Lawyers Institute for Empowerment recently held an interactive online class with Advocate S. Balan on Effective Handling of UAPA and NIA Cases.

During the session, Criminal Advocate S. Balan spoke at length on the various facets of the draconian laws- Unlawful Activities Prevention Act (UAPA) and the National Investigation Agency Act.  

Focusing on the structure, scheme and scope of UAPA, Criminal Adv. S Balan lists the Act’s extremely wide scope as the first issue.

When the scheme and structure of the Act is taken into consideration, anyone can be implicated in these draconian laws.

Describing the four major categories under the Act, i.e., a terrorist organisation, terrorist gang, unlawful activity and unlawful association, Criminal Adv S Balan points out the vagueness of the definitions. For instance, the term ‘terrorism’ finds no definition under the Act, even with the presence of terms such as ‘terrorist organisation’ and ‘terrorist gang’. Further, ‘terrorist gang’ itself is a vague term in the Act.

Taking into account the scheme and structure of the Act, Adv. S Balan comments on the difficulties faced by the defence in such cases. Contrary to the strict commission of an offence, UAPA also takes into consideration the aspect of intention. 

There is a wide gap between the presumption of innocence and presumption of guilt…The usage of the term ‘intended’ [in the sections of the Act], need not commit an act; mere intention to commit an offence is punishable for life.

He further stated that “UAPA vis-à-vis NIA Act is more dangerous than POTA, TADA, or any other draconian law” and the fact that “no defence or fundamental rights are given under UAPA and NIA Act.

Drawing the link between UAPA and NIA Act, he refers to UAPA as the Act providing definitions and provisions while the NIA Act sets forth the procedural aspect. It was pointed out that under the NIA Act, one cannot challenge an interlocutory order due to the absence of supervisory power or jurisdiction.

On the issue of the jurisdiction under NIA, Adv. S Balan explained the following:

With the Criminal Amendment Act of 2019, the term Courts ‘constituted’ was substituted by Courts ‘designated’ under the NIA Act. A designated court is a deemed Sessions Court…So the question arises- whether offences investigated by NIA or other agency should go before Sessions Court or Designated Court? … According to S.13 of the NIA Act, the expression ‘investigated by ‘the Agency’’ refers to the matter being tried before the ‘Designated Court’.

Citing confession, conspiracy, PCB (Printed Circuit Board), digital evidence, collection of arms, logistics, money, shelter, transactions, etc. as the primary sources of evidence tailored and used by the investing agency, Adv. S Balan focuses on the defence. Considering the piling issues for the defence, Adv. S Balan advises focusing on the sanctions provided under UAPA: “As the defence, hitting the case on sanction is very important.”

A one-man army, a defence counsel should be completely equipped. He should go to all the spots, make a thorough enquiry and cross-examine.” – Criminal Advocate S Balan.

Adv. S Balan focuses on the two major components of ‘sanctions’ under S.45(2) of UAPA: 

  • independent review committee
  • placing all the materials before the sanctioning authority

Commenting on the importance of sanctions, he states the following:

On the mechanical granting of sanctions, the entire proceeding vitiates…Sanctioning is very important: If sanctioning authority grants sanction without the Independent Review Committee reviewing it, the entire proceeding gets vitiated… If it can be established that the sanctioning was awarded without judicial application of mind, without appreciating all the materials placed before sanctioning authority, there are chances of moving a discharge application at that stage.

Since the attainment of anticipatory bail is cancelled out due to the provisions of the Act, a question arises: when the charge is filed or charges are framed, can an application for discharge be moved? To which Adv. S Balan replies, “once it can be proved that the sanction is invalid, an application for discharge can be moved.”

Following this, 3 important aspects of digital evidence are focused upon:

“The three phases of digital evidence are:

  1. Collection including storage and transportation; identification of evidence collected based on the 5W’s and 1H- what is collected, why it was collected, who collected it, when it was collected, where it was collected and how it was collected.
  2. Examination
  3. Presentation

Furthermore, he states the importance of being thorough with the law with a special focus on the following provisions:

  • The Indian Evidence Act, 1872– Section 3 (Interpretation Clause), Section 45A (Opinion of Examiner of Electronic Evidence), Section 65A (Special provisions as to evidence relating to electronic record) and 65B (Admissibility of electronic records).
  • Code of Criminal Procedure, 1974– Section 165 (Search by police officer), Section 173 (5) (Report of police officer on completion of investigation) and Section 207 (5) (Supply to the accused of copy of police report and other documents).
  • Information technology Act, 2000– Sections 2(o) (data) and 2(t) (electronic record).

The session was concluded by a QnA session and the following questions were answered:

  1. When 6 months (180 days are over), can an application be filed under s.167(2) for mandatory bail?
  2. The right of an individual under s.167 remains and on completion of 180 days, an accused is entitled to mandatory bail. 
  3. Can an appeal be filed under a Division bench for an interlocutory order?
  4. No appeal can be filed for an interlocutory order. An application can be filed under Article 227 instead. Therefore, the defence counsel should be able to make the designated judge pass an order on every question so that it can be taken to the appellate stage.