The grounds for arrest must be communicated in writing as required by Section 43B of UAPA to uphold constitutional rights, rejecting mere oral information.

ORDER :

S.M. SUBRAMANIAM, J.

W.M.P.No.18741 of 2024 seeking to permit the petitioners to file a single writ petition stands allowed.

2. The present writ of declaration has been instituted to declare the arrest and the subsequent remand dated 23.05.2024 of the petitioners in connection with Crime No.173 of 2024 on the file of the first respondent as illegal, unconstitutional and violative of the legal proposition laid down by the Hon'ble Apex Court in Prabir Purkayastha vs State (NCT Delhi) 2024 INSC 414 and to release the petitioners from the custody in connection with Crime No.173 of 2024.

3. The first respondent registered a First Information Report in Crime No.173 of 2024 on 21.05.2024 against the second petitioner for the alleged offence under Sections 34 , 153B of INDIAN PENAL CODE and Section 13 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as “the UAPA ”). It is alleged that the second petitioner is the leader of Hizb-ut- Tahrir (HuT) organisation, which is banned in several countries across the world. The police claim that through his YouTube channel, “Dr.Hameed Hussain Talks”, the second petitioner incites young Islamists to secretly implement Islamic rule to overthrow the democratic government in India.

4. On 23.05.2024 at 6.05 A.M., the police arrested the second petitioner at his residence. The police interrogated the second petitioner and formed an opinion that the petitioners 1 & 3 were accomplices. Subsequently, the first and third petitioners, who are the father and brother of the second petitioner respectively, were arrested at their residence at 6.55 A.M., on the same day and were listed as A2 and A3 in the First Information Report.

5. The learned counsel for petitioners Mr.Abdul Basith would mainly raise two issues to declare the arrest of the petitioners as illegal. Firstly, the grounds of arrest, as contemplated under Section 43B of UAPA , had not been served on the petitioners before arrest. Secondly, Section 41A notice had not been issued by the competent authority. These two requirements are mandatory, both under the UAPA and as per the ratio laid down by the Hon'ble Supreme Court of India in the case of Prabir Purkayastha v. State (NCT Delhi) reported in 2024 INSC 414 and in the case of Pankaj Bansal v.Union of India reported in 2023 INSC 866.

6. Mr.Abdul Basith would mainly contend that the Supreme Court in unequivocal terms held that the grounds of arrest must be served in writing to the persons sought to be arrested under Section 43B of UAPA , which has not been complied with in the present case. In this context, he would rely on the observations made by the Apex Court in the two cases cited supra. It is further contended that the oral information provided to the petitioners regarding the grounds of arrest would be insufficient and would result in non-compliance of the ratio laid down by the Supreme Court. Thus the arrest is to be declared as illegal and violative of the legal proposition laid down by the Supreme Court in the cases cited supra.

7. The learned Additional Public Prosecutor Mr.Raj Thilak appearing on behalf of the first respondent would submit that the procedures as contemplated were scrupulously followed by the first respondent while executing arrest. The remand requisition report had been served to the petitioners and before serving, the contents therein were also explained orally to the petitioners by the police officer concerned. At the time of providing information and serving of the remand requisition report, the counsel for the petitioners Mr.A.Raw