Gujarat High Court
Fardin Amery @ Fardin Khan Omer Amery vs State Of Gujarat on 12 August, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/471/2025 ORDER DATED: 12/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (FOR QUASHING OF ORDER/STAY) NO. 471 of
2025
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FARDIN AMERY @ FARDIN KHAN OMER AMERY
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AFZALKHAN A PATHAN(11420) for the Appellant(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Appellant(s) No. 1
KSHITIJ M AMIN(7572) for the Opponent(s)/Respondent(s) No. 2
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 12/08/2025
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)
1. The present appeal is preferred by the appellant - original accused No.7 under the provisions of Section 21(1) of the National Investigation Agency Act, 2008 read with section 528 of Bhartiya Nagarik Shuraksha Sanhita 2023 against the order dated 19.3.2024 passed in NIA Special Case No.01 of 2022 by the learned Special Judge, NIA, City Sessions Court, Ahmedabad.
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2. The facts in brief qua the present appellant are as follows:
2.1 The allegation against the present appellant is that he played role of coordinator in facilitation of consignment of heroin laced talc stones imported into India in December 2020 through Mundra Port, Gujarat by the firm named M/s Magent India. The offence came to light when the Directorate of Revenue Intelligence Gandhidham Unit registered the case which pertains to seizure of 2988.21 kg of heroin alleged to have been originated from Afghanistan and routed through Bandar Abbas, Iran. The said drugs were smuggled to India concealed as talc powder in a consignment addressed to one M/s Ashi Trading Company. Based on the intelligence input, NIA took over the case and FIR came to be registered on 10.6.2021 under the NDPS Act and UAPA. The NIA has further alleged that the present appellant had made arrangement for off-loading the drugs consignment of M/s Ashi Trading Company at Khasra Nos.712-713 located at Alipur, Delhi and recovering Page 2 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined 16.105 kgs of powdery substance when the raid was conducted on 17.9.2021 came to be recovered from the floor sweepings. However, warehouse was found empty. Thus, it is the case of the prosecution that the present appellant has assisted WA 4 along with Pradeep Kumar - A5, Mohammad Hussain - A6 in off-loading consignment at the said warehouse. It is also the case of the prosecution that FIR bearing No.90 of 2021 registered at Garhshankar Police Station, District Hoshiarpur, Punjab is also connected with the present case inasmuch as regarding the purification and supply of heroin in furtherance of larger conspiracy of the present case. It is also found during investigation that in July 2021, Punjab Police had raided a farmhouse at Sainik Farm, Delhi resulting in recovery of 20.700 kg of heroin and four Afghan nationals came to be arrested on the instructions of Mohammad Hussain Dad (WA 1) and also further arrested 13 accused from UP and Delhi who used to collect and sent the drugs money to Hussain Dad (WA 1) in Afghanistan.
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3. Learned advocates Mr.Vali Mohammad Pathan, Mr.Afzal Pathan and Mr.Saurav Sharma appearing for the appellant - original accused No.7 would contend that :
(a) That learned Special Judge has materially erred in appreciating the fact that there is nothing on record to support the presumption in view of the fact :
(i) That concerned consignment which
came to India before 14.9.2021 contains
contraband;
(ii) That Fardin Amery was connected with
the trade of contraband substance;
(iii) That Fardin was ever recipient of any
proceeds from the trade of contraband substance;
(iv) That Fardin was involved in criminal conspiracy considering that there is no evidence Page 4 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined of communication between Fardin and other co-
accused in relation to contraband substance.
(b) That learned trial Judge has erred in holding that UAPA Act 1967 is applicable in the present case. However, grave or heinous nature and extent of crime may be and has thus broadly argued on two limbs :
(i) That no case is made out against the appellant under section 8(c), 21(c) and 29 of the NDPS Act;
(ii) That no case is made out against the appellant under sections 17 and 18 of the UAPA Act 1967.
(c) That entire case of the prosecution hinges on the fact that consignment was transported to Alipur Godown on 23.6.2001 containing contraband and secondly, the appellant has knowledge about the same. However, no Page 5 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined witness states to that effect and the prosecution has artfully arranged group of innocuous and innocent facts together in such a manner that it gives an impression of a larger criminal conspiracy and thereby wrongly implicated the present appellant.
(d) That statement of Arfan Baig, a truck driver and other witnesses would reveal that some white colour powdery substance was delivered in Alipur godown. However, on perusal of the invoice dated 21.5.2021 and the packaging list annexed to it would reveal that the same was being imported "semi processed talc stones" which would have same colour properties.
(e) That on perusal of the statements of Mayank Bhanushali dated 21.9.2021 and Naveen Kumar dated 9.3.2021, it is clear that two jumbo bags were checked at the time of custom clearance did not contain any contraband in it.
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(f) That as per the statement of Said Mahmood Hussaini - accused No.6 recorded on 18.9.2021, a detailed scrutiny of such bald allegations becomes even more important since as per the said statement on the instructions of wanted accused - WA No.5 i.e. Esmat Ullah Honari, accused No.6 arranged for Alipur Godown through Mr.Pradeep Kumar - accused No.5 and the keys of the godown were handed over to them by Rajkumar Dhankar on 17.6.2021 and from that day onwards till 30.6.2021 the keys remained with Esmat Ullah Honari exclusively. Thereafter, he went to Afghanistan and had hidden the key at a spot which was exclusively in his knowledge along with his unknown associates. Thus, access of godown from 23.6.2021 to 14.9.2021 i.e. for 83 days was exclusively with Esmat Ullah Honari and his unknown associates. However, no investigation has been carried out as to what happened during these 83 days.
(g) That it cannot be said with utmost precision that 16 kgs of heroin recovered on 17.9.2021 are remnants of Page 7 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined consignment which was loaded on Alipur godown on 23.6.2021. Thus, it is settled law that if two views are possible, one pointing to the guilt of the accused and the other towards his innocence, the one which is favourable to the accused must be adopted.
(h) That learned trial Judge materially erred in not appreciating the fact that there is no iota of material on record to prima facie support the allegation that prior to June 2021, co-accused persons and the present appellant were involved in importing contraband from Afghanistan.
(i) That it is clear from the record that the appellant had no knowledge about illegal working of wanted accused - WA 4 since it was always represented to the appellant that WA 4 or Hussain Shah all were involved in exporting or importing of different goods like dates, dry fruits etc.
(j) That the appellant was not in possession of keys of Alipur godown and had no access to the same. Page 8 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025
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(k) That there is nothing on record to suggest that besides acting as a driver of WA 4 and providing him support for unloading the consignment that came in a truck, the appellant had any real knowledge that consignment containing contraband.
(l) That there is nothing on record to suggest that post July 2021, the appellant had contact with WA 4 or any other co-accused and therefore, recovery of contraband substance on 14.9.2021 cannot be attributed to the appellant.
(m) That appellant met WA 4 in one of the social gathering of Afghan people and as the appellant was working as a translator and due to outbreak of pandemic, the appellant was not doing financially well and hence joined hands with WA 4 and started travel agency in the name and style of M/s Blue Sky Travel Agency. This aspect would be clear from the statement of Farshid Amery dated Page 9 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined 19.9.2021. Thus, as Afghan nationals struggling for money owing to the outbreak of pandemic and sudden halt in flow of income, the basis of opening a travelling agency with WA 4 - Najibullah Khalid because of his successful experience in export and import of goods which was evident from his lavish lifestyle.
(n) That as per the statement of Farshid Amery it was communicated to the appellant and his brother that Hussain Shah is a businessman engaged in export and import of dry fruits, coals, plastic portable coolers in different countries. On this pretext, a godown in Alipur was being looked for. Further, the use of term "mehman" as stated in the statement shows that even the real identities of the people visiting Hussain Shah were to conceal from the appellant and his brother. That even from the statement of the appellant herein, it is clear that he was ignorant about the consignment that came to Alipur on 23.6.2021 till last minute since there was no previous communication with WA 4 about arrival of consignment on 23.6.2021 and that Page 10 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined consignment did not even belong to WA 4, but that of Hussain Shah for whom the appellant had mere acquaintances.
(o) That the statement of Said Mahmood Hussaini - accused No.6 recorded on 18.9.2021 clearly states that godown keys were in exclusive possession of WA 5 - Esmat Ullah Honari.
(p) That the appellant has not played to facilitate escape of WA 4 in light of the statement of Haroon Shirzad dated 30.11.2021 wherein he has mentioned that he had booked flight tickets from Delhi to Kabul on 12.8.2021
(q) That except the present appellant knowing AW 4 and were connected as business partners and there is no incriminating material against the present appellant. That even with Hussain Shah, the present appellant had called thrice only on 1.7.2021 and 2.7.2021. Thus, there is nothing on record to suggest that post July 2021, the Page 11 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined appellant was part of any conspiracy pertaining to drug trafficking.
(r) That there is no evidence to the effect that WA 4 or WA 9 are persons or members of a terrorist organization or a members of a terrorist gang or individual terrorists who are involved in "terrorist activities" as defined under section 15 of the UAPA Act 1967. That from the chargesheet and even from the supplementary chargesheet, there is no even iota of material on record to suggest that WA 4 or any other co-accused are individual terrorists and are involved in any terrorist activities. That the prosecution has relied on the statement of Farshid Amery dated 9.3.2022 with regard to Hussain Shah as told by Sameer Ahmadi that Hussain Shah is having good support of Taliban and that nobody can approach Hussain Shah without having good connection with Taliban. That Sameer Ahmadi further stated to Farsheed Amery that it would be very difficult to get access to Hussain Shah now and I am aware that Taliban is indulging in terrorist activities in Afghanistan with active Page 12 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined support of terrorist group from Pakistan and hence, there is every possibility that Hussain Shah is also part of such terrorist group. However, this part of statement was missing in the previous statement dated 19.9.2021 and 30.11.2021 coupled with the fact that they are inadmissible being hearsay in nature and alleged connection of Hussain Shah with Taliban is not in personal knowledge of Farshid Amery but is dependent upon what Sameer Ahmadi told him.
(s) Learned advocate for the appellant has relied on the judgment of the Honourable Apex Court in the case of Yakub Abdul Razak Memon Vs State of Maharashtra though CBI, Bombay, reported in (2013) 13 SCC 1 to point out as to what terrorism means since it is not defined in UAPA Act 1967. Thus, it is argued that intent or likelihood of an act threatening (i) the security of the State, described variously in section as unity, integrity, security, economic security, sovereignty and (ii) of striking terror which has been outlawed by the said Act and is argued that such an act is not made out in the present case.
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(t) It is further argued that as held by the Honourable Apex Court in A.K.Roy Vs Union of India and others reported in (1982) 1 SCC 271 it is sacrosanct principle of penal provisions that they must be construed strictly and narrowly to ensure that a person who was not within the legislative intendment does not get roped into a penal provision. Also, the more stringent a penal provision, the more strictly it must be construed and has argued that applying strict and narrow construction, no case is made out against the appellant.
(u) That because the Honourable Apex Court in the case of Zameer Ahmed Laitful Rehman Sheikh Vs State of Maharashtra reported in (2010) 5 SCC 246 held that "the essential element in both is the challenge or threat or likely threat to the sovereignty, security, integrity and unity of India and that while Section 15 requires some physical act such as use of bombs and other weapons etc. Since no such physical act is attributed to present accused, present Page 14 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined appeal be allowed.
(v) That applying the aforesaid principle in the present case, there is no material on record that the appellant or any of the co-accused has even intended for the same. Thus, simpliciter act of importing an assignment of huge quantity of narcotics by the co-accused without it being shown that the same was done to generate revenue for the terrorist acts which poses a challenge to the sovereignty, unity, integrity and the very existence of the nation will not fall under section 15 of UAPA Act. Thus, it is argued that once section 15 is not attracted, corollary would be section 17 of the UAPA Act will have no applicability in the facts of the present case.
(w) That entire record is completely devoid of any sort of clear and conscientious conduct of the appellant which would suggest that he was part of larger conspiracy attracting section 120-B of IPC, section 29 of the NDPS Act or section 18 of the UAPA Act. Learned advocate has relied Page 15 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined upon the decision in the case of Kehar Singh and others Vs State (Delhi Administration), reported in (1988) 3 SCC 609 to contend that it is essential that the offence of conspiracy requires some kind of physical manifestation of agreement and that relevant act of conduct of parties must be conscientious and clear to mark their concurrence as to what should be done. The concurrence cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence. The innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict. Learned advocate for the appellant has further relied upon the decision in the case of State (NCT of Delhi) Vs Navjot Sandhu, reported in (2005) 11 SCC and has argued that a few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused in the offence of criminal conspiracy. The circumstances before, during and after the occurrence can be proved to decide about the complicity of the accused. Thus, it is argued that in absence of conspiracy charge, recovery made from other co-accused Page 16 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined persons cannot be attributed to the appellant herein. That entire case of the prosecution is based on baseless presumption and inferences which have been drawn by taking a few bits here and a few bits there and thus, the appellant deserves to be discharged.
(x) Learned advocate for the appellant has further relied upon a decision in the case of Dilawar Balu Kurane Vs State of Maharashtra, reported in (2002) 2 SCC 135 to argue that if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused. Thus, it is argued that the present appeal be allowed and the impugned order dated 19.3.2024 passed by the learned Special Judge, NIA dismissing the discharge application of the appellant being NIA Special Case No.1 of 2022 is required to be quashed and set aside.
4. On the other-hand, learned advocates Mr.Kshitij Page 17 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined Amin, Mr.Sandip Sadavarte along with Mr.Girish Gotwal, Dy.SP, NIA are present for the respondent authorities. Learned advocate Mr.Sandip Sadavarte has relied upon the affidavit-in-reply filed on behalf of the NIA and has contended :
(a) That the present appellant along with WA 1, WA 4, A5, A6, A32, A35 and WA 7 have conspired and facilitated them in renting godown at Alipur, Delhi in his name for storage of drugs consignment in lieu of monetary consideration.
(b) That the present appellant accused assisted A5, A6, WA 4 and WA 1 in unloading and storing drugs consignment sent from Afghanistan to Mundra which was further transported to Alipur, Delhi in June 2021.
(c) That CDR would clearly establish interaction between WA 4 (Najibullah Khalid) and witness Digvijay Singh Rahore to confirm warehouse address i.e. Khasra Page 18 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined No.712-713, Main Phirni Road, Village Alipur, Delhi for the delivery of the first narcotics drugs consignment which was received by WA 4. That mobile tower location of CDR would reveal that present accused along with WA 4 (Najibullah Khalid), WA 1 (Mohammad Hasan), A5 (Pradeep Kumar), A6 (Said M.Hussaini) and present accused Fardin Amery were present together at the godown at Alipur, Delhi for receiving and unloading first consignment on 23.6.2021 which was delivered by the witness driver whose mobile location was also found at the same place, date and time.
(d) That mobile of the present appellant on 23.6.2021 was also found in the tower location at godown at Alipur, Delhi for June 2021 consignment.
(e) That above stated facts are also corroborated from the statement of four protected witnesses who have revealed and established all the relevant incriminating facts in their respective statements under sections 161 and 164 of CrPC.
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(f) That call history between the present appellant with WA 4 (Najibullah Khalid) between 5.10.2020 and 13.7.2021 is 286 calls in number. That call history between WA 1 (Mohammad Hussain) and present appellant between 1.7.2021 and 2.7.2021 is 3 calls in number.
(g) That charges against the present appellant are for the offence under section 120-B of IPC read with sections 8(c), 21(c) and 29 of the NDPS Act and also under sections 17 and 18 of the UAPA Act 1967. That during investigation, it is revealed that as a part of larger conspiracy, semi processed talc stones were sent in six consignments across India through Culcatta and Munda Port by the same co- conspirator sender from Afghanistan thgough Bandar Abbas Port of Iran to a single person - co-conspirator. Thus, consignments were always delivered to a single person who is currently at large. Only the intermediaries such as the Importer, Customs House Clearing agent, transporter were different in each of these transactions. Page 20 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025
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(h) It is further argued that even reference numbers have not been changed in the certificate of origin which clearly shows the unlawful intention of the sender. In this context, it is submitted that despite having knowledge of illegal activities by the appellant along with co-accused deliberately with an illegal intention kept accused No.2 signing the documents and in turn accused No.2 kept on persistently and knowingly kept signing documents related to the said consignments of contraband imported from the firm M/s Aashi Trading Company. It is submitted that on 9.6.2021 and 11.9.2021 similar type of consignments declaring goods as semi processed talc stones were sent from Afghanistan to Mundra Port, Gujarat by consigner - M/s Hasan Husain Limited, Afghanistan (A-37) via Bandar Abbas Port, Iran which were imported by firm of accused No.32 and were unloaded at Delhi in warehouse at Alipur hired in the name of accused No.5 (Pradeep Kumar) by accused No.6 (Said Mohammad Hussaini) as per the direction of WA 5 - Eshmat Ullah Honari and was received Page 21 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined at the warehouse by WA 4 (Najibullah Khalid) wherein Pradeep Kumar - A-5, Said Mohammad Hussaini - A6 and Fardin - present accused had assisted WA 4 (Najibullah Khalid) in off-loading of consignment at the said warehouse for sending proceeds of crime to Afghanistan to the tune of Rs.78.6 crores.
(i) That similarly, another consignment on 15.6.2021 loaded at village Khera Kalan, Industrial area, PS-Alipur, Delhi hired in the name of WA 4 (Najibullah Khalid) was received by WA 4 which contains heroin laden bituminous coal consignment along with WA 1, A7 at the said warehouse wherein the present appellant also had assisted in off-loading consignment. That no order was placed for semi processed talc stones neither by M/s Ashi Trading company nor at Hasan Husain Limited, Afghanistan. That importer M/s Ashi Trading Company did not have a buyer for the declared goods i.e. semi processed talc stones yet through accused Nos.1, 2 and 3 imported the same. Further M/s Ashi Trading Company through accused Page 22 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined No.3 along with accused Nos.1 and 2 did not invest a single penny and all that was done was through the "TALC" groups created on whatsapp for furthering conspiracy for smuggling of contraband heroin in the guise of talc stones. That importer M/s Ashi Trading Company through the present appellant along with co-accused Nos.1, 2, 3, 5, 6, WA-4, WA-5 were acting as a frong in India for the overseas supplier Hasan Husain Limited, Afghanistan (WA1 and WA
2) through WA 3, WA 4 and others.
(j) That all the customs duty, clearance charges, port charges, inland transportation from Mundra to Delhi etc. were also financed by the overseas supplier. That Amit is a fictitious person and likewise consignee Kuldeep Singh as mentioned in GST invoice is also fictitious person. Neither of the persons were found linked to the warehouse where the goods were to be delivered. Neither A1, A2 nor A3 received any money from so called Amit or Kuldeep Singh against the projected sale shown in the GST invoice. Rather money was received by A1 in connivance with A3 through Page 23 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined hawala operator from WA 1 (overseas supplier) for squaring of the deal.
(k) That there are ample evidence on record to show that funds were collected through hawala route. That the drugs collected by DRI Delhi was through floor sweeping from warehouse at Khasra Nos.712 and 713, main Phirni road, near Shivam dharm Kanta, Alipur, Delhi which contained traces of heroin since the actual consignment was already disposed from the premises by said international drugs cartel due to which A5, A6 and the present appellant
- A7 came to be arrested. Moreover, CRCL clearly revealed that the powdery substance collected from floor sweepings at the said godown contained traces of heroin. That recovery of 16.405 kgs of heroin from floor sweepings from the hired godown at Khasra Nos.712-713, Alipur, Delhi are admittedly remnants of heroin of first consignment of June 2021 which was taken on rent by WA1, WA 4, A5, A6 and their co- accused persons including A1, A2, A3, present appellant and others. That there are reasons to believe that the Page 24 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined present appellant is allegedly involved in such offences which is huge in quantity and there being ample evidence on record to prove involvement of the present appellant has argued to reject the present appeal.
(l) Lastly, it is argued that witnesses have been examined almost 29 in numbers and 80 witnesses have been purning down and hence trial having commenced, it is argued to reject the appeal.
5. Heard learned advocates for the respective parties. We have perused the documents placed on record, more particularly, chargesheet and evidence against the present appellant - accused No.7.
6. The documents placed before us reveal that the present offence involves cross border smuggling of narcotics drugs in huge quantity and such activities are undertaken by involving number of persons across India with proper networking and each particular being assigned a specific Page 25 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined role with the use of technology and thus there exists pattern of covert coordination, fictitious entities and barter based compensation which are main features as pointed out by the prosecution. The appellant herein is facing serious charges which have grave societal ramifications including the facilitation of cross border drugs trafficking operated in organized manner which ultimately is liable for degradation of public health at large. If the seizure in connection with the consignment in question is taken into consideration, the prosecution claims to be one of the largest heroin seizure which is valued at 21,000 crores in Indian rupees which involves sophistication of operation involving foreign syndicates, shell firms, medical visas under the pretext of treatment, use of whatsapp (social media) and false documentation which shows gravity of the offence which is far beyond routine NDPS cases.
7. The present appeal is against the order passed by the learned Special NIA Court rejecting the application of discharge filed by the present appellant accused. In this Page 26 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined regard, principles governing the framing of charge and discharge laid down by the Honourable Apex Court in the case of Sajjan Kumar Vs CBI reported in (2010) 9 SCC 368 are as under:
"17 On consideration of the authorities about the scope of section 227 and 228 of CrPC, the following principles emerge:-
(i) The Judge while considering the question of framing the charges under section 227 of the CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
(iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to Page 27 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to find out if the Page 28 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined facts emerging there from taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
Thus, while considering the question of framing of charges, learned trial Court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out or not to determine prima facie case would depend upon the facts of each case and there cannot be a rule of any universal application where the materials placed before the Court Page 29 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge against the accused. It is also well settled principle that at the stage of framing of charge, the evidence cannot be gone into meticulously. It is also well settled principle that whether the case is based on direct or circumstantial evidence, charge can be framed if there are materials showing possibility of commission of offence by the accused as against certainty. It is also well settled principle that the Court should not conduct roving enquiry or make an attempt to weigh the evidence as if he was conducting a full-fledged trial. Thus, there must exist clear reason showing the absence of grave suspicion at the stage of framing the charge, the Court should not discharge on the guilt or innocence of the accused nor the Court is expected that the prosecution should provide evidence that conclusively prove the guilt before trial began. Thus, strong suspicion supported by the material evidences is sufficient to frame the charge if leads to conclusion that the accused might have committed the offence.
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8. In the present case, we have also gone through the impugned judgment. On perusal of papers placed before us and considering the nature of evidence collected by the Investigating Agency and the details stated in the affidavit including the statements of the protected witnesses and the statements recorded under section 161 of CrPC and after having found prima facie evidence which reveals that the present appellant along with A1, A2, A3, A5, A6, WA1, WA4, WA5, WA7 and other co-accused running drugs cartel through the firm i.e. M/s Ashi Trading Company coupled with the fact that the present appellant accused has worked as translator / interpreter in various hospitals at Delhi NCR and opened travel agency in the name and style of M/s Sky Blue Travel Agency in New Delhi along with WA4 (Najibullah Khalid) as his partner. The documentary evidences, prima facie, reveal that the present appellant was identified as a partner of WA 1 and 4 and there is also enough material on record to prima facie point out the presence of accused No.7
- appellant herein in facilitating unloading of drugs at Page 31 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined warehouse Khasra Nos.712-713, Alipur, Delhi where WA 1, WA4, WA5 and A6 were present which also prima facie is revealing from the call details record (CDR) analysis report regarding location of the tower at the place of warehouse. The present appellant had also provided logistic support to WA 4 (Najibullah Khalid) by introducing WA 1 to real estate agent in Lajpatnagar who provided rental accommodation to WA1 in January 2021 and introduced WA 4 to travel agent in Lajpatnagar who in turn arranged air tickets for WA4 and his entire family against cash payment. Thereafter, WA 4 along with his family fled from India in August 2021 post drugs seizure by the Punjab police at rented farmhouse in Sainik Farm.
9. This Court has also gone through various statements relied on by both the parties and the papers of chargesheet, we are in concurrence with what has been held by the learned Special Judge while rejecting the discharge application and having found prima facie the case which creates grave suspicion, more particularly, the present Page 32 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined appellant accused having talked with WA 4 (Najibullah Khalid) between 5.10.2020 and 13.7.2021 running into 286 number of calls and with WA 1 (Mohammad Hussain) three times from 1.7.2021 and 2.7.2021 coupled with the fact that location of the present appellant at farmhouse, Khasra Nos.712-713, Alipur, New Delhi coupled with the fact that manner in which the entire modus operandi through which drugs syndicate has operated, the appellant's role prima facie surfaces from the record of the case attracting the charges levelled against him, more particularly, when section 120-B of IPC is also invoked by the NIA and at this stage, we do not find any basic infirmities from the documents placed before us for not attracting the alleged offences.
10. As far as attracting the provisions of UAPA Act 1967 are concerned, the statement of Farshid Amery dated 9.3.2022 cannot be given go-bye at the stage of framing the charge treating it as hearsay evidence. The question of admissibility or inadmissibility or that of hearsay in nature Page 33 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined cannot be gone into at this juncture for the reasons already stated hereinabove that while framing the charge, mini trial is not required to be conducted.
11. As far as judgments relied upon by the appellant i.e. Yakub Abdul Razak Memon (supra), A.K.Roy (supra), Zameer Ahmed Laitful Rehman Sheikh (supra), Kehar Singh and others (supra) and State (NCT of Delhi) (supra) are concerned, we are bound by the ratio laid down in the said judgments. However, we are not sitting in appeal against the order of conviction but what has been challenged before this Court is the order rejecting the discharge application and though this is an appeal under the provisions of the NIA Act, we are aware of the limitation of venturing meticulously into the evidence while assailing the order of rejection of an application for discharge. However, when strong prima facie suspicion of grave offence reveals from the papers of chargesheet, the learned trial Court has committed no error much less apparent error on the face of the record which requires interference.
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12. Learned advocate for the appellant has himself relied upon the judgment in the case of Dilawar Balu Kurane (supra) wherein it is held thus :
"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in Page 35 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
Thus, in the above referred case also, it is held that the Court should not make roving inquiry into the pros and cons of the matter and weigh evidence as if he was conducting trial. In such circumstances, cited case goes against the accused and as correctly held by the learned trial Court to which we also concur that strong prima facie of grave suspicion against the present appellant is made out. Thus, we see no ex facie infirmities in the impugned order. The appellant's complicity is clearly made out from the papers of chargesheet and the investigation reveals that the case is not rested solely on physical recovery of narcotics drugs but is also based on conspiracy and Page 36 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025 NEUTRAL CITATION R/CR.A/471/2025 ORDER DATED: 12/08/2025 undefined facilitation.
13. It is also required to be noted that the trial has commenced and 29 witnesses have been examined and the next date of examining witnesses is 12.8.2025. It is also stated by learned for the NIA that purning of witnesses is also in progress which will also bring down the number of witnesses to be examined.
14. Under these circumstances and for the reasons stated hereinabove, the appeal fails and the same is dismissed accordingly.
(ILESH J. VORA,J) (P. M. RAVAL, J) H.M. PATHAN Page 37 of 37 Uploaded by H.M. PATHAN(HC00167) on Wed Aug 13 2025 Downloaded on : Wed Aug 13 22:52:01 IST 2025