Crl.A. 146/2011 - Gauhati High Court
Crl.A. 146/2011 - Gauhati High Court
Crl.A. 146/2011 - Gauhati High Court
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<strong>Crl</strong>. Appeal No.<strong>146</strong>/<strong>2011</strong><br />
1<br />
THE GAUHATI HIGH COURT AT GUWAHATI<br />
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,<br />
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)<br />
Criminal Appeal No.<strong>146</strong> of <strong>2011</strong><br />
Sougaijam Rakesh Singh<br />
…. …. Appellant<br />
- Versus -<br />
The National Investigation Agency<br />
… …. Respondent.<br />
For the appellant : Mr. D. K. Mishra, Sr. Advocate.<br />
Mr. B. Prasad, Advocate.<br />
For the State : Mr. D. K. Das, Standing Counsel, NIA.<br />
Ms. M. Boro, Advocate.<br />
B E F O R E<br />
HON’BLE THE CHIEF JUSTICE MR. A. K. GOEL<br />
THE HON’BLE MR. JUSTICE C. R. SARMA<br />
Date of hearing : 27.01.2012<br />
Date of judgment : 27.01.2012.<br />
(A. K. Goel, CJ.)<br />
JUDGMENT AND ORDER (Oral)<br />
1. This appeal has been preferred under Section 21(4) of the<br />
National Investigation Agency Act, 2008 (NIA Act), against order<br />
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of refusal of bail to the appellant by the trial <strong>Court</strong> in Special<br />
N.I.A. Case No.01/2010.<br />
2. The case against the appellant was initiated vide F.I.R.<br />
dated 01.05.2010 lodged by City Police Reserve, Guwahati,<br />
stating that Sub-Inspector Sh. T. Borah with other police officers<br />
conducted search and raid on 30.4.2010 at 8.30 P.M. in the house<br />
of Sh. Y. Nabinchand along with co-accused Khundong Tomba<br />
@ Bikramjit of Manipur East at Guwahati during which a laptop,<br />
three pendrives, one wireless internet connection, one identity<br />
card in the name of Dilip Kumar and cash of Rs.50,000/- was<br />
recovered. During interrogation they disclosed themselves to be<br />
members of UNLF. Khundong Tomba is the vice-chairman of<br />
UNLF, a banned organisation and Nabin Chand is the Deputy<br />
Secretary HRD of the said organisation. They were staying at<br />
Guwahati secretly and carrying on illegal activities against the<br />
Government with the object of cessation of Manipur from India<br />
by arms terror and indulging in extortion to finance the unlawful<br />
outfits. After registering the said F.I.R. under the provisions of<br />
Sections 120(B), 121, 121(A), 122, 468 IPC and Sections 10 and 13<br />
of the Unlawful Activities (Prevention) Act, 1967 (UA(P) Act), the<br />
case was again registered under the provisions of NIA Act as per<br />
directions of the Ministry of Home Affairs, Government of India,<br />
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vide letter dated 14.9.2010. The investigation was taken over by<br />
the NIA. The appellant was arrested on 28.8.2010. After<br />
investigation, final report under Section 173 Cr.P.C. was filed on<br />
14.2.<strong>2011</strong> against 19 persons. The appellant has been arrayed as<br />
accused No.6. In the Final Report it, was alleged that apart from<br />
two accused arrested during the search, 17 more accused<br />
persons were found to be involved in conspiracy to wage war<br />
against the Union of India by committing or attempting to<br />
commit terrorist acts, raising funds for committing terrorist<br />
activities, attempting terrorist acts which amounted to scheduled<br />
offences under the NIA Act. It was found during investigation that<br />
the appellant had carried out activities of UNLF in the form of<br />
disrupting the supply for community life in India, blockade of the<br />
NH-39 by threatening the unity, integrity and sovereignty of India.<br />
He was in touch with other co-conspirators and he acted in<br />
waging war against the nation. He had proximity with the top<br />
echelon of UNLF and raised and clandestinely transferred fund to<br />
the UNLF. This, according to the investigating officer, amounted<br />
to offence under Sections 120(B), 121, 121(A), 122 IPC and<br />
Sections 16, 17, 18 and 20 of UA(P) Act, 1967, as amended vide<br />
Act 35 of 2008 and due sanction for prosecution under the said<br />
provisions had been obtained.<br />
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3. The appellant applied for bail before the trial <strong>Court</strong> by<br />
submitting that there was no evidence to implicate him and that<br />
there was nothing to show that he carried out any activity of the<br />
UNLF in the form of disrupting the supply for community life in<br />
India by blockade of the NH-39 or by threatening the unity,<br />
integrity and sovereignty of India. He was granted bail by Judicial<br />
Magistrate First Class, Imphal West, on 06.09.2010 in FIR No.10(01<br />
2008 S EK P.S. U/s 120B/121/121A/124 A IPC and U/S 17 and 20 of<br />
UA(P) Act. He had a family consisting of his wife and two minor<br />
children in addition to his old parents and was settled at Imphal.<br />
Reliance was placed on judgment of the Hon’ble Supreme <strong>Court</strong><br />
in Arup Bhuyan vs. State of Assam [(<strong>2011</strong>)3 SCC 377] holding that<br />
mere membership of an organisation was not an offence under<br />
Section 20 of the UA(P) Act, 1967, unless a person resorted to<br />
violence or incited people to violence or created public disorder<br />
by violence or incitement to violence.<br />
4. The prayer for bail was opposed on the ground that there<br />
was material against the appellant and the witnesses examined<br />
by the Investigating Officer had implicated him in the offences<br />
alleged.<br />
5. The learned trial <strong>Court</strong> relying upon Section 43D(5) of the<br />
UA(P) Act held that there were reasonable grounds for believing<br />
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that the accusation against the appellant was prima facie true.<br />
Accordingly, bail application was dismissed.<br />
6. We have heard Mr. D. K. Mishra, learned Senior Counsel,<br />
appearing for the appellant, and Mr. D. K. Das, learned Standing<br />
Counsel, NIA.<br />
7. Learned counsel for the appellant submits that from the<br />
material available on record it could not be held that there were<br />
reasonable grounds for believing that the accused was guilty<br />
and formation of opinion for this purpose, for grant of bail was<br />
intended to be of prima facie in nature based on probability of<br />
conviction. It was not expected that the <strong>Court</strong> may reach a<br />
conclusion that the appellant will certainly be acquitted. It was<br />
submitted that parameters to be applied for reaching<br />
satisfaction under Section 43D(5) of the UA(P) Act were the same<br />
as applicable to pari materia provisions of Section 21(4) of the<br />
Maharashtra Control of Organised Crime Act, 1999 (MCOCA).<br />
The said provision is reproduced below :<br />
“21. (4) Notwithstanding anything contained in the<br />
Code, no person accused of an offence punishable under<br />
this Act shall, if in custody, be released on bail or on his own<br />
bond, unless ---<br />
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(a) the Public Prosecutor has been given an<br />
opportunity to oppose the application of such<br />
release; and<br />
(b) where the Public Prosecutor opposes the<br />
application, the court is satisfied that there are<br />
reasonable grounds for believing that he is not guilty<br />
of such offence and that he is not likely to commit<br />
any offence while on bail.”<br />
For this proposition, reliance has been placed on the judgments<br />
of the Hon’ble Supreme <strong>Court</strong> in Ranjitsing Brahmajeetsing<br />
Sharma v. State of Maharashtra and others [(2005)5 SCC 294] and<br />
Chenna Boyanna Krishna Yadav v. State of Maharashtra and<br />
another [(2007)1 SCC 242].<br />
8. Referring to the allegations it was submitted that as regards<br />
blockade of NH-39, the said blockade was later found to be by<br />
different Naga groups and not by UNLF which appears from the<br />
affidavit-in-reply filed on behalf of the NIA by Surinder Singh<br />
Bakshi, DSP, NIA in para 22. The said statement is as under :<br />
”22. That with reference to the ground taken in (ii) it<br />
is submitted that in April 2010, a stretch of NH 39 (NH<br />
39 starts from Numaligarh, Assam runs through<br />
Dimapur-Kohima-Imphal and ends at Moreh), which<br />
connects Dimapur to Imphal, was blocked by Naga<br />
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Groups resulting in restriction of goods transportation<br />
to Imphal via Dimapur. Initially this economic<br />
blockade continued for 68 days. The UNLF, with their<br />
aim and object of secession of Manipur from India,<br />
utilise the situation by creating an anti-India<br />
atmosphere in Manipur by convincing the general<br />
public of Manipur that Govt of India is paying no<br />
attention to the problems of Manipuri people and still<br />
neglecting their needs. The UNLF in order to provoke<br />
the anti Naga as well as anti India sentiments in the<br />
minds of general public of Manipur, started its<br />
campaign through its Frontal Organisations. UNLF<br />
gave its Frontal Organisations especially AMSU,<br />
AAMSU and NEMSO to two fold task on the issue of NH<br />
39 blockade; first, of conducting Public Meetings,<br />
Demonstrations, Protest March etc. and second, of<br />
disruptive and violent activities.<br />
The UNLF wanted to block the starting stretch of<br />
NH 39 i.e. from Numaligarh, Assam to Dimapur, so that<br />
the supply of goods to State of Nagaland from Assam<br />
side is stopped. For this they activated their Frontal<br />
Organisation Students union and NGOs. This is evident<br />
from the documents lawfully recovered from email<br />
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accounts of R K Meghen (A19) and Nongyai (A18) u/s<br />
27 of I.E.A 1872 after their disclosure statement. In one<br />
such mail, chairman of the UNLF Meghen (A 19)<br />
clearly writes to the organisation Secretary Nongyai<br />
(A18) that<br />
“when we have decided that no truck<br />
should run in NH 39, then how can some<br />
drivers are ruining their truck. Tell AAMSU<br />
(All Assam Manipur Students’ Union) to<br />
burn down 1 or 2 trucks so that no one<br />
dares to run the truck that side and the<br />
incident of Arson must get good and<br />
effective media coverage.”<br />
In response to this letter Nongyai (A18) writes, that :<br />
“I will tell AAMSU to burn down 1 or 2 trucks of<br />
Non Manipuri’s in Assam side of NH 39.”<br />
Copy of the email is enclosed<br />
Further, some more documentary evidence have<br />
come up during further investigation of this case<br />
which clearly show the involvement of S. Rakesh Singh<br />
(A6) in this campaign of UNLF on issue of NH 39<br />
blockade. These have been mentioned in the case<br />
Diary.”<br />
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It was submitted that it could not be said that there was<br />
adequate material against the appellant to support the<br />
allegation.<br />
9. In support of the allegation of the appellant being<br />
associated with the UNLF, only material annexed to the charge-<br />
sheet is in the form of statements under Section 161 Cr.P.C. of PW<br />
2, PW 3, PW 10, PW 11 and PW 12. The affidavit filed on behalf of<br />
the NIA dated 26.9.<strong>2011</strong> relies upon the said statements only. The<br />
said statements merely refer to confession made by the<br />
appellant before the police which was not admissible in<br />
evidence in view of Section 25 of the Evidence Act.<br />
10. Coming to the allegation of raising funds, it was submitted<br />
that through the Balloon Project, reliance is placed on copies of<br />
statements of accounts referring to certain entries mentioned in<br />
the name of Rakhesh or Rak at different places, the said<br />
statements did not mention the name of the appellant with<br />
certainty and are not admissible under Section 65B of the<br />
Evidence Act. In any case, in view of law laid down in V.C.Shukla<br />
[(1998)3 SCC 410 para 15] the entries by themselves cannot be<br />
held to be adequate evidence on which conviction of the<br />
appellant could be based. It was further submitted that co-<br />
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accused M. Londhoni Devi was granted bail by this <strong>Court</strong> vide<br />
judgment dated 01.07.<strong>2011</strong> reported in <strong>2011</strong> (3) GLT 805. The<br />
appellant had already been in custody for a period of about 17<br />
months and the case is still at the stage of charge.<br />
11. Learned counsel for the NIA opposed the above submission<br />
by submitting that a supplementary charge-sheet was being filed<br />
on the basis of documents and evidence of the three witnesses,<br />
namely, (1) Ngamban Robert Singh, (2) Dr. Nongthombam<br />
Premchand and (3) M.C. Arun, who have been examined on<br />
8.8.<strong>2011</strong>, 01.11.<strong>2011</strong> and 23.08.<strong>2011</strong>, respectively stating that the<br />
appellant was associated with the UNLF and was transferring<br />
funds to the said organisation. The statements of transactions<br />
established that there was conspiracy for procurement of arms<br />
from foreign countries, visit of UNLF to China, obtaining of foreign<br />
support for arms and ammunition, extortion by UNLF, funds<br />
provided to Rakesh by UNLF and photograph of Rakesh along<br />
with Arun and Prem. It was further submitted that bail cannot be<br />
granted without compliance with the provisions of Section 43D of<br />
the UA(P) Act. It was also submitted that charge of conspiracy<br />
itself was a substantive charge in which case the role of individual<br />
was not required to be seen individually. Reliance was placed on<br />
following judgments :<br />
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(i) (2001)7 SCC 596 Firozuddin vs. State of Kerala<br />
(para 22-33)<br />
(ii) (2002) 7 SCC 334 Mohd. Khalid vs. State of West<br />
Bengal (Para 17-27).<br />
(iii) (1996)4 SCC 659 State of Maharashtra vs. Som Nath<br />
Thapa (Para 23-24).<br />
(iv) (1999) 5 SCC 253 State vs. Nalini (Para 583, 652-<br />
665).<br />
(v) (1988) 3 SCC 609, Kehar Singh vs. State (Para 258-<br />
260).<br />
(vi) (1993) 3 SCC 609 Ajay Agarwal vs. UOI (Para 24-25).<br />
(vii) (1977)4 SCC 540 Yash Pal Mittal vs. State (Para 9).<br />
12. Controverting the submissions of learned counsel for the<br />
NIA, learned counsel for the appellant submitted that the<br />
documents about procurement of arms or ammunition or visit to<br />
China or establishing foothold in China or conspiracy for foreign<br />
support for arms from China or extortion activity of the appellant<br />
do not in any way refer to the name of the appellant. Even if<br />
name of the appellant was taken to be mentioned in the<br />
statements of transactions, there was no evidence to prove the<br />
said transactions and entries by itself were not enough to convict<br />
the appellant. The statements of witnesses who had made<br />
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confession about their own involvement in giving funds to UNLF<br />
made them also co-accused and their statements were covered<br />
by Section 30 of the Evidence Act. Reliance has been placed on<br />
judgment of the Hon’Ble Supreme <strong>Court</strong> in Nishi Kant Jha v. State<br />
of Bihar [AIR 1969 sc 422] to submit that if confessional statement<br />
was self-inculpatory, the same was admissible which will be hit by<br />
Section 25 of the Evidence Act and self-exculpatory part could<br />
not be relied upon to convict the appellant in view of Section 30<br />
of the Evidence Act in absence of any other evidence. The<br />
charge of conspiracy could be sustained only with any other<br />
substantive offence as held in State through Superintendent of<br />
Police, CBI/SIT v. Nalini and others [1999 5 SCC 253 para 42].<br />
Reliance was also placed on judgment in State (NCT of Delhi) v.<br />
Navjot Sandhu @ Afsan Guru [(2005) 11 SCC 600], to the effect<br />
that theory of agency under Section 10 of the Evidence Act was<br />
not applicable to charge a conspiracy under Section 120B IPC.<br />
The appellant could not, in these circumstances, be convicted<br />
for the offences, if any, by the UNLF. In the charge-sheet no<br />
offence of the UNLF to which the appellant may have conspired<br />
has been specified.<br />
13. We have given our consideration to the rival submissions.<br />
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14. The question for consideration is whether on the material<br />
available on record it can be held that there is a fair chance of<br />
conviction of the appellant.<br />
15. We are of the view that such an opinion cannot be formed<br />
at this stage. Only material available on record, as already<br />
mentioned, is in the form of statements of accounts in support of<br />
which there is no other evidence. The evidence of witnesses<br />
implicating the appellant may not be enough to convict the<br />
appellant in view of Section 30 of the Evidence Act. The charge<br />
of conspiracy may not be sustained without specifying any<br />
particular offence of UNLF in which the appellant had conspired.<br />
16. In view of above, without expressing any final view on the<br />
merits of the case, we are of the view that case for granting bail<br />
has been made out.<br />
17. Accordingly this appeal is allowed and the appellant is<br />
granted bail to the satisfaction of learned trial <strong>Court</strong> subject to<br />
the following conditions :<br />
(i) The appellant should make himself available to the<br />
NIA whenever required;<br />
(ii) If the appellant is in possession of a valid passport<br />
he should surrender it to the NIA;<br />
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TUC<br />
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(iii) The appellant will not leave Imphal where he<br />
resides, without the permissions of the Investigating<br />
Officer of the NIA.<br />
(iv) The appellant will be released on the production of<br />
two sureties of an amount of Rs.50,000/- each to<br />
the satisfaction of the learned trial Judge.<br />
(v) The appellant will not make any contact with any<br />
of the witnesses or any member of the UNLF during<br />
the period he is on bail.<br />
(vi) The appellant will report to the Police Station,<br />
Imphal, everyday and will not leave Imphal without<br />
prior permission of the Chief Judicial Magistrate,<br />
Imphal. The CJM, Imphal, will grant such permission<br />
for enabling the appellant to appear before the<br />
<strong>Court</strong> at Guwahati in connection with the pending<br />
prosecution or in any other eventuality in which it<br />
may be considered necessary and proper.<br />
JUDGE CHIEF JUSTICE<br />
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