Sudesh Kedia vs Union Of India

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5. On further investigation, a second supplementary

charge-sheet was filed on 10.01.2020 in which the

Appellant was shown as A-19. According to the

supplementary charge-sheet the Appellant is engaged in

transporting of coal on behalf of GVK Power and

Godavari Commodities. He had attended meetings with

TPC leaders and had paid levy to TPC leader Akraman (A-

14) CCL employees and village committee members

from his current account. In view of the payments made

by him an inference was drawn that the Appellant

colluded with the members of the terrorist gang (TPC)

and was a party to a criminal conspiracy to raise funds

for a terrorist gang. Further, an amount of Rs. 9,95,000/-

(Rupees Nine Lakh and Ninety-Five Thousand only) was

seized from his residential premises. The Appellant was

apprehended on 10.01.2020. He moved an application

for bail in the Court of Judicial Commissioner-cum-Special

Judge, National Investigation Agency at Ranchi. The

submission made on behalf of the Appellant that he was

a victim and he was forced to pay the levy as demanded

by the organization was not accepted by the special

4 | Page court. The Special Court was convinced with the

contention of the prosecution that apart from the

meeting with the members of the terrorist organization,

the Appellant had also paid huge amount of money to

them.

6. The appeal filed against the judgment of the special

court was dismissed by the High Court on 24.06.2020.

In view of the admissions of the Appellant that he had

been paying extortion money, it was held that he

contributed to funding of the terrorist organization. The

High Court observed that there is material on record to

show that he was in constant touch with the members of

the terrorist organization in order to run his business.

Prima facie, the High Court was satisfied that it is a case

of terror funding. Referring to Section 43-D (5) of the UA

(P) Act, and relying upon the judgment of this Court in

National Investigation Agency v. Zahoor Ahmad

Shah Watali1, the High Court concluded that the

accusations against the Appellant are prima facie made

out disentitling the Appellant for grant of bail.

1 (2019) 5 SCC 1

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7. We have heard C. A. Sundaram, learned senior

counsel for the Appellant and Mr. Sairica Raju, learned

Additional Solicitor General for the Respondent. It was

submitted by the Appellant that the only accusation is

payment of illegal levy to TPC for the smooth functioning

of the business. The Appellant is not a member of TPC

and cannot be accused of terror funding. On the other

hand, there was no way he could carry on smooth

transportation of coal without meeting the demand of

the terrorist organization. The meeting that the

Appellant had with the members of the organization

could not have been avoided and it was only for the

purpose of his complying with the demand made by the

members of the organization. It was submitted on

behalf of the Appellant that a perusal of the charge-

sheet and the other material on record would not

disclose any offence under Section 17 of the UA (P) Act

as it cannot be said that by any stretch of imagination

that the Appellant has raised funds for the terrorist

organization.

8. According to the prosecution, the Appellant was

providing financial support to TPC and the material

6 | Page gathered during investigation discloses that the

Appellant has committed offences under Section 17 of

the UA (P) Act. Huge amount of money that was paid by

the Appellant to protect his business which amounts to

raising funds to the terrorist organization. It was

submitted that the judgment of the High Court does not

warrant any interference as the Appellant was in

constant touch with the members of the organization

(TPC) which shows his involvement with the terrorist

gang.

9. Section 43-D (5) mandates that a person shall not

be released on bail if the court is of the opinion that

there are reasonable grounds for believing that the

accusations made are prima facie true. Apart from the

other offences, the Appellant is accused of committing

offences under Section 17, 18 and 21 of the UA (P) Act.

The Appellant is accused of providing funds to a terrorist

organization. According to the prosecution, he has

entered into a conspiracy with the other members of the

organization to strengthen and promote the activities of

the organization. Further, an amount of Rs. 9,95,000/-

(Rupees Nine Lakh and Ninety-Five Thousand only) was

7 | Page seized from the Appellant’s house, making him liable for

punishable under Section 21 of the Act.

10. In National Investigation Agency v. Zahoor

Ahmad Shah Watali (supra), this Court considered the

parameters for exercise of the power under Section 43

(5) D, held as follows:

“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 prima 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 MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is “not guilty” of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is “not guilty” of such offence and

8 | Page the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable 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 collated by the investigating agency in reference to the accusation against the accused concerned in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, 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 degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act….”

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11. While considering the grant of bail under Section 43

(5) D, it is the bounden duty of the Court to apply its

mind to examine the entire material on record for the

purpose of satisfying itself, whether a prima facie case is

made out against the accused or not. We have gone

through the material on record and are satisfied that the

Appellant is entitled for bail and that the Special Court

and High Court erred in not granting bail to the Appellant

for the following reasons:

(A) A close scrutiny of the material placed before the

Court would clearly shows that the main

accusation against the Appellant is that he paid

levy / extortion amount to the terrorist

organization. Payment of extortion money does

not amount to terror funding. It is clear from the

supplementary charge-sheet and the other

material on record that other accused who are

members of the terrorist organization have been

systematically collecting extortion amounts from

businessmen in Amrapali and Magadh areas. The

Appellant is carrying on transport business in the

10 | P a g e area of operation of the organization. It is

alleged in the second supplementary charge-

sheet that the Appellant paid money to the

members of the TPC for smooth running of his

business. Prima facie, it cannot be said that the

Appellant conspired with the other members of

the TPC and raised funds to promote the

organization.

(B) Another factor taken into account by the Special

Court and the High Court relates to the allegation

of the Appellant meeting the members of the

terror organization. It has been held by the High

Court that the Appellant has been in constant

touch with the other accused. The Appellant has

revealed in his statement recorded under Section

164 Cr.PC that he was summoned to meet A-14

and the other members of the organization in

connection with the payments made by him.

Prima facie, we are not satisfied that a case of

conspiracy has been made out at this stage only

on the ground that the Appellant met the

members of the organization.

11 | P a g e (C) An amount of Rs. 9,95,000/- (Rupees Nine Lakh

and Ninety-Five Thousand only) was seized from

the house of the Appellant which was accounted

for by the Appellant who stated that the amount

was withdrawn from the bank to pay salaries to

his employees and other expenses. We do not

agree with the prosecution that the amount is

terror fund. At this stage, it cannot be said that

the amount seized from the Appellant is

proceeds from terrorist activity. There is no

allegation that Appellant was receiving any

money. On the other hand, the Appellant is

accused of providing money to the members of

TPC.

12. After a detailed examination of the contentions of

the parties and scrutiny of the material on record, we are

not satisfied that a prima facie case has been made out

against the Appellant relating to the offences alleged

against him. We make it clear that these findings are

restricted only for the purpose of grant of bail to the

12 | P a g e Appellant and the trial court shall not be influenced by

these observations during trial.

13. For the aforementioned reasons, the judgment of

the High Court is set aside and the Appellant is directed

to be released on bail subject to the satisfaction of the

Special Court. The appeals are allowed, accordingly.

.....................................J. [ L. NAGESWARA RAO ]

....................................J. [ S. RAVINDRA BHAT ]

New Delhi, April 09, 2021.

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