REDAUL HUSSAIN KHAN v.

NATIONAL INVESTIGATION AGENCY (SLP (Crl.) No.7343 of 2009)

NOVEMBER 19, 2009 [ALTAMAS KABIR AND CYRIAC JOSEPH, JJ.]

[2009] 15 (Addl.) SCR 1038

The following Order of the Court was delivered

ORDER

1. The petitioner herein was arrested on 31st May, 2009, along with one  

Mohit  Hojai  and  on  the  same  day  they  were  produced  before  the  Chief  

Judicial  Magistrate,  Kamrup,  at  Guwahati.  In  the  forwarding  report  it  was  

indicated  that  the  ground  for  arresting  the  petitioner  was  that  during  

interrogation of  Mohit  Hojai,  who was the Chief  Executive Member of  the  

North Cachar Hills Autonomous Council, had disclosed that he was sending  

an amount of Rs.1 crore to an organization known as DHD(J), an extremist  

organization, to enable it to purchase arms and ammunitions. It was indicated  

that Mohit Hojai had also disclosed that he had collected Rs.30 lakhs from the  

petitioner under different schemes.

2. On the prayer made on behalf of the investigating agency, the Chief  

Judicial  Magistrate,  Kamrup,  sent  the  petitioner  to  police  custody on 31st  

May, 2009. After the expiry of the said period of two days, a prayer was made  

for extension of police custody which was allowed for a further period of two  

days by the learned Magistrate by his order dated 2nd June, 2009. Further  

prayer  for  custodial  interrogation  was  rejected  by  the  Chief  Judicial  

Magistrate, Kamrup, who, however, granted permission to the investigating  

officer to interrogate the petitioner in the Central Jail, Kamrup, Guwahati. On  

the same day, the learned Magistrate also rejected the petitioner’s prayer for  

grant of bail.

3. While the investigation was pending with the State Police, the National  

Investigating Agency constituted under the National Investigation Agency Act,  

2008 (hereinafter referred to as “the 2008 Act”) took over the investigation on  

5th June, 2009 and the case was renumbered as N.I.A. Case No.1 of 2009. A  

separate First Information Report was also filed by the National Investigating  

Agency (hereinafter  referred to as “NIA) in the Court  of  the Chief  Judicial  

Magistrate, Kamrup. On 6th June, 2009, the prayer made by NIA for further  

ten days’ custody of the petitioner was allowed by the learned Magistrate. A  

similar prayer made on 15th June, 2009, was rejected on 29th June, 2009.  

The learned Magistrate also rejected the bail application filed on behalf of the  

petitioner along with  the co-accused. Immediately thereafter,  the petitioner  

filed a bail application before the Guwahati High Court and while the same  

was pending, the Government of India,  Ministry of Home Affairs,  issued a  

notification dated 9th July, 2009, in exercise of its powers under Section 3 of  

the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as the  

“1967 Act”),  declaring the DHD(J)  along with  its  factions,  wings  and front  

organizations to be an “unlawful association”.  

4. On 29th July, 2009, the learned Single Judge of the Guwahati High  

Court dismissed the petitioner’s bail application on the ground of jurisdiction.  

The  petitioner  filed  another  bail  application  before  the  Sessions  Judge  

(Special  Court),  Kamrup,  Guwahati,  which  was  rejected  on  14th  August,  

2009. Thereafter, on an application made by the NIA on 27th August, 2009,  

the Sessions Judge (Special Court), Kamrup, by its order dated 28th August,  

2009 extended the period for completion of investigation by a further period of  

60 days in terms of Section 43D(2)(b) of the 1967 Act as amended, read with  

Section  167 Cr.P.C.  The said  order  of  the  learned Single  Judge,  Special  

Court, Kamrup, was challenged by the petitioner herein before the Division  

Bench of the Guwahati High Court on 29th May, 2009, under Section 21 of  

the  2008  Act  by  way  of  Criminal  Appeal  No.148/2009.  The  same  was

dismissed on 19th September, 2009 against which the present Special Leave  

Petition has been filed.

5. Mr. Pradip Ghosh, learned Senior Advocate, who appeared in support  

of the Special Leave Petition questioned the order of the High Court and also  

that of the learned Sessions Judge (Special Court) mainly on two grounds.  

Learned counsel firstly urged that the allegations made against the petitioner  

in the First Information Report do not make out a case under Section 13 of  

the 1967 Act. He then submitted that as no case had been made out against  

the petitioner which would attract the provisions of Section 13 of the 1967 Act,  

the provisions of Section 17 also would not be attracted to the petitioner’s  

case  and  accordingly,  the  provisions  of  Section  43D  would  have  no  

application as far as the petitioner was concerned.  

6. Mr. Ghosh urged that in order to attract the provisions of Section 17 of  

the aforesaid Act it would be necessary for the investigating agency to show  

that the petitioner had either collected funds for or provided funds to DHD(J)  

having  knowledge  that  such  funds  were  likely  to  be  used  by  the  said  

organization to commit a terrorist act.  

7.  Mr.  Ghosh  submitted  that  only  on  9th  July,  2009,  long  after  the  

petitioner’s arrest on 31st May, 2009, DHD(J) along with all its factions, wings  

and  front  organizations  were  declared  to  be  an  unlawful  association.  Mr.  

Ghosh submitted that at the point of time when the offence was alleged to  

have been committed by the petitioner, DHD(J) had not been so declared and  

it  was  not,  therefore,  possible  for  the  petitioner  to  have  knowledge  that  

DHD(J) was indulging in “unlawful terrorist acts”. According to Mr. Ghosh, if  

the provisions of Section 43D of the 1967 Act did not apply to the petitioner,  

the extension of the period of investigation beyond 90 days, as contemplated  

by Section 167(2) Cr.P.C. must be held to be illegal and the petitioner would,  

therefore,  be entitled to  the grant  of  statutory bail  in  accordance with  the  

proviso to the said section.

8. Mr. Ghosh also urged that although, the two accused – (i) Phojendra  

Hojai  and  (ii)  Babul  Kemprai,  who  were  intercepted  and  from  whose  

possession  a  sum  of  Rs.1  crore  was  recovered,  were  granted  bail,  the  

petitioner, from whose possession a sum of Rs.4 lakhs was seized, had been  

denied  bail  despite  the  fact  that  there  was  no  evidence  whatsoever,  to  

connect  him  in  any  way  with  any  “terrorist  act”  or  “unlawful  activity”,  as  

defined  under  Section  2(1)(k)  and  (o)  of  the  1967  Act.  Mr.  Ghosh  also  

contended that the money seized from his possession was in respect of a  

lease agreement entered into by his mother and he was holding the said  

money on her behalf.

9. Mr. Ghosh submitted that in the facts of the case, the petitioner was  

entitled to the privilege of bail during the pendency of the investigation.  

10. Mr. Ghosh’s submissions were adopted by Mr. Altaf Ahmed, learned  

Senior  Advocate,  appearing  on  behalf  of  the  petitioner  in  

SLP(Crl.)No.7399/2009, Mohit Hojai.

11.  The submissions  made by Mr.  Ghosh  and Mr.  Altaf  Ahmed were  

strongly opposed by the learned Additional Solicitor General, Mr. H.P. Rawal,  

who contended that indulgence in terrorist acts by DHD(J) did not depend on  

whether  it  was  declared  as  an  “unlawful  association”  or  not.  Mr.  Rawal  

submitted that it was the commission of such terrorist acts which resulted in  

the said organization being declared as an “unlawful  association”  and the  

petitioner having abetted such activities, by virtue of the provisions of Section  

15 of the 1967 Act, his case came squarely within the scope of Sections 13  

and 17 of the said Act.  

12. Mr. Rawal submitted that although Mr. Ghosh had referred to some  

newspaper reports indicating that there was a possibility of amnesty being  

granted to the members of DHD(J), the same was yet to materialize, and, on  

the other hand, it also indicated that the said organization was indulging in  

terrorist  activities.  Accordingly,  in  view of  the definition of  “terrorist  act”  in

Section 15 of the 1967 Act and the provisions of Sections 13 and 17 thereof,  

there  was  little  doubt  that  even  on  the  date  when  the  petitioner  was  

apprehended, DHD(J) was indulging in terrorist acts, although, it came to be  

declared as an “unlawful association” sometime later. Mr. Rawal urged that  

having regard to the above, the Special Leave Petitions filed against the order  

of the High court refusing to grant bail were liable to be dismissed.

13. We have carefully considered the submissions made on behalf of the  

respective  parties  and  we  are  unable  to  agree  with  Mr.  Ghosh  that  the  

provisions of  the  Unlawful  Activities  (Prevention)  Act,  1967,  would  not  be  

attracted to the facts of the case. We are also unable to accept Mr. Ghosh’s  

submissions  that  merely  because  DHD(J)  had  not  been  declared  as  an  

“unlawful association” when the petitioner was arrested, the said organization  

could not have indulged in terrorist acts or that the petitioner could not have  

had  knowledge  of  such  activities.  Accordingly,  Mr.  Ghosh’s  submissions  

regarding the grant of statutory bail have to be rejected since, in our view, the  

learned Sessions Judge (Special  Court)  had the jurisdiction to  extend the  

time for completion of the investigation.  

14. As far as Mr. Ghosh’s second submission is concerned, the recovery  

of Rs.4 lakhs from the petitioner’s custody would require further investigation  

into the allegations made not only against the petitioner but the other accused  

persons as well.  

15. We are not, therefore, inclined to entertain both the Special Leave  

Petitions and the same are, accordingly, dismissed.