Sajith Shyam vs State Of Kerala

P.B.Suresh Kumar, J.

This appeal is preferred invoking Section 21 of the National Investigation Agency Act, 2008 (NIA Act) challenging the order dated 07.08.2024 passed by the Special Court for Trial of NIA Cases, Kerala (the Special Court), dismissing the application for bail filed by the appellant in R.C.No.02/2024/NIA/KOC. The appellant is the third accused in the case.

The case was one registered initially by Nedumbassery Police on 19.05.2024 under Section 370 of the Indian Penal Code (IPC) and Section 19 of Transplantation of Human Organs and Tissues Act, 1994, against one Sabith Korukulath Nasar on the allegation that the accused induced gullible victims by deceptive means to donate their organs in lieu of money and transplanted the same to recipients at Iran by trafficking them. In the course of the investigation, the appellant was arrested on 24.05.2024, after arraying him as the third accused in the case. The allegation against the appellant is that he is a childhood friend of the first accused; that the first accused is the kingpin of the crime and the appellant played a very important role in camouflaging the proceeds of the crime. It was also alleged that the appellant received money directly from the organ recipients in his account. Though the appellant preferred applications for bail, the same were rejected mainly on the ground that custody of the appellant is essential to unearth the racket in the aforesaid organ trade. The case being a cross border crime, the National Investigation Agency (NIA) took over the investigation later and re-registered the case as R.C.No.02/2024/NIA/KOC on 03.07.2024.

The appellant, thereupon, preferred a bail application before the Special Court. The application was opposed mainly on the ground that the incriminating materials found are sufficient to substantiate his involvement in the crime; that the first accused in the case is still at large; that cross border crime require in-depth investigation as it has its roots in different States and foreign countries; that the appellant has international connections and is influential and that if the appellant is released on bail, he is likely to sabotage the investigation. The Special Court noticed that there has been monetary transactions and frequent telephonic communication between the appellant and the first accused who is the kingpin of the crime; that the investigation in the case has not concluded yet and that therefore, releasing the appellant on bail at the said stage would frustrate the investigation for, the appellant on being released is likely to influence victims or intimidate them to destroy evidence. The bail application was accordingly, dismissed. The Special Court also took note of the fact that the first accused is yet to be arrested, while dismissing the application for bail of the appellant. It is aggrieved by the said decision of the Special Court that the appellant has preferred this appeal.

Heard Sri.P.Vijayabhanu, the learned Senior Counsel for the appellant. Sri.Suvin R. Menon, the learned Central Government Counsel addressed arguments on behalf of the Union of India.

The learned Senior Counsel for the appellant argued that the final report in the case has been filed after the impugned order and the allegations in the final report are only that the appellant has committed offences punishable under Sections 120B, 370, 465, 471 and 34 of IPC. It was pointed out by the learned Senior Counsel that among the offences alleged, only the offence punishable under Section 370 IPC is included in the Schedule to the NIA Act. According to the learned Senior Counsel, inasmuch as the investigation in the case is over and the offences attributed against the appellant are only offences punishable under the Indian Penal Code, in the absence of any restriction in the power of the court in granting bail, there is absolutely no justification for denying bail to the appellant, especially since he is in custody from 24.05.2024.

The learned Central Government Counsel contended that even though the final report in the case has been filed, further investigation is still being conducted and having regard to the gravity of the accusation, it may not be appropriate to enlarge the appellant on bail. It was also contended by the learned Central Government Counsel that the materials indicate the appellant is acting as a vital link in the chain of inducement and exploitation of the poor and vulnerable sections of the society, in addition to the shady bank transactions he had with the kingpin of the crime, namely the first accused. It was also contended that the analysis of the mobile phone of the appellant revealed several incriminating evidence in the form of donors' and recipients' flight tickets, their lab reports, their hotel stay receipts etc. According to the learned Central Government Counsel, if the appellant is enlarged on bail, he is likely to use his influence to intimidate witnesses and sabotage the efforts of the NIA to apprehend the first accused in the case. The learned Central Government Counsel has also contended that in a case of this nature, the concern of the society has to be kept in juxtaposition with individual liberty of the accused, and the former ought to be given priority over the latter.

The learned Central Government Counsel did not dispute the power of this court in granting bail to the accused in appropriate cases, in exercise of the appellate power under Section 21 of the NIA Act, having regard to the subsequent development, viz, submission of the final report in the case.

We have perused the relevant pages of the final report in the case which was made available to us at the time of hearing. The allegations against the appellant in the final report read thus:

“18.3 Sajith Syam @ Sajith Shyam (A-3)

a) That, the accused Sajith Syam @ Sajith Shyam (A-3), knowingly and wilfully hatched criminal conspiracy with Madhu Jayakumar @ Madhu (A-1), Korukulathu Nasar Sabith @ Sabith Korukulath Nasar @ Sanjay @ Sabith (A-2), Bellamkonda Ram Prasad @ Pratap (A-4) and others to traffic Indians to Iran for illegal organ trade, that in pursuance of the conspiracy and their common intentions, Sajith Syam @ Sajith Shyam (A-3) and others identified gullible youth with financial constraints including Shameer Basheer of Kerala, Sathya Raj Rao of Karnataka, Vala Rohit Rao of Telangana, besides others, induced them by giving payments and assuring that organ trade is legal in Iran to obtain their consent to donate their organs and trafficked them to Iran, removed their organs, collected huge amount of money from various recipients including Kiran Gupta, Sofia Banoo of Jammu and Nisha Rani of Ghaziabad besides others by assuring that organ trade is legal in Iran and transplanted to them the organs of these victims, that Sajith Syam @ Sajith Shyam (A-3) and others had used part of the money collected from the recipients for inducing and deceiving the donors including Shameer Basheer, Sathya Raj Rao, Vala Rohit Rao, and others, and in the process Sajith Syam @ Sajith Shyam (A-3) and others fraudulently created fake documents for the purpose of illegal organ transplantation of Indian nationals in Iran and used the same and thereby accumulated wealth from the proceeds of the crime.

b) Therefore, accused Sajith Syam @ Sajith Shyam (A-3) committed offences punishable under Sections 1208, 370, 465, 471 and 34 of the Indian Penal Code.”

It is seen from the materials produced along with the final report that several forged documents concerning the crime have been retrieved from the mobile phone of the appellant. It is also seen that there are materials to indicate that the appellant had regular communication with the first accused who is absconding and also had monetary transactions with him. It is mainly based on the said materials that it is alleged that the appellant has committed the offences punishable under Sections 120B, 370, 465, 471 and 34 of IPC. On a query from the court, the learned Central Government Counsel clarified that the NIA could not collect any evidence to indicate that the appellant has induced anyone to donate organs and trafficked him/her to Iran. Similarly, on a query from this court as to the quantum of money transactions the appellant had with the first accused, it was pointed out by the learned Central Government Counsel that it is about Rs.10 lakhs. The appellant does not deny his connections with the first accused in the case, but rather admits that the first accused is one of his childhood friends and that there have been some monetary transactions between them for several years.

Be that as it may, as pointed out by the learned Senior Counsel for the appellant, the offences alleged against the accused are only offences punishable under the Indian Penal Code and among the offences, only the offence punishable under Section 370 IPC is included in the Schedule to the NIA Act. Inasmuch as there is no restriction on the power of the court in granting bail to the accused in cases involving the offences punishable under the Indian Penal Code, the question to be considered is whether this Court would be justified in granting bail to the appellant on the facts discussed above.

In this context, the learned Central Government Counsel brought to our notice the decisions of the Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 as also in Deepak Yadav v. State of U.P., (2022) 8 SCC 559 to impress upon us that the nature and gravity of the accusation should always be taken note of by the courts while granting bail to the accused in serious crimes. There cannot be any doubt to the proposition that the court, while considering an application for bail, shall always keep in mind, inter alia, the nature and gravity of the accusation. But at the same time, it has to be borne in mind that the evolution of bail jurisprudence in India underscores that the issue of bail is one of liberty and justice which insist that a developed jurisprudence of bail is integral to a society sensitised judicial process. The principle has further been expanded to establish that the prolonged incarceration of an accused person, pending trial, amounts to an unjust deprivation of personal liberty. The Apex Court has expanded these principles even in cases registered under the Unlawful Activities (Prevention) Act, 1967, notwithstanding the statutory embargo contained in Section 43-D(5) of the said Act, laying down that the legislative policy against the grant of bail will melt down where there is no likelihood of the trial being completed within a reasonable time. In this context, it is apposite to refer to a few passages from the recent judgment dated 13.09.2024 of the Apex Court in Criminal Appeal Nos.3816 and 3817 of 2024. The passages read thus:

“38. This Court in Gudikanti Narasimhulu Vs. Public Prosecutor, had highlighted that bail is not to be withheld as a punishment. The requirement as to bail is merely to secure the attendance of the prisoner at trial. This Court in Manish Sisodia referred to and relied upon the aforesaid decision and reiterated the salutary principle that bail is the rule and jail is the exception. This Court has observed that even in straightforward open and shut cases, bail is not being granted by the trial courts and by the High Courts. It has been held as under:

The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters  of  grant of bail.  The principle that bail is a rule and refusal is an exception   is, at times, followed in breach. On account  of  non-grant of bail even  in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”.

Bail jurisprudence is a facet of a civilised criminal justice system. An accused is innocent until proven guilty by a competent court following the due process. Hence, there is presumption of innocence. Therefore, this Court has been reiterating again and again the salutary principle that bail is the rule and jail is the exception. As such, the courts at all levels must ensure that the process leading to and including the trial does not end up becoming the punishment itself.

This Court has emphasized and re-emphasized time and again that personal liberty is sacrosanct. It is of utmost importance that trial courts and the High Courts remain adequately alert to the need to protect personal liberty which is a cherished right under our Constitution.”

In the light of the legal position discussed above, we are of the view that on the facts of the present case, we may not be justified in denying bail to the appellant.

In the circumstances, the appellant is enlarged on bail in connection with R.C.No.02/2024/NIA/KOC upon executing bail bond for a sum of Rs.5,00,000/- (Rupees five lakhs only) with two sureties each for the like amount to the satisfaction of the Special Court, and subject to the following conditions :

1) The appellant shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence.

2) The appellant shall not leave the State of Kerala without prior permission of the Special Court.

3) The appellant shall surrender his passport before the Special Court, or if he does not have a passport, he shall file an affidavit to that effect within five days of his release. Application for release of the passport, if any, shall be considered by the Special Court at the appropriate stage.