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
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HARPREET SINGH TALWAR @ KABIR TALWAR
Versus
THE STATE OF GUJARAT & ANR.
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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
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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 ofPage 4 of 34
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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 thePage 8 of 34
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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 personalPage 21 of 34
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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 prosecutionPage 27 of 34
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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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