4 Yrs Is Sufficient Period To Snap Links: P&H HC Grants Bail To Men Booked Under UAPA, NDPS For Transferring Funds To Terror Outfit 'Hizb-Ul-Mujahideen'

The Punjab & Haryana High Court has granted bail to four men accused under the stringent Unlawful Activities (Prevention) Act, 1967 (UAPA) and Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for entering into a criminal conspiracy to smuggle and to do trading of heroin in India, in order to transfer the proceeds to the terrorist organization namely Hizb-ul-Mujahideen.

The Court found that "prima facie" offences under UAPA are not made out, except against one accused and identical twin stringent conditions of bail are prescribed under both UAPA and NDPS, with the slight difference that under UAPA findings qua possibility of involvement of accused in similar offence while on bail, is not required to be recorded.

Justice GS Sandhawalia and Justice Jagmohan Bansal said, "Constitutional Courts are assigned role of sentinel qui vive for the protection of fundamental rights guaranteed by Chapter III of the Constitution of India. Article 22 permits detention which is a worse form of deprivation of personal liberty, however, there are safeguards in the form of Constitution of Advisory Board, maximum tenure of detention etc. TADA, MISA and COFEPOSA are different enactments which permit detention without trial. The intention of detention is to snap live link of detenu from his associates."

While noting that the accused persons are in custody for almost 4 years, the bench said, it is a "sufficient period to snap link of appellants with their associates. Thus, there is compliance of intent and purport of Section 37 of NDPS Act."

The Court was hearing an appeal against the trial court order which rejected the bail pleas of four men, who allegedly entered into a criminal conspiracy to smuggle and to do trading of heroin in India and to generate the proceeds of heroin and further channel the said proceeds to the proscribed terrorist organization namely Hizb-ul-Mujahideen.

It was alleged that they committed offences punishable under different Sections of the NDPS Act, UAPA and 120-B of IPC.

The counsel for respondent-NIA opposing the appeal vigorously contended that there are serious allegations against the appellants and as per Section 43D of UAPA and 37 of NDPS Act, the appellants cannot be released on bail.

After hearing the submissions, the Court referred to Sanjay Chandra v. CBI wherein it was held that bail cannot be denied merely on the ground that the alleged offence is an economic offence.

 Referring to judicial precedents, the Court said it is quite evident that a person accused of commission of an offence under the NDPS Act or UAPA cannot be enlarged on bail in a mechanical or routine manner.

The Court observed, "While adjudicating appeal seeking bail, in view of mandate of stringent conditions of bail, judicial precedents qua normal offences and serious offences, Court has to find out:

(i) Whether there are reasonable grounds to believe that accused is not guilty of offence and reasonable grounds means “something more than prima facie grounds”?

(ii) There should be probable causes for believing that the accused is not guilty of alleged offence.

(iii) Compliance of twin conditions contemplated by Section 43D of UAPA and 37 of NDPS is mandatory.

(iv) What is length of custody, what is stage of trial and to what extent right of personal liberty guaranteed by article 21, in view of nature of allegations can be curtailed?

(v) Whether accused is likely to be involved in same activities as alleged in the challan?

(vi) Whether presence of accused during trial would be available or there is possibility of flee from justice on the part of accused?

(vii) What is likelihood of tampering of evidence and undue pressure on the witnesses?

(viii) What is possibility of conviction?

(ix) How far interest of public at large would be jeopardized."

The Court noted that in the charge sheet, the appellants [except Manpreet Singh @ Mann] are subjected to provisions of UAPA apart from the NDPS Act. Though different provisions of UAPA have been invoked we prime facie find that appellants [except Hilal Ahmad] before the Court are primarily accused of commission of an offence punishable under the NDPS Act, it said.

Adding that allegations of commission of an offence punishable under NDPS Act and UAPA are serious, the Court said, "The provisions qua bail under NDPS Act as well UAPA are very strict. As per Section 37 of NDPS Act and 43 of UAPA, bail can be granted subject to compliance of twin conditions."

The division bench noted that there is no recovery of narcotic drugs from appellants except one accused, and there is no attachment of property though there are allegations that they have made properties out of proceeds of crime. The respondent under UAPA as well NDPS Act has failed to attach properties derived from proceeds of crime.

There is no attachment of property though there are allegations that they have made properties out of proceeds of crime. The respondent under UAPA as well NDPS Act has failed to attach properties derived from proceeds of crime, it added.

Stating that the appellants are in custody for 4 years, the Court noted, "Without blaming anyone, it is apt to notice that learned Special Judge has framed charges on 16.05.2024 and that too after strict observations dated 26.04.2024 of this Court."

The bench observed that there would be no gainsaid to the factum that in the present facts and available infrastructure, there is an abysmally low possibility of conclusion of trial even in the coming many years.

With respect to the allegation of collection of cash and delivery thereof during April' 2020 when the entire country was facing complete lockdown, the Court opined, "It seems difficult to believe that appellant Gursant Singh (A-9) during lockdown was able to freely move especially in a big city i.e. Amritsar."

It highlighted further that Section 37(1)(b)(ii) of the NDPS Act, while postulating that the accused is not likely to commit any offence while on bail, reiterates the object of preventive detention i.e. snapping of the link of the detenue with his associates.

In light of the above, the Court opined that "the appellants to whom bail is hereby granted are in the judicial custody for almost 4 years which is sufficient period to snap link of appellants with their associates. Thus, there is compliance of intent and purport of Section 37 of NDPS Act."

While imposing certain conditions, the Court allowed the plea.

Ms. G.K. Mann, Senior Advocate with Ms. Simrat Kaur, Advocate,

Mr. Anmol Jeevan Singh Gill, Advocate and Mr. Gursharan Singh, Advocate for the appellant (in CRA-D-226-2023)

Mr. Keshavam Chaudhary, Advocate and Mr. Sajal Bansal, Advocate for the appellant (in CRA-D-467-2023)

Mr. R.S. Bains, Senior Advocate with Mr. Anmoldeep Singh, Advocate and Mr. Amarjeet, Advocate for the appellant (in CRA-D-539-2023)

Mr. Hitesh Verma, Advocate for the appellant (in CRA-D-1399-2023)

Mr. Sukhdeep Singh Sandhu, Special Prosecutor for National Investigating Agency

Mr. Salil Sabhlok, Senior Deputy Advocate General, Punjab

Title: Bikram Singh @ Bikramjit Singh @ Vicky v. National Investigation Agency

Citation: 2024 LiveLaw (PH) 257

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