NASHIDUL HAMSAFAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The appellant is the 16th accused in S.C No. 1/19/NIA pending before the Special Court for Trial of NIA Cases, Ernakulam. The appeal is against the dismissal of a bail application in which the grounds raised were (i) the injuries suffered by the appellant in an earlier accident which requires Ayurvedic treatment,(ii) the medical complaints of his aged parents, (iii) the fact of the applicant having been continued in judicial custody for two and half years, (iv) trial having not yet commenced, (v) the further delay that would again ensue in the commencement and completion of trial and (vi) the factum of A17 who was arrested along with the appellant having been released from custody.

(2.) We have heard Sri.S.Rajeev, learned Counsel for the appellant and Sri Arjun Ambalapatta, Senior Public Prosecutor(NIA) for the respondent.

(3.) Learned Counsel for the appellant submits that the application for bail was never considered on merits by this Court and the earlier appeal was withdrawn by the appellant. A Full Bench of this Court in Younus Aliyar v. Sub Inspector of Police , 2016 3 KerLT 877 resolved an apparent conflict between two decisions of Coequal Benches as to the effect of the proviso to subsection(5) of S.43D of the Unlawful Activities (Prevention) Act, 1967 (UAPA). The Full Bench had laid down clear guidelines as to how bail applications at various stages are to be considered and made a specific rider that the principles thus enunciated would all the same be subject to the decisions of the Hon'ble Supreme Court interpreting Articles 21 and 22 of the Constitution of India. Though later to it, the decision of the Hon'ble Supreme Court in Union of India v. K.A Najeeb , 2021 3 SCC 713 held that the statutory restriction under S.43D(5) of the UAPA, does not oust the power of the Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution of India. It is argued that the appellant has been continuously incarcerated for the last two and half years and a mere reading of para 19 of the impugned order, reveals that there is no chance of the trial being commenced and concluded in the near future.