Research › Search › Judgment

Gauhati High Court · body

2011 DIGILAW 570 (GAU)

M. Londhoni Devi v. National Investigation Agency

2011-07-01

H.BARUAH, MADAN B.LOKUR

body2011
JUDGMENT Madan B. Lokur, CJ 1. The appellant has preferred this appeal against an order dated 01.04.2011 passed by the Special Judge, NLA, Assam, Guwahati in Misc Bail Application No. 17/2011 declining bail to the appellant. In our opinion, bail ought to have been granted to the appellant. 2. The appellant has been in custody since 18.08.2010 and is accused of offences 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 sheet has been filed on 14.02.2011 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 organization, UNLF had remained associated with every act of commission and omission of UNLF carried out inside and outside India. The accused as a member of UNLF in pursuance of the conspiracy as investigated had coordinated and organized activities of UNLF. In furtherance of such conspiracy, Mrs. Londhoni Devi (A-14) had used different mobile phones in assumed names and identities. UNLF, upon her arrest had made desperate attempts to bail her out so as to continue the ongoing conspiracy of waging war 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 evidence, or even suggestion, has been pointed out to us that the appellant is a conspirator in waging war against India. 6. 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 evidence, or even suggestion, has been pointed out to us that the appellant is a conspirator in waging war against India. 6. The substantive allegations made against the appellant suggest: (i) That she is an active member of a terrorist organization called the United National 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 coordinated and organized activities of the UNLF; (iv) That she had used different mobile phones in assumed names and identities; (v) That she was ought 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 her. 8. During the course of submissions before us, learned counsel for the appellant referred to the statements made by two witnesses who are the only persons to have been mentioned the appellant. 9. To appreciate the allegations, it is necessary to rephrase the statements of these two witnesses. The first witness is PW 6, that is, Panidhar Das. This witness is the landlord of the appellant's husband in Guwahati. The only tiling that he says in his statement is that Jeeten Singh (husband of the appellant) had confessed before the police that he and the accused are members of a banned organization, that is, UNLF in Manipur. This witness does not say anything more than what we have mentioned above. 10. The second witness is PW 40 that is, Ms. Wangkheimayum Amusana. This witness appears to be an old friend of the appellant. All that she says is that the 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 anything win regard to the role of the appellant in the activities of the UNLF. 11. 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 anything win 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 appellant is waging war against India and that she has violated the provisions of the Unlawful Activities (Prevention) Act, 1967 (for short the Act). 12. At this stage we may mention that the learned Additional Solicitor General 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 statement of Maibam Sarat Singh @ Chaoren @ Naba Kumar recorded during the course of investigations. 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 regard and even he did not give us copies of the statements referred to by the learned Additional Solicitor General. Ironically, learned counsel for the appellant has provided us with copies of the statements. 13. All that Jeeten Singh says in his statement to the Additional Superintendent 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 leaders 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 organized 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 appellant is an active member of the UNLF. She is involved in various activities for strengthening the outfit like fund raising, mobilizing the public and arranging hide outs for its senior leaders and cadres. His statement in this regard is a reproduction of the statement of Jeeten Singh. 14. She is involved in various activities for strengthening the outfit like fund raising, mobilizing the public and arranging hide outs for its senior leaders and cadres. His statement in this regard is a reproduction of the statement of Jeeten Singh. 14. So far as the documentary evidence relied on by the NIA is concerned, what has been pointed out to us are a few documents apparently taken from some computers belonging to members of the UNLF. These print-outs show that some payments were made to the appellant by the UNLF for various reasons, such as, reimbursement of medical bills, house construction loan, travelling allowance etc. From these transactions, it is sought to be contended on behalf of the NIA that the appellant had financial dealings with the UNLF which show that she is an active member of the UNLF. 15. We have considered the submissions made by the learned Additional Solicitor General on behalf of the NIA and find that this is an appropriate case for the 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 the appellant was waging war against India In other words, absolutely no contention whatsoever was raised by the learned Additional Solicitor General to suggest that the appellant had committed any offence under the IPC. The only submissions of the learned Additional Solicitor General were with reference to the provisions 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 terrorist organization. Indeed, the said Act did not deal with terrorism or any terrorist organization. The said Act only dealt with associations carrying out unlawful activities which touched upon the sovereignty and integrity of India, including cession of a part of the territory of India or secession of a part of the territory of India from the Union. 18. There were, of course penal consequences attached to an unlawful association and to its members. At this stage it must be stated that it is not clear whether the UNLF was declared as an unlawful association in 1986 or not, but we are proceeding on the basis that it was so. 18. There were, of course penal consequences attached to an unlawful association and to its members. At this stage it must be stated that it is not clear whether the UNLF was declared as an unlawful association in 1986 or not, but we are proceeding on the basis that it was so. As best, therefore, it can be said that even in 1986 the UNLF was an unlawful association and the appellant was an active 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 stands today and she certainly cannot be punished for those unlawful activities under the statue 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 the appellant has been a terrorist all along is completely misplaced. The only relevance 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 in 2004. By the amendments made in 2004, terrorist organizations were brought within the fold of the Unlawful Activities (Prevention) Act. A terrorist organization was defined to mean an organization listed in the Schedule of the Act or an organization operating in the same name as an organization so listed. The amendment listed the UNLF as a terrorist organization and, therefore, it is only from 2004 onwards that the UNLF can be described as a terrorist organization. The activities of the members of the UNLF prior to 2004 were not the activities of a terrorist organization 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 punishment for terrorist activities. We are really concerned with some of the Sections with which the appellant has been charged, namely, Sections 16, 17, 18 and 20. These Sections (and Section 15 which is equally important) as they stand today (after amendments in 2004 and 2008) read as follows: 15. Terrorist act. We are really concerned with some of the Sections with which the appellant has been charged, namely, Sections 16, 17, 18 and 20. These Sections (and Section 15 which is equally important) as they stand today (after amendments in 2004 and 2008) read as follows: 15. Terrorist act. - Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign county, - (a) by using bombs, dynamite or other explosive substances or inflammable substances 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 cause 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 community 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 defense of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or (b) overawes by means of criminal force or the show of criminal force or attempts 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 State Government or the Government of a foreign country or any other person to do or abstain from doing any act, commits a terrorist act. Explanation.- For the purpose of this section, public functionary means the constitutional authorities and any other functionary notified in the Official Gazette by the Central Government as a public functionary. 16. Explanation.- For the purpose of this section, public functionary means the constitutional 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 death 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 not be less than five years but which may extend to imprisonment for life, and shall also be liable to fine. 17. Punishment for raising funds for terrorist act.- Whoever, in India or in a foreign country, directly or indirectly, raises Or collects funds or provides funds 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 commit a terrorist act, notwithstanding whether such funds were actually used or not for commission of such-act, shall be punishable with imprisonment 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. 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 imprisonment 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 organization- Any person who is member of a terrorist gang or a terrorist organization, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extent 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 above. The admitted position is that no terrorist act has been attributed to the appellant. 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. A terrorist act has been defined under Section 15 of the said Act as above. The admitted position is that no terrorist act has been attributed to the appellant. 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 us 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 funds 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 recipient of funds from the UNLF. Ex facie, therefore, even assuming the computer printouts indicated financial transactions between the UNLF and the appellant, those 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 commission 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 General were directed towards showing that the appellant was liable to punished under Section 20 of the Act which provides for punishment to a member of a terrorist gang or organization 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? 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 involvement in the activities of the terrorist organization or terrorist gang- if the involvement is superficial, minimal sentence may be imposed by the Trial Judge, but if the involvement is overwhelming life imprisonment may be imposed. 26. As far as the appellant is concerned, only PW40 has stated that the appellant was an active member of the UNLF. Additionally, Jeeten Singh and Maibam Sarat Singh @ Chaoren @ Naba Kumar have stated before the Investigating Officer, parrot-like, that the appellant is an active member of the UNLF without specifying anything. The later 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 would be inadequate to sentence the appellant to life imprisonment. 27. Recently, the Supreme Court held in Arup Bhuyan Vs. State of Assam reported in 2011 (3) GLT (SC) 1 (Criminal Appeal No. 889/2007) decided on 03.02.2011 that "mere membership of a banned organization will not make a person a criminal unless he resorts to violence or incites to violence or creates public disorder by violence or incitement to violence". Applying the same rationale to the membership of the appellant to the 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 organization" and a "terrorist organization". He contended that even mere membership of a terrorist organization would attract the penal provisions of Section20 of the Unlawful Activities (Prevention) Act While he may be correct, it cannot be forgotten that Parliament has provided a huge margin in the quantum of punishment for membership of a terrorist organization. If mere membership of a terrorist organization is expected to invite serious penal consequences, the Legislature would not have given such a wide discretion to the Trial Judge in the matter of sentencing. If mere membership of a terrorist organization is expected to invite serious penal consequences, the Legislature would not have given such a wide 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 organization does not, per se, attract severe penalty and that it can even attract the minimal penalty. The learned Additional Solicitor General is not right in arguing for denial of bail to the appellant only because she is a member of a terrorist organization. 29. Assuming for the sake of argument that the appellant is an active member of a terrorist organization, even then the nature of active involvement would depend on the evidence led by the prosecution. On a given set of facts, even an active member may be sentenced to imprisonment only for a short while -every active member need not be sentenced to imprisonment for life. Therefore, merely because an allegation has been made the appellant is an active member of a terrorist organization such as the UNLF would not ipso facto attract the severest penalty under the statute. If we go by the statement of PW 40, it appears to us that 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 bail. 30. The final submission of the learned Additional Solicitor General was that the NIA has only to show that there is a prima facie case against the appellant and if that prima facie case is shown, then bail should automatically be denied to her. The learned Additional Solicitor General relied upon Section 43-D(5) of 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 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. ... 2. ... 3. ... 4. ... 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. 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. 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 paragraph 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 of any of that pro visions 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 who has placed before us the statements sought to be relied upon by the learned Additional Solicitor General. We have perused the statements and have discussed them 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 that the appellant has committed any offence under the provisions of the Unlawful Activities (Prevention) Act. 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 that 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 Section 20 of the said Act, which gives a very wide discretion to the Trial Judge in the 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 Trial 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 will not be appropriate to keep the appellant in custody any further, considering that she has already been in custody since 19.08.2010, 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 about 7 years and 4 years. On the basis of the very thin allegations made against her in the charge sheet filed by the NIA, we do not see any reason to separate the appellant from her family for an indefinite period. 36. For all the above reasons, we are of the opinion that the appellant should be granted bail and the learned Trial Judge was in error in declining bail to the appellant. 37. While granting bail to the appellant in this case, we direct the following: (i) The appellant should make herself available to the NIA whenever required; (ii) If the appellant is in possession of a valid passport she should surrender it to the NIA; (iii) The appellant will not leave Imphal where she resides, without the permissions of the Investigating Officer of the NIA. (iv) The appellant will be released on the production two sureties of an amount of Rs. (iv) The appellant will be released on the production two sureties of an amount of Rs. 50,000/- each to the satisfaction of the learned Trial Judge. (v) The appellant will not make any contact with any of the witnesses or any member of the UNLF during the period she is on bail. 38. The appeal is disposed of on the above terms. 39. The terms of the Unlawful Activities (Prevention) Act compel a somewhat detailed discussion. Therefore, we wish to make it abundantly clear that the observations made by Us are only for the purpose of deciding the bail appeal of the appellant Our observations are not to used by the appellant during the course of the trial or by any other accused for moving any bail application before the learned Trial Judge. Our observations are only confined to this bail appeal and nothing else.