Crl.A. 73/2011 BEFORE HON’BLE THE CHIEF JUSTICE MR MADAN B. LOKUR HON’BLE MR. JUSTICE H. BARUAH (MADAN B. LOKUR, CJ) The appellant has preferred this appeal against an order dated 1-4-20 11 passed by the Special Judge, NIA, Assam, Guwahati in Misc Bail Application No .17/2011 declining bail to the appellant. In our opinion, bail ought to have bee n granted to the appellant. 2. The appellant has been in custody since 18.8.2010 and is accused of offe nces under Sections 120(B), 121, 121(A) and 122 of the IPC read with Sections 16 , 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967. A charge shee t has been filed on 14.2.2011 against the appellant in respect of these offences , in which she is Accused No. 14. 3. While the offences appear to be rather serious, the allegations against the appellant are completely innocuous and belie the provisions of the statutes concerned. 4. The allegations contained in the charge sheet against the appellant are mentioned only in paragraph 17.28 thereof. This paragraph reads as follows:- 17.28. In pursuance of the said conspiracy accused Mrs. Londhoni Devi ( A-14) as an active member of the proscribed terrorist organisation, UNLF had rem ained associated with every act of commission and omission of UNLF carried out i nside and outside India. The accused as a member of UNLF in pursuance of the con spiracy as investigated had coordinated and organised activities of UNLF. In fur therance of such conspiracy, Mrs. Londhoni Devi (A-14) had used different mobile phones in assumed names and identities. UNLF, upon her arrest had made desperat e attempts to bail her out so as to continue the ongoing conspiracy of waging wa r against India. 5. The conspiracy referred to above in paragraph 17.28 of the charge sheet is stated to be a conspiracy of waging war against India. Not an iota of evidenc e, or even a suggestion, has been pointed out to us that the appellant is a cons pirator in waging war against India. 6. The substantive allegations made against the appellant suggest: (i) That she is an active member of a terrorist organisation called the United N ational Liberation Front (UNLF); (ii) That she is associated with every act of commission of the UNLF carried out inside and outside India; (iii) That she, in pursuance of the conspiracy of waging war against India had c oordinated and organised activities of the UNLF; (iv) That she had used different mobile phones in assumed names and identities; (v) That she was sought to be released on bail at the instance of the UNLF so as to continue the conspiracy of waging war against India. 7. As can be seen from the allegations made against the appellant, they are extremely general in nature. Not a single specific act has been attributed to h er. 8. During the course of submissions before us, learned counsel for the appe llant referred to the statements made by two witnesses who are the only persons to have even mentioned the appellant. 9. To appreciate the allegations, it is necessary to rephrase the statement s of these two witnesses. The first witness is PW-6, that is, Phanidhar Das. Thi s witness is the landlord of the appellant’s husband in Guwahati. The only thing that he says in his statement is that Jeeten Singh (husband of the appellant) h ad confessed before the police that he and the accused are members of a banned o rganisation, that is, UNLF in Manipur. This witness does not say anything more t han what we have mentioned above. 10. The second witness is PW-40, that is, Ms. Wangkheimayum Amusana. This wi tness appears to be an old friend of the appellant. All that she says is that th e appellant and her husband were active members of the UNLF. Even though she was aware of this, she nevertheless continued her friendship with them because the appellant was her close friend since childhood. The witness does not say anythin g with regard to the role of the appellant in the activities of the UNLF. 11. The above is the only evidence brought on record to suggest that the app ellant is waging war against India and that she has violated the provisions of t he Unlawful Activities (Prevention) Act, 1967 (for short the Act). 12. At this stage we may mention that the learned Additional Solicitor Gener al appearing on behalf of the NIA had shown us the statements of the appellant’s husband Jeeten Singh, the statement of R.K. Meghen @ Sanayaima and the statemen t of Maibam Sarat Singh @ Chaoren @Naba Kumar recorded during the course of inve stigations. He promised to supply us copies of the statements but unfortunately did not do so. His instructing counsel was also at a complete loss in this regar d and even he did not give us copies of the statements referred to by the learne d Additional Solicitor General. Ironically, learned counsel for the appellant ha s provided us with copies of the statements. 13. All that Jeeten Singh says in his statement to the Additional Superinten dent of Police is that he and his wife (the appellant) are active members of the UNLF. They are involved in various activities for strengthening the outfit like fund raising, mobilizing the public and arranging hide outs for its senior lead ers and cadres. R.K. Meghen @ Sanayaima says in his statement that he knows the appellant for a long time as her brother Jayanta was a senior member of the UNLF. The UNLF had o rganized its political classes secretly for newly recruited cadres in her house for three months in 1986. Jayanta gave lectures in those classes and that Jeeten Singh is the Chief Revenue Officer of the UNLF. Maibam Sarat Singh @ Chaoren @ Naba Kumar says in his statement that the appella nt is an active member of the UNLF. She is involved in various activities for st rengthening the outfit like fund raising, mobilizing the public and arranging hi de outs for its senior leaders and cadres. His statement in this regard is a rep roduction of the statement of Jeeten Singh. 14. So far as the documentary evidence relied on by the NIA is concerned, wh at has been pointed out to us are a few documents apparently taken from some com puters belonging to members of the UNLF. These print-outs show that some payment s were made to the appellant by the UNLF for various reasons, such as, reimburse ment of medical bills, house construction loan, travelling allowance etc. From t hese transactions, it is sought to be contended on behalf of the NIA that the ap pellant had financial dealings with the UNLF which show that she is an active me mber of the UNLF. 15. We have considered the submissions made by the learned Additional Solici tor General on behalf of the NIA and find that this is an appropriate case for t he grant of bail to the appellant. 16. At the outset we must state that absolutely no submissions were made by the learned Additional Solicitor General whatsoever to support the charge that t he appellant was waging war against India. In other words, absolutely no content ion whatsoever was raised by the learned Additional Solicitor General to suggest that the appellant had committed any offence under the IPC. The only submission s of the learned Additional Solicitor General were with reference to the provisi ons of the Unlawful Activities (Prevention) Act and nothing else. 17. At this stage it is important to note that when the Unlawful Activities (Prevention) Act was first enacted in 1967, the UNLF was not described as a terr orist organisation. Indeed, the said Act did not deal with terrorism or any terr orist organization. The said Act only dealt with associations carrying out unlaw ful activities which touched upon the sovereignty and integrity of India, includ ing cession of a part of the territory of India or secession of a part of the te rritory of India from the Union. 18. There were, of course, penal consequences attached to an unlawful associ ation and to its members. At this stage it must be stated that it is not clear w hether the UNLF was declared as an unlawful association in 1986 or not, but we a re proceeding on the basis that it was so. At best, therefore, it can be said th at even in 1986 the UNLF was an unlawful association and the appellant was an ac tive member of such an unlawful association. But the unlawful activities of the UNLF or the appellant in 1986 do not make her a terrorist under the law as it st ands today and she certainly cannot be punished for those unlawful activities un der the statute as it exists today. There is a bar provided by Article 20 (1) of the Constitution of India. Therefore, reliance placed by the learned Additional Solicitor General on the statement of R.K. Meghen @ Sanayaima to contend that t he appellant has been a terrorist all along is completely misplaced. The only re levance of that statement would be to show the association of the appellant with the UNLF since 1986. 19. The Unlawful Activities (Prevention) Act underwent drastic amendments i n 2004. By the amendments made in 2004, terrorist organisations were brought wit hin the fold of the Unlawful Activities (Prevention) Act. A terrorist organisati on was defined to mean an organisation listed in the Schedule of the Act or an o rganisation operating in the same name as an organisation so listed. The amendme nt listed the UNLF as a terrorist organisation and, therefore, it is only from 2 004 onwards that the UNLF can be described as a terrorist organisation. The acti vities of the members of the UNLF prior to 2004 were not the activities of a ter rorist organisation for the purposes of the Unlawful Activities (Prevention) Act but were the activities of an unlawful association. 20. The amendment brought about in 2004 also included a chapter on punishmen t for terrorist activities. We are really concerned with some of the Sections wi th which the appellant has been charged, namely, Sections 16, 17, 18 and 20. The se Sections (and Section 15 which is equally important) as they stand today (aft er amendments in 2004 and 2008) read as follows: 15. Terrorist act.-Whoever does any act with intent to threaten or likely to thr eaten the unity, integrity, security or sovereignty of India or with intent to s trike terror or likely to strike terror in the people or any section of the peop le in India or in any foreign country,- (a) by using bombs, dynamite or other explosive substances or inflammable substa nces or firearms or other lethal 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 any other means of whatever nature to ca use or likely to 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 the life of the commun ity in India or in any foreign country; 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 the Government of India, any State Government or any of their agenc ies; or (b) overawes by means of criminal force or the show of criminal force or attempt s to do so or causes death of any public functionary or attempts to cause death of any public 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 Sta te Government or the Government of a foreign country or any other person to do o r abstain from doing any act, commits a terrorist act. Explanation.-For the purpose of this section, public functionary means the const itutional authorities and any other functionary notified in the Official Gazette by the Central Government as a public functionary. 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 deat h or imprisonment for life, and shall also be liable to fine; (b) in any other case, 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 sha ll also be liable to fine. 17. Punishment for raising funds for terrorist act.-Whoever, in India or in a fo reign country, directly or indirectly, raises or collects funds or provides fund s to any person or persons or attempts to provide funds to any person or persons , knowing that such funds are likely to be used by such person or persons to com mit a terrorist act, notwithstanding whether such funds were actually used or no t for commission of such act, shall be punishable with imprisonment for a term w hich shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. 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 terrorist act or any act preparatory to the commission of a terrorist act, shall be punishable with impr isonment 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. 20. Punishment for being member of terrorist gang or organisation.-Any person wh o 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 ex tend to imprisonment for life, and shall also be liable to fine. 21. A terrorist act has been defined under Section 15 of the said Act as abo ve. The admitted position is that no terrorist act has been attributed to the ap pellant. It is nobody’s case that the appellant has committed any act which has resulted in the death of any person or caused any injury to anybody at any point of time. Therefore, prima facie, on the materials presently made available to u s it is quite clear that the appellant has not committed any offence punishable under Section 16 of the Unlawful Activities (Prevention) Act. 22. Insofar as Section 17 of the said Act and the allegation of raising fund s for terrorist acts are concerned, there is absolutely nothing to suggest that the appellant directly or indirectly raised or collected funds for any activity of the UNLF let alone for the commission of any terrorist act. On the contrary, according to the learned Additional Solicitor General, the appellant was the rec ipient of funds from the UNLF. Ex facie, therefore, even assuming the computer p rintouts indicated financial transactions between the UNLF and the appellant, th ose financial transactions relate to funds received by the appellant for medical reimbursement, house loan, travelling allowances etc. and they do not relate to funds collected or raised by her or provided by her to any person for the commi ssion of any terrorist act. 23. As regards Section 18 of the Act, again this is relatable to a terrorist act. But, as we have mentioned above no terrorist activity has been attributed to or even suggested against the appellant. Section 18 of the said Act also does not apply to the facts of the present case. 24. The main thrust of the contentions of the learned Additional Solicitor G eneral were directed towards showing that the appellant was liable to punished u nder Section 20 of the Act which provides for punishment to a member of a terror ist gang or organisation which is involved in a terrorist act. 25. Significantly, Section 20 of the said Act provides for great latitude in the imposition of a sentence. The Section provides for sentence from the rising of the Court to imprisonment for life. What is the reason for this wide margin? The reason for this is quite obvious, namely, that it caters to the extent of i nvolvement in the activities of the terrorist organization or terrorist gang - i f the involvement is superficial, minimal sentence may be imposed by the Trial J udge, but if the involvement is overwhelming. life imprisonment may be imposed. 26. As far as the appellant is concerned, only PW-40 has stated that the app ellant was an active member of the UNLF. Additionally, Jeeten Singh and Maibam S arat Singh @ Chaoren @Naba Kumar have stated before the Investigating Officer, p arrot-like, that the appellant is an active member of the UNLF without specifyin g anything. The latter two statements can hardly be used as evidence against the appellant. The statement of PW-40 is only general and even if were true, it wou ld be inadequate to sentence the appellant to life imprisonment. 27. Recently, the Supreme Court held in Arup Bhuyan vs. State of Assam (Crim inal Appeal No.889/2007) decided on 3.2.2011 that mere membership of a banned o rganisation will not make a person a criminal unless he resorts to violence or i ncites people to violence or creates public disorder by violence or incitement t o violence . Applying the same rationale to the membership of the appellant to t he UNLF, it can be said that her mere membership of the UNLF will not make her a criminal. 28. However, it must be noted that the learned Additional Solicitor General sought to make a distinction between a banned organisation and a terrorist or ganisation . He contended that even mere membership of a terrorist organisation would attract the penal provisions of Section 20 of the Unlawful Activities (Pre vention) Act. While he may be correct, it cannot be forgotten that Parliament ha s provided a huge margin in the quantum of punishment for membership of a terror ist organization. If mere membership of a terrorist organisation is expected to invite serious penal consequences, the Legislature would not have given such a w ide discretion to the Trial Judge in the matter of sentencing. We are, therefore , of the opinion that the very fact that Parliament has given a wide discretion to the Trial Judge is a pointer to the view that membership of a terrorist organ isation does not, per se, attract severe penalty and that it can even attract th e minimal penalty. The learned Additional Solicitor General is not right in argu ing for denial of bail to the appellant only because she is a member of a terror ist organisation. 29. Assuming for the sake of argument that the appellant is an active member of a terrorist organisation, even then the nature of active involvement would d epend on the evidence led by the prosecution. On a given set of facts, even an a ctive member may be sentenced to imprisonment only for a short while - every act ive member need not be sentenced to imprisonment for life. Therefore, merely bec ause an allegation has been made that the appellant is an active member of a ter rorist organisation such as the UNLF would not ipso facto attract the severest p enalty under the statute. If we go by the statement of PW-40, it appears to us t hat apart from merely stating that the appellant is an active member of the UNLF , no other allegation has been made against her which would warrant denial of ba il. 30. The final submission of the learned Additional Solicitor General was tha t the NIA has only to show that there is a prima facie case against the appellan t and if that prima facie case is shown, then bail should automatically be denie d to her. The learned Additional Solicitor General relied upon Section 43-D(5) o f the Unlawful Activities (Prevention) Act which reads as follows :- 43-D. Modified application of certain provisions of the Code.- (1) & & & (2) & & & (3) & & & (4) & & & (5) Notwithstanding anything contained in the Code, no person accused of an offe nce punishable under Chapters IV and VI of this Act shall, if in custody, be rel eased 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 hi s 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. 31. As required by the proviso to Section 43-D(5) of the Unlawful Activities (Prevention) Act, we have gone through the charge sheet against the appellant. On a perusal thereof, we find that apart from a general statement made in paragr aph 17.28 thereof, no specific allegation has been made against the appellant to suggest that her activities were such as to warrant her continued incarceration . In fact, no prima facie case is made out against the appellant for violation o f any of the provisions for which she has been charge sheeted. 32. Insofar as the contents of the case diary are concerned, we have already noted that the learned Additional Solicitor General had promised that he would show us the materials on the basis of which such serious charges have been made against the appellant, but he failed to do so. Ironically, it is the appellant w ho has placed before us the statements sought to be relied upon by the learned A dditional Solicitor General. We have perused the statements and have discussed t hem above and do not feel the necessity of repeating what has already been said. Suffice it to say, the privileged statements also do not show any prima facie having been made out for the continued incarceration of the appellant. 33. To conclude, in our opinion, there is no prima facie material to hold th at the appellant has committed any offence under the provisions of the Unlawful Activities (Prevention) Act. Even if it is assumed for the sake of argument that the appellant has committed an offence, that offence is punishable under Sectio n 20 of the said Act, which gives a very wide discretion to the Trial Judge in t he matter of sentencing the appellant. We do not know what material the NIA will produce before the learned Trial Judge nor we know what sentence the learned Tr ial Judge will impose upon the appellant (in case she is found guilty) but it is quite possible that the sentence might be minimal. Therefore, we feel that it w ill not be appropriate to keep the appellant in custody any further, considering that she has already been in custody since 19-8-2010, that is, for a period of about 10 months. 34. We may again note that no submissions were made before us with regard to any violation of the provisions of the IPC stated to have been committed by the appellant. 35. For the purposes of grant of bail, we cannot overlook the fact that the appellant is stated to be the mother of two young school going children, aged ab out 7 years and 4