Madras High Court
Johnson Samuvel vs Union Of India Rep By on 9 May, 2022
Author: S.Vaidyanathan
Bench: S.Vaidyanathan, A.D.Jagadish Chandira
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 25.7.2022
Delivered on : 02.08.2022
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Criminal Appeal No.642 of 2022
Johnson Samuvel Appellant
vs.
Union of India rep by
The Inspector of Police,
National Investigation Agency,
Chennai. Respondent
Criminal Appeal filed under Section 21(4) of National
Investigation Agency Act, 2008 to set aside the order dated 9.5.2022
passed by the Special Court under the National Investigation Agency
Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases),
Poonamallee, Chennai in Crl.M.P.No.185 of 2022 and to enlarge the
appellant on bail in Spl.S.C.No.1 of 2022 on the file of the respondent
police.
For Appellant : Ms.G.V.Shoba
For Respondent : Mr.R.Karthikeyan,
Special Public Prosecutor for NIA cases
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
S.VAIDYANATHAN, J.
and A.D.JAGADISH CHANDIRA,J.
The Appeal has been filed seeking to set aside the order dated 9.5.2022 passed by the Special Court under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Poonamallee, Chennai in Crl.M.P.No.185 of 2022 and to enlarge the appellant on bail in Spl.S.C.No.1 of 2022 on the file of the respondent police.
2. Brief facts of the case are as under:-
i) One Mary Franciska Letchumanan (A1 in the case), a Sri Lankan Tamil was intercepted on 01.10.2021 at the Chennai Airport and enquiry by the Officers of the Foreigners Regional Registration Office, Chennai, revealed that she was possessing Indian Passport and Indian Voter ID, intentionally obtained concealing her nationality and producing fake and fabricated Indian identification documents.
ii) Thereupon, based on a written complaint lodged by Mr.K.G.Sadasivan, Assistant Foreigners Regional Registration Officer, Bureau of Immigration, Chennai Airport, a case in Chennai City Q-
Branch CID Crime No.1 of 2021 for the offences under Sections https://www.mhc.tn.gov.in/judis 3 12(1)(b), 12(1-A) (a) of the Passport Act, 1967, r/w Sections 420, 465, 468 and 471 IPC r/w Section 14(a) of the Foreigners (Amendment) Act, 2004, was registered by the State Police.
iii) The investigation conducted by the Q-Branch CID revealed that Mary is a Sri Lankan national and had obtained a fake Indian passport and Indian voter identity card and she had entered into India with an ulterior motive to commit financial crime in collusion with the Ex-LTTE Cadres at abroad. She was taken into police custody by the Q Branch CID from 11.10.2021 to 13.10.2021 and after such custodial interrogation, the appellant/A4 was arrested on 13.10.2021 by the Q Branch CID Police, Chennai and on considering the nature of offence involved, the investigation of this case was transferred from the file of the Q-Branch CID to the file of the National Investigation Agency vide order dated 17.01.2022 passed by the Central Government and the case has been re-registered as R.C.No.02/2022/NIA/DLI.
iv) The FIR came to be altered and offences under Sections 120B, 420, 465, 468, 471 IPC and Sections 18, 39 and 40 of Unlawful Activities (Prevention) Act, 1967 were added and the case was transferred to the District Court, Chengalpattu.
v) A1 was taken custody by the National Investigation Agency https://www.mhc.tn.gov.in/judis 4 from 27.2.2022 to 5.3.2022. The custodial interrogation of the said Mary Franciska Letchumanan by the Q Branch CID police and the National Investigation Agency revealed various facts including a criminal conspiracy of A1 with other accused viz., A2 to A8 with an intention of siphoning off a sum of Rs.42.28 crores deposited in the dormant accounts of three Indians, viz., Hamida A Lalljee, Arshia A Lalljee and Iskander A Lalljee in Indian Overseas Bank, Fort Mumbai Branch; the money was intended for financing the activities of the LTTE.
vi) The further investigation revealed that A1 was being actively assisted by some others, who have been implicated in the case, including the appellant-Johnson Samuel (A4).
vii) The allegation against the appellant/A4 is that he had a discussion with A1 about her plan of siphoning of Rs.42.28 crores lying in the IOB account of Hamida A Lalljee, Arshia A Lalljee and Iskander A Lalljee in Fort Mumbai Branch by impersonating A7 Mohan with the active assistance of A6 and utilize it for the revival of LTTE in India and A1 had agreed to give a share of 20% of the total amount to the appellant/A4 for the assistance he would render in siphoning the amount.
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viii) Accordingly, the National Investigation Agency had filed the charge sheet against the appellant/A4, A6 and A7 on 29.3.2022 before the Special Court.
ix) Seeking bail, the appellant had filed a petition in Crl.M.P.No.185 of 2022, which came to be dismissed by the Special Court by order order 9.5.2022. Aggrieved against the same, the present Criminal Appeal has been filed by the appellant/A4.
3. Learned counsel Ms.G.V.Shoba appearing for the appellant would submit that the appellant is a practising Advocate and A1 had approached the appellant seeking legal assistance and the appellant, other than advising A1, has not involved in any offence alleged by the prosecution. She would submit that the appellant was called for an enquiry by the the Q Branch police and accordingly, the appellant had gone for enquiry alongwith his colleagues and during the enquiry, since the appellant was harassed by the police, a wordy altercation had arisen, resultantly, the appellant was falsely implicated in the case. She would further submit that the the Q Branch police had completed the investigation and transferred the case to the National Investigation Agency on 17.01.2022 and on completion of investigation, the National Investigation Agency had filed the charge sheet on 29.3.2022 https://www.mhc.tn.gov.in/judis 6 whereby, the charges under the Unlawful Activities (Prevention) Act, 1967 against the appellant were dropped and he was charged with the offences punishable under Sections 120B, 465, 468 read with Section 109 IPC. She would further submit that even admittedly, as per the prosecution, the appellant was not aware of the other criminal activities of the main accused and thereby, if at all, the appellant can be tried only for the offences punishable under the provisions of Indian Penal Code, however, the Special Court, without there being charges against the appellant for offences under the provisions of Unlawful Activities (Prevention) Act, had invoked Section 43D(5) of the Unlawful Activities (Prevention) Act for dismissing the bail application. The learned counsel would further submit that the presence of statutory restrictions like the provision under Section 43-D(5) of the the Unlawful Activities (Prevention) Act, per se, does not oust the powers of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution, which would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. She would submit that the appellant is a law abiding person having strong roots in the society and he would abide by any stringent conditions imposed by this court for grant of bail and in the https://www.mhc.tn.gov.in/judis 7 event of grant of bail, he would not tamper with the evidence or witnesses during trial and he would cooperate for the speedy trial of the case.
4. The respondent has filed a statement of detailed objections. Pointing out the counter allegations, Mr.R.Karthikeyan, learned Special Public Prosecutor, would vehemently oppose for grant of bail to the appellant and submitted his arguments as under:-
i) On interception of one Mary Franciska Letchumanan a Tamil Srilankan lady (A1) at the Chennai Airport, the authorities had found that she had obtained Indian Passport, Voter ID and other such basic documents and she had entered India with an intention to siphon the money from the dormant accounts of some Indian by fabricating and impersonating and utilize the same for revival of LTTE and further investigation had revealed that she had conspired with some other accused for her illegal activities and one among them is the present appellant/A4.
ii) The investigation also revealed that the appellant/A4 had applied and obtained PAN card and Aadhar card through online mode and fabricated and prepared a fake PAN card and Aadhar card in the https://www.mhc.tn.gov.in/judis 8 name of Iskanthar A Laljee using his own laptop through Adobe Photoshop with the help of A6 Dharmendiran and thereby the appellant cannot plead innocence, especially, when the co-accused has been charged with grave offences and the appellant had conspired with them.
iii) The respondent has got sufficient materials and evidence to prove the criminal activities committed by the appellant and the Special Court has rightly dismissed the bail application filed by the appellant, which does not warrant any interference by this court.
5. Heard the learned counsel appearing for the parties and perused the materials available on record.
6. The appellant/A4 has been arrested on 13.10.2021. The allegation against him is that he has fabricated documents and aided the main accused in attempting to siphoning of funds in various dormant accounts. A perusal of the materials would reveal that though the appellant was implicated in the case alongwith other accused in Crime No.1 of 2021 for the offence punishable under Sections 12(1)(b), 12(1-A) (a) of the Passport Act, 1967, r/w Sections 420, 465, 468 and 471 IPC r/w Section 14(a) of the Foreigners (Amendment) Act, 2004 and Sections 18, 39 and 40 of Unlawful https://www.mhc.tn.gov.in/judis 9 Activities (Prevention) Act, later, on completion of investigation by the National Investigation Agency, the charges against the appellant/A4 for the offences punishable under the provisions of Unlawful Activities (Prevention) Act were dropped and the appellant/A4 stands charged for the offences punishable under Sections 120B, 465, 468 read with Section 109 IPC alone.
7. A scrupulous reading of the prosecution case would reveal that the appellant/A4 had only aided the main accused in siphoning the money from some bank accounts by creating documents and there ends the role of the appellant and he was unaware of the ultimate goal of the main accused in utilising money so siphoned for reviving the LTTE in India and on coming to such an inference alone, the prosecution has dropped the charges against the appellant for the offences punishable under the provisions of Unlawful Activities (Prevention) Act, 1967.
8. When such a course of action has been decided by the National Investigation Agency, the Special Court had invoked the provision of Section 43D(5) of Unlawful Activities (Prevention) Act, 1967 to reject the application filed by the appellant seeking bail. The offence in the present case has got two limbs. One https://www.mhc.tn.gov.in/judis 10 being siphoning of money from some bank accounts by fabricating some documents and impersonation, the other limb is utilisation of the money so siphoned for developing terroristic activities. The allegation against the main accused in this case is that they had indulged into the offence at both levels, whereas, the allegation against the appellant/A4 is that he had aided the main accused in siphoning the money and except a stand taken by the prosecution that the appellant had discussion with A1 and conspired to commit the offence, there is no specific material to incriminate the appellant for any such grave offence punishable under the provisions of Unlawful Activities (Prevention) Act.
9. It is relevant to note that while dismissing an appeal filed by the Union of India against grant of bail in a case of offence punishable under Unlawful Activities (Prevention) Act, 1967, a Full Bench of the Apex Court in Union of India v. K.A. Najeeb (2021) 3 SCC 713, has held as under:-
"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 https://www.mhc.tn.gov.in/judis 11 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.
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 https://www.mhc.tn.gov.in/judis 12 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, https://www.mhc.tn.gov.in/judis 13 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.
20. In light of the above discussion, we are not inclined to interfere with the impugned order. However, we feel that besides the conditions to be imposed by the trial court while releasing the respondent, it would serve the best interest of justice and the society at large to impose some additional conditions that the respondent shall mark his presence every week on Monday at 10 a.m. at the local police station and inform in writing that he is not involved in any other new crime. The respondent shall also refrain from participating in any activity which might enrage communal sentiments. In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at https://www.mhc.tn.gov.in/judis 14 liberty to cancel his bail forthwith. The appeal is accordingly dismissed subject to the abovestated directions."
10. The case on hand is on a better footing. The charges against the appellant/A4 under the provisions of Unlawful Activities (Prevention) Act were dropped by the prosecution itself. However, the Special Court had rejected the plea for bail by invoking Section 43D(5) of Unlawful Activities (Prevention) Act. The reasoning assigned by the Special Court for rejecting the bail is that though the appellant is not charged under the provisions of Unlawful Activities (Prevention) Act directly, the charge of criminal conspiracy against him under Section 120B IPC attracts the offence punishable under the provisions of Unlawful Activities (Prevention) Act.
11. This court is unable to accept such a view expressed by the Special Court, especially, when the appellant was originally charged with the provisions of Unlawful Activities (Prevention) Act and later, on completion of investigation, they were dropped against him by the prosecution itself. Lending of gravity of offence charged against the main accused to reject the bail application of the co- accused by applying the theory of conspiracy, when such https://www.mhc.tn.gov.in/judis 15 grave charges were dropped against the co-accused appears to be untenable.
12. As of now, the appellant has been in custody for about 280 days. Taking into consideration the stage of the case, this court finds that there is no likelihood of the trial being completed at the earliest. The appellant is an Advocate and he has roots in the society. Deprivation of personal liberty of the accused without ensuring speedy trial has been dealt with by the Apex Court in Ashim @ Asim Kumar Haranath vs. National Investigation Agency (2021) SCC OnLine SC 1156, wherein it has held as under:-
"12. This Court has consistently observed in its numerous judgments that the 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 under trials 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 of time, the Courts would ordinarily be obligated to https://www.mhc.tn.gov.in/judis 16 enlarge him on bail.
13. 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, period of deprivation pending trial/appeal cannot be unduly long. At the same time, 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."
13. The gravity of offence cannot stand in the way of personal liberty of an accused. It has been held by the Apex Court in Sanjay Chandra v. CBI (2012) 1 SCC 40 as under:-
“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an https://www.mhc.tn.gov.in/judis 17 accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most https://www.mhc.tn.gov.in/judis 18 extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
24. In the instant case, we have already noticed that the “pointing finger of accusation” against the appellants is “the seriousness of the charge”. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant https://www.mhc.tn.gov.in/judis 19 considerations while considering bail applications but that is not the only test or the factor : the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather “recalibrating the scales of justice”.
25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general.
In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It https://www.mhc.tn.gov.in/judis 20 transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.
***** ***** *****
46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."
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14. Relying on the above decision, the Delhi High Court has held in Sundar Singh Bhati vs. State (2022) SCC OnLine Del. 134 as under:-
"19. Therefore, the magnitude of the offence cannot be the only criterion for denial of bail. The object of bail is to secure the presence of the accused at the time of trial; this object is, thus, neither punitive nor preventative, and a person who has not been convicted should only be kept in custody if there are reasons to believe that they might flee from justice or tamper with the evidence or threaten the witnesses. If there is no apprehension of interference in administration of justice in a criminal trial by an accused, then the Court should be circumspect while considering depriving the accused of their personal liberty. Mere vague belief that the accused may thwart the investigation cannot be a ground to prolong the incarceration of the accused."
15. Applying the above principles laid down in the above decisions, this court is of the view that appellant has made out a case https://www.mhc.tn.gov.in/judis 22 for grant of bail. Accordingly, the Criminal Appeal is allowed and the order dated 9.5.2022 passed by the Special Court under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Poonamallee, Chennai in Crl.M.P.No.185 of 2022 is set aside and the appellant is ordered to be released on bail in Spl.S.C.No.1 of 2022 pending trial,
a) on executing a bond for a sum of Rs.25,000/- (Rupees twenty five thousand only) with two sureties each for a likesum to the satisfaction of the Special Court under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Poonamallee, Chennai.
(b) the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the learned Judge, Special Court may obtain a copy of their Aadhar Card or Bank Pass Book to ensure their identity;
(c) the appellant shall report before the Special Court on every Monday at 10.30 a.m. and also on all the hearing dates.
(d) the appellant shall not leave the State of Tamil Nadu without intimating the respondent police.
(e) the appellant shall not commit any offences of similar nature; https://www.mhc.tn.gov.in/judis 23
(f) the appellant shall not abscond during trial;
(g) the appellant shall not tamper with evidence or witness during trial;
(h) on breach of any of the aforesaid conditions, the learned Judge, Special Court is entitled to take appropriate action against the appellant in accordance with law as if the conditions have been imposed and the appellant released on bail by the learned Judge, Special Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560];
(i) if the appellant thereafter absconds, a fresh FIR can be registered under Section 229A IPC.
16. Before parting with, we make it clear that the observations and findings recorded in this judgment are only for the limited purpose of considering the application for bail and the Special Court shall not be influenced by the same during the trial or while rendering its decision.
(S.V.N.,J.) (A.D.J.C.,J.) 02.08.2022.
Index: Yes/No. Internet: Yes/No. ssk.
Note to office: Issue copy on 03.08.2022.
https://www.mhc.tn.gov.in/judis 24 To
1. Judge, Special Court under the National Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases), Poonamallee, Chennai 600 056.
2. Inspector of Police, National Investigation Agency, Chennai.
3. The Superintendent, Central Prison,, Puzhal.
4. The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis 25 S.VAIDYANATHAN, J.
and A.D.JAGADISH CHANDIRA, J.
ssk.
P.D. JUDGMENT IN Criminal Appeal No.642 of 2022 Delivered on 02.08.2022.
https://www.mhc.tn.gov.in/judis