KEKHRIESATUO TEP ETC. versus NATIONAL INVESTIGATION AGENCY on 12 April 2023

1. The Criminal Appeal Nos.415-417 of 2019 and Criminal AppealNos.418 of 2019 challenge the judgments and orders dated 8[th] May2018 and 3[rd] September 2018 respectively, passed by the learned DivisionBench of the Gauhati High Court, vide which the bail granted to theappellants herein came to be cancelled.

2. The appellants, in Criminal Appeal Nos.415-417 of 2019, cameto be arrested on 13[th] October 2017, whereas the appellant, in CriminalAppeal Nos.418 of 2019, came to be arrested on 25[th] March 2018.

3. The appellants in Criminal Appeal Nos.415-417 of 2019 andCriminal Appeal Nos.418 of 2019, moved the learned Special Court,National Investigating Agency, Nagaland, Deemapur (hereinafterreferred to as ‘the NIA’), for grant of bail. Vide orders dated 17[th] October2017 and 28[th] March 2018 respectively, the said applications came to beallowed.

4. Being aggrieved thereby, the NIA filed appeals before theGuwahati High Court. The Division Bench, vide the impugned orders,allowed the appeals and reversed the orders dated 17[th] October 2017and 28[th] March 2018.

5. While issuing notice, vide orders dated 28[th] May 2018 and 20[th]September 2018, this Court also stayed the judgments and orders passedby the Division Bench of the Guwahati High Court.

6. We have heard Shri R. Basant, learned Senior Counsel for theappellants and Smt. V. Mohana, learned Senior Counsel appearing forthe respondent/NIA.

A

B

C

D

E

F

G

H

A7. Shri Basant submits that the learned Special Judge, after findingthat the act of the appellants of succumbing to the demands of theorganization was not voluntary and that the investigating agency itselfhad admitted that the accused persons were voluntarily cooperating withthe investigation, had granted bail. He submits that, in these circumstances,it was not appropriate on the part of the High Court to have interferedBwith the orders of the learned Special Judge and deprived the appellantsherein of their liberty. He further submits that this Court in the case ofThwaha Fasal v. Union of India[1], has held that even at the stage ofgrant of bail, the prosecution has to prima facie establish that there wasmens rea for committing the crime punishable under Sections 39 and 40Cof the Unlawful Activities (Prevention) Act, 1967 (hereinafter referredto the “said Act”). He further submitted that even though the appellantswere arrested and subsequently released, their services are not suspendedand they are still continuing in their respective jobs.

8. Smt. V. Mohana submits that the learned Division Bench of theDHigh Court has rightly reversed the orders of grant of bail. She submitsthat the appellants themselves have admitted that they have paid themoney to the organization. She further submits that, from the documentswhich were submitted with the supplementary charge-sheet, it is clearthat the receipts are signed in the hand writings of the appellants. She,therefore, submits that there is a prima facie material to connect theEpresent appellants with the crime in question.

9. Smt. Mohana further relies on the provisions of sub-section (5)of Section 43D of the said Act to buttress the submission that since theprima facie case is made out, the appellants were not entitled to bailand as such, the High Court has rightly reversed the orders.F10. It will be relevant to refer to the following observation of thelearned Special Judge, while granting them bail:-

“I have considered this peculiar position which has a markeddifference between the extortionist and the tax payers who areGunder constraint. It is also in all correctness by the learned SpecialPP, NIA to argue that the petitioners should take recourse toprotection of the law enforcing agencies. However, in myconsidered view the position of the accused who are compelledto pay tax are precarious and there is no doubt that the law enforcing agencies may not always be there for their protectionand penalty for violation which always looms is eminent. Underthis given facts we are drawn to the cardinal principle of criminaljurisprudence which postulates that there can be no crime whenthere is no mens rea. It is apparent to see that the accused personshave undoubtedly committed offence but it is an offence which isprompted by element of threat. We are drawn to the CriminalAppeal No. 4 (K) of 2017 NIA vs. Victo Swu which is reliedupon by the Special PP, NIA where the submission of the learnedPP NIA is recorded as “Thereafter the IA. PP NIA submittedthat this document as a piece of evidence which would prove thatthe respondent/accused was regularly extorting money forNSCN(K) from Govt. officers and other individuals” this isexplicitly clear that the present accused are victims of theextortionists, such as Victo Swu and there is the imperative dutycast upon the court to differentiate between this two individuals –those who commit extortion on their own volition and those whoare compelled to pay tax by compulsion, this will serve the endsof justice. The mental exercise which is cast upon the specialJudge to examine whether there is a prima facie true case in theinstant case thus falls short of the requirement to tie the hands ofthe Court to consider bail in such cases. The prosecution has notbeen able to show that indeed the accused have been voluntarilycontributing to the funding of the outlawed outfits to execute theirnefarious activities. There is also noting emanating from the C.D.brought for the perusal of the court that the accused persons aresympathizers of the extortionist or U.G. factions, nor is there anyevidence to show that the accused persons are active membersof the outlawed organizations. There must be a line drawn whichdifferentiate the likes of accused Victo Swu and the presentaccused persons. In the present facts the balance is more inclinedto show that the accused are victims of circumstances and tohold them on equal footing with the terrorist would be graveinjustice. Unless it can be shown that the accused are actuallysympathizers of the outlawed outfits and they are depriving fundon their own volition to sustain the outlawed organisations it wouldbe prejudiced to conclude that there is a prima facie true evidence.The fact that the accused/petitioners have not taken security andhave not reported the matter to the authority cannot equate themas terrorists.

AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

AHence, I derive at the conclusion that there is no prima fadetrue evidences against the accused persons to show that they aresympathizers and they have been voluntarily contributing to theoutlawed organizations. I rule that the investigation agency havealso no hindrances at all in securing any information from theaccused persons as the NIA have admitted that the accusedBpersons and voluntarily cooperating with the investigation bysurrendering all relevant documents which wee needed by theinvestigation. The accused persons also being Govt. servants andhaving deep root in the society there is no chance for them tojump bail.”C11. A perusal of the aforesaid would clearly reveal that even,according to the prosecution case, accused Nos.1 to 3, who were officebearers of the organization were regularly extorting money from variousgovernment servants and other individuals. The learned Special Judgehas rightly observed that the Court has to differentiate between thoseDwho commit extortion on their own volition and those who are coercedto pay by compulsion. The Court has found that the prosecution has notbeen able to show that the accused have been voluntarily contributing tothe funding of the outlawed outfits to execute their nefarious activities.The Special Judge also found that there was no material placed on recordto show that the appellants were sympathizers of the extortionists orEU.G. factions. The Court further found that the investigating agencyitself had admitted that the accused persons were voluntarily cooperatingwith the investigation.

12. The learned Judges of the Division Bench found that thelearned Special Judge having itself recorded that the accused-appellantsFhad committed the offence, albeit prompted by an element of threathaving regard to the provisions under Section 43D (5) of the said Act,the prayer for bail could not have been acceded.

13. The provisions of Section 43D (5) of the said Act have beenconsidered by this Court in the case of Thwaha Fasal (supra). TheGCourt, after reproducing the provisions of Section 43D (5) and afterconsidering the judgment of this Court in the cases of NationalInvestigation Agency v. Zahoor Ahmad Shah Watali[2] and RanjitsingBrahhmajeetsing Sharma v. State of Maharashtra and Another[3], 2 (2019) 5 SCC 1H3 (2005) 5 SCC 294

held that while deciding a bail petition filed by the accused against whomoffences under Chapter IV and VI of the said Act have been made, theCourt has to consider as to whether there are reasonable grounds forbelieving that the accusation against the accused is prima facie true. Itwill be worthwhile to note that this Court, in the case of Zahoor AhmadShah Watali (supra), has distinguished the words ‘not guilty’ as used inTADA, MCOCA and NDPS Act as against the words ‘prima facie’ inthe present Act. The Court has held that a degree of satisfaction requiredin a case of ‘not guilty’ is much stronger than the satisfaction required ina case where the words used are ‘prima facie.’

14. The additional requirement, as provided under sub-section (5)of Section 43D of the said Act is twin. The first one being that the publicprosecutor has to be given an opportunity of being heard. The secondone, that the Court is of the opinion that there are reasonable groundsfor believing that the accusation against such a person is prima facietrue.

15. Undisputedly, in the present case, the first requirement hasbeen complied with. Insofar as the second requirement with regard toCourt arriving at a satisfaction that the accusation against such personsis prima facie true is concerned, we would not like to go into the elaboratediscussion of the evidence, inasmuch as that may hamper the rights ofthe parties at the stage of trial.

16. It would further reveal that not only the charge-sheet butsupplementary charge-sheet has been filed. The Forensic ScienceLaboratory (for short, “FSL”) report show that the receipts are in thehand writing of the appellants. Be that as it may, it is not even the caseof the appellants that they did not make the payment. It is their contentionthat they were forced to make the payment. As such, their custodialinterrogation is not warranted.

17. However, it may be noted that a perusal of Sections 39 and 40of the said Act, as have been interpreted by this Court, would show thata prima facie satisfaction has to be arrived that the acts which arecommitted by the accused have been committed with intention to furtherthe activity of a terrorist organization.

18. A perusal of Sections 39 and 40 of the said Act would itselfreveal, that for an act to constitute as an offence within the meaningof that Section, it has to be done with the intention of furthering the A

B

C

D

E

F

G

H

Aactivities. This Court, in the case of Thwaha Fasal (supra), whileconsidering the provisions of Section 39 of the said Act, has also takena similar view.

19. The learned Special Judge has himself distinguished cases ofthe persons who have indulged into extortion for furthering the activitiesBof the organization and the persons like the present appellants, who weregovernment servants, and compelled to contribute the amount. We,therefore, find that it cannot be said that the prima facie opinion, asexpressed by the learned Special Judge, could be said to be perverse orimpossible.

C20. An interference by an Appellate Court and particularly in amatter when liberty granted to a citizen was being taken away would bewarranted only in the event the view taken by the Trial Court was eitherperverse or impossible. On this limited ground, we find that the appealsdeserve to be allowed.

D21. Therefore, the impugned orders are quashed and set asideand the appeals are allowed.

22. However, it is made clear that any observation madehereinabove shall not be construed an expression on the merits of thematter.

E23. Pending application(s), if any, shall stand disposed of.

Ankit Gyan

Appeals allowed.

F

G

H