Jharkhand High Court
Santosh Kumar @ Banti Yadav vs National Investigating Agency on 9 November, 2022
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 98 of 2022
---------
Santosh Kumar @ Banti Yadav, S/o Late Vishnudev Yadav, R/o Bhawanipur, Bhagalpur, P.O. & P.S.- Rangra, District- Nawgachhiya Bhagalpur, Bihar.
... ... Appellant Versus National Investigating Agency, New Delhi, NIA Building, Opp. Dyal Singh College Road, CGO Complex, Pragati Vihar, New Delhi, PIN 110003. ... ... Respondent
---------
CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH
---------
For the Appellant : Mr. R.S. Mazumdar, Sr. Advocate Mr. Sanjay Kumar Tiwari, Advocate For the NIA : Mr. A.K. Das, Spl. P.P.
---------
10/09.11.2022 Heard Mr. R.S. Mazumdar, learned Senior Counsel for the appellant and Mr. A.K. Das, learned Spl. P.P. for the NIA.
2. This appeal is directed against the order dated 14.12.2021 passed in Misc. Cr. Application No. 565/2021 (Special NIA Case No. 01/2021/NIA/RNC), arising out of Balumath P.S. Case No. 234/2020 by Sri. Madhuresh Kumar Verma, learned A.J.C-XVI-cum-Spl. Judge, NIA, Ranchi, whereby and whereunder the prayer for bail of the appellant has been rejected.
3. It has been alleged that on 18.12.2020 an information was received at Balumath, Police Station that some unknown persons were burning vehicles and firing indiscriminately near Check-post No. 1 at Tetariakhad Colliery. The miscreants had fired at the Police party that had rushed to the spot and had also burnt 04 trucks, 01 motorcycle and had also injured 04 civilians. From the place of occurrence remnants of burnt vehicles, fragments of a can bomb with wire, spent cartridges, handwritten pamphlets issuing threats to transporters and coal companies involved in mining signed by one Pradeep Ganjhu etc. were found. On inquiry it was revealed that -2- gangster Sujit Sinha and Aman Sao had conspired with Pradeep Ganjhu and his associates namely Santosh Ganjhu (appellant), Pramod Ganjhu and others in disruption of Government work as well as for extortion.
4. Based on the aforesaid allegations Balumath P.S. Case No. 234/2020 was instituted for the offences punishable u/s 147, 148, 149, 353, 504, 506, 307, 427, 435, 386, 387, 120-B, 121-A, 216 of the IPC, Sections 25(1)
(b), 26, 27, 35 of the Arms Act, Sections 3/4 of the Explosive Substances Act, Sections 17 of the CLA Act and Sections 10, 13, 16(1), (b), 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the UAP Act for the sake of brevity).
5. The Ministry of Home Affairs, Government of India in exercise of powers conferred u/s 6(5) read with Section 8 of the NIA Act vide F. No. 11011/01/2020/NIA dated 07.01.2020 directed the National Investigation Agency to take up investigation of Balumath P.S. Case No. 234/2020 which was re-registered as Case No. 01/ 2021/ NIA-RNC. Charge-sheet was subsequently submitted against the appellant and other accused persons.
6. It has been submitted by Mr. R.S. Mazumdar, learned Senior Counsel for the appellant that the predominant allegation against the appellant is of harbouring terrorists. Learned Senior Counsel has referred to Section 212 of the IPC and Section 19 of the UAP Act. In such context, reference has been made to the findings recorded against the appellant in the charge-sheet which is of harbouring Pradeep Ganjhu and Shahrukh Ansari. Stressing on the word "knowing" as appearing in Section 19 of the UAP Act, Mr. Mazumdar, has submitted that there is no iota of evidence collected by the NIA from which it could be fathomed that both Pradeep Ganjhu and Shahrukh Ansari were known to the appellant as terrorists. Absence of such fact would therefore render Section 19 of the UAP -3- Act redundant so far as the appellant is concerned. It has further been submitted that Section 212 of the IPC entails a maximum punishment of five years while u/s 19 of the UAP Act the minimum punishment prescribed is imprisonment for three years which may increase to imprisonment for life and since the appellant has undergone a substantial part of the minimum sentence prescribed under the UAP Act, he deserves to be released on bail. He has referred to Section 43-D(5) of the UAP Act while submitting that the allegations levelled does not make out a prima facie case against the appellant.
7. Mr. A.K. Das, learned Spl. P.P. for the NIA refuting the submissions advanced by Mr. Mazumdar has taken us through the charge-sheet while strenuously pointing out that the appellant was all along aware about Pradeep Ganjhu and Shahrukh Ansari being involved in terrorist activities which circumstances would make Section 19 of the UAP Act squarely applicable in his case which would consequently fasten the embargo upon the appellant in terms of Section 43-D(5) of the UAP Act. The foundation for such submission according to Mr. Das is the fact that the appellant and the other accused persons including Pradeep Ganjhu and Shahrukh Ansari were apprehended by the Police from Pindarcom forest while they were making plans to commit terrorist activities in the Colliery area and several incriminating articles including arms and ammunitions were recovered.
8. We have considered the rival submissions and have also perused the affidavits filed as well as the charge- sheet submitted by the NIA.
9. Though the First Information Report was registered against the appellant under various provisions of the UAP Act as well as under the provisions of the Indian Penal Code, Arms Act, Explosive Substances Act and CLA Act but the charge-sheet was submitted against the -4- appellant u/s 120B, 212 of the IPC, Section 25(1)(b), 26, 35 of the Arms Act and Section 19 of the UAP Act. Therefore, the initial allegation of being a member of a terrorist gang and being involved in terrorist acts seem to have been watered down and primarily restricted to harbouring terrorists. The findings on completion of investigation as recorded in the charge-sheet as against the appellant finds place at paras 17.24, 17.25 and 17.26 which reads as follows:
"17.24 Investigation brought out that on 21.12.2021 (morning), Pradip Ganjhu (A-3) and Shahrukh Ansari (A-21) reached Purnea, Bihar. At Purnea Bus stand they were received by Lankesh Kumar Sao, Advani and two others. Lankesh Kumar took them to his village Gauripur. Here, Pradip Ganjhu changed his name as Prem and Shahrukh as Tiwari Khan. They remained with Lankesh for a week and thereafter shifted with one Pramod Yadav. During stay with Pramod Yadav, they came in contact with one Sharma Yadav, a wanted criminal of that area. On the direction of Aman Sahu, Sharma Yadav provided Rs. 50,000/- to them. Sharma Yadav also handed over 02 AK-47 Rifles to them. Both of them took cellphone snaps holding AK-47 Rifle and sent the same to Aman Sahu through Telegram app. After a couple of days, they went to Moti Yadav @ Sanjiv Kumar, Pramukh of Rangra Prakhand. Here, they were assisted/aided by Prabhat Kumar Yadav @ Dimple Yadav (A-12), Santosh Kumar Yadav S/o Devmuni Yadav (A-13). After some days, Moti Yadav sent them to his associate Santosh Kumar @ Banti Yadav (A-10) at village Bhawanipur, PS Rangra, District Naugachia, Bhagalpur, Bihar. Here, they were also assisted by one Pritam Kumar @ Chiku Yadav (A-12), an associate of Santosh Kumar @ Banti Yadav (A-
10), who was absconding and avoiding his arrest in a murder case. In this period, they were continuously in contact with Aman Sahu on Telegram app.
17.25 Investigation further brought out that during their harbor at the place of Santosh Kumar @ Banti Yadav (A-10), accused Pradip Ganjhu and Shahrukh Ansari purchased two turtle rings from Bhagwati Jewellers, Nangachia with assistance of Kundan Yadav brother of Santosh -5- Kumar @ Banti Yadav (A-10) in January 2021. During the pointing out proceedings in presence of independent witnesses, Pradip Ganjhu (A-3) pointed out the shop of Bhagwati Jewellers at Naugachia. The owner of the shop Sh. Umang Verma also identified to Pradip Ganjhu for whom and his co accused Shahrukh @ Tiwari Khan, he had manufactured two gold turtle rings. One of the turtle ring with receipt of Bhagwati Jewelers was seized from the possession of accused Pradip Ganjhu at the time of his arrest.
17.26 Investigation further brought out that during the absconding period in Bihar, Pradip Ganjhu (A-3) and Shahrukh (A-21) remained in contact with Aman Sahu (A-2). Police was tracking them in district Bhagalpur so they alongwith Santosh Kumar @ Banti Yadav (A-10), Prabhat Kumar @ Dimple Yadav (A-11), Pritam Kumar @ Chiku Yadav (A-12) and Santosh Kumar Yadav (A-13) came to Jharkhand and were hiding in Pindarkom Forest. Babulal Turi (A-8) and his brother Ajay Turi (A-9) also joined them. On 07 February 2021, while they were plotting an another terror incident in Colliery area, they were arrested by Balumath Police with Arms & Amn, Mobile Phones, Sim Cards and a Golden Turtle Ring purchased by Pradip Ganjhu (A-3) from Bhagwati Jewellers."
In the entire charge-sheet, what has transpired against the appellant is of giving shelter to Pradeep Ganjhu and Shahrukh Ansari who were sent to the appellant by Moti Yadav. There is no material of substance to show that the appellant was aware or was "knowing" prior to giving shelter to Pradeep Ganjhu and Shahrukh Ansari that they were involved in terrorist activities though a case has been sought to be made out that the subsequent arrest of the appellant and others including Pradeep Ganjhu and Shahrukh Ansari reveals the nexus between the appellant and Pradeep Ganjhu and Shahrukh Ansari which was the predominant reason for harbouring both the terrorists thus making the awareness of the appellant imperative to the status of those two accused persons. Another factor which has been highlighted in the counter affidavit of the NIA is the extracted data of the mobile phone seized from the -6- possession of the appellant which reveals photograph of weapons and newspaper cuttings related to Sujit Sinha and Aman Sahu gang. None of the factors enumerated above would accentuate the allegations made against the appellant of harbouring terrorists "knowing" the fact that they were terrorists.
10. Mr. Das, learned Special P.P. for the NIA has copiously referred to the case of "NIA versus Zahoor Ahmad Shah Watali" reported in (2019) 5 SCC 1, wherein it has been held as follows:
"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 [Zahoor Ahmad Shah Watali v. NIA, 2018 SCC OnLine Del 11185], 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 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 -7- accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 CrPC) and other material gathered by the investigating agency during investigation."
11. In the case of "Union of India versus K.A. Najeeb"
reported in (2021) 3 SCC 713, the judgment in the case of "Watali" (supra) was considered in the following manner:
"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.
12. The Hon'ble Supreme Court in "Union of India versus K.A. Najeeb" (supra) has further held as follows:
"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.-8-
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 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. Adverting back to the present case it appears from the charge-sheet that 108 witnesses have to be examined apart from a large number of documentary evidence though Mr. Das, submits that all the witnesses cited in the charge-sheet are not necessarily to be examined but considering the fact that the trial has not started as yet it would be unsafe to project a tentative time frame within which the trial will be concluded. The appellant is in custody since 07.02.2021 and has completed a significant part of the minimum sentence if found guilty as envisaged u/s 19 of the UAP Act.
14. The discussions made hereinabove would, therefore, lead to a conclusion that a prima facie case -9- which is the hallmark for denial of bail to the appellant as envisaged in Section 43-D(5) of the UAP Act is not made out against the appellant and coupled with the period of incarceration and the possibility of the trial being concluded in the near future being remote, which factors have not been properly appreciated by the learned court below, we hereby set aside the order dated 14.12.2021 passed in Misc. Cr. Application No. 565/2021 (Special NIA Case No. 01/2021/NIA/RNC), arising out of Balumath P.S. Case No. 234/2020 by Sri. Madhuresh Kumar Verma, learned A.J.C-XVI-cum-Spl. Judge, NIA, Ranchi. The appellant is directed to be released on bail on furnishing bail bond of Rs. 10,000/- (Rupees Ten Thousand only) with two sureties of the like amount each, to the satisfaction of learned Judicial Commissioner-cum-Special Judge, NIA, Ranchi in connection with Misc. Cr. Application No. 565/2021 (Special NIA Case No. 01/2021/NIA/RNC), arising out of Balumath P.S. Case No. 234/2020.
15. This appeal is allowed.
(Rongon Mukhopadhyay, J.) (Ambuj Nath, J.) Alok/-