TaxTMI 
TaxTMI 
2021 (6) TMI 1072
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....5.2020 in case FIR No. 59/2020 dated 06.03.2020 registered under sections 147/148/149/120B Indian Penal Code 1860 ('IPC', for short) at P.S.: Crime Branch ('subject FIR', for short) in connection with the incidents of violence and rioting that occurred in North-East Delhi between 22.02.2020 and 26.02.2020. It may be noted that offences under sections 109/114/124A/153A/186/201/212/295/302/307/341/353/395/419/420/427/435/436/452/454/468/471/34 IPC, sections 3/4 of the Prevention of Damage to Public Property Act, 1984 ('PDPP Act', for short), sections 25/26 of Arms Act, 1959 and sections 13/16/17/18 of the Unlawful Activities (Prevention) Act, 1967 ('UAPA', for short) were subsequently added to the subject FIR. At the time of his arrest in the subject FIR on 19.05.2020, the appellant was already in judicial custody in a different case arising from FIR No. 298/2019 dated 16.12.2019 registered under sections 143/147/148/149/435/427/323/186/353/332/308/341/120B/34 IPC and sections 3/4 of the PDPP Act at P.S.: Jamia Nagar, New Delhi. For completeness it may be mentioned that FIR No. 298/2019 was registered in connection with protests held in Delhi in 2019 a....
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.... No. 7 of Jamia University and the appellant, alongwith other co-accused persons, formed the Jamia Co-ordination Committee ('JCC', for short). The JCC was formed to protest against the CAA; d) that on 17.12.2019, a WhatsApp group of the JCC was formed to monitor, control and manage the protest sites in Delhi; and the office of the JCC was set-up in a room at Gate No. 18 of Jamia University; e) that at a meeting of members of the JCC and representatives of another entity called 'Pinjra Tod', it was decided to hold a chakkajam in North-East Delhi (chakkajam being loosely translatable as a form of protest in which protesters cause complete stoppage of vehicles and blockade of roads); f) that as part of the conspiracy, women and children were mobilized to prevent the police from using force against them; g) that for the foregoing purposes, the co-conspirators gave directions to the appellant; and the appellant, alongwith other co-accused persons ratified them; h) that the appellant provided a SIM card to one of the co-accused, in the office of the JCC, using which the latter posted directions and instructions on the JCC WhatsApp group; i) that co-accused per....
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....ubject charge-sheet that are alleged to contain specific allegations against the appellant, as referred to by the learned Additional Solicitor General appearing for the Delhi Police (Special Cell), are extracted in a separate Annexure to this judgment for ease of reference. Genesis of UAPA 7. The genesis of The Unlawful Activities (Prevention) Act 1967 lies in the recommendations of the Committee on National Integration and Regionalisation set-up by the National Integration Council to look inter alia into the aspect of putting reasonable restrictions on certain freedoms in the interests of the sovereignty and integrity of India. As reflected in the Statement of Objects and Reasons of the UAPA, it was pursuant to the recommendations of the said committee that the Parliament enacted the Constitution (Sixteenth Amendment) Act 1963 to impose reasonable restrictions in the interests of sovereignty and integrity of India on: (i) the freedom of speech and expression; (ii) the right to assemble peacefully and without arms; and (iii) the right to form associations and unions. 8. Pursuant thereto, the Unlawful Activities (Prevention) Bill was introduced in the Parliament to make pow....
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....text of the present matter, what is to be noticed is that the UAPA has been enacted by Parliament and must therefore have been enacted in relation to a matter appearing in Entry 1 and/or Entry 93 of List-I, namely the Union List in the Seventh Schedule of the Constitution since no other legislative subject appears to cover the enactment of the UAPA. Entries 1 and 93 of List-I read as under: [Article 246] List I -- Union List 1. Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation. * * * * * 93. Offences against laws with respect to any of the matters in this List." 13. It further requires to be noticed that Entry 1 of List-II refers to matters of 'public order', which subject therefore falls within the legislative competence of the State Legislature; and Entry 1 of List-III relates to matters of 'criminal law', including all matters included in the IPC but excluding offences against laws with respect to any matter specified in List-I or List-II and excluding the use of Naval, Military, Air Force or any other A....
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....the people in India or in any foreign country,-- (a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause -- (i) death of, or injuries to, any person or persons; or (ii) loss of, or damage to, or destruction of, property; or (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or (iii-a) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or (iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any publi....
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....any of the acts stated therein shall constitute an offence; (b) raising funds shall include raising or collecting or providing funds through production or smuggling or circulation of high quality counterfeit Indian currency; and (c) raising or collecting or providing funds, in any manner for the benefit of, or, to an individual terrorist, terrorist gang or terrorist organisation for the purpose not specifically covered under Section 15 shall also be construed as an offence. "18. Punishment for conspiracy, etc.--Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine." * * * * * "43-D. Modified application of certain provisions of the Code.-- (1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of Section 2 of the Code, and "....
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....ating the grant of bail, its liberal approach in the matter of bail under the NDPS Act is indeed uncalled for." (emphasis supplied) 17. In Union of India vs. Shiv Shanker Kesari (2007) 7 SCC 798, the Hon'ble Supreme Court has said: "7. The expression used in Section 37(1)(b)(ii) is "reasonable grounds". The expression means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence charged and this reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify recording of satisfaction that the accused is not guilty of the offence charged. "8. The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word "reasonable". ""7. ... In Stroud's Judicial Dictionary, 4th Edn., p. 2258 states that it would be unreasonable to expect an exact definition of the word 'reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the in....
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....t involved in disruptive activities, bail shall ordinarily be refused. Even under the provisions of Sections 437 and 438 of the Code of Criminal Procedure, the powers of the Sessions Judge are not unfettered. The salient principles in granting bail in grave crimes have not been taken note of. * * * * * "7. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the court. Where the offence is of serious nature the court has to decide the question of grant of bail in the light of such considerations as the nature and seriousness of offence, character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of presence of the accused not being secured at the trial and the reasonable apprehension of witness being tampered with, the larger interest of the public or such similar other considerations." (emphasis supplied) 19. A Constitutional Bench of the Hon'ble Supreme Court in Kartar Singh vs. State of Punjab (1994) 3 SCC 569, while inter alia determining the constitutional validity of Section 20(8) of TADA, held:....
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....i vive, it cannot be said that the provisions of TADA Act are enforced effectively in consonance with the legislative intendment." (emphasis supplied) Bail under Maharashtra Control of Organised Crime Act 1999 ('MCOCA') 20. Dealing with section 213 MCOCA, which is the bail provision under that statute, in State of Maharashtra vs. Vishwanath Maranna Shetty (2012) 10 SCC 561, the Hon'ble Supreme Court holds: "30. The analysis of the relevant provisions of MCOCA, similar provision in the NDPS Act and the principles laid down in both the decisions shows that substantial probable cause for believing that the accused is not guilty of the offence for which he is charged must be satisfied. Further, a reasonable belief provided points to existence of such facts and circumstances as are sufficient to justify the satisfaction that the accused is not guilty of the alleged offence. We have already highlighted the materials placed in the case on hand and we hold that the High Court has not satisfied the twin tests as mentioned above while granting bail." (emphasis supplied) Bail under Prevention of Terrorism Act 2002 ('POTA') 21. Section 49 (6)4 and (7)5 POTA has be....
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....stence of such a power. The only additional condition added by the subsection is the requirement of giving an opportunity to the Public Prosecutor before the order of release on bail or on bond is passed. Sub-section (7), however, is a departure from the normal rule in the sense that it heightens the burden on the defence. The language suggests that where the Public Prosecutor opposes the bail application, such accused could not be released on bail until the Court is satisfied that there are grounds for believing that he is innocent. The plain meaning would be that instead of showing that there is no prima facie case against him for his conviction, the accused would have to show that there is a prima facie case for his acquittal. Then comes the questioned proviso which suggests that after the expiry of one year from the date of detention of the accused, the provisions of sub-section (6) of Sec. 49 shall apply. We shall go to the other provisions later on but, at this juncture, it would be better to see the logic applied by the Special Court. * * * * * "8. ... The language of sub-section (7) is complementary to subsection (6). It suggests that where during such hearing the Publi....
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....nless 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. Nevertheless, we may take guidance from the exposition in Ranjitsing Brahmajeetsing Sharma [(2005) 5 SCC 294], wherein a three-Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail... "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 findi....
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....ch prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case. "27. For that, the totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance. In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. For, the issue of admissibility of the document/evidence would be a matter for trial. The Court must look at the contents of th....
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....iod of incarceration already undergone has exceeded a substantial part of the prescribed sentence... * * * * * "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 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 pre-condition under the UAPA. Instead, Section 43-D(5) of 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." (emphasis supplied) Appellant's Submissions 25. Mr. Siddharth Aggarwal, learned counsel for the appellant has principally made the following submissions: (i) It is submitted that the subject FIR viz. FIR No. 59/2020 dated 06.03.2020 registered at P.S.: Crime Branch was initially registered under sections 147/148/149/120B IPC, which are all bailable offences.....
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.... alleged, the learned ASG has relied upon certain portions of the subject FIR and the subject charge-sheet, which are extracted as screenshots in Annexure - B to this judgment for ease of reference. (i) That considering the "totality of evidence, including the statements of the protected witnesses, the documentary evidence and other evidences collected", the complicity of the appellant in the offences of which he is accused is prima facie established, within the meaning of section 43D(5) UAPA. It is urged that the test to justify rejection of bail is whether on the evidence available it is possible to arrive at the conclusion that the case against the appellant is prima facie true. It is not the purport of a bail proceeding that evidence be weighed and benefit of doubt be given to the appellant. (ii) It is argued that the present case is one of "serious disturbance of public order undermining security of state" as distinguished from one directed against the individuals, and the acts in their degree, extent and reach justifying the invocation of the provisions under which the appellant is accused. Moreover, it is submitted that the "context and circumstances in which the acts we....
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....facie case has been made-out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. (vi) It is also pointed-out that in State of Gujarat vs. Gadhvi Rambhai Nathabhai and Ors. (1994) 5 SC 111, while construing section 20(8) TADA, which provision imposed a far more onerous responsibility than the one under section 43D(5) UAPA, the Hon'ble Supreme Court held that the power to grant bail cannot be exercised in a manner virtually amounting to an order of acquittal, giving benefit of doubt to the accused after weighing the evidence collected during investigation. (vii) The learned ASG has read the verdict of the Hon'ble Supreme Court in Watali (supra) to submit that the Hon'ble Supreme Court has said that at the stage of granting or denying bail under UAPA, an elaborate examination or dissection of the evidence is not required 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. It is pointed-out t....
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....and malevolent, with repercussions on public tranquility that are far more serious than ordinary forms of political protest. It is further alleged that the chakkajam which was planned was with a "difference" and the intention was "to stop milk and water" and was to be done not only in Delhi but in "every place where it was possible for Muslims" to organise it. It was intended to "cause riots and fear". To support this submission the State draws attention to the portion of the subject charge-sheet extracted as Screenshot 1 and 2 in Annexure - B attached to this judgment. (xiii) As evidence of the "general agreement between the conspirators with regard to the common purpose", the State draws attention of this court to a portion of the purported statement dated 19.06.2020 of one of protected witnesses named Hector. To support this submission the State draws attention to the portion of the subject charge-sheet extracted as Screenshot 3 in Annexure - B. (xiv) The State alleges thereby that "a radical approach animated by extremist intent giving a different orientation to words of ordinary connotation like chakkajam is self-evident". To support this, the State has relied upon page No....
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....tive and seditious in content and clearly undermined the State. In this regard the State refers to page 2040 of the subject charge-sheet, which is extracted as Screenshot 12 in Annexure - B. (xxi) Mr. Lekhi contends that the CAA had nothing to do with Indian Muslims; that there was no project to disenfranchise and definitely nothing to justify the allegation that Muslims will be put in detention camps. It is alleged that the endeavour of the co-conspirators was therefore only to inflame passions, whip-up religious frenzy and foment violence. The "burning" of Assam, "killing" of people and "disruption" of Delhi was intended towards that end. (xxii) It is urged that there was thus, an "emphasis upon division and polarisation through narrowing the areas of mutual engagement by emphasising ethnocultural nationalism over cosmopolitanism and using the excuse of a political protest to give primacy to religion"; and a general disenchantment was sought to be created affecting the security of the State. Reference in this regard was made by the State to the statement dated 25.06.2020 of protected witness named Romeo, which is extracted as Screenshot 13 in Annexure - B, alleging that the a....
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....1684) and Ct. (GD) Srinivas Rao (page 1684-1685), SI. Bheesham Rana (page 1801-1802) and Harender at (page 1802-1803), which are extracted as Screenshot 19a-19e, 20a-20c, 21, 22, 23, 24, 25 and 26 in Annexure - B. (xxviii) It is alleged that the breach of public order was neither small nor insignificant but was grave and serious affecting public tranquility, impacting unity and integrity and creating terror; and that not merely law and order was affected but the even "tempo of the life of the community was also disturbed". (xxix) The State contends that the subject charge-sheet shows that there were 53 deaths including those of public functionaries, over seven hundred people were injured, deployment of an additional police force of 7800 was needed over and above the 2200 policemen already deployed; that "protests were coordinated across Delhi and covered diverse areas like Jamia, Seelampur, Khajuri, Hauzrani, Khureji and Jafrabad", with there being plans to extend this protest across other cities of the country; and that there was extensive and widespread destruction of property involving settlement of claims of approximately Rs. 22 crores. As many as 16,381 PCR calls were rece....
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....s on symbolic targets including civilians (iv) entailed acts of violence seen by the society as "extra normal" intended to provoke an overreaction serving as a catalyst for more general conflict and publicised as a political cause inducing both fear and a sense of insecurity, by reason of which the characteristics of 'terrorism' as set-out by Paul Wilikson and cited in People's Union For Civil Liberties and Anr. vs. Union of India (2004) 9 SCC 580, ('PUCL', for short) and Mohd. Iqbal M. Shaikh and Ors. vs. State of Maharashtra (1998) 4 SCC 494 are duly satisfied. The State argues that under the UAPA, it is not just the intent to threaten the unity and integrity but the likelihood to threaten the unity and integrity, not just the intent to strike terror but the likelihood to strike terror, not just the use of firearms but the use of any means of whatsoever nature, the means not just causing but likely to cause not just death but injuries to any person or persons or loss or damage or destruction of property, constitutes terrorist act within the meaning of section 15 of UAPA. (xxxiv) It is urged that moreover, under section 18 of UAPA, not merely conspiracy to co....
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....ection 15 of the UAPA defines 'terrorist act' and section 18 provides for 'punishment for conspiracy for committing a terrorist act, including an attempt to commit or advocating, abetting, advising or inciting the commission of a terrorist act, as also of any act preparatory to the commission of a terrorist act', the word 'terrorism' or 'terror' has nowhere been defined in the UAPA. For completeness it may be noticed that section 2(1)(k) of the UAPA says that the phrase 'terrorist act' shall have the meaning as assigned to it in section 15 and that the expressions 'terrorism' and 'terrorist' shall be construed accordingly. 29. What however, is 'terrorism' or 'terror', from which the meaning of 'terrorist act' and other related words may be derived? 30. The concept and construction of terrorism has been dealt-with by the Hon'ble Supreme Court in relation to earlier legislations inter alia in the decisions discussed below. 31. In Hitendra Vishnu Thakur & Ors. vs. State of Maharashtra & Ors. (1994) 4 SCC 602, defining terrorism, the Hon'ble Supreme Court says: "7. 'Terrorism' is one of....
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....w of the land. Even though the crime committed by a 'terrorist' and an ordinary criminal would be overlapping to an extent but then it is not the intention of the Legislature that every criminal should be tried under TADA, where the fall out of his activity does not extend beyond the normal frontiers of the ordinary criminal activity. Every 'terrorist' may be a criminal but every criminal cannot be given the label of a 'terrorist' only to set in motion the more stringent provisions of TADA. The criminal activity in order to invoke TADA must be committed with the requisite intention as contemplated by Section 3(1) of the Act by use of such weapons as have been enumerated in Section 3(1) and which cause or are likely to result in the offences as mentioned in the said section." (emphasis supplied) 32. TADA deals with activity "which cannot be classified as a mere law and order problem or disturbance of public order or even disturbance of the even tempo of the life of the community of any specified locality, but is of the nature which cannot be tackled as an ordinary criminal activity under the ordinary penal law by the normal law enforcement agencies because....
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....he object that these Acts seek to subserve must be objectively examined in the background of the totality of the series of events -- due to the unleashing of terrorism, waves after waves, leading to the series of bomb blasts causing extensive damage to the properties, killing of hundreds of people, the blood-curdling incidents during which the blood of the sons of the soil had been spilled over the soil of their motherland itself, the ruthless massacre of the defenceless and innocent people especially of poor as if they were all 'marked for death' or for 'human sacrifice' and the sudden outbreak of violence, mass killing of army personnel, jawans of Border Security Force, government officials, politicians, statesmen, heads of religious sects by using bombs and sophisticated lethal weapons thereby injecting a sense of insecurity in the minds of the people, with the intention of destabilizing the sovereignty or overthrowing the Government as established by law. The way in which the alleged violent crimes is shown to have been perpetrated, the manner in which they have been cruelly executed, the vulnerable territorial frontiers which form part of the scene of unprecede....
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....he institution of democracy, which is the very basis of our country (by attacking Parliament, Legislative Assembly etc.). And the attack on economic system by targeting economic nerve centres. 2. Attack on symbols of national pride and on security/strategic installations (e.g. Red Fort, military installations and camps, radio stations etc.). 3. Attack on civilians to generate terror and fear psychosis among the general populace. The attack at worshipping places to injure sentiments and to whip communal passions. These are designed to position the people against the Government by creating a feeling of insecurity. "9. Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in....
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.... destruction (WMD). * * * * * "816. The United Nations Security Council in its 2004 Resolution [Ed.: UN Doc. S/RES/1566 (2004); Resolution 1566 (2004) adopted by the Security Council on 8-10-2004.] denounced "terrorist acts" as follows" "criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a Government or an international organisation to do or abstain from doing any act, which constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations or a political, philosophical, ideological, racial, ethnic, religious or other similar nature,..." (emphasis supplied) 37. In Zameer Ahmed Latifur Rehman Sheikh vs. State of Maharashtra & Ors. (2010) 5 SCC 246, dealing with the constitutionality of MCOCA and opining on the distinction between 'public order' and 'security of the State', the Hon'ble Supreme Court says: "31. I....
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....ate', 'law and order' also comprehends disorders of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State." "34. The Constitution Bench of this Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr [ (1970) 3 SCC 746] while adopting and explaining the scope of the test laid down in Ram Manohar Lohia (Dr.) v. State of Bihar [ AIR 1966 SC 740] stated that the State is at the centre of the society. Disturbances in the normal functioning of the society fall into a broad spectrum, from mere disturbance of the serenity of life to jeopardy of the State. The acts become more and more grave as we journey from the periphery of the largest circle towards the centre. In this journey we travel first through public tranquillity, then through public order and lastly to the security of the State. This Court further held that in t....
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....order issued by the Central Government in exercise of power under Section 2 of the United Nations (Security Council) Act, 1947 which is known as the Prevention and Suppression of Terrorism (Implementation of Security Council Resolutions) Order, 2007. * * * * * "72. The precise reason why we have extracted the list of terrorist organisations under UAPA hereinbefore is to bring to the fore the contrast between the two legislations which are in question before us. The exhaustive list of terrorist organisations in the First Schedule to UAPA has been included in order to show the type and nature of the organisations contemplated under that Act. A careful look of the same would indicate that all the organisations mentioned therein have as their aims and objects undermining and prejudicially affecting the integrity and sovereignty of India, which certainly stand on a different footing when compared to the activities carried out by the forces like the appellant. * * * * * * "75. A perusal of the Preamble, the Statement of Objects and Reasons and the interpretation clauses of MCOCA and UAPA would show that both the Acts operate in different fields and the ambit and scope of each is ....
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....e made here. 41. In A.K. Roy vs. Union of India and Ors. (1982) 1 SCC 271, dealing with the validity of certain provisions of the National Security Ordinance/Act, which were challenged as unconstitutional on the ground of vagueness, and which ordinance provided for preventive detention, the majority of a 5-Judge Bench of the Hon'ble Supreme Court partly accepted the challenge, holding that what constitutes 'essential services and supplies' should have been specified and published in advance by a law, order or notification, and says: "62. The requirement that crimes must be defined with appropriate definiteness is regarded as a fundamental concept in criminal law and must now be regarded as a pervading theme of our Constitution since the decision in Maneka Gandhi [AIR 1978 SC 597]. The underlying principle is that every person is entitled to be informed as to what the State commands or forbids and that the life and liberty of a person cannot be put in peril on an ambiguity. However, even in the domain of criminal law, the processes of which can result in the taking away of life itself, no more than a reasonable degree of certainty has to be accepted as a fact. Neither....
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....d by the legislature and indeed, legislations which regulate the prices and possession of essential commodities either enumerate those commodities or confer upon the appropriate Government the power to do so. In the absence of a definition of 'supplies and services essential to the community', the detaining authority will be free to extend the application of this clause of sub-section (2) to any commodities or services the maintenance of supply of which, according to him, is essential to the community. "65. But that is not all. The Explanation to sub-section (2) gives to the particular phrase in that sub-section a meaning which is not only uncertain but which, at any given point of time, will be difficult to ascertain or fasten upon. ... We find it quite difficult to understand as to which are the remaining commodities outside the scope of the Act of 1980, in respect of which it can be said that the maintenance of their supplies is essential to the community. The particular clause in sub-section (2) of Section 3 of the National Security Act is, therefore, capable of wanton abuse in that, the detaining authority can place under detention any person for possession of any co....
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....ced punishments also; make confessional statements made to a police officer not below the rank of a Superintendent of Police admissible in evidence and mandates raising of a rebuttable presumption on proof of facts stated in clauses (a) to (d) of sub-section (1) of Section 21. Provision is also made in regard to the identification of an accused who is not traced through photographs. There are some of the special provisions introduced in the Act with a view to controlling the menace of terrorism. These provisions are a departure from the ordinary law since the said law was found to be inadequate and not sufficiently effective to deal with the special class of offenders indulging in terrorist and disruptive activities. There can, therefore, be no doubt that the legislature considered such crimes to be of an aggravated nature which could not be checked or controlled under the ordinary law and enacted deterrent provisions to combat the same. The legislature, therefore, made special provisions which can in certain respects be said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard t....
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....icate is the offence contemplated by the Statement of Objects and Reasons. There are offences and offences under the Penal Code, 1860 and other penal statutes providing for punishment of three years or more and in relation to such offences more than one charge-sheet may be filed. As we have indicated hereinbefore, only because a person cheats or commits a criminal breach of trust, more than once, the same by itself may not be sufficient to attract the provisions of MCOCA. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA. * * * * * "38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed....What would further be necessary on the part of the court is to see the culpability of the accused in his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whethe....
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.... the fundamental rights guaranteed under our Constitution. The right to protest has been discussed and expatiated in various judgments, a reference to some of which is made below. 46. In Mazdoor Kisan Shakti Sangathan vs. Union of India and Anr. (2018) 17 SCC 324, the Hon'ble Supreme Court says: "48. ...Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right. This right is specifically enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution of India. Article 19(1)(a) confers a very valuable right on the citizens, namely, right of free speech. Likewise, Article 19(1)(b) gives the right to assemble peacefully and without arms. Together, both these rights ensure that the people of this country have the right to assemble peacefully and protest against any of the actions or the decisions taken by the Government or other governmental authorities which are not to the liking. Legitimate dissent is a distinguishable feature of any democracy. Question is not as to whether the issue raised by the protestors is right or wrong or it is justified....
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....ion of public meetings on streets or highways to avoid nuisance or disruption to traffic and thus, it can provide a public meeting on roads, but it does not mean that the Government can close all the streets or open areas for public meetings, thus denying the fundamental right which flows from Articles 19(1)(a) and (b). The Court held: (SCC pp. 239 & 248, paras 33 & 70) "33. This is true but nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order. * * * 70. Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre-Independence days such meetings have been held in open space and public streets and the people have come to regard it as a part of their privileges and immunities. The State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore, the State or Municipality can constitutionally close both its streets and it....
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....d not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions. The preventive steps should be founded on actual and prominent threat endangering public order and tranquillity, as it may disturb the social order. This delegated power vested in the State has to be exercised with great caution and free from arbitrariness. It must serve the ends of the constitutional rights rather than to subvert them." "53. Further, in Anita Thakur [ (2016) 15 SCC 525], the Court recognised that the right to peaceful protest was a fundamental right under Articles 19(1), (b) and (c) of the Constitution, subject to reasonable restrictions. It was finally held that in that while the protestors turned violent first, the police used excessive force: (SCC pp. 533-34, paras 12-13 & 15) "12...... The "right to assemble" is beautifully captured in an eloquent statement that "an unarmed, peaceful protest procession in the land of "salt satyagraha", fast-unto-death and "do or die" is no jural anathema". It hardly needs elaboration that a distinguishing feature of any democra....
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.... gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected. "62. We feel that the pathetic conditions which were caused as a result of the processions, demonstrations and agitations, etc. at the Jantar Mantar were primarily because of the reason that the authorities did not take necessary measures to regulate the same. Had adequate and sufficient steps been taken by the authorities to ensure that such dharnas and demonstrations are held within their bounds, it would have balanced the rights of protestors as well as the residents. For example, the dharnas and protests were allowed to be stretched almost on the entire Jantar Mantar Road, on both sides, and even across the width of the road. Instead, a particular area could have been earmarked for this purpose, sufficiently away from the houses, etc. so that there is no unnecessary blockage of roads and pathways. Likewise, the demonstrators were allowed to go on with nonstop slogans, even at odd hours, at night, and that too with the use of loudspeakers, etc. The authorities could have ensured that such sl....
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....he right quarters by numerous means. Electronic and print media play a pivotal role. Then, we have social media and various applications like "WhatsApp", "Twitter", "Instagram", etc. which take no time in spreading such events........" (emphasis supplied) True connotation of 'terrorist act' & do accusations make-out an offence under UAPA 47. First and foremost, this court would be required to consider whether the allegations against the appellant in the subject charge-sheet make-out any offence under Chapters IV and/or VI of the UAPA, and if so, which offence or offences are disclosed. As seen from the discussion above, the offences alleged against the appellant under Chapter IV are offences under sections 15, 17 and 18, all of which fall under Chapter IV of the UAPA. Section 15 engrafts the offence of 'terrorist act', section 17 lays-down the punishment for raising funds for committing a terrorist act and section 18 engrafts the offence of 'punishment for conspiracy etc. to commit a terrorist act or any act preparatory to commit a terrorist act'. At this point, we would remind ourselves that 'terrorist act', including conspiracy and act preparat....
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....t result is not merely the physical and mental damage of the victim but the prolonged psychological effect it produces or has the potential of producing on the society as a whole ..." (emphasis supplied) 52. Furthermore, in PUCL (supra) the Hon'ble Supreme Court also observes that: "... Terrorist acts are meant to destabilise the nation by challenging its sovereignty and integrity, to raze the constitutional principles that we hold dear, to create a psyche of fear and anarchism among common people, to tear apart the secular fabric, to overthrow democratically elected government, to promote prejudice and bigotry, to demoralise the security forces, to thwart the economic progress and development and so on. This cannot be equated with a usual law and order problem within a State. On the other hand, it is inter-State, international or cross-border in character. Fight against the overt and covert acts of terrorism is not a regular criminal justice endeavour. Rather, it is defence of our nation and its citizens. It is a challenge to the whole nation and invisible force of Indianness that binds this great nation together..." (emphasis supplied) 53. Again, in Yakub Abdul Razak ....
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....pra) to the effect that when law visits a person with serious penal consequences, the courts must take extra care to ensure that those to whom the legislature did not intend to be covered by the express language of the statute "are not roped in by stretching the law". 56. It is therefore clearly the position in our jurisprudence that where a provision of law engrafting serious penal consequences is vague, such provision must be construed narrowly in order to bring it within the constitutional framework; and must be applied in a just and fair way, lest it unjustly ropes within its ambit persons whom the Legislature never intended to punish. Where the court finds that an act or omission is adequately addressed and dealt with by the ordinary penal law of the land, the court must not countenance a State agency 'crying wolf'. 57. In our opinion, the intent and purport of the Parliament in enacting the UAPA, and more specifically in amending it in 2004 and 2008 to bring terrorist activity within its scope, was, and could only have had been, to deal with matters of profound impact on the 'Defence of India', nothing more and nothing less. Absent this, UAPA could not have ....
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....st the CAA that would cause havoc amongst the ordinary citizenry; (d) The appellant is stated to be a member of the SIO and the JCC, admittedly neither of which is a banned organisation or terrorist organisation listed in the First Schedule to the UAPA. The JCC in fact is not even an organisation but only an inchoate committee, defined perhaps only by the WhatsApp group that it runs; (e) The common refrain running through the subject charge-sheet, as seen from the extracts cited and relied upon by the State, is that the appellant's co-conspirators directed and instructed him to do certain things, including to visit Muslim areas, coordinate with local Imams, and help in orchestrating the anti-CAA protests at various locations in Delhi; (f) There is no allegation in the subject charge-sheet that the anti-CAA protest extended even to the whole of the National Capital Territory of Delhi; and a perusal of the subject charge-sheet shows that the protest and the disruptions it is alleged to have caused were restricted to North-East Delhi. It would therefore be a stretch to say that the protest affected the community at large for it to qualify as an act of terror; (g) In fact, ....
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....ation stand on surer footing than to be likely to be shaken by a protest, however vicious, organised by a tribe of college students or other persons, operating as a coordination committee from the confines of a University situate in the heart of Delhi; (j) It has been a recurrent theme, repeatedly urged by the State, that what was contemplated and in fact brought to fruition was not a typical protest but an aggravated protest which was intended to disrupt the life of the community in Delhi. We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on any specific factual allegation and we are of the view that the mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince us otherwise. In fact, upon a closer scrutiny of the submissions made on behalf of the State, we find that the submissions are based upon inferences drawn by the prosecuting agency and not upon factual allegations; (k) It is the admitted position that the protest that is alleged to have been the culmination of the so-called conspiracy, in which inter alia the appellant participated, was neither banned nor outlawed. The protest was monitore....
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....; whereby, after appreciating the evidence adduced alongwith the charge-sheet, the Special Court had already determined that the accusations against the appellant therein were prima facie true; and the order framing charges was not under challenge before the High Court. 60. In this case, we find that the State's attempt to show that the accusations made against the appellant are prima facie true, does not commend itself for acceptance. 61. Once we are of the opinion, as we are in the present case, that there are no reasonable grounds for believing that the accusations against the appellant are prima facie true, the Proviso to section 43D(5) would not apply; and we must therefore fall back upon the general principles of grant or denial of bail to an accused person charged with certain offences. Right to Protest 62. Since this matter emanates from a protest organised by certain persons, which the State alleges, was no ordinary protest but one that has shaken or is likely to have shaken, the entire foundations of our Republic, we feel compelled to discuss what might be the permissible contours of a protest that would not threaten our nation. 63. In this context we examined, w....
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.... having turned non-peaceful are subject matter of F.I.R. No. 298/2019, in which the appellant is an accused and in which he has already been admitted to bail and will face trial in due course. There is absolutely nothing in the subject charge-sheet, by way of any specific or particularised allegation that would show the possible commission of a 'terrorist act' within the meaning of section 15 UAPA; or an act of 'raising funds' to commit a terrorist act under section 17; or an act of 'conspiracy' to commit or an 'act preparatory' to commit, a terrorist act within the meaning of section 18 UAPA. We are unable to discern in the subject charge-sheet the elemental factual ingredients that are a must to found the offences defined under section 15, 17 or 18 UAPA. 66. In our view, on an objective reading of the allegations contained in the subject charge-sheet, there is complete lack of any specific, particularised, factual allegations, that is to say allegations other than those sought to be spun by mere grandiloquence, contained in the subject charge-sheet that would make-out the ingredients of the offences under sections 15, 17 or 18 UAPA. Foisting extre....
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....der section 43D(5) UAPA do not apply; and the court may therefore fall back upon the usual and ordinary considerations for bail under the Cr.P.C. 69. In this behalf the submission made on behalf of the State, which we must address, is that the High Court while deciding an appeal under section 21 of the NIA Act must consider the grant or denial of bail only within the parameters of section 437 Cr.P.C. and not section 439 Cr.P.C. since the High Court is seized of an appeal arising from the Special Court, which (latter) has acted under section 437 Cr.P.C., since in dealing with a case under the UAPA, the Special Court is not a Court of Sessions. Although, the learned ASG contends that this is the principle laid down by the Hon'ble Supreme Court in Kartar Singh (supra), we are unable to find any precept to that effect laid down in Kartar Singh (supra). Moreover, to say that while considering a bail plea, even if in an appeal under section 21 of the NIA Act, the High Court would be constrained by the restrictive power for bail under section 437 Cr.P.C., in our view, does violence both to the express wording of section 437 Cr.P.C. as also to the wider powers of the High Court with r....
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.... (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." "9. In Chaman Lal v. State of U.P. (2004) 7 SCC 525 this Court while dealing with an application for bail has stated that certain factors are to be considered for grant of bail, they are: (SCC p. 525) "... (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge." "10. In Masroor v. State of U.P. (2009) 14 SCC 286, while giving emphasis to ascribing reasons for granting of bail, however, brief it may be....
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....nand, learned Chief Justice, in his concurring opinion, observed: (SCC pp. 429-30, para 24) "24. ... Bail is well understood in criminal jurisprudence and Chapter 33 of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word 'bail' is surety." (emphasis supplied) 72. In a recent decision in Sanjay Chandra vs. CBI (2012) 1 SCC 40 the Supreme Court has held that: "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless i....
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.... back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration." * * * * * "46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may j....
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....he appellant is said to be aged 74 years and is also said to be suffering from age related health problems. Considering the above factors and the facts and circumstances of the case, we are of the view that the appellant is entitled to be granted bail." (emphasis supplied) 74. Furthermore in P. Chidambaram vs. Directorate of Enforcement, the Supreme Court has explained the concept and application of 'gravity' of an offence in the following way: "12. .... The gravity can only beget the length of sentence provided in law and by asserting that the offence is grave, the grant of bail cannot be thwarted. The respondent cannot contend as if the appellant should remain in custody till the trial is over. * * * * * "23. .... Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the....
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.... bail unreasonable and a policy favouring release justly sensible." (emphasis supplied) Conclusions 77. Upon a conspectus of the general law relating to bail and applying these well-worn principles to the present case, in our view, though during trial the State will no doubt attempt to marshal evidence and make good the allegations made against the appellant, as we speak now these are mere allegations and, as discussed above, we are not convinced prima facie of the veracity of the allegations so made. Charge-sheet dated 16.09.2020 has already been filed in the matter. Some 740 witnesses have been cited in the subject charge-sheet. Trial is yet to commence. In view of the truncated functioning of courts by reason of the prevailing second wave of the COVID-19 pandemic, it is unlikely that trial will commence anytime soon. 78. That apart, the appellant has already been admitted to bail in case F.I.R. No. 298/2019 dated 16.12.2019 vide order dated 28.05.2020 made by the learned Sessions Court; and in our view there also appears to be an overlap between the so-called larger conspiracy, acts and omissions alleged against the appellant in the said other FIR and in the subject FIR fro....
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....e appellant shall not tamper with evidence nor otherwise indulge in any act or omission that is unlawful or that would prejudice the proceedings in the pending trial. 81. For clarity, this judgment supersedes the interim custody bail granted to the appellant vide order dated 04.06.2021. 82. Nothing in this order shall be construed as an expression on the merits of the pending trial. 83. A copy of this order be sent to the concerned Jail Superintendent. 84. The appeal stands disposed of in the above terms. 85. Pending applications, if any, are also disposed of. ANNEXURE-A COMPARISON TABLE OF PROVISIONS NDPS TADA MCOCA, 1999 POTA UAPA Narcotic Drugs and Psychotropic Substances Act, 1985 Terrorist and Disruptive Activities (Prevention) Act, 1987 Maharashtra Control of Organised Crime Act, 1999 Prevention of Terrorism Act, 2002 Unlawful Activities (Prevention) Act, 1967 S. 37(1) S. 20(8) S. 21(4) S. 49(6)-(7) S. 43-D(5) 37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 2....