Page No.# 1/6 GAHC010128422025 2025:GAU-AS:11790 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1986/2025 ABBAS ALI AND ANR SON OF SUKUMUDDIN , RESIDENT OF PAKHIURA, P.S. PANCHARATNA DIST. GOALPARA, PIN-783101 2: SAYEED AHMED SON OF SAMSUL HOQUE R/O VILL- BHANDARA PT. 3 P.S. MANIKPUR DIST. BONGAIGAON ASSAM PIN-78339 VERSUS THE STATE OF ASSAM REPRESENTED BY THE PP, ASSAM Advocate for the Petitioner : MR Z ALAM, MR. J ISLAM,MS. S NAZNEEN Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 01.09.2025: Heard Mr. Z. Alam, learned counsel for the petitioners. Also Page No.# 2/6 heard Mr. K. Baishya, learned Addl. P.P. for the State. 2) By filing this application under section 483 of the BNSS, 2023, Abbas Ali and Sayeed Ahmed, who are in custody since their arrest on 27.07.2022 and 22.04.2022 respectively, in connection with Jogighopa P.S. Case No. 56/2022, under Sections 121/ 121A/120B/124A IPC read with Sections 17/18/18B/19/20 of the Unlawful Activities (Prevention) Act, 1967, which is being tried as Sessions Case No. 111/2023, before the learned Sessions Judge, Bongaigaon, and thus, in custody for 1,132 days (3 years, 1 month, 5 days) and 1,228 days (3 years, 4 months, 10 days) respectively, as on 01.09.2025, are praying for bail. 3) The learned counsel for the petitioners has submitted that several co-accused are on bail. It was also submitted that till date effective trial has not begun and out of 25 (twenty five) listed prosecution witnesses, only 8 (eight) witnesses have been examined so far, who have not deposed anything adverse against the petitioners. Therefore, it was submitted that there is no chance of an early culmination of trial. 4) The learned counsel for the petitioners has submitted that the Supreme Court of India had deprecated the long incarceration of under-trial prisoners for a long time and moreover, in many cases, the co-ordinate Bench of this Court has also released under-trial prisoners considering the length of their judicial custody. 5) It has been submitted that the petitioners had never participated in any meetings by any member of the Ansarullah Bangla Team (hereinafter referred to as ‘ABT’ for brevity) and were not involved in any jehadi activity. It has also been submitted that no incriminating material have been seized from Page No.# 3/6 the petitioners. 6) It was submitted that the petitioners have movable and immovable properties and are ready and willing to abide by any stringent terms and conditions of bail. 7) The scanned copy of the relevant pages of the TCR was called for, which was received, which contains scanned copy of evidence of PW nos. 1 to 6. The learned counsel for the petitioners had submitted photocopy of certified copy of evidence of PW-7 and PW-8. 8) The learned APP has opposed the prayer for bail on the ground that there was sufficient evidence available in the Trial Court Record (TCR for short) to prima facie show that the petitioners were one of “ansars” i.e. sleeper cell of a Bangladesh based terrorist group, who could be activated at a short notice and the said terrorist group could commit major terrorist acts in the State. 9) As per the provisions of section 43-D(5) of the UA(P) Act, 1967, in case of denying bail, a duty is cast on the Court to record its satisfaction there are reasonable grounds for believing that the accusation against both the petitioners are prima facie true. For that purpose the TCR has been examined with that purpose only. 10) It is too well settled that in course of deciding bail application, the Courts are not required to examine the evidence to see if it will lead to conviction. 11) The TCR reveals materials showing the nature of investigation and involvement of the petitioners in the activities of ABT. The TCR discloses materials to show that jehadi materials are stored in his mobile including riot Page No.# 4/6 videos. The TCR prima facie discloses materials on which the petitioner no. 2 is suspected to have given shelter to a ABT operative, who is suspected to be involved in the activities of ABT in form of providing logistic support to its members, including ones who had clandestinely and illegally entered into India (Assam) from Bangladesh. The investigation discloses that the said ABT is a jehadi organisation having affiliation to Al Quaida in Indian Sub-Continent and the petitioners have connections with persons in Bangladesh and is suspected to be involved in the cause of ABT. 12) Therefore, the Court is now required to examine if due to length of 1,132 days (3 years, 1 month, 5 days) and 1,228 days (3 years, 4 months, 10 days) in custody will entitle the petitioners to bail. 13) It would also be relevant to quote herein below the provision of Section 479 of BNSS, 2023, which is nearly para material to section 436A of the CrPC (since repealed):- 479. Maximum period for which undertrial prisoner can be detained.- (1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail: Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one- third of the maximum period of imprisonment specified for such offence under that law: Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond: Provided also that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of Page No.# 5/6 imprisonment provided for the said offence under that law. Explanation.— In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded. (2) Notwithstanding anything in sub-section (i), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court. (3) The Superintendent of jail, where the accused person is detained, on completion of one-half or one-third of the period mentioned in sub-section (i), as the case may be, shall forthwith make an application in writing to the Court to proceed under sub-section (1) for the release of such person on bail.” 14) The TCR reveals that during investigation, at one point of time, the Investigating Officer had informed the Court that as the case had international jehadi and terrorist links, more time was required to complete the investigation. The charge-sheet against six accused persons including the petitioners, bearing No. 254/22 dated 17.10.2022, was submitted before the learned Sessions Judge on 19.10.2022. Moreover, vide order dated 16.08.2023, the learned Trial Court had split up the case against an absconding accused, namely, Hamidul Islam. 15) Therefore, it cannot be held that the accused persons did not contribute to the delay in commencement of trial. Therefore, in the light of Explanation (1) to Section 479 BNSS, 2023, the period upto 16.08.2023, has become liable to be excluded. Hence, it cannot be held there has been an inordinate delay in commencement of trial. 16) The Court is inclined record its prima facie satisfaction that there are reasonable grounds for believing that the accusation against the petitioners is prima facie true. It is clarified that the aforesaid observation is merely a prima facie view and therefore, this observation shall not prejudice the petitioners Page No.# 6/6 during trial. 17) In the case of Satender Kumar Antil (supra), it has been held as follows:- “Where undertrial accused is charged with an offence(s) under the Act punishable with minimum imprisonment of ten years and a minimum fine of Rupees one lakh, such an under-trial shall be released on bail if he has been in jail for not less than five years provided he furnishes bail in the sum of Rupees one lakh with two sureties for like amount.” 18) In the present case, the petitioners are charged of committing offence punishable, amongst others, under Sections 121/ 121A/120B/124A IPC read with Sections 17/ 18/18B/19/20 of the Unlawful Activities (Prevention) Act, 1967, which carries sentence for a period which may extend to life. Therefore, following the ratio laid down in the case of Satender Kumar Antil (supra), as well as the provision of Section 479 of the BNSS, 2023, though the petitioners are in judicial custody for 1,132 days (3 years, 1 month, 5 days) and 1,228 days (3 years, 4 months, 10 days), respectively, they have not become entitled to be released on bail, notwithstanding that some other co-accused might have been released on bail at this stage. 19) It is reiterated that nothing contained in this order shall prejudice the petitioners during trial. JUDGE Comparing Assistant