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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

Subjects

  • bail
  • pre‑trial detention
  • UAPA
  • confessional statement
  • arms seizure
  • explosives
  • MCOC
  • trial delay

Judgment

                                                        1 / 13                  02-APEAL-33-24.odt

                                    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
                          3 / 13                 02-APEAL-33-24.odt

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
                              4 / 13                 02-APEAL-33-24.odt

     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
                                5 / 13                  02-APEAL-33-24.odt

     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
                            7 / 13                   02-APEAL-33-24.odt

  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.
                             13 / 13                            02-APEAL-33-24.odt




          (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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