2025 INSC 662

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLAT E 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

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 a ssociates 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

previously clarified.

1

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