P.V. Sanjay Kumar, C.J.

1. This appeal, filed under Section 21(4) of the National Investigation Agency Act, 2008, arises out of the order dated 12.10.2020 passed by the learned Special Judge (NIA), Manipur, in Cril. Misc.(B) Case No. 10 of 2020 {Ref: Special Trial (NIA) Case No. 1 of 2016}. By the said order, the learned Special Judge rejected the bail application of the appellant.

2. The appellant is one of the accused facing trial in Special Trial (NIA) Case No. 1 of 2016. This case originally related to FIR No. 14(6)2015 TPL-PS registered on the file of Tengnoupal Police Station under Sections 302, 307, 120-B, 121 and 121-A IPC; Section 25(1-C) of the Arms Act, 1959; Section 5 of the Explosive Substances Act, 1908; and Sections 16 and 20 of the Unlawful Activities(Prevention) Act, 1967. The case was then handed over to the National Investigation Agency and registered as NIA Case No. RC-03/2015/NIA-GUW.

3. The appellant was initially arrested on 11.06.2015 in connection with FIR No. 203(6)2015 Lamphel PS, registered under Sections 17 & 20 of the Unlawful Activities (Prevention) Act, 1967. He was again arrested on 20.06.2015 in connection with FIR No. 179(12)2009 Lamphel PS, registered under Sections 387 & 400 IPC. On 29.06.2015, he was informed that he was placed under arrest in relation to FIR No. 14(6)2015 Tengnoupal PS also.

4. Charge-Sheet dated 19.12.2015 was filed in NIA Case No. RC-03/2015/NIA-GUW against the appellant in January, 2016. The appellant was shown as A-3 therein. This Charge-Sheet pertained to the appellant alone. Altogether, 31 other accused remained to be charge-sheeted as on that date. Charges were framed against the appellant on 16.04.2016 under Sections 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. The charges framed against him read as under:

'Firstly, that on or about 4th June, 2015, you conspired, abetted the commission of a terrorist act of attacking a convoy of 6 Dogra Regiment of Indian Army at Paraolon, Chandel District, P.S. Tengnoupal, killing a total of 18 army personnel and grievously injuring 15 army personnel, thereby committed the offence punishable U/s. 18 of the Unlawful Activities Prevention Act and within my cognizance.

Secondly, that you on or about the same time, was a member of a terrorist organization i.e., NSCN(K), which is involved in terrorist act and thereby committed the offence U/s. 20 of the Unlawful Activities Prevention Act and within my cognizance.'

5. The first bail application filed by the appellant in Cril. Misc.(B) Case No. 42 of 2016 was dismissed by the learned Special Judge (NIA), Manipur, on 07.01.2017. His second bail application in Cril. Misc.(B) Case No. 32 of 2017 was dismissed as not pressed on 18.05.2019. His third bail application in Cril. Misc.(B) Case No. 43 of 2019 was dismissed by order dated 29.06.2019. The subject bail application in Cril. Misc. (B) Case No. 10 of 2020 was filed by him on 21.02.2020. The National Investigation Agency (for brevity, 'the NIA') filed its reply on 07.03.2020. Dismissal of the said bail application, vide the order dated 12.10.2020, led to the filing of this appeal.

6. Heard Mr. Praveen Kumar Potsangbam, learned counsel for the appellant; and Mr. Kh. Samarjit, learned Special PP for the respondent-NIA.

7. Mr. Praveen Kumar Potsangbam, learned counsel, would contend that the learned Special Judge erred in interpreting Section 17 of the National Investigation Agency Act, 2008 (hereinafter, 'the Act of 2008'), and Section 44 of the Unlawful Activities (Prevention) Act, 1967, (hereinafter, 'the Act of 1967'). He would assert that non-furnishing of copies of the statements of protected witnesses was not in keeping with these provisions. He would contend that the right of the appellant to a fair trial was impaired owing to this lapse. He would assert that, despite the lapse of several years since the filing of the Charge-Sheet, only a handful of witnesses have been examined till date and argue that there is no possibility of the trial concluding any time soon and the continued incarceration of the appellant was unfair and unjust as he is yet to be found guilty of the charged offences. He would further argue that the delay in the trial violated his right to speedy trial and his right to personal liberty. He would pray for setting aside of the order under appeal and for the release of the appellant on bail, pending the trial.

8. Relying on the affidavit-in-opposition dated 11.02.2021 filed by the Inspector of Police, NIA Branch office, Imphal, Mr. Kh. Samarjit, learned Special PP, would contend that the appellant is a member and self-styled Chairman of the Chandel Unit of the proscribed National Socialist Council of Nagaland (Khaplang) [NSCN(K)] and was involved in the ambush on 04.06.2015 at Paraolon Village of Chandel District under Tengnoupal P.S., wherein combined cadres of NSCN(K) and other banned organizations, viz., KYKL, KLO and KCP, waged war against the Government of India and killed 18 soldiers of the 6-Dogra Regiment of the Indian Army and injured many others. As he was already in judicial custody in connection with another FIR and pursuant to the Order/Warrant dated 29.06.2015 issued by the learned Special Judge, NIA, Manipur, the appellant was formally arrested in relation to the NIA case also. The Charge-Sheet was filed against him before the learned Special Judge, NIA, Manipur, under Sections 18 and 20 of the Act of 1967, pending investigation for collecting evidence against the other accused. Supplementary Charge-Sheets dated 09.07.2018 and 05.07.2019 were filed in relation to some of the other accused. After framing of charges against five of the accused, the learned Special Judge continued with the trial and as on the date of filing of the said affidavit, viz., 11.02.2021, 25 prosecution witnesses, including one protected witness, were examined. One accused, who had turned approver, was examined in part. As per the Inspector, statements of the protected witnesses were not provided to the appellant to ensure their safety and security. This, according to him, was in keeping with the legal provisions.

Mr. Kh. Samarjit, learned Special PP, would argue that the charges framed against the appellant are serious in nature as he is the self-styled Chairman of a terrorist organization and there is a high possibility of his absconding, if released on bail. He would assert that no grounds are made out to interfere with the exercise of discretion by the learned Special Judge, in denying bail to the appellant, and that the appeal deserves to be dismissed.

9. Additional affidavit dated 17.03.2021 was filed by the NIA through its Inspector at the Imphal Branch Office in relation to the progress of the case before the learned Special Judge. This affidavit disclosed that 27 witnesses had been examined till 15.03.2021. Another additional affidavit dated 17.03.2021 was filed by the NIA, through its Deputy Superintendent of Police, Imphal Branch Office. Therein, he stated that there were altogether six protected witnesses in this case, who were granted such status by the learned Special Judge under Section 17 of the Act of 2008. He placed on record the depositions of Protected Witnesses A and B.

10. Perusal of the deposition of Protected Witness-A before the learned Special Judge reflects that he admitted acquaintance with the appellant and claimed that the appellant had requested him to give some monetary help as a condition for getting him a contract. The witness said that he did not give any monetary help and 20 days thereafter, when he met the appellant again, he told him that he would offer such help only after the contract was given to him. The witness stated that the appellant enquired with him whether there were many security checks along the Imphal-Moreh Highway, as he could ensure that the contract work was given only after he reached Moreh. The witness claimed that he replied that he did not know about security checks along the Highway, as he did not go to Moreh. He stated that there was no occasion thereafter for him to meet the appellant, but he came to know from the newspapers and local cable networks that he had been arrested.

During his cross-examination, the witness denied the suggestion that he had never met the appellant at any point of time but admitted that he knew nothing about the present case. The statement of this witness recorded under Section 164 Cr.P.C. however went further. He stated therein that the appellant, during May, 2015, told him to help in the work of NSCN(K) and asked him whether checking by security personnel was strict in Tengnoupal area on the way to Moreh. He also asked where the check points were located. These aspects are not found in his deposition before the learned Special Judge.

11. Protected Witness-B was an active member of a proscribed outfit earlier. He stated that he was witness to 12 cadres being given arms in May, 2015, and he saw them leaving the camp with those arms. He stated that he was informed later by one of the said cadres that they had conducted an ambush. He stated before the Court that he could identify the accused if they were shown to him but he did not recognize the appellant. He was able to identify two of the accused in the case by name.

12. The statements of the other four protected witnesses, recorded under Section 161 Cr.P.C., were produced in a sealed cover by the NIA. These statements read to the effect that the appellant is a member as well as the Chairman of the NSCN(K) in Amamcht region of Chandel District and that he had sought information about the movement and deployment of security forces in relation to a planned attack.

13. Section 17 of the Act of 2008 and Section 44 of the Act of 1967 are in identical terms. They deal with protection of witnesses. The issue as to whether non-furnishing of statements/depositions of protected witnesses to the appellant would be in keeping with or in excess of the measures provided for protection of such witnesses under the aforestated legal provisions is not germane to the issue presently under consideration, viz., the entitlement of the appellant to be released on bail. That issue would therefore have to be considered by the appropriate Court at the appropriate stage and it is accordingly left open.

14. It may be noted that charges were framed against the appellant under Sections 18 and 20 of the Act of 1967. Section 18 deals with punishment for conspiracy, etc. and provides that whoever conspires or attempts to commit, or advocates, abets, advises or incites, directs or knowingly facilitates the commission of a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable 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. Section 20 of the Act of 1967 deals with punishment for being a member of a terrorist gang or organization and states that any person who is a member of a terrorist gang or terrorist organization, which is involved in a terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine. In effect, the punishment in relation to both the offences alleged against the appellant may extend to imprisonment for life, though Section 18 posits a minimum imprisonment of five years.

15. In this regard, it would be relevant to peruse the Charge-Sheet filed by the NIA against the appellant. As per Para Nos. 17.13 and 17.14 thereof, a group-photograph was issued by terrorist groups claiming responsibility for the ambush on 04.06.2015, wherein 20 cadres were visible in combat dress with sophisticated arms and they were stated to have jointly carried out the attack. On the basis of the statements of witnesses, including protected witnesses, family members and acquaintances of the involved cadres, identities of seventeen cadres of the NSCN(K), KYKL, KLO and KCP, who were present in the photograph, were ascertained. The appellant did not figure in this photograph. According to Para No. 17.16, investigation established that certain named senior leaders of NSCN(K), KYKL and KCP were directly involved in conspiring and giving effect to the terrorist act. Significantly, the name of the appellant does not figure even in this paragraph. It is only in Para No. 17.18 that his name finds mention. Therein, it is stated that during the course of investigation, the appellant was arrested on 11.06.2015 for his close association with NSCN(K), he being the Chairman of NSCN(K) in Chandel region. On analysis of the call data records of his mobile phone, his linkage was revealed and he was arrested in connection with this case on 29.06.2015 and subjected to interrogation. His Blackberry mobile phone with SIM card were seized. On the basis of the statements made by the protected witnesses, it was established that the appellant is an active member of NSCN(K). Analysis of the call data records of his mobile phone disclosed that he was regularly and constantly in communication with Myanmar-based contact numbers as well as Indian numbers which were used by senior leaders of NSCN(K). Investigation revealed that the appellant associated with the conspiracy and thereby conspired with senior leadership of NSCN(K), being a senior office bearer of the terrorist gang NSCN(K), in carrying out the terrorist act of ambush on the convoy of army personnel on 04.06.2015 near Paraolon Village in Chandel District, in which 18 soldiers were killed and 15 others injured.

16. The NIA listed 109 witnesses in all to be examined in this case. About 1/4th of those witnesses have been examined in the trial till date. The order under appeal reflects that the learned Special Judge opined that the charges framed against the accused were serious and there was a high possibility of his absconding if released on bail, as he was the Chairman of the NSCN(K) in Chandel region. Significantly, the learned Special Judge did not consider or take into account the fact that bail was being sought in relation to offences covered by a special legislation, viz., the Act of 1967, and more particularly, the mandate of the proviso to Section 43D(5) thereof.

17. Section 43D of the Act of 1967, inserted therein by Act 35 of 2008 with effect from 31.12.2008, details modified application of certain provisions of the Code of Criminal Procedure, 1973, to offences punishable under the Act of 1967. Section 43D(5) is relevant and it reads as follows:

"43D(5): Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act, shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release.

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code, is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."

18. Sections 18 and 20, under which charges were framed against the appellant, form part of Chapter IV of the Act of 1967. In consequence, the question arises as to whether this Court, even in an appeal, has to undertake the exercise in terms of the proviso to Section 43D(5) of the Act of 1967. At this stage, it would be apposite to note precedential law on this aspect.

In State of Kerala vs. Raneef (2011) 1 SCC 784], the Supreme Court dealt with the validity of a bail order granted by the Kerala High Court in the context of offences under the Act of 1967. The prosecution placed reliance on Section 43D(5) of the Act of 1967. However, the Supreme Court held, on facts, that there was no prima facie proof that Raneef was involved in the crime and therefore, the proviso to Section 43D(5) had not been violated by the grant of bail. Significantly, Raneef was not named initially in the FIR, just as the appellant was not named in the case on hand.

19. In National Investigation Agency vs. Zahoor Ahmad Shah Watali (2019) 5 SCC 1], the Supreme Court observed that by virtue of the proviso to Section 43D(5) of the Act of 1967, it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Per the Supreme Court, the expression 'prima facie true' would mean that the materials/evidence collated by the investigating agency with reference to the accusation against the accused must prevail, until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. The Supreme Court noted that, in one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is 'prima facie true', as compared to the opinion of the accused 'not guilty' of such offence as required under other special enactments. In any case, per the Supreme Court, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the Act of 1967. The Supreme Court pointed out that elaborate examination or dissection of the evidence is not required to be done at this stage and the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. In a case where charges are framed, the Supreme Court noted that it would be an arduous task for the accused to satisfy the Court that despite the framing of charges, the materials presented along with the charge do not make out reasonable grounds for believing that the accusation against the accused is prima facie true. Similar opinion is required to be formed by the Court whilst considering prayer for bail made after filing of the final report under Section 173 Cr.P.C.. For that, the totality of the materials has to be kept in mind, including those presented along with the final report, and it is for the Court considering the bail application to assess the material presented by the investigating agency along with the report under Section 173 Cr.P.C. in its entirety to form an opinion as to whether there are reasonable grounds to believe that the accusation against the accused is prima facie true or otherwise.

20. However, in Union of India vs. K.A. Najeeb (2021) 3 SCC 713], a 3-Judge Bench of the Supreme Court considered Zahoor Ahmad Shah Watali (supra) and dealt with the issue of compliance with the proviso to Section 43D(5) of the Act of 1967 on altogether different parameters. K.A. Najeeb had approached the Special Court and the High Court for bail many times between the years 2015-2019 but bail was denied to him. The basis for such denial was that the bar against grant of bail under Section 43D(5) of the Act of 1967 was attracted. However, when he approached the High Court for the third time in May, 2019, questioning the Special Court's order denying him bail, he was afforded relief by the High Court. Bail was granted by the High Court after noting that the trial was yet to begin though he had been in custody for four years. Emphasis was placed on the mandate for expeditious trial under the Act of 2008 and the High Court held that he could not be kept in custody when the trial was not likely to commence in the near future. The High Court's bail order was stayed by the Supreme Court and he remained in judicial custody for nearly five years and five months. Reliance was placed by the Government on the earlier judgment in Zahoor Ahmad Shah Watali (supra) and it was pointed out that bail proceedings under special enactments were distinct and Courts were duty bound to refuse bail when the suspect was prima facie believed to be guilty.

The Supreme Court observed that the High Court had not determined the likelihood of the respondent being guilty or not or whether the rigours of Section 43D(5) of the Act of 1967 were alien to him. The Supreme Court then noted that the High Court had granted relief due to the long period of incarceration and the unlikelihood of the trial concluding any time in the near future and pointed out that even in the case of other special legislations, the accused had been enlarged on bail when they were in jail for an extended period of time with little possibility of early completion of the trial. Reference was made to Angela Harish Sontakke vs. State of Maharashtra  (2021) 3 SCC 723], a case under the provisions of the Act of 1967, wherein bail was granted to the accused notwithstanding Section 43D(5) of the Act of 1967, owing to the five-year custody already suffered; the likely period within which trial could be expected to be completed; and the fact that the lady had already been acquitted of similar charges in other cases. Reference was also made by the Supreme Court to Sagar Tatyaram Gorkhe vs. State of Maharashtra (2021) 3 SCC 725], another case arising under the Act of 1967, wherein the accused was enlarged on bail as he had been in jail for nearly four years and there were 147 witnesses still unexamined. It was noted that K.A. Najeeb had been in jail for more than five years but there were 276 witnesses still left to be examined and going by the sentence of less than eight years imprisonment imposed on his co-accused, he could be expected to receive a sentence within the same ballpark, if convicted. As two-thirds of such incarceration was already completed, the Supreme Court opined that he had already paid heavily for his acts. Reference was made to case law in the context of Part III of the Constitution covering within its protective ambit not only due procedure and fairness but also access to justice and speedy trial. Zahoor Ahmad Shah Watali (supra) was distinguished on facts by pointing out that, in that case, the High Court had reappreciated the entire evidence on record to overturn the Special Court's conclusion of a prima facie case on the strength of which it had rejected grant of bail. In effect, the exercise by the High Court was held to have gone beyond the statutory mandate of a prima facie assessment, prejudicing the trial itself, and that was the reason why the Supreme Court had to intervene and cancel the bail order. Considering the issue of Section 43D(5) of the Act of 1967, the Supreme Court observed as under:-

'It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of UAPA per-se does not oust the ability of 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 harmonized. Whereas at commencement of proceedings, 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 UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.'

The Supreme Court then went on to observe that the charges leveled against K.A. Najeeb were grave and had it been a case at the threshold, his prayer would have been out rightly turned down. However, keeping in mind the length of time spent by him in custody and the unlikelihood of the trial being completed anytime soon, the Supreme Court opined that the High Court had struck a balance between his right guaranteed under Part-III of the Constitution and the right of the authorities to establish the charges beyond any doubt.

21. This edict was again applied by the Supreme Court in Ashim vs. National Investigation Agency (2022) 1 SCC 695]. In that case, the appellant was 74 years of age and was arrested on 06.07.2012 in relation to offences alleged under the Act of 1967, amongst others, and over 100 witnesses still remained to be examined. Opining that the charges against him were undoubtedly serious, the Supreme Court observed that they had to be balanced with other factors: the period of incarceration which he had undergone and the likely period within which the trial could be expected to conclude. Observing that deprivation of personal liberty without ensuring speedy trial was not consistent with Article 21 of the Constitution of India, the Supreme Court referred to K.A. Najeeb (supra) and opined that the appellant had made out a case for grant of post-arrest bail pending trial.

22. In PV Varavara Rao and others vs. National Investigation Agency and others 2021 (2) Crimes 203 (Bom.)], a Division Bench of the Bombay High Court applied the law laid down in K.A. Najeeb (supra), taking note of the fact that the accused was 82 years of age, with precarious health, and the charges were yet to be framed, entailing a trial involving 200 witnesses.

23. Mr. Praveen Kumar Potsangbam, learned counsel, would contend that in the light of the law laid down by the Supreme Court in K.A. Najeeb (supra), which was followed thereafter, the mandate of the proviso to Section 43D(5) of the Act of 1967 need not be taken into consideration by this Court. However, Mr. Kh. Samarjit, learned Special PP, would argue otherwise. He would contend that once the statute postulates a procedure to be followed, it is not open to even the High Court to refuse to abide thereby. He would assert that this Court necessarily has to examine whether the accusation made against the appellant is prima facie true. He would rely on case law in this regard.

24. In State (NCT of Delhi) vs. Narender (2014) 13 SCC 100], the Supreme Court was considering Section 61 of the Delhi Excise Act, 2009. This provision stated to the effect that whenever any intoxicant etc., used in committing any offence is seized or detained, no Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, have jurisdiction to make any order with regard to such property. The Supreme Court held to the effect that there is no escape from the conclusion that the Magistrate or for that matter, the High Court, while dealing with the case of seizure of a vehicle under the said enactment has no power to pass an order dealing with the interim custody of the vehicle or its release.

25. In State of Karnataka vs. K.A. Kunchindammed (2002) 9 SCC 90], the Supreme Court was dealing with the Karnataka Forests Act and the powers of seizure, confiscation and forfeiture incorporated therein. Noting that the position was made clear by a non obstante clause, giving overriding effect to the provisions of that Act over other statutes and laws, it was held that the said statutory provisions made it clear that the Magistrate and the Sessions Judge had no power to grant interim custody/release of the seized forest produce and it is only the authorized officer who is vested with such power.

26. Regard may also be had to the recent judgment of the Supreme Court in Saregama India Limited vs. Next Radio Limited and others (2022) 1 SCC 701. Therein, the Supreme Court was dealing with interpretation of the Copyright Rules, 2013. The argument before the Supreme Court was that the interim order of the High Court had the effect of rewriting the Rules. In this context, the Supreme Court observed thus:

'The court is entrusted by the Constitution of the power of judicial review. In the discharge of its mandate, the court may evaluate the validity of a legislation or rules made under it. .... However, the court in the exercise of judicial review cannot supplant the terms of the provision through judicial interpretation by re-writing statutory language. Draftsmanship is a function entrusted to the legislature. Craftsmanship on the judicial side cannot transgress into the legislative domain by re-writing the words of a statute. For then, the judicial craft enters the forbidden domain of the legislative draft.'

27. We are therefore not persuaded to agree with Mr. Praveen Kumar Potsangbam, learned counsel, that the proviso to Section 43D(5) of the Act of 1967 need not be considered at all. Once the statute prescribes a particular procedure, Courts of law are bound to abide by such procedure and cannot ordinarily deviate from it. It may be noted that in K.A. Najeeb (supra), the Supreme Court did not hold that the mandate of the proviso to Section 43D(5) of the Act of 1967 should be ignored but only that the effect thereof stood diluted if the right to speedy trial was violated in a given case and the accused had suffered lengthy incarceration without even being tried for the offence charged. In effect, rights under Part III of the Constitution were held to override statutory considerations. Ergo, the proviso has to be given due consideration and cannot be brushed aside altogether.

28. In the light of this legal backdrop, it may be noted the appellant has been charged with offences under Sections 18 and 20 of the Act of 1967, though initially, offences mentioned in the FIR were under Sections 16 and 20 thereof. Therefore, the more serious charge under Section 16 of the Act of 1967 has not been leveled against the appellant. Protected Witness-B is of no help to the NIA as he did not know the appellant and said nothing against him. So far as Protected Witness-A's testimony is concerned, the same may be of assistance to surmise that the appellant is a member of the proscribed organization. The other protected witnesses are yet to be examined before the learned Special Judge and it would not be safe for this Court to rely upon their statements recorded under Section 161 Cr.P.C. As already noted hereinabove, Protected Witness-A did not state before the learned Special Judge what he had said in his statement recorded under Section 164 Cr.P.C. No other independent material has been placed on record in proof of the appellant either being a member of the proscribed organization or of his conspiring to commit a terrorist act and more particularly, the ambush that took place on 04.06.2015. Even the statements of the other protected witnesses do not link him with the said ambush directly. Thus, prima-facie, there is insufficient material to draw a conclusion or believe that the accusations against the appellant are true. It is for the NIA to adduce sufficient evidence during the course of the trial to establish the charges levelled against him. The mandate of the proviso to Section 43D(5) of the Act of 1967 therefore tilts the balance in favour of the appellant.

29. Further, it may be noted that the appellant has been incarcerated for over six and a half years but the trial may not conclude any time soon. Though the trial is proceeding now, its progress has been adversely impacted by the Covid-19 pandemic and there is no guarantee as to how much more time it would take. As already noted supra, only a fourth of the listed witnesses have been examined till date and the time that would be taken to examine the rest of them cannot even be estimated. Though the offences charged against the appellant are serious, he is yet to be proved guilty of the same and in the meanwhile, he has spent sufficient jail-time, entitling him to grant of bail.

30. In this regard, reference may also be made to Seema Singh vs. Central Bureau of Investigation and another (2018) 16 SCC 10], wherein the Supreme Court was dealing with grant of bail in a case under Sections 302, 498-A and 120-B IPC. In that context, it was observed that even if the charged offence is a serious one, that by itself, cannot be a ground to deny the benefit of bail if there are other overwhelming circumstances justifying its grant.

Earlier, in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40], the Supreme Court observed that the object of bail is neither punitive nor preventive and deprivation of liberty must be considered a punishment unless it is required to ensure that the accused would stand trial when called upon. It was further observed that detention in custody, pending completion of the trial, could be cause for great hardship. It was pointed out that imprisonment before conviction has a substantial punitive content and it would be improper for a Court to refuse bail as a mark of disapproval of former conduct, whether the accused has been convicted for it or not, or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. Seriousness of the charges, per the Supreme Court, is one of the relevant factors while considering bail applications but that is not the only test as the other factor that requires to be taken note of is the punishment for the offence. The Supreme Court pointed out that the nature of the charges may be relevant but at the same time, punishment to which a party may be liable, if convicted, also bears upon the issue. This case related to economic offences.

31. That being said, given the serious nature of the charges leveled against the appellant, this Court is of the opinion that stringent conditions would have to be imposed while granting him bail. Be it noted that the learned Special Judge voiced the apprehension that there is a high likelihood of his absconding if granted bail. Keeping that aspect in mind, this Court would proceed to impose suitable terms.

The appeal is accordingly allowed setting aside the order dated 12.10.2020 passed by the learned Special Judge (NIA), Manipur, in Cril. Misc. (B) Case No. 10 of 2020, and directing the release of the appellant on bail pending trial in Special Trial (NIA) Case No. 1 of 2016 on the file of the learned Special Judge (NIA), Manipur, subject to the following conditions:

(i) The appellant shall furnish a personal bond for a sum of ` 2,00,000/- along with 2 sureties for a like sum each to the satisfaction of the learned Special Judge (NIA), Manipur. The appellant shall also furnish immovable property security to the satisfaction of the learned Special Judge (NIA), Manipur.

(ii) The appellant shall deposit his passport, if he possesses one, before the learned Special Judge (NIA), Manipur, and shall not leave the State of Manipur without the permission of the learned Special Judge (NIA), Manipur.

(iii) The appellant shall report before the Deputy Superintendent of Police, National Investigation Agency, Imphal Branch Office at Quarter No. G-1, Lamphel Officers Colony, Lamphelpat, P.O. & P.S. Lamphel, Imphal West District, Manipur, on every Saturday between 9:00 am - 10:00 am and get his attendance duly recorded.

Violation of any of the aforestated conditions would automatically result in cancellation of this bail order and it would be open to the NIA to immediately arrest the appellant again.

The two sealed covers, containing the statements of the protected witnesses recorded under Sections 161 and 164 Cr.P.C., shall be handed over to Mr. Kh. Samarjit, learned Special PP, NIA, by the Registrar (Judicial) of this Court under proper acknowledgement.

A copy of this order shall be supplied online/through WhatsApp to both the learned counsel.