Prima Facie case against the accused governs the Grant of bail under Section 43(5)D of UAPA: Supreme Court of India
While considering the grant of bail under Section 43D (5) in The Unlawful Activities (Prevention) Act, 1967, it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. This auspicious judgment was passed by the Supreme Court of India in the matter of SUDESH KEDIA V UNION OF INDIA [CRIMINAL APPEAL NO. 314-315 of 2021] by Honourable Justice L. Nageswara Rao and Honourable Justice S. Ravindra Bhat. The Appellant is accused of committing offenses under Sections 120B, 414, 384, 386, and 387 of the Indian Penal Code,1860 read with Sections 17, 18, and 21 of the Unlawful Activities (Prevention) Act, 1967 along with Sections 25 (1B) (a), 26 and 35 of the Arms Act and Section 17 (1) (2) of the Criminal Law Amendment Act. The application filed for grant of bail was dismissed by the Special Judge NIA at Ranchi and the High Court too dismissed his criminal appeal and upheld the order of the Special Judge. Thus, he filed this appeal. The facts of the case are in the FIR it was alleged that one Vinod Kumar and others were operatives of a terrorist gang and they were extorting levy from coal traders, transporters, and contractors. In exercise of powers conferred under Section 6 (5) and Section 8 of the National Investigation Agency Act, 2008, the Central Government directed NIA to take up investigation in view of the gravity of the offenses involving the seizure of arms and ammunitions and huge amounts of cash. The members of TPC, according to the charge-sheet, had been extorting money from businessmen in Amrapali and Magadh coal mining areas and had also been obstructing the smooth supply of transport of coal. During the investigation, The National Investigation Agency submitted a supplementary charge sheet in which the modus operandi of collecting levy from contractors, traders, transporters, etc. was given. Another supplementary charge-sheet was filed in which it was mentioned that the accused was engaged in transporting coal on behalf of GVK Power and Godavari Commodities and had paid levy from his current account. Thus, he colluded with the members of the terrorist gang (TPC) and was a party to a criminal conspiracy to raise funds for a terrorist gang. Thus, the HC rejected the bail application since Prima facie they were satisfied that it is a case of terror funding. The Supreme Court observed that “Section 43-D (5) mandates that a person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true. Apart from the other offenses, the Appellant is accused of committing offenses under Section 17, 18, and 21 of the UA (P) Act. The Appellant is accused of providing funds to a terrorist organization. According to the prosecution, he has entered into a conspiracy with the other members of the organization to strengthen and promote the activities of the organization. Further, an amount of Rs. 9,95,000/- was seized from the Appellant’s house, making him liable for punishable under Section 21 of the Act.” The Court relied on National Investigation Agency v. Zahoor Ahmad Shah Watali to consider the parameters for exercise of the power under Section 43 (5) D and opined that, “Appellant is entitled to bail and that the Special Court and High Court erred in not granting bail to the Appellant” since, “The material on record shows that the Appellant paid levy/extortion amount to the terrorist organization and Payment of extortion money does not amount to terror funding. Appellant paid money to the members of the TPC for the smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.”
IN THE CRIMINAL APPELLATE JURISDICTION Arising out of SLPNos . 314 315 of Nos 6259 62620) Sudesh Kedia Appellantread with Sections 17 18 21 of the Unlawful ActivitiesAct 1967 along with Sections 25(a) 26 35 of the Arms Act and Section 17 (2) of the Criminal Law Amendment Act The application filed for grant of bail was dismissed by the Judicial Commissioner cum Special Judge NIA at Ranchi on 14.02.2020. The High Court dismissed the criminal appeal filed by the Appellant and upheld the 1 | P a g e order dated 14.02.2020 of the Special Judge. Therefore the present appeal 2. On a complaint made by Shri Ramadhari Singh Sub Inspector Police Station Simariya FIR No. 02 2016 was registered on 11.01.2016 at Police Station Tandwa under Sections 414 384 386 387 120B IPC Sections 25 1B)26 35 of the Arms Act and Section 17(2) of the CLA Act against Vinod Kumar and others. The allegation against the persons named in the FIR is that they were operatives functionaries of a terrorist gang TPC and they were extorting levy from coal traders transporters and contractors. After investigation a charge sheet was filed on 10.03.2016 in the court of Chief Judicial Magistrate at Chatra against Vinod Kumar Ganjhu. In exercise of powers conferred under Section 6 5) and Section 8 of the National Investigation Agency Act 2008 the Central Government directed NIA to take up investigation in view of the gravity of the offences involving seizure of arms and ammunitions and huge amounts of cash. The members operatives of Tritiya Prastuti Committeeaccording to the charge sheet have been extorting money from businessmen in 2 | P a g e Amrapali and Magadh coal mining areas and they have amassed movable and immovable properties from the said money. They have also been obstructing smooth supply of transport of coal 3. During investigation the statement of the Appellant was recorded under Section 164 Cr.PC. The Appellant stated that Subhan Miyan contacted him and demanded money for the smooth functioning of the business of the transport company i.e. M s. Esskay Concast and Minerals Pvt. Ltd. He further stated that he had a meeting with A 5 A 10 A 11 & A 14. There was constant demand of payment of levy he admitted payment of huge amount The National Investigation Agency submitted a supplementary charge sheet against A 1 to A 16 on 21.12.2018 in which the modus operandi of collecting of levy from contractors traders transporters etc. was given. It was mentioned in the supplementary charge sheet that coal traders transporters were paying cash to Shanti Sah Sanchalan Samiti Central Coalfield Limited village committees and TPC operatives for carrying on their business smoothly. 3 | P a g e 5. On further investigation a second supplementary charge sheet was filed on 10.01.2020 in which the Appellant was shown as A 19. According to the supplementary charge sheet the Appellant is engaged in transporting of coal on behalf of GVK Power and Godavari Commodities. He had attended meetings with TPC leaders and had paid levy to TPC leader AkramanCCL employees and village committee members from his current account. In view of the payments made by him an inference was drawn that the Appellant colluded with the members of the terrorist gang was seized from his residential premises. The Appellant was apprehended on 10.01.2020. He moved an application for bail in the Court of Judicial Commissioner cum Special Judge National Investigation Agency at Ranchi. The submission made on behalf of the Appellant that he was a victim and he was forced to pay the levy as demanded by the organization was not accepted by the special 4 | P a g e court. The Special Court was convinced with the contention of the prosecution that apart from the meeting with the members of the terrorist organization the Appellant had also paid huge amount of money to The appeal filed against the judgment of the special court was dismissed by the High Court on 24.06.2020 In view of the admissions of the Appellant that he had been paying extortion money it was held that he contributed to funding of the terrorist organization. The High Court observed that there is material on record to show that he was in constant touch with the members of the terrorist organization in order to run his business Prima facie the High Court was satisfied that it is a case of terror funding. Referring to Section 43 Dof the UA P) Act and relying upon the judgment of this Court in National Investigation Agency v. Zahoor Ahmad Shah Watali1 the High Court concluded that the accusations against the Appellant are prima facie made out disentitling the Appellant for grant of bail. 15 SCC 1 5 | P a g e 7. We have heard C. A. Sundaram learned senior counsel for the Appellant and Mr. Sairica Raju learned Additional Solicitor General for the Respondent. It was submitted by the Appellant that the only accusation is payment of illegal levy to TPC for the smooth functioning of the business. The Appellant is not a member of TPC and cannot be accused of terror funding. On the other hand there was no way he could carry on smooth transportation of coal without meeting the demand of the terrorist organization. The meeting that the Appellant had with the members of the organization could not have been avoided and it was only for the purpose of his complying with the demand made by the members of the organization. It was submitted on behalf of the Appellant that a perusal of the charge sheet and the other material on record would not disclose any offence under Section 17 of the UAAct as it cannot be said that by any stretch of imagination that the Appellant has raised funds for the terrorist According to the prosecution the Appellant was providing financial support to TPC and the material 6 | P a g e gathered during investigation discloses that the Appellant has committed offences under Section 17 of the UAAct. Huge amount of money that was paid by the Appellant to protect his business which amounts to raising funds to the terrorist organization. It was submitted that the judgment of the High Court does not warrant any interference as the Appellant was in constant touch with the members of the organization TPC) which shows his involvement with the terrorist Section 43 Dmandates that a person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true. Apart from the other offences the Appellant is accused of committing offences under Section 17 18 and 21 of the UAAct The Appellant is accused of providing funds to a terrorist organization. According to the prosecution he has entered into a conspiracy with the other members of the organization to strengthen and promote the activities of the organization. Further an amount of Rs. 9 95 000 Rupees Nine Lakh and Ninety Five Thousand only) was 7 | P a g e seized from the Appellant’s house making him liable for punishable under Section 21 of the Act In National Investigation Agency v. Zahoor Ahmad Shah Watalithis Court considered the parameters for exercise of the power under Section 43 5) D held as follows “23. By virtue of the proviso to sub sectionit 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 believing that the accused is “not guilty” of such offence and 8 | P a g e 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 or disproved by other evidence and on the face of it shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence unless rebutted or contradicted. In one sense the degree of satisfaction is lighter when the Court has to opine that the accusation is “prima facie true” as compared to the opinion of the accused “not guilty” of such offence as required under the other special enactments. In any case the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 9 | P a g e 11. While considering the grant of bail under Section 43 5) D it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself whether a prima facie case is made out against the accused or not. We have gone through the material on record and are satisfied that the Appellant is entitled for bail and that the Special Court and High Court erred in not granting bail to the Appellant for the following reasons: A) A close scrutiny of the material placed before the Court would clearly shows that the main accusation against the Appellant is that he paid levy extortion amount to the terrorist organization. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge sheet and the other material on record that other accused who are members of the terrorist organization have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is carrying on transport business in the 10 | P a g e area of operation of the organization. It is alleged in the second supplementary charge sheet that the Appellant paid money to the members of the TPC for smooth running of his business. Prima facie it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the B) Another factor taken into account by the Special Court and the High Court relates to the allegation of the Appellant meeting the members of the terror organization. It has been held by the High Court that the Appellant has been in constant touch with the other accused. The Appellant has revealed in his statement recorded under Section 164 Cr.PC that he was summoned to meet A 14 and the other members of the organization in connection with the payments made by him Prima facie we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the Appellant met the members of the organization 11 | P a g e An amount of Rs. 9 95 000 was seized from the house of the Appellant which was accounted for by the Appellant who stated that the amount was withdrawn from the bank to pay salaries to his employees and other expenses. We do not agree with the prosecution that the amount is terror fund. At this stage it cannot be said that the amount seized from the Appellant is proceeds from terrorist activity. There is no allegation that Appellant was receiving any money. On the other hand the Appellant is accused of providing money to the members of TPC. 12. After a detailed examination of the contentions of the parties and scrutiny of the material on record we are not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the 12 | P a g e Appellant and the trial court shall not be influenced by these observations during trial 13. For the aforementioned reasons the judgment of the High Court is set aside and the Appellant is directed to be released on bail subject to the satisfaction of the Special Court. The appeals are allowed accordingly. .....................................J [ L. NAGESWARA RAO ....................................J [ S. RAVINDRA BHAT New Delhi April 09 2021. 13 | P a g e