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Redaul Hussain Khan v. National Investigation Agency .
Factual and Procedural Background
The petitioner was arrested on 31-5-2009 along with Mohit Hojai, the then Chief Executive Member of the North Cachar Hills Autonomous Council. According to the forwarding report, Mohit Hojai stated during interrogation that he was sending ₹1 crore to the extremist organisation DHD (J) to buy arms and that he had collected ₹30 lakhs from the petitioner under various schemes.
The Chief Judicial Magistrate, Kamrup initially granted two days of police custody on 31-5-2009, extended it by another two days on 2-6-2009, and later permitted interrogation in jail while denying bail. On 5-6-2009 the National Investigation Agency (NIA) took over the probe, registering NIA Case No. 1 of 2009 and seeking additional custody, which was partly granted and partly refused.
The Union Government issued a notification on 9-7-2009 under Section 3 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) declaring DHD (J) an “unlawful association.” A single judge of the Gauhati High Court dismissed the petitioner’s bail application on 29-7-2009 for want of jurisdiction. A fresh bail plea before the Special Court (Sessions Judge, Kamrup) was rejected on 14-8-2009.
On 28-8-2009, acting under Section 43-D(2)(b) UAPA read with Section 167 CrPC, the Special Court extended the investigation period by 60 days. The petitioner challenged that extension before a Division Bench of the Gauhati High Court, which dismissed the appeal on 19-9-2009. The present special leave petition followed.
Legal Issues Presented
- Whether the provisions of Sections 13, 17 and 43-D of the Unlawful Activities (Prevention) Act, 1967 applied to the petitioner when DHD (J) had not yet been formally declared an “unlawful association” at the time of his arrest.
- Whether the Special Court had jurisdiction to extend the period for completion of investigation beyond 90 days under Section 43-D(2)(b) UAPA, thereby defeating the petitioner’s claim to statutory bail under the proviso to Section 167(2) CrPC.
- Whether the petitioner was entitled to bail on parity with co-accused who had been granted bail despite recovery of larger sums of money.
Arguments of the Parties
Petitioner’s Arguments
- The first information report did not disclose any offence under Section 13 UAPA; hence Section 17 (funding terrorism) and Section 43-D (investigation extension) were inapplicable.
- Because DHD (J) was declared unlawful only on 9-7-2009, the petitioner could not have known at the time of the alleged offence that the organisation engaged in terrorist acts.
- If Section 43-D did not apply, extension of investigation beyond 90 days was illegal, entitling the petitioner to “statutory bail” under Section 167(2) CrPC.
- Co-accused from whom ₹1 crore was seized had obtained bail, whereas only ₹4 lakhs were recovered from the petitioner, supposedly arising from his mother’s lease agreement; denying him bail was discriminatory.
Respondent’s Arguments (State/NIA)
- The commission of terrorist acts by DHD (J) existed independently of its later formal declaration as an unlawful association; the declaration merely recognised ongoing activities.
- By abetting DHD (J)’s terrorist acts, the petitioner fell squarely within Sections 13 and 17 UAPA, read with the definition of “terrorist act” in Section 15.
- Newspaper reports about possible amnesty initiatives were speculative and did not negate the organisation’s terrorist conduct or the applicability of UAPA.
- Consequently, the Special Court’s extension order was valid and the petitioner was not entitled to statutory or discretionary bail.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court rejected the petitioner’s primary contention that UAPA provisions were inapplicable because DHD (J) had not yet been declared unlawful at the time of arrest. It reasoned that an organisation could engage in terrorist acts even before a formal declaration, and that such acts justified its later proscription. Hence Sections 13 and 17 UAPA—and by extension Section 43-D—were operative.
Because Section 43-D applied, the Special Court possessed jurisdiction to extend the investigation deadline, nullifying the petitioner’s claim to statutory bail under Section 167(2) CrPC.
Regarding the seizure of ₹4 lakhs, the court held that further investigation was necessary to probe the petitioner’s and co-accused’s roles in funding terrorist activities, undermining any immediate entitlement to bail on factual or parity grounds.
Holding and Implications
The special leave petitions were dismissed; bail was denied.
Immediate Consequence: The petitioner remains in custody while investigation continues under the extended timeline validated by the court.
Broader Implication: The decision affirms that UAPA provisions may apply to conduct predating a formal notification declaring an organisation “unlawful,” and that Special Courts may extend investigation periods pursuant to Section 43-D even in such circumstances. No new legal precedent was expressly set, but the ruling underscores the broad reach of UAPA in ongoing terrorism investigations.
Order
1. The petitioner herein was arrested on 31-5-2009 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 organisation known as DHD (J), an extremist organisation, 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 31-5-2009. 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 2-6-2009. 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 5-6-2009 and the case was renumbered as NIA 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.
4. On 6-6-2009, the prayer made by NIA for further ten days' custody of the petitioner was allowed by the learned Magistrate. A similar prayer made on 15-6-2009 was rejected on 29-6-2009. 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 Gauhati High Court and while the same was pending, the Government of India, Ministry of Home Affairs issued a Notification dated 9-7-2009 in exercise of its powers under Section 3 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as “the 1967 Act”) declaring DHD (J) along with its factions, wings and front organisations to be an “unlawful association”.
5. On 29-7-2009, the learned Single Judge of the Gauhati 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 14-8-2009. Thereafter, on an application made by NIA on 27-8-2009, the Sessions Judge (Special Court), Kamrup by his order dated 28-8-2009 extended the period for completion of investigation by a further period of 60 days in terms of Section 43-D(2)(b) of the 1967 Act as amended, read with Section 167 CrPC.
6. The said order of the learned Sessions Judge, Special Court, Kamrup was challenged by the petitioner herein before the Division Bench of the Gauhati High Court on 29-5-2009 under Section 21 of the 2008 Act by way of Criminal Appeal No. 148 of 2009. The same was dismissed on 19-9-2009 against which the present special leave petition has been filed.
7. 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. The 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 43-D would have no application as far as the petitioner was concerned.
8. 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 organisation to commit a terrorist act.
9. Mr Ghosh submitted that only on 9-7-2009, long after the petitioner's arrest on 31-5-2009, DHD (J) along with all its factions, wings and front organisations 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”.
10. According to Mr Ghosh, if the provisions of Section 43-D 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) CrPC 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.
11. 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 Sections 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.
12. 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. Mr Ghosh's submissions were adopted by Mr Altaf Ahmed, learned Senior Advocate, appearing on behalf of the petitioner in SLP (Crl.) No. 7399 of 2009, Mohit Hojai.
13. 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.
14. Mr Rawal submitted that it was the commission of such terrorist acts which resulted in the said organisation 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.
15. 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 materialise, and on the other hand, it also indicated that the said organisation 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” some time 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.
16. 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 organisation could not have indulged in terrorist acts or that the petitioner could not have had knowledge of such activities.
17. 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.
18. 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.
19. We are not, therefore, inclined to entertain both the special leave petitions and the same are, accordingly, dismissed.
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