Gujarat High Court
Said Mohammad Hussaini S/O Sayed Ali vs National Investigation Agency Thro ... on 9 June, 2023
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
R/CR.A/1507/2022 ORDER DATED: 09/06/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1507 of 2022
================================================================
SAID MOHAMMAD HUSSAINI S/O SAYED ALI
Versus
NATIONAL INVESTIGATION AGENCY THRO SUPERINTENDENT OF
POLICE AND CHIEF INVESTIGATION OFFICER, MUMBAI
================================================================
Appearance:
AADITYA D BHATT(8580) for the Appellant(s) No. 1
CHANDNI S JOSHI(9490) for the Appellant(s) No. 1
MR DEVANG VYAS, ASG assisted by MR KSHITIJ AMIN for the
Opponent(s)/Respondent(s) No. 1
MS KRINA CALLA, APP for the Opponent(s)/Respondent(s) No. 2
================================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 09/06/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. In all, hearing of 6 applications is conducted where Advocates for each of the applicants have made elaborate and separate submissions and hence, separate orders are passed vide applications.
2. The present appeal is filed under Section 21 of the National Investigation Agency Act, 2008 and read with Section 439 of the Criminal Procedure Code for regular bail. The prayer made in the appeal is as under:-
"a) This Hon'ble Court may be pleased to enlarge the Page 1 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined Appellant forthwith on bail with F.I.R. No.RC-
26/2021/NIA/DLI registered by Superintendent of Police, National Investigation Agency for alleged offences punishable under Section 120B of the IPC r/w. Section 8(c), 21(c) & 29 of the NDPS Act, 1985, and Sections 17 & 18 of the U.A. (P) Act, 1967 on 06/10/2021, Previously arrested through the office of Directorate of Revenue Intelligence (DRI), Delhi Zone Unit who had registered case No.DRI /DZU/34/ENQ-11/2021 under Sections 22, 23, 25, 26, 27A, 28 & 29 of the NDPS Act, on such reasonable terms and conditions as this Hon'ble Court may deem fit to impose in the interest of justice and the circumstances of the case;"
3. The appellant, who is Afghan national, is attributed with the role that he facilitated securing of warehouse within Delhi so as to offload consignment containing narcotic substance and in doing so, he had taken help of locals.
4. From the charge sheet, it is alleged that the appellant conspired with Mohammad Hussain Dad @ Hussain Shah Noorzai @ Haji (Wanted Accused-1) (hereinafter to be referred to as "WA"), Najibullah Khalid (WA-4), and Pradeep Kumar (A-5) for the arrangement of a warehouse at Alipur Delhi for the safe custody of smuggled drugs. It is also alleged that he assisted Mohammad Hussain Dad @ Hussain Shah Noorzai @ Haji (WA-1) and Najibullah Khalid (WA-4) in the unloading and storage of the Page 2 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined consignment of drugs sent from Afghanistan in the Month of June, 2021. It is further alleged that Appellant received drugs proceeds from Hussain Dad @ Hussain Shah Noorzai @ Haji (WA-1) for the arrangement of warehouses and making payment of Rs.2.80 lakh to the owner of Alipur warehouse as a security deposit and one month rent and further making payment of Rs.1.6 lakh to the owner of Gurgaon Warehouse as a Security deposit and one month rent.
5. Learned Advocate appearing on behalf of the applicant submitted that considering the nature of the offence, the applicant may be enlarged on bail by imposing suitable conditions. 5.1 It is submitted that the appellant is an Afghan national. He is an honest, law-abiding and hardworking youth who for sake of employment is working in Medanta (Hospital), New Delhi as a translator/interpreter for the foreign patients precisely Afghan nationals for speedy and fluent communication between Hospital staff and patients. It is submitted that the Appellant came in touch with Eshmat Ullah Honari (WA-5), when he came to Medanta (Hospital) for treatment of his brother along with his family, Eshmat Ullah Honari (WA-5) took contact number of appellant from a person namely Seyed Mokhtar who is a previous employee in the Medanta (Hospital). That upon arriving in India Appellant was informed by Eshmat Ullah Honari (WA-5) that apart from treatment, he wanted to have a warehouse, further he needed a Page 3 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined taxi driver and an interpreter, where the present Appellant has worked as a Translator/interpreter, further Eshmat Ullah Honari (WA-5) wanted to find a warehouse and it was duly arranged by Pradeep Kumar (A-5) who was also a driver. Eshmat Ullah Honari (WA-5) informed Appellant Eshmat Ullah Honari (WA-5) that he did not have the necessary documents for entering into tenancy as some of his documents were still in Afghanistan, therefore, Pradeep Kumar (A-5) helped him in taking warehouse in his name; however, none of them knew about ill intentions of WA-5. 5.2 It is submitted that the Appellant has no direct involvement in the said offence of business of drugs nor the Appellant is involved in any conspiracy for the arrangement of any warehouse for the safe custody of smuggled drugs. The present Appellant has no criminal antecedent and has been falsely implicated in the said offence.
5.3 It is submitted that as far as the present Appellant is concerned the Respondent without any consideration has applied Provisions of The Unlawful Activities (Prevention) Act, 1967 and Narcotic Drugs and Psychotropic Substances Act, 1985. 5.4 Learned Advocate for the appellant has thereafter prayed for regular bail by assailing lapses in the investigation and submitted that there was no narcotic substance inside the first Page 4 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined consignment and therefore the alleged participation of the present accused in the said consignment; at the time of unloading the consignment itself is nothing but a flimsy and fanciful allegation. It is submitted that Statement of Mayank Bhanushali-Customs examination process confirms that there was no unusual smell while opening container of 1st shipment; whereas, DRI in their Panchnama for the 2nd lot observes that they noticed pungent smell while opening 2nd container from 2nd lot (September) Shipment. It is submitted that moreover, 1st consignment was cleared after holding at Indian Customs custody after all process completion including clearance at customs approved laboratory. Mayank Bhanusali has also stated that he did not verify seal numbers while opening the 1st shipment container and also confirms no customs inspector was present at the time of seal cutting. He has also stated that the customs inspector did not pick samples from any particular bag and selected randomly which prima facie establishes that the present Appellant had no role in the customs process. 5.5 It is submitted that upon raiding the godown DRI claims to have recovered a quantity of 16.405 kgs of Heroin from sweeping the floor which they claim to be the remnants of 1 st consignment of June. It is submitted that however, this version doesn't inspire confidence because no person who commercially deals in drugs cartel, would let go off such a huge quantity of Page 5 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined Heroin into waste; if DRI/NIA has estimated the value of 3000 kg of heroin to be 21,000 Cr, then 1kg would have an approximate cost 7 cr; and therefore DRI's version that they collected dust/waste to the tune of 16.405 kg of heroin; would make the approximate value of the leftover to be 114.83 Cr. which the DRI claims to have recovered through sweeping the floor. It is also surprising that the godown occupants / tenants did not do any activity to discard any traces of narcotic substance after that godown was locked by Pradeep on 14th September as per charge sheet; and DRI raided the same on 17th September Pradeep vacated prior to seizure of 2 nd container. It is submitted that the customs Department was holding the first Consignment at a bonded warehouse for 10 days. Process wise date is available in the Charge sheet to indicate that thorough steps were taken to clear the customs consignment; (Ref. Gate Pass order No.2042128158 dated 19/06/2021. Therefore, the version of NIA that even first consignment contained heroin cannot be believed.
5.6 It is submitted that though the prosecution is relying upon the statements recorded during the course of investigation, including that of the appellant, still by relying upon the decision of the Apex Court in case of Tofan Singh Vs. State of Tamil Nadu, reported in (2013) 16 SCC, 31 and (2021) 4 SCC, 1, it would be treated to be a weak piece of evidence to connect the appellant Page 6 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined with the offence and therefore, virtually, there is no evidence to connect the appellant with the offence.
5.7 With regard to grant of bail, learned Advocate for the appellant has referred to requirement of Section 37 of the NDPS Act and has relied upon the decision of the Apex Court in case of Ranjitsing Brahmajeetsing Sharma Vs. State Of Maharashtra, reported in AIR 2005 SCW, 2215, where the Apex Court had examined the paramateria provision being Section 21 of the MCOCA Act.
6. As against this, learned ASG appearing for NIA has opposed grant of regular bail looking to the nature and gravity of the offence. Learned ASG has placed reliance upon charge sheet documents and submitted that The case was registered by Directorate of Revenue Intelligence (DRI) Unit-Gandhidham, Gujarat vide Case file No.DRI/AZU/GRU/NDPS-01/2021 under the provisions of the Narcotics and Psychotropic Substances Act, 1985 (in short 'N.D.P.S Act' for the sake of brevity). The offence pertains to a seizure of total 2988.210 Kgs of narcotics drugs Heroin at Mundra Port. The said consignment was sent from Afghanistan via Bandar Abbas, Iran. The consignment of heroin concealed with Talc Powder was imported at Mundra Port in the name of M/s. Aashi Trading Company. The DRI investigation has revealed that, the accused persons, earlier in the month of June, 2021 managed to Page 7 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined smuggle huge quantity of narcotics drugs heroin from Afghanistan to Mundra Port, Gujarat and further delivered and concealed in the godown at Alipur in Delhi by adopting the same modus operandi. 6.1 It is submitted that the follow up actions by DRI, Gandhidham, Gujarat, in respect of aforesaid seizure of narcotics drugs substance (2988.21 KG) from Mundra Port, Gujarat resulted in further seizure of 16.105 kgs of suspected narcotic substance (Heroin) from Alipur, New Delhi under provisions of NDPS Act, 1985 by DRI, Delhi and the DRI, Delhi arrested accused persons 5- Pradeep Kumar S/o Anand Singh, 6-Sayed Mohammad Hussaini S/o Sayed Ali, and 7-Fardin Amery @ Fardeen Khan S/o Omer Amery on 19.09.2021 as per charge sheet.
6.2 It is submitted that the accused persons arrested by DRI, Delhi in DRI Case No.DRI/DZU/34/ENQ-25/2021, being part of the conspiracy and involved in NIA RC-26/2021/NIA/DLI being connected offence and being same gang of organized crime of Drugs and being the second consignment, which was also sent from the same person i.e. Hussain Shah (WA No.1) hailing from same destination with same modus operandi.
6.3 In view of the above, the Ministry of Home Affairs, Govt. of India vide their order No.11011/64/2021/NIA dated 25 th October 2021, in exercise of the powers conferred under Sub-
Page 8 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined
Section (5) of Section 6 read with Section 8 of the NIA Act, 2008, directed the NIA, Mumbai to take over the case of DRI Delhi, No. DRI/DZU/34/ENQ-25/2021 being connected offence. In pursuance to the said order, on 03.12.2021 NIA took over case papers of DRI case. It is submitted that the Police custody of the above named accused nos. 4, 5 and 6 were taken over by NIA from NIA Special Court, Ahmedabad for the period from 06.12.2021 to 15.12.2021 for interrogation.
6.4 It is submitted that during the course of investigation and interrogation of arrested accused persons, it was revealed that accused namely Sobhan Aryanfar (A-8) S/o. Abdul Hamid has been involved in huge Hawala transactions for sending back the drug proceeds to Afghanistan. Accordingly, on 12.12.2021, accused Sobhan Aryanfar S/o, Abdul Hamid was arrested in the present case. On 13.12.2021, arrested accused Sobhan Aryanfar was produced before the Court of IVth Additional Metropolitan Sessions Judge / Special Court for NIA Cases at Nampally, Hyderabad requesting for the transit remand. The Court granted (03) days transit period with direction to produce the accused person before the investigation in the case led to the arrest of following Afghan nationals- (i) Murtaza Hakimi @ Sahil Khan @ Mohammed Faisal, S/o. Mohammad Nadar, (ii) Alokozai Mohammad Khan@ Saif Khan, S/o. Osman Khan @ Mahmood Khan (iii) Jamshid Sakizada, Page 9 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined S/o.Mohammad Alam, & (iv) Sameer Khan @ Ahmad Shamim, S/o.Haji Mohammad Nasim, and one Uzbek national namely Ahmedova Sadokat @ Hayat, D/o. Ahmad Ahmedova. 6.5 It is submitted that, investigation conducted so far by the NIA indicates that amongst the above named arrested accused two of them namely-9) Murtaza Hakimi @ Sahil Khan @ Mohammed Faisal and 10) Alokozai Mohammad Khan@ Saif Khan were having direct links with the arrested as well as wanted accused in NIA Case RC-26/2021/NIA/DLI and have played a key role in further disposal of drugs smuggled into India from Afghanistan. It is submitted that, on 20.01.2022 NIA filed an application before this Hon'ble Court seeking Police Custody (Remand) of aforesaid accused persons. This Hon'ble Court was pleased to grant the Police Custody (Remand) for a period of 05 (Five days) (i.e. in the chargesheet accused nos. 9 and 10 are shown as accused nos.10 and 9).
6.6 Regarding role of the appellant, it is submitted that he was tasked for hiring of godown for unloading of the heroin laden semi processed talc stones of Aashi Trading Co. for the 1 st Consignment of June, 2021 in connivance with Pradeep Kumar (A-
5) and wanted accused persons. The said warehouse 712/713, Main phirni, Dharam kanta, Alipur, Delhi, is identified as wherein the earlier consignment of Aashi Trading Co. was offloaded and said Page 10 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined premises was searched by DRI DZU on 17.09.2021 and same was found to be empty. However, floor sweeping thereof resulted in the recovery of 16.105 kgs of powdery substance which prima facie tested positive for Narcotic Substance Heroin. Accordingly, DRI Delhi Zonal Unit registered a separate case vide No.DRI/DZU/34/ENQ-11/2021 under sections 22, 23, 25, 26, 27A, 28 & 29 of the NDPS Act, 1985 and arrested Pradeep Kumar (A-5), Afghan national Said Mohammad Hussaini (A-6) and Fardin Amery@ Fardeen Khan (A-7). The godown was taken on rent as per the directions of fellow Afghan national Eshmat Ullah Honari (WA-
5).
6.7 At the time of unloading Najibullah Khalid (WA-4), Said Mohammad Hussaini (A-6), Pradeep Kumar (A-5), and Fardin Amery @ Fardeen Khan (A-7), had assisted WA-4 in offloading of the consignment at the said warehouse.
6.8 Since, Said Mohammad Hussaini (A-6) facilitated the wanted Afghan National accused consignor by way of logistic support for the safe landing and further movement and delivery of drugs. He has Received Drug proceeds.
6.9 It is submitted that analysis report of the tower locations of mobile numbers 8882536262, 9873984833 used by WA-4, (Najibullah Khalid), mobile number +93 700937070 & Page 11 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined 7065609762 used by WA-1, (Mohammad Hasan), mobile number +91 7467059961 used by A-5 (Pradeep Kumar), mobile number +91 8585955874 & +917836915852 used by A-6 (Said M. Hussaini), mobile number +91 9999461965 used by A-7 (Fardin Amery), mobile number +93702696533 used by WA-5 (Esmat Ullah Honari), establish their presence together at Khasra No. 712-713, Main Phirni Road, Village-Alipur, Delhi for the receiving and unloading the first consignment on 23/06/2021 at the said warehouse, which was delivered by the witness driver whose mobile number 9799113849 location was also found at the same place, date and time.
7. In rejoinder, learned Advocate for the appellant submitted that the prosecution has not placed anything as evidence of conspiracy. There is nothing to indicate meeting of mind. The requirements of NDPS Act attract provision requiring conscious possession of narcotic substance, which, insofar as the appellant is concerned, is completely missing. Section 42 of the NDPS Act requires certain exigencies to exist and as a matter of fact, it is the burden of the prosecution to establish existence of essential requirement of Section 42 of the NDPS Act, which is absent. 7.1 Learned Advocate for the appellant submitted that even if the provisions of Section 43D(5) of the Unlawful Activities (Prevention) Act, 1967 are to be considered, yet there is no bar on Page 12 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined the Constitutional Court to grant bail. In this regard, learned Advocate for the appellant has relied upon decision of the Apex Court in case of Union of India Vs. K.A.Najeeb, reported in (2021) 3 SCC, 712.
8. Having heard learned Advocates for the parties and having perused documents on record, from the charge sheet, it appears that role of the appellant is that he is an Afghan National and was living in Gurugram, India and was involved in the business of the drugs in the guise of an interpreter for the Afghan nationals visiting India for the medical treatment. He conspired with WA-1, WA-4, and A-5 for the arrangement of warehouse at Alipur Delhi for the safe custody of smuggled drugs. He assisted WA-1 and WA-4 in the unloading and storage of the consignment of drugs sent from Afghanistan in the Month of June 2021. He received drugs proceeds from WA-1, for the arrangement of warehouses and also paid Rs. 2.80 lakh to the owner of Alipur Warehouse as a Security deposit and one month rent and Paid Rs. 1.6 lakh to the owner of Gurgaon Warehouse as a Security deposit and one month rent.
9. The Ministry of Home Affairs, Government of India, having regard to the gravity of the offences with national and international ramifications, issued orders in exercise of the powers conferred under Sub-Section (5) of Section 6 read with Section 8 of National Investigation Agency Act, 2008, vide Ministry of Home Page 13 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined Affairs, CTCR Division, North Block, New Delhi F. No.11011/64/2021/NIA, dated 06.10.2021 transferred the case to NIA, Mumbai. In compliance to the order of MHA, NIA re- registered the case as RC-26/2021/NIA/DLI on 06.10.2021 under Sections 8 (c), 23 of NDPS Act, 1985 and Sections 17 and 18 of the Unlawful Activities (Prevention) Act, 1967.
10. Subsequently NIA, submitted original FIR No.RC 26/2021/NIA/DLI in the NIA Special Court, Ahmedabad on 07/10/2021 and took over the investigation of the case from DRI Gandhidham on 12.10.2021 and got transferred all the case papers/ documents/articles along with the physical custody of the 03 arrested accused persons from the Special NDPS Court, Bhuj to NIA, Special Court, Ahmedabad, Gujarat vide order dated 11.10.2021.
11. That charge sheet was filed on 14/03/2022 qua accused nos.1 to 10 also showing (absconding) wanted accused nos.1 to 6 (i.e. WA-1 to WA-6), under Sections 120B, 466, 471 of the Indian Penal Code, 1860, Sections 8(c), 21(c), 23(c) and 29 of the NDPS Act, 1985 and Sections 17, 18 and 20 of the U.A.(P) Act, 1967. It is submitted that the Sanction for prosecution under Section 45(1) of the U.A.(P) Act, 1967 has also been obtained. The case is registered as NIA Special Case No.1 of 2022.
Page 14 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined
12. It is pertinent to note that the further investigation as per Section 173(8) of the Code of Criminal Procedure, 1973 is also going on for unearthing the larger conspiracy and to arrest the wanted accused persons and other suspects, with an aim to bust the complete nexus of international drug mafia and their terror financing modules.
13. It also appears that during investigation, it has surfaced from Analysis report of the tower locations of mobile numbers 8585955874 and +917836915852 used by A-6 (Said M.Hussaini) establishes his presence with other accused at Kharsa No. 712- 713, Main Phirni Road, Village- Alipur, Delhi for receiving and unloading the first consignment on 23/06/2021 at the said warehouse, which was delivered by the witness driver Irfan Baig whose mobile number 9799113849 location was also found at the same place, date and time.
13.1 Call details record/call history between A-6-Said M.Hussaini and A-5-Pradeep Kumar during the period indicating their communication for hiring the warehouse on rent for the storage of the smuggled narcotics drugs heroin. 13.2 Ikram Baig (cleaner) who had accompanied both the drivers for the delivery of the consignment from Mundra to Delhi and has also identified A-6 presence during the unloading of the Page 15 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined consignment at Alipur (Delhi) Godown on 21-22.06.2021. 13.3 Rent agreement dated 17.06.2021, of alleged property/ ware house No. 712, 713, Phirni Road, Alipur, Delhi produced by A- 6 under his statement recorded under Section 67 of NDPS Act, the said rent agreement was made between A-5 at the behest of A-6, for the storage of narcotics drugs consignment sent in the month of June-2021.
14. Disclosure memo dated 11/12/2021, drawn by NIA, under the Section 27 of the Indian Evidence Act, wherein A-6, willingly pointed out the warehouse located on Phirni Road, Alipur, New Delhi, where they unloaded the drug consignment (Talc) on 23/06/2021, and the places where A-6 had paid cash of Rs. 2.40 lakh to property dealer against rent agreement and the places from where he used to collect cash amount of Hawala, which clearly establishes that he has played an active role in the present case.
15. It is the case of the prosecution that Afghan based wanted accused Mr.Mohammad Hussain Dad @ Hussain Shah Noorzai @ Haji (WA-1) and Mohammad Hasan Shah (WA-2) brother of Hussain shah having business license in the name of "HASAN HUSAIN LTD" issued by the Islamic Republic of Afghanistan, both, President and Vice President and partner of Hasan Husain Ltd, respectively hatched a deep rooted criminal conspiracy along with Page 16 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined Afghan nationals arrested accused A-4-Mohd Khan Akhlaqi, A-6- Said M.Hussaini, A-7-Fardin Amery, A-8-Sobhan Aryanfar, A-9- Alokozai Mohd Khan @ Siaf Khan and A-10-Murtaza Hakimi, Indian nationals arrested accused A-l-Sudhakar, A-2-Vaishali, A-3- Rajkumar and A-5-Pradeep Kumar, Afghan Nationals wanted accused WA-4-Najibulla Khalid, WA-5-Honari Esmat Ullah and WA- 6-Abdul Hadi Alizada and with Iran National wanted accused WA-3- Jawad Najafi, for the smuggling of the huge quantity of narcotics drug Heroin from Afghanistan to Mundra Port, Gujarat via Abbas Bandar sea port Iran for further transportation, distribution among the drugs peddlers in Delhi, Punjab, Uttar Pradesh and other states of India.
16. That in furtherance of the conspiracy, WA-1-Mohd Hussain Dad @ Mohd Hussain Shah approached Iranian national Javad Najafi (WA-3) for arranging logistical support at Bandar Abbas port Iran for shipment of the drug consignments to India, and also for finding a person in India who could act as a consignee for such shipments and for handling the logistical work at the port of import in India. Accordingly, WA-3 approached Rajkumar Perumal (A-3) in the month of May 2021, asking for assistance at Mundra port in India, for the import, clearance and onward transportation of the consignments proposed to be sent by WA-1 & WA-2 from Afghanistan via Bandar Abbas port, Iran. The said Page 17 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined communication was done by WA-3 from his mobile number +98 9155681365 to the mobile number +91 6380479074 of A-3. Rajkumar Perumal (A-3) in turn approached Machavaram Sudhakar (A-1), who offered to act as consignee for the shipments proposed to be sent by WA-l, and provided the consignee name as M/s. Aashi Trading Company, Vijayawada wherein his wife; Govindaraju Durga Purna Vaisali (A-2) was a Proprietor. A-1 agreed to handle the work of import; customs clearance and onward transportation of the said consignments to Delhi on behalf of WA-1 for monetary consideration.
17. In furtherance of the conspiracy, A-3 created a WhatsApp group named "TALC" and added A-1 and WA-3 as its members. Subsequently, A-3 made A-1 also an 'Admin' of the said group and thereafter A-1 added WA-1 to the group, as per the request made by WA-3. The said WhatsApp group was used as a virtual place for the conspiracy meetings held by WA-1 and WA-3 with A-1 and A-3, for further planning and implementation of the plan to smuggle Narcotics substance Heroin from Afghanistan to India, through sea route from Bandar Abbas port Iran to Mundra Port, Gujarat, India, in the guise of consignments of 'Semi Processed Talc Stones'. A-1 provided WA-1 and WA-3 with details of the firm Aashi Trading Co. so that shipping documents could be accordingly prepared by WA-3 showing Hasan Hussain Ltd.
Page 18 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined
Nimroz, Afghanistan, a firm owned by WA-1 and his brother WA-2 as consignor for the shipments and Aashi Trading Co. Vijayawada, firm owned by A-2 as consignee for the shipments.
18. Investigation has further revealed that, pursuant to the discussions over WhatsApp Group "TALC", the first consignment of narcotics drug Heroin was shipped from Afghanistan to India on 02.06.2021, by WA-1 with the help of WA-3.
19. The said consignment declared as "Semi-processed Talc Stones" in 22 Bags having gross weight 24730.00 Kgs having a total value of USD6182.50 as per Invoice No.018 dated 21.05.2021, issued by M/s. Hasan Husain Ltd, No. 2, General Sarak St, Next to Customs, Kandahar, Afghanistan to M/s.Aashi Trading Company, 23-14-16, Satyanaraya Puram, Gadiyaram, Vari Street, Vijayawada-
520011, Andhra Pradesh, India, Email: [email protected], Phone: +91 9441288199, IEC-
AOTPG6030R. Terms of payment as per the said invoice is '30 days after delivery' 'and beneficiary account details provided are "A/c. Name: Hasan Hussain Ltd. A/c. No.1012512000260. Swift Code:
GHBKAFKA. Bank Name: Da Afghanistan Bank". The first consignment was shipped from Bandar Abbas Port (Iran) to Mundra Port (India) in a 20 feet container bearing No.FSCU 3838911, on vessel Gemini Voy. No.0015, covered by shipping document viz. Bill of Lading No.SHS-MUN-210065 dated 02.06.2021, issued by Sea Page 19 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined Horse Shipping, 100-C, Room No.402, 11th Street, Khayban-e-Jami Commercial, Phase 7, DHA, Karachi, Pakistan, Email:[email protected]. As per the Bill of Lading, shipper is Hasan Hussain Ltd. and consignee is Aashi Trading Company, Delivery instructions are "For Delivery Apply To: Navio Shipping Pvt. Ltd. Office No.209, 2nd Floor, Rishab Arcade, Plot No.83, Sector 8, Near GST Bhavan, and freight is pre-paid at Dubai.
20. The investigation has further revealed that, WA-1 along with WA-4, Fardin Amery (A-7), Esmat Ullah Honari (WA-5) and Pradeep Kumar (A-5) were present at the Alipur Warehouse to assist WA-1 in unloading the drugs consignment. WA-4 had arranged a Hydra crane lift and got the goods in 22 jumbo bags weighing 1000 kgs each, unloaded from the container into the warehouse, where it was stored till further transportation thereof to another rental premises for purification of the Narcotic substance Heroin, prior to its distribution and to earn huge amount of drugs proceeds for terror financing, by selling the same to the drugs peddlers and public in general.
21. The investigation has further revealed that, the A-5 had aided A-6 and WA-4 in renting the warehouse at Khasra No.712- 713, near Shivam Dharam Kanta, Alipur, Delhi. The said premises was taken on rent by the drug smuggling syndicate as per agreement between Sh.Ramdhari Singh Dhankhad as owner of the Page 20 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined premises and A-5 as its tenant, and the rental agreement was brokered by property dealer in Delhi. Entire expenses towards security deposit and rent was arranged in cash by A-6 and handed over to A-5, who deposited the cash into his own bank account and made cheque payments to the owner of the premises. The said warehouse was intentionally hired by A-6 and WA-4 with the help of A-5 for the storage of the first drugs consignment, on the instruction of WA-1. A-5 has also assisted WA-1 and other co- accused in unloading the first consignment on 23/06/2021 at Khasra No.712-713, near Shivam Dharam Kanta, Alipur, Delhi. Guest Register and KYC details obtained from G.B. Guest House, Gurugram establishes presence of WA-5 in Delhi NCR during the relevant period in June, 2021.
22. The seizure of 16.105 kgs of powdery substance by DRI Delhi Zonal Unit, as floor sweepings from the Alipur warehouse, which tested positive for Narcotic drug Heroin, clearly established the fact that the June 2021 consignment of Semi Processed Talc Stones imported in the name of Aashi Trading Co. through Mundra port and offloaded at the Alipur Warehouse on 23.06.2021 was having a huge quantity of Narcotic drug Heroin concealed in it, which was smuggled from Afghanistan to India by the drug syndicate operated by WA-1, WA-2 and their associates.
Page 21 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined
23. According to prosecution, there is also technical evidence, wherein Analysis report of the tower locations of mobile numbers 8882536262, 9873984833 used by WA-4, (Najibullah Khalid), mobile number +93 700937070 & 7065609762 used by WA-1, (Mohammad. Hasan), mobile number +91 7467059961 used by A-5 (Pradeep Kumar), mobile number +91 8585955874 & +917836915852 used by A-6 (Said M. Hussaini), mobile number +91 9999461965 used by A-7 (Fardin Amery), mobile number +93702696533 used by WA-5 (Esmat Ullah Honari), establish their presence together at Khasra No. 712-713, Main Phirni Road, Village-Alipur, Delhi for the receiving and unloading the first consignment on 23/06/2021 at the said warehouse, which was delivered by the witness driver whose mobile number 9799113849 location was also found at the same place, date and time.
24. The Court also finds that the investigation has examined many witnesses and collected many documents to prove the case against the accused persons. Digvijay Singh Rathore in his version has stated that he is manager of the firm M/s.Shyam Transways who provided drivers, vehicles (containers taken on rent from Prabhu logistic) for domestic delivery from Mundra to Delhi for the first import consignment; that he being manager of Shree Shyam Transways on the request of Jaydeep Logistics had arranged for container and truck of Shri Sadik Baig and container of Prabhu Page 22 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined Logistics for transportation of heroin laden talc stones of 1 st consignment (June '2021) of Aashi Trading Co weighing 25 Mts, and the same was delivered at Khasra No.713, near Shivam Dharma Kanta, Alipur, Delhi-36 by drivers Jafir and Irfan; that the said talc stones laden heroin consignment was delivered through Jaydeep Logistics by transferring the said goods into the empty container of Prabhu Logistics on the truck of Shri Sadik Mirza Baig Truck No.RJ-01-BG-8328; that the said heroin laden goods to contact person having mobile No.8882536262 (WA-4); that he contacted the Delhi based contact person Hamid having mobile no.8882536262 (WA-4) and confirmed the delivery address, of which he ts having voice recordings saved in his Samsung mobile phone and that the said goods were loaded on container in said truck on 20.06.2021 and delivered from Mundra to Delhi via Amer on 23.06.2021. Dev Singh in his version has stated that Said Mohd. Hussaini had received 4-5 Lakh through Hawala route from Afghanistan during July to August-2021. Statement dated 18.09.2021 of accused Said Mahmood Hussaini (A-6) recorded under Section 67 of the NDPS Act, 1985. Panchnama dated 13.12.2021 pertains to data extracted from mobile seized from A-6- Said Mahmood Khan, which clearly establishes his role in the commission of crime pertaining to association with WA-3, hiring warehouses, unloading the first narcotics drug consignment in the month of June. Analysis report of the tower locations of mobile Page 23 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined numbers 8585955874 & +917836915852 used by A-6 (Said M. Hussain' establishes his presence with other accused at Kharsa No. 712-713, Main Phirni Road, Village Alipur, Delhi for the receiving and unloading the first consignment on 23.06.2021 at the said warehouse, which was delivered by the witness' driver Irfan Baig whose' mobile number 9799113849 location was also found at the same place, date and time. Call details record/call history-between A-6 and A-5 during the period will prove their communication for hiring the warehouse on rent for the storage of the smuggled narcotics drugs heroin.
25. The sum and substance therefore of the offence committed by the present appellant He is an Afghan National and was living in Gurugram, India and was involved in the business of the drugs in the guise of an interpreter for the Afghan nationals visiting India for the medical treatment. He conspired with WA-1, WA-4, and A-5 for the arrangement of warehouse at Alipur Delhi for the safe custody of smuggled drugs. He assisted WA-1 and WA-4 in the unloading and storage of the consignment of drugs sent from Afghanistan in the Month of June 2021. He received drugs proceeds from WA-1, for the arrangement of warehouses and also paid Rs.2.80 lakh to the owner of Alipur Warehouse as a Security deposit and one month rent and Paid Rs.1.6 lakh to the owner of Gurgaon Warehouse as a Security deposit and one month rent.
Page 24 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023 NEUTRAL CITATION R/CR.A/1507/2022 ORDER DATED: 09/06/2023 undefined
26. The Court has examined the facts and finds that the provisions of the UAPA AND NDPS Acts are rightly invoked in the facts of this case. The role of the applicant thus prima facie finds involvement of the applicant. The Court has also perused the judgment and order 07.07.2022 passed by the Special Judge (NIA) in NIA-Criminal Misc.Application No.35 of 2022 and finds that the order is justified and does not warrant interference.
27. The Court has taken into consideration the gross facts of the case and sheer magnitude of the offence and the extensive consequences of the same on the society at large.
28. The appeal therefore deserves to be and is hereby dismissed.
(A.Y. KOGJE, J) (M. R. MENGDEY,J) SHITOLE Page 25 of 25 Downloaded on : Sat Sep 16 20:04:25 IST 2023