THWAHA FASAL versus UNION OF INDIA

[2021] 8 S.C.R. 797

THWAHA FASAL

UNION OF INDIA

(Criminal Appeal No. 1302 of 2021)

OCTOBER 28, 2021

[AJAY RASTOGI AND ABHAY S. OKA, JJ.]

Unlawful Activities (Prevention) Act, 1967: Factors forconsideration while granting bail – While deciding bail petitionfiled by an accused against whom offences under Chapters IV andVI of the 1967 Act have been alleged, the Court has to considerwhether there are reasonable grounds for believing that theaccusation against the accused is prima facie true – If the Court issatisfied after examining the material on record that there are noreasonable grounds for believing that the accusation against theaccused is prima facie true, then the accused is entitled to bail –Thus, the scope of inquiry is to decide whether prima facie materialis available against the accused of commission of the offencesalleged under Chapters IV and VI – The grounds for believing thatthe accusation against the accused is prima facie true must bereasonable grounds – However, the Court while examining the issueof prima facie case as required by sub-section (5) of s.43D is notexpected to hold mini trial – The Court is not supposed to examinethe merits and demerits of the evidence – If charge sheet is alreadyfiled, the Court has to examine the material forming part of chargesheet for deciding the issue whether there are reasonable groundsfor believing that the accusation against such person is primafacie true – While doing so, the Court has to take the material in thecharge sheet as it is.

Unlawful Activities (Prevention) Act, 1967: Grant of bail bySpecial court for NIA cases to accused no. 1 and 2 – Challengeagainst – FIR registered against accused 1 to 3 for offencespunishable under ss. 20, 38 and 39 of unlawful Activities(Prevention) Act, 1967 – Investigation was transferred to NationalInvestigation Agency (NIA) established under the NIA Act – Accusedno. 3 was absconding – Charge-sheet filed by NIA against accusedno. 1 and 2 under ss. 38 and 39 of 1967 Act as well as under s.

A120-B IPC – Special Court allowed bail application of accused no.1 and 2 – On State appeal, High Court set aside bail granted toaccused no. 2 while upholding bail granted to accused no. 1 –Hence instant appeal by accused no. 2 as well as by State – Held:Mere association with terrorist organisation is not sufficient toattract s.38 and mere support given to terrorist organisation isBnot sufficient to attract s.39 – The association and the support haveto be with intention of furthering the activities of terroristorganisation – In given case, such intention can be inferred fromthe overt acts or acts of active participation of the accused in theactivities of terrorist organization which are borne out from theCmaterials forming part of charge sheet – At formative young age,the accused nos.1 and 2 might have been fascinated by what ispropagated by CPI (Maoist) – Therefore, they may be in possessionof various documents/books concerning CPI (Maoist) in soft orhard form – Apart from the allegation that certain photographsshowing that the accused participated in protest/gatheringDorganised by an organisation allegedly linked with CPI (Maoist),prima facie there is no material in the charge sheet to project theiractive participation in the activities of CPI (Maoist) – Order ofSpecial Court granting bail to accused no.2 is restored.

Unlawful Activities (Prevention) Act, 1967: s.43D – ForEdeciding the issue of prima facie case contemplated by sub-section(5) of s.43D, the case against the both accused only under ss.38and 39 is required to be considered – In view of the absence ofsanction and the fact that NIA did not even seek sanction for theoffence punishable under s.20, prima facie case of the accusedFbeing involved in the said offence is not made out at this stage –Sub-section (5) of s.43D will not apply to s.13, as s.13 has beenincorporated in Chapter III of the 1967 Act.Unlawful Activities (Prevention) Act, 1967: s.43D – Therestrictions imposed by sub-section (5) of s.43D per se do not preventGa Constitutional Court from granting bail on the ground of violationof Part III of the Constitution.

Disposing of the appeals, the Court

HELD: 1.1 Clause (m) of Section 2 of the Unlawful Activities(Prevention) Act, 1967 defines “terrorist organisation”. It isH

defined as an organisation listed in the First Schedule. CPI(Maoist) has been listed at Item no.34 in the First Schedule.Chapters III onwards of the 1967 Act incorporate variousoffences. Chapter IV has the title “punishment for terrorist act”.Clause (k) of Section 2 provides that “terrorist act” has themeaning assigned to it under Section 15. In this case, there is noallegation against the accused nos.1 and 2 of committing anyterrorists act. The offence punishable under Section 20 is attractedwhen the accused is member of terrorist gang or terroristorganisation which is involved in terrorist act. Section 20 is notattracted unless the terrorist gang or terrorist organisation ofwhich the accused is member is involved in terrorist act asdefined by Section 15. [Paras 8, 10][815-C-E; 816-G; 818-C-D]

1.2 On plain reading of Section 38, the offence punishabletherein will be attracted if the accused associates himself orprofesses to associate himself with terrorist organisationincluded in First Schedule with intention to further its activities.In such case, he commits an offence relating to membership ofa terrorist organisation covered by Section 38. The personcommitting an offence under Section 38 may be member of aterrorist organization or he may not be member. If the accusedis member of terrorist organisation which indulges in terroristact covered by Section 15, stringent offence under Section 20may be attracted. If the accused is associated with terroristorganisation, the offence punishable under Section 38 relating tomembership of terrorist organisation is attracted only if heassociates with terrorist organisation or professes to beassociated with terrorist organisation with intention to furtherits activities. The association must be with intention to furtherthe activities of terrorist organisation. Clause (b) of proviso tosub-section (1) of Section 38 provides that if person chargedwith the offence under sub-section (1) of Section 38 proves thathe has not taken part in the activities of the organisation duringthe period in which the name of the organisation is included inthe First Schedule, the offence relating to membership of terroristorganisation under sub-section (1) of Section 38 will not beattracted. [Para 11][818-E-H; 819-A]

A1.3 Section 39 deals with the offences relating to supportgiven to terrorist organisation. It covers three kinds of offencesunder clauses (a), (b) and (c) of sub-section (1) of Section 39. Theoffences punishable under clauses (a), (b) and (c) of sub-section(1) of Section 39 are attracted only when the actions incorporatedtherein are done with intention to further the activities of aBterrorist organisation. The activities must have some connectionwith terrorist act. Thus, the offence under sub-section (1) ofSection 38 of associating or professing to be associated with theterrorist organisation and the offence relating to supporting aterrorist organisation under Section 39 will not be attracted unlessCthe acts specified in both the Sections are done with intention tofurther the activities of terrorist organisation. To that extent,the requirement of mens rea is involved. Thus, mere associationwith terrorist organisation as member or otherwise will notbe sufficient to attract the offence under Section 38 unless theassociation is with intention to further its activities. Even if anDaccused allegedly supports terrorist organisation by committingacts referred in clauses (a) to (c) of sub-section (1) of Section 39,he cannot be held guilty of the offence punishable under Section39 if it is not established that the acts of support are done withintention to further the activities of terrorist organisation. [ParasE12, 13][819-B-F]

2.1 The accused no.2 has been charged with the offencepunishable under Section 13. It is essentially an offence ofcommitting unlawful activities as defined under Clause (o) ofSection 2. The said offence has been alleged on the ground thatFtwo banners were found in the house of the accused no.2 whichaccording to the prosecution invite public support to freedommovement of Jammu and Kashmir. Section 13 does not form apart of Chapter IV or VI. The stringent conditions for grant ofbail in sub-section (5) of Section 43D will apply only to the offencespunishable only under Chapters IV and VI of the 1967 Act. TheGoffence punishable under Section 13 being part of Chapter IIIwill not be covered by sub-section (5) of Section 43D andtherefore, it will be governed by the normal provisions for grantof bail under the Code of Criminal Procedure, 1973. The proviso

imposes embargo on grant of bail to the accused against whomany of the offences under Chapter IV and VI have been alleged.The embargo will apply when after perusing charge sheet, theCourt is of the opinion that there are reasonable grounds forbelieving that the accusation against such person is prima facietrue. Thus, if after perusing the charge sheet, if the Court is unableto draw such prima facie conclusion, the embargo created bythe proviso will not apply. [Paras 15, 17][819-H; 820-D-F;821-B-D]

National Investigation Agency v. Zahoor Ahmad ShahWatali (2019) 5 SCC 1 : [2019] 5 SCR 1060 – reliedon.

2.2 Under sub-section (1) of Section 45 of the 1967 Act,the Court is not empowered to take cognizance of any offenceunder Chapters IV and VI without previous sanction of theCentral Government. Procedure for obtaining sanction has beenlaid down in sub-section (2) of Section 45. Paragraphs 2 and 3 ofthe order of sanction show that though the offence was registeredunder Sections 20, 38 and 39 of the 1967 Act, by letter dated13[th] April 2020, NIA did not seek sanction for prosecuting any ofthe three accused for the offence punishable under Section 20.Sanction was sought to prosecute the accused nos.1 and 2 for theoffences punishable under Sections 38 and 39. In addition, asanction was sought to prosecute the accused no.2 under Section13. Paragraph 4 of the order refers to the authority appointed bythe Central Government under sub-section (2) of Section 45consisting of retired Judge of High Court and retired LawSecretary, as well as the report submitted by the said authority.Paragraph 6 of the said order records prima facie satisfaction ofthe Central Government that case is made out against theaccused under the provisions of the Act of 1967, as mentioned inletter dated 13[th] April 2020. Thus, sanction under sub-section(1) of Section 45 has not been accorded for prosecuting theaccused for the offence punishable under Section 20 of the Act of1967 and, therefore, the Special Court under NIA Act cannottake cognizance of the offence punishable under Section 20.Therefore, for deciding the issue of prima facie case contemplatedby sub-section (5) of Section 43D, the case against the both

Aaccused only under Sections 38 and 39 is required to beconsidered. In view of the absence of sanction and the fact thatNIA did not even seek sanction for the offence punishable underSection 20, prima facie case of the accused being involvedin the said offence is not made out at this stage. [Paras 21, 22][824-B-H; 825-A-B]B

2.3 The restrictions imposed by sub-section (5) of Section43D per se do not prevent Constitutional Court from grantingbail on the ground of violation of Part III of the Constitution. Thematerial forming part of charge sheet is in the form of books andother printed material found in the custody of the accused nos.1Cand 2 and the material found on the digital devices seized fromthe accused no.2. The judge of the Special Court in his detailedjudgment has categorised the seized material into 12 categoriesin paragraph 59. As regards the accused no.1, certain documentswere found in the shoulder bag carried by him when he wasDapprehended. FSL report shows that the cell phone of the accusedno.1 had video clip with the title “Kashmir bleeding”, as wellas portraits of various communist revolutionary leaders, like CheGuvera and Mao Tse Tung, as also portrait of Geelani, Kashmirileader. Copies of certain posters were also found. Pdf filesextracted showed that it contained material regarding abrogationEof Article 370 of the Constitution and various other items. Thephotographs also showed that the accused no.1 attended protestgathering conducted in October 2019 by Kurdistan SolidarityNetwork. As regards the accused no.2, on his devices, images ofCPI (Maoist) flag, files relating to constitution of centralFcommittee of CPI (Maoist), files relating to CPI (Maoist) centralcommittee programme, image of hanging Prime Minister, variousnewspaper cuttings relating to maoist incidents were found. Abook was also seized relating to encounter with PLGA (Maoist)at Agali. The Special Judge noted that the face book account, e-mail accounts and call details of the accused do not contain anyGincriminating evidence. High Court has not recorded that anyincriminating material was found therein. [Paras 23, 25, 28, 29,30][825-C; 827-E-F; 830-E-H]

2.4 Another piece of evidence against the accused no.2 isthat during the search of his residence, he shouted slogans, suchH

as inquilab zindabad and maoisim zindabad. He also shoutedslogans containing greetings to the brave martyrs who died in anarmed encounter between Maoist members and police. Anothermaterial forming part of the charge sheet is that abscondingaccused no.3 visited the place where the accused no.1 was stayingas paying guest. Material was found regarding collection ofmembership fees and other amounts by the accused for the benefitof the said organization. Taking the charge sheet as correct, atthe highest, it can be said that the material prima facie establishesassociation of the accused with terrorist organisation CPI(Maoist) and their support to the organisation. Thus, as far asthe accused no.1 is concerned, it can be said he was found inpossession of soft and hard copies of various materials concerningCPI (Maoist). He was seen present in gathering which was apart of the protest arranged by an organisation which is allegedlyhaving link with CPI (Maoist). As regards the accused no.2,minutes of the meeting of various committees of CPI (Maoist)were found. Certain banners/posters were found in the custodyof the accused no.2 for which the offence under Section 13 hasbeen applied of indulging in unlawful activities. [Paras 31, 32,33][831-A-E]

2.5 Mere association with terrorist organisation is notsufficient to attract Section 38 and mere support given to aterrorist organisation is not sufficient to attract Section 39. Theassociation and the support have to be with intention of furtheringthe activities of terrorist organisation. In given case, suchintention can be inferred from the overt acts or acts of activeparticipation of the accused in the activities of terroristorganization which are borne out from the materials forming apart of charge sheet. At formative young age, the accused nos.1and 2 might have been fascinated by what is propagated by CPI(Maoist). Therefore, they may be in possession of variousdocuments/books concerning CPI (Maoist) in soft or hard form.Apart from the allegation that certain photographs showing thatthe accused participated in protest/gathering organised by anorganisation allegedly linked with CPI (Maoist), prima facie thereis no material in the charge sheet to project active participationof the accused nos.1 and 2 in the activities of CPI (Maoist) from

Awhich even an inference can be drawn that there was an intentionon their part of furthering the activities or terrorist acts of theterrorist organisation. An allegation is made that they were foundin the company of the accused no.3 on 30[th] November, 2019. Thatitself may not be sufficient to infer the presence of intention. Butthat is not sufficient at this stage to draw an inference of presenceBof intention on their part which is an ingredient of Sections 38and 39 of the 1967 Act. Apart from the fact that overt acts ontheir part for showing the presence of the required intention orstate of mind are not borne out from the charge sheet, primafacie, their constant association or support of the organizationCfor long period of time is not borne out from the charge sheet.[Para 34][831-F-H; 832-A-D]2.6 The judge of the Special Court after examining the entirematerials on record of the charge sheet noted that there is noprima facie material to show intention on the part of both theDaccused to further the activities of the terrorist organisation.Perusal of the impugned judgment of the High Court shows thatit has considered various aspects, such as the accused werecarrying their mobile phones when they were apprehended on30[th] November 2019 and that the documents which werepossessed by the respondents were not out of curiosity or forEintellectual pursuits. The High Court observed that the SpecialJudge has oversimplified the matter. However, the High Courtdid not notice that by taking the material collected during theinvestigation which forms part of the charge sheet as it is, theSpecial Court had recorded prima facie finding regarding theFabsence of any material to show intention on the part of the accusedto further the activities of CPI (Maoist). The High Court has notrecorded prima facie finding on this aspect. By applying the lawlaid down in the case of Watali, there were no reasonable groundsfor believing that the accusations against the accused nos.1 and2 of commission of offences under Sections 38 and 39 were primaGfacie true. [Para 36][832-E-H; 833-A]

3.1 There are other relevant factors which needconsideration. The Special Court while enlarging the accusednos.1 and 2 on bail had imposed most stringent conditions, suchas furnishing of bail bonds of Rs. One lakh with two sureties eachHfor the like amount with further condition that one of the sureties

shall be one of the parents of the accused and the other surety,shall be relative of the accused. There was condition imposedof marking attendance on every first Saturday of every month atlocal police station and also of not associating in any manner orsupporting in any manner activities of CPI (Maoist) and all itsformations. The accused nos.1 and 2 were directed to not leaveterritorial limits of the State of Kerala without permission of theSpecial Court. Moreover, SHO of the concerned police stationwas directed to monitor the activities of both the accused. It isnot the case of the prosecution that any conditions were breachedby any of the accused after they were enlarged on bail.[Para 37][833-A-D]

3.2 As held in the case of K.A. Najeeb, the stringentrestrictions imposed by sub-section(5) of Section 43D, do notnegate the power of Constitutional Court to grant bail keeping inmind violation of Part III of the Constitution. It is not disputedthat the accused no.1 is taking treatment for psychologicaldisorder. The accused no.1 is student of law. Moreover, 92witnesses have been cited by the prosecution. Even assumingthat some of the witnesses may be dropped at the time of trial,there is no possibility of the trial being concluded in reasonabletime as even charges have not been framed. There is no minimumpunishment prescribed for the offences under Sections 38 and39 of the 1967 Act and the punishment can extend to 10 years oronly fine or with both. Hence, depending upon the evidence onrecord and after consideration of relevant factors, the accusedcan be let off even on fine. As regards the offence under Section13 alleged against accused no.2, the maximum punishment is ofimprisonment of 5 years or with fine or with both. The accusedno.2 has been in custody for more than 570 days. [Para 38][833-D-G]

Union of India v. K.A. Najeeb (2021) 3 SCC 713 –relied on

3.3 It is true that without recording satisfaction ascontemplated by sub-section (5) of Section 43D, the ordergranting bail to the accused no.1 could not have been confirmedby the High Court. However, taking the materials forming part

Aof the charge sheet as it is, the accusation against both the accusedof the commission of offences punishable under Sections 38 and39 does not appear to be prima facie true. [Para 39][833-H;834-A-B]

People’s Union for Civil Liberties and Anr. v. Union ofBIndia (2004) 9 SCC 580 : [2003] 6 Suppl. SCR 860;Arup Bhuyan v. State of Assam (2011) 3 SCC 377 :[2011] 2 SCR 506; State of Gujarat v. GirishRadhakrishnan Varde (2014) 3 SCC 659 : [2013] 12SCR 930 ; Mahipal v. Rajesh Kumar alias Polia andAnr. (2020) 2 SCC 118; Ranjitsing BrahmajeetsingCSharma v. State of Maharashtra (2005) 5 SCC 294 :[2005] 3 SCR 345 – referred to

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1302 of 2021

FFrom the Judgment and Order dated 04.01.2021 of the High Courtof Kerala at Ernakulam in Criminal Appeal No.705 of 2020.

With

Criminal appeal no.1303 of 2021

GS. V. Raju, ASG, Jayanth Muthuraj, R. Basant, Sr. Advs., John S.Ralph, Judy James, R. Anas Muhammed Shamnad, Anoop C. C., T. K.Babu, Boby Thomas, Ralph R. John, Rahul Mishra, Ms. Sairica Raju,Annam Venkatesh, B. V. Balaram Das, Raghenth Basant, ManuKrishnan, Arjun Singh Bhati, Ms. Roopali Lakhotia, Ms. Urja Pandey,Advs. for the appearing parties.H

The Judgment of the Court was delivered by

ABHAY S. OKA, J.

Leave granted.

1. These two appeals take exception to the Judgment and Orderpassed by Division Bench of Kerala High Court in the appeals preferredby the Union of India under sub-section (4) of Section 21 of the NationalInvestigation Agency Act, 2008 (for short “the NIA Act”). The appealsbefore the High Court arose out of the Order dated 9[th] September 2020,passed by the learned Judge of the Special Court appointed to conductthe trial of National Investigation Agency cases at Ernakulam in Kerala.By the said Order, the learned Judge of the Special Court For NIACases, granted bail to the accused no.1 Allen Shuaib and the accusedno.2 Thwaha Fasal.

2. First Information Report was registered against the accusednos.1,2 and 3 for the offences punishable under Sections 20, 38 and 39of Unlawful Activities (Prevention) Act, 1967 (for short “the 1967 Act”).The Offence was registered by Pantheerankavu Police Station in Kerala.Later on, the investigation of the case was transferred to NationalInvestigation Agency (for short “NIA”) established under the NIA Act.

3. The accused no.3 is absconding. On completion of investigation,a charge sheet was filed by NIA against the accused nos.1 and 2.Offences punishable under Sections 38 and 39 of the 1967 Act as wellas under Section 120-B of the Indian Penal Code (for short “IPC”)were alleged against the accused no.1. The same offences were allegedagainst the accused no.2. In addition, an offence punishable under Section13 of the 1967 Act was also alleged against the accused no. 2. Beforefiling of charge sheets, bail applications moved by the accused nos.1 and2 were dismissed and the order of dismissal was confirmed by HighCourt in appeals preferred under sub-section (4) of Section 121 of theNIA Act. After investigation was transferred to NIA, the accused no.2applied for bail which was dismissed by the learned Judge of the SpecialCourt. After filing of charge sheet, fresh applications were filed by theaccused which were allowed by the learned Judge of the Special Courtby the Order dated 9[th ]September 2020. By the impugned Judgment andorder, the appeal preferred by the Union of India against the order of theSpecial Court was partly allowed. The High Court proceeded to setaside the order granting bail to the accused no. 2. However, the order ofthe Special Court granting bail to the accused no.1 was confirmed by

Athe High Court. The appeal arising out of Special Leave Petition(Crl.)No. 2415 of 2021 has been preferred by the accused no. 2 and theappeal arising out of Special Leave Petition (Crl.) No. 5931 of 2021 hasbeen preferred by the Union of India for challenging that part of theimpugned Judgment and Order by which the order of the Special Courtgranting bail to the accused no.1 has been confirmed. The accused nos.1Band 2 were apprehended on 1[st] November 2019. The accused no.1 whowas born on 27[nd] August 1999 was 20 years old at that time and theaccused no.2 who was born on 5[th] August 1995 was 24 years old at thattime. As noted by the Special Court, the accused no.1 was law studentat that time and the accused no.2, while working and earning his livelihood,Cwas pursuing his studies in Journalism through Distant EducationProgramme.

4. On 1[st] November 2019, the complainant who is the Sub-Inspector of Police attached to Pantheerankavu Police Station inKozhikode city in Kerala found that the accused nos.1 to 3 were standingDin suspicious circumstances in front of Medicare Laboratory in Kozhikodecity. After seeing the police vehicle, the accused no. 3 ran away. However,the accused nos.1 and 2 were apprehended. The accused no.1 wascarrying shoulder bag and the accused no.2 was carrying red plasticfile. Nine items were seized from the shoulder bag of the accused no.1.From the red plastic file of the accused no.2, two items were seized.EThe First Information Report was registered on the same day underSections 20, 38 and 39 of the 1967 Act alleging that the accused nos. 1and 2 were the members of the Communist Party of India (Maoist) [forshort “CPI (Maoist)”] which is terrorist organisation within the meaningof Clause (m) of Section 2 of the 1967 Act which is listed at Item No.34Fin the First Schedule to the 1967 Act. By the order dated 18[th] April 2020,the Government of India granted sanction in exercise of powers underSection 45 of the 1967 Act to prosecute the accused no.1 for offencespunishable under Sections 38 and 39 of the 1967 Act. Under the sameorder, sanction to prosecute the accused no.2 for the offencespunishable under Sections 13, 38 and 39 of the 1967 Act was granted.GAs can be seen from the order dated 18[th] April 2020, NIA hadrecommended for grant of sanction under the aforesaid Sections. It ispointed out across the Bar by Shri S.V. Raju, the learned AdditionalSolicitor General of India (ASG) that the case is fixed for framing ofcharge. However, it was also pointed out across the Bar that reportHfrom the Forensic Science Laboratory is not yet received.

SUBMISSIONS OF THE LEARNED COUNSEL

5. Shri Jayanth Muthuraj, the learned Senior Counsel representing

accused no.2 in support of the appeal preferred by the said accusedmade detailed submissions which can be summarised as under:

(a)Though FIR was registered against both the accused forthe offences punishable under Sections 20, 38 and 39 ofthe 1967 Act, while filing the charge sheet, the offencepunishable under Section 20 has not been invoked. Hepointed out that Section 20 is applicable to an accused whois member of terrorist gang or terrorist organisationwhich is involved in terrorist act. He submitted that thoughthere is an allegation made in the FIR that the accusednos.1 and 2 are members of CPI (Maoist), even sanctionto prosecute the accused under Section 20 has not beengranted in accordance with Section 45 of the 1967 Act. Hesubmitted that the maximum punishment for the offenceunder Section 20 is of imprisonment for life and fine.However, for the offences under Sections 38 and 39, themaximum punishment is of 10 years or with fine or withboth. He submitted that Section 13 of the 1967 Act hasbeen applied to the accused no.2 for which the maximumpunishment is of 5 years or fine or with both.(b)He pointed out that the stringent provisions for grant of bailprovided in sub-section (5) of Section 43D of the 1967 Actare applicable only for the persons accused of offencespunishable under Chapters IV and VI of the 1967 Act. Hesubmitted that Section 13 is part of Chapter III andtherefore, only for the offences punishable under Sections38 and 39 of the1967 Act, stringent provisions of sub-section(5) of Section 43D will have to be applied.

(c)He invited our attention to the fact that on 1[st] November2019 in the red file carried by the accused no.2, book onCaste Issues in India and book styled as OrganisationalDemocracy, Disagreement with Lenin were found. Hepointed out that from the house search of the accused no.2,18 items were found most of which are documents. Hepointed out that two red colour banners were seized fromhis house calling upon people to support the freedom

struggle of Jammu and Kashmir. He pointed that one laptop,mobile phone with sim, two additional sim cards, threememory cards and two pen drives were seized from thehouse of the accused no. 2.

(d)He submitted that even assuming that the accused no. 2Bwas found in possession of various materials concerningthe activities and meetings of the CPI (Maoist), Sections38 and 39 are not attracted. He submitted that the offenceunder sub-section (1) of Section 38 can be made out if aperson associates himself with terrorist organisation withintention to further its activities. He submitted that similarly,Can offence under Section 39 is attracted only when the actsincorporated in Section 39 are committed with intention tofurther the activity of terrorist organisation. He submittedthat the charge sheet does not disclose any material to showthat there was such an intention on the part of the accusedDno.2.

(e)The learned Judge of the Special Court has taken intoconsideration each and every material incorporated againstthe accused in the charge sheet and has concluded that thecharge sheet does not make out prima facie case of theEaccused having intention to encourage, further, promote orfacilitate the commission of terrorist activities. He submittedthat there are no reasons assigned by the High Court todisturb the said prima facie finding. He relied upon adecision of this Court in the case of People’s Union forCivil Liberties and Anr. v. Union of India[1]. He submittedFthat the challenge in the said case before this Court was tothe constitutional validity of various provisions of thePrevention of Terrorism Act, 2002 (for short “POTA”). Hesubmitted that this Court accepted the argument of thelearned Attorney General of India that Sections 20, 21 andG22 would not cover any activities which do not have anelement of intention of furthering or encouraging terroristactivity or facilitating its commission. He submitted that itwas held that the said three provisions do not exclude mensrea. He also relied upon another decision of this Court in

H1 (2004) 9 SCC 580

the case of Arup Bhuyan v. State of Assam[2]. He submittedthe offences under Sections 38 and 39 are not attractedunless it is shown that the accused nos. 1 and 2 were activemembers of CPI (Maoist). He also pointed out thatsubsequently in the year 2015, the said decision has beenreferred to larger Bench by Coordinate Bench.

(f)The learned Senior Counsel relied upon decision of thisCourt in the case of Union of India v. K.A. Najeeb[3].Relying upon the said decision, he submitted that thestatutory embargo imposed by sub-section (5) of Section43D of the 1967 Act does not oust the jurisdiction of aCConstitutional Court to grant bail on the ground of violationof rights conferred by Part III of the Constitution of India.He submitted that in the statutes like the Narcotics Drugsand Psychotropic Substances Act, 1985 (for short “theNDPS Act”), while granting bail, there is requirement ofthe Court recording prima facie satisfaction that theDaccused is not guiltyof the offence alleged against him andthat he is unlikely to commit another offence while on bail.But there is no such pre-condition in the 1967 Act. Hesubmitted that under sub-section (5) of Section 43D, beforegranting bail, the Court is required to record satisfactionEthat there are reasonable grounds for believing that theaccusation against the accused is prima facie not madeout.

(g)He submitted that even going by the tests laid down by thisCourt in the case of National Investigation Agency v.Zahoor Ahmad Shah Watali[4], the accused no.2 is entitledto bail. He submitted that stringent conditions were imposedby the Special Court while enlarging the accused no.2 onbail.

(h)He submitted that immediately after cancellation of bailunder the impugned Judgment and Order, the accused no.2surrendered. He pointed out that the accused no.2 is incustody for more than 572 days. He pointed out that 92

2 (2011) 3 SCC 377

3 (2021) 3 SCC 713

4 (2019) 5 SCC 1

Awitnesses have been cited in the charge sheet and evencharge has not been framed by the Special Court. Hesubmitted that the punishment imposed under Sections 38and 39 of the 1967 Act can extend to ten years or fine orwith both. He submitted that considering the fact that chargeis not yet framed and total 92 witnesses are to be examined,Bthe trial is not likely to be completed in near future. Hesubmitted that as FSL report is yet to be received, charge isnot likely to be framed immediately.

6. Shri S.V. Raju, the learned Additional Solicitor General madethe following submissions for opposing the appeal preferred by theCaccused no.2 and in support of the appeal preferred by the Union ofIndia:

(a)He submitted that Item No. 34 of Schedule 1 of the 1967Act incorporates CPI (Maoist) in the list of terroristorganisations within the meaning of Clause (m) of SectionD2 of the 1967 Act. He submitted that the said organisationis terrorist organisation as distinguished from an unlawfulassociation contemplated by Clause (p) of Section 3 of the1967 Act.

(b)He pointed out from the counter filed by NIA and inEparticular Clauses (i) to (xvi) of paragraph 30 that whenthe house of the accused no.2 was being searched, heshouted various slogans such as Inquilab Zindabad, MaoismZindabad, Naxalbari Zindabad etc. He pointed out that twored colour handmade cloth banners of CPI (Maoist) wereFrecovered from his residence calling upon people to supportthe struggle for independence of Kashmir. He submittedthat material used for preparation of banners was alsorecovered. He submitted that the contents of the bannersamount to inciting the rebellion and public disorder.

G(c)He pointed out that during the house search of the accusedno.2 not only various materials published by CPI (Maoist)were found but notebook was found containing minutesof the meeting held on 15[th] September 2019. He pointedout that the said notebook was found in locked room insidehis house. He pointed out that soft copies of number ofHvolumes of news bulletin of CPI (Maoist) were recovered

from the digital device used by the accused no.2. Hesubmitted that the digital device also contains the partyprogramme issued by the Central Committee of CPI(Maoist) and the road map of the party. He submitted thatthe digital device also contains material about the politicaland military strategy of the CPI (Maoist).

(d)He submitted that material found from the custody of boththe accused and the material seized from their housesindicates that both of them and especially the accused no.2are intimately connected with activities of CPI (Maoist).He submitted that the very fact that the minutes of the secretmeetings were found in the custody of the accused no.2shows that he is actively involved in the activities of theterrorist organisation. He submitted that considering thematerial forming part of the charge sheet, intention on thepart of both the accused to further the activities of theterrorist organisation can be inferred.

(e)He submitted that person who is member of terroristorganisation can be prosecuted under Section 38 of the 1967Act. He submitted that though Section 20 may not havebeen applied, in view of the decision of this Court in thecase of the State of Gujarat v. Girish RadhakrishnanVarde[5], the Special Court can disagree with the police reportand issue process for an offence which is not made out inthe charge sheet. He submitted that even furtherinvestigation can be ordered by the Court.

(f)He submitted that the prosecution can subsequently obtainthe sanction to prosecute for the offence punishable underSection 20 of the 1967 Act as well. He submitted that apartfrom the fact that the decision in the case of ArupBhuyan(supra) has been referred to larger Bench, theissue involved in the said case was in connection withTerrorist and Disruptive Activities (Prevention) Act, 1987(for short “TADA”). He submitted that the case of PUCL(supra), the challenge was to various provisions in POTAand not the 1967 Act.

A(g)He submitted that the High Court while confirming the ordergranting bail to the accused no.1 has completely disregardedsub-section (5) of Section 43D of the 1967 Act. Hesubmitted that the bail granted to the accused No.1 hasbeen confirmed by the High Court by ignoring sub-section5 of Section 43D.

(h)He submitted that the Special Court has completely ignoredthe law laid down in the case of Watali (supra) and asrightly found by the High Court, the Special Court hasconducted mini trial which is not permissible.

C(i)He submitted that the accused nos.1 and 2 who are theactive members of the terrorist organisation are trying tocreate disharmony with the object of overthrowing thedemocratically elected government. He submitted thatthough the personal liberty is sacrosanct, the individual rightsshould subserve the national interest. He submitted that theDprima facie findings recorded by the High Court onconsideration of the entire material against the accusedNos.1 and 2 disentitle both of them to grant of bail.

7. The learned Senior Counsel Shri R. Basant appearing for theaccused no.1 opposed the submissions made by learned ASG in theEappeal preferred by Union of India. His submissions can be brieflysummarised as under: -

(a) He submitted that NIA never sought sanction to prosecute theaccused Nos.1 and 2 for the offence punishable under Section 20 of the1967 Act. He submitted that in view of Section 45, the Special CourtFcannot take cognisance of the offence under Section 20 without previoussanction of the Central Government.

(b) He submitted that the finding recorded by the High Court inthe impugned Judgment that the accused no.1 was taking treatment forcertain psychiatric issues is not disputed by the prosecution. He invitedGour attention to what is held by this Court in the case of PUCL (supra)while upholding the validity of Sections 20, 21 and 22 of POTA. Herelied upon paragraph 46 which records the submission of the Governmentof India that Sections 20, 21 and 22 of POTA can be applied only to aperson who acted with intent of furthering or encouraging terroristactivities or facilitating its commission. He submitted that while repealingH

POTA, amendments were made to the provisions of the 1967 Act byincluding intention to further activities of terrorist organisations in Sections38 and 39. Relying upon the decision of this Court in the case of Mahipalv. Rajesh Kumar alias Polia and Anr[6], he submitted that whileexercising the power of appeal under sub-section (4) of Section 21 ofNIA Act, the Court cannot interfere with the order granting bail unlessthe order suffers from non-application of mind or is not borne out from aprima facie view of the evidence on record. He submitted that there isno possibility of Special Court framing charge as report of FSL is notyet received.

CONSIDERATION OF SUBMISSIONS

8. Clause (m) of Section 2 of the 1967 Act defines “terroristorganisation”. It is defined as an organisation listed in the First Schedule.CPI (Maoist) has been listed at Item no.34 in the First Schedule. ChaptersIII onwards of the 1967 Act incorporate various offences. Chapter IIIdeals with unlawful associations and unlawful activities with which weare not concerned. Chapter IV has the title “punishment for terroristact”. Section 16 in Chapter IV prescribes the punishment for terroristact. Clause (k) of Section 2 provides that “terrorist act” has the meaningassigned to it under Section 15 which reads thus:

“15. Terrorist act.— [(1)] Whoever does any act with intent tothreaten or likely to threaten the unity, integrity, security [economicsecurity] or sovereignty of India or with intent to strike terror orlikely to strike terror in the people or any section of the people inIndia or in any foreign country,—

(a) by using bombs, dynamite or other explosive substances orinflammable substances or firearms or other lethal weapons orpoisonous or noxious gases or other chemicals or by any othersubstances (whether biological radioactive, nuclear or otherwise)of hazardous nature or by any other means of whatever natureto 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 ofthe community in India or in any foreign country; or

6 (2020) 2 SCC 118,

816SUPREME COURT REPORTS

[(iiia) damage to, the monetary stability of India by way ofproduction or smuggling or circulation of high quality counterfeitIndian paper currency, coin or of any other material; or]

(iv) damage or destruction of any property in India or in aforeign country used or intended to be used for the defence ofBIndia or in connection with any other purposes of theGovernment of India, any State Government or any of their

agencies; or

(b) overawes by means of criminal force or the show of criminalforce or attempts to do so or causes death of any public functionaryor attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill orinjure such person or does any other act in order to compel theGovernment of India, any State Government or the Governmentof foreign country or [an international or inter-governmentalDorganisation or any other person to do or abstain from doing anyact; or] commits terrorist act.

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

(a) “public functionary” means the constitutional authorities orany other functionary notified in the Official Gazette by the CentralEGovernment as public functionary;

(b) “high quality counterfeit Indian currency” means the counterfeitcurrency as may be declared after examination by an authorisedor notified forensic authority that such currency imitates orcompromises with the key security features as specified in theFThird Schedule.]

[(2) The terrorist act includes an act which constitutes an offencewithin the scope of, and as defined in any of the treaties specifiedin the Second Schedule.]

In this case, there is no allegation against the accused nos.1 and 2Gof committing any terrorists act. Chapter V contains provisions forforfeiture of proceeds of terrorism with which we are not concerned.

9. In these appeals, we are mainly concerned with the offencespunishable under Sections 20, 38 and 39 of the 1967 Act, which readthus:-H

“20. Punishment for being member of terrorist gang ororganisation.- Any person who is member of terrorist gangor terrorist organisation, which is involved in terrorist act, shallbe punishable with imprisonment for term which may extend toimprisonment for life, and shall also be liable to fine”.

“38.Offence relating to membership of terroristorganisation.—(1) person, who associates himself, orprofesses to be associated, with terrorist organisation withintention to further its activities, commits an offence relatingto membership of terrorist organisation:

Provided that this sub-section shall not apply where theperson charged is able to prove—

(a) that the organisation was not declared as terroristorganisation at the time when he became member orbegan to profess to be member; and

(b) that he has not taken part in the activities of theorganisation at any time during its inclusion in the FirstSchedule as terrorist organisation.

(2) person, who commits the offence relating to membershipof terrorist organisation under sub-section (1), shall bepunishable with imprisonment for term not exceedingten years, or with fine, or with both.

39.Offence relating to support given to terroristorganisation.—(1) person commits the offence relating tosupport given to terrorist organisation,—

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

(i)invites support for the terrorist organization; and

(ii)the support is not or is not restricted to provide moneyor other property within the meaning of section 40; or

(b) who, with intention to further the activity of terroristorganisation, arranges, manages or assists in arranging or managinga 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 person who associates or professesto be associated with the terrorist organisation; or

(c) who, with intention to further the activity of terroristorganisation, addresses meeting for the purpose of encouragingsupport for the terrorist organisation or to further its activity.

(2) person, who commits the offence relating to support givento terrorist organisation under sub-section (1) shall bepunishable with imprisonment for term not exceeding tenyears, or with fine, or with both”

(emphasis added)

10. The offence punishable under Section 20 is attracted whenthe accused is member of terrorist gang or terrorist organisationwhich is involved in terrorist act. Section 20 is not attracted unless theterrorist gang or terrorist organisation of which the accused is memberis involved in terrorist act as defined by Section 15. Section 20 providesDfor punishment of imprisonment for term which may extend toimprisonment for life and fine.

11. On plain reading of Section 38, the offence punishable thereinwill be attracted if the accused associates himself or professes toassociate himself with terrorist organisation included in First ScheduleEwith intention to further its activities. In such case, he commits anoffence relating to membership of terrorist organisation covered bySection 38. The person committing an offence under Section 38 may bea member of terrorist organization or he may not be member. If theaccused is member of terrorist organisation which indulges in terroristFact covered by Section 15, stringent offence under Section 20 may beattracted. If the accused is associated with terrorist organisation, theoffence punishable under Section 38 relating to membership of terroristorganisation is attracted only if he associates with terrorist organisationor professes to be associated with terrorist organisation with intentionto further its activities. The association must be with intention to furtherGthe activities of terrorist organisation. The activity has to be in connectionwith terrorist act as defined in Section 15. Clause (b) of proviso to sub-section (1) of Section 38 provides that if person charged with theoffence under sub-section (1) of Section 38 proves that he has not takenpart in the activities of the organisation during the period in which thename of the organisation is included in the First Schedule, the offenceH

relating to the membership of terrorist organisation under sub-section(1) of Section 38 will not be attracted. The aforesaid clause (b) can be adefence of the accused. However, while considering the prayer for grantof bail, we are not concerned with the defence of the accused.

12. Section 39 deals with the offences relating to support given toa terrorist organisation. It covers three kinds of offences under clauses(a), (b) and (c) of sub-section (1) of Section 39. The offences punishableunder clauses (a), (b) and (c) of sub-section (1) of Section 39 are attractedonly when the actions incorporated therein are done with intention tofurther the activities of terrorist organisation. As observed earlier, theactivities must have some connection with terrorist act. Clauses (a), (b)and (c) are attracted only if actions/activities specified therein are donewith intention to further the activities of terrorist organisation.13. Thus, the offence under sub-section (1) of Section 38 ofassociating or professing to be associated with the terrorist organisationand the offence relating to supporting terrorist organisation under Section39 will not be attracted unless the acts specified in both the Sections aredone with intention to further the activities of terrorist organisation. Tothat extent, the requirement of mens rea is involved. Thus, mereassociation with terrorist organisation as member or otherwise willnot be sufficient to attract the offence under Section 38 unless theassociation is with intention to further its activities. Even if an accusedallegedly supports terrorist organisation by committing acts referred inclauses (a) to (c) of sub-section (1) of Section 39, he cannot be heldguilty of the offence punishable under Section 39 if it is not establishedthat the acts of support are done with intention to further the activities ofa terrorist organisation. Thus, intention to further activities of terroristorganisation is an essential ingredient of the offences punishable underSections 38 and 39 of the 1967 Act.

14. The punishment prescribed for both the offences isimprisonment for period not exceeding 10 years or with fine or withboth. The offence under Section 20 is more serious as it attractspunishment which may extend to imprisonment for life and fine.Depending upon the gravity of offence committed under Section 38 and/or 39 and other relevant factors, the accused can be let off even on fine.

15. The accused no.2 has been charged with the offencepunishable under Section 13, which reads thus:

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

(a) takes part in or commits, or

(b) advocates, abets, advises or incites the commission of, anyunlawful activity, shall be punishable with imprisonment for aterm which may extend to seven years, and shall also be liableBto fine.

(2) Whoever, in any way, assists any unlawful activity of anyassociation declared unlawful under section 3, after thenotification by which it has been so declared has becomeeffective under sub-section (3) of that section, shall beCpunishable with imprisonment for term which may extend tofive years, or with fine, or with both.

(3) Nothing in this section shall apply to any treaty, agreementor convention entered into between the Government of Indiaand the Government of any other country or to any negotiationsDtherefor carried on by any person authorised in this behalf by

the Government of India.”

It is essentially an offence of committing unlawful activities asdefined under Clause (o) of Section 2. The said offence has been allegedon the ground that two banners were found in the house of the accusedEno.2 which according to the prosecution invite public support to freedommovement of Jammu and Kashmir. Section 13 does not form part ofChapter IV or VI. Hence, for consideration of grant of bail to personaccused of an offence under Section 13, stringent provisions of sub-section (5) of Section 43D will not apply.

F16. Now, we come to the provision in the 1967 Act regarding thegrant of bail. Sub-section (5) of Section 43D is relevant which readsthus:

“(5) Notwithstanding anything contained in the Code, no personaccused of an offence punishable under Chapters IV and VI ofGthis Act shall, if in custody, be released on bail or on his own bondunless the Public Prosecutor has been given an opportunity ofbeing heard on the application for such release:

Provided that such accused person shall not bereleased on bail or on his own bond if the Court, on perusalof the case diary or the report made under section 173 of

the Code is of the opinion that there are reasonable groundsfor believing that the accusation against such person isprima facie true.”

(emphasis added)

17. The stringent conditions for grant of bail in sub-section (5) ofSection 43D will apply only to the offences punishable only underChapters IV and VI of the 1967 Act. The offence punishable underSection 13 being part of Chapter III will not be covered by sub-section(5) of Section 43D and therefore, it will be governed by the normalprovisions for grant of bail under the Code of Criminal Procedure, 1973.The proviso imposes embargo on grant of bail to the accused againstwhom any of the offences under Chapter IV and VI have been alleged.The embargo will apply when after perusing charge sheet, the Court isof the opinion that there are reasonable grounds for believing that theaccusation against such person is prima facie true. Thus, if after perusingthe charge sheet, if the Court is unable to draw such prima facieconclusion, the embargo created by the proviso will not apply.

18. In the case of Watali (supra), this Court has extensively dealtwith sub-section (5) of Section 43D of the 1967 Act and has also laiddown the guidelines for dealing with bail petitions to which sub-section(5) of Section 43D is applicable. In paragraph 23, this Court consideredthe difference in the language used by Section 37 of the NDPS Actgoverning grant of bail and sub-section (5) of Section 43D of the 1967Act. Paragraph 23 of the said decision reads thus:-

“23. By virtue of the proviso to sub-section (5), it is the duty ofthe Court to be satisfied that there are reasonable grounds forbelieving that the accusation against the accused is prima facietrue or otherwise. Our attention was invited to the decisions ofthis Court, which has had an occasion to deal with similar specialprovisions in TADA and MCOCA. The principle underlying thosedecisions may have some bearing while considering the prayerfor bail in relation to the offences under the 1967 Act as well.Notably, under the special enactments such asTADA, MCOCA and the Narcotic Drugs and PsychotropicSubstances Act, 1985, the Court is required to record itsopinion that there are reasonable grounds for believing thatthe accused is “not guilty” of the alleged offence. There isa degree of difference between the satisfaction to berecorded by the Court that there are reasonable grounds

Afor believing that the accused is “not guilty” of such offenceand the satisfaction to be recorded for the purposes of the1967 Act that there are reasonable grounds for believingthat 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 theBinvestigating agency in reference to the accusation againstthe accused concerned in the first information report, mustprevail until contradicted and overcome or disproved byother evidence, and on the face of it, shows the complicityof such accused in the commission of the stated offence. ItCmust be good and sufficient on its face to establish given fact orthe chain of facts constituting the stated offence, unless rebuttedor contradicted. In one sense, the degree of satisfaction islighter when the Court has to opine that the accusation is“prima facie true”, as compared to the opinion of theaccused “not guilty” of such offence as required under theDother special enactments. In any case, the degree ofsatisfaction to be recorded by the Court for opining thatthere are reasonable grounds for believing that theaccusation against the accused is prima facie true, is lighterthan the degree of satisfaction to be recorded forEconsidering discharge application or framing of chargesin relation to offences under the 1967 Act.”

(emphasis added)

19. After considering the law laid down by this Court in variousdecisions including the decision in the case of RanjitsingFBrahmajeetsing Sharma v. State of Maharashtra[7], in paragraphs 24and 25 it was held thus:-

“24. priori, the exercise to be undertaken by the Court at thisstage-of giving reasons for grant or non-grant of bail-is markedlydifferent from discussing merits or demerits of the evidence. TheGelaborate examination or dissection of the evidence is not requiredto be done at this stage. The Court is merely expected torecord finding on the basis of broad probabilities regardingthe involvement of the accused in the commission of thestated offence or otherwise.

25. From the analysis of the impugned judgment, it appears to usthat the High Court has ventured into an area of examining themerits and demerits of the evidence. For, it noted that the evidencein the form of statements of witnesses under Section 161 are notadmissible. Further, the documents pressed into service by theinvestigating agency were not admissible in evidence. It also notedthat it was unlikely that the document had been recovered fromthe residence of Ghulam Mohammad Bhatt till 16-8-2017 (para61 of the impugned judgment). Similarly, the approach of the HighCourt in completely discarding the statements of the protectedwitnesses recorded Under Section 164 CrPC, on the speciousground that the same was kept in sealed cover and was noteven perused by the Designated Court and also because referenceto such statements having been recorded was not found in thecharge-sheet already filed against the respondent is, in our opinion,in complete disregard of the duty of the Court to record itsopinion that the accusation made against the accusedconcerned is prima facie true or otherwise. That opinionmust be reached by the Court not only in reference to theaccusation in the FIR but also in reference to the contentsof the case diary and including the charge-sheet (reportunder Section 173 CrPC) and other material gathered bythe investigating agency during investigation.”

(emphasis added)

20. Therefore, while deciding bail petition filed by an accusedagainst whom offences under Chapters IV and VI of the 1967 Act havebeen alleged, the Court has to consider whether there are reasonablegrounds for believing that the accusation against the accused is primafacie true. If the Court is satisfied after examining the material on recordthat there are no reasonable grounds for believing that the accusationagainst the accused is prima facie true, then the accused is entitled tobail. Thus, the scope of inquiry is to decide whether prima facie materialis available against the accused of commission of the offences allegedunder Chapters IV and VI. The grounds for believing that the accusationagainst the accused is prima facie true must be reasonable grounds.However, the Court while examining the issue of prima facie case asrequired by sub-section (5) of Section 43D is not expected to hold minitrial. The Court is not supposed to examine the merits and demerits ofthe evidence. If charge sheet is already filed, the Court has to examine

Athe material forming part of charge sheet for deciding the issue whetherthere are reasonable grounds for believing that the accusation againstsuch person is prima facie true. While doing so, the Court has to takethe material in the charge sheet as it is.

21. Under sub-section (1) of Section 45 of the 1967 Act, the CourtBis not empowered to take cognizance of any offence under Chapters IVand VI without previous sanction of the Central Government. Procedurefor obtaining sanction has been laid down in sub-section (2) of Section45, which reads thus:-

“[(2) Sanction for prosecution under sub-section (1) shall be givenCwithin such time as may be prescribed only after considering thereport of such authority appointed by the Central Government or,as the case may be, the State Government which shall make anindependent review of the evidence gathered in the course ofinvestigation and make recommendation within such time asmay be prescribed to the Central Government or, as the case mayDbe, the State Government.]”

22. The order of sanction dated 18[th] April 2020 is part of thecharge sheet which is placed on record of these appeals. Paragraphs 2and 3 of the order of sanction show that though the offence was registeredunder Sections 20, 38 and 39 of the 1967 Act, by letter dated 13[th] AprilE2020, NIA did not seek sanction for prosecuting any of the three accusedfor the offence punishable under Section 20. Sanction was sought toprosecute the accused nos.1 and 2 for the offences punishable underSections 38 and 39. In addition, sanction was sought to prosecute theaccused no.2 under Section 13. Paragraph 4 of the order refers to theFauthority appointed by the Central Government under sub-section (2) ofSection 45 consisting of retired Judge of High Court and retiredLaw Secretary, as well as the report submitted by the said authority.Paragraph 6 of the said order records prima facie satisfaction of theCentral Government that case is made out against the accused underthe provisions of the Act of 1967, as mentioned in letter dated 13[th] AprilG2020. Thus, as of today, sanction under sub-section (1) of Section 45 hasnot been accorded for prosecuting the accused for the offence punishableunder Section 20 of the Act of 1967 and, therefore, as of today, theSpecial Court under NIA Act cannot take cognizance of the offencepunishable under Section 20. Therefore, for deciding the issue of primaHfacie case contemplated by sub-section (5) of Section 43D, the case

against the both accused only under Sections 38 and 39 is required to beconsidered. In view of the absence of sanction and the fact that NIA didnot even seek sanction for the offence punishable under Section 20, aprima facie case of the accused being involved in the said offence isnot made out at this stage. As stated earlier, sub-section (5) of Section43D will not apply to Section 13, as Section 13 has been incorporated inChapter III of the 1967 Act.

23. While we deal with the issue of grant of bail to the accusednos.1 and 2, we will have also to keep in mind the law laid down by thisCourt in the case of K.A. Najeeb (supra) holding that the restrictionsimposed by sub-section (5) of Section 43D per se do not prevent aConstitutional Court from granting bail on the ground of violation of PartIII of the Constitution.

24. Now we turn to the material against the accused nos.1 and 2in the charge sheet. In paragraph 18 of the charge sheet, the chargesagainst accused nos.1 and 2 have been set out. Paragraph 18.1 to 18.17reads thus:

“18.1 That, accused A-1, A-2 and A-3 had, knowingly andintentionally, associated themselves and acted as members ofCommunist Party of India (Maoist) in short CPI (Maoist),proscribed as terrorist organisation by the Government of Indiaunder section 35 of the Unlawful Activities (Prevention) Act, 1967and included in the 1[st] Schedule to the Act.

18.2 That, accused A-1, A-2 and A-3 knowingly and intentionallyattended various conspiracy meetings along with otherunderground part-time and professional members of CPI (Maoist).They had also attended various programmes organized by thefrontal organisations of the proscribed terrorist organisation, forfurthering the objectives of CPI (Maoist).

18.3 That, the accused A-1, A-2 and A-3 had, knowingly andintentionally conducted meeting and conspired in front of MedicareLaboratory, Kottayithazham, Kozhikode City, at around 06:45 PMon 01.11.2019 for furthering the activities of the proscribed terroristorganisation CPI (Maoist).

18.4 That, the accused A-1 had knowingly possessed documentssupporting and published by CPI (Maoist) with the intention ofsupporting the proscribed terrorist organisation and propagatingits violent extremist ideology.

18.5 That, the accused A-2 had knowingly possessed documentssupporting and published by CPI (Maoist) with the intention ofsupporting the proscribed terrorist organisation and propagatingits violent extremist ideology.

18.6 That, the accused A-3, on seeing the Police party, had fledfrom the scene and managed to escape owing to his membershipin the proscribed terrorist organisation CPI (Maoist). He is stillabsconding.

18.7 That, A-1 had knowingly and with the intention of aiding CPI(Maoist) possessed on his digital devices, materials supportingthe proscribed terrorist organisation and its violent extremistideology, for the purpose of spreading such ideology.

18.8 That, the materials found during the house search of A-2such as notices, pamphlets, books, hand written notes, bannersbesides digital devices and publications were knowingly andDintentionally possessed by A-2 for supporting the proscribed terroristorganisation CPI (Maoist).

18.9 That, in pursuance of the conspiracy to further the activitiesof CPI (Maoist), during the house search of A-2, he had,intentionally and knowingly, raised slogans, supporting the ideologyof the proscribed terrorist organisation.

18.10 That, in furtherance of the conspiracies with co-accusedand others, A-2 had knowingly and intentionally prepared clothbanners supporting secession Kashmir from the Indian Union,for displaying at public places on behalf of CPI (Maoist) and thusFcommitted unlawful activity as defined under the UnlawfulActivities (Prevention) Act.

18.11 That A-1, knowingly and intentionally participated in themeetings of the proscribed terrorist organisation CPI (Maoist)with professional members including A-3 and had prepared notesGthat were maintained by A-1.

18.12 That, A-1 and A-3 knowingly and intentionally conspiredand conduced secret meetings at the rented accommodation ofA-1 in Kannur district, for furthering the objectives of the proscribedterrorist organisation CPI (Maoist).

18.13 That, the accused A-1, had knowingly and intentionallypropagated the Maoist ideology amongst his close friends withthe intention of radicalizing and recruiting them in to the proscribedterrorist organisation CPI (Maoist).

18.14 That, the accused had knowingly and intentionally conductedseveral conspiracy meetings (APTs) in Kozhikode and Kannurdistricts of Kerala for furthering the objectives of the proscribedterrorist organisation CPI (Maoist).

18.15 That, the accused A-3 and other underground professionalmembers of CPI (Maoist) had radicalised and recruited A-1 andA-2, besides others, into the proscribed terrorist organisation, withthe intention of furthering the activities of CPI (Maoist).

18.16 Therefore, Allan Shuaib @ Mamu @ Mammu @ Vivek(A-1) committed offences punishable under Section 120B of theIndian Penal Code besides sections 38 and 39 of the UnlawfulActivities (Prevention) Act, 1967.

18.17 Therefore, Thwaha Fasal @ Thaha @ Fasal @ Kishan(A-2) committed offences punishable under section 120B of theIndian Penal Code besides sections 13, 38 and 39 of the UnlawfulActivities (Prevention) Act, 1967.”

25. We have examined the material forming part of charge sheet.The material is in the form of books and other printed material found inthe custody of the accused nos.1 and 2 and the material found on thedigital devices seized from the accused no.2. The learned judge of theSpecial Court in his detailed judgment has categorised the seized materialinto 12 categories in paragraph 59. As regards the accused no.1, certaindocuments were found in the shoulder bag carried by him when he wasapprehended. The said documents are under:

1.A notice in Malayalam titled Professor Madhava GadgilCommittee report nadappilakuka (Implement ProfessorMadhav Gadgil Report).

2.A notice in Malayalam tiled “Maoist Veetekkethire JanangalRangathiranguka” (people should rise against Maoist Hunt)by Jogi, Spokesperson, CPI (Maoist), Paschima GhattaPrathyka Meghala Committee” (Western Ghats SpecialZonal Committee).

A3.A notice in Malayalam titled “Puthiya MunnettangalkkayiThayyaredukkuka, (Prepare for New Advancements)October 28, 29, 30 Wayanad Collectorattil Rappakal MahaDharna” (Day and Night Maha Dharna at WayanadCollectorate).

4.A hand written paper with scribble “Malabar Motham 17”and ending with word “student”.

5.A handwritten paper with writings “Reporting -2” whichends as “Porayama Undakunnathu Swabhavikam” havingfour pages serial numbered from 1 to 4.

6.A spiral bound note pad of “SPIROPAD No. 4150 Janvi”with some writings in code language.

7.A letter pad having 06 pages and light blue colour coverpage with writings “Vimarshana Swathatryam ThiricchuPidikkuka” (Regain Freedom to Criticize) “SwathatraDLokam 2017 Deshiya Seminar.”

8.A monthly Magazine “Maruvakk Rastriya SamskarikaMasika” of October 2019 Volume - 4, Edition – 10 having50 pages.

9.A pocket diary having 09 pages.

From search of his house, mobile phone was seized.

26. Two items were recovered from red file possessed by theaccused no.2 when he was apprehended. Following two items wererecovered from the red plastic file of the second accused :

“A book with heading “Indiayile Jathiprasnam NammudeKazhchapadu – May Dinam 2017” (Caste issues in India, ourviews – May day 2017) – published by Central Committee ofCPI (Maoist).

book in Malayalam language with heading “SankatanaGJanadhipathyam - Leninodulla Viyojanangal” (Organisationaldemocracy, disagreement with Lenin) of Rosa Luxemberg.”

27. From the house of the accused no.2, the following 18 itemswere seized:

“1.A Diary of 2018H

2.A book with heading “Indiayile jathiprasnam NammudeKazhchapadu – May Dinam 2017 (Caste issues in India,our views – May day 2017) – published by CentralCommittee of CPI (Maoist).

3.Pamphlets with heading “Sathruvinte AdavukalumNammude Prathyakramana Adavukalum (Enemies tacticsand our counter tactics) – 18 sheets.

4.A book titled “Hello Bastar, India Maoist PrasthanattinteParayappadatta Katha” (Hello Bastar, the Untold story ofIndian Maoist Organisation) written by Rahul Panditha.

5.A book titled “Mundur Ravunni – ThadavarayumPorattavum” (Mundur Ravunni – Imprisonment and fightwritten by Madula Mani.

6.A book titled “Indonesian Janankale FasistBharanadhikarikale Marichidan Vendi Onnikkuka Poraduka”– (Peoples of Indonesia, Join together and Fight to knockout the Fascist Ruler).

7.A book with outer cover writings “TRIVENI Special” andwritings inside.

8.A book with outer cover writing “CLASSMATE”, andhaving writings inside.

9.One page ruled paper having writings “Jammu KashmirinteSwathanthrya Porattathe Pinthunakkuka” (Support thefreedom struggle of Jammu Kashmir).

10.One page paper having writings “Pattaya PreshnamCollecorateil Ottayal Porattam (Land document issue, onepersonal strike at Collectorate).

11.A printed pamphlet with title “Vivadamaya Maradu FlatSamuchayangal Polichuneekuka” (Demolish thecontroversial flats at Maradu).

12.Printed Notice having printing starts with “sakhakkalakk”(to comrades) and ends with “area committee” and A4 sizenotices with writings “Jammu KashmirinmelullaAdhnivesham Avasanipikuka” (stop the control of Jammuand Kashmir) and ends with “Paschima Ghatta Prathyeka

AMekhala Committee” (Western Ghats Special ZonalCommittee (dated 2018 Aug 6-15 Nos., found kept inside afolded newspaper of Mathrubhumi daily dated 2019-Oct-4.

13.Two red colour Banners 180 cm x 87 cms with printing inYellow colour “Jammu Kashmirinte Swanthanthra PoratatheBPinthunakkuka, Kashmiril Adhinivesha Vazhcha NadathunnaIndian Bharana Koodathe Cherukkuka, BhrahmanyaHindutwa Fascist Bharana Varganthinethire KalapamCheyuka: CPI (Maoist)” (Support the freedom struggle ofJammu Kashmir, oppose the control of Indian Governmentat Jammu Kashmir, do struggle against Hindu BrahminCFascist Government).

14.One laptop with charger,

15.Mobile phone with SIM,

16.Two additional SIM cards,

17.Three memory cards,

18.Two Pen Drives.”

28. FSL report shows that the cell phone of the accused no.1 hada video clip with the title “Kashmir bleeding”, as well as portraits ofEvarious communist revolutionary leaders, like Che Guvera and Mao TseTung, as also portrait of Geelani, Kashmiri leader. Copies of certainposters were also found. Pdf files extracted showed that it containedmaterial regarding abrogation of Article 370 of the Constitution and variousother items. The photographs also showed that the accused no.1 attendedprotest gathering conducted in October 2019 by Kurdistan SolidarityFNetwork.

29. As regards the accused no.2, on his devices, images of CPI(Maoist) flag, files relating to constitution of central committee of CPI(Maoist), files relating to CPI (Maoist) central committee programme,image of hanging Prime Minister, various newspaper cuttings relating toGmaoist incidents were found. book was also seized relating to encounterwith PLGA (Maoist) at Agali.

30. The Special Judge noted that the face book account, e-mailaccounts and call details of the accused do not contain any incriminatingevidence. High Court has not recorded that any incriminating materialHwas found therein.

31. Another piece of evidence against the accused no.2 is thatduring the search of his residence, he shouted slogans, such as inquilabzindabad and maoisim zindabad. He also shouted slogans containinggreetings to the brave martyrs who died in an armed encounter betweenMaoist members and police. Another material forming part of the chargesheet is that absconding accused no.3 visited the place where the accusedno.1 was staying as paying guest. Material was found regardingcollection of membership fees and other amounts by the accused for thebenefit of the said organization.

32. Taking the charge sheet as correct, at the highest, it can besaid that the material prima facie establishes association of the accusedwith terrorist organisation CPI (Maoist) and their support to theorganisation.

33. Thus, as far as the accused no.1 is concerned, it can be saidhe was found in possession of soft and hard copies of various materialsconcerning CPI (Maoist). He was seen present in gathering whichwas part of the protest arranged by an organisation which is allegedlyhaving link with CPI (Maoist). As regards the accused no.2, minutes ofthe meeting of various committees of CPI (Maoist) were found. Certainbanners/posters were found in the custody of the accused no.2 for whichthe offence under Section 13 has been applied of indulging in unlawfulactivities. As stated earlier, sub-section (5) of Section 43D is not applicableto the offence under Section 13.

34. Now the question is whether on the basis of the materialsforming part of the charge sheet, there are reasonable grounds forbelieving that accusation of commission of offences under Sections 38and 39 against the accused nos.1 and 2 is true. As held earlier, mereassociation with terrorist organisation is not sufficient to attract Section38 and mere support given to terrorist organisation is not sufficient toattract Section 39. The association and the support have to be withintention of furthering the activities of terrorist organisation. In givencase, such intention can be inferred from the overt acts or acts of activeparticipation of the accused in the activities of terrorist organizationwhich are borne out from the materials forming part of charge sheet.At formative young age, the accused nos.1 and 2 might have beenfascinated by what is propagated by CPI (Maoist). Therefore, they maybe in possession of various documents/books concerning CPI (Maoist)in soft or hard form. Apart from the allegation that certain photographs

Ashowing that the accused participated in protest/gathering organisedby an organisation allegedly linked with CPI (Maoist), prima facie thereis no material in the charge sheet to project active participation of theaccused nos.1 and 2 in the activities of CPI (Maoist) from which evenan inference can be drawn that there was an intention on their part offurthering the activities or terrorist acts of the terrorist organisation. AnBallegation is made that they were found in the company of the accusedno.3 on 30[th] November, 2019. That itself may not be sufficient to inferthe presence of intention. But that is not sufficient at this stage to drawan inference of presence of intention on their part which is an ingredientof Sections 38 and 39 of the 1967 Act. Apart from the fact that overtCacts on their part for showing the presence of the required intention orstate of mind are not borne out from the charge sheet, prima facie, theirconstant association or support of the organization for long period oftime is not borne out from the charge sheet.

35. The act of raising funds for the terrorist organisation has beenDalleged in charge sheet against both the accused. This is separateoffence under Section 40 of the 1967 Act of raising funds for terroristorganisation which again contains intention to further the activity ofterrorist organisation as its necessary ingredient. The offence punishableunder Section 40 has not been alleged in this case.

E36. The learned judge of the Special Court after examining theentire materials on record of the charge sheet noted that there is noprima facie material to show intention on the part of both the accusedto further the activities of the terrorist organisation. Perusal of theimpugned judgment of the High Court shows that it has considered variousaspects, such as the accused were carrying their mobile phones whenFthey were apprehended on 30[th] November 2019 and that the documentswhich were possessed by the respondents were not out of curiosity orfor intellectual pursuits. The High Court observed that the learned SpecialJudge has oversimplified the matter. However, the High Court did notnotice that by taking the material collected during the investigation whichGforms part of the charge sheet as it is, the Special Court had recordeda prima facie finding regarding the absence of any material to showintention on the part of the accused to further the activities of CPI(Maoist). The High Court has not recorded prima facie finding on thisaspect. By applying the law laid down in the case of Watali (supra),there were no reasonable grounds for believing that the accusationsH

against the accused nos.1 and 2 of commission of offences under Sections38 and 39 were prima facie true.

37. There are other relevant factors which need consideration.The Special Court while enlarging the accused nos.1 and 2 on bail hadimposed most stringent conditions, such as furnishing of bail bonds ofRs.One lakh with two sureties each for the like amount with furthercondition that one of the sureties shall be one of the parents of the accusedand the other surety, shall be relative of the accused. There was acondition imposed of marking attendance on every first Saturday of everymonth at local police station. There was also condition imposed on theaccused of not associating in any manner or supporting in any manneractivities of CPI (Maoist) and all its formations. The accused nos.1 and2 were directed to not leave territorial limits of the State of Kerala withoutpermission of the Special Court. Moreover, SHO of the concerned policestation was directed to monitor the activities of both the accused. It isnot the case of the prosecution that any conditions were breached byany of the accused after they were enlarged on bail.

38. As held in the case of K.A. Najeeb (supra), the stringentrestrictions imposed by sub-section(5) of Section 43D, do not negate thepower of Constitutional Court to grant bail keeping in mind violation ofPart III of the Constitution. It is not disputed that the accused no.1 istaking treatment for psychological disorder. The accused no.1 is astudent of law. Moreover, 92 witnesses have been cited by the prosecution.Even assuming that some of the witnesses may be dropped at the timeof trial, there is no possibility of the trial being concluded in reasonabletime as even charges have not been framed. There is no minimumpunishment prescribed for the offences under Sections 38 and 39 of the1967 Act and the punishment can extend to 10 years or only fine or withboth. Hence, depending upon the evidence on record and afterconsideration of relevant factors, the accused can be let off even onfine. As regards the offence under Section 13 alleged against accusedno.2, the maximum punishment is of imprisonment of 5 years or withfine or with both. The accused no.2 has been in custody for more than570 days.39. It is true that without recording satisfaction as contemplatedby sub-section (5) of Section 43D, the order granting bail to the accusedno.1 could not have been confirmed by the High Court. However, wehave examined the material against both the accused in the context of

Asub-section (5) of Section 43D. Taking the materials forming part of thecharge sheet as it is,the accusation against both the accused of thecommission of offences punishable under Sections 38 and 39 does notappear to be prima facie true.

40. In view of the findings which we have recorded above, theBappeal preferred by the accused no.2 is allowed. The impugned Judgmentand Order of the High Court to the extent to which it sets aside the ordergranting bail to him is quashed and set aside and the Order dated 9[th]September 2020 of the Special Court For the Trial of NIA Cases atErnakulam in Crl. Misc. Petitions Nos.55-56/20 in SC No.1/2020/NIAgranting bail to him is hereby restored. The accused no.2 shall be producedCbefore the Special Court within maximum period of one week fromtoday to enable him to complete the bail formalities by furnishing thefresh bonds. We also make it clear that all the conditions imposed by theSpecial Court are restored.

41. The appeal preferred by Union of India is dismissed and theDorder granting bail to the accused no.1 is confirmed.

42. We clarify that the observations and findings recorded in thisJudgment are only for the limited purposes of considering the applicationsfor bail made by the accused nos. 1 and 2. The Special Court shall notbe influenced by the said observations and findings while applying itsEmind to the question of framing charge as the considerations for framingcharge are different. The Special Court will not be influenced by theobservations made in this Judgment during the trial of the case.

Devika Gujral

Appeals disposed of.