Jharkhand High Court
Vinit Agarwal @ Vineet Agarwal vs National Investigation Agency on 18 April, 2022
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Rajesh Kumar
Cr. Appeal (DB) No. 208 of 2022
[Against the order dated 08.03.2022, passed by the learned AJC/XVI-cum- Spl.
Judge, NIA, Ranchi in Misc. Criminal Application No. 328 of 2022 in connection
with Special Case (NIA)No. 03 of 2018 arising out of R.C. Case No. 06 of
2018/NIA/DLI].
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Vinit Agarwal @ Vineet Agarwal, S/o late Binod Kumar Agarwal, R/o Kunj
Bihari, Harihar Singh Road, P.O & P.S.-Bariatu, District-Ranchi.
.....Appellant
Versus
National Investigation Agency, Ranchi Camp, through the Deputy
Superintendent of Police, having its camp office at Quarter No. 305 Sector-II,
P.O P.S. Dhurwa, District-Ranchi, Jharkhand.
....Respondent
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For the Appellant : Mr. Sumeet Gadodia, Advocate
For the Respondent : Mr. Vikramjit Banerjee, ASGI
: Mr. Amit Kumar Das, Spl. P.P., NIA
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE RAJESH KUMAR
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09/18/04/2022
Per, R. Mukhopadhyay, J:
Heard Mr. Sumeet Gadodia, learned counsel for the appellant and Mr.
Vikramjit Banerjee, learned Additional Solicitor General of India.
2. This appeal is directed against the order dated 8.3.2022, passed by Shri
Madhuresh Kumar Verma, learned Additional Judicial Commissioner, XVI cum
Special Judge, NIA at Ranchi in Miscellaneous Criminal Application No. 328 of
2022 in connection with Special Case (NIA) No. 3 of 2018, arising out of R.C.
Case No. 06 of 2018/NIA/DLI, whereby and whereunder the prayer for bail of
the appellant was rejected.
3. A written report was submitted by Ramdhari Singh, Sub Inspector of
Police, posted at Simaria P.S. to the effect that on 10.01.2016, a secret
information was received by the Superintendent of Police that in Amrapali
Magadh Coal Area in Tandwa, some local people have formed an association
which is related to the banned extremist outfit TPC. The members of such
association were extracting levy from coal traders and D.O. holders by creating
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fear in the name of extremists of TPC namely Gopal Singh Bhokta @ Brijesh
Ganjhu, Mukesh Ganjhu, Kohram Ji, Akraman Ji @ Ravindra Ganjhu,
Anischay Ganjhu, Bhikan Ganjhu, Deepu Singh@ Bhikan and Bindu Ganjhu.
It was also alleged that if any businessmen hesitates to pay levy, they are
threatened by members of such organization and are also subjected to
hardships. In order to verify the truthfulness or otherwise of such information,
a raiding party was constituted on the orders of the Superintendent of Police,
Chatra. A raid was conducted in the house of the President of the Association-
Binod Kumar Ganjhu and from under his bed as well as from an almirah,
Rs.91,75,890/- was recovered. No satisfactory explanation could be submitted
by Binod Kumar Ganjhu with respect to the recovery of such huge amount of
cash. From the house of Binod Kumar Ganjhu, two persons were also
apprehended who disclosed their names as Birbal Ganjhu and Munesh Ganjhu
and on search of their persons, a looted Mauser pistol was recovered from the
possession of Nirmal Ganjhu while from the possession of Munesh Ganjhu, a
country made pistol and two live cartridges were recovered. Both had
confessed of being associated with TPC organization. Binod Ganjhu had
disclosed that he is the President of "Magadh Sanchalan Samittee" and the
levy collected is sent to Gopal Singh Bhogta @ Brijesh Ganjhu and thereafter
it is distributed amongst Mukesh Ganjhu, Kohram Ji, Akraman Ji @ Ravindra
Ganjhu, Anischyaji, Bhikan Ganjhu and Deepu Singh @ Bhikan. He had further
disclosed that Bindu Ganjhu is a member of "Amrapali Sanchalan Samittee"
who collects levy on behalf of TPC and since he is at present in jail, the
collection of levy is being done by Pradeep Ram. On such information, a raid
was conducted in the house of Pradeep Ram and from under his bed as well
as from an almirah, Rs.,57,57,710/- in cash was recovered. No satisfactory
explanation was given by Pradeep Ram with respect to the cash recovered.
4. Based on the aforesaid allegations, Tandwa P.S. Case No. 2 of 2016
was instituted for the offences under sections 414, 384, 386, 387, 120B of the
Indian Penal Code, section 25 (1-b)(a), 26/35 of the Arms Act and section
17(1)(2) of Criminal Law Amendment Act against Binod Kumar Ganjhu,
Munesh Ganjhu, Pradeep Ram, Birbal Ganjhu, Gopal Singh Bhokta @ Brijesh
Ganjhu, Mukesh Ganjhu, Kohram Ji, Akraman Ji @ Ravindra Ganjhu,
Anischya Ganjhu, Deepu Singh @ Bhikan, Bindu Ganjhu @ Bindeshwar
Ganjhu and Bhikan Ganjhu.
5. On 10.03.2016, charge sheet was submitted against the other accused
persons before the learned Chief Judicial Magistrate, Chatra. On 9.4.2017, on
the prayer made by the Investigating Officer, offences under sections 16, 17,
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20 and 23 of the Unlawful Activities (Prevention) Act, 1967( hereinafter referred
to as the U.A.P. Act for the sake of brevity) were added. Since the offences
involved a scheduled offence, in exercise of powers conferred under section 6
(3) read with section 8 of the National Investigation Agency Act 2008, the
Central Government vide order dated 13.2.2018 had directed the National
Investigation Agency to take up the investigation of the case, consequent to
which, Tandwa P.S. Case No. 02 of 2016 was re-registered as N.I.A. Case
No.RC-06/2018/NIA/DLI.
6. The first supplementary charge sheet bearing Charge sheet No.32/18
was filed by the NIA on 21.12.2018 against several accused persons but the
name of the appellant did not figure in the same. However, in the second
supplementary chargesheet, the name of the appellant was inserted as an
accused (A-20).
7. It has been submitted by Mr. Sumeet Gadodia, the learned counsel for
the appellant, that the FIR of Tandwa P.S. Case No. 2 of 2016 prima facie
contains allegations that TPC used to extort levy from coal traders, coal
transporters and contractors by obstructing/hindering the smooth
supply/transport of coal to coal purchasers/power plants and the involved coal
tradesman/contractors made extortion payments to TPC. It has been submitted
that the modus operandi of collection of levy has been reiterated in the second
supplementary chargesheet and a reading of paragraph 17.4 of the second
supplementary chargesheet would indicate that collection of extortion money
was systematically organized from power companies directly or through D.O.
holders, transporters and village committee members to TPC operatives and
loaders. Infact the victim of extortion as per the second supplementary
chargesheet are the coal traders, transporters, D.O. Holders, power generating
companies etc. So far as the present appellant is concerned, Mr. Gadodia has
stressed that the allegations are of conspiring with the members of TPC for
smooth running of the business. The entire facets of the case would highlight
the fact that the appellant was prevented by the TPC operatives from running
the business smoothly and his livelihood and security were threatened, which
is indicative of the appellant being a victim to the extortionists. It has been
submitted that the second supplementary chargesheet cannot be read in
isolation and all the reports submitted by the investigating agency have to be
read conjointly and in such context he has referred to the case of Luckose
Zachariah @ Zak Nedumchira Luke and others Vs. Joseph Joseph and
others reported in (2022) SCC Online SC 241.
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Mr. Sumeet Gadodia furthering the case of the appellant has submitted
that NIA has primarily relied upon the statement of the witnesses including that
of Sudhanshu Ranjan @ Chhotu Singh who had turned approver though a
perusal of the said statements reveal that except Govind Kishore Khandelwal,
the statements of the other witnesses are either hearsay or have named
Govind Kishore Khandelwal as the person who had acted on the instruction of
the appellant. Learned counsel has drawn the attention of the Court to the two
statements of Govind Kishore Khandelwal recorded under section 161 Cr.P.C.
and 164 Cr.P.C. which according to him are contradictory to each other.
The role enacted by Sudesh Kedia and Sanjay Jain in the entire episode
have also been enshrined by the learned counsel while submitting that both
interacted with the TPC operatives at the ground level, held meetings, paid
levy to TPC, CCL and village committees and Sanjay Jain more specifically
acted as a conduit between TPC operatives and coal transporters as well as
coal purchasers and both the said accused have been granted bail by the
Hon'ble Supreme Court and a Coordinate Bench of this Court respectively. The
payment of levy of Rs.30,00,000/- by the appellant as alleged, even if taken to
be true, would not , according to Mr. Gadodia, tantamount to terror funding.
Referring to the counter affidavit filed by the NIA, which has coined the phrase
"mutual collusive economic interest", Mr. Gadodia has submitted that the
payment of levy to TPC and others cannot be indicative to mean collusion on
the part of the appellant with the TPC operatives for mutual gain since the
money which was being paid was extorted from the appellant and other
businessmen carrying on their trade in the area and the same was done only
for the purpose of smooth running of the business. In this context, Mr. Gadodia
has referred to the provisions of the U.A.P. Act. and has submitted that neither
Section 15 nor Section 17 would be applicable to the case of the appellant.
Magnifying his argument, Mr. Gadodia has submitted that Section 15 of the
U.A.P. Act contemplates an aggressor and a victim and if read collectively with
Section 17 of the Act, it would imply a voluntary act but in the case of the
appellant, it clearly appears that the funds were provided under compulsion.
Mere providing of extortion money cannot be termed as abetting a terrorist act
as the appellant has not instigated the operatives of the TPC and/or has not
entered into any conspiracy with one or more operatives of TPC in committing
a terrorist act. It has been submitted that even as per the NIA, TPC was
extorting money from coal transporters and thus the payment of extortion
money would also not amount to "intentional aiding" the terrorist act and hence
section 18 of the U.A.P. Act is also not made out.
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Mr. Gadodia continuing further has stated that the solitary allegation
against the appellant is of payment of Rs.30,00,000/- to the TPC operatives for
the smooth running of the business. While reiterating the judgment passed in
the case of Suresh Kedia Vs. Union of India reported in (2021) 4 SCC 704, learned
counsel has submitted that the Hon'ble Supreme Court had clearly held that
payment of extortion money does not amount to terror funding. Drawing the
attention of the court to the orders passed by the Hon'ble Supreme Court in
Misc. Application No. 466 of 2022 dated 25.2.2022 and 9.3.2022, Mr. Gadodia
has submitted that those orders in letter and spirit demonstrates the recognition
that the case of the appellant is on similar footing to that of Sudesh Kedia if not
better. Mr. Sumit Gadodia on the parameters delineated by him and as noted
above has prayed for setting aside the order dated 8.3.2022 passed in Misc.
Application No. 328 of 2022 and consequently grant bail to the appellant.
8. Mr. Vikramjit Banerjee, learned Addl. Solicitor General of India, has
submitted that the TPC operatives raised funds in collaboration with the
contractors in coal mine areas to expand their armed cadre and for
procurement of weapons, ammunitions and explosives for carrying out
subversive activities. The Amrapali and Magadh Coal areas are the main
source of income of the TPC. It has been submitted that though the appellant
is not named in the FIR but in course of investigation, the oral and documentary
evidence established that the appellant, who has been arrayed as A-20 in the
second supplementary charge sheet being the Vice President of B.K.B.
Transport had conspired with another accused-Prem Vikash @ Mantu Singh,
who was closely associated with the top rung of TPC leaders and used to extort
levy from coal transporters/contractors and raised funds for the terrorist gang.
It has been submitted that the appellant provided an amount of Rs.30,00,000/-
to Akraman @ Netajee @ Ravindra Ganjhu, which was paid in three
installments through his staff member-Govind Kishore Khandelwal. Mr.
Banerjee has submitted that the appellant had not cooperated with the
investigating agency and had evaded to give a satisfactory reply regarding his
involvement and the involvement of others. Submission has been advanced
that the prosecution of the appellant is not only based upon the statement of
Govind Kishore Khandelwal but also on the basis of other corroborative
evidence which indicates that the appellant had himself embroiled in
conspiracy with the other co-accused persons. In the search conducted in the
office as well as the residential premises of the appellant on 9.1.2018, a large
number of digital exhibits were seized, which were subjected to forensic
examination in C-DAC,Thiruanantapuram. Referring to the statements of
protected witness No. 'D', it has been submitted that Govind Kishore
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Khandelwal was present in a meeting held with Akraman Jee, Regional
Commander of TPC at Murtiyand Forest area and he as a representative of
the appellant had handed over the money to Akraman Jee. Govind Kishore
Khandelwal in his statement had accepted the fact that he had handed over
Rs.30,00,000/- to Akraman Jee on the directions of the appellant. Mr. Banerjee
has also referred to the statement of the driver of the appellant namely Shankar
Munda as well as the statement of the approver Sudhanshu Ranjan @ Chhotu
Singh under section 306 of Cr.P.C. Augmenting his submission that judicial
precedents cannot be followed as a statute and has to be applied to the facts
of each case, learned Additional Solicitor General of India has referred to the
case of Padma Sundara Rao Vs. State of Tamilnadu reported in (2002) 3
SCC 533, wherein it has been held as follows:-
"9. Courts 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. There is always peril in treating
the words of a speech or judgment as though they are words in a
legislative enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a particular case,
said Lord Morris in Herrington v. British Railways Board.
Circumstantial flexibility, one additional or different fact may make
a world of difference between conclusions in two cases".
9. In such context, reliance has also been placed in the case of Bharat
Petroleum Corporation Limited Vs. N.R. Vairamani reported in (2004) 8
SCC 579 and the paragraph relied upon is quoted hereunder:-
"9. Courts 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. Observations of courts are neither to be read
as Euclid's theorems nor as provisions of a statute and that too taken
out of their context. These observations must be read in the context in
which they appear to have been stated. Judgments of courts are not to
be construed as statutes. To interpret words, phrases and provisions of
a statute, it may become necessary for judges to embark into lengthy
discussions but the discussion is meant to explain and not to define.
Judges interpret statutes, they do not interpret judgments. They interpret
words of statutes; their words are not to be interpreted as statutes. In
London Graving Dock Co. Ltd. v. Horton2 (AC at p. 761) Lord
MacDermott observed: (All ER p. 14 C-D)
"The matter cannot, of course, be settled merely by treating the
ipsissima verba of Willes, J., as though they were part of an Act of
Parliament and applying the rules of interpretation appropriate thereto.
This is not to detract from the great weight to be given to the language
actually used by that most distinguished judge,..."
10. In Home Office v. Dorset Yacht Co.3 (All ER p. 297g-h) Lord Reid
said, "Lord Atkin's speech ... is not to be treated as if it were a statutory
definition. It will require qualification in new circumstances". Megarry, J.
in Shepherd Homes Ltd. v. Sandham (No. 2)4 observed: "One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board5 Lord Morris said: (All ER p. 761c) 7 Cr. Appeal (D.B.) No. 208 of 2022 "There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT5-a, AIR p. 688, para 19) "19. ... Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
* * * "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
10. According to Mr. Banerjee, the evidence collected against the appellant clearly reveals that the appellant had connived/conspired with the operatives of TPC in carrying out their mutual collusive, economic intent for the benefit of their respective businesses. The amount provided by the appellant was with the knowledge that such funds will be used by the terrorist gang for purchase of arms and ammunitions for the furtherance of terrorist activities. He has referred to section 43(D)(5) of the U.A.P. Act while submitting that a duty is cast upon the court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie proved or not. The judgement passed in the case of " Sudesh Kedia" by the Hon'ble Supreme Court would not be applicable primarily for the reason that a prima facie case was etched out at the time cognizance was taken and the challenge made to the said order by the appellant being dismissed by this Court in Cr. Appeal ( DB) No. 71 of 2020 and which was affirmed up to the Hon'ble Supreme Court. Reference has also been made to the case of National Investigation Agency Vs. Zahoor Ahmad Shah Watali reported in (2019) 5 SCC 1.
11. We have heard the rival submissions and have also perused the various affidavits as well as the voluminous compilations submitted by the respective counsels.
12. The present appellant has been arrayed as A-20 in the second supplementary chargesheet, though in the FIR and the first supplementary charge sheet, his name did not figure. Paragraph 17.12 of the second 8 Cr. Appeal (D.B.) No. 208 of 2022 supplementary chargesheet demarcates the role of the appellant, which reads as under:-
"17.12.Role and activities of/offences established against Vinit Agarwal ( A-20) Vinit Agarwal (A-20) is the Vice President of M/s B.K.B. Transport and he paid levy to the tune of rupees 30 lakhs to members of terrorist gang TPC including Akraman ( A-14). Oral evidence establishes that A-20, colluded with members of terrorist gang, TPC and others and abetted/promoted/thereby strengthened TPC by criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co-accused Premvikas @ Mantu Singh. (A-11) and Akraman(A-14) for smooth running of his business. Thereby, it is established that A-20 criminally conspired with A-11 and A-14 and committed offences under sections 120 B of IPC r/w section 17of the UA(P) Act 1967 and substantive offences under Sections 17 and 18 of the UA (P) Act, 1967, section 17 of the CLA Act and Section 201 of IPC.
13. The role of the present appellant based on the second supplementary chargesheet can be summed up in the following manner:-
(i) He had paid levy to the tune of Rs.30,00,000/- to the members of the terrorist gang-TPC.
(ii) The appellant had colluded with Prem Vikas @ Mantu Singh and Akraman with an intent to raise funds for the terrorist gang-
TPC and thereby has strengthened TPC by criminal conspiracy for smooth running of his business.
Since Sudesh Kedia and Sanjay Jain have been granted bail, we feel it necessary to refer to the allegations against them. Sudesh Kedia has been arrayed as A-19 and his name figures in the second supplementary chargesheet at paragraph 17.11 in the following manner:-
"17.11 Role and activities of / offences established against Sudesh Kedia (A-19): Sudesh Kedia (A-19) is the proprietor of M/s Essakay Concast & Minerals Pvt. Ltd. and his transporting company was engaged for transporting of coal on behalf of GVK Power and Godavari Commodities. He used to attend meetings with TPC leaders and had paid levy to TPC, CCL and village committee for smooth running of business in Amrapali and Magadh collieries. He used to pay Rs. 200/- @ tonne levy to TPC leader Kkraman (A-14), CCL employees and Village Committee members namely Amlesh Das, Arvind Singh and Triveni Yadav. Sudesh Kedia used to send money through his current account for making payment to village Committee and CCL and cash to Akraman (A14), TPC. Therefore, it is established that A-19, colluded with members of terrorist gang, TPC, and others and abetted / promoted / thereby strengthened TPC in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the above said terrorist gang through co- accused Bindu Ganjhu (A-5), Subhan Mian (A-7), Ajit Kumar (A-10), Prem Vikas @ Mantu Singh (A-11) and Akraman (A-14) for smooth running of his business. He possessed Proceeds of Terrorism in the form of cash amounting to Rs. 9,95,000/- Indian currency, was seized from his residential premises and demonetized Indian currency to face value of Rs. 86,000/- were seized form his office 9 Cr. Appeal (D.B.) No. 208 of 2022 cum residential premises. Thereby, it is established that A-19 criminally conspired with A-5, A-7, A-10, A-11 and A-14 and committed offences under section 12B of IPC r/w sections 17 of the UA(P) Act 1967 and substantive offences under Sections 17, 18 and 21 of the UA(P) Act 1967 & Section 17 of the CLA Act, 1908."
14. The name of Sanjay Jain figures as A-9 in the first supplementary chargesheet and the allegations against him reads as follows:-
"17.20 Role and activities of / offences established against Sanjay Jain (A-9): Therefore, as per the averments made hereinabove / in the pre-paragraphs, it is established that he was working as General Manager in M/s Adhunik Power and Natural Resources, Kandra, Saraikela Kharsawan, Jharkhand and after making payment through RTGS mode to coal transporters against work orders, he used to collect / receive back cash @ Rs. 200/- per MT from the transporters for the purpose of paying to TPC operatives including A-5, A-11 and A-14 for smooth functioning of the business concern and he used to raise levy for TPC on the direction of A14. He was closely associated with the operatives of TPC and thereby became member of the terrorist gang as he was acting as conduit in between TPC and coal transporters and Coal purchasers for facilitating TPC in extortion of levy and abetted in raising of funds for the terrorist gang. E-Mails were recovered at his instance which establish that the said accused was paying levies to various ends including Village committee members, CCL, weigh bridge, TPC and as such was deeply involved / associated with co-accused persons in the commission of instant crime and conspiracy. Therefore, it is established that Sanjay Jain (A-9), colluded with members of terrorist gang / unlawful association TPC, proscribed by Government of Jharkhand and others and abetted / solicited / assisted in the operations / management of TPC in criminal conspiracy with members of the terrorist gang including A-5, A-11 and A14 and with other accused transporters A-7 with intent to aid the above said terrorist gang collected funds from illegitimate sources through extortion from the contractors / coal trader / transporters and thereby conspired with co-accused for terrorist act. Thereby accused Sanjay Jain (A-9) committed offences under Sections 120B r/w 384, 414, 109 of the IPC, sections 17, 18 and 20 of the UA(P) Act, section 17 of the CLA Act, 1908."
15. The role played by Sudesh Kedia can be summed up in the following manner:-
(i) He used to attend meeting with TPC leaders and had paid levy to TPC, CCL and village committee members.
(ii) Sudesh Kedia used to send money through his current account for making payment to the village committees and CCL in cash to Akramanji (A-14).
(iii) The proceeds of terrorism in the form of cash of Rs.9,95,000/- was seized from his residential premises and demonetized cash of Rs.86,000/- was seized from his office cum residential premises.
(iv) He had colluded with members of the terrorist gang TPC and others and had strengthened TPC in criminal conspiracy with members of the terrorist gang with an intent to raise funds for the terrorist gang through co-accused-10
Cr. Appeal (D.B.) No. 208 of 2022 Bindu Ganjhu, Subham Mian, Ajit Kumar, Prem Vikash @ Mantu Singh and Akraman for smooth running of the business.
So far as Sanjay Jain is concerned, he seems to have essayed the role of a conduit between TPC, Coal Transporters and Coal purchasers. He was directly involved in making payment of levy to the terrorist organization and the others connected with such organization. It would thus appear that Sanjay Jain was also operating at the ground level and was facilitating the payment of levy to the various stake holders. The common allegation against the present appellant and Sudesh Kedia seems to be the payment of levy to the TPC operatives apart from others who were connected to the terrorist gang in various capacities and of entering into a conspiracy with members of the terrorist gang with an intent to raise funds to strengthen TPC. Both were involved in such activities for the smooth running of the business. The allegation against the appellant and Sudesh Kedia seems to be paradoxical as on the one hand they are alleged to be conniving with the members of the terrorist gang to strengthen TPC while on the other such act is being indulged into for the smooth running of the business.
16. We now venture to consider the evidence of various witnesses.
Protected witness No. "D" has stated that on behalf of Adhunik Power Limited at Gamharia near Tata Jamshedpur, Sanjay Jain used to attend meetings conducted by Akramanji who worked on behalf of Brajesh Ganjhu. The Hindalco Coal Trading Company work is looked after by Sonu Agarwal but his staff Rajendra Saw used to attend the meetings. Indraj Bhadauria of Godavari Commodities Company of Kolkata gave his trading work to Vijay Dhanuka, Gopal Complex, Ranchi and Sudesh Kedia near Mount Motors Ranchi. He has also stated that in the month of February, 2016 the Truck Association had called for an indefinite strike for increasing the fare of trucks. A meeting was called by Akraman and it was attended by Sanjay Jain amongst others. In February, 2017 another indefinite strike was called due to increase in fuel prices. Due to interference of Akraman the strike was called off. Another meeting was held in the presence of DO holders Sanjay Jain, Sudesh Kedia and others and at the intervention of the members of TPC all had agreed to a 10% hike in fares. This witness however has not whispered about the involvement of the appellant at any point of time.
Shankar Munda has been examined as P.W-177, who has disclosed that he had started driving the Bolero vehicle of Govind Khandelwal and in February, 2017 on one day, the date of which he does not remember, Govind 11 Cr. Appeal (D.B.) No. 208 of 2022 Khandelwal had gone to the office of the appellant and had returned with a bag apart from the school bag he usually carried which contained file etc. On the next day, Govind Khandelwal had disclosed that the appellant had given some money, which is to be handed over to Akraman. On the same day, he had taken Govind Khandelwal to Bagra More and after sometime, Govind Khandelwal went towards the forest check post with the bag. After twenty minutes, he returned back but the bag was not with him. A similar incident had again happened in July, 2007.
A similar statement has been given by P.W-178-Chhotu Turi relating to an incident which occurred in May, 2016, in which Govind Khandelwal had disclosed about handing over some money to Akramanji, which was sent by the appellant. He has also disclosed the manner in which the money was handed over.
The statement of Govind Khandelwal was recorded under section 161 Cr.P.C. in which he has stated that he had started working for B.K.B. Company in 1998 and was appointed as a Field Manager in 2001. In June, 2018, a meeting was held in the office of S.D.O., Simaria which he had attended on behalf of B.K.B. Transport Company, in which various government officials as well as the President of Hyva Association, President of Truck Owners' Association and representatives of Transporters as well as Owners of Trucks were present, in which a proposal was put up to open an account in the name of "Amrapali Bisthapit Samittee", to which all the transport contractors shall contribute @ Rs.15/-per M.T. Since the meeting did not fructify into any positive result, another meeting was held, which also did not yield any result. He has stated that a list of 300 villagers with their bank accounts were handed over to B.K.B. Transport Company on 15.8.2018 in the name of the villagers. B.K.B. Company had paid the money to 266 villagers @ Rs.2195/- per villager. The amount of Rs.30,00,000/- was given in the form of levy through this witness to Akramanji in three installments. The amount was paid on the direction of the appellant so that no difficulties are faced during coal transportation.
The statement of Govind Kishore Khandelwal has also been recorded under section 164 Cr.P.C. He has stated that B.K.B. Transport got an order of transporting thirty lakh tons of coal from Amrapali Project to Banadag, Hazaribag Railway Siding. The transportation work was started in April, 2016, for which 200-250 vehicles were engaged. He has stated that from time to time Mantu Singh @ Prem Vikash, Bindu Ganjhu and TPC Commander Netaji @ Akramanji demanded levy and threatened that if levy is not paid, there will be interruptions in transportation. When this fact was informed to the appellant, 12 Cr. Appeal (D.B.) No. 208 of 2022 the appellant had given him an amount of Rs.10,00,000/- in cash to be handed over to Akramanji with an assurance that there should not be any hindrance in the transportation. The said amount was handed over to 'Netaji' by this witness. He has stated that further on two occasions, Rs.10,00,000/-each were handed over to this witness by the appellant for giving it to Akramanji to ensure that there is no obstacle in the transportation work.
The approver's statement of Sudhansu Ranjan @ Chhotu Singh under section 306 Cr.P.C. was recorded on 10.01.2020. He has stated that he was lifting and transporting coal in Amrapali Project and Rs. 254 Per Ton was being given to the committee through the staffs of Vishnu Agarwal. In the meantime, due to a drop in demand of coal his transportation work got stalled and he initiated a dialogue with Adhunik Company where he came to know that the entire work in the project is looked after by Sanjay Jain and Ajay Singh. He had called up Mahesh Agarwal once or twice who had advised him to take permission from "Neta Ji" and only after permission is granted he will be given work. He had thereafter approached the Manager of BKB Transport Company who had advised him to intimate "Neta Ji" through the owner of BKB Transport Company Vineet Ji and then only he can get some work. He also came to know that the members of the committee used to do the work for Sudesh Kedia whose company "S Kedia" and "Sky Minerals" were engaged in the project.
Sudhanshu Ranjan @ Chhotu Singh has further disclosed that he had come to know that Mahesh Agarwal along with Mahesh Verma had come to Lawalong and held a meeting with Akramanji. When he started work after six months the price of coal had increased and there was a demand by the companies that the rate charged by the committee at Amrapali and Magadh should be Rs. 200/- per ton at par with what is charged by the committee at Piprawar consequent to which a meeting was held in which Mahesh Agarwal had participated and after talking with "Neta Ji" the rate was whittled down to Rs. 200/- per metric ton. He has stated about Mahesh Agarwal, Sudesh Kedia, Sanjay Jain, Vineet Agarwal (appellant), Govind Khandelwal and Ajay Singh keeping the accounts of Magadh Amrapali Committee and if necessary they used to remove the obstacles by meeting with TPC operatives Mukesh Ji, Bhikan Ji, Brajesh Ji, Akraman Ji, Kohram Jee, Anishchay Ji and Karampal Ji. Sudhanshu Ranjan @ Chhotu Singh has also disclosed that the owner of the various companies, Sonu Agarwal, Vishnu Agarwal, Mahesh Agarwal, Sudesh Kedia, Vineet Agarwal (appellant) along with Govind Khandelwal, Sanjay Jain and Ajay Singh had full knowledge that the levy which was extracted by the 13 Cr. Appeal (D.B.) No. 208 of 2022 TPC was used to purchase arms and those persons are involved in anti national activities.
The evidence of Sudhanshu Ranjan @ Chhotu Singh as Witness No. 2 has been recorded on 28.09.2021 and he has basically reiterated his 306 Cr.P.C. statement recorded on 10.01.2020.
17. From the statements of the witnesses, as referred to above, the common factor, which emerges, is the payment of levy to Akramanji of an amount of Rs.30,00,000/- by way of installments at the behest of the appellant. The said amount was paid as a deterrent to disturbances in transportation activities as the TPC operatives had issued threats to create hindrance in transportation if the levy amount was not paid. The payment of levy of Rs.30,00,000/- by the appellant as alleged to TPC was not a voluntary act on the part of the appellant rather an act of compulsion for smooth running of the business. In People's Union For Civil Liberties Vs. Union of India and others reported in (2004) 9 SCC 580, it was held as follows:-
"48. But the petitioners' apprehension regarding the absence of mens rea in these sections and the possibility of consequent misuse needs our elucidation. It is the cardinal principle of criminal jurisprudence that mens rea element is necessary to constitute a crime. It is the general rule that a penal statute presupposes mens rea element. It will be excluded only if the legislature expressly postulates otherwise. It is in this context that this Court said in Kartar Singh case5 (at p. 645, para 115 of SCC) that "unless a statute either expressly or by necessary implication rules out 'mens rea' in case of this kind, the element of 'mens rea' must be read into the provisions of the statute".
18. It would appear therefore that to constitute an offence, there has to be the presence of intent. If the intent is not proved, there cannot be a mens rea for committing an offence. Mere indulging in payment of levy for the purposes of smooth running of business cannot lead to an inference regarding presence of an intent so far as the present appellant is concerned.
19. Before proceeding further we may now embark to consider the various provisions of the UAP Act in order to evaluate the allegations levelled against the appellant.
Section 17 of the UA(P) Act reads as follows:
[17. Punishment for raising funds for terrorist act. --Whoever, in India or in a foreign country, directly or indirectly, raises or provides funds or collects funds, whether from a legitimate or illegitimate source, from any person or persons or attempts to provide to, or raises or collects funds for any person or persons, knowing that such funds are likely to be used, in full or in part by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist to commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such act, shall be punishable with imprisonment for a term which shall not be less than five 14 Cr. Appeal (D.B.) No. 208 of 2022 years but which may extend to imprisonment for life, and shall also be liable to fine.
Explanation.--For the purpose of this section,--
(a) participating, organising or directing in any of the acts stated therein shall constitute an offence; (b) raising funds shall include raising or collecting or providing funds through production or smuggling or circulation of high quality counterfeit Indian currency; and
(c) raising or collecting or providing funds, in any manner for the benefit of, or, to an individual terrorist, terrorist gang or terrorist organisation for the purpose not specifically covered under Section 15 shall also be construed as an offence.]"
Section 17 mentions about "terrorists organization" "terrorist gang" and "terrorist act". A "terrorists organization" has been defined in Section 2 (n) and it reads as "terrorist organization means an organization listed in the schedule or an organization operating under the same name as an organization so listed."
Terrorists gang as per Section 2 (l) means "any association, other than terrorist organization, whether systematic or otherwise, which is concerned with, or, involved in, terrorists act." The definition of the term "terrorist act" finds place at Section 15 of the Act and it reads as under:
[15. Terrorist act. [(1)] Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security, [economic security] or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,-
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause--
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property; or
(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country;or [(iii-a) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or]
(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or
(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or [an international 15 Cr. Appeal (D.B.) No. 208 of 2022 or inter-governmental organisation or any other person to do or abstain from doing any act; or] commits a terrorist act.
[Explanation.--For the purpose of this sub-section,--
(a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;
(b) "high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates compromises with the key security features as specified in the Third Schedule.] [(2) 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.]
20. Section 17 is a penal provision aimed at a person who raises or provides fund or collects fund or an attempt made in such context with a knowledge that such funds are likely to be used in full or in part by a terrorist organization or by a terrorist gang or by an individual terrorist to commit a terrorist act. The tenor of the said provision indicates a voluntary act by an individual in raising, providing or collecting funds for facilitating an act of terrorism. Section 15 (1)(a)(iii) envisages a terrorist act which can cause or likely to cause disruption of any supplies or services essential to the life of the community in India or in any foreign country and this provision has also been relied upon by the NIA, the reason being the disruption of supply of coal on account of the nefarious activities of the TPC. In fact, on the contrary, if the allegations made by the Investigating Agency are considered, some of the individuals at work at the ground level seems to have smoothened out the transportation of coal though at the price of being a victim of extortion and with an object for smooth running of the business.
21. Section 15 of the UAP Act also contemplates threat to security which also includes economic security which has been defined in Section 2(ea) and which also includes livelihood security and a glance at the said provision would not define the role of the appellant as an aggressor as the appellant was merely running his business and was at the receiving end of the extortion threats of TPC.
22. Section 18 of the UAP Act reads as follows:
"18. Punishment for conspiracy, etc.- Whoever conspires or attempts to commit, or advocates, abets, advises or [incites, directs or knowingly facilitates] the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine."
23. Section 18 of the Act, therefore, contemplates an act of conspiracy or an attempt at or an abetment, advise or incitement, direction or knowingly 16 Cr. Appeal (D.B.) No. 208 of 2022 facilitating the commission of a terrorist act. Section 107 of the IPC defines "Abetment of a thing" which envisages that a person abets the doing of a thing if he instigates any person for doing that thing or conspires with one or more persons for doing that thing or intentionally aids by any act or illegal omission the doing of that thing.
24. The appellant has been alleged to have conspired, aided and abetted the payment of levy to the TPC operatives. However, from the entire gamut of the allegation, there does not seem to be any instigation at the behest of the appellant or any web of conspiracy weaved by the appellant with the TPC operatives. Section 18 of the UAP Act also speaks of "knowingly facilitating"
while Section 107 of the IPC includes "intentionally aids" but from the outcome of the investigation it cannot be deciphered as to how and in what manner extorting of levy would amount to aiding or abetting a terrorist act.
25. The aforesaid findings is further buttressed by the modus operandi adopted by the TPC which finds place in the first supplementary charge-sheet and which reads as under:
"Therefore, from above it surfaces that the modus operandi of the TPC is that they initially blocked the mining process in the Amrapali and Magadh area and threatened the locals and CCL officials and contractors. Then as part of a well planned conspiracy, they formed the Village Committees with their own men in the forefront in Amrapali and Magadh Coal projects of Jharkhand to start the mining process. Subsequently, they imposed a levy amount on coal transportation in the name of loading charges. Some amount does go towards loading charges but a major share of it goes to the TPC and their stooges in the village committee.
The coal purchasing companies and others purchase coal through auction from the CCL and then engage transport companies for transportation of coal. It is at this level that the levy is imposed of which the major share goes to the TPC. The levy amount is drawn in cash by these transport company owners and supplied to the TPC which carries its activities in that area. Occasionally, the TPC leaders like A-14 and A-15 used to call for secret meetings of the transporters and coal purchasing companies and instruct them to provide funds timely and in an organized manner."
In the second supplementary charge-sheet, in the concluding part of para 17.4 the same thing is reflected which reads as under:
"Thus, collection of extortion amount was systemically organized from the power company directly or through DO holders, transporters, village committee to TPC operatives and leaders."
26. In the backdrop of the aforesaid provisions and the revelations made by the protected witnesses, we may now refer to the case of "Sudesh Kedia versus Union of India" (supra) wherein it was held as follows:
"13.1. A close scrutiny of the material placed before the Court would clearly show that the main accusation against the appellant is that he 17 Cr. Appeal (D.B.) No. 208 of 2022 paid levy/extortion amount to the terrorist organisation. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organisation have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The appellant is carrying on transport business in the area of operation of the organisation. It is alleged in the second supplementary charge-sheet that the appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the appellant conspired with the other members of the TPC and raised funds to promote the organisation. 13.2. Another factor taken into account by the Special Court and the High Court relates to the allegation of the appellant meeting the members of the terror organisation. It has been held by the High Court that the appellant has been in constant touch with the other accused. The appellant has revealed in his statement recorded under Section 164 CrPC that he was summoned to meet A-14 and the other members of the organisation in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the appellant met the members of the organisation.
13.3. An amount of Rs 9,95,000 (Rupees nine lakh and ninety-five thousand only) was seized from the house of the appellant which was accounted for by the appellant who stated that the amount was withdrawn from the bank to pay salaries to his employees and other expenses. We do not agree with the prosecution that the amount is terror fund. At this stage, it cannot be said that the amount seized from the appellant is proceeds from terrorist activity. There is no allegation that the appellant was receiving any money. On the other hand, the appellant is accused of providing money to the members of TPC.
14. After a detailed examination of the contentions of the parties and scrutiny of the material on record, we are not satisfied that a prima facie case has been made out against the appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the appellant and the trial court shall not be influenced by these observations during trial."
27. In "Sanjay Jain versus Union of India" (supra) it was held as follows:
"44. We are of the opinion that it is not possible to hold that the appellant by his acts, such as, meeting Akraman Jee and making payment to Akraman Jee became a member of TPC."
28. The case of Sudesh Kedia and Sanjay Jain appears to be inferiorly placed than the case of the present appellant. The factual matrix of the case appears to be similar though each accused has been designed with separate roles attributed to them. Therefore the submission advanced by the learned Additional Solicitor General of India while relying on "Padma Singra Rao and "Bharat Petroleum Corporation Ltd." that the judgments rendered in the case of "Sudesh Kedia" and "Sanjay Jain" will not be applicable in the present case, is negated.
29. We now venture to consider the provisions of Section 43-D(5) which creates a bar in grant of bail to an accused. Section 43-D(5) reads as under:
18Cr. Appeal (D.B.) No. 208 of 2022 "(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:
Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under Section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."
30. In "NIA versus Zahoor Ahmad Shah Watali" reported in (2019) 5 SCC 1, it was held as follows:
"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 grounds for believing that the accusation against such person is "prima facie" true. By its 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. Nevertheless, we may take guidance from the exposition in Ranjitsing Brahmajeetsing Sharma, wherein a three-Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail. In paras 36 to 38, the Court observed thus: (SCC pp. 316-17) "36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose.19
Cr. Appeal (D.B.) No. 208 of 2022
38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. ... What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea."
And again in paras 44 to 48, the Court observed: (SCC pp. 318-
20) "44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.
45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.
46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.
47. In Kalyan Chandra Sarkar v. Rajesh Ranjan this Court observed: (SCC pp. 537-38, para 18) '18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court 20 Cr. Appeal (D.B.) No. 208 of 2022 considering a bail application. Still one should not forget, as observed by this Court in Puran v. Rambilas: (SCC p. 344, para 8) "8. ... Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. ... That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated."
We respectfully agree with the above dictum of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. Therefore, we are not in agreement with the argument addressed by the learned counsel for the accused that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondent or his supporters to witnesses in the case. In such circumstances, the court was dutybound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non-
consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. As stated hereinabove, this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the respondent on bail because of the serious allegations of tampering with the witnesses made against the respondent.
48. In Jayendra Saraswathi Swamigal v. State of T.N. this Court observed: (SCC pp. 21-22, para 16) '16. ... The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Jagjit Singh and Gurcharan Singh v. State (UT of Delhi) and basically they are -- the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.'"
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 21 Cr. Appeal (D.B.) No. 208 of 2022 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.
26. Be it noted that the special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. To wit, soon after the arrest of the accused on the basis of the FIR registered against him, but before filing of the charge-sheet by the investigating agency; after filing of the first charge-sheet and before the filing of the supplementary or final charge-sheet consequent to further investigation under Section 173(8) CrPC, until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses, etc. However, once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case."
31. We are conscious of the fact that the order taking cognizance was challenged by the appellant in Cr. Appeal (D.B.) No. 119 of 2020 which was rejected and affirmed up to the Hon'ble Supreme Court. The same though would indicate a strong suspicion as observed in "NIA versus Zahoor Ahmad Shah Watali" but it would not oust the jurisdiction of the court in considering a bail application. The task to convince the court that there are no reasonable grounds for believing that the accusations are prima facie true becomes more onerous in a case of bail without ousting such prayer, irrespective of the stage of the case after charge sheet is submitted as both operate in different spheres and the considerations adopted, too, are different.
32. In fact 'Watali' was considered by the Hon'ble Supreme Court in the case of 'Sudesh Kedia' and it was observed therein that while considering the grant of bail under Section 43-D (5), it is the bounden duty of the court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not.
33. The judgment rendered in "NIA versus Zahoor Ahmad Shah Watali"
(supra) has been considered in the case of "Union of India versus K.A. Najeeb", reported in (2021) 3 SCC 713, wherein it has been held as follows:22
Cr. Appeal (D.B.) No. 208 of 2022 "16. As regards the judgment in NIA v. Zahoor Ahmad Shah Watali, cited by the learned ASG, we find that it dealt with an entirely different factual matrix. In that case, the High Court had reappreciated the entire evidence on record to overturn the Special Court's conclusion of their being a prima facie case of conviction and concomitant rejection of bail.
The High Court had practically conducted a mini-trial and determined admissibility of certain evidence, which exceeded the limited scope of a bail petition. This not only was beyond the statutory mandate of a prima facie assessment under Section 43-D(5), but it was premature and possibly would have prejudiced the trial itself. It was in these circumstances that this Court intervened and cancelled the bail.
17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
The other factors for grant of bail/denial of bail has been enumerated in the following manner:
"18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.
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 wellsettled 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."
34. The charge sheet contains 185 witnesses, 131 documents and 66 materials exhibits and there is no likelihood of the trial being concluded in the near future.
35. The learned court below in its impugned order dated 8.3.2022 has not properly appreciated the materials available on record, specially the fact that 23 Cr. Appeal (D.B.) No. 208 of 2022 some of the co-accused have been granted bail apart from the various provisions of the U.A.P. Act while rejecting the prayer for bail of the appellant.
36. We therefore, on consideration of the entire facets of the case and the submissions advanced by the learned counsels for the respective sides come to a conclusion that we are not satisfied that there are reasonable grounds for believing that the accusation against the appellant is prima facie true and as a consequence to the findings noted above, we hereby set aside the order dated 8.3.2022, passed by Shri Madhuresh Kumar Verma, learned Additional Judicial Commissioner, XVI cum Special Judge, NIA at Ranchi in Miscellaneous Criminal Application No. 328 of 2022 in connection with Special Case (NIA) No. 3 of 2018, arising out of R.C. Case No. 06 of 2018/NIA/DLI.
37. The Hon'ble Supreme Court in the case of the present appellant in Special Leave to Appeal (Crl.) No. 779 of 2022 had extended the interim protection granted by the High Court against the arrest of the appellant for a period of 30 days with a liberty to the appellant to move an application for cancellation of the non bailable warrant and for bail before the trial court. Subsequently the appellant had preferred Misc. Application No. 466 of 2022 in SLP ( Crl) No. 779 of 2022 , in which it was observed as follows:-
"The applicant could be accordingly released by today evening. We also clarify that the protection order granted by this Court to the applicant come to an end on 27th March 2022. This protection would be redundant in case bail is granted by the trial court. In case of an adverse order the appellate court would examine and decide whether the protection from arrest should be extended beyond 27th March, 2022 and the applicant will abide with the decision/outcome of the appeal".
38. This court on the prayer made by the learned counsel for the appellant vide order dated 24.3.2022 had extended the interim protection till 11.4.2022 and since the arguments were concluded on 11.4.2022, the interim protection was again extended for a period of ten days. The appellant at present is enjoying the interim protection granted to him.
39. Since it has been concluded by us that there are no reasonable grounds for believing that the accusation against the appellant is prima facie true, the appellant is accordingly directed to appear before the learned trial court by 21.4.2022 and on his appearance he shall be released on bail on usual conditions to be decided by the learned A.J.C. XVI cum Special Judge, NIA, Ranchi.
40. We make it clear that the learned trial court shall not be influenced while conducting the trial of any of the observation made by us in this order as such observations/findings are restricted only for the purpose of grant of bail to the appellant.
24Cr. Appeal (D.B.) No. 208 of 2022
41. This appeal is allowed.
42. Pending I.A., if any, stands disposed off.
43. Let a copy of this order be sent through "FAX" immediately to the concerned court.
(Rongon Mukhopadhyay, J.) I Agree (Rajesh Kumar, J.) (Rajesh Kumar, J.) High Court of Jharkhand at Ranchi Dated, the 18th day of April, 2022.
Rakesh/NAFR