Where Accused Is Booked Under Both UAPA & NDPS Act, Custody Under NDPS May Be Extended Beyond Expiry Of 180 Days Under UAPA: Jammu & Kashmir High Court

The Jammu and Kashmir High Court has held that when a person is charged both under provisions of the Unlawful Activities Prevention Act (UAPA) and the Narcotics Drugs and Psychotropic Substances Act (NDPS), further custody beyond the period of 180 days (prescribed under UAPA) may be granted under Section 36A of the NDPS Act.

"The accused including the petitioner, were not only facing investigation for offences under UA(P) Act but they were also being investigated for offences under NDPS Act, as a result of which, the Investigating Agency was entitled to seek custody of the accused beyond 180 days subject to fulfillment of conditions laid down in proviso to sub-section (4) of Section 36A of NDPS Act," Justice Sanjay Dhar noted.

Section 167 of CrPC lays that when a person is in custody, the time for investigation relating to an offence punishable with death, imprisonment for life, or imprisonment for a term of not less than ten years cannot ordinarily be beyond the period of 15 days. However, it is extendable, on the Magistrate being satisfied that adequate grounds exist for so doing, to a maximum period of 90 days. This general rule has modified application under the special enactments of UAPA and NDPS Act, allowing the investigating agency to take remand beyond 90 days.

• Section 43D(2)(b) r/w Section 2(d) of UAPA Act: An extension beyond 90 days up to 180 days can be granted by any Criminal Court having the jurisdiction to try the offence. It includes a Special Court constituted under Section 11 or Section 22 of the National Investigation Agency Act, 2008.
• Section 36A(4) of NDPS Act: An extension beyond 180 days upto one year can be granted by the Special Court having the jurisdiction.

In the present case, Arshad Allie was booked under NDPS Act, and an initial remand was sought. Thereafter, provisions of UAPA were added, and remand was obtained from a Special NIA Court. However, on the expiration of 180 days custody period under UAPA, the investigating agency approached the Court of Principal Sessions Judge, Jammu under Section 36A of the NDPS Act, seeking extension of investigation period beyond 180 days.

Senior Advocate Pranav Kohli and Advocate Farhan Mirza, representing the petitioners, argued that on expiration of 180 days, maximum period of custody under Section 43D(2)(b) UAPA, the accused is entitled to be enlarged on default bail under Section 167(2) CrPC. It was their case that further extension cannot be sought under the NDPS Act.

AAG Aseem Sawhney for the State argued that the Sessions Court was well within his jurisdiction to extend the period of custody of the petitioner beyond 180 days. 

The High Court on the other hand observed,

"Section 43-D of the UA(P) Act does not provide for extension of custody of an accused beyond 180 days. Since the investigating agency, in order to complete the investigation, required further custody of the petitioner, as such, it availed the option of seeking further custody of the accused in respect of the offences under NDPS Act, as Section 36A of the said Act makes a provision for extension of custody of an accused beyond 180 days up to one year. The Investigating Agency, accordingly, made an application before Principle Sessions Judge, Jammu."

Jurisdiction of Sessions Court to Grant Extension of Custody Under NDPS Act

The Petitioner had also argued that order granting or extending the judicial custody of the accused in the instant case could be passed only by a Special Court Designated under NIA Act and not an ordinary Sessions Judge.

In this regard, High Court noted contradiction in several High Courts' views on whether the Sessions Judge is invested with jurisdiction under Section 36(A)(4) of the NDPS Act where the Special Court has not been constituted. The Delhi High Court and Punjab & Haryana High Court have taken the view that a Judicial Magistrate/Metropolitan Magistrate has the powers of a Special Court in cases of non-constitution under Section 36A of the NDPS Act. Therefore, it is not under the jurisdiction of a Sessions Court to take cognizance of offences or remand the accused to custody during the case investigation.

On the other hand, Bombay High Court and Madras High Court have held that the Court of Sessions shall have all the powers, duties, and obligations that the Special Court has given. Also, Sessions Judge is empowered to authorize detention and take cognizance of the offences and then proceed to trial by following the procedure prescribed under NDPS Act.

The conundrum has been put to rest by the Supreme Court judgment in the Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India and others (1994). It was held therein that for a non-obstante clause in Section 36D(1)(a), NDPS Act, there is no question of the Magistrate going through the exercise of committal proceedings regarding the offences triable by the Court of Session under Section 36D of the Act.

The High Court also perused Section 36C of the NDPS Act which provides that a Special Court shall be deemed to be a Court of Session, and it has to follow the same procedure as prescribed by the provisions contained in the NDPS Act read with those provisions of the CrPC, which are consistent.

"As a necessary corollary to this, the Sessions Court, while exercising the jurisdiction of a competent court in the absence of a Special Court would also exercise the same powers and follow the same procedure as a Special Court constituted under the Act would do," the High Court held.

The Court observed that in this case, the accused had been booked for various offences under UAPA and NDPS Act, both being special provide for Special Courts. It further follows that the application for extension of the grant before the Sessions Judge was particularly for investigating offences under the NDPS Act, requiring time beyond 180 days. Section 36(A)(4) of the NDPS Act provides for the same, and Section 36D also stipulates for non-constitution of Special Courts, conferring jurisdiction upon a Court of Sessions.

"Thus there is no legal bar or impediment for the Court of Additional Sessions Judge, Jammu, to entertain and decide the application for extension of custody," the Court observed.

Conditions Under Section 36A(4) For Grant of Extension Beyond 180 Days:

Under the proviso to Section 36-A(4) of the NDPS Act is the extension beyond 180 days up to one year can be passed subject to the conditions that: (a) a report of the Public Prosecutor indicating the progress of the investigation; (b) spelling out specific reasons for the detention of accused beyond the period of 180 days.

In this regard, the petitioner's argued that no notice was issued nor the impugned order indicates the progress of the investigation, and specific reasons for the detention of the accused were brought to his notice by the Public Prosecutor in satisfaction of Section 36A(4) of the NDPS Act.

However, upholding the impugned order granting extension by the Sessions Judge, the Court observes that the application for grant of extension presents a detailed account of the progress of investigation and reasons for the extension sought. It further observes,

"Learned Additional Sessions Judge, Jammu, has, after taking note of the progress of investigation as indicated in the application of the Investigating Agency and after perusal of the case diary, recorded the reasons for extending custody of the accused including that of the petitioner beyond the period of 180 days. The order has been passed in presence of the accused including the petitioner and, as such, a separate notice was not required to be issued to the petitioner."

Also Read: Successive Govts Dragging Their Feet On Setting Up Of Special Courts Under NDPS Act, Resulting In Delayed Disposal: Jammu & Kashmir High Court

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