Gujarat High Court
Harpreet Singh Talwar @ Kabir Talwar S/O ... vs The State Of Gujarat Thro National ... on 28 March, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL - AFTER CHARGESHEET) NO.
1980 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
HARPREET SINGH TALWAR @ KABIR TALWAR S/O HARMINDER SINGH
TALWAR
Versus
THE STATE OF GUJARAT THRO NATIONAL INVESTIGATION AGENCY,
NEW DELHI
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Appearance:
MR. VIKRAM CHAUDHARY, SENIOR ADVOCATE with MR. JAINISH P
SHAH(7033) for the Appellant(s) No. 1
MR. DEVANG VYAS, ADDITIONAL SOLICITOR GENERAL with KSHITIJ M
AMIN(7572), STANDING COUNSEL, MR. SUNDEEP SADAWARTE,
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NEUTRAL CITATION
R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024
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ADVOCATE and MR. SAGAR BHANDARE, ADVOCATE for the
Opponent(s)/Respondent(s) No. 1
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 28/03/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. Rule. Learned Mr. Kshitij M. Amin, Standing Counsel for the N.I.A. waives service of Rule for the respondent-NIA.
2. This appeal is filed under Section-21 of the National Investigation Agency (NIA) Act, 2008 and Section-439 of Code of Criminal Procedure, 1973 seeking regular bail in connection with NIA Case RC-26/2021/NIA/DLI. The FIR has been registered for offence under Section-8(c), 21(c), 23(c) and 29 of the NDPS Act and Section-17, 18, and 22C of the UAPA,1967 with Section-120(B) of IPC.
3. In connection with the aforesaid offence, the appellant was arrested on 25-08-2022 and he is presently lodged in the Sabarmati Central Jail, Ahmedabad. The appellant has preferred this Appeal for Bail.
4. Upon being arrested, transit remand was sought from Special Judge, NIA, Patiala House Court, New Delhi and thereafter, the remand was sought from the Ahmedabad Court, which was granted initially for Page 2 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined 10 days.
5. Thereafter, once again, the Police remand was sought from the Ahmedabad Court, which was also granted between 17-01-2023 to 20-01- 2023. From the pleadings, it appears that various other applications regarding Bank Account, inquiry into physical torture, while under remand etc. were made and were ordered by the Court of appropriate jurisdiction, but the same may not be required to be referred to in view of the subject matter of the present Appeal.
6. The appellant thereafter, filed NIA-Criminal Misc. Application No.23 of 2023 under Section-439 of Cr.P.C. before the Sessions Court at Ahmedabad and vide order dated 13-07-2023, application for Bail came to be rejected (Annexure-H).
7. Present Appeal is preferred against the aforesaid order (Annexure- H). The Court may observe that from time to time elaborate submissions have been advanced on behalf of the appellant and on account to accommodate the availability of the Counsels representing both the sides, the matter was heard over several adjournments to facilitate convenience of Counsels representing both the sides. Elaborate arguments have been advanced. Over and above the pleadings, which runs into two volumes approximately 1178 pages. The Counsels have submitted their separate compilations of documents including Written submissions and Synoptic Page 3 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined Note by the appellant.
8. The Convenience compilation has also been provided to which both the sides have confirmed, are only out of record of the case papers. Therefore, in so far as the pleadings and documents are concerned, both the sides have no objection regarding the same.
9. It appears that entire offence surfaced with the Directorate of Revenue Intelligence (DRI), Gandhidham Unit filed Case being No.DRI/AZU/GRU/NDPS-01/2021 under NDPS Act pertaining to seizure of 2988.21 kgs of Narcotic Drugs Heroin, which according to the Agency was consignment sent from Afghanistan via Bandar Abbas, Iran and which was imported in India concealed as Talc powder in the name of importing Company namely M/s. Aashi Trading Company.
10. Investigation initially by the DRI also revealed that previous to smuggling into India, huge quantity of Heroin, which was intercepted on the intelligence input of DRI in September, 2021. Prior thereto also in June, 2021 adopting the similar modus operandy, previous consignment of huge quantity of Narcotic drugs Heroin was also smuggled in.
11. When the DRI undertook the investigation, seizure of another 16.105 kg of Heroin was made from Alipur in New Delhi, which lead to arrest of several accused persons.
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12. Considering spread and magnitude of the offence, the Ministry of Home Affairs in exercise of its powers under Section-6(5) read with Section-8 of NIA Act, 2008 transferred the case to NIA, Mumbai on 06- 10-2021. In the result, present offences came to be registered on 06-10- 2021. The chronology of events followed regarding formal taking over of the investigation, which may not require detail Reference.
13. Ultimately, the NIA also effected the investigation and arrest of the accused persons and ultimately, on 14-03-2022, the charge-sheet came to be filed by the NIA before Special Judge, NIA, Ahmedabad against 10 accused persons, who were arrested and six accused persons, who were declared as 'wanted'.
14. Along with the charge-sheet filed, further investigation under Section-173(8) also continued and during this investigation, 9 other accused persons came to be arrested and in connection with which Supplementary charge-sheet came to be filed on 29-08-2022.
15. The investigation continued and second Supplementary charge-sheet was filed on 20-02-2023 against 7 arrested accused persons, Six Companies both the Indian and abroad and 4 wanted accused persons came to be filed in the second Supplementary charge-sheet. The appellant was shown as an accused No.24 in the offence. The investigation has further taken place and thereafter, third Supplementary charge-sheet was Page 5 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined also filed against one accused. Reportedly, the investigation is still going on, as several accused persons are yet to be apprehended.
16. Learned Senior Advocate for the appellant has argued that the case of the prosecution against the appellant is only on the presumption that import undertaken by Magent India in December, 2020, which was under
the product name of 'Semi Processed Talc Stones' from Afghanistan actually contained Heroin, for which there is no evidence to establish.
16.1 Learned Senior Advocate for the appellant has submitted that even if the role of the Magent India is considered, then also it is proprietorship concern of another accused; Prince Sharma, whereas the appellant is not having any relationship with Magent India.
16.2 Learned Senior Advocate for the appellant has argued that the presumption of the Agency that previous consignment imported in the month of December, 2020 contained Heroin cannot be accepted on the ground that the said consignment was marked for 100% inspection / examination under which the Customs Authority had undertaken examination of the said Cargo, when it arrived at Indian shores and thereafter, declared out of charge by the Customs Authority. In the entire process, nothing incriminating was found at the relevant time and hence, the investigation has proceeded only on presumption.
16.3 Learned Senior Advocate for the appellant has also tried to point Page 6 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined
out certain discrepancies by referring to the statement of the then Custom Officers with regard to the number of bags, which form the part of consignment and which were examined. Referring to Section-114 of the Evidence Act, it is submitted that when the Custom Officers have performed their duty, then there is presumption that there having not found any discrepancies or irregularity in the process of import of consignment in December, 2020 and therefore, the appellant cannot be treated as an accused.
16.4 It is submitted that the entire investigation has proceeded on wrong path in as much as one Amitkumar Sharma was authorized by the Magent India to import 'Semi Processed Talc Stones' and to sale the same. In this connection, documentations were undertaken by said Amitkumar Sharma. Still, the Agency has not proceeded against said Amitkumar Sharma.
16.5 It is also submitted that with regard to the consignment of March, 2021 in the name of Vyom Fashion, it was one Rajatkumar Gangavani, who had provided for imported export code and import of consignment was carried out by co-accused; Vityash Koser @ Raju Dubai through his employee Rajesh Gauba. Still, the proprietor of Vyom Fashion or said Rajesh Gauba have not been arrested and only proprietary concerned namely Vyom Fashion has been made as an accused by invoking Section-
120(B) of IPC.
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16.6 Learned Senior Advocate for the appellant has thereafter argued that the Agency has failed to even establish primarily that any traces were found out of import, which was made on December, 2020 and March, 2021, with which though not admitted, the appellant could be linked and in a most casual manner, the Agency arrived at conclusion that consignment imported in the month of December, 2020 and March, 2021 consisted of Heroin on the basis of panchnama executed at warehouse, where 'Semi Processed Talc Stones' was stored at Neb Sarai in New Delhi and basis for this is sweeping of floor and collecting the waste line on the floor, sending it to FSL and finding traces of heroin. When, even as per the case of the prosecution, the accused persons had stored in the very godown, consignment imported in the month of June, 2021 and that consignment did contain heroin, then samples collected by sweeping of floor can never be connected to the previous consignments of December, 2020 and March, 2021.
16.7 Learned Senior Advocate for the appellant has submitted that as per the case of the prosecution, it is other co-accused, who have played role in transporting the consignment, hiring warehouse for storage in New Delhi, but there is no role in this regard of the appellant. It is submitted that the prosecution has also failed to establish any monitory benefit derived by the appellant out of this entire transaction. In absence of any monitory consideration, the appellant cannot be on the basis of Page 8 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined presumption, treated as a conspirator for terror funding. 16.8 Learned Senior Advocate for the appellant has submitted that only cause for arraigning the appellant as an accused is the previous import of consignment containing of prohibited products like cigarette, which was the subject matter of departmental proceedings by the Customs Department, which it is argued, cannot be any way linked to the present import/smuggling of Narcotic substance. The prosecution has projected this previous instance and treated the appellant as habitual person in indulging in smuggling activities. It is submitted that during the course of investigation, though exhaustive search was carried out at Business premises and residence of the appellant at various locations, only things which the Agency could seize, were documents of business owned by the appellant and his family members, but were completely unconnected with any of the import of consignment.
16.9 Learned Senior Advocate for the appellant has argued that there is no direct evidence to connect the appellant with smuggling of Narcotic substance and therefore, cannot be arraigned as an accused in the serious offence under NDPS Act.
16.10 Learned Senior Advocate for the appellant has lastly submitted that in so far as the appellant is concerned, even from the charge-sheet papers, there is no evidence to justify invoking of UAPA, 1967 against Page 9 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined the appellant. There is no evidence that the appellant has received any monitory benefit and this monitory benefit was converted into terror funding. To invoke Section-17 of UAPA, 1967 it is necessary for the Agency to place on record the evidence connecting firstly the appellant to the import of consignment of the Narcotic substance, then the appellant receiving the monitory benefit out of it and lastly, using money for terror funding or any terrorist activities. Based on some fringe evidence, the appellant cannot be arraigned as an accused in such serious offences.
17. Learned ASG has at the outset submitted that this Court had an occasion to deal with the Appeal for bail of certain co-accused persons, who also had very much similar role and such Appeals were not entertained by this Court. Against which, the concerned co-accused had approached the Apex Court and the Apex Court has declined to interfere with such orders passed by this Court.
17.1 Learned ASG has submitted that magnitude of offence has been made out and there is tangible evidence with regard to import of heroin in massive quantity, Country of Origin, route of import and the modus of bringing it into Indian territory, which is established when huge consignment was intercepted, leading the Agency to probe, back in time to find out the similar type of Country of Origin, route of import and the modus of documentation, which lead to Agency coming across the previous two import of consignment.
Page 10 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined 17.2 It is submitted that investigation has evidence in the form of statements of witnesses, statement of protected witnesses, trade
documents and technical evidence, which go on to establish the role of the appellant. It is submitted that investigation is still in progress, as the offence was cross border operation involving many Foreign Nationals of Afghanistan, Iran, etc., who are yet to be arrested. 17.3 Learned ASG has referred extensively to the charge-sheet papers to point out the specific evidence against the appellant, reference of which are made herein below. It is submitted that the role, which has come on record prima facie establishes against the appellant and therefore, it is for the appellant to come out of Section-37 of the NDPS Act. 17.4 Learned ASG has referred to and relied upon the decision of the Apex Court in case of Gurwinder Singh v/s. State of Punjab passed in Criminal Appeal No.704 of 2024 dated 07-02-2024.
18. Having heard learned advocates for the parties and having perused documents on record, it appears that on 13/09/2021, a specific intelligence input was received by DRI, Gandhidham, Dist. Kutch, Gujarat, that a consignment imported by M/s Aashi Trading Company, Vijayvada declared as semi-processed Talc stones originating from Afghanistan and shipped from Bandar Abbas Port, Iran to Mundra Port, Gujarat is suspected to contain Narcotic drugs was to arrive at Mundra Port, Kutch, Gujarat.
Page 11 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined 18.1 It appears that acting upon the intelligence, the DRI, Gandhidham
on 13-09-2021, constituted various teams at TG Terminals Pvt Ltd. Container Freight Station Mundra Port, Gujarat to verify the fact and two containers being Nos.GVCU5288290 & TTNU9289839, covered under Bill of Lading No.FFS-MUN-211168 dated 06.09.2021 and Bill of Entry No.5408652 dated 11-09-2021 were put on hold at M/s. TG Terminals, CFS, Pvt. Ltd., Mundra Port, for detailed examination. 18.2 It appears that DRI, examined the goods under Panchnama dated 14-17-09-2021 and 18-19-09-2021 and necessary preliminary testing of the goods were conducted by the experts from Forensics Science Laboratory(FSL), Gandhinagar during examination of goods. The test reports on the suspected material confirmed the presence of Heroin (opium derivative) in 03 out of total 38 Jumbo bags covered under Bill of Lading No.FFS-MUN-211168 dated 06-09-2021 and Bill of Entry No.5408652 dated 11-09-2021 declared as 'Semi Processed Talc Stones'. 18.3 The DRI recovered 1999.579 Kgs narcotics substance from the container No.GVCU5288290 and 988.64 Kgs from the containers No. TTNU9289839. Thus, a total quantity of 2988.21 kg of narcotics drugs substance having international value worth Rs.21,000 crore, was seized from the above said import consignment in two containers under the provisions of the NDPS Act, 1985.
18.4 It appears that the DRI, Gandhidham in this connection registered a case No.DRI/AZU/GRU/NDPS Case No.01/2021 under NDPS Act on 14/09/2021 and seized both the containers along with 2988.21 kg of Page 12 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined narcotics drug heroin.
18.5 Subsequently the case No. DRI/AZU/GRU/NDPS Case No. 01/2021, was transferred to NIA, by Ministry of Home Affairs, Government of India, CTCR Division, North Block, New Delhi vide its order No. 11011/64/2021/NIA dated 06/10/2021, issued as per provisions of sub- section (5) of section 6 read with section 8 of the National Investigation Agency Act, 2008, re-registered the case vide RC-26/2021/NIA/DLI and took over the investigation of the case pertaining to seizure of 2988.21 of narcotics drugs heroin.
18.6 After completion of the investigation, on 14-03-2022, a charge sheet was filed before the NIA Special Court, Ahmedabad against 10 arrested and 06 wanted accused persons and continued further investigation of the case as per the provision of Section 173(8) of Cr.P.C. 18.7 During the course of investigation of Mundra Drug seizure case, it is revealed that another consignment of Aashi Trading Co. which was sent by Hasan Hussain Ltd., also received at Mundra Port in the month of June, 2021 was further transported to Alipur, Delhi. Accordingly, on 18-09-2021, DRI Unit of Delhi Zone carried out investigation at Alipur, Delhi and conducted searches and seized Narcotics substance along with other incriminating material / objects / documents. Three accused persons were arrested on 19-09-2021 (One from Sahibabad, Ghaziabad and two from Lajpat Nagar, New Delhi). The Directorate of Revenue Intelligence, Delhi Zonal Unit registered a case vide No.DRI/DZU/34/ENQ-25/2021, dated 15-09-2021 under the provisions of the NDPS Act 1985. The consignment which was received at Mundra Port in the month of June Page 13 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined 2021 and was transported to Alipur, Delhi is part of the same larger conspiracy. The Importer, Supplier, Description of the goods and country of origin are same in both the consignments.
18.8 Considering the strong link between the two crimes, the MHA vide order dated 25-10-2021, transferred the case related to the seizure of 16.105 kgs of suspected Narcotic substance (Heroin) from a rental premises at Alipur Delhi by DRI Delhi Zonal Unit (DZU) on 17-09-2021, to NIA for investigation as a connected offence in NIA Case No.RC- 26/2021/NIA/DLI.
18.9 Further during the course of investigation, it is revealed that, case relating to seizure of 20.250 kgs of Heroin by Punjab Police from a Sainik Farm Hose in Saket, New Delhi also has linkages with the present case. Accused persons arrested in FIR No.90/2021, dated 01-07-2021 registered at Garshankar Police Station, Hoshiarpur, Punjab are linked to the present cirme. The Sainik Farm House located at Neb Sarai was taken on rent by Najibulla Khalid (WA-4) who is main conspirator of Mundra Drug seizure case, which was used for the purification purpose and further distribution of the drugs on the instructions of wanted accused Mohd. Hussain Dad.
18.10 It appears that the Punjab Police after completion of the investigation filed a charge-sheet on 22.12.2021 against 13 accused persons under Section 24(c) and 29 of the NDPS Act, in the Special NDPS Court, Hoshiarpur, Punjab.
18.11 Further, in pursuance to the further developments of the case, Page 14 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined Government of India, Ministry of Home Affairs, CTCR Division vide Order F. No.11011/64/2021/NIA issued further order dated 27.12.2021, wherein the NIA was directed to take up the investigation under Sub-Section 5 of Section 6 of the National Investigation Agency Act, 2008, NIA was also entrusted with the investigation of offense registered by Garhshankar Police Station, Punjab an FIR No.90/2021 under NDPS Act, as per the provision of Section 8 of the National Investigation Agency Act, 2008, being a connected offense. During the course of the investigation, the NIA arrested nine (09) accused persons on 22.03.2022. 18.12 It appears that the NIA investigation revealed that, Mohammad Hussain Dad @ Mohammad Hussain Shah, S/o. Dad Mohammad (WA-1) with Mohammad Hassan Shah (WA-2), Jawad Najafi (WA-3), Najibulla Khalid (WA-4), Honari Esmat Ullah (WA-5) and Abdul Hadi Alizada (WA-
6), alongwith arrested accused Sarabjit Singh S/o Manjit Singh (A-11), Jannat Gul Kaker s/o Abdul Haseeb (A-12), Mujahid Shinwari s/o Lazeer Khan (A-13), Shami Ullah s/o Thoor Khan (A-14), Mohammad Lal Kaker s/o Khudaheen (A-15), Imtiaz Ahmed s/o Mumtaz Ahmed (A-16), Imran Ahmed s/o Ali Ahmed (A-17), Balwinder Singh s/o Sajan Singh (A-18) and Jasvir Singh s/o Prakash Singh (A-19), have Conspired for the smuggling, storing, purifying, buying and selling, and for further distribution of narcotic drug heroin from Afghanistan to Iran to Gujarat then to Delhi and to Punjab and other States of India and to raise funds to commit terrorist/anti-national activities against India. The aforesaid Page 15 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined accused persons will be referred to as per the number in the charge-sheet for convenience.
18.13 The accused persons A-12, A-13, A-14 and A-15 were roped in by WA-1 with the help of WA-4 for further processing of smuggled heroin at House No.227, Sainik Farm, Delhi, which was facilitated by WA-4 by taking it on a rent.
18.14 The NIA investigation revealed that, earlier, in the month of June 2021, the Heroin consignment was also sent by WA-1 from Afghanistan to Mundra Port, Gujarat, by using the same modus-operandi, logistic support, which was further transported to Delhi and unloaded in Alipur Godown, Delhi. The same consignment was further transported at Bungalow No.227, Sainik Farm, Delhi, from the Alipur Godown by WA-1, WA-4 and present arrested accused A-12 to A15. The said bungalow / farm house was taken on rent by WA-4 for the accommodation of A-12 to A-15, where chemicals and incriminating material had been kept alongwith smuggled heron taken from Alipur Godown, wherein A-12 and A-15 were further processing the drugs on the direction of WA-1. The said farm house was raided by Punjab Police on 05/07/2021, and seized total 17 Kgs of heroin and other materials used for further processing from A-12 to A-15.
18.15 It appears that the investigation has further revealed that after the Page 16 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined further processing of smuggled drugs / heroin with the chemical and other objects at Sainik Farm in Delhi, the accused A-12 to A-15 used to supply the heroin to the accused A-16 to A-17 on the direction of WA-1 and WA-4, for further distribution among A-11, A-18, A-19 and in other states of India by A-16 and A-17.
18.16 NIA Investigation revealed that total 20.250 kgs of heroin which was seized by the Garshankar Police was the part of the first consignment sent in the month of June, 2021 by WA-1 from Afghanistan to Mundra Port, Gujarat, which is connected to the NIA case number RC-26/2021/NIA/DLI.
18.17 As is referred in Para-15, a second supplementary charge-sheet was filed and during this charge-sheet, the role of the appellant has surfaced. From the investigation case papers, the role of the appellant, who is identified as A-24 is as under:
i. A-24 is associated with various businesses like import-export trade, retail trade of footware, hotel industry amongst others.
ii. A-24 has also been involved in gold smuggling from Dubai through one Indian national Sunny Kakkar.
iii. A-24 in the month of September 2020, was introduced to Vitaysh Koser @ Raju Dubai (hereinafter referred to as 'WA-07') by Sunny Kakkar. WA-07 was already roped in by the Afghan narcotics traders and the ISI of Pakistan for smuggling heroin into India. A-24 was just the person WA-07 was looking for.
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iv. A-24, too was ready to cooperate as the risk involved was minimal and profit margins were very high.
v. As a part preparation and in furtherance of conspiracy A-24 opened a dozen firms in the names of his friends, employees and other known persons for the smuggling of various goods into India. The list of firms is mentioned at Para-17.9 of the second supplementary charge-sheet.
vi. The documents and trade in the above mentioned firms were in control of A-24 and he was responsible for all the transactions in these firms through his accountant and close aides.
vii. After returning to India, A-24 directed his accountant Sunil Jain, to open the firm in the name of Prince Sharma (hereinafter referred to as 'A-25'). A-25 is an employee and a close associate of A-24.
viii. A-24 had registered M/s Magent India (hereinafter referred to as 'A- 34') a new firm in the name of A-25 to avoid any litigations in his pre- owned firms.
ix. A-25 in connivance with A-24 after creation of A-34 as agreed between them, received commission on regular basis on the goods imported.
x. As directed by WA-07, A-24 had provided the name and GSTN of A-34 to him for further sharing the same with co-accused Sushanta Sarkar (hereinafter referred to as 'A-30').
xi. In the month of November, 2020, A-30 sent the imported heroin laden consignment through his firm M/s Jesus Christ Impex (hereinafter referred to as 'A-33') to Delhi by using the e-way bill and invoice in the name of A-34 for further distribution in other parts of India.
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xii. Further in the month of December, 2020, A-24 had again visited Dubai and met WA-07 and Vicky Kataria (hereinafter referred to as 'WA- 10'). During the meeting, WA-07 directed A-24 to get ready for importing heroin laden consignment from Afghanistan. Thereafter, A-24 directed his accountant, to provide the complete details of A-34 including IEC etc to him and he shared the same with WA-07.
xiii. When consignment of heroin laden semi processed talc reached at Mundra Port, Gujarat, (X-1), employee of WA-07 visited A-24's office at Patel Nagar and (X-1) told him that for clearing of consignment, some original signed documents are required. A-24 directed his accountant to provide all the necessary documents to (X-1) and all signed documents by A-25 of A-34 were provided to (X-1). The heroin laden consignment at Mundra Port sent on directions of WA-07, was accordingly cleared by (X-
1).
xiv. In lieu of importing heroin laden consignment of semi-processed talc in the firm (A-34) owned by A-24's employee A-25, and other such firms owned by A-24, A-24 had received 15 consignments of dry dates and perfume from Dubai from WA-07. A-24 till date has not paid any remittance against any of these goods imported by firms controlled by him.
xv. Also, A-24 had received 01 consignment of perfume from Dubai without any remittance in the firm A-34 for importing heroin laden consignment of semi processed talc. The total value of the money earned from these consignments is approx. Rs. 1.65 crores. xvi. In order to evade the suspicion of authorities, in respect of few consignments, A-24 had made the payment to a notified party in China, and as per the routine modus-operandi, in lieu of these payments A-24 imported footwears from China and never made the actual payments for these footwears. This fact is corroborated and established by his accountant who had never settled the account ledger of these imports and Page 19 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined are still pending as liabilities in account books of these firms. 18.18 Though the detail discussion on the evidence against the appellant may not be required, still the Court may refer to cursorily the statement of witnesses recorded to indicate the connection of the appellant with the co-accused persons. Statement recorded under Section-164 of Cr.P.C. of witness; Rakesh Ramdas Jejurkar is witness to the trips of the appellant to Dubai and his meeting with co-accused; Raju Dubai and the discussion with regard to facilitating of imports into India. It also indicates manipulation of the importing Companies by opening fresh firms in the name of acquaintances of the appellant for providing such facility. Therefore the appellant who was already in the business of import export has camouflaged the smuggling of the Narcotic substance through the import route channel with the aid of other coaccused, using their credentials.
18.19 The Court may also refer to in this regard the statement recorded under Section-164 of Cr.P.C. of secret witness; X2. This statement was recorded after compliance with the procedure including giving time for reflection to such witness before recording statement. This witness has given detail of how the background was created for smuggling of Narcotic substance under the guise of importing other products like Talc Stones.
18.20 This witness has referred to Raju Dubai stating that entire import Page 20 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined of the goods with concealed Narcotic was backed by the present appellant, who is known Businessman and when import is under his control, there is everything will be taken care of. This statement also discloses that behind the product, which was shown on record to be imported, Narcotic substance is being pushed in. 18.21 Perusal of other secret witnesses namely X1, X3 as well as AX would support the case of the prosecution regarding terror funding and involvement of Foreign Nationals in the entire chain of events. 18.22 Over and above this evidence, there is list of Documentary evidence collected by the Agency, which are as under:
i. Explanation cum recovery memo u/s 27 of Indian Evidence Act of accused Harpreet Singh dated 19.01.2023.
ii. D-126, [M/s. Magent India, M/s V. K. Enterprises, M/s. Vyom Fashion
- (Prabhat Rameshwaram).
iii. Disclosure memo dated 06-09-2022 by accused Prince Sharma.
iv. Letter no. RC-26/2021/ NIA/DLI/1542 dated 11.08.2022 sent to the Branch Manager, HDFC Bank, Defence Colony Branch, New Delhi seeking bank account details of account no. 50200052764875 in the name of M/s. Magent India.
v. Letter No.RC-26/2021/ NIA/DLI/1540 dated 11.08.2022 sent to the Branch Manager, Axis Bank, Defence Colony Branch, New Delhi seeking bank account details of account no.91801000xxxxx in the name of (X-1).
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vi. Disclosure cum pointing out memorandum of accused Sushanta Sarkar dated 06-10-2022.
vii. Production cum seizure memo dated 04-10-2022 vide which documents related to the consignment imported by M/s. Jesus Christ Impex were produced by Rahul Chamaria.
viii. D-94 [(Page 01 to 43), Scrutiny Analysis Report on seized mobile handsets/CDRs/Social Media Accounts of Accused persons].
ix. One Red Colour Account Book Labelled "Saraswati Account Book"
containing 174 pages used for maintaining Account records of Hawala transaction. On page no. 171 Hawala Account of WA-09 is maintained.
x. One Blue Colour Account Book Labelled containing 338 pages used for maintaining Account records of Hawala transaction. On page no. 99, 101, 103, 113, 115, Hawala Account of Subhan is maintained and on page no. 135 Hawala Account of Pahalwan (Najibullah Khalid) is maintained.
xi. One Blue Colour Account Book Labelled "Saraswati Account Book"
containing 168 pages used for maintaining Account records of Hawala transaction of WA-09.
xii. It is submitted that the documentary evidences collected in respect of the hawala operators / suspects/ accused from Ballimaran, Chandni Chowk, Delhi will establish about the hawala transactions made by WA-4 with the help of one WA-09 which ranged from 10-60 lacs in USD and Indian Currency. In this regard, the entries corresponding at page no. 99, 101, 103, 113, 115 in respect of A-8 in a register and entry no.135 of an account book stated to be of WA-4 will establish the monitory trail of earlier or present consignment.
18.23 With regard to the money trail, the case of the Agency against the appellant is that the appellant opened firms in the name of his Page 22 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined employees, friends for purpose of smuggling. As per the verbal agreement, the appellant has to bear the tax duties of such opened companies. The appellant conspired with co-accused WA-07 for the import of Heroin laden consignment of semi processed talc from Afghanistan to India vide Bill of Entry No.2083348 dated 23.12.2020 in the name of M/s. Magent India. No foreign remittance was made by A-34 for the said consignment. Further, in return, the appellant was paid, not in cash, but in kind. The appellant received items from WA-07 without making remittance for them in the firms under his control. The Dry Dates imported from M/s. Right Choice foods, Dubai (supplied by WA-07) put payment was made to China based firm M/s Aibo International Co. Ltd. and in lieu of this payment, the appellant through the firms controlled by him imported footwears and never made any payment for these footwears. Dry dates of 2 containers were imported from Desire Overseas (Karan Babbar) on 12-02-2021 worth Rs.28.5 Lakh. Dry dates of 3 containers were imported from Desire Overseas (Karan Babbar) on 18-02- 2021 worth Rs.20.5 Lakh. Dry dates of 2 containers were imported from M/s. Oneup Products (Rahul Kumar) on 06-02-2021 worth Rs.14.5 Lakh. Dry dates of 2 containers were imported from M/s. Oneup Products (Rahul Kumar) on 19-03-2021 worth Rs.15.1 Lakh. The appellant had received Rs 28 Lakhs from co-accused WA-07 through hawala channels. From the above averments, it is crystal clear that the appellant had received Rs.1.65 Crores from co-accused WA-07 for importing the heroin laden consignment from Afghanistan to India.
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18.24 With regard to the monitory benefit, the prosecution has recorded the statements of the witnesses / protected witnesses to draw link of monitory benefit, where imports of articles like perfumes, dry dates, etc. was shown, but there was no remittance against such import indirectly leading money trail.
18.25 Argument that the traces of heroin found in the samples collected by the floor sweeping at warehouse in Neb Sarai, where the consignment of June, 2021 was stored, cannot be connected with the appellant on the ground that role of the appellant if at all is limited to the consignment, which were imported in the month of December, 2020 and March, 2021. In this regard, it may be noted that when the entire offence of smuggling of heroin concealed in some other products surfaced during the DRI investigation, the Agency had to trace out modus and in this exercise, when the data related to import of consignment resembling on various factors of import, the Agency was able to zero down upon previous imports which had similar modus operandi. This led the Investigating Agency to other evidences also to connect the appellant. 18.26 Learned Senior Advocate for the appellant has argued for Bail for appellant raising a Conflict between the Right to Bail under Section-439 of Cr.P.C. and the provision governing Bail in Special Acts. We are concerned with such provision under NDPS Act being Section-37 and Page 24 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined Section-43D(5) of the UAPA,1967.
18.27 Learned Senior Advocate for the appellant has relied upon the judgment in case of Ranjitsing Brahmajeetsing Sharma v/s. State of Maharashtra and another reported in (2005) 5 SCC 294 to argue that it is not necessary for the Court to arrive at a positive finding that appellant has not committed an offence under such Special Act. Hence, the requirement as per the NDPS or UAPA Acts may not be a strict requirement, while considering Bail Application. 18.28 The case before the Apex Court was concerning Section-21(4) of MCOCA, where the Apex Court has given the logic behind such observations that if the Court has to arrive at such a positive findings, then it will be impossible for the prosecution to obtain a conviction upon the appellant being released on Bail. Thereafter, the Apex Court has observed that the Court has to maintain delicate balance. 18.29 In the aforementioned case, the Apex Court was considering the case of the former Commissioner of Police, who was an accused in the infamous 'Telgi-Scam' and the Bombay High Court refused to grant bail. 18.30 Learned Senior Advocate for the appellant has relied upon the case of Union of India v/s. K. A. Najeeb reported in (2021) 3 SCC 713, to contend that the statutory restrictions like Section-43D(5) of the UAPA,1967 will not oust the ability of Constitutional Court to grant Bail.
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18.31 In this case, the Union of India was in Appeal against the judgment of the Kerala High Court granting Bail to an accused being trial under UAPA, 1967 for committing of murder on the communal line. It will be pertinent to refer to the observations of Apex Court in this case in Para-18.
"We are conscious of the fact that the charges levelled against the respondent are grave and serious threat to Societal Harmony. Had it been a case at the threshold, we could have out-rightly turned down the respondent prayers. However, keeping in mind the length of period spent by him in the custody and the unlikelihood of the trial being completed any time soon, the High Court appear to have been left with no option except to grant Bail."
18.32 For the same contentions of maintaining delicate balance, learned Advocate for the appellant has also relied on the decision of the Apex Court in case of Vijay Agrawal v/s. Directorate of Enforcement reported in 2023 SCC Online Del 3176 and for long incarceration, reliance is placed on Rabi Prakash v/s. State of Odisha reported in 2023 SCC Online SC 1109, Md. Raja and another v/s. State of Bengal passed in Criminal Appeal No.1293 of 2022. However, the facts examined by the Apex Court were quite different particularly, the magnitude of the present offence. The organized manner in which the crime was committed and also the fact that yet several wanted accused are yet to be arrested, the appellant Page 26 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined can not be said to be incarceration for a long period. 18.33 The aforesaid issue of Section-43D(5) of the UAPA,1967 was the subject matter of consideration by the Apex Court in case of Gurwinder Singh v/s. State of Punjab passed in Criminal Appeal No.704 of 2024 dated 07-02-2024, interpreting Section-43D(5). The Apex Court in Para-17- 22, has held as under:
"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-à-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 find 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 Page 27 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined 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 Zahoor Ali Watali 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 prima 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 Sub-section (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.
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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?
22. 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'."
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18.34 Thereafter, the Apex Court proceeded to refer to the guidelines laid down for bail in the decision of the Apex Court in case of NIA v/s. Zahoor Ahmad Shah Watali reported in (2019) 5 SCC 1. The Apex Court in case of Gurwinder Singh (supra) in Para-23, has paraphrased the guidelines in Watali case as under:
"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 Page 30 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined presumptive opinion 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 the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance.
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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."
18.35 The Court may herein observe that co-accused; namely Rajkumar Perumal had filed Criminal Appeal No.2477 of 2022; Pradeep Kumar Anandsingh had filed Criminal Appeal No.2311 of 2022, Machavaram Sudhakar had filed Criminal Appeal No.1585 of 2022, Sobhan Aranfar had filed Criminal Appeal No.1429 of 2022 and Said Mohammad Hussaini had field Criminal Appeal No. 1507 of 2022, which came to be dismissed by Oral Order dated 09-06-2023 passed by this Court, wherein these accused persons had preferred Special Leave Petition (Criminal) Diary No.38756 of 2023, Special Leave to Appeal (Criminal) No.9793 of 2023 before the Apex Court, wherein the Apex Court had declined to interfere and in Special Leave to Appeal (Criminal) No.10908 of 2023, has issued Notice only to consider the aspect relating to the progress of the trial and the period in which, it could be completed.
19. In view of the pronouncement of the Apex Court in case of Gurwinder Singh (supra) and also having discussed the nature of offense Page 32 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024 NEUTRAL CITATION R/CR.A/1980/2023 JUDGMENT DATED: 28/03/2024 undefined having serious effect on the society, which is a result of an organized network and the role of accused-appellant with prima-facie evidence in support, the Court is not inclined to exercise discretion in favour of the appellant. Hence, the appeal is hereby dismissed. Rule is discharged.
Sd/-
(A.Y. KOGJE, J) Sd/-
(SAMIR J. DAVE,J) PARESH SOMPURA Page 33 of 33 Downloaded on : Fri Apr 12 22:46:58 IST 2024