Jharkhand High Court
Sajjan Kumar Bhuiya vs The State Of Jharkhand Through Nia on 6 February, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 2144 of 2023
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Sajjan Kumar Bhuiya, aged about 26 years, son of Late Kameshwar
Bhuiya, resident of village Chakla, P.O. and P.S. Chandwa, District-
Latehar.
... ... Appellant
Versus
The State of Jharkhand through NIA ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellants : Mr. R.S. Mazumdar, Sr. Advocate
Mr. Nishanth Roy, Advocate
For the Respondent : Mr. Saurav Kumar, Advocate
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ORAL ORDER
03/Dated: 06th February, 2024 . Per Sujit Narayan Prasad, J . Prayer
1. The instant appeal filed under Section 21(4) of the National Investigation Agency Act, 2008, is directed against the order dated 13.10.2023 passed by the learned Additional Judicial Commissioner-XVI-cum-Special Judge, NIA, Ranchi in Misc. Criminal Application No. 2186 of 2023 arising out of Special NIA Case No. 03 of 2022, by which the prayer for regular bail of the appellants in connection with R.C. Case No. 02/2022/NIA/RNC arising out of Lohardaga Peshrar P.S. Case No.5 of 2022 registered under Sections 147, 148, 149, 307, 353 and 414 of IPC; under Sections 25(1-A), 25(1-B)a, 26, 27 and 35 of the Arms Act; under Section 10, 13, 14, 15 and 18 of UA(P) Act; under Section 3/4/5 of Explosive Substances Act and under Section 17 of CLA Act, has been rejected.
Facts
2. The brief facts of the prosecution case leading to this Criminal Appeal is that, an information was received by Jharkhand Police that, Regional 2 Commander of CPI (Maoist), terrorist organization, a proscribed Ravindra Ganjhu along with his active cadres of CPI (Maoist), Balram Oraon, Muneshwar Ganjhu, Balak Ganjhu, Dinesh Nagheshia, Aghanu Ganjhu, Lajim Ansari, Markush Nagheshia, Sanjay Nagheshia, Sheela Kherwar, Lalita Devi, and 45-50 other cadres had assembled in the forest area of Bulbul and were planning to execute an incident against the security forces and in the Bauxite mines area and there after upon getting information they said OPS plan was chalked out and operation team consisting of officers/officials of Cobra-203/209, Jharkhand Jaguar, CRPF and district Police were made and an extensive search operation 08.02.2022. was carried out from 08.02.2022.
That operation, in continuation of above search 17.02.2022, on based on the information Operation Plan Number-48 was made out which consists of three search team's consisting of Local Police, Cobra and IRB. They proceeded towards the Bahabar Jungle. On their way one search team was ambushed and was fired upon indiscriminately by the CPI (Maoist). The search party retaliated the fire in self- defense. On being dominated by police, the Maoists fled in different directions, taking advantage of the dense forest. A search was conducted following the incident. During the search arms, ammunition and other materials i.e. 5.56 MM Insas rifle- 01, Country made pistol- 01, 5.56 mm rounds of Insas- 86 rounds. Rounds- 328 rounds, SLR Rounds- 1123 rounds, SLR Magazine-11, Insas Magazine- 04, Insas LMG magazine-02, huge quantity of IED making materials, Maoist related documents and diaries and Naxal dresses were recovered.
When the search was continued on the next day i.e. on 19.02.2022, the team found 07-08 Pithu (back-pack) bags. During the thorough search of the bags incriminating items were recovered and seized. Further, on 20.02.2022, as per operational plan number 51, additional search teams were sent to conduct search and apprehend armed cadres of CPI (Maoist) with the co-ordination of previous search team, incriminating items i.e. Naxal related documents and diaries, Unistar Jungle shoes, Naxal uniform, letter pad (05), note book (10) & daily need items were recovered and seized.
3Further, on 21.02.2022, search team number 2 found one suspicious person at village HarkattaToli under PS-Peshrar. On being asked he revealed his name as Sanjay Nagesia (A-9), S/o Late Jagmohan Nagesia, Vill-Korgo, PS-Bagdu, Dist- Lohardaga. During his personal search Naxal Pamphlet, diaries (08), IED (01), Naxal dress and IED making materials were seized. Suspect Sanjay Nagesia was formally arrested. The explosive items were disposed on the spot by the BDDS team.
The police team chased the Maoist and apprehended three persons. During interrogation, they revealed that one of their associates had fled towards Bhusakhad One (Kisko). person namely Markush Nagesia was searched and one grey coloured Pitthu (back-pack) bag, containing one combat dress, 15 rounds 5.56 mm live ammunition and book containing Naxal literature was found from his possession and was accordingly seized.
It is stated that one hard-core Maoist Balram Oraon along with his three cadre members were also apprehended during the raid. On being searched Rs 2,09,050/- (which was wrapped in green plastic) was recovered from one Balram Oraon. On being further interrogated regarding arms, ammunition and explosives he disclosed that he handed over his arms and ammunition to his associates who fled on the other side of the jungle. After confirming the names and addresses CPI (Maoist) cadre members, Shaileshwar Oraon, Shailendra Nagesia, Markush Nagesia, Mukesh Korba was arrested. Woman Maoist Sheela Kherwar was also arrested at Police Station Peshrar. Total nine-armed cadres of CPI (Maoist) were arrested on 21.02.2022.
3. Accordingly, on the basis of the written report, Lohardaga Peshrar P.S. Case No.5/2022 dated 21.02.2022 was lodged u/s 147, 148, 149, 307, 353, 414 of IPC, sections 25 (1A)/25 (1-B) a, 26, 27, 35 of Arms Act, 3, 4, 5 of Explosive substance Act 1908, section 17 of CLA Act and sections 10, 13, 14, 15 and 18 of UAP Act 1967, at PS Peshrar, District Lohardaga.
4. The Ministry of Home Affairs (MHA), Government of India, in view of the gravity of the offence and its cross border and international 4 ramification, issued orders in exercise of power vested under Section 6(5) read with section 8 of the NIA Act 2008 and directed the NIA to take up the investigation of the aforesaid case.
5. On the direction of the Ministry of Home Affairs, NIA re-registered the case being NIA Case no 02/2022/NIA-RNC dated 14.06.2022 under sections 147, 148, 149, 307, 353, 414 of IPC, sections 25 (1A)/25 (1-B) a, 26, 27, 35 of Arms Act, 3, 4, 5 of Explosive substance Act 1908, section 17 of CLA Act and sections 10, 13, 14, 15 and 18 of UAP Act 1967 against 17 named accused persons (members of Maoist Organization) and 30-35 unknown.
6. During the Investigation by NIA, lots of documents 1.e. pocket diary note book, letter pad, Maoist books were seized and the details about the collection of levy/extortion money is also mentioned in diary, which establishes that the fund was raised for CPI (Maoist). The diary also mentions about the details of arms and ammunition which corroborates with the seizure of the same.
7. During the course of investigation it has been revealed that one of the accused Raju Kumar Raju Sahu (A-29), along with his associates, used to provide shelter to absconding accused Ravinder Ganjhu, at his various Brick kiln located at forest area of district Lohardaga and Latehar, It has been further revealed that Raju Kumar 9 Raju Sahu (A-29) with the help of brick kiln Munshi/staff namely Sajan Kumar Bhuiyan (A-17)i.e. the present appellant, provided shelter, food and other logistic support to the absconding accused Ravinder Ganjhu, Regional committee Member of CPI (Maoist).
Accordingly, searches at 14 locations were carried out and during search Arms, Ammunition, incriminating documents and digital devices were seized, one country made pistol, one magazine and 06 live rounds were seized from room of Sajan Kumar Bhuiyan (A-17) i.e. the present appellant at brick kiln located at Sarantoli, Lohardaga, Jharkhand and accordingly he was examined and due to his suspected role, he was arrested on 09.04.2023.
8. The appellant has been apprehended and taken into custody on 09.04.2023, i.e., after taking over the investigation by the NIA and, as 5 such, prayer for bail was made but the same has been rejected vide order dated 13.10.2023 against which the present appeal has been filed.
9. After investigation 2nd Supplementary Charge sheet, vide number 1A/2023, dated 05th October 2023 has been filed against 3 accused persons, including the present appellant i.e., Sajan Kumar Bhuiya marked as Accused-17 and kept the Investigation pending against other persons appellant/accused. The present appellant is facing charges for the offences under section 120B of the Indian Penal Code, Sections 25 (18) 6 35 of the Arms Act and Section 19 and 39 of the Unlawful Activities (Prevention) Act, 1967.
Submission of the learned counsel for the appellant
10. 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.
(ii) The learned court failed to appreciate and consider that the Appellant has not been found to be a member of any terrorist organization, nor in any manner taken part in any decision-making process of the Naxal organization, thus the appellant cannot be brought within the ambit and scope of Act, 1967.
(iii) No incriminating articles has been recovered from the possession of the appellant and the appellant is not named in the FIR.
(iv) The appellant is not named in the FIR and has been arrayed as an accused in the instant case only on the basis of 2nd supplementary charge-sheet filed by the NIA.
(v) Appellant is in custody since month of April 2023.
(vi) 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 and hence, taking into consideration the period of custody, it is a fit 6 case where the appellant deserves to be released from judicial custody.
11. Learned counsel for the appellant, on the aforesaid premise, has submitted that the learned trial 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 N.I.A:
12. While, on the other hand, learned counsel appearing for the N.I.A. has defended the impugned orders on the following grounds: -
(i) The appellant, named above, is a member of CPI Maoists Organization (a banned Organization).
(ii) That during search, lots of documents, i.e., pocket diary note book, letter pad, moist books were seized. Details about the collection of levy/extortion money is also mentioned in a diary and diary also mentions about the details of arms and ammunitions.
(iii) That one of the accused Raju Kumar @ Raju Sahu, along with associates used to provide shelter to absconding accused Ravinder Ganjhu, at various Brick kiln located at forest area of district Lohardaga and Latehar. Further, Raju Kumar @ Raju Sahu with the help of brick kiln munshi/staff namely, Sajan Kumar Bhuiyan, the present appellant, provided shelter, food and other logistic support to the absconding accused Ravinder Ganjhu, Regional committee member of CPI (Moist).
(iv) During search at 14 locations, arms and ammunitions, incriminating materials and digital devices were seized. One country made pistol, one magazine and 06 live rounds were seized from the room of appellant/accused Sajan Kumar Bhuiyan at brick kiln at Sarnatoli, Lohardaga.
(v) 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, accused having no criminal antecedent and in the said case, nature and background 7 of the offence was different but in the instant case, it has come on record that appellant has direct nexus with the banned organization.
13. Learned counsel appearing for the NIA, therefore, has submitted on the aforesaid premise that the impugned order requires no interference.
Analysis:
14. We have heard the learned counsel for the parties and considered the finding recorded by learned Court in the impugned orders as also the charge-sheet.
15. This Court, before proceeding to examine as to whether the appellant has been able to make out a prima 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) which is required to be considered herein.
16. 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 the Preamble, the Act, 1967 has been enacted to provide for the 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.
17. 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.
18. 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 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 8 "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.
19. 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 or 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.
20. As per mandate of section 13 of the Act, 1967 who takes part in or commits, or advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
21. 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 under Sections 17, 18 and 21 of the UA(P) Act, 1967.
22. 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.
23. 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 9 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 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 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 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...."
24. It is, thus, evident from the proposition laid down by the Hon'ble Apex Court in the case of National Investigation Agency Vrs. Zahoor Ahmad Shah Watali (Supra) that it is the bounden duty of the Court to apply its 10 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.
25. Further, the Hon'ble Apex Court by setting out propounding the law in the same case of National Investigation Agency v. Zahoor Ahmad Shah Watali (supra), has observed that the elaborate examination or dissection of the evidence is not required to be done at this stage and 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. For ready reference paragraph 24 and 25 of the aforesaid judgment is being quoted herein under:-
"24. A priori, the exercise to be undertaken by the Court at this stage-- of giving reasons for grant or non-grant of bail--is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. 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.
25. From the analysis of the impugned judgment, it appears to us that the High Court has ventured into an area of examining the merits and demerits of the evidence. For, it noted that the evidence in the form of statements of witnesses under Section 161 are not admissible. Further, the documents pressed into service by the investigating agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of the impugned judgment). Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 CrPC, on the specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge-sheet already filed against the respondent is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise. That 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 case diary and including the charge-sheet (report under Section 173 Cr.P.C.) and other material gathered by the investigating agency during investigation."
26. 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 said 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 may be made to the Judgment rendered by the Hon'ble Apex Court in the case of Ranjitsing Brahmajeetsing 11 Sharma Vrs. State of Maharashtra, reported in (2005) 5 SCC 294. For ready reference, the following paragraph of the aforesaid Judgment is being referred as 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."
27. 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.
28. The Hon'ble Apex Court in a very recent judgment rendered in Gurwinder Singh Vs State of Punjab and Another reported in 2024 SCC OnLine SC 109 while taking in to consideration of the judgment as rendered in the National Investigation Agency v. Zahoor Ahmad Shah Watali (supra) has observed that, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail and lays down that if the Court, 'on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure', is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond.
The Hon'ble Apex Court further observed that the conventional idea in 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 12 Act and the 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope.
In the aforesaid context it has further been observed by the Hon'ble Supreme Court that the Courts are, therefore, burdened with a sensitive task on hand and in dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail and the 'justifications' must be searched from the case diary and the final report submitted before the Special Court.
29. In the aforesaid background the Hon'ble Apex Court has held that the test for rejection of bail is quite plain and Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It has further been observed that it is only if the test for rejection of bail is not satisfied - that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence).
For ready reference following paragraphs of the aforesaid Judgment are being quoted herein under:
"27. A bare reading of Sub-section (5) of Section 43D shows that apart from the fact that Sub-section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail. It lays down that if the Court, 'on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure', is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43D(5) of the UAP Act. In that sense, the language of bail limitation adopted therein remains unique to the UAP Act.
28. The conventional idea in 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. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)- 'shall not be released' in contrast with the form of the words as found in 13 Section 437(1) CrPC - 'may be released' - suggests the intention of the Legislature to make bail, the exception and jail, the rule.
29. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The 'justifications' must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, 'prima facie' standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of 'strong suspicion', which is used by Courts while hearing applications for 'discharge--"
30. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the test for rejection of bail is not satisfied that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence). This position is made clear by Sub-section (6) of Section 43D, which lays down that the restrictions, on granting of bail specified in Sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail.
31. The Hon'ble Apex Court in the aforesaid judgment after textual reading of Section 43D(5) UAP Act, has formulated the guideline which was summarized in the form of a twin-prong test. For ready reference the relevant paragraph is being quoted as under:
"31. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test:
1) Whether the test for rejection of the bail is satisfied?
1.1 Examine if, prima facie, the alleged 'accusations' make out an offence under Chapter IV or VI of the UAP Act 1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;
2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC ('tripod test')?"
32. This Court, on the basis of the abovementioned position of law and the factual aspect, as has been gathered against the appellant is proceeding to 14 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.
33. This Court had directed the learned counsel for the N.I.A. to file counter affidavit, as would appear from the order dated 11.01.2024 and in pursuance thereto, the counter affidavit has been filed.
34. It is evident from the counter affidavit based upon the material collected in course of investigation as in the charge-sheet that one of the accused Raju Kumar @ Raju Sahu, along with associates used to provide shelter to absconding accused Ravinder Ganjhu, at various Brick kiln located at forest area of district Lohardaga and Latehar. Further, Raju Kumar @ Raju Sahu with the help of brick kiln munshi/staff namely, Sajan Kumar Bhuiyan, the present appellant, provided shelter, food and other logistic support to the absconding accused Ravinder Ganjhu, Regional committee member of CPI (Moist).
Further, on search lots of documents, i.e., pocket diary note book, letter pad, moist books were seized. Details about the collection of levy/extortion money is also mentioned in a diary and diary also mentions about the details of arms and ammunitions and incriminating materials and digital devices were also seized. One country made pistol, one magazine and 06 live rounds were seized from the room of appellant/accused Sajan Kumar Bhuiyan at brick kiln at Sarnatoli, Lohardaga.
Thereafter, the present appellant, Sajan Kumar Bhuiyan on examination and due to his suspected role, was arrested on 09.04.2023.
35. During the course of investigation, it has been revealed that the present appellant/accused used to work as a brick kiln munshi of Raju Kumar g Raju Sahu (A-27) who is a close associate of CPI Maoist Ravindra Ganjhu (A-20). It has come in investigation that the present appellant has met Ravinder Ganjhu(A-20), along with Raju Kumar (A-29), in the Bulbul Forest area of Lohardaga District. During visit, appellant Saw the 20-25 people wearing black uniforms and carrying big weapons/rifles.
36. It has further revealed that CPI Maoist Ravindra Ganjhu (A-20) used to visit Raju Kumar's brick kiln with his armed squad and as per the 15 direction of Raju Kumar (A-29), appellant/accused Sajan Kumar Bhuiyan (A-17) delivered some necessary goods to the said Ravindra Ganjhu (A-
20) on several occasion.
37. Further, it has surfaced that appellant/accused Sajan Kumar Bhuiyan (A-
17) had met some of the CPI Maoists namely Govind Birjia (A-16), Balak Ganjhu (A-10) Muneshwar Ganjhu(A- 15), Jatru Kherwar (A-14) and others. He (A-17) and in January 2022, Raju Kumar (A-29) took the appellant along with him to the Bulbul Forest area where an armed squad member of Maoist Ravindra Ganjhu (A-20) was already present. During that occasion, Raju Kumar (A-29) handed over a can and wire to Maoist Ravindra Ganjhu (A-20), which Raju Kumar (A-29) had purchased and which was to be later used for assembling explosives.
38. In course of investigation, it has been revealed that, on 08.04.2023, has appellant/accused Sajan Bhuiyan (A-17) was at SarnaTolil, Ita Bhatta (brick kiln) and on that particular day, Ravindra Ganjhu (A-20) arrived at that place and spent night there. On the next day (09.04.2023), the place was searched by NIA but before the raid, the Maoists Ravindra Ganjhu (A-20), and Raju Kumar (A-29), fled from that place. The place was searched and appellant/accused Sajan Kumar Bhuiyan (A-17) was interrogated by the NIA officer. During the search, one pistol and six bullets were recovered from his room and subsequently he (A-17) was arrested.
39. From perusal of record, it is evident that offences established against appellant/accused Sajan Kumar Bhuiya (A-17) in the charge sheet has been mentioned in paragraph 17.13.1 which reads as under:
"17.13.1 Role and offences established against accused Sajan Kumar Bhuiyan (A-17):-
As per the investigation done so far, it established that the accused Sajan Kumar Bhuiyan (A-17) along with accused Raju Sahu, went to Bulbul Forest area voluntarily and provided wire and other IED making materials to one of the main accused Ravinder Ganjhu, who is the Regional Committee Member of CPI (Maoist), a proscribed terrorist organization.
After the commission of the instant crime, as per direction of accused Raju Sahu (A-29), he provided safe shelter to absconding accused Ravinder Ganjhu (A-20) at brick Kiln of Raju Kumar @ Raju Sahu (A-29).
Sajan Kumar Bhuiyan (A-17) along with Raju Kumar Raju Sahu (A-
29) also possessed arms, ammunition with an intention to provide support to Ravinder Ganjhu (A-20)."16
40. Therefore, as per aforesaid paragraph prima facie it appears that present appellant A-17 conspired with co- accused A-29, with an intention to provide support to the armed cadres of CPI (Maoist) a proscribed terrorist organization/prime accused of the instant case who were involved in wagging war against Government of India.
41. Further A-17 with co-accused A-29 voluntarily harboured/concealed Ravinder Ganjhu(A-20) and other armed cadres of CPI(Maoist) knowing that they are members of a banned terrorist organization. As such prima- facie it appears that accusation against present appellant is not untrue.
42. The facts disclosed in the charge-sheets were duly corroborated during course of investigation by way of statement of witnesses and thereby, prima facie the allegation as made against the accused/ petitioner appears to be true.
43. Thus, from perusal of the various annexures and paragraphs of the charge sheet, prima facie appears that the appellant has associated himself with terrorist organization CPI (Moist) knowingly and aided the said organization voluntarily and further he has provided logistics support to terrorist organization CPI (Moist).
44. Thus, it is evident that the appellant connected with CPI Mandet and actively aiding to the banned organization. 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.
45. 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).
46. It has been contended by taking aid of the aforesaid judgment that 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.
47. While, on the other hand, learned counsel appearing for the Respondent- N.I.A. has seriously disputed the aforesaid fact apart from the merit that against the present appellant, it has come in the charge-sheet about the his 17 involvement is direct in commission of offence having closed associates of people of the CPI (Maoist).
48. 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, respondent/accused whose bail was allowed by the High Court and against the order granting bail, the Union of India had preferred the appeal, in the said case the nature of offence was different.
49. In the case of Union of India Vs. K.A. Najeeb (supra), the factual aspect as would be evident from going through the said judgment that the trial of the appellant - K.A. Najeeb was split up with the other accused persons. The other accused persons have been convicted and imposed with the sentence of eight years. Subsequently, when K.A. Najeeb was apprehended then 276 witnesses were to be examined and in the meanwhile he had already completed five years of custody.
The Hon'ble Apex Court by taking the aforesaid factual aspect came to the conclusion that since 276 witnesses are to be examined then it will take substantial time. The Hon'ble Apex Court had also sought for opinion from the NIA for reducing the number of witnesses but the NIA has expressed its inability then in that circumstances, the Hon'ble Apex Court by taking into consideration the Article 21 of the Constitution of India and more time will be taken in examining the 276 witnesses and since the appellant, K.A. Najeeb, had already completed more than five years of custody while the other accused persons had been convicted for eight years, hence, the prayer for bail was allowed.
50. But here in the instant case, the appellant is having close association by giving direct aid to the Naxal outfit. Further, on instruction, it has been submitted by the learned counsel appearing for the Respondent-N.I.A that the trial will be concluded without any unnecessary delay.
51. Further, it has come on record that the release of appellant on bail would adversely affect the trial. He may influence the independent witnesses and 18 may 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.
52. This Court, after considering the aforesaid fact as referred hereinabove and based upon the investigation made against the appellant, wherefrom, it is evident that he is the active nexus with the Naxal outfit, having given aid to Maoist people in their activities, therefore, is of the view that the case of the appellant is not fit to be considered for his release from judicial custody.
53. Further, in the instant case the appellant is the active member of the banned organization and he has got direct involvement in the activities of the banned organization as per the discussion made hereinabove.
Summation:
54. This Court, considering the aforesaid distinguishing facts 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, 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.
55. 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 appellant is prima facie untrue.
56. In view of the foregoing discussions, we find no illegality in the impugned order dated 13.02.2023 passed in Misc. Cr. Application No.2186 of 2023 by AJC-XVI-cum-Spl. Judge, NIA, Ranchi, rejecting the bail application of the appellant and as such, the order impugned requires no interference by this Court.
57. In the result, we find no merit in instant appeal, hence, the same is accordingly, dismissed.
58. Pending Interlocutory Application(s), if any, also stands dismissed.
1959. It is made clear that any observation made herein will not prejudice the case of the appellant in course of trial and view as expressed by this Court is only limited to the instant appeal.
(Sujit Narayan Prasad, J.) (Sanjay Prasad, J.) Saurabh/-
A.F.R.