Jharkhand High Court
Amit Agarwal @ Sonu Agarwal vs Union Of India Through National ... on 18 April, 2022
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 214 of 2022
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Amit Agarwal @ Sonu Agarwal ... ... Appellant
Versus
Union of India through National Investigation Agency,
Dhurwa, Ranchi ... ... Respondent
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Manindra Singh, Senior Advocate
: Mr. Indrajit Sinha, Advocate
For the Respondent-NIA : Mr. Vikramjeet Banerjee, ASGI : Mr. Amit Kumar Das, Special P. P., NIA
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7/18.04.2022 Heard Mr. Manindra Singh, learned senior counsel for the appellant and Mr. Vikramjeet Banerjee, learned Additional Solicitor General of India appearing for the National Investigation Agency.
2. This appeal has been preferred by the appellant against the order dated 10.03.2022 passed by Sri Madhuresh Kumar Verma, learned A.J.C. XVI cum Special Judge, NIA, Ranchi in Misc. Criminal Application No. 335 of 2022 arising out of Special NIA Case No. 03 of 2018 (R.C. Case No. 6 of 2018/NIA/DLI) whereby and whereunder the application for bail preferred by the appellant has been 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 DO holders by creating fear in the name of the 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 Ghanju. 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 -2- constituted on the orders of 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 a 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 loaded Mauser pistol was recovered from the possession of Birbal 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 between Mukesh Ganjhu, Kohramji, Akramanji @ 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 could be given by Pradeep Ram with respect to the cash recovered.
4. Based on the aforesaid allegations Tandwa P.S. Case No. 02 of 2016 was instituted for the offences under Sections 414, 384, 386, 387, 120B of the I.P.C., 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, Kohramji, Akramanji @ Ravindra Ganjhu, Anischya Ganjhu, Deepu Singh @ Bhikan, Bindu Ganjhu @ Bindeshwar Ganjhu and Bhikan Ganjhu. On 10.03.2016 charge sheet was submitted against the other accused persons before the learned Chief Judicial Magistrate, Chatra. On 09.04.2017 on the prayer made by the Investigating Officer offences under Sections 16, 17, 20 and 23 of the Unlawful Activities (Prevention) Act, 1967 (herein after referred to as the -3- UAP Act for the sake of brevity) were added. Since the offences involved a scheduled offence, in exercise of powers conferred u/s 6(3) read with Section 8 of the National Investigation Agency, Act 2008, the Central Government vide order dated 13.02.2018 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 reregistered as NIA Case No. RC-06/2018/NIA/DLI.
5. The first supplementary charge-sheet was submitted by the NIA being Charge Sheet no. 32 of 2018 dated 21.12.2018 against 17 persons under Sections 109, 384, 386, 387, 411, 414 & 120 B of Indian Penal Code, Sections 16, 17, 18, 18 A, 18 B, 20, 21 & 23 of the UAP Act, Sections 25(1-A) (1-B) a of the Arms Act 1957 and Section 15 of the Criminal Law Amendment Act, 1908.
On 10.01.2020, a second supplementary charge-sheet was submitted being Charge Sheet no. 32 A/2018 dated 11.10.2020 against Mahesh Agarwal, Sudesh Kedia, Vinit Agarwal, Amit Agarwal @ Sonu Agarwal (Appellant) and Ajay Kumar @ Ajay Singh under Sections 120B, 201 & 384 I.P.C., Sections 17, 18 & 21 of UAP Act and Sections 17 of Criminal Law Amendment Act, 1908.
6. Mr. Manindra Singh, learned senior counsel for the appellant has submitted that the consistent case of the NIA right from the institution of the FIR to the submission of the second supplementary charge-sheet is that it is a case of extortion. In fact, nothing new has been propagated in the second supplementary charge-sheet except the status of the appellant changing from a victim to an accused. It has been submitted that the allegations of levy, extortion, purchase of arms etc. are included in the first supplementary charge-sheet itself and there is nothing of substance in the subsequent charge-sheet. Learned senior counsel has drawn the attention of the court to the case of "Sudesh Kedia Vs. Union of India" reported in (2021) 4 SCC 704 and "Sanjay Jain Vs. Union of India" in Criminal Appeal (DB) No. 22 of 2019, wherein both the said accused persons have been granted bail. It has been submitted that all the materials on completion of investigation was before the Hon'ble Supreme Court as well as a Coordinate Bench of this Court while considering the prayer for bail of Sudesh Kedia and Sanjay Jain.
-4-Consideration was also made according to Mr. Singh to the meetings held between the members of the business community with members of the terrorist gang. It was on the central theme that the payment was being made for smooth functioning of the business on which it was concluded by the Hon'ble Supreme Court in the case of "Sudesh Kedia"
and by this court in "Sanjay Jain" that no prima-facie case is made out and bail was granted. Mr. Singh, learned senior counsel has stressed upon the fact that the allegations against the appellant have been fished out from here and there whereas propriety demands that a holistic view be taken with respect to the allegations. According to Mr. Singh, the NIA Court had committed an error while rejecting the prayer for bail of the appellant by not appreciating the orders of the Hon'ble Supreme Court and a Coordinate Bench of this Court in the case of Sudesh Kedia and Sanjay Jain respectively. The learned NIA Court is bound to appropriately consider such orders as they are binding precedents and in support of such contention reliance has been placed in the case of "Fuzlunbi Vs. K. Khader Vali and Anr." reported in (1980) 4 SCC 125, and the relevant is quoted hereinunder:
7. We need not labour the point because this Court has already interpreted Section 127(3)(b) in Bai Tahira1 and no Judge in India, except a larger Bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio thereof. The language used is unmistakable, the logic at play is irresistible, the conclusion reached is inescapable, the application of the law as expounded there is an easy task. And yet, the Division Bench, if we may with respect say so, has, by the fine art of skirting the real reasoning laid down "unlaw" in the face of the law in Bai Tahira1 which is hardly a service and surely a mischief, unintended by the Court maybe, but embarrassing to the subordinate judiciary.
10. Glanville Williams in his Learning The Law (10th Edn., pp. 70-72) gives one of the reasons persuading Judges to distinguish precedents as "that the earlier decision is altogether unpalatable to the court in the later case, so that the latter court wishes to interpret it as narrowly as possible". The same learned Author notes that some Judges may "in extreme and unusual circumstances, be apt to #?# seize on almost any factual difference between this previous case and the case before him in order to arrive at a different decision. Some precedents are continually left on the shelf in this way, as a wag observed, they become very 'distinguished'. The limit of the process is reached when a -5- Judge says that the precedent is an authority only 'on its actual facts'."
We need hardly say that these devices are not permissible for the High Courts when decisions of the Supreme Court are cited before them not merely because of the jurisprudence of precedents, but because of the imperatives of Article 141."
The evidence of Sudhansu Ranjan @ Chhotu Singh who had turned approver recorded on 28.09.2021 has been, according to Mr. Singh, extensively relied upon by the NIA to the extent that such statement was not available when the case of "Sudesh Kedia" was considered, but at the same time, this statement was a part of the record when the appeal of Sanjay Jain was heard and considered. Mr. Singh has copiously referred to the affidavit in opposition filed by the NIA before the NIA Court while opposing the prayer for bail of the appellant by submitting that such affidavit is completely silent on the reliance placed in the third statement of Sudhansu Ranjan @ Chhotu Singh. He has also referred to paragraph 14 of the said application which reads thus:
"That in respect to contentions made in paragraph 08, it is submitted that investigation has established that appellant - accused has association with the banned association TPC by means of funding the association. It is evident from the copy of pamphlet seized from the house search of Vipin Mishra dated 09.10.2018. The petitioner has been extending the financial assistance to the terrorist gang for maintaining his monopoly and supremacy in the area. The contents of the pamphlets seized are as - 'Sonu Agarwal, order hai ki Sonu Agrawal ke alawa kisi ka bhi kaam nahi hona chahiye, sare kaam band karo nahi to maar denge."
In respect to the aforesaid, submissions have been advanced that an FIR regarding recovery of pamphlet was lodged which however led to a closure report having found such allegation to be untrue. He has also submitted that perusal of the statement of Sudhansu Ranjan @ Chhotu Singh would demolish the case of the NIA and strengthen the case of the appellant.
In order to project the appellant as a victim, Mr. Singh, learned senior counsel has referred to the basic allegations as enumerated in the first supplementary charge-sheet at paragraph 16.1 and which briefly stated reveals about some locals forming an operating committee in the coal region of Amrapali/Magadh project and the said committee has -6- relation with the banned unlawful association Tritya Prastuti Committee (in short, 'TPC'). Some people of the operating committee were threatening the contractors, transporters, DO holders and coal businessman for extorting/collecting levy in the name of TPC operatives. The modus-operandi of said collection has been highlighted in paragraph 17.5. Learned senior counsel has also referred to the role played by Sudhansu Ranjan @ Chhotu Singh who is said to have come in touch with the appellant who is the owner of M/s. Shree Balaji Pvt. Ltd. The recovery of cash and Singapore Dollars as well as Hongkong Dollars from the residential and office premises have been alleged to which Mr. Singh has replied that the appellant frequently goes abroad and it was quite natural that foreign currencies were recovered and so far as the recovery of huge quantity of cash in Indian currency is concerned, the same was kept for business purposes and cannot be construed to mean 'terror funds'. The findings recorded at paragraph 17.10 of the first supplementary charge-sheet further vindicates the plea of the appellant that he was a victim. Mr. Singh has also highlighted the role played by Sudesh Kedia in the entire incident. Reverting back to the reply of the NIA on the bail application preferred by the appellant, it has been submitted that the NIA also accepts that the role essayed by the appellant was of a conduit for smooth functioning of his own business. As per Mr. Singh, there was an overall failure of governance and in order to ensure livelihood, security and smooth running of the business, the appellant was compelled to pay levy amount to the TPC operatives even if the allegation are taken to be true. Drawing the attention of the court once again to the impugned order dated 10.03.2022, it has been submitted that the learned court below completely misconstrued the order passed in the case of "Sudesh Kedia" as on a comparison to the allegations against Sudesh Kedia and the present appellant, there does not appear to be much of a difference.
7. Mr. Vikramjeet Banerjee, learned ASGI has vehemently opposed the prayer of the appellant and has submitted that the appellant by no stretch of imagination can be said to be a victim of a circumstances. His action suggests that he was an active participant in promoting his business. The pamphlets reveal that he had indulged himself in -7- extortion and several FIRs have been lodged against him though such submission has strongly been refuted by Mr. Indrajit Sinha, one of the co- counsels appearing for the appellant , who has stated that the same being not a part of the charge-sheets cannot be relied upon. According to Mr. Banerjee, the case of the appellant is on an altogether different footing from that of Sudesh Kedia as the involvement of the appellant in facilitating his business being in cahoots with the operatives of the TPC is not protected by the order of the Hon'ble Supreme Court in the case of 'Sudesh Kedia'. It has been submitted that though, the appellant was not named in the FIR, but in course of investigation, various oral and documentary evidences were collected against him. The transport company of the appellant transports coal from Hindalco and he used to arrange cash from local traders and other businessmen for making payments to village committee members and TPC for smooth running of the business. Mr. Banerjee has further submitted that there are enough materials on record to indicate a prima-facie case against the appellant. The recovery of Indian and foreign currencies are proceeds of terrorism as could be detected from the order dated 07.12.2018 passed by the Designated Authority. Learned counsel has also referred to the evidence of some of the witnesses which establishes the nexus between the appellant and TPC operatives. Mr. Banerjee has also made a submission that judicial precedence cannot be followed as a statute and has to be applied to the facts of each case and in such context, he has referred to the case of "Padma Sundara Rao Vs. State of Tamil Nadu" 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."
In the same context, reliance has also been placed in the case of "Bharat Petroleum Corporation Ltd. Vs. N. R. Vairamani" reported in -8- (2004) 8 SCC 579 and the paragraphs relied upon is being quoted hereinunder"
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) "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 -9- 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."
8. We have given our anxious consideration to the submissions advanced by the learned counsels for the respective parties and have also perused the various affidavits as well as the voluminous compilations relied upon by them.
The modus-operandi adopted by the TPC has been mentioned in the first supplementary charge-sheet submitted by the NIA, which reads as follows"
"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 paragraph 17.4, 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."
Paragraph 17.13 of the second supplementary charge-sheet demarcates the role played by the appellant and it reads as follows:
-10-"Sonu Agarwal (A-21) is the proprietor of M/s. Shree Balaji Transport Pvt. Ltd. The said M/s. Balaji Transport Pvt. Ltd. transports coal for Hindalco Co. He used to arrange ash from local traders and other businessmen for making payments of levy to Village committee members and TPC for smooth functioning of his business. It is established that he criminally conspired with co- accused Sudhansu Ranjan @ Chhotu Singh (A-8) for raising funds for terrorist gang TPC on being demanded by Akraman (A-14). The accused A-21 used to collect funds in cash from different traders by showing a Rs. 10 note to traders and the amount to be collected was decided by A-21. Further from the residential premise of A-21, cash amounting to Rs. 7,91,000/- and Singapore Dollar 10,000/- were seized and from office premise of A-21, cash amounting to Rs. 3,72,750/- and Hongkong Dollar 8760/- were seized and the above said cash was confirmed as Proceeds of Terrorism by Designated Authority vide Order no. 11011/08/2018/NIA, Govt. of India dated 07 Dec. 2018. Therefore, it is established that Sonu Agarwal @ Amit Agarwal (A-21), colluded with members of terrorist gang, TPC 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 A-4, A-5, A-7, A- 8, A-10 and A-14 for smooth running of his business. Thereby, it is established that A-21 criminally conspired with co-accused and committed offences under Sections 120 B of I.P.C. r/w Section 17 of the UA (P) Act and substantive offences under Sections 17, 18 and 21 of the UA (P) Act & Section 17 of the CLA Act, 1908."
9. The role of the appellant based on the second supplementary charge-sheet can be summed up in the following manner:
(i) He used to arrange cash from local traders and other businessmen for making payment of levy to the village committee members and TPC for smooth running of business.
(ii) The appellant had conspired with Sudhansu Ranjan @ Chhotu Singh in raising funds for the terrorist gang - TPC.
(iii) From his residential and office premises cash in Indian as well as in foreign currencies were recovered.-11-
10. Since Sudesh Kedia and Sanjay Jain have been granted bail, we feel it necessary to refer to the allegations made against them. Sudesh Kedia has been arrayed as A-19 and his name figures in the second supplementary charge-sheet 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 from his office 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."
The name of Sanjay Jain figures as A-9 in the first supplementary charge-sheet 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 -12- 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."
The role played by Sudesh Kedia can be summed up in the following manner"
(i) He used to attend meetings 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 as well as cash to Akraramjee (A-14).
(iii) The proceeds of terrorism in the form of cash of Rs.
9,95,000/- was seized from his residential premises and demonetised cash of Rs. 86,000/- was seized from his office cum residential premises.
(iv) He had collided with members of terrorist gang - TPC and others and had strengthened the TPC in criminal conspiracy with members of terrorist gang with an intent to raise funds for the terrorist gang through co-accused Bindu Ganjhu, Subhan Mian, Ajit Kumar, Prem Vikash @ Mantu Singh and Akraman for the smooth running of the business.
So far as Sanjay Jain is concerned, he seems to have assumed the role of a conduit between TPC, Coal transporters and coal purchasers. He was directly involved in making payment of levy to the terrorist gang and others connected with such terrorist gang. 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.
-13-11. What can be gathered from the aforesaid is that the appellant also acted as a conduit between the various inter-sections of the terrorist gang as well as the transporters and coal traders. Similar is the allegation against the co-accused persons - Sanjay Jain as well as Sudesh Kedia and all the three appears to have acted with a common purpose which is with respect to smooth functioning of the business and to prevent any impediment regarding such functioning and for the said purpose, they were at the receiving end of the extortion demands of TPC. As regards, recovery of money is concerned, a plausible explanation has been submitted by the learned senior counsel for the appellant and such recovery has to be seen in the context of the entire features of the case and should not be read in isolation. In fact recovery of Rs. 9,95,000/- was also effected from the residential premises of Sudesh Kedia. Much has been said about the pamphlet indicating the desire of the appellant to maintain monopoly and supremacy over his business, but the same seems to be without any basis as there is no allegation that the other players in the field felt threatened by the monopoly as exuberated by the NIA. Moreover, the concerned FIR seems to have culminated in submission of a closure report.
12. We shall now infuse our findings by making reference to the statements of the witnesses who have pointed out the involvement of the appellant and in what capacity.
P.W. 30 is a witness to the search and seizure conducted in the house of the appellant. Another witness to the search and seizure is P.W.
31. P.W. 94 was working as an Office Assistant in the company of Sudhansu Ranjan @ Chhotu Singh namely, Maa Vaishnav Enterprises which was a coal transporting company. He has stated that Chhotu Singh usually did the work of Hindalco through Balaji Roadways Pvt. Ltd. and the appellant is the owner of Balaji Roadways Pvt. Ltd. He has also stated that most of the transporting, lifting, payment by Balaji was used to be made by bank transfers and some amount such as truck advance and payment for Shanti Sah Sanchalan Samiti was done in cash. Some part of the money is supplied to the terror outfit - TPC. During the -14- period 2017 to February 2018, he had collected around Rs. one crore from Balaji Roadways Pvt. Ltd. in 10-12 installments.
P.W. 98 had joined Balaji Coal Transport Company in the year 2013. He has stated that he had paid Rs. twenty five lacs to Rajendra Sahu and Rs. twenty lacs to Chhotu Singh (Approver) in the year 2014.
P.W. 100 is also employed at Balaji Roadways as a Supervisor. He has stated that the appellant used to collect cash through his staff.
P.W. 101 was also a Supervisor in Balaji Transport and he has stated that he used to collect cash from various hardware shops as per the list given by Vishnu Agarwal.
In the statement recorded under Section 164 Cr.P.C. of Protected Witness 'F', he has stated that while transportation work was done by T. D. Enterprises owned by Subhan Mian, Rs. 254 per ton in addition to the transportation charges was transferred in the account of M/s. Shree Balaji Transport Pvt. Ltd. in which Rs. 29 per ton for CCL and Rs. 40 per ton for TPC was being paid by the transport company.
Sudhansu Ranjan @ Chhotu Singh had turned approver and his statement 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 being looked after by Sanjay Jain and Ajay Jain. He had called Mahesh Agarwal once or twice, who had advised him to take permission from 'Netajee' 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 'Netajee' through the owner of BKB Transport Company, Vinitjee 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, 'Sky Minerals' were engaged in the project.
Sudhansu Ranjan @ Chhotu Singh further disclosed that he had come to know that Mahesh Agarwal along with Mahesh Verma had come to Lawalong and held a meeting with Akramanjee. When he -15- 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 also participated and after talking with 'Netajee', the rate was whittled down to Rs. 200 per Metric Ton. He has stated about Mahesh Agarwal, Sudesh Kedia, Sanjay Jain, Vinit Agarwal, 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 Mukeshjee, Bhikanjee, Brajeshjee, Akramanjee, Kohramjee, Anischayjee and Karampaljee. Sudhansu Ranjan @ Chhotu Singh has also disclosed that the owners of the various companies - Vishnu Agarwal, Mahesh Agarwal, Sonu Agarwal (Appellant), Sudesh Kedia, Vinit Agarwal along with Govind Khandelwal, Sanjay Jain and Ajay Singh have full knowledge that the levy which was extracted by the TPC was used to purchase arms and those persons are involved in anti-national activities.
The evidence of Sudhansu Ranjan @ Chhotu Singh as witness no. 2 has been recorded on 28.09.2021 and he has basically reiterated his statement under Section 306 Cr.P.C. recorded on 10.01.2020.
13. The statement of the witnesses noted above demonstrates that the company of the appellant was involved in collection of cash from various sources and payments to various individuals and bodies including Shanti Sah Sanchalan Samiti. The statement of Sudhansu Ranjan @ Chhotu Singh has amplified the entire modus-operandi with respect to collection of levy by the appellant and others and the presence of Sudesh Kedia and Sanjay Jain also prominently figures in the said statement. The embodiment of the nature of allegations which though consistent appears to be only for the smooth running of the business.
14. We, may now refer to Section 33 I.P.C. which describes 'an Act' as well as a series of acts as a single act. Section 39 I.P.C. defines the term voluntarily which reads as follows:
39. "Voluntarily".--"A person is said to cause an effect "voluntarily"
when he causes it by means whereby he intended to cause it, or by means -16- which, at the time of employing those means, he knew or had reason to believe to be likely to cause it."
Section 94 I.P.C. envisages an 'act' to which a person is compelled by threats. Explanation to Section 94 I.P.C. would denote that when an 'act' is done under threat, such act becomes neutral and the doer becomes entitled to the benefit of the exception.
Section 383 I.P.C. defines extortion and so far as the allegation made against the appellant is concerned, the same prima-facie places the appellant on the pedestal of a victim.
We have referred to the above provisions to indicate that the act of the appellant was not voluntary, but was under threat and compulsion extended by TPC operatives only with a purpose to run the business unhindered. The appellant was promoting his business and there is no allegation that he had joined TPC and such circumstances cannot befell the appellant of being involved in terror funding.
15. We must point out at this juncture that the extortion and payment of levy was a fallout of the inaction of the State to provide adequate security measures and proper ambience for the business community which was engaged in various capacities to carry on trade and business in the affected areas. The various facets of the case indicate the interruptions, hardship and obstacles created by the TPC and only to ensure the smooth running of the business, such involuntary acts were entered into.
16. 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 -17- be less than five 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 -18- 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 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.]
17. 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.
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.
18. Section 18 of the UAP Act reads as follows:
-19-"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."
Section 18 of the Act, therefore, contemplates an act of conspiracy or an attempt at or an abetment, advise or incitement, direction or knowingly 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. 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.
19. 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 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 -20- 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."
20. In "Sanjay Jain versus Union of India" (supra) it was held as follows:
"40. From the materials on record, it is difficult to hold that the appellant conspired or advocated or abeted any offence under UA(P) Act. Section 18 is attracted when the act abeted, advocated, incited etc. is a terrorist act or any act preparatory to the commission of a terrorist act. May be TPC is engaged in terrorist activities, the acts of the appellant in making payment of levy amount to TPC and meeting with TPC supremo are not covered under sections 17 and 18 of UA(P) Act.
"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."-21-
21. The case of Sudesh Kedia and Sanjay Jain appears to be on similar footing with the case of the present appellant. The factual matrix of the case appears to be similar though each of the accused has been attributed with separate roles, but a common factor which emerges is the payment of levy and the meetings held at the ground level for the purpose of smooth running of business. Therefore, the submission advanced by the learned ASGI, while relying on the case of "Padma Sundara Rao" and "Bharat Petroleum" that the judgments rendered in the case of 'Sudesh Kedia' and 'Sanjay Jain' will not be applicable in the present case is negated.
22. 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:
"(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."
23. 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 -22- 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.
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 -23- 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) -24- '18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court 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 duty- bound 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 -25- 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 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 -26- report made under Section 173 of the Code, as in the present case."
24. 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.
25. 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.
26. 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:
"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 -27- 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 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."
27. The charge sheet contains 185 witnesses, 131 documents and 66 material exhibits and there is no likelihood of the trial being concluded in the near future.
28. The learned court below in its order dated 10.03.2022 has not properly appreciated the materials available on record including the imputation of the witnesses and have also not property considered the -28- judgments rendered in the case of 'Sudesh Kedia' and 'Sanjay Jain' while rejecting the prayer for bail of the appellant.
We therefore on a consideration of the entire materials placed before us 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 accusations against the appellant is prima-facie true and as a consequence to the findings recorded above, we hereby set aside the order dated 10.03.2022 passed by Shri Madhuresh Kumar Verma, A.J.C. XVI cum Special Judge, NIA, Ranchi in Misc. Criminal Application No. 335 of 2022 arising out of Special NIA Case No. 03 of 2018 (R. C. Case No. 06/2018/NIA/DLI).
29. The appellant was granted interim protection for a period of 30 days by the Hon'ble Supreme Court in S.L.P. (Cr.) No. 812 of 2022 vide order dated 25.02.2022. This interim protection was also intended for another accused namely, Vinit Agarwal @ Vineet Agarwal, who however was taken into custody by the learned trial court after hearing the arguments on the application for bail, at which a clarificatory order was passed by the Hon'ble Supreme Court in Miscellaneous Application No. 466 of 2022 wherein it was ordered that in case of an adverse order passed by the learned trial court, the appellate court would examine and decide whether the protection from arrest should be extended beyond 27.03.2022. This court in course of hearing of the present appeal had extended the interim protection granted to the appellant till 11.04.2022 vide order dated 24.03.2022. On 11.04.2022, arguments advanced by the respective sides were concluded and this appeal was ordered to be listed under the heading 'For Judgment' today i.e. 18.04.2022 and the interim protection granted to the appellant was further extended for a period of 10 days. Since we have already set aside the order dated 10.03.2022 passed by the learned A.J.C. XVI cum Special Judge, NIA, Ranchi in Misc. Criminal Application No. 335 of 2022, we hereby direct the appellant to appear before the learned trial court on or before 21.04.2022 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.
30. We make it clear that the learned trial court shall not be influenced while conducting the trial of any of the observation made by -29- us in this order as such observations/findings are restricted only for the purpose of grant of bail to the appellant.
31. This appeal is allowed.
32. Pending I.A., if any, stands disposed off.
33. 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.) R. Shekhar Cp 3