Gujarat High Court
Govindaraju Durga Purna Vaisali W/O ... vs National Investigation Agency Thro ... on 9 June, 2023
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
R/CR.A/1586/2022 ORDER DATED: 09/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1586 of 2022
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GOVINDARAJU DURGA PURNA VAISALI W/O MACHAVARAM SUDHAKAR
Versus
NATIONAL INVESTIGATION AGENCY THRO SUPERINTENDENT OF
POLICE AND CHIEF INVESTIGATION OFFICER, MUMBAI
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Appearance:
AADITYA D BHATT(8580) for the Appellant(s) No. 1 CHANDNI S
JOSHI(9490) for the Appellant(s) No. 1
MR DEVANG VYAS, ASG, assisted by MR KSHITIJ M AMIN(7572) for the
Opponent(s)/Respondent(s) No. 1
MS KRINA CALLA, APP for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 09/06/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. In all, hearing of 6 applications is conducted where Advocates for each of the appellants have made elaborate and separate submissions and hence, separate orders are passed vide applications.
2. The present appeal is filed under Section 21 of the National Investigation Agency Act, 2008 and read with Section 439 of the Criminal Procedure Code for regular bail. The prayer made in the appeal is as under:-
"a) This Hon'ble Court may be pleased to enlarge the Page 1 of 10 Downloaded on : Sat Sep 16 20:04:30 IST 2023 NEUTRAL CITATION R/CR.A/1586/2022 ORDER DATED: 09/06/2023 undefined Appellant forthwith on bail with F.I.R.No.RC-
26/2021/NIA/DLI registered by Superintendent of Police National Investigation Agency for alleged offenses punishable u/s Section 8(c), 21(c), 29 and 23(c) of Narcotic Drugs and Psychotropic Substance Act, 1985, and Section 120B, 466, 471 of The Indian Penal Code, 1860 on 06.10.2021, Previously arrested through the office of Directorate of Revenue Intelligence (DRI), Gandhidham Regional Union who had registered a case No.DRI/AZU/GRU/NDPS-01/2021; in connection with the alleged offense punishable u/ s Section 8(c) and 23 of Narcotic Drugs and Psychotropic Substances Act, 1985. That the Appellant was firstly detained on 17-09-2021 by, DRI Chennai, by way of quashing and setting aside the order dated. 10/6/2022 passed by the Court of Ld. Special NIA Judge, Ahmedabad on such reasonable terms and conditions as this Hon'ble Court may deem fit to impose in the interest of justice and the circumstances of the case;"
3. Learned Advocate for the appellant submitted that from the entire case papers of the investigation, there is no direct involvement of the appellant. It is submitted that the appellant is only a housewife and her husband, who started business of import- export, had taken all formal documentation in the name of the appellant and therefore, whatever business transaction had taken place, the appellant had only signed on dotted line. Page 2 of 10 Downloaded on : Sat Sep 16 20:04:30 IST 2023
NEUTRAL CITATION R/CR.A/1586/2022 ORDER DATED: 09/06/2023 undefined 3.1 It is submitted that nowhere in the investigation case papers, it is coming out that the appellant was in direct contact with any other accused of this case except for her husband. It is submitted that during the course of investigation, elaborate evidences have been placed on record, which include electronic evidence to establish contacts inter-se accused, but there also, nothing is found insofar as present appellant is concerned. 3.2 It is submitted that presence of the appellant is neither found at the place of import, i.e. Mundar nor she has ever visited Delhi, where earlier consignment was offloaded and the present consignment is alleged to be destined.
3.3 It is submitted that the documentary evidence is in the form of transport documents which are formal documents and do not disclose any knowledge of the appellant about commission of offence of import of narcotics in huge quantity.
4. As against this, learned ASG appearing for NIA has opposed grant of regular bail looking to the nature and gravity of the offence. It is submitted that the appellant is attributed with the role that she was proprietor and active operator of the importer firm M/s.Aashi Trading Company and was the consignee of the freight (consignment) of 2988.21 kgs of narcotics substance (heroine) sent from Afghanistan to Mundra, Gujarat in the guise of Page 3 of 10 Downloaded on : Sat Sep 16 20:04:30 IST 2023 NEUTRAL CITATION R/CR.A/1586/2022 ORDER DATED: 09/06/2023 undefined semi-processed talc stones; that the appellant facilitated the Afghan national accused consignor by way of import export code, customer clearance and logistic support hired from Gandhidham, Gujarat for the safe landing and transportation of the consignment in the guise of talc powder at Mundra Port, Gujarat and also arranged custom clearance and logistic for further movement and delivery of drugs and that the appellant received drugs proceeds. 4.1 Learned ASG also tried to submit that the case of the appellant may not be considered in view of invocation of NDPS, UAPA and NIA Act and therefore, bar will apply under the respective provisions of the Acts.
5. Having considered the rival submissions of learned Advocates for the parties and having perused documents on record, it appears that this is a case of serious nature, which involves interception of surreptitious import of 1999.579 kgs of narcotic substance under the name of semi-processed talc stones. The consignment was apprehended on 17.09.2021 at Mundar Port of Gujarat and during the course of investigation, it was revealed that by similar method, earlier consignment of similar huge quantity was imported in the month of June 2021. From the investigation case papers, it is coming out on record that the firm which has imported this material, viz. M/s.Aashi Trading Company, Vijaywada, was proprietorship concern of the present appellant. It is also the Page 4 of 10 Downloaded on : Sat Sep 16 20:04:30 IST 2023 NEUTRAL CITATION R/CR.A/1586/2022 ORDER DATED: 09/06/2023 undefined case of investigation that the business activity in the said firm was managed by her husband, who is arraigned as accused No.1.
6. Though the investigation has found substantial evidence against husband of the present appellant, who was managing the firm and was also in contact with co-accused during the course of transaction, however, there is no evidence insofar as the appellant is concerned about the appellant being directly in contact with other co-accused persons including the Afghan nationals who are both arrested and wanted.
7. No doubt, the documents for importing talc powder stones were prepared in the name of M/s.Aashi Trading Company, proprietorship of the appellant, but is is the case of investigation itself that such import was through and through managed by the husband of the appellant and therefore, the Court has reasons to believe that the appellant being the housewife of a co-accused, had only passively participated and has merely signed on dotted line and ans when called for.
8. The co-accused-husband was also before this Court in a separate appeal, for which a detailed and separate order has already been passed rejecting his appeal for bail.
9. The Court has taken into consideration the fact that the appellant has two minor children, who are at the mercy of the Page 5 of 10 Downloaded on : Sat Sep 16 20:04:30 IST 2023 NEUTRAL CITATION R/CR.A/1586/2022 ORDER DATED: 09/06/2023 undefined relatives. The Court has also taken into consideration the objection raised by the Investigating Agency regarding invoking of Section 37 of the NDPS Act against the appellant and the provisions of the UAPA. The Court is of the considered view that when charge sheet initially came to be filed against the appellant, there was no invoking of UAPA. The Court has also found from the record that there is no evidence whatsoever to directly connect the appellant to such an act which would substantiated invoking of UAPA against the appellant.
10. It also appears that the present appellant has been charge sheeted for the offence under Sections 8(c), 21(c), 23(c) and 29 of the NDPS Act and Sections 466, 471 and 120B of IPC. The provisions of Unlawful Prevention Act are not invoked against the present appellant and therefore, the restrictions as regards grant of bail as provided in Section 43(D)(5) would not be applicable against the present appellant.
11. The present appellant has been arraigned in the present offence because the Firm namely M/s.Aashi Trading Company, a Proprietary concern was registered in the name of the present appellant and an import-export license was also in the name of the present appellant. The investigating agency has recorded the statement of one Machavaram Sudhakar who is the co-accused in the present case and also happens to be husband of Page 6 of 10 Downloaded on : Sat Sep 16 20:04:30 IST 2023 NEUTRAL CITATION R/CR.A/1586/2022 ORDER DATED: 09/06/2023 undefined the present appellant. During the course of investigation, he in his statement has stated that since his earlier business venture, which was established with his own credentials, was not successful, he started doing business in the name of his wife and with her credentials i.e. the present appellant. He further states that though the said firm is registered as a proprietary concern with his wife's credentials, he runs the firm and takes care of its day-to-day operations. His wife, i.e. the present appellant, is in no way involved in any of the Company's activities. Even the GST returns of M/s Aashi Trading Company are filed by the husband of the present appellant. This statement along with the other material collected by the Investigating Agency during the course of investigation indicates that the present appellant was never involved in the day-to-day operations of the firm in question. It was the husband of the present appellant namely Machavaram Sudhakar who was handling the affairs of said M/s Aashi Trading Company. The documents purportedly signed by the present appellant as regards the commission of the offence in question appears to have merely been signed by her upon instructions of her husband. There is nothing on record to indicate about any role whatsoever played by the present appellant in commission of the offence in question. On the contrary the material collected during the course of investigation clearly indicates that it was the husband of the present appellant who was handling the affairs of the firm Page 7 of 10 Downloaded on : Sat Sep 16 20:04:30 IST 2023 NEUTRAL CITATION R/CR.A/1586/2022 ORDER DATED: 09/06/2023 undefined and it was him who had played an active role as regards the commission of the offence in question.
12. At the cost of repetition, it is required to be noted that the present appellant has been implicated in the present offence simply because the firm was registered in her name and the import- export license was also in her name. There is nothing on record to indicate that the appellant had ever imported any drugs or psychotropic substance consciously. Therefore, there appears to be no prima facie case against the present appellant as regards the commission of the offence in question.
13. In view of the aforesaid discussion, the Court is of the considered view that there exists reasonable grounds to believe that the present appellant is not involved in commission of the offence and as there are no antecedents of any nature whatsoever and considering her social status, the Court is of the view that the appellant may not involve herself in any other offence including offence of similar nature.
14. Hence, the present appellant is allowed. The appellant is ordered to be released on regular bail in connection with F.I.R.No.RC-26/2021/NIA/DLI registered by Superintendent of Police National Investigation Agency, previously arrested through the office of Directorate of Revenue Intelligence (DRI), Page 8 of 10 Downloaded on : Sat Sep 16 20:04:30 IST 2023 NEUTRAL CITATION R/CR.A/1586/2022 ORDER DATED: 09/06/2023 undefined Gandhidham Regional Union who had registered a case No.DRI/AZU/GRU/NDPS-01/2021, on executing a personal bond of Rs.1,00,000/- (Rupees One Lakh only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that she shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution & shall not obstruct or hamper the police investigation and shall not to play mischief with the evidence collected or yet to be collected by the police;
(c) surrender passport, if any, to the Trial Court within a week;
(d) not leave India without prior permission of the Trial Court concerned;
(e) mark presence before the concerned Investigation Agency once in three months for a period of six months between 11.00 a.m. and 2.00 p.m.;
(f) furnish the present address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Trial Court;
15. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
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NEUTRAL CITATION R/CR.A/1586/2022 ORDER DATED: 09/06/2023 undefined
16. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
17. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail.
Direct service is permitted.
(A.Y. KOGJE, J) (M. R. MENGDEY,J) SHITOLE Page 10 of 10 Downloaded on : Sat Sep 16 20:04:30 IST 2023