IMPORTANT POINT
The court established that the discretion to condone delays in appeals under the NIA Act extends beyond 90 days and clarified that production warrants can be issued during investigations, not just when a case is pending adjudication.

JUDGMENT :

Sanjeev Kumar, J.

1. Chief Investigating Officer of National Investigating Agency (NIA) Sanjay Nagpal along-with public prosecutor filed an application under Section 267 of CrPC before the Court of Special Judge U/S 11 of the NIA Act (3rd Additional Sessions Judge) [“the trial court” for short] seeking production warrant against one Abdul Jabbar @ Jabbar S/o Abdul Habib R/o H. No. 3919 Urdu Bazar near Jagat Cinema Chandni Chowk Delhi lodged in judicial custody in District Jail Bilaspur in FIR No. 288/2017.

2. In the application, it was pleaded that NIA New Delhi has registered a case bearing No. RC-16/2016/NIA/DLI, dated 16th December 2016 for commission of offence under Section 17 of The Unlawful Activities (Prevention) Act, 1967.

3. The case relates to large scale transfer of funds from Pakistan to India through the import of California almonds and other items via cross LoC trade facilitation centres located at Salamabad, Uri, and Chakkan-da-Bagh, Poonch, for their purported use for fomenting terrorism in J&K. It was claimed by the appellant herein in his application that during investigation, Mr. Abdul Jabbar has been found to be involved in the said LoC trade and is aware of several incriminating facts relating to the mechanism adopted by the accused to facilitate transfer of funds illegitimately for fomenting terrorism in the Union Territory of Jammu and Kashmir. It was also averred in the application that during his examination in the jail, Mr. Abdul Jabbar had expressed his willingness to make his statement under Section 164 CrPC with regard to his acquaintance with the facts and circumstances of the case under investigation. It was thus pleaded that the statement of Abdul Jabbar was required to be recorded under Section 164 CrPC for taking the investigation further. The application was considered by the trial court and the same was rejected solely on the ground that the Court was not competent to issue production warrant under Section 267 CrPC during investigation and when no case is pending adjudication before the Court against the person against whom warrants have been sought to be issued. The trial court vide its order dated 6th May 2022 passed on the application of the appellant herein rejected the prayer of the appellant for issuing production warrants against Abdul Jabbar for recording his statement under Section 164 CrPC before the competent Magistrate in connection with case RC-17/2016/NIA/DLI. It is this order of the trial court which is appealed against before us under Section 21 of the National Investigation Agency Act, 2008 [NIA Act]. The appellant also prays, in the alternative, to invoke the inherent jurisdiction of the court vested by Section 482 of the CrPC 1973 for setting aside and quashing the order dated 6th May 2022 passed by the trial court.

4. Indisputably, there is no criminal trial or enquiry pending before the trial court and the matter is at the stage of investigation which is being carried out by NIA in the crime registered as RC-17/2016/NIA/DLI dated 16th December 2016. The appellant has preferred this appeal under Section 21 of the NIA Act which prescribes or lays down 30 days period for filing an appeal with discretion given to the court to condone the delay on the sufficient cause being shown but not beyond the period of 90 days. Indisputably, in the instant case, the appeal is preferred beyond the period of 90 days and therefore the same is accompanied by an application for condonation of delay of 40 days. We find that the appellant has sufficiently explained the delay of 40 days beyond the period of 90 days provided under second proviso and, therefore, condone the same.

5. After hearing Mr. Vishal Sharma, learned DSGI, this court vide its order dated 9th November 2022 asked him to come prepared on following two aspects:-

(i) Whether delay beyond the period of ninety (90) days in filing appeal under Section 21 of the National Investigation Agency Act can be condoned?

(ii) Whether the