JUDGMENT

P.N. PRAKASH, J.

This criminal appeal is at the instance of the National Investigation Agency (for short “the NIA”) calling into question, the legality and validity of the order dated 20.12.2021 passed by the Special Court under the NIA Act, 2008 (for brevity “the Special Court”), in and by which, the police custody application filed by the NIA has been dismissed.

2 The facts necessary for the disposal of this criminal appeal are as under:

2.1 Based on credible information that a group of terrorists was working under the banners of the Wahadat-E-Islam, Jamaat Wahadat-ul-Islam-al-Jihadiya, Jihadist Islamic Unit and Ansarallah, sympathetic to the ISIS and Al Qaida, the Government of India directed the NIA to investigate the matter, based on which, the NIA registered an FIR in RC No.16/2019/NIA/DLI at New Delhi on 09.07.2019 for the offences under Sections 120-B, 121-A and 122 IPC and Section 17, 18,18-B, 38 and 39 of the Unlawful Activities (Prevention) Act (for brevity “the UAP Act”) and took up the investigation of the case.

2.2 During the course of the investigation, the NIA arrested 16 accused on various dates and remanded them in judicial custody. This case does not concern any of them.

2.3 The NIA suspected the involvement of Divan Mujipeer @ Divan, the respondent herein (for short “Divan”) and summoned him for inquiry. Accordingly, Divan appeared before the NIA on 21.09.2019, 23.09.2019 to 27.09.2019 and 30.09.2019 for interrogation. Thereafter, his statement under Section 164 Cr.P.C. was recorded by a Magistrate on 04.01.2020. Seemingly, the NIA did not get anything substantial from the interrogation of Divan. However, they suspected that he was hiding the truth.

2.4 The NIA completed the investigation qua 16 accused who were arrested by them and filed a final report on 07.01.2020 only against 11 accused before the Special Court for the offence under Section 13 of the UAP Act, which was taken on file as C.C. No.1 of 2020 on 21.01.2020. At this juncture, we notice that Divan was not arrayed as an accused in C.C. No.1 of 2020.

2.5 On 28.01.2020, the NIA filed an application under Section 173(8) Cr.P.C. in Crl.M.P.No.15 of 2020 in C.C. No.1 of 2020 for conducting further investigation against some other persons involved in the offence, but, were operating from the Middle East. However, on 29.11.2021, the NIA arrested Divan and remanded him in judicial custody.

2.6 On 01.12.2021, the NIA filed an application in Crl.M.P. No.556 of 2021 seeking police custody of Divan, in which, the Special Court ordered notice to Divan returnable by 04.12.2021.

2.7 On 04.12.2021, the Special Court directed the Prison authorities to produce Divan on 13.12.2021. On 13.12.2021, the counsel for Divan sought time to file counter affidavit in the police custody application in Crl.M.P. No.556 of 2021 and therefore, the petition was adjourned to 16.12.2021. On 16.12.2021, final arguments in the police custody application were heard and the matter was posted for orders on 20.12.2021.

2.8 On 20.12.2021, the Special Court dismissed the police custody application in Crl.M.P. No.556 of 2021, challenging which, the NIA has filed the instant appeal under Section 21 of the NIA Act on 19.01.2022. Since the Registry noticed certain defects in the appeal papers, the same were rectified by the NIA and the appeal was re-presented on 31.01.2022.

3 This Court ordered notice to Divan on 07.02.2022 returnable by 11.02.2022, pursuant to which, Mr. A. Rawther Naina Mohamed has entered appearance and filed a counter affidavit.

4 We requested Mr. Nithyaesh Nataraj, Advocate, to assist us as Amicus Curiae.

5 Heard Mr. R. Karthikeyan, learned Special Public Prosecutor appearing for the NIA and Mr. Abdul Basith, learned counsel representing Mr.A.Rawther Naina Mohamed, learned counsel on record for Divan and Mr.Nithyaesh Nataraj, learned Amicus Curiae.

6 At the outset, Mr. Abdul Basith contended that the present appeal under Section 21 of the NIA Act is not maintainable since an o