IMPORTANT POINT
Disclosure statement – Only such portion of information given as is distinctly connected with discovery is admissible against accused.

JUDGMENT :

Abhay S. Oka, J.

1. Leave granted.

FACTUAL ASPECTS

2. The appellants are accused nos.46 and 47 in FIR No. 65 of 2018 registered on 23rd September 2018 at Dumbriguda Police Station, District Vishakhapatnam, in Andhra Pradesh. The appellants, along with other co-accused, are being prosecuted for the offences punishable under Section 120B read with Section 302 of the Indian Penal Code, Sections 18, 19, 20 and 39 of the Unlawful Activities (Prevention) Act, 1967 (for short ‘the UAPA’). The appellants are also charged with offences punishable under Sections 4 and 5 of the Explosives Substances Act, 1908 (for short ‘the Explosives Act’).

3. The incident is of 23rd September 2018. At about 12:10 hours, Shri Kidari Sarveswara Rao, a member of the Legislative Assembly and whip of the Telugu Desam Party in Legislative Assembly and one Shri Siveri Soma, a former MLA belonging to Telugu Desam Party, were killed near the village Livitiputtu, Pothangi Panchayat within the jurisdiction of Dumbriguda Police Station at Visakhapatnam. This incident took place when both of them were proceeding to village Sarai to attend a function. The allegation is that 45 accused persons who belonged to the Communist Party of India (Maoist), a terrorist organisation notified in the first schedule of the UAPA, stopped the convoy of vehicles of the aforesaid two leaders. The accused compelled them to get out of their cars. Both of them were taken towards Y-Junction. Thereafter, the MLA was taken to the left-hand side of Y-Junction and the Ex-MLA was taken to the right-hand side of Y-Junction. Both of them were killed by three gunshots. The Personal Secretary of the deceased sitting MLA lodged FIR on the same day in which he named 45 accused. Earlier, investigation was carried out by a Special Investigation Team, which was subsequently transferred to the National Investigation Agency (NIA). The case was registered by NIA as RC-02/2018 NIA/HYD on 6th December 2018. The appellants were arrested on 13th October 2018. A charge-sheet was filed against them on 10th April 2019. It appears from the said charge-sheet that there are 79 accused though initially there were 85 accused. About 144 witnesses have been named in the charge sheet so far. The charge has not yet been framed. Some of the accused are absconding. The appellants have been in custody for the last four years and seven months.

SUBMISSIONS

4. Shri Colin Gonsalves, the learned senior counsel appearing for the appellants, has taken us through the relevant portions of the charge sheet filed against the present appellants. He pointed out that the recovery of landmine is shown at the instance of appellant no.1-accused no.46, which on the face of it, is highly suspicious. He pointed out that there is no recovery shown at the instance of the accused no.47. He pointed out that the second allegation against accused no.46 is that the call details record of accused nos.46, 47 and 84 show that they were always in touch with each other which shows that they were partners in the criminal conspiracy. He pointed out that accused no.84 has been granted bail by the High Court. He pointed out that another allegation against accused no.46 is that he purchased huge quantity of medicines worth Rs.8,000/- which were to be handed over to a Maoist sent by accused no.84. He submitted that there is no material against both the accused to show that they provided shelter and logistic support to the Maoists as well as co-accused and that they planted landmines. He pointed out that there is no evidence to show that the alleged landmines had any connection with the offence of killing the aforesaid two leaders. He would, therefore, submit that there is no prima facie evidence of the involvement of the two appellants in the offence. He relied upon a decision of this Court in the case of Union of India v. K.A. Najeeb (2021) 3 SCC 713. He submitted that even charges have not been framed. Some of the accused are absconding. Considering t