Jharkhand High Court
Prem Sagar Mahto vs The State Of Jharkhand Through ... on 22 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 352 of 2019
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1. Prem Sagar Mahto S/o Lagnu Mahto, R/o Village-
Sulma, P.O. & P.S.- Lawalong, District- Chatra
2. Uchit Mahto S/o Late Sukhan Mahto, R/o Village- Lutu,
P.O. & P.S.- Lawalong, District- Chatra ... ... Appellants
Versus
The State of Jharkhand through National Investigating
Agency ... ... Respondent
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
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For the Appellants : Mr. A.K. Chaturvedy, Advocate
For the Respondent-NIA : Mr. A.K. Das, Spl. P.P.
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20/22.12.2022 Heard Mr. A.K. Chaturvedy, learned counsel for
the appellants and Mr. A.K. Das, learned Special P.P. for the
NIA, Ranchi.
2. This appeal is directed against the order dated
26.03.2019 passed by the learned Judicial Commissioner-
cum-Special Judge, NIA, Ranchi in Misc. Cr. Application No.
28/2019 (Special (NIA) No. 08/2018, corresponding to R.C.
No. 23/2018/NIA/DLI), arising out of Panki (Palamu) P.S.
Case No. 157/2017, whereby and whereunder the prayer for
bail of the appellants has been rejected.
3. It has been alleged by the informant that on
19.11.2017, he had received an information that Pramjit
Singh @ Soni who is a member of MCC and presently joined
TPC was demanding levy from the contractors and giving
threats for which a station diary entry was made and on
verification the said fact was found to be true. The
Superintendent of Police was informed and as per his
direction a team was constituted. When the team reached
Panki market a confidential information was received that an
active member of TPC namely Shyam Bhokta @ D.C. was
coming after collecting levy from different traders and
contractors and was to handover the money to the members
of extremists outfit. It has been alleged that the said person
on seeing the Police Party tried to flee away but he was
apprehended on chase and on a search conducted a country
made pistol and a cartridge was recovered from his trouser
and from his bag cash of Rs. 5,00,000/-, voter ID, PAN Card
and two mobiles were recovered. The apprehended accused
could not produce any document with respect to the cash as
well as arms and ammunitions. He had disclosed that he was
going to handover the money to senior leaders of the
organization. He had also disclosed that the money was
collected from traders of Kendu leaves, query owners,
contractors and businessmen.
4. Based on the aforesaid allegations Panki (Palamu)
P.S. Case No. 157/2017 was instituted for the offences under
Sections 386, 120B of the I.P.C., Sections 17, 18 of the
Criminal Law Amendment Act, Sections 10, 11, 17, 18, 19 &
20 of the Unlawful Activities (Prevention) Act, 1967, Section
25(1-b)(a), 26, 35 of the Arms Act.
On completion of investigation charge-sheet was
submitted by the Police. However, pursuant to the order
dated 06.07.2018 of the Government of India, Ministry of
Home Affairs the investigation of Panki (Palamu) P.S. Case
No. 157/2017 was handed over to the NIA pursuant to which
the First Information Report was re-registered as Special (NIA)
Case No. 08 / 2018 (NIA Case No. RC-23/2018/NIA/DLI).
The first supplementary charge-sheet was submitted against
both the appellants u/s 386/411 of the Indian Penal Code,
Section 25(1-b)(a), 26 of the Arms Act, Sections 17 of the
Criminal Law Amendment Act and Sections 17, 18, 19, 21 &
23 of the Unlawful Activities (Prevention) Act.
5. It has been submitted by Mr. A.K. Chaturvedy,
learned counsel for the appellants that the main allegation
has been levelled against Shyam Bhokta @ D.C. So far as the
present appellants are concerned, they have been implicated
on the confessional statement of Shyam Bhokta @ D.C. It has
been submitted that a country made pistol loaded with a
cartridge was recovered from the appellant no. 1 while a
pistol with two live cartridges were recovered from the
appellant no. 2 for which they are in custody since
23.11.2017. He has also submitted that both the appellants
were granted bail by this Court but subsequently the order
was recalled as the case was transferred to the NIA. Out of 72
witnesses only 02 witnesses have been examined so far and
there is no chance of the trial being concluded in the near
future. Mr. Chaturvedy, has placed reliance upon the
judgment in the case of "Union of India versus K.A. Najeeb",
reported in (2021) 3 SCC 713. Learned counsel adds that no
prima facie case for denial of bail u/s 43-D(5) of the UA(P) Act
is made out against the appellants.
6. Mr. A.K. Das, learned Special P.P. for the NIA has
refuted the submissions advanced by the learned counsel for
the appellants while submitting that both the appellants are
active member of the terrorist gang TPC and their
involvement has come to light on the confession of Shyam
Bhokta @ D.C. which had also led to a huge cache of arms
recovered from Lambitaand Hills from where both the
appellants were apprehended. He has submitted that though
72 witnesses have been cited in the supplementary charge-
sheet submitted by the NIA but the prosecution does not
intend to examine all the witnesses.
7. We have considered the rival submissions and
have also perused the affidavits on record including the
supplementary charge-sheet submitted at the Bar by the
learned Special P.P. for the NIA.
The appellant no. 1 has been arrayed as A-3 in the
supplementary charge-sheet and his involvement in the
offence is depicted at para 17.12.3 which reads as follows:
"17.12.3 Role and activities of / offences
established against Premsagar Mahto (A-3):
Therefore, as per the averments made hereinabove
and as per evidence collected on record during
investigation, it is established that Prem Sagar
Mahto (A-3) criminally conspired with other co-
accused persons for making extortion, receiving
extortion amounts, collecting funds for TPC, terrorist
gang / unlawful association proscribed by
Jharkhand Government. He connived with TPC
operatives and he used to harbour the TPC
operatives at his house in village Harnahi. His
arrest was made at Lambitaand hills at the
instance disclosure of A-1 and during arrest, he
was in possession of fire arm / ammunition, one
country made pistol. Apart from this, huge dump of
Arms and ammunition was also recovered from
Lambitaand Hills. Thereby he committed offence
under section 120B r/w 386, 411 of IPC, sections
25(1B)(a) & 26 of Arms Act, section 17 of CLA Act
and sections 17, 19 and 21 of the UA(P) Act. He is
also liable for the substantive offence under section
411 of IPC and sections 17, 18, 19 and 23 of the
UA (P) Act."
The findings recorded in the said charge-sheet
against the appellant no. 2 who has been arrayed as A-2
reads thus:
"17.12.2 Role and activities of / offences
established against Uchit Mahto (A-2):
Therefore, as per the averments made hereinabove
and as per evidence collected on record during
investigation, it is established that Uchit Mahto (A-
2) criminally conspired with other co-accused
persons for making extortion, receiving extortion
amounts, collecting funds for TPC, the terrorist
gang and unlawful association, proscribed by
Jharkhand Government. In connivance with TPC
operatives, he used to harbour the TPC operatives
at his house in village Luttu. His arrest was made
at Lambitaand hills at instance of A-1. He was in
possession of the firearms and ammunition. One 9
mm Pistol with live ammunition was seized from
his possession. Apart from this, huge dump of Arms
and ammunition was also recovered from
Lambitaand hills. Thereby he committed offence
under section120B r/w 386, 411 of IPC, sections
25(1B)(a) & 26 of Arms Act, section 17 of CLA Act
and sections 17, 19 and 21 of the UA (P) Act. He is
also liable for the substantive offence under section
411 of IPC and sections 17, 18, 19 and 23 of the
UA (P) Act."
8. The common feature which is derived from the
allegations against the appellant nos. 1 and 2 are that both
were apprehended from Lambitaand Hills at the instance of
Shyam Bhokta @ D.C. (A-1) and arms and ammunitions were
recovered from their possession. The seriousness of the
offence can be ascertained from the fact that apart from the
appellants being apprehended a huge cache of arms and
ammunitions and other incriminating articles were also
recovered from Lambitaand Hills which includes the
following:
i) One LMG .303 bore with magazine loaded
with 10 live ammunition;
ii) Four (04) Nos. .303 bore Rifle with Magazine;
iii) 150 Nos. live ammunition of .303 bore;
iv) Two nos. live ammunition of 7.62 SLR;
v) Two nos. live ammunition of 7.62 Ak-47;
vi) Three nos. live ammunition of 5.56 insas:
vii) 150 Nos. live ammunition of .22 bore:
viii) One Empty case of detonator;
ix) Two Bandolier for keeping ammunition;
x) One pull through for cleaning barrel;
xi) One lathe machine fitted with motor and die;
xii) One yellow colour welding machine fitted
with transformer
xiii) One big transformer
xiv) Golden compass and spare parts weighing
520 kgs with Lethe machine etc.
9. The seizure of such a huge quantity of
incriminating materials led to institution of a separate case
being Panki P.S. Case No. 158 of 2017 but the said materials
were handed over to the NIA by the State Police and according
to Mr. Das, learned Special P.P. the NIA had submitted a
cumulative charge-sheet.
Both the appellants also seem to have criminal
antecedents as noted in the supplementary charge-sheet.
10. Mr. A.K. Chaturvedy, learned counsel for the
appellants has relied upon the case of "Union of India versus
K.A. Najeeb" (supra) and has referred to the following:
"17. It is thus clear to us that the presence of
statutory restrictions like Section 43-D(5) of the UAPA
per se does not oust the ability of the constitutional
courts to grant bail on grounds of violation of Part III
of the Constitution. Indeed, both the restrictions under
a statute as well as the powers exercisable under
constitutional jurisdiction can be well harmonised.
Whereas at commencement of proceedings, the courts
are expected to appreciate the legislative policy
against grant of bail but the rigours of such provisions
will melt down where there is no likelihood of trial
being completed within a reasonable time and the
period of incarceration already undergone has
exceeded a substantial part of the prescribed
sentence. Such an approach would safeguard against
the possibility of provisions like Section 43-D(5) of the
UAPA being used as the sole metric for denial of bail
or for wholesale breach of constitutional right to
speedy trial.
18. Adverting to the case at hand, we are
conscious of the fact that the charges levelled against
the respondent are grave and a serious threat to
societal harmony. Had it been a case at the
threshold, we would have outrightly turned down the
respondent's prayer. However, keeping in mind the
length of the period spent by him in custody and the
unlikelihood of the trial being completed anytime
soon, the High Court appears to have been left with
no other option except to grant bail. An attempt has
been made to strike a balance between the
appellant's right to lead evidence of its choice and
establish the charges beyond any doubt and
simultaneously the respondent's rights guaranteed
under Part III of our Constitution have been well
protected.
19. Yet another reason which persuades us to
enlarge the respondent on bail is that Section 43-D(5)
of the UAPA is comparatively less stringent than
Section 37 of the NDPS Act. Unlike the NDPS Act
where the competent court needs to be satisfied that
prima facie the accused is not guilty and that he is
unlikely to commit another offence while on bail; there
is no such precondition under UAPA. Instead, Section
43-D(5) of the UAPA merely provides another possible
ground for the competent court to refuse bail, in
addition to the well-settled considerations like gravity
of the offence, possibility of tampering with evidence,
influencing the witnesses or chance of the accused
evading the trial by absconsion, etc."
Conclusion
20. In light of the above discussion, we are
not inclined to interfere with the impugned order.
However, we feel that besides the conditions to be
imposed by the trial court while releasing the
respondent, it would serve the best interest of justice
and the society at large to impose some additional
conditions that the respondent shall mark his
presence every week on Monday at 10 a.m. at the
local police station and inform in writing that he is not
involved in any other new crime. The respondent
shall also refrain from participating in any activity
which might enrage communal sentiments. In case
the respondent is found to have violated any of his
bail conditions or attempted to have tampered the
evidence, influence witnesses, or hamper the trial in
any other way, then the Special Court shall be at
liberty to cancel his bail forthwith. The appeal is
accordingly dismissed subject to the abovestated
directions."
11. The charges against the appellants are grave and
though we are conscious of the fact that the appellants have
remained in custody for more than five years but regard being
had to the fact that the trial is progressing and some
witnesses have been examined, at this stage, we are not
inclined to interfere in the impugned order dated 26.03.2019
passed by the learned Judicial Commissioner-cum-Special
Judge, NIA, Ranchi in Misc. Cr. Application No. 28 / 2019
(Special (NIA) No. 08 / 2018, corresponding to R.C. No. 23 /
2018 / NIA / DLI), arising out of Panki (Palamu) P.S. Case
No. 157/2017, and this appeal accordingly stands dismissed.
12. Mr. Das, learned Special P.P. for the NIA in course
of his submission has referred to an order passed by the
Hon'ble Supreme Court in the case of "Bindeshwar Ganjhu @
Bindu Ganjhu versus The Union of India through NIA" which
arose out of an order passed by this Court in Criminal Appeal
(D.B.) No. 29 of 2021 wherein directions have been given to
conclude the trial within one year by conducting the same on
a day-today basis. Though the said case arose out of a
different First Information Report which was instituted by the
NIA but taking a cue from the order under reference and on
consideration of the period of incarceration undergone by the
appellants, we direct that the learned trial court shall make
endeavour to conclude the trial within a period of one year
from today. If, however, the trial is not concluded within the
said period, the appellants are at liberty to renew their prayer
for bail.
13. This appeal is, therefore, dismissed with the
aforesaid observations and directions.
14. Pending I.As., if any, stands disposed off.
(Rongon Mukhopadhyay, J.)
(Ambuj Nath, J.)
Alok/-
