Supreme Court of India
Ankush Vipan Kapoor vs National Investigation Agency on 16 December, 2024
2024 INSC 986
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE/ORIGINAL JURISDICTION
SPECIAL LEAVE PETITION (CRIMINAL) NO.2819 OF 2024
ANKUSH VIPAN KAPOOR …PETITIONER
VERSUS
NATIONAL INVESTIGATION AGENCY …RESPONDENT
WITH
WRIT PETITION (CRIMINAL) NO.168 OF 2024
ANKUSH VIPAN KAPOOR …PETITIONER
VERSUS
UNION OF INDIA & ANOTHER …RESPONDENTS
JUDGMENT
NAGARATHNA, J.
The Writ Petition as well as the Special Leave Petition filed by
the very same petitioner raising similar questions of law and facts
have been heard together and are disposed of by this common
Signature Not Verified
Digitally signed by
judgment.
NEETU SACHDEVA
Date: 2024.12.16
16:41:13 IST
Reason:
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Factual Background:
2. Special Leave Petition (Crl.) No.2819 of 2024 has been filed by
the petitioner assailing the impugned order dated 29.01.2024
passed by the High Court of Punjab and Haryana in CRM-M
No.24743 of 2023 cancelling the bail granted to the petitioner vide
its Order dated 05.07.2021.
2.1 The National Investigation Agency (for short, “NIA”) filed CRM-
M No.24743 of 2023 before the Punjab and Haryana High Court
seeking cancellation of bail granted to the petitioner herein vide
order dated 05.07.2021 in CRM-M No.23889 of 2021 in case
bearing FIR No.20/2020 dated 29.01.2020 under Sections 21, 25,
27A, 29, 85 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short, “NDPS Act”) and Sections 30, 53, 59 of the Arms
Act, 1959 registered at Police Station Special Task Force (PS STF),
District STF Wing, SAS Nagar, Mohali, Punjab State. The aforesaid
FIR was registered against one Sukhbir Singh alias Happy on the
statement of AIG Rachpal Singh. During interrogation of the
aforesaid accused, the name of the petitioner surfaced. It was stated
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that the car in which he had been caught belonged to the petitioner-
accused and the car had been given to him for onward delivery to a
special person, code-named ‘Baba Jani’. On the same day, the
petitioner was arrested from his shop “R.C. Creations” at Crystal
Chowk, Amritsar. Pursuant to his disclosure statements, recovery
of, inter alia, narcotic substance-heroin was made and a second
recovery was made on 07.02.2020 and further recoveries were made
pursuant to disclosure statement dated 11.02.2020. FIR
No.23/2020 dated 31.01.2020 was registered under Sections 21,
25, 27A, 29 of NDPS Act at Police Station STF, District STF Wing,
Amritsar on the statement of Rashpal Singh AIG, STF Border Range,
Amritsar. On conclusion of the investigation in both the aforesaid
FIRs, final reports were presented before the courts of competent
jurisdiction.
2.2 CRM-M No.23889 of 2021 and CRM-M No.27365 of 2021 for
seeking grant of regular bail were allowed by the High Court by
orders dated 05.07.2021 and 21.09.2021 respectively and the
petitioner herein was released on bail.
Page 3 of 84
2.3 Even prior to the registration of the aforementioned FIRs,
another case bearing FIR No.01/2018 under Section 8(c), 21(c), 24,
25, 27A and 29 of the NDPS Act had already been registered on
12.08.2018 at Police Station Anti-Terrorist Squad (PS ATS),
Ahmedabad, Gujarat involving a criminal conspiracy by the
arrested accused therein, inter alia, including Sukhbir Singh alias
Happy (A-10). This FIR pertains to smuggling and distribution of
500 kgs of narcotics, which appears to have been illicitly
transported from Pakistan to Gujarat via the sea route.
2.4 Having regard to the seriousness and scale of the offences in
the aforementioned case registered in the State of Gujarat, the
Ministry of Home Affairs, Government of India, in exercise of its
powers under Sections 6 and 8 of the National Investigation
Agency, 2008 (for short, “NIA Act”) transferred the investigation of
the aforesaid case to NIA. Consequently, the NIA re-registered the
case as RC/26/2020/NIA/DLI dated 02.07.2020 under Sections
8(c), 21(c), 24, 25, 27A and 29 of the NDPS Act and Sections 17 and
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18 of the Unlawful Activities (Prevention) Act, 1967 (for short,
“UAPA”) and took over the investigation from ATS Gujarat.
2.5 During further investigation by NIA, it emerged that accused
Sukhbir Singh alias Happy had been arrested by STF Punjab in FIR
No.20/2020 dated 29.01.2020 under certain provision of the NDPS
Act and Arms Act, 1959 registered at PS STF, SAS Nagar, Mohali,
Punjab and after recovery being made, FIR No.23/2020 dated
30.01.2020 had been registered under certain provisions of the
NDPS Act at Police Station STF, District STF Wing, Amritsar,
Punjab. The NIA took custody of Sukhbir Singh alias Happy from
the NIA Special Court at Ahmedabad, Gujarat after being produced
by the Amritsar jail authorities in pursuance of production
warrants. During his custodial interrogation, accused Sukhbir
Singh alias Happy revealed the involvement of the petitioner herein
and his other close aides in the drugs syndicate involved in the
transportation, storage, purification, delivery and sale of drugs in
Amritsar.
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2.6 The petitioner herein moved an application for grant of
anticipatory bail before NIA Special Court at Ahmedabad, Gujarat
which was dismissed. The High Court vide order dated 26.09.2022
also dismissed his prayer for anticipatory bail. The NIA on
completion of investigation, submitted challan before the NIA
Special Court at Ahmedabad which has framed charges under
Sections 17 and 18 of UAPA against 24 accused.
On 02.05.2023, the NIA moved an application before the High
Court of Punjab and Haryana seeking cancellation of bail granted
to the petitioner in FIR No.20/2020.
2.7 On hearing the submissions on behalf of the NIA as well as on
behalf of the petitioner accused, the High Court considered the case
in light of Section 439 of Code of Criminal Procedure, 1973 (for short
“CrPC”) and the judgments applicable to the facts of the case. The
High Court noted that the petitioner was granted bail by it on
05.07.2021 but thereafter on 13.10.2021, the Central Government
in exercise of its powers under sub-section (5) of Section 6 read with
Section 8 of the NIA Act transferred the investigation to NIA, which
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was already investigating the matter involving FIR No.01/2018
under Sections 8(c), 21(c), 24, 25, 27A and 29 of the NDPS Act
registered on 12.08.2018 at PS ATS, Ahmedabad, Gujarat.
Similarly, investigation of the connected case bearing FIR
No.23/2020 dated 31.01.2020 under Sections 21, 25, 27A, 29 of
the NDPS Act registered at Police Station STF, District STF Wing,
Amritsar, Punjab was also transferred to the NIA by the Central
Government by order dated 28.06.2021. The High Court noted the
contention that there was huge recovery of heroin made by ATS
Gujarat as well as STS Punjab in FIR No.20/2020 and FIR
No.23/2020, and therefore, the link between the petitioner herein
to the said recovery of heroin effected in Gujarat or with the drug
cartel allegedly in operation, had to be investigated. That in fact,
NIA Special Court, Ahmedabad had framed charges against 24
accused including Sukhbir Singh alias Happy under Sections 17
and 18 of the UAPA, among other offences.
2.8 Therefore, the High Court found grave allegations of cross-
border narco-terrorism involving a huge recovery of 500 kgs of
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heroin, which was stated to have been smuggled into India through
Gujarat and then into Punjab in a meticulously planned manner.
In order to seriously investigate the offences and the drug syndicate
that the petitioner accused and others had a role in, it was
necessary that the investigation be carried out with custodial
interrogation. Hence, the submission of the petitioner herein that
he would cooperate with the investigation and therefore taking him
into custody was unnecessary was not accepted by the High Court.
Consequently, the High Court allowed the application filed by NIA
and cancelled the bail granted by it by order dated 05.07.2021 so
as to enable the NIA to thoroughly investigate into the offences
which had been added into the offences alleged.
Being aggrieved by the impugned order, the petitioner has
preferred the instant Special Leave Petition.
Writ Petition (Crl.) No.168 of 2024:
3. This writ petition was preferred by the petitioner challenging
the action of the Central Government in issuance of Orders dated
29.06.2020, 28.06.2021 and 12.10.2021 by the Ministry of Home
Page 8 of 84
Affairs, CTCR Division, North Block, New Delhi, wherein the
investigation of FIRs which were primarily registered under the
NDPS Act has been entrusted to NIA in exercise of powers under
Section 6(5) and Section 8 of the NIA Act.
3.1 At the outset, it is necessary to note that Section 3(2) of the
NIA Act provides that subject to any orders of the Central
Government, the NIA shall have throughout India in relation to the
investigation of Scheduled Offences and arrest of persons
concerned in such offences, all the powers, duties, privileges and
liabilities which police officers have in connection with the
investigation of offences committed therein. Importantly, while the
offences under the NDPS Act do not find a place under the NIA Act,
UAPA is mentioned in the Schedule to the NIA Act. Therefore, if any
provision of the UAPA is attracted, the NIA could be directed to
exercise jurisdiction to investigate the same.
3.2 The petitioner-accused is alleged to be one of the main accused
operating an organized syndicate engaged in cross-border
smuggling of drugs and narcotics substances allegedly making their
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way into India through Pakistan, Afghanistan and other countries.
The petitioner-accused was first implicated only in FIR No. 20/2020
dated 29.01.2020 registered with PS STF, SAS Nagar, Mohali,
Punjab under various provisions of the NDPS Act, but for a
comprehensive view of the matter it is necessary to note that FIR
No.01/2018 dated 12.08.2018 registered with PS ATS, Ahmedabad,
Gujarat is also relevant to the instant writ petition. It was borne
out in investigation in FIR No.01/2018 that Aziz Abdul Bhagad,
Rafique Adam Sumra, Nazir Ahmed, Arshad Abdul Razaq Sota @
Raju Dubai, Manzoor Ahmed, Razak Aadam Sumra, Karim Md Siraj
and Sunil Vithal Barmase and some other accused persons had
conspired to smuggle and distribute about 500 kgs of heroin from
Pakistan to Gujarat by sea. Chargesheet in respect of FIR No.
01/2018 registered with PS ATS, Ahmedabad, Gujarat was filed on
09.01.2019.
3.3 Subsequently, on 29.01.2020, FIR No. 20/2020 was registered
with PS STF, SAS Nagar, Mohali, Punjab on the statement of one
Rachpal Singh, AIG, STF Border Range, Amritsar. Aforesaid FIR
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notes that secret information was received that one person named
Sukhbir Singh alias Happy who supplies heroin in Punjab as well
as other States was moving in his car with large quantity of heroin
and illegal weapons. It was noted that the same person has links
with smugglers in India as well as outside of India. Acting on the
said information, the Special Task Force (STF) arrested him and
upon search, one revolver of 0.32 bore along with live cartridges and
six boxes of heroin weighing 5.690 kilograms were recovered.
During interrogation, Sukhbir Singh alias Happy revealed that the
car he was found in belonged to the petitioner-accused herein. On
the same day, i.e., 29.01.2020, the petitioner-accused herein was
arrested in pursuance of the statement of Sukhbir alias Happy. At
the house of petitioner-accused, the following items were recovered:
i. heroin weighing 3.25 kgs.;
ii. 3 transparent plastic bags along with a can containing
ammonia solution;
iii. one plastic bag containing 500 grams of codeine
charcoal powder; and
iv. 500 ml of hydrochloride acid.
Page 11 of 84
3.4 Subsequently, on 31.01.2020, on the basis of the statement of
Sh. Rashpal Singh AIG, STF Border Range, Amritsar, FIR No.
23/2020 was registered with PS STF, SAS Nagar, Mohali, Punjab.
It is alleged that secret information was received that the petitioner-
accused along with companions Sukhwinder Singh, Major Singh,
Tamana Gupta, Afghanistani Arman Bashar Mall, Simarjeet Singh
Sandhu and others sell contraband drugs to customers for profit
and to that end they had made a secret storage in the area of
Sultanwind, Amritsar. Subsequent to the registration of FIR
No.23/2020, recovery of 188.95 kgs Dextromethorphan Powder,
25.965 kgs Caffeine, 3 kgs Charcoal, 207.12 kgs intoxicant liquid
chemical and other instruments for preparation of heroin was
effected from House No.127-130, Akash Vihar, Sultanwind,
Amritsar. It was alleged that the accused in the said FIR had
established connections with smugglers from Dubai, Pakistan and
Afghanistan.
3.5 On 11.06.2020, Chargesheet was filed in FIR No. 20/2020
under Sections 21, 25, 27-A, 29, 61, 85 of the NDPS Act and under
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Sections 30, 54, 59 of the Arms Act. Similarly, Chargesheet was filed
in FIR No.23/2020 under Sections 21, 25, 27-A, 29, 61, 85 of the
NDPS Act. Both the above chargesheets were, inter alia, against the
petitioner herein. Notably, in both Chargesheets, at column 2 i.e.
‘Accused who were not challaned’ one “Simarjeet Singh Sandhu” is
mentioned.
3.6 The Central Government upon receipt of information regarding
FIR No.01/2018 registered with PS ATS, Ahmedabad, Gujarat
formed an opinion that a Schedule Offence has been committed and
Sections 17 and 18 of the UAPA – (Scheduled Offence under the NIA
Act) – are attracted and therefore the Central Government in
exercise of powers under Section 6(5) read with Section 8 of the NIA
Act directed NIA to take up the investigation by Order dated
29.06.2020. This is the first order impugned in this writ petition.
3.7 It is pertinent to note that although the offences attracted in
the FIR and Chargesheet fall under various sections of the NDPS
Act, the Central Government was of the opinion that Sections 17
and 18 of the UAPA were are also attracted. Consequently, FIR No.
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01/2018 dated 12.08.2018 was renumbered and reregistered as
FIR No. RC 26/2020/NIA/DLI dated 02.07.2020. It is crucial that
after two years of the first FIR i.e. FIR No.01/2018 registered with
PS ATS, Ahmedabad, Gujarat and some months after the
registration of the FIR No.20/2020 and FIR No.23/2020 in Punjab,
the NIA was directed to investigate FIR No.01/2018. The re-
numbered FIR dated 02.07.2020 registered by NIA notes the
following as wanted accused persons under column no.7:
“x x x x
Wanted accused persons:
(9) Sahid Kasambhal Sumra, Res Mandvi, Bandar Road,
Bachu Harji na vada, Kutch-West.
(10) Simaranjitsingh Sarabjitsingh Sandhu Res. A/288,
Ranajeet Avenue, Amritsar, Punjab.
(11) Haji Sab Bhaijan, Res Pakistan, whose full name and
address not known
(12) Pakistani citizen Nabibax, Res. Dubai, whose full name
and address not known
(13) Pakistani Persons Haji sab @ Bhaijan; who brought the
heroin in ship through sea route from Pakistan, their names
and address not known.”
(emphasis supplied)
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3.8 Notably, wanted accused No.10 in the re-numbered FIR
registered by NIA on 02.07.2020 is a co-accused in the FIRs
registered in Punjab and, as already noted, is marked as ‘Accused
Persons not challaned’ in chargesheets filed under Section 173 of
the CrPC in both the cases.
3.9 Further investigation by NIA revealed a larger conspiracy of
smuggling huge quantity of heroin from Pakistan to India that was
funding terrorist activities. Therefore on 07.08.2020, Chargesheet
was dispatched by NIA under Section 120-B IPC, Sections 8(c),
21(c), 24, 25, 27(A) and 29 of the NDPS Act and Sections 17 & 18
of the UAPA in the Court of Special Judge at Ahmedabad,
constituted under NIA Act, 2008. The aforesaid Chargesheet listed
Simarjeet Singh Sandhu as wanted accused No.2 as allegedly
substantial quantity of heroin was delivered to his aides at a rented
godown of Simarjeet Singh Sandhu at Aithor Village, near Unjha,
Gujarat, where it was hidden for further transport to Amritsar,
Punjab.
Page 15 of 84
3.10 Thereafter, another Order was issued by the Ministry of
Home Affairs on 28.06.2021 exercising its powers under Section
6(5) and Section 8 of the NIA Act to direct NIA to investigate FIR No.
23/2020 dated 31.01.2020. The Order notes that vide ID No.
18/PD/03cases/ATS/NIA/DLI/2020/(468)/7662 dated 18.6.2021,
the NIA forwarded a report stating that FIR No.23/2020 under
Sections 21, 25, 27 & 29 of NDPS Act is an offence connected to FIR
No.01/2018, which was already transferred to NIA, and therefore
NIA should be directed to investigate FIR No.23/2020 as well. This
is the second order impugned in this writ petition.
3.11 In the meanwhile, the petitioner-accused had moved the High
Court of Punjab and Haryana seeking regular bail in connection
with FIR No.20/2020. On 05.07.2021, petitioner was enlarged on
bail by the High Court in connection with FIR No.20/2020 and on
21.09.2021, the High Court similarly enlarged the petitioner on bail
in connection with FIR No.23/2020.
3.12 Notably, the first FIR registered with PS STF, SAS Nagar,
Mohali, Punjab bearing No. 20/2020 was transferred to NIA later
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on 13.10.2021 vide Order of Ministry of Home Affairs, which notes
that FIR No.20/2020 is an offence connected to FIR No.01/2018
and thereby in exercise of powers under Section 6(5) read with
Section 8 of the NIA Act, the NIA was directed to investigate the
same. This is the third FIR assailed in this writ petition.
3.13 In these circumstances, petitioner-accused preferred
Criminal Misc. Application No. 13/2022 before the Court of Special
Judge constituted under the NIA Act seeking anticipatory bail u/s
438, Cr.P.C. in connection with FIR No. 01/2018 registered by PS
ATS, Ahmedabad, Gujarat renumbered as FIR No. RC
26/2020/NIA/DLI dated 02.07.2020. However, the same was
rejected vide order dated 06.05.2022.
3.14 Furthermore, on 02.05.2023, respondent-NIA filed
application CRM-M No.24743/2023 before High Court of Punjab
and Haryana at Chandigarh seeking cancellation of regular bail
granted to the petitioner in FIR No.20/2020 registered at PS STF,
SAS Nagar, Mohali, Punjab. Vide Order dated 29.01.2024, the High
Court allowed the application preferred by NIA and noted that the
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Gujarat case involving cross border transportation of 500 kgs of
heroin and the cases registered in Punjab were linked and were both
being investigated jointly by the NIA. It was also held that there is a
need for thorough investigation, including custodial interrogation of
the petitioner-accused. This was especially emphasized in light of
the fact that additional offenses under Sections 17 and 18 of the
UAPA had been added against co-accused “Simarjeet Singh
Sandhu”.
3.15 Aggrieved by the order of the High Court cancelling bail,
petitioner-accused preferred SLP (Crl.) No. 2819/2024, wherein this
Court granted the petitioner-accused interim protection from
coercive steps. In addition, the present writ petition has been
preferred challenging the aforesaid three Orders of the Central
Government entrusting upon the NIA to investigate the aforesaid
offences under the NDPS Act as connected offences.
Submissions of the Parties:
4. Sri Siddhartha Dave, learned senior counsel appearing for the
petitioner has premised his arguments on the basis of Article 21 of
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the Constitution of India which states that no person shall be
deprived of his life or personal liberty except according to the
procedure established by law. On the strength of Article 21, the
petitioner herein has questioned the orders at Annexures P-4, P-6
and P-9, dated 29.06.2020, 28.06.2021, 12.10.2021 respectively,
passed by respondent No.1, as being illegal and ultra vires the
provisions of the NIA Act. Sri Dave submitted that the petitioner
also has the protection of laws under Article 14 of the Constitution.
That in the instant case alleging offences said to have been
committed by the petitioner under the NDPS Act which are non-
scheduled offences, the petitioner is sought to be investigated and
proceeded against under Scheduled Offences, namely, Sections 17
and 18 of the UAPA (under the provisions of the NIA Act). It was
submitted that the investigation into the FIRs registered under the
provisions of the NDPS Act vis-à-vis the petitioner, namely, FIR
No.20/2020 dated 29.01.2020 and FIR No.23/2020 dated
31.01.2020, vide orders dated 28.06.2021 (Annexure P-6) and order
dated 12.10.2021 (Annexure P-9) respectively, on the basis of
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Section 8 of the NIA Act, is illegal and ultra vires the provisions of
Section 6 of the NIA Act.
4.1 In this context, learned senior counsel drew our attention to
Section 6 of the NIA Act and with particular reference to sub-
sections (1) to (4) of Section 6 and sub-section (5) of Section 6 in
order to contend that there are two ways in which investigation
could be handed over to the NIA to investigate a Scheduled Offence
under Section 6 of the NIA Act. That the schedule to the NIA Act
prescribes the offences under various Acts including some offences
under the Indian Penal Code (IPC). That in the instant case, sub-
section (5) of Section 6 was invoked by the Central Government to
suo motu refer the investigation of the aforesaid offences registered
against the petitioner herein under the NDPS Act by virtue of
Annexures P-6 and P-9 which are non-scheduled offences by linking
them to FIR No.1/2018 dated 12.08.2018 registered at PS ATS,
Ahmedabad, Gujarat, under Sections 8(c), 21(c), 24, 25, 27A and
29 of the NDPS Act and Sections 17 and 18 of the UAPA against
some other accused who have nothing to do with the petitioner
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herein. That merely because by order dated 29.6.2020 (Annexure P-
4) in light of the aforesaid FIR, Sections 17 and 18 of UAPA being
Scheduled Offences were said to have been attracted and the said
FIR was directed to be investigated by the NIA, Section 8 could not
have been invoked by the Central Government to link the offences
registered against the petitioner under the NDPS Act with Sections
17 and 18 of the UAPA Act, thereby handing over the investigation
of the offences which had been investigated by the Punjab State
Police to the NIA vide Annexures P-6 and P-9. Hence, Annexures P-
4, P-6 and P-9 are assailed in the writ petitions. It was contended
that the investigation that was handed over to the NIA by the
Central Government by virtue of Annexure P-4 order dated
29.6.2020 was in respect of FIR No.1/2018 dated 12.08.2018
registered at PS ATS, Ahmedabad, Gujarat under certain provisions
of the NDPS Act on the premise that Sections 17 and 18 of the UAPA
Act were also attracted in the case against certain accused persons.
However, those accused persons are not accused in the FIR
registered against the petitioner herein. In the absence of there
being any connection either with the accused against whom
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offences have been registered by the Gujarat State Police or with
any Scheduled Offence being registered against the petitioner
herein, Section 8 of the NIA Act could not have been invoked against
the petitioner as if he had committed a Scheduled Offence.
4.2 Referring to Section 8, learned Senior Counsel Sri Dave
submitted that the said Section would be available only when an
accused who has been investigated for a Scheduled Offence can also
be investigated for any other offence which the accused is alleged to
have committed only if the other offence is connected with the
Scheduled Offence. In the instant case, the petitioner was not being
investigated by the Punjab State Police for any Scheduled Offence
but for non-scheduled offences under the provisions of the NDPS
Act. The petitioner was not being investigated in respect of FIR
No.01/2018 dated 12.08.2018 registered at PS ATS, Ahmedabad,
Gujarat which is also in respect of non-scheduled offences.
However, while handing over the investigation of the aforesaid FIR
to the NIA, the Central Government by order dated 29.6.2020
invoked Sections 17 and 18 of the UAPA to connect the offences
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under the NDPS Act (non-scheduled offences) in order to enable the
investigation of the accused named in FIR No.1/2018 dated
12.08.2018 registered at PS ATS, Ahmedabad, Gujarat for offences
under the NDPS Act as well as under Sections 17 and 18 UAPA Act
which are Scheduled Offences. It appears that while carrying out
the investigation pursuant to order dated 29.6.2020 (Annexure P-
4), the NIA forwarded reports to the Central Government with regard
to FIR No.23/2020 dated 31.01.2020 at Police Station STF, District
STF Wing, Amritsar, Punjab as well as FIR No.20/2020 dated
29.01.2020 registered at PS STF SAS Nagar, Mohali, Punjab against
the petitioner herein and consequently, under Section 8 of the NIA
Act, orders at Annexures P-6 and P-9 have been passed by invoking
the offences under the UAPA also against the petitioner herein. It
was submitted that such a procedure is impermissible in the
absence of there being any link or connection between the accused
persons in FIR No.1/2018 dated 12.08.2018 at PS ATS,
Ahmedabad, Gujarat, registered under certain provisions of the
NDPS Act and FIR No.23/2020 dated 31.01.2020 at Police Station
STF, District STF Wing, Amritsar, Punjab as well as FIR No.20/
Page 23 of 84
2020 dated 29.01.2020 registered at PS STF, SAS Nagar, Mohali,
Punjab registered under certain provisions of the NDPS Act against
the petitioner herein.
4.3 It was further submitted that offences alleged against the
petitioner herein under the NDPS Act do not relate to the persons
accused by the Gujarat State Police and therefore there is no
connection of the petitioner with any Scheduled Offence. It was
submitted that the Scheduled Offences have been invoked as
against the persons accused by the Gujarat Police at the time of
handing over of the investigation to the NIA but the same could not
have been replicated insofar as the petitioner herein is concerned.
It was contended that in the absence of there being any connection
between the offences alleged against the petitioner herein with the
offences alleged against the accused by the Gujarat Police, the
invocation of Section 8 of the NIA Act for passing of the impugned
orders is illegal and arbitrary and in total violation of Articles 14
and 21 of the Constitution. Learned senior counsel submitted that
the writ petitions may be allowed and the orders issued at
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Annexures P-4, P-6 and P-9 insofar as the petitioner is concerned,
may be quashed and set-aside.
4.4 Learned senior counsel, Sri Dave, further submitted that the
High Court which has granted bail to the petitioner herein vide order
dated 05.07.2021 could not have, at the instance of NIA, cancelled
the bail by the impugned order dated 29.01.2024. He submitted
that if the arguments advanced on behalf of the petitioner in the
writ petition are accepted by this Court and the orders at Annexures
P-4, P-6 and P-9 assailed in the writ petition are quashed, then the
impugned order of cancellation of bail by the High Court at the
instance of the respondent NIA would have to be quashed.
Consequently, the earlier order of the High Court granting bail
would revive. The petitioner is willing to cooperate with the trial of
the offences alleged against him under the NDPS Act before the
Special Court in Punjab itself. Consequently, it is submitted that
the transfer of the FIR and trial to Special Court, Ahmedabad would
also have to be quashed. Learned senior counsel submitted that
the arguments advanced in the writ petition be read as part and
Page 25 of 84
parcel of the arguments in the Special Leave Petition and the
impugned order of cancellation of the petitioner’s bail may be set-
aside and the earlier order dated 05.07.2021 granting bail may be
revived.
4.5 On the other hand, learned ASG Ms. Aishwarya Bhati
appearing for respondent Union of India and NIA, with reference to
the counter affidavit filed on behalf of Union of India at the outset
submitted that the writ petition is misconceived; that the impugned
order dated 29.6.2020 (Annexure P-4) was issued by the Central
Government by invoking sub-section (5) of Section 6 of the NIA Act;
the petitioner herein cannot have any grievance with regard to the
said order inasmuch as the petitioner is not named in FIR
No.1/2018 dated 12.08.2018; however, during the investigation of
the Scheduled Offences under Sections 17 and 18 of the UAPA Act
which are also connected with FIR No.01/2018 dated 12.08.2018
at PS ATS, Ahmedabad, Gujarat, under certain provisions of the
NDPS Act (non-scheduled offences), it emerged that the offences
alleged against the petitioner herein in FIR No.23/2020 and FIR
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No.20/2020 were connected to the Scheduled Offences under
Sections 17 and 18 of the UAPA which were already being
investigated by the NIA and, therefore, orders at Annexures P-6 and
P-9 were issued.
4.6 With reference to the role of the petitioner, it was submitted
by Ms. Bhati that he is part of the narco-terror network of smuggling
drugs into India, transporting from Gujarat to Punjab, storing the
same and purifying in Amritsar and Ludhiana for further
distribution to various parts of Punjab and the National Capital,
New Delhi and its surrounding areas. That the petitioner is alleged
to have received for purification 500 kgs of narcotic drugs of heroin
from Sukhbir Singh alias Happy (A-10) and his associates on the
directions of Italy based wanted accused Simarjeet Singh Sandhu
(WA-2). The charge-sheet filed by Police Station STF, District STF
Wing, Amritsar, Punjab in FIR No.23/2020 reveals that the
petitioner herein along with accused Sukhbir alias Happy (A10) had
brought chemicals at the behest of accused Simarjeet Singh
Sandhu (WA-2) for refinement and purification of heroin at
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Amritsar. With reference to the details in the counter affidavit, it
was pointed out by the learned ASG that the petitioner herein is
closely associated with the kingpin and wanted accused Simarjeet
Singh Sandhu (WA-2) and other accused which fact has been
corroborated by the disclosure statements of other accused and the
petitioner herein has received huge sums of money for distribution
and transporting of narcotic drug heroin. That the NIA was already
investigating FIR No.01/2018 dated 12.08.2018 at PS ATS,
Ahmedabad, Gujarat in respect of certain accused including
Sukhbir Singh alias Happy (A-10) and during the course of said
investigation, the role of the petitioner was revealed, therefore,
Orders at Annexures at P-6 and P-9 were issued. There is a clear
link and connection between FIR No.1/2018 dated 12.08.2018
registered at PS ATS, Ahmedabad, Gujarat which is registered
against certain accused persons under certain provisions of the
NDPS Act wherein the provisions of UAPA Act are also attracted.
Therefore, the Central Government directed the investigation of the
aforesaid FIR in connection with Sections 17 and 18 of the UAPA
which are Scheduled Offences; that the offences alleged against the
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petitioner herein are also under the provisions of the NDPS Act
which are non-scheduled offences but those offences have a
connection with Sections 17 and 18 of the UAPA which are
Scheduled Offences inasmuch the investigation by the NIA of the
aforesaid Scheduled Offences has detected the link between the
petitioner herein with the accused in FIR No.01/2018 dated
12.08.2018 registered at PS ATS, Ahmedabad, Gujarat. That in
respect of that FIR, the Central Government had already passed an
order on 26.9.2020 invoking Sections 17 and 18 of the UAPA which
are Scheduled Offences. Consequently, there is a vital connection
between the petitioner herein to the aforesaid Scheduled Offences
also. Hence, orders in Annexures P-6 and P-9 were issued
transferring the investigation of FIR No.23/2020 dated 31.01.2020
at Police Station STF, District STF Wing, Amritsar, Punjab as well
as FIR No.20/2020 dated 29.01.2020 registered at PS STF, SAS
Nagar, Mohali, Punjab lodged against the petitioner to the NIA to
further investigate the matter. Therefore, according to learned ASG,
Section 8 has been rightly applied in the case of the petitioner
herein as the offences alleged against the petitioner and other
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accused have a connection with the Scheduled Offences under the
UAPA and there is no merit in this petition.
4.7 Learned ASG further submitted that Section 14 of the NIA Act
empowers the Special Court to try any other offence which the
accused may be charged as if the offence which is being tried is
connected with any such other offence.
4.8 In light of the above discussions, the learned ASG prayed for
dismissal of the writ petition.
4.9 Learned ASG further submitted that the arguments
advanced in the writ petition may be read as part and parcel of the
arguments in the Special Leave Petition. Consequently, the NIA,
having jurisdiction to investigate the Scheduled Offences along with
connected offences (non-scheduled offences) in the instant case,
was justified in applying for cancellation of bail granted to the
petitioner herein. It is finally submitted that taking note of the
circumstances of the case and the entire gamut of facts involved,
the Punjab and Haryana High Court, by the impugned order, has
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rightly cancelled the bail granted to the petitioner herein and the
same does not call for any interference by this Court as there are
no merits in the Special Leave Petition which may be dismissed.
National Investigation Agency, 2008:
5. Sections 3, 6, 7, 8 and 14 of the NIA Act are extracted as under:
“3. Constitution of National Investigation Agency.—(1)
Notwithstanding anything in the Police Act, 1861 (5 of
1861), the Central Government may constitute a special
agency to be called the National Investigation Agency for
investigation and prosecution of offences under the Acts
specified in the Schedule.
(2) Subject to any orders which the Central Government
may make in this behalf, officers of the Agency shall have
throughout India in relation to the investigation of
Scheduled Offences and arrest of persons concerned in
such offences, all the powers, duties, privileges and
liabilities which police officers have in connection with the
investigation of offences committed therein.(3) Any officer of the Agency of, or above, the rank of Sub-
Inspector may, subject to any orders which the Central
Government may make in this behalf, exercise throughout
India, any of the powers of the officer-in-charge of a police
station in the area in which he is present for the time being
and when so exercising such powers shall, subject to any
such orders as aforesaid, be deemed to be an officer-in-
charge of a police station discharging the functions of such
an officer within the limits of his station.
x x x x
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6. Investigation of Scheduled Offences.—(1) On receipt
of information and recording thereof under section 154 of
the Code relating to any Scheduled Offence the officer-in-
charge of the police station shall forward the report to the
State Government forthwith.
(2) On receipt of the report under sub-section (1), the State
Government shall forward the report to the Central
Government as expeditiously as possible.
(3) On receipt of report from the State Government, the
Central Government shall determine on the basis of
information made available by the State Government or
received from other sources, within fifteen days from the
date of receipt of the report, whether the offence is a
Scheduled Offence or not and also whether, having regard
to the gravity of the offence and other relevant factors, it is
a fit case to be investigated by the Agency.
(4) Where the Central Government is of the opinion that
the offence is a Scheduled Offence and it is a fit case to be
investigated by the Agency, it shall direct the Agency to
investigate the said offence.
(5) Notwithstanding anything contained in this section, if
the Central Government is of the opinion that a Scheduled
Offence has been committed which is required to be
investigated under this Act, it may, suo motu, direct the
Agency to investigate the said offence.
(6) Where any direction has been given under sub-section
(4) or sub-section (5), the State Government and any police
officer of the State Government investigating the offence
shall not proceed with the investigation and shall forthwith
transmit the relevant documents and records to the
Agency.
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(7) For the removal of doubts, it is hereby declared that till
the Agency takes up the investigation of the case, it shall
be the duty of the officer-in-charge of the police station to
continue the investigation.
(8) Where the Central Government is of the opinion that a
Scheduled Offence has been committed at any place
outside India to which this Act extends, it may direct the
Agency to register the case and take up investigation as if
such offence has been committed in India.
(9) For the purposes of sub-section (8), the Special Court
at New Delhi shall have the jurisdiction.
7. Power to transfer investigation to State
Government.—While investigating any offence under this
Act, the Agency, having regard to the gravity of the offence
and other relevant factors, may—
(a) if it is expedient to do so, request the State
Government to associate itself with the
investigation; or
(b) with the previous approval of the Central
Government transfer the case to the State
Government for investigation and trial of the
offence.
8. Power to investigate connected offences.—While
investigating any Scheduled Offence the Agency may also
investigate any other offence which the accused is alleged
to have committed if the offence is connected with the
Scheduled Offence.
x x x x
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14. Powers of Special Courts with respect to other
offences.— (1) When trying any offence, a Special Court
may also try any other offence with which the accused
may, under the Code be charged, at the same trial if the
offence is connected with such other offence.
(2) If, in the course of any trial under this Act of any
offence, it is found that the accused person has committed
any other offence under this Act or under any other law,
the Special Court may convict such person of such other
offence and pass any sentence or award punishment
authorised by this Act or, as the case may be, under such
other law.”
5.1 A perusal of the aforesaid provisions and the long title of the
NIA Act elucidates that the NIA Act was enacted to constitute a
national level investigation agency to investigate and prosecute
offences, inter alia, affecting the sovereignty, security and integrity
of India, and security of State.
5.2 Under Section 3(1), NIA has been constituted as “a special
agency” for the investigation and prosecution of offences under the
enactments specified in the Schedule to the NIA Act. Importantly,
Section 6 provides for the initiation of investigation of Scheduled
Offences by the NIA. While sub-sections (1) to (4) lay down the
framework for initiation of investigation by NIA after a report is
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received from the State Government by the Central Government, an
exception to the procedure found in sub-sections (1) to (4) is
provided by sub-section (5). By way of Section 6(5), the Parliament
has entrusted overriding power to the Central Government to suo
motu direct NIA to investigate an offence if the Central Government
is of the opinion that a Scheduled Offence has been committed
under the NIA Act and that such Scheduled Offence is required to
be investigated by NIA.
5.3 Sub-section (1) of Section 3 begins with a non-obstante clause
as notwithstanding anything in the Police Act, 1861, the Central
Government may constitute a special agency to be called the
National Investigation Agency (NIA) for investigation and
prosecution of offences under the Acts specified in the Schedule.
5.4 Sub-section (2) of Section 3 states that subject to any orders
which the Central Government may make, NIA shall have
throughout India and subject to any international treaty or
domestic law of the concerned authority, in relation to the
investigation of Scheduled Offences and arrest of persons
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concerned in such offences, all the powers, duties, privileges and
liabilities which police officers have in connection with the
investigation of offences committed therein. Sub-section (3) of
Section 3 states that subject to any orders which the Central
Government may make, any officer of the NIA, of or above the rank
of a Sub-Inspector, may exercise throughout India, any of the
powers of the officer-in-charge of a police station in the area in
which he is present for the time being and when so exercising such
powers shall, subject to any such orders as aforesaid, be deemed to
be an officer-in-charge of a police station discharging the functions
of such an officer within the limits of his station.
5.5 The superintendence of the NIA vests in the Central
Government vide sub-section (1) of Section 4 of the NIA Act. The NIA
is headed by Director General appointed by the Central Government
akin to the powers exercised by a Director General of Police in
respect of the police force in a State, as the Central Government
may specify in that behalf vide sub-section (2) of Section 4.
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5.6 Sub-sections (1) to (4) of Section 6 relate to receipt of
information and recording thereof under Section 154 of the CrPC
relating to any Scheduled Offence under the NIA Act by any officer-
in-charge of a police station being forwarded to the State
Government. The State Government would then forward the report
to the Central Government and on receipt of such a report from the
State Government, the Central Government would determine
whether the offence is a Scheduled Offence or not and having regard
to the gravity of the offence and other relevant factors, whether it is
a fit case to be investigated by the NIA.
5.7 However, sub-section (5) of Section 6 is akin to an exception
to sub-section (1) to (4) of Section 6. It is a suo motu power vested
with the Central Government to direct investigation of a Scheduled
Offence which has been allegedly committed and which is required
to be investigated under the said Act by the NIA. This power is de
hors the power to be exercised by the Central Government under
sub-sections (3) and (4) of Section 6. That is why sub-section (5) of
Section 6 begins with a non-obstante clause and it is
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notwithstanding anything contained in Section 6 that the suo motu
power can be exercised by the Central Government by forming an
opinion. Sub-section (8) of Section 6 states that where the Central
Government is of the opinion that a Scheduled Offence has been
committed at any place outside India to which the said Act extends,
it may direct the NIA to register the case and take up investigation
as if such offence has been committed in India. The powers under
sub-sections (5) are reserved to the Central Government to be
exercised by it suo motu when a Scheduled Offence has been
committed in India or overseas to which the said Act applies, when
it can on the basis of its opinion formed, direct the NIA to investigate
the said offence. In fact, in the case of an offence committed outside
India to which NIA Act extends, the Central Government can direct
the NIA to register the case as well as take up investigation as if
such offence has been committed in India.
5.8 Section 8 states that while investigating any Scheduled
Offence the NIA may also investigate any other offence which the
accused is alleged to have committed if the offence is connected with
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the Scheduled Offence. The key words in Section 8 are “connected
with the Scheduled Offence”. Therefore, what is necessary to confer
power on the NIA to investigate any other offence apart from a
Scheduled Offence which has been directed to be investigated by it,
“is the connection of” any other offence with the Scheduled Offence.
The expression “any other offence” is wide and expansive in nature.
The connection with the Scheduled Offence could be by any other
Scheduled Offence under the NIA Act or any other offence which
may not be a Scheduled Offence under the provisions of NIA Act but
nevertheless has a connection with the Scheduled Offence under
the provisions of the NIA Act.
Unlawful Activities (Prevention) Act, 1967:
6. Under the Schedule to the NIA Act, inter alia, the offences
under the UAPA are Scheduled Offences. Section 2(1)(g) of the NIA
Act defines Scheduled Offence to mean an offence specified in the
Schedule to the NIA Act.
6.1 The UAPA in Chapter IV defines a terrorist act in Section 15
and punishment for raising fund for a terrorist act in Section 17
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while punishment for a terrorist act is under Section 16. Section
18 of UAPA speaks about punishment for conspiracy.
Sections 15, 16, 17 and 18 of the UAPA are extracted as under:
“15. Terrorist Act.- (1) Whoever does any act with intent
to threaten or likely to threaten the unity, integrity,
security, economic security, or sovereignty of India or with
intent to strike terror or likely to strike terror in the people
or any section of the people in India or in any foreign
country,–
(a) by using bombs, dynamite or other explosive
substances or inflammable substances or firearms or
other lethal weapons or poisonous or noxious gases or
other chemicals or by any other substances (whether
biological radioactive, nuclear or otherwise) of a hazardous
nature or by any other means of whatever nature to cause
or likely to cause-
(i) death of, or injuries to, any person or persons; or
(ii) loss of, or damage to, or destruction of, property;
or
(iii) disruption of any supplies or services essential to
the life of the community in India or in any foreign
country; or
(iiia) damage to, the monetary stability of India by way
of production or smuggling or circulation of high
quality counterfeit Indian paper currency, coin or
of any other material; or
(iv) damage or destruction of any property in India or
in a foreign country used or intended to be used
for the defence of India or in connection with any
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other purposes of the Government of India, any
State Government or any of their agencies; or
(b) overawes by means of criminal force or the show of
criminal force or attempts to do so or causes death of any
public functionary or attempts to cause death of any
public functionary; or
(c) detains, kidnaps or abducts any person and threatens
to kill or injure such person or does any other act in order
to compel the Government of India, any State Government
or the Government of a foreign country or an international
or inter-governmental organisation or any other person to
do or abstain from doing any act; or commits a terrorist
act.
Explanation.–For the purpose of this sub-section,
(a) “public functionary” means the constitutional
authorities or any other functionary notified in the Official
Gazette by the Central Government as public functionary;
(b) “high quality counterfeit Indian currency” means the
counterfeit currency as may be declared after examination
by an authorised or notified forensic authority that such
currency imitates or compromises with the key security
features as specified in the Third Schedule.
(2) The terrorist act includes an act which constitutes an
offence within the scope of, and as defined in any of the
treaties specified in the Second Schedule.
16. Punishment for terrorist act-(1) Whoever commits a
terrorist act shall,-
(a) if such act has resulted in the death of any person, be
punishable with death or imprisonment for life, and shall
also be liable to fine;
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(b) in any other case, be punishable with imprisonment for
a term which shall not be less than five years but which
may extend to imprisonment for life, and shall also be
liable to fine.
17. Punishment for raising funds for terrorist act.-
Whoever, in India or in a foreign country, directly or
indirectly, raises or provides funds or collects funds,
whether from a legitimate or illegitimate source, from any
person or persons or attempts to provide to, or raises or
collects funds for any person or persons, knowing that
such funds are likely to be used, in full or in part by such
person or persons or by a terrorist organisation or by a
terrorist gang or by an individual terrorist to commit a
terrorist act, notwithstanding whether such funds were
actually used or not for commission of such act, shall be
punishable with imprisonment for a term which shall not
be less than five years but which may extend to
imprisonment for life, and shall also be liable to fine.
Explanation.—For the purpose of this section,—
(a) participating, organising or directing in any of the acts
stated therein shall constitute an offence;
(b) raising funds shall include raising or collecting or
providing funds through production or smuggling or
circulation of high-quality counterfeit Indian currency;
and
(c) raising or collecting or providing funds, in any manner
for the benefit of, or, to an individual terrorist, terrorist
gang or terrorist organisation for the purpose not
specifically covered under section 15 shall also be
construed as an offence.
18. Punishment for conspiracy, etc.—Whoever
conspires or attempts to commit, or advocates, abets,
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advises or incites, directs or knowingly facilitates the
commission of, a terrorist act or any act preparatory to the
commission of a terrorist act, shall be punishable with
imprisonment for a term which shall not be less than five
years but which may extend to imprisonment for life, and
shall also be liable to fine.”
Analysis:
7. Thus, if the provisions of Sections 17 and 18 of the UAPA are
attracted in a given case being Scheduled Offences under the NIA
Act, the Central Government, if it is of the opinion that such
Offences have been committed which are required to be
investigated under the Act, may under sub-section (5) of Section 6
of the said Act, in exercise of its suo motu power direct the NIA to
investigate the Scheduled Offences. But while investigating such
Scheduled Offences, the NIA can also investigate any other offence
which the accused is alleged to have committed provided the other
offence is connected with a Scheduled Offence. Applying the
aforesaid provision to the facts of the present case, it is held that
while investigating the offences under Sections 17 and 18 of UAPA
(Scheduled Offences) by virtue of sub-section (5) of Section 6, under
Section 8 any other offence such as (an offence under the NDPS Act
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connected with the Scheduled Offences (Sections 17 and 18 of theUAPA in the instant case) could also be investigated. But, such
other offence must have a connection with the Scheduled Offence.
7.1 Furthermore, in our view, the investigation could also be of a
person accused of an offence which has a connection with a
Scheduled Offence which is being investigated on the basis of
Section 8 of the NIA Act. Then, the Central Government may also
direct any such offence also to be investigated on receipt of a report
from the NIA as against any accused when it is already investigating
a Scheduled Offence against a certain accused, as in the instant
case provided that offence has a connection with the Scheduled
Offence. Also, the NIA has been conferred wide powers under
Section 8 of the NIA Act to also investigate into any other offence
committed by the accused in respect of whom a Scheduled Offence
is being investigated provided the offence is connected with the
Scheduled Offence under the Schedule to the NIA Act.
7.2 The interpretive challenge that has come to the forefront in
this case is due to the fact that there are certain co-accused persons
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who are present in FIR No.20/2020 and FIR No.23/2020 who arenot accused under the prior FIR No. 01/2018 registered in the State
of Gujarat. Therefore, the question is whether, the NIA can
investigate only the same accused who is present in the NIA
investigation qua Scheduled Offences and for non-scheduled
offence by virtue of Section 8 of the NIA Act. In other words, can the
NIA investigate any other accused person who, although not being
investigated for any Scheduled Offences could be investigated by
NIA because there exists a link between the two namely, Scheduled
and non-scheduled offences, thereby connecting every co-accused.
7.3 On a plain reading of Section 8, it is clear that the said Section
has to be read in continuation of what has been stated in sub-
section (5) of Section 6 of the NIA Act. Once the Central Government
directs the NIA to investigate a Scheduled Offence and during the
course of such investigation of a Scheduled Offence against an
accused, it becomes necessary for the NIA to also investigate any
other offence which the said accused is alleged to have committed,
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then such offence could also be investigated provided that other
offence to be investigated is connected with the Scheduled Offence.
7.4 However, in our view, the expression “the accused” in Section
8 of the NIA Act needs to be interpreted contextually. Learned senior
counsel for the petitioner submitted that the said expression has to
be read narrowly and as per its plain meaning as referring to only
“the accused” in respect of whom a Scheduled Offence is being
investigated by the NIA and if such an accused has committed any
other offence which is connected to the Scheduled Offence then
such other offence could also be investigated by the NIA provided
there is a connection with the Scheduled Offence. In other words,
the argument was, that in the first place, the investigation must be
of “the accused” who is accused of a Scheduled Offence and not any
other accused. Next, it is only in respect of such an accused if any
other offence is alleged to have been committed by him which is
connected with the Scheduled Offence, which could also be
investigated by the NIA on the strength of Section 8 of the NIA Act.
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7.5 We do not think that such a narrow interpretation could be
given to the expression “the accused” in Section 8 of the NIA Act to
not include any other accused. The expression “Agency may also
investigate any other offence which the accused is alleged to have
committed” has no doubt to be read with the rigour of “if the offence
is connected with the Scheduled Offence”. In other words, if any
other offence is connected with the Scheduled Offence, then the NIA
may investigate such other offence which the accused is alleged to
have committed provided there is a connection of such other offence
with the Scheduled Offence.
7.6 The question is, whether, the expression “the accused” in
Section 8 of the NIA Act has to refer to only the accused in respect
of whom a Scheduled Offence is being investigated or it could
include any other accused whose name would emerge during the
course of investigation of a Scheduled Offence and who has
committed an offence which has a connection with the Scheduled
Offence. In our view, the expression “the accused” in Section 8 of
the NIA Act cannot be restricted in its meaning and connotation to
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only the accused in respect of whom investigation is being carried
out pursuant to sub-sections (4) and (5) of Section 6 of the NIA Act
in respect of a Scheduled Offence. It could also include any other
accused who has committed any other offence provided that other
offence committed by any other accused has a connection or a
nexus with the Scheduled Offence which is detected during the
course of investigation of any Scheduled Offence. More importantly,
in the case of any other accused, the offences alleged need not be
Scheduled Offences, it could be any offence but must necessarily
have a connection with the Scheduled Offence. In such an event,
on the basis of Section 8 of the NIA Act, a report may be made to
the Central Government which can direct investigation against any
other accused (i.e., an accused other than the accused who is being
investigated) provided it has a connection with the Scheduled
Offence. In such a contingency, the Central Government while
invoking sub-section (5) of Section 6 read with Section 8 of the NIA
Act can direct investigation of any other accused alleging he has
committed an offence which is connected with the Scheduled
Offence already being investigated. On such a direction by the
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Central Government the NIA can assume jurisdiction to investigate
any other accused on the basis that he has committed an offence
which has to be investigated along with the Scheduled Offence
already under investigation.
7.7 The reasons for holding so shall be discussed. One reason
being that Section 8 of the NIA Act applies not only when it is acting
under sub-section (5) of Section 6 of the NIA Act; it also applies to
sub-section (4) of Section 6 of the NIA Act where the Central
Government acts on the receipt of a report from the State
Government when information received by the officer-in-charge of
the Police Station relates to any Scheduled Offence and the State
Government has forwarded the report to the Central Government.
Then, the Central Government, having regard to the gravity of the
offence and other relevant factors, if is of the opinion that the
offence is a Scheduled Offence and it is fit to be investigated by the
NIA, a direction would be issued to the NIA to investigate the said
Scheduled Offence. Irrespective of the contingency under which the
NIA is directed to investigate a Scheduled Offence under Section 6,
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Section 8 would apply. In either case, while carrying out the
investigation in respect of the accused alleged to have committed a
Scheduled Offence, information may emerge that there are other
accused who have committed any other offence which is connected
with the Scheduled Offence committed by the accused in respect of
whom investigation is being made by the NIA on the basis of Section
6 of the NIA Act.
7.8 Therefore, owing to the connection of any other offence with
the Scheduled Offence committed by any other accused in respect
of whom investigation is necessary, steps could be taken to
investigate the said other accused also. This is because the offence
said to have been committed by any other accused has a connection
with the Scheduled Offence. One cannot determine the manner in
which such information may emanate while carrying out an
investigation in respect of the accused who is alleged to have
committed a Scheduled Offence and who may have also committed
any other offence (non-scheduled offence) which could be along with
any other accused in respect of whom no direction may yet have
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been issued to carry on an investigation by the NIA under Section
6(5) of the NIA Act but exercise of jurisdiction under Section 8 may
become necessary. Therefore, during the course of investigation of
an accused alleged to have committed a Scheduled Offence, if, it
emerges or it is detected that the said accused along with any other
accused has committed other offence/s, then investigation with
regard to any other offence committed by some other accused along
with the accused said to have committed the Scheduled Offence
could also be carried out by requesting the Central Government for
a direction to investigate the other accused. Such other accused
may have committed an offence which has a connection with the
Scheduled Offence of the accused who is being investigated and
therefore Section 8 provides such a contingency.
7.9 Therefore, the nexus or connection between any other offence
and the Scheduled Offence is of critical importance and must be
present in order to enable the NIA to investigate any other offence
committed by an accused in connection with the Scheduled Offence.
The connection between a Scheduled Offence and any other offence
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being established would enable the NIA to investigate the accused
of committing any other offence which is connected with the
Scheduled Offence. Once there is such a connection between a
Scheduled Offence and a non-scheduled offence then, for all
practical purposes the non-scheduled offence would come within
the connection of a Scheduled Offence. Therefore, it is held that the
accused who may have committed a non-scheduled offence having
a connection with a Scheduled Offence can be investigated by the
NIA in respect of a non-scheduled offence.
7.10 It is reiterated that, while investigating the accused regarding
Scheduled Offences, if the NIA submits a report about some other
accused who may have also committed certain offences connected
with the Scheduled Offences under investigation then, the Central
Government on a consideration of such a report may exercise suo
motu powers and direct the NIA to also investigate the other accused
also provided the offences alleged against the other accused are
offences, having a connection with the Scheduled Offence already
under investigation. Thus, on the aforesaid basis NIA would be
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enabled to also carry out an investigation of any other accused who
has committed an offence connected with the Scheduled Offence
already being investigated. This would be in the realm of a joint
investigation into Scheduled Offences which may have occurred in
different parts of the country but having a connection with other
offences also.
Thus, the expression “the accused” would have to be given an
expansive and enlarged meaning in the above context having regard
to the object and purpose of Section 8 of the NIA Act and the context
in which provision has to be interpreted.
7.11 The word “the” used before a noun “accused” in Section 8
of the NIA Act has a particularizing effect, as opposed to “a” or “an”.
However, “a” and “the” sometimes have to be interchangeably
interpreted having regard to the context in which it is found and in
order to give it a contextual connotation so as to advance the object
and purpose of the provision. Section 8 of the NIA Act has to be
given a purposive and meaningful interpretation and one which
would advance the object of Section 6 and other provisions of the
Page 53 of 84
Act and cannot be read in a curtailed and narrow fashion as
submitted by learned senior counsel for the petitioner.
7.12 We have interpreted Section 8 of the NIA Act in such a way
that while investigating the accused of a Scheduled Offence, any
other accused could also be investigated on the strength of Section
8 provided the following condition precedents are applicable:
(i) the NIA is of the opinion that during an investigation, any
other accused who is alleged to have committed an offence
having a connection with the Scheduled Offence has also to
be investigated. In other words, there is a connection
between the Scheduled Offence under investigation and
any other offence committed by any other accused;
(ii) a report by the NIA is submitted incorporating the aforesaid
opinion to the Central Government;
(iii) the Central Government on consideration of such a report,
in exercise of its suo motu powers under sub-section (5) of
Section 6 read with Section 8 of the NIA Act directs the
Page 54 of 84
investigation to be carried out in respect of any otheraccused also; and
(iv) the said investigation of any other accused must be carried
out jointly as far as practicable with the investigation of the
accused already under progress owing to the connection
between the Scheduled Offence and any other offence.
7.13 On a holistic reading of the Section 8, the expression “the
accused” cannot be restricted to only the accused in respect of
whom investigation is being carried out by the NIA for any
Scheduled Offence. The NIA, which is carrying on an investigation
into any Scheduled Offence, can also investigate any other offence
which any other accused may have committed provided such other
offence is also an offence connected with the Scheduled Offence
under investigation.
7.14 Thus, so long as the connection between any offence
committed by any other accused and the Scheduled Offence
committed by the accused in respect of whom investigation has
been handed over by the Central Government to the NIA is
Page 55 of 84
established, the NIA would be empowered to conduct an
investigation of any other accused in respect of a Scheduled Offence
which is connected with the Scheduled Offence committed by the
accused in respect of whom the Central Government has handed
over or directed the investigation to be conducted by it. Therefore,
the scope of the powers of the NIA under Section 8 of the NIA Act
has to be interpreted expansively and not in a narrow manner.
7.15 While learned counsel for the petitioner would submit that
the correct course would be for the NIA to add those accused under
FIR No.20/2020 and FIR No.23/2020 as accused persons under the
NIA investigation rather than treating other offences as connected,
we find that such a course would lose sight of the salutary statutory
intent to investigate and prosecute at a national level and, in
particular, Section 6(6) of the Act which clearly envisions culling of
any duplicity of investigation. By allowing the NIA to investigate
those accused under different FIRs registered in different States, an
enlarged scope is provided to the investigation into the Scheduled
Offences.
Page 56 of 84
7.16 As already noted in the preceding discussion we must be
alive to the statutory intent for an actual realization of the statutory
scheme. In that regard, it is noteworthy that the Act, especially
Section 6 of the NIA Act, is offence-centric and not accused-centric.
The Act revolves around effective investigation of Scheduled
Offences. Similarly, the central concern of Section 8 of the NIA Act
is defining the scope of offences that can be investigated by the NIA
and on what basis and not who are the accused.
7.17 Additionally, we might also note that the phraseology of
Section 8 of the NIA Act also establishes that the NIA can only widen
its investigation to a non-scheduled offence only ‘while investigating
any Scheduled Offence’. Importantly, the NIA has not been given
unbridled power to initiate investigation of a connected and non-
scheduled offence in the absence of an investigation of any
Scheduled Offence. In our opinion, this speaks to the Parliament’s
wisdom to build safeguards within the text of the NIA Act.
7.18 Therefore, the submission of learned senior counsel Sri Dave
to read Section 8 of the NIA Act in a restrictive fashion and not
Page 57 of 84
expansively, does not advance the object and purpose of the Act and
particularly Section 6 thereof and hence, is rejected.
Analysis on facts of these cases:
8. The prayers sought in the writ petition have been noted. The
petitioner has assailed Annexures P-4, P-6 and P-9 which are orders
passed by respondent no.1 so as to seek a declaration that the
actions taken pursuant to the aforesaid orders are void and illegal.
For ease of reference, the aforesaid orders are extracted as under:
Annexure P-4
No 11011/44/2020/NIA
Government of India
Ministry of Home Affairs
CTR DivisionNorth Block, New Delhi
Dated, the 29th June, 2020ORDER
Whereas, the Central Government has received
information regarding the registration of Come No.01/2018
dated 12.08.2018 at PS ATS, Gujarat under sections 8 (C),
21 (c), 24, 25, 27 (A) & 29 of Narcotic Drugs and
Psychotropic Substances (NDPS) Act relating to seizure
4.949 Kg. of heroin worth approximately Rs 15 crore by
Gujarat ATS from Salaya Village, District DevbhoomiPage 58 of 84
Dwarka of Gujarat, from the possession of arrested accused
Aziz Abdul Bhagad do Salaya Check Post, District Dwarka;
And whereas, the aforesaid arrested accused had
brought total 300 k.g. of heroin in two rounds through sea
route in his own ship and gave it do accused Rafik Adham
Sumra R/o Mandvi, Kutch;
And whereas, sections 17 and 18 of the Unlawful
Activities (Prevention) Act, 1967 attracted in this case;
And whereas, the Central Government is of the opinion
that Scheduled Offence under National Investigation
Agency Act, 2008 has been committed and, having regard
to the gravity of the offence and grave national and
international ramifications it is required to be investigated
by the National Investigation Agency in accordance with the
National Investigation Agency Act, 2008.
Now therefore in exercise of the powers conferred under
sub-section (5) of section 6 read with section 8 of the
National Investigation Agency Act, 2008 the Central
Government whereby directs the National Investigation
Agency to take up investigation of the aforesaid case
(Dharmender Kumar)
Under Secretary to the Government of India
To
The Director General,
National Investigation Agency,
CGO Complex, Lodhi Road, New Delhi
Chief Secretary Government of Gujarat
DGP Gujarat
Page 59 of 84
Annexure P-6
No. 11011/44/2020/NIA
Government of India
Ministry of Home Affairs
CTCR Division
In FIR No.23/2020
North Block, New Delhi
Dated, the 28 June, 2021
ORDER
Whereas, in exercise of the powers conferred under
sub- section (5) of section 6 read with section 8 of the NIA
Act, 2008, the Central Government has, by order No
11011/44/2020/NIA dated 29.06.2020, directed the NIA to
take up investigation of a case Crime No. 01/2018 dated
12.08.2018 registered at PS ATS, Gujarat under sections
8(c), 21(c), 24, 25, 27(A) & 29 of Narcotic Drugs and
Psychotropic Substances (NDPS) Act relating to seizure of
4.949 kg of heroin worth approximately Rs 15 crore by
Gujarat ATS from Salaya village, District Devbhoomi
Dwarka of Gujarat, from the possession of arrested accused
Aziz Abdul Bhagad r/o Salaya Check Post; District Dwarka,
And whereas, the NIA, vide Its ID No. 18/PD/03
cases/ATS/NIA/DLI/2020/(468)/7662 dated 18.06.2021,
has forwarded a report stating that FIR No.23/2020 dated
31.01.2020 registered at PS STF, Amritsar, Punjab, under
sections 21, 25, 27 & 29 of NDPS Act is a connected offence.
Whereas, Section 8 of the NIA Act, 2008 provides that
“while Investigating any Scheduled Offence, the Agency may
also Investigate any other offence which the accused is
alleged to have committed, if the offence is connected with
the Scheduled Offence”.
Page 60 of 84
And therefore, in continuation of the order No
11011/44/2020/NIA dated 29.06.2020, which directs the
NIA to take up the investigation under section 6(5) read with
section 8 of the NIA Act, 2008, the NIA may Investigate the
FIR No.23/2020 dated 31.01.2020 as per the provision of
section 8 of the National Investigation Agency Act, 2008.
Sd/-
(Kshitish Kumar)
Under Secretary to the Govt. of India
To
1. The Director General, National Investigation Agency,
CGO Complex, Lodhi Road, New Delhi.
2. The Chief Secretary to the Government of Punjab.
3. DGP, Punjab
Annexure P-9
No. 11011144/2020/NIA
Government of India
Ministry of Home Affairs
CTCR Division
North Block, New Delhi
Dated, the 12th October, 2021
ORDER
Whereas, in exercise of the powers conferred under
sub-section (5) of section 6 read with section 8 of the NIA
Act, 2008, the Central Government has, by order
No.11011/44/2020/NIA dated 29 06 2020, directed the
NIA to take up investigation of a case Crime No. 01/2018
dated 12.08.2018 registered at PS ATS, Gujarat under
sections 8(c), 21(c), 24, 25, 27(A) & 29 of Narcotic Drugs
and Psychotropic Substances (NDPS) Act, 1985 relating to
seizure of 4.949 kg of heroin worth approximately Rs 15
Page 61 of 84
crore by Gujarat ATS from Salaya village, District
Devbhoomi Dwarka of Gujarat, from the possession of
arrested accused Aziz Abdul Bhagad R/o Salaya Check
Post, District Dwarka. The NIA re-registered the above said
case as RC/26/2020/NIA/DLI dated 02.07.2020 under
sections 8(c), 21 (c), 24, 25, 27(A) & 29 of Narcotic Drugs
and Psychotropic Substances (NDPS) Act, 1985 and
sections 17 & 18 of the Unlawful Activities (Prevention) Act,
1967;
And whereas, the NIA, vide its ID No.18/PD/03
cases/ATS/NIA/D11/2020/(468)/7662 dated 18.06.2021,
had forwarded a report stating that FIR No.23/2020 dated
31.01.2021 registered at PS STF, Amritsar, Punjab, under
sections 21, 25, 27 & 29 of the NDPS Act is a connected
offence with RC/26/2020/NIA/DLI dated 02.07.2020 of the
NIA and the case was transferred to the NIA, vide order of
even no, dated 28.06.2021;
And whereas, the NIA, vide its ID No.
18/PD/03cases/ATS/Gujarat/NIA/DLI/2020/(468)/1613
6 dated 28.09.2021, has forwarded a report stating that FIR
No.20/2020 dated 29.01 2020 registered at PS STF, SAS
Nagar, Amritsar, Punjab, under sections 21 of the NDPS Act
and 25 of the Arms Act, is a connected offence with
RC/26/2020/NI//DLI dated 02.07.2020 of the NIA;
Whereas, Section 8 of the NIA Act, 2008 provides that
“While investigating any Scheduled Offence, the Agency
may also investigate any other offence which the accused is
alleged to have committed, if the offence is connected with
the Scheduled Offence”.
And therefore, in continuation of the order No.
11011/44/2020/NIA dated 29.06.2020 and 28.06.2021,
which directs the NIA to take up the investigation under
section 6(5) read with section 8 of the NIA Act, 2008, the
NIA may investigate the FIR No.20/2020 dated 29.01.2020
Page 62 of 84
registered at PS STF, SAS Nagar, Amritsar, Punjab, as per
the provision of section 8 of the National Investigation
Agency Act, 2008
Sd/-
(Rajeev Kumar)
Under Secretary to the Government of India
To
1. The Director General, National Investigation Agency,
CGO Complex, Lodhi Road, New Delhi
2. Chief Secretary to the Government of Punjab
3. DGP, Punjab”
8.1 Annexure P-4 is an order dated 29.06.2020 by which, the first
respondent, on receipt of information regarding the registration of
FIR No.01/2018 dated 12.08.2018 at Police Station Anti-Terrorist
Squad (PS ATS), Ahmedabad, Gujarat under Sections 8(c), 21(c), 24,
25, 27A and 29 of NDPS Act relating to seizure of 4.949 kg of heroin
worth approximately Rs.15 crore by Gujarat ATS from the
possession of the arrested accused Aziz Abdul Bhagad who, having
brought a total 300 kg of heroin in two rounds through the sea route
in his own ship had given it to another accused, was of the opinion
that Sections 17 and 18 of UAPA are attracted to the case. The
offences under Sections 17 and 18 of the UAPA being Scheduled
Page 63 of 84
Offences under NIA Act, the Central Government was of the opinion
that the said offence had grave national and international
ramifications and therefore, it was required to be investigated by the
NIA in accordance with the NIA Act. Therefore, in exercise of the
powers conferred under sub-section (5) of Section 6 of the NIA Act,
the Central Government directed the NIA to take up investigation of
the aforesaid case i.e. under Sections 17 and 18 of the UAPA which
are Scheduled Offences and in respect of which the offences
registered under FIR No.1/2018 dated 12.08.2018 at PS ATS,
Ahmedabad, Gujarat are connected with the Scheduled Offences.
8.2 Thereafter, Annexure P-6 order dated 28.06.2021 was passed
by the Central Government in exercise of power under sub-section
(5) of Section 6 read with Section 8 of the NIA Act in the backdrop
of order dated 29.06.2020 and in continuation thereof. During the
course of investigation as per the aforesaid order, NIA had
forwarded a report vide ID No.18/PD/03cases/ATS/NIA/DLI
/2020/(468)/7662 dated 18.06.2021 stating that FIR No.23/2020
dated 31.01.2020 registered at PS STF, Amritsar, Punjab under
Page 64 of 84
Sections 21, 25, 27 and 29 of NDPS Act is an offence connected with
the Scheduled Offence. That having regard to Section 8 of NIA Act
and in continuation of Order No.11011/44/2020/NIA dated
29.06.2020, it was ordered by the Central Government that the NIA
may investigate FIR No.23/2020 dated 31.01.2020 as per the
Section 8 of the NIA Act.
8.3 In the same vein, the Central Government, by its order dated
12.10.2021, in continuation of the order dated 29.06.2020 and
28.06.2021, on the basis of the report forwarded by NIA vide its ID
No.18/PD/03/cases/ATS/Gujarat/NIA/DLI/2020/(468)/16136
dated 28.9.2021 stating that FIR No.20/2020 dated 29.01.2020
registered at Police Station STF, District STF Wing, Amritsar,
Punjab is a connected offence with RC/26/2020/NI//DLI dated
02.07.2020 of the NIA by invoking Section 8 directed that the NIA
may investigate the FIR No.20/2020 dated 29.01.2020 registered at
PS STF, SAS Nagar, Mohali, Punjab.
Page 65 of 84
8.4 For ready reference, the relevant details as to the accused
under the three FIRs and charge-sheets filed before the transfer of
FIR No.23/2020 to the NIA are culled out from the record as under:
ACCUSED IN FIRST INFORMATION REPORTS
FIR No.01/ 2018 FIR No. RC FIR No. 20/2020 FIR No. 23/2020
dt. 12.08.2018 26/2020/NIA/DLI dt. 29.01.2020 dt. 31.01.2020
dt. 02.07.2020
(renumbered FIR No.
PS. ATS, Dist. 01/2018) PS STF, SAS PS STF, Amritsar,
Ahmedabad, PS NIA Hqrs, New Delhi Nagar, Mohali, Punjab
Gujarat Punjab
Aziz Abdul Aziz Abdul Bhagad Happy Ankush Kapoor
Bhagad
Rafik Adham Sumra Sukhwinder
Singh
Nazir Ahmad Major Singh
Arshad @ Raja Dubai Tamanna Gupta
Manzoor Ahmad Afghanistani
Arman Basher
Mul
Razak Adam Sumra Simarjeet Singh
Sandhu
Sunil Vithal
Ukandrao
Karim Mhd. Siraj.
Wanted accused
person:
Sahid Kasambhal
Sumra
Wanted accused
person:
Simaranjit Singh
Sarabjit Singh
Sandhu
Wanted accused
person:
Haji Sab Bhaijaan
Page 66 of 84
FIR No.01/ 2018 FIR No. RC FIR No. 20/2020 FIR No. 23/2020
dt. 12.08.2018 26/2020/NIA/DLI dt. 29.01.2020 dt. 31.01.2020
dt. 02.07.2020
(renumbered FIR No.
PS. ATS, Dist. 01/2018) PS STF, SAS PS STF, Amritsar,
Ahmedabad, PS NIA Hqrs, New Delhi Nagar, Mohali, Punjab
Gujarat Punjab
Wanted accused
person:
Pakistani national –
Nabibax
Wanted accused
person:
Pakistani Persons
Haji sab @ Bhaijan,
who brought the
heroin in ship
through sea route
from Pakistan, their
names and address
not knownACCUSED IN CHARGE SHEETS
Charge Charge Sheet Supplementary Supplementary
Sheet dt. dt. 18.07.2020 Charge Sheet No. Charge Sheet No.
11.06.2020 in FIR No. 18/2020 dt. 18(A)/2021 dt.
in FIR No. 23/2020 07.08.2020 filed by 24.05.2021 filed
20/2020 NIA in FIR No. RC- by NIA in FIR No.
26/2020/NIA/DLI RC-
26/2020/NIA/DLI
Sukhbir Arman Bashar Aziz S/o Abdul Indresh Kumar
Singh alias Mall Bhagad (Accused No. 9)
Happy (Accused No. 1) (Accused No. 1)
(Accused No.
1)
Ankush Sukhwinder Rafik
Kapoor Singh (Accused No. 2)
(Petitioner) (Accused No. 2)
(Accused No.
2)
Sukhwinder Major Singh Nazir Ahmad
Singh (Accused No. 3) (Accused No. 3)
(Accused No.
3)
Page 67 of 84
Charge Charge Sheet Supplementary Supplementary
Sheet dt. dt. 18.07.2020 Charge Sheet No. Charge Sheet No.
11.06.2020 in FIR No. 18/2020 dt. 18(A)/2021 dt.
in FIR No. 23/2020 07.08.2020 filed by 24.05.2021 filed
20/2020 NIA in FIR No. RC- by NIA in FIR No.
26/2020/NIA/DLI RC-
26/2020/NIA/DLI
Major Singh Miss Tamanna Arshad @ Raja Dubai
(Accused No. Gupta (Accused No. 4)
4) (Accused No. 4)
Mantej Singh Mantej Singh Manzoor Ahmad
(Accused No. (Accused No. 5) (Accused No. 5)
5)
Tamanna Indresh Kumar Razak
Putri Rakesh (Accused No.6) (Accused No. 6)
Gupta
(Accused No.
6)
Arman Sukhbir Singh Karim
Bashar Mall alias Happy (Accused No. 7)
(Accused No. (Accused No.7)
7)
Kuldeep Ankush Kapoor Sunil Vithal Barmase
Singh (Accused No.8) (Accused No. 8)
(Accused No.
8)
Malkit Singh Hanitpal Singh Shahid Kasam Sumra
(Accused No. (Accused No. 9) (Wanted Accused-1)
9)
Accused Sahil Sharma Simranjit Singh
which were (Accused No. Sarabjit Singh
not 10) Sandhu
challaned: (Wanted Accused-2)
Simranjit
Singh
Sandhu
Accused Gagandeep Indresh
which were Singh (Wanted Accused-3)
not
challaned:
Page 68 of 84
Charge Charge Sheet Supplementary Supplementary
Sheet dt. dt. 18.07.2020 Charge Sheet No. Charge Sheet No.
11.06.2020 in FIR No. 18/2020 dt. 18(A)/2021 dt.
in FIR No. 23/2020 07.08.2020 filed by 24.05.2021 filed
20/2020 NIA in FIR No. RC- by NIA in FIR No.
26/2020/NIA/DLI RC-
26/2020/NIA/DLI
Tanveer
Singh Bedi
Accused Anwar Masih Haji Sab alias
which were Bhaijaan
not (Wanted Accused-4)
challaned:
Baijaan
Accused who Pakistani national –
were not Nabibaksh
challaned: (Wanted Accused-5)
Simranjit
Singh Sandhu
Accused who 10 Pakistani
were not Nationals of Haji saab
challaned: @ Bhaijan, whose
names and addresses
Tanvir Singh are not known who
transported smuggled
narcotic drug heroin
in the Pakistani
vessel to India
Accused who
were not
challaned:
Sunil Vithal
Baramas
Accused who
were not
challaned:
Karim
Mohammad
Siraj
Page 69 of 84
Charge Charge Sheet Supplementary Supplementary
Sheet dt. dt. 18.07.2020 Charge Sheet No. Charge Sheet No.
11.06.2020 in FIR No. 18/2020 dt. 18(A)/2021 dt.
in FIR No. 23/2020 07.08.2020 filed by 24.05.2021 filed
20/2020 NIA in FIR No. RC- by NIA in FIR No.
26/2020/NIA/DLI RC-
26/2020/NIA/DLI
Accused who
were not
challaned:
Razaq Adam
Sumra
Accused who
were not
challaned:
Arjan
Accused who
were not
challaned:
Bhaijaan
8.5 The connection that is sought to be made between FIR
No.23/2020 dated 31.01.2020 registered at Police Station STF,
District STF Wing, Amritsar, Punjab and FIR No.20/2020 dated
29.01.2020 registered at PS STF, SAS Nagar, Mohali, Punjab is with
FIR No.01/2018 dated 12.08.2018 at PS ATS, Ahmedabad, Gujarat
in respect of which Sections 17 and 18 of the UAPA were invoked
which are Scheduled Offences.
8.6 The common thread between the aforesaid three orders issued
by the Central Government in exercise of powers under sub-section
Page 70 of 84
(5) of Section 6 read with Section 8 of the NIA Act is that all these
offences relate to various provisions of the NDPS Act namely,
Sections 8(c), 21(c), 24, 25, 27A and 29 as well as Sections 21, 25,
27 and 29 of NDPS Act. Therefore, the offences registered in FIR
No.1/2018 dated 12.08.2018 at PS ATS, Ahmedabad, Gujarat
(Gujarat case) and the offences registered against the petitioner
herein under FIR No.20/2020 dated 29.01.2020 and under FIR
No.23/2020 dated 31.01.2020 all being under the NDPS Act and in
view of the connectedness of the offence under NDPS Act with the
Scheduled Offence in Gujarat FIR No.01/2018 in respect of which
the Central Government was of the opinion that the provisions of
Sections 17 and 18 of the UAPA (Scheduled Offences under the NIA
Act) were also attracted as a result, the Central Government
directed the NIA to investigate into the Scheduled Offences (Sections
17 and 18 of the UAPA) on the basis of the initial order passed under
sub-section (5) of Section 6 of the NIA Act on 29.06.2021.
8.7 Accordingly, when the NIA was investigating into the
Scheduled Offences in the Gujarat case, it forwarded reports to the
Page 71 of 84
Central Government in respect of FIR No.23/2020 registered at
Police Station STF, District STF Wing, Amritsar, Punjab dated
31.01.2020 and FIR No.20/2020 dated 29.01.2020 registered at PS
STF, SAS Nagar, Mohali, Punjab under the provisions of the NDPS
Act. On a consideration of the said reports and on the strength of
Section 8 of the NIA Act, the Central Government passed orders to
investigate into the offences alleged against the petitioner herein on
the premise that those offences have a connection with the
Scheduled Offences.
8.8 It is apparent that before the date of directing NIA to
investigate FIR No.23/2020 i.e. 28.06.2021, two Supplementary
Charge-Sheets had been filed by the NIA. One on 07.08.2020,
wherein Simarjeet Singh Sandhu and Indresh Kumar were arrayed
as WA-2 and WA-3 respectively. Another Supplementary Charge-
Sheet was filed on 24.05.2021, wherein Indresh Kumar, who is
ascribed the role of driver of the truck which was apprehended by
STF Amritsar, was transposed from WA-3 to Accused No.9.
Therefore, before the order dated 28.06.2021 passed by the Central
Page 72 of 84
Government and invocation of powers under Section 6(5) read with
Section 8 of the NIA Act directing investigation of FIR No.23/2020
dated 31.01.2020, there were at least two accused persons in the
ongoing investigation of the Scheduled Offences who were also
named in the aforesaid FIRs filed in the State of Punjab.
8.9 We therefore find that the impugned orders of the Central
Government are in accordance with sub-section (5) of Section 6 read
with Section 8 of the NIA Act. This is because on a reading of the
impugned orders, we find there is a connection, nexus and a link
which has been brought out between the Scheduled Offences
investigated by the NIA under Sections 17 and 18 of UAPA pursuant
to order dated 29.06.2020 and subsequently under the orders dated
28.06.2021 and 12.10.2021 insofar as the offences alleged against
the petitioner herein under the provisions of the NDPS Act are
concerned. It is precisely for circumstances such as in the present
case that Section 8 enables the NIA to investigate into even non-
scheduled offences or any other offence of which an accused has
been alleged to have been committed provided they are connected
Page 73 of 84
with any Scheduled Offence (Sections 17 and 18 of the UAPA in the
instant case) vide Schedule to NIA Act.
Hence, in this case, Annexures P-6 and P-9 have been issued
by the Central Government by exercising power under sub-section
(5) of Section 6 read with Section 8 of the NIA Act and in
continuation of Annexure ‘P-4’. Therefore, we do not find any
reason to quash the impugned orders at Annexures P-4, P-6 and P-
9 issued by respondent No.1. The writ petition is hence liable to be
dismissed and is dismissed.
8.10 In view of the aforesaid discussion, we find that the NIA was
justified in seeking cancellation of bail granted to the petitioner
herein by the High Court in respect of the offences alleged against
him under the provisions of the NIA Act in the State of Punjab. This
is because the said offences are now being investigated by the NIA
and there is also transfer of the trial from the concerned Special
Court in the State of Punjab to the Special Court in the State of
Gujarat, to be tried along with Scheduled Offences under Sections
17 and 18 of the UAPA as per Section 14 of the NIA Act. Therefore,
Page 74 of 84
the special leave petition is also liable to be dismissed and is
dismissed. The interim relief granted to the petitioner vide order
dated 07.03.2024 and extended from time to time stands vacated.
Epilogue:
The Ripple Effects of Illicit Drug Trade and Drug Abuse:
9. Before parting with these cases, although we are mindful that
the present matter concerns cancellation of bail and challenge to
the Central Government Orders directing the NIA to investigate
certain offences under the provisions of NDPS Act against the
petitioner here, we would like to record our earnest disquiet about
the proliferation of substance abuse in India.
9.1 The ills of drug abuse seem to be shadowing the length and
breadth of our country with the Central and every State
Government fighting against the menace of substance abuse. The
debilitating impact of drug trade and drug abuse is an immediate
and serious concern for India. As the globe grapples with the
menace of escalating Substance Use Disorders (“SUD”) and an ever
accessible drug market, the consequences leave a generational
Page 75 of 84
imprint on public health and even national security. Article 47 ofthe Constitution makes it a duty of the State to regard the raising
of the level of nutrition and the standard of living of its people and
the improvement of public health as among its primary duties and
in particular the State shall endeavour to bring about prohibition of
the consumption except for medicinal purposes of intoxicating
drinks and of drugs which are injurious to health. The State has a
responsibility to address the root causes of this predicament and
develop effective intervention strategies to ensure that India’s
younger population, which is particularly vulnerable to substance
abuse, is protected and saved from such menace. This is
particularly because substance abuse is linked to social problems
and can contribute to child maltreatment, spousal violence, and
even property crime in a family.
9.2 Despite the efforts of the State, an unprecedented scale of
coordination and profit seeking has sustained this menace so hard-
hitting and multifaceted that it causes suffering cutting across age
groups, communities, and regions. Worse than suffering and pain,
Page 76 of 84
is the endeavour to profit from it and use the proceeds thereof for
the committing of other crimes against society and the State such
as conspiracy against the State and funding terrorist activities.
Profits from drug trafficking are increasingly used for funding
terrorism and supporting violence.
9.3 From heroin and synthetic drugs to prescription medication
abuse, India is grappling with an expanding drug trade and a rising
addiction crisis. The Ministry of Social Justice and Empowerment’s
2019 Report (“MoSJE 2019 Report”) on ‘Magnitude of Substance Use
in India’ revealed that nearly 2.26 crore people use opioids in India.
It was also borne out that substance use exists in all the population
groups; however, adult men bear the brunt of substance use
disorders. After alcohol, cannabis and opioids are the next most
commonly used substances in India. About 2.8% of the population
(3.1 crore individuals) reported having used cannabis and its
products, of which 1.2% (approximately 1.3 crore persons) was
illegal cannabis and its products.
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9.4 Alarmingly, the rate of opioid dependence is pacing at an
alarming rate, partly due to the ongoing narcotic trade across the
country’s borders and their consequent ease of availability.
According to the MoSJE 2019 Report, there are approximately 77
lakh problem opioid users – the Report defines “problem users” as
those using the drug in harmful or dependent pattern in India. More
than half of 77 Lakh problem opioid users in India are spread
throughout the States of Uttar Pradesh, Punjab, Haryana,
Maharashtra, Madhya Pradesh, Delhi, Andhra Pradesh, West
Bengal, Rajasthan and Orissa.
9.5 Studies across the globe suggest that easy access to narcotic
substances, peer pressure, and mental health challenges
particularly in the context of academic pressure and family
dysfunction could be significant contributors to this disturbing
trend. Addiction at a young age can derail academic, professional
and personal aims, leading to long-term socio-economic instability
of almost an entire generation. The psychological impact of drug
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abuse, including depression, anxiety, and violent tendencies,
further exacerbates the problem.
9.6 The reasons behind this rise in juvenile addiction are
complex. Peer pressure, lack of parental affection, care and
guidance, stress from academic pressures and the easy availability
of drugs contribute to this alarming trend. In many cases,
adolescents resort to drugs as a form of escapism, trying to cope
with personal and emotional issues.
9.7 Preventing drug addiction among adolescents requires a
concerted effort from multiple stakeholders: parents and siblings,
schools and the community. Given the disturbing rise in adolescent
drug use, urgent interventions are needed.
9.8 The MoSJE 2019 Report found that only one among four
persons suffering from dependence on illicit drugs had ever received
any treatment and only one in twenty persons with illicit drug
dependence ever received any in-patient treatment. Given the scale
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of the issue, there is need for a more comprehensive view of the
solutions to the grave problem.
Parents:
9.9 Parents have a crucial role in the prevention of drug abuse
among adolescents. Parental awareness, communication, and
support are key in mitigating the risk of drug addiction. The first
step in the effective preventive leap should start within the
household. In our view, the most important yearning of children is
love and affection and a sense of security emanating from parents
and family. Domestic violence and discord between parents; lack of
time being spent by parents with children due to various reasons
and compensating the same by pumping pocket money are some of
the reasons why young adolescents are being veered towards
escapism and substance abuse. Affectionate and friendly
conversations between parents and children and a continuous
assessment of the direction in which a child is proceeding is a duty
which each parent must undertake. This is to build a sense of
emotional security around a child for, in our view, an emotionally
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secure child would not become vulnerable and be lured towardssubstance abuse as a possible path towards seeking what is lacking
in life. No longer should drug abuse be treated as a taboo that
parents disengage from. Instead, open discussions about drug use
and its ill consequences will provide parents and children a safe
space and equip children with the knowledge to help themselves out
of peer pressure.
Schools and Colleges:
9.10 Of equal importance is the need for schools and colleges to
aid the government programs in educating students about the perils
of drug abuse. They must include prevention of drug abuse in their
curriculum, focusing on the physical, emotional, and legal
consequences of drug abuse. Naturally, all efforts should be backed
by scientific evidence and experiential learning. It is an urgent need
that the Ministry of Social Justice and Empowerment’s framework
of National Action Plan for Drug Demand Reduction and other
programs are given a boost and truly imbibed in drug education
programs run by schools and colleges in the country.
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Local Communities and NGOs:
9.11 Local communities should work with NGOs and law
enforcement agencies to create awareness campaigns that address
the risks of drug abuse with a special focus on schools and youth
centres. Either through awareness campaigns, community
outreach or peer education, communities can play a critical role in
creating knowledgeable safe space that curb the use of drugs.
NALSA:
9.12 The National Legal Services Authority and State Legal
Authorities must devise awareness programs and implement them
particularly in vulnerable regions of the States and territories more
exposed to drug menace.
NCPCR and NCB:
9.13 There is a need for more synergies along the lines of Joint
Action Plan on “Prevention of Drugs and Substance Abuse among
Children and Illicit Trafficking” developed by the National
Commission for Protection of Child Rights (“NCPCR”) in
collaboration with Narcotics Control Bureau (“NCB”).
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To the Youth of India:
9.14 For youngsters just beginning to explore the world, the
consumption of drugs in popular culture has propelled the cultural
push towards a dangerous lifestyle, one that incorrigibly applauds
drugs use as ‘cool’ and a fashionable display of camaraderie. We
implore the youth to take charge of their decisional autonomy and
firmly resist peer pressure and desist from emulation of certain
personalities who may be indulging in drugs.
9.15 It is sad that vulnerable children turn to drugs as an escapism
from emotional distress and academic pressures or due to peer
pressure. The unfortunate reality is that victims of substance abuse
are not limited to the unfortunate ones who have fallen prey to it
but also include their family and peers. Our approach towards the
victims of drug abuse must not be to demonize the victims but to
rehabilitate them.
9.16 Deep-rooted in our constitutional philosophy and social
fabric is the vision to facilitate every citizen to be a constructive
citizen, the best they can be. This vision hopes that the State’s
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obligation is met with a commitment to contribute as constructivecitizens to the nation’s development. Part and parcel of this
constructive citizenship is the positive aspect of uplifting oneself
and those around towards a more participative polity and dynamic
economy. Inextricably linked to this commitment is also the
negative aspect of constructive citizenship, that is, to actively refrain
from contributing against the interest of the community and the
nation. It is a need of the times that the end consumers of the illicit
drug trade exercise community-friendly decision making and refuse
to sustain the bottom-line of drug traffickers.
9.17 The arc and web of drug trade cannot be permitted to
corrode the shine of the youth of India!
. . . . . . . . . . . . . . . . . . . . . . . . . . J.
[B.V. NAGARATHNA]
. . . . . . . . . . . . . . . . . . . . . . . . . . . J.
[NONGMEIKAPAM KOTISWAR SINGH]
NEW DELHI;
DECEMBER 16, 2024.
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