[2024] 12 S.C.R. 1743 : 2024 INSC 986

Ankush Vipan Kapoor v.

National Investigation Agency

(Special Leave Petition (Criminal) No. 2819 of 2024)

16 December 2024

[B.V. Nagarathna* and Nongmeikapam Kotiswar Singh, JJ.]

Issue for Consideration

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 National Investigation Agency, 2008; 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; 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.

Headnotes†

National Investigation Agency, 2008 - ss.8, 6(5), 14 - Unlawful Activities (Prevention) Act, 1967 - ss.17, 18 - Narcotic Drugs and Psychotropic Substances Act, 1985 - While investigating a Scheduled Offence (an offence under UAPA), can NIA investigate an Unscheduled Offence (an offence under NDPS Act) - Orders passed by Central Government directing the NIA to investigate certain offences under the NDPS Act against the petitioner - Challenge to:

Held: While investigating the offences u/ss.17 and 18 of UAPA (Scheduled Offences) by virtue of sub-section (5) of s.6, u/s.8 any other offence such as an offence under the NDPS Act connected

* Author

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with the Scheduled Offences (ss.17 and 18 of the UAPA in the instant case) could also be investigated - But, such other offence must have a connection with the Scheduled Offence. [Para 7]

1.2 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 s.8 - 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 - s.8 has to be read in continuation of sub-section (5) of s.6 of the NIA Act - Thus, 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. [Paras 7.1, 7.3, 7.13]

1.3 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, then such offence could also be investigated provided that other offence to be investigated is connected with the Scheduled Offence. [Para 7.3]

2.1 In the present case, the offences registered in FIR No.1/2018 at PS ATS, Ahmedabad, Gujarat (Gujarat case) and the offences registered against the petitioner herein under FIR No.20/2020 and under FIR No.23/2020 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 ss.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 (ss.17 and 18 of the UAPA) on the basis of the initial order passed under subsection (5) of s.6 of the NIA Act on 29.06.2021. [Para 8.6]

2.2 Accordingly, when the NIA was investigating into the Scheduled Offences in the Gujarat case, it forwarded reports to the Central Government in respect of FIR No.23/2020 registered at Police


Station STF, District STF Wing, Amritsar, Punjab and FIR No.20/2020 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 s.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. [Para 8.7]

2.3 Impugned orders of the Central Government are in accordance with sub-section (5) of s.6 r/w s.8 - There is a connection, nexus and a link which has been brought out between the Scheduled Offences investigated by the NIA u/ss.17 and 18 of UAPA pursuant to order dated 29.06.2020 (Annexure P-4) and subsequently under the orders dated 28.06.2021 (Annexure P-6) and 12.10.2021 (Annexure P-9) insofar as the offences alleged against the petitioner herein under the provisions of the NDPS Act are concerned Annexures P-6 and P-9 were issued by the Central Government by exercising power u/sub-section (5) of s.6 r/w s.8 of the NIA Act and in continuation of Annexure P-4 - No reason to quash the impugned orders at Annexures P-4, P-6 and P-9 issued by respondent No.1 - NIA rightly sought cancellation of bail granted to the petitioner by the High Court in respect of the offences alleged against him under the NIA Act in the State of Punjab, as the said offences are now being investigated by the NIA and there is also transfer of the trial from the Punjab to Gujarat, to be tried along with Scheduled Offences u/ss.17 and 18 of the UAPA as per s.14 of the NIA Act. [Paras 8.9, 8.10]

National Investigation Agency, 2008 - ss.8, 6(4), (5) - Expression "the accused" used in s.8 - Interpretation - Scope of the powers of the NIA u/s.8 - Whether, the expression "the accused" in s.8 refers to only the accused in respect of whom a Scheduled Offence is being investigated or it includes 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:

Held: The expression "the accused" in s.8 cannot be restricted in its meaning and connotation to only the accused in respect of whom investigation is being carried out pursuant to sub-sections (4) and (5) of s.6 in respect of a Scheduled Offence - It could also

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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 - 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 - 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. [Paras 7.6, 7.10]

National Investigation Agency, 2008 - s.8 - While investigating the accused of a Scheduled Offence, any other accused could also be investigated on the strength of s.8 - Conditions precedent for - Enumerated. [Para 7.12]

Words and Phrases - National Investigation Agency, 2008 - s.8 - Use of "the" before a noun vis-à-vis "a" or "an":

Held: The word "the" used before a noun "accused" in s.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 - s.8 has to be given a purposive and meaningful interpretation, one which would advance the object of s.6 and other provisions of the Act and cannot be read in a curtailed and narrow fashion. [Para 7.11]

Illicit Drug Trade and Abuse - Effects - Debilitating impact of drug trade and drug abuse, an immediate and serious concern for India - Prevention of drug abuse - Role of parents, schools and colleges, Local Communities and NGOs, NALSA, NCPCR and NCB - Discussed - Word of caution for the youth.


List of Acts

National Investigation Agency Act, 2008; Unlawful Activities (Prevention) Act, 1967; Narcotic Drugs and Psychotropic Substances Act, 1985; Arms Act, 1959; Police Act, 1861; Code of Criminal Procedure, 1973.

List of Keywords

Section 8 of National Investigation Agency, 2008; Scope of the powers of the NIA under Section 8; NIA investigation qua Scheduled Offences and for non-scheduled offence; Same accused; Any other accused person; Link between Scheduled and non-scheduled offences; the accused; Name emerged during the course of investigation of a Scheduled Offence; Offence has a connection with the Scheduled Offence; Report by the NIA; Offence to be investigated connected with the Scheduled Offence; Cancellation of bail; Prevention of drug abuse; Cross-border narco-terrorism; Recovery of 500 kgs of heroin; Cross-border smuggling of drugs and narcotics substances; Drugs syndicate; Transfer of the trial from the State of Punjab to the State of Gujarat; Joint investigation into Scheduled Offences; Connection with other offences; Suo motu powers; Illicit Drug Trade and Abuse; Prevention of drug abuse Purposive interpretation; Meaningful interpretation; Expansive meaning.

Case Arising From

CRIMINAL APPELLATE/ORIGINAL APPELLATE JURISDICTION: Special Leave Petition (Criminal) No. 2819 of 2024

From the Judgment and Order dated 29.01.2024 of the High Court of Punjab & Haryana at Chandigarh in CRMM No. 24743 of 2023

With

W.P. (CRL.) No. 168 of 2024

Appearances for Parties

Mrs. Aishwarya Bhati, A.S.G., Siddhartha Dave, Sr. Adv., Sumit Kalra, Vipul Jindal, Ms. Yashika Malhotra, Ms. Simran Ahuja, Ms.

A. Arora, Vineet Dwivedi, Abhishek Gupta, Rajat Nair, Shivank Pratap Singh, Sarthak Karol, Gaurang Bhushan, Vishnu Shankar Jain, Ms. Shivika Mehra, Sagar Bhandare, Ms. Manisha Chava, Arvind Kumar Sharma, Harshit Sethi, Ms. Mansi Tripathi, Kartik Yadav, Nikilesh Ramachandran, Advs. for the appearing parties.

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Judgment/Order of the Supreme Court

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 judgment.

Factual Background:

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 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.

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 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

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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.

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 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 crossborder 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.

Writ Petition (Crl.) No.168 of 2024:

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 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.

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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 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 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.

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 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

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Act, the Central Government was of the opinion that Sections 17 and 18 of the UAPA were are also attracted. Consequently, FIR No. 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)

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.

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 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

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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 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:

Sri Siddhartha Dave, learned senior counsel appearing for the petitioner has premised his arguments on the basis of Article 21 of 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 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 subsections (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 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

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of there being any connection either with the accused against whom 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 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/ 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 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

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quashed. Learned senior counsel submitted that the arguments advanced in the writ petition be read as part and 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 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 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 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 accused have a connection with the Scheduled Offences under the UAPA and there is no merit in this petition.

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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 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:

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-incharge of a police station discharging the functions of such an officer within the limits of his station.

x x x x

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 officerin-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

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 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

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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 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 nonobstante 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:

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.

Sections 15, 16, 17 and 18 of the UAPA are extracted as under:

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"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; ordisruption 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 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;

(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

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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, 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:

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 connected with the Scheduled Offences (Sections 17 and 18 of the UAPA 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 who are present in FIR No.20/2020 and FIR No.23/2020 who are not 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

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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, 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.

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 only the accused in respect of whom investigation is being carried out pursuant to subsections (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 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

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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, 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 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 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 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

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and one which would advance the object of Section 6 and other provisions of the 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 investigation to be carried out in respect of any other accused 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 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.

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 accusedcentric. 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.

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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.

Analysis on facts of these cases:

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 Division

North Block, New Delhi Dated, the 29th June, 2020

ORDER

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 Devbhoomi 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

The Director General, National Investigation Agency, CGO Complex, Lodhi Road, New Delhi Chief Secretary Government of Gujarat DGP Gujarat

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 subsection (5) of section 6 read with section 8 of the NIA Act, 2008, the Central Government has, by order No

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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".

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

The Director General, National Investigation Agency, CGO Complex, Lodhi Road, New Delhi.

The Chief Secretary to the Government of Punjab.

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 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)/16136 dated 28.09.2021, has forwarded a report stating that FIR No.20/2020 dated

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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 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

The Director General, National Investigation Agency, CGO Complex, Lodhi Road, New Delhi

Chief Secretary to the Government of Punjab

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 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 subsection (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 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.

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:

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ACCUSED IN FIRST INFORMATION REPORTS

FIR No.01/ 2018 dt. 12.08.2018

PS. ATS, Dist.

Ahmedabad, Gujarat

FIR No. RC

26/2020/NIA/DLI dt. 02.07.2020 (renumbered FIR No. 01/2018) PS NIA Hqrs, New Delhi

FIR No. 20/2020 dt. 29.01.2020

PS STF, SAS Nagar, Mohali, Punjab

FIR No. 23/2020 dt. 31.01.2020

PS STF, Amritsar, Punjab

Aziz Abdul Bhagad Aziz Abdul Bhagad Happy Ankush Kapoor

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

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 known


ACCUSED IN CHARGE SHEETS

Charge Sheet dt. 11.06.2020 in FIR No. 20/2020

Charge Sheet dt. 18.07.2020 in FIR No. 23/2020

Supplementary Charge Sheet No. 18/2020 dt. 07.08.2020 filed by NIA in FIR No.

RC-26/2020/NIA/DLI

Supplementary Charge Sheet No. 18(A)/2021 dt. 24.05.2021 filed by NIA in FIR No. RC-

26/2020/NIA/DLI

Sukhbir Singh alias Happy (Accused No. 1)

Arman Bashar Mall (Accused No. 1)

Aziz S/o Abdul Bhagad (Accused No. 1) Indresh Kumar (Accused No. 9)

Ankush Kapoor (Petitioner) (Accused No. 2)

Sukhwinder Singh (Accused No. 2)

Rafik (Accused No. 2)

Sukhwinder Singh (Accused No. 3)

Major Singh (Accused No. 3) Nazir Ahmad (Accused No. 3)

Major Singh (Accused No. 4) Miss Tamanna Gupta (Accused No. 4)

Arshad @ Raja Dubai (Accused No. 4)

Mantej Singh (Accused No. 5) Mantej Singh (Accused No. 5) Manzoor Ahmad (Accused No. 5)

Tamanna Putri Rakesh Gupta (Accused No. 6)

Indresh Kumar (Accused No.6) Razak (Accused No. 6)

Arman Bashar Mall (Accused No. 7)

Sukhbir Singh alias Happy (Accused No.7)

Karim (Accused No. 7)

Kuldeep Singh (Accused No. 8) Ankush Kapoor (Accused No.8) Sunil Vithal Barmase (Accused No. 8)

Malkit Singh (Accused No. 9) Hanitpal Singh (Accused No. 9) Shahid Kasam Sumra (Wanted Accused-1)

Accused which were not challaned:

Simranjit Singh Sandhu

Sahil Sharma (Accused No. 10)

Simranjit Singh Sarabjit Singh Sandhu (Wanted Accused-2)

Accused which were not challaned:

Tanveer Singh Bedi

Gagandeep Singh Indresh (Wanted Accused-3)

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Charge Sheet dt. 11.06.2020 in FIR No. 20/2020

Charge Sheet dt. 18.07.2020 in FIR No. 23/2020

Supplementary Charge Sheet No. 18/2020 dt. 07.08.2020 filed by NIA in FIR No.

RC-26/2020/NIA/DLI

Supplementary Charge Sheet No. 18(A)/2021 dt. 24.05.2021 filed by NIA in FIR No. RC-

26/2020/NIA/DLI

Accused which were not challaned:

Baijaan

Anwar Masih Haji Sab alias Bhaijaan (Wanted Accused-4)

Accused who were not challaned:

Simranjit Singh Sandhu

Pakistani national - Nabibaksh (Wanted Accused-5)

Accused who were not challaned:

Tanvir Singh

10 Pakistani Nationals of Haji saab @ Bhaijan, whose names and addresses 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

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 subsection (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 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.

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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 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 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 subsection (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, 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:

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

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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, 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

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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

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end consumers of the illicit drug trade exercise communityfriendly 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!

Result of the Case: Special leave petition and writ petition dismissed.

†Headnotes prepared by: Divya Pandey