Chattisgarh High Court
Mukesh Salam vs State Of Chhattisgarh on 20 October, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.445 of 2022
1. Mukesh Salam, aged about 30 years, S/o Ramcharan Salam, R/o
Vill. Kandadi, P.S. Koyalibeda, Tah. Pakhanjur, Distt. North Bastar
Kanker (C.G.)
2. Rajendra Salam, aged about 28 years, S/o Subesingh Salam, R/o
Vill. Marda, P.S. Koyalibeda, Tah. Pakhanjur, Distt. North Bastar
Kanker (C.G.)
3. Arun Thakur, aged about 41 years, S/o Prasanna Kumar Thakur,
R/o Vill. Koyalibeda, P.S. Koyalibeda, Tah. Pakhanjur, Distt. North
Bastar Kanker (C.G.)
(In Jail)
---- Appellants
Versus
State of Chhattisgarh, through P.S. Siksod, Distt. North Bastar
Kanker (C.G.)
---- Respondent
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For Appellants: Mr. Rakesh Kumar Thakur, Advocate.
For Respondent / State: -
Mr. Ashish Tiwari, Govt. Advocate.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Deepak Kumar Tiwari, JJ.
Judgment on Board (20/10/2022) Sanjay K. Agrawal, J.
1. This criminal appeal under Section 21(4) of the National Investigation Agency Act, 2008 is directed against order dated 10- 2-2022 passed by the Special Judge (NIA Act), Kanker, District North Bastar Kanker in Bail Application No.38/2022, by which the appellants' application under Section 439 of the CrPC seeking bail for offences under Sections 10, 13, 17, 38(1)(2), 40, 22-A & 22-C of 2 the Unlawful Activities Prevention Act, 1967 (for short, 'the UAPA'); Section 8(2)(3)(5) of the Chhattisgarh Vishesh Jan Surksha Adhiniyam, 2005 (for short, 'the Act of 2005'); and Sections 120B, 201 & 149/34 of the IPC, has been rejected finding no merit.
2. Case of the prosecution, in brief, is that on 24-3-2020, on the basis of secret information, the respondent searched a vehicle bearing registration No.CG-07/AH-6555 driven by Tapas Kumar Palit. In that search, 95 pairs of shoes, green black printed cloths for uniform, 2 bundles of electric wires each of 100 meter, LED lens, walki talki and other articles were found in his possession (Tapas Kumar Palit). Seizure was made accordingly. It is the further case of the prosecution that these articles were to be supplied by Tapas Kumar Palit to naxalites in order to support their illegal and disruptive activities. It is also the case of the prosecution that said Tapas Kumar Palit was working with Rudransh Earth Movers Road Construction Company, a partnership firm of Ajay Jain and Komal Verma. It is also the case of the prosecution that Tapas Kumar Palit provided information that articles were being provided on the instructions/ consent of Ajay Jain and Komal Verma, who were given consent/permission to do so by Varun Jain, Director of M/s Landmark Royal Engineering (India) Private Limited. It is also the case of the prosecution that the accused were providing funds as well to naxalites though no cash was recovered on the said date, but the police arrested all of them on 23.4.2020. It is also the case of the prosecution that Ajay Jain and Komal Verma were working as sub-contractors for road construction of PMGSY Road work 3 originally given to M/s Landmark Royal Engineering Private Limited. FIR under Crime No.9/2020 was registered and they were charge- sheeted for the aforesaid offences on 8-9-2020 and thereafter charges have been framed on 5-8-2021 and out of 100 listed witnesses, only 13 witnesses have been examined and seizure witnesses namely Mantesh Dhruw and Rajesh Sahu have also been examined.
3. Case against the present appellants is that appellant No.1 Mukesh Salam is paternal uncle of Naxalite Commander Raju Salam and he was in direct and constant touch with Raju Salam, who has been alleged to be the main figure to whom all the materials and cash were being supplied. Appellant No.1 always accompanied other accused persons Tapas Kumar Palit and appellant No.3 Arun Thakur for delivering the materials to Naxalite members. From the possession of appellant No.1, a mobile phone has been recovered bearing No.7587797686 and call details record of the said phone has been produced. It is the case of the prosecution that appellant No.2 Rajendra Salam was having close relationship with Tapas Kumar Palit and had provided his tractor to Tapas Kumar Palit for using it in road construction from Kotul board to Siksod and appellant No.2 & Tapas Kumar Palit used to visit and meet Naxalite Commander Raju Salam where Raju Salam used to give instructions regarding supply of material and Tapas Kumar Palit has purchased material and kept it with appellant No.2 which was later handed over to appellant No.1. It is the further case of the prosecution that on the date of incident i.e. on 24-3-2020, 4 appellants No.1 & 2 had a conversation and both of them were waiting for Tapas Kumar Palit, however, on the same intervening evening, Tapas Kumar Palit was arrested and from the possession of appellant No.2, a mobile phone bearing No.7587003379, which was used by appellant No.2 for connecting with appellant No.1 and Tapas Kumar Palit, was seized. It is also the case of the prosecution that appellant No.3 Arun Thakur used to regularly visit and meet Naxalite Commander Raju Salam and used to supply materials such as Walky Talky to Raju Saklam and he was in direct and constant touch with Raju Salam and used to take instructions regarding delivery of materials and he always accompanied Tapas Kumar Palit & appellant No.1 herein for delivering materials to the Naxalite members.
4. The appellants herein have filed application under Section 439 of the CrPC for grant of bail before the Special Court under the NIA Act, which has been rejected by the impugned order finding no merit against which this criminal appeal has been filed.
5. Mr. Rakesh Kumar Thakur, learned counsel appearing for the appellants, would submit that co-accused persons Ajay Jain, Shailendra Bhadouriya & Komal Verma have been enlarged on bail in Cr.A.Nos.328/2022 & 706/2022 by orders dated 4-5-2022 & 13-5- 2022, respectively, and allegation against the present appellants is similar to that of co-accused Ajay Jain, Shailendra Bhadouriya & Komal Verma. He would further submit that co-accused persons Hitesh Agrawal & Varun Jain have been granted interim bail by the Supreme Court by order dated 3-1-2022 passed in SLP (Crl.) 5 Nos.8147-8148/2021. He would also submit that 28 witnesses have examined but none of them have supported the case of the prosecution and trial is likely to take some time, therefore, the appellants be released on bail.
6. Mr. Ashish Tiwari, learned State counsel, would submit that the present appellants are directly involved and connected with the main accused person - Naxalite Commander Raju Salam who is still absconding and could not be arrested and case of the present appellants is not identical to that of the co-accused persons who have been enlarged on bail. He would further submit that if the present appellants are enlarged on bail, there is grave possibility that they would abscond and would not be traceable for facing the trial. In that view of the matter, the present appeal deserves to be dismissed. He would rely upon the decision of the Supreme Court in the matter of National Investigation Agency v. Zahoor Ahmad Shah Watali1 in support of his contention.
7. We have heard learned counsel appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection.
8. The main ground which has been sought to be urged in this appeal preferred by the appellants is their case is identical with that of co- accused Ajay Jain, Shailendra Bhadouriya & Komal Verma who have been released on bail. Admittedly, they have been released on bail by this Court by orders dated 4-5-2022 & 13-5-2022 passed in Cr.A.Nos.328/2022 & 706/2022, respectively, finding prima facie 1 (2019) 5 SCC 1 6 case for grant of bail in light of the decisions of the Supreme Court observing as under: -
"13. Reverting to the facts of the present case in the light of aforesaid position, it is quite vivid that main accusation against the appellant is that he was paid levy/ extortion money to naxalities for undertaking road construction work in Kanker, whereas in Sudesh Kedia (supra) their Lordships of the Supreme Court have clearly held that payment of extortion money to a banned/terror organization does not amount to terror funding. It is not apparent from the charge-sheet and other documents that the appellant was paying extortion money for letting them work smoothly as no incriminating material in terms of money, cloths, wireless set etc. were recovered from his possession.
14. Considering the fact that two co-accused persons namely Hitesh Agrawal and Varun Jain, who are Directors of M/s Landmark Royal Engineering (India) Private Limited being principal employer of the appellant and the appellant is said to be sub-contractor of them, have been enlarged on bail (interim) by their Lordships of the Supreme Court in SLP (Crl.) Nos.8147-8148/2021 on 3.1.2022 and the appellant is in custody since 23.4.2020 for more than two years and the trial is likely to take time and also considering the nature of evidence available on record with regard to meeting of the appellant with terrorist/banned organization and no objectionable material/cash was recovered from possession of the appellant, we are of the considered opinion that learned Special Judge (NIA) is absolutely unjustified in rejecting the application for grant of bail. In view of above-stated discussion, reliance placed by learned counsels for the respondent in the matters of Hitesh Agrawal v. State of Chhattisgarh (CRA No.463/2021) and Varun Jain v.
State of Chhattisgarh (CRA No.302/2021), decided by this Court on 22.9.2021, are not helpful to the respondent as against the aforesaid orders, SLP (Crl.) Nos.8147- 8148/2021 have been entertained by the Supreme Court and Hitesh Agrawal and Varun Jain have been enlarged on interim bail."
9. However, from the materials available on record of the case diary, it 7 is quite vivid that appellant No.1 is paternal uncle of Naxalite Commander Raju Salam, who is the main accused and who is absconding and who is actually involved in the Naxalite movement in the said area. Appellants No.2 & 3 are in direct touch with Naxalite Commander Raju Salam in supplying materials, cash, etc. and in delivering materials to the Naxalite members. Even appellant No.2 is having close relationship with Tapas Kumar Palit who is also one of the main accused in the said offence and there is material evidence of meeting of appellant No.2 with Naxalite Commander Raju Salam and similar is the case of appellant No.3. As such, the cases of the present three appellants are not identical to that of Ajay Jain, Shailendra Bhadouriya & Komal Verma, who have been enlarged on bail by this Court, particularly, the apprehension and possibility expressed by the learned State counsel that the appellants have close link and asosication with Naxalite Commander Raju Salam and appellant No.1 being close relative of Raju Salam, the possibility of absconding of the appellants, if released on bail, cannot be ruled out.
10. Taking into consideration the close connection and direct link of the appellants with Naxalite Commander Raju Salam and that chances of their absconding on being released on bail cannot be ruled out, considering the material available on record and their cases are not similar to that of co-accused persons Ajay Jain, Shailendra Bhadouriya & Komal Verma, who have been enlarged on bail, we do not find any illegality in the order passed by the NIA Court rejecting the application of the appellants herein for grant of bail. 8
Accordingly, the criminal appeal is dismissed. However, the trial Court is directed to consider and expedite the trial.
11. It is made clear that any observation made in this judgment is only for the purpose of deciding the appeal under Section 21(4) of the NIA Act and this Court has not made any observation on the merits of the matter and the Special Judge (NIA Act) will decide the matter strictly as per material available on record without being influenced by any observation made in this order.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Soma