Kerala High Court
Shamnad E.K vs Union Of India on 29 July, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl. A.No. 1184/2025 1 2025:KER:55384
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
CRL.A NO. 1184 OF 2025
AGAINST THE JUDGMENT DATED 27.05.2025 IN CRMP NO.248
OF 2025 OF SPECIAL COURT FOR TRIAL OF NIA CASE,
ERNAKULAM
APPELLANT:
SHAMNAD E.K.
AGED 34 YEARS
S/O ALAVI, ELLIKKAL HOUSE, KARAKKUNNU POST, PAZHEDAM,
MANJERI, MALAPPURAM DISTRICT, PIN - 676123
BY ADV SHRI.E.A.HARIS
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY SUPERINTENDENT OF POLICE, NATIONAL
INVESTIGATION AGENCY, KOCHI, PIN - 682020
2 INSPECTOR OF POLICE
NATIONAL INVESTIGATION AGENCY, NIA KOCHI UNIT, KOCHI,
PIN - 682020
BY ADV SRI.SREENATH SASIDHARAN
SRI. SASTHAMANGALAM AJITHKUMAR
SMT.O.M. SHALINA, DSGI
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 29.07.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Raja Vijayaraghavan V., J.
The challenge raised in this appeal, filed under Section 21 of the National
Investigation Agency Act, 2008, is directed against the order dated 27.05.2025
passed by the Special Court for the trial of NIA cases (Ernakulam). By the said order,
the application filed by the Investigating Officer for police custody of the appellant
was allowed, and police custody was granted from 12:30 p.m. on 27.05.2025 till
5:00 p.m. on 31.05.2025. The appellant underwent police custody and was
thereafter remanded back to judicial custody on 31.05.2025. The instant appeal was
however filed only on 23.06.2025. The contention of the appellant is that the order
remanding him to police custody invoking powers under Section 43D(2) is illegal.
Though the issues posed before us are purely academic, we shall address the issues
raised by the learned counsel for the appellant.
2. Since the issues raised are purely legal in nature, an elaborate narration
of the facts may not be necessary. Suffice it to state that the appellant is the 20th
accused in R.C.No.02/2022/NIA/KOC, registered for offences punishable under
Sections 120B, 34, 109, 115, 118, 119, 143, 144, 147, 148, 449, 153A, 341, 302,
201, and 212 r/w. Section 149 and 120B r/w. Section 302 of the Indian Penal Code,
Sections 3(a), (b), and (d) r/w. Section 7 of the Religious Institutions (Prevention of
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Misuse) Act, 1988, Sections 13, 16, 18, 18A, 18B, 20, 22C, 23, 38 and 39 of the
Unlawful Activities (Prevention) Act, 1967, and Section 25(1)(a) of the Arms Act.
3. The appellant was arrested by the NIA on 04.04.2025 and produced
before the Special Court, where he was initially remanded to judicial custody. On
08.04.2025, an application was filed seeking police custody of the appellant for a
period of 7 days. The Special Court allowed the application and granted police
custody from 09.04.2025 to 15.04.2025.
4. Thereafter, on the 53rd day of his arrest, the NIA preferred
Annexure-A4 application for further police custody before the Special Court invoking
the second proviso to Section 43D(2)(b) UAPA for a period of 4 days. Since the
application was preferred after 30 days raising various contentions, the appellant
filed Annexure-A5 objection. The appellant contends that the learned Special Court
without considering the objection and without taking note of the fact that such an
application is not maintainable allowed the application by the impugned order.
5. The learned counsel for the appellant submits that in Senthil Balaji v.
State1, the Hon'ble Supreme Court, while expressing doubts over the correctness of
the dictum in CBI v. Anupam J. Kulkarni2, referred the matter to a larger Bench.
It is further submitted that there has been non-compliance with Section 43D(2)(b)
of the UAPA, in as much as the NIA failed to assign any specific reasons for seeking
[(2024) 3 SCC 51]
[(1992) 3 SCC 141]
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police custody at a belated stage and did not offer any explanation for the delay in
filing the application. According to the learned counsel, the use of the conjunction
"and" in the said provision mandates that both conditions, providing reasons for
custody and explanation for delay, must be satisfied cumulatively.
6. In response, Sri. Sasthamangalam Ajithkumar, the learned counsel for
the respondent, contended that this Court need not undertake a purely academic
exercise. He submits that police custody was, in fact, granted within the initial
30-day period. Relying on the judgment in Gautam Navlakha v. National
Investigation Agency3, it is urged that there is no embargo on filing a subsequent
application for police custody, provided it is within the larger period of 90 days or
180 days, as the case may be, which was available for filing the final report under
the UAPA. He further submitted that in Senthil Balaji (supra), the issue was
referred to a larger Bench, and hence the judgment cannot be treated as binding
precedent. In that view of the matter, it would not be appropriate for this Court to
undertake a conclusive adjudication, particularly in the peculiar facts of the present
case. It is finally submitted that the order of police custody was passed by the
learned Special Judge in accordance with law and does not warrant interference.
7. We have carefully considered the rival submissions and perused the
records.
(2022) 13 SCC 542
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8. In the case on hand, the crime was registered on 19.09.2022. The
Cr.P.C. was repealed and the BNSS had come into force on 1.07.2024. The appellant
was arrested on 4.4.2025 and he was remanded to judicial custody on the same
day. On 08.04.2025 Annexure-A2 application seeking police custody was filed by the
NIA. Police custody was granted by the learned Sessions Judge from 9.04.2025 to
15.04.2025. It is thereafter that Annexure-A4 application was filed on 25.5.2025
seeking police custody for four days which was allowed by the impugned order
granting custody from 12.30 pm on 27.5.2025 till 5 p.m. on 30.5.2025.
9. Section 43D of the UAP Act provides for Modified application of certain
provisions of the Code. The said provision reads as under:
Section 43D (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:--
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"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."
10. The provision states that all offences under the UAPA will be treated
as cognizable. Section 43D(2) modifies the usual rules under Section 167 of the
CrPC regarding how long an accused can be kept in custody during an ongoing
investigation. Firstly, it extends the maximum period of police custody from 15
days to 30 days. Secondly, even in cases where the punishment is less than 10
years, the time allowed to complete the investigation is increased from 60 days
to 90 days. For serious offences punishable with 10 years or more, life
imprisonment, or death, the standard 90-day period remains unchanged.
However, if the investigation cannot be completed within 90 days, the court has
the power to extend this period up to 180 days, but only if the Public Prosecutor
submits a report explaining the progress of the investigation, and the court is
satisfied that there are valid reasons to continue holding the accused in custody.
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The section also provides 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
11. Insofar as the implication of the modified application of Section 167
is concerned, the Apex Court in Gautam Navlakha (supra), has succinctly laid
down the law. It would be apposite at this juncture to refer to the observations
in paragraphs 153 to 155 of the judgment.
153. Under Section 43-D(2)(a), it is clear that the maximum
period of police custody which is permissible has been increased
from 15 days to 30 days. The further modification is that which is
relevant which is incorporated in the second proviso. It contemplates
that the investigating officer can seek with reasons and explaining
the delay obtain the police custody of a person who is in judicial
custody.
154. 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 CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141 , 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
Crl. A.No. 1184/2025 8 2025:KER:55384
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 Anupam
Kulkarni (supra), 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.
155. 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 J.
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, the 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 the Prevention of Terrorism Act is in pari
materia which has been interpreted by this Court in Hussein Haji
Abraham Umarji v. State of Gujarat (2004) 6 SCC 672 and the
decision does not advance the case of the appellant though that was
a case where the police custody was sought of a person in judicial
custody but beyond 30 days.: 2021 SCC OnLine SC 382 at page 613.
(emphasis supplied)
12. In other words, it is only in cases wherein NIA was not granted
police custody during the first thirty days that the legislature has mandated for
reasons being given and for furnishing explanation on the delay. In the case on
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hand, police custody was granted immediately after arrest and during the first 15
days itself. In the application seeking police custody the detailed reasons were
stated as regards the need for custody and it was after being satisfied of the
reasons that custody was granted by the learned Sessions Judge. In view of the
observations in Gautam Navulakha (supra), there was no reason for the NIA
to furnish an explanation for the delay. The situation would have been different if
the NIA had not asked for police custody during the initial 30 days of remand.
13. Even otherwise, the contention that any illegality in passing the
order would affect the authorisation and it will render the detention not
authorised cannot be sustained. In Gautam Navulakha (supra), the Apex Court
had occasion to consider the effect of illegality in the order under Section 167
and it was held as under:
107. Now, it is necessary to make one aspect clear. An order
purports to remand a person under Section 167. It is made without
complying with mandatory requirements thereunder. It results in
actual custody. The period of custody will count towards default bail.
Section 167(3) mandates reasons be recorded if police custody is
ordered. There has to be application of mind. If there is complete
non-application of mind or reasons are not recorded, while it may
render the exercise illegal and liable to be interfered with, the actual
detention undergone under the order, will certainly count towards
default bail. Likewise, unlike the previous Code (1898), the present
Code mandates the production of the accused before the Magistrate
as provided in clause (b) of the proviso to Section 167(2). Custody
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ordered without complying with the said provision, may be illegal.
But actual custody undergone will again count towards default bail.
108. Take another example. The Magistrate gives police
custody for 15 days but after the first 15 days, (not in a case covered
by UAPA) it is not challenged. Actual custody is undergone. Will it not
count? Undoubtedly, it will. The power was illegally exercised but is
nonetheless purportedly under Section 167. What matters is
"detention" suffered. The view taken in the impugned judgment
[Gautam P. Navlakha v. NIA, 2021 SCC OnLine Bom 767] that sans
any valid authorisation/order of the Magistrate detaining the
appellant there cannot be custody for the purpose of Section 167
does not appear to us to be correct. The finding that if any illegality
afflicts the authorisation, it will render the "detention" not authorised
is inconsistent with our conclusion as aforesaid.
In that view of the matter, this appeal is meritless and the same is
dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
K.V. JAYAKUMAR,
JUDGE
PS/27/7/25
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PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE APPLICATION FOR REMAND
DATED 04.04.2025 IN RC NO.2/2022/NIA ON THE
FILES OF SPECIAL COURT FOR THE TRIAL OF NIA
CASES ERNAKULAM
Annexure A2 THE TRUE COPY OF THE APPLICATION FOR POLICE
CUSTODY DATED 08.04.2025 IN CRL. MP NO.155 OF
2025 IN RC NO.2/2022/NIA ON THE FILES OF
SPECIAL COURT FOR THE TRIAL OF NIA CASES
ERNAKULAM
Annexure A3 THE TRUE COPY OF THE ORDER DATED 09.04.2025
IN CRL. MP NO.155 OF 2025 IN RC NO.2/2022/NIA
ON THE FILES OF SPECIAL COURT FOR THE TRIAL
OF NIA CASES ERNAKULAM
Annexure A4 THE TRUE COPY OF THE APPLICATION FOR POLICE
CUSTODY DATED 24.05.2025 IN CRL. MP NO.248 OF
2025 IN RC NO.2/2022/NIA ON THE FILES OF
SPECIAL COURT FOR THE TRIAL OF NIA CASES
ERNAKULAM
Annexure A5 THE TRUE COPY OF THE OBJECTION FILED BY THE
APPELLANT DATED 25.05.2025 IN CRL. MP NO.248
OF 2025 IN RC NO.2/2022/ NIA ON THE FILES OF
SPECIAL COURT FOR THE TRIAL OF NIA CASES
ERNAKULAM
Annexure A6 CERTIFIED COPY OF THE ORDER DATED 27.05.2025
IN CRL. MP NO.248 OF 2025 IN RC NO.2/2022/
NIA ON THE FILES OF SPECIAL COURT FOR THE
TRIAL OF NIA CASES ERNAKULAM
Annexure A7 THE TRUE COPY OF THE REMAND APPLICATION DATED
30.05.2025 IN CRL. MP NO.252 OF 2025 IN RC
NO.2/2022/NIA ON THE FILES OF SPECIAL COURT
FOR THE TRIAL OF NIA CASES ERNAKULAM
