NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(s). 863­864  OF 2019 (Arising out of SLP(Crl.) No(s). 9783­9784 of 2018)

STATE BY THE SUPERINTENDENT OF POLICE, NATIONAL INVESTIGATION AGENCY, KOCHI     …..APPELLANT(s)

VERSUS

SHAKUL HAMEED     …..RESPONDENT(s)

J U D G M E N T

Rastogi, J.

Leave granted.

2. The instant appeals have been filed against the judgment

dated 12th  September, 2018 passed by the High Court of

Judicature  at  Madras granting  bail in  default to the  accused

respondent  after setting  aside the  order  dated  12th  December,

2017 and 18th January, 2018 passed by the Special Court(under

National Investigation Agency Act, 2008), Chennai holding that

the detention of the accused/respondent for a further period of

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90 days was not in compliance of Section 43D(2)(b) of the

Unlawful Activities(Prevention) Act, 1967(hereinafter being

referred to as (“UAP Act, 1967”)

3. The  facts giving rise to these appeals  insofar as they are

relevant for disposal are that as per the case of the prosecution,

nine named persons including the accused respondent 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 so­called

ISIS.   The National Investigating Agency, New Delhi registered a

case no. R.C. No. 03/2017/NIA/DLI on 26th January, 2017 under

Sections 120B IPC and Sections 17,18, 18­B, 20, 38, 39 and 40

of the UAP Act, 1967 against nine accused persons including the

accused respondent(A­3).  

4. An allegation against accused respondent(A­3) was that he

was a radicalized youth from Chennai who, consequent to the

criminal conspiracy had attempted to join ISIS/Daesh in Syria.

However,  he  was intercepted  by the  Turkish  authorities  while

attempting to cross  over to  Syria  and  deported to India from

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Turkey on 29th August, 2015.  He was arrested and remanded to

judicial custody on 18th  September, 2017 as he is alleged to be

one of the conspirators.

5. As per his date of arrest, 90 days prior thereto was to expire

on 16th December, 2017.   On 11th December, 2017, the Special

Public Prosecutor filed a report before the Special Court,

assigning specific reasons, praying for the extension of  judicial

detention of the accused respondent for a further period of 90

days to enable the investigating agency to complete the

investigation.   The written objections were filed by the accused

respondent on  11th  December, 2017.  The  Special  Court, after

affording opportunity of hearing to the respondent accused who

appeared through  his counsel and taking  note of the  written

submissions opposing  the  request  made by  the  Special  Public

Prosecutor for judicial detention for a further period of 90 days as

prayed for, after recording its satisfaction on the specific reasons

assigned by the Special Public Prosecutor, granted judicial

detention for a further period of 90 days under Sections 43D(2)(b)

of the UAP Act, 1967 vide its order dated 12th December, 2017.

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6. At the same time, application filed by the accused

respondent for  bail  under  Section  167(2) of  Code of  Criminal

Procedure, 1973 read with Section 43D of the UAP Act, 1967 was

dismissed vide Order dated 18th  January, 2018 having become

infructuous.  

7. Aggrieved by the aforesaid orders dated 12th  December,

2017 & 18th  January,  2018, the  accused respondent(A­3) filed

appeal under Section 21 of the National Investigation Agency Act,

2008  before the  High  Court.   The  High  Court of  Madras, on

appraisal of the record, arrived at the conclusion that the specific

reasons which have been assigned by the Special Public

Prosecutor in his report seeking extension of time does not meet

the requirement of law as contemplated under Section 43D(2)(b)

of the UAP Act, 1967 and accordingly set aside the order of the

Special Court dated 12th December, 2017 and 18th January, 2018

and in consequence thereof, granted statutory bail in default to

the respondent accused under its Order dated 12th  September,

2018 which is a subject matter of challenge in appeals before us.

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8. As informed to this Court, that (A­1) Haja Fakkurudeen has

been absconding but charge­sheet has been filed against all the

accused persons and Khaja Moideen @ Abdullah Muthalif(A­2)

was arrested on 15th  September, 2017 and bail was granted to

him on 23rd January, 2019 and Ansar Meeran(A­4) was arrested

on 12th  February, 2018  and  bail  was  granted to  him on  19th

November, 2018 and the case is pending for framing of charge

under Section 228 of  Code of  Criminal Procedure,  1973.   The

case against A­5 to A­7 has been closed by NIA.  

9. Learned counsel for the appellant submits that Paras 8 to

12  of the report  of  Special  Public  Prosecutor indicate specific

reasons like need for further  NIA custody of the accused as

envisaged in Section 43D(2) of the UAP Act, 1967, to verify the

facts revealed through experts and for unravelling the conspiracy

in  the case for the  detention of the  accused respondent for  a

further period of 90 days and once the satisfaction was recorded

by the learned Judge of Special Court meeting out the

requirements envisaged under Section 43D(2)(b) of the UAP Act,

1967, such satisfaction recorded after perusal of the record could

not have been overturned by the High Court unless very strong

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reasons were forthcoming, which has not been pointed out under

the impugned judgment.    

10. Per contra, while supporting the order of the High Court,

learned counsel for the respondent submits that though the

reasons have been assigned by the Special Public Prosecutor in

his report which may be relevant for  further  investigation, but

was not relevant to justify further detention of the accused

respondent for a further period of 90 days and that being the

mandate of law as envisaged in Section 43D(2)(b) of the UAP Act,

1967, no error was committed by the High Court in setting aside

the order of the Special Court under the impugned judgment.

11. Learned counsel for the respondent in alternate further

submits that the detention of the accused respondent might have

been necessary at the relevant point of time for further progress

of the investigation but the fact situation has later changed and

the co­accused persons who are similarly situated(A­2) & (A­4)

have been granted bail on 23rd January, 2019 and 19th November,

2018 on merits by the competent Court of jurisdiction after filing

of the charge­sheet and in either of the order of bail granted to

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the accused nos. 2 and 4, prosecution has not filed any

application for cancellation. The present accused respondent(A­3)

is also on bail may be in compliance of the impugned judgment

and when it is not the case of the appellant that after statutory

bail was granted to him in compliance of the impugned judgment

dated 12th  September,  2018,  he has committed any breach or

violated the conditions of the bail granted to him.  At least, in the

given facts and circumstances, even if there is some merit in the

submission made by the appellant, at least the bail which was

granted to the accused respondent in the changed

circumstances, may not be interfered with by this Court.

12. It is  not  disputed  that in the instant  cases, the  accused

respondent(A­3) was arrested on 18th September, 2017 and initial

period of 90 days from the date of arrest was to expire on 16th

December, 2017 and prior thereto on 11th December, 2017, the

report was submitted by the Special Public Prosecutor assigning

specific reasons for seeking detention of the accused respondent

for a further period of 90 days under Section 43D(2)(b) of UAP

Act,  1967 and after  a copy of  application was supplied to the

accused respondent, he filed his written objections through

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counsel and after affording opportunity of hearing to the parties,

the Special Court, after recording its satisfaction, in reference to

the specific reasons assigned for detention of the accused

respondent beyond a period of 90 days allowed the application

filed by the Special Public Prosecutor vide its order dated 12th

December, 2017.

13. The extract of the report submitted by the Public Prosecutor

indicating the progress of the investigation and the specific

reasons required for detention of the accused respondent for a

further period of 90 days as envisaged under Section 43D of the

UAP Act are stated as under:­

8. It is further submitted that the investigation is continued the facts disclosed by the accused while on custody needs further verification and in progress.  The electronic gadgets seized at the instance of the accused needs to be forensically analysed.   In this regard the electronic gadgets seized from accused were forwarded to C­DAC, Thiruvananthapuram, through this Hon’ble Court, needs to be analysed by the experts of C­DAC, Thiruvananthapuram and report yet to be received. The accused persons may be required for further police custody from judicial custody for the purpose of investigation as envisaged in Section 43D(2)(b) of UAP Act, 1967 to verify any facts being obtained from the forensic expert.

9. It is further submitted that investigation against the absconding accused Haja Fakkurudeen(A­1), who had joined the activities of ISIS in Syria, and other accused named in the FIR are in progress.  The travel details of the accused are being verified through Immigration

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authorities to  confirm  the  complicity  of the  accused tour and travels to Syria and other places.  A number of witnesses acquainted with facts of the case are yet to be examined and the  investigation period beyond 90 days if not expended, it may cause serious prejudice and enlarging accused Khaja Mohideen (A­2) and Shakul Hameed (A­3) on bail at this stage may hamper the investigation also.

10. It is submitted that the NIA is conducting investigation abroad, on the role of accused and associates operating from abroad in this case.  In this regard requests have been send to the  Republic of Singapore under Mutual Legal Assistance Treaty(MLAT) between Republic of India and the Republic of Singapore and the reply on certain aspects are yet to be received from the requested country. Further, the process of sending request to the United States of America(USA) under Mutual Legal Assistance Treaty(MLAT) between Republic of India and USA to get the details of social media accounts and communications between accused and their associates in India and abroad is under progress.

11. It is further submitted that the NIA has taken steps to  unravel the larger conspiracy including the clandestine terror activities of the accused, their association with other terrorist organizations, their possible locations in India and abroad and the sources of funding etc.   Besides, requisitions were sent to the concerned service providers to get the CDR’s of all the mobile phones recovered and the other numbers used by the accused with a view to analyse  the same  for establishing the linkages between the absconding accused and field verification needs to be done.   The names accused in the FIR is yet to be secured and the involvements of those persons have also been investigated and investigation is  in crucial stage and therefore it is not possible to complete the investigation within the said period of  ninety days.  Therefore,  as indicated the progress of the investigation and the specific reasons above for the detention of the accused beyond the said period of ninety days extend the said period up to one hundred and eighty days for the purpose of investigation.

12. It is further submitted that the investigation is proceeding in the right direction.   Since the accused

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are hard core ISIS ideologists, detailed further interrogation is inevitable to collect more evidence and for unravelling the larger conspiracy behind the crime. There may be imminent threat to the security of the nation if the  accused  are  not interrogated in  detail, more evidence is not collected and detailed investigation is not done to identify and secure other members of the group.”  

14. Before  we proceed  to  examine  the  question raised  in  the

instant appeal any further, it  may be apposite to take note of

Section 43D(2)(b) of the UAP Act, 1967:­

“43D.Modified application of certain provisions of the Code.

(1)­ ­ ­ xxx

(2)Section 167 of the Code shall apply in relation to a case involving  an offence  punishable  under this  Act subject to the modification that in sub­section (2),­

(a) the references to “fifteen days”, “ninety days” and “sixty days”, wherever they occur, shall be construed as references to “thirty days”, “ninety days” and “ninety days” respectively; and

(b) after the proviso, the following provisos shall be inserted, namely: ­

        Provided further that  if it is not possible to complete the investigation  within the said period of ninety days, the Court may if it is satisfied with the report of the Public Prosecutor indicating the progress of the investigation  and  the  specific reasons for the detention of the accused beyond the said period of ninety days, extend the said period up to one hundred and eighty days:

   Provided also that if the police officer making the investigation under this Act, requests, for the purposes of investigation, for police custody from judicial

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custody of any person in judicial custody, he shall file an affidavit stating the reasons for doing so and shall also explain the delay, if any, for requesting such police custody.”

15. The necessary ingredients of the proviso to Section 43D(2)(b)

of the UAP Act, 1967 has to be fulfilled for its proper application.

These are as under:­

A. It has not been possible to complete the investigation within the period of 90 days.

B. A report to be submitted by the Public Prosecutor.

C. Said report indicating the progress of investigation and the specific reasons for detention of the accused beyond the period of 90 days.

D. Satisfaction of the Court in respect of the report of the Public Prosecutor.

16. The scope of Section 43D(2)(b) of UAP Act, 1967 has been

recently examined by a three Judge Bench of this Court in State

of Maharashtra Vs.  Surendra Pundlik Gadling & Ors.  2019

SCC Online SC 188 and has not detained us any further.

17. Taking note of the specific reasons which have been

assigned by the Special Public Prosecutor in his report of which

reference has been made(supra), we are satisfied that the specific

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reasons assigned by the Public Prosecutor fulfil the mandate and

requirement of Section 43D(2)(b) of the UAP Act, 1967 and that

was  considered  by the learned  Judge  of the  Special  Court in

detail, who after recording its satisfaction, granted detention to

the accused for a further period of 90 days under its Order dated

12th December, 2017.   

18. We cannot be oblivious of the changed circumstances which

has been brought to our notice regarding the present FIR dated

26th January, 2017.  Charge­sheet has been filed against all the

four accused persons(A­1 to A­4) including the accused

respondent(A­3) on 13th March, 2018 and the accused no. 2 and

accused  no. 4 are on  bail from 23rd  January,  2019  and  19th

November, 2018 and the matter is pending for framing of charge

and it is not the case of the appellant that the present accused

respondent after being enlarged on  bail in compliance of the

impugned judgment dated 12th September, 2018 has committed

any breach or violated the conditions of grant of bail.   

19. To conclude, we are not in agreement with the conclusions

arrived at by the High Court in the impugned judgment dated

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12th September, 2018 but taking note of the later developments

and the supporting facts brought to our notice, we are not

inclined to interfere with the final relief to the extent of granting

default bail to the accused respondent in the circumstances of

the case on hand.  However, it may be open for the prosecution to

apply for cancellation of bail, if any exigency arises in future.  We

consider it further to direct the learned Presiding Officer of the

Special Court, NIA, to expedite and conclude the trial on or before

March, 2020.   Compliance report be sent to the Registry of this

Court.

20. Consequently, the appeals are disposed of in the above

terms.

 …………………………J. (A.M. KHANWILKAR)

…………………………J. (AJAY RASTOGI)

NEW DELHI May 07, 2019

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