TaxTMI 
TaxTMI 
2024 (3) TMI 175
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..... 3. The factual matrix relevant to dispose the present petition are summarized as under: 3.1 On 19.10.2018, Sh. Varinder Kumar, Inspector, CIA Staff, received secret information that two persons are hanging cloth banners on which "Khalistan Jindabad" and "Khalistan Referendum 2020", was written, at Pillars Kot Mit Singh Flyover, Amritsar. The Police team apprehended one Sukhraj Singh @ Raju and Malkeet Singh @ Meetu on the spot and a case was registered vide FIR No. 152 dated 19.10.2018 Under Section(s) 124A, 153A, 153B and 120B of Indian Penal Code against both the arrested Accused. During the course of Investigation, entire module of the banned terrorist organization named "Sikh for Justice" was busted and other Accused persons involved in the said module namely, Bikramjit Singh @ Vicky, Manjit Singh @ Manga, Jatinder Singh @ Goldy, Harpreet Singh @ Happy, Gurwinder Singh @ Gurpreet Singh @ Gopi-the present Appellant, Harmeet Singh @ Raju, Roofel @ Raful @ Rahul Gill, Sukhmander Singh @ Gopi and Kuldeep Singh @ Kuldip Singh @ Keepa were arrested by Punjab Police. 3.2 The investigation was completed and final report was presented on 16.04.2019 before the Trial Court against ....
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....eet Singh @ Happy, returned back to their village in Punjab. 3.7 The Appellant's disclosure statement recorded on 12.06.2020 revealed a similar story as that of Bikramjit Singh. The Appellant stated that he and Harpreet Singh were childhood friends. In the 1st week of July 2018, Harpreet proposed to visit Srinagar for Religious Service and asked the Appellant to accompany. The Appellant in his disclosure statement further stated that he initially denied to go with them however later agreed to accompany them when Harpreet Singh continuously insisted him. 3.8 The trial court vide its order dated 16.12.2023 in CIS No. BA/2445/2021 dismissed the Appellant's bail application Under Section 439 Code of Criminal Procedure on the ground that there were reasonable grounds to believe the accusation against the Appellant to be true. The said order was impugned by way of an appeal before the High Court of Punjab and Haryana and meanwhile on 10.04.2023, 4th supplementary charge sheet was filed by NIA along with the List of witnesses and list of documents. 3.9 Vide the Impugned order the High Court rejected the grant of bail to Appellant on the ground of seriousness of the nature of....
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....vities of "Sikhs for Justice", a banded terrorist organisation, whose chief proponent is Gurpatwant Singh Pannu (Accused No. 12) and Bikramjit Singh @ Vicky (Accused No. 3) had asked their known persons to arrange weapons from Kashmir. In furtherance of their activities to procure arms and ammunition, the Appellant-Accused along with co-Accused Bikramjit Singh @ Vicky and Harpreet Singh @ Happy (Accused No. 7) had visited Srinagar. 11. He further submitted that Appellant in his voluntary disclosure statement admitted that on gaining knowledge of purpose of visit to Srinagar, he voluntarily continued the journey. In fact, the Appellant suggested an alternative to the co-Accused and advised them to procure the weapon from Western Uttar Pradesh. 12. Further, he submitted that the provisions of Section 43D(5) of Unlawful Activities (Prevention) Act, 1967 are completely applicable in this case and as such the High court has rightly denied bail to the Appellant- Accused. 13. He also contended that the case is presently under trial and so far 22 witnesses have been examined. The Accused is facing charges of grave nature pertaining to crimes that are not attributable to an individual bu....
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....sonment emanates from Section 439 Code of Criminal Procedure. It can be noticed that Section 43D(5) of the UAP Act modifies the application of the general bail provisions in respect of offences punishable under Chapter IV and Chapter VI of the UAP Act. 17. A bare reading of Sub-section (5) of Section 43D shows that apart from the fact that Sub-section (5) bars a Special Court from releasing an Accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an Accused on bail, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an Accused on bail. It lays down that if the Court, 'on perusal of the case diary or the report made Under Section 173 of the Code of Criminal Procedure', is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such Accused person shall not be released on bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other....
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....test for rejection of bail is not satisfied - that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence). This position is made clear by Sub-section (6) of Section 43D, which lays down that the restrictions, on granting of bail specified in Sub-section (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail. 21. On a textual reading of Section 43D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test: 1) Whether the test for rejection of the bail is satisfied? 1.1 Examine if, prima facie, the alleged 'accusations' make out an offence under Chapter IV or VI of the UAP Act 1.2 Such examination should be limited to case diary and final report submitted Under Section 173 Code of Criminal Procedure; 2) Whether the Accused deserves to be enlarged on bail in light of the general principles relating to grant of bail Under Section 439 Code of Criminal Procedure ('tripod test....
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....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 Code of Criminal Procedure), 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. * Reasoning, necessary but no detailed evaluation of evidence [para 24]: 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. * Record a finding on broad probabilities, not based on proof beyond doubt [para 24]: "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." * Duration of the limitation Under Section 43D(5) [para 26]: The special provisi....
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....sted, soon after the occurrence, on the basis of the information, or clues available with the enforcement or investigating agencies. 25. In the case of Kekhriesatuo Tep and Ors. v. National Investigation Agency 2023:INSC:362 : (2023) 6 SCC 58 the Two-Judge Bench (Justice B.R. Gavai & Justice Sanjay Karol) while dealing with the bail application for the offence of supporting and raising funds for terrorist organization Under Section 39 and 40 of the UAP Act relied upon NIA v. Zahoor Ahmad Shah Watali 2019:INSC:456 : (2019) 5 SCC 1 and observed that: while dealing with the bail petition filed by the Accused against whom offences under chapter IV and VI of UAPA have been made, the court has to consider as to whether there are reasonable grounds for believing that the accusation against the Accused is prima facie true. The bench also observed that distinction between the words "not guilty" as used in TADA, MCOCA and NDPS Act as against the words "prima facie" in the UAPA as held in Watali's Case (supra) to state that a degree of satisfaction required in the case of "not guilty" is much stronger than the satisfaction required in a case where the words used are "prima facie" 26. ....
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....five years but which may extend to imprisonment for life, and shall also be liable to fine. Section 19 of the UAP Act states: 19. Punishment for harbouring, etc.-Whoever voluntarily harbours or conceals, or attempts to harbour or conceal any person knowing that such person is a terrorist shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and shall also be liable to fine: Provided that this Section shall not apply to any case in which the harbour or concealment is by the spouse of the offender. 28. Having examined the provisions of law, let us now consider the material available on record to ascertain whether the case of the Appellant satisfies the tests as mentioned herein above. 29. The Appellant's counsel contended that the Appellant's mobile phone has not undergone scrutiny, and therefore, no conclusive connection to the charged offenses could be established. However, the scrutiny report of Bikramjit Singh @ Vicky's (Accused No. 3) mobile phone, marked as M-5 reveals at serial No. 10, that the present Appellant was in communication with Accused No. 3 multiple times. The Call De....