The Jammu & Kashmir and Ladakh High Court has held that the mere existence of Section 48 of the UAPA (Unlawful Activities (Prevention) Act) does not ipso facto render Section 36A of the NDPS Act inapplicable in a case involving allegations of narco-terror financing where offences under both enactments are attracted.

The High Court was considering an appeal filed under Section 21 of the NIA Act, challenging the order passed by the Court of Additional Sessions Judge, Baramulla, whereby the prayer of the appellants for the grant of default bail came to be rejected. The appellant also sought the setting aside of the orders with a consequential direction for enlargement of the appellants on bail.

The Division Bench of Justice Sanjay Parihar and Justice Sanjeev Kumar held, “Mere pendency of sanction under Section 45 of the UAPA did not render the charge-sheet incomplete in law, particularly when the investigating agency expressly reserved liberty to conduct further investigation and thereafter filed a supplementary charge-sheet under Section 173(8) Cr.P.C. upon receipt of sanction. Such a course is permissible in law and cannot, in the facts of the present case, be construed as a device to circumvent the statutory protection available to the accused.”

“This Court is further of the opinion that the provisions of the NDPS Act and the UAPA law, though both special enactments, operate in distinct legislative fields and are required to be harmoniously construed. The mere existence of Section 48 of the UAPA does not ipso facto render Section 36A of the NDPS Act inapplicable in a case involving allegations of narco-terror financing where offences under both enactments are attracted”, it added.

Advocate Aazim Pandith represented the Appellant, while Senior Additional Advocate General Mohsin S. Qadiri represented the Respondent.

Factual Background

The case dates back to the year 2021, when a Maruti Swift car was intercepted within the precincts of Police Station Uri. During the search of the vehicle, two magazines of Chinese pistols, ten live rounds of Chinese pistols, five grenades, five packets of contraband heroin and cash amounting to Rs 3 lakh were recovered. At the relevant time, the vehicle was occupied by three persons, namely, Sajad Anzar Shah, Sharafat Khan and Shahid Hussain. This recovery led to the registration of an FIR under Sections 7, 25 of the Arms Act, Sections 8, 21, 29 of the NDPS Act, and Sections 18 and 23 of the UA(P) Act. The investigation revealed that the recovered contraband had been procured for use in narco-terror activities, and the proceeds realised from its sale were intended to be utilised for carrying out terrorist activities. It was in this background that the appellants, along with the co-accused, came to be arrested.

Reasoning

Considering the facts of the case, the Bench rejected the contention raised by the appellants that there existed no reasonable basis for extending the investigation period. The Bench was of the view that the prosecution had disclosed specific and tangible reasons justifying further investigation, including the apprehension of additional accused and procurement of expert opinion concerning the seized mobile devices.

“Section 36A expressly empowers the Special Court to extend the custody of an accused beyond 180 days, up to one year, upon a report of the Public Prosecutor indicating the progress of investigation and furnishing specific reasons necessitating continued detention beyond the initial statutory period. It is also significant that Section 43- D of the ULA(P) Act similarly prescribes a statutory period of 180 days for completion of investigation”, it added.

Considering that the appellants were not only charged with offences under Sections 8,21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, but were also accused of offences under the Unlawful Activities (Prevention) Act and the Arms Act, the Bench explained that Section 43D (2) of the UAPA specifically provides that where the investigation cannot be completed within a period of 90 days, the Court may, upon being satisfied with the report of the Public Prosecutor indicating the progress of investigation and the specific reasons necessitating continued detention, extend the period of investigation up to 180 days. “Thus, the statute itself contemplates an enlarged period for completion of investigation in offences falling under the UAPA”, it added.

The Bench was of the view that mere pendency of sanction under Section 45 of the UAPA did not render the charge-sheet incomplete in law, particularly when the investigating agency expressly reserved liberty to conduct further investigation and thereafter filed a supplementary charge-sheet under Section 173(8) Cr.P.C. upon receipt of sanction. “The learned trial Court, being vested with jurisdiction as a Sessions Court and also designated as a Special Court for UAPA matters, was fully competent to extend the period of investigation in terms of Section 36A of the NDPS Act”, it held.

Thus, in light of such facts and circumstances, the Bench did not find any error in the order of the Trial Court and dismissed the appeal.

Cause Title: Riyaz Ahmad Hajam v. Union Territory through SHO Police Station Uri District Baramulla (Neutral Citation: 2026:JKLHC-SGR:184)

Appearance

Appellant: Advocate Aazim Pandith

Respondent: Senior Additional Advocate General Mohsin S. Qadiri, Assisting Counsel Maha Majeed

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