Delhi High Court
Alemla Jamir vs National Investigation Agency on 13 January, 2025
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20.11.2024
Pronounced on: 13.01.2025
+ CRL.A. 606/2024
ALEMLA JAMIR .....Appellant
Through: Mr. Tanveer Ahmad Mir, Mr.
Kartik Venu, Md. Imran
Ahmad, Mr. Jude Rohit and Mr.
Paras Nath Mishra, Advs
versus
NATIONAL INVESTIGATION AGENCY .....Respondent
Through: Ms. Shilpa Singh, Spl. PP, NIA
with Ms. Priyam Agarwal, Mr.
Mr. Vanshaj Tyagi, Advs., and
Mr. Sanjay Kumar, Inspector
and Mr. Pawan Singh Rana.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE SHALINDER KAUR
JUDGMENT
SHALINDER KAUR, J
1. The present appeal under Section 21(4) of the National
Investigation Agency (NIA) Act, 2008 has been preferred against the
Order dated 31.05.2024, whereby the second bail application of the
appellant was dismissed by the learned Additional Sessions Judge – 03
(ASJ), Special Courts (NIA)- New Delhi, Patiala House Courts, Delhi
in NIA Case No. 1/2020 titled “National Investigation Agency vs.
Alemla Jamir & Anr.”.
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BRIEF FACTS
2. The investigation in this case was launched, when on
17.12.2019, the appellant Alemla Jamir (A-1) while travelling from
Delhi to Dimapur, Nagaland was intercepted by the Central Industrial
Security Force (CISF) Security Personnel at the Terminal-1 of the
Indira Gandhi International Airport (IGI), New Delhi upon discovery
of her carrying Rs. 72 Lakhs in cash, without providing any
explanation as to its source. This information was forwarded to the Air
Intelligence Unit (AIU) of the Income Tax Department and the
appellant was taken in for interrogation, along with her belongings
which included the said cash recovered from her.
3. Subsequent thereto, the appellant was questioned by the
Assistant Commissioner of Income Tax (Investigation) and her
statement was duly recorded, wherein she stated that the said cash of
Rs. 72 lakhs belongs to Nationalist Socialist Council of Nagaland
(Isaac-Muivah) [NSCN(IM)] and was handed over to her on the
directions of Mr. Muivah, General Secretary of NSCN(IM) to be taken
to Dimapur, Nagaland.
4. The appellant was then taken for interrogation by the Special
Cell on 17.12.2019. Since, it was found that the large amount of
money recovered from her was to be used for carrying out operations
of an alleged terrorist gang, that is, NSCN(IM) and other terrorist
activities in India, a complaint was lodged by the Sub-Inspector
Gautam Mallick, on the basis of which an FIR bearing no. 228/2019
was registered on the same day by the Special Cell against the
appellant for the offences under Sections 10, 13, 17, 18, 20 & 21 of
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the Unlawful Activities (Prevention) Act, 1967 [UA(P) Act]. Upon
which, the appellant was arrested on 18.12.2019 by the Special Cell.
The investigation of the case, vide the Ministry of Home Affairs
(MHA) order no. 11011/63/2019/NIA dated 20.12.2019, was handed
over to the NIA and the FIR was re-registered as RC No.
26/2019/NIA/DLI.
5. During the course of investigation, the appellant gave a
disclosure statement of having collected the cash amount of Rs. 72
lakhs on the directions of Mr. Muivah from his residence at Lodhi
Estate, New Delhi, out of which she had to deliver Rs. 70 lakhs to
Mrs. Muivah at Dimapur and the rest Rs. 2 lakhs were to be kept by
her for personal expenses. The Call Data Records (‘CDR’) of the
appellant’s mobile phone, analyzed by the investigating agency,
corroborated her location in the house of Mr. Muivah on 16.12.2019.
6. The appellant also disclosed that she was the member of
NSCN(IM) and her husband, namely Phungting Shimrang @ P H
Shimrang @ Jamis Jamir, was its ex-Army Chief. She also admitted
that her husband, along with other individuals, had gone to China in
October, 2019 to take assistance from the Chinese Authorities for
helping them in ‘Naga Cause’ in their fight against India. The NIA
also found that the NSCN(IM) was a terrorist gang with a trained
army and sophisticated weaponry, claiming to have enacted its own
‘Naga Army Act’. The NSCN(IM) was accused of running a parallel
government under the nomenclature of Government of People’s
Republic of Nagalim (GPRN). The objective of GPRN, behind
forming a full-fledged Army, was to threaten the unity, integrity,
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security and sovereignty of India. The organization had also usurped
the sovereign Government function of collecting taxes and used to
collect various taxes such as Employee Tax, Ration Tax, Vehicle Tax,
Royalty, Import and Export / Gate pass Tax etc.
7. The investigation further revealed that the appellant, in
connivance with Masasasong AO (A-2), her brother-in-law, and with
assistance from the other co-accused persons, was actively raising
terrorist funds/extortion money through a sophisticated network by
terrorizing businessmen through the Naga Army and had created a
systematic mechanism of collection of extortion/tax money for the
terrorist fund.
8. It was revealed that the A.J. Agency, run by the appellant, was a
part of the modus operandi adopted by her for extortion of money
from Eastern Motors, Imphal, for allowing a safe passage to their
vehicles and route from Dimapur to Imphal, especially to cross Mao
Gate, which was controlled by the Naga Army of the NSCN(IM). The
transactions were carried out in such a manner which ensured that
there would be no financial trail linking this extortion of money to the
appellant. Later on, the extortion money from Eastern Motors, Imphal
was directly transferred to the bank account of A.J. Agency. During
the house search of the appellant, a small cash receipt book, exhibit
marked as ‘Doc 47’, containing various receipts along with their
carbon copies were seized and had the words ‘GPRN’ printed on
them. The armed cadets of NSCN (IM) deployed at Mao Gate allowed
the vehicles to pass over to Manipur only upon production of such
slips by the drivers.
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9. The investigation further revealed that the appellant through a
frontal society, namely ‘Naga Women Society for Employment’,
extended a significant amount of extorted money as loan on different
occasions. In fact, all the transactions were done using different bank
accounts of the appellant, A-2, A.J. Agency and others. The
Chargesheet provides the details of the amounts received and returned
by the appellant, A-2 and their associates. The investigation further
indicated that the money used to be collected from civilians and
businessmen by creating terror in their mind. It was also revealed that
the appellant used to lend funds at a very high rate of interest in
furtherance of raising terror funds.
10. Further, searches were conducted during the investigation and
various incriminating articles and documents were recovered from the
house of the appellant, which included live ammunition, bullet proof
jackets, satellite phones, a drone, extortion slips and documents
relating to huge financial transactions. Besides this, incriminating data
from her computer was also recovered during the said house search.
11. It was further found in the investigation that the appellant’s
husband, a member of the Steering Committee of the NSCN(IM), was
the Commander-In-Chief of NSCN(IM). Additionally, the appellant,
her husband, A2, and other members of NSCN(IM) have links with
different suspicious foreign organizations. Moreover, it was
uncovered that the accused persons were in the process of collecting
the know-how in relation to fabricating IEDs/bombs.
12. The investigation revealed that the appellant also fraudulently
used numerous documents to create false identities in the name of
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Mary Shimrang and Atula Tonger, apart from her identity as Alemla
Jamir, and was fully aware of the said identification documents being
forged and yet, continued to use them as genuine. She had used those
documents to obtain multiple bank accounts, PAN cards and
Passports. During the investigation, it was found that the appellant had
instructed A-2 to urgently invest the extorted funds to purchase some
land before the security agencies trace the said money.
13. Upon the NIA concluding the investigation, a Chargesheet was
filed on 11.06.2020 arraying the appellant as the accused no. A1 under
Section 120B, 384, 471 of the Indian Penal Code, 1860 (IPC) read
with Section 17, 18, 20 and 21 of UA (P) Act and Section 25(1A) of
the Arms Act, 1959, alleging that she has entered into a criminal
conspiracy with the co-accused persons and having directly raised and
collected terror funds for NSCN(IM) through illegal means of
extortion, and by giving out loans at high rates of interest with
knowledge that such funds are likely to be used in full or in part by the
said terrorist gang.
14. The Chargesheet also arrayed the appellant’s brother-in-law,
Masasasong Ao, as accused no. A2, alleging that he is also a member
of the said terrorist gang, who was arrested on 07.02.2020. He is
charged of the offences under Section 120B, 201, 384, 465 & 467 IPC
and 17, 18, 20 & 21 of UA(P) Act, 1967.
15. The appellant’s husband is alleged to be a senior member of the
said terrorist gang, and is also stated to be involved in the alleged
conspiracy of terror funding. He has been arrayed as accused no. A3,
however, has not been chargesheeted and remains absconding, having
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fled to China.
16. Thereafter, a supplementary Chargesheet was filed on
03.08.2022.
17. Vide order dated 15.09.2022 of the learned ASJ, Charges were
ordered to be framed under Section 120B, 384, 471 IPC as well as
Section 17, 18, 20 & 21 of UA(P) Act and Section 25 of the Arms Act
against the appellant and were, accordingly, framed on 07.10.2022.
The appellant has challenged the said orders by an appeal bearing no.
Crl. A. 679/2022 before this Court. Notice was issued by this Court on
23.12.2022 in the said appeal and the same is currently pending
adjudication.
18. During the course of the proceedings before the learned ASJ,
the appellant moved her first bail application, which came to be
dismissed vide order dated 12.12.2022, against which the appellant
preferred an appeal bearing no. Crl.A. 513/2023 before this Court,
which was, vide order dated 14.12.2023, dismissed as withdrawn
while granting liberty to the appellant to file a fresh application before
the learned ASJ. Availing of the said liberty, the appellant moved a
second bail application before the learned ASJ, which came to be
dismissed again vide the Impugned Order dated 31.05.2024, which is
being challenged in the present appeal.
SUBMISSIONS OF THE APPELLANT:
19. Mr. Tanveer Ahmad Mir, the learned counsel for the appellant
submitted that the appellant is aged about 51 years and is a permanent
resident of Nagaland, having inherited ancestral property and running
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a transport business in the name of AJ Agency in Dimapur, Nagaland
and is also involved in the business of poultry farming. She has been
falsely implicated and wrongly incarcerated in the present case since
17.12.2019, for allegedly carrying Rs. 72 lakhs while travelling from
Delhi to Dimapur, Nagaland. He submitted that the learned ASJ did
not appreciate or take judicial notice of the history of political
negotiations between the Government of India and the NSCN(IM),
which has reached various extension agreements and Memorandums
of Understanding with the Cease-fire Agreement of 1997.
20. Learned counsel submitted that rather, the prosecution’s case is
based on a completely false premise that the NSCN(IM) is a terrorist
gang, which it is not, as the Government of India itself has signed and
honored a Cease-Fire Agreement, 1997 and a Framework Agreement
as of 2015, thereby, establishing that the said organization is a
legitimate stakeholder in the Indo-Naga political dispute and not a
terrorist gang, as claimed by the prosecution. Even otherwise, there is
no material to infer or suggest that the NSCN(IM) is a terrorist group
nor it has been notified as an ‘unlawful organization’ or ‘terrorist
organization’ in terms of the UA(P) Act, 1967, which requires a
notification by the Central Government in terms of the scheme of the
said Act. Moreover, Section 15 of the UA(P) Act requires the use of
violence and force, which crucial requirement is silent in the present
case, therefore, the Charges under Section 17, 18, 20 and 21 of the
UA(P) Act cannot be sustained.
21. He further contended that the appellant is sought to be
prosecuted in terms of Section 18 of the UA(P) Act as being a member
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of the terrorist gang, however, the said organization is not indicted at
all. This approach of the prosecution by not prosecuting the said
organization as well as its key members, already known to the NIA,
amounts to selective and ‘pick and choose’ prosecution against the
appellant and forms an additional ground for grant of bail. Moreover,
the Government of India has provided the Secretary and other higher
office bearers of the NSCN(IM) accommodation and security round
the clock by the CRPF and the BSF.
22. He submitted that there is no documentary material on record to
establish that the appellant is a Cabinet Minister or Kilonser (as
colloquially called in her native place) in the alleged terrorist gang and
moreover, no ‘official act’ of the appellant as being the Cabinet
Minister has been brought on record by the prosecution. There is no
substantive evidence to show that the appellant’s business in the name
of AJ Agency, which was a legitimate business providing transport,
car security, garage services, was a facade in order to secure money
for the NSCN(IM). Further, the prosecution has failed to bring any
evidence on record that suggests that the supplementary activity of
money lending done by the appellant was done with an intention to
further the alleged terrorist activities by the said organization.
23. The learned counsel submitted that the NIA has failed to place
any evidence on record pointing out the role of the appellant in the so
called terrorist gang, except alleging that her husband was involved in
the said organization.
24. He contended that there is no money trail leading to any of the
channels operated by the NSCN(IM), and the allegations being
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completely false, fabricated and unsupported by any material
evidence.
25. He further submitted that the NIA has failed to show that there
are any reasonable grounds for the accusations against the appellant to
indicate them as being prima facie true, except that she was carrying a
cash amount of Rs. 72 lakhs on 17.12.2019, and is married to
Phungthing Shimrang, who is only a member of Steering Committee
for Indo-Naga peace talks and is not a part of the conspiracy of terror
funding, as alleged by the prosecution. He further contended that the
prosecution is basing its case on recovery of money which may, at
least, tantamount to possession of unaccounted cash and at best, to
extortion, but it cannot be construed to be a terrorist activity.
26. He also submitted that this Court is governed by the
Constitutional principles and in a case like the present, where the
prosecution has miserably failed to conclude the trial of the case, this
Court, without resorting to the merits of the case, may grant bail to the
appellant so as to protect her Fundamental Right to Personal Liberty.
In such case, the prosecution should not oppose bail, even on the
ground that the offence is grievous as it has failed in its duty to
provide a speedy trial to the appellant.
27. The appellant, the learned counsel vehemently submitted, has
been languishing for almost 4 and a half years in jail, without
prosecution presenting evidence against her and that the case is at the
early stages of prosecution evidence, wherein more than 170 witnesses
have been cited by the prosecution across 2 Chargesheets, and the
majority of the witnesses are from Nagaland and Manipur and only 33
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witnesses have been examined and approximately 100 witnesses are
yet to be examined. He further submitted that the prosecution itself is
not in a position to specify the time limit within which it would
conclude its case and in such a state of uncertainty, the appellant
cannot be made to sacrifice her liberty and precious years of her life
by remaining in jail. Moreover, the appellant has no criminal
antecedents and has been falsely implicated in the case. The learned
counsel, thus, submitted that it is a fit case where the appellant should
be enlarged on bail as bail is the rule, whereas jail is the exception,
and she is ready to abide by any conditions to be imposed on her by
this Court.
28. The learned counsel further submitted that Section 43-D(5) of
the UA (P) Act does not oust the applicability of Code of Criminal
Procedure (CrPC). The proviso to Section 437 is also applicable even
in cases involving offences under the Special Acts. In the present case,
the appellant is a woman and otherwise, has no prior antecedents,
therefore, she is entitled to bail in the special circumstances by virtue
of proviso to Section 437 of CrPC. Reliance for which was placed on
the decisions in Devki Nandan Garg vs. ED (Bail Appln. 540/2022
decided on 26.09.2022), Kewal Krishan Kumar vs. ED (Bail Appln.
3575/2022 decided on 17.03.2022) and Komal Chadha vs. SFIO (Bail
Appln. 1740/2022 dated 21.12.2022)
29. To sum up, the learned counsel urged that in exercise of its
powers under the Constitutional jurisdiction, this Court has to consider
(i) the long period of incarceration of the appellant and, (ii) the right
under Article 21 of the Constitution, which cannot be permitted to be
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infringed, denying the right of a speedy trial to the appellant
specifically, when the prosecution is clueless about the time period,
when the trial would conclude, (iii) the prosecution fails to place on
record sufficient evidence to support the alleged serious accusations,
(iv) the prosecution is yet to establish that NSCN(IM) is a terrorist
gang/organization.
30. Learned counsel, to strengthen his pleas, placed reliance on the
following decisions:
1. Shoma Kanti Sen vs State of Maharashtra (2024) 6 SCC 591
2. Vernan vs State of Maharashtra (2023) SCC OnLine SC 885
3. Javed Gulam Nabi Sheikh vs State of Maharashtra Crl. A. 2787/2024
dated 03.07.2024
4. Sheikh Javed Iqbal vs State of Uttar Pradesh Crl. A. 3173/2024 on
13.08.2024
5. Himansh @ Himanshu Verma vs Enforcement Directorate SLP (Crl) No.
2438/2024 dated 08.07.2024
6. State of M.P. vs Sheetla Sahai &Ors. (2009) 8 SC 617
7. Sanjay Jain vs Enforcement Directorate (Bail application 3807/2022
dated 07.03.2024)
8. Dr. Bindu Rana vs. SFIO [Bail Appln. 3643 / 2022 decided on
20.01.2023]
9. Ashish Mittal vs. SFIO [Bail Appln. 251 / 2023 decided on 03.05.2023]
10. Ramesh Manglani vs. ED vs. CBI [Bail Application No. 3611/2022
decided on 30.05.2023]
11. Union of India vs. KA Najeeb [2021 3 SCC 713]
12. Ashim vs. NIA [2022 1 SCC 695]
13. Satender Kumar Antil vs. CBI [2022 10 SCC 51].
14. Ashim vs. National Investigation Agency [2022 1 SCC 695]
15. Sagar Tatyaram Gorkhe vs. State of Maharashtra [2021 3 SCC 725]
16. Shaheen Welfare Association vs. Union of India [1996 2 SCC 616]
17. Mohd. Hakim vs. NIA [Crl. A. 90 / 2021 decided on 06.10.2021]
18. R. Vasudevan vs. CBI [Bail Application No.2381/2009 decided on
14.01.2010]
19. Moti Lal Basak vs. State of NCT of Delhi [Bail Application No.
3909/2021 decided on 17.02.2023]
20. CP Khandelwal vs. ED [Bail Appln. 2470 / 30 2022 decided on
23.02.2023]
21. People‟s Union For Civil Liberties and Anr. Vs. Union of India (2004 9
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SCC 580)
22. A.K.Roy vs. Union of India and Ors. (1982 1 SCC 271)
23. Maneka Gandhi vs. Union of India (1978) 1 SCC 248.
24. Angela Harish Sontakke vs. State of Maharashtra [2021 3 SCC 723]
SUBMISSIONS OF THE RESPONDENT:
31. Per contra, Ms. Shilpa Singh, learned Special Public Prosecutor
on behalf of the respondent, while placing reliance on the
investigations carried out by the NIA, submitted that a huge quantity
of ammunition and other incriminating evidence have been recovered
at the behest of the appellant. She submitted that the appellant has
failed to assign any reasons for having opened 20 bank accounts with
her real name i.e. Alemla Jamir as well as her false identities such as
Mary Shimrang & Atula Tonger, with the intention of funneling and
layering the extortion money of NSCN(IM).
32. Ms. Singh submitted that the accused persons, including the
appellant, had connived and established a sophisticated network of
terrorizing businessmen through the armed cadets of the ‘Naga Army’,
thereby creating a systematic mechanism of collection of extortion/tax
money for terrorist funding. The business of the appellant in the name
of A.J. Agency is part of the modus operandi adopted by her to extort
money from Eastern Motors, Imphal. Moreover, there is no whisper of
the business of poultry farming in which the appellant is claimed to be
involved.
33. She submitted that, there is sufficient material collected by the
NIA to show the direct involvement of the appellant in commission of
the offences of which she is accused of, relying upon which the
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learned ASJ had framed the Charges against the appellant on finding
prima facie evidence on record.
34. She submitted that the appellant failed to satisfy the ‘triple test’
for grant of bail. First, the appellant is facing Charges for serious
offences which are punishable upto life imprisonment. Secondly, the
appellant is a flight risk as her husband, Phungthing Shimrang, is an
absconding accused in the present case and has fled to China. In these
circumstances, if the appellant is released on bail, there is a higher
likelihood that she may escape from Justice Delivery System and will
further partake in facilitating the terrorist activities. Thirdly, the
appellant is a highly influential person who holds the high rank of a
Kilonser (Cabinet Minister) in the terrorist gang NSCN(IM) and there
is every possibility that she will tamper with the evidence and
intimidate the witnesses in the present case who are mainly natives of
Nagaland, so much so that one of the prosecution’s witnesses, that is
PW-14, has already turned hostile to the prosecution case.
35. She further submitted that another faction of NSCN that is
NSCN-K has already been declared an unlawful association and a
terrorist organization under the UA(P) Act, 1967.
36. Insofar as the submission of the appellant that there is a delay in
conclusion of the trial is concerned, learned Special Public Prosecutor
submitted that the trial is proceeding speedily and that the prosecution
is earnestly trying for the conclusion of its evidence at the earliest.
Further, the learned ASJ has already assigned three days in a week to
record the evidence so as to ensure a speedy disposal of the case. She
submitted that out of total cited 183 prosecution witnesses in the
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Chargesheet, after pruning the list, now out of remaining 109
witnesses, 35 witnesses have been examined by the prosecution.
Moreover, many of the witnesses are formal witnesses and their
evidence should be concluded in a short span of time. To further cut
down the list of remaining witnesses, the learned Special Public
Prosecutor submitted, the NIA has filed an application in the Special
NIA Court, seeking admission and denial of relevant and relied upon
documents by the prosecution. In case, the appellant admits to the
documents, the list of witnesses will be further cut down. Therefore,
the prosecution is aware that under no circumstances, the Fundamental
Right of the appellant to speedy trial is to be compromised, however,
keeping in view the allegations as well as the incriminating evidence
collected against the appellant, it is imperative that the right of the
prosecution to establish its case should also not be curtailed.
37. Further opposing the appeal, she vehemently submitted that the
Criminal Appeal filed by the Co-accused No. 2, Masasasong Ao,
appellant’s brother-in-law, who has lesser role than that of the
appellant before this Court, which raised identical grounds of Appeal
on dismissal of his Bail application by the learned ASJ, Special
Courts, NIA, as in the present appeal, has already been decided and
dismissed by the Coordinate Bench of this Court vide its detailed
Judgment dated 13.05.2024, therefore, the present appeal is also liable
to be dismissed.
38. Learned Special Public Prosecutor also submitted that the NIA
is entrusted to investigate the matters which are allotted to them by the
MHA, in accordance with the provisions of the NIA Act, therefore, in
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such cases, initially an FIR is lodged and after the case is allotted and
investigation is taken over by the NIA, the case is re-registered as
Registered Case (RC) number. Thus, the plea of the appellant that the
NIA is making an endeavour to undertake selective prosecution by not
prosecuting the head of the said terrorist gang is baseless. Moreover,
she submitted, the NIA is also prosecuting other members of the
NSCN(IM) in similar cases before different Courts.
39. She further submitted that the predecessor of the James Jamir,
Anthony Ningkhan Shimray, the then Army Chief of NSCN(IM), who
was, while the prosecution evidence was going on in another NIA
case, released on bail. However, to no surprise he jumped bail, and
was consequently declared a proclaimed offender. Thereafter, the
appellant’s husband became the Army Chief and is also absconding.
40. It was submitted that the reliance placed by the appellant on
various judgments cited on her behalf are misplaced as most of the
decisions are distinguishable on their facts. Even the reference made
to the case of KA Najeeb (supra) is misplaced, as in the said case the
trial had not commenced, the list of witnesses was over 250 and the
appellant therein had been in jail for over 8 years. She submitted that
the present case stands on a different factual footing. In the present
case, she submitted, the appellant was apprehended in December,
2019. Thereafter in early 2020, the Covid Pandemic ensued and the
Chargesheet was filed in June, 2020 and even the trial had duly
commenced and the Charges were framed in September, 2022.
41. She further submitted that also the reliance by the appellant on
the case of Moti Lal Basak (supra), is misplaced as it is also
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distinguishable on facts as the main accused persons were neither
arrested nor chargesheeted, unlike the scenario in the present case.
42. Moreover, she submitted, the witnesses in the case like the
present are hard to summon and they fear to depose given the
immense influence and atmosphere of terror, thus, these conditions are
adverse to the prosecution and to the Court. Further, these witnesses
hail from Dimapur, Nagaland, therefore, it is an impediment for the
witnesses to travel all the way to Delhi to depose in a trial and go back
and live a happy life in Nagaland.
43. In support of her pleas, the learned Special Public Prosecutor
placed reliance on the following decisions:
Gurwinder Singh vs. State of Punjab, (2024) 5 SCC 403,
decided on 07.02.2024
National Investigation Agency vs Zahoor Ahmad Watali,
(2019) 5 SCC 1
Buredi Narayana vs State of Jharkhand (2022) 0 Supreme
(Jhk) 1220.
Jai Kishan Sharma vs NIA & Anr. CRAPL 3/2020 (2022) 0
Supreme (Gau) 1120
44. In rebuttal, as far as the respondent’s submission is that since
the Charges have been framed, the trial will be further expedited and
therefore, the attempt to secure bail should be rejected, learned
counsel for the appellant reiterated that there are 187 witnesses, out of
which 33 have been examined and not even a single witness provided
any testimony to the prejudice or detriment of the appellant. He placed
reliance on the decision of Rup Bahadur Magar vs State of West
Bengal, SLP (CRL) 11589/2024 dated 02.09.2024 and submitted that
bail cannot be denied solely on the ground of trial being expedited.
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45. He further contended that only for the reason that the co-
accused is absconding, therefore, the bail be denied to the appellant, is
erroneous, as it is the authorities who do not have the wherewithal to
take the absconding accused into custody. Reliance was placed on
Sebil Elanjimpally vs State of Orissa, SLP (Crl.) 3518/2023 dated
18.05.2023.
46. He submitted that it cannot be trite in law that on account of
denial of bail to the co-accused, as a matter of natural corollary, the
bail to the appellant be also denied, who is languishing in jail for
nearly 5 years.
47. Learned counsel submitted that strong emphasis has been
placed on the decision in Gurwinder Singh (supra) whereas, the said
judgement has already been dealt with and analyzed in the subsequent
decision in Sheikh Javed Iqbal (supra), also on which the appellant
has placed reliance on. Moreover, the decision in Gurwinder Singh
(supra) was subjected to a review on the ground that it is in conflict
with the decision in KA Najeeb (supra). The Supreme Court in review
held that the same has been decided on its own facts and therefore, he
contended that the constitutional ethos flow from KA Najeeb (supra).
48. Learned counsel submitted that the respondent attempted to
contend that the witnesses are in fear, however, this argument cannot
be sustained as it has never been brought to the notice of the Special
Court that any of the witnesses are in fear. Moreover, the identities of
the witnesses are concealed and only certain portions of their
statements under Section 161 of the CrPC are provided. Nonetheless,
there is a Witness Protection Scheme in place and it is the job of the
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investigating authority to provide protection to the said witnesses, if at
all they are in fear or threat.
49. He submitted that the argument canvassed by the respondent
does not hold water that the NSCN-K finds mention in the Schedule of
UA(P) Act with the expression ‘all formations’, therefore by
extension, the NSCN(IM) is also a terrorist organization under the
said Schedule. He submitted that these are two distinct organizations
and inclusion of one will not automatically include the other as well,
therefore, the reliance placed on the said Schedule is misplaced and
erroneous.
50. Further placing reliance on the decision of Javed Gulam Nabi
Sheikh (supra), the learned counsel submitted in that case, the accused
was in custody for 4 years and only 80 witnesses were to testify, while
in the present case, appellant has been in jail for about 5 years and 180
witnesses in total are to testify and there is no likelihood of conclusion
of trial in near future, therefore, the appeal be allowed and the
appellant be granted regular bail.
ANALYSIS AND FINDINGS
51. We have considered the submissions on behalf of the parties
and perused the record.
52. The prosecution’s case stems from the recovery of cash
amounting to Rs. 72 Lakhs from the appellant, which was allegedly
handed over to her on the directions of Mr. Muivah, General Secretary
of the NSCN(IM) to be taken to Dimapur, Nagaland to further the
terrorist operations by the alleged terrorist gang NSCN(IM). The case
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was originally registered as an FIR bearing no. 228/2019 registered by
the Special Cell, Delhi Police, and the appellant was arrested on
18.12.2019. Thereafter, the investigation was taken over by the NIA in
compliance of the order of MHA, and the case was re-registered as RC
No. 26/2019/NIA/DLI. The Chargesheet was filed by the NIA on
11.06.2020 arraying the appellant as A1, her brother-in-law as A2, and
her husband as A3, and subsequently, the learned ASJ vide Order
dated 07.10.2022 framed the Charges in the present case against the
appellant under Sections 120B, 384, 471 IPC and Sections 17, 18, 20
and 21 of UA(P) Act as well as Section 25 of the Arms Act.
53. To appreciate the submissions made on behalf of the parties, to
begin with, it will be apposite to refer to the findings of the learned
ASJ vide Impugned Order dated 31.05.2024, while deciding the
second bail application of the appellant, the relevant extracts whereof
read as under:-
“10. In the case of Gurwinder Singh (Supra), Hon‟ble
Supreme Court of India has, inter alia, held that “As
already discussed, 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 clear unequivocal pronouncement by
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for being admitted in bail on account of time taken in
trial. Therefore, this argument on behalf of accused can
also not be accepted.
11. Further, there is no change in circumstance since
dismissal of first application on behalf of accused and
hence, there is no occasion to re-visit the said decision.
12. A principle of law laid down by Hon’ble Supreme
Court of India in the case of Gurwinder Singh (Supra) on
the issue of bail under UA(P) Act is that bail in cases
under UA(P) Act should be rejected as rule. Above
discussion shows that accused while seeking bail could
not point material on record or applicability of decision
in another case in present matter as well and falls short
to cross the bridge of twin conditions stipulated u/s
43(d)(5) ofUA(P) Act.
13 Hence, in view of the above discussion, present bail
application of accused/applicant Alemla Jamir @ Mary
Shimrang @ Atula Ronger is dismissed. Order dasti.”
54. From the Impugned Order, what emerges is that the learned
ASJ primarily dismissed the second bail application of the appellant
on the ground that, as the Charges in the present case were framed
against the appellant, making it evident that there is sufficient material
on record, the ground of delay in view of the grave accusations against
the appellant could not be considered. During the course of the
arguments, it was brought to our notice by the learned counsel for the
appellant that an appeal against the Orders dated 15.09.2022 and
07.10.2022 relating to framing of Charges has been preferred and
therefore, he submitted that the learned ASJ has erroneously observed
that the Order on Charge has attained finality, and on basis of such
finding, rejected the bail application. In addition, the learned ASJ did
not find any change in circumstance warranting for grant of bail in
favour of the appellant since the first bail application was rejected by
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it.
55. At this stage, it may be noted that the NIA Act is a Special
Legislation, catering to investigation and prosecution of offences
affecting the sovereignty, security and integrity of India, amongst
other things outlined in the said piece of Legislation. NIA is a special
agency and the Central Government is empowered to direct the NIA to
investigate a given case where the offence committed pertains to one
of the scheduled offences under the NIA Act. Moreover, Special
Courts have been constituted under the said Act to adjudicate such
matters and it also mandates that the Special Court be held on a day to
day basis, and to have precedence of matters under the NIA over the
trials of other cases and if necessary, the latter cases be kept in
abeyance.
56. In this background, it would now be apposite to reproduce the
Section 43D of the UA(P) Act to set the stage for adjudication of the
present appeal, relevant provisions thereof read as under:
“43D. Modified application of certain provisions of the
Code
(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 Prosecutor has
been given an opportunity of being heard on the
application for such release:
Provided that such accused person shall
not be released on bail or on his own bond if
the Court, on a perusal of the case diary or the
report made under section 173 of the Code is of
the opinion that there are reasonable grounds
for believing that the accusation against such
person is prima facie true.
(6) The restrictions on granting of bail specified in
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subsection (5) is in addition to the restrictions under
the Code or any other law for the time being in force on
granting of bail.
(7) Notwithstanding anything contained in sub-sections
(5) and (6), no bail shall be granted to a person
accused of an offence punishable under this Act, if he is
not an Indian citizen and has entered the country
unauthorisedly or illegally except in very exceptional
circumstances and for reasons to be recorded in
writing.”
(Emphasis Supplied)
57. The aforesaid provision has been examined in various decisions
of the Supreme Court as well as Coordinate Benches of this Court. In
a recent decision in the case titled Sheikh Javed Iqbal (supra), the
Apex Court observed that an undertrial has a fundamental right to a
speedy trial, which is traceable to Article 21 of the Constitution of
India. If the alleged offence is a serious one, it is all the more
necessary for the prosecution to ensure that the trial is concluded
expeditiously. While referring to its decision in the case titled Javed
Gulam Nabi Sheikh (supra), Shaheen Welfare Association (supra),
and Angela Harish Sontakke (supra), the Supreme Court observed as
under:
“42. This Court has, time and again, emphasised that
right to life and personal liberty enshrined under Article
21 of the Constitution of India is overarching and
sacrosanct. A constitutional court cannot be restrained
from granting bail to an accused on account of restrictive
statutory provisions in a penal statute if it finds that the
right of the accused-undertrial under Article 21 of the
Constitution of India has been infringed. In that event,
such statutory restrictions would not come in the way.
Even in the case of interpretation of a penal statute,
howsoever stringent it may be, a constitutional court has
to lean in favour of constitutionalism and the rule of law
of which liberty is an intrinsic part.”
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58. The Apex Court further held:
“In the given facts of a particular case, a constitutional
court may decline to grant bail. But it would be very
wrong to say that under a particular statute, bail cannot
be granted. It would run counter to the very grain of our
constitutional jurisprudence. In any view of the matter,
K.A. Najeeb¹ being rendered by a three-Judge Bench is
binding on a Bench of two Judges like us.”
(Emphasis supplied)
59. The Supreme Court in the case of Zahoor Ahmad Shah Watali
(supra) has laid down the parameters on which the grant of bail is to
be tested under UA(P) Act, the relevant extract whereof, are as under:
“21. Before the rival submissions, it is apposite to state
the settled legal position about matters to be considered
for deciding an application for bail, to with:
i. whether there is any prima facie or reasonable
ground to believe that the accused had
committed the offence,
ii. the nature of gravity of the charge,
iii. the severity of the punishment in event of
conviction,
iv. the danger of accused absconding, or fleeing if
released on bail
v. Character, behaviour, means, position and
standing of accused
vi. likelihood of offence being repeated
vii. reasonable apprehension of witness being
tampered with and
viii. danger of course of justice being tweeted by grant
of bail
x
x
25. A priori, the exercise to be undertaken by the Court at
this stage – of giving reasons for grant or non-grant of bail
– is markedly different from discussing merits or demerits
of evidence. The elaborate examination or dissection of
the evidence is not required to be done at this stage. The
Court is merely expected to record a finding on the basis
of broad probabilities regarding the involvement of the
accused in the commission of the stated offence or
otherwise.”
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60. Relevantly, the Supreme Court in Gurwinder Singh (supra)
observed as under:-
“18. The conventional idea in bail jurisprudence vis-à-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) CrPC –
„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 justifications [materials on record]. This
standard can be contrasted with the standard of „strong
suspicion‟, which is used by Courts while hearing
applications for „discharge‟. In fact, the Supreme Court in
Zahoor Ahmad Watali has noticed this difference, where it
said:
“In any case, the degree of satisfaction to be
recorded by the Court for opining that there are
reasonable grounds for believing that the accusation
against the accused is prima facie true, is lighter
than the degree of satisfaction to be recorded for
considering a discharge application or framing of
charges in relation to offences under the 1967 Act.”
20. In this background, the test for rejection of bail is
quite plain. Bail must be rejected as a „rule‟, if after
hearing the public prosecutor and after perusing the final
report or Case Diary, the Court arrives at a conclusion
that there are reasonable grounds for believing that the
accusations are prima facie true. It is only if the test for
rejection of bail is not satisfied – that the Courts would
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proceed to decide the bail application in accordance with
the „tripod test‟ (flight risk, influencing witnesses,
tampering with evidence). This position is made clear by
Sub-section (6) of Section 43D, which lays down that the
restrictions, on granting of bail specified in Subsection
(5), are in addition to the restrictions under the Code of
Criminal Procedure or any other law for the time being in
force on grant of bail.
21. On a textual reading of Section 43 D(5) UAP Act, the
inquiry that a bail Court must undertake while deciding
bail applications under the UAP Act can be summarised in
the form of a twin-prong test:
1) Whether the test for rejection of the bail is
satisfied?
1.1 Examine if, prima facie, the alleged
„accusations‟ make out an offence under
Chapter IV or VI of the UAP Act
1.2 Such examination should be limited to case
diary and final report submitted under Section
173 CrPC;
2) Whether the accused deserves to be enlarged on
bail in light of the general principles relating to grant
of bail under Section 439 CrPC („tripod test‟)? On a
consideration of various factors such as nature of
offence, length of punishment (if convicted), age,
character, status of accused etc., the Courts must ask
itself:
2.1 Whether the accused is a 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
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Section 439 CrPC 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 partake in, in their
application of the bail limitations under the UAP Act. On
a perusal of paragraphs 23 to 29 and 32, the following 8-
point propositions emerge and they are summarised as
follows:
• Meaning of „Prima facie true‟ [para 23] : 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.
• Degree of Satisfaction at Pre-Chargesheet, Post
Chargesheet and Post-Charges Compared [para
23] : 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 of charge. In that situation, the
accused may have to undertake an arduous task to
satisfy the Court that despite the framing of charge,
the materials presented along with the charge-sheet
(report under Section 173 CrPC), do not make out
reasonable grounds for believing that the accusation
against him is prima facie true. Similar opinion is
required to be formed by the Court whilst
considering the prayer for bail, made after filing of
the first report made under Section 173 of the Code,
as in the present case.
•Reasoning, necessary but no detailed evaluation
of evidence [para 24] : The exercise to be
undertaken by the Court at this stage–of giving
reasons for grant or non-grant of bail–is markedly
different from discussing merits or demerits of the
evidence. The elaborate examination or dissection ofSignature Not Verified
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the evidence is not required to be done at this stage.
• Record a finding on broad probabilities, not
based on proof beyond doubt [para 24]:”The Court
is merely expected to record a finding on the basis of
broad probabilities regarding the involvement of the
accused in the commission of the stated offence or
otherwise.”
• Duration of the limitation under Section 43D(5)
[para 26] : The special provision, Section 43-D of
the 1967 Act, applies right from the stage of
registration of FIR for the offences under Chapters
IV and VI of the 1967 Act until the conclusion of the
trial thereof.
• Material on record must be analysed as a
„whole‟; 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.”
61. We must herein itself note that by an Order dated 16.07.2024,
the Supreme Court disposed of the Review petition filed against the
above judgment, observing that the decision in the said case was based
on the facts and circumstances unfolded and held as under:-
“1) This Review Petition has been filed seeking to
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and law. As facts have been duly taken note of, we
do not find any reason to interfere with the
Judgment passed. On the question of law, reliance
has been placed on the decisions of this Court in
KA Najeeb v. Union of India, (2021) 3 SCC 713
and Vernon v. State of Maharashtra, (2023) SCC
OnLine SC 885 and our decision is based on the
facts and circumstances unfolded.
2) Accordingly, the Review Petition stands dismissed.”
(emphasis supplied)
62. Recently, this Court in the case of Jagtar Singh Johal vs.
National Investigation Agency (2024) SCC OnLine Del 6504,
considered Section 43-D(5) of the UA(P) Act. The relevant
observations of this Court are reproduced hereinbelow:
“79. From the record, at this stage, there are
reasonable grounds to believe that the Appellant
was not an innocent person, but was prima facie
associated with the KLF. He had knowledge of the
KLF and its activities and the charges have, in fact,
been framed against him under Section 302 read
with 1208 of IPC and Sections 16, 17, 18, 18A and
20 of the Act. The framing of charges shows that
the Petitioner has a higher threshold to cross. In
Gurwinder Singh (Supra) the framing of charges is
held to create a strong suspicion/presumptive
opinion as to the existence of the factual
ingredients constituting the offences alleged
against the accused. The observations of the
Supreme Court in Gurwinder Singh (Supra) are set
out herein below:
“Degree of Satisfaction at Pre-Chargesheet, Post
Chargesheet and Post- Charges Compared [para
23]: 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 of
charge. In that situation, the accused may have to
undertake an arduous task to satisfy the Court that
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under Section 173 CrPC), do not make out
reasonable grounds for belleving that the
accusation against him is prima facle true. Similar
opinion is required to be formed by the Court
whilst considering the prayer for ball, made after
filing of the first report made under Section 173 of
the Code, as in the present case.”
At this stage, there are grounds to believe
that the allegations against the Appellant are prima
facie true. At the time when the Punjab and
Haryana High Court had granted interim ball to
the Appellant i.e., 15th March 2022, which was not
interfered with by the Supreme Court, the charges
were not yet framed. The charges were framed in
RC. No. 25/2017 on 3rd August 2022 and in RC.
No. 27/2017 on 15th October 2022 respectively. As
held in Gurwinder Singh (supra) the framing of
charges changes the considerations of bail in such
cases, as a very strong suspicion exists.”
63. Thus, what emerges from the aforesaid decisions is that the
Right to life and personal liberty under Article 21 of the Constitution
is paramount. If the Court finds that the rights of the accused have
been infringed under Article 21 of the Constitution, it is not deprived
of the power to grant Bail. However, in the given facts of a particular
case, a Constitutional Court may decline to grant Bail. Moreso, the
position of law is also well settled that the accused shall not be
released on bail if the allegations are prima facie true. The onus being
stricter on the appellant when the Charges have already been framed
in a given case. The Supreme Court has also laid down the ‘twin-
prong test’ wherein the first test pertains to whether the test for
rejection for bail are sufficient and whether the test for rejection was
satisfied. Thereafter, the other prong requires to apply the ‘tripod test‟
considering the parameters of flight risk, influencing of witnesses and
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tampering of evidence.
64. The Apex Court in Gurwinder (supra) has elaborated the test
for rejection of bail as laid down by it in Zahoor Ahmad Shah Watali
(supra) which have been noted hereinabove. Relevantly, the Court has
to examine the documents/materials which are a part of the
Chargesheet to adjudicate whether there are reasonable grounds to
believe that the allegations against the appellant are prima facie true.
65. We may also note that in Sheikh Javed Iqbal (supra), the
Supreme Court had enquired from the parties as to the total number of
witnesses as well as those examined and had observed as under:
“18. As per the impugned order, evidence of only
two witnesses have been recorded. In the course of
hearing, the Bench had queried learned counsel for
the parties as to the stage of the trial; how many
witnesses the prosecution seeks to examine and
evidence of the number of witnesses recorded so
far. Unfortunately, counsel for either side could not
apprise the Court about the aforesaid. On the
contrary, the learned state counsel sought for time
to obtain instructions.”
66. The Supreme Court in the aforesaid case, while granting bail,
had distinguished Gurwinder Singh (supra) by observing as under:
“…but in Gurwinder Singh, the trial was already
underway and that twenty two witnesses including
the protected witnesses have been examined. It was
in that context, the two Judge Bench of this Court
in Gurwinder Singh observed that mere delay in
trial pertaining to grave offences cannot be used as
a ground to grant bail.”
67. The present appeal, therefore, ought to be considered in the
light of the aforementioned binding precedents and guidelines with the
facts and circumstances of the present case, as emerging from the
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record. We may now proceed to apply the aforesaid tests to the facts
of the present case. In this background, we may note the role of the
appellant, as mentioned in the Chargesheet, which reads as under:
“Role in Crime:
A-1 is occupying the post of Kilonser (Cabinet
Minister) in the terrorist gang NSCN (IM) which is
running a parallel government in Nagaland under
the nomenclature of Government of People’s
Republic of Nagalim (GPRN) with various
ministries and departments and with a full –
fledged Naga Army having sophisticated weaponry
and detailed organizational structure and chain of
command. She along with A-2, A-3 and others had
set up a systematic mechanism of terrorising
common citizens and businessmen with the
instrument of the Naga Army and thereby
collecting extortion money and thereby raising the
terrorist fund. A-1 along with A-2 and A-3 and
others were also involved in growing the terrorist
fund through various means such as purportedly
giving out loans at exorbitant rates of interest.
During investigation, evidence collected during the
house search of A-1 and other evidences collected
clearly establish that A-1 ,A-2, A-3 in furtherance
of conspiracy raised and collect terrorist funds
with the intention of committing terrorist acts.
Evidences collected during investigation reveal
that A-1, and A-3 along with others were in the
process of collecting technical know- how to
fabricate IEDs/bombs.”
68. The investigation carried out by the NIA unraveled that the
NSCN(IM) is a terrorist gang with sophisticated weaponry and also
that it runs a parallel government. The appellant is accused of being a
member of the said terrorist gang by being its Kilonser (Cabinet
Minister) and her call records and searches from her matrimonial
residence in Dimapur, Nagaland revealed that numerous (more than
20) phones, satellite and cellular, storage devices such as Hard Disks,
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pendrives, etc, live ammunitions, bullet proof jackets etc. and other
such incriminating evidence were unearthed and it was opined by the
Forensic experts that the same contained information regarding
fabrication of IEDs/Bombs. The Laboratory analysis further revealed
that there are multiple incriminating documents of the terrorist gang
NSCN(IM) such as images of sophisticated arms and ammunition,
Hebron Camp and the Civil Headquarter of Government of People’s
Republic of Nagalim (GPRN)/NSCN(IM) etc.
69. The appellant’s brother-in-law (A2) and her husband (A3) have
both been named accused in the Chargesheet filed by the NIA, though
A3 has not been chargesheeted. The investigation revealed that A2 is a
member of the NSCN(IM) and he withdrew money from the accounts
of the appellant even post her arrest. A3 is stated to be the
Commander-in-Chief of the said organization and is absconding,
having fled to China. The investigation further revealed that the
appellant had created fraudulent identities in the name of Mary
Shimrang and Atula Tonger, apart from Alemla Jamir, further, she
possessed passports in these names, as is evident from the
Chargesheet. The foregoing investigation revelations and the fact that
the appellant has means to procure passports using fake identities go
to establish that she is a flight risk.
70. The appellant, has been alleged to be a highly influential
person, holding a high position of the NSCN(IM) and with the
assistance of her associates, is in a position to influence the witnesses
and tamper with the evidence, the likelihood of the same cannot be
ruled out given the gravity of offences she is charged with.
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Specifically, when it has been brought to our notice by the learned
Special Public Prosecutor that PW14 has turned hostile.
71. Most importantly, this Court vide Order dated 13.05.2024 in
CRL.A. 244/2023 titled Masasasong Ao vs. National Investigation
Agency had declined to grant bail to the A2 namely Masasasong Ao,
who has been a part of the same conspiracy as alleged against the
appellant. The identical argument that the NSCN(IM) has not so far
been declared a terrorist organization or a terrorist gang and that in
view of Ceasefire Agreement, Framework Agreement and various
MOUs, the NSCN(IM) is not a terrorist gang/organization, did not
find favour with the Coordinate Bench while dismissing the appeal of
Masasasong Ao, A2. The relevant extracts are set out hereinbelow:-
“21. Since the matter is pending adjudication, we would
not like to make any comment about the contents of the
aforesaid agreement. Fact, however, remains that even if
there is such agreement, it does not give any right to any
person, much less to A-2, to conceal the funds meant for
any terrorist gang. Even in the aforesaid ceasefire
agreement, which the appellant herein has strongly relied
upon, the Government of India had expressed its concern
about the forcible collection of money and it was admitted
by NSCN that such activities would be stopped. Moreover,
the agreement was with the NSCN and it seems that now
there is a split and the organization in question before us
is not NSCN but NSCN (IM)
22. It also really does not matter whether NSCN (IM) has
not so far been declared a terrorist organization or a
terrorist gang. Such declaration would never be a pre-
requisite for a prosecution like this. The allegations are
very specific and as per the case of the prosecution, there
is a criminal conspiracy amongst all the accused for
raising and collecting terror funds for NSCN (IM) and A-2
is clearly acting in furtherance of such conspiracy. He
had opened bank accounts for concealing and diverting
such money required and making all the efforts to causeSignature Not Verified
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disappearance of extortion money and trail of evidence
with intention to screen himself.
23. Thus, as per bare allegations, A-2 is concealing the
terrorist fund in a fraudulent manner. He cannot be
permitted to run away from the clutches of law by making
a bald assertion that bank accounts, though were in his
names, but being managed and controlled by his co-
accused. The appellant, being a government servant,
should have been mindful of the severity of the financial
transactions happening in such accounts. Being a
government employee, he cannot be permitted to go scot
free by merely verbally contending that he had no concern
with these accounts as these were managed by his co-
accused.
24. We have also been taken through statements of
various witnesses recorded under Section 161 Cr.P.C. and
we have no hesitation in holding that there are clear-cut
allegations suggesting his involvement and complicity for
committing offence punishable under Chapter IV of
UAPA. Therefore, we do not find any merit in the present
appeal and the appeal is accordingly dismissed.”
72. Pertinently, the Order dated 13.05.2024 was challenged in the
Special Leave Petition bearing no. 10268/2024 titled Masasosang Ao
vs. National Investigation Agency and the Supreme Court while
dismissing the petition as withdrawn noted as below:
“1. After arguing the matter for sometime and on our
expressing reservation in entertaining the present petition,
the learned senior counsel for the petitioner seeks
permission to withdraw the present petition.
2. Permission to withdraw, as sought for, is granted.
3. The special leave petition is dismissed as withdrawn.”
73. We find that the allegations against the appellant are specific of
her being involved in a criminal conspiracy along with A2 and A3 for
raising and collecting lots of funds from businessmen in Dimapur by
creating a systematic mechanism for collecting extortion money for
the NSCN(IM), for which she had opened, as many as 20 bank
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accounts, some in fictitious names also. The appellant, along with
other accused persons, was acting in a surreptitious manner with an
endeavour to leave no trail of evidence behind in relation to extortion
of money in order to carry out operations of the alleged terrorist gang
NSCN(IM). Further, incriminating evidences in form of electronic
devices as well as arms & ammunitions were also recovered from her
residence. We have also gone through the statements of various
witnesses recorded by the NIA under Section 161 of the CrPC and
according to the learned Special Public Prosecutor, out of the 35
examined witnesses, 18 witnesses have testified and supported the
case of the prosecution against the appellant and some of the witnesses
have been classified as ‘protected witnesses’. At this stage, we also
cannot ignore the alleged recoveries made from the residence of the
appellant pointing towards her involvement in the offences she has
been charged under.
74. The decisions of Devki Nandan Garg (supra) and Kewal
Krishan Kumar (supra) are distinguishable on facts inasmuch as they
pertain to offences charged under the Prevention of Corruption Act,
1988 and Prevention of Money Laundering Act, 2002, for which
punishment are lesser when juxtaposed with UA(P) Act. Moreover, in
Kewal Krishan Kumar (supra), the Chargesheet qua the applicant
therein had not been filed and earlier, he was also granted an interim
bail, which was not misused by him. These decisions were particularly
based on applicants being „sick‟ or „infirm‟, in view of the welfare
provision provided for in the aforesaid Special Statute for grant of
bail.
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75. In Komal Chadha (supra), the matter pertained to offences
punishable under Companies Act, 2013 and moreover, the Charges
were yet to be framed in the said case. Notably, the analogous proviso
to Section 437 CrPC [Now, 480 of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS)] is also provided in the proviso to Section 45(1)
of the Companies Act. However, no such proviso is provided for
under the UA(P) Act. The reliance placed on the judgment in
Satender Kumar Antil (supra), it may be noted that in the said case,
the Apex Court with regard to the Section 437 of CrPC had observed
that the application of this welfare provision may not be considered
favourably in all cases as the application thereof will depend on the
facts and circumstances of a given case and what is required, is the
consideration of this proviso amongst other factors. Moreover, the
severity of the Charges in the present case being grave and severe in
nature, as against the ones applicants were charged with in the
aforesaid cases, the decisions relied upon by the appellant are not
applicable to the facts of the present case.
76. We have also gone through the other decisions relied upon by
the learned counsel for the appellant and find that they do not come to
his aid as in most of the cases, the Charges were not framed and the
trial was also in the nascent stages as well as they turn on their own
peculiar facts and circumstances of the case thereby not being
applicable to the facts of the present case.
77. Notably, the trial in the present case is being fast tracked
thereby reducing the delay. The learned Special Judge is also making
an endeavour to increase the pace of the trial as is evident from the
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dates of hearing being given. Moreso, the list of witnesses has also
been pruned down by the prosecution, making an attempt to conclude
the trial as early as possible. It is also to be noted that Justice hurried
is Justice buried. We also cannot lose sight of the element that quality
of evidence that is to be adduced before the trial cannot be
compromised.
78. In light of the aforesaid and considering the nature of the
allegations against the appellant and the evidence brought on record,
coupled with the facts that the husband of the appellant is absconding
and the bail of the co-accused Masasosang AO was also rejected by
the Coordinate Bench of this Court and was unsuccessfully challenged
before the Supreme Court, we do not find any merit in the present
appeal.
79. Accordingly, the present appeal is dismissed. However, we
make it clear that nothing observed hereinabove would tantamount to
be an expression on merits of the allegations against the appellant.
These observations are tentative and have been made for the purpose
of consideration of bail alone.
SHALINDER KAUR, J
NAVIN CHAWLA, J
JANUARY 13, 2025
KM
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