Supreme Court of India
REDAUL HUSSAIN KHANversusNATIONAL INVESTIGATION AGENCY
- Citation
- 2009 INSC 1248
- Decided
- 19 November 2009
- Disposal
- Dismissed
Holding
The Supreme Court held that the UAPA provisions apply to the petitioner’s alleged conduct and that the Sessions Judge validly exercised jurisdiction to extend the investigation period, thereby denying statutory bail.
Summary
The petitioner, Redaul Hussain Khan, was arrested on 31 May 2009 for allegedly sending money to an extremist group later declared an unlawful association under the Unlawful Activities (Prevention) Act, 1967 (UAPA). While the investigation was transferred to the National Investigation Agency, the petitioner sought statutory bail, arguing that the organization had not been declared unlawful at the time of his arrest and that the extension of the investigation period under Section 430 of the UAPA was therefore invalid. The Supreme Court held that the mere timing of the declaration does not preclude the organization from having engaged in terrorist activities, nor does it negate the petitioner’s knowledge of such acts. Consequently, the Court affirmed the Sessions Judge’s jurisdiction to extend the investigation period and rejected the bail application. The Special Leave Petitions were dismissed, leaving the petitioner in custody.
Issues considered
- Whether the provisions of the Unlawful Activities (Prevention) Act, 1967, particularly Sections 13, 15, 17 and 430, are attracted to the petitioner’s alleged conduct despite the organization being declared an unlawful association after his arrest.
- Whether the Sessions Judge (Special Court) had jurisdiction to extend the period for completion of investigation under Section 430(2)(b) of the UAPA read with Section 167 of the Code of Criminal Procedure.
- Whether the petitioner is entitled to statutory bail when the investigation period is extended beyond 90 days.
Legislation cited
- Code of Criminal Procedure, 1973s. 167
- National Investigation Agency Act, 2008s. 21
- Unlawful Activities (Prevention) Act, 1967s. 13, s. 15, s. 17, s. 430(2)(b), s. 43-D(2)(b)
Subjects
UAPAstatutory bailextension of investigationterrorist actunlawful associationCrPC Section 167National Investigation Agencybail jurisdiction
Judgment
[2009] 15 (ADDL.) S.C.R. 1038
A REDAUL HUSSAIN KHAN
v.
NATIONAL INVESTIGATION AGENCY
(SLP (Crl.) No.7343 of 2009)
NOVEMBER 19, 2009
B [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]
BAIL:
...
UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967:
c
ss.43-D(2)(b), 3, 13, 15 and 17 - 'Terrorist act' - Petitioner
arrested on the allegations that they were sending money to
an extremist organization - Said organization later declared
as "unlawful association" - Pleas for granting statutory bail for
non-completion of investigation within prescribed time, and that
D
the organization concerned was declared an "unlawful
association" much later than the arrest of the petitioner and that .....
the money recovered from him belonged to his mother - Held:
Cannot be sustained - It cannot be said that merely because
the organization concerned had not been declared as an
E "unlawful association" when the petitioner was arrested, the said
organization could not have indulged in terrorist acts or that
petitioner could not have had knowledge of such activities -
Prayer for grant of statutory bail has to be rejected since the
Sessions Judge (Special Court) had the jurisdiction to extend
F the time for completion of investigation - As regards as the ~
recovery of money from the petitioner's custody, it would require
further investigation into the allegations made not only against
the petitioner but the other accused persons as well - Code of
Criminal Procedure, 1973 - s.167.
G
CRIMINAL APPELLATE JURISDICTION : SLP (Criminal)
Nos. 7343 of 2009.
From the Judgment & Order dated 19.09.2009 of the High
Court of Gauhati at Guwahati in Crl. A. No.148 of 2009.
H 1038
REDAUL HUSSAIN KHAN v. NATIONAL 1039
INVESTIGATION AGENCY
WITH A
SLP (Crl.) No. 7399 of 2009.
Pradip Ghosh, Altaf Ahmed, Azim H. Laskar, Sachin Das,
Abhijit Sengupta, Rana Mukherjee, Vikash Kar Gupta, Vishal
Arun, for the Appellant. B
H.P. Rawal, ASG, Chinmoy Pradip Sharma, Mihir
Chatterjee, S.N. Terdal, for the Respondent.
The following Order of the Court was delivered
ORDER
c
1. The petitioner herein was arrested on 31st May, 2009,
along with one Mohit Hojai and on the same day they were
produced before the Chief Judicial Magistrate, Kamrup, at
Guwahati. In the forwarding report it was indicated that the o
ground for arresting the petitioner was that during interrogation
of Mo hit Hojai, who was the Chief Executive Member of the North
Cachar Hills Autonomous Council, had disclosed that he was
sending an amount of Rs.1 crore to an organization known as
DHD(J), an extremist organization, to enable it to purchase arms E
and ammunitions. It was indicated that Mohit Hojai had also
disclosed that he had collected Rs.30 lakhs from the petitioner
under different schemes.
2. On the prayer made on behalf of the investigating agency,
the Chief Judicial Magistrate, Kamrup, sent the petitioner to F
police custody on 31st May, 2009. After the expiry of the said
period of two days, a prayer was made for extension of police
custody which was allowed for a further period of two days by
{ the learned Magistrate by his order dated 2nd June, 2009.
Further prayer for custodial interrogation was rejected by the G
Chief Judicial Magistrate, Kamrup, who, however, granted
permission to the investigating officer to interrogate the petitioner
in the Central Jail, Kamrup, Guwahati. On the same day, the
learned Magistrate also rejected the petitivner's prayer for grant
H
1040 SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R.
A of bail.
~-
3. While the investigation was pending with the State Police,
the National Investigating Agency constituted under the National
Investigation Agency Act, 2008 (hereinafter referred to as "the
2008 Act") took over the investigation on 5th June, 2009 and the
B case was renumbered as N.l.A. Case No.1of2009. A separate
First Information Report was also filed by the National
Investigating Agency (hereinafter referred to as "NIA) in the Court
of the Chief Judicial Magistrate, Kamrup. On 6th June, 2009, the
prayer made by NIA for further ten days' custody of the petitioner
c was allowed by the learned Magistrate. A similar prayer made
on 15th June, 2009, was rejected on 29th June, 2009. The·
learned Magistrate also rejected the bail application filed on
behalf of the petitioner along with the co-accused. Immediately
thereafter, the petitioner filed a bail application before the
D Guwahati High Court and while the same was pending, the
Government of India, Ministry of Home Affairs, issued a
....
notification dated 9th Ju!y, 2009, in exercise of its powers under
Section 3 of the Unlawful Activities (Prevention) Act, 1967
(hereinafter referred to as the "1967 Act"), declaring the DHD(J)
E along with its factions, wings and front organizations to be an
"unlawful association".
4. On 29th July, 2009, the learned Single Judge of the
Guwahati High Court dismissed the petitioner's bail application
on the ground of jurisdiction. The petitioner filed another bail
F application before the Sessions Judge (Special Court), Kamrup, l
Guwahati, which was rejected on 14th August, 2009. Thereafter,
on an application made by the NIA on 27th August, 2009, the
Sessions Judge (Special Court), Kamrup, by its order dated 28th
'l
August, 20.09 extended the period for completion of
G investigation by a further period of 60 days in terms of Section
430(2)(b) of the 1967 Act as amended, read with Section 167
Cr.P.C. The said order of the learned Single Judge, Special
1
Court, Kamrup, was challenged by the petitioner herein before
the Division Bench of the Guwahati High Court on 29th May, 2009,
H
REOAUL HUSSAIN KHAN v. NATIONAL 1041
INVESTIGATION AGENCY
-4.
under Section 21 of the 2008 Act by way of Criminal App~al A
No.148/2009. The same was dismissed on 19th September,
2009 against which the present Special Leave Petition has been
filed.
5. Mr. Pradip Ghosh, learned Senior Advocate, who
B
appeared in support of the Special Leave Petition questioned
the order of the High Court and also that of the learned Sessions
Judge (Special Court) mainly on two grounds. Learned counsel
firstly urged that the allegations made against the petitioner in
the First Information Report do not make out a case under
Section 13 of the 1967 Act. He then submitted that as no case c
had been made out against the petitioner which would attract the
provisions of Section 13 of the 1967 Act, the provisions of
Section 17 also would not be attracted to the petitioner's case
and accordingly, the provisions of Section 430 would have no
application as far as the petitioner was concerned. 0
_.,
6. Mr. Ghosh urged that in order to attract the provisions of
Section 17 of the aforesaid Act it would be necessary for the
investigating agency to show that the petitioner had either
collected funds for or provided funds to OHO(J) having
E
knowledge that such funds were likely to be used by the said
organization to commit a terrorist act.
7. Mr. Ghosh submitted that only on 9th July, 2009, long after
j
the petitioner's arrest on 31st May, 2009, OHO(J) along with all
its factions, wings and front organizations were declared to be F
an unlawful association. Mr. Ghosh submitted that at the point of
time when the offence was alleged to have been committed by
the petitioner, OHO(J) had not been so declared and it was not,
therefore, possible for the petitioner to have knowledge that
OHO(J) was indulging in "unlawful terrorist acts". According to G
Mr. Ghosh, if the provisions of Section 430 of the 1967 Act did
not apply to the petitioner, the extension of the period of
investigation beyond 90 days, as contemplated by Section
167(2) Cr.P.C. must be held to be illegal and the petitioner would,
therefore, be entitled to the grant of statutory bail in accordance H
REDAUL HUSSAIN KHAN v. NATIONAL 1043
INVESTIGATION AGENCY
activities. Accordingly, in view of the definition of "terrorist act" A
. in Section 15 of the 1967 Act and the provisions of Sections 13
and 17 thereof, there was little doubt that even on the date when
the petitioner was apprehended, DHD(J) was indulging in
terrorist acts, although, it came to be declared as an "unlawful
,i association" sometime later. Mr. Rawal urged that having regard B
to the above, the Special Leave Petitions filed against the order
of the High court refusing to grant bail were liable to .be
dismissed.
"' 13. We have carefully considered the submissions macie
on behalf of the respective parties and we are unable to agr~e c
• with Mr. Ghosh that the provisions of the Unlawful Activities
(Prevention) Act, 1967, would not be attracted to the facts of the
case. We are also unable to accept Mr. Ghosh's submissions
that merely because DHD(J) had not been declared as 'an
"unlawful association" when the petitioner was arrested, the said ·o
organization could not have indulged in terrorist acts or that the
. --; · petitioner could not have had knowledge of such activiti13s .
-1
Accordingly, Mr. Ghosh's submissions regarding the grant of
statutory bail have to be rejected since, in our view, the learned
Sessions Judge (Special Court) had the jurisdiction to extend E
the time for completion of the investigation.
14. As far as Mr. Ghosh's second submission is concerned,
the recovery of Rs.4 lakhs from the petitioner's custody would
require further investigation into the allegations made not dnly
F
' against the petitioner but the other accused persons as well.
15. We are not, therefore, inclined to entertain both the
Special Leave Petitions and the same are, accordingly,
dismissed.
R.P . Special Leave Petitions dismissed. G
•
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