Jharkhand High Court
Pankaj Kumar Singh vs Union Of India Through National ... on 4 December, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 596 of 2024
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Pankaj Kumar Singh, aged about 49 years, son of Sri
Shyam Nandan Singh, resident of Azad Nagar, Bhuli, Post
and Police Station bank More, District Dhanbad.
.... Appellant
Versus
Union of India through National Investigation Agency
.... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
.....
For the Appellant : Mr. Ravi Kumar Singh, Advocate
For the Respondent : Mr. Amit Kumar Das, Advocate
Mr. Saurav Kumar, Advocate
.....
C.A.V. on 26/11/2024 Pronounced on 04/12/2024
Per Sujit Narayan Prasad, J.:
Prayer
1. The instant appeal under Section 21(4) of the National Investigation Agency Act, 2008 is directed against the order dated 08.04.2024 passed by the learned Additional Judicial Commissioner-XVI-cum-Spl. Judge, NIA, Ranchi in Misc. Criminal Application No. 672 of 2024 arising out of ATS Ranchi P.S. Case No. 01 of 2021 corresponding to Special (NIA) Case No. 4 of 2021, by which the prayer for regular bail of the appellant has been rejected.
Factual Matrix
2. The prosecution case, in brief, as per the allegation made in the FIR, read as under:
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3. The prosecution case is based upon the typed report of sub inspector Vishal Pandey of ATS on 14.11.2021. In his typed report SI Vishal Pandey alleged that while investigation of the Tandwa P.S. Case No. 132/2021 he came to know that Avinash Kumar S/o Jairam Sharma and few other persons are supplying arms and ammunitions to miscreants and extremist groups. Accordingly, the ATS Ranchi P.S. Case No. 01/2021 has been registered.
4. The Central Government received an information regarding the registration of FIR No. 01/2021 dated 14.11.2021 P.S. ATS, Ranchi, Jharkhand, u/s. 120-B of IPC, Section 17 of CLA Act, Section 25(1-b) 2 A/26/35 and Section 13, 19, 20, 21 of U.A.P. Act, 1967 related to supply of arms and ammunition to maoist organization and criminals.
5. The accused Avinash Kumar @ Chunnu, Rishi Kumar, Pankaj Kumar, Sanjay Kumar Singh, Mujahid Khan and others, being members of the gang involved in unlawful activities, have criminally conspired to supply arms and ammunitions to the cadres of the Communist party of India (Maoists), and to the members of the terrorist gang of Aman Sahu.
6. The arms and ammunitions so provided are being used to execute terrorist attacks on the security forces by -3- the Maoists. The members of the Aman Sahu gang are using the said arms and ammunitions to fire at different places and injure persons for the purpose of extortion. The above conspirators have been holding arms unlawfully and have been string them for their further supply to the members of CPI (Maoist).
7. They are also harbouring the members of the terrorist gang of Aman Sahu and are involved in holding the proceeds derived out of this unlawful activity of supporting the terrorist. Whereas it has been found that civil contractors Mujahid Khan and Sanjay Singh have been working closely with the members of the CPI(Maoist) by providing them funds and other essential supplies for furthering their terrorist activities.
8. Mujahid khan supplied 250 live rounds (ammunition) of INSAS to the Maoists. For procuring these rounds Mujahid Khan paid Rs. 1,75,000/- to the accused Rishi Kumar. The said conspirators were procuring the arms and ammunitions illegally and were storing them at different locations, for their onward supplies. 450 rounds of 5.56 MM ammunitions were recovered by the police near the Sheikh Bhikhan Memorial of Chutupalu Ghati on the pointing out of the accused Rishi Kumar and Avinash Kumar. -4-
9. These rounds were to be supplied to the terrorist gang of Aman Sahu. Apart from the ammunitions, the conspirators are also procuring country made pistols and are supplying it to the members of the terrorist gangs.
10. It appears from the record that initially FIR was instituted by the Anti-Terrorist Squad being ATS Ranchi P.S. Case No. 01 of 2021 for commission of offence under Section 120-B of IPC, Section 17 of CLA 3 Act, Section 25(1-b) A/26/35 and Section 13, 19, 20, 21 of U.A.P. Act, 1967.
11. The Central Government in exercise of power conferred under sub-section (5) of Section 6 read with Section 8 of the National Investigation Agency Act, 2008 vide order no. 11011/73/2021/NIA dated 03.12.2021 directed the NIA to take the investigation.
12. In compliance of the aforesaid order, NIA After lodging of the case, the NIA investigated the case and filed charge-sheet wherein in addition to the above story, as narrated above, allegation against the appellant has been narrated as follows:
"Investigation has revealed that accused A-3 is closely associated with A-2, A-4 A-5 and he was a conduit between A-2 & A-5, in the supply chain of arms and ammunitions. Investigation has also revealed that during 2021, A-3 got instruction from accused A-5 for procuring -5- INSAS rifle; however, the same could not be arranged at that time. Investigation has also established that A-4 had approached A-3 for selling of his un-licensed Pistols and which is also corroborated by the photographs of a pistol, shared on the WhatsApp. It is also established from the investigation that on following occasions accused A-3 had assisted A-2 in purchasing of ammunitions of 5.56 MM calibre. The details are as under:-
Sl. Period No. of Live Amount
No Ammunition received by
A-3
01 Feb, 2020 200 Rds of 5.56 MM Rs. 5000/-
02 March, 200 Rds of 5.56 MM Rs. 5000/-
2020
03 Sept., 2021 450 Rds of 5.56 MM Rs.
10,000/-
13. In addition to above, some photographs of Arms have been extracted from whatsapp messages of the appellant.
14. In consequences of the aforesaid, the present appellant was arrested and Thereafter, he had preferred Misc Criminal application no 1133/2022 before court for grant of bail but the same has been rejected vide order dated 16.7.2022 against the aforesaid order the present appellant moved before this Court in Criminal appeal (DB) No.1387/2022 which was dismissed as withdrawn on 22.2.2023.
15. It needs to refer herein that the appellant again filed Misc Criminal application no 847/2023 for regular bail -6- which was again rejected vide order dated 28.3.3023, thereafter petitioner again moved to this Court by way criminal appeal (DB) No 584/2023 but the was dismissed on merit by this Court vide order dated 10.8.2023.
16. Thereafter, again the appellant had preferred an application being Misc. Criminal Application being Misc.
Criminal Application No. 672/2024 but the same was again dismissed by the special court vide order dated 08/04/2024 against which the instant appeal has been preferred.
Submissions by the learned counsel for the parties
17. Learned counsel for the appellant argued the case on merit, which has seriously been objected by learned counsel for the respondent-NIA on the ground that regular bail of the appellant has already been decided on merit vide order dated 10th August, 2023 in Cr. Appeal (DB) No. 584 of 2023 by the co-ordinate Bench of this Court, which has not been challenged before the higher forum, hence, it is not available for the appellant to agitate on the ground of merit.
18. Upon this, learned counsel for the appellant has submitted that he is now only agitating the issue of incarceration of three years even though out of 152 witnesses only 8 witnesses have been examined. -7-
19. In support of this argument, learned counsel for the appellant has relied upon the judgment passed by Hon'ble Apex Court in the case of Union of India vs. K.A. Najeeb [(2021) 3 SCC 713] as also in the case of Jalaluddin Khan Vs. Union of India in Cr. Appeal No. 3173 of 2023.
20. Learned counsel for the appellant also relied upon the order passed in the case of Bhikham Ganjhu @ Deepak Ganjhu in Cr. Appeal (DB) No. 297 of 2023, wherein the appellant remained in custody for less than two years, the Co-ordinate Bench of this Court allowed the appeal directing the appellant to release him on bail.
21. Learned counsel for the appellant based upon the aforesaid ground has submitted that the impugned order passed by learned trial court suffers from error and requires interference by this Court.
22. In response thereto, Mr. Das, learned counsel for the respondent-NIA has submitted that it is incorrect on the part of the appellant that there is no progress in the trial.
23. It has further been submitted that on fact neither the judgment passed by Hon'ble Apex Court in the case of Union of India vs. K.A. Najeeb [supra] nor the judgment passed in Jalaluddin Khan Vs. Union of India (supra) is applicable so far as present case is concerned.
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24. It has further been submitted that prayer for regular bail of the appellant has been rejected on merit vide order dated 10th August, 2023 in Cr. Appeal (DB) No. 584 of 2023 by the co-ordinate Bench of this Court and thereafter altogether 8 witnesses have been examined and now the Court is only dedicated Court for adjudicating the NIA matters and all sincere endeavor has been taken to expedite the trial and even if the requirement will be there even the examination of number of witnesses will be curtailed but at this stage it would be too early to assess, reason being that there might be possibility of some witnesses to become hostile.
25. Mr. Das, learned counsel for the respondent-NIA has submitted although it has not been stated in the counter affidavit but his submission may be recorded as an officer of the Court.
26. The learned counsel appearing for the respondent- NIA based upon the aforesaid ground has submitted that the impugned order requires no interference by this Court, hence the instant appeal is fit to be dismissed. Analysis:
27. We have heard the learned counsel for the parties, perused the material available on record, the pleading made on behalf of the appellant as available in Memo of -9- Appeal and the counter affidavit filed on behalf of the National Investigation Agency.
28. It is evident from the factual aspect that the informant Vishal Pandey was investigating Tandwa PS case no 132/2021, he got information that one of the accused Avinash Kumar was supplying cartridges and ammunitions to members of Naxal outfit and other anti- social gang members. Thereafter he arrested Avinash Kumar and on basis of his confessional statement name of the present appellant was emerged as a person who supplied 200 cartridges of Insas rifle in the year 2020 to Sanjay Kumar Singh to further supply to Maoist cadres. Thereafter petitioner was arrested and remanded to judicial custody.
29. Thereafter, present appellant had preferred Misc Criminal application no 1133/2022 before court for grant of bail but the same has been rejected vide order dated 16.7.2022 against the aforesaid order the present appellant moved before this Court in Criminal appeal (DB) No.1387/2022 which was dismissed as withdrawn on 22.2.2023.
30. It needs to refer herein that the appellant again filed Misc Criminal application no 847/2023 for regular bail which was again rejected vide order dated 28.3.3023, thereafter petitioner again moved to this Court by way
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criminal appeal (DB) No 584/2023 but the was dismissed by this Court vide order dated 10.8.2023.
31. Thereafter, again the appellant had preferred an application being Misc. Criminal Application being Misc. Criminal Application No. 672/2024 but the same was again dismissed by the special court vide order dated 08/04/2024 against which the instant appeal has been preferred.
32. At the outset the learned counsel for the respondent NIA raised the issue of maintainability of the instant appeal on the ground that the prayer for bail of the appellant has already been rejected on merit by the Co- ordinate Bench of this Court vide order 10th August, 2023 passed in Cr. Appeal (DB) No. 584 of 2023 and the appellant without assailing the aforesaid order before higher forum has preferred the instant appeal.
33. Per contra the learned counsel for the appellant has submitted that he is now only agitating the issue of incarceration of three years of the appellant and further till, date, out of 152 charge-sheeted witnesses only 8 witnesses have been examined.
34. In support of this argument, learned counsel for the appellant has relied upon the judgment passed by Hon'ble Apex Court in the case of Union of India vs. K.A. Najeeb [(2021) 3 SCC 713] as also in the case of
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Jalaluddin Khan Vs. Union of India in Cr. Appeal No. 3173 of 2023.
35. From perusal of the record, it is evident that admittedly, the prayer for bail of the appellant has already been rejected on merit by the Co-ordinate Bench of this Court vide order 10th August, 2023 passed in Cr. Appeal (DB) No. 584 of 2023, for ready reference the relevant paragraphs of the aforesaid order are being quoted as under:
18. It is evident from the aforesaid paragraphs that the direct complicity of the appellant has been surfaced who was found to be supplying ammunitions to the banned terrorist organization and other terrorist gang including the gang of Aman Sahu (A-10). The arms and ammunition so provided by the accused persons to the armed cadres of CPI (Maoist) and Aman Sahu gang were being used to execute attacks on security forces and for carrying out terrorist activities and also to create terror among the local public, who are involved in government development projects.
20. It is evident from the aforesaid imputation as gathered in course of investigation as referred hereinabove that the complicity of the appellant is very much apparent in getting the supply of the arms and ammunitions from the constable of the CRPF and BSF for its onward transmission by way of selling it to the banned terrorist organization and the extremist gang.
21. It further appears that while analyzing CDR and IPDR that the location of the mobile phones of A-5 and A- 9 were found in Ferozpur (Punjab) which according to the investigating agency establishes that A-5 had gone to Ferozpur, Punjab to take supply of the ammunitions.
While analyzing the mobile number of A-3, the appellant herein, and A-5, it establishes that they were
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in contact during the relevant period of delivery, i.e., in the month of July, 2021. While analyzing A-2, A-3 and A-4, it also establishes that they were closely associated.
22. It further appears from paragraph-17.7.03 that the investigation revealed that A-3 was closely associated with A-2, A-4 and A-5 and were working as a conduit between A-5 and A-2 in supply chain of arms and ammunitions. It has also been established that A-3 was in process to obtain/purchasing of INSAS rifle from North East. 23. This Court, in view of the aforesaid material gathered in course of investigation against the appellant, is not prima facie satisfied as the material so gathered is untrue.
36. The learned counsel for the appellant has renewed the prayer for bail mainly on the ground of long incarceration of the appellant i.e., of three years and further in trial out of 152 witnesses only 8 charge- sheeted witnesses have been examined, as such there is remote chances of case being decided in near future.
37. This Court in order to appreciate the argument advanced on behalf the learned counsel for the parties, is now proceeding to go through the ration laid down by the Hon'ble Apex Court in the case of K.A. Najeeb (supra), and further to examine that whether the said judgment is applicable in the fact and circumstances of the instant case or not.
38. In K.A. Najeeb's (supra), the Hon'ble Apex Court was confronted with a circumstance wherein except the respondent-accused, other co- accused had already
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undergone trial and were sentenced to imprisonment of not exceeding eight years therefore the Hon'ble Apex Court while considering the fact that since the respondent- accused had already served portion of the maximum imprisonment i.e., more than five years, hence not interfered in the order granting bail.
39. Further, in K.A. Najeeb's case the trial of the respondent-accused was severed from the other co- accused owing to his absconding and he was traced back in 2015 and was being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said accused.
40. 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.
41. But in the instant case, as per the averment out of 152 charge-sheeted witnesses 8 witnesses have been examined. Further in the instant case direct nexus has been shown by the charge-sheet and from the relevant
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part of charge-sheet which was quoted in the order dated 10.08.2023 passed by the Co-ordinate Bench in criminal appeal (DB) No 584/2023 it is evident that the present appellant had supplied 200 cartridges of Insas rifle in the year 2020 to Sanjay Kumar Singh to further supply to Maoist cadres. Further he provided assistance to the armed cadres of CPI Maoist and criminal gang with intention to execute attacks on security forces to create panic and terror amongst local contractors and businessmen.
42. Thus, this Court is of the view that in the facts and circumstances the judgment rendered by the Hon'ble Apex court in Union of India Vs. K.A. Najeeb (supra) will not be applicable in fact and circumstances of instant case.
43. Further the learned counsel for the appellant has also put his reliance on the judgment rendered by the Hon'ble Apex Court in the case of Jalaluddin Khan v. Union of India, 2024 SCC OnLine SC 1945 wherein as per the prosecution case, the appellant's wife was the owner of a building known as Ahmad Palace and that the appellant had clandestinely shown that premises on the first floor of the said building were given on rent to one Athar Parwez - accused no. 1. The allegation is that, the first-floor premises are being used for objectional
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activities of an organization called Popular Front of India (PFI).
44. The Hon'ble Apex Court while taking into consideration the fact that on plain reading of the charge sheet, it is not possible to record a conclusion that there are reasonable grounds for believing that the accusation against the appellant of commission of offences punishable under the UAPA is prima facie true, had enlarged the appellant on bail. The Hon'ble Apex Court further held in paragraph 21 of the said judgment that the rule also means that once a case is made out for the grant of bail, the Court cannot decline to grant bail. If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.
45. This Court is conscious with the fact that personal liberty as enshrined in Article 21 of the Indian Constitution has utmost importance but that is to be assessed by carving out the balance in enforcing the law and order.
46. Herein in the case on the basis of investigation it is revealed that appellant has direct nexus with the Maoist and he had supplied 200 cartridges of Insas rifle in the year 2020 to Maoist cadres and it has come during investigation that he had provided assistance to the
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armed cadres of CPI Maoist and criminal gang with intention to execute attacks on security forces to create panic and terror amongst local contractors and businessmen. But in the aforesaid case i.e. Jalaluddin Khan v. Union of India, (supra) there is only allegation as per the prosecution against the appellant that appellant's wife was the owner of a building known as Ahmad Palace and that the appellant had clandestinely shown that premises on the first floor of the said building were given on rent to one Athar Parwez - accused no. 1. and the first-floor premises are being used for objectional activities of an organization called Popular Front of India (PFI).
47. Prima facie the said allegation was not found correct by the Hon'ble Apex Court, but in the instant case earlier this Court on merit, vide order dated 10.08.2023 passed in criminal appeal (DB) No 584/2023 while taking into consideration the various paragraph of the charge-sheet has prima facie found the allegation against the present appellant true, as such in the present fact and circumstances of the case the judgment relied upon by the appellant rendered by the Hon'ble Apex Court in the case of Jalaluddin Khan v. Union of India,(supra) is not applicable.
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48. Learned counsel for the appellant has also relied upon the order passed by the Co-ordinate Bench in the case of Bhikham Ganjhu @ Deepak Ganjhu in Cr. Appeal (DB) No. 297 of 2023, and has submitted that the appellant of the said case remained in custody for less than two years and even then the Co-ordinate Bench of this Court allowed the appeal directing the appellant to release him on bail, as such the present appellant may be enlarged on bail by quashing the impugned order. In the aforesaid context this Court has gone through the said order and from perusal of the same it is evident that in the said case none of the witnesses have been examined and the appellant is languishing in judicial custody since 13.09.2022 but apart this consideration the Co-ordinate Bench has considered that there is no recovery from the physical or conscious possession of the appellant rather the appellant has been implicated in this case on the basis of the information received from the confidential source but there is no reference of any name of the villagers as to who has disclosed the name of the appellant.
49. But in the instant case prima facie the direct nexus of the appellant with the Maoist has been established by the investigating agency which would be evident from the order dated 10.08.2023 as mentioned herein above, thus the aforesaid contention of the learned counsel for the
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appellant will not be applicable in the fact of the instant case.
50. Further, it is settled proposition of law that the applicability of the judgment depends upon the facts and circumstances of each and every case and there cannot be any universal application of the judgment rather each judgment is to be decided on the basis of fact of each case. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Supreme Court in Dr. Subramanian Swamy vs. State of Tamil Nadu & Ors. reported in (2014) 5 SCC 75 for ready reference the relevant paragraph is being quoted herein under :
"47. It is a settled legal proposition that the ratio of any decision must be understood in the background of the facts of that case and the case is only an authority for what it actually decides, and not what logically follows from it. "The court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed."
51. It needs to refer herein in the case of Gurwinder Singh v. State of Punjab and Another [(2024) SCC OnLine SC 109 the Hon'ble Apex Court in the matter of UAPA, has formulated the concept that bail is rule and jail is exception. Such observation has been made based upon the principle that a balance is to be maintained in between the personal liberty and the societal impact. The Hon‟ble Apex Court further observed that the conventional idea in
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bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft- quoted phrase - "bail is the rule, jail is the exception‟ - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act and the 'exercise‟ of the general power to grant bail under the UAP Act is severely restrictive in scope.
52. In the case of Shoma Kanti Sen v. State of Maharashtra, (2024) 6 SCC 591 the Hon'ble Apex Court has observed that any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case, for ready reference the relevant paragraph of the aforesaid judgment is being quoted as under:
46. Pre-conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same accused. Depending on gravity and seriousness of the offence alleged to have been committed by an accused, detention before conclusion of trial at the investigation and post charge-sheet stage has the sanction of law broadly on these reasonings.
But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a
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just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law courts would have to apply while testing prosecution's plea of pre-trial detention, both at investigation and post charge-sheet stage.
53. Thus, it is evident from the aforesaid settled position of law that any form of deprival of liberty must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case.
Conclusion
54. Considering the aforesaid ratio and its applicability in the instant case it is evident that Co-ordinate Bench vide order dated 10.08.2023 passed in Criminal Appeal (DB) No. 584 of 2023 while rejecting the prayer for bail of the present appellant has already found that the alleged allegation against the present appellant has substance which would be evident from the various paragraph of the said order as quoted hereinabove.
55. Thus, on the basis of aforesaid discussion this Court is of the view that since the Co-ordinate Bench has already taken a view while rejecting the prayer for bail on merit and as such taking into consideration the nature of allegation and nature of gravity and also the involvement of the present appellant as has been taken note by the Co-
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ordinate Bench at various Paragraph thereof, no interference is required in the impugned order.
56. Therefore, this Court is of the view that no interference is required in the impugned order as also the trial is in progress.
57. Accordingly, the instant appeal being Cr. Appeal (DB) No. 596 of 2024 stands dismissed.
I Agree (Sujit Narayan Prasad, J.) (Navneet Kumar, J.) (Navneet Kumar, J.) Jharkhand High Court, Ranchi Alankar / A.F.R.