Delhi High Court to examine threshold required for extension of pre-charge detention under UAPA

The Delhi High Court is set to examine the threshold required for extension of pre-charge detention under the Unlawful Activities Prevention Act (UAPA) on the ground that the investigation could not be completed within the stipulated time of 90 days [Zeeshan Qamar v State of NCT of Delhi].A Bench of Justices Siddharth Mridul and Anup Jairam Bhambhani issued notice on a plea filed by, Zeeshan Qamar, arrested by the Delhi Police earlier this year on the allegations that he had travelled to Pakistan and received training in handling explosives while ISI was plotting a serial blast in India..The plea filed through Advocates Ahmad Ibrahim and Rashmi Singh was argued by Shahrukh Alam. The plea stated that the proviso to Section 43D(2)(b) of the UAPA should be construed as laying down a higher threshold of 'impossibility' in completing investigation within 90 days which is distinct from the threshold of ‘adequate grounds’ mentioned in Section 167(2) of Code of Criminal Procedure (CrPC)..Alam argued that the said section of the UAPA effectively means that the investigating officer has to prove that it was impossible for them to complete the investigation under the stipulated time of 90 days and only then can an extension be given on the pre-charge detention.The petition further said that the higher threshold of 'impossibility' has been inserted in the UAPA for good reason since it is a special act that already grants extraordinarily long period of detention of 90 days for pre-charge detention of the accused, which is an exception in criminal jurisprudence. Therefore, it was contended that any extension of period of detention without charge has to be assessed on a higher threshold.It, therefore, demanded setting aside the order of the Special Judge which extended his pre-charge detention..The Court remarked that this was the first time that such an ‘ingenuous’ argument was being canvassed and it is res integra.The judges added that they are of the prima facie view that stipulation in the proviso could not be stretched so much that there will be test of ‘impossibility’ as it would entail having a totally another trial as to whether it was actually impossible for the investigator to complete the investigation in 90 days.“There is no divergence of opinion that when it comes to stringent provisions we have to be cautious. We have to ensure that Article 21 is not ignored. But prima facie this is in accordance with law. If we lay down the impossibility test then it becomes otiose,” Justice Bhambhani remarked..The Bench, however, said that it will issue notice on the plea since the plea has raised an issue which has not been explored yet and there is no judicial precedent on it either.The matter will now be considered on February 10.