Page No.# 1/6
GAHC010205082022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case : I.A.(Crl.)/37/2019
E. BOBO @ KHANGANBA
S/O- E. ENAOCHA SINGH
S/O- LATE DANABIR SINGH
HIYANGLAM MAYAL LEIKAI WARAKHANG
P.S.- KAKCHING
DIST.- THOUBAL
MANIPUR
VERSUS
THE NATIONAL INVESTIGATION AGENCY
THRUGH ITS STANDING COUNSEL
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Advocate for : MR. M G SINGH
Advocate for : SC
NIA appearing for THE NATIONAL INVESTIGATION AGENCY
BEFORE
HONOURABLE MR. JUSTICE SUMAN SHYAM
HONOURABLE MRS. JUSTICE MALASRI NANDI
ORDER
Date : 29-09-2022 Suman Shyam, J Page No.# 2/6 Heard Mr. D.K. Mishra, learned Sr. counsel assisted by Mr. B. Prasad, learned counsel for the appellants. Also heard Mr. R.K.D. Choudhury, learned DSGI appearing for the NIA.
By filing this I.A. under Section 389(2) of the Cr.P.C., 1973 the applicant herein has approached this Court seeking suspension of his jail sentence and for release on bail pending adjudication of the connected Crl. Appeal No. 253/2018.
By the judgment dated 25-06-2018 passed by the learned Special Judge, NIA, Assam at Guwahati in Special (NIA) Case No. 01/2014, the present applicant, i.e. E. Bobo (A-4), along with three others, viz.; N. Shanti Meitei (A-1), L. Inaocha Singh (A-2) and L. Jiten Singh (A-3) were convicted under Section 20 of Unlawful Activities (Prevention) Act, 1967 [UA(P)A] read with Section 120B of the IPC; under Section 10(a) read with Section 38 of the UA(P)A.
By the order dated 30-06-2018, the applicant was sentenced to undergo RI for 10 years and to pay fine of Rs. 10,000/- with default stipulation for committing offence under Section 20 of the UA(P)A; RI for 01 year and to pay fine of Rs. 3,000/- for committing the offence under Section 10(a) of the UA(P)A; RI for 05 years for committing the offence under Section 38 of the UA(P)A. All the sentences were to run concurrently.
Aggrieved by the impugned judgment dated 25-06-2018 the applicant as appellant has preferred Crl. Appeal No. 253/2018 which is pending disposal before this Court.
The instant application has been filed by invoking Section 389 of the Cr.P.C. as in the meantime the applicant has already undergone half of the maximum jail sentence Page No.# 3/6 awarded under Section 20 of UA(P)A read with 120B of the IPC for a period of 10 years. Insofar as the sentences awarded under the other Sections are concerned, the applicant has already served those jail sentences during the pendency of the connected appeal.
By referring to the statements made in the I.A. Mr. D.K. Mishra, learned Sr. counsel for the applicant submits that there is no dispute about the fact that the applicant has served more than half of the maximum punishment awarded to him. In view of the decision of the Hon'ble Supreme Court rendered in the case of Satender Kumar Antil Vs. CBI & Ors. reported in AIR 2022 SC 3386, Mr. Mishra submits that since the final hearing of the appeal is likely to take some more time, the present is a fit case where the applicant deserves to be released on bail. It is also the submission of Mr. Mishra that his client was earlier released on bail but he did not violate the terms and conditions of bail. The applicant had surrendered before the Court after the impugned judgment was passed.
On merit, Mr. Mishra has argued that the learned trial court had convicted the applicant under Section 20 of the UA(P)A on the alleged ground that he was a member of the terrorist organization called 'PREPAK'. However, in the charge-sheet itself the Investigating Agency has made it clear that the applicant was not a member of 'PREPAK' but a member of United People's Party of Kangleipak (UPPK), which is not a banned organization. Mr. Mishra submits that there is no notification under the provision of UA(P)A declaring the 'UPPK' as a terrorist organization or an un-lawful association nor is there any finding recorded by the learned trial court as regards involvement of the applicant in any terrorist activity. As such, the conviction of the applicant under Section 20 Page No.# 4/6 of the UA(P)A read with Section 120B of the IPC is unsustainable on the face of the record. On such ground the learned Sr. counsel has prayed for releasing the applicant on bail pending disposal of the connected appeal.
Mr. R.K.D. Choudhury, learned DSGI appearing for the respondent has submitted, in his usual fairness, that save and except the sentence imposed under Section 20 of the UA(P)A read with Section 120B of the IPC the applicant has already served the jail sentence in respect of his conviction under all the other penal provisions. Mr. Choudhury submits that he is not denying or disputing the fact that the applicant has already served more than 50% of the maximum sentence of 10 years awarded under Section 20 of the UA(P)A read with Section 120B of the IPC.
We have considered the submission made by the learned counsel for both the sides and have also gone through the materials available on record including the objection filed by the respondent. As noticed above, there is no dispute about the fact that the applicant has already served more than 50% of the maximum jail sentence of 10 years imprisonment. The applicant has been in jail for more than 05 years as on date. Insofar as the conviction and sentences awarded under the other provisions, it is the admitted position of fact that during the pendency of the appeal, the applicant has served the jail sentence in respect thereof.
In the case of Soudan Singh Vs. State of UP reported in 2021 SCC OnLine SC 3259, the Hon'ble Supreme Court has observed that in cases other than life sentences, the broader parameter of 50% actual sentence undergone can be the basis for grant of bail. In Satender Kr. Antil (Supra), the Supreme Court has observed that delay in Page No.# 5/6 taking up main appeal would be a factor and the benefit available under Section 436A would have to be considered. The Courts will have to see the relevant factors including the conviction rendered by the trial court. It has further been observed that the word 'trial' under Section 436A will have to be given an expanded meaning and in a case where an appeal is pending for a long time, to bring it under Section 436A, the period of incarceration in all forms will have to reckoned.
From a careful reading of the impugned judgment, we find that the learned trial court has not recorded any finding as regards the involvement of the applicant in any terrorist activities. Moreover, it is apparent on the face of the record that, even according to the prosecution, the applicant was a member of the 'UPPK' which is not a terrorist organization or an unlawful association notified within the provisions of UA(P)A and not 'PREPAK' which is a banned organization. If that be so, there is serious doubt in our minds as to whether the conviction of the applicant under Section 20 of the UA(P)A would ultimately be sustainable in the eye of law.
Be that as it may, the final hearing of the connected appeal may take some more time due to various intervening reasons. Taking note of the observations made by the Supreme Court in the case of Saudan Singh (Supra) and Satender Kr. Antil (Supra) we are of the view that a new ground has become available to the applicant as he has completed half of the maximum jail sentence.
For the reasons discussed hereinabove and having regard to the facts and circumstances of the case, we are of the view that the applicant has succeeded in making out a strong prima facie case so as to allow him to go on bail.
Page No.# 6/6 We, therefore, direct that the applicant, viz. Elangbam Bobo @ Khanganba be released on bail on furnishing a bond of Rs. 1,00,000/- (One Lakh) with two sureties of like amount to the satisfaction of the learned Special Judge, NIA, Assam at Guwahati.
It is made clear that the applicant would report to the Imphal (West) Police Station every 15 days, until such time, the pending appeal is disposed of.
Violation of the above conditions may lead to cancellation of the bail granted by this Court.
With the above observation, this I.A. stands disposed of.
JUDGE JUDGE GS Comparing Assistant