Gujarat High Court
Niyamatkhan Mannan Ahmadzai vs State Of Gujarat on 22 March, 2021
Equivalent citations: AIRONLINE 2021 GUJ 266
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/872/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 872 of 2020
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NIYAMATKHAN MANNAN AHMADZAI
Versus
STATE OF GUJARAT
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Appearance:
MR. N. D. NANAVATY, SR. ADVOCATE for NANAVATY ADVOCATES(1373)
for the Applicant(s) No. 1
MR. H.K. PATEL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 22/03/2021
ORAL ORDER
1. This application is filed by the applicant under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR registered as C.R. No. III1 of 2019 with ATS POLICE STATION, AHMEDABAD CITY, for the offence punishable under Sections 8(C), 21(C), 23(C), 25, 29, 32B(E)(F) of the NDPS Act.
2. Learned advocate appearing on behalf of the applicant submits that considering the nature of offence, the applicant may be enlarged on regular bail by imposing suitable conditions.
3. Learned Advocate for the applicant submitted that the applicant is in custody since 13042019, though the applicant is not named in the FIR.
4. Learned Advocate for the applicant submitted that the role attributed to the applicant is based on the version given by the coaccused that the Narcotic substance was to be supplied by one Badruddin and he was to supply to the applicant. However, now said Badruddin is named as a Page 1 of 5 Downloaded on : Tue Mar 23 21:14:32 IST 2021 R/CR.MA/872/2020 ORDER witness whereas the applicant is named as an accused. The applicant had come to India for his medical treatment and thereafter, he has been roped into the present offence. The statement of one Abdul Salam - accused during the course of panchnama, cannot be basis for arraigned the applicant as an accused.
5. It is submitted that during the course of investigation, the mobile phone recovered from the present applicant do not shown any call detail records with the other coaccused persons.
6. On the other hand, the learned Additional Public Prosecutor appearing for the respondentState has opposed grant of regular bail looking to the nature and gravity of the offence. Learned Additional Public Prosecutor also submitted that from the statement of witness Badruddin, role of the applicant has been surfaced and has also been identified that the case is of very serious nature involving Methamphetamine of commercial quantity extent of 4.918 kgs valued at approximately Rs.24,59,000/ being pushed into India through sea route.
7. Having considered the rival submissions of the parties and having perused the documents on record, it appears from the investigation case papers, the offence is with regard to the smuggling of huge quantity of Methamphetamine into India via sea route, whereas the applicant who is the origin of Afghanistan entered into India on the ground of medical treatment and while in India, entered into matrimonial relation with the Indian citizen. The Investigation is also able to point out from the CDR
- Call Detail Records of the applicant, from his mobile number with driver of witness Badruddin and with accusedAbdul Salam, conversation between the applicant and Abdul Salam is also made on the another mobile phone number, which was used by the applicant.
8. The investigation has relied upon the witness Shri Badruddin Sarfuddin Page 2 of 5 Downloaded on : Tue Mar 23 21:14:32 IST 2021 R/CR.MA/872/2020 ORDER Shaikh had gone to Tehran from Mumbai, about four months prior to 27/03/2019 to purchase dates and dryfruit. At the fruit market, he had conversation regarding purchase of date and dryfruit with wanted accused in this case Ali @ Haji saab and then he had returned to Mumbai. Thereafter, witness Shri Badruddin Sarfuddin Shaikh used to talk over mobile phone to Ali @ Haji saab from Tehran frequently. Meanwhile, about two months prior to 27/03/2019, Ali @ Haji saab informed the witness Badruddin over telephone that my stock of chemical will arrive in launch. You have to transfer that chemical to another launch and safely unload it to the coast of Gujarat. Thereafter, you will have to call my man namely Mahammad who lives in Delhi, he will arrive and collect the chemical. He had provided two Delhi based mobile numbers 7838506885, 9667353820. Thereafter, Badruddin had contacted Mahammad and stayed at D Romana hotel, located near Delhi Jama Masjid. At that time, he met accused no. 10 Niyamatkhan @ Mahammad and accused no. 11 Abdul Salam. Niyamat khan informed that when you receive the chemical sent by Ali @ Haji saab, call me and after that I will take its delivery from any place you say. Thereafter, Niyamatkhan had given Rs. Ten lakh to Badruddin for this work. Thereafter, about one month prior to 27/03/2019, Ali alias Haji Saab from Tehran told Badruddin on phone call that, the goods he is going to send him is not chemical but it is drugs heroin. On hearing the same Badruddin got terrified. But, Badruddin agreed to do this work fearing that, If he does not do this work of Ali alias Haji Saab, those persons will harm him in future or they will harass him, as they had business in Iran and other countries. He falsely told Ali alias Haji Saab that, they will send another boat namely Almujib for transferring the heroin from the sea. Thereafter, again Ali alias Haji Saab made a phone call to Badruddin and told Badruddin that, he has told him his secret and if he does not do his work, than he will face harsh consequences. Therefore, Badruddin got panicked by his threat and agreed to do their work. Thereafter, on 23/03/2019, Ali alias Haji Saab called Badruddin and Page 3 of 5 Downloaded on : Tue Mar 23 21:14:32 IST 2021 R/CR.MA/872/2020 ORDER told that, Mohammad Aslam the Captain of their boat namely Yusuf has left with the stock of heroin. Thereafter, Ali alias Haaji Saab kept calling Badruddin but he did not receive phone calls. This fact can be known by the frequent talks made from witness Badruddin's mobile number 9619777678 to the mobile number from Iran and talks made from witness Badruddin's mobile number 7631823383 to accused Niyamat Khan's mobile numbers 7838506889 and 9667353820.
9. It further appears from the version given by Abdul Salam s/o Abdul Rehman Kunil has stated in his statements that he was introduced with Haaji Nadar of Afghanistan on mobile phone by a person named Mansur in Mumbai around five to six months before 13/04/2019. He used to talk with him sometimes. At that time, he asked him if any work was available, Haaji Nadar told him that his heroin supply was to reach at the Gujarat coast and he should accept its delivery through his man Niyamat Khan and he was supposed to deliver the same to the place which he would say. He would pay him Rs. 10 lakhs for the said task. Thereafter, Haaji Nadar gave the mobile number of Niyamat Khan. Thereafter, he contacted Niyamat Khan and came to Delhi. At that time, Niyamat Khan told him that the supply of Haaji Nadar has not reached yet, but before the said supply is received, if he can sell his stock of the methamphetamine drug by searching some customers, he will be paid Rs. 50,000/ per kilogram. Therefore, Abdul Salam got around 11 kilogram methamphetamine drug in parts and sold 6 kg from it to different customers and he put the rest 5 kg methamphetamine drug in his rented house in Delhi viz. House No - 410, Second Flour, Gali Chadi Wali Pahal Ganj, New Delhi. As he voluntarily showed the same, narcotics object methamphetamine in quantity of 4918 gm, cost Rs. 24,59,00,000/ has been seized from his rented house in the presence of the pancha.
10. The Court has also perused the order dated 06112019 passed in Page 4 of 5 Downloaded on : Tue Mar 23 21:14:32 IST 2021 R/CR.MA/872/2020 ORDER Criminal Misc. Application no.1425 of 2019 by the Sessions Court. The Sessions Court has assigned cogent reasons for rejecting the bail application of the applicant.
11. The Investigation is still going on as three of the accused persons located in Pakistan, Afghanistan and Iran are still absconding.
12. In view of the aforesaid, considering the fact that the offence is the organized crime involving accused persons from outside of India and considering the quantity of Narcotic substance being commercial quantity attracting Section37 of the NDPS Act, nothing has come on record on behalf of the applicant to prima facie indicate that the applicant is not involved in the offence.
13. In view of the aforesaid facts and circumstances, no case is made out for the exercise of discretion in favour of the applicant for the grant of regular bail in connection with aforesaid C.R. Hence, the application is dismissed. Rule is discharged.
(A.Y. KOGJE, J) PARESH SOMPURA Page 5 of 5 Downloaded on : Tue Mar 23 21:14:32 IST 2021