Delay In Preferring Appeal U/S.21(5) Of NI Act Can Be Condoned: Gujarat High Court

The High Court was considering a Petition filed by the applicant seeking to condone the delay of 146 days caused in preferring the Criminal Appeal under Section 21 of the National Investigation Agency Act, 2008 (NIA Act) read with Section 483 of the Bhartiya Nagrik Suraksha Sanhita (BNSS) against the order allowing the application seeking extension of the period of investigation / judicial custody under Section 43(D)(2)(b) of the Unlawful Activities (Prevention) Act, 1967 and Section 36A(4) of the NDPS Act, 1985.

The Division Bench of Justice Ilesh J. Vora and Justice R. T. Vachhani held, “Thus, in light of the aforesaid discussion, when there is a divergence of views amongst the different High Courts and the Hon’ble Apex Court being seized with the similar issue on hand, in WP (C) No.1076 of 2019, W.P. (Crl.) No.114 of 2024 and WP (C) No.1167 of 2021 and until the authoritative view is pronounced by the Hon’ble Apex Court, so also without much delving on technicalities, the order to condone the delay finds a good law. The applicant has set out the sufficient cause as observed herein above and therefore, in view of the discussions made in preceeding paragraphs, the present application deserves consideration. Delay of 146 days caused in preferring the appeal is condoned.”

Senior Counsel I H Saiyed represented the Applicant, while Advocate Ankit Shah represented the Respondent.

Factual Background

An extension of the arrested accused’s judicial custody from 90 days to 180 days under the provisions of Section 43D(2) (B) of the Unlawful Activities (Prevention) Act, 1967 and under Section 36A(4) of the NDPS Act, 1985 was moved mainly contending that the NIA couldn't complete the investigation against the accused applicant within the period of 90 days to be completed on July 10, 2025 and to file supplementary charge-sheet against him within the stipulated time.

Upon filing of such application, notice was sent to the applicant–accused herein; however, the applicant–accused allegedly refused to accept the said notice and the said application came to be allowed. Aggrieved thereby, the applicant approached the High Court.

Reasoning

The Bench referred to the judgment of the Apex Court in The State of Uttar Pradesh vs. Sarfarz Ali Jafri (2024) wherein it has been clarified that the pendency of the proceedings before the Court shall not operate as a stay in any proceedings before the High Court, and the High Court may consider and deal with the issue on its own merits.

Referring to Section 21(5) of the NI Act, the Bench explained that the proviso to Section 21(5) provides that the High Court may entertain the appeal after expiry of the said period of thirty days if it is satisfied that a sufficient cause for not preferring the appeal is made out. “The embargo of limitation of 90 days virtually renders an aggrieved person remediless which in the matter of rights guaranteed under Article 21 of the Constitution of India through procedure is not the purpose of law and the right to life and personal liberty in ordinary circumstances cannot be irrationally barred even for a sufferrer who seems indolent and the same cannot be rejected solely on the technical ground”, it stated.

The Bench further stated that the default bail in comparison to the application filed for regular bail stands squarely on a different footing and therefore, the delay sought to be condoned in preferring the appeal, if not condoned, would amount to depriving the applicant of his statutory right.

Thus, condoning the delay of 146 days, the Bench directed the Registry to register the appeal and assign the regular number.

Cause Title: Ankush Kapoor v. National Investigation Agency (Case No.: R/criminal Misc. Application (For Condonation of Delay) No.1104 of 2026)

Appearance

Applicant: Senior Counsel I H Saiyed, Advocate Aaditya D Bhatt

Respondent: Advocate Ankit Shah, Additional Public Prosecutor L B Dabhi

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