Sections 120B/414/384/386/387 of the Indian Penal Code,1860 (IPC) read with Sections 17/18/21 of the Unlawful Activities (Prevention) Act, 1967 along with Sections 25 (1B) (a)/26/35 of the Arms Act and Section 17 (1) (2) of the Criminal Law Amendment (CLA) Act - grant of bail -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 area of operation of the organization. It is alleged in the second supplementary chargesheet 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 organization. (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. (C) An amount of Rs. 9,95,000/- (Rupees Nine Lakh and Ninety-Five Thousand only) was seized from the house of the Appellant which was accounted for by the Appellant who stated that the amount was withdrawn from the bank to pay salaries to his employees and other expenses.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 Appellant and the trial court shall not be influenced by these observations during trial.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos . 314-315 of2021
(Arising out of SLP (Crl.) Nos. 6259-6260 of 2020)
Sudesh Kedia .... Appellant (s)
Versus
Union of India …. Respondent (s)
J U D G M E N T
L. NAGESWARA RAO, J.
1. The Appellant is accused of committing offences
under Sections 120B/414/384/386/387 of the Indian
Penal Code,1860 (IPC) read with Sections 17/18/21 of
the Unlawful Activities (Prevention) Act, 1967 along with
Sections 25 (1B) (a)/26/35 of the Arms Act and Section
17 (1) (2) of the Criminal Law Amendment (CLA) 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
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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) (a) 26/35 of the Arms Act and Section 17 (1) (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 Committee (TPC), according to the charge-sheet,
have been extorting money from businessmen in
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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 A5, A-10, A-11 & A-14. There was constant demand of
payment of levy, he admitted payment of huge amount
of money.
4. 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 chargesheet 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.
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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 Akraman (A14) CCL 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 (TPC)
and was a party to a criminal conspiracy to raise funds
for a terrorist gang. Further, an amount of Rs. 9,95,000/-
(Rupees Nine Lakh and Ninety-Five Thousand only) 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
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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
them.
6. 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-D (5) of the UA
(P) Act, and relying upon the judgment of this Court in
National Investigation Agency v. Zahoor Ahmad
Shah Watali
1
, the High Court concluded that the
accusations against the Appellant are prima facie made
out disentitling the Appellant for grant of bail.
1 (2019) 5 SCC 1
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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 chargesheet and the other material on record would not
disclose any offence under Section 17 of the UA (P) Act
as it cannot be said that by any stretch of imagination
that the Appellant has raised funds for the terrorist
organization.
8. According to the prosecution, the Appellant was
providing financial support to TPC and the material
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gathered during investigation discloses that the
Appellant has committed offences under Section 17 of
the UA (P) Act. 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
gang.
9. 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 offences, the Appellant is accused of committing
offences 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/-
(Rupees Nine Lakh and Ninety-Five Thousand only) was
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seized from the Appellant’s house, making him liable for
punishable under Section 21 of the Act.
10. In National Investigation Agency v. Zahoor
Ahmad Shah Watali (supra), this 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-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 believing that
the accused is “not guilty” of such offence and
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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
Act….”
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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
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area of operation of the organization. It is
alleged in the second supplementary chargesheet 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
organization.
(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.
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(C) An amount of Rs. 9,95,000/- (Rupees Nine Lakh
and Ninety-Five Thousand only) 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
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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.
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