Jharkhand High Court
Jitendra Kumar vs The Union Of India Through National ... on 8 May, 2023
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
Cr. Appeal (D.B.) No. 514 of 2020
[Against the order dated 03.07.2020 passed the learned Judicial
Commissioner-cum-Special Judge, NIA at Ranchi in Misc. Cr. Application
No. 841 of 2019, corresponding to Special (N.I.A.) Case No. 02/2018 (RC-
02/2018/NIA/DLI)]
...........
Jitendra Kumar, S/o Laxman Ram, R/o Flat No. 105A, Shakuntala Kunj Apartment, Prem Nagar, Road No. 4, Singhmore, P.O. Hatia, P.S. Jagannathpur, District Ranchi, Jharkhand.
... ... Appellant Versus The Union of India through National Investigation Agency ... ... Respondent ...........
For the Appellant : Mr. Balaji Srinivasan, Advocate For the Respondent-NIA : Mr. A.K. Das, Advocate PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ...........
C.A.V. ORDER Heard Mr. Balaji Srinivasan, learned counsel for the appellant and Mr. A.K. Das, learned counsel appearing for the respondent-NIA.
2. This appeal is directed against the order dated 03.07.2020 passed by the learned Judicial Commissioner-cum- Special Judge, NIA at Ranchi in Misc. Cr. Application No. 841 of 2019, corresponding to Special (N.I.A.) Case No. 02/2018 (RC- 02/2018/NIA/DLI), whereby and whereunder, the prayer for bail of the appellant has been rejected.
3. The prosecution case arises out of a written report of Bindeshwari Das, Officer-in-Charge of Bero P.S. to the effect that a secret information was received on 10.11.2016 that the supremo of PLFI for the purpose of depositing his ill-gotten money of proceeds of crime realized as extortion had sent it through his associates for depositing in the Bank account for converting into white through a Safari vehicle bearing registration no. JH01Y-2898 to SBI, Bero Branch. After making a station diary entry and on the basis of the directives of the superior authorities the informant along with other Police personnel went to SBI, Bero Branch for verification of the said information. It is alleged that at about 3:15
-2- Cr. Appeal (D.B.) No. 514 of 2020 P.M. the informant and his associates waited in ambush and in the meantime having seen the Police party 3-4 persons attempted to flee away and while one of the persons was apprehended from the campus of the Bank three other persons were apprehended while boarding on the Safari vehicle bearing registration no. JH01Y- 2898. On query the apprehended accused persons disclosed their name as Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto and Mohan Kumar. A search was conducted in presence of independent witnesses and one bag having 16 bundles of currency note of Rs. 1,000/- total amounting to Rs. 16,00,000/- was recovered from the possession of Binod Kumar and a mobile phone was also recovered from him. It has been alleged that an amount of Rs. 38,000/- was recovered from the possession of co-accused Chandra Shekhar Kumar along with deposit slips of various dates and one deposit slip of Rs. 16,00,000/- along with two mobile phones. It has also been alleged that total currency of Rs. 9,00,000/- was recovered from the possession of co-accused Nand Kishore Mahto and two mobile phones were recovered from Mohan Kumar @ Rajesh Kumar. None of the apprehended accused persons could show any documents with respect to the recovered currency notes and co-accused Binod Kumar had confessed that PLFI Supremo Dinesh Gope had instructed him over mobile to deposit the extorted amount of Rs. 25,38,000/- in the name of the Petrol Pump of co-accused Chandra Shekhar Kumar. All the articles were seized in presence of independent witnesses and a seizure list was also prepared.
Based on the aforesaid allegations Bero P.S. Case No. 67/2016 was instituted for the offences punishable u/s 212, 213, 414, 34 of the I.P.C., Section 13, 17, 40 of the UA(P) Act, 1967 and Section 17(ii) of the CLA Act. On completion of investigation charge-sheet was submitted against Vinod Kumar @ Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto and Mohan Kumar @ Rajesh Kumar for the offences punishable u/s 212, 213, 414
-3- Cr. Appeal (D.B.) No. 514 of 2020 and 34 of the I.P.C., Section 13, 17 and 40 of the UA(P) Act, 1967 and Section 17(ii) of the CLA Act.
Consequent to the order of the Government of India, Ministry of Home Affairs vide Order No. 11011/51/2017-IS, IV dated 16.01.2018, the National Investigation Agency had taken over the investigation of the case and consequently the First Information Report was re-registered as RC-02/2018/NIA/DLI. In course of investigation a supplementary charge-sheet was submitted by the NIA against several accused persons including the appellant.
4. It has been averred in this application that the appellant on completion of his education had joined Rinkiohen Marketing Limited, Hongkong which was established by his mentor Dr. Arasu Ramana. Dr. Arasu Ramana had entered into a collaboration agreement dated 27.08.2017 with Shiv Adi Shakti Minerals Pvt. Ltd. through its Managing Director, Sumant Kumar for developing a 50 MW Solar Park facility under the scheme announced by the Government of India and as per the collaboration agreement the first party i.e. Rinkiohen Marketing Pvt. Ltd., Hongkong was responsible to fund the project and it was the responsibility of Shiv Adi Shakti Minerals Pvt. Ltd. to arrange the land for the said project. The Department of Industries, Government of India vide letter dated 19.03.2018 issued a letter of intent to establish renewable energy/solar energy plus manufacturing of solar panel plant in Tamar, Ranchi in favour of Rinkiohen Marketing Pvt. Ltd, Hongkong. It has been stated that Rinkiohen Marketing Pvt. Ltd. was incorporated in India and the appellant become the Director of the said company. Since there was some legal problems with Shiv Adi Shakti Minerals Pvt. Ltd. Rinkiohen Marketing Pvt. Ltd. entered into an agreement on 19.06.2018 with Bhavya Engicon Pvt. Ltd. through its Managing Director superseding all agreements with Shiv Adi Shakti Minerals Pvt. Ltd. It has further been stated that Rinkiohen Marketing
-4- Cr. Appeal (D.B.) No. 514 of 2020 Limited, had transferred Rs. 42,90,000/- between 16.10.2018 to 02.02.2019 through RTGS for acquisition of land for the said purpose. On 12.03.2019 Rinkiohen Marketing Pvt. Ltd. had terminated the agreement with Bhavya Engicon Pvt. Ltd and requested the company for return of the money.
5. It has been submitted by Mr. Balaji Srinivasan, learned counsel for the appellant that the appellant had no clue as to the illegal operations of Shiv Adi Shakti Minerals Pvt. Ltd. and Bhavya Engicon Pvt. Ltd which were headed by Sumant Kumar. It has been submitted that the appellant was aware only of the fact that the said two companies were assisting Rinkiohen Marketing Pvt. Ltd., for establishing a Solar Park. The appellant being the Director of Rinkiohen Marketing Limited, was interested only in setting up the Solar Park facility and he had acquaintance with Sumant Kumar only for the purpose of acquisition of land and no other purpose. Learned counsel submits that there is no evidence against the appellant in the entire case record and the NIA has also failed to prove that the appellant was involved in conspiracy with the active connivance of the other accused persons. It has been submitted that P.W.17 Praveen Kumar was an employee of Rinkiohen Marketing Limited who had validated the commercial transaction. Learned counsel submits that several other witnesses have been examined but none of them have been able to pinpoint as to in what manner the appellant has been involved in committing any offence. Learned counsel has also referred to the supplementary charge sheet submitted by the NIA while stressing on the fact that merely on the basis of surmises and conjectures the appellant has been implicated in the present case. It has further been submitted that the materials purportedly collected against the appellant does not make out a prima facie case u/s 43- D(5) of the UA(P) Act. Mr. Balaji Srinivasan has further stated that the appellant is in custody since 28.06.2019 and there being no chance of the trial being concluded in the near future the
-5- Cr. Appeal (D.B.) No. 514 of 2020 impugned order dated 03.07.2020 be set aside and the appellant be directed to be released on bail.
6. Mr. A.K. Das, learned counsel appearing for the respondent-NIA has submitted that the appellant was a part of the module which was responsible for channelizing illegitimate money through legitimate means with an intent to aid/assist in the smooth management and strengthening of PLFI and to assist the self-styled Supremo of PLFI. It has been submitted that the accused persons including the appellant were well aware of the fact that the collected funds were from illegitimate sources being the proceeds of crime which were used for procurement of explosives, arms and ammunitions for committing disruptive activities so as to threaten the security and sovereignty of the nation. Mr. Das has further submitted that the disclosure statement of the co-accused persons namely Sumant Kumar, Nandlal Swarnkar, Chandra Shekhar Singh and Navinbhai Patel and the CDR analysis of their mobile phones have established that the appellant was in regular contact with Sumant Kumar and other PLFI associates and were deeply involved in the larger conspiracy in channelizing accumulated levy amount and infusing the same in the dubious shell company M/s. Bhavya Engicon Pvt. Ltd. It has further been submitted that there were 91 mobile phone calls between the appellant and Chandra Shekher Singh, 1385 calls with Sumant Kumar, 32 calls with Navinbhai Patel and 554 calls with Nandlal Swarnkar during the period 01.04.2018 to 02.05.2019. Moreover the statement of the witnesses u/s 164 Cr.P.C., apart from the disclosure statement of the accused persons clearly reveals about the involvement of the appellant in sourcing illegitimate money to make it legitimate and thereby strengthening the terrorist organization. It has been submitted that the appellant being the Director of Rinkiohen Marketing Pvt. Ltd. had entered into a collaboration agreement with M/s. Shiv Adi Shakti Minerals Pvt. Ltd. on 27.08.2017 which was jointly owned by Sumant Kumar
-6- Cr. Appeal (D.B.) No. 514 of 2020 and the wife of Dinesh Gope and he had failed to verify that the name of the said company was struck off in the year 2015 by the Ministry of Corporate Affairs due to non-filling of accounts to Registrar of Companies. M/s. Bhavya Engicon Pvt. Ltd was also a dubious company jointly owned by Sumant Kumar and the wife of Dinesh Gope wherein Rs. 42,90,000/- was transferred through RTGS though the agreement was terminated later on. According, to Mr. Das it is clear that the appellant had taken a loan of Rs. 48,00,000/- from Janardhan Soni who is the owner of Om Sai Enterprises and Sumant Kumar had transferred Rs. 5,00,000/- through RTGS from the account of M/s. Bhavya Engicon Pvt. Ltd. and Rs. 15,00,000/- in cash to Janardhan Soni which would further enhance the culpability of the appellant.
7. In reply, Mr. Balaji Srinivasan, learned counsel for the appellant has submitted that the allegation of the appellant channelizing extorted money is frivolous. According to him, there is nothing on record to prima facie prove that the amount transferred by M/s. Rinkiohen Marketing Pvt. Ltd. to M/s. Bhavya Engicon Pvt. Ltd. was an amount obtained by extortion. He has submitted that M/s. Rinkiohen Marketing Limited India had obtained a letter of intent from the Jharkhand Government to establish Solar Park and at the time of its agreement with M/s. Bhavya Engicon Pvt. Ltd the appellant was not aware about the illegal activities of the said company. Mr. Balaji Srinivasan, has further submitted that Rs. 42,00,000/- which was transferred for acquisition of land for the purpose of setting up of a Solar Park was in good faith without any ulterior motive being attached to the same. He has submitted that there is no prima facie case that the appellant had mobilized the extorted money through Hawala operators. It has also been submitted that nothing was recovered from the conscious possession of the appellant. Mr. Balaji Srinivasan, has referred to the case of "Union of India versus K.A. Najeeb", reported in (2021) 3 SCC 713, "Ashim @ Asim Kumar
-7- Cr. Appeal (D.B.) No. 514 of 2020 Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya versus National Investigation Agency", reported in (2022) 1 SCC 695, "Manoj Kumar @ Manoj Yadav @ Manoj Kumar Yadav versus Union of India" in SLP (Crl.) No. 9829/2021 and "Angela Harish Sontakke versus State of Maharashtra" in SLP (Crl.) No. 6888/2015.
8. We have gone through the submissions advanced by the learned counsel for the parties and have also perused the various affidavits including the supplementary affidavit filed on behalf of the appellant.
9. In the supplementary charge-sheet the appellant has been arrayed as A-11. The role of the appellant has been depicted at para 17.21 of the supplementary charge-sheet which reads as follows:
"17.21) Role of A-11:- It is established that the A- 11 was well acquainted with the facts that Dinesh Gope (A-6) was a terrorist and Self styled chief of PLFI (People's Liberation Front of India) and used to collect/raised funds through extortion of levy and Sumant Kumar (A-7) was close associate of A-6, who used to collect/raise funds at the behest of Dinesh Gope (A-6) and further channelized the funds into legitimate means. As part of conspiracy of PLFI, A- 11, with the association of A-7, A-8, A-9 and A-12 hatched the criminal conspiracy and held meetings with the political leaders in the name of alleged surrender of Dinesh Gope (A-6). At the behest of PLFI leader Sumant Kumar (A-7), the A-11, with the association of A-8, A-9 & A-12 knowingly held the amount which was derived or obtained by the operatives of PLFI and Dinesh Gope (A-6) from commission of any terrorist act (levy, extortion) or was acquired through the terrorist fund and further channelized the extorted money into legitimate means. A-11 had also talked to the Hawala operators at Ranchi and Panipat using his mobile numbers and arranged the transportation/channel for getting the extorted money delivered at Delhi to execute the PLFI plan. He, being the director and
-8- Cr. Appeal (D.B.) No. 514 of 2020 India head of Rinkiohen Marketing Pvt. Ltd., a multinational company transferred / deposited approx. Rs. 37 (Thirty-Seven) lakhs in the account of Bhavya Engicon PVT. Ltd., a dubious and fictitious shell company, formed by A-7 with the partnership of Shakuntala Kumari, alleged wife of Dinesh Gope (A-6) without any legitimate/justifiable reasons dealt with the said company."
10. The modus operandi of the accused persons in channelizing the extorted money has been described at para 17.10 of the supplementary charge-sheet and the relevant reads as follows:
.... Scrutiny/analysis of the bank account details of the dubious firm's/bank details of the individuals, investigation has further established the modus operandi of the accused and how they were channelizing the extorted money through legitimate means and were strengthening PLFI. Accordingly, A- 7 & A-10 close associates of absconding accused Dinesh Gope used to receive/collect the extorted money from operatives of PLFI and further deposited/sent in the accounts of/to Shakuntala Kumari & Hira Devi, alleged wives of Dinesh Gope and knowingly held the amount which was derived or obtained by the operatives of PLFI and Dinesh Gope, PLFI Chief, from the commission of terrorist act (levy, extortion) or acquired through the terrorist fund and further channelized the extorted money into legitimate means. Investigation further established that Accused A-10 used to collect amount less than Rs. 50,000/- (Fifty thousand rupees) from A-7, who was Director and partner in the dubious shell companies, formed as per direction of A-6 with Shakuntala Kumari, alleged wife of Dinesh Gope (A-
6) and used to deposit the collected money in the account of Palak Enterprises and the amount between Rs. 50,000/- (Fifty Thousand rupees) to Rs. 1,00,000/- (One Lakh rupees) used to be collected by A-10 from Sumant Kumar (A-7) and the collected amount was taken by A-10 as courier to Kolkata where the collected amount was handed over to Shakuntala Kumari. The same modus operandi was
-9- Cr. Appeal (D.B.) No. 514 of 2020 being adopted by Sumant Kumar (A-7). He directly used to receive extorted money in cash from Dinesh Gope and sometimes from the operatives of PLFI and further deposited/transferred the amount in the accounts of Shakuntala Kumari, Hira Devi, alleged wives of Dinesh Gope and in the shell companies so formed for the purpose. Sumant Kumar (A-7) was also converting/legalizing the levy amount by investing funds at the behest of Jitender Kumar (A-
11) and in the accounts of Navinbhai Jayantibhai Patel (A-12).
11. What would appear from the above is that the appellant who was the Director of Rinkiohen Marketing Pvt. Ltd. in association with the other accused persons had made arrangements for channelizing the extorted money of approximately Rs. 30,00,000/- and depositing it in the account of shell companies namely, M/s. Bhavya Engicon Pvt. Ltd which was formed with the partnership of the wife of PLFI supremo Dinesh Gope.
12. Mr. Balaji Srinivasan, learned counsel for the appellant has relied upon the case of "Union of India versus K.A. Najeeb", reported in (2021) 3 SCC 713, wherein it has been held as follows:
"18. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected.
19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike the NDPS Act
-10- Cr. Appeal (D.B.) No. 514 of 2020 where the competent court needs to be satisfied that prima facie the accused is not guilty and that he is unlikely to commit another offence while on bail; there is no such precondition under UAPA. Instead, Section 43-D(5) of the UAPA merely provides another possible ground for the competent court to refuse bail, in addition to the well-settled considerations like gravity of the offence, possibility of tampering with evidence, influencing the witnesses or chance of the accused evading the trial by absconsion, etc. Conclusion
20. In light of the above discussion, we are not inclined to interfere with the impugned order. However, we feel that besides the conditions to be imposed by the trial court while releasing the respondent, it would serve the best interest of justice and the society at large to impose some additional conditions that the respondent shall mark his presence every week on Monday at 10 a.m. at the local police station and inform in writing that he is not involved in any other new crime. The respondent shall also refrain from participating in any activity which might enrage communal sentiments. In case the respondent is found to have violated any of his bail conditions or attempted to have tampered the evidence, influence witnesses, or hamper the trial in any other way, then the Special Court shall be at liberty to cancel his bail forthwith. The appeal is accordingly dismissed subject to the abovestated directions."
13. The judgment of "Union of India versus K.A. Najeeb", supra has been followed in the case of "Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya versus National Investigation Agency", reported in (2022) 1 SCC 695, wherein it has been held as follows:
"9. We have to balance the nature of crime in reference to which the appellant is facing a trial. At the same time, the period of incarceration which has been suffered and the likely period within which the trial can be expected to be completed, as is informed to this Court that the statement of PW 1/de facto complainant has still not been completed and there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter-affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial. This fact certainly cannot be
-11- Cr. Appeal (D.B.) No. 514 of 2020 ignored that the appellant is in custody since 6-7- 2012 and has completed nine-and-half years of incarceration as an undertrial prisoner.
10. This Court has consistently observed in its numerous judgments that the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge him on bail.
11. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice."
14. The appellant has remained in custody since 28.06.2019 and is on the verge of completing four years in custody. The appellant does not have any criminal antecedent. It appears that several witnesses are still left to be examined. Though this Court is aware that in the case of one of the co-accused namely, Navinbhai Jayantibhai Patel, the prayer for bail of the appellant was rejected by this Court in Cr. Appeal (D.B.) No. 556 of 2020 but it also appears that his prayer for bail was rejected at that stage with a direction to the learned trial court to conclude the trial expeditiously and preferable within a period of one year. The said order was passed on 06.05.2022 and the trial has till date not been completed in spite of the said direction. Moreover, the case of the appellant seems to be on a different footing than that of the case of Navinbhai Jayantibhai Patel as in his disclosure statement he had categorically stated about the manner in which he had made arrangements for surrender of PLFI supremo Dinesh Gope and he had received a huge amount from various sources along with Nandlal Swarnkar and Sumant Kumar. As noted in the case of
-12- Cr. Appeal (D.B.) No. 514 of 2020 "Union of India versus K.A. Najeeb", (supra) the period spent in the custody and the unlikelihood of the trial being completed any time soon was one of the primary considerations for grant of bail to the said accused.
15. As has been stated above the appellant has spent almost four years in custody and the trial has till date not been completed. Therefore, on consideration of the period of incarceration of the appellant, we are inclined to allow this appeal.
16. Accordingly, the impugned order dated 03.07.2020 passed the learned Judicial Commissioner-cum-Special Judge, NIA at Ranchi in Misc. Cr. Application No. 841 of 2019, corresponding to Special (N.I.A.) Case No. 02/2018 (RC-02/2018/NIA/DLI) is hereby set aside and, the appellant is directed to be released on bail on furnishing bail bond of Rs. 10,000/- (Rupees Ten Thousand) only with two sureties of the like amount each, to the satisfaction of learned Judicial Commissioner-cum-Special Judge, NIA at Ranchi in Special (N.I.A.) Case No. 02/2018 (RC- 02/2018/NIA/DLI), arising out of Bero P.S. Case No. 67 of 2019, with a further condition that the appellant shall remain physically present before the learned trial court on each and every date till the conclusion of the trial.
17. This appeal stands allowed.
(Rongon Mukhopadhyay, J.) (Ambuj Nath, J.) High Court of Jharkhand at Ranchi Dated, the 8th day of May, 2023.
Alok/NAFR