Jharkhand High Court
Jaiki Paradhi @ Jaiki @ Jk vs The State Of Jharkhand Through Nia on 10 January, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
Cr. Appeal (D.B.) No.1141 of 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1141 of 2023
-----
Jaiki Paradhi @ Jaiki @ JK, S/o Patamudi Paradhi, aged
about 33 years, R/0 village- Hirapur, P.O. & P.S.- Barhi,
District - Katni, State- Madhya Pradesh
... Appellant
Versus
The State of Jharkhand through NIA ... Respondent
-------
CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
-------
For the Appellant : Mr. Birendra Burman, Advocate
Md. Amanat Khan, Advocate
For the Respondent : Mr. Amit Kumar Das, Advocate
Mr. Saurav Kumar, Advocate
------
th
Order No. 04/Dated 10 January, 2024
Per Sujit Narayan Prasad, J.
1. The instant appeal preferred under Section 21(4) of the National Investigation Agency Act, 2008 is directed against the order dated 10.05.2023 passed by the AJC-XVI- cum-Spl. Judge, NIA, Ranchi in Misc. Cr. Application No.1284 of 2023, (Special (NIA) Case No.02/2021) corresponding to R.C. No.02/2021/NIA/RNC, arising out of Toklo P.S. Case No.09 of 2021 registered for the offence under Sections 147, 148, 149, 353, 120B, 121, 121A, 307, 302 and 333 of the Indian Penal Code (I.P.C.), Section 3/4 of Explosive Substances Act, Section 17 of the C.L.A. Act 1908 and under Sections 16, 20, 38 & 39 of the Unlawful Activities (Prevention) Act 1967, whereby and whereunder, Cr. Appeal (D.B.) No.1141 of 2023 2 the prayer for regular bail of the appellant has been rejected.
Facts
2. The brief facts of the prosecution case leading to this Criminal Appeal is that the superintendent of Police Chaibasa, West Singhbhum, received information from various sources regarding the movement of Anal Da @ Toofan Da @ Patriram Manjhi and Maharaj Pramanik @ Raj Pramanik, both senior cadres of Central committee of CPI Maoist, along with other cadres of their groups were roaming in the hilly area of Lanji Mountain, under Toklo Police Station, District- West Singhbhum and planning to execute a big incident against security forces and disrupt the development and direction of Superintendent of Police, Chaibasa and senior officials, accordingly one special operation was launched from the Darkada (Jharjhara) base camp by the troops of Jharkhand Jaguar AG-II and C/197 CRPF BN.
3. It is further alleged that when informant along with search parties reached near slope of Lanji Hill, the troops of Jharkhand Jaguar AG II were on front and leading the operation and troops of CRPF/ 197 BN was moving behind the Jharkhand Jaguar AG-II. Suddenly, at about 8.30 hours a heavy blast took place from the left flank approx. 100-150 meters on the hill from the base of Lanji Hill. In Cr. Appeal (D.B.) No.1141 of 2023 3 retaliation to the blast six rounds were fired by Constable Vijay Yadav of Jharkhand Jaguar towards the hill for his self-defence when the troops heard the sound of blast all the operation team took position for a while.
4. In the meantime, Section Commander of the Jharkhand Jaguar informed through wireless set that an IED blast has taken place and five jawans of his team and one Jawan of CRPF got injured and out of them three become martyred and rest injured were rescued to Medica hospital Ranchi. Later on, one head constable also attained martyrdom after reaching Medica hospital, Ranchi, Jharkhand.
5. Accordingly, a case was registered on the basis of written report made by Sub-inspector of police Ramdeo Yadav as Toklo P.S. Case No.09 of 2021 under Sections 147, 148, 149, 353, 120B, 121, 121A, 307, 302 and 333 of the Indian Penal Code (I.P.C.), Section 3/4 of Explosive Substances Act, Section 17 of the C.L.A. Act 1908 and under Sections 16, 20, 38 & 39 of the Unlawful Activities (Prevention) Act 1967 (UA(P) Act 1967) against the thirty three named accused persons along with 20-25 unknown members of banned terrorist Organisation i.e. CPI (Maoist).
6. Later on, considering the gravity of the offence, Ministry of Home Affairs, Government of India vide order dated 20.03.2021 directed National Investigation Agency Cr. Appeal (D.B.) No.1141 of 2023 4 (NIA), Ranchi to take over the investigation of the Toklo P.S.Case No.09 of 2021.
7. In compliance to the directions of the Ministry of Home Affairs, Government of India, (Order No. F.No.11011/25 dated 20.3.3021), NIA, Ranchi re-registered the aforesaid case as RC-02/2021/ NIA/RNC dated 24.03.2021 under Sections 147, 148, 149, 353, 120B, 121, 121A, 307, 302 and 333 of the Indian Penal Code (I.P.C.), Section 3/4 of Explosive Substances Act, Section 17 of the C.L.A. Act 1908 and under Sections 16, 20, 38 & 39 of the Unlawful Activities (Prevention) Act 1967 (UA(P) Act 1967) against the accused persons.
8. After obtaining the administrative approval of the competent authority the case docket and case exhibits were transferred to the NIA by the Investigating agency and accordingly investigation was taken up by the NIA.
9. Later on, it is surfaced that the present appellant was arrested in connection with another case being Kharsawa P.S. Case no. 105/2020 and he was in jail. Accordingly, the present appellant was produced and remanded in the instant case on 31.07.2021.
10. On 07.09.2021 charge-sheet was submitted against 19 accused persons and investigation continued further against the two remanded accused persons including the present appellant.
Cr. Appeal (D.B.) No.1141 of 2023 5
11. On 25.01.2022 NIA filed the 1st supplementary Charge-sheet against two accused persons including the present appellant under sections 120B read with 307, 302 and 333 of the Indian Penal Code (I.P.C.), Section 4/6 of Explosive Substances Act, and under Sections 16, 18, 20, 38 & 39 of the Unlawful Activities (Prevention) Act 1967.
12. The appellant had preferred Misc. Cr. Application No.308 of 2022 before the NIA Special Court, Ranchi but the same has been rejected vide order dated 04.05.2022 against which the Appellant preferred Criminal Appeal (DB) No. 383 of 2023 before this Court but the same was dismissed as withdrawn on 12.04.2023.
13. Consequently, the above-named appellant had again preferred the regular bail application vide Misc. Cr. Application No.1284 of 2023 before the NIA Special Court, Ranchi for regular bail but the same has been rejected vide order dated 10.05.2023 against which the present appeal has been filed.
Submission of the Learned Counsel for the Appellant
14. Learned counsel for the appellant has assailed the impugned order on the following grounds:-
(i) The NIA has not established through its investigation as to what terrorist act was committed by the appellant and thus no offence under Unlawful Activities (Prevention) Act can be said to be made out.
Cr. Appeal (D.B.) No.1141 of 2023 6
(ii) The learned court below failed to appreciate and consider that the appellant has no any nexus with extremist organization, thus the appellant cannot be brought within the ambit and scope of Act, 1967.
(iii) Appellant is quite unknown about the alleged offence and he has got no connection with said crime and he was not arrested from the place of occurrence. Further No incriminating articles have been recovered from the possession of the appellant.
(iv) The appellant is not named accused in the FIR and he has been arrayed as an accused in the instant case only on the basis of confessional statement of co-accused which has got no evidentiary value in the eye of law.
(v) The appellant used to sell Rurdrarakhsa Mala and for that he was in contact with many people and he has erroneously been implicated in the instant case.
(vi) The appellant has been remanded in the instant case on 31.07.2021, since he was in jail in connection with Kharsawa P.S. Case No. 105 of 2020 dated 25.12.2020 and instant case occurrence was caused on 04.03.2021.
(vii) He is in custody in the instant case since 31.07.2021 i.e. almost 2 and half years and the instant case is Cr. Appeal (D.B.) No.1141 of 2023 7 running at the stage of evidence and as such there is no chance of conclusion of the trial in near future.
(viii) As per the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713 the personal liberty of the individual has paramount importance, hence, taking into consideration the period of custody, it is a fit case where the appellant deserves to be released from judicial custody.
15. Learned counsel for the appellant, on the aforesaid premise, has submitted that the learned court ought to have considered that aspect of the matter, while considering the prayer for regular bail, but having not been considered, therefore, the impugned orders need to be interfered with.
Submission of the Learned Counsel for the Respondent NIA
16. While, on the other hand, learned counsel appearing for the respondent NIA has defended the impugned orders on the following grounds:-
(i) It is evident from the charge-sheet that the present appellant has worked as aid to the proscribed organisation as such provisions of UA(P) Act 1967 will be applicable against the appellant.
Cr. Appeal (D.B.) No.1141 of 2023 8
(ii) During investigation it has emerged that 700 kg of Potash has been procured and supplied to the armed cadres of CPI (Maoist) on multiple occasions by present appellant from Beohari Madhya Pradesh and entire network of obtaining explosive chemicals was functioning on the direction and supervision of the charge-sheeted accused person Maharaj Pramanik and others.
(iii) The said potash was used by the armed cadres of CPI (Maoist) as an explosive chemical used in IED blasts and due to that few innocent government police force members have lost their life.
(iv) On the basis of available disclosure statement and statement under section 161 and 164 Cr. P.C of the prosecution witnesses, it is established that the present appellant was part of the larger conspiracy hatched with association and direction of armed cadres of CPI Maoist and due to his supplied potash, Maoist carried out IED blast at Lanji forest resulting killing of the three police personnel and causing serious injuries to the few other Police personnel.
(v) Further the proviso as stipulated under Section 43D(5) of UA(P) Act put a complete embargo against release of the accused persons, if prima facie case is Cr. Appeal (D.B.) No.1141 of 2023 9 made out and allegation against the appellant is serious in nature.
(vi) In this case there is prima facie case made out against the appellant and chargesheet has been submitted in which cognizance has been taken and now after framing of charge case record is running for prosecution evidence. Hence, seeing the seriousness of the crime which is against sovereignty, unity, Integrity of the country, it is not fit case to enlarge the appellant on bail.
(vii) The ratio of judgment relied upon by the learned counsel for the appellant as rendered by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb (Supra), is not applicable in the instant case, reason being that in the aforesaid case, nature and background of the offence was different.
17. Learned counsel appearing for the State, on the aforesaid premise, has submitted that the impugned order requires no interference by this Court.
Analysis
18. We have heard learned counsel for the parties and considered the finding recorded by learned Court in the impugned order as also the charge-sheet.
19. This Court, before proceeding to examine as to whether the appellant has been able to make out a prima Cr. Appeal (D.B.) No.1141 of 2023 10 facie case for enlarging him on bail, deems it fit and proper to discuss some settled proposition of law and the relevant provisions of Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as Act, 1967).
20. The main objective of the Act, 1967 is to make powers available for dealing with activities directed against the integrity and sovereignty of India. As per Preamble, the Unlawful Activities (Prevention) Act, 1967 has been enacted to provide for more effective prevention of certain unlawful activities of individuals and associations and dealing with terrorist activities and for matters connected therewith. Therefore, the aim and object of enactment of U.A.(P) Act is also to provide for more effective prevention of certain unlawful activities.
21. To achieve the said object and purpose of effective prevention of certain unlawful activities the Parliament in its wisdom has provided that where an association is declared unlawful by a notification issued under Section 3, a person, who is and continues to be a member of such association shall be punishable with imprisonment for a term which may extend to 2 years, and shall also be liable to fine.
22. Clause (m) of Section 2 of the 1967 Act defines "terrorist organization". It is defined as an organization listed in the First Schedule. CPI (Maoist) has been listed at Cr. Appeal (D.B.) No.1141 of 2023 11 Item no. 34 in the First Schedule. Chapters III onwards of the 1967 Act incorporate various offences. Chapter IV has the title "punishment for terrorist act". Clause (k) of Section 2 provides that "terrorist act" has the meaning assigned to it under Section 15 and 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.
23. Further section 10(a)(i) of Act, 1967 provides that where an association is declared unlawful by a notification issued under Section 3 which has become effective under sub-section (3) of that Section, a person, who is continues to be a member of such association shall be punishable with imprisonment for a term which may extend to two years, and shall also be liable to fine therefore, so long as Section 10(a)(i) stands a person who is or continues to be a member of such association shall be liable to be punished.
24. At this juncture, it will be purposeful to discuss the core of Section 43D(5) of the Act, 1967 which mandates that the person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true apart from the other offences the appellant is accused of committing offences as stipulated under chapter IV and VI of UA(P) Act, 1967.
Cr. Appeal (D.B.) No.1141 of 2023 12
25. The reason of making reference of the provision of Section 43D(5) of the Act that in course of investigation, the investigating agency has discovered the material against the appellant attracting the offence under various Sections of UA(P) Act. Since, this Court is considering the issue of bail based upon now also under the various sections of UA(P) Act and hence, the parameter which has been put under the provision of Section 43D(5) of the Act is also required to be considered.
26. The requirement as stipulated under Section 43D(5) of the UA(P) Act, 1967 in the matter of grant of regular bail fell for consideration before the Hon'ble Apex Court in the case of National Investigation Agency Vrs. Zahoor Ahmad Shah Watali, reported in [(2019) 5 SCC 1] wherein at paragraph 23 it has been held by interpreting the expression "prima facie true" as stipulated under Section 43D(5) of the Act, 1967 which would mean that the materials/evidence collated by the investigation 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 has further been observed that it must be good and sufficient on its face to establish a given fact or the chain of facts constituting the Cr. Appeal (D.B.) No.1141 of 2023 13 stated offence, unless rebutted or contradicted. 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. For ready reference, paragraph 23 of the aforesaid judgment is required to be quoted herein which reads hereunder as :-
"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 and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable 11 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 Cr. Appeal (D.B.) No.1141 of 2023 14 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...."
27. It is, thus, evident from the proposition laid down by the Hon'ble Apex Court in the case of National Investigation Agency v. Zahoor Ahmad Shah Watali (Supra) that it is the bounden duty of the Court to apply its mind to examine the entire materials on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not.
28. Further, it is settled proposition of law that at the stage of granting or non-granting of the bail, 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 and the elaborate examination or dissection of the evidence is not required to be done at this stage. Reference in this regard Cr. Appeal (D.B.) No.1141 of 2023 15 may be taken from the Judgment as rendered by the Hon'ble Apex Court in the case of Ranjitsing Brahmajeetsing Sharma Vrs. State of Maharashtra, reported in (2005) 5 SCC 294. For ready reference the following paragraph of the aforesaid Judgment is being quoted herein under:-
"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."
29. Further, it is the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise and such opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the charge-sheet and other material gathered by the investigating agency during investigation.
30. This Court, on the basis of the abovementioned position of law and the factual aspect, as has been gathered Cr. Appeal (D.B.) No.1141 of 2023 16 against the appellant, is proceeding to examine as to whether the accusation against the appellant is prima facie true as compared to the opinion of accused not guilty by taking into consideration the material collected in course of investigation.
31. It is pertinent to mention here that the charges under different heads were framed against the present appellant and trial has also commenced.
32. Counter affidavit has been filed by the respondent wherein the 1st supplementary charge-sheet dated 25.01.2022 has been appended as Annexure-A.
33. It is evident from the counter affidavit that the appellant has been charge-sheeted accused (A-12) of the instant case.
34. After investigation NIA submitted chargesheet against the appellant under section 120B (substantively) of IPC, Section 4 and 6 of the Explosive Substance Act, Sections 16, 18, 20, 38 and 39 of the UA(P) Act, 1967.
35. Accordingly, court of Spl. Judge, NIA took cognizance in charge-sheeted Sections and after supply of police paper, charge has been framed against the appellant and other co-accused persons and trial has already commenced.
36. It is evident from the perusal of charge-sheet that NIA in his investigation found that cadre of the CPI (Maoist) Cr. Appeal (D.B.) No.1141 of 2023 17 hatched conspiracy with the help of the supplied potash by the appellant which is mentioned in para 17.10.2 of the chargesheet. For ready reference the aforesaid para is being quoted herein under:-
"17.10.2: Offences established against the arrested accused Jaiki Paradhi @ Jaiki @ JK (A-12) :
It is established from the investigation that A- 12 is an associate of CPI(Maoist), a banned terrorist organization declared Government of India. Accused A-12 procured potash from one Nyaz Ahamad, aged about 28 years, son of Mustaq Ahamad, resident of Beohari, PS Beohari, District Shahdol, Madhya Pradesh, a fire cracker shop owner. On receiving the potash from Nyaz, A-12 delivered the same to A-11 & A-7 at Chakradharpur, West Singhbhum, Jharkhand. A total of approximately 700 Kgs of potash has been procured by A- 12 on multiple occasions. The whole network of obtaining Potash was functioning on the directions and supervision of charge sheeted absconding accused persons A-13, A-14 and A-43. The said Potash was used by the armed cadres of CPI (Maoist) as an explosive chemical in IED blasts. Therefore, as per averments made in Pre-Paras, it is established that A-12 became a member of CPI (Maoist). A-12 had procured and provided Potash which was used in the incident at Lanji, resulting in the killing of 03 police personnel and causing serious injuries to 03 others. Thereby, accused A-12 has committed offences u/s. 120B (Substantively) of IPC & Sections 16, 18, 20, 38 & 39 of UA(P) Act, 1967 and Sections 4 & 6 of Explosive Substance Act".
Cr. Appeal (D.B.) No.1141 of 2023 18
37. Thus from perusal of the charge-sheet it appears that the present appellant (A-12) on the demand received from Sukhram Ramtai (A-11), procure Potash from one Neyaj Ahmad village Beohari District Sahdol, Madhya Pradesh, a fire cracker shop owner, and on receiving potash from Neyaj, the appellant delivered the same to A-11 at Chakradharpur, West Singbhum, Jharkhand and A-11 along with A-7 received the consignment from A-12 on multiple occasions and transported to the house of A-3 Nelson Kandir located at village Jongro, Kharsawa. A-3 further hand over the potash to A-33 Mangal Munda, A-34 Suleman Kandir and A-42 Sawan Tuti to deliver the same to the armed cadres of CPI Maoist A-13, A-14 and A-42.
38. It appears that a total approximately 700 Kg potash was procured on multiple occasions by A-11 and A-7 and the same potash was delivered by the present appellant and whole network of obtaining potash was functioning on the direction and supervision of charge-sheeted accused persons A-13, A-14 and A-43 and said potash was used by the armed cadres of CPI (Maoist) as an explosive chemical used in IED blast. The said facts were also corroborated with the statement of protected witness F.
39. The role of appellant in the instant crime and conspiracy is also mentioned in the second supplementary chargesheet para 17.5.1. wherein A-1 had disclosed that Cr. Appeal (D.B.) No.1141 of 2023 19 FIR named accused A-11 used to collect explosive materials from the appellant and A-11 used to further deliver it to the cadres of CPI Maoist. Further the role of appellant namely Jaiki Paradhi @ Jaiki @ JK @ Jaiki @ JK (A-12) has also been corroborated by another accused Nelson Kandir (A-3).
40. Further, role of the appellant (Jaiki Paradi A-12) and other accused persons Sukhram Ramtai (A-11) also found mentioned in para 17.6.1 of second supplementary charge-sheet in the instant case wherein it is alleged that Anal Da A-13, Maharaj pramanik A-14, Amit Munda A-43, armed cadre of the CPI Maoist who are absconding were running a network for the procurement and supply of explosive chemicals, specially Potash which is an important ingredient for assembling improvised explosive device (IED) used to triggering blast targeting the security forces and Nelson Kandir A-3, Sorto Mahli A-7, Sukhram Ramtai A-11, Jaiki Paradhi @ Jaiki @ JK A-12, Mangal Munda A-33 ,Suleman Kandir A-34 and Sawan Tuti A-42 were the members of the said network.
41. Further the appellant in his confessional statement accepted that he was using mobile number 8815346353 and 9630043951 and he was in contact with Sukhram Ramtai (A-11), Sortho Mahli (A-7) (mobile no 9142660287 and 7033475762) Neyaj Ahmad 8871102403 and Nelson Kandir A-3 (mobile no.6203556625 and 9508344017).
Cr. Appeal (D.B.) No.1141 of 2023 20
42. During analysis of CDR of mobile numbers of arrested accused persons, their association is corroborated with the common inter connectivity chart of potash supply chain.
43. Further, the case has also been supported by the deposition of independent witnesses cited as protected witnesses A, B, C D, E, F whose statements were recorded under section 161 of Cr P.C and 164 of Cr.P.C.
44. It is pertinent to mention here that the appellant was remanded in this case from Kharsawa P.S. Case no. 105 of 2020 dated 25.12.2020.
45. It has come on record that the appellant is having two criminal antecedents of like nature and first one is Kharsawa P.S. Case no. 105 of 2020 and second one is Kharsawa P.S. Case no. 07 of 2021 registered under sections 120B of IPC and under section 17 of CLA Act.
46. Thus, it appears from the aforementioned paragraph of the charge-sheet that the appellant was member of the CPI Maoist a banned terrorist organisation declared by the Govt. of India and on the basis of available disclosure statement under section 161 and 164 Cr P.C it is brought on record that the appellant was part of the criminal conspiracy hatched with association and direction of armed cadres of CPI Maoist.
Cr. Appeal (D.B.) No.1141 of 2023 21
47. Thus, it appears from the content of the charge- sheet that there is prosecutable evidence against the appellant which is supported by documentary as well as oral evidence of the witnesses of chargesheet.
48. Further, it appears from record that the appellant had a clear knowledge that CPI (Maoist) is a proscribed terrorist organization and involved in many terrorist acts across the State. Despite having such knowledge, he continued his nexus with the said terrorist organization and he acted in blatant contravention of laws and impair the safety and security of citizens and the State.
49. Thus, from perusal of the various annexures and paragraphs of the charge sheet, it prima facie appears that the appellant has associated himself with terrorist organisation CPI (Moist) knowingly and aided the said organisation voluntarily to further its terrorist activities. Recently, the Hon'ble Apex Court has also held in the case of Arup Bhuyan Vrs. State of Assam & Anr., reported in (2023) 8 SCC 745 that being a member of the banned organization is also an offence under the UA(P) Act.
50. Learned counsel for the appellant has taken the ground of custody and has also taken the aid of the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb (supra).
Cr. Appeal (D.B.) No.1141 of 2023 22
51. It has been contended by taking aid of the aforesaid judgment that in the instant case there is 169 witnesses and there is no probability in near future that trial will be concluded, hence, taking into consideration the period of custody, and probable delay in trial, it is a fit case where the appellant deserves to be released from judicial custody.
52. While, on the other hand, learned counsel appearing for the respondent has seriously disputed the aforesaid fact apart from the merit that the present appellant is having a close association with the CPI (Maoist) a banned organization.
53. The contention has been made that the judgment relied upon by the learned counsel for the appellant i.e. the judgment rendered by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb (Supra), is not fit to be accepted, reason being that in the said case, the Hon'ble Apex Court taking in to consideration the huge number of witnesses i.e. 276, put a pin-pointed question therein for reducing the number of witnesses by the investigating agency and when the same has been shown to be not possible then the Hon'ble Apex Court, by taking into consideration the period of custody and there is no likelihood of conclusion of the trial in near future, has not interfered in the order granting bail to the respondent- accused.
Cr. Appeal (D.B.) No.1141 of 2023 23
54. But here in the instant case, the appellant is closed associate by giving direct aid to the Naxal outfit and supplying 700 kg potash which was eventually used to carry the IED blast which resulted into death of 03 police personnel.
55. Further, on instruction, it has been submitted by the learned counsel appearing for the Respondent-State that the prosecuting authority depending upon the situation will also reduce the number of witnesses and try to conclude the trial without any unnecessary delay as such in aforesaid fact the judgment as relied by the learned counsel for the appellant is not applicable in the facts of the instant case.
56. Further, it has come on record that the appellant is having nexus with the banned extremist organisation and having two criminal antecedents of similar nature as such, submission has been made that the release of appellants on bail would adversely affect the trial and he may influence the independent witnesses, might tamper evidence of this case and as such, his detention in judicial custody is required for the fair trial of this case and for the ends of Justice.
Summation
57. Considering the above facts and circumstance and after going through the evidence of the prosecution Cr. Appeal (D.B.) No.1141 of 2023 24 witnesses, case diary, chargesheet and other documentary evidence recorded by the NIA it is evident that there is direct and serious allegation against the appellant that in connivance with A-11 Sukhram Ramtai, the present appellant supplied potash, explosive chemical at Chakradharpur station to CPI Maoist A-7 and further it was handed over to A-3, A-33, A-34 and A-42 to deliver the same to the armed cadres of CPI A-13, A-14 and A-42 who used the said Potash in IED blast on 04.3.2021 when armed troops were moving on the forward slope of Lanji forest hills under PS Toklo in which three security personnel were killed and few became seriously injured. Therefore, allegation against petitioner appears to be very serious in nature and a prima facie case is made out against him.
58. So far as the argument regarding reliance having been placed upon the judgment of Union of India vs. K.A. Najeeb (Supra) is concerned, this Court is of the view that in the facts and circumstances the aforesaid judgment will not be applicable herein since in the said case altogether 276 charge-sheeted witnesses were to be examined and on the pin-pointed question by the Hon'ble Apex Court, the investigating agency has submitted that there is no question of reducing the number of charge-sheeted witnesses and in view thereof and considering the period of Cr. Appeal (D.B.) No.1141 of 2023 25 custody, i.e., more than 5 and half years and also taking into consideration the spirit of Article 21 of the Constitution of India the Hon'ble Apex Court has not interfered in the order by which the bail was granted to respondent-accused.
59. While, the fact of the instant case is that there are only 169 witnesses which is very much less in comparison to 276 witnesses of aforesaid case and the present appellant is having two criminal antecedents of like nature.
60. Further, in the instant case it has been submitted by the learned counsel appearing for the state on instruction that in course of trial, the number of charge- sheeted witnesses may also be reduced depending upon the situation and trial may be concluded in shortest time period.
61. Further, the appellant is the active member of the banned organization and he has direct role as supplier of the blast material as per the discussion made hereinabove.
62. This Court considering the aforesaid distinguishing fact in the present case by taking into consideration the active involvement of the appellant in the extremist activities being direct associate of the banned organization and further taking in to gravity of the offence, is of the view that the judgment rendered by the Hon'ble Apex Court in the case of Union of India vs. K.A. Najeeb (Supra) is not fit to be applied herein.
Cr. Appeal (D.B.) No.1141 of 2023 26
63. It is pertinent to mention here that an application for bail (Cr. Appeal (DB) No. 399 of 2022) has been preferred by the co-accused persons namely Sorto Mahali @ Don @ Rava @Tiera Mahli (A-7) and Ramrai Hasda @ Ramrai Hansda (A-1) which has been dismissed vide order dated 18.01.2023 by the Co-ordinate Bench of this Court.
64. Accordingly, this Court, on the basis of the facts as referred hereinabove and coming to the provision of Section 43D(5) of the Act, 1967 as also the judgment rendered by the Hon'ble Apex Court in the case of Zahoor Ahmad Shah Watali (supra) is of the view that it cannot be said that the allegation levelled against the appellants is prima facie untrue.
65. In view of the foregoing discussions, we find no illegality in the impugned order dated 10.05.2023 passed in Misc. Cr. Application No.1284 of 2023 by AJC-XVI-cum- Spl. Judge, NIA, Ranchi rejecting the application of the appellant, as such order impugned requires no interference by this Court.
66. In the result, we find no merit in instant appeal, hence, the same is dismissed.
67. Pending Interlocutory Application(s), if any, also stands dismissed.
68. It is made clear that any observation made herein will not prejudice the case of the appellant in course of trial Cr. Appeal (D.B.) No.1141 of 2023 27 and view as expressed by this Court is only limited to the instant appeal.
(Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) Birendra/A.F.R.