Unlawful Activities (Prevention) Act, 1967 – ss. 39, 40, 43D(5) – Bail under –Special Judge found that appellants had not voluntary succumbed to the demands of the organization and investigating agency admitted that accused persons were cooperating in investigation –Bail was granted by the Special Judge – However, High Court reversed the order of the Special Judge – Before the Supreme Court, appellants contended that they were forced to make payments – Held: There are twin requirement under sub-section (5) of s. 43D – First one being that the public prosecutor has to be given an opportunity of being heard – Second one, that the Court is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true –In the instant case, the first requirement was met – As far as second requirement is concerned, a perusal of Sections 39 and 40 of the said Act would itself reveal, that for an act to constitute as an offence within the meaning of that section, it has to be done with the intention of furthering the activities –The Court has to differentiate between those who commit extortion on their own volition and those who are coerced to pay by compulsion –The Special Judge found that the prosecution was not able to show that the accused had voluntarily contributed to the funding of the outlawed outfits to execute their nefarious activities – Prima facie opinion of Special Judge cannot be said to be perverse – Impugned orders quashed and set aside.
Allowing the appeal, the Court
HELD: 1. The additional requirement, as provided under subsection (5) of Section 43D of the said Act is twin. The first one being that the public prosecutor has to be given an opportunity of being heard. The second one, that the Court is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true. [Para 14][529-C]
2. Undisputedly, in the present case, the first requirement has been complied with. Insofar as the second requirement with regard to Court arriving at a satisfaction that the accusation against such persons is prima facie true is concerned, this Court would not like to go into the elaborate discussion of the evidence, inasmuch as that may hamper the rights of the parties at the stage of trial. [Para 15][529-D-E]
3. However, it may be noted that a perusal of Sections 39 and 40 of the said Act, as have been interpreted by this Court, would show that a prima facie satisfaction has to be arrived that the acts which are committed by the accused have been committed with intention to further the activity of a terrorist organization. [Para 17][529-G]
4. The Special Judge has himself distinguished cases of the persons who have indulged into extortion for furthering the activities of the organization and the persons like the present appellants, who were government servants, and compelled to contribute the amount. This Court, therefore, find that it cannot be said that the prima facie opinion, as expressed by the Special Judge, could be said to be perverse or impossible. [Para 19][530B] Thwaha Fasal v. Union of India (2021) SCC OnLine SC 1000; National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 : [2019] 5 SCR 1060; Ranjitsing Brahhmajeetsing Sharma v. State of Maharashtra and Another (2005) 5 SCC 294 : [2005]
3 SCR 345 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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