REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 415-417 OF 2019

KEKHRIESATUO TEP ETC. ...APPELLANT(S)

VERSUS

NATIONAL INVESTIGATION AGENCY …RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 418 OF 2019

J U D G M E N T

B.R. GAVAI, J.

1.The Criminal Appeal Nos.415-417 of 2019 and Criminal

Appeal Nos.418 of 2019 challenge the judgments and orders

dated 8

th

May 2018 and 3

rd

September 2018 respectively,

passed by the learned Division Bench of the Gauhati High

Court, vide which the bail granted to the appellants herein

came to be cancelled.

2.The appellants, in Criminal Appeal Nos.415-417 of

2019, came to be arrested on 13

th

October 2017, whereas the

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appellant, in Criminal Appeal Nos.418 of 2019, came to be

arrested on 25

th

March 2018.

3.The appellants in Criminal Appeal Nos.415-417 of 2019

and Criminal Appeal Nos.418 of 2019, moved the learned

Special Court, National Investigating Agency, Nagaland,

Deemapur (hereinafter referred to as ‘the NIA’), for grant of

bail. Vide orders dated 17

th

October 2017 and 28

th

March

2018 respectively, the said applications came to be allowed.

4.Being aggrieved thereby, the NIA filed appeals before the

Guwahati High Court. The Division Bench, vide the

impugned orders, allowed the appeals and reversed the

orders dated 17

th

October 2017 and 28

th

March 2018.

5.While issuing notice, vide orders dated 28

th

May 2018

and 20

th

September 2018, this Court also stayed the

judgments and orders passed by the Division Bench of the

Guwahati High Court.

6.We have heard Shri R. Basant, learned Senior Counsel

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for the appellants and Smt. V. Mohana, learned Senior

Counsel appearing for the respondent/NIA.

7.Shri Basant submits that the learned Special Judge,

after finding that the act of the appellants of succumbing to

the demands of the organization was not voluntary and that

the investigating agency itself had admitted that the accused

persons were voluntarily cooperating with the investigation,

had granted bail. He submits that, in these circumstances,

it was not appropriate on the part of the High Court to have

interfered with the orders of the learned Special Judge and

deprived the appellants herein of their liberty. He further

submits that this Court in the case of Thwaha Fasal v.

Union of India

1

, has held that even at the stage of grant of

bail, the prosecution has to prima facie establish that there

was mens rea for committing the crime punishable under

Sections 39 and 40 of the Unlawful Activities (Prevention)

Act, 1967 (hereinafter referred to the “said Act”). He further

submitted that even though the appellants were arrested and

subsequently released, their services are not suspended and

1 2021 SCC OnLine SC 1000

3

they are still continuing in their respective jobs.

8.Smt. V. Mohana submits that the learned Division

Bench of the High Court has rightly reversed the orders of

grant of bail. She submits that the appellants themselves

have admitted that they have paid the money to the

organization. She further submits that, from the documents

which were submitted with the supplementary charge-sheet,

it is clear that the receipts are signed in the hand writings of

the appellants. She, therefore, submits that there is a prima

facie material to connect the present appellants with the

crime in question.

9.Smt. Mohana further relies on the provisions of sub-

section (5) of Section 43D of the said Act to buttress the

submission that since the prima facie case is made out, the

appellants were not entitled to bail and as such, the High

Court has rightly reversed the orders.

10.It will be relevant to refer to the following observation of

the learned Special Judge, while granting them bail:-

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“I have considered this peculiar position

which has a marked difference between the

extortionist and the tax payers who are under

constraint. It is also in all correctness by the

learned Special PP, NIA to argue that the

petitioners should take recourse to protection

of the law enforcing agencies. However, in my

considered view the position of the accused

who are compelled to pay tax are precarious

and there is no doubt that the law enforcing

agencies may not always be there for their

protection and penalty for violation which

always looms is eminent. Under this given

facts we are drawn to the cardinal principle of

criminal jurisprudence which postulates that

there can be no crime when there is no mens

rea. It is apparent to see that the accused

persons have undoubtedly committed offence

but it is an offence which is prompted by

element of threat. We are drawn to the

Criminal Appeal No. 4 (K) of 2017 NIA vs. Victo

Swu which is relied upon by the Special PP,

NIA where the submission of the learned PP

NIA is recorded as “Thereafter the IA. PP NIA

submitted that this document as a piece of

evidence which would prove that the

respondent/accused was regularly extorting

money for NSCN(K) from Govt. officers and

other individuals” this is explicitly clear that

the present accused are victims of the

extortionists, such as Victo Swu and there is

the imperative duty cast upon the court to

differentiate between this two individuals –

those who commit extortion on their own

volition and those who are compelled to pay

tax by compulsion, this will serve the ends of

justice. The mental exercise which is cast

upon the special Judge to examine whether

there is a prima facie true case in the instant

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case thus falls short of the requirement to tie

the hands of the Court to consider bail in such

cases. The prosecution has not been able to

show that indeed the accused have been

voluntarily contributing to the funding of the

outlawed outfits to execute their nefarious

activities. There is also noting emanating from

the C.D. brought for the perusal of the court

that the accused persons are sympathizers of

the extortionist or U.G. factions, nor is there

any evidence to show that the accused persons

are active members of the outlawed

organizations. There must be a line drawn

which differentiate the likes of accused Victo

Swu and the present accused persons. In the

present facts the balance is more inclined to

show that the accused are victims of

circumstances and to hold them on equal

footing with the terrorist would be grave

injustice. Unless it can be shown that the

accused are actually sympathizers of the

outlawed outfits and they are depriving fund

on their own volition to sustain the outlawed

organisations it would be prejudiced to

conclude that there is a prima facie true

evidence. The fact that the accused/petitioners

have not taken security and have not reported

the matter to the authority cannot equate

them as terrorists.

Hence, I derive at the conclusion that

there is no prima fade true evidences against

the accused persons to show that they are

sympathizers and they have been voluntarily

contributing to the outlawed organizations. I

rule that the investigation agency have also no

hindrances at all in securing any information

from the accused persons as the NIA have

admitted that the accused persons and

voluntarily cooperating with the investigation

by surrendering all relevant documents which

wee needed by the investigation. The accused

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persons also being Govt. servants and having

deep root in the society there is no chance for

them to jump bail.”

11.A perusal of the aforesaid would clearly reveal that

even, according to the prosecution case, accused Nos.1 to 3,

who were office bearers of the organization were regularly

extorting money from various government servants and other

individuals. The learned Special Judge has rightly observed

that the Court has to differentiate between those who commit

extortion on their own volition and those who are coerced to

pay by compulsion. The Court has found that the

prosecution has not been able to show that the accused have

been voluntarily contributing to the funding of the outlawed

outfits to execute their nefarious activities. The Special

Judge also found that there was no material placed on record

to show that the appellants were sympathizers of the

extortionists or U.G. factions. The Court further found that

the investigating agency itself had admitted that the accused

persons were voluntarily cooperating with the investigation.

12.The learned Judges of the Division Bench found that

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the learned Special Judge having itself recorded that the

accused-appellants had committed the offence, albeit

prompted by an element of threat having regard to the

provisions under Section 43D (5) of the said Act, the prayer

for bail could not have been acceded.

13.The provisions of Section 43D (5) of the said Act have

been considered by this Court in the case of Thwaha Fasal

(supra). The Court, after reproducing the provisions of

Section 43D (5) and after considering the judgment of this

Court in the cases of National Investigation Agency v.

Zahoor Ahmad Shah Watali

2

and Ranjitsing

Brahhmajeetsing Sharma v. State of Maharashtra and

Another

3

, held that while deciding a bail petition filed by the

accused against whom offences under Chapter IV and VI of

the said Act 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. It will be

worthwhile to note that this Court, in the case of Zahoor

Ahmad Shah Watali (supra), has distinguished the words

2 (2019) 5 SCC 1

3 (2005) 5 SCC 294

8

‘not guilty’ as used in TADA, MCOCA and NDPS Act as

against the words ‘prima facie’ in the present Act. The Court

has held that a degree of satisfaction required in a case of

‘not guilty’ is much stronger than the satisfaction required in

a case where the words used are ‘prima facie.’

14.The additional requirement, as provided under sub-

section (5) of Section 43D of the said Act is twin. The first

one being that the public prosecutor has to be given an

opportunity of being heard. The second one, that the Court

is of the opinion that there are reasonable grounds for

believing that the accusation against such a person is prima

facie true.

15.Undisputedly, in the present case, the first requirement

has been complied with. Insofar as the second requirement

with regard to Court arriving at a satisfaction that the

accusation against such persons is prima facie true is

concerned, we would not like to go into the elaborate

discussion of the evidence, inasmuch as that may hamper

the rights of the parties at the stage of trial.

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16.It would further reveal that not only the charge-sheet

but supplementary charge-sheet has been filed. The Forensic

Science Laboratory (for short, “FSL”) report show that the

receipts are in the hand writing of the appellants. Be that as

it may, it is not even the case of the appellants that they did

not make the payment. It is their contention that they were

forced to make the payment. As such, their custodial

interrogation is not warranted.

17.However, it may be noted that a perusal of Sections 39

and 40 of the said Act, as have been interpreted by this

Court, would show that a prima facie satisfaction has to be

arrived that the acts which are committed by the accused

have been committed with intention to further the activity of

a terrorist organization.

18.A perusal of Sections 39 and 40 of the said Act would

itself reveal, that for an act to constitute as an offence within

the meaning of that Section, it has to be done with the

intention of furthering the activities. This Court, in the case

10

of Thwaha Fasal (supra), while considering the provisions of

Section 39 of the said Act, has also taken a similar view.

19.The learned Special Judge has himself distinguished

cases of the persons who have indulged into extortion for

furthering the activities of the organization and the persons

like the present appellants, who were government servants,

and compelled to contribute the amount. We, therefore, find

that it cannot be said that the prima facie opinion, as

expressed by the learned Special Judge, could be said to be

perverse or impossible.

20.An interference by an Appellate Court and particularly

in a matter when liberty granted to a citizen was being taken

away would be warranted only in the event the view taken by

the Trial Court was either perverse or impossible. On this

limited ground, we find that the appeals deserve to be

allowed.

21.Therefore, the impugned orders are quashed and set

aside and the appeals are allowed.

11

22.However, it is made clear that any observation made

hereinabove shall not be construed an expression on the

merits of the matter.

23.Pending application(s), if any, shall stand disposed of.

..............................J.

[B.R. GAVAI]

..............................J.

[SANJAY KAROL]

NEW DELHI;

APRIL 12, 2023

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