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2018 Supreme(Mad) 2098
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. VIMALA, S.RAMATHILAGAM, JJ.
Shakul Hammed – Appellant
Vs.
State by The Superintendent of Police National Investigation Agency Kochi – Respondent
CRL. A. NOS. 91 & 92 OF 2018
Decided On : 12-09-2018
For the Appellant : Mr. P. Pugalenthi
For the Respondent: Mr. R. Karthikeyan, Spl. PP for NIA Cases
Headnote:
Unlawful Activities (Prevention) Act, 1967 -u/s 43-D (2) (b) ,Sections 17, 18, 18-B, 20, 38, 39 and 40 –Indian Penal Code, 1860 -120-B -National Investigating Agency – Appeal - Detention of the accused –Custody - Bail rejected - The case of the prosecution is that 7 named persons along with others, were involved in a criminal conspiracy and they formed a terrorist gang, raised funds and trained some personnel and facilitated their travel from India to Syria to join the Daesh or the so-called ISIS. Public Prosecutor filed a report and sought for extension of time for investigation and also for the continued detention of the appellant beyond the period of 90 days and upto the period of 180 days. This request was in terms of Section 43-D (2)(b) of the UAP Act. The application of the prosecution for extension of time having been ordered and the application for bail filed by the appellant having been dismissed vide the orders noted above, the same are under challenge as orders passed by the Special Court - Held, While the second limb of Section 43-D (2) (b) speaks about the specific reasons that are to be stated for the extension of remand, the report falls well short of the legislative necessity, which has been specified in the said provision. It is to be pointed out that general investigative procedures cannot be a ground for seeking extension of remand. Specific reasons that really necessitate the extended remand of the accused does not form part of the report, which is the basic requirement for extension of remand. The report of the Public Prosecutor reveals that the procedures are general investigative procedures, which, by no stretch of imagination could be termed as special reasons for the grant of extension of remand. The legislative intent not being satisfied, the ratio laid down in Hitendra Vishnu Thakurs case (supra) squarely stands attracted to the case on hand. The Trial Court has not appreciated this aspect of the matter and the rejection of bail is against the provision of the UAP Act and deserves to be set aside. The accused is entitled for release on bail – Petition allowed.
DR. S.VIMALA, J.
The petition filed by the learned Spl. Public Prosecutor for NIA cases, in the form of a report, u/s 43-D (2) (b) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as 'UAP Act') seeking permission for the prosecuting agency a) to continue the investigation for a further period of 90 days and b) also to order detention of the accused persons, viz., A-2-Khaja Moideen @ Abdullah Muthalif and A-3-Shakul Hameed @ Salavudin in judicial custody upto the period of 180 days was allowed by the Special Court under the NIA Act, 2008 by order dated 12.12.2017 in Crl. MP No.518 of 2017. Challenging this order, the accused Shakul Hameed has filed the appeal in Crl.A.No.92 of 2018
1.1. The accused Shakul Hameed filed Crl. M.P. No.8 of 2018 seeking bail and it was rejected by the order dated 18.1.2018. Challenging this order, the accused has filed the appeal in Crl.A.No.91 of 2018.
2. The issues involved in both the cases are interconnected, hence, the common Judgment is pronounced.
3. Brief facts: The case of the prosecution is that 7 named persons along with others, were involved in a criminal conspiracy and they formed a terrorist gang, raised funds and trained some personnel and facilitated their travel from India to Syria to join the Daesh or the so-called ISIS. The National Investigating Agency, New Delhi, registered a case u/s 120-B IPC and Sections 17, 18, 18-B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, (for short 'UAP' Act) and submitted the FIR before the Special Court for NIA cases Poonamallee, Chennai.
4. The Spl. Public Prosecutor filed a report and sought for extension of time for investigation and also for the continued detention of the appellant beyond the period of 90 days and upto the period of 180 days. This request was in terms of Section 43-D (2)(b) of the UAP Act. The application of the prosecution for extension of time having been ordered and the application for bail filed by the appellant having been dismissed vide the orders noted above, the same are under challenge as orders passed by the Special Court.
5. A perusal of the order passed by the Special Court dated 12.12.17 would disclose that reason for seeking extension of time for investigation has been explained by the Spl. Public Prosecutor and the line of investigation to be pursued for the remaining period is also indicated. To cite an example, it is stated that investigation is conducted abroad as well and requests have been sent to the Republic of Singapore under Mutual Legal Assistance Treaty (for short 'MLAT') between India and Singapore. Similar process of sending request to USA under MLAT is also under progress; efforts are being taken to get the call details of all the mobile phones recovered and to analyze the same for establishing the link between these accused persons and the absconding accused persons. Thus, the prosecution, indicating the progress in the investigation and the steps taken, sought for further time. It is further disclosed that the electronic gadgets seized from the accused had been forwarded to C-DAC, Thiruvananathapuram for analysis by Experts. Whether the investigation on these lines would require further detention of the accused is the issue to be considered.
6. It is rightly pointed by the learned counsel for the accused that the accused persons cannot have any influence/control over any investigation to be done by the Experts in the field of Electronic and Information Technology and as the materials were already in the hands of the investigating officials, it cannot be tampered with at all. It is also contended that the accused cannot have any influence over the authorities functioning either in Singapore or United States of America.
7. The learned Special Public Prosecutor would submit that grant of bail is governed by the provisions of Section 43-D of the UAP Act and it cannot be granted invoking the provisions of 439 of Cr.P.C. as contemplated under Sections 43-D(5)
