KEKHRIESATUO TEP ETC.versusNATIONAL INVESTIGATION AGENCY

                          [2023] 3 S.C.R. 523                               523


                    KEKHRIESATUO TEP ETC.                                   A
                                   v.
             NATIONAL INVESTIGATION AGENCY
               (Criminal Appeal Nos. 415-417 of 2019)
                           APRIL 12, 2023                                   B
           [B. R. GAVAI AND SANJAY KAROL, JJ.]
       Unlawful Activities (Prevention) Act, 1967 – ss. 39, 40, 43D(5)
– Bail under –Special Judge found that appellants had not voluntary
succumbed to the demands of the organization and investigating
agency admitted that accused persons were cooperating in                    C
investigation –Bail was granted by the Special Judge – However,
High Court reversed the order of the Special Judge – Before the
Supreme Court, appellants contended that they were forced to make
payments – Held: There are twin requirement under sub-section (5)
of s. 43D – First one being that the public prosecutor has to be
given an opportunity of being heard – Second one, that the Court            D
is of the opinion that there are reasonable grounds for believing
that the accusation against such a person is prima facie true –In the
instant case, the first requirement was met – As far as second
requirement is concerned, a perusal of Sections 39 and 40 of the
said Act would itself reveal, that for an act to constitute as an offence   E
within the meaning of that section, it has to be done with the intention
of furthering the activities –The Court has to differentiate between
those who commit extortion on their own volition and those who are
coerced to pay by compulsion –The Special Judge found that the
prosecution was not able to show that the accused had voluntarily
contributed to the funding of the outlawed outfits to execute their         F
nefarious activities – Prima facie opinion of Special Judge cannot
be said to be perverse – Impugned orders quashed and set aside.
      Allowing the appeal, the Court
      HELD: 1. The additional requirement, as provided under
                                                                            G
subsection (5) of Section 43D of the said Act is twin. The first
one being that the public prosecutor has to be given an opportunity
of being heard. The second one, that the Court is of the opinion
that there are reasonable grounds for believing that the
accusation against such a person is prima facie true. [Para
14][529-C]                                                                  H
                                  523
524            SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A            2. Undisputedly, in the present case, the first requirement
      has been complied with. Insofar as the second requirement with
      regard to Court arriving at a satisfaction that the accusation
      against such persons is prima facie true is concerned, this Court
      would not like to go into the elaborate discussion of the evidence,
      inasmuch as that may hamper the rights of the parties at the stage
B
      of trial. [Para 15][529-D-E]
            3. However, it may be noted that a perusal of Sections 39
      and 40 of the said Act, as have been interpreted by this Court,
      would show that a prima facie satisfaction has to be arrived that
      the acts which are committed by the accused have been committed
C     with intention to further the activity of a terrorist organization.
      [Para 17][529-G]
            4. The Special Judge has himself distinguished cases of
      the persons who have indulged into extortion for furthering the
      activities of the organization and the persons like the present
D     appellants, who were government servants, and compelled to
      contribute the amount. This Court, therefore, find that it cannot
      be said that the prima facie opinion, as expressed by the Special
      Judge, could be said to be perverse or impossible. [Para 19][530-
      B]
E           Thwaha Fasal v. Union of India (2021) SCC OnLine
            SC 1000; National Investigation Agency v. Zahoor
            Ahmad Shah Watali (2019) 5 SCC 1 : [2019] 5 SCR
            1060; Ranjitsing Brahhmajeetsing Sharma v. State of
            Maharashtra and Another (2005) 5 SCC 294 : [2005]
F           3 SCR 345 – referred to.
                            Case Law Reference
      [2019] 5 SCR 1060                 referred to           Para 13
      [2005] 3 SCR 345                  referred to           Para 13
G           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      Nos. 415-417 of 2019.
            From the Judgment and Order dated 08.05.2018 of the High Court
      of Gauhati in CRLA Nos. 416, 417 and 419 of 2017.

H
  KEKHRIESATUO TEP ETC. v. NATIONAL INVESTIGATION                               525
                     AGENCY

      With                                                                      A
      Criminal Appeal No. 418 of 2019.
      R. Basant, Sr. Adv., Nandadevi Deka, Savyasachi Rawat, M.
Padhi, Anand Varma, Advs. for the Appellants.
      V. Mohana, Sr. Adv., Rajat Nair, Ms. Suhasini Sen, Harish Pandey,         B
Vatsal Joshi, Vinayak Sharma, Arvind Kumar Sharma, Ms. Bhavya
Pande, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      B. R. GAVAI, J.                                                           C
      1. The Criminal Appeal Nos.415-417 of 2019 and Criminal Appeal
Nos.418 of 2019 challenge the judgments and orders dated 8 th May
2018 and 3rd September 2018 respectively, passed by the learned Division
Bench of the Gauhati High Court, vide which the bail granted to the
appellants herein came to be cancelled.                                         D
       2. The appellants, in Criminal Appeal Nos.415-417 of 2019, came
to be arrested on 13th October 2017, whereas the appellant, in Criminal
Appeal Nos.418 of 2019, came to be arrested on 25 th March 2018.
       3. The appellants in Criminal Appeal Nos.415-417 of 2019 and
Criminal Appeal Nos.418 of 2019, moved the learned Special Court,               E
National Investigating Agency, Nagaland, Deemapur (hereinafter
referred to as ‘the NIA’), for grant of bail. Vide orders dated 17 th October
2017 and 28th March 2018 respectively, the said applications came to be
allowed.
      4. Being aggrieved thereby, the NIA filed appeals before the              F
Guwahati High Court. The Division Bench, vide the impugned orders,
allowed the appeals and reversed the orders dated 17th October 2017
and 28th March 2018.
       5. While issuing notice, vide orders dated 28th May 2018 and 20th
September 2018, this Court also stayed the judgments and orders passed          G
by the Division Bench of the Guwahati High Court.
       6. We have heard Shri R. Basant, learned Senior Counsel for the
appellants and Smt. V. Mohana, learned Senior Counsel appearing for
the respondent/NIA.
                                                                                H
526               SUPREME COURT REPORTS                            [2023] 3 S.C.R.


A            7. Shri Basant submits that the learned Special Judge, after finding
      that the act of the appellants of succumbing to the demands of the
      organization was not voluntary and that the investigating agency itself
      had admitted that the accused persons were voluntarily cooperating with
      the investigation, had granted bail. He submits that, in these circumstances,
      it was not appropriate on the part of the High Court to have interfered
B
      with the orders of the learned Special Judge and deprived the appellants
      herein of their liberty. He further submits that this Court in the case of
      Thwaha Fasal v. Union of India1, has held that even at the stage of
      grant of bail, the prosecution has to prima facie establish that there was
      mens rea for committing the crime punishable under Sections 39 and 40
C     of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred
      to the “said Act”). He further submitted that even though the appellants
      were arrested and subsequently released, their services are not suspended
      and they are still continuing in their respective jobs.
             8. Smt. V. Mohana submits that the learned Division Bench of the
D     High Court has rightly reversed the orders of grant of bail. She submits
      that the appellants themselves have admitted that they have paid the
      money to the organization. She further submits that, from the documents
      which were submitted with the supplementary charge-sheet, it is clear
      that the receipts are signed in the hand writings of the appellants. She,
      therefore, submits that there is a prima facie material to connect the
E     present appellants with the crime in question.
            9. Smt. Mohana further relies on the provisions of sub-section (5)
      of Section 43D of the said Act to buttress the submission that since the
      prima facie case is made out, the appellants were not entitled to bail
      and as such, the High Court has rightly reversed the orders.
F
            10. It will be relevant to refer to the following observation of the
      learned Special Judge, while granting them bail:-
                  “I have considered this peculiar position which has a marked
               difference between the extortionist and the tax payers who are
G              under constraint. It is also in all correctness by the learned Special
               PP, NIA to argue that the petitioners should take recourse to
               protection of the law enforcing agencies. However, in my
               considered view the position of the accused who are compelled
               to pay tax are precarious and there is no doubt that the law

H     1
          2021 SCC OnLine SC 1000
KEKHRIESATUO TEP ETC. v. NATIONAL INVESTIGATION                           527
            AGENCY [B. R. GAVAI, J.]

   enforcing agencies may not always be there for their protection        A
   and penalty for violation which always looms is eminent. Under
   this given facts we are drawn to the cardinal principle of criminal
   jurisprudence which postulates that there can be no crime when
   there is no mens rea. It is apparent to see that the accused persons
   have undoubtedly committed offence but it is an offence which is
                                                                          B
   prompted by element of threat. We are drawn to the Criminal
   Appeal No. 4 (K) of 2017 NIA vs. Victo Swu which is relied
   upon by the Special PP, NIA where the submission of the learned
   PP NIA is recorded as “Thereafter the IA. PP NIA submitted
   that this document as a piece of evidence which would prove that
   the respondent/accused was regularly extorting money for               C
   NSCN(K) from Govt. officers and other individuals” this is
   explicitly clear that the present accused are victims of the
   extortionists, such as Victo Swu and there is the imperative duty
   cast upon the court to differentiate between this two individuals –
   those who commit extortion on their own volition and those who
   are compelled to pay tax by compulsion, this will serve the ends       D
   of justice. The mental exercise which is cast upon the special
   Judge to examine whether there is a prima facie true case in the
   instant case thus falls short of the requirement to tie the hands of
   the Court to consider bail in such cases. The prosecution has not
   been able to show that indeed the accused have been voluntarily        E
   contributing to the funding of the outlawed outfits to execute their
   nefarious activities. There is also noting emanating from the C.D.
   brought for the perusal of the court that the accused persons are
   sympathizers of the extortionist or U.G. factions, nor is there any
   evidence to show that the accused persons are active members
   of the outlawed organizations. There must be a line drawn which        F
   differentiate the likes of accused Victo Swu and the present
   accused persons. In the present facts the balance is more inclined
   to show that the accused are victims of circumstances and to
   hold them on equal footing with the terrorist would be grave
   injustice. Unless it can be shown that the accused are actually        G
   sympathizers of the outlawed outfits and they are depriving fund
   on their own volition to sustain the outlawed organisations it would
   be prejudiced to conclude that there is a prima facie true evidence.
   The fact that the accused/petitioners have not taken security and
   have not reported the matter to the authority cannot equate them
   as terrorists.                                                         H
528               SUPREME COURT REPORTS                        [2023] 3 S.C.R.


A                 Hence, I derive at the conclusion that there is no prima fade
               true evidences against the accused persons to show that they are
               sympathizers and they have been voluntarily contributing to the
               outlawed organizations. I rule that the investigation agency have
               also no hindrances at all in securing any information from the
               accused persons as the NIA have admitted that the accused
B
               persons and voluntarily cooperating with the investigation by
               surrendering all relevant documents which wee needed by the
               investigation. The accused persons also being Govt. servants and
               having deep root in the society there is no chance for them to
               jump bail.”
C             11. A perusal of the aforesaid would clearly reveal that even,
      according to the prosecution case, accused Nos.1 to 3, who were office
      bearers of the organization were regularly extorting money from various
      government servants and other individuals. The learned Special Judge
      has rightly observed that the Court has to differentiate between those
D     who commit extortion on their own volition and those who are coerced
      to pay by compulsion. The Court has found that the prosecution has not
      been able to show that the accused have been voluntarily contributing to
      the funding of the outlawed outfits to execute their nefarious activities.
      The Special Judge also found that there was no material placed on record
      to show that the appellants were sympathizers of the extortionists or
E     U.G. factions. The Court further found that the investigating agency
      itself had admitted that the accused persons were voluntarily cooperating
      with the investigation.
             12. The learned Judges of the Division Bench found that the
      learned Special Judge having itself recorded that the accused-appellants
F     had committed the offence, albeit prompted by an element of threat
      having regard to the provisions under Section 43D (5) of the said Act,
      the prayer for bail could not have been acceded.
            13. The provisions of Section 43D (5) of the said Act have been
      considered by this Court in the case of Thwaha Fasal (supra). The
G     Court, after reproducing the provisions of Section 43D (5) and after
      considering the judgment of this Court in the cases of National
      Investigation Agency v. Zahoor Ahmad Shah Watali2 and Ranjitsing
      Brahhmajeetsing Sharma v. State of Maharashtra and Another3,
      2
          (2019) 5 SCC 1
H     3
          (2005) 5 SCC 294
  KEKHRIESATUO TEP ETC. v. NATIONAL INVESTIGATION                              529
              AGENCY [B. R. GAVAI, J.]

held that while deciding a bail petition filed by the accused against whom     A
offences under Chapter IV and VI of the said Act have been made, the
Court has to consider as to whether there are reasonable grounds for
believing that the accusation against the accused is prima facie true. It
will be worthwhile to note that this Court, in the case of Zahoor Ahmad
Shah Watali (supra), has distinguished the words ‘not guilty’ as used in
                                                                               B
TADA, MCOCA and NDPS Act as against the words ‘prima facie’ in
the present Act. The Court has held that a degree of satisfaction required
in a case of ‘not guilty’ is much stronger than the satisfaction required in
a case where the words used are ‘prima facie.’
       14. The additional requirement, as provided under sub-section (5)
of Section 43D of the said Act is twin. The first one being that the public    C
prosecutor has to be given an opportunity of being heard. The second
one, that the Court is of the opinion that there are reasonable grounds
for believing that the accusation against such a person is prima facie
true.
       15. Undisputedly, in the present case, the first requirement has        D
been complied with. Insofar as the second requirement with regard to
Court arriving at a satisfaction that the accusation against such persons
is prima facie true is concerned, we would not like to go into the elaborate
discussion of the evidence, inasmuch as that may hamper the rights of
the parties at the stage of trial.                                             E
       16. It would further reveal that not only the charge-sheet but
supplementary charge-sheet has been filed. The Forensic Science
Laboratory (for short, “FSL”) report show that the receipts are in the
hand writing of the appellants. Be that as it may, it is not even the case
of the appellants that they did not make the payment. It is their contention   F
that they were forced to make the payment. As such, their custodial
interrogation is not warranted.
       17. However, it may be noted that a perusal of Sections 39 and 40
of the said Act, as have been interpreted by this Court, would show that
a prima facie satisfaction has to be arrived that the acts which are           G
committed by the accused have been committed with intention to further
the activity of a terrorist organization.
       18. A perusal of Sections 39 and 40 of the said Act would itself
reveal, that for an act to constitute as an offence within the meaning
of that Section, it has to be done with the intention of furthering the
                                                                               H
530                SUPREME COURT REPORTS                      [2023] 3 S.C.R.


A     activities. This Court, in the case of Thwaha Fasal (supra), while
      considering the provisions of Section 39 of the said Act, has also taken
      a similar view.
             19. The learned Special Judge has himself distinguished cases of
      the persons who have indulged into extortion for furthering the activities
B     of the organization and the persons like the present appellants, who were
      government servants, and compelled to contribute the amount. We,
      therefore, find that it cannot be said that the prima facie opinion, as
      expressed by the learned Special Judge, could be said to be perverse or
      impossible.
C           20. An interference by an Appellate Court and particularly in a
      matter when liberty granted to a citizen was being taken away would be
      warranted only in the event the view taken by the Trial Court was either
      perverse or impossible. On this limited ground, we find that the appeals
      deserve to be allowed.

D           21. Therefore, the impugned orders are quashed and set aside
      and the appeals are allowed.
            22. However, it is made clear that any observation made
      hereinabove shall not be construed an expression on the merits of the
      matter.
E           23. Pending application(s), if any, shall stand disposed of.

      Ankit Gyan                                                 Appeals allowed.



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