Jammu & Kashmir and Ladakh High Court: The present appeal was filed under Section 21 of the National Investigation Agency Act, 2008 (‘NIA Act’) against the order dated 25-01-2025, passed by the Special Judge (UAPA), Anantnag (‘Special Court’), whereby the application for the release of vehicle seized in connection with a terrorist related activity was dismissed. The Division Bench of Sindhu Sharma and Shahzad Azeem*, JJ., while dismissing the appeal, held that if a statutory remedy was available under the UAPA, the accused could not bypass it to invoke the jurisdiction of the High Court under Section 21 of the NIA Act.
Background:
A joint surprise check was established by Srigufwara Police Station and 3rd RR Nafri camp Sirhama on 27-11-2023, in the wake of inputs received from reliable sources regarding the movement of terrorists. During the naka duty, the movement of both the accused persons, in suspicious circumstances was observed, but on sensing the presence of the naka party, they attempted to flee from the spot. The naka party nabbed the accused and on questioning, they disclosed their identity. During their spot personal search, 90 live rounds of AK 47 and one live hand grenade were recovered. It also came fore that both the accused had allegiance with the banned terrorist outfit, Lashker-e-Toiba (TRF), and have been actively involved in terrorism related activities.
A formal case was registered under Sections 7 and 25 of the Arms Act, 1959, read with Sections 13, 16 and 18-B of the Unlawful Activities (Prevention) Act, 1967 (‘UAPA’) and Section 3 of the Explosive Substances Act, 1908. From the material collected during investigation, one load carrier used in the terrorist related activities by the accused was also seized and the matter was taken up with the Police Headquarters regarding retention of the same under Section 25 of the UAPA. Thereafter, an application was moved before the Special Court for the release of the said vehicle, but the Special Court, while dismissing the application, concluded that the matter was still pending with the Designated Authority and, after the final decision of the Designated Authority, if there remained any grievance of the applicant, he could avail the remedy under Section 25(6) of the UAPA.
The accused submitted that the vehicle was purchased on loan and was the only means of sustenance of the accused’s family and it would be damaged beyond repairs if not released. It was also submitted that the vehicle was never used for any terrorist related activities. Further, the accused’s counsel contended that the requirement of prior approval for seizing the vehicle as stipulated in Section 25 of the UAPA was not followed, and therefore, the entire proceedings were vitiated under law. However, the respondent opposed the appeal stating that the vehicle was used for transportation of arms and ammunition to carry out terrorist related activities and it was seized after observing all the formalities. It was urged that the Director General of Police had already given the necessary approval in terms of Section 25 of the UAPA vide a speaking order dated 05-06-2024.
Analysis and Decision:
The Court noted that there was a complete mechanism provided under the UAPA 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 Court opined that once the statutory forum in the shape of Designated Authority, i.e., Divisional Commissioner, Kashmir, was made available to the accused, he could not be allowed to invoke the jurisdiction of the High Court under Section 21 of the NIA Act, so as to circumvent the statutory remedy.
The Court noted that a notice was issued to the accused aligning with the mandate of the proviso to Section 25(3) of the UAPA which envisaged that an opportunity of making a representation by the person whose property was being seized or attached should be given. Therefore, the accused had an efficacious and effective remedy available to take all these pleas before the Designated Authority, where the proceedings were already pending, but instead of responding to the notice issued by the Designated Authority, he filed an application for the release of vehicle, which was neither tenable nor permissible in view of the complete mechanism provided under Section 25 of the UAPA.
The Court also observed that the present appeal was not maintainable because Section 21 of the NIA Act provided 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 was trite law that an order rejecting the application for release of seized property was interlocutory in nature as it did not finally determine the rights of the parties.
The Court opined that if the accused’s plea was accepted, it would amount to usurping the jurisdiction and power vested in the Designated Authority, who had all the powers of a Civil Court under Section 31 of the UAPA for making full and fair enquiry into the matter before it. The Court further observed that under Section 30 of the UAPA, the Designated Authority had the jurisdiction to investigate the claim or the objection made on the ground that such property was not liable to seizure or attachment, therefore, a statutory right to lay a claim or raise objection regarding seizure of property before the Designated Authority might be defeated, if the appeal was entertained. The Court also pointed out that the application before the Special Court as well as present appeal was not filed by the registered owner of the seized vehicle.
Consequently, the Court, while dismissing the appeal, observed that the appeal under Section 21 of the NIA Act was not maintainable as there were an inbuilt mechanism and hierarchy provided under Section 25 of the UAPA, up to appeal before this Court under Section 28 of the UAPA.
[Yasir Ahmad Bhat v. State (UT of J&K), CrlA (D) No. 8 of 2025, decided on 19-09-2025]
*Judgment authored by: Justice Shahzad Azeem
Advocates who appeared in this case:
For the Accused: S. T. Hussain, Senior Advocate, Nida Nazir, Advocate.
For the Respondents: Mohsin-ul-Showkat Qadri, Sr. AAG , Nowbahar Khan, Assisting Counsel.
