Andhra HC (Pre-Telangana)
National Investigation Agency Chikoti ... vs Mohmed Anwar Shak And Another on 21 December, 2012
Equivalent citations: AIRONLINE 2012 AP 78
Bench: N.V. Ramana, P. Durga Prasad
THE HON'BLE SRI JUSTICE N.V. RAMANA AND THE HON'BLE SRI JUSTICE P. DURGA PRASAD
CRIMINAL APPEAL No. 824 of 2012
21-12-2012.
National Investigation Agency Chikoti Garden, Begumpet, Hyderabad, Rep. by
I.R.S. Murthy, Addl. Superintendent of Police, NIA,Hyderabad.
Mohmed Anwar Shak and another.
For the petitioner: Mr. P. Vishnu Vardhan Reddy
For the Respondents: Mr. Mohd. Muzafer Ullah Khan
<Gist:
>Head Note:
? CITATIONS:
1. (2003) 8 SCC 50
2. 2009 (3) GLT 855
3. (2010) 4 GLT 1
4. Criminal Appeal No.29 of 2011 dt. 27.07.2011
5. Crl.A.No.2225 of 2010 dt. 23.10.2010
Judgment: (Per Justice Sri. N.V. Ramana)
This criminal appeal by the National Investigation Agency (NIA), is
directed against the order dated 13.07.2012, passed by the
IV Additional Metropolitan Sessions Judge, Hyderabad, in M.P.
No. 353 of 2012 in Crime No.1/2012 of NIA, granting bail to the respondents-
accused Nos. 3 and 4.
The facts of the case in brief are on credible information that one Morjen
Hossain of Mohabatpur village, Kaliachak PS limits, Malda District, West Bengal,
and others were smuggling counterfeit Indian currency notes of Rs.500/- and
Rs.1,000/- denominations from Pakistan through India-Bangladesh borders and
circulating them across India, the National Investigation Agency, lawfully
intercepted the mobile phone numbers of the said persons with due permission
from the Ministry of Home Affairs, Government of India, by. The intercepted
telephonic conversations of the said persons which was recorded revealed that
Morjen Hossain, Rakib Sheik, who worked at Patancheru in Medak District of
Andhra Pradesh, along with others formed a group and indulged in smuggling and
circulation of fake Indian currency notes of denominations of Rs.500/- and
Rs.1,000/- in India as part of larger conspiracy to destabilize the monetary
system in India. The said persons were raising funds for terrorist activities
by way of earning genuine currency notes against the counterfeit currency notes
circulated by them. Thereafter, the Government of India, Ministry of Home
Affairs (Internal Security-I Division), IS-IV Desk, had given directions to the
National Investigation Agency to register the case and to investigate the same
vide Order No.11034/36/2011-IS-IV, dated 28.12.2011. Pursuant thereto, the Head
Quarters of National Investigation Agency at New Delhi had given directions to
their Hyderabad Branch to register the case. Based on that, a case was
registered as Crime No.1/2012/NIA/HYD, dated 03.01.2012 against Morgen Hossain
as accused No.1 and Rakib Shaik as accused No.2. They were arrested on
06.01.2012. During the course of investigation, he revealed the names of other
accused, including the respondents-accused herein, and they were arrested and
remanded to judicial custody. The National Investigation Agency after
completion of investigation filed the charge sheet. While so, the respondents-
accused filed application in M.P. No. 353 of 2012 for their release on bail, and
the IV Additional Metropolitan Sessions Judge, Hyderabad, by an order dated
13.07.2012, granted bail to the respondents-accused No.3 and 4. The legality
of the said order granting bail to the respondents-accused Nos. 3 and 4 is
questioned in this criminal appeal.
The learned Assistant Solicitor General appearing for the appellant-NIA
submitted that the respondents-accused in association with other accused, are
indulging in circulation of fake Indian currency notes across the Indian
territory, that are printed in Pakistan. The activities of the respondents-
accused are not in their individual capacity, but are part of an organized
network, conspired to destabilize the Indian economy and threaten the internal
security of the country by raising funds for terrorist activities through such
circulation of fake Indian currency notes. He further submitted that the
activities of the respondents-accused fall within the ambit of "terrorist act"
as described in Section 15 of the Unlawful Activities (Prevention) Act, 1967,
and as such, they are liable for punishment under Sections 16 and 18 thereof.
He further submitted that the legally intercepted phone calls of the
respondents-accused Nos. 3 and 4 with the other accused, shows their involvement
in the circulation of fake Indian currency notes. Therefore, they are liable
for punishment for the offences punishable under Sections 489-B, 489-C and 120-B
I.P.C. He further submitted that the Court below in granting bail to the
respondents-accused, committed a grave error in equating the respondents-accused
with the other accused, who were released on bail. The respondents-accused
herein are charged for offences punishable under Sections 489-B and 489-C read
with Section 120-B I.P.C. and under Sections 16 and 18 of the Unlawful
Activities (Prevention) Act, which are grave and serious in nature and not
bailable, while the other accused who were granted bail were charged for the
offence punishable under Section 489-C I.P.C., which is not a serious offence.
He further submitted that as per Section 43-D of the Unlawful Activities
(Prevention) Act, by application of modified Section 167 Cr.P.C., the judicial
custody of the respondents-accused can be kept upto a period of 180 days. He
further submitted that the respondents-accused though are residents of West
Bengal, their houses are situated on the borders of Bangladesh, and there is
every possibility that they may not turn up for trial, if they are released on
bail. He further submitted that the investigation of the case is still at the
nuptial stage, and as such, the Court below ought not to have granted bail to
the respondents-accused. Hence, he prayed that the bail granted to the
respondents-accused by the Court below be cancelled.
The respondents-accused filed counter. The learned counsel for the respondents-
accused reiterating the stand taken by the respondents-accused in the counter
submitted that the respondents-accused were falsely implicated in the case. No
material is placed by the appellant to show the prima facie involvement of the
respondents-accused in the crime. The legally intercepted calls and the charge
sheet filed against the respondents-accused does not reveal that the crime money
allegedly collected by the respondents-accused through circulation of fake
Indian currency notes is flown to Pakistan. He denied that the presence of the
respondents-accused cannot be secured for trial because they reside on the
borders of Bangladesh in West Bengal. He denied that the investigation of the
case is at the initial stage and submitted that the entire investigation of the
case is over and charge sheet is also filed, and as such, there is no need to
keep the respondents-accused in custody for a period of upto 180 days in view of
the provisions of Section 43-D of the Unlawful Activities (Prevention) Act, by
application of modified Section 167 Cr.P.C. He submitted that since the Court
below, after considering the charge sheet and the material filed by the
appellant, came to the conclusion that no prima facie case is made out against
the respondents-accused to deny bail, and accordingly granted bail to them,
which does not call for interference by this Court in appeal. Thus he prayed
that the criminal appeal be dismissed.
Heard the learned counsel for the appellant-NIA and the learned counsel
for the respondents and perused the material on record.
In the light of the arguments advanced, the questions that arise for
consideration in this criminal appeal are:
(1) Whether this criminal appeal filed by the appellant-NIA under Section 21(4)
of the NIA Act, against the order passed by the Special Court/Additional
Metropolitan Sessions Judge, granting bail to the respondents-accused, lies to a
single Judge or Bench of two Judges of the High Court?
(2) Whether the Special Court/Additional Metropolitan Sessions Judge, in the
facts and circumstances of the case, was justified in granting bail to the
respondents-accused, and whether the appellant-NIA has made out any grounds to
cancel the bail granted to the respondents-accused?
In re question No.1:
Normally an order granting or refusing bail is an interlocutory order and no
appeal would lie against such order. However, as per the provisions of Section
21(4) of the NIA Act, an appeal lies to the High Court against an order of the
Special Court granting or refusing bail. Under the NIA Act, there is a clear
departure in the matter of granting of bail from that of the Code of Criminal
Procedure. The provisions regarding bail are contained in Sections 436 to 439
of the Code of Criminal Procedure. There is no provision for appeal in the Code
of Criminal Procedure. The provisions of the NIA Act are in clear contra-
distinction with that of the Code of Criminal Procedure as NIA Act is a special
enactment.
Now the issue that falls for consideration before us is, as per Section 21(4) of
the NIA Act, appeal lies to the High Court, in the case of granting or refusal
of bail. There is lot of ambiguity on this issue, whether appeal lies to a
single Judge of the High Court or a Division Bench of the High Court, and we
were informed that against the orders of the Special Court granting or refusing
bail, in some cases, criminal petitions are filed before a single Judge and in
some cases, criminal appeals are filed before a Division Bench of this Court,
and the Registry is numbering them. In view of this confusion, we are of the
view that there should be an authoritative pronouncement on this aspect. Before
we deal with this issue, it would be appropriate to refer to the provisions of
Section 21 of the NIA Act, which reads as follows:
Appeals: - (1) Notwithstanding anything contained in the Code, an appeal shall
lie from any judgment, sentence or order, not being an interlocutory order, of a
Special Court to the High Court both on facts and on law.
(2) Every appeal under sub-section (1) shall be heard by a bench of two
Judges of the High Court and shall, as far as possible, be disposed of within a
period of three months from the date of admission of the appeal.
(3) Except as aforesaid, no appeal or revision shall lie to any court from
any judgment, sentence or order including an interlocutory order of a Special
Court.
(4) Notwithstanding anything contained in sub-section (3) of Section 378
of the Code, an appeal shall lie to the High Court against an order of the
Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a period of
thirty days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of
the said period of thirty days if it is satisfied that the appellant had
sufficient cause for not preferring the appeal within the period of thirty days:
Provided further that no appeal shall be entertained after the expiry of
ninety days.
From a reading of the above provision, it becomes evident that under sub-
section (1) of Section 21, notwithstanding anything contained in the Code of
Criminal Procedure, an appeal shall lie from any judgment, sentence or order,
not being an interlocutory order, of a Special Court to the High Court, both on
facts and on law. Under sub-section (2), every appeal under sub-section (1)
shall be heard by a Bench of two Judges of the High Court. Sub-section (3)
provides that except as provided in sub-sections (1) and (2), no appeal or
revision shall lie to any court from any judgment, sentence or order, including
an interlocutory order of a Special Court. However, sub-section (4) provides
that notwithstanding anything contained in sub-section (3) of Section 378 of the
Code, an appeal shall lie to the High Court against an order of the Special
Court granting or refusing bail.
In Shaikh State of Gujarat v. Salimbhai Abdulgaffar1, on which the counsel for
the appellant placed reliance, the Apex Court, considered the self-same
question, as is involved in this appeal, in the light of the provisions of
Section 34 of the Prevention of Terrorism Act (POTA).
The facts in the said case before the Apex Court were - a FIR was lodged, basing
on which, a case in Crime No. I-09 of 2002 for the offences under Sections 143,
147, 148, 149, 337, 338, 435, 120-B, 34, 153-A, 302 and 307 IPC; Sections 141,
151 and 152 of the Indian Railways Act; Sections 3 and 4 of the Prevention of
Damage to Public Property Act and Section 135(1) of the Bombay Police Act, were
registered against the respondent and others. The police filed charge sheet
against the accused before the Additional Sessions Judge, Panchmahals at Godhra,
inter alia stating that the investigation is still continuing. As the
investigation was still going on, the bail applications moved by the accused
were rejected by the Additional Sessions Judge. Questioning the said rejection
orders, the accused filed bail applications under Sections 439 Cr.P.C. before
the High Court. While the matter stood thus, as the investigation revealed that
the accused also committed offences punishable under Sections 3 and 4 of the
Prevention of Terrorism Act (POTA), the police filed applications before the
Additional Sessions Judge, for adding Sections 3 and 4 of POTA to the main
charge sheet. The accused, who were in judicial custody, were also informed
about the same. In the counter filed to the bail applications, it was contended
by the State of Gujarat that in view of addition of Sections 3 and 4 of POTA to
the main charge sheet, and having regard to the provisions of POTA, the accused
have to first approach the Special Court for grant of bail, and they can
approach the High Court only after a decision by the Special Court. However, a
learned Judge of the Gujarat High Court, allowed the bail applications moved by
the accused under Section 439 Cr.P.C. and directed the State to release them on
bail. The State carried the matter in appeal to the Supreme Court.
Before the Supreme Court, it was argued on behalf of the State that the accused
having not applied for bail under Sections 3 and 4 of POTA, it was not open to
the learned Judge of the High Court to entertain their bail applications and
grant bail, and having regard to the provisions of Section 34(2) of POTA, only a
Bench of two Judges of the High Court, could grant bail in respect of an offence
under POTA, and since the learned single Judge has granted bail in exercise of
the power under Section 439 read with Section 482 Cr.P.C, the order granting
bail is illegal and without jurisdiction.
To consider the above argument, the Apex Court referred to the provisions of
Section 34 of POTA, which is pari materia, with Section 21 of the NIA Act, read
as follows:
Appeals: - (1) Notwithstanding anything contained in the Code, an appeal shall
lie from any judgment, sentence or order, not being an interlocutory order, of a
Special Court to the High Court both on facts and on law.
(2) Every appeal under sub-section (1) shall be heard by a bench of two
Judges of the High Court.
(3) Except as aforesaid, no appeal or revision shall lie to any court from
any judgment, sentence or order including an interlocutory order of a Special
Court.
(4) Notwithstanding anything contained in sub-section (3) of Section 378
of the Code, an appeal shall lie to the High Court against an order of the
Special Court granting or refusing bail.
(5) Every appeal under this section shall be preferred within a period of
thirty days from the date of the judgment, sentence or order appealed from:
Provided that the High Court may entertain an appeal after the expiry of
the said period of thirty days if it is satisfied that the appellant had
sufficient cause for not preferring the appeal within the period of thirty days:
The Apex Court, interpreted the above Section 34 of POTA Act, which is
pari materia, with Section 21 of the NIA Act, as follows:
Sub-section (1) of Section 34 of POTA lays down that an appeal shall from
any judgment, sentence or order not being an interlocutory order of a Special
Court to the High Court both on facts and law and in view of sub-section (2),
the appeal has to be heard by a Bench of two Judges. Normally, an order
granting or refusing bail is an interlocutory order and no appeal would lie.
However, in view of sub-section (4) of Section 34 an appeal shall lie to the
High Court against such an order. Under the scheme of POTA, there is a clear
departure in the matter of grant of bail from that of the Code of Criminal
Procedure. The provisions regarding bail in the Code of Criminal Procedure are
contained in Sections 436 to 439. Sub-section (1) of Sections 439 confers power
upon the Court of Sessions and the High Court to grant bail to any person
accused of having committed a non-bailable offence. Sub-section (2) of Section
439 deals with cancellation of bail and provides that any person who has been
released on bail under Chapter XXXIII may be arrested and committed to custody.
There is no provision for appeal under the Code of Criminal Procedure against an
order granting bail.
(emphasis supplied)
While rejecting the contention of the respondents-accused that the power
of the High Court to grant bail under Section 439 Cr.P.C. has not been taken
away by POTA, and as such, the learned single Judge had the jurisdiction to
grant bail to the respondents-accused in exercise of the power conferred by the
said provision, the Apex Court held as follows:
The apart, if the argument of the learned counsel for the respondents is
accepted, it would mean that a person whose bail under POTA has been rejected by
the Special Court will have two remedies and he can avail any one of them at his
sweet will. He may move a bail application before the High Court under Section
439 Cr.P.C. in the original or concurrent jurisdiction which may be heard by a
single Judge or may prefer an appeal under sub-section (4) of Section 34 of POTA
which would be heard by a Bench of two Judges. To interpret a statutory
provision in such a manner that a court can exercise both appellate and original
jurisdiction in respect of the same matter will lead to an incongruous
situation. The contention is therefore rejected.
In the present case, the respondents did not choose to apply for bail before the
Special Court for offences under POTA and consequently, there was no order of
refusal of bail for offences under the said Act. The learned single Judge
exercising powers under Section 439 read with Section 482 Cr.P.C. granted them
bail. The order of the High Court is clearly without jurisdiction as under the
scheme of the Act the accused can only file an appeal against an order of
refusal of bail passed by the Special Court before a Division Bench of the High
Court and, therefore, the order under challenge cannot be sustained and has to
be set aside.
(emphasis supplied)
In Redaul Hussain Khan v. State of Assam2, the accused were charged for the
offences punishable under Sections 120(B), 121, 121(A) IPC read with Section
25(1B)(A) of Arms Act and Sections 17, 18 and 19 of the Unlawful Activities
(Prevention) Act and the NIA Act. They were remanded to judicial custody.
However, without approaching the Court of Sessions under Sections 437 Cr.P.C. as
the Special Court was not constituted, they moved bail applications directly to
the High Court under Section 439 Cr.P.C. A learned single Judge of the High
Court, considered the question whether a High Court can invoke the provisions of
Section 439 Code of Criminal Procedure, for the purpose of granting bail to a
person, who is in custody on the allegation of having committed an offence under
the NIA Act, or for cancelling bail already granted to such an accused by a
Special Court, constituted under the NIA Act, or by some other Court of
competent jurisdiction, which is subordinate to the High Court, and having
regard to the provisions of Section 21(4) of the NIA Act and the law laid down
by the Apex Court in Shaikh State of Gujarat v. Salimbhai Abdulgaffar, which
interpreted the provisions of Section 34(4) of POTA, which is pari materia with
Section 21(4) of the NIA Act, dismissed the bail applications moved by the
accused holding thus:
... once the investigation, under the scheme of the NIA Act, is taken over by
the Agency, it is the Special Court or the Court of Session, as the case may be,
which can authorize further detention of an arrested accused. When such an
arrested accused applies for bail to the Special Court or the Court of Session,
as the case may be, the source of power to consider such an application for bail
lies in Section 437 and not Section 439 of the Code. Even a High Court cannot
invoke its powers under Section 439, to grant bail if it has been refused by the
Special Court or the Court of Session, as the case may be, nor can the High
Court, in exercise of its power, under Section 439, cancel bail if bail has been
granted to such an accused by the Special Court or the Court of Session, as the
case may be. If the bail has been refused or granted by the Special Court or
the Court of Session, as the case may be, the aggrieved party may, however,
prefer an appeal, in terms of Section 21, to the High Court. Such an appeal has
to be heard by a Division Bench of the High Court and in such an appeal, the
merit of the order, granting or refusing bail, can be questioned.
(emphasis supplied)
The above view taken by a learned single Judge of the Gauhati High Court was
approvingly quoted by a Division Bench of the Gauhati High Court in Jayanta
Kumar Ghosh v. State of Assam3 and Sri Jibangshu Paul v. National Investigation
Agency (NIA)4.
In Yoonus v. Deputy Superintendent of Police5, a Division Bench of the Kerala
High Court, also having considered the provisions of Section 21 of the NIA Act,
held as follows:
An order rejecting or granting bail is an appealable order u/s 21(4) of
the NIA Act and the appeal from such order lie to the High Court u/s 21(4) of
the NIA Act. Such appeal shall be heard by a Bench of two Judges of the High
Court as stipulated by Section 21(2) of the NIA Act. It is without knowing that
legal position, as against the order rejecting bail applications by the
Magistrate, fresh bail applications were filed before this Court. The Registry
also, without knowing the legal position, numbered the petitions as bail
applications and posted before the single Judge and accordingly it was disposed.
(emphasis supplied)
In view of the judgment of the Apex Court, interpreting Section 34(4) of POTA,
which is pari materia with Section 21(4) of the NIA Act, we hold that the
interpretation placed on Section 34(4) of POTA by the Apex Court, would apply
mutatis mutandis to
Section 21(4) of the NIA Act. Thus, it draws us to an irresistible conclusion
that the present appeal under Section 21(4) of the NIA Act, which is against the
orders passed by the Special Court/Additional Metropolitan Sessions Judge,
granting bail to the respondents-accused would lie to the Division Bench of the
High Court. Accordingly, we answer issue No.2 holding that this appeal under
Section 21(4) of the NIA Act, filed by the appellant-NIA against the order
passed by the Special Court/Additional Metropolitan Sessions Judge, granting
bail to the respondents-accused lies to a Division Bench of the High Court.
In re question No.2:
The second issue that falls for our consideration is whether the Special
Court/Additional Metropolitan Sessions Judge, was justified in granting bail to
the respondents-accused.
Ordinarily, the discretion exercised by the lower Court in granting or refusing
bail would not be interfered with, unless the order suffers from irrelevant
considerations and is not supported by any material on record, then the
appellate Court will interfere with the orders granting or refusing bail.
It is well settled by catena of decisions rendered by the Apex Court that the
power of cancellation of bail is required to be exercised with due care and
circumspection. The High Court under Section 21(4) of the NIA Act, exercises
the power of an appellate Court. An appeal is a proceeding taken to rectify an
erroneous decision of the Court by submitting the question to a higher Court. In
view of the express language used in Section 21(4) of the NIA Act, which
provides that notwithstanding anything contained in sub-section (3) of Section
378 of the Code, an appeal shall lie to the High Court against an order of the
Special Court granting or refusing bail, the appeal would lie both on facts and
on law. Therefore, even an order granting bail can be examined on merits by the
High Court without any kind of fetters imposed on its powers and it can come to
an independent conclusion whether the Special Court/Additional Metropolitan
Sessions Judge, was justified in granting bail to the respondents-accused.
Article 21 of the Constitution guarantees life with dignity. Undoubtedly,
national security is of paramount importance. Without protecting the safety and
security of the nation, individual rights cannot be protected. Both national
interest and individual dignity are core values of the Constitution. It is,
therefore, obligatory on the part of the Court to exercise its judicial
discretion guided by law. But not merely on assumptions and presumptions, much
less on apprehensions, without sufficient material to constitute an offence
charged. It is necessary for the Court dealing with an application for bail to
consider the following circumstances among others before, granting bail.
(1) The nature of accusation and severity of punishment in case of conviction
and the nature of supporting evidence.
(2) Reasonable apprehension of tampering with the witnesses or apprehension of
threat to the complainant.
(3) Prima facie satisfaction of the Court in support of the charges.
Even though the Courts have to take the above into consideration for granting
bail, the said factors themselves cannot be taken into consideration in
isolation ignoring the well guided principles laid down by the Apex Court and
the facts and circumstances of each case.
In the light of the above, we shall examine whether in the facts and
circumstances of the case, the Additional Metropolitan Sessions Judge was
justified in granting bail to the respondents-accused.
The case of the appellant is that upon credible information that accused
No.1, namely Morjen Hossain of Mohabatpur village, Kaliachak Police Station
Limits, Malda District West Bengal, in association with other accused, is
indulging in circulation of fake Indian currency notes, by smuggling from
Pakistan, they intercepted the phone calls of the accused and arrested accused
No.1 on 06.01.2012 from his native village at Mohabatpur. On making searches,
they found that accused No.1 was in possession of fake Indian currency notes
worth Rs.2,000/-, and on interrogation, accused No.1 confessed that he procured
the fake Indian currency notes from accused No.18-Shareef Sheik, who is a
Bangladeshi national. Thereupon, they arrested accused No.18, and on his
interrogation, he revealed that he circulated the fake Indian currency notes
through his associates present in various parts of the country by paying them
commission. That in exchange of Rs.1,00,000/- fake Indian currency notes, his
associates would deposit amounts ranging between Rs. 30,000/- and Rs.35,000/-.
That one of his associates, namely accused No.12-Mohd. Hussain, resident of
Moradabad District, Uttar Pradesh, deposited the amounts in his bank A/c. No.
0293010469883 of United Bank of India, Kaliachak Branch, Malda District; bank
A/c. No. 91001009337929 of Axis Bank, Patancheru Branch, Medak District, of
accused No.2-Mohd. Anwar Sheik and; bank A/c. No. 20048612045 of SBI
Ramachandrapuram, Medak District, of accused No.3-Mohd. Anwar Sheik. That
accused No.1 used to withdraw the amounts from the said accounts by making use
of the ATM cards of accused Nos. 2, 3 and 12. That accused No.3-Mohd. Anwar
Sheik is one of the persons of the network formed by accused No.1. That accused
No.3, along with accused No.4-Sajibul Haque, and accused Nos. 5 and 6 worked for
Ramky Infrastructure, at Patancheru, Medak District, and stayed together. When
accused Nos. 3 and 4 were arrested on 06.01.2012, they were found to be in
possession of
Rs. 500/- and Rs.1,000/- denomination of fake Indian currency notes with Sl. No.
8BS 963409 and 9AT 936887 respectively. Accused No.17-Mohammed @ Sheik @ Anwar
@ Ashraf, a Pakistani national is also involved in the circulation of fake
Indian currency notes. They are investigating the involvement of accused Nos.
17 and 18 through the mechanism of MLAT request. Since the fake Indian currency
notes circulated across India and seized from the accused originated from
Pakistan, they along with the legal tender of Pakistan have sent the seized fake
Indian currency notes to Security Printing and Minting Corporation India
Limited, for examination and report. Thus, according to the appellant, the
respondents-accused along with accused No.1 and other accused are punishable for
the offences under Sections 489-B, 489-C r/w Section 120-B IPC and Sections 16
and 18 of the Unlawful Activities (Prevention) Act, 1967.
The offences for which the respondents-accused Nos. 3 and 4 are charged
are scheduled offences and come within the purview of investigation by the
National Investigation Agency. It is the contention of the appellant-NIA that
the acts of respondents-accused Nos. 3 and 4, namely circulation of fake Indian
currency notes, is resulting in loss and damage to government property, and
using the money realized by them through such circulation of fake Indian
currency notes, for raising funds for terrorist activities, which constitute
terrorist act, within the meaning of Section 15 of the Unlawful Activities
(Prevention) Act, 1967, and for such acts, they are liable for punishment under
Sections 489-B, 489-C r/w Section 120-B and Sections 16 and 17 of the Unlawful
Activities (Prevention) Act, 1967.
While considering an application for bail, the Courts need not search to see
whether there would be evidence against the accused to convict him or them after
trial. While examining so, the Court should not be meticulous in examination of
the evidence on record. In an appeal filed against an order granting bail, this
Court can certainly examine whether there is any material on record to come to
the conclusion that there is prima facie case made out against the accused,
which disentitles them to grant of bail, and as such, the bail granted to them
has to be cancelled.
In the light of the above discussion, we have to look into whether the
appellant-NIA has made out any prima facie case for cancellation of the bail
granted to the respondents-accused Nos. 3 and 4 by the Special Court/Additional
Metropolitan Sessions Judge.
A perusal of the charge sheet filed and the material collected by the appellant-
NIA against respondents-accused in its entirety, discloses that the only charge
against respondent No.1, who is accused No.3 is that at the time of his arrest
on 06.01.2012, he was found in possession of Rs.500/- fake Indian currency notes
with Sl. No. 8BS 963409 and that he has allowed accused No.1 to use his bank
A/c. No. 2004861205 of SBI, Ramachandrapuram, Medak District, to deposit and
withdraw the amount therefrom through his ATM card; while the charge against
respondent No.2, who is accused No.4 is that at the time of his arrest on
06.01.2012, he was found in possession of Rs.1,000/- fake Indian currency note
with Sl. No. 9AT 936887. The fake Indian currency notes seized from the
possession of accused Nos. 3 and 4 were sent for comparison to Currency Note
Press, Nasik, unit of SPMCL, and report was received from them confirming the
seized notes to be counterfeit notes. Except this material, there is no
material placed by the appellant-NIA to show that the respondents-accused Nos. 3
and 4 have indulged in large-scale circulation of fake Indian currency notes.
However, the counsel for the respondents-accused Nos. 3 and 4 contends that the
alleged fake Indian currency notes seized from accused Nos. 3 and 4 are fancy
notes and not meant for circulation. Whether the notes seized from the
possession of the respondents-accused Nos. 3 and 4 are fake notes or fancy notes
not meant for circulation, is a matter for trial, and it is for the appellant-
NIA to establish before the Special Court by adducing evidence.
Even though, the appellant-NIA to prove the conspiracy and terrorist activities
against the respondents, sought to rely on the legally intercepted phone calls
said to have made by accused No.3 from Phone No. 9032358281 to Phone Nos.
9593658491 and 9733086152 and accused No.4 from Phone No. 9032969225 to Phone
No. 9735588715, existing in the name of accused No.22, the report as regards
comparison of their voice, is awaited from CFSL, Chandigarh. There no other
material collected by the appellant-NIA to show that respondents-accused Nos. 3
and 4 are involved in a deeper conspiracy to destabilize the economy of the
country and are facilitating accused No.1 to raise funds for terrorist
activities.
Admittedly, the respondents-accused Nos. 3 and 4 were in jail for more than six
months, and after expiry of the said period, and considering the fact that no
material was produced by the appellant-NIA to show the involvement of the
respondents-accused Nos. 3 and 4 prima facie in circulation of fake Indian
currency notes and funding the terrorist organizations, the Additional
Metropolitan Sessions Judge has granted them bail subject to the condition of
their not meddling with the evidence and co-operating with the investigation,
when required.
In spite of adjourning the matter three times, the appellant-NIA, except stating
that investigation is still going on and respondents-accused Nos. 3 and 4 are
border residents of Bangladesh and if they are released on bail they would not
turn up for investigation and securing their presence for facing trial would be
difficult as there is every possibility of their crossing the borders of
Bangladesh, have not produced any material, much less report from the CFSL, in
relation to the voice calls which they have intercepted and sent for comparison
with the voice of the accused. They have also not produced any material to show
that the respondents-accused have jumped bail or made any attempts to cross the
borders of Bangladesh or have not co-operated with the investigation or
threatened the prosecution witnesses or tampered with the evidence. In that
view of the matter, the contention of the appellant-NIA that the respondents-
accused may flew away from the country, in our opinion, cannot be kept in an
ivory tower. The individual liberty is restricted by large social interest and
its deprivation must have due sanction of law.
The appellant-NIA failed to demonstrate before this Court that by grant of bail
to the respondents-accused Nos. 3 and 4 prejudice is caused to the State or to
the security of the State, and on the other hand, it is their case that the
accused are co-operating with the investigation and attending to the Court on
every date of adjournment.
In view of the above, we are of the considered opinion that the Special
Court/Additional Metropolitan Sessions Judge, has exercised its discretion
judicially, cautiously and considering the material available on record granted
bail to the respondents-accused Nos. 3 and 4, and no interference is warranted
with such an order passed by the Special Court/Additional Metropolitan Sessions
Judge granting bail to the respondents-accused Nos. 3 and 4, and more
particularly when the appellant-NIA failed to point out any serious infirmity in
the discretion exercised by the Special Court/Additional Metropolitan Sessions
Judge.
Accordingly, we answer question No.2 holding that the Additional Metropolitan
Sessions Judge, in the fact and circumstances of the case, was justified in
granting bail to the respondents-accused Nos. 3 and 4.
For the foregoing reasons, we find no merit in the criminal appeal, and the same
is accordingly dismissed.
________________
N.V. RAMANA, J.
____________________ P. DURGA PRASAD, J. Dated: 21st December, 2012