JUDGMENT : A.Y. KOGJE, J. Rule. Learned Additional Public Prosecutor waives service of rule on behalf of respondent-State. Learned advocate Mr. Kshitij Amin waives service of rule on behalf of respondent-NIA. The appeal is filed by the appellant for following reliefs:- 1. The appeal is filed by the appellant under Section 21 of the National Investigation Act, 2008 for the offences punishable under Sections 120B of IPC, under Sections 8(c), 21(c), 25, 27A, and 29 of the NPDS Act and under Sections 17 and 18 of the Unlawful Activities (Prevention) Act for following reliefs:- (A) HON’BLE COURT be pleased to allow this application and be further pleased to release the appellant on bail in connection with FIR No.1 of 2018 registered with ATS Police Station, Ahmedabad re-registered as RC-26/2020/NIA/DLI with NIA Branch Office, Mumbai, on suitable terms and conditions; 2. Learned Advocate for the appellant has submitted that the appellant has been arrested on 20.10.2018 in connection with FIR No. 1 of 2018 registered with ATS Police Station, Ahmedabad reregistered as RC-26/2020/NIA/DLI with NIA Branch Office, Mumbai for offences punishable u/s. 120B of IPC, section 8(c), 21(c), 25, 27A, 29 of NDPS Act and sections 17 and 18 of Unlawful Activities Prevention act. 2.1 Learned Advocate for the appellant has submitted that the appellant came to be arrested in connection with the above offence. Thereafter, the appellant had approached the court of learned Special Judge (NIA), Ahmedabad by way of NIA Criminal Misc. Application No. 34 of 2023 for regular bail. The respondent no.2 filed affidavit in reply to the application filed by the appellant. It is submitted that learned Special Judge (NIA), Ahmedabad rejected the said application vide order dated 14.09.2023. 2.2 Learned Advocate for the appellant has submitted that there is no recovery or discovery of any narcotic drug from the present appellant and the appellant has not played any role in possession or transportation of any drug much less the alleged movement of drugs. It is further submitted that the appellant was not in “conscious possession” or “constructive possession” of any contraband material. It is further submitted that the investigating agency has failed to establish any link between the appellant and the co-accused from whom the alleged contraband was recovered. It is further submitted that the appellant was not in “conscious possession” or “constructive possession” of any contraband material. It is further submitted that the investigating agency has failed to establish any link between the appellant and the co-accused from whom the alleged contraband was recovered. 2.3 Learned Advocate for the appellant has submitted that the appellant is a trader working under the name and style of M/s Reyaz & Company having GST registration No. 01CGSPM3262J1Z8 with an address of principal place of business at Magam, Budgam, Jammu and Kashmir. The appellant deals in fruit, vegetables, grains, carpet and shawls. 2.4 Learned Advocate for the appellant has submitted that the appellant supplied carpets to Raja Rani Fulkari (Raja Rani Collection Amritsar) on the Guarantee/assurance of Simranjit Singh WA-2 and in return of carpet Raja Rani Fulkari handed over cheques of Punjab National Bank and Yes Bank of various dates. However, all the cheques returned with remarks fund insufficient. 2.5 Learned Advocate for the appellant has submitted that as all the cheques handed over to the appellant were returned with remarks fund insufficient, appellant contacted WA-2 Simranjit Singh, who had brokered the deal between the parties. The said contact was made only with a view to demand payment of pending/bounced cheques and called more than 25 times. Despite the said situation being brought to the notice of the investigating agency, the investigating agency has thought it fit use the said call details for alleged criminal activities. 2.6 Learned Advocate for the appellant has submitted that the only piece of evidence against the appellant is the Test Identification Parade, wherein the witness-Ghanshyambhai Muljibhai Patel identified the appellant on 29.10.2018. However, the statement of said witness- Ghanshyambhai Muljibhai Patel recorded on 20.10.2018 states that the appellant was brought before him along with the police personnel. Therefore, naturally, when the appellant was brought before the said witnesses merely 4 days before the TI parade was conducted, the said witness would identify the appellant. Under the circumstances, the panchnama of TI parade cannot be relied. 2.7 Learned Advocate for the appellant has submitted that the appellant is neither the beneficiary of the alleged transactions/movement of contraband articles nor has the appellant any amount of money. 2.8 Learned Advocate for the appellant has submitted that the chargesheet mentions 500 kg of heroine was being transported. Under the circumstances, the panchnama of TI parade cannot be relied. 2.7 Learned Advocate for the appellant has submitted that the appellant is neither the beneficiary of the alleged transactions/movement of contraband articles nor has the appellant any amount of money. 2.8 Learned Advocate for the appellant has submitted that the chargesheet mentions 500 kg of heroine was being transported. However, there is recovery of only 5 kg as against 500 kg of the contraband articles. The said inflated figures are not backed any material or evidence and the said figures are figment of imagination of the investigating officer. 2.9 Learned Advocate for the appellant has submitted that the provisions of Section-17 and 18 of UAPA have been added only with a view to increase the gravity of the offence without there being any material or evidence supporting the invocation of the said sections. The chargesheet does not reveal name of any terrorist organization or an individual terrorist who was sought to be financed. 2.10 Learned Advocate for the appellant has submitted that the appellant was arrested on 20-10-2018 and has spent more than 5 years and 3 months behind bars. It is submitted that the trial has not shown any significant movement and merely charges have been framed. 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 appellant accused no.5 involved from beginning in the offence 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 pertains to a criminal conspiracy by arrested accused Aziz Abdul Bhagad, Rafik Adam Sumra, Nazir Ahmed, Arshad Sota, present appellant-accused, Razak Adam Sumra, Karim Md. Siraj and Sunil Vithal Barmase-accused Nos.1 to 8 with appellant A-5 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 smuggled into Gujarat, India by Abdul Aziz Bhagad (A-1) and others between 09.03.2018 to 31.05.2018. Siraj and Sunil Vithal Barmase-accused Nos.1 to 8 with appellant A-5 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 smuggled into Gujarat, India by Abdul Aziz Bhagad (A-1) and others between 09.03.2018 to 31.05.2018. 3.1 It is submitted that in furtherance of said conspiracy the said illegal stock of narcotic drugs (heroin) accused Rafik (A-2) and Shahid (WA-1 now A-11) has further delivered 60 Kg narcotic drugs (heroin) to the aides of Simranjit Singh (WA-2) i.e. Nazir Ahmad (A- 3) & Manzoor Ahmad (A-5) (appellant-accused) at Unjha, Gujarat. On 31.03.2018, Rafik (A-2), Arshad @ Raju Dubai (A-4) and Shahid (WA-1 now A-11) further delivered 35 Kg of narcotic drug heroin to the aide of Simranjit (WA-2) i.e, Nazir (A-3) & appellant Manzoor A-5 at Unjha, Gujarat. Thereafter on 31.05.2018 from the illegal stock of narcotic drug heroin, Rafik (A-2) and Shahid (WA-1 now A-11) further delivered 200 Kg of heroin to WA-2, A-3 and A-5 at a rented godown of Simarnjit (WA-2) located at No.6, Sharnam Warehouse in Aithor Village, near Unjha, Gujarat. 3.2 It is submitted that being conspirator of the said criminal conspiracy Accused Nazir (A-3) and appellant Manzoor (A-5) on the direction of Simranjit (WA-2), hid the stock of 295 Kg of narcotic drug heroin in the sacks of Cumin and Suva (Seeds) and sent the said stock in two trips to Simranjit (WA-2) in Amritsar, Punjab through Akshar transport, Unjha, Gujarat. 3.3 It is submitted that furthermore on 16.03.2018 as per the direction of A-4, A-2 took out three bags of narcotic drugs heroin i.e. 60 Kg of heroin from his godown with the help of WA-1 and kept it in his Ritz car, having registration No, GJ-12-CD-6819. He then delivered it to A-3 & appellant A-5 (aides of WA-2) at an open place, behind Mahadev Mandir, Near APMC Market, Unjha, Gujarat. A-3 and A-5 are associates of WA-2. He then delivered it to A-3 & appellant A-5 (aides of WA-2) at an open place, behind Mahadev Mandir, Near APMC Market, Unjha, Gujarat. A-3 and A-5 are associates of WA-2. 3.4 It is submitted that in furtherance of the said conspiracy A-3 & appellant A-5 purchased three sacks of Suva (seeds) each containing 50 Kg of Suva (seeds) i.e. total 150 Kg of Suva (seeds) from Rajeshkumar Ishwarlal Patel who is the owner of Shital Traders and 30 sacks of Cumin, each sack containing 30 Kg i.e. 900 Kg of cumin from Ghanshyam Muljibhai Patel who is the owner of Navdurga Trading Company. Nazir Ahmed A-3 & appellant A-5 then concealed 60 Kg of narcotic drugs heroin in the three sacks of Suva (seeds) and further transported it from APMC Market, Unjha, Dist. Mehsana, Gujarat through Akshar Transport located at Unjha, Gujarat to Amritsar, Punjab in two trips i.e. on 16.03.2018 & on 31.03.2018. The narcotic drugs heroin was transported by concealing the same in the bags of Suva (seeds). The facts of transportation has been proved through the records of Akshar Transport and statement of witnesses. Learned ASG as lastly submitted that the present appellant had earlier preferred an appeal for bail before this Court how ever, after elaborate hearing did not entertain the appeal hence the appellant withdrew the previous appeal and thereafter there is no change in the circumstance for the appellant to file an appeal herein. 4. Heard learned advocates for the parties and perused the documents placed on record. It appears that the appellant is in custody since 20.10.2018. 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 (appellant-accused), Razak Adam Sumra, Karim Md. Siraj 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 Kungdaaccused No.12. 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 Kungdaaccused No.12. 4.1 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 (appellant-accused), 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. 5. That the Ministry of Home Affairs, Government of India, considering 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. 6. 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 (appellant-accused), Razak Adam Sumra, Karim Md. Siraj 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), 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. 7. 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. 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-accused No.11 and Rafik Adam Sumra-accused No.2 to Nazir Ahmad-accused No.3, Manzoor Ahmad-appellant/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-accused 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-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-accused No.7 agreed for of monetary consideration. 8. Investigation has also revealed that, the accused Karim Md. Siraj-accused No.7 accepted the offer of Shahid Kasam Sumraaccused 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) 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) 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. Subsequently, Karim Md. Siraj (A-7) 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), 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. 9. 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). Then the accused Karim Md. Siraj (A-7) & 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. 10. 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. 10. 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) & 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 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), 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), 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. 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 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). 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 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. 11. 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 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 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) is the owner of said vehicle. The investigation has revealed that the accused Sunil Vithal Barmase (A8) and accused Karim Md.Siraj A-7 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. Patel Angadia, Kutch, and R. M.Angadia, Ahmedabad and through the receipts produced by the witnesses. 11.1 The NIA on 24.05.2021, filed a supplementary charge-sheet against the present accused Sunil Vithal Barmase (A-8) in the Spl. This fact has been ascertained through the statement of witness of NR & Company, V. Patel Angadia, Kutch, and R. M.Angadia, Ahmedabad and through the receipts produced by the witnesses. 11.1 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), (17) Sunil Vithal Barmase (A-8) & (18) Indresh Rambachan Nishad (A-9). 12. 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. 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 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. 12.1 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, a SLP in the Hon’ble Supreme Court of India has been initiated by NIA and is pending. 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. 13. The role played by the appellant herein as per the prosecution is that he got involved in the conspiracy on the directions of wanted accused No.2-Simaranjit Singh. He was given the responsibility to receive the consignment of narcotic drugs from Rafik Adam Sumra A-2 and concealed the same at the rented godown located at Unjha, Gujarat. On the direction of wanted accused No.2-Simaranjit Singh S/o. Sarabjit Singh Sandhu he twice received the consignments of narcotics drugs along with Nazir Ahmed A-3 from Rafik Adam Sumra A-2 and wanted accused No.1. 13.1 After taking the delivery of narcotic drugs, he along with the present appellant-accused stayed in Hotel Carva, Unjha, Gujarat for the period i) 16.03.2018 to 17.03.2018; ii) 28.03.2018 to 04.04.2018; and iii) 28.05.2018 to 01.06.2018. At Unjha, Gujarat they (Nazir Ahmed & present appellant-accused A-5) with the intention of smuggling drugs purchased cumin and hid the stock of narcotic drugs in the sacks of cumin and loaded it in the truck of Akshar Transport. Then on the directions of wanted accused No.2- Simaranjit Singh they sent all the consignment to Amritsar, Punjab through Akshar Transport under the pretext of delivering cumin. 14. In furtherance of the conspiracy after sending the consignment of drugs concealed in Cumin bags to Amritsar, Punjab, the accused used to visit Delhi along with present appellant accused for getting confirmation about the delivery of heroin consignment. 14. In furtherance of the conspiracy after sending the consignment of drugs concealed in Cumin bags to Amritsar, Punjab, the accused used to visit Delhi along with present appellant accused for getting confirmation about the delivery of heroin consignment. As a part of cross border international conspiracy by taking delivery of narcotic drugs with the help of Nazir Ahmed (A3) and wanted accused No.2-Simaranjit Singh from Rafik Adam Sumra-accused No.2 and wanted accused No.1 to Amritsar, Punjab, India. The smuggled large quantity narcotic drugs cost appox. 1500 crores in International Market and these proceeds of illicit drugs proves their link with the International Narco Terror Gang operating from Pakistan, Dubai and India. 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, over and above arguments by respective Advocate for the appellant a joint arguments are made by both the sides regarding invoking UAPA as well as the twin test under Section 37 of the NDPS Act. 16.1 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 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 coaccused 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. 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. 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 Punjab 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. 21. Lastly, in rent decision of the Apex Court in case of Gurwinder Singh v/s. State of Punjab 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: 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. 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. 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. ? ? 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.” 22. The Court has perused the order passed by the Special Judge, NIA in NIA Criminal Misc. Application No.34 of 2023 dated 14.09.2023 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-5.1 of the order. 23. 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. 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-5.1 of the order. 23. 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. 24. 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.