Point of Law: Mere association with the terrorist organization is not sufficient to attract Section 38 of the UA(P) Act and mere support given for the terrorist organization is not sufficient to attract Section 39 of the UA(P) Act.

JUDGMENT :

N. KOTISWAR SINGH, J.

1. Heard Mr. R.K.D. Choudhury, learned Asstt. Solicitor General of India assisted by Ms. L. Devi, learned counsel appearing for the appellant-National Investigation Agency (NIA). Also heard Mr. S. Dutta, learned Senior Counsel assisted by Ms. A. Sangtam, learned counsel appearing for the respondent.

2. In this appeal, the appellant-NIA has challenged the order dated 09.02.2021 passed by the learned Special Judge, NIA, Dimapur, Nagaland in I.A. No. 332/2020 arising out of RC-02/2020/NIA-GUW by which the respondent had been granted bail on medical ground as the appellant had been stated to be suffering from Acute Lacunar Infarct with right sided hemiplegia and had been referred to outside the State for neurological consultation and further management on the basis of the report submitted by the Medical Board as per the direction of the Trial Court.

3. Mr. R.K.D. Choudhury, learned ASGI appearing for the appellant submits that if a person is charged under Section 17 of the UA(P) Act, 1967, bail cannot be granted only on the ground of medical condition, unless there is a finding by the Trial Court that accusation made against the accused is not prima-facie true. Thus, if such accusation is prima-facie true, there is no scope for enlarging the accused on bail even on medical ground.

4. We are also of the view that the Trial Court could not have granted bail to the respondent purely on medical ground unless there is a finding to the effect that the accusation made against the respondent is not prima-facie true as contemplated under Section 43D(5) of UA(P) Act, 1967.

5. In the present case, we do not find any such finding by the Trial Court that the accusation made against the respondent is prima-facie not true. Since the accusation/charges made against the respondent are covered under Chapter IV and VI of the UA(P) Act, provisions of Section 43D(5) of the UA(P) Act have to be scrupulously followed, which does not appear to be followed in the present case.

6. For the reasons discussed above, we are inclined to allow the present appeal by setting aside the impugned order dated 09.02.2021 passed by the learned Special Judge, NIA, Dimapur, Nagaland in I.A. No. 332/2020 arising out of RC-02/2020/NIA-GUW for a fresh consideration.

7. Accordingly, we remand the matter to the Trial Court for reconsideration of the bail of the respondent after examining as to whether there are reasonable grounds for believing the accusation against the respondent is prima-facie true or not, as expeditiously as possible and pass a fresh order in accordance with law.

8. While not opposing the remand for fresh consideration, Mr. Dutta, learned Senior counsel for the respondent, however, has submitted that there is no allegation by the authorities that the respondent is a member of NSCN(IM). In fact, records would show that the respondent was merely a negotiator in respect of certain extortion made by the NSCN(IM) to the Company which was engaged in execution of Highway Projects on the National Highway and as such, by any stretch of imagination, the respondent cannot be said to be a member of the terrorist organization. It has been submitted that the respondent was not contributing any money to the terrorist organization, but was merely negotiating between the NSCN(IM) which was demanding money and the Company which was executing the work at the request of the Company and the resident of the nearby villages. Thus, there was no occasion on the part of the respondent to make any financial contribution to NSCN(IM) as she was acting merely a mediator.

9. It has been submitted by learned Senior counsel for the respondent that unless there is a clear intention to make any such contribution voluntarily i.e. an intention to fund or contribute to a terrorist organization, it cannot be said to be an offence as held by the Hon’ble Supreme Court in Sudesh Kedia vs. Union of India, (2021) 4 SCC 704.

10. In this regard, Mr. Dutta, learned Senior counsel h