Crl.A. 14/2010 BEFORE HON’BLE MR JUSTICE I A ANSARI HON’BLE MR JUSTICE A C UPADHYAY JUDGMENT & ORDER (Ansari, J.) Aggrieved by the order, dated 31.12.2009, passed by the learned Special Judge, NIA, Assam, in Misc. (NIA) Bail Application No.05/2009, arising out of Sp ecial (NIA) Case No.01/2009 under Sections 120B/121/121A IPC read with Sections 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967, refusing to grant bail to three accused persons, namely, Jayanta Kumar Ghosh, Debasish Bhat tacharjee and Sandip Kumar Ghosh, each of the said accused persons has preferred appeal under Section 21(4) of the National Investigation Agency Act, 2008, the three appeals having given rise to Criminal Appeal Nos.12/2010, 13/2010 and 14/2 010 respectively. 2. Aggrieved by the orders, dated 25.01.2010 and 08.01.2010, passed by the learned Special Judge, NIA, Assam, in Misc.(NIA) Bail Application No.08/2009 and 09/2009 respectively, both having arisen out of Special (NIA) Case No.01/2009 u nder Sections 120B/121/121A IPC read with Sections 16, 17, 18 and 20 of the Unla wful Activities (Prevention) Act, 1967, refusing to grant bail, the two accused persons, namely, Samir Ahmed and Arshingdao Waris, have preferred appeals under Section 21(4) ) of the National Investigation Agency Act, 2008, their appeals ha ving given rise to Criminal Appeal No.24/2010 and 35/2010. 3. As the prosecution’s case against all the accused aforementioned are int er-woven and closely linked with each other, all these five appeals have been he ard together and are being disposed of by this common judgment and order. 4. We have heard Mr. PK Goswami, learned Senior counsel, appearing on behal f of the accused Jayanta Kumar Ghosh (i.e., appellant in Criminal Appeal No.12/2 010), Mr. JM Choudhury, learned Senior counsel, appearing on behalf of the accus ed Debasish Bhattacharjee (i.e., appellant in Criminal Appeal No.13/2010) and Mr . M. Mukherjee, learned counsel, appearing for the accused Sandip Kumar Ghosh (i .e., appellant in Criminal Appeal No.14/2010). We have also heard Mr. A. Talukda r, learned counsel, appearing on behalf of the accused Samir Ahmed (i.e., appell ant in Criminal Appeal No.24/2010), Mr. GN Sahewalla, learned Senior counsel, ap pearing on behalf of the accused Ashringdaw Warisa (i.e., appellant in Criminal Appeal No.35/2010) and Mr. D.K. Das, learned Senior counsel, appearing on behalf of the respondents. BACKGROUND : 5. The materials facts, giving rise to these appeals, may, in brief, be set out as under: (i) Some significant amendments have been made in the Unlawful Activities (Preve ntion) Act, 1967, by the Unlawful Activities (Prevention) Amendment Act, 2008, t he amendment having come into force on 31.12.2008. The amendments, amongst othe rs, introduced certain conditions, whereby the powers of the court, under Sectio n 437 of the Code of Criminal Procedure, have come to be restricted by placing s ome fetters on the court’s discretion to allow an accused person to go on bail. (ii) Basistha P.S. Case No. 170/2009, under Section 120B/121/121(A) IPC read with Section 25(1B) (A) Arms Act, was, initially, registered against two accused persons, namely, Phojendra Hojai and Babulal Kemprai, on the ground that, on 01 .04.2009, at about 4-00 p.m., when vehicle Nos. AS-01-AH-1422 and AS-01-1-0609 w ere intercepted at 14th Mile G.S. Road, Guwahati, and searched, both the accused , suspected to be cadres and linkmen of a banned organization, namely, DHD (J), were found in the vehicles, wherefrom a sum of rupees one crore, in cash, and tw o pistols were recovered, the money being meant for purchase of arms and ammunit ions for the said banned organization. The accused were accordingly taken into custody and investigation was started by the Assam Police. On being produced be fore the Chief Judicial Magistrate, Kamrup, Guwahati, the two accused aforementi oned were remanded to police custody. (iii) On 18.05.2009, both the accused, namely, Phojendra Hojai and Babulal Kem prai, were granted bail by the High Court, in exercise of its powers under Secti on 439 Cr.PC., in Bail Application No. 1637/2009. (iv) On 31.05.2009, Mohit Hojai, the then Chief Executive Member, N. C. Hills Autonomous Council, and R. H. Khan, who was not only the Deputy Director, Socia l Welfare Department, but also the Liaison Officer, N. C. Hills Autonomous Counc il, were arrested by Assam Police and, on their production before the Chief Judi cial Magistrate, Kamrup, they were remanded to police custody for two days. The Court, on the prayer for extension of police custody made by the Investigating Officer of the Assam Police, allowed further extension of the police custody for a period of two more days by its order, dated 02.06.2009. However, further pray er for custodial interrogation was rejected by the Chief Judicial Magistrate, Ka mrup, who, however, granted permission to the Investigating Officer to interroga te accused Redaul Hussain Khan, in Central Jail, Kamrup, Guwahati. On the same d ay, the learned Court also rejected accused Redaul Khan’s prayer for granting h im bail. (v) While investigation of Basistha Police Station Case No.170/2009 aforemention ed was pending with the State police, the Central Government, in exercise of its power under Section 6(5), read with Section 8 of the National Investigation Age ncy Act, 2008 (in short, ’the NIA Act’), directed, on 01.06.2009, investigation of the said case by the National Investigation Agency (in short, ’the Agency’). In terms of the directions, so issued by the Central Government, the Agency reg istered a case under the NIA Act, the Case being NIA Case No. 1/2009. (vi) Before, however, registration of the case aforementioned by the Agency, three more persons, namely, 1. Mihir Barman @ Jewel Garlossa @ Debojit Sinha, 2. Ahsringdaw Warrisha @ Partha Warisha, and 3. Sameer Ahmed, were arrested by the Assam Police, at Bangalore, in connection with Basistha Police Station case afo rementioned, on 30.05.2009 and 03.06.2009, respectively. The Agency moved, 05.06 .2009, the Chief Judicial Magistrate, Kamrup, and filed FIR in the NIA Case No. 1/2009 aforementioned. On 06.06.2009, the accused persons were, on being produc ed before the Chief Judicial Magistrate, Kamrup, remanded to police custody. I n terms of the order, passed by the Chief Judicial Magistrate, on 06.06.2009, Ba sistha P.S. Case No. 170/2009 aforementioned was tagged with the NIA Case No. 1/ 2009 and, on the basis of the application made by the Agency, the Court allowed accused Mohit Hojai and R. H. Khan to be taken into custody by the Agency for a period of 10 days and the three accused, namely, 1. Mihir Barman @ Jewel Garloss a @ Debojit Sinha, 2. Ahsringdaw Warrisha @ Partha Warisha, and 3. Sameer Ahmed, were remanded, for a period of 14 days, to the custody of the Agency. (vii) On 11.06.2009, on the prayer of the Agency, the Court of the Chief Judic ial Magistrate, Kamrup, added Sections 17/18/19 of the Unlawful Activities (Prev ention) Act, 1967, to the NIA Case No. 1/2009 aforementioned and, on the prayer of the Agency, the Court of the Chief Judicial Magistrate, Kamrup, remanded the accused to judicial custody, in purported exercise of its power under Section 16 7 of the CrPC, on the ground that no court has so far been constituted under the NIA Act. (viii) By a Gazette notification, dated 09.07.2009, issued by the Government of India, Ministry of Home Affairs, in exercise of its powers under Section 3 of t he Unlawful Activities (Prevention) Act, 1967, DHD(J) along with its factions, w ings and front organizations came to be declared as ’unlawful organization’. (ix) Three of the accused persons, namely, R. H. Khan, Ahsringdaw Warrisha @ Partha Warisha and Sameer Ahmed, then, approached this Court seeking to invoke i ts jurisdiction under Section 439 CrPC. None of the accused aforementioned appli ed for bail to the Chief Judicial Magistrate, Kamrup, or to the Sessions Judge, Kamrup; rather, they applied for bail, directly, to this Court under Section 439 Cr.PC. (x) One of the important questions, which arose before the High Court, in th e matter of application for bail, which the five accused aforementioned had so m ade under Section 439 Cr.PC to this Court, was as to whether the bail applicatio ns were maintainable in law. (xi) Upon a threadbare discussion, the said three bail applications, made under Section 439 CrPC, seeking to invoke High Court’s jurisdiction to grant bail in f avour of the accused aforementioned, were rejected, on 29.07.2009, by one of us (Ansari, J.) on the ground of lack of jurisdiction, laying down, inter alia, tha t under the scheme of the provisions contained in the NIA Act read with the prov isions of remand and bail as stand incorporated in the Code of Criminal Procedur e, a person , arrested in connection with an offence, under the NIA Act, can be remanded to custody, police or judicial, by the Special Court, where the Specia l Court has been constituted, or by the Court of Session, where the Special Cour t has not been constituted. The Court also held that the source of power of the Special Court or the Court of Session, as the case may be, to consider an applic ation for bail is traceable to, and governed by, the provisions of Section 437 C r.PC. and while considering such an application for bail, the Special Court or t he Court of Session, as the case may be, will not exercise the power of bail as if it is considering an application for bail under Section 439 and, consequently , the Special Court or the Court of Session, as the case may be, would have all the limitations, which a Magistrate has, while deciding an application for bail, under Section 437 Cr.PC and the provisions, contained in Section 439 Cr.PC, can not be resorted to for the purpose of granting bail and it was also held by the High Court, in its order, dated 29.07.2009, aforementioned, that against an orde r, passed by a competent court, rejecting bail, or granting bail, the remedy of an aggrieved party lies in preferring an appeal to the High Court, in terms of S ection 21(4) of the NIA Act, and in not making any application under Section 439 Cr.PC. This Court, therefore, held in its order, dated 29.07.2009, that such an appeal would require hearing by a Division Bench of the High Court and that in such an appeal, even the merit of the order, granting or refusing bail, can be q uestioned. The decision came to be reported, in (2009) 3 GLT 855 (Redaul Hussai n Khan & Ors vs. State of Assam & Ors). While laying down the law, as indicated hereinbefore, the Court observed and held as under: 77. What emerges from the above discussion is that it is the Special Court u nder the NIA Act, or the Court of Session, when the Special Court has not been c onstituted, where an accused is required to be produced if he is arrested in con nection with an offence punishable under the NIA Act and, upon his production, i t is the Special Court or the Court of Session, as the case may be, which shall have the power to grant bail. The source of power of the Special Court or the Co urt of Session, as the case may be, to consider an application for bail is trace able to, and governed by, the provisions of Section 437 of the Code and while co nsidering such an application for bail, the Special Court or the Court of Sessio n, as the case may be, will not exercise the power of bail as if it is consideri ng an application for bail under Section 439 and, consequently, the Special Cour t or the Court of Session, as the case may be, would have all the limitations, w hich a Magistrate has, while deciding an application for bail, under Section 437 of the Code. XXX XXX XXX XXX XXX XXX XXX XXX XXX 106. What surfaces from the above discussion, held, as a whole, is that except a s provided in Section 167(2-A) of the Code, a person, arrested in connection wit h an offence, under the NIA Act, can be remanded to custody, police or judicial, by the Special Court, where the Special Court has been constituted, or by the C ourt of Session, where the Special Court has not been constituted. In view of th e fact that the NIA Act envisages a situation, wherein an investigation, as in t he present case, may be entrusted to the National Investigation Agency after the State police had made some investigation, it further follows that once the inve stigation, under the scheme of the NIA Act, is taken over by the Agency, it is t he Special Court or the Court of Session, as the case may be, which can authoriz e further detention of an arrested accused. When such an arrested accused applie s for bail to the Special Court or the Court of Session, as the case may be, the source of power to consider such an application for bail lies in Section 437 an d not Section 439 of the Code. Even a High Court cannot invoke its powers under Section 439, to grant bail if it has been refused by the Special Court or the Co urt of Session, as the case may be, nor can the High Court, in exercise of its p ower, under Section 439, cancel bail if bail has been granted to such an accused by the Special Court or the Court of Session, as the case may be. If the bail h as been refused or granted by the Special Court or the Court of Session, as the case may be, the aggrieved party may, however, prefer an appeal, in terms of Sec tion 21, to the High Court. Such an appeal has to be heard by a Division Bench o f the High Court and in such an appeal, the merit of the order, granting or refu sing bail, can be questioned. 107. In the backdrop of the position of law, as indicated above, it becomes c lear that the present three applications for bail, which have been made under Se ction 439 of the Code, are not entertainable in law and must, therefore, fail. 108. In the result and for the reasons discussed above, all these three bail applications are hereby dismissed as not maintainable. (xii) Complying with the position of law, as had been laid down, in Redaul Hus sain Khan and others (supra), one of the accused, namely, Redaul Hussain Khan, f iled an application before the Sessions Judge (Special Court), Kamrup, Guwahati, seeking bail, but his bail application came to be rejected on 14.08.2009. Ther eafter, on an application, made by the NIA, on 27.08.2009, the learned Sessions Judge (Special Court), Kamrup, Guwahati, by its order, dated 28.08.2009, extende d the period for completion of investigation into the case by a further period o f 60 days in terms of Section 43-D(5)(b) of the 1967 Act read with Section 167 C r.PC. The order, dated 14.08.2009, of the learned Sessions Judge (Special Court ), Kamrup, Guwahati, rejecting the bail applications came to be unsuccessfully c hallenged by Redaul Hussain Khan and some others, before a Division Bench of thi s Court, by way of appeal under Section 21(4) of the NIA Act. The said appeal ca me to be dismissed by a Division Bench of this Court on 19.09.2009. In the meanw hile, however, the Special Court, Central Bureau of Investigation, Assam, Guwaha ti, was notified by the Central Government, in exercise of its power under Secti on 11(1) of the NIA Act, vide Gazette notification, dated 01.09.2009, issued by the Government of India, Ministry of Home Affairs, as the ’Special Court’ for th e purpose of the NIA Act. (xiii) As against the dismissal of his appeal and rejection of bail by the orde r, dated 19.09.2009, passed by a Division Bench as mentioned above, one of the a ccused, namely, Redaul Hussain Khan, carried the matter, by way of a Special Lea ve Petition, to the Supreme Court. By its decision, pronounced on 09.11.2009, re ported in (2010) 1 SCC 521 (Redaul Hussian Khan vs. State of Assam & Ors.), the Supreme Court observed, inter alia, that there was little doubt that even on the date, when accused Redaul Hussain Khan was apprehended, DHD(J) had been indulgi ng in terrorist act, although it came to be declared as a ’unlawful association’ some time latter, i.e., on 09.07.2009. The Supreme Court made it clear, in its order, dated 09.11.2009, that having considered the submissions, made before it, it was unable to agree with the submissions, made on behalf of the accused-peti tioner, Redaul Hussain Khan, that to the facts of the case, the provisions of th e Unlawful Activities (Prevention) Act, 1967, were not attracted. The Supreme C ourt further held that it was unable to accept the submissions, made on behalf o f the petitioner, Redaul Hussain Khan that merely because of the fact that DHD( J) had not been declared as an ’unlawful organization’, when Redaul Hussain Khan was arrested, the said organization could not have been taken to have been indu lging in terrorist act, or that the petitioner could not have been alleged to ha ve the knowledge of such activities of the DHD(J). With the conclusions, so rea ched, the Supreme Court rejected Redaul Hussain Khan’s application for bail by l aying down that the learned Sessions Judge (Special Court), Kamrup, Guwahati, ha d the jurisdiction to extend the time for completion of investigation in terms o f the amended provisions, introduced by way of Section 43-D(5)(b) of the 1967 Ac t, read with Section 167 CrPC. The relevant observations, made by the Apex Cour t, in Redaul Hussain Khan (supra), read as under: 15. Mr. Rawal submitted that although Mr. Ghosh had referred to some newspaper reports indicating that there was a possibility of amnesty being granted to the members of DHD(J), the same was yet to materialize, and, on the other hand, it a lso indicated that the said organization was indulging in terrorist activities. Accordingly, in view of the definition of \terrorist act\ in Section 15 of the 1 967 Act and the provisions of Sections 13 and 17 thereof, there was little doubt that even on the date when the petitioner was apprehended, DHD(J) was indulging in terrorist acts, although, it came to be declared as an \unlawful association \ sometime later. Mr. Rawal urged that having regard to the above, the Special L eave Petitions filed against the order of the High court refusing to grant bail were liable to be dismissed. 16. We have carefully considered the submissions made on behalf of the respectiv e parties and we are unable to agree with Mr. Ghosh that the provisions of the U nlawful Activities (Prevention) Act, 1967, would not be attracted to the facts o f the case. We are also unable to accept Mr. Ghosh’s submissions that merely bec ause DHD(J) had not been declared as an \unlawful association\ when the petition er was arrested, the said organization could not have indulged in terrorist acts or that the petitioner could not have had knowledge of such activities. 17. Accordingly, Mr. Ghosh’s submissions regarding the grant of statutory ba il have to be rejected since, in our view, the learned Sessions Judge (Special C ourt) had the jurisdiction to extend the time for completion of the investigatio n. (xiv) Thereafter, three more persons, namely, Jayanta Kumar Ghosh, Debasish B hattacharjee @ Bappi and Sandeep Kumar Ghosh @ Sambhu, came to be arrested on 30 .10.2009. On their production before the Special Court, they were remanded to c ustody. (xv) A charge-sheet has come to be laid, on 17.11.2009, before the learned S pecial Court, by the NIA against as many as 14 accused persons including those p ersons, whose names have been mentioned above. The three accused persons, namel y, Jayanta Kumar Ghosh, Debasish Bhattacharjee @ Bappi, and Sandeep Kumar Ghosh @ Sambhu, had jointly applied for bail, but their applications for bail were rej ected by the learned Special Court on 31.12.2009. As against the order, rejecti ng their prayer for bail, as indicated above, they have preferred appeals, under Section 21 of the NIA Act, to this Court. Similarly, accused Ashringdaw Waris a nd accused Samir Ahmed, too, on failing to obtain bail from the learned Special Court, have, after filing of the charge-sheet against them, preferred appeals an d all these appeals, as mentioned above, have been heard together and are being disposed of by this common judgment and order. (xvi) As far as accused Redaul Hussain Khan is concerned, he filed, after the charge-sheet already stood laid by the NIA, an application for bail in the Speci al Court, at Guwahati, on the ground of his sickness. By order, dated 25.01.2010 , the learned Special Judge granted interim bail to accused Redaul Hussain Khan and this direction for interim bail was, eventually, made absolute on 29.01.2010 . Aggrieved by the order, dated 29.01.2010, whereby accused Redaul Hussain Khan was granted bail, the NIA preferred an appeal, which gave rise to Criminal Appea l No.25/2010. The appeal has been allowed and the order, granting bail in favour of accused Redaul Hussain Khan, has been set aside by a separate judgment and o rder delivered by us. SUBMISSIONS 6. Appearing on behalf of the accused-appellant, Jayanta Kumar Ghosh, Mr. P K Goswami, learned Senior counsel, has pointed out that the appellant, on being informed by the NIA, that his presence was needed by the NIA, had appeared befor e the investigating agency, both in Delhi and also in Guwahati, he was arrested on 31.10.2009 and remanded to judicial custody and the charge-sheet of the case has been submitted on 17.11.2009. 7. It is contended by Mr. Goswami that the appellant, Jayanta Kumar Ghosh, is a businessman, he is a catering contractor under the Railways, there are abou t 400 employees working under him, he has vast business, he has his roots in the society and there is no chance of his absconding. The appellant, submits Mr. Go swami, has been cooperating with the investigating agency, his father died after his arrest and he was allowed to go on conditional bail on 16.12.2009 and remai ned on bail till 21.12.2009. According to Mr. Goswami, the conduct of appellant, Jayanta Kumar Ghosh, during investigation and even during the period, when he h ad enjoyed conditional bail, was not such, which could raise reasonable apprehen sion of his either absconding or tampering with witnesses. 8. Taking this Court traverse through various materials, which the NIA clai ms to have collected during investigation, Mr. Goswami submits that there is no truth in any of the allegations made against the appellant, Jayanta Kumar Ghosh. Mr. Goswami also submits that the appellant, Jayanta Kumar Ghosh, was simply a businessman and knew persons like Mohit Hojai merely as a politician and an elec ted functionary of North Cachar Hills Autonomous Council (in short, ’NCHAC’). Th e appellant, Jayanta Kumar Ghosh, according to Mr. Goswami, had no idea as to wh at the actual game plan of accused Mohit Hojai was, the appellant never carried any money for, or on behalf of, Mohit Hojai or Niranjan Hojai and/or handed over the same for being taken out of the country, as alleged by the NIA, by hawala o peration, for purchase of arms and ammunitions. The appellant, Jayanta Kumar Gho sh, was, submits Mr. Goswami, never involved in any acts of forcing any Governme nt servant or anyone else to place supply orders or to make payment for material s, which were never supplied. The appellant, in fact, contends Mr. Goswami, neve r owned any of the business concerns, namely, Maa Traders, Jeet Enterprise, Lokn ath Trading, etc., which had allegedly collected orders by