Prima Facie case against the accused governs the Grant of bail under Section 43(5)D of UAPA: Supreme Court of India

While considering the grant of bail under Section 43D (5) in The Unlawful Activities (Prevention) Act, 1967, it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. This auspicious judgment was passed by the Supreme Court of India in the matter of SUDESH KEDIA V UNION OF INDIA [CRIMINAL APPEAL NO. 314-315 of 2021] by Honourable Justice L. Nageswara Rao and Honourable Justice S. Ravindra Bhat.

The Appellant is accused of committing offenses under Sections 120B, 414, 384, 386, and 387 of the Indian Penal Code,1860 read with Sections 17, 18, and 21 of the Unlawful Activities (Prevention) Act, 1967 along with Sections 25 (1B) (a), 26 and 35 of the Arms Act and Section 17 (1) (2) of the Criminal Law Amendment Act. The application filed for grant of bail was dismissed by the Special Judge NIA at Ranchi and the High Court too dismissed his criminal appeal and upheld the order of the Special Judge. Thus, he filed this appeal.

The facts of the case are in the FIR it was alleged that one Vinod Kumar and others were operatives of a terrorist gang and they were extorting levy from coal traders, transporters, and contractors. In exercise of powers conferred under Section 6 (5) and Section 8 of the National Investigation Agency Act, 2008, the Central Government directed NIA to take up investigation in view of the gravity of the offenses involving the seizure of arms and ammunitions and huge amounts of cash. The members of TPC, according to the charge-sheet, had been extorting money from businessmen in Amrapali and Magadh coal mining areas and had also been obstructing the smooth supply of transport of coal.

During the investigation, The National Investigation Agency submitted a supplementary charge sheet in which the modus operandi of collecting levy from contractors, traders, transporters, etc. was given. Another supplementary charge-sheet was filed in which it was mentioned that the accused was engaged in transporting coal on behalf of GVK Power and Godavari Commodities and had paid levy from his current account. Thus, he colluded with the members of the terrorist gang (TPC) and was a party to a criminal conspiracy to raise funds for a terrorist gang. Thus, the HC rejected the bail application since Prima facie they were satisfied that it is a case of terror funding.

The Supreme Court observed that “Section 43-D (5) mandates that a person shall not be released on bail if the court is of the opinion that there are reasonable grounds for believing that the accusations made are prima facie true. Apart from the other offenses, the Appellant is accused of committing offenses under Section 17, 18, and 21 of the UA (P) Act. The Appellant is accused of providing funds to a terrorist organization. According to the prosecution, he has entered into a conspiracy with the other members of the organization to strengthen and promote the activities of the organization. Further, an amount of Rs. 9,95,000/- was seized from the Appellant’s house, making him liable for punishable under Section 21 of the Act.”

The Court relied on National Investigation Agency v. Zahoor Ahmad Shah Watali to consider the parameters for exercise of the power under Section 43 (5) D and opined that, “Appellant is entitled to bail and that the Special Court and High Court erred in not granting bail to the Appellant” since, “The material on record shows that the Appellant paid levy/extortion amount to the terrorist organization and Payment of extortion money does not amount to terror funding. Appellant paid money to the members of the TPC for the smooth running of his business. Prima facie, it cannot be said that the Appellant conspired with the other members of the TPC and raised funds to promote the organization.”

The judgment of the High Court was set aside and the Appellant was directed to be released on bail subject to the satisfaction of the Special Court since the court mentioned that they were “not satisfied that a prima facie case has been made out against the Appellant relating to the offences alleged against him.”

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