Abdul Samad vs National Investigation Agency

Anu Malhotra, J

Crl.M.C. No. 3813/2019 was filed by the petitioner seeking the setting aside of the impugned order dated 17.7.2019 of the learned Special Judge

(NIA), Patiala House Courts, New Delhi in RC-20/2017/NIA/DLI apart from seeking grant of bail to the applicant in the said case. Vide the order

impugned in the petition dated 17.7.2019, the joint application moved for release/discharge in relation to the applicant accused/approver Abdul Samad

and Mahfooz Alam were taken up and in as much as the counsel for the applicant herein i.e., the approver, Abdul Samad vide an endorsement made

on the application withdrew the application, the said application seeking the release/discharge from custody in respect of the applicant/approver Abdul

Samad was dismissed as withdrawn.

The Court is presently not considering the merits or otherwise of the said impugned order dated 17.7.2019 and the present adjudication is in relation

to Crl.M.(B) No. 7673/2020.

Vide the application Crl.M.(B) No. 7673/2020, the applicant has sought the grant of interim bail during pendency of the petition in NIA Case No.

RC-20/2017/NIA/DLI or for such period as the Court may deems fit. It has been submitted through this application by the petitioner/applicant that he

seeks release on interim bail on account of the COVID-19 pandemic prevalent in the country and that at the time of submission of the said application

dated 3.7.2020, he had spent 29 months in jail since his arrest and around 26 months in jail since the date of his pardon, i.e., 16.5.2018. It has been

submitted by the petitioner that the chargesheet mentions 175 witnesses and around 55 documents have been sent to the FSL and that the trial has not

even started and is likely to take a substantial period of time.

It has been submitted through the application, inter alia, that as on date he being a pardoned person, there is no case pending against him and that he

is in custody only by reason of the bar under Section 306 (4)(b) of the Cr.P.C., 1973. He inter alia submits through his application itself that the threat

to his life and liberty are real. The applicant, has nevertheless, despite the said submission of threat to his life and liberty being real, placed reliance on

the verdict of this Court in Bangaru Laxman V. CBI, ILR (2012) II Delhi 102; wherein it has been observed to the effect:

Thus, the decisions of the Hon'ble Supreme Court and the Full Bench of this Court clearly hold that though it is mandatory to keep the

person in custody unless on bail, however, the Court is empowered, in the interest of justice, to avoid abuse of process of law and for the

right to life and liberty of an approver to grant bail, if not granted earlier. The pardon does not get vitiated on this count.

In the present case firstly in the interest of justice and the fundamental right to life and liberty of Respondent No.2 when his statement

has already been recorded before the learned Metropolitan Magistrate, no useful purpose will be served to send him in custody now.

Further Respondent No.2 has already been granted an order of anticipatory bail, which enures to his benefit till conclusion of the trial as

held in Siddharam Satingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694. In view of the order of anticipatory bail

directing sending Respondent No.2 custody is not possible as the moment he is arrested he has to be released on bail as directed by the

Court while granting anticipatory bail. The evidence of Respondent No.2 and all other prosecution witnesses has been recorded. The case

does not fall in the ambit of Section 308 Cr.P.C. Respondent No.2 though not on bail technically, however, even if this Court directs him to

be arrested, would have to be released on bail in view of the anticipatory bail order. I find no reason to interfere with the impugned

order."",

The applicant has thus submitted that it is his fundamental right to life and liberty to be released in as much as his statement has been recorded under

Section 164 of the Cr.P.C. 1973 before the Metropolitan Magistrate and no useful purpose would be served by sending him to custody.

Inter alia, the applicant has submitted that the respondent No.2 is on anticipatory bail and his statement and that of other prosecution witnesses had

been record and that the present matter does not fall within the ambit of Section 308 of the Cr.P.C., 1973. The applicant further submits that his

continuous incarceration would cause a risk to his life. During the course of submissions that were made on behalf of the petitioner, it was also

submitted that Section 306(4)(b) of the Cr.P.C. 1973, is a provision which enables a Court to detain a person in jail indefinitely cannot be treated as

reasonable nor in accordance with the Constitutional provisions and is an anti-thesis to criminal jurisprudence.

Inter alia, the applicant submits that use of the word ‘shall’ under Section 306(4)(b) of the Cr.P.C., 1973, in its ordinary import is

‘obligatory’ but there are many situations where the Courts have construed the word ‘shall’ to mean ‘may’.

Reliance was also sought to be placed on behalf of the petitioner on the verdict of this Court in Prem Chand v. State; 1985 Crl.LJ 1534 to submit to

the effect that since the approver’s evidence had been recorded, he could be released on bail and no useful purpose would be served by his

further detention in jail and that the administration of justice was not likely to be affected on his release with specific reliance on the observations in

paragraphs 8 to 18 of the verdict of this Court in Prem Chand v. State; 1985 Crl.LJ 1534 to the effect:

It is the provisions of Section 306(4)(b) providing that every person accepting a tender of pardon, shall unless he is already on bail, be

detained in custody until the termination of the trial which have come up for interpretation. Its constitutional validity has also been

challenged.

So far as the language used in Section 306(4)(b), it is quite explicit that the person accepting tender of pardon unless already on bail,

has to be detained in custody till the end of the trial. The word used is ""shall"", and there is almost a unanimity of opinion of different High

Courts that the legislature has not envisaged grant of bail to a person during the trial after he has accepted pardon. The underlying object

of requiring the approver to remain in custody until the termination of trial is not to punish him for having agreed to give evidence for the

State, but to protect him from the wrath of the confederates he has chosen to expose, and secondly to prevent him from the temptation of

saving his erstwhile friends and companions, who may be inclined to assert their influences, by resiling from the terms of grant of pardon.

In fact, the Madras High Court in the case Karuppa Servai v. Kundaru, has observed that this provision is based on very salutary

principles of public policy and public interest. The approver's position was considered to be like a sealed will in a will forgery case, and he

should not be allowed to let off on bail. The Rajasthan High Court has in Ayodhya Singh v. State 1973 Cri U 768 and Lallu v. State 1979

RajLW 465 taken the view that the provisions in this regard are mandatory, and that Court cannot go behind the wisdom of the legislature*

as expressly laid down under Section 306, Cr. P.C. In the former case the * circumstance that the disposal of the case was likely to take a

long period of time as"" the prosecution had cited 174 witnesses, was not considered as valid ground for bail when the law prohibits any

such release till the termination of the trial. In Mukesh Ramchandra Reddy, 1958 Cri U 343, the Andhra Pradesh High Court has as well

interpreted the word ""shall"" in the said provisions as primarily obligatory and casting a duty on the Court to detain an accused to whom

pardon has been tendered, in custody until the termination of the trial. The Punjab High Court in A. L. Mehra v. State, declined to draw an

analogy from the power available with the Court to grant bail to accused at any stage of the trial, and it was observed that it was not within

the competency of the Court to admit an approver to bail when the law declares in unambiguous language that the approver shall not be

released until the decision of the case. These special provisions were treated to override the general provisions entitling the Court to grant

bail.

There is, therefore, little doubt that so far as the plain reading of Section 306(4)(b), Cr. P.C., the same leaves no manner of doubt that a

person accepting a tender of pardon has to be kept in custody till the trial is over unless he was on bail at the time of the grant of pardon.

This has been almost the uniform view of judicial decisions, and the use of the word ""shall"" has been interpreted to leave no flexibility in

this regard. The general power of grant of bail available to the Courts under the Code is thus circumscribed by the special provisions. In

fact, an accused loses his character as such when pardon is granted to him. He is, of course, an accomplice. However, the character of

accused can be again attributed to him if his case falls under Section 308, Cr. P. C. That is when the Public Prosecutor certifies that he has

by willfully concealing anything essential, or by giving false evidence has not complied with the, condition on which the tender was made.

Rather even at this stage he is entitled to show that he has, in fact, complied with the condition upon which such tender was made. If he

succeeds in doing so, that is the end of the matter. If however, the Court is satisfied with the certification by the Public Prosecutor in spite of

the submission by the approver, then his trial starts and he acquires the character of accused. It is as such that in Sub-section (4) of Section

308 the word used qua him for the first time is ""accused"".

11-12. The crucial questions raised from the side of the petitioner are whether the provisions of Section 306(4)(b) in all their rigidity can be

treated as constitutionally valid, and further whether in the exercise of inherent powers under Section 482, Cr. P. C., the Court can release

an approver during the course of trial when it is in the ends of justice and his detention amounts to abuse of process of Court.

In the case State of Karnataka v. L. Muniswamyit has been observed, as under (at p. 1128 of Cri LJ):

The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the

legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the

provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible

to appreciate the width and contours of that salient jurisdiction.

13A. The Supreme Court has further in the case Maneka Gandhi v. Union of India observed that it is not a valid argument to say that the

expression ""personal liberty"" in Article 21 must be so interpreted so as to avoid overlapping between that Article and Article 19(1). The

expression ""personal liberty"" in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal

liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article

19- It was further observed that if a law depriving a person of ""personal liberty"" and prescribing a procedure for that purpose within the

meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in

a given situation, ex hypothesi it must also be liable to be tested with reference to Article 14. The principle of reasonableness, which legally

as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the

procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be ""right

and just and fair"" and not arbitrary, fanciful or oppressive, otherwise, it should be no procedure at all and the requirement of Article 21

would not be satisfied.

……

……

Section 482 of the Cr. P. C. is to the following effect:

Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to

give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

{The power available under this provision is notwithstanding anything else contained in the Code. In case the High Court is satisfied

that an order needs to be made to prevent abuse of the process of any Court, or otherwise to secure the ends of justice, the inherent powers

are available, and they are not limited or affected by anything else contained in the Code. We are not oblivious that these powers have not

to be-ordinarily invoked where -specific provisions are contained in the Code or specific prohibitions enacted. However, in cases where the

circumstances un-mitigating bring out that a grave injustice is being done, and an abuse of process of court is taking place, either as a

result of the acts of the accused taking place, either as a result of the acts of the accused or the unavoidable procedural delays in the

Courts, we are of the firm opinion that the inherent .powers should and need to be exercised. The approver's evidence in the present case

has already been recorded, and no useful purpose is being served in his detention. The administration of justice is not in any manner likely

to be affected by his release. There is no reason to suppose that the machinery of law would not be able to give protection to the petitioner

in case any adventurism is sought to be displayed by his confederates, or their supporters. The conduct of the petitioner in seeking his

release itself shows that he carries no apprehensions. It would not be, therefore, correct for the Court to still create such fears and profess

to provide him unsolicited protection by detaining him for indefinite period. Thus in the case of A. L. Mehra 1958 Cri U 413 (supra) the

Punjab High Court released the approver from confinement in exercise of inherent powers to prevent the abuse of the process of court,

finding that he had been in confinement for several months. Similarly the Madras High Court in the case of Karuppa Servai 1953 Cri U 45

(supra) laid emphasis on the detention of an approver till he has deposed at the trial, in the Sessions Court truly and fully to matters within

his knowledge.

We are further of the opinion that there is no rational basis for inflexible classification of approvers who are in detention, and those

who because of fortuitous circumstances happen to be on bail at the tune of grant of pardon. A person being granted bail and still not in

detention are not considered in law as incompatible. So far as allurement of release if allowed pardon, it is inherently there in any pardon.

As such too much of significance and rigidity need not be attached to time factor. Moreover, a witness, even though an accomplice need not

be detained for more than what is essential for procurement of or enabling him to give his evidence. His personal liberty can, therefore, be

curtailed, if at all, for beneficial ends of administration of justice, and once they are served, his further detention becomes irrelevant: His

detention till that earlier stage, may also be considered proper to avoid creation of the impression of too ready an approver to serve his

personal end of immediate or early let off even in cases where the involvement of the other accused in that crime may turn out to be

doubtful. The existence of the provision of detention thus may serve as a damper to opportunists who may be too keen to oblige the police,

and also prevent a possible abuse of this process as a short-cut by investigating agencies when they find no other evidence available or

dubiously seek to involve innocent persons.

Inter alia, the applicant submits that though the release of the approver on bail is expressly barred under Section 306(4)(b) of the Cr.P.C.,1973, the

Court Section 482 Cr.P.C. may pass any orders to meet the ends of justice. Reliance was thus sought to be placed on behalf of the petitioner on the

verdict of the High Court of Kerala in Shammi Firoz V. The National Investigation Agency; 2011 Crl.L.J.1529, wherein it was observed to the effect:

 ""72. Once an accused person is granted pardon he ceases to be an accused person and becomes a witness for the prosecution. Since an

approver is not a person accused of an offence, Sections 437 and 439 Cr.P.C. cannot be pressed into service by an approver for his

enlargement on bail. In such a contingency, notwithstanding the bar under Section 306(4)(b) Cr.P. C. it has been held in the decisions

relied on by the petitioner that the High Court can in a given case release the approver on bail by invoking the inherent power under

Section 482 Cr.P.C. Formerly, Courts were very rigid in enforcing the legislative mandate under Sec. 306(4)(b) corresponding to Sec.

337(3) of the old Code (See A.L.B.A. Nos. 6203 and 6215 of2010 :13 - Mehra v. State - MANU/PH/0021/1958 : AIR 1958 Punjab 72;

Bhawani Singh v. The State - MANU/MP/0010/1955 : AIR 1956 Bhopal 4; In re Pajerla Krishna Reddi - MANU/TN/O319/1952 : 1953

Crl.L.J. 50 (Madras); Haji AH Mohammed v. Emperor - AIR 1932 Sind 40; Dev Kishan v. State of Rajasthan - MANU/RH/0080/1983 : 1984

Crl. L.J. 1142 (Rajasthan). But after the fundamental right guaranteed under Article 21 of the Constitution of India has been laid on a

wider canvass through the epoch making judicial pronouncements of the Apex Court, Courts have diluted the rigour of Section 306(4)(b)

Cr.P.C. to make it ""in conformity with the rights under Article 21 of the Constitution of India. That explains the emerging view that despite

the embargo under Sec. 306(4)(b) Cr.P.C., the High Court may in a given ease release the approver on bail by calling into aid its inherent

power under Section 482 Cr.P.C.

Reliance was also placed on behalf of the petitioner on the verdict of the Hon’ble High Court of Kerala in Saidevan Thampi v. The State of

Kerala; (2013) 4 KLJ 611 with specific reliance on observations in paragraphs 75 to 77 thereof which read to the effect:

 ""75. As rightly pointed out by the learned Senior Counsel for the petitioners, once pardon is tendered to an accused, or a person

contemplated under Section 306 or Section 307 Cr.P.C., then he loses his character as an accused and adorns the status of a witness.

Except for the prohibition under Section 306(4)(b) Cr.P.C., it may not be possible to detain that person under the Code. Shri.O.V.

Radhakrishnan, learned Senior Counsel, seems to be justified in his submission that but for the bar under Section 306(4)(b) Cr.P.C., the

person concerned could not have been detained in custody. The further contention that it is not intended to curtail the liberty of the person,

but intended to provide protection in deserving cases and also to ensure that the accused person do not take undue advantage of the

position appears to be quite sound and reasonable. The submission of the learned Senior Counsel Shri.O.V.Radhakrishnan that it is not

always necessary in all cases that when a person is tendered pardon under Section 306 Cr.P.C., he should be detained without anything

more is not the intention of the legislature also seems to be correct. Only in cases where the situation demands or the court feels that it is

necessary to detain the personfor justifiable reasons, the provision can be invoked. That seems to be the proper way to understand the

provision. It must be remembered that as far as the reasons for detaining a person under Section 306(4)(b) Cr.P.C. are concerned, it is

equally applicable to a person to whom 'pardon is tendered under Section 307 Cr.P.C. also. So also, the same conditions apply to a person

to whom pardon is tendered under Section 306 Cr.P.C. and who is already on bail. The legislature must be credited with the knowledge of

these facts and in that context and under such circumstances the provision, namely. Section 306(4)(b) Cr.P.C. will have to be understood. If

a person who is already on bail could continue on bail when pardon is tendered to him under Section 306 or 307 Cr.P.C., then it defies

one's logic why a restriction as in the nature of Section 306(4)(b) Cr.P.C. should be imposed in the case of a person who is unfortunate to

be not on bail when pardon is tendered to him. An anomalous situation may arise if one is to simply accept the proposition that a person in

custody should continue to be in custody till the end of the trial adopting a strict interpretation of the provision. For example, in a case

there may be distinct incidents. It may so happen when some of the accused might have been granted bail and some might not have been

granted bail. It may also happen that even though an accused is granted bail, he is not able to execute the bond and therefore he has to

remain in custody. If in such a case, for one portion of the incident, a person is granted pardon and if he is already on bail, he can

continue to be on bail. If for another incident forming part of the same transaction, a person who is in custody is granted pardon, to say

that he should languish in custody till the end of the trial seems to be unjustified, unreasonable and arbitrary and against the notions of

justice.

The provision, namely. Section 306(4)(b) Cr.P.C. cannot be taken as one curtailing the liberty and freedom of a person, but should be

treated as an enabling and empowering provision which the courts concerned can take aid of in a case where circumstances warrant a

situation to detain a person who has been granted pardon in further custody if he is not already on bail. It is difficult to comprehend that

without anything more, the mere fact that the person who is tendered pardon who is not on bail should continue in custody for no justifiable

reason.

It is well settled by now that there is no universal principle to determine while construing a statute as to if it is directory or mandatory.

The burden is on the courts to ascertain the real intention of the provision and for that purpose, the statute has to be construed as a whole.

Several factors may have to be considered to determine the real character and nature of the Statute. There can be no doubt that the

absolute enactment must be literally obeyed and fulfilled. Normally, a statute is considered to be mandatory if it imposes conditions, and its

satisfaction is essential for the validity of the Act.

Reliance was also placed by the petitioner on the verdict of the Hon’ble High Court of Rajasthan in Noor Taki @ Mammu v. The State of

Rajasthan 1986 CriLJ 1488 with observations in paragraph 19 thereof which reads to the effect:

A perusal of the aforesaid cases coupled with that of many other cases, like that of Sunil Batra v. Delhi Administration: 1980 Cri LJ

1099 : (AIR 1980 SC 1579), and yet another case of Hussainara Khatoon reported in AIR 1979 SC 1360 : (1979 Cri LI 1036), we have no

hesitation in holding that detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will

amount to violation of Article 21 of the Constitution. Reasonable expeditious trial is warranted by the provisions of the Criminal Procedure

Code and in case this is not done and an approver is detained for a period which is longer than what can be considered to be reasonable in

the circumstances of each case, this Court has always power to declare his detention either illegal or enlarge him to bail while exercising its

inherent powers. Section 482. Cr.P.C, gives wide power to this Court in three circumstances. Firstly, where the jurisdiction is invoked to

give effect to an order of the Court. Secondly if there is an abuse of the process of the Court and thirdly, in order to secure the ends of

justice. There may be occasions where a case of approver may fall within latter two categories. For example in a case where there are large

number of witnesses a long period is taken in trial where irregularities and illegalities have been committed by the Court and a re-trial is

ordered and while doing so, the accused persons are released on bail, the release of the approver will be occasioned for securing the ends

of justice. Similarly, there may be cases that there may be an abuse of the process of the Court and the accused might be trying to delay the

proceedings by absconding one after another, the approver may approach this Court for seeking indulgence. But this too will depend upon

the facts and circumstances of each case. Broadly, the parameters may be given but no hard and fast rule can be laid down. For instance,

an approver, who has already been examined and has supported the prosecution version, and has also not violated the terms of pardon

coupled with the fact that no early end of the trial is visible, then he may be released by invoking the powers under Section 482, Cr.P.C.

Section 482, Cr.P.C. gives only power to the High Court. Sessions Judge cannot invoke the provisions of the same. High Court therefore in

suitable cases can examine the expediency of the release of an approver. We are not inclined to accept the contention of the learned Public

Prosecutor that since there is a specific bar under Section 306(4)(b), Cr.P.C., Section 482, Cr.P.C., should not be made applicable. Their

Lordships of the Supreme Court have said in limes without number, that there is nothing in the Code to fetter the powers of the High Court

under Section 482, Cr.P.C. Even if there is a bar in different provisions for^ the three purposes mentioned in Section 482, Cr.P.C., and one

glaring example quoted is that though Section 397 gives a bar for interference with interlocutory orders yet Section 482, Cr.P.C. has been

made applicable in exceptional cases. Second revision by the same petitioner is barred yet this Court in exceptional cases invokes the

provisions of Section 482, Cr.P.C. Therefore. Section 482, Cr.P.C. gives ample power to this Court. However, in exceptional cases to

enlarge the approver on bail, we answer the question that according to Section 306(4)(b), Cr.P.C. the approver should be detained in

custody till the termination of trial, if he is not already on bail, at the same time, in exceptional and reasonable cases the High Court has

power under Section 482, Cr.P.C., to enlarge him on bail or in case there are circumstances to suggest that his detention had been so much

prolonged, which would otherwise outlive the period of sentence, if convicted, his detention can be declared to be illegal, as violative of

Article 21 of the Constitution.

Reliance was also placed on behalf of the petitioner on the observations of the Hon’ble Supreme Court in Suresh Chandra Bahri V. State of

Bihar; 1995 Supp(I) SCC 80 in paragraph 34 thereof which reads to the effect:

As regards the contention that the trial was vitiated by reason of the approver Ram Sagar being released on bail contrary to the

provisions contained in clause (b) of sub-section (4) of Section 306 of the Code. It may be pointed out that Ram Sagar after he was granted

pardon by the learned Magistrate by his order dated 9-1-1985, was not granted bail either by the committing Magistrate or by the learned

Additional Judicial Commissioner to whose court the case was committed for trial. The approver Ram Sagar was, however, granted bail by

an order passed by the High Court of Patna, Ranchi Bench in Criminal Miscellaneous Case No. 4735 of1986 in pursuance of which he was

released on bail on 21-1-1987 while he was already examined as a witness by the committing Magistrate on 30-1-1986 and 31-1-1986 and

his statement in sessions trial was also recorded from 6-9-1986 to 19-11-1986. It is no doubt true that clause (b) of Section 306(4) directs

that the approver shall not be set at liberty till the termination of the trial against the accused persons and the detention of the approver in

custody must end with the trial. The dominant object of requiring an approver to be detained in custody until the termination of the trial is

not intended to punish the approver for having come forward to give evidence in support of the prosecution but to protect him from the

possible indignation, rage and resentment of his associates in a crime whom he has chosen to expose as well as with a view to prevent him

from the temptation of saving his one time friends and companions after he is granted pardon and released from custody. It is for these

reasons that clause (b) of Section 306(4) casts a duty on the court to keep the approver under detention till the termination of the trial and

thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one

thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior court, but such a release would not

have any affect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not

granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity

of the pardon granted to the approver Ram Sagar.

Reliance was also placed on behalf of the petitioner on the verdict of the Hon’ble High Court of Himachal Pradesh in Rajesh Kumar V. State

of Himachal Pradesh; 2007 Crl.L.J. 2687 in paragraphs 4 to 8 thereof wherein it was observed to the effect:

The applicant has been in custody since February, 2005. Trial has now commenced in all the four cases. Statement of the applicant, as

a witness, in the course of the trial has been recorded in all the cases. He has now applied for his release (on bail).

The submission made by the learned counsel for the applicant is that keeping the applicant in detention for too long would amount to

depriving him of his liberty, even though he is no longer an accused and as an approver also his statement has been recorded. He says that

since the applicant himself has sought his release, it can be presumed that he does not have any fear, apprehension or even potential threat

of danger to his life at the hands of those against whom he has deposed, by turning approver. His submission is that keeping an approver in

detention for too long is contrary to the spirit of justice and the Court, in exercise of its power, under Section 482, Cr. P. C, may order his

release. In support of his submission, he has placed reliance upon two judicial precedents. These are Full Bench judgments of two different

High Courts, namely Delhi High Court and Rajasthan High Court. The citations are :1985 Cri LJ 1534 (Delhi High Court), Prem Chand v.

State (Full Bench), and AIR 1987 Raj 52 : (1986 Cri LJ 1488), Noor Taki alias Mammu v. State of Rajasthan (Full Bench).

The facts of the precedent of Delhi High Court, relied upon by the learned counsel for the applicant, were that a man involved in

robbery, along with several other persons, turned approver. He had been in detention for 2½. years. His statement, as a witness, during

trial had been recorded. The Full Bench of the Delhi High Court observed that keeping in detention the approver was not going to serve

any useful purpose and that his having himself applied for release indicated that there was no threat to his life or any harm to his body and

that the Court, in exercise of its inherent power, under Section 482, Cr. P. C, had the jurisdiction to release him to prevent the abuse of the

process of the Court and to meet the ends of justice. Similar view has been expressed by the Rajasthan High Court in the aforesaid Full

Bench judgment.

The facts of this case are no different from the judgment of the Delhi High Court relied upon by the learned counsel for the applicant.

The applicant was been in custody for more than two years. His statement as witness in the trial has been recorded in all the four cases in

which he has been tendered pardon.

In view of what has been stated above, keeping the applicant in detention would be too harsh for him. Therefore, he is ordered to be

released on his furnishing personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the trial

Court.â€​

Reliance was also placed on behalf of the petitioner on the observations of Hon’ble High Court of Tamil Nadu in Subramaniam V. State : 2014

(1) MLJ (Crl) 117 in paragraph 11 thereof which reads to the effect:

 ""11. In the instant case, the examination of the petitioner has been completed on 13.07.2012. It is not in dispute that no application under

Section 308 Cr.P.C. stands made till date i.e., despite the passage of a period of 17 months. In such circumstance, this Court would hold

that the observations of the Apex Court relied upon by learned Public Prosecutor cannot aid the prosecution in denying the petitioner the

right to bail. If we are to so strictly construe Section 306(4)(b) Cr.P.C, then we would be left with a situation wherein, the prosecution

having treated a witness who has been granted pardon, hostile, could continue to deny him the relief of bail by not moving with due

despatch in keeping with Section 308 Cr.P.C. 12. For the above reasons and following the decisions cited before us including that of the

Division Bench of this Court and also taking note of the fact that all the other accused in the case have been granted bail, this Court is

inclined to release the petitioner on bail. Accordingly, the petitioner is ordered to be released on bail subject to the following conditions: (i)

the petitioner shall execute a bond for a sum of Rs. 10,000/- (Rupees ten thousand only) with two sureties each for the like sum to the

satisfaction of learned XXIII Metropolitan Magistrate. Saidapet, Chennai; (ii) the petitioner shall appear before the trial Court viz., I

Additional Sessions Court, Chennai, on all dates of hearings till the conclusion of the trial except on those days by filing petition u/s. 317

Cr.P.C, by assigning valid reasons. Accordingly, this Criminal Original Petition is ordered.

Inter alia, the petitioner has submitted that he undertakes to make himself available for any further investigation, if any, and undertakes to abide by

the conditions put forth by the Court in the event of grant of bail and is willing to cooperate with the prosecution and undertakes to depose as and

when necessary.

As per the order dated 165.2018, the learned Additional Sessions Judge-03, Patiala House Courts, Special Judge, MCOCA/TADA/POTA in RC

No. 20/2017/NIA/DLI it was observed to the effect that separate statements of both the accused i.e. Abdul Samad and Mehfooz Alam had been

recorded to the effect that they have admitted their guilt with regard to the offences alleged in this case and they also undertook to testify their

statements before the Court with regard to accused Shaikh Abdul Naeem @ Sohel Khan and similarly accused Mehfooz Alam had provided logistic,

financial support or shelter to co-accused Shaikh Abdul Naeem @ Sohel Khan during his stay at Gopal Ganj(Bihar). The order dated 16.5.2018 of the

learned Special Judge in the case RC No. 20/2017/NIA/DLI had observed to the effect that in as much as the accused had already got their

statements recorded under Section 164 Cr.P.C. before the learned Metropolitan Magistrate, the Investigating Agency i.e. NIA had no objection to the

grant of pardon to both the accused and the statements of both the accused had been recorded before the Court it was a fit case for grant of pardon

to the accused and thus the petitioner herein, i.e., the accused Abdul Samad and the co-accused Mehfooz Alam were granted pardon by the Special

Judge and were turned ‘approver’ from accused in the case.

Vide the reply that has been submitted by the respondent to the petition and as the response to the prayer made seeking the grant of interim bail

made vide Crl.M.(Bail) No. 7673/2020, it was submitted by the National Investigating Agency to the effect that in compliance of Order No. I-

11011/46/2017-IS-IV dated 27.11.2017 of the Ministry of Home Affairs, Government of India, New Delhi, the case FIR no. RC-20/2017/NIA/DLI

dated 27.11.2017 has been registered and it was submitted vide paragraph 2 of the response to the effect:

“2. That, in compliance of order No. I-11011/46/2017-IS-IV dated 27. 11.2017 of Ministry of Home affairs, Govt. of India, New Delhi,

the case FIR No RC-20/20 17 / NIA/ DLI dated 27.1 1.2017 has been registered at PS NIA, New Delhi, under Sections 120B, 121, 12A of

IPC and section 17,18,19,20,38,39 and 40 of UA(P) Act, 1967 against Shaikh Abdul Naeem, Amzad @ Rehan and others. The case has

been registered based on the allegations that, the proscribed terrorist outfit Laskar-e-Taiba (LeT) based in Pakistan has activated its

network based in UAE, to send money to LeT operatives, based in India for reconnaissance of targets for carrying out attacks. One of the

LeT operatives operating in India has been identified as Shiekh Abdul Nayeem @ Sohail @ Nomi (A-l). who has already established based

in Bihar, Odisha, UP and Jammu and Kashmir and is on the lookout for possible targets in and around Delhi. He has also established

contacts with other LeT operatives in India, UAE and is regularly taking directions for Amzad @ Rehan (A-8), LeT commander based in

Pakistan and in charge of operations in India, Bangladesh, Nepal and Maldives.

That during the investigation involvement/role of accused turned approver/applicant Abdul Samad son of Rashid resident of village

Bukkanpur Post Landhaura, Roorkee, Haridwar (Uttarakhand), a hawala conduit, who in connivance with accused Gul Nawaz (A-10),

based in the Saudi Arabia; accused Dinesh Garg @ Ankit Garg (A-6) and accused Adish kumar Jain (A-7), both jewelers by profession and

based in Muzafarnagar, UP who run a hawala (Hundi) network, surfaced in receiving, collecting and delivering funds received from the

Saudi Arabia through international hawala network and for delivering it to the accused Shaik Abdul Naeem@ Sohel Khan (an active

terrorist of Lashkar-e-Taiba(LeT) and others.

That, aforesaid accused turned approver/applicant Abdul Samad was arrest on 05.02.2018, in the instant case and since, then he is in

Judicial Custody.

That, accused turned approver/applicant Abdul Samad was granted conditional pardon, by the Hon’ble NIA Special Judge on

16.5.2018.

That, the NIA has not charge sheeted the accused turned approver/applicant Abdul Samad and marked as A-5/AW-2 in the charge sheet

of the case on 25.05.2018.

That, nowactive trial of case is going on in trial Court and applicant Abdul Samad is approver, in the instant NIA case.

That, there is an exclusive bar for releasing the approver, in view of the provision of Sec 306(4)(b) CrPC, if the pardon was granted u/s

30(1) CrPC, during the course of investigation, before the commital of the case.â€​

Inter alia, it has been submitted on behalf of the NIA that this Court in Aamir Abbas Dev V. State Through NIA; 2013 SCC OnLine Del 5042 has

already held that the bar under Section 306(4)(b) of the Cr.P.C., 1973 is mandatory and absolute in nature which case also related to the investigation

conducted by the NIA for the offences alleged to have committed under Section 120B, 302,307, 320 of the IPC, 1860 and Section 11 of the NIA,

Section 16 of UA(P)Act, 1967 and Section 3, 4 and 5 of the Explosives Act.

The NIA has further submitted that the applicant was not granted pardon under Section 307 of the Cr.P.C. 1973 after commitment of the case.

The NIA has reiterated that there is an imminent threat to the life of the applicant/approver/accused as one of the accused Shaikh Abdul Naeem (A-

1) has already been awarded death sentence by a Court under UAPA Act in the State of Gujarat. Inter alia, the NIA submits that the present case is

a terror related case and there is every likelihood of an attempt on the life of the applicant/accused/approver and in view of the nature of the charges

and other dreaded co-accused persons, the threat to the life of applicant/accused/approver cannot be ruled out.

It is further submitted by the NIA that one of the co-approver Mahfooz Alam (A4), has already filed an application before the Trial Court to

retract from his confessional statement as an approver and that the present applicant Abdul Samad may also retract from his statement as an

approver, it he is released from custody, at this stage. The NIA further submitted that the statement of the applicant herein as a prosecution witness is

yet to be recorded by the Trial Court and if released from custody he may retract from his statement under Section 164 Cr.P.C. 1973 as an approver.

Reliance was placed on behalf of the NIA on verdict of the Hon’ble Supreme Court in Ayodhya Singh V. State; 1973 Crl.LJ 768 wherein it

was observed to the effect:

“ the prosecution has cited 174 witnesses in the case. Delay in disposal of the case cannot be considered a valid ground where the law

prohibits the release of the approver till the termination of the trial.â€​

The NIA further submits that the very same reasons are mentioned by the applicant as his grounds seeking grant of bail and thus in as much as

the intent of the legislature is clear that the number of witnesses to be examined and the delay in trial is itself not a ground for grant of any bail to the

accused/approver which has essentially to prevail.

Inter alia, it has been submitted on behalf of the NIA that the Guidelines issued by the Hon’ble High Power Committee of this Court dated

18.5.2020 as were then in existence at the time consideration of the application and which have since been reiterated and modified virtually to similar

effect do not relate to the terror related cases investigated by the NIA. Specific reliance was placed on behalf of the NIA on the provisions of Section

306(4)(b) of the Cr.P.C. 1973, which reads to the effect:

“306. Tender of pardon to accomplice.

(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to

which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or

the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may

tender a pardon to such person on condition of his making a full and true dis- closure of the whole of the circumstances within his

knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.

(2) This section applies to-

(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment

Act, 1952 (46 of 1952 );

(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.

(3) Every Magistrate who tenders a pardon under sub- section (1) shall record-

(a) his reasons for so doing;

(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish

him with a copy of such record free of cost.

(4) Every person accepting a tender of pardon made under sub-section (1)-

(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;

(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.

(5) ………..â€​

Significantly, the NIA submits that though it did not charge sheet the accused turned approver/applicant Mahfoos Alam (A4) in the charge sheet

on 25.5.2018 in as much as he was granted conditional pardon by the Special Judge, NIA, on 16.5.2018, on the same date the accused/approver

Mahfoos Alam had filed an application for retraction of the confessional statement made by him and that such a similar situation can also arise in the

case of the present applicant. The NIA further submits that it is not for this Court to go behind the wisdom of the legislature as expressly laid down in

Section 306 of the Cr.P.C. 1973.

It is further submitted by the NIA that since the aspect that the accused/approvers are not sincere in their statements and can retract back from

their statements at any point of time is an aspect which cannot be overlooked which may cause serious plight in the instant case.

On a consideration of the submissions that have been made on behalf of either side and taking into account the observations of the Hon’ble

Full Bench of this Court in Prem Chand V. State (supra) in paragraphs 16 to 20 thereof which read to the effect:

“16. Section 482 of the Code of Criminal Procedure is to the following effect:â€

“Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary

to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.â€​

 17. The power available under this provision is notwithstanding anything else contained in the Code. In case the High Court is satisfied

that an order needs to be made to prevent abuse of the process of any court, or otherwise to secure the ends of justice the inherent powers

are available, and they are not limited or affected by anything else contained in the Code. We are not oblivious that these powers have not

to be ordinarily invoked where specific provisions are contained in the Code or specific prohibitions enacted. However, in cases where the

circumstances unmittigatingly bring out that a grave injustice is being done and an abuse of process of court is taking place either as a

result of the acts of the accused or the unavoidable procedural delays in the courts, we are of the firm opinion that the inherent powers

should and need to be exercised. The approver's evidence in the present case has already been recorded, and no useful purpose is being

served in his detention. The administration of justice is not in any manner likely to be affected by his release. There is no reason to suppose

that the machinery of law would not be able to give protection to the petitioner in case any adventurism is sought to be displayed by his

confederates, or their supporters. The conduct of the petitioner in seeking his release itself shows that the carries no apprehensions. It

would not be, therefore, correct for the court to still create such fears and profess to provide him unsolicited protection by detaining him for

indefinite period. Thus in the case of A.L. Mehra (supra) the Punjab High Court released the approver from confinement in exercise of

inherent powers to prevent the abuse of the process of court, finding that he had been in confinement for several months. Similarly the

Madras High Court in the case Karuppa Servai (supra) laid emphasis on the detention of an approver till he has deposed at the trial in the

Sessions court truly and fully to matters within his knowledge.

We are further of the opinion that there is no rational basis for inflexible classification of approvers who are in detention, and those

who because of fortuitous circumstances happen to be on bail at the time of grant of pardon. A person being granted bail and still not in

detention are not considered in law as incompatible. So far as allurement of release if allowed pardon, it is inherently there in any pardon.

As such too much of significance and rigidity need hot be attached to time factor. Moreover, a witness, even though an accomplice need not

be detained for more than what is essential for procurement of or enabling him to give his evidence. His personal liberty can, therefore, be

curtailed, if at all, for beneficial ends of administration of justice, and once they are served, his further detention becomes irrelevant. This

detention till that earlier stage may also be considered proper to avoid creation of the impression of too ready an approver to serve his

personal end of immediate or early let off even-in cases where the involvement of the other accused in that crime may turn out to be

doubtful. The existence of the provision of detention thus may serve as a damper to opportunists Who may be too keen to oblige the police,

and also prevent a possible abuse of this process as a short-cut by investigating agencies when they find no other evidence available or

dubiously seek to involve innocent persons.

Thus the 48th Report of the Law Commission in para 24′21 took note that in extra-ordinary cases of hardship an approver can

approach the High Court whose powers as to bail are very wida.

It will not be out of place to mention that when this matter was before Single Judge, it was argued on behalf of the petitioner that the

provisions of Section 306(4) (b) in all its rigidity may land itself to constitutional challenge on the ground of being violative of Article 21

read with Article 14 of the Constitution for being arbitrary and un -reasonable and in this background one of us while making the

reference order felt that if this Section applies in all its rigidity, it may have to be struck down. But since we find that in cases of hardship,

the approver can approach this Court for release, we thought it fit not to go into the question of vires of this provision. In fact, but for the

availability of this power with the High Court to release the approver perhaps the vires of Section 306(4)(b) of the Code of Criminal

Procedure may be open to serious challenge.â€​,

though it is apparent that the provisions of Section 306 (4)(b) of the Cr.P.C., 1973 cannot be taken as an absolute prohibition or fetter on the inherent

power of the High Court under Section 482 of the Cr.P.C. in appropriate cases to release the approver from detention on such conditions as the Court

deems fit, nevertheless the aspect as to whether such exercise or jurisdiction in terms of Section 482 of the Cr.P.C., 1973 is warranted even for the

prayer made by the applicant seeking grant of interim bail during the prevailing pandemic which prevailed even at the time of institution of the

application, would have to be considered on the basis of the facts and circumstances of each case inclusive of the nature of allegations against an

accused turned approver.

The verdict of the Hon’ble Full Bench relied upon by the applicant in Prem Chand Vs. State(supra) relates to the commission of offences

punishable under Sections 394, 397, 342 & 34 of the IPC, 1860. In the instant case the allegations against the petitioner/applicant as per the charge

sheet submitted by the NIA under Section 173 of the Cr.P.C., 1973 relates to the alleged commission of offences punishable under Sections 120B, 468

and 471 of the IPC, 1860, Sections 17,18, 18B, 19, 20, 21, 38, 39 and 40 of UA(P) Act, 1967, Section 12 of the Passport Act, Section 34 of the Aadhar

Act, 2016 and Section 7 and 25 of the Arms Act, 1959. Further the said charge sheet whilst making allegations against the accused persons named

shaikh Abdul Naeem @ Sohel @ Sohel Khan@ Shahzad @ Dada @ Hamid @Shaikh Sameer @ Nayya @ Abu Ali in relation to an alleged act of

terror of Lashkar-e-Taiba of the proscribed terrorist organization in India qua which it is alleged that which in pursuance of its larger criminal

conspiracy to carry out the subversive activities in India had sought to infiltrate into Indian Territory with it being alleged further vide paragraphs 17.27

and 17.28 of the charge sheet which read to the effect:

“17.27 Investigation has further revealed that on 17.11.2017, the accused turned approver witness Abdul Samad [AW-2/A-5], user of

mobile number 919639448468, as directed by accused Gul Nawaz (A-10), his handler in the Saudi Arabia, collected Rs 5 Lakh from the

accused Dinesh Garg @ Ankit Garg [A-6], who runs a shop at Sarafa Bazar, Muzaffarnagar, U.P.. He was arrested on 08.02.2018 along

with another Jeweler and hawala operator accused Adish Kumar Jain [A-7], owner of M/S Arihant Jeweler, Muzaffarnagar, UP].

17.28 Investigation has established that on 17.11.2017, the accused Shaikh Abdul Naeem @ Sohel Khan [A-1] had met the accused turned

approver witness Abdul Samad [AW-2/A-5] (the applicant herein) at Roorkee Roadways [bus stand]. The telephonic contact between the

accused Shaikh Abdul Naeem @Sohel Khan [A- 1], user of mobile number '7609831582' and the accused turned approved witness Abdul

Samad [AW-2/ A-5], (the applicant herein) user of mobile number '9639448468', on 17.11.2017 has been established through CDR analysis

of their aforesaid mobile numbers. The accused turned approver witness accused Abdul Samad[AW-2 /A-5] (the applicant herein) had met

the accused Shaikh Abdul Naeem @ Sohel Khan [A-l], however, the transaction of Rupees 3.5 Lakh could not be completed as the accused

Shaikh Abdul Naeem @ Sohel Khan [A-1] did not want to or could riot produce any credible identity proof or document except his

aforesaid mobile number as his identity.â€​

That the contents of the charge sheet in paragraphs 17.63, 17.64 and 17.65 being to the effect:

17.63 The accused turned approver witness Abdul Samad [AW-2/ A-5] (the applicant herein); son of Rashid, resident of Village Bukkanpur,

Post Landhatira, Bukkanpur,Roorkee, Bukkanpur, Haridwar, Uttarakhand-247664 was arrested on 05.02.2018 in this case. During the

investigation, it has been established that in pursuance of larger criminal conspiracy, the accused turned approver witness Abdul Samad

[AW-2/ A-5] (the applicant herein), acted as the conduit of the LeT financier based in the Saudi Arabia, and collected Rs Three Lakh and

Fifty Thousand from the accused Dinesh Garg @ Ankit Garg [A-6], hawala operator in Muzaffamagar, UP and attempted to deliver it to

the accused Shaikh Abdul Naeem @ Sohel Khan [A-1], who is an active member of LeT, a proscribed terrorist organization. The accused

turned approver witness Abdul Samad [AW- 2 /A-5] (the applicant herein) in furtherance of the larger criminal conspiracy, has facilitated

in raising, receiving and collecting fund by the accused Shaikh Abdu Naeem @ Sohel Khan [A-1] through hawala operator by receiving

money ['terror fund'] to be used for carrying out the terrorist activities.

17.64 During the investigation, the electronic devices produced by and seized from the accused turned approver witness Abdul Samad [AW-

2 / A-5] on 04.02.2018 include one white colour mobile of Oppo A57 model no. CPH1701, along with two SIMs with mobile numbers

9639448468 and 9675962626, one white colour mobile of Samsung model number GT-S7582 along with two SIMs with mobile numbers

9837386282 and 8868993856. Two SIMs, one each of ' the IDEA and Telenor have also been seized from the the accused turned approver

witness Abdul Samad [AW-2 / A-5] at the time of his personal search on 05.02.2018.

 17.65 Investigation has revealed that the accused turned approver witness Abdul Samad (AW-2/A-5) (the applicant herein) has used six

mobile numbers including 9639448468, 9675962626, 9837386282, 8868993856, one SIM of Idea and one SIM of Telenor. In pursuance

of the disclosure made by the accused Abdul Samad [AW-2] (the applicant herein) on 10.2.2018, search was conducted on 11.02.2018 at

the house of the accused turned approver witness Abdul Samad AW-2] and documents, and items / articles seized include one executive

diary, one bunch of general Railway Tickets [41 numbers], Bank pass book of SBI Landhaura of account No 32145155340 in the name of

Abdul Samad, Bank pass book Uttrakhand Gramin Bank in the name of the Abdul Samad for Account no 76013650155, Bank passbook of

Punjab National Bank in the name of Abdul Samad for Account Number 0761001700044707, a paper slip, having mentioned 'January ka

Tel', a bunch of bus tickets and filling station slips, a bunch of paper containing-visiting cards, old insurance policy of motor cycle and

PAN card letter, EPIC-in the name of the Abdul Samad (the applicant herein). The scrutiny of the aforesaid documents and items seized,

revealed that the accused turned approver witness Abdul Samad [AW-2 /A-5] (the applicant herein) has maintained the record pertaining to

the source of money received and the recipients of money distributed by him in the executive diary in his own handwriting. During the

investigation, the scrutiny of the aforesaid diary of the accused turned approver witness Abdul Samad [AW-2 /A-5] (the applicant herein)

has revealed that the accused turned approver witness Abdul Samad [AW-2 /A-5] (the applicant herein) has received and distributed

around Rupees Seven Crore Nine Lakh Fifty Thousand Two Hundred Twenty only [Rs 7,09,50,220/-], received through hawala channel

from his handlers based in the Saudi Arabia. Investigation has established that the accused turned approver witness Abdul Samad [AW-2

/A-5] (the applicant herein) has received around Rupees one Crore Fourteen Lakh Thirty Thousand Nine Hundred Fifteen only (Rs.

11430915/-) from the accused Dinesh Garg @ Ankit Garg [A-6] during the period from 05.09.2017 to 31.01.2018. Investigation has also

revealed that the accused turned approver witness Abdul Samad [AW-2 /A-5] (the applicant herein) has received around Rupees Thirty two

Lakhs Thirty Five Thousand Five Hundred only (Rs. 32,35,500/-) from Sushant @ Shushank Jain son of Adish Kumar Jain, on the direction

of the accused Adish Kumar Jain [A-7], during the period from 13.10.2017 to 18.01.2018. During the investigation, in pursuance of the

disclosure made by the accused turned approver witness Abdul Samad [AW-2 /A-5] (the applicant herein), search was conducted on

17.02.2018 at the premises of Mrs Rabiya wife of Nizam, resident of Mohalla Khatiyan, Machali Bazar Dhampur Bijnour, Uttar Pradesh,

who is one of the important recipients of huge quantity of money from the accused Abdul Samad [AW-2/A-5] (the applicant herein). The

aforesaid money has been received through same hawala channel, which was used to deliver fund to the accused Shaikh Abdul Naeem @

Sohel Khan [A-1].

with it having been submitted through the said charge sheet that the present applicant Abdul Samad [AW-2/A-5] was not charge sheeted in view of

grant of pardon of his having moved an application under Section 306 of the Cr.P.C. 1973 and in view of the recording of statement under Section 164

of the Cr.P.C., 1973 before the Magistrate as detailed in paragraph 18.3 of the charge sheet to the effect:

“ 18.3. On 16.05.2018 the Hon’ble, NIA Special Judge, Patiala House Court New Delhi, granted conditional pardon to the accused

Mahfooz Alam (A-4) and the accused Abdul Samad (A-5) (the applicant herein), who turned as approver / witness in this case. Both these

accused have filed application under section 306 Cr.P.C. before the Hon’ble Court for grant of pardon and are willing to cooperate

the prosecution and to this effect they wants to depose in the court as and when necessary. It is submitted that accused persons also got

recorded their statement under section 164 Cr.P.C. before the magistrate and they seek pardon/reprival from the court and are ready to

abide by the conditions imposed and have prayed to get them absolved from criminal liability as per law. The separate statement have been

also been recorded to the effect that they have admitted their guilt with regard to offences alleged in this case hence accused turned

approver witnesses Mahfooz Alam (AW-1/A-4) and Abdul Samad (AW-2/A-5) (the applicant herein) have not been charge sheeted at this

time.â€​

The factum that in the instant case the allegations qua which the applicant has been granted pardon relate to alleged terror activities sought to be

infiltrated into the country in relation to which as submitted through the application filed by the applicant himself, i.e., Crl.M.(Bail) 7673/2020 the threat

to his life is real and imminent as has also been submitted by the NIA coupled with the factum that there is always scope for retraction of the

confessional statement made by the applicant under Section 164 of the Cr.P.C., 1973 in the facts and circumstances of the instant case where the

provisions of Section 306(4)(b) of the Cr.P.C., 1973 stipulate categorically to the effect that every person accepting a tender or pardon made under

Sub Section (1) of Section 306 of the Cr.P.C., 1973 shall unless is already on bail, be detained in custody until the termination of the trial, have to be

interpreted strictly.

In the circumstances of the instant case and the nature of allegations levelled against the applicant, thus it is not considered appropriate in view of

the Guidelines of the Hon’ble High Powered Committee dated 18.5.2020 as reiterated and modified thereafter, to exercise the powers under

Section 482 of the Cr.P.C., 1973 to grant any interim bail to the applicant. The application Crl.M.(Bail) No. 7673/2020 is thus declined.

The matter be placed before the Hon’ble the Chief Justice to be placed before the Hon’ble Roster Bench qua Crl.M.C. 3813/2019 on

12.7.2021.