Jharkhand High Court
Vikash Anand vs The State Of Jharkhand on 28 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 744 of 2023
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Vikash Anand, aged about 30 years Son of Loknath Ojha resident of Q. No. F-171, Hanuman Mandir, Hanuman Garhi P.O. & P.S. Patratu, District Ramgarh.
... ... Appellant
Versus
1. The State of Jharkhand
2. U.O.I through NIA ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. Mritunjay Kumar Singh, Advocate
Mr. Mohit Raj, Advocate
Mr. Venkateshwar Gopal, Advocate
For the State : Mr. Pankaj Kumar, P.P
For the Res-UOI : Mr. Amit Kumar Das, Advocate
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C.A.V. on 06.02.2024 Pronounced on 28.02.2024
Per Sujit Narayan Prasad, J:
Prayer
1. The instant criminal appeal has been preferred on behalf of the appellant under Section 21(4) of the National Investigation Agency Act, 2008 for setting aside the order dated 03.04.2023 passed in Misc. Cr. Application No. 488 of 2023 by learned Additional Judicial Commissioner-XVI-cum- Special Judge, NIA, Ranchi whereby and whereunder the prayer for bail, in connection with NIA Case RC-01/2020- 21/NIA/RNC registered under Sections 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387, 120B, 121A and 216 of the Indian Penal Code Section 25(1)(b), 26, 27 and 35 of the Arms Act, Section 3 & 4 of Explosive Substance Act, Section -2- 10, 13, 16(1)(b), 20 and 23 of UA(P) Act and Section 17 of CLA Act, 1908, has been rejected.
Facts:
2. The prosecution case is based on the information received by Balumath police station that at about 19 hours on 18.12.2020, some unknown persons were burning vehicles by firing indiscriminately near check post no.1, Tetariakhand colliery. Assailants fired on the police party that had rushed to the spot. Accused persons had burnt four Trucks one motorcycle and injured four civilians. The remnants of the burnt vehicles, fragments of a cane bomb with wire, a white colour empty gallon of approx 02 liters, spent cartridges and three hand written pamphlets containing threats to the transporters and coal companies, involved in the mining area signed by one Pradip Ganjhu (A-
3) were found from the spot. Upon further inquiry, it was revealed that gangster Sujit Sinha(A-1) and Aman Sahu @Aman Sao(A-2) had conspired with accused Pradeep Ganjhu (A-3) and his associates namely Santosh Ganjhu, Bihari Ganjhu, Sakendra Ganjhu, Pramod Ganjhu and others to collect extortion from CCL transporters, contractors, DO holders and disruption of legitimate works. Accordingly, Balumath PS case no 234/2020 dated 19.12.2020 was registered u/s 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387 and 120B of IPC section 27 of Arms Act, Section -3- 3/4 of the Explosive Substance Act, against Sujit Sinha, Aman Sahu @ Aman Sao, Pradeep Ganjhu, Santosh Ganjhu, Bihari Ganjhu, Pramod Ganjhu, and some other unknown accused persons.
3. The Ministry of Home Affairs (MHA), Government of India, in view of the gravity of the offence and its cross border and international ramification, issued orders in exercise of power vested under Section 6(5) read with section 8 of the NIA Act 2008 and directed the NIA to take up the investigation of the aforesaid case.
4. On the direction of the Ministry of Home Affairs, NIA re- registered the case being NIA Case no 01/2021/NIA-RNC dated 04.03.2021 under section 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387, 120B, 121A, 216 of IPC Section 25(1)(b), 26, 27 and 35 of Arms Act section 3 & 4 of Explosive Substance Act section 17 CLA Act and section 10, 13, 16(1), (b), 20 and 23 UA(P) Act.
5. After investigation NIA submitted 2nd supplementary charge-sheet against Pankaj Karmali @ Khetia (A-23), Vikash Anand Ojha @ Abhishek (A-26), Akash Kumar Roy @ Monu Roy (A-27) and the appellant Kundan Kumar (A-28).
6. The appellant has been apprehended and taken into custody on 18.12.2021, i.e., after taking over the investigation by the NIA and, as such, prayer for bail was -4- made but the same has been rejected vide order dated 03.04.2023 against which the present appeal has been filed. Submission of the learned counsel for the appellant:
7. Mr. Mritunjay Kumar Singh, learned counsel for the appellant has assailed the impugned order, by which the prayer for bail of the appellant has been rejected, on the following grounds:
I. That there is no specific attributability of the appellant in commission of offence said to be committed under the Schedule offence as per the allegation leveled in the FIR and nothing has come in course of investigation against the appellant in the charge-sheet also.
II. The appellant has been implicated in the present case since he was found to be involved in the case related to arms supply for which a case was instituted at Delhi but in the said case, he has been granted bail. Submission therefore, has been made that when the nexus of the present appellant has been shown to be made in the present case is based upon the case instituted at Delhi and in which since he was directed to be released on bail therefore in the instant case also same benefit is to be extended by granting bail to the appellant.
III. It has been submitted that from perusal of charge-sheet, it would be evident that save and except the confessional statement of co-accused persons nothing -5- has come so as to connect the complicity of the appellant in the alleged commission of crime or even involvement in conspiracy said to attract the offence under the Schedule offences.
IV. Ground has been taken about the period of custody, as also there is no likelihood of trial to be concluded at an early date and hence by taking into consideration the said fact, submission has been made that the impugned order may be interfered with.
V. In support of his submission, learned counsel for the appellant has relied upon following judgments and its paragraphs:
1. Union of India vs. K.A. Najeeb [(2021) 3 SCC 713] paragraphs - 16, 17, 19.
2. Jahir Hak Vs. State of Rajasthan [2022 SCC OnLine SC 441]. Paragraphs-11 to 14
3. Kekhriesatuo Tep & Ors Vs. National Investigation Agency [(2023) 6 SCC 58], Paragraphs 13, 17 to 19
4. Yedala Subba Rao & Anr. Vs. Union of India [(2023) 6 SCC 65] paragraphs 24 to 26, 15
5. Vernon Vs. The State of Maharashtra & Anr.
[2023 SCC OnLine SC 885], paragraph: 35, 36, 40, 43, 44.
8. The learned counsel for the appellant based upon the aforesaid grounds has submitted that the learned court has -6- not taken note of the aforesaid facts, therefore, the present appeal is fit to be allowed.
Submission of the learned counsel for the respondent:
9. While on the other hand, Mr. Amit Kumar Das, learned counsel appearing for the National Investigating Agency (NIA) has defended the impugned order by taking following grounds:
(i) There is specific attributability against the appellant, as would be evident from various paragraphs of the charge-sheet i.e., paragraph nos. 17.22, 17.23, 17.24, 17.25, 17.31, 17.32, 17.36 and 18.1.
(ii) Two of the other accused persons, namely, Akash Kumar Roy @ Akash Roy @ Monu and Kundan Kumar to whom the appellant was involved in supplying arms and ammunitions their bail applications have been rejected vide order dated 13.02.2023 and 30.06.2023 in Cr. Appeal (DB) No. 1238 of 2022 and Cr. Appeal (DB) No. 298 of 2023 respectively.
(iii) Further, one of the co-accused persons against whom the allegation of giving shelter was there, namely, Ajay Turi, whose bail application was also rejected vide order dated 17.05.2023 in Cr. Appeal (DB) No. 133 of 2023 against which the appellant preferred Special Leave to Appeal (Crl.) No. 16471/2023 before -7- the Hon‟ble Apex Court, which was also dismissed vide order dated 22.01.2024.
(iv) So far as applicability of the judgment referred by learned counsel for the appellant is concerned, submission has been made that none of the judgments are applicable in the facts of the present case.
10. Mr. Das, learned counsel for the respondent-NIA based upon the aforesaid ground has submitted that since the nature of allegation leveled against the appellant is very grave and bail of identically placed accused persons, to whom the appellant used to supply arms, have already been rejected, therefore, the present appeal is also fit to be dismissed. Analysis:
11. We have heard learned counsel for the parties, perused the documents available on record and the finding recorded by learned trial Court as recorded in the impugned order as also contents of counter affidavit wherein copy of charge-sheet has also been appended.
12. It would be evident from the prosecution version that on 18.12.2020 a case being Balumath P.S. Case No. 234/2020 was instituted on information received at the Balumath Police Station against the unknown persons leveling therein the charge of burning vehicles and firing indiscriminately near Check Post No.1 near Tetariakhand Colliery. The miscreants -8- fired on the police party that had rushed to the spot. Accused persons had burnt four trucks one motorcycle and also injured 04 civilians. From the place of occurrence, remnants of the burnt vehicles, fragments of a cane bomb with wire, a white colour empty gallon of approx 02 liters, spent cartridges and three hand written pamphlets containing threats to the transporters and coal companies, involved in the mining area signed by one Pradip Ganjhu were found from the spot. The Police, on enquiry found that Sujit Sinha and Aman Sahu @Aman Sao had conspired with accused Pradeep Ganjhu and his associates namely Santosh Ganjhu, Bihari Ganjhu, Sakendra Ganjhu, Pramod Ganjhu and others to collect extortion from CCL transporters, contractors, DO holders and disruption of legitimate works.
13. Based on the aforesaid allegation, Balumath P.S. case no 234/2020 dated 19.12.2020 was instituted for the offence under Sections 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387 and 120B of IPC section 27 of Arms Act, Section 3/4 of the Explosive Substance Act, against accused persons.
14. The Ministry of Home Affairs, Government of India, in exercise of power conferred under Section 6(5) read with section 8 of the NIA Act 2008, directed the NIA to take up the investigation of the Balumath P.S. case no 234/2020 dated 19.12.2020 which was re-registered case no 01/2021/NIA- -9- RNC. Chargesheet was consequently submitted against the appellant and other accused persons.
15. The argument which has been advanced on behalf of the appellant that there is no specific attributability of the appellant in commission of offence said to be committed under the Schedule offence and the appellant has been implicated in the present case since he was found to be involved in the case related to arms supply for which a case was instituted at Delhi but in the said case, he has been granted bail.
16. Further submission has been made that save and except the confessional statement of co-accused persons nothing has come so as to connect the complicity of the appellant in the alleged commission of crime or even involvement in conspiracy said to attract the offence under the Schedule offences. Ground has been taken that since there is no likelihood of trial to be concluded at an early date and hence by taking into consideration the said fact the appellant may be released on bail.
17. While on the other hand, Mr. Amit Kumar Das, learned counsel appearing for the National Investigating Agency (NIA) has submitted that there is specific attributability against the appellant, as would be evident from various paragraphs of the charge-sheet i.e., paragraph nos. 17.22, 17.23, 17.24, 17.25, 17.31, 17.32, 17.36 and 18.1. Further co-accused persons, namely, Akash Kumar Roy @ Akash Roy @ Monu and Kundan
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Kumar to whom the appellant was involved in supplying arms and ammunitions their bail applications have been rejected vide order dated 13.02.2023 and 30.06.2023 in Cr. Appeal (DB) No. 1238 of 2022 and Cr. Appeal (DB) No. 298 of 2023 respectively. Even one of the co-accused persons against whom the allegation of giving shelter was there, namely, Ajay Turi, whose bail application was also rejected vide order dated 17.05.2023 in Cr. Appeal (DB) No. 133 of 2023 against which the appellant preferred SLP, which was also dismissed vide order dated 22.01.2024 in Special Leave to Appeal (Crl) No. 16471/2023.
18. This Court, before proceeding to consider the legality and propriety of the impugned order, deems it fit and proper to first refer the some settled proposition of law and the relevant provisions of Unlawful Activities (Prevention) Act, 1967(herein referred as Act 1967) which is required to be considered herein.
19. The main objective of the Act, 1967 is to make powers available for dealing with activities directed against the integrity and sovereignty of India. As per Preamble, Act 1967 has been enacted to provide for more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. Therefore, the aim and object of enactment of UAPA
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is also to provide for more effective prevention of certain unlawful activities.
20. To achieve the said object and purport of effective prevention of certain unlawful activities the Parliament in its wisdom has provided that where an association is declared unlawful by a notification issued under Section 3, a person, who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to 2 years, and shall also be liable to fine.
21. Clause (m) of Section 2 of the 1967 Act defines "terrorist organization". It is defined as an organization listed in the First Schedule. CPI (Maoist) has been listed at Item no. 34 in the First Schedule. Chapters III onwards of the 1967 Act incorporate various offences. Chapter IV has the title "punishment for terrorist act". Clause (k) of Section 2 provides that "terrorist act" has the meaning assigned to it under Section 15 and the terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.
22. Further section 10(a)(i) of Act 1967 provides that where an association is declared unlawful by a notification issued under Section 3 which has become effective under sub-section (3) of that Section, a person, who continues to be a member of such association shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to
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fine therefore, so long as Section 10(a)(i) stands a person who is or continues to be a member of such association shall be liable to be punished.
23. As per mandate of section 13 of the Act 1967 who takes part in or commits, or advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
24. At this juncture it will be purposeful to discuss the core of Section 43(d)(5) of the Act 1967 which mandates that the person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true apart from the other offences the appellant is accused of committing offences under Sections 17, 18 and 21 of the UA(P) Act, 1967.
25. The requirement as stipulated under Section 43D(5) of the UA(P) Act, 1967 in the matter of grant of regular bail fell for consideration before the Hon'ble Apex Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] wherein at paragraph 23 it has been held by interpreting the expression "prima facie true" as stipulated under Section 43D(5) of the Act, 1967 which would mean that the materials/evidence collated by the investigation agency in reference to the accusation against the accused concerned in the First Information Report, must prevail until
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contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the said offence. It has further been observed that it must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. The degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty" of such offence as required under the other special enactments.
26. For ready reference, paragraph 23 of the aforesaid judgment is required to be quoted herein which reads hereunder as :-
"23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty"
of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable 11 grounds for believing that the accusation against such person is "prima facie" true. By its
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very nature, the expression "prima facie true" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act...."
27. It is, thus, evident from the proposition laid down by the Hon'ble Apex Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (Supra) that it is the bounden duty of the Court to apply its mind to examine the entire materials on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not.
28. Further it is settled proposition of law that at the stage of granting or non-granting of the bail, the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise and the elaborate examination
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or dissection of the evidence is not required to be done at this stage.
29. Further, the Hon'ble Apex Court by propounding the law in the same case of National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), has observed that the elaborate examination or dissection of the evidence is not required to be done at this stage and the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. For ready reference paragraph 24 and 25 of the aforesaid judgment is being quoted herein under:-
"24. A priori, the exercise to be undertaken by the Court at this stage--of giving reasons for grant or non-grant of bail-- is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.
25. From the analysis of the impugned judgment, it appears to us that the High Court has ventured into an area of examining the merits and demerits of the evidence. For, it noted that the evidence in the form of statements of witnesses under Section 161 are not admissible. Further, the documents pressed into service by the investigating agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of the impugned judgment). Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 CrPC, on the
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specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge-sheet already filed against the respondent is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 Cr.P.C.) and other material gathered by the investigating agency during investigation."
30. It is, thus, evident that the exercise to be undertaken by the court at the stage of granting bail of giving reasons for grant or non-grant of bail that is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. Rather, the Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.
31. Further, it is the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise and such opinion must be reached by the Court not only in reference to the accusation in the F.I.R. but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 Cr.P.C.) and other material gathered by the investigating agency during investigation. Reference in this regard may be
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taken from the Judgment as rendered by the Hon‟ble Apex Court in the case of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra reported in (2005) 5 SCC 294.
32. The Hon‟ble Apex Court in a very recent judgment rendered in Gurwinder Singh Vs State of Punjab and Another reported in 2024 SCC OnLine SC 109 while taking in to consideration of the judgment as rendered in the National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) has observed that, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail and lays down that if the Court, „on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure‟, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond.
33. The Hon‟ble Apex Court further observed that the conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - „bail is the rule, jail is the exception‟
- unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act and
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the „exercise‟ of the general power to grant bail under the UAP Act is severely restrictive in scope.
34. In the aforesaid context it has further been observed by the Hon‟ble Supreme Court that the courts are, therefore, burdened with a sensitive task on hand and in dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail and the „justifications‟ must be searched from the case diary and the final report submitted before the Special Court.
35. In the aforesaid background the Hon‟ble Apex Court has held that the test for rejection of bail is quite plain and Bail must be rejected as a „rule‟, if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It has further been observed that it is only if the test for rejection of bail is not satisfied - that the Courts would proceed to decide the bail application in accordance with the „tripod test' (flight risk, influencing witnesses, tampering with evidence).
36. For ready reference following paragraphs of the aforesaid Judgment are being quoted herein under:
"27. A bare reading of Sub-section (5) of Section 43D shows that apart from the fact that Sub-section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the
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application seeking release of an accused on bail, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail. It lays down that if the Court, „on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure‟, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43D(5) of the UAP Act. In that sense, the language of bail limitation adopted therein remains unique to the UAP Act.
28. The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - „bail is the rule, jail is the exception‟ - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The „exercise‟ of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)- „shall not be released‟ in contrast with the form of the words as found in Section 437(1) CrPC - „may be released‟ - suggests the intention of the Legislature to make bail, the exception and jail, the rule.
29. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The „justifications‟ must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, „prima facie‟ standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of „strong suspicion‟, which is used by Courts while hearing applications for „discharge--"
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37. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a „rule‟, if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied that the Courts would proceed to decide the bail application in accordance with the „tripod test' (flight risk, influencing witnesses, tampering with evidence). This position is made clear by Sub-section (6) of Section 43D, which lays down that the restrictions, on granting of bail specified in Sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail.
38. The Hon‟ble Apex Court in the aforesaid judgment after textual reading of Section 43 D(5) of the UAP Act, has formulated the guideline which was summarized in the form of a twin-prong test. For ready reference the relevant paragraph is being quoted herein under:
"31. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test:
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged „accusations‟ make out an offence under Chapter IV or VI of the UAP Act
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1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC („tripod test‟)?"
39. This Court, on the basis of the aforesaid position of law and the factual aspect as has been gathered against the appellant is proceeding to examine as to whether the accusation against the appellant is prima facie true as compared to the opinion of accused not guilty by taking into consideration the material collected in course of investigation.
40. From perusal of record, it is evident that the extract of the supplementary charge-sheet is part of the counter affidavit as appended as Annexure-A. It appears from paragraph 17.23 that it has come on record that Vikash Anand Ojha @ Abhishek (A-26) [appellant herein] from January/February, 2021 to July, 2021, received multiple consignments of arms and ammunition from MP and Maharashtra and provided to Akash Kumar Roy @ Monu (A-27), Kundan Kumar (A-28) and others in the name of Abhishek. Akash Kumar Roy @ Monu (A-27), Kundan Kumar (A-28) and further provided these arms and ammunition to Shahrukh Ansari, the then absconding accused and other gang members. Vikash Anand Ojha @ Abhishek (A-26) was arrested by a team of Special Cell, Delhi Police from Chopda, Maharashtra.
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41. It has further been revealed as has been referred under paragraph 17.24 of the supplementary chargesheet that Akash Kumar Roy @ Monu (A-27), Kundan Kumar (A-28) also arranged a flat at Namkum (Ranchi) for the criminal activities of the terrorist gang. Both of them facilitated safe stay/harbor to Shahrukh Ansari, the then absconding accused in the instant case in the said flat at Namkum, Ranchi. In this flat, accused Vikash Anand Ojha @ Abhishek (A-26) visited the said flat at Nankum, Ranchi and supplied arms and ammunition during his visit in June/July 2021. On 19.07.2021 this flat was raided by Police of PS Namkum and arrested Kundan Kumar (A-28) with the arms and ammunition supplied by Vikash Anand Ojha @ Abhishek(A-26). However, accused Shahrukh Ansari and Akash Kumar Roy @ Monu(A-27) managed to escape from this flat. A separate case no.187/2021 dated 19.07.2021 was registered by Namkum Police against Akash Kumar Roy @ Monu (A-27), Kundan (A-28) and others. It appears from Paragraph 17.26 that Kundan Kumar (A-28) received Shahrukh Ansari from Ratu Talab, Ratu in Ranchi and brought him at Namkum flat for facilitating his safe stay/harbor for further criminal activities. Kundan Kumar (A-28) was tasked to supply arms and ammunition to the Sujit Sinha and Aman Sahu gang.
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42. The investigation further revealed, as has been referred at paragraph 17.36, wherein the complicity of Kundan Kumar (A-28) has been referred who has been seen with Akash Kumar Roy @ Monu. It has also come that during the photo identification proceeding in presence of independent witnesses, protected witness "C" identified the photograph of Vikash Anand Ojha @ Abhishek (A-26) and stated that in the month of June/July 2021, he saw him with Akash Kumar Roy @ Monu Roy (A-27) and Kundan Kumar (A-28) in the said flat. He has also corroborated the fact that he saw him before the raid by Namkum Police in the flat, this person was also present in the said flat in Namkum with Akash Kumar Roy @ Monu Roy (A-27) and Kundan Kumar (A-28). Paragraph 17.22, 17.23, 17.24, 17.25, 17.31, 17.32, 17.36 and 18.1 are quoted hereunder as :-
"17.22 During the investigation, it has come on record that in the month of November, 2020, on the direction of Aman Sahu, Shahrukh Ansari along with accused Wasim Ansari of Kanbhita received 20 mobiles and Rs. 70,000/- from Abhishek Singh (A-26) at Ratu talab, Ranchi. Further, on the direction of Aman Sahu, Abhishek Singh (A-26) provided three pistols, two single shot country-made Kattas with 20 round of each and Rs. 50.000/- cash. to Shahrukh Ansari (A-21) for carrying out firing and arson at Tetariyakhad, at Ratu Talab, Ranchi. Vikash Anand Ojha @ Abhishek(A-26) stated that on the direction of Aman Sahu, he provided logistic support and had been supplying arms and ammunition to the gang since 2019.
17.23 During the investigation, it has come on record that
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Vikash Anand Ojha @ Abhishek (A-26) from January/February, 2021 to July, 2021, received
multiple consignments of arms and ammunition from MP and Maharashtra and provided to Akash Kumar Roy @ Monu (A-27), Kundan Kumar (A-28) and others in the name of Abhishek. Akash Kumar Roy @ Monu (A-27). Kundan Kumar (A-28) further provided these arms and ammunition to Shahrukh Ansari, the then absconding accused and other gang members. Vikash Anand Ojha @ Abhishek (A-26) was arrested by a team of Special Cell, Delhi Police from Chopda, Maharashtra in its case No. 225 of 2021 dated 26.08.2021 having in possession 20 semi-automatic/country made pistols, 50 live rounds, One Xiaomi smart phone alongwith 02 Airtel Sim cards.
17.24 Investigation has revealed that Akash Kumar Roy @ Monu (A-27), Kundan kumar (A-28) also arranged a flat at Namkum (Ranchi) for the criminal activities of the terrorist gang. Both of them facilitated safe stay/harbor to Shahrukh Ansari, the then absconding accused in the instant case in the said flat at Namkum, Ranchi. In this flat, accused Vikash Anand Ojha @ Abhishek (A-26) visited the said flat at Nankum, Ranchi and supplied arms and ammunition during his visit in June/July 2021. On 19.07.2021 this flat was raided by Police of PS Namkum and arrested Kundan Kumar (A-28) with the arms and ammunition supplied by Vikash Anand Ojha @ Abhishek (A-26). Shahrukh Ansari and Akash Kumar Roy @ Monu (A-27) managed to escape from this flat. A separate case no.187/2021, dated 19.07.2021 was registered by Namkum Police against Akash Kumar Roy @ Monu (A-27), Kundan (A-28) and others.
17.25 Investigation has revealed that Akash Kumar Roy @Monu(A-27) stated that he came in contact with Sujit Sinha while he was running Food Valley Restaurant at Jail Mor, Ranchi. In 2017, he received a WhatsApp call from Sujit Sinha from Hazaribagh Jail in which, Sujit Sinha requested him to bring his wife Riya Sinha to Hazaribagh Jail for meeting. During this process, Sujit Sinha asked him to work
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with him and to demand extortion in his name. For this purpose, Akash Kumar Roy @ Monu(A-27)arranged SIM cards from Jamshedpur and distributed the same amongst the gang members. Thereafter, he along with other gang members demanded extortion from businessmen of Palamu, Daltonganj. He was arrested by Palamu Police on the complaint of owner of Palamu Agency. In 2019 also he was arrested by Jamshedpur Police in forged SIM card case which were arranged by him for the purpose of demanding extortion.
17.32 Investigation revealed that Vikash Anand Ojha @ Abhishek(A-26)was using Airtel mobile numbers 8862822874 and 8116049395 post Tetariyakhad incident in supplying of arms and ammunition to this terrorist gang. The call data records of these mobile numbers were sought from the service provider. On analysis, his location as per the call data of said mobile numbers it revealed that he had gone to Maharashtra and Madhya Pradesh in January/February, April, June, July and August 2021 till his arrest with arms and ammunition by Special Cell of Delhi Police from Chopda, Maharashtra. 17.36 During investigation, it has come on record that Protected witness "C" stated that Akash Kumar Roy a Monu Roy (A-27) and Kundan Kumar (A-28) arranged a flat at Namkum, Ranchi on forged ID proof. He saw other persons with Akash Kumar Roy @Monu Roy (A-27) and Kundan Kumar (A-28) at this flat During, the photo identification proceeding in presence of independent witnesses, protected witness "C" identified the photograph of Vikash Anand Ojha @ Abhishek (A-26) and stated that in the month of June/July 2021, he saw him with Akash Kumar Roy @ Monu Roy (A-27) and Kundan Kumar (A-28) in the said flat. He also identified the photograph of Shahrukh Ansari and stated that he saw him before the raid by Namkum Police in this flat, this person was also present at the said flat in Namkum with Akash Kumar Roy Monu Roy (A-27) and Kundan Kumar (A-28)."
17.38 During the course of investigation report of explosive
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section of SFSL, Ranchi was obtained which establishes the presence of high explosive mixture of Nitrocellulose, Nitroglycerine and Potassium nitrate alongwith Ammonium Nitrate in the Cane bomb exploded at the terror site. The electric wires seized from the scene of crime were also found in working condition which can be used in electrical circuit. The analysis of swabs obtained from hole mark of trucks also confirmed the detection of Lead and Copper in the swab which concluded that the holes were caused due to impact of bullet during firing.
18. Charge:
18.1 Investigation brought on record that Pankaj Karmali @ Khetin (A-23), Vikash Anand Ojha @ Abhishek (A-26).
Akash Kumar Roy @ Monu Roy (A-27) and Kundan Kumar (A-28) alongwith other known and unknown accused persons were found to be involved in the criminal conspiracy by forming a terrorist gang, rioting with deadly weapons, disruption of government work, assault on government functionaries, attempt to murder, mischief by fire and explosive substance, extortion of money, harboring to the absconder, supplying of firearms, having in possession and use of firearms, causing explosion and carrying out terrorist acts. They have committed offences under various sections of law as mentioned against them and are thus charged:
A-26-Vikash Anand Ojha @ Abhishek S/o late Loknath Ojha Charged under Section:
Sec 120B read with 212, 384 of Indian Penal Code Sec 120B of IPC r/w 25(1)(B), 26of Arms Act, Sec 17, 18, 19, 20 of UA(P) Act, 1967.
43. It is thus evident from the imputation against the appellant, as referred in the paragraphs as quoted herein above, that it has come in the course of investigation on the direction of Aman Sahu, Shahrukh Ansari along with accused Wasim Ansari of Kanbhita received 20 mobiles and
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Rs. 70,000/- from Abhishek Singh (A-26) at Ratu talab, Ranchi. Further, on the direction of Aman Sahu, Abhishek Singh (A-26) provided three pistols, two single shot country- made Kattas with 20 rounds of each and Rs. 50.000/- cash. to Shahrukh Ansari (A-21) for carrying out firing and arson at Tetariyakhad, at Ratu Talab, Ranchi. Vikash Anand Ojha @ Abhishek(A-26) stated that on the direction of Aman Sahu, he provided logistic support and had been supplying arms and ammunition to the gang since 2019. Further, Vikash Anand Ojha @ Abhishek (A-26) from January/February, 2021 to July, 2021, received multiple consignments of arms and ammunition from MP and Maharashtra and provided to Akash Kumar Roy @ Monu (A-27), Kundan Kumar (A-28) and others in the name of Abhishek. It has further come in investigation that Vikash Anand Ojha @ Abhishek (A-26) (appellant) was arrested by a team of Special Cell, Delhi Police from Chopda, Maharashtra in its case No. 225 of 2021 dated 26.08.2021 having in possession 20 semi- automatic/country made pistols, 50 live rounds, One Xiaomi smart phone alongwith 02 Airtel Sim cards. Accused- Akash Kumar Roy @ Monu (A-27), Kundan kumar (A-28) also arranged a flat at Namkum (Ranchi) for the criminal activities of the terrorist gang, which was visited by appellant- Vikash Anand Ojha @ Abhishek (A-26) and supplied arms and ammunition during his visit in June/July 2021. On
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19.07.2021 this flat was raided by Police of PS Namkum and arrested Kundan Kumar (A-28) with the arms and ammunition supplied by Vikash Anand Ojha @ Abhishek (A-
26). Investigation further reveals that Vikash Anand Ojha @ Abhishek(A-26) was using Airtel mobile numbers 8862822874 and 8116049395 post Tetariyakhad incident in supplying of arms and ammunition to this terrorist gang. On analysis, his location as per the call data of said mobile numbers it revealed that he had gone to Maharashtra and Madhya Pradesh in January/February, April, June, July and August 2021 till his arrest with arms and ammunition by Special Cell of Delhi Police from Chopda, Maharashtra. During investigation, it has come on record that the protected witness "C" identified the photograph of Vikash Anand Ojha @ Abhishek (A-26) and stated that in the month of June/July 2021, he saw him with Akash Kumar Roy @ Monu Roy (A-27) and Kundan Kumar (A-28) in the said flat. On the aforesaid allegation the accused Vikash Anand Ojha @ Abhishek (A-26) alongwith other known and unknown accused persons were found to be involved in the criminal conspiracy by forming a terrorist gang, rioting with deadly weapons, disruption of government work, assault on government functionaries, attempt to murder, mischief by fire and explosive substance, extortion of money, harboring to the absconder, supplying of firearms, having in possession and use of firearms, causing
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explosion and carrying out terrorist acts accordingly charge was framed against him.
44. The argument has emphatically been made on behalf of appellant that that there is no specific attributability of the appellant in commission of offence said to be committed under the Scheduled offence and the appellant has been implicated in the present case since he was found to be involved in the case related to arms supply for which a case was instituted at Delhi but in the said case, he has been granted bail.
45. In the aforesaid context, it requires to revisit the Statutory provision especially Section 43D (5) of Act 1967, which requires consideration before looking to the legality and propriety of the order refusing to grant of regular bail.
46. Section 43D (5) mandates that the person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true apart from the other offences the appellant is accused of committing offences under Sections 17, 18 and 21 of the UA(P) Act, 1967.
47. The requirement as stipulated under Section 43D(5) of the UA(P) Act, 1967 in the matter of grant of regular bail that while considering the ground of delay under Section 43D(5), it is the bounden duty of the Court to apply its mind to examine the entire materials on record for the purpose of
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satisfying itself, whether a prima facie case is made out against the accused or not.
48. Further, since the learned counsel for the appellant has relied upon different judgments so as to interfere with the impugned order, therefore, this Court deems it fit and proper to go through the judgment as referred by learned counsel for the appellant:
49. First judgment is the judgment rendered by Hon‟ble Apex Court in the case of Union of India vs. K.A. Najeeb [supra]. The learned counsel for the appellant has relied upon the case of KA Najeeb (supra) in support of his contention that the appellant has been in jail in the instant case since 18.12.2021 which is contrary to law laid down in the aforesaid case. While this argument may appear compelling at first glance, it lacks depth and substance.
50. In KA Najeeb (supra) the Hon‟ble Apex Court was confronted with a circumstance wherein except the respondent-accused, other co-accused had already undergone trial and were sentenced to imprisonment of not exceeding eight years therefore the Hon‟ble Apex Court while considering the fact that since the respondent-accused had already served portion of the maximum imprisonment i.e., more than five years, hence not interfered in order granting bail.
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51. Further, in KA Najeeb's case the trial of the respondent-accused was severed from the other co-accused owing to his absconding and he was traced back in 2015 and was being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said accused therefore the Hon‟ble Apex Court in the view of unlikelihood of completion of trial in near future not interfered in the order granting bail. However, the instant case is different on fact and circumstances as such judgment as referred by the learned counsel will not be applicable herein.
52. The second judgment is in the case of Jahir Hak Vs. State of Rajasthan [supra]. It is evident from the facts in which the concerned appellant was directed to be released on bail based upon the facts that he was in custody for a period of nearly 8 years. The Hon‟ble Apex Court while taking note of period of custody of 8 years after making an observation that the appellant is charged with the offences some of which are punishable with a minimum punishment of 10 years and the sentence may extend to imprisonment of life, considering the aforesaid fact as also the issue on merit as to whether the allegation against the appellant of the said case is prima facie is stated to be true so as the conviction stipulated under Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 is attracted or not. In the said case, the basis of the
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case against the appellant was upon the fact that he was found to be in touch with one of the accused who is sought to be good by conversations which the appellant is alleged to have been engaged with accused with 31 occasions, who is co-villager. The Hon‟ble Apex Court taking into consideration the nature of allegation made therein and considering the period of custody of 8 years came to the conclusive finding that the allegation leveled against the appellant of the said case namely Jahir Haq cannot be said to be prima facie true and hence in view of the conviction stipulated under Section 43D(5) the Court has come to the conclusion that the allegation since is not prima facie true and the appellant remained in custody for 8 years directed to release the said accused from judicial custody. Relevant paragraph of the judgment needs to referred herein, which reads as under:
"11. In this regard, the basis of the case against the appellant appears to be largely the fact that he was found to be in touch with one of the accused and which is sought to be made good by conversations which the appellant is alleged to have engaged in with that accused on 31 occasions, who is a co-villager. According to the respondent, the said accused is the head of a sleeper cell module of Indian Mujahideen.
12. We bear in mind the judgment of this Court reported in Union of India v. K.A. Najeeb (2021) 3 SCC 713. Therein, the following observations cannot be overlooked:
"12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the
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NDPS Act") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156], Babba v. State of Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v. State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.
19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, etc."
13. No doubt, in the said case, as pointed out by the learned counsel appearing on behalf of the State, the Court was dealing with an order passed by the High Court granting bail, whereas, in this case, the converse is true, that is, the impugned order is one rejecting the application for bail. The fact remains that the appellant has been in custody as an undertrial prisoner for a period of nearly 8 years already. The appellant, it may be noted, is charged with offences, some of which are punishable with a minimum punishment of 10 years and the sentence may extend to imprisonment for life. Learned counsel for the appellant also points out that one of the co-accused namely Shri Aadil Ansari has been
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released on bail on 30.09.2020 by this Court. No doubt, in this regard, we keep in mind the submission of the State that the role attributed to the said accused is different.
14. The condition in Section 43D(5) of the Act of 1967 has been understood to be less stringent than the provisions contained in Narcotic Drugs and Psychotropic Substances Act, 1985, as already noticed by us. We would think that in the nature of the case against the appellant, the evidence which has already unfolded and above all, the long period of incarceration that the appellant has already undergone, time has arrived when the appellant be enlarged on bail. We bear in mind the fact that the prosecution seeks to examine as many as 109 witnesses of which only 6 witnesses have been fully examined so far. Accordingly, we allow the appeal, set aside the impugned order and direct that the appellant shall be released on bail subject to such conditions as shall be fixed by the trial Court."
53. In the case of Yedala Subba Rao & Anr. Vs. Union of India [supra] the Hon‟ble Supreme Court has taken into consideration the implication of Section 43-D(5) of the Act, 1967 and considering the fact of the aforesaid case wherein on the basis of confession the implication was of the said case but the said confession lead to no recovery and hence applying the principle as stipulated under Section 43-D(5) of the Act, 1967 the Hon‟ble Apex Court has come to the conclusion that the allegation leveled against the appellant of the said case cannot be said to be prima facie true.
54. In the case of Kekhriesatuo Tep & Ors Vs. National Investigation Agency [supra], which is the judgment in the backdrop of the fact that the learned court of first instance has allowed the privilege of bail but high court in exercise of
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power of appeal has reversed the said order, against which, the matter travelled to Hon‟ble Apex Court and thereby the judgment of Hon‟ble Apex Court has come. In the said case, the Hon‟ble Apex Court has been pleased to hold that when the allegation against the appellant of the said case was that they were office bearers of the organizations used to regularly extort money from the various government servant and other individuals. The learned Special Judge has observed while granting the privilege of bail that the Court has to differentiate between those who commit extortion on their own volition and those who are coerce to pay extortion by compulsion. The Court has found that the prosecution has not been able to show that the accused has voluntarily been contributing the funding of the outfits for various activities and taking note of the aforesaid fact the bail was granted but the high court by recording that the accused appellant has committed offence prompted by element of threat having regard to the provision of 43D(5) of the said Act the prayer for bail could not have been acceded.
55. The Hon‟ble Apex Court on consideration of the factual aspects has taken into consideration the fact that once the benefit of liberty was granted to the appellant by the court of first instance that can only be reversed if the finding so recorded by the court of first instance was either perverse or impossible. The Hon‟ble Apex Court on the aforesaid limited
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ground has allowed the appeal by quashing and setting aside the order passed by the High Court.
56. In Vernon Vs. The State of Maharashtra & Anr. [supra], case letters and statements, various literatures, books etc. have been referred to by the prosecution which have been claim to have recovered from the residences of the appellant and those literature mainly involve writings on extreme left-wing ideology including its application to India. The Hon‟ble Apex Court has found that, no evidence has been led by the agency which would implicate the appellant in terrorist acts and the other offences barring the letters on which emphasis has been laid by the agency. The Hon‟ble Apex Court based upon the aforesaid fact has submitted that merely by writing a script cannot said to attract the penal offence of UAPA Act and thereby reached to the conclusion that the allegation cannot be said to be prima facie true.
57. But in the instant case direct nexus has been shown by the charge-sheet and from charge-sheet it is evident that the appellant has been facilitating the logistic support in the form of arms and ammunitions has been supplied to banned organisation. Hence the ratio of the aforesaid case cannot be applicable herein.
58. All these judgments, upon which, reliance has been placed, as referred hereinabove, is on the principle laid down by Hon‟ble Apex Court in the case of National Investigation
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Agency v. Zahoor Ahmad Shah Watali (Supra) has primarily considered the implication of Section 43-D(5) of the UAPA Act, 1967.
59. The Section 43-D(5) is having the condition for grant of bail that is if as per allegation leveled against the concerned the same is found to be prima facie untrue then by recording reason to that effect the person concerned can be enlarged on bail but contrary to the same if the concerned court comes to the conclusion that the allegation leveled against the concerned is prima facie true then the appeal is to be rejected.
60. This Court is now proceeding to examine the argument which has been advanced on behalf of the appellant based upon the principle laid down by Hon‟ble Apex Court as also the applicability of the judgment referred by learned counsel for the appellant.
61. It is evident from paragraphs 17.22, 17.23, 17.24, 17.25, 17.31, 17.32, 17.36 and 18.1 of the charge-sheet, wherein specific attributability has come in course of investigation as under:
I.On the direction of Aman Sahu, Shahrukh Ansari along with accused Wasim Ansari of Kanbhita received 20 mobiles and Rs. 70,000/- from Abhishek Singh (A-26) at Ratu talab, Ranchi. Further, on the direction of Aman Sahu, Abhishek Singh (A-26) provided three pistols, two single shot country- made Kattas with 20 round of each and Rs. 50.000/- cash. to Shahrukh Ansari (A-21) for carrying out firing and arson at
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Tetariyakhad, at Ratu Talab, Ranchi. Vikash Anand Ojha @ Abhishek(A-26) stated that on the direction of Aman Sahu, he provided logistic support and had been supplying arms and ammunition to the gang since 2019.
II. During the investigation, it has come on record that Vikash Anand Ojha @ Abhishek (A-26) from January/February, 2021 to July, 2021, received multiple consignments of arms and ammunition from MP and Maharashtra and provided to Akash Kumar Roy @ Monu (A-
27), Kundan Kumar (A-28) and others in the name of Abhishek. Vikash Anand Ojha @ Abhishek (A-26) was arrested by a team of Special Cell, Delhi Police from Chopda, Maharashtra in its case No. 225 of 2021 dated 26.08.2021 having in possession 20 semi-automatic/country made pistols, 50 live rounds, One Xiaomi smart phone alongwith 02 Airtel Sim cards.
III. Investigation has revealed that Akash Kumar Roy @ Monu (A-27), Kundan kumar (A-28) also arranged a flat at Namkum (Ranchi) for the criminal activities of the terrorist gang.. In this flat, accused Vikash Anand Ojha @ Abhishek (A-26) visited the said flat at Nankum, Ranchi and supplied arms and ammunition during his visit in June/July 2021. On 19.07.2021 this flat was raided by Police of PS Namkum and arrested Kundan Kumar (A-28) with the arms and ammunition supplied by Vikash Anand Ojha @ Abhishek (A-
26).
IV.Investigation revealed that Vikash Anand Ojha @ Abhishek(A-26)was using Airtel mobile numbers 8862822874 and 8116049395 post Tetariyakhad incident in supplying of arms and ammunition to this terrorist gang. On analysis, his location as per the call data of said mobile numbers it revealed that he had gone to Maharashtra and Madhya Pradesh in January/February, April, June, July and August 2021 till his arrest with arms and ammunition by Special Cell of Delhi Police from Chopda, Maharashtra. V.Protected witness "C" identified the photograph of Vikash
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Anand Ojha @ Abhishek (A-26) and stated that in the month of June/July 2021, he saw him with Akash Kumar Roy @ Monu Roy (A-27) and Kundan Kumar (A-28) in the said flat. VI. Accordingly, charge was framed that accused-Vikash Anand Ojha @ Abhishek (A-26). is found to be involved in the criminal conspiracy by forming a terrorist gang, rioting with deadly weapons, disruption of government work, assault on government functionaries, attempt to murder, mischief by fire and explosive substance, extortion of money, harboring to the absconder, supplying of firearms, having in possession and use of firearms, causing explosion and carrying out terrorist acts.
62. Therefore, argument which has been advanced is based upon the consideration of provision as contained under Section 43-D(5) of the Act, 1967 and the order passed by the Hon‟ble Apex Court in the cases, as referred by learned counsel for the appellant, this Court is of the view that in all those cases upon which the reliance has been placed are on different facts.
63. It is settled proposition of law that the applicability of the judgment depends upon the facts and circumstances of each and every case and there cannot be any universal application of the judgment rather each judgment is to be decided on the basis of fact of each case. Reference in this regard may be taken from the judgment as rendered by the Hon‟ble Supreme Court in Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors reported in (2014) 5 SCC 75 for ready reference the relevant paragraph is being quoted herein under
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"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
64. As such this Court is of the view by going through the imputation as has been found in course of investigation that the complicity of the appellant has come from confession made by co-accused persons, who have been implicated in the present case after investigation having been taken over by the NIA.
65. Investigating Agency based upon the disclosure made by co-accused persons, have disclosed that the arms and ammunitions were supplied by present appellant, Vikash Anand Ojha @ Abhishek (A-26) from January/February, 2021 to July, 2021, received multiple consignments of arms and ammunition from MP and Maharashtra and provided to Akash Kumar Roy @ Monu (A-27), Kundan Kumar (A-28) and others in the name of Abhishek.
66. The NIA, based upon the said confession has got information about pending case at Delhi against the present appellant at Delhi from where he has been remanded in the present case.
67. In the same case, which has been instituted at Delhi the arms and ammunitions have been recovered said to be
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supplied from MP and Maharashtra and provided to Akash Kumar Roy @ Monu (A-27), Kundan Kumar (A-28) and others in the name of Abhishek. The appellant from the aforesaid case was remanded and has confessed his guilt. The aforesaid conduct of the appellant finds corroboration from the statement of other co-accused persons, namely, Akash Kumar Roy @ Monu (A-27), Kundan Kumar (A-28), to whom the arms were used to be supplied. Not only that the appellant was also involved in supply of arms to the Aman Sahu Gang, the banned gang in the State of Jharkhand.
68. It is thus evident that this Court on the aforesaid allegation cannot come to the conclusion that whatever has come in course of investigation against the appellant is said to be prima facie untrue rather this Court is of the view that the allegations are sufficient to come to the conclusion that the allegation is prima facie true.
69. Hence, this Court, applying the statutory provision as contained under Section 43-D(5) of the Act, 1967 along with its interpretation by the Hon‟ble Apex Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (Supra) and Gurwinder Singh Vs State of Punjab and Another (supra), is of the view that the argument which has been placed that the allegation which is leveled against the appellant cannot be said to be prima facie true is having no substance. Further the bail application of Akash Kumar
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Roy @ Akash Roy @ Monu and Kundan Kumar to whom the appellant was involved in supplying arms and ammunitions their bail applications have been rejected vide order dated 13.02.2023 and 30.06.2023 in Cr. Appeal (DB) No. 1238 of 2022 and Cr. Appeal (DB) No. 298 of 2023 respectively, copies of the order is appended with memo of appeal.
70. It has been informed by learned counsel for the NIA that one of the co-accused persons namely, Ajay Turi against whom allegation was to arranged electric wire battery of motorcycle petrol and caned for terror incident at Tetariakh and to the members of the banned organization who has also filed application for prayer for bail and having been rejected by the court of first instance and against which appeal has been filed in Cr. Appeal (DB) No. 133 of 2023.
71. This Court has rejected the said appeal by upholding the order passed by learned Special Judge.
72. It has further been informed that the said Ajay Turi moved to Hon‟ble Apex Court against the order passed by this Court by filing Special Leave to Appeal (Crl) No. 16471/2023, which was rejected vide order dated 22.01.2024, a copy of which has been placed before us for its perusal.
73. As already discussed above, the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of supply of
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Arms ammunition through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice.
74. Hence, we are of the considered view that the material on record prima facie indicates the complicity of the accused as a part of the conspiracy since he was knowingly facilitating the commission of terrorist act under sections of the UAP Act.
75. This Court taking into consideration the aforesaid facts is of the view that in the circumstances as referred hereinabove and taking into consideration the allegation leveled against the appellant the impugned order needs no interference by this Court.
76. Accordingly, the instant appeal fails and is dismissed.
(Sujit Narayan Prasad, J.) (Sanjay Prasad, J.) Alankar/ A.F.R.