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Synopsis

The Delhi High Court on Thursday sought National Investigation Agency’s (NIA’s) response on Hurriyat leader Nayeem Ahmad Khan’s plea challenging the trial court order directing eattachment of the All Parties Hurriyat Conference (APHC) office in Srinagar in a UAPA case. 

During the hearing, Advocate Tara Narula appearing for Khan and Senior Advocate Siddharth Luthra along with Special Public Prosecutor (SPP) Akshay Mallik appeared for NIA.

Narula, on behalf of Khan submitted, “Notice is to be issued in this. This matter was listed for today during the vacation, as the bench did not assemble that day. My Lord! this concerns the scope of S. 33(1) of UAPA, which concerns attachment. I am accused in a UAPA case and I co-own property. I am alleged to be one of the 5 co-owners of the property, the other 4 co-owners are not accused in the trial. That property has been attached on an application by the prosecution (NIA) which I would contend is not maintainable and the attachment has been ordered though that property does not constitute proceeds of terrorism and the prosecution claims that it was not intended to be used for terrorism”.

She contended that the attachment of the concerned property was indiscriminate because the property did not form part of the schedule of properties that was mentioned against Khan's name in the chargesheet and there were no allegations in respect of the property in question.

“My contention as far as S.33 of UAPA is concerned is three-fold. Firstly, term "property" in that Section has to be read in the context of the other provision of the chapter as well as the heading of the chapter within which it falls. The heading of the chapter is Forfeiture of proceeds of terrorism or any property intended to be used for terrorism”, she added.

On being asked by the court as to what the special court said on this, the counsel replied, “The special court said that this is a standalone provision. The other argument that I presented was that where the investigating officer is of the opinion that a property has to be attached, the procedure to be followed by it is described under S. 25 and so on. So, an application by the agency u/S.33(1) of UAPA without resorting to the preceding Section is not maintainable”.

Taking note of the submissions, Justice Siddharth Mridul remarked, “This issue so far is res integra (a case or a question that has not been examined or passed upon)”. “We remember another matter pending before us. We’ll have to examine this, and this will have wider ramifications. We’ll have to hear it once and for all”, added Justice Mridul.

However, the division bench also comprising of Justice Gaurang Kanth refused to issue notice in the matter, as they were apprised by the counsel that there is a condonation of delay in filing the plea by some days. The court issued notice on the application of condonation of delay and sought NIA’s reply on it. Accordingly, the court re-notified the matter for August 7.

Khan has challenged the trial court order dated January 27, 2022. His plea stated that the prosecution has in no way made a case that would allege any misdoing in relation to the property in the past, present, or future and that the principles of natural justice stand violated in the present case.

“As per the prosecution’s case, the property is co-owned by several persons, only one of whom is an accused in the present case. No statements of the alleged co-owners have been recorded by the Prosecution or given notice regarding seeking such attachment. Pertinently, the other co-owners of the property are not accused in the present case. The attachment qua the said persons ought not to have been effected at all, and certainly not without prior court notice”, the plea stated.

“The impugned order incorrectly notes that Section 33(1) UAPA gives specific and clear powers to Special Court for attachment of properties of accused facing trial under Chapters IV and V of the Act and there is no restriction or embargo fixed in exercising the power under said provision. It is respectfully submitted that the placement of the provision in Chapter V UAPA, as well as the title of the said chapter clearly indicates that the provisions grouped thereunder are for the attachment and forfeiture of either proceeds of terrorism, or property intended to be used for terrorism”, the plea added.

Furthermore, the plea stated that the impugned order violated the right of the Appellant under Article 21 by ordering the attachment of a property partly owned by the Appellant without the said property having any linkage with the case at hand.

It is to be noted, that Additional Sessions Judge (ASJ) Shailender Malik of the Patiala House Court in Delhi recently ordered the attachment of the All Parties Hurriyat Conference (APHC) office in Srinagar in a UAPA case being investigated by the NIA against Khan. “The immovable property i.e. building office of All Parties Hurriyat Conference (APHC) situated at Raj Bagh, Srinagar which was earlier used as an office of APHC is ordered to be attached. Necessary legal process be carried out in this regard”, the court had said.

As per NIA, Khan was involved in a larger criminal conspiracy to cause disruption in the Kashmir valley by "pelting stones on security forces, systematically burning schools, causing damage to public property, and waging war against India."

Khan, who has been in judicial custody since August 14, 2017, has been accused of “creating unrest” in the Kashmir valley by the NIA. He was arrested on July 24, 2017. He has been registered under Sections 120B, 121, 121A, and 124A of the Indian Penal Code and Sections 13, 16, 17, 18, 20, 39, and 40 of the Unlawful Activities Prevention Act, of 1967.

Case Title: Nayeem Ahmad Khan v. NIA

Statue: The Unlawful Activities Prevention Act, The Indian Penal Code, and The Code of Criminal Procedure