Gauhati High Court
Crl.A./167/2021 on 27 July, 2022
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GAHC010085812021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./167/2021
NATIONAL INVESTIGATION AGENCY (NIA),
MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA,
GUWAHATI, ASSAM.
......Appellant.
- VERSUS-
TULULA PONGEN,
WIFE OF MR. IMKONG,
RESIDENT OF DUNCAN BASTI,
DIMAPUR, NAGALAND.
......Respondent.
Advocate for the Appellant : Mr. D.K. Das, Sr. Adv.
: Ms. K. Talukdar, Adv.
: Ms. P. Dorjee, Adv.
For the Respondent : Mr. S. Dutta, Sr. Adv.
: Ms. A. Sangtam, Adv.
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BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
Date of Hearing & Judgment : 27.07.2022.
JUDGMENT AND ORDER (ORAL)
[N. Kotiswar Singh, J.]
Heard Mr. D.K. Das, learned Senior counsel assisted by Ms. K. Talukdar, learned
counsel appearing for the appellant-National Investigation Agency (NIA). Also heard Mr. S.
Dutta, learned Senior counsel assisted by Ms. A. Sangtam, learned counsel appearing for the
respondent.
2. In this appeal, the appellant has challenged the order dated 16.03.2021 passed by the
learned Special Judge, NIA, Dimapur, Nagaland in I.A.(Crl.) No.40/2021 arising out of
R.C.01/2016/NIA-GUW by which the respondent was granted bail, on the ground that though
the Trial Court gave a finding that the accusation against the respondent is prima facie true,
yet, proceeded to grant bail to the respondent on the spacious ground that the trial would
take long time inasmuch as only few witnesses have been examined out of long list of
witnesses.
3. Learned Senior Counsel for the appellant submits that the aforesaid approach of the
Trial Court is not permissible inasmuch as there is no provision for grant of bail on such
ground except on the ground that the accusation against the person charged of offence
under UA(P) Act, 1967 covered under Chapter IV and VI of the UA(P) Act are not prima facie
true. Thus, if the Trial Court comes to the conclusion that the accusation against the
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respondent is prima facie true, that should have been sufficient to deny the bail. However,
instead of doing so, the Trial Court based on certain other grounds which are not
contemplated under the law governing bail under UA(P) Act, released the respondent on bail
by treating to be a normal bail application which is not, otherwise, permissible.
4. On the other hand, Mr. S. Dutta, learned Senior counsel for the respondent submits
that though the Trial Court had gave a finding that the accusations against the respondent
are prima facie true, the said finding was given on the basis of law which was considered not
proper in view of the subsequent decisions rendered by the Hon'ble Supreme Court in that
regard.
5. It has been submitted by learned Senior counsel for the respondent that the basic
accusation against the respondent is that she had paid certain amount of money to the
NSCN(K) which, however, has been explained by saying that the same had been paid under
duress and not voluntarily.
6. It has been submitted by learned Senior counsel for the respondent that unless there
is a clear intention to make such contribution voluntarily i.e. an intention to fund or contribute
to a terrorist organization, it cannot be said to be offence as held by the Hon'ble Supreme
Court in Sudesh Kedia Vs. Union of India, (2021) 4 SCC 704.
7. In this regard, Mr. Dutta, learned Senior counsel has drawn attention of this Court to
para No.13.1 of aforesaid Sudesh Kedia (supra) wherein Hon'ble Supreme Court observed
as follows,
"13.1 A close scrutiny of the material placed before the Court would clearly show
that the main accusation against the appellant is that he paid levy / extortion amount to the
terrorist organisation. Payment of extortion money does not amount to terror funding. It is
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clear from the supplementary charge-sheet and the other material on record that other
accused who are members of the terrorist organization have been systematically collecting
extortion amounts from businessmen in Amrapali and Magadh areas. The Appellant is
carrying on transport business in the area of operation of the organisation. It is alleged in
the second supplementary charge- sheet that the Appellant paid money to the members of
the TPC for smooth running of his business. Prima facie, it cannot be said that the Appellant
conspired with the other members of the TPC and raised funds to promote the organisation."
8. It has been submitted by learned Senior counsel for the respondent that the payment
was made on duress to the extortion amount, not voluntarily for if the payment is not made,
the life and limb of the respondent would be under serious threat and as such, it cannot be
said that the respondent had made any contribution voluntarily with the intention to support
or fund the terrorist act and it does not amount to give support to terrorist organization or
amount to raising fund for terrorist organization.
It has been submitted that the respondent is a government employee and like many
other government employees in the State, have been compelled to make financial
contribution under threat and coercion and as such, the financial contribution having been
made not voluntarily provisions of the UA(P) Act will not be attracted.
9. It has been submitted by learned Senior counsel for the respondent that the said
position of law as reflected in Sudesh Kedia (supra) has been consistently followed by
Hon'ble Supreme Court in subsequent decisions.
10. In this regard, Mr. Dutta, learned Senior counsel has submitted that in fact, in a similar
situation where a businessman was found to have given money to certain banned Maoist
organization, the High Court of Jharkhand at Ranchi had granted bail on the ground that
giving of money to the banned organization was for the smooth management of his business
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and not really to support the acts of the terrorist organization as held in Criminal Appeal
(DB) No.222/2019,[Sanjay Jain Vs. The Union of India, through the
Superintendent of Police, NIA, dated 01.12.2021] and consequently, the businessman
was granted bail in spite of invoking the stringent provisions of UA(P) Act. It has been also
submitted that the SLP filed by the Union of India (NIA) against the said decision was
rejected by the Hon'ble Supreme Court in Special Leave to Appeal (Crl.) No. 4602/2022
(Union of India Vs. Sanjay Jain) on 14.07.2022.
11. Learned Senior counsel for the respondent further submits that the Hon'ble Supreme
Court in Thwaha Fasal Vs. Union of India , [Criminal Appeal No.1302 of 2021 arising
out of SLP(Crl.) No. 2415 of 2021, order dated 28.10.2021] had reiterated that mere
association with the terrorist organization is not sufficient to attract Section 38 of the UA(P)
Act and mere support given for the terrorist organization is not sufficient to attract Section 39
of the UA(P) Act.
In the aforesaid decision in Thwaha Fasal (supra), it was observed that the association
and support have to be with the intention furthering the activities of the terrorist
organization. Thus, the Hon'ble Supreme Court has emphasized on the intention or the state
of mind.
In this regard, learned Senior counsel for the respondent has drawn attention to para
No.34 of the aforesaid decision in Thwaha Fasal (supra) which reads as follows,
"34. Now the question is whether on the basis of the materials forming part of the charge
sheet, there are reasonable grounds for believing that accusation of commission of offences
under Sections 38 and 39 against the accused nos.1 and 2 is true. As held earlier, mere
association with a terrorist is not sufficient to attract Section 38 and mere support given to a
terrorist organization is not sufficient to attract Section 39. The association and the support have
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to be with intention of furthering the activities of a terrorist organization. In a given case, such
intention can be inferred from the overt acts or acts of active participation of the accused in the
activities of a terrorist organization which are borne out from the materials forming a part of
charge sheet. At formative young age, the accused nos.1 and 2 might have been fascinated by
what is propagated by CPI (Maoist). Therefore, they may be in possession of various
documents/books concerning CPI(Maoist) in soft or hard form. Apart from the allegation that
certain photographs showing that the accused participated in a protest/gathering organized by an
organization allegedly linked with CPI (Maoist), prima facie there is no material in the charge
sheet to project active participation of the accused nos. 1 and 2 in the activities of CPI (Maoist)
from which even an inference can be drawn that there was an intention on their part of
furthering the activities or terrorist acts of the terrorist organization. An allegation is made that
they were found in the company of the accused no.3 on 30 th November, 2019. That itself may
not be sufficient to infer the presence of intention. But that is not sufficient at this stage to draw
an inference of presence of intention on their part which is an ingredient of Sections 38 and 39
of the 1967 Act. Apart from the fact that overt acts on their part for showing the presence of the
required intention or state of mind are not borne out from the charge sheet, prima facie, their
constant association or support of the organization for a long period of time is not borne out
from the charge sheet."
It has been submitted that though the said decision of the Hon'ble Supreme Court was
rendered subsequently to the impugned bail order, yet, since the matter is being remanded,
the Trial Court can consider this aspect also, inasmuch as if there was no intention to
financially contribute to the terrorist organization, no prima facie case can be made out
against the respondent.
12. Under the circumstances, it has been submitted that though the mandate of law
regarding grant of bail is to be found under Section 43D(5) of the UA(P) Act, 1967, in the
present case, it can be said that since the respondent has not made any payment voluntarily
or with an intention to fund the terrorist organization, certainly, it cannot be said that the
accusation against the respondent is prima facie true in the light of the decisions referred to
above. It has been accordingly, submitted that even if the present appeal is to be allowed, it
may be remanded to the Trial Court for reconsideration and the Trial Court may be directed to
reconsider this aspect in the light of the subsequent development in law as referred to above.
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13. Having heard the learned counsel for the parties, we have also noted that in the
impugned order dated 16.03.2021, though the Trial Court had held that the accusation
against the respondent is prima facie true, yet, it proceeded to grant bail to the respondent
on the ground that there would be undue delay in the trial of the case. We are of the view
that the said ground cannot be considered to be a good ground for release of a person on
bail if the offences are covered by Chapter IV and VI of the UA(P) Act, 1967 and if it is found
that the accusation against the person is prima facie true.
14. To that extent, we are satisfied with the submission advanced by Mr. D. K. Das, learned
Senior counsel for the appellant-NIA. However, we have also taken into account the
submissions advanced by Mr. Dutta, learned Senior counsel for the respondent that perhaps,
in view of the subsequent development in law relating to charges made against a person for
financing and making payment to terrorist organization, it may be required to examine as to
whether there was an element of intent or whether such contribution was made voluntarily or
not if the matter is remanded. In such an event, the intention or the state of mind of the
accused will be required to be examined while considering whether the accusation against the
person is prima facie or not.
Though the aforesaid decisions were rendered after the impugned bail order was
passed, since we are remanding the matter for reconsideration, we are of the view that the
Trial Court should also examine this aspect of "intention" of the respondent while considering
the plea of the respondent for bail.
15. Mr. Dutta, learned Senior counsel for the respondent has sought to demonstrate before
this Court that the contribution made by the respondent to NSCN(K) was not done voluntarily
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with the intention to contribute or support the terrorist organization or finance the terrorist
acts. However, in our opinion, that aspect can be examined by the Trial Court as all the
relevant documents and materials are before it and not before this Court.
16. Accordingly, we allow the present appeal by setting aside the impugned order dated
16.03.2021 passed by the learned Special Judge, NIA, Dimapur, Nagaland in I.A.(Crl.)
No.40/2021 arising out of RC-01/2016/NIA-GUW and remand the matter to the Trial Court for
reconsideration.
17. While doing so, the Trial Court would be required to examine as to whether the
accusation against the respondent can be said to have been prima facie true by taking into
consideration the mental state or intention of the respondent in the light of the observations
and finding of the Hon'ble Supreme Court referred to above.
18. Since the respondent has been allowed to remain on bail vide impugned order dated
16.03.2021 till now, she will continue to remain on bail under similar terms and conditions as
directed vide order dated 16.03.2021 till reconsideration of the matter by the Trial Court and
passing of a fresh order in this regard.
19. Respondent may file additional documents before the Trial Court, if so desires.
20. With the above observations and directions, the present appeal stands disposed of.
JUDGE JUDGE
Comparing Assistant
