JAVED GULAM NABI SHAIKHversusSTATE OF MAHARASHTRA AND ANOTHER

           [2024] 7 S.C.R. 992 : 2024 INSC 645

                Javed Gulam Nabi Shaikh
                           v.
            State of Maharashtra and Another
              (Criminal Appeal No. 2787 of 2024)
                            03 July 2024
         [J.B. Pardiwala and Ujjal Bhuyan, JJ.]

                     Issue for Consideration
High Court whether justified in denying bail to the appellant,
an under-trial prisoner prosecuted under Unlawful Activities
(Prevention) Act, 1967 and Penal Code, 1860.

                             Headnotes†
Bail – Denial – When not justified – Constitution of India – Article
21 – Right to speedy trial – Applicability of, irrespective of the
seriousness of crime – Unlawful Activities (Prevention) Act,
1967 – Penal Code, 1860 – ss.489B, 489C, 120B, 34 – National
Investigation Agency Act, 2008 – s.19 – Fake counterfeit Indian
currency notes seized from the appellant-accused – In custody
as an under-trial prisoner for four years – Bail denied:
Held: Bail is not to be withheld as a punishment – If the State
or any prosecuting agency including the court concerned has no
wherewithal to provide or protect the fundamental right of an accused
to have a speedy trial as enshrined u/Article 21, then it should not
oppose the plea for bail on the ground that the crime committed is
serious – Howsoever serious a crime may be, an accused has a
right to speedy trial – Article 21 applies irrespective of the nature of
the crime – Petitioner is still an accused and not a convict – He has
been in jail as an under-trial prisoner for four years – No charges
have been framed till date – There are around eighty witnesses to
be examined, no clarity as to when the trial will ultimately conclude –
The over-arching postulate of criminal jurisprudence that an accused
is presumed to be innocent until proven guilty cannot be brushed
aside lightly, howsoever stringent the penal law may be – Right of
the accused to have a speedy trial was infringed thereby violating
Article 21 – Impugned order passed by the High Court set aside –
Appellant granted bail. [Paras 7, 8, 9, 19-21, 22, 23]
Criminal Law – Humanist approach towards delinquents –
Need for – Discussed. [Para 18]
[2024] 7 S.C.R.                                                             993

    Javed Gulam Nabi Shaikh v. State of Maharashtra and Another


                              Case Law Cited
     Gudikanti Narasimhulu & Ors. v. Public Prosecutor [1978] 2 SCR
     371 : (1978) 1 SCC 240; Gurbaksh Singh Sibba v. State of Punjab
     [1980] 3 SCR 383 : (1980) 2 SCC 565; Hussainara Khatoon v.
     Home Secy., State of Bihar [1979] 3 SCR 169 : (1980) 1 SCC 81;
     Kadra Pahadiya & Ors. v. State of Bihar (1981) 3 SCC 671;
     Abdul Rehman Antulay v. R.S. Nayak [1991] Supp. 3 SCR 325 :
     (1992) 1 SCC 225; Mohd Muslim @ Hussain v. State (NCT of
     Delhi) [2023] 3 SCR 697 : 2023 INSC 311; Union of India v. K.A.
     Najeeb [2021] 1 SCR 443 : (2021) 3 SCC 713; Satender Kumar
     Antil v. Central Bureau of Investigation [2022] 10 SCR 351 : (2022)
     10 SCC 51 – relied on.

                                List of Acts
     Constitution of India; Unlawful Activities (Prevention) Act 1967;
     National Investigation Agency Act, 2008; Penal Code, 1860; Code
     of Criminal Procedure, 1973.

                             List of Keywords
     Bail; Bail denied; Under-trial prisoner; Accused not convict; Article
     21 of the Constitution of India; Speedy trial; Fundamental right of
     accused to speedy trial; Seriousness of crime; Nature of crime
     serious; Accused presumed to be innocent until proven guilty;
     Criminal jurisprudence; Criminal law.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2787
     of 2024
     From the Judgment and Order dated 05.02.2024 of the High Court
     of Judicature at Bombay in CRLA No. 1060 of 2023
                         Appearances for Parties
     Sherali S. Khan, Sushant Kumar Yadav, Ankur Yadav, Advs. for the
     Appellant.
     Abhikalp Pratap Singh, Siddharth Dharmadhikari, Aaditya Aniruddha
     Pande, Bharat Bagla, Ms. Aagam Kaur, Aditya Krishna, Ms. Preet
     S. Phanse, Ms. Yamini Singh, Adarsh Dubey, Kartikey, Shubhendu
     Anand, Siddharth Sinha, Madhav Sinhal, Amit Sharma B, Arvind
     Kumar Sharma, Advs. for the Respondents.
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                  Judgment / Order of the Supreme Court
                                     Order
1.     Leave granted.
2.     This appeal arises from the order passed by the High Court of
       Judicature at Bombay dated 5th February 2024 in Criminal Appeal No
       1060 of 2023 by which the High Court declined to release the appellant
       on bail in connection with his prosecution under the provisions of the
       Unlawful Activities (Prevention) Act 1967 (for short ‘UAPA’).
3.     When this matter was taken up for hearing, both, the counsel
       appearing for the National Investigation Agency (NIA) as well as the
       counsel appearing for the State prayed for time. Having regard to
       the fact that the appellant is in custody past four years, we declined
       to adjourn the matter and proceeded to hear the same on merits.
4.     It appears from the materials on record that on 9th February 2020
       at about 9.30 am, on the basis of some secret information, the
       appellant herein was apprehended by Mumbai Police of the DCB
       CID Unit VIII from a bus stop at Terminal II Chhatrapati Shivaji
       Maharaj International Airport, Andheri. The search of the person of
       the appellant was undertaken. The appellant had a bag with him
       and from the bag 1193 numbers of counterfeit Indian currency notes
       of the denomination of Rs 2,000 were recovered. The counterfeit
       notes were seized and the appellant herein was arrested. The First
       Information Report was registered at the Sahar Police Station for
       the offences punishable under Sections 489B, 489C, 120B read with
       Section 34 of the Indian Penal Code.
5.     It is the case of the prosecution that the consignment of the counterfeit
       notes was smuggled from Pakistan to Mumbai. Having regard to the
       nature of the crime as alleged, the investigation was ultimately taken
       over by the NIA. As a result, Case No RC/03/20/NIA/Mumbai came to
       be registered for the offences enumerated above. The investigation
       further revealed that on 6th February 2020, the appellant visited
       Dubai, and while he was in Dubai, he is said to have received the
       counterfeit notes from one of the absconding accused persons. On
       9th February 2020, he is said to have returned to India.
6.     The materials on record further reveal that two co-accused were
       arrested in connection with this offence and both are on bail as on
[2024] 7 S.C.R.                                                            995

     Javed Gulam Nabi Shaikh v. State of Maharashtra and Another


     today. So far as one of the co-accused is concerned, the order granting
     bail to him is now the subject matter of challenge before this Court.
7.   Having heard the learned counsel appearing for the parties and
     having gone through the materials on record, we are inclined to
     exercise our discretion in favour of the appellant herein keeping in
     mind the following aspects:
     (i)    The appellant is in jail as an under-trial prisoner past four years;
     (ii)   Till this date, the trial court has not been able to even proceed
            to frame charge; and
     (iii) As pointed out by the counsel appearing for the State as well
           as NIA, the prosecution intends to examine not less than eighty
           witnesses.
8.   Having regard to the aforesaid, we wonder by what period of time,
     the trial will ultimately conclude. Howsoever serious a crime may
     be, an accused has a right to speedy trial as enshrined under the
     Constitution of India.
9.   Over a period of time, the trial courts and the High Courts have
     forgotten a very well settled principle of law that bail is not to be
     withheld as a punishment.
10. In the aforesaid context, we may remind the trial courts and the
    High Courts of what came to be observed by this Court in Gudikanti
    Narasimhulu & Ors. v. Public Prosecutor, High Court reported in
    (1978) 1 SCC 240. We quote:
            “What is often forgotten, and therefore warrants reminder,
            is the object to keep a person in judicial custody pending
            trial or disposal of an appeal. Lord Russel, C.J., said [R
            v. Rose, (1898) 18 Cox] :
                 “I observe that in this case bail was refused for the
                 prisoner. It cannot be too strongly impressed on
                 the, magistracy of the country that bail is not to be
                 withheld as a punishment, but that the requirements
                 as to bail are merely to secure the attendance of the
                 prisoner at trial.”
11. The same principle has been reiterated by this Court in Gurbaksh
    Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 that
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       the object of bail is to secure the attendance of the accused at the
       trial, that the proper test to be applied in the solution of the question
       whether bail should be granted or refused is whether it is probable
       that the party will appear to take his trial and that it is indisputable
       that bail is not to be withheld as a punishment.
12. Long back, in Hussainara Khatoon v. Home Secy., State of Bihar
    reported in (1980) 1 SCC 81, this court had declared that the right
    to speedy trial of offenders facing criminal charges is “implicit in the
    broad sweep and content of Article 21 as interpreted by this Court”.
    Remarking that a valid procedure under Article 21 is one which
    contains a procedure that is “reasonable, fair and just” it was held that:
            “Now obviously procedure prescribed by law for depriving a
            person of liberty cannot be “reasonable, fair or just” unless
            that procedure ensures a speedy trial for determination
            of the guilt of such person. No procedure which does
            not ensure a reasonably quick trial can be regarded as
            “reasonable, fair or just” and it would fall foul of Article
            21. There can, therefore, be no doubt that speedy trial,
            and by speedy trial we mean reasonably expeditious trial,
            is an integral and essential part of the fundamental right
            to life and liberty enshrined in Article 21. The question
            which would, however, arise is as to what would be the
            consequence if a person accused of an offence is denied
            speedy trial and is sought to be deprived of his liberty by
            imprisonment as a result of a long delayed trial in violation
            of his fundamental right under Article 21.”
13. The aforesaid observations have resonated, time and again, in
    several judgments, such as Kadra Pahadiya & Ors. v. State of
    Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay
    v. R.S. Nayak reported in (1992) 1 SCC 225. In the latter the court
    re-emphasized the right to speedy trial, and further held that an
    accused, facing prolonged trial, has no option:
            “The State or complainant prosecutes him. It is, thus, the
            obligation of the State or the complainant, as the case may
            be, to proceed with the case with reasonable promptitude.
            Particularly, in this country, where the large majority of
            accused come from poorer and weaker sections of the
            society, not versed in the ways of law, where they do not
[2024] 7 S.C.R.                                                          997

    Javed Gulam Nabi Shaikh v. State of Maharashtra and Another


           often get competent legal advice, the application of the
           said rule is wholly inadvisable. Of course, in a given case,
           if an accused demands speedy trial and yet he is not given
           one, may be a relevant factor in his favour. But we cannot
           disentitle an accused from complaining of infringement of
           his right to speedy trial on the ground that he did not ask
           for or insist upon a speedy trial.”
14. In Mohd Muslim @ Hussain v. State (NCT of Delhi) reported in
    2023 INSC 311, this Court observed as under:
           “21. Before parting, it would be important to reflect that
           laws which impose stringent conditions for grant of bail,
           may be necessary in public interest; yet, if trials are not
           concluded in time, the injustice wrecked on the individual
           is immeasurable. Jails are overcrowded and their living
           conditions, more often than not, appalling. According to
           the Union Home Ministry’s response to Parliament, the
           National Crime Records Bureau had recorded that as
           on 31st December 2021, over 5,54,034 prisoners were
           lodged in jails against total capacity of 4,25,069 lakhs
           in the country. Of these 122,852 were convicts; the rest
           4,27,165 were undertrials.
           22. The danger of unjust imprisonment, is that inmates are
           at risk of “prisonisation” a term described by the Kerala
           High Court in A Convict Prisoner v. State reported in 1993
           Cri LJ 3242, as “a radical transformation” whereby the
           prisoner:
                “loses his identity. He is known by a number. He
                loses personal possessions. He has no personal
                relationships. Psychological problems result from loss
                of freedom, status, possessions, dignity any autonomy
                of personal life. The inmate culture of prison turns
                out to be dreadful. The prisoner becomes hostile by
                ordinary standards. Self-perception changes.”
           23. There is a further danger of the prisoner turning
           to crime, “as crime not only turns admirable, but the
           more professional the crime, more honour is paid to
           the criminal” (also see Donald Clemmer’s ‘The Prison
           Community’ published in 1940). Incarceration has further
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          deleterious effects - where the accused belongs to the
          weakest economic strata: immediate loss of livelihood,
          and in several cases, scattering of families as well as loss
          of family bonds and alienation from society. The courts
          therefore, have to be sensitive to these aspects (because
          in the event of an acquittal, the loss to the accused is
          irreparable), and ensure that trials – especially in cases,
          where special laws enact stringent provisions, are taken
          up and concluded speedily.”
15. The requirement of law as being envisaged under Section 19 of the
    National Investigation Agency Act, 2008 (hereinafter being referred
    to as “the 2008 Act”) mandates that the trial under the Act of any
    offence by a Special Court shall be held on day-to-day basis on all
    working days and have precedence over the trial of any other case
    and Special Courts are to be designated for such an offence by the
    Central Government in consultation with the Chief Justice of the High
    Court as contemplated under Section 11 of the 2008.
16. A three-Judge Bench of this Court in Union of India v. K.A. Najeeb
    reported in (2021) 3 SCC 713] had an occasion to consider the long
    incarceration and at the same time the effect of Section 43-D(5) of
    the UAP Act and observed as under : (SCC p. 722, para 17)
          “17. It is thus clear to us that the presence of statutory
          restrictions like Section 43-D(5) of the UAPA per se does
          not oust the ability of the constitutional courts to grant
          bail on grounds of violation of Part III of the Constitution.
          Indeed, both the restrictions under a statute as well as
          the powers exercisable under constitutional jurisdiction
          can be well harmonised. Whereas at commencement of
          proceedings, the courts are expected to appreciate the
          legislative policy against grant of bail but the rigours of
          such provisions will melt down where there is no likelihood
          of trial being completed within a reasonable time and the
          period of incarceration already undergone has exceeded
          a substantial part of the prescribed sentence. Such an
          approach would safeguard against the possibility of
          provisions like Section 43-D(5) of the UAPA being used as
          the sole metric for denial of bail or for wholesale breach
          of constitutional right to speedy trial.”
[2024] 7 S.C.R.                                                          999

    Javed Gulam Nabi Shaikh v. State of Maharashtra and Another


17. In the recent decision, Satender Kumar Antil v. Central Bureau of
    Investigation reported in (2022) 10 SCC 51, prolonged incarceration
    and inordinate delay engaged the attention of the court, which
    considered the correct approach towards bail, with respect to several
    enactments, including Section 37 NDPS Act. The court expressed
    the opinion that Section 436A (which requires inter alia the accused
    to be enlarged on bail if the trial is not concluded within specified
    periods) of the Criminal Procedure Code, 1973 would apply:
           “We do not wish to deal with individual enactments as
           each special Act has got an objective behind it, followed
           by the rigour imposed. The general principle governing
           delay would apply to these categories also. To make it
           clear, the provision contained in Section 436-A of the Code
           would apply to the Special Acts also in the absence of any
           specific provision. For example, the rigour as provided
           under Section 37 of the NDPS Act would not come in the
           way in such a case as we are dealing with the liberty of
           a person. We do feel that more the rigour, the quicker the
           adjudication ought to be. After all, in these types of cases
           number of witnesses would be very less and there may
           not be any justification for prolonging the trial. Perhaps
           there is a need to comply with the directions of this Court
           to expedite the process and also a stricter compliance of
           Section 309 of the Code.”
18. Criminals are not born out but made. The human potential in
    everyone is good and so, never write off any criminal as beyond
    redemption. This humanist fundamental is often missed when dealing
    with delinquents, juvenile and adult. Indeed, every saint has a past
    and every sinner a future. When a crime is committed, a variety of
    factors is responsible for making the offender commit the crime.
    Those factors may be social and economic, may be, the result of
    value erosion or parental neglect; may be, because of the stress
    of circumstances, or the manifestation of temptations in a milieu of
    affluence contrasted with indigence or other privations.
19. If the State or any prosecuting agency including the court concerned
    has no wherewithal to provide or protect the fundamental right of an
    accused to have a speedy trial as enshrined under Article 21 of the
    Constitution then the State or any other prosecuting agency should
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     not oppose the plea for bail on the ground that the crime committed
     is serious. Article 21 of the Constitution applies irrespective of the
     nature of the crime.
20. We may hasten to add that the petitioner is still an accused; not a
    convict. The over-arching postulate of criminal jurisprudence that an
    accused is presumed to be innocent until proven guilty cannot be
    brushed aside lightly, howsoever stringent the penal law may be.
21. We are convinced that the manner in which the prosecuting agency
    as well as the Court have proceeded, the right of the accused to
    have a speedy trial could be said to have been infringed thereby
    violating Article 21 of the Constitution.
22. In view of the aforesaid, this appeal succeeds and is hereby allowed.
    The impugned order passed by the High Court is set aside.
23. The appellant is ordered to be released on bail subject to the terms
    and conditions which the trial court may deem fit to impose. However,
    we on our own would impose the condition that the appellant shall
    not leave the limits of Mumbai city and shall mark his presence at
    the concerned NIA office or police station once every fifteen days.
    Any other condition which the trial court may deem fit to impose, it
    may do so in accordance with law.
24. Pending applications, if any, stand disposed of.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Divya Pandey