Binod Kumar vs Union Of India Through National ...
2023 Latest Caselaw 3655 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Criminal Appeal (D.B.) No. 201 of 2020
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1. Binod Kumar

2. Chandra Shekhar Kumar

3. Nand Kishore Mahto

4. Rajesh Kumar @ Mohan Kumar ... ... Appellants Versus Union of India through National Investigating Agency ... ... Respondent

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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY : HON'BLE MR. JUSTICE RAJESH KUMAR

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For the Appellant Nos. 1 to 3 : Mr. A. K. Kashyap, Senior Advocate For the Appellant No. 4 : Mr. Sanjeev Kumar, Senior Advocate For the Respondent-NIA : Mr. Amit Kumar Das, Special P.P.

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28/03.10.2023 Heard Mr. A. K. Kashyap, learned senior counsel appearing for the appellant nos. 1, 2 & 3, Mr. Sanjeev Kumar, learned senior counsel for the respondent no. 4 and Mr. A. K. Das, learned Special P.P. appearing for the respondent - NIA.

2. This appeal is directed against the order dated 29.01.2020 passed by the learned Judicial Commissioner cum Special Judge, N.I.A. at Ranchi in connection with Special (N.I.A.) Case No. 2 of 2018 Vide RC- 02/2018/NIA/DLI arising out of Bero P. S. Case No. 67 of 2016 registered for the offences punishable under sections 212, 213, 414, 34 of the Indian Penal Code, Sections 13, 17 & 40 of the Unlawful Activities (Prevention) Act, 1967 and Section 17 of the Criminal Law Amendment Act whereby and whereunder the prayer for bail of the appellant has been rejected .

3. The prosecution case arises out of a written report of Bindeshwari Das, Officer-in-Charge of Bero P.S. to the effect that a secret information was received on 10.11.2016 that the supremo of PLFI for the purpose of depositing his ill-gotten money of proceeds of crime realized as extortion had sent it through his associates for depositing in the Bank account for converting into white through a Safari vehicle bearing registration no. JH01Y-2898 to SBI, Bero Branch. After making a station diary entry and on the basis of the directives of the superior authorities

the informant along with other Police personnel went to SBI, Bero Branch for verification of the said information. It is alleged that at about 3:15P.M. the informant and his associates waited in ambush and in the meantime having seen the Police party 3-4 persons attempted to flee away and while one of the persons was apprehended from the campus of the Bank three other persons were apprehended while boarding on the Safari vehicle bearing registration no. JH01Y2898. On query the apprehended accused persons disclosed their name as Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto and Mohan Kumar. A search was conducted in presence of independent witnesses and one bag having 16 bundles of currency note of Rs. 1,000/- total amounting to Rs. 16,00,000/- was recovered from the possession of Binod Kumar and a mobile phone was also recovered from him. It has been alleged that an amount of Rs. 38,000/- was recovered from the possession of co-accused Chandra Shekhar Kumar along with deposit slips of various dates and one deposit slip of Rs. 16,00,000/- along with two mobile phones. It has also been alleged that total currency of Rs. 9,00,000/- was recovered from the possession of co-accused Nand Kishore Mahto and two mobile phones were recovered from Mohan Kumar @ Rajesh Kumar. None of the apprehended accused persons could show any documents with respect to the recovered currency notes and co-accused Binod Kumar had confessed that PLFI Supremo Dinesh Gope had instructed him over mobile to deposit the extorted amount of Rs. 25,38,000/- in the name of the Petrol Pump of co-accused Chandra Shekhar Kumar. All the articles were seized in presence of independent witnesses and a seizure list was also prepared.

Based on the aforesaid allegations Bero P.S. Case No. 67/2016 was instituted for the offences punishable u/s 212, 213, 414, 34 of the I.P.C., Section 13, 17, 40 of the UA(P) Act, 1967 and Section 17(ii) of the CLA Act. On completion of investigation charge-sheet was submitted against Vinod Kumar @ Binod Kumar, Chandra Shekhar Kumar, Nand Kishore Mahto and Mohan Kumar @ Rajesh Kumar for the offences punishable u/s 212, 213, 414and 34 of the I.P.C., Section 13, 17 and 40 of the UA(P) Act, 1967 and Section 17(ii) of the CLA Act.

Consequent to the order of the Government of India, Ministry of Home Affairs vide Order No. 11011/51/2017-IS, IV dated 16.01.2018, the National Investigation Agency had taken over the investigation of the case and consequently the First Information Report was re-registered as RC-02/2018/NIA/DLI. In course of investigation a supplementary charge-sheet was submitted by the NIA against several accused persons including the appellants.

4. It has been submitted by the learned senior counsels for the appellants that the appellants are neither the members of any extremist organization nor the members of PLFI of which Dinesh Gope is the self- styled supremo. The National Investigating Agency is empowered to make investigation of the scheduled offences as mentioned in the schedule which contains the Unlawful Activities (Prevention) Act. It has been submitted that under the provision of UA(P) Act, terrorist organization and unlawful association have been defined and as per Section 3, a notification has to be issued by the Central Government declaring such association to be unlawful. Further there is no such notification declaring PLFI as an unlawful association. It has been submitted that though some statutory restrictions have been imposed under Section 43-D(5) of the UA(P) Act, but the same per se does not oust the jurisdiction of the Constitutional Court to grant bail on the ground of violation of Part III of the Constitution of India. Reference in this connection has been made to the case of "Union of India Vs. K. N. Nazeeb" reported in (2021) 3 SCC 713. It has been submitted that the appellant no. 1 is a Government Contractor in the Road Construction Department, the appellant no. 2 is the owner of M/s. Rekha Petrol Pump, Bero, the appellant no. 3 is a dealer of fair price shop and the appellant no. 4 works in Delta Company. None of the appellants have any criminal antecedents and they are in custody since 29.01.2020. Learned senior counsels have submitted that there is no evidence to suggest that the appellant are members of PLFI involved in terrorist act as defined in Section 15 of the UA (P) Act or involved in raising or providing or collection of funds for terrorist act from any person. There is also no evidence of hatching a criminal conspiracy in order to attract Section 18 of the UA(P) Act.

5. Mr. A. K. Das, learned counsel appearing for the NIA has submitted that the PLFI is a terrorist gang of which Dinesh Gope @ Kuldeep Yadav is the supremo. Dinesh Gope has as many as 87 criminal antecedents and is involved in various types of criminal activities such as extortion, murder etc. It has been submitted that the appellant no. 1 is a close associate of Dinesh Gope who was involved in routing of cash and ensuring that the ill-gotten cash from Shakuntala Devi (A-13) and Hira Devi @ Anita Devi (A-14). The mobile number of appellant no. 1 revealed that he was in continuous touch with Dinesh Gope. He has also confessed and admitted about his close association with Dinesh Gope and the cash which was seized was generated by way of collection of levy. Mr. Das has submitted that witness - Ram Chandra Gope has exposed the nexus between the appellant no. 1 and the other accused persons regarding the collection of levy and handing it over to Shakuntala Devi which money was ultimately deposited in the bank. His version has been corroborated by the statement of the accused Hira Devi. An account was opened in the name of Anita Devi who is none else but Hira Devi and the appellant no. 1 was shown as a nominee and on several occasions, the appellant no. 1 had deposited cash in the said account. It has also been submitted that the appellant nos. 2 & 3 are actively involved in the illegal transactions as the appellant no. 1 is the brother-in-law of the appellant no. 2 and son-in-law of the appellant no.

3. The appellant nos. 2 & 3 are the owners of Rekha Petrol Pump and the same was used for legitimising the ill-gotten money which are the proceeds of crime. It has been submitted that the appellant no. 4 is similarly involved in such clandestine transactions as would appear from the statement of P - 126 namely, Jaleshwar Lohra. Mr. Das has submitted that from the materials which surfaced during investigation, a prima- facie case is made out against the appellants and the embargo under Section 43-D (5) of the UA(P) Act will operate and therefore, this appeal is liable to be dismissed.

6. Mr. A. K. Kashyap, learned senior counsel appearing on behalf of the appellant nos. 1, 2 & 3 in reply has submitted that if a person with whom the appellant nos. 2, 3 & 4 have conspired and who has not been made an accused under Section 18 of the UA(P) Act, they

cannot be proceeded against under Section 18 of the UA(P) Act. The impugned order has been read over by Mr. Kashyap, who has submitted that no reasons have been assigned and no satisfaction recorded as to why Section 43-D (5) of the UA(P) Act will prevent the appellants from being granted bail.

7. The appellant no. 1 has been referred to in the supplementary charge-sheet submitted by the NIA as A-1. The appellant nos. 2, 3 & 4 have been referred to as A-2, A-3 and A-4 respectively. The role of the appellants has been depicted in paragraph 17.7 of the supplementary charge-sheet and the same reads as follows:

"17.7 Role and activities of the accused A-1, A-2, A-3, A-4 & A-6:- Role of Vinod Kumar @ Binod Kumar (A-1): Investigation has established that Vinod Kumar @ Binod Kumar (A-1) criminally conspired with Dinesh Gope (A-6), Self styled Chief of terrorist gang PLFI and other associates A-2, A-3 & A-4 and as per directions received by A-1 for channelizing the extorted levy amount into legitimate means. A-1 after taking government contracts, facilitated PLFI, a proscribed terrorists gang in channelizing the collected levy/extorted amount by depositing it into the bank account of his brother-in-law (Sala) namely Chandrashekhar Kumar (A-2), owner/proprietor of M/s. Rekha Petroleum at Bero (Ranchi). A-1 was knowingly holding the huge unaccounted cash which were derived or obtained by PLFI operatives from commission of terrorist act (collecting levy/extortion amount) through threat to life and raised funds for PLFI and for Dinesh Gope (A-6). Further A-1 along with the association of A-2, A-3 and A-4 was trying to deposit the extorted/levy amount in the bank account of A-2 with intent to convert it into legitimate means during demonetization of Indian currency notes of Rs. 500/- and 1000/- in November 2016.

Role of Chandrashekhar Kumar (A-2): Investigation has established that as per the criminal conspiracy hatched by the accused A-1 along with A-2, A-3 & A-4 to facilitate the Self styled Chief of PLFI (A-6) for channelizing the collected levy amount by depositing it into the bank account of M/s. Rekha Petroleum, owned by A-2. A-2 knowingly held the huge unaccounted cash which was derived or obtained by PLFI operatives from commission of terrorist act (levy, extortion) or acquired through the terrorist fund by threat to life. A-2 with the association of A-1, A-3 and A-4 was trying to deposit the huge extorted/levy amount of PLFI, in the bank account of M/s. Rekha Petroleum,

owned by him with intent to convert the extorted money through legitimate means.

Role of Nand Kishore Mahto (A-3): Investigation has established that as per the criminal conspiracy hatched by the accused A-1 along with A-2, A-3 & A-4 to facilitate the self styled Chief of PLFI (A-6) for channelizing the collected levy amount by depositing it into the bank account of M/s. Rekha Petroleum, owned by his son and accused A-2. A-3 knowingly held the huge unaccounted cash which was derived or obtained by PLFI operatives from commission of terrorist act (levy, extortion) or acquired through the terrorist fund, by threat to life. A-3 with the association of A-1, A-2 and A-4 was trying to deposit the huge extorted/levy amount of PLFI, into the bank account of M/s. Rekha Petroleum owned by his son (A-2), with intent to convert the extorted money through legitimate means.

Role of Mohan Kumar @ Rajesh Kumar (A-4): Investigation has established that as per the criminal conspiracy hatched by the accused A-1 along with A-2 and A-3, A-4 agreed to facilitate the Self styled Chief of PLFI (A-6) for channelizing the collected levy amount by depositing it into the bank account of M/s. Rekha Petroleum, owned by his friend Chandrashekhar Kumar (A-2) and by other legitimate means. Before the arrest of A-4, he was also having telephonic conversation with others regarding depositing huge unaccounted cash into the bank account of Rekha Petroleum. A-4 knew the fact that the huge cash held by A-1, A-2 & A-3 was derived or obtained by PLFI operatives from commission of terrorist act (levy, extortion) or acquired through the terrorist fund, by threat to life. A-4 faciliated A-1, A-2 and A-3 and hatched criminal conspiracy in depositing the extorted/levy amount into the bank account of M/s. Rekha Petroleum, owned by (A-2) with intent to convert the extorted money into legitimate means."

8. The common thread which runs through the allegations against the appellants are of being involved in criminal conspiracy with the other accused persons more particularly PLFI supremo - Dinesh Gope into channelising the extorted money into legitimate means. What would further be apparent is that the appellants were acting as conduits in channelising such ill-gotten money. There is no allegation that the appellants were involved in extorting levy by issuing threats. Mr. A. K. Das, learned counsel for the NIA in course of his submission has referred

to the case of "NIA v. Zahoor Ahmad Shah Watali" reported in (2019) 5 SCC 1, in which it has been held as follows:

"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. Nevertheless, we may take guidance from the exposition in Ranjitsing Brahmajeetsing Sharma [Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294 : 2005 SCC (Cri) 1057] , wherein a three-Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail. In paras 36 to 38, the Court observed thus : (SCC pp. 316-17) "36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the court to record such a finding? Would there be any machinery available to the court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?

37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of

materials on record only for grant of bail and for no other purpose.

38. We are furthermore of the opinion that the restrictions on the power of the court to grant bail should not be pushed too far. If the court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. ... What would further be necessary on the part of the court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea."

And again in paras 44 to 48, the Court observed : (SCC pp. 318-20) "44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of Mcoca, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.

45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.

46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like Mcoca having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected

against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.

47. In Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977] this Court observed : (SCC pp. 537- 38, para 18) '18. We agree that a conclusive finding in regard to the points urged by both the sides is not expected of the court considering a bail application. Still one should not forget, as observed by this Court in Puran v. Rambilas [Puran v. Rambilas, (2001) 6 SCC 338 : 2001 SCC (Cri) 1124] : (SCC p. 344, para 8) "8. ... Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. ... That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated."

We respectfully agree with the above dictum of this Court. We also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail. Therefore, we are not in agreement with the argument addressed by the learned counsel for the accused that the High Court was not expected even to indicate a prima facie finding on all points urged before it while granting bail, more so in the background of the facts of this case where on facts it is established that a large number of witnesses who were examined after the respondent was enlarged on bail had turned hostile and there are complaints made to the court as to the threats administered by the respondent or his supporters to witnesses in the case. In such circumstances, the court was duty-bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail. The non-consideration of these vital facts as to the allegations of threat or inducement made to the witnesses by the respondent during the period he was on bail has vitiated the conclusions arrived at by the High Court while granting bail to the respondent. The other ground apart from the ground of incarceration which appealed to the High Court to grant bail was the fact that a large number of witnesses are yet to be examined and there is no likelihood of the trial coming to an end in the near future. As stated hereinabove,

this ground on the facts of this case is also not sufficient either individually or coupled with the period of incarceration to release the respondent on bail because of the serious allegations of tampering with the witnesses made against the respondent.'

48. In Jayendra Saraswathi Swamigal v. State of T.N. [Jayendra Saraswathi Swamigal v. State of T.N., (2005) 2 SCC 13 : 2005 SCC (Cri) 481] this Court observed : (SCC pp. 21-22, para 16) '16. ... The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Jagjit Singh [State v. Jagjit Singh, (1962) 3 SCR 622 : AIR 1962 SC 253 : (1962) 1 Cri LJ 215] and Gurcharan Singh v. State (UT of Delhi) [Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] and basically they are -- the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.'"

24. A priori, the exercise to be undertaken by the Court at this stage--of giving reasons for grant or non-grant of bail--is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise.

25. From the analysis of the impugned judgment [Zahoor Ahmad Shah Watali v. NIA, 2018 SCC OnLine Del 11185] , it appears to us that the High Court has ventured into an area of examining the merits and demerits of the evidence. For, it noted that the evidence in the form of statements of witnesses under Section 161 are not admissible. Further, the documents pressed into service by the investigating agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16-8-2017 (para 61 of the impugned judgment). Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 CrPC, on the specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge-sheet already filed against the respondent is, in our opinion, in complete disregard of the duty of the Court 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 CrPC) and other material gathered by the investigating agency during investigation.

26. Be it noted that the special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. To wit, soon after the arrest of the accused on the basis of the FIR registered against him, but before filing of the charge-sheet by the investigating agency; after filing of the first charge- sheet and before the filing of the supplementary or final charge-sheet consequent to further investigation under Section 173(8) CrPC, until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses, etc. However, once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case."

9. The judgment rendered in the case of "NIA v. Zahoor Ahmad Shah Watali" (supra) was considered by the Hon'ble Superme Court in the case of "Sudesh Kedia v. Union of India" (2021) 4 SCC 704, and it was observed therein that it was the bounden duty of the court while considering the grant of bail under Section 43-D (5) of the UA(P) Act and to apply this law 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. The judgment rendered in "NIA v. Zahoor Ahmad Shah Watali" (supra) has also been considered in the case of "Union of India Vs. K. A. Najeeb" reported in (2021) 3 SCC 713, wherein it has been held as follows:

"16. As regards the judgment in NIA v. Zahoor Ahmad Shah Watali [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] , cited by the learned ASG, we find that it dealt with an entirely different factual matrix. In that case, the High Court [Zahoor Ahmad Shah

Watali v. NIA, 2018 SCC OnLine Del 11185] had reappreciated the entire evidence on record to overturn the Special Court's conclusion of their being a prima facie case of conviction and concomitant rejection of bail. The High Court had practically conducted a mini-trial and determined admissibility of certain evidence, which exceeded the limited scope of a bail petition. This not only was beyond the statutory mandate of a prima facie assessment under Section 43-D(5), but it was premature and possibly would have prejudiced the trial itself. It was in these circumstances that this Court intervened and cancelled the bail.

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."

10. The judgment rendered in the case of "Union of India Vs. K. A. Najeeb" (supra) has been followed in the case of "Ashim @ Asim Kumar Haranath Bhattacharya @ Asim Harinath Bhattacharya @ Aseem Kumar Bhattacharya Vs. NIA" reported in (2022) 1 SCC 695, wherein it has been held as follows:

"9. We have to balance the nature of crime in reference to which the appellant is facing a trial. At the same time, the period of incarceration which has been suffered and the likely period within which the trial can be expected to be completed, as is informed to this Court that the statement of PW 1/de facto complainant has still not been completed and there are 298 prosecution witnesses in the calendar of witness although the respondent has stated in its counter- affidavit that it may examine only 100 to 105 witnesses but indeed may take its own time to conclude the trial. This fact certainly cannot be ignored that the appellant is in custody since 6-7-2012 and has completed nine-and-half years of incarceration as an undertrial prisoner.

10. This Court has consistently observed in its numerous judgments that the liberty guaranteed in Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial is imperative and the undertrials cannot indefinitely be detained pending trial. Once it is obvious that a timely trial would not be possible and the accusedhas suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge him on bail.

11. Deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of justice is part of human rights and denial of speedy justice is a threat to public confidence in the administration of justice."

11. The appellants have remained in custody since 29.01.2020 and they have also no criminal antecedents. It also appears that the trial has not yet been concluded, though this court is aware that in the case of one of the co-accused namely, Navinbhai Jayantibhai Patel, the prayer for bail of the said accused was rejected by this court in Criminal Appeal (DB) No. 556 of 2020, but it also appears that his prayer for bail was rejected at that stage with a direction to the learned trial court to conclude the trial expeditiously and preferably within a period of one year. As noted in the case of "Union of India Vs. K. A. Najeeb" (supra), the appellant is in the custody and there is unlikelihood of the trial being

completed any time soon was one of the primary point for consideration for grant of bail in the said case.

12. As noted above, the appellant has remained in custody for about 3 years and 8 months and the trial till date has not been concluded. Therefore, on consideration of the aforesaid facts along with the period of incarceration of the appellants we are inclined to allow this appeal.

13. Accordingly, the impugned order dated 29.01.2020 passed by the learned Judicial Commissioner cum Special Judge, N.I.A. at Ranchi in connection with Special (N.I.A.) Case No. 2 of 2018 Vide RC- 02/2018/NIA/DLI arising out of Bero P. S. Case No. 67 of 2016 is hereby set aside and the appellants above named are directed to be released on bail on furnishing bail bond of Rs. 10,000/- (Ten Thousand) each with two sureties of the like amount each, to the satisfaction of the learned Judicial Commissioner cum Special Judge, N.I.A. at Ranchi in connection with Special (N.I.A.) Case No. 2 of 2018 Vide RC-02/2018/NIA/DLI arising out of Bero P. S. Case No. 67 of 2016 with a further direction that the appellants shall remain physically present before the learned trial court on each and every date till the conclusion of the trial.

14. This appeal is allowed.

(Rongon Mukhopadhyay, J.)

(Rajesh Kumar, J.)

R. Shekhar Cp 3