S. Chandrashekhar, J.

1. This criminal appeal has been preferred by Ajay Kumar @ Ajay Singh under section 21 of the National Investigation Agency Act, 2008, challenging the order dated 27th June 2020 passed in Misc. Cr. Application No. 330 of 2020.

2. The aforesaid Misc. Cr. Application was filed by the appellant seeking bail in connection to R.C. Case No. 06/2018/NIA/DLI registered on 16th February 2018 which was renumbered as Special (NIA) Case No. 03 of 2018.

3. The appellant was made accused in 2nd supplementary charge-sheet filed in Special (NIA) Case No. 03 of 2018 in which cognizance of the offence under section 384 read with section 120-B of the Indian Penal Code, sections 17 and 18 of Unlawful Activities (Prevention) Act, 1967 (in short, UAPA) and section 17 of the CLA Act has been taken.

4. This criminal appeal was filed on 05th September 2020 and taken up for hearing on 1st October 2020. On that day, hearing of this criminal appeal was postponed on request of the learned counsel for the NIA for filing counter-affidavit in the matter. A request seeking four weeks' further time for filing counter-affidavit was made again on 7th January 2021 and 23rd February 2021. It appears that on 14th July 2021 one of the Hon'ble Judges hearing this criminal appeal expressed his inability to hear the matter and, accordingly, the case records were placed before Hon'ble the Chief Justice for fresh assignment. This criminal appeal has been assigned to DB-III by virtue of the order dated 28th October 2021 passed by Hon'ble the Chief Justice on the administrative side and this matter was listed before us for the first time on 24th January 2022.

5. The appellant is in custody since 10th January 2020.

6. From the materials on record, we gather that the history of the present case starts with registration of Tandwa PS Case No. 2 of 2016 on 11th January 2016 against Binod Kumar Ganjhu, Munesh Ganjhu, Pradeep Ram, Birbal Ganjhu, Gopal Singh Bhokta @ Brijesh Ganjhu, Mukesh Ganjhu @ Muneshwar Ganjhu, Koharam Ji, Akraman Ji @ Ravinder Ganjhu, Anishchay Ganjhu, Deepu Singh @ Bhikhan, Bindu Ganjhu @ Bindeshwar Ganjhu and Bhikhan Ganjhu who on the basis of a raid conducted in the intervening night of 10/11th January 2016 at the house of Binod Kumar Ganjhu were made accused on the allegation of running an extortion racket by them. In course of the search several incriminating articles including huge cash were recovered from an almirah in the house of Binod Kumar Ganjhu who suffered a disclosure statement that he was collecting extortion money for TPC supremo Gopal Singh Bhokta @ Brijesh Ganjhu and other persons. Birbal Ganjhu and Munesh Ganjhu who were also present in the house of Binod Kumar Ganjhu at the time of raid made their confessional statements about their proximity with TPC. On the basis of the disclosures made by these persons a search was conducted at the premises of Pradeep Ram and from there also several incriminating articles and huge cash were recovered.

7. Accordingly, Tandwa PS Case No. 2 of 2016 was registered under sections 414/384/386/387 and 120-B of the Indian Penal Code; sections 25(1-b) (a), 26/35 of the Arms Act; section 17(1)(2) of the CLA Act and a charge-sheet was submitted on 10th March 2016. It appears that subsequently the offence under section 16, 17, 20 and 23 of UAPA were added in the report on 12th April 2017. NIA took up investigation of the case and the aforesaid First Information Report was re-registered as Special (NIA) Case No. 03 of 2018 and recommended prosecution of 16 persons for which an order was issued on 19th December 2018 by the Ministry of Home Affairs, Government of India.

8. 1st supplementary charge-sheet was submitted by NIA on 21st December 2018 against 16 persons including five of the accused who were named in Tandwa PS Case No. 2 of 2016. At this stage it would be relevant to indicate that co-accused Sanjay Jain was sent-up for trial in 1st supplementary charge-sheet submitted by NIA.

9. 2nd supplementary charge-sheet was submitted by NIA on 10th January 2020 in which the present appellant and Mahesh Agarwal along with 3 others were made accused - one of the accused was Sudesh Kedia.

10. After Criminal Appeal (DB) No. 187 of 2020 filed by Sudesh Kedia was dismissed by a co-ordinate Bench of this Court, he approached the Hon'ble Supreme Court in SLP (Crl.) Nos. 6259-6260 of 2020 and the said petition was allowed by the Hon'ble Supreme Court by an order dated 09th April 2021.

11. In the aforesaid factual background, the appellant has raised the following plea: (i) the allegations against him do not constitute any offence much less under sections 17 and 18 of UAPA (ii) payment of money to TPC operatives under fear would not make the appellant a conspirator and his acts would not amount to aiding, abetting or funding a terrorist organisation (iii) the bar under section 43-D of UAPA is not attracted, and (iv) there is no reasonable probability of concluding the trial in near future.

12. We may indicate that by an order dated 1st December 2021 passed in Criminal Appeal (DB) No. 222 of 2019 co-accused Sanjay Jain who was also employed with Adhunik Power and Natural Resources Limited (hereinafter referred to APNRL) along with the present appellant has been granted bail by this Court. We have been informed that by an order dated 11th April 2022 passed in Criminal Appeal (DB) No. 175 of 2022 co-accused Mahesh Agarwal who is one of the Directors of APNRL has also been granted bail by a co-ordinate Bench of this Court. We are recording the aforesaid facts for the reason that there is a specific allegation against the appellant, Sanjay Jain and Mahesh Agarwal of hatching a criminal conspiracy.

13. The learned counsel for the appellant would therefore lay stress on the aforesaid orders to persuade the Court to take a similar view in the matter. Plainly speaking, a plea of parity has been raised on behalf of the appellant insofar as the issue of grant of bail to the appellant in connection to Special (NIA) Case No. 03 of 2018 is concerned.

14. On the other hand, Mr. Amit Kumar Das, the learned counsel for NIA would contend that the trial has commenced and it would be premature to express any opinion on complicity or otherwise of the appellant in the crime. It is further submitted that a plea of parity raised by co-accused must always be examined in the context of the role played by the said person and merely because one accused has been granted bail all others cannot claim that they also must be accorded similar treatment by the Court.

15. On the factual aspect, we find that the written submissions filed on behalf of NIA deal with allegations against the appellant in some detail. It is stated that (i) the appellant made payment through RTGS to coal transporters on the direction of Sanjay Jain (ii) received cash @ Rs. 200/- per MT in return to the amount already paid through RTGS for the purpose of payment to TPC operatives (iii) the act of paying levy to Akraman Ji for smooth functioning of the business of APNRL was in essence as act raising terrorist fund for TPC, and (iv) the appellant along with Sanjay Jain and Mahesh Agarwal acted as conduit between TPC and coal transporters and facilitated extortion of levy and raising funds for the terrorist gang.

16. The aforesaid allegations against the appellant are based on the statement of the witnesses recorded under section 161 Cr.PC - statements of protected witnesses were recorded also under section 164 Cr.PC. NIA is relying on the statements given by PW 16 who is protected witness 'D', PW 22, PW 26, PW 44 who is protected witness 'B', PW 63, PW 65, PW 66 and PW 104 to oppose the present criminal appeal filed by the appellant seeking bail.

17. The protected witness 'D' is a transporter who stated before the investigating officer that when an indefinite strike was called by the Truckers' Association a meeting was called by Akraman Ji in which the appellant also participated as representative of APNRL. In the said meeting a deal was stuck on assurance of increasing payment and the strike was called off. The protected witness 'B' is also a transporter who was engaged by APNRL. This witness has stated that he was pressurized to return back Rs. 200/- per MT and the said amount was collected by Sanjay Jain and Ajay Singh (the present appellant). PW 65 is also a transporter who has stated that the meetings called by TPC were attended by the appellant in which a decision was taken that Rs. 40/- per MT would be paid by all contractors. According to this witness, this amount was collected by Sanjay Jain and Ajay Singh to be paid to Akraman Ji. He has made a specific allegation against the appellant of collecting Rs. 2 lakhs from him. According to him, the appellant further informed him that he was required to pay Rs. 21 lakhs to the CCL officials.

18. PW 22 who is an employee of another Company stated before the investigating officer that Sanjay Jain and Ajay Singh used to pay money on behalf of APNRL and PW 26 has stated that Ajay Singh used to pay money to CCL officials. PW 63 did not provide any useful information except that he was awarded handling of coal by APNRL and when outstanding dues were not paid to him he stopped working for APNRL. PW 66 and PW 104 would give some details about operations of TPC in the area and say that money was paid to TPC and CCL officials and Sanjay Jain and Ajay Singh would attend the meeting at Herum forest near Lawalong and paid money directly to Akraman Ji in the forest.

19. Besides the above, NIA seeks to rely on the explanation memorandum vide D-179 in connection to D-170 which disclosed transactions through various accounts.

20. Mr. Amit Kumar Das, the learned counsel for NIA would submit that the aforesaid acts of the appellant would constitute offence under section 17 and 18 of UAPA, and that he actively participated in prosecution of criminal conspiracy hatched with TPC supremo and other operatives stands established.

21. 1st supplementary charge-sheet filed by NIA gives a brief narration of the activities of TPC which is a breakaway faction of CPI (Maoist). 1st supplementary charge-sheet records that TPC was active in several districts including Latehar, Chatra and Palamau and running a racket of extortion collecting money from the contractors and the Companies which were involved in development projects in the area. It appears that when the work at Amrapali Coal Mines was stalled a meeting between CCL, TPC and M/s. BGR was called at village-Humbi by Akraman Ji, Anishchay Ji and Bhagat Ji and it was decided to collect money from contractors, transporters and the Companies to make payment to various groups. 1st supplementary charge-sheet submitted by NIA records that money was to be paid to as many as 13 persons/group of persons.

22. At the relevant time, the appellant was working as Manager with APNRL. The defence put forth by him is that on behalf of the Company which was put under threat by TPC he attended the meetings called by Akraman Ji and paid money to him on behalf of the Company. The plea raised by him is that his participation in the meetings and payment to Akraman Ji were not voluntary acts rather under threat, coercion and fear.

23. In "Sudesh Kedia v. Union of India" (2021) 4 SCC 704, [LQ/SC/2021/1529 ;] the Hon'ble Supreme Court held that payment of extortion money does not amount to terror funding and meeting with the members of terror organisation may not establish conspiracy with the organisation.

24. In "Sudesh Kedia", the Hon'ble Supreme Court has held as under:

"13. While considering the grant of bail under Section 43-D(5), it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. We have gone through the material on record and are satisfied that the appellant is entitled for bail and that the Special Court and the High Court erred in not granting bail to the appellant for the following reasons:

13.1. A close scrutiny of the material placed before the Court would clearly show that the main accusation against the appellant is that he paid levy/extortion amount to the terrorist organisation. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organisation have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The appellant is carrying on transport business in the area of operation of the organisation. It is alleged in the second supplementary charge-sheet that the appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the appellant conspired with the other members of the TPC and raised funds to promote the organisation.

13.2 Another factor taken into account by the Special Court and the High Court relates to the allegation of the appellant meeting the members of the terror organisation. It has been held by the High Court that the appellant has been in constant touch with the other accused. The appellant has revealed in his statement recorded under Section 164 CrPC that he was summoned to meet A-14 and the other members of the organisation in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the appellant met the members of the organisation.

13.3. An amount of Rs. 9,95,000 (Rupees nine lakh and ninety five thousand only) was seized from the house of the appellant which was accounted for by the appellant who stated that the amount was withdrawn from the bank to pay salaries to his employees and other expenses. We do not agree with the prosecution that the amount is terror fund. At this stage, it cannot be said that the amount seized from the appellant is proceeds from terrorist activity. There is no allegation that the appellant was receiving any money. On the other hand, the appellant is accused of providing money to the members of TPC.

14. After a detailed examination of the contentions of the parties and scrutiny of the material on record, we are not satisfied that a prima facie case has been made out against the appellant relating to the offences alleged against him. We make it clear that these findings are restricted only for the purpose of grant of bail to the appellant and the trial court shall not be influenced by these observations during trial."

25. Section 17 of UAPA says that whoever provides funds or collects funds, whether from a legitimate or illegitimate source knowing that such funds are likely to be used by such person or persons or by a terrorist organisation or by a terrorist gang or by an individual terrorist who commits terrorist act, commits the offence under section 17 which is punishable with imprisonment for a term which shall not be less than 5 years though which may extend to imprisonment for life, and shall also be liable to fine.

26. We are informed that NIA has examined 5 witnesses in the trial, however, none of the witnesses has spoken anything against the appellant. We would be cautious to make any observation on the merits of the statements made by the witnesses on whom NIA seeks to rely upon. However, we are of prima facie opinion that the offending acts on the part of the appellant in meeting TPC operatives and making payment to Akraman Ji do not attract the offence under section 17 of UAPA. Similarly, the offence under section 18 also would not be attracted against the appellant merely because he was attending meetings called by TPC. The charge against the appellant that he along with Sanjay Jain and Mahesh Agarwal became conduit between TPC and coal transporter and raised levy on behalf of TPC would primarily depend on the evidence tendered by the witnesses during the trial. But, at this stage, it would be a far-fetched inference drawn on the basis of the statement of the witnesses which we have already taken note of in the preceding paragraphs.

27. The learned counsel for the appellant referred to the judgments in "Union of India v. K.A. Najeeb" (2021) 3 SCC 713, [LQ/SC/2021/58 ;] "NIA v. Zahoor Ahmad Shah Watali" (2019) 5 SCC 1 [LQ/SC/2019/607] and "Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence" (2018) 8 SCC 271 [LQ/SC/2018/923] which support our prima facie opinion regarding complicity of the appellant in the crime for the purpose of bail.

28. In "Zahoor Ahmad Shah Watali", the Hon'ble Supreme Court has discussed the parameter for applying sub-section (5) to section 43-D, thus;

"23. By virtue of the proviso to sub-section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and Mcoca. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to the offences under the 1967 Act as well. Notably, under the special enactments such as TADA, Mcoca and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused is "not guilty" of the alleged offence. There is a degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused is "not guilty" of such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person is "prima facie" true. By its very nature, 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 first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation is "prima facie true", as compared to the opinion of the accused "not guilty" of such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act."

29. A co-ordinate Bench of this Court while granting bail to Mahesh Agarwal in Criminal Appeal (DB) No. 175 of 2022 has recorded its satisfaction that there appear to be reasonable grounds for believing that the accusations are prima facie not true. We are also of the opinion that on the basis of the materials which NIA seeks to rely against the appellant the bar under sub-section 5 to section 43-D of UAPA for releasing the appellant on bail is not attracted.

30. There is another reason why we are inclined to grant bail to the appellant. The trial seems to be a never ending trial because NIA seeks to examine 185 witnesses and relies upon 131 documents as well as 66 material exhibits to prove the charge against the accused persons.

31. Mr. Amit Kumar Das, the learned counsel for NIA on instructions from the investigating officer who is present in the Court has informed the Court that against this appellant too many witnesses may not be required to be examined.

32. We are of the opinion that the liberty guaranteed to the appellant under Article 21 of the Constitution of India needs to be adjusted in view of his long incarceration, maximum punishment for the charged offence and remote possibility of the trial being completed in near future.

33. For the aforesaid reasons, we find serious error in the approach of the learned Judicial Commissioner-cum-Special Judge, NIA at Ranchi in rejecting the bail application moved by the appellant. The learned Judicial Commissioner-cum-Special Judge, NIA at Ranchi failed to take note of the aforesaid circumstances in the case and dismissed Misc. Cr. Application No. 330 of 2020 on an erroneous assumption that there is every likelihood of the appellant tampering with the evidence and wining over the witnesses as charge was yet to be framed.

34. Accordingly, the order dated 27th June 2020 passed in Misc. Cr. Application No. 330 of 2020 is set-aside and, consequently, Misc. Cr. Application No. 330 of 2020 is restored to its file.

35. Criminal Appeal (DB) No. 535 of 2020 is allowed. The appellant shall be released on bail on conditions to be indicated by the learned Judicial Commissioner-cum-Special Judge, NIA at Ranchi.

36. Misc. Cr. Application No. 330 of 2020 shall be listed before the Special Judge, NIA on 17th June 2022 for the said purpose.

37. Let a copy of the order be communicated through 'FAX' to the Court concerned and the concerned Jail Superintendent.