Full Judgment Text
REPORTABLE
2025 INSC 662
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. ____/2025
(Arising out of SLP (Crl.) No. 8878/2024)
Harpreet Singh Talwar @ Kabir Talwar …Appellant
versus
The State of Gujarat th. National Investigating Agency …Respondent
O R D E R
SURYA KANT, J.
Leave granted.
2. The Appellant assails the order dated 28.03.2024 passed by the High
Court of Gujarat at Ahmedabad ( High Court ) whereby his prayer for
regular bail in connection with FIR No. RC-26/2021/NIA/DLI dated
23.09.2022 ( FIR ) registered by the National Investigation Agency
( NIA ), has been declined.
3. The aforesaid FIR arises from investigations into a multi-jurisdictional
narcotics smuggling operation allegedly executed by Afghan-based
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2025.05.13
15:46:03 IST
Reason:
syndicates, with links to domestic operatives, wherein substantial
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quantities of heroin were illicitly brought into India under the cover of
commercial consignments.
4. The Appellant herein is arraigned as Accused No. 24 in the said case
and is currently in custody since 24.08.2022. The offences alleged
against him include those under Sections 8(c), 21(c), 23(c), and 29 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS
Act ), Sections 17, 18, and 22C of the Unlawful Activities (Prevention)
Act, 1967 ( UAPA ), and Section 120B of the Indian Penal Code, 1860
( IPC ). The trial is currently ongoing before the Special Court (NIA),
Ahmedabad ( NIA Court ), and is at the stage of examination of
Prosecution witnesses.
5. Before delving into the merits of this case, we may briefly advert to the
factual matrix vis-à-vis the Appellant, i.e. Harpreet Singh Talwar @
Kabir Talwar.
6. The gravamen of the allegations against the Appellant is that he
played a central and coordinating role in the facilitation of a
consignment of heroin-laced talc stones imported into India in
December 2020 through Mundra Port, Gujarat, under the cover of a
firm named M/s Magent India. According to the Prosecution, the
Appellant’s involvement in the present offence must be understood in
the context of his long-standing associations with entities and
individuals engaged in illicit international trade.
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7.
The offence came to light when the Directorate of Revenue Intelligence
( DRI ), Gandhidham Unit, registered Case No. DRI/AZU/GRU/NDPS-
01/2021 under the NDPS Act. That case pertains to the seizure of
2,988.21 kg of heroin, allegedly originating from Afghanistan and
routed through Bandar Abbas, Iran. The narcotics were smuggled into
India concealed as talc powder in a consignment addressed to one
M/s Aashi Trading Company.
8. Based on intelligence inputs and parallel investigations by customs
authorities and the DRI, the case was eventually taken over by the
NIA. An FIR was registered on 06.10.2021, under the NDPS Act and
UAPA. Due to the spread and magnitude of the alleged offence,
investigative efforts were escalated, which led to the NIA discovering
involvement of the Appellant in similar cross-border smuggling of
narcotics.
9. NIA thus alleges that in September 2020, the Appellant undertook a
visit to Dubai, where he was introduced through one Sunny Kakkar to
Vityash Koser @ Raju Dubai, a foreign national and a designated
accused (WA-7) alleged to be at the helm of a transnational heroin
smuggling network.
10.
This initial meeting, as per statements recorded under the NDPS Act
and UAPA by protected witnesses, laid the foundation for a ‘criminal
conspiracy’ wherein the Appellant agreed to facilitate the import of
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heroin into India under the guise of legitimate commercial goods. In
furtherance of this arrangement, the Appellant is stated to have
instructed his accountant, Sunil Jain, to arrange for the registration of
a proprietorship concern in the name of his employee and domestic
aide, one Prince Sharma (A-25). This entity—M/s Magent India—was
registered on 22.09.2020, and according to the Prosecution, remained
under the effective control of the Appellant.
11. Thereafter, the Appellant is alleged to have travelled to Dubai a second
time, wherein he finalized the modalities of the import with Raju
Dubai. Soon after, a consignment of 22 bags of semi-processed talc
weighing 21,880 kilograms was dispatched on 16.11.2020 by M/s
Habib Shabab Talc & Marble Processing Co. Ltd., Afghanistan, and
routed through Bandar Abbas Port, Iran, consigned to M/s Magent
India.
12. The consignment arrived at Mundra Port, Gujarat on 23.12.2020, via
Bill of Entry No. 2083348. Around this time, Amit Sharma, described
as a known associate of Raju Dubai, is said to have visited the
Appellant’s office at East Patel Nagar, New Delhi. As per the
statements of Sunil Jain and protected witnesses, Amit Sharma was
handed over the firm’s import documents, including GST and IEC
credentials, under direct instructions from the Appellant. The
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clearance of the consignment was subsequently completed, although it
was marked for 100% examination.
13. Importantly, no remittance was made by M/s Magent India to the
Afghan supplier. Instead, the NIA alleges that the Appellant received
perfumes, dry fruits, and footwear as barter compensation through
other firms controlled by him. The goods were allegedly routed via
Dubai, without any customs duty being paid, and were disposed of
through entities that shared direct or indirect ownership links with the
Appellant.
14. When the enforcement agencies began probing similar consignments
in early 2021, the Appellant is said to have convened a meeting in his
office, attended by Prince Sharma and Amit Sharma. According to one
of the protected witnesses, the Appellant asked Amit Sharma to sign a
backdated ‘Authorization Letter’ accepting responsibility for the
consignment, which was refused. Subsequently, the Appellant directed
that fictitious invoices be raised to show sale of the goods to M/s
Prabh International, a company associated with his wife, Shaily
Talwar. However, no actual movement of goods ever took place; the
transaction was confined to papers only.
15.
The Appellant’s residence was searched on 24.08.2022, by the NIA,
and several items were seized including property documents, import-
export records, and an iPhone 13 Pro allegedly used during the
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relevant period. He was also taken into custody on the same date.
Subsequent forensic examination of call detail records confirmed that
during the clearance of the consignment at Mundra, there was
simultaneous contact between the Appellant, Amit Sharma, and Raju
Dubai, who were located within the same mobile tower zone.
16. In the first charge sheet filed on 14.03.2022, the Appellant was not
named as an accused. However, a second supplementary charge sheet
was subsequently filed on 20.02.2023, formally naming the Appellant
as Accused No. 24. He was charged under Sections 120B of the IPC,
8(c), 21(c), 23(c), 29 of the NDPS Act and Sections 17, 18, 22C of the
UAPA. The Prosecution also cited multiple protected witness
statements, including those former employees and associates who
allegedly corroborated the Appellant’s role in the formation and control
of Magent India, namely, the logistics of import, and the subsequent
efforts to create a paper trail for concealment.
17.
The Appellant first moved an application for regular bail before the
Special Court, which was declined vide order dated 30.07.2023,
holding that the material on record disclosed a prima facie case of
conspiracy under the NDPS Act and UAPA. The Special Court also
took note of the magnitude of the offence, the transnational nature of
the smuggling operation, and the possibility of the Appellant
influencing the course of the ongoing investigation and trial.
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18.
The aggrieved Appellant then approached the High Court under
Section 439 of the Code of Criminal Procedure, 1973 ( CrPC ). However,
by a reasoned order dated 28.03.2024, the High Court similarly
dismissed the Appellant’s regular bail application holding that the
statutory bar under Section 43D(5) of the UAPA was attracted in the
facts of this case. It further observed that the role attributed to the
Appellant, viewed cumulatively with the nature of the conspiracy and
the statements of key witnesses, warranted continued custody at that
stage.
19. Consequently, the Appellant is before this Court. Upon issuance of
notice on 12.07.2024, this Court has from time to time sought to
facilitate the expeditious conduct of the ongoing trial, solely for the
purpose of enabling a proper and informed consideration of the
Appellant’s prayer for bail on merits. In that context, directions were
issued to NIA to furnish a list of vulnerable and material witnesses,
whose testimony was considered essential at this stage. Pursuant to
such directions, the NIA identified 24 such witnesses, of whom 20
have since been examined, while two have unfortunately expired, and
the remaining two are untraceable despite the Agency’s stated efforts.
20.
Having touched upon the limited facts and circumstances that are
relevant for our consideration, we presently deem it fit to also
elucidate the contentions tendered on behalf of both the parties.
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21.
Mr C. A. Sundaram, Mr Siddharth Bhatnagar, and Dr Aditya Sondhi,
learned Senior Counsel appearing on behalf of the Appellant have
proffered several submissions against the correctness of the impugned
order in denying bail to the Appellant:
(i) the accusations against the Appellant rest solely on
circumstantial material, and no direct, primary, or even
credible indirect evidence has been adduced against him over
the course of investigation or trial proceedings so far;
(ii) while 20 vulnerable witnesses have already been examined,
not one of them has implicated the Appellant in any manner,
and no evidence has emerged linking him to any consignment
that was actually found to contain contraband;
(iii) the only consignment associated with the Appellant was
imported through M/s Magent India, received on 23.12.2020,
declared as semi-processed talc stones originating from
Afghanistan, and duly cleared by Customs after being
subjected to 100% inspection, as per the statement of
Customs Officer (PW10);
(iv) the prosecution’s theory of guilt is constructed in hindsight on
the basis of ‘reverse engineering’, relying on a later
consignment found in September 2021, nearly one year after
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the Appellant’s import, which was recovered from a
warehouse allegedly linked to a different accused;
(v) the Appellant cannot be held vicariously liable for material
found in a warehouse long after his consignment was cleared,
particularly when other importers who used the same channel
or warehouse were not proceeded against, such as M/s Vyom
Fashion and M/s VK Enterprises;
(vi) the allegations of a barter-style quid pro quo involving
imported goods like perfumes and dry fruits remain
unsubstantiated, and the relevant witness (X3) admitted that
the exchange of goods was limited to documentation and that
the products never actually arrived;
(vii) the allegation of five telephonic calls between the Appellant
and co-accused Raju Dubai is insufficient to establish
criminal conspiracy as while his purported interaction with
Raju Dubai may reflect bad judgment, it cannot automatically
translate to culpability, especially when no forensic link or
recovery connects him to heroin;
(viii) more pressingly, no extradition proceedings have been
initiated against the said foreign national (Raju Dubai), and
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the primary actors who allegedly exercised real control over
the consignments still remain absconding;
(ix) the Appellant’s business is Delhi-based and has been
operating in the import-export sector for over 15 years, and he
has no prior convictions under the NDPS Act or UAPA—thus
proving that he is not a flight risk;
(x) the Appellant has been in judicial custody since 24.08.2022,
and prolonged preventive detention runs afoul of his rights to
liberty and dignity.
22. In stark contrast , Ms Aishwarya Bhati, learned Additional Solicitor
General appearing on behalf of the State of Gujarat/NIA seeks to
vociferously contest the prayer for grant of bail to the Appellant. To
that end, she canvassed the following submissions:
(i) the Appellant was not merely an incidental actor but a key
facilitator in some of the six major consignments, which
collectively formed the architecture of what has since been
recognised as one of the largest heroin seizures in Indian
history, with a market value exceeding INR 21,000 crores;
(ii) M/s Magent India was a front company created by the
Appellant immediately after his first meeting with Raju Dubai
in September 2020. The consignment imported in December
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2020 under the Appellant’s instructions shares a direct
operational pattern with the later consignment seized in
September 2021; thus, all six consignments bore similar
hallmarks of subterfuge and were routed via shell firms,
using Afghan-origin talc to mask the smuggling of heroin;
(iii) although no contraband was recovered from the Appellant’s
consignment, the absence of physical recovery is not fatal to
the case of criminal conspiracy under the UAPA and NDPS
Act—which is made out from the Appellant’s meetings
abroad, telephonic calls, alleged coordination through
protected witnesses, and attempt to obfuscate documentary
trails;
(iv) the death of a key witness under suspicious circumstances
on the day he was to record a judicial statement, apart from
the fact that two critical witnesses remain untraceable, are
clearly indicative of the risk of witness elimination or
influence should the Appellant be enlarged on bail;
(v) this Court has already declined bail to similarly placed co-
accused, including those who had remained in custody for
over two years, on the ground that the rigours of Section
43D(5) of the UAPA were attracted. No mitigating
circumstance has been shown to warrant a different
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conclusion in the present case, particularly when several key
witnesses are yet to be examined, and multiple accused
remain absconding;
(vi) charges have since been framed in the ongoing trial, with
several key witnesses already being examined—which
indicates that the trial is progressing at a remarkable pace;
(vii) the Appellant is a habitual economic offender, with
antecedents involving smuggling and customs violations,
which militates against grant of bail keeping in view the
rigours of the subject-statutes; and
(viii) the serious nature of the offences alleged against the
Appellant, and their direct detrimental effect on the security
of the nation necessarily postulate that the Appellant should
not be afforded the relief of bail at this stage.
23. It may merit to discuss at the outset, the scope and application of
Section 43D(5) of UAPA whereunder the court, at the stage of bail is
not required to meticulously examine the admissibility and reliability
of evidence. The degree of satisfaction required under this provision
has to be lower than the proof beyond reasonable doubt, but must still
be rooted in material that is not inherently improbable or ex facie
unreliable.
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24.
The rigour of Section 43D(5) of the UAPA would, however, in an
appropriate case yield to the overarching mandate of Article 21 of the
Constitution, especially where the trial is inordinately delayed or
where the incarceration becomes punitive. However, such relaxation
cannot possibly be automatic and must be evaluated in light of the
specific facts and risks associated with each case, as has been
1
previously clarified.
25. Having given our anxious consideration to the submissions advanced
by both sides and upon careful perusal of the material on record, we
are of the view that the Appellant has not been able to make out a
case for grant of regular bail at this stage.
26. We say so for the reason that despite no direct recovery of contraband
effected from the Appellant, the Prosecution’s case is that he played a
coordinating and enabling role in facilitating the import of narcotics
concealed as talc through M/s Magent India—which he allegedly
controlled through a proxy. The consignment, although not seized with
heroin, shares structural and logistical similarities with those where
heroin was ultimately found.
27. The charge against the Appellant must also be evaluated in light of the
broader matrix of facts, including ( i ) his alleged meetings in Dubai
with a principal foreign accused; ( ii ) the transfer of documents
1
Union of India v. K.A. Najeeb, (2021) 3 SCC 713.
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through intermediaries for the clearance of a flagged consignment; ( iii )
efforts to retrospectively fabricate invoices and assign responsibility to
others; ( iv ) the use of multiple firms allegedly connected to him to
obfuscate the true nature of the transactions; and ( v ) his telephonic
calls to certain co-conspirators. These aspects, supported by the
statements of protected witnesses and circumstantial linkages,
currently meet the threshold of prima facie satisfaction regarding the
Appellant’s complicity.
28. This Court is cognizant of the fact that no heroin or narcotic
substances were directly recovered from the consignment linked to the
Appellant. However, the investigative narrative does not rest solely on
physical recovery but proceeds on the basis of conspiracy and
facilitation. In such cases, the absence of direct seizure is not
dispositive, particularly where there exists a pattern of covert
coordination, fictitious entities, and barter-based compensation—
features which, according to the prosecution, mark the smuggling
architecture employed in the present matter.
29. The Appellant faces serious charges, which allegedly carry grave
societal ramifications, including the facilitation of cross-border drug
trafficking—an offence with well-documented links to organised crime
and public health degradation. The seizure in the connected
consignment is part of what the Prosecution claims to be the largest
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heroin bust in Indian history, valued at over INR 21,000 crores. The
scale and sophistication of the operation, involving foreign syndicates,
shell firms, medical visas, and false documentation, elevates this case
far beyond routine NDPS violations.
30.
This Court also cannot ignore the fact that multiple key witnesses still
remain to be examined, and the trial while underway, will take time in
completion. Out of 24 most vulnerable or material witnesses, two have
died, and two others are untraceable. One of the deceased witnesses, a
retired Customs Officer, was found dead on the very day he was
scheduled to record his statement under Section 164 CrPC. The risk of
witness tampering or elimination—whether directly attributable to the
Appellant or not—is a real and present concern that militates against
the grant of bail at this stage.
31. Moreover, the Appellant’s criminal antecedents, though not involving
prior accusations under the NDPS Act, include multiple DRI and
customs proceedings involving smuggling of cigarettes, undervaluation
of imports, and alleged complicity in corruption offences. These
antecedents are relevant only for the limited purpose of evaluating the
Appellant’s propensity to interfere with the process of justice if
enlarged on bail.
32. NIA has also highlighted that several accused remain absconding,
including the primary foreign conspirators. In that context, the
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Appellant’s foreign travel, overseas connections, and financial capacity
cannot be overlooked in evaluating the possibility of flight risk. These
are not speculative concerns but flow directly from the Appellant’s
prior conduct and profile.
33.
We are conscious of the settled principle that pre-trial incarceration
should not translate into punitive detention. The Appellant has been
in custody since 24.08.2022, and while we do not find that this
duration alone warrants bail under the present circumstances, the
Appellant shall remain at liberty to renew his prayer for bail after a
period of six months, or upon substantial advancement in the trial,
whichever is earlier. Such a course would allow the Prosecution to
complete the examination of its core witnesses while preserving the
accused’s right to seek release at a later and more appropriate stage.
34. Before parting with this matter, we deem it necessary to clarify that, at
this stage, it would be premature and speculative to extend the
allegations against the Appellant to the domain of terror financing.
While the prosecution has invoked provisions of the UAPA and has
broadly linked the smuggling enterprise to trans-national syndicates
with suspected affiliations, there is no compelling reason to currently
link the Appellant and proscribed terrorist organisations, either within
or outside the country. The evidentiary foundation to sustain such a
grave allegation must be clear and compelling—something that, can be
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seen only after a substantial portion of evidence is led by both the
parties.
35. In light of the foregoing discussion, and without expressing any
opinion on the merits of the case, we dismiss the instant appeal with
the following directions:
i. We are not inclined to enlarge the Appellant on regular bail at
this stage. He shall be at liberty to renew his plea for regular
bail after a period of 6 months, or at a stage where the ongoing
trial has progressed substantially;
ii. The NIA is directed to submit to the Special Court an additional
list of witnesses who, in its assessment, are sensitive or
material, inasmuch as their testimony may have a direct
bearing on the role of the Appellant or other co-accused in the
ongoing trial and connected investigation;
iii. The Special Court is directed to list the matter twice in a month
and record the statements of Prosecution witnesses on a
continuous and uninterrupted basis; and
iv. If the Presiding Officer of the Special Court has not been posted
thus far, we request the Hon’ble Chief Justice of the High Court
of Gujarat to do the needful within a week.
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36.
As a measure of abundant caution and at the cost of repetition, we
make clear that this order shall not be construed as an expression of
opinion on the merits of the case and shall not prejudice the trial
proceedings in any manner.
37.
Ordered accordingly. Pending applications, if any, are disposed of.
..…………………… J.
(SURYA KANT)
…………………………………………………J.
(NONGMEIKAPAM KOTISWAR SINGH)
NEW DELHI
DATED: 13.05.2025
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