[Antilia case] Bombay High Court upholds bail to Naresh Gaur, rejects NIA appeal

The Bombay High Court on Tuesday rejected the appeal filed by the National Investigation Agency (NIA) challenging bail granted by special NIA court to Naresh Gaur, accused in the Antilia bomb-scare case and the subsequent murder of businessman Mansukhlal Hiren..Bench of Justices Nitin Jamdar and SV Kotwal observed that on the basic parameters, the order under challenge did not suffer from any illegality, perversity or non-application of mind. "Gaur is in custody since March 21, 2021. The prosecution has not shown any material which suggests that he would abscond or would tamper with the evidence. In any case, these apprehensions are taken care of by the learned Special Judge, by imposing conditions. Therefore, even on that count, the bail cannot be denied to Gaur" they held. .The Court also clarified that the Gaur's case is entirely different from those of other accused. "The only strong evidence against him is that he had procured those SIM cards illegally, for which he will suffer the consequences of his act, but, this act cannot be stretched to bring it within the umbrella of the conspiracy of planting the explosives or commission of murder of Mansukh Hiran" the order states. .Gaur was the first bail recipient and was accused of procuring SIM cards for prime accused former Mumbai cop Sachin Waze and co-accused, encounter specialist Pradeep Sharma.He was granted bail on November 20, 2021 by special NIA court. However the special court had stayed the order to enable NIA to file an appeal before the High Court.The stay was challenged by Gaur before a single-judge of the High Court which quashed and set aside the stay on bail.On December 10, 2021 when the appeal was first heard, the Bench of Justices Nitin Jamdar and SV Kotwal indicated it wanted to hear the appeal on merits and adjourned the hearing to December 14, 2021.Till then, upon request of the Court, Gaur’s counsel made a statement to not act on the bail order, and the statement has been continued till order in appeal..During the hearing, Additional Solicitor General Anil Singh had showed various statements recorded by the officers of central agency during their investigation pertaining to Gaur which was also submitted in the chargesheet.He pointed out that the present case was unique in the sense that it shocked everyone that police officers were involved in it.As far as Gaur was concerned, he submitted that “the limited role of handing over the SIM Cards to the co-accused proved that he was part of the conspiracy theory”.He pointed out that procuring the SIM cards from Bhuj in a benami transaction happened only because they could not have been procured officially.On the accusation of conspiracy, the ASG had submitted that everyone who has played a role in the conspiracy have been made accused.While concluding his arguments for allowing the NIA appeal, the ASG contended that the order granting bail ought to be set aside as it did not deal with the submissions which were also made before the High Court.He stated that the conspiracy angle had not been considered by the NIA Court, which only limited itself to the role of the accused and the procurement of SIM cards..Senior Advocate Shirish Gupte with advocate Aniket Nikam appearing for Gaur, had opposed the NIA application stating that the appeal failed to make out a case how the bail will affect the trial.Gupte argued that the special court had applied its mind based on the material that was submitted to him and came to the conclusion that bail could be granted.The NIA has not been able show how there had been a meeting of minds between the accused at any stage or the intention to commit the crime, Gupte stated.He submitted that the NIA had failed to bring on record any material evidence to show that the conspirators contacted Gaur for SIM cards and the chargesheet was silent on the individual roles.Gupte’s contention was that Gaur was sent to Bhuj by his master for whom he worked for a job termed as “confidential” and was asked to bring 14 sims. Out of the 14, nine were never used, so those were innocuous.In conclusion, Gupte stated that what the Court was supposed to consider was whether the order passed by the special court was correct or not.He, however, emphasised that it was unfair for the NIA to say that the special court had not applied its mind while granting bail..The Bench after having reserved the appeal on December 21, 2021 dismissed the appeal observing that the material on record showed that there is no evidence to point out conspiracy or that there was knowledge of planting of explosives, parking of the vehicle or commission of murder of Mansukh Hiran..[Read judgment]