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Bombay High Court

MOHIUDDIN SIDDIQUI @ MOHIN KHAN @ MOIN KHANversusSTATE OF MAHARASHTRA AND ANR.

Decided
Disposal
Disposed Off

Holding

The court held that no prima facie case exists against the appellant under the UAPA, the Section 43‑D(5) bar does not apply, and therefore bail must be granted.

Summary

The appellant, Mohiuddin Siddiqui, appealed against the Special Judge’s order denying bail in NIA Special Case No.666 of 2022, which involved charges under the IPC, Arms Act, Maharashtra Police Act and the Unlawful Activities (Prevention) Act (UAPA). He had been in custody for over seven and a half years while the trial, with 130 witnesses listed, was far from completion. The prosecution alleged that the appellant procured a pistol and handed it to co‑accused, invoking sections of the UAPA, but the court found no reliable material establishing that specific act. Consequently, the court held that the bar under Section 43‑D(5) of the UAPA did not apply and that the prosecution had not made out a prima facie case. Considering the lengthy pre‑trial detention, the parity principle, and the unlikely prospect of a speedy trial, the court granted bail with stringent conditions. The appeal was disposed of with the appellant released on bail.

Issues considered

  • Whether the prosecution has established a prima facie case against the appellant under Sections 15, 18 and 20 of the UAPA.
  • Whether the bar to bail under Section 43‑D(5) of the UAPA is applicable.
  • Whether the trial can be completed within a reasonable period justifying continued detention.
  • Whether the principle of parity warrants bail for the appellant who has been in custody longer than co‑accused.

Legislation cited

Subjects

  • bail
  • NIA Act
  • UAPA
  • terrorism
  • trial delay
  • parity principle
  • prima facie case
  • evidence
  • section 43-D(5)
  • pre‑trial detention

Judgment

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                                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                               CRIMINAL APPELLATE JURISDICTION

                                                CRIMINAL APPEAL NO.429 OF 2026

                               Mohiuddin Siddiqui @ Mohin Khan                 .... Appellant

                                             versus

                               The State of Maharashtra & Anr.                 .... Respondents
                                                            …....

                               •     Mr. Kartik Garg, appointed advocate through legal aid a/w
                                     Aashka Shell, Advocate for Appellant.
                               •     Ms. Supriya Kak, APP for the State/Respondent.
                               •     Mr. Amogh Singh, SPP a/w Mr. Rahul Arora and Mr. Rutuparn
                                     Umesh Deo, for Respondent No.2-NIA.
                               •     Mr. Manish Prabhune, Dy.S.P. NIA, Mumbai, present in Court.

                                                 CORAM      : SARANG V. KOTWAL &
                                                              RANJITSINHA RAJA BHONSALE, JJ.
                                                 DATE       : 08th SEPTEMBER, 2026

                               P.C. :


                               1.            The Appellant has filed the present Appeal challenging

                                    the order dated 26/12/2023 passed by the learned Special

                                    Judge, Greater Bombay, passed below Ex.232 in NIA Special

                                    Case No.666 of 2022. The said application was a Bail

MANUSHREE
NESARIKAR
                                    Application. The present Appeal is preferred under Section 21
Digitally signed
by MANUSHREE
NESARIKAR
Date: 2026.09.11
                                    (4) of the National Investigation Agency Act. Therefore, in
17:46:35 +0530



                                    effect, the Appellant is seeking bail during the pendency of NIA
                   Nesarikar
                               2 / 19                  901-APEAL-429-26.odt

     Special Case No.666 of 2022 pending before the learned Special

     Judge at Greater Bombay.



2.            Heard Mr. Kartik Garg, learned counsel for the

     Appellant, Mr. Amogh Singh, learned counsel for the Respondent

     No.2 and Ms. Supriya Kak, learned APP for the State.



3.            The    case   arises      out   of   RC-01/2019/NIA/MUM

     registered under Sections 120-B of the IPC, Sections 3, 7 r/w 25

     of the Arms Act, 1959, Section 37 r/w 135 of the Maharashtra

     Police Act, 1951, and under Sections 18 and 20 of the Unlawful

     Activities (Prevention) Act, 1967 (hereinafter referred to as

     UAPA). It was registered on 02/12/2018.



4.            The Appellant was arrested in connection with a case

     in Punjab on 08/12/2018. He was transferred and shown

     arrested in connection with the present case on 24/12/2018.

     Since then, he is in custody.



5.            We are informed that there were 130 witnesses cited in

     the charge-sheet. Obviously, all of them are not going to be
                                3 / 19                901-APEAL-429-26.odt

     examined during the trial, but as of today, 32 witnesses are

     examined. We are informed, on instructions, by the learned SPP,

     that the prosecution intends to examine 22 more witnesses.

     Thus it can be seen that the trial is not likely to get over within a

     reasonable period. We may also note that there were four

     accused in this case. Out of them, accused No.3, Sundarlal

     Parashar, is on bail. Accused No.1, Harpal Singh, and the

     accused No.4, Gurjeet Singh pleaded guilty to the charges. Both

     of them were convicted for those offences and were sentenced to

     suffer RI for 5 years, which they had already undergone, and

     they were released. Therefore, as of today, only the present

     Appellant is in custody.



6.            In this background, we have heard the learned counsel

     for the respective parties. The prosecution case is reflected in

     column 16 of the final report submitted by the investigating

     agency. The allegations against the Appellant are as follows:



              On prior information received by Mr. Kailas Pingle, In-

     charge Police Inspector of ATS, Pune Unit; accused No.1, Harpal
                         4 / 19               901-APEAL-429-26.odt

Singh, was apprehended. He was driving an 18 wheeler trailer

and had reached Chakan-Shikrapur Road, near Hotel Garva. The

information and the number of the trailer, i.e. KA-01-AH-5951,

matched. The ATS team intercepted the trailer and apprehended

the accused No.1, Harpal Singh. His personal search was

conducted in the presence of independent witnesses. During the

personal search, one country-made pistol and five live rounds,

apart from a mobile phone, were found in his possession.

Accused No.1, Harpal Singh, did not have a license for

possessing a firearm. Therefore, he was arrested and taken into

police custody. CR No.13 of 2018 was registered by ATS,

Maharashtra on 02/12/2018. Subsequently, ATS, Maharashtra

State, invoked Section 20 of the UAPA on 10/12/2018.



         It is the case of the prosecution that during the course

of investigation, it was revealed that the present Appellant was

also involved in this case. Hence, on 08/12/2018, the Appellant

was declared as a wanted accused. It is the case of the

prosecution that accused No.1 and accused No.2 (present

Appellant) were involved in unlawful activities for the formation
                          5 / 19                901-APEAL-429-26.odt

of a separate state, and thereby their acts were threats to the

security, integrity, and sovereignty of the country. The NIA re-

registered the case on 10/01/2019 vide RC-01/2019/NIA-MUM

and investigated the case. During the investigation, it was

revealed that a similar Case No.156 of 2018 was registered

against the Appellant at Sirhind Police Station, District

Fatehgarh Sahib, Punjab. In that case, the Punjab Police had

recovered a pistol, five live rounds and three mobile phones with

SIM cards from the Appellant. Accused No.1, Harpal Singh, was

shown as an accused in the said Case No.156 of 2018 by the

Punjab Police. It is the case of the prosecution that during the

investigation, it was revealed that the Appellant was in Tihar Jail

between 2013 to 2016. He developed contact with one Jagtar

Singh Hawara, who was involved in the murder of a former

Chief Minister of Punjab. After his release from jail, the

Appellant kept in touch with the said Jagtar Singh and showed

willingness to join him. There are allegations that the Appellant

joined the social networking sites for their separatist movement.

As per the prosecution case, on the directions of accused No.4,

Gurjeet Singh, the Appellant collected 2 SIM cards at Delhi
                               6 / 19                   901-APEAL-429-26.odt

     International Airport from one Pandwar on 20/10/2018.

     Accused No.4, Gurjeet Singh, directed the Appellant to arrange

     pistol and ammunition. The Appellant, in turn, asked him to

     provide some money and gave his bank account number. On

     09/10/2018, Rs.30,000/- were deposited in that account by

     accused No.1, Harpal Singh's friend, Jaspreet Singh Saini, on the

     directions of the accused No.4. It is the prosecution case that on

     14/10/2018, the Appellant went to Fatehgarh Sahib, Punjab, to

     deliver the weapon to accused No.1, Harpal Singh. This was the

     first meeting between the Appellant and the accused No.1. But

     at that time, the Appellant did not deliver the weapon.



7.             Thereafter, the Appellant approached accused No.3,

     Parashar, for procuring the weapon. Accused No.3, Parashar,

     gave a country-made pistol to the Appellant at Hotel Check Inn,

     New Delhi, in the last week of October 2019. It is the

     prosecution case that the said country-made pistol was further

     delivered by the Appellant to accused No.1 at Fatehgarh Sahib,

     Punjab,   on   01/11/2018,         through   one    Sarabjit   Singh.

     Incidentally, Sarabjit Singh is a witness. The same country-
                              7 / 19               901-APEAL-429-26.odt

     made pistol was later recovered by ATS, Pune, from the

     possession of accused No.1 on 02/12/2018. The entire case

     revolves around this recovery of the weapon from accused No.1.



              It is the case of the prosecution that during the

     investigation, accused No.3, Parashar, disclosed that he had

     found the said pistol during morning walk near a garbage

     dumping area. During investigation, the CDR analysis of accused

     Nos. 1, 3, 4, and the Appellant were analysed. It was concluded

     that there was a conspiracy amongst all of them. They were

     constantly in touch with each other. Accused No.4 was residing

     in Cyprus. He was subsequently arrested. On these allegations,

     the charge-sheet was filed.



8.            As mentioned earlier, the charges were framed and the

     trial proceeded. As of today, 32 witnesses are examined.



9.            Learned counsel for the Appellant made the following

     submissions :-

              The main accused in this case were the accused Nos.1

     and 4. Both of them have pleaded guilty and, on conviction, they
                          8 / 19                901-APEAL-429-26.odt

were sentenced to suffer the maximum sentence of five years.

Compared to them, the Appellant's role is much lesser and, in

spite of that, he is in custody for more than seven and half years.

He submitted that, on the principles of parity, at the highest, he

is not likely to get a sentence more than the period which he has

already suffered in custody. He submitted that, as stated by the

learned SPP, the prosecution intends to examine at least 22 more

witnesses. Most of the witnesses are from Punjab, and therefore,

it is not easy to procure their presence. He further submitted

that even the Appellant intends to examine himself and he

intends to lead defence evidence. This will take further time,

and hence, the trial is definitely not going to get over within a

reasonable time. Therefore, in this background, it would be only

just and proper that the Appellant is released on bail during the

pendency of the trial.



         He further submitted that there was no reliable and

admissible material against the Appellant to justify and support

any of the allegations made against him. The allegations about

joining social media groups were common allegations against all
                           9 / 19                901-APEAL-429-26.odt

the accused, and in spite of that, the 2 main accused were

awarded the maximum sentence of 5 years of imprisonment.

This is a relevant factor in this case. He also submitted that there

is no evidence to show that the Appellant handed over the

country-made pistol to accused No.1, and if that allegation is not

substantiated by evidence, the entire prosecution case fails. He

invited our attention to the provisions of Chapter IV of the

UAPA. He submitted that neither the provisions of Chapter IV

nor the provisions of Chapter VI are attracted in this present

case, and therefore, the bar u/s 43-D (5) of the UAPA for the

grant of bail will not apply in the present case. He submitted

that as per the prosecution case, it was the accused No.3 who

had actually procured the pistol and yet he was not charged

with the offences under the UAPA. There is material to show that

the Appellant is not involved in the commission of the offence,

but in fact, he was working as an informer and was helping the

investigating agency. He submitted that the Appellant is already

in custody for more than seven and half years, and therefore, in

the facts of this case, he deserves to be released on bail.
                           10 / 19               901-APEAL-429-26.odt

10.        Learned SPP invited our attention to the compilation

  tendered in the Court. He submitted that there is evidence to

  show that Rs.30,000/- were actually transferred to the account

  of the Appellant. There are various photographs with weapons

  to show that the Appellant was possessing weapons. Those

  photographs supported the allegations made against the

  accused. He submitted that the prosecution would make efforts

  to complete the trial within three months. He further submitted

  that the prosecution has made an application under Section 19

  of the NIA Act to conduct the trial on a day-to-day basis. He

  submitted that the offence is serious. The ingredients of Sections

  15, 18, and 20 of the UAPA are made out. There are statements

  of the accused themselves showing that the Appellant had

  handed over that pistol to accused No.1.



11.        We    have    considered    these    submissions.    The

  prosecution and the investigating agency is required to show

  that the Appellant had handed over that pistol to accused No.1.

  Unless there is some material to show this specific act played by

  the Appellant, the prosecution case cannot proceed further
                              11 / 19              901-APEAL-429-26.odt

  against him. In that context, we specifically asked the learned

  SPP to show the material which would sufficiently show that the

  Appellant had, in fact, handed over that weapon to the accused

  No.1. In response, the learned SPP relied on certain statements.

  He relied on page 460 of his compilation. The said document

  refers to the explanation of the Appellant himself that the

  accused No.4 wanted a weapon and the accused No.4 had sent

  Rs.30,000/- in the Appellant's account. As can be seen, this is in

  the nature of a confession made by the Appellant before the

  police, and therefore, it is hit by Section 25 of the Evidence Act.



12.        Similar is the case with the learned SPP's reliance on

  page 503 of his compilation. This was also, again, the

  Appellant's explanation about the SIM cards which he had got

  from the accused No.4.



13.        The learned SPP then relied on the screenshot

  mentioned on page 486. That screenshot is in respect of a chat

  between accused No.1 and the Appellant. However, pursuant to

  that chat, no specific act was committed either by accused No.1

  or the present Appellant.
                           12 / 19              901-APEAL-429-26.odt




14.        Page 513 shows photographs of the Appellant with

  weapons. At this stage, we are not making any observations

  about these photographs. It is specifically left open to be

  considered at the stage of trial. However, for consideration of

  the bail application, we may note that these particular

  photographs are not directly related to the present case, where

  the allegations are that the Appellant had given a firearm to the

  accused No.1. In any case, the explanation on page 513

  mentioned that the Appellant had taken a licensed weapon of a

  private guard to pose for those photographs. There are other

  screenshots referred to by the learned SPP on page 740. Again,

  it does not take the prosecution case any further in respect of

  the allegations that the Appellant had handed over the pistol to

  accused No.1. The learned SPP then relied on statements at

  pages 1197 and 1255. The allegations made in these statements

  are related to accused Nos. 1, 4, and the present Appellant.

  Therefore, the material in those statements is equally applicable

  to accused Nos. 1 and 4, who were sentenced only for 5 years.
                           13 / 19                 901-APEAL-429-26.odt

15.        Statement of Sarabjit Singh at page No.1222 mentions

  that one person unknown to him had handed over the pistol

  with five live rounds to him (i.e. to Sarabjit Singh). After that

  Sarabjit Singh handed it over to accused No.1. The Appellant

  had not handed over that firearm to the accused No.1.



16.        In short, this is the main material relied on by the

  learned SPP against the Appellant.



17.        In this context, it is necessary to see whether any

  specific act is shown at the prima facie stage against the

  Appellant based on the material collected by the investigating

  agency. As submitted by the learned SPP and the learned counsel

  for the Appellant, Sections 18, 20, and 15 are important in this

  context. Section 18 and Section 20 of UAPA both refer to the

  commission of a terrorist act. Sections 18 and 20 are as follows:



         “18.    Punishment for conspiracy, etc.— Whoever
                 conspires or attempts to commit, or advocates,
                 abets, advises or [incites, directly or knowingly
                 facilitates] the commission of, a terrorist act or
                            14 / 19                  901-APEAL-429-26.odt

                any act preparatory to the commission of a
                terrorist   act,      shall   be   punishable     with
                imprisonment for a term which shall not be less
                than five years but which may extend to
                imprisonment for life, and shall also be liable to
                fine.


        20.     Punishment for being member of terrorist gang or
                organisation.—
                Any person who is a member of a terrorist gang
                or a terrorist organisation, which is involved in
                terrorist   act,      shall   be   punishable     with
                imprisonment for a term which may extend to
                imprisonment for life, and shall also be liable to
                fine.”



18.       Since the concept of a terrorist act is important, section

  15 of the UAPA is reproduced herein below.



         “15.   Terrorist act.—
         (1)    Whoever does any act with intent to threaten or
                likely to threaten the unity, integrity, security,
                [economic security,] or sovereignty of India or
                with intent to strike terror or likely to strike terror
                in the people or any section of the people in India
                or in any foreign country,—
                 15 / 19                    901-APEAL-429-26.odt

(a)   by using bombs, dynamite or other explosive
      substances or inflammable substances or firearms
      or other lethal weapons or poisonous or noxious
      gases or other chemicals or by any other
      substances     (whether     biological    radioactive,
      nuclear or otherwise) of a hazardous nature or by
      any other means of whatever nature to cause or
      likely to cause—
      (i) death of, or injuries to, any person or persons; or
      (ii) loss of, or damage to, or destruction of,
      property; or
      (iii) disruption of any supplies or services
      essential to the life of the community in India or
      in any foreign country; or
      (iiia) damage to, the monetary stability of India
      by way of production or smuggling or circulation
      of high quality counterfeit Indian paper currency,
      coin or of any other material; or]
      (iv) damage or destruction of any property in
      India or in a foreign country used or intended to
      be used for the defence of India or in connection
      with any other purposes of the Government of
      India, any State Government or any of their
      agencies; or
(b)   overawes by means of criminal force or the show
      of criminal force or attempts to do so or causes
      death of any public functionary or attempts to
      cause death of any public functionary; or
                             16 / 19                901-APEAL-429-26.odt

         (c)     detains, kidnaps or abducts any person and
                 threatens to kill or injure such person or does any
                 other act in order to compel the Government of
                 India, any State Government or the Government
                 of a foreign country or [an international or inter-
                 governmental organisation or any other person to
                 do or abstain from doing any act; or] commits a
                 terrorist act.


         (2)     The terrorist act includes an act which constitutes
                 an offence within the scope of, and as defined in
                 any of the treaties specified in the Second
                 Schedule.”



19.        In the present case, we do not see any material which

  prima facie shows that the Appellant had committed any specific

  act to bring it within the meaning of this provision. The only act

  alleged against him is that he procured the weapon for

  Rs.30,000/- and gave it to accused No.1. As discussed earlier,

  there is no reliable material to substantiate that fact. In such

  circumstances, the prosecution case against the Appellant is

  weak. Hence there are no reasonable grounds for believing

  prima facie that the Appellant has committed any offence under

  Chapter IV and VI of UAPA. In this view of the matter, the bar
                           17 / 19                901-APEAL-429-26.odt

  under Section 43-D (5) of the UAPA will not operate against the

  Appellant. We make it clear that these observations are made

  only for the purpose of deciding this appeal, which is for

  consideration of grant of bail. The trial Court shall not be

  influenced by these observations and shall decide the matter on

  its own merits in accordance with law, on the basis of the

  evidence produced before it.



20.        We have also mainly taken into consideration the fact

  that the Appellant is in custody for more than seven and half

  years. The trial is not likely to get over within a reasonable

  period, and the main accused were sentenced to suffer

  imprisonment only for 5 years. The Appellant has spent many

  more years than them in custody for similar allegations. Accused

  No.1 was actually found in possession of the firearm, whereas,

  as discussed earlier, there is hardly any material to show that the

  Appellant had handed over that weapon to the accused No.1. In

  this view of the matter, the Appellant deserves to be released on

  bail. But considering the serious nature of the allegations, some

  stringent conditions are required to be imposed.
                          18 / 19           901-APEAL-429-26.odt




21.   Hence, the following order :



                           ORDER


      (i)    During the pendency and disposal of NIA Special
             Case No.666 of 2022 pending before the Special
             Judge at Greater Bombay, 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.


      (ii)   The Appellant shall not leave the jurisdiction of
             the learned NIA Special Court, Greater Mumbai,
             without prior permission of the said court.


      (iii) The Appellant shall surrender his passport to the
             Investigating Officer before being released on
             bail.


      (iv)   Before being released on bail, the Appellant shall
             provide his contact number and the address
             where he would be staying during pendency of
             the trial.
                         19 / 19                   901-APEAL-429-26.odt

         (v)    The    Appellant    shall    not     establish    any
                communication with the co-accused or any of
                the witnesses. He shall not tamper with the
                evidence or the witnesses.


         (vi)   The Appellant shall remain present on all the
                dates before the trial court, unless prevented by
                circumstances acceptable to the trial court.


         (vii) He shall report to the Investigating Officer once
                a week, i.e. every Saturday between 04:00 pm to
                06:00 pm, till conclusion of the trial.


         (viii) The Appeal is disposed of.




(RANJITSINHA RAJA BHONSALE, J.)          (SARANG V. KOTWAL, J.)


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