Supreme Court Upholds NIA’s Power to Investigate Drug Cases: Ankush Vipan Kapoor vs. National Investigation Agency (2024) INSC 986

Introduction

Date of the Judgment: 16 December 2024
Citation: (2024) INSC 986
Judges: B.V. Nagarathna, J. and Nongmeikapam Kotiswar Singh, J. (authored by B.V. Nagarathna, J.)

Can a central agency like the National Investigation Agency (NIA), primarily tasked with investigating terror-related offenses, also investigate drug-related crimes? The Supreme Court of India recently addressed this crucial question, clarifying the extent of the NIA’s powers when drug offenses are connected to scheduled offenses under the Unlawful Activities (Prevention) Act, 1967 (UAPA). This judgment has significant implications for how drug trafficking cases are handled in India, especially those with potential links to national security concerns. The Court’s decision was delivered by a two-judge bench comprising Justice B.V. Nagarathna and Justice Nongmeikapam Kotiswar Singh, with Justice Nagarathna authoring the opinion.

Case Background

The case revolves around Ankush Vipan Kapoor, who was initially arrested in connection with drug-related offenses under the NDPS Act in Punjab. The investigation was later transferred to the NIA due to its links with a larger case involving cross-border drug smuggling and suspected terror financing, which was being investigated by the NIA in Gujarat. The case began with the arrest of Sukhbir Singh alias Happy, who was found with heroin and illegal weapons. During interrogation, Happy implicated Kapoor, leading to Kapoor’s arrest and the recovery of more drugs from his residence and a secret storage. Subsequently, the Ministry of Home Affairs, Government of India, transferred the investigation of these cases to the NIA, citing connections to a larger case involving smuggling of 500 kgs of heroin from Pakistan to Gujarat, which was already being investigated by the NIA.

Timeline

Course of Proceedings

Initially, the Punjab Police registered FIR No. 20/2020 and FIR No. 23/2020 against the petitioner under the NDPS Act and Arms Act. The High Court of Punjab and Haryana granted bail to the petitioner in both cases on 05.07.2021 and 21.09.2021 respectively. However, the Central Government, using its powers under the NIA Act, transferred the investigation of these cases to the NIA, linking them to a larger case (FIR No. 01/2018) already being investigated by the NIA in Gujarat, which involved cross-border drug smuggling and had attracted provisions of the UAPA. Subsequently, the NIA filed an application before the High Court of Punjab and Haryana seeking cancellation of the bail granted to the petitioner. The High Court, considering the gravity of the offenses, the involvement of cross-border narco-terrorism, and the need for custodial interrogation, cancelled the petitioner’s bail on 29.01.2024.

Legal Framework

The Supreme Court examined the following key legal provisions:

• ✓ Section 3 of the National Investigation Agency Act, 2008: This section establishes the NIA as a special agency for investigating and prosecuting offenses listed in the Schedule of the Act. It grants NIA officers the same powers as police officers in relation to scheduled offenses.
• ✓ Section 6 of the National Investigation Agency Act, 2008: This section outlines the procedure for initiating investigations by the NIA. Sub-section (5) allows the Central Government to suo motu direct the NIA to investigate a scheduled offense.
• ✓ Section 8 of the National Investigation Agency Act, 2008: This section empowers the NIA to investigate any other offense connected to a scheduled offense it is already investigating.
• ✓ Section 14 of the National Investigation Agency Act, 2008: This section empowers the Special Court to try any other offense with which the accused may be charged, if it is connected with the scheduled offense.
• ✓ Sections 15, 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 1967: These sections define and prescribe punishments for terrorist acts, raising funds for terrorist acts, and conspiracy related to terrorist acts. These offenses are listed as scheduled offenses under the NIA Act.

The Court noted that while offenses under the NDPS Act are not directly listed as scheduled offenses under the NIA Act, the UAPA is. Therefore, if an NDPS offense is connected to a UAPA offense, the NIA can investigate it.

Arguments

Petitioner’s Arguments:

• ✓ The petitioner argued that the orders transferring the investigation to the NIA were illegal and violated Articles 14 and 21 of the Constitution of India.
• ✓ The petitioner contended that the NIA Act only allows investigation of scheduled offenses and offenses directly connected to them, and since the petitioner’s offenses under the NDPS Act were not scheduled offenses, the NIA could not investigate them.
• ✓ The petitioner submitted that Section 8 of the NIA Act could only be invoked if the accused was being investigated for a Scheduled Offence. In this case, the petitioner was being investigated for non-scheduled offences under the NDPS Act, and there was no connection with the accused in the Gujarat case.
• ✓ The petitioner argued that the High Court could not have cancelled the bail granted earlier on the NIA’s application.

Respondent’s Arguments:

• ✓ The respondent (Union of India and NIA) argued that the transfer of investigation was valid under Section 6(5) of the NIA Act, as the offenses were connected to scheduled offenses under the UAPA.
• ✓ The respondent submitted that the petitioner was part of a narco-terror network involved in cross-border drug smuggling, and his activities were linked to the larger conspiracy being investigated by the NIA.
• ✓ The respondent contended that Section 8 of the NIA Act allows investigation of any offense connected to a scheduled offense, even if the accused was not initially charged with a scheduled offense.
• ✓ The respondent argued that the High Court rightly cancelled the bail due to the gravity of the offenses and the need for custodial interrogation.

The petitioner argued that the NIA was trying to investigate non-scheduled offences by linking them to scheduled offences under UAPA against some other accused who had nothing to do with the petitioner. The respondent argued that the petitioner was part of the narco-terror network and there was a clear link between the cases.

Innovativeness of the argument: The petitioner’s argument focused on a narrow interpretation of Section 8 of the NIA Act, contending that the NIA could only investigate an accused for a non-scheduled offense if that accused was already being investigated for a scheduled offense. This was a novel point of contention that challenged the NIA’s broad application of its powers.

Issues Framed by the Supreme Court

The Supreme Court framed the following issues:

1. Whether the Central Government’s orders directing the NIA to investigate offenses under the NDPS Act, linked to scheduled offenses under the UAPA, were legal and valid under the NIA Act.
2. Whether the NIA was justified in seeking cancellation of bail granted to the petitioner by the High Court.
3. Whether the expression “the accused” in Section 8 of the NIA Act has to refer to only the accused in respect of whom a Scheduled Offence is being investigated or it could include any other accused whose name would emerge during the course of investigation of a Scheduled Offence and who has committed an offence which has a connection with the Scheduled Offence.

Treatment of the Issue by the Court

Authorities

The Court primarily relied on the provisions of the NIA Act and UAPA, as detailed in the Legal Framework section. No specific case laws or books were cited in the judgment.

Judgment

How each authority was viewed by the Court?

The court interpreted Section 6(5)* of the NIA Act to mean that the Central Government has the power to suo motu direct the NIA to investigate a scheduled offense. The court interpreted Section 8* of the NIA Act to mean that the NIA can investigate any other offense which the accused is alleged to have committed if the offense is connected with the Scheduled Offence, and the expression “the accused” cannot be restricted to only the accused in respect of whom investigation is being carried out by the NIA for any Scheduled Offence. The court also noted that Section 14* of the NIA Act empowers the Special Court to try any other offense with which the accused may be charged, if it is connected with the scheduled offense. The court also noted that Sections 17 and 18 of the UAPA* are Scheduled Offences under the NIA Act.

What weighed in the mind of the Court?

The Supreme Court was primarily influenced by the need to uphold the legislative intent behind the NIA Act, which is to effectively investigate offenses that threaten national security. The Court emphasized the interconnectedness of drug trafficking and terrorism, noting that profits from drug trafficking are often used to fund terrorist activities. The court also considered the gravity of the offenses, the cross-border nature of the drug trade, and the need for a thorough investigation, which included custodial interrogation of the petitioner.

The court was also influenced by the fact that the NIA was already investigating a case involving cross-border drug smuggling and had found a link between the petitioner and that case. The court also took into consideration the fact that the petitioner was alleged to be part of a narco-terror network of smuggling drugs into India, transporting from Gujarat to Punjab, storing the same and purifying in Amritsar and Ludhiana for further distribution to various parts of Punjab and the National Capital, New Delhi and its surrounding areas.

The Court was also influenced by the fact that the Central Government had already formed an opinion that the offences under UAPA were attracted in the Gujarat case, and that the offences alleged against the petitioner were connected to the Scheduled Offences in the Gujarat case.

The Court was also influenced by the fact that the NIA had submitted a report to the Central Government stating that FIR No.23/2020 and FIR No.20/2020 were connected offenses with the case being investigated by the NIA.

The Court also noted that the NIA Act is offence-centric and not accused-centric, and that the central concern of Section 8 of the NIA Act is defining the scope of offenses that can be investigated by the NIA and on what basis and not who are the accused.

The court also noted that the NIA has not been given unbridled power to initiate investigation of a connected and non-scheduled offence in the absence of an investigation of any Scheduled Offence.

The Court also noted that the expression “the accused” in Section 8 of the NIA Act needs to be interpreted contextually.

The court also noted that the word “the” used before a noun “accused” in Section 8 of the NIA Act has a particularizing effect, as opposed to “a” or “an”. However, “a” and “the” sometimes have to be interchangeably interpreted having regard to the context in which it is found and in order to give it a contextual connotation so as to advance the object and purpose of the provision.

The court also noted that Section 8 of the NIA Act has to be given a purposive and meaningful interpretation and one which would advance the object of Section 6 and other provisions of the Act and cannot be read in a curtailed and narrow fashion.

Logical Reasoning:

The Court considered the alternative interpretation that “the accused” in Section 8 refers only to those already accused of a scheduled offense. However, it rejected this interpretation, stating that it would defeat the purpose of the NIA Act, which is to investigate offenses that threaten national security. The Court held that the NIA can investigate any offense connected to a scheduled offense, even if the accused was not initially charged with a scheduled offense.

The Court’s decision was based on a purposive interpretation of Section 8 of the NIA Act, emphasizing the need to read the provision in a way that advances the object of the Act. The Court stated that the expression “the accused” in Section 8 of the NIA Act cannot be restricted in its meaning and connotation to only the accused in respect of whom investigation is being carried out pursuant to sub-sections (4) and (5) of Section 6 of the NIA Act in respect of a Scheduled Offence. It could also include any other accused who has committed any other offence provided that other offence committed by any other accused has a connection or a nexus with the Scheduled Offence which is detected during the course of investigation of any Scheduled Offence.

The Court also noted that the NIA Act is offence-centric and not accused-centric, and that the central concern of Section 8 of the NIA Act is defining the scope of offenses that can be investigated by the NIA and on what basis and not who are the accused.

The Court also noted that the NIA has not been given unbridled power to initiate investigation of a connected and non-scheduled offence in the absence of an investigation of any Scheduled Offence.

The Court also noted that the expression “the accused” in Section 8 of the NIA Act needs to be interpreted contextually.

The Court also noted that the word “the” used before a noun “accused” in Section 8 of the NIA Act has a particularizing effect, as opposed to “a” or “an”. However, “a” and “the” sometimes have to be interchangeably interpreted having regard to the context in which it is found and in order to give it a contextual connotation so as to advance the object and purpose of the provision.

The court also noted that Section 8 of the NIA Act has to be given a purposive and meaningful interpretation and one which would advance the object of Section 6 and other provisions of the Act and cannot be read in a curtailed and narrow fashion.

The court held that the orders of the Central Government were valid and that the NIA was justified in seeking cancellation of bail.

The Supreme Court quoted the following from the judgment:

“While investigating any Scheduled Offence the Agency may also investigate any other offence which the accused is alleged to have committed if the offence is connected with the Scheduled Offence.”

“The expression “any other offence” is wide and expansive in nature. The connection with the Scheduled Offence could be by any other Scheduled Offence under the NIA Act or any other offence which may not be a Scheduled Offence under the provisions of NIA Act but nevertheless has a connection with the Scheduled Offence under the provisions of the NIA Act.”

“The reasons for holding so shall be discussed. One reason being that Section 8 of the NIA Act applies not only when it is acting under sub-section (5) of Section 6 of the NIA Act; it also applies to sub-section (4) of Section 6 of the NIA Act where the Central Government acts on the receipt of a report from the State Government when information received by the officer-in-charge of the Police Station relates to any Scheduled Offence and the State Government has forwarded the report to the Central Government.”

There were no dissenting opinions in this case.

Key Takeaways

• ✓ The NIA has broad powers to investigate offenses connected to scheduled offenses under the NIA Act, even if the accused was not initially charged with a scheduled offense.
• ✓ Drug trafficking cases with links to terrorism or other scheduled offenses can be investigated by the NIA, even if the primary offenses are under the NDPS Act.
• ✓ The Central Government has the power to transfer investigations to the NIA suo motu, if it believes a scheduled offense has been committed.
• ✓ The expression “the accused” in Section 8 of the NIA Act cannot be restricted in its meaning and connotation to only the accused in respect of whom investigation is being carried out pursuant to sub-sections (4) and (5) of Section 6 of the NIA Act in respect of a Scheduled Offence. It could also include any other accused who has committed any other offence provided that other offence committed by any other accused has a connection or a nexus with the Scheduled Offence which is detected during the course of investigation of any Scheduled Offence.
• ✓ The judgment emphasizes the need for a purposive and meaningful interpretation of Section 8 of the NIA Act, one that would advance the object of Section 6 and other provisions of the Act.

This judgment will likely lead to more drug trafficking cases being investigated by the NIA, especially those with potential links to terrorism or national security. It reinforces the NIA’s role as a central agency for investigating serious crimes affecting national security and clarifies the scope of its powers under the NIA Act.

Directions

The Supreme Court did not give any specific directions in this case. The Court dismissed the writ petition and the special leave petition and vacated the interim relief granted to the petitioner.

Development of Law

The ratio decidendi of this case is that the expression “the accused” in Section 8 of the NIA Act cannot be restricted in its meaning and connotation to only the accused in respect of whom investigation is being carried out pursuant to sub-sections (4) and (5) of Section 6 of the NIA Act in respect of a Scheduled Offence. It could also include any other accused who has committed any other offence provided that other offence committed by any other accused has a connection or a nexus with the Scheduled Offence which is detected during the course of investigation of any Scheduled Offence. This interpretation expands the scope of the NIA’s investigative powers and clarifies the connection between scheduled and non-scheduled offenses under the NIA Act.

This judgment clarifies the interpretation of Section 8 of the NIA Act and expands the scope of the NIA’s power to investigate connected offenses, even if those offenses are not scheduled offenses under the NIA Act. This is a significant development in the law as it allows the NIA to investigate a wider range of offenses that are connected to scheduled offenses, even if the accused was not initially charged with a scheduled offense.

Conclusion

In conclusion, the Supreme Court upheld the NIA’s power to investigate drug-related offenses connected to scheduled offenses under the UAPA. The Court interpreted Section 8 of the NIA Act broadly, allowing the NIA to investigate any offense connected to a scheduled offense, even if the accused was not initially charged with a scheduled offense. This judgment has significant implications for how drug trafficking cases are handled in India, especially those with potential links to national security concerns. The Court dismissed both the writ petition and the special leave petition, thereby upholding the High Court’s decision to cancel the petitioner’s bail.