Gujarat High Court

Fardin Amery @ Fardin Khan Omer Amery vs State Of Gujarat on 12 August, 2025

Author: Ilesh J. Vora

Bench: Ilesh J. Vora

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                              R/CR.A/471/2025                             ORDER DATED: 12/08/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL (FOR QUASHING OF ORDER/STAY) NO. 471 of
                                                   2025

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                                       FARDIN AMERY @ FARDIN KHAN OMER AMERY
                                                        Versus
                                               STATE OF GUJARAT & ANR.
                       ==========================================================
                       Appearance:
                       MR AFZALKHAN A PATHAN(11420) for the Appellant(s) No. 1
                       VALIMOHAMMED PATHAN(6383) for the Appellant(s) No. 1
                       KSHITIJ M AMIN(7572) for the Opponent(s)/Respondent(s) No. 2
                       PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                               and
                               HONOURABLE MR.JUSTICE P. M. RAVAL

                                                      Date : 12/08/2025

                                              ORAL ORDER

(PER : HONOURABLE MR.JUSTICE P. M. RAVAL)

1. The present appeal is preferred by the appellant -

original accused No.7 under the provisions of Section 21(1)

of the National Investigation Agency Act, 2008 read with

section 528 of Bhartiya Nagarik Shuraksha Sanhita 2023

against the order dated 19.3.2024 passed in NIA Special

Case No.01 of 2022 by the learned Special Judge, NIA, City

Sessions Court, Ahmedabad.

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2. The facts in brief qua the present appellant are as

follows:

2.1 The allegation against the present appellant is

that he played role of coordinator in facilitation of

consignment of heroin laced talc stones imported into India

in December 2020 through Mundra Port, Gujarat by the

firm named M/s Magent India. The offence came to light

when the Directorate of Revenue Intelligence Gandhidham

Unit registered the case which pertains to seizure of

2988.21 kg of heroin alleged to have been originated from

Afghanistan and routed through Bandar Abbas, Iran. The

said drugs were smuggled to India concealed as talc powder

in a consignment addressed to one M/s Ashi Trading

Company. Based on the intelligence input, NIA took over

the case and FIR came to be registered on 10.6.2021 under

the NDPS Act and UAPA. The NIA has further alleged that

the present appellant had made arrangement for off-loading

the drugs consignment of M/s Ashi Trading Company at

Khasra Nos.712-713 located at Alipur, Delhi and recovering

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16.105 kgs of powdery substance when the raid was

conducted on 17.9.2021 came to be recovered from the floor

sweepings. However, warehouse was found empty. Thus, it

is the case of the prosecution that the present appellant has

assisted WA 4 along with Pradeep Kumar - A5, Mohammad

Hussain - A6 in off-loading consignment at the said

warehouse. It is also the case of the prosecution that FIR

bearing No.90 of 2021 registered at Garhshankar Police

Station, District Hoshiarpur, Punjab is also connected with

the present case inasmuch as regarding the purification and

supply of heroin in furtherance of larger conspiracy of the

present case. It is also found during investigation that in

July 2021, Punjab Police had raided a farmhouse at Sainik

Farm, Delhi resulting in recovery of 20.700 kg of heroin and

four Afghan nationals came to be arrested on the

instructions of Mohammad Hussain Dad (WA 1) and also

further arrested 13 accused from UP and Delhi who used to

collect and sent the drugs money to Hussain Dad (WA 1) in

Afghanistan.

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3. Learned advocates Mr.Vali Mohammad Pathan,

Mr.Afzal Pathan and Mr.Saurav Sharma appearing for the

appellant - original accused No.7 would contend that :

(a) That learned Special Judge has materially erred

in appreciating the fact that there is nothing on record to

support the presumption in view of the fact :

                                        (i)                That concerned consignment which

                                        came          to    India     before   14.9.2021         contains

                                        contraband;



                                        (ii)               That Fardin Amery was connected with

                                        the trade of contraband substance;



                                        (iii)              That Fardin was ever recipient of any

proceeds from the trade of contraband substance;

(iv) That Fardin was involved in criminal

conspiracy considering that there is no evidence

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of communication between Fardin and other co-

accused in relation to contraband substance.

(b) That learned trial Judge has erred in holding that

UAPA Act 1967 is applicable in the present case. However,

grave or heinous nature and extent of crime may be and has

thus broadly argued on two limbs :

(i) That no case is made out against the

appellant under section 8(c), 21(c) and 29 of the

NDPS Act;

(ii) That no case is made out against the

appellant under sections 17 and 18 of the UAPA

Act 1967.

fact that consignment was transported to Alipur Godown on

23.6.2001 containing contraband and secondly, the

appellant has knowledge about the same. However, no

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witness states to that effect and the prosecution has artfully

arranged group of innocuous and innocent facts together in

such a manner that it gives an impression of a larger

criminal conspiracy and thereby wrongly implicated the

present appellant.

(d) That statement of Arfan Baig, a truck driver and

other witnesses would reveal that some white colour

powdery substance was delivered in Alipur godown.

However, on perusal of the invoice dated 21.5.2021 and the

packaging list annexed to it would reveal that the same was

being imported "semi processed talc stones" which would

have same colour properties.

(e) That on perusal of the statements of Mayank

Bhanushali dated 21.9.2021 and Naveen Kumar dated

9.3.2021, it is clear that two jumbo bags were checked at

the time of custom clearance did not contain any

contraband in it.

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(f) That as per the statement of Said Mahmood

Hussaini - accused No.6 recorded on 18.9.2021, a detailed

scrutiny of such bald allegations becomes even more

important since as per the said statement on the

instructions of wanted accused - WA No.5 i.e. Esmat Ullah

Honari, accused No.6 arranged for Alipur Godown through

Mr.Pradeep Kumar - accused No.5 and the keys of the

godown were handed over to them by Rajkumar Dhankar on

17.6.2021 and from that day onwards till 30.6.2021 the

keys remained with Esmat Ullah Honari exclusively.

Thereafter, he went to Afghanistan and had hidden the key

at a spot which was exclusively in his knowledge along with

his unknown associates. Thus, access of godown from

23.6.2021 to 14.9.2021 i.e. for 83 days was exclusively with

Esmat Ullah Honari and his unknown associates. However,

no investigation has been carried out as to what happened

during these 83 days.

(g) That it cannot be said with utmost precision that

16 kgs of heroin recovered on 17.9.2021 are remnants of

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consignment which was loaded on Alipur godown on

23.6.2021. Thus, it is settled law that if two views are

possible, one pointing to the guilt of the accused and the

other towards his innocence, the one which is favourable to

the accused must be adopted.

(h) That learned trial Judge materially erred in not

appreciating the fact that there is no iota of material on

record to prima facie support the allegation that prior to

June 2021, co-accused persons and the present appellant

were involved in importing contraband from Afghanistan.

(i) That it is clear from the record that the appellant

had no knowledge about illegal working of wanted accused -

WA 4 since it was always represented to the appellant that

WA 4 or Hussain Shah all were involved in exporting or

importing of different goods like dates, dry fruits etc.

(j) That the appellant was not in possession of keys

of Alipur godown and had no access to the same.

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(k) That there is nothing on record to suggest that

besides acting as a driver of WA 4 and providing him

support for unloading the consignment that came in a

truck, the appellant had any real knowledge that

consignment containing contraband.

(l) That there is nothing on record to suggest that

post July 2021, the appellant had contact with WA 4 or any

other co-accused and therefore, recovery of contraband

substance on 14.9.2021 cannot be attributed to the

appellant.

(m) That appellant met WA 4 in one of the social

gathering of Afghan people and as the appellant was

working as a translator and due to outbreak of pandemic,

the appellant was not doing financially well and hence

joined hands with WA 4 and started travel agency in the

name and style of M/s Blue Sky Travel Agency. This aspect

would be clear from the statement of Farshid Amery dated

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19.9.2021. Thus, as Afghan nationals struggling for money

owing to the outbreak of pandemic and sudden halt in flow

of income, the basis of opening a travelling agency with WA

4 - Najibullah Khalid because of his successful experience

in export and import of goods which was evident from his

lavish lifestyle.

(n) That as per the statement of Farshid Amery it

was communicated to the appellant and his brother that

Hussain Shah is a businessman engaged in export and

import of dry fruits, coals, plastic portable coolers in

different countries. On this pretext, a godown in Alipur was

being looked for. Further, the use of term "mehman" as

stated in the statement shows that even the real identities of

the people visiting Hussain Shah were to conceal from the

appellant and his brother. That even from the statement of

the appellant herein, it is clear that he was ignorant about

the consignment that came to Alipur on 23.6.2021 till last

minute since there was no previous communication with

WA 4 about arrival of consignment on 23.6.2021 and that

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consignment did not even belong to WA 4, but that of

Hussain Shah for whom the appellant had mere

acquaintances.

(o) That the statement of Said Mahmood Hussaini -

accused No.6 recorded on 18.9.2021 clearly states that

godown keys were in exclusive possession of WA 5 - Esmat

Ullah Honari.

(p) That the appellant has not played to facilitate

escape of WA 4 in light of the statement of Haroon Shirzad

dated 30.11.2021 wherein he has mentioned that he had

booked flight tickets from Delhi to Kabul on 12.8.2021

(q) That except the present appellant knowing AW 4

and were connected as business partners and there is no

incriminating material against the present appellant. That

even with Hussain Shah, the present appellant had called

thrice only on 1.7.2021 and 2.7.2021. Thus, there is

nothing on record to suggest that post July 2021, the

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appellant was part of any conspiracy pertaining to drug

trafficking.

(r) That there is no evidence to the effect that WA 4

or WA 9 are persons or members of a terrorist organization

or a members of a terrorist gang or individual terrorists who

are involved in "terrorist activities" as defined under section

15 of the UAPA Act 1967. That from the chargesheet and

even from the supplementary chargesheet, there is no even

iota of material on record to suggest that WA 4 or any other

co-accused are individual terrorists and are involved in any

terrorist activities. That the prosecution has relied on the

statement of Farshid Amery dated 9.3.2022 with regard to

Hussain Shah as told by Sameer Ahmadi that Hussain

Shah is having good support of Taliban and that nobody can

approach Hussain Shah without having good connection

with Taliban. That Sameer Ahmadi further stated to

Farsheed Amery that it would be very difficult to get access

to Hussain Shah now and I am aware that Taliban is

indulging in terrorist activities in Afghanistan with active

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support of terrorist group from Pakistan and hence, there is

every possibility that Hussain Shah is also part of such

terrorist group. However, this part of statement was missing

in the previous statement dated 19.9.2021 and 30.11.2021

coupled with the fact that they are inadmissible being

hearsay in nature and alleged connection of Hussain Shah

with Taliban is not in personal knowledge of Farshid Amery

but is dependent upon what Sameer Ahmadi told him.

(s) Learned advocate for the appellant has relied on

the judgment of the Honourable Apex Court in the case of

Yakub Abdul Razak Memon Vs State of Maharashtra

though CBI, Bombay, reported in (2013) 13 SCC 1 to point

out as to what terrorism means since it is not defined in

UAPA Act 1967. Thus, it is argued that intent or likelihood

of an act threatening (i) the security of the State, described

variously in section as unity, integrity, security, economic

security, sovereignty and (ii) of striking terror which has

been outlawed by the said Act and is argued that such an

act is not made out in the present case.

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(t) It is further argued that as held by the

Honourable Apex Court in A.K.Roy Vs Union of India and

others reported in (1982) 1 SCC 271 it is sacrosanct

principle of penal provisions that they must be construed

strictly and narrowly to ensure that a person who was not

within the legislative intendment does not get roped into a

penal provision. Also, the more stringent a penal provision,

the more strictly it must be construed and has argued that

applying strict and narrow construction, no case is made

out against the appellant.

(u) That because the Honourable Apex Court in the

case of Zameer Ahmed Laitful Rehman Sheikh Vs State

of Maharashtra reported in (2010) 5 SCC 246 held that

"the essential element in both is the challenge or threat or

likely threat to the sovereignty, security, integrity and unity

of India and that while Section 15 requires some physical

act such as use of bombs and other weapons etc. Since no

such physical act is attributed to present accused, present

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appeal be allowed.

(v) That applying the aforesaid principle in the

present case, there is no material on record that the

appellant or any of the co-accused has even intended for the

same. Thus, simpliciter act of importing an assignment of

huge quantity of narcotics by the co-accused without it

being shown that the same was done to generate revenue for

the terrorist acts which poses a challenge to the sovereignty,

unity, integrity and the very existence of the nation will not

fall under section 15 of UAPA Act. Thus, it is argued that

once section 15 is not attracted, corollary would be section

17 of the UAPA Act will have no applicability in the facts of

the present case.

(w) That entire record is completely devoid of any sort

of clear and conscientious conduct of the appellant which

would suggest that he was part of larger conspiracy

attracting section 120-B of IPC, section 29 of the NDPS Act

or section 18 of the UAPA Act. Learned advocate has relied

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upon the decision in the case of Kehar Singh and others

Vs State (Delhi Administration), reported in (1988) 3 SCC

609 to contend that it is essential that the offence of

conspiracy requires some kind of physical manifestation of

agreement and that relevant act of conduct of parties must

be conscientious and clear to mark their concurrence as to

what should be done. The concurrence cannot be inferred

by a group of irrelevant facts artfully arranged so as to give

an appearance of coherence. The innocuous, innocent or

inadvertent events and incidents should not enter the

judicial verdict. Learned advocate for the appellant has

further relied upon the decision in the case of State (NCT of

Delhi) Vs Navjot Sandhu, reported in (2005) 11 SCC and

has argued that a few bits here and a few bits there on

which the prosecution relies cannot be held to be adequate

for connecting the accused in the offence of criminal

conspiracy. The circumstances before, during and after the

occurrence can be proved to decide about the complicity of

the accused. Thus, it is argued that in absence of

conspiracy charge, recovery made from other co-accused

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persons cannot be attributed to the appellant herein. That

entire case of the prosecution is based on baseless

presumption and inferences which have been drawn by

taking a few bits here and a few bits there and thus, the

appellant deserves to be discharged.

(x) Learned advocate for the appellant has further

relied upon a decision in the case of Dilawar Balu Kurane

Vs State of Maharashtra, reported in (2002) 2 SCC 135

to argue that if two views are equally possible and the Judge

is satisfied that the evidence produced before him while

giving rise to some suspicion but not grave suspicion

against the accused, he will be fully justified to discharge

the accused. Thus, it is argued that the present appeal be

allowed and the impugned order dated 19.3.2024 passed by

the learned Special Judge, NIA dismissing the discharge

application of the appellant being NIA Special Case No.1 of

2022 is required to be quashed and set aside.

4. On the other-hand, learned advocates Mr.Kshitij

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Amin, Mr.Sandip Sadavarte along with Mr.Girish Gotwal,

Dy.SP, NIA are present for the respondent authorities.

Learned advocate Mr.Sandip Sadavarte has relied upon the

affidavit-in-reply filed on behalf of the NIA and has

contended :

(a) That the present appellant along with WA 1, WA

4, A5, A6, A32, A35 and WA 7 have conspired and

facilitated them in renting godown at Alipur, Delhi in his

name for storage of drugs consignment in lieu of monetary

consideration.

(b) That the present appellant accused assisted A5,

A6, WA 4 and WA 1 in unloading and storing drugs

consignment sent from Afghanistan to Mundra which was

further transported to Alipur, Delhi in June 2021.

(c) That CDR would clearly establish interaction

between WA 4 (Najibullah Khalid) and witness Digvijay

Singh Rahore to confirm warehouse address i.e. Khasra

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No.712-713, Main Phirni Road, Village Alipur, Delhi for the

delivery of the first narcotics drugs consignment which was

received by WA 4. That mobile tower location of CDR would

reveal that present accused along with WA 4 (Najibullah

Khalid), WA 1 (Mohammad Hasan), A5 (Pradeep Kumar), A6

(Said M.Hussaini) and present accused Fardin Amery were

present together at the godown at Alipur, Delhi for receiving

and unloading first consignment on 23.6.2021 which was

delivered by the witness driver whose mobile location was

also found at the same place, date and time.

(d) That mobile of the present appellant on

23.6.2021 was also found in the tower location at godown at

Alipur, Delhi for June 2021 consignment.

(e) That above stated facts are also corroborated

from the statement of four protected witnesses who have

revealed and established all the relevant incriminating facts

in their respective statements under sections 161 and 164

of CrPC.

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(f) That call history between the present appellant

with WA 4 (Najibullah Khalid) between 5.10.2020 and

13.7.2021 is 286 calls in number. That call history between

WA 1 (Mohammad Hussain) and present appellant between

1.7.2021 and 2.7.2021 is 3 calls in number.

(g) That charges against the present appellant are for

the offence under section 120-B of IPC read with sections

8(c), 21(c) and 29 of the NDPS Act and also under sections

17 and 18 of the UAPA Act 1967. That during investigation,

it is revealed that as a part of larger conspiracy, semi

processed talc stones were sent in six consignments across

India through Culcatta and Munda Port by the same co-

conspirator sender from Afghanistan thgough Bandar Abbas

Port of Iran to a single person - co-conspirator. Thus,

consignments were always delivered to a single person who

is currently at large. Only the intermediaries such as the

Importer, Customs House Clearing agent, transporter were

different in each of these transactions.

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(h) It is further argued that even reference numbers

have not been changed in the certificate of origin which

clearly shows the unlawful intention of the sender. In this

context, it is submitted that despite having knowledge of

illegal activities by the appellant along with co-accused

deliberately with an illegal intention kept accused No.2

signing the documents and in turn accused No.2 kept on

persistently and knowingly kept signing documents related

to the said consignments of contraband imported from the

firm M/s Aashi Trading Company. It is submitted that on

9.6.2021 and 11.9.2021 similar type of consignments

declaring goods as semi processed talc stones were sent

from Afghanistan to Mundra Port, Gujarat by consigner -

M/s Hasan Husain Limited, Afghanistan (A-37) via Bandar

Abbas Port, Iran which were imported by firm of accused

No.32 and were unloaded at Delhi in warehouse at Alipur

hired in the name of accused No.5 (Pradeep Kumar) by

accused No.6 (Said Mohammad Hussaini) as per the

direction of WA 5 - Eshmat Ullah Honari and was received

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at the warehouse by WA 4 (Najibullah Khalid) wherein

Pradeep Kumar - A-5, Said Mohammad Hussaini - A6 and

Fardin - present accused had assisted WA 4 (Najibullah

Khalid) in off-loading of consignment at the said warehouse

for sending proceeds of crime to Afghanistan to the tune of

Rs.78.6 crores.

(i) That similarly, another consignment on

15.6.2021 loaded at village Khera Kalan, Industrial area,

PS-Alipur, Delhi hired in the name of WA 4 (Najibullah

Khalid) was received by WA 4 which contains heroin laden

bituminous coal consignment along with WA 1, A7 at the

said warehouse wherein the present appellant also had

assisted in off-loading consignment. That no order was

placed for semi processed talc stones neither by M/s Ashi

Trading company nor at Hasan Husain Limited,

Afghanistan. That importer M/s Ashi Trading Company did

not have a buyer for the declared goods i.e. semi processed

talc stones yet through accused Nos.1, 2 and 3 imported the

same. Further M/s Ashi Trading Company through accused

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No.3 along with accused Nos.1 and 2 did not invest a single

penny and all that was done was through the "TALC" groups

created on whatsapp for furthering conspiracy for smuggling

of contraband heroin in the guise of talc stones. That

importer M/s Ashi Trading Company through the present

appellant along with co-accused Nos.1, 2, 3, 5, 6, WA-4,

WA-5 were acting as a frong in India for the overseas

supplier Hasan Husain Limited, Afghanistan (WA1 and WA

2) through WA 3, WA 4 and others.

(j) That all the customs duty, clearance charges,

port charges, inland transportation from Mundra to Delhi

etc. were also financed by the overseas supplier. That Amit

is a fictitious person and likewise consignee Kuldeep Singh

as mentioned in GST invoice is also fictitious person.

Neither of the persons were found linked to the warehouse

where the goods were to be delivered. Neither A1, A2 nor A3

received any money from so called Amit or Kuldeep Singh

against the projected sale shown in the GST invoice. Rather

money was received by A1 in connivance with A3 through

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hawala operator from WA 1 (overseas supplier) for squaring

of the deal.

(k) That there are ample evidence on record to show

that funds were collected through hawala route. That the

drugs collected by DRI Delhi was through floor sweeping

from warehouse at Khasra Nos.712 and 713, main Phirni

road, near Shivam dharm Kanta, Alipur, Delhi which

contained traces of heroin since the actual consignment was

already disposed from the premises by said international

drugs cartel due to which A5, A6 and the present appellant

- A7 came to be arrested. Moreover, CRCL clearly revealed

that the powdery substance collected from floor sweepings

at the said godown contained traces of heroin. That recovery

of 16.405 kgs of heroin from floor sweepings from the hired

godown at Khasra Nos.712-713, Alipur, Delhi are admittedly

remnants of heroin of first consignment of June 2021 which

was taken on rent by WA1, WA 4, A5, A6 and their co-

accused persons including A1, A2, A3, present appellant

and others. That there are reasons to believe that the

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present appellant is allegedly involved in such offences

which is huge in quantity and there being ample evidence

on record to prove involvement of the present appellant has

argued to reject the present appeal.

(l) Lastly, it is argued that witnesses have been

examined almost 29 in numbers and 80 witnesses have

been purning down and hence trial having commenced, it is

argued to reject the appeal.

5. Heard learned advocates for the respective

parties. We have perused the documents placed on record,

more particularly, chargesheet and evidence against the

present appellant - accused No.7.

6. The documents placed before us reveal that the

present offence involves cross border smuggling of narcotics

drugs in huge quantity and such activities are undertaken

by involving number of persons across India with proper

networking and each particular being assigned a specific

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role with the use of technology and thus there exists pattern

of covert coordination, fictitious entities and barter based

compensation which are main features as pointed out by

the prosecution. The appellant herein is facing serious

charges which have grave societal ramifications including

the facilitation of cross border drugs trafficking operated in

organized manner which ultimately is liable for degradation

of public health at large. If the seizure in connection with

the consignment in question is taken into consideration, the

prosecution claims to be one of the largest heroin seizure

which is valued at 21,000 crores in Indian rupees which

involves sophistication of operation involving foreign

syndicates, shell firms, medical visas under the pretext of

treatment, use of whatsapp (social media) and false

documentation which shows gravity of the offence which is

far beyond routine NDPS cases.

7. The present appeal is against the order passed by

the learned Special NIA Court rejecting the application of

discharge filed by the present appellant accused. In this

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regard, principles governing the framing of charge and

discharge laid down by the Honourable Apex Court in the

case of Sajjan Kumar Vs CBI reported in (2010) 9 SCC

368 are as under:

"17 On consideration of the authorities about the scope of section 227 and 228 of CrPC, the following principles emerge:-

(i) The Judge while considering the question of framing the charges under section 227 of the CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

(iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to

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consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of sections 227 and 228 the Court is required to evaluate the material and documents on record with a view to find out if the

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facts emerging there from taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."

Thus, while considering the question of framing of charges,

learned trial Court has power to sift and weigh the evidence

for the limited purpose of finding out whether or not a prima

facie case against the accused has been made out or not to

determine prima facie case would depend upon the facts of

each case and there cannot be a rule of any universal

application where the materials placed before the Court

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discloses grave suspicion against the accused which has not

been properly explained, the court will be fully justified in

framing a charge against the accused. It is also well settled

principle that at the stage of framing of charge, the evidence

cannot be gone into meticulously. It is also well settled

principle that whether the case is based on direct or

circumstantial evidence, charge can be framed if there are

materials showing possibility of commission of offence by

the accused as against certainty. It is also well settled

principle that the Court should not conduct roving enquiry

or make an attempt to weigh the evidence as if he was

conducting a full-fledged trial. Thus, there must exist clear

reason showing the absence of grave suspicion at the stage

of framing the charge, the Court should not discharge on

the guilt or innocence of the accused nor the Court is

expected that the prosecution should provide evidence that

conclusively prove the guilt before trial began. Thus, strong

suspicion supported by the material evidences is sufficient

to frame the charge if leads to conclusion that the accused

might have committed the offence.

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8. In the present case, we have also gone through

the impugned judgment. On perusal of papers placed before

us and considering the nature of evidence collected by the

Investigating Agency and the details stated in the affidavit

including the statements of the protected witnesses and the

statements recorded under section 161 of CrPC and after

having found prima facie evidence which reveals that the

present appellant along with A1, A2, A3, A5, A6, WA1, WA4,

WA5, WA7 and other co-accused running drugs cartel

through the firm i.e. M/s Ashi Trading Company coupled

with the fact that the present appellant accused has worked

as translator / interpreter in various hospitals at Delhi NCR

and opened travel agency in the name and style of M/s Sky

Blue Travel Agency in New Delhi along with WA4 (Najibullah

Khalid) as his partner. The documentary evidences, prima

facie, reveal that the present appellant was identified as a

partner of WA 1 and 4 and there is also enough material on

record to prima facie point out the presence of accused No.7

- appellant herein in facilitating unloading of drugs at

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warehouse Khasra Nos.712-713, Alipur, Delhi where WA 1,

WA4, WA5 and A6 were present which also prima facie is

revealing from the call details record (CDR) analysis report

regarding location of the tower at the place of warehouse.

The present appellant had also provided logistic support to

WA 4 (Najibullah Khalid) by introducing WA 1 to real estate

agent in Lajpatnagar who provided rental accommodation to

WA1 in January 2021 and introduced WA 4 to travel agent

in Lajpatnagar who in turn arranged air tickets for WA4 and

his entire family against cash payment. Thereafter, WA 4

along with his family fled from India in August 2021 post

drugs seizure by the Punjab police at rented farmhouse in

Sainik Farm.

9. This Court has also gone through various

statements relied on by both the parties and the papers of

chargesheet, we are in concurrence with what has been held

by the learned Special Judge while rejecting the discharge

application and having found prima facie the case which

creates grave suspicion, more particularly, the present

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appellant accused having talked with WA 4 (Najibullah

Khalid) between 5.10.2020 and 13.7.2021 running into 286

number of calls and with WA 1 (Mohammad Hussain) three

times from 1.7.2021 and 2.7.2021 coupled with the fact

that location of the present appellant at farmhouse, Khasra

Nos.712-713, Alipur, New Delhi coupled with the fact that

manner in which the entire modus operandi through which

drugs syndicate has operated, the appellant's role prima

facie surfaces from the record of the case attracting the

charges levelled against him, more particularly, when

section 120-B of IPC is also invoked by the NIA and at this

stage, we do not find any basic infirmities from the

documents placed before us for not attracting the alleged

offences.

10. As far as attracting the provisions of UAPA Act

1967 are concerned, the statement of Farshid Amery dated

9.3.2022 cannot be given go-bye at the stage of framing the

charge treating it as hearsay evidence. The question of

admissibility or inadmissibility or that of hearsay in nature

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cannot be gone into at this juncture for the reasons already

stated hereinabove that while framing the charge, mini trial

is not required to be conducted.

11. As far as judgments relied upon by the appellant

i.e. Yakub Abdul Razak Memon (supra), A.K.Roy (supra),

Zameer Ahmed Laitful Rehman Sheikh (supra), Kehar Singh

and others (supra) and State (NCT of Delhi) (supra) are

concerned, we are bound by the ratio laid down in the said

judgments. However, we are not sitting in appeal against the

order of conviction but what has been challenged before this

Court is the order rejecting the discharge application and

though this is an appeal under the provisions of the NIA

Act, we are aware of the limitation of venturing meticulously

into the evidence while assailing the order of rejection of an

application for discharge. However, when strong prima facie

suspicion of grave offence reveals from the papers of

chargesheet, the learned trial Court has committed no error

much less apparent error on the face of the record which

requires interference.

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12. Learned advocate for the appellant has himself

relied upon the judgment in the case of Dilawar Balu

Kurane (supra) wherein it is held thus :

"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;

Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in

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exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."

Thus, in the above referred case also, it is held that the

Court should not make roving inquiry into the pros and

cons of the matter and weigh evidence as if he was

conducting trial. In such circumstances, cited case goes

against the accused and as correctly held by the learned

trial Court to which we also concur that strong prima facie

of grave suspicion against the present appellant is made

out. Thus, we see no ex facie infirmities in the impugned

order. The appellant's complicity is clearly made out from

the papers of chargesheet and the investigation reveals that

the case is not rested solely on physical recovery of

narcotics drugs but is also based on conspiracy and