2025 (5) TMI 1004 - SC - Indian Laws

Seeking regular bail in connection with FIR registered by the National Investigation Agency (NIA) - investigations into a multi-jurisdictional narcotics smuggling operation allegedly executed by Afghan-based syndicates with links to domestic operatives - substantial quantities of heroin were illicitly brought into India under the cover of commercial consignments - Offences punishable 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) - pre-trial incarceration - HELD THAT - The Appellant faces serious charges which allegedly carry grave societal ramifications including the facilitation of cross-border drug trafficking an offence with well-documented links to organised crime and public health degradation. The seizure in the connected consignment is part of what the Prosecution claims to be the largest heroin bust in Indian history valued at over INR 21, 000 crores. The scale and sophistication of the operation involving foreign syndicates shell firms medical visas and false documentation elevates this case far beyond routine NDPS violations. This Court also cannot ignore the fact that multiple key witnesses still remain to be examined and the trial while underway will take time in completion. Out of 24 most vulnerable or material witnesses two have died and two others are untraceable. One of the deceased witnesses a retired Customs Officer was found dead on the very day he was scheduled to record his statement under Section 164 CrPC. The risk of witness tampering or elimination whether directly attributable to the Appellant or not is a real and present concern that militates against the grant of bail at this stage. Moreover the Appellant s criminal antecedents though not involving prior accusations under the NDPS Act include multiple DRI and customs proceedings involving smuggling of cigarettes undervaluation of imports and alleged complicity in corruption offences. These antecedents are relevant only for the limited purpose of evaluating the Appellant s propensity to interfere with the process of justice if enlarged on bail. NIA has also highlighted that several accused remain absconding including the primary foreign conspirators. In that context the Appellant s foreign travel overseas connections and financial capacity cannot be overlooked in evaluating the possibility of flight risk. These are not speculative concerns but flow directly from the Appellant s prior conduct and profile. We are conscious of the settled principle that pre-trial incarceration should not translate into punitive detention. The Appellant has been in custody since 24.08.2022 and while we do not find that this duration alone warrants bail under the present circumstances the Appellant shall remain at liberty to renew his prayer for bail after a period of six months or upon substantial advancement in the trial whichever is earlier. Such a course would allow the Prosecution to complete the examination of its core witnesses while preserving the accused s right to seek release at a later and more appropriate stage. We deem it necessary to clarify that at this stage it would be premature and speculative to extend the allegations against the Appellant to the domain of terror financing. While the prosecution has invoked provisions of the UAPA and has broadly linked the smuggling enterprise to trans-national syndicates with suspected affiliations there is no compelling reason to currently link the Appellant and proscribed terrorist organisations either within or outside the country. The evidentiary foundation to sustain such a grave allegation must be clear and compelling something that can be seen only after a substantial portion of evidence is led by both the parties. Thus we dismiss the instant appeal with the following directions i. We are not inclined to enlarge the 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 the ongoing trial has progressed substantially; ii. The NIA is directed to submit to the Special Court an additional list of witnesses who in its assessment are sensitive or material inasmuch as their testimony may have a direct bearing on the role of the Appellant or other co-accused in the ongoing trial and connected investigation; iii. The Special Court is directed to list the matter twice in a month and record the statements of Prosecution witnesses on a continuous and uninterrupted basis; and iv. If the Presiding Officer of the Special Court has not been posted thus far we request the Hon ble Chief Justice of the High Court of Gujarat to do the needful within a week. As a measure of abundant caution and at the cost of repetition we make clear that this order shall not be construed as an expression of opinion on the merits of the case and shall not prejudice the trial proceedings in any manner. Ordered accordingly.

Summary

The core legal questions considered in this judgment are:

1. Whether the Appellant is entitled to regular bail under the stringent provisions of Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 (UAPA), given the nature and gravity of the offences alleged.

2. The applicability and scope of Section 43D(5) UAPA in bail proceedings, especially regarding the standard of proof required and the balance between public interest and individual liberty.

3. The sufficiency and reliability of the evidence, including circumstantial and witness testimony, to establish a prima facie case against the Appellant for offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act), UAPA, and Indian Penal Code (IPC).

4. Whether the absence of direct seizure of contraband from the Appellant's consignment negates the charge of criminal conspiracy and facilitation under the NDPS Act and UAPA.

5. The risk of the Appellant influencing witnesses or absconding if enlarged on bail, considering the ongoing trial and the involvement of foreign nationals and transnational syndicates.

6. The extent to which the Appellant's prior criminal antecedents and business background impact the bail decision.

7. The appropriateness of linking the Appellant to terror financing under the UAPA at this stage of the trial.

Issue-Wise Detailed Analysis

1. Bail under Section 43D(5) of UAPA

The legal framework mandates that bail under Section 43D(5) UAPA is not to be granted unless the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence. This provision imposes a higher threshold than ordinary bail but lower than proof beyond reasonable doubt. The Court relied on precedents clarifying that the satisfaction must be based on material that is not inherently improbable or ex facie unreliable.

The Court noted that while the rigour of Section 43D(5) may yield to Article 21 of the Constitution in cases of inordinate delay or punitive detention, such relaxation is not automatic and requires a fact-specific evaluation.

Applying this, the Court found that the Appellant failed to demonstrate sufficient grounds to satisfy the lower threshold for bail under this provision, especially given the ongoing trial and the nature of the offences.

2. Sufficiency and Nature of Evidence

The prosecution's case rests largely on circumstantial evidence, including the Appellant's meetings abroad with a foreign national accused of heading the smuggling syndicate, his role in setting up a front company (M/s Magent India), coordination of import consignments, and attempts to fabricate documentation to conceal the true nature of transactions.

Protected witness statements corroborated the Appellant's controlling role over the front company and his involvement in the import and clearance process. Call detail records confirmed communication between the Appellant and co-conspirators during critical periods.

Despite no direct seizure of heroin from the Appellant's consignment, the Court held that criminal conspiracy and facilitation under the NDPS Act and UAPA do not require physical recovery of contraband. The pattern of conduct, logistical similarities with seized consignments, and circumstantial linkages were sufficient to meet the prima facie threshold.

Competing arguments by the defense emphasized the lack of direct evidence, the fact that the consignment was cleared after 100% inspection by Customs, and the absence of any witness implicating the Appellant so far. However, the Court found these insufficient to override the prosecution's material, especially in light of the ongoing trial and the complex, multi-layered nature of the smuggling operation.

3. Risk of Influence on Witnesses and Flight Risk

The Court took note of the suspicious death of a key witness on the day he was to record a statement, and the untraceability of two other important witnesses. These circumstances underscored the real risk of witness tampering or elimination if bail were granted.

The Appellant's foreign travel history, overseas connections, and financial resources were considered in assessing the possibility of absconding. The presence of several absconding accused, including foreign nationals allegedly controlling the syndicate, further heightened the risk.

These factors militated strongly against bail, as the Court prioritized the integrity of the ongoing investigation and trial.

4. Prior Criminal Antecedents and Business Background

The Appellant's prior involvement in smuggling-related customs violations and economic offences, though not under the NDPS Act or UAPA, was deemed relevant for assessing his propensity to interfere with the judicial process.

The defense argued that the Appellant's long-standing legitimate business operations and absence of prior convictions under the NDPS Act or UAPA indicated a low flight risk. The Court acknowledged this but found the antecedents sufficient to warrant caution in the bail decision.

5. Linkage to Terror Financing

The prosecution invoked provisions of the UAPA related to terrorist activities, suggesting that the smuggling network had transnational terror affiliations. The Court, however, held that at this stage, there was no compelling or clear evidence to link the Appellant to proscribed terrorist organizations.

The Court emphasized that such grave allegations require a clear and compelling evidentiary foundation, which could only be assessed after substantial evidence is led during the trial.

6. Trial Progress and Bail Considerations

The Court acknowledged the ongoing trial's progress, with 20 out of 24 identified vulnerable and material witnesses examined. It recognized the Appellant's right to liberty and the need to avoid punitive detention but balanced this against the seriousness of the charges and the risks posed.

The Court directed the Special Court to expedite the trial, listing the matter twice a month and recording witness statements continuously. It also permitted the Appellant to renew the bail application after six months or upon substantial trial advancement.

Significant Holdings

"The rigour of Section 43D(5) of the UAPA would, however, in an appropriate case yield to the overarching mandate of Article 21 of the Constitution, especially where the trial is inordinately delayed or where the incarceration becomes punitive. However, such relaxation cannot possibly be automatic and must be evaluated in light of the specific facts and risks associated with each case."

"The absence of direct seizure is not dispositive, particularly where there exists a pattern of covert coordination, fictitious entities, and barter-based compensation-features which, according to the prosecution, mark the smuggling architecture employed in the present matter."

"The risk of witness tampering or elimination-whether directly attributable to the Appellant or not-is a real and present concern that militates against the grant of bail at this stage."

"At this stage, it would be premature and speculative to extend the allegations against the Appellant to the domain of terror financing... The evidentiary foundation to sustain such a grave allegation must be clear and compelling."

The Court concluded that the Appellant had not met the threshold for bail under the stringent provisions of the UAPA and that the prosecution's material established a prima facie case of conspiracy and facilitation in a large-scale transnational narcotics smuggling operation. The Appellant's bail application was dismissed with liberty to renew after six months or significant trial progress, and directions were issued for expeditious trial conduct and witness examination.