THE GAUHATI HIGH COURT AT GUWAHATI (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Kohima Bench CRAPL No. 05/2022. National Investigation Agency (NIA), Ministry of Home Affairs, Government of India, Imphal, Manipur. …… Appellant. -Versus- Atoshe Sema (A-8), S/o Zuhusa Sema, R/o Alaphu Village, Zunheboto, Nagaland. …… Respondent. BEFORE HON’BLE MR. JUSTICE ROBIN PHUKAN HON’BLE MRS. JUSTICE YARENJUNGLA LONGKUMER Advocate for the appellant :- Mr. R.K. Devchoudhury. Advocate for the respondent :- Mr. Pakinrichapbo. Date of Hearing :- 31.08.2026. Date on which judgment is reserved :- 31.08.2026. Date of pronouncement of judgment :- 17.09.2026. Whether the pronouncement is of the operative part of the judgment? :- N/A Whether the full judgment has been pronounced? :- Yes GAHC020004272022 2026:GAU-NL:471 JUDGEMENT & ORDER (CAV) (R.Phukan,J.) Heard Mr. R.K. Devchoudhury, learned Senior Counsel cum Deputy Solicitor General of India, appearing through the video conference for the appellant and Mr. Pakinrichapbo, learned counsel for the respondent. 2. In this appeal, under Section 21(4) of the National Investigation Agency Act, 2008 (NIA Act hereinafter), the appellant has challenged the order, dated 22.06.2022, passed in I.A. (Bail) No. 236/2021, by the learned Special Court, NIA, Dimapur (special court hereinafter). 3. It is to be noted here that vide impugned order, dated 22.06.2022, the learned special court had granted bail to the respondent herein, namely, Shri Atoshe Sema (A-8), who was languishing in jail hazot in connection with NIA Case RC-04/2015/NIA- DLI. Submissions of learned counsel for the appellant:- 4. Mr. Devchoudhury, learned Deputy Solicitor General of India, submits that an incident of shooting took place against the personnel of Assam Rifles, on 26.03.2015, near Indira Gandhi Stadium, Kohima, by the members of National Socialist Council of Nagaland (Khaplang) (NSCN(K) hereinafter), to mark the abrogation of longstanding cease fire between NSCN(K) and Government of India. He further submits that during the ongoing ceasefire between NSCN(K) and Government of India, which was supposed to expire on 27.04.2015, the NSCN(K) leadership unilaterally decided in the month of March, 2015, to break off from the ceasefire and also directed their cadres to carry out their said attack to show that they had abrogated the cease fire pact. 4.1. Mr. Devchoudhury further submits that after the said attack, one FIR was registered, at North Kohima Police Station, on 26.03.2015, being FIR No. 0029/2015, under Sections 307 & 326 of the IPC, read with Section 25(1B) of the Arms Act, on the basis of a written complaint lodged by Keysisenyil Solo, ASl of Kohima North Police Station. He further submits that pursuant to an order of the Ministry of Home Affairs, Internal Security - I Division, North Block, New Delhi, being No. 11011/21/2015-IS.IV, dated 03.04.2015, the NIA had re-registered the case as NIA FIR No. RC-04/2015/NIA/DLI, dated 18.05.2015, and taken over the investigation. Thereafter, three accused persons, namely, Ranjit Thapa @ Karan (A-1); Khekhao Rochil (A-3); and Kisheto Ayem (A-4); were arrested, under Sections 120(B)/302/307/326 of the IPC, read with Sections 16/18/20/23 of the Unlawful Activities Prevention Act (UAP Act hereinafter), read with Sections 4 & 5 of the Explosive Substance Act and read with Section 25(1)(B) of the Arms Act and laid charge-sheet on 23.11.2015, against them. 4.2. Thereafter, the NIA had continued its further investigation and found involvement of the present respondent (A-8); under Sections 120(B)/302/307/326 of the IPC, read with Sections 16/18/20 of the UAP Act. Naska I Kinni (A-6); under Sections 120(B)/302/307/326 the IPC, read with Sections 16/18/20/23 of the UAP Act and under Section 25(IB) Arms Act and Tapitu@ Tapi (A-13), under Sections 120(B)IPC, read with Sections 18/20 of the UAP Act, and a supplementary charge- sheet was submitted against them, under the said sections of law. Page 4 of 12 4.3. Thereafter, the learned special court had taken cognizance of the offence and proceeded with the trial and pending trial, the respondent herein (A-8), who was arrested from Bangalore, on 25.12.2015, had filed one application, 23.09.2021, before the learned Special Court, under Section 439 of the CrPC, read with Section 43D of the UAP Act, for granting bail and the same was registered as I.A. (Bail) No. 236/2021. The NIA (appellant herein) had filed an objection in the said bail application. But, the learned Special Court, without considering the objection of the NIA, vide impugned order dated 22.06.2022, had granted bail to the respondent herein (A-8) imposing some conditions. And being aggrieved, the NIA has approached this Court by challenging the said impugned order. 4.4. Mr. Devchoudhury further submits that NSCN(K) is an outlawed banned organization of India and the said organization is listed in the Schedule of NIA Act and that the learned special court, without considering the proviso to Section 43D(5) of the UAP Act, had granted bail to the respondent herein. 4.5. Mr. Devchoudhury has pointed it out that the learned special court had failed to consider the prima-facie material collected against the Atoshe Sema (A-8) (respondent herein). He further submits that the learned Special Court, considering the ratio laid down by Hon’ble Supreme Court, in the case of Union of India vs. K.A. Najeeb, reported in (2021) 3 SCC 713, had granted bail to the respondent herein. However, he submits the ratio laid down in the case of K.A. Nazeeb(supra) has been explained subsequently in the cases of Gulfisha Fatima vs. State (Government of NCT of Delhi), reported in 2026 SCC OnLine SC 10, and Gurwinder Singh vs. State of Punjab and Another, reported in (2024) 5 SCC 403, and in Union of India vs. Barkatullah etc. reported in 2024 SCC Online SC 1019. But, the learned Special Court has blissfully ignored the same. 4.6. Mr. Devchoudhury also submits that the offences are serious in nature and as the learned special court had ignored the proviso to Section 43D(5) of the UAP Act, the impugned order, dated 22.06.2022, fails to withstand the legal scrutiny and as such, the same has to be interfered with and the accused may be directed to surrender. 5. However, to a pointed query of this Court, as to whether after being released on bail, the respondent herein (A-8) had violated any conditions of bail, Mr. Devchoudhury submits that he has no such instructions. To another query of this Court, he submits that the accused was languishing in the jail hazot, before releasing on bail, for 6 years and 5 months and out of 70 witnesses, named in the charge- sheet, only 5 witnesses had been examined till the date when bail was granted and till date only 22 witnesses have been examined so far. 6. Per-contra, Mr. Pakinrichapbo, learned counsel for the respondent, has supported the impugned order and he submits that there is nothing on record to suggest violation of any of the bail condition by the respondent. He further submits that the respondent has been regularly appearing before the learned Special Court and facing trial. 6.1. Mr. Pakinrichapbo further submits that the respondent was arrested and also charged only on the basis of the statement of the co- accused. He also submits that the learned Special Court had considered the decision of Hon’ble Supreme Court in the case of K.A. Najeeb (supra) and the ratio laid down in the said case has subsequently been re-affirmed by Hon’ble Supreme Court in the case of Syed Iftikhar Andrabi vs. National Investigation Agency, Jammu, arising out of SLP (Crl.) No. 1090/2026. In the said decision, at paragraph No. 27.2., Hon’ble Supreme Court held that as Gurwinder Singh (supra) case refuses to be bound by the case of K.A. Najeeb (supra), is difficult to be followed as a precedent being rendered by a bench of lesser strength and judicial discipline mandates that such binding precedent must either be followed for or, in case of doubt, be referred to a larger bench, a smaller bench cannot dilute, circumvent or disregard the ratio of a larger bench. And in that view of the matter, according to Mr. Parkinrichabo, the submission of Mr. Devchoudhury, learned Deputy Solicitor General of India, cannot be accepted. 6.2. Mr. Pakinrichapbo also submits that the learned Special Court had also considered the length of detention of the accused in jail hazot while granting bail. He further submits that the occurrence took place on 26.03.2015 and the respondent herein (A-8), was arrested on 25.12.2015 and he was granted bail in the year 2022, vide impugned order, dated 22.06.2022 only. He also submits that out of 49 cited witnesses in the charge-sheet, the prosecution side has been able to examine only 05 witnesses till the time of granting bail and the learned Special Court had also considered the fact that there is no likelihood of immediate conclusion of trial and under such circumstances, learned special judge has granted bail. 6.3. Mr. Pakinrichapbo further submits that the appellant NIA has failed to demonstrate any justifiable ground to cancel the bail. And therefore, he has contended to dismiss the petition. Consideration of this court :- 7. Having heard the submissions of learned counsel for both the parties, this Court has carefully gone through the memo of appeal as well as the grounds mentioned therein and also gone through the impugned order, passed by the learned special court, dated 22.06.2022, in I.A. (Bail) No. 236/2021 and also gone through the decisions relied upon by learned counsel for both the parties. 8. It is well settled that the appellate power of the High Court under Section 21(4) is wider than ordinary cancellation power of bail under Section 439(2), of the CrPC. The High Court can examine the merits of the Special Court’s order and cancel bail if, on the material available at the time of the original order, the accused did not deserve bail even without there being any abuse of liberty. This flows from the statutory appellate jurisdiction, which allows the High Court to correct an erroneous grant of bail on facts and law. 9. In the instant case, having gone through the impugned order, passed by the learned special court, dated 22.06.2022, in I.A. (Bail) No. 236/2021, we find that the learned special court, in paragraph No. 5, of the order held as under:- “5. Thus, considering the fact that the accused Atoshe Sema is in custody for more than six years and five months and with only five out of the 49 proposed witnesses examined so far, there is no likelihood of the trial being completed within a reasonable time and with the facts of the instant case corresponding to the facts of the case laws above discussed, I am inclined to enlarge the accused on bail.” 9.1. It also appears that before arriving at the above finding, the learned Special Court had discussed the background facts of the case and also taken note of the ratio laid down in K.A. Najeeb (supra), specially with reference to Section 43D(5) of the UAP Act. And only thereafter, the learned special court had directed to release the respondent herein on bail on furnishing a bond of cash Rs. 1,00,000/- with two local sureties of the like amount on the following conditions:- (i) The accused shall not leave the jurisdiction of this court without the prior permission of the Court; (ii) The accused shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the Court or to any other authority; and (iii) The accused shall remain present before the court on the dates fixed for hearing of the case. 9.2. It also appears that the learned special court had considered the ratio laid down by Hon’ble Supreme Court in the case of K.A. Najeeb (supra) and also considered the provision of Section 43D(5) of the ULAP Act. 10. It is not in dispute that the respondent herein was behind the bars for 6 years and 5 months and indisputably, out of 70 cited witnesses in the charge sheet, only 05 witnesses were examined till the time of releasing the respondent herein on bail, vide impugned order, dated 22.06.2022. Further, Mr. Devchoudhury, learned Deputy Solicitor General of India, has apprised this Court that he has no information regarding violation of any conditions of bail so imposed by the learned Special Court while granting bail to the respondent herein. 10.1. It is, however, the categorical contention of Mr. Pakinrichapbo, learned counsel for the respondent, that there is no instance of any violation of any condition of bail by the respondent herein and nothing could be demonstrated by the appellant NIA in that regard. This categorical submission of Mr. Pakinrichapbo, remained uncontroverd. 11. This Court has carefully gone through the provisions of Section 43D(5) of the ULAP Act. And it appears that the learned special court had considered the same in the light of the proposition laid down in the case of K.A. Najeeb (supra) and in the said case, Hon’ble Supreme Court has held that –“Liberty under Part III of the Constitution includes not only due process and fairness, but also access to justice and a speedy trial. Under-trials cannot be detained indefinitely pending trial. Once it is clear that timely trial is not possible and the accused is already suffered significant incarceration Courts are ordinarily obligated to enlarge them on bail. 11.1. It has also been held that Section 43D(5) of the UAP Ac, which restricts bail if the Court is of the opinion that accusations are prima- facie true, is a statutory restriction that does not per se prevent Constitutional Court from granting bail on the ground of violation of right guaranteed by Article 21 of the Constitution of India. At the commencement of proceedings, Court should give weight to legislative policy against bail in such cases, but the rigors of the provision melt down where there is no likelihood of the trial being concluded within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. It has also been held that the provisions of Section 43D(5) of the ULAP Act is not strict like Section 37 of the Narcotic Drugs and Psychotropic Substances Act and it does not require a finding that the accused is prima-facie not guilty or is unlikely to commit another offence while on bail. 11.2. Further, the decisions relied upon by Mr. Devchoudhury, learned Deputy Solicitor General of India, to impress upon this Court that the learned special court had blissfully ignored the same, yet his submission left this Court unimpressed as the said decisions were subsequent to the impugned order, dated 22.06.2022, and as such the question of ignoring the same does not arise at all. 11.3. Further in view of the decision of Syed Iftikhar Andrabi (Supra), the decision of K.A. Najeeb (supra), which is a decision of three Judges Bench, is still holding the field and as such, no fault can be found with the impugned order, so passed by the learned special court. 12. We have carefully considered the submissions of learned counsel for both the parties and also the facts and circumstances on the record and also the reasons assigned by the learned special court, while granting bail to the respondent herein (A-8). And we find that the impugned order, dated 22.06.2022, cannot be said to be illegal or perverse requiring any interference of this Court, mainly because of following reasons:- (i) When the bail was granted, the respondent herein was behind the bars for 6 years and 5 months. Page 11 of 12 (ii) Out of 70 cited witnesses in the charge-sheet, only 5 witnesses were examined till granting the bail, vide impugned order dated 22.06.2022. (iii) Even till date, after elapse of more than a decade, the appellant NIA has been able to examine only 22 witnesses, out of 70 cited witnesses in the charge-sheet. (iv) The pace, at which the trial is going on, the learned Special Court will take another decade to complete the same. (v) The respondent herein (A-8) has not violated any condition of bail, as mentioned in the impugned order dated 22.06.2022. (vi) The respondent herein (A-8) has been regularly appearing before the learned Special Court. (vii) The learned Special Court had considered the proviso to Section 43D(5) of the UAP Act in the light of the decision of Hon’ble Supreme Court in the case of K.A. Najeeb (supra), which has still been holding the field and in its own decision in Syed Iftikhar Andrabi (Supra), the decision in the case of Gurinder Singh (supra) is difficult to follow as a precedent. (viii) Over and above, while the impugned order was passed on 22.06.2022, none of the decisions in Gurinder Singh (supra), Gulfisha Fatima (supra) and Barkatullah (supra), were before the learned Special Court except however, the decision of K.A. Najeeb (supra), and the same was relied upon by the learned Special Court. Page 12 of 12 13. Under the given factual and legal matrix, we find the appeal devoid of merit and accordingly the same stands dismissed, leaving the parties to bear their own costs. JUDGE JUDGE Comparing Assistant