State Of Mah. Thr. Sub Divisional ... vs Pawankumar Fakirchand Uikey
2023 Latest Caselaw 635 Bom

                                                 1               18apeal22.23.odt

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH, NAGPUR

                           CRIMINAL APPEAL NO. 22/2023


        State of Maharashtra,
        through Sub Divisional Police Officer,
        Jimalgatta, Tq. Aheri, Dist. Gadchiroli,
                                                                            APPELLANT

                                         VERSUS

        Pawankumar Fakrichand Uikey,
        Aged about 33 years,
        R/o. Kamlapur, Tq. Aheri,
        Dist. Gadchiroli,

                                                                       RESPONDENT

---------------------------------------------------------------------------------------------------
Mr. Amit Chutke, Additional Public Prosecutor for applicant/State.
Mr. R. M. Daga, Advocate for respondent-sole.


            CORAM                                           : VINAY JOSHI AND
                                                              VALMIKI SA MENEZES JJ.
           DATE OF JUDGMENT                                :    18.01.2023


JUDGMENT (PER VINAY JOSHI, J.)

Heard.

2. This is State appeal through Sub Divisional Police Officer,

Jimalgatta, Tq. Aheri, Dist. Gadchiroli in terms of Section 21(1) of the

National Investigation Agency Act, 2008 ('NIA Act') raising a challenge

to the order of learned Additional Sessions Judge, Gachiroli dated 2 18apeal22.23.odt

22.09.2022, whereby Police Custody remand has been rejected.

3. Few uncontroverted facts need initial reference. Crime

No. 02/2022 was registered on 28.07.2022 against respondent for the

offence punishable under Sections 120-B read with Section 34 of the

Indian Penal Code, Sections 10, 13, 20 the Unlawful Activities

(Prevention) Act, 1967 ('UAP Act') and Section 135 of the Maharashtra

Police Act. The respondent (accused) was arrested on the same day i.e.

on 28.07.2022 and was produced before the learned Judicial Magistrate

First Class, Aheri on 29.07.2022. In turn, the learned Magistrate has

remanded the accused to the Police Custody till 08.08.2022 (for 7 days)

and on 08.08.2022, again the learned Magistrate has extended Police

Custody remand till 13.08.2022 (total 15 days). On his production

before the learned Magistrate on 13.08.2022, the accused has been

remanded to the Judicial Custody which is prevailing till date.

Undisputedly, the initial period of 30 days from the first remand, was

over on 29.08.2022. There is no dispute that after lapse of initial 90

days from the date of first remand, the period of investigation was

extended upto 180 days, which would come to an end on 23.01.2022.

4. On 12.09.2022, the Police have applied to the Magistrate

for grant of Police Custody from Judicial Custody for 8 days, which was

rejected by the learned Magistrate on the same day. The learned

Magistrate has rejected conversion of Judicial Custody into the Police 3 18apeal22.23.odt

Custody inter alia by placing reliance on the decision of the Supreme

Court in case of Central Bureau of Investigation, Special Investigation

Cell-I, New Delhi Vs. Anupam J. Kulkarni, (1992) 3 SCC 141. It was

followed by the Police approaching to the learned Additional Sessions

Judge, Gachiroli seeking Police Custody for 7 days vide remand

application dated 17.09.2022. The learned Additional Sessions Judge

considered the provisions of Section 43-D of the UAP Act, with its

second proviso, but ultimately refused to grant Police Custody vide order

dated 22.09.2022 by holding that such conversion can be effected only

during first 30 days from the first remand, which is impugned herein.

5. The learned Additional Public Prosecutor ('APP') would

submit that Special Court was not designated under Section 11 of the

UAP Act for Gadchiroli District, therefore as per prevailing practice, the

Police have applied for conversion of Judicial Custody into Police

Custody to the Court of the Judicial Magistrate First Class, Aheri. It was

later found that since there was no notified Special Court for Gadchiroli

District, they have applied to the Court of Sessions in terms of Section

22(3) of the NIA Act. It is primly canvassed that the Special Court fell in

serious error in holding that the Police Custody can be granted only

during first 30 days from the date of remand. It is submitted that the in

terms of Section 43-D(2)(a) of the UAP Act, the provisions of Section

167 of the Code of Criminal Procedure ('Code') have been modified by 4 18apeal22.23.odt

altering the reference of "15 days" as "30 days". He would submit that

the second proviso to Section 43-D of the UAP Act authorizes grant of

Police Custody from Judicial Custody after initial 30 days on filing of

affidavit stating the reasons, and on explanation of delay for requiring

Police Custody.

6. The entire controversy hings around the interpretation of

second proviso to Section 43-D of the UAP Act. For the purpose of ready

reference, the said provision is reproduced herein below:-

"Section 43. ......

Section 43-B......

.......

Section- 43-D 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.".

                                       5         18apeal22.23.odt

             3....
             ......"

7. According to the learned APP, second proviso added to

Section 43-D of the UAP Act carves out an exception to the general rule

that grant of Police Custody must be within initial 15 days (herein 30

days). In order to substantiate said contention heavy reliance is placed

on the decision of the Supreme Court in case of Maulavi Hussein Haji

Abraham Umraji Vs. State of Gajarat and another, AIR 2004 SC 3946 . It

is argued that the proviso added to Section 49(2) of the POTA Act, is

pari materia to the second proviso of Section 43-D of the UAP Act and

therefore, conversion of Police Custody after 30 days is held permissible.

It is seen that the said decision relates to the provisions under

Prevention of Terrorism Act ('POTA'). As against this, respondent relied

on the another decision of the Supreme Court which is later in point of

time and specifically relates to UAP Act. Further reliance is placed on

the decision of this Court in case of Iqbal Hasan Shaikh Ibrahim Kaskar

Vs. State of Maharashtra, 2003 ALL MR (Cri) 1817 , wherein while

dealing with the provisions of the Maharashtra Control of Organized

Crimes Act, this Court has expressed that Police Custody can be sought

even after the initial period of 30 days.

8. Per contra, the learned counsel appearing for accused has

vehemently argued that though second proviso to Section 43-D of the

UAP Act permits conversion of Judicial Custody into Police Custody, 6 18apeal22.23.odt

however it does not mean that after initial 30 days, there can be

transposition in Police Custody. In this regard, heavy reliance is placed

on the decision of the Supreme Court in case of Gautam Navlakah Vs.

National Investigation Agency, 2021(7) SCALE 379

(MANU/SC/0350/2021).

9. The learned counsel appearing for the accused also

challenged the maintainability of appeal by contending that the Police

ought to have challenged the first rejection of transposition of custody

by Magistrate which they did not. To respond, the learned APP would

submit that since the Court of the Magistrate was not designated Court,

therefore, the said order being non est, they have not challenged but

approached to the Court of Sessions which is a Special Court under

Section 23(3) of the NIA Act. Be that as it may, we are basically called

upon to answer the short controversy whether there can be grant of

Police Custody after initial 30 days in the facts of this case under UAP

Act.

10. Undoubtedly, under UAP Act, the maximum period of Police

Custody is 30 days in terms of Section 43-D(2)(a) of the UAP Act. In

other words, as per Section 167 of the Code as modified by Section 43-

D(2)(a) of the UAP Act, the remand to the Police Custody on production

of the accused can be for 30 days. The controversy revolves around the

question whether the second proviso to Section 43-D(2) of the UAP Act, 7 18apeal22.23.odt

would authorize the Special Court to grant the Police Custody beyond

initial 30 days.

11. The entire thrust of the learned counsel appearing for

the accused is on the decision of the Supreme Court in case of Gautam

Navlakah (supra) with special emphasis on para 128 of the decision

which reads as below:-

"128. We would think that the position under Section 167 as applicable in cases under UAPA is as follows:-

Undoubtedly, the period of 30 days is permissible by way of police custody. This Court will proceed on the basis that the legislature is aware of the existing law when it brings the changes in the law. In other words, this Court had laid down in Anupam Kulkarni (supra), inter alia, that under Section 167 which provides for 15 days as the maximum period of police custody, the custody of an accused with the police can be given only during the first 15 days from the date of the remand by the Magistrate. Beyond 15 days, the remand can only be given to judicial custody. Ordinarily, since the period of 15 days has been increased to 30 days, the effect would be that in cases falling under UAPA applying the principle declared in (1992) 3 SCC 141, the investigating officer in a case under UAPA, can get police custody for a maximum period of 30 days but it must be within the first 30 days of the remand. In this regard, the number of days alone is increased for granting remand to police custody. The principle that it should be the first 30 days has not been altered in cases under UAPA.

As far as the second proviso in Section 43(D)(2)(b) is concerned, it does bring about an alteration of the law in Anupam Kulkarni (supra). It is contemplated that a person who is remanded to judicial custody and NIA has not been given police custody during the first 30 days, on reasons being given and also on explaining the delay, Court may grant police custody. The proviso brings about the change in the law to the extent that if a person is in judicial custody on the basis of the remand, then on reasons given, explaining the delay, it is open to the Court to give police custody even beyond 30 days from the date of the first remand. We may notice that Section 49 (2) of Prevention of Terrorism Act is pari materia which has been interpreted by this Court in AIR 2004 SC 3946 and the decision does not advance the case of Appellant though that was a case where the police custody was sought of a person in judicial custody but beyond 30 days.

8 18apeal22.23.odt

In this regard, it would appear that the appellant had surrendered on 14.04.2020. He was not in judicial custody. He was produced with a remand report seeking police custody on 15.04.2020. Treating this as a remand sought within the first 30 days, a remand is ordered for a period of 7 days initially. There is no dispute that the period was police custody. We may notice that an accused under UAPA may be sent to judicial custody, police custody or granted bail. If the argument that the police custody can be sought at any time and it is not limited to cases where there is judicial custody, it will go against the clear terms of the proviso and even a person who is bailed out can after 30 days be remanded to police custody. This is untenable. The case of the appellant that the police custody granted on 15.04.2020 was permissible and consistent with his case does not appear to be correct."

12. The learned APP also lays hand on the said para by stating

that the said decision supports his contention about permissibility of

conversion of Police custody after initial 30 days in terms of Section 43-

D of the UAP Act.

13. In the said case, the Supreme Court has expressed in

unequivocal terms that while bringing about the change in the law the

legislature is aware of the existing law laid down in case of Anupam J.

Kulkarni (supra) which has ruled that the Police Custody can be given

only during the first 15 days from the date of remand. In other words,

when the amended provision of Section 43-D was introduced by Act of

35 of 2008 (UAP Act), the law laid down in case of Anupam J. Kulkarni

(supra) was in-existence. In that context, it has been observed that in

cases falling under UAP Act by applying the principle declared in

Anupam J. Kulkarni (supra) case, the Police Custody for maximum

period of 30 days but it must be within the first 30 days of the remand.

9 18apeal22.23.odt

It has been expressed that the change is only in increase in number of

days alone for granting Police Custody remand.

14. The Supreme Court while considering the effect of second

proviso observed that, it does bring an alteration of the law in Anupam

J. Kulkarni case (supra). It is explained that as per proviso, if a person is

remanded to Judicial Custody and the National Investigation Agency has

not been given Police Custody during the first 30 days, then on reasons

being given, Court may grant Police Custody.

15. Case at hand bears a distinct feature. Admittedly, 15 days

Police Custody remand was grated to accused and thereafter, accused

was in Judicial Custody. It is not a case that no Police Custody at all was

given during the first 30 days to invoke the proviso. In above case, it

has been expressed that the alternation of law laid in Anupam J.

Kulkarni (supra) would apply when the accused was remanded to

Judicial Custody and National Investigation Agency has not been given

Police Custody during first 30 days. We may reiterate that since in case

at hand during first 30 days Police Custody was granted therefore,

proviso would not help the appellant to seek Police Custody after first 30

days.

16. Though the learned APP relied on the decision of Maulavi

Hussein Haji Abraham Umraji (supra), however the said case was

considered in later decision in case of Gautam Navlakah (supra), 10 18apeal22.23.odt

therefore the law declared in said case specifically under the UAP Act

has to be followed. In substance on considering the proviso as

interpreted by the Supreme Court, it would not apply to the facts

enabling the National Investigation Agency to seek Police Custody after

initial 30 days. Having been held so, we find no error committed by the

Court of Sessions while rejecting the application for conversion of Police

Custody after initial 30 days.

17. In view of above, appeal carries no merits, hence dismissed.

                         (VALMIKI SA MENEZES, J.)                  (VINAY JOSHI, J.)

                      Gohane
         Digitally
         signed by
         JITENDRA
JITENDRA BHARAT
BHARAT GOHANE
GOHANE Date:
         2023.01.20
         19:56:39
         +0530