Harpreet Singh Talwar @ Kabir Talwar vs The State Of Gujarat on 10 April, 2026

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    Gujarat High Court

    Harpreet Singh Talwar @ Kabir Talwar vs The State Of Gujarat on 10 April, 2026

                                                                                                                     NEUTRAL CITATION
    
    
    
    
                              R/CR.A/15/2026                                     CAV JUDGMENT DATED: 10/04/2026
    
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                                                                                Reserved On   : 23.02.2026
                                                                                Pronounced On : 10/04/2026
    
                                        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    
                             R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
                                                     15 of 2026
                           ==========================================================
                                               HARPREET SINGH TALWAR @ KABIR TALWAR
                                                               Versus
                                                    THE STATE OF GUJARAT & ANR.
                           ==========================================================
                           Appearance:
                           DR ADITYA SONDHI, SENIOR COUNSEL with MR NIPUN KATYAL, with MR
                           MANAN SHARMA, MR SURYA SINGH RANA with MR DARSHIT H RAVAL(11887)
                           for the Appellant(s) No. 1
                           MR ANKIT SHAH(6371) with MR SANDEEP K SADAWARTE, MR
                           DHARMESH SINGH, Adv, MR GIRISH GOTHWAL, Dysp/CIO for the
                           Opponent(s)/Respondent(s) No. 2
                           MR CHINTAN DAVE, APP for the Opponent(s)/Respondent(s) No. 1
                           ==========================================================
                             CORAM:HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA
                                   and
                                   HONOURABLE MR.JUSTICE D. M. VYAS
    
                                                 CAV JUDGMENT
    

    (PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)
    CHRONOLOGY OF EVENTS BEFORE THE NIA
    COURT AND THIS COURT:

    1. The Directorate of Criminal Intelligence,
    Gandhidham, registered a case for the offences under the
    NDPS Act, which was relatable to the seizure of 2988.21
    Kgs. of narcotic drug (heroin). According to the National
    Investigation Agency (NIA), the consignment was sent
    from Afghanistan via Bandar Abbas Port Iran to Mundra
    Port, Gujarat and the heroin was imported in India,
    concealed with talc powder and was imported by a
    company named “Ashi Training Company”.

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    2. It appears that on the basis of intelligence input, the
    consignment was intercepted on 11.9.2021, leading to the
    seizure of a huge quantity of Heroin and on further
    investigation, there was another seizure made at Alipur,
    New Delhi, which led to arrest of several persons.

    3. Taking into consideration the magnitude of the
    offence, the Ministry of Home Affairs, in exercise of the
    powers under the NIA Act, transferred the case to the
    NIA on 6.10.2021 and accordingly, the NIA registered the
    case on 16.10.2021.

    4. The NIA after investigation, which led to the arrest
    of several persons, ultimately, on 14.3.2022, filed a
    charge-sheet against 10 accused persons and also against
    6 other wanted accused persons.

    5. A further investigation was continued, during the
    course of which, 9 other persons were arrested, and a
    supplementary charge-sheet was also filed on 29.8.2022.

    6. The appellant herein, was arrested on 25.8.2022 and
    he was arraigned as accused No.24 in the supplementary
    charge-sheet that was filed on 29.8.2022.

    7. Subsequently, further supplementary charge-sheets
    were also filed (details of which would not be necessary
    for the purpose of this case).

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    8. The appellant sought for grant of bail by making an
    application before the Session Court. However, the
    Sessions Court, by an order dated 13.7.2023, rejected
    said bail application.

    9. Being aggrieved, the appellant preferred a bail
    application before this Court being Criminal Appeal
    No.1980 of 2023. This Court, by an order dated
    28.3.2024, dismissed the Appeal and thereby confirmed
    the rejection of the bail application.

    10. Being aggrieved by the dismissal of his bail
    application and its affirmation by this Court, the appellant
    approached the Supreme Court by filing SLP (Criminal)
    No.8878 of 2024.

    11. At this stage, the orders passed by the Supreme
    Court, from time to time, till the disposal of the said SLP
    would be relevant and also necessary.

    CHRONOLOGY OF EVENTS BEFORE THE APEX
    COURT:

    12. The Supreme Court on 25.9.2024, taking note of the
    contentions of the appellant that the charges were yet to
    be framed and the charge-sheet ran into more than
    20,000 pages and as many as 500 persons were cited as
    witnesses and there was no possibility of conclusion of

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    trial in near future, proceeded to come to observe that
    instead of opining on the merits of the prayer for bail, it
    would be appropriate to issue directions to this Court to
    take up the appeals filed against the rejection of the
    applications for discharge and decide the same within 2
    months. The Supreme Court also directed the NIA Court
    seeking for discharge and decide the same by the next
    date of hearing.

    13. The Supreme Court also directed the NIA Court to
    immediately take up the matter for framing of charges
    and after affording a reasonable opportunity of hearing,
    the issue regarding the framing of charges should be
    decided before 30.11.2024. The Supreme Court also
    directed all the accused and their counsel and the Public
    Prosecutor to extend full cooperation. The Supreme Court
    also stated as follows:

    “8. Meanwhile, the prosecution will submit a list of
    vulnerable and private witnesses, who are required to
    be examined at the first instance.

    9. The Presiding Officer, NIA Court shall fix the date for
    recording the statements of such witnesses and the
    schedule of their examination shall be notified to
    counsel for the parties in advance. This will be subject
    to the protection of witnesses.

    10. It shall be the responsibility of NIA to produce those
    witnesses and no request for adjournment in this
    regard, shall be entertained.

    11. A Status Report shall be filed by the NIA before the date
    fixed. The Presiding Officer, NIA Court, Ahmedabad
    shall also send a Status Report regarding compliance of

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    the directions issued hereinabove.

    12. Post the matter for further consideration on
    18.12.2024.”

    14. In cprotection ompliance of the said order, a status
    report was filed on 17.12.2024 by the NIA. This status
    report was taken note of by the Apex Court, and it was
    noticed that the charges had been framed and the trial
    had formally commenced and the witnesses were also
    scheduled to be examined from 20.12.2024 onwards.

    15. The Supreme Court also took into consideration that
    the status report, which revealed that the prosecution
    proposed to examine 610 witnesses, out of which 85 had
    been identified as vulnerable and private witnesses. The
    Supreme Court, in its order dated 18.12.2024, stated as
    follows:

    “3. However, on a cursory look of the list of 85 witnesses,
    we find that some of them are Government officials or
    working in such institutions where it is difficult to
    accept that their version can be influenced by the
    accused.

    4. Consequently, we direct the Prosecutor to revisit the list
    of 85 vulnerable and private witnesses and further
    identify the most vulnerable and private witnesses only,
    some of whom shall be produced for examination before
    the Special Court on the date fixed 1.0., 20.12.2024.

    5. The Principal Judge, City Civil & Sessions Court,
    Bhadra, Ahmedabad is directed to list the trial at least
    three times in a month for recording the evidence. For
    this purpose, if need be, he will be relieved from other
    urgent or time bound cases.

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    6. The Registrar General of the Gujarat High Court is,
    accordingly, directed to take up the matter with the
    High Court on administrative side and see that the
    Presiding Officer is able to devote sufficient time for
    expeditious conclusion of this trial.

    7. Post the matter on 03.02.2025.

    8. Before the next date of hearing, the Trial Court shall fix
    at least three more dates after 20.12.2024 and record
    statement of most vulnerable witnesses. A status report
    shall be sent by the Presiding Officer of the Court before
    the next date of hearing.”

    16. On 3.2.2025, the Supreme Court took notice of the
    fact that out of 24 most vulnerable and private witnesses
    which had been identified, 9 witnesses had already been
    examined and it proceeded to pass an order impressing
    upon the prosecution that on the next dates of hearing,
    the witnesses pointed out by the appellant should be
    examined first along with other remaining vulnerable
    witnesses and directed the Special Court to continue to
    list the trial in terms of the time-line mentioned in the
    order dated 8.12.2024 and also directed to file a fresh
    status report and directed the matter to be listed on
    5.3.2025.

    17. The Supreme Court took note of the status report
    and also took note of the fact that the Presiding Officer
    had been recommended for elevation and therefore
    requested this Court to consider the desirability of
    posting a new Presiding Officer who would continue with
    the endeavour to record the statements of the vulnerable

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    witnesses at the earliest.

    18. The Supreme Court also noticed that the depositions
    of 6 remaining witnesses should be recorded before the
    next date of hearing and adjourned the matter to
    5.3.2025.

    19. On 5.3.2025, the Supreme Court took the status
    report filed by the NIA, perused it and proceeded to
    direct the NIA Special Court to continue to examine the
    witnesses on day-to-day basis and the remaining
    witnesses were ordered to be examined at the earliest,
    preferably before the next date of hearing, i.e. 26.3.2025.

    20. The Supreme Court took note of the status report
    and also the fact that the NIA had supplied a list of 24
    most important / vulnerable witnesses and out of them,
    16 had been examined, while two of them had passed
    away. It also took note of the fact that the Presiding
    Officer of the NIA Court had been recommended for
    elevation and therefore, it requested this Court to post a
    new Presiding Officer as soon as the Presiding Officer
    was elevated and the Supreme Court also observed that
    the Special Court should continue with its endeavour to
    record the statements of the vulnerable witnesses at the
    earliest and expressed a hope that the depositions of the
    remaining 6 witnesses should also be recorded before the
    next date of hearing, i.e. 16.4.2025.

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    21. On 16.4.2025, the Supreme Court took into
    consideration the status report that was filed by the NIA
    and observed and noticed that out of the 24 vulnerable
    and most important witnesses, 20 had already been
    examined and two had passed away and two were
    untraceable and the matter was thereafter adjourned to
    consider the submissions of the Union on merits and the
    matter was ordered to be posted on 23.4.2025.

    22. On 23.4.2025, the arguments were heard and the
    orders were reserved.

    23. On 13.5.2025, the Supreme Court disposed of the
    SLP and proceeded to observe that the appellant had not
    been able to make out a case for grant of regular bail.

    24. However, the operative portion of the order passed
    by the Supreme Court, would be relevant, which is as
    follows:

    “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

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    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.”

    25. The above set of orders have been narrated only to
    emphasize the fact that the Apex Court monitored the
    conduct of the entire case by the NIA Court, firstly by
    directing the NIA Court to consider the issue of framing
    the charges and secondly, after the trail commenced,
    pass orders directing the examination of vulnerable and
    protected witnesses, thereby ensuing an expeditious trial,
    at least in so far as the witnesses who were relevant in so
    far as the appellant was concerned.

    26. It must also be pertinent to state here that though
    the Supreme Court came to the conclusion that the
    appellant was not entitled to be enlarged on bail, it
    nevertheless, took into consideration that the appellant
    had been in custody since 24.8.2022 and observed that
    though that duration of about 3 years by itself would not
    be a ground for grant of bail, it proceeded to grant liberty
    to the appellant, to renew his prayer for bail after a
    period of six months or at a stage where the ongoing trial
    has progressed substantially, whichever is earlier. The

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    Supreme Court clearly observed that such a course would
    allow the prosecution to complete the examination of its
    core witnesses while preserving the right of the accused
    to seek release at a later and more appropriate stage.

    27. It may also be pertinent to state here that the
    Supreme Court while disposing of the appellant’s SLP
    also directed the NIA to submit to the Special Court an
    additional list of witnesses who in its assessment were
    sensitive or material and their testimony would have a
    direct bearing on the role of the appellant or the other
    accused in the ongoing trial and connected investigation.
    The Supreme Court also directed that the matter should
    be listed twice in a month for recording of the statements
    of the prosecution witnesses on a continuous and
    uninterrupted basis.

    28. The direction of the Supreme Court to the NIA to
    submit an additional list of witnesses, who in its
    assessment were sensitive or material, was however not
    complied with by the NIA.

    29. The appellant, thereafter, proceeded to file another
    Special Leave Petition (Criminal) Diary No.69493 of 2025
    before the Apex Court. In this SLP, once again, the
    appellant sought to challenge the order dated 28.03.2024
    passed by this Court, by which this Court had affirmed
    the rejection of the bail by the NIA Court.

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    30. The Supreme Court, on hearing, proceeded to pass
    an order in the following terms:

    “3. It is not in dispute that the said judgment was earlier
    challenged in SLP(Crl.) No.8878/2024 in which leave
    was granted and the Criminal Appeal was disposed of
    vide judgment dated 13.05.2025 with certain directions.
    Applying the doctrine of merger, there can be no
    quarrel that the judgment dated 28.03.2024 of the High
    Court is no longer in question. The instant Special Leave
    Petition is, thus, not maintainable. The same is,
    accordingly, dismissed. However, in terms of the liberty
    granted by this Court, the petitioner may be well-
    advised to approach the High Court with a fresh
    petition/application for the grant of bail. Such a
    petition/application shall be considered by the High
    Court on merits in light of the observations already
    made by this Court in the previous decision dated
    13.05.2025.

    4. We request the High Court that if such an application is
    made within one week, the same shall be disposed of
    expeditiously and preferably within four weeks.

    5. As a result, the pending interlocutory application also
    stands disposed of.”

    31. As could be seen from the above, though the
    Supreme Court dismissed the said Special Leave Petition,
    on the grounds of its maintainability, it however
    proceeded to state that by virtue of the liberty granted by
    the Supreme Court on 13.5.2025, the appellant could
    approach this Court with a fresh application for grant of
    bail and that such an application was required to be
    considered by this Court in the light of the observations
    already made by the Supreme Court in its order dated

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    13.5.2025.

    32. Pursuant to the said order passed by the Supreme
    Court, the present appeal has been preferred.

    SUBMISSIONS ADVANCED BY THE APPELLANT:

    33. Learned Senior counsel, Dr. Aditya Sondhi
    appearing for the appellant, contended that the appellant
    was in custody from 25.8.2022, i.e., he had been
    incarcerated for more than 40 months and on that score
    alone, he was entitled to be released on bail. He sought to
    place reliance on the judgments of the Apex Court, an
    inordinate delay in the conclusion of the trial resulting in
    a long incarceration, coupled with the fact that there was
    no possibility of the trial being concluded in the near
    future, entitles the person in custody to be granted bail
    only on that ground and without reference to the normal
    considerations for grant of bail, i.e. gravity of the
    offences, etc.

    34. Dr. Sondhi also pointed out that though the Supreme
    Court in its order dated 13.5.2025 had granted liberty to
    the NIA to submit a list of witnesses which in its
    assessment were sensitive or material, the NIA had not
    chosen to furnish the list of witnesses, which thereby
    indicated that there were no sensitive witnesses to be
    examined and that the NIA wanted to protract the trial

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    only to perpetuate the incarceration of the appellant.

    35. Dr. Sondhi submitted that if the NIA was really
    interested in the conclusion of the trial and the recording
    of the witnesses in relation to the appellant’s role in the
    entire episode, they ought to have filed the list of
    witnesses promptly. Dr. Sondhi highlighted the fact that
    the NIA chose to file the list of witnesses only after this
    Court during the course of hearing wanted to know
    whether the direction of the Supreme Court to the NIA to
    file a list had been complied with and the NIA had
    responded that, by filing an application before the Special
    Court and submitting a revised list of 71 total witnesses
    which were included but left out the original list
    containing 85 witnesses. Dr. Sondhi pointed out that the
    NIA was basically seeking to get over the order of the
    Supreme Court by stating that 71 witnesses as per the
    additional list were required to be examined and this by
    itself proved that the intention of the NIA was to protract
    the trial.

    36. Learned Senior counsel Dr. Sondhi argued that once
    24 witnesses had been identified by the Supreme Court
    and 20 out of 24 had been examined (two were dead and
    two were not traceable), the entire set of witnesses who
    were considered as vulnerable had already been
    examined and therefore there was no justification for
    denial of bail as the entire evidence against the appellant

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    was already on record.

    37. Dr. Sondhi pointed out the fact that NIA chose not to
    file the list and came out with the list only after the said
    lacuna being pointed out by this Court, during the course
    of hearing of this appeal, only indicated their deliberate
    inaction. Dr. Sondhi submitted that since the NIA did not
    take advantage of the direction of the Supreme Court to
    furnish a list of witnesses and get them examined though
    more than 9 months had elapsed, that factor, by itself,
    was sufficient to enlarge the appellant on bail.

    SUBMISSIONS OF NIA:

    38. In response, learned counsel Mr. Ankit Shah
    appearing on behalf of the respondent NIA submitted that
    the appellant cannot take advantage of the delay in the
    trial more so when the NIA was examining the witnesses
    promptly.

    39. Mr. Shah pointed out that after the Supreme Court
    dismissed the Special Leave Petition on 13.5.2025, a total
    of 19 witnesses had been examined. He submitted that
    out of the list of 85 witnesses that it wanted to examine,
    13 had been dropped and there remained 23 witnesses
    from out of the list of 85 witnesses to be examined and an
    additional 48 witnesses, who were required to be
    examined, in all he submitted that 17 witnesses were
    required to be examined and until the depositions of

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    these other witnesses were concluded, the appellant was
    not entitled to be enlarged on bail especially when the
    Supreme Court had on the merits of the appellant’s claim
    concluded that a case of grant of bail had not been made
    out by the appellant.

    40. Learned counsel Mr. Ankit Shah also submitted that
    for the grant of bail on the ground of an inordinate delay
    in the conclusion of the trial, the courts were still
    nevertheless required to examine the claim for grant of
    bail on merits of the case and the factor of delay alone
    cannot be the criteria for grant of bail. He placed
    emphasis on the decision rendered by the Supreme Court
    in the case of Gulfisha Fatima v. State (Govt of NCT of
    Delhi
    ) reported in (2026) SCC OnLine SC 10 in support
    of this contention.

    41. After the arguments were heard and the judgment
    was reserved, written submissions was filed by the
    counsel for the appellant and also by the counsel for the
    respondent NIA. The authorities on which they placed
    reliance were also filed.

    POINTS THAT ARISE FOR CONSIDERATION IN
    THIS APPEAL:

    42. In the light of the above, the point to be considered
    in this appeal is as to whether the appellant is entitled for
    grant of bail on the ground that has been an inordinate

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    delay for the trial to be concluded despite the specific
    orders passed by the Apex Court.

    THE CONCEPT OF BAIL DURING INVESTIGATION,
    AFTER INVESTIGATION AND DURING TRIAL:

    43. At the outset, it would be necessary to state the legal
    position regarding the grant of bail.

    44. The word “bail” is not defined under the Code of
    Criminal Procedure
    , 1973 (“Cr.PC” for short), though it
    has been defined under the Bharatiya Nagrarik Suraksha
    Sanhita, 2023 (“BNSS” for short).

    45. “Bail” would essentially mean the release of a
    person who has been arrested on the suspicion of
    committing an offence rending his trial. Certain offences
    are bailable, meaning on being arrested, the person
    arrested is entitled to demand to be enlarged on bail
    subject to furnishing of a bond or sureties. The persons
    who are so arrested will have to be released by the police
    if the offence is bailable and the person arrested offers to
    execute a bond and / or furnishes sureties.

    46. Certain offences are made non-bailable, thereby
    meaning that the police after arresting a person have no
    right to enlarge him on bail. The person who is arrested
    in connection with a non-bailable offence, would have to
    be necessarily be produced within 24 hours before the

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    nearest Magistrate as provided under Section 57 of the
    Cr.PC.

    47. Section 167 of the Cr.PC stipulates that, whenever
    any person is arrested and is detained in custody, and the
    investigation cannot be completed within the period of 24
    hours (as envisaged under Section 57) the officer in
    charge of the police station or the police officer making
    the investigation, is satisfied that the accusation against
    him is well founded, he is required to transfer to the
    nearest judicial magistrate a copy of the entries in the
    diary relating to the case and also at the same time
    produce the accused before the magistrate.

    48. The Magistrate before whom such an accused is
    produced is empowered to authorize the detention of the
    accused in such custody as he thinks fit for a term not
    exceeding 15 days. The Magistrate is, however, precluded
    from authorizing the detention of the arrested person for
    a total period exceeding 90 days or 60 days which is
    dependent on the punishment prescribed for the offence
    which is alleged to have been committed by the arrested
    person. The magistrate cannot also authorize the
    detention of the accused until the accused is produced
    before him in person.

    49. Section 437 of the Cr.PC entitles the person accused
    of committing an non-bailable offence to seek for bail

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    when he is brought before a court (other than the High
    Court or Court of Session).

    50. At this stage, it must be relevant to state that the
    investigation of the offence alleged against the accused is
    still pending and at that stage, i.e. the investigation stage,
    the court is empowered to release the accused on bail if
    the conditions under 437(1) and (2) are satisfied.

    51. However, in respect of the offences under the NDPS
    Act
    , by virtue of Section 37, the requirement of granting
    bail is governed by twin conditions specified under
    Section 37(1)(b)(i) and (ii).

    52. In addition to the conditions laid down in section
    37(1)(b)
    , by virtue of Section 37(2), the limitations
    prescribed under the Cr.PC, i.e. under Section 437(1)
    sub-section (1) and (2), are also made applicable for the
    purpose of granting bail. Simply put, whenever a person
    is accused of an offence under the NDPS Act, the grant of
    bail is governed by the conditions imposed not only by the
    Cr.PC but also by the specific provisions in the NDPS Act,
    which are more stringent than the conditions prescribed
    under the CrPC.

    53. It is to be stated here that the grant of a bail for a
    person accused of committing an offence in which the
    investigation has just started, would be completely
    different as compared to the considerations for granting

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    bail after the investigation is completed.

    54. If the investigation is not completed within a
    specified time limit, the person arrested becomes entitled
    for grant of bail and this is popularly called “default bail”.

    55. On conclusion of the investigation, the Cr.PC
    requires the police to file a final report under Section

    173. On a final report being filed, the Magistrate is
    empowered under section 173(4) to make such order as
    he deems fit relating to the custody of the accused, if the
    accused has been released on bond. Thus, on a final
    report being filed, the magistrate is, in fact, empowered
    to discharge the bond on which the accused had been
    released and thereby order him to be taken into custody.

    56. Section 209 of the Cr.PC mandates that when a case
    is instituted on a police report or otherwise and, the
    accused is brought before the magistrate and if it appears
    to the magistrate, the offence is triable exclusively by the
    court of session, he is required to commit the case to the
    court of sessions.

    57. The Magistrate, at that stage, is also empowered to
    remand the accused to custody until such commitment
    being made. The Magistrate is also entitled to remand the
    accused to custody during and after the conclusion of the
    trial and in both these cases, this would be subject to the
    subject to the provisions of the Code relating to grant of

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    bail. Thus, if the accused has been released on bail during
    the investigation, on the final report being filed and the
    magistrate coming to the conclusion that it is a case
    triable by the court of sessions, he is empowered to
    discharge the bond and remand the accused to custody
    until the commitment has been made. This, grant of bail,
    as narrated above, is at a stage where the investigation
    has commenced and has been concluded.

    58. The Cr.PC thereafter contemplates that in respect of
    cases to be tried by a court of sessions on the accused
    being produced before the court pursuant to the order of
    commitment made under section 209, the prosecution is
    required to open the case by describing the charge
    brought against the accused and stating that what
    evidence he proposed to prove the guilt of the accused.

    59. The Sessions court upon consideration of the case
    and the document submitted to him and after hearing the
    submissions of both the accused and the prosecution,
    would be entitled to discharge the accused if he considers
    that there is insufficient materials or insufficient grounds
    for proceeding against the accused.

    60. At this stage, even if the accused has been
    remanded to custody, the accused by virtue of the
    discharge will be automatically set free. If, however, the
    sessions court finds that there are grounds for proceeding

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    against the accused, the trial would commence and after
    a trial, the sessions court would either proceed to pass an
    order of acquittal or a conviction. If the accused is in
    custody, he would therefore continue to remain in
    custody until the Session court rendered its final
    judgment of acquittal or conviction.

    61. At this stage, it must be stated and emphasized that
    after the charges were framed and the trial has
    commenced, if the accused is in custody, his entitlement
    to seek for bail is provided only under 436A of the CrPC.

    62. It may be pertinent to state here that the
    considerations for grant of a bail at the investigation
    stage and on the conclusion of the investigation would be
    different as compared to the considerations for grant of
    trail after the trial has commenced. After the trial has
    commenced, the rigors of Section 437 of the Cr.PC and in
    case of NDPS Act under Section 37 would stand altered
    and this is because there is a specific provision made
    under which an under-trial prisoner is entitled for grant
    of bail i.e., Section 436A of Cr.PC, which reads as follows:

    “436A. Maximum period for which an undertrial
    prisoner can be detained.–Where a person has, during
    the period of investigation, inquiry or trial under this
    Code of an offence under any law (not being an offence for
    which the punishment of death has been specified as one
    of the punishments under that law) undergone detention
    for a period extending up to one-half of the maximum
    period of imprisonment specified for that offence under
    that law, he shall be released by the Court on his personal

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    bond with or without sureties:

    Provided that the Court may, after hearing the Public
    Prosecutor and for reasons to be recorded by it in writing,
    order the continued detention of such person for a period
    longer than one-half of the said period or release him on
    bail instead of the personal bond with or without sureties:

    Provided further that no such person shall in any case be
    detained during the period of investigation, inquiry or
    trial for more than the maximum period of imprisonment
    provided for the said offence under that law.”

    63. In the light of Section 436A of Cr.PC, the
    considerations for grant of bail after the trial has
    commenced would only be the delay in conclusion of the
    trial and this would be if the accused is in custody.

    64. It may be pertinent to state here that if the accused
    has been enlarged on bail during the period of
    investigation, inquiry or trial, he would not get the benefit
    of maximum period of detention envisaged under Section
    436A. In other words, only if an accused is in custody
    throughout the period of investigation and continued to
    be in custody, even during trial, he would be entitled to
    the benefit of Section 436A.

    65. The question as to whether the benefit of bail
    envisaged under Section 436A is applicable to offences
    under the NDPS Act or not is covered by the decision
    rendered by the Supreme Court in Mohd. Muslim Alias
    Hussain v. State (NCT of Delhi
    ) reported in (2023) 18
    SCC 166, in which, it has been held as follows:

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    “16. In the most recent decision, Satender Kumar Antil v.

    Central Bureau of Investigation prolonged incarceration
    and inordinate delay engaged the attention of the court,
    which considered the correct approach towards bail, with
    respect to several enactments, including Section 37 NDPS
    Act. The court expressed the opinion that Section 436A
    (which requires inter alia the accused to be enlarged on
    bail if the trial is not concluded within specified periods)
    of the Criminal Procedure Code, 1973 would apply:

    “86………We do not wish to deal with individual
    enactments as each special Act has got an objective
    behind it, followed by the rigour imposed. The general
    principle governing delay would apply to these
    categories also. To make it clear, the provision
    contained in Section 436-A of the Code would apply to
    the Special Acts also in the absence of any specific
    provision. For example, the rigour as provided under
    Section 37 of the NDPS Act would not come in the way
    in such a case as we are dealing with the liberty of a
    person. We do feel that more the rigour, the quicker the
    adjudication ought to be. After all, in these types of
    cases number of witnesses would be very less and there
    may not be any justification for prolonging the trial.
    Perhaps there is a need to comply with the directions of
    this Court to expedite the process and also a stricter
    compliance of Section 309 of the Code.”

    66. It may be pertinent to state here that in Mohd.
    Muslim
    ‘s case also, the Supreme Court was considering
    the grant of bail to the accused who were charged for
    committing the offences punishable under the NDPS Act.

    67. It is, thus, the law that the statutory embargo for
    grant of a bail during the pre-trial stage cannot be
    pressed into service if the trial has commenced and there
    has been a prolonged incarceration due to an inordinate

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    delay in the conclusion of the trial.

    68. In fact, in this very case, the Supreme Court in its
    order dated 13.5.2025 has itself stated in para 24 as
    under:

    “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.”

    69. It is, therefore, clear that if there is an inordinate
    delay in the conclusion of the trial, the incarceration can
    be considered as punitive, and Article 21 would come into
    operation entitling the person incarcerated to be released
    on bail. Thus, the argument of NIA that even when there
    is a delay in the conclusion of the trial, the normal
    consideration for grant of bail as envisaged under Section
    37
    of NDPS Act or under Section 43(d)(5) of the Unlawful
    Activities (Prevention) Act, 1967 would be untenable.

    WHETHER THERE HAS BEEN A DELAY IN THE
    CONDUCT OF THE TRIAL INSOFAR AS PRESENT
    APPELLANT IS CONCERNED IN THIS CASE

    70. As narrated in this judgment above, the appellant
    herein was arrested on 25.8.2022 and has been in
    custody ever since, i.e., the appellant has been in custody

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    for 3 years and 8 months.

    71. The request of the appellant to be enlarged on bail
    was considered on its merits by the Sections Court and
    was rejected. This rejection of bail by the Sections Court
    was confirmed by this Court and also by the Supreme
    Court.

    72. It may be relevant to notice here that at the relevant
    point of time, the case was still under investigation, and
    the trial was yet to commence. When the matter reached
    the Apex Court against the grant of rejection of bail, the
    Supreme Court on 25.9.2024 took note of the fact that
    charges were yet to be framed and instead of opining on
    the merits of the prayer for bail, thought it fit to issue
    certain directions which were directed to ensure the
    examination of all the witnesses who were relevant as
    against the appellant.

    73. The directions issued to the NIA Court were to (a)
    immediately take up the matter for framing of charge and
    after hearing the parties, decide on the issue regarding
    framing of the charge (b) to submit a list of vulnerable
    and private witnesses who were required to be examined
    at the first instance (c) to fix the date for recording the
    statements of such witnesses and notify the schedule to
    the parties in advance. The Supreme Court made it clear
    that it would be the responsibility of the NIA to produce

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    those witnesses and no request for adjournment to
    produce witnesses should be entertained. Therefore, it is
    clear that the Supreme Court basically monitored the
    conduct of the entire case and ensured that the trial
    commenced and all the vulnerable and important
    witnesses were examined. It must be borne in mind, the
    continuance of the appellant in custody facilitated that
    the witnesses were protected from the likelihood of being
    put under any kind of influence and consequentially
    ensure a fair trial.

    74. Thereafter, by a series of orders, over a period of
    nearly eight months from September 2024 till the
    disposal of the SLP filed by the appellant in May 2025,
    the Supreme Court closely monitored the trial and
    thereby ensured that the most vulnerable and important
    witnesses were examined. This monitoring basically
    ensured that the trial by the NIA Court was expedited and
    the witnesses who were vulnerable and who could have
    been influenced or intimidated were examined and their
    evidence came on record.

    75. Even after all the vulnerable witnesses were
    examined, the Supreme Court, consciously, directed the
    NIA to furnish an additional list of witnesses which it
    thought was important and sensitive and at the same time
    gave the appellant liberty to seek for bail after 6 months
    or after the trial had progressed substantially. This

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    clearly indicated that the Apex Court was expecting the
    NIA to ensure that all the witnesses who were relevant in
    so far as the appellant were examined and the appellant
    would thereafter have the opportunity to seek for bail.

    76. The Supreme Court by directing the NIA to submit
    an additional list of witnesses basically granted one more
    opportunity to the NIA to examine those witnesses who
    were considered as sensitive or material in relation to the
    role of the appellant. Obviously, those witnesses to be
    cited in the additional list were required to be examined
    within the period of 6 months. However, despite the
    specific directions to ensure that all the witnesses who
    were considered as sensitive and material were
    examined, the NIA did not even furnish the additional list
    of witnesses which it had thought was sensitive or
    material.

    77. It is only when this appeal was taken up for
    consideration, pursuant to the order passed by the Apex
    Court on 18.12.2024, on this aspect being pointed out by
    this Court did the NIA file a list of additional witnesses
    only on 3.2.2025.

    78. An affidavit has been filed before this Court to the
    following effect:

    “2. It is submitted that in compliance of oral directions of
    this Hon’ble Court date 18.02.2026, the prosecution

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    (NIA) by way of this Affidavit hereby undertakes to fully
    cooperate and not seek any adjournment before the Ld.
    Special Court, NIA Ahmedabad during the period of day-

    to-day trial qua the examination of the 23 sensitive or
    material witnesses against the Appellant A-24 in
    compliance of the day-to-day trial Order passed by the
    Ld. Special Court dated 13.02.2026, in the interest of
    justice of this case. The prosecution further submits that
    the examination of the 23 sensitive or material witnesses
    may require approx. 02 (two) months’ time and for the
    same, this Hon’ble Court may kindly grant sufficient time
    to the Ld. NIA Special Court. Annexed herewith and
    marked as D-1 is the Application dated 13.02.2026 along
    with the order dated 13.02.2026, for kind perusal of this
    Hon’ble Court.”

    79. Thus, despite the order of 13.5.2025 permitting the
    NIA to file an additional list, the list ultimately came to be
    filed only 9 months after the order was passed.

    80. As could be seen from the affidavit, the NIA has
    stated that 23 sensitive and material witnesses who were
    relevant insofar as the role of the appellant is concerned,
    would have to be examined and they were requesting the
    NIA Court to take up the trial on a day-to-day basis. The
    NIA has also stated that it would require 2 months for
    completing the examination of the 23 witnesses.

    81. In other words, 9 months after the order passed by
    the Apex Court, the NIA is of the view that it required two
    more months to complete the deposition of the remaining
    witnesses that it considers sensitive or material in so far
    as the appellant in concerned. In effect the period of 6
    months stipulated by the Apex Court has been extended

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    by a period of 3 months and the NIA states that it
    required 2 more months. The NIA has thereby virtually
    doubled the period of time granted by the Apex Court for
    the examination of the witnesses who were relevant
    against the appellant.

    82. The cumulative effect of these facts leaves no room
    for doubt that despite specific timelines stipulated by the
    Apex Court for the conduct of the trial both during the
    pendency of the SLP and the ultimate timeline of 6
    months to conduct the trial while disposing off the SLP,
    the NIA has not ensured the deposition of all the
    witnesses against the appellant thereby establishing that
    there has been an inordinate delay in the conduct of the
    trial, even in the face of the orders passed by the Apex
    Court.

    83. Be that as it may, the following events have occurred
    which would be highly relevant for the purposes of
    considering this appeal.

    84. The appeal was heard and the orders were reserved
    on 23.2.2026. The learned counsel for the NIA was
    granted a week’s time to file his written submissions,
    which were ultimately filed thereafter. A request was also
    made by the appellant after the orders were reserved to
    file the written submissions, and this request was also
    granted, and the written submissions were filed on

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    5.3.2026.

    85. On 20th March 2026, the NIA filed an affidavit in
    which it was stated as follows:

    “2. It is submitted that in compliance of the affidavit dated
    21.02.2026 filed before this Hon’ble Court, with the
    submissions to examine the 23 sensitive or material
    witnesses against the Appellant A-24 within 02 (two)
    months before Ld. Special Court, it is submitted that Ld.
    Special Court has started examination of these
    witnesses from 17.02.2026 on day-to-day basis.

    3. It is further submitted that since 17.02.2026, total 18
    witnesses, out of 23 witnesses, have been examined till
    17.03.2026. 01 witness Shri Gulab Chand Yadav, has
    expired on 21.06.2024. 01 witness Shri Manjeet Singh is
    medically unfit to travel as opined by his doctor for
    recurrent infections, lung disease and kidney diseases.
    02 witnesses i.e. Zia-Ullah Yousufi and Protected
    witness “SJ” are untraceable at the available address,
    efforts to locate them are underway. Ld. Court has fixed
    NDOH for 23.03.2026 for evidence of witness Nand
    Kishor.”

    86. As could be seen from the above, just before the
    orders were reserved in this appeal, the NIA Court has
    taken up the examination of witnesses on a day to day
    basis from 17.2.2026 and within a period of a month, the
    examination of all but one of the 23 sensitive witnesses
    who were relevant in so far as the role of the appellant
    were concerned has been completed.

    87. On 6th April 2026, an affidavit was filed by the
    appellant, in which it has been stated as follows:

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    “3. It is further submitted that the NIA, filed an additional
    affidavit before this Hon’ble Court on 20.03.2026,
    stating that, total 18 witnesses out of 23 witnesses, have
    been examined till 17.03.2026, 01 witness Gulab Chand
    Yadav passed away on 21.06.2024, 01 witness Shri
    Manjeet Singh is medically unfit to travel as opined by
    his doctor for recurrent infections, lung diseases and
    kidney diseases. 02 witnesses namely Zia-Ullah Yousufi
    and Protected Witness “SJ” are untraceable at the
    available addresses. The NIA further stated that only 1
    remaining witness namely Nand Kishore was scheduled
    to be examined on 23.03.2026.

    4. It is submitted that the said only witness qua the
    Appellant herein namely Nand Kishor was examined on
    23.03.2026 as PW-66. It is further submitted that, now,
    even as per the Respondent Agency, NIA, no witness
    remains to be examined qua the present Appellant. A
    true and correct copy of the deposition dated
    23.03.2026 of PW-66, namely Nand Naval Kishor is
    annexed herewith and marked as ANENXURE X-1.”

    88. As could be seen from the above, the last of the 23
    witnesses has also been completed and therefore all the
    witnesses who were considered as sensitive or material in
    so far as the appellant is concerned have been completed.
    In other words, all the evidence that the NIA wished to
    adduce against the appellant has come on record.

    89. In view of this fact, it is clear that the question of the
    possibility of the appellant being in a position to influence
    the examination of the witnesses would not be possible
    and the appellant would not be in a position to do any act
    which can undermine the trial.

    90. The objective of the Apex Court to ensure that all the
    witnesses who were relevant in so far as the appellant is

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    concerned are examined also stands fulfilled and the
    request of the appellant for grant of bail will have to be
    considered in this context and in the background of the
    fact that the apex court had reserved liberty to the
    appellant to renew his application for bail after 6 months.

    91. The completion of the examination of all the
    witnesses who were relevant in so far as the appellant
    and who were considered as sensitive or relevant having
    been completed, the appellant would be entitled for grant
    of bail. It is to be borne in mind that the trial of the case
    will obviously consume a large amount of time given the
    fact that there are several numbers of witnesses cited by
    the NIA who are yet to be examined to establish the role
    of the other accused in the case. The need to keep the
    appellant in custody till the examination of all the other
    witnesses would be unfair to the appellant, more so, when
    all the evidence that the NIA wanted to adduce against
    him as already come on record.

    92. We are therefore of the view that the appellant
    herein is entitled to be released on bail, and we
    accordingly grant bail to the appellant on conditions that
    the trial court may impose which in its view are necessary
    to secure the presence of the appellant on every date of
    hearing.

    93. If the appellant makes any attempt to protract the

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    trial or engages in any act which the NIA Court deems
    detrimental to the conduct of the trial and delays the
    conduct of the case, it would be at liberty to seek for
    cancellation of bail and for remanding the appellant to
    custody once again.

    94. It is also necessary to clarify here that this order
    cannot be used by the other accused on the ground of
    parity. This order is being passed in the peculiar facts of
    the case i.e., the direction of the Supreme Court to the
    NIA to furnish an additional list of witnesses who were
    relevant in so far as the appellant was concerned and also
    because the Apex Court had granted liberty to the
    appellant to seek for bail after the expiry of 6 months or
    the progress of the trial.

    95. It may be pertinent to state here that the order of
    the Supreme Court was passed on 13.5.2025 and 2
    months’ time had been granted to the NIA to complete
    the examination of the remaining of the 23 witnesses
    cited by them. In effect, the NIA has had the benefit of
    nearly one year to complete the examination of all the
    witnesses who were relevant in so far as the appellant
    was concreted as against the 6 months that was
    envisaged by the Supreme Court.

    96. In the result, the appellant is ordered to be enlarged
    on bail on such conditions that the NIA Court deems fit

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    and also subject to the observations made above in para
    94.

    97. The appeal is accordingly, ALLOWED.

    Sd/-

    (N.S.SANJAY GOWDA,J)

    Sd/-

    (D. M. VYAS, J)
    OMKAR

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