Mohammed Asarudeen vs Union of India & Ors.

2 of s.44 for all witnesses or a number of witnesses – Even if an application is made in respect of more than one witness, specific averments in relation to every witness must be made in the application – In view of this Court, sub-section 2 of s.44 of the UAPA (sub-section 2 of s.17 of NIA) must be strictly complied with, as the exercise of the power may affect the right of the accused to defend – On facts, the Special Court was dealing with an application where the prayer under sub-section 2 of s.44 of UAPA was made in respect of a large number of witnesses – The Special Court has not considered the case of each witness separately regarding the possible dangers to their lives – The Court has also not recorded satisfaction based on material that the life of a particular witness is in danger – A very general observation has been made that, in the interests of justice, the Court feels that the identity of the witnesses can be hidden till the examination in chief of the witnesses is recorded – The order of the Special Court cannot be sustained – The first satisfaction, which is required to be recorded in terms of sub-section 2 of s.44 of UAPA, has not been recorded – Similarly, the observation of the High Court completely ignores the second part of sub-section 2 of s.44 of the UAPA – Both the Courts have lost sight of the fact that the satisfaction as required by sub-section 2 of s.44 of UAPA has to be recorded qua an individual witness – Therefore, both the orders are set aside. [Paras 11, 12, 14]

Unlawful Activities (Prevention) Act, 1967 – Sub-section 2 of s.44 – Recording of satisfaction:

Held: The first condition precedent for the exercise of powers under sub-section 2 of s.44 of UAPA is the recording of the satisfaction by the Special Court that the life of the concerned witness is in danger – This satisfaction must be recorded based on the material available before the Special Court – The extent and the nature of the material required to record such satisfaction will depend upon the facts and circumstances of each case – Since sub-section 2 of s.44 of the UAPA is an exception to the general rule, the condition precedent for the exercise of power of recording a clear satisfaction based on material as stated must be complied with – After recording the satisfaction, the second stage comes into play – It is not that in every case that after such satisfaction is recorded, the Court can pass an order prohibiting the prosecution from providing a copy of the entire statement of the prosecution witnesses till the conclusion of the trial – The Court has to apply its mind considering the material on record, what kind of measures should be adopted for keeping the identity and address of such a witness, secret – While deciding what kind of measures should be adopted, the Court must record brief reasons. [Paras 9, 10] Unlawful Activities (Prevention) Act, 1967 – ss.44 – National Investigation Agency Act, 2008 – s.17 – Witness Protection Scheme, 2018 – cl.2(c) – It was contended by the State that when application under sub-section 2 of s.44 of the UAPA or sub-section 2 of s.17 of NIA is heard by the Special Court, the accused have no right of hearing – Correctness: Held: On the face of it, sub-section 2 of s.44 of UAPA and sub-section 2 of s.17 of the NIA Act does not exclude the principles of natural justice – The accused has a right of hearing on the application under sub-section 2 of s.44 of the UAPA, but obviously, till orders are passed by the Court on the application and subject to such orders, the accused is not entitled to know the identity of the witnesses in respect of whom the application is made – If, during the pendency of the application, the identity of the witness is disclosed in any manner, the very purpose of the power conferred on sub-section 2 of s.44 of the UAPA will be lost. [Para 21]