Bombay High Court
Praful S/O. Dewanand Bhat And Another vs The State Of Mah. Thr. Pso, Sub Ps, ... on 12 January, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:413-DB
Judgment apeal631.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 631/2023.
1.Praful s/o Dewanand Bhat,
Aged about 28 years, Occupation -
Contractual Ambulance Driver,
PHC Kamlapur.
(Accused No.6)
2.Anil s/o Gokuldas Bhat,
Aged about 28 years, Occupation -
Contractual Ambulance Driver,
PHC Kamlapur.
(Accused No.7)
Both residents of Kamlapur,
Taluq Aheri, District Gadchiroli.
(Presently in the Central Jail,
Nagpur.) ... APPELLANTS.
VERSUS
The State of Maharashtra,
through Police Station Officer,
Sub Police Station Repanpalli,
District Gadchiroli. ... RESPONDENT.
---------------------------------
Mr. M.G. Bhangde, Senior Advocate with Shri A.G. Baheti,
Advocate for Appellants.
Mr. J.Y. Ghurde, A.P.P. for Respondent/State.
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Rgd.
Judgment apeal631.23
2
CORAM : VINAY JOSHI AND
VRUSHALI V. JOSHI, JJ.
DATE : JANUARY 12, 2024.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard.
Admit. By consent of the learned Counsel present for the
parties, the appeal is taken up for final disposal.
2. By this appeal filed under Section 21[4] of the National
Investigation Agency Act, 2008, appellants/accused nos. 6 and 7
have called in question the impugned order dated 09.06.2023 passed
in Criminal Application No.16/2023 by the learned Additional
Sessions Judge, Gadchiroli by which the application for grant of bail
(Exh.4) came to be rejected.
3. Both appellants have been arrested on 28.07.2022 for the
offence punishable under Section 120[B] read with Section 34 of the
Indian Penal Code and Sections 10, 13, 18, 20 and 39 of the
Rgd.
Judgment apeal631.23
Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as
"the UAP Act" for short). After facing police custody, appellants have
been remanded to judicial custody. The investigation is completed
and charge sheet has been filed. Appellants [Praful and Anil] have
applied to the trial Court for grant of bail, however, the trial Court
declined to exercise the discretion by expressing that a prima facie
case is made out for invoking the provisions of UAP Act. While
considering the claim of appellants for grant of bail, the trial Court
has also considered the rigor of Section 43(D)(5) of the UAP Act,
and ultimately declined to grant bail.
4. The learned Senior Counsel appearing on behalf of
appellants while claiming bail seriously criticized the impugned
order by stating that the observations made by the trial Court in
paragraph no.9 of the order are factually incorrect. He would submit
that there exists no material, nor there are reasonable grounds for
believing that the accusation against appellants are prima facie made
out. It is emphasized that the main allegations are against co-
accused Pawankumar, from whom the incriminating material has
been seized. Though mobile handset of appellants came to be
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Judgment apeal631.23
seized, however, no incriminating material was traced. There is no
disclosure at the hands of appellants. The disclosure statement of
co-accused Pawankumar made under Section 27 of the Evidence Act
is not admissible are regards to appellants. In substance, he would
submit that the existing material is bereft to form an opinion about
existence of reasonable ground to believe the accusation and thus,
the statutory embargo would not apply.
5. The learned A.P.P. appearing on behalf of the respondent
State while defending the impugned order took us through the oral
report lodged by the informant on 28.07.2023. It has been
submitted that appellants had accompanied the main accused from
whom the incriminating material has been seized. Our attention has
been invited to the statements of Dr.Santosh Naitam and Santosh
Tatikondawar to establish the link of appellants. Moreover, we have
been taken through the disclosure statement of co-accused
Pawankumar bearing reference about the act of appellants.
6. It is prosecution case that while police were conducting
anti naxal operation they found the activities of appellants and co-
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Judgment apeal631.23
accused of suspicious nature. The police apprehended all three and
took personal search. During search naxal banners and pamphlets
were found, and therefore, the crime has been registered. During
investigation some more accused have been arrested. The first limp
of the prosecution rather is about seizure of incriminating material.
It is also prosecution case that during house search of both
appellants, two mobile handsets were seized which were concealed.
The defence counsel took us through both seizure panchnama
indicating that at the time of search the mobile phones were lying
nearby. Moreover, it is submitted that mobile handsets were even
not sent to forensic science laboratory. The learned A.P.P. conceded
the position that nothing incriminating was found from the seized
mobile handsets. Thus, the prosecution is unable to collect any
material from said quarter.
7. The learned Senior Counsel for appellants has drawn our
attention to the seizure memo [page no.156], disclosing that the
incriminating material has been seized particularly from the
possession of the co-accused Pawankumar. The learned A.P.P. is
unable to point out any other material so as to make out a case of
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Judgment apeal631.23
seizure from the possession of appellants. We have examined the
statement of Dr.Santosh Naitam. He has stated that the co-accused
Pawankumar used to supply medicines to the naxalists who are
members of banner organization i.e. Communist Party of India
(MOIST). He stated that some time while supplying medicines,
Pawankumar was using the ambulance which was driven by both
appellants, who are drivers. Another statement of Santosh
Tatikondawar shows that the co-accused Pawankumar was supplying
medicines and some time they were supplied through ambulance
driver Bhat. Besides that nothing is pointed out by the learned A.P.P.
as regards to the role of appellants. Main accused Pawankumar
Uikey was employed in Primary Health Centre, Kamlapur. Both
appellants are drivers appointed on contract basis on the ambulance.
Having regard to the said fact mere association with Pawankumar
cannot be construed as an association with the members of terrorists
organization. Prima facie it is to be established that their
association was with an intention to further the terrorist activities.
The learned A.P.P. took us through the disclosure statement of co-
accused Pawankumar to contend about the role of appellants.
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Judgment apeal631.23
However, we are unable to consider the same as an incriminating
material due to statutory bar created under Section 25 of the
Evidence Act.
8. The learned Senior Counsel for appellants has relied on
the decisions of Supreme Court in cases of (1) Sudesh Kedia .vrs.
Union of India - [2021] 4 SCC 702, (2) Vernon .vrs. The State of
Maharashtra - 2023 [10] Scale 312 and (3) Yedala Subba Rao and
another .vrs. Union of India - [2023] 6 SCC 65 to contend that in
absence of prima facie material the embargo on grant of bail under
provisions of Section 43[D][5] will not apply. Though it is
contended that appellants are members of a terrorist gang or
organization, the prosecution is unable to point out any material to
that extent. There is no evidence to show that either appellants
possessed any material or had any association with the terrorist
organization. We have carefully examined the entire material relied
by the prosecution, as well as the record. Even if accepting the
material against appellants, it is not possible to form an opinion that
there are reasonable ground for believing that the accusation made
against appellants to constitute the offence under UAP Act are prima
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Judgment apeal631.23
facie true. In consequence, the statutory fetter imposed under
Section 43[D][5] would not apply. In the result, the impugned order
needs to be quashed and set aside. We deem it appropriate that the
trial Court would be in a better position to suitably impose the
conditions for grant of bail considering the facts and circumstances.
In view of that, we pass the following order.
ORDER
(i) Criminal Appeal is allowed and disposed of.
(ii) The impugned order dated 09.06.2023 passed below Exh.
4 in Criminal Application No.16/2023 by the learned
Additional Sessions Judge, Gadchiroli is hereby quashed
and set aside.
(iii) The trial Court is directed to forthwith pass appropriate
order of bail by imposing suitable conditions which it
deems fit.
JUDGE JUDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 12/01/2024 12:12:02
