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2013 GAULT 2 980 .

Oinam Moniton Singha v. National Investigating Agency

Gauhati High Court (Oct 9, 2012)

CASE NO.
Crl Appeal 189 of 2011

ADVOCATES

For the Appellant: D.K. Mishra

Sr. Advocate

A. Talukdar

K.K. Kalita

M.J. Nurnummawii

B. Prasad

J.P. Das

H.N. Baishnav

Advocates. For the Respondent: D.K. Das

SC

NIA

C. Patowary

Advocate.

JUDGES

Mr. Justice I.A. Ansari

Mr. Justice A.C. Upadhyay

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Important Paras

1. (15) Referring to the decision of this Court, in the case of co-accused S. Rakesh Singh (Crl App No

146/2011), learned counsel for the appellant has submitted that mere entry, in the statement of account of

UNLF, by itself, cannot be held to be an adequate evidence on which conviction of the appellant can be

based. Learned counsel for the appellant has contended that NIA has miserably failed to establish that the

appellant is an active member of UNLF in order to implicate and convict the appellant under Section 20 of

the UA (P) Act. Learned counsel for the appellant has submitted that Smti. M Longdhoni Devi and S.

Rakesh Singh, who were similarly held as active members of UNLF, have already been extended the

privilege of regular bail by this Court.

Summary

1. 2010, the appellant preferred an appeal before this Court, which came to be registered as Crl.

2. The appellant filed a fresh application before the learned Special Judge, NIA, which came to be

registered as Bail Application No. 24/2011.

3. The UNLF forces them to part with a percentage of food grains as well as government money by

threatening to kill them and indulges in extortion.

4. UNLF indulges in extortion of money from the government servants by putting them under threat of

death.

5. 2010, in the late evening, the police raided the rented house of the appellant and made enquiries from

the appellant during which the appellant allegedly confessed that he is an active member of banned

organization UNLF of Manipur and holding a post in the organization.

6. (12) It has been pointed out, on behalf of the appellant, that the NIA has stated that AAMSU is the

frontal organization of UNLF and PW105, being its President, ought to have also been made an accused

or an approver on the basis of the aforesaid statement made by him that AAMSU was receiving money

from UNLF, but PW1 has been left out in order to use him against the present appellant.

7. (14) It has been submitted, on behalf of the appellant, that there is no material on record to suggest that

appellant, directly or indirectly, raised or collected funds for any activity of the UNLF.

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8. Even assuming that the e-mails indicating financial transactions between the UNLF and the appellant

are true, these do not relate to funds collected or raised by the appellant or provided by him to any person

for the commission of any terrorist act.

9. Learned counsel for the appellant has contended that NIA has miserably failed to establish that the

appellant is an active member of UNLF in order to implicate and convict the appellant under Section 20 of

the UA (P) Act.

10. It has been submitted, on behalf of the NIA, that the investigation reveals that United National

Liberation Front, (hereinafter called the UNLF), is involved in criminal conspiracy to wage war against

India by indulging in fund raising and heinous terrorist acts, threatening the unity, integrity, security and

sovereignty of India by striking terror, causing death, injury, loss, damage and destruction of properties.

11. Referring to the statements of PWs 2, 22, 23 together with D-28, D-29, learned standing counsel, NIA,

contended that the materials so found show that the appellant is an active member of the terrorist

organization, UNLF, in the garb of students' organization like NEMSO and AAMSU to run the activities of

the UNLF and the appellant is an integral part of the conspiracy hatched by the UNLF to wage war against

the State and to commit terrorist acts.

12. (32) Coming to the statement of witnesses, we find that the statement of PW 105, Sri Lourembam

Surendar Singh, prima facie, shows that the appellant used to muster funds from UNLF.

13. (35) It has also been argued by the learned counsel for the appellant, as pointed out above, that the

there are no materials to justify that the appellant was an active member of UNLF.

14. The appellant, having alleged to have committed an offence under the UA (P) Act, the term

membership must be understood in the light of the definition of 'member' as provided under Section 38 of

the UA (P) Act.

15. The definition, under TADA Act necessitated judicial interpretation of the term 'member'.

16. (40) Naturally if a person, such as, the present appellant, associated himself in the activities of a

terrorist organization, such as, the UNLF, with the intention to further its cause with the help of its frontal

organization, such as, AMSU, indulged in economic blockade in terms of e-mail, which is mentioned

above, cannot, but be described, under Section 38 of the UA (P) Act, as a member of a terrorist

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 organization.

17. (41) In the present case, when there is evidence of even one witness to show that the appellant used

to receive funds from the UNLF to carry out activities, as directed by the UNLF, under the colour of

student activities, and the statement, coming from one of the office bearers of the frontal organization

cannot, at this stage, be questioned.

18. There being materials to justify that the appellant used to receive funds from UNLF and the funds, so

received by the appellant, were spent for furthering the activities of the UNLF, the appellant cannot but be

regarded as an active member of the said terrorist organization.

19. (43) an inference, though tentative, can be drawn that the appellant is a member of UNLF, which is an

offence punishable under Section 38 of the UA (P) Act, falling under Chapter VI of the UA (P) Act.

20. (45) We may pause to point out that though the confession, made by the accused-appellant, to the

police, in the presence of PW21, was not admissible in evidence, it was an important piece of material for

further investigation of the case and the statement, so made, which provided the lead, could not have

been ignored or brushed aside, while considering the bail application by the learned trial Court.

21. It is not necessary that the person must intend to aid a terrorist act in order to be held liable for an

offence under Section 18 of the Act of 2004; it would be sufficient, for the purpose of attracting the penal

provisions of Section 18, if the prosecution is able to prove that an accused had the knowledge that his

act or omission would facilitate the commission of a terrorist act.

JUDGMENT

A.C. Upadhyay, J.

(1) Accused-appellant has filed this appeal, under Section 21 (4) of the National Investigation Agency Act,

2008 (in short, 'nia Act'), against the order, dated 13. 09. 2011, passed by the learned Special Judge, NIA,

Assam, Guwahati, in Misc. Bail Application No. 24/2011, in connection with Special NIA Case No. 1/2010,

under Sections 16/17/18/20 of Unlawful Activities (Prevention) Act, 1967 (in short, 'ua (P) Act'), arising out

of Noonmati Police Station Case No. 159/2010 registered under Section 120 (B)/121/121 (A)/122 of IPC,

read with Section 10/13 of UA (P) Act, whereby the prayer of the accused-appellant, Oinam Moniton

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Singha, to allow him to go, on bail, was rejected.

(2) The brief facts of the case are as follows: the appellant was arrested, on 8. 9. 2010, in connection with

the aforenoted case and he has been in jail custody for nearly two years. On earlier occasion, the

appellant had filed a bail application, which gave rise to Misc. Case No. 2/2010. However, by order, dated

07. 10. 2010, the said bail application was rejected by the learned Special Judge, NIA. Against the said

order, dated 7. 10. 2010, the appellant preferred an appeal before this Court, which came to be registered

as Crl. Appeal No. 162/2010. The appeal was rejected by this Court by order, dated 08. 11. 2010.

(3) On 14. 02. 2011, the National Investigating Agency submitted its charge-sheet in NIA Case No.

1/2010. All necessary papers and relevant documents, relied upon by the prosecution, were supplied to

the accused on 07. 03. 2011. Thereafter, the appellant filed a fresh application before the learned Special

Judge, NIA, which came to be registered as Bail Application No. 24/2011. However, by order, dated 13.

09. 2011, the learned Special Judge, NIA, rejected the said bail application and it is against this order of

denial of bail that the appellant has preferred the present Appeal.

(4) It may also be indicated herein that during the pendency of the present appeal, the NIA has further

submitted, in the month of February, 2012, a supplementary charge-sheet in the aforesaid case.

(5) The facts, as disclosed during investigation of the case and as projected by the prosecution, may be

stated as follows:-

(i) The case, which has led to filing of the present appeal, is registered against the members of a

proscribed terrorist outfit, namely, United Liberation front (herein-after referred as 'unlf'), involved in

criminal conspiracy to wage war against India by indulging in fund raising and heinous terrorist acts

threatening the unity, integrity, security and sovereignty of India by striking terror by causing death and

injury to people, loss, damage and destruction of property, both private and public.

(ii) The UNLF is declared as a terrorist organization in terms of the Schedule to the UA (P) Act 1967 as

amended by Act 35 of 2008.

(iii) The UNLF, as a terrorist organization, is involved, in Manipur, in several violent incidents of maiming,

murder, kidnapping, weapon-snatching, extortion and so on. During the course of investigation, details of

149 violent incidents, committed by UNLF, were obtained from the lawful retrieval of e-mail

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communications of the accused persons. Moreover, further FIRs, relating to 29 cases of the 149 incidents

mentioned above, have been obtained, which have established that the members of UNLF have been

indulging in terrorist acts in pursuance of UNLF's stated objective of fighting the Indian State.

(iv) The UNLF, as a terrorist organization, collects funds for its terrorist activities from public functionaries,

Governments servants working in various departments including, but not limited to, Public Works

Department, Flood Control Department, Food Corporation of India, etc. The UNLF forces them to part

with a percentage of food grains as well as government money by threatening to kill them and, thus,

indulges in extortion. UNLF also overawes, by means of criminal force and show of criminal force, such

as, throwing of grenades at public servants and their residential premises. UNLF indulges in causing

death and injuries to persons. Thus, UNLF indulges in extortion of money from the government servants

by putting them under threat of death.

(v) UNLF prepares budgets listing various sources of revenue. Generally, the sources of funds are

extortion from Central Govt. developments funds, FCI, Food and Civil Supply Department and Flood

Control Department of Manipur. UNLF is involved in extortion of funds from the transporters, operating in

Manipur, by threatening to burn down the buses and harming the operators physically thereby leading to

disruption of supply and services. UNLF has also been involved in collecting 5% of the rice, which is

meant to be sold to poor people on highly subsidized rate in Manipur.

(vi) UNLF has been involved in procuring highly sophisticated weapons to wage war against India.

Materials exist on record to show that UNLF has been trying to purchase, and has actually purchased,

sophisticated weapons including, but not limited to, AK 47 Rifles, M16 Rifles and so on from foreign

countries. UNLF has raised armed cadres, in the state of Manipur as well as in the Republic of the Union

of Myanmar, in tune with that of the Indian army. The UNLF cadres are equipped with highly sophisticated

weapons procured from foreign countries.

(vii) Towards the execution of such conspiracy, as mentioned in the preceding paragraphs, the top

echelons of UNLF, in order to conveniently carry out their activities, selected Guwahati city as their

operational base, because the city provided reasonable anonymity and security to the cadres of UNLF.

The funds, thus, raised through extortions, in Manipur, were brought to Guwahati through human couriers

and, then, sent to countries like the Republic of Nepal, the People's Republic of Bangladesh, and the

Republic of Union of Myanmar and so on for the UNLF cadres and their agents based therein and, in

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pursuance of the said conspiracy, the accused persons, including the present appellant, extensively used

internet connection, mobile phones and, in some cases, satellite phones too.

(viii) In the present case, sufficient oral and documentary materials exist including, but not limited to,

lawfully retrieved e-mails, call detail analysis and documents pertaining to different bank transactions of

the said proscribed terrorist outfit. CFSL reports about the material objects, seized from the accused

persons, provide incontrovertible evidence to substantiate the criminal conspiracy of the UNLF as

aforementioned. The material objects seized, especially, the Indian currency seized from the

aforementioned accused persons have been found to be illegally collected towards the proceeds for the

ongoing conspiracy of waging war against the country.

(ix) In pursuance of the said conspiracy, materials have been brought on record from the lawful retrieval of

the e-mails, which reveal (a) Inter-linkages amongst the accused persons (b) A detailed account of the

budget proposals and extortions made at the behest of UNLF (c) Visit to China to procure arms (d)

Violence committed, and directed to be committed, by UNLF (e) Efforts made to release the arrested

accused persons. f) Details of the bank accounts in India and abroad (g) Conversion of Indian currency

into US dollars (h) Names and photographs of arrested accused persons in combat uniforms and

weapons, and (i) Details of immovable and movable assets raised from the proceeds of the funds

collected through extortion.

(6) The accusations against the appellant are contained in paragraph 17. 29 of the charge-sheet, which

are as follows-

(i) The appellant, in the garb of a member of a student organization, namely, North-East Manipuri

Students Union (NEMSU), which was being run and funded by UNLF, had received funds , extorted by

UNLF, to carry out activities, such as, disruption of supply to the community and blockade of NH-39

thereby threatening the unity, integrity and sovereignty of India;

(ii) The appellant's name has been discussed in the e-mails exchanged between Moirangthem Joy Singh

@ Joyjao @nongyai @nilachandra (A-18) and Raj Kumar Meghan @ Sanayaima (A-19).

(iii) The appellant, in association with Ningombam Dilip Singh @ Ibochou @ Mani (A-16), in particular, and

with other co-conspirator arrested, in general, received funds to carry out the anti-national activities by

threatening the unity, integrity and sovereignty of the country.

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(7) In order to substantiate the aforesaid allegations, apart from other materials, the NIA has also relied

upon statements of the following witnesses namely:-

PW. 2- S. I. Someshwar Dutta, Noonmati P. S. PW. 21- Akshay Kumar Das, Landlord of appellant PW. 22-

Chandra Kakoti, tenant of PW 21 and PW. 23- Hari Prasad Karmakar, tenant of PW 21.

(8) Someshwar Dutta (PW 2), who was a Sub-Inspector of Noonmati P. S. , at the relevant point of time,

stated that a team, led by S. I Jyoti Mili of Dispur Police Station, raided, on 08. 09. 2010, the house of PW

21, wherein the appellant resided, as tenant, and seized several articles including laptop, SIM cards,

handycam, etc. , by Dispur PS GDE No. 430, dated 08. 09. 2010 (D-29).

(9) Ws. 21, 22 and 23, who are the landlord and co-tenants of the appellant, have stated, in their

statements, under Section 161 Cr. P. C. , that, on 20. 08. 2010, in the late evening, the police raided the

rented house of the appellant and made enquiries from the appellant during which the appellant allegedly

confessed that he is an active member of banned organization UNLF of Manipur and holding a post in the

organization.

(10) ARGUMENTS : It has been submitted, on behalf of the appellant, that the NIA has relied upon the

statement of PW 40, PW 44 and PW 54 to link the appellant with the activities of the UNLF falsely alleging

therein that the appellant is an active member of UNLF, though the allegation that the appellant is an

active member of UNLF is based on conjectures and surmises and not on evidence.

(11) Learned counsel for the appellant has submitted that the NIA, having realized that there is total lack

of evidence to implicate the appellant with the UNLF, forced PW. 105, Sri Lourembam Surendar Singh,

President of AMSU, to give statement against the appellant.

(12) It has been pointed out, on behalf of the appellant, that the NIA has stated that AAMSU is the frontal

organization of UNLF and, therefore, PW105, being its President, ought to have also been made an

accused or an approver on the basis of the aforesaid statement made by him that AAMSU was receiving

money from UNLF, but PW1 has been left out in order to use him against the present appellant.

(13) Learned counsel for the appellant has disputed the allegation of attributing certain electronic

communications to the appellant pointing out the discrepancy in the seizure of laptop.

(14) It has been submitted, on behalf of the appellant, that there is no material on record to suggest that

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appellant, directly or indirectly, raised or collected funds for any activity of the UNLF. On the contrary,

according to the learned counsel for the appellant, the NIA has falsely alleged that the appellant, being the

President of NEMSO, was the recipient of funds from the UNLF. Therefore, even assuming that the

e-mails indicating financial transactions between the UNLF and the appellant are true, these do not relate

to funds collected or raised by the appellant or provided by him to any person for the commission of any

terrorist act.

(15) Referring to the decision of this Court, in the case of co-accused S. Rakesh Singh (Crl App No

146/2011), learned counsel for the appellant has submitted that mere entry, in the statement of account of

UNLF, by itself, cannot be held to be an adequate evidence on which conviction of the appellant can be

based. Learned counsel for the appellant has contended that NIA has miserably failed to establish that the

appellant is an active member of UNLF in order to implicate and convict the appellant under Section 20 of

the UA (P) Act. Learned counsel for the appellant has submitted that Smti. M Longdhoni Devi and S.

Rakesh Singh, who were similarly held as active members of UNLF, have already been extended the

privilege of regular bail by this Court.

(16) In reply to the submissions, made on behalf of the appellant, learned Standing counsel, NIA, submits

that UNLF is a declared terrorist organization in terms of the Schedule of the UA (P) Act and the appellant

is an active member of the said organization. It has been submitted, on behalf of the NIA, that the

investigation reveals that United National Liberation Front, (hereinafter called the UNLF), is involved in

criminal conspiracy to wage war against India by indulging in fund raising and heinous terrorist acts,

threatening the unity, integrity, security and sovereignty of India by striking terror, causing, thus, death,

injury, loss, damage and destruction of properties.

(17) It has been pointed out, on behalf of the NIA, that the UNLF, as a terrorist organization, is involved in

several violent incidents of maiming, murder, kidnapping, weapon snatching, extortion and so on in

Manipur. During the course of investigation of the instant case, details of 149 violent incidents, as

committed by UNLF, were obtained from the lawful retrieval of the e-mail communications of the accused

persons and, further, FIRs, relating to 29 cases of the 149 incidents mentioned hereinbefore, have been

obtained, which establish that the members of UNLF have been indulging in terrorist acts in pursuance of

UNLF's stated objectives of fighting the Indian State. The statement of PW 44 and D-21 as well as D-65

corroborate the facts so indicated.

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(18) By referring to the documents and papers relied upon by the prosecution, it has been submitted, on

behalf of the NIA, that the UNLF, as a terrorist organization, collects funds for its terrorist activities from

public functionaries, Government servants of various departments including, but not limited to, Public

Work Department, Flood Control Department and Food Corporation of India. The UNLF forces them to

part with a percentage of food grains as well as government money by threatening to kill and, thus,

indulges in extortion. UNLF also overawes, by means of criminal force and show of criminal force, such

as, throwing of grenades at public servants and their residential premises. UNLF indulges in causing

death and injuries to several persons. UNLF has as armed wing named as Manipur People's Army (MPA)

and as per the evidence collected so far, this armed wing of UNLF has killed hundreds of people and

injured many more. UNLF is also involved in extortion of money from the government servants by putting

them under the threat of death.

(19) Referring to the statements of PW. 34, 39, 41, 56, 57 and the documents in E. 64 (2 and 3), E. 72 (2

to 18), learned standing counsel, NIA, has submitted that the UNLF, for carrying out their activities,

prepared yearly budget raising various sources of revenue and the sources of funds included extortion

from Central Govt. departments, State Govt. departments, businessmen and professionals so as to help

UNLF procure highly sophisticated weapons to wage war against the Govt. and to terrorize the people.

(20) Referring to the above materials, it has been submitted, on behalf of the NIA, that UNLF purchased

AK 47, M 16 rifles, etc, from foreign countries. Over and above, it also raised armed cadres in the state of

Manipur as well as in the Republic of the Union of Myanmar in tune with that of the Indian army. The

UNLF cadres are equipped with highly sophisticated weapons procured from foreign countries. Such facts

stand well established from the Document E-13 (3), e-mails and the statements of PW44 and 45.

(21) It has been contended, on behalf of NIA, that the above activities of UNLF has established as to how,

over the years, systematic extortion of funds from different Central and State govt. schemes were carried

out and used for terrorist activities.

(22) Referring to the above documents, learned counsel for the NIA has also pointed out that investigation

has established as to how UNLF has been raising arms; the manner in which the UNLF distributed

weapons for terrorist acts to its cadres recruited for the purpose and for waging war against the nation.

Referring to the statements of PWs 2, 22, 23 together with D-28, D-29, learned standing counsel, NIA,

contended that the materials so found show that the appellant is an active member of the terrorist

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organization, UNLF, in the garb of students' organization like NEMSO and AAMSU to run the activities of

the UNLF and the appellant is, thus, an integral part of the conspiracy hatched by the UNLF to wage war

against the State and to commit terrorist acts.

(23) The NIA has alleged that the appellant, at the behest of UNLF and with close proximity of UNLF top

echelons, fully committed to render his services for the outfit and his services were being utilized by the

outfit as mouthpiece to garner and mobilize mass support through media outlets and systemic

campaigning using the platform of frontal organizations, such as, AMSU (All Manipuri Students Union)

and NEMSO (North East Manipuri Student Organization) working over ground as white collar gentlemen.

(24) It has been pointed out, on behalf of the NIA, that during investigation, it came to light that the

appellant acted as perpetrator in mobilizing support and induction of innocent (Meitei) community for

UNLF outfit in persuasion of various vicious plans organizing meetings, at secret places, with top leaders

of the outfit.

(25) With reference to the ground taken in para (ii), it is submitted that in April 2010, a stretch of NH-39

(NH 39 starts from Numuligarh, Assam runs through Dimapur-Kohima-Imphal and ends at Moreh), which

connects Dimapur with Imphal, was blocked by Naga Groups, resulting in restriction of goods

transportation to Imphal via Dimapur. Initially this economic blockade continued for 68 days. The UNLF,

with their aim and object of secession of Manipur from India, utilized the situation by creating an anti-India

atmosphere, in Manipur, by convincing the general public of Manipuri people that the Indian Union has

had been neglecting the needs and necessities of the Manipuri people. The UNLF, in order to provoke the

anti Naga as well as anti India sentiments, in the minds of general public of Manipur, started its campaign

through its Frontal Organizations, such as, AMSU and NEMSU.

(26) UNLF gave its Frontal Organizations, especially, AMSU and NEMSO, a twofold task on the issue of

NH 39 blockade; first, for conducting Public Meetings, Demonstrations, Protest March, etc. , and second,

for disruptive and violent activities.

(27) It has been pointed out, on behalf of the NIA, that the UNLF wanted to block the starting stretch of

NH 39 (i. e. from Numuli-garh, Assam, to Dimapur), so that the supply of goods to the State of Nagaland

from Assam side is stopped. For this purpose, they activated their Frontal Organizations, Students Unions

and NGOs. This is evident from the documents lawfully recovered from e-mail accounts of R K Meghen

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(A19) and Nongyai (A18) based on their disclosure statements. In one such e-mail, Chairman of the

UNLF, Meghen (A 19), clearly writes to the organiz-ational Secretary, Nongyai (A18), that:

"when we have decided that no truck should run in NH 39, then how come some drivers are running their

truck. Tell AAMSU (All Assam Manipuri Students' Union) to burn down 1 or 2 trucks so that no one dares

to run the truck that side and the incident of Ardonmust get and effective media coverage."

In response to this letter Nongyai (A18) writes that:

"i will tell AAMSU to burn down 1 or 2 truck of non-Manipuri's of Assam side of NH 39.

"Copy of the email E-98 will show the above. Copy of the email E-98 would support the above fact."

(Emphasis is supplied)

(28) It has been pointed out by the prosecution that subsequently, trucks were burnt on NH 39 during the

aforesaid period in due compliance of the above directions.

ROLE OF THE APPELLANT (a) Membership of UNLF, a terrorist organization.

(29) Facts, as prima facie revealed from the prosecution case, by producing the statement of the

witnesses, the documents e. 13 (3) and the lawful retrieval of e-mails recovered, coupled with the

statement of PW. 44 and 45, support that UNLF was collecting funds by resorting to various extortion

activities and such funds were collected not only from private individuals, but also from transporters,

businessmen, Central and State Govt. Departments. By producing the documents e. 64 (2 and 3 and E.

72 (2 to 18), the lawful retrieval of e-mails, NIA has prima facie shown the visits of its cadres to China to

procure arms and violent activities carried out by UNLF. The scrutiny of e-mails, prima facie, provides

materials to substantiate that UNLF waging war against the Nation.

(30) That the above activities prima-facie establish as to how UNLF has, over the years, systematically

extorted funds from different central and State government sponsored schemes and used them for

terrorist activities. It is also seen as to how in order to procure arms and ammunitions from the

neighboring countries, UNLF had established contacts with foreign agents. It would further transpire as to

how UNLF, as a part of its ongoing conspiracy, had struck deal with foreign agents to provide information

on India's missile technologies. Apparently, the investigation has depicted as to how UNLF had raised

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funds, distributed the "proceeds of terrorism" amongst its cadres, recruited and trained its manpower in

the State of Manipur and outside for waging war against the country. As revealed by the prosecution, the

activities of UNLF, pertaining to the aforementioned activities, have become a major challenge to the

sovereignty and security of India.

(31) In any view of the matter, the fact that UNLF is a scheduled terrorist organization has not been

disputed before us. This relieves the Court from making a threadbare inquiry into the activities of the

UNLF, because commission of terrorist activities, in an organized manner, is a condition precedent for

declaring an organization as a terrorist organization as envisaged by the provisions of Chapter VI of the

UA (P) Act.

(32) Coming to the statement of witnesses, we find that the statement of PW 105, Sri Lourembam

Surendar Singh, prima facie, shows that the appellant used to muster funds from UNLF. The statement, in

brief, reads as follows:

"on being asked , I say knew that Maniton was linked with ULNLF and has been receiving money from

UNLF for student activities, but as we had no other fixed source of funding for Union's activities, we had

nooter choice except ignoring this fact. Maniton requested me more than once to organize protest to

counter economic blockade on NH-39 which was done by NSCN (IM). Initially I refused but as he was

fully funding this, I presented a memorandum for Prime Minister of India through Dy Commissioner of

Cacher District after organizing a peace rally. Later on I came to know that this instruction was given to

him by UNLF. In September 2010, he was arrested by Assam Police and subsequently by NIA as a

member of UNLF. I have produced photocopy of the abovementioned memorandum and relevant budgets

submitted to Moniton for sanction, to NIA."

(33) Though it has been argued by the learned counsel for the appellant that the statement of PW 105 has

been obtained in a mala fide manner and that he could not have been possibly cited as a witness, the fact

remains a fact that, as on today, there exists, on record, a statement of a person, cited as witness, who

has stated that the appellant used to receive funds from UNLF and it was under the instructions of UNLF

that activities, like economic blockade, were carried out.

(34) The appellant, by his act of inviting and ensuring support for economic blockade, under the

instructions of UNLF, committed acts in order to counter the constitutional scheme of governance in India

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and, until shown otherwise, the appellant's acts, in the manner as have been done to further the activities

of UNLF, threaten the very sovereignty and integrity of India.

(35) It has also been argued by the learned counsel for the appellant, as pointed out above, that the there

are no materials to justify that the appellant was an active member of UNLF.

(36) The question of active membership, as argued by the learned Counsel for the appellant, also arose in

the case of Anup Bhuyan, Criminal Appeal No. 889 of 2007, but the ratio of the said case, decided by the

Supreme Court, may not be applicable to the present set of facts, because the case of Anup Bhuyan

(supra) dealt with membership of a terrorist organization under Section 3 (5) of the TADA Act, wherein the

term 'membership' was not defined; whereas the term 'membership' has been defined in the present UA

(P) Act. The appellant, having alleged to have committed an offence under the UA (P) Act, the term

membership must be understood in the light of the definition of 'member' as provided under Section 38 of

the UA (P) Act.

(37) Section 38 of the UA (P) Act provides the following definition;

(1) A person, who associates himself, or professes to be associated, with a terrorist organisation with

intention to further its activities, commits an offence relating to membership of a terrorist organisation:

Provided that this sub-section shall not apply where the person charged is able to prove- (a) that the

organisation was not declared as a terrorist organisation at the time when he became a member or began

to profess to be a member; and (b) that he has not taken part in the activities of the organisation at any

time during its inclusion in the Schedule as a terrorist organisation.

(2) A person, who commits the offence relating to membership of a terrorist organisation under

sub-section (1), shall be punishable with imprisonment for a term not exceeding ten years, or with fine, or

with both.

(38) Section 3 (5) of the TADA Act simply provided punishment for being member of a terrorist

organization or a terrorist gang. The definition, under TADA Act, thus, necessitated judicial interpretation

of the term 'member'. So far as membership of a terrorist organisation, under the UA (P) Act is concerned,

Section 38, now, provides that if a person associates himself, or professes to be associated, with a

terrorist organisation with intention to further its activities, he becomes a 'member' of the terrorist

organisation. The discerning feature lies in the terms associates himself, or professes to be associated.

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Section 38, on a bare reading, conceives two different categories of persons, who can be termed as

members. Firstly, those, who associate themselves with such an organization and, secondly, those, who

profess to be associated with such an organization.

(39) Thus, even a person, who is an ideologue of a terrorist organisation and distributes literatures and

pamphlets to publicise the activities of such an organization with intention to further the activities of such

an organization, can be termed as a member. It is not conceivable that, in order to attract the label of

member, under Section 38, a person shall be actually involved in carrying out terrorist activities.

(40) Naturally, therefore, if a person, such as, the present appellant, associated himself in the activities of

a terrorist organization, such as, the UNLF, with the intention to further its cause with the help of its frontal

organization, such as, AMSU, indulged in economic blockade in terms of e-mail, which is mentioned

above, cannot, but be described, under Section 38 of the UA (P) Act, as a member of a terrorist

organization.

(41) In the present case, when there is evidence of even one witness to show that the appellant used to

receive funds from the UNLF to carry out activities, as directed by the UNLF, under the colour of student

activities, and the statement, coming from one of the office bearers of the frontal organization, in this

regard, cannot, at this stage, be questioned. In other words, the statement, which has come from the

office bearer of AMSU, has to be assumed as true until shown otherwise. Thus, there being materials to

justify that the appellant used to receive funds from UNLF and the funds, so received by the appellant,

were spent for furthering the activities of the UNLF, the appellant cannot but be regarded as an active

member of the said terrorist organization.

(42) The materials, including the retrieved e-mails, collected during investigation, also show, until proved

otherwise, that budget was allocated to the members of different organizations, such as, AAMSU and

NEMSU, and the appellant, as the President of NEMSU, received huge amount of money to take up such

activities as directed by the UNLF from time to time.

(43) Thus, an inference, though tentative, can be drawn that the appellant is a member of UNLF, which is

an offence punishable under Section 38 of the UA (P) Act, falling under Chapter VI of the UA (P) Act. (b)

Conspiracy with UNLF.

(44) According to the prosecution's case, the top echelons of UNLF, for the fulfillment of conspiracy and in

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order to conveniently carry out their activities, selected Guwahati city as safe and secure place. The

funds, raised in Manipur by extortion, were brought to Guwahati by human couriers and sent to Republic

of Nepal, Republic of Bangladesh and Republic of Myanmar for UNLF. The present appellant was

arrested, on 08-9-10, from a rented house, at Hastinapur, Naray-anpur, House No-3, Dispur. When

search was made by the Assam police, many suspicious articles had been seized from the possession of

the accused like- (i). One Accer Laptop, (ii). One Spice Mobile Hans Set, (iii). One Aircel SIM card, (iv).

Two Nos of Airtel SIM and one Vodafone SIM, (v). One Maxter 80gb Hard Disk, (vi). One Panasonic

Handy Cam, (vii). One Sony Digital Camera, (viii). Two Nos of CDs (ix). One Battery Charger with Sony

Digital Camera Battery etc. This has been stated by PW-21, Sri Akshay Kumar Das, a retired Assistant

Engineer, Hastinapur, Narayanpur of Dispur. He is the landlord of the house from where the present

appellant was arrested by the Assam Police. The relevant portion of the statement of PW-21 are as

follows.-

"it is fact that on 8 Sept 2010 at late night, local police raided the rented room of in possession of Sh.

Moniton Singha of my house. During that time myself and other tenant were present at our respective

rooms. In front of us police officers made enquiries from Moniton Singha during which he revealed that he

is a active member of banned organization UNLF of Monipur and holding the post in the organization.

Thereafter police officers requested myself and one tenant namely Chandrajyoti Kakaty to witness the

search of room of in possession on Moniton Singha.

(45) We may pause here to point out that though the confession, made by the accused-appellant, to the

police, in the presence of PW21, was not admissible in evidence, it was, nonetheless, an important piece

of material for further investigation of the case and, consequently, the statement, so made, which provided

the lead, could not have been ignored or brushed aside, while considering the bail application by the

learned trial Court.

(46) The Interim Forensic Report, as mentioned, has volume of data pertaining to UNLF and has been

retrieved from the seized electronic items. The Statements of PW-21, 22, and 23, D-28, the Arrest and

Inspection Memo and D-29, Seizure list of Recovery, prima facie lend credence to the above.

(47) So far as the offence of conspiracy under the UA (P), Act is concerned, the relevant provisions

underwent some amendments in the year 2004 and in the year 2008. The changes brought with respect

to offence of conspiracy are as follows:

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CHANGES IN THE OFFENCE RELA-TING TO CONSPIRACY ETC. TO COMMIT TERRORIST ACT

(48) Under the Act of 2004, Section 18 read as under:

"18. Punishment for conspiracy, etc.-Whoever conspires or attempts to commit, or advocates, abets,

advises or incites or knowingly facilitates the commission of, a terrorist act or any act preparatory to the

commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be less

than five years but which may extend to imprisonment for life, and shall also be liable to fine."

(49) Placing reading of Section 18 of the Act of 2004 makes it clear that not only conspiracy to commit

terrorist act is made punishable, but attempting, advocating, abetting, advising, inciting the commission of

a terrorist act is also made punishable. It also goes further by adding the term knowledge. Thus, it is not

necessary that the person must intend to aid a terrorist act in order to be held liable for an offence under

Section 18 of the Act of 2004; it would be sufficient, for the purpose of attracting the penal provisions of

section 18, if the prosecution is able to prove that an accused had the knowledge that his act or omission

would facilitate the commission of a terrorist act.

(50) Now, Section 18, as it stood in the Act of 2004, has been modified, by the UA (P) Act, 2008, by

substituting, in place of the words "incites or knowingly facilitates", the words "incites, directs or knowingly

facilitates". This becomes clear, when we read Section 18 as stands amended in the UA (P) Act, 2008.

Section 18 is, therefore, reproduced below:

"18. Punishment for conspiracy, etc.-Whoever conspires or attempts to commit, or advocates, abets,

advises or incites, directs or knowingly facilitates the commission of, a terrorist act or any act preparatory

to the commission of a terrorist act, shall be punishable with imprisonment for a term which shall not be

less than five years but which may extend to imprisonment for life, and shall also be liable to fine."