SADIQ SARRAF Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners have filed this Habeas Corpus Petition praying therein that the custody of the petitioners be declared as illegal and they be set at liberty.

(2.) In the petition, the petitioners have pleaded that an FIR No.RC-41/2022/NIA/DLI dtd. 19/9/2022 was registered at Police Station, NIA, New Delhi under Ss. 120-B and 153-A of IPC and Ss. 13 and 18 of UA(P)A, 1967 is illegal and without any jurisdiction. The said FIR was registered after receipt of an order bearing number F.No.11011/83/2022/NIA dtd. 16/9/2022 from respondent No.1 i.e. under Secretary to the Ministry of Home Affairs, Union of India, which order was passed under Sec. 6(5) of the National Investigating Agency Act, 2008 (hereinafter referred to as "the NIA Act"). The petitioners were arrested in connection with the impugned FIR from Kerala where they were attending organizational meeting conducted by the Popular Front of India (hereinafter referred to as "the PFI").

(3.) It is contended by the counsel for the petitioners that the respondents had no statutory power or constitutional power to pass any order under Sec. 6(3) of the NIA Act as law and order is the State subject and the power conferred to the Union of India is under union list of Entry No.8 i.e. Central Intelligence Bureau and Investigation. It is also contended that the respondents have misconceived their power under non-obstante clause under Sec. 6(5) of the NIA Act, which only prevails over the scheduled offences. It is further contended that only direction to investigate can be given when an FIR is registered under Sec. 154 of Cr.P.C. and the National Investigating Agency had no jurisdiction to register an FIR at Delhi. It is also argued that it is only the State that can notify a Police Station under the provisions of Cr.P.C. and the NIA had no jurisdiction to register an FIR at Delhi.