NIA Can Investigate Unscheduled Offences Connected With Scheduled Offences : Supreme Court
The Supreme Court held that the National Investigation Agency (NIA) has the power to investigate an offence, which is not included in the schedule of the NIA Act, if it is connected with an offence which is included in the schedule of the NIA Act.
The Court clarified this legal position while upholding the order of the Punjab & Haryana High Court which cancelled the bail of a man accused in a case involving 500 kgs of heroin smuggling from Pakistan, observing that his custodial interrogation would be required to know the "hawala channels."
As per the schedule of the NIA Act, offences under eight laws are mentioned. In the present case, offences under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), which are not scheduled offences, were also involved.
In this case, the investigations to the National Investigation Agency revealed that a cross-border organized crime syndicate was involved in the smuggling of a huge quantity of narcotics (Heroin) weighing 500 kilograms, which had been smuggled from Pakistan to India through sea route into the State of Gujarat. The aforesaid consignment orchestrated by Pakistani nationals, was transported to the State of Punjab for sale.
It was alleged by the NIA that the accused is the main aide of the wanted accused, against whom charges under the Unlawful Activities (Prevention) Act were slapped, and had been entrusted with the task of running a drug cartel in the State of Punjab alongside managing financial transactions through the Hawala Channel.
A bench of Justices BV Nagarathna and NK Singh pronounced the judgment, where the question before the Court was: "The interpretative challenge which has come to the forefront in which case is due tot he fact that certain co-accused who are present in FIR no. 20/2020 and FIR no.23/2020, who was not accused in the prior FIR no. 1/2018 registered in the State of Gujarat. Therefore, the question is whether the National Investigation Agency (NIA) can investigate only the same who is present in the entire investigation for scheduled offences and for non-scheduled offence by virtue of Section 8 of the NIA Act.
The Court held that the NIA can investigate another accused, although not being investigated for any scheduled offence,could be investigated by NIA, if there exists a link between the scheduled and non-scheduled offences. The Court said: "While investigating the accused of a scheduled offence, any other accused could also be investigated in the strength of Section 8 of the NIA Act provided the following conditions presents are applicable:
1. NIA is of the opinion that during the investigation, any other accused who has alleged to have committed an offence having a connection with the scheduled offence has also to be investigated. 2. Report may be submitted by the NIA incorporating the aforesaid opinions to the central government; 3. Central government on consideration of such a report in exercise of its suo moto powers under Section 5(6) read with Section 8 of the NIA Act directs the investigation be carried out of any other accused. 4. 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."
Further, the Court has dedicated an epilogue part of the judgment raising concerns about drug abuse. The Court said: "Although we are mindful that the present matter concerns cancellation of bail and challenges to the central government order directing NIA to investigate certain offences under the provisions of the NDPS Act against petitioner herein, we would like to record out earnest disquiet against the proliferation of drug abuse in India. Despite the efforts of the State and unprecedented chain of coordination..this menace, so hard-hitting and multifaceted that it causes suffering cutting across age groups, communities, and regions..
.it is the endeavour to profit from it and use the proceed therefore for committing other offences against society and State such as conspiracy against the State, funding terrorism activities. Profits from drug-trafficking are increasingly used for funding terrorism and violence...studies across the globe suggest easy access to narcotics leads to peer-pressure and mental health challenges particularly in the context of academic pressure and family dysfunction could be significant contributors to this disturbing trends."
Background
The NIA had moved the High Court seeking cancellation of bail of Ankush Vipan Kapoor, who was accused in several cases, including dealing in illegal weapons and Heroin and smuggling a massive quantity of contraband. He was booked under Sections 21, 25, 27-A, 29, 85 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and Sections 30, 53, and 59 of the Arms Act in 2020. He was granted regular bail in 2021.
He was also accused in a case involving smuggling of 500kgs of heroin from Pakistan to Gujarat. Given the seriousness of the matter, the Gujarat Government transferred the case to NIA. The NIA added Sections 17 & 18 of UAPA against him.
Justice Manjari Nehru Kaul of the High Court while cancelling the bail, stated: "Therefore, to unearth and bust the drug syndicate and to ascertain the involvement and role played by the respondent/accused and others, a thorough and effective investigation is required to be carried out, which would not be possible without his custodial interrogation. In view of the nature and severity of the allegations, coupled with the stakes involved, this Court concurs with the submissions made by the learned counsel for the petitioner about the possibility of the respondent evading the process of law.
"It is no longer a secret and it is rather very unfortunate that the menace of drugs has spread like termites and is slowly spreading its tentacles. To effectively deal with the alarming rise of this drug menace, it would be required to disrupt the supply chain by targeting the source of these drugs and psychotropic substances."
The court added that the instant case is one such case in which the custodial interrogation of the respondent would be necessitated so that the petitioner can go to the root and identify the source of the drugs and the Hawala Channel.
Justice Kaul noted that in the instant case, there are grave allegations of cross-border narco-terrorism involving a huge recovery of 500 kgs of Heroin being smuggled into India through Gujarat and then into Punjab in a "meticulously planned manner." Reliance was placed upon Pradeep Ram vs. State of Jharkhand wherein it was held that, "...where after grant of bail to an accused, further cognizable and non-bailable offences are added:-
(i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In the event of refusal of bail, the accused can certainly be arrested.
(ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody."
The Court rejected the argument of counsel for the accused that apart from bald assertions there is no material which would remotely link him with the huge recovery of Heroin effected in Gujarat or with the drug cartel allegedly in operation.
Justice Kaul observed that in view of the nature and severity of the allegations, coupled with the stakes involved, "this Court concurs with the submissions made by the learned counsel for the petitioner about the possibility of the respondent evading the process of law."
The Court held that the investigation, in the facts and circumstances of the case, "would have to be taken to a logical conclusion, for which the interrogation of the respondent, who is alleged to be running the operations of the drug syndicate in Punjab on behalf of its kingpin, who is based outside India, would be crucial."
In the light of the above, the plea was allowed and consequently, the Court cancelled the bail of the accused.
Case Details: ANKUSH VIPAN KAPOOR v NATIONAL INVESTIGATION AGENCY., SLP(Crl) No. 2819/2024