Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 145

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
SANJAY DHAR, J.
Arshad Ahmad Allaie - Petitioner
Versus
UT of J&K & Anr. - Respondents
CRM(M) No. 653 of 2019
Decided On : 06-07-2021

Advocates Appeared:
For the Petitioner:Mr. Pranav Kohli, Sr. Advocate With Mr. Farhan Mirza, Advocate.
For the Respondent: Mr. Aseem Sawhney, AAG.

Point of Law: Detention - Order granting or extending judicial custody of accused - It is clear that jurisdiction to extend detention of an accused beyond period of 90 days in relation to case where accused is booked for offences under UA(P) Act, which is included in NIA Act, vests with Special Court constituted in terms of provisions of NIA Act.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Sections 36-A, 8/21/22/27-A/29 - UAPA Act - Section 13, 16, 17 and 21 - National Investigation Agency Act - Section 22 - Criminal Procedure Code,1973 - Sections 167(2), 438 and 173 - FIR - Obtaining initial remand of the accused in connection with investigation - Seeking extension of period of investigation - Whether an order granting extension of period of custody of accused beyond 180 days passed by a Sessions Court in terms of Section 36-A of Narcotic Drugs and Psychotropic Substances Act, 1985 - Whether a Sessions Court would exercise jurisdiction of a Special Court including the jurisdiction to remand accused to custody during investigation of case and take cognizance of offences or would it only hold trial of the offences under NDPS Act as a Court of Session - Whether order is speaking - Whether order is reportable - Petitioner along with other accused persons was booked in FIR offences under Section 8/21/22/27-A/29 NDPS Act and Section 13, 16, 17 and 21 UAPA Act by Police Station - Initially FIR was registered for offences under Section 8/21/22/27-A/29 NDPS Act only and petitioner was arrested - Obtaining initial remand of accused in connection with investigation of offences under NDPS Act, upon addition of offences under UA(P) Act, remand of accused from time to time, was obtained by Investigating Agency from Special Court designated under Section 22 of the National Investigation Agency Act - judicial remand for extending period of investigation beyond 90 days in terms of Section 43-D of UA(P) Act was granted by Designated Court under NIA Act, in terms of its order - Extended period of judicial custody of accused including petitioner.
Finding of the Court: Impugned order granting extension in custody of petitioner beyond 180 days has been passed, it becomes clear that in said application a detailed account with regard to progress of investigation has been given by Investigating Officer - Application also spells out reasons as to why extension in custody of the accused was required - Application of the Investigating Agency and after perusal of case diary, recorded the reasons for extending custody of the accused including of petitioner beyond the period of 180 days - Court do not find any infirmity or illegality in impugned order passed by the learned Additional Sessions Judge, Jammu, same does not call for any interference by Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure or in exercise of its revisional jurisdiction.
Result: Petition is dismissed.

JUDGMENT :

1. An important question of law that has arisen in the instant petition is “whether an order granting extension of period of custody of accused beyond 180 days passed by a Sessions Court in terms of Section 36-A of Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act” for short hereinafter] in a case where the accused has been booked for various offences under NDPS Act read with offences under Unlawful Activities (Prevention) Act, 1967 [“UA(P) A Act”], is without jurisdiction”.

2. Before answering the aforesaid question, it is necessary to briefly, summarize the facts giving rise to the filing of the instant petition.

3. The record of the case shows that the petitioner along with other accused persons was booked in FIR No.38/2019 for offences under Section 8/21/22/27-A/29 NDPS Act and Section 13, 16, 17 and 21 UAPA Act by Police Station, Jammu. Initially the FIR was registered for offences under Section 8/21/22/27-A/29 NDPS Act only and the petitioner was arrested on 27.05.2019. However, during investigation of the case, offences under Section 13, 16, 17 and 21 UAPA Act were added on 30.07.2019.

4. After obtaining initial remand of the accused in connection with investigation of offences under NDPS Act, upon addition of offences under UA(P) Act, remand of the accused from time to time, was obtained by the Investigating Agency from Special Court designated under Section 22 of the National Investigation Agency Act [“NIA Act” for short]. Ultimately, the judicial remand for extending the period of investigation beyond 90 days in terms of Section 43-D of UA(P) Act was granted by the Designated Court under NIA Act, in terms of its order dated 23.08.2019. The extended period of judicial custody of the accused including that of the petitioner expired on 22.11.2019.

5. After the expiry of extended period of custody granted by the Designated Court under NIA Act, the Investigating Agency approached the Court of Principle Sessions Judge, Jammu, with an application seeking extension of period of investigation beyond 180 days in terms of Section 36-A of NDPS Act. The application came to be assigned to learned Additional Sessions Judge, Jammu, who vide his order dated 22.11.2019 extended judicial custody of the accused including that of the petitioner herein for a further period of 20 days. It is this order of learned Additional Sessions Judge, Jammu, which has been challenged by the petitioner through the medium of instant petition.

6. The main contention of the petitioner is that the order granting or extending the judicial custody of the accused in the instant case could be passed only by a Special Court Designated under NIA Act and not an ordinary Sessions Judge. Thus, according to the petitioner, the impugned order extending the judicial custody of the petitioner is without jurisdiction and, therefore, non-est in the eyes of law. On this premise, it is urged that once the period of 180 days of petitioner’s custody had expired, he was entitled to be enlarged on default bail, particularly when he had made an application for grant of such relief before the Designated Court under NIA Act as the investigating agency had failed to file the challan against the petitioner upon the expiry of aforesaid statutory period of 180 days.

7. The petition has been resisted by the respondents by filing a reply thereto. In their reply, respondents, besides narrating the facts of the case, have contended that the petitioner has not only been booked for offences under UA(P) Act but he has also been booked for various other offences under NDPS Act, as such, the learned Additional Sessions Judge was well within his jurisdiction to extend the custody of the petitioner beyond 180 days in terms of Section 36-A of NDPS Act. It has been averred that the petitioner and co-accused are involved in serious offences relating to narco terrorism as they have links with anti-national elements residing across the border and during investigation of the case, c