A) ABSTRACT / HEADNOTE

The case of Harpreet Singh Talwar @ Kabir Talwar v. The State of Gujarat through National Investigation Agency (2025) arises from one of the largest heroin seizures in Indian history, involving approximately 2,988.21 kilograms of heroin-laced talc stones smuggled into India through Mundra Port, Gujarat. The appellant, arraigned as Accused No. 24, was alleged to have played a central and coordinating role in the cross-border narcotics smuggling operation executed by Afghan-based syndicates in conspiracy with domestic actors. The prosecution attributed to him meetings in Dubai with a principal foreign conspirator, creation of shell firms like M/s Magent India under proxy names, orchestration of consignment clearances through intermediaries, fabrication of invoices to disguise transactions, and barter-style exchange of goods. He was charged under Sections 8(c), 21(c), 23(c), 29 of the NDPS Act; Sections 17, 18, 22C of the UAPA; and Section 120B IPC.

The appellant sought regular bail contending absence of direct recovery, lack of credible evidence, and violation of his Article 21 rights due to prolonged custody. Conversely, the prosecution emphasized the appellant’s integral role, risk of witness tampering, prior antecedents, and flight risk, invoking the rigors of Section 43D(5) UAPA. The Supreme Court held that while no narcotics were directly recovered from the appellant’s consignment, the circumstantial evidence, protected witness statements, and documentary linkages prima facie demonstrated complicity. In light of the gravity of charges, risk to witnesses, and the stage of trial, the Court denied bail, allowing him to renew his prayer after six months or substantial progress of trial.

Keywords: NDPS Act, UAPA, bail under Section 43D(5), heroin smuggling, Mundra Port seizure, cross-border conspiracy, flight risk, Article 21, narcotics trafficking.

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGMENT

The judgment emerges from investigations into a transnational heroin smuggling network alleged to have links with Afghan-based syndicates and domestic intermediaries. The Directorate of Revenue Intelligence (DRI) initially detected the offence in September 2021 when consignments of heroin concealed as talc powder were seized at Mundra Port, Gujarat. Given the international ramifications, the matter was transferred to the National Investigation Agency (NIA), which uncovered linkages to multiple accused, including the appellant.

The appellant, a businessman with prior involvement in import-export activities, was accused of facilitating the creation of shell firms such as M/s Magent India, allegedly used as conduits for narcotics imports disguised as commercial consignments. The prosecution emphasized his meetings with foreign conspirators like Raju Dubai, his coordination through intermediaries, and retrospective fabrication of documentary evidence.

The central issue before the Supreme Court was whether the appellant was entitled to regular bail under Section 439 CrPC in light of statutory restrictions imposed by Section 43D(5) UAPA. The Court was required to balance competing considerations: the appellant’s right to personal liberty under Article 21 and the gravity of offences linked to narcotics trafficking and national security. The case thus sits at the confluence of stringent statutory bars on bail and constitutional guarantees of liberty, requiring judicial scrutiny into the evidentiary threshold necessary for denial of bail.

D) FACTS OF THE CASE

In December 2020, a consignment of semi-processed talc weighing 21,880 kilograms, allegedly laced with heroin, arrived at Mundra Port under the cover of M/s Magent India, a proprietorship created in the name of Prince Sharma, an employee of the appellant. Investigations revealed that the appellant had met Raju Dubai, a foreign national orchestrating a heroin syndicate, in Dubai through Sunny Kakkar, agreeing to facilitate imports under the guise of talc consignments. The appellant allegedly instructed his accountant Sunil Jain to arrange registration of shell entities for import purposes.

Upon clearance, no remittance was made to the Afghan supplier; instead, barter goods like perfumes and dry fruits were allegedly routed to the appellant through parallel firms. When enforcement agencies began probing, the appellant allegedly attempted to shift responsibility by directing Amit Sharma to sign backdated authorization letters, and fabricated invoices in favor of his wife’s firm M/s Prabh International. The consignment was later linked through circumstantial evidence and telephonic records connecting the appellant to co-accused.

The appellant was taken into custody on 24 August 2022. While his name was not in the first charge sheet, a supplementary charge sheet in February 2023 arraigned him as Accused No. 24. He was charged under NDPS Act, UAPA, and IPC provisions. His bail pleas before the Special Court and Gujarat High Court were rejected, leading to the present appeal before the Supreme Court.

E) LEGAL ISSUES RAISED

i. Whether the appellant is entitled to regular bail under Section 439 CrPC despite the restrictions of Section 43D(5) UAPA.
ii. Whether absence of direct recovery of narcotics from the appellant negates a prima facie case under NDPS Act and UAPA.
iii. Whether prolonged pre-trial detention violates the appellant’s Article 21 rights.
iv. Whether circumstantial evidence, protected witness statements, and documentary trails suffice for denial of bail.
v. Whether the possibility of witness tampering and flight risk justifies continued custody.

F) PETITIONER / APPELLANT’S ARGUMENTS

The counsels for the appellant submitted that the case against him rests solely on circumstantial evidence, with no direct recovery of narcotics. They emphasized that 20 vulnerable witnesses examined so far had not implicated him, and the only consignment linked to him had been cleared after 100% customs inspection with no heroin recovery. The prosecution’s reliance on later consignments was termed “reverse engineering,” as there was no link between his cleared consignment and subsequent seizures.

It was argued that the alleged barter transactions of perfumes and dry fruits were never substantiated. Telephonic calls with Raju Dubai could not constitute conspiracy without corroborative evidence. The appellant, engaged in legitimate business for over 15 years, had no prior NDPS or UAPA convictions and was not a flight risk. Further, he had been in custody since August 2022, and indefinite detention would violate Article 21. Reliance was placed on Union of India v. K.A. Najeeb (2021) 3 SCC 713, where bail was granted despite Section 43D(5) UAPA due to prolonged incarceration.

G) RESPONDENT’S ARGUMENTS

The counsels for the NIA contended that the appellant was not incidental but a key facilitator in the network. M/s Magent India was a proxy entity created after his meeting with Raju Dubai, and his consignment bore operational similarities with later heroin-laden consignments. They argued that conspiracy under NDPS and UAPA does not require direct recovery, as meetings, calls, documentary manipulations, and witness statements demonstrated prima facie complicity.

They stressed that one witness died under suspicious circumstances on the day of deposition, and two others remain untraceable, indicating risks of witness elimination. Bail had already been denied to similarly placed co-accused under Section 43D(5) UAPA. Given his antecedents in smuggling and financial strength, he posed a flight risk. The sheer gravity of offences, linked to transnational syndicates and national security, warranted continued custody.

H) RELATED LEGAL PROVISIONS

i. Sections 8(c), 21(c), 23(c), 29 NDPS Act, 1985 – prohibition, punishment for possession, import, and conspiracy relating to narcotics.
ii. Sections 17, 18, 22C UAPA, 1967 – offences relating to raising funds for terrorist acts, conspiracy, and punishment for offences with weapons or hazardous substances.
iii. Section 120B IPC, 1860 – criminal conspiracy.
iv. Section 43D(5) UAPA – statutory bar on bail where accusations are prima facie true.
v. Article 21 Constitution – right to life and personal liberty.
vi. Section 439 CrPC – power of High Court and Sessions Court to grant bail.

I) JUDGMENT

The Supreme Court dismissed the appeal, holding that although no direct recovery of heroin was made from the appellant’s consignment, the circumstantial evidence, witness statements, and documentary manipulations established a prima facie case of conspiracy. The Court stressed that bail considerations under Section 43D(5) UAPA require only prima facie satisfaction, not proof beyond reasonable doubt.

The Court highlighted the appellant’s meetings in Dubai, use of proxy entities, attempts to fabricate invoices, and telephonic contacts with conspirators as sufficient grounds to deny bail. The seriousness of charges, scale of smuggling operation valued at over ₹21,000 crores, ongoing trial with key witnesses yet to testify, and risks of tampering and flight risk necessitated continued custody. However, the Court allowed the appellant to renew bail after six months or substantial trial progress.

a. RATIO DECIDENDI

The ratio lies in the interpretation of Section 43D(5) UAPA read with Article 21. The Court held that while prolonged detention may in some cases warrant bail (K.A. Najeeb), here, the prosecution had adduced sufficient prima facie material against the appellant, including meetings with foreign conspirators, proxy-controlled firms, and efforts to manipulate evidence. The absence of direct recovery was not decisive, as conspiracy liability extended beyond physical possession. Given risks to witnesses and national security, denial of bail was justified.

b. OBITER DICTA

The Court observed that linking the appellant to terror financing under UAPA was premature, as evidence did not yet connect him to proscribed organizations. It cautioned that allegations of terror funding must be based on clear, compelling evidence. The Court reiterated that pre-trial incarceration should not become punitive and allowed future bail consideration after substantial trial advancement.

c. GUIDELINES

i. Bail under Section 43D(5) UAPA requires only prima facie assessment, not meticulous scrutiny.
ii. Absence of direct recovery does not absolve liability for conspiracy under NDPS and UAPA.
iii. Risks of witness tampering or elimination weigh heavily against bail.
iv. Courts must balance Article 21 liberty against national security and the gravity of offences.
v. Bail can be reconsidered upon substantial trial progress or prolonged detention.

J) CONCLUSION & COMMENTS

The judgment underscores the delicate balance between liberty and national security in bail jurisprudence under UAPA and NDPS Act. While reaffirming K.A. Najeeb that constitutional rights can override statutory bars in exceptional cases, the Court emphasized that present circumstances justified continued detention. The prima facie complicity established through circumstantial linkages, coupled with the transnational scale of smuggling, justified a strict approach.

At the same time, by permitting reconsideration after six months, the Court preserved the appellant’s constitutional right to bail in future, ensuring incarceration does not become punitive. The judgment therefore reflects judicial restraint, safeguarding both prosecutorial concerns of witness protection and individual rights.

K) REFERENCES

Important Cases Referred

i. Union of India v. K.A. Najeeb, (2021) 3 SCC 713.

Important Statutes Referred

i. Narcotic Drugs and Psychotropic Substances Act, 1985 – Sections 8(c), 21(c), 23(c), 29.
ii. Unlawful Activities (Prevention) Act, 1967 – Sections 17, 18, 22C, 43D(5).
iii. Indian Penal Code, 1860 – Section 120B.
iv. Code of Criminal Procedure, 1973 – Section 439.
v. Constitution of India – Article 21.