Judgment 1. The petitioners in these two petitions who are A.23, A.24 and A.21 respectively are accused of offences punishable under Sections 489-B, 489-C, 120-B IPC and Sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967 (in short, the Act). A.23 and A.24 are in custody since 27.03.2012. A.21 is in custody dated 24.05.2012 in this crime, on which date he was brought on prison transit warrant (PT Warrant) from District Jail, Moradabad, Uttar Pradesh State and produced before the lower Court. After investigation, the police filed charge sheet against A.23 and A.24 on 31.08.2012. Investigation of the case against A.21 is pending. 2. Previously, the lower Court granted bail to A.14. As against the said bail order, the State filed Criminal Appeal No.966 of 2012 in this Court and Division Bench of this Court by order dated 26.09.2012 in Criminal Appeal Miscellaneous Petition No.2120 of 2012 granted interim suspension of the said bail order. 3. Previously this Court by order dated 07.09.2012 granted bail to A.12 in Crl.P.No.6562 of 2012. As against the said order, the State filed petition for Special Leave to Appeal (Crl) No.7375 of 2012 in the Supreme Court of India and by order dated 19.09.2012 the Supreme Court stayed the said bail order till 24.09.2012 and thereafter by another order dated 24.09.2012 extended the stay while ordering notices to A.12. 4. It is contended by the Special Public Prosecutor that in view of Section 21 of the Act and decision dated 23.12.2010 in Crl.A.No.2228 of 2010 of the Kerala High Court in Yoonus v Deputy Superintendent of Police, this bail application should be heard by Division Bench of two Judges of this Court. The said contention of the Special Public Prosecutor is contrary to the provision of law and citation relied upon by him, both of which State that a Criminal Appeal filed under Section 21 of the Act including an appeal filed against bail order passed by the Special Court shall be heard by a Bench of two Judges of the High Court. This bail application is not an appeal against any order passed by the Special Court. This bail application is not an appeal against any order passed by the Special Court. These are independent applications filed by the respective petitioners invoking Section 439 Cr.P.C. There is no provision in the Act which prescribes that a bail application filed under Section 439 Cr.P.C. before the High Court shall be heard by a Bench of two Judges of this Court. Though Section 21(4) of the Act provides for filing an appeal against an order of the Special Court ‘granting or refusing’ bail, the said provision contains non-abstente clause making it an exception to Sub-Section (3) of 378 Cr.P.C. and not making it an exception to Section 439 Cr.P.C. Non-abstente clause in Section 21(3) of the Act is limited to Section 378(3) Cr.P.C. only and does not extend to Section 439 Cr.P.C. also. Sub-Section (4) of Section 43D of the Act reads: “Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed in offence punishable under this Act”. 5. Though provision relating to anticipatory bail under Section 438 Cr.P.C. is taken out of the purview of an offence under the Act, there is no similar provision in relation to Section 439 Cr.P.C. Therefore, jurisdiction of this Court under Section 439 Cr.P.C. is retained in the case of offences under the Act. Modified application of Section 439 Cr.P.C. in relation to the offences under the Act is enacted under Sub-Sections (5), (6) and (7) of Section 43D of the Act to the following effect. “(5) Notwithstanding anything contained in the Code, no person accused to an offence punishable under Chapter 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 opinion that there are reasonable ground for believing that the accusation against such person is prima facie true. (6) The restrictions on granting of bail specified in Sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail. (6) The restrictions on granting of bail specified in Sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail. (7) Notwithstanding anything contained in sub-section (5) and (6), no bail shall be granted to person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstance and for reasons to be recorded in writing.” 6. In view of the above provisions, it is beyond any controversy that power of this Court under Section 439 Cr.P.C. is retained even in cases relating to offences under the Act, but with the above modified application. As per convention of this Court, an application for bail under Section 439 Cr.P.C. has to be heard by a Single Judge and not by Division Bench consisting of two Judges of this Court, however grave the offence or offences may be and irrespective of the enactment applicable thereto. 7. Before going to merits of this bail application, I prefer to point out that this Court had no proper assistance from the Special Public Prosecutor who addressed arguments very superficially. Proviso to Sub-Section (5) of Section 43-D requires this Court a perusal of case dairy or the report made under Section 173 Cr.P.C. before coming to any conclusion on these bail applications. Except harping upon refusal to grant permission for filing of objections to these bail applications, the Special Public Prosecutor failed to produce copy of the case dairy in this crime inspite of this Court’s oral direction to produce thereof for perusal. On the last day of arguments in these applications , the Special Public Prosecutor furnished material papers containing copies of F.I.R., remand case dairy of A.25 to A.27, confession statement of A.25 and seizure panchnamas relating to A.25 and A.27 only apart from charge sheet/final report No.2 filed insofar as A.23 to A.27 are concerned. No copies of alleged confession statements of A.23 and A.24 who are petitioners herein are furnished muchless seizure panchnamas relating to the said accused. The Special Public Prosecutor did not furnish any case dairy relating to A.21 who is one of the petitioner herein and against whom no final report/charge sheet is filed. No copies of alleged confession statements of A.23 and A.24 who are petitioners herein are furnished muchless seizure panchnamas relating to the said accused. The Special Public Prosecutor did not furnish any case dairy relating to A.21 who is one of the petitioner herein and against whom no final report/charge sheet is filed. Inspite of this handicap for the Court, this Court is disposing of these bail applications on merits on the basis of record made available to this Court. 8. F.I.R. in this crime was registered by National Investigation Agency (NIA), Field Office at Hyderabad on the directions of Ministry of Home Affairs, Government of India against A.1 and A.2 and investigation was taken up on smuggling of Fake Indian Currency Notes (FICN) to India after they are “said to have been” printed in Pakistan and pumped through the borders of West Bengal, Nepal, Jammu and Kashmir and Dubai by Pakistani Agents with the help and connivance of Indian accused who are residents of Indian Border areas particularly in Malda District of West Bengal. Though the place of offence falls under the limits of National Investigation Agency, Field Office, Hyderabad, it is not stated as to how the case falls under the jurisdiction of the Special Court at Hyderabad. Simply because National Investigation Agency, Field Office, Hyderabad is located within the jurisdiction of the Special Court at Hyderabad, it will not clothe the Special Court at Hyderabad with jurisdiction to entertain the case in the absence of proof of any cause of action or transaction arising within the State of Andhra Pradesh. 9. Be that as it may, there is no investigation made in this case beyond the territorial limits of India. As the matter now stands, origin of printing of FICN at Pakistan and routing the same across Indian borders through Dubai, Nepal and Bangladesh is yet to be tracked. Except the alleged confession statement of A.25 Masood Akthar Ansari @ Nayeem, there is no other material placed by the Investigating Agency before the Court. The alleged confession statement of A.25 made to a Police Officer, is forbidden by Sections 25 and 26 of the Indian Evidence Act, except to the limited extent of discoveries or recoveries made in pursuance of it as per Section 27 of the Indian Evidence Act. The alleged confession statement of A.25 made to a Police Officer, is forbidden by Sections 25 and 26 of the Indian Evidence Act, except to the limited extent of discoveries or recoveries made in pursuance of it as per Section 27 of the Indian Evidence Act. Though it is stated by the Special Public Prosecutor that National Investigation Agency is empowered to collect information through interception of communications, it is not shown as to what communications between what persons were intercepted by the Agency. Insofar as the petitioners herein who are A.21, A.23 and A.24 are concerned, no communications relating to them were intercepted by the agency nor the agency listed any such communication nor cited any witness to prove such communication, as per list of witnesses and documents appended to second charge sheet/final report No.2 filed against A.23 to A.27. Even though para 6.7 of the said second charge sheet states that charge sheet (final report No.1) was filed in respect of A.1 to A.6 and A.8 to A.14 on 30.06.2012 in the Special Court, no copy of such charge sheet/final report No.1 is furnished by the Special Public Prosecutor for perusal in these bail applications. When this Court questioned the Special Public Prosecutor as to why all the material investigation record was withheld from production in this Court, the Special Public Prosecutor stated that due to dearth of funds to National Investigation Agency, he is not able to furnish copies of all the case dairy and investigation record before this Court. This answer furnished by the Special Public Prosecutor is most evasive, as National Investigation Agency works under the direct supervision of Ministry of Home Affairs (MHA), Government of India, New Delhi which has abundant allocation of budget by the Parliament. 10. Insofar as A.21 is concerned, no charge sheet/final report under Section 173 Cr.P.C. is filed disclosing his complicity in this crime. He was not arrested by NIA in this crime. He was brought on prison transit warrant from District Jail, Moradabad of Uttar Pradesh State and was produced before the Special Court on 24.05.2012. A.21 was detained in District Jail for his alleged involvement in Cr.No.209 of 2011 of Bhojpur Police Station for the offences punishable under Sections 489-B and 489-C IPC. He was brought on prison transit warrant from District Jail, Moradabad of Uttar Pradesh State and was produced before the Special Court on 24.05.2012. A.21 was detained in District Jail for his alleged involvement in Cr.No.209 of 2011 of Bhojpur Police Station for the offences punishable under Sections 489-B and 489-C IPC. It is alleged that A.21 is one of the important members of the gang which is having countrywide net work and circulating FICN across India. It is further alleged that after circulation of counterfeit currency notes, the accused were collecting genuine notes and sending the same to Pakistan via Bangladesh for using the same for committing terrorist activities in India and to destabilise the nation at the behest of country. No evidence is collected by NIA to prove that genuine currency notes collected by the accused or the petitioners herein were sending the same to Pakistan for using the same for any Jihad activities. It is contended by the Special Public Prosecutor that the Special Court granted extension of 90 days period of remand during investigation to 180 days in view of Section 43D (2)(b) of the Act. No copy of such order of the Special Court is filed before this Court. In any event, such extension of remand by the Special Court will not debar the Courts’ power under Section 439 Cr.P.C. to consider application of A.21 for grant of bail. No documents are placed before this Court relating to any material collected by NIA after remand of A.21 in this case by the Special Court at Hyderabad, and details of custodial interrogation if any of A.21 after his arrest, are furnished. No seizure of any incriminating material muchless FICN from possession of A.21, is made by NIA in this crime. Assuming for the sake of argument that any of the co-accused made any exculpatory confession statement engulfing A.21 also in this case, such confession statement made to a police Officer cannot be proved against either maker of the same or against A.21. Assuming for the sake of argument that there is any confession recorded by any Magistrate from any other accused under Section 164 Cr.P.C., such confession insofar as A.21 is concerned, cannot have any legal value against A.21 in the absence of independent material corroborating material aspects of that confession statement. Assuming for the sake of argument that there is any confession recorded by any Magistrate from any other accused under Section 164 Cr.P.C., such confession insofar as A.21 is concerned, cannot have any legal value against A.21 in the absence of independent material corroborating material aspects of that confession statement. Therefore, I have no hesitation to find in this bail application of A.21 in terms of proviso to Section 43D (5) of the Act that on perusal of the material placed by the prosecuting agency before this Court, this Court is of the opinion that there are no reasonable grounds in law for believing that the accusation against A.21 is prima facie true. 11. Insofar as A.23 and A.24 are concerned, charge sheet/final report-2 under Section 173 Cr.P.C. is filed by NIA against them in the Special Court. It is alleged that A.25 sent a parcel containing FICN of the vaue of Rs.9,85,000/-from Bengaluru to A.24 of Delhi by booking on 20.03.2012 at Patel Parcel Movers, Bengaluru. No evidence is collected by NIA as to the source of the said FICN of the value of Rs.9,85,000/-before reaching A.25 at Bengaluru. NIA in this case traced FICN only from Bengaluru onwards and not its previous origin upto Bengaluru. Contrary to the above contents in para 18.3 of charge sheet, it is noted by the Investigating Officer in para 18.2 of the charge sheet that on 27.03.2012 A.24 along with A.23 took delivery of the parcel containing FICN of the face value of Rs.9,85,000/-from Patel Rail Cargo, New Delhi by signing on the delivery receipt. When the consignment is destined to A.24 only, the question of both A.24 as well as A.23 signing the delivery receipt will not arise and this prosecution allegation creates a doubt whether the consignment was taken delivery by A.23 or whether the consignment was taken delivery by A.24. The charge sheet further reads that FICN of the face value of Rs.9,85,000/-was seized from possession of A.24 on 27.03.2012 apart from scanned copy of receipt dated 20.03.2012 issued by Patel Parcel Movers, Bengaluru and delivery receipt dated 27.03.2012 of Patel Rail Cargo, New Delhi. On the delivery receipt, signature of A.24 in Hindi is found. When FICN of the face value of Rs.9,85,000/-was seized from possession of A.24, again seizing the same currency from joint possession of A.23 and A.24 will not arise. On the delivery receipt, signature of A.24 in Hindi is found. When FICN of the face value of Rs.9,85,000/-was seized from possession of A.24, again seizing the same currency from joint possession of A.23 and A.24 will not arise. Apart from the said consignment, it is alleged that one fake currency note of Rs.1,000/-each was seized from possession of A.23 as well as A.24. Except one fake currency note of Rs.1,000/-, no other FICN or any other incriminating material was seized from possession of A.23. In the light of the above evidence collected by NIA resulting in filing of charge sheet, this Court is of the opinion under proviso to Section 43D (5) of the Act that there are reasonable grounds for believing that the accusation against A.24 is prima facie true and that there are no reasonable grounds for believing that the accusation against A.23 is prima facie true. 12. In the light of the above discussion of the material and legal position, this Court is of the opinion that A.21 and A.23 are entitled for bail and that A.24 is not entitled for bail during trial. 13. Criminal Petition No.7136 of 2012: In the result, the petitioner/A.21 shall be released on bail on furnishing personal bond for Rs.25,000/-(Rupees twenty five thousand only) together with two sureties for the likesum each to the satisfaction of the Special Judge for NIA Cases-cum-IV Additional Metropolitan Sessions Judge, Hyderabad. 14. Criminal Petition No.7117 of 2012: In the result, the petition is partly dismissed insofar as the 2nd petitioner/A.24 is concerned.15. The 1stpetitioner/A.23 shall be released on bail on furnishing personal bond for Rs.25,000/-(Rupees twenty five thousand only) together with two sureties for the likesum each to the satisfaction of the Special Judge for NIA Cases-cum-IV Additional Metropolitan Sessions Judge, Hyderabad.