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
- Arms Act, 1959 — s. 25, 3, 7
- Indian Evidence Act, 1872 — s. 25
- Indian Penal Code, 1860 — s. 120-B
- Maharashtra Police Act, 1951 — s. 135, 37
- National Investigation Agency Act — s. 21(4)
- Unlawful Activities (Prevention) Act — s. 15, 18, 20, 43-D(5)
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
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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
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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
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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
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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
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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
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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.
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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
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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.
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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.
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(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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