TaxTMI 
TaxTMI 
2023 (7) TMI 1384
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....r the Special Judge, Pune under the Unlawful Activities (Prevention) Act, 1967 ("1967 Act") had dismissed their bail plea. The decisions of the High Court were delivered on the same date i.e. 15th October 2019. 2. We shall deal with both the appeals in this judgment as the detention of the Appellants was on the basis of the same First Information Report ("FIR") and the chargesheet also contains the same Sections in respect of which offences are alleged to have been committed by them. These are Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B read with Section 34 of the Indian Penal Code, 1860 ("1860 Code") and Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act. Wherever there are distinguishing features vis-à-vis the individual Appellants in relation to the nature of evidence against them relied on by the Investigating Agency, we shall refer to them separately. In the subject-case, initially investigation was conducted by the regular law enforcement agency, being the State police. The Central Government, in exercise of their power Under Section 6(5) read with Section 8 of the National Investigation Agency Act, 2008 directed the National Investigation Agen....
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.... individuals as Accused. Among them were Sudhir Dhawale, Surendra Gadling, Shoma Sen, Mahesh Raut and Rona Wilson, who were in detention at that point of time. Rest five Accused persons were absconding at that point of time. We are informed by Mr. Nataraj that one of the absconding Accused, Milind Teltumbde, has since passed away. 4. Searches were conducted at the residences/workplaces of the Appellants and they were arrested on the same day, i.e. on 28th August 2018. They were initially put under house arrest and subsequently sent to judicial custody. Case of the NIA is that various letters and other materials recovered from the arrested co-Accused persons including Surendra Gadling and Rona Wilson showed Appellants' involvement with the Communist Party of India (Maoist). This organisation has been placed in the First Schedule to the 1967 Act as a terrorist organisation by a notification dated 22nd June 2009 issued in terms of Section 2(m) of the 1967 Act. Prosecution's case is that the Appellants played an active role in recruitment of and training for cadres of the said organisation and Arun Ferreira (whom we shall refer to henceforth as AF), being the Appellant in Cr....
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....ght for staying any arrest until the matter was fully investigated and decided by this Court. That writ petition was dismissed on 28th September 2018 (by a 2:1 majority). The majority view was that it was not a case of arrest because of expression of mere dissenting views or difference in political ideology of the named Accused, but concerning their links with the members of the banned organisation. At that stage, the Court did not go into an exercise of evaluating the materials brought before it. This finding or observation, however, cannot aid the prosecution in a regular application for bail, the appeals in respect of which we are adjudicating. The Court deciding on specific plea of the Appellants for bail is required to independently apply its mind and examine the materials placed before it for determining the question of granting bail to the individual applicants. 6. As the charges against the Appellants include commission of offences under different Sections of the 1967 Act, including those coming within Chapters IV and VI thereof, the restriction on grant of bail as contained in Section 43D(5) of the said Act would apply in their cases. We shall also refer to the ratio of....
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.... State of Assam and Anr. [2023 SCC OnLine SC 338] has held that if a person, even after an organisation is declared as an unlawful association, continues to be a member thereof, would attract penalty Under Section 10 of the 1967 Act. 9. Barring Section 13, all the offences with which the Appellants have been charged with under the 1967 Act fall within Chapters IV and VI of the said statute. This is apart from the offences under the 1860 Code. Hence, there is a duty of the Court to form an opinion on perusal of the case diary or the report made Under Section 173 of the Code of Criminal Procedure, 1973 ("1973 Code") that there are reasonable grounds for believing that the accusations against such persons are prima facie true while considering the prayer for bail, to reject prayers for bail of the Appellants. The manner in which the Court shall form such opinion has been laid down by this Court in the case of National Investigation Agency vs. Zahoor Ahmad Shah Watali (2019) 5 SCC 1. It has been held in this judgment: 23. By virtue of the proviso to Sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusati....
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....t to grant bail. In paras 36 to 38, the Court observed thus: (SCC pp. 316-17) 36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the Accused is enlarged on bail, he would not commit any offence whatsoever? 37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose. 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. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. ... What wo....
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.... arrive at a finding that the materials collected against the Accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby. 47. In Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528 : 2004 SCC (Cri) 1977] this Court observed: (SCC pp. 537-38, para 18) 18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court considering a bail application. Still one should not forget, as observed by this Court in Puran v. Rambilas [(2001) 6 SCC 338 : 2001 SCC (Cri) 1124]: (SCC p. 344, para 8) 8. ...Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. ... That did not mean that whilst granting bail some reasons for prima facie con....
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....(1962) 1 Cri LJ 215] and Gurcharan Singh v. State (UT of Delhi) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41] and basically they are - the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the Accused; a reasonable possibility of the presence of the Accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.' 10. We shall first deal with the argument of the Appellants that the accusations against the Appellants under the Sections which fall within Chapters IV and VI of the 1967 Act cannot lead to a prima facie satisfaction of the Court that such accusations are true and the available evidences at this stage do not fit the ingredients of these restrictive provisions. The nature of the accusations to invoke the bail-restricting Clause has been stated in the supplementary chargesheet in which the Appellants were implicated. The counter-affidavits also contain printouts/copies of several letters and documents. In the case of VG, the Agency has relied upon t....
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....apons 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 (iiia) 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 public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and ....
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.... (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. 18A. Punishment for organising of terrorist camps.--Whoever organises or causes to be organised any camp or camps for imparting training in terrorism 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. 18B. Punis....
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....with the terrorist organisation; or (c) who, with intention to further the activity of a terrorist organisation, addresses a meeting for the purpose of encouraging support for the terrorist organisation or to further its activity. (2) A person, who commits the offence relating to support given to a terrorist organisation Under Sub-section (1) shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both. 40. Offence of raising fund for a terrorist organisation.-(1) A person commits the offence of raising fund for a terrorist organisation, who, with intention to further the activity of a terrorist organisation,- (a) invites another person to provide money or other property, and intends that it should be used, or has reasonable cause to suspect that it might be used, for the purposes of terrorism; or (b) receives money or other property, and intends that it should be used, or has reasonable cause to suspect that it might be used, for the purposes of terrorism; or (c) provides money or other property, and knows, or has reasonable cause to suspect, that it would or might be used for the purpose....
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.... Government" shall be construed as a reference to "the Central Government or the State Government."; (ii) to "order of the State Government" shall be construed as a reference to "order of the Central Government or the State Government, as the case may be"; and (b) the reference in Sub-section (2) thereof, to 'the State Government" shall be construed as a reference to "the Central Government or the State Government, as the case may be". (4) Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person Accused of having committed an offence punishable under this Act. (5) Notwithstanding anything contained in the Code, no person Accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such Accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made Under Section 173 of the Code is of the opinion that there are reasonable grounds fo....
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....nced by the Hon'ble Court of Session, Nagpur in C.R. No. 10/2007 offence Under Section 10, 13, 16, 17, 18, 20, 23, 40(2) Unlawful Activities (Prevention) Act, 25(1-B) Arms Act, 6, 9(b) Explosives Act, 4(b), 5 Explosive Substances act 120-B, 121-A Indian Penal Code of A.T.S. Kala Chowky Police Station, Mumbai. He has accordingly served the sentence. Accused Vernon Gonsalves Unlawful Activities as member of banned organization have been going on continuously. 17.11 During investigation of the said crime it has emerged that I.A.P.L (Indian Association of People's Lawyers) is a frontal organization of the banned organization C.P.I (Maoist) and is working according to the organization's direction and orders and with its economic backing to fulfill the objectives of the banned organization. Accused No. 3 Arun Ferreira, No. 4 Sudha Bharadwaj and Surendra Gadling are members of the said frontal organization. They along with other Accused have made conscious attempts to spread this frontal organization. By doing various unlawful activities through the medium of this frontal organization they have endangered the stability of the country. 17.15. Thus Accused Nos.....
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.... the said organisation. It also emerged that they attempted in different ways to do acts against the country to overthrow the democratic and lawful administrative system through the medium of frontal organisations established on behalf of the banned organisation in urban areas. (quoted verbatim from paperbook) 13. In the first statement, the protected witness who appears to have had been associated with Maoist movement claims to have met VG in the year 2002 as we have already indicated. He has spoken of a timeline between 2002 to 2007. According to him, at that time VG and AF were members of the Maharashtra State Committee, presumably of CPI (Maoist) organisation. This statement was recorded on 27th January 2019 by an Assistant Commissioner of Pune Police. The protected witness has made another statement on 27th July 2020 before the police in which he has referred to participation of AF in a seminar of Revolutionary Democratic Front in Hyderabad in the year 2012 and VG in September 2017 by an organisation referred to as "Virasam". These were also broadly repeated in his statement before a Magistrate recorded Under Section 164 of the 1973 Code on 28th July 2020. The pros....
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....on for bail, we must point out, this exercise of analysis of evidence would not have been necessary. But in view of the restrictive provisions of Section 43D of the 1967 Act, some element of evidence-analysis becomes inevitable. 16. The High Court in dealing with both these appeals had opined that the Investigating Agency had materials which prima facie showed that the applicants were part of a larger conspiracy attracting the offences contained in Sections 121A, 117 and 120B of the 1860 Code as well as Section 18 of the 1967 Act against them. The High Court had invoked the allegations of recruiting cadres for the banned organisation, to import the provisions of Section 18B of the 1967 Act. It further invoked Section 20 of the same statute on the ground that the Appellants had been active members of the banned organisation. In the same way, the view of the High Court was that Sections 38 and 39 of the 1967 Act were attracted against the Appellants. The High Court found that there were sufficient materials in the chargesheet against the Appellants and there were reasonable grounds to believe that the accusation of commission of offences punishable under Chapters IV and VI of the ....
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....in motivating research scholars to get them involved in the revolutionary movement. About VG, it is recorded that one "Comrade G" has been asked to arrange APT to meet with Vernon. 20. As regards AF, his name appears in an undated letter, marked as Annexure "R-4", addressed to Surendra by Darsu, which refers to organisation of a joint meeting by the addressee and Arun in Hyderabad. The next letter is purported to have been written to Prakash by Surendra on 5th November 2017 and is marked as Annexure "R-5". It refers to establishing Indian Association of People's Lawyer ("IAPL") in Kerala for which discussion was held with Arun. According to the Agency, IAPL - a lawyer's body is a frontal organisation of the banned organisation. This communication records a proposed visit to Kerala on International Human Rights Day by AF and the author thereof. This is followed by a further communication from Prakash to Surendra dated 16th July 2017 ("R-7"). This letter records a proposed visit of Arun to Chennai in connection with release of a detained party member as also raising of funds for the legal defence of detained persons. Here also, there is appreciation of AF and VG's work....
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....e case of Dr. Anand Teltumbde v. National Investigation Agency and Anr. [2022 SCC OnLine Bom 5174] allegations were similar in nature against the Petitioner therein. He was charged with all the Sections of the 1967 Act as has been done in the cases of AF and VG except Section 40. The Bombay High Court by a judgment delivered on 18th November 2022 had enlarged him on bail. The NIA's petition for special leave to appeal [SLP(Crl.) No. 11345/2022] against that judgment was dismissed by a Coordinate Bench of this Court on 25th November 2022. 24. As it would be evident from the analysis of the evidence cited by the NIA, the acts allegedly committed by the Appellants can be categorised under three heads. The first is their association with a terrorist organisation which the prosecution claims from the letters and witness statements, particulars of which we have given above. But what we must be conscious of, while dealing with prima facie worth of these statements and documents is that none of them had been seized or recovered from the Appellants but these recoveries are alleged to have been made from the co-Accused. The second head of alleged offensive acts of the Appellants is ke....
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....give hint of propagation of such activities. But there is nothing against the Appellants to prima facie establish that they had indulged in the activities which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts by the Appellants to do so. Neither there is allegation against them of causing death of any public functionary or attempt to cause death of such functionary. Mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of Section 15(1)(b) of the said Act. Thus, prima facie, in our opinion, we cannot reasonably come to a finding that any case against the Appellants Under Section 15(1) (b) of 1967 Act can be held to be true. 27. Section 17 of the 1967 Act deals with punishment for raising funds for terrorist acts. Here also the funds, dealing with which has been attributed to AF, cannot be connected to any terrorist act. In the case of Dr. Anand Teltumbde (supra) the same account statement was referred to. In respect of such allegations against Dr. Anand Teltumbde the Bombay High Court came to the following finding: 42. Mr. Patil has....
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....there are reasonable grounds for believing that the accusation against the Appellant of committing or conspiring to commit terrorist act is prima facie true. The witness statements do not refer to any terrorist act alleged to have been committed by the Appellants. The copies of the letters in which the Appellants or any one of them have been referred, record only third-party response or reaction of the Appellants' activities contained in communications among different individuals. These have not been recovered from the Appellants. Hence, these communications or content thereof have weak probative value or quality. That being the position, neither the provisions of Section 18 nor 18B can be invoked against the Appellants, prima facie, at this stage. The association of the Appellants with the activities of the designated terrorist organisation is sought to be established through third party communications. Moreover, actual involvement of the Appellants in any terrorist act has not surfaced from any of these communications. Nor there is any credible case of conspiracy to commit offences enumerated under chapters IV and VI of the 1967 Act. Mere participation in seminars by itself c....
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....rorist act" as defined Under Section 2(k) of the 1967 Act carries the meaning assigned to it in Section 15. This Section also stipulates that the expressions "terrorism" and "terrorist" shall be construed accordingly. This implies construction of these two expressions in the same way as has been done in Section 15. "terrorist organisation" has been independently defined in Section 2(m) to mean an organisation listed in the First Schedule or an organisation operating under the same name as an organisation so listed. But so far as the word "terrorist" is concerned, in this Section also, the interpretation thereof would be relatable to the same expression as used in Section 15. It is one of the basic Rules of statutory construction that an expression used in different parts of a statute shall ordinarily convey the same meaning - unless contrary intention appears from different parts of the same enactment itself. We do not find any such contrary intention in the 1967 Act. 33. Section 38 of the 1967 Act carries the heading or title "offence relating to membership of a terrorist organisation". As we have already observed, a terrorist act would have to be construed having rega....
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....care taken to see that the offence would fall within the four corners of the Act. Though these judgments were delivered while testing similar rigorous provisions under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the same principle would apply in respect of the 1967 Act as well. 36. In the case of Zahoor Ahmad Shah Watali (supra), it has been held that the expression "prima facie true" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the Accused concerned in the chargesheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such Accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the Accused ought to prevail. In our opinion, however, it would not satisfy the prima facie "test" unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth. In the case of the Appellants, contents of the letters through which the Appel....
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.... to commit any offence while on bail. Here, we have to satisfy ourselves that the specified offences alleged to have been committed by the Appellants cannot be held to be prima facie true. 41. We shall now turn to the other offence under the 1967 Act, which is Under Section 13 thereof, and the 1860 Code offences. The yardstick for justifying the Appellants' plea for bail is lighter in this context. The Appellants are almost five years in detention. In the cases of K.A. Najeeb (supra) and Angela Harish Sontakke (supra), delay of trial was considered to be a relevant factor while examining the plea for bail of the Accused. In the case of K.A. Najeeb (supra), in particular, this same provision, that is Section 43D(5) was involved. 42. In these two proceedings, the Appellants have not crossed, as undertrials, a substantial term of the sentence that may have been ultimately imposed against them if the prosecution could establish the charges against them. But the fundamental proposition of law laid down in K.A. Najeeb (supra), that a bail-restricting Clause cannot denude the jurisdiction of a Constitutional Court in testing if continued detention in a given case would breach th....
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.... fit and proper, if the Appellants or any one of them are not wanted in respect of any other case. The conditions to be imposed by the Special Court shall include: (a) Vernon Gonsalves, Appellant in Criminal Appeal No. 639 of 2023 and Arun Ferreira, Appellant in Criminal Appeal No. 640 of 2023, upon being enlarged on bail shall not leave the State of Maharashtra without obtaining permission from the Trial Court. (b) Both the Appellants shall surrender their passports, if they possess so, during the period they remain on bail with the Investigating Officer of the NIA. (c) Both the Appellants shall inform the Investigating Officer of the NIA, the addresses they shall reside in. (d) Both the Appellants shall use only one Mobile Phone each, during the time they remain on bail and shall inform the Investigating Officer of the NIA, their respective mobile numbers. (e) Both the Appellants shall also ensure that their Mobile Phones remain active and charged round the clock so that they remain constantly accessible throughout the period they remain on bail. (f) During this period, that is the period during which they remain on bail, both....