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TMI Blog2024 (3) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure or any other law for the time being in force on grant of bail. The question of entering the 'second test' of the inquiry will not arise if the 'first test' is satisfied. And merely because the first test is satisfied, that does not mean however that the Accused is automatically entitled to bail. The Accused will have to show that he successfully passes the 'tripod test'. The material available on record indicates the involvement of the Appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the Appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice. Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on the behalf the Appellant cannot be accepted. The material on record prima facie indicates the complicity of the Accused as a part of the conspiracy since he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 25 of Arms Act. On further investigation, the police submitted supplementary reports. 3.3 Due to degree of severity in the charges involved, the investigation in the present matter was transferred to the National Investigation Agency (NIA), which took over the investigation of this case as per the directions of Government of India, Ministry of Home Affairs issued vide Order F. No. 11011/30/2020/NIA dated 04.04.2020 and registered the original case as RC.19/2020/NIA/DLI dated 05.04.2020. 3rd supplementary chargesheet was filed by NIA dated 18.12.2020 and Charges were framed by the Learned Special Judge, NIA Punjab on 09.12.2021. 3.4 The investigation revealed that the Accused persons received funds through illegal means sent by members of the banned terrorist organization Sikhs For Justice , those funds were channeled through illegal means such as Hawala and were sent to be used for furthering separatist ideology of demanding a separate State for Sikhs popularly called Khalistan , and to carry out terror activities and other preparatory acts i.e., attempts to procure weapons to spread terror in India in furtherance of such separatist movement. The investigation further revealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alves, appearing on behalf of the Appellant made the following submissions in support of the Appellant's bail application: 5. Mr. Gonsalves, learned Senior Counsel contended that the Appellant has been denied bail by the Hon'ble High Court and the Ld. Special Judge by relying upon the disclosure statement of Bikramjit Singh alias Vicky and argued that the said disclosure statement cannot be used to implicate the present Appellant. 6. Learned Senior Counsel further raised contentions about the lack of scrutiny of the Appellant's mobile phone, marked as M-4 to indicate that the phone number did not belong to the Appellant. He argued that the absence of incriminating conversations in the Communication Data Records (CDR) related to the Appellant's phone supports the case for bail. He further contended that the Appellant has been in custody since the last Five years facing charges of UAP Act which is contrary to the law laid down in K.A. Najeeb v. Union of India 2021:INSC:50 : (2021) 3 SCC 713. 7. He further submitted that only 19 out of 106 witnesses have been examined in the last five-year period. He also drew our attention to terror funding chart to demonstrate that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is every likelihood that he will influence the key witnesses of the case hampering the process of justice. Hence, he prayed that the bail petition should be rejected. DISCUSSION AND CONCLUSION 14. We have heard the learned Counsel on behalf of both the parties and have perused the records of the case. The present case involves the charges under the UAP Act along with other charges under the Indian Penal Code and Arms Act therefore, it is apt to consider the bail provision envisaged Under Section 43D of the UAP Act before we delve to analyze the facts. Bail under UAP Act: Section 43D(5) 15. In the course of oral argument, both sides have laid great emphasis on the interpretation of Section 43D(5) of the 1967 Act. We will begin our analysis with a discussion on the scope and limitations of bail Under Section 43D(5) UAP Act. We shall extract Section 43D(5) for easy reference: Section 43D - Modified application of certain provisions of the Code (1)...... ................ (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 Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail jurisprudence vis- -vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D(5)- 'shall not be released' in contrast with the form of the words as found in Section 437(1) Code of Criminal Procedure - 'may be released'- suggests the intention of the Legislature to make bail, the exception and jail, the rule. 19. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The 'justifications' must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, 'prima facie' standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinising the justification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flight risk? 2.2. Whether there is apprehension of the Accused tampering with the evidence? 2.3 Whether there is apprehension of Accused influencing witnesses? 22. The question of entering the 'second test' of the inquiry will not arise if the 'first test' is satisfied. And merely because the first test is satisfied, that does not mean however that the Accused is automatically entitled to bail. The Accused will have to show that he successfully passes the 'tripod test'. Test for Rejection of Bail: Guidelines as laid down by Supreme Court in Watali's Case 23. In the previous section, based on a textual reading, we have discussed the broad inquiry which Courts seized of bail applications Under Section 43D(5) UAP Act r/w Section 439 Code of Criminal Procedure must indulge in. Setting out the framework of the law seems rather easy, yet the application of it, presents its own complexities. For greater clarity in the application of the test set out above, it would be helpful to seek guidance from binding precedents. In this regard, we need to look no further than Watali's case which has laid down elaborate guidelines on the approach that Courts must partak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le'; no piecemeal analysis [para 27]: The totality of the material gathered by the investigating agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance. Contents of documents to be presumed as true [para 27]: The Court must look at the contents of the document and take such document into account as it is. Admissibility of documents relied upon by Prosecution cannot be questioned [para 27]: The materials/evidence collected by the investigation agency in support of the accusation against the Accused in the first information report must prevail until contradicted and overcome or disproved by other evidence.......In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. 24. It will also be apposite at this juncture to refer to the directions issued in Devender Gupta v. National Investigating Agency 2014 (2) ALD Cri. 251 wherein a Division Bench of the High Court of Andhra Pradesh strove to strike a balance between the mandate Under Section 43D on one hand and the rights of the Accused on the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Watali's case (supra) and observed that: the expression prima facie would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the Accused concerned must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows that 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. 27. In the light of these guiding principles, we shall now proceed to decide whether the additional limitations found in Section 43D(5) UAP Act are attracted in the facts of the present case. In other words, we shall inquire if the first test (as set out above), i.e., test for rejection of bail, is satisfied. For this purpose, it will, firstly, have to be examined whether the allegations/accusations against the Appellants contained in charge-sheet documents and case diary, prima facie, disclose the commission of an offence Section 17, 18 and 19 of the UAP Act. Section 17 of the UAP Act states: 17. Punishment for raising funds for terrorist act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh (Accused No. 3) approximately 26 times, spanning from June 22, 2018 to October 19, 2018, the day of his arrest. 30. The Appellant's counsel has objected to the denial of bail by the High Court and Special Court upon relying on the disclosure statements of Bikramjit Singh @ Vicky (Accused No. 3) and the Appellant himself. Accused No. 3 in his disclosure statement (Annexure P3) has stated that on 08.07.2018, he along with Harpreet Singh @ Happy and Gurwinder Singh @ Gurpreet Singh Gopi (the present Appellant) went to Srinagar for the purchase of pistol which was sought to be used by them to take revenge of the Sacrilege of Guru Granth Sahib. Further, the disclosure Statement of the present Appellant (Annexure P4) corroborated the disclosure Statement of Accused No. 3 wherein he stated that he went with Accused No. 3 and Harpreet Singh @ Happy to Srinagar. Though the present Appellant has taken the stance of not knowing the purpose of the visit to Srinagar, in his disclosure statement, he has admitted to the fact that he suggested both Bikramjit Singh (Accused No. 3) and Harpreet Singh (Accused No. 7) to purchase the weapon from western Uttar Pradesh. 31. The Appellant's ..... X X X X Extracts X X X X X X X X Extracts X X X X
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