Page No.# 1/25

GAHC010266442013

2024:GAU-AS:9516-DB

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./257/2013

ASSOCIATION FOR EXTENSIVE GROWERS INNOVATIVE SERVICE AEGIS

HAVING ITS HEAD AND REGISTERED OFFICE AT MATAI

LUWNGSANGBAM, IMPHAL 795002, REPRESENTED BY ITS SECY. N BOMI

SINGH

VERSUS

THE STATE THROUGH NATIONAL INVESTIGATION AENCY NIA

Advocate for the Petitioner : MRSSHEELA KH., MR.B BASUMATARY,MR.M G SINGH

Advocate for the Respondent : , ,SC, NIA Page No.# 1/25

GAHC010266442013

2024:GAU-AS:9516-DB

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.A./257/2013

ASSOCIATION FOR EXTENSIVE GROWERS INNOVATIVE SERVICE AEGIS

HAVING ITS HEAD AND REGISTERED OFFICE AT MATAI

LUWNGSANGBAM, IMPHAL 795002, REPRESENTED BY ITS SECY. N BOMI

SINGH

VERSUS

THE STATE THROUGH NATIONAL INVESTIGATION AENCY NIA

Advocate for the Petitioner : MRSSHEELA KH., MR.B BASUMATARY,MR.M G SINGH

Advocate for the Respondent : , ,SC, NIA

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BEFORE

HON’BLE MR. JUSTICE KALYAN RAI SURANA

HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

JUDGMENT AND ORDER

(C.A.V.)

For the appellantsMr. D.K. Mishra, Senior Advocate

Mr. B. Prasad, Advocate.

For N.I.A. Mr. D.K. Das, Senior Advocate

Ms. P.K. Darjee, Ms. G.D. Choudhury

Mr. D. Choudhury, Advocates.

For the Union of

India

Mr. R.K.D. Choudhury, D.S.G.I.

Ms. L. Devi, Advocate

Dates of hearing01.02.2024, 04.02.2024, 05.02.2024,

06.02.2024, 07.02.2024, 15.02.2024,

16.02.2024, 16.02.2024, 19.02.2024,

20.02.2024, 21.02.2024, 22.02.2024,

23.02.2024, 26.02.2023, 27.02.2024,

28.02.2024, 29.02.2024. 01.03.2024 and

12.08.2024.

Date of judgment23.09.2024

(K.R. Surana, J.)

Heard Mr. D.K. Mishra, learned Senior Counsel, assisted by Mr. B. Prasad,

learned counsel for the appellant. Also heard Mr. D.K. Das, learned Senior

Counsel, assisted by Ms. G.D. Choudhury, learned counsel for the sole

respondent. With the permission of the Court, Mr. R.K. D. Choudhury, learned

DSGI has also made his submissions.

2) The movable and immovable properties of the appellant i.e. the

Association for Extensive Growers Initiative Service (AEGIS for short) was

attached by the Chief Investigation Officer of NIA Case No. 10/2010, vide

Memorandum of Attachment dated 11.11.2011 (Ext.94). Consequently, the

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order of attachment dated 11.11.2011 (Ext.95) was also made by the same

authority. Thereafter, by an order under No. 11034/20/2010-IS-VII(IV) dated

29.12.2011 (Ext.184) was issued by Sri Dharmendra Sharma, Joint Secretary

(IS-I), Govt. of India, MHA & Designated Authority, thereby confirming the order

of attachment under section 25 of the Unlawful Activities (Prevention) Act, 1967

[hereinafter referred to as ‘UA(P)A” for short]. Aggrieved by the said orders, the

present appeal has been filed by the appellant under section 25(6) of the

UA(P)A.

3) It would be appropriate to mention herein that this appeal was

listed together with Crl. Appeal nos. 169/2016, 262/ 2016, 263/2016, 264/2016,

265/2016, 289/2016, 291/2016, 295/2016, 299/ 2016, Crl.A.113/2017,

115/2017 and 145/2017. With the consent of the learned senior counsel for the

appellant as well as the learned senior counsel for the sole respondent, this

appeal was heard analogously with the other criminal appeals.

Submissions of the learned senior counsel for the appellant:

4) The learned senior counsel for the appellant has submitted that

AEGIS was carrying out legitimate business of food processing and had invested

a huge amount of money for setting up a pineapple processing plant, which

partly financed by way of long term assistance of Rs.28.00 lakh, provided by the

Govt. of India, Ministry of Agriculture and that the project was also partly

financed by the Ministry of Food Processing by way of providing grant of

Rs.56.00 lakh. The said project was also financed by the Imphal Urban

Cooperative Bank (IUCB for short). Accordingly, it was submitted that the

attachment of assets of the respondent was not sustainable on facts and in law.

Submissions by the learned senior counsel for respondent:

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5) Per contra, the learned senior counsel for the respondent has

questioned the maintainability of this appeal on the ground that no appeal was

preferred after the attachment order was passed and that the present appeal

was belatedly filed.

6) The learned senior counsel for the respondent has submitted

that the detailed investigation was done by the NIA and in course of

investigation it was found that AEGIS was a front organisation of United

National Liberation Army (hereinafter referred to as UNLF for short).

Accordingly, the Chief Investigating Officer, i.e. Sri S.P. Pani, who was examined

as PW-84 in the connected criminal appeals, who was having the statutory

power under section 25(1) of the UA(P)A to conduct search and to make seizure

of property, on 11.11.2010, had attached the assets of AEGIS (appellant), as

the said assets was out of the proceeds of terrorism. Consequently, the order of

attachment was also made on 11.11.2010. A copy of above is stated to have

been served on Secretary of AEGIS, namely, N. Bomi Singh (since deceased),

who is arrayed as accused no. 23 in Special NIA Case No.1/2010.

7) It has been submitted that under section 25(2) of the UA(P)A,

the Investigating Officer is required to inform the Designated Authority with 48

hours of such seizure and attachment. Under section 25(3), the Designated

Authority before whom the seized property is produced is required to either

confirm or revoke the order of seizure or attachment within the time prescribed

after providing an opportunity to the person concerned of making a

representation.

8) It is also submitted that as the seized cash was produced before

the Designated Authority, the said authority had passed an order of retention of

cash.

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9) Consequently, the Designated Authority had passed an order

dated 29.12.2011, thereby confirming the attachment.

Submissions of the learned DSGI:

10) Per contra, the learned DSGI by referring to evidence of the

herein below noted prosecution witnesses, examined by prosecution in

connection with Spl. NIA Case No. 1/2010, it was submitted that their evidence

implicates the appellant i.e. AEGIS to be a front organisation of UNLF. It is also

submitted that from the e-mails retrieved by PW-80 from the e-mail of M. Joy

Singh and R.K. Meghen (accused nos. 18 and 19 in Spl. NIA Case No. 1/2010),

it has been established that the UNLF, as a part of their strategy and cover as

well as to build up its financial assets, invested their money in different projects

and companies including AEGIS.

11) It was submitted that the prosecution has been able to prove that

the food industry of AEGIS was established and financed by UNLF and that the

affairs of AEGIS was administered by UNLF through N. Bomi Singh (since

deceased), Y. Brajabuidhu Singh and A. Ibomcha Singh (accused nos. 23, 24

and 25 in Spl. NIA Case No. 1/2010).

12) To support his contentions, the learned DSGI has referred to the

following documents exhibited in Spl. NIA Case No. 1/2010, viz., (i) minutes of

AEGIS (Ext. Nos. 190/1 to 190/5), attended by the herein before referred N.

Bomi Singh (since deceased), Y. Brajabuidhu Singh and A. Ibomcha Singh

(accused nos. 23, 24 and 25 in Spl. NIA Case No. 1/2010); (ii) Ext. Nos. 191/1

to 191/8, which shows how UNLF takes decisions on manufacturing and

marketing of AEGIS items; (iii) e-mails (Ext. No. 192/1 to 192/7) containing

accounts of AEGIS sent to R.K. Meghen (accused no. 19 in Spl. NIA Case No.

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1/2010); (iv) e-mails (Ext.193/1 to 193/12) sent to R.K. Meghen (accused no.

19 in Spl. NIA Case No. 1/2010) showing direct interference by UNLF in decision

making of AEGIS; and (v) e-mails (Ext.194/1 to 194/2 to R.K. Meghen (accused

no. 19 in Spl. NIA Case No. 1/2010), which proves that AEGIS is controlled by

the said R.K. Meghen, who was the then Chairman of UNLF.

Maintainability of this appeal:

13) The respondent did not object to the maintainability of this appeal

when the appeal was admitted for hearing and therefore, there is a deemed

waiver of objection. Moreover, no affidavit-in-opposition has been filed by the

respondent and therefore, no objection as to maintainability of this appeal is

pleaded by the respondent.

14) Be that as it may, the appellant had made a statement in the

memorandum of this appeal, explaining the delay in filing the appeal. Therefore,

the appeal is held to be maintainable on facts and in law as provided under

section 26 of the UA(P)A.

Discussion and decision on merit:

15) Considered the submissions as well as deposition of witnesses on

which reliance was placed and also perused the relevant documentary evidence

available on record, on which reliance was placed by both sides.

16) Before examining the evidence and materials on record, it would

be appropriate to refer to some statutory provisions of UA(P)A, which are

referred below:-

Legal provisions relevant to this appeal:

17) The relevant provisions of clause (g), (h) and (k) of Sub-Section

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(1) of section 2 and the provisions of sections 21, 24, 24(A), 26 and 28 of

UA(P)A are quoted below:

2(g) “proceeds of terrorism” means all kinds of properties which have been derived

or obtained from commission of any terrorist act or have been acquired through

funds traceable to a terrorist act, irrespective of person in whose name such

proceeds are standing or in whose possession they are found, and includes any

property which is being used, or is intended to be used, for the purpose of a

terrorist organisation;

2(h) “property” means property and assets of every description, whether corporeal

or incorporeal, movable or immovable, tangible or intangible and deeds and

instruments evidencing title to, or interest in, such property or assets, and includes

cash and bank account;

2(k) “terrorist act” has the meaning assigned to it in section 15, and the

expressions “terrorism” and “terrorist” shall be construed accordingly;

S.21 Punishment for holding proceeds of terrorism.- Whoever knowingly holds any

property derived or obtained from commission of any terrorist act or acquired

through the terrorist fund shall be punishable with imprisonment for a term which

may extend to imprisonment for life, and shall also be liable to fine.

S.24 Forfeiture of proceeds of terrorism.- (1) No person shall hold or be in

possession of any proceeds of terrorism.

(2) Proceeds of terrorism, whether held by a terrorist or by any other person

and whether or not such terrorist or other person is prosecuted or convicted for

any offence under Chapter IV or Chapter VI, shall be liable to be forfeited to the

Central Government or the State Government, as the case may be, in the manner

provided under this Chapter.

24A. Forfeiture of proceeds of terrorism.—(1) No person shall hold or be in

possession of any proceeds of terrorism.

(2) Proceeds of terrorism, whether held by a terrorist organisation or terrorist

gang or by any other person and whether or not such terrorist or other person is

prosecuted or convicted for any offence under Chapter IV or Chapter VI, shall be

liable to be forfeited to the Central Government or the State Government, as the

case may be, in the manner provided under this Chapter.

(3) Where proceedings have been commenced under this section, the court

may pass an order directing attachment or forfeiture, as the case may be, of

property equivalent to, or, the value of the proceeds of terrorism involved in the

offence.

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26. Court to order forfeiture of proceeds of terrorism.- Where any property is seized

or attached on the ground that it constitutes proceeds of terrorism and the court

confirms the order in this regard under sub-section (6) of section 25, it may order

forfeiture of such property, whether or not the person from whose possession it is

seized or attached, is prosecuted in a court for an offence under Chapter IV or

Chapter VI.

28. Appeal. (1) Any person aggrieved by an order of forfeiture under section 26

may, within one month from the date of the receipt of such order, appeal to the

High Court within whose jurisdiction, the court, which passed the order appealed

against, is situated.

(2) Where an order under section 26 is modified or annulled by the High Court

or where in a prosecution instituted for any offence under Chapter IV or Chapter

VI, the person against whom an order of forfeiture has been made under section

26 is acquitted, such property shall be returned to him and in either case if it is not

possible for any reason to return the forfeited property, such person shall be paid

the price therefor as if the property had been sold to the Central Government with

reasonable interest calculated from the day of seizure of the property and such

price shall be determined in the manner prescribed.

18) In connection with the trial of Spl. NIA Case No. 1/2010, the

prosecution had examined 84 witnesses, including Rakesh Kumar Jain (PW-24);

N. Holland Singh (PW-29); B. Haridas Sarma (PW-43); O.S. Ashok (PW-64);

Dharmendra Sharma (PW-77); Surinder Singh Bakshi (PW-79); Aseem

Srivastava (PW-80); Swyam Prakash Pani (PW-84). The learned senior counsel

for both sides had extensively relied on the evidence of above named witnesses

in Spl. NIA Case No. 1/2010. The record of their evidence is available in the Trial

Court Record (TCR for short) of Spl. NIA Case No. 1/2010. The said record was

called for in connection with the connected criminal appeals, i.e. Crl. Appeal

nos. 169/2016, 262/2016, 263/ 2016, 264/2016, 265/2016, 289/ 2016, 291/

2016, 295/2016, 299/2016, Crl.A.113/2017, 115/ 2017 and 145/2017.

19) It may be mentioned that the impugned memorandum of

attachment and order of attachment, both dated 11.11.2011 and the impugned

order dated 29.12.2011, confirming the attachment, were not the subject

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matter of decision by the Court of Special Judge, NIA, Guwahati in connection

with Special NIA Case No. 1/2010 tried and decided by it. Therefore, the Court

is of the considered opinion that the memorandum and order of attachment

dated 11.11.2011 and confirmation order dated 29.12.2011, which are the

subject matter of challenge in this appeal are liable to be examined without

being influenced with the judgment and sentence that has been passed by the

Special Judge, NIA, Assam in Spl. NIA Case No. 1/2010 because AEGIS has not

been arrayed as an accused in Spl. NIA Case No. 1/2010.

20) As both sides have extensively referred to the record of evidence

available in connection with the trial of Spl. NIA Case No. 1/2010, which was

called for in connection with the connected criminal appeals, it would be

relevant to examine the evidence of the prosecution witnesses on which both

sides have placed reliance.

Relevant evidence in the trial of Spl. NIA Case No. 1/2010, which was tried by

the learned Special Judge, NIA, Assam at Guwahati:

(i) Evidence of Rakesh Kumar Jain and its analysis:

21) Rakesh Kumar Jain, who was examined as PW-24 in connection

with Spl. NIA Case No. 1/2010 is a Chartered Accountant. On a perusal of his

evidence, it is observed that the learned Trial Court had misread and

misconstrued his deposition and recorded an erroneous finding to the effect that

Y. Brajabidhu Singh (accused no. 24 in Spl. NIA Case No.1/ 2010) was involved

with UNLF without considering the evidence on record that the loan that was

obtained by AEGIS from IUCB was repaid by liquidating the fixed deposit

receipts of the said society.

22) Moreover, the said witness had stated that “some of the

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contributions were not supported by proper documents.” However, in paragraph

54 of the judgment in Spl. NIA Case No. 1/2010, the aforesaid statement of PW-

24 was wrongly recorded to the effect that “large number of contributions were

not supported by documents and he found other anomalies.”

23) As the said witness, namely, Rakesh Kumar Jain had disclosed

that a part of the funds of AEGIS was received from the Government of India, it

must be presumed that finance made available by the Govt. of India and by the

IUCB cannot be considered and/or held proceeds of terrorism.

24) Moreover, after examining the balance sheet, the said witness had

not stated how much unaccounted assets including money was possessed by

the AEGIS, so as to quantify the value of assets which could then be presumed

to be the proceed of terrorism or any terrorist act of UNLF.

25) Therefore, from the evidence of Rakesh Kumar Jain, the

prosecution has not been able to show that any property or assets of AEGIS is

out of the proceeds of terrorism or funded by UNLF.

(ii) Evidence of N. Holland Singh (PW-29) and its analysis:

26) In the proceeding of Spl. NIA Case No. 1/2010, N. Holland Singh

was examined as PW-29). The learned senior counsel for the respondent has

not been able to show how his evidence helps to establish that AEGIS is the

front organisation of UNLF and that the assets of AEGIS is borne out of the

proceeds of terrorism. In his examination-in- chief, N. Holland Singh has merely

stated that Sri B. Haridas Sharma (PW-43 in Spl. NIA Case No.1/2010) was the

then President of AEGIS. He had also stated that Sri N. Bomi Singh (since

deceased) (A-23 in Spl. NIA Case No.1/2010) and Y. Brajabidhu Singh (A-24 in

Spl. NIA Case No.1/2010) are the Executive Member and Secretary respectively

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of AEGIS.

27) The said witness has not made any incriminating statement

against AEGIS in his evidence by which it can be culled out that the business

and properties of AEGIS is funded by UNLF. Therefore, from the evidence of

Rakesh Kumar Jain, the prosecution has not been able to show that any

property or assets of AEGIS is out of the proceeds of terrorism or funded by

UNLF.

(iii) Evidence of B. Haridas Sarma (PW-43) and its analysis:

28) In his examination-in- chief, B. Haridas Sarma, who was examined

as PW-43 in Spl. NIA Case No.1/2010, had stated that he had joined AEGIS

after he had retired as Director, Agriculture, Govt. of Manipur. At the time when

NIA had closed the operation of AEGIS, he was working as the President of the

Executive Committee. He had stated that before he became the President, Y.

Brajabidhu Singh (accused no. 24 in Spl. Case No. 1/2010) was the President of

AEGIS. He had further stated that the initial capital of AEGIS was Rs.197.00

lakh, which was later revised to Rs.206.00 lakh. He had also stated that a sum

of Rs.50.00 lakh was taken as loan from IUCB when Brajabidhu Singh was the

President of AEGIS, which was not utilized and returned. Ext.93 (in Spl. Case

No. 1/2010) is the statement of B. Haridas Sarma recorded under section 164

CrPC before the Magistrate, 1

st

Class, Kamrup, Guwahati on 24.05.2011 and

Ext.93/1 and 93/2 marked therein are his signatures thereon. Ext.94 (in Spl.

Case No. 1/2010) is the attachment notice and Ext.94/1, 94/2 and 93/3

exhibited therein are his signatures on the said document. Ext.95 (in Spl. Case

No. 1/2010) is the notice under section 25(1) of UA(P)A, addressed to N. Bomi

Singh (since deceased) (accused no. 23 in Spl. Case No. 1/2010), who is

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Secretary, AEGIS, and Ext.95/1 is the signature of N. Bomi Singh (since

deceased), as token of receipt of that notice. He had also exhibited statement of

accounts (Ext.96 in Spl. Case No. 1/ 2010) of AEGIS prepared by Rakesh Kumar

Jain, the Chartered Accountant for the period from 16.06.2006 to 31.03.2007

and the signatures of Y. Brajabidhu Singh (accused no. 23 in Spl. Case No.

1/2010) as Ext.96/1 to 96/6.

29) In his cross-examination, B. Haridas Sarma had stated that AEGIS

had received long term loan of Rs.28.00 lakh from Ministry of Agriculture and

Ministry of Food Processing on approval of their project and a further sum of

Rs.56.00 lakh was received as grant. He had personally visited Delhi to meet

officials of concerned Ministries for availing such funds and loans. He does not

know how loan from IUCB was managed, but he was told that it was for book-

keeping. He had also stated that while proceeding towards the Court, he was

briefed by DSP, NIA by the name Bakshi about the statement to be given before

the Magistrate and after giving his statement, he was escorted back by the said

police officer. In his cross examination, when B. Haridas Sarma was confronted

with his statement made under section 164 CrPC that “Now in 2011, I came to

know that all these three aforesaid named three people have link with United

National Liberation Front (UNLF) and they invested money of this UNLF into our

Food Processing scheme of AEGIS”, he had replied that he did not actually said

the said portion of statement to the Magistrate. He had also stated that he

cannot remember if his statement under section 164 CrPC was read over to him

by the Magistrate. He had also stated that he does not remember the name of

UNLF member with whom Brajabidhu Singh (accused no. 24 in Spl. NIA Case

No. 1/2010) is related.

30) Thus, no incriminating materials against AEGIS can be culled out

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from the evidence of PW-43. Rather, from the evidence of PW-43, the

prosecution has proved that AEGIS had received funds from the Central

Government through Ministry of Agriculture and Ministry of Food Processing,

which cannot be said to be a fund provided by UNLF through terrorist act. Part

of the funding was also received through loan of Rs.65.00 from IUCB, which

was returned by liquidating fixed deposit receipts. The aforesaid component of

funds cannot be said to be proceeds derived from terrorist act.

Evidence of O.S. Ashok (PW-64) and its analysis:

31) Shri O.S. Ashok, who was examined as PW-64 in Spl. NIA Case

No.1/2010, is the authorised person who had signed the prosecution sanction in

respect of N. Bomi Singh (since deceased) (accused no. 23 in Spl. NIA Case No.

1/2010), Y. Brajabidhu Singh (accused no. 24 in Spl. NIA Case No. 1/2010), A.

Ibomcha Singh (accused no. 25 in Spl. NIA Case No. 1/2010).

32) On a perusal of his evidence, it is seen that he had not disclosed

anything to identify which part of the property of AEGIS is derived from the

proceeds of terrorism.

Evidence of Dharmendra Sharma (PW-77) and its analysis:

33) Dharmendra Sharma, who was examined as PW-77 in Spl. NIA

Case No.1/2010, had stated that in the year 2011 he was posted as Joint

Secretary (Internal Security-1), MHA, Govt. of India and he was notified as the

Executive Authority under UA(P)A vide MHA notification dated 15.04.2011 and

that he was informed by S.P. Pani, Investigating Officer of NIA about two

separate seizure of cash of Rs.17.00 lakh in August, 2011 and attachment of

properties of AEGIS in November, 2011. He had passed an order on 18.08.2011,

confirming that the I/O had informed about seizure of cash suspected to be

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proceeds of terrorism during 48 hours. He had stated that the order dated

18.08.2011, confirming the retention of seizure of Rs.17.00 lakh was passed

after the inspection and confirmation of the cash amount in his office. He had

exhibited the said order dated 18.08.2011 as Ext.88 in Spl. NIA Case

No./1/2010, and Ext.88/1 therein is his signature. Ext.182 in Spl. NIA Case

No.1/2010 is the inspection and confirmation of seizure dated 18.08.2011 of

cash under Section 25(5) of the UA(P)A and Ext.82/1 therein is his signature.

34) He had also stated that on 12.11.2011, he was telephonically

informed by the Investigating Officer of NIA that the property of AEGIS is

suspected of being proceeds of terrorism of UNLF. Accordingly, on 24.11.2011,

he had passed an order under Section 25 of the UA(P)A, and thereby gave two

weeks (15 days) time to the Secretary of AEGIS to give a representation, if any,

against the proposed action of attaching the property of AEGIS. He had stated

that after considering the fact that Shri N. Bomi Singh (since deceased), the

then Secretary AEGIS (accused no. 23 in Spl. NIA Case No.1/2010 had

acknowledged the receipt of memorandum of attachment on 18.12.2011 and

had stated that he had no comment to offer on the proposed order of

attachment of the property, by the impugned order dated 29.12.2011, he had

confirmed the order of attachment of the said property under Section 25(3) of

the UA(P)A. Ext. 183 in Spl. NIA Case No.1/2010 is the fax message dated

11.11.2011 sent by S.P. Pani, informing the designated authority about

availability of sufficient material evidence regarding involvement of AEGIS with

the UNLF. Ext. 184 in Spl. NIA Case No.1/2010 is the order dated 29.12.2011

confirming the order of attachment of AEGIS, and Ext.184/1 is the signature of

Dharmendra Sharma (PW-77 in Spl. NIA Case No.1/2010). It is stated that the

copy of order was sent to N. Bomi Singh (since deceased), the then Secretary,

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AEGIS (accused no. 23 in Spl. NIA Case No. 1/2010). In his cross-examination,

the said witness had denied the suggestion that there was no material at all for

connecting the seized properties with any unlawful organization including UNLF.

35) On perusal of the materials available on record, the Court is

constrained to hold that the evidence of Dharmendra Sharma (PW-77 in Spl.

NIA Case No.1/2010), insofar as it relates to seizure of cash of Rs.17.00 lakh by

S.P. Pani (PW-84 in Spl. NIA Case No.1/2010) is not evidence against AEGIS. In

this regard, it may be mentioned that as per the contents of Ext.182 (of Spl.

NIA Case No. 1/2010), it discloses that seizure of cash of Rs.17.00 lakh was

made from Ngambam Robert Singh. There is no evidence to connect Ngambam

Robert Singh with AEGIS. Moreover, it is not the case of the prosecution that

Ngambam Robert Singh was holding a sum of Rs.17.00 lakh on behalf of AEGIS

or that the said sum of Rs.17.00 lakh was seized from Ngambam Robert Singh

because it was established or proved that the said money was a part of the

asset/ property of AEGIS. In Ext.183 (of the case of Spl. NIA Case No. 1/2010),

it is disclosed that during investigation, sufficient materials evidences have been

brought on record establishing the fact that the land, the building and other

appurtenant including the plants and machineries of AEGIS Food Processing Unit

at Makai, Mantripukhuri, Imphal represents the proceeds of terrorism of the

terrorist outfit UNLF. However, no material particulars based on which such

satisfaction was arrived at by Dharmendra Sharma has been discussed or

disclosed.

36) Moreover, by the impugned order dated 29.12.2011, passed by

Dharmendra Sharma (Ext.184 in Spl. NIA Case No.1/2010), the attachment of

the properties of AEGIS was confirmed. In the said order, it is only mentioned

that after going through the details of the case, connected documents as well as

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representation made by Shri Ningthoujam Bomi Singh (since deceased), the

then Secretary, AEGIS, Dharmendra Sharma (PW-77 in Spl. NIA Case

No.1/2010), who is the competent authority, has recorded his satisfaction that

the attachment made thereunder is a part of proceeds of terrorism, and as such

under Section 25(3) of UA(P)A, the order of attachment of the property was

confirmed. The material based on which satisfaction was arrived at by

Dharmendra Sharma have not been disclosed either in Ext.184 referred above

or produced before this Court.

37) Accordingly, in light of the discussions above, the Court is

constrained to hold that the evidence of Dharmendra Sharma is not a conclusive

proof regarding allegation that GEGIS is funded by UNLF or that any assets/

properties of AEGIS is funded out of proceeds of terrorism.

Evidence of Surinder Singh Bakshi (PW-79) and its analysis:

38) Surinder Singh Bakshi, who was examined as PW-79 in Spl. NIA

Case No. 1/2010, at the relevant time was the I.O. of the case from April, 2011

till filing of the charge-sheet. In his examination-in-chief, he had stated that

during investigation, he had assisted Swayam Prakash Pani, IPS, SP, NIA., who

was the Chief Investigating Officer. He had stated that on 10.01.2012, he had

arrested A-23, A-24 and A-25 in course of investigation and he had assisted the

said S.P. Pani in the attachment of the properties of AEGIS which were funded

by UNLF from the proceeds of terrorism. He had exhibited the memorandum for

attachment (Ext.94 in Spl. NIA Case No.1/2010) under section 25 of the UA(P)A

and his signature (Ext.94/4 to Ext.94/7) thereon. He had also exhibited the

seizure memo dated 10.11.2011 (Ext.56 of Spl. NIA Case No. 1/2010) regarding

seizure of some documents from Rakesh Kumar Jain, Partner of D.K. Vohra &

Co., Chartered Accountant of AEGIS and his signature thereon as Ext.56/18.

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39) The said Surinder Singh Bakshi had not proved the contents of

any document he had seized to show how and in what manner AEGIS was

funded by UNLF. His oral evidence cannot partake the character of proof

because he claims to be one of the Investigating Officer of the case and he had

seized financial statements of AEGIS and its bank accounts, but he did not make

any attempt to find out which part of the property or assets of AEGIS was

disproportionate to its known sources and then project that the unaccounted

value of property is created due to funds received from UNLF and/or such funds

was the proceeds of terrorism. He has also failed to show from any of the seized

document that any person who is at the helm of affairs of AEGIS were running

the management as handlers B. Haridas Sarma, N. Bomi Singh (since

deceased), Y. Brajabidhu Singh and A. Ibomcha Singh (accused nos. A-23, A-24

and A25 in Spl. NIA Case No. 1/2010) or by handling B. Haridas Sarma (PW-43

in Spl. NIA Case No. 1/2010, who was the President of AEGIS during the

relevant period.

40) Therefore, the oral evidence of said witness, namely, Surinder

Singh Bakshi has failed to prove the allegation that AEGIS is funded

Evidence of Aseem Srivastava (PW-80) and its analysis:

41) Shri Aseem Srivastava, who was examined as PW-80 in Sp. NIA

Case No.1/2010 has stated in his examination-in- chief that he had conducted a

part of investigation under instructions from Shri Swayam Prakash Pani, IPS, S.P.

and Chief Investigating Officer, NIA, New Delhi (PW-84 in Spl. NIA Case No.

1/2010).

42) In his evidence-in-chief, Aseem Srivastava has stated that on

03.02.2012, he took over the case as the Chief Investigating Officer as the

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previous Chief Investigating Officer went for compulsory training course. As per

his deposition, he had scrutinized all the case records, specially the retrieved

emails recovered from email accounts of Rajkumar Meghen @ Sanaiyaima

(accused no. 19 of Spl. NIA Case No. 1/2010) and M. Joy Singh @ Longyei

(accused no. 18 of Spl. NIA Case No. 1/2010). He has stated that on the basis

of those records and oral testimony of witnesses, it was established that in

order to gain its financial assets out of extorted money, the UNLF, as a part of

strategy and cover, invested money in different projects/companies including

AEGIS. He had stated that AEGIS had established its food processing unit that

was financed and administered by UNLF. He had also stated that UNLF had

made substantial investment in the AEGIS and handled its day-to-day affairs

through its over-ground members, namely, N. Bomi Singh (since deceased)

(accused no. 23 in Spl. NIA Case No. 1/2010), Y. Brajabidhu Singh (accused no.

24 in Spl. NIA Case No. 1/2010) and A. Ibomcha Singh (accused no. 25 in Spl.

NIA Case No. 1/2010), who were respectively the Secretary, Executive Member

and Treasurer of AEGIS. He had also submitted that the abovenamed persons

were handled by accused Kh. Tomba @ Pambei, N. Marjit @ Thabal, and

Rajkumar Meghen @ Sanayaima. He had stated that during the course of

investigation, property of AEGIS was attached and subsequently forfeited as it

was found (sic. word ought to have been “funded”) by proceeds of terrorism.

43) In the context of the above, it may be mentioned that out of the

three handlers named above, Kh. Tomba @ Pambei, and N. Marjit @ Thabal

were not arrayed as accused in Spl. NIA Case No. 1/2010 for reasons best

known to the prosecution.

44) Moreover, the said witness, namely, Aseem Srivastava in his oral

testimony has only made omnibus allegations against AEGIS without exhibiting

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any proof that any property or asset of AEGIS was funded by UNLF or that N.

Bomi Singh (since deceased) (accused no. 23 in Spl. NIA Case No. 1/2010), Y.

Brajabidhu Singh (accused no. 24 in Spl. NIA Case No. 1/2010) and A. Ibomcha

Singh (accused no. 25 in Spl. NIA Case No. 1/2010), were handled by accused

Kh. Tomba @ Pambei, N. Marjit @ Thabal, and Rajkumar Meghen @ Sanayaima

(accused no. 19 in Spl. NIA Case No. 1/2010.

45) Therefore, the evidence of Aseem Srivastava is not found to be

sufficient to establish that AEGIS is the front organisation of UNLF and that

assets and properties of AEGIS that was seized by NIA was out of funds of UNLF

or it was proceeds of terrorism.

Evidence of Swyam Prakash Pani (PW-84) and its analysis:

46) Swyam Prakash Pani, who was examined as PW-84 in Spl. NIA

Case No.1/2010, was the Chief Investigating Officer of NIA Case No.10/2010,

which was tried as Spl. NIA Case No.1/2010. In his examination-in- chief, he

had not exhibited any documentary evidence to prove that AEGIS was a front

organisation of UNLF. He had not identified which part of the attached

properties and assets of the AEGIS were financed by UNLF or otherwise created

out of proceeds of terrorism. However, he had denied in his cross-examination

that AEGIS had any connection with the UNLF or any other unlawful

organization.

47) Thus, the evidence of Swyam Prakash Pani also does not prove

that AEGIS was a front organisation of UNLF and moreover, he had not

identified which part of the attached properties and assets of the AEGIS were

financed by UNLF or otherwise created out of proceeds of terrorism.

Analysis of the evidence of the relevant witnesses referred herein above, who

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were examined in Spl. NIA Case No.1/2010:

48) None of the PWs examined by the prosecution in Spl. NIA Case

No. 1/2010 had stated that he or she was a victim of extortion and/or any other

terrorist act of UNLF. The prosecution has failed to prove that UNLF had

provided proceeds of terrorism to AEGIS and that any part of the assets and

properties which were attached vide memorandum of attachment and impugned

order of attachment dated 11.11.2011, was from proceeds of terrorism.

49) Thus, in the considered opinion of the Court, the prosecution i.e.

the respondents cannot get any advantage from the evidence of the

hereinabove referred prosecution witnesses that were examined in connection

with Spl. NIA Case No. 1/2010.

50) Be that as it may, as observed hereinbefore, the two orders

impugned in this appeal dated 11.11.2011 and 29.12.2011 are required to be

examined independent of the trial of Spl. NIA Case No. 1/2010, without being

influenced by the evidence and outcome of the said case as AEGIS was not

arrayed as an accused in the charge-sheet submitted in the said case.

51) As the AEGIS is not an accused in Spl. NIA Case No. 1/2010, no

court had any occasion to hold that a particular sum of money was received by

AEGIS and then converted into its movable and/or immovable properties and

assets, which were attached by NIA. There is, thus, no finding that any

properties and/or assets is created out of the proceeds of terrorism. Resultantly,

the respondents has not been able to show that any order was passed by the

learned Trial Court in the proceedings of Spl. NIA Case No. 1/2010, ordering

forfeiture of proceeds of terrorism as envisaged under section 26 of the UA(P)A.

52) As per the provisions of __ of the UA(P)A, notwithstanding that

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AEGIS is not an accused, but if any of its assets is obtained and/or created out

of proceeds of terrorism, such property can be attached. However, in this case,

NIA has failed to produce any documentary evidence to show that any part of

business of AEGIS was run from proceeds of terrorism. NIA has not made any

attempt to show before this Court that any of the assets and properties of

AEGIS was obtained beyond its known source of funds, which might have led to

a possible presumption that any reasonable man would believe that the

unaccounted money invested in procuring or creating assets of AEGIS was

obtained through proceeds of terrorism.

53) The evidence of Rakesh Kumar Jain, N. Holland Singh, B. Haridas

Sarma, O.S. Ashok, Dharmendra Sharma, Surinder Singh Bakshi, Aseem

Srivastava and Swyam Prakash Pani, as discussed hereinbefore are not sufficient

to establish that any money belonging to UNLF was used for funding the

operations of AEGIS or to create its assets and properties. Although the books

of accounts, profit and loss account, balance sheet, and bank statement of

AEGIS were seized and examined by NIA, they not been able to prove any

particular entry in any exhibited document which discloses that any money

collected by UNLF as a part of its proceeds of terrorism was employed to fund

any activity whatsoever of AEGIS or to finance procurement of any assets or

properties or part thereof that were seized by the NIA vide (a) memorandum of

attachment dated 11.11.2011, (b) order of attachment dated 11.11.2011, and

(c) confirmation order dated 29.12.2011.

Maintainability of this appeal:

54) By memorandum of attachment dated 11.11.2011, the properties

of AEGIS was attached, on the same date i.e. 11.11.2011, the order of

attachment was also passed by Dharmendra Sharma. Thereafter, the impugned

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order dated 29.12.2011 was also passed by Dharmendra Sharma. By the said

order dated 29.12.2011 (Ext.184 in Spl. NIA Case No. 1/2010), the attachment

of the properties of AEGIS was confirmed.

55) In the orders impugned herein, it is only mentioned that after

going through the details of the case, connected documents as well as

representation made by Shri Ningthoujam Bomi Singh (since deceased), the

then Secretary, AEGIS (accused no. 23 in Spl. NIA Case No. 1/2010,

Dharmendra Sharma (PW-77 in Spl. NIA Case No.1/2010), who is the

competent authority, has recorded his satisfaction that the attachment made

thereunder is a part of proceeds of terrorism, and as such under Section 25(3)

of UA(P)A, the order of attachment of the property was confirmed.

56) The learned senior counsel for the respondent had not been able

to show that merely because the order of attachment was not assailed earlier in

point of time i.e. immediately after the properties was attached on 11.11.2011,

any provision of statutory law prohibits the challenge to the order of attachment

dated 11.11.2011 and the order dated 29.12.2011, by which attachment was

confirmed.

57) Save and except making an order prayer before the Court to

decide the issue of maintainability, the respondents have not filed any affidavit-

in-opposition to question the maintainability of the present appeal in these 11

(eleven) years this appeal is pending for disposal.

58) Therefore, the Court is inclined to hold that the present appeal is

maintainable on facts and in law.

Decision:

59) In this appeal, the respondent has failed to demonstrate how and

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in what manner whole or any part of the assets and properties of AEGIS has

been funded through the proceeds of terrorism as defined under Section 2(1)(g)

and how any part of such properties of AEGIS can be linked with terrorist act as

defined under Section 2(1)(k) read with Section 15 of the UA(P)A.

60) Although heavy reliance has been placed on documents exhibited

in Spl. NIA Case No. 1/2010 as Ext.190/1 to Ext.190/5, Ext.191/1 to Ext.191/8,

Ext.192/1 to Ext.192/7, Ext.193/1 to Ext.193/12, Ext.194/1 to Ext.194/2. Those

exhibits do not establish that UNLF had funded AEGIS.

61) It may be stated that the emails referred above were not proved

in original, but emails which were translated from Meitei language to English by

an unknown person and correctness of which was vetted by protected witness

no.80, who was never examined in Court, were exhibited.

62) It is not the case of the prosecution that any property of AEGIS

was intended to be used for terrorism, which is an essential ingredient of

Section 24 of the UA(P)A. The prosecution has not been able to identify the

proceeds of terrorism, which is held by AEGIS, which is an essential ingredient

of Section 24(A) of the UA(P)A. Moreover, as per Section 26 of the UA(P)A, the

Court can order forfeiture of proceeds of terrorism. Moreover, only in connection

with proceeds of terrorism, show-cause notice can be issued under Section 27

of the UA(P)A.

63) As already indicated above, the Ministry of Agriculture and the

Ministry of Food Processing, Govt. of India had funded as sum of Rs.28.00 lakh

and Rs.56.00 lakh respectively as already mentioned earlier and it is not the

case of the prosecution that UNLF, a terrorist organisation had routed the

proceeds of terrorism to AEGIS through the Govt. of India. It is also not the

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case of the prosecution that it was the proceeds of terrorism of UNLF that was

availed as loan by AEGIS through the IUCB. Therefore, it was the incumbent on

the prosecution to identify which part of the properties and assets of AEGIS is

based on proceeds of terrorism. In this regard, the prosecution had failed

miserably.

64) In this case, the memorandum of attachment and the order of

attachment were made on 11.11.2011. The order confirming the attachment

was made on 29.11.2011. For the reasons and discussions made hereinbefore,

the said two orders dated 11.11.2011 and 29.12.2011, which are impugned

herein are held to be not sustainable on facts and in law.

65) Resultantly, the said two orders dated 11.11.2011 and

29.12.2011, which are impugned in this appeal are not found sustainable and

accordingly, the Court is inclined to allow this appeal by setting aside the

Memorandum of Attachment dated 11.11.2011 prepared by Shri Swayam

Prakash Pani, IPS, SP, Chief Investigating Officer of NIA Case No. 10/2010

(Ext.94 in Spl. NIA Case No.1/2010); order of attachment dated 11.11.2011

made by Shri Swayam Prakash Pani, IPS, SP, Chief Investigating Officer of NIA

Case No. 10/2010 (Ext.95 in Spl. NIA Case No.1/2010); and the impugned order

under No. 11034/20/2010-IS-VII(IV) dated 29.12.2011, issued by Dharmendra

Sharma, Joint Secretary (IS-I), MHA & Designated Authority (Ext.184 in Spl. NIA

Case No.1/2010).

66) Resultantly, it is ordered that the properties of AEGIS, which has

been attached and confirmed as mentioned hereinbefore are restored back to

the persons from whom they were seized, which shall be done after preparing a

detailed inventory.

Order downloaded on 24-12-2024 05:27:56 PMPage No.# 25/25

67) This appeal stands allowed.

68) The parties are left to bear their own cost.

JUDGE JUDGE.

Comparing Assistant