1
BA-1063
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL BAIL APPLICATION NO. 1063 OF 2012
RAVI DHIREN GHOSH .. APPLICANT
VERSUS
THE STATE OF MAHARASHTRA... RESPONDENT
Ms. Apeksha Vora, Advocate appointed for the applicant
Ms. Rohini Salian, Spl. PP with Ms. R. V. Newton, APP for the
NIA/State.
CORAM:-ABHAY M. THIPSAY, J.
DATED : 29/10/2012 P.C.
This application for bail was sent by the applicant, from jail. The registry was, therefore, directed to provide legal aid to the applicant for prosecuting the application. Accordingly Ms. Apeksha Vora, advocate has been appointed under the free legal aid scheme, to prosecute the application.
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2. Heard Ms. Apeksha Vora, learned advocate for the applicant. Heard Ms. Salian, learned Spl. Public Prosecutor for the National Investigation Agency.
3. The applicant is the accused No. 1 in Sessions Case No. 674 of 2009.
4. Apart from the applicant, there are six others, who are also accused in the said case. One of them - accused No. 7 - is said to be absconding.
5. The case against the applicant and the others is in respect of offences punishable u/ss. 120-B, 489A, 489B,489C,489E of the IPC and of offences punishable u/ss.15,16,17 and 18 of the Unlawful Activities (Prevention) Act, 1967, as amended by Act No. 35 of 2008.
6. The case was initially registered by the Anti Terrorism Squad (ATS) vide their C.R. No. 7/2009 but the investigation thereafter was taken over by the National Investigation Agency (NIA).
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7. The applicant was arrested on 14/5/2009. He is in custody since then. The trial has not yet commenced. Even charge has not been framed as yet.
8. The facts of the prosecution case, as revealed from the FIR and the other materials in the charge-sheet are, that on secret information received by ATS, a watch was kept near Star Cinema, Mazgaon. The secret information was to the effect that two persons by name Ruby and Nooruddin were to gather on 14/5/2009 at about 0.30 hrs. near Star Cinema, Nesbit Road, Mazgaon and were to handover counterfeit Indian Currency Notes to their associates by name Mohammed Samad and Mohammed Aijul, for circulating the same in the market. On receipt of this information, watch was kept by the officers of ATS near the Star Theatre. At about 13-45 hrs. Two persons Ruby (stated to be the present applicant) and Nooruddin came there. After sometime, two other persons i.e. Mohammed Samad and Mohammed Aijul, accused Nos. 3 and 4 3/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 4 BA-1063 respectively, came there. It is thereafter that the Police Party surrounded the said four persons and took their search in the presence of Panchas. 345 counterfeit currency notes were recovered from the personal search of the applicant and the others. So far as the applicant is concerned, 200 counterfeit currency notes of 1000 denominations were recovered from him. On examination of those notes, they were found to be counterfeit. They were taken charge of in the presence of panchas and the applicant and the others were placed under arrest.
9. In the course of investigation, a committee of experts was formed on the request of NIA for the examination of the said notes and it was opined by the said committee that the counterfeit currency notes in question were printed in some other foreign country.
10. Apparently, it is thereafter that the accusation of offence under the Unlawful Activities (Prevention) Act was levelled 4/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 5 BA-1063 against the applicant and the other accused.
11. The learned Spl. Public Prosecutor contended that in view of the application of the provisions of the Unlawful Activities (Prevention), Act (hereinafter "the UAP Act" for brevity) the applicant and the other accused were not entitled to be released on bail. She drew my attention to the provisions of Section 43D of the UAP Act and submitted that the said section curtails the discretionary powers of this court in the matter of grant of bail to a large extent.
12. According to Smt. Salian, the learned Spl. Public Prosecutor, the act attributed to the applicant (and other accused) amounts to a 'Terrorist Act'. She read the provisions of Section 15 of the UAP Act and submitted that the case against the applicant was covered by the definition of a 'Terrorist Act' as given in the said section. It would be convenient to reproduce the said section here.
"15. Terrorist Act. 5/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 6BA-1063 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 or any section of the people in India or in any foreign country, -
(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause -
(i) death of, or injuries to, any 6/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 7 BA-1063 person or persons, or (ii) loss of, or damages to, or destruction of property, or (iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country, or (iv) damages or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies, or (b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of 7/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 8 BA-1063
any public functionary or attempts to cause death of any public functionary;
or
© 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 India,any State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act.
The emphasis of Smt. Salian is on the phrase "by any other means of whatever nature" occurring in clause (a) of the said section.
13. It is not possible to accept the submission of the learned Spl. Public Prosecutor. It is clear that the phrase "by any other 8/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 9 BA-1063 means of whatever nature" has to be read as ejusdem generis along with the other means mentioned in Clause (a) i.e. by using bombs, dynamite, or other explosive substances, fire arms, lethal weapons etc. Moreoever apart from this, the sub-
clauses (I),(ii),(iii) and (iv) clearly indicate that the use of bombs, dynamite, explosives or any other substance, has to be for the purpose of causing something that has been mentioned in one or more of the said sub-clauses. It is not possible to accept that possession and circulation of counterfeit Indian currency notes,, even, if such currency notes have been printed in some other foreign country, would amount to any Terrorist Act, as defined in Section 15 of the UAP Act. Since I am dealing only with the question of bail, I do not wish to discuss all the relevant aspect of the matter in depth, though I have no doubt that the acts attributed to the applicant cannot be termed as a "Terrorist Act" as defined in Section 15 of the UAP Act and that, therefore, the provisions of the UAP Act cannot be 9/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 10 BA-1063 invoked for such acts.
14. Taking the material in the charge-sheet at its face value, it does appear that the applicant was found in possession of counterfeit Indian currency notes. It, however, cannot be overlooked even at this stage that the secret information on the basis of which trap was laid and the applicant and others were arrested, was not reduced to writing by the concerned officer.
There is no such claim in the FIR. No diary entry to that effect has been relied upon in the charge-sheet. The learned Spl.
Public Prosecutor was asked a specific question as to whether there is any record of having received such information, but she conceded that there was no such material available with the prosecution.
15. The claim that the notes have been printed in some other foreign country is based on a report submitted by a committee of experts. It is claimed that this report was filed along with the charge-sheet, but admittedly, no copies of this report were 10/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 11 BA-1063 being furnished to any of the accused along with the copy of the charge-sheet. A copy of this report has not been given even now, to the learned advocate for the applicant, who has been appointed to prosecute the bail application, on the ground of it being 'a secret and confidential document'. That the evidence that is intended to be adduced against an accused can be kept secret from him, is a shocking proposition. In the view that I am taking, it is not necessary to give any directions in that regard, regarding the furnishing of copies to the applicant or the other accused. The matter may be left to be decided by the trial court, in accordance with law.
16. Even if one proceeds on the basis that the counterfeit Indian currency notes are indeed printed in some other foreign country and that they are being brought or sent to India as a part of a larger conspiracy to ruin the Indian economy, whether the applicant can be connected with such a larger motive and whether he would be a part of such larger conspiracy, would be 11/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 12 BA-1063 the question, needing consideration. Admittedly, there is no material in the charge-sheet to indicate the same. There is no claim - much less anything to support the same that the applicant was 'himself concerned in importing such fake counterfeit Indian currency notes from a foreign country', or even that 'he knew that the counterfeit currency notes in question had been printed in some other neighbouring country and was being brought to India, as a part of a larger conspiracy'.
17. It may be recalled that the applicant is in custody since 15/5/2009 i.e. for a period of more than three and a half years.
The trial has not yet commenced. The question is whether, under these circumstances, the applicant's prayer for bail should be refused.
18. In my opinion, the procedure which permits the detention of an undertrial prisoner for such a long time without proceeding with the trial and without any prospects of the trial 12/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 13 BA-1063 being expeditiously held and disposed of, cannot be said to be fair, just or reasonable. Such a procedure offends the provisions of Article 21 of the Constitution.
19. When this aspect of the matter was discussed, the learned Spl. Public Prosecutor submitted that she would endeavour to ensure that the trial would get over within a period of six months from today. However, this does not seem to be possible considering the number of witnesses cited in the charge-sheet i.e. about 46 witnesses and considering the volume of the evidence that would be adduced during the trial.
20. Since the provisions of the UAP Act, cannot, prima facie, be invoked in this case, and since the period of detention already undergone by the applicant in custody is so much, that further pre-trial detention of the applicant is totally unjustified and contrary to the notions of a just, fair and reasonable procedure, I am inclined to release the applicant on bail.
21. The application is allowed.
13/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 14BA-1063 The applicant is ordered to be released on bail in the sum of Rs.75,000/- with one surety in the like amount, or three sureties in the sum of Rs.25,000/- each on the condition that the applicant shall report to the ATS office on every alternate day i.e. on Monday, Wednesday and Friday, till the disposal of the case against him.
On oral prayer of the learned Spl. Public Prosecutor, it is directed that the operation of this order shall be stayed for a period of three weeks from today, for enabling the State to move the Supreme Court of India, challenging this order.
It is made clear that this shall not prevent the applicant from making and getting the surety application/applications processed, though the applicant may not be actually released from prison before a period of three weeks from today.
The stay on the operation of this order shall not be construed by the trial court or by any of the parties as a stay on the trial proceedings and it is made clear that this stay shall not 14/15 ::: Downloaded on - 06/01/2014 03:11:35 ::: 15 BA-1063 be an impediment or prohibition for proceeding further with the trial, which is already delayed.
(ABHAY M. THIPSAY, J.) md.saleem 15/15 ::: Downloaded on - 06/01/2014 03:11:35 :::