SC notice to NIA

he Supreme Court has sought the newly-constituted National Investigation Agency's response on a petition questioning its power to invoke a stringent act with retrospective effect against an Assam government official for "waging war" against the country. Deputy director of Social Welfare Department, North Cachar HIlls, Redaul Hussain Khan was arrested on May 31 by Assam's Bashishta police on charges of providing financial support to Dima Halam Daogah (Joel)-- DHD (J), a separatist organisation clamouring for an independent homeland. The apex court will examine whether the Unlawful Activities (Prevention) Act could be invoked retrospectively, since at the time of Khan's arrest, the DHD-(J) was not banned under the Unlawful Activities (Prevention) Act. The issue is of considerable significance as under the act the accused can be detained for up to 180 days of judicial custody without a bail, unlike the IPC provision where an accused is entitled to bail if the investigating agency is unable to file the chargesheet within the 90 days period. Incidentally, the case against Khan is said to be the first ever case registered by the NIA which was constituted early this year in the wake of the 26/11 Mumbai terror attack. A bench of Justices Altamas Kabir and B Sudershan Reddy issued notice to the NIA on the petition filed by Khan through counsel Azim H Lashkar. Cases were booked by Assam Police against Khan and another accused Mohit Hojai under IPC Sections 120-B (criminal conspiracy), 121 (waging or attempting to wage war against India) and 121 A (conspiring to commit offence against the country) besides Section 25(1-b) A of the Arms Act. However, on June 5, the NIA took up investigations in the matter and the case was renumbered as NIA Case No 1/2009 and a separate FIR was also filed by the agency in the court of the Chief Judicial Magistrate Kamrup at Guwahati. After granting 10-day police custody of the accused to the NIA, the magistrate remanded them to judicial custody but rejected both the agency's plea for further 15-day police custody and bail plea of the accused. In the meantime on July 9, the Union Home Ministry issued a notification under Section of the Unlawful Activities (prevention) Act 1977 declaring the DHD(J) and its other factions as unlawful organisations. On August 27, the NIA moved the court of the Sessions Judge, Kamrup, seeking extension of the time limit from 90 to 180 days for completion of investigations against the two accused. The court agreed to extend the custody of the accused for 60 days and also granted liberty to the NIA to move another application if necessary for a further 60 days custody of the accused. The accused challenged the extension of the remand in the Gauhati High Court but the plea was rejected, following which they moved the apex court. The SC agreed to issue notice to the NIA after a senior counsel appearing for the accused submitted that the issue was of vital importance as it involved the powers of the state to apply a stringent provision with retrospective effect.

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