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

The 2021 Gautam Navlakha ruling of the top court required reconsideration to the extent that it dealt with the power of an investigating officer to take a terror accused into police custody from judicial custody, Additional Solicitor General Aishwarya Bhati told the Supreme Court of India on Friday 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 CourtBackground 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...

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

Awstika Das

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