TaxTMI 
TaxTMI 
2021 (10) TMI 1430
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....stigation 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 alleged against the Accused No. 1. The same offences were alleged a....
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....d 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. However, it was also pointed out across the Bar that a report from ....
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....ed 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 submitted that there are no reasons assigned by the High Court to disturb the said prima facie finding. He relied ....
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.... 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 Act incorporates CPI (Maoist) in the list of terrorist organisations within the meaning of Clause (m) of Section 2 of the 1967 Act. He su....
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....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 to the Accused No. 1 has been confirmed by the High Court by ignoring Sub-section 5 of Section 43D. (h) He submitted that the Special Court has completely ignored the law laid dow....
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....hat 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 terror in the people or any Section of 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....
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....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 profess to be a member; and (b) that he has not taken part in the activities of the organisation at any time during its inclusion in the First Schedule as a terrorist organisation. (2) A person, who commits the offence relating to membership of a terrorist organisation Under Sub-section (1), shall be punishable with imprisonment for a t....
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..... 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 included in the First Schedule, the offence relating to the membership of a terrorist organisation Under Sub-section (1) of Section 38 will not be attracted. The aforesaid Clause (b) can be a defence of the Accused. However, while considering the prayer for grant of bail, we are not concerned with the defence of the Accused. 12. Section 39 deals with the offences relating to support given to a terrorist organisation. It covers t....
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.... 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 offence of committing unlawful activities as defined under Clause (o) of Section 2. The said offence has been alleged on the ground that two banners were found in the house of the Accused No. 2 which according to the prosecution invite public support to freedom movement of Jammu and Kashmir. Section 13 does not form a part of Chapter IV or VI. Hence, for consideration of grant of bail to a person Accused of an offence Under Section 13, stringent provisions of Sub-secti....
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....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 believing that the Accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, 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 first information report, must prevail until contradicted and overcome ....
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.... 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) 20. Therefore, while deciding a bail petition filed by an Accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the Court has to consider whether there are reasonable grounds for believing that the accusation against the Accused is prima facie true. If the Court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the Accused is prima facie true, then the Accused is entitled to bail. Thus, the scope o....
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....ort 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, the case against the both Accused only Under Sections 38 and 39 is required to be considered. In view of the absence of sanction and the fact that NIA did not even seek sanction for the offence punishable Under Section 20, a prima facie case of the Accused being involved in the said offence is not made out at this stage. As stated earlier, Sub-section (5) of Section 43D will not apply to Section 13, as Section 13 has been incorporated in Chapter III of the 1967 Act. 23. While we deal with the issue of grant of bail to the Accused....
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....ose 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 conspiracies with co-Accused and Ors., A-2 had knowingly and intentionally prepared cloth banners supporting secession of Kashmir from the Indian Union, for displaying at public places on behalf of CPI (Maoist) and thus committed unlawful activity as defined under the Unlawful Activities (Prevention) Act. 18.11 That A-1, knowingly and intentionally participated in the meetings of the proscribed terrorist organisation CPI (Maoist) with professional members including A-3 and had prepared notes that were maintained by A-1. 18.12 That, A-1 and A-3 knowingly and intentionally conspired and conduced secr....
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....y 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 Thiricchu Pidikkuka" (Regain Freedom to Criticize) "Swathatra Lokam 2017 Deshiya Seminar. 8. A monthly Magazine "Maruvakk Rastriya Samskarika Masika" of October 2019 Volume - 4, Edition-10 having 50 pages. 9. A pocket diary having 09 pages. From search of his house, a mobile phone was seized. 26. Two items were recovered from red file possessed by the Accused No. 2 when he was apprehended. Following two items were recovered from the red plastic file of the second Accused: A book with heading "Indiayile Jathiprasnam Nammude Kazhchapadu-May Dinam 2017" (Caste issues in India, our views-May day 2017)-published by Central Committee of CPI (Maoist). A book in Malayalam language with heading "S....
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....ntrol 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 title "Kashmir bleeding", as well as portraits of various communist revolutionary leaders, like Che Guvera and Mao Tse Tung, as also portrait of Geelani, a Kashmiri leader. Copies of certain posters were also found. Pdf files extracted showed that it contained material regarding abrogation of Article 370 of the Constitution and various other items. The photographs also showed that the Accused No. 1 attended protest gathering conducted in October 2019 by Kurdistan Solidarity Network. 29. As regards the Accused No. 2, on his devices, images of CPI (Maoist) flag, files relating to constitution of central committee of CPI (Maoist), files relating to CPI (Maoist) central committee programme, image of hanging Prime Minister, various newspaper cuttings relating to maoist incidents were found. A book was also seized relating to encounter with PLGA (Maoist) at Agali.....
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.... 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) in soft or hard form. Apart from the allegation that certain photographs showing that the Accused participated in a protest/gathering organised by an organisation allegedly linked with CPI (Maoist), prima facie there is no material in the charge sheet to project active participation of the Accused Nos. 1 and 2 in the activities of CPI (Maoist) from which even an inference can be drawn that there was an intention on their part of furthering the activities or terrorist acts of the terrorist organisation. An allegation is made that they were found in the company of the Accused No. 3 on 30th November, 2019. That itself may not be sufficient to infer the presence of intention. But that is not sufficient at this stage to draw an inference of presence of intention on their part which is an ingredient of Sections 38 and 39 of the 1967 Act. Apart from the fact that overt acts on....
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....on 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 territorial limits of the State of Kerala without permission of the Special Court. Moreover, SHO of the concerned police station was directed to monitor the activities of both the Accused. It is not the case of the prosecution that any conditions were breached by any of the Accused after they were enlarged on bail. 38. As held in the case of K.A. Najeeb (supra), the stringent restrictions imposed by Sub-section (5) of Section 43D, do not negate the power of Constitutional Court to grant bail keeping in mind violation of Part III of the Constitution. It is not disputed that the Accused No. 1 is taking treatment for a psychological disorder. The Accused No. 1 is a student of law. Moreover, 92 witnesses have been cited by the prosecution. Even assuming that some of the witnesses may be dropped at the time of trial, there is no possibility of the trial being concluded in a reason....