Kerala High Court Denies Bail To LTTE Sympathizer Who Overstayed 5 Years In India Without Visa

The Kerala High Court on Thursday denied bail to a suspected LTTE sympathizer for having overstayed in India without a Visa and actively plotting to procure prohibited arms and contraband articles while furthering the activities of LTTE in India and abroad.

A Division Bench of Justice K. Vinod Chandran and Justice C. Jayachandran dismissed the appeal finding that the witness statements clearly established that he was an active member of the banned terrorist organization 'Liberation Tigers of Tamil Eelam' (LTTE).

"The statements of the witnesses show not only the inextricable connection of the appellant with the illegal activities but also show the definite link with the proscribed organization, LTTE, with full knowledge and complicity in the attempt to smuggle heroin, arms and ammunition in the boat, intercepted before its entry into the port." 

A Srilankan fishing boat with huge quantities of narcotic drugs, AK-47 rifles and ammunition was seized by the Narcotic Control Bureau. A case was registered against the six Srilankan nationals found onboard. They were accordingly arrested under the Unlawful Activities (Prevention) Act, and the Arms Act read with S.34 IPC.

After the NIA took over the investigation, two more accused were taken into custody, being members of LTTE. Later, the appellant herein was arrested as well, being the brother of one of the accused. It was later discovered that he had stayed in India without a Visa violating the Foreigners Act. 

According to the NIA, the investigation revealed that he had actively connived in procuring prohibited arms and ammunition, besides contraband articles and furthering the activities of LTTE within India and abroad. 

The appellant had approached the NIA Special Court for bail but this was rejected. Challenging this dismissal, he approached the High Court. 

Advocate Irfan Ziraj appearing for the appellant argued that he was arrested merely because he was the brother of one of the accused. The Counsel added that there was absolutely no evidence to connect him with the proscribed organization or the activities alleged against his brother. Advocate Ziraj further argued that Section 43D(7) of UAPA (entering the country illegally) would definitely not be applicable since the allegation against him was only that he has overstayed in India.

ASGI S. Manu appearing for NIA contended that there are clear statements of the appellant's complicity by the witnesses. It was further pointed out that the overstayal of the appellant extends to five years and considering the evidence of him having frequently travelled abroad there could have been an unauthorized entry into India.

The Court perused the final report and found that one of the accused had turned approver in the case. The approver had testified specifically on his connection with people who were active workers of LTTE. He also stated that the appellant and his brother used to attend the secret meetings held by LTTE members and verified the account books.

The approver had also admitted that from the meetings he understood that they were planning to raise funds by dealing in arms and drugs. The appellant was referred to as one of the drug dealers who took the responsibility for certain consignments and transportation of arms and ammunition.

Another prosecution witness also testified that the brothers were active supporters of LTTE and attended meetings to discuss about furthering its activities. 

Therefore, the Bench concluded that there was sufficient material to establish that the appellant had direct involvement in the illegal activities of LTTE. 

In fact, the final report accused him of being core cadre of the LTTE along with his brother. Therefore, it was held that there was prima facie truth in the accusation levelled against the appellant under Section 43D. 

"...having conducted secret meetings and conspired to carry out illegal activities of trafficking in drugs as also arms and ammunition with the intention of raising funds to revive and further the activities of the LTTE, both in India and Sri Lanka, formed themselves into a terrorist gang, transferred money through hawala channel for the procurement of drugs, arms and ammunition and arranged inter alia, the consignment attempted to be brought into India, which was intercepted within the territorial waters of India. There is prima facie truth in the accusation against the appellant and S.43D(5) applies squarely with all the rigour of the proviso."

The Bench also considered the fact that the appellant has been overstaying for more than five years in India and the witness statements indicate frequent travel outside India. In that circumstances, it was only possible that the appellant had been using forged documents to come into the country and it is quite possible that he has, in the ensuing years, often entered into the Country unauthorizedly and illegally.

Therefore, the Court dismissed the appeal.

Case Title: Ramesh v. Chief Investigation Officer & Anr.

Citation: 2022 LiveLaw (Ker) 430

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