TaxTMI 
TaxTMI 
2024 (3) TMI 175
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....25 and 54 of the Arms Act, 1959, which came to be rejected. 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 an....
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....gh (Accused No. 3) was dropped off mid-way at Jandialaguru while both, the present Appellant and Harpreet 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 V....
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....10. He further submitted that the Appellant-Accused along with co-Accused Bikramjit Singh @ Vicky (Accused No. 3) were involved in the activities 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 ....
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....gally except in very exceptional circumstances and for reasons to be recorded in writing. 16. The source of the power to grant bail in respect of non-bailable offences punishable with death or life imprisonment 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 a....
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....ring the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are prima facie true. It is only if the 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 re....
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....ry strong suspicion was founded upon the materials before the Court, which 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 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,....
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.... material, of the category used in the commission of the crime, which gave rise to the prosecution; was recovered from, or at the instance of the Accused; 4) Whether any eye witness or a mechanical device, such as CC camera, had indicated the involvement, or presence of the Accused, at or around the scene of occurrence; and 5) Whether the Accused was/were arrested, 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....
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....for life, and shall also be liable to fine. Section 18 of the UAP Act states: 18. Punishment for conspiracy, etc.-Whoever conspires or attempts to commit, or advocates, abets, advises or [incites, directly 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. 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....
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....t's counsel has relied upon the case of K.A. Najeeb (supra) to back its contention that the Appellant has been in jail for last five years which is contrary to law laid down in the said case. While this argument may appear compelling at first glance, it lacks depth and substance. In K.A. Najeeb's case this Court was confronted with a circumstance wherein except the Respondent-Accused, other co-Accused had already undergone trial and were sentenced to imprisonment of not exceeding eight years therefore this Court's decision to consider bail was grounded in the anticipation of the impending sentence that the Respondent-Accused might face upon conviction and since the Respondent-Accused had already served portion of the maximum imprisonment i.e., more than five years, this Court took it as a factor influencing its assessment to grant bail. Further, in K.A. Najeeb's case the trial of the Respondent-Accused was severed from the other co-Accused owing to his absconding and he was traced back in 2015 and was being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said Accused therefore this Court ....