Pankaj Kumar Singh Aged About 48 ... vs Union Of India Through National ...
2023 Latest Caselaw 2757 Jhar

                                   1


       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                     Cr. Appeal (DB) No. 584 of 2023
   Pankaj Kumar Singh aged about 48 years, s/o Sri Shyam Nandan Singh,
   R/o Azad Nagar, Bhuli, P.O. & P.S. Bank More, District-Dhanbad
   (Jharkhand).
                                               .......           Appellant
                                  Versus
   Union of India through National Investigation Agency
                                                 .......       Respondent
                                  ---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
            HON'BLE MR. JUSTICE NAVNEET KUMAR
                                 ----------
For the Appellant        : Mr. Navin Kr. Singh, Advocate
                           Md. Ayub Ansari, Advocate
For the Respondent       : Mr. Amit Kumar Das, Advocate
                                 -----------
             th
07/Dated: 10 August, 2023

Per Sujit Narayan Prasad, J.

1. The instant appeal under Section 21(4) of the National Investigation Agency Act, 2008 is directed against the order dated 28.03.2023 passed by the learned Additional Judicial Commissioner-XVI-cum-Spl. Judge, NIA, Ranchi in Misc. Criminal Application No. 847 of 2023 arising out of ATS Ranchi P.S. Case No. 01 of 2021 corresponding to Special (NIA) Case No. 4 of 2021, by which the prayer for regular bail of the appellant has been rejected.

2. The prosecution story in brief as per the allegation made in the FIR, read as under:

The prosecution case is based upon the typed report of sub inspector Vishal Pandey of ATS on 14.11.2021. In his typed report SI Vishal Pandey alleged that while investigation of the Tandwa P.S. Case No. 132/2021 he came to know that Avinash Kumar S/o Jairam Sharma and few other persons are supplying arms and ammunitions to miscreants and extremist groups. Accordingly, the ATS Ranchi P.S. Case No. 01/2021 has been registered.

The Central Government received an information regarding the registration of FIR No. 01/2021 dated 14.11.2021 P.S. ATS, Ranchi, Jharkhand, u/s. 120-B of IPC, Section 17 of CLA Act, Section 25(1-b)

A/26/35 and Section 13, 19, 20, 21 of U.A.P. Act, 1967 related to supply of arms and ammunition to maoist organization and criminals.

The accused Avinash Kumar @ Chunnu, Rishi Kumar, Pankaj Kumar, Sanjay Kumar Singh, Mujahid Khan and others, being members of the gang involved in unlawful activities, have criminally conspired to supply arms and ammunitions to the cadres of the Communist party of India (Maoists), and to the members of the terrorist gang of Aman Sahu. The arms and ammunitions so provided are being used to execute terrorist attacks on the security forces by the Maoists. The members of the Aman Sahu gang are using the said arms and ammunitions to fire at different places and injure persons for the purpose of extortion. The above conspirators have been holding arms unlawfully and have been string them for their further supply to the members of CPI (Maoist). They are also harbouring the members of the terrorist gang of Aman Sahu and are involved in holding the proceeds derived out of this unlawful activity of supporting the terrorist. Whereas it has been found that civil contractors Mujahid khan and Sanjay Singh have been working closely with the members of the CPI(Maoist) by providing them funds and other essential supplies for furthering their terrorist activities. Mujahid khan supplied 250 live rounds (ammunition) of INSAS to the Maoists. For procuring these rounds Mujahid Khan paid Rs. 1,75,000/- to the accused Rishi Kumar. The said conspirators were procuring the arms and ammunitions illegally and were storing them at different locations, for their onward supplies. 450 rounds of 5.56 MM ammunitions were recovered by the police near the Sheikh Bhikhan Memorial of Chutupalu Ghati on the pointing out of the accused Rishi Kumar and Avinash Kumar. These rounds were to be supplied to the terrorist gang of Aman Sahu. Apart from the ammunitions, the conspirators are also procuring country made pistols and are supplying it to the members of the terrorist gangs.

3. It appears from the record that initially FIR was instituted by the Anti- Terrorist Squad being ATS Ranchi P.S. Case No. 01 of 2021 for commission of offence under Section 120-B of IPC, Section 17 of CLA

Act, Section 25(1-b) A/26/35 and Section 13, 19, 20, 21 of U.A.P. Act, 1967.

The Central Government in exercise of power conferred under sub-section (5) of Section 6 read with Section 8 of the National Investigation Agency Act, 2008 vide order no. 11011/73/2021/NIA dated 03.12.2021 directed the NIA to take the investigation.

4. Learned counsel for the appellant has submitted that the appellant is innocent and has committed no offence as also has falsely been implicated in this case. There is allegation against petitioner that informant Vishal Pandey was investigating Tandwa PS case no 132/2021, he got information that one Avinash Kumar is supplying cartridges and ammunitions to members of Naxal outfit and other anti- social gang members. Thereafter a Sanha was lodged and had gone to the Imamganj police station alongwith other police officials and arrested Avinash Kumar, his confessional statement was recorded and the said Avinash Kumar, in the confessional statement, disclosed the name of appellant as a person who supplied 200 cartridges of Insas rifle in the year 2020 to Sanjay Kumar Singh to further supply to maoist cadres. Thereafter petitioner was arrested and remanded to judicial custody.

It has been submitted that no any prohibited article has been recovered from the possession of appellant. The seized cash amount Rs. 1,46,000/- was amount of appellant which was obtained by his wife on loan from JD Small Finance.

It has further been stated by making reference of FIR that the case was lodged by the police with malafide intention and appellant was arrested only on the basis of suspicion. Police had taken forcibly his confession and, on that basis, the appellant was remanded to judicial custody, as such, it is a fit case where the appellant may be directed to be released on bail.

Additional ground has been taken that one of the co-accused persons, namely, Kamendra Singh has been directed to be released on bail vide order dated 13.10.2022 passed by the co-ordinate Bench of this Court in Cr. Appeal (DB) No. 611 of 2022.

5. Per contra, Mr. Amit Kumar Das, learned counsel for the respondent has argued on the basis of the counter affidavit which has been filed in pursuance of the order passed by this Court on 12.07.2023.

6. It has been submitted that incriminating material has come against the appellant in course of investigation as would appear from the extract of the charge-sheet as has been brought on record by way of affidavit. The direct complicity of supply of arms after obtaining it from the accused no.1, who happens to be CRPF personnel and used to supply it to the banned terrorist organization and other terrorist gangs including the gang of Aman Sahu.

7. It has been contended that the complicity of the appellant has been surfaced and further been corroborated when the appellant's digital data was obtained from where it has been found that he was in direct contact with the members of the banned maoist group and banned extremist gang.

8. It has further been surfaced that amount has been transmitted in the account of the appellant from the account of the accused no.5, who happen to be a constable of BSF came in contact with accused no.9, who happens to be a head constable of 116 battalion, BSF.

9. Learned counsel for the respondent on the basis of the aforesaid submission has submitted that taking into consideration the statutory mandate as contained under Section 43D(5) of the UAP Act, it cannot be said that the allegation as has been surfaced by now upon the appellant is prima facie untrue. Hence, instant appeal is fit to be rejected.

10. So far as the contention of the appellant claiming that his case stands on the similar footing like that of the case of Kamendar Singh, who has been directed to be released on bail vide order dated 13.10.2022 passed by the co-ordinate Bench of this Court in Cr. Appeal (DB) No. 611 of 2022, is concerned, it has been contended on behalf of the respondent that the investigating agency has not submitted charge sheet under the offence of the UAP Act rather the charge sheet was submitted under Section 120-B of IPC and under Section 25(1-b)A, 26 and 29 of the Arms Act. But, herein the appellant has been charge sheeted under various sections of UAP Act and hence, it is incorrect on the part of the

appellant to take the ground that the case of the appellant is identically placed with the case of Kamendar Singh.

11. It has been submitted that the case of the appellant is almost identical to the case of accused no.1, Avinash Kumar @ Chunnu Sharma. The accused no.1 who is a Constable inducted in CRPF in the year 2011 had managed 02 country made pistols, 04 magazines and 20 rounds and the same was sold to his associate and for the said deal the accused no.1 had received Rs.42,000/-.

The allegation against the appellant is of purchase of the said ammunitions from the accused no.1, hence, the case of the appellant is identically placed with the case of Avinash Kumar, as such, the prayer for regular bail of the appellant had been rejected and the instant appeal is also fit to be dismissed.

12. We have heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned trial court in the impugned order.

13. This Court, before delving upon the issue on fact, deems it fit and proper to refer the provision of Section 43D of UAP Act, which reads as under:

"43D. Modified application of certain provisions of the Code.--(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and "cognizable case" as defined in that clause shall be construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that in sub- section (2),--

(a) the references to "fifteen days", "ninety days" and "sixty days", wherever they occur, shall be construed as references to "thirty days", "ninety days" and "ninety days" respectively; and

(b) after the proviso, the following provisos shall be inserted, namely:--

"Provided further that if it is not possible to complete the investigation within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:

Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial custody of any person in judicial custody, he shall file an

affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.

(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that--

(a) the reference in sub-section (1) thereof--

(i) to "the State Government" shall be construed as a reference to "the Central Government or the State Government.";

(ii) to "order of the State Government" shall be construed as a reference to "order of the Central Government or the State Government, as the case may be"; and

(b) the reference in sub-section (2) thereof, to "the State Government" shall be construed as a reference to "the Central Government or the State Government, as the case may be".

(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.

(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.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing."

14. It is evident from the provision of Section 43D(5) as referred hereinabove that Section 43D(5) mandates that the person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true apart from the other offences the appellant is accused of committing offences under Sections 17, 18 and 21 of the UA(P) Act, 1967.

The requirement as stipulated under Section 43D(5) of the

UA(P) Act, 1967 in the matter of grant of regular bail fell for

consideration before the Hon'ble Apex Court in National Investigation

Agency v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 wherein at

paragraph 23 it has been held by interpreting the expression "prima facie

true" as stipulated under Section 43D(5) of the Act, 1967 which would

mean that the materials/evidence collated by the investigation agency in

reference to the accusation against the accused concerned in the First

Information Report, must prevail until contradicted and overcome or

disproved by other evidence, and on the face of it, shows the complicity

of such accused in the commission of the stated offence.

It has further been observed that it must be good and sufficient

on its face to establish a given fact or the chain of facts constituting the

stated offence, unless rebutted or contradicted. The degree of satisfaction

is lighter when the Court has to opine that the accusation is "prima facie

true", as compared to the opinion of the accused "not guilty" of such

offence as required under the other special enactments. For ready

reference, paragraph 23 of the aforesaid judgment is required to be

quoted herein which reads hereunder as :-

"23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, the expression "prima facie true" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty" of such offence as required under the other

special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act...."

It is, thus, evident from the proposition laid down by the Hon'ble Apex Court in the case of National Investigation Agency v.

Zahoor Ahmad Shah Watali (Supra) that while considering the ground of delay under Section 43D(5) it is the bounden duty of the Court to apply its mind to examine the entire materials on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not.

15. The aforesaid ratio has again been considered by Hon'ble Apex Court in the case of Sudesh Kedia v. Union of India reported in (2021) 4 SCC 704 which reads hereunder as:-

"13. While considering the grant of bail under Section 43-D(5), it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not.

... ... ... ... ... ..."

It is, thus, evident that while granting the privilege of bail, the court considering the aforesaid application is required to record its opinion that the accusation made against the accused concerned is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 Cr.P.C.) and other material gathered by the investigating agency during investigation.

16. This Court is now proceeding to examine the factual aspect as has been gathered against the appellant in course of investigation by the NIA.

17. This Court has gone through the discussion so made at paragraphs-16.2; 16.3; 16.4 and 16.5 of the charge sheet. For ready reference, the said paragraphs re being referred as under:

"16.2: Accused A-1 further disclosed that, during the month of Sep. 2021, accused Aman Sao (A-10) had asked him to arrange live cartridges (5.56 MM) of INSAS rifle. On getting the instruction, A-1 in association with accused A-2 collected live cartridges of 5.56 MM caliber from two persons namely Arun Kumar Singh @ Fauji (A-5), resident of village Shahpur, PS- Sonpur and Pankaj Kumar Singh (A-3), resident of Dhanbad. However,

the ammunitions were not supplied to Aman Sahu (A-10) gang, as A-1 was not able to contact Aman Sahu (A-10). As a safety precaution the 450 live cartridges (5.56 MM) of INSAS rifle were kept / hidden beside a tree near the Sheikh Bhikhari Monument, under Ormanjhi PS area, District Ranchi, Jharkhand. At the instance of accused A-1, search was conducted in the house of Vivek Mishra, resident of village Chuabar. During the above said search one country made loaded pistol was found and seized from the possession of accused Vivek Mishra. Thereafter, a case FIR No. 183/2021, dated 13.11.2021, u/s. 25(1-b)A & 26 of Arms Act was registered at PS Imamganj, against him. Thereafter, the team located and identified accused A-2 at village Benipur, PS- Salimpur, Dist- Patna, Bihar and detained him.

16.3: During examination of Rishi Kumar (A-2), he corroborated the same facts as disclosed by the accused A-1. A-2, further disclosed that one person namely Pankaj Kumar (A-3), son of Shyam Nandan Singh, resident of Simri, PS Sakra, Dist- Muzaffarpur, (presently residing at Azad Nagar, Bhuli Dhanbad, and Jharkhand) is also involved in the instant crime. A-2 further disclosed that he also supplied 200 live cartridges (@ Rs. 700 per round) of 5.56 MM to Maharaj Parmanik, a Zonal Committee Member of CPI (Maoists). Accused Sanjay Kumar Singh (A-11), who was working at Chakradharpur as a road contractor had helped in the supply of the above consignment during the month of January 2020. In the same way 250 rounds live ammunition of 5.56 MM were also demanded by the armed cadres of CPI (Maoist) through Mosahid Khan (A-12) (contractor at Kharsawan Road). That was also supplied to the armed cadres of CPI (Maoist) in the same way and a payment of Rs. 1,75,000 was received in lieu of the ammunition.

16.4: Ormanjhi PS area, Ranchi, Jharkhand near the Memorial of Sheikh Bhikhari near Chutupalu Ghati, Jharkhand, A-1 & A-2 pointed out and it led to recovery of 450 numbers of 5.56 MM live rounds/ammunitions, beside a tree near the Sheikh Bhikhari Memorial. Subsequently, A-1 and A-2 were arrested on 14.11.2021. A-1, A-2, A-3, A-11, A-12 and others were supplying arms and ammunition to the armed cadres of CPI (Maoist), a banned terrorist organization and other terrorist gangs including gang of Aman Sahu (A-10). The arms and ammunition so provided by the aforesaid accused persons to the armed cadres of CPI (Maoist) and Aman Sahu gang were being used to execute attacks on security forces and for carrying out terrorist activities and also to create terror among the local public, who are involved in government development projects.

16.5: On the basis of written complaint given by Sh. Vishal Pandey, Sub- Inspector, ATS, Ranchi a FIR No. 01/2021, dated 14.11.2021, u/s. 120-B of IPC, Section 17 of CLA Act, Section 25(1-b) A, 26 & 35 and Section 13, 19, 20, 21 of UA(P) Act, 1967 was registered at PS ATS Ranchi, against the accused persons namely Avinash Kumar @ Chunnu Sharma (A-1), Rishi Kumar (A-2), Pankaj Kumar Singh (A-3). Arun Kumar Singh @ Fauji (A-5), Aman Sahu @ Aman Sao (A-10), Sanjay Kumar Singh (A-11), Moshahid Khan (A-12) and others un-known accused persons.

18. It is evident from the aforesaid paragraphs that the direct complicity of the appellant has been surfaced who was found to be supplying ammunitions to the banned terrorist organization and other terrorist gang including the gang of Aman Sahu (A-10). The arms and ammunition so provided by the accused persons to the armed cadres of CPI (Maoist) and Aman Sahu gang were being used to execute attacks on security forces

and for carrying out terrorist activities and also to create terror among the local public, who are involved in government development projects.

19. This Court has also gone through the discussion so made at paragraphs- 17.4.4; 17.4.5; 17.5.1; 17.5.2 and 17.5.3 of the charge sheet. For ready reference, the said paragraphs re being referred as under:

"17.4.4: Arrest of FIR named accused Arun Kumar Singh @ Fauji (A-5) and Kartik Behera (A-9) and subsequent seizure of huge quantity of live ammunition and incriminating documents: - During investigation, it is revealed that accused A-3 had procured live ammunitions from another co-accused i.e., A-5. On 16.11.2021 accused A-5 was arrested and during examination, he confessed about his role & involvement of A-9 and other associates in the instant crime. A-5 disclosed that he had procured many consignments of ammunitions from A-9. At that time A-9 was serving in Border Security Force (from now it is referred as BSF) in the rank Head Constable and was working as Kote NCO of Magazine in 116 BN, BSF, Ferozpur, Punjab. On the Disclosure Cum Pointing Out by accused A-5, a total no. of 909 (Nine hundred & nine) live ammunitions of different calibre, two mobile handsets and three SIM Cards were seized. Further, on the basis of disclosure statement of A-5, the investigation team reached at Ferozpur, Punjab and examined A-9. On pointing out by A-9, a total 8304 nos. live ammunition/EFC of different calibers & detonators were seized by BSF. As disclosed by accused A-5, the visitor register of Hotel Atithi, located Opposite Udham Singh Market, Ferozpur, Punjab was seized on production order. Investigation has established that during Dec, 2019, March-2020 & July 2021, when the accused A-9 was posted at Ferozpur (Punjab), accused A-5 had visited Ferozpur and stayed at Hotel Atithi.

17.4.5: Arrest of A-6, A-7, A-8, A-10, A-11 and seizures of huge quantity of Arms from

Madhya Pradesh / Maharashtra and arrest of the module: - Investigation has established that huge quantity of arms and ammunitions were supplied to the gang of Aman Sahu (A-10) from Buldhana, Maharashtra and Burhanpur, Madhya Pradesh. On 20.11.20221, during nakabadi / blockade at Tunki Road, accused persons A-6 & A-7 were arrested and from their possession, two country-made pistols and one motorcycle bearing registration No. MH 28AE 5673 was seized. Further on the disclosure of A-6 & A-7, accused A-8 was apprehended from Pachauri- Tunki Road and from his possession 12 nos. of Pistols, 21 Magazines in a black bag and mobile handsets were seized. Accordingly, A-6, A-Z & A-8 were arrested in the instant case. Further, on the basis of available evidences on 10.01.2022 accused A-10 was remanded and on 07.02.2022 FIR name accused A-11 was also arrested by NIA.

...

17.5.1: Avinash Kumar (A-1): - Accused A-1 as a constable was inducted in CRPF in the year 2011. Accused A-1 had managed 02 country-made Pistols, 04 Magazines and 20 rounds and the same was sold to his associate and for the said deal, A-1 had received forty two thousand rupees. Investigation has revealed that accused A-1 was trying to obtain a Carbine rifle and for the said purpose, he had also approached his local contacts. Further, accused A-1 came in contact with A-10. A-10 had directed A-1 to procure 5.56 MM ammunitions for INSAS rifle. Accordingly, A-1 had procured 450 rounds from A-2 and he got the delivery in Gaya (Bihar) on 8/9.09.2021. For the above deal, accused A-1

had received an amount of Rs. one lakh eighty thousand in the bank account of Rishi Kumar (A-2). However, the rounds were not delivered to A-10, as A-1 could not come in contact with A-10 and the above ammunition were seized from a spot near a tree at Oramanjhi Sheikh Bhikhari Monument, Oramanjhi, Ranchi, Jharkhand.

17.5.2: Rishi Kumar (A-2): During investigation, it is established that A-2 was closely associated with accused A-1, A-3, A-5, A-11 & A-12. During the year 2020, A-2 had procured 200 live ammunitions of 5.56 MM from A-3 and knowingly provided the same to accused A- 11. Further, accused A-11 had supplied the same to the armed cadres of CPI (Maoist). Accused A-2 had also conducted meeting with Maharaj Pramanik, the then Zonal Commander of CPI (Maoist). Apart from that, accused A-2 came in contact with A-10 through A-1. As per direction of A-10, A-1 and A-2 had procured 450 live ammunitions from A-5 through A-3. The above ammunitions were concealed near a tree at Sheikh Bikhari Memorial, Chutupalu Ghati, Ormanjhi, Ranchi, Jharkhand, which was later seized on the pointing out of accused persons A-1 & A-2. Accused A-2 and accused A-3 were also trying to arrange ammunition of AK-47 rifle and Hand Grenade for the Gang of A-10. Accused A-2 also pointed out the places, where he had handed over the live ammunitions to the FIR named accused A-12.

17.5.3: Pankaj Kumar Singh (A-3): - Investigation has revealed that accused A-3 is closely associated with A-2, A-4 A-5 and he was a conduit between A-2 & A-5, in the supply chain of arms and ammunitions. Investigation has also revealed that during 2021, A-3 got instruction from accused A-5 for procuring INSAS rifle; however, the same could not be arranged at that time. Investigation has also established that A-4 had approached A-3 for selling of his un-licensed Pistols and which is also corroborated by the photographs of a pistol, shared on the WhatsApp. It is also established from the investigation that on following occasions accused A-3 had assisted A-2 in purchasing of ammunitions of 5.56 MM calibre. The details are as under:-

        S.N.    Period      No. of Live Ammunition       Amount Received by A-3
         01    Feb, 2020      200 Rds of 5.56 MM              Rs. 5000/-
         02    Mar, 2020      200 Rds of 5.56 MM              Rs. 5000/-
         03    Sep, 2021      450 Rds of 5.56 MM             Rs. 10,000/-

20. It is evident from the aforesaid imputation as gathered in course of investigation as referred hereinabove that the complicity of the appellant is very much apparent in getting the supply of the arms and ammunitions from the constable of the CRPF and BSF for its onward transmission by way of selling it to the banned terrorist organization and the extremist gang.

21. It further appears that while analyzing CDR and IPDR that the location of the mobile phones of A-5 and A-9 were found in Ferozpur (Punjab) which according to the investigating agency establishes that A-5 had gone to Ferozpur, Punjab to take supply of the ammunitions.

While analyzing the mobile number of A-3, the appellant herein, and A-5, it establishes that they were in contact during the relevant period of delivery, i.e., in the month of July, 2021. While analyzing A-2, A-3 and A-4, it also establishes that they were closely associated.

22. It further appears from paragraph-17.7.03 that the investigation revealed that A-3 was closely associated with A-2, A-4 and A-5 and were working as a conduit between A-5 and A-2 in supply chain of arms and ammunitions. It has also been established that A-3 was in process to obtain/purchasing of INSAS rifle from North East.

23. This Court, in view of the aforesaid material gathered in course of investigation against the appellant, is not prima facie satisfied as the material so gathered is untrue.

24. Further, so far as another ground that the case of the appellant is similar to that of Kamendar Singh who has been directed to be released on bail vide order dated 13.10.2022 in Cr. Appeal (DB) No. 611 of 2022 is concerned, it is evident from the charge sheet as also taking reference in the impugned order that the investigating agency has submitted charge sheet only under the provision of Arms Act on the ground of recovery of arms having no connection with the accused persons and by taking note of the said aspect of the matter, the bail had been granted in his favour.

But, herein, the case of the appellant cannot be said to be identically placed since direct complicity of the appellant has been surfaced in course of investigation as per the discussion made hereinabove.

Herein, charge sheet has been submitted also under the offence of UAP Act, 1967, as such, the learned court has refused to extend the benefit of regular bail in favour of the appellant.

25. This Court, therefore, by making assessment of the charges levelled against Avinash Kumar, A-1, is of the view that the case of the appellant, as per the extract of the counter affidavit, is almost identical to that of the case of Avinash Kumar.

26. This Court, on the basis of the basis of the discussion made hereinabove, is of the view that the appellant in connivence with A-1, who happens to be a constable in CRPF and A-9, who happens to be a constable in BSF, has been found involved in supply of arms and ammunitions to the banned terrorist organization and extremist groups.

27. Thus, this Court, prima facie, is of the view that the complicity of the appellant is there.

28. The learned court, after having discussed the fact in entirety, since has passed the impugned order, therefore, based upon the reasons as discussed hereinabove, this Court is of the view that the impugned order requires no interference.

29. Accordingly, the instant appeal fails and stands dismissed.

(Sujit Narayan Prasad, J.)

(Navneet Kumar, J.)

Saurabh/-

A.F.R.