Burerdi Narayana vs Union Of India

Heard learned senior counsel for the appellant and learned counsel for the N.I.A.

This appeal, filed under Section 21(4) of the National Investigation Agency Act, is directed against the order dated 3.1.2020, passed by learned Judicial Commissioner-cum-Special Judge, NIA, Ranchi, (herein after referred to as the 'NIA Court'), in Misc. Criminal Application No. 953 of 2019, filed in Special (NIA) Case No. 2 of 2017, RC-14/2017/NIA/DLI, arising out of Chutia P.S. Case No. 180 of 2017, whereby, the bail application filed by the appellant has been rejected by the NIA Court.

According to the prosecution case, Chutia P.S. Case No. 180 of 2017 was registered on 30.8.2017 for the offences under 386 / 34 of the Indian Penal Code, Section 17 and 18 of the Criminal Law (Amendment) Act, and Sections 10, 11, 17, 18 and 19 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the 'UA(P) Act'), as upon secret information, a raid was conducted near Ranchi Railway Station and the appellant and one Moola Satyanarayan Reddy were apprehended by the police. From possession of this appellant, more than rupees five lakhs and from possession of the apprehended co-accused, more than rupees twenty lakhs were recovered and there was also the seizure of 473.9 gms of gold bar and other incriminating documents relating to extremists activities. The appellant is the younger brother of one Sudhakaran, who is the member of Central Committee of CPI (Moist), a banned terrorist organization. It is alleged that both these apprehended co-accused persons were taking away the levy amount collected by the extremists by way of Cri.Appeal (DB) No. 92 of 2020 extortion and the same amount was being sent to Telangana, through both the apprehended accused persons, including this appellant, and accordingly, the police was case instituted.

Subsequently, the investigation of the case was handed over to National Investigation Agency by the order of the Government of India, dated 16.10.2017 and the case was e-registered and also investigated by the NIA. Several incriminating materials were also recovered by the NIA during investigation. According to the case of the NIA, this appellant had received rupees one lakh in cash, on the instructions of his brother Sudhakaran, in the month of July 2017 from co-accused Moola Satyanarayan Reddy at Hyderabad, and the part of the said amount was deposited in the account of wife of this appellant. Thereafter, the appellant accompanied Moola Satyanarayan Reddy to Gumla for meeting Sudhakaran and received rupees five lakhs in cash and two wrist watches for his daughters, which he was carrying with him, while being apprehended. The CPI (Moist) literature were also recovered from him, while from the other co-accused, who was along with this appellant, more than rupees twenty lakh, gold bar weighing 473.9 grms and other incriminating articles were recovered. It is also the case of the NIA that this appellant was directly in association with his extremist brother and his wife, who were involved in various extremist activities in Jharkhand and were operating from the forests, including the activity of extortion of levy from industrialists, mining and road construction contractors, tendu leaves contractors etc., and the ill-gotten money of Sudhakaran was being carried away by this appellant. After investigation, charge-sheet was submitted against the appellant also under Section 21 of the UA(P) Act by the NIA.

Taking into consideration Section 43-D(5) of the UA(P) Act, the NIA Court below has rejected the prayer for bail of the appellant finding that the allegations against the appellant were prime facie true. Hence this appeal.

Learned senior counsel for the appellant has submitted that the impugned order cannot be sustained in the eyes of law. Learned senior counsel has submitted that the appellant has no criminal antecedent and he has not actively involved in the activities of the extremists organization. According to the appellant's case, the appellant had come to meet his brother and his wife only to bring them on the right path and persuade them to leave the terrorism. Learned counsel has accordingly, submitted that in the facts of this case, Section 21 of the UA(P) Act, and consequently, Section 43-D (5) of the UA(P) Act, shall not come into play.

Cri.Appeal (DB) No. 92 of 2020

Learned counsel for the NIA, on the other hand, has opposed the prayer and has submitted that the appellant was apprehended on a secret information that he had gone to meet his brother and was carrying the money, which were the proceeds of terrorism. More than five lakh rupees and the literature of extremist activities were recovered from him and more than rupees twenty lakh were recovered from Moola Satyanarayan Reddy, who was with the appellant, apart from the gold bar and other incriminating articles. It is submitted that since this amount of money recovered from the appellant is the proceeds of the terrorism, Section 21 of the UA(P) Act shall come into play. As there is nothing on the record to show that the allegations against the appellant are not prime facie true, Section 43-D(5) of the UA(P) Act shall also come into play and the appellant cannot be granted bail at this stage.

Having heard learned counsels for both the sides and upon going through the record, we find that the appellant has been apprehended along with huge amount of more than rupees five lakh and more than rupees twenty lakh were recovered from the accomplice of the appellant, both of whom were apprehended together. Gold bar weighing 473.9 gms., and other incriminating articles were also recovered from the apprehended accused. It is an admitted fact that the appellant is the brother of Sudhakaran, who is the leader of the Central Committee of CPI (Moist), a banned terrorist organization, actively involved in the extorting levy from the contractors and business people. At this stage, it cannot be said that the huge amount of money which the appellant was having with him, were not the proceeds of terrorism.

Section 21 of the UA(P) Act, reads as follows:-

"21. Punishment for holding proceeds of terrorism.- Whoever knowingly holds any property derived or obtained from commission of any terrorist act or acquired through the terrorist fund shall be punishable with imprisonment for a term which may extend to imprisonment for life and shall also be liable to fine."

A plain reading of this Section clearly shows that the appellant was knowingly having the money, which he received from his brother, who was non-else than a leader of terrorist organization operating in the State of Jharkhand. As such, it cannot be said that he did not know that the money was the proceeds from the terrorism. Once, this money has been recovered from the appellant, Section 21 of the UA(P) Act clearly comes into play against the appellant.

Section 43-D(5) of the UA(P) Act reads as follows:-

"43-D(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI Cri.Appeal (DB) No. 92 of 2020 of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given 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 case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."

In view of the materials brought on record, which shows that the appellant is in close association with Maoists of the top rank, and he was carrying away the money, which can safely be said to be the proceeds of the terrorism, we find that at this stage, there is nothing on record to show that the case against the appellant is not prime facie true. Section 21 of the UA(P) Act, comes under Chapter-IV of the said Act, and as such, under Section 43-D(5) of the UA(P) Act, the burden lies heavily upon the appellant to show that the case against him is not prime facie true, but the appellant has failed to discharge this burden.

For the foregoing discussions, we are of the considered view that Section 43-D(5) of the UA(P) Act, is a clear bar against the appellant for the relief sought for by him, and the appellant is not entitled to be released on bail.

As such, we do not find any illegality in the impugned order dated 3.1.2020 passed by the NIA Court, in Misc. Criminal Application No. 953 of 2019, filed in Special (NIA) Case No. 2 of 2017, RC-14/2017/NIA / DLI, arising out of Chutia P.S. Case No. 180 of 2017, rejecting the prayer for bail of the appellant, worth any interference by this Court.

There is no merit in this appeal and the same is accordingly, dismissed.