$~21 * % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Judgment:
22. d August, 2017 CRL.A. 40/2017 WUTHIKORN NARUENARTWANCH @ WILLY ..... Appellant Through : Mr.Anand Grover, Sr. Advocate with Borwankas, Mr.Pankaj Sharma, Mr.Shobhit K Singh, Mr.Varsha Ranjan and Ms.Tripti Tandon, Advocates Mr.Nikhil versus NATIONAL INVESTIGATION AGENCY ..... Respondent Through : Mr.Amit Sharma, Spl. PP with Mr.Som Prakash and Mr.Ahmand Ziad, Advocates with IO Amod Kumar, NIA CORAM: HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MR. JUSTICE CHANDER SHEKHAR G.S.SISTANI, J.
(ORAL) 1. This is an appeal under Section 21(4) of National Investigation Agency Act, 2008 („NIA Act‟) filed by the appellant for grant of regular bail. The appellant impugns the order dated 07.11.2016 passed by the Special Court (NIA) whereby the bail application filed by the appellant/accused no.4 has been dismissed.
2. The appellant is a permanent resident of Bangkok, Thailand and claims to be married having three children. It is the case of the appellant that the Government of India having received information that the accused no.1 and 2 had conducted negotiations for purchase of arms and ammunitions and deposited money in a foreign bank account, had directed the National Investigation Agency (NIA) to Crl. A. 40/2017 Page 1 of 13 conduct investigation. Accordingly, FIR012010 dated 13.01.2010 was registered implicating the appellant along with accused nos.1, 2 and 3. It remains the case of the appellant that he has been falsely implicated along with accused nos. 1, 2 and 3 who are allegedly members of insurgent group by the name of National Socialist Council of Nagaland (Isac Chisi Swu and Thuengaleng Muivah faction) [„NSCN (IM)‟].. The accused nos. 1, 2 and 3 were named in the FIR. The present appellant was arrayed as accused No.4 at the time of filing of chargesheet dated 26.03.2011. The appellant was not in custody at the time of framing of charges and he was then residing at Bangkok, Thailand. An extradition request dated 16.04.2013 was sent by the Government of India, pursuant to which, the appellant was arrested by the Royal Thai Police in Bangkok on 30.08.2013, held in custody and thereafter, extradited and transferred to the custody of NIA on 08.12.2015. The appellant was produced before the Special Court on 08.12.2015 and remanded to custody with the NIA. Upon the expiry of the remand, the appellant has been detained in judicial custody since 23.12.2015.
3. We may note that while accused no.1 was arrested on 02.10.2010, accused nos.2 and 3 have been declared proclaimed offenders. The accused no.1 has already been granted bail by the Special Court by order dated 02.08.2016 and subsequently, accused no.1 has already been allowed to leave the jurisdiction of Delhi and travel to Nagaland and Manipur vide order dated 30.11.2016. The appellant had moved the first application seeking regular bail on 25.07.2016, which was dismissed by an order dated 07.11.2016 leading to the present appeal.
4. Mr. Grover, learned senior counsel appearing for the appellant, submits that the impugned order refusing to grant bail is bad in law Crl. A. 40/2017 Page 2 of 13 and contrary to the facts of the present case. Learned senior counsel submitted that admittedly, the appellant is not a member of any „terrorist gang‟ as defined under Section 2(1)(l) or a „terrorist organization‟ as defined under Section 2(1)(m), or a of any „unlawful association‟ as defined under Section 2(1)(p) of the Unlawful Activities (Prevention) Act, 1967 („UAPA‟).
5. Learned senior counsel for the appellant further submits that even the charge sheet filed by the NIA merely refers to the appellant as an „arms dealer‟; which fact is strenuously denied by the appellant claiming that the appellant is merely a businessman, running a chain of spas in Thailand. Additionally, it is contended that no evidence has been produced by the NIA to show that the appellant is in the business of dealing in Arms. It is also highlighted by the learned senior counsel appearing for the appellant that the ban against NSCN (IM) under UAPA was not been renewed after 2002.
6. Learned senior counsel also contends that the NIA has not produced any material in its chargesheet to show that the appellant was at any time aware of the alleged criminal conspiracy to commit all or any of the alleged offences and thus, in the absence of the any material to show his knowledge he cannot be tried under the stringent provisions of the UAPA. It is also the case of the appellant that assuming the allegations in the chargesheet to be true, the alleged role of the appellant is limited to translation and assistance in the acquisition of weapons from a Chinese manufacturing firm in the name of M/s TCL International Limited and their transport to Chittagong/Cox Bazar port in Bangladesh. No weapon in fact has been seized and no material on record as to transfer of any money has been produced and neither any Crl. A. 40/2017 Page 3 of 13 recovery has been made. It is highlighted that the role of the appellant is limited to translation and nothing else.
7. It is also contended that based on the chargesheet as filed by the NIA, it is clear that the alleged transaction was sought to be conducted by purely legal means, through appropriate government approvals and with proper End User Certificate based on licence acquisition and transport. Thus, it is contended for the reasons that alleged arms deal is not illegal and that licensed acquisition, transport and trade of arms is conducted across the globe and the industry is worth billions of dollars.
8. Learned senior counsel further contends that the appellant has no past criminal antecedents and even as per the chargesheet, he was a businessman indulging in a business of spas in Thailand and has no past or present membership of any organisation in terrorism or any unlawful organisation and thus, painting the appellant with the same brush as accused nos.1 to 3 is completely unwarranted; more particularly in the absence of any nexus between the appellant and rest of the accused persons.
9. Mr. Grover, learned senior counsel for the appellant further submits that even if the allegations mentioned in the charge sheet are taken to be gospel truth, the same begs the question as to why would an unlawful arms procurer create End User Certificate and use his official e-mail IDs creating a paper trail unless he was under the impression that he was entering into legitimate arms trade. There is no material on record to show that the appellant had any knowledge about the existence of NSCN (IM) or any other terrorist organisation or its plan to wage war against the State or to commit any other offences. Crl. A. 40/2017 Page 4 of 13 10. Learned senior counsel further submits that there are 20 witnesses in the present case out of which 5 witnesses have been examined. He further submits that the trial would take many years, meanwhile, appellant and his family have been suffering severe hardship. He has an old infirm father and during the period of custody, his mother passed away on 14.10.2016 and the appellant was unable to attend her last rites. He further submits that the evidence of 5 witnesses has not revealed any incriminating circumstance against the appellant and even otherwise as per the chargesheet, the appellant has been described as an arms dealer and spa owner and that, by itself, is not an offence.
11. Learned senior counsel for the appellant has drawn the attention of the court to the order dated 02.08.2016 granting bail to the accused no.1 to show that the main accused, who as per the chargesheet is the self- styled Major General and Commander, Alee Command (Foreign Affairs) of the NSCN (IM), has been granted bail. He submitted that the role of the appellant is much less and hence, the appellant herein should be admitted to bail and the appellant is willing to adhere to such conditions which may be imposed by this Court.
12. Per contra, Mr. Sharma, learned Special Public Prosecutor for the respondent has opposed his bail. At the outset, Mr. Sharma submits that no benefit accrued in favour of the appellant based on the order dated 02.08.2016 passed in the favour of the accused no.1 as the order is self-explanatory in nature.
13. Learned Special Public Prosecutor contends that since the appellant is a resident/citizen of Bangkok only after great efforts the appellant was arrested and in case he is enlarged on bail, there is every possibility that he would flee from the country and ensuring his presence would Crl. A. 40/2017 Page 5 of 13 be almost an impossibility. While the difference of roles ascribed to accused nos. 1 to 3 and the accused no.4 in the charge sheet is not denied, however, it is contended that accused no.4, appellant herein was an active participant and part of the criminal conspiracy and being a conspirator, he should not be enlarged on bail.
14. Mr. Sharma also contends that the appellant was aware of the conspiracy and he actively participated in furtherance thereof. Having regard to the list of the arms to be procured and the manner they were to be transported, Mr. Sharma contends leaves no room of doubt that the transaction was illegal in nature and part of the conspiracy. Thus, the appellant cannot take the plea that he was not having any knowledge of the conspiracy and was under the impression that he was indulging into a legal arms deal.
15. We have heard learned counsel for the parties and carefully examined their rival submissions.
16. The broad facts which we have narrated in the aforegoing paragraphs are not in dispute. A careful perusal of the chargesheet shows that the accused no.1 was the chief arms procurer of the NSCN (IM), who along with his deputy, the accused no.2, had been conducting negotiations for the purchase of a consignment of lethal arms from foreign countries, which was detected and FIR012010 dated 13.01.2010 registered. NSCN (IM) is an insurgent group with a long history of armed struggle against the Government of India, which was declared an unlawful association in the year 1990. The ban was not renewed after 2002 and presently, the NSCN (IM) is in the process of peace talks with the Government since 1997. The chargesheet alleges that NSCN (IM) functions as a „terrorist gang‟ as per Section 2(1)(l) of UAPA. The accused no.1 continues to lead the faction and Crl. A. 40/2017 Page 6 of 13 regularly procures arms and ammunitions for it. NSCN (IM), under the command of accused no.1, has various terrorist camps in the territory of Bangladesh. These camps are used for ground preparation, storage and transportation of arms and ammunition consignment illegally procured through Cox‟s Bazar, Bangladesh to various camps of NSCN (IM) in India. As per the investigation, in 2007, the then self-styled Home Minister of NSCN (IM) deserted and joined another rival faction group [NSCN (K)]. with 70-80 weapons, causing a paucity of weapons. A conspiracy was hatched by accused no.3 to procure a huge consignment of arms and ammunition for NSCN (IM) and directed the accused no.1 to work on it. Numerous meetings were held between the accused nos.1 to 3. As the initial attempts did not bear fruit, the accused no.3 requested PW-21 to assist accused nos.1 and 2 in finding a suitable arms dealer.
17. Further, as per the chargesheet, PW-21 introduced the accused nos.1 and 2 to the appellant, who has been described as a Thai businessman based in Bangkok and running a spa business and also dealing in arms procurement as a middleman. It will be useful to reproduce pargraph 17.21 of charge sheet, which reads as under: “17.21 Investigation also revealed that in pursuance to the said conspiracy on the request of A-3, PW-21 introduced A-1 and A-2 with a Thai arms procurer A-4 in Bangkok. A-4 a Thai businessman, based in Bangkok is running a Spa business and also deals in arms procurement as a middleman. PW21was in constant touch with A-l through his email id libertyson27(@yahoo.com and with A- 4 on his email id [email protected] and A-2 on his email id [email protected].” (Emphasis Supplied) 18. The chargesheet reveals that in pursuance of the conspiracy, the accused no.1 informed the appellant that he wanted to procure 1,000 Crl. A. 40/2017 Page 7 of 13 pieces of arms including AK series automatic rifles, light machine guns, pistols, RPGs, Rocket Launchers and 5 lakh rounds of ammunition. The appellant assured that the weapons would be procured through TCL, a Chinese company dealing in arms and ammunition and introduced them to one, Yuthana, a representation of TCL. TCL is an authorised representative of an arms selling company in China. Though initially, the appellant had informed the accused no.1 that the deal should not be less than US $ 2 million, but on the persuasion of the accused no.1, they agreed to sell the weapons for US $ 1,00,000/-. This was approved by the accused no.3 and the deal was fixed for US $ 1.2 million including the cost for transhipment.
19. As per the chargesheet, it is alleged that the accused no.1 met the appellant and Yuthana several times to discuss the modalities of procurement, mode of payment and shipment. The End User Certificate, engagement of the shipping company and loading of the goods were to be arranged by the appellant; for which the total cost will be US $ 2,00,000/-. The loading port was Beihei Port of South China and the delivery would be at Cox‟s Bazar in the high sea in Bangladesh. From there, the goods were to be shifted in smaller fishing trawlers. The appellant asked accused no.1 to deposit the money in advance and accordingly, US $ 1,00,000/- was paid in May, 2009, which was inturn sent to the Chinese company TCL International by the appellant. An electronic receipt was also sent by the appellant to the accused no.1, which was on the letterhead of TCL International. Further US $ 7,00,000/- were sent to TCL by the accused no.1 through the appellant and US $ 1,00,000/- were paid to the shipping agent Kittichai of Intermarine Shipping Company of Bangkok through the appellant. The entire correspondences were paid Crl. A. 40/2017 Page 8 of 13 by Email, where the accused no.1 used the email ID „libertyson27(@yahoo.com‟, the appellant used „[email protected]‟ and „[email protected]‟, the accused no.2 used „[email protected]‟, while Kittichai used „[email protected]‟.
20. As per the chargesheet, investigation further revealed that in the later part of September, 2010, the accused no.1 consulted the appellant about the ground situation in Bangladesh, which was not favourable to NSCN (IM) and it was decided to postpone the deal for the time being. The accused no.1 planned to visit India to meet the NSCN (IM) leadership to brief them about the progress in the matter and it was during this clandestine travel that the accused no.1 was arrested infront of Patna Railway Station. The investigation also revealed that accused no.1 travelled to various destinations and his presence in Bangkok coincides with that of the appellant.
21. Mr.Grover, drawing the attention to paragraphs 17.21-17.27, has highlighted that the role ascribed to the appellant herein was of a middleman. He did not provide the arms; did not receive the payment; and there is no evidence on record that the appellant herein was beneficiary of any functional commitment made between the accused nos.1 - 3 to the Chinese company TCL International. The amounts were paid by NSCN (IM), Bangkok office to accused no.1 and there is no record to support that this amount was paid or received by the appellant.
22. Mr.Grover strenuously urged that before this court that appellant who is neither a part of the terrorist organisation nor unlawful association and is admittedly, a businessman of Thailand with no past criminal antecedents, thus, cannot be denied bail during the pending of the Crl. A. 40/2017 Page 9 of 13 proceedings merely on the ground that he would leave the country and would not face trial. Mr. Grover, learned senior counsel for the appellant, submits that the appellant is willing abide by all the conditions which may be imposed by the Court in case the bail is granted.
23. A careful reading of the chargesheet as examined in the aforegoing paragraphs, clearly reveals that the role attributed to the accused no.1 who was the self-styled Major General and Commander, Alee Command (Foreign Affairs), is at a higher footing than the appellant herein, who has been released on bail on the consent of the Government.
24. At the same time, the proviso to sub-section (5) to Section 43D, mandates that the accused person cannot be released on bail if on perusal of the case diary or the chargesheet, the Court finds that the allegation against the appellant are prima facie true. As a necessary colliery, it goes that the High Court while hearing an appeal under Section 21(4) of the NIA Act is also to abide the additional condition imposed while seeking bail. This arises from the very fact that the proceedings before the appellate court are to rectify an erroneous decision of the lower court. [See State of Gujarat v. Salimbhai Abdulgaffar Shaikh, (2003) 8 SCC50 25. In the present case, we have carefully examined the chargesheet filed by the NIA before the Special Court. The role of the appellant herein, described as an arms dealer and businessman, is limited to the extent of acting as a middleman and approaching the Chinese company TCL and Intermarine Shipping Company. He has merely acted as a middleman and corresponded via proper modes and not in a surreptitious manner. The only allegation against the appellant is that Crl. A. 40/2017 Page 10 of 13 he was a privy to the conspiracy hatched between the other accused [being members of NSCN (IM)].. There is nothing in the chargesheet to suggest that the appellant knew that the arms and the ammunitions being procured were to be used in terrorist activities. Accordingly, we are unable to find that the allegations against the appellant are prima facie true. Hence, the order of the Trial Court cannot be sustained.
26. We may also notice the judgment of the Apex Court in State of Kerala v. Raneef, (2011) 1 SCC784 wherein the State had preferred an appeal from the order of the High Court granting bail to the respondent accused of the offences under various provisions of the Indian Penal Code, 1860, Explosive Substances Act and the UAPA. The case of the prosecution was that the respondent was part of a plan to provide medical aid to the assailants in carrying out the attack then proceeded to provide such aid. The Supreme Court while upholding the order of the High Court held that the doctrine of guilt by association had no place and until there is active knowledge of the aims, the accused cannot be punished. The Court further observed as under: “15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody?. Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case?. Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Crl. A. 40/2017 Page 11 of 13 Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille.” (Emphasis Supplied) 27. Similarly, in the present case, we do not find anything in the chargesheet to show that the appellant herein shared the active knowledge that the arms and ammunitions were to be used to carry out illegal activities.
28. Thus, we are inclined to grant bail to the appellant, however, at the same time, we also find force in the submission made by learned Special Public Prosecutor that the presence of the appellant could only be ensured in India after great efforts and extenuation proceedings and if the appellant flees, it would be virtually impossible to secure his presence.
29. Accordingly, the order of the Trial Court is set-aside and taking into consideration the submissions made, the appellant shall be released on bail during pendency of trial before the Special Court on his furnishing a personal bond of Rs.5,00,000/- with two solvent sureties in the like amount, subject to following conditions: a) He shall not tamper with the prosecution evidence in any manner and will not contact the witness; b) He shall regularly appear before the Special Court on each and every date of hearing; c) He shall report the Investigating Officer, NIA Police Station once in every two weeks and will not be detained for more than 30 minutes; d) He shall not leave the country including National Capital Region of Delhi without the prior permission of the Special Court; Crl. A. 40/2017 Page 12 of 13 e) He shall provide his contact number and the local address to the Investigating Officer; and f) He shall not make any application seeking travel document(s) from the Embassy.
30. A copy of this order will also be brought into the notice of the Embassy with the request that no travel document will be issued in favour of the appellant without prior intimation and leave of the Special Court.
31. The NIA will bring the order to the notice to the immigration authorities to ensure that the appellant does not travel abroad.
32. The appeal is disposed of.
33. In view of the aforegoing order, Crl.M.B. 63/2017 seeking interim bail is rendered infructuous and accordingly, dismissed.
34. Needless to state that all the observations made in this order are to satisfy ourselves whether a prima facie case is made out or not and should not be construed as an expression of final opinion on the guilt/innocence of the appellant or other accused, which will be ascertained after trial. AUGUST22 2017 // /b G. S. SISTANI, J.
CHANDER SHEKHAR, J.
Crl. A. 40/2017 Page 13 of 13