Safiya Malik

The High Court of Delhi Division Bench of Justice Subramonium Prasad and Justice Harish Vaidyanathan Shankar dismissed an appeal challenging the rejection of default bail sought under Section 167(2) Cr.P.C read with Section 43D(2) of the Unlawful Activities (Prevention) Act, 1967. The court affirmed the validity of the orders passed by the Trial Court extending the period of detention and denying bail, holding that the Special Court had not acted mechanically but rather applied its mind to the facts and requirements of the case. The Division Bench directed that the continued detention of the appellant was lawful as the statutory conditions under UAPA had been met and the investigation was demonstrably ongoing. The appeal was therefore dismissed, and all pending applications stood disposed of accordingly.

The matter arose from a criminal appeal filed under Section 21 of the National Investigation Agency Act, 2008. The appellant challenged three specific orders of the Learned Additional Sessions Judge, Patiala House Courts, Delhi, dated 24.02.2024, 26.02.2024, and 11.03.2024, in RC 29 of 2023. These orders extended the appellant's detention under Section 43D(2) of UAPA, remanded him to judicial custody, and dismissed his application for default bail.

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The origin of the investigation dates back to 17.07.2023, when FIR No. 175/2023 was registered at Police Station Kothrud, Pune, Maharashtra, against three individuals under Sections 468, 379, 511 and 34 of the IPC, Sections 3 and 4 read with Section 25 of the Indian Arms Act, and Sections 37(1)(3) and 135 of the Maharashtra Police Act. The FIR was subsequently transferred to the Maharashtra ATS and re-registered as FIR No. 6/2023 on 22.07.2023. UAPA charges under Sections 13, 15, 16(1)(b), 18 and 20 were added during further investigation.

The case was later transferred to the NIA and registered as RC 05/2023/NIA/MUM. Meanwhile, on 18.09.2023, FIR No. 243/2023 was registered at Police Station Special Cell, Delhi, indicating that one Shahnawaz Alam and a person named Rizwan were allegedly conspiring to conduct terrorist acts in Delhi. This led to raids across Delhi and Uttar Pradesh on 30.09.2023 and 01.10.2023. The raids resulted in the arrests of the appellant, Mohd. Rizwan, and co-accused Arshad Warsi on 01.10.2023, followed by the arrest of Shahnawaz Alam on 02.10.2023.

The accused were presented before the court and remanded to police custody from 02.10.2023 to 25.10.2023. On 19.10.2023, the Ministry of Home Affairs issued an order directing NIA to take over the Delhi FIR investigation, leading to its re-registration as RC 29/2023/NIA/DLI. The FIR was placed before the NIA Court on 07.11.2023, and the records were handed over on 22.11.2023.

According to the NIA, the appellant and his co-accused were affiliated with ISIS and involved in radicalizing youth, procurement of explosives, and spreading ISIS propaganda through digital platforms. Investigations led to the recovery of digital devices and materials, arms, and large sums of cash. Based on disclosures from the accused, further arrests were made on 09.12.2023, resulting in the arrest of 15 individuals.

The initial 90-day period for filing the charge sheet was set to expire on 29.12.2023. The NIA sought an extension of 60 days, which was granted by the Trial Court on 09.12.2023, thereby extending the deadline to 27.02.2024. A subsequent extension of 30 days was sought on 12.02.2024. On 24.02.2024, the Trial Court extended custody by an additional 25 days. On the same date, the appellant moved an application for default bail under Section 167(2) Cr.P.C, which was dismissed by the Trial Court on 11.03.2024.

The appellant contested the Trial Court’s extension orders, arguing they were passed mechanically without individual assessment. He claimed the Trial Court failed to consider whether the continued detention was necessary and submitted that the prosecution had not demonstrated compelling reasons for further custody. It was further argued that the investigation against the appellant was effectively complete, as evident from the charge sheet filed in the Mumbai case (RC No. 05/2023/NIA/MUM) and subsequent arrests.

The appellant relied on the Supreme Court decision in Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, to argue that gravity of the offence is irrelevant for default bail, and the delay in filing the charge sheet cannot justify continued detention.

In response, the NIA contended that the case posed a grave threat to national security and was part of a broader conspiracy involving multiple states and international linkages. It was submitted that the investigation was active and evolving, and several aspects were still under inquiry, including digital forensics, money trails, and encrypted communications. The NIA submitted a 90-page report outlining the reasons for the extension.

The Division Bench extensively examined the contentions and the impugned order. The court noted that "the essential requirements to be seen by the learned Special Court at the stage of extension of remand of the accused for further period to complete the investigation under the proviso to sub-section (2)(b) to Section 43-D of the UAPA are":

(i) Reasons evidencing the personal satisfaction of the Public Prosecutor as regards the progress of investigation made based on the investigation carried out.

(ii) Reasons indicating why the investigation could not be completed within the period of 90 days.

(iii) Further investigation required to be carried out for which, extended period of time is necessary.

The court stated that "all these three essential ingredients must form part of the Public Prosecutor's report, based whereon the satisfaction to extend the period of remand has to be exercised by the Special Court."

Quoting from the Trial Court’s order, the Division Bench recorded: "The progress of investigation by NIA during the extended period of 60 days has been mentioned separately. The progress made in the investigation during this period is not submitted in a general form rather details are given in chronological order."

It was noted that the report mentioned: "extension of time is sought to analyze the extracted data of digital device(s) recovered from accused. It is argued and reported that the said data contains huge number of images, videos, files etc related to ISIS which needs to be thoroughly examined."

The Trial Court had also noted: "Certain accused/suspects are absconding and to trace them further time is required. That verification of documents relating to accused is underway. That investigation in respect of the vehicles used during the commission of offence is also underway."

The High Court concluded: "The Ld. Trial Court has passed a reasoned order after due consideration of the statutory safeguards as prescribed under Section 43D(2) of the UAPA."

"The Report, which is about 90 pages long, has demonstrated the progress of the investigation in a detailed, chronological and specific manner."

Regarding the merits of continued custody, the court recorded: "The material on record indicates that the three accused, including the Appellant herein, are active members of the ISIS. They are propagating the ideology of the ISIS and trying to recruit youth."

The court observed: "Material was being unearthed to establish that the accused, including the Appellant herein, were conducting recce at various Indian cities including, but not limited to, Delhi, Mumbai, Ahmedabad, Surat etc for terrorist activities."

"A money trail from Maldives was also being investigated."

The court further noted: "Substantial cash and arms have been seized from A3 and explosive material has been seized from the Appellant herein and a report from the FSL was being obtained."

With respect to the data seized, the Division Bench recorded: "Certain magazines of ISIS organisation have also been found which were being translated on the instructions of the handlers which have been shared with the Appellant herein on Telegram App through encrypted mode and the details of which were to be investigated."

"The Public Prosecutor’s Report indicates that at the time when extension of custody of the Appellant was sought, investigation was being conducted on a day to day basis."

"Further, the Respondent was making concerted efforts to collect crucial evidence."

"The Appellant and the co-accused convened meetings and actively supported the organization in furtherance of unlawful activities."

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The Division Bench, after examining the impugned orders and the material on record, issued the following final directions:

It held that "the Trial Court’s order of detention of the Appellant is not mechanical in nature." The court stated that "The Appellant could not have been released on account of ongoing investigation as releasing them at a crucial stage would have impeded the investigation."

The appeal challenging the validity of the orders dated 24.02.2024, 26.02.2024, and 11.03.2024 was dismissed in full. The Division Bench concluded: "Resultantly, the appeal is dismissed, along with pending application(s), if any."

Advocates Representing the Parties:

For the Petitioners: Mr. Abhinav Sekhri and Ms. Deeksha Dwivedi, Advocates

For the Respondents: Mr. Gautam Narayan, Senior Standing Counsel with Ms. Zeenat Malick, Public Prosecutor, and Ms. Asmita Singh, Mr. Tushar Nair, Mr. Anirudh Anand, Mr. Punishk Handa, Mr. Abheet Mangleek, Ms. Disha Joshi, Ms. Gunita Dandon, and Mr. Manoj Yadav, Inspector for NIA

Case Title: Mohd Rizwan Ashraf v. National Investigation Agency

Neutral Citation: 2025: DHC:6022-DB

Case Number: CRL.A. 480/2024

Bench: Justice Subramonium Prasad, Justice Harish Vaidyanathan Shankar