Patna High Court
Santosh Kumar @ Santosh Singh vs The National Investigation Agency ... on 3 October, 2023
Bench: Chakradhari Sharan Singh, Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.114 of 2021
Arising Out of PS. Case No.-RC 05 Year-2019 Thana- NIA District- Patna
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SANTOSH KUMAR @ SANTOSH SINGH Son of Late Lalan Singh
Resident of Village Hori Chapra, P.S. Shahpur, District - Bhojpur (Ara).
... ... Appellant/s
Versus
1. The National Investigation Agency C.G.O. Comlex, Lodi Road, New Delhi
through its Director General Delhi.
2. The additional Superintendent of Police, NIA, B.O. Lucknow, Uttar Pradesh
Cum Chief Investigating Officer (CIO).
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Prabhat Ranjan, Advocate
Mr. Chandan Kumar, Advocate
Mr. Ansu Prasad, Advocate
For the NIA : Mr. K.N.Singh, Sr. Advocate, ASG
Mr. Abhijeet Gautam, AC to ASG
Mr. Arvind Kumar, Spl. PP
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 03-10-2023
This is an appeal under Sub Section 4 of Section 21 of
the National Investigation Act, 2008 (NIA Act), challenging the
correctness of an order dated 09.06.2020, passed by the learned
Special Judge, NIA, Patna in special case No. 10 of 2019 arising
out of RC 05 of 2019, whereby the appellant's application for grant
of regular bail has been rejected in view of the interdict contained
Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023
2/12
in Section 43-D(5) of the Unlawful Activities (Prevention) Act,
1967.
2. Since in the present appeal, the appellant has
questioned the legality of the impugned order passed by the
learned Special Judge, we shall be addressing the submissions
advanced on behalf of the appellant and the respondents,
accordingly. From this Court's order-sheet and the records it
transpires that the present appeal was filed in October, 2020
online, when there where COVID restrictions. The appeal was,
however, defective, as pointed out by the Registry which were
directed to be ignored in the light of an undertaking given on
behalf of the appellant to remove them within ten days from the
date of resumption of physical hearing in the Court, by an order
dated 06.08.2021. By the said order, four weeks' time was allowed
for the NIA to file a counter affidavit. Subsequent thereto, on
08.10.2021, the Court directed the case to be listed only after the defects were removed. The defects were subsequently removed, as is evident from the office note dated 14.07.2022. On 15. 07.2022, on a request made on behalf of the appellant, the matter was adjourned and was taken up on 19.07.2022. On 19.07.2022, following order was passed by a Co-ordinate Bench of this Court:-
Mr. Javed Gaffar Khan, learned counsel for the appellant and Mr. Manoj Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023 3/12 Kumar Singh, learned Special P.P. (hereinafter referred to as the 'P.P.') for the N.I.A. are present.
2. As prayed for by learned counsel for the N.I.A. for filing supplementary counter affidavit to bring on record materials which have come during trial to indicate the complicity of the appellant in the crime alleged, the matter be listed on 02.08.2022.
3. The case was subsequently taken up out of turn on 11.10.2022 for hearing an Interlocutory application (I.A. No. 02 of 2022) for provisional release of the appellant on bail, so as to enable him to perform the rituals connected with the demise of his mother. A Co-ordinate Bench of this court passed following order on 11.10.2022 on the said I.A. No. 02 of 2022:-
6. Having considered the submissions of learned counsel for the parties, let the appellant be released on provisional bail upon furnishing bail bond of Rs. 25,000/-
(Twenty Five Thousand) with two sureties of the like amount each to the satisfaction of the learned Special Judge, N.I.A., Patna in Special Case No. 10/2019, arising out of RC 05 of 2019. One of the bailors shall be the wife of the appellant-applicant. Having regard to the fact that the Chhath Puja is almost there, the Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023 4/12 appellant-applicant should surrender before the Court below latest by 01.11.2022 and copy of surrender certificate should be filed by 09.11.2022. The appellant shall keep the local police station informed of his movement while on provisional bail.
4. Two days thereafter the matter was again listed before the Co-ordinate Bench on a motion slip filed on behalf of the appellant for removal of certain typographical error in the order dated 11.10.2022, on 13.10.2022. On 13.10.2022, it was pointed out to the Bench by Mr. K. N. Singh, learned Additional Solicitor General that the appellant had suppressed the fact that he had already filed such petition, seeking provisional bail in the Court below, and further, as per the intelligence report, there was apprehension that the appellant would flee away with his wife. Instead of accepting oral submissions advanced on behalf of the NIA, this Court required learned Additional Solicitor General to bring on record what had been orally submitted. An affidavit was filed on behalf of the NIA when the case was taken up again same day in the second half, wherein it was stated that the appellant had criminal history and sufficient evidence had surfaced to show that huge amount of money was transacted from his account since 2013, in lieu of providing sophisticated and prohibited arms and Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023 5/12 ammunition and that he had association with various extremist organisations. It was also stated in the affidavit that there was strong likelihood of the appellant absconding with his wife and threatening the witnesses of the case. From the order dated 13.10.2022 passed by this Court, it transpires that learned appellant's counsel accepted that a similar petition for provisional release on bail was filed in the Court below for the same reason on 10.10.2022, but the same was withdrawn on 11.10.2022. There being typographical error in the order dated 11.10.2022, the appellant was not released on the strength of the said order of this Court. After having noticed the facts and circumstances, the Court passed an order on 13.10.2022, relevant portion of which is being extracted hereinbelow.
6. The Court having been made aware of the factual position on behalf of the N.I.A., would not take a risk by releasing the appellant-applicant on provisional bail.
However to ensure that he takes part in the last rights of his mother, he is directed to be taken under police escort on 14.10.2022 and also on 16.10.2022 for the purposes of attending the said ceremonies, being taken on the said days in the morning and brought back to the jail after the ceremony on the respective days.
Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023 6/12
7. The Superintendent of Police, Bhojpur in coordination with the Superintendent of the concerned jail in which the appellant-applicant is incarcerated shall provide the necessary police force to ensure that the appellant-applicant is able to attend the ceremony on 14.10.2022 and 16.10.2022 relating to the last rights of his deceased mother.
5. Later, the case was taken up on 27.04.2023 to consider an application filed by an appellant for condonation of delay in preferring the appeal. This Court, taking into account the Supreme Court's order dated 08.03.2021, passed in suo moto Writ Petition (Civil No. 03 of 2020) accepted the submissions advanced on behalf of the appellant that the appeal was not time barred.
6. These facts we have noted, in the background of the submission strongly advanced on behalf of the appellant that the appellant has remained in custody since 2019 and there being no likelihood of completion of trial in near future, this Court, exercising appellate jurisdiction in the present proceeding, should direct release of the appellant on regular bail. Strong reliance has been placed in this regard on an order dated 06.04.2023 passed in Criminal Appeal (DB) No. 930 of 2022 (Tirpurari Singh @ T.P. Singh vs State of Bihar), whereby co-accused Tirpurari Singh @ Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023 7/12 T.P. Singh has been directed to be released on bail in connection with the same special case No. 02 of 2019 arising out of RC case No. 05 of 2019.
7. Learned counsel for the appellant has vehemently argued that the appellant deserves the same treatment by directing for his release on bail upon setting aside the impugned order passed by learned Special Court. It has been submitted that the list of the witnesses sought to be examined at the trial on behalf of the prosecution is long and, therefore, there is no likelihood of conclusion of the trial in near future.
8. Keeping in mind the aforesaid submissions made on behalf of the appellant, this Court, by an order dated 09.05.2023 had permitted learned Special Public Prosecutor, NIA to seek instructions as to whether the case of the appellant could be distinguished from the case of co-accused Tirpurari Singh @ T.P. Singh to consider the appellant's claim for his release on bail.
9. Per contra it is the stand on behalf of the NIA that the case relates to recovery of one AK-47 rifle and two Under Barrel Grenade Launchers and one empty magazine of AK-47 with 1800 live cartridges which were kept concealed and were being transported in the seized vehicle, which were sent by co-accused Ningkhan Sangtam and was en-route to be delivered to the co- Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023 8/12 accused Mukesh Singh and this appellant. During the course of investigation, the involvement of the appellant in conspiracy of procurement and supply of sophisticated prohibited illegal arms and ammunition from Ningkhan Sangtam, a S S Major of NSCN (1M) to Bhikhan Ganju (A-8) a zonal Commander of TPC, a terrorist gang and other Naxal groups of Jharkhand and Bihar has been established. Based on the statement of co-accused Suraj Prasad, recorded under Section 164 of the CrPC, it has emerged that the appellant had transferred a sum of Rs. 9,00,000/- to Ningkhan Sangtam through hawala, prior to the delivery of consignment which was intercepted and seized on 07.02.2019. Further, during the investigation the witnesses, including protected witnesses have disclosed about money transactions between the appellant through banking channels and hawala channels to Ningkhan Sangtam for illegal trade of prohibited sophisticated illegal arms and ammunition and in conspiracy with other accused persons.
10. In the supplementary counter affidavit filed on 18.08.2022, details have been given by the NIA relating to transfer of money by the appellant in the account of the co-accused Ningkhan Sangtam. In the light of the stand taken on behalf of the Union of India, learned counsel for the appellant had sought Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023 9/12 liberty to file a supplementary affidavit, dealing with the money transactions between the appellant and the Ningkhan Sangtam. In the supplementary affidavit filed on behalf of the appellant, it has been stated that such money transactions are bonafide.
11. Mr. Prabhat Ranjan Dwivedi, learned counsel for the appellant has submitted that those money transactions between Ningkhan Sangtam and the appellant are subject matter of investigation and trial in connection with Nawada P.S. Case No. 415 of 2018 and reliance of such transactions in the present trial by the NIA is not legally sustainable which would amount to double jeopardy, hit by the Article 20(2) of the Constitution of India and Section 300 of the CrPC. Relying on the Supreme Court's decision in the case of Union of India v. K.A. Najeeb, reported in (2021) 3 SCC 713, learned counsel for the appellant has submitted that maintaining parity with the co-accused Tirpurari Singh @ T.P. Singh, the appellant should be directed to be released on bail.
12. The first question which falls for consideration before this Court in the light of the submissions which have been advanced on behalf of the appellant and the NIA is as to whether the order which is impugned in the present appeal can be said to be suffering from any legal infirmity. The Court, exercising appellate Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023 10/12 jurisdiction in the present matter is firstly required to consider the legality of the impugned order.
13. It is the prosecution's case that a Sub-Inspector of Bihar Police in course of patrolling and routine vehicle check near the check post had intercepted the vehicle, leading to recovery of cache of live cartridges, sophisticated weapons including one AK- 47 rifle, two under barrel grenade launchers which were being smuggled allegedly from across Myanmar Border with the help of some Naga undergrounds to be supplied to Maoists and gangsters in the country.
14. Chargesheet has been submitted in this case against the appellant on 25.03.2020. The appellant has criminal antecedents. Learned Special Judge, NIA has noted in his impugned order that on perusal of the case diary, there were reasonable grounds for believing prima facie, the accusation against the appellant. The learned Special Judge, NIA, applying Section 43-D(5) of the UAPA Act has rejected the appellant's prayer for his release on bail. The impugned order dated 09.06.2020, in our opinion, thus, can not be said to be suffering from any illegality.
15. The next question arises for this Court's consideration is as to whether the pendency of the present appeal Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023 11/12 before this Court can be considered to be a ground for interfering with the impugned order, exercising appellate jurisdiction under Sub Section 4 of Section 21 of the NIA Act. Exercising appellant jurisdiction, this Court is required to consider, whether the impugned order passed by the NIA Court is legally sustainable or not. Our answer is in affirmative as we do not find any illegality with the said order requiring this Court's interference. We are, therefore, not inclined to interfere with the impugned order.
16. We are also of the view that the learned Additional Solicitor General has rightly distinguished the case of the appellant from that of co-accused Tirpurari Singh @ T.P. Singh by bringing on record the documents which prima facie show transactions between this appellant and Ningkhan Sangtam.
17. The case of this appellant being distinguishable from the case of Tirpurari Singh @ T.P. Singh, in our opinion, the appellant's claim for parity is untenable, in any view of the matter. Before we part with the present judgment, we consider it apt to notice the submissions advanced on behalf of the NIA that the number of the prosecution's witnesses has been substantially pruned.
18. In such view of the matter, we do not find any reason to interfere with the impugned order and direct release of the Patna High Court CR. APP (DB) No.114 of 2021 dt.03-10-2023 12/12 appellant on bail, in the present facts and circumstances. The appellant shall, however, be at liberty to renew his prayer for bail before the Court below on any fresh ground including the ground of delay in conclusion of the trial.
19. This appeal is accordingly, dismissed with the aforesaid observation.
(Chakradhari Sharan Singh, J) I agree.
Nawneet Kumar Pandey, J:
(Nawneet Kumar Pandey, J) Nishant/-
AFR/NAFR NAFR CAV DATE 30.08.2023. Uploading Date 04.10.2023. Transmission Date 04.10.2023.