ANKUSH KAPOOR S/O, VIPAN KAPOORversusNATIONAL INVESTIGATION AGENCY THRO SUPERINTENDENT OF POLICE AND CHIEF INVESTIGATION OFFICER

    R/CR.MA/1104/2026                               ORDER DATED: 04/05/2026




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CONDONATION OF DELAY) NO.
                         1104 of 2026
                              In
                  F/CRIMINAL APPEAL/80/2026
==========================================================
              ANKUSH KAPOOR S/O, VIPAN KAPOOR
                            Versus
   NATIONAL INVESTIGATION AGENCY THRO SUPERINTENDENT OF
        POLICE AND CHIEF INVESTIGATION OFFICER & ANR.
==========================================================
Appearance:
MR I H SAIYED SENIOR COUNSEL WITH MR AADITYA D BHATT(8580) for
the Applicant(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 1
MR L B DABHI APP for the Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
       and
       HONOURABLE MR. JUSTICE R. T. VACHHANI

                            Date : 04/05/2026

                              ORAL ORDER

            (PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

      By way of present application, the applicant – Ankush Kapoor s/o
Vipan Kapoor has sought to condone the delay of 146 days caused in
preferring the Criminal Appeal under Section 21 of the National
Investigation Agency Act, 2008 (for short the NIA Act) read with Section
483 of the Bhartiya Nagrik Suraksha Sanhita (BNSS) against the order
dated 09/07/2025 passed by the learned Special Judge (NIA), Ahmedabad
in NIA Special Case No.6 of 2024 in connection with the NIA Case
No.RC-26/2020/NIA/DLI, whereby the application seeking extension of
the period of investigation / judicial custody under Section 43(D)(2)(b) of
the Unlawful Activities (Prevention) Act, 1967 and under Section 36A(4)
of the NDPS Act, 1985 came to be allowed.


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      R/CR.MA/1104/2026                               ORDER DATED: 04/05/2026




2.        The short facts leading to the filing of the present application is
that in connection with the case registered as NIA Case No.RC –
26/2020/NIA/DLI by the respondent No.1, an application seeking
extension of the judicial custody of the arrested accused – applicant
herein from 90 days to 180 days under the provisions of Section 43D(2)
(B) of the Unlawful Activities (Prevention) Act, 1967 and under Section
36A(4) of the NDPS Act, 1985 has been moved mainly contending that
considering the facts and circumstances stated in the application, it was
not possible for the NIA to complete the investigation against the
applicant – accused herein within the period of 90 days to be completed
on 10/07/2025 and to file supplementary charge-sheet against him within
the stipulated time and therefore, it was prayed to extend the judicial
custody of the applicant – accused from 90 days to 180 days as per the
provisions of Section 43D(2)(B) of the Unlawful Activities (Prevention)
Act, 1967 and under Section 36A(4) of the NDPS Act, 1985.


2.1     Upon filing of such application, as is reflected from the order dated
09/07/2025, Notice was sent to the applicant – accused herein through the
Central Jail, Sabarmati, Ahmedabad; however the applicant – accused
alleged to have refused to accept the said notice and considering the
report of the Jail authority and after hearing the learned Special Public
Prosecutor, the said application came to be allowed by an order dated
09/07/2025.


2.2     Aggrieved by the said order dated 09/07/2025, the applicant herein
– accused has preferred an appeal before this Court wherein the delay of


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      R/CR.MA/1104/2026                              ORDER DATED: 04/05/2026




146 days has been caused and by filing the captioned application, the
applicant herein – accused has sought to condone the delay caused in
preferring the appeal.


3.      Learned Senior Advocate Mr. I H Saiyed appearing with
Mr.Aditya Bhatt, learned Advocate for the applicant – accused has
mainly contended that the delay caused in preferring the appeal is neither
deliberate nor intentional and it was caused on account of the reasons
which are beyond the control of the applicant. Learned Senior Counsel
Mr.I H Saiyed would further submit that applicant was in continuous
judicial custody since 19/04/2025 and has not been supplied with the
copy of application seeking extension. Learned Senior Counsel Mr.I H
Saiyed would further submit that neither any advance notice was given to
him; nor he was produced either physically or virtually before the learned
Competent Court to raise any such objections which has resulted into
deprivation of his indefeasible right to default bail; without being heard.


3.1     It was further contended by learned Senior Counsel Mr.I H Saiyed
that mainly the cause of delay is on account of non-supply of connected
material and delayed receipt of the impugned order as the applicant
herein – accused moved application on 30/07/2025 seeking all the
relevant applications, including the order impugned to enable him to file a
default bail application which was ultimately received by him on
24/11/2025 and thus the delay was caused in preferring the appeal in
challenging the impugned order.


3.2     In support of the above submissions, learned Senior Counsel Mr.I


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      R/CR.MA/1104/2026                             ORDER DATED: 04/05/2026




H Saiyed has placed reliance upon the order of the Hon’ble Apex Court
dated 11/12/2025 passed in Writ Petition (Criminal) No.114 of 2024
and other allied matters (Sushila Devi & Anr. vs. Union of India
Through NIA & Ors.) as well as the order dated 05/04/2024 passed in
Special Leave Petition (Criminal) Diary No.5217 of 2024 (The State of
Uttar Pradesh vs. Sarfaraz Ali Jafri) and submitted that in view of the
said orders, more particularly, when the similar issue is pending for
consideration before the Hon’ble Apex Court wherein after observing the
divergence views of the different High Courts, the Hon’ble Apex Court
have been pleased to condone the delay and since the facts of the case on
hand also stands on similar fotting and the denial of such request as
sought for by the applicant herein would deprive the applicant to place his
case; without being thrown at the threshold, which otherwise to be
appreciated judiciously.


3.3     Learned Senior Counsel Mr.I H Saiyed would submit to allow the
present application and to condone the delay caused in preferring the
appeal.


4.      By vehemently opposing the application seeking to condone the
delay, learned Advocate Mr.Ankit Shah appearing for the respondent
No.1-NIA has mainly contended that after filing of the application
seeking extension of the custody of the applicant, notice was served upon
the applicant – accused through the Central Jail, Sabarmati, Ahmedabad
where he refused to accept the said notice and therefore, it cannot be said
that the applicant – accused was not served. He would further submit that
no such averments and contentions have been made by the applicant –


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      R/CR.MA/1104/2026                              ORDER DATED: 04/05/2026




accused for causation of the delay in preferring the appeal, as also no
such satisfactory cause has been set out by the applicant to condone the
delay and therefore, he would submit to dismiss the present application.


4.1     In support of his application, learned advocate for the respondent
No.1 would rely upon the following decisions:
            1. Mahairing Hungyo @ Achan vs. National Investigation
                 Agency rendered in MC (Cril.A) No.20 of 2024 by the
                 Hon’ble High Court of Manipur.
            2. Union of India vs. Abdul Razaak & Anr., rendered in CRL.A
                 No.1224 & 1225 of 2024 by the Hon’ble High Court of
                 Madras.
            3. The State of Uttar Pradesh vs. Sarfaraz Ali Jafri rendered in
                 Special Leave Petition (Criminal) Diary No.5217 of 2024 by
                 the Hon’ble Apex Court.
            4. Sushila Devi & Anr., vs. Union of India through NIA in
                 W.P. (Criminal) No.114 of 2024 by the Hon’ble Apex Court.
            5. Samiuddin vs. State [2024 SCC OnLine TS 2066] by the
                 Hon’ble High Court of Telangana at Hyederabad.
            6. Faizal Hasamali Mirza vs. State of Maharashtra & Anr.,
                 [2023 SCC On Line Bom 1936].
            7. Sheikh Rahamtulla & Ors. vs. NIA [2023 SCC OnLine Cal
                 493].


4.2     By making the above submissions and relying upon the decisions
as stated herein above, which solely rests on the aspect of delay wherein
divergent views has been taken by the different High Courts, the learned


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     R/CR.MA/1104/2026                                  ORDER DATED: 04/05/2026




Advocate for the respondent No.1 would straneously submitted that the
grounds agitated by the applicant do not inspire any confidence and the
factum of extesnion has been sought for by the respondent No.1 herein
was well within the knowledge of the applicant who in turn deliberately
sought to refuse to accept the process sought to be served through the Jail
Superintendent as reflected from the very endorsement of the process
server or the Jail authority and therefore, the applicant is not expected to
blow hot and cold together and attemp to take the benefit of his own
wrong.


5.     Learned APP appearing for the respondent No.2 – State would
submit to pass necessary order in the facts and circumstances of the case.


6.     Having heard the learned Advocates appearing for the respective
parties and examining the facts of the case on hand, as also considering
the order passed by the Hon’ble Apex Court in Special Leave Petition
(Criminal) Diary No.5217 of 2024 (The State of Uttar Pradesh vs.
Sarfarz Ali Jafri) dated 05/04/2024 which is sought to be relied upon by
the applicant, it would appear that admittedly there is a divergence of
views between different High Courts as the High Courts of Allahabad,
Bombay, Jammu & Kashmir & Laddakh and Delhi have held that the 90
day time limit is directory, whereas a contrary view has been taken by the
High Courts of Calcutta and Kerala.             However, while observing the
aforesaid, the Apex Court has made it clear that the pendency of the
proceedings before the Court shall not operate as a stay in any
proceedings before the High Court and the High Court may consider
rather deal with the issue on its own merits.


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       R/CR.MA/1104/2026                                ORDER DATED: 04/05/2026




7.       In light of the aforesaid position of law, now the question which
would require to be determined as to whether the period of limitation as
contemplated under Section 21 (5) of the NI Act can be interpreted
differently, one in favour of the accused and another against the
prosecution. Simultaneously, the question which would also require to be
weighed as to whether the High Court is empowered to condone the
delay, if any, in preferring the appeal under Section 21(5) of the NI Act.
Since both the questions are inter-linked to each other, they are being
discussed accordingly herein after.


8.       At this juncture, let us refer to Section 21(5) of the NI Act which
reads as under:
                 “(5) Every appeal under this section shall be preferred
                 within a period of thirty days from the date of the judgment,
                 sentence or order appealed from:

                 Provided that the High Court may entertain an appeal after
                 the expiry of the said period of thirty days if it is satisfied
                 that the appellant had sufficient cause for not preferring the
                 appeal within the period of thirty days.”


         Thus, proviso to Section 21(5) provides that the High Court may
entertain the appeal after expiry of the said period of thirty days if it is
satisfied that the sufficient cause for not preferring the appeal is made
out.


9.       Now, reverting to the facts of the case on hand, it would appear
that by filing the appeal, the applicant has sought to challenge the grant of


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      R/CR.MA/1104/2026                                ORDER DATED: 04/05/2026




extension from 90 days to 180 days on the grounds agitated in the memo
of appeal and the consequence thereof flaws the personal liberty of the
accused guaranteed under the statute which imposes drastic punishment
as the right to default bail as has been correctly held by the plethora of
judgments of the Hon’ble Apex Court, are not the mere statutory rights
under the first proviso to Section 167(2) of the Code, but is part of the
procedure established by law under Article 21 of the Constitution of India
which is a fundamental right granted to the accused persons to be released
on bail if the condition of the first proviso to Section 167(2) are fulfilled.


10.     The embargo of limitation of 90 days virtually renders an
aggrieved person remediless which in the matter of rights guaranteed
under Article 21 of the Constitution of India through procedure is not the
purpose of law and the right to life and personal liberty in ordinary
circumstances cannot be irrationally barred even for a sufferrer who
seems indolent and the same cannot be rejected solely on the technical
ground.


11.     Furthermore, the default bail in comparison to the application filed
for regular bail stands squarely on a different footing and therefore, the
delay sought to be condoned in preferring the appeal at this juncture is
not condoned would amount to deprive the applicant from his statutory
right; at least to place his case, which otherwise would be determined on
its own merits and therefore, condoning the delay in preferring the appeal
would not have any bearing rather direct impact on the merits of the
appeal in question.




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      R/CR.MA/1104/2026                             ORDER DATED: 04/05/2026




12.     Thus, in light of the aforesaid discussion, when there is a
divergence of views amongst the different High Courts and the Hon’ble
Apex Court being seized with the similar issue on hand, in WP (C)
No.1076 of 2019, W.P. (Crl.) No.114 of 2024 and WP (C) No.1167 of
2021 and until the authoritative view is pronounced by the Hon’ble Apex
Court, so also without much delving on technicalities, the order to
condone the delay finds a good law. The applicant has set out the
sufficient cause as observed herein above and therefore, in view of the
discussions made in preceeding paragraphs, the present application
deserves consideration. Delay of 146 days caused in preferring the appeal
is condoned. Registry is directed to register the appeal and to assign the
regular number.


13.     It would be appropriate to note that the co-ordinate Bench of this
Court has condoned the delay of 40 days caused in filing the appeal being
F/Criminal Appeal No.86 of 2026 in respect of the present applicant –
accused in connection with the similar such offence where the application
seeking default bail in the event of non-filing of the charge-sheet within
statutory period of limiation came to be rejected by the Special Court and
the said appeal is pending for adjudication.


14.     Before parting with the order, needless to say that the reasoning
assigned in this application are confined to decide the present application
only which does not have bearing on the merits of the main matter since
number of contentions have been raised by the learned advocates
appearing for the respective parties which would ultimately go to the root
of the main matter and therefore, the said aspect is kept open to be


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     R/CR.MA/1104/2026                                                               ORDER DATED: 04/05/2026




decided in accordance with the law at appropriate stage.


                                                                                            (ILESH J. VORA,J)



                                                                                         (R. T. VACHHANI, J)
sompura

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: MANISHKUMAR JYOTINDRA SOMPURA(HC00189), Principal Pvt. Secretary, at High Court of Gujarat on 04/05/2026 14:08:19




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