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2012 DIGILAW 1067 (GAU)

Golan Daulagupu v. National Investigation Agency

2012-09-10

A.C.UPADHYAY, I.A.ANSARI

body2012
JUDGMENT I.A. Ansari, J. 1. The appellant, who was a former Executive Member of North-Cachar Hills Autonomous Council (in short, 'NCHAC'), has preferred this appeal under Section 21(4) of the National Investigation Agency Act, 2008, (hereinafter referred to as 'the NIA Act') aggrieved by the order, dated 11.05.1991, passed by the learned Special Judge, NIA, Guwahati, Assam, rejecting the appellant's prayer for bail in Misc. Case No. 204/2011, which was made by the accused-appellant, Golan Daulagupu, under Section 437 Cr. PC, in connection with NIA Case No. 02/2009, under Sections 120B/121/121A IPC read with Sections 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967, and Section 25(1)(d) of the Arms Act, 1951, which arose out of Diyungmukh Police Station Case No. 03/2009 under Sections 120B/121/121A IPC. We have heard Mr. N. Dutta, learned Senior counsel, for the accused-appellant, and Mr. D.K. Das, learned Senior counsel, appearing on behalf of the National Investigation Agency. BACKGROUND FACTS 2. The material facts, giving rise to the present appeal, may, in brief, be set out as under: (i) Some significant amendments had been made in the Unlawful Activities (Prevention) Act, 1967, (in short, 'the UA(P) Act') by the Unlawful Activities (Prevention) Amendment Act, 2008, the amendments having come into force on 31.12.2008, which introduced and defined certain terms, such as, terrorist act, terrorist gang, terrorist organization, unlawful association and unlawful activity and made, inter alia, punishable a 'terrorist act' under Section 16 and, by Section 17, while the UA(P) Act, as amended by the Unlawful Activities (Prevention) Amendment Act, 2008, made raising of fund for terrorist act punishable, the UA(P) Act also provided punishment for conspiracy, act of abetment, etc, for commission of terrorist act or any act preparatory to the commission of terrorist act. This apart, the UA(P) Act made 'membership' of a terrorist gang or terrorist organization punishable offences and also provided punishment for those, who hold or held proceeds of terrorism. The UA(P) Act made, under Section 38, even 'association' by a person with a terrorist organization a punishable offence, if one associates with a terrorist organization with intention to further its activities or if he professes to be associated with a terrorist organization with intention to further its activities. The UA(P) Act made, under Section 38, even 'association' by a person with a terrorist organization a punishable offence, if one associates with a terrorist organization with intention to further its activities or if he professes to be associated with a terrorist organization with intention to further its activities. (ii) The UA(P) Amendment Act, 2008, has also introduced Section 43D and put restrictions, by the proviso to Sub-Section (5) of Section 43D, on the Court's power to grant bail by imposing condition that an accused shall not be released on bail or on his own bond if the Court, on perusal of the case diary, or on the report, made under Section 173 of the Code of Criminal Procedure (in short, 'the Code'), is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true. Thus, the UA(P) Act, 1967, as the same stands today, puts serious fetters on the Court's discretion to allow an accused to go on bail. (iii) Yet another development from the enactment of NIA Act, 2008, which came into force on 31.12.2008, is that the Central Government stands empowered to constitute a special agency to be called National Investigation Agency (in short, NIA) for investigation and prosecution of offences under the acts specified in the Schedule of the NIA Act. Section 11 also empowers the Central Government to constitute Special Courts and, it is out of the order, passed by such a Special Court rejecting bail of the present appellant, that this appeal has been preferred as provided by Section 21(1) of the NIA Act read with Section 21(4) thereof. (iv) Basistha P.S. Case No. 170/2009, under Section 120B/121/121(A) IPC read with Section 25(1B) (A) Arms Act, was, initially, registered against two accused persons, namely, Phojendra Hojai and Babulal Kemprai, on the ground that, on 01.04.2009, at about 4-00 p.m., when vehicle Nos. AS-01-AH-1422 and AS-01-1-0609 were intercepted at 14th Mile G.S. Road, Guwahati, and searched, both the said accused, suspected to be cadres and linkmen of a banned organization, namely, DHD (J), were found in the vehicles, wherefrom a sum of rupees one crore, in cash, and two pistols were recovered, the money being meant for purchase of arms and ammunitions for the said banned organization. The accused were accordingly taken into custody and investigation was started by the Assam Police. The accused were accordingly taken into custody and investigation was started by the Assam Police. On being produced before the Chief Judicial Magistrate, Kamrup, Guwahati, the two accused aforementioned were remanded to police custody. (v) While investigation of Basistha Police Station Case No. 170/2009 aforementioned was pending with the State police, the Central Government, in exercise of its power under Section 6(5) read with Section 8 of the National Investigation Agency Act, 2008, directed, on 1.6.2009, investigation of the said case to be conducted by the NIA. In terms of the directions, so issued by the Central Government, the NIA registered a case under the NIA Act, the Case being NIA Case No. 1/2009. (vi) By a Gazette notification, dated 09.07.2009, issued by the Government of India, Ministry of Home Affairs, in exercise of its powers under Section 3 of the Unlawful Activities (Prevention) Act, 1967, DHD(J), along with its factions, wings and front organizations, came to be declared as 'unlawful organization. 3. While investigation in Basistha Police Station Case No. 170/2009, which came to be subsequently registered as NIA Case No. 01/2009, had been in progress, Diyungmukh Police Station Case No. 03/2009, under Sections 120B/121/121A IPC, came to be registered against, amongst others, the present appellant, Golan Daulagupu, and one Jibangshu Paul, the case against them being, in brief, thus: (a) Sub-Inspector of Police, Ratneswar Das, on receiving information, on 11.2.2009, that some persons/workers of North Cachar Hills Autonomous Council (in short, 'the NCHAC) were going to deliver huge sums of money to DHD(J), a terrorist gang, somewhere, between Haflong and Diyungmukh for the purpose of procuring arms and ammunitions and for promoting organizational activities with a view to wage war against the State, informed his superior officer and, under the guidance of the then Deputy Superintendent of Police, Haflong, police started checking of vehicles coming from the direction of Haflong and proceeding towards Diyungmukh. During checking of the vehicles, on 11.022009, at about 3.30 pm, one Mahindra Scorpio, bearing registration No. AS-08-2010, was intercepted by the police at Thaijowari, wherein the present appellant and the said Jibangshu Paul were travelling, the other occupants of the vehicle being the appellant's two PSOs, Dipak Baruah and Mangal Singh Tokbi, and the appellant's driver, Ram Prasad Sharma, Jibangshu Paul being a contractor and the present appellant being a member of NCHAC. (b) A search, when conducted by police, led to the recovery of Rs. 32,11,000/-, in cash, from a bag, which Jibangshu Paul was carrying in the said vehicle. Police arrested the present appellant and the said Jibangshu Paul and, on the basis of the First Information Report, lodged, in this regard, at Diyungmukh Police Station, by Sub-Inspector of Police, Ratneswar Das, Diyungmukh Police Station Case No. 03/2009, under Sections 120B/121/121A IPC, aforementioned was registered. This case too was, later on, taken over for investigation by the NIA and, that is how, NIA Case No. 02/2009, under Sections 120B/121/121A IPC, read with Sections 16, 17, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967, and Section 25(1)(d) of the Arms Act, 1951, was borne. 4. In both the cases, namely, NIA Case No. 01/2009 and NIA Case No. 02/2009 aforementioned, NIA has already submitted charge-sheets, the charge-sheet, in NIA Case No. 02/2009, having been named the present appellant and the said Jibangshu Paul as accused. While hearing on the framing of charges in NIA Case No. 01/2009 is already complete and the matter is pending for orders, the hearing, on the framing of charges in NIA Case No. 02/2009, has begun. MERIT OF THE APPEAL 5. In the backdrop of the above position of law, let us, now, consider the merit of the present appeal. 6. While considering the present appeal, it needs to be borne in mind that, in the case at hand, it was required to be determined by the learned Special Court, as trial Court, and is, now, required to be determined by this Court, as an appellate Court, whether there were reasonable grounds for believing that the accusations, made against the present appellant, was prima facie true or not. However, determination of the question as to whether there are reasonable grounds for believing or not would obviously invite the Court to assign reasons so as to make it clear as to why this Court has taken the view that no reasonable grounds to believe exist or as to why reasonable grounds to believe exist. However, determination of the question as to whether there are reasonable grounds for believing or not would obviously invite the Court to assign reasons so as to make it clear as to why this Court has taken the view that no reasonable grounds to believe exist or as to why reasonable grounds to believe exist. In either way, therefore, the reasons are necessary to be assigned and this requirement invites and compels us to discuss, albeit as briefly as possible, the materials on record, which, to our mind, are relevant for the purpose of deciding this appeal and some of these materials even the learned counsel for the appellant has freely referred to. 7. Before, however, dealing with the present appeal, let us understand as to what the case of the prosecution, in general, is. 8. Broadly speaking, the prosecution's case, in brief, is thus: (i) DHD(J) is an unlawful association within the meaning of Section 2(p) of the UA(P) Act, 1967, inasmuch as DHD(J) had been indulging in unlawful activities as defined in Section 2(o) of the UA(P) Act, 1967, and had been, therefore, declared, on 09.07.2009, as an unlawful association after accused Phojendra Hojai and Babul Kemprai were arrested on 1st of April, 2009, with an amount of Rs. 1 (one) crore, in cash, and some weapons, which gave rise to NIA Case No. 01/2009. Accused Niranjan Hojai was the Commander-in-Chief of DHD(J), who had operated from outside India; whereas accused Jewel Garlosa was the Chairman of DHD(J), who, earlier, operated from Nepal, but established, later on, a hideout, at Bangalore, in conspiracy with accused-appellant, Ashringdaw Warisa @ Partho Warisa, who had, in turn, taken help of, and support from, Samir Ahmed. (ii) The ASDC, which is a political organization, came, with the support of DHD(J), to power in NCHAC in alliance with another national party. On coming to power, Dipolal Hojai was elected as the Chief Executive Member (in short, 'CEM') of the NCHAC. When, however, Niranjan Hojai found that Dipolal Hojai was not proving to be as useful as was needed, a tele-conference was, in the presence of Dipolal Hojai, held between Niranjan Hojai and those executive members of the NCHAC, who belong to ASDC including the present appellant, Golan Daulagupu, and their said alliance partners. When, however, Niranjan Hojai found that Dipolal Hojai was not proving to be as useful as was needed, a tele-conference was, in the presence of Dipolal Hojai, held between Niranjan Hojai and those executive members of the NCHAC, who belong to ASDC including the present appellant, Golan Daulagupu, and their said alliance partners. In this teleconference, Niranjan Hojai asked Dipolal Hojai to resign from the office of the CEM and elect Mohit Hojai as the CEM of NCHAC. Dipolal Hojai accordingly resigned on the pretext of ill-health and accused Mohit Hojai became the CEM. 9. It may also be pointed out that it does not appear to be the case of the prosecution that the appellant is being prosecuted for the various offences under the UA(P) Act, as amended till date, for the mere recovery of huge sum of money from his possession. The charges against the appellant, amongst others, pertain to raising of fund for the DHD(J) and/or funding the DHD (J), entering into a conspiracy, etc., to commit terrorist acts, and being a member of a terrorist gang. Necessarily, therefore, the applicability of the aforesaid charges cannot be understood from the view point of mere recovery of huge sum of money from the possession of the appellant; for, the recovery of the money is only a circumstance in the long chain of other circumstances and it is only an overall assessment of entire circumstances, which will offer justification for the charges against the accused-appellant. 10. The materials gathered, during investigation, reveal that the money, which was recovered from the possession of appellant and another was meant for DHD (J), a terrorist gang. It, thus, becomes necessary to have a brief idea as regard the activities of DHD (J) as alleged to have been committed by the DHD(J). Activities of DHD (J) 11. As regards the activities of DHD (J), what needs to be, now, very carefully noted is that the relevant portion of the statement of Dipolal Hojai, recorded by the NIA, reads as follows: The call of Niranajan came on Kulendra's phone and the mobile speaker was pat on full volume and kept at the centre of the table. Niranjan said "I am the C-in-C of DHD(J). By tomorrow 10 am, Dipolal Hojai has to resign and Mohit Hojai has to be made the CEM. Niranjan said "I am the C-in-C of DHD(J). By tomorrow 10 am, Dipolal Hojai has to resign and Mohit Hojai has to be made the CEM. If you don't listen, you will have the same fate as Purnendu Langthasa." One Debojit Thaosen, who was slightly drunk, tried to argue. He asked him as to why this was being ordered. Niranjan replied that Dipolal did not do much for the Dimasas regarding nomenclature of NC Hills, making a Dimasa SP, DC and Dimasa HODs of all departments. Debojit, then, said that even Mohit Hojai cannot get these things done. Niranjan, then, told him to shut up. I asked others for support after the call and tried to resist the pressure. But all others did not support due to fear. I had to resign. (Emphasis is added) 12. The question, which, now, pertinently, arises is: Whether the "threat', which had been given to Dipolal Hojai by Niranjan Hojai, falls within the ambit of the definition of 'terrorist act' as defined by Section 15 of the UA(P) Act. For the sake of brevity, the relevant provisions of Section 15 are reproduced below: 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 of any section of the people in India or any foreign country,- (a) *** *** (b) *** *** (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. (Emphasis is added) 13. The expressions, 'any other act' or 'any other person', which clause (c) uses, makes it clear that if one detains, kidnaps or abducts any person and threatens to kill or injure such a 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, and thereby threatens the sovereignty of India or strike terror in the people or any section of the people in India, commits a terrorist act. 14. 14. Because of the fact that Dipolal Hojai was the elected Chief Executive Member (CEM), but he was threatened by Niranjan Hojai by saying that he would meet the fate of his predecessor-in-office, who had been killed, and compelled thereby the elected CEM to resign, the action of Niranjan Hojai falls within the definition of terrorist act inasmuch as NCHAC enjoys constitutional protection under Schedule VI of our Constitution and forcing a person, such as, Dipolal Hojai, who was the elected CEM to resign from the post with a threat to kill him in the same way in which was killed his predecessors-in-office, clearly demonstrates that DHD(J) was, at the relevant point of time, headed by its Chairman, Jewel Garlosa, and its Commander-in-Chief, Niranjan Hojai, had not merely threatened Dipolal Hojai, an elected CEM, by instilling terror and fear in him and other elected members of the NCHAC, but forced Dipolal Hojai to resign as described hereinbefore. 15. Thus, by their action, as alleged and if true, DHD(J) had, in effect, threatened the very sovereignty of India, when the NCHAC was not allowed to function in accordance with the Constitutional scheme of governance. In such a case, a question mark is put on the very survival of the Constitution, though it is the Constitution, which is not only the source of power, but also the source of duty and responsibility of every citizen. 16. It would also be proper, in the context of present appeal, to reproduce here the relevant extracts from the Criminal Appeal No. 25/2010, regarding the activities of DHD (J), reported in 2010 (3) GLT 302 (National Investigation Agency Vs. Redaul Hussain Khan), which read as under: 121. Thus, until shown, otherwise, at the trial, the acts of the DHD(J) and its members must be inferred to amount to 'terrorist acts' within the meaning of Section 15 of the U.A.(P) Act, particularly, because their acts are calculated, as the materials in the case diary reflect, to threaten the unity, integrity, security and sovereignty of India and they strike terror in the people, in general, and, at times, even in a given Section of the people, such as, the labourers, by use of criminal force. Obviously, those, who help and aid the terrorist acts of the DHD(J) and its members, would be abettors of such offence(s). Obviously, those, who help and aid the terrorist acts of the DHD(J) and its members, would be abettors of such offence(s). As the DHD(J) runs, or attempts to run, almost a parallel Government, thereby shaking the very foundation of the constitutional scheme of governance, in India, its actions and the actions of its activists, such as, Niranjan Hojai, Mohit Hojai and Jewel Garlosa do amount to, unless can be shown otherwise, at the trial, the offence of waging war against the State within the meaning of Section 121 IPC and is punishable by death or imprisonment for life in terms of the penal provisions of Sections 121 of IPC 17. Since no change in circumstances, urging the Court to adopt a different view, has been pointed out, on behalf of the appellant, and in view also of the prima facie conclusion already reached by this Court, in Criminal Appeal No. 25/2010, as to the activities of DHD (J), there appears no necessity to enter into any further discussion in order to determine on a prima facie basis, if the DHD (J) was involved in terrorist activities. Role played by the appellant-facts 18. The present appellant, Golan Daulagupu, was, according to the NIA, a part of the group of people, who had entered into the said criminal conspiracy and, as a part of this conspiracy, the present appellant had-worked according to what Niranjan Hojai wanted. No wonder, therefore, that the further case of the NIA is as mentioned hereinbelow. 19. In the present case, Sub-Inspector of Police, Ratneswar Das, who, according to the NIA, had received information of money, belonging to DHD(J), an extremist organization, being carried, has stated, in his statement recorded by the NIA, that on receiving the information that persons, belonging to NCHAC, were going to deliver huge amount of money to the DHD(J) for buying arms and ammunitions for promoting their organizational activities, started checking of vehicles and, on 11.02.2009, at about 3.30 pm, a Scorpio vehicle, bearing registration No. AS-05-5133, coming from Haflong was searched and huge amount of money was found in possession of Jibangshu Paul, a contractor, and that the present appellant and his PSOs were also in his vehicle. 20. 20. Corroborating the evidence of Sub-Inspector of Police Ratneswar Das, the statements of Nur Mohammad Khan, Mahesh Singh Yadav and Bishnu Mishra, who all are police personnel, show that during checking of vehicles, on 11.02.2009, when the said Scorpio vehicle, occupied by the present appellant and Jibangshu Paul was, as indicated hereinbefore, checked, a sum of Rs. 32,11,000/- was recovered, in cash, from the possession of Jibangshu Paul and the money was seized. 21. Coming to the statement of Biraj Chakraborty, we notice that according to him, he works in the office of the Additional Chief Engineer, PHE Department, and in the morning of 09.02.2009, Mohit Hojai, CEM, called him to his office and told him that he (Mohit Hojai) had already talked to Saikia, Executive Engineer, and, then, directed him (Biraj) to contact Saikia and to ask him (Saikia) to send the balance on that very day, i.e., on 09.02.2009. Mohit Hojai, according to Biraj Chakraborty, also told him that Joybesh would reach the office of the Biraj Chakraborty at 4 pm to take the money and, on being contacted, Saikia asked Biraj Chakraborty to collect the money from Jibangshu Paul @ Raju at 4 pm, Jibangshu Paul being the co-accused in the case, who had been provided with the money, as mentioned above, when he was travelling with the present appellant. 22. The statement of Biraj Chakraborty also shows that at about 4.30 pm, on 09.02.2009, the said Joybesh, a man of Mohit Hojai, came to the office of Biraj Chakraborty to collect the money, whereupon Biraj Chakraborty took Joybesh to the house of Jibangshu Paul, who was already having the knowledge as regards delivery of money to Mohit Hojai, and, accordingly, Jibangshu Paul gave them a bag containing an amount of Rs. 70 lakhs and that after the delivery of the money to Mohit Hojai, Biraj Chakraborty came back to his house. Thereafter, according to Biraj Chakraborty, on 10.02.2009, Karuna Saikia, telephoned Biraj Chakraborty and ordered him to inform Jibangshu Paul 'to deliver the remaining cash on 11.02.2009 positively to the person as per the direction already given by Mohit Hojai to Jibanghsu Paul'. (Emphasis added) 23. Thereafter, according to Biraj Chakraborty, on 10.02.2009, Karuna Saikia, telephoned Biraj Chakraborty and ordered him to inform Jibangshu Paul 'to deliver the remaining cash on 11.02.2009 positively to the person as per the direction already given by Mohit Hojai to Jibanghsu Paul'. (Emphasis added) 23. When we turn to the statement given by Ram Prasad Sharma, who was driving the vehicle, in question, we notice that according to him, on 11.02.2009, the present appellant asked him to get ready for proceeding to Guwahati, whereupon he (Ram Prasad Sharma), along with Dipak Baruah and Mangal Singh Tokbi, both gunmen of the present appellant, reached the house of the appellant at 11.30 am and the appellant, after attending the session of the Council, proceeded to Guwahati and, at about 1.30 pm, accused Jibanghsu Paul also boarded the said vehicle at Railway Field Road, Haflong, and, at that point of time, Jibanghsu Paul was carrying a heavy bag with him and, on the way to Guwahati, police and BSF personnel stopped their vehicle and checked all the bags and found Rs. 32,11,000/- in the bag of Jibanghsu Paul. 24. Broadly in tune with the statement of Ram Prasad Sharma is the statement of Dipak Baruah, one of the PSOs of the appellant. 25. It is, now, the appellant's case, as presented before us, that the appellant, Golan Daulagupu, merely gave lift to Jibanghsu Paul as Jibanghsu Paul was waiting for a vehicle to go to Guwahati and, hence, in such circumstances, his bail application ought not to have been rejected by the learned Court below. 26. While considering the above submission, made on behalf of the appellant, it needs to be noted that neither the driver nor the PSOs of the present appellant supports the appellant's contention that he merely gave lift to Jibangshu Paul inasmuch as their statements do not show, even faintly, that Jibangshu Paul was waiting, with a heavy bag, and boarded the vehicle at Railway Field Road, Haflong, merely because the present appellant, Golan Daulagupu, happened to pass by in his vehicle. This shows prima facie that there was already an understanding or arrangement between the appellant, Golan Daulagupu, on the one hand, and Jibangshu Paul, on the other, that Jibangshu Paul would board the vehicle at Railway Field Road, Haflong, with money to be carried to Guwahati and, it is for this reason, that neither the driver nor the PSOs of the appellant have said anything indicating that Jibangshu Paul was merely given a lift by the present appellant. 27. Coupled with the above, a Court shall consider that every person, unless shown otherwise, has common sense. The statement, given by Biraj Chakraborty, more than amply shows that accused Jibangshu Paul had been carrying money on the orders of Mohit Hojai inasmuch as he had the instruction to carry the remaining cash, on 11.02.2009, 'positively' to the person as had already been directed by Mohit Hojai. A person, with common sense, could not have carried a huge sum of money, such as, Rs. 32 lakhs, in cash, in a bag, without a vehicle and await arrival of a vehicle standing by the side of the road so as to take a lift if someone was kind enough to give him a lift. 28. Hence, rationality will demand the Court to assume, at this stage, that Jibanghsu Paul was awaiting arrival of the appellant, in his vehicle, so as to carry Jibangshu Paul to Guwahati with the cash, in question. Prosecution is not entirety incorrect, when it says that the appellant's vehicle was used, because he had two PSOs with him, which would have, ordinarily, allowed the vehicle to pass without being checked; but, for the fact that Sub-Inspector of Police, Ratneswar Das, had been in receipt of information about money being carried and all vehicles, moving, on the road, to Diyungmukh, were being checked and, hence, the vehicle, wherein the present appellant, along with Jibanghsu Paul, was moving, got checked and the cash, in question, was found. This cannot be considered as a mere co-incidence, particularly, when the NIA has also produced the record of the calls, which had been made, on 11.02.2009, between Jibanghsu Paul and Golan Daulagupu, which shows that Jibanghsu Paul and the present appellant had been continuously in touch with each other. This cannot be considered as a mere co-incidence, particularly, when the NIA has also produced the record of the calls, which had been made, on 11.02.2009, between Jibanghsu Paul and Golan Daulagupu, which shows that Jibanghsu Paul and the present appellant had been continuously in touch with each other. The appellant had even talked to Jibanghsu Paul, on 11.02.2009, at 9.18 hours, 10.48 hours, 12.23 hours and, eventually, at 13.02 hours, i.e. less than 1/2 an hour before the Jibanghsu Paul had boarded the present appellant's vehicle. 29. When the present appellant was a party to the conference, which was held at the residence of Dipolal Hojai, wherein Niranjan Hojai, sitting abroad, threatened Dipolal Hojai to resign or else, face the consequence of his predecessors-in-office, who had been killed in the past, and when there is nothing on record to show that the appellant had disassociated himself from Mohit Hojai, there was more than reasonable ground for the learned Special Court to infer that a prima facie case had been made out against the appellant that he, pursuant to the said criminal conspiracy, had given lift to his co-accused, Jibanghsu Paul, who was to carry the money, in cash, to Guwahati to be handed over to the person as had been directed by Mohit Hojai so that arms and ammunitions could be purchased. The statement of the present appellant recorded under Section 164 Cr. PC., which the prosecution calls a confessional statement, is not really a confessional statement inasmuch as the accused-appellant merely claimed that he had given lift to accused Jibangshu Paul and completely disassociated himself from the cash, which was being carried, by contending to the effect that his act of giving lift was wholly innocent. Limitation in granting bail for offences falling under Chapter IV and VI of UA (P) Act-Law laid down 30. What, now, needs to be noted is that this Court has held, in Jayanta Kumar Ghosh Vs. Limitation in granting bail for offences falling under Chapter IV and VI of UA (P) Act-Law laid down 30. What, now, needs to be noted is that this Court has held, in Jayanta Kumar Ghosh Vs. State of Assam, reported in 2010 (4) GLT 1, that Special Court, constituted under the NIA Act, when considers a bail application, the consideration is really under Section 437 of the Code, which is, ordinarily, meant for Judicial Magistrates, and the special power, which, otherwise, stands vested in a Sessions Court under Section 439 of the Code does not apply to a Special Court, though even a Court of Session may be notified as a Special Court by the Central Government in exercise of its powers under Section 11. This apart, this Court has held, in Jayanta Kumar Ghosh (supra), that besides the limitations, which Section 437(1) imposes on the Magistrate's power to grant bail, in a case, where there appears reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, there is yet another limitation, which is imposed, on the power of the Special Court, by the proviso to Sub-Section (5) of Section 43D of the UA(P) Act. 31. Let us, now, determine as to what limitations the Special Court ran, in the present case, in the matter of granting of bail to the accused-appellant. While considering this aspect, it needs to be noted that the appellant herein is an accused of having committed offences under Sections 120(B)/121/121(A) IPC read with Sections 16, 17, 18 and 19 of the UA(P) Act. 32. Considering the fact that it is the proviso to Section 43D(5) of the UA(P) Act, which puts severe restrictions on the Special Court's power to grant bail, it is imperative to take note of what the proviso to Section 43D(5) conveys. 32. Considering the fact that it is the proviso to Section 43D(5) of the UA(P) Act, which puts severe restrictions on the Special Court's power to grant bail, it is imperative to take note of what the proviso to Section 43D(5) conveys. For the sake of clarity, Sub-Section (5) of Section 43D, which is of utmost importance, is reproduced below: (5) Notwithstanding anything contained in the Code, no person accused of 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 of the opinion that there are reasonable grounds for, believing that the accusation against such person is prima facie true. (Emphasis is added) 33. A bare reading of Sub-Section (5) of Section 43D shows that apart from the fact that Sub-Section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail, the proviso to Sub-Section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail by laying down that if the Court, on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UA(P) Act, is prima facie true, such an accused person shall not be released on bail or on his own bond. 34. Thus, if the Special Court, on perusal of the case diary, forms an opinion that there are reasonable grounds for believing that the accusation, against an accused person, of the commission of offence or offences, under Chapter IV and/or Chapter VI, is prima facie true, it will not remain within the powers of the Court to grant bail in such a case. 35. 35. The above position of law is further made clear by Sub-Section (6) of Section 43D, which lays down that me restrictions, on granting of bail specified in sub-section (5), are 'in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grating of bail'. 36. The logical conclusion would, therefore, be that in a case, investigated by the NIA, when the Special Court; forms an opinion that there are reasonable grounds for believing that the accused has committed an offence punishable with death or imprisonment for life, the Special Court would have no jurisdiction to grant bail to such an accused except as may be provided by law. In addition thereto, the Special Court shall also not be able to release an accused on bail if the Court, on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure, is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences, under Chapter IV and/or Chapter VI of the UA(P) Act, is prima facie true. 37. In the backdrop of Clauses (i) and (ii) of Section 437(1) of the Code, when one reverts to Section 43D(5), what surfaces is that the proviso to Sub-Section (5) of Section 43D, (which lays down that notwithstanding anything contained in the Code of Criminal Procedure, no person accused of an offence, punishable under Chapter IV and VI of the NIA Act shall, if in custody, 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 Cr. P.C. is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true), can be treated to be, and can, by legal fiction, be read, as Clause (iii) of Section 437(1) of the Code. Concept Of Proviso To Section 43d (5) 38. Dealing with the concept of the proviso to Section 43D(5), the Division Bench, in Jayanta Kumar Ghosh (supra), observed and held as to what the expression prima facie and the expression true, which appear in the proviso to Section 43D(5), convey. The relevant observations, made this regard, read as under: 63. Concept Of Proviso To Section 43d (5) 38. Dealing with the concept of the proviso to Section 43D(5), the Division Bench, in Jayanta Kumar Ghosh (supra), observed and held as to what the expression prima facie and the expression true, which appear in the proviso to Section 43D(5), convey. The relevant observations, made this regard, read as under: 63. Before proceeding further, it is also, to our mind, necessary to ascertain as to what the scope of the proviso to Section 43D(5) is and when would this proviso be attracted. While dealing with this aspect of the appeal, it is necessary to bear in mind that the proviso to Section 43D(5) states 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'. The expression, 'prima facie true' is an expression, which does not, ordinarily, appear in penal statutes. 64. Let us, therefore, ascertain as to what the word 'prima facie' means. The word, prima facie, has been described in the Black's Law Dictionary as: "sufficient to establish fact or raise a presumption unless disproved or rebutted". Rebuttable presumption means an inference drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence. Rebuttable resumption also means prima facie presumption or disputable presumption or conditional presumption. 65. The Concise Dictionary of Collins has defined, prima facie, as an adjective thus: "At first sight; as it seems at first." "And prima facie evidence is an evidence that is sufficient to establish a fact or to raise a presumption of the truth unless controverted." 66. Warton's Law Lexicon defines that a prima facie case does not mean a case proved to the hilt, but a case, which can be said to be established if the evidence, which is led in support of the same, are believed. 67. Warton's Law Lexicon defines that a prima facie case does not mean a case proved to the hilt, but a case, which can be said to be established if the evidence, which is led in support of the same, are believed. 67. The Supreme Court, in Marlin Burn Ltd. V. R.N. Banerjee, 1958 SCR 514 at p. 530 ( AIR 1958 SC 79 at p. 85), observed thus:"..........A prima facie case does not mean a case proved to the hilt, but a case, which can be said to be established if the evidence, which is led in support of the same, were believed. While determining whether a prima facie case had been made out, the relevant consideration is whether, on the evidence led, it was possible to arrive at the conclusion, in question, and not whether that was the only conclusion, which could be arrived at on that evidence." 68. The meaning of the word, 'prima facie', given in Marlin Burn Ltd. (supra), has been followed by the Supreme Court, in its later decision, in The Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. Vs. B. Dasappa, M.T. represented by the Binny Mills Labour Association, reported in (AIR 1960 SCC 1352). 69. From the meaning, attributed to the word, 'prima facie', by various dictionaries, as indicated above, and the observations, made by the Supreme Court, in its decisions, in The Management of the Bangalore Woollen Cotton and Silk Mills (supra), what clearly follows is that prima facie is a Latin word, which means, 'At first sight or glance or on its face' and, in common law, it is referred to as 'the first piece of evidence of fact', i.e., considered true unless revoked or contradicted. 70. In the face of the above observations made by the Supreme Court, it may be construed that prima facie case would mean whether the inference drawn is a possible inference or not. 71. The word, 'true', according to Collins Dictionary, means something, which is not false, fictional or illusory, but factual and confirming with reality or exactly in tune. Webster's Third New International Dictionary defines True as: "Something, which is in accordance with fact or reality". 72. The word, 'true' has been defined, in World Book Dictionary, as "Agreeing with fact, not false". 73. Webster's Third New International Dictionary defines True as: "Something, which is in accordance with fact or reality". 72. The word, 'true' has been defined, in World Book Dictionary, as "Agreeing with fact, not false". 73. Thus, the expression, 'prima facie true', would mean that the court shall undertake an exercise to determine as to whether the accusations, made against the accused, are inherently improbable and/or wholly unbelievable. Ordinarily, while considering a complaint. made against an accused, the court assumes the contents of the complaint to be true and correct and, then, proceed to decide as to whether the allegations, made in the complaint, make out a case of commission of offence by the accused or not. No exercise is required to be undertaken by the court to determine the truthfulness or veracity of the accusations. However, when the word, 'prima facie', is coupled with the word, 'true', it implies that the court has to undertake an exercise of cross-checking the truthfulness of the allegations, made in the complaint, on the basis of the materials on record. If the court finds, on such analysis, that the accusations made are inherently improbable, or wholly unbelievable, it may be difficult to say that a case, which is prima facie true, has been made out. 74. The term 'true' would mean a proposition that the accusation brought against the accused person, on the face of the materials collected during investigation, is not false. The term false again would mean a proposition, the existence of which cannot be a reality. While arriving at a finding whether there are reasonable grounds for believing that the accusation against the accused is prima facie true or false, the Court can only look into the materials collected during investigation; and, on its bare perusal, should come to a finding that the accusation is inherently improbable. However, while so arriving at a finding, the Court does not have the liberty to come to a conclusion, which may virtually amount to an acquittal of the accused. (Emphasis added) 75. In the case of State of Gujrat Vs. Gadhvi Rambhai Nathabai, reported in (1994) 5 SCC 111 , the Supreme Court while dealing with the principles governing the granting of bail under the TADA, observed: 8. (Emphasis added) 75. In the case of State of Gujrat Vs. Gadhvi Rambhai Nathabai, reported in (1994) 5 SCC 111 , the Supreme Court while dealing with the principles governing the granting of bail under the TADA, observed: 8. It is true that for the purpose of grant of bail, the framers of the Act require the Designated Court to be satisfied that there were reasonable grounds for believing that the accused concerned was not guilty of such offence but this power cannot be exercised for grant of bail in a manner which amounts virtually to an order of acquittal, giving benefit of doubt to the accused person after weighing the evidence collected during the investigation or produced before the court. At that stage the Designated Court is expected to apply its mind as to whether accepting the allegations made on behalf of the prosecution on their face, there are reasonable grounds for believing that the accused concerned was not guilty of the offence. At that stage the Designated Court is not required to weigh the material collected during the investigation. 76. In short, thus, on a bare reading of the materials, as may have been collected during investigation, if the Special Court finds that the materials, so collected, are sufficient to form, when assumed to be true, an opinion that there are reasonable grounds to believe that the accusations, made against the accused, are prima facie true, the Special Court will be disempowered from releasing the accused on bail. At the stage of bail, no minute scrutiny or microscopic dissection of the materials, collected during investigation, shall be undertaken by the Special Court. Credibility or otherwise of the materials collected would not be the subject-matter of scrutiny. What, at best, the Special Court can do, and shall do, is to examine if the accusations made, on the basis of the materials collected, are wholly improbable. When the materials are, on examination by the Special Court, are found to be not wholly improbable and the Special Court finds, on assuming such materials to be true, that the accusations, made against an accused, as regards commission of an offence under Chapter IV and/or Chapter VI of the UA(P) Act, are prima facie true, such materials would be enough to attract the bar imposed by the proviso to Section 43-D(5). 77. 77. To put it a little differently, the Special Court is required to examine the materials, collected during investigation, assuming the same to be true and if, such materials, on such examination and consideration, are found to make out a case against the accused, the Special Court has to determine if there is any such thing in the materials, so collected, which would make the case, which has been made out against the accused, as a wholly improbable case. If the Special Court, on undertaking such an exercise, finds reasonable grounds to infer that the case which has been made out against the accused. is not wholly improbable, the case would be treated as a case, which is sufficient for the Special Court to form an opinion that there are reasonable grounds to believe that the accusations, made against the accused, are prima facie true. 78. The expression, 'reasonable ground'. means something more than prima facie ground. which contemplates a substantially probable case for believing that the accused is guilty of the offence(s) alleged. Under Section 437 Cr. P.C., an accused is not to be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence, which is punishable with death or imprisonment for life. Under Section 437 Cr. P.C., the burden is on the prosecution to show existence of reasonable ground for believing that the accused is guilty. Hence, the presumption of innocence, which always runs in favour of the accused, is displaced only on the prosecution showing existence of reasonable ground to believe that the accused is guilty. (See Union of India vs. Thamissharasi, reported in (1995) 4 SCC 190 , and Union of India vs. Shiv Shankar Kesari, reported in (2007) 7 SCC 798 ). 79. Coupled with the above, the proviso to Section 43D(5) does not require a positive satisfaction by the court that the case against the accused is true. What is required is a mere formation of opinion by the court on the basis of the materials placed before it. The formation of opinion cannot be irrational or arbitrary. Such formation of opinion cannot be based on surmises and conjectures; but must rest on the materials collected against the accused. What is required is a mere formation of opinion by the court on the basis of the materials placed before it. The formation of opinion cannot be irrational or arbitrary. Such formation of opinion cannot be based on surmises and conjectures; but must rest on the materials collected against the accused. Since the presumption of innocence runs in favour of the accused, it logically follows that if there are, in given circumstances, grounds for believing that the case, against the accused, is true, a case of commission of offence under Chapter IV or Chapter VI of the UA(P) Act, 1967. can be said to have been made out and when such a case is made out, it would be tantamount to saving that reasonable grounds exist for opining that the accusations are prima facie true. In such a case, the bar, imposed by the proviso to Section 43D(5) on the court's power to grant bail, gets attracted. 80. We may point out that Section 20(8) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as 'the TADA Act') (since repealed), laid down that no person, accused of an offence punishable under the said Act, or any rule made thereunder, shall, if in custody, be released on bail, or on his own bond, unless, amongst others, the court is satisfied, where the Public Prosecutor opposes the application, that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence, while on bail. Section 20(9) of the Act made it clear that the limitation on granting of bail, specified in sub-Section (8) of Section 20, is in addition to the restrictions, which the Code of Criminal Procedure, or any other law, in force, imposes. 81. There are no corresponding provisions, in the NIA Act, as were present in Section 20(8) and Section 20(9) of the TADA Act. Notwithstanding, however, the fact that the provisions (as contained in sub-Section (8) and/or sub-Section (9) of Section 20 of the TADA Act) no longer find place in the NIA Act, the fact remains that even under the scheme of the NIA Act, the Special Court, as already discussed above, is a 'Court' other than the High Court and Court of Session. In such circumstances, the limitations, imposed by Clauses (i) and (ii) of sub-Section (1) of Section 437 Cr.P.C., are applicable to the Special Court too. In addition thereto, when a case falls within the ambit of the proviso to Section 43-D(5), there would be an additional bar, on the part of the Special Court, to release an accused on bail, the bar being that the Special Court shall not release the accused on bail or on his own bond if the Court, on 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. (Emphasis added) 39. Thus, we find that in the facts of the present case, the learned Special Court, having found that the allegations against the appellant was prima facie true, could not have granted bail to the appellant in view of the applicability of the specific prohibition in granting bail provided under the proviso to 43D(5) of the UA(P) Act. 40. In view of the findings of the learned Special Court, whether it is open to the High Court, while sitting as appellate Court, to disturb the finding arrived at by the Special Court and, if so, what is the scope of the appellate jurisdiction of the High Court under the NIA Act is an important question, which, now, needs to be looked into. HIGH COURT'S APPELLATE JURISDICTION UNDER SECTION 21(4) OF THE NIA ACT VIS-A-VIS HIGH COURT'S POWER UNDER SECTION 439 OF THE CODE 41. In the light of the law, laid down in Redaul Hussain Khan & Ors. Vs. State of Assam & Ors, reported in 2009 (3) GLT 855, and Jayanta Kumar Ghosh (supra), let us, now, note the difference between High Court's appellate jurisdiction under Section 21(4) of the NIA Act and the High Court's power under Section 439 of the Code. 42. The scheme of the NIA Act, if analysed carefully, shows that accused has to apply for bail, if he so chooses, to the Special Court and if his prayer for bail is refused by the Special Court, then and then only, the accused may prefer an appeal to the High Court in terms of Section 21(4) against an order refusing to grant bail. In other words, without having applied for bail and the prayer for bail having been disallowed by the Special Court, a person, who is accused of having committed a scheduled offence covered by the scheme of the NIA Act, cannot directly apply for bail to the High Court under Section 439(1) or prefer an appeal under Section 21 (4) of the NIA Act, against the Special Court's order rejecting his prayer for bail and seeking thereby an order of bail from the High Court. Similarly, if the Special Court grants bail, the State may prefer an appeal to the High Court, in terms of Section 21 (4), seeking cancellation of such bail Hence, without applying for bail to the Special Court, an accused, who is arrested, cannot apply for bail to the High Court by taking recourse to Section 439 of the Code. 43. An order refusing or granting bail, in a case under the Prevention of Terrorist Activities Act, 1987, too, was an appeallable order under Section 34 thereof. Explaining the parameters of the powers of the High Court, while considering an appeal from an order granting bail and how it differed from an application for bail under Section 439 of the Code, the Supreme Court, in State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh & Ors, reported in (2003) 8 SCC 50 , observed as under: 10. Sub-section (4) of Section 34 of POTA provides for an appeal to the High Court against an order of the Special Court granting or refusing bail. Though the word "appeal" is used both in the Code of Criminal Procedure and the Code of Civil Procedure and in many other statutes but it has not been defined anywhere. Over a period of time, it has acquired a definite connotation and meaning; which is as under: A proceeding undertaken to have a decision reconsidered by bringing it to a higher authority, especially the submission of a lower court's decision to a higher court for review and possible reversal. An appeal, strictly so-called, is one in which the question is, whether the order of the court from which the appeal is brought was right on the material which the court had before it. An appeal is removal of the cause from an inferior to one of superior jurisdiction for the purposes of obtaining a review or retrial. An appeal, strictly so-called, is one in which the question is, whether the order of the court from which the appeal is brought was right on the material which the court had before it. An appeal is removal of the cause from an inferior to one of superior jurisdiction for the purposes of obtaining a review or retrial. An appeal, generally speaking, is a rehearing by a superior court on both law and fact. 11. Broadly speaking, therefore, an appeal is a proceeding taken to rectify an erroneous decision of a court by submitting the question to a higher court, and in view of the express language used in sub-section (1) of Section 34 of POTA the appeal would lie both on facts and on law. Therefore even an order granting bail can be examined on merits by the High Court without any kind of fetters on its powers and it can come to an independent conclusion whether the accused deserves to be released on bail on the merits of the case. The considerations which are generally relevant in the matter of cancellation of bail under sub-section (2) of Section 439 of the Code will not come in the way of the High Court in setting aside an order of the Special Court granting bail. It is, therefore, evident that the provisions of POTA are in clear contradistinction with that of the Code of Criminal Procedure where no appeal is provided against an order granting bail. The appeal can He only against an order of the Special Court and unless there is an order of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to them. Existence of an order of the Special Court is, therefore, a sine qua non for approaching the High Court. 44. Referring to the above observations, made in Salimbhai Abdulgaffar Shaikh (supra), this Court, in Redaul Hussain Khan (supra), held as under: 98. In the light of the observations made above, it becomes clear that an appeal is a proceeding to rectify an erroneous decision of a Court both on facts as well as on law. 44. Referring to the above observations, made in Salimbhai Abdulgaffar Shaikh (supra), this Court, in Redaul Hussain Khan (supra), held as under: 98. In the light of the observations made above, it becomes clear that an appeal is a proceeding to rectify an erroneous decision of a Court both on facts as well as on law. An order, granting or refusing bail, could have been, in the light of the provisions of Section 34(4), examined on merit by the High Court without any other fetters and while considering a question of cancellation of bail the general principles, governing Section 439(2) of the Code, would not come in the way. The Apex Court, in Salimbhai Abdulgaffar Shaikh (supra), while laying down that the scheme for appeal, under the POTA, is in contradistinction to that of the Code, pointed out that an appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing or granting bail, the accused cannot prefer appeal to the High Court seeking bail. What, further, follows from the above discussion is that even a High court could not have invoked its power, under the Section 439, to grant bail to a person, accused of an offence under the POTA. Consequently, in order to obtain release on bail, an accused person, arrested under the POTA, was required to, first, apply for bail to the Special court, where the Special Court was constituted, or to the Court of Session, where the Special Court was not constituted, and, if his application for bail was rejected, then and then only he could have preferred an appeal against the order refusing bail. Similarly, even the State could have preferred an appeal if the Special Court or the Court of Session, as the case may be, happened to grant bail to such an accused person in exercise of powers under Section 437 of the Code. 99. Though it was contended, in Salimbhai Abdulgaffar Shaikh (supra), that TADA had not taken away the High Court's power under Section 439, the Supreme Court, referring to Usmanbhai Dawoodbhai Memon (supra), held that there was complete exclusion of the jurisdiction of the High Court, under the TADA, to entertain a bail application made under Section 439 and that this view was reiterated in State of Punjab Vs. Kewal Singh, reported in 1990 Supp SCC 147. Kewal Singh, reported in 1990 Supp SCC 147. The Apex Court concluded, at para 14, in Salimbhai Abdulgaffar Shaikh (supra), thus; 14. That apart, if the argument of the learned counsel for the respondents is accepted, it would mean that a person whose bail under POTA has been rejected by the Special Court will have two remedies and he can avail any one of them at his sweet will. He may move a bail application before the High Court under Section 439 Cr. P.C. in the original or concurrent jurisdiction, which may be heard by a Single Judge or may prefer an appeal under sub-section (4) of Section 34 of POTA which would be heard by a Bench of two Judges. To interpret a statutory provision in such a manner that a court can exercise both appellate and original jurisdiction in respect of the same matter will lead to an incongruous situation. The contention is therefore fallacious. 45. We, therefore, in the light of the discussions held by this Court, in Redaul Hussain Khan & Ors. Vs. State of Assam & Ors., reported in 2009 (3) GLT 855, agree with the views expressed therein that once the investigation, under the scheme of the MA Act is taken over by the NIA, it is the Special Court which can authorize further detention of an arrested accused. When such an arrested accused applies for bail to the Special Court, the source of power to consider such an application for bail lies in Section 437 and not Section 439 of the Code. Even a High Court cannot invoke its powers, under Section 439, to grant bail if it has been refused by the Special Court nor can the High Court, by resorting to its power under Section 439, cancel bail if bail has been granted to such an accused by the Special Court. If the bail has been refused or granted by the Special Court the aggrieved party may, however, prefer an appeal, in terms of Section 21(4), to the High Court. Such an appeal has to be heard by a Division Bench of the High Court and in such an appeal, the merit of the order, granting or refusing bail, can be questioned. (Emphasis added) 46. Such an appeal has to be heard by a Division Bench of the High Court and in such an appeal, the merit of the order, granting or refusing bail, can be questioned. (Emphasis added) 46. In the case of Redaul Hussain Khan (supra), this Court has, on analyzing the scheme of the NIA Act, concluded, at Para 42, 43 and 44, as follows: 42. On a close reading of Section 16 of the NIA Act, what becomes clear is that notwithstanding the fact that, according to Section 16(3) of the NIA Act, a Special Court, for the purpose of trial of a scheduled offence, has all the powers of a Court of Session and shall try such offence 'as if it were a Court of Session', the Special Court does not become a Court of Session inasmuch as it is only the power of trial of a Court of Session that the Special Court, by virtue of Section 16(3), entitled to exercise. In other words, the expression, 'as if it were a Court of Session', which occur in Section 16(3), really reflects that it is only the procedure for trial of a Sessions case, which a Special Court can follow; but it is, otherwise, not a Court of Session. 43. I may pause here to point out that Section 16(3) of the NIA Act states, "Subject to the other provisions of this Act, a Special Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session." Similar provisions existed in Section 14(3) of TADA. Both the provisions were, thus, pari materia. The Supreme Court had the occasion to interpret Section 14(3) in Usmanbhai Dawoodbhai Memon (supra). Both the provisions were, thus, pari materia. The Supreme Court had the occasion to interpret Section 14(3) in Usmanbhai Dawoodbhai Memon (supra). Referring to the expression 'as if it were', appearing in Section 3 of the TADA, the Supreme Court pointed out, in Usmanbhai Dawoodbhai Memon (supra), that though the Parliament has vested, by using the words 'as if it were', in the Designated Court, the status of a Court of Session, yet this legal fiction, contained in Section 14(3), must be restricted to the procedure to be followed for trial of an offence under the TADA, i.e., trial must be in accordance with the procedure prescribed, by the Code, in respect of a trial before a Court of Session in so far as it is applicable. The relevant observations, made in this regard, which appear at para 18, read as under: 18. No doubt, the legislature by the use of the words "as if it were" in Section 14(3) of the Act vested a Designated Court with the status of a Court of Session. But, as contended for by Learned Counsel for the State Government, the legal fiction contained therein must be restricted to the procedure to be followed for the trial of an offence under the Act i.e. such trial must be in accordance with the procedure prescribed under the Code of the trial before a Court of Session, insofar as applicable. 44. The above impression gets strengthened from the fact that Section 16(1) provides that a Special Court may take cognizance of offence, without the accused being committed to it for trial, which, in turn, implies that a Special Court takes cognizance of an offence as a Court of original jurisdiction and does not have the trappings of a Court of Session, which cannot, ordinarily, take, in the light of Section 193 of the Code, cognizance of an offence, unless the case, in terms of Section 209 of the Code, is committed to it, for, Section 193 states that a Court of Session cannot take cognizance of an offence as a Court of original jurisdiction except when the Code or the special law provides otherwise. Thus, a Court of Session could not have taken cognizance of an offence, under the NIA Act, without the case having been committed to it; but, as the NIA Act provides for taking cognizance of an offence by a Court of Session, without the case being committed to it, the Court of Session can take cognizance of offence, under the NIA Act, as the Court of original jurisdiction. Such a deviation is possible even in respect of a specified offence under the Indian Penal Code. For instance, sub-Section (2) of Section 199 of the Code provides that when an offence, falling under Chapter XXI of the IPC, is alleged to have committed against a person, who, at the time of such commission, is the President of India, Vice-President of India, Governor of a State, the Administrator of a Union territory or a minister of the Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs of the Union or of a State in respect of his conduct in the discharge of his functions, a Court of Session may take cognizance of such an offence, without the case being committed to it, upon a complaint, in writing, made by the Public Prosecutor. 47. This Court, in Redaul Hussain Khan (supra), also pointed out, at para 65, 66 and 74, as under: 65. It is also well to remember that merely because of the fact that a Court of Session can function as a Special Court if Special Court is not constituted under a special law, it does not follow that the Court of Session, which exercises the powers of the Special Court, would become a Court of Session. In the given scheme of a 'special law', a Court of Session, as already pointed out in AR Antulay (supra), may become a Court of original jurisdiction with no trappings of the Court of Session. In such circumstances, merely because of the fact that a Sessions Judge exercises the jurisdiction of a Special Court, the Special Court would not be treated, or would not be deemed, to have become, a Court of Session. In such circumstances, merely because of the fact that a Sessions Judge exercises the jurisdiction of a Special Court, the Special Court would not be treated, or would not be deemed, to have become, a Court of Session. When the Special Court, in the case at hand, falls within the expression, 'a Court other than the High Court or the Court of Session', which appears in Section 437(1), it logically follows that a Special Court would run all the limitations, which are imposed by Section 437 on the powers of a Court, covered by Section 437, in respect of granting of bail. Logically extended, this will mean that, amongst other limitations, as specified by sub-Section (1) of Section 437, a Special Court would not be able to release a person on bail if there appears a reasonable ground for believing that he has been guilty of offences punishable with death or imprisonment for life except when a case is covered by the proviso to Section 437(1), which says that even such an accused person may be released, if the accused person is a woman or is sick or is infirm or if, for any other special reason, the Special Court considers it just and proper to release such a person. 66. Unlike, therefore, the powers, which a Court of Session enjoys, while considering a bail application, under Section 439, the Special Court runs the limitations, which are imposed by Section 437. Resultantly, therefore, a Special Court cannot enlarge a person on bail except to the extent as provided in Section 437. Apart from the limitations imposed on the powers of a Special Court as are prescribed by Section 437, even the special statute, which creates the Special Court, can impose additional limitations. No wonder, therefore, that the power to grant bail, in the case of NDPS, is much more restricted than what Section 437 provides inasmuch as Section 37 of the NDPS imposes further limitations, on the Special Court, in matters of granting bail and such limitations would apply to a Sessions Judge even if he acts as a Special Court under the NDPS Act, for, while exercising the powers of a Special Court, the Session Judge does not act or function as a Court of Session, but as a Court of ordinary criminal jurisdiction. ****** ******* ******* 74. ****** ******* ******* 74. Having held that the source of power of a Designated Court, under the TADA, to grant bail is traceable to Section 437 inasmuch as the Designated Court fells within the expression 'a Court other than the High Court or Court of Session', the Apex Court further clarified that the Designated Court's power to grant bail is not contained in Section 20(8); rather, Section 20(8) places only limitations on such power in addition to the limitations, which the Code has already imposed, on a Designated Court, by making it a Court within the ambit of Section 437. This was made explicit by Section 20(9), which provided that the limitations on the granting of bail, specified in sub-section (8), are in addition to the limitations under the Code or any other law for the time being in force. 48. Apart from the fact that the conclusions, on the questions of law indicated above, reached in the case of Redaul Hussain Khan (supra), have not been disagreed with by a Division Bench of this Court in Jayanta Kumar Ghosh (supra), we are, on a reconsideration of the whole scheme of the NIA Act read with the provisions for bail in the Code, agree with the above propositions of law, governing the powers of the Special Court, as regards the granting of bail, or refusal to grant bail, and hold that the above propositions of law are wholly correct. 49. Thus, the limitations, imposed by the proviso to Section 43D (5), shall, to the extent that it is inconsistent with Section 437, would supersede Section 437 and if it is not inconsistent, then, it would be in addition to the limitations imposed by Section 437. 50. The proviso to Section 43D(5) imposes a limitation in addition to the limitations, which Clauses (i) and (ii) of Section 437 (1) of the Code of Criminal Procedure, impose on the Court's power to release an accused on bail. Thus, the proviso to Section 43D(5) is an additional restriction on the Court's power to grant bail. 51. We must also point out that when a case is registered and investigated, under the NIA Act, for commission of scheduled offences, the Special Court would be competent to deal with not only the scheduled offences, but also other offences under any law for the time being in force. 51. We must also point out that when a case is registered and investigated, under the NIA Act, for commission of scheduled offences, the Special Court would be competent to deal with not only the scheduled offences, but also other offences under any law for the time being in force. Such a law would obviously include offences under the Indian Penal Code. We have also settled that the power of the Special Court, constituted under the NIA Act, to grant bail is covered by, and shall remain confined within, the ambits of Section 437 of the Code and, as an appellate Court, the High Court's power, under Section 21(4) of the NIA Act, would be coextensive with the powers of the Special Court. We have further settled that the ban, imposed on the power of the. Court to release an accused, if a case falls within the proviso to Section 43D(5), is, as already mentioned above, in addition to the limitations imposed on the powers of Special Court (same as magisterial courts) by Clauses (i) and (ii) of Section 437(1). 52. Our above conclusion that this Court's power, while considering an appeal under Section 21 (4) of the NIA Act, would be coextensive with the power of the Special Court and that the ban imposed on the power of the Special Court to release an accused on bail, which appears in the proviso to Section 43D(5), if a case falls within the proviso to Section 43D(5), is in addition to the limitations imposed on the powers of Special Court (same as magisterial courts) by Clauses (i) and (ii) of Section 437(1), stand upheld by the Supreme Court in its order, dated 25.8.2011, passed, in SLP (Criminal) No. S5063/2010), wherein, while allowing the appellant, Redaul Hussain Khan, to withdraw his appeal and giving him liberty to apply for bail to the Special Court afresh if there are any change in the circumstances or if fresh facts are placed before the Court, the Supreme Court made it, however, clear thus: We also make it clear that we are not interfering with the order of the High Court. (Emphasis added) 53. (Emphasis added) 53. In view of the law that there exists no extra-ordinary or special powers of the High Court to grant bail, sitting as an appellate Court under Section 21 (4) of NIA Act, and since the discussion on facts and relevant law, made hereinbefore, make it clear that circumstances, in the present case, justify, on a prima facie basis, an inference that the appellant was an activist of DHD(J), which acted as a terrorist gang and that there are reasonable grounds to believe feat the allegations, leveled against the appellant that the appellant had committed offences under Chapter IV of the NIA Act are prima facie true and the Special Court was well within its jurisdiction, in the present case, in not granting bail to the present appellant inasmuch as the learned Special Court stood disempowered by the proviso to Section 43D(5) of the UAP Act, from allowing the appellant to go on bail. To put it a little differently, the learned Special Court did not commit any illegality in rejecting the present appellant's application for bail and the accused-appellant's rejection of bail by the learned Special Court does not warrant any interference by the High Court in exercise of its appellate jurisdiction. 54. In the result and for the reasons discussed above, we find no merit in this appeal. The appeal shall accordingly stand dismissed. With the above observations and directions, this appeal shall stand disposed of. Appeal dismissed