Punjab-Haryana High Court
National Investigation Agency vs Ankush Vipan Kapoor on 29 January, 2024
Author: Manjari Nehru Kaul
Bench: Manjari Nehru Kaul
Neutral Citation No:=2024:PHHC:010992
2024: PHHC: 010992
212
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.24743 of 2023
Reserved on : 18th January, 2024
Date of pronouncement : 29th January, 2024
National Investigation Agency
... Petitioner
Versus
Ankush Vipan Kapoor
... Respondent
CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL
Argued by: Mr. Sukhdeep Singh Sandhu, Advocate
(NIA Spl. Prosecutor) for the petitioner.
Mr. Vipul Jindal, Advocate for the respondent.
MANJARI NEHRU KAUL, J.
1. The petitioner-NIA is seeking cancellation of bail granted to
the respondent vide order dated 05.07.2021 (Annexure P-3) passed by
this Court in CRM-M No.23889 of 2021 in case bearing FIR No.20 dated
29.01.2020 under Sections 21, 25, 27-A, 29, 85 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (hereinafter referred to as,
'NDPS Act') and Sections 30, 53, 59 of the Arms Act, 1959 registered at
Police Station Special Task Force, District STF Wing, SAS Nagar,
Mohali.
2. Brief facts of the case:
A. Cases in Punjab
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(i) FIR No.20 dated 29.01.2020 under Sections 21, 25, 27-A,
29, 85 of the NDPS Act and Sections 30, 53, 59 of the
Arms Act, 1959 was registered at Police Station STF,
District STF Wing, SAS Nagar, Mohali against one
Sukhbir Singh @ Happy on the statement of AIG Rachpal
Singh; it was alleged that Sukhbir Singh @ Happy was
dealing in illegal weapons and Heroin, and since he was
present in the city of Amritsar, he could be arrested if
timely action was taken. Acting on the said information,
the Special Task Force (STF) arrested him after raising a
special barricade/naka and on his search, one revolver of
0.32 bore along with live cartridges and six boxes of
Heroin weighing 5.690 kilograms was recovered.
(ii) During interrogation of Sukhbir Singh @ Happy, the name
of the respondent/accused surfaced; accused Sukhbir
Singh @ Happy disclosed that the car in which he had
been caught (i.e. Brezza bearing registration No.PH-02-
DJ-0279) belonged to the respondent/accused and had
been given to him for onward delivery to a special person,
code named 'Baba Jani'. On the same day i.e. 29.01.2020,
the respondent/accused was arrested from his shop 'R.C.
Creations' at Crystal Chowk, Amritsar; in pursuance of his
disclosure statement, the STF recovered Heroin weighing
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3.250 kgs, 3 transparent plastic bags along with a can
containing ammonia solution, one plastic bag containing
500 grams of codeine charcoal powder and one plastic
bottle containing 500 ml of hydrochloride acid from a
wooden almirah of his house. The STF thereafter,
recorded a second disclosure statement of the
respondent/accused on 07.02.2020, pursuant to which a
mobile phone was recovered, wherein some WhatsApp
conversations for sending and receiving consignments
were uncovered. On 11.02.2020, the STF recorded a third
disclosure statement of the respondent/accused, as a result,
two additional mobile phones were recovered, allegedly
used to exchange information through coded language for
the procurement and delivery of Heroin.
(iii) On 31.01.2020, FIR No.23 dated 31.01.2020 under
Sections 21, 25, 27-A, 29 of the NDPS Act was registered
at Police Station STF, District STF Wing, Amritsar on the
statement of Rashpal Singh AIG, STF Border Range,
Amritsar; as per the allegations leveled in this FIR, AIG
Rashpal Singh received a secret information that the
respondent/ accused along with his associates Sukhwinder
Singh, Major Singh, Tamanna Gupta, Imran Bashar mal
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and others had stored Heroin in huge quantity in the area
of Sultanwind, Amritsar for further delivery.
(iv) Further, the name of co-accused Simranjeet Singh Sandhu
alias Simar also emerged, revealing that this accused had
international connections and was engaged in the
exchange of money through Hawala transactions.
Subsequent to the registration of the FIR No.23 of 2020,
the respondent/accused was arrested and recovery of 188
kgs 950 grams Dextromethorphan Powder, 25 kgs 965
grams Caffeine, 3 kgs Charcoal, 207 kgs 120 grams
intoxicant liquid chemical and other instruments for
preparation of Heroin was effected from House No.127-
130, Akash Vihar, Sultanwind, Amritsar.
(v) After conclusion of the investigation in both the above
mentioned FIRs bearing No.20 and 23, final reports under
Section 173 Cr.P.C. were presented before the Court of
competent jurisdiction.
B. Grant of bail to the respondent/accused by this Court in
FIR No.20 dated 29.01.2020 u/s 21, 25, 27-A, 29, 85 of the
NDPS Act and Sections 30, 53, 59 of the Arms Act, 1959
registered at Police Station STF, District STF Wing, SAS
Nagar, Mohali
The respondent/accused filed a petition bearing CRM-M
No.23889 of 2021 under Section 439 Cr.P.C. for grant of the concession
of regular bail in the aforementioned FIR and the said petition was
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allowed by this Court vide order dated 05.07.2021 (Annexure P-3) and
the respondent/accused was thereafter, enlarged on bail.
C. Grant of bail to the respondent/accused by this Court in
FIR No.23 dated 31.01.2020 under Sections 21, 25, 27-A,
29 of the NDPS Act registered at Police Station STF,
District STF Wing, Amritsar:
The respondent/accused filed another petition by way of
CRM-M No.27365 of 2021 seeking grant of the concession of regular
bail under Section 439 Cr.P.C. in the aforesaid FIR and the said petition
was also allowed by this Court vide order dated 21.09.2021 (Annexure R-
5).
D. Anti-Terrorist Squad (ATS) Cases in Gujarat
Before the registration of the abovementioned FIRs bearing
No.20 and 23 in the State of Punjab, another case bearing crime
No.01/2018 under Sections 8(c), 21(c), 24, 25, 27(A) and 29 of the NDPS
Act already stood registered on 12.08.2018 at Police Station Anti-
Terrorist Squad (ATS), Ahmedabad, Gujarat involving a criminal
conspiracy by the arrested accused therein, namely Aziz (A-1), Rafik (A-
2), Nazir Ahmad (A-3), Arshad alias Raju Dubai (A-4), Manzoor Ahmad
Mir (A-5), Razak Adam Sumra (A-6), Karim Mohammed Siraj (A-7),
Sunil Vitthal Barmase (A-8) and Sukhbir Singh @ Happy (A-10) as well
as some wanted accused namely Shahid Hussain Kasam Sumra (WA-1),
Simranjeet Singh Sandhu alias Simar (WA-2), Haji Saab alias Bhaijan
(WA-4), Nabi Baksh (WA-5), Basheer Dawood Kungda alias Raja
Kathiyara (WA-7). This case pertained to the smuggling and distribution
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of 500 kgs of narcotics, which had been illicitly transported from
Pakistan to Gujarat via the sea route. The huge consignment of Heroin,
weighing 500 kgs, was brought by Pakistani nationals in a fishing vessel
and was then transferred to an Indian vessel of the accused within the
territorial waters of India during the period from 09.03.2018 to
31.05.2018. Following a comprehensive investigation, ATS Gujarat filed
police report before the Special NDPS Court, Jam Khambalia, Gujarat on
23.01.2019. Subsequently, during further investigation, three more
persons, including Sunil Vitthal Barmase (A-8), who were also part of the
same drug syndicate, were arrested by the ATS.
E. Transfer of investigation to NIA
Given the seriousness and scale of the offences in the
aforementioned case registered in the State of Gujarat with national and
international implications, the Ministry of Home Affairs, Govt. of India,
while exercising its powers under Sections 6 and 8 of the National
Investigation Agency Act, 2008 (hereinafter referred to as, 'the NIA
Act'), issued a directive/order dated 29.06.2020 bearing
No.11011/44/2020/NIA (Annexure P-4) and 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, 27(A) and 29 of the NDPS Act and sections 17 & 18 of the
Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as,
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'UAPA'), and accordingly, took over the investigation from the ATS
Gujarat.
F. Further investigation by NIA in cases registered by ATS
After registration of the case, NIA carried out further
investigation. Subsequently, the physical custody of all the arrested
accused (A-1 to A-8) was obtained from the Special NDPS Court, Jam
Khambalia, Gujarat and transferred to the NIA Special Court,
Ahmedabad, Gujarat. During investigation by the NIA, and the evidence
collected, it was revealed that there was a larger conspiracy at play. This
involved a smuggling of a huge quantity of narcotics i.e. Heroin from
Pakistan into India. The proceeds from the contraband were being
utilized for funding terrorist activities. Based on the evidence collected,
the NIA filed a supplementary police report before the NIA Special
Court, Ahmedabad, Gujarat against the aforesaid accused (A-1 to A-8)
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 Unlawful Activities
(Prevention) Act, 1967 (hereinafter referred to as, 'UAPA').
Further investigation revealed that Simranjeet Singh Sandhu
alias Simar (WA-2) from Punjab, had, through his links in Pakistan
procured 500 kgs of Heroin from Pakistan, transported it into India via a
Port in the State of Gujarat, and subsequently, delivered it to his
associates in Punjab. The funds generated from the sale of Heroin were
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transferred to support terror activities through illegal means including the
Hawala Channel.
G. Storage and transportation of 500 kgs of Heroin
(i) The illegal narcotic drug (Heroin) was brought by
Pakistani nationals in a Pakistani fishing vessel and was delivered in the
Indian territorial waters into an Indian vessel named 'Nagani Mustafa' of
Aziz Abdul Bhagad (A-1) and another boat allegedly belonging to
Mamad Ibrahim Sama (WA-8) during the period from 09.03.2018 to
31.05.2018. The consignment of Heroin was unloaded in a godown in
village Mandvi, Kutch, by Rafik Adam Sumra (A-2), A-11 Shahid
Hussain Kasam Sumra and Razak Adam Sumra (A-6). This pre-planned
conspiracy also involved delivering this consignment to Amritsar. For
transporting this consignment to Punjab, Shahid Hussain Kasam Sumra
(A-11) contacted Razak Adam Sumra (A-6) i.e. brother of Rafik Adam
Sumra (A-2), and Karim Mohammed Siraj (A-7) who agreed to transport
it to Punjab in lieu of monetary considerations. Razak Adam Sumra (A-6)
later recovered the remaining 200 kgs of Heroin from the godown, loaded
it in truck bearing registration No.GJ-12-BW-2323 (belonging to accused
Indresh Rambachan Nishad (A-9)) and transported it to Amritsar.
(ii) The investigation by NIA further unveiled that, out of
the 500 kgs of Heroin allegedly smuggled into India from Pakistan, 295
kgs of Heroin was handed over by A-11 and Rafik Adam Sumra (A-2) to
Nazir Ahmed Lassi Mohammad (A-3), Manzoor Ahmed Mir (A-7) and
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Simranjeet Singh Sandhu alias Simar (WA-2), who concealed and
transported the contraband to Amritsar (Punjab) through Akshar
Transport in sacks of cumin and Suva seeds.
(iii) The NIA, thereafter, took custody of Indresh
Rambachan Nishad (A-9), the truck owner, after he was produced by the
Jail authorities, Amritsar, before the NIA Special Court, Ahmedabad,
Gujarat in pursuance of production warrants. During interrogation,
accused Indresh Rambachan Nishad (A-9) admitted the receipt of 200
kgs of Heroin in Gujarat from Karim Mohammed Siraj (A-7) and Sunil
Vitthal Barmase (A-8) at Gandhi Dham, Gujarat, which had been loaded
into his truck bearing registration No.GJ-12-BW-2323 and also the
transportation of Heroin in 9 bags to Amritsar, which were then collected
by accused Sukhbir Singh @ Happy (A-10) and three others.
(iv) During further investigation, it came to light that
accused Sukhbir Singh @ Happy had been arrested by STF Punjab in FIR
No.20 dated 29.01.2020 under Sections 21, 25, 27-A, 29, 85 of the NDPS
Act and Sections 30, 53, 59 of the Arms Act, 1959 registered at Police
Station STF, District STF Wing, SAS Nagar, Mohali. It was also revealed
that 188 kgs of Heroin out of the total consignment of 200 kgs sent from
Gujarat to Punjab was seized by STF Punjab from a house situated in
Sultanwind Amritsar; pursuant to which FIR No.23 dated 31.01.2020
under Sections 21, 25, 27-A, 29 of the NDPS Act at Police Station STF,
District STF Wing, Amritsar was registered. Still further, truck bearing
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registration No.GJ-12-BW-2323, belonging to accused Indresh
Rambachan Nishad (A-9), was seized and accused Sunil Vitthal Barmase
(A-8) along with some other persons had been arrested by the STF
Punjab in the aforesaid case.
H. Further investigation by NIA in the cases registered in the
State of Punjab
The NIA, after taking over the investigation in FIRs No.20
and 23, carried out further investigation, during which the NIA took the
custody of Sukhbir Singh @ 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 @ Happy revealed the involvement of
respondent/accused and his other close aides namely Major Singh,
Arman, Sukhwinder Singh @ Sukha, Tammana Gupta, Manish Singh,
Manjit Singh, Sahil Sharma, Harminder Singh Randhawa, Arjun Attwal,
Anwar Masih and others in the drug syndicate, who were arrested by the
STF. The aforesaid persons had been involved in the transportation,
storage, purification, delivery and sale of drugs in Amritsar on the
directions of Simranjeet Singh Sandhu alias Simar (WA-2).
I. Dismissal of bail by Hon'ble High Court Gujarat
The respondent/accused moved an application for grant of
anticipatory bail before the NIA Special Court at Ahmedabad, Gujarat,
which was dismissed. Thereafter, he approached the Hon'ble High Court
at Gujarat seeking the concession of anticipatory bail. Vide order dated
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26.09.2022 (Annexure P-7), the Hon'ble Gujarat High Court also
dismissed his prayer for anticipatory bail.
J. Framing of charges against co-accused under UAPA
The NIA, after completion of investigation, submitted challan
before the NIA Special Court at Ahmedabad. The NIA Special Court,
Ahmedabad, finding sufficient material, then framed charges under
Sections 17 and 18 of the UAPA among other Sections vide order dated
18.07.2023 against the following 24 accused:
(1) Aziz S/o Abdul Bhagad (A-1)
(2) Rafik S/o Adham Sumra (A-2)
(3) Nazir Ahmad S/o. Lassi Mahamad Thakar (A-3)
(4) Arshad alias Raju Dubai S/o Abdul Razak Sota (A-4)
(5) Manzoor Ahmad Mir S/o Ali Mahomad Mir (A-5)
(6) Razak Adam Sumra S/o Adam Abdreman Sumra (A-6)
(7) Karim Mohammed Siraj S/o Mohhamad Osman
Mohammad Siraj (A-7)
(8) Sunil Vitthal Barmase S/o Vitthal Ukandrao Barmase (A-8)
(9) Indresh S/o. Rambachan Nishad, (A-9)
(10) Sukhbir Singh @ Happy S/o. Lakhbir Singh, (A-10)
(11) Shahid Hussain Kasam Sumra, (A-11)
(12) Basheer Dawood Kungada @ Raja Kathiyara @ Behra
(A-12)
(13) Mamad Ibrahim Sama, (A-13)
(14) Tamana Gupta D/o. Rakesh Gupta (A-14)
(15) Major Singh S/o. Kulwant Singh, (A-15)
(16) Sahil Sharma S/o. Pradeep Sharma, (A-16)
(17) Anwar Masih S/o. Aziz Masih, (A-17)
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(18) Sukhwinder Singh @ Sukh S/o. Sardar Gurunam Singh,
(A-18)
(19) Mantej Singh @ Mantej Mann @ Micky S/o. Sawinder
Singh, (A-19)
(20) Arman Bassar Mal S/o. Mohammad Dildar, (A-20)
(21) Harminder Singh @ Romi S/o Dalbir Singh Randhava,
(A-21)
(22) Manjit Singh @ Manna S/o Jasbir Singh, (A-22)
(23) Kuldeep Singh S/o Sardul Singh, (A-23)
(24) Malkit Singh S/o Baljit Singh, (A-24)
3. Submissions of learned counsel for the petitioner/NIA
Learned counsel appearing on behalf of the petitioner, in
support of his prayer, has inter alia made the following submissions:
(i) That after this Court granted bail to the respondent vide order
dated 05.07.2021 (Annexure P-3), new evidence has emerged,
revealing his involvement in smuggling 500 kgs of Heroin
from Pakistan to Gujarat and then to Punjab and additionally,
the respondent also being a member of a narco-terrorist
syndicate.
(ii) That the last consignment of 200 kgs of Heroin, part of the
aforementioned 500 kgs of Heroin, was transported from
Gujarat to Amritsar and received by Sukhbir Singh @ Happy
(A-10) with the help of Major Singh (A-15) and Sukhwinder
Singh (A-18) along with one accused Arjun Attwal which was
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done on the directions of Simranjeet Singh Sandhu alias Simar
(WA-2) and respondent/accused Ankush Vipan Kapoor.
(iii) That the respondent/accused was working for accused
Simranjeet Singh Sandhu alias Simar (WA-2) and was
involved in refining and preparing Heroin. He, along with co-
accused Sukhbir Singh @ Happy (A-10) had also purchased
chemicals for purification from Aarti factory, Ludhiana which
was then used for the purpose of purification and preparation
of Heroin. Furthermore and pertinently, a huge recovery of
chemicals used for the purification was effected from the
respondent/accused by STF, pursuant to his first disclosure
statement in FIR No.20 dated 29.01.2020 under Sections 21,
25, 27-A, 29, 85 of the NDPS Act and Sections 30, 53, 59 of
the Arms Act, 1959 registered at Police Station STF, District
STF Wing, SAS Nagar, Mohali.
(iv) That as part of the criminal conspiracy, the respondent/accused
had himself asked Sukhbir Singh @ Happy (A-10) to pick up
and receive accused Arman Bassar Mal, an Afghan national,
from Delhi airport and bring him to Sultanwind, Amritsar for
the purpose of carrying out purification of Heroin; Video clips
of the purification process were forwarded by Sukhwinder
Singh to Simranjeet Singh Sandhu alias Simar (WA-2) through
WhatsApp by the respondent/accused.
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(v) That from the evidence collected by the petitioner, during
investigation it had come to the fore that the
respondent/accused was the main aide of Simranjeet Singh
Sandhu alias Simar (WA-2) and Tanveer Singh Bedi (WA-15);
he had been entrusted with the task of running the operations
of the drug syndicate in Amritsar and had also been managing
their illegal finances. The said fact stood duly corroborated
from the disclosure statement made by co-accused Arman
Bassar Mal, Sukhwinder Singh and others.
(vi) That the involvement of the respondent/accused in a larger
conspiracy, with cross-border implications, was evident from
the huge recovery of Heroin effected from him in connection
with FIR No.20 dated 29.01.2020 under Sections 21, 25, 27-A,
29, 85 of the NDPS Act and Sections 30, 53, 59 of the Arms
Act, 1959 registered at Police Station STF, District STF Wing,
SAS Nagar, Mohali.
(vii) That following the grant of bail to the respondent/accused by
this Court on 05.07.2021, additional serious offences were
added, impacting the socio-economic well-being of the
country. The involvement of the respondent/accused in narco-
terrorism has further exacerbated the situation. Consequently,
the bail granted to the respondent/accused should be cancelled
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as his custodial interrogation had become imperative to
uncover the organized crime operating at an international level.
Moreover, given the involvement of the
respondent/accused in such serious offences, there is a genuine
concern and likelihood that he could abscond and evade the
legal process.
In support, learned counsel has placed reliance upon
'Pradeep Ram vs. State of Jharkhand & another' 2019(3)
RCR (Criminal) 538.
(viii) The order dated 18.07.2023 i.e. order framing charges as well
as the other details of the challan presented has been produced
in this Court today, which has been taken on record subject to
all just exceptions.
4. Submissions made by learned counsel for the
respondent/accused
Learned counsel appearing on behalf of the
respondent/accused, while vehemently controverting the submissions
made by the counsel opposite, has made the following submissions:
(i) That the bail was granted to the respondent by this Court vide
order dated 05.07.2021 after a thorough consideration of the
facts and circumstances of the case including the alleged
recovery of Heroin made from the respondent.
(ii) That mere addition of a few offences should not be a ground
for cancelling the bail granted to the respondent, especially
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when he had not breached any conditions of the bail and
furthermore, when he was willing to join investigation and
cooperate with the investigating agency.
(iii) That there was no substantial evidence or material whatsoever
collected against the respondent, therefore, cancellation of his
bail could not be sought on vague and flimsy grounds on the
basis of a disclosure statement allegedly suffered by co-
accused which to say the least, has very weak evidentiary
value in the eyes of law.
(iv) That co-accused Sukhbir Singh @ Happy, through whom the
respondent was being connected to case FIR No.20 dated
29.01.2020 under Sections 21, 25, 27-A, 29, 85 of the NDPS
Act and Sections 30, 53, 59 of the Arms Act, 1959 registered
at Police Station STF, District STF Wing, SAS Nagar, Mohali,
had not even been charge-sheeted by the petitioner for offences
under the UAPA; therefore, the petitioner could not seek
cancellation of the bail, which had been rightly granted to the
respondent.
(v) That it was not even the case of the petitioner that the
respondent had ever traveled to Gujarat or was present there or
had transported anything, much less Heroin, from Gujarat to
Punjab. The allegations of transportation of narcotic drugs
from Gujarat to Punjab were against the other accused, who
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had allegedly acted on the directions of accused Simranjeet
Singh Sandhu alias Simar. Thus, it left no manner of doubt that
the respondent had no role much less any concern with the
alleged offences. Therefore, the submissions of the learned
counsel for the petitioner that the respondent was running the
operations from Amritsar for the Drug Cartel, were on the face
of it, absurd and baseless.
(vi) That the dismissal of the petition under Section 438 Cr.P.C.
filed by the respondent before the Special Court at Ahmedabad
and the Hon'ble Gujarat High Court was irrelevant, as it
involved an altogether different and separate cause of action
qua the re-registration of an FIR, and was also based on a
genuine apprehension that he would be arrested despite having
been granted the concession of regular bail by this Court.
(vii) That since co-accused Sukhbir Singh @ Happy, who had a
much more grave and pivotal role to play in comparison to the
respondent, had not even been charge-sheeted for any offence
under the UAPA, it could be safely discerned that prima facie
the offences under Sections 17 & 18 of UAPA were not
attracted at all in the present case against the respondent.
Merely because charges under the UAPA stood framed against
co-accused could not lead to an inference that even the
respondent was involved in that case.
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(viii) That the entire petition failed to disclose even a single cogent
ground to arrest the respondent except vague and
unsubstantiated allegations of commission of offences under
the UAPA. The respondent could not be made to suffer in
custody once again for the same offences merely because the
case stood transferred to another investigating agency, as it
would be violative of Article 20 (2) of the Constitution of
India.
(ix) That the respondent is a young family man, who is running his
business and evidently is being falsely roped in the present
case by the State agencies; therefore, a lenient view be taken
and the present petition be dismissed to protect the personal
liberty of the respondent.
5. I have heard learned counsel for the parties and with their
able assistance perused the relevant material placed on record.
6. The special powers of this Court as well as the Court of
Sessions with respect to grant of bail have been provided under Section
439 of the Code of Criminal Procedure. Before proceeding further, it
would be apposite to reproduce Section 439 Cr.P.C.:
"439. Special powers of High Court or Court of Sessions
regarding bail:
(1) A High Court or Court of Sessions may direct,-
(a) that any person accused of an offence and in
custody be released on bail, and if the offence is of
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the nature specified in sub-section (3) of Section
437, may impose any condition which it considers
necessary for the purposes mentioned in that sub-
section;
(b) that any condition imposed by a Magistrate when
releasing any person on bail be set aside or
modified:
Provided that the High Court or the Court of Sessions
shall, before granting bail to a person who is accused of an
offence which is triable exclusively by the Court of Sessions or
which, though not so triable, is punishable with imprisonment
for life, give notice of the application for bail to the Public
Prosecutor unless it is, for reasons to be recorded in writing,
of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Sessions may direct that any
person who has been released on bail under this chapter be
arrested and commit him to custody."
7. Sub-Section (2) of Section 439 Cr.P.C. deals with
cancellation of bail granted to any person under Chapter XXXIII. A bail
granted to a person can be cancelled if there is some breach or violation
of the conditions imposed upon an accused by the Court while granting
bail, or if the order vide which an accused has been granted bail suffers
from patent illegalities and infirmities, and thus, has resulted in
miscarriage of justice. In the present case, the petitioner is not invoking
the provisions of Section 439(2) Cr.P.C. on either of the grounds
mentioned therein. Rather the cancellation of bail of the
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respondent/accused is being sought only on the ground that more serious
and grave offences under the UAPA have been added.
8. The key question which thus arises for consideration of this
Court is, as to whether the bail granted to an accused in a criminal case
can be cancelled due to the subsequent addition of more serious and
severe offences.
9. The Hon'ble Supreme Court, while dealing with a similar
issue regarding cancellation of bail on account of subsequent addition of
offences, in Pradeep Ram's case (supra) held as under:
"29. In view of the foregoing discussions, we arrive at
following conclusions in respect of a circumstance where
after grant of bail to an accused, further cognizable and
non-bailable offences are added:-
(i) The accused can surrender and apply for bail for
newly added cognizable and non-bailable offences. In
event of refusal of bail, the accused can certainly be
arrested.
(ii) The investigating agency can seek order from the
court under Section 437(5) or 439(2) of Cr.P.C. for
arrest of the accused and his custody.
(iii) The Court, in exercise of power under Section
437(5) or 439(2) of Cr.P.C., can direct for taking into
custody the accused who has already been granted
bail after cancellation of his bail. The Court in
exercise of power under Section 437(5) as well as
Section 439(2) can direct the person who has already
been granted bail to be arrested and commit him to
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custody on addition of graver and non-cognizable
offences which may not be necessary always with
order of cancelling of earlier bail.
(iv) In a case where an accused has already been
granted bail, the investigating authority on addition of
an offence or offences may not proceed to arrest the
accused, but for arresting the accused on such
addition of offence or offences it need to obtain an
order to arrest the accused from the Court which had
granted the bail."
10. Further, the Hon'ble Apex Court in 'Ms.X vs. The State of
Maharashtra & another' 2023 LiveLaw (SC) 205, while relying upon
the judgment rendered in Pradeep Ram's case (supra), held as under:
"20. As can be discerned from the observations made in
Pradeep Ram (supra), addition of a serious offence can be a
circumstance where a Court can direct that the accused be
arrested and committed to custody even though an order of
bail was earlier granted in his favour in respect of the offences
with which he was charged when his application for bail was
considered and a favourable order was passed. The recourse
available to an accused in a situation where after grant of
bail, further cognizable and non-bailable offences are added
to the FIR, is for him to surrender and apply afresh for bail in
respect of the newly added offences. The investigating agency
is also entitled to move the Court for seeking the custody of
the accused by invoking the provisions of 437(5)33 and
439(2)34 Cr.P.C., falling under Chapter XXXIIII of the Statute
that deals with provisions relating to bails and bonds. On such
an application being moved, the Court that may have released
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the accused on bail or the Appellate Court/superior Court in
exercise of special powers conferred on it, can direct a person
who has been released on bail earlier, to be arrested and
taken into custody."
11. A bare reading of the above observations made by the
Hon'ble Supreme Court leaves no manner of doubt that a Court in the
exercise of its powers under Section 439(2) of the Cr.P.C. can direct a
person, who has already been granted bail, to be arrested and thereafter,
commit him to custody on account of subsequent addition of more severe
and serious offences. The investigating agency, in such a scenario, is
entitled to seek an order from the Court under Section 437(5) or 439(2) of
the Cr.P.C. as the case may be, for arresting the accused and taking his
custody on addition of such offences.
12. Coming to the case in hand, the respondent was arrayed as an
accused in FIR No.20 dated 29.01.2020 under Sections 21, 25, 27-A, 29,
85 of the NDPS Act and Sections 30, 53, 59 of the Arms Act, 1959
registered at Police Station STF, District STF Wing, SAS Nagar, Mohali
on the basis of a disclosure statement of co-accused Sukhbir Singh @
Happy, from whom a recovery of 5.690 kilograms of Heroin along with
one revolver of 0.32 bore and four live cartridges was effected on the
spot. It would also be relevant to notice here that pursuant to the first
disclosure statement suffered by the respondent/accused, a recovery of
3.250 kgs of Heroin, a can containing ammonia solution, one plastic bag
containing 500 grams of codeine charcoal powder and one plastic bottle
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containing 500 ml of hydrochloride acid was effected. Thereafter, the
respondent/accused approached this Court under Section 439 of the
Cr.P.C. and vide order dated 05.07.2021 (Annexure P-3), he was
enlarged on bail. The relevant portion of the order granting bail to the
respondent/accused by this Court on 05.07.2021 (Annexure P-3) is being
reproduced as thus:
"After hearing learned counsel for the parties, I find
merit in the present petition, for the following reasons: -
(a) The petitioner was not named in the secret
information, wherein only description of co-
accused Sukhbir Singh @ Happy was mentioned
along with Creta car bearing registration No.PB-
02- DM-9518, whereas he was found driving
Brezza car bearing registration No.PB-02-DJ-
0279.
(b) The petitioner was nominated in the FIR, on the
basis of disclosure statement of aforesaid co-
accused Sukhbir Singh @ Happy, from whom the
commercial quantity of heroin was recovered.
(c) The petitioner is not involved in any other case
prior to registration of present FIR and
subsequent FIR registered on the very next day
i.e. 31.01.2020.
(d) The defence set up by the petitioner that he is
running his family business of cloth merchant
and is Income Tax Payer as well as that he has
recently joined a gym, where he came in contact
with some person and he has been trapped in this
case without there being any mens rea on his
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part, is yet to be ascertained during the course of
trial.
(e) As per affidavit of DSP, STF filed in CRM-M-
24847-2020 (first bail application of the
petitioner), giving the status report, neither it is
stated that the petitioner is owner of the car
recovered from co accused Sukbir Singh @
Happy, as in the secret information, there was
reference of Hyundai Creta car, whereas as per
status report, Brezza car was recovered;
registration numbers of both these cars were
different nor the affidavit states about ownership
of the house, from where recovery was effected
post disclosure by the petitioner.
(f) The police recorded three successive disclosure
statements of the petitioner, on the basis of
which, the alleged narcotics as well as mobile
phones were recovered, however, the affidavit is
again silent about any call details between the
petitioner and co-accused, which may show that
there was no meeting of mind among them to run
an organized racket of selling of narcotics.
(g) It is admitted case of the prosecution that the
petitioner is in custody since 30.01.2020; a
period of 01 year, 04 months and 17 days has
passed despite the fact that challan was
presented on 09.07.2020 and despite a lapse of
one year, prosecution evidence has not started
and as many as 38 prosecution witnesses have
been sited and it will take long time in conclusion
of the trial.
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(h) The petitioner will hand over his passport to the
police authorities and will not leave the country
without prior permission of the Court.
In view of the above, this petition is allowed and
the petitioner is directed to be released on regular bail
subject to furnishing his bail/surety bonds to the
satisfaction of the trial Court/Illaqa Magistrate/Duty
Magistrate, concerned.
However, it is made clear that at any subsequent
stage, if the petitioner is found involved in any case
under NDPS Act, it will be open for the prosecution to
apply for cancellation of his bail."
13. Subsequent to the grant of bail, the Ministry of Home Affairs,
Govt. of India, vide order dated 13.10.2021 bearing
No.11011/44/2020/NIA (Annexure P-6), while exercising its powers
under Sections 6 and 8 of the NIA Act, transferred the investigation to
NIA, which was already investigating the matter involving a larger
conspiracy i.e. case bearing crime No.01/2018 under Sections 8(c), 21(c),
24, 25, 27(A) and 29 of the NDPS Act registered on 12.08.2018 at Police
Station Anti-Terrorist Squad (ATS), Ahmedabad, Gujarat. Similarly,
investigation of the connected case bearing FIR No.23 dated 31.01.2020
under Sections 21, 25, 27-A, 29 of the NDPS Act registered at Police
Station STF, District STF Wing, Amritsar was also transferred to the NIA
by the Ministry of Home Affairs, Govt. of India, vide order dated
28.06.2021 bearing No.11011/44/2020/NIA (Annexure P-5).
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14. As already stands noticed by this Court in Para 2 of this order
(Brief facts of the case), the investigation carried out by the
petitioner/NIA has revealed that a cross-border organized crime syndicate
is involved in the smuggling of a huge quantity of narcotics (Heroin)
weighing 500 kilograms, which had been smuggled from Pakistan to
India through sea route into the State of Gujarat. The aforesaid
consignment orchestrated by Pakistani nationals, was transported to the
State of Punjab for sale. As per allegations, the respondent/accused is the
main aide of wanted accused Simranjeet Singh Sandhu alias Simar (WA-
2) and had been entrusted with the task of running a drug cartel in the
State of Punjab alongside managing financial transactions through the
Hawala Channel.
15. The version put forth by the petitioner/NIA prima facie
correlates with the huge recovery of Heroin made by the ATS Gujarat as
well as STF Punjab in FIRs No.20 of 2020 and FIR No.23 of 2020.
Therefore, this Court at this stage does not find any merit in the
submissions made by the learned counsel appearing on behalf of the
respondent/accused that apart from bald assertions there is no material
which would remotely link him with the huge recovery of Heroin
effected in Gujarat or with the drug cartel allegedly in operation.
Furthermore, even the NIA Special Court, Ahmedabad, after finding
prima facie sufficient cogent material to proceed, has framed charges
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against as many as 24 accused persons including Sukhbir Singh @ Happy
under sections 17 & 18 of the UAPA, among other offences.
16. This Court also finds no force in the submissions made by the
learned counsel for the respondent/accused that his arrest would not be
required since he was ready to join investigation and cooperate with the
investigating agency. In the instant case, there are grave allegations of
cross-border narco-terrorism involving a huge recovery of 500 kgs of
Heroin, which as already noticed in the earlier part of this order, was
smuggled into India through Gujarat and then into Punjab in a
meticulously planned manner. Therefore, to unearth and bust the drug
syndicate and to ascertain the involvement and role played by the
respondent/accused and others, a thorough and effective investigation is
required to be carried out, which would not be possible without his
custodial interrogation. In view of the nature and severity of the
allegations, coupled with the stakes involved, this Court concurs with the
submissions made by the learned counsel for the petitioner about the
possibility of the respondent evading the process of law.
17. It is no longer a secret and it is rather very unfortunate that
the menace of drugs has spread like termites and is slowly spreading its
tentacles. To effectively deal with the alarming rise of this drug menace,
it would be required to disrupt the supply chain by targeting the source of
these drugs and psychotropic substances. The instant case is one such
case where the custodial interrogation of the respondent would be
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necessitated so that the petitioner is able to go to the root and identify the
source as to where the drugs are coming from, as well as the Hawala
Channel. The investigation, in the facts and circumstances of the case,
would have to be taken to a logical conclusion, for which the
interrogation of the respondent, who is alleged to be running the
operations of the drug syndicate in Punjab on behalf of its kingpin, who
is based outside India, would be crucial.
18. After taking into consideration the totality of the facts and
circumstances as discussed above, the instant petition is allowed and the
bail granted to the respondent/accused vide order dated 05.07.2021
(Annexure P-3) is hereby cancelled, in order to enable a thorough
investigation into the offences which have been added subsequently.
19. However, it is made clear that anything observed hereinabove
shall not be construed to be an expression of opinion on the merits of the
case.
(MANJARI NEHRU KAUL)
JUDGE
January 29, 2024
rps
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
Neutral Citation No:=2024:PHHC:010992
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