Subhan Mian v. This appeal is directed against the order dated

The first supplementary charge sheet bearing Charge Sheet No. 32/2018 was filed by the NIA on

21.12.2018.

It has been submitted by Mr. Indrajit Sinha, learned counsel for the appellant that the appellant is an employee of CCL who was assigned by the management of Magadh Amrapali area of M/s Central Coalfields Ltd, the job of liaisoning with the villagers of Magadh Amrapali area with respect to land acquisition as also to deal with the other teething problems which arises out of acquisition of land. While putting reliance on the letter dated 04.06.2017 relating to the aforesaid facts, Mr. Sinha has submitted that the appellant mainly worked as a mediator between the villagers, the Company and the TPC operatives for smoothening of the entire process and such initiation at -4- the behest of the management cannot be termed to be a terrorist act. Mr. Sinha, while taking us through the supplementary charge-sheet has further submitted that co- accused Ajit Kumar Thakur who was the then General Manager of Magadh Amrapali Colliery and who was involved in acting as a conduit between the various stake holders as well as the TPC operatives for opening and running of the colliery in a smooth manner and who was also alleged to have abetted in collection of levy through coal transporters and contractors which have been construed by NIA to be terror funds has been granted bail by this Court in Criminal Appeal (D.B.) No. 999 of 2019. He has further submitted that the appellant does not share the ideological platform of the terrorist gang and the doctrine “guilt by association” cannot indict the appellant of being involved and/or furthering terrorist activities. In such context, he has referred to the case of “Indra Das versus State of Assam” reported in (2011) 3 SCC 380. The appellant is in custody since 04.11.2018 and the prosecution has to examine as many as 185 witnesses and there being no chance of the trial being concluded in the near future apart from the allegations not constituting a terrorist act against the appellant, the same, as per Mr. Sinha, makes the impugned order of rejection of bail of the appellant unsustainable.

Mr. A.K. Das, learned Special P.P. for the NIA has strenuously argued that the case of “Ajit Kumar Thakur” is on an altogether different platform and cannot at all be equated with the case of the appellant. The appellant who is a hardened criminal had managed to secure a job in CCL on being a land loser and by virtue of the directions of the management of CCL liaisoned with the villagers with respect to acquisition of land and had exceeded such directives by setting up a transport company in the name of his wife and was actively in league with the terrorist gang -5- in realizing his dues. Elaborating his submission, Mr. Das has taken us through the supplementary charge-sheet wherein the appellant has been attributed to have acted as a coordinator between TPC, CCL and the village committee. He also used to arrange meetings with TPC regional commander Akramanji who has been arrayed as A-14 in the supplementary charge-sheet. Mr. Das has also brought to the fore the nexus between the appellant and the operatives of TPC, Bindu Ganjhu (A-5), Akramanji @ Neta Ji @ Ravinder Ganjhu @ Ram Vinayak Bhokta (A-14) and Gopal Singh Bhokta @ Brijesh Ganjhu (A-15). He has further drawn the attention of the Court to the fact that with the extorted money the appellant had set up a transport company in the name of his wife Sabida Khatoon which operates in the name and style of M/s T.D. Enterprises. The appellant was already involved in two criminal cases in Tandwa P.S. and Saria P.S. for heinous offences and his criminal background also paved the way in smooth transition with the activities of TPC. Instances of the involvement of the appellant have come to the surface in the evidence of P.W.48 (Protected Witness “F”), P.W.65, P.W.70 and P.W.95. He has also referred to the case of “Bindeshwar Ganjhu @ Bindu Ganjhu” in Criminal Appeal (D.B.) No. 29 of 2021 passed by this Court rejecting the prayer for bail which has been affirmed up to the Hon'ble Supreme Court. Mr. Das has, therefore, concluded his submissions by stating that since a prima facie case is made out against the appellant u/s 43-D(5) of the UAP Act the embargo with respect to grant of bail shall operate especially in view of the overwhelming materials collected by the Investigating Agency against the appellant.

We have heard the rival submissions and have also perused the various affidavits filed including the compilation of the statement of the witnesses submitted at the Bar by the learned Special P.P. for the NIA. -6- Details of the allegations against the appellant who has been arrayed as A-7 in the supplementary charge- sheet reads as follows:

17.18 Role and activities of / offences established against Subhan Mian (A-7): Therefore, as per the averments made hereinabove / in the pre-paragraphs, it is established that though he was employee of CCL in Amrapali coal mine, Chatra, he was closely associated with A-10 and the operatives of TPC including A-5, A-14 and A-15 and thereby became member of the terrorist gang as he was acting as conduit in between TPC and coal transporters and Coal purchasers (Delivery Order holders) for facilitating TPC in extortion of levy and abetted in raising of funds for the terrorist gang. He was operating M/s T.D. Enterprises, which was registered in the name of his wife Sabida Khatoon and the said company was engaged in lifting / transportation of coal in Amrapali Mines area. He even was in collusion with CPI(Maoist) as he is reported to supply Walkie-Talkie sets and cash to CPI(Maoist) in the year 2016. Therefore, it is established that Subhan Mian (A-7), colluded with A-10 and members of terrorist gang / unlawful association TPC, proscribed by Government of Jharkhand, and abetted / solicited / assisted in the operations / management of TPC in criminal conspiracy with members of the terrorist gang including A-5, A-14, A-15 and with other accused transporters / coal traders including A- 8 and A-9 with intent to aid the above said terrorist gang collected funds from illegitimate sources through extortion from the contractors / coal traders / transporters and thereby he conspired with co-accused for acquiring proceeds of terrorism. Though he is Public Servant, he abetted in raising terrorist fund by illegal means for himself or for co-accused. Thereby, accused Subhan Mian (A-7) committed offences under Sections 120B r/w 384, 414 and 109 of the IPC, Sections 17, 18, 20 and 21 of the UA(P) Act, Section 17 of the CLA Act, 1908.

The appellant, therefore, as per the charge-sheet acted as a conduit between TPC and coal transporters as well as coal purchasers for facilitating the extortion of levy by TPC. The inter-connectivity between the appellant and -7- A-5, A-14 and A-15 have been sought to be highlighted by Mr. Das by resorting to the findings recorded in the supplementary charge-sheet. So far as Bindeshwar Ganjhu @ Bindu Ganjhu (A-5) is concerned, he had colluded with the appellant to resolve issues related to levy. The role and activities of Akramanji @ Neta Ji @ Ravinder Ganjhu @ Ram Vinayak Bhokta (A-14) has been depicted in para

17.25 of the supplementary charge-sheet to the effect that he was closely associated with the appellant and A-10 (Ajit Kumar Thakur) in order to raise funds for the terrorist gang. The involvement of the appellant in conspiring with Gopal Singh Bhokta @ Brijesh Ganjhu (A-15) finds place at para 17.26 of the supplementary charge-sheet. Be it noted that as per para 17.25 of the supplementary charge-sheet the role and activities of the appellant seems to resonate with that of Ajit Kumar Thakur (A-10) who has been granted bail by this Court. However, some additional features seems to have been incorporated in the case of the appellant. The same includes the activities of the appellant, camouflaging the raising of funds for terrorist activities by running a transport company in the name of his wife and the evidence of some of the witnesses as categorized by Mr. Das.

We shall now deal with the evidence of the witnesses notably that of P.W.48, P.W.65, P.W.70 and P.W.95.

P.W.48 was involved in the business of transportation and he had approached the appellant on the recommendation of Ajit Kumar Thakur (A-10). He has stated about an instance where in a meeting Akramanji (A-14) had told this witness to give the work of transportation to Bindeshwar Ganjhu, Mantu Singh and the appellant and Akramanji had assured this witness that henceforth his transportation work shall not be affected. He has also stated that there was no hindrance when the -8- appellant was doing the transportation of coal. Certain dues of the appellant were also paid by this witness on the intervention of Akramanji. P.W.65 has stated that the meeting of five villagers with the TPC operatives was organized at the instance of the appellant. P.W.70 has also reiterated about the meeting held between the villagers, the members of TPC as well as the appellant and on a threat extended by Akramanji the villagers had agreed to open the colliery. As per P.W.95 Vishnu Agarwal of M/s Balaji transport had approached the appellant and consequently a meeting was held in which Akramanji had asked Vishnu Agrawal to distribute the transportation contract of coal to the appellant and two other persons.

The scenario which unfolds in the evidence of the witnesses noted above in the meetings held on various occasions is for opening of the colliery and smooth transportation of the coal. The wife of the appellant runs a transport company and the appellant was assigned by Akramanji as one of the persons who shall be the beneficiary of transportation of coal. The precursor to the acquaintance which had developed between the appellant and the TPC operatives seems to be the office order dated

04.06.2017 issued by the AGM / Staff Officer (mining) assigning the appellant of liaisoning with the villagers of Magadh Amrapali area with respect to acquisition of land and its consequences. The arrangement of the meetings with the various stake holders was also ascribed to Ajit Kumar Thakur (A-10) who was the then General Manager of Amrapali Magadh Coal Area Chatra, CCL and this Court while considering his application of bail in Criminal Appeal (D.B.) No. 999 of 2019 had held as follows:

16. Though certain allegations has been made by the witnesses regarding the appellant -9- receiving money from several sources, but it appears that nothing was recovered from the appellant. There is no allegation against the appellant of being involved in a terrorist act and he seems to have acted as a conduit for the opening and running of the colliery in a smooth manner and he had also participated in meetings to iron out the demands and differences of the various stake-holders. The responsibility of running the collieries and ensuring smooth transportation of coal devolved upon the appellant in his capacity of being the General Manager. Therefore, a prima-facie case under Section 43 (D) (5) of UAP Act is not made out against the appellant......

In the case of “Mahesh Agarwal versus Union of India through National Investigation Agency” in Cr. Appeal (D.B.) No. 175 of 2022, while considering Sections 15, 17 and 18 of the UAP Act, it has been held as follows: “30. Section 17 is a penal provision aimed at a person who raises or provides fund or collects fund or an attempt made in such context with a knowledge that such funds are likely to be used in full or in part by a terrorist organization or by a terrorist gang or by an individual terrorist to commit a terrorist act. The tenor of the said provision indicates a voluntary act by an individual in raising, providing or collecting funds for facilitating an act of terrorism. Section 15 (1)(a) (iii) envisages a terrorist act which can cause or likely to cause disruption of any supplies or services essential to the life of the community in India or in any foreign country and this provision has also been relied upon by the NIA, the reason being the disruption of supply of coal on account of the nefarious activities of the TPC. In fact, on the contrary, if the allegations made by the Investigating Agency are considered, some of the individuals at work at the ground level seems to have smoothened out the transportation of coal though at the price of being a victim of extortion and with an object for smooth running of the business.

Though “Mahesh Agarwal” was granted bail by this Court on consideration of the allegations which basically connoted his role as that of a victim of extortion primarily borne by the desire and object of smooth running of the business and the allegations against the appellant in the strict sense of the term is dissimilar to that of Mahesh Agarwal but at the same time one cannot ignore the fact that the appellant and Ajit Kumar Thakur were instrumental in calling meetings to iron out the differences between the various stake holders. We also cannot lose sight of the fact that the appellant was running a transport business in the name of his wife and by virtue of his acquaintances with the TPC operatives managed to secure substantial financial gain for himself. The common thread which runs through the evidence of the witnesses and the allegations in general is setting up of meetings between the various stake holders as well as the TPC operatives. There -12- does not seem to be recovery of any incriminating materials from the appellant.

So far as the antecedents of the appellant are concerned, the same has much been harped upon by Mr. A.K. Das but the said allegations were of a different nature and does not seem to indicate any terrorist act.

Reliance has also been placed by Mr. Das, on the orders passed by this Court in the case of “Bindeshwar Ganjhu @ Bindu Ganjhu versus The Union of India through NIA” in Criminal Appeal (D.B.) No. 29 of 2021, wherein the prayer for bail of the appellant had been dismissed and the said order was affirmed up to the Hon'ble Supreme Court in Special Leave to Appeal (Cri.) No(s). 7609/2022. Mr. Das in course of his submission has tried to impress upon the Court the nexus which was existing between the appellant and the said Bindeshwar Ganjhu @ Bindu Ganjhu. On a perusal of the order passed in Criminal Appeal (D.B.) No. 29 of 2021, it clearly transpires that Bindeshwar Ganjhu @ Bindu Ganjhu was a member of the terrorist gang and was involved in collection of levy from the transporters and D.O. Holders on the instruction of Akramanji (A-14) and had also acquired huge assets from the proceeds of terrorism. As noted above, the allegations against the appellant operates in a different sphere.

The role and activities of the appellant as depicted in para 17.18 of the first supplementary charge- sheet is of being a member of the terrorist gang as he was acting as a conduit in between TPC and Coal transporters as well as coal purchasers. In this context, reference may be made to the case of “Indra Das versus State of Assam” reported in (2011) 3 SCC 380, wherein it has been held as follows: “6. In our judgment in State of Kerala v. Raneef we had referred to the judgment of the US Supreme Court in Elfbrandt v. Russell which rejected the doctrine of “guilt by association”. -13- In Elfbrandt case Mr Douglas, J. speaking

7. for the Court observed: (L Ed pp. 325-26) “Those who join an organisation but do not share its unlawful purposes and who do not participate in its unlawful activities surely pose no threat…. This Act threatens the cherished freedom of association protected by the First Amendment, made applicable to the States through the Fourteenth Amendment. … A law which applies to membership without the ‘specific intent’ to further the illegal aims of the organisation infringes unnecessarily on protected freedoms. It rests on the doctrine of ‘guilt by association’ which has no place here.” The decision relied on its earlier judgments in Schneiderman v. United States, US at p. 136 and Schware v. Board of Bar Examiners, US at p. 246. The judgment in Elfbrandt case also referred to the decision of the US Supreme Court in Scales v. United States, US at p. 229 which made a distinction between an active and a passive member of an organisation. 8. Supreme Court observed: (L Ed pp. 801-02) In Scales case Mr Harlan, J. of the US “The clause [in the McCarran Act, 1950] does not make criminal all association with an organisation which has been shown to engage in illegal advocacy. There must be clear proof that a defendant ‘specifically intend[s] to accomplish [the aims of the organisation] by resort to violence’. … a person may be foolish, deluded, or perhaps merely optimistic, but he is not by this statute made a criminal.”

The appellant, therefore, seems to have been indicted on the doctrine of “guilt by association” associating himself with the terrorist gang for the purpose of furthering the cause of smooth running of the colliery as well as transportation of coal and also to further his business and financial gains by promoting the transport company which is in the name and his wife which would not prima facie make him an active member of the terrorist gang.

Apart from the factors noted above, we are also aware of the fact that the appellant is in custody since

04.11.2018 and the charge-sheet indicates that there are -14- 185 witnesses though Mr. Das has submitted that there is no requirement of examination of all the witnesses. The trial seems to be proceeding as there is a specific direction by the Hon'ble Supreme Court in the case of “Bindeshwar Ganjhu @ Bindu Ganjhu versus The Union of India through NIA” (supra) that the trial should be conducted on a day- today basis and should be concluded within one year. At this juncture, we may refer to the case of “Union of India versus K.A. Najeeb”, reported in (2021) 3 SCC 713, wherein it has been held as follows:

17. It is thus clear to us that the presence of statutory restrictions like Section 43- D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.

The trial though is likely to be concluded in the near future considering the direction of the Hon'ble Supreme Court in the case of Bindeshwar Ganjhu @ Bindu Ganjhu but regard being had to the facts, based on the discussion made herein before that no prima facie is made out against the appellant as envisaged u/s 43-D(5) of the UAP Act and the period of incarceration undergone by the appellant, we are of the conscious view that the appellant deserves the privilege of bail. -15-

We accordingly set aside the impugned order dated 24.11.2021 passed by the learned Additional Judicial Commissioner-XVI-cum-Special Judge, NIA, Ranchi connection with Special (NIA) 03/2018 (R.C. Case No. 06/ 2018/NIA/DLI), arising out of Tandwa P.S. Case No. 02/2016, by which the prayer for bail of the appellant was rejected.

The appellant shall be released on bail on usual conditions to be decided by the learned trial court.

We make it clear that the learned trial court shall not be influenced while conducting the trial of any of the observations made by us in this order as such observations/findings are restricted only for the purpose of grant of bail to the appellant.

Since it has been submitted at the Bar by Mr. A.K. Das, learned Special P.P. for the NIA that one of the protected witness has been threatened for which a letter dated 15.08.2022 has also been produced, we direct that the learned trial court shall ensure that the witnesses are extended appropriate protection.

This appeal is allowed. (Rongon Mukhopadhyay, J.) (Ambuj Nath, J.) Alok/-