Bombay HC grants bail to persons accused under UAPA for alleged links with Dawood Ibrahim

Bombay High Court: In two criminal appeals heard together by the Division Bench of Bharati Dangre and Manjusha Deshpande, JJ., the accused persons against whom the offences punishable under Sections 17,18 and 20 of the Unlawful Activities (Prevention) Act, 1967 (“UAPA”), Sections 121-A¹ and 120-B² of the Penal Code, 1860 (“IPC”), read with Sections 8-C, 20, and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS”) were registered. The Court found that accused 1 was alleged to have been associated with Dawood Ibrahim, based on the statements of prosecution witnesses. However, it was held that Dawood Ibrahim being declared a terrorist in individual capacity, any person’s association with him on the pretext of belonging to the D-gang/Dawood gang will not attract the provisions of Section 20, UAPA. Further, for the offences punishable under the NDPS, the Court held that the quantity seized from accused 2 was small, and mere sharing of pictures of NDPS-prohibited substances definitely does not attract the provisions of the NDPS. Therefore, the accused persons were granted bail subject to certain conditions.

Background

Two appeals were filed by accused 1 and accused 2 (’accused persons’) in the NIA Special Case No. 153 of 2023, heard together by the Court.

Accused 1 was arrested by the Anti-Terrorist Squad, Police Station, Juhu, on the account of information received, that a confidante of Dawood Ibrahim along with his associates, was financing several illegal activities in India. During the investigation, it was revealed that accused 1, with his associates’ aid, had transferred an amount of Rs. 25,000 to a person who was a member of the Dawood gang. Accused 1 contended that his arrest was illegal, and that there was no recovery of any NDPS-prohibited contraband from his possession.

Accused 2 was arraigned since 600 grams of ganja was recovered from his possession, and nothing else. It was alleged against accused 2 that he habitually used to order ganja from abroad into India, and that certain photographs were also exchanged between accused persons.

Court’s analysis and decision

The Court noted the respondent counsel’s statement that no material in the chargesheet justified the invocation of Sections 17 and 18 of the UAPA, however, they had extracted relevant documents to establish the charge under Section 20 of the UAPA.

The Court perused the documents and noted that the alleged incident took place in 2013, when a prosecution witness while meeting with certain persons, found that accused 1 was also present there, who was introduced by another person as a person belonging to the ‘D’ company. A statement of another witness referred to accused 1 belonging to the ‘D’ gang. Furthermore, statements recorded of more witnesses referred to accused 1 being part of the ‘D’ gang. The Court noted that accused 2 was not referred to in any of these statements. The statements were recorded as prescribed under Sections 161³ and 164⁴ of the Code of Criminal Procedure, 1973.

The Court perused Section 20 of the UAPA, that prescribes the punishment for being a member of a terrorist gang or a terrorist organisation.

The Court while noting, emphasised that a terrorist organisation or a terrorist individual should be added to the Schedule I, and Schedule IV, respectively, of the UAPA, as provided under that legislation. The adding of names is done by the Central Government, which is also permitted to add the names of organisations or individuals identified as “terrorist” by a United Nations Security Council (“UNSC”) resolution. The Court further emphasised that Dawood Ibrahim has been designated as a global terrorist by the UNSC Resolution 1267 and has been notified as a “terrorist” under the Schedule IV of the UAPA.In the instant case, the Court viewed that testimonies and statements of prosecution witnesses, referring to accused 1 as a member of the “D-gang”, would not attract the offence under Section 20, UAPA, as Dawood Ibrahim has been declared a terrorist in individual terms and any association with him on the pretext that a person belongs to D-gang or Dawood gang will not attract the provisions of Section 20 of the UAPA.

As for the offences punishable under the NDPS, the Court observed that the chargesheet revealed the quantity seized from the possession of accused 2 was 600 grams of ganja, which was neither a commercial nor an intermediate quantity, but a small quantity. The Court also stated that the mere sharing of pictures of NDPS-prohibited substances definitely does not attract the provisions of the NDPS.

Therefore, in the light of the above, the Court found that the impugned orders could not be sustained and deserved to be set-aside; and ordered the following:

• The accused persons are entitled to be released on bail on furnishing a bond of Rs. 50,000 each, with one or more sureties, subject to-

• Marking their attendance before the respective police station on the first Monday of every month;

• Providing their contact and residence details, and informing in case of any change thereof;

• Not travelling outside the jurisdiction of the Trial Judge without prior permission, and depositing their passport with the investigating officer; and

• Not inducing, threatening, or promising any person acquainted with the facts of the case to dissuade them from disclosing the facts to the Court or the police.

[Parvez Zuber Vaid v. State of Maharashtra, 2024 SCC OnLine Bom 2282, decided on 11-07-2024]

Advocates who appeared in this case :

For accused 1: Mihir Desai, Senior Advocate with Samsher Garud, Vighnesh Iyer and Dhwani Parekh, Advocates, i/b Jayakar & Partners;

For accused 2: Rishi Bhuta with Vivek Pandey, Ashish Dubey, Ujjwal Gandhi, Ankita Bamboli, Advocates;

For the respondent: S.V. Gavand, APP.

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