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TMI Blog2023 (4) TMI 1399X X X X Extracts X X X X X X X X Extracts X X X X ..... information supplied by Accused No. 46. The same is the case with the other allegation that Accused No. 46 showed a Xerox shop where Accused No. 47 and one Kiran were allegedly standing on 23rd September 2018. Therefore, the statements of Accused No. 46 that he would show the medical shop and the Xerox shop may not be, prima facie, admissible Under Section 27 of the Evidence Act. Moreover, as noted in the order of the High Court granting bail to Accused No. 84, the said Kiran, who was allegedly standing with Accused No. 47 near the Xerox shop on 23rd September 2018 was already in custody from 18th September 2018 and he continued to be in custody even on 23rd September 2018. There was a recovery of landmine at the instance of Accused No. 46. It must be noted here that it is not the case of the prosecution that the recovery of landmine was at the instance of the Accused No. 47. The recovery Panchama (Annexure A-1) to IA No. 74099 of 2022 is styled as "Mediators' Report and Seizure Panchnama". It records that at about 4 pm on 13th October 2018, the mediators were present at Livitiputtu village with ASP Amitabh for preparing the Mediators' Report and Seizure Panchanama - Going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t'). 3. The incident is of 23rd September 2018. At about 12:10 hours, Shri Kidari Sarveswara Rao, a member of the Legislative Assembly and whip of the Telugu Desam Party in Legislative Assembly and one Shri Siveri Soma, a former MLA belonging to Telugu Desam Party, were killed near the village Livitiputtu, Pothangi Panchayat within the jurisdiction of Dumbriguda Police Station at Visakhapatnam. This incident took place when both of them were proceeding to village Sarai to attend a function. The allegation is that 45 Accused persons who belonged to the Communist Party of India (Maoist), a terrorist organisation notified in the first Schedule of the UAPA, stopped the convoy of vehicles of the aforesaid two leaders. The Accused compelled them to get out of their cars. Both of them were taken towards Y-Junction. Thereafter, the MLA was taken to the left-hand side of Y-Junction and the Ex-MLA was taken to the right-hand side of Y-Junction. Both of them were killed by three gunshots. The Personal Secretary of the deceased sitting MLA lodged FIR on the same day in which he named 45 Accused. Earlier, investigation was carried out by a Special Investigation Team, which was subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri K.M. Nataraj, learned ASG appearing for the Respondent, pointed out the Memorandum dated 13th October 2018 Under Section 27 of the Indian Evidence Act, 1872 (for short 'the Evidence Act'), which shows that a steel can weighing about 10 kg containing bolts, nuts and filled with explosive material and connected to a detonator through a wire was recovered at the instance of Accused No. 46 near a kaccha road near village Sarai where the deceased political leaders were to visit. He also pointed out that the landmine was planted with the object of killing the said two leaders. He pointed out that the disclosure statement made by Accused No. 46 on 16th January 2019 shows that he purchased a huge quantity of medicines worth Rs. 8,000/- and handed them over to a Maoist. He pointed out that the Appellants-Accused used different SIMs standing in the names of third parties to remain in touch with the co-Accused. As regards Accused No. 47, he submitted that the disclosure statement of 13th October 2018 records that both the Appellants dug a pit near a kaccha road leading to Sarai village and planted a landmine therein. He also pointed out that the Accused Nos. 46 and 47 were constant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with IA No. 21015 of 2022. In the said judgment, the High Court has considered the CDR records of the telephonic conversation between Accused No. 46 and Accused No. 84. In paragraph 9, the High Court observed that Accused No. 46 was an Ex-Sarpanch of the village where Accused No. 84 was teaching in a government school and therefore, it was natural that being an Ex-Sarpanch, people were constantly approaching him. The calls were exchanged between these two Accused on the date of the offence and after the offence. The High Court observed that when an offence of such a nature happened in the vicinity, it is not unusual that Accused No. 46, who was an Ex-Sarpanch, would receive calls from many persons immediately after the commission of the offence. The High Court further observed that there was an allegation that medicines worth Rs. 8,000/- were purchased at the instance of the Accused No. 84 which were handed over at his instance to one Kiran, who was also a Maoist. The High Court observed that in the chargesheet filed against Accused No. 46, it was noted that the said Kiran was arrested on 18th September 2018 and was in custody on the date of the offence. Therefore, the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer can be admitted in evidence against him. An exception to this is however provided by Section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an Accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement. Section 27 is a proviso to Section 26 and makes admissible so much of the statement of the Accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the Section is that the information given by the Accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the Accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the Accused before the police will not apply if all the above conditions are fulfilled. If an Accused charged with a theft of articles or receiving stolen articles, within the meaning of Section 411 Indian Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial aspect. A statement of one G. Narasinga Rao, who was allegedly running the said medical shop has been recorded during the investigation. In the statement, he has stated that on 16th January 2019, NIA team visited his shop and inquired about the sale of medicines involving a large amount in July 2018 and the team brought Accused No. 46 with them. This shows that the NIA team was already aware of the location of the shop from which a large quantity of medicines was allegedly purchased by Accused No. 46 in July 2018. 16. Now, we come to the material to show that there was a recovery of landmine at the instance of Accused No. 46. It must be noted here that it is not the case of the prosecution that the recovery of landmine was at the instance of the Accused No. 47. The recovery Panchama (Annexure A-1) to IA No. 74099 of 2022 is styled as "Mediators' Report and Seizure Panchnama". It records that at about 4 pm on 13th October 2018, the mediators were present at Livitiputtu village with ASP Amitabh for preparing the Mediators' Report and Seizure Panchanama. It is recorded in the Panchnama that ASP Amitabh, an IPS officer, along with other 9 or 10 police officials with a Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he will show the place where landmine was planted by him. The Panchnama shows that the Accused No. 46 took them to a place and showed landmine. There is no confessional statement made by him giving information that he is in a position to show the place where he had planted landmine. Therefore, prima facie, "the Mediators' Report and Seizure Panchnama" is not helpful to the prosecution in proving that the landmine was discovered at the instance of the Accused No. 46. 18. As can be seen from the chargesheet, in paragraph 17.32, there were three material allegations against Accused No. 46. The first was of plantation of a landmine which we have already discussed. The second one was that he provided shelter and logistic support to the Maoists for facilitating the commission of the offence. The third circumstance that he purchased medicines worth Rs. 8,000/- as per the suggestion of Accused No. 84 will also have to be kept out of consideration for the reasons already recorded. In paragraph 5 of the additional affidavit of the Respondent, the material against the Appellants has been set out in a tabular form. In the tabular form, it is not mentioned that there are statements of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UAPA are prime facie true. Hence, the embargo on the grant of bail under proviso to Sub-section (5) of Section 43D will not apply in this case. We, however, make it clear that the findings recorded in this judgment are only prima facie observations recorded for the limited purposes of examining the case in the light of the proviso to Sub-section (5) of Section 43D of the UAPA. The trial shall be conducted uninfluenced by these observations. 22. As narrated earlier, the Appellants are in custody for four and half years. The charge has not been framed and the prosecution proposes to examine more than 140 witnesses. Some of the Accused are absconding. Thus, there is no possibility of the trial commencing in the near future. 23. It is obvious that while granting bail, stringent conditions will have to be imposed. We propose to leave it to the learned Special Judge to impose appropriate conditions. 24. Accordingly, we set aside the impugned orders. We direct the Respondent to ensure that Appellants are produced before the learned Special Judge for the trial of NIA cases at Vijayawada within a maximum period of one week from today. The learned Special Judge shall release the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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