Inaocha Singh vs The National Investigation ...
2022 Latest Caselaw 3912 Gua

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GAHC010205082022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

            Case : I.A.(Crl.)/600/2022

            INAOCHA SINGH
            S/O SHRI L. GAURAHARI SINGH
             R/O SHRI L. GAURAHARI SINGH
             R/O KWAKEITHAL KONJEN LEIKAI
             P.S. SINGJAMEI
             DIST. IMPHAL WEST
             MANIPUR


            VERSUS

            THE NATIONAL INVESTIGATION AGENCY
            REPRESENTED BY SC NIA


            ------------
            Advocate for : MR D K MISHRA
            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

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.

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By filing this I.A. under Section 389(2) of the Cr.P.C., 1973 the applicant herein has

approached this Court for the first time seeking suspension of his jail sentence and for release

on bail pending adjudication of the connected Crl. Appeal No. 261/2018.

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 L. Inaocha Singh (A-2)

along with three others, viz.; N. Shanti Meitei (A-1) L. Jiten Singh (A-3) and E. Bobo (A-4)

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, read

with Section 468/ 419/ 471/ 420 IPC.

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; RI for 02 years for committing the offences under Sections 468/

419/ 471/ 420 of the IPC and to pay fine of Rs. 5,000/-. 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. 261/2018 which is pending disposal before this Court.

The instant application has been filed by invoking Section 436A of the Cr.P.C. on the

ground that the applicant has already undergone half of the maximum jail sentence 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 Page No.# 3/6

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 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 Page No.# 4/6

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. However, referring to Section 389 of the Cr.P.C. Mr. Choudhury seeks

time to file objection in this I.A.

We have considered the submission made by the learned counsel for both the sides and

have also gone through the materials available on record. 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 05 years 01 month

and 15 days 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 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 Page No.# 5/6

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 meaning of the provisions under 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 for preferring this application

for the first time after he has completed half of the maximum jail sentence.

Insofar as the objection raised by Mr. Choudhury, learned DSGI seeking time to file

objection, what is to be noted herein that in the similar bail applications filed by the other

applicants viz. L. Jeeten Singh (A-3) and E. Bobo (A-4) on the same grounds as urged in this

I.A. the respondent has already filed objection. Mr. Choudhury has not disputed that the

grounds taken in the objection filed in respect of the bail applications filed by L. Jeeten Singh

(A-3) and E. Bobo (A-4) seeking suspension of sentence under Section 389 Cr.P.C. will be the

same in the present case as well. If that be so, having regard to the facts and circumstances

of the case and also the fact that this Court is closing down for the long vacation in a day, we Page No.# 6/6

are not inclined to defer the consideration of the bail prayer made in this I.A. only to allow

the DSGI to file a similar objection in this I.A. as well.

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.

We, therefore, direct that the applicant, viz. L. Inaocha Singh be released on bail on

furnishing 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 his whereabouts to the Imphal (West)

Police Station on the interval of 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