JUDGMENT :

M. LAXMAN, J.

1. This criminal appeal has been filed against the order dated 17.01.2023 in Crl.MP.No. 09 of 2023 in RC-03/2022/NIA/HYD on the file of the IV Additional Metropolitan Sessions Judge-cum-Special Court for NIA cases, Nampally, Hyderabad, whereunder appellants/ accused Nos.32 to 36 were granted police custody for three days i.e. from 19.01.2023 to 21.01.2023.

2. The impugned application i.e. Crl.MP.No. 09 of 2023 was moved by the National Investigation Agency (NIA) seeking police custody of accused Nos.32 to 36 for a period of five days based on collection of certain forensic evidence from the cell phones of other accused and to elicit certain information relating to data obtained from the mobiles phones.

3. It is not in dispute that the impugned application was moved when the appellants completed judicial custody of 117 days. This means, the impugned application was moved after 30 days, which is the permissible period for grant of police custody in terms of the Unlawful Activities (Prevention) Act, 1967 (for short “the Act”).

4. The contention of the learned counsel for the appellants is that once the police custody is availed by the NIA within 30 days, their second application for further custody, even on good reasons for delay beyond 30 days, is not maintainable. According to him, the order impugned is without jurisdiction and suffers from illegality.

5. The Special Public Prosecutor representing NIA has contended that the second proviso to 43 D (2) (b) of the Act enables the NIA to file the application for police custody beyond 30 days, if reasonable explanation is offered for the delay in moving such application. According to him, the said proviso is an exception to Section 167(2) of the Code of Criminal Procedure, 1973. He further contended that there is no limitation for moving number of applications within 30 days and there is no such language used in either in the Act or in Cr.P.C barring the second application in terms of second proviso of Sec.43 D (2) (b) of the Act.

6. Learned counsel for the appellants has relied upon the Judgment of the Bombay High Court in case of State of Maharashtra vs. Pawankumar Fakrichand Uikey, Criminal Appeal No. 22 of 2023, dated 18.01.2023 whereunder the Bombay High Court held as follows:

“14. The Supreme Court while considering the effect of second proviso observed that, it does bring an alteration of the law in Anupam J. Kulkarni case. It is explained that as per proviso, if a person is remanded to Judicial Custody and the National Investigating Agency has not been given Police Custody during the first 30 days, then on reasons being given, Court may grant Police Custody.”

7. In the light of the said contention, it is apt to refer to Section 167 (2) of the Code of Criminal Procedure, 1973, which reads here under:

“167. Procedure when investigation cannot be completed in twenty-four hours:

(1)..........

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that (a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding:

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.

(ii) sixty days, where the investigation relates to any other offence, and, on the expir