Madras High Court
Johnson Samuvel vs Union Of India Rep By on 9 May, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 25.7.2022
Delivered on : 02.08.2022
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
AND
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Criminal Appeal No.642 of 2022
Johnson Samuvel Appellant
vs.
Union of India rep by
The Inspector of Police,
National Investigation Agency,
Chennai. Respondent
Criminal Appeal filed under Section 21(4) of National
Investigation Agency Act, 2008 to set aside the order dated 9.5.2022
passed by the Special Court under the National Investigation Agency
Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast Cases),
Poonamallee, Chennai in Crl.M.P.No.185 of 2022 and to enlarge the
appellant on bail in Spl.S.C.No.1 of 2022 on the file of the respondent
police.
For Appellant : Ms.G.V.Shoba
For Respondent : Mr.R.Karthikeyan,
Special Public Prosecutor for NIA cases
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2
JUDGMENT
S.VAIDYANATHAN, J.
and
A.D.JAGADISH CHANDIRA,J.
The Appeal has been filed seeking to set aside the order dated
9.5.2022 passed by the Special Court under the National Investigation
Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast
Cases), Poonamallee, Chennai in Crl.M.P.No.185 of 2022 and to
enlarge the appellant on bail in Spl.S.C.No.1 of 2022 on the file of the
respondent police.
2. Brief facts of the case are as under:-
i) One Mary Franciska Letchumanan (A1 in the case), a Sri
Lankan Tamil was intercepted on 01.10.2021 at the Chennai Airport
and enquiry by the Officers of the Foreigners Regional Registration
Office, Chennai, revealed that she was possessing Indian Passport and
Indian Voter ID, intentionally obtained concealing her nationality and
producing fake and fabricated Indian identification documents.
ii) Thereupon, based on a written complaint lodged by
Mr.K.G.Sadasivan, Assistant Foreigners Regional Registration Officer,
Bureau of Immigration, Chennai Airport, a case in Chennai City Q-
Branch CID Crime No.1 of 2021 for the offences under Sections
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12(1)(b), 12(1-A) (a) of the Passport Act, 1967, r/w Sections 420,
465, 468 and 471 IPC r/w Section 14(a) of the Foreigners
(Amendment) Act, 2004, was registered by the State Police.
iii) The investigation conducted by the Q-Branch CID revealed
that Mary is a Sri Lankan national and had obtained a fake Indian
passport and Indian voter identity card and she had entered into India
with an ulterior motive to commit financial crime in collusion with the
Ex-LTTE Cadres at abroad. She was taken into police custody by the Q
Branch CID from 11.10.2021 to 13.10.2021 and after such custodial
interrogation, the appellant/A4 was arrested on 13.10.2021 by the Q
Branch CID Police, Chennai and on considering the nature of offence
involved, the investigation of this case was transferred from the file of
the Q-Branch CID to the file of the National Investigation Agency vide
order dated 17.01.2022 passed by the Central Government and the
case has been re-registered as R.C.No.02/2022/NIA/DLI.
iv) The FIR came to be altered and offences under Sections
120B, 420, 465, 468, 471 IPC and Sections 18, 39 and 40 of Unlawful
Activities (Prevention) Act, 1967 were added and the case was
transferred to the District Court, Chengalpattu.
v) A1 was taken custody by the National Investigation Agency
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from 27.2.2022 to 5.3.2022. The custodial interrogation of the said
Mary Franciska Letchumanan by the Q Branch CID police and the
National Investigation Agency revealed various facts including a
criminal conspiracy of A1 with other accused viz., A2 to A8 with an
intention of siphoning off a sum of Rs.42.28 crores deposited in the
dormant accounts of three Indians, viz., Hamida A Lalljee, Arshia A
Lalljee and Iskander A Lalljee in Indian Overseas Bank, Fort Mumbai
Branch; the money was intended for financing the activities of the
LTTE.
vi) The further investigation revealed that A1 was being actively
assisted by some others, who have been implicated in the case,
including the appellant-Johnson Samuel (A4).
vii) The allegation against the appellant/A4 is that he had a
discussion with A1 about her plan of siphoning of Rs.42.28 crores lying
in the IOB account of Hamida A Lalljee, Arshia A Lalljee and Iskander
A Lalljee in Fort Mumbai Branch by impersonating A7 Mohan with the
active assistance of A6 and utilize it for the revival of LTTE in India
and A1 had agreed to give a share of 20% of the total amount to the
appellant/A4 for the assistance he would render in siphoning the
amount.
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viii) Accordingly, the National Investigation Agency had filed the
charge sheet against the appellant/A4, A6 and A7 on 29.3.2022
before the Special Court.
ix) Seeking bail, the appellant had filed a petition in
Crl.M.P.No.185 of 2022, which came to be dismissed by the Special
Court by order order 9.5.2022. Aggrieved against the same, the
present Criminal Appeal has been filed by the appellant/A4.
3. Learned counsel Ms.G.V.Shoba appearing for the appellant
would submit that the appellant is a practising Advocate and A1 had
approached the appellant seeking legal assistance and the appellant,
other than advising A1, has not involved in any offence alleged by the
prosecution. She would submit that the appellant was called for an
enquiry by the the Q Branch police and accordingly, the appellant had
gone for enquiry alongwith his colleagues and during the enquiry, since
the appellant was harassed by the police, a wordy altercation had
arisen, resultantly, the appellant was falsely implicated in the case.
She would further submit that the the Q Branch police had completed
the investigation and transferred the case to the National Investigation
Agency on 17.01.2022 and on completion of investigation, the
National Investigation Agency had filed the charge sheet on 29.3.2022
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whereby, the charges under the Unlawful Activities (Prevention) Act,
1967 against the appellant were dropped and he was charged with the
offences punishable under Sections 120B, 465, 468 read with Section
109 IPC. She would further submit that even admittedly, as per the
prosecution, the appellant was not aware of the other criminal
activities of the main accused and thereby, if at all, the appellant can
be tried only for the offences punishable under the provisions of Indian
Penal Code, however, the Special Court, without there being charges
against the appellant for offences under the provisions of Unlawful
Activities (Prevention) Act, had invoked Section 43D(5) of the Unlawful
Activities (Prevention) Act for dismissing the bail application. The
learned counsel would further submit that the presence of statutory
restrictions like the provision under Section 43-D(5) of the the
Unlawful Activities (Prevention) Act, per se, does not oust the powers
of the constitutional courts to grant bail on grounds of violation of Part
III of the Constitution, which would cover within its protective ambit
not only due procedure and fairness but also access to justice and a
speedy trial. She would submit that the appellant is a law abiding
person having strong roots in the society and he would abide by any
stringent conditions imposed by this court for grant of bail and in the
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event of grant of bail, he would not tamper with the evidence or
witnesses during trial and he would cooperate for the speedy trial of
the case.
4. The respondent has filed a statement of detailed objections.
Pointing out the counter allegations, Mr.R.Karthikeyan, learned Special
Public Prosecutor, would vehemently oppose for grant of bail to the
appellant and submitted his arguments as under:-
i) On interception of one Mary Franciska Letchumanan a Tamil
Srilankan lady (A1) at the Chennai Airport, the authorities had found
that she had obtained Indian Passport, Voter ID and other such basic
documents and she had entered India with an intention to siphon the
money from the dormant accounts of some Indian by fabricating and
impersonating and utilize the same for revival of LTTE and further
investigation had revealed that she had conspired with some other
accused for her illegal activities and one among them is the present
appellant/A4.
ii) The investigation also revealed that the appellant/A4 had
applied and obtained PAN card and Aadhar card through online mode
and fabricated and prepared a fake PAN card and Aadhar card in the
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name of Iskanthar A Laljee using his own laptop through Adobe
Photoshop with the help of A6 Dharmendiran and thereby the
appellant cannot plead innocence, especially, when the co-accused has
been charged with grave offences and the appellant had conspired with
them.
iii) The respondent has got sufficient materials and evidence to
prove the criminal activities committed by the appellant and the
Special Court has rightly dismissed the bail application filed by the
appellant, which does not warrant any interference by this court.
5. Heard the learned counsel appearing for the parties and
perused the materials available on record.
6. The appellant/A4 has been arrested on 13.10.2021. The
allegation against him is that he has fabricated documents and aided
the main accused in attempting to siphoning of funds in various
dormant accounts. A perusal of the materials would reveal that
though the appellant was implicated in the case alongwith other
accused in Crime No.1 of 2021 for the offence punishable under
Sections 12(1)(b), 12(1-A) (a) of the Passport Act, 1967, r/w Sections
420, 465, 468 and 471 IPC r/w Section 14(a) of the Foreigners
(Amendment) Act, 2004 and Sections 18, 39 and 40 of Unlawful
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Activities (Prevention) Act, later, on completion of investigation by the
National Investigation Agency, the charges against the appellant/A4
for the offences punishable under the provisions of Unlawful Activities
(Prevention) Act were dropped and the appellant/A4 stands charged
for the offences punishable under Sections 120B, 465, 468 read with
Section 109 IPC alone.
7. A scrupulous reading of the prosecution case would reveal
that the appellant/A4 had only aided the main accused in siphoning the
money from some bank accounts by creating documents and there
ends the role of the appellant and he was unaware of the ultimate goal
of the main accused in utilising money so siphoned for reviving the
LTTE in India and on coming to such an inference alone, the
prosecution has dropped the charges against the appellant for the
offences punishable under the provisions of Unlawful Activities
(Prevention) Act, 1967.
8. When such a course of action has been decided by the
National Investigation Agency, the Special Court had invoked the
provision of Section 43D(5) of Unlawful Activities (Prevention) Act,
1967 to reject the application filed by the appellant seeking bail.
The offence in the present case has got two limbs. One
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being siphoning of money from some bank accounts by fabricating
some documents and impersonation, the other limb is utilisation of the
money so siphoned for developing terroristic activities. The allegation
against the main accused in this case is that they had indulged into the
offence at both levels, whereas, the allegation against the appellant/A4
is that he had aided the main accused in siphoning the money and
except a stand taken by the prosecution that the appellant had
discussion with A1 and conspired to commit the offence, there is no
specific material to incriminate the appellant for any such grave
offence punishable under the provisions of Unlawful Activities
(Prevention) Act.
9. It is relevant to note that while dismissing an appeal filed by
the Union of India against grant of bail in a case of offence punishable
under Unlawful Activities (Prevention) Act, 1967, a Full Bench of the
Apex Court in Union of India v. K.A. Najeeb (2021) 3 SCC 713, has
held as under:-
"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
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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
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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,
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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.
20. In light of the above discussion, we are not
inclined to interfere with the impugned order.
However, we feel that besides the conditions to be
imposed by the trial court while releasing the
respondent, it would serve the best interest of justice
and the society at large to impose some additional
conditions that the respondent shall mark his
presence every week on Monday at 10 a.m. at the
local police station and inform in writing that he is not
involved in any other new crime. The respondent shall
also refrain from participating in any activity which
might enrage communal sentiments. In case the
respondent is found to have violated any of his bail
conditions or attempted to have tampered the
evidence, influence witnesses, or hamper the trial in
any other way, then the Special Court shall be at
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liberty to cancel his bail forthwith. The appeal is
accordingly dismissed subject to the abovestated
directions."
10. The case on hand is on a better footing. The charges against
the appellant/A4 under the provisions of Unlawful Activities
(Prevention) Act were dropped by the prosecution itself. However, the
Special Court had rejected the plea for bail by invoking Section 43D(5)
of Unlawful Activities (Prevention) Act. The reasoning assigned by the
Special Court for rejecting the bail is that though the appellant is not
charged under the provisions of Unlawful Activities (Prevention) Act
directly, the charge of criminal conspiracy against him under Section
120B IPC attracts the offence punishable under the provisions of
Unlawful Activities (Prevention) Act.
11. This court is unable to accept such a view expressed by
the Special Court, especially, when the appellant was originally
charged with the provisions of Unlawful Activities (Prevention) Act
and later, on completion of investigation, they were dropped against
him by the prosecution itself. Lending of gravity of offence charged
against the main accused to reject the bail application of the co-
accused by applying the theory of conspiracy, when such
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grave charges were dropped against the co-accused appears to be
untenable.
12. As of now, the appellant has been in custody for about 280
days. Taking into consideration the stage of the case, this court finds
that there is no likelihood of the trial being completed at the earliest.
The appellant is an Advocate and he has roots in the society.
Deprivation of personal liberty of the accused without ensuring speedy
trial has been dealt with by the Apex Court in Ashim @ Asim Kumar
Haranath vs. National Investigation Agency (2021) SCC OnLine
SC 1156, wherein it has held as under:-
"12. 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 under trials cannot indefinitely be
detained pending trial. Once it is obvious that a
timely trial would not be possible and the accused
has suffered incarceration for a significant period of
time, the Courts would ordinarily be obligated to
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enlarge him on bail.
13. 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."
13. The gravity of offence cannot stand in the way of personal
liberty of an accused. It has been held by the Apex Court in Sanjay
Chandra v. CBI (2012) 1 SCC 40 as under:-
“21. In bail applications, generally, it has been laid
down from the earliest times that the object of bail
is to secure the appearance of the accused person
at his trial by reasonable amount of bail. The object
of bail is neither punitive nor preventative.
Deprivation of liberty must be considered a
punishment, unless it is required to ensure that an
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accused person will stand his trial when called upon.
The courts owe more than verbal respect to the
principle that punishment begins after conviction,
and that every man is deemed to be innocent until
duly tried and duly found guilty.
22. From the earliest times, it was
appreciated that detention in custody pending
completion of trial could be a cause of great
hardship. From time to time, necessity demands
that some unconvicted persons should be held in
custody pending trial to secure their attendance at
the trial but in such cases, “necessity” is the
operative test. In this country, it would be quite
contrary to the concept of personal liberty
enshrined in the Constitution that any person
should be punished in respect of any matter, upon
which, he has not been convicted or that in any
circumstances, he should be deprived of his liberty
upon only the belief that he will tamper with the
witnesses if left at liberty, save in the most
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extraordinary circumstances.
23. Apart from the question of prevention
being the object of refusal of bail, one must not lose
sight of the fact that any imprisonment before
conviction has a substantial punitive content and it
would be improper for any court to refuse bail as a
mark of disapproval of former conduct whether the
accused has been convicted for it or not or to refuse
bail to an unconvicted person for the purpose of
giving him a taste of imprisonment as a lesson.
24. In the instant case, we have already
noticed that the “pointing finger of accusation”
against the appellants is “the seriousness of the
charge”. The offences alleged are economic
offences which have resulted in loss to the State
exchequer. Though, they contend that there is a
possibility of the appellants tampering with the
witnesses, they have not placed any material in
support of the allegation. In our view, seriousness
of the charge is, no doubt, one of the relevant
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considerations while considering bail applications
but that is not the only test or the factor : the other
factor that also requires to be taken note of is the
punishment that could be imposed after trial and
conviction, both under the Penal Code and the
Prevention of Corruption Act. Otherwise, if the
former is the only test, we would not be balancing
the constitutional rights but rather “recalibrating the
scales of justice”.
25. The provisions of CrPC confer
discretionary jurisdiction on criminal courts to grant
bail to the accused pending trial or in appeal against
convictions; since the jurisdiction is discretionary, it
has to be exercised with great care and caution by
balancing the valuable right of liberty of an
individual and the interest of the society in general.
In our view, the reasoning adopted by the learned
District Judge, which is affirmed by the High Court,
in our opinion, is a denial of the whole basis of our
system of law and normal rule of bail system. It
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transcends respect for the requirement that a man
shall be considered innocent until he is found guilty.
If such power is recognised, then it may lead to
chaotic situation and would jeopardise the personal
liberty of an individual.
***** ***** *****
46. We are conscious of the fact that the
accused are charged with economic offences of
huge magnitude. We are also conscious of the fact
that the offences alleged, if proved, may jeopardise
the economy of the country. At the same time, we
cannot lose sight of the fact that the investigating
agency has already completed investigation and the
charge-sheet is already filed before the Special
Judge, CBI, New Delhi. Therefore, their presence in
the custody may not be necessary for further
investigation. We are of the view that the appellants
are entitled to the grant of bail pending trial on
stringent conditions in order to ally the
apprehension expressed by CBI."
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14. Relying on the above decision, the Delhi High Court has held
in Sundar Singh Bhati vs. State (2022) SCC OnLine Del. 134 as
under:-
"19. Therefore, the magnitude of the offence cannot
be the only criterion for denial of bail. The object of
bail is to secure the presence of the accused at the
time of trial; this object is, thus, neither punitive nor
preventative, and a person who has not been
convicted should only be kept in custody if there are
reasons to believe that they might flee from justice or
tamper with the evidence or threaten the witnesses. If
there is no apprehension of interference in
administration of justice in a criminal trial by an
accused, then the Court should be circumspect while
considering depriving the accused of their personal
liberty. Mere vague belief that the accused may thwart
the investigation cannot be a ground to prolong the
incarceration of the accused."
15. Applying the above principles laid down in the above
decisions, this court is of the view that appellant has made out a case
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for grant of bail. Accordingly, the Criminal Appeal is allowed and the
order dated 9.5.2022 passed by the Special Court under the National
Investigation Agency Act, 2008 (Sessions Court for Exclusive Trial of
Bomb Blast Cases), Poonamallee, Chennai in Crl.M.P.No.185 of 2022 is
set aside and the appellant is ordered to be released on bail in
Spl.S.C.No.1 of 2022 pending trial,
a) on executing a bond for a sum of Rs.25,000/- (Rupees twenty
five thousand only) with two sureties each for a likesum to the
satisfaction of the Special Court under the National Investigation
Agency Act, 2008 (Sessions Court for Exclusive Trial of Bomb Blast
Cases), Poonamallee, Chennai.
(b) the sureties shall affix their photographs and Left Thumb
Impression in the surety bond and the learned Judge, Special Court
may obtain a copy of their Aadhar Card or Bank Pass Book to ensure
their identity;
(c) the appellant shall report before the Special Court on every
Monday at 10.30 a.m. and also on all the hearing dates.
(d) the appellant shall not leave the State of Tamil Nadu without
intimating the respondent police.
(e) the appellant shall not commit any offences of similar nature;
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(f) the appellant shall not abscond during trial;
(g) the appellant shall not tamper with evidence or witness
during trial;
(h) on breach of any of the aforesaid conditions, the learned
Judge, Special Court is entitled to take appropriate action against the
appellant in accordance with law as if the conditions have been
imposed and the appellant released on bail by the learned Judge,
Special Court himself as laid down by the Hon'ble Supreme Court in
P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560];
(i) if the appellant thereafter absconds, a fresh FIR can be
registered under Section 229A IPC.
16. Before parting with, we make it clear that the observations
and findings recorded in this judgment are only for the limited purpose
of considering the application for bail and the Special Court shall not be
influenced by the same during the trial or while rendering its decision.
(S.V.N.,J.) (A.D.J.C.,J.)
02.08.2022.
Index: Yes/No.
Internet: Yes/No.
ssk.
Note to office: Issue copy on 03.08.2022.
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To
1. Judge,
Special Court under the
National Investigation Agency Act, 2008
(Sessions Court for Exclusive Trial
of Bomb Blast Cases),
Poonamallee, Chennai 600 056.
2. Inspector of Police,
National Investigation Agency,
Chennai.
3. The Superintendent,
Central Prison,,
Puzhal.
4. The Public Prosecutor,
High Court, Madras.
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S.VAIDYANATHAN, J.
and
A.D.JAGADISH CHANDIRA, J.
ssk.
P.D. JUDGMENT IN
Criminal Appeal No.642 of 2022
Delivered on
02.08.2022.
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