AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2021 (10) TMI 1430
X X X X Extracts X X X X
X X X X Extracts X X X X
.... India Under Sub-section (4) of Section 21 of the National Investigation Agency Act, 2008 (for short "the NIA Act"). The appeals before the High Court arose out of the Order dated 9th September 2020, passed by the learned Judge of the Special Court appointed to conduct the trial of National Investigation Agency cases at Ernakulam in Kerala. By the said Order, the learned Judge of the Special Court For NIA Cases, granted bail to the Accused No. 1 Allen Shuaib and the Accused No. 2 Thwaha Fasal. 2. A First Information Report was registered against the Accused Nos. 1, 2 and 3 for the offences punishable Under Sections 20, 38 and 39 of Unlawful Activities (Prevention) Act, 1967 (for short "the 1967 Act"). The Offence was registered by Pantheerankavu Police Station in Kerala. Later on, the investigation of the case was transferred to National Investigation Agency (for short "NIA") established under the NIA Act. 3. The Accused No. 3 is absconding. On completion of investigation, a charge sheet was filed by NIA against the Accused Nos. 1 and 2. Offences punishable Under Sections 38 and 39 of the 1967 Act as well as Under Section 120-B of the Indian Penal Code (for short "IPC") were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stic file. Nine items were seized from the shoulder bag of the Accused No. 1. From the red plastic file of the Accused No. 2, two items were seized. The First Information Report was registered on the same day Under Sections 20, 38 and 39 of the 1967 Act alleging that the Accused Nos. 1 and 2 were the members of the Communist Party of India (Maoist) [for short "CPI (Maoist)"] which is a terrorist organisation within the meaning of Clause (m) of Section 2 of the 1967 Act which is listed at Item No. 34 in the First Schedule to the 1967 Act. By the order dated 18th April 2020, the Government of India granted sanction in exercise of powers Under Section 45 of the 1967 Act to prosecute the Accused No. 1 for offences punishable Under Sections 38 and 39 of the 1967 Act. Under the same order, a sanction to prosecute the Accused No. 2 for the offences punishable Under Sections 13, 38 and 39 of the 1967 Act was granted. As can be seen from the order dated 18th April 2020, NIA had recommended for grant of sanction under the aforesaid Sections. It is pointed out across the Bar by Shri S.V. Raju, the learned Additional Solicitor General of India (ASG) that the case is fixed for framing of charge....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ional sim cards, three memory cards and two pen drives were seized from the house of the Accused No. 2. (d) He submitted that even assuming that the Accused No. 2 was found in possession of various materials concerning the activities and meetings of the CPI (Maoist), Sections 38 and 39 are not attracted. He submitted that the offence Under Sub-section (1) of Section 38 can be made out if a person associates himself with a terrorist organisation with intention to further its activities. He submitted that similarly, an offence Under Section 39 is attracted only when the acts incorporated in Section 39 are committed with intention to further the activity of a terrorist organisation. He submitted that the charge sheet does not disclose any material to show that there was such an intention on the part of the Accused No. 2. (e) The learned Judge of the Special Court has taken into consideration each and every material incorporated against the Accused in the charge sheet and has concluded that the charge sheet does not make out a prima facie case of the Accused having intention to encourage, further, promote or facilitate the commission of terrorist activities. He submit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h Watali (2019) 5 SCC 1, the Accused No. 2 is entitled to bail. He submitted that stringent conditions were imposed by the Special Court while enlarging the Accused No. 2 on bail. (h) He submitted that immediately after cancellation of bail under the impugned Judgment and Order, the Accused No. 2 surrendered. He pointed out that the Accused No. 2 is in custody for more than 572 days. He pointed out that 92 witnesses have been cited in the charge sheet and even charge has not been framed by the Special Court. He submitted that the punishment imposed Under Sections 38 and 39 of the 1967 Act can extend to ten years or fine or with both. He submitted that considering the fact that charge is not yet framed and total 92 witnesses are to be examined, the trial is not likely to be completed in near future. He submitted that as FSL report is yet to be received, charge is not likely to be framed immediately. 6. Shri S.V. Raju, the learned Additional Solicitor General made the following submissions for opposing the appeal preferred by the Accused No. 2 and in support of the appeal preferred by the Union of India: (a) He submitted that Item No. 34 of Schedule 1 of the 1967....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... prosecuted Under Section 38 of the 1967 Act. He submitted that though Section 20 may not have been applied, in view of the decision of this Court in the case of the State of Gujarat v. Girish Radhakrishnan Varde (2014) 3 SCC 659, the Special Court can disagree with the police report and issue process for an offence which is not made out in the charge sheet. He submitted that even further investigation can be ordered by the Court. (f) He submitted that the prosecution can subsequently obtain the sanction to prosecute for the offence punishable Under Section 20 of the 1967 Act as well. He submitted that apart from the fact that the decision in the case of Arup Bhuyan (supra) has been referred to a larger Bench, the issue involved in the said case was in connection with Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short "TADA"). He submitted that the case of PUCL (supra), the challenge was to various provisions in POTA and not the 1967 Act. (g) He submitted that the High Court while confirming the order granting bail to the Accused No. 1 has completely disregarded Sub-section (5) of Section 43D of the 1967 Act. He submitted that the bail granted t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....21 of NIA Act, the Court cannot interfere with the order granting bail unless the order suffers from non-application of mind or is not borne out from a prima facie view of the evidence on record. He submitted that there is no possibility of Special Court framing charge as a report of FSL is not yet received. CONSIDERATION OF SUBMISSIONS 8. Clause (m) of Section 2 of the 1967 Act defines "terrorist organisation". It is defined as an organisation listed in the First Schedule. CPI (Maoist) has been listed at Item No. 34 in the First Schedule. Chapters III onwards of the 1967 Act incorporate various offences. Chapter III deals with unlawful associations and unlawful activities with which we are not concerned. Chapter IV has the title "punishment for terrorist act". Section 16 in Chapter IV prescribes the punishment for terrorist act. Clause (k) of Section 2 provides that "terrorist act" has the meaning assigned to it Under Section 15 which reads thus: 15. Terrorist act.-- [(1)] Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security [economic security] or sovereignty of India or with intent to strike terror or likely to strike te....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cond Schedule.] In this case, there is no allegation against the Accused Nos. 1 and 2 of committing any terrorists act. Chapter V contains provisions for forfeiture of proceeds of terrorism with which we are not concerned. 9. In these appeals, we are mainly concerned with the offences punishable Under Sections 20, 38 and 39 of the 1967 Act, which read thus: 20. Punishment for being member of terrorist gang or organisation.- Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine. 38. Offence relating to membership of a terrorist organisation.--(1) A person, who associates himself, or professes to be associated, with a terrorist organisation with intention to further its activities, commits an offence relating to membership of a terrorist organisation: Provided that this Sub-section shall not apply where the person charged is able to prove-- (a) that the organisation was not declared as a terrorist organisation at the time when he became a member or began to profe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tention to further its activities. In such a case, he commits an offence relating to membership of a terrorist organisation covered by Section 38. The person committing an offence Under Section 38 may be a member of a terrorist organization or he may not be a member. If the Accused is a member of terrorist organisation which indulges in terrorist act covered by Section 15, stringent offence Under Section 20 may be attracted. If the Accused is associated with a terrorist organisation, the offence punishable Under Section 38 relating to membership of a terrorist organisation is attracted only if he associates with terrorist organisation or professes to be associated with a terrorist organisation with intention to further its activities. The association must be with intention to further the activities of a terrorist organisation. The activity has to be in connection with terrorist act as defined in Section 15. Clause (b) of proviso to Sub-section (1) of Section 38 provides that if a person charged with the offence Under Sub-section (1) of Section 38 proves that he has not taken part in the activities of the organisation during the period in which the name of the organisation is includ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e gravity of offence committed Under Section 38 and/ or 39 and other relevant factors, the Accused can be let off even on fine. 15. The Accused No. 2 has been charged with the offence punishable Under Section 13, which reads thus: 13. Punishment for unlawful activities.--(1) Whoever-- (a) takes part in or commits, or (b) advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine. (2) Whoever, in any way, assists any unlawful activity of any association declared unlawful Under Section 3, after the notification by which it has been so declared has become effective Under Sub-section (3) of that section, shall be punishable with imprisonment for a term which may extend to five years, or with fine, or with both. (3) Nothing in this Section shall apply to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India. It is essentially an o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ich Sub-section (5) of Section 43D is applicable. In paragraph 23, this Court considered the difference in the language used by Section 37 of the NDPS Act governing grant of bail and Sub-section (5) of Section 43D of the 1967 Act. Paragraph 23 of the said decision reads thus: 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 accusation against the Accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the Accused is "not guilty" of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e. Further, the documents pressed into service by the investigating agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of the impugned judgment). Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded Under Section 164 Code of Criminal Procedure, on the specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge-sheet already filed against the Respondent is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the Accused concerned is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report Under Section 173 Code of Criminal Procedure.) and other material gathered by the investigating agency during investigation." (emphasis added....
X X X X Extracts X X X X
X X X X Extracts X X X X
....April 2020, NIA did not seek sanction for prosecuting any of the three Accused for the offence punishable Under Section 20. Sanction was sought to prosecute the Accused Nos. 1 and 2 for the offences punishable Under Sections 38 and 39. In addition, a sanction was sought to prosecute the Accused No. 2 Under Section 13. Paragraph 4 of the order refers to the authority appointed by the Central Government Under Sub-section (2) of Section 45 consisting of a retired Judge of a High Court and a retired Law Secretary, as well as the report submitted by the said authority. Paragraph 6 of the said order records prima facie satisfaction of the Central Government that a case is made out against the Accused under the provisions of the Act of 1967, as mentioned in letter dated 13th April 2020. Thus, as of today, sanction Under Sub-section (1) of Section 45 has not been accorded for prosecuting the Accused for the offence punishable Under Section 20 of the Act of 1967 and, therefore, as of today, the Special Court under NIA Act cannot take cognizance of the offence punishable Under Section 20. Therefore, for deciding the issue of prima facie case contemplated by Sub-section (5) of Section 43D, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd published by CPI (Maoist) with the intention of supporting the proscribed terrorist organisation and propagating its violent extremist ideology. 18.6 That, the Accused A-3, on seeing the Police party, had fled from the scene and managed to escape owing to his membership in the proscribed terrorist organisation CPI (Maoist). He is still absconding. 18.7 That, A-1 had knowingly and with the intention of aiding CPI (Maoist) possessed on his digital devices, materials supporting the proscribed terrorist organisation and its violent extremist ideology, for the purpose of spreading such ideology. 18.8 That, the materials found during the house search of A-2 such as notices, pamphlets, books, hand written notes, banners besides digital devices and publications were knowingly and intentionally possessed by A-2 for supporting the proscribed terrorist organisation CPI (Maoist). 18.9 That, in pursuance of the conspiracy to further the activities of CPI (Maoist), during the house search of A-2, he had, intentionally and knowingly, raised slogans, supporting the ideology of the proscribed terrorist organisation. 18.10 That, in furtherance of the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nts were found in the shoulder bag carried by him when he was apprehended. The said documents are under: 1. A notice in Malayalam titled Professor Madhava Gadgil Committee report nadappilakuka (Implement Professor Madhav Gadgil Report). 2. A notice in Malayalam tiled "Maoist Veetekkethire Janangal Rangathiranguka" (people should rise against Maoist Hunt) by Jogi, Spokesperson, CPI (Maoist), Paschima Ghatta Prathyka Meghala Committee" (Western Ghats Special Zonal Committee). 3. A notice in Malayalam titled "Puthiya Munnettangalkkayi Thayyaredukkuka, (Prepare for New Advancements) October 28, 29, 30 Wayanad Collectorattil Rappakal Maha Dharna" (Day and Night Maha Dharna at Wayanad Collectorate). 4. A hand written paper with scribble "Malabar Motham 17" and ending with word "student". 5. A handwritten paper with writings "Reporting -2" which ends as "Porayama Undakunnathu Swabhavikam" having four pages serial numbered from 1 to 4. 6. A spiral bound note pad of "SPIROPAD No. 4150 Janvi" with some writings in code language. 7. A letter pad having 06 pages and light blue colour cover page with writings "Vimarshana Swathatryam....
X X X X Extracts X X X X
X X X X Extracts X X X X
....roversial flats at Maradu). 12. Printed Notice having printing starts with "sakhakkalakk" (to comrades) and ends with "area committee" and A4 size notices with writings "Jammu Kashmirinmelulla Adhnivesham Avasanipikuka" (stop the control of Jammu and Kashmir) and ends with "Paschima Ghatta Prathyeka Mekhala Committee" (Western Ghats Special Zonal Committee (dated 2018 Aug 6-15 Nos., found kept inside a folded newspaper of Mathrubhumi daily dated 2019-Oct-4. 13. Two red colour Banners 180 cm x 87 cms with printing in Yellow colour "Jammu Kashmirinte Swanthanthra Poratathe Pinthunakkuka, Kashmiril Adhinivesha Vazhcha Nadathunna Indian Bharana Koodathe Cherukkuka, Bhrahmanya Hindutwa Fascist Bharana Varganthinethire Kalapam Cheyuka: CPI (Maoist)" (Support the freedom struggle of Jammu Kashmir, oppose the control of Indian Government at Jammu Kashmir, do struggle against Hindu Brahmin Fascist Government). 14. One laptop with charger, 15. Mobile phone with SIM, 16. Two additional SIM cards, 17. Three memory cards, 18. Two Pen Drives. 28. FSL report shows that the cell phone of the Accused No. 1 had a video clip with the t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d No. 2 for which the offence Under Section 13 has been applied of indulging in unlawful activities. As stated earlier, Sub-section (5) of Section 43D is not applicable to the offence Under Section 13. 34. Now the question is whether on the basis of the materials forming part of the charge sheet, there are reasonable grounds for believing that accusation of commission of offences Under Sections 38 and 39 against the Accused Nos. 1 and 2 is true. As held earlier, mere association with a terrorist organisation is not sufficient to attract Section 38 and mere support given to a terrorist organisation is not sufficient to attract Section 39. The association and the support have to be with intention of furthering the activities of a terrorist organisation. In a given case, such intention can be inferred from the overt acts or acts of active participation of the Accused in the activities of a terrorist organization which are borne out from the materials forming a part of charge sheet. At formative young age, the Accused Nos. 1 and 2 might have been fascinated by what is propagated by CPI (Maoist). Therefore, they may be in possession of various documents/books concerning CPI (Maoist) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ded a prima facie finding regarding the absence of any material to show intention on the part of the Accused to further the activities of CPI (Maoist). The High Court has not recorded prima facie finding on this aspect. By applying the law laid down in the case of Watali (supra), there were no reasonable grounds for believing that the accusations against the Accused Nos. 1 and 2 of commission of offences Under Sections 38 and 39 were prima facie true. 37. There are other relevant factors which need consideration. The Special Court while enlarging the Accused Nos. 1 and 2 on bail had imposed most stringent conditions, such as furnishing of bail bonds of Rs. One lakh with two sureties each for the like amount with further condition that one of the sureties shall be one of the parents of the Accused and the other surety, shall be a relative of the Accused. There was a condition imposed of marking attendance on every first Saturday of every month at local police station. There was also a condition imposed on the Accused of not associating in any manner or supporting in any manner activities of CPI (Maoist) and all its formations. The Accused Nos. 1 and 2 were directed to not leave t....