Chattisgarh High Court
Mukesh Salam vs State Of Chhattisgarh on 20 October, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No.445 of 2022
1. Mukesh Salam, aged about 30 years, S/o Ramcharan Salam, R/o
Vill. Kandadi, P.S. Koyalibeda, Tah. Pakhanjur, Distt. North Bastar
Kanker (C.G.)
2. Rajendra Salam, aged about 28 years, S/o Subesingh Salam, R/o
Vill. Marda, P.S. Koyalibeda, Tah. Pakhanjur, Distt. North Bastar
Kanker (C.G.)
3. Arun Thakur, aged about 41 years, S/o Prasanna Kumar Thakur,
R/o Vill. Koyalibeda, P.S. Koyalibeda, Tah. Pakhanjur, Distt. North
Bastar Kanker (C.G.)
(In Jail)
---- Appellants
Versus
State of Chhattisgarh, through P.S. Siksod, Distt. North Bastar
Kanker (C.G.)
---- Respondent
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For Appellants: Mr. Rakesh Kumar Thakur, Advocate.
For Respondent / State: -
Mr. Ashish Tiwari, Govt. Advocate.
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Hon'ble Shri Sanjay K. Agrawal and
Hon'ble Shri Deepak Kumar Tiwari, JJ.
Judgment on Board
(20/10/2022)
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 21(4) of the National
Investigation Agency Act, 2008 is directed against order dated 10-
2-2022 passed by the Special Judge (NIA Act), Kanker, District
North Bastar Kanker in Bail Application No.38/2022, by which the
appellants' application under Section 439 of the CrPC seeking bail
for offences under Sections 10, 13, 17, 38(1)(2), 40, 22-A & 22-C of
the Unlawful Activities Prevention Act, 1967 (for short, 'the UAPA');
Section 8(2)(3)(5) of the Chhattisgarh Vishesh Jan Surksha
Adhiniyam, 2005 (for short, 'the Act of 2005'); and Sections 120B,
201 & 149/34 of the IPC, has been rejected finding no merit.
2. Case of the prosecution, in brief, is that on 24-3-2020, on the basis
of secret information, the respondent searched a vehicle bearing
registration No.CG-07/AH-6555 driven by Tapas Kumar Palit. In
that search, 95 pairs of shoes, green black printed cloths for
uniform, 2 bundles of electric wires each of 100 meter, LED lens,
walki talki and other articles were found in his possession (Tapas
Kumar Palit). Seizure was made accordingly. It is the further case
of the prosecution that these articles were to be supplied by Tapas
Kumar Palit to naxalites in order to support their illegal and
disruptive activities. It is also the case of the prosecution that said
Tapas Kumar Palit was working with Rudransh Earth Movers Road
Construction Company, a partnership firm of Ajay Jain and Komal
Verma. It is also the case of the prosecution that Tapas Kumar
Palit provided information that articles were being provided on the
instructions/ consent of Ajay Jain and Komal Verma, who were
given consent/permission to do so by Varun Jain, Director of M/s
Landmark Royal Engineering (India) Private Limited. It is also the
case of the prosecution that the accused were providing funds as
well to naxalites though no cash was recovered on the said date,
but the police arrested all of them on 23.4.2020. It is also the case
of the prosecution that Ajay Jain and Komal Verma were working as
sub-contractors for road construction of PMGSY Road work
originally given to M/s Landmark Royal Engineering Private Limited.
FIR under Crime No.9/2020 was registered and they were charge-
sheeted for the aforesaid offences on 8-9-2020 and thereafter
charges have been framed on 5-8-2021 and out of 100 listed
witnesses, only 13 witnesses have been examined and seizure
witnesses namely Mantesh Dhruw and Rajesh Sahu have also
been examined.
3. Case against the present appellants is that appellant No.1 Mukesh
Salam is paternal uncle of Naxalite Commander Raju Salam and he
was in direct and constant touch with Raju Salam, who has been
alleged to be the main figure to whom all the materials and cash
were being supplied. Appellant No.1 always accompanied other
accused persons Tapas Kumar Palit and appellant No.3 Arun
Thakur for delivering the materials to Naxalite members. From the
possession of appellant No.1, a mobile phone has been recovered
bearing No.7587797686 and call details record of the said phone
has been produced. It is the case of the prosecution that appellant
No.2 Rajendra Salam was having close relationship with Tapas
Kumar Palit and had provided his tractor to Tapas Kumar Palit for
using it in road construction from Kotul board to Siksod and
appellant No.2 & Tapas Kumar Palit used to visit and meet Naxalite
Commander Raju Salam where Raju Salam used to give
instructions regarding supply of material and Tapas Kumar Palit has
purchased material and kept it with appellant No.2 which was later
handed over to appellant No.1. It is the further case of the
prosecution that on the date of incident i.e. on 24-3-2020,
appellants No.1 & 2 had a conversation and both of them were
waiting for Tapas Kumar Palit, however, on the same intervening
evening, Tapas Kumar Palit was arrested and from the possession
of appellant No.2, a mobile phone bearing No.7587003379, which
was used by appellant No.2 for connecting with appellant No.1 and
Tapas Kumar Palit, was seized. It is also the case of the
prosecution that appellant No.3 Arun Thakur used to regularly visit
and meet Naxalite Commander Raju Salam and used to supply
materials such as Walky Talky to Raju Saklam and he was in direct
and constant touch with Raju Salam and used to take instructions
regarding delivery of materials and he always accompanied Tapas
Kumar Palit & appellant No.1 herein for delivering materials to the
Naxalite members.
4. The appellants herein have filed application under Section 439 of
the CrPC for grant of bail before the Special Court under the NIA
Act, which has been rejected by the impugned order finding no
merit against which this criminal appeal has been filed.
5. Mr. Rakesh Kumar Thakur, learned counsel appearing for the
appellants, would submit that co-accused persons Ajay Jain,
Shailendra Bhadouriya & Komal Verma have been enlarged on bail
in Cr.A.Nos.328/2022 & 706/2022 by orders dated 4-5-2022 & 13-5-
2022, respectively, and allegation against the present appellants is
similar to that of co-accused Ajay Jain, Shailendra Bhadouriya &
Komal Verma. He would further submit that co-accused persons
Hitesh Agrawal & Varun Jain have been granted interim bail by the
Supreme Court by order dated 3-1-2022 passed in SLP (Crl.)
Nos.8147-8148/2021. He would also submit that 28 witnesses
have examined but none of them have supported the case of the
prosecution and trial is likely to take some time, therefore, the
appellants be released on bail.
6. Mr. Ashish Tiwari, learned State counsel, would submit that the
present appellants are directly involved and connected with the
main accused person - Naxalite Commander Raju Salam who is
still absconding and could not be arrested and case of the present
appellants is not identical to that of the co-accused persons who
have been enlarged on bail. He would further submit that if the
present appellants are enlarged on bail, there is grave possibility
that they would abscond and would not be traceable for facing the
trial. In that view of the matter, the present appeal deserves to be
dismissed. He would rely upon the decision of the Supreme Court
in the matter of National Investigation Agency v. Zahoor Ahmad
Shah Watali1 in support of his contention.
7. We have heard learned counsel appearing for the parties,
considered their rival submissions made herein-above and also
went through the records with utmost circumspection.
8. The main ground which has been sought to be urged in this appeal
preferred by the appellants is their case is identical with that of co-
accused Ajay Jain, Shailendra Bhadouriya & Komal Verma who
have been released on bail. Admittedly, they have been released
on bail by this Court by orders dated 4-5-2022 & 13-5-2022 passed
in Cr.A.Nos.328/2022 & 706/2022, respectively, finding prima facie
1 (2019) 5 SCC 1
case for grant of bail in light of the decisions of the Supreme Court
observing as under: -
"13. Reverting to the facts of the present case in the
light of aforesaid position, it is quite vivid that main
accusation against the appellant is that he was paid levy/
extortion money to naxalities for undertaking road
construction work in Kanker, whereas in Sudesh Kedia
(supra) their Lordships of the Supreme Court have
clearly held that payment of extortion money to a
banned/terror organization does not amount to terror
funding. It is not apparent from the charge-sheet and
other documents that the appellant was paying extortion
money for letting them work smoothly as no incriminating
material in terms of money, cloths, wireless set etc. were
recovered from his possession.
14. Considering the fact that two co-accused persons
namely Hitesh Agrawal and Varun Jain, who are
Directors of M/s Landmark Royal Engineering (India)
Private Limited being principal employer of the appellant
and the appellant is said to be sub-contractor of them,
have been enlarged on bail (interim) by their Lordships of
the Supreme Court in SLP (Crl.) Nos.8147-8148/2021 on
3.1.2022 and the appellant is in custody since 23.4.2020
for more than two years and the trial is likely to take time
and also considering the nature of evidence available on
record with regard to meeting of the appellant with
terrorist/banned organization and no objectionable
material/cash was recovered from possession of the
appellant, we are of the considered opinion that learned
Special Judge (NIA) is absolutely unjustified in rejecting
the application for grant of bail. In view of above-stated
discussion, reliance placed by learned counsels for the
respondent in the matters of Hitesh Agrawal v. State of
Chhattisgarh (CRA No.463/2021) and Varun Jain v.
State of Chhattisgarh (CRA No.302/2021), decided by
this Court on 22.9.2021, are not helpful to the respondent
as against the aforesaid orders, SLP (Crl.) Nos.8147-
8148/2021 have been entertained by the Supreme Court
and Hitesh Agrawal and Varun Jain have been enlarged
on interim bail."
9. However, from the materials available on record of the case diary, it
is quite vivid that appellant No.1 is paternal uncle of Naxalite
Commander Raju Salam, who is the main accused and who is
absconding and who is actually involved in the Naxalite movement
in the said area. Appellants No.2 & 3 are in direct touch with
Naxalite Commander Raju Salam in supplying materials, cash, etc.
and in delivering materials to the Naxalite members. Even
appellant No.2 is having close relationship with Tapas Kumar Palit
who is also one of the main accused in the said offence and there
is material evidence of meeting of appellant No.2 with Naxalite
Commander Raju Salam and similar is the case of appellant No.3.
As such, the cases of the present three appellants are not identical
to that of Ajay Jain, Shailendra Bhadouriya & Komal Verma, who
have been enlarged on bail by this Court, particularly, the
apprehension and possibility expressed by the learned State
counsel that the appellants have close link and asosication with
Naxalite Commander Raju Salam and appellant No.1 being close
relative of Raju Salam, the possibility of absconding of the
appellants, if released on bail, cannot be ruled out.
10. Taking into consideration the close connection and direct link of the
appellants with Naxalite Commander Raju Salam and that chances
of their absconding on being released on bail cannot be ruled out,
considering the material available on record and their cases are not
similar to that of co-accused persons Ajay Jain, Shailendra
Bhadouriya & Komal Verma, who have been enlarged on bail, we
do not find any illegality in the order passed by the NIA Court
rejecting the application of the appellants herein for grant of bail.
Accordingly, the criminal appeal is dismissed. However, the trial
Court is directed to consider and expedite the trial.
11. It is made clear that any observation made in this judgment is only
for the purpose of deciding the appeal under Section 21(4) of the
NIA Act and this Court has not made any observation on the merits
of the matter and the Special Judge (NIA Act) will decide the matter
strictly as per material available on record without being influenced
by any observation made in this order.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Soma
