R/CR.A/1862/2025 ORDER DATED: 04/09/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL (REGULAR BAIL) NO. 1862 of 2025 ========================================================== ISHWINDER SINGH @ SARDARAJI BABA S/O GURUDEV SINGH Versus NATIONAL INVESTIGATION AGENCY & ANR. ========================================================== Appearance: MR AFTABHUSEN ANSARI(5320) for the Appellant(s) No. 1 MR KSHITIJ AMIN WITH MR SANDEEP SADAVARTE Respondent No. 1 MR LB DABHI APP for the Respondent No. 2 ========================================================== CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA and HONOURABLE MR.JUSTICE P. M. RAVAL Date : 04/09/2025 ORAL ORDER (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1. By way of present appeal filed under Section 21 of the NIA Act, the appellant Ishwinder Singh @ Sardarji Baba s/o Gurudev Singh seeks regular bail in connection with the offence punishable under Section 120B of Indian Penal Code, Section 8(c), 23 of the NDPS Act and Section 17, 18 of Unlawful Activities Prevention Act, 1967 (‘UA(P)’ Act. 2. The appellant accused by preferring NIA Criminal Application No. 4 of 2025 sought regular bail on the grounds mentioned herein in the appeal memo. The Special Court, NIA vide order dated 11.04.2025, rejected the prayer and the said order is also subject matter of this appeal. Page 1 of 8 R/CR.A/1862/2025 ORDER DATED: 04/09/2025 3. The brief facts are that, the appellant accused was arrested on 14.09.2022 in connection with the seizure of contraband and was subsequently arrayed as accused no. 27 in supplementary chargesheet filed by Investigating Agency and same has been culminated into NIA Special Case No. 1 of 2023. As per the prosecution case between 17.09.2021 to 19.09.2021, a large scale seizure of narcotic substances came to be effected by DRI at the T.G. Terminal Private Limited, Container Freight Station, Mundra, Port- Gujarat. The said narcotic substances found concealed in an import consignment of ‘Semi Processed Talc Stones’, originating from Afghanistan, which has arrived in the name of M/s. Aashi Trading Company from Bandar Abbas Port, Iran. A total of 2988.21 Kg. Of heroin (1999.579 kgs and 988.631 kgs.) from the two containers respectively seized by the DRI and case registered No. DRI/AZU/GRU/NDPS-1/2021 and thereafter, the FIR being RC-26/2021/NIA/DLI dated 06.10.2021 registered with NIA Police Station, New Delhi as the Government directed the NIA to investigate the case. The NIA initially filed chargehsheet against 10 accused, then filed first supplementary chargesheet against 9 accused and by second supplementary chargesheet, arrayed 22 accused including 7 companies and thereafter, filed third supplementary chargesheet and fourth supplementary chargesheet. The appellant herein arraigned as accused no. 27. The Special Court NIA, Ahmedabad has framed charges against the arrested accused persons on 30.11.2024 and at present 30 prosecution witnesses R/CR.A/1862/2025 ORDER DATED: 04/09/2025 including the appellant have been examined. 4. So far as role attributable to present appellant is concerned, he was part of the alleged criminal conspiracy and had arraigned the godown to shift the narcotic substances for processing of heroin from the material seized and acted as per the directions issued by mastermind of the drug trafficking and played a pivotal role. 5. During the proceedings of the trial, the appellant moved an application under Section 306/307 of the Cr.P.C., praying grant of pardon and allowing him for approver. In view of the ‘no objection’ given by the agency to the said request, the application Exh. 214 came to be allowed vide order dated 30.11.2024 by the Special Court at Ahmedabad. The deposition as approver of the appellant was recorded and has fully supported the prosecution case and disclosed the entire facts and circumstances related to the offence and to every co-accused persons. 6. The appellant herein thereafter filed an application to release him on bail, before the Special Court, Ahmedabad. Vide order dated 11.04.2025, the trial Court did not exercise the discretion in favour of the appellant and the application came to be rejected. 7. Being aggrieved by the order impugned, the present appeal has been preferred, inter-alia, stating that, the trial is not expected to R/CR.A/1862/2025 ORDER DATED: 04/09/2025 complete in near future and continues incarceration of the appellant, who has already been examined and supported the case of the prosecution, would be a violation of his right under Article 21 of the Constitution of India and therefore, he may be released on bail. 8. The affidavit in reply for and on behalf of the NIA tendered by learned counsel Mr. Sandeep Sadavarte is taken on record. 9. We have heard learned counsel Mr. Aftabhhusen Ansari, Mr. Kshitij Amin, Mr. Sandeep K. Sadavarte Mr. Arjundev and Mr. L.B. Dabhi, appearing for and on behalf of respective parties. 10. Mr. Kshitij Amin and Mr. Sandeep Sadavarte, on instructions, have jointly submitted that the respondent NIA has no objection to the petitioner’s prayer for release, as he has revealed relevant facts and circumstances and disclosed the necessary facts, which is in his knowledge to the case and facts pertaining to the co- accused and that is why, the agency had given ‘no objection’ to the petitioner’s application for pardon. 11. We have heard learned counsels for the parties and gone to the records. 12. It is settled position of law that an approver can be released under court’s discretion, but normally remains in custody till R/CR.A/1862/2025 ORDER DATED: 04/09/2025 testimony is over. Once his evidence is recorded, and risk factors are low, the court may grant bail. The Full Bench of Delhi High Court in Premchand Vs. State, (1984) SCC on-line Del 311, has elaborately dealt with the issue on hand and its findings would be beneficial to the adjudication of this application and same are produced as under: “17. The power available under this provision is notwithstanding anything else contained in the Code. In case the High Court is satisfied that an order needs to be made to prevent abuse of the process of any court, or otherwise to secure the ends of justice, the inherent powers are available, and they are not limited or affected by anything else contained in the Code. We are not oblivious that these powers have not to be ordinarily invoked where specific provisions are contained in the Code or specific prohibitions enacted. However, in cases where the circumstances un-mitigating bring out that a grave injustice is being done, and an abuse of process of court is taking place either as. a result of the acts of the accused or the unavoidable procedural delays in the courts, we are of the firm opinion that the inherent powers should and need to be exercised. The approver's evidence in the present case has already been recorded, and no useful purpose is being served in his detention. The administration of justice is not in any manner likely to be affected by his release. There is no reason to suppose that the machinery of law would not be able to give protection to the petitioner in case any adventurism is sought to be displayed by his confederates, or their supporters. The conduct of the petitioner in seeking his release itself shows that the carries no apprehensions. It would not be, therefore, correct for the court to still create such fears and profess to provide him unsolicited protection by detaining him for indefinite period. Thus in the case of A.L. Mehra (supra) the Punjab High Court R/CR.A/1862/2025 ORDER DATED: 04/09/2025 released the approver from confinement in exercise of inherent powers to prevent the abuse of the process of court, finding that he had been in confinement for several months. Similarly the Madras High Court in the case Karuppa Servai (supra) laid emphasis on the detention of an approver till he has deposed at the trial in the Sessions court truly and fully to matters within his knowledge.” 13. In the present case, the learned trial Court while interpreting section 306(4)(b) of the Cr.P.C, held and observed that, for the protection of the accused appellant from the wrath of the co- accused, because he has chosen to expose their deeds and has thrown himself to an attack by the co-accused, thought it fit to reject the application. In our opinion, there is nothing on record any such kind of risk as expressed by the learned trial Court. In the identical matter, the Single Judge of the Delhi High Court, vide its order dated 20.12.2024 (Cri.M.C. 5213 of 2024) held and observed in para-9 as under: “9. …….Section 306(4)(b) Cr.P.C. provides that every person accepting a tender of pardon, shall, unless he is already on bail, be detained in custody until the termination of trial. The object of this sub-section is to shield the approver from both the susceptibilities and influences of his confederates, as well as from their wrath. Since the word used is 'shall', if the statute is read literally, it would mean that the approver, if not already released on bail would, in every case, continue to remain incarcerated until the termination of trial. Such a rigid interpretation would lead to situations where the approver would continue to remain incarcerated even when, considering the facts and circumstances of that R/CR.A/1862/2025 ORDER DATED: 04/09/2025 case, there would be no tangible risk in enlarging him before the termination of the trial. An inflexible interpretation would also lead to an anomaly in as much as if there are two similarly placed co-accused who apply for pardon, and one of them is already enlarged on bail, the one who is out would continue to be free but the one imprisoned would continue to be behind bars, despite both of them helping in the investigation. Determining the necessity of detention of the approver on basis of the facts and circumstances in each case would ensure that the objectives of the provision are met.” 14. The appellant has cooperated with the prosecution and in view of the statement made by the authority that they have ‘no objection’ and having regard to the number of witnesses, the trial is not expected to over in near future and in that view of the matter, the continued incarceration would serve no purpose. Thus, therefore, having regard to the peculiar facts and circumstances of the present case, we inclined to release the applicant on bail on furnishing personal bond of Rs.50,000/- with one surety of like amount subject to the satisfaction of the trial Court and subject to the following further conditions : (a) The appellant shall comply with the conditions on which the pardon was tendered to him; (b) Appellant shall appear before the concerned court, as and when directed; (c) The appellant shall not leave the country without the prior permission of the concerned court and provide his e-mail ID and R/CR.A/1862/2025 ORDER DATED: 04/09/2025 cell phone number to the trial Court as well as IO of the case. 15. With the above, present appeal stands allowed. The observations made hereinabove are prima-facie in nature and only for the purpose of disposal of this application. Registry is directed to communicate this order to the jail authority for information and necessary compliance. Direct service is permitted. (ILESH J. VORA,J) (P. M. RAVAL, J) P.S. JOSHI Original copy of this order has been signed by the Hon'ble Judges. Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 06/09/2025 13:18:04