Delhi High Court
Mufti Abdus Sami Qasmi vs National Investigation Agency on 8 May, 2017
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. A. 81/2017
% Date of Judgment: 08th May, 2017
MUFTI ABDUS SAMI QASMI ..... Appellant
Through : Mr. Jawahar Raja, Advocate with
Mr.Rajat Kumar, Advocate.
versus
NATIONAL INVESTIGATION AGENCY ..... Respondent
Through : Mr. Amit Sharma, Special Public
Prosecutor for NIA with Mr.Neel Kamal,
Public Prosecutor for NIA, Mr. Som
Prakash, Advocate and Mr. Sunil Kumar,
Inspector, NIA.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J. (ORAL)
1. The present appeal is directed against the order dated 14.12.2016 by
which an application filed by the appellant herein, seeking a direction to
supply the copy/inspection of documents submitted by the prosecution in
sealed covers, was dismissed. The appellant had sought copies of the
report filed by the Public Prosecutor under Section 43D (2) (b) of the
Unlawful Activities (Prevention) Act, 1967. The prayer made by the
appellant was rejected by the District & Sessions Judge, Special Court
(NIA) by the impugned order.
2. Counsel for the appellant submits that the aforesaid document is a vital
document to enable him to prepare his defence and even otherwise there is
no law which can deny the appellant copies of the aforesaid report filed
by the Public Prosecutor.
3. Mr. Sharma, learned Special Public Prosecutor, submits that the present
appeal is not maintainable under Section 21 of the National Investigation
Agency Act, 2008 (in short 'NIA Act') as no appeal lies against an
interim/interlocutory order. Additionally, it is contended that in this case
having regard to the nature of the matter and the investigation required,
the charge-sheet could not be filed within the statutory period of 90 days,
which could be extended for a period of 180 days. Learned counsel while
relying upon Section 43D of the Act submits that the requirement as per
this section was that the Public Prosecutor is to place a report before the
court detailing reasons for the delay in seeking extension from 90 days to
180 days in filing the charge-sheet. Mr. Sharma, submits that after the
application was filed the Special Judge by an order dated 29.04.2016
granted the extension to which there was no opposition. Neither a copy of
the report was sought nor the report is a part of the relied upon
documents.
4. Learned counsel also submits that the copy of this report was not objected
to and at this stage, the appeal has become infructuous as the charge sheet
has already been filed and the charge sheet would contain the relied upon
material which shall be relied upon by the prosecutor and no material in
addition thereto would be relied upon and thus no prejudice would be
caused to the appellant in case the copy of the report is not supplied to
him. Another reason, which is urged by the learned counsel is that the
aforesaid report contains the details of the investigation sought to be
carried out not only against this appellant and also against four other
persons and the investigations are still under progress with regard to the
other persons. He submits that having regard to the sensitivity of the
matter, the copy of the report was declined.
5. We have heard the learned counsel for the parties.
6. We may note that as per the counter affidavit in compliance of order No.
11034/111/2015-IS-IV dated 09.12.2015 issued under Section 6(5) of
NIA Act by the Ministry of Home Affairs, Government of India, the
respondent had registered a case [FIR No.RC-14/2015/NIA/DLI] under
Section 125 of the Indian Penal Code, 1860 and Sections 18, 18B, 38 and
39 of Unlawful Activities (Prevention) Act, 1967 against unknown and
unidentified persons involved in the activities of Islamic State (IS) in
India and Asian Powers in peace with India, aimed at establishing a
Caliphate by indulging in terrorist activities across different countries in
the world including India. The respondent after conducting investigation
filed a chargesheet against one accused person on 03.06.2016 and
subsequently, a supplementary chargesheet against sixteen accused
persons on 19.06.2016; in the instant case, on which the Special Court has
already taken cognizance. The instant case is related to the larger
conspiracy by an active terrorist organization known as 'ISIS' and further
investigation is continuing under the provision of Section 173(8) of Code
of Criminal Procedure, 1973.
7. It is further stated that during the course of investigation, credible
intelligence inputs were received that a module for ISIS is active in
different parts of the country and is engaged in recruiting Muslim youth
for ISIS, a proscribed terrorist organization. The said input was
developed and search and raids were conducted in different cities at
different locations. Eighteen accused persons were arrested in the instant
case and incriminating literature, material to fabricate IEDs, electronic
devices and money received through hawala channels were seized from
the possession of the accused.
8. It is further stated in the counter affidavit that the present appellant in the
guise of a religious preacher was inciting, motivating and abetting Muslim
youths, who sought his guidance in waging violent jihad and supporting
and joining the Islamic State of Syria and Iraq. After assessing the role of
the present appellant and involvement in the instant case present appellant
was arrested on 05.02.2016. One Dell laptop and 03 mobile phones were
seized from the accused at the time of his arrest. During the course of
investigation, the voice sample of present appellant was obtained and sent
to the DFS Gandhinagar, Gujarat for comparison with speeches made by
him for expert opinion, which has been obtained and is a part of the
chargesheet.
9. Since the chargesheet has already been filed in this case and having regard
to the fact that at appropriate time the appellant had not sought the copy of
the report, which was relied upon before the court; the appeal was filed
subsequently and even in the appeal, as informed by Mr.Sharma, no
ground was taken that the copy of the report was not supplied, we find no
ground to entertain this appeal. The same is dismissed. However, the
question of law raised by the appellant is kept open.
G. S. SISTANI, J.
VINOD GOEL, J.
MAY 08, 2017
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