Delhi High Court: In an appeal under Section 21, National Investigation Agency Act, 2008 challenging the orders extending the period of investigation and custody and rejecting default bail in a case registered under the Unlawful Activities (Prevention) Act, 1967 (UAPA), a Division Bench of Prathiba M. Singh* and Vikas Mahajan, JJ., held that the reference to Section 167, Criminal Procedure Code, 1973 (CrPC) in Section 43-D(2) UAPA is to be construed as a reference to the corresponding provision, Section 187, Nagarik Suraksha Sanhita, 2023 (BNSS), by virtue of Section 8(1), General Clauses Act, 1897. The Court further held that the first proviso to Section 43-D(2) UAPA continues to permit extension of the detention period up to 180 days, and an accused in a UAPA case is not entitled to default bail merely upon expiry of 90 days.
Background
The present appeal arises out of the 10 November 2025 explosion at Gate No. 4 of Lal Qila Metro Station, Delhi, allegedly caused by a vehicle-borne improvised explosive device. The incident initially led to the registration of FIR No. 1049/2025 at P.S. Kotwali, which was subsequently re-registered by the National Investigation Agency (NIA). The case involved offences under the BNS, UAPA, and the Explosive Substances Act, 1908. The alleged principal accused, Dr Umer Un Nabi, died in the incident.
The appellant, was arrested by the NIA on 17 November 2025. He was initially granted police custody for a total of 24 days, followed by judicial custody. During the course of investigation, the NIA again obtained police custody of the appellant for a short period in January 2026. Thereafter, the appellant remained in custody pending completion of the investigation.
On 10 February 2026, the NIA sought extension of the investigation and custody period beyond the ordinary statutory period of 90 days, invoking Section 43-D(2) UAPA read with Section 187 BNSS. By order dated 13 February 2026, the trial court granted a first extension of 45 days, taking the period of permissible custody to 135 days. The appellant thereafter sought default bail under Section 187(3) BNSS.
The NIA subsequently sought a further extension of 45 days, taking the total period to 180 days. This second extension was allowed by the trial court on 27 March 2026. On 30 March 2026, the appellant’s application for default bail was rejected. The appellant challenged all 3 orders before the Delhi High Court under Section 21, National Investigation Agency Act, 2008.
The principal legal issue in the appeal concerns the interplay between Section 43-D UAPA, Section 167 CrPC and Section 187 BNSS. The appellant contends that since Section 43-D(2) UAPA continues to refer to Section 167 CrPC, while the BNSS has since replaced the CrPC, the applicable provision for default bail is Section 187 BNSS, under which the statutory period is ordinarily 90 days. The question, therefore, is whether the extended 180-day custody period available under Section 43-D(2)(b) UAPA continues to operate after the enactment of the BNSS.
During the pendency of the appeal, the NIA filed the charge-sheet on 14 May 2026. The appeal consequently seeks examination of the legality of the orders granting the 2 extensions of custody and rejecting the appellant’s claim for default bail.
Issues for Consideration
- Whether after enactment of Section 187 BNSS, the first proviso to Section 43-D(2) UAPA which extends the period of investigation to 180 days would be applicable or not.
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Whether, after enactment of BNSS, an accused person in a UAPA case would be entitled to default bail after 90 days or after 180 days.
Analysis and Decision
A. Interplay between Section 43-D UAPA and Section 167 CrPC
The Court noted that Section 167 CrPC permits detention of an accused for a maximum period of 90 days where the offence is punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, and 60 days in other cases. Upon expiry of the prescribed period, the accused becomes entitled to be released on bail, subject to the statutory conditions. Police custody under Section 167 is ordinarily restricted to a maximum period of 15 days.
The Court observed that, when Section 167 CrPC was adapted to the UAPA, it was specifically modified by Section 43-D(2). The period of 15 days, 60 days and 90 days under Section 167 was modified to 30 days, 90 days and 90 days, respectively. Further, the first proviso to Section 43-D(2)(b) permits the period of detention to be extended from 90 days to 180 days, subject to the satisfaction of the statutory requirements.
The Court further noted that the interplay between Section 43-D UAPA and Section 167 CrPC had earlier been considered by a coordinate Bench of the Delhi High Court in Syed Shahid Yousuf v. NIA, 2018 SCC OnLine Del 9329. The position under the erstwhile CrPC regime was clear that, in cases involving offences under the UAPA, the period for which an accused could be detained before becoming entitled to default bail could extend from 90 days to 180 days, where the statutory requirements for such extension were satisfied.
Thus, the Court held that under the older regime of the CrPC, as applicable to the UAPA, the maximum period relevant for default bail was 180 days, and the extension of the detention period from 90 days to 180 days for offences under the UAPA stood fully recognised in law.
B. Repeal of CrPC and enactment of BNSS
The Court noted that the BNSS was enacted in 2023 and came into operation from 1 July 2024, replacing the CrPC, subject to the repeal and savings provision contained in Section 531 BNSS. The equivalent provision under the BNSS for seeking extension of detention is Section 187, which prescribes slightly different time periods from Section 167 CrPC.
The Court observed that the fundamental distinction between Section 167 CrPC and Section 187 BNSS lies in the manner in which the period of 15 days of police custody can be availed. Under Section 187, the 15 days of police custody may be granted either in whole or in parts during the initial 40 days or 60 days, as the case may be. Thus, police custody can be sought for 3 days, 4 days, 10 days or 15 days during the permissible period. However, the maximum period of police custody remains 15 days.
The Court further observed that under Section 187(3) BNSS, the maximum period of detention is 90 days in cases involving offences punishable with death, imprisonment for life or imprisonment for a term of 10 years or more, and 60 days in other cases. Upon expiry of the said period, the accused becomes entitled to default bail. However, the Court clarified that the present issue does not relate to the manner in which the 15 days of police custody may be availed.
The crucial issue before the Court arose from the fact that, upon enactment of the BNSS, the CrPC stood repealed, whereas Section 43-D UAPA was not correspondingly amended to substitute Section 187 BNSS for Section 167 CrPC. Section 43-D continues to retain the reference to Section 167 CrPC.
The appellant relied upon this omission and contended that, since Section 43-D UAPA does not incorporate Section 187 BNSS, the 90-day period prescribed under Section 187 would govern his entitlement to default bail. The Court, therefore, proceeded to examine whether the continued reference to Section 167 in Section 43-D UAPA, notwithstanding the repeal of the CrPC, would preserve the extended period of 180 days applicable to UAPA offences.
C. Whether Section 187 BNSS can be read into Section 43-D(2) UAPA or not?
The Court held that Section 8(1), General Clauses Act, 1897 applies where a statute merely refers to a provision of a repealed enactment. Such a reference is to be construed as a reference to the corresponding provision in the re-enacted law, unless a different intention appears.
The Court distinguished “legislation by reference” from “legislation by incorporation”. Since Section 167 CrPC was not bodily lifted into Section 43-D(2) UAPA, but was merely referred to with certain modifications in the prescribed periods, the provision amounted to legislation by reference. Consequently, the reference to Section 167 CrPC in Section 43-D(2) has to be construed as a reference to Section 187 BNSS.
The Court further held that there was no different intention discernible from the BNSS which would exclude the operation of the first proviso to Section 43-D(2) UAPA. The BNSS only made certain modifications regarding the manner in which 15 days of police custody could be availed; it did not alter the special scheme under the UAPA permitting extension of the detention period up to 180 days.
Emphasising the legislative intent, the Court observed that the UAPA, being a special law, provides for a longer period of detention in respect of heinous offences such as terrorism. The enactment of the BNSS could not defeat this legislative intent. The special law, i.e., UAPA, would prevail over the general law, i.e., BNSS, in respect of matters specifically dealt with by the UAPA.
Accordingly, the Court held that the appellant was not entitled to default bail after 90 days merely because Section 43-D(2) UAPA does not expressly refer to Section 187 BNSS. The reference to Section 167 CrPC in Section 43-D(2) is to be construed as a reference to Section 187 BNSS under Section 8(1), General Clauses Act, 1897, and the first proviso to Section 43-D(2) continues to permit extension of the detention period up to 180 days.
D. Belated challenge to the orders granting extension
The NIA had challenged the maintainability of the appeal, contending that the appellant could not challenge the extension orders dated 13 February 2026 and 27 March 2026 belatedly, after dismissal of his default bail application.
The Court noted that the first extension dated 13 February 2026 was not challenged at the relevant stage. The appellant challenged it only after the second extension was granted and his default bail application was dismissed.
Relying upon the Supreme Court’s decision in State of Uttarakhand v. Javed Siddiqui, 2026 SCC OnLine SC 1613, the Court held that where an accused does not promptly challenge an order granting extension of time, the right to seek default bail is lost by acquiescence. Accordingly, the first extension order dated 13 February 2026 had attained finality, and the appellant, having acquiesced in the said order, lost the right to subsequently challenge it and seek default bail on the basis thereof.
E. Report of the Public Prosecutor
The appellant contended that his right to defence was severely violated as the reports of the public prosecutor, filed along with the NIA’s applications seeking extension of the investigation and custody period, were not furnished to him and were placed before the trial court in a sealed cover.
The Court rejected the contention, observing that it is a settled position in law that an accused is not entitled to copies of the public prosecutor’s report at the stage when extension of time is being sought by the investigating agency. Relying upon Zeeshan Qamar v. State (NCT of Delhi), 2023 SCC OnLine Del 1114, the Court held that the trial court was correct in declining to furnish the reports to the appellant.
Decision
The Court noted that, by the time the appeal was filed, all 3 orders granting the first extension, granting the second extension and rejecting the application for default bail had already been passed. Further, the charge-sheet had been filed on 14 May 2026.
Accordingly, the Court held that the appellant could no longer contend that he was entitled to default bail upon expiry of 90 days. In the Court’s view, “that ship has sailed”, and the challenge to default bail could not succeed at this stage. The Court, however, clarified that although the appellant was not entitled to default bail, he remained free to avail of any other remedies available to him in accordance with law.
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[Jasir Bilal Wani v. NIA, 2026 SCC OnLine Del 6208, decided on 18-8-2026]
*Judgement authored by: Justice Prathiba M. Singh
Advocates who appeared in this case:
For the Appellant: Warisha Farasat, Sr. Adv. with Suvarna Swain, Advocate
For the Respondent: Madhav Khurana, Sr. Adv. with Trisha Mittal, Anil Dabas, Teeksh Singhal, Deeparghya Datta and Nishant Sharma, Advocates with Dr. Navneet Sharma CIO for NIA
