Accused-appellant v. Special Judge, NIA, Assam, Guwahati

ARGUMENTS It has been submitted, on behalf of the appellant, that the NIA has reli 10) ed upon the statement of PW 40, PW 44 and PW 54 to link the appellant with the a ctivities of the UNLF falsely alleging therein that the appellant is an active m ember of UNLF, though the allegation that the appellant is an active member of U NLF is based on conjectures and surmises and not on evidence. 11) Learned counsel for the appellant has submitted that the NIA, having rea lized that there is total lack of evidence to implicate the appellant with the U NLF, forced PW.105, Sri Lourembam Surendar Singh, President of AMSU, to give sta tement against the appellant. 12) It has been pointed out, on behalf of the appellant, that the NIA has st ated that AAMSU is the frontal organization of UNLF and, therefore, PW105, being its President, ought to have also been made an accused or an approver on the ba sis of the aforesaid statement made by him that AAMSU was receiving money from U NLF, but PW1 has been left out in order to use him against the present appellant . 13) Learned counsel for the appellant has disputed the allegation of attribu ting certain electronic communications to the appellant pointing out the discrep ancy in the seizure of laptop. 14) It has been submitted, on behalf of the appellant, that there is no mate rial on record to suggest that appellant, directly or indirectly, raised or coll ected funds for any activity of the UNLF. On the contrary, according to the lear ned counsel for the appellant, the NIA has falsely alleged that the appellant, b eing the President of NEMSO, was the recipient of funds from the UNLF. Therefore , even assuming that the e-mails indicating financial transactions between the U NLF and the appellant are true, these do not relate to funds collected or raised by the appellant or provided by him to any person for the commission of any ter rorist act. Referring to the decision of this Court, in the case of co-accused S. Ra 15) kesh Singh (Crl App No 146/2011), learned counsel for the appellant has submitte d that mere entry, in the statement of account of UNLF, by itself, cannot be hel d to be an adequate evidence on which conviction of the appellant can be based. Learned counsel for the appellant has contended that NIA has miserably failed to establish that the appellant is an active member of UNLF in order to implicate and convict the appellant under Section 20 of the UA (P) Act. Learned counsel fo r the appellant has submitted that Smti. M Longdhoni Devi and S. Rakesh Singh, w ho were similarly held as active members of UNLF, have already been extended the privilege of regular bail by this Court. 16) In reply to the submissions, made on behalf of the appellant, learned St anding counsel, NIA, submits that UNLF is a declared terrorist organization in t erms of the Schedule of the UA (P) Act and the appellant is an active member of the said organization. It has been submitted, on behalf of the NIA, that the i nvestigation reveals that United National Liberation Front, (hereinafter called the UNLF), is involved in criminal conspiracy to wage war against India by indul ging in fund raising and heinous terrorist acts, threatening the unity, integrit y, security and sovereignty of India by striking terror, causing, thus, death, i njury, loss, damage and destruction of properties. 17) It has been pointed out, on behalf of the NIA, that the UNLF, as a terro rist organization, is involved in several violent incidents of maiming, murder, kidnapping, weapon snatching, extortion and so on in Manipur. During the course of investigation of the instant case, details of 149 violent incidents, as commi tted by UNLF, were obtained from the lawful retrieval of the e-mail communicatio ns of the accused persons and, further, FIRs, relating to 29 cases of the 149 in cidents mentioned hereinbefore, have been obtained, which establish that the mem bers of UNLF have been indulging in terrorist acts in pursuance of UNLF’s stated objectives of fighting the Indian State. The statement of PW 44 and D-21 as wel l as D-65 corroborate the facts so indicated. 18) By referring to the documents and papers relied upon by the prosecution, it has been submitted, on behalf of the NIA, that the UNLF, as a terrorist orga nization, collects funds for its terrorist activities from public functionaries, Government servants of various departments including, but not limited to, Publi c Work Department, Flood Control Department and Food Corporation of India. The UNLF forces them to part with a percentage of food grains as well as government money by threatening to kill and, thus, indulges in extortion. UNLF also overawe s, by means of criminal force and show of criminal force, such as, throwing of g renades at public servants and their residential premises. UNLF indulges in caus ing death and injuries to several persons. UNLF has as armed wing named as Manip ur People’s Army (MPA) and as per the evidence collected so far, this armed wing of UNLF has killed hundreds of people and injured many more. UNLF is also invol ved in extortion of money from the government servants by putting them under the threat of death. 19) Referring to the statements of PW. 34, 39, 41, 56, 57 and the documents in E.64 (2 and 3), E.72 (2 to 18), learned standing counsel, NIA, has submitted that the UNLF, for carrying out their activities, prepared yearly budget raising various sources of revenue and the sources of funds included extortion from Cen tral Govt. departments, State Govt. departments, businessmen and professionals s o as to help UNLF procure highly sophisticated weapons to wage war against the G ovt. and to terrorize the people. 20) Referring to the above materials, it has been submitted, on behalf of th e NIA, that UNLF purchased AK 47, M 16 rifles, etc, from foreign countries. Ove r and above, it also raised armed cadres in the state of Manipur as well as in t he Republic of the Union of Myanmar in tune with that of the Indian army. The U NLF cadres are equipped with highly sophisticated weapons procured from foreign countries. Such facts stand well established from the Document E-13(3), e-mails and the statements of PW44 and 45. 21) It has been contended, on behalf of NIA, that the above activities of UN LF has established as to how, over the years, systematic extortion of funds from different Central and State govt. schemes were carried out and used for terror ist activities. 22) Referring to the above documents, learned counsel for the NIA has also p ointed out that investigation has established as to how UNLF has been raising ar ms; the manner in which the UNLF distributed weapons for terrorist acts to its c adres recruited for the purpose and for waging war against the nation. Referrin g to the statements of PWs 2, 22, 23 together with D-28, D-29, learned standing counsel, NIA, contended that the materials so found show that the appellant is a n active member of the terrorist organization, UNLF, in the garb of students’ or ganization like NEMSO and AAMSU to run the activities of the UNLF and the appell ant is, thus, an integral part of the conspiracy hatched by the UNLF to wage war against the State and to commit terrorist acts. 23) The NIA has alleged that the appellant, at the behest of UNLF and with c lose proximity of UNLF top echelons, fully committed to render his services for the outfit and his services were being utilized by the outfit as mouthpiece to g arner and mobilize mass support through media outlets and systemic campaigning u sing the platform of frontal organizations, such as, AMSU (All Manipuri Students Union) and NEMSO (North East Manipuri Student Organization) working over ground as white collar gentlemen. 24) It has been pointed out, on behalf of the NIA, that during investigation , it came to light that the appellant acted as perpetrator in mobilizing support and induction of innocent (Meitei) community for UNLF outfit in persuasion of v arious vicious plans organizing meetings, at secret places, with top leaders of the outfit. 25) With reference to the ground taken in para (ii), it is submitted that in April 2010, a stretch of NH-39 (NH 39 starts from Numuligarh, Assam runs throug h Dimapur-Kohima-Imphal and ends at Moreh), which connects Dimapur with Imphal, was blocked by Naga Groups, resulting in restriction of goods transportation to Imphal via Dimapur. Initially this economic blockade continued for 68 days. The UNLF, with their aim and object of secession of Manipur from India, utilized the situation by creating an anti-India atmosphere, in Manipur, by convincing the g eneral public of Manipuri people that the Indian Union has had been neglecting t he needs and necessities of the Manipuri people. The UNLF, in order to provoke t he anti Naga as well as anti India sentiments, in the minds of general public of Manipur, started its campaign through its Frontal Organizations, such as, AMSU and NEMSU. 26) UNLF gave its Frontal Organizations, especially, AMSU and NEMSO, a twofo ld task on the issue of NH 39 blockade; first, for conducting Public Meetings, D emonstrations, Protest March, etc., and second, for disruptive and violent activ ities. 27) It has been pointed out, on behalf of the NIA, that the UNLF wanted to b lock the starting stretch of NH 39 (i.e. from Numuligarh, Assam, to Dimapur), so that the supply of goods to the State of Nagaland from Assam side is stopped. F or this purpose, they activated their Frontal Organizations, Students Unions and NGOs. This is evident from the documents lawfully recovered from e-mail account s of R K Meghen (A19) and Nongyai (A18) based on their disclosure statements. In one such e-mail, Chairman of the UNLF, Meghen (A 19), clearly writes to the org anizational Secretary, Nongyai (A18), that: (cid:28)When we have decided that no truck should run in NH 39, then how come some driv ers are running their truck. Tell AAMSU (All Assam Manipuri Students’ Union) to burn down 1 or 2 trucks so that no one dares to run the truck that side and the incident of Ardonmust get and effective media coverage. (cid:29) In response to this letter Nongyai (A18) writes that: (cid:28)I will tell AAMSU to burn down 1 or 2 truck of non-Manipuri’s of Assam side of NH 39. (cid:29) Copy of the email E-98 would support the above fact. (cid:29) Copy of the email E-98 will show the above. upplied) It has been pointed out by the prosecution that subsequently, trucks wer 28) e burnt on NH 39 during the aforesaid period in due compliance of the above dire ctions. (Emphasis is s ROLE OF THE APPELLANT (a) Membership of UNLF, a terrorist organization 29) Facts, as prima facie revealed from the prosecution case, by producing t he statement of the witnesses, the documents [E.13 (3)] and the lawful retrieval of e-mails recovered, coupled with the statement of PW.44 and 45, support that UNLF was collecting funds by resorting to various extortion activities and such funds were collected not only from private individuals, but also from transporte rs, businessmen, Central and State Govt. Departments. By producing the document s [E.64 (2 and 3] and E.72 (2 to 18), the lawful retrieval of e-mails, NIA has p rima facie shown the visits of its cadres to China to procure arms and violent a ctivities carried out by UNLF. The scrutiny of e-mails, prima facie, provides ma terials to substantiate that UNLF waging war against the Nation. 30) That the above activities prima-facie establish as to how UNLF has, over the years, systematically extorted funds from different central and State gover nment sponsored schemes and used them for terrorist activities. It is also seen as to how in order to procure arms and ammunitions from the neighboring countrie s, UNLF had established contacts with foreign agents. It would further transpire as to how UNLF, as a part of its ongoing conspiracy, had struck deal with forei gn agents to provide information on India’s missile technologies. Apparently, th e investigation has depicted as to how UNLF had raised funds, distributed the (cid:28)p roceeds of terrorism (cid:29) amongst its cadres, recruited and trained its manpower in the State of Manipur and outside for waging war against the country. As revealed by the prosecution, the activities of UNLF, pertaining to the aforementioned ac tivities, have become a major challenge to the sovereignty and security of India . 31) In any view of the matter, the fact that UNLF is a scheduled terrorist o rganization has not been disputed before us. This relieves the Court from making a threadbare inquiry into the activities of the UNLF, because commission of ter rorist activities, in an organized manner, is a condition precedent for declarin g an organization as a terrorist organization as envisaged by the provisions of Chapter VI of the UA (P) Act. 32) Coming to the statement of witnesses, we find that the statement of PW 1 05, Sri Lourembam Surendar Singh, prima facie, shows that the appellant used to muster funds from UNLF. The statement, in brief, reads as follows: (cid:28)On being asked , I say knew that Maniton was linked with ULNLF and has been rec eiving money from UNLF for student activities, but as we had no other fixed sour ce of funding for Union’s activities, we had nooter choice except ignoring this fact. Maniton requested me more than once to organize protest to counter economi c blockade on NH-39 which was done by NSCN (IM). Initially I refused but as he w as fully funding this, I presented a memorandum for Prime Minister of India thro ugh Dy Commissioner of Cacher District after organizing a peace rally. Later on I came to know that this instruction was given to him by UNLF. In September 2010 , he was arrested by Assam Police and subsequently by NIA as a member of UNLF. I have produced photocopy of the abovementioned memorandum and relevant budgets s ubmitted to Moniton for sanction, to NIA. (cid:29) Though it has been argued by the learned counsel for the appellant that 33) the statement of PW 105 has been obtained in a mala fide manner and that he coul d not have been possibly cited as a witness, the fact remains a fact that, as on today, there exists, on record, a statement of a person, cited as witness, who has stated that the appellant used to receive funds from UNLF and it was under t he instructions of UNLF that activities, like economic blockade, were carried ou t. 34) The appellant, by his act of inviting and ensuring support for economic blockade, under the instructions of UNLF, committed acts in order to counter the constitutional scheme of governance in India and, until shown otherwise, the ap pellant’s acts, in the manner as have been done to further the activities of UNL F, threaten the very sovereignty and integrity of India. 35) It has also been argued by the learned counsel for the appellant, as poi nted out above, that the there are no materials to justify that the appellant wa s an active member of UNLF. 36) The question of active membership, as argued by the learned Counsel for the appellant, also arose in the case of Anup Bhuyan, Criminal Appeal No. 889 of 2007, but the ratio of the said case, decided by the Supreme Court, may not be applicable to the present set of facts, because the case of Anup Bhuyan (supra) dealt with membership of a terrorist organization under Section 3 (5) of the TAD A Act, wherein the term ’membership’ was not defined; whereas the term ’membersh ip’ has been defined in the present UA (P) Act. The appellant, having alleged to have committed an offence under the UA (P) Act, the term membership must be und erstood in the light of the definition of ’member’ as provided under Section 38 of the UA (P) Act. Section 38 of the UA (P) Act provides the following definition; 37) (1) A person, who associates himself, or professes to be associated, with a terr orist 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 ti me 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 Schedule as a terrorist organisation. (2) A person, who commits the offence relating to membership of a terrorist orga nisation under sub-section (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or with both. 38) Section 3(5) of the TADA Act simply provided punishment for being member of a terrorist organization or a terrorist gang. The definition, under TADA Act , thus, necessitated judicial interpretation of the term ’member’. So far as me mbership of a terrorist organisation, under the UA(P) Act is concerned, Section 38, now, provides that if a person associates himself, or professes to be associ ated, with a terrorist organisation with intention to further its activities, he becomes a ’member’ of the terrorist organisation. The discerning feature lies i n the terms associates himself, or professes to be associated. Section 38, on a bare reading, conceives two different categories of persons, who can be termed a s members. Firstly, those, who associate themselves with such an organization an d, secondly, those, who profess to be associated with such an organization. 39) Thus, even a person, who is an ideologue of a terrorist organisation an d distributes literatures and pamphlets to publicise the activities of such an o rganization with intention to further the activities of such an organization, ca n be termed as a member. It is not conceivable that, in order to attract the la bel of member, under Section 38, a person shall be actually involved in carrying out terrorist activities. 40) Naturally, therefore, if a person, such as, the present appellant, assoc iated himself in the activities of a terrorist organization, such as, the UNLF, with the intention to further its cause with the help of its frontal organizatio n, such as, AMSU, indulged in economic blockade in terms of e-mail, which is men tioned above, cannot, but be described, under Section 38 of the UA(P) Act, as a member of a terrorist organization. In the present case, when there is evidence of even one witness to show 41) that the appellant used to receive funds from the UNLF to carry out activities, as directed by the UNLF, under the colour of student activities, and the stateme nt, coming from one of the office bearers of the frontal organization, in this r egard, cannot, at this stage, be questioned. In other words, the statement, whi ch has come from the office bearer of AMSU, has to be assumed as true until show n otherwise. Thus, there being materials to justify that the appellant used to receive funds from UNLF and the funds, so received by the appellant, were spent for furthering the activities of the UNLF, the appellant cannot but be regarded as an active member of the said terrorist organization. 42) The materials, including the retrieved e-mails, collected during investi gation, also show, until proved otherwise, that budget was allocated to the memb ers of different organizations, such as, AAMSU and NEMSU, and the appellant, as the President of NEMSU, received huge amount of money to take up such activities as directed by the UNLF from time to time. 43) Thus, an inference, though tentative, can be drawn that the appellant is a member of UNLF, which is an offence punishable under Section 38 of the UA (P) Act, falling under Chapter VI of the UA (P) Act. (b) Conspiracy with UNLF According to the prosecution’s case, the top echelons of UNLF, for the f 44) ulfillment of conspiracy and in order to conveniently carry out their activities , selected Guwahati city as safe and secure place. The funds, raised in Manipur by extortion, were brought to Guwahati by human couriers and sent to Republic of Nepal, Republic of Bangladesh and Republic of Myanmar for UNLF. The present app ellant was arrested, on 08-9-10, from a rented house, at Hastinapur, Narayanpur, House No-3, Dispur. When search was made by the Assam police, many suspicious a rticles had been seized from the possession of the accused like- (i).One Accer L aptop, (ii). One Spice Mobile Hans Set, (iii). One Aircel SIM card, (iv). Two No s of Airtel SIM and one Vodafone SIM, (v). One Maxter 80GB Hard Disk, (vi).One P anasonic Handy Cam, (vii). One Sony Digital Camera, (viii). Two Nos of CDs (ix). One Battery Charger with Sony Digital Camera Battery etc. This has been stated by PW-21, Sri Akshay Kumar Das, a retired Assistant Engineer, Hastinapur, Naraya npur of Dispur. He is the landlord of the house from where the present appellant was arrested by the Assam Police. The relevant portion of the statement of PW- 21 are as follows.- (cid:28)It is fact that on 8 Sept 2010 at late night, local police raided the rented ro om of in possession of Sh. Moniton Singha of my house. During that time myself a nd other tenant were present at our respective rooms. In front of us police offi cers made enquiries from Moniton Singha during which he revealed that he is a ac tive member of banned organization UNLF of Monipur and holding the post in the o rganization. Thereafter police officers requested myself and one tenant namely C handrajyoti Kakaty to witness the search of room of in possession on Moniton Sin gha. 45) We may pause here to point out that though the confession, made by the a ccused-appellant, to the police, in the presence of PW21, was not admissible in evidence, it was, nonetheless, an important piece of material for further invest igation of the case and, consequently, the statement, so made, which provided th e lead, could not have been ignored or brushed aside, while considering the bail application by the learned trial Court. 46) The Interim Forensic Report, as mentioned, has volume of data pertaining to UNLF and has been retrieved from the seized electronic items. The Statements of PW-21, 22, and 23, D-28, the Arrest and Inspection Memo and D-29, Seizure l ist of Recovery, prima facie lend credence to the above. 47) So far as the offence of conspiracy under the UA (P), Act is concerned, the relevant provisions underwent some amendments in the year 2004 and in the ye ar 2008. The changes brought with respect to offence of conspiracy are as follow s: CHANGES IN THE OFFENCE RELATING TO CONSPIRACY ETC. TO COMMIT TERRORIST ACT Under the Act of 2004, Section 18 read as under: 48) (cid:28)18. Punishment for conspiracy, etc.-Whoever conspires or attempts to commit, or advocates, abets, advises or incites or knowingly facilitates the commission of , a terrorist act or any act preparatory to the commission of a terrorist act, s hall be punishable with imprisonment for a term which shall not be less than fiv e years but which may extend to imprisonment for life, and shall also be liable to fine. (cid:29) 49) A reading of Section 18 of the Act of 2004 makes it clear that not only conspiracy to commit terrorist act is made punishable, but attempting, advocatin g, abetting, advising, inciting the commission of a terrorist act is also made p unishable. It also goes further by adding the term knowledge. Thus, it is not ne cessary that the person must intend to aid a terrorist act in order to be held l iable for an offence under Section 18 of the Act of 2004; it would be sufficient , for the purpose of attracting the penal provisions of Section 18, if the prose cution is able to prove that an accused had the knowledge that his act or omissi on would facilitate the commission of a terrorist act. 50) Now, Section 18, as it stood in the Act of 2004, has been modified, by t he UA(P) Act, 2008, by substituting, in place of the words (cid:28)incites or knowingl y facilitates\, the words \incites, directs or knowingly facilitates\. This beco mes clear, when we read Section 18 as stands amended in the UA (P) Act, 2008. Se ction 18 is, therefore, reproduced below: (cid:28)18. Punishment for conspiracy, etc. -Whoever conspires or attempts to commit, o r advocates, abets, advises or incites, directs or knowingly facilitates the com mission of, a terrorist act or any act preparatory to the commission of a terror ist act, shall be punishable with imprisonment for a term which shall not be les s than five years but which may extend to imprisonment for life, and shall also be liable to fine. (cid:29) 51) A bare reading of Section 18 shows that though punishment, under Section 18, remains unchanged, Section 18 makes not only the person, who conspires or attempts to commit or advocates, abets, advises commission of a terrorist act or of any act preparatory to the commission of the terrorist act, but also when th e person concerned incites, directs or knowingly facilitates commission of a ter rorist act or any act, preparatory to the commission of terrorist act, meaning t hereby that the person would fall within the ambit of Section 18 if he directs a n act, which would facilitate not only commission of a terrorist act, but also a n act, which is preparatory to the commission of a terrorist act. Thus, the scop e of the nature of conspiracy has been widened by including those persons, who d irect an act, which may be, otherwise, irrelevant, but is connected to either a terrorist act or an act, which is preparatory to the commission of terrorist act . To put it a little differently, the ambit of Section 18 has been widened and i f the materials on record give rise to a reasonable ground to believe that an ac cused prima facie had the knowledge that his acts or omissions would facilitate a terrorist act, he would be liable for punishment under Section 18. 52) It does not appear necessary for sustaining a charge under Section 18 of the UA (P) Act that there must be direct allegations of committing a terrorist act, rather, if there exist circumstances that an accused committed an act, whic h was preparatory for the commission of terrorist act, the charge under Section 18 may be sustained. 53) In the present case, the basic allegation against the appellant is that he provided logistic over-ground support to UNLF with intention to further the a ctivities of UNLF. The logistic support pertained to communications. The seizure of Laptop, Mobile Hand Set, SIM cards of different operators, 80GB Hard Disk, H andy Cam, Digital Camera, CDs, Battery Charger, Digital Camera Battery etc, othe rwise appear to be items of general nature and no offence, ordinarily, can possi bly be made out if a person is found to be possessing these items. However, the seizure of these items, from the possession of appellant, assumes immense signif icance, because of the information retrieved from these appliances. Exchange of communication is the most indispensable necessity for carrying out terrorist act ivities and, at the same time, most difficult hurdle for underground activists, since communications made, through electronic media, may be intercepted and subv ersive plans may get derailed. Thus, it becomes necessary, for underground activ ist, to exchange communication in a discreet manner and it is for this purpose s uch organizations have non-descript people, who appear to be naive and beyond su spicion. 54) Now, if the directions of the top brass of the UNLF had not reached the student organizations, of which the appellant was one of the office bearer, by e lectronic media, the burning of trucks, the economic blockade, the budgeting and all other terrorist activities could also, possibly, have failed. The appellant , who happened to be representing a student organization, fitted into the role o f a naive character, in providing communication logistics to the UNLF. The mater ials against the appellant, prima facie, raise an inference that he, by providin g logistic support, knowingly facilitated the commission of terrorist acts or ac ts preparatory to terrorist acts. 55) Even though the learned Counsel for the appellant has argued that there is a discrepancy with regard to the laptop seized from the possession of the app ellant and the laptop, which was actually examined by the FSL. It is, in this r egard, important to bear in mind that the inquiry, on these aspects, can be unde rtaken, while considering the charges against the appellant, for, this Court, wh ile sitting as an appellate Court, if records a conclusive finding on the seizur e, there is every likelihood of causing prejudice to either side. Hence, it woul d not be proper to record a finding on such an aspect of the case. 56) Thus, the evidence, gathered during investigation prima-facie reveal the connection of the appellant with the UNLF to provide active over-ground support for carrying out the activities of the UNLF. The materials, which prima facie a ppear to be true, thus, go to show that the appellant associated himself, or pro fessed to associate himself, with terrorist organization, UNLF, in the garb of s tudent organizations like AMESO and NEMSO and actually furthered the activities of terrorist organization, UNLF. A perusal of the documents, submitted along wit h the charge sheet, would show that there are reasonable grounds for believing t hat accusations against the appellant are prima facie true. LIMITATIONS ON GRANTING BAIL FOR OFFENCES, WHICH FALL UNDER CHAPTER IV AND VI OF UA (P) ACT ? POSITION OF LAW AS ALREADY LAID BY THIS COURT: 57) What, now, needs to be noted is that this Court has held, in Jayanta Kum ar Ghosh Vs. State of Assam, reported in 2010 (4) GLT 1, that Special Court, con stituted under the NIA Act, when considers a bail application, the consideration is really under Section 437 of the Code, which is, ordinarily, meant for Judici al Magistrates, and the special power, which, otherwise, stands vested in a Sess ions Court under Section 439 of the Code, does not apply to a Special Court, tho ugh even a Court of Session may be notified as a Special Court by the Central Go vernment in exercise of its powers under Section 11. This apart, this Court has held, in Jayanta Kumar Ghosh (supra), that besides the limitations, which Sectio n 437(1) imposes on the Magistrate’s power to grant bail, in a case, where there appears reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, there is yet another li mitation, which is imposed, on the power of the Special Court, by the proviso to Sub-Section (5) of Section 43D of the UA(P) Act. 58) Let us, now, determine as to what limitations the Special Court ran, in the present case, in the matter of granting of bail to the accused-appellant. Wh ile considering this aspect, it needs to be noted that the appellant herein is a ccused of having committed offences under Sections 120(B)/121/121(A)/122 of the IPC, read with Sections 16/17/18/20 of the UA(P) Act. 59) Considering the fact that it is the proviso to Section 43D(5) of the UA( P) Act, which puts severe restrictions on the Special Court’s power to grant bai l, it is imperative to take note of what the proviso to Section 43D(5) conveys. For the sake of clarity, Sub-Section (5) of Section 43D, which is of utmost impo rtance, is reproduced below: (cid:28)(5) Notwithstanding anything contained in the Code, no person accused of an off ence punishable under Chapter IV and VI of this Act shall, if in custody, be rel eased 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 bo nd 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 believi ng that the accusation against such person is prima facie true. (cid:29) (Emphasis is added) 60) A bare reading of Sub-Section (5) of Section 43D shows that apart from t he fact that Sub-Section (5) bars a Special Court from releasing an accused on b ail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail, the proviso to Sub-Section ( 5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail by laying down that if the Court, on perusal of the c ase diary or the report made under Section 173 of the Code of Criminal Procedure , is of the opinion that there are reasonable grounds for believing that the acc usation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UA(P) Act, is prima facie true, such an acc used person shall not be released on bail or on his own bond. Thus, if the Special Court, on perusal of the case diary, forms an opini 61) on that there are reasonable grounds for believing that the accusation, against an accused person, of the commission of offence or offences, under Chapter IV an d/or Chapter VI, is prima facie true, it will not remain within the powers of th e Court to grant bail in such a case. The above position of law is further made clear by Sub-Section (6) of S 62) ection 43D, which lays down that the restrictions, on granting of bail specified in sub-Section (5), are ’in addition to the restrictions under the Code of Crim inal Procedure or any other law for the time being in force on grating of bail’. 63) The logical conclusion would, therefore, be that in a case, investigated by the NIA, when the Special Court forms an opinion that there are reasonable g rounds for believing that the accused has committed an offence punishable with d eath or imprisonment for life, the Special Court would have no jurisdiction to g rant bail to such an accused except as may be provided by law. In addition there to, the Special Court shall also not be able to release an accused on bail if th e Court, on perusal of the case diary or the report made under Section 173 of th e Code of Criminal Procedure, is of the opinion that there are reasonable ground s for believing that the accusation, against such person, as regards commission of offence or offences, under Chapter IV and/or Chapter VI of the UA(P) Act, is prima facie true. In the backdrop of Clauses (i) and (ii) of Section 437(1) of the Code, w 64) hen one reverts to Section 43D(5), what surfaces is that the proviso to Sub-Sect ion (5) of Section 43D, (which lays down that notwithstanding anything contained in the Code of Criminal Procedure, no person accused of an offence, punishable under Chapter IV and VI of the NIA Act shall, if in custody, be released on bail or on his own bond if the Court, on a perusal of the case diary or the report m ade under Section 173 Cr.P.C. is of the opinion that there are reasonable ground s for believing that the accusation against such person is prima facie true), ca n be treated to be, and can, by legal fiction, be read, as Clause (iii) of Secti on 437(1) of the Code. CONCEPT OF PROVISO TO SECTION 43 D (5) 65) Dealing with the concept of the proviso to Section 43D(5), a Division Be nch, in Jayanta Kumar Ghosh (supra), observed and held as to what the expression prima facie and the expression true, which appear in the proviso to Section 43D Before proceeding further, it is also, to our mind, necessary to ascerta (5), convey. The relevant observations, made in this regard, read as under: (cid:28)63. in as to what the scope of the proviso to Section 43-D(5) is and when would this proviso be attracted. While dealing with this aspect of the appeal, it is nece ssary to bear in mind that the proviso to Section 43-D(5) states that such accus ed person shall not be released on bail or on his own bond if the Court, on a pe rusal 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’. The expression, ’prima facie true’ i s an expression, which does not, ordinarily, appear in penal statutes. 64. Let us, therefore, ascertain as to what the word ’prima facie’ means. Th e word, prima facie, has been described in the Black’s Law Dictionary as: (cid:28)suffi cient to establish fact or raise a presumption unless disproved or rebutted (cid:29). Re buttable presumption means an inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary eviden ce. Rebuttable resumption also means prima facie presumption or disputable presu mption or conditional presumption. 65. The Concise Dictionary of Collins has defined, prima facie, as an adject ive thus: (cid:28)At first sight; as it seems at first. (cid:29) (cid:28)And prima facie evidence is a n evidence that is sufficient to establish a fact or to raise a presumption of t he truth unless controverted. (cid:29) 66. Warton’s Law Lexicon defines that a prima facie case does not mean a cas e proved to the hilt, but a case, which can be said to be established if the evi dence, which is led in support of the same, are believed. 67. t p. 530 (AIR 1958 SC 79 at p. 85), observed thus: (cid:28) & & &. A prima facie case does The Supreme Court, in Marlin Burn Ltd. V. R. N. Banerjee, 1958 SCR 514 a not mean a case proved to the hilt, but a case, which can be said to be establi shed if the evidence, which is led in support of the same, were believed. While determining whether a prima facie case had been made out, the relevant consider ation is whether, on the evidence led, it was possible to arrive at the conclusi on, in question, and not whether that was the only conclusion, which could be ar rived at on that evidence. (cid:29) 68. The meaning of the word, ’prima facie’, given in Marlin Burn Ltd. (supra ), has been followed by the Supreme Court, in its later decision, in The Managem ent of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. Vs. B. Dasappa, M.T. represented by the Binny Mills Labour Association, reported in (AIR 1960 SCC 13 52). From the meaning, attributed to the word, ’prima facie’, by various dict 69. ionaries, as indicated above, and the observations, made by the Supreme Court, i n its decisions, in The Management of the Bangalore Woollen Cotton and Silk Mill s (supra), what clearly follows is that prima facie is a Latin word, which mean s, ’At first sight or glance or on its face’ and, in common law, it is referred to as ’the first piece of evidence of fact’, i.e., considered true unless revoke d or contradicted. 70. In the face of the above observations made by the Supreme Court, it may be construed that prima facie case would mean whether the inference drawn is a p ossible inference or not. 71. The word, ’true’, according to Collins Dictionary, means something, whic The word, ’true’ has been defined, in World Book Dictionary, as (cid:28)Agreein h is not false, fictional or illusory, but factual and confirming with reality o r exactly in tune. Webster’s Third New International Dictionary defines True as : (cid:28)Something, which is in accordance with fact or reality (cid:29). 72. g with fact, not false (cid:29). 73. Thus, the expression, ’prima facie true’, would mean that the court shal l undertake an exercise to determine as to whether the accusations, made against the accused, are inherently improbable and/or wholly unbelievable. Ordinarily, while considering a complaint, made against an accused, the court assumes the c ontents of the complaint to be true and correct and, then, proceed to decide as to whether the allegations, made in the complaint, make out a case of commission of offence by the accused or not. No exercise is required to be undertaken by the court to determine the truthfulness or veracity of the accusations. However , when the word, ’prima facie’, is coupled with the word, ’true’, it implies tha t the court has to undertake an exercise of cross-checking the truthfulness of t he allegations, made in the complaint, on the basis of the materials on record. If the court finds, on such analysis, that the accusations made are inherently improbable, or wholly unbelievable, it may be difficult to say that a case, whic h is prima facie true, has been made out. 74. The term ’true’ would mean a proposition that the accusation brought aga inst the accused person, on the face of the materials collected during investiga tion, is not false. The term false again would mean a proposition, the existence of which cannot be a reality. While arriving at a finding whether there are rea sonable grounds for believing that the accusation against the accused is prima f acie true or false, the Court can only look into the materials collected during investigation; and, on its bare perusal, should come to a finding that the accus ation is inherently improbable. However, while so arriving at a finding, the Cou rt does not have the liberty to come to a conclusion, which may virtually amount to an acquittal of the accused. (Emphasis added)

75. In the case of State of Gujrat vs Gadhvi Rambhai Nathabai, reported in ( 1994)5 SCC 111, the Supreme Court while dealing with the principles governing th e granting of bail under the TADA, observed : (cid:28)8.It is true that for the purpose of grant of bail, the framers of the Act re quire the Designated Court to be satisfied that there were reasonable grounds fo r believing that the accused concerned was not guilty of such offence but this p ower cannot be exercised for grant of bail in a manner which amounts virtually to an order of acquittal, giving benefit of doubt to the accused person after w eighing the evidence collected during the investigation or produced before t he court. At that stage the Designated Court is expected to apply its mind as to whether accepting the allegations made on behalf of the prosecution on their face, there are reasonable grounds for believing that the accused co ncerned was not guilty of the offence. At that stage the Designated Court is not required to weigh the material collected during the investigation. (cid:29) 76. In short, thus, on a bare reading of the materials, as may have been col lected during investigation, if the Special Court finds that the materials, so c ollected, are sufficient to form, when assumed to be true, an opinion that there are reasonable grounds to believe that the accusations, made against the accuse d, are prima facie true, the Special Court will be dis-empowered from releasing the accused on bail. At the stage of bail, no minute scrutiny or microscopic di sSection of the materials, collected during investigation, shall be undertaken b y the Special Court. Credibility or otherwise of the materials collected would not be the subject-matter of scrutiny. What, at best, the Special Court can do, and shall do, is to examine if the accusations made, on the basis of the materi als collected, are wholly improbable. When the materials are, on examination by the Special Court, are found to be not wholly improbable and the Special Court finds, on assuming such materials to be true, that the accusations, made against an accused, as regards commission of an offence under Chapter IV and/or Chapter VI of the UA(P) Act, are prima facie true, such materials would be enough to at tract the bar imposed by the proviso to Section 43-D(5).

77. To put it a little differently, the Special Court is required to examine the materials, collected during investigation, assuming the same to be true and if, such materials, on such examination and consideration, are found to make ou t a case against the accused, the Special Court has to determine if there is any such thing in the materials, so collected, which would make the case, which has been made out against the accused, as a wholly improbable case. If the Special Court, on undertaking such an exercise, finds reasonable grounds to infer that the case, which has been made out against the accused, is not wholly improbable, the case would be treated as a case, which is sufficient for the Special Court to form an opinion that there are reasonable grounds to believe that the accusat ions, made against the accused, are prima facie true. The expression, ’reasonable ground’, means something more than prima fac 78. ie ground, which contemplates a substantially probable case for believing that t he accused is guilty of the offence(s) alleged. Under Section 437 CrPC, an accu sed is not to be released on bail if there appear reasonable grounds for believi ng that he has been guilty of an offence, which is punishable with death or impr isonment for life. Under Section 437 CrPC, the burden is on the prosecution to show existence of reasonable ground for believing that the accused is guilty. H ence, the presumption of innocence, which always runs in favour of the accused, is displaced only on the prosecution showing existence of reasonable ground to b elieve that the accused is guilty. (See Union of India vs. Thamissharasi, report ed in (1995) 4 SCC 190, and Union of India vs. Shiv Shankar Kesari, reported in (2007) 7 SCC 798). 79. Coupled with the above, the proviso to Section 43-D(5) does not require a positive satisfaction by the court that the case against the accused is true. What is required is a mere formation of opinion by the court on the basis of th e materials placed before it. The formation of opinion cannot be irrational or arbitrary. Such formation of opinion cannot be based on surmises and conjecture s; but must rest on the materials collected against the accused. Since the pres umption of innocence runs in favour of the accused, it logically follows that if there are, in given circumstances, grounds for believing that the case, against the accused, is true, a case of commission of offence under Chapter IV or Chapt er VI of the UA(P) Act, 1967, can be said to have been made out and when such a case is made out, it would be tantamount to saying that reasonable grounds exist for opining that the accusations are prima facie true. In such a case, the bar , imposed by the proviso to Section 43-D(5) on the court’s power to grant bail, gets attracted. 80. We may point out that Section 20(8) of the Terrorist and Disruptive Acti vities (Prevention) Act, 1987 (hereinafter referred to as ’the TADA Act’) (since repealed), laid down that no person, accused of an offence punishable under the said Act, or any rule made thereunder, shall, if in custody, be released on bai l, or on his own bond, unless, amongst others, the court is satisfied, where the Public Prosecutor opposes the application, that there are reasonable grounds fo r believing that he is not guilty of such offence and that he is not likely to c ommit any offence, while on bail. Section 20(9) of the Act made it clear that t he limitation on granting of bail, specified in sub-Section (8) of Section 20, i s in addition to the restrictions, which the Code of Criminal Procedure, or any other law, in force, imposes. 81. There are no corresponding provisions, in the NIA Act, as were present i n Section 20(8) and Section 20(9) of the TADA Act. Notwithstanding, however, th e fact that the provisions (as contained in sub-Section (8) and/or sub-Section ( 9) of Section 20 of the TADA Act) no longer find place in the NIA Act, the fact remains that even under the scheme of the NIA Act, the Special Court, as already discussed above, is a ’Court’ other than the High Court and Court of Session. In such circumstances, the limitations, imposed by Clauses (i) and (ii) of sub-S ection (1) of Section 437 CrPC, are applicable to the Special Court too. In add ition thereto, when a case falls within the ambit of the proviso to Section 43-D (5), there would be an additional bar, on the part of the Special Court, to rele ase an accused on bail, the bar being that the Special Court shall not release t he accused on bail or on his own bond if the Court, on 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 i s prima facie true. (cid:29) (Emphasis added) 66) Thus, we find that in the facts of the present case, the learned Special Court, having found that the allegations against the appellant were prima facie true, could not have granted bail to the appellant, because of the specific pro hibition in matters of granting bail provided under the proviso to Section 43 D (5) of the UA (P) Act. 67) In view of the findings of the learned Special Court, whether it is open to the High Court, while sitting as appellate Court, to disturb the finding arr ived at by the Special Court and, if so, what is the scope of the appellate juri sdiction of the High Court under the NIA Act, is an important question, which, n ow, needs to be looked into. HIGH COURT’S APPELLATE JURISDICTION UNDER SECTION 21(4) OF THE NIA ACT VIS-À-VIS HIGH COURT’S POWER UNDER SECTION 439 OF THE CODE: In the light of the law, laid down in Redaul Hussain Khan & ors. Vs. Sta 68) te of Assam and ors, reported in 2009 (3) GLT 855, and Jayanta Kumar Ghosh (supr a), let us, now, note the difference between High Court’s appellate jurisdiction under Section 21(4) of the NIA Act and the High Court’s power under Section 439 of the Code. 69) The scheme of the NIA Act, if analysed carefully, shows that accused has to apply for bail, if he so chooses, to the Special Court and if his prayer for bail is refused by the Special Court, then and then only, the accused may prefe r an appeal to the High Court in terms of Section 21(4) against an order refusin g to grant bail. In other words, without having applied for bail and the prayer for bail having been disallowed by the Special Court, a person, who is accused o f having committed a scheduled offence covered by the scheme of the NIA Act, can not directly apply for bail to the High Court under Section 439(1) or prefer an appeal under Section 21(4) of the NIA Act, against the Special Court’s order rej ecting his prayer for bail and seeking thereby an order of bail from the High Co urt. Similarly, if the Special Court grants bail, the State may prefer an appeal to the High Court, in terms of Section 21(4), seeking cancellation of such bail . Hence, without applying for bail to the Special Court, an accused, who is arre sted, cannot apply for bail to the High Court by taking recourse to Section 439 of the Code. 70) An order refusing or granting bail, in a case under the Prevention of Te rrorist Activities Act, 1987, too, was an appeallable order under Section 34 the reof. Explaining the parameters of the powers of the High Court, while consideri ng an appeal from an order granting bail and how it differed from an application for bail under Section 439 of the Code, the Supreme Court, in State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh and ors, reported in (2003) 8 SCC 50, observed as under: (cid:28)10. Sub-Section (4) of Section 34 of POTA provides for an appeal to the High C ourt against an order of the Special Court granting or refusing bail. Though the word (cid:28)appeal (cid:29) is used both in the Code of Criminal Procedure and the Code of Ci vil Procedure and in many other statutes but it has not been defined anywhere. O ver a period of time, it has acquired a definite connotation and meaning which i s as under: (cid:28)A proceeding undertaken to have a decision reconsidered by bringing it to a hig her authority, especially the submission of a lower court’s decision to a higher court for review and possible reversal. An appeal, strictly so-called, is one in which the question is, whether the orde r of the court from which the appeal is brought was right on the material which the court had before it. An appeal is removal of the cause from an inferior to one of superior jurisdicti on for the purposes of obtaining a review or retrial. An appeal, generally speaking, is a rehearing by a superior court on both law an d fact.

11. Broadly speaking, therefore, an appeal is a proceeding taken to rectify an e rroneous decision of a court by submitting the question to a higher court, and i n view of the express language used in sub-Section (1) of Section 34 of POTA the appeal would lie both on facts and on law. Therefore even an order granting bai l can be examined on merits by the High Court without any kind of fetters on its powers and it can come to an independent conclusion whether the accused deserve s to be released on bail on the merits of the case. The considerations which are generally relevant in the matter of cancellation of bail under sub-Section (2) of Section 439 of the Code will not come in the way of the High Court in setting aside an order of the Special Court granting bail. It is, therefore, evident th at the provisions of POTA are in clear contradistinction with that of the Code o f Criminal Procedure where no appeal is provided against an order granting bail. The appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing bail, the accused will have no right t o file an appeal before the High Court praying for grant of bail to them. Existe nce of an order of the Special Court is, therefore, a sine qua non for approachi ng the High Court. (cid:29) Referring to the above observations, made in Salimbhai Abdulgaffar Shaik In the light of the observations made above, it becomes clear that an ap 71) h (supra), this Court, in Redaul Hussain Khan (supra), held as under: (cid:28)98. peal is a proceeding to rectify an erroneous decision of a Court both on facts a s well as on law. An order, granting or refusing bail, could have been, in the l ight of the provisions of Section 34(4), examined on merit by the High Court wi thout any other fetters and while considering a question of cancellation of bail the general principles, governing Section 439(2) of the Code, would not come in the way. The Apex Court, in Salimbhai Abdulgaffar Shaikh (supra), while laying down that the scheme for appeal, under the POTA, is in contradistinction to that of the Code, pointed out that an appeal can lie only against an order of the Sp ecial Court and unless there is an order of the Special Court refusing or granti ng bail, the accused cannot prefer appeal to the High Court seeking bail. What, further, follows from the above discussion is that even a High court could not h ave invoked its power, under the Section 439, to grant bail to a person, accused of an offence under the POTA. Consequently, in order to obtain release on bail , an accused person, arrested under the POTA, was required to, first, apply for bail to the Special court, where the Special Court was constituted, or to the Co urt of Session, where the Special Court was not constituted, and, if his applica tion for bail was rejected, then and then only he could have preferred an appeal