Arun Kumar Singh @ Fauji vs Union Of India Through National ...
2024 Latest Caselaw 1456 Jhar

Jharkhand High Court

Arun Kumar Singh @ Fauji vs Union Of India Through National ... on 13 February, 2024

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr. Appeal (DB) No. 1280 of 2022
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Arun Kumar Singh @ Fauji, aged about 49 years Son of Mundrika Singh, resident of village Sahapur, P.O. Sonpur, P.S. Sonpur, District Saran (Bihar). ... ... Appellant Versus Union of India through National Investigation Agency having its office at N.I.A Camp office, Quarter No.305, Sector-II, P.O. Dhurwa, P.S. Dhurwa, District Ranchi, Jharkhand ... ... Respondent

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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellant : Mr. Indrajit Sinha, Advocate Mr. Ajay Kumar Sah, Advocate Mr. Awinash Kumar, Advocate For the Res-UOI : Mr. Amit Kumar Das, Advocate

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th Order No. 09/Dated 13 February, 2024

Per Sujit Narayan Prasad, J:

Prayer

1. The instant criminal appeal has been preferred on behalf

of the appellant under Section 21(4) of the National

Investigation Agency Act, 2008 for setting aside the order

dated 10.08.2022 passed in Misc. Cr. Application No. 1491 of

2022 by learned Additional Judicial Commissioner-XVI-cum-

Special Judge, NIA, Ranchi whereby and whereunder the

prayer for bail, in connection with Special(NIA) Case No.04 of

2021 corresponding to FIR No. R.C. No.04/2021/NIA/RNC,

arising out of A.T.S. Ranchi P.S. Case No. 01/2021, has been

rejected.

2. The prosecution case is based on the typed report of sub

inspector Vishal Pandey of ATS. In his typed report SI Vishal

Pandey alleged that while investigation of the Tandwa PS case no 132/2021 he came to know that Avinash Kumar Sharma @

Chunnu and few other persons are supplying arms and

ammunitions to miscreants and extremist groups.

3. Accordingly, officer in- charge ATS police station entered

station diary 8/2021 dated 12.11.2021 and after giving

information to the superior police officials, he was being

handed over matter for certification, one team was constituted.

He along with team members proceeded to certify the fact on

12.11.2021. On 13.11.2021, Informant with his team

members reached Imamganj police station and communicated

information and requested for co-ordination, accordingly,

officer in-charge Imamganj and STF team of Bihar proceeded

for Imamganj market where they met Avinash Kumar Sharma

@ Chunnu resident of Parasia PS Imamganj District- Gaya and

he was accompanied for inquiry.

4. During inquiry Avinash Kumar Sharma @ Chunnu

disclosed that During inquiry Avinash Kumar Sharma @

Chunnu disclosed that he along with Rishi Kumar used to

provide arms and ammunitions to members of CPI Maoists

organisation and other miscreant's gang. They were being

assisted in illegal trade by Pankaj Kumar Singh. Avinash

Kumar Sharma @ Chunnu further informed that in the month

of January 2020 Sanjay Kumar Singh who works as contractor

in Kharsawan, and on the request of Sanjay Kumar Singh they

provided 250 cartridges of Insas rifle to Moshahid for which

Moshahid had paid Rs.1,75,000/ to them. Recently they had provided arms to Vishal Mishra who kept the said arms in his

house which can be recovered. He also admitted that he and

Rishi Kumar through unknown persons had arranged 450

cartridges for supply to Aman Sao. But due to non-

communication from side of Aman Sao they hide 450

cartridges under Ormanjhi police station near Sheikh Bhikhari

Samadhi Asthal, which can also be recovered.

5. Accordingly, informant recorded confessional statement

of Avinash Kumar Sharma @ Chunnu and his team alongwith

members of Imamganj PS had gone to certify this information

to village Chuwabar where officer in-charge Imamganj raided

house of Vishal Mishra from where one country made loaded

pistol was recovered for which Imamganj PS case no 183/2021

dated 13.11.2021 under section 25(1- b) a/26 of Arms Act was

registered. The team further proceeded with Avinash Kumar

Sharma @ Chunnu to Salimpur from Imamganj police station

where they received cooperation from Salimpur police. Team

raided house of Rishi Kumar at village Benipur.

6. Rishi Kumar was found in his house who disclosed that

he, Avinash Kumar Sharma @ Chunnu, Pankaj Kumar are

supplying arms and ammunition to CPI Maoist and criminal

gang. Rishi Kumar also accepted that in the month of January

2020, 200 cartridges of Insas rifle at the rate of Rupees 700/-

per cartridge was supplied to Sanjay Kumar Singh, who

further supplied the same to MCC members through Moshahid

Khan after taking Rs.175000/-(One lakh seventy five thousand). He also admitted that he and Avinash Kumar

Sharma @ Chunnu through one unknown person was going to

supply 450 cartridges to Aman Sao, since Aman Sao did not

reply, the cartridges were hide near Sheikh Bhikhari Samadhi

Asthal which can be recovered.

7. Accordingly, police team and STF proceeded from

Salimpur. At about 8 AM, they reached Chutupalu Sheikh

Bhikhari Samadhi Asthal, on 14.11.2021, informant did not

find any independent witness there, in presence of police

witnesses, ATS Team recovered one soil colour bag marked

"double Pari" Egmark branch Kachhi Ghani sarso tel and on

bottom purchaser Sri Shakun Oil limited Brij Industrial area

Bharatpur Rajasthan mobile no 9462929397 written, was

taken out. On search 450 piece of 5.56 mm cartridge was

recovered, out of which KF13 5.56 mm written 135 live

cartridges, KF 04 5.56 mm written four live cartridges, KF 06

5.56 written two live cartridges and of V 5.56 mm written 175

piece of live cartridge, OF V 12 5.56 mm written 124 live

cartridge, OF V 10 5.56 mm written 9 piece of live cartridge,

OF V 5 5.56 mm written one piece of live cartridge and one

Samsung Galaxy mobile J600 G/DS 64 GB of Avinash Kumar

Sharma @ Chunnu with SIM NO 9472348219 was seized.

Accordingly, seizure list was prepared, copy of seizure list

was supplied to witnesses, accused persons Avinash Kumar

Sharma @ Chunnu and Rishi Kumar.

8. Accordingly, FIR being A.T.S. Ranchi P.S. Case No.

01/2021, was registered under Sections 120B of the Indian

Penal Code(IPC), Section 25(1-b), 26, and 35 of the Arms Act,

Section 17 of the CLA and Section 13, 19, 20 and 21 of UA(P)

Act against Avinash Kumar @ Chunnu Sharma (A-1), Rishi

Kumar(A-2), Pankaj Kumar (A-3), Sanjay Kumar Singh,

Mujahid Khan, Aman Sahu @ Aman Saw and one unknown

Fuji (residence of Sonepur).

9. The Ministry of Home Affairs (MHA), Government of

India, in view of the gravity of the offence and its cross border

and international ramification, issued orders in exercise of

power vested under Section 6(5) read with section 8 of the NIA

Act 2008 and directed the NIA to take up the investigation of

the aforesaid case.

10. On the direction of the Ministry of Home Affairs, NIA re-

registered the case being NIA Case no 04/2021/NIA-RNC

dated 09.12.2021 under section 120B of IPC Section 25(1-b),

26, and 35 of the Arms Act, Section 17 of the CLA and Section

13, 19, 20 and 21 of UA(P) Act 1967.

11. It appears from the record that the name of present

appellant has come on the basis of the confessional statement

of the co-accused persons. In his confessional Rishi Kumar

accepted that people of Maharashtra also used to supply arms

and ammunitions to the members of CPI Maoist gang. On the

confessional statement of Avinash Kumar Sharma @ Chunnu

and Rishi Kumar, Pankaj Kumar Singh and Kamlendra Singh were arrested, they further confessed that they got proximity

with Aman Sahu gang.

12. Further on the basis of confessional statement of co-

accused persons present appellant Arun Kumar Singh @ Fauzi

resident of Sahpur PS Sonpur District Saran Chhapra was

arrested, as such, prayer for bail was made but the same has

been rejected vide order dated 10.08.2022 against which the

present appeal has been filed.

Submission of the learned counsel for the appellant:

13. Mr. Indrajit Sinha, learned counsel for the appellant has

assailed the impugned order, by which the prayer for bail of

the appellant has been rejected, on the following grounds:

(i) There is no specific attributability of the appellant in

commission of offence said to be committed under the

Schedule offence as per the allegation leveled in the FIR

and nothing substantial has come in course of

investigation against the appellant in the charge-sheet

also.

(ii) It has been submitted that that from perusal of charge-

sheet, it would be evident that save and except the

confessional statement of co-accused persons nothing

has come so as to connect the complicity of the appellant

in the alleged commission of crime or even involvement in

conspiracy said to attract the offence under the Schedule

offences.

(iii) Ground has been taken about the period of custody, as

also there is no likelihood of trial to be concluded at an

early date and hence by taking into consideration the

said fact, submission has been made that the impugned

order may be interfered with.

(iv) The NIA has not established through its investigation as

to what terrorist act was committed by the appellant and

thus no offence under Unlawful Activities (Prevention) Act

can be said to be made out.

(v) The learned court failed to appreciate and consider that

the Appellant has not been found to be a member of any

terrorist organization, nor in any manner taken part in

any decision-making process of the Naxal organization,

thus the appellant cannot be brought within the ambit

and scope of Act, 1967.

(vi) No incriminating articles has been recovered from the

possession of the appellant and the appellant is not

named in the FIR.

15. Learned counsel for the appellant, on the aforesaid

premise, has submitted that the learned trial Court ought to

have considered that aspect of the matter, while considering

the prayer for regular bail, but having not been considered,

therefore, the impugned orders need to be interfered with. Submission of the learned counsel for the respondent

16. While on the other hand, Mr. Amit Kumar Das, learned

counsel appearing for the National Investigating Agency (NIA)

has defended the impugned order by taking following grounds:

(i) There is specific attributability against the appellant, as

would be evident from various paragraphs of the charge-

sheet i.e., paragraph nos. 17.4.4, 17.5.5, 17.6.3, 17.6.5,

and 17.7.02.

(ii) One of the co-accused persons namely, Avinash Kumar @

Chunnu Sharma to whom the appellant was involved in

supplying arms and ammunitions, his prayer for bail has

been rejected vide order dated 17.01.2023 passed in Cr.

Appeal (DB) No. 1120 of 2022.

17. Mr. Das, learned counsel for the respondent-NIA based

upon the aforesaid grounds has submitted that since the

nature of allegation leveled against the appellant is very grave

and bail of identically placed accused persons to whom the

appellant used to supply arms have already been rejected,

therefore, the present appeal is also fit to be dismissed.

Analysis

18. We have heard the learned counsel for the parties and

considered the finding recorded by learned Court in the

impugned orders as also the charge-sheet.

19. This Court, before proceeding to examine as to whether

the appellant has been able to make out a prima facie case for

enlarging him on bail, deems it fit and proper to discuss some settled proposition of law and the relevant provisions of

Unlawful Activities (Prevention) Act, 1967 (hereinafter referred

to as Act, 1967) which is required to be considered herein.

20. The main objective of the Act, 1967 is to make powers

available for dealing with activities directed against the

integrity and sovereignty of India. As per Preamble, Act, 1967

has been enacted to provide for the more effective prevention

of certain unlawful activities of individuals and associations

and dealing with terrorist activities and for matters connected

therewith. Therefore, the aim and object of enactment of

U.A.(P) Act is also to provide for more effective prevention of

certain unlawful activities.

21. To achieve the said object and purpose of effective

prevention of certain unlawful activities the Parliament in its

wisdom has provided that where an association is declared

unlawful by a notification issued under Section 3, a person,

who is and continues to be a member of such association shall

be punishable with imprisonment for a term which may extend

to 2 years, and shall also be liable to fine.

22. Clause (m) of Section 2 of the 1967 Act defines "terrorist

organization". It is defined as an organization listed in the First

Schedule. CPI (Maoist) has been listed at Item no. 34 in the

First Schedule. Chapters III onwards of the 1967 Act

incorporate various offences. Chapter IV has the title

"punishment for terrorist act". Clause (k) of Section 2 provides

that "terrorist act" has the meaning assigned to it under Section 15 and the terrorist act includes an act which

constitutes an offence within the scope of, and as defined in

any of the treaties specified in the Second Schedule.

23. Further section 10(a)(i) of Act, 1967 provides that where

an association is declared unlawful by a notification issued

under Section 3 which has become effective under sub-section

(3) of that Section, a person, who is or continues to be a

member of such association shall be punishable with

imprisonment for a term which may extend to two years, and

shall also be liable to fine, therefore, so long as Section 10(a)(i)

stands a person who is or continues to be a member of such

association shall be liable to be punished.

24. As per mandate of section 13 of the Act, 1967 who takes

part in or commits, or advocates, abets, advises or incites the

commission of, any unlawful activity, shall be punishable with

imprisonment for a term which may extend to seven years,

and shall also be liable to fine.

25. At this juncture, it will be purposeful to discuss the core

of Section 43D(5) of the Act, 1967 which 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.

26. The reason of making reference of the provision of

Section 43D(5) of the Act that in course of investigation, the investigating agency has discovered the material against the

appellant attracting the offence under various Sections of

UA(P) Act. Since, this Court is considering the issue of bail

based upon now also under the various sections of UA(P) Act

and hence, the parameter which has been put under the

provision of Section 43D(5) of the Act is also required to be

considered.

27. 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 the case of

National Investigation Agency Vrs. Zahoor Ahmad Shah

Watali, reported in [(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...."

28. It is, thus, evident from the proposition laid down by the

Hon'ble Apex Court in the case of National Investigation

Agency Vrs. Zahoor Ahmad Shah Watali (Supra) that 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.

29. Further, the Hon'ble Apex Court by setting out

propounding the law in the same case of National

Investigation Agency v. Zahoor Ahmad Shah Watali

(supra), has observed that the elaborate examination or

dissection of the evidence is not required to be done at this

stage and 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. For ready reference paragraph 24 and 25 of the

aforesaid judgment is being quoted herein under:-

"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, 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 Cr.P.C.) and other material gathered by the investigating agency during investigation."

30. Further, it is settled proposition of law that at the stage

of granting or non-granting of the bail, 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 said offence or otherwise and the elaborate examination or

dissection of the evidence is not required to be done at this

stage. Reference in this regard may be made to the Judgment

rendered by the Hon'ble Apex Court in the case of Ranjitsing

Brahmajeetsing Sharma Vrs. State of Maharashtra,

reported in (2005) 5 SCC 294. For ready reference, the

following paragraph of the aforesaid Judgment is being

referred as under:

"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."

31. Further, it is the duty of the Court to record its opinion

that the accusation made against the accused concerned is

prima facie true or otherwise and such 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 charge-

sheet and other material gathered by the investigating agency

during investigation.

32. The hon'ble Apex Court in a very recent judgment

rendered in Gurwinder Singh Vs State of Punjab and

Another reported in 2024 SCC OnLine SC 109 while taking

in to consideration of the judgment as rendered in the

National Investigation Agency v. Zahoor Ahmad Shah

Watali (supra) has observed that, the proviso to Sub-section

(5) of Section 43D puts a complete embargo on the powers of

the Special Court to release an accused on bail and lays down

that if the Court, 'on perusal of the case diary or the report

made under Section 173 of the Code of Criminal Procedure', is

of the opinion that there are reasonable grounds for believing

that the accusation, against such person, as regards

commission of offence or offences under Chapter IV and/or

Chapter VI of the UAP Act is prima facie true, such accused

person shall not be released on bail or on his own bond.

33. The Hon'ble Apex Court further observed that the

conventional idea in bail jurisprudence vis-à-vis ordinary

penal offences that the discretion of Courts must tilt in favour

of the oft-quoted phrase - 'bail is the rule, jail is the exception'

- unless circumstances justify otherwise - does not find any

place while dealing with bail applications under UAP Act and

the 'exercise' of the general power to grant bail under the UAP

Act is severely restrictive in scope.

34. In the aforesaid context it has further been observed by

the Hon'ble Supreme Court that the courts are, therefore,

burdened with a sensitive task on hand and in dealing with bail applications under UAP Act, the courts are merely

examining if there is justification to reject bail and the

'justifications' must be searched from the case diary and the

final report submitted before the Special Court.

35. In the aforesaid background the Hon'ble Apex Court has

held that the test for rejection of bail is quite plain and Bail

must be rejected as a 'rule', if after hearing the public

prosecutor and after perusing the final report or Case Diary,

the Court arrives at a conclusion that there are reasonable

grounds for believing that the accusations are prima facie true.

It has further been observed that it is only if the test for

rejection of bail is not satisfied - that the Courts would

proceed to decide the bail application in accordance with the

'tripod test' (flight risk, influencing witnesses, tampering

with evidence).

36. For ready reference following paragraphs of the aforesaid

Judgment are being quoted herein under:

"27. A bare reading of Sub-section (5) of Section 43D shows that apart from the fact that Sub-section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail. It lays down that if the Court, 'on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure', is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond. It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43D(5) of the UAP Act. In that sense, the language of bail limitation adopted therein remains unique to the UAP Act.

28. The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)- 'shall not be released' in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released' - suggests the intention of the Legislature to make bail, the exception and jail, the rule.

29. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The 'justifications' must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, 'prima facie' standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of 'strong suspicion', which is used by Courts while hearing applications for 'discharge--"

37. In this background, the test for rejection of bail is quite

plain. Bail must be rejected as a 'rule', if after hearing the

public prosecutor and after perusing the final report or Case

Diary, the Court arrives at a conclusion that there are

reasonable grounds for believing that the accusations are

prima facie true. It is only if the test for rejection of bail is not

satisfied that the Courts would proceed to decide the bail

application in accordance with the 'tripod test' (flight risk,

influencing witnesses, tampering with evidence). This

position is made clear by Sub-section (6) of Section 43D,

which lays down that the restrictions, on granting of bail

specified in Sub-section (5), are in addition to the restrictions

under the Code of Criminal Procedure or any other law for the

time being in force on grant of bail.

38. The Hon'ble Apex Court in the aforesaid judgment after

textual reading of Section 43D(5) UAP Act, has formulated the guideline which was summarized in the form of a twin-prong

test. For ready reference the relevant paragraph is being

quoted herein under:

"31. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test:

1) Whether the test for rejection of the bail is satisfied?

1.1 Examine if, prima facie, the alleged 'accusations' make out an offence under Chapter IV or VI of the UAP Act 1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;

2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC ('tripod test')?"

39. This Court, on the basis of the abovementioned position

of law and the factual aspect, as has been gathered against the

appellant is proceeding to examine as to whether the

accusation against the appellant is prima facie true as

compared to the opinion of accused not guilty by taking into

consideration the material collected in course of investigation.

40. It is evident that after investigation NIA submitted

charge-sheet against eleven accused persons including present

appellant shown him as (A-5), under section 120B of IPC

(substantively), section 25 (1AA), 26 and 29 of Arms Act and

section 13, 18, 20 and 39 of the UA(P) Act.

41. Accordingly, after obtaining prosecution sanction from

Ministry of Home affairs u/s 45(1) of UA(P) Act vide memo no

F. No.11011/73/2021/2021/NIA dated 3.12.2021 Govt of

India Ministry of Home Affairs CTCR division dated 10.5.2022

and prosecution sanction u/s 120B of IPC (substantively), section 25 (1AA), 26 and 29 of Arms Act and section 13, 18, 20

and 39 of the UA(P) Act against present appellant.

42. From perusal of record, it is evident that offences

established against appellant/accused in the charge sheet has

been mentioned in paragraph 17.4.4, 17.5.5, 17.6.5 and

17.7.05. which reads 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 (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 associate in the instant crime. A-5 disclose 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 of 409 (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/EPC of different calibers & detonators were seized by BSF. As disclosed by assured A-5, the visitor registor 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.

17.5.5 Arun Kumar Singh (4-5):- Investigation has revealed that, during the year 2008- 09 Accused A-5, Constable of BSF came in contact with accused A-9 of 116 BN, BSF who was performing the duty of Magazine and Kote NCO in BSF. Investigation has established that on following occasions accused A-9 had supplied ammunition of different calibers to accused A- 5. --- 17.6.5 Collection of CDR, IPDR & its analysis-During the investigation CDR, & IPDRs data pertaining to accused persons/suspects were collected from the respective service providers. Analysis of CDR of A-5 and A-9 established that both were in contact with each other. A-5 & A-9 were also exchanging calls during July 2021. Apart from thar Call ID location of the mobile numbers of A-5 & A-9 were also found in Firozpur, Punjab, which corroborated the facts that both the above accused had a meeting at Firozpur, for taking the delivery of ammunitions during July, 2021. Analysis of mobile number of A-3 and A-5 established that they were in contact during the relevant period of delivery. Analysis of the contact numbers of A-2, A-3 and A-4 established that they were closely associated. It is also established that A-1 was in contact with A-2 and A-2 was in contact with A-11 and A-12.

17.7.05. Role and offences established against accused Arun Kumar Singh @ Fauji (A-5): During the investigation, it is established that accused A-5 was an employee of 116 BN, BSF and was actively involved in illegal supply of arms and ammunition to the terrorist gangs. A-5 also came in contact with A-3 and supplied huge quantity of ammunition to A-2 through A-3, for further supplying the same to the armed cadres of CPI (Maoist). On his disclosure, a total of 909 (Nine Hundred nine) live ammunitions of different caliber were seized from his house. Therefore, as per averments made in pre-para, it is established that A-5 hatched criminal conspiracy for the commission of unlawful activities through assisting the armed cadres of (Maoist) and terrorist gangs through supply of ammunitions. Thereby, A-5 committed offences u/s 120 B of the IPC (Substantively), Section 411 IPC Section 25 (1AA), 26 and 29 of Arms Act, Sections 13, 18, 20 & 39 of the UA (P) Act 1967 (as amended)."

43. Therefore, as per aforesaid paragraphs it is evident that

in his confessional statement appellant confessed that he was

working in Boarder security force and during his service

tenure he came in contact with Kartik Behra(A-9) who was

also working in BSF 116 battalion as ammunition MCU. A-9

started saving unused ammunitions showing them as used

and further he started providing the same to Arun Singh @

Fauzi,(appellant) who started supplying it to others accused

persons.

44. It is evident from the counter affidavit based upon the

material collected in course of investigation as in the charge-

sheet that It is evident from para 17.5 of the chargesheet that

the present appellant Arun Kumar Singh @ Fauji during year

2008 as constable of BSF came in contact with accused A-9 of

116 BN BSF who was performing the duty of Magazine and

Kote NCO in BSF. Investigation has established that on

different occasions accused A-9 had supplied ammunitions of

different calibers to petitioner accused A-5. It has come in

investigation that Accused A-5 was regularly visiting

Rajasthan, Firozpur and Jalandhar and Jammu by road/ train

and used to get the consignments of ammunitions from accused A-9, the same is also corroborated by the entry

register of the hotels where they used to stay.

45. During the course of investigation it has come at Para

17.6.5, of the charge-sheet that the CDR and IPDR data

pertaining to accused persons were collected from the

respective service providers and analysis of CDR of A-5 and A-

9 established that both were in contact with each other and

exchanging calls during July 2021, and apart from said ID

locations of the mobile no of A-5 and A-9 were also found in

Firojpur, Punjab, which corroborated the facts that both the

accused persons had a meeting at Firojpur for taking delivery

of the ammunitions during July 2021.

46. In course of investigation, it has been revealed that A-5

i.e the present appellant was an employee of 116 BN BSF and

was actively involved in illegal supply of arms and

ammunitions to the terrorist gangs. Further he came in

contact with A-3 and supplied huge quantity of ammunitions

to A-2 through A-3 for further supplying the same to the

armed cadres of CPI Maoist and on his disclosure total 909

live ammunitions of different caliber were seized from his

house.

47. As such prima-facie it appears that accusation against

present appellant is not untrue.

48. The facts disclosed in the charge-sheets were duly

corroborated during course of investigation by way of

statement of witnesses and thereby, prima facie the allegation as made against the accused/ petitioner appears to be true.

49. The argument has emphatically been made on behalf of

appellant that that there is no specific attributability of the

appellant in commission of alleged offence.

50. In the aforesaid context It requires to revisit the Statutory

provision especially Section 43D (5) of Act 1967, which

requires consideration before looking to the legality and

propriety of the order refusing to grant of regular bail.

51. 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.

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

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

53. The Section 43-D(5) is having the condition for grant of

bail that is if as per allegation leveled against the concerned

the same is found to be prima facie untrue then by recording

reason to that effect the person concerned can be enlarged on

bail but contrary to the same if the concerned court comes to the conclusion that the allegation leveled against the

concerned is prima facie true then the appeal is to be rejected.

54. It is evident from aforesaid paragraphs of the charge-

sheet wherein specific attributability has come in course of

investigation against the present appellant and as per

averments made in pre-para, its prima-facie appears that A-5

i.e. present appellant hatched criminal conspiracy for the

commission of unlawful activities through assisting the armed

cadres of (Maoist) and terrorist gangs through supply of

ammunitions.

55. Further, it has come on record that the release of

appellant on bail would adversely affect the trial. He may

influence the independent witnesses and may tamper evidence

of this case and as such, his detention in judicial custody is

required for the fair trial of this case and for the ends of

Justice.

56. Accordingly, This Court, on the basis of the facts as

referred hereinabove and coming to the provision of Section

43D(5) of the Act, 1967 as also the judgment rendered by the

Hon'ble Apex Court in the case of Zahoor Ahmad Shah Watali

(supra) and Gurwinder Singh Vs State of Punjab and

Another (supra) is of the view that it cannot be said that the

allegation levelled against the appellant is prima facie untrue.

57. In view of the foregoing discussions, we find no illegality

in the impugned order dated 10.08.2022 passed in Misc. Cr.

Application No.1491 of 2022 by AJC-XVI-cum-Spl. Judge, NIA, Ranchi, rejecting the bail application of the appellant and as

such, the order impugned requires no interference by this

Court.

58. In the result, we find no merit in instant appeal, hence,

the same is accordingly, dismissed.

59. Pending Interlocutory Application(s), if any, also stands

disposed of.

60. It is made clear that any observation made herein will not

prejudice the case of the appellant in course of trial and view

as expressed by this Court is only limited to the instant

appeal.

(Sujit Narayan Prasad, J.)

(Arun Kumar Rai, J.)

Birendra/ A.F.R.