NIA CASE No. 01 of 2010 · Gauhati High Court

We have heard Mr. AC Borbora, Senior Advocate assisted by Mr. MG Singh, Advocate for the appellant and Mr. DK Das, learned Standing Counsel, NIA .

The relevant facts briefly stated are that the appellant was arr ested by the National Investigating Agency (for short also referred to as the NI A) in connection with the aforementioned case on 10.01.2012 and is in custody si nce then till date. According to the appellant, he is wholly innocent of the cha rges leveled as he has no nexus whatsoever with the banned outfit, UNLF. He has averred that he had been the Secretary of a co-operative society, registered und er the Manipur Societies Registration Act, 1989, named, Association of Extensive Growers Innovative Service (for short hereafter also referred to as AEGIS) from which he has disassociated himself in the long past. The imputation of the NIA based on oral and documentary evidence purportedly collected during the investig ation is that he along with A. Ibomcha Singh and Y. Brajabidhu being at the helm of the affairs of the AEGIS took various policy decisions pertaining to the adm inistration, functioning, marketing and fund raising of the firm/society and in collusion with senior leaders of the UNLF, as disclosed in the probe and referre d to in the investigation dossier, successfully diverted the money extorted by t his banned organization for funding AEGIS and, thus, created a financial base fo r this proscribed outfit.

According to the appellant, these allegations are not corroborat ed by any evidence, oral or documentary and, thus, records of the investigation vis-a-vis him are all fabricated and collusive. As AEGIS, by no means can be ide ntified with UNLF, it being a separate legal entity, he by virtue of being it’s past Secretary, could not have been implicated in the case. The appellant has as serted that the learned Court below had totally misconstrued the facts and the l aw applicable and had rejected his application for bail erroneously. The appellant has contend further that during his confinement in the Central Jai l, Guwahati, he developed subconjunctival bleeding from both his eyes and was, o n the order of the learned trial Court, admitted in the Guwahati Medical College Hospital at 6.00 p.m. on 24.02.2012. On investigations being made, though belat edly, his platelet count was found much below the normal range and as an immedia te measure he had to take four units of blood transfusion.

The NIA, in its affidavit, while endorsing the impugned order of rejection, has detailed the disclosures in the investigation contending that th e same are adequate enough to establish the appellant’s complicity in the offenc es for which he has been charged. According to the NIA, the AEGIS, though a Frui t Processing Unit, is a front company of UNLF, established, financed and adminis tered by it. That investigation had established that in pursuance of a larger co nspiracy this banned outfit had made substantial investments in AEGIS has been u nderlined. According to the NIA, the appellant was working and aiding to promote the objectives of UNLF till he was arrested on 10.01.2012. The NIA has, thus, m aintained that the materials collected during the investigation demonstrate, for the present, that the accusation against the appellant is true and, thus, in vi ew of the bar under section 43(D) (5) of the Unlawful Activities (Prevention) Ac t, 1967 (for short hereafter referred to as the 1967 Act), his application for b ail had been rightly rejected. According to the NIA, the appellant though, sick, is having all treatments and t he attendant Doctors have not opined that he needs to be shifted or that he is n ot responding to the treatment because he cannot move freely.

Mr. Borbora, has assiduously urged with reference to the relevan t excerpts of the impugned order that as it would apparent therefrom that the pr osecution witnesses, PW 90, N. Netrojit Singh, PW 104, AK Ibochouba Singh, PW 10 6, B Haridas Sarma, PW 108, Monendra Singh did not incriminate the appellant in any of the activities contemplated by the sections of the 1967 Act under which h e has been charge sheeted, the learned trial Court grossly erred in law and on f acts in rejecting his application for bail. The learned Senior Counsel insistent ly argued that no offence against the appellant for his involvement or associati on with any terrorist act contemplated by 1967 Act has even being made out prima facie and, therefore, he ought to have been granted bail, more particularly, as he is languishing in jail since 10.01.2012. Moreover, the investigation in the case being complete, in absence of any seizure of arms or disclosure of any mate rial relating the appellant with any subversive activity amounting to a terroris t act envisaged under section 15 of the 1967 Act, the bar under section 43(D) 95 ) thereof was not attracted and, thus, he ought to be released on bail.

Per contra, Mr. Das has contended that having regard to the trea tment being provided to the appellant at JNIMS and the opinion of the attending Doctors, no case for bail, on the ground of illness of the appellant has been ma de out. Referring to the instances of four of his co-accused in the case, who on being granted bail, had misused the liberty, the learned Standing Counsel, NIA has insisted that considering the seriousness of the charges leveled against the appellant and the materials on record, no interference with the orders impugned ought to be made.

We have extended our cautious consideration to the pleaded facts and the documents available along with the rival arguments advanced. A plain pe rusal of the impugned order would disclose that the pleas now urged in appeal vi s-a-vis the imputations contained in the charge sheet are, in substance, in reit eration of those made and considered by the learned trial Court. It noticed the relevant contents of the charge sheet bearing on the accusations leveled against the appellant and also analyzed the statements of the aforementioned witnesses in course of the investigation in connection therewith. It also took into accoun t, amongst others, the communications through Email disclosing the exchanges per taining to the activities on which the NIA had laid the charge sheet against the appellant on the offences adverted to hereinabove.

On a cumulative consideration of all these materials presently a vailable, the learned trial Court recorded its view that in the face of the mand ate of section 43 (D) (5) of the 1967 Act, the prayer for bail, ought not to be granted as the charges brought against him appear to be prima facie true.

On an independent scrutiny of the materials available before thi s Court, we do not feel persuaded to differ from the approach, analysis and conc lusions conducted/recorded by the learned trial Court vis-a-vis the accusation l eveled against the accused-appellant on which charge sheet has been submitted ag ainst him. The learned trial Court, however, as the order rendered in MC. No. 04/2 would de monstrate, though had noticed the decision of this Court in Redaul Hussain Khan (Supra), outlining the scope for grant of bail on the ground of illness, refused to accede to the appellant’s prayer to this effect principally relying on the s ubmission of his learned counsel that he may collapse, if move or shifted from h is present place of treatment due to his deteriorating health condition. The lea rned trial Court also did take note of the orders passed by it to secure the app ellant’s treatment at JNIMS as deemed necessary.

This Court in the abovereferred decision had, in paragraph 79 th ereof ruled that the limitations on the grant of bail contained in the proviso t o section 43D (5), notwithstanding, it would be permissible to release an accuse d on bail on the ground of illness in terms of the power conferred by the first proviso to section 437(1) Cr.P.C. It was proclaimed that while doing so, however , the Court ought to be assured of the availability of the accused for further i nvestigation or trial and that he/she would not abuse her/his liberty so granted . That the Court ought to be cautious as well in releasing the accused on bail o n the ground of sickness unless it is of the view that it is impossible for him/ her to receive medical treatment while in custody was underlined. It was observe d further that the likelihood of the accused intimidating witnesses after being freed on bail ought to be examined as well.

Noticeably, the NIA had not disputed the illness from which the appellant asserts that he is suffering from. The medical documents accompanying the memorandum of appeal seek to demonstrate that he is presently a prey to mult iple virulent diseases requiring intensive and constant medical attention. The m edical certificates laid with this Court exhibit that he is suffering from intri cate diseases of liver and heart together with HIV infection and thrombocytopeni a, hypoalbumina and has been advised complete bed rest, free from stress and str ain. That he had been subjected to EVL for Esophageal varices grade 3 is also ev ident. Though, the NIA in its affidavit has maintained that the appellant is bei ng provided with the necessary medical treatment and that the Doctors have not a dvised that he needs to be shifted or be lodged in a homely environment no writt en opinion to the effect has been produced before us. On a cumulative considerat ion of the ailments from which he is suffering and the extensive and rigorous tr eatments which he is undergoing on day to day basis, we are inclined to sustain his plea albeit for a limited duration of time to facilitate his stay in a more comfortable, friendly and soothing environment, amongst his family members and r elatives as desired by him. This draught of limited liberty, we construe, accord s with his right to life under the Constitution. On being queried by us, the lea rned Standing Counsel, NIA could not provide us with any material to anticipate and/or opine that in this macabre state of health, if the appellant is allowed t o be on interim bail for a limited period of time he would abuse the liberty and would either intimidate or influence the witnesses or flee from justice.

In the above view of the matter, in the singular facts and circu mstances of the case and on an exclusive consideration of the present health con dition of the appellant, we feel inclined to grant interim bail to him presently for a period of one (1) month from today. This liberty, however, would be subje ct to the following conditions: - i) He would be released on interim bail on the production of two (2) sureties of an amount of Rs. 50,000/- each, to the satisfaction of the learned trial Court. ii) The appellant would make himself available to the NIA as well as the learned trial Court as and when required. iii) The appellant would not move out of Imphal without the prior permission of the l eared trial Court. The learned trial Court in the event of such a request made would not pass any order to that effect without hearing the NIA. iv) The appellant would not make any endeavour either directly or indirectly to contact or intimidate any witness or member of the UNLF during the period of his interim bail. v) The appellant would cause an information to be laid with the jurisdictional p olice station at Imphal and also the Court of learned Chief Judicial Magistrate, Imphal about his whereabouts on daily basis. vi) The appellant would surrender in the Court of the learned Chief Judicial Mag istrate, Imphal on 18.07.2012 without fail. The learned Chief Judicial Magistrat e would, on his surrender, pass appropriate order(s) to restore him in custody.