JAVED @ GUDDU Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD Shri W.H. Khan, learned Senior Counsel for the appellant and learned Additional Government Advocate. We have also perused the appeal along with affidavit and annexures filed by the appellant and the counter affidavit filed by the State.

(2.) LEARNED counsel for the appellant has chosen not to file any rejoinder affidavit to the counter affidavit filed by the State.

(3.) THE contentions of the learned counsel for the appellant who presses for bail for the appellant are: (i) that the appellant has been in jail since 13.8.2002, i.e. for a period of almost 7 years and the minimum sentence under section 3 (3) of 'POTA' for a person, who conspires or attempts to commit, or abets an act of terrorism etc., is five years and it is argued that the appellant has exceeded that period in jail, (ii) that in the 'POTA' trial, which the appellant is facing, only one, out of 24 prosecution witnesses, has been examined so far and the appellant ought to be released on bail on account of delay in conduct of his trial, (iii) that the order of the review committee dated 22.9.2004 was in favour of the appellant as the review committee had opined that the case against the appellant was extremely weak and it had recommended to the State to consider withdrawing the prosecution of the appellant under POTA in exercise of powers under section 321 Cr.P.C. and (iv) that POTA having been repealed by the Prevention of Terrorism (Repeal) Act, 2004 (hereinafter referred to as the "Repealing Act" ), under section 2(3) of 'Repealing Act', it was mandatory for the review committee constituted by the Central Government under section 60(1) of the 'POTA' to review all cases of 'POTA' within one year of the enforcement of the 'Repealing Act', which came into force from 21.9.2004, and that this has not been done in the present case. For buttressing this argument reliance was placed on paragraph 41 in Mahmadhusen Abdulrahim Kalota Shaikh(2) v. Union of India and others, (2009) 2 SCC 1.