VERNON versus THE STATE OF MAHARASHTRA & ANR. on 28 July 2023

[2023] 10 S.C.R. 867 : 2023 INSC 655

VERNON

v.

THE STATE OF MAHARASHTRA & ANR.

(Criminal Appeal No. 639 of 2023)

JULY 28, 2023

[ANIRUDDHA BOSE AND SUDHANSHU DHULIA, JJ.]

Unlawful Activities (Prevention) Act, 1967 – Chapters IV andVI- ss.16, 17, 18, 18B, 20, 38, 39, 40 and ss.13, 43D(5) – Denial ofbail – When not justified – Bhima-Koregaon violence – FIR – Scopeof the investigation was expanded – Searches were conducted atthe residences/workplaces of the appellants and they were arrested– Case of the NIA is that various letters and other materials recoveredfrom the arrested co-accused persons showed appellants’involvement with the CPI (Maoist), an organization placed in theFirst Schedule to the 1967 Act as a terrorist organization – It isalleged that the appellants played an active role in recruitment ofand training for cadres of the said organization and that one of theappellant also had role in managing finances thereof – Bail plea ofthe appellants dismissed by High Court – Held: Contents of theletters through which the appellants are sought to be implicated arein the nature of hearsay evidence, recovered from co-accused – Nocovert or overt terrorist act was attributed to the appellants in theseletters or any other material – The letters were not recovered fromthe appellants – Hence, these communications or content thereofhave weak probative value or quality – No credible case ofconspiracy to commit offences enumerated under Chapter IV andVI – Mere participation in seminars by itself cannot constitute anoffence under the bail-restricting Sections of the 1967 Act – Nomaterial was demonstrated that the appellants are members of theterrorist organization – The funds, dealing with which was attributedto one of the appellant cannot be connected to any terrorist act –No reasonable grounds for believing that the accusation againstthe appellant of committing or conspiring to commit terrorist act isprima facie true – Juxtaposing the appellants’ case founded onArticles 14 and 21 with the allegations and considering the factthat almost five years have lapsed since they were taken into custody,the appellants have made out a case for granting bail – Impugned

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CDEFGH

Ajudgments set aside – Appellants be released on bail, on such termsand conditions the Special Court may consider fit – Conditions tobe imposed, enumerated – Penal Code, 1860 – ss. 121, 121A, 124A,153A, 505(1)(b), 117, 120B r/w 34 – Constitution of India – Arts.14, 21 – National Investigation Agency Act, 2008 – Bail.

BUnlawful Activities (Prevention) Act, 1967 – s.15(1)(a)-(c) –When not attracted – Held: In none of the materials which havebeen referred to by the prosecution, the acts specified to in sub-clause (a) of s.15(1) can be attributed to the appellants – Nor thereis any allegation against them which would attract sub-clause (c)of s.15(1) – Further, mere holding of certain literatures throughCwhich violent acts may be propagated would not ipso facto attractthe provisions of s.15(1)(b) – Thus, prima facie, there is no caseagainst the appellants u/s.15(1) (b).

Unlawful Activities (Prevention) Act, 1967 – s.20 –Interpretation given to s.20 by Bombay High Court in Dr. AnandDTeltumbde vs. National Investigation Agency and Another case fortesting as to who would be a member of terrorist gang or terroristorganisation, affirmed – In the present case, on facts, s.20 cannotbe made applicable against the appellants at this stage of theproceeding, on the basis of available materials.EUnlawful Activities (Prevention) Act, 1967 – s.2(k), 2(m), 15– Held: “Terrorist act” as defined u/s.2(k) carries the meaningassigned to it in s.15 – This Section also stipulates that theexpressions “terrorism” and “terrorist” shall be construedaccordingly – This implies construction of these two expressions inFthe same way as has been done in s.15 – “terrorist organisation”has been independently defined in s.2(m) – But so far as the word“terrorist” is concerned, in this Section also, the interpretationthereof would be relatable to the same expression as used in s.15 –An expression used in different parts of a statute shall ordinarilyconvey the same meaning unless contrary intention appears fromGdifferent parts of the same enactment itself – No such contraryintention is found in the 1967 Act – Interpretation of Statutes.

Bail – Duty of the Court – Held: There is a duty of the Courtto form an opinion on perusal of the case diary or the report madeu/s.173, CrPC that there are reasonable grounds for believing thatH

the accusations against such persons are prima facie true whileconsidering the prayer for bail, to reject prayers for bail of theappellants – Code of Criminal Procedure, 1973 – s.173 – CriminalLaw.

Unlawful Activities (Prevention) Act, 1967 – ss.38, 20 –Offence relating to membership of a terrorist organisation – Held:To bring within the scope of s.38, it would not be sufficient todemonstrate that one is an associate or someone who professes tobe associated with a terrorist organisation – But there must beintention to further the activities of such organisation on the partof the person implicated under such provision – The same line ofreasoning in respect of membership of a terrorist organisation u/s.20, ought to apply in respect of an alleged offender implicated ins.38 – There must be evidence of there being intention to be involvedin a terrorist act – So far as the appellants are concerned, at thisstage there is no such evidence which can be relied on.

Bail – Prima facie “test” – Held: It would not satisfy the primafacie “test” unless there is at least surface-analysis of probativevalue of the evidence, at the stage of examining the question ofgranting bail and the quality or probative value satisfies the Courtof its worth – Criminal Law.

Unlawful Activities (Prevention) Act, 1967 – ss.38, 39, 43D(5) – “intention to further activities” – Held: The interpretationgiven to the phrase “intention to further activities” of terroristorganisation could also apply in the same way in relation to s.39 –In the present case, there has been no credible evidence against theappellants of commission of any terrorist act or enter into conspiracyto do so to invoke the provisions of s.43D (5).

Bail – Unlawful Activities (Prevention) Act, 1967 – NarcoticDrugs and Psychotropic Substances Act, 1985 – s.37 – Held: Therestrictions on the Court while examining the question of bail underthe 1967 Act is less stringent in comparison to the provisions ofs.37, Narcotic Drugs and Psychotropic Substances Act, 1985 –Criminal Law.

Bail – Unlawful Activities (Prevention) Act, 1967 – Bailrestricting sections – Jurisdiction of Constitutional Court – Held: Abail restricting clause cannot denude the jurisdiction of a ABC

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AConstitutional Court in testing if continued detention in a givencase would breach the concept of liberty enshrined in Article 21,would apply in a case where such a bail-restricting clause is beinginvoked on the basis of materials with prima facie low-probativevalue or quality – Constitution of India – Article 21 – CriminalLaw.B

Criminal Law – Stringent provisions of a statute –Interpretation of – Held: When the statutes have stringent provisions,the duty of the Court would be more onerous – Graver the offence,greater should be the care taken to see that the offence would fallwithin the four corners of the Act – Unlawful Activities (Prevention)CAct, 1967 – Terrorist and Disruptive Activities (Prevention) Act, 1987– Interpretation of Statutes.

Allowing the appeals, the Court

HELD: 1.1 As it would be evident from the analysis of theDevidence cited by the NIA, the acts allegedly committed by theappellants can be categorised under three heads. The first is theirassociation with a terrorist organisation which the prosecutionclaims from the letters and witness statements. But what thisCourt must be conscious of, while dealing with prima facie worthof these statements and documents is that none of them had beenEseized or recovered from the appellants but these recoveriesare alleged to have been made from the co-accused. The secondhead of alleged offensive acts of the appellants is keepingliteratures propagating violence and promoting overthrowing ofa democratically elected government through armed struggle.FBut again, it is not the NIA’s case that either of the two appellantsis the author of the materials found from their residences, asalleged. None of these literatures has been specifically proscribedso as to constitute an offence, just by keeping them. Thirdly, sofar as AF is concerned, some materials point to handling offinances. But such finances, as per the materials through whichGthe dealings are sought to be established, show that thetransaction was mainly for the purpose of litigation on behalf of, itappears to us, detained party persons. The formation of orassociation with a legal front of the banned terrorist organisationhas also been attributed to AF, in addition. The High Court whileHanalysing each of these documents individually did not opine that there were reasonable grounds for believing that the accusationsagainst such persons were not prima facie true. Those offenceswhich come within Chapters IV and VI of the 1967 Act, chargedagainst the appellants, are Sections 16, 17, 18, 18B, 20, 38, 39and 40. In none of the materials which have been referred to bythe prosecution, the acts specified to in sub-clause (a) of Section15(1) of the 1967 Act can be attributed to the appellants. Northere is any allegation against them which would attract subclause(c) of Section 15(1) of the said statute. As regards the actsspecified in Section 15(1) (b) thereof, some of the literaturealleged to have been recovered from the appellants, bythemselves give hint of propagation of such activities. But thereis nothing against the appellants to prima facie establish that theyhad indulged in the activities which would constitute overawingany public functionary by means of criminal force or the show ofcriminal force or attempts by the appellants to do so. Neitherthere is allegation against them of causing death of any publicfunctionary or attempt to cause death of such functionary. Mereholding of certain literatures through which violent acts may bepropagated would not ipso facto attract the provisions of Section15(1)(b) of the said Act. Thus, prima facie, this Court cannotreasonably come to a finding that any case against the appellantsunder Section 15(1) (b) of 1967 Act can be held to be true. [Paras24 and 26][903-B-F; 904-B-E]

1.2 Section 17 of the 1967 Act deals with punishment forraising funds for terrorist acts. Here also the funds, dealing withwhich has been attributed to AF, cannot be connected to anyterrorist act. In the case of Dr. Anand Teltumbde the same accountstatement was referred to. There is also a request made to ‘S’from an unnamed person to ask AF to manage the financialexpenses of “these cases”. The name of another ‘A’, with thesurname Bhelke has surfaced in Annexure “R-19” to the NIA’scounter-affidavit in AF’s case. This is a copy of a witnessstatement. In absence of any form of corroboration at the primafacie stage it cannot be presumed that it was the same Arun (i.e.,AF) who had received money from ‘D’. The prosecution has alsonot produced any material to show that actual money wastransmitted. The communication dated 5th November 2017 (“R-5”), purportedly addressed by ‘S’ to ‘P’ does not speak of any ABC

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Apayment being made to AF. The rationale applied by the BombayHigh Court in the abovequoted passage of the judgment in thecase of Dr. Anand Teltumbde, which has been sustained by thisCourt, ought to apply in the case of AF as well. [Paras 27 and28][904-E-F; 905-D-F]B1.3 It is not possible to form an opinion that there arereasonable grounds for believing that the accusation against theappellant of committing or conspiring to commit terrorist act isprima facie true. The witness statements do not refer to anyterrorist act alleged to have been committed by the appellants.The copies of the letters in which the appellants or any one ofCthem have been referred, record only third-party response orreaction of the appellants’ activities contained in communicationsamong different individuals. These have not been recovered fromthe appellants. Hence, these communications or content thereofhave weak probative value or quality. That being the position,Dneither the provisions of Section 18 nor 18B can be invokedagainst the appellants, prima facie, at this stage. The associationof the appellants with the activities of the designated terroristorganisation is sought to be established through third partycommunications. Moreover, actual involvement of the appellantsin any terrorist act has not surfaced from any of theseEcommunications. Nor there is any credible case of conspiracy tocommit offences enumerated under chapters IV and VI of the1967 Act. Mere participation in seminars by itself cannotconstitute an offence under the bail-restricting Sections of the1967 Act, with which they have been charged. [Para 29][905-F-FH; 906-A-B]

1.4 So far as application of Section 20 of the 1967 Act isconcerned, the Bombay High Court in the case of Dr. AnandTeltumbde construed the said provision. This judgment has notbeen interfered with and this Court also affirm this interpretationGgiven to Section 20 of the 1967 Act for testing as to who would bea member of terrorist gang or terrorist organisation. Moreover,no material has been demonstrated by the NIA that the appellantsare members of the terrorist organisation. AF’s involvement withIAPL as a frontal organisation of the Communist Party of India(Maoist) is sought to be established, and that has been referredH

to in the chargesheet as well. But the link between IAPL and theCPI (Maoist) has not been clearly demonstrated through anymaterial. Reference to AF and VG as members of the CPI (Maoist)appears from the statement of protected witness, but that link ismade in relation to events between the years 2002-2007, beforethe organisation was included in the First Schedule to the 1967Act. No evidence of continued membership after the party wasclassified as a terrorist organisation has been brought to thisCourt’s notice. Nor is there any reliable evidence to link IAPLwith CPI (Maoist) as its frontal organisation. Prima facie this Courtdoes not think that Section 20 can be made applicable againstthe appellants at this stage of the proceeding, on the basis ofavailable materials. [Paras 30 and 31][906-C, F-H; 907-A-B]

Dr. Anand Teltumbde v. National Investigation Agencyand Another 2022 SCC OnLine Bom 5174 – approved.

1.5 “Terrorist act” as defined under Section 2(k) of the1967 Act carries the meaning assigned to it in Section 15. ThisSection also stipulates that the expressions “terrorism” and“terrorist” shall be construed accordingly. This impliesconstruction of these two expressions in the same way as hasbeen done in Section 15. “terrorist organisation” has beenindependently defined in Section 2(m) to mean an organisationlisted in the First Schedule or an organisation operating underthe same name as an organisation so listed. But so far as theword “terrorist” is concerned, in this Section also, theinterpretation thereof would be relatable to the same expressionas used in Section 15. It is one of the basic rules of statutoryconstruction that an expression used in different parts of a statuteshall ordinarily convey the same meaning – unless contraryintention appears from different parts of the same enactmentitself. No such contrary intention can be found in the 1967 Act.Section 38 of the 1967 Act carries the heading or title “offencerelating to membership of a terrorist organisation”. A terroristact would have to be construed having regard to the meaningassigned to it in Section 15 thereof. Interpretation to thisprovision has been given earlier. “terrorist organisation” [asemployed in Section 2(m)], is not a mere nomenclature and this ABC

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Aexpression would mean an organisation that carries on or indulgesin terrorist acts, as defined in said Section 15. The term terrorism,in view of the provisions of Section 2(k) of the said Act, ought tobe interpreted in tandem with what is meant by ‘terrorist Act’ inSection 15 thereof. [Paras 32 and 33][907-B-G]

B1.6 In this context, to bring the appellants within the fold ofSection 38 of the 1967 Act, the prosecution ought to have primafacie establish their association with intention to further the saidorganisation’s terrorist activities. It is only when such intentionto further the terrorist activities is established prima facie,appellants could be brought within the fold of the offence relatingCto membership of a terrorist organisation. To bring within thescope of Section 38 of the 1967 Act, it would not be sufficient todemonstrate that one is an associate or someone who professesto be associated with a terrorist organisation. But there must beintention to further the activities of such organisation on the partDof the person implicated under such provision. But the same lineof reasoning in respect of membership of a terrorist organisationunder Section 20, ought to apply in respect of an alleged offenderimplicated in Section 38 of the 1967 Act. There must be evidenceof there being intention to be involved in a terrorist act. So far asthe appellants are concerned, at this stage there is no suchEevidence which can be relied on. The Court ought to carefullyexamine every case, before making an assessment if the Act wouldapply or not. When the statutes have stringent provisions theduty of the Court would be more onerous. Graver the offence,greater should be the care taken to see that the offence would Ffall within the four corners of the Act. Though these judgmentswere delivered while testing similar rigorous provisions underthe Terrorist and Disruptive Activities (Prevention) Act, 1987,the same principle would apply in respect of the 1967 Act as well.[Paras 34 and 35][907-G-H; 908-A-F]

G1.7 In the case of Zahoor Ahmad Shah Watali, it has beenheld that the expression “prima facie true” would mean that thematerials/evidence collated by the investigating agency inreference to the accusation against the accused concerned in thechargesheet must prevail, unless overcome or disproved by other H

evidence, and on the face of it, materials must show complicity ofsuch accused in the commission of the stated offences. What thisratio contemplates is that on the face of it, the accusation againstthe accused ought to prevail. In this Court’s opinion, however, itwould not satisfy the prima facie “test” unless there is at leastsurface-analysis of probative value of the evidence, at the stageof examining the question of granting bail and the quality orprobative value satisfies the Court of its worth. In the case of theappellants, contents of the letters through which the appellantsare sought to be implicated are in the nature of hearsay evidence,recovered from co-accused. Moreover, no covert or overtterrorist act has been attributed to the appellants in these letters,or any other material forming part of records of these two appeals.Reference to the activities of the accused are in the nature ofideological propagation and allegations of recruitment. Noevidence of any of the persons who are alleged to have beenrecruited or have joined this “struggle” inspired by the appellantshas been brought before us. Thus, NIA’s contention that theappellants have committed the offence relating to support givento a terrorist organisation is not accepted. The second set ofmaterials include the witness statements. There also no covertor overt act of terrorism has been attributed to the appellants bythe three witnesses. Mere possession of the literature, even ifthe content thereof inspires or propagates violence, by itselfcannot constitute any of the offences within Chapters IV and VIof the 1967 Act. [Paras 36 and 37][908-F-H; 909-A-D]

National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 : [2019] 5 SCR 1060 – referredto.

1.8 Sections 38 and 39 of the 1967 Act have already beenanalysed. The interpretation given to the phrase “intention tofurther activities” of terrorist organisation could also apply inthe same way in relation to Section 39 of the same statute. Therehas been no credible evidence against the appellants ofcommission of any terrorist act or enter into conspiracy to do soto invoke the provisions of Section 43D (5) of the 1967 Act. Asfar as raising funds for a terrorist organisation is concerned, at ABC

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Athis stage, in absence of better evidence, the account statementis not credible enough to justify invoking the bail-restrictingclause by attracting Section 40 of the 1967 Act. [Paras 38 and39][909-E-F]

1.9 These findings are being returned as the restrictionsBon the Court while examining the question of bail under the 1967Act is less stringent in comparison to the provisions of Section37 of the Narcotic Drugs and Psychotropic Substances Act, 1985.This Court is not called upon, for granting a bail to an accusedwith commercial quantity of contraband article under the 1985Act, to satisfy ourselves that there are reasonable grounds forCbelieving that an accused is not guilty of such offence and that heis not likely to commit any offence while on bail. Here, this Courthas to satisfy ourselves that the specified offences alleged to havebeen committed by the appellants cannot be held to be primafacie true. [Para 40][909-G-H; 910-A]

D1.10 In these two proceedings, the appellants have notcrossed, as undertrials, a substantial term of the sentence thatmay have been ultimately imposed against them if the prosecutioncould establish the charges against them. But the fundamentalproposition of law laid down in K.A. Najeeb, that a bail restrictingEclause cannot denude the jurisdiction of a Constitutional Courtin testing if continued detention in a given case would breach theconcept of liberty enshrined in Article 21 of the Constitution ofIndia, would apply in a case where such a bail-restricting clauseis being invoked on the basis of materials with prima facie low-probative value or quality. Juxtaposing the appellants’ caseFfounded on Articles 14 and 21 of the Constitution of India withthe aforesaid allegations and considering the fact that almost fiveyears have lapsed since they were taken into custody, theappellants have made out a case for granting bail. Allegationsagainst them no doubt are serious, but for that reason alone bailGcannot be denied to them. While dealing with the offences underChapters IV and VI of the 1967 Act, the materials available atthis stage cannot justify continued detention of the appellants,pending final outcome of the case under the others provisions ofthe 1860 Code and the 1967 Act. [Paras 42 and 43][910-C-E, G-H; 911-A-B]H

Union of India v. K.A. Najeeb (2021) 3 SCC 713;Angela Harish Sontakke v. State of Maharashtra (2021)3 SCC 723 – relied on.

A

Jayendra Saraswathi Swamigal v. State of Tamil Nadu(2005) 2 SCC 13 : [2005] 1 SCR 160; State v. JagjitSingh AIR 1962 SC 253 : [1962] SCR 622; GurucharanSingh v. State of (UT of Delhi) (1978) 1 SCC 118 :[1978] 2 SCR 358 – referred to.

B

1.11 The impugned judgments are set aside. The appellantsbe released on bail in respect of the cases(s) out of which thepresent appeals arise, on such terms and conditions the SpecialCourt may consider fit and proper, if the appellants or any one ofthem are not wanted in respect of any other case. The conditionsto be imposed by the Special Court, enumerated. [Paras 45][911-C-D]

C

Romila Thapar and Ors. v. Union of India and Ors.Writ Petition (Criminal) No. 260/2018; Thwaha Fasalv. Union of India 2021 SCC OnLine SC 1000; SagarTatyaram Gorkhe and Another v. State of Maharashtra(2021) 3 SCC 725; Arup Bhuyan v. State of Assam andAnother 2023 SCC OnLine SC 338; Hitendra VishnuThakur and Others v. State of Maharashtra and Others(1994) 4 SCC 602 : [1994] 1 Suppl. SCR 360; NiranjanSingh Karam Singh Punjabi, Advocate v. JitendraBhimraj Bijjaya and Others (1990) 4 SCC 76 : [1990]3 SCR 633; Usmanbhai Dawoodbhai Memon andOthers v. State of Gujarat (1988) 2 SCC 271 : [1988] 3SCR 225 – referred to.

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Case Law Reference

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[2023] 10 S.C.R.

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CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 639 of 2023.

From the Judgment and Order dated 15.10.2019 of the High Courtof Judicature at Bombay in Criminal Bail Application No. 3007 of 2021.

WithC

Criminal Appeal No. 640 of 2023.

Tushar Mehta, SG, K M Nataraj, ASG, Ms. Rebecca John,R. Basant, Sr. Advs., Jawahar Raja, Chinmay Kanojia, Archit Krishna,N. Sai Vinod, Vishnu P, Ms. Varsha Sharma, Anand Dilip Landge,DSiddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla,Sourav Singh, Kanu Agarwal, Mrs. Swati Ghildiyal, Ms. Deepabali Dutta,Sabrish Subramanian, Ms. Sairica S Raju, Arvind Kumar Sharma,Shrikant Sonkawade, Yug Chaudhry, Advs. for the appearing parties.

The Judgment of the Court was delivered byEANIRUDDHA BOSE, J.

The appellants before us assail two judgments of the High Courtof Judicature at Bombay rejecting, in substance, their prayers for bail.Both the applications were filed on 27[th] October 2018 after the SpecialJudge, Pune under the Unlawful Activities (Prevention) Act, 1967 (“1967FAct”) had dismissed their bail plea. The decisions of the High Courtwere delivered on the same date i.e. 15[th] October 2019.

2. We shall deal with both the appeals in this judgment as thedetention of the appellants was on the basis of the same First InformationReport (“FIR”) and the chargesheet also contains the same Sections inGrespect of which offences are alleged to have been committed by them.These are Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B readwith Section 34 of the Indian Penal Code, 1860 (“1860 Code”) andSections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act. Whereverthere are distinguishing features vis-à-vis the individual appellants inrelation to the nature of evidence against them relied on by theH

Investigating Agency, we shall refer to them separately. In the subject-case, initially investigation was conducted by the regular law enforcementagency, being the State police. The Central Government, in exercise oftheir power under Section 6(5) read with Section 8 of the NationalInvestigation Agency Act, 2008 directed the National Investigation Agency(“NIA”) to take up investigation of the case by an order passed on 24[th]January 2020. The case was re-registered at the NIA Police Station,Mumbai as RC No.01/2020/NIA/MUM. Before us, the appeals havebeen contested by Mr. Nataraj, learned Additional Solicitor General,appearing for the NIA.

3. The proceedings against the appellants have their origin in anFIR, bearing CR No.4/2018 dated 8[th] January 2018 registered withVishrambaug Police Station, Pune, Maharashtra. The informant is oneTushar Ramesh Damgude. The incident which prompted filing of theFIR was in relation to a programme at Shaniwar Wada, Pune held on31[st] December 2017. The organisers for this event- Elgar Parishad, wereactivists of Kabir Kala Manch, a cultural organisation. There were variousevents in connection with the said programme, which according to theprosecution, were provocative in nature and had the effect of creatingenmity between caste groups leading to violence and loss of life, as alsostate wide agitation. There were books kept at the venue, which,according to the maker of the FIR were also provocative. There wereincidents of violence, arson, and stone pelting near Bhima-Koregaonand six members of Kabir Kala Manch and other associates were namedas accused in the FIR. The appellants did not feature in the FIR. Thescope of the investigation was subsequently expanded, as we find in thejudgment giving rise to Criminal Appeal No.639 of 2023 on 17[th] April2018 the Pune Police conducted searches at the residences of eightindividuals, i.e. (1) Rona Wilson of Delhi, (2) Surendra Gadling of Nagpur,(3) Sudhir Dhawale of Mumbai, (4) Harshali Potdar of Mumbai, (5)Sagar Gorkhe (also referred to as Sagar Gorakhe by the prosecution) ofPune, (6) Deepak Dhengale of Pune, (7) Ramesh Gaichor of Pune and(8) Jyoti Jagtap of Pune. The residences of Shoma Sen and MaheshSitaram Raut, who have also been implicated in the same case, weresearched on 6[th] June 2018. It has been argued by the NIA that duringthe searches, electronic devices and documents apart from other materialswere recovered and the seized articles were sent to Forensic ScienceLaboratory (“FSL”) for analysis. Cloned copies thereof, according tothe prosecution, revealed incriminating materials. The appellants’ names AB

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Adid not also figure in the initial chargesheet dated 15[th] November 2018,which implicated ten individuals as accused. Among them were SudhirDhawale, Surendra Gadling, Shoma Sen, Mahesh Raut and Rona Wilson,who were in detention at that point of time. Rest five accused personswere absconding at that point of time. We are informed by Mr. Natarajthat one of the absconding accused, Milind Teltumbde, has since passedBaway.

4. Searches were conducted at the residences/workplaces of theappellants and they were arrested on the same day, i.e. on 28[th] August2018. They were initially put under house arrest and subsequently sentto judicial custody. Case of the NIA is that various letters and otherCmaterials recovered from the arrested co-accused persons includingSurendra Gadling and Rona Wilson showed appellants’ involvement withthe Communist Party of India (Maoist). This organisation has been placedin the First Schedule to the 1967 Act as a terrorist organisation by anotification dated 22[nd] June 2009 issued in terms of Section 2(m) of theD1967 Act. Prosecution’s case is that the appellants played an active rolein recruitment of and training for cadres of the said organisation andArun Ferreira (whom we shall refer to henceforth as AF), being theappellant in Criminal Appeal No.640 of 2023 also had role in managingfinances of that organisation. The other accused persons who weredetained in the third phase were P. Varavara Rao and Sudha Bharadwaj.EAmong them, we are apprised by the learned senior counsel for theappellants, Ms. Rebecca John appearing for Vernon Gonsalves (VG inshort), being the appellant in Criminal Appeal No.639 of 2023 and Mr.R. Basant (representing AF) that, P. Varavara Rao has been enlargedon bail by an order of this Court passed on 10[th] August 2022. Sudha FBharadwaj is on “default bail” granted by the Bombay High Court on 1[st]September 2021. Petition for special leave to appeal against that orderwas rejected by a three-Judge Bench of this Court on 7[th] December2021. Gautam Navlakha, as per information made available before thisCourt, is under house arrest. Another supplementary chargesheet hasbeen submitted on 21[st] February 2019 by the State police implicating theGappellants, along with other co-accused persons for commission ofaforesaid offences under the 1967 Act and the 1860 Code. On 9[th] October2020, NIA had filed a further supplementary chargesheet against, inter-alia, Dr. Anand Teltumbde, Gautam Navlakha, Hany Babu, Sagar Gorkhe,Ramesh Gaichor, Jyoti Jagtap, Stan Swami (since deceased) and MilindHTeltumbde (since deceased) broadly under the same provisions of the 1860 Code and the 1967 Act. Barring deceased Milind Teltumbde, allthese individuals had been arrested. Among them, Dr. Anand Teltumbdehas been released on bail by the Bombay High Court and the judgmentto that effect was delivered on 18[th] November 2022. The petition forspecial leave to appeal against that decision has been dismissed by acoordinate Bench of this Court on 25[th] November 2022. VG, it transpiresfrom his pleadings, is a writer, columnist and has been vocal on issues ofhuman rights, prison rights and reform of the criminal justice system. AFhas described himself as a practising Advocate of the Bombay HighCourt as also a cartoonist and a human rights activist.

5. After the arrest of the appellants, a writ petition was filed beforethis Court [Writ Petition (Criminal) No. 260/2018- Romila Thaparand Ors. -vs- Union of India and Ors.]. One of the prayers in thispetition was for direction of immediate release of all activists arrested inconnection with the Bhima Koregaon violence. Direction was also soughtfor staying any arrest until the matter was fully investigated and decidedby this Court. That writ petition was dismissed on 28[th] September 2018(by a 2:1 majority). The majority view was that it was not a case ofarrest because of expression of mere dissenting views or difference inpolitical ideology of the named accused, but concerning their links withthe members of the banned organisation. At that stage, the Court did notgo into an exercise of evaluating the materials brought before it. Thisfinding or observation, however, cannot aid the prosecution in a regularapplication for bail, the appeals in respect of which we are adjudicating.The Court deciding on specific plea of the appellants for bail is requiredto independently apply its mind and examine the materials placed beforeit for determining the question of granting bail to the individual applicants.

6. As the charges against the appellants include commission ofoffences under different Sections of the 1967 Act, including those comingwithin Chapters IV and VI thereof, the restriction on grant of bail ascontained 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 Benchof this Court in the case of Union of India -vs- K.A. Najeeb [(2021) 3SCC 713] while examining the appellants’ cases in the backdrop of theaforesaid provision. In this judgment, it has been held that such statutoryrestrictions, per se, do not oust the jurisdiction of the Constitutional Courtsto grant bail on grounds of violation of Part III of the Constitution ofIndia and it would be within the jurisdiction of the Constitutional Courts, AB

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Ai.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 reasonabletime and the period of incarceration a detenue has already undergone,covers a substantial part of the prescribed sentences for the offenceswith which the latter has been charged. This ratio has been relied uponby the learned counsel for the appellants. Other authorities cited on thisBpoint are Thwaha Fasal -vs- Union of India [2021 SCC OnLine SC1000] and Angela Harish Sontakke -vs- State of Maharashtra [(2021)3 SCC 723]. On general proposition of law on the aspect of grant of baildue to delay in trial, the case of Sagar Tatyaram Gorkhe and Another-vs- State of Maharashtra [(2021) 3 SCC 725] has been relied upon.CIn course of hearing, we were apprised by the appellants’ counsel thatcharges against the appellants are yet to be framed.

7. We have referred to the case of Dr. Anand Teltumbde, whowas added as an accused in relation to the same case on 23[rd] August2018 and has subsequently enlarged on bail. His name, according to theDprosecution, had surfaced from digital devices and other articles seizedby the police, in the expanded phase of investigation. Dr. Anand Teltumbdehad surrendered on 14[th] April 2020 after his plea for pre-arrest bail wasrejected. Subsequently, however, he has been released on bail.

8. Arguments have been advanced before us on the question asEto whether mere membership of a banned organisation constitutes anoffence or not. On behalf of the appellants’ reliance was placed on theprevailing view that the same would not be sufficient to constitute anoffence under the 1967 Act or the Terrorist and Disruptive Activities(Prevention) Act, 1987 (which statute also has similar provisions) unlessit is accompanied with some overt offending act. A three Judge-BenchFof this Court in the case of Arup Bhuyan -vs- State of Assam andAnother [2023 SCC OnLine SC 338] has held that if a person, evenafter an organisation is declared as an unlawful association, continues tobe a member thereof, would attract penalty under Section 10 of the1967 Act.G9. Barring Section 13, all the offences with which the appellantshave been charged with under the 1967 Act fall within Chapters IV andVI of the said statute. This is apart from the offences under the 1860Code. Hence, there is a duty of the Court to form an opinion on perusalof the case diary or the report made under Section 173 of the Code ofHCriminal Procedure, 1973 (“1973 Code”) that there are reasonable grounds for believing that the accusations against such persons are prima facietrue while considering the prayer for bail, to reject prayers for bail of theappellants. The manner in which the Court shall form such opinion hasbeen laid down by this Court in the case of National InvestigationAgency -vs- Zahoor Ahmad Shah Watali [(2019) 5 SCC 1]. It hasbeen held in this judgment:- “23. By virtue of the proviso to sub-section (5), it is the dutyof the Court to be satisfied that there are reasonable groundsfor believing that the accusation against the accused is primafacie true or otherwise. Our attention was invited to thedecisions of this Court, which has had an occasion to dealwith similar special provisions in TADA and MCOCA. Theprinciple underlying those decisions may have some bearingwhile considering the prayer for bail in relation to theoffences under the 1967 Act as well. Notably, under the specialenactments such as TADA, MCOCA and the Narcotic Drugs andPsychotropic Substances Act, 1985, the Court is required torecord its opinion that there are reasonable grounds forbelieving that the accused is “not guilty” of the allegedoffence. There is a degree of difference between thesatisfaction to be recorded by the Court that there arereasonable grounds for believing that the accused is “notguilty” of such offence and the satisfaction to be recordedfor the purposes of the 1967 Act that there are reasonablegrounds for believing that the accusation against such personis “prima facie” true. By its very nature, the expression “primafacie true” would mean that the materials/evidence collatedby the investigating agency in reference to the accusationagainst the accused concerned in the first information report,must prevail until contradicted and overcome or disprovedby other evidence, and on the face of it, shows the complicityof such accused in the commission of the stated offence. Itmust be good and sufficient on its face to establish a givenfact or the chain of facts constituting the stated offence, unlessrebutted or contradicted. In one sense, the degree ofsatisfaction is lighter when the Court has to opine that theaccusation is “prima facie true”, as compared to the opinionof the accused “not guilty” of such offence as required underthe other special enactments. In any case, the degree of AB

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satisfaction to be recorded by the Court for opining that thereare reasonable grounds for believing that the accusationagainst the accused is prima facie true, is lighter than thedegree of satisfaction to be recorded for considering adischarge application or framing of charges in relation tooffences under the 1967 Act. Nevertheless, we may takeguidance from the exposition in Ranjitsing BrahmajeetsingSharma v. State of Maharashtra, [(2005) 5 SCC 294 : 2005SCC (Cri) 1057], wherein a three-Judge Bench of this Courtwas called upon to consider the scope of power of the Courtto grant bail. In paras 36 to 38, the Court observed thus :(SCC pp. 316-17)

“36. Does this statute require that before a person isreleased on bail, the court, albeit prima facie, must cometo the conclusion that he is not guilty of such offence? Is itnecessary for the court to record such a finding? Wouldthere be any machinery available to the court to ascertainthat once the accused is enlarged on bail, he would notcommit any offence whatsoever?

37. Such findings are required to be recorded only for thepurpose of arriving at an objective finding on the basis ofmaterials on record only for grant of bail and for no otherpurpose.

38. We are furthermore of the opinion that the restrictionson the power of the court to grant bail should not be pushedtoo far. If the court, having regard to the materials broughton record, is satisfied that in all probability he may not beultimately convicted, an order granting bail may be passed.The satisfaction of the court as regards his likelihood ofnot committing an offence while on bail must be construedto mean an offence under the Act and not any offencewhatsoever be it a minor or major offence. … What wouldfurther be necessary on the part of the court is to see theculpability of the accused and his involvement in thecommission of an organised crime either directly orindirectly. The court at the time of considering theapplication for grant of bail shall consider the question from the angle as to whether he was possessed of therequisite 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, doesnot lead to the conclusion that the court must arrive at apositive finding that the applicant for bail has not committedan offence under the Act. If such a construction is placed,the court intending to grant bail must arrive at a findingthat the applicant has not committed such an offence. Insuch an event, it will be impossible for the prosecution toobtain a judgment of conviction of the applicant. Suchcannot be the intention of the legislature. Section 21(4)of MCOCA, therefore, must be construed reasonably. It mustbe so construed that the court is able to maintain a delicatebalance between a judgment of acquittal and convictionand an order granting bail much before commencement oftrial. Similarly, the court will be required to record a findingas to the possibility of his committing a crime after grantof bail. However, such an offence in futuro must be anoffence under the Act and not any other offence. Since itis difficult to predict the future conduct of an accused, thecourt must necessarily consider this aspect of the matterhaving regard to the antecedents of the accused, hispropensities and the nature and manner in which he isalleged to have committed the offence.

45. It is, furthermore, trite that for the purpose ofconsidering an application for grant of bail, althoughdetailed reasons are not necessary to be assigned, the ordergranting bail must demonstrate application of mind at leastin serious cases as to why the applicant has been grantedor denied the privilege of bail.

46. The duty of the court at this stage is not to weigh theevidence meticulously but to arrive at a finding on the basisof broad probabilities. However, while dealing with aspecial statute like MCOCA having regard to the provisionscontained in sub-section (4) of Section 21 of the Act, the A

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court may have to probe into the matter deeper so as toenable it to arrive at a finding that the materials collectedagainst the accused during the investigation may not justifya judgment of conviction. The findings recorded by thecourt while granting or refusing bail undoubtedly wouldbe tentative in nature, which may not have any bearing onthe merit of the case and the trial court would, thus, befree to decide the case on the basis of evidence adducedat the trial, without in any manner being prejudiced thereby.

47. In Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004)7 SCC 528 : 2004 SCC (Cri) 1977] this Court observed :(SCC pp. 537-38, para 18)

‘18. We agree that a conclusive finding in regard to thepoints urged by both the sides is not expected of the courtconsidering a bail application. Still one should not forget,as observed by this Court in Puran v. Rambilas [(2001) 6SCC 338: 2001 SCC (Cri) 1124] : (SCC p. 344, para 8)

“8. …Giving reasons is different from discussing meritsor demerits. At the stage of granting bail a detailedexamination of evidence and elaborate documentationof the merits of the case has not to be undertaken. …That did not mean that whilst granting bail some reasonsfor prima facie concluding why bail was being granteddid not have to be indicated.”

We respectfully agree with the above dictum of this Court. Wealso feel that such expression of prima facie reasons forgranting bail is a requirement of law in cases where suchorders on bail application are appealable, more so becauseof the fact that the appellate court has every right to knowthe basis for granting the bail. Therefore, we are not inagreement with the argument addressed by the learned counselfor the accused that the High Court was not expected even toindicate a prima facie finding on all points urged before itwhile granting bail, more so in the background of the facts ofthis case where on facts it is established that a large numberof witnesses who were examined after the respondent wasenlarged on bail had turned hostile and there are complaintsmade to the court as to the threats administered by the respondent or his supporters to witnesses in the case. In suchcircumstances, the court was duty-bound to apply its mind tothe allegations put forth by the investigating agency and oughtto have given at least a prima facie finding in regard to theseallegations because they go to the very root of the right ofthe accused to seek bail. The non-consideration of these vitalfacts as to the allegations of threat or inducement made tothe witnesses by the respondent during the period he was onbail has vitiated the conclusions arrived at by the High Courtwhile granting bail to the respondent. The other ground apartfrom the ground of incarceration which appealed to the HighCourt to grant bail was the fact that a large number ofwitnesses are yet to be examined and there is no likelihood ofthe trial coming to an end in the near future. As statedhereinabove, this ground on the facts of this case is also notsufficient either individually or coupled with the period ofincarceration to release the respondent on bail because ofthe serious allegations of tampering with the witnesses madeagainst the respondent.’

48. In Jayendra Saraswathi Swamigal v. State of T.N. (2005)2 SCC 13 : 2005 SCC (Cri) 481] this Court observed [(SCCpp. 21-22, para 16)]

‘16. … The considerations which normally weigh with thecourt in granting bail in non-bailable offences have beenexplained by this Court in State v. Jagjit Singh [(1962) 3SCR 622 : AIR 1962 SC 253 : (1962) 1 Cri LJ 215]and Gurcharan Singh v. State (UT of Delhi) [(1978) 1 SCC118 : 1978 SCC (Cri) 41] and basically they are — thenature and seriousness of the offence; the character ofthe evidence; circumstances which are peculiar to theaccused; a reasonable possibility of the presence of theaccused not being secured at the trial; reasonableapprehension of witnesses being tampered with; the largerinterest of the public or the State and other similar factorswhich may be relevant in the facts and circumstances ofthe case.’”

10. We shall first deal with the argument of the appellants that theaccusations against the appellants under the Sections which fall within ABCD

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AChapters IV and VI of the 1967 Act cannot lead to a prima faciesatisfaction of the Court that such accusations are true and the availableevidences at this stage do not fit the ingredients of these restrictiveprovisions. The nature of the accusations to invoke the bail-restrictingclause has been stated in the supplementary chargesheet in which theappellants were implicated. The counter-affidavits also contain printouts/Bcopies of several letters and documents. In the case of VG, the Agencyhas relied upon the statement of a protected witness who has disclosedthat he had met VG in the year 2002. Referring to a time-length between2002 and 2007, he has stated that during that period, both VG and AFwere members of the Maharashtra State Committee of the said party. ItCis also stated by the protected witness that, in 2002 VG wanted to resignfrom the party but his resignation was not accepted.

11. Before embarking on this exercise, we reproduce below thefollowing provisions of the 1967 Act, the application of which we shallhave to examine in respect of the appellants: - D

“2. Definitions.- (1) In this Act, unless the context otherwiserequires,- xxxxxxxxxxx (k) “terrorist act” has the meaning assigned to it in sectionE15, and the expressions “terrorism” and “terrorist” shall beconstrued accordingly; xxxxxxxxxxx (m) “terrorist organisation” means an organisationlisted in the [First Schedule] or an organisation operatingFunder the same name as an organisation so listed;

13. Punishment for unlawful activities.—(1) Whoever—

(a) takes part in or commits, or

(b) advocates, abets, advises or incites the commission of,Gany unlawful activity, shall be punishable withimprisonment 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 anyassociation declared unlawful under section 3, after theHnotification by which it has been so declared has become effective under sub-section (3) of that section, shall bepunishable with imprisonment for a term which may extend tofive years, or with fine, or with both.

(3) Nothing in this section shall apply to any treaty, agreementor convention entered into between the Government of Indiaand the Government of any other country or to anynegotiations therefor carried on by any person authorised inthis behalf by the Government of India.

15. Terrorist act.— (1) Whoever does any act with intent tothreaten or likely to threaten the unity, integrity, security, economicsecurity or sovereignty of India or with intent to strike terror orlikely to strike terror in the people or any section of the people inIndia or in any foreign country,—

(a) by using bombs, dynamite or other explosive substancesor inflammable substances or firearms or other lethalweapons or poisonous or noxious gases or other chemicalsor by any other substances (whether biological radioactive,nuclear or otherwise) of a hazardous nature or by anyother means of whatever nature to cause or likely tocause—

(i) death of, or injuries to, any person or persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to thelife of the community in India or in any foreign country;or (iiia) damage to, the monetary stability of India by way ofproduction or smuggling or circulation of high qualitycounterfeit Indian paper currency, coin or of any othermaterial; or

(iv) damage or destruction of any property in India or in aforeign country used or intended to be used for the defenceof India or in connection with any other purposes of theGovernment of India, any State Government or any of theiragencies; or A

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(b) overawes by means of criminal force or the show ofcriminal force or attempts to do so or causes death of anypublic functionary or attempts to cause death of any publicfunctionary; or A

(c) detains, kidnaps or abducts any person and threatens tokill or injure such person or does any other act in order tocompel the Government of India, any State Government orthe Government of a foreign country or [an international orinter-governmental organisation or any other person to door abstain from doing any act; or] commits a terrorist act.

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(a) “public functionary” means the constitutionalauthorities or any other functionary notified in the OfficialGazette by the Central Government as public functionary; (b) “high quality counterfeit Indian currency” means thecounterfeit currency as may be declared after examinationby an authorised or notified forensic authority that suchcurrency imitates or compromises with the key securityfeatures as specified in the Third Schedule.]

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(2) The terrorist act includes an act which constitutes anoffence within the scope of, and as defined in any of thetreaties specified in the Second Schedule.

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16. Punishment for terrorist act.—(1) Whoever commits aterrorist act shall,—

(a) if such act has resulted in the death of any person, bepunishable with death or imprisonment for life, and shallalso be liable to fine; F

(b) in any other case, be punishable with imprisonmentfor a term which shall not be less than five years but whichmay extend to imprisonment for life, and shall also be liableto fine.

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17. Punishment for raising funds for terrorist act.—Whoever,in India or in a foreign country, directly or indirectly, raisesor provides funds or collects funds, whether from a legitimateor illegitimate source, from any person or persons or attempts H

to provide to, or raises or collects funds for any person orpersons, knowing that such funds are likely to be used, infull or in part by such person or persons or by a terroristorganisation or by a terrorist gang or by an individual terroristto commit a terrorist act, notwithstanding whether such fundswere actually used or not for commission of such act, shallbe punishable with imprisonment for a term which shall notbe less than five years but which may extend to imprisonmentfor life, and shall also be liable to fine.

Explanation.—For the purpose of this section,—

(a) participating, organising or directing in any of the actsstated therein shall constitute an offence;

(b) raising funds shall include raising or collecting orproviding funds through production or smuggling orcirculation of high quality counterfeit Indian currency; and(c) raising or collecting or providing funds, in any mannerfor the benefit of, or, to an individual terrorist, terrorist gangor terrorist organisation for the purpose not specificallycovered under section 15 shall also be construed as anoffence.

18. Punishment for conspiracy, etc.—Whoever conspires orattempts to commit, or advocates, abets, advises or incites,directs or knowingly facilitates the commission of, a terroristact or any act preparatory to the commission of a terroristact, shall be punishable with imprisonment for a term whichshall not be less than five years but which may extend toimprisonment for life, and shall also be liable to fine.

18A. Punishment for organising of terrorist camps.—Whoeverorganises or causes to be organised any camp or camps forimparting training in terrorism shall be punishable withimprisonment for a term which shall not be less than five yearsbut which may extend to imprisonment for life, and shall alsobe liable to fine.

18B. Punishment for recruiting of any person or persons forterrorist act.—Whoever recruits or causes to be recruited anyperson or persons for commission of a terrorist act shall be AB

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punishable with imprisonment for a term which shall not beless than five years but which may extend to imprisonmentfor life, and shall also be liable to fine.

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20. Punishment for being member of terrorist gang ororganisation.—Any person who is a member of a terrorist gangBor a terrorist organisation, which is involved in terrorist act,shall be punishable with imprisonment for a term which mayextend to imprisonment for life, and shall also be liable tofine.

38. Offence relating to membership of a terroristorganisation.—(1) A person, who associates himself, orprofesses to be associated, with a terrorist organisation withintention to further its activities, commits an offence relatingto membership of a terrorist organisation:

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(a) that the organisation was not declared as a terroristorganisation at the time when he became a member or beganto profess to be a member; and (b) that he has not taken part in the activities of theEorganisation at any time during its inclusion in the FirstSchedule as a terrorist organisation.

(2) A person, who commits the offence relating to membershipof a terrorist organisation under sub-section (1), shall bepunishable with imprisonment for a term not exceeding tenFyears, or with fine, or with both.

39. Offence relating to support given to a terroristorganisation.—(1) A person commits the offence relating tosupport given to a terrorist organisation,—

(a) who, with intention to further the activity of a terroristorganisation,—

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(i) invites support for the terrorist organization, and

(ii) the support is not or is not restricted to provide money orother property within the meaning of section 40; or H

(b) who, with intention to further the activity of a terroristorganisation, arranges, manages or assists in arranging ormanaging a meeting which he knows is—

(i) to support the terrorist organization, or

(ii) to further the activity of the terrorist organization, or

(iii) to be addressed by a person who associates or professesto be associated with the terrorist organisation; or

(c) who, with intention to further the activity of a terroristorganisation, addresses a meeting for the purpose ofencouraging support for the terrorist organisation or tofurther its activity.

(2) A person, who commits the offence relating to supportgiven to a terrorist organisation under sub-section (1) shallbe punishable with imprisonment for a term not exceedingten years, or with fine, or with both.

40. Offence of raising fund for a terrorist organisation.—(1)A person commits the offence of raising fund for a terroristorganisation, who, with intention to further the activity of aterrorist organisation,—

(a) invites another person to provide money or other property,and intends that it should be used, or has reasonable causeto suspect that it might be used, for the purposes of terrorism;or (b) receives money or other property, and intends that it shouldbe used, or has reasonable cause to suspect that it might beused, for the purposes of terrorism; or

(c) provides money or other property, and knows, or hasreasonable cause to suspect, that it would or might be usedfor the purposes of terrorism.

Explanation.—For the purposes of this sub-section, areference to provide money or other property includes—

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(b) raising, collecting or providing funds throughproduction or smuggling or circulation of high qualitycounterfeit Indian currency.

(2) A person, who commits the offence of raising fund fora terrorist organisation under sub-section (1), shall bepunishable with imprisonment for a term not exceedingfourteen years, or with fine, or with both.

—43D. Modified application of certain provisions of the Code.(1) Notwithstanding anything contained in the Code or anyother law, every offence punishable under this Act shall bedeemed to be a cognizable offence within the meaning ofclause (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 caseinvolving an offence punishable under this Act subject to themodification that in sub-section (2),—

(a) the references to “fifteen days”, “ninety days” and “sixtydays”, wherever they occur, shall be construed as referencesto “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 not possible to complete theinvestigation within the said period of ninety days, the Courtmay if it is satisfied with the report of the Public Prosecutorindicating the progress of the investigation and the specificreasons for the detention of the accused beyond the saidperiod of ninety days, extend the said period up to one hundredand eighty days:

Provided also that if the police officer making the investigationunder this Act, requests, for the purposes of investigation,for police custody from judicial custody of any person injudicial custody, he shall file an affidavit stating the reasonsfor doing so and shall also explain the delay, if any, forrequesting such police custody.

(3) Section 268 of the Code shall apply in relation to a caseinvolving an offence punishable under this Act subject to themodification that—

(a) the reference in sub-section (1) thereof

(i) to “the State Government” shall be construed as a referenceto “the Central Government or the State Government.”;

(ii) to “order of the State Government” shall be construed asa reference to “order of the Central Government or the StateGovernment, as the case may be”; and (b) the reference in sub-section (2) thereof, to ‘the StateGovernment” shall be construed as a reference to “the CentralGovernment or the State Government, as the case may be”.

(4) Nothing in section 438 of the Code shall apply in relationto any case involving the arrest of any person accused ofhaving committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no personaccused of an offence punishable under Chapters IV and VIof this Act shall, if in custody, be released on bail or on hisown bond unless the Public Prosecutor has been given anopportunity of being heard on the application for such release:

Provided that such accused person shall not be released onbail or on his own bond if the Court, on a perusal of the case diaryor the report made under section 173 of the Code is of the opinionthat there are reasonable grounds for believing that the accusationagainst such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or anyother law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accusedof an offence punishable under this Act, if he is not an Indian citizenand has entered the country unauthorisedly or illegally except invery exceptional circumstances and for reasons to be recorded inwriting.”

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12. Allegations against these two appellants appear, inter-alia, fromparagraphs 17.5, 17.9, 17.10, 17.11, 17.15 17.18 and 17.19 of the firstsupplementary chargesheet. These paragraphs from the chargesheetdated 21[st] February 2019 are quoted below:- A

“17.5 During the investigation of this crime it emerged thatthe activity of the accused in this was not limited to onlycreating antagonism between two sections but they were alsodoing other destructive acts against the country. AccusedSudhir Dhawale, Rona Wilson, Surendra Gadling, MaheshRaut and Shoma sen had done unlawful and terrorist acts inaccordance with a pre-planned plot by and on behalf of thebanned organization C.P.I (Maoist) , a large country wideconspiracy to overthrow through force of violence theconstitutionality established democracy and administrativesystem in the country. It has also emerged that the presentcrime is also one part of this conspiracy.

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Since the participation of accused No.1 Varavara Rao,No.2 Vernon Gonsalves, No.3 Arun Ferreira, No.4 SudhaBharadwaj and other accused in the said conspiracy of thebanned organization C.P.I (Maoist) became clear, theirresidences and those places from where evidence couldpossibly be obtained were searched on 28/08/2018.

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17.9 It has emerged that accused No.2 Vernon Gonsalves No.3Arun Ferreira and No.4 Sudha Bharadwaj along with otheraccused have recruited members for the banned terroristorganization. They are also active members of the said bannedForganization and have fulfilled the objectives of the bannedorganization by doing propaganda and dissemination throughthe medium of frontal organization with the ideology of theorganization.

17.10 Accused No.2 Vernon Gonsalves has been convictedand sentenced by the Hon’ble Court of Session , Nagpur inC.R.No.10/2007 offence u/s 10,13,16,17,18,20,23,40(2)Unlawful Activities (Prevention) Act, 25(1-B) Arms Act, 6,9(b)Explosives Act, 4(b), 5 Explosive Substances act 120-B, 121-A IPC of A.T.S. Kala Chowky Police Station , Mumbai. Hehas accordingly served the sentence. Accused Vernon G

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Gonsalves Unlawful Activities as member of bannedorganization have been going on continuously.

17.11 During investigation of the said crime it has emergedthat I.A.P.L (Indian Association of People’s Lawyers) is afrontal organization of the banned organization C.P.I (Maoist)and is working according to the organization’s direction andorders and with its economic backing to fulfill the objectivesof the banned organization. Accused no.3 Arun Ferreira ,No.4 Sudha Bharadwaj and Surendra Gadling are membersof the said frontal organization. They along with other accusedhave made conscious attempts to spread this frontalorganization. By doing various unlawful activities throughthe medium of this frontal organization they have endangeredthe stability of the country.

17.15. Thus accused nos. 01 to 04 and other accused aremembers of the banned terrorist organization CPI (Maoist).All work related to this organization is done by these accusedis an underground manner. It has emerged from the evidenceobtained that frontal organization which supposedly promotedemocratic rights and civil liberties, such as IndianAssociation of People’s Lawyers (I.A.P.L) , Anuradha GhandyMemorial Committee (A.G.M.C), Kabir Kala Manch,Persecuted Prisoners Solidarity Committee (P.P.S.C) are setup or similar organizations are infiltrated in as systematicmanner and under their cover the work related to the terroristorganization C.P.I (Maoist) is being accomplished is anextremely secret manner.

17.18. During the Investigation it has emerged that the accusedNo.01 to 04 in this offence and other accused have workedas part of a pre-planned conspiracy devised by the bannedorganisation C.P.I. (Maoist), a large, countrywide plot andconspiracy to overthrow by force of violence the democraticadministrative system established under the country’sconstitution. It emerged that the organisation C.P.I. (Maoist)and the members of the organisation in this offence havehatched the conspiracy of this offence.

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A17.19. Accused no.1 in the said offence Varavara Rao,Accused Rona Wilson and Surendra Gadling along with thePolit Bureau and Central Committee and other undergroundmembers of the banned terrorist organisation C.P.I.(Maoist)hatched a criminal conspiracy and obtained the participationof the accused no.02 Vernon Gonsalves, accused no.3 ArunBFerreira and accused no.04 Sudha Bharadwaj in the saidconspiracy and got them to participate as active members ofthe banned C.P.I. (Maoist) organisation banned by theGovernment of India for the continuation of Unlawful Activity,for exchange of messages, for the implementation of the goalsCand policies of the said unlawful organisation by planningand convening sittings along with them as also to help theirunlawful activities. In same manner it has emerged that harddisks, pendrives, memory cards, mobiles, etc. seized duringthe house search of accused no.1 Varavara Rao, SurendraGadling and Rona Wilson contained correspondence, papers,Dphotographs, etc. related to the banned CPI(Maoist)organisation as also that they attempted in different ways toimplement the goals, policies and objectives of the saidorganisation. It also emerged that they attempted in differentways to do acts against the country to overthrow theEdemocratic and lawful administrative system through themedium of frontal organisations established on behalf of thebanned organisation in urban areas.”

(quoted verbatim from paperbook)

(quoted verbatim from paperbook)

13. In the first statement, the protected witness who appears toFhave had been associated with Maoist movement claims to have metVG in the year 2002 as we have already indicated. He has spoken of atimeline between 2002 to 2007. According to him, at that time VG andAF were members of the Maharashtra State Committee, presumably ofCPI (Maoist) organisation. This statement was recorded on 27[th] JanuaryG2019 by an Assistant Commissioner of Pune Police. The protected witnesshas made another statement on 27[th] July 2020 before the police in whichhe has referred to participation of AF in a seminar of RevolutionaryDemocratic Front in Hyderabad in the year 2012 and VG in September2017 by an organisation referred to as “Virasam”. These were alsobroadly repeated in his statement before a Magistrate recorded underH

Section 164 of the 1973 Code on 28[th] July 2020. The prosecution hasalso relied on statements made by one Kumarsai, who appears to havebeen associated with the same organisation. Such statements appear tohave been made on 2[nd] November 2018 and 23[rd] December 2018. Hehas stated that he had personally never seen VG but according to him,VG was doing the work of uniting intellectuals. About AF, he is allegedto have said that he was “intruding” in student organisations and creatingcadre, who were being sent to forests. He also claims to have met AF inthe 2003-2007 phase. The third witness, whose statements have alsobeen relied upon by the prosecution agency is one Sudarshan SatyadeoRamteke. He has referred to another Arun (Arun Bhelke) in hisstatement, whom he had met while working for an organisation inChandrapur. He also declared himself as a party associate in hisstatement, and claims to have had been introduced to AF by anotherperson. He has alleged that AF, Milind Teltumbde and Anil Nagpure hadasked him to work with the said organisation.

14. VG has been earlier implicated in 19 cases for alleged crimesunder 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 beenacquitted in 17 out of these 19 cases. In respect of another case, hisdischarge application is pending. He was convicted in Case No.257/11by the Sessions Judge, Nagpur under Section 25 (1B) of the Arms Act1959, Sections 10(a)(i) and 13(1)(b) of the 1967 Act. There were chargesagainst him also under Section 9(B) of the Explosives Act 1884, Sections4(b) and 5 of the Explosives Substances Act, 1908 and Sections 10(a)(ii)(iii)(iv), 10(b), 16, 17, 18, 20 and 23 of the 1967 Act and Sections120B and 121A of 1860 Code. It has been emphasised by learned counselfor VG that his conviction is under appeal before the High Court, andthe offences for which he has been convicted do not fall within offencesincorporated in Chapters IV and VI of the 1967 Act. The other case isSessions Case No.261/10 pending before the Sessions Court at Surat.

15. The prosecution has referred to some letters alleged to havebeen recovered from the computers or other devices of the co-accusedpersons in which activities of the two appellants have been referred to.We shall deal with these communications in the subsequent paragraphsof this judgment. Under ordinary circumstances in a petition for bail, wemust point out, this exercise of analysis of evidence would not havebeen necessary. But in view of the restrictive provisions of Section 43D

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Aof the 1967 Act, some element of evidence-analysis becomes inevitable.

16. The High Court in dealing with both these appeals had opinedthat the Investigating Agency had materials which prima facie showedthat the applicants were part of a larger conspiracy attracting the offencescontained in Sections 121A, 117 and 120B of the 1860 Code as well asBSection 18 of the 1967 Act against them. The High Court had invokedthe allegations of recruiting cadres for the banned organisation, to importthe provisions of Section 18B of the 1967 Act. It further invoked Section20 of the same statute on the ground that the appellants had been activemembers of the banned organisation. In the same way, the view of theHigh Court was that Sections 38 and 39 of the 1967 Act were attractedCagainst the appellants. The High Court found that there were sufficientmaterials in the chargesheet against the appellants and there werereasonable grounds to believe that the accusation of commission ofoffences punishable under Chapters IV and VI of the 1967 Act wasprima facie true in relation to both the appellants. The High Court,Dhowever, did not take into consideration, the factor of the appellants’continued detention. But the judgment of the High Court was deliveredon 15[th] October 2019, when the appellants were in detention for a periodlittle over one year.

17. The NIA has also referred to a set of letters which are allegedEto have been recovered from electronic devices of the co-accusedpersons in course of searches. The other set of documents on which theNIA has placed reliance, are literatures, pamphlets etc. some of whichare meant to have been recovered from the residences of the appellantsthemselves. So far as the aforesaid letters are concerned, copies thereofhave been annexed to the courter-affidavits of the NIA filed in connectionFwith both the appeals. We shall refer to them in this judgment in the waythey have been described numerically as annexures in NIA’s counter-affidavit in the appeal of AF. The first document is an undated letteraddressed to Surendra, from an unnamed sender, marked as Annexure“R-6”. This letter is claimed to have been recovered from the computerGof one of the co-accused and refers to Radical Student Union initiativeby AF and VG. This letter requests the addressee to ask Arun to managefinances for legal defence of one Murgan. There is further reference totwo other individuals who apparently have been inspired by the strugglesof AF and VG.

18. The second document is a letter dated 18[th] April 2017, markedas Annexure “R-10”, addressed to one “Comrade Prakash” and isclaimed to have been written by “R”. Prosecution claims “R” is RonaWilson. Only reference to the two appellants in this document is thatthey, and others were equally concerned about the “two-line struggle”that was slowly taking shape on the urban front. The source of this letterhas not been disclosed in the counter-affidavit. From the content of thisletter, the Agency wants to establish that the appellants were seniorleaders of the banned organisation.

19. The third document is a letter dated 25[th] September 2017,marked as Annexure “R-12”, written by “Comrade Prakash”, which isclaimed to have been recovered from the computer of Surendra Gadlingand addressee thereof is “Comrade Surendra”. Here also there isappreciation of activities of ‘Vernon’ and ‘Arun’ in motivating researchscholars to get them involved in the revolutionary movement. About VG,it is recorded that one “Comrade G” has been asked to arrange APT tomeet with Vernon.

20. As regards AF, his name appears in an undated letter, markedas Annexure “R-4”, addressed to Surendra by Darsu, which refers toorganisation of a joint meeting by the addressee and Arun in Hyderabad.The next letter is purported to have been written to Prakash by Surendraon 5[th] November 2017 and is marked as Annexure “R-5”. It refers toestablishing Indian Association of People’s Lawyer (“IAPL”) in Keralafor which discussion was held with Arun. According to the Agency,IAPL – a lawyer’s body is a frontal organisation of the bannedorganisation. This communication records a proposed visit to Kerala onInternational Human Rights Day by AF and the author thereof. This isfollowed by a further communication from Prakash to Surendra dated16[th] July 2017 (“R-7”). This letter records a proposed visit of Arun toChennai in connection with release of a detained party member as alsoraising of funds for the legal defence of detained persons. Here also,there is appreciation of AF and VG’s work. The next letter at Annexure“R-22” is claimed to have been written by Sudha Bharadwaj to Prakashand this letter relates to a seminar titled “Udta Loktantra against theUAPA Act” in which Arun was to participate. Lastly there is a letter atAnnexure “R-14” written by one Anantwa to Comrade Monibai whichrelates to the celebration of 50[th] Anniversary of the Great Proletarianrevolution and Naxalites organisation in Mumbai (Bombay) and records AB

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Athat the party had sent revolutionary greetings to Comrades of variousassociations, including the appellant, Arun.

21. There is also a reference to an account statement alleged bythe prosecution to have been recovered from the laptop of Rona Wilson(Annexure “R-3”). We reproduce below this statement in the same formBas 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 CAnd 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.”D

22. Apart from these letters and statements, various literatures,books etc. have been referred to by the prosecution which they claim tohave recovered from the residences of AF and VG. These mainly involvewritings on extreme left-wing ideology including its application to India.Similar materials are alleged to have been recovered from other accusedEpersons as well. Recovery of different electronic communication deviceslike Mobile Phones, Tablets, Pen Drives and ancillary items is alleged tohave been made. From these devices themselves, however, no evidencehas been cited before us which would implicate AF and VG in terroristacts and the other offences barring the letters on which emphasis hasbeen laid by the agency. We have already referred to the letters whichFthe law enforcement agency alleges to have recovered from the devicesof other accused persons in which there are references to AF and VG.Call Detail Records have also been referred to for establishing locationof the accused and also their inter-association.

23. In pursuance of the judgment of this Court in the case ofGZahoor Ahmad Shah Watali (supra) the documents relied upon by theprosecution at this stage ought to prevail until overcome or disproved byother evidences. In the case of Dr. Anand Teltumbde -vs- NationalInvestigation Agency and Another [2022 SCC OnLine Bom 5174]allegations were similar in nature against the petitioner therein. He wasHcharged with all the Sections of the 1967 Act as has been done in the

cases of AF and VG except Section 40. The Bombay High Court by ajudgment delivered on 18[th] November 2022 had enlarged him on bail.The NIA’s petition for special leave to appeal [SLP(Crl) No. 11345/2022] against that judgment was dismissed by a Coordinate Bench ofthis Court on 25[th] November 2022.

24. As it would be evident from the analysis of the evidence citedby the NIA, the acts allegedly committed by the appellants can becategorised under three heads. The first is their association with a terroristorganisation which the prosecution claims from the letters and witnessstatements, particulars of which we have given above. But what wemust be conscious of, while dealing with prima facie worth of thesestatements and documents is that none of them had been seized orrecovered from the appellants but these recoveries are alleged to havebeen made from the co-accused. The second head of alleged offensiveacts of the appellants is keeping literatures propagating violence andpromoting overthrowing of a democratically elected government througharmed struggle. But again, it is not the NIA’s case that either of the twoappellants is the author of the materials found from their residences, asalleged. None of these literatures has been specifically proscribed so asto constitute an offence, just by keeping them. Thirdly, so far as AF isconcerned, some materials point to handling of finances. But suchfinances, as per the materials through which the dealings are sought tobe established, show that the transaction was mainly for the purpose oflitigation on behalf of, it appears to us, detained party persons. Theformation of or association with a legal front of the banned terroristorganisation has also been attributed to AF, in addition. The High Courtwhile analysing each of these documents individually did not opine thatthere were reasonable grounds for believing that the accusations againstsuch persons were not prima facie true. Those offences which comewithin Chapters IV and VI of the 1967 Act, charged against theappellants, are Sections 16, 17, 18, 18B, 20, 38, 39 and 40. We havesummarised the nature of allegations reflected in the chargesheet asalso the affidavit of the NIA. Now we shall have to ascertain if on thebasis of these materials, the prosecution has made out reasonable groundsto persuade the Court to be satisfied that the accusations against theappellants are prima facie true. There is charge under Section 13 of the1967 Act and certain offences under the 1860 Code against the appellantsalso. But we shall first deal with the appellants’ case in relation to chargesmade against them under the aforesaid provisions.

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A25. Section 16 prescribes punishment for committing terrorist actand terrorist act has been defined in Section 15 of the 1967 statute. Wehave reproduced these provisions earlier in this judgment.

26. In none of the materials which have been referred to by theprosecution, the acts specified to in sub-clause (a) of Section 15(1) ofBthe 1967 Act can be attributed to the appellants. Nor there is any allegationagainst them which would attract sub-clause (c) of Section 15(1) of thesaid statute. As regards the acts specified in Section 15(1) (b) thereof,some of the literature alleged to have been recovered from the appellants,by themselves give hint of propagation of such activities. But there isnothing against the appellants to prima facie establish that they hadCindulged in the activities which would constitute overawing any publicfunctionary by means of criminal force or the show of criminal force orattempts by the appellants to do so. Neither there is allegation againstthem of causing death of any public functionary or attempt to causedeath of such functionary. Mere holding of certain literatures throughDwhich violent acts may be propagated would not ipso facto attract theprovisions of Section 15(1)(b) of the said Act. Thus, prima facie, in ouropinion, we cannot reasonably come to a finding that any case againstthe appellants under Section 15(1) (b) of 1967 Act can be held to betrue.

E27. Section 17 of the 1967 Act deals with punishment for raisingfunds for terrorist acts. Here also the funds, dealing with which hasbeen attributed to AF, cannot be connected to any terrorist act. In thecase of Dr. Anand Teltumbde (supra) the same account statementwas referred to. In respect of such allegations against Dr. AnandTeltumbde the Bombay High Court came to the following finding:-F

“42. Mr. Patil has vehemently argued that this statement fromthe earlier letter supports receipt of monies i.e. Rs. 90,000/-by Anand T. (Appellant) from Surendra (accused No. 3) whowas authorized to provide funds for future programmes. Oncareful reading of the earlier letter dated 02.01.2018 andGthe aforementioned statement of account it is seen that thereis a fallacy in the argument of NIA. Assuming that Anand T. isthe Appellant himself and he received Rs. 90,000/- fromSurendra through Milind, firstly it cannot be linked to thestatement in the earlier letter dated 02.01.2018 since thisaccount statement pertains to the year 2016 and or 2017.

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The document has a heading; viz; Party fund received in lastyear from C.C. Last year would invariably mean the accountof 2016 as the title of this document is “Accounts2K17” whichwould mean Accounts for 2017". That apart requiring us topresume that Anand T. is the Appellant would require furthercorroboration and evidence. prima facie it appears that, thesame has not been brought on record. This document isunsigned and has been recovered from the laptop one of theco-accused. Hence, at this prima facie stage we cannotpresume that Anand T. i.e. the Appellant received Rs. 90,000/- from Surendra Gadling as argued by NIA. We are afraid tostate that we cannot agree with NIA’s contention.”

(emphasis added)

(emphasis added)

28. Here we must point out that there is also a request made toSurendra from an unnamed person to ask AF to manage the financialexpenses of “these cases”. The name of another Arun, with the surnameBhelke has surfaced in Annexure “R-19” to the NIA’s counter-affidavitin AF’s case. This is a copy of a witness statement. In absence of anyform of corroboration at the prima facie stage it cannot be presumedthat it was the same Arun (i.e., AF) who had received money fromDarsu. The prosecution has also not produced any material to show thatactual money was transmitted. The communication dated 5[th] November2017 (“R-5”), purportedly addressed by Surendra to Prakash does notspeak of any payment being made to AF. The rationale applied by theBombay High Court in the above-quoted passage of the judgment in thecase of Dr. Anand Teltumbde (supra), which has been sustained bythis Court, ought to apply in the case of AF as well.

29. We have already observed that it is not possible for us to forman opinion that there are reasonable grounds for believing that theaccusation against the appellant of committing or conspiring to committerrorist act is prima facie true. The witness statements do not refer toany terrorist act alleged to have been committed by the appellants. Thecopies of the letters in which the appellants or any one of them havebeen referred, record only third-party response or reaction of theappellants’ activities contained in communications among differentindividuals. These have not been recovered from the appellants. Hence,these communications or content thereof have weak probative value orquality. That being the position, neither the provisions of Section 18 nor AB

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A18B can be invoked against the appellants, prima facie, at this stage.The association of the appellants with the activities of the designatedterrorist organisation is sought to be established through third partycommunications. Moreover, actual involvement of the appellants in anyterrorist act has not surfaced from any of these communications. Northere is any credible case of conspiracy to commit offences enumeratedBunder chapters IV and VI of the 1967 Act. Mere participation in seminarsby itself cannot constitute an offence under the bail-restricting Sectionsof the 1967 Act, with which they have been charged.

30. So far as application of Section 20 of the 1967 Act is concerned,the Bombay High Court in the case of Dr. Anand Teltumbde (supra)Cconstrued the said provision in the following manner:- “52. Section 20 cannot be interpreted to mean that merelybeing a member of a terrorist gang would entail such amember for the above punishment. What is important is theterrorist act and what is required for the Court to see is theDmaterial before the Court to show that such a person hasbeen involved in or has indulged in a terrorist act. Terroristact is very widely defined under Section 15. In the presentcase, seizure of the incriminating material as alluded tohereinabove does not in any manner prima facie leads to drawEan inferance that, Appellant has committed or indulged in a‘terrorist act’ as contemplated under Section 15 of the UAPAct.”

31. This judgment has not been interfered with by this Court andwe also affirm this interpretation given to Section 20 of the 1967 Act forFtesting as to who would be a member of terrorist gang or terroristorganisation. Moreover, no material has been demonstrated by the NIAbefore us that the appellants are members of the terrorist organisation.AF’s involvement with IAPL as a frontal organisation of the CommunistParty of India (Maoist) is sought to be established, and that has beenreferred to in the chargesheet as well. But the link between IAPL andGthe CPI (Maoist) has not been clearly demonstrated through any material.Reference to AF and VG as members of the CPI (Maoist) appearsfrom the statement of protected witness, but that link is made in relationto events between the years 2002-2007, before the organisation wasincluded in the First Schedule to the 1967 Act. No evidence of continuedHmembership after the party was classified as a terrorist organisation has been brought to our notice. Nor is there any reliable evidence to linkIAPL with CPI (Maoist) as its frontal organisation. We have alreadydealt with the position of the appellants vis-à-vis terrorist acts in earlierparagraphs of this judgment and we prima facie do not think that Section20 can be made applicable against the appellants at this stage of theproceeding, on the basis of available materials.

32. “Terrorist act” as defined under Section 2(k) of the 1967 Actcarries the meaning assigned to it in Section 15. This Section alsostipulates that the expressions “terrorism” and “terrorist” shall beconstrued accordingly. This implies construction of these two expressionsin the same way as has been done in Section 15.

“terrorist organisation” has been independently defined inSection 2(m) to mean an organisation listed in the First Scheduleor an organisation operating under the same name as an organisationso listed. But so far as the word “terrorist” is concerned, in thisSection also, the interpretation thereof would be relatable to thesame expression as used in Section 15. It is one of the basic rulesof statutory construction that an expression used in different partsof a statute shall ordinarily convey the same meaning – unlesscontrary intention appears from different parts of the sameenactment itself. We do not find any such contrary intention in the1967 Act.

33. Section 38 of the 1967 Act carries the heading or title “offencerelating to membership of a terrorist organisation”. As we havealready observed, a terrorist act would have to be construed havingregard to the meaning assigned to it in Section 15 thereof. We havegiven our interpretation to this provision earlier. “terrorist organisation”[as employed in Section 2(m)], in our opinion is not a mere nomenclatureand this expression would mean an organisation that carries on or indulgesin terrorist acts, as defined in said Section 15. The term terrorism, inview of the provisions of Section 2(k) of the said Act, ought to beinterpreted in tandem with what is meant by ‘terrorist Act’ in Section 15thereof.

34. In this context, to bring the appellants within the fold of Section38 of the 1967 Act, the prosecution ought to have prima facie establishtheir association with intention to further the said organisation’s terroristactivities. It is only when such intention to further the terrorist activities AB

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Ais established prima facie, appellants could be brought within the fold ofthe offence relating to membership of a terrorist organisation. To bringwithin the scope of Section 38 of the 1967 Act, it would not be sufficientto demonstrate that one is an associate or someone who professes to beassociated with a terrorist organisation. But there must be intention tofurther the activities of such organisation on the part of the personBimplicated under such provision. But the same line of reasoning in respectof membership of a terrorist organisation under Section 20, ought toapply in respect of an alleged offender implicated in Section 38 of the1967 Act. There must be evidence of there being intention to be involvedin a terrorist act. So far as the appellants are concerned, at this stageCthere is no such evidence before us on which we can rely.

35. In three decisions of this Court, Hitendra Vishnu Thakurand Others -vs- State of Maharashtra and Others [(1994) 4 SCC602], Niranjan Singh Karam Singh Punjabi, Advocate -vs- JitendraBhimraj Bijjaya and Others [(1990) 4 SCC 76] and UsmanbhaiDDawoodbhai Memon and Others -vs- State of Gujarat [(1988) 2SCC 271], the manner in which stringent provisions of a statute ought tobe interpreted has been laid down. In all the three authorities, observationof this Court has been that the Court ought to carefully examine everycase, before making an assessment if the Act would apply or not. Whenthe statutes have stringent provisions the duty of the Court would beEmore onerous. Graver the offence, greater should be the care taken tosee that the offence would fall within the four corners of the Act. Thoughthese judgments were delivered while testing similar rigorous provisionsunder the Terrorist and Disruptive Activities (Prevention) Act, 1987, thesame principle would apply in respect of the 1967 Act as well.F

36. In the case of Zahoor Ahmad Shah Watali (supra), it hasbeen held that the expression “prima facie true” would mean that thematerials/evidence collated by the investigating agency in reference tothe accusation against the accused concerned in the chargesheet mustprevail, unless overcome or disproved by other evidence, and on theGface of it, materials must show complicity of such accused in thecommission of the stated offences. What this ratio contemplates is thaton the face of it, the accusation against the accused ought to prevail. Inour opinion, however, it would not satisfy the prima facie “test” unlessthere is at least surface-analysis of probative value of the evidence, atthe stage of examining the question of granting bail and the quality orH

probative value satisfies the Court of its worth. In the case of theappellants, contents of the letters through which the appellants are soughtto be implicated are in the nature of hearsay evidence, recovered fromco-accused. Moreover, no covert or overt terrorist act has been attributedto the appellants in these letters, or any other material forming part ofrecords of these two appeals. Reference to the activities of the accusedare in the nature of ideological propagation and allegations of recruitment.No evidence of any of the persons who are alleged to have been recruitedor have joined this “struggle” inspired by the appellants has been broughtbefore us. Thus, we are unable to accept NIA’s contention that theappellants have committed the offence relating to support given to aterrorist organisation.

37. The second set of materials include the witness statements.There also no covert or overt act of terrorism has been attributed to theappellants by the three witnesses. We have dealt with the summary oftheir statements earlier in this judgment. We have also observed earlierthat mere possession of the literature, even if the content thereof inspiresor propagates violence, by itself cannot constitute any of the offenceswithin Chapters IV and VI of the 1967 Act.

38. We have already analysed Sections 38 and 39 of the 1967Act. The interpretation given by us to the phrase “intention to furtheractivities” of terrorist organisation could also apply in the same way inrelation to Section 39 of the same statute. There has been no credibleevidence against the appellants of commission of any terrorist act orenter 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 accountstatement is credible enough to justify invoking the bail-restricting clauseby attracting Section 40 of the 1967 Act.

40. We are returning these findings as the restrictions on the Courtwhile examining the question of bail under the 1967 Act is less stringentin comparison to the provisions of Section 37 of the Narcotic Drugs andPsychotropic Substances Act, 1985. We are not called upon, for grantinga bail to an accused with commercial quantity of contraband article underthe 1985 Act, to satisfy ourselves that there are reasonable grounds forbelieving that an accused is not guilty of such offence and that he is not AB

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Alikely to commit any offence while on bail. Here, we have to satisfyourselves that the specified offences alleged to have been committed bythe appellants cannot be held to be prima facie true.

41. We shall now turn to the other offence under the 1967 Act,which is under Section 13 thereof, and the 1860 Code offences. TheByardstick for justifying the appellants’ plea for bail is lighter in this context.The appellants are almost five years in detention. In the cases of K.A.Najeeb (supra) and Angela Harish Sontakke (supra), delay of trialwas considered to be a relevant factor while examining the plea for bailof the accused. In the case of K.A. Najeeb (supra), in particular, thissame provision, that is Section 43D (5) was involved.C

42. In these two proceedings, the appellants have not crossed, asundertrials, a substantial term of the sentence that may have beenultimately imposed against them if the prosecution could establish thecharges against them. But the fundamental proposition of law laid downin K.A. Najeeb (supra), that a bail-restricting clause cannot denude theDjurisdiction of a Constitutional Court in testing if continued detention in agiven case would breach the concept of liberty enshrined in Article 21 ofthe Constitution of India, would apply in a case where such a bail-restrictingclause is being invoked on the basis of materials with prima facie low-probative value or quality.E43. In the case of Zahoor Ahmad Shah Watali

43. In the case of Zahoor Ahmad Shah Watali (supra) referencewas made to the judgment of Jayendra Saraswathi Swamigal -vs-State of Tamil Nadu [(2005) 2 SCC 13) in which, citing two earlierdecisions of this court in the cases of State -vs- Jagjit Singh (AIR1962 SC 253) and Gurcharan Singh -vs- State of (UT of Delhi)F[(1978) 1 SCC 118), the factors for granting bail under normalcircumstances were discussed. It was held that the nature and seriousnessof the offences, the character of the evidence, circumstances which arepeculiar to the accused, a reasonable possibility of the presence of theaccused not being secured at the trial; reasonable apprehension ofwitnesses being tempered with; the larger interest of the public or theGState would be relevant factors for granting or rejecting bail. Juxtaposingthe appellants’ case founded on Articles 14 and 21 of the Constitution ofIndia with the aforesaid allegations and considering the fact that almostfive years have lapsed since they were taken into custody, we are satisfiedthat the appellants have made out a case for granting bail. AllegationsHagainst them no doubt are serious, but for that reason alone bail cannot be denied to them. While dealing with the offences under Chapters IVand VI of the 1967 Act, we have referred to the materials availableagainst them at this stage. These materials cannot justify continueddetention of the appellants, pending final outcome of the case under theothers provisions of the 1860 Code and the 1967 Act.

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44. While forming our opinion over granting bail to the appellants,we have taken into account the fact that that VG was once earlierconvicted involving offences, inter-alia, under 1967 Act and there is alsoa pending criminal case against him on the allegations of similar line ofactivities. Hence, we propose to impose appropriate conditions in respectof both, which they shall have to comply with, while on bail.

B

C

45. We accordingly set aside the impugned judgments and directthat the appellants be released on bail in respect of the cases(s) out ofwhich the present appeals arise, on such terms and conditions the SpecialCourt may consider fit and proper, if the appellants or any one of themare not wanted in respect of any other case. The conditions to be imposedby the Special Court shall include:- D

(a) Vernon Gonsalves, appellant in Criminal Appeal No.639 of2023 and Arun Ferreira, appellant in Criminal Appeal No.640of 2023, upon being enlarged on bail shall not leave theState of Maharashtra without obtaining permission from theTrial Court.E

(b) Both the appellants shall surrender their passports, if theypossess so, during the period they remain on bail with theInvestigating Officer of the NIA.

(c) Both the appellants shall inform the Investigating Officerof the NIA, the addresses they shall reside in.

F

(d) Both the appellants shall use only one Mobile Phone each,during the time they remain on bail and shall inform theInvestigating Officer of the NIA, their respective mobilenumbers.

G

(e) Both the appellants shall also ensure that their MobilePhones remain active and charged round the clock so thatthey remain constantly accessible throughout the period theyremain on bail.

H

A(f)During this period, that is the period during which they remainon bail, both the appellants shall keep the location status oftheir mobile phones active, 24 hours a day and their phonesshall be paired with that of the Investigating Officer of theNIA to enable him, at any given time, to identify theappellants’ exact location.

B

(g) Both the appellants shall report to the Station House Officerof the Police Station within whose jurisdiction they shallreside while on bail once a week.

46. In the event there is breach of any of these conditions, or anyCof the conditions to be imposed by the Trial Court independently, it wouldbe open to the prosecution to seek cancellation of the bail of each or anyof the defaulting appellants without any further reference to this Court.Similarly, if the appellants seek to threaten or otherwise influence any ofthe witnesses, whether directly or indirectly, then also the prosecutionshall be at liberty to seek cancellation of bail of the concerned appellantDby making appropriate application before the Trial Court.

47. The appeals stand allowed in the above terms.

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

EDivya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeals allowed.

F

G

H