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2020 DIGILAW 425 (CHH)

Varun Jain v. State Of Chhattisgarh

2020-06-29

ARVIND SINGH CHANDEL

body2020
JUDGMENT Arvind Singh Chandel, J. - The instant is first application of the Applicant for grant of anticipatory bail. He is apprehending his arrest in connection with Crime No.9 of 2020 registered at Police Station Siksod, District Kanker for offence punishable under Sections 10, 13, 17, 38(1) & (2), 40 of the Unlawful Activities (Prevention) Act, 1967, Section 8(2)(3)(5) of the Chhattisgarh Vishesh Jan Suraksha Adhiniyam and Section 120B of the Indian Penal Code. 2. According to the case of the prosecution, on 24.3.2020, on the basis of a secret information, police officials searched a vehicle bearing registration No.CG 07 AH 6555, which was being driven by one Tapas Kumar Palit. In the search, 95 pairs of shoes, cloths of uniform, 2 bundles of electric wires each of 100 metres, 2 sets of walki-talki along with charger, LED Lence and other articles were found in possession of Tapas Kumar Palit. All the articles were seized from him. Allegedly, these articles were to be supplied by Tapas Kumar Palit to the naxalites in order to support their illegal and disruptive activities. On the information of Tapas Kumar Palit, one Daya Shankar Mishra has also been arrested. According to the further case of the prosecution, Tapas Kumar Palit was working with two other persons, namely, Komal Verma and Ajay Jain. Ajay Jain is the Director of Rudransh Earth Movers Road Construction Company. Allegedly, Komal Verma and Ajay Jain were also involved in supplying the aforesaid articles and they were providing funds as well to the naxalites. On 22.4.2020, both Komal Verma and Ajay Jain have been arrested. The Applicant herein is the Director of M/s Landmark Royal Engineering Private Limited, Rajnandgaon. Other co-accused Nishant Jain, brother of the present Applicant is the Director of M/s Landmark Engineering, Bilaspur. According to the further case of the prosecution, both M/s Landmark Royal Engineering Private Limited, Rajnandgaon and M/s Landmark Engineering, Bilaspur were undertaking various government contracts in the State of Chhattisgarh and both these companies had also obtained contract of construction of roads in the area of Bastar. It has been alleged that through a power of attorney, the said work of construction of roads was sub-let to Rudransh Earth Movers Road Construction Company owned by Ajay Jain. It has been alleged that through a power of attorney, the said work of construction of roads was sub-let to Rudransh Earth Movers Road Construction Company owned by Ajay Jain. According to the further case of the prosecution, Ajay Jain was carrying out the work of construction of roads on behalf of the present Applicant and his brother Nishant Jain and on the instructions of the present Applicant and his brother Nishant Jain and with their prior consent, Ajay Jain and other co-accused persons were providing funds and supplying articles to the naxalites. 3. Learned Senior Advocate appearing for the Applicant submitted that the Applicant is innocent and has been falsely implicated in the case without there being any material available against him on record. It was argued that in the First Information Report, name of the present Applicant is not mentioned. The Applicant has been implicated in the case only on the basis of statements of the co-accused persons recorded under Section 27 of the Indian Evidence Act, which is not a legal evidence. It was further submitted that the company of the present Applicant is a reputed company and had been obtaining various contracts from the Government of Chhattisgarh for the last 10 years. Ajay Jain was a neighbour of the present Applicant in Rajnandgaon and both acquainted with each other in the year 2013. On being requested by Ajay Jain, the present Applicant sub-let his work of construction of roads in Bastar area to Ajay Jain. The Applicant and his company have bona fide business transactions with Ajay Jain and the Applicant was not aware of any of illegal or criminal activities of Ajay Jain or other co-accused persons. The entire transactions between the Applicant and Ajay Jain are lawful and open. The work was awarded to Ajay Jain and proper bills were raised by Ajay Jain and after due verification of the work executed on the site payments were made by the government to the Applicant''s company. The Applicant had been bona fidely and genuinely doing business with Ajay Jain. The Applicant neither made available any fund to Ajay Jain nor did he give his consent to Ajay Jain for providing any fund to naxalites. The Applicant had been bona fidely and genuinely doing business with Ajay Jain. The Applicant neither made available any fund to Ajay Jain nor did he give his consent to Ajay Jain for providing any fund to naxalites. Relying upon the judgment passed by the Supreme Court in ( National Investigating Agency v. Jahur Ahmed Shah, (2019) 5 SCC 1 ) and the judgment passed by this Court in Criminal Appeal No.1213 of 2019 (Abhay Naik v. State of Chhattisgarh), it was further argued that no prima facie case is made out against the present Applicant. The bar contained in Section 43D(4) of the Unlawful Activities (Prevention) Act, 1967 is not applicable to the present case. Hence, it was prayed that the Applicant may be extended the benefit of anticipatory bail. 4. Learned Counsel appearing for the State opposed the bail application. It was submitted that there is sufficient material available on record on the basis of which involvement of the present Applicant is prima facie established. Referring to the statements of co-accused persons Ajay Jain, Mukesh Salam, Rajendra Salam, Arun Thakur and Tapas Kumar Palit recorded under Section 27 of the Indian Evidence Act, it was submitted that as disclosed by these co-accused persons, it reveals that the present Applicant had sub-let his work to co-accused Ajay Jain. Ajay Jain was engaged in carrying out the work of construction of roads in naxalite areas. For smooth functioning of their work, Ajay Jain and other co-accused persons were providing funds and articles to the naxalites. It was further submitted that the said co-accused persons have also disclosed the fact that whatever funding was being done and articles were being supplied to the naxalites, a prior consent therefor was being obtained from the present Applicant and as directed by the present Applicant the funds and articles were being provided to the naxalites. Further referring to the power of attorney executed by the present Applicant in favour of Ajay Jain, it was submitted that according to the power of attorney, Ajay Jain was permitted to execute work only. All the financial transactions were being done by the present Applicant himself. Thus, it reveals that whatever fund was being provided and articles were being supplied to the naxalites, the present Applicant was getting so done through Ajay Jain. All the financial transactions were being done by the present Applicant himself. Thus, it reveals that whatever fund was being provided and articles were being supplied to the naxalites, the present Applicant was getting so done through Ajay Jain. Further referring to the statement of co-accused Hitesh Agrawal, it was submitted that Hitesh Agrawal has also disclosed the fact that with the consent and permission of the present Applicant and his brother Nishant Jain, he (Hitesh Agrawal) had provided walki-talki sets to Ajay Jain. It was further submitted that on the above mentioned facts disclosed by the co-accused persons, further investigation in the matter is still left. It was submitted that it is to be investigated that what further link of the present Applicant was existing with the naxalites and other co-accused persons. After registration of the offence, the present Applicant has absconded. He was in possession of 2 mobile phones and both the phones are switched off. Seizure of the said 2 mobile phones is essential. Through the said 2 mobile phones, link of the Applicant with naxalites and other co-accused persons would be revealed. Therefore, custodial interrogation of the Applicant is necessary. Referring to the judgment passed by the Supreme Court in ( State of Andhra Pradesh v. Bimal Krishna Kundu, (1997) AIR SC 3589) and the judgment passed by a Single Bench of High Court of Judicature at Bombay, Nagpur Bench in Criminal Appeal (ABA) No.385 of 2013 (Bandopant S/o Shankarrao Mallewar v. State of Maharashtra), it was submitted that since sufficient material is available against the Applicant, looking to the bar contained in Section 43D(4) of the Unlawful Activities (Prevention) Act, 1967, the anticipatory bail application is not maintainable and deserves to be dismissed. 5. I have heard Learned Counsel appearing for the parties and perused the entire case diary minutely. I have also gone through the statements of co-accused persons Ajay Jain, Mukesh Salam, Rajendra Salam, Arun Thakur and Tapas Kumar Palit recorded under Section 27 of the Indian Evidence Act and the power of attorney executed by the present Applicant in favour of co-accused Ajay Jain. I have also gone through the statements of co-accused persons Ajay Jain, Mukesh Salam, Rajendra Salam, Arun Thakur and Tapas Kumar Palit recorded under Section 27 of the Indian Evidence Act and the power of attorney executed by the present Applicant in favour of co-accused Ajay Jain. Taking into consideration the facts disclosed by the co-accused persons and other material available on record and also keeping in view the fact that further investigation is pending on the facts disclosed by the co-accused persons against the Applicant, I am of the opinion that it cannot be said that no prima facie case is made out against the Applicant. Therefore, as per the bar contained in Section 43D(4) of the Unlawful Activities (Prevention) Act, 1967, the application for grant of anticipatory bail to the Applicant is not maintainable. It deserves to be and is hereby dismissed.