SHAILENDRA BHADOURIYA Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This criminal appeal under Sec. 21(4) of the National Investigation Agency Act, 2008 is directed against the order dtd. 30/3/2022 passed by the Special Judge (NIA Act), Kanker, DistrictUttar Bastar Kanker in Bail Application No.79/2022 by which the appellants application under Sec. 439 of the CrPC seeking bail for offences under Ss. 149, 201 and 120B/34 of the IPC, Sec. 8(2)(3)(5) of the Chhattisgarh Vishesh Jan Surksha Adhiniyam, 2005 (hereinafter called as 'Act of 2005') and Ss. 10,13,17,38(1) (2), 40 and 22(A)(C) of the Unlawful Activities Prevention Act, 1967 (hereinafter called as 'UAPA') has been rejected finding no merit.

(2.) As per case of the prosecution, on 24/3/2020 on the basis of secret information, the respondent searched a vehicle bearing registration No.CG 07 AH 6555 driven by Tapas Kumar Palit. In that search, 95 pairs of shoes, green black printed cloths for uniform, 2 bundles of electric wires each of 100 meter, LED lens, walki talki and other articles were found in his possession (Tapas Kumar Palit). Seizure was made accordingly. It is further case of the prosecution that these articles were to be supplied by Tapas Kumar Palit to naxalites in order to support their illegal and disruptive activities. It is further case of the prosecution that said Tapas Kumar Palit was working with Rudransh Earth Movers Road Construction Company, a partnership firm of appellant No.2Komal Verma and one coaccused Ajay Jain. It is further case of the prosecution that Tapas Kumar Palit provided information that articles were being provided on the instructions/consent of Ajay Jain and Komal Verma, who were given consent/permission to do so by Varun Jain, Director of M/s Landmark Royal Engineering (India) Private Limited. It is also the case of the prosecution that the accused were providing funds as well to naxalites though no cash was recovered on the said date, but the police arrested all of them including appellant No.1Shailendra Bhadouriya on 4/5/2020 and appellant No.2Komal Verma on 23/4/2020. It is also case of the prosecution that appellant No.2Komal Verma is partner of Rudransh Earth Movers Road Construction Company and appellant No.1 Shailendra Bhadouriya was working as supervisor in that firm. The appellants herein have filed an application under Sec. 439 of the CrPC for grant of bail before the Special Court under NIA Act, which has been rejected by the Special Judge (NIA) Act, Kanker by the impugned order, against which, this criminal appeal has been filed.

(3.) Mr.T.K.Tiwari, learned counsel for the appellants, would submit that the present case is covered by the decision of this Court rendered in Criminal Appeal No.328 of 2022 (Ajay Jain v. State of Chhattisgarh), decided on 4/5/2022 in which criminal appeal filed by coaccused Ajay Jain has been allowed and he was released on bail. He would further submit that appellant No.2Komal Verma is partner of Ajay Jain of Rudransh Earth Movers Road Construction Company and appellant No.1Shailendra Bhadouriya was working as supervisor of that firm and no incriminating article has been seized from them. Appellant No.1 is in jail since 4/5/2020 and appellant No.2 is in jail since 23/4/2020. He would further would submit that the alleged offence registered against the appellants under Ss. 10 and 13 of the UAPA falls in Part III of the UAPA, thus, the Bar of granting bail under Sec. 43(D) 5 of the UAPA would not be applicable. He would also submit that Sec. 17 deals with punishment for raising funds for the terrorist Act and Sec. 22A and 22C fixes the responsibility of any offence committed under the said Act. Thus, the said Sec. does not constitute any separate offence. He would also submit that Sec. 38(1)(2) deals with offence for being a member of the terrorist organization and Sec. 40 of the UAPA deals with offence for raising funds for a terrorist organization. He would also submit that charge under Sec. 8(2)(3)(5) of the Act of 2005 deals with membership, management of a banned organization, which is not even supported by the chargesheet, which categorically says that the appellants were providing money and articles in lieu of smooth functioning of the road construction contracts. In any case, there is no bar like Sec. 43D(5) of the UAPA in the Act of 2005. He would further submit that the main accusation against coaccused Ajay Jain is that he paid levy/extortion amount to naxalites for undertaking road construction work in Kanker, but in the light of decision of the Supreme Court in the matter of Sudesh Kedia v. Union of India (2021) 4 SCC 704, payment of extortion money to a banned/terror organization does not amount to terror funding and even if the chargesheet is taken as whole along with other material on record that the appellants were paying the extortion amounts for letting them work smoothly in the said area. At the best, it will constitute extortion money only as held by the Supreme Court in Sudesh Kedia (supra) that payment of extortion money to naxalites/banned organization as a return for smooth functioning of business does not amount to terror funding under the UAPA and relied upon paras13.1, 13.2 and 13.3 of Sudesh Kedia's case (supra). He would further submit that the appellants have been implicated in this case merely on the basis of confessional statement recorded during the investigation by the respondent, which is inadmissible in law in view of provisions contained in Ss. 25 and 26 of the Indian Evidence Act. He would also submit that not a single incriminating material i.e. money, cloths, wireless etc. were recovered from the appellants on the basis of coaccused confession. He would submit that mere association with a terrorist organization as a member is not sufficient to attract Sec. 38 of the UAPA as held by the Supreme Court in the matter of Thwaha Fasal v. Union of India 2021 SCC OnLine SC 1000. The respondent has miserably failed to show any incriminating evidence which can remotely suggest that the appellants were raising fund for naxalites being a member of the said organization and was continuously participating with them in their meetings with the intention to further activity of terror organization and as such, charge under Ss. 17, 38 and 40 of the UAPA is misconceived, as such, the impugned order is liable to be set aside and the appellant is entitled to be released on regular bail.