Thwaha Fasal vs Union Of India on 28 October, 2021


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Supreme Court of India

Thwaha Fasal vs Union Of India on 28 October, 2021

Author: Ajay Rastogi

Bench: Ajay Rastogi, Abhay S. Oka

                                                    1


                                                                        REPORTABLE


                                   IN THE SUPREME COURT OF INDIA

                                 CRIMINAL APPELLATE JURISDICTION

                                CRIMINAL APPEAL NO. 1302          OF 2021
                               (Arising out of SLP (Crl.) No. 2415 of 2021)


             THWAHA FASAL                                          ..… APPELLANT

                                              v.

             UNION OF INDIA                                        ..... RESPONDENT

                                                   WITH

                                CRIMINAL APPEAL NO. 1303          OF 2021
                                (Arising out of SLP (Crl.) No. 5931 of 2021)



             UNION OF INDIA                                          ….. APPELLANT

                                                     v.

             ALLAN SHUAIB                                           ….. RESPONDENT



                                          J U D G M E N T

ABHAY S. OKA, J.

Leave granted.

1. These two appeals take exception to the Judgment and Order

passed by a Division Bench of Kerala High Court in the appeals
Signature Not Verified

Digitally signed by
DEEPAK SINGH
Date: 2021.10.28
17:30:18 IST
Reason:

preferred by the Union of India under sub-section (4) of Section 21 of
2

the National Investigation Agency Act, 2008 (for short “the NIA Act”).

The appeals before the High Court arose out of the Order dated 9 th

September 2020, passed by the learned Judge of the Special Court

appointed to conduct the trial of National Investigation Agency cases at

Ernakulam in Kerala. By the said Order, the learned Judge of the

Special Court For NIA Cases, granted bail to the accused no.1 Allen

Shuaib and the accused no.2 Thwaha Fasal.

2. A First Information Report was registered against the accused

nos.1,2 and 3 for the offences punishable under Sections 20, 38 and 39

of Unlawful Activities (Prevention) Act, 1967 (for short “the 1967 Act”).

The Offence was registered by Pantheerankavu Police Station in

Kerala. Later on, the investigation of the case was transferred to

National Investigation Agency (for short “NIA”) established under the

NIA Act.

3. The accused no.3 is absconding. On completion of investigation,

a charge sheet was filed by NIA against the accused nos.1 and 2.

Offences punishable under Sections 38 and 39 of the 1967 Act as well

as under Section 120-B of the Indian Penal Code (for short “IPC”) were

alleged against the accused no.1. The same offences were alleged

against the accused no.2. In addition, an offence punishable under
3

Section 13 of the 1967 Act was also alleged against the accused no. 2.

Before filing of charge sheets, bail applications moved by the accused

nos.1 and 2 were dismissed and the order of dismissal was confirmed

by High Court in appeals preferred under sub-section (4) of Section 121

of the NIA Act. After investigation was transferred to NIA, the accused

no.2 applied for bail which was dismissed by the learned Judge of the

Special Court. After filing of charge sheet, fresh applications were filed

by the accused which were allowed by the learned Judge of the Special

Court by the Order dated 9th September 2020. By the impugned

Judgment and order, the appeal preferred by the Union of India against

the order of the Special Court was partly allowed. The High Court

proceeded to set aside the order granting bail to the accused no. 2.

However, the order of the Special Court granting bail to the accused

no.1 was confirmed by the High Court. The appeal arising out of

Special Leave Petition(Crl.) No. 2415 of 2021 has been preferred by

the accused no. 2 and the appeal arising out of Special Leave Petition

(Crl.) No. 5931 of 2021 has been preferred by the Union of India for

challenging that part of the impugned Judgment and Order by which

the order of the Special Court granting bail to the accused no.1 has

been confirmed. The accused nos.1 and 2 were apprehended on 1 st

November 2019. The accused no.1 who was born on 27 nd August
4

1999 was 20 years old at that time and the accused no.2 who was born

on 5th August 1995 was 24 years old at that time. As noted by the

Special Court, the accused no.1 was a law student at that time and the

accused no.2, while working and earning his livelihood, was pursuing

his studies in Journalism through a Distant Education Programme.

4. On 1st November 2019, the complainant who is the Sub-Inspector

of Police attached to Pantheerankavu Police Station in Kozhikode city

in Kerala found that the accused nos.1 to 3 were standing in suspicious

circumstances in front of Medicare Laboratory in Kozhikode city. After

seeing the police vehicle, the accused no. 3 ran away. However, the

accused nos.1 and 2 were apprehended. The accused no.1 was

carrying a shoulder bag and the accused no.2 was carrying a red

plastic file. Nine items were seized from the shoulder bag of the

accused no.1. From the red plastic file of the accused no.2, two items

were seized. The First Information Report was registered on the same

day under Sections 20, 38 and 39 of the 1967 Act alleging that the

accused nos. 1 and 2 were the members of the Communist Party of

India (Maoist) [for short “CPI (Maoist)”] which is a terrorist organisation

within the meaning of Clause (m) of Section 2 of the 1967 Act which is

listed at Item No.34 in the First Schedule to the 1967 Act. By the order

dated 18th April 2020, the Government of India granted sanction in
5

exercise of powers under Section 45 of the 1967 Act to prosecute the

accused no.1 for offences punishable under Sections 38 and 39 of the

1967 Act. Under the same order, a sanction to prosecute the accused

no.2 for the offences punishable under Sections 13, 38 and 39 of the

1967 Act was granted. As can be seen from the order dated 18 th April

2020, NIA had recommended for grant of sanction under the aforesaid

Sections. It is pointed out across the Bar by Shri S.V. Raju, the learned

Additional Solicitor General of India (ASG) that the case is fixed for

framing of charge. However, it was also pointed out across the Bar that

a report from the Forensic Science Laboratory is not yet received.

SUBMISSIONS OF THE LEARNED COUNSEL

5. Shri Jayanth Muthuraj, the learned Senior Counsel representing

accused no.2 in support of the appeal preferred by the said accused

made detailed submissions which can be summarised as under:

(a)Though FIR was registered against both the accused for the

offences punishable under Sections 20, 38 and 39 of the 1967

Act, while filing the charge sheet, the offence punishable under

Section 20 has not been invoked. He pointed out that

Section 20 is applicable to an accused who is a member of a

terrorist gang or a terrorist organisation which is involved in a
6

terrorist act. He submitted that though there is an allegation

made in the FIR that the accused nos.1 and 2 are members of

CPI (Maoist), even sanction to prosecute the accused under

Section 20 has not been granted in accordance with Section

45 of the 1967 Act. He submitted that the maximum

punishment for the offence under Section 20 is of

imprisonment for life and fine. However, for the offences under

Sections 38 and 39, the maximum punishment is of 10 years

or with fine or with both. He submitted that Section 13 of the

1967 Act has been applied to the accused no.2 for which the

maximum punishment is of 5 years or fine or with both.

(b)He pointed out that the stringent provisions for grant of bail

provided in sub-section (5) of Section 43D of the 1967 Act are

applicable only for the persons accused of offences punishable

under Chapters IV and VI of the 1967 Act. He submitted that

Section 13 is a part of Chapter III and therefore, only for the

offences punishable under Sections 38 and 39 of the1967 Act,

stringent provisions of sub-section (5) of Section 43D will have

to be applied.

(c) He invited our attention to the fact that on 1 st November 2019

in the red file carried by the accused no.2, a book on Caste
7

Issues in India and a book styled as Organisational

Democracy, Disagreement with Lenin were found. He pointed

out that from the house search of the accused no.2, 18 items

were found most of which are documents. He pointed out that

two red colour banners were seized from his house calling

upon people to support the freedom struggle of Jammu and

Kashmir. He pointed that one laptop, mobile phone with sim,

two additional sim cards, three memory cards and two pen

drives were seized from the house of the accused no. 2.

(d)He submitted that even assuming that the accused no. 2 was

found in possession of various materials concerning the

activities and meetings of the CPI (Maoist), Sections 38 and 39

are not attracted. He submitted that the offence under sub-

section (1) of Section 38 can be made out if a person

associates himself with a terrorist organisation with intention to

further its activities. He submitted that similarly, an offence

under Section 39 is attracted only when the acts incorporated

in Section 39 are committed with intention to further the activity

of a terrorist organisation. He submitted that the charge sheet

does not disclose any material to show that there was such an

intention on the part of the accused no.2.

8

(e)The learned Judge of the Special Court has taken into

consideration each and every material incorporated against

the accused in the charge sheet and has concluded that the

charge sheet does not make out a prima facie case of the

accused having intention to encourage, further, promote or

facilitate the commission of terrorist activities. He submitted

that there are no reasons assigned by the High Court to

disturb the said prima facie finding. He relied upon a decision

of this Court in the case of People’s Union for Civil Liberties

and Anr. v. Union of India1. He submitted that the challenge

in the said case before this Court was to the constitutional

validity of various provisions of the Prevention of Terrorism

Act, 2002 (for short “POTA”). He submitted that this Court

accepted the argument of the learned Attorney General of

India that Sections 20, 21 and 22 would not cover any

activities which do not have an element of intention of

furthering or encouraging terrorist activity or facilitating its

commission. He submitted that it was held that the said three

provisions do not exclude mens rea. He also relied upon

another decision of this Court in the case of Arup Bhuyan v.

1 (2004) 9 SCC 580
9

State of Assam2. He submitted the offences under Sections

38 and 39 are not attracted unless it is shown that the accused

nos. 1 and 2 were active members of CPI (Maoist). He also

pointed out that subsequently in the year 2015, the said

decision has been referred to a larger Bench by a Coordinate

Bench.

(f) The learned Senior Counsel relied upon a decision of this

Court in the case of Union of India v. K.A. Najeeb3. Relying

upon the said decision, he submitted that the statutory

embargo imposed by sub-section (5) of Section 43D of the

1967 Act does not oust the jurisdiction of a Constitutional Court

to grant bail on the ground of violation of rights conferred by

Part III of the Constitution of India. He submitted that in the

statutes like the Narcotics Drugs and Psychotropic Substances

Act, 1985 (for short “the NDPS Act”), while granting bail, there

is a requirement of the Court recording a prima facie

satisfaction that the accused is not guilty of the offence alleged

against him and that he is unlikely to commit another offence

while on bail. But there is no such pre-condition in the 1967

Act. He submitted that under sub-section (5) of Section 43D,

2 (2011) 3 SCC 377
3 (2021) 3 SCC 713
10

before granting bail, the Court is required to record a

satisfaction that there are reasonable grounds for believing

that the accusation against the accused is prima facie not

made out.

(g)He submitted that even going by the tests laid down by this

Court in the case of National Investigation Agency v.

Zahoor Ahmad Shah Watali4, the accused no.2 is entitled to

bail. He submitted that stringent conditions were imposed by

the Special Court while enlarging the accused no.2 on bail.

(h)He submitted that immediately after cancellation of bail under

the impugned Judgment and Order, the accused no.2

surrendered. He pointed out that the accused no.2 is in

custody for more than 572 days. He pointed out that 92

witnesses have been cited in the charge sheet and even

charge has not been framed by the Special Court. He

submitted that the punishment imposed under Sections 38 and

39 of the 1967 Act can extend to ten years or fine or with both.

He submitted that considering the fact that charge is not yet

framed and total 92 witnesses are to be examined, the trial is

not likely to be completed in near future. He submitted that as

4 (2019) 5 SCC 1
11

FSL report is yet to be received, charge is not likely to be

framed immediately.

6. Shri S.V. Raju, the learned Additional Solicitor General made the

following submissions for opposing the appeal preferred by the

accused no.2 and in support of the appeal preferred by the Union of

India:

(a)He submitted that Item No. 34 of Schedule 1 of the 1967 Act

incorporates CPI (Maoist) in the list of terrorist organisations

within the meaning of Clause (m) of Section 2 of the 1967 Act.

He submitted that the said organisation is a terrorist

organisation as distinguished from an unlawful association

contemplated by Clause (p) of Section 3 of the 1967 Act.

(b)He pointed out from the counter filed by NIA and in particular

Clauses (i) to (xvi) of paragraph 30 that when the house of the

accused no.2 was being searched, he shouted various slogans

such as Inquilab Zindabad, Maoism Zindabad, Naxalbari

Zindabad etc. He pointed out that two red colour handmade

cloth banners of CPI (Maoist) were recovered from his

residence calling upon people to support the struggle for

independence of Kashmir. He submitted that material used for

preparation of banners was also recovered. He submitted that
12

the contents of the banners amount to inciting the rebellion

and public disorder.

(c) He pointed out that during the house search of the accused

no.2 not only various materials published by CPI (Maoist) were

found but a notebook was found containing minutes of the

meeting held on 15th September 2019. He pointed out that the

said notebook was found in a locked room inside his house.

He pointed out that soft copies of number of volumes of news

bulletin of CPI (Maoist) were recovered from the digital device

used by the accused no.2. He submitted that the digital device

also contains the party programme issued by the Central

Committee of CPI (Maoist) and the road map of the party. He

submitted that the digital device also contains material about

the political and military strategy of the CPI (Maoist).

(d)He submitted that material found from the custody of both the

accused and the material seized from their houses indicates

that both of them and especially the accused no.2 are

intimately connected with activities of CPI (Maoist). He

submitted that the very fact that the minutes of the secret

meetings were found in the custody of the accused no.2

shows that he is actively involved in the activities of the
13

terrorist organisation. He submitted that considering the

material forming a part of the charge sheet, intention on the

part of both the accused to further the activities of the terrorist

organisation can be inferred.

(e)He submitted that a person who is a member of terrorist

organisation can be prosecuted under Section 38 of the 1967

Act. He submitted that though Section 20 may not have been

applied, in view of the decision of this Court in the case of the

State of Gujarat v. Girish Radhakrishnan Varde5, the

Special Court can disagree with the police report and issue

process for an offence which is not made out in the charge

sheet. He submitted that even further investigation can be

ordered by the Court.

(f) He submitted that the prosecution can subsequently obtain the

sanction to prosecute for the offence punishable under Section

20 of the 1967 Act as well. He submitted that apart from the

fact that the decision in the case of Arup Bhuyan (supra) has

been referred to a larger Bench, the issue involved in the said

case was in connection with Terrorist and Disruptive Activities

(Prevention) Act, 1987 (for short “TADA”). He submitted that

5 (2014) 3 SCC 659
14

the case of PUCL (supra), the challenge was to various

provisions in POTA and not the 1967 Act.

(g)He submitted that the High Court while confirming the order

granting bail to the accused no.1 has completely disregarded

sub-section (5) of Section 43D of the 1967 Act. He submitted

that the bail granted to the accused No.1 has been confirmed

by the High Court by ignoring sub-section 5 of Section 43D.

(h)He submitted that the Special Court has completely ignored

the law laid down in the case of Watali (supra) and as rightly

found by the High Court, the Special Court has conducted a

mini trial which is not permissible.

(i) He submitted that the accused nos.1 and 2 who are the active

members of the terrorist organisation are trying to create

disharmony with the object of overthrowing the democratically

elected government. He submitted that though the personal

liberty is sacrosanct, the individual rights should subserve the

national interest. He submitted that the prima facie findings

recorded by the High Court on consideration of the entire

material against the accused Nos.1 and 2 disentitle both of

them to grant of bail.

15

7. The learned Senior Counsel Shri R. Basant appearing for

the accused no.1 opposed the submissions made by learned

ASG in the appeal preferred by Union of India. His submissions

can be briefly summarised as under: –

(a) He submitted that NIA never sought sanction to prosecute

the accused Nos.1 and 2 for the offence punishable under

Section 20 of the 1967 Act. He submitted that in view of Section

45, the Special Court cannot take cognisance of the offence

under Section 20 without previous sanction of the Central

Government.

(b) He submitted that the finding recorded by the High Court in

the impugned Judgment that the accused no.1 was taking

treatment for certain psychiatric issues is not disputed by the

prosecution. He invited our attention to what is held by this Court

in the case of PUCL (supra) while upholding the validity of

Sections 20, 21 and 22 of POTA. He relied upon paragraph 46

which records the submission of the Government of India that

Sections 20, 21 and 22 of POTA can be applied only to a person

who acted with intent of furthering or encouraging terrorist

activities or facilitating its commission. He submitted that while

repealing POTA, amendments were made to the provisions of the
16

1967 Act by including intention to further activities of terrorist

organisations in Sections 38 and 39. Relying upon the decision

of this Court in the case of Mahipal v. Rajesh Kumar alias Polia

and Anr6, he submitted that while exercising the power of appeal

under sub-section (4) of Section 21 of NIA Act, the Court cannot

interfere with the order granting bail unless the order suffers from

non-application of mind or is not borne out from a prima facie

view of the evidence on record. He submitted that there is no

possibility of Special Court framing charge as a report of FSL is

not yet received.

CONSIDERATION OF SUBMISSIONS

8. Clause (m) of Section 2 of the 1967 Act defines “terrorist

organisation”. It is defined as an organisation listed in the First

Schedule. CPI (Maoist) has been listed at Item no.34 in the First

Schedule. Chapters III onwards of the 1967 Act incorporate

various offences. Chapter III deals with unlawful associations

and unlawful activities with which we are not concerned. Chapter

IV has the title “punishment for terrorist act”. Section 16 in

Chapter IV prescribes the punishment for terrorist act. Clause (k)

6 (2020) 2 SCC 118,
17

of Section 2 provides that “terrorist act” has the meaning

assigned to it under Section 15 which reads thus:

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

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

(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 the life of the community in India or in any
foreign country; or
[(iiia) damage to, the monetary stability of India by
way of production or smuggling or circulation of
high quality counterfeit Indian paper currency, coin
or of any other material; or]

(iv) damage or destruction of any property in India
or in a foreign country used or intended to be used
for the defence of India or in connection with any
other purposes of the Government of India, any
State Government or any of their agencies; or

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

(c) detains, kidnaps or abducts any person and
threatens to kill or injure such person or does any
other act in order to compel the Government of India,
18

any State Government or the Government of a foreign
country or [an international or inter-governmental
organisation or any other person to do or abstain from
doing any act; or] commits a terrorist act.
[Explanation.—For the purpose of this sub-section,—

(a) “public functionary” means the constitutional
authorities or any other functionary notified in the
Official Gazette by the Central Government as public
functionary;

(b) “high quality counterfeit Indian currency” means the
counterfeit currency as may be declared after
examination by an authorised or notified forensic
authority that such currency imitates or compromises
with the key security features as specified in the Third
Schedule.]
[(2) The terrorist act includes an act which constitutes
an offence within the scope of, and as defined in any
of the treaties specified in the Second Schedule.]

In this case, there is no allegation against the accused nos.1 and 2 of

committing any terrorists act. Chapter V contains provisions for forfeiture

of proceeds of terrorism with which we are not concerned.

9. In these appeals, we are mainly concerned with the offences

punishable under Sections 20, 38 and 39 of the 1967 Act, which read

thus:-

“20. Punishment for being member of terrorist
gang or organisation.- Any person who is a member
of a terrorist gang or a terrorist organisation, which is
involved in terrorist act, shall be punishable with
imprisonment for a term which may extend to
imprisonment for life, and shall also be liable to fine”.

19

“38. Offence relating to membership of a terrorist
organisation.—(1) A person, who associates himself, or
professes to be associated, with a terrorist organisation
with intention to further its activities, commits an
offence relating to membership of a terrorist
organisation:

Provided that this sub-section shall not apply
where the person charged is able to prove—

(a) that the organisation was not declared as a
terrorist organisation at the time when he became
a member or began to profess to be a member;

and

(b) that he has not taken part in the activities of the
organisation at any time during its inclusion in the
First Schedule as a terrorist organisation.

(2) A person, who commits the offence relating to
membership of a terrorist organisation under sub-
section (1), shall be punishable with imprisonment
for a term not exceeding ten years, or with fine, or
with both.

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

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

(i) invites support for the terrorist organization; and

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

(b) who, with intention to further the activity of a
terrorist organisation, arranges, manages or assists in
arranging or managing a meeting which he knows is—
20

(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 professes to be associated with the terrorist
organisation; or

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

(2) A person, who commits the offence relating to
support given to a terrorist organisation under sub-
section (1) shall be punishable with imprisonment
for a term not exceeding ten years, or with fine, or
with both”

(emphasis added)

10. The offence punishable under Section 20 is attracted when the

accused is a member of a terrorist gang or a terrorist organisation

which is involved in terrorist act. Section 20 is not attracted unless the

terrorist gang or terrorist organisation of which the accused is a

member is involved in terrorist act as defined by Section 15. Section

20 provides for a punishment of imprisonment for a term which may

extend to imprisonment for life and fine.

11. On plain reading of Section 38, the offence punishable therein will

be attracted if the accused associates himself or professes to associate

himself with a terrorist organisation included in First Schedule with
21

intention to further its activities. In such a case, he commits an offence

relating to membership of a terrorist organisation covered by Section

38. The person committing an offence under Section 38 may be a

member of a terrorist organization or he may not be a member. If the

accused is a member of terrorist organisation which indulges in terrorist

act covered by Section 15, stringent offence under Section 20 may be

attracted. If the accused is associated with a terrorist organisation, the

offence punishable under Section 38 relating to membership of a

terrorist organisation is attracted only if he associates with terrorist

organisation or professes to be associated with a terrorist organisation

with intention to further its activities. The association must be with

intention to further the activities of a terrorist organisation. The activity

has to be in connection with terrorist act as defined in Section 15.

Clause (b) of proviso to sub-section (1) of Section 38 provides that if a

person charged with the offence under sub-section (1) of Section 38

proves that he has not taken part in the activities of the organisation

during the period in which the name of the organisation is included in

the First Schedule, the offence relating to the membership of a terrorist

organisation under sub-section (1) of Section 38 will not be attracted.

The aforesaid clause (b) can be a defence of the accused. However,
22

while considering the prayer for grant of bail, we are not concerned with

the defence of the accused.

12. Section 39 deals with the offences relating to support given to a

terrorist organisation. It covers three kinds of offences under clauses

(a), (b) and (c) of sub-section (1) of Section 39. The offences

punishable under clauses (a), (b) and (c) of sub-section (1) of Section

39 are attracted only when the actions incorporated therein are done

with intention to further the activities of a terrorist organisation. As

observed earlier, the activities must have some connection with terrorist

act. Clauses (a), (b) and (c) are attracted only if actions/activities

specified therein are done with intention to further the activities of a

terrorist organisation.

13. Thus, the offence under sub-section (1) of Section 38 of

associating or professing to be associated with the terrorist

organisation and the offence relating to supporting a terrorist

organisation under Section 39 will not be attracted unless the acts

specified in both the Sections are done with intention to further the

activities of a terrorist organisation. To that extent, the requirement of

mens rea is involved. Thus, mere association with a terrorist

organisation as a member or otherwise will not be sufficient to attract
23

the offence under Section 38 unless the association is with intention to

further its activities. Even if an accused allegedly supports a terrorist

organisation by committing acts referred in clauses (a) to (c) of sub-

section (1) of Section 39, he cannot be held guilty of the offence

punishable under Section 39 if it is not established that the acts of

support are done with intention to further the activities of a terrorist

organisation. Thus, intention to further activities of a terrorist

organisation is an essential ingredient of the offences punishable under

Sections 38 and 39 of the 1967 Act.

14. The punishment prescribed for both the offences is imprisonment

for a period not exceeding 10 years or with fine or with both. The

offence under Section 20 is more serious as it attracts punishment

which may extend to imprisonment for life and fine. Depending upon

the gravity of offence committed under Section 38 and/ or 39 and other

relevant factors, the accused can be let off even on fine.

15. The accused no.2 has been charged with the offence punishable

under Section 13, which reads thus:

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

(a) takes part in or commits, or

(b) advocates, abets, advises or incites the commission
of, any unlawful activity, shall be punishable with
24

imprisonment 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
any association declared unlawful under section 3, after
the notification by which it has been so declared has
become effective under sub-section (3) of that section,
shall be punishable with imprisonment for a term which
may extend to five years, or with fine, or with both.

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

It is essentially an offence of committing unlawful activities as defined

under Clause (o) of Section 2. The said offence has been alleged on

the ground that two banners were found in the house of the accused

no.2 which according to the prosecution invite public support to

freedom movement of Jammu and Kashmir. Section 13 does not form

a part of Chapter IV or VI. Hence, for consideration of grant of bail to a

person accused of an offence under Section 13, stringent provisions of

sub-section (5) of Section 43D will not apply.

16. Now, we come to the provision in the 1967 Act regarding the

grant of bail. Sub-section (5) of Section 43D is relevant which reads

thus:

25

“(5) Notwithstanding anything contained in the Code,
no person accused of an offence punishable under
Chapters IV and VI of this Act shall, if in custody, be
released on bail or on his own bond unless the Public
Prosecutor has been given an opportunity of being
heard on the application for such release:

Provided that such accused person shall not
be released on bail or on his own bond if the
Court, on a perusal of the case diary or the report
made under section 173 of the Code is of the
opinion that there are reasonable grounds for
believing that the accusation against such person
is prima facie true.”
(emphasis added)

17. The stringent conditions for grant of bail in sub-section (5) of

Section 43D will apply only to the offences punishable only under

Chapters IV and VI of the 1967 Act. The offence punishable under

Section 13 being a part of Chapter III will not be covered by sub-section

(5) of Section 43D and therefore, it will be governed by the normal

provisions for grant of bail under the Code of Criminal Procedure, 1973.

The proviso imposes embargo on grant of bail to the accused against

whom any of the offences under Chapter IV and VI have been alleged.

The embargo will apply when after perusing charge sheet, the Court is

of the opinion that there are reasonable grounds for believing that the

accusation against such person is prima facie true. Thus, if after
26

perusing the charge sheet, if the Court is unable to draw such a prima

facie conclusion, the embargo created by the proviso will not apply.

18. In the case of Watali (supra), this Court has extensively dealt

with sub-section (5) of Section 43D of the 1967 Act and has also laid

down the guidelines for dealing with bail petitions to which sub-section

(5) of Section 43D is applicable. In paragraph 23, this Court

considered the difference in the language used by Section 37 of the

NDPS Act governing grant of bail and sub-section (5) of Section 43D of

the 1967 Act. Paragraph 23 of the said decision reads thus:-

“23. By virtue of the proviso to sub-section (5), it is the duty
of the Court to be satisfied that there are reasonable
grounds for believing that the accusation against the
accused is prima facie true or otherwise. Our attention was
invited to the decisions of this Court, which has had an
occasion to deal with similar special provisions in TADA
and MCOCA. The principle underlying those decisions may
have some bearing while considering the prayer for bail in
relation to the offences under the 1967 Act as well. Notably,
under the special enactments such as
TADA, MCOCA and the Narcotic Drugs and
Psychotropic Substances Act, 1985, the Court is
required to record its opinion that there are reasonable
grounds for believing that the accused is “not guilty” of
the alleged offence. There is a degree of difference
between the satisfaction to be recorded by the Court
that there are reasonable grounds for believing that the
accused is “not guilty” of such offence and the
satisfaction to be recorded for the purposes of the 1967
Act that there are reasonable grounds for believing that
the accusation against such person is “prima facie”
true. By its very nature, the expression “prima
27

facie true” would mean that the materials/evidence
collated by the investigating agency in reference to the
accusation against the accused concerned in the first
information report, must prevail until contradicted and
overcome or disproved by other evidence, and on the
face of it, shows the complicity of such accused in the
commission of the stated offence. It must be good and
sufficient on its face to establish a given fact or the chain of
facts constituting the stated offence, unless rebutted or
contradicted. In one sense, the degree of satisfaction is
lighter when the Court has to opine that the accusation
is “prima facie true”, as compared to the opinion of the
accused “not guilty” of such offence as required under
the other special enactments. In any case, the degree of
satisfaction to be recorded by the Court for opining that
there are reasonable grounds for believing that the
accusation against the accused is prima facie true, is
lighter than the degree of satisfaction to be recorded for
considering a discharge application or framing of
charges in relation to offences under the 1967 Act.”
(emphasis added)

19. After considering the law laid down by this Court in various

decisions including the decision in the case of Ranjitsing

Brahmajeetsing Sharma v. State of Maharashtra7, in paragraphs 24

and 25 it was held thus:-

“24. A priori, the exercise to be undertaken by the
Court at this stage-of giving reasons for grant or non-

grant of bail-is markedly different from discussing merits
or demerits of the evidence. The elaborate examination
or dissection of the evidence is not required to be done
at this stage. The Court is merely expected to record
a finding on the basis of broad probabilities

7 (2005) 5 SCC 294
28

regarding the involvement of the accused in the
commission of the stated offence or otherwise.

25. From the analysis of the impugned judgment, it
appears to us that the High Court has ventured into an
area of examining the merits and demerits of the
evidence. For, it noted that the evidence in the form of
statements of witnesses under Section 161 are not
admissible. Further, the documents pressed into service
by the investigating agency were not admissible in
evidence. It also noted that it was unlikely that the
document had been recovered from the residence of
Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of the
impugned judgment). Similarly, the approach of the High
Court in completely discarding the statements of the
protected witnesses recorded Under Section 164 CrPC,
on the specious ground that the same was kept in a
sealed cover and was not even perused by the
Designated Court and also because reference to such
statements having been recorded was not found in the
charge-sheet already filed against the respondent is, in
our opinion, in complete disregard of the duty of the
Court to record its opinion that the accusation made
against the accused concerned is prima facie true or
otherwise. That opinion must be reached by the
Court not only in reference to the accusation in the
FIR but also in reference to the contents of the case
diary and including the charge-sheet (report under
Section 173 CrPC) and other material gathered by
the investigating agency during investigation.”
(emphasis added)

20. Therefore, while deciding a bail petition filed by an accused

against whom offences under Chapters IV and VI of the 1967 Act have

been alleged, the Court has to consider whether there are reasonable

grounds for believing that the accusation against the accused is prima
29

facie true. If the Court is satisfied after examining the material on record

that there are no reasonable grounds for believing that the accusation

against the accused is prima facie true, then the accused is entitled to

bail. Thus, the scope of inquiry is to decide whether prima facie

material is available against the accused of commission of the offences

alleged under Chapters IV and VI. The grounds for believing that the

accusation against the accused is prima facie true must be reasonable

grounds. However, the Court while examining the issue of prima facie

case as required by sub-section (5) of Section 43D is not expected to

hold a mini trial. The Court is not supposed to examine the merits and

demerits of the evidence. If a charge sheet is already filed, the Court

has to examine the material forming a part of charge sheet for deciding

the issue whether there are reasonable grounds for believing that the

accusation against such a person is prima facie true. While doing so,

the Court has to take the material in the charge sheet as it is.

21. Under sub-section (1) of Section 45 of the 1967 Act, the Court is

not empowered to take cognizance of any offence under Chapters IV

and VI without previous sanction of the Central Government.

Procedure for obtaining sanction has been laid down in sub-section (2)

of Section 45, which reads thus:-

30

“ [(2) Sanction for prosecution under sub-section (1)
shall be given within such time as may be prescribed
only after considering the report of such authority
appointed by the Central Government or, as the case
may be, the State Government which shall make an
independent review of the evidence gathered in the
course of investigation and make a recommendation
within such time as may be prescribed to the Central
Government or, as the case may be, the State
Government.]”

22. The order of sanction dated 18 th April 2020 is a part of the charge

sheet which is placed on record of these appeals. Paragraphs 2 and 3

of the order of sanction show that though the offence was registered

under Sections 20, 38 and 39 of the 1967 Act, by a letter dated 13 th

April 2020, NIA did not seek sanction for prosecuting any of the three

accused for the offence punishable under Section 20. Sanction was

sought to prosecute the accused nos.1 and 2 for the offences

punishable under Sections 38 and 39. In addition, a sanction was

sought to prosecute the accused no.2 under Section 13. Paragraph 4

of the order refers to the authority appointed by the Central

Government under sub-section (2) of Section 45 consisting of a retired

Judge of a High Court and a retired Law Secretary, as well as the

report submitted by the said authority. Paragraph 6 of the said order

records prima facie satisfaction of the Central Government that a case

is made out against the accused under the provisions of the Act of

1967, as mentioned in letter dated 13 th April 2020. Thus, as of today,
31

sanction under sub-section (1) of Section 45 has not been accorded for

prosecuting the accused for the offence punishable under Section 20 of

the Act of 1967 and, therefore, as of today, the Special Court under NIA

Act cannot take cognizance of the offence punishable under Section

20. Therefore, for deciding the issue of prima facie case contemplated

by sub-section (5) of Section 43D, the case against the both accused

only under Sections 38 and 39 is required to be considered. In view of

the absence of sanction and the fact that NIA did not even seek

sanction for the offence punishable under Section 20, a prima facie

case of the accused being involved in the said offence is not made out

at this stage. As stated earlier, sub-section (5) of Section 43D will not

apply to Section 13, as Section 13 has been incorporated in Chapter III

of the 1967 Act.

23. While we deal with the issue of grant of bail to the accused nos.1

and 2, we will have also to keep in mind the law laid down by this Court

in the case of K.A. Najeeb (supra) holding that the restrictions imposed

by sub-section (5) of Section 43D per se do not prevent a Constitutional

Court from granting bail on the ground of violation of Part III of the

Constitution.

32

24. Now we turn to the material against the accused nos.1 and 2 in

the charge sheet. In paragraph 18 of the charge sheet, the charges

against accused nos.1 and 2 have been set out. Paragraph 18.1 to

18.17 reads thus:

“18.1 That, accused A-1, A-2 and A-3 had, knowingly
and intentionally, associated themselves and acted as
members of Communist Party of India (Maoist) in short
CPI (Maoist), proscribed as a terrorist organisation by
the Government of India under section 35 of the
Unlawful Activities (Prevention) Act, 1967 and included
in the 1st Schedule to the Act.

18.2 That, accused A-1, A-2 and A-3 knowingly and
intentionally attended various conspiracy meetings
along with other underground part-time and
professional members of CPI (Maoist). They had also
attended various programmes organized by the frontal
organisations of the proscribed terrorist organisation,
for furthering the objectives of CPI (Maoist).
18.3 That, the accused A-1, A-2 and A-3 had,
knowingly and intentionally conducted meeting and
conspired in front of Medicare Laboratory,
Kottayithazham, Kozhikode City, at around 06:45 PM
on 01.11.2019 for furthering the activities of the
proscribed terrorist organisation CPI (Maoist).
18.4 That, the accused A-1 had knowingly possessed
documents supporting and published by CPI (Maoist)
with the intention of supporting the proscribed terrorist
organisation and propagating its violent extremist
ideology.

18.5 That, the accused A-2 had knowingly possessed
documents supporting and published by CPI (Maoist)
with the intention of supporting the proscribed terrorist
organisation and propagating its violent extremist
ideology.

33

18.6 That, the accused A-3, on seeing the Police
party, had fled from the scene and managed to escape
owing to his membership in the proscribed terrorist
organisation CPI (Maoist). He is still absconding.
18.7 That, A-1 had knowingly and with the intention of
aiding CPI (Maoist) possessed on his digital devices,
materials supporting the proscribed terrorist
organisation and its violent extremist ideology, for the
purpose of spreading such ideology.

18.8 That, the materials found during the house
search of A-2 such as notices, pamphlets, books, hand
written notes, banners besides digital devices and
publications were knowingly and intentionally
possessed by A-2 for supporting the proscribed
terrorist organisation CPI (Maoist).

18.9 That, in pursuance of the conspiracy to further
the activities of CPI (Maoist), during the house search
of A-2, he had, intentionally and knowingly, raised
slogans, supporting the ideology of the proscribed
terrorist organisation.

18.10 That, in furtherance of the conspiracies with co-
accused and others, A-2 had knowingly and
intentionally prepared cloth banners supporting
secession f Kashmir from the Indian Union, for
displaying at public places on behalf of CPI (Maoist)
and thus committed unlawful activity as defined under
the Unlawful Activities (Prevention) Act.

18.11 That A-1, knowingly and intentionally
participated in the meetings of the proscribed terrorist
organisation CPI (Maoist) with professional members
including A-3 and had prepared notes that were
maintained by A-1.

18.12 That, A-1 and A-3 knowingly and intentionally
conspired and conduced secret meetings at the rented
accommodation of A-1 in Kannur district, for furthering
the objectives of the proscribed terrorist organisation
CPI (Maoist).

34

18.13 That, the accused A-1, had knowingly and
intentionally propagated the Maoist ideology amongst
his close friends with the intention of radicalizing and
recruiting them in to the proscribed terrorist
organisation CPI (Maoist).

18.14 That, the accused had knowingly and
intentionally conducted several conspiracy meetings
(APTs) in Kozhikode and Kannur districts of Kerala for
furthering the objectives of the proscribed terrorist
organisation CPI (Maoist).

18.15 That, the accused A-3 and other underground
professional members of CPI (Maoist) had radicalised
and recruited A-1 and A-2, besides others, into the
proscribed terrorist organisation, with the intention of
furthering the activities of CPI (Maoist).

18.16 Therefore, Allan Shuaib @ Mamu @ Mammu
@ Vivek (A-1) committed offences punishable under
Section 120B of the Indian Penal Code besides
sections 38 and 39 of the Unlawful Activities
(Prevention) Act, 1967.

18.17 Therefore, Thwaha Fasal @ Thaha @ Fasal @
Kishan (A-2) committed offences punishable under
section 120B of the Indian Penal Code besides
sections 13, 38 and 39 of the Unlawful Activities
(Prevention) Act, 1967.”

25. We have examined the material forming part of charge sheet. The

material is in the form of books and other printed material found in the

custody of the accused nos.1 and 2 and the material found on the

digital devices seized from the accused no.2. The learned judge of

the Special Court in his detailed judgment has categorised the seized

material into 12 categories in paragraph 59. As regards the accused
35

no.1, certain documents were found in the shoulder bag carried by him

when he was apprehended. The said documents are under:

1. A notice in Malayalam titled Professor Madhava Gadgil
Committee report nadappilakuka (Implement Professor
Madhav Gadgil Report).

2. A notice in Malayalam tiled “Maoist Veetekkethire Janangal
Rangathiranguka” (people should rise against Maoist Hunt) by
Jogi, Spokesperson, CPI (Maoist), Paschima Ghatta Prathyka
Meghala Committee” (Western Ghats Special Zonal
Committee).

3. A notice in Malayalam titled “Puthiya Munnettangalkkayi
Thayyaredukkuka, (Prepare for New Advancements) October
28, 29, 30 Wayanad Collectorattil Rappakal Maha Dharna”
(Day and Night Maha Dharna at Wayanad Collectorate).

4. A hand written paper with scribble “Malabar Motham 17” and
ending with word “student”.

5. A handwritten paper with writings “Reporting -2” which ends as
“Porayama Undakunnathu Swabhavikam” having four pages
serial numbered from 1 to 4.

6. A spiral bound note pad of “SPIROPAD No. 4150 Janvi” with
some writings in code language.

7. A letter pad having 06 pages and light blue colour cover page
with writings “Vimarshana Swathatryam Thiricchu Pidikkuka”
(Regain Freedom to Criticize) “Swathatra Lokam 2017 Deshiya
Seminar.”

8. A monthly Magazine “Maruvakk Rastriya Samskarika Masika”
of October 2019 Volume – 4, Edition – 10 having 50 pages.

9. A pocket diary having 09 pages.

From search of his house, a mobile phone was seized.
36

26. Two items were recovered from red file possessed by the

accused no.2 when he was apprehended. Following two items were

recovered from the red plastic file of the second accused :

“A book with heading “Indiayile Jathiprasnam Nammude
Kazhchapadu – May Dinam 2017” (Caste issues in India, our
views – May day 2017) – published by Central Committee of
CPI (Maoist).

A book in Malayalam language with heading “Sankatana
Janadhipathyam – Leninodulla Viyojanangal” (Organisational
democracy, disagreement with Lenin) of Rosa Luxemberg.”

27. From the house of the accused no.2, the following 18 items were

seized:

“1. A Diary of 2018

2. A book with heading “Indiayile jathiprasnam
Nammude Kazhchapadu – May Dinam 2017 (Caste
issues in India, our views – May day 2017) –
published by Central Committee of CPI (Maoist).

3. Pamphlets with heading “Sathruvinte Adavukalum
Nammude Prathyakramana Adavukalum (Enemies
tactics and our counter tactics) – 18 sheets.

4. A book titled “Hello Bastar, India Maoist
Prasthanattinte Parayappadatta Katha” (Hello
Bastar, the Untold story of Indian Maoist
Organisation) written by Rahul Panditha.

5. A book titled “Mundur Ravunni – Thadavarayum
Porattavum” (Mundur Ravunni – Imprisonment and
fight written by Madula Mani.

37

6. A book titled “Indonesian Janankale Fasist
Bharanadhikarikale Marichidan Vendi Onnikkuka
Poraduka” – (Peoples of Indonesia, Join together
and Fight to knock out the Fascist Ruler).

7. A book with outer cover writings “TRIVENI Special”
and writings inside.

8. A book with outer cover writing “CLASSMATE”, and
having writings inside.

9. One page ruled paper having writings “Jammu
Kashmirinte Swathanthrya Porattathe
Pinthunakkuka” (Support the freedom struggle of
Jammu Kashmir).

10. One page paper having writings “Pattaya
Preshnam Collecorateil Ottayal Porattam (Land
document issue, one personal strike at
Collectorate).

11. A printed pamphlet with title “Vivadamaya
Maradu Flat Samuchayangal Polichuneekuka”
(Demolish the controversial flats at Maradu).

12. Printed Notice having printing starts with
“sakhakkalakk” (to comrades) and ends with “area
committee” and A4 size notices with writings
“Jammu Kashmirinmelulla Adhnivesham
Avasanipikuka” (stop the control of Jammu and
Kashmir) and ends with “Paschima Ghatta
Prathyeka Mekhala Committee” (Western Ghats
Special Zonal Committee (dated 2018 Aug 6-15
Nos., found kept inside a folded newspaper of
Mathrubhumi daily dated 2019-Oct-4.

13. Two red colour Banners 180 cm x 87 cms with
printing in Yellow colour “Jammu Kashmirinte
Swanthanthra Poratathe Pinthunakkuka, Kashmiril
Adhinivesha Vazhcha Nadathunna Indian Bharana
Koodathe Cherukkuka, Bhrahmanya Hindutwa
Fascist Bharana Varganthinethire Kalapam
38

Cheyuka: CPI (Maoist)” (Support the freedom
struggle of Jammu Kashmir, oppose the control of
Indian Government at Jammu Kashmir, do struggle
against Hindu Brahmin Fascist Government).

14. One laptop with charger,

15. Mobile phone with SIM,

16. Two additional SIM cards,

17. Three memory cards,

18. Two Pen Drives.”

28. FSL report shows that the cell phone of the accused no.1 had a

video clip with the title “Kashmir bleeding”, as well as portraits of

various communist revolutionary leaders, like Che Guvera and Mao Tse

Tung, as also portrait of Geelani, a Kashmiri leader. Copies of certain

posters were also found. Pdf files extracted showed that it contained

material regarding abrogation of Article 370 of the Constitution and

various other items. The photographs also showed that the accused

no.1 attended protest gathering conducted in October 2019 by

Kurdistan Solidarity Network.

29. As regards the accused no.2, on his devices, images of CPI

(Maoist) flag, files relating to constitution of central committee of CPI

(Maoist), files relating to CPI (Maoist) central committee programme,

image of hanging Prime Minister, various newspaper cuttings relating
39

to maoist incidents were found. A book was also seized relating to

encounter with PLGA (Maoist) at Agali.

30. The Special Judge noted that the face book account, e-mail

accounts and call details of the accused do not contain any

incriminating evidence. High Court has not recorded that any

incriminating material was found therein.

31. Another piece of evidence against the accused no.2 is that during

the search of his residence, he shouted slogans, such as inquilab

zindabad and maoisim zindabad. He also shouted slogans containing

greetings to the brave martyrs who died in an armed encounter

between Maoist members and police. Another material forming a part

of the charge sheet is that absconding accused no.3 visited the place

where the accused no.1 was staying as a paying guest. Material was

found regarding collection of membership fees and other amounts by

the accused for the benefit of the said organization.

32. Taking the charge sheet as correct, at the highest, it can be said

that the material prima facie establishes association of the accused

with a terrorist organisation CPI (Maoist) and their support to the

organisation.

40

33. Thus, as far as the accused no.1 is concerned, it can be said he

was found in possession of soft and hard copies of various materials

concerning CPI (Maoist). He was seen present in a gathering which

was a part of the protest arranged by an organisation which is allegedly

having link with CPI (Maoist). As regards the accused no.2, minutes of

the meeting of various committees of CPI (Maoist) were found.

Certain banners/posters were found in the custody of the accused no.2

for which the offence under Section 13 has been applied of indulging in

unlawful activities. As stated earlier, sub-section (5) of Section 43D is

not applicable to the offence under Section 13.

34. Now the question is whether on the basis of the materials forming

part of the charge sheet, there are reasonable grounds for believing

that accusation of commission of offences under Sections 38 and 39

against the accused nos.1 and 2 is true. As held earlier, mere

association with a terrorist organisation is not sufficient to attract

Section 38 and mere support given to a terrorist organisation is not

sufficient to attract Section 39. The association and the support have to

be with intention of furthering the activities of a terrorist organisation.

In a given case, such intention can be inferred from the overt acts or

acts of active participation of the accused in the activities of a terrorist

organization which are borne out from the materials forming a part of
41

charge sheet. At formative young age, the accused nos.1 and 2 might

have been fascinated by what is propagated by CPI (Maoist).

Therefore, they may be in possession of various documents/books

concerning CPI (Maoist) in soft or hard form. Apart from the allegation

that certain photographs showing that the accused participated in a

protest/gathering organised by an organisation allegedly linked with

CPI (Maoist), prima facie there is no material in the charge sheet to

project active participation of the accused nos.1 and 2 in the activities

of CPI (Maoist) from which even an inference can be drawn that there

was an intention on their part of furthering the activities or terrorist acts

of the terrorist organisation. An allegation is made that they were

found in the company of the accused no.3 on 30 th November, 2019.

That itself may not be sufficient to infer the presence of intention. But

that is not sufficient at this stage to draw an inference of presence of

intention on their part which is an ingredient of Sections 38 and 39 of

the 1967 Act. Apart from the fact that overt acts on their part for

showing the presence of the required intention or state of mind are not

borne out from the charge sheet, prima facie, their constant association

or support of the organization for a long period of time is not borne out

from the charge sheet.

42

35. The act of raising funds for the terrorist organisation has been

alleged in charge sheet against both the accused. This is a separate

offence under Section 40 of the 1967 Act of raising funds for a terrorist

organisation which again contains intention to further the activity of

terrorist organisation as its necessary ingredient. The offence

punishable under Section 40 has not been alleged in this case.

36. The learned judge of the Special Court after examining the entire

materials on record of the charge sheet noted that there is no prima

facie material to show intention on the part of both the accused to

further the activities of the terrorist organisation. Perusal of the

impugned judgment of the High Court shows that it has considered

various aspects, such as the accused were carrying their mobile

phones when they were apprehended on 30 th November 2019 and that

the documents which were possessed by the respondents were not out

of curiosity or for intellectual pursuits. The High Court observed that the

learned Special Judge has oversimplified the matter. However, the

High Court did not notice that by taking the material collected during the

investigation which forms a part of the charge sheet as it is, the Special

Court had recorded a prima facie finding regarding the absence of any

material to show intention on the part of the accused to further the

activities of CPI (Maoist). The High Court has not recorded prima facie
43

finding on this aspect. By applying the law laid down in the case of

Watali (supra), there were no reasonable grounds for believing that the

accusations against the accused nos.1 and 2 of commission of

offences under Sections 38 and 39 were prima facie true.

37. There are other relevant factors which need consideration. The

Special Court while enlarging the accused nos.1 and 2 on bail had

imposed most stringent conditions, such as furnishing of bail bonds of

Rs.One lakh with two sureties each for the like amount with further

condition that one of the sureties shall be one of the parents of the

accused and the other surety, shall be a relative of the accused. There

was a condition imposed of marking attendance on every first Saturday

of every month at local police station. There was also a condition

imposed on the accused of not associating in any manner or supporting

in any manner activities of CPI (Maoist) and all its formations. The

accused nos.1 and 2 were directed to not leave territorial limits of the

State of Kerala without permission of the Special Court. Moreover,

SHO of the concerned police station was directed to monitor the

activities of both the accused. It is not the case of the prosecution that

any conditions were breached by any of the accused after they were

enlarged on bail.

44

38. As held in the case of K.A. Najeeb (supra), the stringent

restrictions imposed by sub-section(5) of Section 43D, do not negate

the power of Constitutional Court to grant bail keeping in mind violation

of Part III of the Constitution. It is not disputed that the accused no.1 is

taking treatment for a psychological disorder. The accused no.1 is a

student of law. Moreover, 92 witnesses have been cited by the

prosecution. Even assuming that some of the witnesses may be

dropped at the time of trial, there is no possibility of the trial being

concluded in a reasonable time as even charges have not been

framed. There is no minimum punishment prescribed for the offences

under Sections 38 and 39 of the 1967 Act and the punishment can

extend to 10 years or only fine or with both. Hence, depending upon

the evidence on record and after consideration of relevant factors, the

accused can be let off even on fine. As regards the offence under

Section 13 alleged against accused no.2, the maximum punishment is

of imprisonment of 5 years or with fine or with both. The accused no.2

has been in custody for more than 570 days.

39. It is true that without recording a satisfaction as contemplated by

sub-section (5) of Section 43D, the order granting bail to the accused

no.1 could not have been confirmed by the High Court. However, we

have examined the material against both the accused in the context of
45

sub-section (5) of Section 43D. Taking the materials forming part of the

charge sheet as it is, the accusation against both the accused of the

commission of offences punishable under Sections 38 and 39 does not

appear to be prima facie true.

40. In view of the findings which we have recorded above, the appeal

preferred by the accused no.2 is allowed. The impugned Judgment

and Order of the High Court to the extent to which it sets aside the

order granting bail to him is quashed and set aside and the Order dated

9th September 2020 of the Special Court For the Trial of NIA Cases at

Ernakulam in Crl. Misc. Petitions Nos.55-56/20 in SC No.1/2020/NIA

granting bail to him is hereby restored. The accused no.2 shall be

produced before the Special Court within a maximum period of one

week from today to enable him to complete the bail formalities by

furnishing the fresh bonds. We also make it clear that all the conditions

imposed by the Special Court are restored.

41. The appeal preferred by Union of India is dismissed and the order

granting bail to the accused no.1 is confirmed.

42. We clarify that the observations and findings recorded in this

Judgment are only for the limited purposes of considering the

applications for bail made by the accused nos. 1 and 2. The Special
46

Court shall not be influenced by the said observations and findings

while applying its mind to the question of framing charge as the

considerations for framing charge are different. The Special Court will

not be influenced by the observations made in this Judgment during the

trial of the case.

…………..…………………J
(AJAY RASTOGI)

…………..…………………J
(ABHAY S. OKA)
New Delhi;

October 28, 2021.



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