2004 (7) TMI 640 - SC - Indian Laws

During what period prayer for police custody can be made? What is scope and ambit of Section 49(2) of the Prevention of Terrorism Act, 2002 (in short the POTA )?

Summary

Issues Involved:
1. Interpretation of Section 49(2) of the Prevention of Terrorism Act, 2002 (POTA).
2. Application of Section 167 of the Code of Criminal Procedure, 1973 (CrPC) in the context of POTA.
3. Determination of the permissible period for police custody under POTA.

Issue-wise Detailed Analysis:

1. Interpretation of Section 49(2) of POTA:
The primary issue in this appeal revolves around the interpretation of Section 49(2) of POTA, specifically regarding the period during which police custody can be requested. The appellant argued that Section 49(2) does not grant unlimited power to the investigating agency to seek police custody, suggesting that it should be harmonized with Section 167 of the CrPC to restrict police custody to a maximum of 30 days. The appellant emphasized that extending police custody beyond this period would contradict the legislative intent and statutory limits set by Section 167 of the CrPC.

2. Application of Section 167 of CrPC in the context of POTA:
The court examined the provisions of Section 167(2) of the CrPC, which allows a magistrate to authorize the detention of an accused in police custody for a term not exceeding 15 days in the whole. The appellant argued that the reference to "fifteen days" in Section 167(2) of the CrPC is substituted with "thirty days" in Section 49(2)(a) of POTA, implying that police custody under POTA should also be limited to 30 days. The respondents countered that such an interpretation would render the second proviso to Section 49(2)(b) redundant, as it would prevent the investigating officer from seeking police custody beyond 30 days, even if the accused is in judicial custody.

3. Determination of the permissible period for police custody under POTA:
The court analyzed the statutory language and legislative intent behind Section 49(2) of POTA. It noted that the proviso inserted by Section 49(2)(b) of POTA is in relation to the proviso to Section 167(2) of the CrPC and not the main section itself. The court emphasized that the acceptance of an application for police custody when an accused is in judicial custody is not automatic and requires the investigating officer to file an affidavit justifying the need for such custody. The Special Judge must consider the application in accordance with the law and the purpose for which POTA was enacted.

The court concluded that the interpretation suggested by the appellant, which limits police custody to 30 days, cannot be accepted. The provision in Section 49(2)(b) of POTA includes inbuilt safeguards against misuse by mandating the filing of an affidavit and providing reasons for any delay in requesting police custody. The court dismissed the appeal, stating that the apprehension of misuse of the provision is unfounded and cannot be a ground to extend the meaning of the provision as suggested by the appellant.

Conclusion:
The court held that Section 49(2) of POTA allows for police custody beyond 30 days, provided the investigating officer justifies the need through an affidavit and the Special Judge considers the application in accordance with the law. The appeal was dismissed, affirming the legality of the order passed by the Special Judge and the High Court of Gujarat.