₹20 Lakh Funding, BKI Letter Pad Recovered From House: J&K&L High Court Denies Bail To Accused In Narco-Terrorism Case

A Division Bench of Justice Sanjay Dhar and Justice Shahzad Azeem held that the accused, Gurpartap Singh, could not claim bail merely on the grounds of prolonged incarceration or parity with co-accused, particularly when the stringent bail restrictions under Section 43-D(5) of the Unlawful Activities (Prevention) Act (UAPA) and Section 37 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) remained applicable.

The Court noted that the prosecution alleged Singh had provided ₹20 lakh to facilitate an earlier consignment of 10 kg of heroin, procured distinctive bags to carry the money and directed reconnaissance of vulnerable points along the International Border near Arnia. It further observed that the evidence of several material witnesses, including protected witnesses and experts, was yet to be examined.

“The role of the appellant being that of a principal conspirator and fund raiser for BKI is not comparable, therefore, the appellant cannot claim parity as a matter of right,” the Bench observed.

Background

The case arose from an incident on September 20, 2020, when firing allegedly originating from the Pakistani side of the International Border was reported near Bulley Chak in the Arnia sector of Jammu. During subsequent search operations security personnel recovered 61.420 kg of heroin, 1.245 kg of opium, two pistols, three magazines and 100 live cartridges.

An FIR was registered at Police Station Arnia under Sections 307, 120-B and 121 of the Indian Penal Code and Sections 7 and 25 of the Arms Act. Given the alleged recovery of a commercial quantity of narcotics and the suspected involvement of BKI, the Central Government transferred the investigation to the National Investigation Agency (NIA).

The NIA subsequently filed a chargesheet against the accused, including Singh, under Sections 8, 21, 23, 27-A and 29 of the NDPS Act, read with Section 120-B IPC, and Sections 17, 18, 38, 39 and 40 of the UAPA. Charges were framed on August 23, 2022.

According to the prosecution, Singh was a central figure in a module allegedly involved in smuggling heroin and arms from Pakistan across the International Border to generate funds for BKI. He was alleged to have financed an earlier consignment, arranged distinctive bags for carrying money and directed reconnaissance of vulnerable border points to facilitate smuggling.

The prosecution also relied upon statements of protected witnesses, call records, documentary material and the recovery of an alleged BKI letter pad from Singh's house.

Singh challenged the Special NIA Court, Jammu's order rejecting his bail application. He contended that he had remained in custody for more than five years, that his right to a speedy trial under Article 21 of the Constitution had been violated, and that certain co-accused had already been granted bail.

He further argued that no recovery had been effected from him, that the disclosure statements relied upon by the prosecution were inadmissible and that the witnesses examined so far had not incriminated him.

The NIA opposed the appeal, maintaining that the statutory restrictions under the UAPA and NDPS Act applied and that sufficient prima facie material connected Singh with the alleged conspiracy.

Court's Observations

The Bench noted that the charges against Singh included offences under Sections 17 and 18 of the UAPA, falling under Chapter IV, and Sections 38, 39 and 40, falling under Chapter VI. Accordingly, the restrictions under Section 43-D(5) of the UAPA were attracted.

Since the prosecution also involved a commercial quantity of heroin, the Court held that the stringent conditions under Section 37 of the NDPS Act applied simultaneously.

The Bench observed that the twin statutory restrictions require the Court to be satisfied that there are reasonable grounds for believing that the accusation is prima facie untrue and that the accused is not guilty of the alleged offence and is unlikely to commit an offence while on bail.

Referring to the principles governing bail under these special statutes, the Court explained that the assessment at this stage is based on broad probabilities and does not require a detailed evaluation of evidence or a finding of guilt beyond reasonable doubt.

It also noted that once charges have been framed, it would be safe to assume that a strong suspicion had arisen from the material placed before the trial court.

Protected Witnesses, BKI Letter Pad And Distinctive Bags

Examining the material on record, including statements of prosecution witnesses and the recovery of the alleged BKI letter pad and distinctive bag from Singh's residence, the Bench found prima facie material indicating his alleged involvement in the larger conspiracy to smuggle commercial quantities of heroin and arms to raise funds for BKI.

The Court further noted that several material witnesses, including protected witnesses and experts, were yet to be examined. Reports relating to electronic gadgets allegedly recovered from the appellant's house, including CERT-In reports and SIM-card scrutiny, also remained to be considered.

In these circumstances, the Bench held that the stage had not been reached to record the satisfaction required under the twin statutory provisions for granting bail.

Prolonged Incarceration Not Sufficient To Secure Bail

The Court rejected the contention that prolonged incarceration and the right to a speedy trial, by themselves, warranted the appellant's release.

Relying upon the Supreme Court's decision in Gurwinder Singh v. State of Punjab, AIR 2024 SC 952, the Bench observed that the conventional principle that “bail is the rule and jail is the exception” does not apply in the ordinary manner to bail applications governed by the restrictive provisions of the UAPA.

The Court also considered the principles discussed in Union of India v. K.A. Najeeb, noting that delay in the trial of grave offences cannot automatically become a ground for bail when the trial is underway and material witnesses remain to be examined.

It observed that where material on record prima facie indicates involvement in alleged terrorist activities and the financing of a banned organisation, release on bail may create a risk of influencing key witnesses and hampering the administration of justice.

The Bench also rejected Singh's argument that he was entitled to bail because certain co-accused had already been released.

It held that parity is not an absolute or mechanical rule. Courts must compare the nature and gravity of the allegations, the specific role attributed to each accused, the degree of involvement and the stage of the trial before extending the benefit of parity.

The Court observed that this principle requires particular caution in cases involving offences under the UAPA and commercial quantities of narcotics under the NDPS Act.

In the present case, the prosecution alleged that Singh had played a central role in arranging funds, facilitating the receipt of smuggled consignments and identifying vulnerable border points. The statements of protected witnesses and other material witnesses allegedly attributed to him the role of organiser and financier of the module.

By contrast, the co-accused who had secured bail were allegedly assigned comparatively limited roles as carriers, local facilitators or persons involved in lesser stages of the conspiracy.

The Bench consequently held that Singh's alleged role was not comparable to theirs and that he could not claim bail as a matter of right on the basis of parity.

The Court also took note of the chargesheet indicating the appellant's alleged involvement in as many as 11 FIRs while considering the applicability of the stringent bail conditions under the NDPS Act.

Finding prima facie material indicating Gurpartap Singh's alleged complicity in the smuggling of commercial quantities of narcotics and the raising of funds for a banned terrorist organisation, the High Court found no ground to interfere with the Special NIA Court's order refusing bail.

The Bench accordingly dismissed the appeal and rejected the bail plea.