Factual Background
Appeal against cancelling the bail granted to the petitioner
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.
First FIR leads to discovery and arrest of petitioner in second FIR and final reports filed in both FIRs
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 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.
Petitioner was granted bail in two applications by Hon’ble High Court
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.
Present FIR pertains to 500 kgs narcotics smuggling and distribution illicitly transported from Pakistan to Gujarat
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.
Investigation transferred to NIA
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 18 of the Unlawful Activities (Prevention) Act, 1967 (for short, “UAPA”) and took over the investigation from ATS Gujarat.
One Sukhbir singh @ happy was arrested pertains to all FIRs and he revealed the involvement of the petitioner
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.
Petitioners bail petition
Petitioner’s A.B were dismissed before the sessions and high court
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.
Petitioner was granted bail under section 439 Cr.P.C
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 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.
Hon’ble High Court cancelled the bail
2.8 Therefore, the High Court found grave allegations of cross/border narco-terrorism involving a huge recovery of 500 kgs of 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.
Analysis
Act analysis: National Investigation Agency, 2008
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 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 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.
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 officerin-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 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 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 while punishment for a terrorist act is under Section 16 section 18 of UAPA speaks about punishment for conspiracy.
The term ‘accused’
7.10. 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.
7.13 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 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.
NIA Act is offence centric and not accused centric
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 nonscheduled 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 expansively, does not advance the object and purpose of the Act and particularly Section 6 thereof and hence, is rejected.
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 imprint on public health and even national security. Article 47 of the 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 hardhitting and multifaceted that it causes suffering cutting across age groups, communities, and regions. Worse than suffering and pain, 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.
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 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 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 secure child would not become vulnerable and be lured towards substance 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. 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”).
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 obligation is met with a commitment to contribute as constructive citizens 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!
Party
Ankush Vipan Kapoor vs National Investigation Agency (NIA) and Union of India & Another – SPECIAL LEAVE PETITION (CRIMINAL) NO.2819 OF 2024 – 2024 INSC 986 – 29.01.2024
