UAPA Provides For Complete Adjudication, Statutory Remedy Can't Be Surpassed By Invoking NIA Act: Jammu & Kashmir and Ladakh High Court

The Jammu & Kashmir and Ladakh High Court has held that the Unlawful Activities (Prevention) Act, 1967 provides for a complete mechanism for adjudication and the statutory remedy provided under it cannot be surpassed by invoking National Investigation Agency Act, 2008.

The Court was considering an Appeal filed under Section 21 of the NIA Act against an order passed by Special Judge whereby the Application for release of vehicle in case registered under Sections 7, 25 of the Indian Arms Act and Sections 13, 16 and 18-B of the UAPA Act was dismissed.

The division bench of Justice Sindhu Sharma and Justice Shahzad Azeem held, ".....we do not deem it proper to go into the question of non-adherence of timeline provided under Section 25 of the UA(P) Act, as has been asserted by the learned Senior Counsel for the Appellant, in that, there is a complete mechanism provided under Section 25 of the UA(P) Act for raising all these points before the statutory forum and, as such, if still the Appellant will be dissatisfied, he can have his remedy before the Special Court under Section 25 (6) of the UA(P) Act and thereafter under Section 28 before this Court, therefore, the Appellant cannot maintain the appeal under Section 21 of the NIA Act."

The Appellant was represented by Senior Advocate S. T. Hussain while the Respondent was represented by Senior Additional Advocate General Mohsin-ul-Showkat.

Facts of the Case

The specific allegation was that during spot personal search of both the accused, 90 live rounds of AK 47 and one live hand grenade was recovered. During further questioning, it came to fore that both the accused had allegiance with the banned terrorist outfit Lashker-e-Toiba (TRF) and have been actively involved in terrorist related activities, including instigation of youth to join terrorist cadres, etc.

An FIR was consequently registered under Section 7, 25 IA Act read with Sections 13, 16 and 18-B of the UA(P) Act and 3 Explosive Substances Act. One load carrier used in the terrorist related activities by the accused was also seized and retained under Section 25 of the UA(P) Act.

The main ground of challenge urged in the Appeal was that the seized vehicle came to be purchased by raising financial loan and is also the only source of sustenance of the family of the Applicant, whereas, the vehicle is kept at Police Station since November 27, 2023 and that, in case the same is not released, it would be damaged beyond repairs. It was further submitted that the vehicle in question was never used for any terrorist related activities and, in case the vehicle will be required by the Investigating Agency, they will handover the same.

Senior Counsel for the Appellant argued that the timeline provided under Section 25 of the UA(P) Act and the requirement of prior approval for seizure of the vehicle was not followed, which goes to the root of the matter and, thus, the entire proceedings are vitiated.

On the other hand, Senior Additional Advocate General, appearing for the UT, submitted that Section 25 of the UA(P) Act is a complete code in itself, which has been scrupulously followed, however, the impugned Order as well as the seizure of the vehicle are interim measures, as till date, the said action has been neither confirmed nor revoked by the Designated Authority, therefore, the Appeal is not maintainable.

Reasoning By Court

The Court agreed with the Senior Additional Advocate General that there is a complete mechanism provided under the UA(P) Act itself, right from the seizure of the property to production before the Designated Authority and, thereafter, the statutory appeal to the Special Court and then to the High Court.

"The present appeal is also not maintainable for the reason that Section 21 of the NIA Act provides for an appeal from any judgment or order not being an interlocutory order of the Special Court to the High Court, both on facts and law. It is trite law that an Order rejecting the application for release of seized property is interlocutory in nature as it does not finally determine the rights of the parties.....Therefore, having regard to the bar created under Section 21 of the NIA Act, the present appeal, yet for this reason, is also not maintainable", the Court ruled.

The Appeal was accordingly dismissed.

Cause Title: Yasir Ahmad Bhat vs. Union Territory of Jammu & Kashmir Through SHO P/S Srigufwara

Appearances:

Appellant- Senior Advocate S. T. Hussain, Advocate Nida Nazir

Respondent- Senior Additional Advocate General Mohsin-ul-Showkat, Assisting Counsel Nowbahar Khan

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