J. Kaleel Rahman vs The State Of Maharashtra
2021 Latest Caselaw 11619 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 118 OF 2021
J. Kaleel Rahman
Indian Inhabitant, Age : 39 years,
Residing at No.4/2, Portughese Church,
3rd Lane, Sewen, Chennai - 600001,                .... Appellant/
(Presently lodged at Taloja Jail)                 Accused No.3
Versus
The State of Maharashtra,
Through National Investigation Agency,
Police Station, Mumbai.                           ....Respondent
                                ****
Ms. Laxmi Raman for appellant.
Smt. A.S. Pai, Special Counsel for NIA.
Mrs.S.D. Shinde, APP for State.

                                      ****

                         CORAM : S. S. SHINDE &
                                   N.J. JAMADAR, JJ.
                         Reserved for Judgment on : 23rd June 2021.
                         Judgment Pronounced on : 24th August 2021.

JUDGMENT (PER N.J. JAMADAR, J.)

1. This appeal under section 21 of the National Investigation

Agency Act, 2008 ('NIA Act') assails the legality, propriety and

correctness of an order dated 15 th October 2020 in Bail Application

No.981 of 2020 in Special Case No.763 of 2020, whereby the

application of the appellant-accused No.3 to enlarge him on bail,

came to be dismissed.

Shraddha Talekar PS





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2. The background facts leading to this appeal, can be stated in

brief, as under :-

(a) The indictment against accused No.3 is that

he entered into a criminal conspiracy with Danish

Petiwala (accused No.1), Sarasvati @ Muskan

(accused No.2) and Amir Mirza @ Rafi Shaikh, a

wanted accused (WA), based in Malaysia, to

smuggle Fake Indian Currency Notes (FICN) from

Malaysia by using banking channel as well as

postal services to damage monetary stability of

India. The prosecution alleges that in furtherance

of their common intention, accused No.1 and

accused No.2 deposited genuine currency notes of

Rs.45,000/- in the account of accused No.3

maintained with Lokhandwala Branch of ICICI

Bank on 20th January 2020, on the instructions of

Amir Mirza (WA) towards the cost of FICN of the

face value of Rs.1,00,000/-. On the day of the said

deposit, accused No.3 was in Malaysia. Accused

No.3 few back to India on 21 st January 2020. On

22nd January 2020, he withdrew an amount of

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Rs.50,000/-, in three tranches, from the aforesaid

account. The parcel containing the FICN allegedly

reached Mumbai on 7th February 2020.

(b) In the intervening period, based on the

secret information, Customs Department recovered

FICN of 2000 denomination bearing Serial No.7KH-

405578 from Hotel Aadya International, Andheri,

Mumbai, where accused No.1 and accused No.2

had lodged themselves. Accused No.1 and accused

No.2 were arrested. Crime was registered at C.R.

No.60/2020 for the offences punishable under

sections 120B, 489A and 489B, read with 34 of

the Indian Penal Code, 1860 ('the Penal Code')

against accused No.1, accused No.2 and Amir

Mirza (WA).

(c) Upon examination, Currency Notes Press,

Nashik Road opined that the Suspected Forged

Indian Currency seized at Hotel Aadiya

International is a High Quality Counterfeit Note. A

Look Out Notice was issued against accused No.3,

who had travelled to Malaysia again on 8 th

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February 2020. On 27th February 2020, on his

arrival at Chennai Air Port, accused No.3 was

apprehended and brought to Mumbai. Eventually,

the investigation came to be entrusted to National

Investigation Agency ('NIA'). Crime was re-

registered at RC-04/2020/NIA/Mumbai on 27 th

March 2020. Accused No.3 came to be arrested on

8th April 2020 and arraigned for the offences

punishable under sections 120B and 489B read

with 34 of the Penal Code and, section 16 read

with sections 15(1)(a)(iii-a) and 18 of Unlawful

Activities (Prevention) Act, 1967 ('UAPA').

(d) Accused No.3 preferred application for

release on bail. The substance of the application

before the learned Special Judge, NIA Court was

that there was no material to indicate that the

accused No.3 was a co-conspirator with the

arrested accused and Amir Mirza (WA). In fact,

there was nothing to indicate that accused No.3

had even known Amir Mirza (WA), who had

allegedly dispatched FICN from Malaysia. Nor the

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accused No.3 had known accused No.1 and

accused No.2, who had allegedly deposited the

amount of Rs.45,000/- in his account. Mere

deposit of the said amount of of Rs.45,000/- and

withdrawal of the amount, even if taken at par,

according to accused No.3, would not be suffcient

to implicate him as a co-conspirator.

(f) The learned Special Judge was not

persuaded to accede to the submission on behalf of

accused No.3. Taking into account, the statement

of accused No.3, recorded under section 108 of the

Customs Act, 1962, wherein accused No.3 had

admitted in clear and explicit terms that the

amount of Rs.45,000/- was deposited in his

account and he had withdrawn Rs.50,000/- on

22nd January 2020 and, yet, the accused no.3 had

feigned ignorance about the person who deposited

the said amount, the learned Special Judge

inferred that there was reiuisite knowledge on the

part of accused No.3 so as to make him a co-

conspirator in the conspiracy hatched by the co-

Shraddha Talekar PS





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accused and WA to smuggle FICN into India.

Having found that there was material which prima-

facie rendered the accusation against accused No.3

true, the learned Special Judge opined that the

interdict contained in section 43D(5) of UAPA came

into play and, thus, the accused was not entitled to

be enlarged on bail.

(g) Being aggrieved by and dissatisfed with the

impugned order, the accused No.3 is in appeal.

3. Admit. Taken up for fnal disposal.

4. We have heard Ms.Laxmi Raman, the learned counsel for the

appellant and Smt. Pai, the learned Special Counsel for the NIA, at

length. With the assistance of the learned counsels for the parties,

we have also perused the material on record including the report

under section 173 of the Code of Criminal Procedure, 1973 ('the

Code') and its accompaniments.

5. At the outset, in the context of the alleged complicity of

accused No.3, it is necessary to note that the following facts are

rather uncontroverted :

(i) An amount of Rs.45,000/- was deposited in the account,

bearing No. 412105500010 of accused No.3 on 20 th January

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2020.

(ii) Secondly, the extract of the said account indisputably

reveals that accused No.3 withdrew an amount of

Rs.50,000/-, in three tranches, from an ATM.

(iii) Thirdly, in his statement, recorded on 28 th February

2020 by the Customs Authority, accused No.3 confrmed that

the sum of Rs.45,000/- was deposited in his account on 20 th

January 2020. Accused No.3, however, stated that he was

unaware as to who had deposited the said amount and where

the cash amount withdrawn by him had been used.

(iv) Fourthly, there is not much controversy over the fact

that accused No.3 few back to India from Malaysia on 21 st

January 2020 and again travelled to Malaysia on 8th February

2020. On return journey, the accused no.3 came to be

apprehend on 27th February 2020 by the Customs Authority.

6. In the backdrop of the aforesaid uncontroverted facts, the

submissions canvassed by Ms. Raman and Smt. Pai fall for

consideration.

7. Ms. Raman, the learned counsel for the appellant would urge

that there is no prima-facie material to establish the nexus of the

appellant with either co-accused i.e. accused No.1, accused No.2 or

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Amir Mirza (WA). Amplifying the submission, Ms. Raman submitted

that the prosecution case is based on surmises and conjectures.

Ms.Raman urged with a degree of vehemence that there is no

accusation against the appellant that he had transported or used

FICN. At best, the charge is of being a conduit. The deposit of the

amount of Rs.45,000/- and withdrawal of the sum of Rs.50,000/-,

within a couple of days of the said deposit, if considered in the

entire setting of the matter, does not incriminate the appellant even

remotely, submitted Mr. Raman.

8. To bolster up this submission, attention of the Court was

invited to the fact that the appellant had booked the ticket for

return journey dated 21st January 2020, on 3rd January 2020 itself.

Similarly, for fying back to Malaysia from Chennai on 8 th February

2020, the appellant had booked the ticket on 27 th January 2020

itself. Thus, there was no casual connection between the alleged

deposit of the amount of Rs.45,000/- in the account of the

appellant on 20th January 2020, the arrival of the appellant in

India on 21st January 2020, on the one hand, and the arrival of the

parcel allegedly containing FICN in India on 7 th February 2020 and

the appellant's departure to Malaysia on 8 th February 2020, on the

other hand.

Shraddha Talekar PS





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9. Ms.Raman strenuously submitted that there is no material to

impute any knowledge of the commission of illegal act by the co-

accused and wanted accused to the appellant. From the perusal of

the statement of account of the appellant, according to Ms.Raman,

it becomes evident that there were multiple transactions evidencing

deposit of various amounts into, and withdrawal from, the account

of the appellant. Even if it is assumed that there was some

illegality in the fnancial transactions, refected in the said account,

the said fact, in the absence of any positive material to establish

the nexus between the appellant and the co-accused, is not

suffcient to bring the act within the dragnet of the criminal

conspiracy and, conseiuently, for the offences for which the

appellant has been arraigned. Mere knowledge that some illegal act

is being committed by the co-accused is not suffcient, urged Mr.

Raman.

10. To lend support to the aforesaid submissions, Ms. Raman

placed a strong reliance on the judgment of a learned Single Judge

of this Court in the case of Javed Ahmed Abdul Majeed Ansari Vs.

State of Maharashtra 1.

11. Per contra, Smt. Pai, the learned Special Counsel for NIA,

1 2014 All M.R. (Cri.) 4934

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stoutly submitted that the material on record unmistakably

indicates the complicity of the appellant. Not only the appellant has

conceded that the amount of Rs.45,000/- was deposited in his

account but there is a statement of the co-accused (Danish-

accused No.1), recorded under section 108 of the Customs Act,

which clearly indicates that, at the instance of Amir (WA), the

accused No.2 had deposited the said amount in the account of the

appellant. In the absence of any explanation as to the

circumstances in, and the purpose for, which the said amount

came to be deposited in the account of the appellant, there is no

escape from the inference that the appellant was also a co-

conspirator. Multiple visits to Malaysia and the multiple

transactions, when the appellant claimed to be working at Malaysia

as a salesman to earn livelihood, are reiuired to be considered in

the said backdrop. Viewed as a whole, there is material which

renders the accusation against the appellant prima-facie true and,

thus, the interdict contained in section 43D(5) of the UAPA comes

into play with full force and rigour and disentitles the appellant

from claiming the relief of bail, submitted Smt. Pai.

12. In order to lend support to the aforesaid submission, Smt.

Pai placed a very strong reliance on the judgment of the Supreme

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Court in the case of National Investigation Agency Vs. Zahoor

Ahmad Shah Watali 2.

13. We have given our anxious consideration to the rival

submissions. In the backdrop of the facts of the case, as they

emerge from the record, adverted to above, the pivotal iuestion

which wrenches to the fore is whether there is prima-facie material

to implicate the appellant as a co-conspirator in the alleged

conspiracy of smuggling FICN into India? The thrust of the

submission on behalf of the appellant was that even if it is

assumed that the amount was deposited and withdrawn from the

account of the appellant, the element of mens rea is conspicuous

by its absence and, therefore, the appellant cannot be designated

as a co-conspirator, even prima-facie.

14. To appreciate this submission, the true nature and import of

the offence of criminal conspiracy is reiuired to be considered. It is

trite that conspiracy to commit an offence is by itself a substantive

offence and entails punishment. Every individual offence

committed in pursuance of such conspiracy is separate and

distinct offence for which the offenders are liable to be punished,

independent of the offence of conspiracy. It is eiually well

recognised that the conspiracy is hatched in secrecy. The 2 (2019) 5 SCC 1

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prosecution is not necessarily obliged to establish that the

conspirators expressly agreed to do or cause to be done the illegal

act. The agreement may be proved by necessary implication and

inferred from the act, conduct and attendant circumstances.

15. The principles governing the law of conspiracy were

expounded by the Supreme Court in the case of State through

Superintendent of Police, CBI/SIT Vs. Nalini and Ors. 3

16. We are afraid to accede to the broad submission on behalf of

the appellant that there should be a direct nexus between all the

co-conspirators. The law recognizes that there can be a general

conspiracy and separate conspiracies wherein a group of persons

act together in furtherance and execute a part of the general

conspiracy. In such cases, the doctrine of plurality of means in

execution of a larger and general conspiracy is resorted to.

17. A proftable reference in this context can be made to a

judgment of the Supreme Court in the case of Ajay Agarwal Vs.

Union of India & Ors.4, wherein the Supreme Court expounded

several or different models or techniiues to broach the scope of

conspiracy. One of the model was that of a chain, where each party

performs even without knowledge of other, a role that aids

3 (1999) 5 SCC 253 4 (1993) 3 SCC 609

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succeeding parties in accomplishing the criminal objectives of the

conspiracy. The Supreme Court gave the illustration of procuring

and distributing narcotics or an illegal foreign drug for sale in

different parts in which confederates in the general conspiracy

execute their respective parts in the larger conspiracy. The

observations of the Supreme Court in paragraph No. 24 are

instructive and thus extracted below :

"24 ............Thus, an agreement between two or more persons to do an illegal act or legal acts by illegal means is criminal conspiracy. If the agreement is not an agreement to commit an offence, it does not amount to conspiracy unless it is followed up by an overt act done by one or more persons in furtherance of the agreement. The offence is complete as soon as there is meeting of minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means. Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into. It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy. Each act constitutes separate offence punishable, independent of the conspiracy. The law had developed several or different models or techniiues to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. An illustration, of a single conspiracy, its parts bound together as links in a chain, is the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics.

The smugglers knew that the middlemen must sell to retailers-, and the retailers knew that the middlemen must buy of importers of someone or another. Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers, and those at the other end knew that it had not begun with their settlers. The accused embarked

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upon a venture in all parts of which each was a participant and an abettor in the sense that, the success of the part with which he was immediately concerned, was dependent upon the success of the whole. It should also be considered as a spoke in the hub. There is a rim to bind all the spokes to gather in a single conspiracy. It is not material that a rim is found only when there is proof that each spoke was aware of one another's existence but that all promoted in furtherance of some single illegal objective. The traditional concept of single agreement can also accommodate the situation where a well defned group conspires to commit multiple crimes so long as all these crimes are the objects of the same agreement or continuous conspiratorial relationship, and the conspiracy continues to subsist though it was entered in the frst instance.................t (emphasis supplied)

18. The aforesaid pronouncement was followed with approval by

a three Judge Bench of the Supreme Court in the case of State of

Maharashtra & Ors. Vs. Som Nath Thapa and Ors. 5. In the said

case, (Bombay bomb blasts), the Supreme Court held that, it would

not be necessary to establish that the accused knew that the RDX

and/or bomb was/were meant to be used for bomb blast at

Bombay, so long as they knew that the material would be used for

bomb blast in any part of the country. The Supreme Court

adverted to the principle of plurality of means. The observations of

the Supreme Court in paragraphs 22 to 24 illuminatingly postulate

the legal position :

"22. As in the present case the bomb blast was a result of chain of actions, it is contended on behalf of the prosecution, on the strength of this Court's decision in Yash Pal Mittal vs. State of Punjab 1977 (4)

5 (1996) 4 SCC 659

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SCC 540, which was noted in para 9 of Ajay Aggarwal's case that of such a situation there may be division of performances by plurality of means sometimes even unknown to one another; and in achieving the goal several offences may be committed by the conspirators even unknown to the committed. All that is relevant is that all means adopted and illegal acts done must be and purported to be in furtherance of the object of the conspiracy, even though there may be sometimes misfre or over-shooting by some of the conspirators.

23. Our attention is pointedly invited by Shri Tulsi to what was stated in para 24 of Ajay Aggarwal's case wherein Ramaswamy, J. stated that the law has developed several or different models or techniiue to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of the other, a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. The illustration given was what is done in the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the globe. In such a case, smugglers. Middleman privies to a single conspiracy to smuggle and distribute narcotics. The smugglers know that the middlemen must sell to retailers and the retailers know that the middlemen must buy from importers. Thus the conspirators at one end at the chain know that the unlawful business would not, and could not, stop with their buyers, and those at the other end know that it had not begun with settlers. The action of each has to be considered as a spoke in the hub - there being a rim to bind all the spokes together in a single conspiracy.

24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in iuestion may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in iuestion could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. When can charge be framed ?t

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(emphasis supplied)

19. Thus, the Supreme Court has exposited in clear and explicit

terms that when the ultimate offence consists of a chain of actions,

it would not be necessary for the prosecution to establish, to bring

home the charge of conspiracy, that each of the conspirators had

the knowledge of what the collaborator would do, so long as it is

known that the collaborator would put the goods or service to an

unlawful use.

20. We are mindful of the fact that the aforesaid pronouncement

was rendered in the backdrop of the nature of the goods, i.e. RDX/

bombs. The goods or services which are per se capable of being put

to an unlawful use, obviously stand on a different footing. It will be

easy to impute intent from the knowledge of the accused where the

goods or services fall in such category that they can be put to

unlawful use like narcotic drugs, arms and ammunition. In the

instant case, the Court is confronted with the iuestion of deposit

of an amount in the account of the appellant by the co-accused

and called upon to consider whether there is prima-facie material

to infer the reiuisite 'guilty' intent.

21. The attendant circumstances and statements of the appellant

and the co-accused Danish (A1) recorded by the Customs

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Authority provide a legitimate prima-facie answer. Accused No.1

claimed that he had solicited money from the Amir (WA) and

thereupon (WA) offered him to forward FICN in consideration of

genuine currency notes of half the denominational value of forged

currency notes. Accused No.1 claimed to have deposited the

amount of Rs.45,000/- in the account of the appellant on the

instructions of the WA. As indicated above, there is no dispute

about the deposit of the amount of Rs.45,000/- and withdrawal of

the sum of Rs.50,000/-, within a couple of days, by the appellant.

Indeed, the appellant feigned ignorance about the identity of the

person who deposited the said amount of Rs.45,000/- in his

account, though the intimation about the said deposit was not

disputed.

22. The situation which thus obtains is that there is evidence to

indicate that amount was deposited in the account of the appellant

by the co-accused Danish, accused No.1, who, in turn, allegedly

received FICN dispatched from Malaysia. Those forged currency

notes were circulated by Danish, accused No.1. A FICN, circulated

by Accused No.1, was seized. Upon inspection, it was found to be a

High Quality Counterfeit Note.

23. At this juncture, had the appellant offered a plausible

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explanation as to the identity of the person who deposited the said

amount and its purpose, the nature of the act, i.e. credit of the

amount, which is not per se objectionable, would have eroded the

potency of the accusation. When confronted with multiple

transactions in the said account, the appellant offered an

explanation that those amounts were deposited in his account by

persons, at the instructions of one Mr.Azam based in Malaysia, and

he withdrew those amounts in cash and passed/transferred the

same to different persons as directed by the said Mr. Azam and

earned commission. An endeavour was thus made to explain away

the transactions as being one of money laundering (hawala)

nature.

24. In contrast, the appellant claimed that he was working as a

Salesman in a shop at Malaysia on daily wage basis for livelihood.

In the backdrop of the situation in life of the appellant, the

appellant, the sum of Rs.45,000/-, cannot be said to be so small

an amount as not to arouse iniuisitiveness on the part of the

appellant about the source of credit. Mere feigning ignorance, in

the aforesaid circumstances, is not, therefore, suffcient to indicate

that the accusation against the appellant is not prima-facie true.

25. At this juncture, a useful reference can be made to the

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observations of the Supreme Court in the case of National

Investigation Agency Vs. Zahoor Ahmad Shah Watali (Supra),

wherein the nature and import of the proviso of sub-section (5) of

section 43D of the UAPA Act expounded :

"23 By virtue of the proviso to subsection (5), it is the duty of the Court to be satisfed that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise.

Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is reiuired to record its opinion that there are reasonable grounds for believing that the accused is "not guiltyt of the alleged offence. There is degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guiltyt of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima faciet true. By its very nature, the expression "prima facie truet would mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the frst information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and suffcient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie truet, as compared to the opinion of accused "not guiltyt of such offence as reiuired under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of

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satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act.t

26. The reliance placed on behalf of the appellant on the

judgment in the case of Javed Ahmed Abdul Majeed Ansari (Supra)

does not advance the cause of the appellant. In the said case, the

accusation against the applicant was that he had played a role in

shifting fve boxes containing arms and explosives from the Tata

Indica Car and had abetted the illegal activities of the co-accused.

On an analysis, the learned Single Judge found that there was no

material to attribute the reiuisite knowledge to the applicant

therein. The observations in paragraph Nos. 30 and 31 make the

position explicitly clear :

30 The restrictive provision under Section 43D of the UAP Act with respect to the grant of bail is not similar to the one contained in the M.C.O.C. Act, and has been worded differently. It contemplates that a person accused of having committed an offence punishable under Chapter IV and Chapter VI of the UAP Act shall not be released on bail if there are reasonable grounds for believing that the accusation against such person is prima facie true. Perhaps, this phrase puts a greater restriction on the powers of the court than is put by the aforesaid provisions of the M.C.O.C. Act. However, inspite of the difference in the phraseology, there would be no basic difference in the practical application of these provisions. All that the se provisions lay down is that a person arrested on the accusation of having committed the offence contemplated by the said provisions should not be released on bail, if there would be a prima facie case of such offence against him. If a rational and reasonable doubt is felt in that regard, then the court would not be precluded from granting bail.

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30. In this case, there is no material to indicate that the applicant was a conspirator in respect of the conspiracy which is the subject matter of the present case, viz of procuring arms, ammunitions and explosives in a huge iuantity, transporting them and using them for creating terrorists acts by killing some political leaders., etc. There is absolutely no material to show that the applicant had agreed to commit any such acts. In fact, if the statements made in the chargesheet, the affdavit in reply fled by the Investigating Offcer, and the Brief synopsis of the prosecution case submitted in writing by the learned Special Public Prosecutor, are carefully examined, it becomes clear that the prosecution has avoided - and rightly so -to make a claim that the applicant was one of the conspirators in respect of the aforesaid conspiracy. It may be recalled that the allegations against the applicant are worded rather guardedly - such as - that the applicant had played an active role in attempting to conceal the Car in his warehouse. That,he had done so with the knowledge that he was furthering an illegal act and that he had abetted illegal activities of the co accused , etc. It is true that there is material to indicate that the applicant had agreed to do some illegal acts, but that would not make him conspirator in respect of the main conspiracy. At the most, it can be said that the applicant knowingly handled arms and ammunitions, but in that case, the crime committed by him would be of a different degree of criminality.t

27. In the case at hand, the material prima-facie does not appear

to be such that the appellant could extricate himself on the

premise that though he had the knowledge that the amount of

Rs.45,000/- was deposited in his account yet he was not aware of

the purpose for which the said amount was deposited. At the cost

of repetition, it needs to be recorded that the appellant had the

opportunity, at the very initial stage, to explain the purpose for

which the said amount was deposited. No such explanation was

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forthcoming, even when the bail application was considered by the

learned Special Judge, NIA Court.

28. For the foregoing reasons, we are persuaded to hold that the

interdict contained in section 43D(5) of UAPA operates with full

force and vigour. In the circumstances, no fault can be found with

the view of the learned Special Judge that the bar under section

43D(5) of UAPA came into operation. Resultantly, no interference is

warranted in the impugned order.

29. Hence, the following order :

ORDER

The appeal stands dismissed.

We, however, clarify that the consideration is

confned to entitlement for bail and the NIA Court shall

not be infuenced by any of the observations made in the

further proceedings of the trial.

[ N.J. JAMADAR, J. ]                             [ S.S. SHINDE, J.]




Shraddha Talekar PS