Madras High Court
Stanly Kennedy Fernando @ Ezhilon vs Union Of India Rep. By on 19 October, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
Crl.A.No.167 of 2024 & batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.10.2024
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
and
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
Crl.A.Nos.167, 12, 54, 74 of 2024, 1279, 1320 & 1449 of 2023
Crl.A.No.167 of 2024
Stanly Kennedy Fernando @ Ezhilon
@ Bumma @ Kisan ... Appellant
Vs.
Union of India Rep. by
Inspector of Police,
National Investigation Agency,
Kochi,
(R.C.No.29/2022/NIA/DLI) ... Respondent
Prayer :- The Criminal Appeal filed under Section 21(4) of National
Investigation Agency Act, 2008, to set aside the order passed in
Crl.M.P.No.1784 of 2023 dated 13.10.2023 on the file of the Hon'ble Special
Court for Exclusive Trial for Bomb Blast Cases Chennai at Poonamallee,
Chennai and grant bail to the appellant in Spl.S.C.No.3 of 2023 in
R.C.No.29/2022/NIA/DLI pending on the file of the respondent.
For Appellant : Mr.K.Subash Chandran
For Respondent : Mr.R.Karthikeyan,
Special Public Prosecutor for NIA
1/10
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Crl.A.No.167 of 2024 & batch
JUDGMENT
(Order of the Court was delivered by S.M.Subramaniam J.)
Under assail in the present appeals is the orders dated 13.10.2023,
05.10.2023, 16.10.2023 & 02.11.2023, passed in Crl.M.P.Nos.1784 of
2023, 1785 of 2023, 1786 of 2023, 1783 of 2023, 1787 of 2023, 1844 of
2023 & 1973 of 2023, respectively, in Spl.S.C.No.3 of 2023, on the file of
the Special Court under the NIA Act, 2008.
2.The appellants are the accused Nos.5, 7, 9, 6, 10, 13 & 2 respectively
and filed petitions under Section 439 of Cr.P.C. to grant bail.
3.The respondent National Investigation Agency (NIA) registered the
case against the appellants/A5, 7, 9 & 6 for the alleged offence under Section
120 B IPC Sections 18, 20, 38, 39 and 40 of the Unlawful Activities
(Prevention) Act, 1967 and Section 8 (c) r/w Section 21 (c), 23 (c), 24, 27A,
28 and 29 of NDPS Act, 1985, against the appellant/A10, under Sections 17,
18, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 and
Section 8 (c) r/w Section 21 (c), 23 (c), 24, 27A, 28 and 29 of NDPS Act,
1985 r/w 120 B IPC, against the appellant/A13 for the alleged offence under
Section 120 B IPC Sections 18, 20, 38, 39 and 40 of the Unlawful Activities
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Crl.A.No.167 of 2024 & batch
(Prevention) Act, 1967 and Section 8 (c) r/w Section 21 (c), 23 (c), 24, 27A,
28 and 29 of NDPS Act, 1985, against the appellant/A2, under Section 120 B
IPC Sections 17, 18, 20, 38, 39 and 40 of the Unlawful Activities
(Prevention) Act, 1967 and Section 8 (c) r/w Section 21 (c), 23 (c), 24, 27A,
28 and 29 of NDPS Act, 1985. The appellants/A5, 7, 9 & 6 were arrested on
19.12.2022 and remanded to judicial custody on 20.12.2022. A10 was
arrested and remanded to judicial custody on 19.12.2022, A13 was arrested
on 06.04.2023, A2 was arrested and remanded to judicial custody on
20.12.2022.
4.The appellants would mainly contend that the narration of facts in
the charge sheet are presumptive in nature. In order to bring the appellants
under the provisions of the Unlawful Activities (Prevention) Act, the
authorities, in the absence of any materials available on record, issued charge
sheet and therefore, the case of the appellants for grant of bail ought to have
been considered by the Trial Court.
5.No doubt, initially a case under the Passport Act was registered
against the appellants since they have arrived within the territory of India
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Crl.A.No.167 of 2024 & batch
without any valid passport. They are lodged in Special Camp at
Tiruchirapalli and considered as Refugees. Even if bail is granted, they
cannot move around and to be shifted from prison to Special Camp.
Therefore, the Trial Court failed to consider all these aspects while
considering the bail petitions filed under Section 439 Cr.P.C.
6.The Special Public Prosecutor would oppose by stating that the
charges against the appellants are serious in nature involving National
Security. The appellants admittedly are Srilankan Citizens. An attempt had
been made for the revival of banned terrorist organisation LTTE in Srilanka
and in this connection, Laptops, Sim Cards and the communication details
are secured by the respondent. Beyond that, to mobilise fund, to commit
terrorist acts, the appellants along with the other accused persons accelerated
the sale and transit of huge quantity of narcotic drugs and psychotropic
substances and therefore, they have committed the alleged offence under the
NDPS Act.
7.We have considered the arguments as advanced between the parties
to the appeals on hand. We have perused the findings of the Special Court.
The Special Court elaborately considered the grounds raised by the
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Crl.A.No.167 of 2024 & batch
petitioners therein in the bail petitions and the objections raised by the
respondent. The Trial Court considered the gravity of the offence and the
scheduled offences under the NIA Act, 2008. The Central Government has
directed the NIA, Kochi Branch office, to take up the investigation. Based on
the orders of the Ministry of Home Affairs, Government of India, vide order
dated 05.07.2022, a case in Crime No.RC-29/2022/NIA/DLI has been
registered on 08.07.2022 at NIA Police Station, Delhi.
8.Pertinently, investigation/searches conducted and digital devices and
documents were seized. Seized documents were forwarded to CDAC,
Thiruvananthapuram and RFSL Chennai for analysis and the investigation
copy/mirror images of the digital devices had been obtained and scrutinized.
The relevant documentary evidences including Bank account statements,
KYC, call data records, were obtained during the course of investigation.
9.Admittedly, charge sheet has been filed implicating the appellants
herein.
10.The Trial Court after elaborately considering the grounds raised by
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Crl.A.No.167 of 2024 & batch
the appellants and the objections raised by the respondent, considering the
scope of Section 43 (D) (5) of the Unlawful Activities (Prevention) Act 1967,
the Special Court found that there is no special reason to consider the bail
petitions filed by the appellants.
11.Sub Section 7 to Section 43 (D) stipulates that notwithstanding
anything contained in sub sections (5) and (6), no bail shall be granted to a
person accused of an offence punishable under this Act, if he is not an Indian
Citizen and has entered the country unauthorizedly or illegally except in very
exceptional circumstances and for reasons to be recorded in writing.
12.The appellants were already involved in criminal cases under the
Passport Act. Their entry into Indian territory was illegal and they were kept
in the Special Camp at Tiruchirapalli. When the appellants are lodged in the
Special Camp at Tiruchirapalli, they have committed the offences for which
the present criminal case has been registered. By sitting in the Special Camp
at Tiruchirapalli, they have organised for the purpose of revival of the banned
organisation LTTE is the allegation mainly set out by the respondent. To
realise their ambition, the activities done by the persons inside the Special
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Crl.A.No.167 of 2024 & batch
Camp were investigated and electronic devices and documents etc are seized.
13.When there is an express bar for grant of bail to the person accused
of an offence punishable under the Unlawful Activities (Prevention) Act,
1967, the case of the appellants cannot be considered in a routine manner.
14.With reference to the exception stipulated in Sub Section 7 to
Section 43 (D), we could not able to trace out any “very exceptional
circumstances for the purpose of grant of bail”. In the absence of very
exceptional circumstances, bail cannot be granted to the accused facing a
charge under the Unlawful Activities (Prevention) Act, 1967. The language
employed in the enactment is “very exceptional circumstances” and the
emphasis made by the Parliament in the Act is to be considered with
reference to the purpose and object to maintain National Security. Since we
could not able to establish the very exceptional circumstances, the reasons
assigned by the Special Court in the order impugned would be sufficient to
form an opinion that the appellants have not made out a case to disagree with
the order passed by the Special Court, which is impugned. Thus, the
impugned order stands confirmed, however, we request the Special Court to
expedite the trial as early as possible.
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Crl.A.No.167 of 2024 & batch
15.In the result, all the Appeals stand dismissed. Consequently,
connected miscellaneous petitions, if any, are also closed.
(S.M.S.J.,) (V.S.G.,J.)
19.10.2024
sli
Index : Yes/No
Speaking order/Non-Speaking order
Neutral Citation : Yes/No
To
1. The Special Court for Exclusive Trial for Bomb Blast Cases Chennai,
Poonamallee, Chennai.
https://www.mhc.tn.gov.in/judis
Crl.A.No.167 of 2024 & batch
2. Union of India Rep. by
Inspector of Police,
National Investigation Agency,
Kochi,
(R.C.No.29/2022/NIA/DLI)
3. The Public Prosecutor,
High Court of Madras.
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Crl.A.No.167 of 2024 & batch
S.M.SUBRAMANIAM, J.
and
V.SIVAGNANAM, J.
sli
19.10.2024
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