Gauhati High Court
Crl.A./137/2021 on 27 July, 2022
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
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GAHC010085792021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./137/2021
NATIONAL INVESTIGATION AGENCY (NIA),
MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA,
GUWAHATI, ASSAM,
REP. BY SUPERINTENDENT OF POLICE,
NIA BRANCH OFFICE, GUWAHATI, ASSAM.
......Appellant.
-VERSUS-
RAMNINGLE PAME (A-8),
DAUGHTER OF LATE HAITUNG PAME,
RESIDENT OF GUIGAILONG WARD NO. 2,
TAMENGLONG, MANIPUR,
PRESENT ADDRESS- BABUPARA A-E 29, IMPHAL EAST MANIPUR.
......Respondent.
Advocate for the Appellant : Mr. R.K.D. Choudhury, ASGI.
: Ms. L. Devi, Advocate.
For the Respondent : Mr. S. Dutta, Sr. Adv.
: Ms. A. Sangtam, Adv.
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BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
Date of Hearing & Judgment : 27.07.2022.
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.] Heard Mr. R.K.D. Choudhury, learned Asstt. Solicitor General of India assisted by Ms. L. Devi, learned counsel appearing for the appellant-National Investigation Agency (NIA). Also heard Mr. S. Dutta, learned Senior counsel assisted by Ms. A. Sangtam, learned counsel appearing for the respondent.
2. In this appeal, the appellant-NIA has challenged the order dated 09.02.2021 passed by the learned Special Judge, NIA, Dimapur, Nagaland in I.A. No.332/2020 arising out of R.C.02/2020/NIA-GUW by which the respondent had been granted bail on medical ground as the appellant had been stated to be suffering from Acute Lacunar Infarct with right sided hemiplegia and had been referred to outside the State for neurological consultation and further management on the basis of the report submitted by the Medical Board as per the direction of the Trial Court.
3. Mr. R.K.D. Choudhury, learned ASGI appearing for the appellant submits that if a person is charged under Section 17 of the UA(P) Act, 1967, bail cannot be granted only on the ground of medical condition, unless there is a finding by the Trial Court that accusation Page No.# 3/7 made against the accused is not prima facie true. Thus, if such accusation is prima facie true, there is no scope for enlarging the accused on bail even on medical ground.
4. We are also of the view that the Trial Court could not have granted bail to the respondent purely on medical ground unless there is a finding to the effect that the accusation made against the respondent is not prima facie true as contemplated under Section 43D(5) of UA(P) Act, 1967.
5. In the present case, we do not find any such finding by the Trial Court that the accusation made against the respondent is prima facie not true. Since the accusation/charges made against the respondent are covered under Chapter IV and VI of the UA(P) Act, provisions of Section 43D(5) of the UA(P) Act have to be scrupulously followed, which does not appear to be followed in the present case.
6. For the reasons discussed above, we are inclined to allow the present appeal by setting aside the impugned order dated 09.02.2021 passed by the learned Special Judge, NIA, Dimapur, Nagaland in I.A. No.332/2020 arising out of R.C.02/2020/NIA-GUW for a fresh consideration.
7. Accordingly, we remand the matter to the Trial Court for reconsideration of the bail of the respondent after examining as to whether there are reasonable grounds for believing the accusation against the respondent is prima facie true or not, as expeditiously as possible and pass a fresh order in accordance with law.
8. While not opposing the remand for fresh consideration, Mr. Dutta, learned Senior counsel for the respondent, however, has submitted that there is no allegation by the authorities that the respondent is a member of NSCN(IM). In fact, records would show that Page No.# 4/7 the respondent was merely a negotiator in respect of certain extortion made by the NSCN(IM) to the Company which was engaged in execution of Highway Projects on the National Highway and as such, by any stretch of imagination, the respondent cannot be said to be a member of the terrorist organization. It has been submitted that the respondent was not contributing any money to the terrorist organization, but was merely negotiating between the NSCN(IM) which was demanding money and the Company which was executing the work at the request of the Company and the resident of the nearby villages. Thus, there was no occasion on the part of the respondent to make any financial contribution to NSCN(IM) as she was acting merely a mediator.
9. It has been submitted by learned Senior counsel for the respondent that unless there is a clear intention to make any such contribution voluntarily i.e. an intention to fund or contribute to a terrorist organization, it cannot be said to be an offence as held by the Hon'ble Supreme Court in Sudesh Kedia Vs. Union of India, (2021) 4 SCC 704.
10. In this regard, Mr. Dutta, learned Senior counsel has drawn attention of this Court to para No.13.1 of aforesaid Sudesh Kedia (supra) wherein Hon'ble Supreme Court observed 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 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 organization 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."
Page No.# 5/7 11 It has been submitted by learned Senior counsel for the respondent that the respondent did not make any payment and whatever payment was made at the direction of the respondent was by of a mediator and as such, it cannot be said that the respondent had made any contribution voluntarily with the intention to support or fund the terrorist act. It has been submitted that what the respondent did was merely negotiating between the NSCN(IM) and the Company which was executing the work at the request of the Company and the resident of the villages. Thus, there was no intention on the part of the respondent to make any financial contribution to the NSCN(IM) so as to attract any provisions of the UA(P) Act.
12. It has been submitted by learned Senior counsel for the respondent that the said position of law as reflected in Sudesh Kedia (supra) has been consistently followed by Hon'ble Supreme Court in subsequent decisions.
13. In this regard, Mr. Dutta, learned Senior counsel has submitted that in fact, in a similar situation where a businessman was found to have given money to certain banned Maoist organization, the High Court of Jharkhand at Ranchi had granted bail on the ground that giving of money to the banned organization was for the smooth management of his business and not really to support the acts of the terrorist organization as held in Criminal Appeal (DB) No.222/2019, [Sanjay Jain Vs. The Union of India, through the Superintendent of Police, NIA, dated 01.12.2021] and consequently, the businessman was granted bail in spite of invoking the stringent provisions of UA(P) Act. It has been also submitted that the SLP filed by the Union of India (NIA) against the said decision was rejected by the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No. 4602/2022 (Union of India Vs. Sanjay Jain) on 14.07.2022.
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14. Learned Senior counsel for the respondent further submits that the Hon'ble Supreme Court in Thwaha Fasal Vs. Union of India , [Criminal Appeal No.1302 of 2021 arising out of SLP(Crl.) No. 2415 of 2021, order dated 28.10.2021] had reiterated that mere association with the terrorist organization is not sufficient to attract Section 38 of the UA(P) Act and mere support given for the terrorist organization is not sufficient to attract Section 39 of the UA(P) Act.
In the aforesaid decision in Thwaha Fasal (supra), it was observed that the association and support have to be with the intention or furthering the activities of the terrorist organization. Thus, the Hon'ble Supreme Court has emphasized on the "intention" or the state of mind.
15. In this regard, learned Senior counsel for the respondent has drawn attention to para No.34 of the aforesaid decision in Thwaha Fasal (supra) which reads as follows, "34. Now the question is whether on the basis of the materials forming part of the charge sheet, there are reasonable grounds for believing that accusation of commission of offences under Sections 38 and 39 against the accused nos.1 and 2 is true. As held earlier, mere association with a terrorist is not sufficient to attract Section 38 and mere support given to a terrorist organization is not sufficient to attract Section 39. The association and the support have to be with intention of furthering the activities of a terrorist organization. In a given case, such intention can be inferred from the overt acts or acts of active participation of the accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet. At formative young age, the accused nos.1 and 2 might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI(Maoist) in soft or hard form. Apart from the allegation that certain photographs showing that the accused participated in a protest/gathering organized by an organization allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project active participation of the accused nos. 1 and 2 in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organization. An allegation is made that they were found in the company of the accused no.3 on 30 th November, 2019. That itself may not be sufficient to infer the presence of intention. But that is not sufficient at this stage to draw an inference of presence of intention on their part which is an ingredient of Sections 38 and 39 Page No.# 7/7 of the 1967 Act. Apart from the fact that overt acts on their part for showing the presence of the required intention or state of mind are not borne out from the charge sheet, prima facie, their constant association or support of the organization for a long period of time is not borne out from the charge sheet."
16. Accordingly, the Trial Court will also consider this aspect of "intention" in view of the decisions of the Hon'ble Supreme Court in Sudesh Kedia (supra) and Thwaha Fasal (supra) at the time of reconsideration.
17. As the respondent has been allowed to remain on bail since 09.02.2021, she may be allowed to remain on bail under the same terms and conditions till such consideration is made by the Trial Court and appropriate order regarding the bail of the respondent is passed.
18. Respondent may file additional documents before the Trial Court, if so desires.
19. With the above observations and directions, the present appeal stands disposed of.
JUDGE JUDGE Comparing Assistant