Cr. Appeal (D.B.) No. 175 of 2022

[Against the order dated 26.02.2022 passed by the learned AJC-XVI-cum-

Spl. Judge, NIA, Ranchi in Misc. Criminal Application No. 109/2022, corre-

sponding to Special (NIA) Case No. 03 of 2018 (R.C. Case No.

06/2018/NIA/DLI), arising out of Tandwa P.S. Case No. 02 of 2016]

………..

Mahesh Agarwal, S/o Late Mahadeo Prasad Agarwal, R/o BA 209,

Salt Lake, P.O. & P.S. Bidhannagar (North), Kolkata-700064, West

Bengal ... … Appellant

Versus

Union of India through National Investigation Agency, N.I.A. Camp

Office, Qr. No. 305, Sector-II, P.O. & P.S.-Dhurwa, Ranchi

... … Respondent

………..

For the Appellant :Dr. Abhishek Manu Singhvi, Sr. Advocate

Mr. Vikash Pahwa, Sr. Advocate

Mr. Indrajit Sinha, Advocate

Mr. Nitesh Rana, Advocate

For the N.I.A. :Mr. Vikramjit Banerjee, ASGI

Mr. Amit Kr. Das, Advocate

P R E S E N T

HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY

HON’BLE MR. JUSTICE RAJESH KUMAR

………..

C.A.V. on 25/03/2022 Pronounced on 11/04/2022

Per. R. Mukhopadhyay. J.:

Heard Dr. Abhishek Manu Singhvi and Mr. Vikash

Pahwa, learned Senior Counsels appearing for the appellant and

Mr. Vikramjit Banerjee, learned ASGI for the National Investigation

Agency.

2. Aggrieved by the order dated 26.02.2022 passed by

the learned AJC-XVI-cum-Spl. Judge, NIA, Ranchi in Misc.

Criminal Application No. 109/2022, corresponding to Special (NIA)

Case No. 03 of 2018 (R.C. Case No. 06/2018/NIA/DLI), arising out

of Tandwa P.S. Case No. 02 of 2016, by which the prayer for bail of

the appellant was rejected, the appellant has preferred the present

appeal.

3. A written report was submitted by Ramdhari Singh,

Sub Inspector of Police, posted at Simaria P.S. to the effect that on

10.01.2016 a secret information was received by the

Superintendent of Police that in Amrapali Magadh Coal area in

Tandwa some local people have formed an association which is

related to the banned extremist outfit TPC. The members of such

association were extracting levy from coal traders and DO holders

by creating fear in the name of the extremists of TPC, namely

-2- Cr. Appeal (D.B.) No. 175 of 2022

Gopal Singh Bhokta @ Brijesh Ganjhu, Mukesh Ganjhu, Kohram Ji,

Akraman Ji @ Ravindra Ganjhu, Anischay Ganjhu, Bhikan Ganjhu,

Deepu Singh @ Bhikan and Bindu Ghanju. It was also alleged that if

any businessmen hesitates to pay levy, they are threatened by

members of such organization and are also subjected to hardships. In

order to verify the truthfulness or otherwise of such information a

raiding party was constituted on the orders of Superintendent of

Police, Chatra. A raid was conducted in the house of the President of

the association Binod Kumar Ganjhu and from under his bed as well

as from an almirah Rs. 91,75,890/- was recovered. No satisfactory

explanation could be submitted by Binod Kumar Ganjhu with respect

to the recovery of such a huge amount of cash. From the house of

Binod Kumar Ganjhu two persons were also apprehended who

disclosed their names as Birbal Ganjhu and Munesh Ganjhu and on

search of their persons a loaded Mauser pistol was recovered from the

possession of Birbal Ganjhu while from the possession of Munesh

Ganjhu a country made pistol and two live cartridges were recovered.

Both had confessed of being associated with TPC organization. Binod

Ganjhu had disclosed that he is the President of “Magadh Sanchalan

Samittee” and the levy collected is sent to Gopal Singh Bhogta @

Brijesh Ganjhu and thereafter it is distributed between Mukesh

Ganjhu, Kohramji, Akramanji @ Ravindra Ganjhu, Anischyaji,

Bhikan Ganjhu and Deepu Singh @ Bhikan. He had further disclosed

that Bindu Ganjhu is a member of “Amrapali Sanchalan Samittee”

who collects levy on behalf of TPC and since he is at present in Jail

the collection of levy is being done by Pradeep Ram. On such

information a raid was conducted in the house of Pradeep Ram and

from under his bed as well as from an almirah Rs. 57,57,710/- in

cash was recovered. No satisfactory explanation could be given by

Pradeep Ram with respect to the cash recovered.

4. Based on the aforesaid allegations Tandwa P.S. Case

No. 02 of 2016 was instituted for the offences under Sections 414,

384, 386, 387, 120B of the I.P.C., Section 25(1-b)(a), 26/35 of the

Arms Act and Section 17 (1)(2) of Criminal Law Amendment Act

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against Binod Kumar Ganjhu, Munesh Ganjhu, Pradeep Ram, Birbal

Ganjhu, Gopal Singh Bhokta @ Brijesh Ganjhu, Mukesh Ganjhu,

Kohramji, Akramanji @ Ravindra Ganjhu, Anischya Ganjhu, Deepu

Singh @ Bhikan, Bindu Ganjhu @ Bindeshwar Ganjhu and Bhikan

Ganjhu.

On 10.03.2016 charge sheet was submitted against the

other accused persons before the learned Chief Judicial Magistrate,

Chatra. On 09.04.2017 on the prayer made by the Investigating

Officer offences under Sections 16, 17, 20 and 23 of the Unlawful

Activities (Prevention) Act, 1967 (herein after referred to as the UAP

Act for the sake of brevity) were added. Since the offences involved a

scheduled offence, in exercise of powers conferred u/s 6(3) read with

Section 8 of the National Investigation Agency, Act 2008, the Central

Government vide order dated 13.02.2018 had directed the National

Investigation Agency to take up the investigation of the case

consequent to which Tandwa P.S. Case No. 02 of 2016 was re-

registered as NIA Case No. RC-06/2018/NIA/DLI.

The first supplementary charge sheet bearing Charge

Sheet No. 32/2018 was filed by the NIA on 21.12.2018.

5. The appellant was issued notice by the NIA, Ranchi on

17.01.2019, 18.01.2019 and 22.01.2019 wherein he was directed to

appear before the NIA, Ranchi which was complied with and the

statement of the appellant u/s 161 Cr.P.C. was recorded. Pursuant to

an application preferred by NIA before the learned Special Judge, NIA,

Ranchi the statement u/s 164 Cr.P.C. of the appellant was recorded.

On 07.01.2020 the appellant was issued a notice u/s 41-A of the

Cr.P.C. directing him to appear before the NIA on 10.01.2020.

According to the appellant, on account of his mother's sudden illness

he could not appear on the appointed day for which an intimation

was sent to the Agency on 10.01.2020. However, after conducting

further investigation a second supplementary charge sheet was

submitted by the NIA in which the appellant was arrayed as an

accused for committing offences punishable under Section 120B of

the IPC read with Section 17 of the UAP Act, 1967 and substantive

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offences under Sections 17 and 18 of the UAP Act, 1967, Section 17

of the CLA Act, 1908 and Section 201 of the IPC.

6. In the memo of appeal, the credentials of the appellant

has been sought to be highlighted to the effect that he is accredited

for setting up the first Sponge Iron Plant and Rolling Mill of the

Adhunik Group of Companies at Durgapur in the year 2001. The

appellant is the Managing Director of Adhunik Power and Natural

Resources Limited which is a company incorporated under the

Companies Act, 1956. The Adhunik Power and Natural Resources

Limited had executed a memorandum of understanding dated

31.10.2005 for setting up of 1080 M.W. coal based Thermal Power

Plant in two phases: the first phase was commissioned and is already

in operation since 21.01.2013 while the second unit was

commissioned on 19.05.2013. The regional office of the Company is

in Jharkhand while its headquarter is situated at Kolkata, West

Bengal.

7. Canvassing the arguments on behalf of the appellant

Dr. Abhishek Manu Singhvi, learned Senior Counsel for the appellant

has submitted that the appellant is the Managing Director of Adhunik

Power and Natural Resources Limited who is based at Kolkata and is

not operational in Jharkhand and he himself is a victim of extortion

threats which has been misconstrued by the NIA by accusing the

appellant of being involved in terror funding. Dr. Singhvi has drawn

the attention of the Court to the sequential events of the case which

commenced with the institution of the First Information Report on

11.01.2016 and culminated with the arrest of the appellant on

18.01.2022. He has submitted that the appellant was not named in

the First Information Report lodged by the Police nor in the charge

sheet submitted on 10.03.2016. On 12.04.2017 the provisions of the

UAP Act was inserted and the name of the appellant still did not

figure and even in the first supplementary charge sheet submitted by

NIA the name of the appellant was conspicuous by its absence. In

January, 2019 the 161 Cr.P.C. statement of the appellant was

recorded by the Agency and subsequently in April, 2019 his

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statement u/s 164 Cr.P.C. was also recorded. The sanction for

prosecution was accorded by the appropriate government on

27.12.2019. On 07.01.2020 the appellant was issued notice u/s 41-A

of the Cr.P.C. According to Dr. Singhvi, the aforesaid facts would

emphasize the initial status of the appellant as a witness though

subsequently the Agency did a volte face and named him as an

accused in the second supplementary charge sheet.

Learned Senior Counsel has referred to Section 17 of

the UAP Act and has made particular stress on the words “raises”,

“provides” and “collects” as appearing in the said provision while

juxtaposing the same with the word “knowing” by submitting that the

evidence collected by the Investigating Agency does not indicate that

the appellant had knowledge or awareness that the money was being

used by a terrorist organization or a terrorist gang to fuel terrorism.

The only knowledge the appellant had was that money was being paid

to the transporters. The appellant therefore cannot be fastened with

the allegations of being involved in terror funding.

Dr. Singhvi, learned Senior Counsel has punctuated his

submissions by referring to the allegations against co-accused

Sudesh Kedia and the order granting him bail by the Hon'ble

Supreme Court in the case reported in (2021) 4 SCC 704. The role of

Sudesh Kedia (A-19) has been depicted in para 17.11 of the second

supplementary charge sheet and while taking us through the

allegations levelled against Sudesh Kedia, Dr. Singhvi has submitted

that he was accused of attending meetings with TPC leaders and

paying levy to TPC leader Akramanji, CCL employees and village

committee members through his current account. An amount of

Rs. 9,95,000/- was also seized from the residential premises of

Sudesh Kedia. It has been contended that money was admittedly paid

from the company account and so far as Sudesh Kedia is concerned,

he was the transporter who had received the money and had

transferred it to the organization. Dr. Singhvi while referring to

“Sudesh Kedia versus Union Of India” (supra) has emphasized that

neither the appellant had participated in meetings nor had he

-6- Cr. Appeal (D.B.) No. 175 of 2022

hobnobbed with the members of the terrorist organization or for that

matter attended any programmes. The role of the appellant who has

been arrayed as A-18 in the second supplementary charge sheet has

been restricted to the purported knowledge the appellant had that the

levy is being paid by the company. The findings recorded in the case

of Sudesh Kedia (supra) clearly reveals that money was being paid to

the members of TPC for smooth running of the business and

therefore prima facie it cannot be said that Sudesh Kedia had

conspired with the other members of TPC and raised funds to

promote the organization. In support of his contentions, learned

Senior Counsel has referred to paragraphs 13, 13.1, 13.2, 13.3 and

14 of the said case.

Dr. Singhvi has referred to the case of “People's Union

for Civil Liberties & Anr. versus Union of India & Ors.” reported in

(2004) 9 SCC 580, while submitting that mens rea is an essential

component for an offence and an act can be said to be an offence if it

is committed with an intent. The said case along with batch cases

was for consideration of the constitutional validity of various

provisions of Prevention of Terrorists Act, 2002. If there is no

intention or design to further the activities of any terrorist

organization no offence is committed. Drawing inspiration from the

said finding Dr. Singhvi has submitted that no adverse inference can

be drawn against the appellant if the entire gamut of allegations are

taken into consideration. The frequently used phrase “smooth

running of the business” as appearing in the charge sheets submitted

by the NIA according to Dr. Singhvi will enable the Court to draw an

inference favorable to the case of the appellant.

The next submission advanced by Dr. Singhvi is that for

almost six years neither the Police nor the NIA had even whispered

about the involvement of the appellant. He has submitted that the

presumption of innocence shall always prevail so far as the appellant

is concerned. He has pointedly referred to para 23 in the case of “P.

Chidambaram versus Directorate of Enforcement” reported in (2020)

13 SCC 791, which reads as follows:

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“23. Thus, from cumulative perusal of the judgments

cited on either side including the one rendered by the

Constitution Bench of this Court, it could be deduced that

the basic jurisprudence relating to bail remains the same

inasmuch as the grant of bail is the rule and refusal is

the exception so as to ensure that the accused has the

opportunity of securing fair trial. However, while

considering the same the gravity of the offence is an

aspect which is required to be kept in view by the Court.

The gravity for the said purpose will have to be gathered

from the facts and circumstances arising in each case.

Keeping in view the consequences that would befall on

the society in cases of financial irregularities, it has been

held that even economic offences would fall under the

category of “grave offence” and in such circumstance

while considering the application for bail in such matters,

the Court will have to deal with the same, being sensitive

to the nature of allegation made against the accused.

One of the circumstances to consider the gravity of the

offence is also the term of sentence that is prescribed for

the offence the accused is alleged to have committed.

Such consideration with regard to the gravity of offence

is a factor which is in addition to the triple test or the

tripod test that would be normally applied. In that regard

what is also to be kept in perspective is that even if the

allegation is one of grave economic offence, it is not a rule

that bail should be denied in every case since there is no

such bar created in the relevant enactment passed by

the legislature nor does the bail jurisprudence provide so.

Therefore, the underlining conclusion is that irrespective

of the nature and gravity of charge, the precedent of

another case alone will not be the basis for either grant

or refusal of bail though it may have a bearing on

principle. But ultimately the consideration will have to be

on case-to-case basis on the facts involved therein and

securing the presence of the accused to stand trial.”

Reference has also been made to the counter affidavit

filed on behalf of NIA and it has been argued that since Sudesh Kedia

has been granted bail the counter affidavit is a feeble attempt in

adversely developing the case of the appellant in order to make a

distinction though it is a irrefutable fact that the case of the appellant

stands on a much better footing than that of Sudesh Kedia.

The investigation into the case has been completed and

after cognizance has been taken charge has also been framed on

23.08.2019 and 03.12.2021. Once charge has been framed the same

symbolizes commencement of trial and therefore there cannot be any

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further investigation. To buttress the aforesaid submission reliance

has been placed in the case of “Vinubhai Haribhai Malaviya & Ors.

versus The State of Gujarat & Anr.”, reported in (2019) 17 SCC 1 and

the paragraph relevant in support of such submission is quoted

herein under:

“20. With the introduction of Section 173(8) in CrPC, the

police department has been armed with the power to

further investigate an offence even after a police report

has been forwarded to the Magistrate. Quite obviously,

this power continues until the trial can be said to

commence in a criminal case. The vexed question before

us is as to whether the Magistrate can order further

investigation after a police report has been forwarded to

him under Section 173?”

Dr. Singhvi has pointed out that though the money has

been funded through the company's account but the company has

not been made an accused and in absence of the company having

been made an accused no vicarious liability can be fastened upon the

appellant.

The charge sheet contains 185 witnesses, 131

documents and 66 material exhibits and therefore it can be presumed

that it will take ages to conclude the trial while the appellant

continues to languish in custody since 18.01.2022 and considering

the entire scenario, according to Dr. Singhvi, the appellant deserves

the privilege of bail.

8. Mr. Vikash Pahwa, learned Senior Counsel also

appearing on behalf of the appellant has augmented the submissions

canvassed by Dr. Singhvi by referring to the allegations in para 17.20

in the second supplementary charge sheet against Sanjay Jain (A-9)

who was working as a General Manager in M/s Adhunik Power and

Natural Resources Limited, Kandra, Saraikela-Kharsawan,

Jharkhand. Mr. Pahwa has submitted that Sanjay Jain was working

at the ground level and was collecting Rs. 200 Per Metric Ton from

the transporters for the purpose of paying to TPC operatives while the

appellant was sitting at Kolkata and except some e-mails which were

marked 'CC' to him there is nothing to indicate that the appellant was

aware about the modus operandi adopted for collection of levy. Such

-9- Cr. Appeal (D.B.) No. 175 of 2022

e-mails also cannot lead to drawing an adverse inference against the

appellant. In fact when Sanjay Jain was arrayed as an accused the

status of the appellant was that of a witness though subsequently a

u-turn was made by the Agency and the appellant was arrayed as an

accused in the second supplementary charge sheet. Mr. Pahwa has

further submitted that Sanjay Jain has been granted bail by a co-

ordinate Bench of this Court in Cr. Appeal (D.B.) No. 222 of 2019.

The principles of parity demand that the appellant in such

background facts be also granted bail and in support of which the

order passed in “Kamaljit Singh versus State of Punjab & Anr. ”

reported in (2005) 7 SCC 226 has been relied upon by Mr. Pahwa.

9. Mr. Vikramjit Banerjee, learned ASGI appearing on

behalf of NIA has read from para 17.10 of the second supplementary

charge sheet which specifies the role enacted by the appellant. On his

direction the payment was made through RTGS to coal transporters

against work orders. This was the official part. The other part is the

deliberate act of the appellant in deleting the e-mails marked 'CC' to

him. Mr. Banerjee has referred to the list of documents including the

e-mail marked as D-168 which refers to an e-mail sent by Sanjay

Jain to the appellant for release of Rs. 25,00,000/- on account of

pending freight of M/s National Parivahan as per the discussions

with the appellant and “Neta Jee” which clearly depicts the nexus

existing between the appellant and the operatives of TPC. According

to Mr. Banerjee all the e-mails were on official e-mail account of the

company which demolishes the contention of the appellant that the

deal was clandestine and the entire transaction was not to the

knowledge of the appellant. These e-mails were sought to be deleted

which also enhances the awareness of the appellant as to the goings

on at the ground level.

Learned ASGI has drawn the attention of the Court to

the judgment delivered in the case of “Sudesh Kedia” on 09.04.2021

which was much prior to the statement of Sudhanshu Ranjan @

Chhotu which was recorded on 28.09.2021 and which reveals the

nexus between the appellant and the terrorist organization TPC. The

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finding recorded in the case of Sudesh Kedia (supra) at para 13.1

cannot accentuate the case of the appellant in view of the statement

of the approver Sudhanshu Ranjan @ Chhotu.

10. Dr. Abhishek Manu Singhvi, learned Senior Counsel for

the appellant in reply has reiterated his initial stance. He has

submitted that the charge is substantially of terror funding and being

the Managing Director it is absolutely improbable for the appellant to

be involved in terror funding and such charge should be looked at

with scepticism. Once again attention of the Court has been drawn to

the case of “Sudesh Kedia” wherein according to the learned Senior

Counsel the same transaction was involved. Sudesh Kedia operated

at the ground level while the appellant remained stationed at Kolkata

in the headquarter of the company. The bail was granted to Sudesh

Kedia despite the bar created in Section 43-D(5) of the UAP Act. Dr.

Singhvi has countered the submissions advanced by the learned

ASGI while submitting that none of the contentions raised by the

appellant have been suitably replied to. Mere reading of the pre

judicial statement of Sudhanshu Ranjan @ Chhotu would not change

the basic structure of allegations against the appellant which appears

to be outlandish and bizarre. He has submitted that converting the

status of the appellant from a victim to being a prima donna and

alleging him of planning and executing terror funding is

unsustainable in criminal law. Learned Senior Counsel has added

that there has been no forensic evidence that the e-mails which were

marked 'CC' to him were willfully deleted. Reference has been made to

the statement of the protected witnesses “D”, “E” and “G” wherein

none of the said witnesses had taken the name of the appellants. So

far as protected witness “B” is concerned, his disclosure statement

merely suggests that he had approached the appellant for clearing his

dues who in turn had asked him to contact Sanjay Jain. The contact

was made in Kolkata and according to the learned Senior Counsel the

same does not indicate about the appellant having knowledge about

the transaction taking place at the ground level.

Dr. Singhvi, has brought to the notice of the Court the

-11- Cr. Appeal (D.B.) No. 175 of 2022

statements given by Sudhanshu Ranjan @ Chhotu Singh. The first is

the disclosure statement given on 19.11.2018, the second is on

10.01.2020 on turning approver and lastly his deposition dated

27.09.2021. He has submitted in the context of such statements that

the same are uncorroborated and have been given in a haphazard

manner. The statement of the approver has to have a seal of

objectivity. In his disclosure statement Sudhanshu Ranjan @ Chhotu

Singh has not taken the name of the appellant. At one point he had

rather said that he had come to know through Bindu Ganjhu that by

the end of the year 2016 Sanjay Jain and Ajay Singh had started

paying levy to TPC regional commander Akraman Ji directly. In the

statement recorded u/s 306 Cr.P.C. he has given a new thrust to his

earlier disclosure statement and apart from various imputations

made against the appellant and others he has also disclosed about

coming to know on various occasions the meetings the appellant had

held with Akraman Ji which appears to be a worse form of hearsay

evidence. It has been submitted that at the initial stage the

allegations were portrayed to be of coercion and extortion but the

prosecuting agency in order to nail the appellant has tried to improve

its case by taking recourse to the approver statement of Sudhanshu

Ranjan @ Chhotu Singh. Whether, according to Dr. Singhvi, the

insinuation cast by Sudhanshu Ranjan @ Chhotu Singh in his

statement recorded u/s 306 Cr.P.C. regarding the appellant having

knowledge that the levy collected by TPC was being used for anti

national activities could be construed to mean terror funding, more

so when there is nothing to indicate about sharing of same ideology

and belief. It has been submitted that the statements of Sudhanshu

Ranjan @ Chhotu Singh had been considered in the case of “Sanjay

Jain” by a co-ordinate Bench of this Court while granting him bail.

11. Mr. Vikash Pahwa, learned Senior Counsel has taken

us through the counter affidavit filed by NIA and has submitted that

though it seeks to distinguish the case of the appellant from that of

Sudesh Kedia but there is no evidence on record that the role of the

appellant is more serious than that of Sudesh Kedia. Indicting the

-12- Cr. Appeal (D.B.) No. 175 of 2022

appellant of being the mastermind of the entire scheme is nothing but

a figment of imagination of the prosecuting agency. It has been

submitted that the averments made in the counter affidavit filed

before this Court was never brought to the notice of the learned

Special Judge, NIA, Ranchi.

12. Mr. Vikramjit Banerjee, learned ASGI for the National

Investigation Agency on being asked as to how the coal block has

been allotted has submitted that the same was through an open

auction. When the appellant had bid he was aware about the ground

realities as when a participant is bidding he does not bid blind. He

has submitted that the statement of Sudhanshu Ranjan @ Chhotu

Singh has to be read in its entirety and cannot be read in isolation

and only then the wider conspectus of the involvement of the

appellant can be understood. The official e-mail account of the

appellant was extensively used. It has been pointed out that the

appellant knew the consequences and therefore his role should be

considered in a larger spectrum involving the other stake holders.

Learned ASGI has also submitted that the appellant for the purpose

of facilitating his business had embroiled himself in terror funding.

While referring to the case of “Sanjay Jain” learned ASGI has

submitted that the observations made at para 50 of the said

judgment should not be considered on a wider canvass and should be

construed to be restricted only to “Sanjay Jain”. Mr. Banerjee has

extensively referred to the case of “NIA versus Zahoor Ahmad Shah

Watali”, reported in (2019) 5 SCC 1, while Mr. Pahwa has contended

such submission by referring to the case of “Union of India versus

K.A. Najeeb”, reported in (2021) 3 SCC 713.

13. We have considered the rival submissions and have also

perused the various affidavits as well as the voluminous compilations

submitted by them. The focal point of argument of the learned Senior

Counsels for the appellant seems to be the grant of bail to Sudesh

Kedia by the Hon'ble Supreme Court while making dexterous

submission that the allegations against the appellant are more

conducive for considering the grant of bail to the appellant. We

-13- Cr. Appeal (D.B.) No. 175 of 2022

would, therefore, initiate our findings by making reference to the

allegations made against Sudesh Kedia in the second supplementary

charge sheet submitted by the NIA at para 17.11, which is quoted

hereunder:

“17.11 Role and activities of / offences established

against Sudesh Kedia (A-19): Sudesh Kedia (A-19) is

the proprietor of M/s Essakay Concast & Minerals Pvt.

Ltd. and his transporting company was engaged for

transporting of coal on behalf of GVK Power and

Godavari Commodities. He used to attend meetings with

TPC leaders and had paid levy to TPC, CCL and village

committee for smooth running of business in Amrapali

and Magadh collieries. He used to pay Rs. 200/- @ tonne

levy to TPC leader Kkraman (A-14), CCL employees and

Village Committee members namely Amlesh Das, Arvind

Singh and Triveni Yadav. Sudesh Kedia used to send

money through his current account for making payment

to village Committee and CCL and cash to Akraman (A-

14), TPC. Therefore, it is established that A-19, colluded

with members of terrorist gang, TPC, and others and

abetted / promoted / thereby strengthened TPC in

criminal conspiracy with members of the terrorist gang

with an intent to raise funds for the above said terrorist

gang through co-accused Bindu Ganjhu (A-5), Subhan

Mian (A-7), Ajit Kumar (A-10), Prem Vikas @ Mantu Singh

(A-11) and Akraman (A-14) for smooth running of his

business. He possessed Proceeds of Terrorism in the

form of cash amounting to Rs. 9,95,000/- Indian

currency, was seized from his residential premises and

demonetized Indian currency to face value of

Rs. 86,000/- were seized form his office cum residential

premises. Thereby, it is established that A-19 criminally

conspired with A-5, A-7, A-10, A-11 and A-14 and

committed offences under section 12B of IPC r/w

sections 17 of the UA(P) Act 1967 and substantive

offences under Sections 17, 18 and 21 of the UA(P) Act

1967 & Section 17 of the CLA Act, 1908.”

14. The role enacted by the appellant is depicted at para

17.10 of the second supplementary charge sheet and which reads as

under:

“17.10 Role and activities of / offences established

against Mahesh Agarwal (A-18): Mahesh Agarwal (A-

18) is the Managing Director of M/S Adhunik Power and

Natural Resources, Jharkhand. Evidence establish that

on his direction, payment was made through RTGS mode

to coal transporters against work orders, Amount @ Rs.

200/- per MT was given to transporters for the purpose

-14- Cr. Appeal (D.B.) No. 175 of 2022

of paying to TPC operatives and village committee for

smooth functioning of the business concerns. For

promoting his coal trade business, he connived with the

co-accused persons namely Ajay Singh, Akraman and

Bindheswar Ganjhu, and thereby abetted in raising of

funds for the terrorist gang. The documentary and oral

evidences establish that the said accused was paying

levy to members of various groups like Village committee

members, CCL, weigh bridge operators. TPC members

such as Akraman (A-14), Bindu Ganjhu (A-5) and

Premvikas @ Mantu Singh (A-11) and was involved with

co-accused persons namely Sanjay Jain (A-9) and Ajay

Kumar @ Ajay Singh in the commission of instant crime

and conspiracy. The E-mail dated 03 April 2017 & 30

th

April 2017 recovered at the instance of charge sheeted

arrested accused Sanjay Jain (A-9) and the documents

produced by witness Rakesh Jain reveal that Mahesh

Agrawal (A-18) was in the knowledge of levy being paid

to CCL and village Committee. The four e-mails dated

01/05/2017, 2/05/2017, 16/05/2017, 21/05/2017,

which were produced by witness Rakesh Jain, which

were sent by employees of Adhunik Power & Natural

Resources Ltd. to Raja Patni, M/s National Parivahana

transporter for Adhunik Power stating that there is

pending payments which was supposed to be paid to the

Committee, regular phone calls being made by Akraman

@ Netaji (Regional commander, TPC) (A-14) to Ajay

Kumar (Branch office Ranchi) to pay pending freight

charges to transports, threatening calls by Akraman @

Netaji to stop lifting of coal, plans of Ajay Kumar (Branch

office Ranchi) to meet Akraman @ Neta Ji, demand draft

of Rs. 40 lakh raised in the favour of Amrapali loading

account committee, intimating that Sanjay Jain is

meeting AkramanJi @ Neta Ji (A-14). Therefore, Mahesh

Agarwal was in the knowledge that levy is being paid by

their company to TPC leaders and operatives, thus

colluded in terror financing of TPC. Further, Mahesh

Agarwal deliberately deleted the e-mails marked as CC

to him. It is established that Mahesh Agarwal (A-18),

colluded with members of Terrorist gang TPC, and others

and abetted / promoted / thereby strengthened TPC by

engaging in criminal conspiracy with members of the

terrorist gang with an intent to raise funds for the above

said terrorist gang through co-accused Akraman (A-14),

Sanjay Jain (A-9) and Ajay Kumar @ Ajay Singh (A-22)

for smooth running of his business. Thereby, accused

Mahesh Agarwal (A-18) committed offences under section

120B of IPC r/w sections 17 of the UA(P) Act 1967 and

substantive offences u/s Sections 17 and 18 of the UA(P)

Act 1967, section 17 of the CLA Act, 1908 and Section

201 of IPC.”

-15- Cr. Appeal (D.B.) No. 175 of 2022

15. The role of the present appellant based on the second

supplementary charge sheet can be summed up in the following

manner:

(i) On his direction payment was made through

RTGS to the coal transporters against work orders.

(ii)For promoting his business he connived with the

TPC operatives and thereby abetted in raising funds for

the terrorists gang.

(iii)The appellant was involved in paying levy to

members of various groups like village committee

members, CCL, weighbridge operators and TPC

members.

(iv)The appellant had conspired with co-accused

Sanjay Jain (A-9) and Ajay Kumar @ Ajay Singh in the

commission of the offence.

(v)Some e-mails reveal that the appellant was in the

knowledge of levy being paid to CCL and Village

Committee Members.

(vi)The appellant had deliberately deleted the e-mails

marked as 'CC' to him.

16. The role played by Sudesh Kedia as delineated by the

Investigating Agency is summed up in the following manner:

(i)He used to attend meetings with TPC leaders and

had paid levy to TPC, CCL and Village Committee

Members.

(ii)Sudesh Kedia used to send money through his

current account for making payment to the Village

Committees and CCL and cash to Akramanji (A-14).

(iii)The proceeds of terrorism in the form of cash of

Rs. 9,95,000/- was seized from his residential premises

and demonetized currency of Rs. 86,000/- was seized

from his office cum residential premises.

17. A comparison of the allegations made in the second

supplementary charge sheet against the appellant and Sudesh Kedia

-16- Cr. Appeal (D.B.) No. 175 of 2022

would reveal a startling feature as to the manner in which the TPC

operatives were dealt with. The appellant, it is said, was in the

knowledge, though, without any direct involvement of the levy being

paid to the TPC operatives while Sudesh Kedia seems to have been

burdened with the allegations of having a direct nexus with the TPC

operatives, Village Committee members and CCL at the ground level

by holding meetings and making payment of levy through his current

account.

The allegations against Sudesh Kedia, therefore, is

much graver than that of the appellant as would appear from the

second supplementary charge sheet.

18. The case of another of the co-accused namely Sanjay

Jain has also much been relied upon by the learned Senior Counsels

for the appellant who has been granted bail by a co-ordinate Bench of

this Court in Cr. Appeal (D.B.) No. 222 of 2019. The co-accused

Sudesh Kedia has also been granted bail by the Hon'ble Supreme

Court in a case reported in (2021) 4 SCC 704.

19. Before adverting to the orders referred to above, the

allegations against Sanjay Jain (A-9) which finds place in the first

supplementary charge sheet is being considered and which reads as

follows:

“17.20 Role and activities of / offences established

against Sanjay Jain (A-9): Therefore, as per the

averments made hereinabove / in the pre-paragraphs, it

is established that he was working as General Manager

in M/s Adhunik Power and Natural Resources, Kandra,

Saraikela Kharsawan, Jharkhand and after making

payment through RTGS mode to coal transporters

against work orders, he used to collect / receive back

cash @ Rs. 200/- per MT from the transporters for the

purpose of paying to TPC operatives including A-5, A-11

and A-14 for smooth functioning of the business concern

and he used to raise levy for TPC on the direction of A-

14. He was closely associated with the operatives of TPC

and thereby became member of the terrorist gang as he

was acting as conduit in between TPC and coal

transporters and Coal purchasers for facilitating TPC in

extortion of levy and abetted in raising of funds for the

terrorist gang. E-Mails were recovered at his instance

which establish that the said accused was paying levies

to various ends including Village committee members,

-17- Cr. Appeal (D.B.) No. 175 of 2022

CCL, weigh bridge, TPC and as such was deeply

involved / associated with co-accused persons in the

commission of instant crime and conspiracy. Therefore, it

is established that Sanjay Jain (A-9), colluded with

members of terrorist gang / unlawful association TPC,

proscribed by Government of Jharkhand and others and

abetted / solicited / assisted in the operations /

management of TPC in criminal conspiracy with

members of the terrorist gang including A-5, A-11 and A-

14 and with other accused transporters A-7 with intent

to aid the above said terrorist gang collected funds from

illegitimate sources through extortion from the contractors

/ coal trader / transporters and thereby conspired with

co-accused for terrorist act. Thereby accused Sanjay Jain

(A-9) committed offences under Sections 120B r/w 384,

414, 109 of the IPC, sections 17, 18 and 20 of the UA(P)

Act, section 17 of the CLA Act, 1908.”

20. The accused Sanjay Jain was the General Manager in

M/s Adhunik Power and Natural Resources Limited, Kandra,

Saraikela-Kharsawan, Jharkhand who seems to have assumed the

role of a conduit between TPC, Coal Transporters and Coal

purchasers. He was directly involved in making payment of levy to the

terrorist organization and the others connected with such

organization. It would thus appear that Sanjay Jain was also

operating at the ground level and was facilitating the payment of levy

to the various stake holders.

21. In Cr. Appeal (D.B.) No. 222 of 2019 ( Sanjay Jain

versus Union of India) it was held as follows:

“40. From the materials on record, it is difficult to hold

that the appellant conspired or advocated or abeted any

offence under UA(P) Act. Section 18 is attracted when the

act abeted, advocated, incited etc. is a terrorist act or

any act preparatory to the commission of a terrorist act.

May be TPC is engaged in terrorist activities, the acts of

the appellant in making payment of levy amount to TPC

and meeting with TPC supremo are not covered under

sections 17 and 18 of UA(P) Act.

22. Though Sudesh Kedia and Sanjay Jain have been

granted bail and the orders granting bail have been heavily relied

upon by the learned Senior Counsels for the appellant seeking parity

but such submission has been sought to be negated by the learned

ASGI while referring to the various statements made by Sudhanshu

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Ranjan @ Chhotu Singh who had subsequently turned approver.

However, prior to consideration of the evidence of Sudhanshu Ranjan

@ Chhotu Singh the statement of some of the protected witnesses are

being referred to more particularly to the nature of involvement of the

appellant and that of Sudesh Kedia and Sanjay Jain.

Protected Witness No. “D” has stated that on behalf of

Adhunik Power Limited at Gamharia near Tata Jamshedpur, Sanjay

Jain used to attend meetings conducted by Akramanji who worked on

behalf of Brajesh Ganjhu. The Hindalco Coal Trading Company work

is looked after by Sonu Agarwal but his staff Rajendra Saw used to

attend the meetings. Indraj Bhadauria of Godavari Commodities

Company of Kolkata gave his trading work to Vijay Dhanuka, Gopal

Complex, Ranchi and Sudesh Kedia near Mount Motors Ranchi. He

has also stated that in the month of February, 2016 the Truck

Association had called for an indefinite strike for increasing the fare

of trucks. A meeting was called by Akraman and it was attended by

Sanjay Jain amongst others. In February, 2017 another indefinite

strike was called due to increase in fuel prices. Due to interference of

Akraman the strike was called off. Another meeting was held in the

presence of DO holders Sanjay Jain, Sudesh Kedia and others and at

the intervention of the members of TPC all had agreed to a 10% hike

in fares. This witness however has not whispered about the

involvement of the appellant at any point of time.

Protected Witness No. “E” has also not taken the name

of the appellant though he has stated about a meeting held on

14.02.2017 which was attended by the representatives of the

transporters namely Sudesh Kedia, Sanjay Jain, Ajay Singh, and

Vijay Dhanuka.

The protected Witness No. “G” has stated about a

meeting attended by Sanjay Jain, Rajendra Saw and Govind

Khandelwal. He however has not taken the name of the appellant.

On perusal of the statement of protected Witness No.

“B”, it appears that he was involved in purchasing coal and selling it

in the open market as well as to Adhunik Alloy and Power Limited. In

-19- Cr. Appeal (D.B.) No. 175 of 2022

the year 2015-2016 he had approached the appellant for return of his

money and he was directed to contact Sanjay Jain. He has stated that

Sanjay Jain got him work for transporting of approximately one lac

ton of coal for about seven months. As per the verbal agreement with

Sanjay Jain Rs. 200/- used to be collected from him either by Sanjay

Jain or Ajay Singh, both representatives of M/s Adhunik Power and

Natural Resources Limited.

23. The first disclosure statement before turning approver

was given by Sudhanshu Ranjan @ Chhotu Singh on 19.11.2018. He

used to deal in transportation of coal. In this statement he has not

assigned any role to the appellant though he has stated that he came

to know by the end of 2016 through Binod Ganjhu that Sanjay Jain

and Ajay Singh of Adhunik Private Limited started paying levy to TPC

regional commander Akramanji directly. So far as Sudesh Kedia is

concerned, he has stated that the persons working for Sudesh Kedia

had directly approached TPC regional commander Akramanji to

apprise him so that he does not obstruct the mining in the area and

pay levy to him directly which was opposed by the Village Committee

members.

24. Sudhanshu Ranjan @ Chhotu Singh subsequently

turned approver and his statement was recorded u/s 306 Cr.P.C. on

10.01.2020. He has stated that he was lifting and transporting coal in

Amrapali Project and Rs. 254 Per Ton was being given to the

committee through the staffs of Vishnu Agarwal. In the meantime,

due to a drop in demand of coal his transportation work got stalled

and he initiated a dialogue with Adhunik Company where he came to

know that the entire work in the project is looked after by Sanjay Jain

and Ajay Singh. He had called up the appellant once or twice who

had advised him to take permission from “Neta Ji” and only after

permission is granted he will be given work. He had thereafter

approached the Manager of BKB Transport Company who had

advised him to intimate “Neta Ji” through the owner of BKB

Transport Company Vineet Ji and then only he can get some work.

He also came to know that the members of the committee used to do

-20- Cr. Appeal (D.B.) No. 175 of 2022

the work for Sudesh Kedia whose company “S Kedia” and “Sky

Minerals” were engaged in the project.

Sudhanshu Ranjan @ Chhotu Singh has further

disclosed that he had come to know that the appellant along with

Mahesh Verma had come to Lawalong and held a meeting with

Akramanji. When he started work after six months the price of coal

had increased and there was a demand by the companies that the

rate charged by the committee at Amrapali and Magadh should be

Rs. 200/- per ton at par with what is charged by the committee at

Piprawar consequent to which a meeting was held in which the

appellant had also participated and after talking with “Neta Ji” the

rate was whittled down to Rs. 200/- per metric ton. He has stated

about the appellant, Sudesh Kedia, Sanjay Jain, Vineet Agarwal,

Govind Khandelwal and Ajay Singh keeping the accounts of Magadh

Amrapali Committee and if necessary they used to remove the

obstacles by meeting with TPC operatives Mukesh Ji, Bhikan Ji,

Brajesh Ji, Akraman Ji, Kohram Jee, Anishchay Ji and Karampal Ji.

Sudhanshu Ranjan @ Chhotu Singh has also disclosed that the

owner of the various companies, Sonu Agarwal, Vishnu Agarwal,

Mahesh Agarwal (appellant), Sudesh Kedia, Vineet Agarwal along with

Govind Khandelwal, Sanjay Jain and Ajay Singh had full knowledge

that the levy which was extracted by the TPC was used to purchase

arms and those persons are involved in anti national activities.

The evidence of Sudhanshu Ranjan @ Chhotu Singh as

Witness No. 2 has been recorded on 28.09.2021 and he has basically

reiterated his 306 Cr.P.C. statement recorded on 10.01.2020.

25. The subsequent statement of Sudhanshu Ranjan @

Chhotu Singh has been highlighted by the learned ASGI to create a

differentia between the case of “Sudesh Kedia” and the present

appellant.

26. So far as “Sanjay Jain” is concerned, the order in Cr.

Appeal (D.B.) No. 222 of 2019 was delivered on 01.12.2021 and a

fleeting reference was made to the statement of the approver

Sudhanshu Ranjan @ Chhotu Singh in the following manner:

-21- Cr. Appeal (D.B.) No. 175 of 2022

“50. The prosecution intends to examine 185 witnesses

and it relies upon 131 documents as well as 66 material

exhibits to prove the charge against the accused persons.

We are informed that Sudhanshu Ranjan who was a

member of Village Committee, Tandwa turned approver

for the prosecution and his testimony has been recorded

in the Court, but, at the same time, it is stated that this

witness did not say anything incriminating against the

appellant. Presently, the evidence of the informant is

being recorded in the trial.”

27. The co-ordinate Bench has noted that the approver did

not say anything incriminating against the appellant Sanjay Jain.

28. The evidence of Sudhanshu Ranjan @ Chhotu Singh in

whatever capacity it may be does not criminate the appellant of terror

funding, though, without leaving any room for doubt, an attempt has

surely been made of the appellant being directly involved in collection

of levy and being aware about such funds being used by the TPC

operatives to carry out subversive activities. We have noted in short

the statements of Sudhanshu Ranjan @ Chhotu Singh and we find

that the name of Sudesh Kedia and Sanjay Jain prominently figures

in such statements though the name of the appellant appears to have

surfaced in the 306 Cr.P.C. statement and his subsequent evidence

as Witness No. 2.

29. Before proceeding further we may now embark to

consider the various provisions of the UAP Act in order to evaluate

the allegations levelled against the appellant.

Section 17 of the UA(P) Act reads as follows:

[17. Punishment for raising funds for terrorist act.

—Whoever, in India or in a foreign country, directly or

indirectly, raises or provides funds or collects funds,

whether from a legitimate or illegitimate source, from any

person or persons or attempts to provide to, or raises or

collects funds for any person or persons, knowing that

such funds are likely to be used, in full or in part by such

person or persons or by a terrorist organisation or by a

terrorist gang or by an individual terrorist to commit a

terrorist act, notwithstanding whether such funds were

actually used or not for commission of such act, shall be

punishable with imprisonment for a term which shall not

be less than five years but which may extend to

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

Explanation.—For the purpose of this section,—

-22- Cr. Appeal (D.B.) No. 175 of 2022

(a) participating, organising or directing in any of the

acts stated therein shall constitute an offence;

(b) raising funds shall include raising or collecting or

providing funds through production or smuggling or

circulation of high quality counterfeit Indian currency;

and

(c) raising or collecting or providing funds, in any

manner for the benefit of, or, to an individual terrorist,

terrorist gang or terrorist organisation for the purpose

not specifically covered under Section 15 shall also be

construed as an offence.]”

Section 17 mentions about “terrorists organization”

“terrorist gang” and “terrorist act”. A “terrorists organization” has

been defined in Section 2 (n) and it reads as “terrorist organization

means an organization listed in the schedule or an organization

operating under the same name as an organization so listed.”

Terrorists gang as per Section 2 (l) means “any association, other than

terrorist organization, whether systematic or otherwise, which is

concerned with, or, involved in, terrorists act.”

The definition of the term “terrorist act” finds place at

Section 15 of the Act and it reads as under:

[15. Terrorist act. [(1)] Whoever does any act with

intent to threaten or likely to threaten the unity, integrity,

security, [economic security] or sovereignty of India or

with intent to strike terror or likely to strike terror in the

people or any section of the people in India or in any

foreign country,-

(a) by using bombs, dynamite or other explosive

substances or inflammable substances or firearms or

other lethal weapons or poisonous or noxious gases or

other chemicals or by any other substances (whether

biological radioactive, nuclear or otherwise) of a

hazardous nature or by any other means of whatever

nature to cause or likely to cause—

(i) death of, or injuries to, any person or

persons; or

(ii)loss of, or damage to, or destruction of,

property; or

(iii)disruption of any supplies or services

essential to the life of the community in India or

in any foreign country; or

[(iii-a) damage to, the monetary stability of India

by way of production or smuggling or

circulation of high quality counterfeit Indian

paper currency, coin or of any other material;

or]

-23- Cr. Appeal (D.B.) No. 175 of 2022

(iv) damage or destruction of any property in

India or in a foreign country used or intended to

be used for the defence of India or in connection

with any other purposes of the Government of

India, any State Government or any of their

agencies; or

(b) overawes by means of criminal force or the show of

criminal force or attempts to do so or causes death of any

public functionary or attempts to cause death of any

public functionary; or

(c) detains, kidnaps or abducts any person and

threatens to kill or injure such person or does any other

act in order to compel the Government of India, any State

Government or the Government of a foreign country or [an

international or inter-governmental organisation or any

other person to do or abstain from doing any act; or]

commits a terrorist act.

[Explanation.--For the purpose of this sub-section,--

(a) “public functionary” means the constitutional

authorities or any other functionary notified in the

Official Gazette by the Central Government as public

functionary;

(b) “high quality counterfeit Indian currency” means

the counterfeit currency as may be declared after

examination by an authorised or notified forensic

authority that such currency imitates compromises with

the key security features as specified in the Third

Schedule.]

[(2) The terrorist act includes an act which constitutes an

offence within the scope of, and as defined in any of the

treaties specified in the Second Schedule.]

30. Section 17 is a penal provision aimed at a person who

raises or provides fund or collects fund or an attempt made in such

context with a knowledge that such funds are likely to be used in full

or in part by a terrorist organization or by a terrorist gang or by an

individual terrorist to commit a terrorist act. The tenor of the said

provision indicates a voluntary act by an individual in raising,

providing or collecting funds for facilitating an act of terrorism.

Section 15 (1)(a)(iii) envisages a terrorist act which can cause or

likely to cause disruption of any supplies or services essential to the

life of the community in India or in any foreign country and this

provision has also been relied upon by the NIA, the reason being the

disruption of supply of coal on account of the nefarious activities of

the TPC. In fact, on the contrary, if the allegations made by the

-24- Cr. Appeal (D.B.) No. 175 of 2022

Investigating Agency are considered, some of the individuals at work

at the ground level seems to have smoothened out the transportation

of coal though at the price of being a victim of extortion and with an

object for smooth running of the business.

Section 15 of the UAP Act also contemplates threat to

security which also includes economic security which has been

defined in Section 2(ea) and which also includes livelihood security

and a glance at the said provision would not define the role of the

appellant as an aggressor as the appellant was merely running his

business and was at the receiving end of the extortion threats of TPC.

31. Section 18 of the UAP Act reads as follows:

“18. Punishment for conspiracy, etc.- Whoever

conspires or attempts to commit, or advocates, abets,

advises or [incites, directs or knowingly facilitates] the

commission of, a terrorist act or any act preparatory to

the commission of a terrorist act, shall be punishable

with imprisonment for a term which shall not be less

than five years but which may extend to imprisonment

for life, and shall also be liable to fine.”

Section 18 of the Act, therefore, contemplates an act of

conspiracy or an attempt at or an abetment, advise or incitement,

direction or knowingly facilitating the commission of a terrorist act.

Section 107 of the IPC defines “Abetment of a thing” which envisages

that a person abets the doing of a thing if he instigates any person for

doing that thing or conspires with one or more persons for doing that

thing or intentionally aids by any act or illegal omission the doing of

that thing.

The appellant has been alleged to have conspired, aided

and abetted the payment of levy to the TPC operatives. However, from

the entire gamut of the allegation, there does not seem to be any

instigation at the behest of the appellant or any web of conspiracy

weaved by the appellant with the TPC operatives. Section 18 of the

UAP Act also speaks of “knowingly facilitating” while Section 107 of

the IPC includes “intentionally aids” but from the outcome of the

investigation it cannot be deciphered as to how and in what manner

extorting of levy would amount to aiding or abetting a terrorist act.

The aforesaid findings is further buttressed by the

-25- Cr. Appeal (D.B.) No. 175 of 2022

modus operandi adopted by the TPC which finds place in the first

supplementary charge-sheet and which reads as under:

“Therefore, from above it surfaces that the modus

operandi of the TPC is that they initially blocked the

mining process in the Amrapali and Magadh area and

threatened the locals and CCL officials and contractors.

Then as part of a well planned conspiracy, they formed

the Village Committees with their own men in the

forefront in Amrapali and Magadh Coal projects of

Jharkhand to start the mining process. Subsequently,

they imposed a levy amount on coal transportation in the

name of loading charges. Some amount does go towards

loading charges but a major share of it goes to the TPC

and their stooges in the village committee.

The coal purchasing companies and others purchase

coal through auction from the CCL and then engage

transport companies for transportation of coal. It is at

this level that the levy is imposed of which the major

share goes to the TPC. The levy amount is drawn in cash

by these transport company owners and supplied to the

TPC which carries its activities in that area.

Occasionally, the TPC leaders like A-14 and A-15 used to

call for secret meetings of the transporters and coal

purchasing companies and instruct them to provide

funds timely and in an organized manner.”

In the second supplementary charge-sheet, in the

concluding part of para 17.4 the same thing is reflected which reads

as under:

“Thus, collection of extortion amount was

systemically organized from the power company directly

or through DO holders, transporters, village committee to

TPC operatives and leaders.”

32. In the backdrop of the aforesaid provisions and the

revelations made by the protected witnesses, we may now refer to the

case of “Sudesh Kedia versus Union of India” (supra) wherein it was

held as follows:

“13.1. A close scrutiny of the material placed before the

Court would clearly show that the main accusation

against the appellant is that he paid levy/extortion

amount to the terrorist organisation. Payment of extortion

money does not amount to terror funding. It is clear from

the supplementary charge-sheet and the other material

on record that other accused who are members of the

terrorist organisation have been systematically collecting

extortion amounts from businessmen in Amrapali and

Magadh areas. The appellant is carrying on transport

-26- Cr. Appeal (D.B.) No. 175 of 2022

business in the area of operation of the organisation. It is

alleged in the second supplementary charge-sheet that

the appellant paid money to the members of the TPC for

smooth running of his business. Prima facie, it cannot be

said that the appellant conspired with the other members

of the TPC and raised funds to promote the organisation.

13.2. Another factor taken into account by the Special

Court and the High Court relates to the allegation of the

appellant meeting the members of the terror organisation.

It has been held by the High Court that the appellant has

been in constant touch with the other accused. The

appellant has revealed in his statement recorded under

Section 164 CrPC that he was summoned to meet A-14

and the other members of the organisation in connection

with the payments made by him. Prima facie, we are not

satisfied that a case of conspiracy has been made out at

this stage only on the ground that the appellant met the

members of the organisation.

13.3. An amount of Rs 9,95,000 (Rupees nine lakh and

ninety-five thousand only) was seized from the house of

the appellant which was accounted for by the appellant

who stated that the amount was withdrawn from the

bank to pay salaries to his employees and other

expenses. We do not agree with the prosecution that the

amount is terror fund. At this stage, it cannot be said

that the amount seized from the appellant is proceeds

from terrorist activity. There is no allegation that the

appellant was receiving any money. On the other hand,

the appellant is accused of providing money to the

members of TPC.

14. After a detailed examination of the contentions of the

parties and scrutiny of the material on record, we are not

satisfied that a prima facie case has been made out

against the appellant relating to the offences alleged

against him. We make it clear that these findings are

restricted only for the purpose of grant of bail to the

appellant and the trial court shall not be influenced by

these observations during trial.”

33. In “Sanjay Jain versus Union of India” (supra) it was

held as follows:

“44. We are of the opinion that it is not possible to hold

that the appellant by his acts, such as, meeting Akraman

Jee and making payment to Akraman Jee became a

member of TPC.”

34. The subsequent development much harped upon by the

learned ASGI is the statement of the approver Sudhanshu Ranjan @

Chhotu Singh u/s 306 Cr.P.C. and his evidence as Witness No. 2 but

-27- Cr. Appeal (D.B.) No. 175 of 2022

on perusal of the said statement much of which is hearsay and which

also encompasses the roles enacted by Sudesh Kedia and Sanjay

Jain, the plea of the appellant that he was in fact a victim of extortion

by TPC and the money was being paid to the members of TPC for

smooth running of the business gets strengthened. So far as some of

the e-mails are concerned, the contents of the e-mails are indicative

of the efforts taken for the smooth running of the business and can in

no way assumed to be pointing towards “terror funding”. The

payment of levy to TPC, Village Committee and others even if it is

taken to be true would lack mens rea since it was not a voluntary act

on the part of the appellant rather an act of compulsion for the

smooth running of the business.

35. We now venture to consider the provisions of Section

43-D(5) which creates a bar in grant of bail to an accused. Section

43-D(5) reads as under:

“(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.”

36. In “NIA versus Zahoor Ahmad Shah Watali” reported in

(2019) 5 SCC 1, it was held as follows:

“23. By virtue of the proviso to sub-section (5), it is the

duty of the Court to be satisfied that there are

reasonable grounds for believing that the accusation

against the accused is prima facie true or otherwise. Our

attention was invited to the decisions of this Court,

which has had an occasion to deal with similar special

provisions in TADA and MCOCA. The principle

underlying those decisions may have some bearing while

considering the prayer for bail in relation to the offences

under the 1967 Act as well. Notably, under the special

enactments such as TADA, MCOCA and the Narcotic

Drugs and Psychotropic Substances Act, 1985, the Court

is required to record its opinion that there are reasonable

-28- Cr. Appeal (D.B.) No. 175 of 2022

grounds for believing that the accused is “not guilty” of

the alleged offence. There is a degree of difference

between the satisfaction to be recorded by the Court that

there are reasonable grounds for believing that the

accused is “not guilty” of such offence and the

satisfaction to be recorded for the purposes of the 1967

Act that there are reasonable grounds for believing that

the accusation against such person is “prima facie” true.

By its very nature, 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 first information

report, must prevail until contradicted and overcome or

disproved by other evidence, and on the face of it, shows

the 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. In

one sense, the degree of satisfaction is lighter when the

Court has to opine that the accusation is “prima facie

true”, as compared to the opinion of the accused “not

guilty” of such offence as required under the other

special enactments. 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. Nevertheless,

we may take guidance from the exposition in Ranjitsing

Brahmajeetsing Sharma, wherein a three-Judge Bench of

this Court was called upon to consider the scope of

power of the Court to grant bail. In paras 36 to 38, the

Court observed thus: (SCC pp. 316-17)

“36. Does this statute require that before a person is

released on bail, the court, albeit prima facie, must

come to the conclusion that he is not guilty of such

offence? Is it necessary for the court to record such a

finding? Would there be any machinery available to

the court to ascertain that once the accused is

enlarged on bail, he would not commit any offence

whatsoever?

37. Such findings are required to be recorded only

for the purpose of arriving at an objective finding on

the basis of materials on record only for grant of bail

and for no other purpose.

38. We are furthermore of the opinion that the

restrictions on the power of the court to grant bail

should not be pushed too far. If the court, having

regard to the materials brought on record, is satisfied

that in all probability he may not be ultimately

-29- Cr. Appeal (D.B.) No. 175 of 2022

convicted, an order granting bail may be passed. The

satisfaction of the court as regards his likelihood of

not committing an offence while on bail must be

construed to mean an offence under the Act and not

any offence whatsoever be it a minor or major offence.

… What would further be necessary on the part of the

court is to see the culpability of the accused and his

involvement in the commission of an organised crime

either directly or indirectly. The court at the time of

considering the application for grant of bail shall

consider the question from the angle as to whether he

was possessed of the requisite mens rea.”

And again in paras 44 to 48, the Court observed: (SCC

pp. 318-20)

“44. The wording of Section 21(4), in our opinion, does

not lead to the conclusion that the court must arrive at

a positive finding that the applicant for bail has not

committed an offence under the Act. If such a

construction is placed, the court intending to grant bail

must arrive at a finding that the applicant has not

committed such an offence. In such an event, it will be

impossible for the prosecution to obtain a judgment of

conviction of the applicant. Such cannot be the

intention of the legislature. Section 21(4) of MCOCA,

therefore, must be construed reasonably. It must be so

construed that the court is able to maintain a delicate

balance between a judgment of acquittal and

conviction and an order granting bail much before

commencement of trial. Similarly, the court will be

required to record a finding as to the possibility of his

committing a crime after grant of bail. However, such

an offence in futuro must be an offence under the Act

and not any other offence. Since it is difficult to predict

the future conduct of an accused, the court must

necessarily consider this aspect of the matter having

regard to the antecedents of the accused, his

propensities and the nature and manner in which he

is alleged to have committed the offence.

45. It is, furthermore, trite that for the purpose of

considering an application for grant of bail, although

detailed reasons are not necessary to be assigned,

the order granting bail must demonstrate application

of mind at least in serious cases as to why the

applicant has been granted or denied the privilege of

bail.

46. The duty of the court at this stage is not to weigh

the evidence meticulously but to arrive at a finding on

the basis of broad probabilities. However, while

dealing with a special statute like MCOCA having

regard to the provisions contained in sub-section (4) of

Section 21 of the Act, the court may have to probe into

-30- Cr. Appeal (D.B.) No. 175 of 2022

the matter deeper so as to enable it to arrive at a

finding that the materials collected against the

accused during the investigation may not justify a

judgment of conviction. The findings recorded by the

court while granting or refusing bail undoubtedly

would be tentative in nature, which may not have any

bearing on the merit of the case and the trial court

would, thus, be free to decide the case on the basis of

evidence adduced at the trial, without in any manner

being prejudiced thereby.

47. In Kalyan Chandra Sarkar v. Rajesh Ranjan this

Court observed: (SCC pp. 537-38, para 18)

‘18. We agree that a conclusive finding in regard to

the points urged by both the sides is not expected

of the court considering a bail application. Still one

should not forget, as observed by this Court in

Puran v. Rambilas: (SCC p. 344, para 8)

“8. … Giving reasons is different from discussing

merits or demerits. At the stage of granting bail a

detailed examination of evidence and elaborate

documentation of the merits of the case has not

to be undertaken. … That did not mean that

whilst granting bail some reasons for prima facie

concluding why bail was being granted did not

have to be indicated.”

We respectfully agree with the above dictum of

this Court. We also feel that such expression of

prima facie reasons for granting bail is a

requirement of law in cases where such orders

on bail application are appealable, more so

because of the fact that the appellate court has

every right to know the basis for granting the

bail. Therefore, we are not in agreement with the

argument addressed by the learned counsel for

the accused that the High Court was not

expected even to indicate a prima facie finding

on all points urged before it while granting bail,

more so in the background of the facts of this

case where on facts it is established that a large

number of witnesses who were examined after

the respondent was enlarged on bail had turned

hostile and there are complaints made to the

court as to the threats administered by the

respondent or his supporters to witnesses in the

case. In such circumstances, the court was duty-

bound to apply its mind to the allegations put

forth by the investigating agency and ought to

have given at least a prima facie finding in

regard to these allegations because they go to

the very root of the right of the accused to seek

bail. The non-consideration of these vital facts as

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to the allegations of threat or inducement made

to the witnesses by the respondent during the

period he was on bail has vitiated the

conclusions arrived at by the High Court while

granting bail to the respondent. The other

ground apart from the ground of incarceration

which appealed to the High Court to grant bail

was the fact that a large number of witnesses

are yet to be examined and there is no likelihood

of the trial coming to an end in the near future.

As stated hereinabove, this ground on the facts

of this case is also not sufficient either

individually or coupled with the period of

incarceration to release the respondent on bail

because of the serious allegations of tampering

with the witnesses made against the

respondent.’

48. In Jayendra Saraswathi Swamigal v. State of

T.N. this Court observed: (SCC pp. 21-22, para 16)

‘16. … The considerations which normally weigh

with the court in granting bail in non-bailable offences

have been explained by this Court in State v. Jagjit

Singh and Gurcharan Singh v. State (UT of Delhi) and

basically they are — the nature and seriousness of the

offence; the character of the evidence; circumstances

which are peculiar to the accused; a reasonable

possibility of the presence of the accused not being

secured at the trial; reasonable apprehension of

witnesses being tampered with; the larger interest of

the public or the State and other similar factors which

may be relevant in the facts and circumstances of the

case.’”

24. A priori, the exercise to be undertaken by the Court

at this stage—of giving reasons for grant or non-grant 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. 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.

26. Be it noted that 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. To wit, soon after the arrest of the accused on

the basis of the FIR registered against him, but before

filing of the charge-sheet by the investigating agency;

after filing of the first charge-sheet and before the filing

of the supplementary or final charge-sheet consequent to

further investigation under Section 173(8) CrPC, until

-32- Cr. Appeal (D.B.) No. 175 of 2022

framing of the charges or after framing of the charges by

the Court and recording of evidence of key witnesses,

etc. However, 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 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.”

37. We are conscious of the fact that charge has been

framed in the present case and in fact the order taking cognizance

was challenged by the appellant in Cr. Appeal (D.B.) No. 119 of 2020

which was rejected and affirmed up to the Hon'ble Supreme Court.

The same though would indicate a strong suspicion as observed in

“NIA versus Zahoor Ahmad Shah Watali ” but it would not oust the

jurisdiction of the court in considering a bail application. The task to

convince the court that there are no reasonable grounds for believing

that the accusations are prima facie true becomes more onerous in a

case of bail without ousting such prayer, irrespective of the stage of

the case after charge sheet is submitted as both operate in different

spheres and the considerations adopted, too, are different.

38. In fact 'Watali' was considered by the Hon'ble Supreme

Court in the case of 'Sudesh Kedia' and it was observed therein that

while considering the grant of bail under Section 43-D (5), it is the

bounden duty of the court to apply its mind to examine the entire

material on record for the purpose of satisfying itself, whether a

prima facie case is made out against the accused or not.

39. The judgment rendered in “NIA versus Zahoor Ahmad

Shah Watali” (supra) has been considered in the case of “Union of

India versus K.A. Najeeb”, reported in (2021) 3 SCC 713, wherein it

has been held as follows:

-33- Cr. Appeal (D.B.) No. 175 of 2022

“16. As regards the judgment in NIA v. Zahoor Ahmad

Shah Watali, cited by the learned ASG, we find that it

dealt with an entirely different factual matrix. In that

case, the High Court had reappreciated the entire

evidence on record to overturn the Special Court’s

conclusion of their being a prima facie case of conviction

and concomitant rejection of bail. The High Court had

practically conducted a mini-trial and determined

admissibility of certain evidence, which exceeded the

limited scope of a bail petition. This not only was beyond

the statutory mandate of a prima facie assessment

under Section 43-D(5), but it was premature and

possibly would have prejudiced the trial itself. It was in

these circumstances that this Court intervened and

cancelled the bail.

17. It is thus clear to us that the presence of statutory

restrictions like Section 43-D(5) of the UAPA per se does

not oust the ability of the constitutional courts to grant

bail on grounds of violation of Part III of the Constitution.

Indeed, both the restrictions under a statute as well as

the powers exercisable under constitutional jurisdiction

can be well harmonised. Whereas at commencement of

proceedings, the courts are expected to appreciate the

legislative policy against grant of bail but the rigours of

such provisions will melt down where there is no

likelihood of trial being completed within a reasonable

time and the period of incarceration already undergone

has exceeded a substantial part of the prescribed

sentence. Such an approach would safeguard against

the possibility of provisions like Section 43-D(5) of the

UAPA being used as the sole metric for denial of bail or

for wholesale breach of constitutional right to speedy

trial.”

The other factors for grant of bail/denial of bail has

been enumerated in the following manner:

“18. Adverting to the case at hand, we are conscious

of the fact that the charges levelled against the

respondent are grave and a serious threat to societal

harmony. Had it been a case at the threshold, we would

have outrightly turned down the respondent’s prayer.

However, keeping in mind the length of the period spent

by him in custody and the unlikelihood of the trial being

completed anytime soon, the High Court appears to have

been left with no other option except to grant bail. An

attempt has been made to strike a balance between the

appellant’s right to lead evidence of its choice and

establish the charges beyond any doubt and

simultaneously the respondent’s rights guaranteed

under Part III of our Constitution have been well

-34- Cr. Appeal (D.B.) No. 175 of 2022

protected.

19. Yet another reason which persuades us to

enlarge the respondent on bail is that Section 43-D(5) of

the UAPA is comparatively less stringent than Section 37

of the NDPS Act. Unlike the NDPS Act where the

competent court needs to be satisfied that prima facie the

accused is not guilty and that he is unlikely to commit

another offence while on bail; there is no such

precondition under UAPA. Instead, Section 43-D(5) of the

UAPA merely provides another possible ground for the

competent court to refuse bail, in addition to the well-

settled considerations like gravity of the offence,

possibility of tampering with evidence, influencing the

witnesses or chance of the accused evading the trial by

absconsion, etc.”

40. The appellant is in custody since 18.01.2022. The

charge sheet contains 185 witnesses, 131 documents and 66 material

exhibits and there is no likelihood of the trial being concluded in the

near future. The conduct of the appellant indicates that he has fully

cooperated with the Investigating Agency and his statements u/s 161

Cr.P.C. as well as u/s 164 Cr.P.C. were recorded though

subsequently his status changed from being a witness to an accused.

41. At this juncture, it would be profitable to refer to the

case of “State of Kerala versus Raneef”, reported in (2011) 1 SCC 784

and the relevant paragraph is quoted thus:

“15. In deciding bail applications an important factor

which should certainly be taken into consideration by

the court is the delay in concluding the trial. Often this

takes several years, and if the accused is denied bail but

is ultimately acquitted, who will restore so many years

of his life spent in custody? Is Article 21 of the

Constitution, which is the most basic of all the

fundamental rights in our Constitution, not violated in

such a case? Of course this is not the only factor, but it is

certainly one of the important factors in deciding whether

to grant bail. In the present case the respondent has

already spent 66 days in custody (as stated in Para 2 of

his counter-affidavit), and we see no reason why he

should be denied bail. A doctor incarcerated for a long

period may end up like Dr. Manette in Charles Dicken’s

novel A Tale of Two Cities, who forgot his profession and

even his name in the Bastille.”

42. The learned court below in its impugned order dated

26.02.2022 has not properly appreciated the materials available on

record as well as the various provisions of the UAP Act while rejecting

-35- Cr. Appeal (D.B.) No. 175 of 2022

the prayer for bail of the appellant.

43. We therefore, on consideration of the entire facets of the

case and the submissions advanced by the learned counsels for the

respective sides come to a conclusion that we are not satisfied that

there are reasonable grounds for believing that the accusation against

the appellant is prima facie true and as a consequence to the findings

noted above, we hereby set aside the order dated 26.02.2022 passed

by the learned AJC-XVI-cum-Spl. Judge, NIA, Ranchi in Misc.

Criminal Application No. 109/2022, corresponding to Special (NIA)

Case No. 03 of 2018 (R.C. Case No. 06/2018/NIA/DLI), arising out of

Tandwa P.S. Case No. 02 of 2016.

44. The appellant shall be released on bail on usual

conditions to be decided by the learned AJC-XVI-cum-Spl. Judge,

NIA, Ranchi.

45. We make it clear that the learned trial court shall not be

influenced while conducting the trial of any of the observation made

by us in this order as such observations/findings are restricted only

for the purpose of grant of bail to the appellant.

46. This appeal is allowed.

47. Pending I.A., if any, stands disposed off.

48. Let a copy of this order be sent through “FAX”

immediately to the concerned court.

(Rongon Mukhopadhyay, J.)

I Agree

(Rajesh Kumar, J.)

(Rajesh Kumar, J.)

High Court of Jharkhand at Ranchi

Dated, the 11

th

day of April, 2022.

Alok/AFR