Bombay High Court
MUSTAFA MEHMOOD SAYED @ MUNNA MUSTAFA @ SAYED BADEMIYA MEHMOODMIYAversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
Holding
Bail is granted to the appellant; the order of the Special Judge is set aside and the appeal is disposed of.
Summary
The appellant, Mustafa Mehmood Sayed, has been in custody since October 2007 and seeks bail in a case involving alleged arms and explosives offences under multiple statutes, including the UAPA. The trial has progressed slowly, with only four witnesses examined while the prosecution expects to examine about 100, making a reasonable conclusion unlikely. The primary evidence against the appellant consists of his own confessional statement and those of co‑accused, which merely allege that he was sent to Bangladesh to collect money and did not participate in the arms conspiracy. The court found no impediment under UAPA s.43(D)(5) to grant bail, noting the absence of a prima facie case for the UAPA offences and the excessive pre‑trial detention of over 19 years. Consequently, the appellate court set aside the Special Judge’s order and granted bail with standard conditions, disposing of the appeal.
Issues considered
- Whether bail can be granted to the appellant under s.43(D)(5) of the Unlawful Activities (Prevention) Act given the nature of the alleged offences.
- Whether there are reasonable grounds to believe that a prima facie case exists against the appellant under the UAPA and related statutes.
- Whether the prolonged pre‑trial detention of more than 19 years justifies the grant of bail.
Legislation cited
- Arms Act, 1959 — s. 16, 18
- Code of Criminal Procedure, 1973 — s. 308
- Explosives Act, 1884 — s. 25, 3
- Explosive Substances Act, 1908 — s. 4, 5
- Indian Penal Code — s. 120(B), 201
- MCOC Act — s. 3(1)(ii), 3(2), 3(4)
- Unlawful Activities (Prevention) Act, 1967 — s. 43(D)(5), 5, 6, 9(A)
Subjects
- bail
- pre‑trial detention
- UAPA
- confessional statement
- arms seizure
- explosives
- MCOC
- trial delay
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.33 OF 2024
Mustafa Mehmood Sayed
@ Munna Mustafa @ Sayed
Bademiya Mehmoodmiya .... Appellant
versus
The State of Maharashtra .... Respondent
…....
• Mr. Mubin Solkar a/w Tahera Qureshi, Tahir Hussain, Anas
Shaikh, Mehrosh Solkar, Zahid Burud, Rabiya Bhamla, Yakub
Shaikh, Hemal Shah i/b. Karim Pathan, Advocate for Appellant.
• Ms. Gauri S. Rao, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL &
RANJITSINHA RAJA BHONSALE, JJ.
DATE : 29th SEPTEMBER, 2026
JUDGMENT : (PER : SARANG V. KOTWAL, J.)
1. In this Appeal the Appellant has challenged the Order
dated 19/05/2023 passed by the learned Special Judge, Greater
Mumbai, in Special Case No.5 of 2016. In effect, the Appellant is
seeking his release on bail during the pendency of Special Case
No.5 of 2016.
MANUSHREE
NESARIKAR
Digitally signed
2. Heard Mr. Mubin Solkar, learned counsel for the
by MANUSHREE
NESARIKAR
Date: 2026.10.01
17:21:21 +0530
Appellant and Ms. Gauri S. Rao, learned APP for the State.
Nesarikar
2 / 13 02-APEAL-33-24.odt
3. The Appellant was arrested on 09/10/2007 and since
then he is continuously in custody.
4. The trial has commenced and as of today, only four
witnesses are examined.
5. Learned APP on instructions states that the prosecution
proposes to examine around 100 witnesses in this case.
Therefore, it is quite obvious that the trial is not likely to get
over within a reasonable time. The Appellant is already in
custody for more than 19 years. In this background, we have
considered the Appellant’s prayer for bail.
6. The prosecution case in brief reads as follows :
On 09/05/2006 at about 04.00 pm, ACP Shri Shengal
intercepted a Tata Sumo vehicle bearing registration No.MH-14-
X-4380 coming from Manmad. Mr. Shengal had received prior
information on the previous day that huge quantity of arms and
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explosives were likely to be transported in the Marathwada area.
ACP Shengal signaled to stop the vehicle, but the driver ignored
the signal and proceeded towards Aurangabad road. After a
prolonged chase of about 70 to 80 kilometers, the police team
was successful in intercepting the vehicle near Verul within the
limits of Khuldabad Taluka, District Aurangabad. Three
occupants tried to escape. One of them was caught. His name
was Mohammad Ameer. The search showed that there were
huge arms and ammunition in the car. There were 10 AK-47
rifles, 40 magazines of AK-47 rifles, 2,000 live cartridges of AK-
47 rifles, 10 magazine pouches and approximately 30 kilograms
of RDX. They were found in corrugated boxes. A detailed
Panchanama was prepared. One mobile phone was also
recovered from the vehicle. The investigation revealed that
accused No.4 Abdul Azim was the driver of the Sumo vehicle.
The accused No.1 Mohd. Ameer, revealed that one Tata Indica
car was also carrying similar boxes, and it was driven by accused
No.3 Mujaffar Tanveer. On 12/05/2006, the Indica car was
traced near Malegaon, which had five boxes containing arms,
ammunition, and explosives. On 13/05/2006, more arms were
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found in unclaimed condition at village Ankai, Yewala-Manmad
Road. Thus, the police team recovered huge arms and
ammunition. At the instance of accused No.7 Afazal Khan, more
arms and ammunition were recovered. The investigation was
carried out in connection with LAC No.3/2006, by ATS police
station, at Mumbai. The offence was registered u/s 4 and 5 of
Explosive Substances Act 1908, r/w sections 5, 6, 9-A of the
Indian Explosives Act, 1884, r/w sections 3 and 25 of the Arms
Act, 1959 r/w sections 16 and 18 of the Unlawful Activities
(Prevention) Act, 1967, as amended in 2004. The investigation
was carried out. The Appellant was arrested on 09/10/2007.
Before that, his house was searched on 10/06/2006. A sword
was seized from his house for which a separate CR No.II-
25/2006 under the Arms Act was recorded at Bhingar Camp
police station, Ahmednagar.
7. After the conclusion of the investigation, the ATS filed
charge-sheet against the Appellant and others. In MCOC Special
Case No.8 of 2009, the Appellant was shown as accused No.20.
The charge-sheet were filed u/s 120(B), 201, of the IPC r/w
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3(1)(ii), 3(2), 3(4) of MCOC Act r/w 5, 6, 9 (B) of Explosives
Act r/w 10, 13, 16, 18, 23, 38, 39, 40 of Unlawful Activities
(Prevention) Act, 1967. The affidavit-in-reply filed by the
Investigating Officer in this Appeal mentions that the Appellant
filed a written application on 07/11/2007, seeking pardon in
that case. The learned Trial Judge granted pardon to the
Appellant on 15/11/2007. On 08/02/2013, the Trial Court
framed charges against 21 accused except the Appellant, who
was shown as an Approver. On 03/10/2013, the Appellant filed
an application for withdrawing his status as an Approver and for
framing charges against him. That application was rejected. The
trial commenced. The Appellant was examined on 02/03/2015,
as Prosecution Witness No.88, but he did not support the
prosecution case. Therefore, the prosecution declared him as a
hostile witness. Certificate u/s 308 of Cr.P.C. was issued. His trial
was separated. Sanction was obtained from High Court to
prosecute the Appellant.
8. The trial against the other 20 accused was completed
vide the Judgment dated 02/08/2016. 12 accused were
6 / 13 02-APEAL-33-24.odt
convicted, and 8 accused were acquitted. Significantly, all the
accused were acquitted from the charges of Commission of
Offences under MCOC Act. In this background, the Appellant's
case was separated, and he is facing the trial as mentioned
earlier.
9. Learned counsel for the Appellant submitted that the
Appellant is in custody for more than 19 years. The trial is not
likely to get over within a reasonable period. On this ground
alone he deserves to be released on bail. He submitted that there
is hardly any role attributed to the Appellant. There is no
reliable material against him. At the highest, the prosecution
case is that the Appellant was sent to Bangladesh by his co-
accused to collect money. Beyond those allegations, there is no
material against him. To establish that fact, the prosecution
relied on his own confession recorded u/s 18 of the MCOC Act
and also on the confessions recorded u/s 18 of the MCOC Act of
his co-accused. Nothing was recovered from him. There is
nothing to show that he was aware that, huge arms and
ammunition were being transported in those vehicles or those
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were abandoned at any place. He submitted that there is no bar
u/s 43(D)(5) of the UAPA in granting bail to the Appellant.
10. Learned APP opposed these submissions and relied on
the affidavit-in-reply. The contents of the affidavit-in-reply refer
to the investigation as above. She submitted that the Appellant's
own confession shows the role played by him. There is CDR
collected by the Investigating Officers, which shows that the
Appellant was constantly in touch with his co-accused and
therefore, he was aware of the conspiracy and thus he had taken
active part in the conspiracy.
11. Learned counsel for the Appellant responded further by
placing reliance on the two orders passed by two different
Division Benches of this Court in Bail Applications pending in
their Appeals. Those two accused were convicted in the first trial
referred to hereinabove, from which the Appellant's trial was
separated. Out of them, Afroz Khan Shahid Khan Pathan was the
original accused No.14. He was convicted in Special MCOC Case
No.16 of 2006, which was the original case from which the
8 / 13 02-APEAL-33-24.odt
Appellant's case was separated. The said accused was sentenced
to suffer life imprisonment. He preferred Criminal Appeal
No.439 of 2017 and preferred Criminal Interim Application
No.906 of 2022 for bail. His bail application was allowed. The
said accused was also in custody for a period of 17 years. Role
attributed to him was similar to the Appellant herein. Similarly,
another accused Sayyed Aakif Sayyed Zafaruddin, was also
convicted in the same case for life imprisonment and was
sentenced to suffer life imprisonment. He preferred Criminal
Appeal No.1243 of 2018 and preferred Interim Application
No.1564 of 2025 for bail pending Appeal. He was also granted
bail. The role attributed to him was that he had gone to Nepal to
meet the other accused. Learned counsel therefore submitted
that considering this background the Appellant also be released
on bail.
12. We have considered these submissions. There is no
dispute that the main material against the Appellant is the
confessional statement of the Appellant himself and those of the
co-accused.
9 / 13 02-APEAL-33-24.odt
13. The confessional statement of the Appellant dated
05/11/2007 in the first part mentions his background. He was
working as a driver and used to go to Mumbai, Aurangabad, etc.
from Ahmednagar. Till 2006, he used to ply Rikshaw also. In
January 2006, he met Maulana Ameer, who in turn introduced
him to other accused, Akif, Bilal, Zabiuddin, Faiyyaz, etc. All of
them used to tell him about the harassment caused to people
belonging to his religion. They used to say that one Junaid was
to send big consignment of arms and ammunition. It was to be
used to take revenge on people from other community and their
leaders. In April 2006, Ameer told him that they had to get
funding from outside India. For that purpose, somebody had to
go to Bangladesh. And in any case, they wanted to send
somebody to get training of terrorist activities. He suggested that
the Appellant should go to Bangladesh with one Jabi and one
Haroon. The Appellant agreed with the proposal. In March
2006, he and Haroon (whose name was revealed as Afroz), went
to Manmad from Aurangabad, and then from Manmad to
Kolkata. Ameer had given him Rs.5,000/-. Haroon was given
10 / 13 02-APEAL-33-24.odt
one telephone number for contacting a person in Kolkata. The
Appellant and Haroon then went to Kolkata and met that
person. The Appellant was made to go to Bangladesh. They
entered Bangladesh illegally. He met Junaid. He told the
Appellant that Ameer and others were arrested in Aurangabad
with arms and ammunition, and therefore, the money which he
was to receive and which was to be given to the Appellant and
others was not received and that the Appellant and others would
have to wait. The Appellant and Haroon somehow left
Bangladesh and came back. He came to know that police were
looking for him. Therefore, the Appellant went to Hyderabad
with his wife and children. This, in short, was his confessional
statement.
14. The confessional statements of the other accused,
Sayyed Aakif Zafiruddin and Mohd. Ameer Shakeel Shaikh were
on similar lines as far as the Appellant is concerned. This is the
main material against the Appellant.
15. From this material, at the highest, it can be said that
Mohammed Ameer had sent him to Bangladesh to collect money,
11 / 13 02-APEAL-33-24.odt
but he could not collect the money because in the meantime, the
consignment was caught by the police. Apart from that, there is
no active role attributed to him through any other material in
the entire charge sheet.
16. Thus, from the above facts, we are of the opinion that
there is no impediment u/s 43(D)(5) of UAPA in granting bail to
the Appellant. There are no reasonable grounds for believing
that the accusation against the Appellant is, prima facie, true as
far as the offences under UAPA are concerned.
17. These observations, of course, is made only for the
purpose of deciding this Appeal, and the Trial court shall not be
influenced by these observations.
18. Based on this observation and also taking into
consideration the fact that, the Appellant is in custody without
trial for more than 19 years, and the trial is not likely to get over
within a reasonable time, the Appellant deserves to be released
on bail.
12 / 13 02-APEAL-33-24.odt
19. Hence, the following order :
ORDER
(1) The order dated 19/05/2023 passed by the Special
Judge, Greater Mumbai, in Special Case No.5 of
2016, is set aside.
(2) During pendency and final disposal of Special Case
No.5 of 2016 pending before the Special Judge,
Greater Mumbai, the Appellant is directed to be
released on bail on his executing PR bond in the sum
of Rs.50,000/- (Rupees Fifty Thousand only) with one
or two sureties in the like amount on the following
conditions -
(i) The Appellant shall attend all the dates before
the Trial Court.
(ii) He Shall not leave the State of Maharashtra
without prior permission of the Trial Court.
(iii) The Appellant shall report to the office of the
investigating agency on 1st Saturday of every
month between 03.00 to 05.00 pm.
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(iv) He shall deposit his passport with the
Investigating Officer, if any, before being
released.
(v) The Appellant shall provide his contact numbers
and residential address where he would be
staying after his release, to the Investigating
Officer, before he is actually released from
prison.
(vi) He shall not tamper with the evidence.
(3) With these directions, the Appeal is disposed of.
(RANJITSINHA RAJA BHONSALE, J.) (SARANG V. KOTWAL, J.)
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