Buredi Narayana vs The State Of Jharkhand Through The ...
2022 Latest Caselaw 4253 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
         Criminal Appeal (DB) No. 180 of 2022
Buredi Narayana                                   ...   Appellant
                         Versus
1. The State of Jharkhand through the National Investigation Agency
2. The Union of India through National Investigation Agency
                                          ... Respondents
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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE RAJESH KUMAR

For the Appellant : Mrs. Kavitha Bagelikar, Advocate & Mr. Faisal Allam, Advocate For the NIA : Mr. Amit Kumar Das, Spl.P.P.

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Order No. 09 Dated 18.10.2022

1. Heard Mrs. Kavitha Bagelikar, learned counsel for the appellant and Mr. Amit Kumar Das, learned Spl.P.P for the NIA.

2. This appeal is directed against the order dated 24.01.2022 passed in Misc. Criminal application No. 1472 of 2021 in connection with RC- 14/2017/NIA/DLI arising out of Chutia P.S. Case No. 180 of 2017 by Shri Madhuresh Kumar Verma, learned Additional Judicial Commissioner-XIV- cum-Special Judge, NIA, Ranchi, whereby and whereunder, the prayer for bail of the appellant has been rejected.

3. The appellant had earlier moved this Court for grant of bail in Criminal Appeal (DB) No. 92 of 2020 and vide order dated 28.09.2020, the same dismissed.

4. The allegations reveal that on a secret information a raid was conducted by the police near Ranchi Railway Station and Buredi Narayana (Appellant) and Moola Satya Narayana Reddy were apprehended and while Rs. 5 Lakhs in cash was recovered from the appellant, more than Rs. 20 Lakhs and Gold bar weighing 473.9 grams as well as some incriminating documents were recovered from the possession of the co-accused. The accused persons were carrying the amount which has been collected through extortion to Telangana. The appellant is the younger brother of Sudhakar who is a member of the Central Committee of CPI (Maoist).

Based on the aforesaid allegations, Chutia P.S. Case No. 180 of 2017 was instituted u/s 386/34 I.P.C., Section 17/18 of the Criminal Law Amendment Act (CLA Act) and Section 10/11/17/18/19 of the Unlawful Activities Prevention Act (UAP Act).

5. The investigation of the case was handed over to NIA vide order No. 11011/35/2017-IS-IV of the Ministry of Home Affairs, Govt. of India, New Delhi dated 26.10.2017 and Chutia P.S. Case No. 180 of 2017 was reregistered as RC-14/2017/NIA/DLI. A charge sheet was submitted by the NIA against the appellant who has been arrayed as A1 u/s 21 UAP Act and Section 411/386 of the I.P.C.

6. It has been submitted by the learned counsel for the appellant that there is no evidence that the amount recovered from the possession of the appellant were proceeds of extortion money collected by A3 and A4. It has been submitted that the appellant has been implicated on account of the fact that he is the brother of Sudhakar. The amount recovered was not ascertained to be the proceeds of terrorism to attract Section 21 UAP Act. She has also laid much stress upon the period of custody of the appellant which is since 30.07.2017 and there being no likelihood of the trial being concluded in the near future, the appellant according to her deserves to be released on bail.

7. Per contra, Mr. Amit Kumar Das, learned Spl.P.P for the NIA has submitted that the appellant apart from being the brother of Sudhakar who was a member of the Central Committee of CPI (Maoist) is himself an active member of the proscribed organization. He has submitted that the co- accused apprehended along with the appellant had turned approver and as PW 1 he has spelt out the operational details of the appellant. On the basis of the disclosures made by Moola Satyanarayana Reddy various places were raided at Hyderabad and several incriminating articles were recovered. It has been submitted that the trial is at an advanced stage as 17 witnesses have already been examined.

8. We have heard the learned counsel for the respective sides and have also perused the various affidavits filed. The role of the present appellant is depicted in Para 17.17 of the charge sheet which reads as follows:

17.17 Role of A-1: It is revealed that A-1 is younger sibling of A-3 and on being instructed by A-3, Buredi Narayana had received Rupees one lac in cash in July, 2017 from PW-1 in Hyderabad. It stands corroborated by the fact that cash to the tune of Rs. 70 Thousand was deposited in the bank account of his wife in between 21.07.2017 to 26.07.2017. Also A-1 accompanied PW-1 in visiting Gumla from Secunderabad for meeting A-3 and subsequently had

received rupees five lacs in cash (and two wrist watches meant for daughters of A-1) from A-3 on 28/29 August 2017 which were subsequently seized from the possession of A-1 on 30.08.2017. From his (A-1) possession, Maoist literature was also seized on 30.08.2017 which was given to him (A-1) by A-3. Further A-3 has no legal source of income and the cash/ valuable goods, which were seized s above from the possession A-1, is established to be a part of the extortion/ levy amount accumulated by A-3/A-4.

9. As noted above the appellant had earlier moved for grant of bail in Criminal Appeal (DB) No. 92 of 2020 which was dismissed on the following grounds:

"....8. Having heard learned counsels for both the sides and upon going through the record, we find that the appellant has been apprehended along with huge amount of more than rupees five lakh and more than rupees twenty lakh were recovered from the accomplice of the appellant, both of whom were apprehended together. Gold bar weighing 473.9 gms., and other incriminating articles were also recovered from the apprehended accused. It is an admitted fact that the appellant is the brother of Sudhakaran, who is the leader of the Central Committee of CPI (Moist), a banned terrorist organization, actively involved in the extorting levy from the contractors and business people. At this stage, it cannot be said that the huge amount of money which the appellant was having with him, were not the proceeds of terrorism.

9. Section 21 of the UA(P) Act, reads as follows:

"21. Punishment for holding proceeds of terrorism.- Whoever knowingly holds any property derived or obtained from commission of any terrorist act or acquired through the terrorist fund shall be punishable with imprisonment for a term which may extend to imprisonment for life and shall also be liable to fine."

A plain reading of this Section clearly shows that the appellant was knowingly having the money, which he received from his brother, who was non-else than a leader of terrorist organization operating in the State of Jharkhand. As

such, it cannot be said that he did not know that the money was the proceeds from the terrorism. Once, this money has been recovered from the appellant, Section 21 of the UA(P) Act clearly comes into play against the appellant.

10. Section 43-D(5) of the UA(P) Act reads as follows:

"43-D(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."

11. In view of the materials brought on record, which shows that the appellant is in close association with Maoists of the top rank, and he was carrying away the money, which can safely be said to be the proceeds of the terrorism, we find that at this stage, there is nothing on record to show that the case against the appellant is not prime facie true. Section 21 of the UA(P) Act, comes under Chapter-IV of the said Act, and as such, under Section 43-D(5) of the UA(P) Act, the burden lies heavily upon the appellant to show that the case against him is not prime facie true, but the appellant has failed to discharge this burden."

10. Thus a prima facie case was found against the appellant u/s 43- D(5) of the UAP Act which led to the rejection of his plea for bail. When this Court had already recorded a satisfaction regarding existence of a prima facie case against the appellant, the same cannot be reviewed or revisited in absence of any materials to the contrary, rather the prima facie evidence appears to have gained strength by virtue of the evidence of the approver as well as the testimony of the other witnesses. What remains therefore is the period of custody undergone by the appellant and the possibility of the conclusion of trial. Learned counsel in such context has referred to the case of Jahir Hak v. State of Rajasthan reported in 2022 Live Law (SC) 467 wherein the appellant

was granted bail as he was in custody for almost 8 years and out of 109 witnesses only 06 witnesses were examined. She has also referred to the case of Union of India v. K.A. Najeeb reported in (2021) 3 SCC 713 wherein it has been held as follows:-

"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 judgment in K.A. Najeeb (supra) has taken into consideration that there is no likelihood of the trial being completed within a reasonable period and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. In the case at hand the appellant has remained in custody for five years and the offence charged u/s 21 of the UAP Act in which the prescribed period of sentence may extend to imprisonment for life. That apart, seventeen witnesses have been examined by the prosecution and Mr. Das has assured this Court that every effort is being made to conclude the trial within a reasonable period.

12. Learned counsel for the appellant has also referred to the case of Dr. P. Varavara Rao v. NIA and others in Criminal Appeal No. 1206/2022 wherein bail was granted primarily on consideration of the age and medical condition of the appellant. However, none of these features are salient to the present appeal. None of the judgments cited by the learned counsel for the appellant helps the appellant regarding grant of bail to him.

We, therefore, dismiss the appeal with a direction to the learned trial court to endeavour to conclude the trial within a period of one year from today.

Let a copy of this order be sent to the learned trial court immediately.

(RONGON MUKHOPADHYAY, J.)

(RAJESH KUMAR, J.) MK