Summary
The Court granted bail to Vernon Gonsalves and Arun Ferreira after nearly five years’ detention. Limited scrutiny of the prosecution materials did not establish the prima facie truth required to trigger the UAPA bail restriction. Possession of literature, weak third-party communications and unsubstantiated financial allegations did not supply the relevant statutory links. Findings were at the bail stage, with restrictive conditions imposed.
Issues
- What scrutiny Section 43D(5) required of the prosecution materials at bail stage.
- Whether the alleged acts met the charged terrorist-act, membership, support and funding provisions prima facie.
- How prolonged detention and constitutional liberty affected bail and its conditions.
Provisions considered
- Section 43D(5) and (6), Unlawful Activities (Prevention) Act, 1967The prima facie truth inquiry required limited analysis of probative worth and linkage to the charged offences, while avoiding final trial findings. (¶¶ 6, 9, 11, 15, 24, 35, 36, 38, 39, 40, 41, 42, 43)
- Sections 15, 16, 17, 18 and 18B, Unlawful Activities (Prevention) Act, 1967The materials did not prima facie link these appellants to the requisite terrorist acts, conspiracy, recruitment or funds for such acts. (¶¶ 11, 25, 26, 27, 28, 29)
- Sections 20, 38 and 39, Unlawful Activities (Prevention) Act, 1967The Court examined proof of membership and the necessary intent to further terrorist activities, rather than treating alleged association or seminar participation as sufficient. (¶¶ 11, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38)
- Section 40, Unlawful Activities (Prevention) Act, 1967The account statement lacked sufficient support at this stage to justify the bail bar on a terrorist-funding allegation. (¶¶ 11, 21, 27, 28, 39)
- Section 13, Unlawful Activities (Prevention) Act, 1967The general bail assessment, rather than the Chapter IV/VI restriction, governed this additional charge. (¶¶ 6, 9, 11, 41, 43)
- Articles 14 and 21, Constitution of IndiaStatutory restrictions did not remove constitutional scrutiny of prolonged detention, particularly where the relied-on materials had low prima facie probative worth. (¶¶ 6, 41, 42, 43)
Held
- Watali did not eliminate scrutiny of whether the accusation was prima facie true. Some limited analysis of the materials’ probative worth and correspondence with statutory ingredients was necessary; merely invoking serious offences could not sustain detention. Earlier observations in Romila Thapar did not replace an independent assessment of these bail applications. (¶¶ 5, 9, 15, 35, 36, 40, 43)
- The cited letters consisted of third-party accounts recovered from co-accused and did not attribute the necessary terrorist acts to these appellants. Mere possession of literature propagating violence or participation in seminars did not by itself establish the charged Chapter IV/VI offences. The identified recruitment and conspiracy allegations lacked the supporting links needed at this stage. (¶¶ 17, 18, 19, 20, 22, 24, 26, 29, 36, 37, 38)
- The membership material concerned an earlier period before the organisation was scheduled and did not establish continuing membership thereafter. The alleged link between IAPL and the banned organisation was not reliably demonstrated. The Court required prima facie proof of the relevant intent to further terrorist activities under Sections 38 and 39. (¶¶ 30, 31, 32, 33, 34, 38)
- The financial references did not adequately establish actual transmission of money by or to the appellant identified, or the necessary terrorist purpose. The available documents mainly concerned litigation expenses and lacked corroboration sufficient to invoke the bail-restricting provisions. (¶¶ 21, 24, 27, 28, 39)
- Nearly five years’ detention, the character of the material and ordinary bail considerations justified release. Constitutional courts retained power to protect liberty notwithstanding the statutory restriction. The Court noted the prior conviction and pending case concerning Vernon and addressed risks through conditions. (¶¶ 6, 41, 42, 43, 44, 45)
- Conditions included remaining in Maharashtra absent trial-court permission, passport surrender, residence and single-phone disclosure, continuous phone accessibility and the specified location arrangement, and weekly police reporting. Breach or interference with witnesses could support a cancellation application before the trial court. (¶¶ 45, 46)
Result
Appeals allowed; bail refusals set aside and both appellants directed to be released on Special Court terms incorporating the specified safeguards, unless wanted in another case. Cancellation remained available for breach or witness interference.