Muhammed Shafi P v. National Investigation Agency

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 18TH DAY OF FEBRUARY, 2021 / 29TH MAGHA, 1942 CRL.A.No.878 OF 2020** **AGAINST THE ORDER DATED 12.10.2020 IN CRL.M.P.NO.179/2020 IN RC NO.2/2020/NIA/KOC OF SPECIAL COURT FOR TRIAL OF NIA CASES,ERNAKULAM** ## **APPELLANT/RESPONDENT NO.6/ACCUSED NO.7:** **MUHAMMED SHAFI.P,AGED 36 YEARS S/O.ABOOBACKER PANNIKKOTTIL, PANNIKKOTTIL HOUSE,IKKARAPADY(PO), MALAPPURAM DISTRICT-676637.** **BY ADVS. SRI.P.V.ANOOP SRI.VIPIN NARAYAN SRI.PHIJO PRADEESH PHILIP SRI.K.V.SREERAJ** ## **RESPONDENT/PETITIONER/COMPLAINANT:** **NATIONAL INVESTIGATION AGENCY,KOCHI, REPRESENTED BY ITS SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682023.** **BY ADV. SRI.P.VIJAYAKUMAR, ASST. SOLICITOR GENERAL OF INDIA SRI.ARJUN AMBALAPPATTA, SPECIAL PUBLIC PROSECUTOR FOR NIA CASES** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-12-2020, THE COURT ON 18.02.2021 DELIVERED THE FOLLOWING:** Crl.Appeal No.878 of 2020 2 **A.HARIPRASAD & M.R.ANITHA, JJ. -------------------------------------Crl.Appeal No.878 of 2020 -------------------------------------Dated this the 18[th] day of February, 2021** ## **JUDGMENT** ## **Hariprasad, J.** Legal question raised in this appeal by an accused involved in certain offences punishable under the Unlawful Activities (Prevention) Act, 1967 (in short, “UA(P) Act”) is whether, by invoking Section 43-D(2)(b) of the said Act, the detention of an accused beyond 90 days prescribed under Section 167 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.”) can be extended upto 180 days by filing an application on 68[th] day of the first remand. 2. Appellant is the 7[th] accused in a case registered by the National Investigation Agency (in short, “NIA”) constituted under the National Investigation Agency Act, 2008 (in short, “NIA Act”). An application/report filed by the public prosecutor for NIA under Section 43-D(2)(b) of UA(P) Act for extension of the judicial custody of the appellant along with other accused Crl.Appeal No.878 of 2020 3 beyond a period of 90 days was considered by the Judge, Special Court for trial of NIA Cases, Ernakulam as per the impugned order dated 12.10.2020 and the request was allowed. According to the appellant, the learned Judge without properly applying his mind extended the order of detention beyond 90 days by allowing the application filed on 68[th] day of remand. It is argued that non-application of mind is writ large because there is no material placed before the court to find out whether the investigation against the appellant could have been completed within 90 days. Another contention raised is that a valuable right of the accused/appellant to move for default bail on the expiry of 90 days has been taken away by filing a premature application for extension of the remand period. 3. Heard Shri P.Vijayabhanu, learned senior counsel for the appellant and Shri P.Vijayakumar, learned Assistant Solicitor General of India (in short, “ASG”) and Shri Arjun Ambalappatta, learned Special Public Prosecutor for NIA Cases. 4. Annexure-A is the report submitted by the public prosecutor under Section 43-D(2)(b) of UA(P) Act for extending the period of remand of the appellant and other accused persons. One of the contentions raised by the appellant is that the dates of first remand of accused persons are not specifically mentioned. This may lead to a confusion and consequent Crl.Appeal No.878 of 2020 4 injustice since there could be mistakes in calculating 90 days fixed by Section 167 Cr.P.C. Further, no convincing reason is stated by the court below for extending the period of remand beyond 90 days. That itself is a reason to find that there was non-application of mind. From the operative portion of the impugned order it can be seen that the learned Judge has accepted the report submitted by the public prosecutor and decided to extend the period of detention of the accused persons, including the appellant, beyond 90 days subject to further orders passed in the case. Learned senior counsel appearing for the appellant forcefully argued that no outer period is mentioned in the order to find out whether the extension was for a period of 180 days or for a shorter period. According to him, an evasive order of this nature should not have been passed since one cannot be left to assume that the extension was for a period of 180 days. 5. In reply to these arguments, learned ASG contended that the appellant has not filed any objection to Annexure-A report submitted by the public prosecutor seeking extension of the remand beyond 90 days. In fact the request by NIA was not opposed by the appellant as is evident from the impugned order itself. It is also pointed out on behalf of NIA that the appellant did not apply for a default bail on completion of 90 days. Instead, he preferred an appeal against the rejection of his bail plea. His action would Crl.Appeal No.878 of 2020 5 legally imply the fact that he was conceding to the impugned order. 6. In the first place, learned ASG contended that the order passed by the learned trial Judge invoking his jurisdiction under Section 43-D(2)(b) of UA(P) Act, being an interlocutory order, cannot be challenged in an appeal by virtue of the prohibition in Section 21(1) of the NIA Act. Section 21(1) says that notwithstanding anything contained in the Code (Cr.P.C.) an appeal shall lie from any judgment, sentence or order, not being an interlocutory order, of a Special Court to the High Court both on facts and on law. This provision clearly excludes the maintainability of an appeal against an interlocutory order passed by the Special Court. **Mastiguda Aboobacker and another v. National Investigation Agency (N.I.A.) and others (2020 (6) KHC 265)** is a Full Bench decision of this Court wherein, after considering **Amar Nath v. State of Haryana ((1977) 4 SCC 137)** and **Madhu Limaye v. State of Maharashtra ((1977) 4 SCC 551)** and other decisions on the point, it is held that an interlocutory order, pure and simple, passed by a Special Court cannot be challenged in an appeal and the remedy available to the aggrieved is to prefer a petition under Section 482 of Cr.P.C. 7. In **Mastiguda Aboobacker** 's case after referring to various legal dictionaries it has been held that an interlocutory order is one which is made pending the cause and before a final hearing on merits. It is further observed 6 Crl.Appeal No.878 of 2020 that an interlocutory order is an order that refers to some intermediate matter in the case; any order other than a final order. In the above decision, the Full Bench had examined the distinctions between an interlocutory order, an intermediate order and a final order. 8. On a perusal of Section 43-D(2) of UA(P) Act it can be seen that the provision modifies Section 167 of Cr.P.C. to the extent shown below: ## _“_ _**43-D. Modified application of certain provisions**_ _**of the Code.-** (1) xxxxx_ _(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 sub-section (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_ Crl.Appeal No.878 of 2020 7 _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 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.”_ 9. On a reading of the first proviso to Section 43-D(2)(b) it will be evident that if the public prosecutor files a report before the Special Court indicating the progress of the investigation and the specific reasons for the detention of accused beyond a period of 90 days referred to in the Section, the court may extend the said period upto 180 days. 10. Learned senior counsel vehementally argued that this extension directly impinge on the rights of the accused persons to claim default bail after 90 days and therefore any order passed under the above provision should be treated as appealable. Per contra, learned ASG contended that under the scheme of Cr.P.C. the accused gets an indefeasible right to claim Crl.Appeal No.878 of 2020 8 default bail after 60 days or 90 days, as the case may be, as provided under the statute if no final report was filed in the meantime. However, under the UA(P) Act the court is clothed with a power to extend the period of remand of the accused from 90 days upto 180 days under Section 43-D(2), if the prosecutor submits a report indicating the progress of the investigation and showing specific reasons for the detention of accused beyond 90 days. According to the learned ASG, the indefeasible right of the accused is not annihilated by the provision and it is only postponed to a farther day, viz. 180 days. 11. On a careful consideration of the rival contentions, we are of the view that an order of extension of the remand period beyond 90 days, passed by the Special Court, can only be an interlocutory order. Such an order in no way prejudicially affects the contentions of the accused because what contentions he could have raised on 90[th] day could be raised by him on the completion of 180 days. In other words, considering the object of the statute and the fact that it is meant to tackle or deal with very serious offences against the unity, integrity, security and sovereignty of India and also against terrorism, a world-wide menace, we find that elongation of the period fixed for the accused to claim a default bail from 90 days to 180 days is the clear legislative intent. There is no total abrogation of the right of the Crl.Appeal No.878 of 2020 9 appellant to claim a default bail later. 12. Moreover, any observation in such an order can have no bearing on the plea that the appellant could have raised at the time of trial. Order passed under the provisos to Section 43-D(2)(b) can have no permanent impact on the legal right of the appellant to defend his case. It does preclude an accused to file a bail application before the expiry of 180 days of remand. So much so, it can only be regarded as an order made pending the case. Therefore we have no doubt that the impugned order is an interlocutory order not capable of being challenged in appeal under Section 21(1) of NIA Act. Hence this appeal is incompetent. 13. Even though learned ASG contended that the appeal is filed beyond 30 days prescribed under Section 21(5) of NIA Act, we are not impressed with this contention. The impugned order was passed on 12.10.2020. It is seen that a copy was applied on 21.10.2020 and it was delivered on the same day. So, the number of days lost is only 8. Thereafter, on 11.11.2020 the appeal has been filed before this Court. By this time, 21 days have elapsed. The appeal, therefore, was filed on the 29[th] day indicating that it is well within the period of 30 days prescribed under Section 21(5) of NIA Act. Having found that an appeal is not the remedy available to the appellant, this point assumes no significance in this case. Crl.Appeal No.878 of 2020 10 14. Coming to the merits of this case, it is evident from Annexure-A report submitted by the prosecutor under Section 43-D(2)(b) of UA(P) Act that it was filed on 08.10.2020. It is seen from the report that the appellant was formally arrested while he was in judicial custody in a case registered under the Customs Act. His formal arrest was on 31.07.2020. It is a well settled principle that the period of 60 days or 90 days prescribed in Subclauses (i) and (ii) of proviso (a) to Section 167 of Cr.P.C. should be computed from the date of first remand of the accused and not from the date of his arrest under Section 57 ( **Chaganti Satyanarayana v. State of A.P. (AIR 1986 SC 2130** ). This proposition is fortified by other pronouncements as well. According to the learned senior counsel, the remand extension of this accused was sought on the 68[th] day along with other accused whose remand period was nearing 90 days. On a perusal of the report for extension of the remand period, submitted by the public prosecutor, we find that the progress of investigation has been clearly narrated in various paragraphs and so also the specific reasons for detention of the accused persons beyond 90 days. True, the report is submitted in respect of accused 1, 2, 4 to 9 and 11 to 14 together. It can be seen that in respect of other accused persons their remand for 90 days was about to expire when the report was submitted by the public prosecutor. As pointed out by the learned ASG, the Crl.Appeal No.878 of 2020 11 appellant has not filed any objection against the report. From the impugned order, it is evident that he did not oppose the remand extension. NIA contended that the appellant, without filing any objection to the report submitted for extension of the remand period and without raising any opposition to the request for extension of remand, chose to file an appeal against rejection of his bail plea. It is also highlighted by the learned ASG that the appellant did not even apply for default bail on the expiry of 90 days. 15. Learned senior counsel refuted these contentions by stating that before expiry of 90[th] day the order of extension was passed by the trial court taking away the appellant's right to file an application on the expiry of the said period in custody. 16. The question that boils down for determination is if the remand extension order passed on 68[th] day caused deprivation of any legal right of the appellant. 17. To buttress the respective contentions both sides cited authorities. Learned senior counsel placed reliance on **Hitendra Vishnu Thakur and others v. State of Maharashtra and others ((1994) 4 SCC 602)** wherein Sections 3, 18, 20(4), 20(8), etc. of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (in short, “TADA”) were interpreted. Section 20(4) of TADA modified Section 167 of Cr.P.C. by stating that if it was not 12 Crl.Appeal No.878 of 2020 possible to complete the investigation, the designated court could extend the remand period upto one year on the report of the public prosecutor indicating the progress of the investigation and the specific reasons for the detention of the accused beyond a period of 180 days. While interpreting this provision the Supreme Court held that it is immaterial whether the application for bail on the ground of default under Section 20(4) of TADA is filed first, or the report envisaged by Clause (bb) is filed by the public prosecutor first so long as both are considered while granting or refusing bail. Although the facts and situations in the above decision are different, it is argued by the learned senior counsel that the appellant has lost in this case an opportunity to urge his contentions on the expiry of 90 days. In answer to this contention, learned ASG submitted that the appellant cannot be heard to say so because he has not even filed an application for default bail either on the eve of completing 90 days or immediately on completion of 90 days. Not only that, he has not filed an objection to the report submitted by NIA seeking extension of remand. Therefore, the noticeable distinctions in the facts in **Hitendra Vishnu Thakur** and this case have an impact on the applicability of the legal principles enunciated therein. 18. Relying on **Kasi S. v. State through the Inspector of Police, Samaynallur Police Station, Madurai (2020 (3) KHC 600)** learned senior Crl.Appeal No.878 of 2020 13 counsel contended that on the strength of an order passed by Supreme Court on 23.03.2020 under Articles 141 and 142 of the Constitution of India extending the period of limitation in the wake of Covid-19 pandemic, it cannot be understood to mean that it ever intended to extend the period of filing charge sheet by police as contemplated under Section 167(2) of Cr.P.C. In this case, NIA has not raised such a plea to seek extension of time for filing report due to any reason connected with Covid-19 pandemic. Therefore, we find it difficult to apply the ratio in the above decision to this case. 19. It is trite, the ratio in every binding precedent has to be applied with reference to the similarity in facts. In this case, as pointed out earlier, the appellant has not applied for default bail on completing 90 days. He has not even filed any objection to the application filed by NIA seeking extension of his remand period. From the impugned order, we find no demur raised by the appellant at the time of passing the order. As observed earlier, the impugned order does not debar the appellant from raising his contentions at the time of trial. In the peculiar facts and circumstances of this case where there are large number of accused persons and having voluminous evidence already collected against them and remaining yet to be collected, we find no reason to blame NIA for filing an application for extension of remand period 14 Crl.Appeal No.878 of 2020 in respect of all the accused persons together. While doing so some accused persons must have been nearing completion of 90 days of detention whereas others may be in custody for a lesser number of days. Ideally, NIA should have filed separate applications in respect of those accused who are about to complete 90 days and who are in custody much below 90 days. In the peculiar circumstances of this case, the report submitted by the prosecutor clearly shows valid reasons for seeking extension of remand period in respect of all accused persons. Therefore, we find no illegality or irregularity in the impugned order passed by the learned Judge of the Special Court. Moreover, we have already found that the appeal is not a remedy available to the appellant. In the result, the appeal is dismissed for the aforementioned reasons. All pending applications will stand closed. **A.HARIPRASAD, JUDGE.** **M.R.ANITHA JUDGE.** cks Crl.Appeal No.878 of 2020 15 ## **APPENDIX** ## **APPELLANT'S EXHIBITS:** **ANNEXURE A: TRUE COPY OF CRL.M.P.NO.179/2020 FILED BY THE RESPONDENT BEFORE THE SPECIAL COURT FOR NIA CASES, ERNAKULAM.** **RESPONDENT'S EXHIBITS: NIL**