RIYAZUDDIN HISAMUDDIN KAZI Vs. NATIONAL INVESTIGATING AGENCY

JUDGEMENT

(1.) In view of not before order passed by Justice A.S. Gadkari vide order dtd. 21/9/2022, the present appeal is listed before this Bench.

(2.) By this appeal, preferred under sec. 21 of the National Investigation Agency Act, 2008 ('the NIA Act'), the appellant (A-4) has impugned the order dtd. 1/3/2022 passed by the Special Court (NIA), Greater Mumbai, rejecting his application for bail and as such seeks his enlargement on bail in connection with NIA RC 01/2021/NIA/MUM (NIA Special Case No. 1090/2021), for the alleged offences punishable under Sec. 120-B and 201 of the Indian Penal Code ('IPC'). Submissions of Dr. Yug Chaudhary :

(3.) Dr. Yug Chaudhary, learned Counsel for the appellant submits that the appellant has been charge-sheeted only for the offences punishable under Sec. 120- B and 201 of the IPC, both of which, are bailable offences. He submits that the appellant was not involved in the planting of the gelatin sticks in the Scorpio vehicle which was parked near Antilia, nor was he concerned with the murder of Mansukh Hiren. He submits that the only allegation against the appellant pertains to destruction of evidence with and under the orders of the main accused Sachin Waze (A- 1), after the commission of the main offence. Dr. Chaudhary submits that a perusal of the statements of the witnesses would reveal that there is absolutely no material on record to show that the appellant was involved in the destruction of evidence, as alleged by the prosecution. Dr. Chaudhary submits that the statements of the witnesses would reveal that the appellant, alongwith witness-Prakash Howal had collected CCTV Cameras, DVRs, CPUs, Registers and Bill Books from various places, on the direction of Sachin Waze (A-1) and that it was Sachin Waze (A- 1), who had directed the appellant and witness- Howal not to create any documentation of the seized articles. Learned Counsel submits that despite the same, the appellant made station diary entries concerning the seized articles, which clearly show that he had no knowledge of the intent of Sachin Waze. Dr. Chaudhary further submits that it is a matter of record that the NIA had applied for sanction under Sec. 45A of the Unlawful Activities (Prevention) Act, 1967 ('UAPA') as against all the accused, however, sanction was not accorded to the appellant, pursuant to which, the other coaccused have been prosecuted, apart from the other provisions, even under Sec. 16, 18 and 20 of the UAPA. Dr. Chaudhary submits that since the appellant has been charge-sheeted only for the offences punishable under Sec. 120-B and 201 of the IPC, the question of applying the bar under sec. 43D(5) of the UAPA does not arise. He submits that neither has any sanction been accorded under sec. 39 of the Arms Act nor under sec. 7 of the Explosive Substances Act. He submits that the Sec. alleged against the appellant are bailable and that as a matter of right, the appellant is entitled to be enlarged on bail. He submits that the appellant was arrested on 10/4/2021 and has been in custody since then i.e. for about one year and eight months, for bailable offences.