Point of Law: Rejection of Bail – Dismissal of Appeal - Appellant was member and occupied an important position at the organizational level; actively involved in propagating the ideology of revolt against the elected Governments.

JUDGMENT :

Vinod Chandran, J.

By the impugned order in the above appeal, the Special Court for the trial of NIA cases, Ernakulam, rejected the application for bail filed by the appellant herein. The appellant is accused No.4 in S.C.No.1/2021/NIA/KOC. The allegations against the accused were under S.120B of IPC and Ss.13, 38 & 39 of Unlawful Activities (Prevention) Act, 1957 [hereinafter 'UA(P)A']. The arraignment of A4 in the case was an offshoot of the arrest of two young men found under suspicious circumstances, on 01.11.2019 at around 6.15 p.m by the Pantheerankavu Police while on patrolling duty. Out of the three, one ran away and the others were apprehended. Annexure A1 FIR 507/2019 was registered under Ss.20, 38 & 39. Search was conducted in the house of A1 & A2, apprehended under suspicious circumstances, and various documents seized. Later, A1 was released on bail by this Court and A2's application was rejected. National Investigation Agency [NIA], who had by then taken over the investigation on 16.12.2019 and filed FIR 4/2019, appealed against the grant of bail to A1. The said appeal was taken along with the appeal against rejection of bail by A2 by the Hon'ble Supreme Court in which the NIA's appeal was rejected and A2's appeal allowed. The appellant strongly relies on the judgment of the Hon'ble Supreme Court reported in Thwaha Fasal and Another v. Union of India [2021 (6) KHC 228 (SC)]. Even before that a final report was filed by the NIA against A1, A2 & A3, the last unidentified at that point of time. On 27.04.2020, S.20 was omitted and a charge laid with A2 charged additionally under S.13 of UA(P)A. On further investigation, the house in which A4 & A5 were residing was raided on 01.05.2020, from where documents and pen- drives were recovered allegedly belonging to A4. On 27.07.2020 by Annexure A4, A4 & A5 were sought to be arraigned as accused. A4 was arrested much later on 21.01.2021.

2. Sri.K.S.Madhusoodanan, learned Counsel appearing for the appellant, argued that there is absolutely no incriminating material connecting A4 to the crime alleged or the allegations raised. The materials recovered on search of the house cannot at all be connected to A4. A4 did not have exclusive possession of the house, which was rented out by three individuals, A4, A5 and CW97. CW97, at the time of search, admittedly was not residing there. A4 was residing with A5 and there is also evidence to indicate that another friend of the accused, CW111, had been residing with the accused. Annexure A4 report, by which the seizure was made, was seriously challenged by the learned Counsel. A4 report shows that the searched premises was a two-storied building. The seizure made is haphazard and not in a sequential order as is expected from the Police. Some of the materials were collected from a bag and the other from the room itself. Serial No.15 in Annexure A4 is the Electoral ID Card of A4, which was recovered from a bag. The description of the bag is not found in the report nor is it seized. This assumes relevance, especially since CW99 categorically states that A4 used a brown bag. After serial No.15, the material in serial No.16 was seized from the corner of the room and so were serial Nos.17 to 25 alternatively from the room and a bag. Pertinently, there is no indication that the bag from which the other materials were seized was the bag in which the Electoral ID Card was found. From the sketch of the searched premises, prepared by the Village Officer, Peruvayal, it is pointed out that there is no half-wall between the bathroom and kitchen, while Annexure 5, S.164 statement of A5, asserts that incriminating material seized, were hidden on the top of that wall by A4.

3. The bulwark of the prosecution case is the supposedly inciting material revealed from the documents and the pen-drive. But without establishing the same having been recovered from the possession of A4; there can be no prima facie truth ferreted out from such material. It is p