IN THE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION NO. 110 OF 2023

(Against the final judgment and order dated 27.12.2023

passed by the Hon’ble Delhi High Court in Writ Petition

Criminal No. 110/2023)

IN THE MATTER OF:

AQIL HUSSAIN …PETITIONER

VERSUS

STATE OF N.C.T. OF DELHI & ORS …RESPONDENTS

INDEX

SR. NO. PARTICULARS PAGE NO.

1. NOTICE OF MOTION 1

2. MEMO OF PARTIES 3-4

3. SYNOPSIS WITH LIST OF DATES 5-7

4. APPEAL UNDER ARTICLE 136 OF THE 8-23

CONSTITUTION OF INDIA AGAINST THE
FINAL JUDGMENT AND ORDER DATED
27.12.2023 PASSED BY THE HON’BLE DELHI
HIGH COURT IN WRIT PETITION CRIMINAL
NO. 110/2023
 FILED BY :-

AKANKSHA DHYANI
ADVOCATE
COUNSEL
FOR APPLICANTS C–66,
SECOND FLOOR,
NIZAMUDDIN EAST,
NEW DELHI–
110013 PH. NO.704
C–66, SECOND257 6236
FLOOR,
PLACE: NEW DELHI EMAIL: [email protected]
NIZAMUDDIN EAST,
DATED: 30.12.2023 NEW DELHI–110013
PH. 7042576236/9811023019
EMAIL: [email protected]

COUNSEL FOR THE PETITIONER

C–66, SECOND FLOOR,
PH. NIZAMUDDIN EAST,
7042576236/98110230 NEW DELHI–110013
19
EMAIL:
[email protected]
 3

IN THE SUPEREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION NO. 110 OF 2023

IN THE MATTER OF:

AQIL HUSSAIN …PETITIONER

VERSUS

STATE OF N.C.T. OF DELHI & ORS …RESPONDENTS

MEMO OF PARTIES
IN THE MATTER OF:
AQIL HUSSAIN,
S/O SHRI TASNEEF HUSSAIN,
BROTHER OF MS. GULFISHA
FATIMA R/O C-927 STREET NO 5,
CHAUHAN BANGAR
NEW SEELAMPUR
DELHI 110053 …PETITIONER
VERSUS
1. STATE OF NCT OF DELHI
THROUGH ITS SECRETARY
I.P. ESTATE, NEW DELHI …RESPONDENT NO.1

2. THE COMMISSIONER OF DELHI POLICE

DELHI POLICE HEADQUARTERS
I.P. ESTATE, ITO,
NEW DELHI …RESPONDENT NO. 2

3. THE DEPUTY COMMISSIONER OF POLICE

CRIME BRANCH, DELHI POLICE
DELHI POLICE
HEADQUARTERS
I.P. ESTATE, ITO,
NEW DELHI …RESPONDENT NO. 3

4. THE DEPUTY COMMISSIONER OF POLICE

SPECIAL CELL, DELHI POLICE
DELHI POLICE
HEADQUARTERS
I.P. ESTATE, ITO,
NEW DELHI …RESPONDENT NO. 4
 4

5. THE DIRECTOR GENERAL OF PRISONS

TIHAR CENTRAL JAIL,
TIHAR JAIL, NEW
DELHI,
DELHI 110058 …RESPONDENT NO. 5

6. STATION HOUSE OFFICER

P.S. JAFRABAD …RESPONDENT NO. 6
FILED BY
AKANKSHA DHYANI
ADVOCATE
COUNSEL FOR THE PETITIONER
C–66, SECOND FLOOR,
NIZAMUDDIN EAST,
NEW DELHI–110013
PH. 7042576236/9811023019
EMAIL: [email protected]
PLACE: NEW DELHI
DATED: 30.12.2023
 5

SYNOPSIS

The sister of the Petitioner was arrested by the local

police from P.S. Jafrabad on 09.12.2023, whereafter the

family was contacted by various persons claiming to be

officials from the Special Cell, Delhi Police. Initially, no

details as to the charges and the F.I.R. against the sister

of the Petitioner were provided, and only contact

between the family and the detainee was through phone

calls facilitated by the officials in whose custody she was.

Upon being informed of the F.I.R. details, the sister of the

Petitioner moved for bail before the Ld. Duty Magistrate.

During the adjudication of the Bail Application, the Ld.

Duty Magistrate as well as the detainee were informed

that charges were pending against her in another F.I.R.,

where provisions under the Unlawful Activities

Prevention Act had been invoked. The Ld. Duty

Magistrate was thereafter pleased to dismiss the bail

application.

The detainee then approached the court of the Ld.

Sessions Judge on duty during the lockdown period, who

was pleased to grant bail to the Petitioner in the first

F.I.R. Nevertheless, due to the charges against the

detainee in the second F.I.R., she has not been released.

 6

The Petitioner is moving this Hon’ble Court because due

to the invocation of charges under the UAPA against his

sister, it is only a Special Court constituted and

empowered under the National Investigation Agency Act

which can extend her custody. The Special Courts have

not been functioning due to the suspension of normal

court functioning due to administration protest.

Consequently, the custody of the sister of the Petitioner is

without authority of law, and illegal. Petition was filed

before the Hon’ble High Court of Delhi on 25/02/23

which was dismissed thereof by order dated 27/02/23.

LIST OF DATES AND EVENTS

09.12.2023 Sister of the Petitioner is arrested in

connection with F.I.R. No. 480 of 2023

registered at P.S. Jafrabad under various

provisions of the Indian Penal Code.

11.12.2023 Detainee approaches the Ld. Duty M.M.

for grant of regular bail in F.I.R. No. 48 of

2020. During the adjudication of the

Application, the Ld. Duty M.M. and the

detainee are informed that charges under

another F.I.R. No. 590 of 2023 being

investigated by the Crime Branch, Delhi

Police, are pending, which include

 7

charges under the Unlawful Activities

Prevention Act have been invoked.

15.12.2023 Ld. Duty M.M. dismisses the bail

application of the detainee in F.I.R. No.

480 of 2023.

18.12.2023 Detainee moves for bail before the Ld.

Sessions Judge on Duty in F.I.R. No. 480

of 2023.

23.12.2023 Ld. Sessions Judge is pleased to grant

bail to the detainee in F.I.R. No. 480

of 2023.

24.12.2023 Detainee is still in custody due to charges

pending in F.I.R. No. 590 of 2023, P.S.

Crime Branch. Due to invocation of

charges under the UAPA, only a Special

Court constituted and empowered under

the NIA Act can remand the Detainee to

custody. As Special Courts are not sitting

due to Administrative protest; custody of

the Detainee is without authority of law

and illegal.

25.12.2023 Writ Petition before Delhi High Court

27.12.2023 Petition dismissed vide order dated 27-02-

2023 by Hon’ble Delhi High Court.
30.12.2023 Hence, this present Appeal
 8

IN THE SUPEREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION NO. 110 OF 2023

IN THE MATTER OF:

AQIL HUSSAIN,
S/O SHRI TASNEEF HUSSAIN,
BROTHER OF MS. GULFISHA
FATIMA R/O C-927 STREET NO 5,
CHAUHAN BANGAR
NEW SEELAMPUR
DELHI 110053 …PETITIONER
VERSUS
1. STATE OF NCT OF DELHI
THROUGH ITS SECRETARY
I.P. ESTATE, NEW DELHI …RESPONDENT NO.1
2. THE COMMISSIONER OF DELHI POLICE
DELHI POLICE HEADQUARTERS
I.P. ESTATE, ITO,
NEW DELHI …RESPONDENT NO. 2

3. THE DEPUTY COMMISSIONER OF POLICE

CRIME BRANCH, DELHI POLICE
DELHI POLICE
HEADQUARTERS
I.P. ESTATE, ITO,
NEW DELHI …RESPONDENT NO. 3

4. THE DEPUTY COMMISSIONER OF POLICE

SPECIAL CELL, DELHI POLICE
DELHI POLICE
HEADQUARTERS
I.P. ESTATE, ITO,
NEW DELHI …RESPONDENT NO. 4

5. THE DIRECTOR GENERAL OF PRISONS

TIHAR CENTRAL JAIL,
TIHAR JAIL, NEW
DELHI,
DELHI 110058 …RESPONDENT NO. 5

6. STATION HOUSE OFFICER

P.S. JAFRABAD …RESPONDENT NO. 6
SPECIAL LEAVE PETITION UNDER ARTICLE
136 OF THE CONSTITUTION OF INDIA
against the final judgment and order dated
27.12.2023 passed by the Hon’ble Delhi
High Court in Writ Petition Criminal No.
110/2023
 9

TO
THE HON’BLE CHIEF JUSTICE AND
HIS HON’BLE COMPANION
JUSTICES OF HON’BLE SUPREME
COURT
THE HUMBLE APPEAL OF THE
PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHOWETH:

1. That the Petitioner is compelled to approach this

Hon’ble Court by way of the present Appeal under

Article 136 of the Constitution of India against the

final judgment and order dated 27.12.2023 passed

by the Hon’ble Delhi High Court in Writ Petition

Criminal No. 110/2023.

2. The sister of the petitioner has been kept in illegal

custody/ detention by the Respondents. The sister

of the petitioner was arrested on 09.12.2023 in

connection with F.I.R. No. 480 of 2023 registered

under sections 147/186/188/283/353/109/34

IPC, 1860 at P.S. Jafrabad. It may be noted that the

sister of the Petitioner has clean antecedents and

no criminal
 10

record, and neither has any illegal activity ever been

imputed to her or otherwise reported or even

alleged.

That the brief facts leading to filing of the present

petition are as follows:

a. That the Petitioner is a citizen of India. He has

deep roots in the NCT of Delhi. The Petitioner is

about 25 years of age and is a permanent

resident of House No.C-927, Street No.5,

Chauhan Bangar, New Seelampur, Delhi-110053.

b. That the sister of the petitioner is very dedicated

and committed towards her social and family

responsibilities and had a healthy relationship

with her family, besides being an upstanding

member of the community. The Petitioner and his

sister are both staunch nationalists and belong to

a family of freedom fighters. The sister of the

Petitioner is further an activist for

constitutionalism and ideals of Baba Saheb Dr.

B.R. Ambedkar.
 11

c. That on 09.12.2023 the sister of the Petitioner

was arrested by officials of the Delhi Police in

connection with the aforementioned F.I.R. No.

480 of 2023, P.S. Jafrabad.

d. That the Petitioner and his family were repeatedly

contacted by persons purporting to be officials of

the Special Cell, Delhi Police, in relation to the

arrest of the sister of the Petitioner. Initially, no

details were provided by any officials regarding

the charges against Ms. Gulfisha, the F.I.R.(s)

against her, and even as to where she was

lodged/held in custody.

e. That a bail application under Section 437 of the

Cr.P.C. filed by Ms. Gulfisha in F.I.R. No. 480 of

2023 registered under sections 147/186/188/

283/353/109/34 IPC, 1860 at P.S. Jafrabad was

dismissed by the Ld. Metropolitan Magistrate/

Duty M.M., Shahdara District, vide order dated

15.12.2023 on several grounds including that as

per the Investigating Officer in F.I.R. No. 480 of

2023, Ms. Gulfisha was involved in another

F.I.R., being F.I.R. No. 590 of 2023 registered

under sections 13/16/17/18 of the Unlawful

Activities (Prevention) Act, 1967 section 120B

 12

read with sections 302/307/353/186/

212/395/427/435/436/452/454/109/114/147

/148/124A/153A of the Indian Penal Code,

sections 3 & 4 of the Prevention of Damage to

Public Property Act, and sections 25/27 of the

Arms Act, and which is being investigated by the

Crime Branch. Aggrieved by the said order, Ms.

Gulfisha approached the court of the Ld. Sessions

Judge under Section 439 of the Cr.P.C. Vide order

dated 23.12.2023, the Ld. Sessions Judge,

Shahdara District, was pleased allow the bail

application of the Ms. Gulfisha in F.I.R. No. 480 of

2023, inter alia on the ground of parity.

 13

3. That even though the sister of the Petitioner Ms.

Gulfisha has been granted bail in F.I.R. No. 480 of

2023 registered under sections 147/186/188/

283/353/109/34 IPC, 1860 at P.S. Jafrabad, she

remains in custody due to the purported charges

lying against her in F.I.R. No. 590 of 2023 registered

under sections 13/16/17/18 UAPA, section 120B

read with sections 302/307/353/186/212/

395/427/435/436/452/454/109/114/147/148/1

24A/153A of the Indian Penal Code, sections 3 & 4

of the Prevention of Damage to Public Property Act,

and sections 25/27 of the Arms Act.

4. That it is submitted that Ms. Gulfisha, the sister of

the Petitioner, has been confined in custody in

F.I.R. No. 590 of 2023 even though the Special

Courts constituted under the National Investigation

Agency Act, 2008 (hereafter referred to as the NIA

Act) empowered to extend the judicial custody of

persons charged under any provisions of the UAPA,

including sections 13/16/17/18 invoked against

Ms. Gulfisha, have not been sitting since

23.03.2020, owing to the suspended functioning of

courts subordinate to this Hon’ble Court due to the

Administrative protest.
 14

5. That as the Special Courts empowered to extend the

judicial custody of Ms. Gulfisha have not been

sitting, the continued detention of Ms. Gulfisha in

F.I.R. No. 590 of 2023 is prima facie wholly without

any authority of law.

6. That as Ms. Gulfisha has been granted regular bail

in F.I.R. No. 480 of 2023 on 23.12.2023, and her

custody in F.I.R. No. 590 of 2023 being without any

authority of law, her continued detention is

illegal. This constitutes a deprivation of the liberty of

Ms. Gulfisha without due process, and therefore

violates her fundamental right to life and liberty

secured under Article 21 of the Constitution of

India.

7. That the Petitioner filed Writ Petition before Delhi

High Court and the same was dismissed thereof vide

Order dated 27-12-23.

 15

8. Being aggrieved by the actions of the Respondents

and in particular the illegal detention of the sister of

the Petitioner Ms. Gulfisha, the Petitioner is hereby

filing a Criminal Appeal via Special Leave Petition

under Article 136 of the Constitution.

9. That the Petitioner craves leave of this Hon’ble

Court to rely on other grounds at the time of

hearing/argument of the present appeal with the

kind permission of this Hon’ble Supreme Court.

10. That the Petitioner has not filed any other writ

petition or appeal either before this Hon’ble Court or

before the Hon’ble Supreme Court of India seeking

similar relief.

11. That the Petitioner has no other alternative and

efficacious remedy available besides filing of instant

petition.

Prayer:

It is, therefore, prayed that this Hon’ble Court be

graciously pleased to:

 16

a) to direct the concerned respondents to satisfy this

Hon’ble Court that the custody of the sister of the

Petitioner Ms. Gulfisha Fatima D/o Mr. T asneef

Hussain R/o C-927 Street No. 5, Chauhan Bangar,

New Seelampur, Delhi 110053, is not illegal and/or;

b) to direct the concerned respondents to immediately

release the sister of the Petitioner namely Ms.

Gulfisha Fatima D/o Mr. Tasneef Hussain R/o C-

927 Street No. 5, Chauhan Bangar, New Seelampur,

Delhi 110053;

c) Pass any other or further orders, as this Hon'b1e

Court may deem fit and proper in the circumstances

of the present case.

Petitioner

Through Counsel

AKANKSHA DHYANI
ADVOCATE
COUNSEL FOR THE PETITIONER
C–66, SECOND FLOOR,
NIZAMUDDIN EAST,
NEW DELHI–110013
PH. 7042576236/9811023019
EMAIL: [email protected]
PLACE: NEW DELHI
Dated: 25.12.2023
 17

IN THE SUPEREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION NO. 110 OF 2023

IN THE MATTER OF:

AQIL HUSSAIN …PETITIONER

VERSUS

STATE OF N.C.T. OF DELHI & ORS …RESPONDENTS

AFFIDAVIT

I, Aqil Hussain, s/o Taneef Hussain aged about 25

years, R/o C-927, Street No. 5 Chauhan Bangar, New

Seelampur, Delhi 110053, do hereby solemnly affirm

and declare as under :-

1. That I am Petitioner No. 1 in the above noted case &

being well conversant with the facts & circumstances of

the case am competent to swear the present affidavit.

2. That the accompanying Appeal under Article 136 of the

Constitution of India has been drafted by my counsel

under my instructions and I say that the averments

made therein are true on the basis of records.

3. That the contents of the list of dates are drafted by my

counsel are true to the best of my knowledge and are

derived from the records maintained by me. That the

contents of the affidavit have been drafted under my

instructions and have been read over to me in my

vernacular language.

DEPONENT