The Bombay High Court on Thursday reserved its verdict in an 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.
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.
Gaur was granted bail on November 20, 2021. However the special NIA court after passing a reasoned order granting bail, had stayed the order to enable NIA to file an appeal before the High Court.
The same was recorded in the roznama (register of the daily proceedings of a court case).
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 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 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.
“Benami sim cards cannot be used for official purpose, so he knew the purpose,” the ASG emphasized to contend that Gaur was always aware of the illegalities of his act.
On the accusation of conspiracy, the ASG submitted that everyone who has played a role in the conspiracy have been made accused.
“Initially it was an act terror and then led to murder. Once conspiracy is involved in the main offence it becomes a theory of conspiracy,” he said.
While concluding his arguments for allowing the NIA appeal, 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, opposed the NIA 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.
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 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 emphasized that it was unfair for NIA to say that the special court had not applied its mind while granting bail.
“Kindly see the order, it reproduces the submissions of NIA. It records the judgments submitted. To say that the judge has not applied his mind is unfair to his hard work of passing a reasoned order” Gupte said.
The Bench after hearing the counsel reserved the appeal for orders, stating that it will be pronounced on December 21, 2021.
Interestingly, Gaur who was supposed to be released from prison on December 9, 2021, after the stay order was quashed, is still in judicial custody despite having received bail.
