‘Probe Pending, Trying To Derail Process By Filing Applications’: NIA To Delhi High Court On Former PFI Chairman’s Plea For Medical Bail

The National Investigation Agency (NIA) on Thursday told Delhi High Court that the investigation against former Popular Front of India (PFI) Chairman E Abubacker is pending and he is trying to derail the process by filing applications parallelly before the special judge and high court regarding his medical treatment.

NIA’s counsel was making submissions before a division bench of Justice Siddharth Mridul and Justice Talwant Singh which was hearing Abubacker’s appeal challenging the order of special judge rejecting his application seeking bail on medical grounds.

“The investigation is pending. Extension is granted to complete investigation but they are only trying to derail the investigation process. What they want is that 'we have some medical ailment so allow us to go to Kerala'. By this, these people going to Kerala, this entire situation is to derail the investigation and influence the witnesses,” NIA’s counsel told court.

Advocate Adit S. Pujari appearing for Abubacker submitted that Article 21 of the Constitution of India encapsulates the right to health and to live with dignity, adding that the accused is not even in a position to clean himself due to multiple ailments including cancer and parkinsons disease.

“….he cannot touch behind his back himself. He has fallen in toilet on two occasions. When he was taken in jail van to AIIMS, his son was not permitted to meet him because it was said that he did not have certified copy of the court order,” Pujari submitted.

In response, NIA’s counsel submitted: “He has been granted a sevadaar in jail ...  all the time they are moving similar applications for medical treatment parallelly before the special court and this court. Entire attempt is to get out of the situation and not letting the investigation to go (forward).”

Pujari however submitted that it was not his intention to confuse the court and that he “did not want to burden the High Court by filing applications under section 482.”

It’s not forum shopping, Pujari said.

Pujari further contended that the court may consider the question of violation of Article 21 in Abubacker’s case especially in view of his incarceration even when he is “unable to fend for himself”. He added that even his health reports suggest that scans have to be done regularly.

On court’s query, Pujari submitted that the twin conditions or embargo stipulated under section 43D(5) of UAPA will not apply while granting interim bail to an accused. However, the bench noted that he has failed to highlight any precedent for the same.

As Pujari relied on the judgment of Supreme Court in Union of India v K. A. Najeeb, Justice Mridul orally remarked:

“This is not a seminar, Mr. Pujari. This is serious business. Show us how your fundamental rights under Part III are violated by your detention. Not semantics actually. In Najeeb’s case, the entire thrust is expeditious trial is integral part of judicial process. And that in delay which adversely affects a person, he is entitled to bail regardless of the non-obstante clause under section 43D(5) UAPA. How do you fit? I don’t understand. The investigation is ongoing. Najeeb has no applicability, it was when the trial was delayed.”

While listing the matter on February 1, the court permitted Pujari to file an additional affidavit in the matter within one week.

Previously, the bench had refused to entertain Former Abubacker's prayer seeking his transfer to house arrest from Tihar Jail on account of his health condition.

Abubacker, presently in judicial custody, was arrested by NIA in an FIR which alleges that various PFI members were conspiring and collecting funds from India and abroad for committing terrorist acts in multiple states.

The FIR also alleges that the PFI members are involved in radicalizing and recruiting Muslim youth for proscribed organisations like ISIS.

The FIR was registered under section 120B and 153A of the Indian Penal Code, 1860 and section 17, 18, 18B, 20, 22B 38 and 39 of the Unlawful Activities (Prevention) Act, 1967.

Title: ABOOBACKER E. v. National Investigation Agency