Gujarat High Court
Karim Mohammed Siraj vs State Of Gujarat on 19 February, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Samir J. Dave
NEUTRAL CITATION
R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (REGULAR BAIL) NO. 484 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE SAMIR J. DAVE
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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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KARIM MOHAMMED SIRAJ
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR AJAY L PANDAV(3660) 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) Page 1 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024 NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined
1. The appeal is filed by the appellant under Section 21 of the National Investigation Agency Act, 2008 for offences punishable under Sections 120(B) of IPC read with Sections 21(C), 8(C), 25, 27(A) and 29 of the NDPS Act and under Sections 17 and 18 of the Unlawful Activities (Prevention) Act for following relief:-
"(C) to enlarge the present applicant-herein/accused no.7 on regular bail in connection with the FIR dated 02.07.2020 bearing No.RC-26/2020/NIA/DLI registered with National Investigation Agency, New Delhi (NIA Special Case No.2 of 2020) for the offense punishable u/s. 120(B) of Indian Penal Code, Section- 21(c) r/w. 8(c), 25, 27(A) and 29 of Narcotic Drug and Psychotropic Substances (NDPS) Act as well as Section 17 and 18 of the Unlawful Activities (Prevention) Act, on appropriate terms and conditions which this Hon'ble Court may deem fit and proper in the interest of justice."
2. Learned Advocate for the appellant has submitted that on 13.08.2018, FIR has been registered by Shri R.I.Jadeja, Police Insepctor, ATS Ahmedabad which came to be registered with ATS Police Station, Ahmedabad as C.R.No.III No.1 of 2018 for the offense punishable under Sections 8(c) and 21(c) of the NDPS Act. The offense pertains to the criminal conspiracy by the arrested accused Nos.1 to 8 and wanted accused Nos.1 to 5 of smuggling and distribution of 500 kg. of illegal Narcotic Drugs (Heroin) from Pakistan to Gujarat (India) by sea route. It is submitted that the name of the present appellant had not been disclosed in the main charge-sheet and subsequently, the investigation was took over by the NIA and thereafter, the said agency submitted charge-sheet in which the present appellant shown as accused No.7.
2.1 Learned advocate submitted that That, the learned trial court committed an error by ignoring the fact that by going through the FIR as well as main charge-sheet, there was no concrete materials found against the present appellant, so as to sustain such serious Page 2 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024 NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined charges as leveled by the prosecution which would go to suggest the intend so as to falsely implicate the present appellant. The facts that by taking the case of the prosecution as it is, there is absolutely no recovery or discovery of the contraband from the possession of the present appellant and therefore, when the version of the prosecution is to the effect that the present appellant and accused No.8 agreed to get involved in the conspiracy for affecting delivery of remaining 200 kg. narcotic drugs (Heroin) whereby the present appellant and accused No.8 received huge amount. On the other side, the investigating agency could not collect the said huge amount or contraband from the present appellant.
2.2 It is submitted that the learned trial Court wrongly considered the provision of Section 37 of the NDPS Act against the appellant and rejected his bail application. That, the learned trial Court ought to have considered the fact that there is no any antecedent of the present appellant and looking to the role of the appellant, he is not prime accused in entire crime. The present appellant is in judicial custody from 19.02.2020 and therefore, after two years, the present appellant ought to have released on bail.
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 the NIA has strongly objected the application and mainly submitted that the appellant accused No.7 has played vital role in the commission of the offense and there exists strong case against the present appellant. Investigation also revealed that the present appellant Karim Md. Siraj (A-7) accepted the offer of Shahid Kasam Sumra (A-11) and he persuaded his friend Sunil Vithal Barmase (A-8) for further conspircy and commission of the crime. Subsequently, the Page 3 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024 NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined present appellant Karim Md. Sira A-7 and Accused No.8 contacted driver Indresh RambachanNishad (A-9) for onward delivery of 200 kgs narcotic drugs (heroin) to Amritsar, Punjab by offering Rs.2 lakh to driver Indresh Nighad (A-9) to which driver Indresh accepted the offer. It also appears from the record that as per the conspiracy and directions of Shahid Kasam Sumra (A-11), the appellant-accused dug out remaining 200 kg narcotic drugs (heroin) and kept it in his Swift Desire 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 accused Karim Md. Siraj (A-7)/appellant-accused. Then the present appellant- accused Karim Md. Siraj (A-7) and Sunil Vithal Barmase (A-8) shifted the drugs to a Skoda car and toak the 200 kgs narcotic drugs (heroin to Gandhfdham, which was then loaded and concealed between the wooden panels in the truck No.GJ-12-BW- 2323 of accused Indresh Nishad (A-9) for further delivery to Amritsar, Punjab. Investigation further revealed that Indresh Rambachan 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 struck bearing registration No.Gu 12 BW. 2323 and Amritar, Punjab, where the consignment to be delivered, comes in the way of Gandhidham to Jammu, therefore, Indresh Rambachan Nishad A-9 decided and gave nod to the present appellant Accused No.7 and Sunil Vithal Barmase-accused No.8 for delivering of the consignment to Amritsar, Punjab. The truck bearing registration No.GJ-12-BW-2323 belonging to the Indresh Rambachan Nishad (A9) was Seized and the appellant accused Karim Md. Siraj (A-7) along with. 11 other 7 accused persons were arrested in the said case by STF/Amritsar.
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4. Heard learned advocates for the parties and perused the documents placed on record. The present appellant is in custody since 19.02.2020. It appears that the complainant received a secret information on 11.08.2018 at around 09:00 in the morning that one person named Aziz Abdul Bhagad was in possession of Heroin and was to pass near the primary school situated in Sodasar Village of Jamkhambhaliya, District: Devbhumi Dwarka between 7 to 9 a.m; Upon the said information, the complainant along with the other police officers travelled to the aforesaid place of secret information, as per the FIR, necessary Panch witnesses called and thereafter, all the police personnel along with the other panch witnesses placed themselves near the place of incident from where the alleged accused person was to pass-by. At around 7:15 in the morning, one person was coming towards Gujarati Primary School and was carrying a heavy bag, the said person was identified by other witness and thereafter, the said person was surrounded by the police officers, upon enquiring from the said person about his name, it was informed that his name was Aziz Abdul Bhagad. thereafter, necessary procedure under Section-50 and Section 42 of the NDPS Act were undertaken. Thereafter, upon checking the bag certain amount of drug (Heroine) was found. It is also alleged that thereafter, the concerned officer from Forensic Science Laboratory was also informed whereupon he reached at the place on incident and conducted the test of the alleged drug whereupon it was informed that there is presence of Heroine in the said substance. Thereafter, the necessary samples was collected from the bag and the rest of the material was confiscated. Ultimately, the total 4.949 kg of the contraband was found.
Page 5 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined 4.1 During the course of investigation, the investigating officer has made an application dated-20.08.2018 for addition of Section- 29 of the act in the FIR on dated-20.08.2018. Further, the Investigating Officer upon arrest of the other accused persons has preferred an application dated-30.10.2018 for addition of Section- 24, 25 and 27A of the act which were allowed by the learned trial court. The investigating Officer of ATS/Gujarat has filed the charge- sheet against the accused no.1 to 5 in the Special NDPS Court at Jam Khambhaliya, Gujarat on dated-22.01.2019 in which 4 other persons shown as an absconding. Pursuant to the investigation, the prosecution came out with a case that in total about 300 kg of heroin was brought in within the territory of Gujarat and that the shipment was obtained by other co-accused persons and was transferred to Punjab through Unjha.
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 (appellant-accused) 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-accused No.13 on the directions of Basheer Dawood Kungda-accused No.12.
Page 6 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined 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-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. The Ministry of Home Affairs, Government of India, having regard 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 (appellant-accused) 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), Page 7 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024 NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined 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-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 Rafik Adam Sumra-accused No.2} and accused Karim Md. Siraj-
Page 8 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined appellant-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- appellant-accused No.7 agreed for of monetary consideration.
9. Investigation has also revealed that, the accused Karim Md. Siraj- appellant-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)-appellant-accused 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)-appellant-accused 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)appellant-accused, 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.
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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)-appellant-accused. Then the accused Karim Md. Siraj (A-7) appellant-accused & 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. It has further revealed 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) appellant-accused & 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 Page 10 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024 NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined Timbers, Pvt Ltd, Gandhidham, Gujarat, has clearly established that, the accused Indresh S/o Rambachan 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)appellant-accused, 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)-appellant-accused, 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 Page 11 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024 NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined by the accused Sunil Vithal Barmase (A-8) for the communication with his accomplices Shahid Kasam Sumra, A-11, A-Razak Adam Sumra (A6) and Karim Md. Siraj (A7)-appellant-accused. 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 wag used by the accused Sunil Vithal Barmase (A-8) for the escorting of vehicle of accused Karim Md. Siraj A-7-appellant-accused 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-appellant-accused 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 appellant-accused 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)-appellant-accused is the owner of said vehicle. The investigation has revealed that the accused Sunil Vithal Barmase (A8) and accused Karim Md.Siraj A-7-appellant-accused 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. Page 12 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024 NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined 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, 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)-appellant- accused, (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.
13.1 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 Page 13 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024 NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined 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 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.
13.2 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, the process for filing a SLP in the Hon'ble Supreme Court of India has been initiated by NIA and is underway. 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 entered in a well organized international conspiracy at the behest of wanted accused No.1 He arranged transportation of Page 14 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024 NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined narcotic drugs of 200 Kg from Gujarat to Amritsar, Punjab. For transportation of narcotic drug, he alongwith Sunil Vithal Barmase (A8) contacted one truck driver named Indresh Rambachan Nishat and lured him to transport the narcotic drugs from Gujarat to Amritsar, Punjab. He alongwith Sunil Vithal Barmase (A8) received the consignment of Heroin of 200 Kg from one unknown car and loaded the said consignment and concealed it in between the wooden panels in the truck and made all arrangements for its delivery to Amritsar, Punjab on the directions of wanted accused No.2. He along with Sunil Vithal Barmase (A8) received a total amount of Rs.17 lakhs from wanted accused No.1 through Angadia in Bhuj as a part of profit. Out of Rs.17 lakhs given by wanted accused No.1 as a part of deal he kept Rs.04 lakhs with him, Rs.02 lakhs was given to the truck driver Indresh (A9) and remaining Rs.09 lakhs was given to Sunil Vithal Barmase (A8).
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 Records and FSL report.
16. The Court has heard the groups of appeals arising out of same crime and hence, joint arguments are made by both the sides regarding invoking UAPA as well as the twin test under Section 37 of the NDPS Act. 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 Page 15 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024 NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined 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 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.
Page 16 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined 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 rent 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 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:
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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 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.Page 18 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024
NEUTRAL CITATION R/CR.A/484/2023 JUDGMENT DATED: 19/02/2024 undefined 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 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."Page 19 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024
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23. The Court has perused the order passed by the Special Judge, NIA in NIA Criminal Misc. Application No.86 of 2022 dated 17.11.2022 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-9 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.
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 20 of 20 Downloaded on : Fri Mar 01 21:32:27 IST 2024