Gujarat High Court
Mamad Ibrahim Sama vs State Of Gujarat on 19 February, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL) NO. 178 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
===============================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MAMAD IBRAHIM SAMA
Versus
STATE OF GUJARAT & ANR.
================================================================
Appearance:
A S TIMBALIA(7372) for the Appellant(s) No. 1
MR. HARDIK MEHTA, APP, for the Opponent(s)/Respondent(s) No. 1
MR. DEVANG VYAS, Additional Solicitor General of India with KSHITIJ M
AMIN(7572), Standing Counsel for the Opponent(s)/Respondent(s) No. 2,
MR. JASH THAKKAR, ADVOCATE, MR. SAGAR BHANDARE, ADVOCATE
and MR. SUNDEEP SADAWARTE, ADVOCATE
===============================================================
CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 19/02/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. The appeal is filed by the appellant under Section 21 of the National Investigating Agency Act, 2008 for the offences Page 1 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined punishable under Sections 8(C), 21(C), 24, 25, 27(A) and 29 of the NDPS Act and under Sections 17 and 18 of the Unlawful Activities (Prevention) Act for following reliefs:-
(A) This Hon'ble Court may be pleased to quashed and set aside the order passed by the Special City Civil and Sessions Court (Special Court of N.I.A.) at Ahmedabad Criminal Miscellaneous Application No.70 of 2022 on 04.10.2022 and further grant regular bail to the appellant in connection with F.I.R. I-RC No./26/2020/N.I.A./D.L.I. registered before N.I.A, Dist: Delhi Police Station N.I.A. Head Quarter New Delhi."
2. Learned Advocate for the appellant has submitted that the first informant has registered the F.I.R. by C.R.No.RC No.26/2020/ N.I.A./D.L.I. before N.I.A. District: Delhi Police Station N.I.A. Head Quarter New Delhi for offenses punishable under Sections 8(C), 21(C), 24, 25, 27(A) and 29 of the NDPS Act and Sections 17 and 18 of Un-lawful Activities (Prevention) Act on 02.07.2020. It is submitted that the above mentioned FIR has registered as Government of India has transferred the investigation of offense registered as C.R.No.01 of 2018 registered before ATS Police Station, Gujarat under Sections 8(C), 21(C), 24, 25, 27(A) and 29 of the NDPS Act.
2.1 Learned advocate submitted that almost after four years, the appellant has been joined as an accused No.13 and came to be arrested on 23.02.2022. That, on 23.01.2019, concerned investigating agency has thoroughly investigated the offense registered by A.T.S. Police and filed the charge-sheet before concerned Court, where there is no whisper about the role of appellant further, the appellant has neither shown as an accused nor as an absconder. It is submitted that as per the charge-sheet, role of the appellant has been shown as that his boat was booked to Page 2 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined transfer the contraband.
2.2 Learned advocate submitted that the appellant is small time fisher man and he was never aware that in past, he has transferred any kind of prohibited contraband, but he came to be implicated only on the basis of co-accused statement. It is submitted that the police has also recovered the boat of the appellant, but nothing suspicious substance has been found from it.
3. As against this, Mr. Devang Vyas, learned Additional Solicitor General of India with Mr.Kshitij Amin, learned Standing Counsel for respondent No.2-NIA submitted that NIA filed a supplementary charge-sheet vide No.02/2020 dated 7-8-2020 in Special Court Ahmedabad against accused persons Aziz Abdul Bhagad, Rafik Adam Sumra, Nazir Ahmed, Arshad Sota, Manzoor Ahmed accused, Razak Adam Sumra, Karim Md. Siraj and Sunil Vithal Barmase-accused Nos.1 to 8. under the provision of Sec. 120B of IPC, Sec. 21 (c) r/w 8(c), 25, 27(A) & 29 of NDPS Act and Sec.17 and 18 of the Unlawful Activities (Prevention) Act. During the course f further investigation, the NIA has also filed charge sheet against (1) Indresh Nishad-accused No.9, Gujarat based accused, who transported 200 kgs of heroin from Gandhidham, Gujarat to Amritsar, Punjab (2) Sukhbir Singh-accused No.10, Punjab based accused who had received 200 kgs heroin, from Indresh Rambachan Nishad-accused No.9 in Punjab and (3) Shahim Kasam Sumra-accused No.11 who was deported from UAE (Gujarat based accused who had received 500 kg drugs from Aziz Abdul Bhagad, Rafik Adam Sumra, Nazir Ahmed, Arshad Sota, Manzoor Ahmed accused, Razak Adam Sumra, Karim Md. Siraj and Sunil Vithal Barmase, Indresh Rambachan Nishad, Sukhbir Singh @ Page 3 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined Happy, Shahid Kasam Sumra, Basheer Dawood Kungda No.12 and present-appellant accused Nos.1 to 13 at at Mandvi SeaShore Kutch and continuing the investigation under the provisions of Section 173(8) of Cr. P.C. and wanted accussed Basheer Daue a Kungda and Mamad Ibrahim sama (present appellant accused had been shown as Wanted accused persons.
3.1 It is submitted that that NIA investigation revealed that while in a second trip somewhere in May 2018, Basher Daud - Kungda- accused No.12 roped in accused Mamad Ibrahim Sama-accused No.13, (present appellant accused) in lieu of monetary consideration and both had gone to Mid-sea in vessel and received total 400 kgs of narcotics drugs heroin from Pakistan boat and further delivered the same to Rafik Adam Sumra-accused No.2 and Shahid Kasam Sumra-accused No.11 at Seacost of Mandi, Gujarat for further delivery in Punjab. He has further submitted that both the accused persons Basheer Daud Kungda-accused No.12 and present appellant-accused Mamad brahim Sama-appellant-accused No.13 were absconding since commission of crime.
4. Heard learned advocates for the parties and perused the documents placed on record. It appears that the present appellant is accused No.13 in this case. It appears that the appellant is in custody since 23.02.2022.
4.1. On perusal of the record, it appears that during the investigation. 500 kgs of narcotics drug was delivered by Pakistani vessel to the Indian vessel of Aziz Abdul Bhagad-accused No.1 and Mamad Ibrahim Sama-appellant-accused No.13 in Indian territorial water which was further delivered to Shahid - Kasam Sumra- accused No.11 and Rafik Adam Sumra-accused No.2. NIA Page 4 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined investigation revealed that while in a second trip somewhere in May 2018, Basheer Daud Kungda-accused No.12 roped in accused Mamad Ibrahim Sama-accused No.13 (present. appellant accused) for monetary consideration and both had gone to Mid-sea in vessel and received total 400 kgs of narcotics drugs heroin from Pakistan boat and further delivered the same to Rafik Adam Sumra-accused No.2 and Shahid Kasam Sumra-accused No.11 at Sea-coast of Mandvi, Gujarat for further delivery in Punjab. He conspired with Basheer Daud Kungda-accused No.12 and he himself had taken the deliver of 400 kgs of drugs/heroin from Pakistani Vessel into his Vessel "Al Madina" for further delivery to Adam Sumra-accused No.2 and Shahid Kasam Sumra-accused No.11 at Mandvi Sea Shore, Gujarat and the Vessel/board used by the appellant accused is seized by the NIA. It also reveals from the investigation that the present appellant has received Rs.8 lacs from a Basheer Daud Kungda-accused No.12 for assisting him in taking delivery of 400 kgs narcotics drugs from Pakistan to Gujarat.
5. The case of the investigation discloses the fact that the case was registered by ATS Police Station, Ahmedabad, Gujarat vide Crime number 01/2018 under sections 8(c), 21(c), 24, 25, 27(A) and 29 of NDPS Act. The offences initially pertains to a criminal conspiracy by arrested accused namely Aziz Abdul Bhagad, Rafik Adam Sumra, Nazir Ahmed, Arshad Sota, Manzoor Ahmed, Razak Adam Sumra, Karim Md. Siraj and Sunil Vithal Barmase-accused Nos.1 to 8 and wanted accused WA-1 to WA-5 of smuggling and distribution of 500 Kg of illegal narcotic drugs (heroin) from Pakistan to Gujarat, India by sea route. The 500 Kg of narcotic drugs (Heroin) were brought into Gujarat, India by Aziz Bhagad-accused No.1 and Mamad Ibrahim Sama-appellant/accused No.13 on the directions of Page 5 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined Basheer Dawood Kungda-accused No.12.
5.1 The illegal narcotic drug (Heroin) was brought by Pakistani nationals in a Pakistani fishing vessel and was delivered in the Indian territorial waters approximately 7-8 miles from Jakhau Port, Kutch, Gujarat, into an Indian vessel named ."Nagani Mustafa" of Aziz Abdul Bhagad-accused No.1 and "AlMadina" of Mamad Ibrahim Sama- appellant/accused No.13. The drug was delivered to Indian vessels twice during the period from 09.03.2018 to 31.05.2018. After completion of investigation ATS/Gujarat filed a charge sheet against Aziz Abdul Bhagad, Rafik Adam Sumra, Nazir Ahmed, Arshad Sota and Manzoor Ahmed, accused Nos.1 to 5 in the Special NDPS Court, Jam-Khambaliya, Gujarat, on 23.01.2019. The ATS, further, arrested three more accused persons on 10.02.2020 including the accused No.8 who were involved in the case.
6. That the Ministry of Home Affairs, Government of India, due to the gravity of the offenses with national and international ramifications, issued orders in the exercise of powers conferred under sub-section (5) of Section 6 read with Section 8 of National Investigation Agency Act, 2008 vide Ministry of Home Affairs, CTRC Division, North Block, New Delhi F.No.11011/44/2020/NIA dated 29.06.2020. In connection with the order of MHA, NIA registered the case as RC-26/2020/NIA/DLI dated 02.07.2020.
7. Subsequently NIA took over the investigation. The NIA after investigation, filed a supplementary Charge Sheet vide No. 02/2020 dated 07/08/2020 in the Spl. Court, Ahmedabad against accused persons Aziz Abdul Bhagad, Rafik Adam Sumra, Nazir Ahmed, Arshad Sota, Manzoor Ahmed, Razak Adam Sumra, Karim Md. Siraj Page 6 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined and Sunil Vithal Barmase-accused Nos.1 to 8 under the provisions of Section 120 B of IPC, Section 21(c) r/w 8(c), 25, 27(A) 8 29 of Narcotic Drug and Psychotropic Substances (NDPS) Act & Sections 17 & 18 of the Unlawful Activities (Prevention) Act and continuing the investigation under the provision of section 173 (8) of Cr. P.C.
8. During the course of the investigation, NIA took over the custody of accused Indresh S/o Rambachan Nishad-accused No.9 from NIA Special Court after being produced by the jail authorities of Amritsar on a production warrant issued by this Court. During the course of the investigation, it is revealed that 500 Kgs of narcotics drug was delivered by Pakistani vessel. to the Indian vessel of Aziz Abdul Bhagad-accused No.1 and Mamad Ibrahim Sama- appellant/accused No.13 in Indian territorial water which was further delivered to Shahid Kasam Sumra-accused No.11 and Rafik Adam Sumra-accused No.2. 295 Kgs of the narcotic drugs were handed over by Shahid Kasam Sumra-acccused No.11 and Rafik Adam Sumra-accused No.2 to Nazir Ahmad-accused No.3, Manzoor Ahmad-accused No.5 and Simranjit Singh Sandhu-wanted accused No.2 who then concealed the same in the sacks of Cumin and Suva seeds, and transported the same to Amritsar, Punjab, through Akshar Transport, 200 kg of narcotic drugs out of the 500 Kgs of narcotic drug heroin was buried and concealed by Rafik Adam Sumra-accused No.2, Shahid Kasam Sumra-accused No.11 and Razak Adam Sumra-accused No.6 in the farm of Adam Sumra- accused No.2 & Razak Adam Sumra, in Village Bag. This remaining consignment was also to be delivered to Amritsar, Punjab as per the conspiracy plan. So for further delivery of the balance of 200 kg narcotic drugs (heroin), Shahid Kasam Sumra-acccused No.11 contacted Razak Adam Sumra-accused No.6 {who is the brother of Page 7 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined Rafik Adam Sumra-accused No.2} and accused Karim Md. Siraj- accused No.7 conspired for the delivery of the remaining 200 kg narcotic drugs (heroin) from Gujarat to Amritsar, Punjab to which Razak Adam Sumra-accused No.6 and Karim Md. Siraj-accused No.7 agreed for of monetary consideration.
9. Investigation has also revealed that, the accused Karim Md. Siraj-accused No.7 accepted the offer of Shahid Kasam Sumra- accused No.11 and he persuaded his friend accused-Sunil Vithal Barmase (A-8)to help him in the conspiracy. Thereafter Karim Md.Siraj (A-7) and Sunil Vithal Barmase (A-8) also attended a conspiracy meeting with Shahid Kasam Sumra (A-11) at Mira Road near Mumbai. Subsequently, Karim Md. Siraj (A-7) and Sunil Vithal Barmase-accused (A-8) contacted driver Indresh Rambachan Nishad (A-9) for onward delivery of 200 kg narcotic drugs (Heroin) to Amritsar, Punjab by offering Rs. 2 lakh to driver Indresh Nishad (A9) to which Driver Indresh Nishad accepted.Investigation has also revealed that, in furtherance of the conspiracy hatched among accused Karim Md. Siraj (A-7), accused-Sunil Vithal Barmase (A-8) and Indresh Rambachan Nishad (A-9), the accused-Sunil Vithal Barmase arranged GPS System of LOCONAV Company and got it installed in the truck of Indresh (A-9) bearing registration NO. GJ- 12-BW-2323, for tracking the truck en-route from Gandhidham to Amritsar Punjab for safe delivery of the consignment in Punjab. It is further revealed that, Sunil Vithal Barmase (A-8) had also given one mobile to Indresh Nishde (A-9) with SIM and instructed Indresh Rambachan Nishad (A9) not to call from his mobile and that Indresh Rambachan Nishad (A9) will receive calls from Punjab on the way from unknown.
Page 8 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined
10. The accused-Sunil Vithal Barmase (A8) also gave Indresh Rambachan Nishad (A9) Rs.30,000/- cash during the departure from Gadhidham, Gujarat to Punjab. The accused Sunil Vithal Barmase (A8) had also arranged new tyres V/Rs.50,000/- for the truck and had also paid pending dues of the truck i.e. Rs, 20,000/- of various state taxes in respect of truck bearing registration No. GJ 12 BW 2323, owned by Indresh Rambachan Nishad (A9). Then, as per the conspiracy and on directions of Shahid Kasam Sumra (A-
11), Razak Adam Sumra (A-6) dug out the remaining 200 Kg narcotic drugs (Heroin) and kept it in his Swift Dzire car, 'bearing registration no. GJ-12-BR-4334 and delivered it to one white coloured car near a Petrol Pump on Talwada Road which belonged to the accused Karim Md. Siraj (A-7). Then the accused Karim Md. Siraj (A-7) & accused-Sunil Vithal Barmase (A-8) shifted the drugs to a Skoda car and took 200 kg narcotic drugs (Heroin) to Gandhidham, then loaded and concealed it between the wooden panels in the truck of No. GJ 12 BW 2323 of accused Indresh Nishad (A-9) for further delivery to Amritsar, Punjab.
11. That, Indresh Nishad (A-9), had taken the order from M.K. Transport, Gandhidham, Gujarat for delivery/transportation of wooden Panels from Gandhidham, Gujarat to Jammu in his truck bearing registration no. GJ 12 BW 2323 and Amritsar, Punjab, where the consignment to be delivered, comes in the way of Gandhidham to Jammu, therefore accused Indresh Nishad (A-9) accepted the offer of Karim Md. Siraj (A-7) & accused Sunil Vithal Barmase (A-8) for delivering the consignment to Amritsar, Punjab in his own truck. The documents/ records as produced by the owner of Shingla Timbers, Pvt Ltd, Gandhidham, Gujarat, has clearly established that, the accused Indresh S/o Rambachan Page 9 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined Nishad (A-9) had taken the order by M. K. Transport for delivery of wooden Panel in Jammu and he himself, on 31/12/2019, visited Shingla Timbers, Pvt. Ltd, located in Gandhidham and loaded the wooden Panel in his truck No. GJ 12 BW 2323 and then took the truck to Gandhidham Industrial area and taken the consignment from the accused Sunil Vithal Barmase (A-8) & Karim Md. Siraj (A-
7), then concealed the drug consignment between the wooden panels to avoid detection. The delivery of the 200 kg narcotic drugs (heroin) consignment of, which was managed by Shahid Kasam Sumra (A-11) through Razak Adam Sumra (A-6), Karim Md. Siraj (A-7), accused Sunil Vithal Barmase (A-8), & Indresh Rambachan Nishad (A-9), was transported to Amritsar, 'Punjab, in the truck of accused Indresh Rambachan Nishad (A-9) and it has been later revealed that accused Sukhbir Singh @ Happy was arrested by ' STF/Amritsar while he was found in possession of narcotic drugs heroin and a case vide FIR 20/2020 was registered on 29.01.2020. Further 189 Kg of narcotic drug heroin out of the 200 Kg consignment was seized by STF/Amritsar, Punjab from a Kothi situated at Sultanwind, Amritsar, and a case has been registered vide FIR No. 23/2020 dated 31/01/2020 under the provisions of NDPS Act. The truck bearing registration No. GJ-12-BW-2323 belonging to the accused Indresh Rambachan Nishad (A-9) was seized and the accused Suni Vithal Barmase along with 17 other accused persons have been arrested in the said case by STF /Amnitsar. Further the mobile Samsung SM B-350E having SIM no. 7878727784 and mobile of Vivo Company, Model No. 1725, SIM no. 9879787784 of the accused Sunil Vithal Barmase (A-8) was seized under Panchanama dated 10/2/2020. Both the numbers were used by the accused Sunil Vithal Barmase (A-8) for the communication with his accomplices Shahid Kasam Sumra, A-11, A-
Page 10 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined Razak Adam Sumra (A6) and Karim Md. Siraj (A7). The discussion is mainly pertaining to the delivery of remaining 200 kg of narcotic drug Heroin and for collecting funds generated from this illegally smuggled narcotic drugs. The vehicle number GJ-12-CD-5356 Ford Figo which was used by the accused Sunil Vithal Barmase (A-8) for the escorting of vehicle of accused Karim Md. Siraj A-7 for taking the delivery of 200 kg Heroin from Razak Adam Sumra A-6 has been recovered under the seizure Panchnama dated 16/2/2020 and it has been established from the RTO records that the accused Sunil Vithal Barmase (A-8) is the owner of the said vehicle.
12. The vehicle number GJ-12-BF-6337 Skoda which was taken by accused Sunil Vithal Barmase (A-8) from the house of Karim Md. Siraj A-7 and transferred the 200 kg Heroin from the vehicle number GJ-12-DM-1948 to vehiclenumber GJ-12-BF-6337 belonging to Karim Md. Siraj A-7 has been recovered under the seizure Panchnama dated 16/2/2020. It has been established from the records of RTO that accused Karim Md. Siraj (A-7) is the owner of said vehicle. The investigation has revealed that the accused Sunil Vithal Barmase (A8) and accused Karim Md.Siraj A-7 had received advance payment of Rs. 11 lakhs from Shahid Kasam Sumfa (A-11) and later Rs. 06 lakhs, total Rs. 17 lakhs for taking delivery of 200 kg Heroin and for its onward transportation to Amritsar, Punjab which clearly established that they were raising the funds through illegitimate sources. This fact has been ascertained through the statement of witness of NR & Company, V. Patel Angadia, Kutch, and R. M.Angadia, Ahmedabad and through the receipts produced by the witnesses. The NIA on 24.05.2021, filed a supplementary charge-sheet against the present accused Sunil Vithal Barmase (A-
8) in the Spl. NIA, Court, Ahmedabad under Section 120 B of IPC, Page 11 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined Section 21(c) r/w 8(c), 25, & 29 of Narcotic Drug and Psychotropic Substances (NDPS) Act and Sections 17 & 18 of the UA(P) Act and further investigation of the case is continued as per the Provision of section 173 (8) Cr. P.C. STF / Amritsar during their investigations arrested (1) Arman Bassar Mall, (2) Sukhwinder Singh @ Sukh, (3) Major Singh, (4). Miss Tamanna Gupta, (5) Mantej Singh @ Mantej Mann @ Micky, (6) Sahil Sharma, (7) Harminder Singh Randhawa @ Romi, (8) Manjit Singh @ Manna, (9) Arjun Atwal, (10) Anwar Masih, (11) Gagandeep Singh, (12) Ankush Kapoor (13) Hanitpal Singh @ Honey and (14) Sukhbir Singh @ Happy along with (15) Razak Adam Sumra (A-6), (16) Karim Md.Siraj (A-7), (17) Sunil Vithal Barmase (A-8) & (18) Indresh Rambachan Nishad (A-9).
13. The accused persons who were arrested by STF/Amritsar in their FIR 20/2020 & FIR 23/2020 were found to 'be involved in this instant case. In continuance of the above said order No.11011/44/2020/NIA dated 29.06.2020 which directed the NIA to investigate FIR.No.01/2018 of ATS Gujarat has further, vide its Order No. 11011/44/2020/NIA, dated 28.06.2021 directed the NIA to investigate in respect of FIR No.23/2020 dated 31.01.2020 of STF/Amritsar being a connected offence as per the provisions of Section 8 of the National Investigation Act, 2008. That it is further submitted that on receipt of the order No.11011/44/2020/NIA dated 29.06.2020 issued by MHA, STF/Amritsar informed that they have also registered an FIR 20/2020/STF (Border Range)/Amritsar which is a connected offence of FIR 23 /2020. Hence the said proposal was forwarded by NIA to Ministry of Home Affairs for consideration. That further, in continuation 6f the order No.11011/44/2020/NIA dated 29.06.2020 and 28.06.2021 which directed the NIA to investigate FIR.No.01/2018 of ATS Gujarat, and Page 12 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined to investigate FIR No.23/2020 dated 31.01.2020 of STF/Amritsar being a connected offence, has further, directed the NIA vide order No.1011/44/2020/NIA dated 13.10.2021 to also investigate FIR No.20/ 2020 of STF/Amritsar being a connected offence as per the provisions of Section 8 of the National Investigation Act, 2008.
13.1 On receipt of the MHA orders, an application was filed in the Hon'ble NDPS Spl. Court at Ariritsar by NIA on 29.09.2021 for transferring the original case documents/articles from NDPS Spl. Court, Amritsar to NIA Spl. Court, Ahmedabad. The NDPS Court, Amritsar rejected the plea filed by NIA for transferring the case from NDPS Spl. Court, Amritsar, Punjab to NIA Spl. Court, Ahmedabad, Gujarat, citing the reason that the said Court does not have the power to transfer the case from one State to another. Hence, SLP in the Hon'ble Supreme Court of India has been initiated by NIA and is pending. The apex court has passed an order dated 10.01.2024 in Transfer Petition (s) No(S). 487-488 of 2023 that the pendency of SLP will not come in way of hearing of present appeal.
14. The role played by the appellant herein as per the prosecution is that he conspired with Basheer Kungda (A12) in receiving of 400 Kg of drugs from Pakistan Vessel. He accompanied Basheer Kungda (A12) and taken the delivery of 400 Kgs of narcotic drugs from Pakistant vessel and delivered to Rafik Adam Sumra (A2) and Shahid Kasam Sumra (A11) in Mandvi, Kutch. He received Rs. 8 lakhs from Rafik Adam Sumra (A2) for the smuggling of drugs.
15. The aforesaid role played is supported by the evidence in the form of statement of secret witnesses, documentary evidence like Panchnamas drawn and the scientific evidence through Call Detail Page 13 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined Records and FSL report.
16. The Court has heard the groups of appeals arising out of same crime hence the Ld advocates for respective Appellants were heard on facts however , joint arguments are made by both the sides regarding invoking UAPA as well as the twin test under Section 37 of the NDPS Act.
16.1 According to the appellants-accused there is no justification in invoking UAPA in view of the role played individually like a driver of the vehicle would not be aware of the contents of the goods stored on his vehicle, or the owner of premises having rented the same will not be aware of the day to day activities in the premises. Whereas the investigating agency has taken a stand that it was an organized crime where each individual was given a role to play to achieve common object and that each one was aware of the involvement of high quantity of narcotics contraband and have in fact benefited monetarily out of their respective roles.
17. Both the parties have cited various orders of High Courts and decisions of Apex Court which would require reference and discretion.
17.1 Much reliance is placed by the appellants on decision dated 05.07.2021 by High Court of Punjab and Haryana in case of co- accused Ankush Kapoor who was granted bail in CRM-M-23889 of 2021. However, it will be pertinent to observe that the same was passed when the investigation was that of S.T.F. Punjab Police which was later taken over by the NIA. The NIA then preferred an application being CRM. M 24743 of 2023, before the Punjab and Haryana High Court for cancelling the bail of the very accused and the Punjab and Haryana High Court vide its order dated Page 14 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined 20.01.2024 has cancelled the bail of the accused Ankush Kapoor.
18. Reliance is placed on the judgment of the Apex Court in case of Union of India v/s. K.A.Najeeb, reported in (2021) 3 SCC 712 to argue the invoking of U.A.P.A. and the special provisions therein will not curtail jurisdiction of the constitutional Court. There cannot be any quarrel with such propositions however, in para-15 of the aforesaid judgment, the Apex Court has observed a special fact of the said case where accused was in custody for five years and that the co-accused who were tried and convicted were handed sentence of eight years rigorous imprisonment.
19. The appellant has relied upon two orders passed by Hon'ble Supreme Court where the Apex Court has allowed the applications therein. However, in order passed in case of Rabi Prakash v/s. State of Odisha, reported in 2023 SCC Online SC 1109, the facts were that the applicant was an occupant of the truck which was carrying the contraband, whereas in case of Angela Harish Sontakke v/s. State of Maharashtra, reported in, Manu/SC/0685/2016 the applicant was a lady accused.
20. In case of Mohd. Muslim v/s. State (NCT of Delhi), reported in, MANU/SC/0320/2023, the Apex Court explained the purport of Section 37 and its application by Constitutional Court. The Apex Court had considered favourably the bail application, but also had facts that the accused was 23 years age, there was no recovery of contraband (ganja) from him and had suffered incarceration of seven years already.
21. Lastly, in recent decision of the Apex Court in case of Gurwinder Singh v/s. State of Pujab and Another, in Criminal Appeal No.704 of 2024, the Apex Court has extensively dealt with Page 15 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined the issue of bail under Section 43D of the UAPA after referring to the very provision has explained in paras-21 and 21 as under:-
"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'."
22. Thereafter, the Apex Court proceeded to refer to the decision of Watali's case as under:-
"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 Page 16 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined binding precedents.
In this regard, we need to look no further than Watali's case which has laid down elaborate guidelines on the approach that Courts must partake in, in their application of the bail limitations under the UAP Act. On a perusal of paragraphs 23 to 29 and 32, the following 8-point propositions emerge and they are summarised as follows:
● Meaning of 'Prima facie true' [para 23]: On the face of it, the materials must show the complicity of the accused in commission of the offence. The materials/evidence must be good and sufficient to establish a given fact or chain of facts constituting the stated offence, unless rebutted or contradicted by other evidence.
● Degree of Satisfaction at Pre-Chargesheet, Post Chargesheet and Post- Charges-Compared [para 23]: Once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive 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 chargesheet (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 Page 17 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024 NEUTRAL CITATION R/CR.A/178/2023 JUDGMENT DATED: 19/02/2024 undefined 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.
● 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."
23. The Court has perused the order passed by the Special Judge, NIA in NIA Criminal Misc. Application No.70 of 2022 dated 04.10.2022 in case of the appellant. The Special Court has assigned proper reasons by assigning the role played by the appellant and nature of evidence available on record. The same is discussed in para-7 of the order.
24. As discussed above, the offense is of very serious in nature and the extent of the offence running from across border to the State of Punjab. It is definitely not a work of an individual, but handy work of an organized crime where the role of each of the accused has been defined. The prosecution is therefore, justified in invoking the provisions of NIA and UAPA for the purpose of investigation and as discussed above, the facts of the case would reveal that the facts would not stand the twin test of Section 37 of the NDPS Act.
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25. In view of the pronouncement of the Apex Court in case of Gurwinder Singh (supra)and also having discussed the nature of offense having serious effect on the society, which is a result of an organized network and the role of each 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.
(A.Y. KOGJE, J) (SAMIR J. DAVE,J) SIDDHARTH Page 19 of 19 Downloaded on : Fri Mar 01 21:32:18 IST 2024