Sri Golan Daulagupu v. The National Investigation Agency

The appellant, who was a former Executive Member of North-Cachar Hills Autonomou s Council (in short, ’NCHAC’), has preferred this appeal under Section 21(4) of the National Investigation Agency Act, 2008, (hereinafter referred to as ’the N IA Act’) aggrieved by the order, dated 11.05.1991, passed by the learned Special Judge, NIA, Guwahati, Assam, rejecting the appellant’s prayer for bail in Misc. Case No.204/2011, which was made by the accused-appellant, Golan Daulagupu, und er Section 437 Cr.PC, in connection with NIA Case No.02/2009, under Sections 120 B/121/121A IPC read with Sections 16, 17, 18 and 20 of the Unlawful Activities ( Prevention) Act, 1967, and Section 25(1)(d) of the Arms Act, 1951, which arose out of Diyungmukh Police Station Case No.03/2009 under Sections 120B/121/121A IP C.

2. We have heard Mr. N. Dutta, learned Senior counsel, for the accused-appe llant, and Mr. D. K. Das, learned Senior counsel, appearing on behalf of the Nat ional Investigation Agency. BACKGROUND FACTS :: 3. The material facts, giving rise to the present appeal, may, in brief, be 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’.

4. While investigation in Basistha Police Station Case No.170/2009, which c ame to be subsequently registered as NIA Case No.01/2009, had been in progress, Diyungmukh Police Station Case No.03/2009, under Sections 120B/121/121A IPC, cam e to be registered against, amongst others, the present appellant, Golan Daulagu pu, and one Jibangshu Paul, the case against them being, in brief, thus: (a) Sub-Inspector of Police, Ratneswar Das, on receiving information, on 11. 02.2009, that some persons/workers of North Cachar Hills Autonomous Council (in short, ’the NCHAC) were going to deliver huge sums of money to DHD(J), a terrori st gang, somewhere, between Haflong and Diyungmukh for the purpose of procuring arms and ammunitions and for promoting organizational activities with a view to wage war against the State, informed his superior officer and, under the guidanc e of the then Deputy Superintendent of Police, Haflong, police started checking of vehicles coming from the direction of Haflong and proceeding towards Diyungmu kh. During checking of the vehicles, on 11.02.2009, at about 3.30 pm, one Mahind ra Scorpio, bearing registration No.AS-08-2010, was intercepted by the police at Thaijowari, wherein the present appellant and the said Jibangshu Paul were trav elling, the other occupants of the vehicle being the appellant’s two PSOs, Dipak Baruah and Mangal Singh Tokbi, and the appellant’s driver, Ram Prasad Sharma, J ibangshu Paul being a contractor and the present appellant being a member of NCH AC. (b) A search, when conducted by police, led to the recovery of Rs.32,11,000/ -, in cash, from a bag, which Jibangshu Paul was carrying in the said vehicle. P olice arrested the present appellant and the said Jibangshu Paul and, on the bas is of the First Information Report, lodged, in this regard, at Diyungmukh Police Station, by Sub-Inspector of Police, Ratneswar Das, Diyungmukh Police Station C ase No.03/2009, under Sections 120B/121/121A IPC, aforementioned was registered. This case too was, later on, taken over for investigation by the NIA and, that is how, NIA Case No.02/2009, under Sections 120B/121/121A IPC, read with Section s 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967, and Secti on 25(1)(d) of the Arms Act, 1951, was borne. 5. In both the cases, namely, NIA Case No.01/2009 and NIA Case No.02/2009 a forementioned, NIA has already submitted charge-sheets, the charge-sheet, in NIA Case No.02/2009, having been named the present appellant and the said Jibangshu Paul as accused. While hearing on the framing of charges in NIA Case No.01/2009 is already complete and the matter is pending for orders, the hearing, on the f raming of charges in NIA Case No.02/2009, has begun. MERIT OF THE APPEAL: 6. merit of the present appeal. In the backdrop of the above position of law, let us, now, consider the

7. While considering the present appeal, it needs to be borne in mind that, in the case at hand, it was required to be determined by the learned Special Co urt, as trial Court, and is, now, required to be determined by this Court, as an appellate Court, whether there were reasonable grounds for believing that the a ccusations, made against the present appellant, was prima facie true or not. How ever, determination of the question as to whether there are reasonable grounds f or believing or not would obviously invite the Court to assign reasons so as to make it clear as to why this Court has taken the view that no reasonable grounds to believe exist or as to why reasonable grounds to believe exist. In either wa y, therefore, the reasons are necessary to be assigned and this requirement invi tes and compels us to discuss, albeit as briefly as possible, the materials on r ecord, which, to our mind, are relevant for the purpose of deciding this appeal and some of these materials even the learned counsel for the appellant has freel y referred to.

8. o what the case of the prosecution, in general, is. Before, however, dealing with the present appeal, let us understand as t Broadly speaking, the prosecution’s case, in brief, is thus: 9. (i) DHD(J) is an unlawful association within the meaning of Section 2(p) of the UA(P) Act, 1967, inasmuch as DHD(J) had been indulging in unlawful activitie s as defined in Section 2(o) of the UA(P) Act, 1967, and had been, therefore, de clared, on 09.07.2009, as an unlawful association after accused Phojendra Hojai and Babul Kemprai were arrested on 1st of April, 2009, with an amount of Rs.1 (o ne) crore, in cash, and some weapons, which gave rise to NIA Case No.01/2009. Ac cused Niranjan Hojai was the Commander-in-Chief of DHD(J), who had operated from outside India; whereas accused Jewel Garlosa was the Chairman of DHD(J), who, e arlier, operated from Nepal, but established, later on, a hideout, at Bangalore, in conspiracy with accused-appellant, Ashringdaw Warisa @ Partho Warisa, who ha d, in turn, taken help of, and support from, Samir Ahmed. The ASDC, which is a political organization, came, with the support of D (ii) HD(J), to power in NCHAC in alliance with another national party. On coming to p ower, Dipolal Hojai was elected as the Chief Executive Member (in short, ’CEM’) of the NCHAC. When, however, Niranjan Hojai found that Dipolal Hojai was not pro ving to be as useful as was needed, a tele-conference was, in the presence of Di polal Hojai, held between Niranjan Hojai and those executive members of the NCHA C, who belong to ASDC including the present appellant, Golan Daulagupu, and thei r said alliance partners. In this tele-conference, Niranjan Hojai asked Dipolal Hojai to resign from the office of the CEM and elect Mohit Hojai as the CEM of N CHAC. Dipolal Hojai accordingly resigned on the pretext of ill-health and accuse d Mohit Hojai became the CEM.

10. It may also be pointed out that it does not appear to be the case of the prosecution that the appellant is being prosecuted for the various offences und er the UA (P) Act, as amended till date, for the mere recovery of huge sum of mo ney from his possession. The charges against the appellant, amongst others, pert ain to raising of fund for the DHD(J) and/or funding the DHD (J), entering into a conspiracy, etc., to commit terrorist acts, and being a member of a terrorist gang. Necessarily, therefore, the applicability of the aforesaid charges cannot be understood from the view point of mere recovery of huge sum of money from the possession of the appellant; for, the recovery of the money is only a circumsta nce in the long chain of other circumstances and it is only an overall assessmen t of entire circumstances, which will offer justification for the charges agains t the accused-appellant. 11. The materials gathered, during investigation, reveal that the money, whi ch was recovered from the possession of appellant and another was meant for DHD (J), a terrorist gang. It, thus, becomes necessary to have a brief idea as rega rd the activities of DHD (J) as alleged to have been committed by the DHD(J). Activities of DHD (J)

12. As regards the activities of DHD (J), what needs to be, now, very carefu lly noted is that the relevant portion of the statement of Dipolal Hojai, record ed by the NIA, reads as follows: (cid:28)The call of Niranajan came on Kulendra’s phone and the mobile speaker was put o n full volume and kept at the centre of the table. Niranjan said (cid:28)I am the C-in- C of DHD(J). By tomorrow 10 am, Dipolal Hojai has to resign and Mohit Hojai has to be made the CEM. If you don’t listen, you will have the same fate as Purnendu Langthasa. (cid:29) One Debojit Thaosen, who was slightly drunk, tried to argue. He ask ed him as to why this was being ordered. Niranjan replied that Dipolal did not d o much for the Dimasas regarding nomenclature of NC Hills, making a Dimasa SP, D C and Dimasa HODs of all departments. Debojit, then, said that even Mohit Hojai cannot get these things done. Niranjan, then, told him to shut up. I asked other s for support after the call and tried to resist the pressure. But all others di d not support due to fear. I had to resign. (cid:29) (Emphasis is a dded) The question, which, now, pertinently, arises is: Whether the ’threat’, 13. which had been given to Dipolal Hojai by Niranjan Hojai, falls within the ambit of the definition of ’terrorist act’ as defined by Section 15 of the UA(P) Act. For the sake of brevity, the relevant provisions of Section 15 are reproduced be low: (cid:28)15. Terrorist act. - Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people of any section of the people in India or any foreign country, - (a) (b) (c) *** *** detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of In dia, any State Government or the Government of a foreign country or any other pe rson to do or abstain from doing any act, commits a terrorist act. (cid:29) *** *** (Emphasis is added)

14. The expressions, ’any other act’ or ’any other person’, which clause (c) uses, makes it clear that if one detains, kidnaps or abducts any person and thr eatens to kill or injure such a person or does ’any other act’ in order to compe l the Government of India, any State Government or the Government of a foreign c ountry or ’any other person’ to do or abstain from doing any act, and thereby th reatens the sovereignty of India or strike terror in the people or any section o f the people in India, commits a terrorist act. Because of the fact that Dipolal Hojai was the elected Chief Executive M 15. ember (CEM), but he was threatened by Niranjan Hojai by saying that he would mee t the fate of his predecessor-in-office, who had been killed, and compelled ther eby the elected CEM to resign, the action of Niranjan Hojai falls within the def inition of terrorist act inasmuch as NCHAC enjoys constitutional protection unde r Schedule VI of our Constitution and forcing a person, such as, Dipolal Hojai, who was the elected CEM to resign from the post with a threat to kill him in the same way in which was killed his predecessors-in-office, clearly demonstrates t hat DHD(J) was, at the relevant point of time, headed by its Chairman, Jewel Gar losa, and its Commander-in-Chief, Niranjan Hojai, had not merely threatened Dipo lal Hojai, an elected CEM, by instilling terror and fear in him and other electe d members of the NCHAC, but forced Dipolal Hojai to resign as described hereinbe fore.

16. Thus, by their action, as alleged and if true, DHD(J) had, in effect, th reatened the very sovereignty of India, when the NCHAC was not allowed to functi on in accordance with the Constitutional scheme of governance. In such a case, a question mark is put on the very survival of the Constitution, though it is the Constitution, which is not only the source of power, but also the source of dut y and responsibility of every citizen. 17. It would also be proper, in the context of present appeal, to reproduce here the relevant extracts from the Criminal Appeal No. 25/2010, regarding the a ctivities of DHD (J), reported in 2010(3) GLT 302 (National Investigation Agency versus Redaul Hussain Khan), which read as under: (cid:28)121. Thus, until shown, otherwise, at the trial, the acts of the DHD(J) and it s members must be inferred to amount to ’terrorist acts’ within the meaning of S ection 15 of the U.A. (P) Act, particularly, because their acts are calculated, as the materials in the case diary reflect, to threaten the unity, integrity, se curity and sovereignty of lndia 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 v ery foundation of the constitutional scheme of governance, in India, its actions and the actions of its activists, such as, Niranjan Hojai, Mohit Hojai and Jewe l Garlosa do amount to, unless can be shown otherwise, at the trial, the offence of waging war against the State within the meaning of Section 121 IPC and is pu nishable by death or imprisonment for life in terms of the penal provisions of S ections 121 of IPC.

18. Since no change in circumstances, urging the Court to adopt a different view, has been pointed out, on behalf of the appellant, and in view also of the prima facie conclusion already reached by this Court, in Criminal Appeal No. 25/ 2010, as to the activities of DHD (J), there appears no necessity to enter into any further discussion in order to determine on a prima facie basis, if the DHD (J) was involved in terrorist activities. Role played by the appellant-facts The present appellant, Golan Daulagupu, was, according to the NIA, a par 19. t of the group of people, who had entered into the said criminal conspiracy and, as a part of this conspiracy, the present appellant had worked according to wha t Niranjan Hojai wanted. No wonder, therefore, that the further case of the NIA is as mentioned hereinbelow.

20. In the present case, Sub-Inspector of Police, Ratneswar Das, who, accord ing to the NIA, had received information of money, belonging to DHD(J), an extre mist organization, being carried, has stated, in his statement recorded by the N IA, that on receiving the information that persons, belonging to NCHAC, were goi ng to deliver huge amount of money to the DHD(J) for buying arms and ammunitions for promoting their organizational activities, started checking of vehicles and , on 11.02.2009, at about 3.30 pm, a Scorpio vehicle, bearing registration No.AS -05-5133, coming from Haflong was searched and huge amount of money was found in possession of Jibangshu Paul, a contractor, and that the present appellant and his PSOs were also in his vehicle.

21. Corroborating the evidence of Sub-Inspector of Police Ratneswar Das, the statements of Nur Mohammad Khan, Mahesh Singh Yadav and Bishnu Mishra, who all are police personnel, show that during checking of vehicles, on 11.02.2009, when the said Scorpio vehicle, occupied by the present appellant and Jibangshu Paul was, as indicated hereinbefore, checked, a sum of Rs.32,11,000/- was recovered, in cash, from the possession of Jibangshu Paul and the money was seized.

22. Coming to the statement of Biraj Chakraborty, we notice that according t o him, he works in the office of the Additional Chief Engineer, PHE Department, and in the morning of 09.02.2009, Mohit Hojai, CEM, called him to his office and told him that he (Mohit Hojai) had already talked to Saikia, Executive Engineer , and, then, directed him (Biraj) to contact Saikia and to ask him (Saikia) to s end the balance on that very day, i.e., on 09.02.2009. Mohit Hojai, according to Biraj Chakraborty, also told him that Joybesh would reach the office of the Bir aj Chakraborty at 4 pm to take the money and, on being contacted, Saikia asked B iraj Chakraborty to collect the money from Jibangshu Paul @ Raju at 4 pm, Jibang shu Paul being the co-accused in the case, who had been provided with the money, as mentioned above, when he was travelling with the present appellant.

23. The statement of Biraj Chakraborty also shows that at about 4.30 pm, on 09.02.2009, the said Joybesh, a man of Mohit Hojai, came to the office of Biraj Chakraborty to collect the money, whereupon Biraj Chakraborty took Joybesh to th e house of Jibangshu Paul, who was already having the knowledge as regards deliv ery of money to Mohit Hojai, and, accordingly, Jibangshu Paul gave them a bag co ntaining an amount of Rs.70 lakhs and that after the delivery of the money to Mo hit Hojai, Biraj Chakraborty came back to his house. Thereafter, according to Bi raj Chakraborty, on 10.02.2009, Karuna Saikia, telephoned Biraj Chakraborty and ordered him to inform Jibangshu Paul ’to deliver the remaining cash on 11.02.200 9 positively to the person as per the direction already given by Mohit Hojai to Jibanghsu Paul’. (Emphasi s added)

24. When we turn to the statement given by Ram Prasad Sharma, who was drivin g the vehicle, in question, we notice that according to him, on 11.02.2009, the present appellant asked him to get ready for proceeding to Guwahati, whereupon h e (Ram Prasad Sharma), along with Dipak Baruah and Mangal Singh Tokbi, both gunm en of the present appellant, reached the house of the appellant at 11.30 am and the appellant, after attending the session of the Council, proceeded to Guwahati and, at about 1.30 pm, accused Jibanghsu Paul also boarded the said vehicle at Railway Field Road, Haflong, and, at that point of time, Jibanghsu Paul was carr ying a heavy bag with him and, on the way to Guwahati, police and BSF personnel stopped their vehicle and checked all the bags and found Rs,32,11,000/- in the b ag of Jibanghsu Paul. 25. Broadly in tune with the statement of Ram Prasad Sharma is the statement of Dipak Baruah, one of the PSOs of the appellant. It is, now, the appellant’s case, as presented before us, that the appel 26. lant, Golan Daulagupu, merely gave lift to Jibanghsu Paul as Jibanghsu Paul was waiting for a vehicle to go to Guwahati and, hence, in such circumstances, his b ail application ought not to have been rejected by the learned Court below. 27. While considering the above submission, made on behalf of the appellant, it needs to be noted that neither the driver nor the PSOs of the present appell ant supports the appellant’s contention that he merely gave lift to Jibangshu Pa ul inasmuch as their statements do not show, even faintly, that Jibangshu Paul w as waiting, with a heavy bag, and boarded the vehicle at Railway Field Road, Haf long, merely because the present appellant, Golan Daulagupu, happened to pass by in his vehicle. This shows prima facie that there was already an understanding or arrangement between the appellant, Golan Daulagupu, on the one hand, and Jiba ngshu Paul, on the other, that Jibangshu Paul would board the vehicle at Railway Field Road, Haflong, with money to be carried to Guwahati and, it is for this r eason, that neither the driver nor the PSOs of the appellant have said anything indicating that Jibangshu Paul was merely given a lift by the present appellant.

28. Coupled with the above, a Court shall consider that every person, unless shown otherwise, has common sense. The statement, given by Biraj Chakraborty, m ore than amply shows that accused Jibangshu Paul had been carrying money on the orders of Mohit Hojai inasmuch as he had the instruction to carry the remaining cash, on 11.02.2009, ’positively’ to the person as had already been directed by Mohit Hojai. A person, with common sense, could not have carried a huge sum of m oney, such as, Rs.32 lakhs, in cash, in a bag, without a vehicle and await arriv al of a vehicle standing by the side of the road so as to take a lift if someone was kind enough to give him a lift.

29. Hence, rationality will demand the Court to assume, at this stage, that Jibanghsu Paul was awaiting arrival of the appellant, in his vehicle, so as to c arry Jibangshu Paul to Guwahati with the cash, in question. Prosecution is not e ntirety incorrect, when it says that the appellant’s vehicle was used, because h e had two PSOs with him, which would have, ordinarily, allowed the vehicle to pa ss without being checked; but, for the fact that Sub-Inspector of Police, Ratnes war Das, had been in receipt of information about money being carried and all ve hicles, moving, on the road, to Diyungmukh, were being checked and, hence, the v ehicle, wherein the present appellant, along with Jibanghsu Paul, was moving, go t checked and the cash, in question, was found. This cannot be considered as a m ere co-incidence, particularly, when the NIA has also produced the record of the calls, which had been made, on 11.02.2009, between Jibanghsu Paul and Golan Dau lagupu, which shows that Jibanghsu Paul and the present appellant had been conti nuously in touch with each other. The appellant had even talked to Jibanghsu Pau l, on 11.02.2009, at 9.18 hours, 10.48 hours, 12.23 hours and, eventually, at 13 .02 hours, i.e. less than ‰ an hour before the Jibanghsu Paul had boarded the pr esent appellant’s vehicle.

30. When the present appellant was a party to the conference, which was hel d at the residence of Dipolal Hojai, wherein Niranjan Hojai, sitting abroad, thr eatened Dipolal Hojai to resign or else, face the consequence of his predecessor s-in-office, who had been killed in the past, and when there is nothing on recor d to show that the appellant had disassociated himself from Mohit Hojai, there w as more than reasonable ground for the learned Special Court to infer that a pri ma facie case had been made out against the appellant that he, pursuant to the s aid criminal conspiracy, had given lift to his co-accused, Jibanghsu Paul, who w as to carry the money, in cash, to Guwahati to be handed over to the person as h ad been directed by Mohit Hojai so that arms and ammunitions could be purchased. The statement of the present appellant recorded under Section 164 Cr.PC., which the prosecution calls a confessional statement, is not really a confessional st atement inasmuch as the accused-appellant merely claimed that he had given lift to accused Jibangshu Paul and completely disassociated himself from the cash, wh ich was being carried, by contending to the effect that his act of giving lift w as wholly innocent. Limitation in granting bail for offences falling under Chapter IV and VI of UA ( P) Act- Law laid down:

31. 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, thou gh even a Court of Session may be notified as a Special Court by the Central Gov ernment in exercise of its powers under Section 11. This apart, this Court has h eld, in Jayanta Kumar Ghosh (supra), that besides the limitations, which Section 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 lim itation, 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.

32. 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 n 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.

33. 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). 34. 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 35. 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.

36. 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’.

37. 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.

38. 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 43d (5) 39. Dealing with the concept of the proviso to Section 43D(5), the Division Bench, in Jayanta Kumar Ghosh (supra), observed and held as to what the expressi on prima facie and the expression true, which appear in the proviso to Section 4 3D(5), convey. The relevant observations, made this regard, read as under: Before proceeding further, it is also, to our mind, necessary to ascerta (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. Let us, therefore, ascertain as to what the word ’prima facie’ means. Th 64. 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) Warton’s Law Lexicon defines that a prima facie case does not mean a cas 66. 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).

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.

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 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). The word, ’true’ has been defined, in World Book Dictionary, as (cid:28)Agreein

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) 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).

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)

40. Thus, we find that in the facts of the present case, the learned Special Court, having found that the allegations against the appellant was prima facie true, could not have granted bail to the appellant in view of the applicability of the specific prohibition in granting bail provided under the proviso to 43 D (5) of the UA (P) Act. 41. 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:

41. 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.

42. 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.

43. 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

44. 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 against the order refusing bail. Similarly, even the State could have preferre d an appeal if the Special Court or the Court of Session, as the case may be, ha ppened to grant bail to such an accused person in exercise of powers under Secti on 437 of the Code.

99. Though it was contended, in Salimbhai Abdulgaffar Shaikh (supra), that T ADA had not taken away the High Court’s power under Section 439, the Supreme Cou rt, referring to Usmanbhai Dawoodbhai Memon (supra), held that there was complet e exclusion of the jurisdiction of the High Court, under the TADA, to entertain a bail application made under Section 439 and that this view was reiterated in S tate of Punjab Vs. Kewal Singh, reported in 1990 Supp SCC 147. The Apex Court co ncluded, at para 14, in Salimbhai Abdulgaffar Shaikh (supra), thus: (cid:28)14. That apart, if the argument of the learned counsel for the respondents is a ccepted, it would mean that a person whose bail under POTA has been rejected by the Special Court will have two remedies and he can avail any one of them at his sweet will. He may move a bail application before the High Court under Section 439 CrPC in the original or concurrent jurisdiction, which may be heard by a Sin gle Judge or may prefer an appeal under sub-section (4) of Section 34 of POTA wh ich would be heard by a Bench of two Judges. To interpret a statutory provision in such a manner that a court can exercise both appellate and original jurisdict ion in respect of the same matter will lead to an incongruous situation. The con tention is therefore fallacious. (cid:29)

45. We, therefore, in the light of the discussions held by this Court, in Re daul Hussain Khan & ors. Vs. State of Assam and ors, reported in 2009 (3) GLT 85 5, agree with the views expressed therein that once the investigation, under the scheme of the NIA Act, is taken over by the NIA, it is the Special Court, which can authorize further detention of an arrested accused. When such an arrested a ccused applies for bail to the Special Court, the source of power to consider su ch an application for bail lies in Section 437 and not Section 439 of the Code. Even a High Court cannot invoke its powers, under Section 439, to grant bail if it has been refused by the Special Court nor can the High Court, by resorting to its power under Section 439, cancel bail if bail has been granted to such an ac cused by the Special Court. If the bail has been refused or granted by the Speci al Court, the aggrieved party may, however, prefer an appeal, in terms of Sectio n 21(4), to the High Court. Such an appeal has to be heard by a Division Bench o f the High Court and in such an appeal, the merit of the order, granting or refu sing bail, can be questioned. (Emphasi s added)

46. In the case of Redaul Hussain Khan (supra), this Court has, on analyzing the scheme of the NIA Act, concluded, at Para 42, 43 and 44, as follows: On a close reading of Section 16 of the NIA Act, what becomes clear is t (cid:28)42. hat notwithstanding the fact that, according to Section 16(3) of the NIA Act, a Special Court, for the purpose of trial of a scheduled offence, has all the powe rs of a Court of Session and shall try such offence ’as if it were a Court of Se ssion’, the Special Court does not become a Court of Session inasmuch as it is o nly the power of trial of a Court of Session that the Special Court, by virtue o f Section 16(3), entitled to exercise. In other words, the expression, ’as if it were a Court of Session’, which occur in Section 16(3), really reflects that it is only the procedure for trial of a Sessions case, which a Special Court can f ollow; but it is, otherwise, not a Court of Session.

43. I may pause here to point out that Section 16(3) of the NIA Act states, (cid:28)Subject to the other provisions of this Act, a Special Court shall, for the pur pose of trial of any offence, have all the powers of a Court of Session and shal l try such offence as if it were a Court of Session so far as may be in accordan ce with the procedure prescribed in the Code for the trial before a Court of Ses sion. (cid:29) Similar provisions existed in Section 14(3) of TADA. Both the provisions were, thus, pari materia. The Supreme Court had the occasion to interpret Sectio n 14(3) in Usmanbhai Dawoodbhai Memon (supra). Referring to the expression ’as i f it were’, appearing in Section 3 of the TADA, the Supreme Court pointed out, i n Usmanbhai Dawoodbhai Memon (supra), that though the Parliament has vested, by using the words ’as if it were’, in the Designated Court, the status of a Court of Session, yet this legal fiction, contained in Section 14(3), must be restrict ed to the procedure to be followed for trial of an offence under the TADA, i.e., trial must be in accordance with the procedure prescribed, by the Code, in resp ect of a trial before a Court of Session in so far as it is applicable. The rele vant observations, made in this regard, which appear at para 18, read as under: (cid:28)18. No doubt, the legislature by the use of the words (cid:28)as if it were (cid:29) in Sectio n 14(3) of the Act vested a Designated Court with the status of a Court of Sessi on. But, as contended for by Learned Counsel for the State Government, the legal fiction contained therein must be restricted to the procedure to be followed fo r the trial of an offence under the Act i.e. such trial must be in accordance wi th the procedure prescribed under the Code of the trial before a Court of Sessio n, insofar as applicable. (cid:29)

44. The above impression gets strengthened from the fact that Section 16(1) provides that a Special Court may take cognizance of offence, without the accuse d being committed to it for trial, which, in turn, implies that a Special Court takes cognizance of an offence as a Court of original jurisdiction and does not have the trappings of a Court of Session, which cannot, ordinarily, take, in the light of Section 193 of the Code, cognizance of an offence, unless the case, in terms of Section 209 of the Code, is committed to it, for, Section 193 states t hat a Court of Session cannot take cognizance of an offence as a Court of origin al jurisdiction except when the Code or the special law provides otherwise. Thus , a Court of Session could not have taken cognizance of an offence, under the NI A Act, without the case having been committed to it; but, as the NIA Act provide s for taking cognizance of an offence by a Court of Session, without the case be ing committed to it, the Court of Session can take cognizance of offence, under the NIA Act, as the Court of original jurisdiction. Such a deviation is possib le even in respect of a specified offence under the Indian Penal Code. For inst ance, sub-Section (2) of Section 199 of the Code provides that when an offence, falling under Chapter XXI of the IPC, is alleged to have committed against a per son, who, at the time of such commission, is the President of India, Vice-Presid ent of India, Governor of a State, the Administrator of a Union territory or a m inister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in re spect of his conduct in the discharge of his functions, a Court of Session may t ake cognizance of such an offence, without the case being committed to it, upon a complaint, in writing, made by the Public Prosecutor. (cid:29)

47. , 66 and 74, as under: (cid:28)65. This Court, in Redaul Hussain Khan (supra), also pointed out, at para 65 It is also well to remember that merely because of the fact that a Court of Session can function as a Special Court if Special Court is not constituted under a special law, it does not follow that the Court of Session, which exercis es the powers of the Special Court, would become a Court of Session. In the give n scheme of a ’special law’, a Court of Session, as already pointed out in AR An tulay (supra), may become a Court of original jurisdiction with no trappings of the Court of Session. In such circumstances, merely because of the fact that a S essions Judge exercises the jurisdiction of a Special Court, the Special Court w ould not be treated, or would not be deemed, to have become, a Court of Session. When the Special Court, in the case at hand, falls within the expression, ’a Co urt other than the High Court or the Court of Session’, which appears in Section 437(1), it logically follows that a Special Court would run all the limitations , which are imposed by Section 437 on the powers of a Court, covered by Section 437, in respect of granting of bail. Logically extended, this will mean that, am ongst other limitations, as specified by sub-Section (1) of Section 437, a Speci al Court would not be able to release a person on bail if there appears a reason able ground for believing that he has been guilty of offences punishable with de ath or imprisonment for life except when a case is covered by the proviso to Sec tion 437(1), which says that even such an accused person may be released, if the accused person is a woman or is sick or is infirm or if, for any other special reason, the Special Court considers it just and proper to release such a person. Unlike, therefore, the powers, which a Court of Session enjoys, while co 66. nsidering a bail application, under Section 439, the Special Court runs the limi tations, which are imposed by Section 437. Resultantly, therefore, a Special Cou rt cannot enlarge a person on bail except to the extent as provided in Section 4 37. Apart from the limitations imposed on the powers of a Special Court as are p rescribed by Section 437, even the special statute, which creates the Special Co urt, can impose additional limitations. No wonder, therefore, that the power to grant bail, in the case of NDPS, is much more restricted than what Section 437 p rovides inasmuch as Section 37 of the NDPS imposes further limitations, on the S pecial Court, in matters of granting bail and such limitations would apply to a Sessions Judge even if he acts as a Special Court under the NDPS Act, for, while exercising the powers of a Special Court, the Session Judge does not act or fun ******* ction as a Court of Session, but as a Court of ordinary criminal jurisdiction. ****** Having held that the source of power of a Designated Court, under the TA 74. DA, to grant bail is traceable to Section 437 inasmuch as the Designated Court f alls within the expression ’a Court other than the High Court or Court of Sessio n’, the Apex Court further clarified that the Designated Court’s power to grant bail is not contained in Section 20(8); rather, Section 20(8) places only limita tions on such power in addition to the limitations, which the Code has already i mposed, on a Designated Court, by making it a Court within the ambit of Section 437. This was made explicit by Section 20(9), which provided that the limitatio ns on the granting of bail, specified in sub-section (8), are in addition to the ******* limitations under the Code or any other law for the time being in force. (cid:29)

48. ted above, reached in the case of Redaul Hussain Khan ( Apart from the fact that the conclusions, on the questions of law indica