IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON

22.02.2022

DELIVERED ON

11.03.2022

CORAM:

THE HON’BLE MR.JUSTICE P.N. PRAKASH

and

THE HON’BLE MR.JUSTICE A.A. NAKKIRAN

Crl.A.No.80 of 2022

Union of India represented by

The Inspector of Police

National Investigation Agency

Chennai

(R.C. 16/2019/NIA/DLI)

...Appellant

Vs.

Divan Mujipeer @ Divan

S/o.Mydeen Abdul Kader

...Respondent

Criminal Appeal filed under Section 21 of the National

Investigation Agency Act to set aside the order dated 20.12.2021

passed in Crl.M.P. No.556 of 2021 on the file of the Special

Court for NIA Act Cases, Poonamallee and grant 5 days police

custody of the respondent who is detained at Sub Jail,

Poonamallee, to the appellant.

For appellant

:

Mr.R.Karthikeyan

Special Public Prosecutor

for NIA Act Cases

For respondent

:

Mr.Abdul Basith

for Mr.A.Rawther Naina Mohamed

Amicus Curiae

:

Mr.Nithyaesh Nataraj

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:

https://hcservices.ecourts.gov.in/hcservices/

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 i