# Ankush Vipan Kapoor v. National Investigation Agency

- **Citation:** 2024 INSC 986
- **Court:** Supreme Court of India
- **Decided:** 2024-12-16
- **Bench:** B.V. Nagarathna, Nongmeikapam Kotiswar Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ankush-vipan-kapoor-v-national-investigation-agency-37230
- **Pages:** 52

## Headnote

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
1744
[2024] 12 S.C.R.
Supreme Court Reports
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 Poli

## Text

_Characters 0–39,894 of 107,598. This is a partial read: ask again with offset=39894 for what follows._

[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
1744
[2024] 12 S.C.R.
Supreme Court Reports
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
[2024] 12 S.C.R.
1745
Ankush Vipan Kapoor v. National Investigation Agency
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
1746
[2024] 12 S.C.R.
Supreme Court Reports
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.
[2024] 12 S.C.R.
1747
Ankush Vipan Kapoor v. National Investigation Agency
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.
1748
[2024] 12 S.C.R.
Supreme Court Reports
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:
2.
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
[2024] 12 S.C.R.
1749
Ankush Vipan Kapoor v. National Investigation Agency
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
1750
[2024] 12 S.C.R.
Supreme Court Reports
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.
[2024] 12 S.C.R.
1751
Ankush Vipan Kapoor v. National Investigation Agency
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:
3.
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.
1752
[2024] 12 S.C.R.
Supreme Court Reports
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;
[2024] 12 S.C.R.
1753
Ankush Vipan Kapoor v. National Investigation Agency
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
1754
[2024] 12 S.C.R.
Supreme Court Reports
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
[2024] 12 S.C.R.
1755
Ankush Vipan Kapoor v. National Investigation Agency
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
1756
[2024] 12 S.C.R.
Supreme Court Reports
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:
4.
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
[2024] 12 S.C.R.
1757
Ankush Vipan Kapoor v. National Investigation Agency
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
1758
[2024] 12 S.C.R.
Supreme Court Reports
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
[2024] 12 S.C.R.
1759
Ankush Vipan Kapoor v. National Investigation Agency
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
1760
[2024] 12 S.C.R.
Supreme Court Reports
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.