The main legal point established in the judgment is that the extension of the remand period beyond 90 days under Section 43-D(2)(b) of the UA(P) Act is within the legislative intent and does not permanently impact the appellant's legal rights.

JUDGMENT :

1. 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 68th day of the first remand.

2. Appellant is the 7th 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 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 68th 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 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 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 Sectio