VERNON versus THE STATE OF MAHARASHTRA & ANR.

12. Allegations against these two appellants appear, inter-alia, from paragraphs 17.5, 17.9, 17.10, 17.11, 17.15 17.18 and 17.19 of the first supplementary chargesheet. These paragraphs from the chargesheet dated 21st February 2019 are quoted below:- “17.5 During the investigation of this crime it emerged that the activity of the accused in this was not limited to only creating antagonism between two sections but they were also doing other destructive acts against the country. Accused Sudhir Dhawale, Rona Wilson, Surendra Gadling, Mahesh Raut and Shoma sen had done unlawful and terrorist acts in accordance with a pre-planned plot by and on behalf of the banned organization C.P.I (Maoist) , a large country wide conspiracy to overthrow through force of violence the constitutionality established democracy and administrative system in the country. It has also emerged that the present crime is also one part of this conspiracy. Since the participation of accused No.1 Varavara Rao, No.2 Vernon Gonsalves, No.3 Arun Ferreira, No.4 Sudha Bharadwaj and other accused in the said conspiracy of the banned organization C.P.I (Maoist) became clear, their residences and those places from where evidence could possibly be obtained were searched on 28/08/2018. 17.9 It has emerged that accused No.2 Vernon Gonsalves No.3 Arun Ferreira and No.4 Sudha Bharadwaj along with other accused have recruited members for the banned terrorist organization. They are also active members of the said banned organization and have fulfilled the objectives of the banned organization by doing propaganda and dissemination through the medium of frontal organization with the ideology of the organization. 17.10 Accused No.2 Vernon Gonsalves has been convicted and sentenced by the Hon’ble Court of Session , Nagpur in C.R.No.10/2007 offence u/s 10,13,16,17,18,20,23,40(2) Unlawful Activities (Prevention) Act, 25(1-B) Arms Act, 6,9(b) Explosives Act, 4(b), 5 Explosive Substances act 120-B, 121- A IPC of A.T.S. Kala Chowky Police Station , Mumbai. He has accordingly served the sentence. Accused Vernon Gonsalves Unlawful Activities as member of banned organization have been going on continuously. 17.11 During investigation of the said crime it has emerged that I.A.P.L (Indian Association of People’s Lawyers) is a frontal organization of the banned organization C.P.I (Maoist) and is working according to the organization’s direction and orders and with its economic backing to fulfill the objectives of the banned organization. Accused no.3 Arun Ferreira , No.4 Sudha Bharadwaj and Surendra Gadling are members of the said frontal organization. They along with other accused have made conscious attempts to spread this frontal organization. By doing various unlawful activities through the medium of this frontal organization they have endangered the stability of the country. 17.15. Thus accused nos. 01 to 04 and other accused are members of the banned terrorist organization CPI (Maoist). All work related to this organization is done by these accused is an underground manner. It has emerged from the evidence obtained that frontal organization which supposedly promote democratic rights and civil liberties, such as Indian Association of People’s Lawyers (I.A.P.L) , Anuradha Ghandy Memorial Committee (A.G.M.C), Kabir Kala Manch, Persecuted Prisoners Solidarity Committee (P.P.S.C) are set up or similar organizations are infiltrated in as systematic manner and under their cover the work related to the terrorist organization C.P.I (Maoist) is being accomplished is an extremely secret manner. 17.18. During the Investigation it has emerged that the accused No.01 to 04 in this offence and other accused have worked as part of a pre-planned conspiracy devised by the banned organisation C.P.I. (Maoist), a large, countrywide plot and conspiracy to overthrow by force of violence the democratic administrative system established under the country’s constitution. It emerged that the organisation C.P.I. (Maoist) and the members of the organisation in this offence have hatched the conspiracy of this offence. VERNON v. THE STATE OF MAHARASHTRA & ANR. [ANIRUDDHA BOSE, J.] 17.19. Accused no.1 in the said offence Varavara Rao, Accused Rona Wilson and Surendra Gadling along with the Polit Bureau and Central Committee and other underground members of the banned terrorist organisation C.P.I.(Maoist) hatched a criminal conspiracy and obtained the participation of the accused no.02 Vernon Gonsalves, accused no.3 Arun Ferreira and accused no.04 Sudha Bharadwaj in the said conspiracy and got them to participate as active members of the banned C.P.I. (Maoist) organisation banned by the Government of India for the continuation of Unlawful Activity, for exchange of messages, for the implementation of the goals and policies of the said unlawful organisation by planning and convening sittings along with them as also to help their unlawful activities. In same manner it has emerged that hard disks, pendrives, memory cards, mobiles, etc. seized during the house search of accused no.1 Varavara Rao, Surendra Gadling and Rona Wilson contained correspondence, papers, photographs, etc. related to the banned CPI(Maoist) organisation as also that they attempted in different ways to implement the goals, policies and objectives of the said organisation. It also emerged that they attempted in different ways to do acts against the country to overthrow the democratic and lawful administrative system through the medium of frontal organisations established on behalf of the banned organisation in urban areas.” (quoted verbatim from paperbook)

13. In the first statement, the protected witness who appears to have had been associated with Maoist movement claims to have met VG in the year 2002 as we have already indicated. He has spoken of a timeline between 2002 to 2007. According to him, at that time VG and AF were members of the Maharashtra State Committee, presumably of CPI (Maoist) organisation. This statement was recorded on 27th January 2019 by an Assistant Commissioner of Pune Police. The protected witness has made another statement on 27th July 2020 before the police in which he has referred to participation of AF in a seminar of Revolutionary Democratic Front in Hyderabad in the year 2012 and VG in September 2017 by an organisation referred to as “Virasam”. These were also broadly repeated in his statement before a Magistrate recorded under Section 164 of the 1973 Code on 28th July 2020. The prosecution has also relied on statements made by one Kumarsai, who appears to have been associated with the same organisation. Such statements appear to have been made on 2nd November 2018 and 23rd December 2018. He has stated that he had personally never seen VG but according to him, VG was doing the work of uniting intellectuals. About AF, he is alleged to have said that he was “intruding” in student organisations and creating cadre, who were being sent to forests. He also claims to have met AF in the 2003-2007 phase. The third witness, whose statements have also been relied upon by the prosecution agency is one Sudarshan Satyadeo Ramteke. He has referred to another Arun (Arun Bhelke) in his statement, whom he had met while working for an organisation in Chandrapur. He also declared himself as a party associate in his statement, and claims to have had been introduced to AF by another person. He has alleged that AF, Milind Teltumbde and Anil Nagpure had asked him to work with the said organisation.

14. VG has been earlier implicated in 19 cases for alleged crimes under the 1967 Act, the Arms Act 1959, and the Explosives Act 1884. But it has been submitted before us on his behalf that he has been acquitted in 17 out of these 19 cases. In respect of another case, his discharge application is pending. He was convicted in Case No.257/11 by the Sessions Judge, Nagpur under Section 25 (1B) of the Arms Act 1959, Sections 10(a)(i) and 13(1)(b) of the 1967 Act. There were charges against him also under Section 9(B) of the Explosives Act 1884, Sections 4(b) and 5 of the Explosives Substances Act, 1908 and Sections 10 (a)(ii)(iii)(iv), 10(b), 16, 17, 18, 20 and 23 of the 1967 Act and Sections 120B and 121A of 1860 Code. It has been emphasised by learned counsel for VG that his conviction is under appeal before the High Court, and the offences for which he has been convicted do not fall within offences incorporated in Chapters IV and VI of the 1967 Act. The other case is Sessions Case No.261/10 pending before the Sessions Court at Surat.

15. The prosecution has referred to some letters alleged to have been recovered from the computers or other devices of the co-accused persons in which activities of the two appellants have been referred to. We shall deal with these communications in the subsequent paragraphs of this judgment. Under ordinary circumstances in a petition for bail, we must point out, this exercise of analysis of evidence would not have been necessary. But in view of the restrictive provisions of Section 43D VERNON v. THE STATE OF MAHARASHTRA & ANR. [ANIRUDDHA BOSE, J.] of the 1967 Act, some element of evidence-analysis becomes inevitable.

16. The High Court in dealing with both these appeals had opined that the Investigating Agency had materials which prima facie showed that the applicants were part of a larger conspiracy attracting the offences contained in Sections 121A, 117 and 120B of the 1860 Code as well as Section 18 of the 1967 Act against them. The High Court had invoked the allegations of recruiting cadres for the banned organisation, to import the provisions of Section 18B of the 1967 Act. It further invoked Section 20 of the same statute on the ground that the appellants had been active members of the banned organisation. In the same way, the view of the High Court was that Sections 38 and 39 of the 1967 Act were attracted against the appellants. The High Court found that there were sufficient materials in the chargesheet against the appellants and there were reasonable grounds to believe that the accusation of commission of offences punishable under Chapters IV and VI of the 1967 Act was prima facie true in relation to both the appellants. The High Court, however, did not take into consideration, the factor of the appellants’ continued detention. But the judgment of the High Court was delivered on 15th October 2019, when the appellants were in detention for a period little over one year.

17. The NIA has also referred to a set of letters which are alleged to have been recovered from electronic devices of the co-accused persons in course of searches. The other set of documents on which the NIA has placed reliance, are literatures, pamphlets etc. some of which are meant to have been recovered from the residences of the appellants themselves. So far as the aforesaid letters are concerned, copies thereof have been annexed to the courter-affidavits of the NIA filed in connection with both the appeals. We shall refer to them in this judgment in the way they have been described numerically as annexures in NIA’s counter- affidavit in the appeal of AF. The first document is an undated letter addressed to Surendra, from an unnamed sender, marked as Annexure “R-6”. This letter is claimed to have been recovered from the computer of one of the co-accused and refers to Radical Student Union initiative by AF and VG. This letter requests the addressee to ask Arun to manage finances for legal defence of one Murgan. There is further reference to two other individuals who apparently have been inspired by the struggles of AF and VG.

18. The second document is a letter dated 18th April 2017, marked as Annexure “R-10”, addressed to one “Comrade Prakash” and is claimed to have been written by “R”. Prosecution claims “R” is Rona Wilson. Only reference to the two appellants in this document is that they, and others were equally concerned about the “two-line struggle” that was slowly taking shape on the urban front. The source of this letter has not been disclosed in the counter-affidavit. From the content of this letter, the Agency wants to establish that the appellants were senior leaders of the banned organisation.

19. The third document is a letter dated 25th September 2017, marked as Annexure “R-12”, written by “Comrade Prakash”, which is claimed to have been recovered from the computer of Surendra Gadling and addressee thereof is “Comrade Surendra”. Here also there is appreciation of activities of ‘Vernon’ and ‘Arun’ in motivating research scholars to get them involved in the revolutionary movement. About VG, it is recorded that one “Comrade G” has been asked to arrange APT to meet with Vernon.

20. As regards AF, his name appears in an undated letter, marked as Annexure “R-4”, addressed to Surendra by Darsu, which refers to organisation of a joint meeting by the addressee and Arun in Hyderabad. The next letter is purported to have been written to Prakash by Surendra on 5th November 2017 and is marked as Annexure “R-5”. It refers to establishing Indian Association of People’s Lawyer (“IAPL”) in Kerala for which discussion was held with Arun. According to the Agency, IAPL – a lawyer’s body is a frontal organisation of the banned organisation. This communication records a proposed visit to Kerala on International Human Rights Day by AF and the author thereof. This is followed by a further communication from Prakash to Surendra dated 16th July 2017 (“R-7”). This letter records a proposed visit of Arun to Chennai in connection with release of a detained party member as also raising of funds for the legal defence of detained persons. Here also, there is appreciation of AF and VG’s work. The next letter at Annexure “R-22” is claimed to have been written by Sudha Bharadwaj to Prakash and this letter relates to a seminar titled “Udta Loktantra against the UAPA Act” in which Arun was to participate. Lastly there is a letter at Annexure “R-14” written by one Anantwa to Comrade Monibai which relates to the celebration of 50th Anniversary of the Great Proletarian revolution and Naxalites organisation in Mumbai (Bombay) and records VERNON v. THE STATE OF MAHARASHTRA & ANR. [ANIRUDDHA BOSE, J.] that the party had sent revolutionary greetings to Comrades of various associations, including the appellant, Arun.

21. There is also a reference to an account statement alleged by the prosecution to have been recovered from the laptop of Rona Wilson (Annexure “R-3”). We reproduce below this statement in the same form as it has been represented in the said Annexure:- “Surendra=R=2.5L from Milind Shoma & amp; Sudhir = R and D = 1L from Surendra Amit B = R = 1.5 for CPDR canvasing And T = R = 90T from Surendra (Through Milind) Myself = R = 1.8L from Com Manoj Arun = R = 2L from Com Darsu VV = R = 5L from Com G.”

22. Apart from these letters and statements, various literatures, books etc. have been referred to by the prosecution which they claim to have recovered from the residences of AF and VG. These mainly involve writings on extreme left-wing ideology including its application to India. Similar materials are alleged to have been recovered from other accused persons as well. Recovery of different electronic communication devices like Mobile Phones, Tablets, Pen Drives and ancillary items is alleged to have been made. From these devices themselves, however, no evidence has been cited before us which would implicate AF and VG in terrorist acts and the other offences barring the letters on which emphasis has been laid by the agency. We have already referred to the letters which the law enforcement agency alleges to have recovered from the devices of other accused persons in which there are references to AF and VG. Call Detail Records have also been referred to for establishing location of the accused and also their inter-association.

23. In pursuance of the judgment of this Court in the case of Zahoor Ahmad Shah Watali (supra) the documents relied upon by the prosecution at this stage ought to prevail until overcome or disproved by other evidences. In the case of Dr. Anand Teltumbde -vs- National Investigation Agency and Another [2022 SCC OnLine Bom 5174] allegations were similar in nature against the petitioner therein. He was charged with all the Sections of the 1967 Act as has been done in the cases of AF and VG except Section 40. The Bombay High Court by a judgment delivered on 18th November 2022 had enlarged him on bail. The NIA’s petition for special leave to appeal [SLP(Crl) No. 11345/ 2022] against that judgment was dismissed by a Coordinate Bench of this Court on 25th November 2022.

24. As it would be evident from the analysis of the evidence cited by the NIA, the acts allegedly committed by the appellants can be categorised under three heads. The first is their association with a terrorist organisation which the prosecution claims from the letters and witness statements, particulars of which we have given above. But what we must be conscious of, while dealing with prima facie worth of these statements and documents is that none of them had been seized or recovered from the appellants but these recoveries are alleged to have been made from the co-accused. The second head of alleged offensive acts of the appellants is keeping literatures propagating violence and promoting overthrowing of a democratically elected government through armed struggle. But again, it is not the NIA’s case that either of the two appellants is the author of the materials found from their residences, as alleged. None of these literatures has been specifically proscribed so as to constitute an offence, just by keeping them. Thirdly, so far as AF is concerned, some materials point to handling of finances. But such finances, as per the materials through which the dealings are sought to be established, show that the transaction was mainly for the purpose of litigation on behalf of, it appears to us, detained party persons. The formation of or association with a legal front of the banned terrorist organisation has also been attributed to AF, in addition. The High Court while analysing each of these documents individually did not opine that there were reasonable grounds for believing that the accusations against such persons were not prima facie true. Those offences which come within Chapters IV and VI of the 1967 Act, charged against the appellants, are Sections 16, 17, 18, 18B, 20, 38, 39 and 40. We have summarised the nature of allegations reflected in the chargesheet as also the affidavit of the NIA. Now we shall have to ascertain if on the basis of these materials, the prosecution has made out reasonable grounds to persuade the Court to be satisfied that the accusations against the appellants are prima facie true. There is charge under Section 13 of the 1967 Act and certain offences under the 1860 Code against the appellants also. But we shall first deal with the appellants’ case in relation to charges made against them under the aforesaid provisions. VERNON v. THE STATE OF MAHARASHTRA & ANR. [ANIRUDDHA BOSE, J.]

25. Section 16 prescribes punishment for committing terrorist act and terrorist act has been defined in Section 15 of the 1967 statute. We have reproduced these provisions earlier in this judgment.

26. In none of the materials which have been referred to by the prosecution, the acts specified to in sub-clause (a) of Section 15(1) of the 1967 Act can be attributed to the appellants. Nor there is any allegation against them which would attract sub-clause (c) of Section 15(1) of the said statute. As regards the acts specified in Section 15(1) (b) thereof, some of the literature alleged to have been recovered from the appellants, by themselves give hint of propagation of such activities. But there is nothing against the appellants to prima facie establish that they had indulged in the activities which would constitute overawing any public functionary by means of criminal force or the show of criminal force or attempts by the appellants to do so. Neither there is allegation against them of causing death of any public functionary or attempt to cause death of such functionary. Mere holding of certain literatures through which violent acts may be propagated would not ipso facto attract the provisions of Section 15(1)(b) of the said Act. Thus, prima facie, in our opinion, we cannot reasonably come to a finding that any case against the appellants under Section 15(1) (b) of 1967 Act can be held to be true.

27. Section 17 of the 1967 Act deals with punishment for raising funds for terrorist acts. Here also the funds, dealing with which has been attributed to AF, cannot be connected to any terrorist act. In the case of Dr. Anand Teltumbde (supra) the same account statement was referred to. In respect of such allegations against Dr. Anand Teltumbde the Bombay High Court came to the following finding:- “42. Mr. Patil has vehemently argued that this statement from the earlier letter supports receipt of monies i.e. Rs. 90,000/- by Anand T. (Appellant) from Surendra (accused No. 3) who was authorized to provide funds for future programmes. On careful reading of the earlier letter dated 02.01.2018 and the aforementioned statement of account it is seen that there is a fallacy in the argument of NIA. Assuming that Anand T. is the Appellant himself and he received Rs. 90,000/- from Surendra through Milind, firstly it cannot be linked to the statement in the earlier letter dated 02.01.2018 since this account statement pertains to the year 2016 and or 2017. The document has a heading; viz; Party fund received in last year from C.C. Last year would invariably mean the account of 2016 as the title of this document is “Accounts2K17” which would mean Accounts for 2017". That apart requiring us to presume that Anand T. is the Appellant would require further corroboration and evidence. prima facie it appears that, the same has not been brought on record. This document is unsigned and has been recovered from the laptop one of the co-accused. Hence, at this prima facie stage we cannot presume that Anand T. i.e. the Appellant received Rs. 90,000/ – from Surendra Gadling as argued by NIA. We are afraid to state that we cannot agree with NIA’s contention.” (emphasis added)

28. Here we must point out that there is also a request made to Surendra from an unnamed person to ask AF to manage the financial expenses of “these cases”. The name of another Arun, with the surname Bhelke has surfaced in Annexure “R-19” to the NIA’s counter-affidavit in AF’s case. This is a copy of a witness statement. In absence of any form of corroboration at the prima facie stage it cannot be presumed that it was the same Arun (i.e., AF) who had received money from Darsu. The prosecution has also not produced any material to show that actual money was transmitted. The communication dated 5th November 2017 (“R-5”), purportedly addressed by Surendra to Prakash does not speak of any payment being made to AF. The rationale applied by the Bombay High Court in the above-quoted passage of the judgment in the case of Dr. Anand Teltumbde (supra), which has been sustained by this Court, ought to apply in the case of AF as well.

29. We have already observed that it is not possible for us to form an opinion that there are reasonable grounds for believing that the accusation against the appellant of committing or conspiring to commit terrorist act is prima facie true. The witness statements do not refer to any terrorist act alleged to have been committed by the appellants. The copies of the letters in which the appellants or any one of them have been referred, record only third-party response or reaction of the appellants’ activities contained in communications among different individuals. These have not been recovered from the appellants. Hence, these communications or content thereof have weak probative value or quality. That being the position, neither the provisions of Section 18 nor VERNON v. THE STATE OF MAHARASHTRA & ANR. [ANIRUDDHA BOSE, J.] 18B can be invoked against the appellants, prima facie, at this stage. The association of the appellants with the activities of the designated terrorist organisation is sought to be established through third party communications. Moreover, actual involvement of the appellants in any terrorist act has not surfaced from any of these communications. Nor there is any credible case of conspiracy to commit offences enumerated under chapters IV and VI of the 1967 Act. Mere participation in seminars by itself cannot constitute an offence under the bail-restricting Sections of the 1967 Act, with which they have been charged.

30. So far as application of Section 20 of the 1967 Act is concerned, the Bombay High Court in the case of Dr. Anand Teltumbde (supra) construed the said provision in the following manner:- “52. Section 20 cannot be interpreted to mean that merely being a member of a terrorist gang would entail such a member for the above punishment. What is important is the terrorist act and what is required for the Court to see is the material before the Court to show that such a person has been involved in or has indulged in a terrorist act. Terrorist act is very widely defined under Section 15. In the present case, seizure of the incriminating material as alluded to hereinabove does not in any manner prima facie leads to draw an inferance that, Appellant has committed or indulged in a ‘terrorist act’ as contemplated under Section 15 of the UAP Act.”

31. This judgment has not been interfered with by this Court and we also affirm this interpretation given to Section 20 of the 1967 Act for testing as to who would be a member of terrorist gang or terrorist organisation. Moreover, no material has been demonstrated by the NIA before us that the appellants are members of the terrorist organisation. AF’s involvement with IAPL as a frontal organisation of the Communist Party of India (Maoist) is sought to be established, and that has been referred to in the chargesheet as well. But the link between IAPL and the CPI (Maoist) has not been clearly demonstrated through any material. Reference to AF and VG as members of the CPI (Maoist) appears from the statement of protected witness, but that link is made in relation to events between the years 2002-2007, before the organisation was included in the First Schedule to the 1967 Act. No evidence of continued membership after the party was classified as a terrorist organisation has been brought to our notice. Nor is there any reliable evidence to link IAPL with CPI (Maoist) as its frontal organisation. We have already dealt with the position of the appellants vis-à-vis terrorist acts in earlier paragraphs of this judgment and we prima facie do not think that Section 20 can be made applicable against the appellants at this stage of the proceeding, on the basis of available materials. 32. “Terrorist act” as defined under Section 2(k) of the 1967 Act carries the meaning assigned to it in Section 15. This Section also stipulates that the expressions “terrorism” and “terrorist” shall be construed accordingly. This implies construction of these two expressions in the same way as has been done in Section 15. “terrorist organisation” has been independently defined in Section 2(m) to mean an organisation listed in the First Schedule or an organisation operating under the same name as an organisation so listed. But so far as the word “terrorist” is concerned, in this Section also, the interpretation thereof would be relatable to the same expression as used in Section 15. It is one of the basic rules of statutory construction that an expression used in different parts of a statute shall ordinarily convey the same meaning – unless contrary intention appears from different parts of the same enactment itself. We do not find any such contrary intention in the 1967 Act. 33. Section 38 of the 1967 Act carries the heading or title “offence relating to membership of a terrorist organisation”. As we have already observed, a terrorist act would have to be construed having regard to the meaning assigned to it in Section 15 thereof. We have given our interpretation to this provision earlier. “terrorist organisation” [as employed in Section 2(m)], in our opinion is not a mere nomenclature and this expression would mean an organisation that carries on or indulges in terrorist acts, as defined in said Section 15. The term terrorism, in view of the provisions of Section 2(k) of the said Act, ought to be interpreted in tandem with what is meant by ‘terrorist Act’ in Section 15 thereof. 34. In this context, to bring the appellants within the fold of Section 38 of the 1967 Act, the prosecution ought to have prima facie establish their association with intention to further the said organisation’s terrorist activities. It is only when such intention to further the terrorist activities VERNON v. THE STATE OF MAHARASHTRA & ANR. [ANIRUDDHA BOSE, J.] is established prima facie, appellants could be brought within the fold of the offence relating to membership of a terrorist organisation. To bring within the scope of Section 38 of the 1967 Act, it would not be sufficient to demonstrate that one is an associate or someone who professes to be associated with a terrorist organisation. But there must be intention to further the activities of such organisation on the part of the person implicated under such provision. But the same line of reasoning in respect of membership of a terrorist organisation under Section 20, ought to apply in respect of an alleged offender implicated in Section 38 of the 1967 Act. There must be evidence of there being intention to be involved in a terrorist act. So far as the appellants are concerned, at this stage there is no such evidence before us on which we can rely. 35. In three decisions of this Court, Hitendra Vishnu Thakur and Others -vs- State of Maharashtra and Others [(1994) 4 SCC 602], Niranjan Singh Karam Singh Punjabi, Advocate -vs- Jitendra Bhimraj Bijjaya and Others [(1990) 4 SCC 76] and Usmanbhai Dawoodbhai Memon and Others -vs- State of Gujarat [(1988) 2 SCC 271], the manner in which stringent provisions of a statute ought to be interpreted has been laid down. In all the three authorities, observation of this Court has been that the Court ought to carefully examine every case, before making an assessment if the Act would apply or not. When the statutes have stringent provisions the duty of the Court would be more onerous. Graver the offence, greater should be the care taken to see that the offence would fall within the four corners of the Act. Though these judgments were delivered while testing similar rigorous provisions under the Terrorist and Disruptive Activities (Prevention) Act, 1987, the same principle would apply in respect of the 1967 Act as well. 36. In the case of Zahoor Ahmad Shah Watali (supra), it has been held that the expression “prima facie true” would mean that the materials/evidence collated by the investigating agency in reference to the accusation against the accused concerned in the chargesheet must prevail, unless overcome or disproved by other evidence, and on the face of it, materials must show complicity of such accused in the commission of the stated offences. What this ratio contemplates is that on the face of it, the accusation against the accused ought to prevail. In our opinion, however, it would not satisfy the prima facie “test” unless there is at least surface-analysis of probative value of the evidence, at the stage of examining the question of granting bail and the quality or probative value satisfies the Court of its worth. In the case of the appellants, contents of the letters through which the appellants are sought to be implicated are in the nature of hearsay evidence, recovered from co-accused. Moreover, no covert or overt terrorist act has been attributed to the appellants in these letters, or any other material forming part of records of these two appeals. Reference to the activities of the accused are in the nature of ideological propagation and allegations of recruitment. No evidence of any of the persons who are alleged to have been recruited or have joined this “struggle” inspired by the appellants has been brought before us. Thus, we are unable to accept NIA’s contention that the appellants have committed the offence relating to support given to a terrorist organisation. 37. The second set of materials include the witness statements. There also no covert or overt act of terrorism has been attributed to the appellants by the three witnesses. We have dealt with the summary of their statements earlier in this judgment. We have also observed earlier that mere possession of the literature, even if the content thereof inspires or propagates violence, by itself cannot constitute any of the offences within Chapters IV and VI of the 1967 Act. 38. We have already analysed Sections 38 and 39 of the 1967 Act. The interpretation given by us to the phrase “intention to further activities” of terrorist organisation could also apply in the same way in relation to Section 39 of the same statute. There has been no credible evidence against the appellants of commission of any terrorist act or enter into conspiracy to do so to invoke the provisions of Section 43D (5) of the 1967 Act. 39. As far as raising funds for a terrorist organisation is concerned, we do not think at this stage, in absence of better evidence, the account statement is credible enough to justify invoking the bail-restricting clause by attracting Section 40 of the 1967 Act. 40. We are returning these findings as the restrictions on the Court while examining the question of bail under the 1967 Act is less stringent in comparison to the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985. We are not called upon, for granting a bail to an accused with commercial quantity of contraband article under the 1985 Act, to satisfy ourselves that there are reasonable grounds for believing that an accused is not guilty of such offence and that he is not VERNON v. THE STATE OF MAHARASHTRA & ANR. [ANIRUDDHA BOSE, J.] likely to commit any offence while on bail. Here, we have to satisfy ourselves that the specified offences alleged to have been committed by the appellants cannot be held to be prima facie true. 41. We shall now turn to the other offence under the 1967 Act, which is under Section 13 thereof, and the 1860 Code offences. The yardstick for justifying the appellants’ plea for bail is lighter in this context. The appellants are almost five years in detention. In the cases of K.A. Najeeb (supra) and Angela Harish Sontakke (supra), delay of trial was considered to be a relevant factor while examining the plea for bail of the accused. In the case of K.A. Najeeb (supra), in particular, this same provision, that is Section 43D (5) was involved. 42. In these two proceedings, the appellants have not crossed, as undertrials, a substantial term of the sentence that may have been ultimately imposed against them if the prosecution could establish the charges against them. But the fundamental proposition of law laid down in K.A. Najeeb (supra), that a bail-restricting clause cannot denude the jurisdiction of a Constitutional Court in testing if continued detention in a given case would breach the concept of liberty enshrined in Article 21 of the Constitution of India, would apply in a case where such a bail-restricting clause is being invoked on the basis of materials with prima facie low- probative value or quality. 43. In the case of Zahoor Ahmad Shah Watali (supra) reference was made to the judgment of Jayendra Saraswathi Swamigal -vs- State of Tamil Nadu [(2005) 2 SCC 13) in which, citing two earlier decisions of this court in the cases of State -vs- Jagjit Singh (AIR 1962 SC 253) and Gurcharan Singh -vs- State of (UT of Delhi) [(1978) 1 SCC 118), the factors for granting bail under normal circumstances were discussed. It was held that the nature and seriousness of the offences, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tempered with; the larger interest of the public or the State would be relevant factors for granting or rejecting bail. Juxtaposing the appellants’ case founded on Articles 14 and 21 of the Constitution of India with the aforesaid allegations and considering the fact that almost five years have lapsed since they were taken into custody, we are satisfied that the appellants have made out a case for granting bail. Allegations against them no doubt are serious, but for that reason alone bail cannot be denied to them. While dealing with the offences under Chapters IV and VI of the 1967 Act, we have referred to the materials available against them at this stage. These materials cannot justify continued detention of the appellants, pending final outcome of the case under the others provisions of the 1860 Code and the 1967 Act. 44. While forming our opinion over granting bail to the appellants, we have taken into account the fact that that VG was once earlier convicted involving offences, inter-alia, under 1967 Act and there is also a pending criminal case against him on the allegations of similar line of activities. Hence, we propose to impose appropriate conditions in respect of both, which they shall have to comply with, while on bail. 45. We accordingly set aside the impugned judgments and direct that the appellants be released on bail in respect of the cases(s) out of which the present appeals arise, on such terms and conditions the Special Court may consider fit and proper, if the appellants or any one of them are not wanted in respect of any other case. The conditions to be imposed by the Special Court shall include:- (a) Vernon Gonsalves, appellant in Criminal Appeal No.639 of 2023 and Arun Ferreira, appellant in Criminal Appeal No.640 of 2023, upon being enlarged on bail shall not leave the State of Maharashtra without obtaining permission from the Trial Court. (b) Both the appellants shall surrender their passports, if they possess so, during the period they remain on bail with the Investigating Officer of the NIA. (c) Both the appellants shall inform the Investigating Officer of the NIA, the addresses they shall reside in. (d) Both the appellants shall use only one Mobile Phone each, during the time they remain on bail and shall inform the Investigating Officer of the NIA, their respective mobile numbers. (e) Both the appellants shall also ensure that their Mobile Phones remain active and charged round the clock so that they remain constantly accessible throughout the period they remain on bail. VERNON v. THE STATE OF MAHARASHTRA & ANR. [ANIRUDDHA BOSE, J.] (f) During this period, that is the period during which they remain on bail, both the appellants shall keep the location status of their mobile phones active, 24 hours a day and their phones shall be paired with that of the Investigating Officer of the NIA to enable him, at any given time, to identify the appellants’ exact location. (g) Both the appellants shall report to the Station House Officer of the Police Station within whose jurisdiction they shall reside while on bail once a week. 46. In the event there is breach of any of these conditions, or any of the conditions to be imposed by the Trial Court independently, it would be open to the prosecution to seek cancellation of the bail of each or any of the defaulting appellants without any further reference to this Court. Similarly, if the appellants seek to threaten or otherwise influence any of the witnesses, whether directly or indirectly, then also the prosecution shall be at liberty to seek cancellation of bail of the concerned appellant by making appropriate application before the Trial Court. 47. The appeals stand allowed in the above terms. 48. Pending application(s), if any, shall stand disposed of. Divya Pandey Appeals allowed. (Assisted by : Roopanshi Virang, LCRA)