TMI Blog2023 (7) TMI 1384X X X X Extracts X X X X X X X X Extracts X X X X ..... rima 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 cannot constitute an offence under the bail-restricting Sections of the 1967 Act, with which they have been charged. To bring the Appellants within the fold of Section 38 of the 1967 Act, the prosecution ought to have prima facie establish their association with intention to further the said organisation's terrorist activities. It is only when such intention to further the terrorist activities is established prima facie, Appellants could be brought within the fold of the offence relating to membership of a terrorist organisation. To bring within the scope of Section 38 of the 1967 Act, it would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organisation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e distinguishing features vis- -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 Agency ( NIA ) to take up investigation of the case by an order passed on 24th January 2020. The case was re-registered at the NIA Police Station, Mumbai as RC No. 01/2020/NIA/MUM. Before us, the appeals have been contested by Mr. Nataraj, learned Additional Solicitor General, appearing for the NIA. 3. The proceedings against the Appellants have their origin in an FIR, bearing CR No. 4/2018 dated 8th January 2018 registered with Vishrambaug Police Station, Pune, Maharashtra. The informant is one Tushar Ramesh Damgude. The incident which prompted filing of the FIR was in relation to a programme at Shaniwar Wada, Pune held on 31st December 2017. The organisers for this event-Elgar Parishad, were activists of Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants' 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 Criminal Appeal No. 640 of 2023 also had role in managing finances of that organisation. The other Accused persons who were detained in the third phase were P. Varavara Rao and Sudha Bharadwaj. Among them, we are apprised by the learned Senior Counsel for the Appellants, Ms. Rebecca John appearing for Vernon Gonsalves (VG in short), being the Appellant in Criminal Appeal No. 639 of 2023 and Mr. R. Basant (representing AF) that, P. Varavara Rao has been enlarged on bail by an order of this Court passed on 10th August 2022. Sudha Bharadwaj is on default bail granted by the Bombay High Court on 1st September 2021. Petition for special leave to appeal against that order was rejected by a three-Judge Bench of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired 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 the judgment of a three-Judge Bench of this Court in the case of Union of India v. K.A. Najeeb (2021) 3 SCC 713 while examining the Appellants' cases in the backdrop of the aforesaid provision. In this judgment, it has been held that such statutory restrictions, per se, do not oust the jurisdiction of the Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution of India and it would be within the jurisdiction of the Constitutional Courts, i.e., this Court and the High Courts to relax the rigours of such provisions, where there is no likelihood of trial being completed within a reasonable time and the period of incarceration a detenue has already undergone, covers a substantial pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 would further be necessary on the part of the court is to see the culpability of the Accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. And again in paras 44 to 48, the Court observed: (SCC pp. 318-20) 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) 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 concluding why bail was being granted did not have to be indicated. We respectfully agree with the above dictum of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. Therefore, we are not in agreement with the argument addressed by the learned Counsel for the Accused that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the Respondent was enlarged on bail had turned hostile and there are complaints ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the statement of a protected witness who has disclosed that he had met VG in the year 2002. Referring to a time-length between 2002 and 2007, he has stated that during that period, both VG and AF were members of the Maharashtra State Committee of the said party. It is also stated by the protected witness that, in 2002 VG wanted to resign from the party but his resignation was not accepted. 11. Before embarking on this exercise, we reproduce below the following provisions of the 1967 Act, the application of which we shall have to examine in respect of the Appellants: 2. Definitions.-(1) In this Act, unless the context otherwise requires,- xxxxxxxxxxx (k) terrorist act has the meaning assigned to it in Section 15, and the expressions terrorism and terrorist shall be construed accordingly; xxxxxxxxxxx (m) terrorist organisation means an organisation listed in the [Firs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uses death of any public functionary or attempts to cause death of any public functionary; or (c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or [an international or inter-governmental organisation or any other person to do or abstain from doing any act; or] commits a terrorist act. [Explanation.-For the purpose of this Sub-section,- (a) public functionary means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary; (b) high quality counterfeit Indian currency means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates or compromises with the key security features as specified in the Third Schedule.] (2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule. 16. Punishment for terrorist act.-(1) Whoever commits a terrorist act shall,- (a) if such act has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18B. Punishment for recruiting of any person or persons for terrorist act.-Whoever recruits or causes to be recruited any person or persons for 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e available, whether or not for consideration; or (b) raising, collecting or providing funds through production or smuggling or circulation of high quality counterfeit Indian currency. (2) A person, who commits the offence of raising fund for a terrorist organisation Under Sub-section (1), shall be punishable with imprisonment for a term not exceeding fourteen years, or with fine, or with both. 43D. Modified application of certain provisions of the Code.--(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of Clause (c) of Section 2 of the Code, and cognizable case as defined in that Clause shall be construed accordingly. (2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in Sub-section (2),-- (a) the references to fifteen days , ninety days and sixty days , wherever they occur, shall be construed as references to thirty days , ninety days and ninety days respectively; and (b) after the proviso, the following provisos shall be inserted, namely: Provided further that if it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to a person Accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing. 12. Allegations against these two Appellants appear, inter-alia, from paragraphs 17.5, 17.9, 17.10, 17.11, 17.15, 17.18 and 17.19 of the first supplementary chargesheet. These paragraphs from the chargesheet dated 21st February 2019 are quoted below: 17.5 During the investigation of this crime it emerged that the activity of the Accused in this was not limited to only creating antagonism between two Sections but they were also doing other destructive acts against the country. Accused Sudhir Dhawale, Rona Wilson, Surendra Gadling, Mahesh Raut and Shoma sen had done unlawful and terrorist acts in accordance with a pre-planned plot by and on behalf of the banned organization C.P.I (Maoist), a large country wide conspiracy to overthrow through force of violence the constitutionality established democracy and administrative system in the country. It has also emerged that the present crime is also one part of this conspiracy. Since the participation of Accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kala Manch, Persecuted Prisoners Solidarity Committee (P.P.S.C) are set up or similar organizations are infiltrated in as systematic manner and under their cover the work related to the terrorist organization C.P.I (Maoist) is being accomplished is an extremely secret manner. 17.18. During the Investigation it has emerged that the Accused No. 01 to 04 in this offence and other Accused have worked as part of a pre-planned conspiracy devised by the banned organisation C.P.I. (Maoist), a large, countrywide plot and conspiracy to overthrow by force of violence the democratic administrative system established under the country's constitution. It emerged that the organisation C.P.I. (Maoist) and the members of the organisation in this offence have hatched the conspiracy of this offence. 17.19. Accused No. 1 in the said offence Varavara Rao, Accused Rona Wilson and Surendra Gadling along with the Polit Bureau and Central Committee and other underground members of the banned terrorist organisation C.P.I.(Maoist) hatched a criminal conspiracy and obtained the participation of the Accused No. 02 Vernon Gonsalves, Accused No. 3 Arun Ferreira and Accused No. 04 Sudha Bharadwaj in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o forests. He also claims to have met AF in the 2003-2007 phase. The third witness, whose statements have also been relied upon by the prosecution agency is one Sudarshan Satyadeo Ramteke. He has referred to another Arun (Arun Bhelke) in his statement, whom he had met while working for an organisation in Chandrapur. He also declared himself as a party associate in his statement, and claims to have had been introduced to AF by another person. He has alleged that AF, Milind Teltumbde and Anil Nagpure had asked him to work with the said organisation. 14. VG has been earlier implicated in 19 cases for alleged crimes under the 1967 Act, the Arms Act 1959, and the Explosives Act 1884. But it has been submitted before us on his behalf that he has been acquitted in 17 out of these 19 cases. In respect of another case, his discharge application is pending. He was convicted in Case No. 257/11 by the Sessions Judge, Nagpur Under Section 25(1B) of the Arms Act 1959, Sections 10(a)(i) and 13(1)(b) of the 1967 Act. There were charges against him also Under Section 9(B) of the Explosives Act 1884, Sections 4(b) and 5 of the Explosives Substances Act, 1908 and Sections 10(a)(ii)(iii)(iv), 10(b), 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of searches. The other set of documents on which the NIA has placed reliance, are literatures, pamphlets etc. some of which are meant to have been recovered from the residences of the Appellants themselves. So far as the aforesaid letters are concerned, copies thereof have been annexed to the courter-affidavits of the NIA filed in connection with both the appeals. We shall refer to them in this judgment in the way they have been described numerically as annexures in NIA's counter-affidavit in the appeal of AF. The first document is an undated letter addressed to Surendra, from an unnamed sender, marked as Annexure R-6 . This letter is claimed to have been recovered from the computer of one of the co-Accused and refers to Radical Student Union initiative by AF and VG. This letter requests the addressee to ask Arun to manage finances for legal defence of one Murgan. There is further reference to two other individuals who apparently have been inspired by the struggles of AF and VG. 18. The second document is a letter dated 18th April 2017, marked as Annexure R-10 , addressed to one Comrade Prakash and is claimed to have been written by R . Prosecution claims R is Rona Wilso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mrades of various associations, including the Appellant, Arun. 21. There is also a reference to an account statement alleged by the prosecution to have been recovered from the laptop of Rona Wilson (Annexure R-3 ). We reproduce below this statement in the same form as it has been represented in the said Annexure: Surendra=R=2.5L from Milind Shoma amp; Sudhir = R and D = 1L from Surendra Amit B = R = 1.5 for CPDR canvasing And T = R = 90T from Surendra (Through Milind) Myself = R = 1.8L from Com Manoj Arun = R = 2L from Com Darsu VV = R = 5L from Com G. 22. Apart from these letters and statements, various literatures, books etc. have been referred to by the prosecution which they claim to have recovered from the residences of AF and VG. These mainly involve writings on extreme left-wing ideology including its application to India. Similar materials are alleged to have been recovered from other Accused persons as well. Recovery of different electronic communication devices like Mobile Phones, Tablets, Pen Drives and ancillary items is alleged to have been made. From these devices themselves, however, no evidence has been cited before us which would implicate AF and VG in terrorist ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transaction was mainly for the purpose of litigation on behalf of, it appears to us, detained party persons. The formation of or association with a legal front of the banned terrorist organisation has also been attributed to AF, in addition. The High Court while analysing each of these documents individually did not opine that there were reasonable grounds for believing that the accusations against such persons were not prima facie true. Those offences which come within Chapters IV and VI of the 1967 Act, charged against the Appellants, are Sections 16, 17, 18, 18B, 20, 38, 39 and 40. We have summarised the nature of allegations reflected in the chargesheet as also the affidavit of the NIA. Now we shall have to ascertain if on the basis of these materials, the prosecution has made out reasonable grounds to persuade the Court to be satisfied that the accusations against the Appellants are prima facie true. There is charge Under Section 13 of the 1967 Act and certain offences under the 1860 Code against the Appellants also. But we shall first deal with the Appellants' case in relation to charges made against them under the aforesaid provisions. 25. Section 16 prescribes punishm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment pertains to the year 2016 and or 2017. The document has a heading; viz; Party fund received in last year from C.C. Last year would invariably mean the account of 2016 as the title of this document is Accounts2K17 which would mean Accounts for 2017 . That apart requiring us to presume that Anand T. is the Appellant would require further corroboration and evidence. prima facie it appears that, the same has not been brought on record. This document is unsigned and has been recovered from the laptop one of the co-Accused. Hence, at this prima facie stage we cannot presume that Anand T. i.e. the Appellant received Rs. 90,000/- from Surendra Gadling as argued by NIA. We are afraid to state that we cannot agree with NIA's contention. (emphasis added) 28. Here we must point out that there is also a request made to Surendra from an unnamed person to ask AF to manage the financial expenses of these cases . The name of another Arun, with the surname Bhelke has surfaced in Annexure R-19 to the NIA's counter-affidavit in AF's case. This is a copy of a witness statement. In absence of any form of corroboration at the prima facie stage it cannot be presumed that it was the same A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or has indulged in a terrorist act. Terrorist act is very widely defined Under Section 15. In the present case, seizure of the incriminating material as alluded to hereinabove does not in any manner prima facie leads to draw an inference that, Appellant has committed or indulged in a 'terrorist act' as contemplated Under Section 15 of the UAP Act. 31. This judgment has not been interfered with by this Court and we also affirm this interpretation given to Section 20 of the 1967 Act for testing as to who would be a member of terrorist gang or terrorist organisation. Moreover, no material has been demonstrated by the NIA before us that the Appellants are members of the terrorist organisation. AF's involvement with IAPL as a frontal organisation of the Communist Party of India (Maoist) is sought to be established, and that has been referred to in the chargesheet as well. But the link between IAPL and the CPI (Maoist) has not been clearly demonstrated through any material. Reference to AF and VG as members of the CPI (Maoist) appears from the statement of protected witness, but that link is made in relation to events between the years 2002-2007, before the organisation was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish their association with intention to further the said organisation's terrorist activities. It is only when such intention to further the terrorist activities is established prima facie, Appellants could be brought within the fold of the offence relating to membership of a terrorist organisation. To bring within the scope of Section 38 of the 1967 Act, it would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organisation. But there must be intention to further the activities of such organisation on the part of the person implicated under such provision. But the same line of reasoning in respect of membership of a terrorist organisation Under Section 20, ought to apply in respect of an alleged offender implicated in Section 38 of the 1967 Act. There must be evidence of there being intention to be involved in a terrorist act. So far as the Appellants are concerned, at this stage there is no such evidence before us on which we can rely. 35. In three decisions of this Court, Hitendra Vishnu Thakur and Ors. v. State of Maharashtra and Ors. [(1994) 4 SCC 602], Niranjan Singh Karam Singh Punjabi, Advocate v. Jitend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... errorist organisation. 37. The second set of materials include the witness statements. There also no covert or overt act of terrorism has been attributed to the Appellants by the three witnesses. We have dealt with the summary of their statements earlier in this judgment. We have also observed earlier that mere possession of the literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of the 1967 Act. 38. We have already analysed Sections 38 and 39 of the 1967 Act. The interpretation given by us to the phrase intention to further activities of terrorist organisation could also apply in the same way in relation to Section 39 of the same statute. There has been no credible evidence against the Appellants of commission of any terrorist act or enter into conspiracy to do so to invoke the provisions of Section 43D(5) of the 1967 Act. 39. As far as raising funds for a terrorist organisation is concerned, we do not think at this stage, in absence of better evidence, the account statement is credible enough to justify invoking the bail-restricting Clause by attracting Section 40 of the 1967 Act. 40. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 tempered with; the larger interest of the public or the State would be relevant factors for granting or rejecting bail. Juxtaposing the Appellants' case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering the fact that almost five years have lapsed since they were taken into custody, we are satisfied that the Appellants have made out a case for granting bail. Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them. While dealing with the offences under Chapters IV and VI of the 1967 Act, we have referred to the materials available against them at this stage. These materials cannot justify continued detention of the Appellants, pending final outcome of the case under the others provisions of the 1860 Code and the 1967 Act. 44. While forming our opinion over granting bail to the Appellants, we have taken into account the fact that that VG was once earlier convicted involving ..... X X X X Extracts X X X X X X X X Extracts X X X X
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