Allowed

The National Investigation Agency v. Shri K. Hutoi Sema and Anr.

Gauhati HC8 May 2018Crl.A./417/2017

Case brief

AI extract

What is this about?

The Gauhati High Court allowed three criminal appeals filed by the NIA against orders granting bail to three accused persons. The High Court held that despite the accused being government servants who claimed coercion, the offences involved under the UAPA were prima facie true, making bail unjustified under Section 43D(5).

What did the court decide?

Bail granted to the three respondents in the appeals was set aside; respondents directed to surrender before Special Judge, NIA, Nagaland, Dimapur within 3 weeks.

The National Investigation Agency Vs Shri K. Hutoi… — Criminal Trial and Appeal | Gauhati HC (2018)

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GAHC010219772017

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.A. 416/2017

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THE NATIONAL INVESTIGATION AGENCY THROUGH THE SUPERINTENDENT OF POLICE , NIA, BRANCH OFFICE, GUWAHATI, ASSAM, MINISTRY OF HOME AFFAIRS, GOVT. OF INDIA

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VERSUS

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1:KEKHRIESATUO TEP and ANR, S/O SENTSI TEP. SUPERINTENDENT / CASHIER, DIRECTORATE OF SHERIES, KOHIMA, NAGALAND, R/O VILL. TEROGVUNYU, P.O. TSEMINYU TOWN, DIST. KOHIMA, NAGALAND, PIN 797109

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2:SMTI ASONO YHOSHU W/O ACCUSED SHRI KEKHRIESATUO TEP R/ LIERIECHAZOU, DIST. KOHIMA NAGALAND, PIN 797109 MOBILE 985618900

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Advocate for the Petitioner : Mr. J. A. HASSAN, SR. PP, NIA.

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Advocate for the Respondent : MR. P. KHATANIAR.

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MR. D. DAS.

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Crl.A. No. 417/2017

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THE NATIONAL INVESTIGATION AGENCY THROUGH THE SUPERINTENDENT OF POLICE NIA BRANCH OFFICE GUWAHATI ASSAM MINISTRY OF HOME AFFAIRS GOVT. OF INDIA VERSUS

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1:SHRI K. HUTOI SEMA and ANR S/O LATE KHUTOVI SEMA EXECUTIVE ENGINEER

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DEPTT. OF IRRIGATION AND FLOOD CONTROL KOHIMA, NAGALAND R/O HOUSE NO. 482 BAYAVU HILL LOWER P.O. KOHIMA, P.S.NORTH POLICE STATION DIST. KOHIMA, NAGALAND PIN 797109

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2:SMTI ELIKA H AYEM W/O ACCUSED SHRI K. HUTOI SEMA R/O HOUSE NO. 482 BAYAVU HILL LOWER P.O. KOHIMA, P.S. NORTH POLICE STATION DIST. KOHIMA, NAGALAND PIN 797109, MOBILE 8014117516

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Advocate for the Petitioner : Mr. J. A. HASSAN, SR. PP, NIA.

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Advocate for the Respondent : MR. P. KHATANIAR.

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MR. D. DAS.

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Crl.A. No. 419/2017

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THE NATIONAL INVESTIGATION AGENCY THROUGH THE SUPERINTENDENT OF POLICE NIA BRANCH OFFICE, GUWAHATI, ASSAM MINISTRY OF HOME AFFAIRS GOVT. OF INDIA

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VERSUS

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1:VILEPRAL AJA, S/O LATE TEPUNOL ADDITIONAL DIRECTOR ATTACHED TO DIRECTORATE OF AGRICULTURE KOHIMA, NAGALAND, R/O VILL. A G COLONY P.O. KOHIMA, P.S. KOHIMA SOUTH DIST. KOHIMA, NAGALAND.

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2:SH. G. IKUTO ZHIMOMI R/O VILL. THILIXU, DIST. KOHIMA NAGALAND MOBILE PHONE NO. 9436002245

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Advocate for the Petitioner : Mr. J. A. HASSAN, SR. PP, NIA.

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Advocate for the Respondent : MR. P. KHATANIAR. MR. D. DAS.

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BEFORE HON'BLE MR. JUSTICE UJJAL BHUYAN HON'BLE MR. JUSTICE NELSON SAILO

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ORDER

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Date : 08-05-2018

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(UJJAL BHUYAN, J)

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This order will dispose of the three criminal appeals.

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These appeals have been preferred by the National Investigation Agency (NIA) against the common order dated 17.10.2017 passed by the learned Special Judge, NIA, Nagaland at Dimapur granting bail to respondent No. 1 in the three appeals.

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The appeals have been preferred under Section 21 (4) of the National Investigation Agency Act, 2008.

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In Crl. Appeal No. 416/2017, Shri Kekhriesatuo Tep is respondent No. 1. He was arrested on 13.10.2017 in connection with RC Case No. 01/2016/NIA-GUW under Section 384 of the Indian Panel Code (IPC) read with Sections 7 & 8 of the Nagaland Security Regulations, 1962; Section 13 of the Drugs and Cosmetics Act, 1940; Section 25 (1 B) of the Arms Act, 1959 read with Sections 10, 13, 17 and 20 of the Unlawful Activities (Prevention) Act, 1967, for short UA(P) Act.

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In Crl. Appl. No. 417/2017, respondent No. 1 is Shri K. Hutoi Sema, who was also arrested on 13.10.2017 in connection with the aforesaid case.

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Likewise, in Crl. Appl. No. 419/2017 respondent No. 1 is Shri Vilepral Aja, who was also arrested in connection with the aforesaid case on 13.10.2017.

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All the three accused persons/respondent No. 1 had filed individual bail applications under Section 437 of the Code of Criminal Procedure, 1973 (CrPC) read with Section 43 (D) (5) of the UA(P) Act.

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All the bail applications were heard together on 16.10.2017 and by the common order dated 17.10.2017, the accused persons/respondent No. 1 were granted bail.

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It is against this order that the present bunch of criminal appeals have been preferred.

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The appeals were admitted for hearing on 27.11.2017.

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We have heard Mr. J. A. Hassan, learned Sr. Public Prosecutor, NIA for the appellant and Mr. P. Khataniar alongwith Mr. D. Das, learned counsel for the accused persons/respondent No. 1.

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Learned counsel for the appellant has taken us to the contents of the bail applications as well as the submissions made by learned counsel for the accused persons/respondent No. 1 as recorded by the learned Special Judge. He submits that on the basis of such contentions, no case for bail was made out having regard to the stringent conditions mentioned in Section 43 D(5) of the UA(P) Act. Referring to the impugned order passed by the learned Special Judge, he submits that learned Special Judge has himself recorded the finding that the accused persons had been paying “tax” to terrorists and have also recorded the finding that they had undoubtedly committed the offence. But learned Special Judge took the view that the accused persons/respondent No. 1 had committed the offence because of threat without there being any materials on record. Therefore, impugned order passed by the learned Special Judge is wholly unsustainable in law and is liable to be set aside.

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On the other hand, Mr. Khataniar, learned counsel for the accused persons/respondent No. 1 submits that the impugned order is a well reasoned one and therefore no interference is called for. Learned Special Judge has balanced the interest of both the prosecution and the defence whereafter the bail order was passed. Accused persons/respondent No. 1 are Government servants and they have all along been cooperating with the investigation of the case. Bail once granted should not be cancelled.

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Submissions made by learned counsel for the parties have been considered.

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Learned Special Judge considered Sections 17 & 40 of the UA(P) Act and thereafter held that the accused persons had been paying “tax” to different “underground” factions. As a matter of fact, he had examined the record which disclosed payment slips and other related documents indicating payment of money by the accused persons, who are all Government servants, to “underground factions” over a period of time. But having said that, learned Special Judge observed that none of the accused persons were sympathizers of any unlawful organizations and it was not that they had been paying “tax” at their own free will. They were

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compelled to do so. Therefore, he took the view that the accused persons would have to be differentiated from the other accused persons who were part of the unlawful organizations and indulging in extortion of money from Government departments. It was held as under:-

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“ I have heard the parties and on consideration of the parties it is clear on records that the main issue before us is whether the section 17 of the UA(P) Act under which the accused persons are charged may be considered as a record which is prima facie true barring the Court from considering the bail applications moved by the accused persons. It is seen that none of the sections 384 IPC, Section 10, 13, 20, of the UA(P) act and Section 7 & 8 NSR and 25 (1)(B) of the Arms Act, and Section 13 of the Drugs and Cosmetic Act are applicable to the accused persons. Hence, we are considering section 17 and section 40 of the UAP Act as agitating against the accused person since it has been shown that the accused has been paying tax to various underground factions. The fact that the accused have been paying tax to different UG factions is clear enough as the learned PP for the NIA has brought before the Court. Payment slips and other related documents pertaining to payment of tax which is drawn from the case diary. It is also explicitly mentioned by the PP NIA that the accused persons have on their own volition produced the incriminating documents to the NIA and there is no record to show that the accused persons are belligerent to the process of investigation. This being the position the defense which is mainly stressed upon by the Counsels is that none of the accused persons are sympathizers to any unlawful organization nor have they been paying tax at their own free will.

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This is the cardinal position of the accused persons which have to be differentiated with the accused who are part of the organization and extorting money from various departments of the Govt. of Nagaland.”

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Learned Special Judge thereafter considered the submissions of the defence counsel that money was paid by the accused persons/respondent No. 1 to the unlawful organizations on account of threat. While holding that the accused persons had undoubtedly committed offence it was qualified by saying that such commission of offence was prompted by an element of threat. Proceeding further, learned Special Judge held that prosecution could not show that the accused persons/respondent No. 1 were voluntarily contributing money to the outlawed outfits. He thereafter took the view that Court should differentiate between those who committed extortion on their own volition and those who were compelled to pay money due to threat and coercion. In such circumstances, learned Special Judge described the accused persons/respondent No. 1 as victims of circumstances whereafter bail was granted to them.

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Relevant portion of the impugned order dated 17.10.2017 is extracted hereunder:-

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“ I have considered this peculiar position which has a marked difference between the extortionist and the tax payers who are under constraint. It is also in all correctness by the learned Special PP, NIA to argue that the petitioners should take recourse to protection of the

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law enforcing agencies. However, in my considered view the position of the accused who are compelled to pay tax are precarious and there is no doubt that the law enforcing agencies may not always be there for their protection and penalty for violation which always looms is eminent. Under this given facts we are drawn to the cardinal principal of criminal jurisprudence which postulates that there can be no crime when there is no mens rea. It is apparent to see that the accused persons have undoubtedly committed offence but it is an offence which is prompted by element of threat. We are drawn to the Criminal Appeal No. 4 (K) of 2017 NIA Vs. Victo Swu which is relied upon by the Special PP, NIA where the submission of the learned PP NIA is recorded as “Thereafter the Ld PP NIA submitted that this document as a piece of evidence which would prove that the respondent/accused was regularly extorting money for NSCN (K) from Govt. officers and other individuals” this is explicitly clear that the present accused are victims of the extortionists, such as Victo Swu and there is the imperative duty cast upon the court to differentiate between this two individuals- those who commit extortion on their own volition and those who are compelled to pay tax by compulsion, this will serve the ends of justice. The mental exercise which is cast upon the special Judge to examine whether there is a prima facie true case in the instant case thus falls short of the requirement to tie the hands of the Court to consider bail in such cases. The prosecution has not been able to show that indeed the accused have been voluntarily contributing to the funding of the outlawed outfits to execute their nefarious activities. There is also nothing emanating from the CD brought for the perusal of the Court that the accused persons are sympathizers of the extortionist or UG factions, nor is there any evidence to show that the accused persons are active members of the outlawed organizations. There must be a line drawn which differentiate the likes of accused Victo Swu and the present accused persons. In the present facts the balance is more inclined to show that the accused are victims of circumstances and to hold them on equal footing with the terrorist would be grave injustice. Unless it can be shown that the accused are actually sympathizers of the outlawed outfits and they are driving fund on their own volition to sustain the outlawed organizations it would be prejudiced to conclude that there is a prima facie true evidence. The fact that the accused/petitioners have not taken security and have not reported the matter to the authority cannot equate them as terrorists.

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Hence, I derive at the conclusion that there is no prima facie true evidences against the accused persons to show that they are sympathizers and they have been voluntarily contributing to the outlawed organizations. I rule that the investigation agency have also no hindrances at all in securing any information from the accused persons as the NIA have admitted that the accused persons are voluntarily cooperating with the investigation by surrendering all relevant documents which were needed by the investigation. The accused persons also being Govt. servants and having deep root in the society there is no chance for them to jump bail.

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For the reasons recorded this Court finds no justification in lodging the accused persons under the judicial custody and also considering that the investigation has not prayed for any further period of detention in the police custody.

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Their cooperation to the investigation is secured as shown from the records and already reiterated by the NIA. For the reasons recorded this Court is of the view that the accused persons has made out a case for the privilege of bail.”

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Petitioners were arrested in connection with RC Case No. 01/2016 which was registered amongst others under Sections 10, 13, 17 and 20 of the UA(P) Act. Sections 17 and 20 which

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deal with punishment for raising funds for terrorist act and for being member of terrorist gang or organization are under Chapter IV of the UA(P) Act, which deals with punishment for terrorist activities. Section 17 of the UA(P) Act which was considered by the learned Special Judge provides that whoever provides funds to any person or persons knowing that such funds are likely to be used by such person or persons or by a terrorist organization or by a terrorist gang or by an individual terrorist to commit a terrorist act shall face imprisonment for a term not less than five years but which can extend to imprisonment for life with fine. Under Explanation (c), providing funds in any manner for the benefit of or to an individual terrorist or terrorist gang or terrorist organization shall be construed to be an offence.

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At this stage, we may examine the provisions of Section 43 D (5) of the UAP Act, 1967 which is extracted hereunder:-

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“ 5. Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI 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:

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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”

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Thus, Section 43 D(5) would be attracted when a person, who is arrested for allegedly committing an offence punishable under Chapters IV and VI of the UA(P) Act, seeks bail.

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A careful analysis of the provisions contained in Section 43 D (5) of the UAP Act would go to show that the entire provision is couched in negative language. Its starts with a nonobstante clause i.e. having overriding effect over the provisions contained in the Cr.PC. Two conditions must be fulfilled before a person can be released on bail. These two conditions are – (1) Public Prosecutor should be given an opportunity of hearing on the bail application; (2) accused should not be released on bail if the Court on a perusal of the case diary or the report under Section 173 Cr.PC formed the opinion that there are reasonable grounds for believing that the accusation against the accused person is prima facie true.

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In the instant appeals, we have already noticed that learned Special Judge has recorded a finding that the accused persons have undoubtedly committed the offence but qualified the

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same by saying that the offence was prompted by element of treat. Though such finding of the learned Special Judge certainly cannot be construed as conclusive finding on merit because it was recorded for the purpose of considering the prayer for bail, nonetheless it is a tentative finding. In other words, this view of the learned Special Judge is a prima facie view. If this is indeed the prima facie view taken by the learned Special Judge, then the second condition of Section 43 D (5) would be attracted. If the learned Special Judge had taken the prima facie view that the accused persons committed the offence of paying money to terrorists, having regard to the mandate of Section 43 D (5), prayer for bail could not have been acceded to. The view taken by the learned Special Judge that accused persons were victims of circumstances and were compelled to pay money to terrorists because of threat is beyond the record at this stage of the proceeding and is something not visualized under Section 43 D (5).

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At this stage, we may also examine the provisions of Section 40 of the UA(P) Act which forms part of Chapter VI of the said Act dealing with terrorist organizations, which was also adverted to by the learned Special Judge.

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Section 40 of the UA(P) Act deals with the offence of raising fund for a terrorist organization. Section 40 (1) (c) says that a person commits the offence of raising fund for a terrorist organization who with intention to further the activity of a terrorist organization, provides money or other property and knows or has reasonable cause to suspect that it would or might be used for the purposes of terrorism.

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The accused persons/respondent No. 1 are all Government servants. Learned Special Judge has recorded after going through the record that they had been paying money to different “underground” organizations for which even receipts had been issued. Prior to the NIA stepping in, they had not informed any authority not to speak of the police that they were being subjected to extortion and compelled to pay extortion money to the “underground” outfits due to threat and coercion.

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In such circumstances and having regard to the serious nature of the accusation and the mandate of Section 43 D (5) of the UA(P) Act, we are of the view that grant of bail to the accused persons/respondent No. 1 by the learned Special Judge was not justified.

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Accordingly, we set aside the order dated 17.10.2017.

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All the three accused persons/respondent No. 1 shall surrender before the Special Judge, NIA, Nagaland at Dimapur within 3 (three) weeks.

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Appeals are accordingly allowed.

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JUDGE

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JUDGE