Mrityunjay Kumar Singh @ Mrityunjay @ Sonu Singh V. Union of India through the National Investigation Agency, Ranchi

Cr.A(DB)/380/2021

AI Insights

The case revolves around the appellant, Mrityunjay Kumar Singh, who was accused of being involved with the CPI (Maoist), a banned terrorist organization, and facilitating terror funding through extortion payments. The National Investigation Agency (NIA) took over the investigation from the local police, leading to a supplementary charge-sheet against the appellant and others for various offenses under the Indian Penal Code, Arms Act, and the Unlawful Activities (Prevention) Act. The appellant's defense argued that he was a victim of extortion by the Maoists, which he had to comply with to ensure the smooth operation of his construction business. The prosecution contended that the appellant was actively involved in supporting the terrorist organization by channeling funds and was thus complicit in terror activities.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 820019 (HC-RANCHI)
• Appeal Type: Others
• Pronouncement Date: 30-01-2023
• Assessment Year: misc
• Other Referred Cases: Sudesh Kedia Vs. Union of India, Amit Agarwal @ Sonu Agarwal Vs. Union of India through NIA
• Laws Referred To: National Investigating Agency Act, 2008, Unlawful Activity (Prevention) Act, 1967, Arms Act, Indian Penal Code
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: AMIT DAS
• Assessee Lawyers: INDRAJIT SINHA
• Keywords: Bail rejection; Bail rejection; Extortion; Levy; Terrorist organization; Terror funding; NIA investigation
• Section: 13; 27; 6; 10; 8; 17; 18; 25; 39; 35; 40; 43-D(5)

Judgement Text

" Criminal Appeal (D.B.) No. 380 of 2021 Against the judgment dated order dated 18.11.2021 passed by Shri Madhuresh Kumar Verma, learned A.J.C. XVI cum Special Judge, NIA, Ranchi in connection with Special (NIA) Case No. 2 of 2020. --- Mrityunjay Kumar Singh @ Mrityunjay @ Sonu Singh … … Appellant Versus Union of India through the National Investigation Agency, Ranchi … … Respondent --- For the Appellant : Mr. Indrajit Sinha, Advocate For the Respondent : Mr. Amit Kumar Das, Special P. P. --- Present: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE RAJESH KUMAR --- 30.01.2023 Heard Mr. Indrajit Sinha, learned counsel for the appellant and Mr. A. K. Das, learned Special P. P. for the NIA. 2. This appeal is directed against the order dated 18.11.2021 passed by Shri Madhuresh Kumar Verma, learned A.J.C. XVI cum Special Judge, NIA, Ranchi in connection with Special (NIA) Case No. 2 of 2020 corresponding to R. C. No. 25 of 2020/NIA/DLI arising out of Chandwa P. S. Case No. 158 of 2019 whereby and whereunder the prayer for bail of the appellant has been rejected. 3. The prosecution case is that on 22.11.2019 at 8:00 P.M., a patrolling party of Chandwa Police Station in course of patrolling duty stopped at Lukuiya More at Chandwa. It has been alleged that the cadre of banned terrorist organization i.e. CPI (Maoist) which were waiting in advance, fired indiscriminately at the police patrolling party which led to the death of 4 police personnel. Arms and ammunitions were also looted from the martyred police personnel and by raising slogans, the Maoists fled away. Later on, one of the Home Guard namely, Dinesh Ram who had escaped unhurt, rushed to the Chandwa Police Station and lodged a complaint. -2- 4. Based on the aforesaid allegations, Chandwa P. S. Case No. 158 of 2019 was instituted against 18 named and some unknown accused persons. On completion of investigation, charge-sheet was submitted against Baijnath Ganjhu, Sunil Ganjhu @ Mangra, Rajesh Kumar Ganjhu, Sanjay Ganjhu, Naresh Ganjhu and Faguna Ganjhu. The Central Government in exercise of its power conferred under Sub-section (5) of Section 6 read with Section 8 of the National Investigating Agency Act, 2008 vide M.H.A. New Delhi, CTCR Division Order no. 11011/42/2020/NIA dated 22.06.2020 directed the NIA to take up the investigation and accordingly, Chandwa P. S. Case No. 158 of 2019 was re-registered as R. C. No. 25 of 2020/NIA/DLI under Sections 147, 148, 149, 452, 302, 353 & 379 of Indian Penal Code, under Section 27 of the Arms Act, under Section 17 (i) & (ii) of Criminal Law Amendment Act and under Sections 10, 13, 17 and 18 of Unlawful Activity (Prevention) Act, 1967. The NIA had submitted the first supplementary charge-sheet against 34 persons including the appellant for the offences punishable under Sections 120 (B), 121, 121 (A), 122, 147, 148, 149, 302, 307, 353, 395, 396 & 427 of Indian Penal Code, under Sections 10, 13, 16, 17, 18, 20, 21, 38, 39 & 40 of Unlawful Activities (Prevention) Act, 1967 and under Sections 25 (1-b) a, 26, 27 & 35 of the Arms Act. 5. Mr. Indrajit Sinha, learned counsel for the appellant while referring to Sections 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as ‘UAP Act’, for the sake of brevity) has submitted that the said penal provisions are built upon the word ‘intention’, but the evidence against the appellant does indicate that there was no ‘intention’ on the part of the appellant to further the activities of the terrorist organization. It has been submitted that the appellant is a partner in M/s. Santosh Construction, a firm registered with the road construction department since the year 2012. Mr. Sinha, learned counsel has submitted that the allegations against the appellants do not constitute a terrorist act, rather the appellant was himself a victim of the terrorist organization having to cough up levy as and when demanded in order to ensure smooth running of his business. So far as the recovery of Rs. 2.64 crores of cash from the house of the appellant is -3- concerned, the same was not derived or obtained as a consequence to a terrorist act, but was related to the business concern of the appellant. The appellant has borne the brunt of terrorist act as on several occasions, the vehicles and equipments of the firm of the appellant have been burnt or damaged by the cadres of the terrorist organization for which the appellant had also instituted several cases. Mr. Sinha, has referred to the evidences of P.W. 60 and P.W. 123 in which they have denied that the appellant had ever taken loan from them, though the appellant has given a suitable explanation with respect to the recovery of Rs. 2.64 crores from his house. It has been submitted that Protected witnesses – A, B, D, F, G, H, I & J in their statements under Section 161 Cr.P.C. have not named the appellant and even though, the appellant has been named in the statements of Protected witnesses – C, E, X & Y, but the same does not attribute the involvement of the appellant in a terrorist act. In their statement under Section 164 Cr.P.C., the Protected witnesses – A, B, D, F & G have not taken the name of the appellant. Mr. Sinha, has read out the statement of Protected witness – H from which it appears that threat was given to the appellant for making payment of levy. It has been submitted that levy has to be paid to the terrorist organization, if any person is to work in that area. He has submitted that the terrorists used to come and threaten the employees of the appellant and if at all the appellant was involved, such exigencies on the part of the terrorists would not have arisen. Mr. Sinha has also referred to Paragraph 17.11.8 and 17.11.9 of the first supplementary charge-sheet which reveals that the primary aim of Maoists have shifted to collection of money through extortion from mining companies and contractors involved in government development work. He has submitted that the entire gamut of the case revolves around extortion demanded and collected from the appellant which cannot be considered to be a terrorist act. In support of his contention that the appellant himself has been at the receiving end of the demand of levy from the Maoists organization and thus is a victim, Mr. Sinha has put reliance upon the case of “Sudesh Kedia Vs. Union of India” reported in (2021) 4 SCC 704. 6. Mr. A. K. Das, learned Special P. P. has submitted that the direct involvement of the appellant in terror funding has come to light in -4- course of investigation conducted by the NIA. It has been submitted that all the contractors have not been made accused and in fact some have been arrayed as witnesses, which demolishes the contention of the appellant that he is a victim of the demands of levy made by the members of the terrorist organization. Referring to Paragraph 17.15.1 of the first supplementary charge-sheet, Mr. Das has submitted that the same shows the complicity of the appellant in terror funding. It has been submitted that the appellant was instrumental in channelising the illegal money of the terror outfit from one account of the firm to several accounts of other persons thereby creating multiple sources to hide the original source of money. The persons who were inducted as partners and were shown to have invested a huge amount of money does not have the resources to make such investment. Mr. Das has referred to the statements under Section 164 Cr.P.C. of Protected witnesses – E & Y which highlights the closeness which had developed between MCC Area Commander – Ravindra Ganjhu and the appellant. P.W. 4 in his statement recorded under Section 164 Cr.P.C. has stated that three persons were apprehended with cash of Rs. Five lacs and a letter was recovered from the bag of Baijnath Ganjhu addressed to the appellant demanding Rs. Five lacs as levy. Mr. Das has therefore, submitted that the role of the appellant having been clearly defined as being involved in terrorist activities making out a prima-facie case against the appellant in the teeth of Section 43-D (5)of UAP Act, no interference is necessitated in the impugned order dated 18.11.2021. 7. In reply, Mr. Indrajit Sinha, learned counsel for the appellant has submitted that in the charge-sheet, the appellant has been alleged to have kept proceeds of terrorism, but in the counter affidavit, the case seems to have been developed. He further submits that none of the witnesses have stated that the levy collected was kept by the appellant. Mr. Sinha has referred to Section 25 (2) of UAP Act while submitting that the seizure has taken place on 10.10.2020 while the order of attachment is after one and half years i.e. of 24.08.2022. He has also submitted that presumption of guilt has to be based on legal grounds. 8. We have heard the learned counsels for the respective sides -5- and have also perused the various affidavits as well as the compilations submitted at the bar. 9. The appellant in the first supplementary charge-sheet has been arrayed as A-8. Before embarking on the role and activities of the appellant, we would touch upon the activities of the Maoists in the State of Jharkhand as enunciated at Paragraphs 17.11.8 and 17.11.9 of the first supplementary charge-sheet. It is said that the Maoists have degenerated into organized criminal groups whose main aims are abduction and extortion in and around coal mines and also contractors involved in government development works. The Maoists have set-up efficient administration to collect taxes in rural areas and have been extorting vast amounts of money from local branches of mining companies, contractors and other business persons. In short, the contractors and mining companies were and have been subjected to demands of levy by way of extortion by the Maoists. In his statement recorded before the NIA, Baijnath Ganjhu (A-1) has stated that he had seen the appellant giving money to Ravindra Ganjhu (A-14). He has also stated that A-14 had given him a levy demanding letter of Rs. Five lacs in the name of the appellant and on 02.01.2020, the appellant had given Rs. Five lacs to A-1 which was thereafter handed over to A-14. The appellant on his examination by the NIA has revealed the various instances when he had given levy as demanded to A-14. An amount of Rs. 2,64,42,000/- was recovered from the house of the appellant and the findings with respect to the same has been enumerated at Paragraph 17.15.1 in the first supplementary charge-sheet which reads as follows: 17.15.1: On 10.10.2020, during search at the house premise of accused Mrityunjay Kumar Singh @ Mrityunjay Kumar @ Sonu Singh (A-8), unaccounted cash amounting to Rs. 2,64,42,000/- (Rs. two crore sixty four lakh and forty two thousands only) was recovered: During course of investigation, it is revealed that Sonu Singh @ Mrityunjay Kumar (A-8) is one of the 07 partners of M/s Santosh Construction (a registered firm at RCD, Ranchi, Jharkhand). On being asked about the source of money, recovered from his house, A-8 stated that the money was income from the vehicles pertaining to M/s Santosh Construction, Santosh Kumar Singh (father of A-8) and A-8 had withdrawn from the bank accounts of M/s Santosh Construction and some of the money were taken as loan from their family members and business entities. -6- On being asked about the breakup of seized Rs.2.64 crore, he further stated that Rs. 1.68 Crores was withdrawn from the bank accounts of M/s Santosh Construction from 01.04.2020 to 09.10.2020, Rs. 20 lakhs were earned from the vehicles pertaining to M/s Santosh Construction from May 2020 to 09 Oct. 2020, Rs. 10,80,000/- was earned from the vehicles pertaining to A-8 and Santosh Kumar Singh. Mrityunjay Kumar @ Sonu Singh (A-8) further stated that Rs. 67 lakhs were taken, on credit, from various persons by him & his father, Santosh Kumar Singh, between the period April 2020 to Oct. 2020 (a list of 18 persons was given by A-8 from whom he had taken money as loan/credit) an Rs. 75,00,000/- was closing balance (Cash in hand) as on 31.03.2020. M/s Santosh Construction also has one stone mining in Loharasi village (taken on lease from Jharkhand Government) and one crusher machine under PS Chandwa and supplies materials i.e. stone/chips/dust to the parties engaged in construction work as per their demand and also uses the material for their own construction works. During examination of the 17 persons, from whom A-8 and Santosh Kumar Singh had taken loan, 14 persons stated that they gave money as loan/credit. On being asked as why they had given money in cash and not through cheque, they could not give satisfactory answer. One Wachaspati Sharma (accountant of M/s Santosh Construction), has denied that he has given cash, i.e. Rs. 1,95,000 as loan to either Santosh Kumar Singh or A-8. Another person namely Yogendra Kumar Singh (father-in-law of Manish Kumar, S/o Santosh Kumar Singh) stated that A-8 had neither asked for any loan nor he has given any loan. However, he gave Rs. 1,98,000/- to his daughter namely Priya Singh w/o Manish Kumar. another by name Bhola Khan, petty contractor, has denied that he has given cash, i.e. Rs. 1,92,000, as loan either to Santosh Kumar Singh or A-8. During analysis of the Income Tax Returns and capital account of M/s Santosh Construction and its partners, it has emerged that Rs. 1.15 crores were infused in the account of M/s Santosh Construction as capital of Akhilesh Kumar Singh, Amresh Kumar Singh and Lal Bipin Nath Sahdev (all are partners of M/s Santosh Construction, in the Assessment year 2019-20 and Rs. 3.32 crores were infused in the account of the firm as capitals of the partners in the assessment year 2018-19. It is also surfaced that huge amount was shown as expenses under the head of subcontractors. On examination of the sub-contractors namely Wachaspati Sharma, Birendra Yadav, Wasim Ansari, Vijay lakhsmi, they have denied that they had ever worked as sub- contractors and were not paid any money. Only one sub- contractor namely Anagh Sinha, has accepted that he worked as a sub-contractor. Investigation has revealed that Amresh Kumar Singh has 5% share in M/s Santosh Construction. He infused capital of Rs. 94,80,500/- in the account of the fir from the AY 2018-19 to 2019- 20. On the analysis of the individual ITRs of Amresh Kumar Singh, it is revealed that the gross total income of Amresh Singh is about Rs. 33 lacs from the assessment year 2018-19 to 2019-20. It is also revealed that most of the income of Amresh Singh comes -7- from M/s Santosh Construction. On being asked about the capital infusion in M/s Santosh Construction, he could not give satisfactory answer. During investigation, it is surfaced that Akhilesh Kumar Singh has 10% share in partnership of M/s Santosh Construction. He infused capital of Rs. 1.17 crores in the account of the company from the AY 2018-19 to 2019-20. On the analysis of the individual ITRs of Akhilesh Kumar Singh, it is surfaced that his gross total income is Rs. 35 lacs from the assessment year 2018-19 to 2019-20. It is also revealed that most of income of Akhilesh Kr Singh comes from M/s Santosh Construction. On asked about the money infused in M/s Santosh Construction, he could not give satisfactory answer. Lal Bipin Nath Sahdev, one of the partners of M/s Santosh Construction has 5% share in the firm. He infused Rs. 93 lacs in the account of the firm from the AY 2018-19 to 2019-20. On the analysis of the individual ITRs of Lal Bipin Nath Sahdev, it is surfaced that his gross total income is Rs. 35 lacs from the assessment year 2018-19 to 2019-20. It is also revealed that most of income of Lal Bipin Nath Sahdev, comes from M/s Santosh Construction. On asking about the capital infused in Santosh Construction, he could not give satisfactory answer. During investigation, it is also revealed that huge money was deposited in the bank accounts of M/s Santosh Construction and also in the bank accounts of its partners. It is pertinent to mention here that money was transferred from one bank account of the fir/partners to another bank account of firm/partners and several other accounts of various persons. Huge amount of money was also withdrawn from the bank accounts of firm and partners in cash. It is also important to mention here that repayments of the loan of the vehicle/home loan were paid in cash.” 10. The role of the appellant has been summed up in the following manner: “8. Investigation has established that A-8 is a local contractor and used to provide financial support to CPI (Maoist), a proscribed terrorist organization. A-8 was regular in touch with A-14 and on 20.11.2019; he received a letter from A-14, through Shivnath Yadav and Abul Ansari. On 21.11.2019, a day before the incident, he, along with Shivnath Yadav, Abul Ansari and Ravi Ranjan @ Pintu Singh, went to Beerjangha forest and met A-14 who demanded levy to tune of Rs. 20 lakhs from A-8. A-8 finally agreed to pay Rs. 12 lakhs as levy and assured A-14 for helping his wife in getting bail. Thereafter, A-8 paid 02 lakhs to A-14 and returned back. Therefore, as per averments made in pre-para, it is established that A-8 provided financial assistance to A-14, RCM of CPI (Maoist), a proscribed terrorist organization. A-8 paid levy to CPI (Maoist) which helped in strengthening the organization for waging war against government of India and threatening national security. Thereby, A-8 committed offences u/s 120B r/w 121, -8- 121A of Indian Penal Code, Sections 10, 13, 17, 18, 39 and 40 of the Unlawful Activities (Prevention) Act 1967, as amended 2019.” 11. The appellant is a partner in M/s. Santosh Construction which is primarily involved in road construction. The involvement of the appellant stems from the fact that he was instrumental in payment of levy to A-14 and was in contact with A-14 and recovery of an amount of Rs. 2,64,42,000/- was made from his house which acts have been construed to be terrorist acts for the reason of providing of terror funds to the organization. However, the role played by the appellant seems to suggest that he has been made a victim of extortion and has succumbed to such demands only to ensure the smooth running of his business. There is no allegation that the appellant was a part of the decision making process which led to the attack upon the patrolling party culminating in the death of four police personnel. The appellant was earning his livelihood by running his road construction business and if he failed to adhere to extortion demands, his business would have been adversely affected. In fact, as stated in the memo of appeal, several cases have been lodged against the Maoists by either the appellant or his staffs, for destruction of the properties of the firm, and of unlawful demands having been made. Most of the Protected witnesses in their statements under Section 164 Cr.P.C. have not taken the name of the appellant and whosoever has taken his name either in the statement under Section 164 Cr.P.C. or under Section 161 Cr.P.C. have not alleged any overt act against the appellant and merely because of a purported acquaintance with A-1 and A-14, the same would not lead to an accusation of “terrorist acts” against the appellant because such accusation was only with respect to demand and payment of levy. In this connection, we may refer to the case of “Sudesh Kedia Vs. Union of India” (supra), wherein it has been held as follows: 13. “While considering the grant of bail under Section 43-D(5), it is the bounden duty of the Court to apply its mind to examine the entire material on record for the purpose of satisfying itself, whether a prima facie case is made out against the accused or not. We have gone through the material on record and are satisfied that the appellant is entitled for bail and that the Special Court and the High Court erred in not granting bail to the appellant for the following reasons: ......... -9- 13.2. Another factor taken into account by the Special Court and the High Court relates to the allegation of the appellant meeting the members of the terror organisation. It has been held by the High Court that the appellant has been in constant touch with the other accused. The appellant has revealed in his statement recorded under Section 164 CrPC that he was summoned to meet A-14 and the other members of the organisation in connection with the payments made by him. Prima facie, we are not satisfied that a case of conspiracy has been made out at this stage only on the ground that the appellant met the members of the organisation.” 12. In the case of “Amit Agarwal @ Sonu Agarwal Vs. Union of India through NIA” in Criminal Appeal (DB) No. 214 of 2022 while referring to Sections 94 and 383 I.P.C., it has been held as follows: 14. “.......... We have referred to the above provisions to indicate that the act of the appellant was not voluntary, but was under threat and compulsion extended by TPC operatives only with a purpose to run the business unhindered. The appellant was promoting his business and there is no allegation that he had joined TPC and such circumstances cannot befell the appellant of being involved in terror funding. 15. We must point out at this juncture that the extortion and payment of levy was a fallout of the inaction of the State to provide adequate security measures and proper ambience for the business community which was engaged in various capacities to carry on trade and business in the affected areas. The various facets of the case indicate the interruptions, hardship and obstacles created by the TPC and only to ensure the smooth running of the business, such involuntary acts were entered into.” 13. As regards recovery of huge amount of money from the house of the appellant is concerned, the appellant has sought to give an explanation and we must also bear in mind that the appellant runs a road construction company and the infusion of capital into the business would not lead to a conclusion that terror funds were being channelised by the appellant. The appellant is in custody since 03.02.2021 and there is a remote possibility of the trial being concluded in the near future as 146 witnesses have been arrayed in the charge-sheet apart from a large number of documentary evidence. 14. As a sequel to the discussions made hereinbefore, we come to the conclusion that a prima-facie case under Section 43-D (5)of the UAP Act is not made out against the appellant and therefore, while setting aside the impugned order dated 18.11.2021 passed by Shri -10- Madhuresh Kumar Verma, learned A.J.C. XVI cum Special Judge, NIA, Ranchi in connection with Special (NIA) Case No. 2 of 2020, the appellant is directed to be released on bail on furnishing bail bond of Rs. 10,000/- (Ten Thousand) with two sureties of the like amount each, to the satisfaction of learned A.J.C. XVI cum NIA Special Judge, Ranchi in connection with Special (NIA) Case No. 2 of 2020 corresponding to R. C. No. 25 of 2020/NIA/DLI arising out of Chandwa P. S. Case No. 158 of 2019. 15. This appeal is allowed. (Rongon Mukhopadhyay, J.) (Rajesh Kumar, J.) Jharkhand High Court at Ranchi The 30th day of January, 2023 R.Shekhar/NAFR/Cp.3 "