Bombay High Court
SAYYED AAKIF SAYYAD ZAFARUDDINversusTHE STATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
Holding
The court held that, in view of the lack of reliable evidence and the application of the parity principle, the applicant is entitled to bail pending the appeal.
Summary
The applicant, Sayyed Aakif Sayyad Zafaruddin, filed an interim bail application under Section 430 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking release pending the hearing of his appeal against a life‑sentence conviction for offences under the UAPA, MCOC Act and IPC. The trial court had convicted him primarily on email correspondence, his own confession and the confession of co‑accused A‑1, while the prosecution alleged his involvement in a large arms and explosives haul and links to terrorist organisations. The defence argued that the emails were not supported by a Section 65B certificate, the confessions were retracted, and there was no direct evidence of his participation in the procurement or transport of the weapons. The court examined the admissibility of the electronic evidence, the reliability of the confessions, and the principle of parity with other co‑accused who had been released on bail. Finding the evidence insufficient to sustain the conviction and noting that the applicant had served half of the maximum term, the court applied parity and granted bail with conditions. The interim application was therefore allowed, and the applicant was enlarged on bail pending the final disposal of his appeal.
Issues considered
- Whether the applicant is entitled to bail under Section 430 of the BNSS pending the appeal.
- Whether the email correspondence and CDRs, lacking a Section 65B certificate, are admissible as evidence.
- Whether the retracted confessions of the applicant and co‑accused are sufficient to sustain the conviction.
- Whether the principle of parity with other co‑accused released on bail warrants granting bail to the applicant.
Legislation cited
- Arms Act — s. 3, 35
- Bharatiya Nagarik Suraksha Sanhita — s. 430
- Explosive Act, 1884 — s. 5, 6, 9(B)
- Explosive Substances Act, 1908 — s. 4, 5
- Indian Evidence Act, 1872 — s. 65B
- Indian Penal Code, 1860 — s. 120B
- Unlawful Activities (Prevention) Act — s. 10(a), 13, 18, 20, 38, 39
Subjects
- bail
- Section 430 BNSS
- UAPA
- MCOC Act
- electronic evidence
- Section 65B
- parity principle
- terrorism
- arms seizure
- confession retraction
Judgment
P.H. JAYANI IA1564.2025.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1564 OF 2025
IN
CRIMINAL APPEAL NO. 1243 OF 2018
Sayyed Aakif Sayyad Zafaruddin
Aged : 42 years, Occ. Nil,
Residing at : Lane No.5, Ganesh Colony,
VLP Road, Aurangabad,
Maharashtra
(Presently lodged at Ahemadabad
Central Prison) … Applicant
Versus
The State of Maharashtra
Through ATS, Kala Chowki Police Station, …Respondent
Mr. Mubin Solkar a/w. Adv. Tahir Hussain, Adv. Anas Shaikh,
Mrs. Mehrosh Solkar, Mr. Yakub Shaikh, Mr. Zahid Burud,
Adv. Hemal Shah i/b. Tahera Qureshi for the Applicant/Appellant.
Ms. Megha S. Bajoria, APP for the Respondent – State.
Mr. Asehana Kshirsagar, API and Mr. Panchal, HC, ATS, Kalachowki
Police Station, present.
CORAM: SUMAN SHYAM &
SHYAM C. CHANDAK, JJ.
RESERVED ON : 27th APRIL, 2026
PRONOUNCED ON : 30th APRIL, 2026
ORDER : (PER : SHYAM C. CHANDAK, J.)
1. By this Application filed under Section 430 of the Bharatiya
Nagarik Suraksha Sanhita (BNSS), 2023, the Applicant seeks
suspension of his jail sentence and enlargement on bail, pending
the hearing and disposal of his aforesaid Appeal.
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2. Heard Mr. Mubin Solkar, the learned counsel for the
Applicant and Ms. Megha Bajoria, the learned APP for the
Respondent – State.
3. By the Judgment and Order dated 28 th July, 2016, passed by
the learned Special Judge, under MCOC Act in MCOC Special Case
No.16/2006 with MCOC Special Case No.18/2006, MCOC Special
Case No.20/2007, MCOC Special Case No.8/2009 and MCOC
Special Case No.20/2012, the Applicant was convicted for the
offence under Sections 10(a), 13, 18, 20, 38, 39 of the Unlawful
Activities (Prevention) Act and under Sections 18 and 20 of the
UAPA. He was sentenced to suffer rigorous imprisonment for life
and to pay fine of Rs.20,000/- in default to undergo simple
imprisonment for one year. Additionally, he was also convicted
under Section 120B of the IPC. However, in view of the sentence
imposed for above offences, no separate sentence was awarded to
him on this count.
4. The prosecution case is that, at the relevant time, the Anti
Terrorism Squad was conducting enquiries in relation to the
incidents of Nanded bomb blast case, explosives seized in
Buldhana and the bomb blast which took place in Marathwada in
the year 2002 and 2003. During the course of enquiry, the ATS
gathered intelligence that some explosive and weapons were likely
to be transported in a vehicle in the region. Acting on such
information, on 09.05.2006 the teams of ATS were deputed along
Manmad-Yevala-Aurangabad Road. At about 4 PM, at Yevala
junction, on Yevala-Aurangabad Road, the team led by ACP
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Shengal noticed one white colour Tata Sumo Jeep bearing
registration No. MH-14-X-4380 coming from Manmad and going
towards Aurangabad. ACP Shengal signaled that jeep driver to
stop but, he sped away. The police team chased the jeep and
intercepted it at Grishneshwar Temple, taluka Khultabad,
Aurangabad. Three persons were found occupying the jeep viz. A-1
Mohd. Amer Shakil Ahmed Shaikh, A-2 Sayyed Juber Sayyad
Anwar Kadri and A-4 Abdul Azim Abdul Jameel Shaikh. The police
apprehended the A-1, but, the other two accused fled away. The
police took A-1 alongwith that jeep to Khultabad Police Station.
Search of the said jeep was carried out. 10 AK 47 rifles, 40
magazines, 2000 live cartridges, 10 magazine pouches and 30 Kgs
of explosive substance were recovered from some boxes which
were kept in the said jeep. Interrogation of A-1 revealed that his
accomplices A-3 and A-22 were accompanying him in a TATA
Indica car which was suspected to be carrying similar consignment.
On complaint of ACP Shengal, FIR came to be registered as LAC
No.3/2006 for the offence punishable under Sections 120B of IPC,
4 & 5 of the Explosive Substances Act 1908, under Sections 5, 6
and 9 (B) of the Indian Explosive Act 1884, under Sections 3 and
35 of the Arms Act, Sections 10, 13, 16, 18 and 23 of the UAPA
and Sections 3 (1) (ii), 3 (2), 3 (4) of the MCOC Act 1999.
4.1 During investigation one Indica car was found abandoned at
Sayane Road, Malegaon. The car was seized. The car was believed
to be involved in this crime. On 13/05/2006, A-5, A-6, A-7 and A-8
were arrested. Their interrogation revealed the involvement of A-9.
Thereafter, A-4, A-10 and A-22 came to be arrested. Further
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investigation revealed the involvement of the Applicant in this
crime. Therefore, the Applicant came to arrested on 19/05/2006.
During custodial interrogation, the Applicant made a voluntary
disclosure in the presence of the police and panchas. Further, the
Applicant led the police and panchas to M/s. Vighnesh Infotech
Cyber Cafe and there, the Applicant opened certain e-mail inboxes
by entering the password and read the e-mail correspondence
contained therein. The police took the print-outs of the email
messages. The email dated 25.02.2006 had contained certain
message in code-language about the bomb blast at Ahmedabad.
The Applicant revealed that said code language was used to
communicate with A-22 Sayyed Jabiuddin regarding the present
crime. The Applicant revealed the meaning of the said email
message and disclosed that said email was also sent to wanted
accused Junaid, a Pakistan National. Additional e-mail
correspondence was recovered by the police upon accessing three
other email IDs through A-12 by visiting M/s. Vignesh Infotech.
Investigation revealed that the Applicant was in contact with A-13
and A-14. It is alleged that, the Applicant and A-22 had been to
Kathmandu together to meet the wanted accused Junaid and
thereafter, the Applicant had allegedly provided his email to
Junaid. On 11/05/2006, the Applicant had sent an email to the
wanted accused Junaid to seek guidance after interception of the
said Tata Sumo vehicle. On 15 th June 2006 the Applicant made the
confession about his involvement in the crime. Investigation
revealed that, all the accused had conspired to commit ‘Jihad’ by
striking terror for which purpose they had procured and collected
the said arms, ammunition and explosives, and transported the
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same. Accordingly, charge-sheet was filed against 22 accused
persons including the present Applicant.
5. Mr. Solkar, the learned counsel has submitted that it was not
the case of the prosecution that the Applicant was a member of
SIMI. The Applicant had no knowledge about transportation of the
alleged arms, ammunition, explosive nor was he involved in the
larger conspiracy allegedly hatched by the co-accuseds and the
wanted accused. No overt act has been attributed to the Applicant
about transportation of the arms and ammunition. There is no
evidence to show that the accused persons wanted to assassinate
the then Chief Minister of Gujarat Mr. Narendra Modi. The emails
allegedly collected/recovered at the instance of the Applicant are
not supported with the Certificate under Section 65B of the
Evidence Act. The CDRs were also not supported with certificates
under Section 65B of the Evidence Act. The confessions of A-1 and
Applicant allegedly recorded by the police suffer from various
loopholes and the same were retracted by them at the very first
opportunity on being remanded to Judicial custody. Since the
Applicant and A-1 have been acquitted for the offences of MCOC
Act, their confessions are insignificant. Therefore, the conviction of
the Applicant for the said offences is not sustainable in law.
5.1 Mr. Solkar has further submitted that the Applicant was
arrested in this case on 19th May 2006 and since then, he has been
in the jail. The Applicant was only 24 years of age at the time of
his arrest. Now, he is aged 44 years. Till date, the Applicant has
undergone 20 years of imprisonment. Thus, his prime youth has
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been spent in jail. The Applicant has a clean record and he has not
been convicted in any other case. The Applicant is not likely to
abscond. Therefore, the Applicant is entitled for bail.
5.2 To support his submissions, Mr. Solkar, the learned Counsel
for the Applicant has relied upon the following decisions :-
Saudan Singh v/s. State of Uttar Pradesh 2022 SCC Online SC 697
Suleman v/s. The State of Uttar Pradesh (2022) 19 SCC 660
Dinesh @ Paul Daniel Khajekar v/s. Hon’ble Supreme Court
The State of Maharashtra Criminal Appeal No.2987/2023
Akash Vitthal Shinde v/s. I.A. No.3955 of 2023
The State of Maharashtra in Criminal Appeal No.1186 of 2023
Dev Parmanand Chalwadi v/s. I.A. No.2632 of 2023
State of Maharashtra in Criminal Appeal No.156 of 2017
Salman Salim Naje v/s. IA No. 1413 of 2025 in
The State of Maharashtra and anr. Criminal Appeal No.739 of 2019
Vernon v/s. 2023 SCC OnLine SC 885
The State of Maharashtra and anr.
Yedala Subba Rao and another v/s. (2023) 6 SCC 65
Union of India
Dhan Singh v/s. Union of India 2019 SCC OnLine Bom 5721
6. Ms. Bajoria, the learned APP, on the other hand, has strongly
opposed the Application by submitting that this case pertains to
massive haul of arms, ammunition and explosive such as 16 AK-47
Rifles, 62 magazines, 3200 live cartridges and 43 kg of Explosive
Substance (RDX) and other materials. Said arms and ammunition
etc. were collected to strike terror as a revenge of Godhra incident.
6.1 Ms Bajoria submitted that, the Applicant was a member of
the terrorist organization named SIMI and Lashkar-e-Toiba. The
e-mail correspondence recovered at the instance of the Applicant
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clearly indicate that the Applicant, the other accused persons and
the wanted accused – Junaid had hatched a conspiracy to commit
this crime. In this regard, PW-21, the panch witness to the recovery
of the e-mails, has supported the prosecution case. The
confessional statement of the Applicant and his co-accused
revealed that the Applicant along with convicted A-22 and wanted
accused – Faiyaz Kazi had gone to Kathmandu to meet the wanted
accused – Junaid. The CDR of the mobile phone number used by
the Applicant revealed that, during the relevant period, he was in
contact with the convicted A-1, A-10 and A-22. She submitted that
the seized arms and ammunition were arranged with the aid of the
wanted accused Junaid and others. Since beginning, the Applicant
was involved with his co-accused to procure the arms and
ammunition. This fact is evident from the e-mails that Applicant
had sent after seizure of the arms etc. PW-28, the owner of the
Cyber Cafe and PW-38, who was working there at the relevant
time, have corroborated the confession of the Applicant. She
submitted that, the offence is serious and the Applicant would have
to undergo 40 years of imprisonment for the same. Presently, the
Applicant has undergone only 20 years of the sentence. The case
against the co-accused is distinct to the case against the Applicant.
As such, the ground of parity is not available to the Applicant.
Therefore, having regard to the scope of the Section 430 BNSS, the
Applicant is not entitled for bail.
7. We have carefully considered these submissions and perused
the record. Record indicates that, the Applicant was convicted
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primarily on the basis of the e-mail correspondence, his confession
and the confession of the A-1.
7.1 In so far as the e-mail correspondence is concerned, it is the
prosecution case that certain e-mail was sent by the Applicant after
carrying out a bomb blast at Ahmedabad, in which about 25-50
persons were injured. However, this e-mail message is not directly
connected with the transportation of the subject arms, ammunition
and the explosive. Mr. Solkar has categorically submitted that, the
Applicant has been acquitted in the case of the bomb blast at
Ahmedabad. He submitted that, no Certificate issued under Section
65B of the Evidence Act was produced to support the recovery of
the e-mail correspondence. This fact is not controverted by the
Respondent in their say. Therefore, how the said e-mails were
proved is required to be re-examined.
7.2 There is no material to show that the Applicant was directly
or indirectly involved in the procurement and transportation of the
subject arms, ammunition and the explosive. As alleged, the
Applicant had made his confession between 13 th to 15th June,
2006. Mr. Solkar has submitted that, immediately, on 16 th June the
Applicant had retracted his confession. The confession does not
indicate that the Applicant was aware as to when, how and where
the subject arms, ammunition and the explosive would be
transported and delivered to strike terror as per the larger
conspiracy. Except the said e-mails, there is no other evidence
corroborating the confession of the Applicant. The Applicant was
acquitted for the offence under Section 3 (2), 3 (1) (ii) and 3 (4)
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of the MCOC Act. He was also acquitted of the offences under
Sections 16 and 23 of the UAPA and Section 25 (1A), 25 (1AA), 25
(1B) (a), 26 r/w Section 7 and 27 of the Arms Act and Section 4
(b) (ii) and 5 (b) and 6 of the Explosive Substances Act and
Section 9B(a) (b) of the Explosive Act.
7.3 In the above circumstances, it appears that only because the
Applicant had met the wanted accused Junaid, it was inferred that
he wanted to join Jihad and he was in contact with the co-accused.
However, that by itself may not be sufficient to indicate readiness
or willingness on the part of the Applicant to play a major role in
Jihad which was to be carried out with the help of the seized arms
and ammunition. We are also of the prima facie opinion that there
is no reliable evidence to implicate the Applicant on the above
count. However, the said aspects of the matter would call for more
detailed scrutiny based on the evaluation of the evidence, which
will be possible only during the final hearing of the Appeal.
7.4 Having regard to the evidence on record, based on which,
the Original Accused Nos.10, 14 and 19 were convicted and
considering the fact that those accused persons have already been
released on bail by this Court during the pendency of the Appeal
filed against their conviction, hence, by applying the principle of
parity, we do not find any justifiable ground to take a different
view in the matter when it comes to the question of releasing
present Applicant on bail. Rather, we are of the opinion that on
the ground of parity, the Applicant would also be entitled to an
order releasing him on bail from this Court.
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7.5 At the time of his arrest, the Applicant was aged 24 years.
The Applicant has been in jail for last 20 years. He has already
undergone half of the maximum sentence period of 40 years. The
Appeal is not likely to be heard any time soon. The Applicant is not
convicted in any other case. He is not likely to abscond.
7.6 In view thereof, we are inclined to allow this Application.
Hence, following Order is passed :-
(i) The Applicant - Sayyed Aakif Sayyad Zafaruddin
be enlarged on bail on furnishing P.R. Bond in the sum of
Rs.2,00,000/- with two local solvent sureties in the like
amount.
(ii) The Applicant shall report to the trial Court,
once in a month between 1 st and 5th day of calendar
month between 10:00 a.m. to 02:00 p.m., till his appeal
is finally disposed of.
(iii) The Applicant shall attend the office of the ATS,
Kala Chowky police station, Mumbai once in a month
between 1st and 5th day of the calendar month between
10:00 a.m. to 02:00 p.m. till his appeal is finally
disposed of.
(iv) The Applicant shall not leave the jurisdiction of
the trial Court without prior permission of the Court.
(v) The Applicant shall surrender his passport, if
having or in his possession, before the trial Court, before
his release from Jail.
(vi) If there are two consecutive defaults in
appearing before the trial Court/office of the ATS, the
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learned Judge/ATS shall make a report to the High Court
and the prosecution would be at liberty to file an
application seeking cancellation of this bail.
(vii) Before his release from jail, the Applicant shall
keep the trial Court and ATS, Mumbai informed of his
current address and mobile contact number as to where
he would stay till the appeal is finally disposed of.
(viii) The Applicant shall not change his residential
address & contact No. without prior permission of the
trial Court.
8. The Interim Application stands disposed of.
(SHYAM C. CHANDAK, J.) (SUMAN SHYAM, J.)
PREETI
HEERO
JAYANI
Digitally signed by
PREETI HEERO
JAYANI
Date: 2026.04.30
16:13:25 +0530
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