Ramjhan Gani Palani vs The National Investigation Agency

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

ORDER

Hima Kohli, J.

1. The petitioner has filed the present petition seeking special leave to

appeal against the order dated 19th August, 2021, passed by the Gujarat

High Court, dismissing the appeal preferred by him against the order

dated 19th 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

Intelligence1 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 Sections 2, 8, 16, 17, 18, 23, 24, 29 and 32 (B) (e) of the Narcotic Drugs Reason:

1 For short ‘the DRI’

Page 1 of 9 Petition for Special Leave to Appeal (Criminal) No. 8942 OF 2021

and Psychotropic Substances Act, 1985 2, relating to seizure of 236.622

Kgs. of Narcotics drug, Heroin near Jakhau Port, Gujarat on 21 st & 22nd

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

which was trying to escape on 21 st 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’

Page 2 of 9 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

Page 3 of 9 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.

4. Learned Special Judge, National Investigating Agency 3,

Ahmedabad rejected the regular bail application filed by the petitioner

vide order dated 19th March, 2021. Aggrieved thereby, the petitioner

preferred an appeal that has been dismissed by the Division Bench of

the High Court of Gujarat by a detailed order dated 19 th 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’

Page 4 of 9 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

Page 5 of 9 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.

Page 6 of 9 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

Page 7 of 9 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.

Page 8 of 9 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.

Page 9 of 9