Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Date of Decision: 16 November, 2016
+ CRL.A. 600/2016
ADNAN HASSAN & ANR ..... Appellant
Through: Mr. M.S. Khan, Adv.
versus
NATIONAL INVESTIGATION AGENCY ..... Respondent
Through: Mr. Sanjay Jain, ASG with
Mr. Abhishek Bagaria, SPP,
Ms. Rajul Jain and
Mr. Vignaraj Pasayat, Advs.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT(ORAL)
GITA MITTAL, J
1. The instant appeal has been filed by the appellants under
Section 21(4) of the National Investigating Agency Act, 2008
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( ‘NIA Act’ hereafter ) assailing an order dated 10 June, 2016
passed by the learned District & Sessions Judge, Special Court
(NIA), New Delhi whereby the application for grant of statutory
bail under Section 167(2) of the Code of Criminal Procedure of the
appellant was dismissed.
2. The matter relates to a case registered by the National
Crl. A.600/2016 Page 1 of 11
Investigation Agency being FIR RC No.04/2016/NIA/DLI under
Section 120B of the IPC and Section 18, 18A, 18B of the Unlawful
Activities (Prevention) Act, 1967
3. For the purposes of the present appeal, it is completely
unnecessary to go into the matter on merits. It is an admitted
position that the aforesaid case stand registered and the appellants
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stand arrested in the case on 29 January, 2016.
4. A compilation of the relevant orders and applications
relating to the case has been handed over in court by Mr. Sanjay
Jain, learned ASG after giving copy to the other side which is taken
on record.
We have heard Mr. M.S. Khan, leaned counsel for the
appellants and Mr. Sanjay Jain, learned ASG for the respondents.
5. In accordance with the provisions of Section 43D{(2)b} of
the Unlawful Activities (Prevention) Act, the NIA-respondent
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herein filed an application on 21 April, 2016 seeking extension of
the period of detention in the case against the appellants beyond the
period of 90 days upto 180 days for completing the investigation.
For purposes of expediency, we extract hereunder the relevant
averments and the prayer made in the application:
“ 11. That investigation in the instant case is in
progress and it is spread to several areas
including but limited to Jammu and Kashmir,
Maharashtra and Hyderabad in India and Dubai,
Sharjah and Abu Dhabi abroad. In order to
unravel the larger criminal conspiracy of IS
activities in India and abroad including
Crl. A.600/2016 Page 2 of 11
recruitment of resident and non-resident Indians
by the IS, period of investigation is required to be
extended beyond 90 days to 180 days and also the
presence of accused person in judicial custody is
essential for verifying the facts that emerges out of
the forensic reports and execution reports of
requests made under MLAT.
12. In view of the above stated facts and under
provisions of Section 43(D)(2)(b) of UA(P) Act,
1967 (as amended in year 2008), period of
investigation and judicial custody of accused
namely 1, Sheikh Azhar ul Islam, 2. Mohammed
Farhan Shaikh and 3, Adnan Hassan is required
to be extended from 90 days to 180 days to verify
the facts that emerge out of the contents of the
execution reports of requests made under MLAT
and forensic examination reports of the
electronic gadgets seized from the possession of
the accused persons in the interests of
investigation of the instant case.
Prayer
It is therefore, prayed that period of investigation
and judicial custody of three accused namely 1 ,
Sheikh Azhar ul Islam son of Absatar Sheikh
resident of Prang, Kangan, Ganderbai-191131,
Jammu and Kashmir, 2, Mohammed Farhan
Shaikh son of Mohammed Rafiq Sadique Shaikh
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Dost Apartments B-Building, C-Wing, 2 Floor,
Flat No.18, Opposite Noorani Hotel, Kausa
Mumbra District Thane-400512, Maharashtra and
3, Adnan Hassan son of Mohammed Hussain
Damudi resident of House No. 26, Daman, Sagar
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Road, Bhatkal, North Kanara-581320, Karnataka
may kindly be extended from 90 days to 180 days
in the interest of justice and purpose of
investigation .”
(Emphasis supplied)
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6. This application dated 21 April, 2016 was heard and
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considered by the Special Court, NIA and was disposed of on 22
April, 2016. The operative part of the order reads thus :
“The investigation in the case is still in progress
and cannot be completed within 90 days i.e. on or
before 27.04.2016 and as such, the period of
investigation and judicial custody of the accused
persons above named is required to be extended
from 90 days to 180 days for completion of the
investigation. It is further stated that during this
period, substantial progress has been made but a
lot of work still remains to be done in the
investigation of the case. Report of the Ld. PP,
NIA u/s 43D of UA(P) Act has also been filed in a
sealed envelope and the same is taken on record.
Heard. Keeping in view the aforesaid facts and
circumstances, the application stands allowed
and the accused persons above named are
directed to be kept in Judicial Custody and be
produced before this court on 20.05.2016 .
Application stands disposed of accordingly.”
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7. On 20 May, 2016, a second application for extension of
period of investigation and custody of the accused persons came to
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be filed on behalf of the respondent-NIA. Learned counsel for the
appellant has drawn our attention to the following averments
contained therein:
“d) That the period of investigation and
judicial custody of the accused persons was
accordingly got extended beyond 90 days till
20.5.2016 i.e. 113 days for completion of the
investigation and in the interest of Justice. The
investigation in the case is still in progress and as
such period of investigation and judicial custody
of the accused persons is required to be further
extended beyond 20.5.2016 i.e., 113 days to 180
days for completion of the investigation and in
the interest of Justice.
xxx xxx xxx
i) That investigation in the instant case is in
progress and it is spread to several areas
including but limited to Jammu and Kashmir,
Maharahstra and Hyderabad in India and Dubai,
Sharjah and Abu Dhabi abroad. In order to
unravel the larger criminal conspiracy of IS
activities in India and abroad including
recruitment of resident and non-resident Indians
by the IS, period of investigation is required to be
extended beyond 20.5.2016 i.e 113 days to 180
days and also the presence of accused person in
judicial custody is essential for verifying the facts
that emerges out of the forensic reports and
execution reports of requests made under MLAT.
xxx xxx xxx
Crl. A.600/2016 Page 5 of 11
(k) That the CIO has prayed for extension of
JC of the accused beyond 113 days. In view of the
above stated facts and under the provisions of
Section 43(D)(2)(b) judicial custody of accused
namely 1. Sheikh Azhar ul Islam, 2. Mohammed
Farhan Shaikh and 3. Adnan Hassan is required
to be extended beyond 20.5.2016 i.e. 113 days to
180 days to verify the facts that emerge out of the
contents of the execution reports of requests
made under MLAT and forensic examination
reports of the electronic gadgets seized from the
possession of the accused persons in the interest
of investigation of the instance case.
(l) In view of the above, it is requested to the
Hon’ble Court that the period of investigation and
the detention of the above mentioned accused
persons may please be extended beyond
20.5.2016 i.e 113 days to 180 days to complete
the investigation and file the final report in the
interest of justice.”
8. Unfortunately, the regular court seized of matters under the
NIA Act was on leave and as such, the case was placed before the
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Link Judge, NIA, ASJ-01 who recorded an order dated 20 May,
2016 directing as follows :
“Heard. After going through the entire
material brought before me, the period of
investigation and judicial custody of the above
named accused persons is extended till
10.06.2016. Let they be produced before the
concerned court on 10.06.2016.”
Crl. A.600/2016 Page 6 of 11
9. It is complained by the appellant that in as much as no
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charge sheet came to be filed on 10 June, 2016 nor the period of
investigation extended beyond this day, an indefeasible right
accrued to the appellants to be released on bail in accordance with
the provisions of Section 167(2) of the Code of Criminal
Procedure. For this reason, they moved an appropriate application
seeking grant of bail. This application was placed before the
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Special Court, NIA on 10 June, 2016 when it was contended on
behalf of NIA that the time for filing of the charge sheet had
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already been extended vide the order dated 22 April, 2016. After
hearing, the learned Special Judge was also of the view that the
time for extension for filing the charge sheet had been sought by
the NIA and the application stood granted as prayed and therefore,
the application was dismissed as infructuous.
This order has been assailed before us by the appellants
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contending that in view of the order dated 20 May, 2016, the time
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had been specifically extended only up to 10 June, 2016 and not
beyond that and as such, the charge sheet not having been filed by
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10 June, 2016, the appellants’ application under Section 167(2) of
the CrPC had to be granted by the court.
10. Mr. Sanjay Jain, learned ASG has placed before us yet
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another order, also dated 10 June, 2016, which was passed by the
Special Court, NIA. Our attention is drawn to an application which
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was filed by the NIA before the Special Judge, NIA dated 10
June, 2016 praying for extension of the judicial custody of the
Crl. A.600/2016 Page 7 of 11
appellants for 30 days for the purposes of completion of
investigation.
11. This application was taken up for consideration in the
presence of the appellants as well as their counsel and by the order
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dated 10 June, 2016 the learned judge observed thus :
“xxx The investigation in the case is still in
progress and could not be completed till today
and as such, the period of investigation and
detention of the above named accused persons is
required to be extended from 134 days to 190
days for completion of the investigation. It is
further stated that during this period, substantial
progress had been made but a lot of work still
remains to be done in the investigation of the
case. Report of the Ld. PP. NIA u/s 43D of UA(P)
Act has also been filed in a sealed envelope and
the same is taken on record.
Another application has been moved by
NIA seeking extension of Judicial Custody of the
above named accused persons for 30 days.
Heard. The prayer for extension of the
period of filing the charge sheet has already
been dealt with on 22.04.2016 by the court
whereby the period beyond 90 days to 180 days
for filing the charge sheet was extended. The
statutory period of 180 days have not been
expired as yet and as such, no further order is
required to be passed in that regard however, the
judicial custody of the accused has to be
extended till the filing of the charge sheet.
Hence, the above named accused persons are
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directed to be kept in JC and be produced before
this court on 08.07.2016.
The application for extension of judicial
custody of the accused above named stands
disposed of accordingly.
Copy of the order be given dasti, as prayed
for.”
(Emphasis supplied)
12. It is pointed out by Mr. Sanjay Jain, learned ASG that even
the applications seeking extension of time which have a bearing on
the present appal have not been placed on record by the appellants.
In fact the appeal deserved to be dismissed at the outset on the
ground of concealment of material fact but given the fact that the
appellants stands incarcerated, we have heard learned counsel on
merits.
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13. We may note that this order dated 10 June, 2016 passed by
the Special Court, NIA has not been placed by the appellants
before us. We may note that there is no challenge to this order as
well.
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14. In view of this order of 10 June, 2016 specifically noting
that extension of the period of investigation beyond 90 days to 180
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days had been granted on 22 April, 2016 which period had not
expired and that no further order was, therefore, required to be
passed. The present appeal is completely misconceived.
15. Mr. Sanjay Jain, learned ASG would press that the
appellants deserve to be non-suited on the ground that they have
Crl. A.600/2016 Page 9 of 11
suppressed material facts as well as the record of the court which is
referred to in the appeal is completely misconceived and not
maintainable. Be that as it may, in as much as the period for
investigation stands extended by the Special Court, NIA, we find
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that on 22 April, 2016, while considering the first application
which was filed for the extension for the period of investigation
under Section 43D{(2)b} of the Unlawful Activities (Prevention)
Act, the court had ruled that “ the application stands allowed ”. It
was apparent that the complete prayer made therein had been
granted without any reservation of period. Simply, a separate
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direction for production of the appellants before the court on 20
May, 2016 had been passed which was independent of the prayer
regarding the investigation which had been granted. This position
stands clarified by the Special Court, NIA while recording the
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order on 10 June, 2016 passed on the application made by the
NIA seeking specific direction for extension of the period of
custody from 134 days for a further period of 30 days.
16. Mr. M.S. Khan, learned counsel for the appellant has placed
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before us the application which was filed by the NIA on 20 May,
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2016 to contend that by the order dated 22 April, 2016 extension
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had been granted only up to 20 May, 2016 and it was so
understood by the NIA.
17. It needs no elaboration that an understanding of an order by
the party would not detract from what has been stated in the order.
It has been submitted by Mr. Sanjay Jain, learned ASG that the
application was filed on a misreading of the order and as a matter
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of abundant caution by the officer who filed the application on 20
May, 2016.
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18. We also find that the order dated 22 April, 2016 is explicit
when it states that the application stands allowed, meaning thereby
that the prayer as made in the application had been granted.
19. In view of the above discussion, this appeal is devoid of any
legal merit and is hereby dismissed.
GITA MITTAL, J
ANU MALHOTRA, J
NOVEMBER 16, 2016/ kr
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