Disclosure Of Identity Of Protected Witness Defeats The Purpose Of Section 44 (3) UAPA: Calcutta HC Orders Trial Court To Redact Name Of Protected Witness

The Calcutta High Court on Friday observed that Section 44 (3) of the Unlawful Activities (Prevention) Act, 1967 (UAPA) mandate Courts to undertake measures to protect the identity of a protected witness and accordingly directed the concerned Trial Court to to redact the name, address and other particulars of the protected witness from the records immediately.

A Bench comprising Justices Joymalya Bagchi and Bivas Pattanayak noted that in the instant case, the statement of the protected witness recorded under Section 164 CrPC discloses his indignity. Opining that such disclosure of indignity defeats the provision of Section 44 (3) of the UAPA, the Bench observed, 

"Sub-section (3) of section 44 of the Unlawful Activities (Prevention) Act, 1967, inter alia, provides the measures which the court may undertake to protect the identity of a protected witness which includes avoiding to mention the name and address of the witness in its orders or judgment and any record of the case accessible to public. Statement under section 164 Cr.P.C. of the witnesss is required to be served upon the accused. Hence, disclosure of identity of the protected witness in such statement clearly defeats the purpose of the aforesaid provision of law."

The Court further directed the Trial Court to exercise more caution in ensuring that the indignity of protected witnesses are not divulged and accordingly underscored, 

"The trial court is directed to redact the name, address and other particulars of the protected witness from the aforesaid statement and other records immediately. Trial Court is further directed to be more cautious in future and ensure that the identity of the protected witnesses are not divulged."

Background 

The instant appeal had been preferred against the order dated March 26, 2021 issued by the Sessions Court wherein the appellant's prayer for bail had been rejected. The appellant had been charged under Section 120B (criminal conspiracy), Section 489B (using as genuine, forged or counterfeit currency-notes), Section 489C (possession of forged or counterfeit currency-notes) of the Indian Penal Code and under Sections 16, 18 and 20 of The Unlawful Activities (Prevention) Act, 1967. 

In the instant case, the appellant had allegedly been financing, aiding and abetting the circulation of high quality counterfeit currency notes in conspiracy with other co-accused persons. On January 21, 2020, two other co-accused persons had been apprehended with high quality Fake Indian Currency Notes (FICNs) valued at Rs.2,46,000 and Rs.1,00,000  respectively. Subsequently, another consignment of high quality of FICNs valued at Rs.5,00.000 was recovered from the third co-accused person. 

Furthermore, a sum of Rs.1,38,000 was also transferred from the account of the appellant and his sister-in-law to the account of the second co-accused on January 16 and January 17, 2020, a couple of days prior to recovery of the FICNs. Statement of protected witness also corroborated the monetary transactions for purchase of FICNs by the appellant. Thereafter, appellant was arrested on January 30, 2021 and is in custody for more than a year.

Observations 

Pursuant to the perusal of the record, the Court noted that analysis of digital data from the mobile phones and the sim cards of the appellant and the other accused persons revealed that the appellant was in active communication with other co-accused persons from December, 2019.

It was further observed that the appellant had provided no explanation for the frequent telephonic conversations between himself and other co-accused persons. It was also stated that no explanation has also been given for the frequent monetary transactions between himself and other co-accused persons soon before the apprehension of the co-accused persons with a large volume of FICNs.

"Even on 20th January, 2020, a day prior to their apprehension, there were telephonic conversations between the appellant, A-1 and A-2. On 16th and 17th January, 2020 i.e. 4-5 days prior to their apprehension, a sum of Rs.1,38,000/- had been transferred at the behest of the appellant through his own account and that of his sister-in-law..These materials prima facie give rise to a strong suspicion that the appellant playing an active role in the circulation of high quality of FICNs through other accused persons", the Court further observed. 

Accordingly, the Court upheld the rejection of bail by the Trial Court and observed that the prima facie role of the appellant in the alleged crime has been disclosed. 

Advocates Debasis Kar and Husen Mustafi appeared for the appellant. Advocates Sanjay Bardhan, Bhaskar Prasad Banerjee and Debasish Tandon represented the NIA. 

Case Title: Surojit Mandal v. National Investigation Agency (NIA)

Case Citation: 2022 LiveLaw (Cal) 32

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