Biswajit Khanikar @ Pritam v. The State of Assam

ORDER

23.05.2023

Heard Mr. S. Dutta, learned counsel for the accused petitioner as well as Mr. B. Sarma, learned Addl. P.P., Assam for the State respondent. By this petition under Section 439 Cr.P.C., the accused/petitioner, namely Biswajit Khanikar @Pritam has prayed for grant of bail in connection Sonari P.S. Case No. 87/2023 u/s 120B/121/121(A)/387 of the IPC read with Sections Page No.# 2/4 10/13/17/18 of the Unlawful Activities (Prevention) Act, 1967. The case diary as called for is placed before the Court. Mr. S. Dutta, learned counsel for the accused petitioner, submits that the accused petitioner is a petty businessman dealing in betel leaf and no objectionable item was recovered and seized from his conscious possession. Mr. Dutta also submits that going by the definition of 'unlawful activity' as defined in Section 2(o) of the UA(P) Act, prima facie on perusal of the F.I.R. and Forwarding Report, the same is not attracted under the facts and circumstances of the instant case. Mr. Dutta further submits that going by the definition of 'terrorist act' as defined in Section 2(k) corresponding to Section 15 of the UA(P) Act, prima facie on perusal of the F.I.R. and Forwarding Report, the same is not attracted under the facts and circumstances of the instant case. Mr. Dutta submits that the accused is a victim of circumstances who has been made a scapegoat and mechanically shown as an accused in the instant case and as such, no offence under Sections 17/18 of the UA(P) Act can be made out and therefore, the bar under Section 43-D(5) of the UA(P) Act will not be applicable in the instant case. Opposing the bail application, Mr. B. Sarma, learned Addl. Public Prosecutor, submits that the accused petitioner is an F.I.R. named person. Mr. Sarma also submits that the case diary reveals that the accused petitioner was found in contact with one banned terrorist organization over telephone and he was demanded one power bank of 60000/70000 MAH by the said banned military outfit, which fact he never informed to the police. Therefore, Mr. Sarma submits that as investigation is going on in the case, the liberty of bail may not be granted to the accused petitioner. The F.I.R., dated 15.03.2023 lodged by S.I. Shoan Kumar Dutta, reveals the allegation that the present accused petitioner along with some other accused persons had been working for a long time as linkmen, OGWs for a banned terrorist organization of Assam by providing logistics, ration, clothes medicine etc. It is also Page No.# 3/4 alleged that the accused persons had been working as courier for the said banned terrorist organization and collecting extortion money for it. It is noticed that the accused petitioner has been in judicial custody since

16.03.2023, that is, for 69 days. Perusal of the case diary shows that the accused petitioner is a petty businessman dealing in betel nut and betel leaf which is supplied by a contractor from Nagaland. He received one phone call from an unknown person who demanded one power bank. He snapped the phone call but, the said unknown person persistently called him over phone, which he did not receive. In Para No. 13.1 of Sudesh Kedia Vs. Union of India, reported in (2021) 4 SCC 704, the Hon'ble Supreme Court held as extracted hereinbelow-"13.1. A close scrutiny of the material placed before the Court would clearly show that the main accusation against the appellant is that he paid levy/extortion amount to the terrorist organisation. Payment of extortion money does not amount to terror funding. It is clear from the supplementary charge-sheet and the other material on record that other accused who are members of the terrorist organisation have been systematically collecting extortion amounts from businessmen in Amrapali and Magadh areas. The appellant is carrying on transport business in the area of operation of the organisation. It is alleged in the second supplementary charge-sheet that the appellant paid money to the members of the TPC for smooth running of his business. Prima facie, it cannot be said that the appellant conspired with the other members of the TPC and raised funds to promote the organisation." Therefore, in the above backdrop of facts stated and the evidence that emerge from the case diary, this Court is of the considered opinion that prima facie the accused petitioner having not voluntarily involved in any 'unlawful activity' as defined in Section 2(o) and being not a member of any 'unlawful association' as defined in Section 2(p) of the UA(P) Act by virtue of being victim of attempted extortion by some unknown member of some banned militant outfit, subject to final outcome in investigation, he may be given the liberty of bail subject to conditions. This Court is of the further opinion that if the liberty of bail is granted to the accused petitioner, the Page No.# 4/4 ongoing investigation into the case is unlikely to be adversely affected. Accordingly, it is provided that the accused petitioner, named above, shall be released on bail of Rs.20,000/-(Rupees Twenty Thousand) only with one surety of like amount to the satisfaction of the learned Chief Judicial Magistrate, Charaideo at Sonari subject to the following conditions-

i) That the accused petitioner shall cooperate with the investigating officer as and when required;

ii) That the accused petitioner shall not directly or indirectly make any inducement, threat of promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts either to the investigating officer or to the Court; and

iii) That the accused petitioner shall not withheld any extortion bid from any quarter and shall report promptly to the police. Breach of any of the above conditions shall render cancellation of the bail in accordance with law. Return the case diary. This disposes of the bail application. JUDGE Comparing Assistant

Page No.# 1/4 GAHC010075852023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./1285/2023 BISWAJIT KHANIKAR @ PRITAM S/O LATE HEMANTA KHANIKAR, R/O KHANIKAR GAON, AMGURI, P.O. AND P.S.- AMGURI, DIST.- SIVASAGAR, ASSAM. VERSUS THE STATE OF ASSAM REP. BY P.P., ASSAM. Advocate for the Petitioner : MR. C SHARMA Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR