2023 INSC 655 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 639 OF 2023

VERNON …APPELLANT(S)

VERSUS

THE STATE OF MAHARASHTRA & ANR. ...RESPONDENT(S)

WITH

CRIMINAL APPEAL NO.640 OF 2023

J U D G M E N T

ANIRUDDHA BOSE, J.

The appellants before us assail two judgments of the High

Court of Judicature at Bombay rejecting, in substance, their

prayers for bail. Both the applications were filed on 27

th

October

2018 after the Special Judge, Pune under the Unlawful

Activities (Prevention) Act, 1967 (“1967 Act”) had dismissed

their bail plea. The decisions of the High Court were delivered

on the same date i.e. 15

th

October 2019.

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2.We shall deal with both the appeals in this judgment as

the detention of the appellants was on the basis of the same

First Information Report (“FIR”) and the chargesheet also

contains the same Sections in respect of which offences are

alleged to have been committed by them. These are Sections

121, 121A, 124A, 153A, 505(1)(b), 117, 120B read with Section

34 of the Indian Penal Code, 1860 (“1860 Code”) and Sections

13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act.

Wherever there are distinguishing features vis-à-vis the

individual appellants in relation to the nature of evidence

against them relied on by the Investigating Agency, we shall

refer to them separately. In the subject-case, initially

investigation was conducted by the regular law enforcement

agency, being the State police. The Central Government, in

exercise of their power under Section 6(5) read with Section 8 of

the National Investigation Agency Act, 2008 directed the

National Investigation Agency (“NIA”) to take up investigation of

the case by an order passed on 24

th

January 2020. The case

was re-registered at the NIA Police Station, Mumbai as RC

No.01/2020/NIA/MUM. Before us, the appeals have been

contested by Mr. Nataraj, learned Additional Solicitor General,

appearing for the NIA.

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3.The proceedings against the appellants have their origin in

an FIR, bearing CR No.4/2018 dated 8

th

January 2018

registered with Vishrambaug Police Station, Pune,

Maharashtra. The informant is one Tushar Ramesh Damgude.

The incident which prompted filing of the FIR was in relation to

a programme at Shaniwar Wada, Pune held on 31

st

December

2017. The organisers for this event- Elgar Parishad, were

activists of Kabir Kala Manch, a cultural organisation. There

were various events in connection with the said programme,

which according to the prosecution, were provocative in nature

and had the effect of creating enmity between caste groups

leading to violence and loss of life, as also state wide agitation.

There were books kept at the venue, which, according to the

maker of the FIR were also provocative. There were incidents of

violence, arson, and stone pelting near Bhima-Koregaon and six

members of Kabir Kala Manch and other associates were named

as accused in the FIR. The appellants did not feature in the

FIR. The scope of the investigation was subsequently expanded,

as we find in the judgment giving rise to Criminal Appeal

No.639 of 2023 on 17

th

April 2018 the Pune Police conducted

searches at the residences of eight individuals, i.e. (1) Rona

Wilson of Delhi, (2) Surendra Gadling of Nagpur, (3) Sudhir

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Dhawale of Mumbai, (4) Harshali Potdar of Mumbai, (5) Sagar

Gorkhe (also referred to as Sagar Gorakhe by the prosecution)

of Pune, (6) Deepak Dhengale of Pune, (7) Ramesh Gaichor of

Pune and (8) Jyoti Jagtap of Pune. The residences of Shoma

Sen and Mahesh Sitaram Raut, who have also been implicated

in the same case, were searched on 6

th

June 2018. It has been

argued by the NIA that during the searches, electronic devices

and documents apart from other materials were recovered and

the seized articles were sent to Forensic Science Laboratory

(“FSL”) for analysis. Cloned copies thereof, according to the

prosecution, revealed incriminating materials. The appellants’

names did not also figure in the initial chargesheet dated 15

th

November 2018, which implicated ten individuals as accused.

Among them were Sudhir Dhawale, Surendra Gadling, Shoma

Sen, Mahesh Raut and Rona Wilson, who were in detention at

that point of time. Rest five accused persons were absconding at

that point of time. We are informed by Mr. Nataraj that one of

the absconding accused, Milind Teltumbde, has since passed

away.

4.Searches were conducted at the residences/workplaces of

the appellants and they were arrested on the same day, i.e. on

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28

th

August 2018. They were initially put under house arrest

and subsequently sent to judicial custody. Case of the NIA is

that various letters and other materials recovered from the

arrested co-accused persons including Surendra Gadling and

Rona Wilson showed appellants’ involvement with the

Communist Party of India (Maoist). This organisation has been

placed in the First Schedule to the 1967 Act as a terrorist

organisation by a notification dated 22

nd

June 2009 issued in

terms of Section 2(m) of the 1967 Act. Prosecution’s case is that

the appellants played an active role in recruitment of and

training for cadres of the said organisation and Arun Ferreira

(whom we shall refer to henceforth as AF), being the appellant

in Criminal Appeal No.640 of 2023 also had role in managing

finances of that organisation. The other accused persons who

were detained in the third phase were P. Varavara Rao and

Sudha Bharadwaj. Among them, we are apprised by the

learned senior counsel for the appellants, Ms. Rebecca John

appearing for Vernon Gonsalves (VG in short), being the

appellant in Criminal Appeal No.639 of 2023 and Mr. R. Basant

(representing AF) that, P. Varavara Rao has been enlarged on

bail by an order of this Court passed on 10

th

August 2022.

Sudha Bharadwaj is on “default bail” granted by the Bombay

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High Court on 1

st

September 2021. Petition for special leave to

appeal against that order was rejected by a three-Judge Bench

of this Court on 7

th

December 2021. Gautam Navlakha, as per

information made available before this Court, is under house

arrest. Another supplementary chargesheet has been submitted

on 21

st

February 2019 by the State police implicating the

appellants, along with other co-accused persons for commission

of aforesaid offences under the 1967 Act and the 1860 Code. On

9

th

October 2020, NIA had filed a further supplementary

chargesheet against, inter-alia, Dr. Anand Teltumbde, Gautam

Navlakha, Hany Babu, Sagar Gorkhe, Ramesh Gaichor, Jyoti

Jagtap, Stan Swami (since deceased) and Milind Teltumbde

(since deceased) broadly under the same provisions of the 1860

Code and the 1967 Act. Barring deceased Milind Teltumbde, all

these individuals had been arrested. Among them, Dr. Anand

Teltumbde has been released on bail by the Bombay High Court

and the judgment to that effect was delivered on 18

th

November

2022. The petition for special leave to appeal against that

decision has been dismissed by a coordinate Bench of this

Court on 25

th

November 2022. VG, it transpires from his

pleadings, is a writer, columnist and has been vocal on issues of

human rights, prison rights and reform of the criminal justice

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system. AF has described himself as a practising Advocate of

the Bombay High Court as also a cartoonist and a human

rights activist.

5.After the arrest of the appellants, a writ petition was filed

before this Court [Writ Petition (Criminal) No. 260/2018-

Romila Thapar and Ors. -vs- Union of India and Ors.]. One of

the prayers in this petition was for direction of immediate

release of all activists arrested in connection with the Bhima

Koregaon violence. Direction was also sought for staying any

arrest until the matter was fully investigated and decided by

this Court. That writ petition was dismissed on 28

th

September

2018 (by a 2:1 majority). The majority view was that it was not

a case of arrest because of expression of mere dissenting views

or difference in political ideology of the named accused, but

concerning their links with the members of the banned

organisation. At that stage, the Court did not go into an

exercise of evaluating the materials brought before it. This

finding or observation, however, cannot aid the prosecution in a

regular application for bail, the appeals in respect of which we

are adjudicating. The Court deciding on specific plea of the

appellants for bail is required to independently apply its mind

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and examine the materials placed before it for determining the

question of granting bail to the individual applicants.

6.As the charges against the appellants include commission

of offences under different Sections of the 1967 Act, including

those coming within Chapters IV and VI thereof, the restriction

on grant of bail as contained in Section 43D (5) of the said Act

would apply in their cases. We shall also refer to the ratio of the

judgment of a three-Judge Bench of this Court in the case of

Union of India -vs- K.A. Najeeb [(2021) 3 SCC 713] while

examining the appellants’ cases in the backdrop of the aforesaid

provision. In this judgment, it has been held that such

statutory restrictions, per se, do not oust the jurisdiction of the

Constitutional Courts to grant bail on grounds of violation of

Part III of the Constitution of India and it would be within the

jurisdiction of the Constitutional Courts, i.e., this Court and

the High Courts to relax the rigours of such provisions, where

there is no likelihood of trial being completed within a

reasonable time and the period of incarceration a detenue has

already undergone, covers a substantial part of the prescribed

sentences for the offences with which the latter has been

charged. This ratio has been relied upon by the learned counsel

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for the appellants. Other authorities cited on this point are

Thwaha Fasal -vs- Union of India [2021 SCC OnLine SC 1000]

and Angela Harish Sontakke -vs- State of Maharashtra

[(2021) 3 SCC 723]. On general proposition of law on the aspect

of grant of bail due to delay in trial, the case of Sagar Tatyaram

Gorkhe and Another -vs- State of Maharashtra [(2021) 3 SCC

725] has been relied upon. In course of hearing, we were

apprised by the appellants’ counsel that charges against the

appellants are yet to be framed.

7.We have referred to the case of Dr. Anand Teltumbde, who

was added as an accused in relation to the same case on 23

rd

August 2018 and has subsequently enlarged on bail. His name,

according to the prosecution, had surfaced from digital devices

and other articles seized by the police, in the expanded phase of

investigation. Dr. Anand Teltumbde had surrendered on 14

th

April 2020 after his plea for pre-arrest bail was rejected.

Subsequently, however, he has been released on bail.

8.Arguments have been advanced before us on the question

as to whether mere membership of a banned organisation

constitutes an offence or not. On behalf of the appellants’

reliance was placed on the prevailing view that the same would

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not be sufficient to constitute an offence under the 1967 Act or

the Terrorist and Disruptive Activities (Prevention) Act, 1987

(which statute also has similar provisions) unless it is

accompanied with some overt offending act. A three Judge-

Bench of this Court in the case of Arup Bhuyan -vs- State of

Assam and Another [2023 SCC OnLine SC 338] has held that

if a person, even after an organisation is declared as an

unlawful association, continues to be a member thereof, would

attract penalty under Section 10 of the 1967 Act.

9.Barring Section 13, all the offences with which the

appellants have been charged with under the 1967 Act fall

within Chapters IV and VI of the said statute. This is apart from

the offences under the 1860 Code. Hence, there is a duty of the

Court to form an opinion on perusal of the case diary or the

report made under Section 173 of the Code of Criminal

Procedure, 1973 (“1973 Code”) that there are reasonable

grounds for believing that the accusations against such persons

are prima facie true while considering the prayer for bail, to

reject prayers for bail of the appellants. The manner in which

the Court shall form such opinion has been laid down by this

Court in the case of National Investigation Agency -vs-

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Zahoor Ahmad Shah Watali [(2019) 5 SCC 1]. It has been held

in this judgment:-

"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 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 v. State of Maharashtra,

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[(2005) 5 SCC 294 : 2005 SCC (Cri) 1057], 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 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

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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 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 [(2004) 7 SCC 528 : 2004 SCC (Cri)

1977] this Court observed : (SCC pp. 537-38,

para 18)

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‘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 [(2001) 6 SCC

338: 2001 SCC (Cri) 1124] : (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 to the

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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. (2005) 2 SCC 13 :

2005 SCC (Cri) 481] 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 [(1962) 3 SCR

622 : AIR 1962 SC 253 : (1962) 1 Cri

LJ 215] and Gurcharan Singh v. State

(UT of Delhi) [(1978) 1 SCC 118 : 1978

SCC (Cri) 41] 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.’”

10.We shall first deal with the argument of the appellants

that the accusations against the appellants under the Sections

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which fall within Chapters IV and VI of the 1967 Act cannot

lead to a prima facie satisfaction of the Court that such

accusations are true and the available evidences at this stage

do not fit the ingredients of these restrictive provisions. The

nature of the accusations to invoke the bail-restricting clause

has been stated in the supplementary chargesheet in which the

appellants were implicated. The counter-affidavits also contain

printouts/copies of several letters and documents. In the case

of VG, the Agency has relied upon the statement of a protected

witness who has disclosed that he had met VG in the year

2002. Referring to a time-length between 2002 and 2007, he

has stated that during that period, both VG and AF were

members of the Maharashtra State Committee of the said party.

It is also stated by the protected witness that, in 2002 VG

wanted to resign from the party but his resignation was not

accepted.

11.Before embarking on this exercise, we reproduce below the

following provisions of the 1967 Act, the application of which we

shall have to examine in respect of the appellants: -

“2. Definitions.- (1) In this Act, unless the context

otherwise requires,-

xxxxxxxxxxx

(k) “terrorist act” has the meaning assigned to

it in section 15, and the expressions

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“terrorism” and “terrorist” shall be construed

accordingly;

xxxxxxxxxxx

(m) “terrorist organisation” means an

organisation listed in the [First Schedule] or

an organisation operating under the same

name as an organisation so listed;

13. Punishment for unlawful activities.—(1) Whoever—

(a) takes part in or commits, or

(b) advocates, abets, advises or incites the

commission of, any unlawful activity, shall be

punishable with imprisonment for a term which

may extend to seven years, and shall also be

liable to fine.

(2) Whoever, in any way, assists any unlawful activity of

any association declared unlawful under section 3, after the

notification by which it has been so declared has become

effective under sub-section (3) of that section, shall be

punishable with imprisonment for a term which may extend

to five years, or with fine, or with both.

(3) Nothing in this section shall apply to any treaty,

agreement or convention entered into between the

Government of India and the Government of any other

country or to any negotiations therefor carried on by any

person authorised in this behalf by the Government of India.

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

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(iiia) 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

(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 or 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.

16. Punishment for terrorist act.—(1) Whoever commits

a terrorist act shall,—

(a) if such act has resulted in the death of any

person, be punishable with death or

imprisonment for life, and shall also be liable to

fine;

(b) in any other case, be punishable with

imprisonment for a term which shall not be less

than five years but which may extend to

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imprisonment for life, and shall also be liable to

fine.

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,—

(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.

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.

18A. Punishment for organising of terrorist camps. --

Whoever organises or causes to be organised any camp or

camps for imparting training in terrorism 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.

18B. Punishment for recruiting of any person or persons for

terrorist act.—Whoever recruits or causes to be recruited any

person or persons for 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.

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20. Punishment for being member of terrorist gang or

organisation.—Any person who is a member of a terrorist

gang or a terrorist organisation, which is involved in terrorist

act, shall be punishable with imprisonment for a term which

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

to fine.

38. Offence relating to membership of a terrorist

organisation.—(1) A person, who associates himself, or

professes to be associated, with a terrorist organisation with

intention to further its activities, commits an offence relating

to membership of a terrorist organisation:

Provided that this sub-section shall not apply where the

person charged is able to prove—

(a) that the organisation was not declared as a terrorist

organisation at the time when he became a member or

began to profess to be a member; and

(b) that he has not taken part in the activities of the

organisation at any time during its inclusion in the First

Schedule as a terrorist organisation.

(2) A person, who commits the offence relating to

membership of a terrorist organisation under sub-section (1),

shall be punishable with imprisonment for a term not

exceeding ten years, or with fine, or with both.

39. Offence relating to support given to a terrorist

organisation.—(1) A person commits the offence relating to

support given to a terrorist organisation,—

(a) who, with intention to further the activity of a terrorist

organisation,—

(i) invites support for the terrorist organization, and

(ii) the support is not or is not restricted to provide money or

other property within the meaning of section 40; or

(b) who, with intention to further the activity of a terrorist

organisation, arranges, manages or assists in arranging or

managing a meeting which he knows is—

(i) to support the terrorist organization, or

(ii) to further the activity of the terrorist organization, or

(iii) to be addressed by a person who associates or professes

to be associated with the terrorist organisation; or

(c) who, with intention to further the activity of a terrorist

organisation, addresses a meeting for the purpose of

encouraging support for the terrorist organisation or to

further its activity.

20 | P a g e

(2) A person, who commits the offence relating to support

given to a terrorist organisation under sub-section (1) shall

be punishable with imprisonment for a term not exceeding

ten years, or with fine, or with both.

40. Offence of raising fund for a terrorist

organisation.—(1) A person commits the offence of raising

fund for a terrorist organisation, who, with intention to

further the activity of a terrorist organisation,—

(a) invites another person to provide money or other

property, and intends that it should be used, or has

reasonable cause to suspect that it might be used, for the

purposes of terrorism; or

(b) receives money or other property, and intends that it

should be used, or has reasonable cause to suspect that it

might be used, for the purposes of terrorism; or

(c) provides money or other property, and knows, or has

reasonable cause to suspect, that it would or might be used

for the purposes of terrorism.

Explanation.—For the purposes of this sub-

section, a reference to provide money or other

property includes—

(a) of its being given, lent or otherwise made

available, whether or not for consideration; or

(b) raising, collecting or providing funds through

production or smuggling or circulation of high

quality counterfeit Indian currency.

(2) A person, who commits the offence of raising

fund for a terrorist organisation under sub-section

(1), shall be punishable with imprisonment for a

term not exceeding fourteen years, or with fine, or

with both.

43D. Modified application of certain provisions of the

Code.--(1) Notwithstanding anything contained in the Code

or any other law, every offence punishable under this Act

shall be deemed to be a cognizable offence within the

meaning of clause (c) of section 2 of the Code, and

"cognizable case" as defined in that clause shall be

construed accordingly.

(2) Section 167 of the Code shall apply in relation to a case

involving an offence punishable under this Act subject to the

modification that in sub-section (2),--

(a) the references to "fifteen days", "ninety days" and "sixty

days", wherever they occur, shall be construed as references

to "thirty days", "ninety days" and "ninety days"

respectively; and

21 | P a g e

(b) after the proviso, the following provisos shall be inserted,

namely:--

"Provided further that if it is not possible to complete the

investigation within the said period of ninety days, the Court

may if it is satisfied with the report of the Public Prosecutor

indicating the progress of the investigation and the specific

reasons for the detention of the accused beyond the said

period of ninety days, extend the said period up to one

hundred and eighty days:

Provided also that if the police officer making the

investigation under this Act, requests, for the purposes of

investigation, for police custody from judicial custody of any

person in judicial custody, he shall file an affidavit stating

the reasons for doing so and shall also explain the delay, if

any, for requesting such police custody.

(3) Section 268 of the Code shall apply in relation to a case

involving an offence punishable under this Act subject to the

modification that--

(a) the reference in sub-section (1) thereof

(i) to "the State Government" shall be construed as a

reference to "the Central Government or the State

Government.";

(ii) to "order of the State Government" shall be construed as

a reference to "order of the Central Government or the State

Government, as the case may be"; and

(b) the reference in sub-section (2) thereof, to 'the State

Government" shall be construed as a reference to "the

Central Government or the State Government, as the case

may be".

(4) Nothing in section 438 of the Code shall apply in relation

to any case involving the arrest of any person accused of

having committed an offence punishable under this Act.

(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.

22 | P a g e

(6) The restrictions on granting of bail specified in sub-

section (5) is in addition to the restrictions under the Code or

any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in sub-

sections (5) and (6), no bail shall be granted to a person

accused of an offence punishable under this Act, if he is not

an Indian citizen and has entered the country

unauthorisedly or illegally except in very exceptional

circumstances and for reasons to be recorded in writing.”

12.Allegations against these two appellants appear, inter-alia,

from paragraphs 17.5, 17.9, 17.10, 17.11, 17.15 17.18 and

17.19 of the first supplementary chargesheet. These paragraphs

from the chargesheet dated 21

st

February 2019 are quoted

below:-

“17.5 During the investigation of this crime it

emerged that the activity of the accused in this

was not limited to only creating antagonism

between two sections but they were also doing

other destructive acts against the country.

Accused Sudhir Dhawale, Rona Wilson,

Surendra Gadling, Mahesh Raut and Shoma sen

had done unlawful and terrorist acts in

accordance with a pre-planned plot by and on

behalf of the banned organization C.P.I (Maoist) ,

a large country wide conspiracy to overthrow

through force of violence the constitutionality

established democracy and administrative

system in the country. It has also emerged that

the present crime is also one part of this

conspiracy.

Since the participation of accused No.1

Varavara Rao, No.2 Vernon Gonsalves, No.3 Arun

Ferreira, No.4 Sudha Bharadwaj and other

accused in the said conspiracy of the banned

organization C.P.I (Maoist) became clear, their

residences and those places from where evidence

could possibly be obtained were searched on

28/08/2018.

17.9 It has emerged that accused No.2 Vernon

Gonsalves No.3 Arun Ferreira and No.4 Sudha

23 | P a g e

Bharadwaj along with other accused have

recruited members for the banned terrorist

organization. They are also active members of

the said banned organization and have fulfilled

the objectives of the banned organization by

doing propaganda and dissemination through

the medium of frontal organization with the

ideology of the organization.

17.10 Accused No.2 Vernon Gonsalves has been

convicted and sentenced by the Hon’ble Court of

Session , Nagpur in C.R.No.10/2007 offence u/s

10,13,16,17,18,20,23,40(2) Unlawful Activities

(Prevention) Act, 25(1-B) Arms Act, 6,9(b)

Explosives Act, 4(b), 5 Explosive Substances act

120-B, 121-A IPC of A.T.S. Kala Chowky Police

Station , Mumbai. He has accordingly served the

sentence. Accused Vernon Gonsalves Unlawful

Activities as member of banned organization

have been going on continuously.

17.11 During investigation of the said crime it

has emerged that I.A.P.L (Indian Association of

People’s Lawyers) is a frontal organization of the

banned organization C.P.I (Maoist) and is

working according to the organization’s direction

and orders and with its economic backing to

fulfill the objectives of the banned organization.

Accused no.3 Arun Ferreira , No.4 Sudha

Bharadwaj and Surendra Gadling are members

of the said frontal organization. They along with

other accused have made conscious attempts to

spread this frontal organization. By doing

various unlawful activities through the medium

of this frontal organization they have endangered

the stability of the country.

17.15. Thus accused nos. 01 to 04 and other

accused are members of the banned terrorist

organization CPI (Maoist). All work related to this

organization is done by these accused is an

underground manner. It has emerged from the

evidence obtained that frontal organization

which supposedly promote democratic rights and

civil liberties, such as Indian Association of

People’s Lawyers (I.A.P.L) , Anuradha Ghandy

Memorial Committee (A.G.M.C), Kabir Kala

Manch, Persecuted Prisoners Solidarity

Committee (P.P.S.C) are set up or similar

organizations are infiltrated in as systematic

manner and under their cover the work related to

24 | P a g e

the terrorist organization C.P.I (Maoist) is being

accomplished is an extremely secret manner.

17.18. During the Investigation it has emerged

that the accused No.01 to 04 in this offence and

other accused have worked as part of a pre-

planned conspiracy devised by the banned

organisation C.P.I. (Maoist), a large, countrywide

plot and conspiracy to overthrow by force of

violence the democratic administrative system

established under the country’s constitution. It

emerged that the organisation C.P.I. (Maoist) and

the members of the organisation in this offence

have hatched the conspiracy of this offence.

17.19. Accused no.1 in the said offence Varavara

Rao, Accused Rona Wilson and Surendra

Gadling along with the Polit Bureau and Central

Committee and other underground members of

the banned terrorist organisation C.P.I.(Maoist)

hatched a criminal conspiracy and obtained the

participation of the accused no.02 Vernon

Gonsalves, accused no.3 Arun Ferreira and

accused no.04 Sudha Bharadwaj in the said

conspiracy and got them to participate as active

members of the banned C.P.I. (Maoist)

organisation banned by the Government of India

for the continuation of Unlawful Activity, for

exchange of messages, for the implementation of

the goals and policies of the said unlawful

organisation by planning and convening sittings

along with them as also to help their unlawful

activities. In same manner it has emerged that

hard disks, pendrives, memory cards, mobiles,

etc. seized during the house search of accused

no.1 Varavara Rao, Surendra Gadling and Rona

Wilson contained correspondence, papers,

photographs, etc. related to the banned

CPI(Maoist) organisation as also that they

attempted in different ways to implement the

goals, policies and objectives of the said

organisation. It also emerged that they attempted

in different ways to do acts against the country

to overthrow the democratic and lawful

administrative system through the medium of

frontal organisations established on behalf of the

banned organisation in urban areas.”

(quoted verbatim from paperbook)

25 | P a g e

13.In the first statement, the protected witness who appears

to have had been associated with Maoist movement claims to

have met VG in the year 2002 as we have already indicated. He

has spoken of a timeline between 2002 to 2007. According to

him, at that time VG and AF were members of the Maharashtra

State Committee, presumably of CPI (Maoist) organisation. This

statement was recorded on 27

th

January 2019 by an Assistant

Commissioner of Pune Police. The protected witness has made

another statement on 27

th

July 2020 before the police in which

he has referred to participation of AF in a seminar of

Revolutionary Democratic Front in Hyderabad in the year 2012

and VG in September 2017 by an organisation referred to as

“Virasam”. These were also broadly repeated in his statement

before a Magistrate recorded under Section 164 of the 1973

Code on 28

th

July 2020. The prosecution has also relied on

statements made by one Kumarsai, who appears to have been

associated with the same organisation. Such statements

appear to have been made on 2

nd

November 2018 and 23

rd

December 2018. He has stated that he had personally never

seen VG but according to him, VG was doing the work of uniting

intellectuals. About AF, he is alleged to have said that he was

“intruding” in student organisations and creating cadre, who

26 | P a g e

were being sent to forests. He also claims to have met AF in the

2003-2007 phase. The third witness, whose statements have

also been relied upon by the prosecution agency is one

Sudarshan Satyadeo Ramteke. He has referred to another Arun

(Arun Bhelke) in his statement, whom he had met while working

for an organisation in Chandrapur. He also declared himself as

a party associate in his statement, and claims to have had been

introduced to AF by another person. He has alleged that AF,

Milind Teltumbde and Anil Nagpure had asked him to work with

the said organisation.

14.VG has been earlier implicated in 19 cases for alleged

crimes under the 1967 Act, the Arms Act 1959, and the

Explosives Act 1884. But it has been submitted before us on his

behalf that he has been acquitted in 17 out of these 19 cases. In

respect of another case, his discharge application is pending. He

was convicted in Case No.257/11 by the Sessions Judge,

Nagpur under Section 25 (1B) of the Arms Act 1959, Sections

10(a)(i) and 13(1)(b) of the 1967 Act. There were charges against

him also under Section 9(B) of the Explosives Act 1884,

Sections 4(b) and 5 of the Explosives Substances Act, 1908 and

Sections 10 (a)(ii)(iii)(iv), 10(b), 16, 17, 18, 20 and 23 of the

1967 Act and Sections 120B and 121A of 1860 Code. It has

27 | P a g e

been emphasised by learned counsel for VG that his conviction

is under appeal before the High Court, and the offences for

which he has been convicted do not fall within offences

incorporated in Chapters IV and VI of the 1967 Act. The other

case is Sessions Case No.261/10 pending before the Sessions

Court at Surat.

15.The prosecution has referred to some letters alleged to

have been recovered from the computers or other devices of the

co-accused persons in which activities of the two appellants

have been referred to. We shall deal with these communications

in the subsequent paragraphs of this judgment. Under

ordinary circumstances in a petition for bail, we must point out,

this exercise of analysis of evidence would not have been

necessary. But in view of the restrictive provisions of Section

43D of the 1967 Act, some element of evidence-analysis

becomes inevitable.

16.The High Court in dealing with both these appeals had

opined that the Investigating Agency had materials which prima

facie showed that the applicants were part of a larger

conspiracy attracting the offences contained in Sections 121A,

117 and 120B of the 1860 Code as well as Section 18 of the

1967 Act against them. The High Court had invoked the

28 | P a g e

allegations of recruiting cadres for the banned organisation, to

import the provisions of Section 18B of the 1967 Act. It further

invoked Section 20 of the same statute on the ground that the

appellants had been active members of the banned

organisation. In the same way, the view of the High Court was

that Sections 38 and 39 of the 1967 Act were attracted against

the appellants. The High Court found that there were sufficient

materials in the chargesheet against the appellants and there

were reasonable grounds to believe that the accusation of

commission of offences punishable under Chapters IV and VI of

the 1967 Act was prima facie true in relation to both the

appellants. The High Court, however, did not take into

consideration, the factor of the appellants’ continued detention.

But the judgment of the High Court was delivered on 15

th

October 2019, when the appellants were in detention for a

period little over one year.

17.The NIA has also referred to a set of letters which are

alleged to have been recovered from electronic devices of the co-

accused persons in course of searches. The other set of

documents on which the NIA has placed reliance, are

literatures, pamphlets etc. some of which are meant to have

been recovered from the residences of the appellants

29 | P a g e

themselves. So far as the aforesaid letters are concerned, copies

thereof have been annexed to the courter-affidavits of the NIA

filed in connection with both the appeals. We shall refer to

them in this judgment in the way they have been described

numerically as annexures in NIA’s counter-affidavit in the

appeal of AF. The first document is an undated letter addressed

to Surendra, from an unnamed sender, marked as Annexure “R-

6”. This letter is claimed to have been recovered from the

computer of one of the co-accused and refers to Radical Student

Union initiative by AF and VG. This letter requests the

addressee to ask Arun to manage finances for legal defence of

one Murgan. There is further reference to two other individuals

who apparently have been inspired by the struggles of AF and

VG.

18.The second document is a letter dated 18

th

April 2017,

marked as Annexure “R-10”, addressed to one “Comrade

Prakash” and is claimed to have been written by “R”.

Prosecution claims “R” is Rona Wilson. Only reference to the

two appellants in this document is that they, and others were

equally concerned about the “two-line struggle” that was slowly

taking shape on the urban front. The source of this letter has

not been disclosed in the counter-affidavit. From the content of

30 | P a g e

this letter, the Agency wants to establish that the appellants

were senior leaders of the banned organisation.

19. The third document is a letter dated 25

th

September

2017, marked as Annexure “R-12”, written by “Comrade

Prakash”, which is claimed to have been recovered from the

computer of Surendra Gadling and addressee thereof is

“Comrade Surendra”. Here also there is appreciation of

activities of ‘Vernon’ and ‘Arun’ in motivating research scholars

to get them involved in the revolutionary movement. About VG,

it is recorded that one “Comrade G” has been asked to arrange

APT to meet with Vernon.

20.As regards AF, his name appears in an undated letter,

marked as Annexure “R-4”, addressed to Surendra by Darsu,

which refers to organisation of a joint meeting by the addressee

and Arun in Hyderabad. The next letter is purported to have

been written to Prakash by Surendra on 5

th

November 2017 and

is marked as Annexure “R-5”. It refers to establishing Indian

Association of People’s Lawyer (“IAPL”) in Kerala for which

discussion was held with Arun. According to the Agency, IAPL –

a lawyer’s body is a frontal organisation of the banned

organisation. This communication records a proposed visit to

Kerala on International Human Rights Day by AF and the

31 | P a g e

author thereof. This is followed by a further communication

from Prakash to Surendra dated 16

th

July 2017 (“R-7”). This

letter records a proposed visit of Arun to Chennai in connection

with release of a detained party member as also raising of funds

for the legal defence of detained persons. Here also, there is

appreciation of AF and VG’s work. The next letter at Annexure

“R-22” is claimed to have been written by Sudha Bharadwaj to

Prakash and this letter relates to a seminar titled “Udta

Loktantra against the UAPA Act” in which Arun was to

participate. Lastly there is a letter at Annexure “R-14” written

by one Anantwa to Comrade Monibai which relates to the

celebration of 50

th

Anniversary of the Great Proletarian

revolution and Naxalites organisation in Mumbai (Bombay) and

records that the party had sent revolutionary greetings to

Comrades of various associations, including the appellant,

Arun.

21.There is also a reference to an account statement alleged

by the prosecution to have been recovered from the laptop of

Rona Wilson (Annexure “R-3”). We reproduce below this

statement in the same form as it has been represented in the

said Annexure:-

“Surendra=R=2.5L from Milind

32 | P a g e

Shoma & amp; Sudhir = R and D = 1L from Surendra

Amit B = R = 1.5 for CPDR canvasing

And T = R = 90T from Surendra (Through Milind)

Myself = R = 1.8L from Com Manoj

Arun = R = 2L from Com Darsu

VV = R = 5L from Com G.”

22.Apart from these letters and statements, various

literatures, books etc. have been referred to by the prosecution

which they claim to have recovered from the residences of AF

and VG. These mainly involve writings on extreme left-wing

ideology including its application to India. Similar materials are

alleged to have been recovered from other accused persons as

well. Recovery of different electronic communication devices

like Mobile Phones, Tablets, Pen Drives and ancillary items is

alleged to have been made. From these devices themselves,

however, no evidence has been cited before us which would

implicate AF and VG in terrorist acts and the other offences

barring the letters on which emphasis has been laid by the

agency. We have already referred to the letters which the law

enforcement agency alleges to have recovered from the devices

of other accused persons in which there are references to AF

and VG. Call Detail Records have also been referred to for

establishing location of the accused and also their inter-

association.

33 | P a g e

23.In pursuance of the judgment of this Court in the case of

Zahoor Ahmad Shah Watali (supra) the documents relied upon

by the prosecution at this stage ought to prevail until overcome

or disproved by other evidences. In the case of Dr. Anand

Teltumbde -vs- National Investigation Agency and Another

[2022 SCC OnLine Bom 5174] allegations were similar in nature

against the petitioner therein. He was charged with all the

Sections of the 1967 Act as has been done in the cases of AF

and VG except Section 40. The Bombay High Court by a

judgment delivered on 18

th

November 2022 had enlarged him on

bail. The NIA’s petition for special leave to appeal [SLP(Crl) No.

11345/2022] against that judgment was dismissed by a

Coordinate Bench of this Court on 25

th

November 2022.

24.As it would be evident from the analysis of the evidence

cited by the NIA, the acts allegedly committed by the appellants

can be categorised under three heads. The first is their

association with a terrorist organisation which the prosecution

claims from the letters and witness statements, particulars of

which we have given above. But what we must be conscious of,

while dealing with prima facie worth of these statements and

documents is that none of them had been seized or recovered

from the appellants but these recoveries are alleged to have been

34 | P a g e

made from the co-accused. The second head of alleged offensive

acts of the appellants is keeping literatures propagating violence

and promoting overthrowing of a democratically elected

government through armed struggle. But again, it is not the

NIA’s case that either of the two appellants is the author of the

materials found from their residences, as alleged. None of these

literatures has been specifically proscribed so as to constitute an

offence, just by keeping them. Thirdly, so far as AF is concerned,

some materials point to handling of finances. But such

finances, as per the materials through which the dealings are

sought to be established, show that the transaction was mainly

for the purpose of litigation on behalf of, it appears to us,

detained party persons. The formation of or association with a

legal front of the banned terrorist organisation has also been

attributed to AF, in addition. The High Court while analysing

each of these documents individually did not opine that there

were reasonable grounds for believing that the accusations

against such persons were not prima facie true. Those offences

which come within Chapters IV and VI of the 1967 Act, charged

against the appellants, are Sections 16, 17, 18, 18B, 20, 38, 39

and 40. We have summarised the nature of allegations reflected

in the chargesheet as also the affidavit of the NIA. Now we shall

35 | P a g e

have to ascertain if on the basis of these materials, the

prosecution has made out reasonable grounds to persuade the

Court to be satisfied that the accusations against the appellants

are prima facie true. There is charge under Section 13 of the

1967 Act and certain offences under the 1860 Code against the

appellants also. But we shall first deal with the appellants’ case

in relation to charges made against them under the aforesaid

provisions.

25.Section 16 prescribes punishment for committing terrorist

act and terrorist act has been defined in Section 15 of the 1967

statute. We have reproduced these provisions earlier in this

judgment.

26.In none of the materials which have been referred to by the

prosecution, the acts specified to in sub-clause (a) of Section

15(1) of the 1967 Act can be attributed to the appellants. Nor

there is any allegation against them which would attract sub-

clause (c) of Section 15(1) of the said statute. As regards the

acts specified in Section 15(1) (b) thereof, some of the literature

alleged to have been recovered from the appellants, by

themselves give hint of propagation of such activities. But there

is nothing against the appellants to prima facie establish that

36 | P a g e

they had indulged in the activities which would constitute

overawing any public functionary by means of criminal force or

the show of criminal force or attempts by the appellants to do

so. Neither there is allegation against them of causing death of

any public functionary or attempt to cause death of such

functionary. Mere holding of certain literatures through which

violent acts may be propagated would not ipso facto attract the

provisions of Section 15(1)(b) of the said Act. Thus, prima facie,

in our opinion, we cannot reasonably come to a finding that any

case against the appellants under Section 15(1) (b) of 1967 Act

can be held to be true.

27.Section 17 of the 1967 Act deals with punishment for

raising funds for terrorist acts. Here also the funds, dealing

with which has been attributed to AF, cannot be connected to

any terrorist act. In the case of Dr. Anand Teltumbde (supra)

the same account statement was referred to. In respect of such

allegations against Dr. Anand Teltumbde the Bombay High

Court came to the following finding:-

“42. Mr. Patil has vehemently argued that this

statement from the earlier letter supports receipt of

monies i.e. Rs. 90,000/- by Anand T. (Appellant) from

Surendra (accused No. 3) who was authorized to

provide funds for future programmes. On careful

reading of the earlier letter dated 02.01.2018 and the

aforementioned statement of account it is seen that

there is a fallacy in the argument of NIA. Assuming

37 | P a g e

that Anand T. is the Appellant himself and he received

Rs. 90,000/- from Surendra through Milind, firstly it

cannot be linked to the statement in the earlier letter

dated 02.01.2018 since this account statement

pertains to the year 2016 and or 2017. The document

has a heading; viz; Party fund received in last year

from C.C. Last year would invariably mean the

account of 2016 as the title of this document is

“Accounts2K17” which would mean Accounts for

2017”. That apart requiring us to presume that Anand

T. is the Appellant would require further corroboration

and evidence. prima facie it appears that, the same

has not been brought on record. This document is

unsigned and has been recovered from the

laptop one of the co-accused. Hence, at

this prima facie stage we cannot presume that

Anand T. i.e. the Appellant received Rs. 90,000/-

from Surendra Gadling as argued by NIA. We are

afraid to state that we cannot agree with NIA's

contention.”

(emphasis added)

28.Here we must point out that there is also a request made

to Surendra from an unnamed person to ask AF to manage the

financial expenses of “these cases”. The name of another Arun,

with the surname Bhelke has surfaced in Annexure “R-19” to

the NIA’s counter-affidavit in AF’s case. This is a copy of a

witness statement. In absence of any form of corroboration at

the prima facie stage it cannot be presumed that it was the

same Arun (i.e., AF) who had received money from Darsu. The

prosecution has also not produced any material to show that

actual money was transmitted. The communication dated 5

th

November 2017 (“R-5”), purportedly addressed by Surendra to

Prakash does not speak of any payment being made to AF. The

38 | P a g e

rationale applied by the Bombay High Court in the above-

quoted passage of the judgment in the case of Dr. Anand

Teltumbde (supra), which has been sustained by this Court,

ought to apply in the case of AF as well.

29.We have already observed that it is not possible for us to

form an opinion that there are reasonable grounds for believing

that the accusation against the appellant of committing or

conspiring to commit terrorist act is prima facie true. The

witness statements do not refer to any terrorist act alleged to

have been committed by the appellants. The copies of the letters

in which the appellants or any one of them have been referred,

record only third-party response or reaction of the appellants’

activities contained in communications among different

individuals. These have not been recovered from the appellants.

Hence, these communications or content thereof have weak

probative value or quality. That being the position, neither the

provisions of Section 18 nor 18B can be invoked against the

appellants, prima facie, at this stage. The association of the

appellants with the activities of the designated terrorist

organisation is sought to be established through third party

communications. Moreover, actual involvement of the appellants

in any terrorist act has not surfaced from any of these

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communications. Nor there is any credible case of conspiracy to

commit offences enumerated under chapters IV and VI of the

1967 Act. Mere participation in seminars by itself cannot

constitute an offence under the bail-restricting Sections of the

1967 Act, with which they have been charged.

30. So far as application of Section 20 of the 1967 Act is

concerned, the Bombay High Court in the case of Dr. Anand

Teltumbde (supra) construed the said provision in the following

manner:-

“52. Section 20 cannot be interpreted to mean that

merely being a member of a terrorist gang would

entail such a member for the above punishment.

What is important is the terrorist act and what is

required for the Court to see is the material before

the Court to show that such a person has been

involved in or has indulged in a terrorist act.

Terrorist act is very widely defined under Section

15. In the present case, seizure of the incriminating

material as alluded to hereinabove does not in any

manner prima facie leads to draw an inferance

that, Appellant has committed or indulged in a

‘terrorist act’ as contemplated under Section 15 of

the UAP Act.”

31.This judgment has not been interfered with by this Court

and we also affirm this interpretation given to Section 20 of the

1967 Act for testing as to who would be a member of terrorist

gang or terrorist organisation. Moreover, no material has been

demonstrated by the NIA before us that the appellants are

members of the terrorist organisation. AF’s involvement with

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IAPL as a frontal organisation of the Communist Party of India

(Maoist) is sought to be established, and that has been referred

to in the chargesheet as well. But the link between IAPL and the

CPI (Maoist) has not been clearly demonstrated through any

material. Reference to AF and VG as members of the CPI (Maoist)

appears from the statement of protected witness, but that link is

made in relation to events between the years 2002-2007, before

the organisation was included in the First Schedule to the 1967

Act. No evidence of continued membership after the party was

classified as a terrorist organisation has been brought to our

notice. Nor is there any reliable evidence to link IAPL with CPI

(Maoist) as its frontal organisation. We have already dealt with

the position of the appellants vis-à-vis terrorist acts in earlier

paragraphs of this judgment and we prima facie do not think

that Section 20 can be made applicable against the appellants at

this stage of the proceeding, on the basis of available materials.

32. “Terrorist act” as defined under Section 2(k) of the 1967 Act

carries the meaning assigned to it in Section 15. This Section

also stipulates that the expressions “terrorism” and “terrorist”

shall be construed accordingly. This implies construction of

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these two expressions in the same way as has been done in

Section 15.

“terrorist organisation” has been independently defined in

Section 2(m) to mean an organisation listed in the First Schedule

or an organisation operating under the same name as an

organisation so listed. But so far as the word “terrorist” is

concerned, in this Section also, the interpretation thereof would

be relatable to the same expression as used in Section 15. It is

one of the basic rules of statutory construction that an

expression used in different parts of a statute shall ordinarily

convey the same meaning – unless contrary intention appears

from different parts of the same enactment itself. We do not find

any such contrary intention in the 1967 Act.

33. Section 38 of the 1967 Act carries the heading or title

“offence relating to membership of a terrorist organisation”.

As we have already observed, a terrorist act would have to be

construed having regard to the meaning assigned to it in Section

15 thereof. We have given our interpretation to this provision

earlier. “terrorist organisation” [as employed in Section 2(m)], in

our opinion is not a mere nomenclature and this expression

would mean an organisation that carries on or indulges in

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terrorist acts, as defined in said Section 15. The term terrorism,

in view of the provisions of Section 2(k) of the said Act, ought to

be interpreted in tandem with what is meant by ‘terrorist Act’ in

Section 15 thereof.

34.In this context, to bring the appellants within the fold of

Section 38 of the 1967 Act, the prosecution ought to have prima

facie establish their association with intention to further the

said organisation’s terrorist activities. It is only when such

intention to further the terrorist activities is established prima

facie, appellants could be brought within the fold of the offence

relating to membership of a terrorist organisation. To bring

within the scope of Section 38 of the 1967 Act, it would not be

sufficient to demonstrate that one is an associate or someone

who professes to be associated with a terrorist organisation. But

there must be intention to further the activities of such

organisation on the part of the person implicated under such

provision. But the same line of reasoning in respect of

membership of a terrorist organisation under Section 20, ought

to apply in respect of an alleged offender implicated in Section 38

of the 1967 Act. There must be evidence of there being intention

to be involved in a terrorist act. So far as the appellants are

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concerned, at this stage there is no such evidence before us on

which we can rely.

35.In three decisions of this Court, Hitendra Vishnu Thakur

and Others -vs- State of Maharashtra and Others [(1994) 4

SCC 602], Niranjan Singh Karam Singh Punjabi, Advocate

-vs- Jitendra Bhimraj Bijjaya and Others [(1990) 4 SCC 76]

and Usmanbhai Dawoodbhai Memon and Others -vs- State of

Gujarat [(1988) 2 SCC 271], the manner in which stringent

provisions of a statute ought to be interpreted has been laid

down. In all the three authorities, observation of this Court has

been that the Court ought to carefully examine every case,

before making an assessment if the Act would apply or not.

When the statutes have stringent provisions the duty of the

Court would be more onerous. Graver the offence, greater should

be the care taken to see that the offence would fall within the

four corners of the Act. Though these judgments were delivered

while testing similar rigorous provisions under the Terrorist and

Disruptive Activities (Prevention) Act, 1987, the same principle

would apply in respect of the 1967 Act as well.

36.In the case of Zahoor Ahmad Shah Watali (supra), it has

been held that the expression “prima facie true” would mean

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that the materials/evidence collated by the investigating agency

in reference to the accusation against the accused concerned in

the chargesheet must prevail, unless overcome or disproved by

other evidence, and on the face of it, materials must show

complicity of such accused in the commission of the stated

offences. What this ratio contemplates is that on the face of it,

the accusation against the accused ought to prevail. In our

opinion, however, it would not satisfy the prima facie “test”

unless there is at least surface-analysis of probative value of the

evidence, at the stage of examining the question of granting bail

and the quality or probative value satisfies the Court of its

worth. In the case of the appellants, contents of the letters

through which the appellants are sought to be implicated are in

the nature of hearsay evidence, recovered from co-accused.

Moreover, no covert or overt terrorist act has been attributed to

the appellants in these letters, or any other material forming

part of records of these two appeals. Reference to the activities of

the accused are in the nature of ideological propagation and

allegations of recruitment. No evidence of any of the persons

who are alleged to have been recruited or have joined this

“struggle” inspired by the appellants has been brought before us.

Thus, we are unable to accept NIA’s contention that the

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appellants have committed the offence relating to support given

to a terrorist organisation.

37.The second set of materials include the witness statements.

There also no covert or overt act of terrorism has been attributed

to the appellants by the three witnesses. We have dealt with the

summary of their statements earlier in this judgment. We have

also observed earlier that mere possession of the literature, even

if the content thereof inspires or propagates violence, by itself

cannot constitute any of the offences within Chapters IV and VI

of the 1967 Act.

38.We have already analysed Sections 38 and 39 of the 1967

Act. The interpretation given by us to the phrase “intention to

further activities” of terrorist organisation could also apply in

the same way in relation to Section 39 of the same statute.

There has been no credible evidence against the appellants of

commission of any terrorist act or enter into conspiracy to do so

to invoke the provisions of Section 43D (5) of the 1967 Act.

39.As far as raising funds for a terrorist organisation is

concerned, we do not think at this stage, in absence of better

evidence, the account statement is credible enough to justify

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invoking the bail-restricting clause by attracting Section 40 of

the 1967 Act.

40.We are returning these findings as the restrictions on the

Court while examining the question of bail under the 1967 Act is

less stringent in comparison to the provisions of Section 37 of

the Narcotic Drugs and Psychotropic Substances Act, 1985. We

are not called upon, for granting a bail to an accused with

commercial quantity of contraband article under the 1985 Act,

to satisfy ourselves that there are reasonable grounds for

believing that an accused is not guilty of such offence and that

he is not likely to commit any offence while on bail. Here, we

have to satisfy ourselves that the specified offences alleged to

have been committed by the appellants cannot be held to be

prima facie true.

41.We shall now turn to the other offence under the 1967 Act,

which is under Section 13 thereof, and the 1860 Code offences.

The yardstick for justifying the appellants’ plea for bail is lighter

in this context. The appellants are almost five years in detention.

In the cases of K.A. Najeeb (supra) and Angela Harish

Sontakke (supra), delay of trial was considered to be a relevant

factor while examining the plea for bail of the accused. In the

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case of K.A. Najeeb (supra), in particular, this same provision,

that is Section 43D (5) was involved.

42.In these two proceedings, the appellants have not crossed,

as undertrials, a substantial term of the sentence that may have

been ultimately imposed against them if the prosecution could

establish the charges against them. But the fundamental

proposition of law laid down in K.A. Najeeb (supra), that a bail-

restricting clause cannot denude the jurisdiction of a

Constitutional Court in testing if continued detention in a given

case would breach the concept of liberty enshrined in Article 21

of the Constitution of India, would apply in a case where such a

bail-restricting clause is being invoked on the basis of materials

with prima facie low-probative value or quality.

43.In the case of Zahoor Ahmad Shah Watali (supra)

reference was made to the judgment of Jayendra Saraswathi

Swamigal -vs- State of Tamil Nadu [(2005) 2 SCC 13) in

which, citing two earlier decisions of this court in the cases of

State -vs- Jagjit Singh (AIR 1962 SC 253) and Gurcharan

Singh -vs- State of (UT of Delhi) [(1978) 1 SCC 118), the

factors for granting bail under normal circumstances were

discussed. It was held that the nature and seriousness of the

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offences, 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 tempered with; the larger

interest of the public or the State would be relevant factors for

granting or rejecting bail. Juxtaposing the appellants’ case

founded on Articles 14 and 21 of the Constitution of India with

the aforesaid allegations and considering the fact that almost

five years have lapsed since they were taken into custody, we are

satisfied that the appellants have made out a case for granting

bail. Allegations against them no doubt are serious, but for that

reason alone bail cannot be denied to them. While dealing with

the offences under Chapters IV and VI of the 1967 Act, we have

referred to the materials available against them at this stage.

These materials cannot justify continued detention of the

appellants, pending final outcome of the case under the others

provisions of the 1860 Code and the 1967 Act.

44.While forming our opinion over granting bail to the

appellants, we have taken into account the fact that that VG was

once earlier convicted involving offences, inter-alia, under 1967

Act and there is also a pending criminal case against him on the

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allegations of similar line of activities. Hence, we propose to

impose appropriate conditions in respect of both, which they

shall have to comply with, while on bail.

45.We accordingly set aside the impugned judgments and

direct that the appellants be released on bail in respect of the

cases(s) out of which the present appeals arise, on such terms

and conditions the Special Court may consider fit and proper, if

the appellants or any one of them are not wanted in respect of

any other case. The conditions to be imposed by the Special

Court shall include:-

(a)Vernon Gonsalves, appellant in Criminal Appeal

No.639 of 2023 and Arun Ferreira, appellant in

Criminal Appeal No.640 of 2023, upon being enlarged

on bail shall not leave the State of Maharashtra

without obtaining permission from the Trial Court.

(b)Both the appellants shall surrender their passports, if

they possess so, during the period they remain on bail

with the Investigating Officer of the NIA.

(c)Both the appellants shall inform the Investigating

Officer of the NIA, the addresses they shall reside in.

(d)Both the appellants shall use only one Mobile Phone

each, during the time they remain on bail and shall

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inform the Investigating Officer of the NIA, their

respective mobile numbers.

(e)Both the appellants shall also ensure that their

Mobile Phones remain active and charged round the

clock so that they remain constantly accessible

throughout the period they remain on bail.

(f)During this period, that is the period during which

they remain on bail, both the appellants shall keep

the location status of their mobile phones active, 24

hours a day and their phones shall be paired with

that of the Investigating Officer of the NIA to enable

him, at any given time, to identify the appellants’

exact location.

(g)Both the appellants shall report to the Station House

Officer of the Police Station within whose jurisdiction

they shall reside while on bail once a week.

46. In the event there is breach of any of these conditions, or

any of the conditions to be imposed by the Trial Court

independently, it would be open to the prosecution to seek

cancellation of the bail of each or any of the defaulting

appellants without any further reference to this Court.

Similarly, if the appellants seek to threaten or otherwise

influence any of the witnesses, whether directly or indirectly,

then also the prosecution shall be at liberty to seek cancellation

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of bail of the concerned appellant by making appropriate

application before the Trial Court.

47. The appeals stand allowed in the above terms.

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

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

(ANIRUDDHA BOSE)

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

(SUDHANSHU DHULIA)

NEW DELHI

28

TH

JULY, 2023

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ITEM NO.1501 COURT NO.6 SECTION II-A

(For Judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Criminal Appeal No. 639/2023

VERNON Appellant(s)

VERSUS

THE STATE OF MAHARASHTRA & ANR. Respondent(s)

WITH

Crl.A. No. 640/2023 (II-A)

Date : 28-07-2023 These matters were called on for pronouncement of

judgment today.

For Appellant(s) Rebecca John, Sr. Adv.

Mr. R. Basant, Sr. Adv.

Mr. Jawahar Raja, Adv.

Chinmay Kanojia, Adv.

Mr. Archit Krishna, Adv.

Mr. N. Sai Vinod, AOR

Mr. Vishnu P, Adv.

Ms. Varsha Sharma, Adv.

For Respondent(s) Mr. Anand Dilip Landge, Adv.

Mr. Siddharth Dharmadhikari, Adv.

Mr. Aaditya Aniruddha Pande, AOR

Mr. Bharat Bagla, Adv.

Mr. Sourav Singh, Adv.

Mr. Aditya Krishna, Adv.

Mr. Tushar Mehta, Solicitor General

Mr. K M Nataraj, A.S.G.

Mr. Sharath Nambiar, Adv.

Mr. Nakul Chnegappa K.K., Adv.

Mr. Vatsal Joshi, Adv.

Ms. Indra Bhakar, Adv.

Mr. Vinayak Sharma, Adv.

Mr. Anuj Srinivas Udupa, Adv.

Mr. Chitransh Sharma, Adv.

Mr. Kanu Agarwal, Adv.

Ms. Swati Ghildiyal, Adv.

Ms. Deepabali Dutta, Adv.

Ms. Sairica S Raju, Adv.

Mr. Sabarish Subramanyam, Adv.

Mr. Arvind Kumar Sharma, AOR

Hon’ble Mr. Justice Aniruddha Bose has

pronounced the Judgment of the Bench comprising

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His Lordship and Hon’ble Mr. Justice Sudhanshu

Dhulia.

The appeals stand allowed; the impugned

judgments are set aside and direct that the

appellants be released on bail in respect of the

cases(s) out of which the present appeals arise

in terms of the signed Reportable Judgment.

Pending application(s), if any, shall

stand disposed of.

(SNEHA DAS) (VIDYA NEGI)

SENIOR PERSONAL ASSISTANT ASSISTANT REGISTRAR

(Signed Reportable Judgment is placed on the file)

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