Public Prosecutor's report cannot be supplied to accused while extending remand under UAPA: Delhi High Court

The Delhi High Court held on Friday that at the time of extension of remand beyond the initial period of 90 days under Section 43(D)(2) of the Unlawful Activities Prevention Act (UAPA), the report furnished by the public prosecutor cannot be supplied to the accused..A division bench of Justices Mukta Gupta and Anish Dayal said that at the stage of extending the remand, the Court would not be required to give reasons as to how a prima facie offence under UAPA is made out because it would entail disclosure of the investigation.The special court would be required to satisfy itself about this requirement, the High Court said."Even without being supplied with the copy of the public prosecutor's report, if the accused is heard on the relevant facts which go to the root of granting extension of time for continued investigation, the same will be a meaningful notice," the bench said.However, the Court clarified that when the accused is produced to inform him about the extension of period of investigation, the accused cannot be a silent spectator. "The special court would be required to take into consideration, submissions on behalf of the accused, while examining public prosecutor's report regarding progress of investigation, and the reasons for seeking further detention, for continued investigation," the High Court made it clear..The Court passed the order while hearing a bunch of pleas filed by the accused under the UAPA. The petitioners challenged extension of their custody beyond the initial period of 90 days. It was argued that under Section 43(D)(2) of the UAPA, the extension of period of detention beyond 90 days can be done only if the trial court is satisfied with the public prosecutor's report indicating the progress of investigation and specific reasons for detention of accused beyond the initial period. The petitioners said that such extension can be granted only where it is not possible to complete the investigation within the initial period of 90 days and the phrase “not possible” has to be interpreted as “impossible” with an element of finality and the prosecution must establish a higher threshold to obtain extension of period of investigation..However, after considering the Act as well as judicial pronouncement on the issue, the bench said that the words “not possible” cannot be raised to the level of “impossibility”. "The term used in the proviso to Section 43D(2)(b) of UAPA is “not possible”. It is well settled principle of interpretation that when the literal meaning of a statute is clear and unambiguous, some other word cannot be read into the statute."The Court said that the offences relating to terrorism are hatched in secrecy with multiple accused involved, entailing unearthing of serious technological evidence, hence it may take longer time for the investigating agency to collect relevant and admissible evidence to prove the same..Therefore, the Court said that the essential requirements to be seen by the special court at the stage of extension of remand are: Reasons evidencing the personal satisfaction of the public prosecutor as regards the progress of investigation made based on the investigation carried out;Reasons indicating why the investigation could not be completed within the period of 90 days; and Further investigation required to be carried out for which, extended period of time is necessary."All these three essential ingredients must form part of the public prosecutor's report, based on which the Special Court would arrive at the satisfaction to extend the period of remand”..In a detailed judgment, the bench also dealt with the issue of whether a special court can grant extension of remand of further 90 days beyond an initial period of 90 days in one go or in a truncated manner. The High Court said that the trial court will apply its mind to find out the reasonable time required and then extend custody for such period. "...whenever a report of the Public Prosecutor is presented for seeking extension of time for investigation beyond 90 days, the Special Court will apply its mind to find out the reasonable time required to complete the investigation and extend the period of custody for such period; subject to the right of the investigating agency to seek further extension of remand based on a fresh report of the public prosecutor, upto a maximum of 90 days.".After dealing with the legal issues, the court rejected the petitions by the accused Zeeshan Qamar, Mizha Siddeeque, Shifa Haris, Hanan Gulzar Dar, Zamin Adil Bhat and Haris Nisar Langoo. While Qamar was arrested by the Delhi Police special cell on terror charges in September 2021, Siddeeque and Haris were arrested by the NIA in August 2021 for on allegations that they were ISIS operatives. Dar, Bhat and Langoo were arrested in relation to alleged terror funding in Jammu and Kashmir. The bench, however, quashed order extending custody of Mushab Anwar and Dr Rahees Rashid. The plea of Mohd Manan Dar was dismissed as infructuous because he was granted regular bail by the trial court. .Advocates Shahrukh Alam, Rashmi Singh, Ahmad Ibrahim, Shantanu, Jawahar Raja, Varsha Sharma Archit Krishna, Irshad Hanif, Mohit Kumar, Rizwan Ahmad, Ashok Aggarwal, Dhruv Sharma, Aditi Saraswat, Tara Narula, Tamanna Pankaj, Priya V and Priya Sahil appeared for the appellants. NIA was represented through ASG Vikramjit Banerjee, SPPs Akshai Malik and Gautam Narayan, as well as advocates Khawar Saleem, Prachi Nirwan and Asmita Singh. ASG SV Raju along with advocates Venkatesh Rao, Ankit Bhatia, Harsh Paul Singh and Madhumita Kesavan appeared for the Delhi Police. .[Read Judgment]