gawade,
Aged 23 years, Occupation : Agriculture,
R/o Bhangarampeth, Taluka Ahiri,
District Gadchiroli (Maharashtra),
(Presently in Chandrapur Jail in MCR)
- Versus -
Respondent : : State of Maharashtra,
through Police Station, Dhamaracha,
Tehsil Ahiri, District Gadchiroli.
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Mr. Salim I. Khan, Advocate for the Appellant.
Mrs. M.H. Deshmukh, A.P.P. for the Respondent/State.
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CORAM : NITIN B. SURYAWANSHI AND
M.W. CHANDWANI, JJ.
RESERVED ON : 10th JANUARY, 2025.
PRONOUNCED ON : 17th JANUARY, 2025.
J U D G M E N T :
(Per M.W. Chandwani, J.)
This is an appeal under Section 21(4) of the National
Investigation Agency Act, 2008. The appellant-original accused No.9 was
arrested on 21.08.2022 in Crime No.02/2022, registered with Sub-Police
Station, Dhamracha, Tq. Ahiri, District Gadchiroli for the offences
52.apeal.710.23.jud.doc 2/10
punishable under Sections 13, 18, 20, 23 and 39 of the Unlawful Activities
(Prevention) Act, 1967 (hereinafter referred to as ‘UAP Act‘ for short),
Sections 6 and 9 (b) of the Explosives Act, 1884, Sections 4 and 5 of the
Explosive Substances Act, 1908 and Sections 34 and 120-B of the Indian
Penal Code, 1860.
02. The First Information Report indicates that on 19/02/2022,
Incharge Police Station, Sachin Ghodke, had received secret information
that the persons named; Raju Gopal Salla and Mohd. Kasim Shadulla s/o
of Mohd. Kasim, both residents of Karimnagar, have procured explosives
for the banned organization CPI (Maoist) to overthrow the constitutionally
formed democratic Government and have kept the said explosive
substances at Mouja Bhangarampetha in the dwelling house of Kashinath
alias Ravi Mulla Gawde, Sadhu Lacchu Talandi and Chhotu alias Shinu
Mulla Gawde.
03. The aforesaid information was shared with the Superintendent
of Police, Additional Superintendent of Police, Gadchiroli and Sub
Divisional Police Superintendent, Jimalgatta. The police party along with
panchas then, under the supervision of the aforesaid officers, entered the
deep forest and reached the house of Sadhu Laccha Talandi. The informant
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police officer called Sadhu and in response, four persons came out of the
house. Their names were Sadhu, Kashinath, Raju and Mohd. Kasim
Shadulla. Thereafter, house search was conducted in the presence of
panchas. Incriminating material including Naxal pamphlets, banners, FM
Transceiver, battery, cortex wires, etc. was found in the house. On
interrogation, four persons informed police that those materials were
procured for sabotaging the police party with the motive to commit anti-
national activity. It is then stated that the name of the appellant and one
other person was disclosed by accused persons. The investigating officer
then recorded statements of witnesses. Appellant-accused was arrested
and at his instance, gelatin sticks used for explosion came to be recovered.
It was revealed that the appellant used to supply the gelatin sticks to the
co-accused for carrying out explosions.
04. Mr. Salim Khan, learned Counsel appearing on behalf of the
appellant would submit that the learned Special Judge has erroneously
rejected the bail application of the appellant by ignoring the fact that the
alleged recovery of cortex wires and gelatin sticks came to be made after
six months and therefore, it is not believable. According to him, the
alleged recovery is suspicious and doubtful. If this material is ignored,
then there is no material on record which establishes a prima facie case
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against the appellant of having committed the offence under the UAP Act
and therefore, the bar under Section 43-D(5) will not be applicable to the
case of the appellant. To buttress his submission, he seeks to rely on the
decision of the Supreme Court in the case of Krishan vs. State of Haryana1,
wherein the Supreme Court in paragraph 8 has observed as under :
“8. More than one factor renders the prosecution theory
regarding recovery very suspicious and doubtful. The first
factor is that the recovery was allegedly made one month
and four days after the occurrence. Secondly, the recovery
was made from open space in a garden. Thus, the place was
easily accessible to many. Thirdly, neither PW-15 nor PW-
20 have stated that the weapon and cartridges were buried
underground were recovered only after digging. Lastly,
though independent witnesses were available, they were not
made witnesses to the Panchnama made pursuant to the
alleged statement made by the appellant. As the recovery of
the weapon at the appellant’s instance cannot be believed,
the decisions relied upon by the learned counsel for the
respondent are not significant at all. She relied upon the
decisions which hold that tin certain cases, a conviction can
be based on the recovery of the weapon of offence at the
instance of the accused.”
05. Next learned Counsel Mr. Khan would submit that the
appellant is in jail since 21/08/2022; the trial has not begun and even the
1 2024(2) Mh.L.J. (Cri.) 535
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charge is not framed, therefore, there is a violation of the accused’s right to
speedy trial guaranteed under Article 21 of the Constitution of India and
therefore, the statutory restriction under Section 43-D(5) of the UAP Act
does not oust the power of the constitutional court to grant bail on the
ground of violation of fundamental rights. To buttress his submission, he
seeks to rely on a series of decisions, which are as under :
(1) Union of India vs. K.A. Najeeb – 2021 AIR Supreme Court 712.
(2) Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari vs. State of
Uttar Pradesh – 2024(3)SCC (Cri.)603.
(3) Javed Gulam Nabi Shaikh vs. State of Maharashtra and another –
2024(9) SCC 813.
(4) Jalaluddin Khan vs. Union of India – delivered by Supreme Court in
Criminal Appeal No.3173 of 2024.
The common golden thread running from these authorities is
that, personal liberty enshrined under Article 21 of the Constitution of
India is overarching and sacrosanct. A constitutional court cannot be
restrained from granting bail to an accused on account of restrictive
statutory provisions in a penal statute if it finds that the right of the
undertrial accused under Article 21 of the Constitution of India has been
infringed. The provisions of a penal statute, howsoever, stringent it may
be, Constitutional Court has to lean in favour of the constitutionalism and
the rule of law of which, liberty is an intrinsic part.
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06. Conversely, learned Additional Public Prosecutor Mrs. M.H.
Deshmukh appearing on behalf of the State vehemently objected the
appeal on the ground that there is material against the appellant in the
charge-sheet and the accusations are prima facie true and therefore,
Section 43-D(5) of the UAP Act comes into play. According to her, there
are statements of witnesses against the appellant and the recovery of
incriminating articles at his instance goes to prima facie connect the
appellant with the crime under the provisions of the UAP Act. Therefore,
the Special Judge has rightly rejected the application. According to her,
the appellant was absconding and has been arrested after six months. The
offence is serious in nature and requires thorough investigation which has
to be conducted by the investigating agency. There is nothing on record to
suggest that due to the fault of the prosecuting agency, the trial has not
begun and the period of incarceration is not so significantly long that it
would lead to the violation of Article 21 of the Constitution of India.
Hence, she sought rejection of the appeal.
07. In support of her argument, she seeks to rely on the case of
Gurwinder Singh vs. State of Punjab and another2 and National
Investigation Agency vs. Zahoor Ahmad Shah Watali3.
2 (2024) 5 SCC 403
3 (2019) 5 SCC 1
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08. With the able assistance of the learned Counsel for the
appellant as well as the learned A.P.P., we have gone through the charge-
sheet, particularly the statement of witnesses Pramod Madhukar Kodape
and Mohan Malayya Pannela. Both of them have stated in their statements
that in the month of June, the appellant supplied a bundle of red coloured
wire to the co-accused. The charge-sheet further reveals that on
25/08/2022, a pink coloured plastic bag containing gelatin sticks which is
used for the purpose of carrying out explosions, has been recovered and
seized from appellant.
09. Needless to mention that, the proviso to Section 43-D(5) of
the UAP Act creates embargo on releasing the accused on bail if the Court
finds that there are reasonable grounds for believing that the accusation
against the accused is prima facie true. After considering the aforesaid
material, we can satisfactorily say that there are reasonable grounds for
believing that the accusation against the appellant as regards commission
of the offence under the UAP Act is prima facie true. Therefore, we find
that the learned A.P.P. is right in her submission that the bar under Section
43-D(5) of the UAP Act will be applicable to the case in hand. A reference
can also be made to the case of Gurwinder Singh (supra) relied upon by
the learned A.P.P. for the State, wherein the Supreme Court in paragraph
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28 has observed as under :
“28. In this background, the test for rejection of bail
is quite plain. Bail must be rejected as a ‘rule’, if after
hearing the Public Prosecutor and after perusing the
final report or Case Diary, the Court arrives at a
conclusion that there are reasonable grounds for
believing that the accusations are prima facie true. It is
only if the test for rejection of bail is not satisfied – that
the Courts would proceed to decide the bail application
in accordance with the ‘tripod test’ (flight risk,
influencing witnesses, tampering with evidence). This
position is made clear by Sub-section (6) of Section 43-
D, which lays down that the restrictions, on granting of
bail specified in sub-section (5), are in addition to the
restrictions under the Code of Criminal Procedure or
any other law for the time being in force on grant of
bail.”
10. So far as the case of Krishan (supra) relied upon by the
appellant is concerned, the Supreme Court was dealing with the appeal of
the accused against conviction for a double murder. While appreciating
the evidence of recovery, the Court made the above said observations and
in absence of other evidence, acquitted the appellant therein. Whereas, in
the present case, there is a statutory bar under Section 43-D(5) of the UAP
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Act, which speaks about prima facie case and the question whether the
recovery is believable or not is a matter of trial. Therefore, the appellant
will not get any help from the decision in the case of Krishan (supra).
11. This takes us to the next point raised by the appellant
regarding his incarceration and infringement of his fundamental right
under Article 21 of the Constitution of India. There is no dispute that if
Article 21 of the Constitution of India is infringed, statutory restriction
under special statute would not come in the way.
12. We have gone through the charge-sheet. It appears that the
offence came to be registered on 19/02/2022 and since then, the
appellant was absconding and came to be arrested on 21/08/2022. No
doubt, till date the charges have not been framed, but no material has been
brought on record by the appellant to show that in spite of his readiness,
the matter could not be taken up. Be that as it may, the observations of
the Supreme Court in the decisions relied upon by the appellant were
made in the cases wherein, the accused persons were in the jail for a
period ranging between four years to ten years and the trial had not begun.
Whereas, in the present case, the offence was uncovered in the year 2022
and the appellant himself was absconding for about six months.
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13. Considering the facts of the present case, it cannot be said that
the fundamental right of the appellant is being infringed due to delay in
the trial. We find no infirmity in the order of the designated Court and
therefore, the impugned order does not require any interference. For the
reasons mentioned in the foregoing paragraphs, the appeal fails and it is
dismissed accordingly.
(M.W. Chandwani, J.) (Nitin B. Suryawanshi, J.) *sandesh