Can UAPA Accused Be Taken Into Police Custody After 30 Days Of First Remand? NIA Urges Supreme Court To Reconsider 'Gautam Navlakha' Judgment

A bench of Justices BR Gavai and JB Pardiwala was hearing an appeal by the central agency against an order of the Delhi High Court upholding a special court’s decision to reject a plea by the National Investigation Agency (NIA) for extension of police custody of three terror accused beyond the 30-day-period sanctioned under Section 167(2) of the Code of Criminal Procedure, 1973 read with Section 43D (2) of the Unlawful Activities (Prevention) Act, 1967. Undisputedly, in the first round, the NIA had sought and was granted permission to take these accused in the Jammu and Kashmir terror financing case into police custody for less than the maximum of 30 days.

During the hearing today, Additional Solicitor-General Aishwarya Bhati pointed out that a portion of the Supreme Court’s ruling in Gautam Navlakha was being relied on by lower courts to reject pleas by the National Investigation Agency to take an accused into police custody after the initial 30 days, even if the period of custody in the first instance was less than 30 days. “This judgement is now being relied on to deny police remand of the accused persons where the NIA trials are going on,” Bhati said, echoing the submissions made by a public prosecutor before the high court. With respect to the case at hand, she told the bench:

“Investigation is underway with respect to the absconding accused who have been declared as terrorists under the UAPA. It cannot be said at this point that we have nothing left to investigate with regard to either the three respondents or the other accused in this case. Very serious offences have been committed.”

“It was argued before the high court that Gautam Navlakha requires reconsideration,” Justice Gavai said, “Can Gautam Navlakha be reconsidered by the high court?”

That may not be the correct submission, Bhati conceded, before adding that she would like to persuade the apex court that a single line in the judgement, and not the judgement in its entirety, required a ‘relook’. “It is this one line in Gautam Navlakha which is not only in the teeth of the statute but also ignores earlier pronouncements of this court which dealt with pari materia provisions,” the law officer said, while relying on the second proviso to Sub-section (2) of Section 43D, which empowers an investigating officer to take an accused into police custody from judicial custody on filing an affidavit explaining the rationale and the reasons for the delay, as well as a 2004 ruling of the top court in Maulavi Hussein Haji Abhraham Umari v. State of Gujarat dealing with a similarly-worded provision in the now-repealed Prevention of Terrorism Act, 2002.

Justice Pardiwala asked the additional solicitor-general, “Although police custody was sought and granted for 14 days, if the remaining 15 days have also lapsed from when the fourteenth day came to an end, can you not seek another 14 days of remand under the same provision?” He added:

“Your endeavour is to convince us that the NIA is entitled to take the accused into police custody again for the remaining period. But, after this period has elapsed, and police custody gets converted to judicial custody, can the accused be remanded to police custody again? That is the short point for our consideration.”

View That There Cannot Be Police Custody Beyond 15 Days From Date Of Arrest Should Be Reconsidered : Supreme Court

Background

In October 2021, the National Investigation Agency, pursuant to an order by the Ministry of Home Affairs, raided several locations across Jammu and Kashmir and other major cities following a spate of civilian killings in the valley. The central government, a first information report (FIR) lodged by the NIA reveals, had received ‘reliable information’ that cadres of Laskhar-e-Taiba (LeT), Jaish-e-Mohammed (JeM), Hizb-ul-Mujahideen (HM), Al Badr, and similar other outfits and their affiliates, such as The Resistance Front (TRF), People against Fascist Forces (PAFF), Mujahideen Gazwatul Hind (MGH) were active in the state and at the behest of Pakistan, were conspiring and planning – both in-person and on the internet – to undertake violent terrorist acts in Jammu and Kashmir and other major cities, including New Delhi. Based on this information, the NIA was directed to launch an investigation into a large-scale conspiracy allegedly funded and controlled by these international terror outfits and their affiliates in India to spread terror in Jammu and Kashmir.

The country-wide crackdown that followed were part of the NIA’s plan to apprehend individuals having alleged links with these proscribed organisations. In the course of the investigation, the central agency claimed to find evidence of the involvement of over 25 over ground workers (OGW) or ‘hybrid terrorists’ – common people belonging to various walks of life and remaining rooted in society to use their cover and carry out instructions of their militant handlers – in spreading propaganda to radicalise and recruit impressionable youth, providing logistical support to terrorist activities, as well as indulging in terrorist activities themselves, such as grenade lobbing, undertaking lone attacks on vulnerable targets, and arson. Subsequently, over the months of October, November, and December of 2021, these suspects – all residents of Jammu and Kashmir – were arrested and taken into custody. Later, in April 2022, the NIA filed a charge sheet before a special court in Delhi, charging the accused of various offences under relevant sections of the Indian Penal Code, 1860 and the Unlawful Activities (Prevention) Act, 1967. Till date, other people have also been arrested in connection with this terror funding case.

Of the people arrested for their suspected involvement in terrorist activities in the first round were Owais Ahmad Dar, Arif Farooq Bhat, and Kamran Ashraf Reshi, the respondents in the current appeal. While the first two were in police custody for 13 days in October 2021, Reshi was in police custody for six days in the same month. The controversy is over a request of the National Investigation Agency to send the accused to police custody, which was made after 30 days from the date of the first remand had already expired. In November 2021, the special court in Delhi rejected NIA’s plea seeking an extension of the police custody of the three accused, on the ground that the sanctioned 30-day-period of custody had already elapsed. While doing so, it relied on the precedent in the2021 judgement in Gautam Navlakha, in which the Supreme Court held that an investigating officer in a case under the UAPA could keep an accused in police custody for a maximum period of 30 days but it must be within the first 30 days since the date of remand.

After its application was rejected, the NIA filed a plea in the Delhi High Court challenging the trial court’s order, arguing, inter alia, that the only fetter imposed on the power of the investigation agency to take an accused into police custody was that the duration of remand – whether sought within the first 30 days or not – cannot exceed 30 days in aggregate. Initially, this plea was heard by a single-judge bench, which issued notice and sought the responses of the three accused in January of last year. However, ultimately, Justice Rajnish Bhatnagar directed the matter to be placed before a division bench noting that an order rejecting remand was a final, and not interlocutory, order and as such, an appeal against it would only lie before a bench comprising more than one judges.

Before the division bench, it was argued on behalf of the agency that the Supreme Court’s judgement in Gautam Navlakha – on the basis of which the special judge had rejected the NIA’s prayer for extension of police custody – required ‘reconsideration’. Not only did the high court reject the appeal, holding that it was squarely covered by the Gautam Navlakha judgement, but also observed:

“Before we part with the order, it would, however, be relevant to record that the Special Public Prosecutor appearing on behalf of the NIA has urged, albeit, in vain that the decision rendered by the Supreme Court in Gautam Navlakha ‘requires reconsideration’. We find ourselves unable to agree with the aforestated submission since we are bound by the decision of the Supreme Court even if it could be said to be obiter dicta. The last submission made on behalf of the NIA is governed by the principle of stare decisis and the same is accordingly rejected.”

Case Details

National Investigation Agency v. Owais Ahmad Dar & Ors. | Special Leave Petition (Criminal) No. 6599-6600 of 2022