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TMI Blog2024 (8) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. By the impugned judgment, the prayer for bail made by the appellant was rejected, while bail was granted to a co-accused. SUBMISSIONS 2. The submission of Ms Mukta Gupta, learned senior counsel, is that there is absolutely no material to link the appellant with the offences under the UAPA. She pointed out that, at highest, the allegation is that the appellant's wife was the owner of a building known as Ahmad Palace and that the appellant had clandestinely shown that premises on the first floor of the said building were given on rent to one Athar Parwez - accused no. 1. The allegation is that, the first floor premises are being used for objectional activities of an organisation called Popular Front of India (PFI). She submitted that taking the charge sheet as it is, no connection has been established between the activities of PFI and the appellant. Even prima facie material for connecting the appellant with PFI is not available. She submitted that various people occupy other premises in the building. The building has a pathology laboratory, a clinic, and shops. She pointed out that, therefore, CCTV cameras were fixed on the property. She submitted that if the activities of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s involvement in the offences punishable under Sections 13, 18, 18A and 20 of the UAPA. She pointed out that accused no.1, in whose name the tenancy of the first floor was shown, had been an active member of a banned terrorist organisation - the Student Islamic Movement of India (SIMI). CONSIDERATION OF SUBMISSIONS 4. The appellant was arrested on 12th July 2022. The Trial has not made any progress. The building Ahmad Palace stands in the name of the appellant's wife. The appellant is a retired police constable. The allegation is that on 11th July 2022, in the evening, the police carried out a raid on the first floor premises of Ahmad Palace. At that time, there was a recovery and seizure of incriminating articles and documents relating to PFI. Paragraph 17.1 of the charge sheet reads thus: "17.1 Bihar Police had received information about a plan to disturb the proposed visit of Hon'ble Prime Minister to Bihar by some suspected persons who had assembled in Phulwarisharif area. On 11.07.2022 at about 1930 hrs, on secret information, a raid was carried out by the Police Officers of PS Phulwarisharif, Patna at the rented house/premises of Athar Parvej (A-1) and recovered 05 sets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vej (A-1) and Md. Jalaluddin (A-2). It also established that Md Jalaluddin (A-2) tampered the evidence by shifting of items from the first floor of Ahmad Palace, Phulwarisharif, Patna before raid of Police dated 11.07.2022." "17.2 Investigation brought out that during preliminary questioning by Police of PS Phulwarisharif, Patna, Md. Jalaluddin (A-2), owner of the house, revealed that the first floor of his house was taken on rent by Athar Parvej (A-1) for imparting training. On 6th and 7th July 2022, the training was conducted here, in which participants from other states were also present. ..................................................................." "17.26 During the investigation, the account statement of SBI account No. 33767976372 was sought from the State Bank of India, Branch Walmi, Patna and analysed. On analysis it revealed that on 12.05.2022, Rs. 25000/- were transferred into the account of Aamir Jalal s/o Md. Jalaluddin (A-2) from the Punjab National Bank, Bharwara, Distt- Muzaffarpur account no. 0772010316309 of Saqeeb Ahmad, s/o Md. Nayaj Ahmad Ankhuli Bhandhpur Katra, Muzaffarpur, Bihar. On analysis of the call data records of mobile number 9262711612 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of Section 2(m) of UAPA. Moreover, the charge sheet does not contain any material to show any connection of the appellant with PFI before letting out first floor premises to accused no.1. 7. About the sum of Rs. 25,000/- received by the appellant's son in his account, there is an explanation in the so-called discovery statement of the appellant relied upon by the respondent. Therefore, what is brought on record is that after the appellant's son negotiated with accused no.1, the premises on the first floor were let out to accused no.1 at the monthly rent of Rs. 16,000/- per month, and the amount received by appellant's son in his account was towards the part payment of the advance of rent for two months. 8. Now, we come to the other circumstances against the appellant. In paragraph 15.5 of the charge sheet, it is alleged that the appellant shifted certain items from the first floor before the raid was conducted on 11th July 2022. In the discovery statement of the appellant relied upon by the respondent in its counter, the appellant stated that he had kept items like gas cylinders, etc., in the first floor premises, which he removed. 9. In the raid on the first floor pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduce the statement of protected witness Z. In terms of our earlier order, the translated version of the statement of protected witness Z, recorded before the Additional Chief Judicial Magistrate, Patna, has been produced in a sealed envelope. We find that the statement substantially differs from what is narrated in paragraph 17.16 of the charge sheet. 11. The perusal of the statement shows that protected witness Z did not expressly state that the appellant participated in the meeting held on 29th May 2022. He has set out the names of several persons who attended the meeting. The appellant's name is not included in the names set out. In fact, the statement of protected witness Z indicates that after the meeting, the appellant was introduced as the owner of the building. Paragraph 17.16 alleges that protected witness Z stated that in the meeting, subjects such as the expansion of the organisation, basic and advanced training of PFI members and future PFI plans were discussed, and a direction was given to trained PFI cadre to eliminate one Nupur Sharma. In the statement of protected witness Z, all that is not found. In fact, protected witness Z stated that during the meeting, empha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ragraph 32 of the said decision reads thus: "32. In this regard, we need to look no further than Watali case [NIA v. Zahoor Ahmad Shah Watali, (2019) 5 SCC 1 : (2019) 2 SCC (Cri) 383] which has laid down elaborate guidelines on the approach that courts must partake in, in their application of the bail limitations under the UAP Act. On a perusal of paras 23 to 24 and 26 to 27, the following 8-point propositions emerge and they are summarised as follows: 32.1.Meaning of "prima facie true" : On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence. 32.2. Degree of satisfaction at pre chargesheet, post charge-sheet and post-charges - compared : "26. ... once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s one more decision of this Court in the case of Thwaha Fasal v. Union of India (2022) 14 SCC 766, which again deals with the scope of Section 43D(5) of UAPA. After considering the decision in the case of Zahoor Ahmad Shah Watali3, in fact, in paragraph 24, the case has been extensively reproduced. Thereafter, in paragraph 26, this Court held thus: "26. Therefore, while deciding a bail petition filed by an accused against whom offences under Chapters IV and VI of the 1967 Act have been alleged, the court has to consider whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. If the court is satisfied after examining the material on record that there are no reasonable grounds for believing that the accusation against the accused is prima facie true, then the accused is entitled to bail. Thus, the scope of inquiry is to decide whether prima facie material is available against the accused of commission of the offences alleged under Chapters IV and VI. The grounds for believing that the accusation against the accused is prima facie true must be reasonable grounds. However, the court while examining the issue of prima facie case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd whatsoever, the Criminal Appeal No. 3173 of 2024 Page 18 of 22 cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which incites any individual or group of individuals to bring about such cession or secession; or (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India; or (iii) which causes or is intended to cause disaffection against India; ..................................................................." Sections 18 and 18A of UAPA read thus: "18. Punishment for conspiracy, etc.- Whoever conspires or attempts to commit, or advocates, abets, advises or incites, directly or knowingly facilitates the commission of, a terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. 18A. Punishment for organising of terrorist camps.-Whoever organises or causes to be organised any camp or camps for imparting training in terrorism shall be punishable with imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isation operating under the same name as the organisation was listed. The charge sheet does not mention the name of the terrorist organisation within the meaning of Section 2(m) of which the appellant was a member. We find that the PFI is not a terrorist organisation, as is evident from the first schedule. 19. Therefore, on plain reading of the charge sheet, it is not possible to record a conclusion that there are reasonable grounds for believing that the accusation against the appellant of commission of offences punishable under the UAPA is prima facie true. We have taken the charge sheet and the statement of witness Z as they are without conducting a mini-trial. Looking at what we have held earlier, it is impossible to record a prima facie finding that there were reasonable grounds for believing that the accusation against the appellant of commission of offences under the UAPA was prima facie true. No antecedents of the appellant have been brought on record. 20. The upshot of the above discussion is that there was no reason to reject the bail application filed by the appellant. 21. Before we part with the Judgment, we must mention here that the Special Court and the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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