Andhra Pradesh High Court - Amravati
Giteli Imran vs The State Rep By Its Public Prosecutor on 28 October, 2022
Author: M.Ganga Rao
Bench: M.Ganga Rao
HON'BLE SRI JUSTICE M.GANGA R.A.O.
&
HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
CRLA.No.246 OF 2022
JUDGMENT:(Per Hon'ble Sri. Justice T.Mallikarjuna Rao)
1. This is an appeal under Section 21(4) of the National Investigation Agency Act (in short, 'the N.I.A. Act') directed against the order, dt.06.10.2021, passed in Crl.MP.No.613 of 2022 in SC.No.36 of 2021 (RC.No.5/2019/N.I.A./Hyderabad) by the Metropolitan Sessions Judge - Cum - Special Judge for Trial of N.I.A. Act cases, Vijayawada whereby the prayer of the accused/appellant to allow him to go on bail stands rejected.
2. The case of the prosecution, as set forth in the charge sheet, states as under:
a) On 15.11.2019 at 22.30 hours, counter intelligent Cell, Andhra Pradesh State, received credible information that during the years 2011 to 2019, some unidentified foreign nationals entered into a conspiracy with some unknown persons in places like Visakhapatnam, Mumbai etc., to carry out Anti National Activities in India, money is being transferred through various legal/illegal channels to some accounts of unknown persons of Visakhapatnam, to recruit agents for collection and communication of secret information pertaining to sensitive and vital 2 CRLA.No.246/2022 institutions like defence establishment, space research stations etc., across the country. During the investigation, 15 accused, including 11 employed in the services of the Indian Navy, were arrested on different dates.
b) Against 14 accused persons under various sections of the law, a charge sheet was filed, including the Unlawful Activities Prevention Act (for short, 'U.A.P. Act'). The prosecution's case, as outlined in the additional charge sheet as follows:
c) During the search of the house of A19 on 14.09.2020, one mobile phone and other documents required for investigation were seized in the presence of independent witnesses.
d) During the interrogation in police custody from 05.11.2020 to 09.11.2020, Appellant/A19 disclosed that he used to visit Pakisthan often until suspended services between Pakistan and India and clothes arranged by Ashfaq from Karachi, received by him through the transport services; he used his, his relatives (i.e., wife and brothers) bank accounts for depositing different accounts of money into various bank accounts. The investigation showed that the said Ashfaq shared the amount details of many Indian Accounts, including A8, A13 and A18, to him over WhatsApp and instructed to deposit the money into those accounts and A19 transferred Rs.4,000/- and Rs.8,000/- into bank accounts of A13 and A18 respectively from his Bank of 3 CRLA.No.246/2022 Baroda Account using a mobile banking app, whereas he deposited Rs.18,000/- into the bank account of A8 using C.D.M. of ICICI of Godhra. During the investigation, A19 and his family members used several bank accounts to transfer money to many Indian Accounts in considerable amounts to two crores within a short period revealed. In contrast, they are doing petty businesses like auto driving, casual labour and second hand bike selling, which only provide sustenance for their livelihood. The given particulars of the bank transactions stand in the name of A19 and his relatives in detail.
e) It alleged that suspected Pakistani I.S.I. recruited A-19 Agent Ashfaq Khandu for the said purpose. In lieu of money received from online handlers through Indian Agents, accused navy personnel, including A8, A13 and A18, shared sensitive official secrets with said online handlers. During the investigation, the call detail records of two mobile numbers of A19 were received from the concerned service providers. It revealed that A19 was in contact with a Pakisthan agent spies, including Ashfaq Khandu, through WhatsApp, an end-to-end encrypted messaging service to avoid detection by Law Enforcement Agencies. It also alleged that he intentionally destroyed the evidence by formatting and selling his mobile phone (Redmi 7 Pro). The Scrutiny of APFSL Forensic Examination Report dt.18.01.2021 regarding A19's seized mobile reveals that he has more than 300 Pakisthan contacts saved in his phone, and the accused 4 CRLA.No.246/2022 was found in frequent contact with Asfaq Khandu. Still, did not find all the chats on his phone, and he deleted the incriminating chats.
3. Sri.M.Saleem Pasha, learned Counsel appearing for appellant/A19 contends that the appellant did not know about the electronic money transactions that allegedly took place; it is a conspiracy to implicate the appellant by misusing his mobile. Since the investigation agency filed the charge sheet and the same was taken on record, the release of the appellant may not adversely affect the prosecution's case. The charge sheet discloses ingredients of offences under Sections 17 and 18 of the U.A.P. Act are not attracted. The appellant never obtained, collected, recorded, published or communicated any information to any other person. The appellant is the breadwinner of his family, and seven persons depend on him. He further contends that 184 witnesses in the charge sheet, and in the additional charge sheet, 64 witnesses are cited and they are to be examined during the trial. There is no possibility of the completion of the trial in the near future. Hence, the applicant may be enlarged on bail.
4. Controverting the submissions made on behalf of the 5 CRLA.No.246/2022 appellant, Sri.K.Krishna Bushan Choudary, Learned Central Government Pleader, submits that there are sufficient incriminating materials against the present appellant and vehemently opposed this application and placed copies of the charge sheet and supplementary charge sheet. Serious allegations are levelled against the appellant. There are all chances that the appellant would not be available at the time of trial. The Court may not exercise discretion in his favour. It is, therefore, urged this application be dismissed.
5. Heard learned Counsel appearing for parties. The material placed on record shows that the Appellant/A19 has been in judicial custody from 18.09.2020 onwards. The Chief Investigation Officer, National Investigation Agency, Hyderabad, filed the supplementary charge sheet against A19 for the offences punishable under Section 120-B and 201 of the Indian Penal Code, 1860 (for short I.P.C.) and Section 17 and 18 of Unlawful Activities (Prevention) Act, 1967.
6. Learned Counsel appearing for the appellant relied upon the judgment of Hon'ble Apex Court in the case of Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath 6 CRLA.No.246/2022 Bhattacharya @ Aseem Kumar Bhattacharya Vs. National Investigation Agency in Criminal Appeal No(s). 1525 of 2021 arising out of S.L.P. (Criminal) No(s).6858 of 2021, it is observed that "liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative, and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period, the Courts would ordinarily be obligated to enlarge him on bail. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, the period of deprivation pending trial/appeal cannot be unduly prolonged. At the same time, the timely delivery of justice is part of human rights, and denial of speedy justice is a threat to public confidence in the administration of justice.
The three Judge Bench of this Court in Union of In- dia Vs. K.A. Najeeb 2021(3) SCC 713 had an occasion to consider the lengthy incarceration, and at the same time, the effect of Section 43 D(5) of the U.A.P. Act and observed as under:
It is thus clear to us that the presence of statutory restrictions like Section 43 D(5) of the UAPA per se does 7 CRLA.No.246/2022 not oust the ability of the constitutional courts to grant bail on the grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute and the pow- ers exercisable under constitutional jurisdiction can be well harmonised. Whereas at the commencement of proceed- ings, the courts are expected to appreciate the legislative policy against the grant of bail, but the rigours of such pro- visions 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 sub- stantial 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 wholesale breach of the constitutional right to a speedy trial."
7. Learned Counsel for the appellant relied on a decision reported in between Sreenath Suswaram Vs. Balchand1 in support of his contention that "the object of bail is neither punitive nor preventive. Deprivation of liberty must be considered a punishment unless required to ensure that an accused person will stand his trial when called upon". The rule of the criminal justice system is bail, not jail, followed today.
8. In National Investigation Agency V. Zahoor Ahmad Shah 1 CRL.P.No.7297 of 2021 8 CRLA.No.246/2022 Watali2, the Hon'ble Supreme Court held that in bail application under the Unlawful Activities (Prevention) Act, 1967, the approach should be different.
9. In Masroor Vs State of Uttar Pradesh3 it is held that the valuable right of liberty of an individual and the interest of society, in general, has to be balanced. That freedom of a person accused of an offence would depend upon the exigencies of the case and that the collective interest of the community may outweigh the right of personal liberty of the individual concerned.
10. Because it is the proviso to Section 43D(5) of the U.A. (P) Act, which puts severe restrictions on the Special Court's power to grant bail, it is imperative to take note of what the proviso to Section 43D(5) conveys. For the sake of clarity, Sub-Section (5) of Section 43D, which is of utmost importance, is reproduced below :
(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 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 2 2019 (5) S.C.C.1 3 (2009) 14 SCC 286 9 CRLA.No.246/2022 released on bail or his 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.
11. A bare reading of Sub-Section (5) of Section 43D shows that apart from the fact Sub-Section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking the release of an accused on bail, the proviso to Sub- Section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail by laying down that if the Court, on perusal of the case diary or the report made under Section 173 of The Code of Criminal Procedure, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or chapter VI of the A(P) Act, is prima facie true, such an accused person shall not be released on bail or his own bond.
12. From the meaning attributed to the words "Prima facie true" by various dictionaries, this Court views that the expression, 'prima facie true, would mean that the Court shall undertake an exercise to determine as to whether the accusations made 10 CRLA.No.246/2022 against the accused or inherently improbable and/or wholly unreliable. When the word 'prima facie' is coupled with the word 'true', it implies that the Court has to undertake an exercise of checking the truthfulness of the allegations made in the complaint based on the materials on record. Suppose the Court finds, on such analysis, that the accusations made or inherently improbable or wholly unbelievable in that case may be challenging to say that a case, which is 'prima facie true, has been made out.
13. Thus considering the appeal, it needs to be borne in mind that, in the case on hand, it is required to be determined by this Court, as an appellate court, whether there are reasonable grounds for believing that the accusations made against the appellant for prima facie true or not.
14. The prosecution case is based on the theory of criminal conspiracy. In the case at hand, nothing is placed before the Court to show that the accusations made against the accused are improbable, nor can accusations be said to be wholly unbelievable. In such circumstances, the material on record, so long as they remain, what they are, speak that the accusations are prima facie true. In the case at hand, there are severe 11 CRLA.No.246/2022 incriminating materials to show that the accused was a part of the criminal conspiracy.
15. Learned Counsel for the appellant relied on a judgment between Jahir Hak Vs. State of Rajasthan4, wherein Ape Court has taken a long period of incarceration that the appellant had already undergone as a ground to grant the bail to the accused therein. The accused has been in custody for almost 8 years in the said case. In view of the same, it cannot be applicable to the present facts of the case.
16. It is not the case that the period of incarceration has already exceeded a substantial part of the sentence. The learned Counsel for the appellant has prayed to consider the investigation into the crime already completed; the charge sheet has been filed.
17. In this regard, we would like to refer to the Judgment of the Hon'ble Apex Court in the case of Virupakshappa Goud Vs. State of Karnataka5 holds that "the filing of the charge sheet does not in any manner lessen allegations, but rather establishes that after due investigation, the charge sheet is filed against the accused; therefore, the fact that the charge sheet 4 Crl.A.No.605 of 2022 arising out of S.L.P. (Crl.) No.7003 of 2021 5 (2017) 5 SCC 406 12 CRLA.No.246/2022 has been submitted against the appellant cannot be used in favour of the appellant, rather it would go against him".
18. It is well settled by the combined High Court of Andhra Pradesh in National Investigation Agency, Hyderabad V. Saddam Hussain 2017 (2) ALD 197 A.P., wherein it was held that Section 43(D) of the Unlawful Activities (Prevention) Act, 1967, takes away the discretion of the Court to grant bail wherever is of the opinion that there are reasonable grounds for believing that the accusations against the accused are prima facie true.
19. In Afzal Khan @ Babu Murtuzakhan Pathan V. State of Gujarat6, the Hon'ble Apex Court held a bail application, in case nature, which involves the security of the State should be rejected.
20. The material on record 'prima facie' shows that some foreign agents hatched a conspiracy with their agents based in India, including accused Navy Personnel, to carry out Espionage Activities in India to threaten the integrity, security and sovereignty of India. In furtherance of their conspiracy, they are involved in Espionage Activities in India by collecting classified information and other vital defence installations. On the 6 Appeal (Crl.) 757 of 2007 13 CRLA.No.246/2022 instructions of Pakistani Agents, A19 transferred/deposited money to/into Navy personnel; he is involved in anti-national activities and was a member of many WhatsApp groups of Pakistani nationals. The Special Court was within its jurisdiction in the present case in not granting bail to the present appellant. The Special Court did not commit any illegality in rejecting the present appellant's application for bail; it does not warrant any inference by this Court in its appellate jurisdiction.
21. There are reasonable grounds to believe that the allegations levelled against the appellant that the appellant had committed the offences under Chapter IV/VI of the N.I.A. Act are prima facie established. From the material on record, more particularly the additional charge sheet filed against the accused, this Court is of the opinion that there are reasonable grounds for believing that the accusation against the applicant is 'prima facie true. Serious allegations are levelled against the appellant.
22. This Court has independently considered the material collected during the investigation; it would reveal a prima facie material showing that the allegations against the appellant are prima 14 CRLA.No.246/2022 facie true. In view of the law referred supra and the rider provided under Section 43D(5) of the U.A.P. Act, since this Court has already held that the allegations made against the appellant are prima facie true, this Court concludes that the appellant has failed to make out a case for grant of bail and further if the appellant enlarged on bail, there are all chances that he will tamper with the evidence and would flee away from the clutches of law and would not be available at the time of trial.
23. Resultantly, we find no merit in the appeal. For the above- stated reasons, the instant appeal being devoid of any merit, the same is liable to be dismissed. Accordingly, the criminal appeal is dismissed.
_________________________ JUSTICE M.GANGA RAO __________________________________ JUSTICE T.MALLIKARJUNA RAO Date:28.10.2022.
BV/KGM