Bombay High Court Grants Bail to Afroz Khan Shahid Khan Pathan in UAPA Case, Citing Lack of Substantive Evidence

In a significant development, the Bombay High Court, in a judgment pronounced on June 22, 2023, has granted bail to Afroz Khan Shahid Khan Pathan, who was convicted under various sections of the Unlawful Activities (Prevention) Act (UAPA). The court, comprising Hon'ble Justice Revati Mohite Dere and Hon'ble Justice Gauri Godse, suspended the applicant's sentence and ordered his release on bail, citing a lack of substantive evidence to support the allegations.

Afroz Khan Shahid Khan Pathan, a 41-year-old pharmacist residing in Majalgoan, District Beed, Maharashtra, had appealed against his conviction. The court heard the arguments from both the applicant's counsel, Mr. Mubin Solkar with Mr. Tahir Hussain, and the prosecution, represented by Mr. Raja Thakare, Senior Advocate, along with Ms. S. S. Kaushik, Assistant Public Prosecutor, and Mr. Siddharth Jagushte.

The judgment highlighted that the prosecution heavily relied on confessional statements, call detail records (CDRs), and an email as evidence against the applicant. However, the court examined the confessions made by co-accused Mohammed Amir (A-1) and Aakif (A-11) and found no corroborative material or evidence to substantiate the allegations that the applicant had visited Bangladesh to collect funds.

Bombay High court observed, "There is no evidence on record to show that the applicant visited Bangladesh to collect funds as alleged by the prosecution." It further noted that the confessions of the co-accused did not clearly establish the applicant's involvement in the alleged crimes or his knowledge of the purpose for which he was sent to Bangladesh.

The court also considered an email sent by the applicant to Mohammed Amir (A-11) but found it to be inconclusive and not incriminating. The absence of a Section 65B Certificate, which authenticates electronic evidence, further weakened the prosecution's case. The court acknowledged that the applicant had been in custody for 17 years, during which he pursued educational endeavors, completed a yoga course, and engaged in counseling and de-radicalization sessions within the prison.

Citing these factors, the court concluded that the applicant had made a prima facie case for the suspension of his sentence and granted him bail. However, the court imposed specific conditions, including the submission of a personal recognizance bond of Rs. 50,000 and regular reporting to the ATS. The applicant was also directed to deposit his passport, inform the court and investigating authorities of any changes in address or contact details, and obtain permission before leaving Maharashtra.

This judgment holds significance as it emphasizes the importance of substantive evidence in criminal cases and highlights the need for proper adherence to procedural requirements when introducing electronic evidence. The granting of bail to Afroz Khan Shahid Khan Pathan after 17 years in custody underscores the court's recognition of his educational pursuits and rehabilitation efforts.

Date of Decision: 22nd June 2023

Afroz Khan Shahid vs The State of Maharashtra