1. Appeal against denial of regular bail for alleged conspiracy to import narcotics and engage in unlawful activities under the NDPS Act and UAPA. (Para 2 , 3 , 4 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 )
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2025 Supreme(SC) 804
SUPREME COURT OF INDIA
SURYA KANT, NONGMEIKAPAM KOTISWAR SINGH, JJ.
Harpreet Singh Talwar @ Kabir Talwar – Appellant
Versus
The State of Gujarat th. National Investigating Agency – Respondent
Criminal Appeal No. 2570 of 2025 (Arising out of SLP (Crl.) No. 8878 of 2024)
Decided On : 13-05-2025
Advocates appeared:
For the Petitioner(s): Mr. Nipun Katyal, Adv. Mr. Surya Pratap Singh Rana, Adv. Mr. Manan Sharma, Adv. Ms. Rohini Musa, AOR
For the Respondent(s): Ms. Aishwarya Bhati, A.S.G. Mr. Rajat Nair, Adv. Ms. Tanvi Dubey, Adv. Mr. Aaditya Shankar Dixit, Adv. Mr. Rajendra Singh Rana, Adv. Mr. Sarthak Karol, Adv. Mr. Arvind Kumar Sharma, AOR Ms. Zeenat Malick, Adv.
For the Petitioner(s): Mr. Nipun Katyal, Adv. Mr. Surya Pratap Singh Rana, Adv. Mr. Manan Sharma, Adv. Ms. Rohini Musa, AOR
For the Respondent(s): Ms. Aishwarya Bhati, A.S.G. Mr. Rajat Nair, Adv. Ms. Tanvi Dubey, Adv. Mr. Aaditya Shankar Dixit, Adv. Mr. Rajendra Singh Rana, Adv. Mr. Sarthak Karol, Adv. Mr. Arvind Kumar Sharma, AOR Ms. Zeenat Malick, Adv.
IMPORTANT POINTS
(1) Drug offences - Investigative narrative does not rest solely on physical recovery but proceeds on the basis of conspiracy and facilitation.
(2) Bail application - Relaxation in Section 43D(5) of UAPA cannot be automatic and must be evaluated in light of specific facts and risks associated with each case.
Headnote:
Unlawful Activities (Prevention) Act, 1967 - Section 43D(5) - Criminal Procedure Code, 1973 - Section 439[Section 483 of BNSS, 2023] - Bail application - Rejection - Offences under Sections 8(c), 21(c), 23(c), and 29 of NDPS Act, Sections 17, 18, and 22C of UAPA and Section 120B of IPC - Gravamen of allegations against Appellant is that he played a central and coordinating role in facilitation of a consignment of heroin-laced talc stones imported into India - Rigour of Section 43D(5) of UAPA would, in an appropriate case yield to overarching mandate of Article 21 of Constitution, especially where trial is inordinately delayed or where incarceration becomes punitive - However, such relaxation cannot possibly be automatic and must be evaluated in light of specific facts and risks associated with each case - Appellant has not been able to make out a case for grant of regular bail at this stage - No heroin or narcotic substances were directly recovered from consignment linked to Appellant - However, investigative narrative does not rest solely on physical recovery but proceeds on the basis of conspiracy and facilitation - Appellant faces serious charges, which allegedly carry grave societal ramifications, including facilitation of cross-border drug trafficking - Risk of witness tampering or elimination-whether directly attributable to Appellant or not-is a real and present concern that militates against grant of bail at this stage - Pre-trial incarceration should not translate into punitive detention - Appeal dismissed with liberty to renew plea for regular bail after a period of 6 months, or at a stage where ongoing trial has progressed substantially. (Paras 24, 25, 28, 29, 30, 33 and 35)
Facts of the case:
FIR arises from investigations into a multi-jurisdictional narcotics smuggling operation allegedly executed by Afghan-based syndicates, with links to domestic operatives, wherein substantial quantities of heroin were illicitly brought into India under cover of commercial consignments.
Findings of Court:
Court not inclined to enlarge Appellant on regular bail at this stage. He shall be at liberty to renew his plea for regular bail after a period of 6 months, or at a stage where ongoing trial has progressed substantially.
Result : Appeal dismissed.
Judgement Key Points
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
What is the proper scope and application of Section 43D(5) of the UAPA in bail applications?
What factors justify or negate regular bail where there is no direct recovery of contraband but there are allegations of conspiracy and cross-border drug trafficking?
What standards govern whether pre-trial incarceration may be relaxed in light of Article 21 when trial is delayed and risks of witness tampering exist?
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
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constitutional law
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fundamental rights
- article 21 (Para 24)
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fundamental rights
Table of Contents
2. Appellant claims lack of direct evidence and recovery of contraband; Prosecution asserts a sophisticated transnational conspiracy involving shell companies and risk of witness tampering. (Para 21 , 22 )
3. Prima facie complicity established through structural similarities in consignments, covert coordination, and shell entities, alongside significant risks of witness tampering and flight. (Para 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 )
4. Bail under Section 43D(5) UAPA requires prima facie satisfaction of complicity, which may be established via conspiracy and facilitation patterns despite absence of direct physical recovery. (Para 23 , 24 , 28 )
5. Appeal dismissed; bail denied with liberty to renew in six months, alongside directions for expedited trial and identification of material witnesses. (Para 33 , 35 )
6. What is the standard of satisfaction required for denying bail under Section 43D(5) of the UAPA?
The court is not required to meticulously examine the admissibility and reliability of evidence. The degree of satisfaction must be lower than proof beyond reasonable doubt but must be rooted in material that is not inherently improbable or ex facie unreliable. (Para 23 )
7. Does the absence of direct physical recovery of contraband preclude the denial of bail in conspiracy cases under the NDPS Act and UAPA?
No. In cases of criminal conspiracy and facilitation, the absence of direct seizure is not dispositive if there is a pattern of covert coordination, use of fictitious entities, and barter-based compensation. (Para 26 , 28 )
8. How does the mandate of Article 21 of the Constitution interact with the rigours of Section 43D(5) of the UAPA?
The rigours of Section 43D(5) may yield to Article 21 where trial is inordinately delayed or incarceration becomes punitive, though such relaxation is not automatic and depends on specific facts and risks. (Para 24 )
9. To what extent are criminal antecedents not related to the current charges relevant in determining bail?
Antecedents involving other offences, such as customs violations or smuggling, are relevant for evaluating the accused's propensity to interfere with the process of justice if enlarged on bail. (Para 31 )
ORDER :
(SURYA KANT, J.)
Leave granted.
2. The Appellant assails the order dated 28.03.2024 passed by the High Court of Gujarat at Ahmedabad (High Court) whereby his prayer for regular bail in connection with FIR No. RC-26/2021/NIA/DLI dated 23.09.2022 (FIR) registered by the National Investigation Agency (NIA), has been declined.
3. The aforesaid FIR arises from investigations into a multi-jurisdictional narcotics smuggling operation allegedly executed by Afghan-based syndicates, with links to domestic operatives, wherein substantial quantities of heroin were illicitly brought into India under the cover of commercial consignments.
4. The Appellant herein is arraigned as Accused No. 24 in the said case and is currently in custody since 24.08.2022. The offences alleged against him include those under Sections 8(c), 21(c), 23(c), and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), Sections 17, 18, and 22C of the Unlawful Activities (Prevention) Act, 1967 (UAPA), and Section 120B of the Indian Penal Code, 1860 (IPC). The trial is currently ongoing before the Special Court (NIA), Ahmedabad (NIA Court), and is at the stage of examination of Prosecution witnesses.
5. Before delving into the merits of this case, we may briefly advert to the factual matrix vis-à-vis the Appellant, i.e. Harpreet Singh Talwar @ Kabir Talwar.
6. The gravamen of the allegations against the Appellant is that he played a central and coordinating role in the facilitation of a consignment of heroin-laced talc stones imported into India in December 2020 through Mundra Port, Gujarat, under the cover of a firm named M/s Magent India. According to the Prosecution, the Appellant’s involvement in the present offence must be understood in the context of his long-standing associations with entities and individuals engaged in illicit international trade.
7. The offence came to light when the Directorate of Revenue Intelligence (DRI), Gandhidham Unit, registered Case No. DRI/AZU/GRU/NDPS- 01/2021 under the NDPS Act. That case pertains to the seizure of 2,988.21 kg of heroin, allegedly originating from Afghanistan and routed through Bandar Abbas, Iran. The narcotics were smuggled into India concealed as talc powder in a consignment addressed to one M/s Aashi Trading Company.
8. Based on intelligence inputs and parallel investigations by customs authorities and the DRI, the case was eventually taken over by the NIA. An FIR was registered on 06.10.2021, under the NDPS Act and UAPA. Due to the spread and magnitude of the alleged offence, investigative efforts were escalated, which led to the NIA discovering involvement of the Appellant in similar cross-border smuggling of narcotics.
9. NIA thus alleges that in September 2020, the Appellant undertook a visit to Dubai, where he was introduced through one Sunny Kakkar to Vityash Koser @ Raju Dubai, a foreign national and a designated accused (WA-7) alleged to be at the helm of a transnational heroin smuggling network.
10. This initial meeting, as per statements recorded under the NDPS Act and UAPA by protected witnesses, laid the foundation for a ‘criminal conspiracy’ wherein the Appellant agreed to facilitate the import of heroin into India under the guise of legitimate commercial goods. In furtherance of this arrangement, the Appellant is stated to have instructed his accountant, Sunil Jain, to arrange for the registration of a proprietorship concern in the name of his employee and domestic aide, one Prince Sharma (A-25). This entity—M/s Magent India—was registered on 22.09.2020, and according to the Prosecution, remained under the effective control of the Appellant.
11. Thereafter, the Appellant is alleged to have travelled to Dubai a second time, wherein he finalized the modalities of the import with Raju Dubai. Soon after, a consignment of 22 bags of semi-processed talc weighing 21,880 kilograms was dispatched on 16.11.2020 by M/s Habib Shabab Talc & Marble Processing Co. Ltd., Afghanistan, and routed thro
