Crl.A. 146/2011 - Gauhati High Court

Crl. Appeal No.146/2011
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THE GAUHATI HIGH COURT AT GUWAHATI
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
Criminal Appeal No.146 of 2011
Sougaijam Rakesh Singh
…. …. Appellant
- Versus -
The National Investigation Agency
… …. Respondent.
For the appellant : Mr. D. K. Mishra, Sr. Advocate.
Mr. B. Prasad, Advocate.
For the State : Mr. D. K. Das, Standing Counsel, NIA.
Ms. M. Boro, Advocate.
B E F O R E
HON’BLE THE CHIEF JUSTICE MR. A. K. GOEL
THE HON’BLE MR. JUSTICE C. R. SARMA
Date of hearing : 27.01.2012
Date of judgment : 27.01.2012.
(A. K. Goel, CJ.)
JUDGMENT AND ORDER (Oral)
1. This appeal has been preferred under Section 21(4) of the
National Investigation Agency Act, 2008 (NIA Act), against order
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of refusal of bail to the appellant by the trial Court in Special
N.I.A. Case No.01/2010.
2. The case against the appellant was initiated vide F.I.R.
dated 01.05.2010 lodged by City Police Reserve, Guwahati,
stating that Sub-Inspector Sh. T. Borah with other police officers
conducted search and raid on 30.4.2010 at 8.30 P.M. in the house
of Sh. Y. Nabinchand along with co-accused Khundong Tomba
@ Bikramjit of Manipur East at Guwahati during which a laptop,
three pendrives, one wireless internet connection, one identity
card in the name of Dilip Kumar and cash of Rs.50,000/- was
recovered. During interrogation they disclosed themselves to be
members of UNLF. Khundong Tomba is the vice-chairman of
UNLF, a banned organisation and Nabin Chand is the Deputy
Secretary HRD of the said organisation. They were staying at
Guwahati secretly and carrying on illegal activities against the
Government with the object of cessation of Manipur from India
by arms terror and indulging in extortion to finance the unlawful
outfits. After registering the said F.I.R. under the provisions of
Sections 120(B), 121, 121(A), 122, 468 IPC and Sections 10 and 13
of the Unlawful Activities (Prevention) Act, 1967 (UA(P) Act), the
case was again registered under the provisions of NIA Act as per
directions of the Ministry of Home Affairs, Government of India,
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vide letter dated 14.9.2010. The investigation was taken over by
the NIA. The appellant was arrested on 28.8.2010. After
investigation, final report under Section 173 Cr.P.C. was filed on
14.2.2011 against 19 persons. The appellant has been arrayed as
accused No.6. In the Final Report it, was alleged that apart from
two accused arrested during the search, 17 more accused
persons were found to be involved in conspiracy to wage war
against the Union of India by committing or attempting to
commit terrorist acts, raising funds for committing terrorist
activities, attempting terrorist acts which amounted to scheduled
offences under the NIA Act. It was found during investigation that
the appellant had carried out activities of UNLF in the form of
disrupting the supply for community life in India, blockade of the
NH-39 by threatening the unity, integrity and sovereignty of India.
He was in touch with other co-conspirators and he acted in
waging war against the nation. He had proximity with the top
echelon of UNLF and raised and clandestinely transferred fund to
the UNLF. This, according to the investigating officer, amounted
to offence under Sections 120(B), 121, 121(A), 122 IPC and
Sections 16, 17, 18 and 20 of UA(P) Act, 1967, as amended vide
Act 35 of 2008 and due sanction for prosecution under the said
provisions had been obtained.
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3. The appellant applied for bail before the trial Court by
submitting that there was no evidence to implicate him and that
there was nothing to show that he carried out any activity of the
UNLF in the form of disrupting the supply for community life in
India by blockade of the NH-39 or by threatening the unity,
integrity and sovereignty of India. He was granted bail by Judicial
Magistrate First Class, Imphal West, on 06.09.2010 in FIR No.10(01
2008 S EK P.S. U/s 120B/121/121A/124 A IPC and U/S 17 and 20 of
UA(P) Act. He had a family consisting of his wife and two minor
children in addition to his old parents and was settled at Imphal.
Reliance was placed on judgment of the Hon’ble Supreme Court
in Arup Bhuyan vs. State of Assam [(2011)3 SCC 377] holding that
mere membership of an organisation was not an offence under
Section 20 of the UA(P) Act, 1967, unless a person resorted to
violence or incited people to violence or created public disorder
by violence or incitement to violence.
4. The prayer for bail was opposed on the ground that there
was material against the appellant and the witnesses examined
by the Investigating Officer had implicated him in the offences
alleged.
5. The learned trial Court relying upon Section 43D(5) of the
UA(P) Act held that there were reasonable grounds for believing
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that the accusation against the appellant was prima facie true.
Accordingly, bail application was dismissed.
6. We have heard Mr. D. K. Mishra, learned Senior Counsel,
appearing for the appellant, and Mr. D. K. Das, learned Standing
Counsel, NIA.
7. Learned counsel for the appellant submits that from the
material available on record it could not be held that there were
reasonable grounds for believing that the accused was guilty
and formation of opinion for this purpose, for grant of bail was
intended to be of prima facie in nature based on probability of
conviction. It was not expected that the Court may reach a
conclusion that the appellant will certainly be acquitted. It was
submitted that parameters to be applied for reaching
satisfaction under Section 43D(5) of the UA(P) Act were the same
as applicable to pari materia provisions of Section 21(4) of the
Maharashtra Control of Organised Crime Act, 1999 (MCOCA).
The said provision is reproduced below :
“21. (4) Notwithstanding anything contained in the
Code, no person accused of an offence punishable under
this Act shall, if in custody, be released on bail or on his own
bond, unless ---
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(a) the Public Prosecutor has been given an
opportunity to oppose the application of such
release; and
(b) where the Public Prosecutor opposes the
application, the court is satisfied that there are
reasonable grounds for believing that he is not guilty
of such offence and that he is not likely to commit
any offence while on bail.”
For this proposition, reliance has been placed on the judgments
of the Hon’ble Supreme Court in Ranjitsing Brahmajeetsing
Sharma v. State of Maharashtra and others [(2005)5 SCC 294] and
Chenna Boyanna Krishna Yadav v. State of Maharashtra and
another [(2007)1 SCC 242].
8. Referring to the allegations it was submitted that as regards
blockade of NH-39, the said blockade was later found to be by
different Naga groups and not by UNLF which appears from the
affidavit-in-reply filed on behalf of the NIA by Surinder Singh
Bakshi, DSP, NIA in para 22. The said statement is as under :
”22. That with reference to the ground taken in (ii) it
is submitted that in April 2010, a stretch of NH 39 (NH
39 starts from Numaligarh, Assam runs through
Dimapur-Kohima-Imphal and ends at Moreh), which
connects Dimapur to Imphal, was blocked by Naga
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Groups resulting in restriction of goods transportation
to Imphal via Dimapur. Initially this economic
blockade continued for 68 days. The UNLF, with their
aim and object of secession of Manipur from India,
utilise the situation by creating an anti-India
atmosphere in Manipur by convincing the general
public of Manipur that Govt of India is paying no
attention to the problems of Manipuri people and still
neglecting their needs. The UNLF in order to provoke
the anti Naga as well as anti India sentiments in the
minds of general public of Manipur, started its
campaign through its Frontal Organisations. UNLF
gave its Frontal Organisations especially AMSU,
AAMSU and NEMSO to two fold task on the issue of NH
39 blockade; first, of conducting Public Meetings,
Demonstrations, Protest March etc. and second, of
disruptive and violent activities.
The UNLF wanted to block the starting stretch of
NH 39 i.e. from Numaligarh, Assam to Dimapur, so that
the supply of goods to State of Nagaland from Assam
side is stopped. For this they activated their Frontal
Organisation Students union and NGOs. This is evident
from the documents lawfully recovered from email
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accounts of R K Meghen (A19) and Nongyai (A18) u/s
27 of I.E.A 1872 after their disclosure statement. In one
such mail, chairman of the UNLF Meghen (A 19)
clearly writes to the organisation Secretary Nongyai
(A18) that
“when we have decided that no truck
should run in NH 39, then how can some
drivers are ruining their truck. Tell AAMSU
(All Assam Manipur Students’ Union) to
burn down 1 or 2 trucks so that no one
dares to run the truck that side and the
incident of Arson must get good and
effective media coverage.”
In response to this letter Nongyai (A18) writes, that :
“I will tell AAMSU to burn down 1 or 2 trucks of
Non Manipuri’s in Assam side of NH 39.”
Copy of the email is enclosed
Further, some more documentary evidence have
come up during further investigation of this case
which clearly show the involvement of S. Rakesh Singh
(A6) in this campaign of UNLF on issue of NH 39
blockade. These have been mentioned in the case
Diary.”
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It was submitted that it could not be said that there was
adequate material against the appellant to support the
allegation.
9. In support of the allegation of the appellant being
associated with the UNLF, only material annexed to the charge-
sheet is in the form of statements under Section 161 Cr.P.C. of PW
2, PW 3, PW 10, PW 11 and PW 12. The affidavit filed on behalf of
the NIA dated 26.9.2011 relies upon the said statements only. The
said statements merely refer to confession made by the
appellant before the police which was not admissible in
evidence in view of Section 25 of the Evidence Act.
10. Coming to the allegation of raising funds, it was submitted
that through the Balloon Project, reliance is placed on copies of
statements of accounts referring to certain entries mentioned in
the name of Rakhesh or Rak at different places, the said
statements did not mention the name of the appellant with
certainty and are not admissible under Section 65B of the
Evidence Act. In any case, in view of law laid down in V.C.Shukla
[(1998)3 SCC 410 para 15] the entries by themselves cannot be
held to be adequate evidence on which conviction of the
appellant could be based. It was further submitted that co-
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accused M. Londhoni Devi was granted bail by this Court vide
judgment dated 01.07.2011 reported in 2011 (3) GLT 805. The
appellant had already been in custody for a period of about 17
months and the case is still at the stage of charge.
11. Learned counsel for the NIA opposed the above submission
by submitting that a supplementary charge-sheet was being filed
on the basis of documents and evidence of the three witnesses,
namely, (1) Ngamban Robert Singh, (2) Dr. Nongthombam
Premchand and (3) M.C. Arun, who have been examined on
8.8.2011, 01.11.2011 and 23.08.2011, respectively stating that the
appellant was associated with the UNLF and was transferring
funds to the said organisation. The statements of transactions
established that there was conspiracy for procurement of arms
from foreign countries, visit of UNLF to China, obtaining of foreign
support for arms and ammunition, extortion by UNLF, funds
provided to Rakesh by UNLF and photograph of Rakesh along
with Arun and Prem. It was further submitted that bail cannot be
granted without compliance with the provisions of Section 43D of
the UA(P) Act. It was also submitted that charge of conspiracy
itself was a substantive charge in which case the role of individual
was not required to be seen individually. Reliance was placed on
following judgments :
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(i) (2001)7 SCC 596 Firozuddin vs. State of Kerala
(para 22-33)
(ii) (2002) 7 SCC 334 Mohd. Khalid vs. State of West
Bengal (Para 17-27).
(iii) (1996)4 SCC 659 State of Maharashtra vs. Som Nath
Thapa (Para 23-24).
(iv) (1999) 5 SCC 253 State vs. Nalini (Para 583, 652-
665).
(v) (1988) 3 SCC 609, Kehar Singh vs. State (Para 258-
260).
(vi) (1993) 3 SCC 609 Ajay Agarwal vs. UOI (Para 24-25).
(vii) (1977)4 SCC 540 Yash Pal Mittal vs. State (Para 9).
12. Controverting the submissions of learned counsel for the
NIA, learned counsel for the appellant submitted that the
documents about procurement of arms or ammunition or visit to
China or establishing foothold in China or conspiracy for foreign
support for arms from China or extortion activity of the appellant
do not in any way refer to the name of the appellant. Even if
name of the appellant was taken to be mentioned in the
statements of transactions, there was no evidence to prove the
said transactions and entries by itself were not enough to convict
the appellant. The statements of witnesses who had made
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confession about their own involvement in giving funds to UNLF
made them also co-accused and their statements were covered
by Section 30 of the Evidence Act. Reliance has been placed on
judgment of the Hon’Ble Supreme Court in Nishi Kant Jha v. State
of Bihar [AIR 1969 sc 422] to submit that if confessional statement
was self-inculpatory, the same was admissible which will be hit by
Section 25 of the Evidence Act and self-exculpatory part could
not be relied upon to convict the appellant in view of Section 30
of the Evidence Act in absence of any other evidence. The
charge of conspiracy could be sustained only with any other
substantive offence as held in State through Superintendent of
Police, CBI/SIT v. Nalini and others [1999 5 SCC 253 para 42].
Reliance was also placed on judgment in State (NCT of Delhi) v.
Navjot Sandhu @ Afsan Guru [(2005) 11 SCC 600], to the effect
that theory of agency under Section 10 of the Evidence Act was
not applicable to charge a conspiracy under Section 120B IPC.
The appellant could not, in these circumstances, be convicted
for the offences, if any, by the UNLF. In the charge-sheet no
offence of the UNLF to which the appellant may have conspired
has been specified.
13. We have given our consideration to the rival submissions.
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14. The question for consideration is whether on the material
available on record it can be held that there is a fair chance of
conviction of the appellant.
15. We are of the view that such an opinion cannot be formed
at this stage. Only material available on record, as already
mentioned, is in the form of statements of accounts in support of
which there is no other evidence. The evidence of witnesses
implicating the appellant may not be enough to convict the
appellant in view of Section 30 of the Evidence Act. The charge
of conspiracy may not be sustained without specifying any
particular offence of UNLF in which the appellant had conspired.
16. In view of above, without expressing any final view on the
merits of the case, we are of the view that case for granting bail
has been made out.
17. Accordingly this appeal is allowed and the appellant is
granted bail to the satisfaction of learned trial Court subject to
the following conditions :
(i) The appellant should make himself available to the
NIA whenever required;
(ii) If the appellant is in possession of a valid passport
he should surrender it to the NIA;
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(iii) The appellant will not leave Imphal where he
resides, without the permissions of the Investigating
Officer of the NIA.
(iv) The appellant will be released on the production of
two sureties of an amount of Rs.50,000/- each to
the satisfaction of the learned trial Judge.
(v) The appellant will not make any contact with any
of the witnesses or any member of the UNLF during
the period he is on bail.
(vi) The appellant will report to the Police Station,
Imphal, everyday and will not leave Imphal without
prior permission of the Chief Judicial Magistrate,
Imphal. The CJM, Imphal, will grant such permission
for enabling the appellant to appear before the
Court at Guwahati in connection with the pending
prosecution or in any other eventuality in which it
may be considered necessary and proper.
JUDGE CHIEF JUSTICE
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