ORDER : (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. This appeal under Section-21 of the National Investigation Agency Act, 2008 [in short ‘The Act, 2008’] is at the instance of an under trial accused and is directed against the order passed by the Special Judge [N.I.A.], Ahmedabad dated 19.03.2021 in the N.I.A. - Criminal Misc. Application No.05 of 2021 in connection with the C.R.No.RC-24/2020/NIA/DLI registered with the National Investigation Agency, Mumbai, by which, the Special Judge [N.I.A.] rejected the bail application. 2. We take notice of the fact that the appellant – original accused herein came to be arrested on 26.05.2019 in connection with the offence referred to above. The appellant – accused has been charged with the following offences:- Act Sections 1 The Indian Penal Code 120B, 121A, 122 2 Unlawful Activities (Prevention) Act 17, 18, 18-B, 20 3 NDPS Act 2, 8, 16, 17, 18, 23, 24, 29 and 32(B)(e) 3. The suspected offence as stated in the F.I.R. reads thus:- Suspected Offence: On 21.05.2019 the DRI Zonal Unit, Ahmedabad Gujarat seized 218 Kg. Suspected narcotics drugs and arrested 06 Pakistani crew members from a Pakistani vessel “AL MADINA” and one Indian fisherman (tindel of the Indian fishing boat) in the Indian waters near the Jakhau Port, Gujarat in joint operation of the Directorate of Revenue Intelligence (DRI) and Indian Coast Guard. The enquiry by DRI revealed that the narcotics was being brought into Gujarat, India from Pakistan and the intelligence inputs have revealed that the money generated through these seized narcotics was meant for furthering of terrorist activities. 4. In Column No.7 which provides for the details of known/ suspected/unknown accused with full particulars, the appellant – accused herein is shown at (vii). “(vii) Ramjhan Gani Palani S/o. Gani Ahmad Palani R/o. Beyt, Bet, Jamnagar, Okha Mandal, Gujarat – 361330.” 5. The contents of the F.I.R. are as under:- “On 21.05.2019 DRI Zonal Unit, Ahmedabad, Gujarat seized 218 Kg. suspected narcotics drugs and arrested 06 Pakistani crew members from a Pakistani vessel “AL MADINA” and one Indian fisherman (tindel of the Indian fishing boat) in the Indian waters near Jakhau Port, Gujarat in joint operation of directorate of Revenue Intelligence (DRI) and Indian Coast Guard. suspected narcotics drugs and arrested 06 Pakistani crew members from a Pakistani vessel “AL MADINA” and one Indian fisherman (tindel of the Indian fishing boat) in the Indian waters near Jakhau Port, Gujarat in joint operation of directorate of Revenue Intelligence (DRI) and Indian Coast Guard. The enquiry by DRI revealed that these narcotics were being brought into Gujarat, India from Pakistan and intelligence inputs have revealed that money generated through these seized narcotics was meant for furthering of terrorist activities. The Central Government is of the opinion that Scheduled offence under the under National Investigation Act, 2008 has been committed. The Government of India, Ministry of Home Affairs, CTCR Division North Block, New Delhi, vide Order F.No.11011/ 40/2020/NIA dated 22.05.2020, issued as per provision of subsection (5) of section 6 read with section 8 of the Nation Investigation Agency Act, 2008 and directed the National Investigation Agency to take up the investigation of abovementioned DRI case, Copy of MHA order dated 22.05.2020 is attached as Annexure- ‘A’ and copy of recovery-cum-seizure memo of DRI Zonal Unit, Ahmedabad, Gujarat dated 21.05.2019 is attached as Annexure - ‘B’.” 6. The Special Judge while rejecting the application filed by the appellant – accused herein for bail has observed as under:- “9. The Special Judge while rejecting the application filed by the appellant – accused herein for bail has observed as under:- “9. Considering the chargesheet papers, it appears that it is the case of the prosecution that as per the intelligence input a Pakistani suspected boat carrying narcotic drugs at GPS location 23degree N 30.526 to 68 degree E 05.944 for the last many hours and was waiting for an Indian Fishing Boat for delivering a consignment of narcotic drugs in mid sea, after patrolling, on 21.05.2019 at about 9.15 hours the ICGS Arinjay sighted one Pakistani Ship at position 23degree 28.90 N, 68 degree 05.40 E and as the Pakistani Ship did not respond and started heading towards the water with high speed with the intention to escape from India, the crew members of the Pakistani Ship throw some overboard suspicious bags into the sea and thenafter, the Indian Coast Guard fired more warning shots and compelled the Pakistani Ship to stop at 9.25 hours on 21.05.2019 and thereby, the Pakistani Ship was intercepted at GPS location 23 degree 28.90 N, 68 degree 05.40 E. It is also the case that the recovered bags were opened in the presence of the Officers of the Indian Coast Guard and preliminary testing was done with the help of Field Drug Detection Kit and the test result came to be positive for a narcotic substances and thenafter, when the Captain of the Pakistani Flag Ship -Safdar Ali (A/1) was interrogated he stated about the delivery of the consignment of narcotic drugs at the position 23 degree 18.9N, 68 degree 03.00E and for that VHF Communication Channel No.8 was earmarked on which call has to be given as “Mohammed” and the Indian recipient will respond as “Ramzan”. 10. Considering the charges against the A/7 – it is alleged that the present applicant/accused attempted to take delivery of a huge consignment of narcotic drugs by responding at VHF Channel No.8 which was earmarked to identify Indian recipient and by responding on VHF Channel No.8, A/7 facilitated A/1 for supply and delivery of a consignment of narcotic drugs in India. Considering the charges against the A/7 – it is alleged that the present applicant/accused attempted to take delivery of a huge consignment of narcotic drugs by responding at VHF Channel No.8 which was earmarked to identify Indian recipient and by responding on VHF Channel No.8, A/7 facilitated A/1 for supply and delivery of a consignment of narcotic drugs in India. The ship of A/7 was found at 7 to 8 Nautical Miles from the place where the Pakistani Ship was intercepted by the Indian Cost Guard and thus, it is alleged that the A/7 was sailing in surrounding areas with an intention to take delivery of the consignment of narcotic drugs. 11. The applicant has mainly submitted that he is a fisherman and doing activity of fishing since years and as the month of May-June is the time for fishing of “Ghol” fish and for catching the ‘Ghol’ fish the applicant was there at the location for last 4 to 5 days and that the applicant was only able to get 10 ‘Ghol’ fish though he had done fishing for about ten days. It is also submitted by the applicant for his release on regular bail that the applicant was 8 to 9 nautical miles away from the location of Pakistani Fishing Boat and as per the say of prosecution, the response to random call made at 10.00 hours on Channel no.8 and 16 was received at 12.15 hours when the boat of the applicant was not there in the given location. 12. On perusal of the chargesheet papers, FIR and statements, it appears from the statement of Shri Ganesh Sudhakar Wagh, Radio Operator dated 09.11.2020 that VHF Channel No.16 is used for calling the Fisherman as the said Channel No.16 is International Maritime Channel which is generally used for the communication with the Fisherman and for the contact in between the ship to ship and this Channel is also used for communication if any untoward incidence happens in sea and anybody needs help. 13. Another ground on which the applicant has sought his release on regular bail is that that the message dropped was on the dual watch system and they can hear and receive a call on two channel at a time and no any written record is maintained about the communication made over VHF channel or VHF set. 13. Another ground on which the applicant has sought his release on regular bail is that that the message dropped was on the dual watch system and they can hear and receive a call on two channel at a time and no any written record is maintained about the communication made over VHF channel or VHF set. So far this ground is concerned, it appears from the papers of chargesheet and statement of Pawan Kumar Yadav, Commandant of ICGS Arinjay, dated 23.11.2020 that Dual watch system is system wherein call given on both the channels can be heard without changing the channel and the channel number is reflected on display at the particular point and in the present case, the response was received on Channel no.8 and soon after getting the response, when a call on Channel no.8 was given as “Mohammed-Mohammed-Ramzan-Ramzan for which the opposite side person responded as “Ramjhan Haan Bolo”. In the said statement, it also appears at that time there was only one Indian Fishing Boat and on enquiry, it came to know that the ship was in the sea since four to five days and during this period, the caught fishes were only five which is almost NIL fishing catch. It also appears from the statement that apart from this, the fishing net of the IFB was clean and properly secured. The Indian crew members and tandel/captain was also looking clean with neat cloths. The deck of the Indian Fishing Boat was also neat and clean and also appeared that they never tried for fishing and therefore, it was suspicious that the Indian Ship is in sea since four to five days and not showing activities like fishing. 14. Considering the above facts appearing from the statements and papers of chargesheet, prima facie it appears that the Channel No.16 is earmarked for the communication with the Fisherman and for the contact in between the ship to ship and A/7 in his application for release on regular bail has not given any reasons as to why the need arouse for him to reply on the Channel No.8 as “Ramjhan Haan Bolo” instead of Channel No.16 which is earmarked for communication with fisherman. It has emerged from the statements that the boat as well as the cloths and fishing net of the A/7 were also neat and clean inspite of the fact that they were fishing since 5 days and hence, there appears prima facie involvement of the accused in the offence. 15. Considering the gravity of offence and the prima facie involvement of the accused in the offence as well as the considering the fact that though the chargesheet of the case is filed but the investigation of the case has not concluded yet as further investigation of the case against arrested accused and wanted accused is still in progress, this Court is of the view that at this juncture, there is no need to exercise discretion in favour of the applicant. Hence, in the interest of justice, following Order is passed:-” 7. We have heard Mr. Rutvij Oza, the learned counsel appearing for the appellant – original accused and Mr. Devang Vyas, the learned Additional Solicitor General of India appearing for the N.I.A. 8. Mr. Oza has filed his written submissions as under:- 1. Present appeal is for regular bail for the charges levelled against the present appellant (A-7) under Section 28, 29 and 30 of NDPS Act. [Pg. 11 in the appeal]. 2.(a) Offence Occurred on: 21.05.2019 (b) Present Appellant arrested on: 26.05.2019 (c) Charge sheet/final report filed on: 18.12.2020 (d) Till date charge is not framed by the trial Court 3. The main allegations against the present appellant is described in the charge-sheet [@ Pg.33 - para 18.7 in the appeal]. The present appellant is arrested on the basis of suspicion only for attempt to take delivery of narcotic drugs. 3.1 No charges levelled against the present petitioner under UA(P) Act [Pg. 73 order dated 17.12.2020 by Ministry of Home Affairs]. 3.2 From the bare reading of the whole charge-sheet papers there is no incriminating material is emerging against the present appellant except statement of two witnesses namely (1) Shri Ganesh Wagh (Radio Operator - ICGS Arinjay) and (2) Shri Pawan Kumar Yadav (Captain of ICGS Arinjay). The said aspect is admitted by the investigating agency [at para 5 of reply @ Pg. 117 in appeal]. 3.3 The main allegation against the present appellant is that the appellant has responded as Ramzan on VHF channel No.8. The said aspect is admitted by the investigating agency [at para 5 of reply @ Pg. 117 in appeal]. 3.3 The main allegation against the present appellant is that the appellant has responded as Ramzan on VHF channel No.8. In response to aforesaid allegation, the statement of prosecution witness Shri Ganesh S/o Sudhakar Wagh (radio operator) is required to be considered [@Pg.15 of paper-book] in light of the 1st statement dated 23.05.2019 of the present appellant [@Pg.931 of paper-book]. Relevant portion from the statement of Shri Ganesh Wagh [@ Pg.14 of the paper book] is required to be appreciated. [From Pg.15 of paper-book] "... After the interrogation of Pakistani crew members, Shri Pawan Kumar Yadav, Commanding Officer of ICGS Arinjay came in bridge which is close to radio room and directed me to give call on VHF channel No. 8 and 16 on dual watch system as 'Mohammad-Mohammad-Ramzan- Ramzan'..." "... That is in this case VHF channel is fixed on channel No. 8 and channel No.16 on dual watch system means if anyone give call on channel No.8 and channel No.16 we can heard both the calls without chaning channel. ..." [From Pg.16 of paper-book] "…on being specifically asked about the response got on channel No. 8 I state that the opposite side person is responded as 'Haan Bolo' only and not any other words. …" From the above it is clear that though appellant has replied on channel No.16 as his name is Ramjhan, the prosecution is canvassing that appellant has responded on Channel No.8. From the beginning it is the case of present appellant that he has responded on channel No.16 only. From the statement of aforesaid witness it is emerging from 2nd unnumbered para @ Pg.16 of paper-book that there is no evidence or material and there is no proof to show that appellant has responded on VHF channel No.8. From the statement of aforesaid witness Shri Ganesh Wagh(radio operator) that present appellant has responded as 'Haan Bolo'. [3rd unnumbered para @Pg.15 of paper-book]. Though it is abundantly clear from the statement of Shri Ganesh Wagh (radio operator), however prosecution agency is harping that present appellant has answered as 'Ramzan Haan Bolo'. Therefore, the submission of the prosecution agency is contrary to the record/chargesheet papers. 3.4 The Pakistani Captain Safdar Ali has also given additional information to identify receiver of narcotic drugs [@ Pg. Though it is abundantly clear from the statement of Shri Ganesh Wagh (radio operator), however prosecution agency is harping that present appellant has answered as 'Ramzan Haan Bolo'. Therefore, the submission of the prosecution agency is contrary to the record/chargesheet papers. 3.4 The Pakistani Captain Safdar Ali has also given additional information to identify receiver of narcotic drugs [@ Pg. 905 of paper book]. (a) Person namely 'Mohammed Naseer' will come to take delivery in a boat on which green light will be installed. (b) The boat on which the said person was coming to receive the goods was having 'cabin' in the middle and was having border of 'red color'. It is emerging from the charge -sheet papers that appellant's boat 'Fezane Kirmani' is having blue light and having border of 'saffron color'. The said fact is also admitted by the Investigating agency in the affidavit [@ Pg. 118 in the appeal - from top till 7th line]. Though information provided by Pakistani captain Safdar Alli with regard to receiver's name as 'Mohhamed Naseer', no investigation with regard to the same is emerging from the whole chargesheet papers. 3.5 It is alleged by the prosecution that though the appellant was drifting in the sea for last 5 days and caught 5 Ghol Fish'. It is admitted in the affidavit [para-8 @ Pg.118 in the appeal] that Ghol Fish are costly and sold it to Iram Sea Food, Jamnagar, Gujarat. The invoice of Iram Sea Food is also a part of charge-sheet papers [@ Pg. 205 of paper-book]. It is emerging from the invoice that 5 fishes have earned approx. Rs. 3,46,000/-. 3.6 It is alleged by the prosecution case that the boat was clean. It is submitted that in normal course fishing activity has been carried out in the night hours and specifically when the present appellant was apprehended pious month of Ramzan was going on and therefore all the crew members along with the present appellant was keeping roza and offering namaz in boat itself and therefore, in the morning hours boat will be cleaned. 3.7 It is admitted by the investigating agency in the affidavit in reply that there is no objectionable or incriminating material was found from analysis of mobile seized from the present appellant [para-12 @ Pg. 119 in the appeal]. 3.7 It is admitted by the investigating agency in the affidavit in reply that there is no objectionable or incriminating material was found from analysis of mobile seized from the present appellant [para-12 @ Pg. 119 in the appeal]. Except statements of Shri Ganesh Wagh (radio operator - ICGS Arinjay) and Shri Pawan Kumar Yadav (Captain of ICGS Arinjay) no any other incriminating material is found against the present appellant. 3.8 The investigating agency has admitted that in affidavit [para-4 @ Pg.117 in the appeal] that the present appellant was arrested on the basis of suspicion. In light of the aforesaid aspect, it is submitted that suspicion, however grave it may be, cannot take place of proof or in other words suspicion no matter how strong, cannot and must not be permitted to take place of proof. There is a major difference between something that may be and must be. Hence, in respectful submission of the appellant the case of the prosecution is based on the suspicion only and except that there is no legally admissible evidence/material against the present appellant. Therefore, there is all chances of acquittal and if, bail is not granted that amounts to pre-trial punishment to the present appellant. In view of the aforesaid factual background and settled principal of law, requesting this Hon'ble Court to enlarge the appellant on regular bail on suitable terms and conditions.” 9. Mr. Vyas, the learned Additional Solicitor General of India has filed his written submissions pointing out the incriminating materials going against the appellant – accused. 1. It is submitted that, on 20/05/2019 at 17:30hrs an intelligence input was received by an officer of DRI-Gandhidham, suggesting that the delivery of suspected narcotics drugs was supposed to be done in the mid sea of the Indian Territorial Waters, so the DRI shared the said intelligence input with the Indian Coast Guard mentioning the GPS location where the Pakistani suspected boat was waiting for an Indian boat for delivering a consignment of narcotic drugs. Acting upon the said intelligence input, the Indian Coast Guard ship (ICGS Arinjay) detained a Pakistani Flag Ship “Al-Madina”. The officers of the Indian Coast Guard recovered 194 packets of suspected narcotic drugs from the above referred Pakistani Flag Ship. The officers present on ICGS Arinjay detained one Captain and Five Pakistani Crew members. Acting upon the said intelligence input, the Indian Coast Guard ship (ICGS Arinjay) detained a Pakistani Flag Ship “Al-Madina”. The officers of the Indian Coast Guard recovered 194 packets of suspected narcotic drugs from the above referred Pakistani Flag Ship. The officers present on ICGS Arinjay detained one Captain and Five Pakistani Crew members. Upon, preliminary interrogation, Captain of the Pakistani Flag Ship namely Safdar Ali stated that: “He was aware about the consignment of narcotic drugs loaded in the ship and he was instructed to deliver it on arrival at GPS location North 23.18.9: East 68.03.00. Apart from this to identify the Indian recipient a VHF Communication Channel No.:8 was earmarked on which call has to be given as ‘Mohammed’ and the Indian recipient will respond as ‘Ramzan’.” 2. It is also the case of the prosecution that, the recovered bags were opened in the presence of the officers of the Indian Coast Guard and preliminary testing was done with the help of Field Drug Detection Kit and the test result came to be Positive for a narcotic substance. 3. It is further submitted that, as per the information provided by Captain Ali, the commanding officer of ICGS Arinjay Shri Pawan Kumar Yadav gave directions to Ganesh Wagh, Radio Operator on ICGS Arinjay for giving call as ‘Mohammed – Mohammed – Ramzan – Ramzan’ by hit and trial method, on VHF Channel No.:8 and on Channel No.:16. At about 12:15hrs on the same day i.e on 21.05.2019, a response was received on VHF Channel No.:8 on the name of “Ramzan”. So the Indian Coast Guard Ship reached near one Indian Ship at about 12:45hrs from which response was received on VHF Channel No.:8. The response was given by an Indian Fishing Boat namely ‘Fezana Kirmani’ which was at a distance of 7 to 8 Nautical Miles from the location where Pakistani Flag Ship ‘Al-Madina’ was intercepted. The officers of the Indian Coast Guard present on ICGS Arinjay inquired with the Captain and the other crew members of the Indian Shipping Boat, in which it was found that, Indian Fishing Boat was drifting at the said position on 16th and 17th May and only five fishes were caught by them. 4. The officers of the Indian Coast Guard present on ICGS Arinjay inquired with the Captain and the other crew members of the Indian Shipping Boat, in which it was found that, Indian Fishing Boat was drifting at the said position on 16th and 17th May and only five fishes were caught by them. 4. It is further submitted that, Shri Pawan Kumar Yadav, commandant of ICGS Arinjay in his further statement under Section 161 of CrPC, recorded at NIA has stated that: “In this case initial response was received by Shri Ganesh Wagh, Radio Operator of ICGS Arinjay on Channel No.:8 and so as per directions informed me that the response was received on Channel No.:8. So I immediately reached to the Radio Equipment and I started giving call on Channel No.:8 as ‘Mohammed-Mohammed-Ramzan-Ramzan’ for which opposite side responded as ‘Ramzan Haan Bolo’. He further stated that: “The deck of the Indian fishing boat was also neat and clean and also appeared that no fishing activity had taken place.” 5. It is submitted that, considering the above referred facts, prima facie it appears that, the Channel No.:16 is earmarked for the communication with the Fisherman and for the contact in between the ship to ship and Accused no.7 in his application for release on regular bail has not given any reasons as to why the need arose for him to reply on the Channel No.:8 as “Ramzan Haan Bolo” instead of Channel No.:16 which is earmarked for communication with the Fisherman. It has emerged from the statements that the boat as well as the clothes and fishing nets of Accused No.:7 were also neat and clean inspite of the fact that they were fishing past 5 days and hence, there appears to be prima facie involvement of the accused in the commission of the said offence. 10. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that there is more than a prima-facie case against the appellant – accused so far as his involvement in the alleged offence is concerned. It is difficult for us to accept the argument of Mr. 10. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that there is more than a prima-facie case against the appellant – accused so far as his involvement in the alleged offence is concerned. It is difficult for us to accept the argument of Mr. Oza at this point of time that his client i.e. the appellant – accused is in the business of fishing and at the relevant point of time, he was in fact along with the crew-members in the high sea for the purpose of fishing. From the statements of some of the Officers as referred to above, the prima-facie involvement of the appellant – accused surfaces and the same is sufficient to decline bail to him. 11. In the result, this appeal fails and is hereby dismissed.