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2006 Supreme(SC) 314
2006(8) Supreme 673
SUPREME COURT OF INDIA
B.P. Singh and Altamas Kabir, JJ.
Kirtibhai Madhavlal Joshi - Appellant
versus
State of Gujarat - Respondent
Criminal Appeal No. 384 of 2006
(Arising out of SLP (Crl.) No. 5649 of 2005)
With
Criminal Appeal Nos. 355, 386 of 2005
(Arising out of SLP (Crl.) No. 5809 of 2005)
With
SLP (Crl.) No. 1357 of 2006
Decided on 4-4-2006
IMPORTANT POINT
After expiry of period of one year from date of detention of accused for offence under Prevention of Terrorism Act, accused could be released on bail under ordinary law without applying rigour of Section 49(7) of the Act.
Headnote:Prevention of Terrorism Act, 2002 - Sections 3(3) and 22(2) and 49 - Appellants-accused charge-sheeted for offences u/s 3(3) and 22(2) of the Act - They were alleged to have received huge amounts from Dubai through hawala transactions with knowledge that money was being used for terrorist activities - Prosecution case was greatly dependent on confessions recorded in the case - Bail application - Review Committee by its order dated 5.7.2004 while reviewing the case came to conclusion that there was no sufficient material to support charge u/s 3(3) of the Act - Second Review Committee constituted by Central Government by its report dated 21.5.2005 found adverse to appellants - After expiry of one year period from date of detention of accused for offence under the Act, provisions of sub-section (6) of Section 49 of the Act shall apply and accused could be released on bail under ordinary law without applying rigour of Section 49(7) of the Act - Appellants who were in custody for more than one year, found entitled to bail.
Held : The case of the prosecution is greatly dependent upon the confessions recorded in the case. The three appellants before us are the accused whose confessions have been recorded under the Act. It is the case of the prosecution that on the basis of those confessions their complicity in the offence is apparent. Reliance has also been placed on other materials placed before us which include confessions made by other accused who are said to be directly involved with the terrorist activities.(Para 5)
We have also perused the provisions of Section 49 of the Act. Sub-section (7) of Section 49 provides that where the Public Prosecutor opposes the application of the accused for release on bail, no person accused of an offence punishable under this Act or any rule made thereunder shall be released on bail until the court is satisfied that there are grounds for believing that he is not guilty of committing the said offence. However, the proviso, as interpreted by this Court in People’s Union for Civil Liberties v. Union of India, (2004) 9 SCC 580 : 2005 SCC (Cri) 1905 provides that after the expiry of a period of one year from the date of detention of the accused for an offence under this Act, the provisions of sub-section (6) shall apply, which means that after the expiry of one year of detention, the accused can be released on bail under ordinary law without applying the rigour of Section 49(7) of the Act.
10. The appellants Kirtibhai Madhavlal Joshi and Prahlad Prabhudas Patel was taken into custody on 5.11.2003, while the appellant Mahesh Narsinhdas Patel was taken into custody on 1.2.2004.
11. We have also noticed the provisions of sub-section (9) of Section 49 which authorise the court to grant bail in exceptional circumstances enumerated therein, but for reasons to be recorded in writing. There is no such requirement under sub-section (7) of Section (7) of Section 49 of the Act.
12. Having considered the confessions of the three appellants before us and the reports of the Review Committee as also the material placed before us, and after hearing counsel for the parties a length and having applied our mind to the provisions of Section 49 of the Act, we are satisfied that a case is made out for the grant of bail to the appellants herein.(Paras 9 to 12)
ORDER
SLP (Crl.) Nos. 5649, 5809 and 5857 of 2005
1. Special leave granted.
2. We have heard counsel for the parties at length and have been taken through all the material that has been placed before us.
3. These appeals are preferred against the judgment and order of the High Court of Judicature of Gujarat at Ahmedabad in Criminal Appeals Nos. 1353, 501 and 1208 of 2004. The three appellants before us are : Kirtibhai Madhavlal Joshi, Prahalad Prabhudas Patel and Mahesh Narsinhdas Patel. While Kirtibhai Madhavlal Joshi and Mahesh Narsinhdas Patel are partners of the firm Patel Online Services carrying on business at Mumbai, Prahalad Prabhudas Patel is an employee of the said firm posted at Ahmedabad. They have all been charged of committing the offences under Sections 3(3) and 22(2) of the Prevention of Terrorism Act, 2002 (in short “the Act”) apart from some other offences under the Penal Code.
4. The case of the prosecution is that the firm Patel Online Services has been receiving huge amounts from Dubai through hawala transactions and with full knowledge of the fact that the money received by them and handed over to the recipients is being used for terrorist activities. It is, therefore, alleged that they have abetted or knowingly facilitated the commission of terrorist acts or acts preparatory to a terrorist act and therefore punishable under Section 3(3) of the Act. Further, it is alleged that the said firm Patel Online Services received large amounts of money which was utilised for the purposes of terrorism within India. We may notice at this stage that the Review Committee while reviewing the case by its order dated 5.7.2004 came to the conclusion that there was no sufficient material to support the charge under Section 3(3) of the Act. However, we are informed that the Court has framed charges under Section 3(3) of the Act as well.
5. The case of the prosecution is greatly dependent upon the confessions recorded in the case. The three appellants before us are the accused whose confessions have been recorded under the Act. It is the case of the prosecution that on the basis of those confessions their complicity in the offence is apparent. Reliance has also been placed on other materials placed before us which include confessions made by other accused who are said to be directly involved with the terrorist activities.
6. The case of the prosecution is that the confession of a co-accused can be used against the accused in view of the provisions of the Act. It is further submitted before us that though in any of the confessions there is no reference to any terrorist activity, yet from a perusal of the confessions one can make out that the appellants had knowledge of the fact that the amount received in a clandestine manner through hawala transactions was being used for illegal purposes.
7. It appears that there was a second Review Committee constituted by the Central Government which reviewed the cases of the appellants and submitted its report on 21.5.2005. The report was adverse to the interest of the appellants and it was found by the second Review Committee that charger under Section 3(3) as well as Section 22(2) of the Act could be framed against the appellant.
8. From the material placed before us the defence of the appellants appears to be that apart from the involuntary and unreliable nature of the confessions, they may at best prove that amounts were received by their firm through hawala transactions. None of the partners or the employees had any idea as to the end use of the amount received. In normal course, in such transactions secrecy is maintained and, therefore, the mere fact that secrecy was maintained would not give rise to a presumption that the partners/appellants knew that the amounts being paid to one of the co-accused Mohd. Kasim, were being used for terrorist activities. It was further submitted that the report of the second Review Committee is wholly without jurisdiction since the Act was repealed on 21.12.2
