Full Judgment Text
Petition for Special Leave to Appeal (Criminal) No. 8942 OF 2021
REPORTABLE
IN THE SUPREME COURT OF INDIA
EXTRAORDINARY APPELLATE JURISDICTION
PETITION FOR SPECIAL LEAVE TO APPEAL (CRL.) NO. 8942 OF 2021
RAMJHAN GANI PALANI ….. PETITIONER
VERSUS
NATIONAL INVESTIGATING AGENCY AND ANR. ….. RESPONDENTS
O R D E R
Hima Kohli, J.
1. The petitioner has filed the present petition seeking special leave to
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appeal against the order dated 19 August, 2021, passed by the Gujarat
High Court, dismissing the appeal preferred by him against the order
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dated 19 March, 2021, passed by the Special Judge, National
Investigating Agency, Ahmedabad, whereby his bail application was
rejected in a case registered originally by the Directorate of Revenue
1
Intelligence and subsequently taken over by the National Investigating
Agency for offences under Sections 120-B, 121-A & 122 of the IPC,
Sections 17, 18, 18-B, 20 of Unlawful Activities (Prevention) Act and
Signature Not Verified
Digitally signed by
SATISH KUMAR YADAV
Date: 2022.04.28
17:17:59 IST
Reason:
Sections 2, 8, 16, 17, 18, 23, 24, 29 and 32 (B) (e) of the Narcotic Drugs
1 For short ‘the DRI’
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Petition for Special Leave to Appeal (Criminal) No. 8942 OF 2021
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and Psychotropic Substances Act, 1985 , relating to seizure of 236.622
st nd
Kgs. of Narcotics drug, Heroin near Jakhau Port, Gujarat on 21 & 22
May, 2019 in a joint operation by the Indian Coast Guard and DRI.
2. The case of the prosecution is that on receiving intelligence input,
the DRI had intercepted a Pakistani boat in the Indian territorial waters
st
which was trying to escape on 21 May, 2019. The Indian Coast Guard
had chased and caught the Pakistani boat with one Captain and five
crew members on board. The Captain had admitted to dumping some
bags into the sea along with a satellite phone. 194 packets were
retrieved from the seven bags containing a total quantity of 217.856 Kgs
of narcotic substance, Heroin and were seized. Subsequently, 17 more
packets of Heroin weighing 18.766 Kgs were also recovered from the
coastal area near the location, thereby taking the total seized quantity of
Heroin to 236.622 Kgs in 211 packets The investigation revealed that
narcotics were being clandestinely brought into Gujarat from Pakistan
through the sea route. During his interrogation, the Captain of the
Pakistan Flag ship, “ Al Madina ” stated that delivery of the consignment of
the narcotic drugs had to be made at a particular position on the sea for
which a communication was to be sent on VHF to the Indian counterpart.
Communication channel No. 8 was earmarked for this purpose on which
2 For short ‘the NDPS Act’
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Petition for Special Leave to Appeal (Criminal) No. 8942 OF 2021
he was to use the call sign “ Mohammed” and the Indian counterpart was
to respond with the sign “Ramzan”.
3. On receiving the aforesaid information, a radio operator was
deputed by the Indian Coast Guard Officers to go on calling
“Mohammed-Ramzan-Ramzan” by a hit & trial method on VHF Channel
No.16, being an International Maritime channel that was meant for use of
fishermen communication and for Ship-to-ship contact. In response to
the said call, the petitioner herein on board an Indian fishing boat drifting
in a nearby location close to where the Pakistan Flag Ship was
intercepted, had replied, “Ramzan-haan bolo”, but on VHF Channel No.8.
The prosecution version is that there was only one Indian fishing boat in
the immediate vicinity that belonged to the petitioner herein with twelve
crewmen on board. The said boat had remained on the high sea for 4-5
days and in all that period, they had managed to catch only five fish.
Moreover, the Captain and the crew members of the Indian fishing boat
appeared with neat and clean clothes, though the petitioner claimed to
be fishing on the high sea for 4-5 days. Even the fishing net and the deck
of the boat were found unsoiled, clearly, pointing a finger of suspicion
towards the petitioner. It was contended that no attempt was made to
prove that any substantial number of fish had been caught while on sea
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Petition for Special Leave to Appeal (Criminal) No. 8942 OF 2021
and that the boat was drifting at that location for five days only with the
motive of collecting the consignment of the contraband. As a result, the
petitioner was detained on a reasonable belief that he was the Indian
recipient for the drug consignment brought into the Indian territory by the
Pakistani Flag Ship.
3
4. Learned Special Judge, National Investigating Agency ,
Ahmedabad rejected the regular bail application filed by the petitioner
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vide order dated 19 March, 2021. Aggrieved thereby, the petitioner
preferred an appeal that has been dismissed by the Division Bench of
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the High Court of Gujarat by a detailed order dated 19 October, 2021,
holding inter alia that there is more than a prima facie case made out
against him, pointing to his involvement in the offence.
5. Mr. R. Basant, learned Senior Counsel appearing for the petitioner
has argued that the High Court has gravely erred in denying the relief of
bail to the petitioner and the entire case of the prosecution is based on
suspicion; that the petitioner is a victim of unhappy coincidents of being
at the wrong place at the wrong time; that except for the petitioner, none
of the twelve crew members on the boat were arrested or charged as
accused persons; that the petitioner has clean antecedents and there is
3 For short ‘the NIA’
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Petition for Special Leave to Appeal (Criminal) No. 8942 OF 2021
no likelihood of his committing any overt act if granted bail.
6. Much emphasis has been laid by learned Senior Advocate
appearing for the petitioner on the fact that merely because the petitioner
had replied to the communication “ Mohammed” on the VHF Channel with
the words “ Ramzan haan bolo ”, cannot be treated as sufficient to reject
his bail application, more so, when the petitioner’s name happens to be
Ramjhan Gani Palani. Therefore, simply because the petitioner had
replied on Channel No.8 to the radio operator who had transmitted the
aforesaid message on VHF Channels No.8 and 16, can hardly be treated
as a ground to substantiate the case of the prosecution. Reference was
also made to the invoice for a sum of 3,47,325/- (Rupees Three lakhs ₹
forty- seven thousand three hundred twenty-five only), being the value of
the seven fish sold by the petitioner after the boat was released. It was
contended that out of the seven fish, five fish were “Ghol fish” colloquially
known as “sea gold” weighing 104 kg, which are a rare catch and very
expensive. The price of this fish is stated to be pegged at around 1400/-
₹
(Rupee Fourteen Hundred only) per kg in the market. Claiming that even
on an earlier occasion, the petitioner had gone on the high seas looking
for Ghol fish that was caught and sold for a handsome amount which
was enough to demonstrate that he was neither involved in illegal trade
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Petition for Special Leave to Appeal (Criminal) No. 8942 OF 2021
of narcotics, nor was he tipped to approach the Pakistani Flag ship,
detained by the authorities. Lastly, it was contended that merely
because the boat and the crew members were found to be neat and
clean, could not be a ground to deny the relief of bail to the petitioner.
7. Mr. K.M. Nataraj, learned Additional Solicitor General for the
respondent No.1/NIA vehemently opposed the present petition and
submitted that after the six Pakistani nationals found on board of the
Pakistani fishing vessel were arrested on 24.05.2019, the petitioner was
arrested two days later on 26.5.2019. On 15.11.2019, a complaint was
registered under the provisions of the NDPS Act, 1985, at the instance of
DRI before the Special Judge for NDPS Cases at Bhuj, Gujarat against
all the seven arrested accused including the petitioner. As per the said
complaint, the petitioner was charged with offences punishable under
Sections 28, 29 and 30 of the NDPS Act for which the punishment
prescribed is imprisonment for a minimum period of ten years, which can
extend up to a maximum period of twenty years. Subsequently, on the
orders of the Ministry of Home Affairs, Government of India, further
investigation of the case was transferred to the NIA and the case was re-
registered on 26.05.2020 at NIA Police Station, New Delhi vide RC
No.24/2020/NIA/DLI.
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Petition for Special Leave to Appeal (Criminal) No. 8942 OF 2021
8. Learned counsel for the respondent No.1/NIA stated that on
18.12.2020, NIA had filed a charge sheet before the NIA Special Court,
Ahmedabad against the 6 arrested Pakistani nationals and the petitioner
herein for offences related to the attempted smuggling of the narcotic
drug, Heroin. He pointed out that as per the charge sheet, nine
Pakistani nationals who are absconding, have been shown as wanted
accused and their role in the matter is still under investigation. As on
date, charges have been framed against the petitioner and the six
arrested Pakistani nationals. It was urged that the petitioner is under an
erroneous assumption that the case against him is a routine matter while
over-looking the fact that the present case relates to organized
smuggling of narcotic drugs, for sale in India and for generating funds
meant for promoting terrorist activities, which is a serious offence and a
valid ground for denying him the relief of bail.
9. We have perused the impugned order and carefully considering the
arguments advanced by learned counsel for the parties, duly recorded in
paras 8 and 9 of the impugned judgment and are of the prima facie view
that there is sufficient material on record to deny the discretionary relief
of bail to the petitioner. Much is sought to be made of the five Ghol fish
netted by the petitioner and his crew members over five days of
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Petition for Special Leave to Appeal (Criminal) No. 8942 OF 2021
remaining on the high seas by referring to the high market value of the
prize catch. The petitioner would be entitled to justify his presence in
the fishing boat, at the scene of crime which is sought to be described as
a sheer coincidence during the trial. The explanation offered by the
petitioner of having responded to the call “Mohammed-Mohammed-
Ramzan-Ramzan” on Channel No.8, instead of Channel No.16 which is
the specifically earmarked channel for communication with fishermen
and for Ship-to-Ship contact, would also be available to him at that stage.
But at the threshold, this appears to be a case where the petitioner has
been fishing in troubled waters and as per the respondent No.1/NIA, has
got caught in his own net.
10. Records reveal that the chargesheet has been filed by the
respondent/NIA on 18.12.2020. As per the said chargesheet, nine
Pakistani nationals are still absconding. Further, investigation in the
case is still pending. The petitioner has been chargesheeted for a
serious offence where the minimum punishment prescribed is of ten
years. We are, therefore, not inclined to exercise our discretion in favour
of the petitioner by interfering with the impugned order, at present.
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Petition for Special Leave to Appeal (Criminal) No. 8942 OF 2021
11. Resultantly, the petition for special leave to appeal is dismissed.
Needless to state that the observations made hereinabove, are limited to
examining the prayer made by the petitioner for grant of regular bail and
shall not be treated as an observation on the merits of the case,
particularly when the trial has yet to commence.
................................. CJI.
[N. V. RAMANA]
.................................. .J.
[KRISHNA MURARI]
................................... J.
[HIMA KOHLI]
New Delhi,
April 27, 2022.
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