Vernon vs The State of Maharashtra & Anr.

Unlawful Activities (Prevention) Act, 1967 – s.15(1)(a)-(c) – When not attracted – Held: In none of the materials which have been referred to by the prosecution, the acts specified to in subclause (a) of s.15(1) can be attributed to the appellants – Nor there is any allegation against them which would attract sub-clause (c) of s.15(1) – Further, mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of s.15(1)(b) – Thus, prima facie, there is no case against the appellants u/s.15(1) (b).

Unlawful Activities (Prevention) Act, 1967 – s.20 – Interpretation given to s.20 by Bombay High Court in Dr. Anand Teltumbde vs. National Investigation Agency and Another case for testing as to who would be a member of terrorist gang or terrorist organisation, affirmed – In the present case, on facts, s.20 cannot be made applicable against the appellants at this stage of the proceeding, on the basis of available materials. Unlawful Activities (Prevention) Act, 1967 – s.2(k), 2(m), 15 – Held: “Terrorist act” as defined u/s.2(k) carries the meaning assigned to it in s.15 – This Section also stipulates that the expressions “terrorism” and “terrorist” shall be construed accordingly – This implies construction of these two expressions in the same way as has been done in s.15 – “terrorist organisation” has been independently defined in s.2(m) – But so far as the word “terrorist” is concerned, in this Section also, the interpretation thereof would be relatable to the same expression as used in s.15 – An expression used in different parts of a statute shall ordinarily convey the same meaning unless contrary intention appears from different parts of the same enactment itself – No such contrary intention is found in the 1967 Act – Interpretation of Statutes. Bail – Duty of the Court – Held: There is a duty of the Court to form an opinion on perusal of the case diary or the report made u/s.173, CrPC that there are reasonable grounds for believing that the accusations against such persons are prima facie true while considering the prayer for bail, to reject prayers for bail of the appellants – Code of Criminal Procedure, 1973 – s.173 – Criminal Law.

Unlawful Activities (Prevention) Act, 1967 – ss.38, 20 – Offence relating to membership of a terrorist organisation – Held: To bring within the scope of s.38, it would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organisation – But there must be intention to further the activities of such organisation on the part of the person implicated under such provision – The same line of reasoning in respect of membership of a terrorist organisation u/s. 20, ought to apply in respect of an alleged offender implicated in s.38 – There must be evidence of there being intention to be involved in a terrorist act – So far as the appellants are concerned, at this stage there is no such evidence which can be relied on.

Bail – Prima facie “test” – Held: It would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth – Criminal Law.

Unlawful Activities (Prevention) Act, 1967 – ss.38, 39, 43D

(5) – “intention to further activities” – Held: The interpretation given to the phrase “intention to further activities” of terrorist organisation could also apply in the same way in relation to s.39 – In the present case, there has been no credible evidence against the appellants of commission of any terrorist act or enter into conspiracy to do so to invoke the provisions of s.43D (5).

Bail – Unlawful Activities (Prevention) Act, 1967 – Narcotic Drugs and Psychotropic Substances Act, 1985 – s.37 – Held: The restrictions on the Court while examining the question of bail under the 1967 Act is less stringent in comparison to the provisions of s.37, Narcotic Drugs and Psychotropic Substances Act, 1985 – Criminal Law.

Bail – Unlawful Activities (Prevention) Act, 1967 – Bail restricting sections – Jurisdiction of Constitutional Court – Held: A bail restricting clause cannot denude the jurisdiction of a Constitutional Court in testing if continued detention in a given case would breach the concept of liberty enshrined in Article 21, would apply in a case where such a bail-restricting clause is being invoked on the basis of materials with prima facie low-probative value or quality – Constitution of India – Article 21 – Criminal Law.

Criminal Law – Stringent provisions of a statute – Interpretation of – Held: When the statutes have stringent provisions, the duty of the Court would be more onerous – Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act – Unlawful Activities (Prevention) Act, 1967 – Terrorist and Disruptive Activities (Prevention) Act, 1987 – Interpretation of Statutes.

Allowing the appeals, the Court

HELD: 1.1 As it would be evident from the analysis of the evidence cited by the NIA, the acts allegedly committed by the appellants can be categorised under three heads. The first is their association with a terrorist organisation which the prosecution claims from the letters and witness statements. But what this Court must be conscious of, while dealing with prima facie worth of these statements and documents is that none of them had been seized or recovered from the appellants but these recoveries are alleged to have been made from the co-accused. The second head of alleged offensive acts of the appellants is keeping literatures propagating violence and promoting overthrowing of a democratically elected government through armed struggle. But again, it is not the NIA’s case that either of the two appellants is the author of the materials found from their residences, as alleged. None of these literatures has been specifically proscribed so as to constitute an offence, just by keeping them. Thirdly, so far as AF is concerned, some materials point to handling of finances. But such finances, as per the materials through which the dealings are sought to be established, show that the transaction was mainly for the purpose of litigation on behalf of, it appears to us, detained party persons. The formation of or association with a legal front of the banned terrorist organisation has also been attributed to AF, in addition. The High Court while analysing each of these documents individually did not opine that there were reasonable grounds for believing that the accusations against such persons were not prima facie true. Those offences which come within Chapters IV and VI of the 1967 Act, charged against the appellants, are Sections 16, 17, 18, 18B, 20, 38, 39 and 40. In none of the materials which have been referred to by the prosecution, the acts specified to in sub-clause (a) of Section 15(1) of the 1967 Act can be attributed to the appellants. Nor there is any allegation against them which would attract subclause

(c) of Section 15(1) of the said statute. As regards the acts specified in Section 15(1) (b) thereof, some of the literature alleged to have been recovered from the appellants, by themselves give hint of propagation of such activities. But there is nothing against the appellants to prima facie establish that they had indulged in the activities which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts by the appellants to do so. Neither there is allegation against them of causing death of any public functionary or attempt to cause death of such functionary. Mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of Section 15(1)(b) of the said Act. Thus, prima facie, this Court cannot reasonably come to a finding that any case against the appellants under Section 15(1) (b) of 1967 Act can be held to be true. [Paras

24 and 26][903-B-F; 904-B-E]

1.2 Section 17 of the 1967 Act deals with punishment for raising funds for terrorist acts. Here also the funds, dealing with which has been attributed to AF, cannot be connected to any terrorist act. In the case of Dr. Anand Teltumbde the same account statement was referred to. There is also a request made to ‘S’ from an unnamed person to ask AF to manage the financial expenses of “these cases”. The name of another ‘A’, with the surname Bhelke has surfaced in Annexure “R-19” to the NIA’s counter-affidavit in AF’s case. This is a copy of a witness statement. In absence of any form of corroboration at the prima facie stage it cannot be presumed that it was the same Arun (i.e., AF) who had received money from ‘D’. The prosecution has also not produced any material to show that actual money was transmitted. The communication dated 5th November 2017 (“R5”), purportedly addressed by ‘S’ to ‘P’ does not speak of any payment being made to AF. The rationale applied by the Bombay High Court in the abovequoted passage of the judgment in the case of Dr. Anand Teltumbde, which has been sustained by this Court, ought to apply in the case of AF as well. [Paras 27 and 28][904-E-F; 905-D-F]

1.3 It is not possible to form an opinion that there are reasonable grounds for believing that the accusation against the appellant of committing or conspiring to commit terrorist act is prima facie true. The witness statements do not refer to any terrorist act alleged to have been committed by the appellants. The copies of the letters in which the appellants or any one of them have been referred, record only third-party response or reaction of the appellants’ activities contained in communications among different individuals. These have not been recovered from the appellants. Hence, these communications or content thereof have weak probative value or quality. That being the position, neither the provisions of Section 18 nor 18B can be invoked against the appellants, prima facie, at this stage. The association of the appellants with the activities of the designated terrorist organisation is sought to be established through third party communications. Moreover, actual involvement of the appellants in any terrorist act has not surfaced from any of these communications. Nor there is any credible case of conspiracy to commit offences enumerated under chapters IV and VI of the 1967 Act. Mere participation in seminars by itself cannot constitute an offence under the bail-restricting Sections of the 1967 Act, with which they have been charged. [Para 29][905-FH; 906-A-B]

1.4 So far as application of Section 20 of the 1967 Act is concerned, the Bombay High Court in the case of Dr. Anand Teltumbde construed the said provision. This judgment has not been interfered with and this Court also affirm this interpretation given to Section 20 of the 1967 Act for testing as to who would be a member of terrorist gang or terrorist organisation. Moreover, no material has been demonstrated by the NIA that the appellants are members of the terrorist organisation. AF’s involvement with IAPL as a frontal organisation of the Communist Party of India (Maoist) is sought to be established, and that has been referred to in the chargesheet as well. But the link between IAPL and the CPI (Maoist) has not been clearly demonstrated through any material. Reference to AF and VG as members of the CPI (Maoist) appears from the statement of protected witness, but that link is made in relation to events between the years 2002-2007, before the organisation was included in the First Schedule to the 1967 Act. No evidence of continued membership after the party was classified as a terrorist organisation has been brought to this Court’s notice. Nor is there any reliable evidence to link IAPL with CPI (Maoist) as its frontal organisation. Prima facie this Court does not think that Section 20 can be made applicable against the appellants at this stage of the proceeding, on the basis of available materials. [Paras 30 and 31][906-C, F-H; 907-A-B]

Dr. Anand Teltumbde v. National Investigation Agency and Another 2022 SCC OnLine Bom 5174 – approved.

1.5 “Terrorist act” as defined under Section 2(k) of the 1967 Act carries the meaning assigned to it in Section 15. This Section also stipulates that the expressions “terrorism” and “terrorist” shall be construed accordingly. This implies construction of these two expressions in the same way as has been done in Section 15. “terrorist organisation” has been independently defined in Section 2(m) to mean an organisation listed in the First Schedule or an organisation operating under the same name as an organisation so listed. But so far as the word “terrorist” is concerned, in this Section also, the interpretation thereof would be relatable to the same expression as used in Section 15. It is one of the basic rules of statutory construction that an expression used in different parts of a statute shall ordinarily convey the same meaning – unless contrary intention appears from different parts of the same enactment itself. No such contrary intention can be found in the 1967 Act. Section 38 of the 1967 Act carries the heading or title “offence relating to membership of a terrorist organisation”. A terrorist act would have to be construed having regard to the meaning assigned to it in Section 15 thereof. Interpretation to this provision has been given earlier. “terrorist organisation” [as employed in Section 2(m)], is not a mere nomenclature and this expression would mean an organisation that carries on or indulges in terrorist acts, as defined in said Section 15. The term terrorism, in view of the provisions of Section 2(k) of the said Act, ought to be interpreted in tandem with what is meant by ‘terrorist Act’ in Section 15 thereof. [Paras 32 and 33][907-B-G]

1.6 In this context, to bring the appellants within the fold of Section 38 of the 1967 Act, the prosecution ought to have prima facie establish their association with intention to further the said organisation’s terrorist activities. It is only when such intention to further the terrorist activities is established prima facie, appellants could be brought within the fold of the offence relating to membership of a terrorist organisation. To bring within the scope of Section 38 of the 1967 Act, it would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organisation. But there must be intention to further the activities of such organisation on the part of the person implicated under such provision. But the same line of reasoning in respect of membership of a terrorist organisation under Section 20, ought to apply in respect of an alleged offender implicated in Section 38 of the 1967 Act. There must be evidence of there being intention to be involved in a terrorist act. So far as the appellants are concerned, at this stage there is no such evidence which can be relied on. The Court ought to carefully examine every case, before making an assessment if the Act would apply or not. When the statutes have stringent provisions the duty of the Court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act. Though these judgments were delivered while testing similar rigorous provisions under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the same principle would apply in respect of the 1967 Act as well. [Paras 34 and 35][907-G-H; 908-A-F]

1.7 In the case of Zahoor Ahmad Shah Watali, it has been held that 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 chargesheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In this Court’s opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth. In the case of the appellants, contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused are in the nature of ideological propagation and allegations of recruitment. No evidence of any of the persons who are alleged to have been recruited or have joined this “struggle” inspired by the appellants has been brought before us. Thus, NIA’s contention that the appellants have committed the offence relating to support given to a terrorist organisation is not accepted. The second set of materials include the witness statements. There also no covert or overt act of terrorism has been attributed to the appellants by the three witnesses. Mere possession of the literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of the 1967 Act. [Paras 36 and 37][908-F-H; 909-A-D]

National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1 : [2019] 5 SCR 1060 – referred to.

1.8 Sections 38 and 39 of the 1967 Act have already been analysed. The interpretation given to the phrase “intention to further activities” of terrorist organisation could also apply in the same way in relation to Section 39 of the same statute. There has been no credible evidence against the appellants of commission of any terrorist act or enter into conspiracy to do so to invoke the provisions of Section 43D (5) of the 1967 Act. As far as raising funds for a terrorist organisation is concerned, at this stage, in absence of better evidence, the account statement is not credible enough to justify invoking the bail-restricting clause by attracting Section 40 of the 1967 Act. [Paras 38 and 39][909-E-F]

1.9 These findings are being returned as the restrictions on the Court while examining the question of bail under the 1967 Act is less stringent in comparison to the provisions of Section

37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. This Court is not called upon, for granting a bail to an accused with commercial quantity of contraband article under the 1985 Act, to satisfy ourselves that there are reasonable grounds for believing that an accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Here, this Court has to satisfy ourselves that the specified offences alleged to have been committed by the appellants cannot be held to be prima facie true. [Para 40][909-G-H; 910-A]

1.10 In these two proceedings, the appellants have not crossed, as undertrials, a substantial term of the sentence that may have been ultimately imposed against them if the prosecution could establish the charges against them. But the fundamental proposition of law laid down in K.A. Najeeb, that a bail restricting clause cannot denude the jurisdiction of a Constitutional Court in testing if continued detention in a given case would breach the concept of liberty enshrined in Article 21 of the Constitution of India, would apply in a case where such a bail-restricting clause is being invoked on the basis of materials with prima facie lowprobative value or quality. Juxtaposing the appellants’ case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering the fact that almost five years have lapsed since they were taken into custody, the appellants have made out a case for granting bail. Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them. While dealing with the offences under Chapters IV and VI of the 1967 Act, the materials available at this stage cannot justify continued detention of the appellants, pending final outcome of the case under the others provisions of the 1860 Code and the 1967 Act. [Paras 42 and 43][910-C-E, GH; 911-A-B] Union of India v. K.A. Najeeb (2021) 3 SCC 713; Angela Harish Sontakke v. State of Maharashtra (2021)

3 SCC 723 – relied on.

Jayendra Saraswathi Swamigal v. State of Tamil Nadu (2005) 2 SCC 13 : [2005] 1 SCR 160; State v. Jagjit Singh AIR 1962 SC 253 : [1962] SCR 622; Gurucharan Singh v. State of (UT of Delhi) (1978) 1 SCC 118 : [1978] 2 SCR 358 – referred to.

1.11 The impugned judgments are set aside. The appellants be released on bail in respect of the cases(s) out of which the present appeals arise, on such terms and conditions the Special Court may consider fit and proper, if the appellants or any one of them are not wanted in respect of any other case. The conditions to be imposed by the Special Court, enumerated. [Paras 45][911C-D] Romila Thapar and Ors. v. Union of India and Ors. Writ Petition (Criminal) No. 260/2018; Thwaha Fasal v. Union of India 2021 SCC OnLine SC 1000; Sagar Tatyaram Gorkhe and Another v. State of Maharashtra (2021) 3 SCC 725; Arup Bhuyan v. State of Assam and Another 2023 SCC OnLine SC 338; Hitendra Vishnu Thakur and Others v. State of Maharashtra and Others (1994) 4 SCC 602 : [1994] 1 Suppl. SCR 360; Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijjaya and Others (1990) 4 SCC 76 : [1990]

3 SCR 633; Usmanbhai Dawoodbhai Memon and

Others v. State of Gujarat (1988) 2 SCC 271 : [1988] 3 SCR 225 – referred to.