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Judgment
R. Basant, J.—The appellants are accused Nos. 1 and 2 in R.C 1/2011 (NIA Hyderabad) which is being investigated by the National investigating agency now. Their application for regular bail having been dismissed by the Special Court for Trial of NIA cases, they have preferred these appeals u/s 21(4) of the NIA Act.
The allegations in a nut shell is that accused 1 to 3 were intercepted when they traveling in a car within the jurisdiction of Thaliparamba Police Station. They allegedly had with them counterfeit currency notes of Rs. 1000 denominations-5 bundles with A1, 2 bundles with A2 and two bundles with A3. Total amount of counterfeit currency notes was Rs. 8,91,000/-. They were arrested on 18.9.2011 and Crime No. 711/2011 was registered at the Thaliparamba Police Station u/s 489(B) and (C) of the Indian Penal Code. Investigation was in progress. The accused continue in custody in the course of investigation. In the course of Investigation, allegations were raised against the accused persons u/s 15 and 17 of the Unlawful Activities Prevention Act. As per order dated 3.12.2011 the investigation was taken over by the NIA. Investigation is in progress. Appellants/accused continue in custody. The learned Special Judge has passed orders under the proviso to Section 43D(2) of the Unlawful Activities Prevention Act, 1967 extending the period of custody to 180 days.
Investigation is not complete. The learned Special Public Prosecutor for NIA contends that active efforts are in progress to complete the investigation. He opposes the application for bail. He however submits that investigation is not likely to be completed at any rate within the period of 180 days, which is the maximum period for which the appellants can be detained in custody without filing a final report. The application for bail is opposed. But the learned Special Prosecutor accepts the inevitable requirement of releasing the accused in custody after expiry of the period of 180 days as there is no practical possibility of the investigation being completed within such period.
The learned counsel for the appellants(accused 1 and 2) have various contentions to advance. First of all they contend that UAP Act is not attracted at all. At any rate, the case against the appellants is so fragile and unacceptable that it cannot be held under the proviso to Section 43D(5) UAP Act that there are reasonable grounds for believing that the accusation against the appellants is prima facie true.
The learned counsel for the appellants have strained to take us through the crux of allegations against the appellants. They contend that adequate materials have already been placed before the Special Court indicating convincingly the unacceptable nature of the stand taken by the initial investigating agency(local Police) that the appellants were arrested and taken into custody only on 18.9.2011. It is laboriously contended that the story of arrest and seizure on 18.9.2011 is inherently unacceptable and that convincing materials are there to show that the appellants were taken into custody long prior to 18.9.2011. The NIA or the previous investigating agency have not chosen to explain such anterior detention-prior to 18.9.2011 of the appellants. If a proper investigation is conducted that would expose the hollowness of the assertion of the local police that the appellants were actually arrested and taken into custody only on 18.9.2011.
Identical submissions are made by Sri. M.K. Damodaran and Sri. Vijayabhanu senior counsel on behalf of the respective appellants. The learned Public Prosecutor for NIA, Sri. Ajay submits that NIA is unable now to take a definite stand on the criticism that the appellants were not arrested on 18.9.2011. Whether arrested on 18.9.2011 or earlier, there are sufficient materials to indicate the complicity of the appellants in the crime alleged under the UAP Act, contends the learned Public Prosecutor. The learned prosecutor contends that allegations u/s 15 and 17 of the UPA Act as also Section 489(B) and (C) of the IPC are well founded, whatever be the date of actual taking into custody of the appellants. The NIA needs further time to take specific stand on the criticism regarding arrest and detention prior to 18.9.2011, accepts the learned Special Prosecutor.
We have heard submissions of both counsel. After discussions of the Bar we are satisfied that without going deeper into the acceptability of the allegations raised, it can be directed that the appellants can be released on bail on expiry of 180 days from the date of their arrest on 18.9.2011, subject to of course to appropriate conditions and safeguards which shall ensure the interests of a fair, proper and efficient investigation. We make particular note of the fair stand taken by the learned Special Public Prosecutor for NIA. We are hence not delving deeper into the criticism raised against the theory of arrest on 18.9.2011. Needless to say, the NIA will have to investigate into that dimension of the case also.
In the result,
a. These appeals are allowed.
b. The appellants shall be released on bail after expiry of the period of 180 days from 18.9.2011, the date of their arrest (according to the prosecution)on the following terms and conditions:
i. They shall execute bonds for Rs. 1 lakh each with two solvent sureties each for the like sum to the satisfaction of the Special Court of NIA cases.
ii. They shall make themselves available for interrogation before the investigating Officer at their camp office at Ernakulam on all Mondays and Fridays until further orders.
iii. The Passports in the name of the appellants shall be surrendered by the appellants before the Special Court before their release. To allay the apprehension aired by the learned Special Public Prosecutor, it is directed that if they have more than one passport, all such passports shall be so surrendered. At any rate an affidavit shall be filed by the appellants to confirm that their passports (if there are more than one passport)are all being surrendered before the Court.
iv. Appellants shall not leave the State of Kerala until further orders without prior specific permission of the Special Court.
v. We make it clear that the Special Court shall be at liberty to modify the conditions hereby imposed in its discretion.