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 Daily Guardian
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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

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In a significant, stimulating and serious development, we are seeing how the Jammu and Kashmir High Court in a latest, learned, laudable and landmark judgment titled Arshad Ahmad Allaie Vs UT of J&K & Anr in CRM(M) No. 653/2019 that was reserved on June 24, 2021 and delivered finally on July 6, 2021 has held quite elegantly, eloquently and effectively 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. Justice Sanjay Dhar who delivered this notable judgment observed thus: “The accused including the petitioner, were not only facing investigation for offences under UAPA 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.” In the present case, we see how Arshad Allaie 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.

To start with, a Single Judge Bench of Justice Sanjay Dhar of Jammu and Kashmir High Court queers the pitch of this brief, brilliant, balanced and bold judgment by first and foremost observing in para 1 that, “An important question of law that has arisen in the instant petition is “whether an order granting extension of period of custody of accused beyond 180 days passed by a Sessions Court in terms of Section 36-A of Narcotic Drugs and Psychotropic Substances Act, 1985 [“NDPS Act” for short hereinafter] in a case where the accused has been booked for various offences under NDPS Act read with offences under Unlawful Activities (Prevention) Act, 1967 [“UA(P) A Act”], is without jurisdiction.”

Needless to say, the Bench then puts forth in para 2 that, “Before answering the aforesaid question, it is necessary to briefly, summarize the facts giving rise to the filing of the instant petition.”

To put things in perspective, the Bench then enunciates in para 3 that, “The record of the case shows that the petitioner along with other accused persons was booked in FIR No.38/2019 for offences under Section 8/21/22/27-A/29 NDPS Act and Section 13, 16, 17 and 21 UAPA Act by Police Station, Jammu. Initially the FIR was registered for offences under Section 8/21/22/27-A/29 NDPS Act only and the petitioner was arrested on 27.05.2019. However, during investigation of the case, offences under Section 13, 16, 17 and 21 UAPA Act were added on 30.07.2019.”

As it turned out, the Bench then observes in para 4 that, “After obtaining initial remand of the accused in connection with investigation of offences under NDPS Act, upon addition of offences under UA(P) Act, remand of the accused from time to time, was obtained by the Investigating Agency from Special Court designated under Section 22 of the National Investigation Agency Act [“NIA Act” for short]. Ultimately, the judicial remand for extending the period of investigation beyond 90 days in terms of Section 43-D of UA(P) Act was granted by the Designated Court under NIA Act, in terms of its order dated 23.08.2019. The extended period of judicial custody of the accused including that of the petitioner expired on 22.11.2019.”

What next followed is then stated in para 5 that, “After the expiry of extended period of custody granted by the Designated Court under NIA Act, the Investigating Agency approached the Court of Principle Sessions Judge, Jammu, with an application seeking extension of period of investigation beyond 180 days in terms of Section 36-A of NDPS Act. The application came to be assigned to learned Additional Sessions Judge, Jammu, who vide his order dated 22.11.2019 extended judicial custody of the accused including that of the petitioner herein for a further period of 20 days. It is this order of learned Additional Sessions Judge, Jammu, which has been challenged by the petitioner through the medium of instant petition.”

On the one hand, the Bench brings out in para 6 that, “The main contention of the petitioner is that the 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. Thus, according to the petitioner, the impugned order extending the judicial custody of the petitioner is without jurisdiction and, therefore, non-est in the eyes of law. On this premise, it is urged that once the period of 180 days of petitioner‟s custody had expired, he was entitled to be enlarged on default bail, particularly when he had made an application for grant of such relief before the Designated Court under NIA Act as the investigating agency had failed to file the challan against the petitioner upon the expiry of aforesaid statutory period of 180 days.”

On the other hand, the Bench then also brings out in para 7 that, “The petition has been resisted by the respondents by filing a reply thereto. In their reply, respondents, besides narrating the facts of the case, have contended that the petitioner has not only been booked for offences under UA(P) Act but he has also been booked for various other offences under NDPS Act, as such, the learned Additional Sessions Judge was well within his jurisdiction to extend the custody of the petitioner beyond 180 days in terms of Section 36-A of NDPS Act. It has been averred that the petitioner and co-accused are involved in serious offences relating to narco terrorism as they have links with anti-national elements residing across the border and during investigation of the case, commercial quantity of heroin along with a huge amount of cash has been seized from the possession of the petitioner and his associates. On the basis of these submissions, the respondents have sought dismissal of the petition.”

While taking the right stand, the Bench then thinks it apposite to first state in para 11 that, “Before determining the merits of rival contentions of learned counsel for the parties, we need to notice the relevant provisions governing remand of accused to custody as contained in UA(P) Act and NDPS Act.”

To be sure, the Bench then mentions in para 12 that, “Section 43-D of UA(P) Act provides for modified application of certain provisions of the Code. It reads as under:

“43D. Modified application of certain provisions of the Code.—(1) Notwithstanding anything contained in the Code or any other law, every offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of clause (c) of section 2 of the Code, and “cognizable case” as defined in that clause shall be construed accordingly.

(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 sub-section (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 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.”

(3) Section 268 of the Code shall apply in relation to a case involving an offence punishable under this Act subject to the modification that— (a) the reference in sub-section (1) thereof—

(i) to “the State Government” shall be construed as a reference to “the Central Government or the State Government.”;

(ii) to “order of the State Government” shall be construed as a reference to “order of the Central Government or the State Government, as the case may be”; and

(b) the reference in sub-section (2) thereof, to “the State Government” shall be construed as a reference to “the Central Government or the State Government, as the case may be”.

(4) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person accused of having committed an offence punishable under this Act.

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release:

Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section (5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in subsections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorisedly or illegally except in very exceptional circumstances and for reasons to be recorded in writing.””

To state the ostensible, the Bench then brings out in para 13 that, “Clause (b) of sub-section (2) of Section 43D, as quoted above, provides that if it is not possible to complete the investigation within a period of 90 days, the Court, 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 period of 90 days, is empowered to extend the said period up to 180 days.”

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Truth be told, the Bench then specifies in para 14 that, “The ‘Court’ has been defined in Section 2(d) of the UA(P) Act to mean a criminal court having jurisdiction under the Code to try offences under the Act and includes a Special Court constituted under Section 11 or under Section 22 of the NIA Act, 2008.”

As is quite palpable, the Bench then specifies in para 15 that, “From this, it is clear that jurisdiction to extend detention of an accused beyond the period of 90 days in relation to a case where the accused is booked for offences under UA(P) Act, which is included in the Schedule appended to NIA Act, vests with Special Court constituted in terms of provisions of NIA Act.”

Quite rightly, the Bench then puts forth in para 16 that, “So far as the relevant provisions of NDPS Act are concerned, Section 36-A provides for modified application of certain provisions of Code of Criminal Procedure. It reads as under:

“36A. Offences triable by Special Courts.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973—

(a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government;

(b) where a person accused of or suspected of the commission of an offence under this Act is forwarded to a Magistrate under sub-section (2) or sub-section (2-A) of section 167 of the Code of Criminal Procedure, 1973 (2 of 1974), such Magistrate may authorise the detention of such person in such custody as he thinks fit for a period not exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate:

Provided that in cases which are triable by the Special Court where such Magistrate considers—

(i) when such person is forwarded to him as aforesaid; or

(ii) upon or at any time before the expiry of the period of detention authorised by him,

that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction;

(c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section;

(d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial.

(2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial.

(3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974), and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to “Magistrate” in that section included also a reference to a “Special Court” constituted under section 36.

(4) In respect of persons accused of an offence punishable under section 19 or section 24 or section 27A or for offences involving commercial quantity the references in sub-section (2) of section 167 of the Code of Criminal Procedure, 1973 thereof to “ninety days”, where they occur, shall be construed as reference to “one hundred and eighty days”:

Provided that, if it is not possible to complete the investigation within the said period of one hundred and eighty days, the Special Court may extend the said period up to one year on 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 one hundred and eighty days.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the offences punishable under this Act with imprisonment for a term of not more than three years may be tried summarily.”

As we can see, the Bench then observes in para 17 that, “From a perusal of the aforesaid provision it is clear that initially detention of a person, who is booked for an offence under NDPS Act, can be authorized by a Judicial Magistrate for a period not exceeding fifteen days and by an Executive Magistrate for a period not exceeding seven days, where-after, in the cases that are triable by a Special Court, the person detained has to be forwarded to the Special Court having the jurisdiction.”

Quite clearly, the Bench then holds in para 18 that, “Proviso to sub-section (4) of Section 36-A, as quoted above, gives jurisdiction to Special Court to extend the custody of a person who is accused of offences under NDPS Act beyond 180 days up to one year on the report of the Public Prosecutor indicating progress of the investigation and the specific reasons for detention of the accused beyond said period of 180 days.”

Be it noted, the Bench then observes in para 19 that, “Section 36-D of the NDPS Act provides for a situation where Special Courts in terms of Section 36 of the NDPS Act have not been constituted. Since in the Union Territory of Jammu and Kashmir, Special Courts have not been constituted, as such, the aforesaid provision assumes significance. The same is, therefore, required to be noticed. It reads as under:

“36D. Transitional provisions.—(1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (2 of 1989), which is triable by a Special Court shall, until a Special Court is constituted under section 36, notwithstanding anything contained in the Code of Criminal Procedure, 1973, be tried by a Court of Session.

(2) Where any proceedings in relation to any offence committed under this Act on or after the commencement of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 1988 (are pending before a Court of Session, then, notwithstanding anything contained in sub-section (1), such proceeding shall be heard and disposed of by the Court of Session:

Provided that nothing contained in this sub-section shall affect the power of the High Court under section 407 of the Code of Criminal Procedure, 1973 to transfer any case or class of cases taken cognizance by a Court of Session under sub-section (1).””

As a corollary, the Bench then points out in para 20 that, “From a perusal of the aforesaid provision it becomes clear that every offence under NDPS Act, which is triable by a Special Court, shall, until a Special Court is constituted, be tried by a Court of Session. The question arises whether a Sessions Court would exercise jurisdiction of a Special Court including the jurisdiction to remand the accused to custody during the investigation of the case and take cognizance of offences or would it only hold trial of the offences under NDPS Act as a Court of Session.”

Of course, the Bench then stipulates in para 21 that, “There are divergent opinions of various High Courts on the above issues. Delhi High Court and Punjab & Haryana High Court have taken a view that till Special Court under Section 36 of the NDPS Act is constituted, a Judicial Magistrate/Metropolitan Magistrate can give remand of accused beyond a period of fifteen days under Section 167(2) of the Code as he is empowered to exercise this power under Section 36A of the Act, meaning thereby that a Sessions Court, in cases relating to offences under NDPS Act, cannot exercise powers of a Special Court so far as the same relates to taking of cognizance of offences or remanding accused to custody during investigation of the case. A Full Bench of the Delhi High Court has taken the aforesaid view in the case of Rakesh Kumar vs. The State, 1994 CriLJ 1942. A Full Bench of Punjab and Haryana High Court has taken a similar view in the case of Janta Singh v. State of Punjab, 1996 CriLJ 1185.”

Quite the contrary, the Bench then postulates in para 22 that, “A contrary view on this issue has been taken by Bombay High Court in the case of Suryakant Ramdas and others vs. State of Maharashtra, 1990 (1) MhLj 124, by holding that the Court of Sessions shall have all the powers, duties and obligations which the Special Court has been given and that Sessions Judge was empowered to authorize detention as also to take cognizance of the offences and then proceed to trial by following the procedure prescribed under NDPS Act. A similar view has been taken by the High Court of Madras in P. R. Muthu v. State, 1992 (1) Crimes 1038 and High Court of Kerala In Re: State Circle Inspector of Excise and Ors., 1992 CriLJ 570 and In Re: An Accused, 1992(1) Crimes 1030.”

While then spelling out the right position, the Bench then envisages in para 23 that, “The controversy seems to have been set at rest by the Supreme Court in the case of Supreme Court Legal Aid Committee Representing Under trial Prisoners v. Union of India and others, (1994) SCC 731, by holding that on account of non-obstinate clause in Section in 36D(1)(a) of the NDPS Act, there would be no question of the Magistrate going through the exercise of committal proceedings in respect of the offences triable by the Court of Session in terms of Section 36D of the Act. Para 11 of the judgment is relevant to the context and the same is reproduced as under:

“11. Section 36 provides for the Constitution of Special Courts and Section 36A(l)(a) says that notwithstanding anything contained in the Code, all offences under the Act shall be triable only by the Special Court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government. On a conjoint reading of these two provisions it becomes clear beyond my manner of doubt that once a Special Court (or more than one) has been constituted for an area or areas in which the offence has been committed, then notwithstanding anything contained in the Code, the Special Court alone will have jurisdiction and all other Courts exercising jurisdiction prior to the Constitution of the Special Courts will cease to have jurisdiction. Sub-section 36A(1)(a) and (d) which also begin with a non-obstante clause – notwithstanding anything contained in the Code – provide that a Special Court may, upon a perusal of the police report of the facts constituting an offence under the Act or upon a complaint made by an officer of the concerned Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial. This is a provision which is analogous to Section 190 of the Code. It is dear from this provision that a Special Court may take cognizance of an offence without the accused being committed to it for trial. Section 36C makes the provisions of the Code applicable to proceedings before a Special Court, save as otherwise provided in the Act, and says that the Special Court shall be deemed to be a Court of Session. That brings us to Section 36D which is a transitional provision. Under Sub-section (1) of Section 36D any offence committed under the Act on or after the commencement of the Amendment Act, 1988, until a Special Court is constituted under Section 36, shall, notwithstanding anything contained in the Code, be tried by a Court of Session. The nonobstante clause in this provision makes it clear that until a Special Court is constituted under Section 36, the Court of Session shall try any offence committed on or after the commencement of the Amending Act and no other Court including the Magistrate’s Court will have jurisdiction to try an offence under the Act. Subsection (2) of Section 36D further provides that nothing in Sub-section (1) shall be construed to require the transfer to a Special Court of any proceeding in relation to an offence taken cognizance of by the Court of Session under Sub-section (1) and the same shall be continued, heard and decided by the latter Court. As we have pointed out earlier before this group of sections came to be introduced in the Act by the Amending Act 2 of 1989 with effect from 29th May, 1989, the offences under the Act were triable by different Courts under the Code depending on the punishments provided therefore. But after the introduction of this group of sections in the Act, the legislature, with a view to speeding up the trial provided for the Constitution of a Special Court and until such Court was constituted it provided by Sub-section (1) of Section 36B that the Court of Session will have jurisdiction to try any offence committed under the Act; the provisions in the Code notwithstanding. The effect of this provision is to vest jurisdiction in the Court of Session alone during the transitional period in respect of offences under the Act even where the punishment prescribed is three years or less. Ordinarily the Magistrate’s Court would have power to try the offence under the Code but by this provision the power is vested in the Court of Session alone and, therefore, the Courts of the Magistrate, 1st Class, Metropolitan Magistrates, Chief Judicial Magistrates and Chief Metropolitan Magistrates would cease to have jurisdiction. Sub-section (1) of Section 36A overrides the provisions of the Code. So, from the date of its introduction on the statute book the Magisterial Courts ceased to have jurisdiction or power to try any offence committed under the Act even if the punishment prescribed is three years or less since any the Court of Session is empowered to deal with such cases. There would, therefore, be no question of the Magistrate going through the exercise of committal proceedings as on account of the nonobstante clause in Section 36D(l)(a), all offences under the Act become triable only by the Court of Session till the Constitution of Special Courts and thereafter by the Special Court. Ordinarily, therefore, cases pending before the Court of Session by virtue of Section 36D(1) would be transferred to the Special Court, but Sub-section (2) of Section 36D carves out an exception in relation to an offence of which the Court of Session has already taken cognizance. Where the Court of Session has already taken cognizance under Sub-section (1) of Section 36D that Court will be entitled to hear and dispose of the case and will not be required to transfer the same to the Special Court of the area by virtue of the exception carved out by Sub-section (2) of Section 36D. On a conjoint reading of Sections 36, 36A to 36D, it seems clear to us that after the insertion of these provisions all offences under the Act have to be tried by the Special Court for the area constituted under Section 36. That is the thrust of Clause (a) of Sub-section (1) of Section 36A. But the legislature was aware that there may be a time-gap between the coming into force of these provisions w.e.f. 29th May, 1989 and the Constitution of a Special Court. This period which is a transitional period is taken care of by Section 36D of the Act. Under this provision during the transitional period offences committed under the Act would be tried by the Court of Session alone notwithstanding anything to the contrary contained in the Code. But once the Special Court is constituted under Section 36 that Court alone would have jurisdiction to try the offences under the Act save and except those in relation whereto the Sessions Court has already taken cognizance. It is not necessary to elaborate on when cognizance is understood to have been taken because that is fairly well- settled by a catena of decisions of this Court, vide decisions based on an interpretation of Section 190 of the Code. Also see para 7 of Kishan Singh v. State of Bihar.” (Emphasis supplied).”

What’s pretty clear is then stated in para 24 that, “From the afore-quoted observations of the Supreme Court, it is clear that until Special Courts in terms of Section 36 of the NDPS Act are constituted, a Court of Session will have jurisdiction not only to try the offences committed under the Act but it will also have jurisdiction to take cognizance of such offences without the necessity of going through the committal proceedings.”

For more clarity, the Bench then postulates in para 25 that, “The position is further clarified by the provisions contained in Section 36-C of the NDPS Act, which provide for application of Code of Criminal Procedure to the proceedings before a Special Court. It reads as under:

“36C. Application of Code to proceedings before a Special Court.—Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), (including the provisions as to bail and bonds) shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the person conducting a prosecution before a Special Court, shall be deemed to be a Public Prosecutor.”

It is worth noting that the Bench then lays bare in para 26 that, “From a perusal of the aforesaid provision, it is revealed that only those provisions of the Code would apply to the proceedings pertaining to offences triable by Special Court which are not inconsistent with the provisions of the NDPS Act. It further provides that a Special Court shall be deemed to be a Court of Session. Thus, during the transitional period when a Court of Session fills in the void created by non-constitution of Special Courts, it has to follow the same procedure as prescribed by the provisions contained in NDPS Act read with those provisions of the Cr. P. C, which are not inconsistent with the NDPS Act. The provisions of NDPS Act give jurisdiction to the Court competent to try the offences under the said Act i.e. Special Court to take cognizance of offence as an original court [Section 36A(1)(d)] and to exercise powers of a Magistrate under Section 167 of Cr. P. C [Section 36A(1)(c)]. 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. This is clear from the non-obstinate clause appearing at the fag end of sub-section (1) of Section 36D of the Act. Therefore, the expression “be tried by a Court of Session” appearing in sub-section (1) of Section 36D of the Act has to be given a harmonious and wide construction so as to include within it the power to take cognizance of offences under the Act and to exercise all other ancillary powers of a Special Court.”

Furthermore, the Bench then states in para 27 that, “Once it is concluded that a Court of Session, during the transitional period until constitution of Special Courts, has jurisdiction to take cognizance of offences under the said Act, it can safely be stated that the said Court has also power to grant and extend the period of detention of an accused beyond fifteen days in accordance with the provisions contained in Section 36-A of the NDPS Act. Therefore, I would respectfully beg to differ with the view expressed by the Full Benches of Delhi High Court and Punjab & Haryana High Court and concur with the views expressed of the High Courts of Bombay, Madras and Kerala on this issue.”

No doubt, the Bench rightly observes in para 28 that, “Having held that with respect to the offences under UA(P) Act, the jurisdiction to grant and extend the period of remand vests with the Special Court constituted under NIA Act and jurisdiction to grant and extend remand beyond fifteen days in respect of the offences under NDPS Act vests with the Sessions Court having jurisdiction in the area concerned until a Special Court is constituted, let us now proceed to find an answer to the question of law that has arisen in the instant case.”

Simply put, the Bench then states in para 29 that, “There is no dispute to the fact the petitioner has been booked for various offences under UA(P) Act as well as NDPS Act. Both these legislations are special in nature and provide for constitution of Special Courts. The petitioner was initially booked only for the offences under NDPS Act and, accordingly, he was remanded to custody from time to time by the orders passed by the concerned Sessions Court. Once the offences under UA(P) Act were added, he was produced before the Special Court Designated under NIA Act, at Jammu and his remand in custody was extended by the said Court from time to time, which included the extension of his remand beyond 90 days up to 180 days.”

Quite significantly, the Bench then notes in para 30 that, “It is required to be noticed here that Special Court Designated [3 rd Additional District and Sessions Court (TADA/POTA)] under NIA Act at Jammu is basically a Sessions Court and by virtue of SRO 149 dated 1st of March, 2019, issued by erstwhile Government of Jammu and Kashmir in terms of Section 22 of NIA Act, it has been designated as a Special Court for trial of Scheduled offices investigated by the State police. So the said Court is not only competent to grant remand in respect of the offences under UA(P) Act but it is also vested with jurisdiction to remand accused to custody in respect of the offences under NDPS Act. Thus, no difficulty is posed so far as remand of petitioner to custody by the said Court up to the expiry of 180 days is concerned. Even otherwise, Section 14 of the NIA Act vests jurisdiction with a Special Court to try any other offence while trying offences under UA(P) Act.”

Quite forthrightly, the Bench then specifies in para 31 that, “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. It is clearly indicated in the said application that the Investigating Agency has sought extension of period of custody of the petitioner in connection with investigation of offences under NDPS Act. The Court of 3rd Additional Sessions Judge, Jammu (Special Court under NIA Act) being a Sessions Court, was also competent to adjudicate upon the aforesaid application of the investigating agency but it seems that the application was assigned by Principle Sessions Judge, Jammu, to Additional Sessions Judge, Jammu. As already held, a Sessions Court having jurisdiction in the area concerned has the power to grant and extend the period of custody in a case relating to offences under NDPS Act, as such, there was no legal bar or impediment for the Court of Additional Sessions Judge, Jammu, to entertain and decide the said application. It is so because 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. The ratio laid down by the Supreme Court in Bikramjit Singh’s case (supra) is, therefore, not applicable to the facts of the instant case.”

Due to the aforesaid, the Bench then holds in para 32 that, “For the foregoing reasons, the answer to the legal question formulated in para (1) of this judgment has to be in negative. Accordingly, it is held that in a case where an accused is facing investigation for offences under UA(P) Act together with offences under NDPS Act, concerned Sessions Judge, until a Special Court under Section 36 of NDPS Act is constituted, is vested with jurisdiction to extend the custody of such an accused beyond the period of 180 days subject to fulfillment of the conditions mentioned in proviso to sub-section (4) of Section 36A of NDPS Act.”

It cannot be glossed over that the Bench then stipulates in para 34 that, “So far as proviso to sub-section (4) of Section 36-A of the NDPS Act is concerned, it lays down that if it is not possible to complete the investigation within 180 days, the custody of an accused alleged to have committed offences under NDPS Act can be extended up to one year subject to the following conditions:

(1) there has to be a report of the Public Prosecutor indicating the progress of investigation;

(2) Specific reasons for detention of accused beyond the period of 180 days have to be spelled out.”

Significantly, the Bench then holds in para 36 that, “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. Thus, I do not find any infirmity or illegality in the impugned order passed by the learned Additional Sessions Judge, Jammu, and the same does not call for any interference by this Court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure or in exercise of its revisional jurisdiction.”

In view of the aforesaid, the Bench then holds in para 37 that, “For the foregoing discussion, I do not find any merit in this petition, the same is, accordingly, dismissed.”

It cannot be glossed over that the Bench then minces no words to say upfront in para 38 that, “Before parting, this Court expresses its anguish and dismay for the manner in which the successive governments of erstwhile State of Jammu and Kashmir and Union Territory of Jammu and Kashmir have dragged their feet on constitution and setting up of Special Courts in terms of Section 36 of NDPS Act in this part of the Country. This state of affairs is continuing despite the lapse of more than three decades from the date of enactment of NDPS Act. There is high pendency of cases relating to offences under NDPS Act in the Union Territory and in the absence of Special Courts, these cases are being tried by ordinary Sessions Courts thereby resulting in delay in disposal of these cases. Thus, the very object of the Act is getting defeated.”

Adding more to it, the Bench then hastens to add in para 39 that, “Taking note of the above situation, the Supreme Court has, in the case of Thana Singh vs. Central Bureau of Narcotics, (2013) 2 SCC 590, issued directions to a few States including the State of Jammu and Kashmir to set up Special Courts. Para 15 of the judgment is relevant to the context and the same is reproduced as under:

“15.Therefore, we issue the following directions in this regard:

15.1. Each state, in consultation with the High Court, particularly the states of Uttar Pradesh, West Bengal and Jammu & Kashmir (where the pendency of cases over five years is stated to be high), is directed to establish Special Courts which would deal exclusively with offences under the NDPS Act.

15.2. The number of these courts must be proportionate to, and sufficient for, handling the volume of pending cases in the State.

15.3. Till exclusive courts for the purpose of disposing of NDPS cases under the NDPS Act are established, these cases will be prioritized over all other matters; after the setting up of the special courts for NDPS cases, only after the clearance of matters under the NDPS Act will an NDPS court be permitted to take up any other matter.” (Emphasis supplied)

Even the aforesaid directions of the Supreme Court seem to have fallen on deaf ears of the authorities and the same have been unable to wake up the authorities from the deep slumber.”

What’s more, the Bench then bluntly states in para 40 that, “It is high time that the concerned authorities of the Government of Union Territory of J&K, take immediate steps to set up Special Courts in the Union Territory in consultation with the High Court so that object of speedy disposal of cases relating to offences under NDPS Act is fulfilled and the directions of the Supreme Court are complied with in the right earnest.”

Finally, the Bench then holds in para 41 that, “Copies of this judgment be placed before the Chief Secretary of the Government of Union Territory of J&K, and the Registrar General of the High Court of J&K, for taking immediate necessary steps in the matter.”

No doubt, the Single Judge Bench of Jammu and Kashmir High Court comprising of Justice Sanjay Dhar has stated the precise legal position and made it crystal clear 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. Justice Sanjay has cited the right reasons as also the relevant case laws and the relevant provisions to back its judgment! Very rightly so!

Sanjeev Sirohi, Advocate,

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Legally Speaking

GAUHATI HIGH COURT QUASHES NO-CONFIDENCE MOTION AGAINST GRAM PANCHAYAT PRESIDENT CITING PARTICIPATION OF MEMBER DISQUALIFIED FOR HAVING THREE CHILDREN

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The Gauhati High Court in the case Jugitawali Pawe v State of Assam and 15 ors observed and quashed a resolution expressing no-confidence in the petitioner – the President of a Gram Panchayat, as a result of which she as removed from office. It was stated that it is as per the citing no compliance with Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995.

It was preferred by the petitioner to the materials available on record to argue that one of the members of the Gaon Panchayat, the respondent. The respondent voted against the petitioner and had given birth to her third child the previous year. Moreover, by virtue of Section 111(2)(a) of the Assam Panchayat Act, 1994, reading with Rule 62 of the Assam Panchayat (Constitution) Rules, 1995, the petitioner stood automatically disqualified on the date of voting. Following, which her vote was taken by passing No-confidence motion.

It was prayed by the petitioner in the plea for setting aside the impugned resolution and for issuance of a direction to restore his client back in the office. Thereafter, to initiate fresh proceedings, liberty should be granted to the respondent, following the due process.

It was agreed by the Counsel representing for the respondent that the said member of the panchayat had been disqualified but retained on the ground that the disqualification would have no bearing on the petitioner’s case, as the impugned resolution was passed before the declaration of petitioner disqualification.

In the present case, It was noticed by Justice Suman Shyam the member had voted against the petitioner and without her vote. The petitioner would not have been ousted from office. Justice Shyam also found no dispute about the fact that the member had incurred disqualification under the law prior the date of adoption of the impugned resolution. Justice Shyam found it unnecessary to delve into other aspects of the matter which includes the procedural formalities for declaring the member a disqualified candidate.

It is observed that the impugned resolution was declared to be vitiated and liable to be set aside. Further, the Court restored the petitioner to the office of the President of the Bongalmara Gaon Panchayat with immediate effect and it was stated by the court that the order will not stand in the way should the authorities or any member of the Gaon Panchayat propose a fresh motion of “no-confidence” against the petitioner and the due process of law needs to be followed.

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Halt DDA’s demolition action against jhuggis in Nizamuddin’s Gyaspur area, orders Delhi High Court

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board, the residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

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The Delhi High Court in the case Manoj Gupta & Ors. v. DDA & Ors observed and has ordered status quo on the Delhi Development Authority’s proposal to demolish jhuggi clusters in city’s Gyaspur area in Hazrat Nizamuddin. The vacation bench comprising of Justice Neena Bansal Krishna observed in the petition filled by the residents and the court granted an interim relief.

It was ordered by the court status quo till July 11, the next date of hearing.

The bench orally remarked that a ten-day delay in demolition won’t make a difference but if today it is demolished and later, we come to know that they were entitled, who’s going to… the bench will consider it on July 11, 2022 but in the Meanwhile, some protections are entitled them. Adding this, Status quo be maintained. If since 1995, they have been there, heavens won’t come down if for 10 more days they are protected.

In the plea the petitioner stated that the T-Huts settlement in the area, which was stated by the authorities to vacate. It has been in existence for almost two decades and compromise of 32 jhuggis or households.

In the plea it was alleged that the bulldozers have been parked around the camp and a DDA official has orally asked them to vacate the area and it is noted that till date no proper notice have been sent to them nor has DDA conducted any survey of the area.

Furthermore, the DDA did not provide any alternate arrangement for their rehabilitation which resulted in extreme distress among the residents.

Moreover, it was admitted by the petitioner that the land in question belongs to DDA and they may seek that status-quo to be maintained at the site. It was urged that the residents should not be physically dispose or evicted from the demolition site until the survey is conducted and rehabilitation is provided to the residents as per the DUSIB policy of 2015.

As per the JJ Rehabilitation and Relocation Policy 2015 and the Delhi Urban Shelter Improvement Board. The residents who can establish their residence prior to 01.01.2015 are eligible for rehabilitation under the JJ Rehabilitation and Relocation Policy 2015.

It is observed that in the case Ajay Maken v. Union of India, Reliance is placed on the Supreme Court decision and the High Court decision in the case Sudama Singh & Ors. v. Government of Delhi & Anr, it was held in the case that that removal of jhuggis without ensuring relocation would amount of gross violation of Fundamental Rights under Article 21 of the Constitution. Further, it was held that the agencies conducting the demolitions ought to conduct survey before undertaking any demolition.

It is submitted that these observations would apply across the board, in the entire NCT of Delhi.

Advocates Vrinda Bhandari, Shiyaz Razaq, Kaoliangpou Kamei, Jepi Y Chisho and Paul Kumar Kalai, represented the petitioner.

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TELANGANA HIGH COURT: PLACE OF RESIDENCE OF THE ARBITRATOR WOULD NOT BE THE SEAT OF ARBITRATION

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The High Court of Telangana in the case M/s S. Square Infra v. Garneni Chalapathi Rao observed and held that the place of residence of the arbitrator would not determine the seat of arbitration.

The Single bench comprising of Justice P. Sree Sudha observed and held that merely because an arbitrator residing in Hyderabad has been appointed, it does not mean that only the Courts at Hyderabad would have the jurisdiction to decide all the matters arising out of arbitration agreement.

Facts of the Case:

In the present case, after the dispute arouse between the parties, the respondent sent a letter to the petitioner for nomination an arbitrator who is residing in Hyderabad. To its said notice, petitioner replied and declined the appointment of the arbitrator for the reason that there was no dispute which required the appointment of an arbitrator.

A suit was filled by the respondent before the VII Additional District Judge Sangareddy, seeking for relief of permanent injunction. An application was filled by the petitioner under Section 8 of the Arbitration & Conciliation Act and the parties referred to the arbitration.

An application was filled by the respondent under section 9 of the Arbitration & Conciliation Act before the Principal District Judge, Sangareddy, Subsequently, an application was filled by the petitioner for transferring the application from the Court at Sangareddy to Court at Hyderabad.

Contentions made by Parties:

On the following grounds, the petitioner sought the transfer of application.

An arbitrator residing in Hyderabad was nominated to respondent. However, only the courts in Hyderabad would have the jurisdiction to decide all the matters arising out of the arbitration.

It was stated that the nomination of an arbitrator residing in Hyderabad amounted to designating Hyderabad as the Seat of Arbitration.

On the following grounds, the respondent countered the submissions of the petitioner:

An application was filled by the petitioner under Section 8 of the A&C Act before the Court at Sangareddy. However, in terms of Section 42 of the A&C Act, only the court at Sangareddy would have the jurisdiction to decide all the matters arising out of arbitration.

Court Analysis:

The Court held that the seat of arbitration would not be decide by the place of residence of the arbitrator.

The argument of the petitioner was rejected by the court that since the respondent had initially nominated an arbitrator residing in Hyderabad, the Hyderabad Court would have the jurisdiction.

The court stated that merely because a party has nominated an arbitrator who resides in Hyderabad, the same would not designate Hyderabad as the Seat of arbitration in absence of any designation of the seat under the arbitration agreement.

It was further stated by the court that the application filled by the petitioner filled under Section 8 application before the Court at Sangareddy consequent to which the parties were referred to arbitration. Therefore, the Court would have the jurisdiction, in terms of Section 42 of the A&C Act.

The Transfer petition was dismissed by the Court.

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DELHI HIGH COURT REMANDS IN THE MATTER BACK TO ASSESSING OFFICER AFTER SETTING ASIDE: JUST 3 DAYS’ TIME GRANTED TO RESPOND TO THE INCOME TAX NOTICE

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The Delhi High Court in the case Shubham Thakral Vs ITO, the Delhi bench comprising of Justice Manmohan and Justice Manmeet Pritam Singh Arora observed and remanded the matter back to the assessing officer as just 3 days’ time was granted to respond to the income tax notice.

In the present case, the petitioner/assessee assailed the notice under Section 148A (b) of the Income Tax Act, 1961 and the order passed under Section 148A (d) for the Assessment Year 2018–19.

It was contended by the assessee that only three days’ time was granted to the assessee to respond, as against the mandatory statutory period of at least seven days. However, despite of the fact that the annexure attached to the notice gave the petitioner eight days to respond, the e-filing submission portal was closed earlier, in violation of Section 148A (b) of the Income Tax Act.

Furthermore, the petitioner relied on the decision of Delhi High Court, in the case of Shri Sai Co-operative Thrift and Credit Society Ltd versus ITO, the Delhi High Court in the case held that under Section 148A (b), a minimum time of seven days has to be granted to the assessee to file its reply to the show cause notice.

No objections were raised by the department/respondent to the matter being returned to the Assessing Officer for a fresh decision in accordance with the law. Accordingly, the court set aside the order passed under Section 148A (d) for the Assessment Year 2018-19. The Assessing officer was directed by the court to pass a fresh reasoned order in accordance with the law after considering the reply of the petitioner, which was directed to be filed within a week.

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ALLAHABAD HIGH COURT: ADVOCATES SHOULDN’T ADVISE CLIENTS TO REAGITATE MATTERS IF THERE IS NO ERROR APPARENT ON FACE OF RECORD

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The Allahabad High Court in the case Malhan and 17 Others Vs. State Of U.P. And Another observed and stated that an advocate should be given such a piece of advice when there is no error apparent on the face of the record nor was there any reason why the matter be re-agitated it was finally decided.

The bench comprising of Justice Dr. Kaushal Jayendra Thaker and Justice Vivek Varma observed while dealing with the civil review application wherein the bench observed the concerned advised his client to make a chance by filling the instant review application after a period of six year.

In the present case, a civil review petition was filled along with the application under section 5 of the Limitation Act, 1963., the application was filled for seeking condonation of delay in filling the application, the application was filled with a delay of six years i.e., 1900 days.

It was stated by the applicant that the review application could not be filled due to the blockage of public transportation on account of the COVID-19 guidelines.

Moreover, the court observed that the appeals were disposed of by the Apex Court in the year 2016 and only in 2020-2021, the pandemic struck India and furthermore, it cannot be said that due to the COVID guidelines the public transportation was blocked and however, the applicant could not come to Allahabad Court to file review.

Further, it was stated that the court asked the counsel for the review applicants to explain the delay in filling the review application, to which the council gave a strange reply that the counsel had advised the clients that they must take a chance by filling this review application after a period of six years.

Following this, the Court observed:

The court noted that an advocate should not give such an advice when there is no error apparent on the face of record nor was there any other reason that when the matter was finally decided, why the matter be re-agitated.

It was stated that the court has no reason to condone the delay of six years as the same was not explained as to why this review application is filed after such an inordinate delay.

The Court opined that the lapse in approaching the court within the time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, this would add to his negligence and the relevant factor going against him.

The court observed that careless and reckless is shown by the review applicant in approaching the court and due to the condemnation of delay in the application with a token cost of Rs.10,000/, the court dismissed the application.

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SUPREME COURT CRITICISES HIGH COURT: POSTING ANTICIPATORY BAIL PLEA AFTER TWO MONTHS CAN’T BE APPRECIATED

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The Supreme Court in the case Sanjay versus The State (NCT of Delhi) & ANR observed and stated that in the case where personal liberty is involved, the court is expected to pass orders at the earliest while taking into account the merits of the matter in one way or other. Further, the top court observed that posting of an application for anticipatory bail after a couple of months cannot be appreciated by the court.

The bench comprising of Justice C. T. Ravikumar and the Justice Sudhanshu Dhulia was hearing a June 2 SLP against the Delhi High Court in a petition filed under section 420, 467, 468, 471, 120-B, 34 of the Indian Penal Code, 1860 for seeking anticipatory bail in a 2022 FIR, a notice is issued. It was stated that the learned APP for the state is present and accepts the notice and seeks time to file status report. The High Court in the impugned order stated that Let the status report be filed by the state prior to the next date with an advance copy to the learned counsel for the petitioner. The matter is to be list on 31.08.2022.

It was noted by the bench comprising of Justice Ravikumar and the Justice Dhulia that in the captioned Special Leave Petition, the grievance of the petitioner is that the application for anticipatory bail moved by the petitioner, being Crl. M.A. No. 11480 of 2022 in Bail Application No. 1751 of 2022 without granting any interim protection, was posted to 31.08.2022. on 24.05.2022, the bail application was moved on.

However, the bench asserted that the bench is of the considered view that in a matter involving personal liberty, the Court is expected to to pass orders at the earliest while taking into account the merits of the matter in one way or other.

It was declared by the bench that at any rate posting an application for anticipatory bail after a couple of months cannot be appreciated by the court.

Further, the bench requested to the High Court to dispose off the application for anticipatory bail on its own merits and in accordance with law expeditiously, preferably within a period of three weeks after reopening of the Court. Adding to it, the bench stated that if the main application could not be disposed off, for any reason, within the stipulated time, relief sought for in the interlocutory and on and on its own merits, the application shall be considered.

While disposing of the SLP, the bench directed in its order that we grant interim protection from arrest to the petitioner herein, Till such time.

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