J. Sankar Rao vs State Of West Bengal

Rajasekhar Mantha, J

The revisionist is aggrieved by a supplementary charge sheet filed and cognizance taken under the Unlawful Activities (Prevention) Act, 1967.

The facts of the case are that pursuant to an earlier incident whereby there was firing and grievous injuries was caused to some persons, in a local political party office, an FIR was registered and investigation was commenced. The Magistrate granted police custody of the revisionist.

Thereafter the Kharagpur Town Police Station made a request to the Inspector-in-Charge of Jhargram Police Station to carry out further investigation and take steps in view of the statement of the revisionist under Section 161 of the Criminal Procedure Code as also the fact that the matter falls within the jurisdiction of Jhargram Police Station.

By a further report dated 20th March, 2017, the SI of Police, Jhargram Police Station filed a further investigation report. In the meantime, search and seizure was conducted on the basis of the confession of the accused in custody. After a raid, certain modern automatic weapons were also recovered along with carbines. This is in addition to an earlier raid where certain other improvised arms were recovered. Initially a charge sheet has been filed, inter alia, under the Arms Act against the revisionist. Subsequent thereto, a supplementary charge sheet was filed under Sections 15, 16, 16A, 23 and 23 of the Unlawful Activities (Prevention) Act.

Mr. Bikash Ranjan Bhattacharyya, learned Senior Counsel appearing for the petitioner would urge a two fold ground challenging the instant proceedings. He submits that the statement under Section 161 of the Criminal Procedure Code was given under police custody and wherein the revisionist admitted that he was an arms dealer and supplied arms to Maoists (a banned terrorist group) and was involved with a arms dealing mafia and was a member of the Maoists group. He also admitted that in the past he has supplied arms to this Maoist organization.

Learned Senior Counsel for the petitioner submits that in view of the provisions of Section 15 of the Unlawful Activities (Prevention) Act, 1967 the accused must be found to have in fact used such arms to be categorized as a terrorist and the same should be based on a complaint lodged by the local affected people or victims.

He further submits that even assuming that the provisions of Unlawful Activities (Prevention) Act, 1967 are attracted investigation ought to be conducted by the NIA under the National Investigation Agency Act, 2008.

This Court notes that the definition of 'Terrorist act' under Section 15 of the Unlawful Activities (Prevention) Act, 1967 which is set out herein below:-

"15. Terrorist act. -(1) Whoever does any act with intent to threaten or likely to threaten the unity, integrity, security [economic security) or sovereignty of India or with intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country,-

(a) by using bombs, dynamite or other explosive substances or inflammable substances or firearms or other lethal weapons or poisonous or noxious gases or other chemicals or by any other substances (whether biological radioactive, nuclear or otherwise) of a hazardous nature or by any other means of whatever nature to cause or likely to cause-

(i) death of, or injuries to, any person to persons; or

(ii) loss of, or damage to, or destruction of, property; or

(iii) disruption of any supplies or services essential to the life of the community in India or in any foreign country; or

(iii-a) damage to, the monetary stability of India by way of production or smuggling or circulation of high quality counterfeit Indian paper currency, coin or of any other material; or

(iv) damage or destruction of any property in India or in a foreign country used or intended to be used for the defence of India or in connection with any other purposes of the Government of India, any State Government or any of their agencies; or

(b) overawes by means of criminal force or the show of criminal force or attempts to do so or causes death of any public functionary or attempts to cause death of any public functionary; or

(c) detains, kidnaps or abducts any person and threatens to kill or injure such person or does any other act in order to compel the Government of India, any State Government or the Government of a foreign country or [an international or inter-governmental organisation or any other person to do or abstain from doing any act; or] commits a terrorist act.

[Explanation.- For the purpose of this sub-section,-

(a) "public functionary" means the constitutional authorities or any other functionary notified in the Official Gazette by the Central Government as public functionary;

(b) "high quality counterfeit Indian currency" means the counterfeit currency as may be declared after examination by an authorised or notified forensic authority that such currency imitates compromises with the key security features as specified in the Third Schedule.]

[(2) The terrorist act includes an act which constitutes an offence within the scope of, and as defined in any of the treaties specified in the Second Schedule.]"

Hence, the petitioner who admittedly sold arms to terrorists and was arms dealer and supplier and member of such group could come within the meaning of this expression "likely to cause terror" under Section 15(1) of the Unlawful Activities (Prevention) Act, 1967 which is set out hereinabove.

In view of the above, this Court is of the view that it would be too premature to hold that the provisions of the Unlawful Activities (Prevention) Act, 1967 would not be attracted. The investigation in the instant case has been conducted by the State police, although the provisions of the Unlawful Activities (Prevention) Act, 1967 have been invoked in the charge sheet filed against the revisionist.

This Court notes that if the investigation is now transferred from the State police to NIA some of evidence may disrupted and/or destroyed and lost. Hence, this court is of the view that the investigation conducted till now by the State police need not be set to naught. The date of framing of charge is fixed on 19th September, 2019.

Since the prosecution of the case is also to be conducted in terms of the 2008 Act by the NIA, the entire prosecution may be transferred to the NIA by the State agency. Alternatively NIA may be sought for continuing the prosecution inter alia against the revisionist by the State agency itself.

With the aforesaid observations, no relief can be granted to the revisionist in the instant case.

Let a copy of this order be sent by the Registry to the Head of the NIA immediately.

CRR 1923 of 2019 must fail and is hereby dismissed.

There shall be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.