Telangana High Court

Sanaboina Kumara Swamy, vs The State Of Telangana, on 22 March, 2024

Author: K. Lakshman

Bench: K.Lakshman, Juvvadi Sridevi

               HON'BLE SRI JUSTICE K. LAKSHMAN
                                AND
         HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

                 CRIMINAL APPEAL No.1084 OF 2023

JUDGMENT:

(Per Hon'ble Sri Justice K. Lakshman)

Heard Mr. Bramhadandi Ramesh, learned senior counsel

representing Ms.R.Swarnalatha, learned counsel for the

appellant/A.12 and Mr. P. Vishnuvardhan Reddy, learned Special

Public Prosecutor for NIA appearing on behalf of the respondent.

2. Criminal Appeal No.1084 of 2023 is filed by Accused No.12

challenging the order dated 16.12.2023 passed by learned IV

Additional Metropolitan Sessions Judge - cum - Special Court for NIA

Cases, Nampally, Hyderabad (for short 'Designated Court/Special

Court') dismissing the application filed by him vide Crl.M.P. No.1767

of 2023 in RC-03/2023/NIA/HYD seeking regular bail.

3. The case of the NIA in brief is as under:

i) On 05.06.2023 at 4.00 P.M. at the outskirts of Dosillapalli

Village, Cherla Mandal, TVR Suri, Sub-Inspector of Police, Cherla

Police Station, while conducting vehicle checking, intercepted A.1 to

A.3 along with incriminating material objects, such as one drone,

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cortex wire bundles - 2 each 80 meters length, gelatin sticks - 10,

detonators - 5 ( for short, 'case property') while accused Nos.1 to 7

conspired to hand over the same to the underground cadres of

proscribed organization of CPI (Maoist) i.e., accused Nos.8 to 11 and

others, for making landmine and IED firearms.

ii) It was also revealed that accused Nos.1 to 3 purchased one

Lathe machine and used to cut the iron rods to make firearms, one

drone to observe the police party movements in the forest area and

also received explosive substance from accused Nos.4 to A.7 which

they have received from accused No.12, while accused Nos.1 to 3

were trying to supply the said items to banned CPI (Maoist) Party

leaders pursuant to the conspiracy. The appellant/A.12 was

apprehended in connection with Cr.No.50 of 2023 of Dummuguda

police Station and he was produced in the present crime i.e. Cr.No.52

of 2023 on P.T. Warrant. Material objects were seized from A.1 and

A.3. They were produced on PT warrants before the Magistrate Court

at Bhadrachalam on 12.06.2023.

iii) Initially, a case in Crime No.52 of 2023 was registered on

05.06.2023 by Cherla Police Station for the offences under Sections -

120-B, 143, 147 and 148 read with 149 of IPC and Sections - 8 (i) and

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(ii) of the Telangana Public Security Act, 1992 ( for short, TPS Act),

Section - 5 of the Explosives Substance Act, 1908 (for short, ES Act)

and Sections - 10, 13, 18 and 20 of the Unlawful Activities

(Prevention) Act, 1967 (for short, UAPA). Subsequently, investigation

was entrusted to NIA pursuant to the directions of the Central

Government, the case was re-registered as RC.No.3 of 2023/NIA/

Hyderabad for the aforesaid offences.

iv) Thus, accused Nos.1 to A.7 got acquaintances with banned

CPI (Maoist) Party UG armed Cadre i.e., accused Nos.8 to 11 and

others and criminally conspired with them by being an associate with

them to supply explosives and other items which are used to make

landmines, IED and firearms.

4. The appellant/A.12 has filed application before the trial Court

under Section 439 of Cr.P.C. seeking regular bail. The trial Court,

vide orders, dated 16.12.2023 dismissed the said application.

Challenging the same, A.12 has preferred the present appeal seeking

bail on the following grounds:-

i. The Investigating Officer in the said crime informed that he has

already filed chargesheet, whereas, trial Court dismissed bail

applications on the ground that the Investigation is pending.

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ii. The police produced the appellant herein/A.12 on P.T. Warrant

in the present crime on 12.06.2023 NIA Authorities filed a

remand extension petition and police custody petition before the

Designated Court.

iii. The appellant herein is innocent and he is falsely implicated in

the present crime. The entire material objects were recovered

from the possession of A.1 to A.3 and A-7 and produced before

the Designated Court.

iv. The police have arrested the appellant on the ground that he is

supplying the explosives to the Banned CPI Maoist leaders

pursuant to the conspiracy and arrested him. Except the said

allegation, there is no proof that the appellant involved in the

present crime.

v. The appellant/A.12 is licensed holder of explosives.

vi. The appellant/A.12 is an accused in Cr.No.50 of 2023 of

Dhummuguda Police Station for the similar offences.A.12 also

granted bail on 14.07.2023 in Crl.M.P.No.182 of 2023 by the I

Additional District and Sessions Judge at Kothagudem. When

he is about to release, the Police took him into custody in the

present crime. On confession of A.7 only, A.12 got foisted in

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the present case. A.12 is doing business under the name and

style of Sri Vijaya Sai Earth Movers Jangaon, Warangal

District, since 2008.

vii. Since no material was seized from the possession of A.12, there

is no need for judicial custody of A.12. He was already taken

into police custody for 5 days.

viii. The appellant herein is in judicial custody since 05.06.2023. i.e.

more than 180 days.

ix. Since entire investigation is completed and the NIA laid charge

sheet, question of tampering witnesses or evidence will not

arise.

x. Therefore, he may be enlarged on bail by imposing conditions.

xi. With the said submissions, he sought to release the appellant

herein on bail.

CONTENTIONS OF NIA:

5. Mr. P. Vishnuvardhan Reddy, learned Special Public

Prosecutor for NIA would submit that during the course of

investigation, the appellant was examined in judicial custody in which

he disclosed the details of case property i.e., explosives and his

intention to hand over the same to the underground cadres of

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proscribed organization of CPI (Maoist) i.e., accused Nos.8 to 11 and

others, for making landmine and IED firearms. They have conspired

with other accused to supply the case property to the said

organization. After completion of investigation, they filed charge

sheet before the Designated Court along with all the related

documents, statements and material evidence which clearly establish

the case against the appellant herein. Completion of investigation

alone may not be considered as a condition for claiming bail. Since

some accused in this case are absconding, it is not safe to grant bail to

the appellant herein. The offences are grave and serious in nature. On

considering the said aspects only, the Designated Court dismissed the

bail application filed by the appellant. There is no error in it. With the

said submissions, he sought to dismiss the appeal.

ANALYSIS AND FINDING OF THE COURT:

6. According to the prosecution, the allegations levelled against

appellant herein/A.12 are that he along with the other accused, being

associates of banned CPI (Maoist) Party UG armed Cadre i.e., accused

Nos.8 to 11 and others, conspired to supply the explosives and other

items which are used to make landmines, IED and firearms to them.

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As part of the said conspiracy, A.4 to A.6 received explosive

substance from the appellant herein/A.12 and handed over the same to

A.1 and A.3.

7. The offences alleged against the appellant are under Sections

120-B, 143, 147 and 148 read with 149 of IPC, Sections - 8 (1) and

(2) of the TPS Act, Section - 5 of ES Act, Sections - 10, 13, 18 and 20

of the UAPA. A.12 herein is also an accused in Cr.No.50 of 2023

pending on the file of Dummuguda Police Station. He was arrested in

the said crime and produced in the present crime on P.T. warrant.

Thus, there are serious allegations against the appellant herein.

8. It is relevant to note that Section 43-D (5) of the UAPA is

relevant and the same is extracted as follows:-

5. Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

9. Thus, the following mandatory requirements are essential as

per Section 43-D (5) of the UAPA:-

i. Opportunity of being heard to the Public Prosecutor ,

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ii. Court has to come to an opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

In the present case, an opportunity was given to the Public Prosecutor.

NIA had filed counter in the bail petitions before the Designated Court

and this Court. Now, this Court has to peruse the report filed under

Section - 173 of the Cr.P.C. and material including the statements of

protected witnesses and come to a conclusion as to whether there are

reasonable grounds for believing that the accusation against the

appellant is prima facie true.

10. The Apex Court held that it is a fundamental premise of

open justice, to which our judicial system is committed, that factors

which have weighed in the mind of the judge in the rejection or the

grant of bail are recorded in the order passed. Open justice is

premised on the notion that justice should not only be done, but

should manifestly and undoubtedly be seen to be done. The duty of

the Judges to give reasoned decisions lies at the heart of this

commitment. Questions of the grant of bail concern both liberty of

individuals undergoing criminal prosecution as well as the interest of

criminal justice system in ensuring that those who commit crimes are

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not afforded the opportunity to obstruct justice. Judges are duty

bound to explain the basis on which they have arrived at a conclusion.

11. In Mahipal v. Rajesh Kumar @ Polia 1, the Apex Court,

discussed with regard to the power of granting bail under Section 439

of Cr.P.C. and held that the power to grant bail under Section 439 of

Cr.P.C. is of a wide amplitude. Though the grant of bail involves the

exercise of discretionary power of the Court, it has to be exercised in a

judicious manner and not as a matter of course. In the said case, the

guiding factors for exercise of power to grant bail as held in Ram

Govind Upadhyay v. Sudarshan Singh 2, were referred, which are as

follows:

"3. Grant of bail though being a discretionary order - but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case...The nature of the offence is one of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the

. (2020) 2 SCC 118

. (2002) 3 SCC 598

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bail, though, however, dependent on the factual matrix of the matter.

4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the Accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be (2002) 3 SCC 598 considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the Accused is entitled to an order of bail."

i) It was further held in the very same judgment that the

determination of whether a case is fit for the grant of bail involves the

balancing of numerous factors, among which the nature of the offence,

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the severity of the punishment and a prima facie view of the

involvement of the Accused are important. No straitjacket formula

exists for courts to assess an application for the grant or rejection of

bail. At the stage of assessing whether a case is fit for the grant of bail,

the court is not required to enter into a detailed analysis of the

evidence on record to establish beyond reasonable doubt the

commission of the crime by the Accused. That is a matter for trial.

However, the Court is required to examine whether there is a prima

facie or reasonable ground to believe that the Accused had committed

the offence and on a balance of the considerations involved, the

continued custody of the Accused sub-serves the purpose of the

criminal justice system. Where bail has been granted by a lower court,

an appellate court must be slow to interfere and ought to be guided by

the principles set out for the exercise of the power to set aside bail.

12. In Devendar Gupta v. National Investigation Agency 3, a

Division Bench of combined High Court of Andhra Pradesh at

Hyderabad had considered the relevant provisions of UAPA, the

expression used in Section - 43-D (5) of UAPA i.e., 'prima facie'

'reasonable grounds' etc. and laid down certain instances or

. 2014 (2) ALD (Cri) 251

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circumstances which would provide adequate guidance for the Court

to form an opinion, as to whether the accusation in such cases is

'prima facie true'.

"The following instances or circumstances, in our view, would provide adequate guidance for the Court to form an opinion, as to whether the accusation in such cases is "prima facie true":

1) Whether the accused is/are associated with any organization, which is prohibited through an order passed under the provisions of the Act;

2) Whether the accused was convicted of the offences involving such crimes, or terrorist activities, or though acquitted on technical grounds; was held to be associated with terrorist activities;

3) Whether any explosive material, of the category used in the commission of the crime, which gave rise to the prosecution;

was recovered from, or at the instance of the accused;

4) Whether any eye witness or a mechanical device, such as CC camera, had indicated the involvement, or presence of the accused, at or around the scene of occurrence; and

5) Whether the accused was/were arrested, soon after the occurrence, on the basis of the information, or clues available with the enforcement or investigating agencies."

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13. In M. Londhoni Devi v. National Investigation Agency 4,

a Division Bench of Gauhati High Court held that accused is an active

member of a terrorist organization, even then the nature of active

involvement would depend on the evidence led by the prosecution.

On a given set of facts, even an active member may be sentenced to

imprisonment only for a short while, every active member need not be

sentenced to imprisonment for life. Therefore, merely because an

allegation has been made, the appellant is an active member of a

terrorist organization, such as UNLF would not ipso facto attract the

severest penalty under the Statute.

14. In Dhan Singh v. Union of India 5, a Division Bench of the

Bombay High Court held that the word "prima facie" is coupled with

the word "true", it implies that the Court has to undertake an exercise

of crosschecking the truthfulness of the allegations made in the

complaint, on the basis of the materials on record. If the Court finds,

on such analysis, that the accusations are inherently improbable or

wholly unbelievable, it may be difficult to say that a case, which is

"prima facie true", has been made out. In doing this exercise, the

Court has no liberty to come to a conclusion, which may virtually

. 2012 (110) AIC 384

. MANU/MH/3894/2019

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amount to an acquittal of the accused. Mere formation of opinion by

the Court, on the basis of the material placed before it, is sufficient.

The Court also has to undertake an exercise of cross-checking

truthfulness of the allegations made in the complaint, on the basis of

the material on record.

15. In Yedala Subba Rao v. Union of India 6, the Apex Court

referring to Sections - 25, 26 and 27 of the Evidence Act held that the

essential ingredient of the Section - 27 is that the information given by

the accused must lead to the discovery of the fact which is the direct

outcome of such information. Secondly, only such portion of the

information given as is distinctly connected with the said recovery is

admissible against the accused. Thirdly, the discovery of the fact must

relate to the commission of some offence. The embargo on statements

of the accused before the police would not apply if all the above

conditions are fulfilled.

16. In Vernon vs. State of Maharashtra 7, the Apex Court

considering the principle laid down by it in National Investigation

. (2023) 6 SCC 65

. 2023 SCC OnLine SC 885

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Agency vs. Zahoor Ahmad Shah Watali 8 in paragraph No.36 held

as under:

36. In the case of Zahoor Ahmad Shah Watali (supra), it has been held that 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 charge sheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie "test" unless there is at least surface-

analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth. In the case of the appellants, contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused

. (2009) 5 SCC 1

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are in the nature of ideological propagation and allegations of recruitment. No evidence of any of the persons who are alleged to have been recruited or have joined this "struggle" inspired by the appellants has been brought before us. Thus, we are unable to accept NIA's contention that the appellants have committed the offence relating to support given to a terrorist organisation."

The Apex Court also considered the scope of 'Terrorist Act' defined

under Sections - 2 (k) and 15 of UAPA and referring to several

judgments rendered by it held that mere holding of certain literatures

through which violent acts may be propagated would not ipso facto

attract the provisions of Section - 15 (1) (b) of the UAPA.

17. In Anand Tetlumbde v. The National Investigation

Agency 9, a Division Bench of Bombay High Court on consideration

of material placed before it and also referring to the provisions of

UAPA held that while dealing with bail application, Court has to

consider that the material placed by the Investigating Agency has to

inspire confidence to bring the accused act as alleged for punishment

prescribed under the provisions of the UAPA and also the criminal

antecedents.

. 2023 (1) Bom.CR (Cri) 416

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18. It is relevant to note that in Gurwinder Singh vs. State of

Punjab 10, the Apex Court considering the scope of Section - 43-D of

the UAPA and also the principle laid down by it earlier cases

including Zahoor Ahmad Shah Watali (Supra) held as under:

"19. 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 scrutinizing 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'. In fact, the Supreme Court in Zahoor Ali Watali2 has noticed this difference, where it said:

"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."

. 2024 LiveLaw (SC) 100

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20. 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.

21. 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 summarized 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

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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')?

On a consideration of various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused etc., the Courts must ask itself:

2.1 Whether the accused is a flight risk?

2.2. Whether there is apprehension of the accused tampering with the evidence?

2.3 Whether there is apprehension of accused influencing witnesses?

22. The question of entering the 'second test' of the inquiry will not arise if the 'first test' is satisfied. And merely because the first test is satisfied, that does not mean however that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the 'tripod test'.

Test for Rejection of Bail: Guidelines as laid down by Supreme Court in Watali's Case

23. In the previous section, based on a textual reading, we have discussed the broad inquiry which Courts seized of bail applications under

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Section 43D(5) UAP Act r/w Section 439 CrPC must indulge in. Setting out the framework of the law seems rather easy, yet the application of it, presents its own complexities. For greater clarity in the application of the test set out above, it would be helpful to seek guidance from binding precedents. In this regard, we need to look no further than Watali's case which has laid down elaborate guidelines on the approach that Courts must partake in, in their application of the bail limitations under the UAP Act. On a perusal of paragraphs 23 to 29 and 32, the following 8-point propositions emerge and they are summarized as follows:

• Meaning of 'Prima facie true' [para 23]: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence.

• Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and Post Charges -

Compared [para 23]: 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

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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.

• Reasoning, necessary but no detailed evaluation of evidence [para 24]: The exercise to be undertaken by the Court at this stage--of giving reasons for grant or nongrant 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.

• Record a finding on broad probabilities, not based on proof beyond doubt [para 24]: "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."

• Duration of the limitation under Section 43D(5) [para 26]: 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.

• Material on record must be analysed as a 'whole'; no piecemeal analysis [para 27]: The totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.

• Contents of documents to be presumed as true [para 27]: The Court must look at the contents of the document and take such document into account as it is.

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• Admissibility of documents relied upon by Prosecution cannot be questioned [para 27]: The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence....... In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible.

24. It will also be apposite at this juncture to refer to the directions issued in Devender Gupta v. National Investigating Agency [(2014 (2) ALD Cri.251] wherein a Division Bench of the High Court of Andhra Pradesh strove to strike a balance between the mandate under Section 43D on one hand and the rights of the accused on the other. It was held as follows:

"The following instances or circumstances, in our view, would provide adequate guidance for the Court to form an opinion, as to whether the accusation in such cases is "prima facie true":

1) Whether the accused is/are associated with any organization, which is prohibited through an order passed under the provisions of the act;

2) Whether the accused was convicted of the offenses involving such crimes, or terrorist activities, or though acquitted on technical grounds; was held to be associated with terrorist activities;

3) Whether any explosive material, of the category used in the commission of the crime, which gave rise to the prosecution; was recovered from, or at the instance of the accused;

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4) Whether any eye witness or a mechanical device, such as CC camera, had indicated the involvement, or presence of the accused, at or around the scene of occurrence; and

5) Whether the accused was/were arrested, soon after the occurrence, on the basis of the information, or clues available with the enforcement or investigating agencies."

25. In the case of Kekhriesatuo Tep and Ors. v. National Investigation Agency [(2023) 6 SCC 58] the Two-Judge Bench (Justice B.R. Gavai & Justice Sanjay Karol) while dealing with the bail application for the offence of supporting and raising funds for terrorist organization under section 39 and 40 of the UAP Act relied upon NIA v. Zahoor Ahmad Shah Watali [(2019) 5 SCC 1] and observed that:

"while dealing with the bail petition filed by the accused against whom offences under chapter IV and VI of UAPA have been made, the court has to consider as to whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. The bench also observed that distinction between the words "not guilty" as used in TADA, MCOCA and NDPS Act as against the words "prima facie" in the UAPA as held in Watali's Case (supra) to state that a degree of satisfaction required in the case of "not guilty" is much stronger than the satisfaction required in a case where the words used are "prima facie"

26. In the case of Sudesh Kedia v. Union of India [(2021) 4 SCC 704] the Bench of Justice Nageswara Rao and Justice S. Ravindra Bhat while

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dealing with a bail application for the offence u/s. 17, 18 and 21 of the UAP Act relied upon the principle propounded in Watali's case (supra) and observed that:

"the expression "prima facie" would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows that 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."

19. In the light of the principle laid down in the aforesaid

judgments, it is relevant to note that the allegations levelled against

the appellant - accused are that he along with A.1 to 6 got acquainted

with the underground cadres of the proscribed organization CPI

(Maoist) i.e., accused Nos.8 to 11 and others and criminally conspired

with them to supply explosive and other items which are used to make

landmines and IED and firearms. In pursuance of the said conspiracy,

accused Nos.1 to 3 purchased one Lathe Machine, used to cut the iron

rods to make firearms, one Drone to observe the Police Party

movements in the forest area and also received explosive substances

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from accused Nos.4 to 7, who had received from the appellant/A.12.

While accused Nos.1 to 3 were trying to supply the aforesaid items to

the banned CPI (Maoist) Party leaders in pursuance of the aforesaid

conspiracy, they were apprehended by the Police on 05.06.2023 at

16.00 hours at the outskirts of Dosillapalli Village, Cherla Mandal.

20. It is no doubt true, that the Central Government banned the

Communist Party of India (Maoist) under the UAPA terming it a

terrorist organization. It is also not in dispute that in pursuance of the

criminal conspiracy, the appellant said to have committed the

aforesaid offences. No doubt that there are serious allegations against

him and also against the accused. However, the NIA on completion of

investigation, laid the charge sheet against the accused including the

appellant herein. Incriminating material was seized and produced

before the Designated Court. The appellant is in judicial custody

since 12.06.2023 i.e. more than 180 days. He was arrested in Cr.No.50

of 2023 of Dummuguda Police Station and produced before the

learned Magistrate on P.T. warrant in Cr.No.52 of 2023. The only

apprehension of the NIA is that they have recorded the statements of

protected witnesses, there is every possibility of the appellant

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threatening them and interfering with trial, in which event, the

Designated Court will not be in a position to conduct fair trial.

21. It is apt to note that if the appellant threaten any witness

including protected witnesses or interfere with fair trial, NIA can as

well file an application seeking cancellation of bail. But, it cannot be

a ground to oppose bail or deny bail by this Court. It is also apt to

note that there is no loss of property and loss of life of any person. At

the same time, the appellant cannot resort to illegal activities.

22. It is also apt to note that Section - 2 (k) of UAPA defines

'terrorist act'; Section - 2 (o) defines 'unlawful activity'; Section - 2

(p) defines 'unlawful association'; and Section - 15 deals with

'terrorist act'. In the said provisions, there is no mention that

provoking, recruitment, administering oath, sending to training camps

etc., which are the allegations leveled against the appellant, amount to

'terrorist act'. Section - 18 of the UAPA deals with punishment for

conspiracy etc. Section 20 deals with punishment for being member of

terrorist gang or organization. It is only a penal provision. Ultimately

it has to be proved by NIA by producing evidence.

23. Admittedly, in the present case, the Investigating Officer

has already completed investigation and laid charge sheet. Cognizance

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was taken. It is at the stage of 207 Cr.P.C. Definitely, trial will take

certain time. As discussed above, the appellant is in jail since more

than 180 days. The appellant herein is a businessman. Right

guaranteed to them under Article - 21 of the Constitution of India is

also to be considered.

24. The Apex Court referred to the factors to be borne in mind

while considering an application for bail in Prasanta Kumar Sarkar v

Ashis Chatterjee 11, and the said factors are as follows:

"(i) whether there is any prima facie or reasonable ground to believe that the Accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the Accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the Accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

25. As discussed supra, the only apprehension of the NIA is that

the appellant may threaten the witnesses including protected witnesses

and may interfere with the trial in which event the Special Court may

not be in a position to conduct fair trial. In such an event, NIA is at

liberty to file an application seeking cancellation of bail.

. (2010) 14 SCC 496

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26. It is apt to note that bail was granted to the

appellant/accused in Cr.No.50 of 2023 of Dummuguda Police Station.

27. As already stated above, the entire investigation was

completed and charge sheet was laid against the appellant and other

accused by NIA. In fact, on the application filed by the NIA, the

judicial remand of the appellant/A.12 was extended. In the light of the

same, nothing remains to investigate by the NIA except to proceed

with trial before the Special Court against the appellant in accordance

with procedure laid down under Code of Criminal Procedure, 1973.

Therefore, we are of the considered view that the appellant is entitled

for bail. However, in view of gravity of the offences said to have

committed by the appellant and to secure his presence before the

Designated Court to proceed with trial, some stringent conditions to

be imposed while granting bail. The said aspects were not considered

by the Designated Court while dismissing the bail application filed by

the appellant. Therefore, the impugned order is liable to be set aside.

However, the findings reached by this Court in granting bail are only

prima facie views expressed by this Court herein in deciding the

present appeal and the same will not have any bearing on the Special

Court while deciding the main Sessions Cases.

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28. It is apt to note that vide order dated 21.03.2024, we have

granted bails to A.1, A.3, A.6 and A.7 on imposition of certain

conditions. The appellant/A.12 is also standing on the same footing

and to maintain parity, he is also entitled for bail.

29. This Criminal Appeal is allowed and the impugned order,

dated 16.12.2023 in Crl.M.P. No.1767 of 2023 in RC-03/2023/

NIA/HYD passed by learned IV Additional Metropolitan Sessions

Judge - cum - Special Court for NIA Cases, Nampally, Hyderabad, is

hereby set aside. The appellant - accused No.12 is enlarged on bail

with the following conditions:

i) The appellant - accused No.12 shall execute a personal bond for

Rs.25,000/- (Rupees Twenty Five Thousand Only) with two

(02) sureties for a like sum each to the satisfaction of IV

Additional Metropolitan Sessions Judge - cum - Special Court

for NIA Cases, Nampally, Hyderabad;

ii) The appellant - accused No.12 shall report before the Station

House Officer, Janagoan Police Station, Janagoan District once

in a week i.e., on every Sunday between 10.00 A.M. and 5.00

P.M. until further orders;

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iii) He shall not commit similar or any other offences during bail

period;

iv) He shall not threaten, intimidate or influence the prosecution

witnesses including protected witnesses;

v) He shall not interfere with the trial in the said Case in any

manner directly or indirectly;

vi) He shall surrender his Passports, if not surrendered before the Designated Court;

vii) He shall co-operate with the Designated Court in disposal of

the aforesaid Sessions Case in accordance with law as

expeditiously as possible.

viii) Liberty is granted to NIA to file an application seeking