Gurwinder Singh Alias Baba v. National Investigation Agency, Delhi

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH CRA-D-1084-2025 (O&M) Date of Decision: May 27, 2026 Gurwinder Singh @ Baba ...Appellant

Versus

National Investigating Agency, Delhi

...Respondent

CORAM:

HON'BLE MRS. JUSTICE ARCHANA PURI HON'BLE MRS. JUSTICE RAMESH KUMARI

Present:

Mr.S.K.Kanojia, Advocate and Mr.Gurmeet Singh, Advocate for Mr.Chinku Bawa, Advocate for the appellant.

Mr.Sukhdeep Singh Sandhu, Special Prosecutor for the respondent.

**** ARCHANA PURI, J.

The present appeal has been filed by appellant-Gurwinder Singh @ Baba to assail the order dated 02.06.2025, whereby, bail application filed by him to seek regular bail, was dismissed. In pursuance of the notice issued, National Investigating Agency made appearance through Special Prosecutor and filed reply. Counsel for the appellant as well as Special Prosecutor for respondent-NIA heard and record perused.

The essential facts, to be noticed, are as follows:- That, FIR No.714 dated 16.10.2020 was registered under Sections

-2302, 34 IPC and Section 25 & 27 Arms Act, by Police Station Bhikhiwind, District Tarn Taran, on the allegations that on 16.10.2020, two unidentified men, killed Shaurya Chakra Awardee Comrade Balwinder Singh Sandhu, at his residence-cum-school in Bhikhiwind, District Tarn Taran, Punjab. Subsequently, addition of Sections 16, 17, 18, 18-A, 18-B, 10, 20, 23, 38, 39 and 40 of Unlawful Activities (Prevention) Act, 1967, was made. The persons involved in the crime and conspiracy were later on arrested.

The arrested persons in this case revealed that they were asked for the commission of the crime by Sukhmeet Pal Singh @ Sukh Bhikariwal (operation of Khalistan Liberation Force), Sunny Toronto, a Canada based KLF operative and Lakhveer Singh Rode (self styled chief of Khalistan Liberation Force), a prescribed terrorist organization and had provided arms, ammunition and funds, for executing the instant crime. Considering the gravity of the offence, in pursuance of Order No.11011/08/2021 dated 25.01.2021, the National Investigating Agency (NIA) had taken over the investigation of the case and accordingly, it was re-registered as NIA case as RC-01/2021/NIA/DLI dated 26.01.2021.

In investigation, it emerged that Sukhmeet Pal Singh @ Sukh Bhikariwal (A-25), operation of Khalistan Liberation Force, Sunny Toronto, a KLF operative, based in Canada (A-31) and Lakhveer Singh Rode (A-26), who are associated with the banned terrorist outfit International Sikh Youth Federation, are the main conspirators of the murder of Comrade Balwinder Singh Sandhu. They provided logistics and financial support to the main shooters, in the instant case.

-3separate State in the name of Khalistan and he has been declared 'individual terrorist'. It also emerged in the investigation that Lakhveer Singh Rode and Sunny Toronto had contacted Sukhmeet Pal Singh @ Sukh Bhikariwal to execute the murder of Comrade Balwinder Singh Sandhu. Appellant-Gurwinder Singh @ Baba is a close associate of Sukhmeet Pal Singh @ Sukh Bhikariwal (A-25) and upon his direction, Gurwinder Singh @ Baba had collected and delivered, not only arms and ammunition, at various locations in Punjab, but also indulged in smuggling narcotic substances, besides the collection of cash. It further emerged that the weapons used for killing Comrade Balwinder Singh Sandhu were made available by appellant-Gurwinder Singh @ Baba to the main assailants.

On the basis of the material collected during investigation, the chargesheet, at first instance, was presented on 27.04.2021 against eight arrested accused persons and subsequent chargesheet was also filed. The third supplementary chargesheet was filed on 16.12.2021 against three accused persons (two arrested and one absconder). Appellant-Gurwinder Singh @ Baba (A-30) was alleged to be absconding. However, in pursuance of the arrest of Gurwinder Singh @ Baba, fourth supplementary chargesheet was filed on 02.01.2023. It is also the version of the respondent-NIA, coming forth, about Gurwinder Singh @ Baba to have evaded the process of law and not made himself available with the investigating agency. Look out circular was also issued and he remained on run for little less than two years. He was formally arrested on 25.08.2022.

In pursuance of his arrest, fourth supplementary chargesheet was then filed.

-4So far as, appellant-Gurwinder Singh @ Baba is concerned, the role assigned is that he had shared many images of arms and ammunition to Sukhmeet Pal Singh @ Sukh Bhikariwal, either after picking up the weapons or at the time of placing for someone, as per the instructions of his handler. It was so spelt out in the chargesheet. Sukhmeet Pal Singh @ Sukh Bhikariwal (A-25) and appellant-Gurwinder Singh @ Baba (A-30) were in connivance with each other for committing of the instant crime. There was retrieval of the digital data from the mobile phone of Sukhmeet Pal Singh @ Sukh Bhikariwal, which evidently had shown about the role and involvement of appellant-Gurwinder Singh @ Baba, in the instant crime, being part of conspiracy.

Further, it emerged in the investigation that Sunny Toronto, through his India-based KLF member, delivered a .30 bore pistol to Sukhdeep Singh @ Bura (A-18) and Gurjit Singh @ Bhaa (A-19). After few days, Sukhmeet Pal Singh @ Sukh Bhikariwal was apprised by Sukhdeep Singh @ Bura, about .30 bore weapon to be not working properly and the same required repair. Upon this, direction was given by Sukhmeet Pal Singh @ Sukh Bhikariwal to appellant-Gurwinder Singh @ Baba to pick up the weapon from Sukhdeep Singh @ Bura, thereby, asking him to repair the same. Needful was done by Gurwinder Singh @ Baba and after repair, he delivered back the same to Sukhdeep Singh @ Bura. Gurjit Singh @ Bhaa, had further asked Sukhmeet Pal Singh @ Sukh Bhikariwal about .30 bore weapon, used to stuck up, at the time of firing, upon which, Sukhmeet Pal Singh @ Sukh Bhikariwal told them that they will get the weapon on the way to Bhikhiwind, Tarn Taran.

-5On directions of Sukhmeet Pal Singh @ Sukh Bhikariwal, appellantGurwinder Singh @ Baba had delivered the weapon i.e. 9mm pistol to both A-18 and A-19, near Kathunangal Toll Plaza, Amritsar, wherefrom, it was picked up. These .30 bore and 9mm pistol were used in executing the murder of Comrade Balwinder Singh Sandhu. Both the weapons were seized from the possession of A-18 and A-19 by Special Cell Delhi Police in FIR No.295 dated 07.12.2020. After making comparison of the said weapons and the bullets recovered from the scene of crime and body of the deceased, it was evident that above pistols were used in killing of Comrade Balwinder Singh Sandhu.

Considering the links evidently coming forth in the investigation, it is the version of NIA that role and involvement of Gurwinder Singh @ Baba, in the instant crime and conspiracy with the close associate of Sukhmeet Pal Singh @ Sukh Bhikariwal (A-25) is there. Appellant-Gurwinder Singh @ Baba was in contact with Sunny Toronto, Lakhveer Singh Rode, as per the directions of Sukhmeet Pal Singh @ Sukh Bhikariwal and they had conspired to commit the instant crime. Even, the voice sample of appellant-Gurwinder Singh @ Baba was compared with the retrieved data of the device seized from Sukhmeet Pal Singh @ Sukh Bhikariwal and the voice matched.

In the light of the aforesaid, at the very outset, learned counsel for the appellant submitted that the appellant has been falsely implicated. He is not named in the FIR. There in no incriminating evidence against him, to so substantiate the version, now put forth by the investigating agency. Also, counsel submits that appellant is in custody since 25.08.2022. The

-6trial is going on at snail's pace. The long custody, in such circumstances, is a good ground for grant of bail, while invoking Article 21 of the Constitution of India. In fact, counsel submits that the factum of long undue delay in progress of trial and long incarceration of the appellant, have been ignored by the Special Judge, which renders the order impugned, unsustainable and deserves to be set aside.

On the other hand, Special Prosecutor for the respondent has resisted the claim for bail. He submits that there is sufficient evidence, collected in investigation to prove incriminating role of appellantGurwinder Singh @ Baba. In fact, he submits that provisions of Section 43-D of UAP Act, are completely applicable to this case and therefore, bail has very rightly been denied to the appellant. Further, the Special Prosecutor submits that till date, 56 witnesses, out of 245 witnesses have been examined. He also submits that now, exclusive Court for NIA, is to be made operational very soon and thus, the trial of the case, will be put on fast track and there will be expeditious culmination of the process of recording of the evidence of the prosecution.

Learned Special Prosecutor further submits that the role assigned and the active pre-act participation of the appellant, in the commission of the murder, is evident from the material coming forth in the investigation. If the appellant is released on bail, there is every likelihood that he will influence the key witnesses of the case, hampering the process of justice and looking at his conduct, of having earlier been on run for little less than two years, his chances of absconding again, are very much there. Hence, a prayer has been made for denial of the bail.

-7The present case involves the charges under UAP Act, along with other charges under IPC, Arms Act and therefore, it is apt to consider the bail provision, envisaged under Section 43-D(5) of the UAP Act, before coming to appraise the material, vis-a-vis, the role of appellant in the commission of offences in question.

To appraise the scope and limitation of bail under UAP Act, beneficial reference is made to Section 43-D(5), which reads, as herein given:- "Section 43D - Modified application of certain provisions of the Code (1)......

................

(5) Notwithstanding anything contained in the Code, no person accused of an offence punishable under Chapters IV and VI of this Act shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard on the application for such release: Provided that such accused person shall not be released on bail or on his own bond if the Court, on a perusal of the case diary or the report made under section 173 of the Code is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true.

(6) The restrictions on granting of bail specified in sub-section

(5) is in addition to the restrictions under the Code or any other law for the time being in force on granting of bail.

(7) Notwithstanding anything contained in Sub-sections (5) and (6), no bail shall be granted to a person accused of an offence punishable under this Act, if he is not an Indian citizen and has entered the country unauthorizedly or illegally except in very exceptional circumstances and for reasons to be

-8recorded in writing."

It be noticed that the aforesaid provision under UAP Act, modifies the application of general bail provisions, in respect of offence punishable under Chapter IV and Chapter VI of UAP Act. With regard to the interpretation of provisions of Section 43D(5) of UAP Act, it is apt to make beneficial reference to the observations made by the Hon'ble Supreme Court in case titled Gurwinder Singh vs. State of Punjab & another, 2024 (1) RCR (Criminal) 826, as herein given:- "17.

A bare reading of Sub-section (5) of Section 43D shows that apart from the fact that Sub-section (5) bars a Special Court from releasing an accused on bail without affording the Public Prosecutor an opportunity of being heard on the application seeking release of an accused on bail, the proviso to Sub-section (5) of Section 43D puts a complete embargo on the powers of the Special Court to release an accused on bail. It lays down that if the Court, 'on perusal of the case diary or the report made under Section 173 of the Code of Criminal Procedure', is of the opinion that there are reasonable grounds for believing that the accusation, against such person, as regards commission of offence or offences under Chapter IV and/or Chapter VI of the UAP Act is prima facie true, such accused person shall not be released on bail or on his own bond.

It is interesting to note that there is no analogous provision traceable in any other statute to the one found in Section 43D(5) of the UAP Act. In that sense, the language of bail limitation adopted therein remains unique to the UAP Act.

18. The conventional idea in bail jurisprudence vis-a-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not

-9find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)- 'shall not be released' in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released' - suggests the intention of the Legislature to make bail, the exception and jail, the rule.

19. The courts are, therefore, burdened with a sensitive task on hand. In dealing with bail applications under UAP Act, the courts are merely examining if there is justification to reject bail. The 'justifications' must be searched from the case diary and the final report submitted before the Special Court. The legislature has prescribed a low, 'prima facie' standard, as a measure of the degree of satisfaction, to be recorded by Court when scrutinising the justifications [materials on record]. This standard can be contrasted with the standard of 'strong suspicion', which is used by Courts while hearing applications for 'discharge'. In fact, the Supreme Court in NIA vs. Zahoor Ahmad Shah Watali, 2019 (5) SCC 1, has noticed this difference, where it said:

"In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act."

20. In this background, the test for rejection of bail is quite plain. Bail must be rejected as a 'rule', if after hearing the public prosecutor and after perusing the final report or Case Diary, the Court arrives at a conclusion that there are reasonable grounds for believing that the accusations are

-10prima facie true. It is only if the test for rejection of bail is not satisfied - that the Courts would proceed to decide the bail application in accordance with the 'tripod test' (flight risk, influencing witnesses, tampering with evidence). This position is made clear by Sub-section (6) of Section 43D, which lays down that the restrictions, on granting of bail specified in Subsection (5), are in addition to the restrictions under the Code of Criminal Procedure or any other law for the time being in force on grant of bail.

21. On a textual reading of Section 43 D(5) UAP Act, the inquiry that a bail court must undertake while deciding bail applications under the UAP Act can be summarised in the form of a twin-prong test :

1) Whether the test for rejection of the bail is satisfied? 1.1 Examine if, prima facie, the alleged 'accusations' make out an offence under Chapter IV or VI of the UAP Act 1.2 Such examination should be limited to case diary and final report submitted under Section 173 CrPC;

2) Whether the accused deserves to be enlarged on bail in light of the general principles relating to grant of bail under Section 439 CrPC ('tripod test')?

On a consideration of various factors such as nature of offence, length of punishment (if convicted), age, character, status of accused etc., the Courts must ask itself : 2.1 Whether the accused is a flight risk?

2.2. Whether there is apprehension of the accused tampering with the evidence?

2.3 Whether there is apprehension of accused influencing witnesses?

-1122. The question of entering the 'second test' of the inquiry will not arise if the 'first test' is satisfied. And merely because the first test is satisfied, that does not mean however that the accused is automatically entitled to bail. The accused will have to show that he successfully passes the 'tripod test'. Test for Rejection of Bail: Guidelines as laid down by Supreme Court in Watali's Case

23. In the previous section, based on a textual reading, we have discussed the broad inquiry which Courts seized of bail applications under Section 43D(5) UAP Act r/w Section 439 CrPC must indulge in. Setting out the framework of the law seems rather easy, yet the application of it, presents its own complexities. For greater clarity in the application of the test set out above, it would be helpful to seek guidance from binding precedents. In this regard, we need to look no further than Watali's case which has laid down elaborate guidelines on the approach that Courts must partake in, in their application of the bail limitations under the UAP Act. On a perusal of paragraphs 23 to 29 and 32, the following 8-point propositions emerge and they are summarised as follows:

• Meaning of 'Prima facie true' [para 23]: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence.

• Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and Post- Charges - Compared [para 23]: Once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive

-12opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the Court that despite the framing of charge, the materials presented along with the charge- sheet (report under Section 173 CrPC), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.

• Reasoning, necessary but no detailed evaluation of evidence [para 24]:

The exercise to be undertaken by the Court at this stage--of giving reasons for grant or non-grant of bail--is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage.

• Record a finding on broad probabilities, not based on proof beyond doubt [para 24]: "The Court is merely expected to record a finding on the basis of broad probabilities regarding the involvement of the accused in the commission of the stated offence or otherwise."

• Duration of the limitation under Section 43D(5) [para 26]: The special provision, Section 43-D of the 1967 Act, applies right from the stage of registration of FIR for the offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof.

• Material on record must be analysed as a 'whole'; no piecemeal analysis [para 27]: The totality of the material gathered by the investigating agency and presented along with

-13the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.

• Contents of documents to be presumed as true [para 27]: The Court must look at the contents of the document and take such document into account as it is.

• Admissibility of documents relied upon by Prosecution cannot be questioned [para 27]: The materials/evidence collected by the investigation agency in support of the accusation against the accused in the first information report must prevail until contradicted and overcome or disproved by other evidence.......In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible.

It is also apt to make reference to Kekhriesatuo Tep etc. v. National Investigation Agency, 2023(6) SCC 58, wherein, the Hon'ble Supreme Court has held as herein given:

"while dealing with the bail petition filed by the accused against whom offences under chapter IV and VI of UAPA have been made, the court has to consider as to whether there are reasonable grounds for believing that the accusation against the accused is prima facie true. The bench also observed that distinction between the words "not guilty" as used in TADA, MCOCA and NDPS Act as against the words "prima facie" in the UAPA as held in Watali's Case (supra) to state that a degree of satisfaction required in the case of "not guilty" is much stronger than the satisfaction required in a case where the words used are "prima facie"

-14In this backdrop, now adverting to the case in hand, we proceed further to decide, as to whether the additional limitations found under Section 43-D(5) of the UAP Act, are attracted to facts of the present case. As per the version put forth by the respondent-NIA, appellant-Gurwinder Singh @ Baba was in constant touch with Sukhmeet Pal Singh @ Sukh Bhikariwal (A-25), operative of Khalistan Liberation Force, Sunny Toronto, a KLF operative, based in Canada (A-31) and Lakhveer Singh Rode (A-26), who is a hardcore terrorist. They are having connection with terrorist outfit; International Sikh Youth Federation (ISYF), which is banned by the Government of India, United Kingdom, Japan and United States. They are the main conspirators for the murder of Comrade Balwinder Singh Sandhu, in the instant case.

They provided logistics and financial support. Through appellant-Gurwinder Singh @ Baba, Sukhmeet Pal Singh @ Sukh Bhikariwal had facilitated providing of arms and ammunition to Sukhdeep Singh @ Bura and Gurjit Singh @ Bhaa, for the commission of murder. On the basis of the evidence collected during investigation, chargesheet was earlier filed against few of the arrested persons. Third supplementary chargesheet was filed on 16.12.2021 against three persons i.e. two arrested and one absconder, who is appellant-Gurwinder Singh @ Baba. Efforts were made for his joining the investigation, but however, as evident, he had evaded the process of law, which constrained the investigating agency to issue look out circular.

In this manner, appellant-Gurwinder Singh @ Baba remained on run, for little less than two years and he was formally arrested on 25.08.2022. Thereafter, fourth supplementary chargesheet was filed.

-15retrieval of the digital date from the mobile phone of Sukhmeet Pal Singh @ Sukh Bhikariwal, which reflects about Gurwinder Singh @ Baba, to have remained constantly in touch with Sukhmeet Pal Singh @ Sukh Bhikariwal, which also spells his role and involvement in the instant crime and conspiracy. It spells out about the weapons having supplied to the Indiabased KLF member and further, on the directions of Sukhmeet Pal Singh @ Sukh Bhikariwal, appellant-Gurwinder Singh @ Baba had also picked up the weapon from Sukhdeep Singh @ Bura for the repair of the same and after doing the needful, he had delivered back the weapon to Sukhdeep Singh @ Bura.

Even, Gurjit Singh @ Bhas, had asked Sukhmeet Pal Singh @ Sukh Bhikariwal to provide new weapon, as their .30 bore weapon, used to get stuck up, at the time of firing. Thereupon, as per the directions of Sukhmeet Pal Singh @ Sukh Bhikariwal, appellant-Gurwinder Singh @ Baba, provided 9mm pistol to Gurjit Singh @ Bhaa and both the said weapons were used for the commission of murder of Comrade Balwinder Singh Sandhu and suffice to consider the comparison effected from the seizure made, from the scene of crime and the bullets recovered from the body of the deceased. Even, the comparison of questioned voice, shortlisted from retrieved data provided, from the seized device of Sukhmeet Pal Singh @ Sukh Bhikariwal, was made with the voice of appellant-Gurwinder Singh @ Baba, which matched.

Suffice to consider the material aforesaid, which points finger to the inclination of the appellant towards terrorism. Considering the same and keeping in view the strict provisions as contained under Section 43-

-16D(5) of UAP Act, there is reasonable ground for the Court, to believe and form an opinion that accusations against the appellant, are prima facie true. With regard to the alleged violation of Article 21 of the Constitution of India, on account of denial of speedy trial, when the appellant is in custody for a period of little less than four years, suffice to say, that merely because a person is in custody and that too for quite some time, would not be in itself a ground for coming to the conclusion that the trial has been delayed for a long period. The gravity of the offence, the role of the accused, the evidence collected and the severity of punishment, in case of conviction, need to be taken note of.

The reasonable apprehension of the appellant, tampering with the evidence, in the form of influencing, threatening or putting pressure on the witnesses in the given facts and circumstances, also has to be taken into consideration. The aspect with regard to seriousness of the offence, for which an appellant is charged and in case, is granted bail, his indulgence in various activities of similar nature, apprehension thereof, could be other factors, which may weigh in the mind of the Court. Obviously, some balancing of rights of the appellant, vis-a-vis, the prosecution case, has to be carried out.

As observed aforesaid, the material available on record, indicates the involvement of the appellant in furtherance of terrorist activities, backed up by banned terrorist organization and precisely, on this account, there are serious allegations, where the safety and security of the country, is being sought to be put on peril, with their being, prima facie, material indicating involvement of the appellant.

-17In such scenario, there is every likelihood that the appellant will influence the key witnesses of the case, which might hamper the process of justice. At this juncture, it is also necessary to make reference to the custody certificate produced by the respondent-NIA, which was taken on record. Perusal of the same also reveals that there are five other FIRs registered against the appellant. Suffice to consider about the same to have been registered under the various Sections of IPC, NDPS as well as explosives Act and also under UAP Act. Not only this, the custody certificate also reflects about the production warrants, relating to the appellant, having been sought in six other cases, the detail whereof is also given in the custody certificate.

Keeping in view the same, mere delay in the trial pertaining to grave offences, as one involved in the present case, cannot be used as a ground to grant bail, more particularly, when it is coming forth of the sanction of exclusive NIA Court, to be made operational soon, on which basis, the trial will be put on fast track. The ground of long detention, ipso facto, cannot be considered, to grant the bail. Taking into consideration, all the aforesaid circumstances, more particularly, when the material on record, prima facie, indicates the complexity of the appellant, as part of the conspiracy, since he was knowingly facilitating the commission of preparatory act, towards the commission of terrorist act under UAP Act, there arises no reason to grant bail to appellant-Gurwinder Singh @ Baba.

Hence, the appeal sans merit and the same is hereby dismissed. Anyhow, though exclusive NIA Court is expected to be operational

-18very soon, even then, learned trial Court, looking at the extent of custody of the appellant, shall make an endeavour for expeditious culmination of the proceedings.

However, the observations aforesaid, are circumscribed only for the purposes of the disposal of the present appeal and the same shall not be construed as an expression, on the merits of the case, pending before the trial Court.

(ARCHANA PURI) JUDGE May 27, 2026 (RAMESH KUMARI) Vgulati JUDGE Whether speaking/reasoned Yes Whether reportable Yes/No