IMPORTANT POINT
Cancellation of bail – Interference by Appellate Court and particularly in a matter when liberty granted to a citizen was being taken away would be warranted only in the event view taken by Trial Court was either perverse or impossible.

JUDGMENT :

B.R. Gavai, J.

1. The Criminal Appeal Nos.415-417 of 2019 and Criminal Appeal Nos.418 of 2019 challenge the judgments and orders dated 8th May 2018 and 3rd September 2018 respectively, passed by the learned Division Bench of the Gauhati High Court, vide which the bail granted to the appellants herein came to be cancelled.

2. The appellants, in Criminal Appeal Nos.415-417 of 2019, came to be arrested on 13th October 2017, whereas the appellant, in Criminal Appeal Nos.418 of 2019, came to be arrested on 25th March 2018.

3. The appellants in Criminal Appeal Nos.415-417 of 2019 and Criminal Appeal Nos.418 of 2019, moved the learned Special Court, National Investigating Agency, Nagaland, Deemapur (hereinafter referred to as ‘the NIA’), for grant of bail. Vide orders dated 17th October 2017 and 28th March 2018 respectively, the said applications came to be allowed.

4. Being aggrieved thereby, the NIA filed appeals before the Guwahati High Court. The Division Bench, vide the impugned orders, allowed the appeals and reversed the orders dated 17th October 2017 and 28th March 2018.

5. While issuing notice, vide orders dated 28th May 2018 and 20th September 2018, this Court also stayed the judgments and orders passed by the Division Bench of the Guwahati High Court.

6. We have heard Shri R. Basant, learned Senior Counsel for the appellants and Smt. V. Mohana, learned Senior Counsel appearing for the respondent/NIA.

7. Shri Basant submits that the learned Special Judge, after finding that the act of the appellants of succumbing to the demands of the organization was not voluntary and that the investigating agency itself had admitted that the accused persons were voluntarily cooperating with the investigation, had granted bail. He submits that, in these circumstances, it was not appropriate on the part of the High Court to have interfered with the orders of the learned Special Judge and deprived the appellants herein of their liberty. He further submits that this Court in the case of Thwaha Fasal v. Union of India, 2021 SCC OnLine SC 1000, has held that even at the stage of grant of bail, the prosecution has to prima facie establish that there was mens rea for committing the crime punishable under Sections 39 and 40 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to the “said Act”). He further submitted that even though the appellants were arrested and subsequently released, their services are not suspended and they are still continuing in their respective jobs.

8. Smt. V. Mohana submits that the learned Division Bench of the High Court has rightly reversed the orders of grant of bail. She submits that the appellants themselves have admitted that they have paid the money to the organization. She further submits that, from the documents which were submitted with the supplementary charge-sheet, it is clear that the receipts are signed in the hand writings of the appellants. She, therefore, submits that there is a prima facie material to connect the present appellants with the crime in question.

9. Smt. Mohana further relies on the provisions of subsection (5) of Section 43D of the said Act to buttress the submission that since the prima facie case is made out, the appellants were not entitled to bail and as such, the High Court has rightly reversed the orders.

10. It will be relevant to refer to the following observation of the learned Special Judge, while granting them bail:-

“I have considered this peculiar position which has a marked difference between the extortionist and the tax payers who are under constraint. It is also in all correctness by the learned Special PP, NIA to argue that the petitioners should take recourse to protection of the law enforcing agencies. However, in my considered view the position of the accused who are compelled to pay tax are precarious and there is no doubt that the law enforcing agencies may not always be there for their protection and penalty for violation which always looms is em