Gujarat High Court
Sobhan Aranfar S/O Abdul Hamid vs State Of Gujarat on 9 June, 2023
Author: A.Y. Kogje
Bench: A.Y. Kogje
NEUTRAL CITATION
R/CR.A/1429/2022 ORDER DATED: 09/06/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1429 of 2022
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SOBHAN ARANFAR S/O ABDUL HAMID
Versus
STATE OF GUJARAT
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Appearance:
MR SANDIP MEHTA with MS BARKHA R MAHESHWARI(10484) for the
Appellant(s) No. 1
MS KRINA CALLA, APP for the Opponent(s)/Respondent(s) No. 1
MR DEVANG VYAS, ASG assisted by KSHITIJ M AMIN(7572) 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:-
"b) To release the applicant on regular bail in connection with NIA FIR No.-RC-26/2021/NIA/DLI Page 1 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined for the offences punishable U/S 120B, 466, 471 of Indian Penal Code read with Sec. 8(C), 21(C), 23(C), 29 of NDPS Act and SEC.17, 18 & 20 UAPA, 1967."
3. The appellant, who is an Afghan national, is attributed with the role that he was closely associated with Najibullah Khalid (WA-4) and Abdul Salam Noorzai (WA-9) and he channelized drug proceeds/money from India to Afghanistan through hawala channel. He handed over drug proceeds in Indian rupees to hawala agents in Ballimaran Chandni Chowk, Delhi who in turn remitted equivalent amounts in USD to Afghanistan through hawala route. He provided assistance to Najibullah Khalid (WA-4) in buying an apartment in Delhi, by introducing the latter to a real estate agent in Malviya Nagar, and also by converting cash amounts into bank deposits and transferring the same to bank account of WA-4 for making payment towards purchase of the apartment. The said flat was purchased by WA-4-Najibulla Khalid through A-8-Sobhan Aryanfar and his wife and the said flat has been identified to be purchased from sale of narcotic drugs heroin (drugs proceeds), as no legitimate source of income could be attributed to Najibullah Khalid, Sobhan Aryanfar, his wife Upasana Mathur, wanted accused persons and other arrested charge-sheeted accused persons.
4. Learned Advocate appearing on behalf of the appellant Page 2 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined submitted that considering the nature of the offence, the appellant may be enlarged on bail by imposing suitable conditions. 4.1 It is submitted that there is absolutely no evidence brought on record that the appellant had played any part or any role in any conspiracy which ultimately resulted in the commission of crime. No act of omission or commission has been brought on record to establish the participation of the appellant in the alleged conspiracy in any manner. It is submitted that no evidence had been brought on record to prove that the appellant either obtained the possession of alleged contraband or that he abetted the crime. 4.2 It is submitted that there is absolutely no evidence on record to prove the existence of a conspiracy by his acts or statements which could be used against co-conspirator. On the contrary, the evidence on record suggests the innocence and non- involvement of the appellant. It is submitted that no independent evidence has been brought on record to prove the charge of conspiracy against the appellant. There is absolutely no evidence on record to suggest the involvement of the appellant in the case. The Ld. Trial court ought to have held that the charge of conspiracy had to be proved independently.
4.3 It is submitted that there is complete high handedness of the investigating agency while undergoing investigation had Page 3 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined caused great damage to the truthfulness of the real case and also in protection of fundamental right of the appellant Under Article 21 of the Constitution. The trial in this case is Vitiated. The appellant has not been investigated in the case according to the procedure established by law and in conformity with the procedure established by law Under Article 21 of the constitution of India. The investigating agency intentionally foisted a false case against the appellant in spite of the fact that nothing material was found against him, which could be termed as illegal or unlawful. 4.4 It is submitted that the perusal of record of the case proves beyond doubt that the appellant has not committed any offence under UAPA or NDPS Act. The trial of the case would result in the vitiation of trial because there is no material on record which could be termed as a terrorist act on the part of the appellant.
4.5 It is submitted that criminal conspiracy is an independent offence. It is punishable separately. The Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Narcotic Drug and Psychotropic Substance Act was required to establish the offence of conspiracy under NDPS Act by applying the same legal principles which are otherwise applicable for the purpose of offences under the NDPS Act on the part of the appellant. That Page 4 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined the applicant states and submits that well settled principle of law suggests that the applicant could not be charged and tried for the charge of conspiracy along with the absconding accused persons. There is absolutely no act of omission or commission alleged in the chargesheet and the accompanying documents which would suggest that the appellant was associated with WA-4 in any manner resulting in commission of criminal offence. He neither channelized drug proceeds/ money of WA-4 nor handed over any drug proceeds in Indian rupees to hawala agents in Ballimarian,Chandni Chowk, Delhi. The appellant did not remit amount of WA-4 in USD to Afganistan through Hawala route. He has been falsely implicated in this case without any legally admissible evidence. 4.6 It is submitted that statements of various independent persons namely S/Shri Ganesh Yadav, Balraj Singh, Vivek Kumar Chaudhary and Ms. Upasana Mathur neither implicate the applicant in this case nor their statements could be used for the purposes of corroboration . On the contrary the statements of all these persons clearly proves the non-involvement and innocence of the appellant in the case. It is submitted that the said witness did not state that the alleged Sobhan (appellant) came to their office for Hawala transaction and as such the story of the identification of the alleged Sobhan through photographs is false and fabricated because there had been neither any photograph ever shown to this Page 5 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined witness nor the said photograph was ever available with the prosecution during the period.
4.7 It is submitted that no role is specified in the impugned order which would establish prima facie material from the record of the case that the appellant aided and abetted the execution of the criminal conspiracy, which was hatched in connivance with other co-accused persons and the alleged wanted accused persons who are neither living in India at present nor could be brought to justice by the prosecution at this juncture of time. 4.8 It is submitted that the falsehood of the case is apparent from the fact that the alleged employee of the Hawala operator namely Ziaullah Yousafi neither identified the alleged Sobhan in accordance with the procedure established by law nor stated in his statement that the said alleged Sobhan gave any money to him directly.
4.9 It is submitted that the searching and seizing officers had not complied with the Mandatory provisions of the NDPS Act. There is absolutely no material brought on record which could establish the existence of any of the appellant with any terrorist organization etc. as per schedule specified under UAPA Act, 1967. 4.10 It is submitted that there has been gross violation of mandatory provisions of law U/s 41, 42,57 and Section 50 NDPS Page 6 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined Act, which would result in the vitiation of trial. There is neither any document made nor filed in the chargesheet, which authorized Insp. Shashi Kant Singh of NIA to search, seize and arrest the appellant. There is gross violation of Section 41,42 of NDPS Act and thus the trial is likely to be vitiated.
4.11 It is submitted that there is no bar or embargo on bail. Learned Advocate relied upon decision of the Apex Court in case of Union of India Vs. K.A. Najeeb, reported in (2021) 3 SCC 713 and submitted that the statutory restrictions like the one imposed by Section 43D(5) of the unlawful activities (Prevention) Act 1967 did not necessarily mean that the very ability of constitutional courts to grant bail would be ousted as the same would entail a violation of Article 21 of the Constitution of India. Since there is no element of conspiracy, the appellant has been falsely implicated in the case as neither any narcotic substance was recovered from his possession nor any thing illegal found at his instance during investigation, which could be termed as illegal under UAPA, 1967.
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 Page 7 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined provisions of the Narcotics and Psychotropic Substances Act, 1985 (in short 'N.D.P.S Act' for the sake of brevity). The offence pertains to a seizure of total 2988.210 Kgs of narcotics drugs Heroin at Mundra Port. The said consignment was sent from Afghanistan via Bandar Abbas, Iran. The consignment of heroin concealed with Talc Powder was imported at Mundra Port in the name of M/s. Aashi Trading Company. The DRI investigation has revealed that, the accused persons, earlier in the month of June, 2021 managed to 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 Page 8 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined 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 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-appellant-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-appellant was arrested in the present case. On 13.12.2021, arrested accused-appellant was produced before the Court of IVth Additional Metropolitan Sessions Judge /Special Page 9 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined Court for NIA Cases at Nampally, Hyderabad requesting for the transit remand. The Court granted (03) days transit period with direction to produce the accused person before the investigation in the case led to the arrest of following Afghan nationals- (i) Murtaza Hakimi @ Sahil Khan @ Mohammed Faisal, S/o. Mohammad Nadar,
(ii) Alokozai Mohammad Khan@ Saif Khan, S/o. Osman Khan @ Mahmood Khan (iii) Jamshid Sakizada, 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 seeking Police Custody (Remand) of aforesaid accused persons. This Hon'ble Court was pleased to grant the Police Custody (Remand) for a period of 05 (Five days) (i.e. in the chargesheet accused nos. 9 and 10 are shown as accused nos.10 and 9).
Page 10 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined 5.6 It is submitted that the offence also involved
consignment of June 2021 in connivance with Pradeep Kumar (A-5) and wanted accused persons. The said warehouse 712/713, Main phirni, Dharam kanta, Alipur, Delhi, is identified as wherein the earlier consignment of Aashi Trading Co. was offloaded and said 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 Page 11 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined 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 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.
5.10 It is the case of the prosecution that Afghan based wanted accused Mr.Mohammad Hussain Dad @ Hussain Shah Noorzai @ Haji (WA-1) and Mohammad Hasan Shah (WA-2) brother of Hussain shah having business license in the name of "HASAN HUSAIN LTD" issued by the Islamic Republic of Afghanistan, both, President and Vice President and partner of Hasan Husain Ltd, respectively hatched a deep rooted criminal conspiracy along with Page 12 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined Afghan nationals arrested accused A-4-Mohd Khan Akhlaqi, A-6- Said M.Hussaini, A-7-Fardin Amery, A-8-Sobhan Aryanfar, A-9- Alokozai Mohd Khan @ Siaf Khan and A-10-Murtaza Hakimi, Indian nationals arrested accused A-l-Sudhakar, A-2-Vaishali, A-3- Rajkumar and A-5-Pradeep Kumar, Afghan Nationals wanted accused WA-4-Najibulla Khalid, WA-5-Honari Esmat Ullah and WA- 6-Abdul Hadi Alizada and with Iran National wanted accused WA-3- Jawad Najafi, for the smuggling of the huge quantity of narcotics drug Heroin from Afghanistan to Mundra Port, Gujarat via Abbas Bandar sea port Iran for further transportation, distribution among the drugs peddlers in Delhi, Punjab, Uttar Pradesh and other states of India.
5.11 That in furtherance of the conspiracy, WA-1-Mohd Hussain Dad @ Mohd Hussain Shah approached Iranian national Javad Najafi (WA-3) for arranging logistical support at Bandar Abbas port Iran for shipment of the drug consignments to India, and also for finding a person in India who could act as a consignee for such shipments and for handling the logistical work at the port of import in India. Accordingly, WA-3 approached Rajkumar Perumal (A-3) in the month of May 2021, asking for assistance at Mundra port in India, for the import, clearance and onward transportation of the consignments proposed to be sent by WA-1 & WA-2 from Afghanistan via Bandar Abbas port, Iran. The said Page 13 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined communication was done by WA-3 from his mobile number +98 9155681365 to the mobile number +91 6380479074 of A-3. Rajkumar Perumal (A-3) in turn approached Machavaram Sudhakar (A-1), who offered to act as consignee for the shipments proposed to be sent by WA-l, and provided the consignee name as M/s. Aashi Trading Company, Vijayawada wherein his wife; Govindaraju Durga Purna Vaisali (A-2) was a Proprietor. A-1 agreed to handle the work of import; customs clearance and onward transportation of the said consignments to Delhi on behalf of WA-1 for monetary consideration.
5.12 In furtherance of the conspiracy, A-3 created a WhatsApp group named "TALC" and added A-1 and WA-3 as its members. Subsequently, A-3 made A-1 also an 'Admin' of the said group and thereafter A-1 added WA-1 to the group, as per the request made by WA-3. The said WhatsApp group was used as a virtual place for the conspiracy meetings held by WA-1 and WA-3 with A-1 and A-3, for further planning and implementation of the plan to smuggle Narcotics substance Heroin from Afghanistan to India, through sea route from Bandar Abbas port Iran to Mundra Port, Gujarat, India, in the guise of consignments of 'Semi Processed Talc Stones'. A-1 provided WA-1 and WA-3 with details of the firm Aashi Trading Co. so that shipping documents could be accordingly prepared by WA-3 showing Hasan Hussain Ltd.
Page 14 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined
Nimroz, Afghanistan, a firm owned by WA-1 and his brother WA-2 as consignor for the shipments and Aashi Trading Co. Vijayawada, firm owned by A-2 as consignee for the shipments. 5.13 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.
5.14 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- 520 011, Andhra Pradesh, India, 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 Page 15 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined 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.
5.15 The investigation has further revealed that, WA-1 along with WA-4, Fardin Amery (A-7), Esmat Ullah Honari (WA-5) and Pradeep Kumar (A-5) were present at the Alipur Warehouse to assist WA-1 in unloading the drugs consignment. WA-4 had arranged a Hydra crane lift and got the goods in 22 jumbo bags weighing 1000 kgs each, unloaded from the container into the warehouse, where it was stored till further transportation thereof to another rental premises for purification of the Narcotic substance Heroin, prior to its distribution and to earn huge amount of drugs proceeds for terror financing, by selling the same to the drugs peddlers and public in general.
5.16 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 Page 16 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined 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.
5.17 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. 5.18 According to prosecution, there is also technical evidence, wherein Analysis report of the tower locations of mobile Page 17 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined 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.
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 that he was closely associated with Najibullah Khalid (WA-4) and Abdul Salam Noorzai (WA-9) and he channelized drug proceeds/money from India to Afghanistan through hawala channel. He handed over drug proceeds in Indian rupees to hawala agents in Ballimaran Chandni Chowk, Delhi who in turn remitted equivalent amounts in USD to Afghanistan through hawala route. He provided assistance to Najibullah Khalid (WA-4) in buying an apartment in Delhi, by introducing the latter to a real estate agent in Malviya Nagar, and Page 18 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined also by converting cash amounts into bank deposits and transferring the same to bank account of WA-4 for making payment towards purchase of the apartment. The said flat was purchased by WA-4 through A-8 and his wife and the said flat has been identified to be purchased from sale of narcotic drugs heroin (drugs proceeds), as no legitimate source of income could be attributed to Najibullah Khalid, Sobhan Aryanfar, his wife Upasana Mathur, wanted accused persons and other arrested charge-sheeted accused persons.
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 Page 19 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined Gandhidham on 12.10.2021 and got transferred all the case papers/ documents/articles along with the physical custody of the 03 arrested accused persons from the Special NDPS Court, Bhuj to NIA, Special Court, Ahmedabad, Gujarat vide order dated 11.10.2021.
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) Page 20 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined establishes his presence with other accused at Kharsa No. 712- 713, Main Phirni Road, Village- Alipur, Delhi for receiving and unloading the first consignment on 23/06/2021 at the said warehouse, which was delivered by the witness driver Irfan Baig whose mobile number 9799113849 location was also found at the same place, date and time.
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, Page 21 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined willingly pointed out the warehouse located on Phirni Road, Alipur, New Delhi, where they unloaded the drug consignment (Talc) on 23/06/2021, and the places where A-6 had paid cash of Rs. 2.40 lakh to property dealer against rent agreement and the places from where he used to collect cash amount of Hawala, which clearly establishes that he has played an active role in the present case.
13. The Court also finds that the investigation has examined many witnesses to prove the case against the accused persons. Smt. Upasana Mathur in his version has stated that house was taken on rent by her for 22 months at F-7/12, Golchakkar, opp Gurudwara, Malviya Nagar, New Delhi, during 2016; that house was purchased at B-164, Freedom Fighter Enclave, New Delhi by the present appellant and her during 2020-2021 for sale consideration of 40 Lakhs, out of which 20 lakhs in cash and 20 lakhs in cheque were paid by Upasana Mathur and A-8; that there were cash transactions between Upasana Mathur and the appellant for her cash deposits through his bank accounts; that Vivek introduced Khalid at her instance to Mahaveer Builder for purchase of flat and that there was close association of Khalid, wife of Khalid and the present appellant. Shri Vivek Kumar is the Property Dealer. He in his version has stated that the house was taken on rent by Upasana Mathur for 22 months at F-7/12, Golchakkar, opp Gurudwara, Malviya Nagar, New Delhi, during 2016; that house Page 22 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined was purchased at B-164, Freedom Fighter Enclave, New Delhi by the present appellant and his wife Upasana Mathur during 2020- 2021 for sale consideration of 40 Lakhs, out of which 20 lakhs in cash and 20 lakhs in cheque were paid by Upasana Mathur and the present appellant; that that there were cash transactions between Upasana Mathur and the appellant for her cash deposits through his bank accounts; that Vivek introduced Khalid at her instance to Mahaveer Builder for purchase of flat and that once Khalid had requested him for verification of Abdul Salam (WA-09). Shri Binit Kumar Jha in his version has stated that there were cash transactions and online transfer between Upasana Mathur-wife of the present appellant and witness Shri Vivek Kumar. Shri Dalraj Dhankar in his version has stated that there were cash transactions and online transfer between Upasana Mathur-wife of the present appellant, Khalid (WA-04) and others for purchase of flat for Khalid through Mahaveer Builders, Vivek Kumar and others. Shri Ganesh Rajballabh Singh Yadav is the Property Dealer. He in his version has stated regarding association of the present appellant with Najibullah Khalid (WA-4); Khalid was introduced as friend of Upasana Mathur w/o Sobhan Aryanfar.; sell of Flat No.125/A, Sunshine Apartment, Transformer Gali, Neb Sarai, Meharauli, South Delhi-110068 purchased in the name of Peghla Rabya Khalid (wife of WA-4) on 05.02.2020 for Rs. 41.5 Lakh (showing value as Rs. 08 Lakh on paper); Sale of Flat No. B164, Freedom Fighter Page 23 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined Enclave, Neb Sarai, New Delhi for Rs. 20 Lakh on 28.01.2021 to Upasana Mathur-wife of the present appellant showing value of Rs. 20 lakh on paper. Ahmad Shirzad Ahmadi in his version has stated about Hawala Syndicate at Sharif Manjil Ballimaran for sending drug proceed to Afghanistan and close association of the present appellant and WA-4-Najibulla Khalid. Shashikant Singh in his version has stated regarding Social Media Account extraction which establishes his association with co-accused and others including support to banned terrorist organization. Ziaullaha Youssfi in his version has stated about Hawala Syndicate at Sharif Manji Ballimaran for sending drug proceeds to Afghanistan.
14. The sum and substance therefore of the offence committed by the present appellant he is an Afghan National and was living in Gurugram, India and was involved in the business of the drugs in the guise of an interpreter for the Afghan nationals visiting India for the medical treatment. He conspired with WA-1, WA-4, and A-5 for the arrangement of warehouse at Alipur Delhi for the safe custody of smuggled drugs. He assisted WA-1 and WA-4 in the unloading and storage of the consignment of drugs sent from Afghanistan in the Month of June 2021. He received drugs proceeds from WA-1, for the arrangement of warehouses and also paid Rs.2.80 lakh to the owner of Alipur Warehouse as a Security Page 24 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023 NEUTRAL CITATION R/CR.A/1429/2022 ORDER DATED: 09/06/2023 undefined deposit and one month rent and Paid Rs.1.6 lakh to the owner of Gurgaon Warehouse as a Security deposit and one month rent.
15. The Court has examined the facts and finds that the provisions of the UAPA AND NDPS Acts are rightly invoked in the facts of this case. The role of the applicant thus prima facie finds involvement of the applicant. The Court has also perused the judgment and order 16.06.2022 passed by the Special Judge (NIA) in NIA-Criminal Misc.Application No.15 of 2022 and finds that the order is justified and does not warrant interference.
16. 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.
17. The appeal therefore deserves to be and is hereby dismissed.
(A.Y. KOGJE, J) (M. R. MENGDEY,J) SHITOLE Page 25 of 25 Downloaded on : Sat Sep 16 20:04:23 IST 2023