Summary
Government servants in Nagaland who paid money to a banned organisation under threat were charged under Sections 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 and granted bail by the NIA Special Court, which found no prima facie material that they were sympathisers or voluntary contributors; the Gauhati High Court cancelled bail because the Special Judge had himself recorded that an offence was committed. The Supreme Court restored bail: offences under Sections 39 and 40 require intention to further the activities of a terrorist organisation, the Special Judge rightly distinguished extortionists from those compelled to pay, his prima facie opinion under Section 43D(5) was neither perverse nor impossible, and an appellate court should interfere with a grant of bail only where the trial court's view is perverse or impossible.
Issues
- Whether persons who paid money to a terrorist organisation under compulsion can be denied bail under Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 on the footing that the accusation under Sections 39 and 40 is prima facie true.
- On what grounds an appellate court may reverse a Special Court's order granting bail.
Provisions considered
- Sections 39 and 40, Unlawful Activities (Prevention) Act, 1967Support to or raising funds for a terrorist organisation is an offence only when done with the intention of furthering its activities, as held in Thwaha Fasal; a prima facie satisfaction of such intention is required even at the bail stage. (¶¶ 7, 17, 18)
- Section 43D(5), Unlawful Activities (Prevention) Act, 1967Bail is barred only if, after hearing the public prosecutor, the court finds reasonable grounds for believing the accusation prima facie true, a lower threshold than 'not guilty' under TADA, MCOCA or NDPS; the Special Judge's finding that no prima facie true case was shown was a possible view. (¶¶ 9, 13, 14, 15, 19)
Held
- The prosecution's own case was that the office bearers of the organisation were extorting money from government servants; the Special Judge rightly differentiated those who extort of their own volition from those coerced to pay, found no material that the appellants were sympathisers or voluntary contributors, and noted the agency's admission that they were cooperating. Sections 39 and 40 require intention to further the organisation's activities, and the Special Judge's prima facie opinion cannot be called perverse or impossible. (¶¶ 11, 17, 18, 19)
- Since the appellants admit payment and contend only that it was coerced, custodial interrogation is not warranted; the Court declined to discuss the evidence in detail so as not to prejudice the trial. (¶¶ 15, 16)
- An appellate court should interfere with an order granting liberty to a citizen only where the view of the trial court is perverse or impossible; the High Court's reversal was not justified on that limited ground. (¶ 20)
Result
Appeals allowed; Gauhati High Court orders dated 8 May 2018 and 3 September 2018 cancelling bail quashed and set aside, restoring the Special Court's orders granting bail; observations not to be construed as an expression on merits; pending applications disposed of.