2023 (7) TMI 1384 - SC - Indian Laws

Rejection of bail - conspiracy - allegations of recruiting cadres for the banned organisation, to import the provisions of Section 18B of Unlawful Activities (Prevention) Act, 1967 - HELD THAT - It is not possible 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 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. 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 concerned, at this stage there is no such evidence which can be relied upon. The appellant are directed to 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 - appeal allowed.

Summary

Issues Involved:
1. Rejection of Bail by High Court
2. Association with a Terrorist Organization
3. Application of Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967
4. Delay in Trial and Continued Detention
5. Interpretation of Evidence and Prima Facie Case

Summary of Judgment:

1. Rejection of Bail by High Court:
The appellants challenged two judgments of the Bombay High Court rejecting their bail applications. The High Court's decisions were based on the same FIR and chargesheet, implicating the appellants under various sections of the Indian Penal Code (IPC) and the Unlawful Activities (Prevention) Act, 1967 (UAPA).

2. Association with a Terrorist Organization:
The prosecution alleged that the appellants were involved with the Communist Party of India (Maoist), a designated terrorist organization under the UAPA. The allegations included recruitment and training of cadres, managing finances, and participating in a conspiracy to overthrow the democratic government. The evidence cited involved letters and statements from protected witnesses, but these were largely based on third-party communications and lacked direct involvement of the appellants in terrorist acts.

3. Application of Section 43D(5) of the UAPA:
The court examined whether the accusations under Sections 16, 17, 18, 18B, 20, 38, 39, and 40 of the UAPA were prima facie true. The court noted that the materials presented by the prosecution, including letters and witness statements, did not establish the appellants' direct involvement in terrorist acts. The court emphasized that mere possession of certain literature or participation in seminars does not constitute an offense under the bail-restricting sections of the UAPA.

4. Delay in Trial and Continued Detention:
The court considered the prolonged detention of the appellants, who had been in custody for almost five years without the trial commencing. Citing previous judgments, the court held that continued detention without substantial evidence breaches the concept of liberty enshrined in Article 21 of the Constitution of India. The court noted that the appellants' detention could not be justified based on the materials presented, which had low probative value.

5. Interpretation of Evidence and Prima Facie Case:
The court analyzed the evidence against the appellants, including letters and witness statements, and found that they did not prima facie establish the appellants' involvement in terrorist acts. The court reiterated that the materials must show the appellants' complicity in the commission of the stated offenses to satisfy the prima facie test. The court concluded that the prosecution failed to provide credible evidence to justify the continued detention of the appellants.

Conclusion:
The Supreme Court set aside the impugned judgments and granted bail to the appellants, subject to certain conditions, including surrendering passports, reporting to the police station weekly, and keeping their mobile phones active and accessible. The court emphasized that bail could be canceled if the appellants breached any conditions or influenced witnesses. The appeals were allowed, and pending applications were disposed of.