"Strange": Supreme Court on implication of former NCB officer in UAPA case by photo identification

The Supreme Court recently granted bail to a former Border Security Force (BSF) officer, Romesh Kumar, who was arrested in March 2021 in the Handwara narco-terror case. The case involves allegations that Kumar received cash proceeds from illegal cross-border drug sales while he was on deputation with the Narcotics Control Bureau (NCB) [Romesh Kumar v. Union of India]..A Bench of Justices Abhay S Oka and Ujjal Bhuyan granted Kumar bail after noting that the trial against him was unlikely to conclude soon since only 6 of 361 prosecution witnesses have been examined by the trial court so far. Pertinently, the Court questioned the "strange manner" in which the accused was implicated, by having witnesses identify his photo instead of conducting a test identification parade.The Court also noted that Kumar did not have any criminal antecedents. It, therefore, granted him bail on strict conditions including the deposit of his passport, that he regularly attends trial court hearings and cooperates with the trial court for the prompt completion of trial."If the appellant (Kumar) delays the trial in any manner, it will be open for the respondent to apply for cancellation of bail granted to the appellant," the top court added..Prima facie, we find that this is a very strange and doubtful procedure adopted during the investigation.Supreme Court.In March 2021, Kumar was arrested by the National Investigation Agency (NIA) on allegations that he had links to terror outfits carrying out cross-border drug smuggling activities after ₹91 lakhs of cash was reportedly found buried in agricultural land belonging to him in Jammu and Kashmir.A chargesheet filed by the NIA in August 2021 named him as the fourth accused. Kumar and other co-accused presently face charges under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and the Unlawful Activities (Prevention) Act, 1967 (UAPA).The NIA has alleged that he was part of a deep-rooted conspiracy to procure and sell narcotics drugs, to generate funds for terror activities in association with operatives of banned terrorist outfits such as Lashkar-E-Taiba (LeT) and the Hizb-ulMujahideen (HM)..In May 2024, the Jammu and Kashmir High Court rejected his bail plea after noting that at the time, it was not possible for the Court to conclude that Kumar was not part of the alleged acts of narcotic terrorism only because there was no direct connection between him and LeT operatives in Pakistan. Kumar, therefore, filed an appeal before the Supreme Court The apex court granted him relief on February 7. Notably, the Supreme Court Bench also expressed doubts over the "strange" manner in which Kumar was implicated in the case, by having witnesses identify him through photographs instead of conducting a proper test identification parade (TIP). "Reliance is placed on photo identification memo which records that certain witnesses were shown photograph of the appellant and the witnesses identified the photograph. Prima facie, we find that this is a very strange and doubtful procedure adopted during the investigation. It is not the case of the respondent that Test Identification Parades (TIP) were conducted in which witnesses identified the appellant," the February 7 ruling said.The Court, however, clarified that its prima facie observation on this aspect should not influence the trial court's verdict in the matter..The top court also noted that there appeared to be no conclusive material to indicate that the ₹91 lakh allegedly recovered from Kumar's land was drug money. "There is alleged recovery of sum of ₹91,00,000 from the appellant. As of today, nothing is shown to us to link the said money with the offence," the Court said. The Bench added that even a witness/ approver has purportedly said that he was unaware of why Kumar was made an accused in this case. The Court proceeded to grant Kumar bail by relying on the legal principles laid down in the 2021 case of Union of India v. KA Najeeb, after emphasising that its prima facie observations regarding the probe against Kumar must not be viewed as any finding on the merits of the case..Kumar was represented by Senior Advocate Shadan Farasat and advocates Talha Abdul Rahman, Umair A Andrabi, Mreganka Kukreja, Tanisha, Abhishek Babbar, Naseer H Jafri, M Shaz Khan, Sudhanshu Tewari, Rafid Akhter, Faizan Ahmad, Miran Ahmed, Dilwar H Barlaskar, Deepesh Kasana and Mohd Mohsin..Additional Solicitor General Rajkumar Bhaskar Thakare and advocates Rajat Nair, Chitvan Singhal, Swati Ghildiyal, Kartikeya Asthana, Adarsh Kr. Pandey and Arvind Kumar Sharma (AOR) appeared for the Union of India (NIA). .[Read Order]