J&K Terror Funding Case: Delhi HC Issues Notice On NIA's Plea Challenging Denial Of Police Custody Extension For Three Accused

The Delhi High Court on Monday issued notice on the plea filed by National Investigation Agency (NIA) challenging a Trial Court order which had rejected it's application seeking extension of police custody for three accused persons in connection with the Jammu and Kashmir terror funding case.

Justice Rajnish Bhatnagar sought response of the three accused persons namely Owais Ahmad Dar, Arif Farooq Bhat and Kamran Ashraf Reshi while posting the matter for further hearing on February 2.

A case was registered by the NIA, pursuant to an order dated 10.10.2021 issued by the Ministry of Home Affairs, under sec. 120B, 121A, 122 & 123 of IPC and sec. 18, 18A, 18B, 20, 38 & 39 of the UAPA, 1967.

During the course of investigation, names of 13 accused persons were revealed who were allegedly connected with various terror outfits like Lashkar-e-Toiba (LeT), Jaish-e- Mohammad (JeM) , Hizb-Ul-Mujahideen (HM), Al Badar and similar other outfits and their affiliates, thereby suggesting that they were allegedly involved in radicalising, recruiting and providing logistical support to enhance the terrorist activities all over the country.

Thereafter, searches were conducted by the NIA wherein some incriminating documents were recovered and seized which, according to the agency, prima facie revealed that the accused persons were well connected with the network of terrorist organizations and were providing material and logistical support to terrorists who were allegedly engaged in terrorizing the citizens of India by targeted killing of minority population living in Kashmir Valley. Subsequently, arrests of 25 persons was made in October, November and December last year.

While Dar and Bhat were in police custody since October 16 to 28 October, 2021, Reshi was in police custody since 22 October to 27 October, 2021.

Vide order dated November 27, 2021, the Special NIA Judge of the Patiala House Court rejected NIA's plea seeking extension of police custody of the three accused persons on the ground under the second proviso in Section 43D(2)(b) of the UAPA, they had already been sent to police remand and 30 days from the first remand had expired.

The Judge was of the view that the accused could not be remanded to police custody as they had already been granted the same within first 30 days.

It was however the case of NIA that the Police Custody in respect of each of the accused persons was granted for a period less than the maximum period of 30 days as permitted by the UAPA.

"It is further submitted that the interpretation as adopted by the Ld.Single Judge would render the second proviso in Section 43D(2)(b) redundant and otiose and hamper a full and fair investigation into terrorist offences, the planning and perpetration of which are extremely complex in nature, consist of several intricate details, hatched with the cooperation, assistance and help of many persons and the gamut and canvas of which is vast and expansive," the plea reads.

It has further been averred that the data from the electronic devices of accused persons was not received in time from CERT-In and CFSL as a result of which confronting them with all relevant evidence was not possible within the first 30 days especially when the case involved large and complex international conspiracies.

NIA has therefore said that the reasoning adopted by the Trial Court judge is contrary to sec. 43D(2)(b) of the UAPA which places no such restriction on the power of the investigating agency to seek police custody and the only fetter imposed by the provision is that the total period for which an accused is remanded to police custody cannot exceed 30 days.

"The interpretation of Section 43D(2)(b) by the Ld.Special Judge is clearly contrary to its legislative intent, will have a grave ramification on investigation into terror related offences and therefore needs to be set aside," the plea reads.

Accordingly, the plea seeks quashing of the impugned order passed by the Trial Court.

Case Title: Nation Investigation Agency v. Owais Ahmed Dar & Ors.