Vernon v. the State of Maharashtra & Anr.
ANIRUDDHA BOSE, J.
The appellants before us assail two judgments of the High Court
of Judicature at Bombay rejecting, in substance, their prayers for bail.
Both the applications were filed on 27th October 2018 after the Special
Judge, Pune under the Unlawful Activities (Prevention) Act, 1967 (“1967
Act”) had dismissed their bail plea. The decisions of the High Court
were delivered on the same date i.e. 15 th October 2019.
2. We shall deal with both the appeals in this judgment as the
detention of the appellants was on the basis of the same First Information
Report (“FIR”) and the chargesheet also contains the same Sections in
respect of which offences are alleged to have been committed by them.
These are Sections 121, 121A, 124A, 153A, 505(1)(b), 117, 120B read
with Section 34 of the Indian Penal Code, 1860 (“1860 Code”) and
Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the 1967 Act. Wherever
there are distinguishing features vis-à-vis the individual ap pellants in
relation to the nature of evidence against them rel ied on by the
879
Investigating Agency, we shall refer to them separately. In the subject-
case, initially investigation was conducted by the regular law enforcement
agency, being the State police. The Central Government, in exercise of
their power under Section 6(5) read with Section 8 of the National
Investigation Agency Act, 2008 directed the National Investigation Agency
(“NIA”) to take up investigation of the case by an order passed on 24th
January 2020. The case was re-registered at the NIA Poli ce Station,
Mumbai as RC No.01/2020/NIA/MUM. Before us, the appeals have
been contested by Mr. Nataraj, learned Additional Solicitor Ge neral,
appearing for the NIA.
3. The proceedings against the appellants have their origin in an
FIR, bearing CR No.4/2018 dated 8 th January 2018 registered with
Vishrambaug Police Station, Pune, Maharashtra. The informant is one
Tushar Ramesh Damgude. The incident which prompted filing of the
FIR was in relation to a programme at Shaniwar Wada, Pune he ld on
31st December 2017. The organisers for this event- Elgar Parishad, were
activists of Kabir Kala Manch, a cultural organisation.There were various
events in connection with the said programme, which according to the
prosecution, were provocative in nature and had the effect of creating
enmity between caste groups leading to violence and loss of life, as also
state wide agitation. There were books kept at the v enue, which,
according to the maker of the FIR were also provocative . There were
incidents of violence, arson, and stone pelting near Bhima-Kore gaon
and six members of Kabir Kala Manch and other associates were named
as accused in the FIR. The appellants did not feature in the F IR. The
scope of the investigation was subsequently expanded, as we find in the
judgment giving rise to Criminal Appeal No.639 of 2023 on 17th April
2018 the Pune Police conducted searches at the residences of ei ght
individuals, i.e. (1) Rona Wilson of Delhi, (2) Surendra Gadling of Nagpur,
(3) Sudhir Dhawale of Mumbai, (4) Harshali Potdar of Mumb ai, (5)
Sagar Gorkhe (also referred to as Sagar Gorakhe by the prosecution) of
Pune, (6) Deepak Dhengale of Pune, (7) Ramesh Gaichor of Pune and
(8) Jyoti Jagtap of Pune. The residences of Shoma Sen and Mahesh
Sitaram Raut, who have also been implicated in the same c ase, were
searched on 6th June 2018. It has been argued by the NIA that during
the searches, electronic devices and documents apart from other materials
were recovered and the seized articles were sent to Fore nsic Science
Laboratory (“FSL”) for analysis. Cloned copies thereof, according to
the prosecution, revealed incriminating materials. The appellants’ names
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
did not also figure in the initial chargesheet dated 15th November 2018,
which implicated ten individuals as accused. Among them were Sudhir
Dhawale, Surendra Gadling, Shoma Sen, Mahesh Raut and Rona Wilson,
who were in detention at that point of time. Rest five accused pe rsons
were absconding at that point of time. We are informed by Mr. Nataraj
that one of the absconding accused, Milind Teltumbde, has since passed
away.
4. Searches were conducted at the residences/workplaces of the
appellants and they were arrested on the same day, i.e. on 28 th August
2018. They were initially put under house arrest and subsequently sent
to judicial custody. Case of the NIA is that various lett ers and other
materials recovered from the arrested co-accused persons including
Surendra Gadling and Rona Wilson showed appellants’ involvement with
the Communist Party of India (Maoist). This organisation has been placed
in the First Schedule to the 1967 Act as a terrorist organisa tion by a
notification dated 22nd June 2009 issued in terms of Section 2(m) of the
1967 Act. Prosecution’s case is that the appellants played an active role
in recruitment of and training for cadres of the said organisat ion and
Arun Ferreira (whom we shall refer to henceforth as AF), bei ng the
appellant in Criminal Appeal No.640 of 2023 also had role in managing
finances of that organisation. The other accused persons w ho were
detained in the third phase were P. Varavara Rao and Sudha Bharadwaj.
Among them, we are apprised by the learned senior counsel for the
appellants, Ms. Rebecca John appearing for Vernon Gonsalves (VG in
short), being the appellant in Criminal Appeal No.639 of 2023 and Mr.
R. Basant (representing AF) that, P. Varavara Rao has been enlarged
on bail by an order of this Court passed on 10 th August 2022. Sudha
Bharadwaj is on “default bail” granted by the Bombay High Court on 1st
September 2021. Petition for special leave to appeal against that order
was rejected by a three-Judge Bench of this Court on 7 th December
2021. Gautam Navlakha, as per information made available before this
Court, is under house arrest. Another supplementary chargesheet has
been submitted on 21st February 2019 by the State police implicating the
appellants, along with other co-accused persons for comm ission of
aforesaid offences under the 1967 Act and the 1860 Code. On 9th October
2020, NIA had filed a further supplementary chargesheet against, inter-
alia, Dr. Anand Teltumbde, Gautam Navlakha, Hany Babu, Sagar Gorkhe,
Ramesh Gaichor, Jyoti Jagtap, Stan Swami (since deceased) and Milind
Teltumbde (since deceased) broadly under the same provisions of t he
881
1860 Code and the 1967 Act. Barring deceased Milind Teltumbde, all
these individuals had been arrested. Among them, Dr. Anand Teltumbde
has been released on bail by the Bombay High Court and the judgment
to that effect was delivered on 18 th November 2022. The petition for
special leave to appeal against that decision has been dismi ssed by a
coordinate Bench of this Court on 25th November 2022. VG, it transpires
from his pleadings, is a writer, columnist and has been vocal on issues of
human rights, prison rights and reform of the criminal justice system. AF
has described himself as a practising Advocate of the Bom bay High
Court as also a cartoonist and a human rights activist.
5.After the arrest of the appellants, a writ petition was filed before
this Court [Writ Petition (Criminal) No. 260/2018- Romila Thapar
and Ors. -vs- Union of India and Ors. ]. One of the prayers in this
petition was for direction of immediate release of all activists arrested in
connection with the Bhima Koregaon violence. Direction was also sought
for staying any arrest until the matter was fully investigated and decided
by this Court. That writ petition was dismissed on 28th September 2018
(by a 2:1 majority). The majority view was that it was not a case of
arrest because of expression of mere dissenting views or diff erence in
political ideology of the named accused, but concerning their links with
the members of the banned organisation. At that stage, the Court did not
go into an exercise of evaluating the materials brought before it. This
finding or observation, however, cannot aid the prosecution in a regular
application for bail, the appeals in respect of which we are adjudicating.
The Court deciding on specific plea of the appellants for bail is required
to independently apply its mind and examine the materials placed before
it for determining the question of granting bail to the individual applicants.
6. As the charges against the appellants include commission of
offences under different Sections of the 1967 Act, including those coming
within Chapters IV and VI thereof, the restriction on grant of bail as
contained in Section 43D (5) of the said Act would apply in their cases.
We shall also refer to the ratio of the judgment of a three-Judge Bench
of this Court in the case of Union of India -vs- K.A. Najeeb [(2021) 3
SCC 713] while examining the appellants’ cases in the backdrop of the
aforesaid provision. In this judgment, it has been held that such statutory
restrictions, per se, do not oust the jurisdiction of the Constitutional Courts
to grant bail on grounds of violation of Part III of the Const itution of
India and it would be within the jurisdiction of the Constitutional Courts,
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
i.e., this Court and the High Courts to relax the rigours of such provisions,
where there is no likelihood of trial being completed within a reasonable
time and the period of incarceration a detenue has already unde rgone,
covers a substantial part of the prescribed sentences for the offences
with which the latter has been charged. This ratio has been relied upon
by the learned counsel for the appellants. Other authorities cited on this
point are Thwaha Fasal -vs- Union of India [2021 SCC OnLine SC
1000] and Angela Harish Sontakke -vs- State of Maharashtra [(2021)
3 SCC 723]. On general proposition of law on the aspect of grant of bail
due to delay in trial, the case of Sagar Tatyaram Gorkhe and Another
-vs- State of Maharashtra [(2021) 3 SCC 725] has been relied upon.
In course of hearing, we were apprised by the appellants’ counsel t hat
charges against the appellants are yet to be framed.
7. We have referred to the case of Dr. Anand Teltumbde, who
was added as an accused in relation to the same case on 23 rd August
2018 and has subsequently enlarged on bail. His name, according to the
prosecution, had surfaced from digital devices and other articles seized
by the police, in the expanded phase of investigation. Dr. Anand Teltumbde
had surrendered on 14th April 2020 after his plea for pre-arrest bail was
rejected. Subsequently, however, he has been released on bail.
8. Arguments have been advanced before us on the question as
to whether mere membership of a banned organisation constitutes an
offence or not. On behalf of the appellants’ reliance was placed on the
prevailing view that the same would not be sufficient to const itute an
offence under the 1967 Act or the Terrorist and Disruptive Act ivities
(Prevention) Act, 1987 (which statute also has similar provisions) unless
it is accompanied with some overt offending act. A three Judge-Bench
of this Court in the case of Arup Bhuyan -vs- State of Assam and
Another [2023 SCC OnLine SC 338] has held that if a person, even
after an organisation is declared as an unlawful association, continues to
be a member thereof, would attract penalty under Section 10 of the
1967 Act.
9. Barring Section 13, all the offences with which the appellants
have been charged with under the 1967 Act fall within Chapters IV and
VI of the said statute. This is apart from the offences under the 1860
Code. Hence, there is a duty of the Court to form an opinion on perusal
of the case diary or the report made under Section 173 of the Code of
Criminal Procedure, 1973 (“1973 Code”) that there are reasonable grounds
883
for believing that the accusations against such persons are pr ima facie
true while considering the prayer for bail, to reject prayers for bail of the
appellants. The manner in which the Court shall form such opinion has
been laid down by this Court in the case of National Investigation
Agency -vs- Zahoor Ahmad Shah Watali [(2019) 5 SCC 1]. It has
been held in this judgment:-
“23. By virtue of the proviso to sub-section (5), it is the duty
of the Court to be satisfied that there are reasonable grounds
for believing that the accusation against the accused is pr ima
facie true or otherwise. Our attention was invited to the
decisions of this Court, which has had an occasion to deal
with similar special provisions in TADA and M COCA. The
principle underlying those decisions may have some be aring
while considering the prayer for bail in relation t o the
offences under the 1967 Act as well. Notably, under the spec ial
enactments such as TADA, MCOCA and the Narcotic Drugs and
Psychotropic Substances Act, 1985, the Court is require d to
record its opinion that there are reasonable ground s for
believing that the accused is “not guilty” of the a lleged
offence. There is a degree of difference between th e
satisfaction to be recorded by the Court that there are
reasonable grounds for believing that the accused i s “not
guilty” of such offence and the satisfaction to be recorded
for the purposes of the 1967 Act that there are rea sonable
grounds for believing that the accusation against such person
is “prima facie” true. By its very nature, the expression “prima
facie true” would mean that the materials/evidence colla ted
by the investigating agency in reference to the acc usation
against the accused concerned in the first information repor t,
must prevail until contradicted and overcome or dis proved
by other evidence, and on the face of it, shows the complicit y
of such accused in the commission of the stated offe nce. It
must be good and sufficient on its face to establish a given
fact or the chain of facts constituting the stated offenc e, unless
rebutted or contradicted. In one sense, the degree of
satisfaction is lighter when the Court has to opine that the
accusation is “prima facie true”, as compared to the opinion
of the accused “not guilty” of such offence as required under
the other special enactments. In any case, the degr ee of
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
satisfaction to be recorded by the Court for opining that there
are reasonable grounds for believing that the accus ation
against the accused is prima facie true, is lighter than the
degree of satisfaction to be recorded for consideri ng a
discharge application or framing of charges in rela tion to
offences under the 1967 Act. Nevertheless, we may t ake
guidance from the exposition in Ranjitsing Brahmaje etsing
Sharma v. State of Maharashtra, [(2005) 5 SCC 294 : 20 05
SCC (Cri) 1057], wherein a three-Judge Bench of this Court
was called upon to consider the scope of power of the Court
to grant bail. In paras 36 to 38, the Court observed thus :
(SCC pp. 316-17)
“36. Does this statute require that before a person is
released on bail, the court, albeit prima facie, must co me
to the conclusion that he is not guilty of such offence? Is it
necessary for the court to record such a finding? Woul d
there be any machinery available to the court to ascertai n
that once the accused is enlarged on bail, he would not
commit any offence whatsoever?
37. Such findings are required to be recorded only for the
purpose of arriving at an objective finding on the basis of
materials on record only for grant of bail and for no other
purpose.
38. We are furthermore of the opinion that the restrictions
on the power of the court to grant bail should not be pushed
too far. If the court, having regard to the materials brought
on record, is satisfied that in all probability he may not be
ultimately convicted, an order granting bail may be passe d.
The satisfaction of the court as regards his likeli hood of
not committing an offence while on bail must be constru ed
to mean an offence under the Act and not any offenc e
whatsoever be it a minor or major offence. … What would
further be necessary on the part of the court is to see the
culpability of the accused and his involvement in t he
commission of an organised crime either directly or
indirectly. The court at the time of considering th e
application for grant of bail shall consider the ques tion
885
from the angle as to whether he was possessed of th e
requisite mens rea.”
And again in paras 44 to 48, the Court observed : (SCC pp.
318-20)
“44. The wording of Section 21(4), in our opinion, does
not lead to the conclusion that the court must arrive at a
positive finding that the applicant for bail has not committed
an offence under the Act. If such a construction is placed,
the court intending to grant bail must arrive at a findin g
that the applicant has not committed such an offence. In
such an event, it will be impossible for the prosecution to
obtain a judgment of conviction of the applicant. S uch
cannot be the intention of the legislature. Section 21(4)
of MCOCA, therefore, must be construed reasonably. It must
be so construed that the court is able to maintain a delicate
balance between a judgment of acquittal and convicti on
and an order granting bail much before commencement of
trial. Similarly, the court will be required to record a finding
as to the possibility of his committing a crime after grant
of bail. However, such an offence in futuro must be an
offence under the Act and not any other offence. Since it
is difficult to predict the future conduct of an accused, the
court must necessarily consider this aspect of the matter
having regard to the antecedents of the accused, hi s
propensities and the nature and manner in which he is
alleged to have committed the offence.
45. It is, furthermore, trite that for the purpose of
considering an application for grant of bail, altho ugh
detailed reasons are not necessary to be assigned, the order
granting bail must demonstrate application of mind at least
in serious cases as to why the applicant has been granted
or denied the privilege of bail.
46. The duty of the court at this stage is not to weigh the
evidence meticulously but to arrive at a finding on the basis
of broad probabilities. However, while dealing with a
special statute like M COCA having regard to the provisions
contained in sub-section (4) of Section 21 of the Act, the
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
court may have to probe into the matter deeper so as to
enable it to arrive at a finding that the materials collected
against the accused during the investigation may not justif y
a judgment of conviction. The findings recorded by the
court while granting or refusing bail undoubtedly would
be tentative in nature, which may not have any bearing on
the merit of the case and the trial court would, th us, be
free to decide the case on the basis of evidence addu ced
at the trial, without in any manner being prejudiced thereby.
47. In Kalyan Chandra Sarkar v. Rajesh Ranjan [(200 4)
7 SCC 528 : 2004 SCC (Cri) 1977] this Court observed :
(SCC pp. 537-38, para 18)
‘18. We agree that a conclusive finding in regard to t he
points urged by both the sides is not expected of the cou rt
considering a bail application. Still one should not forget,
as observed by this Court in Puran v. Rambilas [(2001) 6
SCC 338: 2001 SCC (Cri) 1124] : (SCC p. 344, para 8)
“8. …Giving reasons is different from discussing merits
or demerits. At the stage of granting bail a detail ed
examination of evidence and elaborate documentation
of the merits of the case has not to be undertaken. …
That did not mean that whilst granting bail some reasons
for prima facie concluding why bail was being granted
did not have to be indicated.”
We respectfully agree with the above dictum of this Court . We
also feel that such expression of prima facie reaso ns for
granting bail is a requirement of law in cases wher e such
orders on bail application are appealable, more so be cause
of the fact that the appellate court has every right to know
the basis for granting the bail. Therefore, we are not in
agreement with the argument addressed by the learned counsel
for the accused that the High Court was not expected even to
indicate a prima facie finding on all points urged be fore it
while granting bail, more so in the background of the facts of
this case where on facts it is established that a large numb er
of witnesses who were examined after the respondent was
enlarged on bail had turned hostile and there are complaints
made to the court as to the threats administered by the
887
respondent or his supporters to witnesses in the case. In suc h
circumstances, the court was duty-bound to apply its mind to
the allegations put forth by the investigating agency and ought
to have given at least a prima facie finding in regard to these
allegations because they go to the very root of the right of
the accused to seek bail. The non-consideration of these vital
facts as to the allegations of threat or inducement made to
the witnesses by the respondent during the period he was on
bail has vitiated the conclusions arrived at by the High Court
while granting bail to the respondent. The other ground apar t
from the ground of incarceration which appealed to the High
Court to grant bail was the fact that a large numbe r of
witnesses are yet to be examined and there is no likelihood of
the trial coming to an end in the near future. As s tated
hereinabove, this ground on the facts of this case is also not
sufficient either individually or coupled with the period of
incarceration to release the respondent on bail bec ause of
the serious allegations of tampering with the witnesse s made
against the respondent.’
48. In Jayendra Saraswathi Swamigal v. State of T.N. (2 005)
2 SCC 13 : 2005 SCC (Cri) 481] this Court observed [(SCC
pp. 21-22, para 16)]
‘16. … The considerations which normally weigh with the
court in granting bail in non-bailable offences have been
explained by this Court in State v. Jagjit Singh [(1 962) 3
SCR 622 : AIR 1962 SC 253 : (1962) 1 Cri LJ 215]
and Gurcharan Singh v. State (UT of Delhi) [(1978) 1 SCC
118 : 1978 SCC (Cri) 41] and basically they are — th e
nature and seriousness of the offence; the characte r of
the evidence; circumstances which are peculiar to t he
accused; a reasonable possibility of the presence o f the
accused not being secured at the trial; reasonable
apprehension of witnesses being tampered with; the larg er
interest of the public or the State and other similar facto rs
which may be relevant in the facts and circumstances of
the case.’”
10.We shall first deal with the argument of the appellants that the
accusations against the appellants under the Sections which fall within
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
Chapters IV and VI of the 1967 Act cannot lead to a p rima facie
satisfaction of the Court that such accusations are true and the available
evidences at this stage do not fit the ingredients of these r estrictive
provisions. The nature of the accusations to invoke the bail-restricting
clause has been stated in the supplementary chargesheet in w hich the
appellants were implicated. The counter-affidavits also contain printouts/
copies of several letters and documents. In the case of VG, the Agency
has relied upon the statement of a protected witness who has disclosed
that he had met VG in the year 2002. Referring to a time-length between
2002 and 2007, he has stated that during that period, both VG and AF
were members of the Maharashtra State Committee of the said party. It
is also stated by the protected witness that, in 2002 VG wanted to resign
from the party but his resignation was not accepted.
11. Before embarking on this exercise, we reproduce below the
following provisions of the 1967 Act, the application of which we shall
have to examine in respect of the appellants: -
“2. Definitions.- (1) In this Act, unless the context otherwise
requires,-
xxxxxxxxxxx
(k) “terrorist act” has the meaning assigned to it i n section
15, and the expressions “terrorism” and “terrorist” shall b e
construed accordingly;
xxxxxxxxxxx
(m) “terrorist organisation” means an organisation
listed in the [First Schedule] or an organisation op erating
under the same name as an organisation so listed;
13. Punishment for unlawful activities. —(1) Whoever—
(a) takes part in or commits, or
(b) advocates, abets, advises or incites the commission o f,
any unlawful activity, shall be punishable with
imprisonment for a term which may extend to seven years,
and shall also be liable to fine.
(2) Whoever, in any way, assists any unlawful activity of any
association declared unlawful under section 3, afte r the
notification by which it has been so declared has b ecome
889
effective under sub-section (3) of that section, sh all be
punishable with imprisonment for a term which may extend to
five years, or with fine, or with both.
(3) Nothing in this section shall apply to any treaty, agr eement
or convention entered into between the Government of Ind ia
and the Government of any other country or to any
negotiations therefor carried on by any person authorised in
this behalf by the Government of India.
15. Terrorist act. — (1) Whoever does any act with intent to
threaten or likely to threaten the unity, integrity, sec urity, economic
security or sovereignty of India or with intent to strike terror or
likely to strike terror in the people or any section of the people in
India or in any foreign country,—
(a) by using bombs, dynamite or other explosive substances
or inflammable substances or firearms or other leth al
weapons or poisonous or noxious gases or other chemicals
or by any other substances (whether biological radioactive,
nuclear or otherwise) of a hazardous nature or by a ny
other means of whatever nature to cause or likely t o
cause—
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property ; or
(iii) disruption of any supplies or services essential to t he
life of the community in India or in any foreign coun try;
or
(iiia) damage to, the monetary stability of India by way of
production or smuggling or circulation of high qual ity
counterfeit Indian paper currency, coin or of any o ther
material; or
(iv) damage or destruction of any property in India or in a
foreign country used or intended to be used for the defence
of India or in connection with any other purposes of t he
Government of India, any State Government or any of their
agencies; or
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
(b) overawes by means of criminal force or the show of
criminal force or attempts to do so or causes death of any
public functionary or attempts to cause death of any pu blic
functionary; or
(c) detains, kidnaps or abducts any person and threatens to
kill or injure such person or does any other act in order to
compel the Government of India, any State Governmen t or
the Government of a foreign country or [an international or
inter-governmental organisation or any other person to do
or abstain from doing any act; or] commits a terrorist act.
[Explanation.—For the purpose of this sub-section,—
(a) “public functionary” means the constitutional
authorities or any other functionary notified in the Off icial
Gazette by the Central Government as public functionary;
(b) “high quality counterfeit Indian currency” means the
counterfeit currency as may be declared after examination
by an authorised or notified forensic authority that such
currency imitates or compromises with the key secur ity
features as specified in the Third Schedule.]
(2) The terrorist act includes an act which constit utes an
offence within the scope of, and as defined in any of the
treaties specified in the Second Schedule.
16. Punishment for terrorist act. —(1) Whoever commits a
terrorist act shall,—
(a) if such act has resulted in the death of any person , be
punishable with death or imprisonment for life, and shall
also be liable to fine;
(b) in any other case, be punishable with imprisonm ent
for a term which shall not be less than five years but which
may extend to imprisonment for life, and shall also be liable
to fine.
17.Punishment for raising funds for terrorist act. —Whoever,
in India or in a foreign country, directly or indirectly, rais es
or provides funds or collects funds, whether from a legiti mate
or illegitimate source, from any person or persons or att empts
891
to provide to, or raises or collects funds for any p erson or
persons, knowing that such funds are likely to be u sed, in
full or in part by such person or persons or by a t errorist
organisation or by a terrorist gang or by an individual terrorist
to commit a terrorist act, notwithstanding whether such fund s
were actually used or not for commission of such ac t, shall
be punishable with imprisonment for a term which shall no t
be less than five years but which may extend to imprisonment
for life, and shall also be liable to fine.
Explanation.—For the purpose of this section,—
(a) participating, organising or directing in any o f the acts
stated therein shall constitute an offence;
(b) raising funds shall include raising or collecti ng or
providing funds through production or smuggling or
circulation of high quality counterfeit Indian curre ncy; and
(c) raising or collecting or providing funds, in an y manner
for the benefit of, or, to an individual terrorist, terr orist gang
or terrorist organisation for the purpose not speci fically
covered under section 15 shall also be construed as an
offence.
18. Punishment for conspiracy, etc.—Whoever conspires or
attempts to commit, or advocates, abets, advises or incites,
directs or knowingly facilitates the commission of, a te rrorist
act or any act preparatory to the commission of a te rrorist
act, shall be punishable with imprisonment for a term which
shall not be less than five years but which may ext end to
imprisonment for life, and shall also be liable to fine.
18A. Punishment for organising of terrorist camps.—Whoever
organises or causes to be organised any camp or camps for
imparting training in terrorism shall be punishable with
imprisonment for a term which shall not be less than five years
but which may extend to imprisonment for life, and shall also
be liable to fine.
18B. Punishment for recruiting of any person or persons for
terrorist act.—Whoever recruits or causes to be recruited an y
person or persons for commission of a terrorist act sh all be
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
punishable with imprisonment for a term which shall n ot be
less than five years but which may extend to impriso nment
for life, and shall also be liable to fine.
20. Punishment for being member of terrorist gang o r
organisation.—Any person who is a member of a terrorist gang
or a terrorist organisation, which is involved in terrorist act ,
shall be punishable with imprisonment for a term which may
extend to imprisonment for life, and shall also be li able to
fine.
38. Offence relating to membership of a terrorist
organisation. —(1) A person, who associates himself, or
professes to be associated, with a terrorist organisat ion with
intention to further its activities, commits an offence re lating
to membership of a terrorist organisation:
Provided that this sub-section shall not apply where the person
charged is able to prove—
(a) that the organisation was not declared as a ter rorist
organisation at the time when he became a member or began
to profess to be a member; and
(b) that he has not taken part in the activities of the
organisation at any time during its inclusion in th e First
Schedule as a terrorist organisation.
(2) A person, who commits the offence relating to membersh ip
of a terrorist organisation under sub-section (1), shall be
punishable with imprisonment for a term not exceeding ten
years, or with fine, or with both.
39. Offence relating to support given to a terroris t
organisation.—(1) A person commits the offence relating to
support given to a terrorist organisation,—
(a) who, with intention to further the activity of a terrorist
organisation,—
(i) invites support for the terrorist organization, and
(ii) the support is not or is not restricted to provide m oney or
other property within the meaning of section 40; or
893
(b) who, with intention to further the activity of a terrorist
organisation, arranges, manages or assists in arrangin g or
managing a meeting which he knows is—
(i) to support the terrorist organization, or
(ii) to further the activity of the terrorist organization , or
(iii) to be addressed by a person who associates or professes
to be associated with the terrorist organisation; or
(c) who, with intention to further the activity of a terrorist
organisation, addresses a meeting for the purpose o f
encouraging support for the terrorist organisation or to
further its activity.
(2) A person, who commits the offence relating to s upport
given to a terrorist organisation under sub-section ( 1) shall
be punishable with imprisonment for a term not exce eding
ten years, or with fine, or with both.
40. Offence of raising fund for a terrorist organisation .—(1)
A person commits the offence of raising fund for a ter rorist
organisation, who, with intention to further the acti vity of a
terrorist organisation,—
(a) invites another person to provide money or other property ,
and intends that it should be used, or has reasonable cause
to suspect that it might be used, for the purposes of terrorism;
or
(b) receives money or other property, and intends that it should
be used, or has reasonable cause to suspect that it mig ht be
used, for the purposes of terrorism; or
(c) provides money or other property, and knows, or has
reasonable cause to suspect, that it would or might b e used
for the purposes of terrorism.
Explanation.—For the purposes of this sub-section, a
reference to provide money or other property includes—
(a) of its being given, lent or otherwise made avai lable,
whether or not for consideration; or
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
(b) raising, collecting or providing funds through
production or smuggling or circulation of high qual ity
counterfeit Indian currency.
(2) A person, who commits the offence of raising fund for
a terrorist organisation under sub-section (1), sha ll be
punishable with imprisonment for a term not exceedi ng
fourteen years, or with fine, or with both.
43D. Modified application of certain provisions of the Code.—
(1) Notwithstanding anything contained in the Code or any
other law, every offence punishable under this Act s hall be
deemed to be a cognizable offence within the meanin g of
clause (c) of section 2 of the Code, and “cognizabl e case”
as defined in that clause shall be construed accordingl y.
(2) Section 167 of the Code shall apply in relation to a case
involving an offence punishable under this Act subject to t he
modification that in sub-section (2),—
(a) the references to “fifteen days”, “ninety days” and “ sixty
days”, wherever they occur, shall be construed as references
to “thirty days”, “ninety days” and “ninety days” respectively;
and
(b) after the proviso, the following provisos shall be inserted,
namely:—
“Provided further that if it is not possible to com plete the
investigation within the said period of ninety days, the Cour t
may if it is satisfied with the report of the Public Pro secutor
indicating the progress of the investigation and the specific
reasons for the detention of the accused beyond the said
period of ninety days, extend the said period up to one hundred
and eighty days:
Provided also that if the police officer making the investigation
under this Act, requests, for the purposes of inves tigation,
for police custody from judicial custody of any per son in
judicial custody, he shall file an affidavit stating the reasons
for doing so and shall also explain the delay, if a ny, for
requesting such police custody.
895
(3) Section 268 of the Code shall apply in relation to a case
involving an offence punishable under this Act subject to t he
modification that—
(a) the reference in sub-section (1) thereof
(i) to “the State Government” shall be construed as a reference
to “the Central Government or the State Government.”;
(ii) to “order of the State Government” shall be construed as
a reference to “order of the Central Government or the Stat e
Government, as the case may be”; and
(b) the reference in sub-section (2) thereof, to ‘t he State
Government” shall be construed as a reference to “the Central
Government or the State Government, as the case may be”.
(4) Nothing in section 438 of the Code shall apply in relat ion
to any case involving the arrest of any person accu sed of
having committed an offence punishable under this Act.
(5) Notwithstanding anything contained in the Code, no person
accused of an offence punishable under Chapters IV and V I
of this Act shall, if in custody, be released on bail o r on his
own bond unless the Public Prosecutor has been give n 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 ca se diary
or the report made under section 173 of the Code is of the opinion
that there are reasonable grounds for believing that the a ccusation
against such person is prima facie true.
(6) The restrictions on granting of bail specified in sub-
section (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 citiz en
and has entered the country unauthorisedly or illeg ally except in
very exceptional circumstances and for reasons to be recorded in
writing.”
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
12.Allegations against these two appellants appear, inter-alia, from
paragraphs 17.5, 17.9, 17.10, 17.11, 17.15 17.18 and 17.19 of the first
supplementary chargesheet. These paragraphs from the ch argesheet
dated 21st February 2019 are quoted below:-
“17.5 During the investigation of this crime it emerg ed that
the activity of the accused in this was not limited to only
creating antagonism between two sections but they were also
doing other destructive acts against the country. A ccused
Sudhir Dhawale, Rona Wilson, Surendra Gadling, Mahe sh
Raut and Shoma sen had done unlawful and terrorist acts in
accordance with a pre-planned plot by and on behalf of the
banned organization C.P.I (Maoist) , a large countr y wide
conspiracy to overthrow through force of violence t he
constitutionality established democracy and adminis trative
system in the country. It has also emerged that the present
crime is also one part of this conspiracy.
Since the participation of accused No.1 Varavara Rao,
No.2 Vernon Gonsalves, No.3 Arun Ferreira, No.4 Sud ha
Bharadwaj and other accused in the said conspiracy of t he
banned organization C.P.I (Maoist) became clear, th eir
residences and those places from where evidence cou ld
possibly be obtained were searched on 28/08/2018.
17.9 It has emerged that accused No.2 Vernon Gonsalves No.3
Arun Ferreira and No.4 Sudha Bharadwaj along with ot her
accused have recruited members for the banned terro rist
organization. They are also active members of the said banne d
organization and have fulfilled the objectives of th e banned
organization by doing propaganda and dissemination through
the medium of frontal organization with the ideology of the
organization.
17.10 Accused No.2 Vernon Gonsalves has been convic ted
and sentenced by the Hon’ble Court of Session , Nagpur i n
C.R.No.10/2007 offence u/s 10,13,16,17,18,20,23,40( 2)
Unlawful Activities (Prevention) Act, 25(1-B) Arms Act, 6,9(b)
Explosives Act, 4(b), 5 Explosive Substances act 120-B, 121-
A IPC of A.T.S. Kala Chowky Police Station , Mumbai. He
has accordingly served the sentence. Accused Vernon
897
Gonsalves Unlawful Activities as member of banned
organization have been going on continuously.
17.11 During investigation of the said crime it has e merged
that I.A.P.L (Indian Association of People’s Lawyer s) is a
frontal organization of the banned organization C.P.I (Maoist)
and is working according to the organization’s direction and
orders and with its economic backing to fulfill the objec tives
of the banned organization. Accused no.3 Arun Ferre ira ,
No.4 Sudha Bharadwaj and Surendra Gadling are member s
of the said frontal organization. They along with other accus ed
have made conscious attempts to spread this frontal
organization. By doing various unlawful activities through
the medium of this frontal organization they have endangered
the stability of the country.
17.15. Thus accused nos. 01 to 04 and other accused are
members of the banned terrorist organization CPI (Maois t).
All work related to this organization is done by these accuse d
is an underground manner. It has emerged from the evidence
obtained that frontal organization which supposedly promote
democratic rights and civil liberties, such as Indi an
Association of People’s Lawyers (I.A.P.L) , Anuradha Ghandy
Memorial Committee (A.G.M.C), Kabir Kala Manch,
Persecuted Prisoners Solidarity Committee (P.P.S.C) are set
up or similar organizations are infiltrated in as s ystematic
manner and under their cover the work related to the terror ist
organization C.P.I (Maoist) is being accomplished i s an
extremely secret manner.
17.18. During the Investigation it has emerged that the accused
No.01 to 04 in this offence and other accused have w orked
as part of a pre-planned conspiracy devised by the banned
organisation C.P.I. (Maoist), a large, countrywide plot and
conspiracy to overthrow by force of violence the demo cratic
administrative system established under the country ’s
constitution. It emerged that the organisation C.P.I. (Maoi st)
and the members of the organisation in this offence have
hatched the conspiracy of this offence.
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
17.19. Accused no.1 in the said offence Varavara Ra o,
Accused Rona Wilson and Surendra Gadling along with the
Polit Bureau and Central Committee and other underground
members of the banned terrorist organisation C.P.I.( Maoist)
hatched a criminal conspiracy and obtained the participation
of the accused no.02 Vernon Gonsalves, accused no.3 Arun
Ferreira and accused no.04 Sudha Bharadwaj in the s aid
conspiracy and got them to participate as active members of
the banned C.P.I. (Maoist) organisation banned by t he
Government of India for the continuation of Unlawful Activity,
for exchange of messages, for the implementation of the g oals
and policies of the said unlawful organisation by p lanning
and convening sittings along with them as also to help the ir
unlawful activities. In same manner it has emerged that ha rd
disks, pendrives, memory cards, mobiles, etc. seized during
the house search of accused no.1 Varavara Rao, Sure ndra
Gadling and Rona Wilson contained correspondence, papers,
photographs, etc. related to the banned CPI(Maoist)
organisation as also that they attempted in different ways to
implement the goals, policies and objectives of the said
organisation. It also emerged that they attempted in differen t
ways to do acts against the country to overthrow th e
democratic and lawful administrative system through the
medium of frontal organisations established on behalf of t he
banned organisation in urban areas.”
(quoted verbatim from paperbook)
13. In the first statement, the protected witness who appear s to
have had been associated with Maoist movement claims to hav e met
VG in the year 2002 as we have already indicated. He has spoken of a
timeline between 2002 to 2007. According to him, at that time VG and
AF were members of the Maharashtra State Committee, presumably of
CPI (Maoist) organisation. This statement was recorded on 27th January
2019 by an Assistant Commissioner of Pune Police. The protected witness
has made another statement on 27th July 2020 before the police in which
he has referred to participation of AF in a seminar of Revol utionary
Democratic Front in Hyderabad in the year 2012 and VG in September
2017 by an organisation referred to as “Virasam”. These were also
broadly repeated in his statement before a Magistrate r ecorded under
899
Section 164 of the 1973 Code on 28 th July 2020. The prosecution has
also relied on statements made by one Kumarsai, who appears to have
been associated with the same organisation. Such statements appear to
have been made on 2 nd November 2018 and 23 rd December 2018. He
has stated that he had personally never seen VG but according to him,
VG was doing the work of uniting intellectuals. About AF, he is alleged
to have said that he was “intruding” in student organisations and creating
cadre, who were being sent to forests. He also claims to have met AF in
the 2003-2007 phase. The third witness, whose statements have also
been relied upon by the prosecution agency is one Sudarshan Satyadeo
Ramteke. He has referred to another Arun (Arun Bhel ke) in his
statement, whom he had met while working for an organisat ion in
Chandrapur. He also declared himself as a party ass ociate in his
statement, and claims to have had been introduced to AF by an other
person. He has alleged that AF, Milind Teltumbde and Anil Nagpure had
asked him to work with the said organisation.
14.VG has been earlier implicated in 19 cases for alleged crimes
under the 1967 Act, the Arms Act 1959, and the Explosives Act 1884.
But it has been submitted before us on his behalf that he has been
acquitted in 17 out of these 19 cases. In respect of another case , his
discharge application is pending. He was convicted in Case No.257/11
by the Sessions Judge, Nagpur under Section 25 (1B) of the Arms Act
1959, Sections 10(a)(i) and 13(1)(b) of the 1967 Act. There were charges
against him also under Section 9(B) of the Explosives Act 1884, Sections
4(b) and 5 of the Explosives Substances Act, 1908 and Sections 10
(a)(ii)(iii)(iv), 10(b), 16, 17, 18, 20 and 23 of the 1967 Act and Sections
120B and 121A of 1860 Code. It has been emphasised by learned counsel
for VG that his conviction is under appeal before the High Co urt, and
the offences for which he has been convicted do not fall within offences
incorporated in Chapters IV and VI of the 1967 Act. The other case is
Sessions Case No.261/10 pending before the Sessions Court at Surat.
15. The prosecution has referred to some letters alleged to have
been recovered from the computers or other devices of the co-accused
persons in which activities of the two appellants have been referred to.
We shall deal with these communications in the subsequent paragraphs
of this judgment. Under ordinary circumstances in a petition for bail, we
must point out, this exercise of analysis of evidence would not have
been necessary. But in view of the restrictive provisions of Section 43D
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
of the 1967 Act, some element of evidence-analysis becomes inevitable.
16.The High Court in dealing with both these appeals had opined
that the Investigating Agency had materials which prima facie showed
that the applicants were part of a larger conspiracy attracting the offences
contained in Sections 121A, 117 and 120B of the 1860 Code as well as
Section 18 of the 1967 Act against them. The High Court had invoked
the allegations of recruiting cadres for the banned organisation, to import
the provisions of Section 18B of the 1967 Act. It further invoked Section
20 of the same statute on the ground that the appellants had been active
members of the banned organisation. In the same way, the view of the
High Court was that Sections 38 and 39 of the 1967 Act were attracted
against the appellants. The High Court found that there were sufficient
materials in the chargesheet against the appellants a nd there were
reasonable grounds to believe that the accusation of commissi on of
offences punishable under Chapters IV and VI of the 1967 Act was
prima facie true in relation to both the appellants. The H igh Court,
however, did not take into consideration, the factor of the appe llants’
continued detention. But the judgment of the High Court was delivered
on 15th October 2019, when the appellants were in detention for a period
little over one year.
17.The NIA has also referred to a set of letters which are alleged
to have been recovered from electronic devices of the co-accused
persons in course of searches. The other set of documents on which the
NIA has placed reliance, are literatures, pamphlets etc. some of which
are meant to have been recovered from the residences of the appellants
themselves. So far as the aforesaid letters are concerned, copies thereof
have been annexed to the courter-affidavits of the NIA filed in connection
with both the appeals. We shall refer to them in this judgment in the way
they have been described numerically as annexures in NIA ’s counter-
affidavit in the appeal of AF. The first document is an undat ed letter
addressed to Surendra, from an unnamed sender, marked as Annexure
“R-6”. This letter is claimed to have been recovered from the computer
of one of the co-accused and refers to Radical Student Union initiative
by AF and VG. This letter requests the addressee to ask Arun to manage
finances for legal defence of one Murgan. There is further reference to
two other individuals who apparently have been inspired by the struggles
of AF and VG.
901
18.The second document is a letter dated 18th April 2017, marked
as Annexure “R-10”, addressed to one “Comrade Prakash ” and is
claimed to have been written by “R”. Prosecution claims “R ” is Rona
Wilson. Only reference to the two appellants in this document is that
they, and others were equally concerned about the “two-line struggle”
that was slowly taking shape on the urban front. The source of this letter
has not been disclosed in the counter-affidavit. From the content of this
letter, the Agency wants to establish that the appellants were senior
leaders of the banned organisation.
19. The third document is a letter dated 25 th September 2017,
marked as Annexure “R-12”, written by “Comrade Prakash”, which is
claimed to have been recovered from the computer of Surendra Gadling
and addressee thereof is “Comrade Surendra”. Here al so there is
appreciation of activities of ‘Vernon’ and ‘Arun’ in motivating research
scholars to get them involved in the revolutionary movement. About VG,
it is recorded that one “Comrade G” has been asked to arrange APT to
meet with Vernon.
20.As regards AF, his name appears in an undated letter, marked
as Annexure “R-4”, addressed to Surendra by Darsu, which refer s to
organisation of a joint meeting by the addressee and Arun in Hyderabad.
The next letter is purported to have been written to Prakash by Surendra
on 5th November 2017 and is marked as Annexure “R-5”. It refers to
establishing Indian Association of People’s Lawyer (“IAPL”) in Kerala
for which discussion was held with Arun. According to the Ag ency,
IAPL – a lawyer’s body is a frontal organisation of the banned
organisation. This communication records a proposed visit to Kerala on
International Human Rights Day by AF and the author thereof. This is
followed by a further communication from Prakash to Surendra dated
16th July 2017 (“R-7”). This letter records a proposed visit of Arun to
Chennai in connection with release of a detained party member as also
raising of funds for the legal defence of detained persons. Her e also,
there is appreciation of AF and VG’s work. The next letter at Annexure
“R-22” is claimed to have been written by Sudha Bharadwaj to Prakash
and this letter relates to a seminar titled “Udta Lokt antra against the
UAPA Act” in which Arun was to participate. Lastly there is a letter at
Annexure “R-14” written by one Anantwa to Comrade Monibai which
relates to the celebration of 50 th Anniversary of the Great Proletarian
revolution and Naxalites organisation in Mumbai (Bombay) and records
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
that the party had sent revolutionary greetings to Comrades of various
associations, including the appellant, Arun.
21. There is also a reference to an account statement alleged by
the prosecution to have been recovered from the laptop of Rona Wilson
(Annexure “R-3”). We reproduce below this statement in the same form
as it has been represented in the said Annexure:-
“Surendra=R=2.5L from Milind
Shoma & amp; Sudhir = R and D = 1L from Surendra
Amit B = R = 1.5 for CPDR canvasing
And T = R = 90T from Surendra (Through Milind)
Myself = R = 1.8L from Com Manoj
Arun = R = 2L from Com Darsu
VV = R = 5L from Com G.”
22. Apart from these letters and statements, various lite ratures,
books etc. have been referred to by the prosecution which they claim to
have recovered from the residences of AF and VG. These mainly involve
writings on extreme left-wing ideology including its application to India.
Similar materials are alleged to have been recovered from other accused
persons as well. Recovery of different electronic communication devices
like Mobile Phones, Tablets, Pen Drives and ancillary items is alleged to
have been made. From these devices themselves, however, no evidence
has been cited before us which would implicate AF and VG in terrorist
acts and the other offences barring the letters on which emphasis has
been laid by the agency. We have already referred to the letters which
the law enforcement agency alleges to have recovered from the devices
of other accused persons in which there are references to A F and VG.
Call Detail Records have also been referred to for establishing location
of the accused and also their inter-association.
23. In pursuance of the judgment of this Court in the case of
Zahoor Ahmad Shah Watali (supra) the documents relied upon by the
prosecution at this stage ought to prevail until overcome or disproved by
other evidences. In the case of Dr. Anand Teltumbde -vs- National
Investigation Agency and Another [2022 SCC OnLine Bom 5174]
allegations were similar in nature against the petitioner therein. He was
charged with all the Sections of the 1967 Act as has been done in the
903
cases of AF and VG except Section 40. The Bombay High Court by a
judgment delivered on 18th November 2022 had enlarged him on bail.
The NIA’s petition for special leave to appeal [SLP(Crl ) No. 11345/
2022] against that judgment was dismissed by a Coordinate Bench of
this Court on 25th November 2022.
24.As it would be evident from the analysis of the evidence cited
by the NIA, the acts allegedly committed by the appell ants can be
categorised under three heads. The first is their association with a terrorist
organisation which the prosecution claims from the letters and witness
statements, particulars of which we have given above. But wh at we
must be conscious of, while dealing with prima facie worth of these
statements and documents is that none of them had been s eized or
recovered from the appellants but these recoveries are alle ged to have
been made from the co-accused. The second head of alleged offensive
acts of the appellants is keeping literatures propag ating violence and
promoting overthrowing of a democratically elected government through
armed struggle. But again, it is not the NIA’s case that either of the two
appellants is the author of the materials found from their residences, as
alleged. None of these literatures has been specifically proscribed so as
to constitute an offence, just by keeping them. Thirdly, so far as AF is
concerned, some materials point to handling of financ es. But such
finances, as per the materials through which the dealings are sought to
be established, show that the transaction was mainly for the purpose of
litigation on behalf of, it appears to us, detained party per sons. The
formation of or association with a legal front of the banned terrorist
organisation has also been attributed to AF, in addition. The High Court
while analysing each of these documents individually did not opine that
there were reasonable grounds for believing that the accusations against
such persons were not prima facie true. Those offences which c ome
within Chapters IV and VI of the 1967 Act, charged a gainst the
appellants, are Sections 16, 17, 18, 18B, 20, 38, 39 and 40. We have
summarised the nature of allegations reflected in the cha rgesheet as
also the affidavit of the NIA. Now we shall have to ascertain if on the
basis of these materials, the prosecution has made out reasonable grounds
to persuade the Court to be satisfied that the accusation s against the
appellants are prima facie true. There is charge under Section 13 of the
1967 Act and certain offences under the 1860 Code against the appellants
also. But we shall first deal with the appellants’ case in relation to charges
made against them under the aforesaid provisions.
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
25.Section 16 prescribes punishment for committing terrorist act
and terrorist act has been defined in Section 15 of the 1967 statute. We
have reproduced these provisions earlier in this judgment.
26. In none of the materials which have been referred to by the
prosecution, the acts specified to in sub-clause (a) of Se ction 15(1) of
the 1967 Act can be attributed to the appellants. Nor there is any allegation
against them which would attract sub-clause (c) of Section 15(1) of the
said statute. As regards the acts specified in Section 15(1) (b) thereof,
some of the literature alleged to have been recovered from the appellants,
by themselves give hint of propagation of such activities. B ut there is
nothing against the appellants to prima facie establis h that they had
indulged in the activities which would constitute overawing any public
functionary by means of criminal force or the show of criminal force or
attempts by the appellants to do so. Neither there is al legation against
them of causing death of any public functionary or attempt to cause
death of such functionary. Mere holding of certain literatures thr ough
which violent acts may be propagated would not ipso facto attract the
provisions of Section 15(1)(b) of the said Act. Thus, prima facie, in our
opinion, we cannot reasonably come to a finding that any case against
the appellants under Section 15(1) (b) of 1967 Act can be held to be
true.
27.Section 17 of the 1967 Act deals with punishment for raising
funds for terrorist acts. Here also the funds, dealing with which has
been attributed to AF, cannot be connected to any terrorist act. In the
case of Dr. Anand Teltumbde (supra) the same account statement
was referred to. In respect of such allegations aga inst Dr. Anand
Teltumbde the Bombay High Court came to the following finding:-
“42. Mr. Patil has vehemently argued that this statement from
the earlier letter supports receipt of monies i.e. Rs . 90,000/-
by Anand T. (Appellant) from Surendra (accused No. 3) who
was authorized to provide funds for future programme s. On
careful reading of the earlier letter dated 02.01.2 018 and
the aforementioned statement of account it is seen that there
is a fallacy in the argument of NIA. Assuming that Anand T. is
the Appellant himself and he received Rs. 90,000/- from
Surendra through Milind, firstly it cannot be linke d to the
statement in the earlier letter dated 02.01.2018 si nce this
account statement pertains to the year 2016 and or 2017.
905
The document has a heading; viz; Party fund received in last
year from C.C. Last year would invariably mean the account
of 2016 as the title of this document is “Accounts2K17” whi ch
would mean Accounts for 2017". That apart requiring us to
presume that Anand T. is the Appellant would require further
corroboration and evidence. prima facie it appears t hat, the
same has not been brought on record. This document is
unsigned and has been recovered from the laptop one of th e
co-accused. Hence, at this prima facie stage we can not
presume that Anand T. i.e. the Appellant received Rs. 90 ,000/
- from Surendra Gadling as argued by NIA. We are afraid to
state that we cannot agree with NIA’s contention. ”
(emphasis added)
28. Here we must point out that there is also a request made to
Surendra from an unnamed person to ask AF to manage the financia l
expenses of “these cases”. The name of another Arun, with the surname
Bhelke has surfaced in Annexure “R-19” to the NIA’s counter-affidavit
in AF’s case. This is a copy of a witness statement. In ab sence of any
form of corroboration at the prima facie stage it ca nnot be presumed
that it was the same Arun (i.e., AF) who had received money from
Darsu. The prosecution has also not produced any material to show that
actual money was transmitted. The communication dated 5th November
2017 (“R-5”), purportedly addressed by Surendra to Prakash doe s not
speak of any payment being made to AF. The rationale applied b y the
Bombay High Court in the above-quoted passage of the judgment in the
case of Dr. Anand Teltumbde (supra), which has been sustained by
this Court, ought to apply in the case of AF as well.
29.We have already observed that it is not possible for us to form
an opinion that there are reasonable grounds for believing that the
accusation against the appellant of committing or conspiring to commit
terrorist act is prima facie true. The witness statements do not refer to
any terrorist act alleged to have been committed by the appellants. The
copies of the letters in which the appellants or any one of t hem have
been referred, record only third-party response or r eaction of the
appellants’ activities contained in communications amon g different
individuals. These have not been recovered from the appellants. Hence,
these communications or content thereof have weak probative value or
quality. That being the position, neither the provisions of Section 18 nor
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
18B can be invoked against the appellants, prima facie, at this stage.
The association of the appellants with the activities of the designated
terrorist organisation is sought to be established through thi rd party
communications. Moreover, actual involvement of the appellants in any
terrorist act has not surfaced from any of these communicati ons. Nor
there is any credible case of conspiracy to commit offences enumerated
under chapters IV and VI of the 1967 Act. Mere participation in seminars
by itself cannot constitute an offence under the bail-restricting Sections
of the 1967 Act, with which they have been charged.
30. So far as application of Section 20 of the 1967 Act is concerned,
the Bombay High Court in the case of Dr. Anand Teltumbde (supra)
construed the said provision in the following manner:-
“52. Section 20 cannot be interpreted to mean that merely
being a member of a terrorist gang would entail suc h a
member for the above punishment. What is important i s the
terrorist act and what is required for the Court to see is the
material before the Court to show that such a perso n has
been involved in or has indulged in a terrorist act. Terror ist
act is very widely defined under Section 15. In the present
case, seizure of the incriminating material as allu ded to
hereinabove does not in any manner prima facie leads to draw
an inferance that, Appellant has committed or indulged i n a
‘terrorist act’ as contemplated under Section 15 of the UAP
Act.”
31.This judgment has not been interfered with by this Court and
we also affirm this interpretation given to Section 20 of the 1967 Act for
testing as to who would be a member of terrorist gang or terrorist
organisation. Moreover, no material has been demonstrated by the NIA
before us that the appellants are members of the terrorist organisation.
AF’s involvement with IAPL as a frontal organisation of the Communist
Party of India (Maoist) is sought to be established, and that ha s been
referred to in the chargesheet as well. But the link betwe en IAPL and
the CPI (Maoist) has not been clearly demonstrated through any material.
Reference to AF and VG as members of the CPI (Maoist) a ppears
from the statement of protected witness, but that link is made in relation
to events between the years 2002-2007, before the organisation wa s
included in the First Schedule to the 1967 Act. No evidence of continued
membership after the party was classified as a terrorist organisation has
907
been brought to our notice. Nor is there any reliable evidence t o link
IAPL with CPI (Maoist) as its frontal organisation. We have already
dealt with the position of the appellants vis-à-vis terrorist acts in earlier
paragraphs of this judgment and we prima facie do not think that Section
20 can be made applicable against the appellants at this stage of the
proceeding, on the basis of available materials.
32. “Terrorist act” as defined under Section 2(k) of the 1967 Act
carries the meaning assigned to it in Section 15. This Sec tion also
stipulates that the expressions “terrorism” and “te rrorist” shall be
construed accordingly. This implies construction of these two expressions
in the same way as has been done in Section 15.
“terrorist organisation” has been independently defined in
Section 2(m) to mean an organisation listed in the First Schedule
or an organisation operating under the same name as an organisation
so listed. But so far as the word “terrorist” is concer ned, in this
Section also, the interpretation thereof would be relatable to the
same expression as used in Section 15. It is one of the basic rules
of statutory construction that an expression used in different parts
of a statute shall ordinarily convey the same meaning – unle ss
contrary intention appears from different parts of the same
enactment itself. We do not find any such contrary intention in the
1967 Act.
33. Section 38 of the 1967 Act carries the heading or title “offence
relating to membership of a terrorist organisation ”. As we have
already observed, a terrorist act would have to be construed having
regard to the meaning assigned to it in Section 15 thereof. We have
given our interpretation to this provision earlier. “terrorist organisation”
[as employed in Section 2(m)], in our opinion is not a mere nomenclature
and this expression would mean an organisation that carries on or indulges
in terrorist acts, as defined in said Section 15. The ter m terrorism, in
view of the provisions of Section 2(k) of the said Act, ought to be
interpreted in tandem with what is meant by ‘terrorist Act’ in Section 15
thereof.
34.In this context, to bring the appellants within the fold of Section
38 of the 1967 Act, the prosecution ought to have prima facie establish
their association with intention to further the said organisation’s terrorist
activities. It is only when such intention to further the terrorist activities
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
is established prima facie, appellants could be brought within the fold of
the offence relating to membership of a terrorist organisation. To bring
within the scope of Section 38 of the 1967 Act, it would not be sufficient
to demonstrate that one is an associate or someone who professes to be
associated with a terrorist organisation. But there must be intent ion to
further the activities of such organisation on the part of t he person
implicated under such provision. But the same line of reasoning in respect
of membership of a terrorist organisation under Section 20, ought to
apply in respect of an alleged offender implicated in Section 38 of the
1967 Act. There must be evidence of there being intention to be involved
in a terrorist act. So far as the appellants are concern ed, at this stage
there is no such evidence before us on which we can rely.
35. In three decisions of this Court, Hitendra Vishnu Thakur
and Others -vs- State of Maharashtra and Others [(1994) 4 SCC
602], NiranjanSingh Karam Singh Punjabi, Advocate -vs- Jitendra
Bhimraj Bijjaya and Others [(1990) 4 SCC 76] and Usmanbhai
Dawoodbhai Memon and Others -vs- State of Gujarat [(1988) 2
SCC 271], the manner in which stringent provisions of a statute ought to
be interpreted has been laid down. In all the three authorities, observation
of this Court has been that the Court ought to carefully examine every
case, before making an assessment if the Act would apply or not. When
the statutes have stringent provisions the duty of the Court would be
more onerous. Graver the offence, greater should be the care taken to
see that the offence would fall within the four corners of the Act. Though
these judgments were delivered while testing similar rigorous provisions
under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the
same principle would apply in respect of the 1967 Act as well.
36. In the case of Zahoor Ahmad Shah Watali (supra), it has
been held that the expression “prima facie true” would mea n that the
materials/evidence collated by the investigating agency in reference to
the accusation against the accused concerned in the charges heet must
prevail, unless overcome or disproved by other evidence, and on t he
face of it, materials must show complicity of such acc used in the
commission of the stated offences. What this ratio contemplates is that
on the face of it, the accusation against the accused ought to prevail. In
our opinion, however, it would not satisfy the prima facie “test” unless
there is at least surface-analysis of probative value of the evidence, at
the stage of examining the question of granting bail and the quality or
909
probative value satisfies the Court of its worth. In th e case of the
appellants, contents of the letters through which the appellants are sought
to be implicated are in the nature of hearsay evidence, recovered from
co-accused. Moreover, no covert or overt terrorist act has been attributed
to the appellants in these letters, or any other material f orming part of
records of these two appeals. Reference to the activities of the accused
are in the nature of ideological propagation and allegations of recruitment.
No evidence of any of the persons who are alleged to have been recruited
or have joined this “struggle” inspired by the appellants has been brought
before us. Thus, we are unable to accept NIA’s contention t hat the
appellants have committed the offence relating to support giv en to a
terrorist organisation.
37. The second set of materials include the witness state ments.
There also no covert or overt act of terrorism has been attributed to the
appellants by the three witnesses. We have dealt with the s ummary of
their statements earlier in this judgment. We have also observed earlier
that mere possession of the literature, even if the content thereof inspires
or propagates violence, by itself cannot constitute any o f the offences
within Chapters IV and VI of the 1967 Act.
38. We have already analysed Sections 38 and 39 of the 1967
Act. The interpretation given by us to the phrase “intention to further
activities” of terrorist organisation could also apply in the same way in
relation to Section 39 of the same statute. There has been n o credible
evidence against the appellants of commission of any terrorist act or
enter into conspiracy to do so to invoke the provisions of Section 43D
(5) of the 1967 Act.
39.As far as raising funds for a terrorist organisation is concerned,
we do not think at this stage, in absence of better evidence, the account
statement is credible enough to justify invoking the bail-restricting clause
by attracting Section 40 of the 1967 Act.
40.We are returning these findings as the restrictions on the Court
while examining the question of bail under the 1967 Act is less stringent
in comparison to the provisions of Section 37 of the Narcotic Drugs and
Psychotropic Substances Act, 1985. We are not called upon, for granting
a bail to an accused with commercial quantity of contraband article under
the 1985 Act, to satisfy ourselves that there are reasonable grounds for
believing that an accused is not guilty of such offence and that he is not
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
likely to commit any offence while on bail. Here, we have to satisfy
ourselves that the specified offences alleged to have been committed by
the appellants cannot be held to be prima facie true.
41. We shall now turn to the other offence under the 1967 Act,
which is under Section 13 thereof, and the 1860 Code offences. The
yardstick for justifying the appellants’ plea for bail is lighter in this context.
The appellants are almost five years in detention. In the case s of K.A.
Najeeb (supra) and Angela Harish Sontakke (supra), delay of trial
was considered to be a relevant factor while examining the plea for bail
of the accused. In the case of K.A. Najeeb (supra), in particular, this
same provision, that is Section 43D (5) was involved.
42. In these two proceedings, the appellants have not crossed, as
undertrials, a substantial term of the sentence that m ay have been
ultimately imposed against them if the prosecution could establish the
charges against them. But the fundamental proposition of law laid down
in K.A. Najeeb (supra), that a bail-restricting clause cannot denude the
jurisdiction of a Constitutional Court in testing if continued detention in a
given case would breach the concept of liberty enshrined in Article 21 of
the Constitution of India, would apply in a case where such a bail-restricting
clause is being invoked on the basis of materials with prima facie low-
probative value or quality.
43.In the case of Zahoor Ahmad Shah Watali (supra) reference
was made to the judgment of Jayendra Saraswathi Swamigal -vs-
State of Tamil Nadu [(2005) 2 SCC 13) in which, citing two earlier
decisions of this court in the cases of State -vs- Jagjit Singh (AIR
1962 SC 253) and Gurcharan Singh -vs- Stateof (UT of Delhi)
[(1978) 1 SCC 118), the factors for granting bail u nder normal
circumstances were discussed. It was held that the nature and seriousness
of the offences, the character of the evidence, circumstances which are
peculiar to the accused, a reasonable possibility of the prese nce of the
accused not being secured at the trial; reasonable a pprehension of
witnesses being tempered with; the larger interest of the public or the
State would be relevant factors for granting or rejecting bail. Juxtaposing
the appellants’ case founded on Articles 14 and 21 of the Constitution of
India with the aforesaid allegations and considering the fact that almost
five years have lapsed since they were taken into custody, we are satisfied
that the appellants have made out a case for granting b ail. Allegations
against them no doubt are serious, but for that reason alone bail cannot
911
be denied to them. While dealing with the offences under Chapters IV
and VI of the 1967 Act, we have referred to the materials available
against them at this stage. These materials cannot jus tify continued
detention of the appellants, pending final outcome of the case under the
others provisions of the 1860 Code and the 1967 Act.
44.While forming our opinion over granting bail to the appellants,
we have taken into account the fact that that VG was once earlier
convicted involving offences, inter-alia, under 1967 Act and there is also
a pending criminal case against him on the allegations of similar line of
activities. Hence, we propose to impose appropriate conditions in respect
of both, which they shall have to comply with, while on bail.
45.We accordingly set aside the impugned judgments and direct
that the appellants be released on bail in respect of the cases(s) out of
which the present appeals arise, on such terms and conditions the Special
Court may consider fit and proper, if the appellants or any one of them
are not wanted in respect of any other case. The conditions to be imposed
by the Special Court shall include:-
(a) Vernon Gonsalves, appellant in Criminal Appeal No.639 of
2023 and Arun Ferreira, appellant in Criminal Appeal No.640
of 2023, upon being enlarged on bail shall not leave the
State of Maharashtra without obtaining permission from the
Trial Court.
(b) Both the appellants shall surrender their passports, if they
possess so, during the period they remain on bail with the
Investigating Officer of the NIA.
(c) Both the appellants shall inform the Investigating Officer
of the NIA, the addresses they shall reside in.
(d) Both the appellants shall use only one Mobile Phone eac h,
during the time they remain on bail and shall inform the
Investigating Officer of the NIA, their respective mob ile
numbers.
(e) Both the appellants shall also ensure that their Mobile
Phones remain active and charged round the clock so that
they remain constantly accessible throughout the period they
remain on bail.
VERNON v. THE STATE OF MAHARASHTRA & ANR.
[ANIRUDDHA BOSE, J.]
(f) During this period, that is the period during which they remain
on bail, both the appellants shall keep the location status of
their mobile phones active, 24 hours a day and their phones
shall be paired with that of the Investigating Officer of the
NIA to enable him, at any given time, to identify the
appellants’ exact location.
(g) Both the appellants shall report to the Station House Officer
of the Police Station within whose jurisdiction they shall
reside while on bail once a week.
46.In the event there is breach of any of these conditions, or any
of the conditions to be imposed by the Trial Court independently, it would
be open to the prosecution to seek cancellation of the bail of each or any
of the defaulting appellants without any further reference to this Court.
Similarly, if the appellants seek to threaten or otherwise influence any of
the witnesses, whether directly or indirectly, then also the prosecution
shall be at liberty to seek cancellation of bail of the concerned appellant
by making appropriate application before the Trial Court.
47. The appeals stand allowed in the above terms.
48.Pending application(s), if any, shall stand disposed of.
Divya Pandey Appeals allowed.
(Assisted by : Roopanshi Virang, LCRA)