Malsawmkimi v. National Investigation Agency

By Advocate: Mr. DK Mishra, Sr. Advocate Mr. Z. Alam, Advocate Mr. SP Bhattacharjee, Advocate Mr. S. Jalan, Advocate. Vs. .... & Respo The National Investigation Agency, Through its Standing Counsel. ... & Respondent. By Advocate: Mr. D.K. Das, SC, NIA, Ms. C. Patowary, Advocate BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE MR.JUSTICE A.C. UPADHYAY Dates of hearing : 24.01.12, 27.01.12, 22.02.12, 29.02.12, 01.03.12, 13.03.1 2, 19.03.12, 02.04.12, 18.04.12, 30.04.12, 03.05.12, 04.05.12, 14.05.12, 15.05.1 2, 16.05.12, 17.05.12, 25.05.12 & 07.06.2012 Date of delivery of Judgment & order JUDGMENT & ORDER (Ansari, J.) : 10.09.2012 The appellants herein have preferred two different appeals under Section 21(4) of the National Investigation Agency Act, 2008, (hereinafter referred to as ’the NIA Act’). The appellant, Mrs. Malasawmkimi, has approached this Court, by way of Criminal Appeal No.171/2011, aggrieved by the order, dated 09-09-2011, passed by the learned Special Judge, NIA, Guwahati, Assam, rejecting the appell ant’s prayer for bail in Misc. Case No.25/2011, arising out of NIA Case No.01/20 09, under Sections 120B/121/121A IPC read with Sections 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. On the other hand, the appellant, G eorge Lawmthang, has preferred an appeal, which has given rise to Crl. Appeal No . 65/2012, aggrieved by the order, dated 23-09-11, passed by the learned Special Judge, NIA, Guwahati, Assam, in Misc. (Bail) Case No. 30/2011, arising out of The material facts, giving rise to the present appeals, may, in brief, b in NIA case 01/2009. 2. By this common judgment and order, we propose to dispose of both these a ppeals together inasmuch as both these appeals are closely inter-linked and, on the request, made by the learned counsel for the parties concerned, have been he ard together. 3. We have accordingly heard Mr. D.K. Mishra, learned Senior counsel, for t he accused-appellants, and Mr. D. K. Das, learned Senior counsel, appearing on b ehalf of the National Investigation Agency. BACKGROUND FACTS :: 4. e set out as under: (i) Some significant amendments had been made in the Unlawful Activi ties (Prevention) Act, 1967, (in short, ’the UA(P) Act’) by the Unlawful Activit ies (Prevention) Amendment Act, 2008, the amendments having come into force on 3 1.12.2008, which introduced and defined certain terms, such as, terrorist act, t errorist gang, terrorist organization, unlawful association and unlawful activit y and made, inter alia, punishable a ’terrorist act’ under Section 16 and, by Se ction 17, while the UA(P) Act, as amended by the Unlawful Activities (Prevention ) Amendment Act, 2008, made raising of fund for terrorist act punishable, the UA (P) Act also provided punishment for conspiracy, act of abetment, etc, for commi ssion of terrorist act or any act preparatory to the commission of terrorist act . This apart, the UA(P) Act made ’membership’ of a terrorist gang or terrorist o rganization punishable offences and also provided punishment for those, who hold or held proceeds of terrorism. The UA(P) Act made, under Section 38, even ’asso ciation’ by a person with a terrorist organization a punishable offence, if one associates with a terrorist organization with intention to further its activitie s or if he professes to be associated with a terrorist organization with intenti on to further its activities. (ii) The UA(P) Amendment Act, 2008, has also introduced Section 43D and put r estrictions, by the proviso to Sub-Section (5) of Section 43D, on the Court’s po wer to grant bail by imposing condition that an accused shall not be released on bail or on his own bond if the Court, on perusal of the case diary, or on the r eport, made under Section 173 of the Code of Criminal Procedure (in short, ’the Code’), is of the opinion that there are reasonable grounds for believing that t he accusation against such person is prima facie true. Thus, the UA(P) Act, 1967 , as the same stands today, puts serious fetters on the Court’s discretion to al low an accused to go on bail. (iii) Yet another development from the enactment of NIA Act, 2008, whi ch came into force on 31.12.2008, is that the Central Government stands empowere d to constitute a special agency to be called National Investigation Agency (in short, NIA) for investigation and prosecution of offences under the acts specifi ed in the Schedule of the NIA Act. Section 11 also empowers the Central Governme nt to constitute Special Courts and, it is out of the order, passed by such a Sp ecial Court rejecting bail of the present appellant, that this appeal has been p referred as provided by Section 21(1) of the NIA Act read with Section 21(4) the reof. (iv) Basistha P.S. Case No. 170/2009, under Section 120B/121/121(A) IPC read with Section 25(1B) (A) Arms Act, was, initially, registered against two accused persons, namely, Phojendra Hojai and Babulal Kemprai, on the ground that, on 01 .04.2009, at about 4-00 p.m., when vehicle Nos. AS-01-AH-1422 and AS-01-1-0609 w ere intercepted at 14th Mile G.S. Road, Guwahati, and searched, both the said ac cused, suspected to be cadres and linkmen of a banned organization, namely, DHD (J), were found in the vehicles, wherefrom a sum of rupees one crore, in cash, a nd two pistols were recovered, the money being meant for purchase of arms and am munitions for the said banned organization. The accused were accordingly taken into custody and investigation was started by the Assam Police. On being produc ed before the Chief Judicial Magistrate, Kamrup, Guwahati, the two accused afore mentioned were remanded to police custody. (v) While investigation of Basistha Police Station Case No.170/2009 aforemention ed was pending with the State police, the Central Government, in exercise of its power under Section 6(5) read with Section 8 of the National Investigation Agen cy Act, 2008, directed, on 01.06.2009, investigation of the said case to be con ducted by the NIA. In terms of the directions, so issued by the Central Governm ent, the NIA registered a case under the NIA Act, the Case being NIA Case No. 1/ 2009. (vi) By a Gazette notification, dated 09.07.2009, issued by the Government of India, Ministry of Home Affairs, in exercise of its powers under Section 3 of t he Unlawful Activities (Prevention) Act, 1967, DHD(J), along with its factions, wings and front organizations, came to be declared as ’unlawful organization’. 5. The investigation in Basistha Police Station Case No.170/2009, came to b e subsequently registered as NIA Case No.01/2009 and while investigation of this case had been in progress, Diyungmukh Police Station Case No.03/2009, under Sec tions 120B/121/121A IPC, came to be registered against, amongst others, Golan Da ulagupu, and one Jibangshu Paul, now registered as NIA 2/09. In both the cases, namely, NIA Case No.01/2009 and NIA Case No.02/2009 a 6. forementioned, NIA has already submitted charge-sheets. While hearing on the fra ming of charges, in NIA Case No.01/2009, is already complete and the matter is p ending for orders, the hearing, on the framing of charges, in NIA Case No.02/200 9, has begun. MERIT OF THE APPEAL: 7. In the backdrop of what have been indicated above, let us, now, consider the merit of the present appeals.

#8. While considering the present appeals, it needs to be borne in mind that , in the case at hand, it was required to be determined by the learned Special C ourt, as trial Court, and is, now, required to be determined by this Court, as a n appellate Court, whether there were reasonable grounds for believing that the accusations, made against the present appellant, were prima facie true or not. H owever, determination of the question as to whether there are reasonable grounds for believing or not would obviously invite the Court to assign reasons so as t o make it clear as to why this Court has taken the view that no reasonable groun ds to believe exist or as to why reasonable grounds to believe exist. In either way, therefore, the reasons are necessary to be assigned and this requirement in vites and compels us to discuss, albeit as briefly as possible, the materials on record, which, to our mind, are relevant for the purpose of deciding these appe als and some of these materials even the learned counsel for the appellants has freely referred to. 9. Before, however, dealing with the present appeals, let us understand as to what the case of the prosecution, so far as the appellants are concerned, is. The prosecution’s case, as set forth in the charge-sheet, is reproduced below;

17.29 The investigation at Kolkata revealed two aspects of fund transfer s. First, regarding the channeling of funds for DHD (J) from Guwahati through Ko lkata with the help of accused Jayanta Kumar Ghosh A-12, Debashish Bhattacharjee A-13 and Sandip Ghosh A-14 and Phojemdra Hojai A-1 and second regarding convers ion of Rupees thus received to Dollars with the help of George Lawmthang A-10 an d Malsawmkimi A-9.

17.30 The find sent by Mohet Hojai from Guwahati for the DHD (J) were se nt with the help of one Imdad Ali through Hundi (hawala). The person involved in this parallel banking transaction apart from Imdad Ali was hundi operator Rabi Agarwala. The funds were then received at Kolkata by accused Sandip Ghosh A-14, Debashish Bhattacharjee A-13 and Jayanta Kumar Ghosh A-12 and then handed over t o Phojendra Hojai A-1.

17.31 On three occasions in the years 2009, money was sent by Mohet Hoja i A-3. All the money was received by the accused Jayanta Kumar Ghosh A-12 and hi s men Sandip Ghosh A-14 and Debashish Bhattacharjee A-13 from various places and handed over to Phojendra Hojai A-1 at his place of stay. The records of Madhumi lan Guest House and Hotel Shalimar confirm the stay of Phojendra Hojai on variou s occasions. Accused Sandip Ghosh A-14 and Debashish Bhattachrjee A-13 delivered the hawala money to Phojendra Hojai at Kolkata four times. The first time money was brought in cash from Guwahati by Imdad Ali and Bapi and delivered at Madhum ilan Guest House at Bara Bazaar. This happened after the Council was formed in J anuary, 2008. Then money was delivered twice to the tune of Rs 1 crore through h awala. Money was collected from Marwaris whose addresses were given by Mohet Hoj ai A-3 and Imdad Ali. The system of identification with the help of the number o f a note at the hands of recipient was followed. After these three deliveries at the time of Dipolal Hojai one consignment of more than 1 crore was delivered at Hotel Shalimaar to Phojendra Hojai A-1 in the beginning of the year 2009. Again the same system was followed. Money was again sent in the month of February 200 9 and March 2009 at the time of Mohet Hojai A-3 as CEM. 17.32 Vanlalchhana A-8, the Arms delaer, had made in his disclosure memo that he was also doing business of exchange of dollars through Kolkata for Niranjan Hoj ain A-11. On the basis of the information and on basis of analysis of the CDR of Vanlalchhana A-8, it was found that two persons having a mobile number of Kolka ta were in constant touch with Vanlalchhana A-8. In Mizoram a search was mounted for the lady person who was converting rupees to Dollars. The lady was found to have escaped to Kolkata. The NIA team took the help of Kolkata Police and locat ed and arrested Malsawmkimi A-9 @ Sawmi and George Lawmthang A-10 @ Thanga, the Mizos in Kolkata who converted Rupees to Dollars for the DHD (J) and other organ izations. A sum of Rs 18 lakhs were also recovered from their possession which w as to be converted to dollars by Swami and Thanga. Accordingly, information was given to designated authority i.e IG NIA regarding the seizure as per provisions of section 25 (5) of UA (P) Act through special messenger. They were interrogat ed at Kolkata and they disclosed that they used to collect money from two hotels at Kolkata for conversion to Dollars. An identification memo was prepared by th e IO and the two hotels were identified at Hotel Shalimaar and Madhumilan Guest House, the same places where Phojednra Hojai A-1 used to stay. Vanlalchhana A-8, used to visit Nepal for handing money to Niranjan Hojai. The interrogation of T hanga revealed that he had done three transactions on the instructions of Malsaw mkimi A-8. On all the three occasions they collected the money from the same per son at Kolkata. Once it was Hotel Shalimar and twice it was at Madhumilan Guest House. All these disclosures corroborate the statements of Phojendra Hojai A-1, Jayanta Kumar Ghosh, A-12 and Sandip Ghosh A-12 regarding the exchange of money at Kolkata which was sent by Mohet Hojai A-11 of DHD (J). Later Phojendra Hojai A-1 was identified by Malsawmkimi A-9 and George Lawmthang A-10 as the same pers on whom they collected money on behalf of Vanlalchhana A-8, for conversion to Do llars. ARGUMENTS 10. It has been argued by Mr. Mishra, learned Senior Counsel for the appella nts, that there is no admissible evidence against the appellants and none of the witnesses, examined by the NIA, has implicated the appellants in any manner, wh ich may attract the penal provisions of even under the Indian Penal Code, let al one the UA (P) Act. The learned Senior Counsel, while referring to the documenta ry evidence, on the strength of which NIA proposes to implicate the appellants, argued that D-169, which is the alleged confessional statement of the appellant, George Lawmthang, D-189 and D-196, which show that photographs of Phojendra Hoj ai had been identified by appellants and D-216 and D-218, which contain disclosu re statements of the appellant, Ms. Malsawmkimi, relating to recovery of Rs 10 l akhs and 5 lakhs in Kolkata, cannot be used for the purpose of arriving at a con clusion that appellants are involved in the offences with which they have been c harged. Further argues Mr. Mishra that the documents, relied upon by the NIA, re veal that the appellants are petty workers, doing small business and they agreed to get INC (Indian National Currency) converted to US dollars for very little c ommission and not with any other motive and that the appellants had nothing to d o with the activities of DHD(J) and/or with the act(s) of striking terrors. Controverting the above submissions made by Mr. Mishra, Mr. D.K. Das, le 11. arned Senior counsel for NIA, argues that the appellants were instrumental in co nverting Rupees into Dollars. The rupees, so converted into dollars, were, then, sent to Nepal and were utilized in purchasing of arms by accused Niranjan Hojai , Commander-in-Chief, DHD(J). Mr. Das has also argued that appellant, Ms. Malsaw mkimi, was in constant touch with Phojendra Hojai and she knew about the activit ies of DHD (J) and facilitated, with the help of appellant, George Lawmthang, t he conversion of rupees into dollars for the purpose of purchasing arms. A. 12. The circumstances, briefly stated, which the NIA alleges, against the appell ants, are as follows: • , and the appellant, George Lawmthang • D-153-CDR (call data report) of the mobile of appellant, Ms. Malswamkimi D-169- Confessional Statement of appellant George Lawmthang ROLE PLAYED BY THE APPELLANTS - FACTS D-188 Disclosure statement of appellant, Ms. Malswamkimi D-189-Identification of Phojendra Hojai by the appellant, Ms. Malswamkim D-218-disclosure statement of the appellant, Ms. Malswamkimi, on the bas • • i • is of which Rs 10 lakhs was recovered. 13. Now, let us examine whether the various circumstances, as alleged, point towards the involvement of the appellants in entering into conspiracy with the The relevant extract of confessional statement, made by appellant, Goerg DHD (J). 14. e Lawmthang, read as follows: &.In the month of April (so far as I remember) Malsawmkimi asked me whether I ca n exchange rupees with dollars. I told her that if I can I will inform her &..in the month of August 2008 in informed Malsawmkimi that I have now contact for exc hanging rupees with US dollars. In the same month Malsawmkimi brought Rs 15,00,0 00/- (Rupees fifteen lac) to convert into US dollars. Next day I called Tapan an d started convert the rupees. On first day I gave Rs 5,00,000/- rupees five lac for convert to US dollar. It took 3-4 days for exchange of the rupees. After com pletion of conversion I gave the commission @ 15 paise per US dollars. In the month of October 2008, (as far as I remember) Malsawmkimi came to Kolkata along with one Vantea and gave me Rs 20,00,000 (rupess twenty lac) for conversi on. Malsawmkimi introduced me to Vantea. It took around 4-5 days for the convers ion. In the same way I took commission. In the month of November, December 2008 Malsawmkimi called me to her hotel at Ko lkata Hotel Centepoint. I met Malsawmkimi in the hotel. Malsawmkimi asked me acc ompany her to collect the money of vantea from Madhumilan Hotel. Thereafter I an d Malsawmkimi went to Madhumilan hotel. We went inside a room of Madhumilan Hote l. Malsawmkimi collected Rs 1,00,00,000/- rupees one crore from a person in the hotel. I do not know the name of the person but can recognise him if produced be fore me. After &.1 crore Malsawmkimi came to my house, at Kolkata Malsawmkimi we nt to her hotel keeping the money. I took about 10 days to convert the 1 crore r upees into US dollars. Tapan & & the conversion &.. In the month of January, 2009, Malsawmkimi again gave me Rs 15,00,000 (rupees fi fteen lac) for conversion to US dollars. I in the same way done the conversion a nd took commission. In the month of February and March 2009, Malsawmkimi again asked me to accompany her to Madhumilan hotel for collecting the money from Vantea. There we again we nt to the hotel and collected Rs 2,00,00,000/- (two crores) from the same person who gave Rs 1,00,00,000 earlier. I took around 20 days to convert Rs 2,00,00,00 0/- to US dollars. In the same way I gave the US dollars after conversion to Mal sawmkimi. This time I saw Vantea in the hotel Center point with Malsawmkimi. Again in the month of March 2009 Malsawmkimi called me to her hotel to accompany her to collect the money of Vantea from Shalimar hotel. There Malsawmkimi colle cted Rs 1,00,00,000/- from the same person who gave & & & &.crore ro US dollar. In the same way I gave the US dollar after keeping my commission. In the month of April 2009, May 2009, June 2009, July 2009 Malsawmkimi gave Rs 1 5,00,000/- each for conversion to US dollars accordingly I did the conversion wi th the help of Tapan. In the month of August 2009 (7-8-09) Malsawmkimi gave me Rs 5,00,000/- but she d id not told me to convert the same. She asked me to keep the same and informed m e that she will ask me later on what to do with the money. On 11-8-09 the Lal Bazar police arrested me and seized the above Rs 5,00,000/- f rom me. The confessional statement of appellant, George Lawmthang, shows that th 15. ere were several occasions, when the appellant, Ms. Malsawmkimi, gave money to G eorge Lawmthang for converting Indian rupees into US dollars. 16. The confession of appellant, George Lawmthang, implicating the appellant , Ms. Malsawmkimi, is also an incriminating circumstance against the appellant, Ms. Malsawmkimi. It may be noted here that we are not oblivious of the law that though the confessional statement of appellant, George Lawmthang, who is a co-ac cused, is a relevant fact and may also be used against the appellant, Ms. Malsaw mkimi, the said confessional statement of a co-accused, such as, the appellant, George Lawmthang, can be used for the purpose of strengthening the conclusion, w hich a Court may, otherwise, on the basis of the other evidence on record, reach . If the material, other than confessional statement of a co-accused, can bring a Court to the conclusion that the appellant, Ms. Malsawmkimi, was involved in t he offence(s) alleged against her by the NIA, then, the said confessional statem ent can be used, for the purpose of strengthening the conclusion, which the Cour t may, on the basis of the materials, other than confessional statement of the s aid accused, so reaches. There is, however, no impediment in using the confessio nal statement of the co-accused, namely, George Lawmthang, so far as the appella nt, George Lawmthang, is concerned. What is, however, crucial to note, and we m ust point out, is that while considering an application for bail, neither the co nfession of an accused nor confession of a co-accused can be wholly ignored inas much as such a confession may become the basis for further investigation requiri ng further custody, judicial or otherwise, of an accused. Though confession of a n accused, made to a police officer, may not be stricto senso evidence, such con fession can nevertheless be taken into consideration for the purpose of determin ing whether an accused is entitled to bail or not, for, the confessional stateme nt may lead to, as indicated hereinbefore, further investigation and so can nece ssary to the investigating agency for collecting materials against an accused so that the same can be used at the trial.

#17. The confession, made by the appellant, George Lawmthang, has to be, thus , read along with several other circumstances, prominent among them would be the disclosure statement of Vantea A-8, on the strength of which arms were recovere d, the hawala transactions, by which money was transferred to Kolkata, the mater ials regarding extortion by DHD (J), embezzlement of development funds by the pu blic servants and purchase of arms from international market.

#18. In the context of what have been indicated above, it would be appropriat e to take note of the activities of DHD (J) with which the appellants are allege d to have entered into a conspiracy. ACTIVITIES OF DHD (J) B. 19. As regard the activities of DHD (J), the accusations, in the charge-shee t, adequately, supported by statements of witnesses as contained in the case dia ry, reveal prima facie that the DHD (J) had allegedly done the following acts:- • That DHD (J) is an association of armed miscreants, private contractors, public servants, arms dealer with accused Jewel Garlosa and Niranjan Hojai as t That the DHD (J) had linkage with NSCN (IM) and NDFB, the two scheduled he masterminds of the association. • terrorist organizations. • DHD (J) targeted at major infrastructure projects in their area. Two Gov ernment projects were badly affected by the acts of terror and violence by DHD ( J), the two projects being ’East West Corridor Project’ and ’Broad Gauge Convers ion Project between Lumding and Silchar’. • DHD (J) killed some of those labourers, who were involved in the project of conversion of extension of broad gauge line from Lumding to Badarpur. • DHD (J) indulged in collection of illegal tax by abduction. It also tran spires from the materials that DHD (J) collects huge amount of money by unlawful means and the money, so procured, is utilized for, amongst others, purchase of arms and ammunitions. • DHD(J) indulged in several attacks on the security forces, the notable o nes being the ambush on the Central Reserve Police Force (CRPF) personnel, where in seven men were killed, and the ambush on the Assam police party, wherein six men lost their lives. • Direction given by Niranjan Hojai (A-11) to Shri Dipolal Hojai, CEM, NCH AC, to convene a meeting of all the Executive Members of the Council in the eve ning on 26 November 2008. It was at the meeting that accused Niranjan Hojai dire cted Shri Dipolal Hojai to resign from the position as CEM by the very next day. He nominated Mohit Hojai (A-3) to be elected as the new CEM and also threatened Dipolal Hojai by saying \if you don’t listen, you will have the same fate as Pu mendu Langthasa,\. Suspected DHD(J) militants had killed former Chief Executive Member of the North Cachar Hills Autonomous Council, Purnendu Langthasa, and for mer executive member of the Council, Nindu Langthasa, at Langlai Hasnu village, in the NC Hills district, in June 2007. Forcing Dipolal Hojai to step down from the post of CEM paved the way fo • r Mohit Hojai to become CEM so that the siphoning of development funds can be do ne at the diktats of Niranjan Hojai and Jewel Garlosa. 20. The facts, stated above, give rise to an impression, though prima facie, that there was an association of certain individuals, comprising of armed miscr eants, public servants and private contractors, who were involved in collecting funds by means of extortion, abduction, etc., siphoning of development funds and utilizing all the funds, so collected, in making purchases of arms and ammuniti ons, apart from carrying out other subversive activities. The activities, pointe d out above, raise inference, though prima facie in nature, that the DHD (J), as an association, went to the extent of manipulating the democratic election of A utonomous Council on gun point and dislodged a democratically elected CEM by iss uing threat of murder. This apart, there are materials giving rise to a prima fa cie inference that the said association also, by their activities, affected infr astructural development, essential to the life of the community of the concerned area, and resorted to mass killing of labourers, who had not obeyed their dikta ts, and DHD(J), thus, in a way, running, or attempted to run, a parallel Governm ent inasmuch as activities of DHD(J) were even collecting taxes without having a ny legal right or authority to do so and shaking thereby the very foundation of the constitutional scheme of governance in India. The actions of its activists, such as, Niranjan Hojai, Mohit Hojai, Phojendra Hojai and Jewel Garlosa do amoun t to, unless can be shown otherwise, at the trial, the offence of waging war aga inst the State within the meaning of Section 121 IPC and is punishable by death or imprisonment for life in terms of the penal provisions of Sections 121 of IPC No wonder, therefore, that this Court, in Criminal Appeal No.25/2010, ob Thus, until shown, otherwise, at the trial, the acts of the DHD(J) and i . 21. served, at para 121, as under: (cid:28)121. ts members must be inferred to amount to ’terrorist acts’ within the meaning of Section 15 of the UA(P) Act, particularly, because their acts are calculated, as the materials in the case diary reflect, to threaten the unity, integrity, secu rity and sovereignty of India and they strike terror in the people, in general, and, at times, even in a given section of the people, such as, the labourers, by use of criminal force. Obviously, those, who help and aid the terrorist acts of the DHD(J) and its members, would be abettors of such offence(s). As the DHD(J) runs, or attempts to run, almost a parallel Government, thereby shaking the ver y foundation of the constitutional scheme of governance, in India, its actions a nd the actions of its activists, such as, Niranjan Hojai, Mohit Hojai and Jewel Garlosa do amount to, unless can be shown otherwise, at the trial, the offence o f waging war against the State within the meaning of Section 121 IPC and is puni shable by death or imprisonment for life in terms of the penal provisions of Sec tions 121 of IPC and, those, who help the DHD(J) and/or its activists in carryin g out the activities of the DHD(J), would be, if not members of the DHD(J), be r esponsible as abettors of the offence of waging war against the State and their acts of abetment too would be punishable to the same extent as do the acts of th e chief perpetrators of such offences. This apart, whoever commit a terrorist ac t is punishable by Section 16 of the UA(P) Act, which falls under Chapter IV the reof. A person, who commits a terrorist act, cannot be allowed to go on bail, be cause of the proviso to Section 43D(5). (cid:29) ed) 22. Having found, on prima facie basis, that DHD (J) was involved in terrori st activities, anyone, who is prima facie found to have associated with DHD (J), can be said to have conspired with it provided, of course, that such associatio n is covered within the meaning of Section 18 of the UA (P) Act. 23. The relevant provisions, with respect to conspiracy, under the UA (P), A ct, underwent some amendments in the year 2004 and in the year 2008. The changes brought with respect to offence of conspiracy are as follows; (Emphasis is add C. CT 24. CHANGES IN THE OFFENCE RELATING TO CONSPIRACY ETC. TO COMMIT TERRORIST A Under the Act of 2004, Section 18 read as under: (cid:28)18. Punishment for conspiracy, etc.-Whoever conspires or attempts to commit, o r advocates, abets, advises or incites or knowingly facilitates the commission o f, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than fi ve years but which may extend to imprisonment for life, and shall also be liable to fine. (cid:29)

#25. 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. 26. 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, or advocates, abets, advises or incites, directs or knowingly facilitates the comm ission of, a terrorist act or any act preparatory to the commission of a terrori st act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also b e liable to fine. (cid:29) 27. 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 gives rise to a reasonable ground to believe that an a ccused prima facie had the knowledge that his acts or omissions would facilitate a terrorist act, he would be liable for punishment under Section 18.

#28. In the present appeals, pertaining to bail order(s), it does not appear necessary to enquire whether there exists any direct evidence against the appell ants or as to whether they intended to wage war against the Union of India and p articipated in terrorist activities. The words conspires or attempts to commit, or advocates, abets, advises or incites, directs or knowingly facilitates the co mmission of a terrorist act or any act preparatory to the commission of a terror ist act are sufficient to bring the case of the appellants within the ambit of S ection 18 of the UA(P) Act. The disclosure statement of both the appellants, the confession of appellant, George Lawmthang, the identification of the photograph s, in question, made by the appellants, are all circumstances relevant to the fa ct in issue as envisaged under Sections 10, 27 and 30 of the Evidence Act and it would not be proper to appreciate the questions, as to their admissibility, in these appeals, particularly, when this Court, sitting as a Court of appeal, unde r Section 21(4) of the NIA Act, is merely required to consider, on the basis of the materials on record, if the accused-appellants deserve to be enlarged on bai l. 29. Suffice it would be, in this context, to quote certain observations, mad e by the Supreme Court, with respect to conspiracy, in the case of Union of Indi a vs Jaspal Singh, reported in (2003) 10 SCC 586. The observations are as follow s: (cid:28)9. The submissions on behalf to the parties on either side on either the releva nce, efficacy and reliability of the confessional statements of the 1st Accused or principles underlying Sections 10 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp ’,’15586’,’1’);> and 30 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’15608’,’1’ );> of the Indian Act 1872, next falls for consideration. No doubt, in law the c onfession of a co-accused cannot be treated as substantive evidence to convict, other than the maker of it, on the evidentiary value of it alone. But, it has of ten been reiterated that if on the basis of the consideration of other evidence on record the Court is inclined to accept the other evidence, but not prepared t o act on such evidence alone, the confession of a co-accused can be pressed into service to fortify its belief to act on it also. Once there are sufficient mate rials to reasonably believe that there was concert and connection between person s charged with a common design - it is immaterial as to whether they were strang ers to each other or ignored of the actual role of each of them or that they did not perform any one or more of such acts by joint efforts in unison. Section 30 <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’15608’,’1’);> of the Indian Evide nce Act envisaged that when more than one person are being tried jointly for the same offence and a confession made by one of such persons is found to affect th e maker and some other of such persons and stand sufficiently proved, the Court can take into consideration such confession as against such other person as well as against the person who made such confession. & & &.. & &.. & & &

#10. So far as the charge under Section 120B, IPC, is concerned, it stands proved by showing that two or more persons have agreed to do or cause to do an illegal act or an act which is not illegal by illegal means and that some overt act was done by one of the accused in pursuance of the same. Where their common object or design is itself to do an unlawful act, the specification of such act itself which formed their common design would suffice and it would even be unnecessary or super flows to further substantiate the means adopted by all or any of them t o achieve such object. All the more so, when their common object or design appea r to be to commit series of such serious crimes and proof of any overt act in su ch cases also is a mere surplus age and that mere proof that they or some of the m were concerned in the overt acts alleged would, per se, go a long way to estab lish that there existed such agreement among them. It is well known and as obser ved by this Court in Baburao Bajirao Patil v. MANU/SC/0073/1971 <javascript:fnOp enGlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC/0073/1971’,’1’);> :State o f Maharashtra (1971)3SCC432 , \.....indeed it is seldom - if ever - that direct evidence of conspiracies can be forthcoming. Conspiracy of the present type from its very nature must be conceived and hatched in complete secrecy, for otherwis e the whole purpose would fail.\ This Court further, after adverting to the deci sions reported in Hari Charan Kurmi and Jogia Hajam v. MANU/SC/0059/1964 <javasc ript:fnOpenGlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC/0059/1964’,’1’);> State of Bihar : 1964CriLJ344 and Hanumant v. MANU/SC/0037/1952 <javascript:fnO penGlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC/0037/1952’,’1’);> : State of M.P. 1953CriLJ129 heavily relied upon for the accused therein, observed as t hereunder:- \In a case of conspiracy in which only circumstantial evidence is forthcoming, w hen the broad features are proved by trustworthy evidence connecting all the lin ks of a complete chain, then on isolated events the confessional statements of t he co-accused lending assurance to the conclusions of the court can be considere d as relevant material and the principle laid down in Haricharan Kurmi (supra) w ould not vitiate the proceedings.\ 11. This Court, in Mohamad Usman Mohamad Hussain Maniyar and Anr. v. MANU/SC/018 0/1981 <javascript:fnOpenGlobalPopUp(’/citation/crosscitations.asp’,’MANU/SC/018 0/1981’,’1’);> : State of Maharashtra 1981CriLJ588 , as follows:- \It is true that there is no evidence of any express agreement between the appel lants to do or cause to be done the illegal act. For an offence under Section 12 0B <javascript:fnOpenGlobalPopUp(’/ba/disp.asp’,’15913’,’1’);> the prosecution n eed not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication . In this case, the fact that the appellants were possessing and selling explosi ve substances without a valid licence for a pretty long time leads to the infere nce that they agreed to do and/or cause to be done the said illegal act, for, wi thout such an agreement the act could not have been done for such a long time.\ (Emphasis is added) 30. What follows from the ratio, laid down in the case of Jaspal Singh (supr a), is that in establishing a conspiracy, what is required is a connection betwe en two or more persons to do an illegal act irrespective of the fact whether the y know each other or are complete strangers. 31. The investigation has revealed that so far as the illegal raising of fu nds, by means of illegal tax collection, embezzlement of development funds, exto rtion, etc., are concerned, the funds, so collected, were transported to Kolkata by hawala channels or human couriers. There are materials to raise a prima faci e inference that the funds, sent by Mohet Hojai, from Guwahati for the DHD (J) w ere sent with the help of one Imdad Ali, one of the NIA witnesses, through Hundi (hawala). Another person, involved in this parallel banking transaction, apart from Imdad Ali, was hundi operator, Rabi Agarwala. The funds, as alleged, were r eceived, at Kolkata, by accused Sandip Ghosh A-14, Debashish Bhattacharjee A-13 and Jayanta Kumar Ghosh A-12 and, then, handed over to Phojendra Hojai A-1. The records of Madhumilan Guest House and Hotel Shalimar, prima facie suggest, the s tay of Phojendra Hojai on various occasions. Vanlalchhana @ Vantea A-8, the alle ged Arms dealer, is said to have made a statement in his disclosure memo that he was also doing business of exchange of dollars through Kolkata for Niranjan Hoj ai A-11. 32. Coupled with the above, it is of paramount importance to note that on th e basis of the information and on basis of analysis of the CDR of Vanlalchhana A -8, it was found that two persons, having mobile numbers of Kolkata, were in con stant touch with Vanlalchhana A-8. These two persons were the two appellants bef ore us, who, as alleged, converted Rupees to Dollars for the DHD (J). The circumstances, available against the appellants, prima facie, establ 33. ish that the act of conversion of rupees into dollars by the appellants were not a one time affair; rather, it was done on several occasions. The conversion of rupees into dollars, through illegal channels, assumes immense importance in the present case, because had there been no conversion, it would have been a stumbl ing block for the DHD (J) to purchase arms from international market and would, consequently, have crippled their terrorist activities. 34. The subtle feature of Section 18 of the UA(P) Act, as discussed hereinbe fore, is that it not only penalizes conspiracy to commit terrorist acts, but als o those acts, which facilitate the commission of a terrorist act or even an act, which is preparatory to the commission of terrorist act. The circumstances, ava ilable against the appellants, point out clearly that they, by facilitating the conversion of rupees into dollars, committed acts, which furthered the activitie s of DHD (J), an association, which as observed hereinbefore, was engaged in ter rorist acts. These materials, which appear to be prima facie true, cannot be ove rlooked, while deciding these appeals, whereby the two appellants seek setting a side of the order(s) of the learned Special Court refusing to grant bail to the appellants, because there exists a definite pattern in which money was collected by illegal means like extortion, defalcation of developments funds, etc, and se nt to Kolkata by hawala operators, where the appellants assisted in conversion o f the money collected, in INC, to US dollars. Since the international arms marke t do not easily deal with INC, it was necessary to get the INC converted into US dollars and it is here that the role of appellants became instrumental. The app ellants assisted the conversion of INC into dollars and the dollars were sent to Niranjan Hojai, Commander-in-Chief, DHD(J), at Nepal, who, according to the NIA , made further arrangements for purchasing arms. 35. Intention and knowledge being questions of fact, it would be wrong to sa y, in the face of aforesaid materials collected by NIA, that the appellants were only interested in profits and had nothing to do with the activities of DHD (J) inasmuch as the materials, prima facie, justify the conclusion, albeit tentativ ely, that the appellants committed acts with the knowledge that the money, being converted into US dollars, is ill-gotten and, therefore, their acts, can be, on a prima facie basis, and unless shown otherwise, termed as acts preparatory to the commission of a terrorist act sufficient to attract the penal provisions of Section 18 of the UA (P) Act, falling under Chapter IV of the said Act. Since th e learned trial Court is yet to pass its necessary order(s) on the point of char ges against the appellants, there appears no necessity to dwell any further on t he applicability or otherwise of the other charges levelled against the appellan ts. 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:

#36. 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.

#37. 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-appellants. W hile considering this aspect, it needs to be noted that the appellants herein ar e accused of having committed offences under Sections 120(B)/121/121(A) IPC read with Sections 16, 17, 18 and 19 of the UA(P) Act. Considering the fact that it is the proviso to Section 43D(5) of the UA( 38. 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)

#39. 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. 40. Thus, if the Special Court, on perusal of the case diary, forms an opini 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. 41. The above position of law is further made clear by Sub-Section (6) of S 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’.

#42. 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. 43. In the backdrop of Clauses (i) and (ii) of Section 437(1) of the Code, w 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) 44. 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) The meaning of the word, ’prima facie’, given in Marlin Burn Ltd. (supra 68. ), 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). 69. From the meaning, attributed to the word, ’prima facie’, by various dict 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. In the face of the above observations made by the Supreme Court, it may 70. 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 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). The word, ’true’ has been defined, in World Book Dictionary, as (cid:28)Agreein

#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. The term ’true’ would mean a proposition that the accusation brought aga 74. 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.

#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) In short, thus, on a bare reading of the materials, as may have been col 76. 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. 78. The expression, ’reasonable ground’, means something more than prima fac 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). Coupled with the above, the proviso to Section 43-D(5) does not require 79. 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. There are no corresponding provisions, in the NIA Act, as were present i 81. 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)

#45. Thus, we find that in the facts of the present case, the learned Special Court, having found that the allegations against the appellants were prima faci e true, could not have granted bail to the appellants, because of the specific p rohibition in matters of granting bail provided under the proviso to Section 43 D (5) of the UA (P) Act. 46. 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:

#47. In the light of the law, laid down in Redaul Hussain Khan & ors. Vs. Sta 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.

#48. 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), seek