Gujarat High Court
Rajkumar Perumal S/O. Perumal vs Union Of India on 9 June, 2023
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
R/CR.A/2477/2022 ORDER DATED: 09/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2477 of 2022
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RAJKUMAR PERUMAL S/O. PERUMAL
Versus
UNION OF INDIA
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Appearance:
MR PRADEEP JAYRAM with MS HEMALI R PANDYA(7773) and MR ANKIT
V DIXIT(10019) for the Appellant(s) No. 1
MR DEVANG VYAS, ASG assisted by MR KSHITIJ M AMIN(7572) for the
Opponent(s)/Respondent(s) No. 1
MS KRINA CALLA, APP for the Opponent(s)/Respondent(s) No. 3
RULE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 09/06/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. In all, hearing of 6 applications is conducted where Advocates for each of the 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) That this Hon'ble Court may be pleased to Page 1 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined enlarge the Appellant forthwith on bail in connection with F.I.R. No.RC-26/2021/NIA/DLI on the file of the 2nd Respondent."
3. The appellant is attributed with the role that he was an active operator connected to firm M/s Aashi Trading Company) and was the consignee of the freight (consignment) of 2988. 21 kgs of narcotics substance (heroine) sent from Afghanistan to Mundra, Gujarat, in the guise of Semi-processed Talc Stones. He facilitated the Afghan National accused consignor by way of Import export code (IEC), Customer Clearance and logistic support hired from Gandhidham, Gujarat for the safe landing and transportation of the consignment in the guise of talc powder at Mundra Port, Gujarat and also arranged custom clearance and Logistic for further movement and delivery of drugs. He has Received Drug proceeds. The arrangements for customs clearance of the said consignment at Mundra port and subsequent transportation thereof from Mundra port to the warehouse at Alipur Delhi was organized by A- 1, as per the directions of an Afghan national Mohammad Hussain Dad (WA-1) owner of the Afghanistan based supplying firm Hasan Hussain Ltd.; that A-1 was introduced to WA-1 by Rajkumar Perumal (A-3). WA-3-Jawad Najafi 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 Page 2 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined Afghanistan via Bandar Abbas port, Iran. The said communication was done by WA-3 from his mobile number +98 9155681365 to the mobile number +91 6380479074 of A-3. The present appellant in turn approached Machavaram Sudhakar (A-1), who offered to act as consignee for the shipments proposed to be sent by WA-1 and provided the consignee's name as M/s Aashi Trading Company, Vijayawada wherein his wife Govindaraju Durga Purna Vaisali (A-2) was a Proprietor. The analysis report of WhatsApp group "Talc" created by A-3 (Rajkumar P.) by his mobile number +91 6380479074, during the month of June,2021, joined by A-1 (M. Sudhakar) having mobile no. +91 9345375902, 9441288199, WA-1 (Mohammad Husain Shah) having mobile No. +93 700937070 and WA-3 (Javad) having mobile no. +98 9155681365, will establish the communication among the accused persons, sharing of documents to each other, preparation and implementation of the conspiracy for the smuggling of huge quantity of narcotics drugs from Afghan to Mundra, Gujarat.
4. 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. 4.1 It is submitted that The Appellant is a highly educated, law abiding, a common citizen of India hailing from a respectable family, having deep social and economic roots in the country. It is Page 3 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined submitted that the Appellant had no commercial interest in the entire crime.
4.2 It is submitted that the Appellant never discussed with Mr. Sudhakar Machavaram (A-1), either over phone or WhatsApp Chat, about the buyer. It is submitted that the appellant did not ask any commission from Mr. Sudhakar Machavaram (A-1) or Mr. Javid Najafi (WA-3) for the whole deal and that he just referred Mr. Sudhakar Machavaram (A-1) to Mr. Javid Najafi (WA-3) as Mr. Sudhakar Machavaram (A-1) was looking for some export import business opportunities.
4.3 It is submitted that Investigation by both the central investigating agencies, DRI and NIA, did not reveal any monetary gain made by the Appellant in this crime. It is submitted that the entire bank account details of the Appellant and his family members were thoroughly verified for any unlawful payments; however, nothing was unearthed.
4.4 It is submitted that though hawala transactions worth more than 78 Crores were identified by DRI and 2nd Respondent herein, there is nothing on record to show that a single rupee was paid to the Appellant in cash or kind or through hawala channels. 4.5 It is submitted that the Investigation authorities did not find any movable or immovable property acquired in the name of Page 4 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined the Appellant or his family members illegally or through any unknown source. The appellant was also not radicalized to engage in "Narco Terror" related activities against India. 4.6 It is submitted that the appellant was only guiding Mr.Sudhakar Machavaram (A-1), as a friend/well-wisher, on standard customs clearance/import/banking procedures and was not rendering any ill advice to evade or bypass the scrutiny of consignment by customs or any other regulatory agencies. The appellant did not advise Mr. Sudhakar Machavaram (A-1) about selection of any particular Customs House Agent (CHA). 4.7 It is submitted that the appellant did not influence any customs officials and did not interfere in any customs clearance process. When the first consignment covered by Bill of entry No.4256146 dated 09.06.2021 was subjected to scrutiny by the customs officials on 17.06.2021, by taking samples, the Appellant did not influence the customs officers. The statement of Mr.Kailash Kumar Raipuria (Superintendent of Customs Dock Examination) (LW-82) and Mr. Naveen Kumar (Preventive Officer of Customs) (LW-84) in their statement dated 07.03.2022 and 09.03.2022 respectively, have categorically stated that they did not receive any request from any person to clear the goods without any examination.
Page 5 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined 4.8 It is submitted that the Investigation has revealed that
Mr. Najibullah Khan Khalid @ Ustad Khalid @ Pehelwan (WA-4) was once arrested by Punjab Police in the month of July, 2021 from Sanik Farm area, Delhi, after the Narcotic drugs (part of the 1st consignment covered by Bill of entry No. 4256146 dated 09.06.2021) were found in the farm house rented by Mr. Najibullah Khan Khalid (WA-4). This news was also widely published in all leading national newspapers. Had the Appellant been part of the crime or been part of the conspiracy, or known to Mr. Najibullah Khan Khalid (WA-4) or Mr. Mohammad Hussain Dad @ Hussain Shah Noozai (WA-1), the Appellant would have tried to flee and abscond.
4.9 It is submitted that the first official tip-off regarding suspected Narcotic Drugs being concealed inside the 2nd consignment (covered under bill of entry No. 5408652, dated 11.09.202) was received by DRI authorities only on 13.09.2021 and the consignment was raided and tested by DRI officials only on 14.09.2021 (vide Panchana Proceedings dated 14.09.2021 at Customs Freight Station (CFS) of M/s. T.G. Terminals Pvt. Ltd.); whereas, the Investigation has revealed that Mr. Najibullah Khan Khalid @ Ustad Khalid @ Pehelwan (WA-4) had escaped/left from India along with his entire family around 12th September, 2021 itself. As per 2nd Respondent, Mr. Najibullah Khan Khalid @ Ustad Page 6 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined Khalid @ Pehelwan (WA-4) fled India on 12.08.2021, subsequent to the raid of a bungalow by Punjab Police and arrest of four Afghan nationals on 05.07.2021. Nevertheless, had the Appellant been part of the crime or been part of the conspiracy, or known to Mr. Najibullah Khan Khalid (WA-4) or Mr. Mohammad Hussain Dad @ Hussain Shah Noorzai @ Haji (WA-1), the Appellant would have got information about the upcoming danger and the Appellant would have tried to flee and abscond.
4.10 It is submitted that even before the consignment was raided and tested by DRI officials on 14.09.2021 (vide Panchana Proceedings dated 14.09.2021 at Customs: Freight Station (CFS) of M/s. T.G. Terminals Pvt. Ltd.); the real members of the drug cartel were already aware that they are in big problem and had taken all types of proactive steps to delete all WhatsApp chat communications & photographs related to the business activities, vacate the Godown, and escape. Mr. Najibullah Khan Khalid @ Ustad Khalid @ Pehelwan (WA-4) had escaped/left from India along with his entire family around 12th September, 2021 itself. As per 2nd Respondent, Mr. Najibullah Khan Khalid @ Ustad Khalid @ Pehelwan (WA-4) fled India on 12.08.2021, subsequent to the raid of a bungalow by Punjab Police and arrest of four Afghan nationals on 05.07.2021. Nevertheless, had the Appellant been part of the crime or been part of the conspiracy, or known to Mr. Najibullah Page 7 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined Khan Khalid (WA-4) or Mr.Mohammad Hussain Dad @ Hussain Shah Noorzai @ Haji (WA-1), the Appellant would have got information about the upcoming danger and the Appellant would have deleted his phone records and communications and tried to flee and abscond.
4.11 It is submitted that there is absence of Mens Rea to commit crime. It is submitted that the real members of the drug cartel,-with a plan to conceal their real identity, were all either using the mobile numbers obtained using fake IDs or mobile numbers registered on third parties. The appellant on the other hand used his regular sim and mobile numbers to communicate and was only sharing his expertise in the "TALC" group as per the standard operating procedures of customs clearance in a legal and honest way, without knowing the trap and that the Narcotic drugs are concealed in the consignments.
4.12 It is submitted that Mr.Najibullah Khan Khalid @ Ustad Khalid @ Pehelwan (WA-4) had given fictitious name, Kuldeep Singh to Mr. Sudhakar Machavaram (A-1) for billing and was coordinating with Mr. Sudhakar Machavaram (A-1) as Mr. Amit (Fictitious name) to conceal his real identity. Later the investigation has revealed that the mobile number 8882536262 was used by Mr. Najibullah Khan Khalid (WA-4) and the registered in the name of one Mr. Ramkisan Verma. Had the Appellant been Page 8 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined part of the crime or been part of the conspiracy and known to Mr. Najibullah Khan Khalid (WA-4), he (Mr. Najibullah Khan Khalid) would not have hidden his identity and real name from the Appellant and Mr. Sudhakar Machavaram (A-1). 4.13 It is submitted that the appellant never spoke or met with Mr. Mohammad Hussain Dad @ Hussain Shah Noorzai @ Haji (WA1) or Mr. Najibullah Khan Khalid @ Ustad Khalid @ Pehelwan (WA-4),who were the main handlers of the Narcotic Drugs in Afghanistan and India, even though they were very much physically present in India when the first consignment was unloaded in a Godown located at Khasra No. 712 and 713, Main Phirni Road, Near Shivam Dharm Kanta, Alipur, Delhi - 110036. The Appellant was under a genuine impression that the seller is in Afghanistan and that they really needed support for their lawful business. 4.14 It is submitted that other arrested accused (A-4 to A-10) were not investigated as to whether the appellant is part of their drug cartel or not; and whether Mr. Mohammad Hussain Dad (WA-
1) or Mr. Najibullah Khan Khalid (WA-4) had ever discussed about the Appellant with them.
4.15 It is submitted that the none of the arrested accused (A- 4 to A-10) has confessed anything about the Appellant regarding his role in the crime. It is submitted that the appellant did not Page 9 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined collude with other wanted accused to smuggle Narcotic Drugs into India. The entire conspiracy to import the Narcotic drugs inside India was already well planned and executed by Mr. Mohammad Hussain Dad @ Hussain Shah Noorzai @ Haji (WA-1), Mr.Mohammad Hassan Shah (WA-2), Mr. Javad Najafi (WA3), Mr. Najibullah Khan Khalid @ Ustad Khalid @ Pehelwan (WA-4), Mr. Esmat Ullah Honari (WA-5), all Afghan nationals, even before the Appellant was involved, as the first consignment covered by Bill of entry No. 4256146 dated 09.06.2021 was initially imported in the name of V.K. Enterprises, Delhi. The consigned was changed to M/ s. Aashi Trading Company only subsequently, when the aforementioned accused faced some unknown issues. 4.16 It is submitted that during the Panchnama Proceedings dated 14.09.2021 conducted at Customs Freight Station (CFS) of M/s. T.G. Terminals Pvt. Ltd, the DRI officers found that the container seals did not match with the seal numbers mentioned in the Bill of Lading bearing No. FFSMUN211168. There was already a manual written endorsement on the body of the said Bill of Lading specifying that "Both containers found seal mismatch". The endorsement was duly signed and stamped by the CFS authorities. The Appellant cannot be held lable 'for the Narcotic Drugs concealed inside the consignment without the knowledge of the Appellant, when the original seals of the consignment itself is found Page 10 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined to be tampered and mismatching. The shipping instruction document prepared in Bandar Abbas Port, Iran clearly states the container Nos. and the seal given to it, which was later found to be "mismatching". The "Terminal Tally Sheet" generated on 11.09.2021 at 22.57 Hrs. by the CFS depicts correct container and seal numbers. The declaration made by the importer to the customs in FORM III also depicts correct container and seal numbers. However, the seal is found to be mismatching on 14.09.2021. This clearly indicates that the seal was tampered inside M/s. T.G. Terminals Pvt. Ltd. Only between 11.09.2021 and 14.09.2021. 4.17 It is submitted that there is no plausible explanation as to why they did not investigate the issue pertaining to "mismatch" of the container seals as stated supra. It is pertinent to note that the container containing the consignment reached Mundra Port on 11.09.2021; however, the same was subjected to verification/scrutiny only on 14.09.2021. The subject containers were lying in the CFS terminal unattended for 3 days before it was scrutinized on 14.09.2021.
4.18 It is submitted that the purpose of starting the "Talc Group" was to create a platform between importer and exporter to discuss the shipment process. Everything was discussed in a transparent way and is a part of record. There is nothing to indicate that some illegal activities were being carried out secretly Page 11 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined with an intention to import any narcotic substance or to avoid/bypass any customs process to avoid detection. It is pertinent to note that the Appellant herein only advised standard customs procedures to his friend to avoid demurrages. 4.19 It is submitted that the appellant was not aware of the fact that Narcotic Drugs are concealed inside the consignments is evident from the letter dated 13.09.2021 sent by the Joint Director of Directorate of Revenue Intelligence, Hyderabad that states, "Importer is a name lender who is getting Rs.30,000/- per container and may not even know the actual contents."
5. 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 Page 12 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined accused persons, earlier in the month of June, 2021 managed to 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. 5.1 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.
5.2 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 (W.A. No.1) hailing from same destination with same modus operandi.
5.3 In view of the above, the Ministry of Home Affairs, Govt. of India vide their order No.11011/64/2021/NIA dated 25 th Page 13 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined October 2021, in exercise of the powers conferred under Sub- 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.
5.4 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, Page 14 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined S/o. Osman Khan @ Mahmood Khan (iii) Jamshid Sakizada, 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. 5.5 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 charge sheet accused nos. 9 and 10 are shown as accused nos.10 and 9).
5.6 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 Page 15 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined earlier consignment of Aashi Trading Co. was offloaded and said 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).
5.7 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.
5.8 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.
5.9 It is submitted that analysis report of the tower locations of mobile numbers 8882536262, 9873984833 used by Page 16 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined 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.
6. 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 was a middleman for importer firm M/s Aashi Trading Company which was the consignee of the freight (consignment) of 2988. 21 kgs of narcotics substance (heroine) sent from Afghanistan to Mundra, Gujarat, in the guise of Semi-processed Talc Stones. He facilitated the Afghan National accused consignor by way of Import export code (IEC), Customer Clearance and logistic support hired from Gandhidham, Gujarat for the safe landing and transportation of the consignment in the guise of talc powder at Mundra Port, Gujarat and also arranged custom Page 17 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined clearance and Logistic for further movement and delivery of drugs. He has Received Drug proceeds. The arrangements for customs clearance of the said consignment at Mundra port and subsequent transportation thereof from Mundra port to the warehouse at Alipur Delhi was organized by A-1-Machavaram Sudhakar, as per the directions of an Afghan national Mohammad Hussain Dad (WA-
1) owner of the Afghanistan based supplying firm Hasan Hussain Ltd.; that A-1 was introduced to WA-1 by Rajkumar Perumal (A-3)- appellant. WA-3-Jawad Najafi approached Rajkumar Perumal (A-3)- appellant 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 communication was done by WA-3 from his mobile number +98 9155681365 to the mobile number +91 6380479074 of A-3- appellant. The present appellant in turn approached Machavaram Sudhakar (A-1), who offered to act as consignee for the shipments proposed to be sent by WA-1 and provided the consignee's name as M/s Aashi Trading Company, Vijayawada wherein his wife Govindaraju Durga Purna Vaisali (A-2) was a Proprietor. The analysis report of WhatsApp group "Talc" created by A-3-Rajkumar P-appellant by his mobile number +91 6380479074, during the month of June,2021, joined by A-1 (M. Sudhakar) having mobile no. +91 9345375902, 9441288199, WA-1 (Mohammad Husain Shah) Page 18 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined having mobile No. +93 700937070 and WA-3 (Javad) having mobile no. +98 9155681365, will establish the communication among the accused persons, sharing of documents to each other, preparation and implementation of the conspiracy for the smuggling of huge quantity of narcotics drugs from Afghan to Mundra, Gujarat.
7. 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 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.
8. 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 Page 19 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined NIA, Special Court, Ahmedabad, Gujarat vide order dated 11.10.2021.
9. 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.
10. 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.
11. 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 Page 20 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined 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.
11.1 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. 11.2 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 consignment at Alipur (Delhi) Godown on 21-22.06.2021. 11.3 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.
12. 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 Page 21 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined 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.
13. 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 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.
14. That in furtherance of the conspiracy, WA-1-Mohd Page 22 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined 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-appellant 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 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-appellant 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.
15. In furtherance of the conspiracy, A-3-appellant 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 Page 23 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined 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. 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.
16. 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.
17. 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-
Page 24 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined 520 011, 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 Horse Shipping, 100-C, Room No.402, 11th Street, Khayban-e-Jami Commercial, Phase 7, DHA, Karachi, Pakistan. 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.
18. 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 Page 25 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined 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.
19. 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 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.
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20. 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.
21. 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.
Page 27 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined 22. The Court also finds that the investigation has
examined many witnesses to prove the case against the accused persons. Director, DFSL, Gandhinagar, in his version has stated that Rajkumar Perumal-A-3-appellant having mobile number +916380479074 created a WhatsApp group named "TALC" and added M Sudhakar (-1) +919345375902, +919441288199 and Javad Najafi (WA-3) +989155681365 as its members. Subsequently, A-3-appellant made A-1-Sudhakar M. also an 'Admin' of the said group and thereafter A1 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-Machavram Sudhakar in his version has established role of identification of Hussain Dad, Javed Najafi, Rajesh Gauba, Raju Dubai, Rajkumar-appellant and creation of whatsapp group by Rajkumar Perumal-appellant. He has established involvement of accused in Coal consignment of Hussain Dad and his allies viz. Rau Dubai; sharing of mobile number 8882536262 of Najibullah Khalid by Hussain Shah as Amit @ Page 28 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023 NEUTRAL CITATION R/CR.A/2477/2022 ORDER DATED: 09/06/2023 undefined Hameed; Hussain shah send number of Raju Dubai and Hussain Shah send bank deposit receipt of Rs.3 Lakh by Neha Kumari.
23. The appellant has played pivotal role by acting as conduit between A-1-Sudhakar M., who was holding import licence and Afghan national interested in importing the narcotic substance in clandestine manner.
24. As discussed above, the appellant has played an important role and but for his role, the export of narcotic substance in bulk quantity was not possible. The Investigation Agency has collected sufficient documentary evidence to indicate the role of the applicant.
25. Therefore, considering the provisions of the UAPA, NIA and the provisions of the NDPS Act, the Court is unable to conclude that the applicant is not guilty of the offence. Though elaborate submissions were made on the ground that invoking of UAPA was unwarranted and only for the purpose of increasing the gravity of the offence, the Court finds that sheer quantity of narcotic substance and the role of WA across the border attaches the seriousness to offence not to discuss the far reaching consequences on the next generations at this stage.
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26. 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.
27. The appeal therefore deserves to be and is hereby dismissed.
(A.Y. KOGJE, J) (M. R. MENGDEY,J) SHITOLE Page 30 of 30 Downloaded on : Sat Sep 16 20:04:34 IST 2023