AJAY JAIN 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. 14/1/2022 passed by the Special Judge (NIA Act), Kanker, DistrictUttar Bastar Kanker in Bail Application No.17/2022 by which the appellant's application under Sec. 439 of the CrPC seeking bail for offences under Ss. 10,13,17,38(1)(a)(2) and 40 of the Unlawful Activities Prevention Act, 1967 (hereinafter called as 'UAPA'), Sec. 8(2)(3)(5) of the Chhattisgarh Vishesh Jan Surksha Adhiniyam, 2005 (hereinafter called as 'Act of 2005') and Ss. 120B, 201 and 149/34 of the IPC 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 appellantAjay Jain and one Komal Verma. 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 the appellant on 23/4/2020. It is also case of the prosecution that the present appellant and Komal Verma were working as subcontractor for road construction of PMGSY Road work originally given to M/s Landmark Royal Engineering Private Limited, FIR No.9/2020 was registered and they were chargesheeted for the aforesaid offences on 8/9/2020 and thereafter charges have been framed on 5/8/2021 and out of 100 listed witnesses, only 13 witnesses have been examined and seizure witness namely Mantesh Dhruw and Rajesh Sahu have also been examined. The appellant herein has 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 impugned order finding that the appellant and one coaccused Arun Jain provided Rs.2,50,000.00 to naxalites for their alleged illegal activities and thereby rejected the same, against which, this criminal appeal has been filed.

(3.) Mr.Siddharth Shukla, learned counsel appearing for the appellant, would submit that the alleged offence registered against the appellant 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 further 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 appellant was 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 the appellant herein 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 charge sheet is taken as whole along with other material on record that the appellant was 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,