Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 863864 OF 2019
(Arising out of SLP(Crl.) No(s). 97839784 of 2018)
STATE BY THE SUPERINTENDENT
OF POLICE, NATIONAL INVESTIGATION
AGENCY, KOCHI …..APPELLANT(s)
VERSUS
SHAKUL HAMEED …..RESPONDENT(s)
J U D G M E N T
Rastogi, J.
Leave granted.
2. The instant appeals have been filed against the judgment
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dated 12 September, 2018 passed by the High Court of
Judicature at Madras granting bail in default to the accused
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respondent after setting aside the order dated 12 December,
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2017 and 18 January, 2018 passed by the Special Court(under
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2019.05.07
14:44:15 IST
Reason:
National Investigation Agency Act, 2008), Chennai holding that
the detention of the accused/respondent for a further period of
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90 days was not in compliance of Section 43D(2)(b) of the
Unlawful Activities(Prevention) Act, 1967(hereinafter being
referred to as (“UAP Act, 1967”)
3. The facts giving rise to these appeals insofar as they are
relevant for disposal are that as per the case of the prosecution,
nine named persons including the accused respondent were
involved in a criminal conspiracy and they formed a terrorist
gang, raised funds and trained some personnel and facilitated
their travel from India to Syria to join the Daesh or the socalled
ISIS. The National Investigating Agency, New Delhi registered a
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case no. R.C. No. 03/2017/NIA/DLI on 26 January, 2017 under
Sections 120B IPC and Sections 17,18, 18B, 20, 38, 39 and 40
of the UAP Act, 1967 against nine accused persons including the
accused respondent(A3).
4. An allegation against accused respondent(A3) was that he
was a radicalized youth from Chennai who, consequent to the
criminal conspiracy had attempted to join ISIS/Daesh in Syria.
However, he was intercepted by the Turkish authorities while
attempting to cross over to Syria and deported to India from
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Turkey on 29 August, 2015. He was arrested and remanded to
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judicial custody on 18 September, 2017 as he is alleged to be
one of the conspirators.
5. As per his date of arrest, 90 days prior thereto was to expire
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on 16 December, 2017. On 11 December, 2017, the Special
Public Prosecutor filed a report before the Special Court,
assigning specific reasons, praying for the extension of judicial
detention of the accused respondent for a further period of 90
days to enable the investigating agency to complete the
investigation. The written objections were filed by the accused
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respondent on 11 December, 2017. The Special Court, after
affording opportunity of hearing to the respondent accused who
appeared through his counsel and taking note of the written
submissions opposing the request made by the Special Public
Prosecutor for judicial detention for a further period of 90 days as
prayed for, after recording its satisfaction on the specific reasons
assigned by the Special Public Prosecutor, granted judicial
detention for a further period of 90 days under Sections 43D(2)(b)
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of the UAP Act, 1967 vide its order dated 12 December, 2017.
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6. At the same time, application filed by the accused
respondent for bail under Section 167(2) of Code of Criminal
Procedure, 1973 read with Section 43D of the UAP Act, 1967 was
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dismissed vide Order dated 18 January, 2018 having become
infructuous.
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7. Aggrieved by the aforesaid orders dated 12 December,
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2017 & 18 January, 2018, the accused respondent(A3) filed
appeal under Section 21 of the National Investigation Agency Act,
2008 before the High Court. The High Court of Madras, on
appraisal of the record, arrived at the conclusion that the specific
reasons which have been assigned by the Special Public
Prosecutor in his report seeking extension of time does not meet
the requirement of law as contemplated under Section 43D(2)(b)
of the UAP Act, 1967 and accordingly set aside the order of the
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Special Court dated 12 December, 2017 and 18 January, 2018
and in consequence thereof, granted statutory bail in default to
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the respondent accused under its Order dated 12 September,
2018 which is a subject matter of challenge in appeals before us.
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8. As informed to this Court, that (A1) Haja Fakkurudeen has
been absconding but chargesheet has been filed against all the
accused persons and Khaja Moideen @ Abdullah Muthalif(A2)
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was arrested on 15 September, 2017 and bail was granted to
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him on 23 January, 2019 and Ansar Meeran(A4) was arrested
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on 12 February, 2018 and bail was granted to him on 19
November, 2018 and the case is pending for framing of charge
under Section 228 of Code of Criminal Procedure, 1973. The
case against A5 to A7 has been closed by NIA.
9. Learned counsel for the appellant submits that Paras 8 to
12 of the report of Special Public Prosecutor indicate specific
reasons like need for further NIA custody of the accused as
envisaged in Section 43D(2) of the UAP Act, 1967, to verify the
facts revealed through experts and for unravelling the conspiracy
in the case for the detention of the accused respondent for a
further period of 90 days and once the satisfaction was recorded
by the learned Judge of Special Court meeting out the
requirements envisaged under Section 43D(2)(b) of the UAP Act,
1967, such satisfaction recorded after perusal of the record could
not have been overturned by the High Court unless very strong
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reasons were forthcoming, which has not been pointed out under
the impugned judgment.
10. Per contra, while supporting the order of the High Court,
learned counsel for the respondent submits that though the
reasons have been assigned by the Special Public Prosecutor in
his report which may be relevant for further investigation, but
was not relevant to justify further detention of the accused
respondent for a further period of 90 days and that being the
mandate of law as envisaged in Section 43D(2)(b) of the UAP Act,
1967, no error was committed by the High Court in setting aside
the order of the Special Court under the impugned judgment.
11. Learned counsel for the respondent in alternate further
submits that the detention of the accused respondent might have
been necessary at the relevant point of time for further progress
of the investigation but the fact situation has later changed and
the coaccused persons who are similarly situated(A2) & (A4)
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have been granted bail on 23 January, 2019 and 19 November,
2018 on merits by the competent Court of jurisdiction after filing
of the chargesheet and in either of the order of bail granted to
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the accused nos. 2 and 4, prosecution has not filed any
application for cancellation. The present accused respondent(A3)
is also on bail may be in compliance of the impugned judgment
and when it is not the case of the appellant that after statutory
bail was granted to him in compliance of the impugned judgment
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dated 12 September, 2018, he has committed any breach or
violated the conditions of the bail granted to him. At least, in the
given facts and circumstances, even if there is some merit in the
submission made by the appellant, at least the bail which was
granted to the accused respondent in the changed
circumstances, may not be interfered with by this Court.
12. It is not disputed that in the instant cases, the accused
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respondent(A3) was arrested on 18 September, 2017 and initial
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period of 90 days from the date of arrest was to expire on 16
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December, 2017 and prior thereto on 11 December, 2017, the
report was submitted by the Special Public Prosecutor assigning
specific reasons for seeking detention of the accused respondent
for a further period of 90 days under Section 43D(2)(b) of UAP
Act, 1967 and after a copy of application was supplied to the
accused respondent, he filed his written objections through
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counsel and after affording opportunity of hearing to the parties,
the Special Court, after recording its satisfaction, in reference to
the specific reasons assigned for detention of the accused
respondent beyond a period of 90 days allowed the application
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filed by the Special Public Prosecutor vide its order dated 12
December, 2017.
13. The extract of the report submitted by the Public Prosecutor
indicating the progress of the investigation and the specific
reasons required for detention of the accused respondent for a
further period of 90 days as envisaged under Section 43D of the
UAP Act are stated as under:
8. It is further submitted that the investigation is
continued the facts disclosed by the accused while on
custody needs further verification and in progress. The
electronic gadgets seized at the instance of the accused
needs to be forensically analysed. In this regard the
electronic gadgets seized from accused were forwarded
to CDAC, Thiruvananthapuram, through this Hon’ble
Court, needs to be analysed by the experts of CDAC,
Thiruvananthapuram and report yet to be received.
The accused persons may be required for further police
custody from judicial custody for the purpose of
investigation as envisaged in Section 43D(2)(b) of UAP
Act, 1967 to verify any facts being obtained from the
forensic expert.
9. It is further submitted that investigation against the
absconding accused Haja Fakkurudeen(A1), who had
joined the activities of ISIS in Syria, and other accused
named in the FIR are in progress. The travel details of
the accused are being verified through Immigration
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authorities to confirm the complicity of the accused
tour and travels to Syria and other places. A number
of witnesses acquainted with facts of the case are yet to
be examined and the investigation period beyond 90
days if not expended, it may cause serious prejudice
and enlarging accused Khaja Mohideen (A2) and
Shakul Hameed (A3) on bail at this stage may hamper
the investigation also.
10. It is submitted that the NIA is conducting
investigation abroad, on the role of accused and
associates operating from abroad in this case. In this
regard requests have been send to the Republic of
Singapore under Mutual Legal Assistance
Treaty(MLAT) between Republic of India and the
Republic of Singapore and the reply on certain aspects
are yet to be received from the requested country.
Further, the process of sending request to the United
States of America(USA) under Mutual Legal Assistance
Treaty(MLAT) between Republic of India and USA to get
the details of social media accounts and
communications between accused and their associates
in India and abroad is under progress.
11. It is further submitted that the NIA has taken
steps to unravel the larger conspiracy including the
clandestine terror activities of the accused, their
association with other terrorist organizations, their
possible locations in India and abroad and the sources
of funding etc. Besides, requisitions were sent to the
concerned service providers to get the CDR’s of all the
mobile phones recovered and the other numbers used
by the accused with a view to analyse the same for
establishing the linkages between the absconding
accused and field verification needs to be done. The
names accused in the FIR is yet to be secured and the
involvements of those persons have also been
investigated and investigation is in crucial stage and
therefore it is not possible to complete the investigation
within the said period of ninety days. Therefore, as
indicated the progress of the investigation and the
specific reasons above for the detention of the accused
beyond the said period of ninety days extend the said
period up to one hundred and eighty days for the
purpose of investigation.
12. It is further submitted that the investigation is
proceeding in the right direction. Since the accused
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are hard core ISIS ideologists, detailed further
interrogation is inevitable to collect more evidence and
for unravelling the larger conspiracy behind the crime.
There may be imminent threat to the security of the
nation if the accused are not interrogated in detail,
more evidence is not collected and detailed
investigation is not done to identify and secure other
members of the group.”
14. Before we proceed to examine the question raised in the
instant appeal any further, it may be apposite to take note of
Section 43D(2)(b) of the UAP Act, 1967:
“43D. Modified application of certain provisions of the
Code.
(1) xxx
(2)Section 167 of the Code shall apply in relation to a
case involving an offence punishable under this Act
subject to the modification that in subsection (2),
(a) the references to “fifteen days”, “ninety
days” and “sixty days”, wherever they
occur, shall be construed as references to
“thirty days”, “ninety days” and “ninety
days” respectively; and
(b) after the proviso, the following provisos
shall be inserted, namely:
Provided further that if it is not possible to
complete the investigation within the said period of
ninety days, the Court may if it is satisfied with the
report of the Public Prosecutor indicating the progress
of the investigation and the specific reasons for the
detention of the accused beyond the said period of
ninety days, extend the said period up to one hundred
and eighty days:
Provided also that if the police officer making the
investigation under this Act, requests, for the purposes
of investigation, for police custody from judicial
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custody of any person in judicial custody, he shall file
an affidavit stating the reasons for doing so and shall
also explain the delay, if any, for requesting such
police custody.”
15. The necessary ingredients of the proviso to Section 43D(2)(b)
of the UAP Act, 1967 has to be fulfilled for its proper application.
These are as under:
A. It has not been possible to complete the investigation
within the period of 90 days.
B. A report to be submitted by the Public Prosecutor.
C. Said report indicating the progress of investigation and
the specific reasons for detention of the accused beyond
the period of 90 days.
D. Satisfaction of the Court in respect of the report of the
Public Prosecutor.
16. The scope of Section 43D(2)(b) of UAP Act, 1967 has been
recently examined by a three Judge Bench of this Court in
State
of Maharashtra Vs. Surendra Pundlik Gadling & Ors. 2019
SCC Online SC 188 and has not detained us any further.
17. Taking note of the specific reasons which have been
assigned by the Special Public Prosecutor in his report of which
reference has been made(supra), we are satisfied that the specific
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reasons assigned by the Public Prosecutor fulfil the mandate and
requirement of Section 43D(2)(b) of the UAP Act, 1967 and that
was considered by the learned Judge of the Special Court in
detail, who after recording its satisfaction, granted detention to
the accused for a further period of 90 days under its Order dated
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12 December, 2017.
18. We cannot be oblivious of the changed circumstances which
has been brought to our notice regarding the present FIR dated
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26 January, 2017. Chargesheet has been filed against all the
four accused persons(A1 to A4) including the accused
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respondent(A3) on 13 March, 2018 and the accused no. 2 and
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accused no. 4 are on bail from 23 January, 2019 and 19
November, 2018 and the matter is pending for framing of charge
and it is not the case of the appellant that the present accused
respondent after being enlarged on bail in compliance of the
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impugned judgment dated 12 September, 2018 has committed
any breach or violated the conditions of grant of bail.
19. To conclude, we are not in agreement with the conclusions
arrived at by the High Court in the impugned judgment dated
12
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12 September, 2018 but taking note of the later developments
and the supporting facts brought to our notice, we are not
inclined to interfere with the final relief to the extent of granting
default bail to the accused respondent in the circumstances of
the case on hand. However, it may be open for the prosecution to
apply for cancellation of bail, if any exigency arises in future. We
consider it further to direct the learned Presiding Officer of the
Special Court, NIA, to expedite and conclude the trial on or before
March, 2020. Compliance report be sent to the Registry of this
Court.
20. Consequently, the appeals are disposed of in the above
terms.
…………………………J.
(A.M. KHANWILKAR)
…………………………J.
(AJAY RASTOGI)
NEW DELHI
May 07, 2019
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