Jammu & Kashmir High Court - Srinagar Bench
Shahnawaz Ahmad Magray vs Union Territory Of J & K on 10 May, 2022
S. No. 7
Regular List
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 1627/2021
Shahnawaz Ahmad Magray ...Petitioner(s)
Through: Mr Shabir Ahmad, Adv. & Mr Lone Altaf, Adv.
Vs.
Union Territory of J & K. ...Respondent(s)
Through: Ms Asifa Padroo, AAG.
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER
10.05.2022
The petitioner who was one of the accused in FIR No. 20/2018
under section 409, 120-B RPC 7/25 A. Act, 18, 20, 38 ULA (P) Act, is
aggrieved and has inter alia challenged the order of Special Judge
designated under NIA Act Srinagar ["the Trial Court"] dated 4th August,
2021, whereby the Trial Court has rejected the application of the
petitioner for release of vehicle bearing registration No. JK03D/6018 [the
subject vehicle].
Briefly put, the facts leading to the passing of the impugned order
are that on 24th April, 2019, one Constable Tariq Ah was posted at Police
Post Pakherpora absconded with one AK-47 rifle along with some
ammunition which was allotted to him for sentry duty. FIR No. 20/2018
under section 7/25 Indian Arms Act and 409 RPC was registered against
him in the police station concerned and the investigation set in motion.
During investigation, it also emerged that the petitioner along with
one Mr Basharat Ahmad Shah S/O Mohd Akbar Shah who was driving
the subject vehicle had provided aid and assistance to accused Tariq
Ahmad, in the matter of absconding from duty along with AK-47 weapon
and ammunitions to indulge in terrorist activities. On the basis of
investigation, not only the petitioner was arraigned as accused in the
crime, but the vehicle he was allegedly driving and which was following
the vehicle of constable Tariq Ahmad Shah, was also seized. The seizure
was confirmed by the Designated Authority i.e. Divisional Commissioner
Kashmir.
It may be noted that, neither the order of seizure nor the
confirmation of seizure, by the Designated Authority, was called in
question by the petitioner at any time before the conclusion of the trial as
against the petitioner. It appears that the Police after investigating the
matter presented challan against the petitioner and one Farooq Ahmad
Rather, before the Trial Court and proceeding under section 512 CrPC
against the constable accused Tariq Ahmad Bhat & Basharat Ahmad
Shah.
The Trial Court considered the matter at the time of framing of
charges and vide its order dated 3rd September 2020, discharged the
petitioner and Mr Farooq Ahmad Rather of all the charges against them.
This way, the case against the petitioner came to be concluded. On the
conclusion of the trial, the petitioner should have ordinarily moved the
Trial Court, by way of application under section 452 CrPC for release of
vehicle as the trial as against him had been concluded. However, as it
appears from the order dated 21st December, 2020 passed by the Trial
Court, the petitioner filed an appeal for release of vehicle. The Trial
Court, treating it as an appeal under section 25(6) of the Unlawful
Activities (Prevention Act 1967) filed against the order of the Designated
Authority, confirming the seizure of vehicle, dismissed the same, on the
ground that it was filed beyond the limitation period of 30 days.
After the dismissal of the appeal in terms of order dated 21 st
December, 2020, the petitioner once again moved the Trial Court and this
time by way of a simple application, seeking release of his vehicle on the
ground that the petitioner had been discharged in the case and, therefore,
the vehicle was required to be released in his favour. This application has
been rejected by the Trial Court on the ground that prior to filing of this
application, the petitioner had earlier also moved a similar application,
which had been dismissed by the Trial Court, vide order dated 21 st
December, 2020. It is this order of the Trial Court dated 4 th August, 2021,
which is assailed before this Court.
Having heard learned counsel for the parties and perused the
material on record, I am of the view that the order impugned, whereby the
application of the petitioner has been rejected has all the trappings of a
final order and, therefore, appealable before Division Bench of this Court,
in terms of section 21(1) of the NIA Act. For facility of reference, it is
reproduced as under:
(1) Notwithstanding anything contained in the Code, an
appeal shall lie from any judgment, sentence or order,
not being an interlocutory order, of a Special Court to
the High Court both on facts and on law.
(2) Every appeal under sub-section (1) shall be heard by a
bench of two Judges of the High Court and shall, as far
as possible, be disposed of within a period of three
months from the date of admission of the appeal.
(3) Except as aforesaid, no appeal or revision shall lie to
any court from any judgment, sentence or order
including an interlocutory order of a Special Court.
(4) Notwithstanding anything contained in sub-section
(3) of section 378 of the Code, an appeal shall lie to the
High Court against an order of the Special Court
granting or refusing bail.
(5) Every appeal under this section shall be preferred
within a period of thirty days from the date of the
judgment, sentence or order appealed from: Provided
that the High Court may entertain an appeal after the
expiry of the said period of thirty days if it is satisfied
that the appellant had sufficient cause for not
preferring the appeal within the period of thirty days:
Provided further that no appeal shall be entertained
after the expiry of period of ninety days."
From perusal of section 21 of the NIA Act, it is abundantly
clear that an appeal from any judgment sentence or order not being an
interlocutory order of the Special Judge under NIA Act lies to the High
Court both on fact and on law.
In view of the statutory remedy of appeal provided under the
National Investigating Agency Act, 2008, there is no warrant for
entertaining this writ petition under Article 226 of the Constitution of
India. This petition is, therefore, held not maintainable and, accordingly,
dismissed with liberty to the petitioner to challenge the impugned order
by way of an appropriate appeal as provided under the NIA Act.
(SANJEEV KUMAR)
JUDGE
SRINAGAR
10.05.2022
Hilal Ahmad
